*1 v BAINES PEOPLE 1978, 11, January Detroit. Docket No. 77-1058.Submitted 23, Decided May1978. probation of a crime when he was on for conviction Eric Baines robbery. probation charged A revocation hear- was with armed probation ing was revoked. He then and defendant’s was held robbery plea guilty of armed in Record- on his was convicted Gardner, Detroit, appeals J. Defendant Samuel C. er’s Court holding probation alleging revocation fundamentally unfair and a denial of due to trial was involuntary subsequent plea process because of the and his resulting duress. Held: probation engaging may revoked for A have his acquitted subsequent activity even if of the crime criminal may properly charged be revoked either before after trial on the new Affirmed. fundamentally would find it D. E. dissents. He to hold such a unfair chilling probationer’s right its effect on a
because of privilege against He would hold self-incrimination. postpone prosecutor hear- must either ing grant probationer limited after trial or until testify. Opinion of the Court Hearing— 1. Revocation Criminal Law—Probation—Probation Burden of Proof. engaging probationer may A have his revoked acquitted subsequent crime criminal conduct if even case; charged on the in the the burden prove guilty beyond a in a criminal trial is to the defendant is to in a doubt and reasonable prove guilty by preponderance of the evidence. the defendant [1, [3] 4] Am Jur Am Jur 2d, References Criminal Law §§ 2d, Criminal Law 567. for Points § 495. in Headnotes People v Baines Holbrook, Jr., Hearing— 2. Criminal Law—Probation—Probation Revocation Due Process—Self-Incrimination. *2 fundamentally probationer It is unfair to a to hold a revocation hearing prior subsequent to the trial on a offense where the revoking probation ñnding sole basis proba- for is a subsequent offense; tioner procedure committed the such a probationer’s chills process exercise of his to due and privilege against self-incrimination. Guilty—Appeal 3. Criminal Law—Plea of and Error—Due Proc- ess—Self-Incrimination. guilty plea rights grounded
A does not constitute a waiver of clause; process plea guilty the due thus a of does not waive proceedings error claimed in criminal which chilled a defend- rights privilege against ant’s and self-incrimina- tion. Hearing— 4. Criminal Law—Probation—Probation Revocation Immunity. Limited prosecutor option A postponing should have the of either hearing until after the trial for a subse- quent offense or with the revocation granting to trial but limited as to given testimony hearing in the earlier revocation where the basis for revocation of is the commission of a subse- quent offense; testimony criminal such or the fruits thereof should be admissible at a trial on the substantive charge only purposes impeachment or rebuttal testimony where the or the fruits thereof at testimony and the of the defendant on direct examina- clearly tion at trial are so inconsistent as to warrant admission probability to reveal to the perjury. trier of fact the Kelley, Attorney Frank General, J. Robert A. Derengoski, General, Cahalan, Solicitor William L. Prosecuting Attorney, Reilly Wilson, Edward Prin- cipal Appeals, Attorney, Petrella, and Daniel As- Prosecuting Attorney, people. sistant for the Finn, Freud, VanDusen & for defendant. 83 Opinion J., P.
Before: Allen, JJ. M. Kelly, plea- appeals from his Defendant Per Curiam. robbery. 750.529; MCL for armed conviction based appeal arguments focus on the on His MSA 28.797. timing proba- plea in this case and proceedings case. in another tion revocation previ- already for a was Defendant charged with the he was when ous conviction robbery. re- was That instant armed charge. The revocation of this a result voked as imposed a sentence was held and was pled this before the other case bargain part robbery of- of the A armed plea of for his in return the defendant fered to guilty promise in this case his sentence following imposed *3 the sentence not exceed would the that sentences and both kept bargain by concurrently. That run would judge. prosecution the trial and argues appeal, a de that where On allegedly contract violates fendant activity, engaging by a revocation in criminal hearing may the defendant held until after not be charges. While that new criminal tried on the is may reject may might acquitted sequence cases, in most we of events be the any suggestion that the revocation first. The defendant’s not be held if he had been revoked even have been charge robbery present if of the armed guilt beyond prosecution to establish failed guilt prepon by but did show reasonable doubt People Billy Williams, v of the evidence. derance (1975). App also See 67; 238 NW2d 66 Mich App People White, 239 NE2d 98 Ill (1968). People v Baines op Opinion the Court holding
Defendant states that 'unjustifiable first "creates tension’ be- rights tween the defendant’s right to the plea”. be free from duress when he enters a person already
He assumes that a who has following been sentenced a revocation of accept likely plea bargain is more a favorable impose punishment. which does not additional We agree assumption, with that but it does not follow that this conviction must be reversed for that plea bargains reason. All involve some considera- passing tion from the to the defendant in order to induce the defendant a full to waive pleas trial. Almost all defendants who enter they expect so do leniently because treated more plead they guilty. they nothing if If had gain by pleading guilty nothing to going to lose trial, most those defendants would hope they might choose some- acquitted. they how be plead guilty The fact that would not promise expecta- it not for
were pleas leniency tion of does not render their invol- untary. People App Kindell, 17 (1969), Guest, NW2d 909 500; 209 NW2d Defendant has raised a slightly different variation of the contention made many defendants the two cited cases and always accept- rejected others. It has been because plea bargaining impossible. ance would make The argument here, form of the it different but still has no merit. proceedings
We also note if the of the order *4 might very reversed, had been defendant well appeal arguing revocation, that his will to resist the had been overcome of his effects conviction sentence One or the other must come App 570 Jr., Holbrook, E. J. D. in the decision start we see no first and error hearing. with Affirmed. (dissenting). a Absent E. D. probationer’s preventing of a revoca- the use
rule hearing testimony trial, I at the tion fundamentally unfair to hold the is believe it hearing prior to on the the trial sub- revoking the sole basis offense when stantive probation commit- is a that the or not consti- offense. Whether ted the substantive necessary tutionally mandated, rule is such a probationer’s prevent of his a exercise a chill on privilege right process his of law and to due against self-incrimination. non-juris- general, plea guilty waives all
In
Johnson,
v Alvin
dictional defects.
