PEOPLE v VANDERPOOL Docket No. 158486. Argued on application for leave to appeal N ovember 6, 2019. Decided July 13, 2020. In August 2016, John D. Vanderpool pleaded no contest to posse ssion of less than 25 grams of heroin, MCL 333.7403(2)(a)( v ), second offense, and to violat ing probation. On June 24, 201 3, Vanderpool had been sentenced to a two-year term of probation a fter pleading guilty to assaulting a police officer. Vanderpool’s term of probation expired on Ju ne 25, 2015. On September 23, 2015, a probation officer petitioned the Tuscola Circuit Court to extend Vanderpool’s term of probation until June 25, 2016. Wit hout providing Vanderpool no tice or a hearing on the petition, the court, Amy Grace Gierhart, J., granted the petition and pur ported to extend Vanderpool’s term of probation until June 25, 2016. On December 4, 2015, probati on officers conducted a compliance check at Vanderpool’s residence and found heroin tha t Vanderpool admitted belonged to him. Vanderpool was arrested on December 30, 2015, when he was again found in possession of heroin, and he was subsequently charged with two counts of p ossession with intent to deliver heroin and violating probation. Vanderpool moved to suppress t he evidence found during the compliance check on the basis that it was not authorized becaus e the circuit court had lacked the authority to extend his term of probation after it had expired. The circuit court denied the motion, and Vanderpool pleaded no contest to one count of possession of heroin and to violation of probation. The Court of Appeals granted Vanderpool’s delayed a pplication for leave to appeal. In a split decision, the Court of Appeals, C AMERON , P.J. (O’C ONNELL , J., concurring, and J ANSEN , J., concurring in part and dissenting in part), affirmed Vanderpool ’s conviction. 325 Mich App 493 (2018). The Supreme Court ordered and heard oral argument on whether to grant Vanderpool’s application for leave to appeal. 504 Mich 872 (20 19). In an opinion by Justice C AVANAGH , joined by Chief Justice M C C ORMACK and Justices B ERNSTEIN and C LEMENT , the Supreme Court held : When read together, MCL 771.2 th rough MCL 771.6 require the re sult that after Vanderpool’s term of probation expired on June 25, 2015, the ci rcuit court no longer had the authority to extend his probati onary period under MCL 771.5(1) or to amend it under MCL 771.2(5). On June 25, 2013, the court fixed Vanderpool’s proba tionary period, as required by MCL 771.2(1), at two years; the two-year period ended on June 2 5, 2015. Under MCL 771.5(1), on or before that date, Vanderpool’s probation officer was requ ired to report on hi s conduct during the probationary term. Pursuant to that statute, upon receivin g that report, the court would have Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Bridget M. McCormack

C hief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh

This syllabus constitutes no part of the opinion of the Court b ut has been prepared by the Reporter of Decisi ons for the convenience of th e reader. Reporter of Decisions: Kathryn L. Loomishad the choice to either discharge Vanderpool from probation or extend the probationary period. However, Vanderpool’s probation officer did not report on Vande rpool’s conduct on or before the two-year term of probation ended on June 25, 2015. Therefore, Vanderpool’s period of probation terminated on that date. When Vanderpool’s probation officer s ought to extend the probation period on September 23, 2015, the court no longer had statutory authority to do so because the period had already terminated under MCL 771.5(1) or expired und er MCL 771.6. Logically, once a period has expired, or come to an end, it cannot be extended. Further, the circuit court’s authority to extend the probation period is conditioned under MCL 771.5(1 ) upon its receiving the report of the probation officer, which must be provided to the court “whe n the probation period terminates”; the court’s attempt to extend the probation period several mont hs after it had terminated did not align with this statutory language. The court also lacked auth ority to amend the probationary period by extending it after it ex pired. MCL 771.2(5) allows t he court to amend a probation order “at any time” while a defendant is under the order of probation . Once the order expired in this case, the court could no longer amend it. The Court of Appeals ’ reliance on People v Marks , 340 Mich 495 (1954), in concluding that MCL 771.2(5) and MCL 771.4 require a contrary outcome was misplaced. Marks did not address whether the pr edecessor to MCL 771.2 allowed a probation order that had expired to be amended. Marks also relied on Burns v United States , 287 US 216 (1932), which addressed probation revocation during the period of probation. Burns therefore did not dictate the result in this case, in which probation was ext ended after the probationary term expired. Additionally, whether Vanderpool was discharged from probation did not depend on whether the court had entered an order discharging him. Vander pool was discharged from probation when the period of probation ended because he was rel ieved of his duty to comply with the terms of probation as of that date. MCL 771.6 recognizes t hat a probationer is simply discharged from probation upon ex piration of the probationary p eriod, which does not require any action by the court.

Reversed and remanded.

Justice Z AHRA , joined by Justices M ARKMAN and V IVIANO , dissenting, disagreed with the majority’s statutory analysis. MCL 771.2(5) permits the circui t court to amend an order of probation “at any time,” in contrast to the language of MCL 771 .4, which requires that a revocation proceeding commence during the “probation period.” The lack of reference in MCL 771.2(5) to the defendant’s “probation period” must be considered intention al in light of the Legislature’s use of the broader “at any time” language in MCL 771.2(5). Accordi ngly, MCL 771.2(5) indicates that the Legislature did not limit a circuit court’s authority to amend a probation order to the “probation period,” and instead, the court may amend an order “ at any time” within the statutory maximum period of five years, eve n after the expiration of the originally imposed period of probation. The majority’s contra ry conclusion relies heavily o n the reporting requirement in MCL 771.5(1) and adds a temporal requi rement. A probation officer is not required by the statute to furnish to the court a report on the defendant’s conduct during probation at the very moment of the defendant’s discharge. Rather, the statute anticipates a s equence of events that occur following the termination of the probation period, including the preparat ion and presentation of the probation officer’s report, which necessarily means the court’s jurisdict ion extends past the expiration of the defendant’s originally imposed period of probation. A defendan t is not automatically discharged from probation when the probation period expires. MCL 771.2(1) makes clear that a trial court maintains jurisdiction over an individual convicted of a felony for up to five years; therefore, Vanderpool should have been aware that his order of probation w as subject to extension until hereceived an order of dischar ge from the court. Justice Z AHRA agreed with the Court of Appeals that due process did not require that Vanderpool receive notice and an opportunity for a hearing before the court extended the order of probation. Although Gagnon v Scarpelli , 411 US 778 (1973), extends due-pro cess protections to th e revocation of pr obation, the extens ion of probation does not result in the type of loss of liberty that is caused b y revocation of parole or probation; due-process protections therefore need not be afforded to defen dants before probation is extended.

©2020 State of MichiganFILED July 13, 2020

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. 158486 JOHN DAVID VANDERPOOL, Defendant-Appellant.

BEFORE THE ENTIRE BENCH

C AVANAGH , J. While conducting a probation comp liance check on defendant John D. Vanderpool’s house, a probation agent found h eroin. Defendant admitted that the heroin belonged to him. A few weeks later, defendant was arrested and was again f ound in possession of heroin. He was charged with two counts of possession with inte nt to deliver heroin and with violating probation. Defendant moved to suppress evidence from the compliance check, arguing that the search was illegal because he was not o n probation at the time of the search, but the circuit court denied the motion. Defendant pleaded no contest to having Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Bridget M. M cCormack

Chief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh2 violated probation and to having possessed less than 25 grams o f a controlled substance, MCL 333.7403(2)(a)( v ), second offense. Defendant has appealed, arguing that becaus e he was not on probation when his home was searched, the search was unlawful. We agree. While the circuit court attempted to extend defendant’s probati on before the compliance check, because the term of proba tion had already expired, the c ourt did not have the authority to extend it. Conseque ntly, the warrantless search o f defendant’s home was not justified. Accordingly, we reverse the Court of Appeals’ judgm ent and remand to the

Tuscola Circuit Court for furthe r proceedings consistent with t his opinion.

