*1 App 72 v DARRELL PEOPLE op Opinion Hearings— Revocation
1. Criminal Law —Probation—Probation op Guilty. to Notice Probationer —Waiver—Plea probation charged probation and is with a defendant who is on A hearing right to revocation of his a violation must be informed hearing. by pleading guilty he waives and that Hearings— 2. Criminal Law —Probation—Probation Violation Right Notice — to Counsel. procedural rights probationer’s process to a A due defendant hearing adequately safeguarded probation where were violation providing upon the defendant a warrant served bench was probation violation defendant with notice clearly the notice him and where discloses to a advised him of his right was of his to and that counsel, represented and was in counsel. fact by Hearings— 3. Violation Criminal Law —Probation—Probation op Guilty for Bench Warrant— Waiver —Plea —Petition Notice. to know- unreasonable infer that a defendant It is intelligently ingly waived his to a entering probation plea guilty to a a violation only the defendant violation where the notice to informing him of to a a for the for bench warrant defendant’s arrest signed by officer and directed ambiguous hearing, an reference and where contained receipt only is the of the defendant’s evidence allege nonreceipt appeal. failure defendant’s Reference for Points Headnotes 2d, seq. 562 et Jur Criminal Law § 21 Am [1-3] Darrell Opinion of the Court Wise, J. Appeal John M. Wayne, from Submitted 25818.) (Docket 1976, 5, at Detroit. October No. 9, Decided 1976. December *2 convicted, on James Darrell was his plea O. guilty, attempted breaking entering of an unoccupied placed was dwelling. Defendant probation. Probation revoked and sentence im- posed. appeals. Affirmed. Defendant Lazar,
John D. for defendant. Brennan, J., and Before: V. P. Bronson Bashara, JJ.
Bashara, Defendant from an appeals order of revoking the circuit his probation court and invok- ing sentence thereon.
It is defendant’s contention he was not advised of certain minimal to be afforded him at revocation before he pled guilty probation. to violation of placed
The defendant was on two years proba- Judge plea-based tion John Wise after convic- tion of attempted breaking entering of an 27, unoccupied dwelling on June 1974. April On pled guilty was convicted subsequent attempted of a offense of unarmed Judge 1975, Joseph 7, Rashid. On robbéry by May he for attempted was sentenced unarmed robbery. day brought That same before Judge Wise hearing. for revocation defendant, represented counsel. The that his had Thereupon, following been cancelled. colloquy place: took App 710 Opinion represent attorney an you
"The Court: Do want at you this time? Yes,
"The sir. Defendant: your to the violation of you plead "The Court: How do probation? Guilty.
"The Defendant: your you did violate way "The Court: In what tion? robbery.
"The Defendant: Armed Robbery "The armed? Court: Yes, "The Defendant: sir. plead guilty you
"The Court: And did to? what Attempted Robbery. "The Defendant: Unarmed fifteen-year offense. "The Court: That’s a "The Defendant: Yes. Judge you
"The Rashid Court: Were before this morn- ing on that? Yes,
"The Defendant: sir. you jurisdiction "The Court: And left the of the state *3 didn’t you? Wyoming, and went to Yes, "The Defendant: sir. you apprehended?
"The Court: Is that where were Yes, "The Defendant: sir. you And were brought
"The Court: extradited and back? Yes,
"The Defendant: sir. you[r] sentence? "The Court: What was Four and "The Defendant: a-half to fifteen. Well, evidently you proba-
"The did Court: violate the you were convicted tion order because and sentenced So, already Robbery for an offense of Unarmed. I’m probation, going your having to have to revoke there of it. been a violation up-to-date probation report, supplemen-
"I have an Department report, by they the Probation tal because Judge morning’s out for Rashid for this made one report having With the sentence. been date, right I brought will sentence him now. attorney]: "Mr. Howarth That will be [Defendant’s fine, probation report Honor. I have read the your this People 713 Darrell v Opinion^of morning gone it with the I have over Defendant found it to be accurate.” Appeals
Three Michigan recent Court cases have held that a must be informed of right his and that waives that Hardin, People v pleading guilty. 70 (1976), People v 204; App 245 NW2d (1976), Allen, 465; 248 NW2d App 71 Mich Brown, 7; App 248 NW2d (1976).
