Opinion
Docket No. 74216.
Decided October 2, 1984.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Robert J. Berlin, Assistant Prosecuting Attorney, for the people.
Diane Femminineo, for defendant on appeal.
Before: HOOD, P.J., and R.M. MAHER and WAHLS, JJ.
Defendant pled guilty to a charge of attempted larceny in a building, MCL 750.360; MSA 28.592, and was sentenced to two years probation. On July 14, 1983, defendant was charged with violating his probation by failing to report to his probation officer in April, May, June, and July of 1983. Defendant pled guilty to this charge and was sentenced to from 16 to 24 months imprisonment, with 6 days credit. He now appeals as of right from the revocation decision.
Defendant first argues that the court failed to make a finding that defendant made an understanding, knowing, and voluntary waiver of his right to counsel. At the revocation hearing, the following exchange occurred:
" The Court: You are entitled to an attorney in this matter to represent you, this being a probation violation hearing. You can retain a private attorney, or if you do not have the funds, then I will appoint an attorney to represent you.
"Do you wish to have an attorney in this matter?
" The Defendant: No, sir. I don't want to prolong it any more."
Defendant argues that this exchange does not establish a knowing, voluntary, and intelligent waiver because the trial court "apparently" did not consider various pertinent factors (listed in People v Kitley, 59 Mich. App. 71, 76; 228 N.W.2d 834) in determining that defendant had waived his right to counsel. He also argues that the court failed to specifically state that defendant had a right to counsel, rather than merely an option to have an attorney present.
We disagree. The Kitley Court did not establish a hard and fast rule for the waiver of counsel, but rather established guidelines under which a court could review the "facts and circumstances of each particular case" to determine whether or not a defendant had made a knowing and intelligent waiver of his right to counsel. In Kitley, the defendant was 18 years old, unemployed, and did not have a high school diploma. More importantly, when first asked if he wished to have an attorney, he stated, "I don't know". At no time did the defendant unequivocally state that he did not want counsel. In addition, the trial court in Kitley advised the defendant of his "right" to counsel in such a way that the defendant could well have been deterred from asserting that right. In this case, although defendant was also young (22 years old) and uneducated (a 10th grade education), he was clearly advised of his right to have counsel appointed for him and he was not advised in such a way as to deter his assertion of his right. In addition, defendant clearly expressed his wish not to have counsel; his response to the court indicates that he had weighed his options and chosen not to postpone the inevitable. See People v Alame, 129 Mich. App. 686, 689; 341 N.W.2d 870 (1983), lv den 419 Mich. 877 (1984).
We reject defendant's contention that the use of the word "entitled" does not adequately convey the nature of the right to counsel. Defendant was adequately informed of his right.
Defendant next argues that the court failed to establish support for a finding that defendant was guilty, as required by GCR 1963, 791.5(b)(4):
"(b) Before the court accepts a guilty plea, it shall, speaking directly to the probationer and receiving the probationer's response,
* * *
"(4) establish suport for a finding that the probationer is guilty of the violation charged."
In this case, the trial court established that defendant had received notice of the charge before the hearing began and then read the charge to defendant at the hearing. Defendant twice stated that he understood the charge. After being advised of the rights he would waive if he pled guilty, defendant was asked, "How do you plead to this probation violation?" Defendant responded, "I plead guilty, your Honor". The court then asked defendant if he wished to be sentenced immediately, and defendant replied, "Yes". On appeal, defendant argues that this procedure did not establish a factual basis for his plea, but only established that he wished to plead guilty to the violation.
While this is a close question, we find that the court did establish sufficient support for its finding that defendant was guilty of the violation charged. No case has directly addressed the question of the quantum or nature of the support necessary for a finding of guilt. However, the staff comment to GCR 1963, 791.5 suggests that, under certain circumstances, a probationer's admission of guilt may be sufficient:
"Subrule 791.5 is a codification of the law as recognized in People v Rial, 399 Mich. 431; 249 N.W.2d 114 (1976); People v Hooks, 89 Mich. App. 124; 279 N.W.2d 598 (1979); People v Michael Brown, 72 Mich. App. 7; 248 N.W.2d 695 (1976); and People v Kitley, 59 Mich. App. 71; 228 N.W.2d 834 (1975), except that before accepting a plea the trial judge must state the maximum sentence the probationer may receive if probation is revoked, and establish a factual basis for the plea (which need not stem from an admission of guilt by the probationer in open court)." (Emphasis added.)
