PEOPLE OF MI V MICHAEL ANGELO CHRISTIAN (Dissenting Opinion)
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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED August 19, 2021 Plaintiff-Appellee, v No. 356693 Oakland Circuit Court LC No. 2020-274016-FH MICHAEL ANGELO CHRISTIAN, Defendant-Appellant. Before: RIORDAN, P.J., and MARKEY and SWARTZLE, JJ. RIORDAN, P.J. (dissenting). I respectfully dissent. Defendant argues that he is entitled to resentencing because he was not physically present when he was originally sentenced. The majority agrees, concluding that resentencing is warranted under People v Heller, 316 Mich App 314; 891 NW2d 541 (2016). But Heller, contrary to the majority analysis, did not address issue preservation and whether such preservation—or lack thereof—may affect the outcome of an appeal in which a defendant argues that resentencing is warranted because they were not physically present at sentencing. Thus, Heller is not controlling here.1 I would conclude that the issues before us are unpreserved because defendant failed to object at sentencing. 1 In 2018, our Supreme Court remanded a case to this Court for consideration as on leave granted to address whether “[a] defendant’s unpreserved claim regarding his or her lack of physical presence at sentencing is subject to review for plain error. See People v Heller, 316 Mich App 314 (2016).” People v Enciso, 503 Mich 920 (2018). It therefore seems that our Supreme Court does not necessarily understand Heller as creating a per se rule that a defendant who is sentenced without his or her physical presence is entitled to resentencing when the issue is unpreserved. -1- Therefore, we should properly review this matter under the plain-error standard of People v Carines, 460 Mich 750; 597 NW2d 130 (1999). The general rule for preserving most sentencing errors is set forth by MCR 6.429(C): A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals. By its plain language, MCR 6.429(C) only applies when the alleged sentencing error concerns either “the scoring of the sentencing guideless” or “the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range.” Our Supreme Court has indicated that when the alleged sentencing error is not within the scope of MCR 6.429(C)—such as an alleged error concerning the constitutionality of the sentence—then the issue is preserved only by raising it at sentencing. See People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015) (“The defendant did not object to the scoring of the OVs at sentencing on Apprendi/Alleyne [constitutional] grounds, so our review is for plain error affecting substantial rights.”); People v McCuller, 479 Mich 672, 695; 739 NW2d 563 (2007) (“Here, defendant did not raise any constitutional challenge during sentencing. Therefore, defendant must show plain error affecting substantial rights.”). In the matter before us, defendant argues that he is entitled to be resentenced because his lack of physical presence at sentencing was a violation of MCR 6.006(A) or his constitutional rights, or both. Because the issues defendant raises are outside the scope of MCR 6.429(C), his post-sentence motion for resentencing did not preserve these issues for appeal.2 Thus, in my view, it is unnecessary to decide whether the lack of physical presence at sentencing is properly categorized as a violation of a court rule, a non-structural constitutional error, or a structural constitutional error, because in all three instances, the same plain-error standard would apply. See People v Cain, 498 Mich 108, 118 n 4; 869 NW2d 829 (2015) (“We need not decide at this time whether the error here [failure to swear in the jury] was limited to a violation of a court rule, as the prosecutor argues, or was a structural constitutional error, as defendant argues, because it is undisputed that since this is an unpreserved error, defendant must satisfy the plain-error standard of Carines in either event.”); Carines, 460 Mich at 771 (applying the plain-error standard to unpreserved non-structural error). 2 Concluding that this issue is unpreserved is consistent with the principle that defendants should “raise objections at a time when the trial court has an opportunity to correct the error, which could thereby obviate the necessity of further legal proceedings and would be by far the best time to address a defendant’s constitutional and nonconstitutional rights.” People v Grant, 445 Mich 535, 551; 520 NW2d 123 (1994). Had defendant objected to his lack of physical presence during sentencing, the trial court would have been in a position to immediately stop conducting the allegedly improper proceedings, and this entire appeal might have been avoided. -2- Under the plain-error standard, the defendant must establish the following four elements to be entitled to relief: (1) that the error occurred, (2) that the error was ‘plain,’ (3) that the error affected substantial rights, and (4) that the error either resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings. [People v Vaughn, 491 Mich 642, 665; 821 NW2d 288 (2012) (citation omitted).] I agree with defendant that the error here—sentencing without his physical presence—satisfies the first two elements of the plain-error standard, i.e., that error occurred and it was plain. However, in my view, defendant has not sustained his burden of satisfying the third element of the plainerror standard, i.e., that the error “affected substantial rights.” Defendant fails to articulate any basis whatsoever to suggest that he was prejudiced. He has not shown or even argued, for example, that he would have received a lighter sentence if he was physically present. Further, the record shows that defendant was able to personally address the trial court and was represented by counsel who argued on his behalf. Defendant therefore has failed to show prejudice for purposes of the plain-error standard.3 To the extent that defendant argues that trial counsel was ineffective for failure to object to the error, he is not entitled to relief for the same reason, i.e., he failed to show prejudice. See id. at 674 (“[B]ecause this is not one of the three circumstances in which the Supreme Court of the United States has held that trial counsel’s ineffective assistance automatically results in Strickland prejudice, we conclude that an ineffective assistance of counsel claim premised on either counsel’s waiver of or failure to object to the Sixth Amendment right to a public trial requires a showing of actual prejudice before the defendant is entitled to relief.”). 3 Our Supreme Court has explained that an unpreserved structural error automatically satisfies the first three elements of the plain-error standard but that the defendant still must satisfy the fourth element. Id. at 666-667. Thus, if the error here is categorized as an unpreserved structural error, defendant would be deemed to have shown prejudice. Nonetheless, in such a case, I would conclude that defendant still is not entitled to relief because he failed to satisfy the fourth element, i.e., that the error either resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings. There is no suggestion that defendant is actually innocent and, in my view, sentencing by videoconference during a global pandemic does not seriously affect the fairness, integrity, or public reputation of judicial proceedings. -3- Accordingly, defendant is not entitled to relief and I would affirm.4 /s/ Michael J. Riordan 4 If defendant had preserved these issues, then he would be entitled to relief if the error is constitutional in nature. A defendant is automatically entitled to relief for a preserved structural error, id. at 673, and preserved non-structural errors are reviewed “to determine whether the beneficiary of the error has established that the error was harmless beyond a reasonable doubt,” People v Sammons, 505 Mich 31, 56; 949 NW2d 36 (2020). Here, the prosecution has not shown beyond a reasonable doubt that the error was harmless. In other words, the prosecution has not shown beyond a reasonable doubt that defendant would not have received a lighter sentence if he was physically present. I note that at least one federal district court has concluded that the denial of a defendant’s right to be physically present at sentencing is not structural error. Robinson v Hill, 2018 WL 7501271 (CD CA, 2018). The federal district court quoted from a decision of the United States Court of Appeals for the Ninth Circuit: “The list of structural errors that the Supreme Court has recognized is short and limited,” and “[t]he Supreme Court has never held that the exclusion of a defendant from a critical stage of his criminal proceedings constitutes a structural error.” Campbell v Rice, 408 F3d 1166, 1172 (CA 9, 2005). -4-
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