(1976). Although
424,
440; 240 NW2d
pled guilty
to the substantive offense
plea
guilty
case,
not constitute
does
the instant
process
rights, "grounded in the due
waiver
supra,
Johnson,
444. A review of
Alvin
at
clause”.
transcript
plea taking
coun-
indicates defense
impact of the
of the
sel raised
issue
guilty plea
and that
revocation on
the issue
he intended to raise
counsel stated
rights
appeal.
of the
as-
of the nature
Because
444, I
serted,
Johnson,
conclude
Alvin
plea
waived his
has not
that defendant’s
appellate
review.
undisputed
although
revoca
It is
stage
prosecution, is not a
of criminal
tion
probationer
Gag
of law.
entitled
Scarpelli,
Ct
93 S
411 US
non
(1973), People
Rial, 399 Mich
L Ed 2d
(1976). According
Michi-
to the
249 NW2d
*5
People
575
v Baines
Jr.,
by
Dissent D. E.
J.
gan Supreme Court,
a
is entitled to
"more limited due rights”
than one ac-
crime,
Rial,
of
cused
a
agree
at 435. I
with
concurring
Justice
in Rial
opinion
Levin’s
there is a need
promulgate
procedures
rules and
defining
process protections
what due
must be
hearing.
afforded at a revocation
The
problem
the instant
case arises because
defendant’s
was revoked on
basis of
a finding that defendant
committed a substantive
offense before defendant was
to trial on
brought
the substantive
A finding
offense.
of
violation need
proven
a
"preponderance
Miller,
evidence”,
People
v
App
Williams,
387;
(1977),
258
People Billy
v
NW2d 235
(1975),
66
71;
Mich App
Other states have adopted
approaches
varied
propriety
holding a
to the trial when the sole basis for revocation is
commission of
In Georgia,
the substantive
offense.
Illinois, Pennsylvania
and Texas a defendant has
no right
delay
until
Dickerson
trial
held
offense.
State,
v
(1975),
885;
136 Ga
649
App
222 SE2d
State,
Jackson
v
App 659;
140
"A based commis- ordinarily not be initiated of another crime should sion prior showing However, upon a disposition the of crime has been probable cause that another of probationer, probation court by the committed proba- authority detain the discretionary should have of the new pending tioner a determination without bail charge.”1 1973, Commission on Advisory In the National Goals (Report Criminal Justice Standards 158-161) disapproved practice Corrections prior to trial on the holding hearings substantive offense concluded of a new should not be revoked for commission crime been tried and unless has Amaro, 79 People convicted of that See crime. (1974). 499; Misc 2d 358 Despite NYS2d 904 I these have been groups, recommendations have adopted unable to locate states which any them. subsequent split
Courts are
as to whether
offense
acquittal
dismissal
violation be
requires
finding
1
standard,
For a
Rubera
Common
criticism of
Mass
ABA
see
—
(1976).
wealth,
—;
355 NE2d
People
v Baines
vacated.
In Connecticut and North Carolina a
subsequent acquittal
requires vacation. State v
(1973),
Roberson,
165 Conn
"When a
condition of
alleged violation
a
the basis of an
probation,
explain his actions
probationer
who can
acquittal at a subse-
only by jeopardizing his chances of
understandably
feel that
quent
may
illusory than real and
opportunity to be heard is more
being deprived
liberty
of his
without one of
that he is
rudimentary
elements
fairness—a
the
meaningful
essential
speak
on his own behalf.”
chance
Coleman,
supra
at
Although noting that the most desirable method be to hold the trial before the revocation would hearing, supra,
Coleman,
13 Cal 3d at
533 P2d
gave
at
the California Court
option
adopting
following
an
rule:
accordingly
judicial
"We
declare as a
rule of evidence
upon timely objection
testimony
that henceforth
probationer
at a
held
disposition
charges arising
to the
out
alleged
proba-
of the
tion,
violation of the conditions of his
any
testimony,
evidence derived from such
against
probationer during subsequent
inadmissible
charges,
proceedings on the related criminal
save for
impeachment
proba-
purposes of
or rebuttal where the
hearing testimony
tioner’s revocation
or evidence de-
testimony
rived therefrom and his
on direct examina-
clearly
so
tion at the criminal
are
inconsist-
ent
to warrant
the trial court’s admission of the
as
hearing testimony or
its fruits
order to
probability
reveal
to the trier of fact
perjury
has committed
either the
or
Coleman,
hearing.”
supra,
13 Cal 3d at
889;
In 1977 the Rhode Island
adopted the Coleman
rule
the interest of the
justice.
DeLomba,
sound administration of
680-681;
117 RI at
" * * * we hold that henceforth the state must either alleged give hold the violation first and any use violator and derivative use testi- give, mony may postpone he the violation prac- judgment, until after the criminal In our trial. than our essentially tice so structured will be fairer DeLomba, 678-679; 117 RI at present procedure.” A2d at 1276. *9 App 83 Dissent D. E. has an "exclusion- the Rhode Island Court
While purpose ary” rule, effect are of both same. protected probationer/defendant is
Until a legislatively judicially rule, or such a whether fundamentally unfair created, I believe it precede the trial. allow rule case, no In the instant since exclusionary currently exists, I rule would vacate probation violation and the both the guilty plea to the courts. De-
and remand lower trial on fendant should afforded any offense before further proceedings.