*1 People Ewing REMAND) (AFTER v EWING PEOPLE (Calendar 4). Argued Decided June No. Docket No. 84137. Rehearing August 14, 1990. post, 1243. denied jury by convicted in the Jackson Circuit C. was a John Court, Fleming, J., first-degree sexual G. criminal James conduct, court, concluding the had that defendant and the acts, imprison- engaged prior him sentenced to .life in similar P.J., Appeals, Jr., Mahek, Holbrook, and ment. The Court R, JJ., unpublished opinion Stemjpien, M. affirmed an and 86296). (Docket Supreme per No. The Court remanded curiam Appeals the trial Of to consider whether the case to the Court prior regarding acts defendant’s similar court’s the conclusion (1972). remand, Grimmett, violated 388 Mich On Maher, P.J., Appeals, Holbrook, Jr., and and the Court of JJ., the case vacated sentence and remanded Mackenzie, the curiam, per unpublished opinion resentencing in an con- for i.e., sentence, finding cluding the the the basis involving attacks on of conduct defendant had carried course period young years, violated Grimmett. on over of five women panel opinion rehearing, in an the clarified its earlier On curiam, noting unpublished per opinion statement prior regarding course of conduct constituted the defendant’s court, finding charges independent not an on before prior not acts at was and that consideration of the they proven preponderance proper had not because been 104146). (Docket people appeal. No. of the evidence opinions Archer, Justice and Justice Brickley, Justice Supreme joined by Justice Levin, Court held: Cavanagh, to trial court an indication The case is remanded upon imposing relied sentence. which facts were Brickley sentencing judge be should not Justice stated that a basing underlying precluded facts from sentence convictions, charges, uncharged pending offenses where through testimony pre- developed sworn been those facts have judge. an must be afforded The defendant sented before facts, opportunity test the of those however. not reveal the extent in this case record does Because upon alleged relied conduct which the convicted, the case should for which he had been 435 Mich to the trial court with remanded instructions court conduct, convictions, explain specifically played a role the determination of defendant’s sentence. Thereafter, given opportunity defendant should be an *2 challenge accuracy allegations regarding the of the criminal upon acts for which no conviction had been obtained and which original allega- accuracy the sentence was based. If the of the evidence, proven by preponderance tions is not a of the the original sentence should be vacated the and defendant resen- tenced. may Justice Archer stated that while a trial court consider pending charges sentencing the existence of in a defendant for offense, wholly separate a a there is fine line between consider- pending charges independent ation of and the formation of assumptions guilt. Although of a trial court’s broad considera- sentencing everything pending charges tion at can include from convictions, prior to it should not include consideration of respect evidence introduced at trial with to crimes of which the acquitted. favorably defendant has been The resurrection of a past purpose merely contemplat- resolved accusation for the of ing only unfairly unnecessarily its existence would serve to and prejudice probability improperly a defendant with the drawn wrongful inferences of conduct. Irrespective judge may apprised of the fact that a trial be prior acquittal through presentence report a defendant’s a or in court, difference, open inconsequen- there is a no matter how tial, passive knowledge between of a fact and its active consid- may eration. While there not be a formal limit on what can be presentence report, contained in a there are limitations dic- process. invasively tated due Fundamental fairness must presentence dominate at least how the information can be judicially utilized. pending charges In the event that a trial court considers in sentence, imposing properly permitted a defendant should be to cheillenge accuracy However, reuse a to the of the information. goes beyond where a trial court mere consideration of the pending charges independent finding guilt to formulate an respect charges, challenge accuracy with to the way equates challenge information in no the with circum- charge. stantial or innocence associated a joined by Cavanagh, Justice Levin, Justice concurred in the Brickley result reached Justice and Justice Archer. joined by Boyle, Justice Chief Justice Riley, and Justice may range Griffin, stated that a trial court consider a wide sentencing, including pending charges, at factors evidence of acquit- subsequently acquittals, result in and information it relies must satisfied the tals. The court be drawing is the sentence rests the inference on in accurate, opportu- have an the defendant must and and reliable adequately challenge If nity information. prepon- challenged, must be the information established derance of evidence. given punishment offender in an convicted the discretion of the scheme within indeterminate imposed by court, subject only limitations generally do not The statutes statutes and constitution. purport of matters a court consider to limit kinds sentence, clearly imposing limits the while the constitution sentencing, clearly it also of trial courts considerations matters, including range wide allows consideration of a participation has conduct of which criminal Any circumstance which aids sentenc- been convicted. pic- ing complete and accurate construction of a more court’s background, history, prop- or behavior is ture of a defendant’s individualizing erly to fit the of- the sentence considered merely the crime. An individualized sentence fender and not *3 premised of crime on the facts and circumstances the must be itself, background person of well as the the convicted as prior prosecution committing A which does not the crime. conviction, activity for the well as result in a as criminal prosecuted, has not been nevertheless reflect defendant proper wrongful a at sentenc- conduct that can be consideration given ing, provided or the is a chance rebut defendant trial, proceeding, explain. plea or the record of the the Where report sentencing supporting a sentenc- the contains evidence ing factor, deciding the trial must discretion in court exercise proofs. whether to entertain further provides must be based on infer- Grimmett that sentence the from accurate information and when ences drawn disputed of an is an unverified offense commission offense case, upon sentencing. activity at In this the cannot be relied the which the trial court concluded that evidence on involving young engaged in a conduct attacks on had course of sentencing period years five factors women over a concerned addition, supported proper factors were under Grimmett. the evidence, preponderance the and the defendant was challenge given adequate opportunity the accuracy of the information. Attorney General, J. Louis Kelley, Frank J. 435 Mich J. Brickley, Joseph Filip, General, Caruso, S. Prose- Solicitor cuting Attorney, Schrotenboer, Chief and Jerrold Appellate Attorney, people. for the Appellate (by Robert- Defender Sheila N. State son) for the defendant.
