Opinion
No. 332262
06-20-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHARLES RAYMOND TROUT, JR., Defendant-Appellant.
UNPUBLISHED Hillsdale Circuit Court
LC No. 14-383477-FH Before: SWARTZLE, P.J., and SAAD and O'CONNELL, JJ. PER CURIAM.
In this case, defendant pleaded guilty to one count of operating or maintaining a laboratory involving methamphetamine. MCL 333.7401c. The trial court sentenced defendant by videoconference while he was located in the Hillsdale County jail and the trial court's sentence departed upward from the sentencing guidelines recommendation. Defendant appeals both the videoconference and the upward departure by delayed leave granted. We remand for resentencing consistent with this opinion.
People v Trout, Jr, unpublished order of the Court of Appeals, entered May 13, 2016 (Docket No. 332262).
The prosecutor originally charged defendant with several drug-related offenses. Defendant pleaded guilty, however, to only one felony count of operating or maintaining a laboratory involving methamphetamine.
Defendant was not personally present in the courtroom when the trial court sentenced him. Rather, defendant appeared by videoconference from jail. The record does not contain any testimony or other evidence showing that defendant gave his consent to appear via video. The prosecutor and defendant's attorney were present in the courtroom. The trial court scored defendant's guidelines range at 87 to 145 months. The trial court, however, opined that the guidelines "fail[ed] to consider or give adequate weight to a number of factors." The trial court then discussed on the record five "substantial and compelling" reasons to warrant departure from the sentencing guidelines, including defendant's history of crime, his substance abuse problem, and his history of violating probation and parole. The trial court upwardly departed from the sentencing guidelines and sentenced defendant to 160 to 240 months' imprisonment with credit for 64 days served.
We begin and end our analysis with defendant's challenge to being sentenced without his physical presence in the courtroom. MCR 6.006(A) grants the trial court the discretion to require a defendant to appear via videoconference for a misdemeanor offense; the rule does not similarly grant the court that same discretion when defendant is sentenced for a felony offense. People v Heller, 316 Mich App 314, 317-318; 891 NW2d 541 (2016). Rather, a defendant found guilty of a felony offense has a right to be physically present during the "imposition of sentence" as a "stage of the trial where the defendant's substantial rights might be adversely affected." People v Mallory, 421 Mich 229, 247; 365 NW2d 673 (1984). There is nothing in the record to suggest that defendant affirmatively waived this right.
This Court has held that a defendant may waive the right to be physically present during felony sentencing. People v Palmerton, 200 Mich App 302; 503 NW2d 663 (1993); see also MCR 6.006(C). Indeed, "[i]t is not seriously questioned that a defendant has the power to waive constitutional rights, provided he does so intelligently, understandingly and voluntarily." People v Buie, 298 Mich App 50, 57; 825 NW2d 361 (2012) (internal quotation marks and citation omitted). --------
Accordingly, we remand for resentencing. On remand, the trial court may not require defendant to appear via videoconference for resentencing. Defendant's remaining claim for resentencing based on the upward departure is dismissed as moot.
We do not retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Henry William Saad
/s/ Peter D. O'Connell