                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 28, 2015
               Plaintiff-Appellee,

v                                                                  No. 319661
                                                                   Wayne Circuit Court
LENARD JAMES, a/k/a LENARD KEITH                                   LC No. 11-006786-FH
JAMES,

               Defendant-Appellant.


Before: BECKERING, P.J., and CAVANAGH and SAAD, JJ.

PER CURIAM.

       Defendant appeals by leave granted1 the trial court’s revocation of his probation on an
underlying conviction of assault with intent to commit great bodily harm less than murder, MCL
750.84. The trial court sentenced defendant to 80 to 120 months’ imprisonment. Because
defendant was not afforded the requisite minimum procedures at the revocation hearing, we
vacate his sentence and remand for a proper probation violation hearing and any other
appropriate proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This case arises from defendant’s assault of his former girlfriend, which occurred on June
8, 2011, in Detroit. For his assault, defendant was charged, as a fourth habitual offender, MCL
769.12, with assault with a dangerous weapon (felonious assault), MCL 750.82, and assault and
battery against an individual with whom he had a dating relationship (domestic assault), MCL
750.81(2). The prosecutor offered to withdraw the habitual offense notice and the felonious
assault and domestic assault charges in exchange for defendant’s agreement to plead guilty to



1
 This Court originally denied defendant’s delayed application of leave to appeal on January 23,
2014. See People v James, unpublished order of the Court of Appeals, entered January 23, 2014
(Docket No. 319661). On June 24, 2014, the Supreme Court remanded the case to the Court of
Appeals for consideration as on leave granted. See People v James, 496 Mich 856; 847 NW2d
501 (2014).


                                               -1-
assault with intent to commit great bodily harm less than murder as part of a Cobbs2 agreement.
Defendant accepted the offer and pleaded guilty to the agreed upon charge. On August 25, 2011,
the trial court sentenced defendant consistent with the Cobbs agreement, requiring defendant to
serve 12 months in jail, during which he was to complete the “Jail Plus Program,” followed by
24 months of probation, which included completion of a drug treatment program.

        While on probation, defendant failed to meet with his probation officer as required and
was dismissed from the drug treatment program for nonparticipation. On August 20, 2012, the
trial court issued a warrant for defendant’s arrest for this first set of probation violations.

        Before his arrest, defendant allegedly engaged in a series of other criminal offenses
constituting a second set of probation violations. Defendant allegedly assaulted Tammy
Fernandez, a woman with whom he had a romantic relationship, harassed Fernandez and her
mother, Shirley Gorecki, threatened their lives, and killed Fernandez’s dogs. Fernandez obtained
a personal protection order against defendant. It was alleged that defendant also attempted to set
fire to the home of Lilly Guzman, where he believed Fernandez had been living. In addition,
defendant allegedly left Michigan without permission from the trial court and was arrested in
Nevada for driving without a license.

       Defendant was arraigned on the first set of probation violations at a hearing on May 21,
2013, and convicted after a violation hearing on June 5, 2013. At the hearing, the trial court
agreed to sentence defendant to 60 days in jail. The trial court also indicated that it would extend
defendant’s probation for another year. The record does not contain a written order
memorializing the trial court’s decision.

        On June 24, 2013, the trial court held a hearing, which, at the outset, was described as a
hearing at which defendant was “to be arraigned on a violation of probation.” The hearing
concerned defendant’s alleged probation violations stemming from the alleged conduct regarding
Fernandez and Gorecki, as well as defendant’s alleged decision to leave Michigan without
permission. Early on during the hearing, defendant’s counsel stated her belief that the hearing
was “just the arraignment” at which point the trial court interjected, stating “I’m pretty sure he
was already arraigned.” In response, a Department of Corrections Officer stated that defendant
had been arraigned on a different violation already—dismissal from the drug treatment program
and failure to meet with his probation officer—and that the current hearing pertained to new
allegations of probation violations. At this point, the trial court began to ask defendant’s
probation officer about defendant’s assaultive and harassing behavior, then proceeded to ask
Gorecki about some of the behavior. After hearing from Gorecki, defendant interjected, denying
all of the allegations. The trial court did not swear any of the individuals who spoke at the
hearing. It appears from the record that defense counsel was not given an opportunity to cross-
examine anyone who spoke at the hearing.

