People v. Ristich

Decision Date11 August 1988
Docket NumberNo. 94239,94239
Citation169 Mich.App. 754,426 N.W.2d 801
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Gus RISTICH, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

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

Before DANHOF, C.J., and WEAVER and BATZER *, JJ.

PER CURIAM.

Defendant pled guilty in Bay Circuit Court to violation of probation and unlawfully driving away an automobile, M.C.L. Sec. 750.413; M.S.A. Sec. 28.645. On April 7, 1986, he was sentenced to forty to sixty months imprisonment for each offense, with the sentences to run concurrently. Defendant appeals as of right from his sentences, requesting this Court to remand his case to the circuit court for a hearing and resentencing in accordance 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). Defendant asserts that he is entitled to a Tucker hearing because the sentencing judge imposed the sentences in reliance on a prior juvenile delinquency adjudication in which defendant had not been represented by counsel. We disagree and affirm defendant's convictions and sentences.

In People v. Watroba, 89 Mich.App. 718, 723, 282 N.W.2d 196 (1979), this Court stated the threshold prerequisites which must be met by a defendant seeking a Tucker hearing, namely, prima facie proof (1) that his prior conviction was constitutionally infirm, and (2) that such conviction was considered by the court in imposing sentence. Having made the threshold showing, however, defendant is not automatically entitled to a Tucker hearing. A Tucker hearing is mandated only where it appears from the totality of the circumstances that defendant's sentence might have differed had the sentencing judge known of the infirmity of the prior conviction.

Under the rule of Tucker and Moore, a criminal conviction obtained in violation of a defendant's right to counsel cannot be used to enhance a sentence. Other panels of this Court have noted that there is no such thing as a "juvenile conviction." People v. Covington, 144 Mich.App. 652, 376 N.W.2d 178 (1985), remanded 425 Mich. 853 (1986), lv. den. 426 Mich. 866 (1986), citing Kent v. United States, 383 U.S. 541, 556, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); People v. Daniels, 149 Mich.App. 602, 386 N.W.2d 609 (1986). Accordingly, these other panels have concluded that the rule of Tucker and Moore is not applicable to constitutionally infirm juvenile delinquency adjudications 1 used to enhance an adult criminal sentence, even where the delinquency adjudication was violative of defendant's right to counsel. Covington and Daniels. Defendant cites our Supreme Court's remand of Covington, 425 Mich. 853 (1986), for the converse proposition, i.e., that Tucker and Moore are applicable to delinquency adjudications. Daniels expressly relies on Covington.

In our view, the continued viability of this Court's opinions in Covington and Daniels are suspect in view of the Supreme Court's remand in Covington, albeit an unexplained remand. Beyond that, given the continued viability of Tucker and Moore as our premise, we disagree with the rule as stated by the Covington and Daniels panels. As to the argument that delinquency adjudications are not "criminal convictions," the United States Supreme Court in In re Gault, 387 U.S. 1, 49-50, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), stated:

"Against the application to juveniles of the right to silence, it is argued that juvenile proceedings are 'civil' and not 'criminal,' and therefore the privilege should not apply.... However, it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites....

"It would be entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the ground that these cannot lead to 'criminal' involvement. In the first place, juvenile proceedings to determine 'delinquency,' which may lead to commitment to a state institution, must be regarded as 'criminal' for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the 'civil' label-of-convenience which has been attached to juvenile proceedings."

The Court affirmed this same line of reasoning in a delinquency case involving double jeopardy. Speaking for the Court in Breed v. Jones, 421 U.S. 519, 529, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), Chief Justice Burger said:

"We believe it is simply too late in the day to conclude, as did the District Court in this case, that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years. For it is clear under our cases that determining the relevance of constitutional policies, like determining the applicability of constitutional rights, in juvenile proceedings, requires that courts eschew 'the "civil" label-of-convenience which has been attached to juvenile proceedings.' "

We cannot agree with the underpinnings of the panels' decisions in Covington and Daniels, resting as they do on the " 'civil' label-of-convenience." We conclude, contrary to those decisions, that a...

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9 cases
  • People v. Raby
    • United States
    • Michigan Supreme Court
    • February 5, 1998
    ...exercise of marching up the sentencing hill again, only to hand down the same sentence and march back down." People v. Ristich, 169 Mich.App. 754, 759, 426 N.W.2d 801 (1988), and United States v. Tucker, 404 U.S. 443, 449-452, 92 S.Ct. 589 [593-594], 30 L.Ed.2d 592 (1972) (Blackmun, J., dis......
  • People v. Haywood
    • United States
    • Court of Appeal of Michigan — District of US
    • March 6, 1995
    ...at 439-440, 216 N.W.2d 770; People v. Leary (On Remand), 198 Mich.App. 282, 286-287, 497 N.W.2d 922 (1993); People v. Ristich, 169 Mich.App. 754, 756, 426 N.W.2d 801 (1988). From our review of the record, it is clear that the trial court did not enhance defendant's sentence on the basis of ......
  • People v. Leary
    • United States
    • Court of Appeal of Michigan — District of US
    • January 21, 1992
    ...the sentencing court may enhance a defendant's sentence based on counselless juvenile adjudications. Compare People v. Ristich, 169 Mich.App. 754, 756-759, 426 N.W.2d 801 (1988), to People v. Himmelein, 177 Mich.App. 365, 381, 442 N.W.2d 667 (1989), lv. den. 434 Mich. 903 (1990), cert. den.......
  • People v. Yeoman, Docket No. 165345
    • United States
    • Court of Appeal of Michigan — District of US
    • August 23, 1996
    ...of marching up the sentencing hill again, only to hand out the same sentence and march back down again." People v. Ristich, 169 Mich.App. 754, 759, 426 N.W.2d 801 (1988), citing United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Therefore, having concluded that defe......
  • Request a trial to view additional results

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