                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 18, 2018
               Plaintiff-Appellee,

v                                                                   No. 339252
                                                                    Wayne Circuit Court
ELMORE NICHOLS, JR.,                                                LC No. 12-008776-01-FH

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

       Defendant was convicted, following a bench trial, of first-degree home invasion, MCL
750.110a(2). Defendant was originally sentenced, as a fourth habitual offender, MCL 769.12, to
280 months to 60 years’ imprisonment. After defendant’s first appeal to this Court, we affirmed
defendant’s conviction but remanded for resentencing. People v Nichols, unpublished per
curiam opinion of the Court of Appeals, issued June 17, 2014 (Docket No. 315284). After
following our instructions on remand, the trial court imposed the same sentence. Defendant now
appeals as of right, and we affirm but remand for the correction of the amended judgment of
sentence.

                                       I. BACKGROUND

        In his first appeal, defendant argued, as pertinent to this appeal, that he was entitled to
resentencing because the trial court erroneously assessed 10 points for offense variable (OV) 13.
This Court affirmed defendant’s conviction, but vacated his sentence and remanded the matter
for resentencing only. Id. at 3. We determined that the “incomplete available record” did not
support the trial court’s assessment of 10 points for defendant’s OV 13 score, and ordered the
trial court to “ascertain and articulate the crimes occurring within a period of five years,
including the sentencing offense.” Id. at 4-5. On remand, the trial court concluded that the
assessment of 10 points for OV 13 was appropriate because defendant committed three offenses
within a five-year period. Based on this, defendant’s recommended guidelines range remained
unchanged, and the trial court imposed the same sentence of 280 months to 60 years’
imprisonment. On appeal, defendant does not challenge the trial court’s determination
concerning the assessment of points for OV 13, but raises additional issues concerning his
sentence.

                                          II. THE PSIR
                                                -1-
                                 A. STANDARD OF REVIEW

        Defendant first argues that he is entitled to resentencing because the trial court did not
obtain an updated PSIR before resentencing. We disagree.

        An issue must be raised before and, addressed and decided by, the lower court in order to
be preserved for appellate review. People v Metamora Water Serv, Inc, 276 Mich App 376, 382;
741 NW2d 61 (2007). Defendant did not raise an issue concerning the PSIR at resentencing.
Therefore, defendant has not preserved the issue for appellate review. This Court reviews
unpreserved issues for plain error affecting a defendant’s substantial rights. People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999). Under the plain error standard, “(1) error must have
occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected [the
defendant’s] substantial rights.” Id. at 763. “The third requirement generally requires a showing
of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id.

                                         B. ANALYSIS

        Before a person convicted of a felony is sentenced, the probation department must
prepare a PSIR for the trial court’s use, and “the trial court is obligated to utilize a reasonably
updated [PSIR].” MCL 771.14(1); MCR 6.425(A)(1); People v Hemphill, 439 Mich 576, 579;
487 NW2d 152 (1992). A PSIR, which must include the information listed in MCL
771.14(2)(a)-(h) and MCR 6.425(A)(1), is necessary to ensure that the trial court imposes a
punishment that is “tailored not only to the offense, but also to the offender.” People v Miles,
454 Mich 90, 97; 559 NW2d 299 (1997), citing People v Triplett, 407 Mich 510, 513-515; 287
NW2d 165 (1980). The PSIR must be “reasonably updated” and include “complete, accurate,
and reliable” information. Triplett, 407 Mich at 515. A PSIR is not “reasonably updated” if it is
several years old, was prepared in connection with unrelated offenses, or “significant
allegations” exist “that the defendant’s circumstances [have] changed” in the meantime.
Hemphill, 439 Mich at 580-581 (citations omitted). While a defendant may not waive the
production of a PSIR at sentencing, the defendant or the prosecutor may waive the right to the
preparation of a reasonably updated PSIR at resentencing “where each believes the previously
prepared report is accurate.” Id. at 581-582. However, this option is not available if the existing
PSIR is “manifestly outdated[.]” Id. at 582. A PSIR is manifestly outdated if it “contain[s]
information that [is] manifestly stale.” Id.

        Importantly, there is no indication that the existing PSIR in this case was not “reasonably
updated[.]” Triplett, 407 Mich at 515. On February 27, 2013, a PSIR was prepared for
defendant’s March 1, 2013 sentencing for his bench-trial conviction for first-degree home
invasion. Notably, on appeal, defendant, aside from generalized statements relating to his
“institutional record[,]” does not assert that the PSIR contains inaccurate or incomplete
information or that there had been a significant change of circumstance between sentencing and
resentencing to require an updated PSIR. Moreover, at resentencing, both defendant and the
prosecution had an opportunity to informally update the trial court about relevant circumstances
impacting defendant’s resentencing that occurred between defendant’s sentencing and
resentencing. While the prosecution informed the trial court regarding defendant’s subsequent
convictions of first-degree home invasion and related offenses following his conviction for the
offense giving rise to this appeal, an update was not given on defendant’s behalf indicating that

                                                -2-
relevant circumstances had changed that would impact defendant’s resentencing. Therefore,
while cognizant of the length of time that elapsed between defendant’s sentencing and
resentencing, we are satisfied that defendant’s PSIR was reasonably updated where it was
prepared in connection with the same conviction, and the record does not yield any indication
there were significant intervening changes in defendant’s circumstances between his March 1,
2013 sentencing and his November 18, 2016 resentencing. See Hemphill, 439 Mich at 580-581.

