People v. Coleman , 74 Mich. App. 498 ( 1977 )

M. J. Kelly, J.

On June 28, 1973, defendant was placed on probation after being convicted by a jury of gross indecency between males, MCLA 750.338; MSA 28.570, and carrying a concealed weapon, MCLA 750.227; MSA 28.424. On August 25, 1975, defendant was sentenced to six months imprisonment for failure to pay a domestic support order. On October 14, 1975, defendant’s probation was revoked after defense counsel told the court that defendant wished to plead guilty, to failure to report bi-weekly, failure to maintain steady employment, failure to support his family, and failure to pay court costs. Defendant was sentenced to a prison term of two to five years and appeals the revocation of his probation, raising three assignments of error.

Defendant argues that the failure of the record to demonstrate that he was served with a copy of the warrant for probation violation requires reversal. Defendant signed a copy of the Petition to Revoke and Terminate Probation, which listed the charges against him, and a copy of the Order to Show Cause why Probation Order Should Not be Revoked and Terminated. Defendant now urges that an examination of the transcript shows that he was never furnished with a written copy of the charges contained in the probation violation warrant. That is not our reading of the transcript. The best that can be said is that the transcript is ambiguous as to whether in fact a written copy of the charges was served on the defendant in advance of the hearing.

The problem is this. The form purporting to show service is contained toward the bottom of the Order to Show Cause. The Order to Show Cause was set for October 14, 1975, at 9 a.m. We attach a copy of the Order to Show Cause marked Appendix "I”.

Apparently the officer who served the Order to Show Cause did not sign it and the defendant signed in the blank left for the officer. The time indicated was originally 2 a.m., but a.m. seems to have been crossed out and p.m. circled. We surmise that the hearing, although set for 9 a.m., did not take place until after 2 p.m. It is indicative of the looseness of the procedure that the form says defendant has a five-day waiting period which he is entitled to waive or to demand, yet the form is incomplete as to any activity thereon. It is certain that the hearing took place on the same day of the service, whether before or after.

Whether we believe that the defendant was in fact accorded due process¹ of law is not the question. We believe that defendant, represented by able counsel, wished to plead guilty and to try to persuade the court to be lenient on sentencing. Counsel asked the court to impose a six-month sentence and gave a detailed argument as to the reasons why. Counsel stated:

"I would, after talking to the defendant be willing to say that if the same conditions were placed upon the defendant, six months period of incarceration and/or a $500 fine could be imposed in this matter.”

But the argument was rejected by the sentencing judge.

Now the question becomes, how much record support is required by the Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973), and Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), progeny?

We believe that there is not sufficient record support for a knowing, understanding waiver of the defendant’s rights because he was not told on the record that he was entitled to a hearing on his probation violation, nor did he state on the record that he was pleading guilty and did not want a hearing. See People v Michael Brown, 72 Mich App 7; 248 NW2d 695 (1976). The state of the law in this area seems to be too far stylized along the formal guilty plea requirements of verbal confession by the defendant for us to say that the argument by his attorney constituted a waiver of all the due process rights outlined in the cases following Gagnon, supra and Morrissey, supra.

Furthermore the record is confusing as to the question of timely and sufficient notice to the defendant of the charges. People v Bell, 67 Mich App 351; 241 NW2d 203 (1976).

We are constrained to reverse this probation revocation, not on the merits,² but for lack of formal record support as to the due process requirements engrafted on the statute, MCLA 771.4; MSA 28.1134.

Remanded.

T. M. Burns, P. J., concurred.

1 Due process rights are what the court of last resort says they are (like the king in Alice in Wonderland).

2 We shuttle this back with every anticipation that a different result will not obtain on new hearing.