PEOPLE
v.
PREBBLE.
Docket No. 13752.
Michigan Court of Appeals.
Decided February 23, 1973.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.
*277 Martin I. Reisig, Assistant State Appellate Defender, for defendant.
Before: HOLBROOK, P.J., and FITZGERALD and VAN VALKENBURG,[*] JJ.
VAN VALKENBURG, J.
Defendant was charged with breaking and entering with intent to commit a larceny, MCLA 750.110; MSA 28.305. As a result of certain plea bargaining, a second count of attempted breaking and entering with intent to commit a larceny, MCLA 750.92; MSA 28.287, was added. Defendant pled guilty to the second count. At sentencing, the trial judge indicated that in light of defendant's "bad juvenile record" a prison sentence was warranted; and, thereafter, sentenced defendant to a prison term of from 2-1/2 to 5 years. After appellate counsel was appointed, a motion to vacate the sentence, on account of the consideration of defendant's juvenile record, was filed. The motion was denied by the trial judge. This appeal of right followed.
Defendant raises two issues on appeal; the first of which relates to whether defendant understandingly waived his constitutional right at the time of giving his plea. It will suffice to say that this issue has been fully considered and was found to be lacking in merit.
The central issue of this case involves a question which brought about disagreement among the judges of this Court; that being: Whether the trial judge, in fixing sentence, can consider the defendant's juvenile record.
The source of the difficulty, which led to the disagreement among the judges, lies in the interpretation of the legislative intent as it relates to *278 the use of "evidence" as set forth in MCLA 712A.23; MSA 27.3178(598.23). The issue was squarely presented in People v Coleman, 19 Mich. App. 250, 256 (1969), where this Court said:
"Nor does § 23 preclude examination of juvenile records for the purpose of sentencing. The express terms of the statutory prohibition bar only the use of prior juvenile dispositions as `evidence'. Read in the light of its generally accepted meaning, `evidence' connotes testimony and matters actually presented at trial. The post-conviction examination of juvenile records in order to impose a fair and just sentence is not a use of such records as `evidence'. Cf. Commonwealth v Myers (1958), 393 Pa 224 (144 A2d 367); State v Jones (1966), 91 NJ Super 67 (219 A2d 193).
"Affirmed.
"All concurred."
This conclusion has been followed in 13 subsequent opinions including People v Pence, 42 Mich. App. 215, 217 (1972), where a majority of the panel said:
"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."
In People v McFarlin, 41 Mich. App. 116, 126 (1972), an opposite conclusion was reached as to the meaning of the term "evidence" as used in the statute. The McFarlin Court held:
"The noncriminal nature of the juvenile court proceeding in Michigan would be subverted if a juvenile's record could somehow find its way into a criminal trial even if it be solely for purposes of determining sentencing. The Michigan Legislature recognized this when *279 they totally and unequivocally excluded the use of a juvenile's record at a criminal proceeding `for any purpose whatever'. MCLA 712A.23; MSA 27.3178(598.23). The trial court was, therefore, in error when it considered defendant's prior juvenile record in aggravation of sentence."
At the time of the writing of this opinion the McFarlin position has been followed in five subsequent opinions.
Inasmuch as leave to appeal was granted by the Supreme Court in McFarlin and certain of the McFarlin progeny, the resolution of the disagreement among the judges of this Court will have to await the decision of that Court. In the meantime, it appears that a majority of the judges of this Court who have confronted this issue since McFarlin have followed the dictates thereof. Since Judge FITZGERALD and I have followed McFarlin on prior occasions, we feel constrained to do likewise until the Supreme Court has resolved the issue. We therefore remand with the same instructions as set forth in People v McIntosh, 42 Mich. App. 640, 641 (1972), that:
"Because the trial court is at this point aware of defendant's juvenile record and we would have no way of knowing if the resentencing process would be affected by this knowledge, we direct that a new presentence record which excludes reference to defendant's juvenile record be obtained and that defendant be resentenced by a judge other than the sentencing judge herein."
In all fairness to the trial judge, we would note that the sentencing, motion for vacation of sentence, and the denial of that motion by the trial court predated the McFarlin opinion.
The conviction is affirmed, but the cause is *280 remanded for resentencing in accordance with this opinion.
FITZGERALD, J., concurred.
HOLBROOK, P.J. (for affirmance).
This appeal is controlled either by People v McFarlin, 41 Mich. App. 116 (1972), or People v Coleman, 19 Mich. App. 250 (1969).
The defendant pled guilty to attempted breaking and entering with intent to commit larceny and was sentenced to serve 2-1/2 to 5 years. At sentencing, the court took into consideration the defendant's juvenile record.
Thereafter, the defendant made a motion to vacate the sentence claiming that such juvenile records could not under the statute be legally considered in sentencing the defendant. MCLA 712A.23; MSA 27.3178(598.23) states:
"A disposition of any child under this chapter, or any evidence given in such case, shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this chapter." (Emphasis supplied.)
This motion was considered by the trial court in January of 1972 which was subsequent to People v Coleman, supra, and prior to the release of People v McFarlin, supra, in May of 1972. It is unknown how the trial judge would have ruled had People v McFarlin been available before the trial court considered the motion.
It is this writer's opinion that People v Coleman, supra, is the correct rule to follow in determining the single question before this Court in the instant *281 case. In People v Pence, 42 Mich. App. 215 (1972), Justice O'HARA and this writer declined to follow McFarlin and adhered to People v Coleman, supra, for the reasons therein stated.
I would affirm.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.