Part II—Sentencing Matters

8.7Sentencing Hearing

“A defendant is entitled to assistance of counsel at sentencing because it is a critical stage of the criminal proceedings at which substantial rights may be affected.” People v Smith, 423 Mich 427, 452 (1985); Mempa v Rhay, 389 US 128, 134 (1967).¹ See also In re Parole of Hill, 298 Mich App 404, 413 (2012); MCR 6.005(A); MCR 6.005(E).

A.Before Sentencing Hearing

A sentencing court “is afforded broad discretion in the sources and types of information to be considered when imposing a sentence, including relevant information regarding the defendant’s life and characteristics.” People v Albert, 207 Mich App 73, 74 (1994).

A defendant’s sentence must be based on accurate information; a defendant’s constitutional right to due process is implicated if his or her sentence is based on inaccurate information. US Const, Am XIV; Const 1963, art 1, § 17; Townsend v Burke, 334 US 736, 740-741 (1948); People v Haugh, 435 Mich 876 (1990). The content of a defendant’s presentence investigation report (PSIR) is properly considered by the sentencing court in making its sentencing decision. People v Armstrong, 305 Mich App 230, 245 (2014); People v Fleming, 428 Mich 408, 418 (1987). A victim has the right to provide a written victim impact statement to be included in a defendant’s PSIR.² MCR 6.425(A)(1)(g). See also MCL 771.14(2)(b); MCL 780.764 (victim may provide an oral statement for use in the PSIR).

All parties (prosecutor, defendant, and defense attorney) must be given an opportunity to read and discuss the defendant’s PSIR and explain or challenge the accuracy or relevancy of any information contained in the PSIR.³ MCL 771.14(5)-(6); MCR 6.425(B). See also People v Miles, 454 Mich 90, 100 (1997); People v Eason, 435 Mich 228, 233 (1990).

B.Right to Allocution at Sentencing Hearing

“‘Allocution’ generally refers to ‘[a]n unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence.” People v Petty, 469 Mich 108, 119 n 7 (2003), quoting Black’s Law Dictionary (7th ed). Additionally, allocution “ensures that sentencing reflects individualized circumstances,” and “maximiz[es] the perceived equity of the process.” Petty, 469 Mich at 121 (cleaned up). Denial of the right to allocute constitutes plain error and requires resentencing. See People v Bailey, 330 Mich App 41, 67-68 (2019) (because failure to give defendant the opportunity to allocute “most certainly affected the fairness of the judicial proceeding,” “it [was] necessary to vacate [defendant’s] sentence and remand for the limited purpose of providing [defendant] with the opportunity for allocution at resentencing”).

MCR 6.425(D)(1)(c) governs allocution procedure. According to MCR 6.425(D)(1)(c)(ii), at the sentencing hearing and before imposing sentence, the court must, on the record, “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence[.]”⁴

A juvenile’s right to address the court in designated proceedings. A juvenile defendant involved in a designated proceeding must be given an opportunity to speak at the hearing held to determine whether the court will enter an order of disposition, or impose or delay imposition of sentence.⁵ Petty, 469 Mich at 121-122. See also MCR 3.955(A). The juvenile, the juvenile’s attorney, the prosecutor, and the victim must be given “an opportunity to advise the court of any circumstances they believe the court should consider in deciding whether to enter an order of disposition or to impose or delay imposition of sentence.” Id. If the court decides to sentence the juvenile as an adult, allocution would be available pursuant to MCR 6.425(D). See MCR 3.955(C).

C.Crime Victim’s Statement at Sentencing Hearing⁶

A crime victim has a constitutional right “to make a statement to the court at sentencing.”⁷ Const 1963, art 1, § 24. The Crime Victim’s Rights Act gives a victim, or the victim’s designee, the opportunity to make a statement at the defendant’s sentencing or disposition hearing about the impact of the offense. MCL 780.765(1) (felony convictions); MCL 780.793(1) (juvenile offenses); MCL 780.825(1) (serious misdemeanor convictions); People v Cobbs, 443 Mich 276, 285 (1993); People v Williams, 244 Mich App 249, 253-254 (2001).See also MCR 6.425(D)(1)(c)(iv) (“At sentencing, the court must, on the record   before imposing sentence   address any victim of the crime who is present at sentencing or any person the victim has designated to speak on the victim’s behalf and permit the victim or the victim’s designee to make an impact statement    “).

D.Restitution⁸

A crime victim’s right to restitution is preserved in Michigan’s Constitution. Const 1963, art 1, § 24. Restitution is specifically authorized or addressed under a number of statutes and court rules. See, e.g., MCL 780.766 and MCL 780.767 (felony article of the CVRA); MCL 780.794 and MCL 780.795 (juvenile article of the CVRA); MCL 780.826 (misdemeanor article of the CVRA); MCR 6.427(11) (restitution included in judgment of sentence). MCL 769.1a is the general restitution statute.

E.Additional Sentencing Requirements for Student Offenders

“As part of its adjudication order, order of disposition, judgment of sentence, or order of probation a court shall order that an individual who is convicted of or, a juvenile who is adjudicated for, a violation of [MCL 750.520b, MCL 750.520c, MCL 750.520d, MCL 750.520e, or MCL 750.520g] and who is a student at a school in this state is prohibited from doing either of the following:

(a) Attending the same school building that is attended by the victim of the violation.

(b) Utilizing a school bus for transportation to and from any school if the individual or juvenile will have contact with the victim during use of the school bus.” MCL 750.520o(1).