                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 18, 2018
               Plaintiff-Appellee,

v                                                                  No. 336001
                                                                   Kent Circuit Court
DIONTEE LAQUINN BEAVERS,                                           LC No. 14-006054-FH

               Defendant-Appellant.


Before: METER, P.J., and BORRELLO and BOONSTRA, JJ.

PER CURIAM.

        Defendant, Diontee Laquinn Beavers, appeals as of right the trial court’s order revoking
his probation for a bench trial conviction of fourth-degree criminal sexual conduct (CSC-IV),
MCL 750.520e(1)(b) (force or coercion). The trial court sentenced defendant as a fourth-
habitual offender, MCL 769.12, to 1 year 6 months to 15 years’ imprisonment for the probation
violation. For the reasons set forth in this opinion, we affirm.

                                       I. BACKGROUND

        After defendant’s CSC-IV conviction in Kent County, he moved to Saginaw, Michigan.
His probation supervision was transferred to Saginaw County. Defendant was required to
complete a sex offender treatment program as a result of his probation. However, the service
provider would not allow defendant to participate in treatment because he refused to accept
responsibility for the incident that led to his conviction and because he was actively appealing
his conviction.1 As a result, defendant contends that his probation officer violated defendant for
his failure to complete the program. Defendant was then told that he was required to report to
his probation officer in Kent County. However, defendant claimed he could not make the trip to
Kent County because of transportation issues. After defendant failed to report to his probation
officer on three separate dates in September 2016, the trial court issued a bench warrant for
defendant’s arrest for failing to comply with the requirements of his probation. Defendant was
arrested in November 2016.


1
 This Court affirmed defendant’s conviction in People v Beavers, unpublished order of the
Court of Appeals, entered July 3, 2017 (Docket No. 330867).


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         According to the probation case report, defendant had a long history of committing
violent crimes, including armed robbery, felony-firearm, assault of a jail employee, escape from
jail, assault and battery, and second-offense operating a vehicle while intoxicated. Furthermore,
the report indicated that defendant failed to complete sex offender therapy and absconded from
probation. Defendant knew enough to give the police officer in Saginaw who arrested him a
fake name and date of birth at the time of his arrest. Therefore, the probation agent
recommended that defendant’s probation be revoked and that he be sentenced to a term of
incarceration with the Michigan Department of Corrections.

       On November 30, 2016, the trial court held a probation violation hearing. At the outset
of the hearing, the trial court asked defendant’s counsel whether he was able to discuss the
matter with defendant. Counsel stated that he had discussed the probation violation report and
presentence update with defendant. The trial court then explained the following:

               [Defendant], you’re on probation for criminal sexual conduct fourth
       degree charged as a fourth felony offender. That means that if you admit the
       violation and plead guilty to the petition, you face the revocation of your
       probationary status and confinement for up to 15 years or any lesser term
       designated by the Court. If you plead not guilty, you can have a hearing within 14
       days to decide if you violated probation or not, and your attorney would then
       again appear to represent you at the hearing. If you plead guilty, there will be no
       further hearings, and the Court will sentence you within the limits explained.

              Essentially, it’s charged here that you failed to report beginning on
       September the 6th of this year and had not reported to any time since then; that
       you have been discharged from Catholic Charities on August 17th for failing to
       offer ownership of deviant conduct or intent; and you were non-compliant with
       completing your treatment.

       Do you understand those things and why you’re here today?

        The trial court stated that if defendant pleaded guilty to the probation violation, then it
wanted “to hear all about it.” However, if defendant pleaded not guilty to the probation
violation, the trial court wished to hear more about the violation at a later hearing. Defendant
stated that he would plead guilty and explain the violation to the trial court. The trial court asked
defendant if it was true that defendant had not reported to the probation office since September.
Defendant answered that it was true. He explained that the instructor of the sex offender class
did not think he was a good fit for the class because he did not admit the sexual assault. As a
result, defendant was “violated” by his probation officer for not attending the class. He was told
to report to the Kent County probation office, however, the family car broke down, and he could
not make the 2½ hour drive from Saginaw to Kent County.

       Defense counsel argued that defendant tried to comply with his probation requirements to
the best of his ability. According to counsel, Catholic Charities’ refusal to accept defendant’s
explanation of the sexual assault was egregious. He attempted to go to the classes, but he was
unsuccessfully discharged. His probation officer violated him for not successfully completing
the class. However, defendant could not make the trip to Kent County. He informed his

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probation officer that he was unable to secure transportation, but he did not abscond from
probation or commit any other crimes. Therefore, it was clear that defendant was doing the best
of his ability to comply with all the requirements of his probation.

