People v. White

214 N.W.2d 326, 51 Mich. App. 1, 1973 Mich. App. LEXIS 681

Opinions

Fitzgerald, P. J.

Defendant appeals as of right from a jury conviction of armed robbery

* for which he was sentenced to 8 to 20 years imprisonment.

1

At the time of his arrest, defendant was a juvenile charged with five other felony offenses.² A hearing was held to determine whether jurisdiction over the defendant should be waived to the circuit court. A Dr. Mumby offered the only testimony in stating his belief that the defendant could be rehabilitated and that his antisocial conduct was not the result of psychopathy or criminal propensity. Though of the opinion that defendant was of low normal intelligence, Dr. Mumby felt that with extensive personal counseling and vocational training defendant could be rehabilitated. Owing to his unfamiliarity with various rehabilitative facilities available at different correctional institutions, Dr. Mumby was unable to give his opinion as to their suitability for treating defendant. At the conclusion of the hearing, the probate judge ordered that jurisdiction be waived to the circuit court. A jury found defendant guilty of armed robbery and this appeal followed.

Defendant makes three claims of error, all of which are without merit. It is first argued that the statute under which the probate court waived jurisdiction over defendant was unconstitutional in that it failed to provide clear and adequate standards for such waiver. We disagree. MCLA 712A.4; MSA 27.3178(598.4), as amended provides:

"In any case where a child over the age of 15 years is accused of any act the nature of which constitutes a felony, the judge of probate of the county wherein the offense is alleged to have been committed may, after investigation and examination, including notice to the prosecuting attorney, and parents or guardians if addresses are known, and upon the court’s own motion or motion of the prosecuting attorney, waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offense.”

In People v Fields, 388 Mich 66; 199 NW2d 217 (1972), rehearing granted September 1, 1972, the Supreme Court declared this statute unconstitutional because it lacked suitable and ascertainable standards under which to make waiver determinations. The Court ruled that adherence to the criteria set forth in the Juvenile Court Rules of 1969, Rule 11, regarding waiver of jurisdiction was ineffective in curing the constitutional defect of the waiver statute. However, this Court has since decided People v Jackson, 46 Mich App 764; 208 NW2d 526 (1973) which, conceding arguendo the continued validity of Fields, supra, held that waiver of juvenile court jurisdiction pursuant to the General Court Rules is constitutional. Waiver of jurisdiction in the instant case occurred in August of 1971, over two years following adoption of JCR 1969, 11.1. In Fields, the contested waiver of jurisdiction occurred prior to adoption of this rule. The identical disposition was rendered in People v Rubin Williams, 50 Mich App 270; 213 NW2d 307 (1973). We note further that even if MCLA 712A.4; MSA 27.3178(598.4), and the subsequent 1969 amendment were considered unconstitutional and the Jackson court erred in concluding that a general court rule can supply the missing elements of due process which a statute lacks, waiver of jurisdiction in the instant case would automatically follow by virtue of the validation of 1944 PA 54, § 4 which requires mandatory waiver of jurisdiction of 15- and 16-year-old juveniles accused of crimes carrying a maximum penalty of 5 years or more.³

Defendant next contends that waiver of jurisdiction was improper in that the court had no basis for determining whether the interests of defendant and the public would be served by such waiver. It is defendant’s position that because the suitability of rehabilitative programs and facilities available to criminal courts was not known to Dr. Mumby nor presented to the court, the rehabilitative efforts made previously by juvenile authorities should be continued. The people argue that extensive therapeutic efforts under continuous close supervision could not be accomplished in a juvenile facility since the program would terminate with defendant’s 19th birthday, two years after the waiver hearing. JCR 1969, 11.1(B) provides:

"(B) Phase 2: Criteria for Waiver: Upon a showing of probable cause, the court shall proceed to conduct a full investigation to determine whether or not the interests of the child and the public would best be served by granting a waiver of jurisdiction to the criminal court.

"In making such determination, the following criteria shall be considered:

"(1) The prior record and character of the child, his physical and mental maturity, and his pattern of living;

"(2) The seriousness of the offense;

"(3) Even though less serious, if the offense is part of a repetitive pattern of offenses which would lead to a determination that the child may be beyond rehabilitation under the regular statutory juvenile procedure;

"(4) The relative suitability of programs and facilities available to the juvenile and criminal courts for the child;

"(5) Where it is found to be in the best interests of the public welfare and for the protection of the public security, generally, that said juvenile be required to stand trial as an adult offender.”

A review of the Criteria for Waiver convinces us that the probate judge had sufficient evidence from which he could conclude that the best interests of the child and the public would best be served by granting a waiver of jurisdiction to the criminal court. The record discloses that defendant had a long prior record with the juvenile court. The seriousness and repetitive pattern of the various offenses provide compelling evidence that the several rehabilitative efforts conducted under juvenile procedure have been and continue to be unsuccessful. Nor can we presume that Dr. Mumby’s unfamiliarity with the programs and facilities available to criminal courts prevented the court from properly waiving jurisdiction. The trial court took judicial notice of available rehabilitative facilities, being intimately familiar with them through his long exposure on the bench. The finding that jurisdiction should be waived was not clearly erroneous.

The final issue contests the use of prior juvenile conviction at sentencing. The Supreme Court has ruled in People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973), that it is permissible to refer to a defendant’s juvenile record in imposing sentence.

Affirmed.

T. M. Burns, J., concurred.

Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

1 MCLA 750.529; MSA 28.797.

2 Breaking and entering an occupied dwelling, MCLA 750.110; MSA 28.305.

Assault with intent to rob and steal while armed, MCLA 750.89; MSA 28.284.

Assault with intent to do great bodily harm less than murder, MCLA 750.84; MSA 28.279.

Assault with intent to rape, MCLA 750.85; MSA 28.280.

Armed robbery, MCLA 750.529; MSA 28.797.

3 Defendant was convicted of armed robbery which imposes a maximum sentence of life imprisonment. By adopting plaintiffs position that MCLA 712A.4; MSA 27.3178(598.4) is unconstitutional, it will be treated as a nullity and the law would remain as it was prior to the unsuccessful attempt to amend. People v Smith, 246 Mich 393; 224 NW 402 (1929).