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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION December 10, 2015

9:10 a.m.

v No. 321732
St. Clair Circuit Court JAMES ROBERT MABEN, LC No. 13-002103-FH

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and M ARKEY and M. J. K ELLY , JJ.

P ER C URIAM

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Defendant, James Robert Maben, pleaded guilty to assault by st rangulation or suffocation, MCL 750.84(1)(b), for which the trial court senten ced him as a fourth habitual offender, MCL 769.12, to serve six years and four months to 20 years in prison. On appeal by leave granted, Maben raises s everal sentencing errors. 1 We conclude that the trial court did not
err when it scored Maben’s sen tencing variables; however, we ag ree that the trial court abused its discretion when it refused to consider Maben’s challenges to hi s presentence investigation report (PSIR). For that reason, we rem and for a hearing to address th ose challenges.

Maben’s conviction arises out of an altercation with his broth er. As a factual basis for his plea, Maben stated that he became involved in a verbal altercat ion with his brother, who worked for him. He admitted that he placed his hands around his broth er’s throat and began to strangle him by applying pressure and imped ing his ability to breathe.

According to the author of the PSIR, police officers observed red marks on Maben’s brother’s neck, and took photographs. Additionally, his brothe r reported to officers that he nearly lost consciousness and de fecated during the assault; how ever, he told the probation officer who prepared the PSIR that he in fact lost consciousness. Mabe n’s brother refused to be

1 In addition to the claims addressed in this appeal, Maben chal lenged the trial court’s use of facts not found by the jury to score his sentencing variables. However, after our Supreme Court
issued its decision in People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015), Maben filed a notice with this court indicating that, after consulting with h is appellate lawyer, “he has elected not to pursue this particular i ssue on appeal.” We have limite d our review accordingly.-2- transported to a hospital, but related that he would obtain tre atment on his own. Maben objected to several portions of the PSIR and the scoring of his sentenci ng variables. The trial court rejected most of the challenges, but agreed to strike reference s to a prior sexual assault against a child and to a personal protection order.

Maben first argues that the trial court erred in scoring prior record variable (PRV) 5 and offense variable (OV) 3. A trial court’s findings of fact at s entencing must be supported by a preponderance of the evidence; thi s Court reviews a trial court ’s findings of fact for clear error. People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013). This Court reviews d e novo whether the facts are adequate t o satisfy the statutory criteri a for scoring the variable. Id

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The trial court scored 50 points for Maben’s PRVs and 30 point s for his OVs, which put his recommended minimum sentence range at 19 to 38 months in pr ison. See MCL 777.65. After doubling the maximum of the range to reflect his status a s a habitual offender, see MCL 777.21(3)(c), Maben’s recommended minimum sentence range was 19 to 76 months.

Maben first argues that the trial court erred when it scored P RV 5 at 20 points; specifically, he argues that he only has six qualifying prior m isdemeanor convictions, not seven or more. The trial court had to score PRV 5 at 20 points if, i n relevant part, Maben had seven or more prior misdemeanor convictions. MCL 777.55(1)(a). A prior misdemeanor conviction may be scored only “if it is an offense against a person or propert y, a controlled substance offense, or a weapon offense.” MCL 777.55(2)(a). Maben argues that the tr ial court erred when it
determined that his convictions for malicious use of a telecomm unications device constituted offenses against a person as required by MCL 777.55(2)(a).

A person is prohibited from maliciously using “any service pro vided by a telecommunications service provider with intent to terrorize, f righten, intimidate, threaten, harass, molest, or annoy another person , or to disturb the peace and quiet of another person ” through various types of communi cations. MCL 750.540e(1) (emph asis added). The Legislature has not adopted classifications for misdemeanor offenses such a s this one. See MCL 777.5; People v Bonilla-Machado , 489 Mich 412, 422; 803 NW2d 217 (2011) (noting that the offen se categories stated under MC L 777.5 apply to felonies).

Maben contends that analogous fel ony offenses have been catego rized as offenses against public order or public safety, and therefore, the misdemeanor o ffense should not be classified as an offense against a person or property, citing MCL 750.540 and MCL 750.167d. However, those offenses and another offense, which Maben describes but d oes not cite, do not proscribe activity directed at a particular individual. By contrast, the malicious use of a telecommunications device specifically addresses communications directed at “another person.” MCL 750.540e(1). Therefore, the trial court correctly determin ed that it is an offense against a person and scored PRV 5 accordingly.

