People v. Antkoviak

• Decision Date: 16 November 2000
• Docket Number: Docket No. 221743.
• Citation: 242 Mich. App. 424,619 N.W.2d 18
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lawrence ANTKOVIAK, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

619 N.W.2d 18

242 Mich. App. 424

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lawrence ANTKOVIAK, Defendant-Appellee.

Docket No. 221743.

Court of Appeals of Michigan.

Submitted February 1, 2000, at Grand Rapids.

Decided September 8, 2000, at 9:00 a.m.

Released for Publication November 16, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Timothy P. MacArthur, Prosecuting Attorney, for the people.

Daniel Martin, Cheboygan, for the defendant.

Judge Richard W. May, Charlevoix, for amici curiae the 90th District Court.

Brian Mackie, President, William A. Forsyth, Kent County Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and T. Lynn Hopkins, Assistant Prosecuting Attorney, Grand Rapids, for amici curiae the Prosecuting Attorneys Association of Michigan.

Before: FITZGERALD, P.J., and SAAD and WHITBECK, JJ.

WHITBECK, J.

The district court, after a bench trial, convicted defendant Lawrence Antkoviak (hereafter Antkoviak) of the misdemeanor offense of possession of alcohol by a minor (we hereafter use the common name for this offense: minor in possession of alcohol), M.C.L. § 436.1703(1)(a); MSA 18.1175(703)(1)(a), and found him responsible for the civil infraction of refusing to perform a preliminary breath test, M.C.L. § 436.1703(5); MSA 18.1175(703)(5).¹ Antkoviak appealed his misdemeanor conviction to the circuit court asserting, as he did before the district court, that he was entitled to a jury trial for a violation of the minor in possession statute. The circuit court agreed and reversed his conviction. We granted the prosecutor's application for leave to appeal. We affirm and remand, but for reasons different from those that the circuit court enunciated.²

I. Basic Facts And Procedural History

The facts and the procedural history in this matter are simple and straightforward. In early November 1998, a Michigan State Police officer stopped Kristen Antkoviak, who is apparently Lawrence Antkoviak's sister, at 3:30 a.m. as she was driving south on M-27 in Cheboygan County. The trooper who stopped the car perceived a "moderate to strong" smell of alcohol and thought that defendant Antkoviak, a passenger in the vehicle, spoke with a minimal slur while acting "slightly aggressive." Somehow, the trooper determined that defendant Antkoviak was under twenty-one years of age. These factors, along with the trooper's experience and the way Antkoviak's eyes looked, led the trooper to conclude that Antkoviak had been consuming alcohol illegally. The trooper, who did not find any evidence of alcohol in the vehicle, asked Antkoviak to submit to sobriety tests, including a preliminary breath test. When Antkoviak claimed that he had not been drinking and refused to perform a preliminary breath test, the trooper issued an appearance ticket to him for the offense of possession of alcohol by a minor.

The district court originally scheduled Antkoviak's case for jury selection in mid-December 1998. However, during a December 14, 1998, proceeding, the district court noted, sua sponte, that a person convicted of the misdemeanor of minor in possession of alcohol is not subject to incarceration. As a result, the district court concluded that the case was inappropriate for a jury trial and scheduled the case for a bench trial despite Antkoviak's objection.

On January 13, 1999, the district court held Antkoviak's bench trial for the minor in possession of alcohol charge and the preliminary breath test refusal citation. The prosecutor offered only the arresting trooper's testimony as evidence. Antkoviak presented no testimony, did not cross-examine the trooper, and rested after noting his continued objection to the district court's ruling denying him a jury trial. The district court subsequently issued a written opinion and order in which it again rejected Antkoviak's argument that he was entitled to a jury trial because conviction of minor in possession of alcohol cannot result in incarceration as punishment. The district court also found Antkoviak guilty of the charge of minor in possession of alcohol and responsible for failing to take the preliminary breath test. Although the district court assessed fines and costs of $105 against Antkoviak for the misdemeanor conviction and $155 for the civil infraction, it stayed execution of the sentence so that Antkoviak could appeal to the circuit court. The sole issue before the circuit court was whether the district court erred in denying Antkoviak a jury trial. In ruling on the merits of that argument, the circuit court first examined the portion of Const. 1963, art. 1, § 20 that states that "[i]n every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury...." The circuit court did not examine the next phrase of that provision, which states that the impartial jury "may consist of less than 12 jurors in prosecutions for misdemeanors...." Noting that both Antkoviak and the prosecutor relied on case law involving prosecution for traffic offenses variously labeled as misdemeanors and civil infractions, the circuit court then turned to the relevant text of the statute prohibiting minor in possession of alcohol statute, M.C.L. § 436.1703(1); MSA 18.1175(703)(1):

