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___________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

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 K ELLY , J. Michael Kaczmarek was convicted of delivering marijuana 1 in August, 1994. In September, 1998, he pleaded guilty to a second p robat ion violation. During the interim, Michigan voters approved Proposal B, which amended the state

1 MCL 333.7401(2)(c).constitutionto 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 both1994 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 Ap peal s 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 felo nyp unishable 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 againviolated 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 cr iminal 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 lan guage of MCL 333.7401(2)(c). Later amendments and the current language appear at 1994 PA 221, 1996 PA 249, and 1998 PA 319. 2judge 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 app eal is dismissed for lack of jurisdictionbecause 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 rul e w as 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

cons ider mooted questions that involve issues of pub li c 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

3by 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: Inevery criminal prosecution, the accused shall have . . . a n 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 onappeal. People v Smith , 402 Mich 72; 259 NW2d 558 (1977). Likewise, he had a second appeal as of right inthe 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, vot ers a pproved 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 o n 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 incertain amendments to the court rules apply t o crim es

4 See 1994 PA 374, amend ing MCL 770.3 and 1994 PA 375, amending MCL 600.308(2)(d). 4committed on or after December 27, 1994. 448 Mich cxiv (1995). Probation Violation For Proposal B to apply to this case, there would have to ha ve 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 whi ch he has been sentenced. Though he violated his probation, "probation violation" does not constitute a separate felony in the Penal Code 5 or elsewhere. As our Court of Appeals has explained, violation of probationis not a crime, and a ruling that probationhas been violated is not a new conviction. See People v Johnson , 191 MichApp 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 convictionnor exposed to punishment other than that to which he was already exposed . . . ." Johnson, supra at 226. Instead, revocation of probation sim ply 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...) 5Thus, when the judge sentenced defendant to pris on 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 matte r 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 c our se of conduct or that the public good requires revocation of probation, the court may revoke probation. All probationorders are revocable in any manner the court that imposed probation considers applicable either for a violation or attempted violation of a probationcondit ion 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 migh t have done if the probation order had never been made. . . .

7 The dissent questions our view that a sentence for probationviolation 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 . Therefor e, she concludes, MCR 6.445(H) should govern and li mit defendant's appeal of right. We rej ect 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 pe nalty as the court might have done if the probation order had never been made. Moreover, as explained in this opinion, the Legislature (continued...) 6Because 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 ) Inits order dismissing defendant's claim of appeal, the Court of Appeals cited MCR 6.445(H), which currently provides: (1) In a case invol ving a sentence of incarcerationunder 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 thanincarceration 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 probationviolatio n, a nd 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 (e mphasi s added). The only "crime" committed in this case occurred before December 1994. Thus, Proposal B does not apply. 7Revocation." It refers throughout to procedure concerning probationrevocations. 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 impleme nted 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 prope rly fi led 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, de fend ant's plea of guilty on t he allegation that he violated his probation subsumes any fa ctual 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

8New explains that a plea of guilty or nolo con tendere waives nearly all issues arising before the plea. With regard (continued...) 8right 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 rever se th e order of the Court of Appeals and re mand this case to that court for reinstatement of defendant's appeal. C AVA NAGH , W EAVER , T AYLOR , Y OUNG , and M ARKMAN , JJ., concurred with K ELLY , 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 re spectfully 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 circumsta nces , the majority misconstrues the court rule that governs this

case. The linchpin of the majority opinion is its view that 1the sentence for probation violation is a “resentencing” for the original criminal conviction. MCL 7 71.4. The majority apparently views the appellate remedies as flowing from that word. However, the appellate remedies following probation revocationhave always been governed by our court rules in the absence of explicit legislationon 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 In1994, the electorate ratified Proposal B, whic h 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: Inevery criminal prosecution, the accused shall have the right . . . to have an appeal as a matter of rig ht, 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, implemente d Proposal B by amending MCL 600.308 in 1994 PA 375. Thereafter, the Court of Appeals jurisdictionover plea-based final orders or judgments

was li mited 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 2confirmed the sam e view when it first amended the relevant court rules. 448 Mich cxiv (1995). I concur wit h my colleagues’ views that probation violations are not separate crimes. They are nowhere listed inthe Penal Code. More over, I a gree with them that one rational way to view probation revocation is as a resentencing

onthe original offense. MCL 771.4; MCR 6.445(G). My disagreement with the majority relates to the cours e ch ange this opinion represents. In treating the i nsta nt 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. Inthe absence of explicit legislative direction regarding appellate review of probationviolations, our court rule amendment, effective January 1, 1999, specifically regulated appellate procedure governing probation revocations. Inmy view, the Court of Appeals correctly dismissed defendant’s claim of appeal in its succinct order: The claim of appeal is d ismi ssed for lack of jurisdictionbecause 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 si mpl y a codification of existing law. Tha t co urt 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).] 3I would affirm that order because nothing in the language of the governing court rule makes the date of the underlying crime t he triggering event in determining appellate rights following probation revocations. The probation-revocation court rule expressly provides that a d efenda nt who pleads guilty to a probation violation may only appeal by leave: (1) In a case involving a sent ence of incarcerationunder 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 f ile an application for leave to appeal, if the conviction was the result of a plea of guilty. (2) In a case that invo lves a sentence other thanincarceration 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 violationas distinct from the underlying crime and sentence. InPeople v Pickett, 391 Mich 305, 316-318; 215 NW2d 695 (1974), we held that an appeal following revocation of probationis limited to matters relating to the probation

4violation. 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 3 13, 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 65 6 (1973), properly recognized that probationrevocation is neither p art of, nor a mere continuation of, the criminal prosecution for the underlying offense. The former MCR6.445(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 probationviolators a right to appeal althoughthey 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 probati on revocation, are vested or fixed at the time of the original sentencing on the underlying substantive crime. The majority’s vi ew today essentially adopts the lone commenter’s view. The Court rejected this argument. An obvious con trary reason is that 5probationviolations are treated like substantive offenses for purposes of appellate rights. Thus, while a defendant is returned to the positionof resentencing as far as sentencing options were concern ed , 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 violationhearing. The Court apparently adopted the proposed rule after considering and rejecting the views expr esse d by the commenter and various rebuttal arguments. I believe that hun dre ds 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.

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