               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PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      January 28, 2020
                 Plaintiff-Appellee,

v                                                                     No. 331302
                                                                      Genesee Circuit Court
ANDREW FARLEY, JR.,                                                   LC No. 15-037130-FC

                 Defendant-Appellant.


                                            ON REMAND

Before: MARKEY, P.J., and METER and SHAPIRO, JJ.

PER CURIAM.

       This matter returns to this Court on remand from the Supreme Court for reconsideration
of defendant’s sentencing challenge in light of People v Beck, 504 Mich ___; ___ NW2d ___
(2019) (Docket No. 152934). For the reasons stated in this opinion, we vacate defendant’s
sentence for second-degree murder and remand for resentencing.

         Defendant was charged with open murder for killing his wife. The evidence established
that the couple had been experiencing marital difficulties and that the wife had a sexual
relationship with a coworker. According to defendant, in the time immediately preceding the
killing, his wife told him that he “disgusted her,” that he was “not a man,” that he could not have
a baby with her,1 and that she no longer wanted to be with him. Defendant testified that his wife
also said that she was going to get the coworker with whom she had an affair, bring him back to
the house, have sex with him in front of defendant, and have his baby. Defendant then struck his
wife with a flashlight and stabbed her six times with a knife.

       The prosecution sought a conviction for first-degree murder, MCL 750.316, arguing that
the evidence established beyond a reasonable doubt that the killing was deliberate and


1
    Defendant had had a vasectomy after fathering three children in his first marriage.



                                                  -1-
premediated. The defense requested that the jury find defendant guilty of voluntary
manslaughter, MCL 750.321, because he acted out of anger and was adequately provoked. The
jury found defendant guilty of second-degree murder, MCL 750.317.

       Defendant’s recommended minimum-sentence guidelines range was 162 to 270 months’
imprisonment. The trial court departed from that recommendation and imposed a minimum
sentence of 600 months’ imprisonment. In justifying the substantial departure sentence, the trial
judge emphasized that he disagreed with the jury’s verdict and that he believed the evidence
demonstrated that defendant was guilty of premeditated first-degree murder:

                 When I listen[ed] to the testimony at the trial it was clear to me from the,
         ah, journal that was introduced as well as other testimony that you had been
         plotting her death for some time. . . . What the evidence showed to the Court was
         that you had cat—had categorized through a diary what you were gonna do to
         you. You had made up your mind long before you killed her that you were gonna
         kill her; and probably take your own life in the process. Um, you stated in your
         diary the method in which you were going to go about killing her; ah, you stated
         the reasons why you were gonna kill her. And most of these reasons had to do it
         appeared to this Court with your pride; your pride was hurt because, ah, possibly
         she may have found involvement with another man. . . . And so you continued
         with your plan to, ah, to cause her death.

                                               * * *

                 So the evidence showed to me a very cold, self[-]centered, um, prideful
         individual who had made up his mind he was gonna kill his wife and use his
         writings to cover it up, and hopefully come out with a result that would be
         substantially less than what he deserved. Ah, you were seeking Manslaughter in
         this case; the Jury compromised, its Second Degree Murder. I agree with [the
         prosecutor]; I think she clearly, ah, presented a case of First Degree Murder in
         this case. There is no question in this Court’s mind from the evidence that this
         was a premeditated and deliberate act on your part. You had premeditated and
         deliberated, you had planned and schemed, and you had put your plan into
         action.

                                               * * *

                 When I look at the guidelines, and they don’t apply they’re advisory, ah,
         because of People versus Lockridge[2]. . . . But the Court thinks not only does it
         have the right to exceed the guidelines in this case because of your offense score,
         but the Court has the right to exceed the guidelines because it is clear to this
         Court that you had plotted and planned the murder of, ah, Ms. Farley. [Emphasis
         added.]


