People v. Ristich
Decision Date | 11 August 1988 |
Docket Number | No. 94239,94239 |
Citation | 169 Mich.App. 754,426 N.W.2d 801 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Gus RISTICH, Defendant-Appellant. |
Court | Court 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.
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:
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 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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