Young v. State, C--76--358

• Decision Date: 23 June 1976
• Docket Number: No. C--76--358,C--76--358
• Citation: 553 P.2d 192
• Parties: Terry Ray YOUNG, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 192

553 P.2d 192

Terry Ray YOUNG, Petitioner, v. The STATE of Oklahoma, Respondent.

No. C--76--358.

Court of Criminal Appeals of Oklahoma.

June 23, 1976.

Leslie R. Earl, Jr., Public Defender, Thomas W. Burns, Asst. Public Defender, Tulsa County, for petitioner.

S. M. Fallis, Jr., Dist. Atty., David K. Robertson and J. Pat Thompson, Asst. Dist. Attys., Tulsa County, Tulsa, for respondent.

OPINION

BLISS, Judge:

Petitioner, Terry Ray Young, was convicted upon his plea of guilty in the District Court, Tulsa County, Case No. CRF--75--2699, for the offense of Unauthorized Use of a Motor Vehicle, in violation of 47 O.S.1971, § 4--102. Pursuant thereto, the trial court sentenced the petitioner to a term of imprisonment of eighteen (18) months. Petitioner timely filed a motion to withdraw his plea of guilty, which upon hearing was overruled by the District Court, Tulsa County, and from this ruling the instant petition for writ of certiorari has been filed in this Court. We assume jurisdiction and proceed to dispose of the matter.

The instant appeal is predicated solely upon the contention that the trial court, at the sentencing hearing, erred in considering a presentence investigation and report ¹ which contained specific references to the petitioner's prior juvenile record. The petitioner contends that consideration of a prior juvenile record is an improper consideration in determining what sentence will be imposed against an adult offender and such a consideration violates the statutory proscription in 10 O.S.1971, § 1127, and this Court's prior holding in Lauen v. State, Okl.Cr., 515 P.2d 578 (1973). Title 10 O.S.1971, § 1127, provides in pertinent part:

'. . . A disposition of any child under this Act, or any evidence given in such cause, shall not in any civil, criminal or other cause or proceeding in any court be lawful or proper evidence against the child for any purpose whatever, except in subsequent cases against the same child under this Act. . . .'

Petitioner alludes to this Court's language in Lauen v. State, supra, wherein the Court states:

'. . . They (juvenile records) are not a proper consideration in the assessment of the punishment to be imposed upon defendant. Although the above section of the statute refers to 'evidence given in such cause,' it is this Court's opinion the language 'for any purpose whatever' prohibits the use of these records in an argument. Consequently, the manifestation of a juvenile record influencing an imposed punishment will be grounds for modification.'

Thus at issue is this Court's prior construction of 10 O.S.1971, § 1127, concluding that the statute prohibits use of an adult offender's prior juvenile record during an aggravation mitigation hearing as contemplated by 22 O.S.1971, § 973, ² and the applicability of this construction to the use of a presentence investigation report containing the prior juvenile record of an adult offender before the court.

We are compelled to re-examine and ascertain the intent of the legislative enactment, 10 O.S.1971, § 1127, and the viability of our holding in Lauen v. State, supra.

Many states have statutory provisions comparably worded to 10 O.S.1971, § 1127, and its apparent restriction of the use of juvenile records. ³ Particularly instructive is the lengthy discourse in People v. McFarlin, 389 Mich. 557, 208 N.W.2d 504, 64 A.L.R.3d 1274 (1973), wherein a statute ⁴ comparably worded to 10 O.S.1971, § 1127, was construed not to prohibit a presentence investigation report from including information concerning the juvenile history of an adult offender. The court observed that decisions of other states although not controlling, revealed the clear weight of judicial authority is in favor of full disclosure of a defendant's past, including his juvenile court history, to the sentencing judge. People v. McFarlin, 208 N.W.2d 510; also see, 64 A.L.R.3d at 1295.

We note that the heretofore quoted portion of the language of 10 O.S.1971, § 1127, has been carried forward without substantial change since the legislative enactment in S.L.1909, Ch. 13, Art. I, § 594, which in pertinent part reads:

'. . . A disposition of any child under this Act or any evidence given in such cause, shall not in any civil, criminal or other cause or proceedings whatever in any court be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this Act. . . .'

The intent of this particular statutory language obviously was formulated several decades prior to the enactment of the presentence investigation report procedure. ⁵ At the time of the drafting of this statutory language, the trial judge in determining the sentence, in a situation where discretion of sentence was conferred upon the court, would only have the alternative of hearing other evidence in mitigation or aggravation of punishment upon motion by either party. ⁶ Greater emphasis is now placed upon a particularized sentence for a particular individual, and this is evidenced by the enacted presentence investigation procedure and the particular statutes regarding the sentencing powers of the court. See, 22 O.S.1971, § 991a, et seq.

In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Supreme Court of the United States stated:

'. . . Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.

'Under the practice of individualizing punishments, investigational techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. . . .' (Footnotes omitted)

In People v. McFarlin, supra, the court observed:

'The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. A judge needs complete information to set a proper individualized sentence. A defendant's juvenile court history may reveal a pattern of law-breaking and his response to previous rehabilitative efforts. This, together with information concerning underlying social or family difficulties, and a host of other facts are essential to an informed sentencing decision, expecially if the offender is a young adult.

'Some adult offenders may indeed serve longer prison sentences because of information developed from the official juvenile court record. But others, because the presentence report is a complete and reliable chronicle, may serve shorter sentences or not be imprisoned at all. Such differentiation in sentencing predicated on differences in the backgrounds of offenders is contemplated by the indeterminate sentencing and probation acts. The objectives of those acts and of the restriction on the use of a juvenile record are entirely reconcilable.'

Thus, the court concluded that a presentence investigation and report may contain the juvenile history of the adult offender. Also, in Berfield v. State, 458 P.2d 1008 (Alaska 1969), the Alaska court stated:

'A judge, of all persons, should be most cognizant of the existence and meaning of AS 47.10.080(g), and of the fact that under that statute a juvenile offender may not be considered a criminal even though he has suffered a criminal conviction. But the judge cannot simply ignore that phase of appellant's life--before he reached 18 years of age--as though it did not exist--particularly when appellant was only 21 years old when sentenced. The judge is not required to operate in a vacuum. In sentencing a 21 year old person, the life, characteristics, and background behavior of that person prior to reaching the age of 18 years might be highly relevant. It should be noted that the judge cannot consider a juvenile offense as a criminal conviction for the purpose of prescribing a mandatory sentence. But that was not done in this case. The judge's consideration of factors relating to appellant's life, characteristics, background and behavior prior to reaching the age of 18 years does not mean that he considered appellant a criminal or that he was using the juvenile offenses as criminal convictions in determining the sentence to impose.' (Footnotes omitted)

In Walker v. State, Tex.Cr.App., 493 S.W.2d 239 (1973), the Texas Court observed:

'It makes a great deal of sense that the judge should have before him a thorough report of the accused's past record and background, when considering his motion for probation. The very purpose of granting probation is to release a convicted defendant who shows himself capable of adhering to certain conditions. The present appellant was 18 years old at the time of trial. The principles just enunciated apply even more so in such a case. It would be ridiculous to conclude that an 18-year-old with a lengthy juvenile record should be granted the same consideration as someone of the same age with a spotless record.'

We are of the opinion that the juvenile history of an adult offender is competent and relevant information of the social history of the adult offender and it is properly included in a...