A bench warrant was issued May served upon the provided It defendant. defend- ant with notice of as well as stating as follows:
"Wherefore, YOUR PETITIONER PRAYS that a Bench Warrant be apprehension issued for the detention of said pending by this court to determine or whether not said tion order shall (Emphasis supplied.) be revoked.” clearly discloses the notice the defendant advised him of his to a hearing. The record also reveals the defendant counsel, and was in fact represented by counsel.
Prior to the revocation hearing the defendant had been sentenced for attempted unarmed rob- bery, one violation-of-probation It charges. does not appear defendant had basis any for, of, or intention contesting charge. More- over, his present attorney was to advise the de- *4 fendant of any procedural further steps may have wished to take. circumstances, the totality
Under of the we conclude that the defendant’s process proce- due dural were adequately safeguarded within App 710 72 Bronson, by Hardin, Allen, supra, supra, requirements the Brown, supra. Affirmed. Brennan, concurred. J.,
V. J. P. (dissenting). I would reverse. I do inferred from the reasonably not think it can be aware before us that charges his to a pleading guilty. violation as an alternative the I to be accept appears major cannot what that defendant premise majority opinion, of the receiving the right upon learned of this charges of violation. listing for bench warrant the language quoted by As the suggested by is "violation phrase which contains majority pe- contained in a hearing”, language warrant, directed to a tition for a bench piece of signed officer. While this by since it paper probationer, is served on a normally contains the of violation which receive, one required may tioner law to it assume that a question whether is reasonable to portion of the probationer always would read to him. which its terms is not directed language quoted by More importantly, give not the advice majority would Brown, 7; 248 required by People v App 72 Mich Hardin, (1976), NW2d (1976). cases re- 204; Those App 245 NW2d of his be informed quire that a as an alternative pleading to his ambiguity is a result guilty. The difference is at best nebulous "hearing”, term convey information expected can never be *5 v Darrell by Bronson, Dissent precision "jury trial”, of a term as with the such example. for
Despite ambiguity rejected term, the of the we the claim in that the Brown revocation fully probationer the be described to or any type procedure that be "check list” instituted. given informality We relative concluded that the procedures, flexibility revocation information to that he had a a pleading guilty a as an alternative to context, would be sufficient. In that a expected at least could to understand be that if he plead guilty, declined to prove someone would have to the him at some sort evidentiary hearing. present case, contested to the In the contrary, may the fact that defendant have "hearing” petition read the word warrant could not be relied much more in the for bench
upon conveyed to have him than information to that he would judge. soon be before a knowingly
The inference that intelligently waived his on the rendered even by more unreasonable the lack evidence in this copy record that defendant ever received of the petition petition for warrant. bench While the for May bench warrant is dated the bench printed paper, itself, warrant on the same is un- signed. cause, An order to show directed to defend- response presumably ant, issued, to the petition for bench warrant. That order is dated May 7, 1975, and orders defendant to show cause at 9:30 a. m. on same It also date. orders copy be served the defend- signed by ant and/or in order to blanks and contains to be person serving papers on prove unsigned. service. The blanks are There is no evidence on this record that either App 710 petition was in fact or order to show cause defendant. presumes majority the defendant re- does not claim since ceived appeal. nonreceipt, ground reversal, on this for reversing Certainly *6 on the recommend I would not nonreceipt is not raised. issue where basis presume thing, quite however, to on It is another except failure defendant’s of no evidence basis appeal allege nonreceipt that he fact did on to portion petition, read a he in fact receive was not directed its terms from the understand and that he would pe- hearing” phrase on that contained "violation tition that he had a plea
charges, be waived which would guilty. My that it is unreasonable to conclusion knowingly and intelli- infer that gently waived I would reverse. violation.