AFTER REMAND agree entirely am unable to Brickley, I opinions analysis adopted in of either the Justice trial only the I that the Boyle or Justice Archer. believe judge entitled to base his sentence was prior conviction, but on the defendant’s also concerning testimony underlying on facts of pending charge, conviction, and an uncharged defendant, however, offense. was right accuracy these denied his to test allegations regarding his conduct. opinion my reason,
For it is this case this remand, the trial should be remanded to the specificity court. On greater judge should indicate with imposing which facts he relied on judge If he on sentence. allegations against determines that relied
the defendant which did not conviction, in a then defendant must be result opportunity challenge accuracy afforded an allegations. judge If the then determines those facts has not been of those preponderance evidence, determined the defendant should be resentenced. resentencing
Finally, if a ordered, entitled will be containing rely testimony underlying to an facts acquittal original which was obtained after the *4 subject case, to this the defendant’s right dispute testimony. to of that
i Ewing by jury Defendant was convicted People Ewing v Brickley, opinion first-degree The conduct. sexual criminal testimony accurately summarizes reversal for given hearing, pretrial at Golochowicz1 trial and at appellate history of this as the as well J.). pp Post, 463-468 (Boyle, case. defendant, addition, at the I In observe sentencing, pled contendere to had nolo time the charge first-degree conduct criminal sexual Following involving complainant 1. his convic- No. case, was in this the defendant and sentence tion arising acquitted sex- from the violent alleged complainant 3. He No. was ual assault never alleged complain- charged with the crime judge the Golochowicz No. ant hearing "simple as a assault.” described urged hearing, prosecutor At the impose depart guidelines and to from the the court only prosecutor lengthy very The sentence. involving emphasized the defendant’s convictions complainant 1 and in the No. 1979 assault on rely present case, the court also insisted but allegations against which had the defendant on in convictions. not resulted argued prosecutor vehemently that a sen- assumptions
tencing judge
to make
be able
should
separate
of
the
criminal
a defendant’s
about
urged
charges,
to
trial
and he
something
guts
more to look
. . . the
to do
"have
particular
beyond
case
of this
substance
just
it
the record.”2
form of
objected
record,
on the
The defendant
(1982).
Golochowicz,
298;
People
he wants to Michigan going get .... one sentence and he is *5 Mich 443 Opinion Brickley, J. imposition of sentence, consideration to the of resulting charged any not offense or arrests conviction imposing sen as evidence respond the defendant’s to did The trial court tence. obje ction. prosecutor hearing defense from the After explained to its decision counsel, the trial court range guidelines’ depart recommended from the imposing twenty sentence, years. a life to ten the trial judge stated, inter alia: process a Golochowicz part of this overall As a vividly I had to very Hearing was held claimed testimony of other victims who hear I or form. had in some manner you assaulted them to ruling determination relative to make trial. testimony in this admissibility of similar on a course you have carried It’s obvious to me young women over involving attacks on of conduct years. periods of five [sic] II produced judge’s the witnesses to The references hearing and to a "course Golochowicz at the conduct” particular clearly identify acts of do not my defendant, mind, neither the To the defendant. particu- in this here that testified There was another victim that have or three other ones lar Court. There is identified we have two [sic] that charged Ewing they So have not been with. Mr. instances, Michigan five, six, and the seven different Ewing says Supreme once and do it in Court sentence John [complainant 4]; County No. don’t and to hell with Washtenaw disgusting County. anything I think that’s a in Jackson do urge Michigan Supreme position And I the Court Court? for the [Emphasis particular situation. added.] not to fall into that observes, true, opinion that the defendant for reversal It is as allegations underlying accuracy specifically did not such in contest however, allegations— charges. objection, these use of His Grimmett, reading opinion n 2 my at that time of a reasonable challenge right preserve supra his sufficient —is upon any allegations relied. which the Brickley, judge judge suggested by trial nor the Justice Boyle, as ambiguity. solely this for to blame impos- obligation reasons articulate has an ing respond chal- and to to defense a sentence using lenges propriety informa- certain duty defendant, hand, has a on the other tion. The *6 accuracy should, as a of to raise matters rulings findings request course, or from matter of necessary. judge Here, the defendant when the judge’s clearly objected alleged of consideration did not result in con- which criminal acts explanation ruling victions, he no or objection. but received response judge in to It is from the the testimony judge the considered the clear that However, it is not clear acts the similar witnesses. presented allegations at the Golochowicz which hearing these circum- considered. Under were stances, to the trial this case should be remanded development the court for further explain First, record. the trial court should with greater specificity convictions, conduct, or which determining played the a role in defen- done, is dant’s After this sentence. opportunity challenge given an
should be accuracy allegations regarding criminal of those no has obtained and acts conviction been original upon based. If the which the sentence was allega- judge determines that preponderance proven tions has been original evidence, the should be va- sentence cated and the defendant resentenced.
