People of Michigan v. Colby Anthony Skippergosh

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, FOR PUBLICATION

October 28, 2024

Plaintiff-Appellee, 12:47 PM

v No. 364127

Emmet Circuit Court

COLBY ANTHONY SKIPPERGOSH, LC No. 2022-005320-FH

Defendant-Appellant.

Before: RIORDAN, P.J., and YOUNG and WALLACE, JJ.

RIORDAN, P.J. (concurring in part and dissenting in part).

I concur with the majority to the extent that it affirms defendant’s convictions. However,

I respectfully dissent to the extent that it vacates his sentence and remands to the trial court for

resentencing.

In my view, the trial court did not err by scoring offense variable (OV) 3, MCL 777.33.

The sentencing offense for OV 3 in this case was domestic violence, MCL 750.81(5), which

necessarily includes “an assault or an assault and battery.” People v Cameron, 291 Mich App 599,

614; 806 NW2d 371 (2011). “[A] simple criminal assault is made out from either an attempt to

commit a battery or an unlawful act which places another in reasonable apprehension of receiving

an immediate battery.” People v Jones, 443 Mich 88, 92; 504 NW2d 158 (1993) (cleaned up). In

this case, the evidence shows that defendant dropped the baby during his altercation with W.F. in

December 2021, which required taking the baby to the hospital for treatment. The fact that

defendant dropped the baby while intoxicated clearly showed a lack of care for the well-being of

others in the apartment, to the point where physical injury was a possibility. Further, the fact that

defendant dropped the baby during his ongoing heated argument with W.F., which was

interspersed with physical violence against W.F., likely contributed to the fear that W.F. felt that

day. That is, the fact that defendant dropped the baby likely contributed to the fact that W.F. was

placed in “reasonable apprehension of receiving an immediate battery” that day. See id.

Consequently, the trial court did not err by ruling that the sentencing offense of domestic violence

caused “[b]odily injury requiring medical treatment . . . to a victim.” MCL 777.33(1)(d). Here,

the victim was a baby. I would therefore affirm the trial court’s calculation of the sentencing

guidelines.

-1-

More importantly, I disagree with defendant that the trial court erred by sentencing him on

the basis of acquitted conduct. At sentencing, the trial court summarized the relevant facts of the

case and defendant’s personal history, briefly stating when doing so that “[i]t is supported that

Defendant attempted to choke his living-together partner, [W.F.], and the mother of his son [], and

that he hit her . . . .” Defendant, however, was acquitted of the charge of attempted assault by

strangulation, MCL 750.84(1)(b); MCL 750.92. The majority thus implies that the trial court may

have violated People v Beck, 504 Mich 605; 939 NW2d 213 (2019), acknowledging that although

“[w]e cannot say for certain, based on this record, that Skippergosh’s within-guidelines minimum

sentence of 55-months minimum was higher as a result of that consideration,” the problem in Beck

“was with the process of considering that [acquitted] conduct at all, not its outcome . . . .”

While I acknowledge that the majority’s understanding of Beck is reasonable, I am not

certain that it is correct. As explained by the Connecticut Supreme Court in State v Langston, 346

Conn 605; 294 A3d 1002 (2023), courts that have addressed acquitted conduct at sentencing fall

within three categories: (1) most states find no constitutional violation when a sentencing court

considers acquitted conduct or uses acquitted conduct to aggravate the sentence, (2) a minority of

states completely prohibits any consideration of acquitted conduct at sentencing, and (3) another

minority of states prohibits consideration of acquitted conduct only when it is used to aggravate

the sentence. Id. at 630-633. The majority seemingly understands Beck as falling within the

second category.

Beck indeed stated that “reliance on acquitted conduct at sentencing is barred by the

Fourteenth Amendment.” Beck, 504 Mich at 629. From this statement, it might be inferred that

Beck falls within the second category. However, other statements within Beck indicate that the

decision should be understood as falling within the third category. See id. at 613-614 (framing the

issue before the Court as whether “the trial court’s reliance on conduct of which [the defendant]

was acquitted to increase his sentence violates his constitutional rights under the Sixth and

Fourteenth Amendments of the United States Constitution”); id. at 629 (holding that “[b]ecause

the sentencing court punished the defendant more severely on the basis of the judge’s finding by

a preponderance of the evidence that the defendant committed the murder of which the jury had

acquitted him, it violated the defendant’s due-process protections”). In fact, footnote 24 of Beck

strongly implies that the Beck majority itself understood and intended the decision to be limited to

the third category. See id. at n 24 (“Thus, to the extent the distinction the dissent wants to draw

between sentencing a defendant more harshly based on the conclusion that the defendant

committed an offense of which he was acquitted and sentencing a defendant ‘while considering

conduct that supported the acquitted charge’ is a meaningful one (and we are not convinced it is),

this case plainly involves the former.”). Therefore, in my view, applying ordinary principles of

judicial precedent, Beck properly is understood as falling within the third category. See Garner et

al., The Law of Judicial Precedent (St Paul: Thomson/West, 2016), p 91 (“Each such [legal] norm

requires careful and individualized scrutiny of the scope intended by the authoring court.”).1

1

I acknowledge that Langston itself categorizes Beck as falling within the second category. See

Langston, 346 Conn at 632. However, for the reasons explained herein, I doubt that this is correct.