I. FACTS AND PROCEDURAL HISTORY Defendant was sentenced to a two-year term of probation on June 25, 2013, after pleading no contest to assaulting a police officer. The terms of probation included a prohibition on the use or possession of controlled substances a nd authorization of compliance checks permitting proba tion officers to search his p roperty. The two years passed; June 25, 2015, came and went; and defendant’s term of p robation expired without the circuit court either discharging defendant from probation o r extending his probation. On September 23, 2015, defendant’s probation officer filed a Pe tition for Amendment of Order of Probation, which request ed that defendant’s term of pr obation be “extended” until June 25, 2016, “to allow for the time he was on warrant status as well [as] time to pay his

Court ordered fines and fees.” The circuit court—without notic e or a hearing—granted the petition and “extended” defendan t’s probation, setting a new ex piration date of June 25,

2016.3 The record is unclear whether defendant continued to comply wit h the terms of his probation, or whether he was asked to comply with the terms of his probation, following its expiration on June 25, 2015, until its “extension” on Septe mber 23, 2015. On November 12, 2015, however, defendant’s pr obation officer sought to have him arrested for failing a drug screen. On December 3, 2015, another arrest warrant indic ated defendant had “stopped” reporting to the proba tion office on a weekly basis, though the order did not indicate when he stopped. On December 4, 2015, probation offic ers conducted a compliance check of de fendant’s home and found heroin, which de fendant admitted belonged to him. Defendant was not arrested that day, but was arrested on December 30, 2015, when a deputy responded to a tip regarding his location a nd warrant status. At the time of his arrest, defendant was again found in possession of heroin, and he was charged

with two heroin offenses as well as violating probation. Defendant moved to suppress the ev idence produced in the search , arguing that the December 4, 2015 compliance check was not authorized because th e circuit court lacked the authority to extend his probation after it had expired. Th e circuit court denied the motion, and defendant pleaded no contest to one charge of posse ssion of less than 25 grams of heroin, second offense, and to the probation-violation charg e. Defendant was sentenced to concurrent prison terms of 18 months to 8 years for the hero in conviction and 459 days for the probation-violation conviction. The Court of Appeals granted defendant’s application for leave to appeal but affirmed his convictions in a split decision. People v Vanderpool , 325 Mich App 493; 925 NW2d 914 (2018). Defendant sought leave to appeal here, and th is Court scheduled oral argument on the application, directing the parties to address w hether the circuit court had4 jurisdiction to extend defendant’s probationary term on Septemb er 23, 2015, and whether the extension of the probationary term without notice and a hea ring violated defendant’s due-process rights. People v Vanderpool , 504 Mich 872, 872 (2019).

II. STANDARD OF REVIEW This Court reviews de novo questi ons of both statutory interpre tation, People v

Carter , 503 Mich 221, 226; 931 NW2d 5 66 (2019), and constitutional la w, People v

Hammerlund , 504 Mich 442, 451; 9 39 NW2d 129 (2019).

III. ANALYSIS Several statutory provisions are relevant to our analysis in th is case. MCL 771.2(1) limits the probationary period for a felony to five years. 1 MCL 771.2(5) requires the sentencing court to set the per iod and conditions of probation and allows the court to amend the order of probation “at any time”: The court shall, by order to be entered in the case as the cour t directs by general rule or in each case, fix and determine the period a nd conditions of probation. The order is part of the record in the case. Th e court may amend the order in form or substance at any time. If the court reduces a defendant’s probationary term under subsection (2), the period by which that term was reduced must be reported to the department of correcti ons.

1 Even under the prosecution’s reading of the statute, defendant would have been discharged June 23, 2018. If the only relief defendant sought were discharge from probation, this case might be in danger of being rendered moot by the passage of time. However, defendant also seeks to have his convictions vacated, arguing that they flowed from evidence that was improperl y obtained during the complianc e check. Further, even regarding discharge from probati on, the relatively short timeli nes involved in probation cases compared with the often s luggish pace of the appellate pr ocess might make this situation one that is capable of repetition, yet evading review . See People v Kaczmarek , 464 Mich 478, 481; 628 NW2d 484 (2001).5 The court can revoke probation “during the probation period.” MCL 771.4. The end of the probationary period and th e probation officer’s duties at t hat time are directed by MCL 771.5(1): When the probation period termina tes, the probation officer sha ll report that fact and the probationer’s conduct during the proba tion period to the court. Upon receiving the report, the court may discharge the probationer from further supervision and enter a judgment of suspended sent ence or extend the probation period as the circumstances require, so lo ng as the maximum probation period is not exceeded. Finally, MCL 771.6 requires a record of discharge. When interpreting a statute, a c ourt’s duty is to “discern the legislative intent that may reasonably be inferred from th e words expressed in the stat ute by according those words their plain and ordinary meaning.” Sotelo v Grant Twp , 470 Mich 95, 100; 680 NW2d 381 (2004). Statutory words and phrases are to be “unders tood according to the common and approved usage of the language,” except when a “pecu liar” legal meaning has attached. MCL 8.3a. The common meaning of statutory words and phrases takes into

account the context in which the words are used. Krohn v Home-Owners Ins Co , 490 Mich 145, 156; 802 NW2d 281 (2011). I n giving meaning to the statut e, “we examine the provision[s] within the overall c ontext of the statute ‘so as t o produce, if possible, a

harmonious and cons istent enactment as a whole.’ ” People v Cunningham , 496 Mich 145, 153-154; 852 NW2d 118 (2014), quoting Grand Rapids v Crocker , 219 Mich 178, 182- 183; 189 NW 221 (1922). Statuto ry provisions “cannot be read i n isolation, but instead must be read reasonably and in context.” Cunningham , 496 Mich at 154. Reading various probation statutes together, we c onclude that after June 25, 20 15, when defendant’s probationary period expired, the circuit court had neither the authority to “extend”6 defendant’s probationary period under MCL 771.5(1) nor to “amen d” the probationary period under MCL 771.2(5). The circuit court fixed defendant’s probationary period, as req uired by MCL 771.2(1), at two years on June 25 , 2013. That two-year period ended on June 25, 2015. On or before that date, the probation officer was required to r eport the termination of the probationary period to the circuit court and report on defendan t’s conduct during the probationary period. MCL 771.5( 1). Upon receiving that report , the circuit court would have had the choice of dischargi ng defendant or extending the p robationary period. Id

