People v. Windall Hill

480 N.W.2d 913, 192 Mich. App. 102

• Court: Michigan Court of Appeals
• Decided: November 22, 1991
• Docket: Docket 139790
• Status: Published

Opinions

Shepherd, J.

This appeal presents the first opportunity for this Court to employ the special panel conflict resolution provisions of Administrative Order No. 1990-6, 436 Mich lxxxiv (1990). On July 15, 1991, we granted the petition of the Oakland County Prosecutor to convene a special panel of this Court:

The Court orders that the petition to convene a special panel pursuant to Administrative Order No. 1990-6 is granted and the prior opinion in docket No. 126060 is vacated.

The question in conflict to be resolved is:

Whether substantial and compelling reasons justifying departure from mandatory minimum sentences, pursuant to MCL 333.7401(4); MSA 14.15(7401X4), are limited to objective and verifiable prearrest factors, as held in People v Downey, 183 Mich App 405; 454 NW2d 235 (1990)

[1], or whether a court has greater discretion to depart from mandatory minimum sentences, as held in People v Troncoso, 187 Mich App 567; 468 NW2d 287 (1991).[2] [190 Mich App 322 (1991).]

We resolve the conflict in favor of a position that combines the holdings in People v Downey and People v Krause, 185 Mich App 353; 460 NW2d 900 (1990). The effect of this holding is that trial courts may depart from mandatory minimum sentences for substantial and compelling reasons that are objective and verifiable. Trial courts will be permitted to consider both prearrest and postarrest factors in determining whether to depart from the mandatory minimum sentences. In the present case we remand for resentencing under the principles announced herein.

i

On July 18, 1988, defendant Windall Davenshire Hill sold three ounces of cocaine to an undercover narcotics officer. As a result, Hill was immediately arrested and charged with delivery of more than 50 but less than 225 grams of a mixture containing cocaine. MCL 333.7401(2)(a)(iii); MSA 14-15(7401)(2) (a)(iii). At the time, the presumptive minimum sentence for the offense was five years in prison. However, pursuant to MCL 333.7401(4); MSA 14.15(7401)(4), the sentencing judge was free to impose a lesser sentence "if the court finds on the record that there are substantial and compelling reasons to do so.”

Unable to post bond, defendant remained incarcerated in the Oakland County jail until November 7, 1988. On that date, defendant Hill appeared before Oakland Circuit Judge Norman L. Lippitt and pleaded guilty to the charge. Following the acceptance of the plea, a sentencing hearing was immediately held. According to the presentence report, defendant is a nineteen-year-old high-school graduate who resides with his parents. He is described by the probation officer as "the product of an intact, stable home environment.” Defendant has no prior criminal record, either as an adult or as a juvenile. His father, Winston Hill, is employed as a hi-lo driver for Ford Motor Company. His mother, Fannie Hill, is a college graduate who teaches elementary school in Detroit. Neither parent has a criminal record. The report further states that defendant’s parents "do not want to see their son go to prison, and would do anything in their power to assure that he, if placed on probation, would successfully complete it.”

At the sentencing hearing, defense counsel emphasized all these factors to the court. In addition, defense counsel pointed out that there were no weapons involved in the offense, that the amount of cocaine (75.86 grams) marginally exceeded the fifty-gram threshold, and that defendant was not a typical "hard core” drug dealer. Defendant’s father also addressed the court and explained how he, as a parent, would guide defendant’s behavior should defendant avoid incarceration.

In view of these facts, the court deemed it appropriate to give defendant one year to "straighten out.” Accordingly, the court delayed sentencing for eleven months, until October 2, 1989, and imposed several conditions on defendant. Apparently the delayed sentencing procedure adopted by the trial court is not permitted by law. The delayed sentencing statute applies only to probationable offenses, MCL 771.1(1); MSA 28.1131(1). The present offense is not a probationable offense. MCL 333.7401(3); MSA 14.15(7401)(3). Notwithstanding the impropriety of the sentence, the prosecutor made no attempt to seek leave to appeal from the delayed sentence and permitted defendant to attempt to comply with the court’s conditions.

