People v. Bennett

999 N.W.2d 827

344 Mich.App. 12

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Varien Marcelle BENNETT, Defendant-Appellant.

No. 354903

Court of Appeals of Michigan.

Submitted October 11, 2022, at Grand Rapids.

Decided October 27, 2022, 9:05 a.m.

Berrien Circuit Court, LC No. 2019-003979-FH, Charles T. LaSata, J.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Steve Pierangeli, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.

Daniel N. Martindale for defendant.

Before: Shapiro, P.J., and Gadola and Yates, JJ.

Yates, J.

[1] ₁₄As a matter of tradition and practice, Michigan generally requires each criminal defendant to be sentenced by the judge who took the defendant’s guilty plea. In this case, defendant, Varien Marcelle Bennett, pleaded guilty, as a third-offense habitual offender, MCL 769.11, to assault by strangulation, MCL 750.84, before Judge Sterling R. Schrock. But as a result of an intervening administrative order, his sentencing was scheduled to take place before Judge Charles T. LaSata. Bennett objected, contending that his right to due process would be violated if he were sentenced by any judge other than Judge Schrock. Despite that objection, Judge LaSata sentenced Bennett to 114 to 240 months’ imprisonment to be served consecutively to a prison term that Bennett received for an unrelated conviction. Bennett now appeals by leave granted.¹ We reverse and remand.

I. FACTUAL BACKGROUND

While on parole for an unrelated offense, Bennett demanded his ex-girlfriend come to his residence so he could confront her about the possibility that she was seeing other people. Bennett turned violent after she arrived, punching her in the face several times and beating her with objects such as a pool cue and a metal pipe. Bennett barricaded the residence so that she could not leave. He kept her there for approximately 10 days in a room with a padlocked door and barred windows. Throughout the week, Bennett put his hands around her neck in an attempt to restrict her breathing, beat her repeatedly, and brandished a pistol to ₁₅threaten her. For that conduct, Bennett was charged as a third-offense habitual offender, MCL 769.11, with one count of unlawful imprisonment, MCL 750.349b; one count of felon in possession of a firearm, MCL 750.224f(1); one count of felon in possession of ammunition, MCL 750.224f(6); one count of assault with a dangerous weapon, MCL 750.82(1); and four counts of carrying a firearm during the commission of a felony, MCL 750.227b. Bennett ultimately pleaded guilty to a reduced charge of assault with intent to do great bodily harm less than murder by strangulation, MCL 750.84, as a third-offense habitual offender, in exchange for the dismissal of all other charges. Judge Schrock accepted Bennett’s guilty plea in November 2019. Sentencing was scheduled for January 13, 2020. But before Bennett’s sentencing hearing, Berrien Circuit Court Chief Judge Mabel Johnson Mayfield issued an administrative order that altered judicial assignments.

That order assigned Judge Schrock to another courthouse, so Bennett’s case was reassigned to Judge LaSata for sentencing. Bennett filed an objection to being sentenced by a different judge, contending that only Judge Schrock had sufficient knowledge of the facts to craft a proportionate sentence. Bennett also claimed that having any other judge preside at his sentencing hearing would violate his due-process rights and cause him unfair prejudice. Despite that objection, Judge LaSata conducted Bennett’s sentencing hearing. After considerable discussion of the facts of the case, the presentence investigation report (PSIR), and the scoring of various offense variables, Judge LaSata overruled Bennett’s objection and imposed a sentence at the high end of the applicable sentencing guidelines range because of the violent nature of the crime. Specifically, Judge LaSata sentenced Bennett to serve 114 to 240 months’ imprisonment₁₆ for the conviction offense, to be served consecutively to his sentence for a parole violation. Bennett advanced his argument on appeal, and our Supreme Court ultimately remanded his case "to the Court of Appeals for consideration as on leave granted." See People v Bennett, 508 Mich 1014, 967 N.W.2d 636 (2022). Accordingly, we must address Bennett’s claim that error occurred when Judge LaSata, rather than Judge Schrock, conducted his sentencing hearing.

