              If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                   revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    August 20, 2020
                Plaintiff-Appellee,                                 9:10 a.m.

v                                                                   No. 348471; 348472
                                                                    Wayne Circuit Court
CHRISTOPHER WAYNE STOKES,                                           LC No. 13-007518-01-FC;
                                                                    13-007545-01-FC
                Defendant-Appellant.


Before: REDFORD, P.J., and METER and O’BRIEN, JJ.

REDFORD, P.J.

       In Docket No. 348471, a jury convicted defendant, Christopher Wayne Stokes, on
February 11, 2014, of carjacking, MCL 750.529a(1), and armed robbery, MCL 750.529. The trial
court sentenced defendant, as a second-offense habitual offender, MCL 769.10, on March 20,
2014, to concurrent terms of 18 to 30 years’ imprisonment for each conviction. Defendant
appealed his convictions and sentences. People v Stokes, 312 Mich App 181; 877 NW2d 752
(2015), vacated in part 501 Mich 918 (2017). This Court affirmed his convictions but remanded
and ordered the trial court to follow the Crosby1 procedure. On remand the trial court resentenced
defendant to 18 to 30 years’ imprisonment for each conviction. Defendant now appeals as of right.
We affirm.

       In Docket No. 348472, a jury convicted defendant on October 20, 2014, of carjacking and
armed robbery. The trial court sentenced defendant on November 17, 2014, as a second-offense
habitual offender, to concurrent terms of 20 to 30 years’ imprisonment for each conviction.
Defendant appealed his convictions and sentences. People v Stokes, unpublished per curiam
opinion of the Court of Appeals, issued March 15, 2016 (Docket No. 325197). This Court
remanded and ordered the trial court to follow the Crosby procedure, and on remand the trial court
sentenced defendant to concurrent terms of 20 to 30 years’ imprisonment for each conviction.
Defendant now appeals as of right. We affirm.



1
    United States v Crosby, 397 F3d 103 (CA 2, 2005).


                                                -1-
                                        I. BACKGROUND

        The trial court granted defendant resentencing in both cases and held a combined
resentencing hearing on March 15, 2019. The trial court noted that, in addition to listening to
counsel and defendant at the hearing, it had reviewed the new presentence investigation reports
(PSIR) and the opinions from this Court. Finding no error in its previous assessment of the factors
under the advisory sentencing guidelines, and not being persuaded by defense counsel that changes
were warranted to defendant’s previous sentences, the trial court resentenced defendant to the same
sentences it imposed at defendant’s original sentencing hearings.

                                          II. ANALYSIS

        In both appeals, defendant argues that he is entitled to resentencing on the ground that the
trial court violated his due-process rights by considering acquitted conduct in determining his
sentences. We disagree.

        Defendant failed to preserve this issue in the trial court. “This Court reviews unpreserved
issues alleging constitutional error for plain error affecting a defendant’s substantial rights.”
People v Heft, 299 Mich App 69, 78; 829 NW2d 266 (2012). “To avoid forfeiture under the plain
error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e.,
clear or obvious, 3) and the plain error affected substantial rights.” People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999). “The third requirement generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id. “Reversal
is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings independent of the defendant’s innocence.” Id. at 763-764 (quotation marks
and citation omitted).

        In People v Beck, 504 Mich 605, 629; 939 NW2d 213 (2019), our Supreme Court held
“that due process bars sentencing courts from finding by a preponderance of the evidence that a
defendant engaged in conduct of which he was acquitted.” In other words, “Once acquitted of a
given crime, it violates due process to sentence the defendant as if he committed that very same
crime.” Id. at 609. Our Supreme Court remanded for resentencing in Beck “[b]ecause the trial
court in [that] case relied at least in part on acquitted conduct when imposing sentence for the
defendant’s conviction . . . .” Id. at 609-610.

