                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 20, 2018
               Plaintiff-Appellee,

v                                                                  No. 335597
                                                                   Kent Circuit Court
CHRISTOPHER LEE PELTIER,                                           LC No. 96-001857-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

       In 1996, defendant was convicted of felony murder, MCL 750.316(1)(b), carrying a
firearm during the commission of a felony (felony-firearm), MCL 750.227b, and conspiracy to
commit armed robbery, MCL 750.529. At the time of the offense, defendant was 15 years old.
He and two other minors conspired to commit an armed robbery of a store. Two boys, defendant
and the one carrying the firearm, entered the store. During the robbery, the boy with the firearm
shot and killed the storekeeper. The third boy acted as the get-away driver. Defendant was
sentenced to mandatory life imprisonment without parole for felony murder, life imprisonment
for conspiracy to commit armed robbery, and a consecutive two-year term for felony-firearm.

       Defendant’s sentence for felony murder was vacated following the United States
Supreme Court decisions in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407
(2012) (holding that mandatory imposition of life without parole for juveniles constituted cruel
and unusual punishment in violation of the Eighth Amendment); and Montgomery v Louisiana,
___ US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016) (holding that Miller applied retroactively).
At resentencing on September 30, 2016, Kent Circuit Court Judge Mark A. Trusock resentenced
defendant to 35 to 60 years’ imprisonment on the felony-murder charge pursuant to MCL
769.25a.

       On appeal, defendant raises two arguments. First, that the trial court relied on inaccurate
information when determining his sentence. Second, that the trial court failed to properly
consider the factors outlined in Miller. We agree with defendant that the trial court relied on
inaccurate information in sentencing him and so, remand for resentencing.

        In imposing sentence, the trial court properly concluded that defendant’s behavior and
progress while in prison was relevant, and addressed it in some detail. The court placed
significant emphasis on its conclusion that the Department of Corrections (DOC) still


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categorized defendant as a Level V security risk. This is the highest possible security
classification and indicated that defendant had demonstrated little, if any, rehabilitation despite
his many years of incarceration. The trial court stated:

              Your record in the prison system has not been good. I have a chart that—
       where you have been housed. Level Five is the highest level of security. You
       have been in there—as recently as January of 2014, January of [20]15, January—
       or February of [20]16, you were classified as Level Five. Evidently, in March
       [2016,] you were classified as a Level Four.

Unfortunately, the chart referred to by the trial court is not contained within the record provided
to this Court, and the trial court did not reference its origin.

        In his sentencing memorandum, defendant provided the court with an affidavit signed by
Patricia Caruso, a former Director of the Department of Corrections. She averred that she had
reviewed defendant’s DOC record and that defendant

       is currently housed in the lowest security level for which he is qualified as a
       prisoner serving a life sentence: Level II. His management level is the lowest
       possible assigned by the corrections institution, reflects that he is a low risk
       prisoner who is not a management or disciplinary problem. He would screen and
       be placed in the lowest possible security level as a Level I prisoner, the lowest
       level of confinement, if he were not serving a life sentence and was within four
       years of a minimum sentence release date.

She also noted that the DOC’s records classified defendant as “low risk for violence,” and that
“[c]learly[,] staff were comfortable with placing [defendant] in lower levels of security and his
behavior has confirmed their decisions.”

       The court was also provided with a supplemental affidavit from Caruso in which she
averred:

               A prisoner classification may reflect placement but is not always
       consistent with the true classification level a prisoner has been screened to. A
       prisoner may be housed at a level different than their classification indicates, as
       the system allows staff to place a prisoner in a different level for a variety of
       reasons. For example, Mr. Peltier was classified as Level IV on January 26, 2004.
       He actually screened to be classified as custody Level II and management Level
       II. However, the screener indicated that although his true level was II, he was in a
       Level IV bed pending Level II bed availability. Because he was in a Level IV bed
       his classified level reflected IV. On July 19, 2007, Mr. Peltier was classified as a
       Level IV. He screened a Level II/I but was housed in Level IV. There are several
       other dates where Mr. Peltier was screened to be classified as a Level Il/I, but
       classified higher due to lack of lower custody bed space. Again in 2016 Mr.
       Peltier was classified as a Level V. He screens as a Level II/I, and the screener
       notes he is in Level V due to bed space availability.




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               Another example of the stated classification being different from what a
       prisoner has been classified to, based on behavior and risk, is the Security
       Classification Screen Review dated 2/23/2016, completed at the Baraga
       Correctional Facility. The review demonstrates that Mr. Peltier screens as a Il/I
       classification. Level II would be his confinement level and is the lowest he can
       score as a lifer. Level I is his management level and is the lowest any prisoner
       can score. However, the staff screener notes that Mr. Peltier should be housed in
       Level IV to monitor his adjustment. Mr. Peltier was subsequently transferred to
       the Michigan Reformatory shortly thereafter, and is currently housed in Level II
       there. The temporary higher classification level does not reflect any higher risk
       assessment of Mr. Peltier, but just the effect of the monitoring system. This often
       occurs if staff[s] are not familiar with the prisoner. Those familiar with the
       classification system understand that these common occurrences do not typically
       reflect negative management or behavior issues.

              A review of Mr. Peltier's file indicates numerous times when he was
       housed at a higher level than his classification indicated, pending available bed
       space at his true security level. Other times, Mr. Peltier was placed in protective
       custody which is always classified as Level IV or V.


        The trial court’s conclusion that defendant was classified as a Level V security risk in
February 2016 and a Level IV security risk in March 2016, lacked substantial evidence, at least,
in light of these affidavits. When a sentencing decision is based on inaccurate information, the
proper remedy is resentencing. People v Haugh, 435 Mich 876; 458 NW2d 897 (1990); People v
Daniels, 192 Mich App 658, 675; 482 NW2d 176 (1991) (resentencing is required when
inaccurate information is relied on at sentencing or where the trial court fails to resolve a factual
dispute unless the issue is “of no moment” to the sentencing decision). 1




1
  “[I]t is well settled that the use of inaccurate information at sentencing may violate defendant’s
right to due process.” People v Sharp, 192 Mich App 501, 509-510; 481 NW2d 773 (1992),
citing US Const, Am XIV; Const 1963, art 1, § 17. See also People v Miles, 454 Mich 90, 100;
559 NW2d 299 (1997) (“[D]ue process is satisfied as long as the sentence is based on accurate
information and the defendant has a reasonable opportunity at sentencing to challenge that
information.”). In addition to inaccurate information, sentences based on “materially untrue”
assumptions also violate due process. Townsend v Burke, 334 US 736, 740-741; 68 S Ct 1252;
92 L Ed 1690 (1948).




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       We vacate defendant’s sentence and remand for resentencing. Given that determination,
we need not address defendant’s challenge to his sentence based upon Miller v Alabama, 567 US
460; 132 S Ct 2455; 183 LEd2d 407 (2012). We do not retain jurisdiction.



                                                         /s/ Jane E. Markey
                                                         /s/ Douglas B. Shapiro
                                                         /s/ Michael F. Gadola




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