People v. Parrish , 216 Mich. App. 178 ( 1996 )

549 N.W.2d 32 (1996) 216 Mich. App. 178

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Allen David PARRISH, Defendant-Appellant.

Docket No. 188341.

Court of Appeals of Michigan.

Submitted March 20, 1996, at Detroit. Decided April 2, 1996, at 9:10 a.m. Released for Publication June 11, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James R. Reed, Prosecuting Attorney, and Michael E. Moody, Assistant Attorney General, for the People.

Robert S. Dombroski, North Street, for defendant on appeal.

Before SMOLENSKI, P.J., and MARKEY and SULLIVAN,^[*] JJ.

PER CURIAM.

Defendant, who was sixteen years old at the time of the offense, pleaded nolo contendere to a charge of third-degree criminal sexual conduct, M.S.A. § 750.520d; M.S.A. § 28.788(4), in exchange for the prosecutor's agreement to dismiss charges of first-degree criminal sexual conduct, breaking and entering an occupied dwelling with intent to commit criminal sexual conduct, and misdemeanor malicious destruction of personal property. At the plea hearing, defendant reserved the right to challenge the constitutionality of M.C.L. § 600.606; M.S.A. § 27A.606, also known as the automatic waiver statute. The trial court sentenced defendant to seven to fifteen years' imprisonment for his conviction of third-degree criminal sexual conduct. Defendant appeals as of right. We affirm.

Defendant contends that the trial court did not have jurisdiction to sentence him because the offense to which he pleaded nolo contendere was not one of the enumerated offenses in M.C.L. § 600.606; M.S.A. § 27A.606 and because the automatic waiver provision unconstitutionally denied him the due process protections associated with the traditional waiver provision of M.C.L. § 712A.4; M.S.A. § 27.3178(598.4), including the two-phase waiver hearings set forth in MCR 5.950. We disagree.

Under the automatic waiver statute, M.C.L. § 600.606; M.S.A. § 27A.606,

[the] circuit court has jurisdiction to hear and determine a violation of section 83, 89, 91, 316, 317, 520b, 529, or 529a of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.83, 750.89, 750.91, 750.316, 750.317, 750.520b, 750.529, and 750.529a, of the Michigan Compiled Laws, or section 7401(2)(a)(i) or 7403(2)(a)(i) of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.7401 and 333.7403 of the Michigan Compiled Laws, if committed by a juvenile 15 years of age or older and less than 17 years of age.

Contrary to the nomenclature associated with this statute, the waiver of juvenile defendants from the probate court to the circuit court is not automatic even though the juvenile is charged with one of the enumerated offenses. Indeed, the Legislature has given the prosecutor discretion to try juveniles in either forum:

The juvenile division of the probate court has jurisdiction over a child 15 years of age or older who is charged with a violation of [certain enumerated felonies listed in M.C.L. § 600.606; M.S.A. § 27A.606] only if the prosecuting attorney files a petition in juvenile court instead of authorizing a complaint and warrant. [M.C.L. § 712A.2(a)(1); M.S.A. § 27.3178(598.2)(a)(1); see In re Fultz, 211 Mich.App. 299, 311, 535 N.W.2d 590 (1995). Emphasis added.]

If the prosecuting attorney has reason to believe that a juvenile 15 years of age or older but less than 17 years of age has violated [one of the enumerated felonies], the prosecuting attorney may authorize the filing of a complaint and warrant on the charge with a magistrate concerning the juvenile. [M.C.L. § 764.1f; M.S.A. § 28.860(6); see People v. Cosby, 189 Mich.App. 461, 463; 473 N.W.2d 746 (1991). Emphasis added.]

See also People v. Black, 203 Mich.App. 428, 429-430, 513 N.W.2d 152 (1994).

First-degree criminal sexual conduct is one of the felonies enumerated in the automatic waiver statute. Thus, once the circuit court acquires jurisdiction to try the juvenile as an adult under the automatic waiver statute, it does not lose jurisdiction to sentence the defendant if he pleads guilty of a nonenumerated offense. People v. Dean, 198 Mich.App. 267, 269-270, 497 N.W.2d 223 (1993). Accordingly, the fact that defendant pleaded guilty of third-degree criminal sexual conduct in exchange for the dismissal of the first-degree criminal sexual conduct charge did not deny the trial court jurisdiction to sentence defendant. Id. at 270, 497 N.W.2d 223.

Although it is not entirely clear from defendant's appellate brief, defendant apparently argues that the normal due process considerations attendant with the traditional procedures used to waive a juvenile from the probate court to the circuit court under M.C.L. § 712A.4; M.S.A. § 27.3178(598.4) as well as MCR 5.950, which require the probate court to determine whether probable cause exists and whether waiver is in the best interests of the child and the public before granting the waiver, do not accompany a waiver under the automatic waiver statute. Upon review de novo, we disagree. See, e.g., Feaster v. Portage Public Schools, 210 Mich.App. 643, 648, 534 N.W.2d 242 (1995).

