PEOPLE v. ROCHA (AFTER REMAND), 99 Mich. App. 654

After Remand Bashara, P.J. In 1976, defendant pled guilty and was convicted of possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). He was placed on probation. Four months later, his probation was revoked at a probation violation hearing. This Court reversed and remanded because the revocation hearing took place before the trial on the charge leading to the probation revocation. People v Rocha, 86 Mich App 497; 272 NW2d 699 (1978). Subsequent hearings were held in the trial court, resulting in a finding of defendant’s guilt on the probation violation charge.

On appeal, defendant first contends that the trial judge erroneously interrogated the witnesses at the revocation hearings. Probation revocation hearings are not a stage in the proceedings of a criminal prosecution. Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973). In Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), minimum due process requirements for parole violation hearings were set forth. Gagnon, supra, indicated that the same standards apply to both parole and probation violation hearings. All of those criteria have been met in the instant case.

Nowhere is there a requirement that a prosecutor must be present at every probation violation hearing. The only possible question is whether the proceeding was held before a "neutral and detached hearing body”. Our review of the record reveals that the defendant suffered no prejudice as a result of the court’s interrogation of the witnesses. The trial judge merely asked police witnesses what had transpired, and they narrated the events precipitating the defendant’s arrest. There was no evidence of partiality toward the prosecution.

So long as there is no evidence of partiality or prejudice, it is not improper for the court to conduct a probation revocation proceeding. However, we must observe that where probation proceedings are contested, it is preferable that the interrogation of the defendant be conducted by the prosecutor, so as to avoid the potential or the appearance of bias. Defendant also claims that the charge of probation violation was not proven by a preponderance of the evidence. Again, our review of the record shows the claim to be devoid of merit.

A trial judge’s finding that a probation order has been violated will not be overturned where it is based on verified facts and where the trial judge’s exercise of discretion was based on accurate knowledge of the probationer’s behavior. People v Billy Williams, 66 Mich App 67; 238 NW2d 407 (1975). Finally, defendant argues that he was denied effective assistance of counsel where his attorney refused to participate in the hearings. Counsel apparently chose this "strategy” because the other cases involving the defendant were on appeal.

It was his position that to conduct a revocation hearing while cases involving the defendant were on appeal rendered the instant hearing a nullity. To say that counsel was under a serious misapprehension of the law would be an understatement. However, under the test of People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), a determination must be made that but for this mistake there is a great likelihood that defendant would not have been convicted. The evidence in this case is so clear and convincing that there is no likelihood of defendant escaping conviction, with or without the "strategy” of defense counsel.

Affirmed.