
    PEOPLE v LEARY (ON REMAND)
    Docket No. 152133.
    Submitted May 14, 1992, at Lansing.
    Decided February 16, 1993, at 10:00 a.m.
    Leave to appeal sought.
    Andrew J. Leary pleaded guilty in the Genesee Circuit Court, Judith A. Fullerton, J., of breaking and entering and was sentenced to three to ten years’ imprisonment. He moved for resentencing, arguing that consideration of three prior juvenile adjudications obtained without counsel was improper. The court denied the motion. The defendant appealed and additionally claimed that the sentence, which represented a departure from the minimum sentence recommended by the sentencing guidelines, was disproportionate. The Court of Appeals, Marilyn Kelly and Shepherd, JJ. (Danhof, C.J., concurring in part and dissenting in part), after granting the defendant’s motion to strike the transcripts of the juvenile adjudications that were submitted by the prosecutor, remanded for resentencing. 192 Mich App 463 (1992). The Supreme Court, in lieu of granting leave to appeal, reversed the order of the Court of Appeals that granted the motion to strike, vacated its judgment, and remanded for reconsideration in light of the transcripts that were previously stricken. 439 Mich 995 (1992).
    On remand, the Court of Appeals held:
    
    1. A sentencing court may not enhance a defendant’s sentence on the basis of juvenile adjudications unless at the adjudications the defendant had been represented by counsel or validly had waived counsel. In this case, two of the defendant’s juvenile adjudications were obtained without valid waivers of his right to counsel.
    2. Because two of the juvenile adjudications at issue in this case were obtained in violation of the right to counsel and the trial court enhanced its sentence on the basis of those adjudications, the case must be remanded for a resentencing pursuant to United States v Tucker, 404 US 443 (1972).
    
      References
    Am Jur 2d, Criminal Law § 599; Juvenile Courts and Delinquent and Dependent Children § 56.
    Relief available for violation of right to counsel at sentencing in state criminal trial. 65 ALR4th 183
    Consideration of accused’s juvenile court record in sentencing for offense committed as adult. 64 ALR3d 1291
    
      3. The sentence imposed in this case was disproportionate under People v Milbourn, 435 Mich 630 (1990), inasmuch as the trial court improperly considered prior juvenile adjudications obtained without counsel and prior juvenile adjudications obtained with counsel or with valid waivers of counsel are already factored into prior record variables of the sentencing guidelines.
    Remanded for resentencing.
    McDonald, J., concurring in part and dissenting in part, stated that the majority’s determination to remand for a hearing pursuant to Tucker is correct, but that a decision with respect to sentence proportionality should be deferred until after the hearing.
    1. Sentences — Prior Adjudications of Juvenile Delinquency — Right to Counsel.
    A sentencing court may not enhance a defendant’s sentence on the basis of prior juvenile adjudications unless at the adjudications the defendant had been represented by counsel or validly had waived counsel.
    2. Criminal Law — Sentences — Convictions Obtained Without Counsel.
    A defendant who asserts in a motion for resentencing that the sentencing court improperly considered convictions or adjudications obtained without the benefit of counsel must include prima facie proof of the lack of representation; the prosecutor then must refute the proofs or establish record evidence that the defendant validly waived the right to counsel; if the prosecutor does not do so within one month of the defendant’s motion and proofs, the court must order a resentencing hearing pursuant to United States v Tucker, 404 US 443 (1972); the Court of Appeals will not remand for a Tucker hearing where the trial court improperly denied the defendant’s motion unless it first concludes from the totality of the circumstances that the defendant’s sentence might have been less had the trial court not considered the prior convictions or adjudications.
    
      Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
    
      State Appellate Defender (by Anne Yantus), for the defendant on appeal.
   ON REMAND

Before: Shepherd, P.J., and McDonald and Marilyn Kelly, JJ.

Marilyn Kelly, J.

This case is before us on remand from the Michigan Supreme Court. 439 Mich 995 (1992). In lieu of granting leave to appeal, the Court vacated our judgment and reversed our order granting defendant’s motion to strike certain transcripts. 192 Mich App 463 (1992). The Court ordered us to reconsider the case in light of the previously stricken material.

Defendant, Andrew Leary, pled guilty to a charge of breaking and entering. MCL 750.110; MSA 28.305. In exchange, the prosecutor agreed not to charge him with malicious destruction of property. MCL 750.377a; MSA 28.609(1). Although the sentencing guidelines’ recommendation was a minimum prison sentence of zero to twelve months, the trial judge sentenced defendant to three to ten years.

On appeal, defendant argues that, when imposing the sentence, the judge improperly considered his juvenile delinquency adjudications, which had been obtained without counsel. He asserts also that the sentence was disproportionate. We agree and remand for resentencing.

The sentencing judge may not consider a defendant’s prior felony, misdemeanor or ordinance convictions obtained without the benefit of counsel and without a valid waiver of the right to counsel. United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972); People v Moore, 391 Mich 426; 216 NW2d 770 (1974); People v Miller, 179 Mich App 466, 469; 446 NW2d 294 (1989). There is a split of opinion among panels of this Court concerning whether the sentencing court may enhance a defendant’s sentence based on counselless juvenile adjudications. Compare People v Ristich, 169 Mich App 754, 756-759; 426 NW2d 801 (1988), to People v Himmelein, 177 Mich App 365, 381; 442 NW2d 667 (1989), lv den 434 Mich 903 (1990), cert den — US —; 111 S Ct 985; 112 L Ed 2d 1070 (1991).