        In People v Roberts (On Remand), ___ Mich App ___; ___ NW2d ___ (2020) (Docket No.
339424), this Court recently explained the scope of application of the principle articulated in Beck.
The defendant and his friend were in a nightclub when someone shot a patron and they and other
patrons fled outside where the defendant passed a gun to his friend as they advanced toward a
group of people. The defendant’s friend fired shots and passed the gun back to the defendant and
the two of them fled the scene. The police pursued them and an officer saw the defendant dispose
of the gun which the police later retrieved. The jury convicted the defendant of being a felon in
possession of a firearm and of possession of a firearm during the commission of a felony but
acquitted him of assault with intent to murder under an aiding and abetting theory. The sentencing
court considered the background facts of the incident for its Offense Variable scoring under the
advisory sentencing guidelines and imposed an upward departure sentence. The defendant argued


                                                 -2-
on appeal that the sentencing court violated the principle articulated in Beck by considering facts
unrelated to the offenses of which the jury convicted him entitling him. Roberts, ___ Mich App
at ___; slip op at 2-4,6. This Court disagreed and explained:

               It has long been understood that failure to persuade a jury beyond a
       reasonable doubt is not conclusive as to proofs under the less stringent
       preponderance of the evidence standard. Stone v United States, 167 US 178, 188-
       189; 167 S Ct 778; 42 L Ed 127 (1897); Martucci v Detroit Comm’r of Police, 322
       Mich 270, 273-274; 33 NW2d 789 (1948). Nevertheless, our Supreme Court has
       recently taught us that sentencing courts may not consider any “acquitted conduct”
       in crafting their sentences, although they remain free to consider “uncharged
       conduct.” Beck, 504 Mich at 626–627. “Acquitted conduct” means any
       “conduct . . . underlying charges of which [the defendant] had been acquitted.”
       United States v Watts, 519 US 148, 149; 117 S Ct 633; 136 L Ed 2d 554 (1997),
       cited by Beck, 504 Mich at 609 n 1. We infer from this broad definition that under
       Beck, a sentencing court must consider a defendant as having undertaken no act or
       omission that a jury could have relied upon in finding the essential elements of any
       acquitted offense proved beyond a reasonable doubt. Nevertheless, as we will
       discuss in more detail below, Beck expressly permits trial courts to consider
       uncharged conduct and any other circumstances or context surrounding the
       defendant or the sentencing offense. [Id. at ___; slip op at 4-5.]

                                              * * *

               The trial court explicitly declined to hold defendant responsible for “what
       happened in the night club,” implicitly meaning the trial court did not consider any
       victims placed in danger by the shooting of which defendant was acquitted.
       Nevertheless, we agree with the trial court that a substantial and qualitative
       difference exists between possessing contraband in one’s own home, and
       unlawfully possessing and passing around a concealed firearm in a crowded bar
       during a shooting. Nothing in Beck precludes a sentencing court from generally
       considering the time, place, and manner in which an offense is committed. We
       conclude that Beck does not exclude from consideration the contextual fact that the
       acquitted conduct was committed by someone, so long as that conduct is not
       actually attributed to the defendant. Irrespective of whether defendant participated
       in the shooting, the context within which he committed the offense of felon-in-
       possession intrinsically placed people in grave danger. We therefore reiterate our
       previous conclusion that the trial court was justified in finding that defendant’s
       actions placed at least 10 victims in danger of physical injury or death. The trial
       court therefore did not err in assigning 25 points under OV 9. [Id. at ___; slip op
       at 5.]

       This Court explained further:

               As discussed, the definition of “acquitted conduct” covers a broad range of
       conduct. Nevertheless, we do not understand Beck to preclude all consideration of
       the entire res gestae of an acquitted offense. . . . We conclude that even under Beck,


                                                -3-
       a sentencing court may consider, for example, the fact that a felon on probation
       bringing a concealed gun into a crowded nightclub demonstrates—at a minimum—
       an appallingly reckless disregard for the predictable outcome. Defendant may not
       be deemed to have provided a weapon for the purpose of shooting it into a crowd,
       nor can defendant be deemed to have “allowed” the shooting. Nevertheless,
       defendant can certainly be deemed to have knowingly acted in a manner that
       drastically increased the likelihood that such a tragedy, whether or not this
       particular tragedy, would occur. As discussed above, the trial court appropriately
       observed that it is “one thing” to illegally possess a gun in one’s own home, but
       quite another to introduce an illegally possessed and concealed gun into an
       environment that was already chaotic and unstable. [Id. at ___; slip op at 6-7.]

