People v. Pence , 42 Mich. App. 215 ( 1972 )

42 Mich. App. 215 (1972) 201 N.W.2d 275

PEOPLE
v.
PENCE.

Docket No. 12856.

Michigan Court of Appeals.

Decided July 26, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Donald A. Johnston, III, Chief Appellate Attorney, for the people.

Richard S. McMillin, Assistant State Appellate Defender, for defendant.

Before: R.B. BURNS, P.J., and HOLBROOK and O'HARA,^[*] JJ.

O'HARA, J. (for affirmance).

As is suggested in Judge BURNS' dissent, the only issue of merit before us on appeal is the use by the trial judge of the defendant's juvenile record.

Judge HOLBROOK and I decline to follow cited McFarlin,^[1] and adhere to the holding in People v Coleman, 19 Mich. App. 250 (1969) for the following reasons.

First, we think McFarlin misinterprets the involved statute. The record of juvenile proceedings is not "evidence against such child". The adversary proceeding is over at the time of imposition of sentence and "myopically", "penumbrally" or otherwise, that record is simply not "evidence" and, more importantly, it is not necessarily to be used "against such child".

This brings us to our second reason. The regrettable logical error in McFarlin is the totally unsupported assumption that the juvenile record will necessarily be used by the sentencing judge against the defendant. We can conceive of many instances in which it might be his saving grace, and used to his benefit.

It is, in our view, wrong to deny the sentencing judge a dependable record of the past doings of a defendant about to be sentenced. Much better this than an investigation by a probation officer, the conclusions therefrom which are incontestably available to the judge. I would much rather leave to the sound discretion of the judge who has presided over the trial what significance, if any, to ascribe to the juvenile record.

Trial judges, trained and experienced, are admirably suited to distinguish between childish prank-like offenses and other minor infractions, and a record of serious violations of a socially dangerous character.

To us, the Legislature, in passing the statute, intended to protect the juvenile from prejudicial evidence against him during trial. It did not intend to insulate the sentencing judge from information which would better enable him to impose a just sentence.

We affirm the judgment of conviction and the sentence.

HOLBROOK, J., concurred.

R.B. BURNS, P.J. (dissenting).

Defendant pled guilty to entering without breaking, MCLA 750.111; MSA 28.306, and was sentenced to 1-1/2 to 5 years in prison. He appeals.

I would follow the reasoning of People v McFarlin, 41 Mich. App. 116 (1972), reversing the case and remanding for resentencing.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] People v McFarlin, 41 Mich. App. 116 (1972).