the permissible use of two-way video technology

In People v Shaw, Unpub Per Curiam Opinion of the Court of Appeals (#314865, 8/21/2014) the Court held that the plain language of MCR 6.006(A) indicates that a trial court may not use a video conference to secure a defendant’s appearance when sentencing him for felony offenses rather than misdemeanor offenses.  Unless MCR 6.006(A) specifically allows for the hearing to be conducted via two-way interactive video technology, defendant must expressly agree to appear via video or (s)he has a right to be personally present at the hearing

 

“The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant . . . the right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Tennessee v Lane, 541 US 509, 523; 124 S Ct 1978 (2004) (quotation marks omitted). This right applies to the sentencing hearing, as well as the trial itself. People v Mallory, 421 Mich 229, 247 (1984); People v Palmerton, 200 Mich App 302, 304 (1993). The Michigan Court Rules further provide that a trial court may use two-way interactive video technology to conduct the following proceedings between a courtroom and a prison, jail, or other location: initial arraignments on the warrant or complaint, arraignments on the information, pretrial conferences, pleas, sentencings for misdemeanor offenses, show cause hearings, waivers and adjournments of extradition, referrals for forensic determination of competency, and waivers and adjournments of preliminary examinations. [MCR 6.006(A) (emphasis added).] “[W]e interpret court rules using the same principles that govern the interpretation of statutes.” People v Buie, 491 Mich 294, 304 (2012) (quotation marks omitted).

 

“It is a basic principle of statutory construction that the express mention of one thing implies the exclusion of other similar things.” People v Oswald, 208 Mich App 444, 446 (1995); see also People v Carruthers, 301 Mich App 590, 604 (2013). Thus, the plain language of MCR 6.006(A) indicates that a trial court may not use a video conference to secure a defendant’s appearance when sentencing him for felony offenses rather than misdemeanor offenses. Here, defendant was being sentenced for his felony convictions. MCL 750.224f(5); MCL 750.227b(1). Therefore, absent a defendant’s express agreement to appear via video, see People v Carter, 462 Mich 206, 217-218 (2000) (noting that a party can waive a “broad array of constitutional and statutory provisions”), a trial court must secure the defendant’s physical appearance at sentencing.