In Re Whittaker

607 N.W.2d 387, 239 Mich. App. 26

• Court: Michigan Court of Appeals
• Decided: March 22, 2000
• Docket: Docket 208027
• Status: Published

Opinions

Talbot, P. J.

The prosecutor filed a delinquency petition in the juvenile division of the probate court charging respondent as a juvenile with two counts of first-degree criminal sexual conduct, MCL 750.520b;, MSA 28.788(2), and one count of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3), involving a four-year-old child. Following adjudication, the probate court found that the prosecution had proved the material allegations of one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct. The trial court placed respondent on probation, released him into the physical custody of his parents, and ordered him to perform forty hours of community service. Respondent appeals as of right. We affirm.

Respondent contends that he was denied his constitutional right to trial by jury because he did not make a knowing and intelligent waiver either in writing or in open court, as required by MCL 763.3; MSA 28.856. Instead, respondent’s counsel, on the record, withdrew the request for a jury trial. Respondent argues that he had a due process right to a jury trial in the adjudicative stage of this proceeding and that a valid waiver of that right cannot be inferred from his counsel’s representations to the trial court. We do not agree.

It is well settled that “the full panoply of constitutional rights” does not apply to juvenile proceedings. People v Hana, 443 Mich 202, 225; 504 NW2d 166 (1993). The applicable due process standard in juvenile proceedings is “fundamental fairness.” McKeiver v Pennsylvania, 403 US 528, 543; 91 S Ct 1976; 29 L Ed 2d 647 (1971). While juveniles are entitled to appropriate notice, to counsel, to confrontation and cross-examination, to a privilege against self-incrimination, and to a standard of proof beyond a reasonable doubt, there is no constitutional right to a jury trial. Id. at 533. Because there is no constitutional right to a jury trial in juvenile proceedings, the jury waiver process does not implicate constitutional concerns. Although the juvenile’s right to a jury trial is not protected by the constitution, juvenile justice procedures are governed by the applicable statutes and court rales, with an emphasis on rehabilitation rather than retribution.¹ Hana, supra at 210, 213, 220.

A juvenile is entitled to a jury trial only if a written demand is filed with the court. MCR 5.911. A juvenile proceeding is not a criminal proceeding. See MCL 712A.1; MSA 27.3178(598.1); MCR 5.101; MCR 5.001; In re Alton, 203 Mich App 405, 407; 513 NW2d 162 (1994). The jury waiver statute relied on by respondent, MCL 763.3; MSA 28.856, applies in criminal cases only and is not applicable to the delinquency proceeding here. Jury procedure in juvenile court is governed by MCR 2.510-2.516, except as provided in MCR 5.911(C). The court rules do not specify any required procedure for a juvenile’s withdrawal of a jury demand, and we decline to create any by judicial fiat. As the trial judge explained from the bench to defense counsel, under the juvenile system the juvenile speaks through a “representative adult” instead of speaking for himself.² Here, respondent’s attorney stated, in open court and in the presence of respondent and both his parents, that counsel had spoken to respondent’s mother and that “they had decided that they would waive the jury and have this matter held as a bench trial.” The prosecutor had no objection, and the trial court did not insist on a jury. Respondent was ultimately adjudicated and released to his parents, in keeping with the philosophy in the Juvenile Code.³ MCR 5.902(B)(1). The trial court and both counsel worked together here for respondent’s “welfare and the best interests of the public.” Id. No more is required for fundamental fairness.

There is no merit to respondent’s claim that he was denied his rights to due process and a fair trial because of the eighteen-month prearrest delay. Even assuming that a juvenile has the same rights in this regard as an adult criminal defendant, a defendant must first demonstrate prejudice in order to establish a due process violation. People v Bisard, 114 Mich App 784, 791; 319 NW2d 670 (1982). The delay here, which the court did not consider unusual in light of the victim’s youth, worked to respondent’s advantage in some respects and did not prejudice him in any specifically articulable way.

There is no merit to respondent’s claim that the trial court abused its discretion in denying him a Ginther4 hearing on his postdisposition claim that trial counsel was ineffective. We find no case law, and respondent cites none, to suggest that the Ginther standard for representation in criminal trials is relevant to a juvenile proceeding. In any case, the trial court found that, even assuming that each of respondent’s allegations was true, they were not enough to establish ineffective assistance of counsel. We agree.

Finally, respondent contends that he and his parents were denied their equal protection rights by the requirement that respondent, who lives in his parents’ home, register as a sex offender under MCL 28.728; MSA 4.475(8), because it punishes the parents by making their address public. There is no merit to this issue. The computerized data base provided for in MCL 28.728; MSA 4.475(8) specifically does “not include any individual registered solely because he or she had 1 or more dispositions” where he was tried as a juvenile. Thus, although respondent is required to register as a sex offender, the information regarding these juvenile offenses is not available to the public.

Affirmed.

Markey, J., concurred.

1 The difference between the adult and the juvenile systems is nowhere more apparent than in the disposition of the instant case. If respondent had been tried in the adult criminal justice system, it is highly unlikely that he would have received probation for his conviction of first- and second-degree criminal sexual conduct involving a four-year-old child.

2 The alternative proffered by the dissent raises the disturbing specter of a young child demanding a jury trial over the objection of his parents and attorney. We believe this is contrary to the philosophy of the Juvenile Code and are unwilling to engage in such judicial activism.

3 In contrast to the dissent, we believe the underpinning of the Juvenile Code is confidence in the judgment of our trial judges and lawyers.

4 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).