Opinion
356731
03-31-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CARL LEE HARBENSKI, Defendant-Appellant.
UNPUBLISHED
Ionia Circuit Court LC No. 2020-018027-FH
Before: O'Brien, P.J., and Shapiro and Boonstra, JJ.
Per Curiam.
Defendant pleaded no contest to first-degree home invasion, MCL 750.110a(2), and assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84. At a sentencing hearing conducted via two-way interactive videoconference technology, the trial court sentenced defendant, as a third-offense habitual offender, MCL 769.11, to serve concurrent terms of 20 to 40 years' imprisonment for the home-invasion conviction and 13 to 20 years' imprisonment for the AWIGBH conviction. Defendant appeals by delayed leave granted. We affirm the scoring of the sentencing guidelines, but remand for in-person resentencing.
People v Harbenski, unpublished order of the Court of Appeals, entered May 5, 2021 (Docket No. 356731).
I. BACKGROUND
Defendant pleaded no contest to home invasion and AWIGBH. The basis for the charges was evidence that around 3:45 a.m. on February 2, 2020, defendant broke into Theresa Lilly's home while Lilly, her daughter and son-in-law-Nicole Ralph and Gregory Ralph-and the Ralphs' grandchildren were sleeping. When Nicole opened her bedroom door to investigate a sound that woke her up, she saw defendant going through her purse. Defendant then charged at Nicole, tackled her, and punched her in the head. After Gregory began fighting with defendant, Nicole attempted to disarm a knife from defendant and screamed for Lilly to call the police. At some point during the fight, defendant stabbed Gregory multiple times. Defendant left the home after Nicole told him he could leave if he just let her and Gregory go.
The trial court held defendant's sentencing hearing on April 29, 2020, via videoconference because of the public health concerns associated with the COVID-19 pandemic, but did not obtain a waiver of defendant's right to be physically present in the courtroom for sentencing. At sentencing the parties disputed the scoring of offense variable (OV) 10, MCL 777.40 (exploitation of a vulnerable victim). The prosecution argued that the trial court should assess 5 points for OV 10 because defendant broke into the home while individuals were sleeping inside. Defendant argued that no points should be assessed because OV 10 is typically scored for assaultive offenses, not home-invasion offenses, and Gregory was awake when defendant assaulted him. The trial court noted the Ralphs were sleeping when the home invasion occurred and, therefore, assessed 5 points for OV 10 when computing defendant's minimum sentence guidelines range for his home-invasion conviction.
The Ralphs and Lilly then gave statements detailing how defendant's conduct stole their sense of security and left the family with lasting emotional harm. During his allocution, defendant apologized to the Ralphs and Lilly for his conduct, explaining that he broke into the home to try to find a way to pay his rent. The trial court sentenced defendant to the top of the sentencing guidelines.
Defendant had a Killebrew agreement to sentencing within the guidelines range.
After sentencing, defendant filed a motion to correct an invalid sentence and for resentencing. Defendant reiterated his arguments regarding OV 10, but also contended that the trial court violated his right to be physically present at sentencing because the court did not provide him the opportunity to waive that right.
After a hearing on defendant's motion, the trial court again concluded that defendant exploited vulnerable victims during the home invasion and was properly assessed 5 points for OV 10. As it pertained to the lack of in-person sentencing, the court reasoned that defendant made no objection to the format even after the court coordinated defendant's appearance at the videoconference sentencing with defendant's counsel. Accordingly, the court denied defendant's motion for resentencing.
II. DISCUSSION
A. OV 10
Defendant first argues that the trial court erred by assessing 5 points for OV 10. We disagree.
The trial court's factual findings under the sentencing guidelines must be supported by a preponderance of the evidence, and we review those findings for clear error. See People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). "Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made." People v Brooks, 304 Mich.App. 318, 319-320; 848 N.W.2d 161 (2014) (quotation marks and citation omitted). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Hardy, 494 Mich. at 438.
