author: D. C. Riley, J.

text:
    IN THE MATTER OF BABY X
    Docket No. 46543.
    Submitted January 17, 1980, at Detroit.
    Decided April 23, 1980.
    Baby X, within 24 hours of birth, began exhibiting symptoms of drug withdrawal. The Department of Social Services petitioned the Oakland County Probate Court to assert jurisdiction over the child because of the mother’s neglect. The probate court found sufficient evidence of neglect to take temporary custody of the child, and that decision was upheld on appeal to the Oakland Circuit Court, John N. O’Brien, J. The child’s mother appeals by leave granted, alleging that her conduct, specifically her ingestion of narcotics prior to the birth of the child, cannot constitute neglect or abuse under the Probate Code and that the probate court wrongfully asserted jurisdiction and that the probate court wrongfully ruled that hospital records for both her and the child were admissible into evidence despite a Federal law requiring confidentiality of records of drug abuse treatment patients. Held:

    1. Prenatal conduct can be considered probative by a parent of a child’s neglect. A newborn suffering narcotics withdrawal symptoms as a consequence of prenatal maternal drug addiction may properly be considered a neglected child within the jurisdiction of the probate court. The probate court, therefore, properly asserted jurisdiction.
    2. State law requires certain professionals to report any suspected child abuse. On the other hand, Federal law states that all patient records maintained in connection with drug abuse programs may not be disclosed absent good cause and a court order. However, in neglect proceedings, confidentiality must give way to the best interests of the child and a court may authorize disclosure where drug treatment records are found to be necessary and material to the state’s proof of neglect. Although this disclosure normally requires a proper court order, in this case it is not necessary to reverse because of the probate court’s failure to issue such an order because the probate judge competently balanced all considerations in reaching the decision allowing introduction of the records.

      References for Points in Headnotes
    [1] 42 Am Jur 2d, Infants §§ 22, 43, 55.
    59 Am Jur 2d, Parent and Child §§ 39, 40.
    [2] 20 Am Jur 2d, Courts § 104.
    42 Am Jur 2d, Infants § 2.
    [3] 42 Am Jur 2d, Infants §§ 2, 16.
    [4] 42 Am Jur 2d, Infants §§. 16, 55.
    Liability for prenatal injuries. 40 ALR3d 1222.
    [5] 42 Am Jur 2d, Infants § 16.
    66 Am Jur 2d, Records and Recording Laws § 27 et seq.

      Affirmed.
    1. Infants — Probate Court — Jurisdiction — Child Neglect — Statutes.
    A probate court acting pursuant to a statute which confers probate jurisdiction over a child where there are allegations of neglect must first determine whether the facts alleged are sufficient for the court to assert its jurisdiction and, if so, the court should order disposition according to the best interests of the child after considering all the facts and alternatives (MCL 712A.2; MSA 27.3178[598.2]).
    2. Infants — Probate Court — Jurisdiction — Unborn Child — Statutes.
    A probate court may not assert jurisdiction over an unborn person as it is not a "child” under the statute conferring jurisdiction over children (MCL 712A.2; MSA 27.3178[598.2]).
    3. Infants — Unborn Child — Best Interests of Child — Parent’s Prenatal Conduct.
    The limited recognition of a child en ventre sa mere as a child in esse is appropriate where it is for the child’s best interest and, because a child has a legal right to begin life with a sound mind and body, it is within the child’s best interest to examine any prenatal conduct of the parent which bears upon that right.
    4. Infants — Child Neglect — Narcotics Addiction — Probate Court.
    A newborn infant suffering narcotics withdrawal symptoms as a consequence of prenatal maternal drug addiction may properly be considered a neglected child for purposes of the jurisdiction of the probate court.
    5. Records — Narcotics Treatment — Child Neglect — Confidentiality of Records.
    The statutory confidentiality of narcotics treatment records of a mother is subordinate to the best interests of a child in a proceeding based on allegations of child neglect; disclosure may be authorized where the treatment records are found to be necessary and material to the state’s proof of neglect.

      Evelyn F. Forrest, for appellant.

      L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Jerome Sabbota, Assistant Prosecuting Attorney, for appellee.

      Cooper, Shipman & Gabe, guardian ad litem for Baby X.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   D. C. Riley, J.

On March 30, 1977, the minor child who is the subject of this lawsuit was born in St. Joseph’s Hospital of Pontiac, Michigan. Within 24 hours of birth this child, known as Baby X for purposes of these proceedings, began exhibiting symptoms of drug withdrawal, whereupon a petition was filed with the Oakland County Probate Court alleging that appellant, Mother X, had so neglected her child that the court should assert jurisdiction. The probate judge found sufficient evidence of neglect to take temporary custody of Baby X, a decision affirmed by the Oakland County Circuit Court and now appealed by the child’s mother.

The Probate Code provides as follows:

"Sec. 2. Except as provided herein, the juvenile division of the probate court shall have:
"(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county
"(1) Whose parent or other person legally responsible for the care and maintenance of such child, when able to do so, neglects or refuses to provide proper or necessary support, education as required by law, medical, surgical or other care necessary for his health, morals, or who is deprived of emotional well-being, or who is abandoned by his parents, guardian or other custodian, or who is otherwise without proper custody or guardianship; or
"(2) Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality or depravity on the part of a parent, guardian or other custodian, is an unfit place for such child to live in, or whose mother is unmarried and without adequate provision for care and support.” MCL 712A.2; MSA 27.3178(598.2).

A probate court acting pursuant to this statute must make two determinations. At the adjudicative stage, the court should initially consider whether sufficient facts have been alleged to support assertion of jurisdiction. If sufficient jurisdictional facts exist, for instance, if the facts establish neglect, the court can proceed to the dispositional stage. After considering all the facts and alternatives, the judge should order disposition according to the best interests of the child. See In the Matter of Rebecca Oakes, 53 Mich App 629; 220 NW2d 188 (1974), People v Brown, 49 Mich App 358; 212 NW2d 55 (1973), In re Franzel, 24 Mich App 371; 180 NW2d 375 (1970).

In the instant case, it is the adjudicative stage that is currently at issue. Mother X contends that prenatal conduct cannot constitute neglect or abuse under the Probate Code; therefore, the probate court wrongly asserted jurisdiction.

It recently has been held that the probate court may not assert jurisdiction over an unborn person as it is not a "child” under MCL 712A.2; MSA 27.3178(598.2). In re Dittrick Infant, 80 Mich App 219, 223; 263 NW2d 37 (1977). However, since Baby X was born before the instant petition was filed by the Department of Social Services, this aspect of jurisdiction is not properly at issue. The prenatal; period is only pertinent because it is the sole asserted basis for establishing jurisdiction based on neglect. The initial question then becomes whether a mother’s prenatal behavior is relevant to a determination of a living child’s neglect.

