Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  January 15, 2010                                                                        Marilyn Kelly,
                                                                                              Chief Justice

  139201                                                                            Michael F. Cavanagh
                                                                                    Elizabeth A. Weaver
  PEOPLE OF THE STATE OF MICHIGAN,                                                   Maura D. Corrigan
            Plaintiff-Appellee,                                                     Robert P. Young, Jr.
                                                                                    Stephen J. Markman
  v                                                       SC: 139201                Diane M. Hathaway,
                                                          COA: 284241                              Justices
                                                          Lenawee CC: 06-012133-FH
  T.J. LEE ROSE,
              Defendant-Appellant.
  _________________________________________/

        On order of the Court, the application for leave to appeal the May 12, 2009
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

          KELLY, C.J. (dissenting).

         I would grant defendant’s application for leave to appeal. I find many aspects of
  this case troubling. I believe that this Court should reconsider the use of acquitted
  conduct at sentencing and our decision in People v Ewing.1 Moreover, I am concerned
  about how the trial judge used a second charge of second-degree criminal sexual conduct,
  (CSC II), of which defendant was acquitted, in sentencing him.

                                               I. Facts

         Defendant was jury convicted on one count of CSC II, but acquitted of another
  count of CSC II in regard to the victim’s sister. The judge sentenced him at the top of the
  sentencing guidelines range, resulting in a sentence of 86 to 180 months in prison. The
  Court of Appeals affirmed the conviction but remanded for resentencing because it
  concluded that offense variables 7 and 9 had been incorrectly scored. The trial court
  corrected the scoring of the variables, which lowered the guidelines minimum sentence
  range to 12 to 30 months. However, the court again sentenced defendant to 86 to 180
  months, an upward departure from the guidelines range. In its discussion of why it
  believed a departure was warranted, the court noted that it had previously found by a
  preponderance of the evidence that the second act of CSC had occurred. Defendant


  1
      435 Mich 443 (1990).
                                                                                         2

challenged the use of his acquittal on the second CSC II charge as a violation of his Fifth
and Sixth Amendment rights. The Court of Appeals affirmed.

                            II. The Use of Acquitted Conduct Generally

                                          A. Federal Law

       In United States v Watts,2 the United States Supreme Court held that a jury’s
verdict of acquittal does not prevent the sentencing court from considering conduct
underlying the acquitted charge. To qualify for consideration, the conduct need be
proven by only a preponderance of the evidence. Watts involved a challenge to the use of
acquitted conduct under the Double Jeopardy Clause of the Fifth Amendment. Relying
on Watts, every federal circuit that has considered the issue since has concluded that the
use of acquitted conduct at sentencing is constitutional.3

       In United States v White,4 the Sixth Circuit, sitting en banc, divided 9-6 on
whether the use during sentencing of facts underlying an acquittal constitutes a Sixth
Amendment violation. The majority concluded that it does not, under Booker, as long as
the resulting sentence does not exceed “the statutory ceiling set by the jury’s
verdict. . . .”5


2
    519 US 148 (1997) (per curiam).
3
  United States v Magallanez, 408 F3d 672, 684-685 (CA 10, 2005); United States v
Vaughn, 430 F3d 518, 526 (CA 2, 2005); United States v Price, 418 F3d 771, 787-788
(CA 7, 2005); United States v Ashworth, 139 Fed Appx 525, 527 (CA 4, 2005) (per
curiam); United States v Hayward, 177 Fed Appx 214, 215 (CA 3, 2006); United States v
Farias, 469 F3d 393, 399 (CA 5, 2006); United States v Gobbi, 471 F3d 302, 314 (CA 1,
2006). These courts assumed that Watts controls the outcome of both Fifth and Sixth
Amendment challenges to the use of acquitted conduct.
However, in United States v Booker, 543 US 220, 240 & n 4 (2005), the United States
Supreme Court explicitly limited Watts’s reach to the Fifth Amendment double jeopardy
question. Although other courts have recognized that Watts is not controlling on the
Sixth Amendment question, they have nevertheless been influenced by the other courts
that erroneously presumed the contrary. See, e.g., United States v Dorcely, 372 US App
DC 170, 175 (DC, 2006); United States v Mercado, 474 F3d 654, 657 (CA 9, 2007).
Only one federal court of appeals has recognized that Watts has absolutely no bearing on
a Sixth Amendment challenge and has addressed the issue absent any reliance on that
case. United States v Duncan, 400 F3d 1297, 1304-1305 & n 7 (CA 11, 2005).
4
    551 F3d 381 (CA 6, 2008) (en banc).
5
    Id. at 385.
                                                                                          3

