                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     August 7, 2018
               Plaintiff-Appellee,

v                                                                    No. 337686
                                                                     Tuscola Circuit Court
JOHN DAVID VANDERPOOL,                                               LC No. 13-012652-FH;
                                                                              16-013674-FH
               Defendant-Appellant.


Before: CAMERON, P.J., and JANSEN and O’CONNELL, JJ.

O’CONNELL, J. (concurring).

        I concur with Judge Cameron’s well-written opinion. I write separately to point out the
legal insufficiency of the dissenting opinion.

        The dissent agrees that the trial court had the authority to extend probation but takes issue
with the procedure for doing so. The dissent contends that the majority failed to address
Vanderpool’s due process rights. Neither defendant, John David Vanderpool, nor the dissent
identifies a constitutional inadequacy in the procedure for extending or amending probation.

       First, the dissent overextends the legal concept stated in People v Eason, 435 Mich 228,
233; 458 NW2d 17 (1990), that due process requires the prosecution to provide a defendant with
notice of the criminal charges and to prove the statutory elements of the offense beyond a
reasonable doubt. This principle is unquestionably true for obtaining a conviction. After a
defendant has been convicted, however, “[p]robation is a matter of legislative grace.” People v
Glenn-Powers, 296 Mich App 494, 502; 823 NW2d 127 (2012). Even in a probation revocation
proceeding, a defendant has limited constitutional rights compared to a criminal trial. People v
Breeding, 284 Mich App 471, 481; 772 NW2d 810 (2009).

        In addition, the probation officer, not the prosecution, filed the petition to extend
probation, and the burden of proof for obtaining a conviction is more stringent than the burden of
proving a probation violation. A probation officer’s primary function is to oversee the
probationer’s rehabilitation. Gagnon v Scarpelli, 411 US 778, 784; 93 S Ct 1756; 36 L Ed 2d
656 (1973). In this case, the probation officer extended probation to account for the time
Vanderpool was subject to a bench warrant for failing to participate in a presentence
investigation interview after pleading nolo contendere to assaulting a police officer, MCL
750.81d(1). Soon after the trial court signed off on the petition to extend probation, the
probation officer requested four bench warrants in two months for numerous violations of
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probation, including possession of heroin, a scale for distribution, and other drug paraphernalia.
Only after the probation officer obtained these bench warrants did the prosecution attend
hearings regarding the probation violations. 1 Moreover, the prosecution bears the burden of
proving a probation violation by a preponderance of the evidence. Breeding, 284 Mich App at
487. These characteristics unique to probation do not support the extension of due-process
principles governing a criminal trial to a post-conviction extension of probation.

       Finally, the difference between the loss of liberty, following revocation of probation, and
a constraint on liberty, imposed by the continuation of probation, is significant. In Gagnon, 411
US at 781-782, the ruling that due process required a preliminary hearing and a final hearing
before probation could be revoked arose out of a concern for the defendant’s loss of liberty. By
contrast, extending probation does not give rise to a comparable loss of liberty. Applying the
procedural protections for a probationer facing revocation to an extension or amendment of
probation is unwarranted.

       Due process is a balancing act. Morrissey v Brewer, 408 US 471, 481; 92 S Ct 2593; 33
L Ed 2d 484 (1972). The procedure for extending or amending probation already satisfies due
process. See People v Marks, 340 Mich 495, 501; 65 NW2d 698 (1954).

                                                            /s/ Peter D. O’Connell




1
  The prosecution also filed new charges for possession of less than 25 grams of heroin, MCL
333.7403(2)(a)(v), and possession of less than 50 grams of heroin with intent to deliver, MCL
333.7401(2)(a)(iv). Vanderpool waived his rights, including the right to a hearing on the
probation violations, before pleading guilty to a single probation violation and possession of less
than 25 grams of heroin, MCL 333.7403(2)(a)(v). Further, when Vanderpool pleaded guilty to
the probation violation, he agreed that he was on probation during the relevant time period.


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