6.15Allocution

“‘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).

While the trial court is “not under any obligation to accept anything” a defendant states during allocution, and it may “state as much when imposing sentence,” it must recognize that “allocution is the defendant’s opportunity to address the court, not the court’s opportunity to conduct an interrogation or deliver a lecture.” People v Dixon-Bey, 340 Mich App 292, 302 (2022) (noting that during allocution, the trial court must give “the defendant a meaningful opportunity to speak”). Further, the principle expressed in Michigan Code of Judicial Conduct, Canon 3(A)(12)—that the trial court should avoid interruptions except for clarification and should not display premature judgment—“applies to a defendant’s allocution.” Dixon-Bey, 340 Mich App at 303. MCR 6.425(D)(1)(c)(ii) requires the trial court to “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”

A.Caselaw Examples

Defendant was denied his right to allocution where “the trial court, without justification, interrupted [the defendant] almost immediately” after asking him if he had anything to say before the court imposed the sentence, and “then proceeded to impose [the defendant’s] sentence without providing [him] with the opportunity to speak further” in “clear violation of [MCR 6.425(D)(1)(c)¹].” People v Bailey, 330 Mich App 41, 67 (2019). Further, the failure to comply with MCR 6.425(D)(1)(c) was plain error likely affecting the outcome of the proceedings because the defendant “was not given an opportunity to inform the trial court of ‘any circumstances’ that he believed the trial court should consider when crafting and imposing the sentence,” and “[t]his could have resulted in [defendant] being given a longer sentence, and it most certainly affected the fairness of the judicial proceeding.” Bailey, 330 Mich App at 67-68.

The “defendant was offered only an illusory and superficial opportunity for allocution” where “the trial court actively prevented defendant from expressing remorse and responsibility after the crime by focusing on the crime itself,” and interrupting her to ask several questions focused on its interpretation of the crime. People v Dixon-Bey, 340 Mich App 292, 302, 303 (2022). Ultimately, “[d]efendant declined to speak further, following the trial court’s dismissive response to her attorney’s objection to the trial court grilling defendant instead of listening to her.” Id. at 303. The Court of Appeals concluded that defendant’s decision not to continue speaking could not “be construed as an expression of satisfaction,” and was “far more likely to have been the result of intimidation in light of the fact that the trial court had abandoned its role as an impartial magistrate and instead usurped the role of prosecutor.” Id. at 303.

Where no record evidence indicated that the trial court had decided on a particular sentence before the defendant’s allocution, a defendant’s right to allocute at his or her sentencing hearing is not rendered meaningless simply because the sentencing judge has prepared a written statement of reasons for departing from the sentencing guidelines before the sentence is actually imposed. People v Grady, 204 Mich App 314, 316 (1994).

B.Mandatory Sentences and Sentence Agreements

“[T]he mandatory nature of a sentence does not ipso facto render the common-law right to allocute inapposite.” Petty, 469 Mich at 120-121 (noting allocution also ensures “sentencing reflects individualized circumstances,” and maximizes “the perceived equity of the process”) (quotation marks and citation omitted). Even where a defendant’s statement will not affect the sentence imposed—as in a mandatory term or the penalty outlined in a sentence agreement—a defendant must be given the opportunity to allocute. Id. (requiring allocution in the context of sentencing for felony-murder). See also People v Smith, 96 Mich App 346, 348-349 (1980) (requiring allocution even where defendant entered into a sentence agreement).

C. Juvenile Defendants

A juvenile defendant who is convicted in a designated case proceeding and who receives an adult sentence must be given an opportunity to allocute at his or her sentencing hearing. Petty, 469 Mich at 121. “To deny a juvenile a meaningful opportunity to allocute at the only discretionary stage of a combined dispositional and sentencing proceeding would seriously affect the fairness and integrity of the judicial proceeding, particularly when the juvenile is subject to an adult criminal proceeding.” Id. See MCR 3.955(A) (requiring the court to give the juvenile, juvenile’s lawyer, the prosecutor, and the victim an opportunity to address the court regarding sentencing).

D.Statements From Others

The court rule requires the court to give the defendant’s lawyer before sentencing “an opportunity to speak on the defendant’s behalf,” and “the prosecutor an opportunity to speak equivalent to that of the defendant’s attorney.” MCR 6.425(D)(1)(c)(i), and MCR 6.425(D)(1)(c)(iii). Further, MCR 6.425(D)(1)(c)(iv) requires the Court to address “any person the victim has designated to speak on the victim’s behalf and permit the . . . victim’s designee to make an impact statement.” MCR 6.425(D)(1)(c)Additionally, the court has discretion to allow additional nonparties to address the court at sentencing. People v Albert, 207 Mich App 73, 74-75 (1994) (trial court did not abuse its discretion in allowing a victim’s attorney in a civil case against the defendant to address the court, over the defendant’s objection).