PEOPLE OF MI V MICHAEL WALTER KACZMAREK
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Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JULY 3, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 114580
MICHAEL WALTER KACZMAREK,
Defendant-Appellant.
___________________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
Michael Kaczmarek was convicted of delivering marijuana1
in August, 1994.
In September, 1998, he pleaded guilty to a
second probation violation.
voters
1
approved
Proposal
MCL 333.7401(2)(c).
During the interim, Michigan
B,
which
amended
the
state
constitution to remove the right of appeal from criminal
defendants who plead guilty.2 The change applies to crimes
committed on or after December 27, 1994.
See § 3 of both 1994
PA 374 and 1994 PA 375.
The question here is whether defendant retains an appeal
as a matter of right from the prison sentence imposed in the
wake of his probation violation. We hold in the affirmative.
Accordingly, we reverse the Court of Appeals dismissal of
defendant's claim and remand for consideration of his appeal
as of right.
Background of the Case
As a consequence of his August, 1994 sale of marijuana,
defendant was arrested and charged with having committed a
felony punishable by up to four years in prison.3 A jury
convicted him in March 1995, and a judge pronounced a two-year
sentence of probation.
Defendant violated conditions of his probation in 1996.
The violation led to an order that extended the term to five
years and imposed additional conditions. Two years later, he
again violated his probation. As a result, in early 1999, the
2
Proposal B was effective December 27, 1994. It amended
Const 1963, art 1, § 20, to state that a criminal defendant
has "an appeal as a matter of right, except as provided by law
an appeal by an accused who pleads guilty or nolo contendere
shall be by leave of the court . . . ."
3
He was charged under the former language of MCL
333.7401(2)(c).
Later amendments and the current language
appear at 1994 PA 221, 1996 PA 249, and 1998 PA 319.
2
judge sentenced him to a prison term of thirty-two to forty
eight months.
Defendant filed a claim of appeal with the Court of
Appeals.
The Court dismissed the claim on the ground that it
lacked jurisdiction to hear an appeal of right in this matter.
The Court ordered:
The claim of appeal is dismissed for lack of
jurisdiction because the January 29, 1999, judgment
of sentence, which was based upon a plea of guilty
to a probation violation that occurred after
December 27, 1994, is not appealable as a matter of
right.
The Court finds that MCR 6.445(H) is
applicable to this case because the amendment of
that court rule was simply a codification of
existing law. That court rule does not determine
the appellate rights of a defendant by what rights
existed at the time the defendant was originally
sentenced. [Unpublished order, entered March 24,
1999 (Docket No. 217835).]
We granted leave to appeal. 463 Mich 892. While his
appeal was pending with this Court, defendant attained parolee
status, rendering his appeal arguably moot.
consider
mooted
questions
that
involve
We sometimes
issues
of
public
significance and are likely to recur, yet evade judicial
review. Lawrence v Toys R Us, 453 Mich 112, 119-120; 551 NW2d
155 (1996), citing In re Midland Publishing Co, Inc, 420 Mich
148, 151-152, n 2; 362 NW2d 580 (1984).
The question in this case is significant because it
involves appellate rights provided by the state constitution
and statutes.
Yet, it will evade review because others who
may raise it, like defendant, also are likely to be on parole
3
by the time their cases reach this Court. See, e.g., Franciosi
v Parole Bd, 461 Mich 347, 348, n 1; 604 NW2d 675 (2000).
Thus, we will address this appeal on its merits.
Proposal B
Before 1994, Michigan's Constitution provided:
In every criminal prosecution, the accused
shall have . . . an appeal as a matter of right
. . . . [Const 1963, art 1, § 20.]
If a defendant was convicted after pleading guilty, he had the
right to be heard on appeal.
People v Smith, 402 Mich 72; 259
NW2d 558 (1977). Likewise, he had a second appeal as of right
in the event he was later found to have violated the terms of
his probation.
People v Pickett, 391 Mich 305; 215 NW2d 695
(1974).
However, those rules changed when, on November 8, 1994,
voters approved Proposal B.
The removal of the right to be
heard on appeal for a person who had pleaded guilty took
effect
December
27,
1994,
implementing legislation.4
the
effective
date
of
the
Specifically, the change "applies
to criminal prosecutions for crimes committed on or after
[that date]." The effective date is drawn from language that
appears at the end of both 1994 PA 374 and 1994 PA 375.
