People v. Hampton

439 N.W.2d 365, 176 Mich. App. 383

• Court: Michigan Court of Appeals
• Decided: April 4, 1989
• Docket: Docket 104190
• Status: Published

Opinions

Per Curiam.

On February 24, 1984, defendant pled guilty to a charge of larceny from a person, MCL 750.357; MSA 28.589. On July 18, 1985, defendant was sentenced to three years probation with the first six months to be spent in the county jail. On January 5, 1987, a probation violation hearing was held and defendant was found guilty of violating a condition of his probation. On January 15, 1987, defendant was sentenced to six to ten years in prison. Defendant appeals as of right. We affirm.

Defendant first argues that he was deprived of his constitutional right to effective assistance of counsel at the probation violation hearing and at sentencing. Defendant maintains that defense counsel failed to adequately prepare for the probation violation hearing and was ineffective in failing to review the presentence report with defendant before sentencing.

Trial counsel is presumed to have afforded effective assistance. People v Reinhardt, 167 Mich App 584, 591; 423 NW2d 275 (1988). This presumption can only be overcome by a showing of counsel’s failure to perform an essential duty, which failure was prejudicial to the defendant. The burden of proof is on defendant. Id.

In the present case, defendant did not sustain his burden of proving ineffective assistance of counsel. Based upon our review of the record, whether we follow Strickland v Washington, 446 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Dalessandro, 165 Mich App 569; 419 NW2d 609 (1988), lv den 430 Mich 880 (1988); or People v Garcia, 398 Mich 250, 264-266; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977), we conclude that defendant was not denied the effective assistance of counsel.

Defendant next argues that the trial court impermissibly considered at sentencing the fact that defendant had two charges of armed robbery pending against him. The trial court has wide discretion in sentencing and may consider defendant’s other criminal activity that did not result in conviction if defendant has a chance to refute the information. People v Johnson, 164 Mich App 634, 645; 418 NW2d 117 (1987). Defendant maintains that he was not given an opportunity to refute the charges at the time of sentencing. We disagree. Our review of the record reveals that defendant was afforded allocution prior to the imposition of sentence but that defendant did not refute the charges of armed robbery. Thus, we find no error.

Defendant lastly argues that the trial court abused its discretion in sentencing to the extent that it should shock the conscience of this Court. We disagree. In this case, the trial court properly considered defendant’s failure to abide by the court’s probation orders and defendant’s lack of rehabilitative potential as factors in imposing sentence. Furthermore, defendant’s sentence was within the limits prescribed by statute. Thus, we find that the trial court did not abuse its discretion in sentencing to the extent that the sentence shocks the conscience of this Court. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983).

Affirmed.