
89 Mich. App. 50 (1979)
279 N.W.2d 573
PEOPLE
v.
WEBB
Docket No. 77-2052.
Michigan Court of Appeals.
Decided March 19, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Nels L. Olson, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant on appeal.
Before: BASHARA, P.J., and BRONSON and C.W. SIMON, JR.,[*] JJ.
BRONSON, J.
Defendant pled guilty to the crime of breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, and was sentenced to a prison term of 4 to 15 years. He now appeals as of right.
Defendant was 17 years old at the time of the offense. Prior to trial, he was placed on two-years probation pursuant to the Holmes Youthful Trainee Act, MCL 762.11 et seq.; MSA 28.853(11) et seq. Less than one year later, the probation department alleged that defendant had violated the terms of his probation and petitioned the court for an order terminating defendant's trainee status. The trial court granted the petition, revoked *53 defendant's trainee status and reinstated the criminal case against him. No hearing was held prior to the time defendant's probation was revoked. Three months later, defendant pled guilty.
The prosecution rightfully concedes that before a defendant's probation status under the Holmes Youthful Trainee Act can be revoked a hearing must be held. People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970). The sole question on appeal is whether defendant's subsequent guilty plea waived his objection to the failure to hold the revocation hearing.
The question of what constitutional defects are waived by a guilty plea has undergone considerable revision in recent years. In Tollett v Henderson, 411 US 258; 93 S Ct 1602; 36 L Ed 2d 235 (1973), defendant sought to have his plea-based conviction overturned because he pled guilty to an indictment returned by an illegally constituted grand jury. The Supreme Court reaffirmed the traditional test set forth in the Brady trilogy[1] and denied defendant relief stating that a guilty plea could only be attacked on the grounds that it was not voluntarily and intelligently made, thus precluding attacks based on constitutional defects not related to this issue.
The rather narrow test set forth in Tollett was broadened, however, in the case of Blackledge v Perry, 417 US 21; 94 S Ct 2098; 40 L Ed 2d 628 (1974). In this case defendant challenged his plea-based conviction on the ground that the offense to which he pled guilty was barred by the double jeopardy clause. The Supreme Court reversed his conviction holding that a guilty plea did not waive *54 defects which "went to the very power of the State to bring the defendant into court to answer the charge brought against him". Blackledge at 20. Since a defendant could no more be brought into court on an invalid indictment (as in Tollett) than on an indictment barred by double jeopardy, the Court distinguished Tollett by stating the defect in that case could have been cured by a properly selected grand jury, while the constitutional defect in Blackledge was incurable.
The Blackledge incurable jurisdictional defect test, however, has not been the final word from the Supreme Court on this issue. In Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195 (1975), the Supreme Court further expounded upon the meaning of Blackledge. The Court stated that a guilty plea was a reliable admission of factual guilt and removes this issue and alleged constitutional defects concerning factual guilt from subsequent attack. A guilty plea does not, however, constitute a waiver for those constitutional defects which are irrelevant to defendant's factual guilt of the crime charged. Accord, Journigan v Duffy, 552 F2d 283 (CA 9, 1977).
Applying this test to the present case it would seem that defendant's guilty plea did not preclude him from attacking his conviction based on the failure to afford him a revocation hearing. A defendant has a constitutional right to a hearing prior to the termination of his trainee status and in the absence of a hearing, the criminal case against him cannot be reinstated. See People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970). The purpose for the revocation hearing is to give the defendant notice of the charges against him and make a determination, based on reliable information, of whether he has committed a probation *55 violation. See Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972). The hearing has nothing to do with determining defendant's guilt on the underlying charge. Since the defect in failing to hold the hearing is totally irrelevant to the question of defendant's factual guilt on the underlying charge to which he pled guilty, it was not waived by the guilty plea.[2]
Defendant's conviction is reversed, and the case is remanded to the trial court for a hearing on the revocation of defendant's trainee status.
C.W. SIMON, JR., J., concurred.
BASHARA, P.J. (dissenting).
I respectfully dissent. The majority rationalizes its decision by analogizing a revocation of placement under the Holmes Youthful Trainee Act to a probation revocation hearing. I cannot agree.
The Holmes Youthful Trainee Act is a strict creation of the Legislature. It provides that the trial judge may, with the consent of a youth between the ages of 17 and 20, assign that person to the status of youthful offender.[1] It further provides that the court may terminate the status at any time. The effect of such termination is simply to reinstate the criminal charges, with no information divulged pursuant to the Youthful Trainee Act to be considered as evidence.[2] In other words, *56 the defendant is placed in the same position as he was prior to trial.
A person deemed guilty of violating probation has already been found guilty of a principal crime. Probation violation assures a penalty. To the contrary, one whose youthful trainee status is revoked is clothed with every presumption of innocence.
There is nothing in the statute which appears to violate due process, nor does the majority question its constitutionality. The revocation of status as a youthful trainee is purely procedural and, as such, is clearly not jurisdictional. In the case at bar, the defendant pled guilty to the principal charge. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), mandates that a plea of guilty waives all nonjurisdictional defects.
People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970), cited by the majority, can be distinguished. There, the defendant pled guilty and was then assigned under the Youthful Trainee Act. The revocation left defendant as having been found guilty, a fact not present in the instant case. A review of the other cases cited by the majority convinces me that they are not applicable to the matter at hand.
I would affirm defendant's conviction.
NOTES
[*]  Circuit judge, sitting on the Court of Appeals by assignment.
[1]  Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970), McMann v Richardson, 397 US 759; 90 S Ct 1441; 25 L Ed 2d 763 (1970), Parker v North Carolina, 397 US 790; 90 S Ct 1458; 25 L Ed 2d 785 (1970).
[2]  This same result could probably have been reached by using the Michigan Supreme Court's decision in People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976). However, since the Federal cases concisely show the progression of the law in this area and Alvin Johnson contains much dicta which is unnecessary to the decision of this case and which we feel no need to address at this time, it was not used as the basis for this decision.
[1]  MCL 762.11; MSA 28.853(11).
[2]  MCL 762.12; MSA 28.853 (12).
