People v. Smith

96 Mich. App. 346 (1980) 292 N.W.2d 206

PEOPLE
v.
SMITH

Docket No. 45337.

Michigan Court of Appeals.

Decided March 18, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and William T. Morris, Assistant Prosecuting Attorney, for the people.

Chari Grove, Assistant State Appellate Defender, for defendant on appeal.

Before: M.J. KELLY, P.J., and BRONSON and D.C. RILEY, JJ.

PER CURIAM.

Defendant was convicted by his plea of guilty to the charge of felonious assault, MCL 750.82; MSA 28.277. He was sentenced to a prison term of from one year, two months to four years, and appeals as of right.

Defendant first argues his conviction should be reversed for the trial court's failure to advise him of the four-year maximum sentence for felonious assault. GCR 1963, 785.7(1)(b). See Guilty Plea Cases, 395 Mich. 96, 117-118; 235 NW2d 132 (1975). Apparently it was the original understanding of all involved that defendant would be sentenced to a term of one year and two months to two years. At sentencing, however, the trial court realized it was obligated to impose a four-year maximum. The trial court then informed defendant of the four-year maximum, and gave him the opportunity to withdraw his guilty plea. We hold this was sufficient to overcome the error resulting from the initial failure to advise defendant of the maximum sentence he faced. Realizing that a mistake had been made, the trial court corrected the error and then allowed the defendant a chance to withdraw or stand by his plea based on the correct information. To hold otherwise would remove from the trial court the ability to correct its own errors. Once confronted with an accurate version of the matter, defendant could have chosen to withdraw his plea and begin again, but instead he chose to stand by his plea of guilty. He cannot now claim his plea was given in the absence of information the trial court was required to impart.

Defendant next claims he should be resentenced because he was not given the right to speak before sentence was passed. The right of allocution has been made mandatory by GCR 1963, 785.8(2). The prosecution concedes that defendant was not accorded this right, but argues that, since there was a sentence agreement in the instant case, defendant's allocution would be meaningless. This argument unduly limits the purpose of the allocution right. Standard 5.4(a)(iii) of the American Bar Association's Standards Relating to Sentencing Alternatives and Procedures contains the allocution right, and the commentary to that section concedes that the major argument in favor of such a right is its therapeutic effect. Standing convicted of a crime, the defendant should be accorded the right to speak regardless of whether it will actually affect the sentence ultimately imposed. While any statement the defendant may make might be "meaningless" in terms of the sentence to be received, we cannot say that the individual defendant would regard his or her remarks as meaningless.

Defendant's conviction is affirmed, and the case is remanded to the trial court for resentencing. Before resentencing, defendant will be invited to exercise his right of allocution.

Affirmed and remanded for resentencing.