       The trial court stated the following:

              Well, I can sort of understand your position about the class, but it seems to
       me that you still must realize and did realize that you had to report to the
       probation officer. If the probation officer was going to bring a violation, then the
       probation officer would bring a violation, but you can’t just sort of say, well,
       okay, and shrug it off. And in terms of getting over here from Saginaw, if you
       have to take a bus or something, you have to do what you have to do.

              Now, apparently when they arrested you in Saginaw, they charged you
       with making a false statement to the police by giving a false name and a false
       birth date, indicating a consciousness of guilt and a recognition that you were
       being sought after.

               The probation officer also notes that you have a long history of
       committing violent crimes, including armed robbery, felony firearm, assaulting a
       jail employee, escape, assault and battery, and a second offense drunk driving.

       Defendant was sentenced as stated above. This appeal then ensued.

                                         II. ANALYSIS

       On appeal, defendant first argues that the trial court violated his right to due process
because it decided to revoke his probation based in part on uncharged, unadmitted, and
unestablished conduct. “A trial court must base its decision that a probation violation was
proven on verified facts in the record.” People v Breeding (On Remand), 284 Mich App 471,
487; 772 NW2d 810 (2009). “The evidence, viewed in a light most favorable to the prosecution,
must be sufficient to enable a rational trier of fact to find a probation violation by a
preponderance of the evidence.” Id. “The decision to revoke probation is a matter within the
sentencing court’s discretion.” Id. at 479 (quotation marks and citation omitted). However,
because defendant failed to preserve his challenges at his parole hearing, we will review his
unpreserved claims for plain error. Id. at 483.

       Probation violation hearings are summary and informal and are not subject to the
       rules of evidence or of pleading applicable in a criminal trial. The scope of these
       proceedings is limited and the full panoply of constitutional rights applicable in a
       criminal trial do not attach. However, probationers are afforded certain due
       process at violation hearings because of the potential for loss of liberty.
       Specifically, a probationer has the right to a procedure consisting of (1) a factual
       determination that the probationer is in fact guilty of violating probation, and (2) a
       discretionary determination of whether the violation warrants revocation. [People
       v Pillar, 233 Mich App 267, 269; 590 NW2d 622 (1998).]



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“Moreover, only evidence relating to the charged probation violation activity may be considered
at a violation hearing and only such evidence may provide the basis for a decision to revoke
one’s probation.” Id. at 270.

        In this case, it is undisputed that defendant pled guilty to the probation violations. The
trial court was then required to determine whether defendant’s violation warranted revocation of
his probation. Although defendant argues on appeal that his failure to complete the sex offender
therapy program was not his fault because the service provider would not accept him into the
program because he was appealing his CSC-IV conviction, as quoted above, the trial court
focused on defendant’s failure to report in its decision to revoke probation.

        In addition, defendant argues that the trial court improperly relied on unadmitted conduct
in its decision to revoke his probation because the trial court considered his statements to the
Saginaw police before his arrest. However, the record shows that the trial court referenced
defendant’s statements to the Saginaw police as evidence that defendant knew he was in
violation of his probation. The trial court stated, “Now, apparently when they arrested you in
Saginaw, they charged you with making a false statement to the police by giving a false name
and a false birth date, indicating a consciousness of guilt and a recognition that you were being
sought after.” See Pillar, 233 Mich App 267 (stating that evidence relating to the charged
probation violation may provide a basis for a decision to revoke probation).

        Defendant also contends that the trial court improperly considered his criminal history in
its decision to revoke his probation. However, although it is not explicit, the record implies that
the trial court based its decision to revoke defendant’s probation on defendant’s guilty plea.
Defendant admitted that he did not report to his probation officer as required by his probation
agreement. Although the trial court did consider defendant’s criminal history in its sentencing
decision, this was not impermissible. Breeding (On Remand), 284 Mich App at 487. Therefore,
defendant having pled guilty to a violation of probation and the trial court having revoked
defendant’s probation based on his admission of said violation, defendant is not entitled to relief
on this issue.

