People v. Daniel

609 N.W.2d 557, 462 Mich. 1

Opinions

Per Curiam.

The defendant was convicted of delivering between 50 and 225 grams of cocaine, which presumptively requires a prison term of ten to twenty years. The trial court concluded that there were substantial and compelling reasons for departing from the statutory mandate, however, and imposed a prison term of five to twenty years. We agree with the dissenting judge in the Court of Appeals that the trial court considered an inappropriate factor in concluding that a departure was warranted. We thus reverse and remand to the trial court for resentencing.

I

The defendant was arrested in November 1996 and charged with delivering cocaine on four different occasions to an undercover police officer. A jury convicted him of one count of delivery of 50 grams or more but less than 225 grams of cocaine, and three counts of delivery of less than 50 grams of cocaine. MCL 333.7401(2)(a)(iii), 333.7401(2)(a)(iv); MSA 14.15(740l)(2)(a)(iii), 14.15(7401)(2)(a)(iv).

The presumptive penalty for delivery of 50 or more but less than 225 grams of cocaine is a mandatory prison term of ten to twenty years. There is an exception, however:

The court may depart from the minimum term of imprisonment authorized under subsection (2)(a)(ii), (iii), or (iv) if the court finds on the record that there are substantial and compelling reasons to do so. [MCL 333.7401(4); MSA 14.15(7401)(4).

Footnotes

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[1]

In the instant case, the trial court concluded that there were substantial and compelling reasons for departure, and imposed a prison term of five to ten years for delivery of 50 or more but less than 225 grams of cocaine. With respect to the three counts of delivery of less than 50 grams of cocaine, the court sentenced the defendant to serve consecutive² prison terms of one to twenty years.³

The prosecutor appealed to the Court of Appeals, arguing, among other things, that the trial court improperly had considered the “remorse” of the defendant in departing from the mandatory sentence. The Court of Appeals affirmed, however, with Judge Whitbeck dissenting.⁴

The prosecutor appealed to this Court.

n

In concluding that there were substantial and compelling reasons in the instant case for departing from the presumptively mandatory sentence of ten to twenty years prescribed by the Legislature, the trial court first noted that the defendant did not have a prior record. The court then stated:

I’m also very impressed by your letter of remorse. I am impressed by the remorse that you’ve shown. So many of the people, Attorney Hand [the assistant prosecutor], who come before me when I sentence them over the years, their only comment was, “I’m going to appeal you, Judge.” That’s what I get. There is a man that has not mentioned that; of course, he has the right to. But he said he’s very sorry. And remorse is very important to the re-establishment and to behavior modification.

Before imposing sentence, the trial court also noted that the defendant had provided assistance to police, that he had strong family support, and that he was only seventeen at the time of his offense.

The Court of Appeals held that the trial court did not clearly err in finding that there were “substantial and compelling factors” that warranted a departure from the statutory mandate in this case. Neither did the trial court abuse its discretion in determining that those “properly identified factors” constituted substantial and compelling reasons to depart, the Court said.

Writing in dissent, Judge Whitbeck concluded that a remand for resentencing was necessary because this Court has specified that a defendant’s expression of remorse is a subjective factor that a trial court may not consider in determining whether a departure from the sentence mandated by statute is justified. People v Fields, 448 Mich 58, 69, 80; 528 NW2d 176 (1995). The dissent observed that, although the trial court also considered appropriate objective and verifiable factors in the instant case, the appropriate remedy under Fields⁵ was to remand for resentencing “with only objective and verifiable factors to be considered by the trial court in determining whether to depart downward from the generally mandatory minimum sentence . . . .”

in

We agree with Judge Whitbeck that a remand is necessary. This Court held in Fields that only objective factors that are capable of verification may be used to assess whether there are substantial and compelling reasons to deviate from the minimum term of years imposed by the Legislature for certain drug offenses. In so doing, we adopted the basic tenets set forth by a special panel of the Court of Appeals⁶ in People v Hill, 192 Mich App 102; 480 NW2d 913 (1991).⁷

This Court emphasized in Fields that the Legislature, in an effort to deter drug-related crime, intended that only in exceptional cases should . sentencing judges deviate from the minimum prison terms mandated by statute. We listed examples of objective and verifiable factors that would be appropriate to consider in determining whether a departure is warranted: (1) mitigating circumstances surrounding the offense, (2) the defendant’s prior record, (3) the defendant’s age, and (4) the defendant’s work history. We also said that it would be proper to consider factors that arose after the defendant’s arrest, such as cooperation with law enforcement officials.⁸

We expressly disapproved, however, considering a defendant’s expression of remorse in determining whether to depart from the minimum sentence required by statute. In Fields, as in the instant case, “remorse” was one of the factors that the trial court cited in explaining the departure.⁹

As Judge Whitbeck emphasized, the trial court in the instant case did not rely solely on the defendant’s remorse in reaching its departure decision, but also listed several objective and verifiable factors. However, as we explained in Fields:

Sentencing normally is not a job for the appellate court, the usual procedure being to send the case back to the trial judge for resentencing if it is found that the sentence is in some respect deficient. It is unclear whether the trial judge in this case would have found substantial and compelling reasons to deviate from the statutory minimum solely on the basis of objective and verifiable factors. [448 Mich 80 (internal citation omitted).]

