*1 v WEBB PEOPLE 1978, 5, at Detroit. Decided June Submitted Docket No. 77-2052. applied appeal for. 19, to Leave 1979. March breaking and charged of the crime with G. Webb was Homer offense, dwelling. occupied At the time of entering an the defendant was years to trial old. Prior was 17 pursuant given trainee status probation and later, year than one Act. Less Trainee to the Holmes Youthful had vio- department that the defendant probation petitioned the court for an probation and the terms of lated The trial terminating trainee status. the defendant’s order petition, the defendant’s granted court hear- him. No criminal case status and reinstated status. of the trainee ing to the revocation held was convicted, plea of on his Subsequently, was the defendant Court, charged, Wayne Leo guilty, Circuit William of the crime raising Cahalan, appeals, the issue of whether J. The defendant objection to subsequent guilty plea to the failure waived his hearing. Held: hold a revocation hearing before a defendant’s must be held 1. A Act can be revoked. the Holmes Youthful status under hearing was hold the of 2. The defect of defendant’s irrelevant underlying charge which the defendant nonjurisdictional waived The defect was not defect. not a challenge the defect. free to and the defendant was of on the revocation and remanded for a Reversed the defendant’s trainee status.
Bashara, hold that the defect dissented. He would [1, [2, [5] Right 3, 3, sentence, 1074. 4] 4] Am 21 Am 21 Am Jur to notice Jur 2d, parole, Jur References Criminal 2d, 2d, Criminal Law 568. Criminal Law conditional Law 495. for Points in § before pardon, § §§ 484, revocation of Headnotes or 495. probation. suspension 29 ALR2d People v Webb nonjurisdictional and was waived the defendant’s guilty. He would affirm.
Opinion op the Court — — 1. Criminal Law Probation Holmes Youthful Trainee Act — Hearings — — Revocation of Probation Statutes.
A must held before a defendant’s status be. (MCL under the Holmes Youthful Trainee Act can be revoked seq.; seq.). 762.11 et MSA et 28.853[11] Guilty — — — 2. Criminal Law Pleas of Factual Guilt Constitu- — tional Defects Waiver of Defects. guilty plea guilt A ais reliable admission of factual and removes subsequent guilt from attack the issue of constitu- however, concerning guilt; tional defects a does not constitute a waiver for those constitutional defects which are irrelevant to a defendant’s factual of the crime charged. — — 3. Criminal Law Holmes Youthful Trainee Act Youthful Hearings — — Trainee Status Revocation of Trainee Sta- Guilty — — — tus Pleas of Waiver of Defects Statutes. defendant, given youthful who has heen trainee status under Act, right the Holmes Youthful Trainee has a constitutional hearing prior a to the termination of his trainee status him; charges against reinstatement of criminal in the absence hearing, charges against of a the criminal him cannot be reinstated; therefore, where such a defendant has entered plea guilty charges of which were reinstated after the status, youthful plea guilty revocation of his trainee the does preclude attacking not him from the conviction based on the failure to afford him a on the revocation of his trainee (MCL seq.; seq.). status 762.11 et MSA et 28.853[11] — — 4. Criminal Law Holmes Youthful Act Youthful Trainee — — Trainee Status Revocation of Pleas of Trainee Status Guilty — — Waiver of Defects Statutes. hearing prior The defect of to hold a to the revocation of a youthful defendant’s status as a trainee under the Holmes Youthful Trainee Act is irrelevant to the of underlying charge which was rein- upon youthful stated the revocation of the defendant’s trainee therefore, pled guilty; status and to which the defendant (MCL plea seq.; defect is not waived 762.11 et seq.). MSA et 28.853[11] 89 Opinion Court
Dissent P.J. — —Act Youthful 5. Criminal Law Holmes Youthful Trainee Guilty— — of Trainee Status Trainee Status Revocation — — Pleas Waiver of Defects Statutes. youthful trainee status as a The revocation of a defendant’s procedural purely under the Youthful Act Holmes therefore, and, such, clearly jurisdictional; where a as charge which to a defendant entered a revoked, reinstated when his challenge may any in the revocation not later defects nonjurisdictional procedure are waived because defects (MCL seq.). seq.; 762.11 et et 28.853[11] Attorney Kelley, General, Robert A. Frank J. Derengoski, General, Cahalan, L. Solicitor William Prosecuting Principal Attorney, Wilson, Edward R. Appeals, Attorney, Olson, and Neis L. Assistant Prosecuting people. Attorney, for *3 appeal. Ziemba,
Carl for defendant on and C. W. and Before: Bronson Simon, Jr.,* JJ. pled J. to the crime Defendant
Bronson, breaking entering occupied dwelling, an and 28.305, 750.110; and MCL prison right. MSA was sentenced to appeals years. term 4 to 15 He now as of years Defendant old the time of the two-years trial, Prior offense. to he was on probation pursuant to the Holmes Youthful 28.853(11) seq.; Act, 762.11 et MCL seq. probation year later, et Less one than department alleged that had violated defendant and probation petitioned the terms of his court terminating for an order tus. The trial defendant’s sta- granted petition,
court judge, sitting Appeals by assignment. * Circuit on the Court of People v Webb Opinion of the Court and reinstated the crim- trainee status defendant’s him. No was held inal probation the time was revoked. pled guilty. later, Three months prosecution rightfully concedes that before The under the Holmes a defendant’s can be revoked a Trainee Act Youthful Roberson, 22 held. must be question The sole 664; 177 NW2d subsequent guilty appeal is whether defendant’s objection his to the failure to hold the waived hearing. revocation
The of what constitutional defects are undergone has considera- waived years. In Tollett v Hender- ble revision recent son, 258; 1602; 36 L 2d 235 411 US 93 S Ct Ed (1973) sought plea-based , defendant to have his pled guilty he to an conviction overturned because illegally constituted indictment returned an grand Supreme jury. Court reaffirmed trilogy1 Brady traditional test set forth stating denied defendant relief that a only grounds could not be attacked on the that was pre- voluntarily intelligently made, thus cluding attacks based on constitutional defects not related to this issue.
