Order Michigan Supreme Court
Lansing, Michigan
April 10, 2009 Marilyn Kelly,
Chief Justice
137272 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman
Plaintiff-Appellee, Diane M. Hathaway,
Justices
v SC: 137272
COA: 285108
Wayne CC: 07-005505
DONALD JAMES TOUCHSTONE,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the May 29, 2008 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
KELLY, C.J. (dissenting).
I dissent from this Court’s decision to deny leave to appeal for the reasons stated
in my dissenting opinion in People v Petit.1 I would remand this case to the trial court for
resentencing. The trial court did not give defendant an opportunity to address the court at
sentencing. This was a clear violation of MCR 6.425(E)(1)(c).
As I noted in Petit, “[a]s early as 1689, the common law acknowledged that
reversal is required when a court fails to invite a defendant to speak before sentencing.”2
This case involves facts more egregious than those in Petit.3 Thus, given the importance
of the right of allocution and the outright denial of that right here, I would remand this
case for allocution and resentencing.
1
People v Petit, 466 Mich 624, 636-639 (2002) (Kelly, J., dissenting).
2
Petit, supra at 637 (Kelly, J., dissenting).
3
In Petit, a majority of this Court concluded that the trial court’s question regarding
whether the parties had “anything further” provided defendant with an adequate
opportunity to address the court. In this case, by contrast, the record indicates that the
trial court offered no one an opportunity to address the court at any time during the
sentencing hearing.
2
Finally, I concur with Justice Markman’s dissenting statement regarding the
assessment of probation fees and would include in the remand order directions to the trial
court to properly apply MCL 771.3c.
MARKMAN, J. (dissenting).
Because the trial court failed to follow the Legislature’s clear direction in MCL
771.3c, I dissent. That provision directs a court to recoup probation fees from a
defendant and provides in part that:
In determining the amount of the fee, the court shall
consider the probationer’s projected income and financial
resources. The court shall use the following table of
projected monthly income in determining the amount of the
fee to be ordered:
Projected Monthly Income Amount of Fee
$ 0-249.99 $0
$ 250.00-499.99 $10
$ 500.00-749.99 $25
$ 750.00-999.99 $40
$ 1,000.00 or more 5% of projected monthly
income, but not more than
$135.
. . . If the court orders a higher amount, the amount and
the reasons for ordering that amount shall be stated in the
court order. [MCL 771.3c(1).]
Absent any explanation, the trial court here assessed defendant a $10 monthly fee (for 24
months), although the only evidence regarding defendant’s income showed that he earned
$200 a month, correlating with a $0 monthly fee. Accordingly, I would remand to the
trial court for that court to either waive the fee or state “the reasons for ordering” the
higher fee, as required by law.4
4
Judge White, dissenting in the Court of Appeals, would also have “direct[ed] the trial
court to consider the probation costs . . . .” Unpublished order of the Court of Appeals,
entered July 24, 2008 (Docket No. 285108).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 10, 2009 _________________________________________
0407 Clerk