People v. Pratto

• Decision Date: 25 August 1980
• Docket Number: Docket No. 78-3509
• Citation: People v. Pratto, 298 N.W.2d 21, 99 Mich.App. 521 (Mich. App. 1980)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip Gerald PRATTO, Defendant-Appellant. 99 Mich.App. 521, 298 N.W.2d 21
• Court: Court of Appeal of Michigan

Page 21

298 N.W.2d 21

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip Gerald PRATTO, Defendant-Appellant.

Docket No. 78-3509.

99 Mich.App. 521, 298 N.W.2d 21

Court of Appeals of Michigan.

Aug. 25, 1980.

Released for Publication Nov. 5, 1980.

[99 MICHAPP 523] Vincent D. Giovanni, Southfield, for defendant-appellant.

[99 MICHAPP 522] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., [99 MICHAPP 523] E. Reilly Wilson, Appellate Chief Asst. Pros. Atty., A. George Best, II, Asst. Pros. Atty., for plaintiff-appellee.

Before MacKENZIE, P. J., and BASHARA and RILEY, JJ.

RILEY, Judge.

In 1975, defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305. The was sentenced to three years probation, assessed payment of $540 in court costs and ordered to obey certain conditions. In 1977, he was accused of violating his probation. The Wayne County Circuit Court subsequently revoked his probation and sentenced him to five to 15 years imprisonment. Defendant now appeals as of right, claiming that the court reversibly erred by accepting his plea of guilty to violation of probation without advising him of his right to a contested hearing and without obtaining an admission that he had violated his probation.

A trial judge need not specifically inform a defendant of his right to a contested probation hearing if the defendant is informed of this right through other means, i.e., through a bench warrant. See People v. Hooks, 89 Mich.App. 124, 279 N.W.2d 598 (1979), People v. Darrell, 72 Mich.App. 710, 250 N.W.2d 751 (1976). When a defendant is informed of this alternative to pleading guilty, is fully represented by counsel and admits his probation violation, we are satisfied that his procedural due process rights have been adequately protected. See Hooks, supra, Darrell, supra.

In the instant case, defendant was informed of his right to a contested probation violation hearing [99 MICHAPP 524] through the bench warrant. He received the full assistance of counsel and decided, after conferring with counsel, to plead guilty to violating probation. Defendant "admitted" his violation by his previous plea of guilty to larceny under $100, M.C.L. § 750.356; M.S.A. § 28.588, the offense which precipitated revocation of probation. He may not, now, collaterally attack that guilty plea. People v. Clements, 72 Mich.App. 500, 503-504, 250 N.W.2d 100 (1976).

After carefully considering the record below, we conclude that defendant's due process contention must fail.

Affirmed.

MacKENZIE, Presiding Judge (dissenting).

I would reverse and remand.

Defendant appeals as of right an order revoking his probation and sentencing him to five to 15 years imprisonment. His sole argument on appeal is that the trial court erred in accepting his guilty plea without advising him of his due process right to a contested hearing and without obtaining an admission from him that he had in fact violated probation.

While a defendant, accused of violating his probation, is not entitled to the full panoply of rights under the "guilty plea" rule, GCR 1963, 785.7, he does have the right to a contested hearing before pleading guilty. People v. Hardin, 70 Mich.App. 204, 206, 207, 245 N.W.2d 566 (1976), construing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

Certain panels of this Court have disagreed regarding what must appear on the record to satisfy this requirement. It is now clear that the [99 MICHAPP 525] defendant need not be directly informed by the trial judge of his right to a contested hearing, as long as he is in some manner made aware of that right. People v. Brooks, 91 Mich.App. 624, 626, 283 N.W.2d 817 (1979). In Brooks, the Court held that the record must disclose that the defendant was indeed aware of that right. Notwithstanding, other panels have held the defendant's rights were adequately safeguarded where he was served with a bench warrant mentioning his right to a violation hearing, People v. Darrell, 72 Mich.App. 710, 713, 250 N.W.2d 751 (1976), or where, under the totality of the circumstances, the defendant was given sufficient notice of the probation violation and, fully represented by counsel, admitted her violations to the Court, People v. Hooks, 89 Mich.App. 124, 129, 279 N.W.2d 598 (1979).

In the instant case, defendant was served with an order to show cause why the probation order should not be revoked and terminated. However, that document did not inform defendant of his right to a contested hearing. Nor is it clear that defendant was served with a copy of the bench warrant which noted his right to a "violation hearing".

Further, although defendant was represented by counsel at the probation revocation hearing on March 1, 1978, and the sentencing hearing on March 10, 1978, on neither occasion did the judge inform defendant of his right to a contested hearing before pleading guilty.

Nor did defendant admit the substance of...