Defendant was ordered to maintain full-time employment, pay $300 in court costs at the rate of $30 a month, and "comply with all other conditions of the probation department,” including periodic urinalysis. Judge Lippitt made it clear that defendant would receive a five- to twenty-year prison term if he failed to comply.

On October 23, 1989, defendant Hill appeared for delayed sentencing before Judge Barry L. Howard. Judge Howard had succeeded Judge Lippitt, who had retired. As the result of defendant’s exemplary postarrest conduct, the updated presentence report contained a recommendation for imprisonment of only five to twenty months. The probation officer described defendant’s rehabilitation as follows:

Hill has responded favorably throughout the period of delay. He has complied with all conditions as specified on his delayed sentence order. Hill continues to maintain residency with his parents in Southfield. Since February 1989, Hill has held steady employment. He was employed at Montgomery Wards in Southfield until June 1989 working in the capacity of a tire/battery changer. For the next two months, Hill worked for the Borman Corporation as a stock person. On 9-6-89, Hill began employment at Treasure Foods Market in Detroit, earning $4 per hour, also employed in the stock department.

A check with the Reimbursement Department indicates all monies have been paid in full. A lein check dated 8-30-89 reveals no subsequent arrests or outstanding warrants.

After hearing arguments, Judge Howard sentenced defendant to one year in the county jail. Judge Howard found substantial and compelling reasons to depart from the presumptive five-year minimum term and justified the departure as follows:

The Court: ... In many of these cases I am torn, like most judges, by what the statute says and then I have to look at the individual. Further, in this case, this is a delayed sentence. It occurred in approximately November 1988, in which my predecessor, Judge Lippitt, implied that if this young man were to go straight, that there would be a deviation from the minimum of the sentence. I’m not sure that I would have done it. In fact, I probably would not have. However, I am going to be bound by my predecessor’s word.

I do find that there is [sic] a substantial and compelling reasons to go beyond the statutory minimum. I find that this man is a first offender. I note the probation report as to his family. He has a strong family unit. It does not appear anybody else has had a prior criminal record. He appears to have shown, at least in the year, remorse, although I’m not sure that should be figured in. However, I do not believe that probation is appropriate.

It is the sentence of this Court that he serve one year in the Oakland County jail.

On November 8, 1989, the prosecutor filed a "motion to correct invalid sentence.” The prosecutor argued that the sentence was invalid because it was not indeterminate. On January 8, 1990, defendant was resentenced to one to twenty years in prison. Once again, the court articulated its reasons for the departure:

The Court: . . . The Court again in sentencing has looked at the transcript as my predecessor Judge Lippitt put forth. If I had been there it may have been very different. However, I will honor Judge Lippitt’s agreement. I find that there is [sic] substantial and compelling reasons for the age of Mr. Hill; he has never been convicted of any crime; he has no prior contacts with the court; there were no weapons involved; he comes from a religious family and a good family that have [sic] been very supportive of him and it appears from the facts and circumstances that he is atypical of a hard core drug dealer and for those reasons I will impose a one to twenty sentence.

The prosecutor appealed to this Court, arguing that the reasons for departure were not substantial and compelling and that defendant should be resentenced to the presumptive minimum term. In an unpublished opinion, a panel of this Court rejected the prosecutor’s arguments and affirmed defendant’s sentence:

In the present case, we agree that there were substantial and compelling reasons for departing from the mandatory minimum sentence and find no abuse of discretion. Although we are not convinced that there were any facts surrounding the crime which would mitigate defendant’s culpability, we cannot ignore this defendant’s individual characteristics. His age, the absence of a criminal record, his strong family support, and his conduct while awaiting sentencing all point to a strong rehabilitative potential. Defendant has demonstrated substantial and compelling reasons to justify a departure.

Judges Gilus and Shepherd concur for the reason that they are required to do so under Administrative Order 1990-6, 436 Mich lxxxiv (1990). They prefer the rationale of People v Downey, 183 Mich App 405; 454 NW2d 235 (1990). They believe that whether judges should be given such wide discretion in departing from mandatory minimum sentences is more appropriately a matter that should be addressed by the Legislature. [.People v Hill, unpublished opinion per curiam of the Court of Appeals, decided April 5, 1991 (Docket No. 126060), p 2.]

