People v. Petit

• Decision Date: 17 July 2002
• Docket Number: Docket No. 119348, Calendar No. 1.
• Citation: 466 Mich. 624,648 N.W.2d 193
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Linda PETIT, Defendant-Appellant.
• Court: Michigan Supreme Court

648 N.W.2d 193

466 Mich. 624

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Linda PETIT, Defendant-Appellant.

Docket No. 119348, Calendar No. 1.

Supreme Court of Michigan.

Argued May 8, 2002.

Decided July 17, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Jon P. Wojtala, Assistant Prosecuting Attorney, Detroit, MI, for the people.

State Appellate Defender (by Chari K. Grove and Anne Yantus), Detroit, MI, for the defendant-appellant.

MARKMAN, J.

We granted leave to appeal in this case to consider whether defendant must be resentenced because the trial court did not specifically ask defendant if she wished to allocute, that is, speak on her own behalf, before she was sentenced pursuant to a sentence agreement. The Court of Appeals denied leave to appeal. We conclude that defendant was given an opportunity to allocute as required by MCR 6.425(D)(2)(c). Accordingly, we affirm defendant's sentence.

I. FACTS AND PROCEDURAL HISTORY

Defendant was charged with first-degree murder and felony-firearm for the shooting death of her sister. Pursuant to a plea agreement, defendant pleaded nolo contendere but mentally ill to second-degree murder and felony-firearm. In return, it was agreed that defendant would be sentenced to 16½ to 40 years for second-degree urder, plus two years for felony-firearm.

At the sentencing hearing, defendant's attorney allocuted on defendant's behalf. The court also heard from the victim's daughter. Although the court asked if there was "anything further" before it imposed sentence pursuant to the agreement, and defense counsel specifically responded, "No, Judge," the court did not specifically ask defendant if she had anything to say on her own behalf before the court sentenced her.

Defendant argues that this failure violated MCR 6.425(D)(2)(c), and thus that she is entitled to be resentenced. The Court of Appeals denied leave to appeal. This Court subsequently granted leave to appeal. 465 Mich. 942 (2002).¹

II. STANDARD OF REVIEW

This case presents an issue involving the interpretation of a court rule, which, like a matter of statutory interpretation, is a question of law that we review de novo. CAM Construction v. Lake Edgewood Condominium Ass'n, 465 Mich. 549, 553, 640 N.W.2d 256 (2002).

III. ANALYSIS

MCR 6.425(D)(2)(c), the court rule that defendant alleges the trial court violated at sentencing, provides in relevant part:

At sentencing the court, complying on the record, must:

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(c) give the defendant, the defendant's lawyer, the prosecutor, and the victim an opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence....

As is apparent, this straightforward rule requires the trial court to provide a defendant an "opportunity" to address the court before the sentence is imposed. At issue here is whether defendant had such an opportunity. We conclude that she did.

It is well established that we interpret the words of a court rule in accordance with their "everyday, plain meaning." CAM Construction, supra at 554, 640 N.W.2d 256, quoting Grievance Administrator v. Underwood, 462 Mich. 188, 194, 612 N.W.2d 116 (2000). "Opportunity" is commonly defined as:

1. an appropriate or favorable time or occasion. 2. a situation or condition favorable for attainment of a goal. 3. a good position, chance, or prospect, as for success. [Random House Webster's College Dictionary (1995).]

Accordingly, this court rule means that the trial court must make it possible for a defendant who wishes to allocute to be able to do so before the sentence is imposed. However, in order to provide the defendant an opportunity to allocute, the trial court need not "specifically" ask the defendant if he has anything to say on his own behalf before sentencing. The defendant must merely be given an opportunity to address the court if he chooses.

In this case, although the court did not specifically ask defendant if she wished to allocute, it did ask if there was "anything further?" and defense counsel said, "No, Judge." While it is unclear to whom this question was addressed, it is clear that defendant's counsel responded to the court's inquiry by indicating that there was, in fact, nothing further to say.² At this juncture, defendant had the option, that is, the opportunity, of addressing the court, and she was not precluded or prevented from doing so.