       The dissenting opinion in White undertook a very different analysis, examining the
common-law heritage of the use of acquitted conduct. The dissent observed that most
states do not allow the use of acquitted conduct at sentencing.6 Moreover, the dissent
noted that the American Law Institute and American Bar Association have joined the
ranks of those formally opposed to the use of acquitted conduct at sentencing.7

        The White dissent also criticized the majority’s “simple and single-minded
reliance on Watts” as dispositive of a Sixth Amendment claim.8 The dissent
acknowledged that the federal circuits are uniform on this issue. However, it noted that
the Booker line of cases has cast doubt on whether Watts governs Sixth Amendment
challenges to the use of acquitted conduct at sentencing.9 Moreover, increasingly, federal
district and court of appeals judges have questioned whether the use of acquitted conduct
is constitutional under the Sixth Amendment and the Due Process Clause. They have
even questioned whether it is consistent with common sense.10

                                            B. Michigan Law

      In Ewing, four justices of this Court sanctioned the consideration of acquitted
conduct by a sentencing judge when the facts were proven to the judge by a
6
    Id. at 394 (Merritt, J., dissenting).
7
    Id. at 395.
8
    Id. at 392.
9
  The dissent noted that the Booker Court distinguished Watts as irrelevant to the issue of
the use of acquitted conduct generally or under the Sixth Amendment. In Watts, there
was no “contention that the sentence enhancement had exceeded the sentence authorized
by the jury verdict in violation of the Sixth Amendment. The issue . . . simply was not
presented.” White, 551 F3d at 392, quoting Booker, 543 US at 240 (2005).
10
  United States v Canania, 532 F3d 764, 777 (CA 8, 2008) (Bright, J., concurring) (“In
my view, the Constitution forbids judges-Guidelines or no Guidelines-from using
‘acquitted conduct’ to enhance a defendant’s sentence because it violates his or her due
process right to notice and usurps the jury’s Sixth Amendment fact-finding role.”);
United States v Mercado, 474 F3d 654, 658 (CA 9, 2007) (Fletcher, J., dissenting)
(“Reliance on acquitted conduct in sentencing diminishes the jury’s role and dramatically
undermines the protections enshrined in the Sixth Amendment.”); United States v Faust,
456 F3d 1342, 1349 (CA 11, 2006) (Barkett, J., specially concurring) (“I strongly
believe . . . that sentence enhancements based on acquitted conduct are unconstitutional
under the Sixth Amendment, as well as the Due Process Clause of the Fifth
Amendment.”); United States v Pimental, 367 F Supp 2d 143, 153 (D Mass, 2005)
(Gertner, J.) (“To tout the importance of the jury in deciding facts, even traditional
sentencing facts, and then to ignore the fruits of its efforts makes no sense-as a matter of
law or logic.”).
                                                                                          4

preponderance of the evidence.11 The Court further held that a prior acquittal alone is not
a sufficient reason to preclude the judge from taking those facts into account when
sentencing a defendant for another offense.12 In support of this holding, Justice
BRICKLEY’S lead opinion and Justice BOYLE’S opinion (joined by Chief Justice RILEY
and Justice GRIFFIN) noted that “an acquittal does not necessarily mean that the defendant
did not engage in criminal conduct.”13

       Ewing has now lain dormant for almost 20 years,14 despite significant
developments in United States Supreme Court jurisprudence since it was decided. Just as
the federal circuits have questioned the use of acquitted conduct at sentencing, I believe
we should consider the continued vitality of Ewing in light of recent developments.

