Court Of Appeals Reaffirms That Defendants May Reject Probation

A criminal defendant can decline probation and be sentenced to incarceration instead, the Michigan Court of Appeals has ruled in People v Bensch, reaffirming four decades of case precedent.

The 2-1 published decision in Bensch (Docket No. 341585) upholds the rule first set forth in People v Peterson, 62 Mich App 258 (1975), allowing criminal defendants to reject probation for jail time.

The Court of Appeals in Bensch struck down the prosecution’s argument that Peterson should be overruled. The prosecution had claimed that Peterson is “no longer good law” because the possible rationales for that decision have been repudiated.

“We disagree,” Judge Douglas Shapiro wrote, joined by Judge Jane Beckering. “In the absence of a compelling reason to do so, we decline to overrule a longstanding rule of law that has been repeatedly relied on by this Court.”

Judge Jonathan Tukel disagreed with the majority’s conclusion. “Because I believe that Peterson was incorrectly decided and that the justifications given by the majority for adhering to it are inadequate, I respectfully dissent,” he wrote.

Objection Denied

The defendant pleaded guilty to operating while intoxicated, second offense. The plea agreements arose out of two separate incidents occurring over a period of about five months. The district court sentenced the defendant to one year in jail and two years’ probation.

Immediately afterward, defense counsel objected to the probationary sentence. According to defense counsel, “if Mr. Bensch doesn’t wan[t] to be on probation … I don’t think the court can put him there.” The district court denied the objection.

The defendant appealed to the Lenawee County Circuit Court, arguing that he could reject probation in favor of incarceration under Peterson. The defendant asserted the district court erred by forcing him to accept a probationary sentence in the second case, thus disregarding Peterson, which he asserted was controlling under the doctrine of stare decisis.

The prosecution acknowledged that Peterson was binding on lower courts but tried to factually distinguish it from the defendant’s case. The prosecution also offered policy arguments as to why a defendant should not be allowed to decline probation and why Peterson should be overruled.

The Lenawee County Circuit Court reversed and remanded the case for resentencing, finding the district court erred in preventing the defendant from “waiv[ing] his privileges to probation.”

Peterson Precedent Upheld

On appeal, the prosecution asked the Court of Appeals to reject the rule articulated in Peterson that permits criminal defendants to refuse probation.

The Court of Appeals refused to do so.

In its analysis, the Court of Appeals examined Peterson, noting the majority and dissent in that case disagreed on whether a defendant could waive the constitutional right to be free from unreasonable searches. However, “they agreed that a defendant could decline probation,” the Court said. “[T]he rule that defendants can reject probation has been accepted and relied on in subsequent cases in which a defendant agreed to probation but objected to a particular condition.”

According to the Court of Appeals, similar issues have arisen in other published decisions, including People v Richards, 76 Mich App 695 (1977); People v Hellenthal, 186 Mich App 484 (1990); and People v Oswald, 208 Mich App 444 (1995). In each of these cases, the underlying premise was that a defendant consents to probation and can choose to reject it, the Court explained.

“Unpublished decisions from this Court have also relied on the fact that a defendant agrees to probation in resolving challenges to orders of probation,” the Court of Appeals said. “These decisions are not binding precedent, … but it is clear that the rule that a defendant can elect to reject probation has been used by this Court … to dispose of arguments made by defendants challenging the terms of their probation.”

Therefore, “[u]nder these circumstances, we decline to simply abandon that rule without a compelling reason to do so,” the Court of Appeals observed.

Stare Decisis

The Court of Appeals then looked at the doctrine of stare decisis, which means “to stand by things decided.” Basically, it is the doctrine of precedent.

According to the Court of Appeals, the factors to be considered when deciding whether to overrule a prior decision are: 1) whether the decision defies “practical workability,” 2) whether reliance interests would work an undue hardship and 3) whether changes in the law or facts no longer justify the questioned decision.

In this case, the prosecution did not identify any difficulties that have occurred as a result of defendants being able to refuse probation, the Court of Appeals pointed out. “Indeed, as a practical matter, we think it is safe to say that the overwhelming majority of criminal defendants gladly welcome probation over incarceration and that the issue rarely arises. Further, it is questionable whether a trial court can find that a defendant who does not want to participate in probation ‘is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law….’”