hi If, remand, trial determines not end in conviction contributed acts which did sentencing decision, the defendant should be his permitted right the accu-
to exercise his to contest 435 Mich Brickley, in accordance with the allegations of those racy Standards. American Bar Association People Walker, 261; Mich NW2d (1987), procedures gov- this Court set forth about disputes ern the resolution proper scoring guidelines Specifi- variables. 18-6.4(c) adopted we Standard of the Ameri- cally, Standards for Criminal Jus- can Bar Association supra, Walker, pp Paragraph tice. 267-268. c of requires prosecutor prove this standard of the evi- disputed preponderance variable dence once the defendant has chal- "effectively” Id. It lenged its is consistent with our accuracy. decision in Walker policy adopt paragraph also b of the same standard cases where the defen- required pending uncharged dant to rebut 18-6.4(b) allegations. provides: criminal Standard there is a need for further [Where evidence] sentencing respect of fers of the cess should not become a hearing court should conduct a disputes arising to all material factual out *7 any presentence reports evidentiary prof- or the parties. Although sentencing pro- "minitrial,” occasions when, in will arise order to ensure that a sentence misinformation, is not founded on material sentencing poena permit parties
court should to sub- persons witnesses and to cross-examine who reports persons rendered to the court and [such] providing reports. information contained such Hearsay sible at trial types and similar of information inadmis- be received in the discretion of court, parties but evidence offered subject guid- should be ing principle cross-examination. provision should be the anof effec- parties significant opportunity tive gations for both all alle- rebut likely to have a effect on the imposed. ABA sentence Standards for Criminal [3 (2d ed), 18-6.4(b), p Justice Standard 18-448.] 18-6.4(b) stops requiring While Standard short of Brickley, J. sentencing hearing trial-type of the at because delay great would and the which to the state cost places disposing cases, limit on the it result types judge’s to consider some discretion trial disputed enter- at without information request. proofs taining at the defendant’s further procedure focuses this It be observed should judge allegations right on the may rely to rebut right sentencing, upon on the not hearing Moreover, arises the need for allocution. only disputes regarding material where there exist likely the court’s to influence facts parties cannot court and the which the decision resolve without hearing.4 such a
rv resentencing, possibility it is Because prior acquittals necessary whether to determine disregarded, acquittal which since the must be original sentencing the defendant’s occurred after resentencing. agree acquittal I at would be Boyle federal deci- and a number of with Justice prior acquittal of a the mere fact sions charges properly underlying made facts are whose not, more, the trial without known to sufficient taking preclude judge from reason to sentencing. facts into account those A meaning a valid criminal convic- While jury clear, i.e., has found the defendant tion is acquittal beyond guilty doubt, an a reasonable necessarily did the defendant mean does pp engage 473- conduct. See in criminal J.). not 474 *8 post, explained, As one court (Boyle, 4 Id., Commentary 18-6.4, p 18-460. to Standard 435 Mich Brickley, lack only a acquittal demonstrates A verdict of doubt; it does not a reasonable proof beyond innocence. the defendant’s necessarily establish to reasonable doubt only a jury . . The needed . its have returned may it acquit quite plausibly or States lenity. because
favorable verdict [United (CA 4, 1989).] Isom, F2d defen- related to the reasons not number of Any hypothe- be may or innocence factual dant’s For acquit. to a decision explain jury’s sized factually guilty acquit example, jury may was, one for prosecution because defendant another, its best evi- present or unable reason strong witness dence, the case where as would be trial, evi- yet sufficient before disappeared died or prosecutor persuade dence remained it is example, another trial. To take proceed to acquit a true, jury may that a unfortunately, also of confusion because guilty factually instructions.5 regard judge’s discretionary framework present Under our more on an assess- are based sentencing, sentences offense. Were the than on the ment of the offender than a rather system judicial of this wisdom matter, in favor arguments then legislative on the basis solely criminals sentencing convicted have convicted been they the conduct for which For better prove persuasive. could well however, worse, discretionary our we have scheme, guidelines like the adhere who must judges to assist implemented addition, many do not result crimes are committed which while may charges, evidence of such crimes be of criminal institution given again, many can for this reasons in court. Once admissible disappear example, memories and their of affairs. For witnesses state fade over time, dissuade considerations of cost effectiveness charges following through pending once a convic prosecutors from dockets, overflowing obtained, and, criminal court in this era tion involving bargains com plea monplace. dismissal of have become *9 453 v Opinion Brickley, J. relevant, accu- scheme, the use of requires to that offender, though even information about rate relate necessarily that information does not exposure and in conviction conduct which resulted punishment. to criminal sum, in United States agree I with the court 1989): (CA 747, 5, Juarez-Ortega, 866 F2d that
Although may have determined jury elements government proved had not all of the the of doubt, weapons beyond offense a reasonable preclude considera such a determination does not facts of the offense at sentenc underlying tion of reliability ing standard. long as those facts meet so [Emphasis added.][6]
B may sentencing judge is not to say This once on the mere fact the defendant was rely of, necessarily and had been acquitted therefore on, is not charges. criminal This issue bound over need decide whether today. before us Nor we means charges necessarily on criminal bindover proven by facts have been underlying in the of an preponderance of the evidence absence The sentenc- challenge by effective the defendant. by the ing in this case was not confronted judge uncharged an pending charge, mere fact of a conduct, ac- previous criminal or a allegation of Rather, from several quittal. testimony he took hearing, one whom witnesses at the Golochowicz cross- trial was permitted testify was appellate majority to consider the issue of the federal courts prior acquittal underlying have also held that used the conduct justify under the federal enhancement sentences sentencing judge considerably guidelines, less discretion which allow Michigan judges presently enjoy. See United States trial than (CA 177, 2, 1990), Rodriguez-Gonzalez, and cases cited 899 F2d therein. 435 Mich Brickley, judge, that the who was
examined. I do not believe obligated consider a broad entitled —indeed —to range pose attempting to im- of other information in appropriate, sentence, an individualized disregard testimony this sworn should be made to which he witnessed in his own courtroom. allegations above, if
As noted relied on complainant testimony contained in the No. then on remand the defendant should be able to test *10 allegations. accuracy § See in. those however, not, The defendant should preclude be able to basing judge from his sentence testimony. judge this Since the on remand will be prior jury that a aware dant declined to find the defen- guilty beyond a reasonable doubt in the case involving complainant argu- may 3,No. he hear parties ment from the testimony and decide how to view this light acquittal. Moreover, of the be- jeopardy bar, cause the double the defendant pressure effectively unlikely will be to feel not to challenge accuracy allegations under- lying resentencing, be, in what will the event of prior acquittal. important context,
In it this is in mind bear presented that we are not a defendant issue whether punished for a crime for clearly obtained; which no conviction was this is upon only Instead, unconstitutional. we are called judges may, to determine whether trial in the upon exercise of the broad discretion conferred sentencing scheme, them in our consider relevant selecting and reliable facts about offenders when appropriate punishment legislatively within the range established for offenses whose commission proven beyond has been a reasonable doubt.
