People v. Allen

71 Mich. App. 465 (1976) 248 N.W.2d 588

PEOPLE
v
ALLEN

Docket No. 26943.

Michigan Court of Appeals.

Decided September 28, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training and Appeals, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

Jack J. Kraizman, for defendant on appeal.

Before: R.M. MAHER, P.J., and D.C. RILEY and R.M. RYAN,^[*] JJ.

PER CURIAM.

Defendant appeals his conviction for violation of probation. Finding serious errors in the proceeding below, we reverse his conviction.

Defendant was placed on probation after being convicted of arson in 1973. In 1975, he was charged with violation of probation after pleading guilty to attempted possession of heroin.

Defendant's plea to violation of probation was entered by his counsel, in response to the court's inquiry addressed to counsel. The court's failure to elicit the plea from defendant himself is all the more serious because of the lack of any indication in the record that defendant was aware of his right to a hearing on the charge of probation violation. While this Court has declined to require a "check list" procedure for guilty pleas to probation violations, it is essential that a defendant be informed that there is an alternative to pleading guilty.

"We, therefore, require * * * that defendant be told, on the record, that he is entitled to a hearing to determine his culpability for the alleged violation. If the defendant advises the court that he does not want a hearing and admits violation of probation on the record, the due process requirements are met." People v Hardin, 70 Mich. App. 204, 208; 245 NW2d 566 (1976).

This panel adopts the reasoning of Judge GILLIS in Hardin that led to the conclusion quoted above. Because we adopt Hardin's excellent due process analysis, we feel justified in disregarding the statment in Hardin that the opinion is to be given prospective application. The present defendant was not accorded his due process rights.

Since the record does not indicate that defendant was aware of the option of not pleading guilty and he did not personally admit violation of probation on the record, his conviction must be reversed.

Reversed and remanded.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.