                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 10, 2015
               Plaintiff-Appellee,

v                                                                  No. 323089
                                                                   Berrien Circuit Court
SHAKEER DONTEA TUNSTALL,                                           LC No. 2012-002920-FH

               Defendant-Appellant.


Before: OWENS, P.J., and MURPHY and HOEKSTRA, JJ.

PER CURIAM.

       After pleading guilty to conducting a criminal enterprise, MCL 750.159i, defendant
appeals by leave granted, arguing that his presentence investigation report (PSIR) is inaccurate
and must be corrected. We find no grounds for relief and affirm.

       The present case arises from defendant’s involvement in a fraudulent check scheme in
which fake checks printed from a computer were cashed at various businesses. On November 5,
2013, defendant pled guilty to conducting a criminal enterprise and, in exchange, the prosecutor
agreed to dismiss a charge of using a computer to commit a crime, three counts of uttering and
publishing, and a charge in another case of driving without a valid operator’s license. The
prosecutor also agreed to the “lowest possible sentence under the guidelines,” whatever those
guidelines turned out to be. The recommended minimum sentencing range under the legislative
guidelines was 57 to 95 months, and the trial court sentenced defendant to 57 to 240 months’
imprisonment. Defendant now appeals by leave granted.

        On appeal, defendant does not challenge the validity of his plea, nor does he seek
resentencing. Instead, defendant challenges the accuracy of information contained in his PSIR,
which he contends could adversely affect his parole date or placement with the Department of
Corrections, and he requests a remand for the correction of the PSIR. Specifically, with regard
to an adult conviction for possession of marijuana, defendant contends that the sentence, reported
in the PSIR as “8 years 60 days confinement remainder time on probation,” is confusing and
potentially misleading. Defendant also claims on appeal that a 2002 juvenile charge for criminal
sexual conduct and a 2009 conviction for criminal damage to property should be stricken from
his PSIR because defendant was not convicted of these offenses and defense counsel was
ineffective for failing to challenge these convictions at sentencing.



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        The PSIR is an information gathering tool for the sentencing court. Morales v Mich
Parole Bd, 260 Mich App 29, 45; 676 NW2d 221 (2003). The scope of the report is necessarily
broad, and it must include any information that may aid the court at sentencing. Id. at 46, citing
MCR 6.425(A). In addition, the Department of Corrections also makes critical decisions
regarding a defendant’s status based on the information contained in the PSIR. People v Lloyd,
284 Mich App 703, 706; 774 NW2d 347 (2009). “To ensure accuracy, the defendant must be
given an opportunity to review his presentence investigation report before sentencing.” Morales,
260 Mich App 634 689; 780 NW2d 321 (2009). And, “[a]t sentencing, either party may
challenge the accuracy or relevancy of any information contained in the presentence report.”
People v Waclawski, 286 Mich App at 689. However, information in the PSIR is presumed
accurate and, if a defendant challenges the information, the defendant “bears the burden of going
forward with an effective challenge.” Lloyd, 284 Mich App at 705. If a defendant makes an
effective challenge, “the prosecution must prove by a preponderance of the evidence that the
facts are as the prosecution asserts.” Id. When the accuracy of the information in the PSIR is
challenged, the sentencing court must respond. People v Spanke, 254 Mich App 642, 648; 658
NW2d 504 (2003). However, the court has wide latitude in selecting its response. Id. It may
“determine the accuracy of the information, accept the defendant’s version, or simply disregard
the challenged information.” Id. If the court disregards the challenged information, “it must
clearly indicate that it did not consider the alleged inaccuracy in determining the sentence.” Id.
at 649. In contrast, “[i]f the court finds that challenged information is inaccurate or irrelevant,
that finding must be made part of the record and the information must be corrected or stricken
from the report.” Waclawski, 286 Mich App at 690. See also MCR 6.425(E)(2). On appeal, we
review the sentencing court's response to a defendant’s challenge to the PSIR for an abuse of
discretion. Spanke, 254 Mich App at 648.

         In this case, at sentencing, defense counsel indicated that there was “one other thing I
think could be written better in the report.” Looking to the last listed adult conviction in the PSIR,
counsel argued that the “sentence disposition,” which read “8 years 60 days confinement
remainder time on probation,” was confusing. Looking at this phrasing, the trial court indicated
that it understood the sentence disposition to mean “they gave him eight years and they told him
to serve 60 days in jail, and the rest of it on probation.” Defense counsel did not dispute the trial
court’s understanding of the sentence imposed, but requested “that there be a parenthesis around
60 days confinement” to avoid confusion. Although the trial court did not make a finding of
inaccuracy, the trial court agreed to make this change and the prosecutor indicated that he had no
objection. However, the PSIR before us does not reflect this change, and defendant argues that
the case should be remanded for the correction to be made.

        Contrary to defendant’s arguments, we see no need to remand for the stylistic change he
requests. Defendant does not contest the accuracy or relevancy of the information reported and,
because the information is accurate and relevant, there is no need for a change to the PSIR. See
Waclawski, 286 Mich App at 690; Lloyd, 284 Mich App at 705. Indeed, we agree with the trial
court’s plain reading of the sentence at issue, and we see nothing misleading or confusing in the
wording which would necessitate the grammatical modifications urged by defendant. In short,
because the information is accurate and relevant, the trial court did not abuse its discretion
insofar as the court ultimately failed to make the requested change, and we deny defendant’s
request to remand for correction of the PSIR on this basis.


                                                 -2-
        Next, defendant argues that remand is necessary because his listed juvenile criminal
history, item one, and adult criminal history, item three, are inaccurate because he was not
convicted of those offenses. Defendant failed to raise this argument at sentencing. See People v
McCrady, 244 Mich App 27, 32; 624 NW2d 761 (2000); MCR 6.429(C). Consequently, given
the absence of a challenge from defendant, the PSIR is presumed to be accurate and there is no
basis in the record for defendant’s claim of inaccuracy. See People v Callon, 256 Mich App 312,
334; 662 NW2d 501 (2003); People v Bailey, 218 Mich App 645, 647; 554 NW2d 391 (1996).
Indeed, far from challenging the inclusion of these offenses in the PSIR, defendant personally
acknowledged at sentencing that he had a chance to review the PSIR and that the report was
“accurate.” By affirmatively agreeing that the records were accurate, defendant waived any
further challenge. See People v Kowalski, 489 Mich 488, 503-505; 803 NW2d 200 (2011) (clear
expression of satisfaction constitutes waiver).

        To the extent defendant claims that counsel provided ineffective assistance by failing to
object to the inclusion of these offenses in his PSIR, his claim is without merit. A defendant
claiming ineffective assistance bears the burden of establishing the factual predicate of his claim,
People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999), and, in this case, defendant offers
absolutely no evidence to establish that there was any inaccuracy in the PSIR to which counsel
might have objected. To the contrary, the PSIR is presumed to be accurate and, after personally
reviewing the PSIR, defendant affirmatively stated on the record that the PSIR was accurate. On
this record, defendant has not established the factual predicate of his claim. See id. Given
counsel’s review of the PSIR as stated on the record, and the various challenges raised by
defense counsel at sentencing, we see no basis for concluding that counsel was ineffective. Cf.
Bailey, 218 Mich App at 648.

       Affirmed.



                                                             /s/ Donald S. Owens
                                                             /s/ William B. Murphy
                                                             /s/ Joel P. Hoekstra




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