While there is no wholesale recognition of fetuses as persons, Roe v Wade, 410 US 113, 162; 93 S Ct 705; 35 L Ed 2d 147 (1973), Toth v Goree, 65 Mich App 296, 303; 237 NW2d 297 (1975), fetuses have been accorded rights under certain limited circumstances. O’Neill v Morse, 385 Mich 130; 188 NW2d 785 (1971) (wrongful death action allowable for 8-month-old viable fetus), Womack v Buchhorn, 384 Mich 718; 187 NW2d 218 (1971) (common law action allowable for surviving child injured during the fourth month of pregnancy), LaBlue v Specker, 358 Mich 558; 100 NW2d 445 (1960) (dramshop action allowable for fetus of dead father). This limited recognition of a child en ventre sa mere as a child in esse is appropriate when it is for the child’s best interest. LaBlue, supra, 563. Since a child has a legal right to begin life with a sound mind and body, Womack, supra, 725, we believe it is within his best interest to examine all prenatal conduct bearing on that right.

It must then be determined whether prenatal conduct — specifically, extensive narcotics ingestion by the mother — can constitute neglect sufficient for the probate court’s assertion of jurisdiction.

Under the Probate Code, a permanent custody order must be based on circumstances which "establish or seriously threaten neglect of the child for the long-run future”. The quantum of neglect sufficient for temporary custody or merely establishing jurisdiction implicitly must be less, i.e., temporary neglect. See Fritts v Krugh, 354 Mich 97, 113-114; 92 NW2d 604 (1958).

In Dittrick, supra, this Court recognized that mistreatment of a child is probative of how a parent may treat other soon-to-be-born siblings. It may readily be inferred, then, that such abuse is sufficient to establish jurisdiction. See also, In the Matter of LaFlure, 48 Mich App 377, 392; 210 NW2d 482 (1973).

Since prior treatment of one child can support neglect allegations regarding another child, we believe that prenatal treatment can be considered probative of a child’s neglect as well. We hold that a newborn suffering narcotics withdrawal symptoms as a consequence of prenatal maternal drug addiction may properly be considered a neglected child within the jurisdiction of the probate court. We pass no judgment upon whether such conduct will suffice to permanently deprive a mother of custody. Such custody determinations will be resolved at the dispositional phase where prenatal conduct will be considered along with postnatal conduct.

In addition to the jurisdictional matter, Mother X asserts that her right to confidentiality as a drug abuse patient was impaired by the lower court. Specifically, she contends that a conflict exists between Federal law which protects patients from disclosure of their drug addiction records and state law which mandates disclosure of child abuse and neglect. The probate court rejected Mother X’s objections and ruled that hospital records for both her and Baby X were admissible. Although the circuit court did not deal with this issue, we believe that it is of such importance that it must be addressed here. See Clark v Dalman, 379 Mich 251; 150 NW2d 755 (1967).

MCL 722.623; MSA 25.248(3) provides that certain professionals should report any suspected child abuse to the proper authorities, supplying such information as the child’s name, parents’ names and a description of the abuse. No privilege (except for that between attorney and client) can constitute grounds for excusing such a report or for excluding evidence in a protective juvenile proceeding. MCL 722.631; MSA 25.248(H).

These statutes favoring disclosure are diametrically opposed to drug treatment statutes protective of confidentiality. 21 USC 1175 states that all patient records, which are maintained in connection with drug abuse programs supported by the Federal government, may not be disclosed absent "good cause” and a court order. Interpretative regulations promulgated by the Department of Health, Education and Welfare have extended this confidentiality to information that is in any way related to the diagnosis and treatment of drug abuse. 42 CFR § 2.13 (1979). Thus, the release of the hospital’s report and records concerning Baby X’s withdrawal symptoms and the information regarding Mother X’s drug abuse was allegedly in contravention of the Federal statute as well as possibly a state statute, MCL 325.728; MSA 18.103N28)._

Two New York courts have dealt with a similar conflict between the Federal and state law. In the Matter of Dwayne G, 97 Misc 2d 333; 411 NYS2d 180 (Fam Ct, 1978), In the Matter of the Doe Children, 93 Misc 2d 479; 402 NYS2d 958 (Fam Ct, 1978). In both neglect-proceeding cases, the Social Services Commissioner moved for the production of records on the mothers’ drug or alcohol abuse. Production was opposed based on 21 USC 1175(a). In both cases, the family courts held that the records should be produced pursuant to orders issued under 21 USC 1175(b)(2)(C).

We quote Doe, supra, 959-960.

"As stated in this section [21 U.S.C. § 1175(b)(2)(C)], it is the duty of the court to weigh the public interest and the need for disclosure against the injury to the patient. In assessing the public interest, the court must consider the safety and welfare of the three children who are alleged to be neglected. The purpose of the child protective proceeding, is 'to help protect children from injury or mistreatment and to help safeguard their physical, mental and emotional well-being.’ Family Court Act Section 1011. This Court is of the opinion that the interest of these young children in living in secure surroundings outweighs any possible injury to the patient, or to the physician-patient relationship. The private nature of a Family Court proceeding, and the fact that 'the records of any proceeding in the family court shall not be open to indiscriminate public inspection’ (Family Court Act section 166) minimizes the likelihood of the respondent’s status becoming a matter of public record. Thus, this Court finds that there is good cause for disclosure of the requested records, as required by 21 U.S.C. § 1175.”

We too agree that in neglect proceedings confidentiality must give way to the best interests of the child. Where treatment records are found to be "necessary and material”, Dwayne G, supra, 183, to the state’s proof of neglect, a court of competent jurisdiction may authorize disclosure. Alleged drug or alcohol dependence (here, the alleged heroin addiction of Mother X) which causes a baby’s withdrawal and failure to thrive is .sufficient "good cause” as required by the Federal statute (and sufficient under the state statute as well) to order production of the records.

While normally, in the absence of this necessary court order, we would be compelled to reverse, we need not do so here. The probate judge conducted a substantial inquiry into the competing concerns and policies inherent in the case sub judice. He first sought to protect the mother’s own confidentiality needs by appointing a separate guardian ad litem for Baby X and then ultimately limited the records to be produced to "objective data” only. Throughout the proceedings, the court complied with the spirit of the Federal statute that the court weigh "the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services”. 21 USC 1175(b)(2)(C). In ultimately concluding that the child’s best interests must preponderate over the mother’s, the judge below did everything but issue the proper court order. In light of his competent balancing, his carefully restrictive admissions and the limited, private nature of the child neglect proceedings, we see no reason to reverse here based on the lack of a proper court order. In future neglect cases, however, any conflict between Federal and state law can be avoided by filing a John or Jane Doe petition with the disclosure of any names and confidential information to follow the issuance of a court order upon "good cause”.

Affirmed.

