People v. Kitley, Docket No. 19130

• Decision Date: 24 February 1975
• Docket Number: No. 2,Docket No. 19130,2
• Citation: 59 Mich.App. 71,228 N.W.2d 834
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David KITLEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 834

228 N.W.2d 834

59 Mich.App. 71

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David KITLEY, Defendant-Appellant.

Docket No. 19130.

Court of Appeals of Michigan, Division No. 2.

Feb. 24, 1975.

Released for Publication May 12, 1975.

Charles G. Gibbons, Hillsdale, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lawrence L. Hayes, Jr., Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and KAUFMAN and O'HARA, ^* JJ.

ALLEN, Presiding Judge.

On November 30, 1973, the trial court found that defendant had violated an order of probation to which he had been previously sentenced for a conviction of unlawfully driving away an automobile. M.C.L.A. § 750.413; M.S.A. § 28.645. On the same day, the trial court sentenced defendant to 2 1/2 to 5 years in prison.

The sole question on appeal was whether or not defendant knowingly and intelligently waived his right to be represented by counsel at his probation-revocation proceeding. Both parties agree that a probationer at a revocation proceeding has the right to counsel. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). See also People v. Marshall, 16 Mich.App. 578, 168 N.W.2d 480 (1969). The trial court had the duty to advise defendant of his right to be represented by counsel, either appointed or retained. People v. Brown, 17 Mich.App. 396, 169 N.W.2d 522 (1969). It is our duty to determine whether the trial court properly apprised defendant of his right to counsel and whether defendant made a knowing and intelligent waiver thereof.

On November 20, 1972, defendant pled guilty to unlawfully driving away an automobile. M.C.L.A. § 750.413; M.S.A. § 28.645. At the time of his plea, defendant was 17 years old and was represented by appointed counsel. On December 11, 1972, defendant received a sentence of 18 months probation, with the first 90 days to be served in the county jail. Also, defendant was assessed $150 costs.

On November 6, 1973, defendant pled guilty to using a motor vehicle without authority but without intent to steal, contrary to M.C.L.A. § 750.414; M.S.A. § 28.646. This plea was taken in the Livingston County Circuit Court. On November 23, 1973, a probation agent of the Hillsdale County Circuit Court petitioned for a bench warrant and probation violation hearing on the grounds that defendant had pled guilty to the above offense and that he had failed to pay the costs previously assessed. The trial court signed an order for a writ of habeas corpus, and defendant was ordered to appear at the probation revocation hearing.

The probation revocation hearing was held November 30, 1973. Portions of the proceedings relevant to the problem at hand are reprinted below:

'The Court: * * * I advise you that you are entitled to a hearing on this matter and, just as you were when you were first before the court, we appointed an attorney at substantial expense to the county, to represent you. If you want a hearing and if you are without funds with which to employ an attorney, we will appoint one for you.

'On the other hand, if you want an attorney and you have or can obtain the funds for an attorney, we will give you an opportunity for a hearing at a later date.

'Do you wish an attorney in connection with this matter of violation of probation?

'Defendant Kitley: I don't know. The judge in this other county--'

Defendant then tried to explain what had occurred in Livingston County, and said that while he was present while a companion had 'hot-wired the car', defendant lacked intent to steal the car. The trial judge asked defendant if he was currently serving a sentence in Livingston County. Defendant replied that he was, and acknowledged the fact that he had failed to pay the costs on the grounds that someone in the probation department had 'okayed it'. The trial court then said:

'Number one, I am concerned with whether you want an attorney to assist you in this probation violation charge or whether you do not.'

Defendant replied, 'I don't believe so'. The court then questioned defendant as to his participation in the other offense and his failure to pay the costs, and then sentenced defendant to 2 1/2 to 5 years in prison. On December 26, 1973, the trial court denied defendant's motion for a rehearing.

It was said in People v. McKinley, 383 Mich. 529, 536, 176 N.W.2d 406, 409 (1970), that 'waiver, as that term has been repeatedly defined by this Court, is the intentional relinquishment or abandonment of a known right'. McKinley noted the provision arising out of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), that the court is to 'indulge every reasonable presumption against waiver of constitutional rights', and that the issue 'of whether there has been an intelligent and knowing waiver must depend upon the facts and circumstances of each particular case'. McKinley, supra 383 Mich. at 536, 176 N.W.2d at 409. See also People v. Carlton Brown, 23 Mich.App. 528, 538, 179 N.W.2d 58, 63 (1970), lv. den., 383 Mich. 800 (1970), which noted 'a strong presumption is raised against a waiver of fundamental rights by an accused'.

It has been held that defendant did not make a knowing and intelligent waiver of his right to counsel where he was given no advice at all regarding his right to counsel at a probation-revocation proceeding. People v. Coffman, 83 Ill.App.2d 272, 227 N.E.2d 108, 109 (1967), involved a situation in which the trial court failed to provide defendant with any advice regarding his right to counsel, and merely asked whether defendant wanted a hearing and whether the allegations in the notice of probation violation were true. See also People v. Hernandez, 14 Mich.App. 741, 166 N.W.2d 58 (1968), involving a similar absence of advice. Although there was some advice given in our case, we must determine whether defendant's waiver was knowing and intelligent.

Factors to be considered when deciding whether defendant had made a knowing waiver of his right to counsel are defendant's age, education, prior criminal experience, mental state, financial condition, and the various factors, pressures or inducements which led him to admit the allegations against him without the assistance of counsel. Anno.: What constitutes waiver of right to counsel by minor accused, 71 A.L.R.2d 1160, 1162, footnote 2.

At the time of his first guilty plea, defendant was 17 years old, and was obviously no more than 18 at the time of the probation-revocation hearing. The record reveals that defendant was unemployed, and that he did not have a high-school diploma. The order for writ of habeas corpus was signed November 27, 1973, and the revocation hearing was held November 30, 1973, only three days later. During the proceedings, the trial judge noted that at defendant's previous court appearance, 'we appointed an attorney at substantial expense to the county', a statement which perhaps conveyed to defendant that his right to counsel was not absolute and that it was in fact a burden on the county.

While the instant factual situation was not as severe as that found in Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957), we find that case to be of some assistance to our problem. The 17-year-old frightened defendant in that case was held not to have made a knowing and effective waiver of his right to counsel where it appeared that mob violence was imminent due to the...