People v. Smith

• Decision Date: 28 May 1991
• Docket Number: No. 2,No. 87874,87874,2
• Citation: 470 N.W.2d 70,437 Mich. 293
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ricky Franklin SMITH, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 70

470 N.W.2d 70

437 Mich. 293

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ricky Franklin SMITH, Defendant-Appellee.

No. 87874.

Calendar No. 2.

Supreme Court of Michigan.

Argued Nov. 8, 1990.

Decided May 28, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Oakland County, Michael J. Modelski, Chief, Appellate Div. by Janice A. Kabodian, Asst. Pros. Atty., Pontiac, Mich., for plaintiff-appellant.

State Appellate Defender Office by Jennifer A. Pilette, Asst. Defender, Special Unit, Pleas/Early Releases, Detroit, Mich., Irving Rosenbaum, Research Atty., for defendant-appellee.

OPINION

LEVIN, Justice.

The question presented is whether the inclusion in the presentence investigation report of the expunged juvenile record of defendant Ricky Franklin Smith requires, under MCR 5.913, now MCR 5.925(E), that he be resentenced. ¹

The Court of Appeals ruled that resentencing was required. ² We reverse.

I

Smith was convicted on his plea of guilty of breaking and entering, ³ and of being an habitual offender, fourth offense. ⁴

Smith argued in the Court of Appeals that he was entitled to be resentenced because the presentence investigation report contained references to his juvenile criminal record which had been automatically expunged pursuant to former MCR 5.913. ⁵

The Court observed that one panel of the Court of Appeals, in People v. Price, 172 Mich.App. 396, 399-400, 431 N.W.2d 524 (1988), had ruled that a juvenile record, automatically expunged pursuant to MCR 5.913, ⁶ could not be considered at sentencing, and that another panel, in People v. Jones, 173 Mich.App. 341, 343, 433 N.W.2d 829 (1988), had concluded that an expunged juvenile record could be included in the presentence investigation report and considered at sentencing.

The majority concluded that Price presented the better-reasoned approach. They added that the automatic expungement of juvenile convictions "is delusive and purposeless if law enforcement agencies may continue to use supposedly expunged records against the defendant to his prejudice. Following the Jones approach effectively subverts MCR 5.913." ⁷ The dissenting judge said that he believed that Jones represented "the better-reasoned analysis." ⁸

II

The presentence investigation report outlined Smith's previous record, which included twelve juvenile entries. ⁹ Smith's lawyer indicated that the report was accurate. The sentencing judge said that the sentence was imposed because Smith's record included seven prior felonies and three misdemeanors, and he viewed the sentence as appropriate to punish Smith, to protect society, and to deter others from committing like offenses. The judge added that the sentence would be served concurrently with another sentence Smith was then serving. ¹⁰

III

In People v. McFarlin, 389 Mich. 557, 208 N.W.2d 504 (1973), this Court held that a sentencing judge could properly consider an adult offender's juvenile offense record although the Probate Code provided that a disposition of a child by a probate court shall not be proper evidence against the child for "any purpose whatever" in any civil, criminal, or other cause except in a case against the child under the Juveniles and Juvenile Division Chapter of the Probate Code. ¹¹

When McFarlin was decided, the court rules did not provide for expungement of records. In 1978, this Court adopted JCR 13, ¹² which, as shortly thereafter amended, provided for the automatic expungement of the records of a juvenile offender if, after the seventh year following the discharge of the child from the court's jurisdiction, there has been no subsequent felony conviction. ¹³

MCR 5.913, ¹⁴ the rule in effect at the time Smith was sentenced, replaced JCR 13. ¹⁵ Shortly after the adoption of this rule, the Legislature enacted Sec. 18e of the Juveniles and Juvenile Division Chapter of the Probate Code. ¹⁶

Section 18e provides that a juvenile court judge may not set aside a conviction of a juvenile offense which if committed by an adult would be a felony for which the maximum punishment is life imprisonment, or an adjudication for a traffic offense involving the operation of a motor vehicle that is a felony or misdemeanor. Other juvenile offenses that, while serious, are not potentially life-sentence offenses (designated as "reportable" in the court rule), may be set aside by a juvenile court judge subject to the limitations of and pursuant to Sec. 18e. Such offenses would include breaking and entering.