In our judgment, the trial court's failure to specifically ask defendant if she had anything to say did not violate MCR 6.425(D)(2)(c) because this rule simply does not require such a personal and direct inquiry. It is noteworthy that some of our court rules do require the court to personally address the defendant, see, e.g., MCR 5.941(C) (requiring the court to "personally address the juvenile"); MCR 6.302(B) (requiring the court to "speak[ ] directly to the defendant"); MCR 6.402 and MCR 6.410 (requiring the court to "address[] the defendant personally"). To give meaning to those instances where our court rules require the court to directly address the defendant and to those rules, like that at issue here, where they do not, we conclude that MCR 6.425(D)(2)(c) only requires that the opportunity to allocute be given. Accordingly, in our judgment, the trial court here complied with the rule by generally asking if there was "anything further."³

We are reinforced in our conclusion that we have given the proper reading to MCR 6.425(D)(2)(c) by reference to the United State Supreme Court's handling of a similar matter in Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). Green arose out of a dispute concerning an analogous federal rule covering sentencing in the federal courts.⁴ In Green, the trial court asked, "Did you want to say something?" Id. at 302, 81 S.Ct. 653. As in our case, it is unclear to whom this question was directed. However, also as in our case, it is clear that it was the defendant's counsel who responded to the court's inquiry.

Faced with the claim that these trial court proceedings were not in compliance with Fed. R. Crim. P. 32(a), the United States Supreme Court first noted that "[i]f Rule 32(a) constitutes an inflexible requirement that the trial judge specifically address the defendant, e.g., `Do you, the defendant, Theodore Green, have anything to say before I pass sentence?' then what transpired in the present case falls short of the requirement." Id. at 303, 81 S.Ct. 653. However, the Court ultimately concluded that such a personal and direct inquiry is not necessary to provide the defendant with an opportunity to allocute. Accordingly, the Court provided, "we do not read the record before us to have denied the defendant the opportunity to which Rule 32(a) entitled him. The single pertinent sentence — the trial judge's question `Did you want to say something? — may have been directed to the defendant and not to his counsel.'"⁵ Id. at 304, 81 S.Ct. 653 (emphasis added). On these facts, the Court concluded that the judge's question afforded the defendant a sufficient opportunity to allocute, and thus the court rule was not violated.⁶

We are aware that our construction in People v. Berry, 409 Mich. 774, 298 N.W.2d 434 (1980), of the former version of this court rule, GCR 1963, 785.8, is inconsistent with our interpretation of the current version, MCR 6.425(D)(2)(c). GCR 1963, 785.8 provided in relevant part:

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. [Emphasis added.]

In Berry, this Court concluded that GCR 1963, 785.8

requires strict compliance and should be understood in all cases to require the trial court to inquire specifically of the defendant separately whether he or she wishes to address the court before the sentence is imposed.⁷ [Id. at 781, 298 N.W.2d 434.]

Additionally, we provided that, under this rule, a defendant must be given a reasonable opportunity to allocute, even where the court sentences the defendant pursuant to a sentence agreement. Id. at 780-781, 298 N.W.2d 434.

The principal difference between the former and the present court rule is that the latter no longer provides that "failure to comply shall require resentencing."⁸

The provision ... declaring that a failure to comply with the provisions of that subrule "shall require resentencing" was deleted from this subrule [in 1989]. Whether failure to comply with a provision in this subrule will entitle a defendant to resentencing [now] depends on the nature of the noncompliance and must be determined by reference to past case law or on an individual case basis. [MCR 6.425, 1989 Staff Comment.]⁹

Further, while the former rule required the court to provide a defendant with a "reasonable opportunity" to allocute, the current rule requires the court to provide a defendant with an "opportunity" to allocute.¹⁰

As noted above, in our interpretation of the former rule, we required that the trial court "specifically" ask the defendant if "he or she wishes to address the court before the sentence is imposed."¹¹ Berry, supra at 781, 298 N.W.2d 434. However, we no longer believe that such a specific inquiry is required because the straightforward language of the court rule simply requires a trial court to provide a defendant with an opportunity to allocute. Such language cannot be read to require the court to "specifically" ask the defendant if he has anything to say before being sentenced. It merely requires that the defendant be presented with an opportunity to allocute. Accordingly, we overrule Berry to the extent that its construction of former rule GCR 1963,...