Sentencing; Scoring of OV 3; Successive motions for relief from judgment under MCR 6.502(G); Consideration of acquitted conduct; People v Beck; People v Ewing; Whether Beck applied retroactively; People v Barnes; Teague v Lane; Principle that when a judicial decision announces a new rule, retroactive application does not extend to cases that have already become final

Holding that Beck’s holding is not retroactive on collateral review, the court affirmed the trial court’s denial of defendant’s successive motion for relief from judgment. He was convicted of AWIM, FIP, and felony-firearm arising out of an incident at a nightclub in which several people were shot. The trial court assessed 100 points for OV 3, and then sentenced him to 285 to 700 months for each AWIM, 3 to 5 years for FIP, and 2 years for felony-firearm. Defendant filed several successive motions for relief from judgment, arguing in the most recent motion that he was entitled to resentencing under Beck because the trial court considered acquitted conduct. He claimed the motion was not barred by MCR 6.502(G) because Beck represented “a retroactive change in law that occurred after the first motion for relief from judgment was filed’ under MCR 6.502(G)(2)(a). The trial court denied his motion, finding “he was not entitled to relief under Beck because the new rule was not retroactively applicable on collateral review.” On appeal, the court held that the trial court did not abuse its discretion by denying defendant’s successive motion for relief from judgment because Beck is not entitled to retroactive application in cases that were final at the time it was decided. Applying the federal framework, the court noted that because “Beck explicitly determined it was considering the question ‘on a clean slate,’ [it] announced a new rule of law that was not dictated by previous precedent.” And despite its “constitutional foundation, Beck did not create a new substantive rule of law warranting retroactive application on collateral review under Teague.” The court reached the same conclusion under Michigan’s retroactivity framework. “Because the rule in Beck is irrelevant to the fact-finder’s determination of guilt, it is ‘amenable to prospective application.’” In addition, “the general reliance of courts on Ewing as sanctioning the use of acquitted conduct at sentencing weighs against retroactive application of Beck.” Finally, the third factor “does not outweigh the significance of the first two factors which weigh heavily in favor of the prospective-only application of Beck.”