People v. Vanderpool

325 Mich.App. 493

925 N.W.2d 914

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.John David VANDERPOOL, Defendant-Appellant.

No. 337686

Court of Appeals of Michigan.

Submitted July 13, 2018, at Detroit.

Decided August 7, 2018, 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Mark E. Reene, Prosecuting Attorney, and Eric F. Wanink, Chief Assistant Prosecuting Attorney, for the people.

Kufchock & Associates PLC (by Liane M. Kufchock) for defendant.

Before: Cameron, P.J., and Jansen and O’Connell, JJ.

Cameron, P.J.Defendant, John David Vanderpool, appeals the sentences imposed following his conviction of possession of less than 25 grams of a controlled substance (heroin), MCL 333.7403(2)(a)(v ), second or subsequent offense, MCL 333.7413(2), and for a probation violation. Vanderpool was sentenced to 18 months to 8 years’ imprisonment for the possession conviction, with credit for 271 days served, and to 459 days’ imprisonment for the probation violation,¹ also with credit for time served. On appeal, Vanderpool contends that his conviction and sentences are invalid because the trial court lacked jurisdiction to modify and extend probation three months after his initial term of probation had expired. We conclude that the trial court had jurisdiction to modify and extend probation up to the statutory maximum term even after Vanderpool’s original probationary period expired. Therefore, we affirm.

I. BACKGROUND

In June 2013, the trial court sentenced Vanderpool to a two-year term of probation after he pleaded nolo contendere to assaulting a police officer, MCL 750.81d(1), a felony offense. Vanderpool’s probation prohibited him from possessing controlled substances and authorized probation agents to conduct compliance checks and search his property. While on probation, Vanderpool did not consistently report as directed to the probation department and did not pay his court-ordered fines and costs. His probation was set to expire in June 2015, but the trial court did not enter an order discharging him from probation. In September 2015, approximately three months after Vanderpool’s probation sentence had expired, Vanderpool’s probation officer filed a petition with the trial court to extend probation one year "to allow for the time [Vanderpool] was on warrant status^{[2 ]}... as well and time to pay his Court ordered fines and fees." Because Vanderpool had not successfully completed probation, the trial court extended Vanderpool’s probation to June 2016. On December 30, 2015, probation agents conducting a probation-compliance check found Vanderpool in possession of heroin, resulting in the heroin conviction and the probation revocation at issue in this appeal.

II. DISCUSSION

Vanderpool argues that the trial court did not have jurisdiction to modify and extend his probationary term in September 2015 because his probation had expired in June 2015. Vanderpool maintains that because his probation was not modified and extended before its expiration, the trial court could not later reinstate his probation and extend the probation period. We disagree. We review de novo questions regarding the trial court’s subject-matter jurisdiction and issues of statutory interpretation. People v. Glass , 288 Mich. App. 399, 400, 794 N.W.2d 49 (2010).

A probation sentence for a felony conviction may not exceed five years. MCL 771.2(1). Under MCL 771.2(5),

[t]he court shall, by order to be entered in the case as the court directs by general rule or in each case, fix and determine the period and 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 . [Emphasis added.]

Our Supreme Court addressed the exact issue now before this Court, albeit under the prior version of the probation statute. See People v. Marks , 340 Mich. 495, 498-502, 65 N.W.2d 698 (1954). The probation statute then read:

The court shall by order, to be filed or entered in the cause as the court may direct by general rule or in each case fix and determine the period and conditions of probation and such order, whether it is filed or entered, shall be considered as part of the record in the cause and shall be at all times alterable and amendable , both in form and in substance, in the court’s discretion. [ Id . at 499, quoting 1948 CL 771.2 (quotation marks omitted; emphasis added).]

After interpreting this provision, the Marks Court concluded that trial courts retain jurisdiction to modify probation at any time within the five-year statutory period, even after the original probation period expires. Id . at 501, 65 N.W.2d 698. ("[W]e therefore hold that defendant’s rights were not impinged by the alteration 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."). We are now tasked with interpreting the current version of MCL 771.2(5) in light of Marks .

