448 N.W.2d 794 | Mich. Ct. App. | 1989
PEOPLE
v.
SMITH
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Richard Thompson, Prosecuting Attorney, Robert C. Williams, Chief, *224 Appellate Division, and Margaret G. Horenstein, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Jennifer A. Pilette), for defendant on appeal.
Before: MICHAEL J. KELLY, P.J., and SAWYER and CAVANAGH, JJ.
MICHAEL J. KELLY, P.J.
Defendant pled guilty to charges of breaking and entering, MCL 750.110; MSA 28.305, and being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. Defendant was sentenced as an habitual offender to six to thirty years imprisonment. Defendant appeals from his sentence as of right. We affirm the convictions, vacate his sentence and remand for resentencing.
Defendant argues that he is entitled to resentencing because the presentence information report (PSIR) contained references to defendant's juvenile criminal record which had automatically been expunged pursuant to former MCR 5.913, now MCR 5.925(E). We agree.
Panels of this Court have considered this issue before, with different conclusions. In People v Price, 172 Mich App 396, 399-400; 431 NW2d 524 (1988), one panel found that a juvenile record automatically expunged pursuant to MCR 5.913 could not be considered by the trial court at sentencing. In People v Jones, 173 Mich App 341, 343; 433 NW2d 829 (1988), another panel concluded that an expunged juvenile record could be considered at sentencing and included in the PSIR.
We find that Price presents the better-reasoned approach to this question. MCR 5.913 provides for the automatic expunction of juvenile convictions. This expunction is delusive and purposeless if law *225 enforcement agencies may continue to use supposedly expunged records against a defendant to his prejudice. Following the Jones approach effectively subverts MCR 5.913.
Due to the reference to defendant's expunged juvenile criminal record, defendant's sentence must be vacated and this case remanded for resentencing. We order that references to defendant's juvenile record be stricken from the PSIR and not otherwise considered in determining defendant's sentence.
Since we are remanding this case for resentencing, it is not necessary to consider defendant's remaining issues on appeal.
Remanded for resentencing consistent with this opinion.
CAVANAGH, J., concurred.
SAWYER, J. (dissenting).
I respectfully dissent.
Unlike the majority, I believe that People v Jones, 173 Mich App 341; 433 NW2d 829 (1988), represents the better-reasoned analysis.
I would affirm.