While Sec. 18e makes it a misdemeanor knowingly to use a juvenile offense that has been set aside except as permitted in Sec. 18e(13), subsection 13(d) provides that a record of a conviction of a juvenile offense shall be made available "[f]or the court's consideration in determining the sentence to be imposed upon conviction for a subsequent offense that is punishable as a felony or by imprisonment for more than 1 year."

Section 18e, a legislative enactment, expresses the public policy of this state. This Court, following the enactment of Sec. 18e, adopted MCR 5.925(E) ¹⁷ in lieu of MCR 5.913, the rule extant when Smith was sentenced.

IV

In People v. Price, supra, 172 Mich.App. at p. 399, 431 N.W.2d 524, relied on by the Court of Appeals in the instant case, the Court, recognizing that the general rule reflected in McFarlin is that a defendant's juvenile record may be considered by a sentencing judge in imposing a sentence for an adult offense, stated that this Court had "in no uncertain terms, placed a limit on the relevance of one's past juvenile record." The Court said that "MCR 5.913 provided an automatic mechanism by which the juvenile record of a former offender was expunged at the age of twenty-seven, the age at which an individual has been an 'adult' for purposes of criminal penalty for a period of ten years." The Court continued that "[i]n our view, an unexpunged juvenile record may create a lifelong handicap because of the stigma it carries. We believe former MCR 5.913 was designed to remedy such a situation."

In People v. Jones, another panel of the Court of Appeals held that a juvenile record, automatically expunged at age twenty-seven, was properly included in a thirty-one-year-old defendant's presentence report. The Court said, relying on McFarlin, that "[m]odern sentencing policy attempts to tailor the sentence to the particular offender and the circumstances of the case." People v. Jones, supra, 173 Mich.App. at p. 343, 433 N.W.2d 829. The Court added 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." Id.

V

We conclude that the Jones panel reached the correct result and that Price should no longer be followed.

Rules calling for the "expungement" or destruction of juvenile records have been enacted or adopted in many states. Some states have enacted "sealing" statutes or have otherwise imposed restrictions that would leave juvenile records unimpaired, but would restrict their use in court proceedings. ¹⁸ Literature describing these rules indicates that their "basic purpose ... is to overcome the stigma of delinquency." ¹⁹ At the same time, however, these rules "have generally been construed as not being applicable to the use of a juvenile court record for sentencing purposes. Accordingly, almost all the courts ... have taken the position that an accused's juvenile court record may be taken into consideration by a judge in sentencing the accused for an adult offense." ²⁰

The general judicial construction of expungement statutes and rules restricting the use of a juvenile offense record indicates, by permitting the use of such offense records when sentencing a juvenile offender as an adult, that the "stigma of delinquency" with which the statutes and rules are concerned is the social or civil stigma, and economic disabilities that accompany a criminal record. ²¹

The purpose of the court rule, and of similar rules or statutes in other jurisdictions, is to prevent a juvenile record from becoming an obstacle to educational, social, or employment opportunities. ²² When, however, a juvenile offender appears in court again as an adult, his juvenile offense record may be considered in imposing sentence. The law contemplates a differentiation in sentencing between first-time offenders and recidivists, juvenile or adult.

In McFarlin, supra, 389 Mich. at pp. 574-575, 208 N.W.2d 504, this Court said:

"If--in an effort to enforce an absolute restriction on the use of juvenile records--we were to bar all waivers of the restriction and prohibit any consideration by the sentencing judge of juvenile history, the best and the worst sentencing risks might be indistinguishable. A judge hesitant to take risks, uncertain whether a young adult offender is a first offender, might sentence him to prison when, with complete information, he would place him on probation or sentence him under the Holmes [Youthful Trainee] Act. [M.C.L. Sec. 762.11; M.S.A. Sec. 28.853(11).]

"The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitative potential.... A judge needs complete information to set a proper individualized sentence. A defendant's juvenile court history may reveal a pattern of lawbreaking and his response to previous rehabilitative efforts. This, together with information concerning underlying social or family difficulties, and a host of other facts are essential to an informed sentencing decision, especially if the offender is a young adult."

In providing, in JCR 13, adopted five years after McFarlin was decided and in MCR 5.913, adopted in 1985, for the automatic expungement of a...