People Of Mi V Ralph Jones Ii (Dissenting Opinion)
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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED November 18, 2021 Plaintiff-Appellee, V No. 353359 Monroe Circuit Court LC No. 19-245517-FH RALPH JONES II, Defendant-Appellant. Before: CAVANAGH, P.J., and SHAPIRO and GADOLA, JJ. SHAPIRO, J. (dissenting). I respectfully dissent. Under People v Beck, 504 Mich 605; 939 NW2d 213 (2019), a trial court may not base a sentence on a finding that the defendant engaged in conduct of which he was acquitted. In this case, the jury acquitted defendant of charges that he had distributed drugs and convicted him of the lesser-included offense of possession. Contrary to the jury’s verdict, however, the trial court found that defendant’s conduct was “tantamount to trafficking in this town.” The majority concludes that resentencing is not required because the trial court’s reference to trafficking was “gratuitous” and that the trial court did not rely on the acquitted conduct in sentencing defendant. However, the trial court stated its belief that defendant trafficked drugs while discussing why a harsher sentence than probation was warranted: And I just can’t . . . put you on probation, it’s just a mere rewarding of everything that went on here. And quite frankly, I’m convinced there was enough of the material, the possession and things like that, that it is tantamount to trafficking in this town. There’s no question in my mind about this. Because the trial court expressly relied on its belief that defendant was trafficking drugs in justifying its sentencing decision, I would conclude that the imposed sentence was based, in part, on acquitted conduct and remand for resentencing. /s/ Douglas B. Shapiro -1-
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