People v. Petit

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 17, 2002

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 119348

LINDA PETIT,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

MARKMAN, J.

We granted leave to appeal in this case to consider

whether defendant must be resentenced because the trial court

did not specifically ask defendant if she wished to allocute,

that is, speak on her own behalf, before she was sentenced

pursuant to a sentence agreement. The Court of Appeals denied

leave to appeal. We conclude that defendant was given an

opportunity to allocute as required by MCR 6.425(D)(2)(c).

Accordingly, we affirm defendant’s sentence.

 I. FACTS AND PROCEDURAL HISTORY

Defendant was charged with first-degree murder and

felony-firearm for the shooting death of her sister. Pursuant

to a plea agreement, defendant pleaded nolo contendere but

mentally ill to second-degree murder and felony-firearm. In

return, it was agreed that defendant would be sentenced to 16½

to 40 years for second-degree murder, plus two years for

felony-firearm.

At the sentencing hearing, defendant’s attorney allocuted

on defendant’s behalf. The court also heard from the victim’s

daughter. Although the court asked if there was “anything

further” before it imposed sentence pursuant to the agreement,

and defense counsel specifically responded, “No, Judge,” the

court did not specifically ask defendant if she had anything

to say on her own behalf before the court sentenced her.

Defendant argues that this failure violated MCR

6.425(D)(2)(c), and thus that she is entitled to be

resentenced. The Court of Appeals denied leave to appeal.

This Court subsequently granted leave to appeal. 465 Mich 942

(2002).1

1
We granted leave to appeal in this case in order to

consider

whether the failure to afford the defendant an

opportunity to allocute at sentencing is harmless

error in light of the fact that the sentence to be

(continued...)

2

 II. STANDARD OF REVIEW

This case presents an issue involving the interpretation

of a court rule, which, like a matter of statutory

interpretation, is a question of law that we review de novo.

CAM Construction v Lake Edgewood Condominium Ass’n, 465 Mich

549, 553; 640 NW2d 256 (2002).

III. ANALYSIS

MCR 6.425(D)(2)(c), the court rule that defendant alleges

the trial court violated at sentencing, provides in relevant

part:

At sentencing the court, complying on the

record, must:

* * *

(c) give the defendant, the defendant’s

lawyer, the prosecutor, and the victim an

opportunity to advise the court of any

circumstances they believe the court should

consider in imposing sentence . . . .

As is apparent, this straightforward rule requires the trial

court to provide a defendant an “opportunity” to address the

court before the sentence is imposed. At issue here is

whether defendant had such an opportunity. We conclude that

1
(...continued)

imposed was a part of the guilty plea agreement.

See People v Berry, 409 Mich 774 (1980).

However, because we conclude that the trial court here did

afford defendant an opportunity to allocute at sentencing, as

required by MCR 6.425(D)(2)(c), and thus that there was no

error, we do not reach the question of harmless error.

3

she did.

It is well established that we interpret the words of a

court rule in accordance with their “everyday, plain meaning.”

CAM Construction, supra at 554, quoting Grievance

Administrator v Underwood, 462 Mich 188, 194; 612 NW2d 116

(2000). “Opportunity” is commonly defined as:

1. an appropriate or favorable time or

occasion. 2. a situation or condition favorable for

attainment of a goal. 3. a good position, chance,

or prospect, as for success. [Random House

Webster’s College Dictionary (1995).]

Accordingly, this court rule means that the trial court must

make it possible for a defendant who wishes to allocute to be

able to do so before the sentence is imposed. However, in

order to provide the defendant an opportunity to allocute, the

trial court need not “specifically” ask the defendant if he

has anything to say on his own behalf before sentencing. The

defendant must merely be given an opportunity to address the

court if he chooses.

In this case, although the court did not specifically ask

defendant if she wished to allocute, it did ask if there was

“anything further?” and defense counsel said, “No, Judge.”

While it is unclear to whom this question was addressed, it is

clear that defendant’s counsel responded to the court’s

inquiry by indicating that there was, in fact, nothing further

4

to say.2 At this juncture, defendant had the option, that is,

the opportunity, of addressing the court, and she was not

precluded or prevented from doing so.

