Opinion
No. 348258
04-30-2020
In re ZAYQUAN LAQUIN NICHOLS O'NEAL, Minor. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellee, v. ZAYQUAN LAQUIN NICHOLS-O'NEAL, Respondent-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kalamazoo Circuit Court Family Division
LC No. 2018-000363-DJ Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ. PER CURIAM.
Respondent appeals by right the trial court's determination that he violated probation, and the resulting sentence. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Respondent, a juvenile, was arrested and charged with multiple felonies. The prosecution filed a petition with the family division of the trial court designating respondent's case to be tried in the same manner as an adult. See MCL 712A.2d(1) , (9)(a), (9)(b)(i). Respondent ultimately pleaded guilty to armed robbery, felony-firearm, and assault with intent to do great bodily harm less than murder.
MCL 712A.2d(1) permits the prosecution to designate a juvenile's case as one to be tried in the same manner as an adult if the juvenile has committed a "specified juvenile violation." These violations include armed robbery, see MCL 712A.2d(9)(a), and assaultive offenses while armed with a dangerous weapon, see MCL 712A.2d(9)(b).
The trial court sentenced respondent at that time to a "blended sentence": it imposed prison terms of 225 months to 25 years for the armed robbery conviction and 78 months to 10 years for the assault conviction, both to be served subsequent to a two-year felony-firearm sentence. But it held those sentences in abeyance and placed respondent on probation until he reached the age of 21, stating that if respondent successfully completed probation, he would not have to serve his adult prison sentence. The trial court noted that respondent would continue to be held at Kalamazoo County Juvenile Home until the plan for his release was finalized.
However, hours after respondent's sentencing hearing, respondent engaged in an altercation with another resident of the juvenile home. At his probation violation hearing, respondent admitted that he "tried to fight" the other resident and that both of them were "swinging" at each other, although he denied making physical contact. The trial court held that respondent had violated the terms of his probation and it accordingly imposed his delayed adult sentence. This appeal followed.
II. DUE PROCESS
Respondent argues that the trial court violated his right to due process of law when his preliminary examination was conducted in his mother's absence. We disagree. Because respondent did not raise this issue before the trial court, it is unpreserved; we review an unpreserved issue of constitutional law for plain error. See In re Ferranti, 504 Mich 1, 14; 934 NW2d 610 (2019); People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). We review de novo questions of statutory interpretation. We also review de novo questions of law. In re Juvenile Commitment Costs, 240 Mich App 420, 426; 613 NW2d 348 (2000).
The United States and Michigan Constitutions provide that no state shall deprive any person of life, liberty, or property, without due process of law. See US Const, Am XIV, Const 1963, art 1, § 17. To succeed on a due-process argument, a respondent must show that he was deprived "of a protected liberty or property interest." In re Wentworth, 251 Mich App 560, 563; 651 NW2d 773 (2002). In juvenile proceedings, a juvenile respondent has a right "to appropriate notice, to counsel, to confrontation and cross-examination, to a privilege against self-incrimination, and to a standard of proof beyond a reasonable doubt" in order to ensure "fundamental fairness." In re Whittaker, 239 Mich App 26, 28; 607 NW2d 387 (1999) (quotation marks and citation omitted). To that end, MCR 3.921(A)(1)(a) provides that juveniles are entitled to notice of each hearing that occurs during their delinquency proceedings. Additionally, MCR 3.921(A)(1)(b) provides that "the custodial parents, guardian, or legal custodian of the juvenile" must also be notified of each hearing in the delinquency proceedings. MCR 3.920(F) permits a party entitled to notice in a juvenile proceeding to waive the right to that notice.
Respondent's preliminary examination took place over a two-day period, on August 17, 2018 and August 22, 2018. His mother was not present on either day of the preliminary examination. On the second day, respondent's probation officer stated that she had spoken to respondent's mother "on several occasions throughout [respondent's] proceedings," and that the mother had "indicat[ed] that she had [a] mandatory work meeting" preventing her from attending on that day; it is not clear from the record whether this conflict had also prevented respondent's mother from attending on the first day of the preliminary examination. The probation officer's statement at least suggests that respondent's mother had notice of the preliminary examination; moreover, the record contains a proof of service indicating that respondent's mother was served by mail with a copy of the trial court's order following respondent's arraignment; that order states the date and time of the preliminary examination. In any event, at respondent's subsequent pretrial hearing on September 19, 2018, respondent's mother retroactively waived her right to notice of respondent's preliminary examination. Respondent's counsel told the trial court that he had "explained the situation to the mother," and "she was very clear that she does not feel any prejudice from going forward today and she willingly and voluntarily signed the waiver." Defense counsel also stated that respondent's mother "underst[ood] the reason for [the waiver]."