       After hearing from the individuals noted above, defense counsel began to argue that there
was no evidence to support the new probation violations as they had previously been alleged in a


2
    See People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).


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warrant for defendant’s arrest. At this point, the trial court, without stating that it had found a
violation of probation or that it was revoking defendant’s probation, interjected and sentenced
defendant to 80 to 120 months’ imprisonment.

                                          II. DISCUSSION

        The prosecution bears the burden of proving a probation violation by a preponderance of
the evidence. MCR 6.445(E)(1). A decision to revoke probation must be based on the verified
facts in the record. People v Breeding, 284 Mich App 471, 487; 772 NW2d 810 (2009). This
Court reviews a trial court’s findings of fact for clear error, People v Briseno, 211 Mich App 11,
14; 535 NW2d 559 (1995), and its decision to revoke probation for an abuse of discretion,
People v Laurent, 171 Mich App 503, 505; 431 NW2d 202 (1988). An abuse of discretion
occurs when the trial court’s decision falls outside the range of principled outcomes. Breeding,
284 Mich App at 479.

        In Michigan, probation is considered a matter of grace, and not a matter of right, and a
defendant does not have a vested right in its continuance. See MCL 771.4; People v Harper, 479
Mich 599, 626; 739 NW2d 523 (2007). Upon a finding of probable cause to believe that a
probationer has violated a condition of probation, a court may either: (1) issue a summons for the
probationer to appear for arraignment; or (2) issue a warrant for the probationer’s arrest. MCR
6.445(A). A defendant arrested for an alleged probation violation is entitled to an arraignment
and a violation hearing before the trial court. See MCR 6.445(A)(2); MCR 6.445(B); MCR
6.445(E). Following the violation hearing, the trial court “must make findings in accordance
with MCR 6.403[3].” MCR 6.445(E)(2). If the trial court revokes probation or imposes
incarceration as part of the defendant’s sentence, it “may not sentence the probationer to prison
without having considered a current presentence report and having complied with the provisions
set forth in MCR 6.425(B) and (E).” MCR 6.445(G). The decision to revoke probation involves
a two-step process: (1) the trial determines whether defendant violated probation; and then, (2)
considers whether the violation warrants a revocation of probation. People v Pillar, 233 Mich
App 267, 269; 590 NW2d 622 (1998). If the court revokes probation, it “may sentence the
probationer in the same manner and to the same penalty as the court might have done if the
probation order had never been made.” MCL 771.4. If the trial court revokes probation and
sentences the probationer on the original offense, the legislative sentencing guidelines apply.
People v Hendrick, 472 Mich 555, 560; 697 NW2d 511 (2005).

       Probation revocation hearings “shall be summary and informal and not subject to the
rules of evidence or of pleadings applicable in criminal trials.” MCL 771.4. Nonetheless,
probationers are entitled to certain due process rights at revocation hearings because such
hearings involve the potential loss of liberty. Breeding, 284 Mich App at 483. The due process


3
    MCR 6.403 provides, in pertinent part:
         The court must find the facts specially, state separately its conclusions of law, and
         direct entry of the appropriate judgment. The court must state its findings and
         conclusions on the record or in a written opinion made a part of the record.



