People v. Ojaniemi

93 Mich. App. 200 (1979) 285 N.W.2d 816 PEOPLE v. OJANIEMI Docket No. 78-4726. Michigan Court of Appeals. Decided October 16, 1979. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Roy D. Gotham, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people. Ronald J. Bretz, Assistant State Appellate Defender, for defendant on appeal. Before: DANHOF, C.J., and V.J. BRENNAN and H.R. CARROLL,[*] JJ. *202 DANHOF, C.J. The defendant pled guilty to obtaining by false pretenses a sum of money greater than $100, MCL 750.218; MSA 28.415, and on January 3, 1978, was sentenced to five years probation. Among the special terms of this probation was the requirement that he pay $10 per week toward a court costs assessment of $500. On June 28, 1978, a bench warrant was issued upon the petition of defendant's probation agent, who alleged that the defendant had not appeared for two monthly appointments, had left the state without permission and been arrested in Florida on a grand theft charge and had made no court costs payment. The defendant waived extradition proceedings in Florida and came into the custody of Michigan officials on July 21, 1978. During the morning hours of July 25, 1978, the defendant was first presented with the statutorily required notice of the probation violation charges. At 11:35 a.m., he appeared before the court for a violation hearing, without protesting this last-minute notice of the charges. He waived assistance of counsel and stated that he understood the three charges against him. The procedure was explained to the defendant and he told the court, "All I want to do is plead guilty". The court took evidence and found, apparently on the twin bases of the hearing testimony and the defendant's concessions, that the defendant had violated his probation in each of the particulars alleged.[1] A sentence of two to ten years imprisonment was imposed. Among the rights which due process affords a defendant charged with violation of his probation is the right to adequate and timely notice of the *203 proceedings and charges he must face. The importance of this right may not be underestimated: "In proceedings such as this, the notice requirement may well be the most crucial. To comply with due process requirements, the notice `must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded'. In re Gault, 387 US 1, 33; 87 S Ct 1428; 18 L Ed 2d 527 (1967)." People v Gulley, 66 Mich App 112, 116; 238 NW2d 421 (1975), lv den 396 Mich 850 (1976). The notice of probation violation charges required by MCL 771.4; MSA 28.1134 "must be served sufficiently in advance of scheduled court proceedings so that defendant has a reasonable opportunity to prepare". People v Radney, 81 Mich App 303, 306; 265 NW2d 128 (1978), see also People v Gillman, 71 Mich App 374; 248 NW2d 553 (1976). The prosecution argues that a plea of guilty waives all "nonjurisdictional" defects in the proceedings, including the defect of untimely notice. This point of view was approved without discussion by the majority in People v Bell, 67 Mich App 351; 241 NW2d 203 (1976), in which notice and hearing occurred on the same day, and by Judge WALSH, dissenting, in People v Lawrence, 90 Mich App 73; 282 NW2d 247 (1979), in which notice and hearing were practically simultaneous. Dissenting in Bell, supra, Judge DANHOF wrote regarding the count to which the defendant had pled guilty: "Under the circumstances of this case, it is difficult to see how the defendant intelligently waived the notice necessary to reasonably prepare for the hearing. He was picked up by the police on the coat charge and incarcerated for three weeks. Then, on March 10, 1975, he obtained counsel, received notice of his violations, *204 and was brought before the trial court. Due process requires adequate notice before any hearing is held which has the consequences of the one in the present case." 67 Mich App at 355. The majority in Lawrence, supra, agreed with the Bell dissent and wrote: "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." 90 Mich App at 77-78. A defendant's right to timely notice of the charges upon which revocation of his probation is sought is his guarantee of adequate time to prepare to meet the charges. He may decide to contest or admit them; either course requires substantial reflection and preparation. It is not clear that a guilty plea more effectively waives the right to timely notice than does a hurried and ill-conceived attempt to refute the accusations. The order revoking the defendant's probation is set aside and his sentence is vacated, without prejudice to the prosecution's right to again seek revocation after notice allowing the defendant adequate opportunity to prepare his response to the charges. H.R. CARROLL, J., concurred. V.J. BRENNAN, J. (dissenting). I must dissent. A *205 probation revocation hearing does not require the preparation time that a trial must have. The defendant is presented a notice of probation violation which contains the various charges resulting in the petition for revocation. The charges are laid out very clearly. Either they pertain to him or they don't. If they don't, then he has the chance at the hearing to tell the court of the inaccuracies of the charges. If they are accurate there is nothing he can do except request leniency. Here, the defendant had a couple of hours to review the notice of probation revocation. He told the court he wished to proceed without a lawyer. The court conducted a hearing and the defendant told the court he was guilty of violating his probation and admitted to the various violation incidents set forth on the notice. Defendant had time to prepare for the hearing after he was timely served with the notice. Defendant expressly waived his right to have an attorney present. A hearing was conducted and defendant told the court emphatically that "All I want to do is plead guilty". I would affirm without remand. NOTES [*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968. [1] The court found that, as the defendant claimed, he had been arrested and sentenced in Florida for petty theft rather than grand theft.