People v. Jackson

• Decision Date: 12 August 1975
• Docket Number: Docket No. 20629
• Citation: 63 Mich.App. 241,234 N.W.2d 467
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy JACKSON, Jr., Defendant-Appellant. 63 Mich.App. 241, 234 N.W.2d 467
• Court: Court of Appeal of Michigan — District of US

Page 467

234 N.W.2d 467

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy JACKSON, Jr., Defendant-Appellant.

Docket No. 20629.

63 Mich.App. 241, 234 N.W.2d 467

Court of Appeals of Michigan.

Aug. 12, 1975.

Released for Publication Nov. 4, 1975.

[63 MICHAPP 242] James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

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

Before R. B. BURNS, P.J., and BASHARA and KELLY, JJ.

BASHARA, Judge.

Defendant was convicted of delivery of cocaine ¹ on August 6, 1973, and was sentenced to 2 years on probation. On December 7, 1973, defendant's probation officer, Mr. Love, petitioned for a bench warrant for the arrest of the defendant to show cause why probation should not be revoked. The petition alleged:

'1st. That he has violated the First Condition of probation by being apprehended by Niles Police Officer Carl Lowell in the act of Breaking and Entering * * * on the 6th day of December 1973; which charge is pending.

'2nd. That he has violated the Sixth Condition of [63 MICHAPP 243] probation by associating with Jeffery Lee Finley on 12--6--73, a person having a criminal arrest record.'

On December 10, 1973, a revocation hearing was held. The proceeding was opened by the reading of the above quoted petition. Love then asked defendant if he was Leroy Jackson and if he received a copy of the charges. Defendant responded affirmatively to both questions. Love asked no other question and presented no other evidence. The trial judge conducted the remainder of the hearing.

The trial judge asked the defendant if he wished to present an explanation or a defense to the charges. He informed the defendant that he was entitled to representation by counsel and if he could not afford counsel, one would be appointed at public expense. He further informed the defendant that in the alternative he could represent himself. The defendant refused counsel explaining to the court that if given an opportunity he could 'half way straighten this (matter) out'.

The court asked the defendant to explain the arrest for breaking and entering. The defendant testified that he was not involved in the incident, but admitted at the time of his arrest that he was with Jeff Finley. The defendant admitted that he was aware that Finley had a prior arrest record. However, defendant testified that he was under the mistaken belief that his probation prohibited only association with convicted individuals and not arrested individuals.

The trial judge refused to find a violation of the first condition pending a final disposition of the matter. On the sixth condition the trial judge determined that the defendant's probation prohibited association with individuals with known arrest records, and that the defendant knew the [63 MICHAPP 244] difference between an 'arrest' and a 'conviction'. Accordingly, the defendant was found in violation of the sixth condition of probation and his probation was revoked.

Defendant raises four issues on appeal, of those raised only two necessitate discussion. ² They are: (1) does the failure to afford a defendant a preliminary hearing on his probation violation mandate an automatic reversal, and (2) did the defendant knowingly and intelligently waive his right to counsel.

The United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held that a parolee faced with termination of parole is entitled to a preliminary hearing and a final revocation hearing with certain due process requirements ³ where (1) there was no statute or case law requiring a hearing prior to revocation,[63 MICHAPP 245] ⁴ (2) the revocation hearing was conducted by an administrative agency, ⁵ (3) a substantial time lag existed between the arrest and the determination to revoke parole, ⁶ and (4) the parolee was arrested at a place distant from the state institution to which he was returned before a final decision on termination was made. In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the United States Supreme Court perceived little difference between parole and probation revocation proceedings and extended the Morrissey due process requirements to probation revocation proceedings.

It is clear that the revocation procedures set out by the United States Supreme Court in Morrissey and Gagnon, supra, were not intended 'to create an inflexible structure' for revocation procedures. Morrissey v. Brewer, supra, 408 U.S. at 490, 92 S.Ct. at 2604, 33 L.Ed.2d at 499. Nor were such procedures intended 'to foreclose the States from holding both the preliminary and the final hearings at the place of violation or from developing other creative solutions to the practical difficulties of the Morrissey requirements'. Gagnon v. Scarpelli, supra, 411 U.S. at 782, fn. 5, 93 S.Ct. at 1760. In line with this reasoning a number of jurisdictions have held that there are certain situations where a preliminary hearing need not be conducted. ⁷

[63 MICHAPP 246] The Michigan procedure is distinguishable from the procedures attacked in Morrissey and Gagnon, supra, which require the 'minimal inquiry' preliminary hearing requirement. 2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 791, p. 1005 discussed the Michigan procedure for revocation of probation pursuant to M.C.L.A. § 771.4; M.S.A. § 28.1134. ⁸ Under this procedure a probation officer [63 MICHAPP 247] files a petition with the court alleging a probation violation. If the probationer is not in custody, the judge determines whether probable cause exists to believe that the probationer has violated one or more of the conditions of probation. In the event probable cause exists a bench warrant is issued for the probationer's arrest. Upon apprehension the probationer is brought before the court at the 'earliest opportunity'. A similar judicial warrant procedure has been held to satisfy the preliminary hearing requirements of Morrissey and Gagnon, supra. Singletary v. State, 290 So.2d 116 (Fla.App.1974).

In conjunction with a preliminary determination of probable cause, Michigan requires a revocation hearing which far exceeds the minimal due process requirements set forth in Morrissey and Gagnon, supra. 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 [63 MICHAPP 248] 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 probation violation and the hearing thereon. People v. Pickett, 391 Mich. 305, 215 N.W.2d 695 (1974), People v. Moore, 55 Mich.App. 139, 222 N.W.2d 64 (1974).

We believe that this alternative procedure does not violate Gagnon or Morrissey. 'Although Gagnon and Morrissey 'mandate' two hearings--preliminary and final--those decisions dealt with administrative revocations of parole or probation. We deal here rather with judicial revocation of probation where procedures and processes differ and where a decision is made by the repository of 'due process'--the courts.' Moore v. Stamps, 507 S.W.2d 939, 951 (Mo.App.1974). We hold that Michigan's judicial warrant procedure coupled with the strict due process requirements of the revocation hearing is constitutionally equal or superior to the preliminary 'minimal inquiry' hearing and final revocation hearing procedure required by Morrissey and Gagnon.

Our next consideration is whether the defendant knowingly and intelligently waived his right to counsel. The record discloses the defendant refused counsel after the trial judge clearly advised him of his right to counsel, either retained or appointed.

Affirmed.

1 M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b).

2 Defendant's contentions that he should have received credit for time successfully served on probation were expressly rejected by our Court in People v. Lacy, 54 Mich.App. 471, 221 N.W.2d 199 (1974). We are in total accord with Judge Allen's opinion in People v. Lacy, supra, and decline to further discuss the issues.

3 Preliminary Hearing requirements:

a) Hearing before independent administrative officer;

b) Notice of hearing, charges, and purpose of the hearing prior to the hearing;

c) Right to present evidence by probationer;

d) Right to confront and cross examine adverse witnesses by probationer (unless hearing officer determines that informant would be subject to risk of harm if his identity was disclosed);

e) Summary of hearing;

f) Decision maker's statements of reasons for finding probable cause;

Final Revocation Hearing...