People v. Peterson, Docket No. 19746

• Decision Date: 23 June 1975
• Docket Number: Docket No. 19746,No. 2,2
• Citation: 233 N.W.2d 250,62 Mich.App. 258
• Parties: , 79 A.L.R.3d 1072 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billie Lee PETERSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 250

233 N.W.2d 250

62 Mich.App. 258, 79 A.L.R.3d 1072

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billie Lee PETERSON, Defendant-Appellant.

Docket No. 19746.

Court of Appeals of Michigan, Division No. 2.

June 23, 1975.

Released for Publication Oct. 6, 1975.

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

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

Before DANHOF, P.J., and D. E. HOLBROOK, Jr. and O'HARA, ^* JJ.

O'HARA, Judge.

This is an appeal of right from a plea of guilty to larceny from an automobile. M.C.L.A. § 750.356a; M.S.A. § 28.588(1). Defendant was sentenced to 180 days in jail, 160 immediately and 20 days when directed. No credit was given for the 14 days she had served at the time of sentence and she was placed on five years probation. ¹ Manifestly the sentence was infirm and the case must be remanded for resenting or the sentence corrected by this Court. We opt for the former because other issues are involved.

The main thrust of appellant's argument is that the conditions of probation are onerously unreasonable. Her counsel on appeal attacked them with a vigor and intensity which bespoke deep conviction. She characterized them as impossible of performance, impermissibly vague and constitutionally infirm as violative of due process.

Before addressing ourselves to the multiple assignments of error, we must again make clear that we are not a sentence review board.

We are not empowered to substitute our judgment for that of the trial judge on Lawful conditions of probation (People v. Higgins, 22 Mich.App. 479, 177 N.W.2d 716 (1970)) however much we may regard them as unduly harsh. Thus our discussion as to the conditions of probation will of necessity be more limited than appellant seeks.

In the sequence of assignments of error, the first is thus phrased in appellant's brief:

'APPELLANT'S PLEA OF GUILTY TO LARCENY FROM AN AUTOMOBILE WAS COERCED BY THE THREAT OF PROSECUTION ON A CHARGE FOR WHICH PROBABLE CAUSE TO BIND HER OVER DID NOT EXIST AND APPELLANT IS THEREFORE ENTITLED TO A NEW TRIAL.'

This is in a sense a two-pronged argument that is developed as follows. There was insufficient evidence adduced at the preliminary examination to justify binding appellant over on the original charge of unlawfully driving away a motor vehicle. M.C.L.A. § 750.413; M.S.A. § 28.645. Having thus been improperly bound over and thereafter tendering a plea of guilty to the offense of larceny from an automobile appellant was, in fact, or in legal effect, coerced into pleading guilty to the lesser charge. Appellant had no real choice. This being the case appellant claims that the assignment of error was raised to jurisdictional level. This being so her plea of guilty did not waive all error, but only all Non jurisdictional error. We are unable to agree with appellant's contentions. The fallacy in the position is the all too frequent confusion between a Want of jurisdiction and error in the Exercise thereof. See Buczkowski v. Buczkowski, 351 Mich. 216, 221--222, 88 N.W.2d 416 (1958). In this case the district judge had unquestioned jurisdiction over the offense charged and the persons charged therewith. If he Exercised this jurisdiction improperly the circuit judge was empowered to dismiss or remand. The misexercise does not strip either court of jurisdiction. See Justice Levin's discussion in Genesee Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 215 N.W.2d 145 (1974).

We find no jurisdictional infirmity. We follow the well-established rule that a plea of guilty waives all nonjurisdictional defects. People v. Potts, 45 Mich.App. 584, 207 N.W.2d 170 (1973). People v. Killingbeck, 49 Mich.App. 380, 212 N.W.2d 256 (1973).

The second question presented is:

'WHERE THE TRIAL JUDGE FAILED TO INFORM APPELLANT THAT PROBATION AS A SENTENCE CAN CONTAIN SEVERE RESTRICTIONS AND CONDITIONS WHICH IF VIOLATED CAN RESULT IN A MAXIMUM SENTENCE GREATER THAN THAT PRESCRIBED BY STATUTE, WAS APPELLANT'S PLEA NOT UNDERSTANDINGLY MADE AND MUST HER CONVICTION BE REVERSED?'