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As a result, defendant cannot be entitled to relief because, as the majority recognizes, there

is nothing to establish that the trial court imposed a “higher” sentence as a result of its alleged

consideration of acquitted conduct. Consequently, defendant has not satisfied his burden under

the plain-error standard because he does not show that he was prejudiced by the trial court’s alleged

consideration of acquitted conduct. See People v Carines, 460 Mich 750, 763; 597 NW2d 130

(1999) (“It is the defendant rather than the Government who bears the burden of persuasion with

respect to prejudice.”) (quotation marks and citation omitted). A contrary conclusion would both

expand the scope of Beck itself and disregard the applicable standard of review. Indeed, the

authoring justice of Beck herself implied that affording a defendant relief in these circumstances

is unwarranted. See People v Stokes, 507 Mich 939, 939-940 (2021) (MCCORMACK, C.J.,

concurring) (“Thus, the trial court did not punish the defendant more severely by finding by a

preponderance of the evidence that he committed the acquitted offenses and sentencing him

accordingly. And the defendant did not preserve these arguments in the trial court, so our review

is limited to plain error. Since Beck does not plainly apply, the defendant cannot prevail.”)

(footnote omitted).2

Simply put, my primary concern in this case is not with the majority, which has reasonably

understood Beck as prohibiting any consideration of acquitted conduct whatsoever at sentencing,

but with a decision that we are bound to follow notwithstanding its use of inconsistent and

seemingly conflicting language.3 As illustrated by this particular case, Beck may be understood as

creating some type of unusual, bright-line rule of structural error whereby the prohibited

consideration of an alleged fact by the sentencing court automatically entitles a defendant to relief,

regardless of whether that consideration actually affected the defendant’s sentence, and regardless

of whether the issue was preserved. In other words, while a rule of automatic reversal might be

warranted in cases involving, for example, an actually biased sentencing judge, see Rose v Clark,

478 US 570, 577; 106 S Ct 3101; 92 L Ed 2d 460 (1986), I discern no principled reason why such

a rule would apply in the context of the matter before us. Applying such a rule here is contrary to

the manner in which our criminal-justice system typically operates, where improper consideration

of an alleged fact by the factfinder requires application of a preservation-dependent harmless-error

standard before a defendant is entitled to relief. See, e.g., People v Lukity, 460 Mich 484, 495-

496; 596 NW2d 607 (1999); Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed

2d 674 (1984).

2

In any event, I find no error whatsoever. The trial court prefaced its statement about attempted

choking with the qualifier “[i]t is supported that.” Thus, the most straightforward understanding

of the trial court’s statement is that it was noting precisely what conduct the trial evidence indicated

occurred. And, there can be little doubt that the trial court correctly summarized the evidence in

this regard—if the evidence did not show attempted choking, that charge never should have been

submitted to the jury. Thus, any objection by trial counsel at sentencing would have been

meritless. See People v Isrow, 339 Mich App 522, 531; 984 NW2d 528 (2021).

3

Naturally, because the overwhelming majority of courts do not prohibit the consideration or use

of acquitted conduct at sentencing, it is difficult to identify persuasive authority that would apply

in this context.

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For these reasons, I do not understand Beck as completely prohibiting any consideration of

acquitted conduct at sentencing because a careful reading of that decision indicates that it only

prohibits using acquitted conduct to aggravate a sentence. Moreover, defendant has not shown

that he is entitled to relief under the plain-error standard of review that we are required to apply to

unpreserved constitutional errors. Accordingly, I would affirm the trial court in its entirety.4

/s/ Michael J. Riordan

4

Finally, while not addressed by the majority, I would conclude that the 55-month minimum

sentence in this case was reasonable and proportionate. See People v Posey, 512 Mich 317, 352;

1 NW3d 101 (2023). Defendant has about two dozen previous convictions, many of them for

assaultive conduct including, but not limited to, domestic violence. Further, as described above,

the evidence showed that defendant has committed domestic violence against W.F. on at least two

occasions, and on the day in question, he was so intoxicated that he dropped his baby, which

required treatment at the hospital. There is nothing to suggest that defendant is either willing or

able to conduct himself within the confines of the law. Moreover, I agree with the trial court that

“the story that [he] gave was almost laughable in terms of what [he] tried to convince the jury

actually happened.” Under these circumstances, the 55-month minimum sentence, which was

within the guidelines range, was reasonable and proportionate.

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