Sentencing; Consideration of acquitted conduct; People v Beck; Scoring of OV 13; MCL 777.43(1)(c)

Holding that the trial court relied on acquitted conduct in sentencing defendant, the court vacated his sentence and remanded for resentencing. He was convicted of two counts of CSC II but acquitted of a third count. He was sentenced to concurrent terms of 57 months to 15 years. He argued that the trial court considered acquitted conduct in scoring OV 13 when sentencing him, “and this error aggravated” his recommended minimum sentencing range. The court agreed. It noted that a “trial court may consider uncharged or dismissed conduct” in scoring OV 13. But under Beck, “unlike dismissed charges or uncharged conduct, once a defendant is acquitted of a crime, a defendant is presumed innocent of that crime, and ‘conduct that is protected by the presumption of innocence may not be evaluated using the preponderance-of-the-evidence standard without violating due process.’” The court concluded from its review of the sentencing hearing “that the trial court expressly relied on the three charged offenses—including the acquitted offense—to score OV 13 at 25 points[.]” The record showed the prosecution asked it to rely on the three charged CSC II counts to score OV 13. The trial court referred “only to ‘the three’ and ‘all three’ counts to score OV 13.” Thus, the court found that it “expressly punished defendant as if he were convicted of all three counts . . . in contravention of Beck.” Given that the scoring of 0 points for OV 13 would have reduced defendant’s minimum guidelines range to 12 to 24 months, and the trial court sentenced him above that range, he was entitled to resentencing.