. However, defendant’s probation officer did not notify the circu it court or report on

defendant’s conduct on or before June 25, 2015. Defendant’s pe riod of probation therefore

terminated on that date. When defendant’s probation office r sought to “extend” defendant ’s probationary period on September 23, 2015, there was no statutory authority to do so because the period had already “terminate[d],” MCL 771.5(1), or “expir[ed],” MCL 7 71.6. “Terminate” means “to form an ending” and “to come to an end in time.” Merriam-Webster’s Collegiate Dictionary (11th ed). “Expire” mean s “to come to an end.” Id . The most relevant definition of “extend” is “to cause to be longer[;] prolong.” Id . The order of probation was signed on June 25, 2013, and set a two-year term of probati on. By its own terms, the order of probation ended the period of probation on June 25, 20 15. A probationary period that has terminated is over. And therefore, logically, once a period has terminated, it cannot be made longer (extended). Additionally, the circuit court’ s authority to “extend” the pro bationary period is conditioned “[u]pon receiving the report” of the probation offi cer, which must be provided7 to the court “[w]hen the probation period terminates.” MCL 771 .5(1). The phrase “[w]hen the probation period terminates” is unambiguous. “When” means “at or during the time

that.” Merriam-Webster’s Collegiate Dictionary (11th ed). The circuit court’s attempt to extend the probationary period se veral months after the probati on period terminated does not align with the statutory phr ase “when the probation period terminates.” Neither could the circuit court “amend” the order of probation to extend the probationary period under MCL 771.2(5). MCL 771.2(5) allows a sentencing court to amend an order of probation “in form or substance,” including t he term of probation, “at any time.” That is, at any time while defendant was under the order of probation, the court

could have extended the term o f probation by amendment. But, j ust as the court could not “extend” an order that had expired, neither could the court “am end” an order that had expired. The Court of Appeals came to t he opposite conclusion, noting th e textual differences between MCL 771.2(5) and MCL 771.4 and reasoning that we addres sed “the exact issue now before this Court, albeit un der the prior version of the pr obation statute” in our opinion

in People v Marks , 340 Mich 495; 65 NW2d 698 (1954). Vanderpool , 325 Mich App at 497-499 (opinion by C AMERON , P.J.). See also id . at 501 (O’C ONNELL , J., concurring).

The Court’s reliance on Marks was misplaced for two reasons. Marks ’s treatment of whether a sentencing court has statutory authority to extend a term of probation after the term has expired failed to accoun t for the entire statutory sch eme. And Marks ’s treatment of the due-process question relied on general principles that d o not require a particular

outcome in this case.8 In Marks , the Court considered whether the sentencing court had “jurisd iction and authority to extend the probation period for an additional 2 ye ars and alter the original terms of probation to include r estitution after the original pe riod of probation had expired[

. ]” Marks , 340 Mich at 498. Marks quoted the statutory predecessors of MCL

771.2 and MCL 771.3. Id . at 498-499. The predecessor of MCL 771.2 was similar to the current statutory text, and the quoted portion of the MCL 771.3 predecessor discussed a sentencing court’s authority to impose restitution as a term of probation. Marks , 340 Mich

at 498-499. Without further discussion of either section, and without any d iscussion of the then-existing version of MCL 771 .5, which set forth the same re quirements as the current version, Marks held that a defendant is not denied due process when restituti on is imposed as a condition of probation without a hearing. Id . at 499, citing People v Good , 287 Mich 110; 282 NW 920 (1938). Marks did not explain how the predecessor of MCL 771.2, which provided that an order of probation “shall be at all time s alterable and amendable, both in form and in substance, in the court’s discretion,” mean t that a probation order that has expired could be amended. Nor did the court address the in terplay with MCL 771.5.

Neither Marks ’s unexamined reference to MCL 771.2 nor its reliance on Good ’s dueprocess holding controls this case. Lastly, Marks quoted at length from Burns v United States , 287 US 216; 53 S Ct 154; 77 L Ed 266 (1932). See Marks , 340 Mich at 500-501. The defendant in Burns , a federal probationer, had his prob ation revoked during the first year of a five-year probationary term, and Burns addressed what procedure was required in order to successfully terminate the probationary period. Burns , 287 US at 217-219, 222-223. So,

Burns addressed probation revocation occurring during the period of probation. Marks ’s9 discussion of Burns also addressed what constitutiona l procedures, like notice, ar e required to extend probation; those cons titutional issues are irrelevant here. Consequently, there is no holding from Burns that dictates a result here—whe re probation has been extended after the probationary term has expired. 2 Judge C AMERON reasoned that it was “important” that the circuit court “had n ot entered an order discharging V anderpool from probation pursuant to MCL 771.6,” but he

did not elaborate. Vanderpool , 325 Mich App at 499 (opinion by C AMERON , P.J.). We cannot see why an expired order of probation can be extended be fore a defendant’s discharge is recorded but not after. Defendant was indeed enti tled to have his discharge recorded as detailed in MCL 771.6, but the circuit court’s fail ure to carry out its duty to do so did not expand its authority to extend defendant’s term of p robation. The prosecution takes this further, arguing that defendant was not discharged. This

is incorrect. Defendant was d ischarged from probation when the period of probation ended. MCL 771.6. “Discharge” means “to relieve of a charge, load, or burden[;] . . . to release from an obligation.” Merriam-Webster’s Collegiate Dictionary (11th ed). The order of probation set the end of the def endant’s obligations on June 25 , 2015. On that day,

2 Furthermore, the due-process analysis in Marks is dubious given that the United States Supreme Court has rejected the rights-privilege distinction tha t previously dominated legal thinking. See, e.g., Morrissey v Brewer , 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484 (1972) (“[T]his Court now has rej ected the concept that constit utional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.’ ”). See also Gagnon v Scarpelli , 411 US 778, 782, n 4; 93 S Ct 1 756; 36 L Ed 2d 656 (1973) (“I t is clear . . . that a probationer can no longer be denied due proc ess, in reliance on the dictum . . . that probation is an ‘act of grace.’ ”). But give n our disposition of this matter on statutory grounds, we do not reach the due-process argument.10 defendant was relieved of his charge to comply with the terms o f probation, and he was therefore discharged. The circuit court’s failure to carry out its obligation to record this event and provide defendant with documentation as required by s tatute does not result in defendant having to comply with the expired order. The prosecution elaborated at or al argument that the end of the term of probation is nothing more than a “control date” or “review date” and probati on continues unabated until a defendant’s discharge from prob ation is recorded or a defenda nt has served the five-year statutory maximum. Although a d efendant might expect his or he r term of probation to conclude on the last day of the term as described by the order of probation, the prosecution represents that in practice, pr obation officers often inform de fendants to the contrary. But this understanding of the proba tion end date essentially conver ts every term of probation to a five-year term. This reading conflicts with the p lain meaning of the statute in that an order of probation that has expired cannot be amended, as described abov e. This reading also fails to produce a “harmonious and con sistent enactment as a whole,” Cunningham , 496 Mich at 153-154, because the careful description in MCL 771.5(1) of how a probation period

should end in either extension o r discharge would be little mor e than a misleading suggestion that probation officer s and sentencing courts would be free to ignore. Why require the trial cour t to fix an initial pe riod of probation i f the court can c hange the terms and length of probation at any time within the five-year maximu m; that is, even after that initial fixed peri od has expired? The prosecution does not offer any statutory support for the id ea that the end of a term of probation is merely a “control date” without independen t effect. To the contrary,11 MCL 771.2(5) requires the senten cing court to “fix and determin e the period and conditions of probation,” while MCL 771.2(1 ) sets an upper limit for felon y probationary terms, requiring that “the probation period shall not exceed 5 years.” If every term of probation were five years, then there would be no period for the sentenci ng court to “fix and determine.” If the period that t he sentencing court fixed and determined ended with a mere “control date,” then the period being determined would not be t he “period . . . of probation” because the period of probation would be anything up to five ye ars. Additionally, if the prosecution were correct that defendants remain on probation un til discharge is recorded without regard to the expiration of the period of probation, it is not clear why the period of probation would even n eed to be extended. The prosecution is correct that sentencing courts have wide dis cretion in setting terms of probation. See MCL 771.3(2) and (3). Nothing in our holding constrains courts from exercising that discretion when setting the period and con ditions of probation. And

courts also have the authority to extend t he period of probatio n through amendment under MCL 771.2(5) or at the termination of the period of probation u nder MCL 771.5(1). They simply do not have the author ity to extend a probation period t hat is already over. The dissent largely focuses on MCL 771.2(5), which states that a sentencing court “may amend the order in form or substance at any time.” The di ssent points out that, in contrast, the revocation procedure in MCL 771.4 limits a senten cing court’s power to a time “during the probation peri od.” And given that MCL 771.4 i ncludes an explicit temporal limitation but MCL 771. 2(5) lacks such a limitation, s o the argument goes, the court must retain the power to amend the terms of probation at any time, even after the expiration of the probation peri od. The only limitation the di ssent sees in the sentencing12 court’s power to amend an order of probation is the “statutory maximum period of five years.” The absence of a temporal limitation in MCL 771.2(5) combined w ith the presence of a temporal limitation in MCL 771.4 is a textual clue relevan t to this discussion, to be sure. But that textual clue must be weighed in light of the ot her textual evidence that supports our interpretation. Scalia & Garner, Reading Law: The Interpretation of Legal

