Opinion
Docket No. 2,305.
Decided April 10, 1968.
Appeal from Kent; Hoffius (Stuart J.), J. Submitted Division 3 June 6, 1967, at Grand Rapids. (Docket No. 2,305.) Decided April 10, 1968.
Nelson Bess was convicted of robbery armed. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Sherwin J. Venema, Assistant Prosecuting Attorney, for the people.
Edward B. Goodrich, for defendant on appeal.
The defendant, Nelson Bess, on February 11, 1966, was charged with the crime of robbery armed. Bond was subsequently set by the court at $5,000, subject to the approval of the defendant's parole officer. It was upon the advice of the parole officer that the defendant should not be released that the bond was canceled and the defendant was retained in custody.
CLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28.797).
On February 15, 1966, counsel was appointed to represent the defendant at the arraignment proceedings. On April 1, 1966, the defendant elected to plead guilty to the offense charged. The court examined the defendant and was satisfied that the plea was advisedly and understandingly made and was a result of defendant's own free will. The plea of guilty was accepted and the defendant was sentenced to a term of 8 to 10 years in prison. The present appeal followed.
GCR 1963, 785.3(2).
On appeal the defendant contends that he was denied due process of law as provided by the United States Constitution and the Constitution of the State of Michigan in that he was denied bond on the basis of a parole violation without having been afforded the right to a hearing on said parole violation within the provision of CLS 1961, § 791.240 (Stat Ann 1954 Rev § 28.2310), the pertinent part of which reads as follows:
"Whenever a paroled prisoner is accused of a violation of his parole, other than the commission of, and conviction for, a felony or misdemeanor under the laws of this state, he shall be entitled to a fair and impartial hearing of such charges."
It does not require mental gymnastics to discover the clear meaning of the above provision. When a paroled prisoner is convicted of a felony or misdemeanor, a hearing on that parole violation is dispensed with. Such was the situation in the instant case. The purpose of the statute is to afford an accused parole violator, when the violation involves something less than a felony or misdemeanor, with safeguards to insure that the alleged violation is sufficiently substantiated. In the case of a parole violation involving a crime, similar safeguards attach, but a trial instead of a hearing affords the protection.
Assuming arguendo that the defendant was entitled to a hearing, it is difficult to discern how the absence of a hearing and the denial of a bond in any way affected the voluntariness of the plea of guilty. The defendant makes no such claim and the record of the proceedings reveals nothing that would corroborate such a claim. Further if there were any irregularities in the arraignment proceeding the defendant by electing to plead guilty has effectively waived them. See People v. Robbins (1967), 6 Mich. App. 633, and cases cited therein.
After thorough review of the proceedings below, we find the defendant was afforded every right consistent with due process of law. Although diligent effort was expended by appellate counsel, the allegations of error are without basis in law or in fact.
Affirmed.
HOLBROOK, P.J., and BURNS, J., concurred.