People v. Palmerton, Docket No. 140714

• Decision Date: 22 June 1993
• Docket Number: Docket No. 140714
• Citation: 200 Mich.App. 302,503 N.W.2d 663
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy Carl PALMERTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 663

503 N.W.2d 663

200 Mich.App. 302

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy Carl PALMERTON, Defendant-Appellant.

Docket No. 140714.

Court of Appeals of Michigan.

Submitted May 18, 1993, at Detroit.

Decided June 22, 1993, at 9:15 a.m.

Released for Publication Aug. 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., James R. Reed, Pros. Atty., and Patricia J. Miller, Asst. Atty. Gen., for the People.

Jeanice Dagher-Margosian, Ann Arbor, for defendant-appellant.

Before MURPHY, P.J., and McDONALD and BEASLEY, ^* JJ.

PER CURIAM.

Defendant was convicted after a jury trial of operating a vehicle while under the influence of intoxicating liquor, third offense, M.C.L. § 257.625; M.S.A. § 9.2325, and transporting an opened container of intoxicants in an automobile, M.C.L. § 436.34a; M.S.A. § 18.1005(1). ¹ Defendant was released on bond and failed to appear for sentencing. The court sentenced defendant in absentia to three to five years in prison for the OUIL offense. When defendant was later brought before the court for sentencing on a probation violation for an unrelated offense, the court, in lieu of resentencing defendant on the earlier charges, stated that the sentence previously imposed in absentia would stand. Defendant appeals, contending that the court improperly sentenced him while absent.

A defendant has a right to be present during the imposition of sentence, and at any stage of trial where substantial rights of the defendant might be adversely affected. People v. Mallory, 421 Mich. 229, 247, 365 N.W.2d 673 (1984). We are unaware of any decisions in this state resolving whether a defendant's failure to appear at sentencing constitutes a valid waiver of that right. This Court has held, however, that a defendant may waive his right to be present during trial by failing to appear. People v. Williams, 196 Mich.App. 404, 407, 493 N.W.2d 277 (1992); People v. Woods, 172 Mich.App. 476, 479, 432 N.W.2d 736 (1988). A valid waiver arises when the defendant specifically knows of the right to be present and intentionally abandons the protection of that right. Williams, supra; Woods, supra. A valid waiver cannot be established from a silent record. Williams, supra; Woods, supra. Where there is nothing on the record explaining the defendant's failure to appear, a valid waiver cannot be established. Williams, supra.

Because a defendant has the same right to be present at sentencing as at trial, reasoning by analogy, the same criteria is necessary to establish a valid waiver of the right to be present for sentencing. In this case, there was no explanation on the record at the time of the original sentence with regard to whether defendant knew of the sentencing date and intentionally failed to appear for sentencing. The sentencing court therefore did not have...