2
    People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).



                                                 -2-
       On appeal to this Court, defendant challenged the reasonableness of his sentence. He
argued that the trial court erred in basing its departure sentence on its finding that the murder was
premediated when the jury acquitted him of first-degree murder. This Court rejected defendant’s
argument and affirmed his sentence in a 2-to-1 decision. People v Farley, unpublished per
curiam opinion of the Court of Appeals, issued October 31, 2017 (Docket No. 331302).

        Defendant then sought leave to appeal to the Supreme Court. While the case was
pending there, that Court decided Beck, 504 Mich at ___; slip op at 2; which held that a
defendant acquitted of a given crime may not be sentenced as if he committed that very same
crime. After the Beck decision, the Supreme Court vacated our opinion in this case and directed
us to reconsider the matter in light of Beck. People v Farley, ___ Mich ___ (2019) (Docket No.
156843). Having done so, we conclude that resentencing is required.

       This case is very similar to Beck. In that case, the jury acquitted the defendant of open
murder but convicted him of felon in possession of a firearm and of felony-firearm, second
offense. The sentencing judge imposed a departure sentence, in part, in reliance on his finding
by a preponderance of the evidence that the defendant had committed the murder of which the
jury had acquitted him. Id. at ___; slip op at 3. The Supreme Court held that the sentencing
judge erred in relying on acquitted conduct in sentencing defendant, stating:

       When a jury has made no findings (as with uncharged conduct, for example), no
       constitutional impediment prevents a sentencing court from punishing the
       defendant as if he engaged in that conduct using a preponderance-of-the-evidence
       standard. But when a jury has specifically determined that the prosecution has not
       proven beyond a reasonable doubt that a defendant engaged in certain conduct,
       the defendant continues to be presumed innocent. “To allow the trial court to use
       at sentencing an essential element of a greater offense as an aggravating factor,
       when the presumption of innocence was not, at trial, overcome as to this element,
       is fundamentally inconsistent with the presumption of innocence itself.” [Id. at
       ___; slip op at 18-19 (citation omitted).]

 In applying this principle, the Court held that Beck must be resentenced because the sentencing
judge had “punished the defendant more severely on the basis of [his] finding by a
preponderance of the evidence that the defendant committed the murder of which the jury had
acquitted him” and therefore violated Beck’s right to due process. Id. at ___; slip op at 21.

        As in Beck, defendant was sentenced based in part on acquitted conduct.3 The jury
acquitted defendant of first-degree murder and convicted him of second-degree murder. In so
doing, the jury concluded that the prosecutor failed to prove beyond a reasonable doubt that
defendant murdered his wife as a result of premeditation and deliberation.4 However, the


3
  “Acquitted conduct” is conduct that “has been formally charged and specifically adjudicated by
a jury.” Beck, 504 Mich at ___; slip op at 13.
4
  The elements of first-degree murder are (1) the intentional killing of a human being (2) with
premeditation and deliberation. People v Oros, 502 Mich 229, 240; 917 NW2d 559 (2018). It



                                                 -3-
sentencing judge then engaged in judicial fact-finding and enhanced defendant’s sentence, in
part, on the basis of his finding that defendant premeditated and deliberated the murder of his
wife. By revisiting the question whether defendant killed the victim with premeditation and
deliberation and answering that question in a manner contrary to the jury verdict, the judge relied
on acquitted conduct in fashioning defendant’s sentence and to justify the departure sentence.
Accordingly, the imposed sentence violated defendant’s due-process protections and he is
entitled to resentencing. Id. at ___; slip op at 22.

        Vacated and remanded for resentencing in accordance with this opinion. We do not
retain jurisdiction.



                                                            /s/ Jane E. Markey
                                                            /s/ Patrick M. Meter
                                                            /s/ Douglas B. Shapiro




was undisputed that defendant killed his wife, so in acquitting defendant of first-degree murder,
the jury necessarily found that the prosecution did not prove beyond a reasonable doubt that
defendant acted with premeditation and deliberation.



                                                -4-