c my judgment, unnecessary it is to consider Brickley, appropriate any, relief, when a sentenc- if what charges pend- underlying ing court considers facts sentencing ing end which thereafter at the time of acquittal. case is entitled in this sentencing for reasons other than to a remand judge’s If the reliance on such facts. that he relied at on remand determines complain- testimony
original on the already defendant, dis- three, as ant cussed, then prior acquit- now should be able to use his allegations challenge accuracy tal testimony. contained in that involving
Finally, that, I in cases am concerned underlying sentencing judge’s reliance on facts a pending charges, right to remain a defendant’s pending charges may respect conflict silent with right of informa- to contest the with the upon I believe tion which a sentence is based. procedures consideration of the we should save appropriate rights necessary uphold an both case. *11 my judgment sum,
In it is basing precluded judge from a sen- should not be pend- underlying prior convictions, tence on facts uncharged ing charges, of and offenses—each present in those facts which was this case—where testimony developed through have been sworn presented very judge. the case before that pending charges, uncharged offenses, and acquittals, af- however, must be the defendant accuracy opportunity of those forded an to test the the ex- not reveal facts. Because the record does upon alleged con- to tent which the relied he not been for which has duct the defendant 435 Mich 443 456 Archer, J. to the
convicted, be remanded this case should development sentenc- trial court for further ing given any, relief, if should be record. What on conduct sentence is based defendant whose sentencing, acquittal and in an after which results what, protect adopted any, procedures should be if rights silent to remain the defendant’s effectively regarding pending chal- and to concerning allegations lenge such charges, questions in future to be answered are cases. dissenting (concurring part and Archer, appeal
part). granted limited We leave (1) misapplied Appeals the Court of issues whether People 590, 608; Grimmett, the rule of v 388 Mich (1972), unsup- concerning 278 the use of NW2d ported assumptions of other crimes as (2) imposing if sentence; and the Court factor applied Appeals properly the rule of Grimmett case, the Court should facts of this whether modify rule of Grim- overrule otherwise mett.
Although agree remand, I I write with the disagreement express my partial and with concern some the conclusions drawn.
i agree People Initially, Grimmett, I as v conjunction Lee, 391 Mich read in (1974), People Walker, 618; NW2d (1987), 261; 428 Mich a trial NW2d allows pending charges court to consider the existence of in wholly separate a defendant for a reading language of the offense. In the literal specific majority, I Grimmett see no restriction *12 by Archer, infor- of such court’s consideration a trial against supra People Lee, Further, Court this mation. accurately no are formal that there noted presentence re- of a contents limitations port; escape judge accordingly, trial cannot thus, being apprised as a "antecedents” of defendant’s legislative 771.14; MSA See MCL course. matter of 28.1144. imperative that
However, I it to stress feel pend- of consideration fine-line distinction between independent ing charges and formation of guilt, point assumptions Grimmett, focal of of Despite the or diminished. must be blurred never very reports purposefully presentence are that fact compilations of defendant’s detailed legal system, pending trial matters within charged steadfastly judges the sometimes with are refraining prejudg- responsibility from difficult dispensing time, thor- ment, while, at the same Accordingly, contemplated oughly justice.1 "un- as judges trial clarified,” Grimmett still disallows assuming as it relates to a defendant’s from pending charges._ Boyle practical implementation of the Justice finds fault with the prejudgment,” judges in that "trial must refrain from rule guilt” "inferring
judges prevented defendant’s as to would be from generally pending charges about the court has been either which Post, Contrary might p specifically apprised. otherwise 475. to what however, believed, "prevention” precisely the in result be such tended this Court Grimmett. n guilt,” p phrase Justice found on "infer[ences of] Boyle’s interchangeably "assumptions opinion, can be used with state, precedential guilt may guilt.” As law neither a matter this regard pending trial “inferred” nor "assumed” pertaining charges, any regardless heard court to to evidence Thus, attempt charge, her credible or incredible. whether by proposing mitigate perceived rigidity rule Grimmett drawn, encompasses sentencing courts "articulate” inferences Consequently, precisely it Grimmett disallows. within Boyle’s altogether, the intent is to overrule Grimmett unless Justice rule, exception, unsupported assumptions of forbids Grimmett without guilt, not. whether articulated or *13 435 Mich Opinion by Archer,
II aspect my disagreement of with Justice reasoning concerns what believe to be Boyle’s I taking concept impos- of "wide discretion” in ing step Although sentences one too far. I do judge’s concur that a trial broad consideration at everything pending can include from prior agree convictions, to I cannot with Justice or the cited federal circuit court of Boyle appeals judge rely decisions which allow a trial "on evidence of crimes of which the defendant has acquitted.” post, p been See n 15. suspicion
Once the cloud of has been removed particular charge, from a defendant as to a facts or circumstances surrounding such removal subsequent sentencing should not come before a my justifica- view, trial court.2 In there is no viable support inviting engage tion in of a defendant any exchange concerning in prior kind of discussion or guilt. expanded
exoneration of This version according allocution, which, to Jus- require tice would an additional and Boyle, clearly rehashing belated of a matter which has definitively disposed been of, resolved and will not any way, remove, or, diminish the eminent danger precondemnation that would befall a practice defendant if this were allowed. The resur- judges Trial should never be denied the "evidence of their senses” Post, p reality However, or "the reasoned any of their conclusions.” 475. well- clearly judicial resolution should reflect the exercise of circumspection. restraint and the Boyle, As noted Justice members of judiciary pledge making themselves to a standard of decision considerably higher layman. which is than that of a Trial courts can layman-like predilections never succumb to crimes, i.e., toward those accused of accusation, despite jury acquittal, mere or bench-tried equals wrongdoing outright guilt. responsibility The inherent of a sentencing judge requires, least, unimpeachable approach an appointed duty, when, especially context, their as in this there is an tendency inevitable toward "inference” of kind. Archer, J. past favorably accusation3 resolved of a rection the would serve contemplating merely purpose its existence unnecessarily unfairly only probability of im- prejudice properly a defendant wrongful conduct. inferences drawn may Irrespective be a that a trial the fact through acquittal apprised of a defendant’s open report court, is a presentence there inor inconsequential, be- how difference, no matter knowledge passive con- and active of a fact tween formal not be a There the same. sideration limit on what report, process.” presentence in a contained can be due dictated limitations there are "but *14 supra Lee, 636. Fundamental invasively consequently, dominate fairness, must presentence can be information how at least judicially trial courts utilized, to the extent through willing and to wade and able must be may sen- separate into a factored that which decision and be light may tencing In not. that which process particular considerations, I due of these reasoning give simply lie- credence to cannot colleague’s my court of a trial condonation hind prior acquittals being in sen- allowed to consider tencing.
m
clarity,
express one final
I
interest of
In the
prior prosecution
prior acquittal
"a
is characterized as
Whether
conviction,”
favorably
post, p
or
in a
does not result
accusation,
express
past
difference between
there is an
resolved
allowing
allowing
past
sentencing judge
and
conviction
to consider
past acquittal.
court
The concern is not which
of a
consideration
resolved the
accusation,
In the context
prior
it was resolved.
