Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  May 4, 2018                                                                        Stephen J. Markman,
                                                                                                Chief Justice

  152934 & (45)                                                                            Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                          Kurtis T. Wilder
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Elizabeth T. Clement,
            Plaintiff-Appellee,                                                                      Justices

  v                                                        SC: 152934
                                                           COA: 321806
                                                           Saginaw CC: 13-039031-FC
  ERIC LAMONTEE BECK,
           Defendant-Appellant.

  _____________________________________/

         By order of September 6, 2016, the application for leave to appeal the November
  17, 2015 judgment of the Court of Appeals and the motion to appoint counsel were held
  in abeyance pending the decisions in People v Steanhouse (Docket No. 152849) and
  People v Masroor (Docket Nos. 152946-8). On order of the Court, the cases having been
  decided on July 24, 2017, 500 Mich 453 (2017), the application and motion are again
  considered. The motion to appoint counsel is DENIED as moot. The defendant is
  represented in this Court by attorney Michael Skinner, who filed the application on the
  defendant’s behalf.

           We direct the Clerk to schedule oral argument on whether to grant the application
  or take other action. MCR 7.305(H)(1). The appellant shall file a supplemental brief
  within 42 days of the date of this order, addressing: (1) the appropriate basis for
  distinguishing between permissible trial court consideration of acquitted conduct, see
  People v Ewing (After Remand), 435 Mich 443, 451-452 (1990) (opinion by BRICKLEY,
  J.); id. at 473 (opinion by BOYLE, J.); see also United States v Watts, 519 US 148 (1997),
  and an impermissible “independent finding of defendant’s guilt” by a trial court on an
  acquitted charge, see People v Grimmett, 388 Mich 590, 608 (1972), overruled on other
  grounds by People v White, 390 Mich 245, 258 (1973); see also People v Fortson, 202
  Mich App 13, 21 (1993); and (2) whether the trial court abused its discretion by departing
  from the guidelines range, where the jury acquitted the defendant of murder, but the court
  departed based on its finding by a preponderance of the evidence that the defendant had
  perpetrated the killing. In addition to the brief, the appellant shall electronically file an
  appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must
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provide the appendix page numbers as required by MCR 7.312(B)(1). The appellee shall
file a supplemental brief within 21 days of being served with the appellant’s brief. The
appellee shall also electronically file an appendix, or in the alternative, stipulate to the use
of the appendix filed by the appellant. A reply, if any, must be filed by the appellant
within 14 days of being served with the appellee’s brief. The parties should not submit
mere restatements of their application papers.

      We further direct the Clerk to schedule the oral argument in this case for the
same future session of this Court when it will hear oral argument in People v Dixon-Bey
(Docket No. 156746).

       The Prosecuting Attorneys Association of Michigan and the Criminal Defense
Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups
interested in the determination of the issues presented in this case may move the Court
for permission to file briefs amicus curiae.




                          I, Larry S. Royster, 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.
                          May 4, 2018
        a0501
                                                                              Clerk
