Opinion
Docket No. 25082.
Decided April 27, 1976.
Appeal from Kalamazoo, Raymond W. Fox, J. Submitted April 7, 1976, at Grand Rapids. (Docket No. 25082.) Decided April 27, 1976.
David H. Hardenbrook was convicted, on his plea of guilty, of entering a building without breaking with intent to commit larceny, and he was placed on probation. Probation revoked. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Stephen M. Wheeler, Chief of Appellate Division, for the people.
Brignall, DeVries Lamb, P.C., for defendant.
Defendant appeals by right from the May 6, 1975 judgment of the Kalamazoo County Circuit Court which revoked his probation pursuant to a finding that he had violated one of the terms of his probation order. Defendant was subsequently sentenced to a term of from 2-1/2 to 5 years in prison.
In 1973, the defendant was convicted on his plea of guilty to the crime of entering a building without breaking with the intent to commit the crime of larceny. MCLA 750.111; MSA 28.306. He was subsequently placed on probation for two years, the first six months to be spent in the county jail.
One of the terms of his probation order prohibited him from leaving the State of Michigan. Early in 1975, defendant's probation officer received information which led him to believe that the defendant had violated that provision by traveling to Florida. On February 28, 1975, a petition for a bench warrant and probation violation hearing was filed by the probation officer and a warrant issued.
The defendant was arraigned in circuit court on the violation charge on April 29, 1975. At that time, he demanded a hearing on the charge and requested the appointment of an attorney. Both requests were met.
The hearing was held on May 6, 1975. The sole witness was the defendant's probation officer, Mr. John Roseboom. Roseboom testified that he received a phone call on February 24, 1975, giving him information which led him to believe that the defendant had illegally left the state. He further testified that the defendant came to his office on February 28, 1975, and, in response to the probation officer's question, admitted that he had visited a brother who lived in St. Petersburg, Florida. The probation officer stated that he had not given the defendant Miranda warnings before asking him that question. The defense then moved that the probation officer's testimony be stricken because no warnings had been given. However, the trial judge denied the motion, stating that he was not aware of any authority which required probation officers to give Miranda warnings before questioning a client.
Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Through his attorney, the defendant then indicated that he would like to testify about the extenuating circumstances that caused him to leave the state. However, the trial judge refused to allow him to testify at that time. The court reasoned that information about extenuating circumstances could only be considered as a part of the sentencing procedure, not part of the guilt-determining process. The defendant was advised to explain the extenuating circumstances to the probation officer who would prepare the presentence report.
On appeal, defendant propounds three claims of error. Defendant first contends that error was committed when he was not given a preliminary hearing to determine the existence of probable cause that he had violated the terms of his probation. Defendant bases this contention on Gagnon v Scarpelli, 411 U.S. 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973). In Gagnon, the Supreme Court adopted for probation revocation proceedings the due process rules it had formulated for parole revocation proceedings in Morrissey v Brewer, 408 U.S. 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972). As part of these rules, the Court mandated both preliminary and final revocation hearings, with the former designed to ascertain probable cause for revocation. 411 US at 781-782.
This Court, however, has noted that the Supreme Court "was not establishing an inflexible structure for probation revocation procedures". People v Blakely, 62 Mich. App. 250, 254; 233 N.W.2d 523 (1975). As such, a single revocation hearing will provide due process if it is sufficiently close in time to the notice of violation that a defendant will not be held for a substantial time period without some kind of determination that he violated probation. Id. The Michigan statutory procedure utilized here was found to satisfy Gagnon in People v Leroy Jackson, Jr, 63 Mich. App. 241; 234 N.W.2d 467 (1975). Defendant here was arraigned within 72 hours following his arrest and the final revocation hearing was held seven days later. The expeditious manner in which this proceeding was handled satisfies the Morrissey-Gagnon standards as applied by Michigan case law.
Defendant's second appellate contention is that the trial court erred by admitting, over defense objection, the statement of defendant's probation officer that defendant admitted going out of Michigan in violation of his probation. Defendant argues that, prior to admitting the violation, he was not informed of his constitutional rights pursuant to the dictates of Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Therefore, he contends, the probation officer's testimony was improperly admitted.
Defendant cites no authority in support of his argument, and our research has discovered none. Indeed, relevant case law from this and other jurisdictions militates against the application of the Miranda rules to probation revocation hearings. First, as the Supreme Court stated, "the revocation of * * * [probation] is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to * * * [probation] revocations". Morrissey v Brewer, supra, at 480. See also Gagnon v Scarpelli, supra, at 781. The Miranda rules, by their own terms, only apply to criminal prosecutions, specifically to "custodial police interrogation" and to the use of statements in criminal trials. Miranda v Arizona, supra, at 439. The "minimal" due process requirements for probation revocation hearings were explicitly established in Gagnon. The requirement that more than just defendant's own testimony be required to find a violation was not, as defendant would have us hold, one of these rights.
Second, cases in other jurisdictions have uniformly rejected the application of Miranda rules to probation revocation proceedings. These opinions have stressed the fact that probation revocation is "not an adversary or a criminal proceeding, * * * but is more in the nature of an administrative hearing intimately involved with the probationer's rehabilitation". United States v Johnson, 455 F.2d 932, 933 (CA 5, 1972), cert den 409 U.S. 856; 93 S Ct 136; 34 L Ed 2d 101 (1972). Further, a probationer retains only those rights which:
"are compatible with his probationary status. * * * This is so because the defendant expressly agrees to be subject to the supervision and surveillance appropriate to a probationer, to avoid the more onerous regimen of a prisoner." United States v Delgado, 397 F. Supp. 708, 712 (SD NY, 1974).
See also Cunningham v State, 488 S.W.2d 117 (Tex Crim App, 1972), State v Johnson, 9 Wn. App. 766, 514 P.2d 1073 (1973).
In United States v Deaton, 468 F.2d 541 (CA 5, 1972), the Court distinguished United States v Johnson, supra, and, in doing so, pointed out the appropriate application of the Miranda rules. The Court reaffirmed its holding in Johnson that "Miranda warnings are not required as a condition to the admission in evidence at the revocation hearing of statements made by the parolee to the parole officer". Id. at 544. In Deaton, however, such statements were admitted against defendant in a subsequent criminal trial. This use, the Court held, was improper.
Cert den 410 U.S. 934; 93 S Ct 1386; 35 L Ed 2d 597 (1972).
In Michigan, revocation hearings are "summary and informal and not subject to the rules of evidence * * * applicable in criminal trials". MCLA 771.4; MSA 28.1134. Parenthetically, other state and Federal courts have also held the Fourth Amendment exclusionary rule inapplicable to probation revocation hearings. See e.g., United States v Winsett, 518 F.2d 51 (CA 9, 1975), United States v Delgado, supra, People v Wilkerson, 541 P.2d 896 (Colo, 1975).
Defendant's final argument on appeal is that the trial judge erred in refusing to allow the defendant to testify about extenuating circumstances at the revocation hearing. We find that the court and prosecutor are correct in arguing that, once defendant admitted that he had violated a condition of probation, his explanation of why he had left the state was more relevant to sentencing. As such, the court's refusal to admit this evidence was within its broad discretion. People v Wood, 2 Mich. App. 342; 139 N.W.2d 895 (1966).
Affirmed.