but how
"unfavorably
represents
imposition,
an
conviction
sentence
of
resolved
accusation,”
sentencing judge
have
past
would
so that a
resolution,
previous
it,
only
unfavorable
but
an instant
before
Whereas,
to allow
if this Court were
as well.
resolutions
unfavorable
fashion,
acquittals
we would be
prior
operating
person’s guilt
in the same
to be considered
assumption
judicially
that an accused
forbidden
on the
merely
assumed;
acquittal
or
vindication
should be
inability.
prosecutorial
represents
of the evidence standard and presentence report treat as the contents of a verified accurate, however, presumptively provided, allegations presen- material factual made report challenged effectively tence defendant the the satisfy should not be deemed to government’s persuasion unless burden of reason- able verification such information can be shown [by person prepared to have been made the oration who presentence report] adequate factual corrob- otherwise exists or trial [Walker, supra record.” at 267-268.] Utilizing appears Boyle Walker, Justice to tread making dangerously close to the assurance that a defendant can seek redress from sentencing trial court challenging impropriety by the accu- racy sentencing. of the information considered at *15 Specifically, "challenge accuracy,” this to the my understanding, likely which, to would occur disputes pending when a defendant whether a charge, appears presentence report, it in as actually pending against him, seems, as it stands attempt providing now, a veiled at a defendant with the chance to declare his innocence of a pending charge dispel any "unsupported and, thus, guilt” assumptions judge may entertaining. of a my only view, In the reach of extends Walker to provide safeguards necessary in for defendants Cavanagh, J. pending considers trial court that a the event safeguards, imposing charges These sentence. in arising the situation to however, do not extend goes beyond consideration mere court when a trial indepen- charges pending formulate an to of charges. respect guilt finding to such with dent at practical are matter, defendants convicted As a disadvantage, of their own in terms an enormous sentencing stage credibility, of the general at By no proceedings. position time, are defendants any way, challenge, effectively a to forged improperly in- ahead and judge has who against pending guilt them. toas ferred challenge however, to all, Above challenge equates charge way with no awith innocence associated circumstantial charge. emphasize necessary Thus, I it find under remedied cannot be Grimmett error contrary, of a Grimmett- commission To the Walker. require type sentencing. for re- reversal still error would supra 608. Grimmett, See IV agree findings my above, I with stated view Brickley remand as he would insofar Justice the trial court reasons to articulate for the respond imposing to de- for this sentence using propriety challenges certain to the fense disagree, p however, with Ante, 446.1 information. Brickley’s in the balance observations Justice part beginning opinion for the reasons iv his forth above. set Brickley Justices I concur with
Cavanagh,
trial court
remand
and Archer
that a
development
record is
further
warranted. would
discussion
I
reserve
*16
Levin, J., Cavanagh, concurred Boyle, in clarify J. We are asked this case People Grimmett, v 590, 608; 202 rule of 388 Mich (1972), prohibiting unsupported assump- NW2d 278 in guilt tions of of other crimes as a factor sen- that, tencing. The held under Appeals Court Grimmett, improper the trial made court such assumptions Ewing when it stated that defendant had on a involving "carried course conduct attacks on of five young periods women over [sic] years,” finding since that was based on evidence a Golochowicz1 hear- following excluded from trial ing, which not adequately evidence thus was estab- Ap- lished. We would conclude that the Court of Grim- peals both misunderstood the rule stated mett and misconstrued the record this case regarding evidentiary basis of the defendant’s sentence.
While Grimmett
unsup-
states
accurately
ported assumptions
cannot be made at
sentencing,
the crucial
under
cir-
inquiry is
what
may
cumstances
trial court
consider
properly
Grim-
understood,
factor.
Properly
mett
general
proposition
stands
sentence must be based on inferences drawn from
that,
accurate
disputed,
information
and
when
an
unverified offense or
relied on at
activity cannot be
People Walker,
v
sentencing.
261;
Mich
(1987).
NW2d 367
A trial court
consider a
wide range
sentencing,
including
of factors
evidence of pending charges, prior acquittals,
acquittals.
subsequently
result
Golochowicz,
People
(1982).
298;
413 Mich
that Thus, no the defendant. there is tion made for the claim that the trial court basis guilt. unsupported assumptions of The court’s sen- on information established tence was based preponderance Accordingly, evidence. of the record would vacate the decision of Court we imposed Appeals and the sentence reinstate trial court.
i
September
pleaded
5,1984,
the defendant
On
charge
first-degree
guilty to a
criminal sexual
28.788(2)(l)(f),
750.520b(l)(f);
conduct,
MCL
MSA
seventeen-year-old
of a
woman on
the sexual assault
February
evidentiary
20,1983.
