Michigan Supreme Court hears challenge over use of "acquitted conduct" in Wells sentencing

LANSING — The Michigan Supreme Court considered Monday whether a trial judge relied on conduct from which a jury acquitted when imposing sentence in People of the State of Michigan v. Dante Eric Wells, defense counsel Garrett Burton told the justices during a timed oral argument.

Burton, appearing for Wells through the State Appellate Defender’s Office, said the jury convicted Wells of simple possession but acquitted him of possession with intent to deliver (PWID), and that the sentencing judge nonetheless discussed evidence tied to distribution when imposing a sentence at the top of the guideline range. “A trial judge violates due process when they sentence an individual based on acquitted conduct,” Burton told the court, arguing that the judge’s comments about baggies, ledgers and cash made clear the judge had considered the acquitted conduct despite a brief on‑the‑record disclaimer.

The issue centers on the Supreme Court’s Beck line of cases limiting a sentencing court’s use of conduct of which a defendant was acquitted. Burton said Beck and related decisions require resentencing when a judge’s comments show they relied, even in part, on acquitted conduct to aggravate a sentence. He told the justices that the sentencing court here imposed a term at the top of the guidelines (46 months, the parties said at argument) and that the court’s extended discussion of distribution made any terse disclaimer ineffective.

Joellen Haas, an Ottawa County prosecutor representing the people, told the court the record does not show the jury made a specific factual determination that would amount to an acquittal on the PWID count. “The people’s position was and continues to be no,” Haas said, explaining that the verdict form contained three boxes (not guilty; guilty of possession with intent to deliver; guilty of the lesser included offense of possession) and that the jury’s selection did not explicitly resolve intent. She argued that the sentencing judge identified the possession conviction and relied on a range of permissible sentencing considerations — including the presentence investigation and the defendant’s prior record — and did not make a specific factual finding that Mr. Wells had engaged in distribution.

At argument the justices pressed both sides on line‑drawing questions. One justice posed a hypothetical where quantity alone might distinguish possession from distribution and asked whether the weight of narcotics could appear in a presentence report without creating a Beck problem. Burton and Haas both referenced the appellate test discussed in lower courts — described in argument as the “rational jury” approach used in the Court of Appeals’ Brown decision — to determine what conduct was reasonably in dispute at trial and thus may qualify as acquitted conduct. Burton acknowledged some evidence could be admissible in the PSI if not relied upon to show intent to distribute; Haas emphasized that many of the items the judge discussed (the safe, a whiteboard ledger and other items) could be relevant to the possession conviction that the jury did return.

Defense counsel also told the court that trial counsel had advanced alternative explanations for items seized at trial — for example, that baggies and scales were used in a lawful baking business and that the defendant disputed knowledge of the methamphetamine stored in the safe — and that the sentencing judge’s repeated references to distribution undermined the presumption of innocence for the acquitted charge. The prosecutor disputed that the judge aggravated the sentence on that basis and noted the judge’s subsequent explanations in post‑sentencing motions and the record.

Neither side asked for an immediate remedy during argument. Burton advised that resentencing would be the appropriate remedy for a Beck violation; Haas questioned whether remand would be appropriate in the posture of this record if the court concluded there was error. The court announced the case submitted at the close of argument.

The argument addressed only legal questions about the use of acquitted conduct in sentencing; no new evidence was introduced during the Supreme Court session and the court did not issue an opinion at the hearing.