People v. Kaczmarek

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

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. During the interim, Michigan

voters approved Proposal B, which amended the state

1
MCL 333.7401(2)(c).

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. We sometimes

consider mooted questions that involve 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, the effective date of the

implementing legislation.4 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 has been convicted or for which he has been

sentenced. Though he violated his probation, "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. MCL 771.4.6

5
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. Hence, it follows that the word

"conviction" in 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. 459 Mich cxcviii, cxcix (1998). It cannot be used

to dismiss a claim of appeal 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. See

Pickett, supra at 316-318. Moreover, defendant's plea of

guilty on the allegation that he violated his probation

subsumes any factual question whether the probation was

violated. 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. This Court

2

confirmed the same view when it first amended the relevant

court rules. 448 Mich cxiv (1995).

I concur with my colleagues’ views that probation

violations are not separate crimes. They are nowhere listed

in the Penal Code. 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

revocation in the 1998 court rule amendment.

In the absence of explicit legislative direction

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. For purposes of appellate

review, this Court has 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 L Ed 2d 656 (1973), properly recognized that

probation revocation is neither part of, nor a 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 when they pleaded guilty to the

underlying offense. 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. The Court

rejected this argument. 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. I would not repudiate that

court rule. 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