       "Sec. 3. (1) A physician, coroner, dentist, medical examiner, nurse, audiologist, certified social worker, social worker, social work technician, school administrator, school counselor or teacher, law enforcement officer, or duly regulated child care provider who has reasonable cause to suspect child abuse or neglect immediately, by telephone or otherwise, shall make an oral report, or cause an oral report to be made, of the suspected child abuse or neglect to the department. Within 72 hours the reporting person shall file a written report as required in this act. If the reporting person is a member of a hospital, agency, or school staff, the reporting person shall notify the person in charge thereof of his or her finding, that the report has been made, and make a copy of the written report available to the person in charge. One report from a hospital, agency, or school shall be considered adequate to meet the reporting requirement.
      "(2) The written report shall contain the name of the child and a description of the abuse or neglect. If possible, the report shall contain the names and addresses of the child’s parents, the child’s guardian, or the persons with whom the child resides, and the child’s age. The report shall contain other information available to the reporting person which might establish the cause of abuse or neglect and the manner in which it occurred.” MCL 722.623; MSA 25.248(3).

       "Sec. 11. Any legally recognized privileged communication except that between attorney and client is abrogated and shall neither constitute grounds for excusing a report otherwise required to be made nor for excluding evidence in a civil child protective proceeding resulting from a report made pursuant to this act.” MCL 722.631; MSA 25.248(11).

       "(a)Disclosure authorization” Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.
      "(b) Purposes and circumstances of disclosure affecting consenting patient and patient regardless of consent
      "(1) The content of any record referred to in subsection (a) of this section may be disclosed in accordance with the prior written consent of the patient with respect to whom such record is maintained, but only to such extent, under such circumstances, and for such purposes as may be allowed under regulations prescribed pursuant to subsection (g) of this section.
      "(2) Whether or not the patient, with respect to whom any given record referred to in subsection (a) of this section is maintained, gives his written consent, the content of such record may be disclosed as follows:
      "(A) To medical personnel to the extent necessary to meet a bonafide medical emergency.
      "(B) To qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evaluation, but such personnel may not identify,- directly or indirectly, any individual patient in any report of such research, audit, or evaluation, or otherwise disclose patient identities in any manner
      "(C) If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.” 21 USC 1175.

       "Sec. 18. (1) Records of • the identity, diagnosis, prognosis, or treatment of any individual which are maintained in connection with the performance of any licensed substance abuse treatment-rehabilitation or prevention service authorized or assisted under this act are confidential and may be disclosed only for the purposes and under the circumstances expressly authorized under this section.
      "(2) If the individual with respect to whom any given record referred to in this section is maintained, gives his written consent, the content of the record may be disclosed to medical personnel for the purpose of diagnosis or treatment of the person, or to governmental personnel for the purpose of obtaining benefits to which the person is entitled, * * *
      "(3) If the person with respect to whom any given record referred to in this section is maintained, does not give his written consent, the content of the record may only be disclosed as follows:
      "(a) To medical personnel to the extent necessary to meet bona fide medical emergency.
      "(b) To qualified personnel for the purpose of conducting scientific statistical research, financial audits, or program evaluation, but the personnel' shall not identify, directly or indirectly, any individual person in any report of the research audit, or evaluation or otherwise disclose identities in any manner.
      "(c) Upon application, a court of proper jurisdiction may order the disclosure of whether a specific person is in treatment with an agency. In all other respects the confidentiality shall be the same as the physician-patient relationship as provided by law.” MCL 325.728; MSA 18.1031(28). (This statute was repealed in 1978.)


source: Caselaw Access Project

author: P. J. Glennie, J.

license: Public Domain

text:
    PEOPLE v OSTER (ON RESUBMISSION)
    Docket No. 47063.
    Submitted October 10, 1979, at Lansing.
    Decided April 23, 1980.
    Leave to appeal applied for.
    Ronald C. Oster was convicted in 1974 of voluntary manslaughter following a bench trial. Oster appealed that conviction to the Court of Appeals challenging the examining magistrate’s binding him over on an open charge of murder and asserting that acquittal was mandated by reason of unrebutted expert testimony. The Court of Appeals affirmed. See People v Oster, 67 Mich App 490; 241 NW2d 260 (1976). The Michigan Supreme Court denied leave to appeal. See 397 Mich 848 (1976). In 1978, Oster filed a delayed motion to vacate sentence and to resentence on the basis that several prior convictions which had been obtained without defendant’s having benefit of counsel had been included in the presentence report considered by the trial court at the time of sentencing. The Oakland Circuit Court, John N. O’Brien, J., after a hearing, denied the motion, indicating that the disputed convictions played no significant part in the fixing of sentence and that resentencing was not required. Oster sought superintending control over the Court of Appeals in the Michigan Supreme Court. The Supreme Court directed that the Court of Appeals Clerk resubmit Osier’s original appeal at the October, 1979, session of the Court of Appeals. Oster v Court of Appeals, (Docket No. 58217, unpublished order of August 28, 1979). Held:

    1. It is unnecessary for the Court of Appeals to decide the question of whether the defendant had remained in temporary possession of the residence in which the killing took place and thus had no duty to retreat before using deadly force in defense of himself. Even if the situs of the crime were considered to be defendant’s residence and defendant had no duty to retreat in the face of the unprovoked attack upon him by the victim, the record establishes that defendant was not in sufficient danger to warrant the use of deadly force, and, thus, the defense of self-defense was not available to him. The question of the duty to retreat is separate from the question of whether excessive force was used by the defendant. Having found the use of excessive force, which thereby defeats the defense of self-defense, it is unnecessary to decide the question of any error which might have occurred with respect to the trial court’s consideration of the defendant’s duty to retreat under the circumstances.

      References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide §§ 139, 162-169.
    [2] 40 Am Jur 2d, Homicide §§ 56-64.
    [3, 4] 21 Am Jur 2d, Criminal Law §§ 583-586.
    40 Am Jur 2d, Homicide § 554.
    [5] 21 Am Jur 2d, Criminal Law § 530.
    40 Am Jur 2d, Homicide § 550.
    Defendant’s right to disclosure of presentence reports. 40 ALR3d 681.
    [6] 21 Am Jur 2d, Criminal Law §§ 315, 319, 321.

