People v. Berry

• Decision Date: 24 November 1980
• Docket Number: 63090,Nos. 62979,62980,63091 and 63164,s. 62979
• Citation: 298 N.W.2d 434,409 Mich. 774
• Parties: PEOPLE of The State of Michigan, Plaintiff-Appellant, v. Joyce BERRY, a/k/a Annette Williams, Defendant-Appellee. PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Joyce BERRY, a/k/a Annette Williams, Defendant-Appellant. PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Edward LONG, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 434

298 N.W.2d 434

409 Mich. 774

PEOPLE of The State of Michigan, Plaintiff-Appellant, v. Joyce BERRY, a/k/a Annette Williams, Defendant-Appellee.

PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Joyce BERRY, a/k/a Annette Williams, Defendant-Appellant.

PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Edward LONG, Defendant-Appellant.

Nos. 62979, 62980, 63090, 63091 and 63164.

Supreme Court of Michigan.

Nov. 24, 1980.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, for plaintiff in both cases.

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Timothy C. Scallen, Asst. Pros. Atty., Lansing, for plaintiff in Berry.

James J. Gregart, Pros. Atty., and Judy A. Hughes, Appellate Asst. Pros. Atty., Lansing, for plaintiff in Long.

Joyce A. Berry, in pro. per.

Robert E. Slameka, Detroit, for defendant Berry.

John A. Lydick, Asst. State Appellate Defender, Detroit, for defendant Long.

PER CURIAM.

These cases have been consolidated for the purpose of making clear the nature of a criminal defendant's right of allocution before sentencing. The claim of each defendant arises from distinct trial court proceedings briefly set out below.

Defendant Berry

The defendant pleaded guilty on October 11, 1977 to separate charges of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797; assault with intent to rob while armed, M.C.L § 750.89; M.S.A. § 28.284; and two counts of possession of a firearm during commission of a felony, M.C.L § 750.227b; M.S.A. § 28.424(2). Pursuant to a plea bargain with the prosecuting attorney and a sentence bargain with the trial court, the defendant was sentenced to a total of not less than 7 nor more than 15 years in prison.

At sentencing, after stating that the sentence bargain called for imprisonment of 7 to 15 years, the Court said:

"THE COURT: All right. Is there anything you want to say before I impose sentence?

"MR. WOLNEY: Richard T. Wolney, appearing on behalf of the defendant in 77-06332. I have had an opportunity to read the Presentence Report and I believe that it's accurate factually in its basis.

"THE COURT: Is there anything you want to say?

"MS. GASKIN: ¹ Deborah Gaskin appearing for the defendant. I also had an opportunity to review the report. I would only request that you follow the previously mentioned agreement."

The court then recited at some length the defendant's history of previous convictions, sentences, and prison escapes, commented about her use of heroin, described her sociopathic personality, observed that she apparently lacked remorse for the crimes committed, and imposed the sentence agreed upon.

Defendant Long

The defendant was convicted by a jury of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, on December 1, 1976. After preparation of a presentence investigative report, a presentence conference occurred in the court's chambers involving the trial judge, counsel for the defendant, and an assistant prosecuting attorney.

No record was made of the conference in chambers. On December 27, 1976, the defendant was brought before the court and sentenced to confinement for a term of not less than 8 nor more than 20 years. The defendant complains that at sentencing he was denied his right of allocution and is entitled to be resentenced.

At the time of sentencing, the following occurred:

"THE COURT: Is your name Edward Long?

"THE DEFENDANT: Yes, sir.

"THE COURT: Mr. Hills is your attorney; is that correct?

"THE DEFENDANT: Yes, sir.

"THE COURT: Mr. Long, is there any reason why you should not be sentenced today for armed robbery?

"THE DEFENDANT: Not that I know of.

"THE COURT: Mr. Hills, you have discussed this case with me in chambers. Do you wish to add anything further?

"MR. HILLS: There is nothing further. I have discussed it in chambers with yourself and Mr. Mabbitt and the probation agent.

"The only thing that I objected to in chambers was the presentence report of his wife being included in his, because I do not think it adds anything. I would have no chance to rebut that.

"Other than that, I would have no objection, your Honor.

"THE COURT: Mr. Long, you are not a youngster anymore. You are thirty-four years old, according to a report; is that right?

"THE DEFENDANT: Yes, sir.

"THE COURT: You have not been able to hold a job for very long.

"THE DEFENDANT: No.

"THE COURT: When was the last job you had?

"THE DEFENDANT: I was self-employed for a long time.

"THE COURT: But you were drawing ADC and so forth, with your wife, were you not?

"THE DEFENDANT: No.

"THE COURT: You never have gotten ADC?

"THE DEFENDANT: She might have drawed ADC, but I didn't draw on ADC.

"THE COURT: Your defense in this case was that you were under the influence of drugs, and that you did not recall what happened?

"THE DEFENDANT: Yes, sir.

"THE COURT: The jury did not feel that this was established sufficiently to acquit you on the charge. Even if this was the case, you are still a dangerous person if you are under the influence of drugs, and if you are carrying a weapon.

"The Court feels that you are a problem, and a danger to society. You have been found guilty and sentenced for armed robbery once before in Calhoun County, have you not?

"THE DEFENDANT: Yes, sir.

"THE COURT: It just seems to me that you have not learned your lesson, and you have to be put out of society for awhile.

"THE DEFENDANT: Well, you Honor, I ain't been back in society since they found me guilty.

"THE COURT: Well, Mr. Mabbitt, do you have anything to say in this matter?

"MR. MABBITT: Nothing that I have not already said in chambers, your Honor.

"THE COURT: Well, it is the sentence of this court that you, Edward Long, shall be forthwith committed to the state prison of Southern Michigan in Jackson County for the purpose of classification, and shall be confined in such state institution as shall be duly designated for a term not to exceed twenty years, and not less than eight years, from and after this date.

"I will recommend that you receive psychiatric treatment, if it is available.

"THE DEFENDANT: I would rather not have that recommended.

"THE COURT: Well, you do not have anything to say about it. I am making that recommendation."

I

Both defendants complain that they were denied the right of allocution to which they are entitled under the provisions of GCR 785.8(2) and 785.9.

In relevant part, the court rule provides:

".8 Sentencing. Before sentence is imposed the court shall:

"(2) Give defendant and his lawyer a reasonable opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence;

"Provisions of subrule 785.8 are mandatory and failure to comply shall require resentencing.

".9 Conformity with the practice provided under 785.3 through 785.8 shall affirmatively appear on the record."

We find that in the cases of both defendant Long and defendant Berry the court did not comply with the requirements of GCR 785.8(2) and 785.9.

The rule requires that the record reflect that both the defendant and his counsel were given the opportunity to address the court before sentencing.

In defendant Long's case, the record at sentencing clearly discloses that the defendant was denied his right of allocution. The court's opening inquiry whether the defendant knew of any reason why "you should not be sentenced today" addressed the matter about which the court was concerned, but did not extend to the defendant an opportunity to address the court with respect to matters of concern to the defendant. Indeed, later in the colloquy, when the defendant spoke up on his own initiative to state that he preferred that no recommendation be made for psychiatric treatment, he was abruptly cut off by the trial court with the statement: "Well, you do not have anything to say about it. I am making that recommendation." ²

Nor should the nature of the right of allocution be viewed any differently in cases like defendant Berry's where a sentence bargain has been struck. Sentence bargain or no sentence bargain, the defendant must be given the opportunity to make a statement to the sentencing court in...