Preview:

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v BRENT ALVYN GLASS, JR., Defendant-Appellant.

FOR PUBLICATION May 13, 2010 9:05 a.m. No. 290278 Macomb Circuit Court LC No. 2004-001294-FH Advance Sheets Version

Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ. GLEICHER, J. In May 2004, defendant pleaded guilty of larceny from a motor vehicle, MCL 750.356a(1). The circuit court sentenced defendant in July 2004 to a two-year term of probation. In February 2008, the circuit court found defendant guilty of violating the conditions of his probation and imposed a 25-month to 5-year term of imprisonment for the larceny conviction. We granted defendant's delayed application for leave to appeal. We vacate defendant's February 2008 sentence and remand for a discharge of the sentence. Defendant avers that the circuit court lacked jurisdiction to revoke his probation and sentence him to imprisonment because the warrant for the probation violation was issued after his probation term had expired. We consider de novo the legal question whether a circuit court possesses subject-matter jurisdiction and legal issues concerning statutory interpretation. People v Lowe, 484 Mich 718, 720; 773 NW2d 1 (2009); Etefia v Credit Technologies, Inc, 245 Mich App 466, 472; 628 NW2d 577 (2001). The Court's responsibility in interpreting a statute is to determine and give effect to the Legislature's intent. The statute's words are the most reliable indicator of the Legislature's intent and should be interpreted based on their ordinary meaning and the context within which they are used in the statute. Once the Court discerns the Legislature's intent, no further judicial construction is required or permitted "because the Legislature is presumed to have intended the meaning it plainly expressed." [Lowe, 484 Mich at 721-722 (citations omitted).] The circuit court opined that it had jurisdiction to revoke defendant's probation and impose a prison sentenced on the basis of People v Marks, 340 Mich 495, 498-502; 65 NW2d 698 (1954). Our Supreme Court in Marks interpreted 1948 CL 771.2, the predecessor to current MCL 771.2. The defendant in Marks caused a motor vehicle accident and faced a charge of -1-

felonious operation of an automobile. A jury convicted the defendant, and the trial court sentenced him to probation for three years, during which the defendant could not drive a motor vehicle. Marks, 340 Mich at 496. The defendant complied with the conditions of his probation over the course of his three-year probation period. After two people who were injured in the accident with the defendant obtained civil judgments against him, and 4 months and 14 days after the expiration of the defendant's three-year probation term, a probation officer filed a petition to extend the defendant's probation term for two more years and requesting that the court order the defendant to pay restitution to the injured parties. Id. at 497. Ultimately, the trial court entered an order extending the defendant's probation term for two years and requiring that he pay restitution. Id. at 497-498. The defendant challenged on appeal the trial court's jurisdiction to extend his probation period and alter the conditions of probation "after the original period of probation had expired[.]" Id. at 498. In analyzing the issue regarding jurisdiction to modify probation, our Supreme Court quoted the following portion of 1948 CL 771.2: "If respondent is convicted of an offense not a felony the period of probation shall not exceed 2 years, and if he is convicted of a felony, it shall not exceed 5 years. The court shall by order, to be filed or entered in the cause as the court may direct by general rule or in each case fix and determine the period and conditions of probation and such order, whether it is filed or entered, shall be considered as part of the record in the cause and shall be at all times alterable and amendable, both in form and in substance, in the court's discretion." [Marks, 340 Mich at 498-499.] Relying on 1948 CL 771.2 and 771.3, and Michigan and United States Supreme Court caselaw, the Michigan Supreme Court held that the trial court had discretion to "alter and amend" the original order of probation: [W]e, therefore, hold that defendant's rights were not impinged by the alteration in the probation order made within the statutory 5-year period, even though the conditions of the original order had not been violated and its term had expired. The trial judge, under the statute hereinbefore cited, was at liberty "at all times" within the 5-year period to alter and amend the order "both in form and in substance." [Id. at 501-502.] The Supreme Court reasoned that because 1948 CL 771.2 authorized a probation term of up to five years and allowed a trial court to alter or amend a probation order "at all times," a trial court had the discretion to amend an original order of probation at any time within the statutory fiveyear period. The language currently comprising MCL 771.2 bears similarity to the relevant language of its predecessor statute:

