Opinion
Docket No. 96436.
Decided October 29, 1987.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Harold F. Close III, Prosecuting Attorney, and Linda S. Kare, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Herb Jordan), for defendant on appeal.
Before: M.J. KELLY, P.J., and CYNAR and DOCTOROFF, JJ.
Defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, following which he was sentenced to a term of from thirty to ninety years imprisonment. He appeals as of right. We affirm defendant's conviction, but remand for resentencing.
Defendant first argues that resentencing is required. We agree. The sentencing court erred by considering defendant's unwillingness to testify against his codefendants. See People v Peques, 104 Mich. App. 45; 304 N.W.2d 482 (1980), aff'd 412 Mich. 851 (1981).
We do not agree, however, that resentencing must be before a different judge. In People v Evans, 156 Mich. App. 68, 72; 401 N.W.2d 312 (1986), this Court articulated a tripartite test to be applied to a determination whether a resentencing should take place before a different judge:
(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.
In this case, the sentencing judge followed federal constitutional law using People v Hooks, 101 Mich. App. 673; 300 N.W.2d 677 (1980), in considering defendant's failure to testify rather than affording defendant the greater protection of Michigan constitutional law pursuant to Peques, supra. The record discloses none of the concerns articulated in Evans, supra.
We disagree with defendant's second contention that resentencing is required on the basis that his attorney's failure to address the court on his behalf prior to sentencing denied him effective assistance of counsel pursuant to People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976). The decision to address the court at sentencing is a tactical one. People v London Williams, 117 Mich. App. 262, 266; 323 N.W.2d 663 (1982).
Remanded for resentencing.