People v. Dixon
| Decision Date | 28 April 2022 |
| Docket Number | SC 162221 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. HAMIN LORENZO DIXON, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Argued on application for leave to appeal December 9, 2021.
Hamin L. Dixon pleaded guilty in the Chippewa Circuit Court to attempted possession of a cell phone, MCL 800.283a. Defendant was serving a sentence at a state correctional facility when prison staff found him in a bathroom stall near a cell phone. A cell phone charger was later found during a search of defendant's shared prison cell. Defendant was charged with possession of a cell phone in a prison and pleaded guilty to attempted possession in exchange for dismissal of the possession charge and withdrawal of the prosecution's request for habitual-offender sentencing. The trial court assessed 25 points under Offense Variable (OV) 19, MCL 777.49(a), for conduct that threatened the security of a penal institution. The court sentenced defendant to 11 to 30 months in prison. Defendant later moved to correct an invalid sentence, arguing that the court should have assessed zero points under OV 19 because there was no evidence that his conduct had threatened the security of the prison. The court denied the motion, concluding that there was no set of circumstances under which possession of a cell phone would not threaten the security of a prison. The Court of Appeals Redford, P.J., and Beckering and M. J. Kelly, JJ., affirmed reasoning that, like possession of drugs in a prison possession of a cell phone in a prison is inherently dangerous. 333 Mich.App. 566 (2020). Defendant sought leave to appeal in the Supreme Court, and in lieu of granting leave to appeal, the Court ordered oral argument on the application. 507 Mich. 924 (2021).
In an opinion by Chief Justice McCormack, joined by Justices Clement, Cavanagh, and Welch, the Supreme Court held:
Possession of a cell phone by a prisoner justifies a 25-point score for OV 19 only if facts establish that the defendant's conduct actually threatened the security of the prison.
1. A 25-point score for OV 19 requires the trial court to find by a preponderance of the evidence that the defendant, by their conduct, threatened the security of a penal institution. Two factual findings are necessary to satisfy this standard: (1) that the defendant engaged in some conduct that (2) threatened the security of the prison. The Court of Appeals did not address the lack of any evidence of "conduct" by defendant, other than being near the cell phone when it was found, that threatened the security of the prison. Relying on People v Dickinson, 321 Mich.App. 1 (2017), the Court of Appeals apparently found that possession alone was sufficient conduct to warrant a score of 25 points for OV 19. However, Dickinson was distinguishable and unhelpful because the defendant in that case brought heroin into a prison while visiting an inmate. Therefore, the defendant's conduct was smuggling, in addition to possession. Smuggling a controlled substance into a penal institution is a crime, which justified the assessment of 25 points for OV 19; i.e., because the defendant's conduct was illegal, it threatened the security of the penal institution. People v Carpenter, 322 Mich.App. 523 (2018), was also distinguishable. The Carpenter panel upheld the defendant's 25-point score for OV 19 because the defendant had threatened the security of the jail where he was an inmate by attempting to smuggle controlled substances into the jail and by attacking an inmate he believed had informed jail authorities of his plan. In addition to the threat posed by smuggling, the Carpenter panel reasoned that the retaliatory assault was an additional threat to security, in part because it had the potential to discourage other inmates from reporting security breaches they might witness. Both Dickinson and Carpenter focused on the defendants' conduct beyond the drug possession, including smuggling and assault, to justify the assessment of 25 points for OV 19. There was no similar evidence of conduct beyond the cell phone possession in this case. Possession alone even constructive possession, might be conduct that threatens the security of a penal institution, depending on the item possessed. For example, someone who was not authorized to possess a gun in a prison, but was found in possession of one, would threaten the security of the prison through possession alone. But determining whether possession of a cell phone threatens the security of a prison requires an assessment of the accused's conduct beyond the possession itself because, unlike a gun, a cell phone has many nonthreatening uses. Because the only evidence in this case was that defendant was near a cell phone, there was no support for the trial court's finding that defendant engaged in conduct that threatened the security of the prison.
