People v. Baines , 83 Mich. App. 570 ( 1978 )

Per Curiam.

Defendant appeals from his plea-based conviction for armed robbery. MCL 750.529; MSA 28.797. His arguments on appeal focus on the timing of the plea hearing in this case and probation revocation proceedings in another case.

Defendant was already on probation for a previous conviction when he was charged with the instant armed robbery. That probation was revoked as a result of this charge. The revocation hearing was held and a sentence was imposed in the other case before defendant pled guilty on this armed robbery charge. A part of the bargain offered to the defendant in return for his plea of guilty was a promise that his sentence in this case would not exceed the sentence imposed following the probation revocation and that both sentences would run concurrently. That bargain was kept by the prosecution and the trial judge.

On appeal, defendant argues that where a defendant allegedly violates his probation contract by engaging in criminal activity, a revocation hearing may not be held until after the defendant is tried on the new criminal charges. While that may be the sequence of events in most cases, we reject any suggestion that the revocation hearing may not be held first. The defendant’s probation might have been revoked even if he had been acquitted of the present armed robbery charge if the prosecution failed to establish guilt beyond a reasonable doubt but did show guilt by a preponderance of the evidence. People v Billy Williams, 66 Mich App 67; 238 NW2d 407 (1975). See also People v White, 98 Ill App 2d 1; 239 NE2d 854 (1968).

Defendant states that holding the revocation hearing first "creates 'unjustifiable tension’ between the defendant’s rights to due process and the right to be free from duress when he enters a plea”. He assumes that a person who has already been sentenced following a revocation of probation is more likely to accept a favorable plea bargain which does not impose additional punishment. We agree with that assumption, but it does not follow that this conviction must be reversed for that reason. All plea bargains involve some consideration passing from the prosecution to the defendant in order to induce the defendant to waive a full trial. Almost all defendants who enter guilty pleas do so because they expect to be treated more leniently if they plead guilty. If they had nothing to gain by pleading guilty and nothing to lose by going to trial, most of those defendants would choose the trial in the hope that they might somehow be acquitted. The fact that they would not plead guilty were it not for a promise or expectation of leniency does not render their pleas involuntary. People v Kindell, 17 Mich App 22; 168 NW2d 909 (1969), People v Guest, 47 Mich App 500; 209 NW2d 601 (1973). Defendant has raised a slightly different variation of the contention made by the defendants in the two cited cases and many others. It has always been rejected because acceptance would make plea bargaining impossible. The form of the argument is different here, but it still has no merit.

We also note that if the order of the proceedings had been reversed, the defendant might very well appeal the probation revocation, arguing that his will to resist the revocation had been overcome by the effects of his conviction and sentence on the substantive charge. One or the other must come first and we see no error in the decision to start with the probation revocation hearing.

Affirmed.