Texts (St. Paul: Thomson/West, 2012 ), p 59 (“The skill of sound cons truction lies in assessing the clarity and weight of each clue and deciding wher e the balance lies.”). The language “at any time” in MCL 771 .2(5) indicates that the sente ncing court has broad power to amend the order of probation. But that power, in ligh t of the statute as a whole, as we discussed earlier, is lim ited to when the order is operat ive. The dissent argues, like the prosecution does, that the order o f probation remains operative after it has expired b ecause the court has not entere d an order of discharge under

MCL 771.6. The dissent does no t explicitly adopt the prosecuti on’s description of the expiration of the order of probation as a mere “control date,” but the logic is the same. In the dissent’s view, so long as th e statutory maximum period has not yet been met when the order of probation expires, nothing happens. However, this reading of the statu te fails to adequately addres s the language of MCL 771.6, which states that “[w]hen a probationer is discharged up on the expiration of the probation period, or upon its earlier termination by order of t he 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.” MCL 771.6 recogni zes that while a court may ter minate probation before the expiration of the probation period, and conversely, that a court may also extend13 probation before the expiration of the probation period, a prob ationer is simply discharged from probation upon the expirati on of the probation period. No where in the language of MCL 771.6 is there a requirement that a court act to discharge a probationer upon the termination of the original prob ation period set by the origina l probation order; a court need only act in order to amend that probation order, which otherwis e expires according to its original terms if there is no timely intervention. This reading of MCL 771.6 is not hostile to the language found in MCL 771.5(1). As even the dissent recognizes, “when” may be defined in contex t to refer to “at or during the time that” or “upon or after which.” Given the plain langu age of MCL 771.6, it is the

first definition of “when” that allows for the most cohesive re ading of both MCL 771.5(1)

and MCL 771.6. MCL 771.6 dictat es that a probationer is discha rged from probation upon the expiration of the original pr obation period, absent earlier intervention by a court to modify the original probation order. MCL 771.5(1) merely ackno wledges the reality that a probation officer must prepare a report concerning a probatio ner’s conduct and submit it to the court, which relies on that report to make a decision as to whether to amend the order before a probationer is discharged up on the expiration of the probati on period. In other words, the phrase “so long as the maximum probation period is n ot exceeded” in MCL 771.5(1) modifies the extent to w hich a court may extend a prob ation period if it moves to amend the probation order in a timely manner. But MCL 771.6 re stricts a court’s ability14 to amend an order to the time before a probationer is automatic ally discharged upon the expiration of the probation period. 3 Although the dissent argues that the original order of probatio n could not have expired because defendant failed to fulfill some of his obligat ions under the order, a probationer’s discharge from probation does not eliminate all o bligations that were previously incurred. Similarly to child support orders that of ten expire upon a child reaching the age of majority, the expiration of such an order m erely reflects the lack of future obligations but does not impact outstanding obligations that w ere incurred while the

order was in effect. Further, we reject the idea that a defendant should ignore the face of the order of probation, which specifies a fixed term. The idea that nothing happens when an order of probation expires conflicts wit h our direction that an order of probation “must be sufficiently clear to enable the probationer to know what he is required to do in order to comply with it,” People v Sutton , 322 Mich 104, 109; 33 NW2d 681 (1948), and “specify the period during which it is to continue,” Hill v Hill , 322 Mich 98, 103; 33 NW2d 678 (1948).

3 The dissent argues that our read ing of the statute “strips the trial court of [its] important duty” to discharge defendants. W e disagree. Here, the sentenc ing court retained its authority to amend the order of probation for the entire period it specified in its own order. The sentencing court did fail to carry out the evaluation requi red by MCL 771.5 “[w]hen the probation period terminate[d],” and in doing so allowed the period to expire. The sentencing court stripped itself of its duty by failing to addr ess defendant until months after his probationary period expired.15 The dissent worries our reading of the statute would be “very d ifficult, if not impossible, to accomplish in prac tice.” The dissent notes that a probation officer’s report must describe the conduct during the probationary period, and t hat must “necessarily include the moments leading right up to termination.” So, in t he dissent’s view, the probation officer would wait until the last day of the probatio nary period to write the report, then submit the report to the sentencing court, which would con sider it at some later date past the expiration of the proba tionary period. We have every confidence that sentencing courts can navigate this responsibility. 4 In practice, probation officers already perform a very similar, if not more burdensome, function in preparing presentence investigation rep orts for sentencings. While all that is required by MCL 771.5(1) is to generally repo rt the termination of probation and “the probationer’s conduct during the probation p eriod,” these same probation agents comply with muc h more stringent statutory requ irements in preparation for sentencing. In addition to a host of specific information that might be compiled ahead of sentencing, 5 MCL 771.14 requires an inquiry into “the antecedents, characte r, and circumstances of the person,” MC L 771.14(1), as well as “[a]n e valuation of and a prognosis for the person’s adjustment in the community based on factual information

4 Furthermore, Michigan’s manual for probation officers already instructs them to “review the probationer’s file in a timely fashion.” See SCAO, Manual for District Court Probation Officers (Dec 2019), § 7-08(B), p 154, available at <https://courts.michig an.gov/administratio n/SCAO/Resources/Docu ments/Publications/ Manuals/prbofc/prb.pdf> (accessed May 19, 2020).

5 See MCL 771.14(2 )(a) through (h).16 contained in the report,” MCL 771.14(2)(a). In practice, this includes a defendant’s conduct while awaiting sentencing and events that transpire bet ween completion of the report and sentencing, which are offered orally to the court. Probation officers can and do comply with statutory deadlines. 6 Even supposing the dissent’s analysis were correct, there

would still be a lot of blanks to fill in. If a probationer’s responsibility to comply with the terms of probation did not end w hen the order of probation indi cated it would, it would not be clear how the probationer would know when his or her respons ibilities ended. If a probationer’s term of probation continued past its expiration, and the sentencing court was not required to comply with the procedure in MCL 771.5 at that time, it would not be clear how long the sentencing court co uld wait to make a decision. I f the only limitation on the court’s power to amend an order of probation was the statutory maximum term, it would not be clear whether a sentencing court could amend an order of probation even after entering an order of discharge. For these reasons, the trial cour t lacked authority to extend d efendant’s probation. Because defendant was not on pr obation, officers had no authori ty to enter his home and

conduct a warrantless search unde r the probation exception to t he Fourth Amendment. See Griffin v Wisconsin , 483 US 868; 107 S Ct 3164; 97 L Ed 2d 709 (1987); US Const, A m IV; Const 1963, art 1, § 11.

6 At any rate, the dissent’s solu tion of extending the probation ary period does not solve the problem the dissent imagines. In the dissent’s view, the proba tionary period would continue past the expiration of the original term of probation until the sentencing court entered an order of discharge. Probation officers would still have to report on the intervening period.17 IV. CONCLUSION Because the trial court was without authority to extend defenda nt’s probation, we reverse the judgment of the Court of Appeals and remand the cas e to the circuit court for further proceedings.