Our Supreme Court has found that a juvenile does not have a constitutional right to be treated as a juvenile. People v. Hana, 443 Mich. 202, 220, 504 N.W.2d 166 (1993). A juvenile defendant waived to the circuit court does, however, receive all appropriate constitutional protections:

In cases where a juvenile is waived to an adult criminal court, the juvenile is still afforded a right to jury trial and the presumption of innocence, and he is therefore not truly subjected to a harsher penalty because guilt is not yet established.... Rather, and in derogation of the common law, juvenile justice procedures are governed by statutes and court rules that the probate courts are required to follow in the absence of constitutional infirmity. [Id. Emphasis in original.]

After reviewing the statutes and the court rules attending both forms of waiver, we find no constitutionally significant differences between the two. Indeed, a juvenile subject to the automatic waiver statute is arraigned and probable cause is determined before the juvenile is bound over to the circuit court; the only difference between the automatic and traditional waiver procedures is that the probate court does not conduct the probable cause hearing for an automatic waiver case. Cf. MCR 5.950(B)(1).

Also, a juvenile who is waived to the circuit court under either method is entitled to a waiver hearing that focuses on balancing the interests of both the juvenile and the public. Hana, supra at 219, 223-224, 504 N.W.2d 166. Compare MCR 5.950 and MCR 6.931. Under the traditional waiver method, the "second phase" hearing is held in the probate court to determine whether the interests of the juvenile and the public would best be served by granting the motion for waiver. M.C.L. § 712A.4(4); M.S.A. § 27.3178(598.4)(4); MCR 5.950(B)(2). If the juvenile is automatically waived, he is entitled to a juvenile sentencing hearing after he has been convicted in an adult criminal trial or by plea to determine "whether to impose a sentence against the juvenile as though an adult offender or whether to place the juvenile on juvenile probation and commit the juvenile to state wardship." M.C.L. § 769.1(3); M.S.A. § 28.1072(3); MCR 6.931(E)(3). This "waiver-back" procedure is the equivalent of a second phase hearing under traditional waiver procedures, as mandated by M.C.L. § 712A.4(4); M.S.A. § 27.3178(598.4)(4) and MCR 5.950(B)(2), and uses the same flexible evidentiary standards even though guilt has been established. Hana, supra at 224, 504 N.W.2d 166. Moreover, the same six criteria applied at the second phase hearing under MCR 5.950(B)(2) are applied at the juvenile sentencing hearing under MCR 6.931(E)(3). Thus, we find no significant differentiations between the due process afforded a juvenile under the traditional waiver versus the automatic waiver provisions.^[1]

Defendant has provided no support for the contention that he was entitled to this dispositional hearing before being waived to the circuit court, and we find no logical support for this argument. Rather, because MCR 6.901(B) precludes a juvenile subject to the traditional waiver provisions from receiving a second phase hearing under MCR 5.950 and a waiver-back sentencing hearing under MCR 6.931, the statutes and court rules clearly entitle each juvenile to only one dispositional hearing before sentencing. We disagree with any implication that the dispositional hearing must be held before the circuit court accepts jurisdiction over the juvenile because, as we have noted, there is no constitutional right to be treated as a juvenile. Hana, supra at 220, 504 N.W.2d 166.

Accordingly, we find no merit in defendant's assertion that the automatic waiver statute is constitutionally infirm because it lacks the due process guarantees inherent in the traditional waiver statute.

Next, defendant challenges his sentence as being disproportionate. We disagree. When reviewing challenges to the proportionality of a sentence, this Court is limited to determining whether the lower court abused its discretion by violating the principle of proportionality. People v. Milbourn, 435 Mich. 630, 635-636, 654, 461 N.W.2d 1 (1990). Here, defendant's sentence of seven to fifteen years' imprisonment exceeds the minimum guidelines range of three to six years' imprisonment by one year. In sentencing defendant to a minimum sentence outside the guideline range, the trial court referred to defendant's history of inappropriate sexual activities and touching with family members as well as with other women while he was in residential treatment programs designed to remedy this problem. The court also noted that defendant purposely stopped taking his medications, that he committed the crime at issue soon thereafter, that, in light of past unsuccessful attempts, his potential for rehabilitation was grim, and that women and girls needed to be protected from him. Given our review of the record describing defendant's forcible rape of a young girl at knife-point after breaking into her house in the middle of the night and threatening to kill her if she did not comply, we conclude that defendant's sentence is proportionate considering the circumstances surrounding this offense and this offender. Milbourn, supra; see also People v. Nantelle, 215 Mich.App. 77, 83-84, 544 N.W.2d 667 (1996).

Affirmed.

NOTES

[*] Paul J. Sullivan, 17th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const. 1963, Art. 6, Sec. 23, as amended 1968.

[1] We note as an aside, however, that under traditional waiver hearing procedures, once a juvenile is tried as an adult, he must be sentenced as an adult. By comparison, under the automatic waiver hearing procedures, the trial court has discretion in this respect, i.e. it has the option of sentencing the juvenile as an adult or remanding the case to the probate court for disposition. People v. Veling, 443 Mich. 23, 29, 504 N.W.2d 456 (1993). As a practical matter, therefore, the automatic waiver procedures may result in a less harsh sentence. Id.