OV 10 of the sentencing guidelines addresses the exploitation of vulnerable victims. MCL 777.40(1). OV 10 instructs a trial court to assess no points when the defendant "did not exploit a victim's vulnerability," MCL 777.40(1)(d), and to assess 5 points when the defendant "exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious," MCL 777.40(1)(c). Under OV 10, exploit means "to manipulate a victim for selfish or unethical purposes," MCL 777.40(3)(b), and vulnerability means "the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation," MCL 777.40(3)(c). Defendant argues that the trial court erred by assessing 5 points under OV 10 because Gregory was awake and conscious when defendant assaulted him and therefore defendant did not exploit a vulnerable victim.
Defendant's argument is misguided. The trial court specifically noted it was scoring 5 points under OV 10 for the home-invasion conviction, not the AWIGBH conviction. Thus, the question was not whether defendant exploited Gregory during the assault, but rather, whether defendant exploited Lilly and the Ralphs when he broke into the home. There is no dispute that Lilly, the Ralphs, and the Ralphs' grandchildren were sleeping inside the home when defendant broke in around 3:45 a.m. Although that fact "does not automatically" render the victims vulnerable, MCL 777.40(2) (emphasis added), home invasions are, presumably, easier to accomplish in the middle of the night precisely because the home's inhabitants are asleep, making them vulnerable to a home invasion. Thus, the trial court did not err by finding that the sleeping victims were vulnerable when defendant broke in because they were more susceptible to home invasion and unable to protect themselves from that crime while they were asleep. Moreover, defendant broke into the home for the "selfish or unethical" purpose of stealing money, likely choosing to do so in the middle of the night to exploit the fact the victims would be sleeping and unable to stop or detect him. MCL 777.40(3)(b). For those reasons, the trial court properly assessed 5 points for OV 10 when computing defendant's minimum sentence guidelines range for the home-invasion conviction.
B. DEFENDANT'S PHYSICAL PRESENCE AT SENTENCING
Defendant also argues the trial court erred by denying his motion for resentencing because he did not waive his right to be sentenced in person. Defendant acknowledges that our Supreme Court expansively authorized trial courts to conduct proceedings via videoconference during the COVID-19 pandemic, but maintains that the trial court was still required to provide defendant the opportunity to waive his right to be physically present at sentencing or to request an adjournment until sentencing could be done in person. We agree.
Due to the COVID-19 pandemic, our Supreme Court authorized trial courts to conduct all court proceedings via videoconference to the extent consistent with a defendant's constitutional rights. Administrative Order No. 2020-6, 505 Mich. cxxxiv (2020). However, "sentencing is a critical stage of a criminal proceeding at which a defendant has a constitutional right to be present." People v Heller, 316 Mich.App. 314, 318; 891 N.W.2d 541 (2016). Additionally, MCR 6.006 prohibits trial courts from conducting a felony sentencing by videoconference. See MCR 6.006(A); Heller, 316 Mich.App. at 315-316. A defendant may waive his right to be present at sentencing, and "[a] valid waiver arises when the defendant specifically knows of the right to be present and intentionally abandons the protection of that right." People v Palmerton, 200 Mich.App. 302, 304; 503 N.W.2d 663 (1993).
The order was entered on April 7, 2020, and later rescinded by an order entered on July 26, 2021.
In Heller, 316 Mich.App. at 318-321, this Court explained why felony sentencing is not conducted via videoconference:
Why did the Supreme Court omit felony sentencings from MCR 6.006(A)? Presumably because sentencing is a critical stage of a criminal proceeding at which a defendant has a constitutional right to be present, and virtual appearance is not a suitable substitute for physical presence. The imposition of punishment in a criminal case affects the most fundamental human rights: life and liberty. Our court rules and common law invest sentencing with profound significance, for this grave moment in the criminal process often seals a defendant's fate or dictates the contours of his or her future. Individualized sentencing furthers the goal of rehabilitation by respecting the inherent dignity of each person the law deprives of freedom, civil rights, or property. A defendant's right to allocute before sentence is passed-to look a judge in the eye in a public courtroom while making his or her plea-stems from our legal tradition's centuries-old recognition of a defendant's personhood, even at the moment he or she is condemned to prison. Sentencing is an intensely human process-after all, we are dealing not with machines and equipment, but with human lives.