         Even if this Court were to accept defendant’s argument that the trial court erred in not
consulting an updated PSIR, defendant has not established that he incurred prejudice. Prejudice
exists when the plain error affected the outcome of the lower court proceedings. People v
Borgne, 483 Mich 178, 196; 768 NW2d 290, reh gtd in part on other grounds 485 Mich 868
(2009). Defendant’s argument that he was prejudiced simply because the presentence report was
not updated is insufficient to show plain error warranting reversal. Notably, as we have observed
earlier in this opinion, defendant has not specified any updated information that he claims that
the trial court should have been provided with before resentencing that would have impacted his
sentence. Defendant also does not challenge the validity of any information in the original PSIR.
In fact, the only possible change to defendant’s PSIR discernable from the record was that
defendant incurred an additional conviction for first-degree home invasion, which actually
undermined defendant’s position that points should not be assessed for OV 13. Therefore, we
are not persuaded that defendant was prejudiced by the trial court’s reliance on the existing
PSIR. See Borgne, 483 Mich at 196.

                      III. TRIAL COURT’S SENTENCING DISCRETION

       Finally, defendant argues that the trial court abused its discretion in resentencing him.
Specifically, defendant alleges that the trial court simply adopted the original sentence without
independently exercising its own sentencing discretion. We disagree.

                                  A. STANDARD OF REVIEW

       Although defendant objected to the trial court’s assessment of 10 points for OV 13 at
resentencing, he did not raise the issue that he is now raising on appeal, that the trial court failed
to exercise its discretion by imposing the same original sentence. Therefore, this Court will
review this issue for plain error affecting defendant’s substantial rights. Carines, 460 Mich at
763.

                                          B. ANALYSIS

        In support of his argument that the trial court on resentencing did not properly exercise its
own discretion in imposing sentence, defendant points to an isolated comment by the trial court,
indicating that it would respect the decision of the predecessor judge. We recognize that, as a
general matter, “[t]he failure to exercise discretion when called on to do so constitutes an
abdication and hence an abuse of discretion.” People v Stafford, 434 Mich 125, 134 n 4; 450
NW2d 559 (1990). However, a review of the record does not support defendant’s contention
that the trial court on resentencing simply adopted the sentence of the predecessor judge. In
defendant’s first appeal, this Court instructed the trial court to “ascertain and articulate the
crimes occurring within a period of five years, including the sentencing offense.” Nichols,

                                                 -3-
unpub op at 4. When the trial court on remand determined that the assessment of 10 points was
appropriate for OV 13, defendant’s recommended minimum guidelines range was left
undisturbed. Thus, while the trial court did ultimately impose an identical sentence, our review
of the transcript of the resentencing hearing reflects that the trial court conducted an independent
analysis concerning the propriety of defendant’s sentence, particularly with regard to whether
points ought to be assessed pursuant to OV 13. Therefore, defendant’s argument that the trial
court did not properly exercise its discretion in imposing defendant’s sentence on resentencing is
unavailing.

         Finally, we note that the amended judgment of sentence contains two errors. First, it
reflects that defendant was convicted by a jury, rather than following a bench trial. This is
incorrect and the judgment of sentence must be corrected to reflect that defendant’s conviction
for first-degree home invasion, MCL 750.110a(2), followed a bench trial. Additionally, the
amended judgment of sentence reflects that defendant was convicted in the present case, Case
No. 12-008776-01-FH in the Wayne Circuit Court, of receiving and concealing stolen property
with a value of $200 or more but less than $1,000, MCL 750.535(4)(a). Defendant was not
convicted of this offense in this case1 and the amended judgment of sentence must be updated to
reflect this correction.

                                       IV. CONCLUSION

        Defendant’s sentence is affirmed. However, we remand for the “ministerial task of
correcting the [amended] judgment of sentence.” People v Avant, 235 Mich App 499, 522; 597
NW2d 864 (1999). We do not retain jurisdiction.



                                                             /s/ Michael J. Kelly
                                                             /s/ Jane E. Markey
                                                             /s/ Karen M. Fort Hood




1
  The record reflects that defendant was convicted of this offense in Case No. 12-007351-01-FH
in the Wayne Circuit Court.


                                                -4-