                                         C. Other States

      It is noteworthy that some state courts consider the use of acquitted conduct at
sentencing to be unconstitutional or an abuse of discretion. These courts cite many of the
same reasons mentioned by the federal judges who have objected to the practice.15 For
example, the New Hampshire Supreme Court concluded:

               We think that the logical and legal inconsistencies associated with
         considering acquittals in enhancing sentencing are readily apparent. . . .
                . . . We think that the presumption of innocence is as much
         ensconced in our due process as the right to counsel, and that a criminal
         defendant in Mr. Cote’s position is entitled to its full benefit. This benefit
         is denied when a sentencing court may have used charges that have resulted
         in acquittals to punish the defendant.



11
   Ewing, 435 Mich at 446 (opinion by BRICKLEY, J.); 435 Mich at 473 (opinion by
BOYLE, J.). Justice ARCHER disagreed with the majority and would have held that
acquitted conduct may not be used at sentencing. 435 Mich at 459 (ARCHER, J.,
concurring in part and dissenting in part). Justice CAVANAGH, joined by Justice LEVIN,
did not address the issue. 435 Mich at 461-462 (CAVANAGH, J., concurring).
12
     Id. at 451 (opinion by BRICKLEY, J.).
13
     Id. at 451-52; see also id. at 473 n 15 (opinion by BOYLE, J.).
14
   We remanded three cases to the Court of Appeals for reconsideration in light of Ewing
in the years after the decision was released. Other than that, Ewing has not been cited by
this Court once since its release.
15
   State v Marley, 321 NC 415, 423-425 (1988); Bishop v State, 268 Ga 286, 295 (1997),
citing Jefferson v State, 256 Ga 821, 827 (1987); see n 10 supra.
                                                                                         5

               We think it disingenuous at best to uphold the presumption of
         innocence until proven guilty, a principle that is “axiomatic and elementary,
         and [whose] enforcement lies at the foundation of the administration of our
         criminal law,” while at the same time punishing a defendant based upon
         charges in which that presumption has not been overcome. The
         presumption is not a presumption of “not guilty” or guilty only by a
         preponderance. It is a presumption of innocence, and innocence means
         “absence of guilt.” BLACK’S LAW DICTIONARY 708. (Emphasis
         added.)[16]
      These concerns are similar to those expressed by Justice ARCHER in his
concurrence/dissent in Ewing:

                 Once the cloud of suspicion has been removed from a defendant as
         to a particular charge, the facts or circumstances surrounding such removal
         should not come before a subsequent sentencing trial court. In my view,
         there is no viable justification in support of inviting a defendant to engage
         in any kind of discussion or exchange concerning a prior exoneration of
         guilt. This expanded version of sentencing allocution, which, according to
         Justice Boyle, would require an additional and clearly belated rehashing of
         a matter which has been definitively resolved and disposed of, will not
         remove, or, in any way, diminish the eminent danger of precondemnation
         that would befall a defendant if this practice were allowed. The resurrection
         of a favorably resolved past accusation for the purpose of merely
         contemplating its existence would serve only to unfairly and unnecessarily
         prejudice a defendant with the probability of improperly drawn inferences
         of wrongful conduct.[17]
       In sum, I would grant leave to appeal to revisit the use of acquitted conduct at
sentencing as a general matter. I would do so to consider developments in constitutional
jurisprudence since Ewing, the widespread criticism of the practice,18 and the split among
state courts on the issue.

16
     State v Cote, 129 NH 358, 375 (1987) (citation omitted).
17
     Ewing, 435 Mich at 458-459.
18
   See, e.g., Ngov, Judicial nullification of juries: The use of acquitted conduct at
sentencing, 76 Tenn L R 235, 261 (2009) (“A paradox is thus presented. Apprendi [v
New Jersey, 530 US 466 (2000)] and its progeny, including Booker, have elevated the
role of the jury verdict by circumscribing a defendant’s sentence to the relevant statutory
maximum authorized by a jury; yet, the jury’s verdict is not heeded when it specifically
withholds authorization. Stated differently, the jury is essentially ignored when it
disagrees with the prosecution. This outcome is nonsensical and in contravention of the
thrust of recent Supreme Court jurisprudence.”).
                                                                                         6