A minor shall not purchase or attempt to purchase alcoholic liquor, consume or attempt to consume alcoholic liquor, or possess or attempt to possess alcoholic liquor, except as provided in this section. Notwithstanding section 909, a minor who violates this subsection is guilty of a misdemeanor punishable by the following fines and sanctions, and is not subject to the penalties prescribed in section 909:

(a) For the first violation a fine of not more than $100.00, and may be ordered to participate in substance abuse prevention or substance abuse treatment and rehabilitation services as defined in section 6107 of the public health code, 1978 PA 368, M.C.L. § 333.6107, and designated by the administrator of substance abuse services, and may be ordered to perform community service and to undergo substance abuse screening and assessment at his or her own expense as described in subsection (3).

The circuit court reasoned that the sanctions outlined in subsection a fell "somewhere between the civil infraction statute and traditional criminal law" because, even though the statute did not authorize incarceration, it permitted the trial court to order community service and substance abuse treatment. In concluding that subsection a "create[s] the potential for a substantial loss of liberty," the circuit court noted that (1) the Legislature could have made the offense a civil infraction, but maintained the offense as a misdemeanor, (2) conviction of a misdemeanor can have "stigma and effects" that are "substantial and long-lasting", (3) by allowing a trial court to order a defendant to engage in community service, the Legislature entrusted the courts with authority to compel a defendant's presence at "any number of various locales", and (4) the minor in possession of alcohol statute incorporates § 6107 of the Public Health Code, M.C.L. § 333.6107; MSA 14.15(6107), by reference, which in turn permits a court to order a wide range of services, including inpatient treatment. Accordingly, the circuit court concluded:

If a citizen exposed to a sentence of even one day in jail has the right to trial by jury, then it is only logical that a defendant exposed to many hours of community service, psychiatric and psychological evaluations, and residential treatment would also be entitled to this constitutional safeguard.

The circuit court therefore reversed Antkoviak's conviction and remanded the matter to the district court for a new trial.

II. Preservation Of The Issue And Standard Of Review

Antkoviak raised the issue of his right to a jury trial in the proceedings below and the district and circuit courts decided it, albeit in exactly contrary fashions. Antkoviak has therefore preserved the issue. People v. Grant, 445 Mich. 535, 546, 520 N.W.2d 123 (1994). Whether the 1963 Michigan Constitution permits a defendant to demand a jury trial for a misdemeanor charge presents a question of constitutional law that we review de novo. See People v. McRunels, 237 Mich.App. 168, 171, 603 N.W.2d 95 (1999).

III. Federal Versus State Constitutional Law: The Sixth Amendment and Const. 1963, Art. 1, § 20

Although neither the district court nor the circuit court mentioned the federal constitution directly, the analysis each court engaged in referred obliquely to the case law interpreting the Sixth Amendment, which states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." As is apparent, the text of the Sixth Amendment is similar but not identical to Const. 1963, art. 1, § 20. Most significantly, the Sixth Amendment lacks the language referring to the number of jurors available in misdemeanor cases, which does appear in Const. 1963, art. 1, § 20.

Starting with the discussion in Duncan v. Louisiana, 391 U.S. 145, 159-162, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968),³ the United States Supreme Court concluded that the Sixth Amendment gives defendants in state courts the right to a jury trial, except for certain petty offenses. The definitive passage from the majority decision in Duncan stated:

So-called petty offenses were tried without juries both in England and in the Colonies and have always been held to be exempt from the otherwise comprehensive language of the Sixth Amendment's jury trial provisions. There is no substantial evidence that the Framers intended to depart from this established common-law practice, and the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive

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