Opinion
Docket No. 58683.
Decided May 18, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and William T. Morris, Assistant Prosecuting Attorney, for the people.
Gerald S. Surowiec, for defendant on appeal.
Defendant pled guilty to violation of his probation and was sentenced to 10 to 20 years in prison. He appeals as of right.
Defendant's sole contention on appeal is that the trial court erred by failing to inform him, prior to acceptance of his plea, that he had the right to a contested hearing as an alternative to pleading guilty. Various panels of this Court have disagreed on the validity of this argument. Compare People v Darrell, 72 Mich. App. 710; 250 N.W.2d 751 (1976); People v Hooks, 89 Mich. App. 124; 279 N.W.2d 598 (1979), and People v Pratto, 99 Mich. App. 521; 298 N.W.2d 21 (1980), with People v Hardin, 70 Mich. App. 204; 245 N.W.2d 566 (1976); People v Allen, 71 Mich. App. 465; 248 N.W.2d 588 (1976); People v Michael Brown, 72 Mich. App. 7; 248 N.W.2d 695 (1976); People v Brooks, 91 Mich. App. 624; 283 N.W.2d 817 (1979), and People v Gaudett, 77 Mich. App. 496; 258 N.W.2d 535 (1977). This Court appears to agree that a defendant cannot make a valid waiver of his right to a hearing unless he is aware that he has such a right. The principal area of disagreement is over the amount of evidence that is necessary to show that a defendant was aware of this right.
Some panels of this Court have concluded, erroneously, that the record need only show that the defendant received a notice referring to a violation hearing.
See, e.g., Darrell, supra, and Pratto, supra.
This position has been squarely repudiated by the Supreme Court in People v Adams, 411 Mich. 1070; 310 N.W.2d 671 (1981), summarily reversing 102 Mich. App. 509; 302 N.W.2d 214 (1980).
In People v Ealey, 411 Mich. 987 (1981), the Supreme Court summarily reversed a revocation of probation on the ground that the record failed "to show that the defendant was notified of his right to a contested hearing". In our view, due process and Ealey require the trial court, at the very least, to specifically inform each defendant that, as an alternative to pleading guilty, he has the right to a hearing in which he will have an opportunity to contest the charges against him. Failure to so inform the defendant requires reversal absent direct and affirmative proof that the defendant was aware that he had such a right and that it would be waived by a plea of guilty. It is therefore necessary to examine the record in the case at bar to determine whether the trial court informed the defendant that, as an alternative to pleading guilty, he had the right to a hearing in which he would have had an opportunity to contest the charges against him.
See also Adams, supra, fn 2.
People v Moore, 121 Mich. App. 452; 328 N.W.2d 662 (1982).
The transcript discloses the following exchange:
"The Court: What is your plea as to not reporting since last October 30th to probation?
"Defendant: I didn't report.
"The Court: Have you reported since October 30th?
"Defendant: Through telephone.
"The Court: Did they tell you to come down?
"Defendant: At the time she said that she would like to see me. "The Court: Did you ever see her?
"Defendant: No sir.
"The Court: All right, you are pleading guilty to not reporting for the last six months, November, December, January, February, March, April.
"Defendant: Well, it was prior to that that I talked to her; but that was the last time that I had seen her.
"Ms. Wolny: The record indicates that the defendant called the probation officer on January 15, 1981, was instructed to come in on that particular date. He did not do so.
"The Court: Now, Mr. Edwards, you have a right to have a lawyer. If you have no money for a lawyer, the court will appoint one for you at no cost. You have a right to have the probation officer Sheila Cochran from the drug program come in and testify you haven't reported. You have a right to present witnesses in your own behalf. Knowing all these rights, do you still wish to plead guilty that you haven't reported in the last six months to the probation department in person?
"Defendant: I'm guilty to that.
"The Court: All right, I will accept the plea and revoke probation."
The trial court never informed defendant that he had the right to a contested hearing. However, the court apprised defendant of certain aspects of the right to a contested hearing: the right to present witnesses in his own behalf and the right to have a probation officer testify that he hadn't reported. We find the latter "right", as enunciated by the trial court, somewhat meaningless, essentially amounting to a right to be accused of wrongdoing. Particularly in light of the fact that defendant was unrepresented by counsel, we cannot conclude, on the basis of the present record, that defendant was aware of his right to a contested hearing.
The prosecution insists that defendant's receipt of a notice of probation violation mentioning the right to a hearing shows that defendant was aware of this right. As we have indicated previously, this claim is without merit. Adams, supra. Absent direct and affirmative proof that defendant read the notice and understood it, reversal is required.
Once again, we urge the bench and bar to comply with our directives on this issue. In order to ensure the voluntariness of such waivers, each defendant should be informed that, as an alternative to pleading guilty, he has the right to a hearing in which he will have an opportunity to contest the charges against him.
Reversed and remanded for further proceedings in accordance with this opinion.
BEASLEY, J., concurs in the result only.