In our judgment, the trial court’s failure to

specifically ask defendant if she had anything to say did not

violate MCR 6.425(D)(2)(c) because this rule simply does not

require such a personal and direct inquiry. It is noteworthy

that some of our court rules do require the court to

personally address the defendant, see, e.g., MCR 5.941(C)

(requiring the court to “personally address the juvenile”);

MCR 6.302(B) (requiring the court to “speak[] directly to the

defendant”); MCR 6.402 and MCR 6.410 (requiring the court to

“address[] the defendant personally”). To give meaning to

those instances where our court rules require the court to

directly address the defendant and to those rules, like that

at issue here, where they do not, we conclude that MCR

6.425(D)(2)(c) only requires that the opportunity to allocute

2
We would like to point out that we do not, as the

dissent asserts, conclude that “defense counsel’s response

indicates that defendant had nothing to say.” Post at 3. As

the dissent acknowledges, “[t]he record provides no basis,

aside from speculation,” to conclude that defendant did not

have anything to say. Id. However, the inverse is also true;

that is, the record provides no basis, aside from speculation,

to conclude that defendant did have something to say.

Further, the issue here is not whether defendant had something

to say, but rather, whether defendant had the opportunity to

say something, and we conclude that defendant did have such an

opportunity.

5

be given. Accordingly, in our judgment, the trial court here

complied with the rule by generally asking if there was

“anything further.”3

We are reinforced in our conclusion that we have given

the proper reading to MCR 6.425(D)(2)(c) by reference to the

United State Supreme Court’s handling of a similar matter in

Green v United States, 365 US 301; 81 S Ct 653; 5 L Ed 2d 670

(1961). Green arose out of a dispute concerning an analogous

federal rule covering sentencing in the federal courts.4 In

Green, the trial court asked, “Did you want to say something?”

Id. at 302. As in our case, it is unclear to whom this

question was directed. However, also as in our case, it is

3
Although we conclude that the trial court here did

comply with the court rule, we note that asking generally if

there is “anything further” is certainly not the best way to

provide a defendant with an opportunity to allocute. Rather,

the best way to provide such an opportunity is to specifically

ask the defendant if he has anything to say.

The dissent emphasizes that to require a specific inquiry

would establish a bright line rule that would be easy to

understand and easy to apply. Post at 2-3. While this is

unquestionably true, we do not agree that such a specific

inquiry is necessarily required by the court rule.

4
Fed R Crim P 32(a), in effect at the time Green was

decided, required the trial court to provide the defendant

with an “opportunity” to allocute. Fed R Crim P 32(a)

provided:

Before imposing sentence the court shall

afford the defendant an opportunity to make a

statement in his own behalf and to present any

information in mitigation of punishment.

6

clear that it was the defendant’s counsel who responded to the

court’s inquiry.

Faced with the claim that these trial court proceedings

were not in compliance with Fed R Crim P 32(a), the United

States Supreme Court first noted that “[i]f Rule 32(a)

constitutes an inflexible requirement that the trial judge

specifically address the defendant, e.g., ‘Do you, the

defendant, Theodore Green, have anything to say before I pass

sentence?’ then what transpired in the present case falls

short of the requirement.” Id. at 303. However, the Court

ultimately concluded that such a personal and direct inquiry

is not necessary to provide the defendant with an opportunity

to allocute. Accordingly, the Court provided, “we do not read

the record before us to have denied the defendant the

opportunity to which Rule 32(a) entitled him. The single

pertinent sentence—the trial judge’s question ‘Did you want to

say something?—may have been directed to the defendant and not

to his counsel.”5 Id. at 304 (emphasis added). On these

facts, the Court concluded that the judge’s question afforded

the defendant a sufficient opportunity to allocute, and thus

5
The Court noted that perhaps there was a “significant

cast of the eye or [a] nod of the head” that would not be

apparent from the record. Green, supra at 304-305.

7

the court rule was not violated.6

We are aware that our construction in People v Berry, 409

Mich 774; 298 NW2d 434 (1980), of the former version of this

court rule, GCR 1963, 785.8, is inconsistent with our

interpretation of the current version, MCR 6.425(D)(2)(c).