11,1985, an
June
hearing
On
plaintiff
whether the
was held
determine
present
would
allowed to
evidence at trial of
404(b)
pursuant
acts,
to MRE
and
defendant’s
People Golochowicz,
298;
413 Mich
The first woman
past
23, 1984,
while she
June
the defendant drove
jogging
country road,
returned
down a
then
was
jog
foot
if he could
with her. She
and asked
"get away”
told the defendant
stated
she
although
her, she
that,
he tried to block
and
The 1979, riding while 1), that on July No. testified lake, job across babysitting to her bicycle her her.3 She towards jogging she saw the defendant her bike her off pulled the defendant testified thirty about her into a wooded area dragged and on her He threw her down feet from the road. head, back, removed the top her over her pulled clothes, raped her. victim of her and rest kill he the defendant told her would testified that parents, her lie police her if she told the got up. for him to leave before she there and wait *18 victim, gray the defendant wore a According to the that were sunglasses running aviator-type suit and very dark.4_ before tan naw County Victim No. the defendant the and that he was defendant had the who Eskridge coordinating admitted that when the on the same composite assaulted identification The During 1984, Victim No. During The victim She also testified complainant in the instant case. police right compact, County assaulted her from running past. police sheriff reviewed she had not been sure testified the her five sketch and indicated cross-examination, 6, road, their efforts in this case. was Sheriff’s in Washtenaw and and two evidentiary hearing, at the dated June became a told her that he had been 6, took the license number of after "involved.” admitted that he had encountered that the and that when he had years preliminary examination. that she had seen the defendant days Department. suspect in police the earlier, although assault, 23, 1984, defendant, later suspicious activity the victim that it resembled her attacker. showed that reported Livingston but was unable Washtenaw the and noticed some similarities Three weeks they when told assault It pictures her passed watching her. She talked to the were of the further she was able to make the assailant’s pictures Counties had incident to the Washte not until a Washtenaw involving County her, she was shown. about the complaint involving later she viewed a testified he identify her on the road Sheriff William jumped a week before man Victim No. just car, complaint that who the man at her a new begun that had She the an 4, Boyle, J. eighteen-year-old victim, woman
The third an (Victim 3), August 1982, that testified No. while she was who was the defendant she was assaulted defendant, jogging. that stated She grabbed jogging her, road, turned her on the same He her hold. told around, held her in choke quiet then her harder. He he choke to be or would road, off side into the weeds took her put shirt, stomach, it took off her on her threw her clothing of her face, and the rest removed over her raped After on her back. he he turned her before her, got to one before she he her to count hundred told 5up. (Victim complainant in the instant case No. 4), 20, 1983, was that on June while she testified jogged Portage jogging Lake, the defendant near dragged up her into the woods. In her and behind put stomach, her woods, he her on her threw clothing face, her her and removed shirt over he on her back. After he turned her over before raped one her, her to count to hundred he told kill threatened to her if she moved and before she the defendant The victim stated screamed. sunglasses aviator-style mirrored silver wore rims. plaintiff would be
The trial court held only testimony of Victim No. allowed to use 404(b), concluding act MRE as under against 1 and Victims 6 did not sufficient- the acts “signature” May ly defendant. bear the On *19 14, 1984, August charged and The was arrested on defendant first-degree conduct for the sexual assault of Victim criminal sexual 28, 1984, pleaded no on sen- 1. contest and December was No. He twenty-five serving years. The was time for tenced ten to defendant 4, he was for the sexual assault Victim No. this offense when the victim in the instant case. tried 5 hearing, evidentiary the victim as At identified defendant Subsequent involving to the trial the for the the man who assaulted her. 4, acquitted was and No. the defendant tried assault of Victim alleged 3. assault of No. sexual Victim Mich Boyle, jury guilty 16, 1985, the found the defendant as charged first-degree criminal sexual conduct. At sentencing, prosecutor requested that the court impose lengthy citing sentence, the other al- leged, proven, misconduct, and acts of and the physical injury inflicted on the victim in this case. object The defendant did not any allegations of the other of sexual misconduct presentence report.6 in contained sentencing guidelines The in effect at the time established a recommended minimum of 120 to (10 years). 240 months to 20 The trial court on 27, 1985, sentenced the defendant to life June. imprisonment, explaining departure part by its reference to the various other levied against the defendant:
It’s you obvious to me have carried on a course involving of conduct young attacks on women over periods years. five And with the instant [sic] crime here was a coldly, premedi- calculated and stated, tated offense. As I one of the more serious offenses known in the law Michigan._ acknowledged receipt The defendant and defense counsel presentence report, comment, only and the defendant’s when asked if anything say, "No, Honor, he sorry truly had was Your other I’m than everything happened. My everything.” that’s letter said regarding 1, 3, 4, In addition to the information Victims above, presentence report described assault and contained information of an battery involving (Victim twenty-six-year-old victim No. 7) just days prior five to defendant’s arrest for the instant offense. The attempted pull bicycle, fought the victim off her she but got back and the defendant’s license number before he left the area. offense, committing charge The defendant admitted dismissed assault of and the was following December, his for the sexual 1. Victim No. report third-degree also contained references to a criminal charge pending County, occurring conduct sexual in Washtenaw fifteen-year-old on 29, 1980, September involving (Victim 2), victim No. plead 15, 1985, July to which the defendant was scheduled to to on attempted and an charge pending assault with intent to commit sexual contact Livingston County, occurring 26, 1983, July (Victim 5). .involving age a woman whose was not noted No. *20 People Ewing 467 v Opinion Boyle, J. ap- on was affirmed conviction
The defendant’s Upon Appeals.7 peal our initial of in the Court however, decision, Court re- this that review Appeals to con- the the Court manded case namely, addressed, it had not issue sider an regarding the court’s conclusion the trial whether involving young attacks on "course of conduct” years preceding five violated women over supra, assuming Grimmett, defendant’s rule in guilt charges.8 remand, On unresolved of certain panel and sentence vacated defendant’s court for resentenc- to the trial case remanded ing.9 granted panel Following decision, opinion.10 again rehearing clarify It its earlier "that the trial court’s statement concluded you carried on course '[i]t’s me have obvious to involving young women over attacks on conduct indepen- years,’ periods an constituted [sic] five charges finding on not before dent supra.” panel Grimmett, court, in violation of based must have been the conclusion found following testimony the Go- ruled inadmissible on hearing, holding part: lochowicz court, finding an "obvious course [trial] [T]he finding clearly this years,” 5 based conduct over hearing, testimony Golochowicz adduced against charges pending report of and not on a event, thing one to notice it is defendant. quite another pending the existence of charges. guilty of those to assume the 7 per Ewing, opinion People unpublished curiam of Court of v 86296). (Docket 29,1987 Appeals, January No. decided 8 (1987). Ewing, People 866 429 Mich Remand), (On opinion per Ewing unpublished curiam of People v 104146). (Docket 25,1988 Appeals, No. decided March the Court of (On per unpublished opinion Rehearing), curiam People v 104146). (Docket 19,1988 Appeals, August No. decided of the Court of 435 Mich Boyle, Lee, permissible,
While the former is
618;
(1974),
not,
Mich
ii Grimmett, one of three men who robbed a grocery charged store was with the murder of the store owner and assault with intent to murder arising shooting during out of the of a customer robbery. Separate the trial, trials were held and the first charged in which the defendant was first-degree murder, ended when the trial court discharged jury.11
Prior to the commencement of the second trial charge, arraigned, on that the defendant was tried, and convicted on the assault with intent to commit charge. sentencing, murder At the trial com- " mented, [the 'while defendant] was tried for the shooting certainly Kubon, of Mr. he is the same 11At the murder trial plead stated he wished guilty second-degree understanding murder on the basis of his charged the information degree. prosecutor murder in the second The accept plea, contending declined to charged the information first- degree opening murder. In his jury, prosecutor statement to the prove stated that he premeditated. intended to the crime was The prosecutor trial court allowed the amend the information adding premeditation,” the words "and with overruling the defen objection amendment, dant’s MSA "believing 767.76; that MCL 28.1016, required jury the dismissal of the when an information amended, discharged Id., jury.” was p 595. Boyle, J. grocer,
person Mr. the other who murdered ” Aubrey at the same time.’ Shaker appeal, that the trial court this Court stated On The a defendant. latitude in had "wide previous may convic- consider a defendant’s court public concerning defendant, or tions, records the court.” Grim- admissions to even defendant’s go p mett, not, however, so far as 608. It finding independent defendant’s make "an although charge,” because, "[the on the murder technically arrested,” had been he defendant] had charge. Id. not been convicted on murder A general jurisdictions is rule in most punishment given an convicted offender under scheme within indeterminate *22 subject only court, limita- the discretion sentencing imposed by the tions the statutes and Sentencing statutes, most the constitution. part, purport a do to limit the kinds matters not imposing may The in sentence. court consider clearly does limit the considerations constitution of the trial court at clearly
sentencing.12 It also
range
sentencing judge
a
allows
to consider wide
a
including participation matters,13
criminal
12
that,
rely
example,
may
For
court
not
convictions
a
assumed
fact,
exist,
Burke,
736;
1252;
68
92
did
v
334 US
S Ct
Townsend
(1948),
given
may
no
conviction
L Ed 1690
consideration
be
rights.
