People v. Hardin

• Decision Date: 20 July 1976
• Docket Number: Docket No. 23947
• Citation: People v. Hardin, 70 Mich.App. 204, 245 N.W.2d 566 (Mich. App. 1976)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesse James HARDIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 566

245 N.W.2d 566

70 Mich.App. 204

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesse James HARDIN, Defendant-Appellant.

Docket No. 23947.

Court of Appeals of Michigan.

July 20, 1976.

Released for Publication Oct. 1, 1976.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John J. Rae, Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and KAUFMAN and QUINNELL, ^* JJ.

J. H. GILLIS, Presiding Judge.

On February 25, 1974, defendant was placed on two years probation after pleading guilty to possession of heroin. M.C.L.A. § 335.341; M.S.A. § 18.1070(41). In November of 1974, defendant was rearrested and charged with violation of probation. At a March 3, 1975, hearing defendant admitted violating four of the terms of his probation. He was then sentenced to 2 to 4 years in prison, and appeals as of right.

At the March 3, 1975, hearing, defendant was called before the judge and orally advised of the specifics of the four alleged probation violations. Defendant then told the judge that he understood the charges. The judge addressed the defendant as follows:

'The Court: Now, you may admit to these charges or you may deny them, and so I am going to ask you this question. Do you admit to these charges and are you willing to talk to the court about what should be done if I should find you in violation of your probation?

'The Defendant: Yes.'

The judge then found defendant guilty of violation of probation. The record reveals that at no time during this hearing was defendant ever advised that by pleading guilty he was waiving his due process right to a hearing on the alleged probation violations. See Gegnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

On appeal, defendant argues that before a judge may accept a plea of guilty to probation violation, that judge must advise defendant of the due process rights to which he is entitled. Defendant argues that he must be informed of the full panoply of rights set out in GCR 1963, 785.7, the 'guilty plea' rule. We are unpersuaded by this contention. To require that defendant be advised of the GCR 1963, 785.7 rights in a probation revocation setting would lead to an anomalous situation in which a defendant would be advised that he is waiving rights that he does not possess. Compare GCR 1963, 785.7(1)(g) with Gagnon, supra, 411 U.S. at 786, 93 S.Ct. at 1761--1762, 36 L.Ed.2d at 664. We do think, however, that in order to insure that a defendant's admission of probation violation is 'knowing and voluntary' prior to the court's acceptance of the plea, it is necessary that the defendant be at least advised of his due process right to a hearing.

In Gagnon the United States Supreme Court announced that a defendant must be accorded certain minimal rights in order that a probation revocation meet the standards of due process. Specifically, the Court held that minimum due process requirements for a probation revocation hearing include:

'(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 of lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole.' Gagnon, supra, 411 U.S. at 786, 93 S.Ct. at 1761--1762, 36 L.Ed.2d at 664.

These rights have been recognized and enforced by this Court. See People v. Blakely, 62 Mich.App. 250, 233 N.W.2d 523 (1975); People v. Henry, 66 Mich.App. 394, 239 N.W.2d 384 (1976); People v. Smith, 66 Mich.App. 639, 239 N.W.2d 431 (1976); People v. Bell, 67 Mich.App. 351, 241 N.W.2d 203 (1976).

Michigan has been at the forefront of those jurisdictions that hold that a defendant may not plead guilty to a charged offense unless that defendant has been informed of the constitutional rights he is thereby waiving. See People v. Butler, 387 Mich. 1, 195 N.W.2d 268 (1972); People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972); Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975), GCR 1963, 785.7. We think that the same holds true in the probation revocation setting. As our Supreme Court stated in Jaworski:

"'A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be 'an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void."' People v. Jaworski, 387 Mich. 21, 30, 194 N.W.2d 868, 872 (1972), quoting from Boykin v. Alabama, 395 U.S. 238, 243, fn. 5, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

We think that the record must show that a plea is 'voluntary and knowing' regardless of whether the plea is to a criminal charge...