Summary
holding that ex parte order amending probation to include tether requirement did not require due process hearing because tether placement is "not intended to form the bounds of confinement"
Summary of this case from Sallier v. MakowskiOpinion
Docket No. 143355.
Submitted October 18, 1993, at Lansing.
Decided December 7, 1993, at 9:10 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
State Appellate Defender (by Sheila N. Robertson), for the defendant on appeal.
Before: MICHAEL J. KELLY, P.J., and SHEPHERD and MURPHY, JJ.
Defendant appeals from the order of the circuit court revoking defendant's probation and sentencing defendant to thirty to sixty months in prison for the underlying offense of carrying a concealed weapon in violation of MCL 750.227; MSA 28.424. We affirm the order of the circuit court, but remand for correction of defendant's presentence report.
Defendant was sentenced to probation for three years after pleading nolo contendere to carrying a concealed weapon. Believing that defendant needed closer supervision, defendant's probation officer requested and received from the circuit court an ex parte order amending the order of probation to require defendant to be placed in the electronic monitoring program, also known as the "tether" program. Defendant refused to cooperate with the tether program, apparently believing that his due process rights were being violated. A probation violation hearing was held, at the conclusion of which the circuit court found that defendant had violated his probation. The circuit court subsequently sentenced defendant for the underlying offense.
Defendant contends that he was denied due process because his probation was revoked for failure to comply with the ex parte order requiring him to comply with the tether program. Defendant argues that because placement in the tether program is the equivalent of confinement, due process protections apply and the ex parte amendment of the probation order therefore was improper. We disagree.
An order of probation may be amended ex parte, and there is no requirement that the defendant be given notice or an opportunity to be heard before the amendment. See MCL 771.2(2); MSA 28.1132(2); People v Marks, 340 Mich. 495, 501; 65 N.W.2d 698 (1954); People v Kendall, 142 Mich. App. 576, 579; 370 N.W.2d 631 (1985); People v Graber, 128 Mich. App. 185, 190-191; 339 N.W.2d 866 (1983). In People v Jackson, 168 Mich. App. 280, 283; 424 N.W.2d 38 (1988), however, this Court distinguished ex parte orders that order confinement of the defendant. In Jackson, the defendant, while on probation, voluntarily entered a drug rehabilitation program that involved confinement at the rehabilitation center. His probation officer then obtained an ex parte order making completion of the program a condition of probation and, when the defendant attempted to leave the program, sought to have his probation revoked. This Court found that due process protections attached because the defendant was essentially being confined, resulting in a fundamental change in the defendant's liberty interest. Id.
In People v Granquist, 183 Mich. App. 343, 346-347; 454 N.W.2d 207 (1990), the Court concluded that the defendant in that case had escaped from prison while on an electronic tether. However, unlike the defendant in this case, the defendant in Granquist was being monitored by an electronic tether while on a prison furlough. The case does not stand for the proposition that any violation of curfew rules while on an electronic tether constitutes prison escape, but rather that the defendant's escape from an area under the surveillance of the Department of Corrections constituted prison escape.
Contrary to defendant's argument, however, the order placing defendant in the tether program in this case was not an order of confinement. Being monitored with an electronic tether is not the equivalent of confinement in prison. People v Smith, 195 Mich. App. 147, 151-152; 489 N.W.2d 135 (1992); People v Reynolds, 195 Mich. App. 182, 184; 489 N.W.2d 128 (1992); Granquist, supra, 346-347; see also People v Whitted, 199 Mich. App. 459, 460; 502 N.W.2d 328 (1993). Electronic tethers were not intended to form the bounds of confinement. Rather, the electronic tether is simply a surveillance device for monitoring a defendant's presence in his residence during curfew hours. Granquist, supra. Because placement in the electronic tether program did not constitute confinement, due process protections did not attach, and the circuit court was within its discretion entering the ex parte order.
Defendant also contends that his sentence is disproportionately severe. The sentencing guidelines do not apply to probation violations. Smith, supra, 149; People v Peters, 191 Mich. App. 159, 167; 477 N.W.2d 479 (1991). Although the second edition of the guidelines is the best barometer by which to measure the proportionality of a sentence, People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990), the guidelines should be used only as a starting point when determining a sentence for a probation violation. Smith, supra, 150; Peters, supra. After reviewing the record, we hold that the sentence was proportionate to both the seriousness of the offense and the circumstances of the offender. The trial court therefore did not abuse its discretion.
Defendant also contends, and the prosecution agrees, that defendant is entitled to have certain challenged information stricken from the presentence report. We also agree. When a sentencing court states that it will disregard information in a presentence report challenged as inaccurate, the defendant is entitled to have the information stricken from the report. MCL 771.14(5); MSA 28.1144(5); People v Fisher (After Second Remand), 190 Mich. App. 598, 603-604; 476 N.W.2d 762 (1991); People v Newson (After Remand), 187 Mich. App. 447, 450; 468 N.W.2d 249 (1991), vacated in part on other grounds 437 Mich. 1054 (1991). In this case, defendant challenged a number of alleged inaccuracies in the presentence report, and the circuit court indicated that it would not consider this information. Defendant, therefore, is entitled to have the information in question stricken from the report.
The order of the circuit court is affirmed, but the case is remanded to the circuit court so that the challenged information may be stricken from the presentence report. We do not retain jurisdiction.