People v. NAMON BROWN

45 Mich. App. 400 (1973) 206 N.W.2d 542

PEOPLE
v.
NAMON BROWN.

Docket No. 14214.

Michigan Court of Appeals.

Decided March 23, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Richard A. Cooley, Jr., Assistant Prosecuting Attorney, for the people.

Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant.

Before: DANHOF, P.J., and HOLBROOK and BASHARA, JJ.

PER CURIAM.

Defendant was tried and found guilty by a jury of breaking and entering, MCLA 750.110; MSA 28.305. He was sentenced to eight to ten years in prison and appeals.

An examination of the record and briefs discloses no prejudicial error in relation to defendant's being found guilty.

Regarding his sentence, defendant contends that the trial court may have improperly considered his juvenile record in imposing sentence and that there was further error in the court's refusal to provide the presentence report to defendant's appellate counsel. On the basis of People v Pence, 42 Mich. App. 215 (1972), and People v Coleman, 19 Mich. App. 250 (1969), we decline to follow the case of People v McFarlin, 41 Mich. App. 116 (1972), which held that a criminal defendant's prior juvenile record may not be considered by the trial judge in determining his sentence.

As to the trial court's denial of appellate counsel's motion to view the presentence report, we do not find denial of this motion to be improper. We are aware of this Court's decision in People v Chappell, 44 Mich. App. 204 (1972), but decline to follow it. Defendant's trial counsel did not make a request for the presentence report. The case is, therefore, factually inapposite to People v Malkowski, 385 Mich. 244 (1971). Moreover, although the Supreme Court in Malkowski addressed itself to the question of mandatory accessibility of these reports, it failed to resolve the issue. In view of the present state of the law, we are in agreement with this Court's determination in People v Griffis, 37 Mich. App. 249, 251 (1971), that it would be inappropriate for us "to outrun the Supreme Court".

There was, however, error in defendant's sentencing. He should have been sentenced to six years and eight months minimum to ten years maximum according to People v Tanner, 387 Mich. 683 (1972), and the minimum sentence is so modified.

Affirmed except as modified herein.