Next, Maben argues that the trial court erred in scoring 10 po ints under OV 3. The trial court had to score OV 3 at 10 points if “[b]odily injury requir ing medical treatment occurred to a victim.” MCL 777.33(1)(d). Maben maintains that there was no evidence that his brother actually suffered a bodily injury that required medical treatme nt.-3- The author of the PSIR wrote ou t Maben’s brother’s impact stat ement. Maben’s brother said “he took himself to the River District Hospital after the attack”, “suffered back injuries”, and would be “seeing a specialist to get a CAT Scan to see if h e has any permanent damage.”
His brother also related that “he was choked unconscious and hi s brain was denied oxygen.” Although Maben’s brother’s stateme nt plainly supports the trial court’s score, Maben argues that, because he disputed at sentencing that his brother actually wen t to the hospital, the trial court erred in scoring 10 points for OV 3 without independently verif ying the report.

The trial court may rely on reasonable inferences arising from the record evidence to support a particular score. People v Earl , 297 Mich App 104, 109; 822 NW2d 271 (2012). In providing a factual basis for his guilty plea, Maben acknowledg ed that he placed his hands around his brother’s neck and throat, and applied pressure such that his brother suffered injury. In addition, Maben did not dispu te the information in the PSIR that officers “observed redness” to his brother’s “neck area” and that his brother “complained o f soreness to his neck and throat
area.” The author of the PSIR also indicated that Maben’s brot her refused an ambulance, but
told the officers that he “w ould seek treatment on his own.”

The phrase “ ‘requiring medical treatment’ ” for purposes of O V 3 “refers to the necessity
for treatment and not the victim ’s success in obtaining treatme nt.” MCL 777.33(3). Thus, it was not necessary to establish that Maben’s brother actually went t o the hospital. Moreover, Maben’s description of the manne r in which he strangled his bro ther, and the undisputed
information that the officers observed redness around his broth er’s neck, that his brother defecated during the assault, r eported soreness to his neck and throat, and that he told the officers that he intended to seek treatment, provided independent suppor t for the trial court’s finding. Although Maben notes that his brot her’s statements concerning w hether he lost consciousness were inconsistent, the inconsistencies do not require an eviden tiary hearing. Regardless of
whether his brother lost consci ousness, a preponderance of the evidence supports the trial court’s 10-point score. 2

Next, Maben argues that he is entitled to resentencing or corr ection of the PSIR because the trial court failed to adequately address several of his cha llenges to it. “This Court reviews a trial court’s response to a defendant’s challenge to the accura cy of a PSIR for an abuse of
discretion.” People v Uphaus (On Remand) , 278 Mich App 174, 181; 748 NW2d 899 (2008). A
trial court abuses its discretion when it selects an outcome ou tside the range of reasonable and principled outcomes. Id

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In Morales v Parole Bd , 260 Mich App 29, 45-46; 676 NW2d 221 (2003), this Court discussed the purpose and scope of a presentence report and exp lained that the PSIR was intended to assist the parole board in making rel ease decisions and to enhance public safety:

2 Maben also argues that his trial lawyer was ineffective for co nceding that five points could be scored under OV 3. However, give n our resolution of this scori ng issue, it is unnecessary to address whether his trial lawy er’s concession amounted to ineff ective assistance.-4- The presentence investigation report is an information-gatheri ng tool for use by the sentencing court. Ther efore, its scope is necessari ly broad. A judge preparing to sentence a defendant may consider comments made by the defendant to the probation officer during the presentence interview in ad dition to evidence adduced at trial, public records, hearsay relevant to the defen dant’s life and character, and other criminal conduct for which the defendant h as not been charged or convicted.

The Michigan Court Rules provid e that the presentence investig ation report must include “a complete description of the offense and the circumstances surrounding it, . . . information concerning the financial, soc ial, psychological, or physical harm suffered by any victim of the offense, . . . any statement the defendant wishes to make . . . [and] any other information thatmay aid the court in sentencing.” To ensure accuracy, the defendant must be give n an opportunity to review his presentence invest igation report before sentencin g. [citations omitted.]

As this Court observed in People v McAllister , 241 Mich App 466, 477 n 3; 616 NW2d 203 (2000), remanded on other grounds 465 Mich 884 (2001), the presentence report follows the defendant to prison; it may hav e ramifications for purposes of security classification or parole consideration when appropriate. Accordingly, a defendant must be given an “opportunity to explain, or challenge the accuracy or relevancy of, any informa tion in the presentence report . . . .” MCR 6.425(E)(1)(b). “If any information in the prese ntence report is challenged, the court must allow the parties to be heard regarding the challeng e, and make a finding with respect to the challenge or determine that a finding is unnecessary bec ause it will not take the challenged information into account in sentencing.” MCR 6.425(E)(2). “If the court finds merit in the challenge or determines that it will not take the challenged in formation into account in sentencing, it must direct the probation officer to” correct or delete the challenged information. MCR 6.425(E)(2)(a). The Legislature has also recognized that a defendant has the right to challenge the accuracy of the information in a PSIR. See MCL 7 71.14(6).

