
    PEOPLE v CASANAS
    Docket No. 57371.
    Submitted June 30, 1982, at Lansing.
    Decided October 19, 1982.
    Jewel R. Casanas was convicted, on her plea of guilty, of larceny over $100, Saginaw Circuit Court, Gary R. McDonald, J. At the time of sentencing, the defendant denied three of the alleged prior convictions listed in the presentence report and claimed that she was not represented by counsel for some other convictions listed in the report. The trial judge did not reply to the defendant’s assertions. The defendant appeals. Held:
    
    The case should be reversed and remanded for resentencing before a different judge. When a defendant asserts errors such as the defendant asserted here, the trial judge should (1) hold an evidentiary hearing to determine whether or not the presentence report is inaccurate, or (2) accept the defendant’s unsworn statement that the information is false, or (3) ignore the alleged misinformation in determining a sentence.
    Reversed and remanded with instructions.
    D. F. Walsh, J., dissented. He believed that the trial judge considered only those convictions which were not denied by the defendant at the time of sentencing in determining the sentence. Because the defendant failed to follow the procedure mandated by the Michigan Supreme Court in People v Moore, 391 Mich 426; 216 NW2d 770 (1974), remand for an evidentiary hearing to determine whether the defendant was represented by counsel for the convictions for which she asserted that she did not have counsel is not required. He would affirm.
    Opinion op the Court
    1. Criminal Law — Sentencing — Presentence Reports.
    A trial judge, when sentencing a defendant who denies the validity of certain information contained in a presentence report, should (1) hold an evidentiary hearing to determine whether or not the presentence report is inaccurate, or (2) accept the defendant’s unsworn statement that the information is false, or (3) ignore the alleged misinformation in determining the sentence.
    
      References for Points in Headnotes
    
       21 Am Jur 2d, Criminal Law §§ 527, 528, 596.
    
       21A Am Jur 2d, Criminal Law § 967 et seq.
    
    Accused’s right to counsel under the Federal Constitution — Supreme Court cases. 2 L Ed 2d 1644; 9 L Ed 2d 1260; 18 L Ed 2d 1420.
    
      Dissent by D. F. Walsh, J.
    2. Criminal Law — Sentencing — Prior Convictions — Validity of Prior Convictions.
    
      A defendant, to invoke a hearing to determine if the sentence might have been different if the sentencing judge had known that defendant’s previous convictions had been unconstitutionally obtained because the defendant had been unrepresented by counsel and that he had been neither advised of his right to legal assistance nor had he intelligently and understandingly waived his right to the assistance of counsel, must (1) present prima facie proof that he was not represented, such as a docket entry showing the absence of counsel or a transcript evidencing the same, or (2) present evidence that he has requested such records from the sentencing court and it has failed to reply or has refused to furnish copies of records within a reasonable period of time.
    
    
      Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Kay F. Pearson, Assistant Prosecuting Attorney, for the people.
    State Appellate Defender (by Richard B. Ginsberg), for defendant on appeal.
    Before: R. B. Burns, P.J., and D. F. Walsh and P. J. Marutiak, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   Per Curiam.

Defendant pled guilty to larceny over $100, MCL 750.356; MSA 28.588. She was sentenced to serve 1-1/2 to 5 years in prison.

At the time of sentencing, she denied three convictions listed on the presentence report. It is also claimed that she was not represented by counsel for some other convictions.

The trial judge did not reply to such assertions.

When a defendant asserts such errors, the trial judge has three alternatives. First, he can hold an evidentiary hearing to determine whether or not the presentence report is inaccurate. Second, he can accept the defendant’s unsworn statement. that the information is false. Third, he can ignore the alleged misinformation in determining the sentence. People v Perez, 103 Mich App 636; 303 NW2d 49 (1981).

This case is reversed and remanded for resentencing before a different judge.

D. F. Walsh, J.

(dissenting). I must respectfully dissent. My review of the record persuades me that the trial judge considered only those convictions which were not denied by the defendant at the time of sentencing. Moreover, since the defendant failed to follow the procedure mandated by the Supreme Court in People v Moore, 391 Mich 426, 440; 216 NW2d 770 (1974), remand for a Tucker hearing is not required.1 would affirm. 
      
      
        United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972).
     