II. LEGAL ANALYSIS

[2–5] On appeal, Bennett argues that his constitutional due-process rights were violated when he was sentenced by a different judge than the one who accepted his guilty plea.² This Court reviews constitutional questions de novo. People v Wiley, 324 Mich App 130, 164, 919 N.W.2d 802 (2018). Significantly, however, the United States Constitution does not afford a criminal defendant a right to be sentenced by the judge who accepted the guilty plea. Taylor v Bowersox, 329 F.3d 963, 969 (8th Cir. 2003) ("[T]here is no independent federal right to be sentenced by the same judge that took a guilty plea… .").³ Thus, Bennett must make his case for that right under the Michigan Constitution of 1963. Whether such a right exists is a matter we review de novo. Wiley, 324 Mich App at 164, 919 N.W.2d 802. And if no such constitutional right exists, Bennett may nonetheless rely upon a statute, a court rule, or some other ₁₇source of Michigan law to press his objection to the imposition of his sentence by a judge who did not take his guilty plea. Therefore, we shall consider all sources of Michigan law in addressing Bennett’s challenge to his sentencing hearing. In doing so, we review all questions of law de novo. People v Hartwick, 498 Mich. 192, 214, 870 N.W.2d 37 (2015).

[6, 7] In a summary order issued in 1979, our Supreme Court remanded a criminal case with the directive that "defendant be resentenced before the judge who presided at his trial, provided that judge is reasonably available." People v Clemons, 407 Mich. 939, 291 N.W.2d 927 (1979). Such a ruling made good sense in a case where the trial judge heard the evidence that prompted a jury to return a guilty verdict against the defendant, but our Supreme Court provided no legal basis for its summary order. In 1980, our Supreme Court extended that approach to a plea-based conviction, simply stating that "the case is remanded to Monroe Circuit Court with the direction that defendant be sentenced before the judge who accepted his guilty plea, provided that judge is reasonably available." People v Clark, 408 Mich 945 (1980). Four years later, we cited the orders in Clark and Clemons for the proposition that a "defendant is entitled to be sentenced before the judge who accepts his plea provided that judge is reasonably available." People v Van Anker (After demand), 132 Mich App 394, 399, 347 N.W.2d 466 (1984), rev’d in part on other grounds, 419 Mich. 918, 354 N.W.2d 258 (1984) (remanding for resentencing for the reasons stated in Judge Shepard’s partial concurring opinion).⁴ But because "the plea-₁₈taking judge was not reasonably available to sentence defendant since he no longer had the authority to act as a circuit judge in that circuit at the time of sentencing," we concluded that the defendant "therefore [was] not entitled to resentencing by the judge who accepted his guilty plea." Van Auker (After Remand), 132 Mich App at 399, 347 N.W.2d 466. Thus, our ruling in Van Auker provided neither a basis for the rule nor any relief for the defendant. In 1985, however, in yet another case, we not only referred to Clark and Clemons, but also afforded relief to the defendant by remanding the case "with the direction that defendant be resentenced before [the plea-taking judge] if he is reasonably available." People v Humble, 146 Mich App 198, 200, 379 N.W.2d 422 (1985). And so a legal concept was born without any identified constitutional or statutory basis.

[8, 9] In the ordinary course of things, the pronouncement of a concept seemingly created out of whole cloth is closely followed by promulgation of a court rule that formally states the concept in a manner that provides clear guidance to the bench, bar, and litigants. Alas, we have searched in vain for a court rule or statute that recognizes and defines a right to be sentenced by the judge who took the guilty plea.⁵ As a result, we have tried to fill in the details of our own rule by stating that ₁₉"[t]he purpose of the rule is to ensure that the judge who hears the evidence at plea will sentence defendant based upon the circumstances established at the time of the plea." People v Pierce, 158 Mich App 113, 115-116, 404 N.W.2d 230 (1987). Likewise, our Supreme Court has ex- plained that the rule "recognizes that the judge who accepts a defendant’s plea is in the best position to ensure that a defendant’s sentence is ‘based upon the circumstances established at the time of the plea,’ so that, consistently with the ‘modern view of sentencing,’ the sentence imposed is ‘tailored to the particular circumstances of the case and the offender.’ " People v Lee, 489 Mich. 289, 300 n 7, 803 N.W.2d 165 (2011) (citations omitted). To be sure, the combination of a judge’s ability to review a recording or transcript of the plea hearing and the ready access to a detailed PSIR arguably renders unsound that justification of the rule.⁶ Nevertheless, we have confirmed time and time again "that a defendant is entitled to be sentenced before the judge who accepts the plea, provided that judge is reasonably available[.]" People v Robinson, 203 Mich App 196, 197, 511 N.W.2d 713 (1993). Therefore, we are bound by precedent to follow and apply our own rule in this case.

[10] Judge Schrock took Bennett’s guilty plea on November 14, 2019, and received the factual basis for the plea from Bennett. As is often the case, the factual basis was established with only a few questions from the ₂₀trial court and a few corresponding responses from Bennett. After the plea...