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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 31, 2022
Plaintiff-Appellee,
v No. 356731
Ionia Circuit Court
CARL LEE HARBENSKI, LC No. 2020-018027-FH
Defendant-Appellant.
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.1 We affirm the scoring of the
sentencing guidelines, but remand for in-person resentencing.
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
1
People v Harbenski, unpublished order of the Court of Appeals, entered May 5, 2021 (Docket
No. 356731).
-1-
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.2
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.3
2
Defendant had a Killebrew agreement to sentencing within the guidelines range.
3
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 NW2d 340 (2013). “Clear error exists when the reviewing court is left
-2-
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
with a definite and firm conviction that a mistake was made.” People v Brooks, 304 Mich App
318, 319-320; 848 NW2d 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.
-3-
rights. Administrative Order No. 2020-6, 505 Mich cxxxiv (2020).4 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 NW2d 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 NW2d 663 (1993).
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.
* * *
4
The order was entered on April 7, 2020, and later rescinded by an order entered on July 26, 2021.
-4-
. . . . 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 NW2d
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
US 1, 8; 119 S Ct 1827; 144 L Ed 23 35 (1999) (explaining that a structural error is one that
-5-
“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 ___; ___ NW2d ___ (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.
/s/ Colleen A. O’Brien
/s/ Douglas B. Shapiro
-6-