        Next, defendant contends that he was prejudiced by the trial court’s blended decision to
revoke probation and impose a sentence. Again, defendant admitted to the probation violations.
The trial court, after hearing an explanation from defendant and arguments from defense counsel
relating to the violations, accepted defendant’s guilty plea, revoked defendant’s probation, and
imposed a sentence in the middle of the sentencing guidelines. As previously discussed, the trial
court did not plainly err in deciding to revoke defendant’s probation. Moreover, even if the trial
court could have been more clear and direct in its ultimate ruling, we believe that the trial court
complied with the two-step process required by Pillar.

       Defendant also argues that the trial court denied his due process right to a contested
probation violation hearing. However, at the outset of the hearing the trial court asked whether
defense counsel had the opportunity to review and discuss the probation violation report and
presentence update. Defense counsel stated that he did. The trial court then explained to
defendant that if he decided to plead guilty to the probation violations that he would “face the
revocation of [his] probationary status and confinement for up to 15 years or any lesser term
designated by the” trial court. The trial court explained that if defendant pleaded not guilty, he

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was entitled to a hearing, at which he would be represented by counsel, to decide whether he
violated probation. The trial court asked if defendant understood his options. Defendant
answered that he did. Defendant then stated that he wished to plead guilty to the violations and
explain the basis of his probation violations to the trial court. Accordingly, the record shows that
defendant was given the choice to plead not guilty to the probation violations and have a
contested hearing at a later date. However, defendant chose to plead guilty. “The ultimate
decision to plead guilty is the defendant’s . . . .” People v Effinger, 212 Mich App 67, 71; 536
NW2d 809 (1995). As such, the trial court did not deny defendant his due process rights by not
holding a contested hearing. Based on the foregoing, the trial court did not violate defendant’s
due process rights in revoking his probation.

        Next, defendant asserts that he was denied effective assistance of counsel at this
probation violation hearing. “Whether a person has been denied effective assistance of counsel
is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640
NW2d 246 (2002). The trial court’s “factual findings are reviewed for clear error, while its
constitutional determinations are reviewed de novo.” People v Matuszak, 263 Mich App 42, 48;
687 NW2d 342 (2004). However, because defendant failed to move for a new trial or an
evidentiary hearing, this Court’s review of his ineffective assistance of counsel claim is limited
to errors apparent on the record. People v Sabin (On Second Remand), 242 Mich App 656, 659;
620 NW2d 19 (2000).

       Most claims of ineffective assistance of counsel are analyzed under the test
       developed in [Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d
       674 (1984)]. Under this test, counsel is presumed effective, and the defendant has
       the burden to show both that counsel’s performance fell below objective standards
       of reasonableness, and that it is reasonably probable that the results of the
       proceeding would have been different had it not been for counsel’s error. But in
       [United States v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984)], the
       United States Supreme Court identified three rare situations in which the
       attorney’s performance is so deficient that prejudice is presumed. [People v
       Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007) (citations omitted).]

“One of these situations involves the complete denial of counsel, such as where the accused is
denied counsel at a ‘critical stage’ of the proceedings.” Id. The second situation occurs when
“counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Id. at
243 n 10 (quotation marks and citation omitted). The final situation occurs “where counsel is
called upon to render assistance under circumstances where competent counsel very likely could
not.” Id. (quotation marks and citation omitted).

       As an initial matter, defendant does not specify which Cronic situation applies to this
case. However, none of defendant’s claims rise to the level of constructive denial of counsel in
Cronic. First, the fact that a different attorney represented defendant at the probation violation
hearing than the attorney who represented him at his bench trial, does not establish that
defendant was denied counsel at a critical stage, that counsel failed to subject the prosecution’s
case to adversarial testing, or that counsel was put in a situation in which competent counsel
could not render effective assistance. Frazier, 478 Mich at 243, 243 n 10. “An indigent
defendant is guaranteed the right to counsel; however, he is not entitled to have the attorney of

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his choice appointed . . . .” People v McFall, 309 Mich App 377, 383; 873 NW2d 112 (2015)
(quotation marks and citation omitted). As such, defendant has not shown a constructive denial
of counsel in this regard.

        Next, defendant contends that he was constructively denied effective assistance of
counsel because the record does not indicate how much time his counsel spent preparing for the
violation hearing. In support of this argument, defendant attached an e-mail from defense
counsel stating that he believed that he was appointed to represent defendant on the day of the
violation hearing. However, this e-mail was not part of the lower court record. As a result, this
Court cannot consider this evidence “because it is impermissible to expand the record on
appeal.” People v Powell, 235 Mich App 557, 561 n 4; 559 NW2d 499 (1999).

