AFTER REMAND
Brickley, J.
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.
i
Defendant Ewing was convicted by a jury of [447]*447first-degree criminal sexual conduct. The opinion for reversal accurately summarizes the testimony given at trial and at the pretrial Golochowicz1 hearing, as well as the appellate history of this case. Post, pp 463-468 (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 complainant 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 [448]*448the 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:
As a part of this overall process a Golochowicz Hearing was held in which I very vividly had to hear the testimony of other victims who claimed you assaulted them in some manner or form. I had to make that ruling or determination relative to admissibility of similar testimony in this trial.
It’s obvious to me you have carried on a course of conduct involving attacks on young women over a periods [sic] of five years.
II
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, [449]*449as 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.
hi
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 accu[450]*450racy of those allegations in accordance with the American Bar Association Standards.
In People v Walker, 428 Mich 261; 407 NW2d 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, pp 267-268. 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:
[Where there is a need for further evidence] the sentencing court should conduct a hearing with respect to all material factual disputes arising out of any presentence reports or the evidentiary proffers of the parties. Although the sentencing process should not become a "minitrial,” occasions will arise when, in order to ensure that a sentence is not founded on material misinformation, the sentencing court should permit the parties to subpoena witnesses and to cross-examine persons who rendered [such] reports to the court and persons providing information contained in such reports. Hearsay and similar types of information inadmissible at trial may be received in the discretion of the court, but evidence offered by the parties should be subject to cross-examination.
Free access — add to your briefcase to read the full text and ask questions with AI
AFTER REMAND
Brickley, J.
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.
i
Defendant Ewing was convicted by a jury of [447]*447first-degree criminal sexual conduct. The opinion for reversal accurately summarizes the testimony given at trial and at the pretrial Golochowicz1 hearing, as well as the appellate history of this case. Post, pp 463-468 (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 complainant 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 [448]*448the 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:
As a part of this overall process a Golochowicz Hearing was held in which I very vividly had to hear the testimony of other victims who claimed you assaulted them in some manner or form. I had to make that ruling or determination relative to admissibility of similar testimony in this trial.
It’s obvious to me you have carried on a course of conduct involving attacks on young women over a periods [sic] of five years.
II
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, [449]*449as 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.
hi
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 accu[450]*450racy of those allegations in accordance with the American Bar Association Standards.
In People v Walker, 428 Mich 261; 407 NW2d 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, pp 267-268. 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:
[Where there is a need for further evidence] the sentencing court should conduct a hearing with respect to all material factual disputes arising out of any presentence reports or the evidentiary proffers of the parties. Although the sentencing process should not become a "minitrial,” occasions will arise when, in order to ensure that a sentence is not founded on material misinformation, the sentencing court should permit the parties to subpoena witnesses and to cross-examine persons who rendered [such] reports to the court and persons providing information contained in such reports. Hearsay and similar types of information inadmissible at trial may be received in the discretion of the court, but evidence offered by the parties should be subject to cross-examination. The guiding principle should be the provision of an effective opportunity for both parties to rebut all allegations likely to have a significant effect on the sentence imposed. [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 [451]*451a 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
rv
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.
A
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 post, pp 473-474 (Boyle, J.). As one court explained,
[452]*452A verdict of acquittal demonstrates only a lack of proof beyond a reasonable doubt; it does not necessarily establish the defendant’s innocence. . . . The jury needed only a reasonable doubt to acquit or quite plausibly it may have returned its favorable verdict because of lenity. [United States v Isom, 886 F2d 736, 738 (CA 4, 1989).]
Any number of reasons not related to the defendant’s factual guilt or innocence may be hypothesized to explain a jury’s decision to acquit. For example, a jury may acquit a factually guilty defendant because the prosecution was, for one reason or another, unable to present its best evidence, as would be the case where a strong witness died or disappeared before trial, yet sufficient evidence remained to persuade the prosecutor to proceed to trial. To take another example, it is also true, unfortunately, that a jury may acquit a factually guilty defendant because of confusion with regard to the judge’s instructions.5
Under our present framework of discretionary sentencing, sentences are based more on an assessment of the offender than on the offense. Were the wisdom of this system a judicial rather than a legislative matter, then arguments in favor of sentencing convicted criminals solely on the basis of the conduct for which they have been convicted could well prove persuasive. For better or for worse, however, our discretionary sentencing scheme, like the sentencing guidelines we have implemented to assist the judges who must adhere [453]*453to that scheme, requires the use of relevant, accurate information about the offender, even though that information does not necessarily relate to the conduct which resulted in conviction and exposure to criminal punishment.
