PEOPLE v. VELING
PEOPLE v. HILL
Docket Nos. 93321, 93406
Supreme Court of Michigan
July 13, 1993
443 Mich. 23
BRICKLEY, J.
Benjamin T. Veling, aged fifteen, was charged as an adult in the Oakland Circuit Court, pursuant to
William D. Hill, aged sixteen, was charged in the Jackson Circuit Court as an adult, pursuant to the automatic waiver statute, with assault with intent to commit murder, carrying a concealed weapon, carrying a concealed weapon with unlawful intent, three counts of possession of a firearm during the commission of a felony, and possession of cocaine. The court, Gordon W. Britten, J., granted the defendant‘s motion to quash all but the assault charge on the ground that the court lacked jurisdiction over the other charges. The Court of Appeals, DOCTOROFF, P.J., and MARILYN J. KELLY and JANSEN, JJ., denied leave to appeal (Docket No. 147853). The people seek interlocutory leave to appeal.
In an opinion by Justice BRICKLEY, joined by Chief Justice CAVANAGH, and Justices BOYLE, RILEY, GRIFFIN, and MALLETT, the Supreme Court held:
Circuit courts have jurisdiction to sentence juveniles charged with enumerated offenses, but convicted of nonenumerated lesser included offenses, and to try and sentence juveniles charged with both enumerated and nonenumerated offenses arising out of the same criminal transaction.
1. The automatic waiver statute,
2. Where a circuit court acquires jurisdiction of a defendant because of a felony charge, its jurisdiction is not lost because of a subsequent conviction of a lesser included misdemeanor. It would be absurd to force a court to try a case on the merits only to determine at the outcome whether it had jurisdiction to try the case in the first place. Providing circuit courts with jurisdiction to convict a juvenile of nonenumerated offenses arising out of charged enumerated offenses and of same transaction offenses even though the circuit court had original jurisdiction over only some of the offenses, provides the greatest flexibility in dealing with juvenile offenders.
3. Evidence adduced at trial determines the duty to instruct regarding lesser included offenses. If the evidence presented would support a conviction of a lesser included offense, it is error requiring reversal to refuse to give a requested instruction. Moreover, if the lesser offense is one that is necessarily included in the charged offense, the evidence always supports the lesser offense if it supports the greater.
4. To avoid double jeopardy, all charges against a defendant that arise out of a single criminal act, occurrence, episode, or transaction must be brought in one prosecution. Logic suggests that the Legislature did not intend to create inconsistency between the automatic waiver statute and double jeopardy protection. Rather, because the Legislature intended to treat juvenile offenders who engage in serious criminal activity more harshly and more like adults, it is to be assumed that it intended to treat juveniles like adults for all crimes arising out of enumerated criminal activity.
5. In Hill, the order to quash the nonenumerated counts must be vacated and the case remanded to the circuit court for trial of all charges.
6. In Veling, the order to remand to the probate court for disposition must be vacated and the court ordered to conduct a hearing to determine if the best interests of the defendant and the public would be served by remanding the case to the probate court for disposition or by sentencing him as an adult.
Hill, order vacated.
Justice LEVIN, concurring in part and dissenting in part, stated that the circuit court in Hill lacked jurisdiction to convict the defendant of the lesser included offense. Jurisdiction over juveniles, superior to that of any other court, is expressly and exclusively vested in the juvenile division of the probate court by
People v Deans, 192 Mich App 327; 480 NW2d 334 (1991), overruled in part.
People v Spearman, 195 Mich App 434; 491 NW2d 606 (1992), overruled in part.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Michael J. Modelski, Chief, Appellate Division, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people in Veling.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Joe Filip, Prosecuting Attorney, and Jerrold Schrotenboer, Chief, Appellate Division, for the people in Hill.
William E. Ziem for defendant Veling.
Mazur, Matyjaszek & Brandt, P.C. (by Alfred P. Brandt), for defendant Hill.
OPINION OF THE COURT
BRICKLEY, J. In 1988, the Michigan Legislature passed a package of laws that modified the manner in which courts treat the jurisdiction, adjudication, and treatment or punishment of juvenile offenders.
