People v. Covington

• Decision Date: 12 November 1985
• Docket Number: Docket No. 80826
• Citation: 376 N.W.2d 178,144 Mich.App. 652
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Gene COVINGTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 178

376 N.W.2d 178

144 Mich.App. 652

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Gene COVINGTON, Defendant-Appellant.

Docket No. 80826.

Court of Appeals of Michigan.

Submitted May 13, 1985.

Decided Aug. 5, 1985.

Released for Publication Nov. 12, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Michael Hocking, Pros. Atty., and K. Davison Hunter, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Karla K. Goodman, Lansing, for defendant-appellant.

Before T.M. BURNS, P.J., and ALLEN and M.J. TALBOT ^*, JJ.

TALBOT, Judge.

Defendant appeals as of right from his plea-based conviction of uttering and publishing, M.C.L. Sec. 750.249; M.S.A. Sec. 28.446. He was sentenced to from 9 to 14 years' imprisonment. Defendant was also charged in a supplemental information with being a fifth-felony offender, and pursuant to a plea bargain, he pled guilty to the uttering and publishing count in return for dismissal of the supplemental information. Defendant raises two issues on appeal: Whether the case must be remanded to the trial court for a hearing to determine if the court relied on several juvenile adjudications and misdemeanor convictions at which defendant did not have the benefit of counsel and whether the trial court abused its discretion in imposing a sentence which should shock the conscience of this Court.

The presentence report in this case lists numerous entries under the heading "Previous Criminal History: Juvenile:". By affidavit filed in this Court, defendant states that to the best of his recollection he was neither represented by nor waived counsel at any of his juvenile court appearances. Suffice it to say that the presentence report discloses that defendant was made a ward of the state and committed to Camp Highfields from 1968 to 1971 based on juvenile adjudications including larceny in a building, unlawfully driving away an automobile, glue sniffing, larceny from an automobile and breaking and entering.

Defendant would have this Court accept the position that a "juvenile conviction" without counsel is as unconstitutionally infirm as its adult counterpart and should, therefore, not be considered in sentencing. Defendant relies on Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and People v. Carmouche, 112 Mich.App. 325, 315 N.W.2d 924 (1982). In Kent, the United States Supreme Court in addressing the question of waiver of jurisdiction from juvenile to adult court did hold that assistance of counsel in the "critically important" determination of waiver is essential to the proper administration of juvenile proceedings. 383 U.S. 553, 86 S.Ct. 1053. Justice Fortas for the majority also went on to say that:

"This concern, however, does not induce us in this case to accept the invitation to rule that constitutional guaranties which would be applicable to adults charged with the serious offenses for which Kent was tried must be applied in juvenile court proceedings concerned with allegations of law violation." 383 U.S. 556, 86 S.Ct. 1054. (Footnote omitted.)

People v. Carmouche, supra, was simply remanded, based on agreement of the prosecutor, to determine whether the sentencing judge considered constitutionally infirm juvenile convictions. To the extent that Carmouche refers to "juvenile convictions", it incorrectly states the law. A juvenile is subject to an adjudication of whether his conduct brings him within the jurisdiction of the probate court; there is no such thing as a "juvenile conviction". As to the agreed upon constitutional infirmity that might have existed, Carmouche does not state what the infirmity is. We do hold that a juvenile adjudication without counsel is not per se constitutionally infirm. Thus, the adjudications contained in defendant's presentence report, even if his affidavit is accepted, were permissibly considered by the sentencing judge.

Defendant further requests a remand for a hearing in compliance with United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589; 30 L.Ed.2d 592 (1972), and People v. Moore, 391 Mich. 426, 216 N.W.2d 770 (1974), in relation to four misdemeanor convictions appearing in the presentence report heading "Previous Criminal History: Adult:". The four misdemeanors were, specifically:

8/23/71, Lansing, glue sniffing;

3/6/80, Lansing, two counts of assault and battery;

2/22/81, Lansing, glue sniffing and disorderly;

3/19/81, Lansing, glue sniffing and disorderly.

The presentence report notes these convictions were obtained where defendant was not represented by counsel. The presentence report also sets forth the following adult entries (convictions not in dispute on appeal):

12/22/71, Lansing, B & E, 3 years probation, 1st 8 months jail;

12/29/72, Lansing, Violation Probation, 2 1/2 to 10 yrs, SPSM;

12/29/72, Lansing, B & E, 2 1/2 to 10 yrs SPSM;

2/9/75, Lansing, B & E, 4 to 10 yrs SPSM;

2/9/75, Lansing, Att. R & C 0/$100, 1 yr 8 mos to 2 1/2 yrs SPSM;

1/26/77, Prison Escape, 9 mos to 5 yrs;

11/3/78, Paroled to Lansing;

4/18/80, Returned as parole violator;

9/23/80, Paroled to Lansing;

10/24/80, Lansing, Entry W/O Permission, 90 days;

8/24/81, Lansing, Larceny Building, 300 days;

3/23/83, Discharge Parole;

6/28/83, Lansing, U & P Instant Offense.

It should be noted that at sentencing both defendant and his counsel acknowledged that they had reviewed the presentence report and found it factually correct. Moreover, defense counsel elaborated on the question of defendant's abuse of controlled substances and stated that defendant had successfully completed programs which had resulted in his being free from the problem since parole in March, 1983....