The rather
in Tollett was
narrow test set forth
Blackledge
broadened, however, in the
v
defects bring into court to answer the defendant to charge Blackledge
brought against 20. him”. brought into more could no be Since a defendant Tollett) (as than indictment court on an invalid jeopardy, double on an indictment barred stating distinguished defect in Tollett Court properly cured have been that case could grand jury, defect while the constitutional selected Blackledge incurable. jurisdictional Blackledge defect incurable The from however, the final word test, has not been Supreme In Menna v New on this issue. Court 241; 46 L Ed 2d York, 61; 96 S Ct 423 US upon (1975), expounded Supreme further Court Blackledge. meaning The Court stated plea of factual admission was a reliable constitu- issue and and removes this concerning from subse- tional defects quent not, however, does attack. constitutional defects a waiver for those constitute guilt of to defendant’s factual which are irrelevant Journigan Duffy, charged. Accord, v the crime 1977). (CA 9, F2d 283 present
Applying case would this test to the preclude that defendant’s did seem attacking him his conviction based from hearing. A de- failure to afford him a revocation right to a fendant has a constitutional status and to the termination of his trainee hearing, in against the criminal the absence of a him reinstated. See cannot be Roberson, 177 NW2d give purpose tois for the revocation charges him the defendant notice of the determination, infor- reliable and make a mation, based on has committed a of whether he *5 55 v Webb by Bashara, P.J. Dissent Morrissey Brewer, 408 92 violation. See (1972). hearing 484 has 2593; 33 L Ed 2d S Ct nothing determining to do with underlying charge. Since the defect the irrelevant to hold the is on the of defendant’s the charge pled guilty, underlying to which he was plea.2 by the not waived reversed, is and the case conviction Defendant’s trial court for a remanded to the is of defendant’s trainee status. revocation Simon, Jr., J., W. concurred. C. (dissenting). respectfully I dis- majority rationalizes its decision anal-
sent. The
ogizing
placement
under
a revocation of
probation revo-
Youthful Trainee Act to a
Holmes
hearing.
agree.
I
cation
cannot
Act
is a strict
The Holmes Youthful Trainee
Legislature.
provides
It
that
creation of the
youth
judge may,
trial
with the consent of a
assign
person
ages
20,
17 and
between the
pro-
youthful
It
to the status of
offender.1
further
may
vides that
terminate the status at
the court
any
simply
time. The effect of such termination is
charges,
no informa-
reinstate
criminal
with
divulged pursuant
tion
to the Youthful
words,
In
Act to be considered as evidence.2
other
by using
probably
This same result could
reached
have been
Johnson,
Michigan Supreme
People v Alvin
Court’s decision in
(1976).
However,
the Federal cases
has been found of a crime. penalty. Probation violation assures a trary, To con- one whose *6 presumption every
is clothed with
of innocence.
nothing
appears
There
in the statute which
process,
majority question
violate due
nor does the
constitutionality.
its
The revocation of
as
purely procedural and,
trainee is
such,
as
clearly
jurisdictional.
bar,
In the
pled
principal
charge.
to the
Peo-
ple
Johnson,
v Alvin
guished. There, the defendant and was assigned then under the Youthful Trainee Act. having The revocation left defendant as been guilty, present found a fact not in the instant case. majority A review of the other cases cited they applicable convinces me that are not matter at hand.
I would affirm defendant’s conviction.