People v. Brown , 205 Mich. App. 503 ( 1994 )

Cavanagh, P.J.

This is a prosecutor’s appeal as of right from the trial court’s decision to sentence both defendants as juveniles. We affirm.

Pursuant to a plea bargain, both defendants pleaded guilty of second-degree murder, MCL 750.317; MSA 28.549, and assault with intent to rob while armed, MCL 750.89; MSA 28.284. At the time of the offense, both defendants were sixteen years old. Following a dispositional hearing, the trial court decided to sentence both defendants as juveniles. The prosecutor appeals from that decision.

On appeal, the prosecutor contends that the trial court erred in sentencing defendants as juveniles because (1) public safety is a factor in sentencing that takes precedence over a juvenile defendant’s potential for rehabilitation and (2) the testimony of certain expert witnesses who recommended juvenile sentencing was not entitled to "great deference.” These arguments are without merit. The case cited by the prosecutor in support of the first argument actually holds that no single statutory criterion (set forth infra) shall be given preeminence over the others. In re LeBlanc, 171 Mich App 405, 411; 430 NW2d 780 (1988). With respect to the second argument, the prosecutor has cited no authority, beyond a law review article that suggests that past conduct is the best predictor of future acts, to support his contention. We are not persuaded that the trial court erred in deferring to the expert witnesses.

We turn now to the basic question whether the trial court erred in sentencing defendants as juveniles. We review a trial court’s findings of fact at a juvenile sentencing hearing for clear error. People v Passeno, 195 Mich App 91, 103; 489 NW2d 152 (1992); MCR 2.613(C). Findings of fact are clearly erroneous if, after review of the entire record, this Court is left with a definite and firm conviction that a mistake has been made. Passeno, supra. The ultimate decision whether to sentence a minor as a juvenile or as an adult is reviewed for an abuse of discretion. Id. at 103-104.

In making its sentencing determination, a court must consider the following criteria:

(a) the juvenile’s prior record and character, physical and mental maturity, and pattern of living;

(b) the seriousness and circumstances of the offense;

(c) whether the offense is part of a repetitive pattern of offenses which would lead to the determination:

(i) that the juvenile is not amenable to treatment, or

(ii) that, despite the juvenile’s potential for treatment, owing to the nature of the delinquent behavior, the juvenile is likely to disrupt the rehabilitation of others in the treatment program owing to the nature of the delinquent behavior;

(d) whether, despite the juvenile’s potential for treatment, the nature of the juvenile’s delinquent behavior is likely to render the juvenile dangerous to the public when released at age 21;

(e) whether the juvenile is more likely to be rehabilitated by the services and facilities available in the adult programs and procedures than in the juvenile programs and procedures; and

(f) what is in the best interests of the public welfare and the protection of the public security. [MCR 6.931(E)(3).]

See also MCL 769.1(3); MSA 28.1072(3). The prosecution has the burden of establishing by a preponderance of the evidence that the best interests of the juvenile and the public would be served by sentencing the juvenile as an adult offender. MCR 6.931(E)(2); Passeno, supra at 102-103.

Our review of the record reveals that the trial court did not clearly err in its factual findings with respect to the statutory criteria, nor did it abuse its discretion in determining to sentence defendants as juveniles. There is no dispute that the offense was an extremely serious one. On the other hand, neither defendant had a prior record of assaultive conduct apart from fighting in school or at the youth home, the offense was not part of a repetitive pattern of behavior, both defendants appeared to be amenable to treatment in the juvenile system and unlikely to disrupt the rehabilitation of others, the expert testimony supported the conclusion that neither defendant was likely to be a danger to the public on his release at age twenty-one, and there was evidence that both defendants were more likely to be rehabilitated in the juvenile system. Compare People v Miller, 199 Mich App 609; 503 NW2d 89 (1993), and People v Haynes, 199 Mich App 593; 502 NW2d 758 (1993) (reversing trial court’s decision to sentence as juveniles codefendants in the same case as the present case, whose prior records and postarrest behavior were considerably more egregious than those of these defendants).

Affirmed.

D. C. Kolenda, J., concurred.