16.14Required Procedures at Juvenile Sentencing Hearing

Unless the juvenile is convicted of one of the very serious offenses enumerated in MCL 769.1(1)(a)-(l),¹ or unless a hearing is waived,² the circuit court must conduct a juvenile sentencing hearing to determine whether the best interests of the public would be served by:

•imposing any sentence provided by law for an adult offender, or

•placing the juvenile on probation and committing the juvenile to an institution or agency as described in the Youth Rehabilitation Services Act, MCL 803.301 et seq. MCL 769.1(3); MCR 6.931(A).

A.Reports

Before sentencing a juvenile, a presentence investigation report (PSIR) must be prepared by a Department of Corrections probation officer. MCL 771.14.³ Additionally, before a juvenile sentencing hearing, or before disposition if the hearing has been waived,⁴ a “social report”⁵ must be prepared by the DHHS (“or county juvenile agency,^[6] as applicable”). MCL 771.14a; MCL 803.224; see also MCR 6.903(L).⁷ The court must receive and consider these reports at the juvenile sentencing hearing. MCR 6.931(E)(1).

The court must give the prosecuting attorney, the juvenile, and the juvenile’s attorney an opportunity to review the PSIR and the social report prior to the juvenile sentencing hearing. MCL 771.14(5); MCL 771.14a(3); MCR 6.931(D).

1.Contents of Social Report⁸

MCL 771.14a(1) provides that, before the juvenile’s sentencing, the DHHS or county juvenile agency “shall inquire into the juvenile’s antecedents, character, and circumstances and shall report in writing to the court as provided in . . . MCL 803.224.”

MCL 803.224, in turn, provides as follows:

“(1) If a juvenile within the jurisdiction of the circuit court under . . . MCL 600.606[] is committed to a juvenile facility pending trial, the [DHHS] or county juvenile agency, as applicable, shall inquire into the juvenile’s antecedents, character, and circumstances and shall report in writing to the court before the juvenile’s sentencing.

(2) A report prepared under [MCL 803.224(1)] shall include all of the following:

(a) An evaluation of and a prognosis for the juvenile’s adjustment in the community based on factual information contained in the report.

(b) A recommendation as to whether the juvenile is more likely to be rehabilitated by the services and facilities available in adult programs and procedures than in juvenile programs and procedures.

(c) A recommendation as to what disposition is in the best interests of the public welfare and the protection of the public security.”

2.Information That May be Exempted From Disclosure in Social Report

MCL 771.14a(2) provides:

“The court may exempt from disclosure in a report under this section information or a diagnostic opinion that might seriously disrupt a program of rehabilitation or sources of information obtained on a promise of confidentiality. If a part of the report is not disclosed, the court shall state on the record the reasons for its action and inform the juvenile and his or her attorney that information has not been disclosed. The action of the court in exempting information from disclosure is subject to appellate review. Information or a diagnostic opinion exempted from disclosure under this subsection shall be specifically noted in the report.”

3.Use of Prior Juvenile Adjudications⁹

“The juvenile’s prior record of delinquency including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior” must be considered by the judge at the juvenile sentencing hearing, and this factor, together with the seriousness of the sentencing offense, is accorded more weight than the other relevant factors. MCL 769.1(3)(c).

In apparent contrast with MCL 769.1(3)(c), MCL 712A.23 provides:

“Evidence regarding the disposition of a juvenile under [the Juvenile Code] and evidence obtained in a dispositional proceeding under [the Juvenile Code] shall not be used against that juvenile for any purpose in any judicial proceeding except in a subsequent case against that juvenile under [the Juvenile Code]. This section does not apply to a criminal conviction under [the Juvenile Code].”

However, MCL 712A.23 presumably does not preclude consideration of a juvenile offense record in determining whether to sentence a juvenile as an adult in an automatic waiver proceeding. As noted, MCL 769.1(3)(c) specifically directs the circuit court to consider the juvenile’s prior record of delinquency when determining the appropriate sentence. Furthermore, MCL 712A.23 does not prevent consideration of a juvenile offense record when imposing sentence upon an adult defendant, People v McFarlin (Gary), 389 Mich 557, 561, 575 (1973) (“the presentence report should include information concerning juvenile history, including a disposition by a juvenile court, and . . . it is proper to consider this information as a factor in sentencing an adult offender”), or when imposing sentence upon a juvenile defendant following traditional waiver proceedings, People v Coleman, 19 Mich App 250, 256 (1969), abrogated on other grounds by People v McFarlin (Gary), 41 Mich App 116 (1972), rev’d on other grounds 389 Mich 557 (1973)¹⁰ (the term “evidence” in MCL 712A.23 “connotes testimony and matters actually presented at trial[, and t]he post-conviction examination of juvenile records in order to impose a fair and just sentence is not a use of such records as ‘evidence’”).

4.Appointment of Psychiatrist or Psychologist

A psychiatric examination may be performed, by court order or upon request, before sentencing. People v Wright, 431 Mich 282, 287 (1988), citing MCL 771.14(1). However, an indigent juvenile is not entitled to the appointment of a psychiatrist or psychologist of his or her own choosing at public expense for purposes of a juvenile sentencing hearing. People v Stone, 195 Mich App 600, 604-606 (1992) (noting that although Ake v Oklahoma, 470 US 68, 77, 83 (1985), requires that an indigent defendant have access to psychiatric assistance in the preparation of a defense under some circumstances, it does not require the appointment of a psychologist or psychiatrist of the defendant’s own choosing, and further noting that the defendant’s private interest was less compelling in the posttrial stage than at trial; thus, “[a]ssuming, arguendo, that [a juvenile defendant] was entitled to access to a competent psychologist, he [or she] was afforded that right[]” where a psychologist was appointed by the juvenile court to prepare a report for use at the juvenile’s discretionary waiver hearing on another charge).   

B.Rules of Evidence

The rules of evidence do not apply at a juvenile sentencing hearing. MCL 769.1(3); MCR 6.931(E)(1). “[A]ll relevant and material evidence may be received by the court and relied upon to the extent of its probative value, even though such evidence may not be admissible at trial.” MCR 6.931(E)(1).

C.Burden and Standard of Proof

Except for the 12 very serious specified juvenile violations enumerated in MCL 769.1(1)¹¹ and for a certain controlled substance offense under MCL 333.7403(2)(a)(i), for which the court must consider an alternative sentence,¹² the court must “sentence the juvenile in the same manner as an adult unless the court determines by a preponderance of the evidence that the interests of the public would be best served by placing the juvenile on probation and committing the juvenile to [state wardship]. . . .” MCL 769.1(3). MCR 6.931(E)(2) contains substantially similar language.