      2. The trial court’s determination that defendant was guilty of voluntary manslaughter was supported by sufficient evidence.
    3. Resentencing is not mandated by the fact that certain prior misdemeanor convictions which had allegedly been obtained without defendant’s having benefit of counsel were considered at the time of sentencing, since the trial court affirmatively determined that the consideration of those convictions played no part in the court’s determination of defendant’s sentencing and that such consideration did not change the sentence the court would have imposed if those convictions had not been considered. Further, resentencing is not mandated by the disputed information in the presentence report, since the court determined that such information played no significant role in the determination of the sentence imposed.
    4. Defendant was not denied the effective exercise of his right to allocution by the failure of the trial court to disclose sua sponte the contents of the presentence report. Error predicated upon the refusal to permit review of the contents of a presentence report will be heard only where the record establishes that the trial court was requested to divulge the contents of the presentence report.
    5. The discussion and holdings relative to the issues raised in the prior appeal (67 Mich App 490 [1976]) are adopted.
    6. Defendant’s assertions of a denial of effective assistance of appellate counsel are meritless. Not only is the claim lacking in factual validity, since the issues raised in this appeal are found to be lacking in sufficient merit to warrant reversal, but also the claim is meaningless in this context, since defendant has been afforded a second appeal, the relief which would be granted to one determined to have been denied effective assistance of appellate counsel.
    Affirmed.
    1. Homicide — Defenses — Self-Defense — Duty to Retreat — Dwellings — Deadly Force — Justification.
    It is unnecessary to decide the question of whether a defendant had remained in temporary possession of a residence such that he would have no duty to retreat before using deadly force in the face of an assault upon him where it is determined that the defendant used deadly force in response to an unprovoked assault upon him under circumstances in which the defendant was not in sufficient danger to justify the taking of a life; the question of the duty to retreat is separate from the question of whether excessive force was used by the defendant when considering whether the defendant was justified in using deadly force in defense of himself.
    2. Homicide — Manslaughter — Evidence — Sufficiency of Evidence.
    A verdict of guilty of voluntary manslaughter is supported by sufficient evidence where the record supports the findings of the trier of fact that the defendant stabbed his assailant as a result of temporary excitement and without wickedness of heart or cruelty or recklessness of disposition following an unprovoked attack upon the defendant, but under circumstances where the use of deadly force is not justified.
    3. Criminal Law — Sentences — Prior Convictions — Tucker Hearing — Remand — Different Result.
    Resentencing is not mandated where a trial court, following a Tucker hearing, determined that, while the court considered in its sentencing certain misdemeanor convictions which were allegedly constitutionally infirm because such convictions were obtained without defendant’s having benefit of counsel, consideration of the infirm convictions played no part in the court’s determination of the defendant’s sentence and did not change the sentence the court would have imposed if those convictions had not been considered.
    4. Criminal Law — Sentencing — Presentence Reports — Disputed Information — Use of Disputed Information.
    Resentencing is not mandated where a trial court determines that disputed information in a presentence report played no significant role in the court’s determination of the sentence imposed.

      5. Criminal Law — Sentencing — Presentence Report — Sua Sponte Disclosure — Request — Record — Court Rules.
    A defendant is not denied the effective exercise of his right of allocution by a failure of the trial court to disclose sua sponte the contents of the presentence report; error predicated upon a refusal to permit review of the contents of a presentence report will be considered only if the record establishes that the trial court was requested to divulge the contents of the presentence report (GCR 1963, 785.12).
    6. Attorney and Client — Criminal Law — Appeal — Effective Assistance of Counsel — Second Appeal.
    A claim by a criminal defendant of ineffective assistance of appellate counsel is meritless where the defendant is granted a second appeal and the issues raised in the second appeal are found not to warrant reversal or resentencing.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Robert C. Williams, Chief Appellate Counsel, for the people.
    Ronald Charles Oster, in propria persona.

    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr. and P. J. Glennie, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   P. J. Glennie, J.

Defendant was charged on an open count of murder. MCL 750.316; MSA 28.548, MCL 750.317; MSA 28.549. After a 1974 bench trial, defendant was convicted of voluntary manslaughter, contrary to MCL 750.321; MSA 28.553, and was sentenced to 10 to 15 years in prison. On November 18, 1974, defendant appealed his conviction to this Court raising the questions whether the examining magistrate abused his discretion in binding defendant over to the circuit court for trial on an open charge of murder and whether acquittal was mandated due to unrebutted expert opinion. In People v Oster, 67 Mich App 490; 241 NW2d 260 (1976), another panel of this Court held that the magistrate had not abused his discretion in binding the defendant over for trial on an open charge of murder and that acquittal was not mandated due to unrebutted expert opinion. Subsequent to this Court’s decision in the case, the Michigan Supreme Court denied leave to appeal. See 397 Mich 848 (1976).

On September 6, 1978, defendant filed a delayed motion to vacate sentence and/or to resentence on the basis that several convictions which had been obtained without defendant’s having benefit of counsel had been included in the presentence report considered by the trial court at the time of sentencing. Defendant argued that such convictions should not have been considered by the court and presented proof which he believed complied with the People v Moore, 391 Mich 426; 216 NW2d 770 (1974), requirements for invoking a Tucker hearing. United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). Defendant further claimed he had been denied his right of allocution at the sentencing hearing.

The trial court denied the motion by an order dated October 25, 1978, indicating that the essential question was the weight given to such convictions, not whether they were considered at all. Thus, although the court "considered” the convictions allegedly obtained without benefit of counsel in sentencing defendant, it found that such misdemeanor convictions were not given sufficient weight so as to require resentencing, even if those convictions had been procured without benefit of counsel. The court concluded that the misdemeanors were "of such little significance, taking the entire picture, as a whole, * * * as to bear no weight in concluding what sentence to impose”.

On August 28, 1979, the Michigan Supreme Court issued an order in the matter of defendant’s complaint for superintending control over this Court which directed the Court of Appeals Clerk to resubmit the appeal in People v Oster at the October session of this Court:

"On order of the Court, the plaintiffs complaint for superintending control is considered, and we direct the Court of Appeals Clerk to re-submit the appeal in People v Ronald Charles Oster (Court of Appeals Docket No. 23270) at the October session of that Court. The plaintiffs motion for an order to show cause becomes moot thereby and is denied.” Oster v Court of Appeals (Docket No. 58217, unpublished order of August 28, 1979).

On October 10, 1979, the original appeal was submitted to this panel on the original briefs. Subsequently, pursuant to permission granted by this Court’s order of September 18, 1979, defendant submitted a new appellate brief and the people responded. Defendant also filed a reply brief.

Defendant’s new appellate brief raises the following issues not considered on the first appeal.

I. Whether, when confronted with an unprovoked nonlethal assault, the defendant was under a duty to retreat from a home of which he was in joint charge during the owners’ short-term absence.