Megan K. Cavanagh Bridget M. McCormack Richard H. Bernstein Elizabeth T. ClementS 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. 158486 JOHN DAVID VANDERPOOL, Defendant-Appellant.

Z AHRA , J. ( dissenting ). I respectfully dissent. The issues presented in this case are whether the trial court was statutorily permitted to extend defendant’s probationary te rm after it expired but before defendant was formally discharged, and if so, whether due proce ss entitled defendant to notice and a hearing before the court did so. I agree with the Court of Appeals that the trial court maintained jurisdiction to extend defendant’s probationar y term after its expiration, because MCL 771.2(5) permits the amendment of a defendant’s ord er of probation “in form

or substance at any time .” 1 This is in contrast to the re vocation of probation, which mus t take place during the specific “probation period” imposed on a particular defendant pursuant to MCL 771.4. In this case, while defendant’s origina l term of probation had expired when the trial court ex tended it, the trial court never discharged defendant from probation, and the court’s one-year extension was within the fi ve-year statutory maximum

1 Emphasis added.2 period prescribed by MCL 771.2(1). The trial court therefore m aintained jurisdiction to extend defendant’s probationary period after its expiration. Defendant’s due-process rights we re not violated by this extens ion. A defendant is entitled to the due-process protections of notice and a hearing before a revocation of his or her probation. But this case doe s not involve a revocation of probation. Instead, the trial court merely extended the term of defendant’s probation. Proba tion is a noncustodial supervisory period far less onero us to a probationer than the i ncarceration that generally results from the revocation of probation. The mere extension o f probation does not constitute a “grievous loss” o f liberty entitling a defendant t o the due-process protections requested by defendant. For t hese reasons, I would affirm the lower courts.

I. BASIC FACTS AND PROCEEDINGS On June 25, 2013, defendant was s entenced to two years’ probati on after pleading no contest to assaulting a police officer, a felony. 2 The terms of defendant’s probation barred the use or possession of c ontrolled substances. Probati on agents were also authorized to conduct compliance checks and search defendant’s property. While on probation, defendant did not consistently report to th e probation department as directed and did not pay his court-ordered fines and fees. Defendant’s probation was due to expire on J une 25, 2015, but the trial cou rt did not enter an order discharging him from probation at that time. On September 23, 2015, defendant’s probation agent file d a petition with the t rial court to extend defendant’s probation for one year “to allow for the time [def endant] was on warrant status a s well [as] time to pay his

2 MCL 750.81d(1).3 Court ordered fines and fees.” The trial court granted the pet ition and extended defendant’s probation to June 25, 2016. On November 12, 2015, defendant’ s probation agent petitioned th e trial court for a

bench warrant because defendant tested positive for opiates. D efendant was arrested for an unspecified offense on November 18, 2015. Notwithstanding t he bench warrant issued for drug use, defendant was aga in released on bond and informed to report weekly to the probation office. Defendant, however, stopped reporting to the probation office on a weekly basis. Another probation-violation warrant was issued o n December 3, 2015. On December 4, 2015, probation agen ts conducted a compliance check at defendant’s home and found heroin, which defenda nt admitted belonged to him.

Defendant asserts that the Decemb er 4, 2015 compliance check le d to his subsequent arrest, when he was again found in possession of heroin. Defen dant was charged with intent to deliver less than 50 grams of heroin, MCL 333.7401(2) (a)(iv), second or subsequent offense, MCL 333.7413( 2), and with possession with i ntent to deliver less than 25 grams of heroin, MCL 333.7403(2)(a)(v), second or subsequent offense, MCL 333.7413(2). Defendant was also charged with violating probati on. Defendant moved to suppress the evidence and for dismissal of t he charges. He challenged the legality of the December 4, 2015 compliance chec k, arguing that he was not on probation at that time because the trial court lacked the au thority to extend his probationary period beyond June 25, 2015. The trial court deni ed defendant’s motion. Defendant thereafter pleaded no contest to possession of less t han 25 grams of heroin, second or subsequent offense, and to the probation violation. On September 29, 2016, the4 trial court sentenced defendant to concurrent prison terms of 1 8 months to 8 years for the drug-possession conviction and 4 59 days for the probation viola tion. The Court of Appeals granted defendant’s application for leave to appeal and

affirmed defendant’s convictions in a sp lit decision, with the majority relying on People v

Marks , 340 Mich 495; 65 NW2d 698 (1954 ), to hold that “the trial cou rt had jurisdiction to modify and extend probation up to the statutory maximum term even after [defendant’s] original probationary period expired.” 3 Defendant sought leave to appeal in this Court, and in lieu of granting leave to app eal, we ordered oral argument o n the application, directing the parties to file supplemental briefs addressing (1) whether the trial court had jurisdiction to extend defendant’s probationary term in September 2015 and ( 2) whether the extension of the probationary term without notice or a hearing violated d efendant’s due-process rights. 4

II. STANDARD OF REVIEW

We review de novo constitutional issues and matters of statutor y interpretation. 5

3 People v Vanderpool , 325 Mich App 493, 496-499; 925 NW2d 914 (2018).

4 People v Vanderpool , 504 Mich 872 (2019).

5 People v Harris , 499 Mich 332, 342; 885 NW2d 832 (2016).5 III. ANALYSIS 6

A. THE STATUTORY SCHEME PERMITS A TRIAL COURT TO EXTEND A TERM OF PROBATION AFTER ITS EXPIRATION The question presented is whether a trial court maintains juris diction to extend a defendant’s probationary term after it has expired but before a n order is issued discharging the defendant from probation. T his question is answered by the interpretation of several

statutes that are relevant to th is inquiry. MCL 771.2(1) provi des that a probation period for a felony conviction “shall not exceed five years.” 7 MCL 771.2(5) provides that the trial court may amend an order of probation “at any time:” The court shall, by order to be entered in the case as the cour t directs by general rule or in each case, fix and determine the period a nd 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 . If the court reduces a

6 As an initial matter, I questi on whether the issues presented are properly preserved. It appears that defendant did not raise a due-process argument in the Court of Appeals. In his application to that court, d efendant’s question presented a sked only whether he was entitled to resentencing because “Tuscola Count y authorities de layed in petitioning for an amendment of probation from June 2015 through September of 2015 .” “The failure to raise a question in the lower cour t precludes the Supreme Court considering it on appeal.” Young v Morrall , 359 Mich 180, 187; 101 NW2d 358 (1960). In his application t o this Court, defendant, perhaps inspired by the Court of Appeals diss ent, presented only the question of whether the Due Process Clause “require[s] that a p robationer be given notice and an opportunity to be heard on a probation officer’s petitio n to extend probation[.]” Defendant did not present to this Court the question of whether the trial court maintained jurisdiction to extend his proba tionary term after its expirati on. Thus, both issues posed by this Court’s order directing oral argument are arguably unpr eserved. But because this Court asked the parties to address both issues, and because the majority resolves this case on the merits, I will address the s ubstantive issues in this di ssent.