In these cases of first impression, we are asked whether the automatic waiver statute allows a circuit court to retain jurisdiction to sentence a juvenile offender who, although charged with an enumerated offense, is convicted of a nonenumerated lesser included offense. Additionally, we are asked whether the statute confers jurisdiction on the circuit courts to try juvenile offenders for nonenumerated offenses arising out of the same criminal transaction as the enumerated offense in the same trial.
Our task is not made easier by the lack of clear legislative history available. All that can be reasonably gleaned from the statute itself is the notion that the Legislature must have intended to treat juvenile offenders who engage in serious criminal activity more harshly by providing adult penalties for certain crimes. For the reasons that follow, we hold that the circuit courts have jurisdiction to sentence juveniles charged with enumerated offenses but convicted of nonenumerated lesser included offenses and to try and sentence juveniles charged with both enumerated and nonenumerated offenses arising out of the same criminal transaction.
A. PEOPLE v VELING
Defendant Benjamin Todd Veling was originally charged with assault with intent to commit murder.3 Pursuant to the automatic waiver statute, defendant was tried as an adult in circuit court, although at the time of the alleged offense he was only fifteen years old. At trial, defendant was found guilty of the lesser included offense of assault with intent to do great bodily harm less than murder.
After trial, defendant moved to remand his case to the probate court for disposition on the ground that his conviction for the lesser included offense divested the circuit court of its jurisdiction. Because assault with intent to do great bodily harm less than murder is not an offense enumerated in the automatic waiver statute, defendant contended, the circuit court had no jurisdiction to sentence him for that offense.4 The prosecutor countered that jurisdiction was not lost as a result of a conviction of a lesser included offense because the circuit judge had authority under the Criminal Procedure Code to conduct a hearing to determine whether defendant should be sentenced as an adult or juvenile.5
B. PEOPLE v HILL
As a result of events that allegedly occurred on October 15, 1991, defendant William Depree Hill was charged by a seven-count information with assault with intent to murder6 (count I), carrying a concealed weapon,7 carrying a concealed weapon with unlawful intent,8 three counts of possession of a firearm during the commission of a felony,9 and possession of cocaine10 (counts II to VII). At the time of these alleged crimes, defendant was sixteen years old.
The Jackson County prosecutor elected to charge defendant under Michigan‘s automatic waiver statute. At the preliminary examination on October 24, 1991, defendant was bound over on all charges. Afterward, defendant filed a motion to dismiss counts II to VII on the ground that the circuit court lacked subject matter jurisdiction to
On December 17, 1991, the circuit judge granted defendant‘s motion and quashed that part of the information charging him with counts II to VII on the ground that, of the crimes charged, the automatic waiver statute only applied to count I and so the court lacked jurisdiction over counts II to VII. Furthermore, the court noted that the prosecutor‘s proper course of action would have been to utilize the automatic waiver statute for count I and seek a traditional waiver for counts II to VII. Finally, the circuit judge adjourned the proceedings to allow the prosecutor to seek an interlocutory appeal.
The prosecutor sought the Court of Appeals review, but, relying on Deans, supra, the Court denied leave to appeal. On August 7, 1992, however, this Court granted the prosecutor‘s motion for interlocutory leave to appeal and the case was considered with that of defendant Veling. 440 Mich 889.
II
Before the enactment of the automatic waiver statute, the juvenile division of the probate court had “[e]xclusive original jurisdiction superior to and regardless of the jurisdiction of any other court in proceedings concerning a child under 17 years of age. . . .”
Once personal jurisdiction is established, the magistrate must have probable cause to believe, as part of the preliminary examination, that the juvenile committed the charged enumerated offense. See
III
As noted above, the Code of Criminal Procedure is very specific; if at the preliminary examination the magistrate finds that an enumerated offense has not been committed, the magistrate must send the case back to the probate court. The code is noticeably silent, however, concerning the proper procedure following a conviction for a lesser included offense or the procedure to be used for juveniles charged with nonenumerated offenses arising out of the same transaction as the enumerated offense. Defendants Veling and Hill would have us construe this silence as a requirement to remand these cases to the probate court for disposition. For the reasons that follow, we find such a statutory construction to be untenable.