The testimony at trial indicated the following facts. Defendant had been placed in charge of the Southfield home jointly with the owners’ daughter during the owners’ Christmas vacation in Florida. The vacation began on or about December 24, 1973, and was to end sometime after January 1, 1974. Although defendant had moved some of his personal belongings from his home in Detroit to the Southfield home, on December 30, 1973, he returned to his own residence with his clothing, dog, and some instruments. Subsequently, defendant returned to the Southfield home at about midnight on December 31, 1973, intending to return to his own home in Detroit as soon as he could convince Diane Cohn, his roommate and girlfriend, to leave the New Year’s Eve party given by her sister. Defendant and Diane Cohn were standing in the foyer of her parents’ home, preparing to leave, when Alan Goodman, an uninvited guest, began an unprovoked argument with defendant. The disagreement shortly became a physical assault when defendant was punched by Alan Goodman despite defendant’s attempt to end the dispute by turning away. Defendant was thrown onto his back about three steps up a stairway to the second floor. Believing himself in great danger, despite the fact that Alan Goodman was unarmed and the two men were surrounded by party guests, defendant pulled a knife he customarily carried for use in his work, leaped down the stairs, and stabbed Alan Goodman five times. Mr. Goodman subsequently died from the wounds.

At trial, defendant claimed that he stabbed the deceased in self-defense.

The trial court’s findings as to defendant’s actions on January 1, 1974, indicate that the court did not accept defendant’s self-defense claim. The trial court found that Alan Goodman was the aggressor in a physical confrontation which defendant reasonably believed he would lose. The court then found that defendant should be held to a duty to retreat from the confrontation, that he could have retreated before the confrontation began, and that he stabbed Alan Goodman on the unreasonable conclusion that he was in sufficient danger to justify taking a life.

Defendant challenges these findings insofar as they are premised on a duty to retreat. In substantial part he relies on People v Smith, 54 Mich App 652; 221 NW2d 464 (1974), in support of his contention that the Cohn home should have been considered his home on January 1, 1974. Defendant argues that, if such were true, Michigan law does not require him to have retreated from the Cohn home.

In People v Smith, supra, 653, the defendant had moved out of his house and into a friend’s apartment in an effort to break off a relationship with the deceased. The purpose of his stay in the friend’s apartment was to give the deceased time to find a new residence and vacate defendant’s home. One week later, while defendant was at his friend’s apartment, the deceased threatened defendant with a shotgun which she shot twice. The second shot, which was aimed at defendant, hit the ceiling when other persons diverted the gun. This Court ruled as follows with regard to defendant’s duty to retreat:

"Defendant contends that, since he was confronted by the deceased in what was his dwelling at the time of the shooting, he was under no duty to retreat and that the court’s instruction to the contrary constitutes reversible error. We agree. The instruction given in the instant case was almost identical to that found objectional by another panel of this Court in People v McGrandy, 9 Mich App 187; 156 NW2d 48 (1967). The prosecution argues that the defendant herein was not in his own dwelling at the time of the shooting but, rather, he was only temporarily present in the dwelling of another. While this is true we do not, under the facts of this case, consider this to be sufficient to warrant a different result. Defendant left his home and took up residence at Linda Guerrero’s apartment where he stayed approximately one week and where he intended to stay until the deceased left his home. This was, for all practical purposes, his dwelling.” 54 Mich App 652, 655.

For purposes of this discussion, it is assumed as proven that: the defendant and Diane Cohn were "in charge of’ the Cohn home in the owners’ absence; the defendant and Diane had moved into the home more than ten days before the party; the defendant had taken some personal belongings back to his Detroit home on December 30, 1973; and the defendant intended to return to his Detroit home on January 1, 1974, with Diane and spend the remainder of the "night” at that location. Finally, it is assumed that the defendant’s return to his Detroit home was not occasioned by the termination of his responsibility for the Cohn home but rather by an argument with Diane, the defendant having still retained his key to the Cohn home on the date of the offense. These facts are essentially indistinguishable with respect to the question of the defendant’s residence from the facts in the Smith case. In both instances, the defendants were temporarily residing in the home of another, while still in possession of a home which, could be considered each defendant’s permanent residence. Smith can be distinguished from the instant case, however, in terms of the nature of the attack which occasioned the need of the defendant to defend himself. Thus, this case may be resolved without reaching the issue whether defendant was in his "home” at the time of the stabbing.

In Smith, the defendant was confronted with an aggressor armed with a lethal weapon. But for the intervention of other persons in the apartment, the defendant would have been seriously injured by the second shot fired by the deceased. In the instant case, the trial judge found that the defendant acted unreasonably when he stabbed the deceased and that the defendant was not in sufficient danger to justify taking a life. This finding distinguishes the instant case from Smith.

A review of the Criminal Jury Instructions commentary on self-defense reveals the following principles of law. With regard to the duty to retreat, the commentary notes:

"In summary, the duty to retreat appears to be applicable only in cases amounting to se aut sua defendendo, that is, where the defendant may be somewhat at fault, such as in a sudden affray or when repelling a non-lethal assault. However, even in those situations, it does not apply when the defendant is in his own home, regardless of whether the deceased was jointly occupying the home. It does not apply to justifiable homicide, such as in repelling or preventing forcible felony, and it does not apply to cases involving the use of non-deadly force.” 1 CJI, p 7-197.

As to the duty to retreat where the defendant is repelling a nonlethal assault, Pond v People, 8 Mich 150, 176-178 (1860), states that:

" 'Before a person can avail himself of the defense that he used a weapon in defense of his life, he must satisfy the jury that defense was necessary; that he did all he could to avoid it; and that it was necessary to protect his own life, or to protect himself from such bodily harm as would give him a reasonable apprehension that his life was in immediate danger. If he used the weapon, having no other means of resistance, and no means of escape, in such case, if he retreated as far as he could, he would be justified.’
"A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life. But here, as in the other cases, he must not take life if he can otherwise arrest or repel the assailant; 2 Bish Cr L, § 569; 3 Greenl Ev, § 177; Hawk P.C., B 1, ch 28, § 23. Where the assault or breaking is felonious, the homicide becomes justifiable, and not merely excusable.
"Life may not properly be taken under this rule where thé evil may be prevented by other means within the power of the person who interferes against the felon. Reasonable apprehension, however, is sufficient here, precisely as in all other cases.” (Emphasis supplied.)

An application of these principles to the instant case supports the trial court’s verdict, regardless of whether defendant was in his "home” or not. The defendant was not the aggressor in the physical confrontation with Alan Goodman. Nevertheless, he was repelling a nonlethal assault: Alan Goodman had no weapon and the circumstances of the party would support the finding that the defendant was not in danger of losing his life or suffering serious bodily harm. As this Court found on the initial appeal, the opinions of the expert witnesses who testified on the defendant’s behalf need not "be accepted by the trier of fact as conclusive of the fact. 67 Mich App 490, 500. Further, even if the trial court believed and accepted the expert witness’s testimony, "such evidence would not be sufficient to establish the defense of self-defense. Not only must the defendant believe himself to be in great danger, but that belief must also be reasonable under the circumstances. People v Shelton, 64 Mich App 154; 235 NW2d 93 (1975).” 67 Mich App 490, 500-501. Believing that the defendant’s claimed perception of imminent death was not reasonable, the trial court found the defendant guilty of voluntary manslaughter.

