People v. Alexander , 207 Mich. App. 227 ( 1994 )

207 Mich. App. 227 (1994)

PEOPLE
v.
ALEXANDER

Docket No. 170041.

Michigan Court of Appeals.

Submitted September 15, 1994, at Lansing. Decided October 4, 1994, at 9:20 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief, Appeals, Research, and Training, and Dale A. DeGarmo, Assistant Prosecuting Attorney, for the people.

Roger A. Lange, for the defendant.

Before: WEAVER, P.J., and CAVANAGH and C.C. SCHMUCKER,^[*] JJ.

AFTER REMAND

PER CURIAM.

Pursuant to a plea agreement, defendant pleaded guilty of malicious destruction of police property, MCL 750.377b; MSA 28.609(2), and was sentenced to two to four years' imprisonment. Following remand for resentencing, unpublished memorandum opinion of the Court of Appeals, decided September 3, 1993 (Docket No. 147694), defendant was resentenced to the same term, to run consecutively to a term that had been imposed in another case. He now appeals as of right from the judgment of sentence, and we remand.

Defendant first challenges the imposition of a consecutive sentence.

At the time of this offense, MCL 768.7b; MSA 28.1030(2) provided for mandatory consecutive sentencing where a person charged with a felony committed a subsequent felony. People v Reynolds, 181 Mich. App. 185, 188-189; 448 NW2d 774 (1989). Defendant committed the felony of breaking and entering after he had been charged with the instant offense. Accordingly, the court was required to impose a consecutive sentence.

Defendant next asserts that he should have received credit against his sentence of 708 days for time already served. We disagree. Any credit to which defendant was entitled was first to be applied against his first sentence, i.e., the sentence for the breaking and entering. People v Cantu, 117 Mich. App. 399, 403; 323 NW2d 719 (1982).

Defendant also challenges the scoring of the sentencing guidelines. Defendant has waived review of the scoring of Prior Record Variables 6 and 7 by failing to raise the scoring issue before the sentencing court. People v Walker, 428 Mich. 261, 266; 407 NW2d 367 (1987). However, in light of our Supreme Court's recent decision in People v Carpentier, 446 Mich. 19; 521 NW2d 195 (1994), we conclude that defendant's failure to object does not foreclose review of his claim that PRV 3 was scored improperly because the scoring involved the use of a juvenile adjudication at which defendant was not represented by counsel.^[1]

Defendant has presented prima facie proof that one of his two juvenile adjudications was obtained when defendant was without counsel, because the presentence report contains a notation to that effect. We note that the recommended minimum sentence would have been considerably lower had that one prior adjudication not been included in the scoring of the guidelines. Accordingly, we remand for a hearing at which the burden will be upon the prosecutor to establish the constitutional validity of that prior adjudication. United States v Tucker, 404 U.S. 443; 92 S. Ct. 589; 30 L. Ed. 2d 592 (1972); Carpentier, supra, p 31.

If the court should find that the prior juvenile adjudication indeed was procured in violation of defendant's right to counsel, the sentencing guidelines shall be rescored and defendant resentenced.

Our disposition of this case renders it presently unnecessary to decide whether the sentence imposed was disproportionate.

Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Carpentier appears to have implicitly overruled People v Hamm, 206 Mich. App. 270; 520 NW2d 706 (1994).