People v. Miller, Docket No. 145089.

• Decision Date: 17 May 1993
• Docket Number: Docket No. 145089.
• Parties: PEOPLE v. MILLER
• Court: Court of Appeal of Michigan — District of US

199 Mich. App. 609

503 N.W.2d 89

PEOPLE v. MILLER

Docket No. 145089.

Michigan Court of Appeals.

Submitted November 17, 1992, at Detroit.

Decided May 17, 1993, at 9:05 A.M.

COPYRIGHT MATERIAL OMITTED

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Thomas M. Chambers, for the people.

Kraizman & Kraizman (by Jack J. Kraizman), for the defendant.

Before: DOCTOROFF, C.J., and MURPHY and CAVANAGH, JJ.

CAVANAGH, J.

Defendant pleaded guilty of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to rob while armed, MCL 750.89; MSA 28.284, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to juvenile probation and confinement until age twenty-one. In this appeal, the prosecution claims that the trial court erred in sentencing defendant as a juvenile. We agree and reverse. In addition, we vacate defendant's felony-firearm conviction.

Pursuant to MCL 769.1(3); MSA 28.1072(3), a court having jurisdiction over a juvenile must conduct a hearing to determine whether the best interests of the juvenile and the public would be served by placing the juvenile on probation or by sentencing the juvenile as an adult. In making this determination, the trial court must consider:

(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.

The prosecution bears the burden of establishing by a preponderance of the evidence that the best interests of the juvenile and the public would be served by imposing a sentence against the juvenile as though the juvenile was an adult offender. MCR 6.931(E)(2). The trial court must make findings of fact and conclusions of law. MCR 6.931(E)(4).

At the juvenile sentencing hearing, "the court shall receive and consider the presentence report prepared by the probation officer and the social report prepared by the department of social services." MCR 6.931(E)(1). A social report is defined as "the written report on a juvenile for use at the juvenile sentencing hearing prepared by the department of social services as required by section 4 of the Juvenile Facilities Act, 1988 PA 73, MCL 803.224; MSA 25.399(224)." MCR 6.903(K).

Under § 4(1) of the Juvenile Facilities Act, the Department of Social Services must "inquire into the antecedents, character, and circumstances of the juvenile, and shall report in writing to the court prior to the juvenile's sentencing." MCL 803.224(1); MSA 25.399(224)(1). A report must include:

(a) An evaluation of and a prognosis for the juvenile's adjustment in the community based on factual information contained in the report.

(b) A recommendation as to 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.

(c) A recommendation as to what disposition is in the best interests of the public welfare and the protection of the public security. MCL 803.224(2); MSA 25.399(224)(2).

When drafting a presentence investigation report, the probation officer must also inquire "into the antecedents, character, and circumstances of the person" and include in a report "an evaluation of and a prognosis for the person's adjustment in the community" and a "specific written recommendation for disposition based on the evaluation and other information." MCL 771.14 subds (1), (2)(a), and (2)(d); MSA 28.1144 subds (1), (2)(a), and (2)(d).

In reviewing a court's decision to sentence a juvenile under the provisions of the statute, this Court first evaluates for clear error the sentencing court's findings with regard to each of the enumerated factors in accordance with the standard mandated by MCR 2.613(C). People v Passeno, 195 Mich App 91, 103; 489 NW2d 152 (1992). The trial court's findings are clearly erroneous if, after a review of the entire record, the appellate court is left with a firm and definite conviction that a mistake has been made. Id.

In this case, although we will concede that none of the statutorily required witnesses recommended adult disposition, we cannot conclude that the prosecution failed to present any affirmative evidence in support of sentencing defendant as an adult. In our opinion the prosecution did produce evidence that, when considered in light of the statutory criteria, established that the best interests of the defendant and the public would be served by sentencing him as though he was an adult.

At the sentencing hearing, defendant's probation officer testified that defendant had been placed on probation on November 13, 1989, after being adjudicated guilty of possession with intent to deliver cocaine. Evidence was also presented that defendant had been charged with first-degree criminal sexual conduct involving a six-year-old in 1985 and with felonious assault and felony-firearm in 1988.

After being placed on probation for the cocaine offense, defendant failed to report as required, failed to return a contract that was supposed to be drafted by him and his parents, and was thrown out of school for fighting. Less than three months after being placed on probation, the instant offense occurred. The evidence also revealed that defendant came from a dysfunctional family and that he was often thrown out of the house by his grandmother, a chronic alcoholic with whom he lived.

There was also evidence that defendant's "grasp of social conventionality and social judgment is impaired ... that he is rebellious, resentful and nonconforming , that his impulse control is poor and he lacks frustration tolerance ... , and that his potential for violence is real." He "demonstrates a lack of control and discipline in respecting the lives of others or the consequences of his behavior. He is prone toward violence and is greatly influenced by the negative, antisocial and criminal behavior of his friends."

In light of the first statutory criterion, which requires consideration of the defendant's prior record, mental maturity, pattern of living, and character, we can only conclude that the prosecution did submit evidence concerning these factors. And we are firmly convinced that the trial court erred in determining that these aspects of the defendant's life had not been fully developed at the sentencing hearing.

With regard to the seriousness of this offense, the second statutory criterion, the extent of defendant's involvement was carefully established on the record, and the trial court erred in not taking all of these circumstances into consideration. According to the evidence in the record, while defendant was not the one who actually fired the fatal shots, he admittedly set out on a mission to steal a car at gunpoint and provided the murder weapon. Moreover, a witness who saw the defendant earlier on the evening of the murder testified that in response to a codefendant's remark that they were going to "check somebody in," the defendant brandished his handgun and discharged it into the air. Furthermore, there was testimony that before the shooting, the defendant had remarked that he was going to kill someone and take their car. Immediately thereafter, the defendant tried to steal, and then fired upon, an occupied Chrysler automobile. The shot struck the driver's door just inches below the window. The testimony also revealed that it was the defendant who suggested that a tree be used to slow down the vehicles and that he helped place one in the road.

The prosecution also presented evidence that the crimes committed in this case were part of a repetitive pattern of offenses that would support a determination that defendant either would not be amenable to treatment or, if amenable, would be disruptive to others in a treatment program. Defendant had been adjudicated less than three months earlier for possession with intent to deliver, had performed poorly while on probation, had committed a separate armed assault just before the murder, had been kicked out of three schools for fighting, and was disruptive while housed at the Wayne County Youth Home. In light of this evidence, we are firmly convinced that the trial court erred in determining that defendant was amenable to treatment.

With respect to whether defendant would pose a danger to the public, given his assaultive and criminal history, the seriousness of the offense, and the psychological indications that he is resistant to change, the evidence indicates that the nature of his delinquent behavior is likely to render him dangerous to the public if released at age twenty-one. A finding to the contrary is clearly erroneous.

With respect to the testimony and the reports required from the probation officer and the Department of Social Services under MCR 6.931(E)(1), the scope of the recommendations offered by these witnesses has been delineated by the statutes that mandate their appearances. Those witnesses appearing under § 4 of the Juvenile Facilities Act must limit...