A
In the exercise of circuit court jurisdiction over adult offenders, there is a presumption against divesting a court of its jurisdiction once it has properly attached, and any doubt is resolved in favor of retaining jurisdiction.13 In People v Schoeneth, 44 Mich 489; 7 NW 70 (1880), this Court established the longstanding rule that where the circuit court acquires jurisdiction over a defendant
B
Similarly, Michigan courts extend circuit court jurisdiction to all same transaction offenses an adult is alleged to have committed, even though the circuit court had original jurisdiction over only some of the offenses. For example, where an adult is charged with a felony and a misdemeanor, the circuit court has jurisdiction to dispose of the entire case, even though a circuit court has no jurisdiction over misdemeanor charges alone. The defendant in People v Loukas, 104 Mich App 204; 304 NW2d 532 (1981), was initially charged in circuit court with a felony, resisting arrest, and a misdemeanor, reckless driving (later changed to careless driving). The defendant pleaded nolo contendere to both charges, and the case proceeded to sentencing. At sentencing, the defendant argued that the circuit court could not sentence him for the misdemeanor conviction because it lacked ju-
The defendant in People v Shackelford, 146 Mich App 330; 379 NW2d 487 (1985), was tried in the circuit court for a misdemeanor charge of possession of marijuana. Jurisdiction was conferred on the circuit court because the defendant initially was charged as a second offender, a felony. After trial, however, the prosecutor moved to dismiss the second-offender charge. With only the misdemeanor conviction remaining, the defendant argued that the circuit court had no jurisdiction to pass sentence. Id. at 332-333. The Court of Appeals rejected this argument, however, on the ground that to the extent both charges were properly brought, the circuit court had jurisdiction to try both counts because they arose out of a single transaction. Id. at 333.
Finally, People v Carey, 110 Mich App 187; 312 NW2d 205 (1981), involved a defendant charged with crimes that allegedly occurred both within and outside the Detroit city limits. The defendant was tried in the Detroit Recorder‘s Court for all charges, but was found guilty only of rape, the charge that allegedly occurred outside the city limits. The defendant argued that the Detroit Recorder‘s Court had no jurisdiction to try him for the rape charge, because he was acquitted of the
C
While common law is the primary source of the duty to instruct regarding lesser included offenses, there is a statute that implicitly requires such instructions be given. Section 32 of the Code of Criminal Procedure provides:
Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense. [
MCL 768.32(1) ;MSA 28.1055(1) . Emphasis added.]
If the factfinder in a criminal case must be allowed to convict a defendant of a lesser included offense, it stands to reason the factfinder must be made aware of what lesser included offenses exist.
Michigan jurisprudence has established that the evidence adduced at trial determines the trial
Michigan‘s statutory and interpretive case law concerning lesser included offenses require that instruction regarding such offenses be given in cases like those before us. We assume that the Legislature was aware of these mandates when enacting the automatic waiver statute15 and simple logic suggests that it did not intend to create an anomaly between the automatic waiver statute and jury instruction mandates.
D
With respect to constitutional mandates, this Court, in People v White, 390 Mich 245; 212 NW2d 222 (1973), held that all charges against a defendant that arise out of a single criminal act, occurrence, episode, or transaction must be brought in one prosecution. This requirement, the Court held, provided “the only meaningful approach to the constitutional protection against being placed twice in jeopardy” where the crimes were committed in a continuous time sequence and displayed a single intent and goal. Id. at 257-258.
Similarly, other states allow their adult trial
[t]o rule otherwise would be to bisect criminal conduct artificially and require the state to follow two procedures with no substantive meaning other than to satisfy procedural requirements, with the end result that the case involving the lesser crime would be instituted in juvenile court and transferred to the superior court, and the juvenile would still be tried for the lesser crime along with the crime giving the [trial] court concurrent jurisdiction. There is no loss of substantive protection of the juvenile, and the public‘s rights should not be impeded by meaningless procedural steps which delay the judicial process and conceivably could lead to the frustration of justice under the rigorous requirements of the double jeopardy clause. [Id. at 662. Citation omitted.]
