PEOPLE OF MI V EDWARD ONEAL BOWEN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 10, 1998
Plaintiff-Appellee,
v
No. 200493
Genesee Circuit Court
LC No. 91-044666-FC
EDWARD O. BOWEN,
Defendant-Appellant.
Before: Hoekstra, P.J., and Jansen and Gage, JJ.
PER CURIAM.
Defendant appeals as of right from a twenty-two to thirty-five year sentence imposed for assault
with intent to commit murder, MCL 750.83; MSA 28.276, following an adjudication that he violated
the terms of his probation. We affirm.
Defendant was charged with assault with intent to commit murder and armed robbery. Pursuant
to a plea agreement, he pleaded nolo contendere to the assault charge in exchange for dismissal of the
armed robbery charge and a sentence agreement of five years’ probation with the first year in jail.
Defendant was later charged with violating the terms of his probation. Following a hearing, the trial
court found that defendant violated his probation by failing to report, failing to pay restitution, using
illegal drugs, and committing a new crime. Defendant was thereafter sentenced to twenty-two to thirty
five years in prison.
Defendant’s primary claim on appeal is that his due process rights were violated by the manner
in which the violation of probation charges were instituted and heard. He first contends that the two
probation violation warrants were not executed with due diligence. See People v Henry, 66 Mich App
394, 397; 239 NW2d 384 (1976). To ascertain whether the authorities exercised due diligence, it is
appropriate to consider the length of the delay, the reason for the delay, and the prejudice to the
defendant. People v Ortman, 209 Mich App 251, 255; 530 NW2d 161 (1995). We find that the
delay between the alleged violations and the issuance of the warrants, which was one month or less, was
not unreasonable. We further find that the approximate eight-month delay between the issuance of the
warrants and the date of the probation violation hearing did not result from a lack of due diligence, given
-1
that the delay was caused by defendant’s disappearance for three months and the necessity of criminal
proceedings in another county. Moreover, defendant has not shown that he was prejudiced by any
delay. Cf. People v Miller, 77 Mich App 381, 384-385; 258 NW2d 235 (1977).
Defendant next contends that the failure of his probation officer to appear personally and assert
facts based on personal knowledge regarding his failure to report constituted a denial of due process.
People v Taylor, 104 Mich App 514, 517; 305 NW2d 251 (1981). This contention is without merit.
A review of the record shows that the officer to whom defendant was required to report did in fact
testify at the hearing. The officer testified that she directed defendant to report daily and that, while he
did so for approximately a month thereafter, he subsequently failed to report for two consecutive days,
at which time a bench warrant was sought.
Defendant next asserts that he was not given sufficient notice of the allegations against him. The
record indicates that defendant was arraigned on the failure to report warrant five days before the
hearing. Although he was not arraigned on the other warrant until the day before the probation violation
hearing, he was advised of the contents of the other warrant at the earlier arraignment. Also, the basis
of the charged violations were factually very simple, thus requiring little time to determine the existence
of any viable defense. People v Hanson, 178 Mich App 507, 510-511; 444 NW2d 175 (1989).
Ultimately, defendant did not testify at the probation violation hearing or otherwise demonstrate that he
had a valid defense to the charges of which he was found guilty. Therefore, he has not shown that he
was prejudiced by any alleged lack of sufficient notice.
Finally, defendant challenges the sufficiency of the evidence regarding his use of marijuana.
Defendant’s probation officer testified that a urine screen tested positive for marijuana and, when she
reported this fact to defendant, he admitted to having smoked a “blunt.” This evidence was sufficient to
enable the court to find by a preponderance of the evidence that defendant used illegal drugs. Next,
defendant has not cited any authority in support of his contention that failure to admit the toxicology
report precluded a finding of guilt. Therefore, this issue is not preserved. People v LaPorte, 103 Mich
App 444, 452; 303 NW2d 222 (1981). Finally, defendant’s claim that failure to preserve the urine
specimen deprived him of potentially exculpatory evidence is speculative at best and does not require
reversal. Arizona v Youngblood, 488 US 51; 109 S Ct 333; 102 L Ed 2d 281 (1988); People v
Sawyer, 215 Mich App 183, 192; 545 NW2d 6 (1996).
Defendant’s second and third issues on appeal concern his sentence. He first asserts that the
sentence was disproportionate. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). Although
the guidelines do not apply to a probation violation sentencing, People v Williams, 223 Mich App 409,
411; 566 NW2d 649 (1997), defendant’s minimum sentence is within the guidelines as scored for the
underlying offense, thus supporting the conclusion that the sentence is proportionate. Defendant has not
presented any unusual circumstances to overcome a presumption of proportionality. See People v
Lyons (After Remand), 222 Mich App 319, 324; 564 NW2d 114 (1997). We conclude that the
sentence does not violate the principle of proportionality. Milbourn, supra.
Defendant also contends that his sentence was the result of prejudice or vindictiveness on the
part of the sentencing judge. When a defendant is resentenced by the same judge and the second
-2
sentence is longer than the first, there is a presumption of vindictiveness which may be overcome if the
judge enunciates reasons for the longer sentence at resentencing. Lyons, supra, p 323. This case,
however, was not before the trial court for resentencing, but for sentencing after a violation of probation.
Moreover, because the first sentence was imposed pursuant to a sentence agreement, rather than an
independent determination by the trial court, it cannot be validly compared to the second sentence.
Having reviewed the trial court’s comments at sentencing, we find that no improper factors were
considered. The court’s comments were directed principally to defendant’s lack of remorse, which is a
proper consideration in passing sentence. People v Drayton, 168 Mich App 174, 178-179; 423
NW2d 606 (1988).
Affirmed.
/s/ Joel P. Hoekstra
/s/ Kathleen Jansen
/s/ Hilda R. Gage
-3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.