The defendant’s contention as to a duty to retreat while "in charge of’ the Cohn home would likely have merit if he had been confronted with a lethal attack he had done nothing to provoke. The physical confrontation with Alan Goodman on January 1, 1974, was not lethal, however. The defendant thus could not rely on his claim of self-defense, since his belief that the fight would end in his death was not reasonable under the circumstances. This conclusion does not conflict with People v Smith, supra, where the defendant was confronted with an aggressor who twice discharged a shotgun in his direction and where the defendant only escaped being hit by the second shot when bystanders diverted the shotgun.

Michigan law on self-defense is unclear in some respects. The duty to retreat issue must be clearly separated from the more essential question whether defendant used only "such means as [were] necessary to repel his assailant”. 1 Gillespie, Mich Crim Law & Proc (2d ed), § 26, p 65. As explained by this Court in People v Godsey, 54 Mich App 316, 318-319; 220 NW2d 801 (1974):

"The plea of self-defense is based on necessity; the law will condone a defendant’s killing only where that act was, under the particular circumstances, the only available avenue by which the defendant could escape from a reasonably perceived threat of death or great bodily harm. As Justice Campbell noted in a leading case of Pond v People, 8 Mich 150, 173 (1860):
" 'Human life is not to be lightly disregarded, and the law will not permit it to be destroyed unless upon urgent occasion.’
"The general rule requiring retreat where practicable prior to utilization of deadly force is thus simply one facet of this overriding premise, that necessity is the basis of any plea of self-defense.
"To this retreat requirement there has been en-grafted a well established exception — which is beyond our power as an intermediate level appellate court to disturb — that a 'man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life.’ Pond v People, supra, 177.”
"The justification for this exception to the general rule is difficult to pinpoint. Justice Cardozo, in People v Tomlins, 213 NY 240, 243; 197 NE 496, 497 (1914), observed:
" 'It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home.’ See People v McGrandy, 9 Mich App 187; 156 NW2d 48; 26 ALR3d 1292 (1967).”
"Dean Prosser has suggested that the no retreat rule is based on 'an instinctive feeling that a home is sacred, and that it is improper to require a man to submit to pursuit from room to room in his own house.’ Prosser, Torts (4th ed), § 19, p 111, quoting from Restatement of Torts, Tentative Draft, Commentary to § 84.
"On a more pragmatic level it can be argued that one’s own dwelling is presumptively the safest haven from attack and retreat therefrom would correspondingly increase the risk of harm and thus be impractical and unnecessary.”

Accordingly, even if the defendant had no duty to retreat from the Cohn home, he acted unreasonably in stabbing Alan Goodman five times, in light of the fact that Alan Goodman was unarmed and only slightly larger than the defendant.

"Human life is not to be lightly disregarded, and the law will not permit it to be destroyed unless upon urgent occasion.” Pond v People, supra, 173.

The testimony presented a fact question which was resolved by the trial court. We find no merit in the defendant’s claim of self-defense and we conclude there was no reversible error in the trial court’s findings of fact in this case.

II. Whether the verdict was supported by sufficient evidence.

The defendant argues that the verdict herein was not supported by sufficient proof of every element of the offense. Although the defendant has not distinguished which elements of voluntary manslaughter were not supported by the evidence, we find that sufficient evidence was introduced at trial "which could justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt”. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). Several res gestae witnesses testified that, after the defendant was thrown onto the stairs, Alan Goodman was standing near the bottom step. The defendant then pulled his knife and leapt onto Alan Goodman, stabbing him 5 times. The trial court found that, at this point, the defendant intended to do serious bodily harm to Alan Goodman. Such a finding is amply supported by the above facts. When the defendant pulled the knife from his waistband, and jumped onto Alan Goodman, his act was the result of temporary excitement, by which the control of reason was disturbed, rather than any wickedness of heart, or cruelty or recklessness of disposition. People v Holmes, 111 Mich 364, 370; 69 NW 501 (1896). Thus, the defendant’s motion for directed verdict of acquittal, made at the close of the prosecutor’s proofs, was properly denied, and defendant was properly convicted of manslaughter.

III. Whether the defendant should be resentenced because his original sentence was premised on consideration of certain previous convictions obtained without the defendant having beneñt of counsel.

The defendant argues that convictions obtained without the defendant having benefit of counsel may not be considered by the court at time of sentencing. United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). People v Moore, 391 Mich 426; 216 NW2d 770 (1974).

In People v Moore, supra, 440-441, the Michigan Supreme Court ruled that:

"To invoke a Tucker hearing, the defendant must (1) present prima facie proof that a previous conviction was violative of Gideon [Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963)], such as a docket entry showing the absence of counsel or a transcript evidencing the same; or (2) present evidence that he has requested such records from the sentencing court and it has failed to reply or has refused to furnish copies of records within a reasonable period of time, say four weeks. Upon such presentation, either (1) or (2), the burden will then be upon the prosecutor to establish the constitutional validity of the prior conviction. Thus, if the prosecutor contends that the defendant waived counsel, the burden will be on him to show affirmative record evidence of waiver.
"If the prosecutor obtains and furnishes the judge and the defendant or his lawyer with photocopies of records establishing the constitutional validity of the prior conviction, the judge may decide the matter on the papers presented unless the defendant, on notice, shows cause to hold a hearing at which he is present. Unless the prosecutor furnishes such evidence within one month of the defendant’s motion, the judge shall set the matter for an early hearing and order the production of the defendant at the hearing.”

Materials were submitted to the trial court in September, 1978, which were intended to comply with the requirements of option (2) described above. The trial judge then noted that, while he had considered the misdemeanor convictions which were alleged to have been obtained without the defendant having benefit of counsel, they were not of sufficient weight to change the sentence he would have imposed if he had not considered those convictions. Accordingly, he denied the motion to resentence.

This Court was recently confronted with a similar case. In People v Watroba, 89 Mich App 718, 723-724; 282 NW2d 196 (1979), the defendant claimed that the sentencing judge had impermissibly taken into consideration certain constitutionally infirm prior convictions. At a hearing on the question, the trial court ruled that the sentence would not have been different in the absence of such convictions. On appeal, this Court ruled as follows:

"In order to initiate a Tucker proceeding, a defendant must present prima facie proof that the prior conviction was constitutionally infirm, People v Moore, supra, at 440-441, and that it was considered by the trial judge in sentencing, United States v Tucker, supra. However, reliance upon a faulty conviction does not necessarily mandate a different sentence. A careful reading of Tucker reveals that the concern in that case was not whether the prior convictions had been considered (for the record had already indicated they were), but whether the sentence imposed might have been different if the sentencing judge had known that the previous convictions had been unconstitutionally obtained. The Tucker case was remanded for reconsideration of defendant’s sentence.
"A Tucker hearing, then, determines whether the punishment might have been different absent consideration of infirm convictions. See People v Moore, supra, at 439. That determination was made in the case at bar.
"We are not unmindful of the language in People v Moore, supra, at 439, that,
" '[wjhile a harmless error rule might also be applied to a Tucker claim, from a practical point of view, * * * in most cases a judge can more readily resentence a convicted person than determine whether whatever consideration was given an invalid conviction at sentencing was harmless.’
and we agree that this remains the better procedure to follow in cases such as these. However, we read that excerpt as requiring, not necessarily an altered sentence, but rather a full re-evaluation of the record and circumstances in conjunction with defendant’s claim of improperly considered convictions, which proceeding could just as easily produce the same sentence as it could a different one.” (Emphasis in original.)