In other words, to guard against double jeopardy, the supreme court allowed the trial court to hear all charges arising out of the same criminal transaction. In doing so, the court was willing to forego the artificial procedural requirements that otherwise would have required the defendant to be tried separately on the capital and lesser offenses.16
E
Giving the circuit court jurisdiction to hear both enumerated and nonenumerated offenses avoids an anomalous result that would work to a juvenile defendant‘s disadvantage. As the prosecutor in defendant Hill‘s case pointed out, under the automatic waiver statute, upon a guilty plea or conviction, the circuit judge has the option of sentencing the juvenile or remanding the case to the probate court for disposition.18 Under traditional waiver hearing procedures, however, once a juvenile is tried as an adult, he must be sentenced as an adult—the circuit judge has no discretion in this respect.19 As a result, a juvenile defendant is likely to receive a tougher sentence where the prosecutor uses the automatic waiver statute for an enumerated offense and the traditional waiver system for nonenumerated offenses. If a circuit judge must sentence a juvenile, for example, as an adult for felony-firearm (a nonenumerated offense involving a two-year mandatory prison term), he is more likely to sentence the juvenile as an adult for the underlying felony, for example, assault with intent to commit murder (an enumerated offense). If, however, the judge had sentencing discretion with respect to both the assault and the felony-firearm
IV
On the basis of this analysis, we are convinced that the Legislature did not intend by its silence in the automatic waiver statute to require the bifurcation of lesser included and same transaction offenses. We find that the Legislature intended juveniles automatically waived to be treated consistently with the parallel scheme presently in effect for adults. We are not alone in our conclusion and find satisfaction in knowing that many states treat juveniles in a similar manner.21
Our conclusions in these cases implicate the Court of Appeals decision in People v Deans, supra. The Deans Court considered the issues raised by both defendants here. It held that the circuit court did not have jurisdiction to try a defendant for nonenumerated offenses arising out of the same transaction as the enumerated offense. 192 Mich App 330. The Court reasoned that the statute was clear and unambiguous; the enumeration
While we agree with the second conclusion of the Deans Court, we cannot agree with its first. The conclusion regarding the same transaction offenses completely ignores the parallel treatment of adult offenders in circuit court and the policy support for retaining circuit court jurisdiction over juvenile offenders.23 To the extent the Deans decision and its progeny contradict the decisions we make, they must be overruled. That portion of the Deans opinion relating to the lesser included offense issue is entirely consistent with the decisions we make, and, thus, need not be disturbed.
VI
For the reasons set forth above, we conclude that the circuit courts have jurisdiction to sentence juveniles charged with enumerated offenses, but convicted of nonenumerated lesser included offenses, and to try and sentence juveniles charged with both enumerated and nonenumerated offen-
CAVANAGH, C.J., and BOYLE, RILEY, GRIFFIN, and MALLETT, JJ., concurred with BRICKLEY, J.
LEVIN, J. I concur in People v Veling and dissent in People v Hill for the reasons stated by the Court of Appeals in People v Deans, 192 Mich App 327; 480 NW2d 334 (1991), where the defendant, a juvenile, was charged with assault with intent to murder and other offenses, including possession of cocaine and felony-firearm.
The defendant in Deans had been automatically waived to the circuit court on assault with intent to murder. The Court of Appeals held that the circuit court did not have jurisdiction to try the possession of cocaine and felony-firearm charges. The gist of its reasoning and holding is stated in the syllabus prepared by the reporter of decisions:
The circuit court did not have jurisdiction to try
the defendant on the charges of cocaine possession and felony-firearm, and those convictions must be vacated. Jurisdiction over juveniles, superior to that of any other court, is expressly and exclusively vested in the juvenile division of the probate court by
MCL 712A.2 ;MSA 27.3178(598.2) , subject to exceptions enumerated inMCL 600.606 ;MSA 27A.606 , granting the circuit court jurisdiction to determine violations of certain offenses committed by juveniles. Cocaine possession and felony-firearm are not among the enumerated exceptions. Once a juvenile is charged with an enumerated felony, the probate court‘s jurisdiction is not automatically waived for all other felonies under a theory of pendent or ancillary jurisdiction in the circuit court, and the prosecutor must initiate probate court waiver proceedings in order to charge a juvenile defendant with nonenumerated felonies in the circuit court. [Id., pp 327-328.]
