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Docket Number
Attorney(S)
  • Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people. Carl Ziemba, for defendant on appeal.
Judges
  • M.R. KNOBLOCK, J.
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Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people. Carl Ziemba, for defendant on appeal.
Judges
  • M.R. KNOBLOCK, J.
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Smart Summary

Summary of Opinion: People v. Evans, Michigan Ct. App., Docket No. 83792 (Nov. 4, 1986)

Factual and Procedural Background

After a bench trial the defendant was convicted of criminal sexual conduct in the third degree and sentenced to a prison term of seven to fifteen years. At the sentencing hearing defendant's court-appointed trial counsel failed to appear. The judge made an unanswered telephone call to trial counsel's office but did not develop any further explanation for the absence. The sentencing judge appointed substitute counsel to "stand in" for the absent trial counsel moments before the hearing and was advised by substitute counsel that he had read the presentence report and psychiatric report and had discussed them with the defendant. The defendant objected and stated he did not wish to proceed without his trial counsel. The trial judge stated on the record that the sentence would be the same regardless of whether trial counsel was present and proceeded to impose sentence. On appeal defendant argued he should be resentenced because his trial counsel was absent at sentencing and because resentencing should be before a different judge.

Legal Issues Presented

  1. Whether proceeding to sentencing with substitute counsel — when the defendant's trial counsel failed to appear and no showing of unavailability was made — constituted reversible error requiring resentencing.
  2. Whether, if resentencing is required, resentencing should be conducted before a different judge.

Arguments of the Parties

Defendant's Arguments

  • Defendant asserted he should be resentenced because his court-appointed trial counsel was absent at sentencing and substitute counsel was appointed moments before the hearing.
  • Defendant further asserted that resentencing should be conducted before a different judge.

The opinion does not contain a detailed account of any opposing (prosecution) briefing or argument beyond the trial judge's on-the-record statements that the sentence would have been the same irrespective of trial counsel's presence and the fact that substitute counsel had read the presentence and psychiatric reports.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v. Dye, 6 Mich. App. 217, 148 N.W.2d 501 (1967) That sentencing is a critical stage of a criminal proceeding and counsel's presence is required. The court cited Dye to support the proposition that counsel must be present at sentencing absent a waiver.
People v. Foy, 124 Mich. App. 107, 333 N.W.2d 596 (1983) Referenced similarly to Dye as supporting authority that counsel's presence at sentencing is required. Used as additional state appellate authority reinforcing the necessity of counsel's presence at sentencing.
MCR 6.101(G) (formerly GCR 1963, 785.8) Rule requiring the presence of the defendant's attorney before sentence is imposed unless the presence is affirmatively waived by the defendant. The court quoted the rule and construed it to require the presence of the attorney who has been representing the defendant in the case, not merely any lawyer; it then explained that substitute counsel may be appointed only upon a showing that trial counsel is no longer available.
People v. Coles, 417 Mich. 523, 339 N.W.2d 440 (1983) Supreme Court statement that sentencing before a different judge may be appropriate if "warranted by the circumstances." The court cited Coles to acknowledge the Supreme Court's recognition that reassignment for resentencing can be appropriate, but noted no standard had been articulated in Coles for when to order reassignment.
People v. Hicks, 149 Mich. App. 737, 386 N.W.2d 657 (1986) Cited as one example where panels of this Court have ordered resentencing before a different judge. Listed among earlier Michigan Court of Appeals decisions where resentencing before a different judge was ordered; used to show prior practice without specifying reasons.
People v. Rivers, 147 Mich. App. 56, 382 N.W.2d 731 (1985) Listed as a prior panel decision ordering resentencing before a different judge. Noted by the court as part of a line of cases where resentencing before a different judge was ordered by panels of this Court.
People v. Crook, 123 Mich. App. 500, 333 N.W.2d 317 (1983) Listed among cases where resentencing before a different judge was ordered. Referenced to demonstrate the Court of Appeals' prior practice.
People v. Casanas, 120 Mich. App. 614, 327 N.W.2d 534 (1982) Listed among cases where resentencing before a different judge was ordered. Referenced as part of the cited Michigan appellate decisions ordering reassignment for resentencing.
People v. Randle, 104 Mich. App. 1, 304 N.W.2d 9 (1981) Listed among cases ordering resentencing before a different judge. Included in the list of prior appellate decisions where panels ordered resentencing before a different judge.
People v. Peques, 104 Mich. App. 45, 304 N.W.2d 482 (1980) Listed among cases ordering resentencing before a different judge. Used to show prior Court of Appeals practice on reassignment for resentencing.
People v. Perez, 94 Mich. App. 759, 289 N.W.2d 857 (1980) Listed as prior Court of Appeals authority ordering resentencing before a different judge. Cited among earlier panels ordering resentencing before a different judge.
People v. Powell, 87 Mich. App. 192, 274 N.W.2d 16 (1978) Listed among cases ordering resentencing before a different judge. Included as part of the Court of Appeals' historical practice in reassignment decisions.
People v. Westerfield, 71 Mich. App. 618, 248 N.W.2d 641 (1976) Listed among cases ordering resentencing before a different judge. Referenced to show past instances where panels directed resentencing before a different judge.
United States v. Robin, 553 F.2d 8 (2d Cir. 1977) One of federal circuit decisions that have utilized a three-part test for deciding whether to reassign a case for resentencing. Included as part of the group of federal authorities from which the three-part test was drawn and considered by the court in evaluating reassignment.
United States v. Ferguson, 624 F.2d 81 (9th Cir. 1980) Federal authority applying a three-part test for reassignment on remand. Listed among the federal cases whose approach the court adopted for framing the reassignment inquiry.
Bercheny v. Johnson, 633 F.2d 473 (6th Cir. 1980) Federal authority applying a three-part reassignment test. Cited as part of the circuit authority adopting the three-factor framework the court used to analyze reassignment.
United States v. Larios, 640 F.2d 938 (9th Cir. 1981) Another federal case employing the three-part reassignment test. Included among the federal authorities used to articulate the three reassignment considerations adopted by the court.
United States v. Sears, Roebuck Company, Inc., 785 F.2d 777 (9th Cir. 1986) Federal case cited for the three-part test (the court quotes language from this source). The three considerations were quoted (with reference to page 780) and the court used that three-part framework when concluding that reassignment for resentencing was appropriate in this case.

