People v. McDonald, Docket No. 44888

• Decision Date: 06 May 1980
• Docket Number: Docket No. 44888
• Citation: 97 Mich.App. 425,296 N.W.2d 53
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick McDONALD, Defendant-Appellant. 97 Mich.App. 425, 296 N.W.2d 53
• Court: Court of Appeal of Michigan — District of US

Page 53

296 N.W.2d 53

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick McDONALD, Defendant-Appellant.

Docket No. 44888.

97 Mich.App. 425, 296 N.W.2d 53

Court of Appeals of Michigan.

May 6, 1980.

Rehearing Denied Aug. 13, 1980.

Released for Publication Sept. 24, 1980.

[97 MICHAPP 427] Sheldon Halpern, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and CAVANAGH and ELLIOTT, ^* JJ.

PER CURIAM.

On June 14, 1977, defended pled guilty to criminal sexual conduct in the second degree, M.C.L. § 750.520c; M.S.A. § 28.788(3), and was sentenced to four years probation. In February, 1979, defendant was charged with second-degree murder contrary to M.C.L. § 750.317; M.S.A. § 28.549. That charge has since been dismissed. Pursuant to the policy of the original sentencing judge, a warrant was issued for probation violation following defendant's arrest on the new felony charge. Defendant's probation was revoked and he received a sentence of 10 to 15 years imprisonment. Defendant appeals from the revocation of probation and sentence.

I.

Defendant claims he was denied due process by the trial court's revocation of probation based upon conduct not charged in the written notice of probation violation. On February 28, 1979, a notice of probation violation was issued charging as follows:

[97 MICHAPP 428] "On 2-24-79 at 2:45 AM at the Nugget Restaurant, 14670 E. Eight Mile Rd, Detroit, the defendant engaged in assaultive behavior by striking James Honaker when the latter and his companions failed to vacate a booth as quickly as defendant demanded. During the altercation with defendant and codefendant Michael Whalen, the complainant sustained a stab wound to the chest resulting in his death. (Docket #79-01295, Examination 3-13-79)."

The brief of the defendant-appellant summarizes the widow's testimony at the termination hearing:

"She testified that she observed the defendant walk up to the waitress who was waiting on their table, say a few words, and point in their direction. Then the defendant came up to their booth and asked how long they would be. Her husband replied a few minutes. The defendant then left and minutes later approached the table again. He asked Mr. Honaker if he was having a good time to which Honaker replied 'yes, please leave us alone to finish our coffee'. Words were then exchanged, and according to the witness, defendant then struck Mr. Honaker in the face and knocked his glasses off. Honaker jumped up and a fight began. The two fought for a few minutes and the fight was broken up. Honaker, who had been brought back to the table, picked up his glasses, and threw them, and looking at the defendant said you broke my glasses. The two started fighting and wrestling again and went down on the floor. The next thing she observed was blood all over the floor.

"On cross-examination she further stated that she didn't see any weapon in the hands of her husband or the defendant, that other persons were within arms reach of the two as they were fighting, and that during the course of the second fight she saw another man behind her husband, holding him."

Other witnesses established that the fight resulting[97 MICHAPP 429] in Mr. Honaker's death occurred at approximately 2:30 a. m. and that the defendant was accompanied by other members of a motorcycle club of which the defendant had been president prior to being placed on probation. After the hearing the court stated that he found the defendant guilty of assaultive behavior and that he was out at an unreasonable hour in the company of "questionable associates".

The judge was wrong to the extent that he indicated that the late hour and the nature of defendant's companions were grounds for termination of defendant's probation. Although the conditions of probation did include a curfew and restriction upon his associations, the notice of probation violation did not adequately inform defendant that he would be called upon to defend against claims that he was out too late and in bad company.

However, there is no doubt that defendant's probation could properly be revoked for the conduct described in the notice and established by the testimony of the widow and others. A mandatory statutory condition of every probation is that the probationer shall not violate any criminal law of the state. Defendant's conduct was at least an assault and battery.

Because the defendant's assaultive behavior, as set forth in the notice of probation violation, was so clearly established and so out-weighed the other grounds stated by the judge it is unnecessary to remand this case for clarification by that judge or to consider his comment regarding additional grounds as reversible error. The clear notice and proof of the outstanding ground for revocation satisfies the requirements of due process.

II.

The answer to defendant's next contention is [97 MICHAPP 430] succinctly made in the appellee's heading to this section of its brief: "It is not necessary for the trial judge to expressly find that revocation of probation was warranted by the public interest when this was obvious where the defendant was involved in assaultive behavior during probation which resulted in the death of the victim by a stab wound". And it is obvious, we might add, that the judge considered revocation in the public interest from the sentence he imposed.

Although, as stated in People v. Rocha, 86 Mich.App. 497, 502, 272 N.W.2d 699 (1978), probation revocation involves two steps: 1) a factual determination of whether the probationer committed the claimed violation or misconduct and "2) a discretionary determination of whether the violation warrants revocation", neither that case nor any other Michigan case known to us requires an express finding on the record by the court that revocation is in the public interest. Such a finding is implicit in the court's decision to revoke probation.

III.

The final issue on appeal asks whether defendant was entitled to a hearing before another judge on the motion for disqualification of the assigned judge.

Judge Gillis had placed defendant on probation in 1977. On February 24, 1979, defendant was arrested on the second-degree murder charge. He was served with the notice, quoted above, and arraigned on the probation violation charge four days later. Preliminary examination on the murder charge was scheduled for Tuesday, March 13, and defendant was notified that the revocation [97 MICHAPP 431] hearing would be immediately after the examination. Apparently, the examination was adjourned to the 19th. Defense counsel moved for an adjournment of the revocation hearing, but that motion was denied. On March 15, a motion to disqualify Judge Gillis was filed and brought on for hearing before him. Basically, the motion contends that it was the judge's practice to obtain pleas of guilty by long-term probation sentence-bargains and, if the probationer is later charged with a new crime...