The written waiver set forth the dates of the preliminary examination at the top of the form, which acknowledged that respondent's mother had received a copy of the petition, explained various rights possessed by her and respondent, and stated in relevant part: "I acknowledge this notice and my right to receive a summons or written notice of hearing. I knowingly, voluntarily, and understandingly waive [x] service of summons [x] further legal notice of this hearing."
Respondent does not point to any liberty or property interest that he was deprived of during his delinquency proceedings. See Wentworth, 251 Mich App at 563. Respondent's mother retroactively waived her right to notice of the preliminary examination at the September 19, 2018 pretrial hearing. Respondent's mother was entitled to notice, and she was entitled to waive it. See MCR 3.921(A)(1)(b); MCR 3.920(F). MCR 3.920(F) does not condition a parent's waiver on the approval of a juvenile respondent. The notice was the mother's notice to receive and to waive. Respondent was only entitled to receive and waive his own notice. See MCR 3.921(A)(1)(a).
Further, although respondent argues that he was denied due process by his mother not being present to advise him at his preliminary examination, he provides no authority in support of that argument. The mere fact that his mother was entitled to notice of the proceeding does not compel that conclusion. Obviously, adults in criminal trials have no such right, and respondent has not identified any caselaw, court rule, or section of the Juvenile Code that gives him such a right in a designated case tried "in the same manner as an adult." MCL 712A.2d(1). Respondent's preliminary examination took place less than two weeks before his seventeenth birthday. Respondent was represented by counsel, and his probation officer indicated that she had on several occasions been in contact with his mother about the case. Under these circumstances, we believe that respondent's right to fundamental fairness was not violated. Whittaker, 239 Mich App at 28. Respondent has failed to establish plain error. See Carines, 460 Mich at 763-764.
III. PROBATION VIOLATION
Respondent also argues that the trial court erred by finding that he had violated the conditions of his probation, because the probation had not yet taken effect. We disagree. Although respondent pleaded not guilty to the probation violation charge, he did not raise this argument before the trial court, and it is therefore unpreserved and we review it for plain error. See Carines, 460 Mich at 763-764.
When a trial court sentences a juvenile as an adult, "the trial court may, in its discretion, enter an order delaying imposition of" the juvenile's sentence. MCR 3.955(D). The trial court also has the discretion to "plac[e] the juvenile on probation on such terms and conditions as it considers appropriate, including ordering any disposition under MCL 712A.18." Id. MCL 712A.18(1)(e) permits the trial court to "commit the juvenile to a public institution, county facility, institution operated as an agency of the court or county, or agency authorized by law to receive juveniles of similar age, sex, and characteristics." Additionally, "[i]f a juvenile placed on probation under an order of disposition delaying imposition of sentence is found by the court to have violated probation," the trial court may impose the adult delayed sentence on the juvenile. MCR 3.956(B)(2).
In this case, the trial court agreed to hold respondent's adult sentence in abeyance, and indicated that if respondent successfully completed probation, he would not serve any time in prison. Respondent and his mother signed the Rules of Probation document, and the trial court read the rules to them. The trial court told respondent that his probation started immediately, and the rules of probation stated that respondent could "not engage in assaultive, abusive, threatening, or intimidating behaviors." Respondent was given a written order stating that he was placed on probation as of the date of the order. The order also stated that his placement at the juvenile home would continue until his release was approved by the court. Respondent was then returned to the Kalamazoo County Juvenile Home and, within a few hours of his sentencing, argued with and attempted to strike another resident.
Although respondent argues that he was not on probation when housed in the juvenile home, this argument is without merit. The trial court properly entered an order of disposition at respondent's original sentencing hearing that delayed the imposition of his adult incarceration sentence. See MCR 3.955(D). The trial court then properly placed respondent on juvenile probation "on such terms and conditions as it consider[ed] appropriate . . . ." Id.; see also Juvenile Commitment Costs, 240 Mich App at 430 (recognizing that the trial court may place a juvenile on probation and commit him to an institution); People v Haynes, 199 Mich App 593, 605; 502 NW2d 758 (1993) (recognizing that the respondent was sentenced to juvenile probation and committed to an institution until the age of 21).
Respondent posits that MCL 712A.18(1)(b) defines probation as "being '. . . under supervision in the juvenile's own home or in the home of an adult who is related to the juvenile.' " To the contrary, that statutory provision distinguishes probation from supervision, authorizing a trial court to "[p]lace the juvenile on probation, or under supervision in the juvenile's own home or in the home of an adult who is related to the juvenile." Id. (emphasis added).
Specifically, the trial court committed the respondent to a county facility as permitted by MCL 712A.18(1)(e) until his release to the community could be arranged. The terms of his probation thus were effective during his interim stay at the juvenile home; respondent presents no authority to support the proposition that the other terms of his probation, such as the prohibition against "assaultive, abuse, threatening, or intimidating behaviors" would not take effect until he left the facility. Respondent has failed to establish plain error. See Carines, 460 Mich at 763-764.
Affirmed.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Mark T. Boonstra