People v. Gasco

104 Mich. App. 594 (1981) 305 N.W.2d 552

PEOPLE
v.
GASCO

Docket No. 49124.

Michigan Court of Appeals.

Decided March 16, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.

George S. Buth, for defendant on appeal.

Before: ALLEN, P.J., and J.H. GILLIS and D.F. WALSH, JJ.

J.H. GILLIS, J.

Defendant was convicted by a jury which found him to be guilty of breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, but mentally ill. MCL 768.36(1); MSA 28.1059(1). He was sentenced to 10 to 15 years imprisonment and appeals as of right.

The sole issue raised on appeal asserts that defendant's exclusion from an in-chambers presentence conference between defense counsel and the trial judge requires remand for resentencing.

In 16 published and unpublished opinions released since August, 1979, this Court has declined to reverse or remand for resentencing because the defendant was excluded from an in-chambers presentence conference.^[1] Fifteen of the 16 judges who have been elected to the Court of Appeals and who have voted on the issue have joined in this position. In the main, the defendants' arguments were rejected because (1) there is no express requirement that a defendant be present at such conferences; (2) defendants' right of allocution under GCR 1963, 785.8(2), was enforced, and no more is required; (3) there is no authority in support of the argument that such a conference is a "critical stage" of the criminal proceedings; and (4) until the Michigan Supreme Court decides People v Pulley, (Docket No. 78-2410, decided January 23, 1979 [unreported]), lv gtd 407 Mich. 946 (1979), the prevailing view in this Court must control.

Our review of the cited opinions persuades us that defendant's assertion of error in the instant case must also be rejected. People v Worden, 91 Mich. App. 666, 685; 284 NW2d 159 (1979), People v Briggs, 94 Mich. App. 723, 727; 290 NW2d 66 (1980), lv gtd 408 Mich. 958 (1980), People v McIntosh, 101 Mich. App. 422; 300 NW2d 584 (1980) (T.M. BURNS, J., dissenting), People v Dumas, 102 Mich. App. 196; 301 NW2d 849 (1980), and People v Donaldson, 102 Mich. App. 552; 302 NW2d 229 (1980).

Our conclusion on this issue is further premised on the following considerations. Defendant argues that the presentence conference is a critical stage of the criminal proceeding: The conference is "a stage where substantial rights may be affected and where his presence relates to the opportunity to defend against the charge". This statement is not entirely correct, given that the charge against the defendant has already been decided and there is nothing in that regard against which to defend.

In the abstract, almost any part of the criminal proceeding might arguably be termed a critical stage. Oral argument before an appellate court might be so labeled. However, the attorney alone approaches the appellate court, and the same defense representative has traditionally appeared without defendant at the presentence conference. This procedure is not vulnerable per se to allegations of prejudice as defense counsel has no reason to attend such proceedings but for the purpose of zealously representing the defendant's interests.

Affirmed.

NOTES

[1] See, People v Worden, 91 Mich. App. 666, 685; 284 NW2d 159 (1979), People v Briggs, 94 Mich. App. 723, 727; 290 NW2d 66 (1980), lv gtd 408 Mich. 958 (1980), People v McIntosh, 101 Mich. App. 422; 300 NW2d 584 (1980) (T.M. BURNS, J. dissenting), People v Dumas, 102 Mich. App. 196; 301 NW2d 849 (1980), People v Donaldson, 102 Mich. App. 552; 302 NW2d 229 (1980), People v Perkins (Docket No. 47191, decided January 30, 1981 [unreported]), People v Cobb (Docket No. 48436, decided January 13, 1981 [unreported]), People v Smith (Docket No. 48404, decided February 12, 1981 [unreported]), People v Reeves (Docket No. 49693, decided February 12, 1981 [unreported]), People v Palazzolo (Docket No. 48514, decided February 12, 1981 [unreported]), People v Weber (Docket No. 49694, decided January 30, 1981 [unreported]), People v Patterson (Docket No. 47254, decided January 26, 1981 [unreported]), People v Welti (Docket No. 48791, decided February 12, 1981 [unreported]), People v McClurkin (Docket No. 49965, decided February 13, 1981 [unreported]), People v Decker (Docket No. 49695, decided February 11, 1981 [unreported]), and People v Huddleston (Docket No. 49966, decided February 11, 1981 [unreported]).