Undoubtedly, two-way interactive video technology saves courts money and time, and it dramatically lessens security concerns. But in the felony sentencing context, it is simply inconsistent with the intensely personal nature of the process. After all, sentencing is the point where the heart of the law-and its human face-is most clearly revealed. Sentencing by video dehumanizes the defendant who participates from a jail location, unable to privately communicate with his or her counsel and likely unable to visualize all the participants in the courtroom. Moreover, a courtroom is more than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel and public observers. The courtroom setting provides a dignity essential to the process of criminal adjudication. Isolating a defendant from that setting during what may be the most decisive moment of his or her life clashes with the judge's duty to acknowledge the humanity of even a convicted felon.
. . . . Some studies suggest that individuals who appear in court via video conferencing are at risk of receiving harsher treatment from judges or other adjudicators. Courts, too, have recognized that virtual reality is rarely a substitute for actual presence and even in an age of advancing technology, watching an event on the screen remains less than the complete equivalent of actually attending it. Alternatively phrased: In the most important affairs of life, people approach each other in person, and television is no substitute for direct personal contact. Video tape is still a picture, not a life.
Sentencing is more than a rote or mechanical application of numbers to a page. It involves a careful and thoughtful assessment of the true moral fiber of another, a task made far more complex when the defendant speaks through a microphone from a remote location. The trial judge who sentenced Heller never met or sat in the same room with him. In our view, Heller's absence from the sentencing nullified the dignity of the proceeding and its participants, rendering it fundamentally unfair. [Quotation marks, citations, brackets, and ellipses omitted.]
In this case, the prosecution concedes that there was no waiver on the record of defendant's right to be physically present at sentencing. Nor is there a basis in the record to conclude that defendant knew of that right and intentionally relinquished it. The trial court's reasoning for denying defendant's motion for resentencing was that defendant never objected to sentencing via videoconference and that the court worked with defendant's counsel to coordinate defendant's virtual appearance at the videoconference. Defendant's participation in the videoconference hearing, however, is insufficient alone to demonstrate that he voluntarily and knowingly waived his right to be present at sentencing. Thus, the record is silent as to whether defendant specifically knew of his constitutional right to be present at sentencing or whether he intentionally waived that right, and "[a] valid waiver cannot be established from a silent record." Palmerton, 200 Mich.App. at 304. Because defendant did not waive his right to be physically present at sentencing, it was error for the trial court to hold the sentencing hearing via videoconference and inconsistent with defendant's constitutional rights.
The prosecution nonetheless argues that defendant is not entitled to resentencing because he was not prejudiced by the lack of in-person sentencing. This argument implies that plain-error review applies to this issue, and, for purposes of this appeal, we will assume without deciding that it does. Plain error requiring reversal occurs if three requirements are met: "1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999) (emphasis added). Additionally, the error must have resulted in the conviction of an actually innocent defendant or seriously affected "the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 763-764 (quotation marks and citation omitted).
In Heller, 316 Mich.App. at 321, this Court strongly indicated that the lack of in-person sentencing for felony convictions was a structural error when it stated that sentencing via videoconference renders the sentencing "fundamentally unfair." See Neder v United States, 527 U.S. 1, 8; 119 S.Ct. 1827; 144 L.Ed. 23 35 (1999) (explaining that a structural error is one that "affect[s] the framework within which the trial proceeds" and "necessarily render a trial fundamentally unfair[.]") (quotation marks and citation omitted). Considering this statement and Heller's extended discussion on the importance of in-person sentencing, we are compelled to conclude that sentencing via video conference in the absence of a valid waiver is structural, plain error.
Recently, in People v Davis, __ Mich. __; __ N.W.2d __ (2022) (Docket No. 161396), the Supreme Court clarified how to evaluate the third and fourth prong of the plain-error standard with respect to structural errors. Regarding the third prong, the Court held that a showing of prejudice is not required for structural errors because such errors "necessarily affect a defendant's substantial rights." Id. at __; slip op at 16-17. The Court further held that a structural error creates a presumption that the fourth prong is met, i.e., that the error had a serious effect on the fairness, integrity or public reputation of the proceedings. Id. at __; slip op at 14. The burden is on the prosecutor to rebut this presumption by bringing forth specific facts demonstrating the overall fairness, integrity and reputation of the proceedings. Id. at __; slip op at 19.
