                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   July 14, 2016
              Plaintiff-Appellee,                                  9:10 a.m.

v                                                                  No. 326821
                                                                   Hillsdale Circuit Court
TRENITY D. HELLER,                                                 LC No. 14-383395- FH

              Defendant-Appellant.


Before: STEPHENS, P.J., and BECKERING and GLEICHER, JJ.

PER CURIAM.

        Defendant Trenity D. Heller pleaded guilty to possession of methamphetamine, MCL
333.7403(2)(b)(i). The trial court sentenced Heller by videoconference, with Heller located in
the county jail. Heller’s counsel was present in the courtroom but raised no objection to his
client’s physical absence. The sentence imposed departed substantially from the guidelines
recommendation.

       Sentencing by videoconference plainly contravenes MCR 6.006, which identifies the
criminal proceedings in which two-way interactive video technology may be used. Felony
sentencing is not one of them. We remand for resentencing consistent with this opinion.

                                                I

       The prosecutor charged Heller with operating or maintaining a methamphetamine
laboratory, MCL 333.7401c; possession of methamphetamine; and possession of marijuana,
MCL 333.7403. Immediately after his videoconferenced arraignment from the jail, Heller
pleaded guilty to possession of methamphetamine. In exchange for this plea the prosecutor
promised to dismiss the other two counts and a pending district court case, and to withhold an
habitual offender charge. MCR 6.006(A) permits courts to use two-way interactive video
technology during “initial arraignments on the warrant or complaint” and “pleas.”

        The trial court also conducted Heller’s sentencing by videoconference. Heller was not
advised that he had an option to appear personally. Nor did the court offer Heller an opportunity
to privately communicate with counsel during the hearing. Heller’s lawyer informed the court
that he had met with Heller a few days earlier to go over the presentence information report,
which had not yet arrived at the jail. Counsel stated: “I assume that he has now received it[.]”
The court made no effort to confirm counsel’s assumption.

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        Heller’s sentencing guideline score placed him in a minimum sentencing guidelines range
of 0 to 17 months. The trial court sentenced him to 30 to 120 months’ imprisonment, justifying
the departure and its extent on Heller’s lengthy offense history, his engagement in the
manufacture of methamphetamine, and his persistent drug abuse. Heller’s delayed application
for leave to appeal advanced both procedural and substantive complaints concerning his
sentence. We granted leave as to both. People v Heller, unpublished order of the Court of
Appeals, entered May 22, 2015 (Docket No. 326821).

                                               II

       We first consider Heller’s challenge to the length of his sentence. The trial court
sentenced Heller before our Supreme Court decided People v Lockridge, 498 Mich 358; 870
NW2d 502 (2015). In Lockridge, the Court directed that “[a] sentence that departs from the
applicable guidelines range will be reviewed by an appellate court for reasonableness.” Id. at
392. In People v Steanhouse, 313 Mich App 1, 48; ___ NW2d ___ (2015), this Court held that
implementation of the reasonableness standard requires remand for consideration of the
sentence’s proportionality pursuant to People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990),
following the remand procedure adopted in United States v Crosby, 397 F3d 103 (CA 2, 2005).
Given Steanhouse’s directive, the trial court must be permitted to reconsider defendant’s
sentence in the light of Milbourn. Heller may avoid reconsideration of his sentence if he
chooses, consistent with Crosby.

                                              III

       Should Heller elect to be resentenced, he must be physically present in the courtroom.

        MCR 6.006(A) catalogs the proceedings in which two-way interactive video technology
may be used in Michigan courts. Listed are: “initial arraignments on the warrant or complaint,
probable cause conferences, arraignments on the information, pretrial conferences, pleas,
sentencings for misdemeanor offenses, show case hearings, waivers and adjournments of
extradition, referrals for forensic determination of competency, and waivers and adjournments of
preliminary examinations.” Felony sentencing is not on the list.

        “The express mention of one thing in a statute implies the exclusion of other similar
things.” In re MCI Telecom Complaint, 460 Mich 396, 415; 596 NW2d 164 (1999). We apply
the same interpretive principle to court rules. People v Buie, 491 Mich 294, 304; 817 NW2d 33
(2012). By carefully delineating the proceedings amenable to the employment of two-way
interactive video technology, the Supreme Court has telegraphed that this means of
communication may not be used elsewhere.