II

The concurring paragraph in People v Hill by Judges Gillis and Shepherd prompted us to grant the prosecutor’s request to convene a special panel and rehear the case. By operation of Administrative Order No. 1990-6, the previous opinion in Hill has been vacated. Therefore, we must once again decide whether the trial court erred when it found substantial and compelling reasons to depart from the presumptive minimum sentence. To this end, we must first determine the scope of the phrase "substantial and compelling” as it appears in the relevant statute. This issue has been the subject of considerable dispute among the judges of this Court.

In People v Downey, 183 Mich App 405; 454 NW2d 235 (1990), this Court first addressed the scope of departure under subsection 7401(4). Noting that the Legislature had not defined what factors constitute "substantial and compelling reasons” for departure, the Downey panel looked to legislation in Minnesota and Washington for guidance. Id., pp 410-412. Although the Downey panel found the lists of substantial and compelling reasons approved by Minnesota and Washington helpful, it declined to hold that they were the only appropriate factors to consider. Rather, the panel arrived at a nonexhaustive list of factors that could be considered substantial and compelling under subsection 7401(4). Those factors were identified as (1) the facts of the crime that mitigate the defendant’s culpability, (2) the defendant’s prior record, (3) the defendant’s age, and (4) the defendant’s work history. Id., pp 414-415.

Applying the plain and ordinary meaning of the statutory language, the Downey panel adopted an "objective and verifiable” test for determining if proffered reasons are "substantial and compelling.” Id., pp 415-417. In so doing, the Downey panel also specifically limited the sentencing court’s discretion to consideration of the defendant’s prearrest conduct. The Downey Court explained its interpretation of the Legislature’s intent as follows:

We should, however, state that the term "substantial and compelling” implies that the factor must be capable of verification and thus is an objective standard as opposed to a subjective one. For example, a defendant’s prior criminal record is readily verifiable and objective. On the other hand, a defendant’s protestations of remorse and his actions after his arrest which are relied upon to show his remorse and rehabilitative potential are much more subjective and thus would not, absent other exceptional circumstances, be appropriate factors to consider.

We conclude that the Legislature intended to give trial courts discretion to depart from the presumptively mandatory sentences only in exceptional cases. The scope of a sentencing court’s discretion is thus narrow, the factors used in departing must be objective and must be of such significance that the statutory sentence is clearly inappropriate to the offender. The trial court must keep in mind that the Legislature has declared that the mandatory minimum sentence is an appropriate sentence. The trial court must begin its analysis from that perspective. [Id., pp 415-416.]

The Downey test was followed and applied by subsequent panels of this Court in People v Clark, 185 Mich App 127; 460 NW2d 246 (1990), and People v Pearson, 185 Mich App 773; 462 NW2d 839 (1990). In addition, in People v Krause, supra, the majority approved Downey’s objective and verifiable test. The Krause majority, however, expressly rejected Downey’s prearrest conduct limitation:

We agree with Downey that the bases for determining departure must be objective and verifiable. Id., pp 414, 415. This means that the facts to be considered by the judge in determining substantial and compelling reasons must be actions or occurrences which are external to the minds of the judge, defendant and others involved in making the decision and must be capable of being confirmed. However, we disagree with the Downey panel’s conclusion that, because an action is taken or an incident occurs after a defendant’s arrest, such action or incident becomes subjective. See id., pp 415-416. The fact that a defendant expresses remorse, whether orally or in writing, is an objective action which can be confirmed. However, a defendant’s intent when he expresses remorse is within his own mind and is, therefore, subjective. It cannot be confirmed by his own statement. Consequently, his mere protestation of remorse should not be considered as a balancing factor for determining substantial and compelling reasons to depart from the mandatory sentence.

