People v. Bellafant , 105 Mich. App. 788 ( 1981 )

105 Mich. App. 788 (1981) 307 N.W.2d 422

PEOPLE
v.
BELLAFANT

Docket No. 48816.

Michigan Court of Appeals.

Decided April 23, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gary L. Walker, Prosecuting Attorney (by Leonard J. Malinowski, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.

Before: MacKENZIE; P.J., and T.M. BURNS and BASHARA, JJ.

PER CURIAM.

Defendant appeals as of right his June 18, 1979, bench trial conviction of assaulting a prison employee. MCL 750.197c; MSA 28.394(3). On August 31, 1979, defendant was sentenced to a term of nine months to four years imprisonment, this sentence to be served consecutively to the one that he was serving at the time of the assault.

Defendant first argues that his conviction violates double jeopardy because he had already been required to forfeit earned good time as a result of the same assault. Prior panels of this Court have considered this issue and found it to be lacking in merit. Pfefferle v Corrections Comm, 86 Mich. App. 366, 373; 272 NW2d 563 (1976), People v Bachman, 50 Mich. App. 682; 213 NW2d 800 (1973), lv den 392 Mich. 776 (1974).

Similarly, we reject defendant's argument that the statute under which he was convicted violates the title-object clause of the Michigan Constitution. Const 1963, art 4, § 24. This Court considered this argument in People v Wingo, 95 Mich. App. 101, 105; 290 NW2d 93 (1980), and found that "Section 197c of the penal code does not embrace an object that is not expressed in * * * [its] title".

We have considered defendant's contention that the prison assault statute applies only to assaults that are made during an attempt to escape from prison. However, we are not persuaded by this argument. The clear language of the statute unambiguously expresses a legislative intention contrary to defendant's argument. People v Boyd, 102 Mich. App. 112; 300 NW2d 760 (1980). Where the Legislature makes its intent known through the clear and explicit language of a statute, this Court must enforce that intent. Cronin v Minster Press, 56 Mich. App. 471; 224 NW2d 336 (1974).

We also disagree with defendant's contention that he is entitled to resentencing because he was not present at an in-chambers sentencing conference.

We do not find the in-chambers conference to be a crucial step in the criminal process requiring defendant's presence. The record reveals that the defendant was given the right of allocution prior to the imposition of sentence. Therefore, we find no error. People v Briggs, 94 Mich. App. 723, 727; 290 NW2d 66 (1980), People v Worden, 91 Mich. App. 666; 284 NW2d 159 (1979).

Affirmed.

T.M. BURNS, J. (dissenting in part and concurring in part).

I agree that defendant's conviction of assaulting a prison employee contrary to MCL 750.197c; MSA 28.394(3) should be affirmed. However, I agree with defendant that error occurred when a sentencing conference was held in the chambers of the judge without him. See People v McIntosh, 101 Mich. App. 422, 423; 300 NW2d 584 (1980) (T.M. BURNS, J., dissenting).

The right of a defendant to allocute at sentencing is protected by GCR 1963, 785.8(2). However, this right means nothing unless a defendant can respond with particularity to all factors taken into account by the judge when determining an appropriate sentence. Where a defendant is denied the opportunity to be present at a sentencing conference such as the instant one, that defendant cannot be expected to be aware of all considerations that went into the determination of his sentence, nor can he be expected to adequately refute any inaccurate information that may have arisen during the in-chambers conference.

The better procedure to follow when a defendant's attorney wishes to speak privately with a sentencing judge is to have the defendant waive on the record his right to be present at the sentencing discussion prior to the time that it is held. Because no such waiver was made in this case, and because the record does not reflect that defendant was ever apprised of what was said at the in-chambers conference, I believe that we must remand for resentencing.