7 Defendant’s original convicti on for assaulting a police office r is a felony for purposes of both the Penal Code and the Code of Criminal Procedure. MCL 75 0.81d(1); MCL 761.1(f).6 defendant’s probationary term under subsection (2), the period by which that term was reduced must be reported to the department of correcti ons. [8] MCL 771.4, pertaining to the re vocation of probation, provides: It is the intent of the legislature that the granting of probat ion is a matter of grace conferring no vested right to its continuance. If during the probation period the sentencing court determ ines that the probationer is likely again to engage in an offe nsive or criminal course of co nduct or that the public good requires revocation of probation, the court may revoke probation. All probation orders are revocable in any manner th e court that imposed probation considers app licable either for a violation o r attempted violation of a probation conditi on or for any other type of ant isocial conduct or action on the probationer’s part for which the court determi nes that revocation is proper in the public interest. Hearings on the r evocation shall be summary and informal and not subject to the rules of evidenc e or of pleadings applicable in criminal trials. In its probation orde r or by general rule, the court may provide for the apprehension, detention, an d confinement of a probationer accused of viol ating a probation condition or conduct inconsistent with the public goo d. The method of hearing and p resentation of charges are within the court’s discretion, except that the p robationer is entitled to a written copy of th e charges constituting the clai m that he or she violated probation and to a pr obation revocation hearing. The court may investigate and enter a disposition of the probationer as the c ourt determines best serves the public interest. If a probation order is revok ed, the court may sentence the probationer in the same manner and to the same pen alty as the court might have done if the pro bation order had never been mad e. . . . [9]

MCL 771.5(1) governs the procedure to be followed upon the term ination of a probationer’s period of p robation. It provides: When the probation period termina tes, the probation officer sha ll report that fact and the probationer’s conduct during the proba tion period to the court. Upon receiving the report, the court may discharge the probationer from further supervision and enter a judgment of suspended sent ence or

8 Emphasis added.

9 Emphasis added.7 extend the probation period as the circumstances require, so lo ng as the maximum probation period is not exceeded. [10]

Finally, MCL 771.6, which requires a record of discharge, provi des: When a probationer is discharged upon the expiration of the pro bation 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 pr obationer shall be entitled to a certified copy thereof. Reading these statutes as reasona bly as possible, harmoniously, and in their entirety, 11 I agree with the Court of Appeals that the trial court possess ed the authority to extend defendant’s originally im posed probationary period after its stated date of expiration. The language of MCL 771.2(5) pertaining to the amendment of pro bation orders differs significantly from that o f MCL 771.4 pertaining to the revocation of probation. MCL 771.2(5) states that the “c ourt may amend the [probation] o rder in form or substance at any time.” This broad langua ge, permitting amendment “at an y time,” is in contrast to the language of MCL 771.4, which requires that a revocation pro ceeding commence during the “probation period.” 12 The reference in MCL 771.4 to a defendant’s “probation period ”

10 MCL 771.5(1).

11 People v Cunningham , 496 Mich 145, 153-154; 852 NW2d 118 (2014), quoting Grand Rapids v Crocker , 219 Mich 178, 182-183; 189 NW 221 (1922) (“[W]e examine the provision[s] within the overall c ontext of the statute ‘so as t o produce, if possible, a harmonious and consis tent enactment as a whole.’ ”).

12 The “probation period” for purpo ses of MCL 771.4 “refers to th e specific probation term that the sentencing court has imposed on a particular defendant ,” not the statutory maximum term of probation. People v Glass , 288 Mich App 399, 405; 794 NW2d 49 (2010).8 is absent from MCL 771.2(5), an omission that we must consider intentional, especially when coupled with the Legislature’s specific use of the broader “at any time” language in MCL 771.2(5). 13 Thus, we must assume that the Legislature intentionally decli ned to impose in MCL 771.2(5) the tem poral limitation referred to in M CL 771.4. Accordingly, the Court of Appeals correctly held that a trial court is not c onfined to the terms of the “probation period” when amending probation, which includes the extension of probation. Instead, as plainly stated in MCL 771.2(5), a trial court has t he authority to amend probation “at any time” within the statutory maximum period of five years, even after the expiration of the originally i mposed period of probation. In concluding to the contrary, the majority relies heavily on t he requirement in MCL 771.5(1) that “[w]hen the proba tion period terminates, the prob ation officer shall report that fact and the probationer’s conduct during the probation pe riod to the court.” The majority takes this reporting requirement and engrafts onto it a temporal requirement not expressly found in the statute. Specifically, the majority rea ds this statute to mean that if the probation officer does not pro vide the required report to t he trial court before or at the very moment that a probation period expires, the trial court lo ses jurisdiction over the probationer to extend the proba tion period since it has already “terminated” or come to an end. The majority’s myopic reading of the law is flawed. Not only would it be odd for a probation officer’s inaction to s trip a court of jurisdiction, but this interpretation is unworkable in practice and contra ry to the plain language of th e statute.

13 See Farrington v Total Petroleum, Inc , 442 Mich 201, 210; 501 NW2d 76 (1993) (“Courts cannot assume that the Legislature inadvertently omitt ed from one statute the language that it placed in another statute, and then, on the ba sis of that assumption, apply what is not there.”).9 MCL 771.5(1) does not require t hat the probation officer furnis h his or her report to the court before or at the very second a probation period expir es. To the contrary, MCL 771.5(1) anticipates an extension of probation after the expiration of a defendant’s period of probation. The first sentence of MCL 771.5(1) says that “[w ]hen the probation period terminates, the probation office r shall report,” and the second sentence says that “[u]pon receiving the report,” the court may discharge the probationer from further supervision or extend the probation period. This language makes clear the leg islative understanding that there is going to be some passage of time between these two eve nts—the termination of the probation period and the court’s receipt of the probation o fficer’s report. The statute is written in a manner that contemp lates a sequence of events: (1) the termination of the probation period, (2) the preparation of a report by the probat ion officer, (3) the presentation of this report to the court, and (4) the court’s d ischarge of the probationer from further supervision or the ext ension of the probation period. This sequence clearly envisions that a court’s jurisdiction extends past the expirati on of the defendant’s originally imposed period of probation. 14

14 The majority’s reliance on the definition of “when” as “ ‘at o r during the time that’ ” is not particularly helpful given that “when” can also be defined in a manner favorable to the dissent. (Citation omitted.) Indeed, one of the definitions o f “when” is “upon or after which; and then.” Random House Webster’s College Dictionary (1992). In other words, it is completely reasonable to i nterpret the language “when the probation period terminates” to mean “after the probation period terminates” the probation officer must provide the court with a report and then, once the court receiv es the report, the court can either discharge the defendant from probation or extend probati on. The majority relies on dictionary definitions of the terms “ter minate” and “expire” to conclude that defe ndant’s term of probation came to an “end. ” But I see no reason why a period that has come to an e nd cannot later be extended. And , as discussed later in this opinion, I do not believe that the mere passage of time can per manently “terminate” a10 Additionally, the majority’s rea ding of MCL 771.5(1) would be v ery difficult, if not impossible, to accomplish in prac tice. The required report mus t indicate that the defendant’s probation period has terminated, which a probation officer cannot indicate until after the probation period has actually terminated. The report must also describe the probationer’s conduct during the probation period, which would necessarily include the moments leading right up to termination. If the probationer vi olates a condition of probation moments before the per iod of probation terminates, th e probation officer would have to include a description of this conduct in his or her rep ort. Simply put, this is an impossible task to impose on a rapidly moving, high-volume tria l court. A trial court with dozens, if not hundreds of proba tioners cannot be expected to a ccept a report at the very moment that the probationer’s p robation period terminates. For these reasons, I find the majority’s reliance on MCL 771.5 to be unpersuasive. Relatedly, I disagree with the majority’s understanding of an o rder of “discharge” as contemplated by the statutory scheme. The majority, relying on a dictionary defining “discharge” to mean “ ‘to relieve of a charge, load, or burden[ ;] . . . to release from an obligation,’ ” concludes that “ [d]efendant was discharged from probation when the period of probation ended.” 15 But the mere expiration of a probation period does not automa tically

probation period and result in the automatic discharge of a def endant from probation. Indeed, had the Legislature inte nded an automatic discharge to enter, it would not have afforded the sentencing court th e opportunity to take other act ion. Recall that MCL 771.5(1) permits the sentencing court to either “discharge the probationer from further supervision and ente r a judgment of su spended sentence or extend the probation period as the circumstances require.” (Emphasis added.)