Court's Reasoning and Analysis

The court's analysis proceeded in two parts: first addressing counsel's presence at sentencing and second addressing whether resentencing should be assigned to a different judge.

On counsel's presence at sentencing, the court began with the premise — supported by prior Michigan decisions (People v. Dye; People v. Foy) and MCR 6.101(G) — that sentencing is a critical stage of a criminal proceeding and, absent a waiver, the defendant's attorney must be present. The court quoted MCR 6.101(G), which mandates that the defendant's attorney be present before a sentence is imposed unless the defendant affirmatively waives that presence.

The court construed the rule to require the presence of "the attorney who has been and is representing the defendant in the case" rather than merely any attorney. The court explicitly declined to hold that the defendant has an absolute right to be represented at sentencing by the same lawyer who represented him at trial; the court recognized that substitute counsel may be appointed when trial counsel is no longer available.

Applying those principles to the record, the court noted the trial judge made only a single telephone call to trial counsel's office and did not develop a record explanation showing trial counsel was unavailable. The sentencing judge nevertheless appointed substitute counsel to stand in and proceeded to sentence after substitute counsel stated he had read the presentence and psychiatric reports and had discussed them with the defendant. The defendant objected to proceeding without his trial counsel. Because the record contained no explanation for trial counsel's absence or a showing that counsel was unavailable, the appellate court concluded it was error to proceed to sentencing with substitute counsel.

On the question of whether resentencing should be before a different judge, the court observed that panels of the Michigan Court of Appeals have frequently ordered resentencing before a different judge, though prior panels sometimes did not specify reasons. The court cited People v. Coles for the Supreme Court's statement that reassignment may be appropriate when warranted by the circumstances but noted that Coles articulated no specific standard.

The court therefore turned to a multi-factor framework developed in several federal circuit decisions. It adopted and set out the three considerations derived from those federal decisions:

(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

Applying that three-part test to the circumstances of this case, the court concluded that reassignment was appropriate. The court stated it would be unreasonable to expect the original sentencing judge to put previously-expressed views and findings out of his mind without substantial difficulty. The court further found that preserving the appearance of justice and fairness in this case outweighed the considerations of waste and duplication, and therefore reassignment for resentencing was warranted.

Holding and Implications

HOLDING: The court held that it was error to proceed to sentencing with substitute counsel when the defendant's trial counsel failed to appear and the record contained no showing that trial counsel was unavailable. The court remanded the case for resentencing and ordered that resentencing be conducted before a different judge.

Implications:

  • The direct effect of the decision is that defendant's sentence must be vacated and the case remanded for resentencing before a different judge.
  • The court clarified its construction of MCR 6.101(G) in context: the rule requires the presence of the attorney who has represented the defendant unless the defendant affirmatively waives that presence; substitute counsel may be appointed only upon a showing that trial counsel is unavailable.
  • The opinion applied a three-part reassignment test (derived from federal circuit authority) to conclude reassignment for resentencing was appropriate in these circumstances. The court did not purport to announce a new, universal standard beyond applying that multi-factor approach to the facts at hand.

Direct consequence: Remanded for resentencing before a different judge.

Show full summary ...

