People v. Leary
481 N.W.2d 757
Mich. Ct. App.
1992
Check Treatment

*1 v LEARY PEOPLE 5,1991, Lansing. September Docket No. 126467. Submitted at Decided 21, 1992, January appeal sought. 9:10 a.m. at Leave to Court, Leary pleaded guilty Andrew J. in the Genesee Circuit Fullerton, J., breaking entering Judith A. of and and was years’ imprisonment. appealed, sentenced to three to ten He alleging juvenile the court considered his delinquency adjudications, without coun- which were obtained sel, imposing when the sentence and that the sentence was disproportionate. Appeals The Court of held: sentencing 1. A circuit court must not at a consider defen- juvenile delinquency adjudications dant’s obtained either with- out the benefit of counsel or a valid waiver of counsel. presented 2. The defendant facie case that juvenile adjudications in were obtained violation of his counsel and that the trial court enhanced the defendant’s sentence on the basis of those The case must be pursuant resentencing hearing remanded for a United States 404 US 443 sentence, 3. The defendant’s minimum which was three times highest sentencing guide- sentence recommended lines, Milbourn, disproportionate was under principle proportionality. and of violated Remanded for C.J., concurring part dissenting part, in in stated this matter should be remanded for sentences, imposing sentencing under Milbourn and adjudica- precluded considering juvenile courts are not from tions obtained without the benefit counsel. Adjudications — — — 1. Criminal Law Sentences Juveniles Right— Delinquency to Counsel. sentencing may A not enhance a defendant’s sentence on References 2d, Subsequent Am Jur Habitual Criminals and Offenders §§ 38, Delinquent Dependent Juvenile Courts and 56. Children §§ juvenile Consideration of accused’s court record in committed as adult. 64 ALR3d 1291. offense op the Court juvenile adjudications delinquency the basis of either obtained without the benefit of counsel or a valid waiver of counsel. — 2. Criminal Without Law Sentences Convictions Obtained Counsel. *2 A defendant who in a asserts motion for that the sentencing improperly adjudica- court considered convictions or tions obtained without the benefit of counsel must include proof'of representation; prosecutor facie the lack of the proofs then must the or refute establish record evidence that validly right counsel; prose- the defendant waived the if the cutor not does do so within one month of the defendant’s proofs, resentencing hearing motion and the court must order pursuant Tucker, (1972); to United v States 404 US Appeals hearing Court of will not remand for a Tucker where the trial court denied the defendant’s motion unless totality it first concludes from the of the circumstances might defendant’s sentence have lower had the trial court been prior not considered the convictions or Kelley, Attorney Gay General, Frank J. Secor Hardy, General, Weiss, E. Solicitor Robert Prose- cuting Attorney, Kuebler, Chief, and Donald A. Appellate people. Division, for the Yantus), Appellate (by

State Defender Anne appeal. the defendant on Shepherd C.J., Before: and Mari- lyn Kelly, JJ. Marilyn Leary, Defendant, J. Kelly, Andrew pled guilty charge breaking entering. to the exchange, prose- 750.110; MCL cutor malicious destruction of MSA 28.305. In agreed charges against not to file him for property. 750.377a; MCL 28.609(1). Although sentencing guide- MSA prison lines’ recommendation was a minimum sen- months, tence of zero to twelve the trial year sentenced defendant to a three to ten term. appeal, argues impos- On when ing judge improperly sentence, considered v op the Court juvenile delinquency adjudications, his which were obtained without counsel. He also asserts that the disproportionate. agree was sentence mand for We and re- sentencing judge may The not consider a defen- prior felony, dant’s convictions obtained without the and without a valid misdemeanor or ordinance of counsel