On the other hand, a defendant’s active involvement in volunteer work, or cooperation with the police after his arrest, are events which exist outside the minds of the persons involved in deciding the defendant’s sentence and can be verified. Although a defendant’s intent in engaging in these postarrest activities may very well be self-serving, such intent does not make the acts subjective in nature. We believe these activities, being objective and verifiable, may be considered by the judge in measuring a defendant’s punishment. However, such consideration should be tempered by an awareness that postarrest actions by the defendant are often undertaken for the primary purpose of influencing the sentencing judge. It is only when the sentencing court, upon an evaluation of all the objective, verifiable information, reaches the conclusion that the collective facts provide substantial and compelling reasons to depart from the mandatory sentence that it may, in the exercise of discretion, decide to do so. [Id., pp 358-359.]

The dissenting opinion in Krause ultimately formed the basis for this Court’s opinion in People v Troncoso, supra. The majority in Troncoso, much like the panel in Downey, consulted dictionary definitions in an effort to ascertain the common and approved usage of the terms "substantial” and "compelling.” In addition, the Troncoso panel reviewed the legislative history of the statute in an effort to discern the legislative intent. After doing so, the Troncoso majority rejected the Downey test, concluding that neither the language of the statute nor its legislative history supported such a construction:

In light of these definitions and the Legislature’s expressed intent to expand sentencing discretion, we cannot subscribe to the Downey restrictions which limit the sentencing court’s consideration to prearrest factors capable of objective verification. The terms used by the Legislature plainly contemplate a broader scope of relevant criteria. The prosecutor’s argument that "substantial and compelling” reasons should be limited to a defendant’s objective and verifiable prearrest conduct is a public policy argument which is more appropriately addressed to the Legislature. This is particularly true with regard to penal statutes which are to be strictly construed. People v Hall, 391 Mich 175, 189-190; 215 NW2d 166 (1974). The litmus test invented by the Downey panel is a creative construction of a penal statute which is unsupported by any legislative history and not evident from a fair reading of the words used by the Legislature.

We adopt and affirm [Downey’s] nonexhaustive list of factors but reject Downey’s objective, verifiable, and prearrest-conduct limitations. While we agree that the sentencing judge does not possess "unfettered discretion” to depart from the presumptive minimums, discretion nevertheless exists in appropriate cases. We hold that the articulated reasons for deviation need not necessarily be "objective” and "verifiable” so long as they are "substantial and compelling.” The parameters of the limited judicial discretion afforded by the statute will become more clearly defined through our case by case review. [Troncoso, supra, pp 574, 577.]

Ill

After thorough consideration of our previous decisions, we adopt and follow Downey as modified by Krause on the basis of our finding that the legislative intent in adopting the exception to mandatory minimum sentences requires a more restrictive field of discretion than allowed by Troncóso.

Some general observations regarding legislative intent are in order. The primary purpose of statutory construction is to discover and give effect to the intent of the Legislature. State Treasurer v Wilson, 423 Mich 138, 143; 377 NW2d 703 (1985). Where the statutory language is of doubtful meaning, a reasonable construction must be given, looking to the purpose of the act. Id., p 144. The spirit and purpose of the statute should prevail over its strict letter. Id.; Attorney General v American Way Life Ins Co, 186 Mich App 679, 682-683; 465 NW2d 56 (1991).

A statute must be read in its entirety, and the meaning given to one section must be arrived at only after due consideration of other sections so as to produce, if possible, an harmonious and consistent enactment as a whole. State Treasurer v Wilson, supra, 145. Thus, doubtful or ambiguous provisions are construed not in isolation but with reference to and in the context of related provisions, in order to give effect to the whole enactment. Guitar v Bieniek, 402 Mich 152, 158; 262 NW2d 9 (1978).

The Legislature will be presumed, under established rules of statutory construction, to have intended that its amendments of a statute be construed in connection with the other provisions of the statute and in harmony therewith. Williams v Secretary of State, 338 Mich 202, 207; 60 NW2d 910 (1953). And, where there are two equally plausible interpretations of an amendment, the one which best harmonizes the amendment with the general tenor and spirit of the act amended is to be preferred. Attorney General v Lewis, 151 Mich 81, 84; 114 NW 927 (1908).

