People v. Teske, Docket No. 83647

• Decision Date: 21 March 1986
• Docket Number: Docket No. 83647
• Citation: 383 N.W.2d 139,147 Mich.App. 105
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy David TESKE, Defendant-Appellant. 147 Mich.App. 105, 383 N.W.2d 139
• Court: Court of Appeal of Michigan — District of US

Page 139

383 N.W.2d 139

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy David TESKE, Defendant-Appellant.

Docket No. 83647.

147 Mich.App. 105, 383 N.W.2d 139

Court of Appeals of Michigan.

Submitted Sept. 6, 1985.

Decided Oct. 1, 1985.

Released for Publication March 21, 1986.

[147 MICHAPP 106] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Lavoy, Pros. Atty., and Lawrence J. VanWasshenova, Asst. Pros. Atty., for the People.

State Appellate Defender by Kim Robert Fawcett, for defendant-appellant on appeal.

Before V.J. BRENNAN, P.J., and WAHLS and HOOD, JJ.

PER CURIAM.

Defendant was charged with armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and felony firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He subsequently entered a plea of guilty to the armed robbery charge in return for dismissal of the felony firearm count. After establishing a factual basis for the plea, the trial court took the plea under advisement for consideration of defendant's request that he be granted trainee status under the Holmes Youthful Trainee Act, M.C.L. Sec. 762.11 et seq.; M.S.A. Sec. 28.853(11) et seq. (HYTA). HYTA status was denied, and defendant was sentenced to from 2 to 10 years' imprisonment with credit for 110 days served. He appeals as of right, claiming that the trial court abused its discretion in denying HYTA status.

This case arose from defendant's securing his father's .357 magnum revolver and using it to rob a female attendant at a Total gas station in Monroe County of $51. Defendant had no prior convictions or involvement with the criminal justice system. At the time of the taking of the plea, the trial judge remarked that in his 28 years on the bench this was the first time that anyone had ever requested that he grant HYTA status for an armed robbery offense. He indicated, however, that [147 MICHAPP 107] he "would be glad to consider these circumstances in the proper course" and that since this was a matter of discretion he would not accept the plea until he had made a determination on the HYTA request. After making its investigation, the probation department recommended against HYTA status. The trial judge indicated that after considering all the circumstances he agreed with the probation department and HYTA status was denied.

Defendant asserts on appeal that the trial court should be deemed to have relied "nearly exclusively" on the seriousness of the offense and not to have properly considered possible collateral adverse consequences to defendant of being burdened with a criminal record, as well as adverse civil consequences.

We agree with defendant that HYTA is a remedial statute and should be construed liberally. People v. Bandy, 35 Mich.App. 53, 57, 192 N.W.2d 115 (1971). Contrary to the position taken by defendant, however, we find no abuse of discretion in this case. It is true that the trial court considered the seriousness of the offense in determining whether to grant HYTA status. He did so quite properly in exercising his discretion. People v. Fitchett, 96 Mich.App. 251, 253, 292 N.W.2d 191 (1980). The court also considered defendant's age and other factors, as the following portion of the record demonstrates.

"THE COURT: Very well. Now I have considered what your lawyer has advanced and what was said before in the presentence report, the letters that have been received also. The offense, as Mr. Bronson says, is a highly severe one. The maximum sentence is life imprisonment, as you know, because a life has been endangered here, and very much endangered. This was a pretty powerful gun you had, a 357 magnum revolver of your father's. You robbed the attendant at the Total [147 MICHAPP 108] gas station, a Miss Powell, at gunpoint on July 16th of this year, escaping with the money, and were apprehended shortly thereafter.

"According to Mr. Blackwell's report, you first told the police that you used a BB gun but later admitted that it was the revolver that I referred to earlier, didn't you?

"MR. TESKE: Yes, your Honor.

"THE COURT: You're still seventeen?

"MR. TESKE: Yes, your Honor.

"THE COURT: This is your first felony offense. You're a single young man. ...