This
Court also has stated that the modified procedures described
in certain amendments to the court rules apply to crimes
4
See 1994 PA 374, amending MCL 770.3 and 1994 PA 375,
amending MCL 600.308(2)(d).
4
committed on or after December 27, 1994.
448 Mich cxiv
(1995).
Probation Violation
For Proposal B to apply to this case, there would have to
have been a "criminal prosecution" for a "crime" that took
place on or after December 27, 1994. Defendant's August 1994
marijuana delivery is the only "crime" involved of which
defendant
sentenced.
has
been
Though
convicted
he
violated
or
for
his
which
he
probation,
has
been
"probation
violation" does not constitute a separate felony in the Penal
Code5 or elsewhere.
As our Court of Appeals has explained, violation of
probation is not a crime, and a ruling that probation has been
violated is not a new conviction. See People v Johnson, 191
Mich App 222, 226-227; 477 NW2d 426 (1991); People v Burks,
220 Mich App 253, 256; 559 NW2d 357 (1996). "If a judge finds
that a probationer violated his probation by committing an
offense, the probationer is neither burdened with a new
conviction nor exposed to punishment other than that to which
he was already exposed . . . ." Johnson, supra at 226.
Instead, revocation of probation simply clears the way
for a resentencing on the original offense.
5
MCL 771.4.6
MCL 750.1 et seq.
6
At the time this matter arose, the language of MCL 771.4
was drawn from 1988 PA 78. The current language is taken from
(continued...)
5
Thus, when the judge sentenced defendant to prison in March
1999, he was sentencing him for the crime of delivering
marijuana, committed in August 1994.7
6
(...continued)
1998 PA 520, which made only stylistic changes.
It states:
It is the intent of the legislature that the
granting of probation is a matter of grace
conferring no vested right to its continuance. If
during the probation period the sentencing court
determines that the probationer is likely again to
engage in an offensive or criminal course of
conduct or that the public good requires revocation
of probation, the court may revoke probation. All
probation orders are revocable in any manner the
court that imposed probation considers applicable
either for a violation or attempted violation of a
probation condition or for any other type of
antisocial conduct or action on the probationer's
part for which the court determines that revocation
is proper in the public interest. . . .
If a
probation order is revoked, the court 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. . . .
7
The dissent questions our view that a sentence for
probation violation is merely a "resentencing" on the original
criminal conviction. Post at 2. It asserts without authority,
that "appellate remedies following probation revocation have
always been governed by our court rules in the absence of
explicit legislation on the subject." Id. Therefore, she
concludes, MCR 6.445(H) should govern and limit defendant's
appeal of right.
We reject this rationale. It overlooks MCL 771.4 which
provides:
If a probation order is revoked, the court 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.
Moreover, as explained in this opinion, the Legislature
(continued...)
6
Because this case arises from a criminal prosecution for
a crime committed before December 27, 1994,Proposal B does not
apply to this defendant. Accordingly, he retains the appeal of
right that was available before it took effect.
Michigan Court Rule 6.445(H)
In its order dismissing defendant's claim of appeal, the
Court of Appeals cited MCR 6.445(H), which currently provides:
(1)
In a case involving a sentence of
incarceration under subrule (G), the court must
advise the probationer on the record, immediately
after imposing sentence, that
(a) the probationer has a right to appeal, if
the conviction occurred at a contested hearing, or
(b)
the probationer is entitled to file an
application for leave to appeal, if the conviction
was the result of a plea of guilty.
(2) In a case that involves a sentence other
than incarceration under subrule (G), the court
must advise the probationer on the record,
immediately after imposing sentence, that the
probationer is entitled to file an application for
leave to appeal.
Defendant argues that the word "conviction" in paragraphs
(1)(a) and (1)(b) refers to the underlying conviction, not the
probation violation, and thus subrule (H) actually supports
his position.
He is incorrect.
Rule 6.445 is entitled "Probation
7
(...continued)
expressly described Proposal B as applying to "crimes
committed on or after December 27, 1994." 1994 PA 374-375, §
3 (emphasis added). The only "crime" committed in this case
occurred before December 1994. Thus, Proposal B does not
apply.
7
Revocation."
It refers throughout to procedure concerning
probation revocations.
"conviction"
in
Hence, it follows that the word
paragraphs
(H)(1)(a)
and
(1)(b)
means
conviction for "probation revocation."
