*1 1973] v LaPine v LaPINE PEOPLE Report. 1. Criminal Law —Sentence—Presentence presentence report judge, entitled to review a A concerning a defendant’s ante- him a circumstances, character, cedents, to assist in 771.14). (MCLA769.8, to the individual sentence Report 2. Criminal Law —Sentence—Presentence Rec- —Juvenile ord. presentence report a defendant age authorities and within the 712A.23). (MCLA not to statute Report —Civil Commit- 3. Criminal Law —Sentence—Presentence. ments. regardifag a commit- defendant’s civil Records and information proper subjects for ments were Report Accuracy. 4. Criminal Law —Sentence—Presentence — information; upon must be based accurate A valid sentence inaccurate where have been held to be constitu- to which was later found conviction was referred infirm, tionally court referred to and a trial sentence, passing pending charges against a defendant by the defendant other offenses were had in fact committed that defendant offenses. Report Right 5. Criminal to Ex- — Law —Sentence—Presentence amine — prejudicial persuasive ground which to claim There is no given opportunity to not an because defendant was the record discloses examine the in Headnotes References for Points 2d, [1, Am Jur Criminal Law § 3-6] Depend- Courts, Delinquent 7, 2d, [2, 47 Am Jur Juvenile ent Children §§ Apr [May- request by or his counsel in a defendant the trial court to so that a denial could have any misinformation corrected and been made or where there is presentence report proof that the no contention or was inaccu- *2 rate. Report —Criminal 6. Criminal Law —Presentence Involvement— review and considera- sentencing judge by the where there is no denial of report, involvement as contained and criminal no con- unreliable, report is inaccurate or tention that the and where infirmity. there is of Record. 7. Criminal Law —Sentence—Juvenile error in A trial did not commit record of a defendant impose on him. Record.
8. Criminal Law —Sentence—Juvenile may not. be used in A defendant’s sen- tence. Hood, F.
Appeal Chippewa, from William 6, 1973, April Division Grand Submitted 15560.) (Docket May Decided Rapids. No. convicted, plea LaPine was on his of
Jerry ap- taking of indecent liberties. Defendant guilty, peals. Affirmed. A. Robert Kelley, Attorney
Frank J. General, Elliott, Farrell Derengoski, General, Solicitor Ap- (Prosecuting Attorneys Prosecuting Attorney Lewis, Director, Thomas R. Service, pellate Hunter, counsel), D. James for Attorney, Staff people. Phelps, B. John Appellate De- Assistant State fender, for defendant. Opinion of the Court Holbrook, J.,P. and T. M. Burns
Before: Churchill,* JJ.
Holbrook, charged P. J. Defendant with 750.520; MSA 28.788. statutory rape. MCLA He liberties. to indecent pled guilty 28.568. Defendant sentenced to 30 in prison. to 10 years months challenges the appeal, propriety On sentencing procedure employed by use of alleges improper pre- court. He report. that he must be Defendant contends resentenced . following reasons: 1. The reliance on civil commitments court’s constitutionally prohib- sentence was ited. *3 of arrests which did not result Consideration aggravation of sentence. convictions of defendant’s Consideration improper.
was entitled to At him presentence report which antecedents, character, and concerning defendant’s 771.14; MCLA MSA 28.1144. This is circumstances. individual. to ássist the sentence to the MCLA MSA 28.1080. presentence report
The age of the is within the to authorities and this is not (598.23); v MSA 27.3178 (1969); People Chap v App 19 Mich (1972). App informa pell, 44 Mich Records and were regarding defendant’s civil commitments proper subjects upon accurate
A valid sentence must be based assignment. judge, sitting Appeals by * Circuit on the Court of App 553 [May Tucker, v States US 443; United information. 92 S Ct (1972); People Ed 2d 592 589; 30 L v (1971); People 244, 249 Malkowski, 385 Mich v (1972). Zachery 683, 692 Davis, 41 Mich been held to have be inaccu- Presentence referred to conviction which where rate constitutionally infirm, was later found supra; Tucker, a trial court States v United charges pending against referred to and a defendant passing sentence, Davis, v (1973); Dorsey, supra; offenses were other proof by that defendant had the defendant offenses, Davis, in fact committed supra; Hildabridle, 45 Mich (1973): pending present there were no case
In the disposed charges of and no had been —all constitutionally infirm found to convictions were considered. case, record dis-
Where, instant as in the request or his counsel the defendant closes no of the trial court made or could have been a denial is no con- and there corrected misinformation
tention inaccurate, ground persuasive is no there prejudicial to claim a Accuracy information supra; Tucker, port United States is the test. Zachery supra; People Malkowski, supra. denial of criminal Davis, involvement, there is no Where *4 presentence
as contained port, inaccu- is the no contention that infirmity, proof of rate or unreliable and consid- the eration is sentencing judge. erred court the tried asserts that Defendant 557 Burns, by juvenile when it considered defendant’s record in impose on determining proper a him. a not have unanimous Our Court does view on Coleman, People v Mich App this issue. (1969), for the rule that the trial authority court juvenile in may review defendant’s record deter- imposed; mining a sentence that considering juvenile in record of a court de- proper in fendant not in 27.3178(598.23). of MCLA violation Through April panels of 1972 various of this Court Coleman controlling precedent. followed as There- McFarlin, after Mich (1972), Court panel of this declined to follow Coleman ruling that it constituted reversible error juvenile for a to consider judge defendant’s record in sentence. Pence, (1972),
In Justice O’Hara opinion, the writer con- writer, in by declined to follow Mc- curred Farlin holding and adhered to the Coleman, supra, for the reasons therein stated. supra,
Believing that Pence, supra, properly set forth the rule to be on this we con- followed issue that no error trial clude there was record of defendant determining a proper sentence.
Affirmed.
Churchill, J., concurred. (dissenting). T. M. the reasons For McFarlin, delineated (1972), my opinion it not be used in
Therefore, I vote to reverse and remand resentencing.