15 Citation omitted.11 discharge a defendant from probation. If this were the case, t here would be no reason for MCL 771.5 to require “ the court ” to “discharge the probationer from further supervision” “[ u ] pon receiving the report.” 16 The statute clearly contemplat es that it is the court that

must take the affirmative act of discharging a defendant from p robation. The majority also opines that the “circuit court’s failure to carry out its oblig ation to record this event [the discharge] and provide defendant with documentation as required by statute does not result in defendant having to comply with the expired order.” 17 But the issuance of an order discharging a defendant from pr obation is not the ministerial t ask that the majority makes it out to be. Instead, MCL 771.5 requires the trial court to e xercise its discretion in determining whether discharge is appropriate after receiving th e report from the probation officer detailing the probationer’s conduct on probation. 18 The majority’s conclusion that

16 Emphasis added.

17 This case does not present to us the question of whether a def endant must comply with the conditions of probation impose d in his or her original orde r of probation during the period after the expiration of t hat order and before its extens ion. The search that defendant claims was unlawful was conduc ted while defendant was subject t o the conditions imposed after his probationary period was extended. Therefore, the onl y question at issue is whether the trial court was permitted to extend defendant’s probationar y period after its expiration.

18 It is because of this directive in MCL 771.5 that I am not per suaded by the majority’s reliance on MCL 771.6. MCL 771.6 simply requires that a record be made of a discharge. It does not purport to set forth the discharge procedure, but i nstead provides the procedure governing what shall happen after there has been a discharge: “entry of the discharge shall be made in the records of the court, and the probationer shall be entitled to a certified copy thereof.” In contrast, MCL 771.5 provides instructions as to t he discharge process itself and explicitly indicates that it is the court that must either extend the probation period or “discharge the probationer from further supervision.” The repo rting requirement in MCL 771.6 cannot trump the discharge instructions set forth in MCL 771.5.12 the mere passage of time results in a “discharge” strips the tr ial court of this important duty. 19 It is also ironic that the majority “reject[s] the idea that a defendant should ignore the face of the order of probati on,” when defenda nt did just th is by failing to comply with the explicit terms of his probation. It is undisputed that def endant failed to consistently report to the probation department, and significantly, he did n ot pay the fines and fees required by his order of probation. I am hard-pressed to concl ude that defendant would reasonably expect to be automa tically discharged from a period of probation that he did not successfully complete. The majority is correct that courts speak through written orders. But defendant’s order of probation did not state that his disch arge from probation would be automatic upon the expiration of the originally imposed term . Moreover, the trial court never “spoke” to defendant through an order of discharge to inf orm him that he was released from his probation obligations. 20 Because MCL 771.2(1) makes clear that a trial

19 We must bear in mind that an important purpose of probation is to rehabilitate a defendant. See People v Miller , 182 Mich App 711, 713; 452 NW2d 890 (1990) (courts may impose conditions of probation under MCL 771.3(4) so long a s there is a rational relationship between the restric tion and rehabilitation). MCL 771.2(5) gives trial courts broad discretion to amend and m odify probation orders as needed in furtherance of this rehabilitation effort. Automatic ally releasing a probationer f rom probation without the probation officer or trial cour t examining a probationer’s perf ormance while on probation undermines the effort to ensure that he or she has been rehabil itated.

20 The majority asserts that it “cannot see why an expired order of probation can be extended before a defendant’s discharge is recorded but not aft er.” We are not tasked with considering in this case whether a court may extend a term of p robation after the court discharges a defendant from prob ation. That is not what happen ed here. MCL 771.5 requires a trial court to either extend a term of probation or discharge a defendant from probation. The trial court in this case never discharged defen dant from probation, so there13 court maintains jurisdiction ov er an individual convicted of a felony offense fo r up to five years and given that defendant d id not successfully complete th e terms of his probation, it should not have come as a surpri se to defendant that his order of probation was subject to

extension until he received an o rder of discharge from the cour t. 21 In this case, while defendant’s original probationary period ha d expired when the trial court extended it, the one -year extension was within the five-year statutory maximum period prescribed by MCL 771.2(1). The trial court therefore m aintained the authority to extend defendant’s probationary p eriod after its expiration. T he compliance check at issue,

is no question as to whether the court surrendered its jurisdic tion over defendant. It did not.

21 I disagree with the majority that this interpretation “essenti ally converts every term of probation to a five-year term.” And I equally disagree with th e majority’s statement that “[i]f every term of probation were five years, then there would be no period for the sentencing court to ‘fix and dete rmine.’ ” A trial court is pe rmitted to impose a five-year term of probation for a felony fro m the outset pursuant to MCL 771.2(1), but may impose a lesser term if it believes that this will be sufficient to re habilitate the defendant. The entire reason that MCL 771.2(5) permits amendment of an order o f probation “at any time” is because the trial court needs flexibility to amend a defenda nt’s probationary terms and conditions depending on the performance of the probationer. It may very well be the case that the initial term “fixed and determined” by the court will require no modification, but it might also be the case that a defendant is noncompliant with the probationary terms, warranting an extension or modi fication of the initially fixed and determined terms and conditions. I do not share the ma jority’s apparent concern tha t permitting a court to extend a probationary period after its expiration will convert all ter ms of probation into five-year terms. If a trial court has al ways possessed the authority to impose a five-year term of probation from the outset, there is no reason to believe that a court will take advantage of the ability to extend a probationary period after its extension to convert every lesser term of probation into a five-year term.14 which was conducted after this extension of defendant’s probati on period, was lawful under the statutory scheme. 22 B. DUE PROCESS DOES NOT REQUIRE ADDITIONAL NOTICE AND AN OPPORTUNITY TO BE HEARD BEFORE THE EXTENSION OF PROBATION Given my conclusion that the statutory scheme permitted the tri al court to extend defendant’s probationary period after its expiration, I must ad dress whether due process required that defendant receive notice and an opportunity to be heard before this extension.

Both the United States Constituti on and the Michigan Constituti on of 1963 dictate that no person may be deprived of life, liberty, or property wi thout due process of law. 23 In finding a due-process violation in this case, the dissenting Court of Appeals judge relied on a couple of cases from the United States Supreme Court. 24 In Morrissey v Brewer , 25 the Supreme Court concluded that the Due Process Clause of the Four teenth Amendment

22 My review of the statutory scheme leads to the same result tha t this Court reached in Marks , 340 Mich 495. Although a different version of MCL 771.2 was at issue in Marks , the language of the relevant statute was substantially the same . In Marks , 4 months and 14 days after the expiration of the original period of probation, the trial court extended the defendant’s probation for a period of two years and added the c ondition of restitution. This Court held that “defendant’s ri ghts were not impinged by the al teration 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.” Id . at 501. As this Court explained, “[t]he trial judge . . . was at liberty ‘at all times’ within t he 5-year period to alter and amend the order ‘both in form and in substance.’ ” Id . at 501-502. “The only limitation, and this applies to both the grant and any modification of it, is that t he total period of probation shall not exceed 5 years.” Id . at 501.