PEOPLE v. EVANS

M.R. KNOBLOCK, J.

After a bench trial, defendant was convicted of the offense of criminal sexual conduct in the third degree, MCL 750.520d; MSA 28.788(4), and was sentenced to a prison term of from seven to fifteen years. On appeal, defendant asserts he should be resentenced because his court-appointed trial counsel was absent at sentencing and he was forced to proceed to sentencing with substitute counsel. Substitute counsel was appointed for defendant moments before the sentencing hearing.

It appears from the record that, when trial counsel failed to appear at sentencing, no inquiry was made as to the reason for his nonappearance other than an unanswered telephone call to his office. The sentencing judge then appointed another attorney to "stand in" for defendant's trial counsel. There is nothing in the record to suggest that defendant procured, or was in any way responsible for, the failure of his trial counsel to appear at sentencing.

Sentencing is a critical stage of a criminal proceeding and, absent a waiver, counsel's presence is required. People v. Dye, 6 Mich. App. 217; 148 N.W.2d 501 (1967). See also, People v. Foy, 124 Mich. App. 107; 333 N.W.2d 596 (1983). MCR 6.101(G), formerly GCR 1963, 785.8, provides in part:

Before a sentence is imposed, the court shall:

(1) require the presence of the defendant's attorney, unless the attorney's presence is affirmatively waived by the defendant.

The rule does not merely require that an attorney be present, but that defendant's attorney be present. We construe this rule to require the presence of the attorney who has been and is representing the defendant in the case and not merely any lawyer. We, however, decline to hold, as defendant urges, that a criminal defendant has an absolute right to be represented at sentencing by the lawyer who represented him at trial. Although trial counsel will typically continue representing a defendant through sentencing, upon a showing that trial counsel is no longer available to represent the defendant, substitute counsel may be appointed.

In the present case, the trial court appointed substitute counsel after noting that defendant's attorney had failed to appear and that the complainant had been waiting in the courtroom throughout the morning. The trial judge stated on the record that the sentence would be the same irrespective of whether defendant's trial counsel was present and, after being advised by substitute counsel that he had read the presentence report and psychiatric report and had discussed them with the defendant, proceeded with the sentencing hearing over defendant's objection that he did not wish to proceed without his trial counsel present. Since no explanation for trial counsel's failure to appear or a showing that he was unavailable to represent the defendant appears on the record, we conclude it was error to proceed to sentencing with substitute counsel.

Defendant also claims that resentencing should be before a different judge. Panels of this Court have on numerous occasions ordered that resentencing be before a different judge, without specifying the reasons for so holding. People v. Hicks, 149 Mich. App. 737; 386 N.W.2d 657 (1986); People v. Rivers, 147 Mich. App. 56; 382 N.W.2d 731 (1985); People v. Crook, 123 Mich. App. 500; 333 N.W.2d 317 (1983); People v. Casanas, 120 Mich. App. 614; 327 N.W.2d 534 (1982); People v. Randle, 104 Mich. App. 1; 304 N.W.2d 9 (1981); People v. Peques, 104 Mich. App. 45; 304 N.W.2d 482 (1980); People v. Perez, 94 Mich. App. 759; 289 N.W.2d 857 (1980); People v. Powell, 87 Mich. App. 192; 274 N.W.2d 16 (1978); People v. Westerfield, 71 Mich. App. 618; 248 N.W.2d 641 (1976). Although the Supreme Court has stated that sentencing before a different judge may be appropriate if "warranted by the circumstances," People v. Coles, 417 Mich. 523, 536; 339 N.W.2d 440 (1983), no standard has been articulated which may be referred to in passing upon the propriety of ordering resentencing before a different judge in a particular case.

Several circuits of the federal Court of Appeals have utilized a three-part test in passing on this question. United States v. Robin, 553 F.2d 8 (CA 2, 1977); United States v. Ferguson, 624 F.2d 81 (CA 9, 1980); Bercheny v. Johnson, 633 F.2d 473 (CA 6, 1980); United States v. Larios, 640 F.2d 938 (CA 9, 1981); United States v. Sears, Roebuck Company, Inc, 785 F.2d 777 (CA 9, 1986). The three considerations may be stated as follows:

(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. [ Id., p 780.]

Viewing the present case in light of these considerations, we are of the opinion that resentencing should be before a different judge. This ruling should not be viewed as any personal criticism of the trial judge, however, in our view it would be unreasonable to expect him to be able to put out of his mind previously expressed views and findings without substantial difficulty. Additionally, the advancement of the interests of preserving the appearance of justice and fairness outweigh considerations of waste and duplication, neither of which will result from our holding. For these reasons, the matter is remanded for resentencing before a different judge.

Remanded for resentencing.

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Comments

PEOPLE v. EVANS
(Nov 4, 1986)