6.5​Videoconferencing

The Court has held that a defendant may not be sentenced for a felony by videoconference because felony “[s]entencing by videoconference plainly contravenes MCR 6.006, which identifies the criminal proceedings in which two-way interactive video technology may be used,” and does not include felony sentencing. People v Heller, 316 Mich App 314, 315-321 (2016). However, after the decision in Heller, MCR 6.006 was amended,⁶ and the amended version of MCR 6.006 no longer specifically identifies the criminal proceedings in which two-way interactive video technology may or may not be used. Instead, it identifies proceedings in both circuit and district/municipal court for which videoconferencing technology is the preferred mode, and it presumes in-person appearance of the parties, witnesses, and other participations for all other proceedings while leaving the court discretion to permit videoconferencing. MCR 6.006(B)-(C). The amended rule recognizes a defendant’s right to appear in person and requires in-person proceedings if a defendant makes an in-person demand. MCR 6.005(B)(5). The amended rule does not explicitly address felony sentencing; however, it broadly permits the use of videoconferencing technology, stating “[a] court may, at the request of any participant, or sua sponte, allow the use of videoconferencing technology by any participant in any criminal proceeding.” MCR 6.006(A)(2). It further requires a court to “consider constitutional requirements” in addition to other factors when determining whether to utilize videoconferencing technology. MCR 6.006(A)(3). Accordingly, the Heller Court’s holding based on a previous version of MCR 6.006 is not relevant to the current court rule, and it is unclear whether the Court’s holding broadly prohibiting felony sentencing by videoconferencing technology is still good law.

While the amendments to MCR 6.006 may render the Heller Court’s decision on the basis of the court rule irrelevant, the Heller Court further held that “sentencing is a critical stage of a criminal proceeding at which a defendant has a constitutional right to be present, and virtual appearance is not a suitable substitute for physical presence.” Id. at 315, 318, 321 (citation omitted). Accordingly, the amendments to MCR 6.006 do not affect the Heller Court’s holding to the extent it was premised on a defendant’s constitutional right to be present. However, the holding in Heller does not address a defendant’s ability to waive the right to be physically present for felony sentencing,⁷ and the current version of MCR 6.006 appears to at least permit the use of videoconferencing technology for all sentencing hearings with the consent of the defendant. See MCR 6.006.

Violation of a defendant’s constitutional right to be physically present for felony sentencing is not a structural error. People v Anderson, 341 Mich App 272, 284-286 (2022). Accordingly, in order to obtain relief for an unpreserved error regarding felony sentencing by videoconference, in addition to identifying a plain error, a “defendant must successfully establish that, had he been physically present in the courtroom, there is a reasonable probability that his sentence would have been different.” Id. at 283. If a defendant demonstrates that the error affected their substantial rights, “it must be determined whether reversal is required because the plain, forfeited error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity or public reputation of the judicial proceeding.” Id. at 284 (cleaned up). Defendant was not entitled to relief where there was “no indication on the record that defendant or his counsel either waived his right to appear in person or objected to proceeding by Zoom,” and he did not raise any objections to the sentencing proceedings other than that he was not present in the courtroom; the record showed that “he and his counsel were active participants, and they were able to make any necessary arguments or statements in support of defendant’s position,” defendant was able to allocute, defense counsel addressed inaccuracies in the PSIR, the trial court explained its sentence—which was lower than the sentences requested by the prosecution and recommended by the guidelines—and the trial court “appeared to have no difficulty listening to defendant, and it was familiar with him given that a bench trial had been conducted.” Id. at 283, 287.

A defendant may waive the right to be physically present at sentencing. People v Palmerton, 200 Mich App 302, 303-304 (1993).⁸ “A valid waiver cannot be established from a silent record.” Id. at 303. Accordingly, “[w]here there is nothing on the record explaining the defendant’s failure to appear [at his sentencing hearing], a valid waiver cannot be established.” Id. at 303-304.

For additional information and resources pertaining to remote proceedings, visit the Virtual Courtrooms webpage.⁹