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Docket Number

Docket No. 90040.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Jerome O'Connor, Assistant Prosecuting Attorney, for the people. Gerald M. Lorence, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

People v. Duncan, Michigan Court of Appeals, Docket No. 90040 (Dec. 9, 1986) — Opinion Summary

Factual and Procedural Background

On January 19, 1981, the defendant pleaded guilty to assault with intent to commit murder (MCL 750.83; MSA 28.278). The defendant received credit for time served and was placed on five years' probation. On December 13, 1983, the defendant was arrested and served with notice that he had violated probation for failing to report. That same day he was arraigned and counsel was appointed; the appointed attorney discussed the case with the defendant that day. On December 14, 1983, the defendant pleaded guilty to violating his probation. He was subsequently sentenced to a prison term of twelve to twenty years. The defendant appealed as of right. The Court of Appeals affirmed the lower court's decision.

Legal Issues Presented

Whether the defendant received inadequate notice of the probation violation hearing such that due process required reversal or setting aside the probation revocation and guilty plea.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Gulley, 66 Mich. App. 112, 238 N.W.2d 421 (1975), lv den 396 Mich. 850 (1976)	Cited as an instance where one day or less notice of a probation revocation hearing was found insufficient and a violation of due process.	Placed among the cases the Court contrasted with the present case to show situations where short notice was inadequate because the charged violations required witnesses and substantial preparation.
People v. Bell, 67 Mich. App. 351, 241 N.W.2d 203 (1976), lv den 397 Mich. 807 (1976)	Cited as another case holding that one day or less notice was insufficient and violated due process.	Used as an example of matters that could not be properly disputed without gathering witnesses and preparing a substantial defense, distinguishing those facts from the present case.
People v. Lawrence, 90 Mich. App. 73, 282 N.W.2d 247 (1979), lv den 407 Mich. 851 (1979)	Cited as a case involving a probation revocation where the defendant waived counsel and pleaded guilty the same day he received notice.	Distinguished from the instant case because Lawrence involved a defendant who waived counsel and pleaded guilty the same day, unlike the present defendant who had counsel appointed and consulted counsel prior to pleading guilty.
People v. Ojaniemi, 93 Mich. App. 200, 285 N.W.2d 816 (1979), lv den 408 Mich. 904 (1980)	Cited as another case in which the defendant waived assistance of counsel and pleaded guilty to a probation violation on the same day notice was received.	Distinguished from the instant case for the same reason as Lawrence: the present defendant had counsel and consulted with counsel before pleading guilty.
People v. Broadnax, 98 Mich. App. 338, 296 N.W.2d 253 (1980)	Cited as a case holding that one day's notice of a probation revocation hearing was adequate in a case charging failure to report, where the factual issue was simple and required minimal time to prepare.	The Court found Broadnax controlling here because the instant charge (failure to report) presented a similarly simple factual issue requiring minimal preparation time; Broadnax supported upholding the conviction despite one day's notice.
People v. McNeil, 104 Mich. App. 24, 303 N.W.2d 920 (1981)	Cited both for the view that one day's notice may be adequate and in the context of whether a guilty plea waives notice defects in probation violation cases (noting a split of authority).	Cited as part of the line of cases finding short notice adequate and as part of the Court's discussion of the split of authority; the Court referenced McNeil when explaining distinctions among precedents and relied on the Broadnax line (which McNeil supports) as controlling here.

Court's Reasoning and Analysis

The court began by identifying the sole issue on appeal: whether the defendant received inadequate notice of the probation violation hearing. The opinion acknowledges a split of authority within this Court concerning whether a guilty plea waives notice defects in probation revocation proceedings, citing People v. McNeil for that discussion.

The Court then surveyed prior panel decisions. It noted that on various occasions panels had held one day or less notice insufficient (citing Gulley, Bell, Lawrence, and Ojaniemi), and on other occasions panels had found one day's notice adequate (citing Broadnax and McNeil).

The Court determined that Broadnax was controlling for the present case because the charged violation here—failure to report—was, like in Broadnax, a simple factual matter requiring minimal time to gather information and determine a defense. The court contrasted this with Bell and Gulley, where the violations involved disputes that would require gathering witnesses and preparing a substantial defense, rendering one-day notice inadequate. The court also distinguished Ojaniemi and Lawrence because those cases involved defendants who waived counsel and pleaded guilty the same day they received notice, whereas the defendant in this case had counsel appointed and conferred with counsel the day before pleading guilty.

