People v. Fitchett, Docket No. 43546

• Decision Date: 17 March 1980
• Docket Number: Docket No. 43546
• Citation: 292 N.W.2d 191,96 Mich.App. 251
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Raymond FITCHETT, Defendant-Appellant. 96 Mich.App. 251, 292 N.W.2d 191
• Court: Court of Appeal of Michigan — District of US

Page 191

292 N.W.2d 191

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Raymond FITCHETT, Defendant-Appellant.

Docket No. 43546.

96 Mich.App. 251, 292 N.W.2d 191

Court of Appeals of Michigan.

March 17, 1980.

Released for Publication May 28, 1980.

[96 MICHAPP 252] Clarence M. Gabel, Farmington Hills, for defendant-appellant.

[96 MICHAPP 251] Frank J. Kelley, Atty. Gen., Robert A. [96 MICHAPP 252] Derengoski, Sol. Gen., L. Brooks Patterson, Prosecuting Atty., Robert Williams, Appellate Chief Asst. Pros. Atty., Ronald Weitzman, Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P. J., and CYNAR and BACH, ^* JJ.

CYNAR, Judge.

Defendant was convicted, upon his plea of guilty, of breaking and entering an occupied dwelling with the intent to commit larceny therein, M.C.L. § 750.110; M.S.A. § 28.305, and was sentenced to 1 to 15 years imprisonment. In exchange for tendering his plea, a charge of burning a dwelling house, M.C.L. § 750.72; M.S.A. § 28.267, was dismissed. Defendant appeals by leave granted.

The facts as admitted by defendant at his plea-taking proceeding indicated that a cohort of defendant gained entry into a dwelling house in Highland, Michigan, by breaking a window and climbing through it. He then opened a door and let in the defendant, whereupon the two searched the home for money and valuables. Next, the two looked for some gasoline with which to set fire to the dwelling. According to defendant, they were seen at this time, apparently by a neighbor. Defendant found a can of gasoline in the garage, carried it into the house, doused the floor with gas, and set fire to it. The pair then left the premises.

Following preliminary examination, defendant petitioned the trial court for assignment to youthful trainee status under the Holmes Youthful Trainee Act, M.C.L. § 762.11 [96 MICHAPP 253] et seq.; M.S.A. § 28.853(11) et seq. The trial court's denial of said petition forms the basis of this appeal.

Defendant contends that the trial court abused its discretion in denying him youthful trainee status. Defendant mounts a three-pronged attack on the lower court ruling, claiming that: (1) the legislative intent of the Youthful Trainee Act is to provide a remedial training opportunity for youthful offenders based primarily on their age; (2) as a remedial statute, the Act should be liberally construed; and (3) denial of youthful trainee status to defendant, who was near to the lower age limit within which the act applies, ¹ on the basis of the gravity of the offenses with which defendant was charged was a clear abuse of discretion.

We agree with defendant that the Holmes Youthful Trainee Act is a remedial statute and should be construed liberally. People v. Bandy, 35 Mich.App. 53, 57, 192 N.W.2d 115 (1971), lv. den. 386 Mich. 753 (1971). And certainly, age is a factor which must weigh heavily in the exercise of the lower court's discretion, although we are not prepared to ascribe to it the primacy defendant urges us to. Also, there are without question other factors which must be examined and which will affect the balancing process.

However, contrary to the position proffered by the defendant, we believe that the seriousness of the offense is a factor intended by the Legislature to stand on an equal footing with age when the competing factors are weighed by the trial court in exercising its discretion. That this was intended by the Legislature is apparent on the face of M.C.L. § 762.11; M.S.A. § 28.853(11), which reads:

[96 MICHAPP 254] "Sec. 11. When a youth is alleged to have committed a criminal offense, other than murder in the first degree or a major controlled substance offense, between the youth's seventeenth and twentieth birthdays, the court of record having jurisdiction of the criminal offense may with the consent of both the affected youth and the youth's legal guardian or guardian ad litem elect to consider and assign that youth to the status of youthful trainee." (Emphasis added.)

The statute creates a class of offenses which per se exclude a youthful criminal offender from consideration for trainee status, thus divesting a trial court of any...