Opinion
Docket No. 47083.
Decided November 5, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.
George S. Buth, for defendant on appeal.
Before: R.B. BURNS, P.J., and T.M. BURNS and D.E. HOLBROOK, JR., JJ.
Defendant pled guilty to armed robbery and felony firearm, contrary to MCL 750.529; MSA 28.797 and MCL 750.227b; MSA 28.424(2).
On appeal defendant asks this Court to remand his case back to the circuit court for resentencing because defendant was not present in the judge's chambers at a presentencing conference. People v Briggs, 94 Mich. App. 723; 290 N.W.2d 66 (1980), and People v Worden, 91 Mich. App. 666; 284 N.W.2d 159 (1979), hold contrary to defendant's position.
Affirmed.
I dissent.
The holding of an in-chambers sentencing conference without the presence of defendant effectively nullified his right to allocution at sentencing. GCR 1963, 785.8(2). Without knowing all of the considerations that go into a sentencing judge's determination of a proper sentence, a defendant cannot be expected to adequately exercise his right to allocute. There is nothing in the record of the instant case that would lead me to believe that the substance of the in-chambers conference between the judge and the defense counsel was ever related to defendant. Had it come to light during sentencing, either through statements of counsel or questions of the judge, that defendant was informed of all that was said in the in-chambers discussion, I might be less inclined to reverse. Be that as it may, on the instant record I believe that we must reverse.
I fully recognize that my opinion on this matter appears to be the minority one. See People v Briggs, 94 Mich. App. 723, 727; 290 N.W.2d 66 (1980), People v Worden, 91 Mich. App. 666, 685; 284 N.W.2d 159 (1979). However, in neither of these two cases was this issue examined at great length or analyzed. Rather, the identical claim made by the defendants in those two cases was summarily dismissed with citation to no authority.
Until the Supreme Court holds to the contrary, and this issue has been ordered briefed for argument before that Court, see People v Pulley, 407 Mich. 946 (1979), I cannot hold that a defendant, who might be liable to imprisonment for life or for some other great number of years, should not be entitled to participate in a discussion concerning his fate.
I dissent and would reverse.