         This case significantly differs from Beck and Roberts; nevertheless, defendant argues that
the trial court violated the principle articulated in Beck because it reviewed the PSIRs in each case
which contained information about acquitted conduct. Defendant further argues that “[t]he
practice of including information on acquitted charges in the presentence report should stop, as it
violates [d]ue [p]rocess for a sentencing judge to consider it.” We disagree.

        As explained in Beck, a sentencing court may not rely even in part on acquitted conduct
when imposing a sentence for the defendant’s conviction. In Roberts this Court clarified that
sentencing courts do not violate that principle by considering the entire res gestae of an acquitted
offense and Beck does not preclude a sentencing court from generally considering the time, place,
and manner in which an offense of which a defendant has been convicted is committed. Neither
Beck nor Roberts addressed whether the mere inclusion of a reference to a jury’s acquittal of
charged offenses in a different, separate case in the defendant’s criminal history reported in a PSIR
violates the principle articulated in Beck.

        In these cases, defendant’s lengthy criminal history reported in the PSIRs’ adult criminal
history sections, prepared by the Department of Corrections (DOC), that defendant had been
arrested on July 24, 2013, and charged with carjacking and firearm offenses but a jury found him
not guilty of the charges. Further, the PSIRs adjustment to parole sections similarly stated that,
while on parole, defendant had been alleged of a carjacking and firearm offenses but in one case
the jury found him not guilty of the charged offenses. The contents of the PSIRs were reviewed
by the sentencing court in preparation for defendant’s resentencing hearing. No evidence in the
record, however, establishes that the trial court relied on acquitted conduct when resentencing
defendant. The trial court did not reference any acquitted conduct during the resentencing hearing
or even intimate that such conduct influenced its sentencing decisions.

        We hold that a sentencing court may review a PSIR containing information on acquitted
conduct without violating Beck so long as the court does not rely on the acquitted conduct when
sentencing the defendant. Beck supports this conclusion. In Beck, our Supreme Court remanded
for resentencing because the sentencing court unquestionably “relied” on acquitted conduct for its
sentencing decision. A sentencing court that reviews a PSIR that merely contains information
about acquitted conduct, however, does not necessarily rely on such information when sentencing
a defendant. There must be some evidence in the record that the sentencing court relied on such
information to warrant finding a Beck violation. Had the sentencing court specifically referenced
acquitted offenses as part of its sentencing rationale, a Beck violation would be apparent. But


                                                -4-
when PSIRs prepared by the DOC merely reference an acquittal by a jury of offenses in a separate
and different case, and the sentencing court makes no reference to or expressly relies upon such
acquitted offenses as part of its sentencing rationale, this Court cannot conclude that the sentencing
court committed a Beck violation because such a conclusion would rest on speculation that
acquitted conduct influenced the sentencing court’s decision.

        In the absence of evidence presented by the defendant demonstrating that a sentencing
court actually relied on acquitted conduct when sentencing a defendant, the defendant is not
entitled to resentencing. Because no evidence in the record in these cases establishes that the
sentencing court relied on acquitted conduct referenced in the PSIRs when sentencing defendant,
defendant has failed to establish his claims of error. Defendant has failed to establish the existence
of any plain error that affected defendant’s substantial rights and determined the outcome of the
proceedings.

       Affirmed.

                                                              /s/ James Robert Redford
                                                              /s/ Patrick M. Meter
                                                              /s/ Colleen A. O’Brien




                                                 -5-