However, the prosecution argued that Peterson was “no longer good law” because the three possible rationales for the decision have been repudiated.

The Court of Appeals disagreed.

“The prosecution first argues that the ‘probation-as-contract theory,’ in which the court and the probationer are thought to have arrived at an arms-length bargain, has been rejected,” the Court of Appeals wrote. “Yet Peterson does not describe probation in contractual terms, and therefore this purported development in the law does not provide a basis to depart from that decision. Second, the prosecution argues that Peterson and its progeny rest on an outdated view of probation as being an ‘act of grace’ and that we should reject that view. However, this argument runs afoul of the plain language of MCL 771.4, which provides that ‘[i]t is the intent of the legislature that the granting of probation is a matter of grace.’ Third, the prosecution argues that probation is no longer considered a rehabilitative alternative to incarceration and is instead considered solely as a criminal punishment with the corresponding goals of retribution and deterrence. We disagree with this premise, but even accepting it as true, we fail to see how this warrants a change in longstanding law. If a defendant declines probation, the goals of the criminal justice system can still be accomplished through incarceration.”

In addition, the prosecution asserted that caselaw from other jurisdictions supported overruling Peterson. “However, our review of that caselaw shows that states take a variety of approaches toward this issue,” the Court of Appeals said. “[W]e do not agree with the prosecution that Peterson has become an outdated nullity. To the contrary, numerous states agree that defendants should have the choice to participate in probation.”

The Court of Appeals also pointed out that MCL 771.1, the statute that permits a trial court to impose probation, has remained “essentially the same” since Peterson was decided. “However, the prosecution contends that there are two probation programs in the Code of Criminal Procedure … MCL 760.1 et seq., that explicitly require a defendant’s permission. From this the prosecution argues that when the Legislature wants to allow a defendant to refuse a sanction, it knows how to explicitly do so. … The prosecution is mistaken. … We do not see a conflict between the general rule that probation may be declined and a rule that even when a defendant ‘accepts’ probation, he may still be granted a right by statute to decline a specific provision of that probation.”

In conclusion, the Court of Appeals said the prosecution’s arguments were not compelling reasons to depart from the long-standing interpretation of MCL 771.1 announced in Peterson.

“We therefore reaffirm the rule that a defendant may decline a sentence of probation and instead seek a sentence of incarceration.”

Dissent: Peterson Should Be Overruled

In his dissenting opinion, Judge Tukel said Peterson was wrongly decided and the “justifications” given by the majority for following it were “inadequate.”

“Is there any circumstance under which a criminal defendant may veto a sentence which the trial judge intends to impose and demand a sentence more to the defendant’s liking?” the judge asked. “Reading the Michigan Constitution and statutes, one would certainly think not. ‘[T]he ultimate authority to provide for penalties for criminal offenses is constitutionally vested in the Legislature.’ … ‘The authority to impose sentences and to administer the sentencing statutes enacted by the Legislature lies with the judiciary.’”

However, the majority “reaffirms the rule first enunciated in People v Peterson, that ‘[p]robation is a matter of grace and rejectable, we think, at the option of the probationer,’” Judge Tukel said.

According to the judge, “it is clear that Peterson should be overruled. For the reasons already stated, the doctrine it enunciated is contrary to the clear statutory directive under which the Legislature has given the authority to the courts to impose a probationary sentence and nowhere has it afforded a defendant the power to refuse such a sentence. Moreover, … there could not have been any reliance interest by defendant in committing his second drunk-driving offense, such that he would have had an expectation that he could reject probation; and even if defendant had had such a reliance interest, it is one which is illegitimate, given his violation of the criminal law, and thus should not be further endorsed by the judiciary.”

As a result, “I would hold that Peterson is incorrect to the extent that its permits a defendant to veto a sentencing court’s decision to impose a term of probation,” Judge Tukel concluded. “I would vacate the decision of the circuit court and remand to the trial court for resentencing.”