Opinion
Docket No. 48846.
Decided December 16, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and Richard A. Pattison, Assistant Prosecuting Attorney, for the people.
Chari Grove, Assistant State Appellate Defender, for defendant on appeal.
Before: R.M. MAHER, P.J., and R.B. BURNS and D.F. WALSH, JJ.
Defendant was bound over for trial on a charge of breaking and entering an unoccupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. Pursuant to an agreement reached with the prosecution, defendant pled guilty to attempting to commit the charged offense. MCL 750.92; MSA 28.287. His plea was accepted, and he was sentenced, on July 25, 1977, to three years probation and ordered to pay a $100 fine and $200 in costs.
On February 26, 1979, defendant was brought before another judge of the same circuit court for a show cause hearing on a charge of nonsupport. Preliminary proceedings were being held in the judge's chambers at which defendant acknowledged being behind in his obligations. Defendant also informed those present that, after many months of looking, he that day had secured employment and was to start work the next day. The judge indicated that a formal hearing would be held in open court on the show cause order and that defendant might have to go to jail. Defendant apparently became frustrated and upset at the hint of jail, especially since he had just found a job, and began to shout obscenities as he rose and started to leave the judge's chambers. Help was summoned, and a police officer, working through the office of the Friend of the Court, arrived to find the defendant in the hallway still shouting at the judge. The officer told defendant that he could not leave, but, at the sight of the police officer, defendant ran to the end of the hallway where he turned and struck a karate-type stance. The officer attempted to subdue the defendant and claimed he was struck in the forehead while doing so. Another Friend of the Court employee joined in the struggle and apparently was bitten on the arm by defendant. Defendant did not deny resisting but did deny hitting the officer and claimed that he bit the other Friend of the Court employee because he was being strangled.
As a result of these events, defendant was found in contempt of court and was given a six month suspended sentence. In addition, a notice of probation violation was filed against the defendant, specifically charging that, because of the above-described events, he was in violation of the eighth condition of his probation, which provided:
"That he shall not engage in any anti-social conduct which shall furnish this Court good cause to believe that this probationary grant should be revoked in the public interest."
After a contested hearing, defendant was found to be in violation of the conditions of his probation and was sentenced to a prison term of from 40 to 60 months. Defendant now appeals by right from the order of the trial court revoking his probation.
Defendant's principal argument on appeal is that the "antisocial conduct" condition of probation gives no notice of what is actually proscribed and, as a result, is unconstitutionally vague, in violation of due process. The term in question is often made an express condition of probation, most likely because it is a statutory ground for revocation of probation. Surprisingly, however, it has not attracted much attention in our appellate courts. It was most extensively treated in People v Peterson, 62 Mich. App. 258, 263-265; 233 N.W.2d 250; 79 ALR3d 1072 (1975), lv den 397 Mich. 811 (1976), where the Court noted with concern the flexibility of the term and expressed apprehension as to whether a probationer who was told not to engage in "antisocial conduct" would be sufficiently apprised of the conditions of his probation. After examining the extent to which such conditions are imposed in other jurisdictions, however, the Court refused to find that the condition itself violated due process. By way of a caveat, the Court did note that the notice of probation violation could not simply charge that a defendant had engaged in antisocial conduct, but, so long as the specifics were set out in such a manner as to be understood and evaluated, due process was satisfied. See People v Acosta, 65 Mich. App. 640, 641; 237 N.W.2d 601 (1975), People v Elbert, 21 Mich. App. 677, 683 fn 9; 176 N.W.2d 467 (1970).
