In re Wilson 113 Mich. App. 113

Per Curiam.

On March 20, 1979, the Wayne County Prosecutor filed a petition in the Wayne County Probate Court, Juvenile Division (hereinafter, juvenile court), alleging that Sylvester Wilson committed acts, the nature of which constituted the felonies of assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Jurisdiction of the juvenile court was alleged to exist pursuant to MCL 712A.2(a)(l); MSA 27.3178(598.2)(a)(l).1 At the time the petition was filed, Wilson was 16 years of age.

The prosecutor then filed a motion requesting waiver of juvenile court jurisdiction pursuant to MCL 712A.4; MSA 27.3178(598.4).2 Following a *117"probable cause” or "phase 1” hearing held April 12, 1979, the court found probable cause to believe that Wilson committed the acts charged in the petition and motion. See MCL 712A.4(3); MSA 27.3178(598.4)(3), and JCR 1969, 11.1(A).3

*118On May 16, 1979, a "phase 2” hearing was held pursuant to MCL 712A.4(4); MSA 27.3178(598.4)(4), and JCR 1969, 11.1(B), to determine whether the interests of the child and the public would best be served by granting the waiver of jurisdiction. The prosecutor presented his first witness, a psychologist who testified as to his psychological evaluation of Wilson and his conclusion regarding the waiver issue. At the conclusion of this testimony, a short off-the-record discussion was held between the court and counsel. Over the prosecutor’s objection, the court terminated the phase 2 hearing, "dismissed” the prosecutor’s motion requesting waiver and accepted Wilson’s plea in confession to the offense of felonious assault, MCL 750.82; MSA 28.277. A final order was entered May 18, 1979.

Pursuant to MCL 600.863; MSA 27A.863, the prosecutor appealed to the Wayne County Circuit Court, which affirmed the order of the juvenile court. The prosecutor brings this appeal by leave granted February 18, 1981.

The prosecutor contends that the juvenile court erred in terminating the phase 2 hearing without allowing testimony from additional available witnesses regarding the waiver issue, and in allowing Wilson to enter a plea in confession to the included offense of felonious assault, without the prosecutor’s concurrence.

JCR 1969, 11.1(B) provides in part:

"Phase 2: Criteria for Waiver. On a showing of probable cause, the court shall conduct a full investigation to determine whether the interests of the child and the public would best be served by granting a waiver of .jurisdiction to a court of criminal jurisdiction.

"In making the determination, the following criteria must be considered and the court shall make findings on them before a waiver may be granted:

*119"(1) the prior record and character of the child, his physical and mental maturity, and his pattern of living;

"(2) the seriousness of the offense;

"(3) even though less serious, if the offense is part of a repetitive pattern of offenses which would lead to a determination that the child may be beyond rehabilitation under the regular statutory juvenile procedures;

"(4) the relative suitability of programs and facilities available to the juvenile and criminal courts for the child;

"(5) whether the best interests of the public welfare and the protection of the public security, generally, require that the juvenile stand trial as an adult offender.”

The court rule parallels MCL 712A.4; MSA 27.3178(598.4).

If, after a full investigation, the court declines to waive jurisdiction, the matter proceeds to an adjudicative hearing, at which it is determined whether the child comes within the court’s jurisdiction as alleged in the petition. JCR 1969, 8.1(A). Unless the child enters a valid plea in confession, the prosecutor has the burden of proving beyond a reasonable doubt the allegations in the petition.4

The above-cited provisions make clear that the waiver issue is separate from the adjudicative phase, and must be resolved by the court without regard to the child’s stated desire to enter a valid plea in confession to the offense charged in the petition or to some included offense. If waiver of jurisdiction is granted, the court must provide a *120written statement setting forth findings which form the basis for the waiver. MCL 712A.4(7); MSA 28.3178(598.4)(7), JCR 1969, 11.6. No statement of findings is required where waiver is denied. Nonetheless, the court is bound to conduct a full investigation and to hear all relevant and available evidence bearing on the criteria set forth in the court rule and statute. See People v Schumacher, 75 Mich App 505; 256 NW2d 39 (1977).

