People v. Brown

• Citation: 248 N.W.2d 695,72 Mich.App. 7
• Decision Date: 20 October 1976
• Docket Number: Docket No. 25776--7
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Ray BROWN, Defendant-Appellant. 72 Mich.App. 7, 248 N.W.2d 695
• Court: Court of Appeal of Michigan — District of US

Page 695

248 N.W.2d 695

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Ray BROWN, Defendant-Appellant.

Docket No. 25776--7.

72 Mich.App. 7, 248 N.W.2d 695

Court of Appeals of Michigan.

Oct. 20, 1976.

Released for Publication Jan. 17, 1977.

[72 MICHAPP 9] John L. Thompson, Manistique, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Gifford, D. Smith, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and D. E. HOLBROOK, Jr., and WALSH, JJ.

BRONSON, Presiding Judge.

Defendant was placed on two years of probation on September 16, 1974, after pleading guilty to breaking and entering with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. On February 13, 1975, defendant was brought before the judge who had placed him on probation after having received written copies of three charges of violating the terms and conditions of his probation. Defendant admitted the violations, his probation was revoked, and he was sentenced to a term of from six to 10 years in prison. He now appeals as of right.

At the February 13, 1975, proceeding, defendant was advised that he had a right to counsel and that one would be appointed for him at public [72 MICHAPP 10] expense if he could not afford to retain counsel. Defendant replied that he did not desire counsel. The judge then read each charged violation to defendant, ascertained that defendant understood each charge, and asked defendant to plead to each charge. Defendant offered a plea of guilty to each charge and indicated that he understood that if his pleas of guilty were accepted by the judge, his probation could be revoked and he could be sentenced to a maximum of 10 years in prison. Defendant was not informed that he was entitled to a hearing on the charges to which he offered his pleas of guilty. His pleas were accepted and his probation was revoked.

On appeal, defendant argues that the failure of the trial judge to inform him of his right to a hearing on the charges of probation violation rendered his plea of guilty ineffective to waive his right to that hearing. He argues that a hearing on charges of probation violation may be waived only if the waiver is knowingly and understandingly made. We agree and reverse.

A probationer charged with violations of the terms and conditions of his probation is entitled to a hearing on those charges. Due process requires that this hearing include the following minimum features:

"(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and [72 MICHAPP 11] reasons for revoking (probation or) parole." Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973), applying Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), to probation revocation proceedings.

Michigan law does not limit the features of probation revocation hearings to those required by minimal due process. In the recent case of People v. Leroy Jackson, Jr., 63 Mich.App. 241, 247, 234 N.W.2d 467, 470 (1975), it was noted that the revocation hearing required in Michigan 'far exceeds the minimal due process requirements set forth in Morrissey and Gagnon'. The features of the probation revocation hearing required in Michigan were enumerated as follows:

'In Michigan the probationer must be served with written notice of the charges against him prior to the hearing. In re McLeod, 348 Mich. 434, 83 N.W.2d 340 (1957); People v. Wood, 2 Mich.App. 342, 139 N.W.2d 895 (1966). At the hearing the probationer is entitled to produce witnesses and evidence as well as to cross-examine and confront witnesses. In re Bobowski, 313 Mich. 521, 21 N.W.2d 838 (1946). The state must present proof of violation of the charges. People v. Myers, 306 Mich. 100, 10 N.W.2d 323 (1943). Evidence of the charge is the only factor to be considered in determining whether to revoke probation. People v. Sutton, 322 Mich. 104, 33 N.W.2d 681 (1948); People v. Elbert, 21 Mich.App. 677, 176 N.W.2d 467 (1970). There must be a record of the hearing that demonstrates the due process requirements have been satisfied. People v. Wood, supra. If the probationer desires, he is entitled to representation by counsel. People v. Kitley, 59 Mich.App. 71, 228 N.W.2d 834 (1975); People v. Hazen, 19 Mich.App. 576, 172 N.W.2d 860 (1969); People v. Brown, 17 Mich.App. 396, 169 N.W.2d 522 (1969); People v. Marshall, 16 Mich.App. 578, 168 N.W.2d 480 (1969). The probationer is entitled to an appeal as of right following determination of a probation violation on those matters relating to the [72 MICHAPP 12] probation violation and the hearing thereon. People v. Pickett, 391 Mich. 305, 215 N.W.2d 695 (1974); People v. Donald Moore, 55 Mich.App. 139, 222 N.W.2d 64 (1974).' Jackson, supra, at 247--248, 234 N.W.2d at 470--471.

It is thus apparent that we break no new ground by recognizing that this defendant had a constitutional right to a hearing on the charges of probation violation and that he could have required the state to prove the charges at that hearing. Defendant instead offered to plead guilty and acknowledged the truth of the charges. By so doing, he gave up his right to contest the charges at a hearing. The question with which we are faced is whether, to be effective, such a waiver must be made knowledgeably and understandingly. We hold that it does.

We recognize that not every waiver of a constitutional or statutory protection is required to be knowing and intelligent. ¹ Thus, consent, if voluntary, may validly be given to a search even where the subject of the search is not aware that he has a right to refuse consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975); People v. Lumpkin, 394 Mich. 456, 231 N.W.2d 637 (1975). This rule has prevailed despite the fact that consent to a search waives whatever rights the subject has under the Fourth and Fourteenth Amendments to the Federal Constitution and art. 1, § 11 of the State Constitution to prevent the police from conducting the search.

Other rights have been identified which can be waived effectively only where a standard amounting[72 MICHAPP 13] to 'an intentional relinquishment or abandonment of a known right or privilege' is met. ² This standard has been required for waiver of right to counsel by a criminal defendant or an alleged probation violator, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); People v. Hernandez, 14 Mich.App. 741, 166 N.W.2d 58 (1968); People v. Kitley, 59 Mich.App. 71, 228 N.W.2d 834 (1975), waiver by a criminal defendant of his right to examination and return by a magistrate, People v. Phillips, 383 Mich. 464, 175 N.W.2d 740 (1970), waiver by a convicted defendant of his right to appeal and appellate counsel, People v. McKinley, 383 Mich. 529, 176 N.W.2d 406 (1970), and waiver by a defendant of his right not to be twice placed in jeopardy. People v. Carlton Brown, 23 Mich.App. 528, 179 N.W.2d 58 (1970); People v. Alvin Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976). Similarly, a criminal defendant who wishes to plead guilty to a charged offense must first be informed on the record that his plea of guilty waives his constitutional right to a trial on the charges against him. Nor can he effectively waive that right to trial unless first informed of some of the rights and incidents of that trial, including his right to have a trial by jury, to confront his accusers, and to remain silent. Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975); People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972); People v. Butler, 387 Mich. 1, 195 N.W.2d 268 (1972).

We interpret these cases as requiring a knowing and intelligent waiver when the right involved is one designed to insure fundamental fairness to a defendant...