Notwithstanding that interpretation, the defendant is
correct that the language of MCR 6.445(H) does not support the
dismissal of his appeal.
As was indicated at the time it was
added, the court rule's new language merely implemented the
1994 amendment of article 1, § 20 of the Michigan Constitution
of 1963.
to
459 Mich cxcviii, cxcix (1998).
dismiss
a
claim
of
appeal
It cannot be used
properly
filed
under
the
constitution and the implementing legislation.
Issues Available on Appeal
We caution that defendant's appeal of right is limited in
scope. It encompasses only those issues that he could not have
raised in an appeal from his 1995 marijuana conviction.
Pickett, supra at 316-318.
See
Moreover, defendant's plea of
guilty on the allegation that he violated his probation
subsumes
violated.
any
factual
question
whether
the
probation
was
People v New, 427 Mich 482, 488-491; 398 NW2d 358
(1986).
Therefore, unless defendant can identify a
fundamental
flaw in the revocation proceedings,8 his present appeal as of
8
New explains that a plea of guilty or nolo contendere
waives nearly all issues arising before the plea. With regard
(continued...)
8
right is limited to issues arising from the resentencing.
Conclusion
Defendant's marijuana delivery, the only crime involved
and for which he was placed on probation, occurred before
December
27,
1994.
Therefore,
although
defendant
later
pleaded guilty to a probation violation, Proposal B does not
apply, and defendant is entitled to challenge the revocation
of his probation by way of an appeal as of right.
For the reasons stated in this opinion, we reverse the
order of the Court of Appeals and remand this case to that
court for reinstatement of defendant's appeal.
CAVANAGH , WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ., concurred
with KELLY , J.
8
(...continued)
to the plea itself, the record of the present case suggests no
failure to comply with the terms of MCR 6.445(F).
9
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No.
114580
MICHAEL WALTER KACZMAREK,
Defendant-Appellant.
____________________________________
CORRIGAN, J. (dissenting).
I respectfully dissent.
The majority concludes that
defendant has an appeal of right following his plea of guilty
to probation violation because the underlying crime occurred
before December 27, 1994, the effective date of Proposal B and
the implementing statutes.
I would hold that any defendant
who pleads guilty to probation violation is limited to an
appeal
by
leave.
The
date
of
a
probation
violator’s
underlying crime was rendered irrelevant by virtue of our 1998
amendments of MCR 6.445(H).
By allowing an appeal of right in these circumstances,
the majority misconstrues the court rule that governs this
case.
The linchpin of the majority opinion is its view that
1
the sentence for probation violation is a “resentencing” for
the original criminal conviction.
MCL 771.4.
The majority
apparently views the appellate remedies as flowing from that
word.
However, the appellate remedies following probation
revocation have always been governed by our court rules in the
absence of explicit legislation on the subject.
MCR 6.445(H)
specifically addresses this situation and authorizes an appeal
by leave only, irrespective of the date of the underlying
crime.
I
In
1994,
the
electorate
ratified
Proposal
B,
which
amended Const 1963, art 1, § 20 to allow a defendant to appeal
only by leave following a guilty plea.
Const 1963, art 1, §
20 now provides:
In every criminal prosecution, the accused
shall have the right . . . to have an appeal as a
matter of right, except as provided by law an
appeal by an accused who pleads guilty or nolo
contendere shall be by leave of the court . . . .
The Legislature, in turn, implemented Proposal B by
amending MCL 600.308 in 1994 PA 375. Thereafter, the Court of
Appeals jurisdiction over plea-based final orders or judgments
was limited to appeals by leave only.
The Code of Criminal
Procedure was also amended to reflect this procedural change.
MCL 770.3(1)(e), as amended by 1994 PA 374.
The change
“applies to criminal prosecutions for crimes committed on or
after [December 27, 1994].”
1994 PA 375, § 3.
2
This Court
confirmed the same view when it first amended the relevant
court rules.
I
concur
448 Mich cxiv (1995).
with
my
colleagues’
violations are not separate crimes.
in the Penal Code.
views
that
probation
They are nowhere listed
Moreover, I agree with them that one
rational way to view probation revocation is as a resentencing
on the original offense.
MCL 771.4; MCR 6.445(G).
My
disagreement with the majority relates to the course change
this opinion represents.