GCR 1963, 785.8 provided in relevant part:

Sentencing. Before sentence is imposed the court

shall:

* * *

(2) give defendant and his lawyer a reasonable

opportunity to advise the court of any

circumstances they believe the court should

consider in imposing sentence;

* * *

Provisions of subrule 785.8 are mandatory and

6
Although the Supreme Court concluded that the rule was

not violated, it also made clear that “[t]rial judges before

sentencing should, as a matter of good judicial

administration, unambiguously address themselves to the

defendant. Hereafter trial judges should leave no room for

doubt that the defendant has been issued a personal invitation

to speak prior to sentencing.” Id. at 305. Accordingly, the

federal rule has since been revised to provide:

Before imposing sentence, the court must:

(C) address the defendant personally and

determine whether the defendant wishes to make a

statement and to present any information in

mitigation of the sentence. [Fed R Crim P

32(c)(3).]

We also would urge trial courts, as a better practice, to

specifically ask the defendant if he has anything to say on

his own behalf before sentencing because this is the surest

way of demonstrating compliance with MCR 6.425(D)(2)(c).

8

 failure to comply shall require resentencing.

[Emphasis added.]

In Berry, this Court concluded that GCR 1963, 785.8

requires strict compliance and should be understood

in all cases to require the trial court to inquire

specifically of the defendant separately whether he

or she wishes to address the court before the

sentence is imposed.[7] [Id. at 781.]

Additionally, we provided that, under this rule, a defendant

must be given a reasonable opportunity to allocute, even where

the court sentences the defendant pursuant to a sentence

agreement. Id. at 780-781.

The principal difference between the former and the

present court rule is that the latter no longer provides that

“failure to comply shall require resentencing.”8

The provision . . . declaring that a failure

to comply with the provisions of that subrule

“shall require resentencing” was deleted from this

subrule [in 1989]. Whether failure to comply with

a provision in this subrule will entitle a

defendant to resentencing [now] depends on the

nature of the noncompliance and must be determined

by reference to past case law or on an individual

7

In order to “inquire specifically of the defendant,”

the court would have had to personally address, and directly

ask, the defendant, “do you have anything to say before you

are sentenced?” See Green, supra at 303.

8
Although the dissent points out that under common law,

reversal was required when a court failed to invite a

defendant to speak before sentencing, post at 2, such a

reversal is no longer automatically required under the current

court rule.

9

 case basis. [MCR 6.425, 1989 Staff Comment.][9]

Further, while the former rule required the court to provide

a defendant with a “reasonable opportunity” to allocute, the

current rule requires the court to provide a defendant with an

“opportunity” to allocute.10

As noted above, in our interpretation of the former rule,

we required that the trial court “specifically” ask the

defendant if “he or she wishes to address the court before the

sentence is imposed.”11 Berry, supra at 781. However, we no

longer believe that such a specific inquiry is required

because the straightforward language of the court rule simply

requires a trial court to provide a defendant with an

opportunity to allocute. Such language cannot be read to

require the court to “specifically” ask the defendant if he

9
We note that this staff comment is not part of the text

of the court rule, nor is it a binding interpretation of the

rule. People v Grove, 455 Mich 439, 456; 566 NW2d 547 (1997).

10
We are not at all sure what the significance is, if

any, of the deletion of the word “reasonable” in the current

rule. A rule requiring an “opportunity” to allocute, in our

judgment, necessarily implies a “reasonable opportunity” to

allocute.

11
In Berry, supra at 781, this Court simply stated that

“[t]he rule . . . should be understood in all cases to require

the trial court to inquire specifically of the defendant

separately whether he or she wishes to address the court

before the sentence is imposed.” It came to this conclusion

without addressing the meaning of the term “opportunity,” and,

therefore, without addressing whether that was required, in

its judgment, in order to provide a defendant with an

“opportunity” to allocute.

10

has anything to say before being sentenced. It merely

requires that the defendant be presented with an opportunity

to allocute. Accordingly, we overrule Berry to the extent

that its construction of former rule GCR 1963, 785.8 is

inconsistent with our interpretation of MCR 6.425(D)(2)(c).

