People v. Lawrence

90 Mich. App. 73 (1979) 282 N.W.2d 247

PEOPLE
v.
LAWRENCE

Docket No. 78-1132.

Michigan Court of Appeals.

Decided May 2, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Assistant Prosecuting Attorney, for the people.

Stephen A. Seman, for defendant on appeal.

Before: D.F. WALSH, P.J., and T.M. BURNS and D.E. HOLBROOK, JR., JJ.

PER CURIAM.

Defendant was placed on probation after pleading guilty to attempted larceny in a building, MCL 750.360, 750.92; MSA 28.592, 28.287. Two of the conditions of her probation were that defendant enter and remain at Rubicon-Odyssey House and that she participate in an educational program approved by her probation officer. Ten days after being placed on probation defendant left Rubicon-Odyssey House, apparently because the employees there were pressuring her to go to Utah to have and give up the baby she was then carrying.

The issue in this case is whether a defendant who was not represented by counsel at the revocation proceeding may seek reversal and a remand from a probation revocation proceeding where no timely notice of the charges was given to defendant but she admitted one of the charges. On the facts of this case we answer yes and remand for further proceedings.

Defendant was arrested on a bench warrant charging a violation of probation based on her refusal to stay at Rubicon-Odyssey House or participate in an educational program. Defendant was brought before the circuit court where the charges were read to her by an assistant prosecuting attorney. The record shows that no notice was served before the hearing began. After defendant was handed a copy of the charges, the court informed her of her right to counsel and her right to a hearing if she was to contest the charges. Defendant stated she would not need an attorney and admitted she had left Rubicon House. The court accepted defendant's statement as a plea of guilty to the first charged violation of probation. The entire proceeding filled less than seven pages of transcript.

There is no doubt that a defendant is entitled to receive the statutorily required^[1] notice of alleged violations sufficiently in advance of scheduled court proceedings to afford a reasonable opportunity to prepare. See, e.g., People v Gulley, 66 Mich. App. 112; 238 NW2d 421 (1975), lv den 396 Mich. 850 (1976), People v Gillman, 71 Mich. App. 374; 248 NW2d 553 (1976), People v Radney, 81 Mich. App. 303; 265 NW2d 128 (1978). A majority of one panel has concluded that this right may be waived by admitting the violation. People v Bell, 67 Mich. App. 351; 241 NW2d 203 (1976), lv den 397 Mich. 807 (1976).

The defendant in Bell was represented by an attorney and contested only one of two alleged violations. Even though the majority found a waiver of timely notice on one charge, the case was reversed and remanded because no timely notice had been given on the charge which was contested. Judge DANHOF would have reversed and remanded on both charges for what he perceived to be a due process violation based on a lack of an intelligent waiver of the right to timely notice. 67 Mich. App. 351, 355.

We agree with the analysis of Judge DANHOF in Bell. Although a case-by-case analysis provides little guidance for trial courts, it does allow this Court to identify possible abuses in an area which has such great significance to individual defendants. The present case is indicative of a problem greater than merely failing to serve timely notice. The defendant here appeared in court without an attorney,^[2] was read the notice of violation, handed a copy of that document and then asked to plead. Still expressing concern over her unborn child, she admitted facts which would constitute a violation of probation. A reading of the transcript can lead to no other conclusion than that she did not understand the significance of what she was doing. In short, the implied waiver of timely notice was not intelligently or voluntarily given.

Neither this Court nor the Supreme Court has found it necessary to impose a check list of rights for probation revocations on the circuit courts. People v Rial, 399 Mich. 431; 249 NW2d 114 (1976). We do not intend to do so here. However, we are not required to affirm a proceeding which appears unjust. The defendant did not waive her right to timely notice of the charges by admitting one of the violations on the facts presented by this record. A lack of notice vitiated the voluntariness and intelligence of the subsequent waivers of the right to counsel and the right to a hearing.

The order revoking defendant's probation is set aside and this cause is remanded to the trial court without prejudice to conduct a proper hearing or other proceedings after defendant is again given timely notice of the alleged violation.

D.F. WALSH, P.J. (dissenting).

I must dissent. Due process requires that a person charged with violation of probation must be given sufficient notice to permit adequate preparation for a hearing in a contested case. People v Gulley, 66 Mich. App. 112; 238 NW2d 421 (1975), lv den 396 Mich. 850 (1976). It is my strong conviction, however, that there is no mandatory due process requirement that a period of time elapse between the service of notice of probation violation and a truly voluntary and knowing plea of guilty to the violation.

In this case, before allowing the defendant to make any statement as to whether she was guilty or not guilty of the violation, the court carefully explained to the defendant that she had a right to be represented by an attorney, that, if she could not afford an attorney, the court would furnish one for her and that she was entitled to a hearing in court on the probation violation charges. The court then asked the defendant if she understood what he was telling her and she responded, "Uh-huh". To make certain that the defendant understood the court then explained these rights a second time and again asked the defendant if she understood him. The defendant replied, "Yes, I understand."

The court then asked the defendant if she wanted an attorney and she answered that she did not. The court asked if the defendant wanted to have a hearing, and she said, "No". Finally the court asked, "Are you going to plead to the charges now?" The defendant said, "Yes", and then entered her plea of guilty.

In People v Rial, 399 Mich. 431; 249 NW2d 114 (1976), both defendant Rial and defendant Beene entered pleas of guilty at their initial hearings on the prosecutor's petitions for revocation of probation. Both had been advised of their right to counsel and to a formal hearing on the charges. In upholding the guilty pleas the Court stated:

"Each defendant was advised by the court that if he wished to contest the alleged violations of his probation, a hearing would be held to determine the truthfulness of the charges, and he would be entitled to counsel at the hearing. Given the limited nature of these hearings, we hold that both defendants were adequately informed of their procedural and constitutional rights." People v Rial, supra, 436.

In my judgment the defendant in this case clearly understood what the court was telling her and knowingly and voluntarily entered her plea of guilty. I find no violation of defendant's due process rights in the court's acceptance of that plea.

I would affirm.

NOTES

[1] MCL 771.4; MSA 28.1134.

[2] The trial court's warnings were apparently sufficient to avoid reversal on that score alone. People v Rial, 399 Mich. 431; 249 NW2d 114 (1976).