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181 Mich. App. 223

448 N.W.2d 794

People v. Smith

Michigan Court of Appeals

Decided November 20, 1989

Michigan Court of Appeals · decided 1989-11-20

Applies MI 750 § 750.110 · MI 769 § 769.12

Decided 1989-11-20

Michael J. Kelly, P.J.

¶1Defendant pled guilty to charges of breaking and entering, MCL 750.110; MSA 28.305, and being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. Defendant was sentenced as an habitual offender to six to thirty years imprisonment. Defendant appeals from his sentence as of right. We affirm the convictions, vacate his sentence and remand for resentencing.

¶2Defendant argues that he is entitled to resentencing because the presentence information report (psir) contained references to defendant’s juvenile criminal record which had automatically been expunged pursuant to former MCR 5.913, now MCR 5.925(E). We agree.

¶3Panels of this Court have considered this issue before, with different conclusions. In People v Price, 172 Mich App 396, 399-400; 431 NW2d 524 (1988), one panel found that a juvenile record automatically expunged pursuant to MCR 5.913 could not be considered by the trial court at sentencing. In People v Jones, 173 Mich App 341, 343; 433 NW2d 829 (1988), another panel concluded that an expunged juvenile record could be considered at sentencing and included in the psir.

¶4We find that Pricepresents the better-reasoned approach to this question. MCR 5.913 provides for the automatic expunction of juvenile convictions. This expunction is delusive and purposeless if law *225enforcement agencies may continue to use supposedly expunged records against a defendant to his prejudice. Following the Jonesapproach effectively subverts MCR 5.913.

¶5Due to the reference to defendant’s expunged juvenile criminal record, defendant’s sentence must be vacated and this case remanded for resentencing. We order that references to defendant’s juvenile record be stricken from the psir and not otherwise considered in determining defendant’s sentence.

¶6Since we are remanding this case for resentencing, it is not necessary to consider defendant’s remaining issues on appeal.

¶7Remanded for resentencing consistent with this opinion.

Cavanagh, J., concurred.
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