People v. Vanderpool
People v. Vanderpool
Opinion of the Court
*495Defendant, John David Vanderpool, appeals the sentences imposed following his conviction of possession of less than 25 grams of a controlled substance (heroin), MCL 333.7403(2)(a)(v ), second or subsequent offense, MCL 333.7413(2), and for a probation violation. Vanderpool was sentenced to 18 months to 8 years' imprisonment for the possession conviction, with credit for 271 days served, and to 459 days' imprisonment for the probation violation,
I. BACKGROUND
In June 2013, the trial court sentenced Vanderpool to a two-year term of probation after he pleaded nolo contendere to assaulting a police officer, MCL 750.81d(1), a felony offense. Vanderpool's probation prohibited him from possessing controlled substances and authorized probation agents to conduct compliance checks and search his property. While on probation, Vanderpool did not consistently report as directed to the probation department and did not pay his court-ordered fines and costs. His probation was set to expire in June 2015, but the trial court did not enter an order discharging him from probation. In September 2015, approximately three months after Vanderpool's probation sentence had expired, Vanderpool's probation officer filed a petition with the trial court *916to extend probation one year "to allow for the time [Vanderpool] was on warrant status[
Vanderpool argues that the trial court did not have jurisdiction to modify and extend his probationary term in September 2015 because his probation had expired in June 2015. Vanderpool maintains that because his probation was not modified and extended before its expiration, the trial court could not later reinstate his probation and extend the probation period. We disagree. We review de novo questions regarding the trial court's subject-matter jurisdiction and issues of statutory interpretation. People v. Glass ,
A probation sentence for a felony conviction may not exceed five years. MCL 771.2(1). Under MCL 771.2(5),
[t]he court shall, by order to be entered in the case as the court directs 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 case. The court may amend the order in form or substance at any time . [Emphasis added.]
Our Supreme Court addressed the exact issue now before this Court, albeit under the prior version of the probation statute. See People v. Marks ,
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. [ Id . at 499, quoting 1948 CL 771.2 (quotation marks omitted; emphasis added).]
After interpreting this provision, the Marks Court concluded that trial courts retain jurisdiction to modify *498probation at any time within the five-year statutory period, even after the original probation period expires. Id . at 501,
The initiation of probation-revocation proceedings under MCL 771.4 and the modification of probation orders under MCL 771.2(5) differ significantly. Probation revocation proceedings must commence during the "probation period." Glass ,
In this case, the trial court had jurisdiction to extend Vanderpool's probation. The original probation term had expired when the trial court extended Vanderpool's probation, but the one-year extension of probation was within the five-year statutory maximum period allowed for felony convictions under MCL 771.2(1). Importantly, the trial court had not entered an order discharging Vanderpool from probation pursuant to MCL 771.6. Instead, the trial court modified probation two months before the compliance check, so the terms of Vanderpool's original probation were still in effect at that time. Therefore, the compliance check was proper, and Vanderpool's possession of heroin violated his probation. The trial court initiated probation-revocation proceedings after the discovery of the heroin but before Vanderpool's extended probationary period expired. Accordingly, the trial court had jurisdiction to revoke Vanderpool's probation.
The dissent claims that Vanderpool's due-process rights were violated because he was not given notice that his probation was extended or an opportunity to challenge that a probation extension was justified. This assertion is not supported by the record. The court file demonstrates that Vanderpool was given notice *500that his probation had been extended because he reported to his probation agent after his probation extension. The court file reveals that on November 12, 2015-after the probation extension but before the search of his house- Vanderpool's probation agent petitioned the trial court for a bench warrant because Vanderpool violated his probation by testing positive for opiates. A subsequent probation-violation warrant issued on December 3, 2015, further reveals that after Vanderpool was arrested for an unspecified offense on November 18, 2015, he stopped "report[ing] on a weekly basis to the probation office" and "[h]is whereabouts [were] unknown at [that] time." Vanderpool's conduct of reporting to his probation agent demonstrates that he was provided notice that he was still on probation when he was later caught with heroin.
