It would be tempting to write on the nine new acquitted conduct cases, but that might miss the bigger point. Yes, we can talk about why trial judges continue to consider acquitted conduct in contravention of People v Beck, 504 Mich 605 (2019), but the more interesting question should be: Why do we allow the presentence report to be written based on the police reports, with damaging information that is not always accurate and a description of conduct for which the jury acquitted? And how does a judge not consider this information at sentencing?

I can’t answer the second question, but there may be partial answer to the first. I’m not suggesting that we wait for a decision from the appellate courts that would ban acquitted conduct from the presentence report. And I’m not asking the probation agent to attend trial or asking the parties to draft a description of the offense – these two options are unrealistic. But there is another way: defense attorneys can attend the presentence interview. 

That’s the important point: defense attorneys can and arguably should attend the presentence interview. What better way to influence the agent’s description of the offense than to attend the interview in an effort to shape the narrative? And when it comes to acquitted conduct, why not spend time with the presentence investigator in an effort to acquaint them with trial testimony and why the jury rejected some charges? MCR 6.425(A)(2) requires the “probation officer . . . give the defendant’s attorney notice and a reasonable opportunity to attend the presentence interview,” so why not take advantage of the opportunity, and better serve your client?

It’s common sense that if you want a written document to reflect your version of a controversy, you work with the person who must draft the document. As reported in an earlier column in this same newsletter (July 2021), defense attorneys who attend the federal presentence interview swear by the process and the value it brings to the final report. Many feel it amounts to ineffective assistance of counsel not to attend the presentence interview.

This all goes hand in hand with a recent Court of Appeals opinion that held the presentence report must include information that a jury has acquitted of some of the conduct described in the agent’s description of the offense because to allow otherwise permits inaccurate information to be sent to the Michigan Department of Corrections (MDOC). But how is the presentence investigator to know the basis of acquittal and what conduct should be cordoned off? There may be a “rational-jury” analysis for judges and attorneys, but the presentence investigator may be unfamiliar with this analysis and is rarely present as testimony and evidence are presented during trial.  That’s where the defense attorney comes in. Defense counsel knows the evidence, knows what was put into dispute at trial, and can explain the basis of the acquittal(s).  If the reason for acquittal is unclear, or if only to avoid potential claims of bias, defense counsel can offer the most logical basis for acquittal and then email the prosecutor for confirmation, copying the presentence investigator in the process. In other words, defense counsel guides the narrative.

No one expects the MDOC to change the way it prepares presentence reports, and the law is not moving quickly when it comes to a ban on acquitted conduct in the report. But there is an available opportunity to influence the process. When it comes to the agent’s description of the offense, defense attorneys can shape the narrative and be the guide by attending the presentence interview.

Endnotes

¹ People v Motten, ___ Mich App __ (Docket No. 363044, 4/18/24) (Beck decision not retroactive); People v Johnson, ___ Mich App ___ (Docket No. 362236, 3/14/24) (Beck does not apply to conduct leading to a hung jury); People v Sherill, ___ Mich App ___ (Docket No. 360133, 9/12/24) (no reliance on acquitted conduct); People v Kilgore, __ Mich App ___ (Docket No. 365881, 10/16/24) (improper reliance on acquitted conduct); People v Skippergosh, __ Mich App ___ (Docket No. 364127, 10/28/24) (improper reliance on acquitted conduct); People v Knepper, __ Mich App ___ (Docket No. 363191, 10/28/24) (presentence report must indicate where there is acquitted conduct); People v Ventour, ___ Mich App ___ (Docket No. 363922, 12/28/23) (no error scoring OVs 1 and 2 where court relied on multiple offender instruction rather than acquitted conduct)’ People v Jackson, ___ Mich App ___ (Docket No. 366078, 8/29/24) (error in scoring OVs 1 and 2 based on acquitted conduct); People v Boukhatmi, ___ Mich App ___ (Docket No. 363998, 4/4/24) (error in scoring OV 13 based on acquitted conduct). 

² See People v Stokes, 333 Mich App 304 (2020) (sentencing judge may consider presentence report that contains acquitted conduct so long as the judge does not rely on the acquitted conduct in its sentencing decision), and People v Monte, 510 Mich 937 (2022), 513 Mich 1028 (2024) (leave denied after hearing oral argument on defense challenge to acquitted conduct in the presentence report).

³ People v Knepper, ___ Mich App ___ (Docket No. 363191, 10/28/24).

⁴ People v Brown, 339 Mich App 411 (2021).

Anne Yantus
Michigan Sentencing PLLC

Anne Yantus is a sentence consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. Due to the volume of inquiries, Anne is not able to respond to pro bono requests for assistance or analysis of individual fact situations.

Subscriber Comments

• You must be a subscriber to view comments