Discussion of this issue is fruitless. There is no case law directly in point cited. We can find none independently. If this requirement is to be written into our criminal procedure it will have to be done by the Supreme Court under its rule-making power, or possibly by the Legislature in the statute authorizing probation. We do not find the error claimed meritorious. ²

Third, appellant asserts that:

'APPELLANT'S GUILTY PLEA WAS NOT UNDERSTANDINGLY AND VOLUNTARILY MADE WHERE THE TRIAL JUDGE ELICITED FROM THE APPELLANT FACTS OF THE OFFENSE CHARGED BEFORE ADVISING HER OF THE CONSTITUTIONAL RIGHTS SHE WAS WAIVING BY ENTERING HER PLEA.'

People v. Snyder, 53 Mich.App. 249, 218 N.W.2d 770 (1974), is not controlling (even if it stands for what the appellant contends). The plea in Snyder was taken Before the new GCR 1963, 785. Appellant can't have it both ways. The Supreme Court has made a virtual straitjacket out of 785, Supra, as far as the trial bench and this Court is concerned. Its language must be followed literally. Failure to do so is reversible error. We are not disposed to laminate the former rule on the one presently in force. The claim of error is not meritorious. We find no requirement of sequence in complying with its provisions.

Issue four concerning the failure to grant jailtime credit was disposed of earlier. It was error, mandating remand for resentencing or correction at the appellate level. We stated the reason for our choice.

Assignment of error number five is concerned with the claim of vagueness to the constitutional level of denial of due process. Frankly, the issue concerns us. One term singled out for attack is 'anti-social conduct'. That term was both a condition contained in the order of probation and a statutory ground for revocation or termination of probation as set forth in M.C.L.A. § 771.4; M.S.A. § 28.1134. By itself, we agree it would be vague to the point of risibility for a prosecutor to file an information that 'so and so' on such and such a date did commit 'anti-social conduct' and expect an accused to plead to it. What is 'anti-social' in an exclusive club in a sedate suburb and what are perfectly acceptable mores in a lusty metropolitan gathering place can be as far apart as the poles. We have read, to the point of ocular exhaustion, cases from Maine to Texas and California to Florida. While we are somewhat apprehensive as to a probationer being sufficiently apprised of the conditions of probation when he is proscribed from engaging in antisocial conduct, ³ we cannot ignore the basic fact that many jurisdictions other than our own impose and sustain conditions on a probationer which, in our view, are no more objectionable in terms of due process than the complained-of provision here involved. ⁴ We add a caveat. If violation of this provision is charged the specifics of the antisocial conduct will have to be set out in concrete terms capable of understandable and definitive evaluation. Anything less would raise grave due process questions as to the adequacy of notice.

Assignment of error six challenges what is denominated the 'blanket search and seizure' provision in the order of probation. ⁵ It provides:

'That the person of probationer, and any and all premises and vehicles, owned or occupied by said probationer, shall be open to search at any and all times by the probation officer and by any law enforcement officers without a search warrant therefor.'

We strike it down. Probation is a matter of grace and rejectable, we think, at the option of the probationer. But it is not a Bill of Attainder ⁶ for the period of probation.

Probation or parole is certainly no more stigmatic than incarceration. Thus if there be any logic in law, a probationer is no less deprived of all constitutional guarantees than the one incarcerated pursuant to sentence. Our Supreme Court held:

'It could not be seriously urged that the search and seizure made by the officers without defendant's consent or without a search warrant could not, nor likely would not even have been attempted, had defendant been at liberty and his automobile been parked on his own premises. Defendant was not stripped of his civil rights and his constitutional safeguards merely because he was serving a sentence in the county jail for an unrelated misdemeanor. It would be a dangerous rule of law and an invitation to circumvent the constitutional guaranty against unreasonable search and seizure were the citizen convicted of a misdemeanor and in jail, possibly in default of payment of a fine to be stripped of all his civil liberties.' People v. Carr, 370 Mich. 251, 255, 121 N.W.2d 449, 451 (1963).

If this means standard forms must be revised or a portion thereof x'd out, so be it. Better that, than police state powers over all probationers. We readily concede that there is much authority to the contrary. Our research has uncovered many cases from other jurisdictions which sustained the same imposition of consent to warrantless searches and seizures as were here imposed. ⁷ However, the waiver of protection against unreasonable searches and seizures is so repugnant to the whole spirit of the Bill of Rights as to make it alien to the essence of our form of government.

We would not be understood by this holding to mean that one who accepts probation and consents to its terms cannot waive any constitutional rights. Many of these rights are waived daily in our criminal courts, the right to a trial by jury for example. They can be waived also as a condition of probation. But when the waiver is conditioned on the surrender of so hallowed a right, the so-called choice amounts to no choice at all. We hold the probationer's signed acceptance thereof was in legal effect coerced and thus rendered nugatory.

Assignment of error seven would strike down the...