Summary
In People v Jones, 173 Mich. App. 341, 343; 433 N.W.2d 829 (1988), another panel concluded that an expunged juvenile record could be considered at sentencing and included in the PSIR.
Summary of this case from People v. SmithOpinion
Docket No. 103693.
Decided September 27, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph S. Filip, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.
State Appellate Defender (by Jennifer A. Pilette), for defendant on appeal.
Defendant pled guilty to possession by an inmate of a controlled substance, MCL 800.281(4); MSA 28.1621(4). In exchange for defendant's plea, the prosecutor agreed to dismiss a supplemental information. Defendant was sentenced on October 23, 1986, to a prison term of three to five years. Defendant's motion for resentencing was denied by the trial court. Defendant appeals his sentence as of right. We affirm.
Defendant claims on appeal, as in his postsentence motion, that resentencing is required because his juvenile record was erroneously included in the presentence information report and considered by the sentencing judge. Defendant's juvenile record includes ten adjudications for theft offenses. Defendant argues that his juvenile record was expunged at the time of sentencing and could not be considered. At the time of sentencing, MCR 5.913 provided for the expungement of juvenile court records when the offender reached age twenty-seven. At the time he was sentenced, defendant was thirty-one years old. (MCR 5.913 was replaced by MCR 5.925, effective January 1, 1988.)
We hold that defendant's juvenile record was properly included in the presentence report. Modern sentencing policy attempts to tailor the sentence to the particular offender and the circumstances of the case. People v McFarlin, 389 Mich. 557, 574; 208 N.W.2d 504 (1973). In McFarlin, our Supreme Court held that a defendant's juvenile history should be included in the presentence report and may be considered by the judge in sentencing an adult offender. McFarlin, supra, p 575. We agree with the Court in People v Baker, 120 Mich. App. 89, 99; 327 N.W.2d 403 (1982), that complete information is necessary to set an individualized sentence and that rehabilitative goals would not be served by preventing a sentencing judge from considering information about a defendant's juvenile criminal history.
Further, MCR 5.913 provided for mandatory expungement only of the juvenile's court's own records. Defendant had not obtained an order expunging his juvenile records from the files of law enforcement agencies. Those records were, therefore, legally available from other sources for inclusion in the presentence report. In re Faketty, 121 Mich. App. 266, 271-272; 328 N.W.2d 551 (1982).
Defendant also claims on appeal, as in his postsentence motion, that his presentence report inaccurately reported his juvenile record. In his opinion denying defendant's motion, the sentencing judge considered defendant's claims of inaccuracies. The judge concluded that exclusion of defendant's juvenile record from the presentence report would not have affected the sentence imposed. The juvenile offenses concerned property offenses while defendant had four prior felony convictions including armed robbery and possession of a firearm in the commission of a felony. The judge reviewed defendant's juvenile record in response to defendant's assertion that this was his first drug offense. We are convinced that defendant's sentence would not have been different had his juvenile record not been included in the presentence report. We find no ground for resentencing.
Affirmed.