People v. Ewing
| Decision Date | 07 September 1990 |
| Docket Number | Docket No. 84137 |
| Citation | 458 N.W.2d 880,435 Mich. 443 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John Chandler EWING, Defendant-Appellee. |
| Court | Michigan Supreme Court |
I am unable to agree entirely with the analysis adopted in the opinions of either Justice Boyle or Justice Archer. I believe that the trial judge was entitled to base his sentence not only on the defendant's prior conviction, but also on testimony concerning the underlying facts of the prior conviction, a pending charge, and an uncharged offense. The defendant, however, was denied his right to test the accuracy of these allegations regarding his conduct.
For this reason, it is my opinion that this case should be remanded to the trial court. On remand, the sentencing judge should indicate with greater specificity which facts he relied on in imposing sentence. If the judge determines that he relied on allegations against the defendant which did not result in a conviction, then the defendant must be afforded an opportunity to challenge the accuracy of those allegations. If the judge then determines that the accuracy of those facts has not been determined by a preponderance of the evidence, the defendant should be resentenced. Finally, if a resentencing is ordered, the judge will be entitled to rely on testimony containing facts underlying an acquittal which was obtained after the original sentencing in this case, subject to the defendant's right to dispute the accuracy of that testimony.
Defendant Ewing was convicted by a jury of first-degree criminal sexual conduct. The opinion for reversal accurately summarizes the testimony given at trial and at the pretrial Golochowicz 1 hearing, as well as the appellate history of this case. Op. pp. 888-890 (Boyle, J.).
In addition, I observe that the defendant, at the time of sentencing, had pled nolo contendere to the first-degree criminal sexual conduct charge involving No. 1. Following his conviction and sentence in this case, the defendant was acquitted of charges arising from the violent sexual assault alleged by complainant No. 3. He was never charged with the crime alleged by complainant No. 6, which the judge at the Golochowicz hearing described as a "simple assault."
At the sentencing hearing, the prosecutor urged the court to depart from the guidelines and impose a very lengthy sentence. The prosecutor not only emphasized the defendant's convictions involving the 1979 assault on complainant No. 1 and in the present case, but also insisted that the court rely on allegations against the defendant which had not resulted in convictions.
The prosecutor vehemently argued that a sentencing judge should be able to make assumptions about a defendant's guilt of separate criminal charges, and he urged the trial judge to "have ... the guts to do something more to look beyond the substance of this particular case in the form of it just on the record." 2
The defendant objected on the record, prior to the imposition of sentence, to the consideration of arrests or any charged offense not resulting in conviction as evidence of guilt in imposing sentence. The trial court did not respond to the defendant's objection. 3
After hearing from the prosecutor and defense counsel, the trial court explained its decision to depart from the guidelines' recommended range of ten to twenty years. In imposing a life sentence, the trial judge stated, inter alia:
The judge's references to the witnesses produced at the Golochowicz hearing and to a "course of conduct" do not clearly identify particular acts of the defendant. To my mind, neither the defendant, as suggested by Justice Boyle, nor the trial judge is solely to blame for this ambiguity. The judge has an obligation to articulate reasons for imposing a sentence and to respond to defense challenges to the propriety of using certain information. The defendant, on the other hand, has a duty to raise matters of accuracy and should, as a matter of course, request rulings or findings from the judge when necessary. Here, the defendant clearly objected to the judge's consideration of alleged criminal acts which did not result in convictions, but he received no ruling or explanation from the judge in response to the objection. It is clear that the judge considered the testimony of the similar acts witnesses. However, it is not clear which allegations presented at the Golochowicz hearing were considered. Under these circumstances, this case should be remanded to the trial court for further development of the sentencing record. First, the trial court should explain with greater specificity which conduct, convictions, or charges played a role in determining the defendant's sentence. After this is done, the defendant should be given an opportunity to challenge the accuracy of those allegations regarding criminal acts for which no conviction has been obtained and upon which the original sentence was based. If the judge determines that the accuracy of the allegations has not been proven by a preponderance of the evidence, the original sentence should be vacated and the defendant resentenced.
If, on remand, the trial judge determines that acts which did not end in conviction contributed to his sentencing decision, the defendant should be permitted to exercise his right to contest the accuracy of those allegations in accordance with the American Bar Association Standards.
In People v. Walker, 428 Mich. 261, 407 N.W.2d 367 (1987), this Court set forth procedures to govern the resolution of disputes at sentencing about the proper scoring of guidelines variables. Specifically, we adopted Standard 18-6.4(c) of the American Bar Association Standards for Criminal Justice. Walker, supra, at pp. 267-268, 407 N.W.2d 367. Paragraph c of this standard requires that the prosecutor prove a disputed variable by a preponderance of the evidence once the defendant has "effectively" challenged its accuracy. Id. It is consistent with our policy decision in Walker to adopt also paragraph b of the same standard in cases where the defendant is required to rebut pending or uncharged criminal allegations. Standard 18-6.4(b) provides:
3 ABA Standards for Criminal Justice (2d ed), Standard 18-6.4(b), p. 18-448.
While Standard 18-6.4(b) stops short of requiring a trial-type hearing at sentencing because of the great cost to the state and the delay which would result in disposing of cases, it places a limit on the trial judge's discretion to consider some types of disputed information at sentencing without entertaining further proofs at the defendant's request. It should be observed that this procedure focuses on the right to rebut allegations which the judge may rely upon in sentencing, not on the right of allocution. Moreover, the need for a hearing arises only where there exist material disputes regarding facts likely to influence the court's sentencing decision which the court and the parties cannot resolve without such a hearing. 4
Because of the possibility of resentencing, it is necessary to determine whether prior acquittals must be disregarded, since the acquittal which occurred after the defendant's original sentencing would be a prior acquittal at resentencing. I agree with Justice Boyle and a number of federal decisions that the mere fact of a prior acquittal of charges whose underlying facts are properly made known to the trial judge is not, without more, sufficient reason to preclude the judge from taking those facts into account at sentencing.
While the meaning of a valid criminal conviction is clear, i.e., the jury has found the defendant guilty beyond a reasonable doubt, an acquittal does not necessarily mean that the defendant did not engage in criminal conduct. See op. p. 895 (Boyle, J.). As one court explained,
United States v. Isom, 886 F.2d 736, 738 (C.A. 4, 1989).
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Kares v. Horton
...raise the “acquitted conduct” issue on appeal. That failure, however, was not professionally unreasonable. Watts, on the federal level, and Ewing, on the state level supported decision to not pursue such a claim at the time of Petitioner's appeal. Thus, the failure to raise the issue was no......
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People v. Beck
...with a fractured set of opinions in which it is not entirely clear what rule of law commanded a majority. In People v. Ewing (After Remand) , 435 Mich. 443, 458 N.W.2d 880 (1990), there were three substantive opinions:8 Justice BRICKLEY ’s lead opinion, Justice ARCHER ’s opinion concurring ......
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People v. Callon
...an evidentiary hearing with a finding by the trial court based upon the preponderance of evidence. People v. Ewing (After Remand), 435 Mich. 443, 472, 458 N.W.2d 880 (1990) (Boyle, J.); Walker, supra at 268, 407 N.W.2d 367. "Whether that requirement is satisfied with a flat denial of an adv......
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...31, 2019, however, an updated form was to be used. [2] The prosecutor's characterization is overstated. See e.g., People v Ewing, 435 Mich. 443, 451-452; 458 N.W.2d 880 (1990) (Brickley, J.) (a jury's not guilty verdict may reflect its determination that the prosecution failed in its high b......