of a
constitutional
that
is obtained in violation
defendant’s
Tucker,
589;
443;
592
30 L Ed 2d
United
v
404 US
S Ct
States
(1972).
may
example,
For
consider the defendant’s failure
court
States,
552;
cooperate
government,
v
445 US
the
Roberts United
(1980),
1358;
S Ct
Lee
may
trial court
(the trial court
and Grimmett
charges”)
pending
unsupported
assumption
not "use
has cre-
sentencing)
crimes as a factor”
other
Appeals
in the Court of
consistency
lack of
ated a
Books, People v
See,
e.g.,
on this issue.
decisions
(1980); People v
500;
Compare Rivers, 147 Mich v (1985); People Carter, 128 Mich v 382 NW2d (1983), App on other rev’d 541; 341 NW2d (sen- (1985) grounds 941; 369 NW2d 422 Mich improperly tencing judge trial testi- considered concerning mony the de- for which criminal acts convicted). was not fendant
B regarding in the lower courts The confusion a court and under what circumstances whether activity of a defen- criminal consider other or in a conviction has not resulted dant which charge by this Court to some action necessitates clarify clarify and Grimmett the rule. We would jurisdictions, majority of hold, in line with aids circumstance which complete and accu- more construction of a court’s background, history, picture of a defendant’s rate properly in individualiz- is considered or behavior ing and not fit "the offender the sentence to supra, p merely Williams, 247. An the crime.” premised on the must be of the individualized sentence itself, crime as well facts and circumstances as the committing background convicted of of the individual prop- Grimmett, rule of
the crime. The general proposition erly understood, for the stands on accurate infor- must be based that a sentence mation. our recent conclusion
We also would affirm "effectively supra, People Walker, that where v proved challenged,” factor need only by preponderance evidence. McMillan Pennsylvania, 2411; 91 L Ed 79; 106 S Ct 477 US (1986). regarding acts, Thus, criminal facts 2d like a host of other findings
express implied or determining typically sentence, judges make Boyle, jury, p 8, beyond or id., 92, n be decided need proven clear a reasonable doubt even convincing evidence. and determining
Again,
not limited in
the court
only
convictions,
to consideration of
sentence
matters of
public record,
Un-
and admissions.
activity,
activity
charged
for which
criminal
*25
pending, may be consid-
are still
criminal
may
activity
court,14
criminal
as
ered
acquitted,
has
whether
the defendant
been
which
sentencing,
long
subsequent
it
to
so
as
or
preponderance
test.15
evidence
satisfies the
14
troubled,
Brickley,
that the trial court’s
We
not
as is Justice
are
against
may
charges pending
defendant
affect his Fifth
reliance
Amendment
regard
charges.
right
those
to remain silent with
to
Clearly,
Fifth
no
the defendant’s
Amend
there was
actual violation of
compelled
right
not
to make
in this
The defendant was
ment
any
case.
sentencing.
the fact that he chose to
at
Nor did
statements
legal
against
imposition
result in the
sanctions
remain silent
him,
probation.
contempt
Lefko
such as
or automatic revocation
(1977).
801;
2132;
Cunningham,
1
97
53 L Ed 2d
witz v
431 US
S Ct
Moreover,
is
indication in the record that the defendant
there
no
sentencing
the statements he
declined to allocute at
made would be used
out of fear that
him,
against
said
or that what he
at
hearing
proceeding.
against
used
him at the later
would be
Brickley
Thus,
agree
should
that
Court
wait
we
Justice
presented
Fifth
until it is
with a case
address the
Amendment issue
i.e.,
issue,
in
does
that
make statements at the
charges
informed that such statements
fact raises the
one in which the defendant
hearing
pending
regarding the
him,
sought
against
or
he is
are then
to be used
where
against
may
specifi
him and
be used
See,
cally
e.g.,
for that
Buchanan v Ken
denies
allocute
reason.
(1987)
402,
2906;
425,
21;
tucky,
107
it
a reasonable doubt
the existence of
435
443
Mich
Boyle, sum,
prior prosecution
which does not
conviction,
result
in a
as well as criminal activity
for which the
has not
prosecuted,
been
wrongful
nevertheless
reflect
conduct
proper
can be a
consideration
at sentencing, pro-
given
vided the defendant
an adequate opportu-
Johnson,
United States v
nity
explain.
to rebut or
1985).16
(CA 8,
767 F2d 1259
Where the record of
plea proceeding
trial or of the
or the sentenc-
ing report
supporting
contains evidence
a sentenc-
factor,
ing
"the sentencing
judge shall exercise
guilt
negate
jury
....
verdict
the criminal action did not
[T]he
possibility
preponderance
that a
of the evidence
engaged
could show that
was
an unlicensed
[the defendant]
[Citing
firearms business.”