The defendant’s contentions on this issue cannot succeed in the face of the ruling in Watroba. The trial court clearly ruled that the ten-year-old misdemeanor convictions played no real part in its determination of the defendant’s sentence.

IV. Whether the defendant’s sentence should be vacated because premised in part on consideration of inaccurate and incomplete information as to charges which had been dismissed.

In Michigan, this Court has several times considered the inclusion of inaccurate information in a presentence report. In People v McIntosh, 62 Mich App 422, 448; 234 NW2d 157 (1975), the report contained information as to criminal activity not resulting in conviction. After an extended discussion of prior cases, this Court held that:

"GCR 1963, 785.12, leaves to the trial judge not only discretion to consider and weigh the contents of the presentence report, objective and subjective, but also discretion as to the means of implementing the due process duty of ascertaining, when the objection is raised, that the defendant is not prejudiced in sentencing by false information. United States v Sanders, 438 F2d 344 (CA 5, 1971). While not compelled to hold an evidentiary hearing, in the exercise of his discretion, he may do so. He may accept unsworn statements of the defendant. He may ascertain that the disputed matter is not relevant to his decision, or is of little weight, or could be safely disregarded without regard to its accuracy in light of other facts. There are many ways, in the exercise of his discretion, that he may meet the problem.”

The trial judge held an evidentiary hearing on the defendant’s contentions, and "ascertain[ed] that the disputed matter [was] not relevant to his decision, or [was] of little weight * * We hold that the trial judge did not abuse his discretion in so ruling.

V. Whether the defendant’s sentence should be vacated because the defendant was, in effect, deprived of his right of allocution by reason of the failure to permit inspection of the presentence report.

The law on a defendant’s right to inspect his presentence report is relatively clear. GCR 1963, 785.12, provides in pertinent part that:

"The sentencing court shall permit the defendant’s attorney, or if the defendant is not represented by counsel, the defendant, to inspect the presentence report. The prosecution must also be shown the report. Both parties must be given an opportunity at the time of sentencing to explain or controvert any factual representations in the presentence report.”

Quite literally, this provision does not require that a defendant personally review a copy of the presentence report, so long as his attorney is given the opportunity to review the report. The right of allocution at sentencing guaranteed by GCR 1963, 785.8(2) has application with respect to GCR 1963, 785.12 only to the extent that it requires that the court "give defendant and his attorney a reasonable opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence”. The latter requirement was met in the instant case.

In People v Moore, 60 Mich App 1, 4; 230 NW2d 281 (1975), this Court ruled that, as the court rule does not require the sentencing judge to disclose sua sponte the contents of the presentence report, a request to review the report at sentencing must be made on the record. See also, People v Worden, 91 Mich App 666, 685; 284 NW2d 159 (1979).

The rule in Moore, supra, operates to defeat defendant’s claims. Any request made by the defendant or his attorney must have occurred in chambers. People v Moore requires that the request appear on the record. As it does not so appear, the defendant’s claim is without merit.

VI. Whether the defendant was denied effective assistance of counsel on his initial appeal.

The defendant claims that, since his appellate counsel failed to raise the five issues presented in this appeal in his initial appeal before this Court, he was denied effective assistance of counsel on appeal.

The issue presented is whether the defendant was denied his right to appeal by reason of his attorney’s failure to raise the issues discussed in this opinion.

The right to effective assistance of trial counsel has been extensively analyzed in People v Degraf fenreid, 19 Mich App 702; 173 NW2d 317 (1969), and People v Garcia, 398 Mich 250; 247 NW2d 547 (1976). Where ineffective assistance of trial counsel is found, the defendant may be granted a new trial.

In the instant case, the defendant claims ineffective assistance of appellate counsel. While we agree that the defendant’s appellate counsel might have better represented the defendant if the self-defense/retreat and sentencing issues had been raised on the first appeal, the record is convincing that the issue of self-defense/retreat has little merit. The sentencing issues have been resolved by existing precedent. The failure to raise these issues does not reflect the commission of a serious mistake. Thus, the defendant was not deprived of effective assistance of counsel on the occasion of his first appeal. In any event, even if he had been deprived of effective assistance of counsel in his first appeal, the sole remedy would be the grant of a new appeal. Obviously, the new appeal for purposes of raising the issues not considered in the prior appeal has now taken place.

The defendant raises several issues on this appeal which were not raised by his appellate counsel on the initial appeal.

The defendant’s contentions as to his duty to retreat are without merit in light of the fact that, even if he had no duty to retreat, he acted unreasonably in repelling a nonlethal attack by stabbing his aggressor five times.

The defendant’s claim of insufficient evidence to support the trial court’s verdict is without merit.

The defendant’s request for resentencing has no validity for the reason that the allegedly constitutionally infirm convictions were not a material consideration in the length of the sentence and defendant’s claimed request to personally review the presentence report does not appear on the record.

The defendant’s claim that he was not given effective assistance of counsel on the occasion of his first appeal is neither valid nor meritorious.

Finally, we adopt the opinion in People v Oster, 67 Mich App 490; 241 NW2d 260 (1976), on the questions whether the examining magistrate abused his discretion in binding defendant over to the circuit court for trial on an open charge of murder and whether acquittal was mandated due to unrebutted expert opinion.

Affirmed.


author: Per Curiam.

text:
    PEOPLE v HALL
    Docket No. 78-2543.
    Submitted December 6, 1979, at Grand Rapids.
    Decided April 23, 1980.
    David J. Hall was convicted, on his plea of guilty, of second-degree murder, Berrien Circuit Court, William S. White, J. The question of defendant’s competency to stand trial was raised prior to his preliminary examination. After the preliminary examination was held, defendant was referred to the Center for Forensic Psychiatry and, pursuant to the evaluation undertaken at the center, adjudged incompetent to stand trial. A second hearing reaffirmed this finding, but after a third hearing defendant was found competent and bound over to circuit court on a charge of second-degree murder, to which he pled guilty. Defendant appeals. On appeal he contends that the circuit court lacked jurisdiction to entertain his plea because there had not been a valid preliminary examination. Held:

    Defendant’s preliminary examination was not valid because at the time it was held he was adjudged incompetent to stand trial. The state cannot proceed against an incompetent defendant. However, a defendant’s right to a preliminary examination may be waived. A defendant’s guilty plea is a reliable determination of factual guilt which waives the issue of the state’s capacity to prove that factual guilt. A preliminary examination is not an absolute prerequisite to a circuit court’s acquiring jurisdiction and where a defendant pleads guilty to an information without objection to the lack of a preliminary examination or a valid waiver of that statutory right he is deemed to have waived that right and cannot raise it as an issue on appeal. Defendant was competent at the time he entered his plea of guilty. By so pleading he waived his statutory right to a preliminary examination and the circuit court had jurisdiction to accept his plea.
    Affirmed.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 32, 62.
    [2, 3] 21 Am Jur 2d, Criminal Law § 495.
    [4] 21 Am Jur 2d, Criminal Law §§ 446, 447.