We hold that, at sentencing, the judge must not consider a defendant’s juvenile delinquency adjudications obtained without either the benefit of counsel or a valid waiver of counsel. Ristich, 756-759.

The rationale for precluding consideration of counselless adult felony and misdemeanor convictions to enhance a sentence is that they are "not sufficiently reliable to support the severe sanction of imprisonment.” Baldasar v Illinois, 446 US 222, 227; 100 S Ct 1585; 64 L Ed 2d 169 (1980) (citing Argersinger v Hamlin, 407 US 25, 31-36; 92 S Ct 2006; 32 L Ed 2d 530 [1972]). We find the same rationale applicable to the use of counselless juvenile adjudications. Our resolution of the conflict previously existing on this issue is consistent with decisions of the United States Court of Appeals. See, e.g., Rizzo v United States, 821 F2d 1271, 1274 (CA 7, 1987); United States v Slipka, 735 F2d 1064, 1066 (CA 8, 1984); Del Piano v United States, 575 F2d 1066 (CA 3, 1978), cert den 442 US 944 (1979).

When a defendant asserts in a motion for resentencing that the sentencing court improperly considered uncounselled convictions or adjudications, he must include prima facie proof that he was not represented. Moore, 440-441. The prosecutor then has the obligation to refute the proofs or to establish record evidence that the defendant validly waived his right to counsel. If the prosecutor does not do so within one month of defendant’s motion and proofs, the trial court must order a resentencing hearing pursuant to Tucker. Moore, 441.

Where the trial court improperly denies defendant’s motion for resentencing, we will not necessarily remand for a Tucker hearing on appeal. We must first conclude from the totality of the circumstances that defendant’s sentence might have been lower had the judge not considered the prior uncounselled convictions or adjudications. Ristich, 756.

In this case, defendant filed a motion for resentencing and presented a prima facie case that his juvenile adjudications were obtained in violation of his right to counsel; the presentence investigation report showed that defendant had not been represented by counsel during the adjudications. Relying on Himmelein, supra, the trial judge denied defendant’s motion for resentencing on the basis that uncounselled juvenile adjudications may be considered during sentencing. The prosecutor did not furnish transcripts of the juvenile adjudications to the trial court. However, he did provide them to us on appeal. We have considered the stricken transcripts pursuant to the directive of the Supreme Court.

Having reviewed the transcripts, we are convinced that defendant did not validly waive his right to counsel in two of his prior juvenile delinquency adjudications. When the proceedings took place, the court rules provided:

(A) Advice to Right to Attorney. The court shall advise the child and the parent, guardian, or custodian at the first hearing before the court that they may be represented by an attorney and that an attorney may be appointed under subrule (C).
(B) Waiver; Admissibility of Confession.
(1) A child may voluntarily and understandingly waive the right to an attorney. If the parent, guardian, or custodian is the complainant or petitioner, the guardian ad litem must concur in the waiver; if not, a parent, guardian, custodian, or guardian ad litem must concur. [MCR 5.906.]

During the November 14, 1986, preliminary hearing for breaking into and entering his parents’ home, defendant waived his right to counsel. However, since his parents were the complainants, it was necessary for a guardian ad litem to concur in the waiver. MCR 5.906(B)(1). No guardian ad litem had been appointed for defendant. During the February 5, 1987, preliminary hearing for unlawfully driving away his parents’ automobile, defendant did not expressly waive his right to counsel. Once again, no guardian ad litem had been appointed for him.

Defendant expressly waived his right to counsel during the April 21, 1987, preliminary hearing for larceny in a building. His parents, who were not complainants in that proceeding, concurred in the waiver. MCR 5.906(B)(1).

We conclude from review of the transcripts that defendant did not validly waive counsel during the November 14, 1986, and February 5, 1987, juvenile adjudications. It is clear from the record that the trial court enhanced defendant’s sentence based on the counselless adjudications. Therefore, we remand this case for a Tucker resentencing hearing.

We are also persuaded by defendant’s argument that the trial court’s sentence was disproportionate under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). In Milbourn, our Supreme Court held that the sentencing guidelines are the best barometer of proportionality. Id., 656. A trial judge should not depart from the guidelines’ recommendation, unless there are circumstances about the offense or offender that the guidelines do not adequately consider. Id., 659-660.

In the instant case, the trial judge sentenced defendant to a minimum prison term three times the longest recommended by the guidelines. In rationalizing her departure from the guidelines, the judge stated that defendant had a substantial juvenile history.

For the reasons discussed above, the judge erred in considering defendant’s juvenile record during sentencing. Moreover, in cases where a defendant either waived counsel or was represented by counsel during prior juvenile adjudications, such adjudications are factored into the guidelines’ recommendation. See Michigan Sentencing Guidelines (2d ed), Prior Record Variables 3 and 4, pp 32-33. Under these circumstances, we find that the sentence imposed by the trial judge violated the principle of proportionality.

Remanded for resentencing.

Shepherd, P.J., concurred.

McDonald, J.

(concurring in part and dissenting in part). I agree with the majority’s determination to remand for a resentencing hearing pursuant to United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1992), but I would defer ruling on whether the sentence was proportionate under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), until after the hearing. If the trial court chooses to resentence the defendant, the Milbourn issue may become moot.  