89
362
United States v One Assortment of
Firearms,
354, 361-362;
1099;
465 US
104 S Ct
79 L Ed 2d
(1984).
Jeane,
1512,
(CA 5,
See Roussell v
842 F2d
1988);
367,
Campbell,
App
380;
United
States
US
DC
(1982).
right,
imposing
F2d
See also anno: Court’s
sentence,
of,
consider,
to hear
evidence
other offenses
defendant,
committed
Service for 96-100
782 F2d 34
96 ALR2d
768-818. Later Case
ALR2d,
Cardinal,
pp
60-86. United States v
*26
(CA 6, 1986),
(1986).]
cert den
In this engaged in course of had that the defendant involving young on women attacks conduct testimony hearing. at the Golochowicz it received prefaced immediately re- its statement The court garding com- conduct course of the defendant’s process part menting overall of this "[a]s that very Hearing I was held Golochowicz testimony vividly of other victims had to hear you manner them in some assaulted claimed who ruling determina- I had to make or form. tion testimony admissibility of similar relative to correctly difference there is a observes Justice Archek accuracy respect findings of a a trial court’s between inferring report, presentence and its charge in the contained however, assumes, charge. incorrectly He as to that defendant’s simply charge challenge we mean *27 against charge the defen right dispute made has been whether course, defendant, right the facts the to contest has dant. The information charge underlying as well. the 435 Mich Boyle, J. explaining for its the reasons in this trial.” departure guidelines, trial court from the [sic] of the Golowicz hear- that "as a result stated ing, [defendant] has carried [was] it disclosed that involving young attacks on on a course of conduct period.” year over a five women Appeals testi- held that since the The Court of mony 1 and 6 was excluded of Victims No. No. hearing, it could not be after the Golochowicz it could not the trial court because considered passed preponderance of the evidence have question However, addressed Golocho- test. supra, wicz, unc- evidence of similar whether 404(b), harged under Rule acts is admissible wholly evidence of distinct from the issue whether charged can be similar acts is information which sentencing. no occa- considered at While we have what constitutes the "sub- sion here to determine stantial evidence” required by Golochowicz, and opinion thus offer no proof on the issue the burden 404(b), under MRE we do observe that Appeals the evidence Court of conclusion regarding Victims 1 and 6 must not have been proven by preponderance of the evidence because record. it excluded from trial misconstrues the was judge above, the testi- As noted the trial excluded mony it the defendant’s because did bear signature, unlikely it not because was actually committed the acts. importantly, however,
More we believe holding Appeals the issue Court of misconstrues question this case. The is not whether trial that he found the must state preponderance evidence, factor but sup- whether, on, if the factor is rather ported by relied preponderance In our of the evidence. testimony view, of the victims satisfied of each Obviously, preponderance of the evidence test. *28 by Opinion Boyle, J. regarding testimony 1, an of Victim No. the had at that time the defendant offense of which already standard, convicted, as satisfies been testimony 4, in No. the victim the of Victim does regarding testimony 6, of Victim this case. The No. assault, in which encounter the "unsuccessful” an "involved,” like- was admitted he preponderance the defendant the evidence test. wise meets the testimony Lastly, 3, also No. who the Victim preponderance clearly trial, the meets testified at although ultimately since, was the defendant test acquitted offense, for he was bound over of that probable that there was trial after a determination charged the act. to believe he had cause committed charges find, therefore, ex- the would We finding upon plicitly by in a the court relied trial by have been the defendant course conduct by preponderance evidence of the established charges not of those did and that its consideration note that We also violate rule Grimmett. information, also contains additional the record preponderance view, established, in our supports evidence, the trial court’s "course finding.18 only Thus, do each of of conduct” preponderance test, taken above factors meet preponderance clearly together they establish the trial court’s conclusion of the evidence the defendant involving engaged of conduct a course period young attacks on women over years. five given the defendant was also would find that
We
adequate opportunity to chal-
an
tence
which was dismissed
the offense
degree
defendant was
We
report
criminal sexual
refer in
involving
involving
regarding
scheduled to enter a
particular
Victim No.
following
Victim No.
conduct
to the information
assault and
his
involving
7,
1,
which the defendant admitted
plea of
and the
Victim No.
battery charge
guilty
pending
contained
December, 1984,
July
charge
for which the
15,1985.
against
of third-
presen-
but
specifically respond to defense counsel’s assertion that he did not believe the court could consider of the convictionless acts deprived right somehow challenge the defendant of the information in the presentence report regarding those acts. The de- *29 surprised by fendant does not claim that he was information, this and once he and his counsel had report received the court he was on notice that the trial might rely everything it, in and that the burden was his to convince the it court that should not. importantly, however, defendant,
Most the day, challenge only challenge this has never indicated a desire to underlying Rather, those at facts. the challenge only indeed, the in this — Court—was to the court’s consideration of such general. factors in lenge The defendant that lost chal- sentencing, properly and so under our reading of Grimmett and Lee. He cannot now agree claim that the trial court’s failure such information deprived could be considered also right practi-
him of the to allocute. As a . matter, cal once it became clear that the court rely pending charges would on the or conviction- nothing prevented acts, less defendant from then it said or did the
challenging accuracy case, words, information. This is not a in other having which, remarks, in made its the court right denied the defendant to allocute further response to those remarks.19_ that, significant despite specific It is also the absence of challenge it, accuracy of the information contained in the trial explicitly presentence report "up-to-date court found the to be [and] upon competent based material.” People Boyle,
CONCLUSION view of We would conclude that reasonable light Lee, Grimmett, reference activity, criminal for which no conviction other presentence resulted, has report be included in the and considered the court. The defendant given opportunity If must be sufficiently disputed, for refutation. informa- upon rely tion imposing intends to pre-
sentence must be established ponderance evidence, consistent with supra. Walker, case,
In this for the there is no basis conclusion the defendant’s sentence was increased on basis of an inference drawn from inaccurate infor- opportu- mation, and the defendant did have the nity Accordingly, to refute that information. we Appeals would vacate the decision of the Court of imposed by and reinstate the sentence the trial court.
Riley, C.J., J., Griffin, concurred with *30 Boyle,