PEOPLE OF MI V WILLIE LAMOND WILSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
March 8, 2005
9:00 a.m.
Plaintiff-Appellee,
v
No. 250804
Oakland Circuit Court
LC No. 2003-190421-FC
WILLIE LAMOND WILSON,
Defendant-Appellant.
Official Reported Version
Before: Schuette, P.J., and Sawyer and O'Connell, JJ.
O'CONNELL, J. (concurring in part and dissenting in part).
While I agree that transferring the case after trial for sentencing by a judge unfamiliar
with the trial was plain error, I would hold that this type of error does not require proof of
prejudice. I would vacate defendant's sentence and remand to the trial judge for resentencing. In
my opinion, if at all possible, a defendant has the right to be sentenced by the judge who presided
over his trial.
At issue is the right to be sentenced, whenever possible, by the trial judge, the judge who
is most familiar with the evidence. People v Bart (On Remand), 220 Mich App 1, 8; 558 NW2d
449 (1996). Trial judges personally observe each witness's demeanor, so they sit in the best
position to judge a witness's credibility. Id. Therefore, the right adds an extra measure of
integrity, fairness, and justice to the process. It is a tenet of our judicial system based on the
soundest of principles, and we should not discard it for the sake of administrative efficiency.
Nor should we rationalize this error on the basis that sentencing itself is now a product of the
cold calculation of points assigned to jargonistic acronyms.1 It is in this modern climate that the
1
While I admit that guidelines serve a legitimate purpose, the thought of removing all trace of
humanity from the sentencing process deeply disturbs me. The sentencing function should not
operate like a spreadsheet program that instructs judges to punch in OV (offense variables), PRV
(prior record variables), and grid factors and then spits out the computer-generated sentence.
Nor should sentences become abstract scores calculated by shifting OV and PRV beads on a
designated grid’s abacus. Sentencing is an integral and critical part of a judge’s role in our
society. It is best left, if at all possible, to the individual judge who is most familiar with the
facts of each case. It is not simply a “mechanical function” requiring a working knowledge of
the infamous legislative sentencing guidelines. The legislative guidelines have, to a degree,
(continued…)
-1-
majority requires defendant to prove actual prejudice and then proceeds to demonstrate that any
reasonable offer of proof is easily reduced to speculation. For example, it is not enough that the
sentencing judge rejected the lighter sentence recommended by the probation officer and the
original prosecutor, because the trial judge also might have rejected it, if given the chance.
I would hold that the error fits within that small class of errors that do not require a
particularized showing of prejudice to receive a remedy. People v Carines, 460 Mich 750, 763 n
8; 597 NW2d 130 (1999); United States v Olano, 507 US 725, 735; 113 S Ct 1770; 123 L Ed 2d
508 (1993). I would take this approach for three reasons. First, it is counterintuitive to move for
the removal of a judge about to sentence you and ask to be sentenced instead by the trial judge
who convicted you. Second, as explained, it is nearly impossible to demonstrate any actual
prejudice, no matter how severe it may be. Therefore, under these circumstances, the prejudice
requirement fails to serve any legitimate purpose. Third, the error adversely affects the validity
of the process more than it affects any one defendant. The lack of a thoroughly informed judge
at sentencing increases the risk of injustice, regardless of whether the outcome is more or less
favorable to the particular defendant. These factors work in tandem to erode the very purpose of
the process: to tailor a punishment as closely as possible to the criminal and the crime. Because
the error seriously affects the integrity of the sentencing process, the correct remedy is to vacate
defendant's sentence and remand for resentencing by the trial judge.2 Carines, supra at 763.
I concur in the balance of the majority opinion.
/s/ Peter D. O'Connell
(…continued)
computerized the sentencing function. I hope that the guidelines have not so systemized
sentencing that fastidious categorization and math skills are now adequate substitutes for the
knowledge and experience a trial court acquires during the course of trial.
2
Of course, it is entirely possible that the trial judge is no longer available to resentence
defendant. Under these circumstances, I would concede that the obligation to resentence
defendant would fall to the judge who originally sentenced him, because the sentencing judge in
this case had some initial exposure to the case. Therefore, if the trial judge were to be
unavailable, the sentencing judge could simply reinstate the original judgment of sentence
without the need for a new hearing. While the error would remain serious, it would simply lack
any realistic remedy.
-2-
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