People v. Cross , 186 Mich. App. 216 ( 1990 )

186 Mich. App. 216 (1990) 463 N.W.2d 229

PEOPLE
v.
CROSS

Docket No. 124383.

Michigan Court of Appeals.

Decided November 6, 1990, at 9:10 A.M.

Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Helen V. Brinkman, Assistant Prosecuting Attorney, for the people.

Jeffrey P. Kirchhoff, for the defendant on appeal.

Before: WEAVER, P.J., and SAWYER and NEFF, JJ.

PER CURIAM.

Defendant pled guilty in the Kent Circuit Court of felonious assault, MCL 750.82; MSA 28.277, and of being a second-felony offender, MCL 769.10; MSA 28.1082. After being sentenced to four to six years, defendant filed this appeal as of right raising two issues. We remand for resentencing.

I

Defendant first claims that he is entitled to have stricken from his presentence report incidents which occurred while he was a juvenile but which did not result in criminal charges or convictions. At sentencing, defendant, through counsel, objected to inclusion in the presentence report of information concerning three separate contacts with the criminal justice system which occurred seventeen and eighteen years prior to the current offense. None of the contacts resulted in charges being filed against defendant.

The trial judge, in denying the objections, explained that he relied on MCR 6.425 and that the information concerning the juvenile incidents provided a "brief social history of the defendant" which was of assistance to him in the sentencing procedure. The trial judge went on to indicate that the matters in question were not sufficiently weighty to be determinative of the sentence in this case.

We find that the trial judge was well within permissible bounds in refusing to strike the information concerning defendant's juvenile contacts. MCR 6.425(A)(4) provides that a presentence report, depending on the circumstances, must include a "brief social history of the defendant." MCR 6.425(A)(12) provides that a presentence report may include any information that may be of assistance to the court in sentencing. Clearly, the trial judge in this case found the information in question to be of assistance to him in sentencing, specifically mentioning that the information in question fell within MCR 6.425(A)(4), as he viewed it.

In People v Gray, 125 Mich. App. 482; 336 NW2d 491 (1983), this Court held that juvenile charges which did not result in convictions could be mentioned in a presentence report. As in Gray, defendant here did not claim that any of the information was inaccurate. The trial court posed the following question during sentencing:

The Court: So that I understand, you're not saying that these things are untrue; you're just saying that they weren't convictions or juvenile adjudications, isn't that right?

The Defendant: True....

We find that the court rule and the opinion in Gray provide ample authority for the judge's exercise of discretion in this case, and we find no error.

II

Defendant raised and preserved the issue of sentence length in this appeal which was pending when People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990), was decided. Therefore, Milbourn applies to this appeal. Id., p 670.

Milbourn instructs us that a sentence on appeal is to be judged against the "principle of proportionality" created in that opinion. We conclude that the appropriate remedy in this case is to remand the matter to the trial court for resentencing in light of the opinion in Milbourn. We express no opinion whether the sentence imposed violates the principle of proportionality.

Remanded for resentencing. We do not retain jurisdiction.