Opinion
SC: 165674 COA: 360218
01-12-2024
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Fontane PARKER, Defendant-Appellant.
Kalamazoo CC: 2021-000324-FH
Order
On order of the Court, the application for leave to appeal the March 23, 2023 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE Part III of the judgment of the Court of Appeals and REMAND this case to the Kalamazoo Circuit Court for a resentencing where the defendant shall be offered the opportunity to allocute prior to the imposition of sentence. See People ? Petty, 469 Mich. 108, 121, 665 N.W.2d 443 (2003); MCR 6.425(D)(1)(c). The Court of Appeals erred in concluding that the defendant’s right to allocution was not violated at sentencing because, even though a court need not specifically ask the defendant if he has anything to say at sentencing as recognized in People ? Petit, 466 Mich. 624, 628, 648 N.W.2d 193 (2002), exclusively addressing defense counsel was not sufficient to afford the defendant his right to personal allocution. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.
We do not retain jurisdiction. Clement, C.J. (concurring).
I agree in full with this Court’s resentencing order. I write separately to emphasize this Court’s reliance on People ? Petit, 466 Mich. 624, 628, 648 N.W.2d 193 (2002). Long before Petit, this Court held that resentencing is required where a defendant is denied allocution. People ? Berry, 409 Mich. 774, 779-781, 298 N.W.2d 434 (1980), overruled in part by Petit, 466 Mich. at 633, 648 N.W.2d 193. But this Court’s opinion in Berry concerned the former court rules regarding allocution, GCR 785.8(2) and GCR 785.9, and relied on the rules’ specific provision that the opportunity for allocution was "mandatory" and that "failure to comply shall require resentencing." As this Court recognized in Petit, that language is no longer present in the current court rule regarding allocution, MCR 6.425(D)(1)(c). Accordingly, Berry's holding is not applicable to modern-day allocution arguments.
Since Petit, however, both this Court and the Court of Appeals have determined that the denial of allocution under MCR 6.425(D)(1)(c) constitutes plain error requiring reversal. See People ? Petty, 469 Mich. 108, 121, 665 N.W.2d 443 (2003); People ? Bailey, 330 Mich App 41, 67-68, 944 N.W.2d 370 (2019). Accordingly, defendants remain entitled to resentencing when their rights to allocution under the present court rule are violated. Moving forward, I encourage the bench and bar to rely on this caselaw interpreting the current court rule rather than caselaw relying on Berry's interpretation of the former court rules, see, e.g., People ? Parks, 183 Mich App 647, 649, 455 N.W.2d 368 (1990); People v Wells, 238 Mich App 383, 392, 605 N.W.2d 374 (1999); People ? Kammeraad, 307 Mich App 98, 149, 858 N.W.2d 490 (2014).
Zahra and Viviano, JJ., would deny leave to appeal.