        Why did the Supreme Court omit felony sentencings from MCR 6.006(A)? Presumably
because sentencing is a critical stage of a criminal proceeding at which a defendant has a
constitutional right to be present, People v Mallory, 421 Mich 229, 247; 365 NW2d 673 (1984),
and virtual appearance is not a suitable substitute for physical presence. “The imposition of
punishment in a criminal case affects the most fundamental human rights: life and liberty.”
United States v Villano, 816 F2d 1448, 1452 (CA 10, 1987) (en banc). Our court rules and
common law invest sentencing with profound significance, for this grave moment in the criminal

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process often seals a defendant’s fate or dictates the contours of his future. Individualized
sentencing furthers the goal of rehabilitation by respecting the inherent dignity of each person the
law deprives of freedom, civil rights, or property. People v Triplett, 407 Mich 510, 515; 287
NW2d 165 (1980). A defendant’s right to allocute before sentence is passed—to look a judge in
the eye in a public courtroom while making his plea—stems from our legal tradition’s centuries-
old recognition of a defendant’s personhood, even at the moment he is condemned to prison.
Sentencing is “an intensely human process—after all, we are dealing not with machines and
equipment, but with human lives.” United States v Davern, 970 F2d 1490, 1516 (CA 6, 1992)
(JONES, J., dissenting).

        Undoubtedly, two-way interactive video technology saves courts money and time, and
dramatically lessens security concerns. But in the felony sentencing context, it is simply
inconsistent with the intensely personal nature of the process. After all, “[s]entencing is the
point where the heart of the law—and its human face—is most clearly revealed.” Weinstein, The
Role of Judges in a Government Of, By, and For the People: Notes for the Fifty-Eighth Cardozo
Lecture, 30 Cardozo L Rev 1, 179 (2008). Sentencing by video dehumanizes the defendant who
participates from a jail location, unable to privately communicate with his or her counsel and
likely unable to visualize all the participants in the courtroom. Moreover, a courtroom “is more
than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel and
public observers[.]” Estes v Texas, 381 US 532, 561; 85 S Ct 1628; 14 L Ed 2d 543 (1965)
(WARREN, C.J., concurring). The courtroom setting provides “a dignity essential” to the process
of criminal adjudication. Id. Isolating a defendant from that setting during what may be the
most decisive moment of his life clashes with the judge’s duty to acknowledge the humanity of
even a convicted felon.

        Canadian philosopher Marshall McLuhan’s famous quote, “the medium is the message,”
bears relevance to this discussion. In McLuhan’s words:

       [I]t is the medium that shapes and controls the scale and form of human
       association and action. The content or uses of such media are as diverse as they
       are ineffectual in shaping the form of human association. Indeed, it is only too
       typical that the “content” of any medium blinds us to the character of the medium.
       [McLuhan, Understanding Media: The Extensions of Man (Cambridge: MIT
       Press, 1994), p 9.].

The medium itself—here, videoconferencing from a jail—delivers content of its own. That
content, in turn, influences the perceptions of the participants. Abundant social science research
demonstrates that video conferencing “as a mediating technology” may color a viewer’s
assessment of a person’s credibility, sincerity, and emotional depth. Some studies suggest that
“individuals who appear in court via video conferencing are at risk of receiving harsher treatment
from judges or other adjudicators.” Salyzyn, A New Lens: Reframing the Conversation about the




                                                -3-
Use of Video Conferencing in Civil Trials in Ontario,” 50 Osgoode Hall L J 429, 447 (2012).1
Courts, too, have recognized that “virtual reality is rarely a substitute for actual presence and . . .
even in an age of advancing technology, watching an event on a screen remains less than the
complete equivalent of actually attending it.” United States v Lawrence, 248 F3d 300, 304 (CA
4, 2001). Alternatively phrased, “In the most important affairs of life, people approach each
other in person, and television is no substitute for direct personal contact. Videotape is still a
picture, not a life . . . .” Stoner v Sowders, 997 F2d 209, 213 (CA 6, 1993).

        Sentencing is more than a rote or mechanical application of numbers to a page. It
involves a careful and thoughtful assessment of “the true moral fiber of another,” Del Piano v
United States, 575 F2d 1066, 1069 (CA 3, 1978), a task made far more complex when the
defendant speaks through a microphone from a remote location. The trial judge who sentenced
Heller never met or sat in the same room with him. In our view, Heller’s absence from the
sentencing nullified the dignity of the proceeding and its participants, rendering it fundamentally
unfair.

       We remand for resentencing at Heller’s option. We do not retain jurisdiction.



                                                               /s/ Cynthia Diane Stephens
                                                               /s/ Jane M. Beckering
                                                               /s/ Elizabeth L. Gleicher




1
  This article offers a thorough and insightful discussion of the unintended, negative effects of
video conferencing in the legal world.


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