IV. STARE DECISIS

It is well established that overruling precedent must be

undertaken with caution. The application of stare decisis is

generally “‘the preferred course because it promotes the

evenhanded, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the

judicial process.’” Robinson v Detroit, 462 Mich 439, 463; 613

NW2d 307 (2000), quoting Hohn v United States, 524 US 236,

251; 118 S Ct 1969; 141 L Ed 2d 242 (1998).12 “However, stare

decisis is not to be applied mechanically to forever prevent

the Court from overruling earlier erroneous decisions . . . .”

Id. at 463.

Rather, when a court errs by misconstruing a court rule,

a subsequent court should not blindly apply such a

misconstruction on the basis of the doctrine of stare decisis,

but should instead overrule the earlier court’s

12
“Stare decisis” is defined as “[t]o abide by, or adhere

to, decided cases.” Black’s Law Dictionary (6th ed).

11

misconstruction. Id. at 467. We must keep in mind that

“stare decisis is a ‘principle of policy’ rather than ‘an

inexorable command.’” Id. at 464 (citations omitted).

Accordingly, “this Court will not close its eyes to a possible

error it may have committed in the past.” Wilson v Doehler-

Jarvis, 358 Mich 510, 514; 100 NW2d 226 (1960).

However, “[b]efore this court overrules a decision

deliberately made, it should be convinced not merely that the

case was wrongly decided, but also that less injury will

result from overruling than from following it.” McEvoy v

Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006 (1904). In

this regard, courts must consider:

(a) whether the earlier decision was wrongly

decided, and (b) whether overruling such decision

would work an undue hardship because of reliance

interests or expectations that have arisen.

[Robertson v DaimlerChrysler Corp, 465 Mich 732,

757; 641 NW2d 567 (2002).]

With regard to the first inquiry, we believe, as we have

already observed, that Berry was wrongly decided. The court

rule provides simply that the trial court must provide a

defendant with an opportunity to allocute before being

sentenced, while Berry concluded that the court must

“specifically” ask the defendant whether he has anything to

say before being sentenced. However, in our judgment, such a

personal and direct inquiry is not required by the court rule.

12

Rather, the court rule simply requires the court to provide a

defendant with an opportunity; it says nothing about

personally addressing the defendant or speaking directly to

the defendant.

With regard to the second inquiry, we must examine

“whether the previous decision has become so embedded, so

accepted, so fundamental, to everyone’s expectations that to

change it would produce not just readjustments, but practical

real-world dislocations.” Robinson, supra at 466. We

conclude that the decision in Berry has not become so

fundamental that overruling it will interfere with any

legitimate reliance or expectation interests. “[T]o have

reliance, the knowledge must be of the sort that causes a

person or entity to attempt to conform his conduct to a

certain norm before the triggering event.” Id. at 467. Our

decision in Berry cannot be said to have caused defendants to

alter their conduct in any way. Therefore, our decision here

will create no “practical real-world dislocations.”

Because of our decision in Berry, courts are now in the

practice of specifically asking defendants if they have

anything to say before sentencing. We agree with the United

States Supreme Court that this is the best of practices

because it will “leave no room for doubt” that the defendant

has been provided the required opportunity to allocute. See

13

Green, supra at 305. Accordingly, trial courts should

continue this practice because it is the most certain way to

ensure that they have acted in compliance with MCR

6.425(D)(2)(c).

For these reasons, we conclude that Berry was wrongly

decided and overruling it will not interfere with legitimate

reliance or expectation interests. Accordingly, after

considering the imperatives of stare decisis, we believe that

it is appropriate here to overrule Berry to the extent that

its construction of former rule GCR 1963, 785.8 is

inconsistent with our interpretation of MCR 6.425(D)(2)(c).13

V. CONCLUSION

That the trial court is required to provide a defendant

with an opportunity to allocute means only that the trial

court must allow the defendant a chance to speak on his own

behalf before being sentenced. This does not mean that the

trial court must specifically ask the defendant whether he

wishes to allocute, although this would be the most certain

way to ensure that all defendants who do want to allocute on

13
The dissent concludes that the trial court’s general

inquiry was not sufficient under Berry because Berry requires

a specific inquiry, and thus resentencing is required. Post

at 1. Although we agree with the dissent that the trial

court’s inquiry was not sufficient under Berry, we conclude

that the trial court’s inquiry did comply with the plain

language of the court rule, and that is all that the trial

court was required to do. Accordingly, there is no need to

remand for resentencing.

