People v. Launstein , 45 Mich. App. 329 ( 1973 )

45 Mich. App. 329 (1973) 206 N.W.2d 540

PEOPLE
v.
LAUNSTEIN.

Docket No. 14145.

Michigan Court of Appeals.

Decided February 26, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Kenneth J. Myles, Prosecuting Attorney, for the people.

James G. Orford, for defendant on appeal.

Before: QUINN, P.J., and J.H. GILLIS and T.M. BURNS, JJ.

J.H. GILLIS, J.

Defendant was charged with breaking and entering a hardware store in Iosco County, Michigan, on November 2, 1971. Jurisdiction of defendant, a juvenile, was waived by a December 9, 1971 order of the juvenile division of Iosco County Probate Court. An information was issued charging the defendant in the first count with breaking and entering, MCLA 750.110; MSA 28.305. A second count charged the defendant with larceny in a building, MCLA 750.360; MSA 28.592. The defendant proffered a plea of guilty to the second count and was then questioned extensively by the trial court. The plea was accepted and the defendant was subsequently sentenced to three years probation. One of the probationary terms was that defendant serve the first six months in the county jail.

On appeal, the defendant contends that he was not properly advised of his constitutional rights as required by People v Jaworski, 387 Mich. 21 (1972). A second allegation of reversible error posed by the defendant was that the trial court improperly considered the defendant's juvenile record in sentencing him.

We have examined the transcript of the plea proceedings and find that the three basic requirements set forth in the Jaworski decision were met by the trial court.

We feel that the trial court may use defendant's juvenile record as background information in order to make a proper determination as to what sentence to impose on the defendant. People v Coleman, 19 Mich. App. 250 (1969); People v Welch, 25 Mich. App. 694 (1970); People v Bradshaw, 28 Mich. App. 354 (1970); and People v Ward, 33 Mich. App. 308 (1971).

Affirmed.

QUINN, P.J., concurred.

T.M. BURNS, J. (dissenting).

Because the lower court used the 16-year-old defendant's juvenile record in determining sentence, I am obliged to disagree with the holding of the majority opinion. I am aware that this issue has not been resolved and is presently before the Supreme Court. I, nevertheless, feel that I must dissent.

I likewise feel obliged to mention the obvious fact that the young defendant was waived out of juvenile court. The appellant does not raise this as an issue, but I believe the Court should, sua sponte, at least mention a situation as critical as this one. Once the issue is raised, one of the questions would be whether or not to pass on the validity of the waiver or to withhold decision until People v Fields, 388 Mich. 66 (1973), now before our Supreme Court on rehearing, has been handed down.

On the question of consideration of the juvenile record by the lower court, I feel this is sufficient to warrant a reversal and a new trial.