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Michigan Supreme Court Says Prisoner’s Possession of Cell Phone by Itself Doesn’t Show Threat to Security

by David M. Reutter

On April 28, 2022, the Michigan Supreme Court held that possession of a cell phone by a prisoner may not justify an enhanced sentence under the state criminal code unless the facts also establish that the prisoner’s conduct actually threatened prison security. That drew a sharp dissent from the Court’s minority of justices, which argued that cell phone possession by a prisoner always threatens institutional security, even if the phone is inoperable.

The case involved Hamin Lorenzo Dixon, who was serving time at the state’s Kinross Correctional Facility for convictions of attempted murder, poisoning, and witness intimidation, when he was found by guards in a bathroom stall with a cell phone nearby. A search of his shared cell then uncovered a cell phone charger, and Dixon was charged with possession of a cell phone in violation of MCL 800.283(a). He pleaded guilty to attempted possession, in exchange for which the prosecution dismissed the possession charge and withdrew a request for habitual-offender sentencing.

A Presentence Investigation Report proposed assessing 25 points under Offense Variable (OV) 19 because “[t]he offender by his or her conduct threatened the security of a penal institution,” as laid out in MCL 777.49(a). That also altered his recommended sentence from zero–to–17 months, to 5–to–17 months. The trial court then gave Dixon a minimum of 11 months in prison and a maximum of 30 months.

After sentencing, Dixon moved to correct the sentence as invalid, arguing there was no evidence he used the cell phone to threaten prison security — in fact, no evidence existed that the cell phone even worked. The trial court denied the motion. Dixon appealed to the Court of Appeals, which affirmed his conviction. Dixon then appealed to the Michigan Supreme Court.

Taking up the case, the Court began by parsing MCL 777.49(a) to determine it had two standards: A required showing that (1) Dixon engaged in some conduct and (2) that the conduct threatened the security of the prison. But the high court found no evidentiary support to satisfy this standard.

Recognizing that possession of a cell phone in prison is a crime, and possession — even constructive possession, such as here — could be conduct for purposes of scoring under OV 19, the Court said it depended on what the prisoner did with it. “[D]etermining whether cell phone possession threatens the security of a prison requires assessment of the accused’s conduct beyond the possession itself,” the Court said. “That is, unlike possession of a weapon, the nature of the cell phone possession is important to determining whether it ‘threatened the security of a penal institution’ because cell phones have many nonthreatening uses.”

“No evidence showed that [Dixon] used the phone, was planning to use it, or even held it,” the Court continued. “In fact, no facts showed that the phone was operable.” As such, there was no proof that Dixon’s constructive possession threatened the security of the prison. Thus the opinion of the Court of Appeals was reversed and the case remanded to the trial court for resentencing.

In his dissent, Justice David Viviano was joined by Justice Brian Zahra in calling the majority’s conclusion “puzzling.”

“Common sense and the overwhelming consensus of legal authorities tell us that prisoners who possess cell phones within the prison walls pose an obvious danger to prison staff and other prisoners, whether or not the phone has been used or is being used at the precise moment of discovery to commit a new crime,” Viviano wrote.

In a separate dissent, Justice Richard Bernstein took issue with the bifurcation of the underlying statute into two requirements, as the majority did.

“Instead of focusing somewhat vaguely on conduct as the distinguishing factor, I wonder whether focusing on the statute’s use of the word ‘threatened’ might shine more light on the proper application of OV 19,” the Justice said, arguing that “an element of intent would certainly have the benefit of being grounded in the text of the statute, and it would require a showing of more than mere possession.”

Dixon was represented on appeal by attorney C. Nicholas Curcio of his eponymous law firm in Nunica. See: People v. Dixon, 2022 Mich. LEXIS 802. 

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Related legal case

People v. Dixon