Opinion
Docket No. 48534.
Decided June 17, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
Terrance P. Sheehan, for defendant on appeal.
Before: DANHOF, C.J., and R.M. MAHER and BEASLEY, JJ.
On December 17, 1973, defendant pled guilty to a charge of assault with intent to rob while armed, MCL 750.89; MSA 28.284. He was subsequently sentenced to three years probation, with the first year to be spent in the county jail. While on probation, defendant was charged with armed robbery, MCL 750.529; MSA 28.797. He was convicted at a jury trial and sentenced to a prison term of from 30 to 40 years. After the armed robbery conviction, defendant was charged with violating his probation. Defendant was charged with violation of the statutory term prohibiting him from violating any criminal law of the State of Michigan. The formal charges stated both that defendant had committed the armed robbery and had been convicted thereof. On April 27, 1976, defendant was found in violation of his probation, based solely on his admission that he had been convicted of the armed robbery charge. Defendant did not admit to having been involved in an armed robbery nor were any witnesses presented to substantiate the charge. The trial court then revoked defendant's probation and sentenced him to a prison term of from 26-1/2 to 40 years on the assault with intent to rob while armed conviction.
Meanwhile, defendant appealed his armed robbery conviction and this Court reversed, holding that certain statements made by the defendant should have been suppressed as the fruits of an illegal arrest. People v Tebedo, 81 Mich. App. 535; 265 N.W.2d 406 (1978). The case was remanded for a new trial which has been adjourned on several occasions pending the outcome of the instant appeal. As a result of the reversal of his armed robbery conviction defendant moved to set aside his guilty plea to the probation violation charge. This motion was denied and defendant now appeals by leave granted on June 9, 1980.
On appeal, defendant argues that the trial court erred in refusing to set aside the finding that he had violated his probation where the conviction on which that finding was based was subsequently reversed. This question has not been extensively discussed in this state. People v Biondo, 76 Mich. App. 155; 256 N.W.2d 60 (1977), lv den 402 Mich. 835 (1977), appears factually similar. In Biondo, defendant was convicted of breaking and entering a business establishment while on probation from a prior conviction. As a result of the breaking and entering conviction, his probation was revoked. Defendant's appeal to this Court involved both the breaking and entering conviction and the probation revocation. Discussing the breaking and entering conviction first, the Court reversed on the basis of improper prosecutorial argument. The Court then added, without additional discussion: "The reversal of the breaking and entering conviction of necessity means that the resulting probation violation conviction is set aside". Id., 160.
Biondo appears to stand for the proposition that when a defendant is found in violation of his probation on the basis of a conviction for a substantive criminal offense and that conviction is subsequently reversed, the defendant is entitled to have the probation revocation reversed as well. Analysis of other probation revocation cases reveals, however, that this is not always the case. The standard of proof in a probation revocation hearing is less than in a regular criminal trial. When revocation is sought on the basis of a subsequent violation of the criminal law, there must be proof sufficient to allow the court to find by the preponderance of the evidence that defendant committed the new offense. People v Buckner, 103 Mich. App. 301; 302 N.W.2d 848 (1980), People v Billy Williams, 66 Mich. App. 67; 238 N.W.2d 407 (1975). There must be sufficient proof on each element of the offense. People v Pippin, 316 Mich. 191; 25 N.W.2d 164 (1946). Because the standard of proof is lower than the reasonable doubt standard employed in a criminal trial, probation may be revoked before the trial on the substantive offense, and a decision to revoke probation will be valid even if the defendant is ultimately acquitted of the substantive crime. People v Morgan, 85 Mich. App. 353; 271 N.W.2d 233 (1978). See People v McDonald, 97 Mich. App. 425; 296 N.W.2d 53 (1980), People v Nesbitt, 86 Mich. App. 128, 136; 272 N.W.2d 210 (1978), and People v Baines, 83 Mich. App. 570; 269 N.W.2d 228 (1978), lv den 408 Mich. 861 (1980). For the same reasons, the subsequent reversal of a conviction on a criminal offense would not require vacation of a probation revocation which was based on that offense if the testimony or the defendant's admissions at the revocation hearing were sufficient to establish by a preponderance of the evidence that the defendant committed the offense.