                         III. The Use of Defendant’s Acquittal in This Case

       In People v Grimmett, this Court concluded that a sentencing judge may not make
an “independent finding of defendant’s guilt” on another charge.19 Ewing and later Court
of Appeals cases, on the other hand, have allowed sentencing judges to impose sentences
using conduct underlying acquitted charges.20 The dividing line between these two
considerations is unclear, as the Ewing Court noted.21

       Here, defendant was acquitted of the second CSC charge, yet the trial judge
concluded by a preponderance of the evidence that defendant committed that CSC.
Given the trial judge’s language, it appears the sentencing departure here was based on an
independent finding of guilt, not acquitted conduct. At the resentencing hearing, the
judge stated “[t]he court made a finding previously that the second sexual act that [sic]
actually occurred and the court found that by a preponderance of the evidence.”22

      Also of particular significance to this case is the limiting language in Justice
BRICKLEY’S Ewing opinion. Justice BRICKLEY provided the crucial fourth vote in favor
of allowing acquitted conduct to be used in sentencing.                 He explained

19
 People v Grimmett, 388 Mich 590, 608 (1972), overruled on other grounds by People v
White, 390 Mich 245 (1973), see also People v Fleming, 428 Mich 408, 417-418 (1987).
20
     People v Compagnari, 233 Mich App 233, 236 (1998).
21
    Ewing, 435 Mich at 471-472 (opinion by BOYLE, J.) (noting that “[t]he difficulty in
drawing a distinction between People v Lee [391 Mich 618 (1974)] [the trial court may
“notice the existence of pending charges”] and Grimmett [the trial court may not “use
unsupported assumption of guilt of other crimes as a factor” at sentencing] has created a
lack of consistency in the Court of Appeals decisions on this issue. . . . The confusion in
the lower courts regarding whether and under what circumstances a court may consider
other criminal activity of a defendant which has not resulted in a conviction or charge
necessitates some action by this Court to clarify the rule. We would clarify Grimmett and
hold, in line with the majority of jurisdictions, that any circumstance which aids the
sentencing court’s construction of a more complete and accurate picture of a defendant’s
background, history, or behavior is properly considered in individualizing the sentence
. . . .”).

However, because Justice BOYLE’s opinion in Ewing garnered only three votes, this
confusion was not dispelled by Ewing’s release.
22
  Transcript from the March 18, 2008 sentencing hearing. The previous finding the court
referred to was from defendant’s original sentencing, when the court stated “[t]he court
finds by a preponderance of the evidence that he [defendant] did commit the offense.”
Transcript from the October 19, 2006 sentencing hearing.
                                                                                                                7

that, in the context of prior acquittals, the defendant must be afforded the opportunity to
“test the accuracy” of the underlying facts of that acquittal when they are considered
during sentencing.23

       Considering the record here, there is no indication that the judge allowed the
defendant to “test the accuracy” of the facts underlying the acquitted conduct used to
enhance his sentence, as Ewing requires. The fact that defendant did get a chance to “test
the accuracy” of this finding during the trial on the additional CSC II count is insufficient
to give meaning to the holding in Ewing. He had tested the accuracy of those facts and
succeeded; the jury, by acquitting him of that count, determined that he did not commit
the offense. When a judge then finds by a preponderance of the evidence that the
defendant did commit the crime, how is the defendant to again “test the accuracy” of
those facts? Is the defendant supposed to make his argument at sentencing? Should an
evidentiary hearing be held? Is the defendant not then required to defend against the
charge twice?

       These inconsistencies, coupled with the blurred line between what Ewing allows
and what Grimmett prohibits, illuminate the problems inherent in using facts underlying
acquitted conduct at sentencing. Particularly, this practice exposes the difficulty a
defendant faces in testing the accuracy of these facts.

                                                 IV. Conclusion

       For these reasons, I think this case raises several jurisprudentially significant
issues. I would grant defendant’s application for leave to appeal.




23
     Ewing, 435 Mich at 454.



                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          January 15, 2010                    _________________________________________
         p0112                                                                Clerk
