PEOPLE
v.
NEWSON
Docket No. 123676.
Michigan Court of Appeals.
Decided February 19, 1991, at 9:30 A.M.Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by P.E. Bennett), for the defendant on appeal.
Before: SHEPHERD, P.J., and GILLIS and CAVANAGH, JJ.
AFTER REMAND
CAVANAGH, J.
Following a bench trial, defendant was convicted of extortion, MCL 750.213; MSA 28.410, and of being a third-time felony offender, MCL 769.11; MSA 28.1083. He was sentenced to from twenty-six years and eight months to forty years in prison. He appealed as of right, and this Court reversed his habitual offender conviction because he had not waived his right to a jury trial on that charge. People v Newson, 173 Mich. App. 160; 433 NW2d 386 (1988). This Court further held that he was improperly charged as a third-time felony offender, given our Supreme Court's decision in People v Stoudemire, 429 Mich. 262; 414 NW2d 693 (1987).
Following a jury trial on the new charge of being a second-time felony offender, MCL 769.10; MSA 28.1082, defendant was convicted and subsequently *449 sentenced to from twenty to thirty years in prison. In this appeal, brought as of right, defendant claims that his sentence should shock our conscience. He also contends that the sentencing court failed to adequately articulate the reasons for the sentence imposed, improperly considered his expunged juvenile record, and failed to strike from the presentence report information that was disregarded. We agree in part and remand this case to the trial court.
With regard to defendant's first two claims, after reviewing the record, we find defendant's sentence proportionate to the seriousness of the circumstances surrounding the offense and the offender. People v Milbourn, 435 Mich. 630, 636; 461 NW2d 1 (1990). We also find that the sentencing court did state sufficient reasons for the sentence imposed. People v Coles, 417 Mich. 523; 339 NW2d 440 (1983).
Regarding defendant's next claim, although this Court is divided with respect to whether resentencing is required when the presentence information report contains references to a defendant's expunged juvenile criminal record, compare People v Smith, 181 Mich. App. 223; 448 NW2d 794 (1989), lv gtd 434 Mich. 901 (1990), and People v Price, 172 Mich. App. 396; 431 NW2d 524 (1988), with People v Jones, 173 Mich. App. 341; 433 NW2d 829 (1988), we agree with the reasoning of Smith that expunction would be purposeless if law enforcement agencies could continue to use the expunged records to the defendant's prejudice. We are also sympathetic to the concern raised in In re Faketty, 121 Mich. App. 266, 273; 328 NW2d 551 (1982) (BRENNAN, J., dissenting), that an individual's juvenile record in the possession of the Department of Corrections becomes a factor in the department's decision making.
*450 However, in this case, in order to entitle the defendant to resentencing, the record must show that the sentence defendant received was premised, even in part, on his expunged criminal record. See People v Bentley, 434 Mich. 881; 452 NW2d 207 (1990), and People v Brown, 186 Mich. App. 350, 359; 463 NW2d 491 (1990). Because the record is unclear on this point, we remand this case for a hearing to determine whether the references in the presentence information report to the defendant's juvenile criminal record influenced the sentencing decision. If it is determined at this hearing that defendant's sentence was premised, even in part, on his expunged juvenile record, the sentence is to be vacated and the trial court is ordered to resentence the defendant. If it is determined that defendant's juvenile record played no part in the sentencing decision, his sentence is affirmed. Furthermore, we order the trial court to strike the references to defendant's juvenile record from the presentence information report. MCL 771.14(5); MSA 28.1144(5).
With regard to defendant's final claim, we must agree that when the sentencing court disregards information challenged as inaccurate in the presentence report, the disregarded information must be stricken from the presentence report. People v Swartz, 171 Mich. App. 364, 379-381; 429 NW2d 905 (1988).
Remanded for further proceedings consistent with this opinion and for the entry of an amended presentence information report. We retain no further jurisdiction.
SHEPHERD, P.J., concurred.
GILLIS, J. (concurring in part and dissenting in part).
While I agree with the majority's resolution *451 of the remaining issues, I dissent because I agree with the holding in People v Jones, 173 Mich. App. 341; 433 NW2d 829 (1988). Hence, I would affirm defendant's conviction and sentence, but would remand so that the circuit court could strike from the presentence report the information it disregarded.