In the present case, the court made no substantive ruling on the waiver issue, but rather, "dismissed” the motion requesting waiver, terminated the phase 2 proceedings and accepted Wilson’s plea in confession. The cause is therefore remanded for a full investigation and determination of the waiver issue. The prosecutor shall be entitled to present any relevant evidence he may have bearing on the criteria set forth in the court rule and statute.

On remand, the juvenile court may decide that waiver of jurisdiction is not in the best interests of the child and the public. It is therefore necessary for us to decide whether, at the adjudicative phase, the court may accept, over the prosecutor’s objections, a valid plea in confession to a lesser included offense to the offense charged in the petition.

In Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972) (hereafter Genesee Prosecutor I), the Supreme Court held that a trial judge does not have authority, over the objection of the prosecutor, to accept a plea of guilty to an offense not charged in the information. In Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974) (hereafter Genesee Prosecutor II), the Court held that a trial judge may not, over the prosecutor’s objec*121tion, accept a plea of guilty to one count of a multi-count information or a plea of guilty to a lesser included offense to the offense charged in the information. We must now decide whether the principle prohibiting a trial court from accepting, over the prosecutor’s objection, a plea to a lesser included offense, applies to juvenile court proceedings.

The Genesee Prosecutor decisions were based primarily on the separation of powers doctrine. The Court in Genesee Prosecutor II, supra, 121, noted that, while a circuit judge has the power of judicial review over certain decisions of the examining magistrate and the prosecutor, he does not possess supervisory power over the prosecutor. The Court stated:

"A circuit judge does not enjoy supervisory power over a prosecuting attorney. He may reverse a magistrate’s decision only for abuse of discretion. He may not properly substitute his judgment for that of the magistrate or prosecuting attorney as if he were reviewing the magistrate’s decision de novo or acting in a supervisory capacity with respect to the prosecuting attorney. He may reverse or revise their decisions only if it appears on the record that they have abused the power confided to them.” (Footnotes omitted.)

We believe this holding is applicable to the present case. Juvenile delinquency proceedings are not criminal or adversary in nature. MCL 712A.1; MSA 27.3178(598.1), JCR 1969, 1.3. Nonetheless, the procedures for invoking juvenile court jurisdiction in cases where a child is alleged to have committed a criminal act are closely analogous to the adversary criminal process. It is the prosecutor who generally initiates the formal proceeding by filing a petition. See JCR 1969, 4.1, MCL 764.27; MSA 28.886. Proper notice to the affected parties *122is required. MCL 712A.12; MSA 27.3178(598.12), JCR 1969, 7.2. In cases where the child is taken into custody and not released to his parents or guardian, there must be a preliminary hearing within 48 hours. JCR 1969, 4.2. At the preliminary hearing, the court must, inter alia, read to the child the allegations in the complaint or petition and explain the nature of the proceeding. JCR 1969, 4.2(B)(3)-(5). Functionally speaking, the procedure at the preliminary hearing corresponds closely to the initial arraignment in the instance of an adult offender.

Where a request for waiver of juvenile court jurisdiction is filed, the court must conduct a hearing to determine whether there is probable cause to believe that the child committed the acts charged in the petition. MCL 712A.4(3); MSA 27.3178(598.4X3), JCR 1969, 11.1(A). If the waiver request is denied, the matter proceeds to the adjudicative phase, at which the child has a right to a jury trial. JCR 1969, 8.1(A). The rules of evidence for a criminal proceeding and the standard of proof beyond a reasonable doubt apply. JCR 1969, 8.3(A). With the exception of the right to a public trial, the usual protections accorded adults in criminal prosecutions govern delinquency proceedings.