In sum, I agree with the court in United States v Juarez-Ortega, 866 F2d 747, 749 (CA 5, 1989):
Although the jury may have determined that the government had not proved all of the elements of the weapons offense beyond a reasonable doubt, such a determination does not preclude consideration of underlying facts of the offense at sentencing so long as those facts meet the reliability standard. [Emphasis added.][6]
B
This is not to say that the sentencing judge may rely on the mere fact that the defendant was once acquitted of, and therefore had necessarily been bound over on, criminal charges. This issue is not before us today. Nor need we decide whether a bindover on criminal charges necessarily means that the underlying facts have been proven by a preponderance of the evidence in the absence of an effective challenge by the defendant. The sentencing judge in this case was not confronted by the mere fact of a pending charge, an uncharged allegation of criminal conduct, or a previous acquittal. Rather, he took testimony from several witnesses at the Golochowicz hearing, one of whom was permitted to testify at trial and was cross-[454]*454examined. I do not believe that the judge, who was entitled — indeed obligated — to consider a broad range of other information in attempting to impose an appropriate, individualized sentence, should be made to disregard this sworn testimony which he witnessed in his own courtroom.
As noted above, if the judge relied on allegations contained in the testimony of complainant No. 3, then on remand the defendant should be able to test the accuracy of those allegations. See § in. The defendant should not, however, be able to preclude the judge from basing his sentence on this testimony. Since the judge on remand will be aware that a prior jury declined to find the defendant guilty beyond a reasonable doubt in the case involving complainant No. 3, he may hear argument from the parties and decide how to view this testimony in light of the acquittal. Moreover, because of the double jeopardy bar, the defendant will be unlikely to feel pressure not to effectively challenge the accuracy of the allegations underlying what will be, in the event of resentencing, a prior acquittal.
In this context, it is important to bear in mind that we are not presented with the issue whether a defendant may be punished for a crime for which no conviction was obtained; this is clearly unconstitutional. Instead, we are called upon only to determine whether trial judges may, in the exercise of the broad discretion conferred upon them in our sentencing scheme, consider relevant and reliable facts about offenders when selecting appropriate punishment within the legislatively established range for offenses whose commission has been proven beyond a reasonable doubt.
c
In my judgment, it is unnecessary to consider [455]*455what relief, if any, is appropriate when a sentencing court considers facts underlying charges pending at the time of sentencing which thereafter end in acquittal. The defendant in this case is entitled to a remand for reasons other than the sentencing judge’s reliance on such facts. If the sentencing judge on remand determines that he relied at the original sentencing on the testimony of complainant three, then the defendant, as already discussed, should be able to use his now prior acquittal to challenge the accuracy of the allegations contained in that testimony.
Finally, I am concerned that, in cases involving a sentencing judge’s reliance on facts underlying pending charges, a defendant’s right to remain silent with respect to pending charges may conflict with the right to contest the accuracy of information upon which a sentence is based. I believe that we should save consideration of the procedures necessary to uphold both rights for an appropriate case.
v
In sum, it is my judgment that the sentencing judge should not be precluded from basing a sentence on facts underlying prior convictions, pending charges, and uncharged offenses — each of which was present in this case — where those facts have been developed through sworn testimony presented before that very judge. In the case of pending charges, uncharged offenses, and prior acquittals, however, the defendant must be afforded an opportunity to test the accuracy of those facts. Because the record does not reveal the extent to which the judge relied upon alleged conduct by the defendant for which he has not been [456]*456convicted, this case should be remanded to the trial court for further development of the sentencing record. What relief, if any, should be given a defendant whose sentence is based on conduct which results in an acquittal after sentencing, and what, if any, procedures should be adopted to protect the defendant’s rights to remain silent regarding pending charges and to effectively challenge the accuracy of allegations concerning such charges, are questions to be answered in future cases.