People v. Oligney , 41 Mich. App. 646 ( 1972 )

41 Mich. App. 646 (1972) 200 N.W.2d 786

PEOPLE
v.
OLIGNEY.

Docket No. 12782.

Michigan Court of Appeals.

Decided June 29, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Donald C. Noggle, Prosecuting Attorney, for the people.

Jack Carpenter, for defendant on appeal.

Before: R.B. BURNS, P.J., and LEVIN and TARGONSKI,^[*] JJ.

PER CURIAM.

Defendant was charged and pled guilty to the offense of willful and malicious burning of a dwelling house, i.e., arson. MCLA 750.72; MSA 28.267.

At arraignment on December 7, 1970, defendant petitioned for a competency examination. He was referred to the State Forensic Center and appeared in court again on February 23, 1971, subsequent to such referral. He was bound over for trial on March 26, 1971, following a preliminary examination. The court accepted his plea of guilty to arson at plea proceeding on July 9, 1971. Defendant seeks to have his conviction and sentence set aside. He raises two issues on appeal.

We are faced here with the question of whether the trial court heard and determined the issue of competence to stand trial in accordance with the provisions of MCLA 767.27a(4); MSA 28.966(11) and GCR 1963, 786.7. The record and transcripts indicate that there was no hearing or medical testimony regarding competency. No diagnostic report was offered or received into evidence and is not even present in the court file. The diagnostic report from the Forensic Center, if in fact there was one at all, was not submitted or used as evidence in any of the proceedings and is not even in the appeal file.

The applicable statute with reference to the issue of incompetence cited above provides as follows:

"Upon receipt of the diagnostic report and recommendations the sheriff shall immediately return the defendant to the committing court and the court shall immediately hear and determine the issue of competence to stand trial. The diagnostic report and recommendations shall be admissible as evidence in the hearing, but not for any other purpose in the pending criminal proceedings."

This Court in People v Chase, 38 Mich. App. 417, 421 (1972) said as follows:

"Here we deal with the failure of the court to hold a competency hearing upon the return of the accused from the diagnostic facility.

"We must, of necessity, hold that the learned trial judge was in error when he declined to hold the competency hearing mandated by the statute on the theory that ``the conducting of a formal competency hearing would have added nothing unless it was contested by the defendant.'

"The irreducible fact is that once commitment to the center pursuant to statute is ordered, the ultimate determination of the questions of one's competence to stand trial or to enter a plea, cannot rest merely on the conclusion reached there. The weight to be accorded to the findings made, and the legal effect of such findings, must be the subject of a judicial determination and order. Absent such a requirement a serious constitutional issue would arise. The proceedings were fatally infirm. We add, perhaps unnecessarily, that if neither the State nor the defendant chooses to introduce other testimony, the trial judge may make the judicial determination and base his order solely on the report of the center. (Emphasis added.)

"Of necessity in this case, we reverse and remand for a new trial."

It is our finding that the foregoing quotation from the Chase decision is applicable and decisional. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.