People v. Rial

249 N.W.2d 114, 399 Mich. 431

• Court: Michigan Supreme Court
• Decided: December 31, 1976
• Docket: Docket Nos. 57094, 57095, (Calendar Nos. 4, 5)
• Status: Published

Opinions

Per Curiam.

Defendants’ appeals were among the 114 transferred to our Court on May 28, 1975. 394 Mich 776 (1975). After our decision in Guilty Plea Cases, 395 Mich 96; 235 NW2d 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 pled 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 US 778, 782; 93 S Ct 1756; 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. See also, People v Pickett, 391 Mich 305; 215 NW2d 695 (1974).

Defendants’ reliance on MCLA 768.35; MSA 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. MCLA 771.4; MSA 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, at 488. (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 probation under the law. Morrissey, supra, at 490.

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 they pled guilty, nor do they allege that they were unaware that probation, in lieu of sentencing, was purély a matter of grace, and not of right. MCLA 771.4; MSA 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 Williams, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred.

1 Footnotes omitted. Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972).

2 "Whenever any person shall plead guilty to an information filed against him in any court, it shall be the duty oí the judge of such court, before pronouncing judgment or sentence upon such plea, to become satisfied after such investigation as he may deem necessary for that purpose respecting the nature of the case, and the circumstances of such plea, that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered and order a trial of the issue thus formed.”