PEOPLE v. MAXSON

SAWYER, J.

Defendant originally pled guilty to one count of assault with intent to commit criminal sexual conduct involving penetration. MCL 750.520g(1); MSA 28.788(7)(1). He was thereafter placed on five years probation. Subsequently, defendant pled guilty to one count of operating a motor vehicle while under the influence of intoxicating liquor, third offense. As a result of his OUIL-third offense conviction, defendant was charged with the instant offense of probation violation, to which he pled guilty. Following his guilty plea on the probation violation, the trial court sentenced defendant to a term of two to five years in prison. After the sentencing hearing, the sentence was changed by the trial court to a term of two to ten years in prison. Defendant now appeals and we affirm.

Defendant first argues that his conviction for OUIL-third offense was improper because it was based upon a former conviction allegedly obtained without the benefit of counsel, namely a 1984 plea-based conviction of unlawful blood alcohol level. We conclude that, even accepting as true the fact that the former conviction was obtained without the benefit of counsel, defendant's argument is without merit.

The defect in defendant's argument is twofold. First, defendant fails to fully recognize that the instant case involves his probation violation on the CSC charge, not his conviction for OUIL-third offense. The conviction for OUIL-third offense merely provides the basis for the probation violation. We do not believe it appropriate for defendant to collaterally attack the propriety of his OUIL-third offense conviction in the instant proceeding. Defendant had the opportunity in the OUIL-third offense proceeding to attack the propriety of charging him under the OUIL-third offense provision, rather than the OUIL-second offense provision, because of the prior conviction allegedly obtained without the benefit of counsel. See People v Clements, 72 Mich. App. 500, 503-504; 250 N.W.2d 100 (1976). Second, it is immaterial to the instant proceeding whether defendant was, in fact, guilty of OUIL-second offense or OUIL-third offense. Even assuming that defendant could successfully challenge his OUIL-third offense conviction, because of the prior conviction obtained without the benefit of counsel, the result would be that defendant could only be convicted of OUIL-second offense. Defendant presents no argument, nor are we aware of any viable argument, for the proposition that an OUIL-second offense conviction could not form the basis for a probation violation. Accordingly, defendant's argument on this issue is without merit.

Defendant next argues that a maximum sentence of five years for probation violation is valid even if the original charge carries a ten-year maximum. In essence, defendant is advancing the question of whether a ministerial correction to the maximum sentence imposed by the trial court was necessary or appropriate. This raises a question which appears to be one of first impression, namely, whether the maximum sentence for a probation violation is necessarily the same as the maximum sentence for the underlying offense. We conclude that it is. The probation statute provides that, when a probation is terminated or revoked, "the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made." MCL 771.4; MSA 28.1134. In light of this language, we conclude that the sentence to be imposed upon a probation violation must be in accordance with the permissible sentence for the underlying offense itself.

In all indeterminate sentences, the court sets the minimum term within its discretion and then must state the maximum term as set by statute. People v Walton, 17 Mich. App. 687, 691; 170 N.W.2d 315 (1969). Since the fixing of a maximum term in such a case is nondiscretional and is merely a ministerial act to comply with the statute, a misstatement at the time of sentencing by the trial court of the maximum sentence may be legally corrected by an order nunc pro tunc. Id. Thus, we conclude that the appropriate maximum sentence in the case at bar is that provided for by statute for assault with intent to commit criminal sexual conduct involving penetration, which was the underlying offense. The Legislature has fixed the maximum sentence for such an offense at ten years in prison. MCL 750.520g; MSA 28.788(7). Accordingly, the sentence stated by the trial court at the sentencing hearing, two to five years in prison, was invalid as it failed to correctly state the statutory maximum sentence of ten years. Similarly, since the fixing of a maximum sentence is a ministerial act, it was appropriate for the court to change the maximum sentence on the judgment of sentence from the previously stated five years to the statutorily required ten years. Accordingly, defendant's arguments on this issue are without merit.

Defendant next challenges the accuracy of the presentence report. The alleged inaccuracy in the presentence report is that it indicates that he was convicted of OUIL-third offense which, as discussed above, defendant now challenges because of the prior conviction obtained without the benefit of counsel. However, defendant raised no objections to the accuracy of the presentence report at the time of sentencing and, therefore, this issue has not been preserved for appeal. People v Herndon, 98 Mich. App. 668; 296 N.W.2d 333 (1980). Similarly, defendant's challenge to the presentence report's not clearly reflecting the nonviolent nature of the underlying offense has not been properly preserved for appeal.

Affirmed.