People v. Smith

243 N.W.2d 681, 68 Mich. App. 551, 1976 Mich. App. LEXIS 1030

Opinions

J. H. Gillis, P. J.

Judge Allen and I are in agreement with that portion of Judge Kelly’s opinion which affirms the conviction. We agree with the language set forth therein and the reasoning embodied in his opinion for affirmance.

We further agree that the defendant should receive any credit for time served to which he may be entitled. GCR 1963, 785.8(3), People v Peterson, 62 Mich App 258; 233 NW2d 250 (1975).

We, however, disagree with Judge Kelly’s determination that the trial court erred when sentencing defendant by failing to provide him with an opportunity to inform the court of any specific or mitigating circumstances relevant to imposing sentence.

The total sentencing transcript consists of 7-1/4 pages. The attorney had some input at the time of sentence, and towards the end of the transcript covering the plea, the trial court said, "Anything more, Mr. Pliskow?” We all recognize that it is the duty of the attorney to speak for and on behalf of his client. When Mr. Pliskow advised the court that there was nothing further, we would construe this statement to mean that neither defense counsel nor his client had any additional statements to make to the court. We cannot equate the facts in this case with those in People v Gonzales, 60 Mich App 450, 454; 231 NW2d 393 (1975). In the Gonzales case, the court advised the defendant that he had discussed the matter in chambers with his counsel. It was apparent that defendant was not present during the discussion. Such is not the situation in our case where the record clearly denotes that the defendant was standing with counsel before the bench during the entire discussion.

Again, in People v Brewer, 60 Mich App 517, 523; 231 NW2d 375 (1975), the judge’s remarks at sentencing indicated he had discussed the matter of sentencing at length with defense counsel in chambers; on appeal we stated that this Court could not assume that this off-the-record discussion allowed the defendant any opportunity to allocute. The facts here, again, are contra to those in the Brewer case.

We, therefore, vote to affirm the conviction without a remand to the trial court for the purpose of resentencing.

Allen, J., concurred.