2. The Court of Appeals panel relied on the holding in Dickinson that controlled substances posed a threat because controlled substances were inherently dangerous. The Court of Appeals in this case saw cell phones the same way and was persuaded that because the Legislature made possessing a cell phone in prison a crime, that act is necessarily a threat to the security of a penal institution. According to this view, the specific facts of the possession are not relevant. But the statute does not support the Court of Appeal's textual shortcut. MCL 800.285(1) provides only a maximum sentence for someone who violates it and does not address minimum or appropriate sentencing. Offense variables are intended to generate a sentencing range that reflects the particular facts of each case. If OV 19 instructed the court to assess 25 points for possession of a cell phone in prison, then the position of the Court of Appeals would be persuasive. But OV 19 requires the court to find that the defendant's conduct threatened the security of the prison. Although some cell phone possession by prisoners meets that standard, not all of it does. Because the sentencing court found no facts beyond constructive possession, there was no evidence that defendant's conduct threatened the security of the prison, so OV 19 was improperly scored.
Reversed and remanded.
Justice Viviano, joined by Justice Zahra, dissenting, opined that common sense and the overwhelming consensus of legal authorities indicated that prisoners in possession of cell phones pose an obvious danger to prison staff and other inmates, regardless of whether the phone has been used or is being used to commit a new crime at the moment of discovery. Justice Viviano noted that the Legislature clearly indicated that cell phones threaten the security of penal institutions by enacting MCL 800.283a, and numerous decisions from other jurisdictions have explained the dangers of cell phones in prison. Additionally, media reports and data indicate that cell phones pose significant risks in prisons and have been used by prisoners to conduct criminal activity and foment discord within prisons. The majority tried to avoid this conclusion, that cell phones pose a severe risk to prison security by enabling harmful conduct, by artificially dividing the statute into two parts. First, the majority determined that mere possession of a cell phone is insufficient to constitute conduct, without defining "conduct." In a criminal setting, "conduct" refers to particular acts that have been proscribed, and the conduct proscribed by the statute at issue is possession. Therefore, according to Justice Viviano, there was no serious debate that defendant was engaged in "conduct" in this case, even if he only possessed or attempted to possess the cell phone. Second, the majority suggested that there must be particular facts that establish a threat in order to satisfy the requirements of the statute. To "threaten" means to be a source of danger or menace to something. The risk of danger need not materialize in order for conduct to be threatening. Therefore, whether defendant had or had not used the cell phone in a dangerous manner was irrelevant because the risk itself constituted the threat. Similarly, whether cell phones were inherently dangerous was irrelevant. OV 19 is not limited to items that are dangerous in every context, but rather requires consideration of whether the item is dangerous when possessed by an inmate in a prison. Because possession of a cell phone by a prisoner endangered the safety of the prison, Justice Viviano would have affirmed the judgment of the Court of Appeals.
Justice Bernstein, dissenting, agreed that simple possession of a cell phone may not be enough to assess 25 points for OV 19 but disagreed with the majority's analysis of the statute as imposing two independent requirements: (1) an offender must engage in some conduct that threatens the security of the prison, and (2) that conduct threatens the security of the prison. According to Justice Bernstein, it was not clear that these were independent requirements, especially given that the majority acknowledged that mere possession is conduct. Moreover, the majority's analysis collapsed into the second requirement when it concluded simply that mere possession cannot be sufficient conduct to score 25 points under MCL 777.49(a) because a cell phone can be used in a nonthreatening manner. Justice Bernstein noted that although the majority distinguished Dickinson and Carpenter under the conduct requirement, the majority did not explain why the Court of Appeals panel erred by relying on these two cases under the threat requirement. Justice Bernstein suggested that scoring points for OV 19 might require a finding that a defendant intended to threaten the security of a penal institution and that interpreting "threatened" to include an element of intent would...
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