People v. Jones , 6 Mich. App. 221 ( 1967 )

6 Mich. App. 221 (1967) 148 N.W.2d 500

PEOPLE
v.
JONES.

Docket No. 1,939.

Michigan Court of Appeals.

Decided February 28, 1967.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey A. Koselka, Prosecuting Attorney, for the people.

Robertson & Bartlow (Alexander M. Des Chenes, Jr., of counsel), for defendant.

T.G. KAVANAGH, J.

Defendant was represented by retained counsel when he pleaded guilty to breaking and entering a business place with intent to commit larcency on October 22, 1964.^[*] The plea was accepted and the case was adjourned for sentencing. The court explained: "We'll call Mr. Kralick [the defendant's counsel] and have him come also and at that time we'll discuss the matter [of sentencing] and decide what should be done."

Defendant was sentenced December 2, 1964. After an unrecorded conference in chambers the court said: "It's my understanding that Mr. Kralick is no longer your attorney. Is that correct?" The defendant answered "Yes." After receiving a negative answer to its question whether defendant had anything to say before sentence was passed, the court proceeded to discuss the factors entering into the length of sentence to be imposed. The court did not inquire whether representation by counsel was desired, nor did the defendant object to proceeding without counsel present. Sentence was 3-1/2 to 10 years.

Motion for a new trial was denied May 13, 1965.

Defendant appeals on the ground that absence of counsel at sentencing deprived him of his constitutional right to representation by counsel and requires the sentence be vacated.

This identical issue was considered in People v. Dye (1967), 6 Mich. App. 217. For the reasons set forth in that opinion we hereby order that the sentence of the trial court herein be vacated and remand this cause for imposition of sentence with defendant's counsel present.

QUINN, P.J., and FITZGERALD, J., concurred.

NOTES

[*] CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1965 Cum Supp § 28.305).