Terry Ray YOUNG, Petitioner, v. The STATE of Oklahoma, Respondent.
No. C-76-358.
Court of Criminal Appeals of Oklahoma.
June 23, 1976.
551 P.2d 1133
As noted in Campbell v. State, supra, a void in our homicide law currently exists with reference to an unpremeditated homicide occurring during a violation of
Therefore, for the above and foregoing reasons, we find this case must be REVERSED AND REMANDED for a new trial in accordance with the views herein expressed.
BRETT, P. J., and BUSSEY, J., concur.
S. M. Fallis, Jr., Dist. Atty., David K. Robertson and J. Pat Thompson, Asst. Dist. Attys., Tulsa County, Tulsa, for respondent.
OPINION
BLISS, Judge:
Petitioner, Terry Ray Young, was convicted upon his plea of guilty in the District Court, Tulsa County, Case No. CRF-75-2699, for the offense of Unauthorized Use of a Motor Vehicle, in violation of
The instant appeal is predicated solely upon the contention that the trial court, at the sentencing hearing, erred in considering a presentence investigation and report1 which contained specific references to the petitioner‘s prior juvenile record. The petitioner contends that consideration of a prior juvenile record is an improper consideration in determining what sentence will be imposed against an adult offender and such a consideration violates the statutory proscription in
“. . . A disposition of any child under this Act, or any evidence given in such cause, shall not in any civil, criminal or other cause or proceeding in any court be lawful or proper evidence against the child for any purpose whatever, except in subsequent cases against the same child under this Act. . . .”
Petitioner alludes to this Court‘s language in Lauen v. State, supra, wherein the Court states:
“. . . They [juvenile records] are not a proper consideration in the assess-
ment of the punishment to be imposed upon defendant. Although the above section of the statute refers to ‘evidence given in such cause,’ it is this Court‘s opinion the language ‘for any purpose whatever’ prohibits the use of these records in an argument. Consequently, the manifestation of a juvenile record influencing an imposed punishment will be grounds for modification.”
Thus at issue is this Court‘s prior construction of
We are compelled to re-examine and ascertain the intent of the legislative enactment,
Many states have statutory provisions comparably worded to
We note that the heretofore quoted portion of the language of
“. . . A disposition of any child under this Act or any evidence given in such cause, shall not in any civil, criminal or other cause or proceedings whatever in any court be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this Act. . . .”
The intent of this particular statutory language obviously was formulated several decades prior to the enactment of the presentence investigation report procedure.5
In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the Supreme Court of the United States stated:
“. . . Highly relevant—if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant‘s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.
* * * * * *
“Under the practice of individualizing punishments, investigational techniques have been given an important role. Probation workers making reports of their investigations have not been trained to prosecute but to aid offenders. Their reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. . . .” (Footnotes omitted)
In People v. McFarlin, supra, the court observed:
“The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society‘s need for protection and its interest in maximizing the offender‘s rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. A judge needs complete information to set a proper individualized sentence. A defendant‘s juvenile court history may reveal a pattern of law-breaking and his response to previous rehabilitative efforts. This, together with information concerning underlying social or family difficulties, and a host of other facts are essential to an informed sentencing decision, especially if the offender is a young adult.
“Some adult offenders may indeed serve longer prison sentences because of information developed from the official juvenile court record. But others, because the presentence report is a complete and reliable chronicle, may serve shorter sentences or not be imprisoned at all. Such differentiation in sentencing predicated on differences in the backgrounds of offenders is contemplated by the indeterminate sentencing and probation acts. The objectives of those acts and of the restriction on the use of a juvenile record are entirely reconcilable.”