In treating the instant probation
revocation as a resentencing, the Court rejects, at least in
part,
the
approach
it
took
to
the
problem
of
probation
legislative
direction
revocation in the 1998 court rule amendment.
In
the
absence
of
explicit
regarding appellate review of probation violations, our court
rule
amendment,
effective
January
1,
1999,
specifically
regulated appellate procedure governing probation revocations.
In
my
view,
the
Court
of
Appeals
correctly
dismissed
defendant’s claim of appeal in its succinct order:
The claim of appeal is dismissed for lack of
jurisdiction because the January 29, 1999, judgment
of sentence, which was based upon a plea of guilty
to a probation violation that occurred after
December 27, 1994, is not appealable as a matter of
right.
The Court finds that MCR 6.445(H) is
applicable to this case because the amendment of
that court rule was simply a codification of
existing law. That court rule does not determine
the appellate rights of a defendant by what rights
existed at the time the defendant was originally
sentenced. [Unpublished order, entered March 24,
1999 (Docket No. 217835).]
3
I would affirm that order because nothing in the language
of the governing court rule makes the date of the underlying
crime the triggering event in determining appellate rights
following probation revocations.
The probation-revocation court rule expressly provides
that a defendant who pleads guilty to a probation violation
may only appeal by leave:
(1) In a case involving a sentence of
incarceration under subrule (G), the court must
advise the probationer on the record, immediately
after imposing sentence, that
(a) the probationer has a right to appeal, if
the conviction occurred at a contested hearing, or
(b) the probationer is entitled to file an
application for leave to appeal, if the conviction
was the result of a plea of guilty.
(2) In a case that involves a sentence other
than incarceration under subrule (G), the court
must advise the probationer on the record,
immediately after imposing sentence, that the
probationer is entitled to file an application for
leave to appeal. [MCR 6.445(H) (emphasis added).]
This rule nowhere directs the trial or appellate court to
discriminate in granting appellate rights on the basis of the
date of the underlying offense.
review,
this
Court
has
For purposes of appellate
consistently
treated
probation
violation as distinct from the underlying crime and sentence.
In People v Pickett, 391 Mich 305, 316-318; 215 NW2d 695
(1974),
we
held
that
an
appeal
following
revocation
of
probation is limited to matters relating to the probation
4
violation. We also held that a judgment of sentence resulting
from a probation violation is a “final judgment” for purposes
of appeal rights.
Pickett, supra at 313, 316.
Further, in
People v Rial, 399 Mich 431, 435; 249 NW2d 114 (1976), this
Court, following Gagnon v Scarpelli, 411 US 778, 782; 93 S Ct
1756;
36
probation
L
Ed
2d
656
revocation
is
(1973),
properly
neither
part
recognized
of,
nor
a
that
mere
continuation of, the criminal prosecution for the underlying
offense.
The former MCR 6.445(H) accorded probationers a right to
appeal from a sentence of incarceration.
In late 1997, the
Michigan Judges Association proposed an amendment because of
its
concern
that
the
rule
then
in
effect
still
granted
probation violators a right to appeal although they no longer
had
a
right
to
appeal
underlying offense.
when
they
pleaded
guilty
to
the
This anomaly persisted despite Proposal
B and the amendment of MCR 6.425.
This Court thereafter
published the proposed rule for comment.
The only public comment on file with this Court opposed
the amendment.
It asserted that a defendant’s appeal rights,
including appeal rights from a probation revocation, are
vested or fixed at the time of the original sentencing on the
underlying substantive crime.
The majority’s view today
essentially adopts the lone commenter’s view.
rejected this argument.
The Court
An obvious contrary reason is that
5
probation violations are treated like substantive offenses for
purposes of appellate rights.
Thus, while a defendant is
returned to the position of resentencing as far as sentencing
options were concerned, the factors involved in imposing
sentence are not static, and a defendant is limited on appeal
to asserting matters that were raised during the probation
violation hearing.
The Court apparently adopted the proposed
rule after considering and rejecting the views expressed by
the commenter and various rebuttal arguments.
I believe that hundreds of cases have been decided in
reliance on the amended rule.
court rule.
I would not repudiate that
In this case, the final judgment entered January
29, 1999, did not qualify defendant for an appeal of right.
I would therefore affirm the decision of the Court of Appeals
dismissing defendant’s claim of appeal.
6
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