Affirmed.
O'Connell, J. (concurring).
I concur with Judge Cameron's well-written opinion. I write separately to draw attention to 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 ,
In addition, the probation officer, not the prosecution, filed the petition to extend probation, and the *502burden 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 ,
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 ,
Due process is a balancing act. See Morrissey v. Brewer ,
The trial court revoked defendant's probation.
"Warrant status" appears to refer to the period of time during which Vanderpool stopped reporting to the probation department and was subject to a warrant because of his failure to appear.
We also fail to see how Gagnon v. Scarpelli ,
Further, courts speak through their written orders, and Vanderpool remained under the jurisdiction of the trial court until he completed the terms and conditions of his probation, until he was officially discharged, or until the expiration of the five years. Vanderpool was never discharged from probation, and he never completed the terms and conditions of his probation. In fact, Vanderpool was informed that his probation was being extended. Rather than find a probation violation, the trial court extended Vanderpool's probation to allow him to satisfactorily complete the terms and conditions of his probation.
The majority takes the position that the record indicates defendant knew he was still on probation. The majority bases its position on the following: (1) that defendant was aware that he had not yet paid all court-ordered costs and fees; (2) that after his probation had been extended, but before the December 2015 search, defendant's probation agent had petitioned the trial court for a bench warrant because defendant had tested positive for opiates; and (3) that a subsequent bench warrant issued on December 3, 2015, revealed that defendant had been arrested on November 18, 2015, after he stopped reporting to his probation agent on a weekly basis. These facts do not, however, sway my position that due process required that defendant have notice and a hearing before the trial court's entry of an order extending his probation.
Concurring in Part
Although I agree with the majority that the trial court had the authority under MCL 771.2(5) to extend defendant's probationary period, I write separately because I believe due process required defendant have notice and an opportunity to be heard before his probationary period was extended.
MCL 771.2(5) permits a trial court to amend, modify, or extend a defendant's probation period. Accordingly, in this case, the trial court had the authority to extend defendant's probation period so long as it did not exceed the five-year statutory maximum period allowed for defendant's felony conviction under MCL 771.2(1). I therefore concur with the majority's opinion in that regard. However, simply because MCL 771.2(5) vests the trial court with the authority to extend his probation period does not mean that defendant is no longer entitled to due process. Because the majority opinion fails to address defendant's due-process rights, I dissent.
Due process for a criminal defendant generally requires reasonable notice of the charges against him or *504her and an opportunity to have those charges proved beyond a reasonable doubt by the prosecution. People v. Eason ,
I find defendant's reliance on Gagnon v. Scarpelli ,
Both the probationer or parolee and the State have interests in the accurate finding of fact and the informed use of discretion-the probationer or parolee to insure that his liberty is not unjustifiably taken away and the *505State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community. [ Id . at 785.]
By extending defendant's probation period, the trial court extended the constraint on his liberty. In my view, due process requires that defendant be made aware of the extension of that constraint before the extension occurs and that the extension is justified.
In Scarpelli , id . at 786, the United States Supreme Court reiterated that in Morrissey v. Brewer ,
At the preliminary hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decision maker, and a written report of the hearing. The final hearing is a less summary one because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause, but the "minimum requirements of due process" include very similar elements:
(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to [the probationer] or parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders *506as to the evidence relied on and reasons for revoking [probation or] parole. [ Scarpelli ,411 US at 786 , citing and quoting Morrissey ,408 US at 487, 489 (citation omitted).]
I find no reason why these principles should not also apply to the amendment, modification, or extension of probation or parole under MCL 771.2(5).
In light of the foregoing, I would vacate the trial court's orders extending and subsequently revoking defendant's probation *921and remand for proceedings on the petition to extend defendant's probation period that are consistent with defendant's right to due process.
The prosecution also filed new charges for possession of less than 25 grams of heroin, MCL 333.7403(2)(a)(v ), and possession with intent to deliver less than 50 grams of heroin, 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 period.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.