Thus, the court concluded that a presentence investigation and report may contain the juvenile history of the adult offender. Also, in Berfield v. State, 458 P.2d 1008 (Alaska 1969), the Alaska court stated:
“A judge, of all persons, should be most cognizant of the existence and meaning of AS 47.10.080(g), and of the fact that under that statute a juvenile offender may not be considered a criminal even though he has suffered a criminal conviction. But the judge cannot simply ignore that phase of appellant‘s life—before he reached 18 years of age—as though it did not exist—particularly when appellant was only 21 years old when sentenced. The judge is not required to operate in a vacuum. In sentencing a 21 year old person, the life, characteristics, and background behavior of that person prior to reaching the age of 18 years might be highly relevant. It should be noted that the judge cannot consider a juvenile offense as a criminal conviction for the purpose of prescribing a mandatory sentence. But that was not done in this case. The judge‘s consideration of factors relating to appellant‘s life, characteristics, background and behavior prior to reaching the age of 18 years does not mean that he considered appellant a criminal or that he was using the juvenile offenses as criminal convictions in determining the sentence to impose.” (Footnotes omitted)
In Walker v. State, Tex.Cr.App., 493 S.W.2d 239 (1973), the Texas Court observed:
“It makes a great deal of sense that the judge should have before him a thorough report of the accused‘s past record and background, when considering his motion for probation. The very purpose of granting probation is to release a convicted defendant who shows himself capable of adhering to certain conditions. The present appellant was 18 years old at the time of trial. The principles just enunciated apply even more so in such a case. It would be ridiculous to conclude that an 18-year-old with a lengthy juvenile record should be granted the same consideration as someone of the same age with a spotless record.”
“. . . There is no proscription against the use of such evidence against a person after he has reached his majority. The obvious purpose of the statute is to protect a child from the stigma of his wrongdoing in his effort to rehabilitate himself. When he is no longer a child and when it is demonstrated by his conviction that he has not rehabilitated himself, there is no longer any reason to preclude the use of the evidence in the juvenile proceedings for the purpose of fixing his sentence. . . .”7
Consistent with our conclusion is the fact that the Legislature has not enacted mandatory expungement statutes. Our current expungement statute,
“Whenever any person who as a minor has been adjudged to be a delinquent child, or a child in need of supervision, by the District Court or the now defunct juvenile, children‘s or county court and is reformed and has been of good behavior since reaching majority, the court may upon expiration of five (5) years after said person attains majority upon its own motion or upon the petition of the probation officer or probation counselor, or said person, either with or without a formal hearing as the court determines, ascertain whether said delinquent, or a child in need of supervision, has been of good behavior since majority.”
A child who having a juvenile record, upon reaching majority, leads a life of good behavior for five years is entitled to have his records expunged and obliterated. However, the court may continue the matter for a period of one year at its discretion. Certainly the retention of juvenile records must serve some purpose and we find one just and appropriate purpose is the use of a prior juvenile record in the sentencing of an adult offender who obviously has not been benefited from society‘s efforts to rehabilitate him.
In conclusion we are of the opinion that the trial court‘s consideration of an adult offender‘s juvenile record should be limited to the “hard-core” legal facts such as the pertinent facts of adjudication, disposition and the rehabilitative history surrounding the disposition.
For all the above and foregoing reasons, we find the trial court did not err in the consideration of the petitioner‘s juvenile record as reflected in the presentence investigation and report and thus the petition for certiorari is DENIED.
BRETT, P. J., specially concurs.
BUSSEY, J., concurs.
BRETT, Presiding Judge (specially concurring).
I concur in the decision reached in the majority‘s opinion. I feel it necessary to emphasize, however, that today‘s holding is limited to the use of defendant‘s juvenile court record in a pre-sentencing report authorized by
I emphasize also that today‘s opinion limits the portions of the juvenile records available to the court to “hard-core legal facts such as the pertinent facts of adjudication, disposition and rehabilitative history surrounding the disposition.” This limitation upon availability is, I believe, wise and necessary because records made of the social and family history of a juvenile offender often describe in some detail the characteristics, habits and life style of his family, friends and associates which information may not be germane to the decision to be made by the court and may constitute an unreasonable invasion of the privacy of those persons.