If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

- 1

- 

### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED March 31, 2022

v No. 356731 Ionia Circuit Court CARL LEE HARBENSKI

, LC No. 2020

- 018027

- FH

Defendant

- Appellant.

Before: O’B RIEN , P .J., and S HAPIRO and B OONSTRA , JJ

.

B OONSTRA , J

. ( concurring ).

I fully concur in Part II.A. of the majority opinion. I concur in the result of Part II.B . of the majority opinion. In doing so, I agree that the trial court plainly erred by sentencing defendant by videoconference without securing his personal waiver of his right to be physically present for sentencing. 1 The trial court instead errantly rel ied on the pendency of a public health crisis, on defense counsel having coordinat ed defendant’s appearance at the videoconference sentencing, and on defendant’s failure to object to proceeding with the sentencing by videoconference. 2

As a result, I have no serious qualms about remanding this matter for in

- person sentencing (or for videoconference sentencing with an express waiver). However, the majority goes farther

1 MCR 6.006(A) authorizes trial courts to conduct various criminal proceedings by videoconference. Among the proceedings so authorized are “sentencings for misdemeanor offenses.” Id . By implication, therefore, the court rule does not authorize sentencings by videoconference for felony offenses, such as those of which defendant was convicted.

2 At the beginning of the videoconference sentencing hearing, defense counsel indicated that defendant wished to withdraw his no

- contest plea. However, whe n given the opportunity to explain why, defendant stated that he wished to proceed to sentencing without moving to withdraw his plea. Yet, defendant was not expressly asked whether he waived his right to be physically present for sentencing.- 2

-

to declar e for the first time that the trial court’s error was not on ly a violation of the court rule, but that it was constitutional error, and further that it was not only constitution al error, but that it was structural , constitutional error that automatically satisfies the third (i.e., “prejudice”) prong of plain

- error analysis, 3 and that also presumptively satisfies the fourth prong of that analysis. 4 But

s tretching the law to reach that result in this case is both unnecessary and ill

- advised. Other than citing to People v Heller , 316 Mich App 314; 891 NW2d 541 (2016) , t he parties have not addressed the constitutional nature of the error, and nowhere have they addressed whether the error, even if a constitutional one, was a structural error. And , on inspection, the reed on which the majority relies for declaring it to be such is a thin one

. The majority bases its conclusion on this Court’s decision in Heller . Yet, the majority seemingly acknowledges that Heller did not decide the issue; the majority instead opines that Heller “strongly indicated” that the lack of in

- p erson sentencing for felony convictions was structural error because it stated that sentencing by videoconference was “fundamentally unfair.” Heller indeed did state the latter , but without any citation or analysis. Heller , 316 Mich App at 321. For wholly unrelated reasons, Heller remanded for further consideration of the defendant’s sentence under People v Milbourn , 435 Mich 630; 461 NW2d 1 (1990), and United States v Crosby , 397 F3d 103 (CA 2, 2005). Heller , 316 Mich App at 317. The Heller panel then concluded that if the defendant elected to be resentenced, he must be physically present in the
courtroom , musing that our Supreme Court had omitted felony sentences from MCR 6.006(A) “[p]resumably because sentencing is a critical stage of a cri minal proceeding at which a defendant has a constitutional right to be present.” Heller , 316 Mich App at 318. For that proposition, Heller cited People v Mallory , 421 Mich 229; 365 NW2d 673 (1984) . However, Mallory had nothing to do with sentencing . In stead, in Mallory , our Supreme Court reversed the defendants ’ convictions as a result of evidentiary errors, as well as the exclusion of the defendants from the jury view of the crime scene. The Court did, in passing, mention the “imposition of sentencing ” as being among the stages of a criminal proceeding at which a defendant has a right to be. But it nowhere held or intimated that the lack of in

- person sentencing was a structural , constitutional error. 5

3 As the majo rity notes, “[t] he third requirement [of plain

- error analysis] generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. ” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

4 As the majorit y also notes, the fourth prong of plain

- error analysis requires that the error must have resulted in the conviction of an actually innocent defendant or “seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant ’ s innocence .” Id . at 763

- 764 (quotation marks and citation omitted). See also People v Vaughn , 491 Mich 642, 665; 821 NW2d 288 (2013).

5 Heller also cited United States v Villano (On Rehearing) , 816 F2d 1448 (CA 10

, 1987)

. Villano

, however, merely addressed whether a trial court’s unambiguous oral sentence would control over a discrepancy with a written order of commitment. Id . at 1451

- 1452. Heller ’s citation to People v Triplett , 407 Mich 510 ; 287 NW2d 165 (1980), is even less c onsequential ; Triplett merely held- 3

-

T he United States Supreme Court has recognized th at “most constitutional errors can be harmless.” Neder v United States , 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999)

, citing Arizona v Fulminante ,499 US 279, 306; 111 S Ct 1246; 113 L Ed 2d 302 (1991). The Court in Neder stress ed that the class of errors that are “structural” is a very narrow one :
“[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a
st rong presumption that any other [constitutional] errors that may have occurred are subject to harmless

- error analysis.” Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)

. Indeed, we have found an error to be “structural,”

a nd thus subject to automatic reversal, only in a “very limited class of cases.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 ( 1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand j ury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self

- representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); Sullivan v. Lo uisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable

- doubt instruction). [ Neder , 527 US at 8.]

On the current record, I conclude not only that it is unnecessary to reach this issue in this case, but that we as a Court are n ot in a position at this juncture, in this COVID

- era case, without the benefit of focused briefing or argument, to so cavalierly define a videoconferencing sentencing as a member of the narrowly

- described and limited class of errors that should henceforth be deemed “structural.” And that is particularly true now that our Supreme Court has seen fit to declare that structural errors automatically satisfy the third prong of plain

- error review and presumptively satisfy the fourth

- prong of plain

- error review. See People v Davis , ___ Mich ___; ___ NW2d ___ (2022) (Docket No. 161396). 6 In my judgment, such result

- driven decisio ns do

that a reasonably

- updated presentence report is important for a defendant’s individualized sentencing determination. Id . at 515

- 516. And Heller ’s citation to a dissenting opinion in United States v Davern , 970 F 2d 1490 , 1516 (CA 6, 1992) ( J ONES , J., dissenting) , is precisely that

– a citation to a dissenting opinion in another case that had nothing to do with in

- person or remote sentencing issues, or with structural or non

- structural errors.

6 I share Justice Z AHRA ’ s ex pressed concern with the process by which the Court in Davis reached its decision (without regard to whether it was legally correct), in that the Court appears to have opted to revamp the preexisting plain

- error framework sua sponte and without receiving input from the parties or other interested persons or groups. See People v Davis , ___ Mich ___; ___ NW2d ___ (2022) (Docket No. 161396) ( Z AHRA , J., concurring in the result). See also People v Hammerlund , ___ Mich App ___; ___ NW2d ___ (2021) (Docket No . 355120) ( B OONSTRA , J, dissenting) (“ If this is indeed how our system of justice is going to operate, then one might fairly wonder why we don’t simply skip the fact

- finding and initial decision

- making that by design take place in the trial courts of this state, and the deliberations that subsequently occur in this Court on an initial appeal, and instead simply ‘Advance to Go’ in the Supreme Court.”).- 4

-

not make for good law or sound judicial decision

- making ; in my view, reviewing courts applying such decisions should be even more v igilant about unnecessar il y exten ding such decisions to new factual or legal situations

. For these reasons, I concur in the majority’s decision to remand for resentencing (or in affording defendant the opportunity to waive his right to in

- person sentencin g), but would do so without reaching the structural error issue.

/s/ Mark T. Boonstra