In the instant case, no testimony was taken to establish the facts underlying the armed robbery charge. Nor did defendant admit to participating in an armed robbery. The only thing defendant admitted was that he had been convicted by a jury of armed robbery. Based on this admission, the trial court revoked defendant's probation "because he was convicted of Armed Robbery on March the 18th, 1976, in Genesee County, Michigan". Certainly, probation may be revoked on the basis of the fact that a defendant has been convicted of a subsequent criminal offense. Evidence of the conviction actually supplies greater proof than necessary, since it represents that defendant was found to have committed a criminal offense "beyond a reasonable doubt" instead of by a "preponderance of the evidence". Where the sole basis for revoking probation is evidence of conviction, however, and where that conviction is subsequently reversed, there is no longer a reliable basis on which to rest the probation violation. Although it could be argued that defendant's participation in the criminal offense was found beyond a reasonable doubt regardless of the reversal, the effect of the reversal is, in general, to cast doubt on the reliability of that finding. Without an independent finding of defendant's involvement in the offense, as might have resulted if defendant admitted participation in the robbery or if a witness had testified to the underlying facts, the probation revocation has no basis on which to stand.
To summarize, the subsequent reversal of a criminal conviction on which a probation revocation is based does not require reversal of the probation revocation if (1) at the revocation hearing defendant admitted facts sufficient to establish by a preponderance of the evidence that he committed the offense, or (2) if testimony is presented at the revocation hearing which meets this same standard. If the only thing established at the hearing is that defendant was convicted of the offense; then reversal of that conviction requires reversal of the probation revocation as well.
Because the prosecution may seek to reinstitute probation revocation proceedings against the defendant on the basis of conduct occurring during the probationary period, we will briefly address one further issue raised by the parties. After this Court's reversal of defendant's armed robbery conviction, defendant moved to disqualify the judge from presiding at his retrial on the basis of GCR 1963, 912.2(2). The motion was ultimately granted. Defendant then sought to disqualify the same judge from hearing his motion to set aside the probation revocation. This motion was denied on the basis that questions of fact were involved in the armed robbery retrial (which was to be a bench trial) while only issues of law were involved in the motion to set aside the probation revocation. We find no support for such a distinction. Accordingly, this judge should disqualify himself from hearing the matter of defendant's probation revocation if such proceedings are again instituted and if disqualification is sought. In all other proceedings which might arise in the future regarding this defendant in which disqualification of this judge is sought, the judge should focus on the question of whether grounds for disqualification still exist rather than on the nature of the proceedings.
The revocation of defendant's probation is reversed and the sentence imposed thereon is vacated.
Reversed.
I concur in the result reached by the majority but write regarding defendant's motion to disqualify the trial judge.
In 1974, this defendant attempted to escape from custody in the courtroom immediately following sentence by Judge Ollie B. Bivins of the Genesee County Circuit Court. At a subsequent hearing, defendant and two other witnesses testified that during this escape attempt defendant directed a racial obscenity at the trial judge. The trial judge subsequently denied hearing it.
Defendant was sentenced to three years probation, with the first year to be spent in the county jail.
I write to indicate that I would not permit a litigant to accomplish disqualification of a trial judge under this type of circumstance. However, in this case, the trial judge subsequently, at a 1978 disqualification hearing, chose to grant a motion to disqualify himself from hearing a nonjury retrial of this defendant.
See, People v Tebedo, 81 Mich. App. 535; 265 N.W.2d 406 (1978).
Only because the trial judge involved chose to disqualify himself from hearing the retrial do I concur in this decision to disqualify him from a further probation revocation hearing, if there is one.