People v. Lyons

• Decision Date: 07 February 1994
• Docket Number: Docket No. 163865
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dashawn Edward LYONS, a/k/a Dasuan Lyons, Defendant-Appellee (On Remand).
• Court: Court of Appeal of Michigan — District of US

Page 170

513 N.W.2d 170

203 Mich.App. 465

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dashawn Edward LYONS, a/k/a Dasuan Lyons, Defendant-Appellee (On Remand).

Docket No. 163865.

Court of Appeals of Michigan.

Submitted Nov. 8, 1993, at Detroit.

Decided Feb. 7, 1994, at 10:00 a.m.

Released for Publication April 1, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Thomas M. Chambers, Asst. Pros. Atty., for the People.

State Appellate Defender by Susan M. Meinberg, for the defendant on appeal.

Before MICHAEL J. KELLY, P.J., and JANSEN and REILLY, JJ.

ON REMAND

JANSEN, Judge.

This case is before us on remand from the Supreme Court for reconsideration of this appeal after the Supreme Court concluded that defendant did not receive effective assistance of appellate counsel. People v. Lyons, 442 Mich. 895, 502 N.W.2d 41 (1993). We again reverse the trial court's decision to sentence defendant as a juvenile.

Defendant ¹ pleaded guilty before Detroit Recorder's Court Judge Dalton A. Roberson to first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and possession of a firearm during the commission of a felony, ² M.C.L. § 750.227b; M.S.A. § 28.424(2), on March 30, 1990. The offenses were committed on November 27, 1989, at the home of the victim, Douglas Thomas, in the City of Detroit. Defendant, born August 10, 1973, was sixteen years old when he committed the offenses. A juvenile sentencing hearing was held on July 11, 1990, July 12, 1990, and August 21, 1990. Following the testimony, the trial court issued a written opinion and order on November 30, 1990, and sentenced defendant as a juvenile.

The prosecutor appealed that decision to this Court, and this Court reversed the order of probation and commitment and remanded to the trial court for imposition of an adult sentence. People v. Lyons, 195 Mich.App. 248, 489 N.W.2d 218 (1992). The Supreme Court vacated that decision and remanded to this Court for reconsideration of the appeal. The prosecutor again only appeals the trial court's decision to sentence defendant as a juvenile offender rather than as an adult offender.

The standard of review of a trial court's decision to sentence a minor as a juvenile or as an adult is a bifurcated one. First, the trial court's factual findings supporting its determination regarding each factor enumerated in M.C.L. § 769.1(3); M.S.A. § 28.1072(3) are reviewed under the clearly erroneous standard. MCR 2.613(C); People v. Passeno, 195 Mich.App. 91, 103, 489 N.W.2d 152 (1992). The trial court's factual findings are clearly erroneous if, after review of the record, this Court is left with a definite and firm conviction that a mistake has been made. Id. Second, the ultimate decision whether to sentence the minor as a juvenile or as an adult is reviewed for an abuse-of-discretion. The abuse of discretion standard requires the reviewing court to determine whether the sentence is proportionate to the seriousness of the circumstances surrounding the offense and the offender. Id., pp. 103-104, 489 N.W.2d 152; People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990).

Pursuant to M.C.L. § 769.1(3); M.S.A. § 28.1072(3), and MCR 6.931(A), the trial court must conduct a juvenile sentencing hearing to determine if the best interests of the juvenile and the public would be served better by placing the minor in the custody of the juvenile offender system or by sentencing the juvenile as an adult. The trial court is required to consider the following factors in making its determination:

(a) The prior record and character of the juvenile, his or her physical and mental maturity, and his or her pattern of living.

(b) The seriousness and the circumstances of the offense.

(c) Whether the offense is part of a repetitive pattern of offenses which would lead to 1 of the following determinations:

(i) The juvenile is not amenable to treatment.

(ii) That despite the juvenile's potential for treatment, the nature of the juvenile's delinquent behavior is likely to disrupt the rehabilitation of other juveniles in the treatment program.

(d) Whether, despite the juvenile's potential for treatment, the nature of the juvenile's delinquent behavior is likely to render the juvenile dangerous to the public if released at the age of 21.

(e) Whether the juvenile is more likely to be rehabilitated by the services and facilities available in adult programs and procedures than in juvenile programs and procedures.