                                                 -3-
rights to which a probationer is entitled do not include the full panoply of constitutional rights
that are available at criminal trials. Id.; Pillar, 233 Mich App at 269. Instead, “[d]ue process
requires only that the revocation proceedings be conducted in a fundamentally fair manner.”
People v Ritter, 186 Mich App 701, 706; 464 NW2d 919 (1991). The minimal due process
protections afforded to a probationer include notice, an opportunity to present evidence and to
present a defense, the right to cross-examine adverse witnesses, a neutral and detached trier of
fact, and a written statement as to the finder of fact’s reasons for revoking probation. Gagnon v
Scarpelli, 411 US 778, 786; 93 S Ct 1756; 36 L Ed 2d 656 (1973). See also Breeding, 284 Mich
App at 484. Along these lines, MCR 6.445(E)(1) provides that, at a probation violation hearing:

       The evidence against the probationer must be disclosed to the probationer. The
       probationer has the right to be present at the hearing, to present evidence, and to
       examine and cross-examine witnesses. The court may consider only evidence that
       is relevant to the violation alleged, but it need not apply the rules of evidence
       except those pertaining to privileges. The state has the burden of proving a
       violation by a preponderance of the evidence.

        In addition, this Court has found that a probationer “has the right to insist that any
witness who testifies against him take an oath or affirm to tell the truth.” People v Knox, 115
Mich App 508, 514; 321 NW2d 713 (1982). In Knox, this Court noted that although the rules of
evidence do not apply to a probation revocation hearing, it was nevertheless “fundamentally
unfair to revoke the probation of a defendant on unsworn testimony where said defendant has
demanded that all witnesses against him take an oath.” Id. “To hold to the contrary would allow
witnesses to lie without fear of criminal sanctions since the crime of perjury is not established
unless falsehoods have been made under oath.” Id.

       Defendant was not afforded the minimal due process protections noted above. The
record reveals that none of the witnesses against him was sworn, nor was he given an
opportunity to cross-examine any of the witnesses against him. Instead, the record reveals that
the proceeding appeared to begin as an arraignment, and ended with the trial court imposing a
sentence, without finding a violation of probation or an express finding that defendant’s
probation should be revoked.4 Although probation revocation hearings are to be, pursuant to
MCL 771.4, “summary and informal,” defendant’s revocation hearing in the instant case did not
afford him the minimum measure of due process required for such a hearing. See Gagnon, 411



4
  Although defendant never raised an objection to the procedure below, the lack of an objection
could be explained by the manner in which the court conducted the hearing. Indeed, defense
counsel indicated that the hearing was an arraignment only, and the Department of Corrections
Officer agreed, correcting the trial court’s assertion that defendant had already been arraigned on
the alleged violations that were the subject of the hearing. Yet, at the end of the hearing, the trial
court, with no forewarning, sentenced defendant on the original conviction. Furthermore, to the
extent that defendant’s failure to object to any of the above deficiencies—such as the failure to
swear witnesses—could be found to constitute waiver, we note that our review is appropriate
because defendant contends that his trial counsel was ineffective for failing to raise objections.


                                                 -4-
US at 786. Nor did it comply with the minimal procedures set forth in MCR 6.445(E)(1). As
such, the hearing did not protect defendant’s limited due process rights. Under these
circumstances, we find that the trial court abused its discretion by revoking defendant’s
probation. The appropriate remedy is to vacate the revocation and sentence,5 and to remand for a
proper hearing. See People v Rudnik, 333 Mich 216, 218-219; 52 NW2d 671 (1952); In re
Bobowski, 313 Mich 521, 523; 21 NW2d 838 (1946). See also People v Taylor, 104 Mich App
514, 517; 305 NW2d 251 (1981).

       In light of our resolution of defendant’s challenges to the procedures employed at his
revocation hearing, we need not address the remainder of his challenges on appeal.

       Vacated and remanded for a proper probation violation hearing and any other appropriate
proceedings. We do not retain jurisdiction.

                                                           /s/ Jane M. Beckering
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Henry William Saad




5
  In addition, we note that the sentence imposed by the trial court was a departure from the
recommended guidelines range of 29 to 57 months for defendant’s underlying offense of assault
with intent to commit great bodily harm less than murder. The trial court gave no explanation
for its departure. The failure to justify the departure would represent an independent basis for
reversing defendant’s sentence in this case. See People v Smith, 482 Mich 292, 299-300; 754
NW2d 284 (2008).


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