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