Sentencing; Use of interactive video technology; MCR 6.006(A); People v Heller; Felony sentencing; Waiver; People v Palmerton

Holding that the trial court violated MCR 6.006(A) in sentencing defendant for a felony via videoconference, and there was no evidence he or defense counsel waived the right to be present, the court affirmed his convictions but reversed his sentences and remanded for resentencing. It retained jurisdiction and issued an order as to the proceedings on remand. Defendant pled guilty to breaking and entering a motor vehicle to steal property worth $1,000 or more but less than $20,000 and stealing another’s financial transaction device. He was sentenced as a fourth-offense habitual offender to 5 to 30 years for the former and 5 to 15 years for the latter. “MCR 6.006(A) identifies the criminal proceedings in which two-way interactive video technology may be used without first obtaining a waiver of a defendant’s physical presence at the proceeding. Because felony sentencing is not” on this list, conducting “felony sentencing by video conference without a waiver of a defendant’s physical presence at the proceeding plainly contravenes MCR 6.006(A).” In this case, there was “no indication on the record by defendant, defense counsel, or the trial court that defendant specifically knew of his right to be physically present during the sentencing hearing and expressly waived” it. The fact he appeared at sentencing via videoconference was “never addressed. Considering that a valid waiver cannot be established from a silent record, no waiver occurred.” The court noted that no affidavit by “defendant or argument by counsel would have been able to ascertain the difference between an allocution on a small screen and an in person articulation to the judicial officer. Allocution is the only opportunity a defendant has to directly address the court. The right to allocute in person is a substantial right, and failure to honor that right is not susceptible to objective measurement. Failure to afford the defendant this right impacts the actual integrity of the judicial system’s obligation to protect the rights of the accused.”