14

their own behalf are, in fact, given the opportunity to do so.

In this case, defendant was given the opportunity to address

the court when the court asked if there was “anything

further.” Accordingly, the trial court complied with the

requirement of MCR 6.425(D)(2)(c), and thus we affirm the

sentence imposed on defendant by the trial court.

CORRIGAN , C.J., and CAVANAGH , WEAVER , TAYLOR , and YOUNG , JJ.,

concurred with MARKMAN , J.

15

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 119348

LINDA PETIT,

Defendant-Appellant.

___________________________________

KELLY, J. (dissenting).

I disagree with the majority's conclusion that defendant

had the opportunity envisioned by MCR 6.425(D)(2)(c) to

address the court before sentencing. This decision is an

unfortunate departure from precedent.

We held in People v Berry1 that compliance with the right

of allocution requires the sentencing court to specifically

address the defendant. The trial judge's general inquiry of

"anything further" directed apparently at no one in particular

was not sufficient under Berry or under the principles that

1
409 Mich 774; 298 NW2d 434 (1980).

gave rise to it. Therefore, I would remand the case to the

sentencing court for proper allocution and resentencing.

The right of allocution is deeply embedded in this

country’s criminal jurisprudence. As early as 1689, the

common law acknowledged that reversal is required when a court

fails to invite a defendant to speak before sentencing. Green

v United States, 365 US 301, 304; 81 S Ct 653; 5 L Ed 2d 670

(1961); United States v De Alba Pagan, 33 F3d 125, 129-130 (CA

1, 1994). The right of allocution is designed to temper

punishment with mercy and to ensure that sentencing reflects

individualized circumstances. Its value lies in maximizing

the perceived equality of the process. Id. at 129.

In keeping with these principles, we announced in Berry

in 1980 that the right of allocution is "an important and

integral aspect of the truth-discovery purpose of the criminal

justice process . . . ." Berry, supra at 780-781. The right

provides a defendant with an opportunity to make a statement

in mitigation, extenuation, or justification of the crime for

which a sentence is being imposed. Id. at 780. Nothing has

occurred during the intervening twenty-two years to alter

those truths. Berry was not wrongly decided.

It established a bright line rule easily applied by the

courts. It avoided litigation in cases, as in the case before

us, where the record is ambiguous about whether a defendant

2

was given an intelligible opportunity to address the

sentencing judge. The Berry rule guaranteed defendants a fair

and meaningful opportunity to exercise the right to allocute.

It signaled to trial court judges that they should not

pronounce sentence before specifically asking whether a

defendant wished to speak.

The majority removes this easily understood and easily

applied rule for no good reason. It replaces the rule with

one that encourages sloppiness and uncertainty in the

imposition of sentences.

Despite the majority's acknowledgment that it is unclear

whom the sentencing court was addressing here, it concludes

that defense counsel's response indicates that defendant had

nothing to say. This overlooks the possibility that defendant

might have had something to say even if defense counsel was

unaware of it or had nothing more to say himself. The record

provides no basis, aside from speculation, for concluding

otherwise.

The majority's reasoning also ignores the intimidating

environment of a courtroom. It ignores the stress of

sentencing for a person like defendant who was most certainly

about to lose her liberty. It is not reasonable to presume,

as does the majority, that a defendant will seize on such a

vague inquiry as "anything further" as representing a last

3

opportunity to address the court before sentencing.

Given the importance of the right of allocution and the

flaws present in the sentencing here, the best rule is the

longstanding and accepted rule of Berry. Because the trial

judge failed to specifically inquire of defendant whether she

wished to address the court before sentencing, defendant was

denied her right to allocute under MCR 6.425(D)(2)(c). I

would abide by the rule of stare decisis and remand the case

to the sentencing court to give defendant an opportunity to

allocute and for resentencing.

4