In the four cases named in this comment the issues did not involve the "factual basis" question, but the factual statements made in the cases indicate that guilt was found in three of these pre-rule cases on little more than the probationer's admission of guilt. In Rial, the opinion states that "both defendants waived their rights to appointed counsel and to a formal hearing on the charges. Both admitted that they had violated the terms of their probations. In each case, the trial judge revoked probation". 399 Mich. 434-435. In Hooks, guilt was found after the probationer acknowledged receiving notice of the alleged probation violation and her attorney asserted on the record that the probationer "pleads guilty, your Honor, to the charge of violation". The Hooks Court stated that the probationer had "clearly admitted her probation violations to the court". Finally, in Michael Brown, the lower court found guilt where the judge "read each charged violation to defendant, ascertained that defendant understood each charge, and asked defendant to plead to each charge. Defendant offered a plea of guilty to each charge".
Since these cases, and since the adoption of GCR 1963, 791.5(b)(4), this Court has twice found an inadequate support for a lower court's finding of guilt. In People v Alame, supra, the probationer was found guilty of violating his probation on three different charges. The support relied upon by the lower court consisted of the probation officer's stating on the record that the probationer "has been apprised of the allegations against him". The probation officer then read the contents of only one of the allegations on the record. A brief recess was called, after which the probation officer stated, "We have gone over the allegations and Mr. Alame has read through all of them". The court then asked the probationer how he wished to plead. The probationer answered, "Guilty". This Court, in reviewing the probationer's allegation that the trial court had failed to comply with GCR 1963, 791.5(b)(4), stated:
"Finally, we find that the record shows that the trial court did not `establish support for a finding that the probationer is guilty of the violation charged', GCR 1963, 791.5(b)(4). In fact, the trial court did not make any finding at all but simply accepted defendant's plea without even stating the charges on the record." 129 Mich. App. 690. In People v Ison, 132 Mich. App. 61; 346 N.W.2d 894 (1984), insufficient support was found where the only basis for the finding of guilt was the defense counsel's statement at the beginning of the probation violation hearing that the probationer did not contest one of the three charges against him.
In this case, the lower court did not explicitly make a "finding" that defendant was guilty of the charged offense. In this sense, the court did not comply with the court rule. However, as noted in both Alame and Ison, not every deviation from the rule requires reversal, provided that a record sufficient to show that the plea was understanding, voluntary, and knowing has been made. We find that such a record was made here. The court stated the charge against defendant on the record and twice ascertained that defendant understood the charge. The charge itself was clear-cut and precise — failure to report to defendant's probation officer in April, May, June, and July of 1983. Defendant's admission of guilt to the stated charge was sufficient to establish a basis for finding that defendant was guilty.
Defendant's final argument is that the court should have considered his explanation for failing to report. Incorporated into this argument is a claim that the trial court improperly considered evidence of a prior violation which ended in probation being extended.
As stated by defendant, a probation revocation hearing consists of two steps: (1) a factual determination that the violation charged in the notice has occurred, and (2) a discretionary determination that the proven charges warrant revoking probation. People v Clements, 72 Mich. App. 500, 503; 250 N.W.2d 100 (1976), citing Morrissey v Brewer, 408 U.S. 471, 479-480; 92 S Ct 2593, 2599; 33 L Ed 2d 484, 493 (1972). The decision to revoke probation cannot be based on conduct which is not charged in the notice of violation:
"Under the statute (MCL 771.4; MSA 28.1134) a probationer is entitled to a written copy of a charge of probation violation and to a hearing thereon. Only evidence relating to the charge may be considered and on the basis of that evidence alone is the decision whether to terminate or revoke the probationary order to be made." (Footnotes omitted.) People v Elbert, 21 Mich. App. 677, 681; 176 N.W.2d 467 (1970).
In addition, a probationer is entitled to have his explanation for his alleged violation considered by the court.
In this case, we reject defendant's first contention because we find that, although given an opportunity to inform the court of mitigating factors, defendant did not take the opportunity:
" The Court: You have the right to make any statement you desire before sentencing. Do you have anything you wish to say?
" The Defendant: No, sir. I would hope that, you know, I could go back on probation. You know, I'm just now getting back together with my wife and family.
" The Court: Where is your wife now?
" The Defendant: She is up in Hale.
" The Court: This is your second probation violation.
" The Defendant: Yes. I was thinking maybe I could maybe do weekends in jail or something so I could be with my family, sir.
" The Court: It's the ruling of this Court that you have violated your probation. It's serious enough, the violation, that you be sent to prison."
We also reject defendant's claim that the court improperly considered the fact that this was defendant's second probation violation. The court explicitly stated that it was revoking defendant's probation because "the violation" was serious enough to warrant this step.
Affirmed.