People v. Covington , 144 Mich. App. 652 ( 1985 )

144 Mich. App. 652 (1985) 376 N.W.2d 178

PEOPLE
v.
COVINGTON

Docket No. 80826.

Michigan Court of Appeals.

Decided August 5, 1985.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, G. Michael Hocking, Prosecuting Attorney, and K. Davison Hunter, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Karla K. Goodman), for defendant.

Before: T.M. BURNS, P.J., and ALLEN and M.J. TALBOT,^[*] JJ.

M.J. TALBOT, J.

Defendant appeals as of right from his plea-based conviction of uttering and publishing, MCL 750.249; MSA 28.446. He was sentenced to from 9 to 14 years' imprisonment. Defendant was also charged in a supplemental information with being a fifth-felony offender, and pursuant to a plea bargain, he pled guilty to the uttering and publishing count in return for dismissal of the supplemental information. Defendant raises two issues on appeal: Whether the case must be remanded to the trial court for a hearing to determine if the court relied on several juvenile adjudications and misdemeanor convictions at which defendant did not have the benefit of counsel and whether the trial court abused its discretion in imposing a sentence which should shock the conscience of this Court.

The presentence report in this case lists numerous entries under the heading "Previous Criminal History: Juvenile:". By affidavit filed in this Court, defendant states that to the best of his recollection he was neither represented by nor waived counsel at any of his juvenile court appearances. Suffice it to say that the presentence report discloses that defendant was made a ward of the state and committed to Camp Highfields from 1968 to 1971 based on juvenile adjudications including larceny in a building, unlawfully driving away an automobile, glue sniffing, larceny from an automobile and breaking and entering.

Defendant would have this Court accept the position that a "juvenile conviction" without counsel is as constitutionally infirm as its adult counterpart and should, therefore, not be considered in sentencing. Defendant relies on Kent v United States, 383 U.S. 541; 86 S. Ct. 1045; 16 L. Ed. 2d 84 (1966), and People v Carmouche, 112 Mich. App. 325; 315 NW2d 924 (1982). In Kent, the United States Supreme Court in addressing the question of waiver of jurisdiction from juvenile to adult court did hold that assistance of counsel in the "critically important" determination of waiver is essential to the proper administration of juvenile proceedings. 383 U.S. 553. Justice Fortas for the majority also went on to say that:

"This concern, however, does not induce us in this case to accept the invitation to rule that constitutional guaranties which would be applicable to adults charged with the serious offenses for which Kent was tried must be applied in juvenile court proceedings concerned with allegations of law violation." 383 U.S. 556. (Footnote omitted.)

People v Carmouche, supra, was simply remanded, based on agreement of the prosecutor, to determine whether the sentencing judge considered constitutionally infirm juvenile convictions. To the extent that Carmouche refers to "juvenile convictions", it incorrectly states the law. A juvenile is subject to an adjudication of whether his conduct brings him within the jurisdiction of the probate court; there is no such thing as a "juvenile conviction". As to the agreed upon constitutional infirmity that might have existed, Carmouche does not state what the infirmity is. We do hold that a juvenile adjudication without counsel is not per se constitutionally infirm. Thus, the adjudications contained in defendant's presentence report, even if his affidavit is accepted, were permissibly considered by the sentencing judge.

Defendant further requests a remand for a hearing in compliance with United States v Tucker, 404 U.S. 443; 92 S. Ct. 589; 30 L. Ed. 2d 592 (1972), and People v Moore, 391 Mich. 426; 216 NW2d 770 (1974), in relation to four misdemeanor convictions appearing in the presentence report heading "Previous Criminal History: Adult:". The four misdemeanors were, specifically:

8/23/71, Lansing, glue sniffing;

3/6/80, Lansing, two counts of assault and battery;

2/22/81, Lansing, glue sniffing and disorderly;

3/19/81, Lansing, glue sniffing and disorderly.

The presentence report notes these convictions were obtained where defendant was not represented by counsel. The presentence report also sets forth the following adult entries (convictions not in dispute on appeal):

12/22/71, Lansing, B & E, 3 years probation, 1st 8 months jail;

12/29/72, Lansing, Violation Probation, 2-1/2 to 10 yrs, SPSM;

12/29/72, Lansing, B & E, 2-1/2 to 10 yrs SPSM;

2/9/75, Lansing, B & E, 4 to 10 yrs SPSM;

2/9/75, Lansing, Att. R & C 0/$100, 1 yr 8 mos to 2-1/2 yrs SPSM;

1/26/77, Prison Escape, 9 mos to 5 yrs;

11/3/78, Paroled to Lansing;

4/18/80, Returned as parole violator;

9/23/80, Paroled to Lansing;

10/24/80, Lansing, Entry W/O Permission, 90 days;

8/24/81, Lansing, Larceny Building, 300 days;

3/23/83, Discharge Parole;

6/28/83, Lansing, U & P Instant Offense.

It should be noted that at sentencing both defendant and his counsel acknowledged that they had reviewed the presentence report and found it factually correct. Moreover, defense counsel elaborated on the question of defendant's abuse of controlled substances and stated that defendant had successfully completed programs which had resulted in his being free from the problem since parole in March, 1983. It should also be understood that presentence reports are not governed by the rules of evidence.

We find that it was proper for the writer of the presentence report to include defendant's misdemeanor convictions as a reflection on defendant's "antecedents, character, and circumstances". MCL 771.14(1); MSA 28.1144(1). Defendant had the opportunity not only to challenge the accuracy of the report but also was permitted to give the court additional facts to clarify and explain his substance abuse problem. What this Court must ultimately determine is whether under People v Moore, supra, p 437, the sentence "might have been different" if these misdemeanor convictions had not been before the sentencing judge.

In Tucker and Moore, the records showed that the trial judges gave specific consideration to the challenged invalid convictions. Here, the record is just the opposite. We see no reason to remand for a Tucker hearing only to have the trial judge ask rhetorically, "Do they really think I cared about those little misdemeanors or that the sentence might have been different without them?". Applying the "might have been different" standard, we see no reason to remand.

Defendant also requests review of his sentence on the basis of People v Coles, 417 Mich. 523; 339 NW2d 440 (1983). At sentencing the trial judge reviewed defendant's prior criminal record. Defendant was age 29 at the time of sentencing. The court noted: "You have a record, Mr. Covington, that is such that this Court does not believe that society should have to be subjected to anymore of this". We agree. Under these circumstances we cannot say that the sentence was cruel and unusual under either the United States or Michigan Constitution. After reading the presentence report, we cannot say that the sentence shocks our conscience. Cf. People v Landis, 139 Mich. App. 120; 361 NW2d 748 (1984). In deference to the dissent in Landis, supra, p 123, we believe that even a conscience "rendered insipid from overexposure to multitudes of lesser penalties for violent and heinous crimes" would agree that in this defendant's case, enough is enough! Defendant's number was up and it was 9 — as in 9 to 14 years.

Affirmed.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.