After a careful review of the statutes and court rules, we are convinced that, for purposes of deciding the issue at bar, the respective roles of the prosecutor and the court are functionally equivalent to adult criminal prosecutions. The juvenile court does not possess supervisory power over the prosecutor. Accordingly, we hold that the juvenile court may not, without the prosecutor’s concurrence, accept a plea in confession to a lesser included offense to the offense charged in the peti*123tion. The people, represented by the prosecutor, are entitled to a determination of juvenile court jurisdiction based on the acts charged in the petition.

Finally, we note that neither the double jeopardy clause5 nor the policy considerations present in People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), would preclude an eventual adjudication of guilt of the offenses charged in the petition. See Genesee Prosecutor II, supra, 122-123.

Remanded for proceedings consistent with this opinion. We retain no further jurisdiction.

V. J. Brennan,. J.

(dissenting). I. respectfully dissent.

The prosecution contends that the juvenile court did not conduct a "full investigation” because it did not permit the prosecution to present its additional witnesses. In my opinion the juvenile court conducted a full investigation in compliance with JCR 1969, 11.1(B) (as set forth in the majority’s opinion).

The juvenile court heard the crucial testimony of the people’s first witness, a psychologist. At that point, the court determined that it would not waive jurisdiction of the defendant. The prosecution objected because it had additional witnesses to present. Apparently the court believed that the testimony of the additional witnesses would not affect its decision to deny the waiver.

The decision of whether to waive juvenile court jurisdiction is discretionary. When a waiver is granted, JCR 1969, 11.1(B) requires not only a full investigation but also detailed findings in the designated criteria set forth in the court rule. People v Allen, 90 Mich App 128; 282 NW2d 255 (1979), *124People v Schumacher, 75 Mich App 505; 256 NW2d 39 (1977). However, these findings are not required when a waiver is denied. Therefore, it is my opinion that when a waiver is denied, our review is limited to determining whether the juvenile court conducted a full investigation. It is also my opinion that, in the exercise of its discretion, the juvenile court can terminate a hearing on a motion to waive jurisdiction over the juvenile. If the court terminates the hearing before the prosecution has presented all of its witnesses, this does not mean that the court did not conduct a "full investigation” as required by the court rule. A full investigation should not be construed to mean that the juvenile court is bound to hear every witness the prosecution intends to present. Where, as here, the court determines that waiver is not appropriate, nothing would be gained by requiring the juvenile court to permit the prosecution to present witnesses whose testimony would be extraneous or cumulative. It is not the volume of testimony that is important. Rather, it is important that the court conduct a full investigation and consider the five enumerated factors in the court rule. If after one witness the court determines that waiver is not appropriate, its decision should not be overturned absent a clear abuse of discretion.

I do not find a clear abuse of discretion in this case because the record discloses that the court reviewed the factors set forth in JCR 1969, 11.1(B) in deciding to deny the waiver and conducted a full investigation. It is not apparent that the testimony proffered by the prosecutor would have had any impact whatsoever on the court’s decision. Therefore, I find no reason to remand this case.

Furthermore, I disagree with the majority’s finding that "the juvenile court may not, without the *125prosecutor’s concurrence, accept a plea in confession to a lesser included offense to the offense charged in the petititon”. The Genesee Prosecutor decisions, relied upon by the majority, pertained to adversary criminal proceedings in "adult court” and, as such, are not applicable to juvenile proceedings. In juvenile court there is more leeway and discretion vested in the court in dispositions of this nature. Proceedings in the juvenile court cannot be compared to proceedings in "adult court”, and decisions pertaining to adversary criminal proceedings should not be adhereed to.

I would caution appellate courts in their rush to monitor each and every procedure of the juvenile disposition. In that attempt, the courts could hinder the atmosphere of, and the theory behind, the juvenile court system which is necessary to the resolution of adolescent problems. The juvenile court’s plea acceptance in the instant case solved the problem on hand. The court’s decision to accept the plea should not be overridden or thwarted by an overzealous prosecutor.

I find that the juvenile court conducted a full investigation on the waiver issue and I would affirm the court’s acceptance of the plea.