Opinion
Case No. CR.S-02-352-GEB.
February 9, 2006
DANIEL J. BRODERICK, Acting Federal Defender, RACHELLE BARBOUR, Assistant Federal Defender, Sacramento, California, Attorneys for Defendant MARION GEORGES.
UNOPPOSED MOTION TO WAIVE DEFENDANT'S APPEARANCE UNDER FRCrimP 43(c)(1)(B); [proposed] ORDER
Pursuant to Rule 43 of the Federal Rules of Criminal Procedure, the defendant, MARION GEORGES, through her counsel, RACHELLE BARBOUR, Assistant Federal Defender, hereby moves voluntarily to waive her appearance at sentencing on February 24, 2006. Ms. Georges is elderly, very ill, and lives in Florida. She is 70 years old and cannot walk more than a few feet. Her vision is severely impaired and she will soon undergo dialysis. She is under the care of Dr. Izu Nwakoby whose letter indicates Ms. George's dire medical status. (Exh. A.)
Federal Rule of Criminal Procedure 43 sets forth the requirements concerning a defendant's presence at various hearings. Rule 43(c)(1) provides for the waiver of continued presence. Specifically, it states, "A defendant . . . who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances: . . . (B) in a noncapital case, when the defendant is voluntarily absent during sentencing." The effect of the waiver is as follows: "If the defendant waives the right to be present, the trial may proceed to completion, including the verdict's return and sentencing, during the defendant's absence."
Defense counsel has spoken with Ms. Georges in depth about the probation report, the recommended and possible sentences, her right to allocute at sentencing, and the effect of the attached waiver. Ms. Georges voluntarily waives her right to be present at sentencing, due to severe physical infirmity which keeps her from traveling cross-country. (Exh. B.) Defense counsel has confirmed that she has had the presentence report read to her by her daughter and understands its contents. Ms. Georges requests that the Court sentence her in absentia and that her attorney appear on her behalf. See United States v. Boykin, 222 F. Supp. 398 (D.Md. 1963) (felony plea and sentence in absentia due to illness of defendant and with written waiver).
Ms. Georges fits within the framework set forth by Rule 43 for the waiver of continued presence. She was initially present in court at her change of plea on June 25, 2004. She has signed a written waiver of appearance at sentencing. She seeks to absent herself voluntarily at the judgment and sentencing hearing on February 24, 2006 because of her ill health and inability to travel from Florida to Sacramento. The case is noncapital.
Because of Ms. Georges's frailty and ill health, the probation officer has recommended a sentence of five years probation and a term of 3 months in home detention. It is expected that the government will support this recommendation. Defense counsel has discussed this matter with the government's attorney, who has authorized counsel to inform the Court that he has no opposition to the request that Ms. Georges be permitted voluntarily to waive her appearance at sentencing.
Ms. Georges respectfully requests that the Court allow her to absent herself voluntarily at sentencing.
ORDER
Defendant Marion Georges may voluntarily absent herself at the judgment and sentencing in her case, presently set for February 24, 2006, pursuant to Federal Rule of Criminal Procedure 43(c)(1)(B).
IT IS SO ORDERED.