_____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

___________________________________ 

Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion 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
 

1MCL 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
 

2Proposal 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 . . . ."
 

3He 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 fortyeight 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
 

4See 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
 

5MCL 750.1 et seq.
 

6At 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. . . . 


7The 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