People v. Rial

• Decision Date: 01 May 1976
• Docket Number: 5,Nos. 4,s. 4
• Citation: 399 Mich. 431,249 N.W.2d 114
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peggy RIAL and George Beene, Defendants-Appellants. ,
• Court: Michigan Supreme Court

Page 114

249 N.W.2d 114

399 Mich. 431

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Peggy RIAL and George Beene, Defendants-Appellants.

Nos. 4, 5, May Term, 1976.

Supreme Court of Michigan.

Dec. 31, 1976.

Stephen M. Wheeler, Kalamazoo, for plaintiff-appellee.

Robert L. Adams, Galesburg, for defendants-appellants.

PER CURIAM.

Defendants' appeals were among the 114 transferred to our Court on May 28, 1975. 394 Mich. 779 (1975). After our decision in Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975), we ordered that the defendants' appeals be jointly submitted and argued to consider the applicability of GCR 1963, 785.7 to probation violation proceedings. We conclude that subrule does not apply.

Defendant Rial plead guilty to possession of marijuana in 1973 and was placed on probation for two years. Defendant Beene pled guilty to attempted larceny in a building in 1972 and was also placed on probation for two years.

Bench warrants were subsequently issued for the arrest of both defendants for having violated the terms of their probations. At their initial hearings, both defendants waived their rights to appointed counsel and to a formal hearing on the charges. Both admitted that they had violated the terms of their probations. In each case, the trial judge revoked probation and subsequently sentenced the defendant pursuant to the original conviction.

Defendants argue that, prior to the court's acceptance of a waiver of the right to a formal probation violation hearing and to an attorney, the court must advise a defendant of his rights at such a hearing and also of the possible penalty involved if probation were revoked. Defendants urge this Court to equate a formal probation violation hearing with a trial by imposing restrictions and standards on a defendant's admission of probation violation which are similar to those imposed upon a plea of guilty under Rule 785.7.

In Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973), the United States Supreme Court stated:

'Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer, supra.' ¹

Defendants' analogy to a trial and a guilty plea is unsound. Probation revocation is not a stage of a criminal prosecution. In these proceedings we deal not with the procedural rights of an accused in a criminal prosecution, but with the more limited due process rights of one who is a probationer because he has been convicted of a crime. Gagnon, supra, at 789, 93 S.Ct. 1756. See also, People v. Pickett, 391 Mich. 305, 215 N.W.2d 695 (1974).

Defendants' reliance on M.C.L.A. § 768.35; M.S.A. § 28.1058 ² is also misplaced. We are not concerned with a plea of guilty in these proceedings. The guilt of the defendants had already been determined. The scope of a probation violation hearing is limited. The procedure is summary and informal, not subject to the rules of evidence or pleadings applicable in criminal trials. M.C.L.A. § 771.4; M.S.A. § 28.1134; Morrissey, supra. The hearing is designed to lead 'to a final evaluation of any Contested relevant facts and consideration of whether the facts as determined warrant revocation.' Morrissey, supra, 408 U.S. at 488, 92 S.Ct. at 2603. (Emphasis added). A formal hearing is not required if the probationer admits at a preliminary hearing the alleged violations, and those violations are found by the court to be reasonable grounds for revoking probating under the law. Morrissey, supra, at 490, 92 S.Ct. 2593.

Each defendant was advised by the court that if he wished to contest the alleged violations of his probation, a hearing would be held to determine the truthfulness of the charges, and he would be entitled to counsel at the hearing. Given the limited nature of these hearings, we hold that both defendants were adequately informed of their procedural and constitutional rights.

Defendants also contend that they were not advised of the possible penalty before waiving their rights to an attorney and to a formal hearing. Each defendant was aware that his probation could be revoked as a result of these proceedings. This 'penalty' is the direct result of a probation revocation hearing. What defendants actually argue is that the court should have again advised them of the possible minimum and maximum sentence which might be imposed following conviction for the crime to which they had originally pled. They ask this Court to rule that a waiver of their constitutional rights should not be accepted by the trial court until they again have been advised that if they have failed to comply with the terms of their probations, the court will sentence them for the crimes of which they were convicted. To adopt such a ruling would be to exalt form over substance.

Defendants do not allege that they were unaware of the penalty for the crime to which the pled guilty, nor do they allege that they were unaware that probation, in lieu of sentencing, was purely a matter of grace, and not of right. M.C.L.A. § 771.4; M.S.A. § 28.1134. They do not allege that, at the time they entered onto probation, they were unaware of all the terms and conditions thereof, including the penalty for violation. It would be unrealistic for this Court to believe that a probationer willingly complies with all the strict terms and conditions of his probation, including regular meetings with his probation officer, without being aware of what might happen should he refuse to comply with those terms and conditions.

Under these circumstances, and particularly in light of the nature of probation violation hearings, defendants' arguments must fail.

Affirmed.

KAVANAGH, C.J., and LINDEMER, COLEMAN, WILLIAMS, FITZGERALD and RYAN, JJ., concur.

LEVIN, Justice, concurring.

I agree that the statute ¹ and court rule ² governing acceptance of an accused person's plea of guilty to an information charging commission of a criminal offense do not prescribe the advice the judge should give a probationer before accepting a plea of guilty to a charge of probation violation. ³

In these consolidated cases, the judges advised each of the defendants of their right to counsel ⁴ and of the nature of the charge. They both waived counsel and pled guilty.

I write separately to speak to the need for promulgation of rules of procedure concerning probation violation proceedings and to express my apprehension that in the case of Peggy Rial the decision revoking her probation is inadequately supported by record evidence, an issue concededly not raised in her appeal; if the issue had been raised remand for supplementation of the record would minimally be required.

I

While it has been said that a probation revocation proceeding is 'not a stage of a criminal prosecution' ⁵ and that the procedures followed in such proceedings are more informal than at a trial, ⁶ the decisions of the United States Supreme Court, ⁷ of this Court and of the Court of Appeals have established minimum procedural requirements 'It is true the full panoply of rights constitutionally guaranteed in a criminal trial do not attach to these proceedings. However, it has been held an individual accused of violating his probation has the right to counsel, the right to produce witnesses, the right to notice of the charges against him, and the right to an opportunity to explain away the charges filed against him. We believe these cases indicate a minimum requirement that the hearing must be conducted in a meaningful way.' People v. Martin, 61 Mich.App. 102, 107, 232 N.W.2d 191, 194 (1975) (citations omitted)

'(T)he 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 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).' People v. Jackson, 63 Mich.App. 241, 247--248, 234 N.W.2d 467 (1975).

Although neither statute nor court rule expressly requires that a judge advise a person charged with probation violation of his right to a hearing, it cannot be doubted that a probationer is entitled to advice regarding his constitutional and statutory right to a hearing and the nature of that right. The very informality of the hearing makes it espacially important that there be advice and that it be transmitted in a meaningful manner. Most persons have at least a vague idea of what a trial is. Unless they have gone through the experience, few persons, even lawyers, will have any conception of the nature of a probation violation hearing.

On the same principle...