benefit waiver to counsel. 589; United States v 404 US (1972); People Moore, 30 L Ed 2d 592 391 Mich (1974); People Miller, NW2d App 466, 469; There is split among panels a the of this Court over whether may enhance a defendant’s juvenile adjudica- sentence based on counselless Compare People App tions. 754, 756-759; 426 NW2d 801 v 442 NW2d 667 Himmelein, *3 (1990), lv den 434 Mich 903 cert den US (1991). —; 985; 112 L 1070 Ed 2d sentencing, judge We hold at the must not juvenile delinquency adjudi- consider a defendant’s cations obtained without either the benefit coun- sel or a valid waiver of counsel. 756-759. precluding The rationale for consideration of felony counselless adult and misdemeanor convic- they tions to enhance a sentence is that are "not sufficiently support reliable to the severe sanction imprisonment.” Illinois, 222, Baldasar v 446 US (1980) (citing L S Ct 64 Ed 2d 169 Argersinger Hamlin, 25, 31-36; US S Ct [1972]). 2006; 32 L Ed 2d 530 We believe that applies same rationale the use of counselless juvenile adjudications. We note that our resolution previously existing of the conflict on this issue is consistent with decisions of the United States Appeals. e.g., See, States, Rizzo v United Court of (CA 1987); 1271, 7, United States v 821 F2d Opinion of the Court (CA 1984); Slipka, 1064, 8, 735 F2d Del Piano (CA 1978), 3, States, v United 575 F2d 1066 cert den 442 US 944 a asserts in a motion for resen-

When defendant tencing improperly con- adjudications, sidered uncounselled convictions or proof prima he include facie that he was not must obliga- represented. Moore, 440-441. It is then proofs prosecutor tion of the to refute the or to validly establish record evidence that defendant prosecutor right waived his to counsel. If the does not do so one month of defendant’s motion within proofs, the trial court must order a resentenc- ing hearing pursuant to United States v supra. Moore, 441.

Where the trial court denies defen- resentencing, dant’s motion for sarily we will not neces- hearing appeal. remand for a Tucker on We totality must first conclude from the stances that defendant’s of the circum- might have been sentence prior lower had un- not considered the adjudications. Ristich, counselled convictions or 756. presented case,

In the instant juvenile adjudications facie case were counsel; obtained in violation of his presentence investigation report showed that de- represented during fendant was not counsel adjudications. Additionally, the record reveals that the trial court enhanced defendant’s sentence based on his counselless Since the prosecutor transcripts adju- did not furnish of the court, dications the trial the case is remanded *4 resentencing hearing. for a Tucker persuaded by argument We are also defendant’s disproportion- that the trial court’s sentence was People Milbourn, ate under v 461 (1990). Supreme Milbourn, 1 In NW2d our Court by Danhof, C.J. sentencing guidelines held that are the best proportionality. Id., A barometer 656. trial court depart guidelines’ not from the should recommen- are dation unless there circumstances about guidelines or that offense quately offender do not ade- Id., reflect. 659-660. case,

In the instant trial court sentenced prison defendant to a minimum term which is highest three times the sentence recommended guidelines. rationalizing departure the the In her from

guidelines, stated that defendant had juvenile history. a substantial above, For the discussed the court reasons erred considering juvenile during in defendant’s record sentencing. Moreover, in cases where represented by either waived counsel or was coun- during prior juvenile adjudications, adju- sel such guidelines’ dications are into factored recom- Michigan Sentencing mendation. See (2d ed), Guidelines pp4, Prior Record Variables 3 32-33. and circumstances, find Under these we the sen- imposed by prin- tence the trial court violated ciple proportionality.

Remanded J., concurred.

Shepherd, (concurring part dissenting C.J. in part). agree majority’s I in with the determination this matter be remanded for People Milbourn, under Mich NW2d disagree majority’s

However, I with the conclu- imposing sentences, sion courts precluded considering juvenile adjudica- are from counsel, I tions obtained without benefit of Covington, would hold otherwise. 652, 654-655; *5 App 463 192 Mich by Danhof, C.J. (1986), 425 Mich 853 lv den remanded (1986), gtd reconsideration and remanded (1988); 431 Mich 859 (1988) 426 NW2d 801 App Mich (concurrence Danhof, C.J.); People v Himme lein, (1989), 365, 381; 442 (1990), 434 Mich 903 reh den lv den 985; 112 L Ed —; cert den US 2d 1070