Thus, per Davis, defendant's substantial rights were necessarily affected by the structural error in this case and he need not establish that he was prejudiced by not being physically present for sentencing. Further, we must presume that this error seriously affected the fairness, integrity or public reputation of judicial proceedings. The prosecutor does not identify specific facts that cure the fundamental unfairness of defendant being denied his right to be physically present for the sentencing. The prosecutor merely notes that defendant was allowed to speak at the virtual sentencing, and that the trial court and defendant could see each other. However, Heller was clear that virtual sentencing is not an adequate substation for the face-to-face interaction between judge. In addition to the dignity afforded to criminal defendants by in-person sentencing, this Court noted research suggesting that "individuals who appear in court via video conferencing are at risk of receiving harsher treatment from judges or other adjudicators." See Heller, 316 Mich.App. at 320 (quotation marks and citations omitted).
In sum, given Heller's conclusion that felony sentencing via videoconference renders the sentence fundamentally unfair, we hold that the lack of in-person sentencing in this case was structural error that affected defendant's substantial rights and seriously affected the integrity and fairness of the judicial proceedings. Accordingly, defendant is entitled to in-person resentencing.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Boonstra, J. (concurring).
I fully concur in Part II.A. of the majority opinion. I concur in the result of Part II.B. of the majority opinion. In doing so, I agree that the trial court plainly erred by sentencing defendant by videoconference without securing his personal waiver of his right to be physically present for sentencing. The trial court instead errantly relied on the pendency of a public health crisis, on defense counsel having coordinated defendant's appearance at the videoconference sentencing, and on defendant's failure to object to proceeding with the sentencing by videoconference.
MCR 6.006(A) authorizes trial courts to conduct various criminal proceedings by videoconference. Among the proceedings so authorized are "sentencings for misdemeanor offenses." Id. By implication, therefore, the court rule does not authorize sentencings by videoconference for felony offenses, such as those of which defendant was convicted.
At the beginning of the videoconference sentencing hearing, defense counsel indicated that defendant wished to withdraw his no-contest plea. However, when given the opportunity to explain why, defendant stated that he wished to proceed to sentencing without moving to withdraw his plea. Yet, defendant was not expressly asked whether he waived his right to be physically present for sentencing.
As a result, I have no serious qualms about remanding this matter for in-person sentencing (or for videoconference sentencing with an express waiver). However, the majority goes farther to declare for the first time that the trial court's error was not only a violation of the court rule, but that it was constitutional error, and further that it was not only constitutional error, but that it was structural, constitutional error that automatically satisfies the third (i.e., "prejudice") prong of plain-error analysis, and that also presumptively satisfies the fourth prong of that analysis. But stretching the law to reach that result in this case is both unnecessary and ill-advised. Other than citing to People v Heller, 316 Mich.App. 314; 891 N.W.2d 541 (2016), the parties have not addressed the constitutional nature of the error, and nowhere have they addressed whether the error, even if a constitutional one, was a structural error. And, on inspection, the reed on which the majority relies for declaring it to be such is a thin one.
As the majority notes, "[t]he third requirement [of plain-error analysis] generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).
As the majority also notes, the fourth prong of plain-error analysis requires that the error must have resulted in the conviction of an actually innocent defendant or "seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 763-764 (quotation marks and citation omitted). See also People v Vaughn, 491 Mich. 642, 665; 821 N.W.2d 288 (2013).