The court additionally observed that Michigan Court Rule 6.111(E)(1) "now specifically provides that a defendant may plead guilty at his arraignment on a probation violation charge," a procedural point supporting the acceptability of pleading guilty promptly in such proceedings.

Applying those comparisons to the facts, the court found that the defendant had met with appointed counsel the day before pleading guilty and again on the day of the plea, had been advised of the right to a hearing to contest the charges, and knowingly chose to plead guilty. Given those circumstances and the simple factual nature of the failure-to-report charge, the Court saw no basis to set aside the plea.

Holding and Implications

Holding: The Court affirmed the decision of the lower court; the conviction and sentence were affirmed.

Implications: The direct consequence is that the defendant's probation revocation conviction and resulting prison sentence (twelve to twenty years) stand. The opinion relied on the Broadnax line of cases to uphold one-day notice for a simple failure-to-report probation violation where the defendant had an opportunity to consult counsel and was advised of the right to a hearing before pleading guilty. The opinion does not announce a new rule of law beyond applying existing precedent and does not indicate that it establishes a broader binding precedent beyond the resolution of this appeal.

This summary is based exclusively on the text of the provided opinion and does not add facts or inferences beyond what the opinion itself states.

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PEOPLE v DUNCAN

PER CURIAM.

On January 19, 1981, defendant pleaded guilty to assault with intent to commit murder, MCL 750.83; MSA 28.278. The defendant was given credit for time served and ordered to serve five years probation. On December 13, 1983, the defendant was arrested and served with a notice of violating his probation for failing to report. Later that day, the defendant was arraigned and had counsel appointed. The assigned attorney discussed the case with the defendant that day. On December 14, 1983, the next day, the defendant pleaded guilty to violating his probation. Defendant was thereafter sentenced to a prison term of from twelve to twenty years and appeals as of right. We affirm.

The only issue raised on appeal is whether the defendant received inadequate notice of the probation violation hearing. There is a split of authority in this Court on the question of whether or not a guilty plea waives notice defects in probation violation cases. People v McNeil, 104 Mich. App. 24, 28; 303 N.W.2d 920 (1981). Even assuming that a guilty plea does not waive the notice issue, this Court finds the defendant's arguments unpersuasive.

On occasion, panels of this Court have found notice of a probation revocation hearing of one day or less insufficient and a violation of due process. See, e.g., People v Gulley, 66 Mich. App. 112; 238 N.W.2d 421 (1975), lv den 396 Mich. 850 (1976); People v Bell, 67 Mich. App. 351; 241 N.W.2d 203 (1976), lv den 397 Mich. 807 (1976); People v Lawrence, 90 Mich. App. 73; 282 N.W.2d 247 (1979), lv den 407 Mich. 851 (1979); People v Ojaniemi, 93 Mich. App. 200; 285 N.W.2d 816 (1979), lv den 408 Mich. 904 (1980).

On other occasions, panels of this Court have found that one day's notice of a probation revocation hearing was adequate. People v Broadnax, 98 Mich. App. 338; 296 N.W.2d 253 (1980); People v McNeil, supra.

We find the holding of Broadnax controlling here. The charge in this case, as in Broadnax, was a failure to report. As in Broadnax, this case presents a simple factual issue requiring minimal time for the defendant to gather information relevant to determining the existence of a viable defense. In contrast, in Bell and Gulley the charged violations could not be properly disputed without gathering witnesses and preparing a substantial defense. People v McNeil, supra, p 29. Unlike the instant case, Ojaniemi and Lawrence both involved situations where a defendant waived the assistance of counsel and pleaded guilty to a probation violation the same day he received notice of the charged violations. We are also cognizant of the fact that MCR 6.111(E)(1) now specifically provides that a defendant may plead guilty at his arraignment on a probation violation charge.

In this case, the defendant met with appointed counsel the day before he pleaded guilty and again the next day when he pleaded guilty. The trial court advised the defendant of a right to a hearing to contest the charges. The defendant, having been advised of that right, knowingly chose to plead guilty. There is no basis here on which to set aside that plea. Accordingly, the decision of the lower court is affirmed.

Affirmed.

PEOPLE v. DUNCAN