It is presumed that unchallenged information in the PSIR is ac curate, and a judge is entitled to rely on the information unless a defendant raises a n effective challenge. People v Harper , 479 Mich 599, 642 n 72; 739 NW2d 523 (2007). When informatio n is challenged, the sentencing court has wide latitude in how to respond to the cha llenged information. People v Spanke , 254 Mich App 642, 648; 658 NW2d 504 (2003). “The court may d etermine the accuracy of the information, accept the defendant’s version, or simply disregard the challenged
information.” Id . However, if the court chooses to disregard the challenged in formation, it must clearly indicate that it did not consider the alleged inaccurac y in determining the sentence. Id . at 649. “If the court finds the challenged information inaccurate or irrelevant, it must strike that
information from the PSIR before sending the report to the Depa rtment of Corrections.” Id

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Maben filed a two-page, 15-item list of objections to the cont ents of the PSIR, with most objections pertaining to statement s attributed to his brother. At the start of the sentencing proceeding, the trial court noted that it would not expend an h our on sentencing and commented that Maben’s objections involved the word of one party against another. For that reason, it stated, “I don’t know that there’ s really any need to respond t o them.” It did, however, later-5- agree to strike an allegation i nvolving a personal protection o rder and allegations that Maben had sexually assaulted a 12-year-old c hild. The trial court also d enied Maben’s pos t-sentencing motion challenging the accuracy of the PSIR. The court comment ed that the PSIR is “presumptively accurate,” and stated that it had “no authority” to strike allegations in a victim’s impact statement.

We agree that the trial court failed to adequately resolve Mab en’s challenges to the accuracy of the PSIR. The trial court erred to the extent that it believed it was not required to resolve his challenges because t he PSIR is presumptively accura te. The presumption of accuracy applies only to unchallenged information. Harper , 479 Mich at 642 n 72. The trial court also erred in refusing to consider h is challenges to factual informa tion related in the impact statement. The Legislature “has determined the contents of the PSIR and ha s given victims the discretion to determine whether their victim impact statements may be include d in the PSIR . . . .” McAllister

, 241 Mich App at 476-477. We agree that a trial court is not re quired to strike a victim’s subjective statements about the impact of a defendant’s crime m erely because a defendant disputes those statements. This Court has recognized that the sentencing standards for ensuring that the goals of sentencing are met, along with the court’s kn owledge that victim impact statements are the subjective opi nions by victims, are sufficie nt protections to ensure that a defendant is not sentenced in response to emotional pleas. Id. at 476-477 n 2. In this case, however, the information went beyond describing the impact of M aben’s conduct. It included factual allegations about other uncharged crimes, including tha t Maben had killed cats in front of children, had a “bodyguard/hit man,” and had “informed people” that he was going to kill the prosecutor, rape his wife, and kill his family. These allegati ons did not involve the offense or Maben’s brother’s subjective statements about the impact of Mab en’s crime. Moreover, the statement was not written by Maben’s brother, but was recorded by the author after interviewing Maben’s brother. To the extent that the impact section of the PSIR contained factual allegations unrelated to Maben’s crime, and which did not involve Maben’s b rother’s subjective statements, Maben was entitled to challenge the accuracy of the information , particularly considering that the content could have consequences in prison and with the parole b oard. Id. at 477 n 3.

Because the trial court failed to adequately resolve Maben’s c hallenges, we remand this case for proper consideration of his challenges. It is unclear to what extent the trial court may have relied on the challenged information in sentencing. There fore, on remand, the trial court shall resolve Maben’s challenges in accord with MCR 6.425(E) an d MCL 771.14(6), and also clarify whether any information found to be inaccurate or irrel evant affected the trial court’s sentencing decision. If it is determined that information foun d to be inaccurate or irrelevant played a role in the trial court’s sentencing decision, the tri al court shall resentence him. Otherwise, the trial court need only make such changes to the P SIR that it deems in its discretion
to be warranted. See People v Thompson , 189 Mich App 85, 88; 472 NW2d 11 (1991).

Affirmed, but remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Amy Ronayne Krause /s/ Jane E. Markey /s/ Michael J. Kelly