The majority bases its conclusion on this Court's decision in Heller. Yet, the majority seemingly acknowledges that Heller did not decide the issue; the majority instead opines that Heller "strongly indicated" that the lack of in-person sentencing for felony convictions was structural error because it stated that sentencing by videoconference was "fundamentally unfair." Heller indeed did state the latter, but without any citation or analysis. Heller, 316 Mich.App. at 321. For wholly unrelated reasons, Heller remanded for further consideration of the defendant's sentence under People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990), and United States v Crosby, 397 F.3d 103 (CA 2, 2005). Heller, 316 Mich.App. at 317. The Heller panel then concluded that if the defendant elected to be resentenced, he must be physically present in the courtroom, musing that our Supreme Court had omitted felony sentences from MCR 6.006(A) "[p]resumably because sentencing is a critical stage of a criminal proceeding at which a defendant has a constitutional right to be present." Heller, 316 Mich.App. at 318. For that proposition, Heller cited People v Mallory, 421 Mich. 229; 365 N.W.2d 673 (1984). However, Mallory had nothing to do with sentencing. Instead, in Mallory, our Supreme Court reversed the defendants' convictions as a result of evidentiary errors, as well as the exclusion of the defendants from the jury view of the crime scene. The Court did, in passing, mention the "imposition of sentencing" as being among the stages of a criminal proceeding at which a defendant has a right to be. But it nowhere held or intimated that the lack of in-person sentencing was a structural, constitutional error.
Heller also cited United States v Villano (On Rehearing), 816 F.2d 1448 (CA 10, 1987). Villano, however, merely addressed whether a trial court's unambiguous oral sentence would control over a discrepancy with a written order of commitment. Id. at 1451-1452. Heller's citation to People v Triplett, 407 Mich. 510; 287 N.W.2d 165 (1980), is even less consequential; Triplett merely held that a reasonably-updated presentence report is important for a defendant's individualized sentencing determination. Id. at 515-516. And Heller's citation to a dissenting opinion in United States v Davern, 970 F.2d 1490, 1516 (CA 6, 1992) (Jones, J., dissenting), is precisely that - a citation to a dissenting opinion in another case that had nothing to do with in-person or remote sentencing issues, or with structural or non-structural errors.
The United States Supreme Court has recognized that "most constitutional errors can be harmless." Neder v United States, 527 U.S. 1, 8; 119 S.Ct. 1827; 144 L.Ed.2d 35 (1999), citing Arizona v Fulminante, 499 U.S. 279, 306; 111 S.Ct. 1246; 113 L.Ed.2d 302 (1991). The Court in Neder stressed that the class of errors that are "structural" is a very narrow one:
"[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis." Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). Indeed, we have found an error to be "structural," and thus subject to automatic reversal, only in a "very limited class of cases." Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction). [Neder, 527 U.S. at 8.]
On the current record, I conclude not only that it is unnecessary to reach this issue in this case, but that we as a Court are not in a position at this juncture, in this COVID-era case, without the benefit of focused briefing or argument, to so cavalierly define a videoconferencing sentencing as a member of the narrowly-described and limited class of errors that should henceforth be deemed "structural." And that is particularly true now that our Supreme Court has seen fit to declare that structural errors automatically satisfy the third prong of plain-error review and presumptively satisfy the fourth-prong of plain-error review. See People v Davis, __ Mich. __; __ N.W.2d __ (2022) (Docket No. 161396). In my judgment, such result-driven decisions do not make for good law or sound judicial decision-making; in my view, reviewing courts applying such decisions should be even more vigilant about unnecessarily extending such decisions to new factual or legal situations. For these reasons, I concur in the majority's decision to remand for resentencing (or in affording defendant the opportunity to waive his right to in-person sentencing), but would do so without reaching the structural error issue.
I share Justice Zahra's expressed concern with the process by which the Court in Davis reached its decision (without regard to whether it was legally correct), in that the Court appears to have opted to revamp the preexisting plain-error framework sua sponte and without receiving input from the parties or other interested persons or groups. See People v Davis, __ Mich. __; ___ N.W.2d ___ (2022) (Docket No. 161396) (Zahra, J., concurring in the result). See also People v Hammerlund, __ Mich.App. __; __ N.W.2d __ (2021) (Docket No. 355120) (Boonstra, J, dissenting) ("If this is indeed how our system of justice is going to operate, then one might fairly wonder why we don't simply skip the fact-finding and initial decision-making that by design take place in the trial courts of this state, and the deliberations that subsequently occur in this Court on an initial appeal, and instead simply 'Advance to Go' in the Supreme Court.").