Accordingly, as in Fields, it is necessary to remand this matter for the trial court to determine whether there are substantial and compelling reasons to deviate, when only appropriate factors are considered. In this regard, we emphasize that it is not sufficient sim ply to identify objective and verifiable factors. As Justice Young explained, in writing for a unanimous panel of the Court of Appeals in People v Johnson (On Remand), 223 Mich App 170, 173-174; 566 NW2d 28 (1997):

Given the underlying legislative intent to insure that drug traffickers receive prescribed sentences unless there are exceptional circumstances justifying the deviation, Fields does not authorize the mere listing of garden variety “factors,” even objective and verifiable ones, as a means of complying with legislative intent. Accordingly, we reemphasize that the simple iteration of objective and verifiable factors alone is insufficient to meet the statutory standard: the sentencing court must also specifically articulate the reasons why the factors it identifies and relies upon collectively provide “substantial and compelling” reasons to except the case from the legislatively mandated regime.

IV

We briefly respond to the dissenting opinions in this Court. The dissenters express disagreement with—and would overrule—our decision in Fields, supra at 90, that factors in support of a downward departure under MCL 333.7401(4); MSA 14.15(7401)(4) must be objective and verifiable. We decline to overrule Fields, as we believe it was properly reasoned.

First, and most importantly, we simply believe that the decision in Fields was correct. Moreover, while not dispositive to our decision, we do note the obvious fact that hundreds, if not thousands, of sentencing decisions for drug-related crimes subject to generally mandatory minimum sentences under MCL 333.7401; MSA 14.15(7401) have been made since the release of Fields. The trial courts imposing these sentences have presumably attempted to comply with Fields in deciding whether to undertake a downward departure under MCL 333.7401(4); MSA 14.15(7401). In light of this widespread reliance on Fields, overruling that decision could create havoc in the criminal justice system.

The precise meaning of the phrase “substantial and compelling reasons” as used in MCL 333.7401(4); MSA 14.15(7401) (4) is hardly self-evident. Thus, judicial construction is appropriate. People v Valentin, 457 Mich 1, 5-6; 577 NW2d 73 (1998). With regard to the meaning of the terms “substantial” and “compelling,” the Fields Court stated:

Statutes should be interpreted according to the common and approved usage of any undefined words within them. MCL 8.3a; MSA 2.212(1). Webster’s New World Dictionary, Third College Edition defines “substantial,” in relevant part, as, “2 real; actual; true; not imaginary 3 strong; solid; firm; stout 4 considerable; ample; large 5 of considerable worth or value; important . . . .” It defines “compelling,” in relevant part, as, “irresistibly or keenly interesting, attractive, etc.; captivating . . .

From these definitions it is evident that the words “substantial and compelling” constitute strong language. The Legislature did not wish that trial judges be able to deviate from the statutory minimum sentences for any reason. Instead, the reasons justifying departure should “keenly” or “irresistibly” grab our attention, and we should recognize them as being “of considerable worth” in deciding the length of a sentence.

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In this context “substantial and compelling” cannot acquire a meaning that would allow trial judges to regularly use broad discretion to deviate from the statutory minimum. Such an inteipretation would defeat the intent of the stat ute. Rather, it is reasonable to conclude that the Legislature intended “substantial and compelling reasons” to exist only in exceptional cases. [Fields, supra at 67-68.]

Accordingly, we agree with Fields that for a reason in support of a downward departure to be “substantial and compelling” it must be objectively verifiable rather than requiring assessment by the subjective impression of a sentencing judge. Without such a limitation, appellate courts could not assure that downward departures are only based on substantial and compelling reasons because a departure could be made for reasons, such as a trial judge’s subjective acceptance of a defendant’s protestations of remorse, that cannot be objectively measured in terms of their strength as mitigating factors. It is easy to envision the lack of an objective and verifiable factor requirement leading to widespread, rather than narrowly limited, departures from generally mandatory minimum sentences.

Contrary to the position taken by Justice Cavanagh in his dissent, the trial court’s consideration of the defendant’s expression of remorse in this case was violative of Fields. The Fields Court expressly referred to a defendant’s expression of remorse as a factor that may not be considered in undertaking a downward departure. Id. at 69, 80. This is because an appellate court cannot effectively or objectively review the sincerity of such an expression of remorse. The trial court’s remarks at sentencing make clear that it heavily considered the defendant’s expression of remorse as a factor in support of its downward departure. After the trial court stated its intention to undertake a downward departure and began justifying that decision, it referred to being impressed by defendant’s “letter of remorse.” Further, after discussing remorse, the trial court even referred to the defendant’s having assisted the police as another substantial and compelling reason for departure. This particularly highlights the trial court’s clear reliance, contrary to Fields, on the defendant’s expression of remorse as a factor in support of its downward departure.

v

For the reasons stated by the dissenting judge in the Court of Appeals, we reverse the decision of that Court and remand this matter to the trial court for resentencing with respect to the defendant’s conviction for delivery of 50 or more but less than 225 grams of cocaine.¹⁰

Kelly, Taylor, Corrigan, Young, and Markman, JJ., concurred.

1 The statute has been amended by 1996 PA 249 and 1998 PA 319, but the changes do not affect this case.