In general, due process requires that a person know in advance what questionable behavior is prohibited. Grayned v City of Rockford, 408 U.S. 104; 92 S.Ct. 2294; 33 L.Ed.2d 222 (1972), diLeo v Greenfield, 541 F.2d 949, 953 (CA 2, 1976), People v Howell, 396 Mich. 16, 20; 238 N.W.2d 148 (1976). To the extent that Peterson suggests prior notice is not required, we disagree. Although a probationer is not entitled to the full realm of procedural due process guarantees afforded a defendant in a criminal trial, Gagnon v Scarpelli, 411 U.S. 778; 93 S.Ct. 1756; 36 L.Ed.2d 656 (1973), People v Rial, 399 Mich. 431; 249 N.W.2d 114 (1976), it has long been held in Michigan that a probationer is entitled to prior notice of the conditions of his probation and that the conditions must clearly inform the probationer of just what is expected of him. People v Sutton, 322 Mich. 104; 33 N.W.2d 681 (1948), People v Pippin, 316 Mich. 191, 196; 25 N.W.2d 164 (1946). The due process notion of prior notice has been applied in other settings where the rights attendant to a criminal trial are not in full effect. See Parker v Levy, 417 U.S. 733; 94 S.Ct. 2547; 41 L.Ed.2d 439 (1974) (military), diLeo, supra (teacher termination).
Judged by these standards, we believe the condition of probation which prohibited the defendant from engaging in "antisocial conduct" to be, without more, impermissibly vague. As the Peterson Court remarked: "What is `antisocial' in an exclusive club in a sedate suburb and what are perfectly acceptable mores in a lusty metropolitan gathering place can be as far apart as the poles". Peterson, supra, 264. While it is undoubtedly true that there are forms of conduct which all segments of society would consider "antisocial", it is also true that there would be vast disagreement as to whether a great many other forms of conduct were "antisocial". The terms of the condition of probation itself are insufficient to apprise the probationer of what activity is actually forbidden.
This does not necessarily mean that defendant is entitled to have his probation revocation vacated. Unless the vagueness challenge involves First-Amendment freedoms the defendant's conduct must be examined in light of the facts of the case at hand. United States v National Dairy Products Corp, 372 U.S. 29; 83 S Ct 594; 9 L.Ed.2d 561 (1963), Howell, supra, 21. Although a condition may be too vague to disclose every instance in which it might properly be applied, it may still operate to prohibit the specific conduct with which a defendant is charged, if that conduct is clearly and fairly within the terms of the condition. See People v Masten, 96 Mich. App. 127, 131; 292 N.W.2d 171 (1980). In addition, sources other than the express language of the condition may supply the prior notice which due process demands. For example, it has been held that judicial construction of an otherwise vague statute may suffice to give notice of the conduct to which the statute applies. Rose v Locke, 423 U.S. 48; 96 S Ct 243; 46 L.Ed.2d 185 (1975), Wainwright v Stone, 414 U.S. 21; 94 S Ct 190; 38 L.Ed.2d 179 (1973), Howell, supra, 21. See, also, Parker, supra.
In the instant case, defendant's probation officer testified at the revocation hearing that on the day that defendant was placed on probation he discussed the conditions of the probation with defendant. He further testified regarding the condition prohibiting antisocial conduct that he informed the defendant that fighting was an example of such conduct. We believe that this was sufficient, in a probationary setting, to accord the defendant prior notice that he was not to engage in fighting. Indeed, the direct, face-to-face notice that the defendant in the instant case received from the very person who would charge any violations was superior to that provided by prior judicial construction, as a defendant may have no actual notice of such a construction. Accordingly, we hold that as applied to the facts and circumstances of the instant case the condition prohibiting antisocial conduct was not impermissibly vague.
Defendant also argues that he is entitled to resentencing because an updated presentence report was not used. The record reflects that the trial court was aware of a presentence report that had been prepared at the time of the original sentencing, over three years before the sentencing now challenged. The prosecution concedes this issue, and rightly so, as the considerations underlying the requirement of an updated presentence report on a resentencing as announced in People v Triplett, 407 Mich. 510; 287 N.W.2d 165 (1980), apply equally to sentencing after revocation of probation. See, also, People v Smith, 66 Mich. App. 639, 641; 239 N.W.2d 431 (1976). Defendant is entitled to resentencing at which the trial court is to consider a reasonably updated presentence report.
Affirmed and remanded for resentencing.