People v. Williams, Docket No. 22706

• Decision Date: 03 December 1975
• Docket Number: Docket No. 22706
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Edward WILLIAMS, Defendant-Appellant. 66 Mich.App. 67, 238 N.W.2d 407
• Court: Court of Appeal of Michigan — District of US

Page 407

238 N.W.2d 407

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Edward WILLIAMS, Defendant-Appellant.

Docket No. 22706.

66 Mich.App. 67, 238 N.W.2d 407

Court of Appeals of Michigan.

Dec. 3, 1975.

Released for Publication Feb. 17, 1976.

[66 MICHAPP 69] Musilli, Meyers & Murphy by Ralph E. Musilli, Detroit, for defendant-appellant.

[66 MICHAPP 68] Frank J. Kelley, Atty. Gen., Robert A. [66 MICHAPP 69] Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Angelo A. Pentolino, Asst. Pros. Attys., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and BASHARA and MAHER, JJ.

V. J. BRENNAN, Presiding Judge.

Defendant appeals the order of the Detroit Recorder's Court revoking his probation, alleging that the court employed an erroneous standard of proof for violation of probation and that one condition of probation violated the equal protection clause. ¹ We find his appeal without merit and affirm the order of revocation.

On October 22, 1972, defendant pled guilty to a charge of unlawfully taking and using an automobile. ² He was placed on 2 years probation by Judge Joseph Maher of Detroit Recorder's Court. A probation order, issued November 17, 1972, included a number of conditions of probation, those of most immediate concern being:

'1. That probationer shall serve first 6 months of probation period in Detroit House of Correction. ³ 2. That probationer shall pay the costs as follows: $150 * * *.

'All costs and restitution are payable thirty (30) days prior to expiration date of this order unless otherwise noted. * * *

'General Conditions of Probation:

[66 MICHAPP 70] 'A. Probationer shall not violate any criminal law of the State of Michigan or any ordinance of any municipality of the State, nor attempt to do so, nor make any preparation leading to the same.'

On June 1, 1973, a notice of probation violation issued, ⁴ stating:

'(1) On December 23, 1972, probationer escaped from the Detroit House of Corrections, no contact since that time.

'(2) Probationer has paid nothing on his $150,00 money assessment in the form of court costs.'

At the probation revocation hearing, August 9, 1974, defendant, with counsel present, admitted that he left Detroit House of Correction without permission after serving about thirty days. The court held that defendant violated his probation.

Although Michigan courts have never explicitly stated the standard of proof required in a probation revocation hearing, ⁵ the general rule appears to be that violation of a condition of probation need only be shown by a preponderance of the evidence. ⁶ The rationale for this standard is that a probation revocation hearing is not a part of a criminal prosecution and, thus, the state need not provide the full panoply of rights due a criminal defendant. Cf., Morrissey v. Brewer, 408 U.S. 471, [66 MICHAPP 71] 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parole revocation).

This standard of proof is to be applied whether the probation violation charged is deemed a criminal offense or the failure to fulfill a condition of the probation order. ⁷ Thus defendant's conduct, be it dubbed a criminal escape, or a failure to fulfill the condition of six months in the Detroit House of Correction, is to be judged by the preponderance of the evidence standard.

The sole question on review of the finding of violation of probation is whether the trial judge could find by a preponderance of the evidence that the probation order had been violated. Cf., Flat Hots Co., Inc. v. Peschke Packing Co., 301 Mich. 331, 336--337, 3 N.W.2d 295 (1942) (civil use of preponderance standard). We look to see if the revocation was 'based on verified facts' and if the trial judge's exercise of discretion was 'informed by an accurate knowledge of the (probationer's) behavior'. Morrissey v. Brewer, supra, 408 U.S. 484, 92 S.Ct. 2601.

Here, where the defendant, in the presence of counsel, admitted having left the Detroit House of Correction without permission, the judge could clearly determine that the prosecutor had proven his charge and that there were verified facts to support the revocation.

The second issue, concerning the probation condition requiring the payment of costs, ⁸ raises equal [66 MICHAPP 72] protection concerns. In particular, the defendant claims that the imposition of costs has invidious results in that poor probationers may have probation revoked more often than wealthier probationers. An equal protection argument very similar--concerning revocation of probation for failure to reimburse attorney's fees--was apparently unresolved in Fuller v. Oregon, 417 U.S. 40, 48 n. 9, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). That opinion, however, suggests that the probation condition of payment of money does not constitute an invidious distinction against the poor provided that the condition of repayment is imposed only on those who are able to pay. 417 U.S. 40, 48 n. 9, 53 n. 12, 94 S.Ct. 2116.

In Michigan, People v. Gallagher, 55 Mich.App. 613, 620, 223 N.W.2d 92 (1974), mandates that nonpayment of restitution cannot be grounds for revocation of probation if the defendant is unable to pay. Gallagher's logic applies to nonpayment of costs as well. The Gallagher holding satisfies the suggestion in Fuller that payment only be required when there is an ability to pay. A probation condition of payment of costs based on actual ability to pay will not violate equal protection.

Defendant contends that there was no inquiry of his ability to pay. However, it was incumbent upon defendant or his counsel to raise below the issue of inability to pay to gain the protection of the equal protection doctrine. We can find in the record no objection voiced to the requirement of costs. ⁹ Without giving the judge an opportunity to consider inability to pay, defendant cannot successfully [66 MICHAPP 73] appeal on this issue. People v. Double, 57 Mich.App. 633, 226 N.W.2d 594 (1975).

There is, however, an issue concerning the probation condition of payment of costs that troubles us. The probation order required that the $150 be paid 'thirty days prior to the expiration date of this order'. The expiration of the order was at the end of the two-year-probation period, November 17, 1974. The notice of violation was issued June 1, 1973 and the hearing was August 9, 1974, both dates being prior to the due date of the costs. The probation condition of payment of costs was therefore not violated as of the notice date or the hearing date. Defendant has not appealed on this issue, but we are concerned nontheless. If the but we are concerned nonetheless. If the and gave significant import to an erroneous finding that the condition was violated, we would be required to remand for a...