The initiation of probation-revocation proceedings under MCL 771.4 and the modification of probation orders under MCL 771.2(5) differ significantly. Probation revocation proceedings must commence during the "probation period." Glass , 288 Mich. App. at 408. The "probation period" is defined as "the specific probation term that the sentencing court has imposed on a particular defendant" not the statutory maximum term of probation. Id . During the "probation period," a probation order is "revocable in any manner the court that imposed probation considers applicable either for a violation or attempted violation of a probation condition...." MCL 771.4. Unlike revocations, MCL 771.2(5) authorizes the modification of probation "at any time," and does not refer to the "probation period," and in no way requires that modification occur within that period. If the Legislature has included language in one part of a statute and omitted it from another part, courts should assume that the omission was intentional. Griswold Props., LLC v. Lexington Ins. Co. , 276 Mich. App. 551, 565, 741 N.W.2d 549 (2007). We conclude that the omission of the term "probation period" from MCL 771.2(5) was intentional, and we see no conflict between Marks and Glass .³ Therefore, we hold that a trial court has the authority to modify and extend probation at any time within the statutory maximum period, even after the initial probation period expires.

In this case, the trial court had jurisdiction to extend Vanderpool’s probation. The original probation term had expired when the trial court extended Vanderpool’s probation, but the one-year extension of probation was within the five-year statutory maximum period allowed for felony convictions under MCL 771.2(1). Importantly, the trial court had not entered an order discharging Vanderpool from probation pursuant to MCL 771.6. Instead, the trial court modified probation two months before the compliance check, so the terms of Vanderpool’s original probation were still in effect at that time. Therefore, the compliance check was proper, and Vanderpool’s possession of heroin violated his probation. The trial court initiated probation-revocation proceedings after the discovery of the heroin but before Vanderpool’s extended probationary period expired. Accordingly, the trial court had jurisdiction to revoke Vanderpool’s probation.

The dissent claims that Vanderpool’s due-process rights were violated because he was not given notice that his probation was extended or an opportunity to challenge that a probation extension was justified. This assertion is not supported by the record. The court file demonstrates that Vanderpool was given notice that his probation had been extended because he reported to his probation agent after his probation extension. The court file reveals that on November 12, 2015—after the probation extension but before the search of his house— Vanderpool’s probation agent petitioned the trial court for a bench warrant because Vanderpool violated his probation by testing positive for opiates. A subsequent probation-violation warrant issued on December 3, 2015, further reveals that after Vanderpool was arrested for an unspecified offense on November 18, 2015, he stopped "report[ing] on a weekly basis to the probation office" and "[h]is whereabouts [were] unknown at [that] time." Vanderpool’s conduct of reporting to his probation agent demonstrates that he was provided notice that he was still on probation when he was later caught with heroin.⁴

Moreover, the dissent claims Vanderpool was entitled to an evidentiary hearing before the trial court was able to make any "amendment, modification, or extension of probation." In other words, the dissent would have this Court establish a rule that probation modifications are to be treated the same as probation violations and revocations, which require an evidentiary hearing. Our courts have continually rejected this position. See, e.g., Marks , 340 Mich. at 501, 65 N.W.2d 698 ; People v. Britt , 202 Mich. App. 714, 716, 509 N.W.2d 914 (1993) ; People v. Kendall , 142 Mich. App. 576, 579, 370 N.W.2d 631 (1985). In short, because the trial court modified Vanderpool’s probation within the five-year statutory limit and the revocation occurred while the new probation order was in effect, the trial court had jurisdiction to modify and subsequently revoke Vanderpool’s probation.

Affirmed.

O’Connell, J. (concurring).

I concur with Judge Cameron’s well-written opinion. I write separately to draw attention to the legal insufficiency of the dissenting opinion.

The dissent agrees that the trial court had the authority to extend probation but takes issue with the procedure for doing so. The dissent contends that the majority failed to address Vanderpool’s due-process rights. Neither defendant, John David Vanderpool, nor the dissent identifies a constitutional inadequacy in the procedure for extending or amending probation.

First, the dissent overextends the legal concept stated in...