(f) What is in the best interests of the public welfare and the protection of the public security. [M.C.L. § 769.1(3)(a)-(f); M.S.A. § 28.1072(3)(a)-(f).]

See MCR 6.931(E)(3)(a)-(f).

The prosecutor has the burden of proving by a preponderance of the evidence that the best interests of the juvenile and the public would be served by sentencing the juvenile as an adult offender. MCR 6.931(E)(2). The trial court must make factual findings and conclusions of law in determining whether to sentence the minor as a juvenile offender or as an adult offender. M.C.L. § 769.1(5); M.S.A. § 28.1072(5); MCR 6.931(E)(4).

In reviewing the trial court's factual findings and its ultimate decision to sentence defendant as a juvenile offender, we must determine first whether we should consider posthearing reports ³ submitted by defendant. We conclude that it is not appropriate for us to consider any information concerning defendant after the juvenile sentencing hearing because we must determine whether the trial court's factual findings are clearly erroneous or whether it abused its discretion in sentencing defendant as a juvenile on the basis of the evidence presented at the sentencing hearing held in July and August 1990. Accordingly, we will not consider the posthearing reports.

The trial court made the following factual findings: (1) that defendant was physically and mentally mature; (2) that the offense committed by defendant was of a serious nature; (3) that defendant's behavior was not likely to disrupt the rehabilitation of other juveniles in the treatment program; (4) that defendant's behavior was not likely to render him more dangerous to the public at age twenty-one; (5) that defendant was more likely to be rehabilitated by the services and facilities available in a maximum security juvenile program than by the services available in an adult program; (6) that the best interests of defendant and the public would be served by placing defendant on probation and committing him to a juvenile facility; and (7) that the prosecution had failed to prove by a preponderance of the evidence that the best interests of the juvenile and the public would be served by sentencing defendant as an adult.

After reviewing the testimony presented at the juvenile sentencing hearing, we believe that the trial court's factual findings were clearly erroneous and we are left with a definite and firm conviction that a mistake has been made. The trial court abused its discretion in placing defendant in the juvenile system because the prosecutor proved by a preponderance of the evidence that the best interests of defendant and the public would be served by sentencing defendant as an adult.

Regarding defendant's physical and mental maturity, defendant was characterized as being competent, intelligent (although generally characterized as having borderline intelligence), mature, and capable of performing adequately in an academic setting. Despite his capabilities, defendant was suspended six times from school for fighting, he was expelled from school for carrying a knife, and he would flaunt his beeper and money to his schoolmates. At the age of fourteen or fifteen, defendant rented a car to make his drug deliveries. Defendant ran away from his home several times and would live in crack houses and sell crack cocaine. At the time of Thomas' death, defendant was selling crack cocaine out of Thomas' house.

Several of the witnesses indicated that they found defendant was not remorseful for his actions in killing Thomas. Further, testimony indicated that defendant needed to command power over others, that he had no regard for authority, that he was manipulative, that he had a low frustration level, and that he would impulsively act out.

Regarding the seriousness of the offenses, defendant shot the victim in the face five times at close range. The trial court correctly stated that this offense was "very grave." The offenses arose out of the fact that the victim apparently owed defendant $100 for a drug debt. As the victim sat on his couch, defendant noticed his wallet and attempted to take it. A struggle apparently ensued and defendant shot the victim five times in the face. Defendant's claim on appeal that he did not know that the gun was an automatic, that he thought he fired only one shot, but that the gun kept on firing, is absurd. Defendant admitted to Dr. Van Horn that he carried a gun for protection and that the gun he carried was an automatic. Shooting the gun once or five times is surely of little consequence to the victim.

Regarding whether defendant is amenable to treatment, the evidence before the trial court indicated that he was not. In June 1988, defendant was arrested and found guilty of possession of cocaine. He was placed in temporary custody of the juvenile court and placed on intensive probation. In November 1988, defendant violated the terms of his probation by being truant from his family home. Defendant was placed in the Flint Detention Center, where his adjustment was described as poor, he was disruptive, and he teased his peers. Defendant was transferred to Boysville of Michigan, where his adjustment was described as fair. Defendant left without permission following an outing at a Detroit Tigers game. In August 1989, defendant was arrested for carrying a concealed weapon and possession of cocaine. He was again placed in the Flint...