Opinion
Docket No. 95553.
Decided January 19, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Harold F. Closz III, Prosecuting Attorney, and Judith K. Simonson, Assistant Prosecuting Attorney, for the people.
Douglas M. Hughes, for defendant on appeal.
Before: HOOD, P.J., and R.M. MAHER and J.B. SULLIVAN, JJ.
Defendant pled guilty to breaking and entering an occupied dwelling with the intent to commit a larceny, MCL 750.110; MSA 28.305. He was sentenced to two years probation with the first year to be spent in the county jail. Depending upon good behavior, the court would consider an early release after defendant had served only six months. On or about April 18, 1986, defendant was involved in an armed robbery and thereafter tendered a plea of nolo contendere to probation violation. As a result of his plea, probation was revoked and defendant was sentenced to ten to fifteen years in prison. Defendant appeals as of right. We affirm.
At the plea proceeding, defendant requested that he be allowed to offer a plea of nolo contendere rather than a guilty plea because charges on the underlying offenses were pending and defendant did not wish to make any statements which could subsequently be used against him at trial.
For public policy reasons, this Court has adopted the following holding of the California Supreme Court:
"We accordingly declare as a judicial rule of evidence that henceforth upon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal where the probationer's revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceedings are so clearly inconsistent as to warrant the trial court's admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing." [ People v Rocha, 86 Mich. App. 497, 512-513; 272 N.W.2d 699 (1978), lv den 406 Mich. 944 (1979), quoting People v Coleman, 13 Cal.3d 867, 889; 120 Cal.Rptr. 384; 533 P.2d 1024 (1975).]
Prior to accepting the plea, the court informed defendant that for purposes of the probation revocation proceeding it would treat a nolo contendere plea as a guilty plea. With defense counsel present and defendant's express approval, the court went through the regular litany necessary before accepting a guilty plea.
Thereafter, defendant filed a motion to withdraw his plea, arguing that the applicable court rule, MCR 6.111(E), did not authorize a plea of no contest for a probation revocation. The court concluded that the plea was proper and appropriate and therefore denied defendant's motion.
On appeal, defendant claims that he should be allowed to withdraw his plea and, in support thereof, posits the same arguments as he presented below.
Although we recognize that such a plea in this instance is somewhat unusual, we do not find that it warrants reversal. Although MCR 6.111 provides that a probationer may plead guilty at arraignment, we do not interpret the rule as precluding a nolo contendere plea. A plea of nolo contendere literally means, "I do not wish to contend," and indicates that a defendant does not wish to contest his factual guilt. It is an admission of all the essential elements of the charged offense. People v New, 427 Mich. 482, 493, n 10; 398 N.W.2d 358 (1986).
The scope of a probation violation hearing is limited; the procedure is summary and informal. People v Rial, 399 Mich. 431, 436; 249 N.W.2d 114 (1976). It is designed to lead "`to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation.'" (Emphasis in original.) Id., citing Morrissey v Brewer, 408 U.S. 471, 488; 92 S Ct 2593; 33 L Ed 2d 484 (1972).
Given the limited nature of these proceedings, we cannot find any prejudice whatsoever to defendant as a result of the nolo contendere plea. Indeed, any benefit inured to defendant. Moreover, we are particularly offended by defendant's request on appeal to vacate his conviction inasmuch as he requested to plead nolo contendere instead of making the traditional guilty plea for reasons advantageous to himself. Under circumstances such as these, we are not willing to allow a defendant a second chance simply because he is, in all probability, dissatisfied with his sentence. Accordingly, we affirm.