        Moreover, the record does not support that counsel did not have sufficient time to prepare
for the violation hearing. The trial court asked counsel whether he had the opportunity to review
and discuss defendant’s probation violation report and presentence update at the beginning of the
hearing. Counsel stated that he had reviewed those documents. Moreover, counsel argued to the
trial court that defendant was trying to do everything possible to comply with his probation
requirements. He contended that the service provider’s refusal to allow him into the sex offender
treatment program was egregious because defendant was telling the truth. However, counsel
asserted that after defendant’s probation officer violated him for failing to participate in the class,
he attempted to meet with his probation officer in Kent County but was unable to make the trip.
Counsel told the trial court that defendant informed his probation officer of his transportation
issues and that defendant did not commit any other crimes. As a result, counsel asserted that
incarceration would be “extreme in this matter.” Based on the foregoing, the record shows that
counsel had adequate time to prepare for the hearing and was fully informed of the facts of
defendant’s case. Thus, defendant’s contention that he was constructively denied assistance of
counsel because the record does not show how much time counsel spent preparing for the
violation hearing is without merit.

        Finally, defendant contends that he was constructively denied counsel because there was
no break in the proceedings before sentencing. However, at the outset of the hearing, the trial
court explained defendant’s options to him. Specifically, the trial court explained that if
defendant pleaded guilty to the probation violations, that there would be no further hearings, and
that the trial court could revoke probation and impose a sentence within the appropriate
guidelines range. Defendant said he understood. Defendant does not provide any support for his
assertion that he was entitled to a separate sentencing hearing once the trial court decided to
revoke his probation. Moreover, as discussed above, counsel told the trial court that he reviewed
and discussed defendant’s probation violation report and his updated presentence report with
him. In addition, the record does not show that defendant requested a meeting with his attorney
during the hearing to discuss sentencing. Based on the evidence in the record, defendant has not
shown that he was constructively denied assistance of counsel because there was not a separate
sentencing hearing. Therefore, defendant has failed to establish any of the situations stated in
Cronic. Frazier, 478 Mich at 243, 243 n 10.

        Defendant next argues that he was denied effective assistance of counsel under
Strickland, because counsel did not request a contested violation hearing.


                                                 -6-
        To prevail on a claim of ineffective assistance of counsel, a defendant must establish that
“(1) the performance of his counsel was below an objective standard of reasonableness under
prevailing professional norms and (2) a reasonable probability exists that, in the absence of
counsel’s unprofessional errors, the outcome of the proceedings would have been different.”
Sabin (On Second Remand), 242 Mich App at 659 (restating Strickland test). “A defendant must
overcome a strong presumption that the assistance of his counsel was sound trial strategy, and he
must show that, but for counsel’s error, the outcome of the trial would have been different.” Id.

        However, as discussed above, defendant pleaded guilty to the probation violations. The
trial court explained that if defendant pleaded guilty, he would face possible revocation of his
probation and incarceration, and he would not have another hearing. Defendant said he
understood these consequences. See Effinger, 212 Mich App at 71 (concluding that trial counsel
was not ineffective for failing to oppose the defendant’s “decision to plead guilty by strenuously
objecting or otherwise insisting that the case go to trial”). Accordingly, defendant has not shown
that his counsel was deficient for not asking for a contested hearing. Sabin (On Second
Remand), 242 Mich App at 659.

        Furthermore, defendant has not shown that he was prejudiced by counsel’s failure to
request a contested hearing. Defendant asserts that witness testimony regarding his issues with
the service provider would have resulted in a different outcome at his probation hearing.
However, defendant pleaded guilty to the charged probation violations. In addition, the trial
court was more concerned with defendant’s failure to report to his probation officer than his
failure to complete the sex offender treatment class. In fact, the trial court stated that it could
“sort of understand [defendant’s] position about the class, but it seem[ed] . . . that [defendant]
still must realize and did realize that [he] had to report to the probation officer.” As a result,
defendant has not shown that absent his counsel’s failure to request a contested hearing, that the
outcome of his probation violation hearing would have been different. Sabin (On Second
Remand), 242 Mich App at 659. Thus, defendant has not established that he was denied
effective assistance of counsel at his probation violation hearing. Id.

       Affirmed.



                                                            /s/ Patrick M. Meter
                                                            /s/ Stephen L. Borrello
                                                            /s/ Mark T. Boonstra




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