      1. Criminal Law — Competence to Stand Trial — Statutes.
    The state shall not proceed against a defendant, who is determined to be incompetent to stand trial, while he is incompetent (MCL 300.2022[1]; MSA 14.800[1022][1]).
    2. Criminal Law — Plea of Guilty — Nonjurisdictional Defects — Prior Proceedings — Waiver.
    Generally, a plea of guilty waives all nonjurisdictional defects in prior proceedings.
    3. Criminal Law — Plea of Guilty — Jurisdictional Defects — Waiver — Complete Defenses — Determination of Guilt.
    A guilty plea does not constitute a waiver of a jurisdictional defect or of a defect that amounts to a "complete defense” to a criminal charge; a "complete defense” is limited to those "complete defenses” that reach beyond the factual determination of a defendant’s conduct and, under this refinement of the rule, an issue that involves only the state’s capacity to prove a defendant’s guilt is still waived by a guilty plea because defendant’s guilty plea is a reliable determination of factual guilt which waives any issue of the state’s capacity to prove that factual guilt.
    4. Criminal Law — Plea of Guilty — Preliminary Examination — Waiver — Jurisdiction — Appeal and Error — Statutes.
    A defendant who pleads guilty to an information without objection to the lack of a preliminary examination or a valid waiver of that statutory right is deemed to have waived that right and cannot raise it as an issue on appeal; because a preliminary examination may be waived by a defendant, it is not an absolute prerequisite to a circuit court’s acquiring jurisdiction (MCL 767.42[1]; MSA 28.982[1]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Angela Baryames, Assistant Prosecuting Attorney, for the people.

      Rolf E. Berg, Assistant State Appellate Defender, for defendant on appeal.
    Before: Bronson, P.J., and Allen and R. M. Maher, JJ.
   Per Curiam.

Defendant was convicted on his plea of guilty to the charge of second-degree murder. MCL 750.317; MSA 28.549. He was sentenced to a prison term of from 40 to 80 years and now appeals by right.

Prior to defendant’s preliminary examination on an open charge of murder, defense counsel raised the question of defendant’s competency to stand trial. It was agreed by all parties that the preliminary examination would take place as scheduled but that the decision on whether to bind defendant over for trial would be reserved until defendant’s competency could be determined. It was also agreed that there would be no defect in the proceedings if the defendant was found competent. After the preliminary examination was held, defendant was referred to the Center for Forensic Psychiatry and, pursuant to the evaluation undertaken at the center, adjudged incompetent to stand trial. A second hearing reaffirmed this finding, but after a third hearing defendant was found competent and bound over to the circuit court on a charge of second-degree murder, to which he pled guilty.

On appeal defendant argues that the circuit court lacked jurisdiction to entertain his plea because there had not been a valid preliminary examination. We agree that defendant’s preliminary examination was not valid. Defense counsel raised the question of competency before the preliminary examination was held and when the defendant was evaluated he was adjudged incompetent to stand trial. The state may not proceed against an incompetent defendant. People v Parney, 74 Mich App 173, 176; 253 NW2d 698 (1977), MCL 330.2022(1); MSA 14.800(1022)(1).

The prosecution bases its argument on the plea-waiver doctrine, which holds generally that a plea of guilty waives all nonjurisdictional defects in the prior proceedings. See People v Ginther, 390 Mich 436, 440; 212 NW2d 922 (1973). The rule has been limited somewhat in recent years, so that defects which are similar to jurisdictional defects in that they affect the ability of the state to bring the defendant to trial on the offense charged are also not waived by a guilty plea. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976). Accordingly, a guilty plea does not constitute a waiver of a jurisdictional defect, or of a defect that amounts to a "complete defense” to the criminal charge. The "complete defense” rationale has in turn been limited to those "complete defenses” that reach beyond the factual determination of a defendant’s conduct. Under this refinement, an issue that involves only the state’s capacity to prove the defendant’s factual guilt is still waived by a guilty plea, even though if resolved in favor of defendant it would constitute a "complete defense” because the prosecution could probably not proceed. People v Riley, 88 Mich App 727; 279 NW2d 303 (1979), People v Hill, 86 Mich App 706; 273 NW2d 532 (1978). See Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195 (1975). This sort of case often involves claims regarding illegally seized evidence. If suppressed, the prosecution may be unable to prove its case, but since defendant’s guilty plea is a reliable determination of factual guilt, the guilty plea waives any issue of the state’s capacity to prove that factual guilt. The "complete defense” rationale has been applied to preserve those issues that concern the state’s authority (as opposed to capacity) to bring a defendant to trial. People v Alvin Johnson, supra (plea of guilty in prosecution barred by double jeopardy), People v Beckner, 92 Mich App 166, 169; 285 NW2d 52 (1979) (plea of guilty to charge brought under inapplicable statute).

Related to the plea-waiver doctrine is the longstanding rule that when a defendant pleads to the information without objection to the lack of a preliminary examination or a valid waiver of that statutory right, he or she is deemed to have waived that right and cannot raise it as an issue on appeal. People v Tate, 315 Mich 76, 79-80; 23 NW2d 211 (1946), People v Alexander, 72 Mich App 91, 97-98; 249 NW2d 307 (1976), People v McKinley, 32 Mich App 178; 188 NW2d 238 (1971), People v Rufus Williams, 23 Mich App 459, 467, fn 11; 179 NW2d 48 (1970), aff'd 386 Mich 277; 192 NW2d 466 (1971), 1 Gillespie, Michigan Criminal law and Procedure (2d ed, 1979 rev vol), § 297, pp 427-428. A preliminary examination is not an absolute prerequisite to the circuit court’s acquiring jurisdiction, as it may be waived by the defendant. MCL 767.42(1); MSA 28.982(1).

There is no dispute in the instant case as to defendant’s competency at the time he entered his plea of guilty. By so pleading he waived his statutory right to a preliminary examination and the circuit court had jurisdiction to accept his plea.

Affirmed.