The reasoning and holding in Deans on the issues presented in Veling parallels the reasoning and holding of the majority in Veling.
Notes
The circuit court shall have jurisdiction to hear and determine a violation of section 83, 89, 91, 316, 317, 520b, or 529 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, and 750.529 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. [MCL 600.606; MSA 27A.606.]
In other words, a prosecuting attorney can proceed directly in the circuit court without having to request a waiver hearing against a juvenile aged fifteen or sixteen charged with committing the following crimes:- Assault with intent to murder (MCL 750.83; MSA 28,278).
- Assault with intent to commit armed robbery (MCL 750.89; MSA 28.284).
- Attempted murder (MCL 750.91; MSA 28.286).
- First-degree murder (MCL 750.316; MSA 28.548).
- Second-degree murder (MCL 750.317; MSA 28.549).
- First-degree criminal sexual conduct (MCL 750.520b; MSA 28.788[2]).
- Armed robbery (MCL 750.529; MSA 28.797).
- Delivery of a controlled substance (MCL 333.7401; MSA 14.15[7401]).
- Possession of a controlled substance (MCL 333.7403; MSA 14.15[7403]).
With the advent of the automatic waiver statute, this provision is no longer the exclusive means by which a prosecutor can try a juvenile in adult circuit court.If a child who has attained the age of 15 years is accused of an act which, if committed by an adult, would be a felony, the judge of probate of the county where the offense is alleged to have been committed may waive jurisdiction pursuant to this section upon motion of the prosecuting attorney. After waiver, it shall be lawful to try the child in the court having general criminal jurisdiction of the offense. [MCL 712A.4(1); MSA 27.3178(598.4)(1).]
If at the conclusion of the preliminary examination of a juvenile the magistrate finds that a violation of [certain enumerated offenses], did not occur or that there is not probable cause to believe that the juvenile committed the violation, but that there is probable cause to believe that some other offense occurred and that the juvenile committed that other offense, the magistrate shall transfer the case to the juvenile division of the probate court of the county where the offense is alleged to have been committed.
See also State v Garcia, 93 NM 51, 53-54; 596 P2d 264 (1979), in which the New Mexico Supreme Court used the same rationale to hold that if a juvenile court finds at a traditional waiver hearing that a juvenile defendant should be prosecuted as an adult, the adult court obtains jurisdiction over the juvenile‘s entire case.[t]o require treatment of the same criminal episode partially in Juvenile Court and partially in adult court would serve no beneficial purposes believed to be derived from the creation of a system of juvenile courts. To permit fragmentation of the criminal transaction invites many possible problems, such as in sentencing, or with collateral estoppel, double jeopardy and merger. Fragmentation is also wasteful of prosecutorial, defense and judicial resources. [In re RLP, 159 NJ Super 267, 272; 387 A2d 1223 (1978).]
it is unrealistic to believe that a youthful offender who the court determines cannot profit from the care, guidance and control aspects of a juvenile proceeding on the murder charge . . . would be amenable to such care, guidance and control on the non-murder charges arising from the same criminal transaction. [Id. at 138.]
Similarly, once an adult court has obtained jurisdiction over a juvenile defendant by means of a traditional waiver hearing, it has been held that court retains jurisdiction to sentence the defendant when there has been a plea of guilty or conviction of a lesser included offense, even if that offense was not considered at the waiver hearing. People v Jimmie Smith, 35 Mich App 597; 192 NW2d 666 (1971) (the Court affirmed the defendant‘s conviction of unarmed robbery, even though the waiver hearing referred only to armed robbery). See also Iglesias v State, 599 So 2d 248 (Fla App, 1992); State v Hamilton, 285 SC 133; 328 SE2d 633 (1985); Dicus v Second Judicial Dist Court, 97 Nev 273; 625 P2d 1175 (1981); Gray v State, 6 Md App 677; 253 A2d 395 (1969) (all these courts holding that when an adult court acquires jurisdiction in prosecution of an offense from a juvenile court, the adult court maintains jurisdiction to convict the defendant of the charged crime and any lesser included offenses).