-2-

(1) Except as provided in [MCL 771.2a],[1] if the defendant is convicted for an offense that is not a felony, the probation period shall not exceed 2 years. Except as provided in [MCL 771.2a] of this chapter, if the defendant is convicted of a felony, the probation period shall not exceed 5 years. (2) The court shall by order, to be filed or entered in the cause as the court may direct by general rule or in each case, fix and determine the period and conditions of probation. The order is part of the record in the cause. The court may amend the order in form or substance at any time. [MCL 771.2.] Therefore, MCL 771.2 sets forth the same rule as that enacted in 1948 CL 771.2, and analyzed in Marks. See People v Sherman, 38 Mich App 219, 220-221; 196 NW2d 15 (1972) (relying on MCL 771.2 and Marks in holding that the trial court had authority to reinstate the conditions of a defendant's probation after the original probation period ended, but within the five-year statutory period). In this case, the circuit court misplaced its reliance on Marks because the court did not merely alter or amend the conditions contained in defendant's original order of probation, as contemplated in MCL 771.2(2) and Marks. Instead, the circuit court revoked altogether defendant's probation. The Michigan statutory scheme governing probation and Michigan caselaw recognize that a probation revocation must occur, or must at least have been commenced, during the probation period. The Legislature in MCL 771.4 outlined that "[i]f 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." (Emphasis added.) Although MCL 771.4 does not specifically define the term "probation period," reference to surrounding, probation-related statutes reflects that the "probation period" constitutes the particular term of probation imposed by a sentencing court. When interpreting statutory language, the language in question "must be read as a whole," and individual words and phrases "should be read in the context of the entire legislative scheme." Potter v McLeary, 484 Mich 397, 411; 774 NW2d 1 (2009). "[T]he statute must be interpreted in a manner that ensures that it works in harmony with the entire statutory scheme." Id. Probation-related statutes surrounding MCL 771.4 illustrate that the term "probation period" refers to the particular period of probation that a sentencing court has imposed, not the statutory maximum term of probation that a court has authorization to impose--either two or five years under MCL 771.2(1). For example, MCL 771.5(1) reads: When the probation period terminates, the probation officer shall report that fact and the probationer's conduct during the probation period to the court. Upon receiving the report, the court may discharge the probationer from further

1

MCL 771.2a does not apply to this case because it pertains to convictions of stalking, aggravating stalking, child abuse, offenses listed under MCL 28.722 of the Sex Offenders Registration Act, and juveniles placed on probation and committed to an institution or agency described in the Youth Rehabilitation Services Act, MCL 803.301 to 803.309.

-3-

supervision and enter a judgment of suspended sentence or extend the probation period as the circumstances require, so long as the maximum probation period is not exceeded. [Emphasis added.] Additionally, MCL 771.6 states, "When a probationer is discharged upon the expiration of the probation period, or upon its earlier termination by order of the court, entry of the discharge shall be made in the records of the court, and the probationer shall be entitled to a certified copy thereof." (Emphasis added.) Furthermore, as we previously stated, MCL 771.2(1) authorizes the following "probation period[s]": Except as provided in [MCL 771.2a], if the defendant is convicted for an offense that is not a felony, the probation period shall not exceed 2 years. Except as provided in [MCL 771.2a], if the defendant is convicted of a felony, the probation period shall not exceed 5 years. [Emphasis added.] A review of the statutory scheme as a whole confirms that the term "probation period" in MCL 771.4 refers to the specific probation term that the sentencing court has imposed on a particular defendant. In People v Hodges, 231 Mich 656, 660-661; 204 NW 801 (1925), the Michigan Supreme Court cautioned that a revocation of probation under 1915 CL 2032, a predecessor to MCL 771.4, could only occur if probation revocation proceedings had commenced before the defendant's probation period concluded. The Supreme Court summarized the following relevant procedural facts, and offered the following analysis of the defendant's contention that "the sentence . . . imposed after the period of probation had expired . . . was, therefore, void": On April 9, 1923, Lewis Hodges, who had before that pleaded guilty to a charge of breaking and entering, was placed on probation (1 Comp. Laws 1915,

Download PEOPLE OF MI V BRENT ALVYN GLASS JR.pdf

Michigan Law