23 US Const Am XIV; Const 1963, art 1, § 17.

24 See Vanderpool , 325 Mich App at 503-506 (J ANSEN , J., concurring in part and dissenting in part).

25 Morrissey v Brewer , 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972).15 requires that a state afford an individual some opportunity to be heard before revoking his or her parole. In reaching this conclusion, the Court “ ‘rejec ted the concept that constitutional rights turn upon whether a governmental benefit is characterized as a “right” or as a “privilege,” ’ ” and instead clarified that “[w]hether any procedural protections are due depends on the extent to which an individual will be ‘conde mned to suffer grievous

loss.’ ” 26 The Court reasoned that the ter mination of parole “inflicts a grievous loss” because while on parole a parolee is able “to do a wide range o f things open to persons who have never been convicted of any crime,” but, “[i]n many ca ses, the parolee faces lengthy incarceration if his parole is revoked.” 27 In determining what process was due, the Court held that “[w]hat is needed is an informal hearing struct ured to assure that the finding of a parole violation will be bas ed on verified facts and that the exercise of discretion will be informed by an accurate knowled ge of the parolee’s behavior. ” 28 The Court then explained the procedures that s hould apply, including both a pr eliminary and a final revocation hearing. 29

In Gagnon v Scarpelli , 30 the Supreme Court of the United States held that the same due-process protections that appl y to the revocation of parole apply to the revocation of probation, noting that the “[p]e titioner does not contend that there is any difference relevant

26 Id . at 481 (citations omitted).

27 Id . at 482 (quotation marks omitted).

28 Id . at 484.

29 Id . at 484-489.

30 Gagnon v Scarpelli , 411 US 778, 782; 93 S Ct 1 756; 36 L Ed 2d 656 (1973).16 to the guarantee of due process between the revocation of parol e and the revocation of probation, nor do we perceive one.” 31 This precedent is meaningfully d istinguishable from the case at hand, as the loss of liberty that follows the revoca tion of parole or probation is s ignificantly different than the substantially lesser constraint on liberty imposed by the exten sion of a period of probation.

Per Morrisey , the pertinent inquiry is wheth er the extension of probation c ondemns a probationer to suffer “grievous loss” such that due process req uires notice and an opportunity to be heard. It does not. As the Court explained in Morrissey , a parolee and a probationer are able “to do a wide range of things open to pers ons who have never been convicted of any crime.” 32 “Though the State properly su bjects [a probationer] to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison.” 33 Indeed, “the liberty of a parolee [and a probationer] . . . includes many of the core values of unqualif ied liberty . . . .” 34 In sum, probation is a noncustodial supe rvisory period far less onerous to the probationer than the incarceration that generally res ults from the revocation of pro bation or parole. For this reason, the extension of probation does not result in the type of “grievous loss” caused by the revocation of parole or probation. Consequently, while the extension of probation

31 Id . at 782.

32 Morrissey , 408 US at 482.

33 Id

.

34 Id

.17 restricts one’s liberty to a ce rtain extent, it does not consti tute a “grievous loss” entitling a defendant to additional due-process protections.

Federal courts that have addresse d this issue have likewise dec lined to apply Morrissey and Gagnon to the extension of probation. 35 I find the reasoning set forth by the United States Court of Appeals for the Third Circuit in Skipworth v United States to be particularly persuasive: After careful consideration of the principles set forth in Morrissey and Gagnon and their applicability to this case, we do not believe that d ue process required notice and a hearing prio r to the extension of the pet itioner’s probation. While we acknowledge that probation entails signifi cant restrictions on an individual, an extension of probation is cle arly not as “grievous” a “loss” as revocation, and here it entailed no grea ter restrictions than those which existed previously. In fact, the primary “los s” suffered by an individual whose probation has been extended lies not in the continuing restrictions themselves, but i n the possibility of future revoc ation. While

35 See Skipworth v United States , 508 F2d 598, 601-602 (CA 3, 1975); United States v Carey , 565 F2d 545, 547 (CA 8, 1977); United States v Cornwell , 625 F2d 686, 688 (CA 5, 1980); Forgues v United States , 636 F2d 1125, 1127 (CA 6, 1980); United States v Silver , 83 F3d 289, 291-292 (CA 9, 1996). Our Court of Appeals has also held that a defendant need not be given an opportunity to be heard before t he trial court extends his or h er probation period, People v Kendall , 142 Mich App 576, 579; 370 NW2d 631 (1985), or adds a new con dition of probation, People v Graber , 128 Mich App 185, 190-191; 339 NW2d 866 (1983). This Court concluded in Marks , 340 Mich at 499-502, that due pr ocess does not require notice or a hearing prior to the alteration of a probation order after its expiration, but did so in part by relying on People v Good , 287 Mich 110; 282 NW 920 (1938), and Burns v United States , 287 US 216; 53 S Ct 154; 77 L Ed 266 (1932), for the proposit ion that probation is a “period of grace” and is a privi lege rather than a right. As noted above, the Supreme Court in Morrissey “rejected the concept that constitutional rights turn upon whe ther a governmental benefit is charact erized as a ‘right’ or as a ‘pri vilege.’ ” Morrissey , 408 US at 481 (quotation mark s and citation omitte d). For this reason , I apply the “g rievous loss” test referred to in Morrissey rather than focusing on probation’s status as a “privilege.” See id

. at 481-482. Consequently, while I reach the same result that t his Court reached in Marks , I do so for different reasons.18 such a loss is indeed serious, it is merely potential at the ti me of extension, and the due process clause clearly provides the protection of a hearing in the event that revocation proceedings should subsequently occur. W e add that the petitioner in fact received a revocation hearing at which h e was represented by counsel.

We also note that the kind of f actual inquiry in an extension proceeding is quite different fro m that in a revocation proceed ing. In revocation proceedings, the tria l judge must reasonably satisfy himself that the probationer has broken some law while on probation or has o therwise violated a condition of his proba tion. While the judge has con siderable discretion as to whether to orde r revocation, he must at a mini mum make an initial factual finding of a proba tion violation. A revocation hearing, therefore, provides the probationer with the crucial opportunit y to contest an allegation of violation. In granting an extension, however, the trial judge is given gre ater latitude, and he need not find that any probation violation has occurred. For example, in United States v Squillante , 144 F Supp 494, 497 (SDNY 1956), the court refused to terminate t he probation which it had previ ously extended, despite finding that the probationer had complied with the expr ess condition of his probation, because it believed that “the best interest o f society warrants the continuation of supervision over the probationer.” [36] Furthermore, the applicable statutes already provide a probatio ner with sufficient notice that extension of his or her probation period is a possi bility. MCL 771.2(5) notifies defendants that “[t]he court may amend the [probation] order in form or substance at any time.” In addition, MCL 771.5(1) notifies defendants that “[w] hen the probation period terminates . . . the court may . . . extend the probation perio d as the circumstances require, so long as the maximum probatio n period is not exceeded.” And MCL 771.2(1) notifies defendants that the maximum probation period for felonies is fi ve years. These statutes

inform defendants convicted of fe lonies that their period of pr obation may be extended up to five years. Moreover, defendants have an opportunity to be heard at their trials or plea

36 Skipworth v United States , 508 F2d at 601-602.19 hearings and at sentencing before the trial court originally im poses probation. For the reasons set forth above, defend ants are not entitled to an addi tional opportunity to be heard after probation is ordered when th e trial court is merely exten ding probation.

IV. CONCLUSION

I conclude that the trial court maintained jurisdiction under t he applicable statutory scheme to extend defendant’s p robationary period after its expi ration. I further conclude

that this extension did not viola te defendant’s due-process rig hts. I would therefore affirm the lower courts. I respectfully dissent.

Brian K. Zahra Stephen J. Markman David F. Viviano