People v. Leary ( 1993 )

198 Mich. App. 282 (1993) 497 N.W.2d 922

PEOPLE
v.
LEARY

Docket No. 152133.

Michigan Court of Appeals.

Submitted May 14, 1992, at Lansing. Decided February 16, 1993, at 10:00 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

State Appellate Defender (by Anne Yantus), for the defendant on appeal.

Before: SHEPHERD, P.J., and McDONALD and MARILYN KELLY, JJ.

ON REMAND

MARILYN KELLY, J.

This case is before us on remand from the Michigan Supreme Court. 439 Mich 995 (1992). In lieu of granting leave to appeal, the Court vacated our judgment and reversed our order granting defendant's motion to strike certain transcripts. 192 Mich App 463 (1992). The Court ordered us to reconsider the case in light of the previously stricken material.

Defendant, Andrew Leary, pled guilty to a charge of breaking and entering. MCL 750.110; MSA 28.305. In exchange, the prosecutor agreed not to charge him with malicious destruction of property. MCL 750.377a; MSA 28.609(1). Although the sentencing guidelines' recommendation was a minimum prison sentence of zero to twelve months, the trial judge sentenced defendant to three to ten years.

On appeal, defendant argues that, when imposing the sentence, the judge improperly considered his juvenile delinquency adjudications, which had been obtained without counsel. He asserts also that the sentence was disproportionate. We agree and remand for resentencing.

The sentencing judge may not consider a defendant's prior felony, misdemeanor or ordinance convictions obtained without the benefit of counsel and without a valid waiver of the right to counsel. United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972); People v Moore, 391 Mich 426; 216 NW2d 770 (1974); People v Miller, 179 Mich App 466, 469; 446 NW2d 294 (1989). There is a split of opinion among panels of this Court concerning whether the sentencing court may enhance a defendant's sentence based on counselless juvenile adjudications. Compare People v Ristich, 169 Mich App 754, 756-759; 426 NW2d 801 (1988), to People v Himmelein, 177 Mich App 365, 381; 442 NW2d 667 (1989), lv den 434 Mich 903 (1990), cert den ___ US ___; 111 S Ct 985; 112 L Ed 2d 1070 (1991).

We hold that, at sentencing, the judge must not consider a defendant's juvenile delinquency adjudications obtained without either the benefit of counsel or a valid waiver of counsel. Ristich, 756-759.

The rationale for precluding consideration of counselless adult felony and misdemeanor convictions to enhance a sentence is that they are "not sufficiently reliable to support the severe sanction of imprisonment." Baldasar v Illinois, 446 US 222, 227; 100 S Ct 1585; 64 L Ed 2d 169 (1980) (citing Argersinger v Hamlin, 407 US 25, 31-36; 92 S Ct 2006; 32 L Ed 2d 530 [1972]). We find the same rationale applicable to the use of counselless juvenile adjudications. Our resolution of the conflict previously existing on this issue is consistent with decisions of the United States Court of Appeals. See, e.g., Rizzo v United States, 821 F2d 1271, 1274 (CA 7, 1987); United States v Slipka, 735 F2d 1064, 1066 (CA 8, 1984); Del Piano v United States, 575 F2d 1066 (CA 3, 1978), cert den 442 US 944 (1979).

When a defendant asserts in a motion for resentencing that the sentencing court improperly considered uncounselled convictions or adjudications, he must include prima facie proof that he was not represented. Moore, 440-441. The prosecutor then has the obligation to refute the proofs or to establish record evidence that the defendant validly waived his right to counsel. If the prosecutor does not do so within one month of defendant's motion and proofs, the trial court must order a resentencing hearing pursuant to Tucker. Moore, 441.

Where the trial court improperly denies defendant's motion for resentencing, we will not necessarily remand for a Tucker hearing on appeal. We must first conclude from the totality of the circumstances that defendant's sentence might have been lower had the judge not considered the prior uncounselled convictions or adjudications. Ristich, 756.

In this case, defendant filed a motion for resentencing and presented a prima facie case that his juvenile adjudications were obtained in violation of his right to counsel; the presentence investigation report showed that defendant had not been represented by counsel during the adjudications. Relying on Himmelein, supra, the trial judge denied defendant's motion for resentencing on the basis that uncounselled juvenile adjudications may be considered during sentencing. The prosecutor did not furnish transcripts of the juvenile adjudications to the trial court. However, he did provide them to us on appeal. We have considered the stricken transcripts pursuant to the directive of the Supreme Court.

Having reviewed the transcripts, we are convinced that defendant did not validly waive his right to counsel in two of his prior juvenile delinquency adjudications. When the proceedings took place, the court rules provided:

(A) Advice to Right to Attorney. The court shall advise the child and the parent, guardian, or custodian at the first hearing before the court that they may be represented by an attorney and that an attorney may be appointed under subrule (C).

(B) Waiver; Admissibility of Confession.

(1) A child may voluntarily and understandingly waive the right to an attorney. If the parent, guardian, or custodian is the complainant or petitioner, the guardian ad litem must concur in the waiver; if not, a parent, guardian, custodian, or guardian ad litem must concur. [MCR 5.906.]

During the November 14, 1986, preliminary hearing for breaking into and entering his parents' home, defendant waived his right to counsel. However, since his parents were the complainants, it was necessary for a guardian ad litem to concur in the waiver. MCR 5.906(B)(1). No guardian ad litem had been appointed for defendant. During the February 5, 1987, preliminary hearing for unlawfully driving away his parents' automobile, defendant did not expressly waive his right to counsel. Once again, no guardian ad litem had been appointed for him.

Defendant expressly waived his right to counsel during the April 21, 1987, preliminary hearing for larceny in a building. His parents, who were not complainants in that proceeding, concurred in the waiver. MCR 5.906(B)(1).

We conclude from review of the transcripts that defendant did not validly waive counsel during the November 14, 1986, and February 5, 1987, juvenile adjudications. It is clear from the record that the trial court enhanced defendant's sentence based on the counselless adjudications. Therefore, we remand this case for a Tucker resentencing hearing.

We are also persuaded by defendant's argument that the trial court's sentence was disproportionate under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). In Milbourn, our Supreme Court held that the sentencing guidelines are the best barometer of proportionality. Id., 656. A trial judge should not depart from the guidelines' recommendation, unless there are circumstances about the offense or offender that the guidelines do not adequately consider. Id., 659-660.

In the instant case, the trial judge sentenced defendant to a minimum prison term three times the longest recommended by the guidelines. In rationalizing her departure from the guidelines, the judge stated that defendant had a substantial juvenile history.

For the reasons discussed above, the judge erred in considering defendant's juvenile record during sentencing. Moreover, in cases where a defendant either waived counsel or was represented by counsel during prior juvenile adjudications, such adjudications are factored into the guidelines' recommendation. See Michigan Sentencing Guidelines (2d ed), Prior Record Variables 3 and 4, pp 32-33. Under these circumstances, we find that the sentence imposed by the trial judge violated the principle of proportionality.

Remanded for resentencing.

SHEPHERD, P.J., concurred.

McDONALD, J. (concurring in part and dissenting in part).

I agree with the majority's determination to remand for a resentencing hearing pursuant to United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1992), but I would defer ruling on whether the sentence was proportionate under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), until after the hearing. If the trial court chooses to resentence the defendant, the Milbourn issue may become moot.