PEOPLE
v.
LEARY
Docket No. 126467.
Michigan Court of Appeals.
Decided January 21, 1992, at 9:10 A.M.Frank J. Kelley, Attorney General, Gay Secor Hardy, 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: DANHOF, C.J., and SHEPHERD and MARILYN KELLY, JJ.
MARILYN KELLY, J.
Defendant, Andrew Leary, pled guilty to the charge of breaking and entering. MCL 750.110; MSA 28.305. In exchange, the prosecutor agreed not to file charges against him for 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 a three to ten year term.
On appeal, defendant argues that, when imposing the sentence, the judge improperly considered *465 his juvenile delinquency adjudications, which were obtained without counsel. He also asserts 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 among panels of this Court over 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 believe that the same rationale applies to the use of counselless juvenile adjudications. We note that 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 *466 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. It is then the obligation of the prosecutor to refute the proofs or to establish record evidence that 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 United States v Tucker, supra. 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 the instant case, defendant presented a prima facie case that the juvenile adjudications were obtained in violation of his right to counsel; the presentence investigation report showed that defendant was not represented by counsel during the adjudications. Additionally, the record reveals that the trial court enhanced defendant's sentence based on his counselless adjudications. Since the prosecutor did not furnish transcripts of the adjudications in the trial court, the case is remanded 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 *467 held that the sentencing guidelines are the best barometer of proportionality. Id., 656. A trial court should not depart from the guidelines' recommendation unless there are circumstances about the offense or offender that the guidelines do not adequately reflect. Id., 659-660.
In the instant case, the trial court sentenced defendant to a minimum prison term which is three times the highest sentence 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 court 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 court violated the principle of proportionality.
Remanded for resentencing.
SHEPHERD, J., concurred.
DANHOF, C.J. (concurring in part and dissenting in part).
I agree with the majority's determination that this matter be remanded for resentencing under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
However, I disagree with the majority's conclusion that, in imposing sentences, sentencing courts are precluded from considering juvenile adjudications obtained without benefit of counsel, and I would hold otherwise. People v Covington, 144 Mich App 652, 654-655; 376 NW2d 178 (1985), *468 remanded 425 Mich 853 (1986), lv den 426 Mich 866 (1986), reconsideration gtd and remanded for resentencing 431 Mich 859 (1988); People v Ristich, 169 Mich App 754, 760; 426 NW2d 801 (1988) (concurrence by DANHOF, C.J.); People v Himmelein, 177 Mich App 365, 381; 442 NW2d 667 (1989), lv den 434 Mich 903 (1990), reh den 435 Mich 879 (1990), cert den ___ US ___; 111 S Ct 985; 112 L Ed 2d 1070 (1991).