With these generalities in mind, we hold that the approach that more closely follows the legislative scheme of mandatory sentences is that of Downey and Krause, i.e., the reasons for departure from the mandatory minimum sentence by imposing a lesser minimum sentence must be objective and verifiable. However, the trial court may consider postarrest facts, although consideration of postarrest facts should be undertaken with much greater caution than consideration of prearrest facts because of the risk that defendants will create postarrest events to influence the sentencing judge.

Any other interpretation of the statute is contrary to the obvious legislative intent of using harsh sentences to control the drug problem by keeping drug dealers away from society for long and definite periods.

The House Legislative Analysis of the original mandatory sentencing scheme stated:

The severe penalties imposed by the bill would have an important deterrent effect on illicit drug dealing. With the present drug penalties and parole possibilities, dealers feel that if caught they will spend little or no time in prison. The risk to them seems relatively small, and the potential for profit great. Consequently, only more severe penalties and the certainty of punishment will serve to deter would-be violators. The bill also contains an important exception to the mandatory prison sentence provisions by allowing a life probation option in the 50 to 224.99 gram offense category. This could be used as an incentive for lower-echelon drug dealers to give valuable information on major drug dealers.

The bill would ensure that persons convicted of drug dealing spend substantial periods of time in prison. By keeping drug dealers off the streets for longer periods of time, it will help reduce illicit drug activity. Further, it will help improve police morale. [House Legislative Analysis, HB 4190, May 17,1978.]

We make no comment on whether the mandatory minimum sentencing scheme actually accomplishes these results. This language is merely quoted for the purpose of showing the point of view of those in the House who favored the mandatory minimum sentencing statutes.

Those in the House who were opposed to mandatory minimum sentences argued in the same document:

The power to sentence should belong to judges; the bill would, in effect, shift that power from judges to prosecutors. Sentencing judges must have unrestricted power to choose an appropriate sentence according to the condition of the defendant, the record of prior criminal activity, and the requirement of public protection. Discretion in sentencing is particularly important on drug offenses, because so many violators are victims of their own addiction and poverty. [Id.]

This latter point of view was obviously rejected when the mandatory minimum sentencing statutes were adopted.

Conversely, when the exception to the mandatory minimum sentencing statutes was enacted, the Senate Fiscal Agency reported that those supporting the legislation felt as follows:

Like Public Act 275, Senate Bill 598 would strengthen the controlled substances law by ensuring that anyone convicted of a possession offense involving 50 grams or more would face mandatory imprisonment. Offenders who had 25 to 49 grams would face either prison or lifetime probation, and those who had less than 25 grams would face a stiff fine and possible imprisonment. Also, by allowing judges to depart from the minimum terms, and reducing the minimum for larger quantities, the bill would moderate what has been an uncompromising law and would give judges greater flexibility in making sentencing decisions based on the individual circumstances of a case. Senate Bills 600, 603, and 610 would make the law consistent in regard to sentencing, pleas, and parole. [Senate Analysis, SB 598, 600, 603, 610, Third Analysis, August 29, 1988.]

The Senate Fiscal Agency added: "This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.” Nevertheless, the quoted paragraph does represent the point of view of many of those supporting the amendments.

Regardless of whether the original mandatory minimum sentencing statutes and subsequent amendments have the desired results, we find that if trial judges can use factors that are both subjective and not verifiable, they would have freedom to depart from the mandatory minimum for almost any reason they choose to use and they would hold in their hands the power to defeat the legislative purpose at will, subject only to review for abuse of discretion and lack of proportionality under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), the same standards that apply to sentences that are not mandatory. If one wishes to argue that judges ought to have such greater discretion, the argument should be addressed to the Legislature and not to the appellate courts. The Legislature appears to have spoken in a manner that indicates that mandatory minimum sentences are required in order to rid society of the scourge of drugs and that exceptions to mandatory minimum sentences should be in only rare and exceptional cases where the original legislative purpose would not be defeated.

While it is true that the general sentencing scheme that exists in Michigan gives great discretion to trial judges, the mandatory minimum sentencing scheme is a radical departure from traditional sentencing practices. It was instituted for a specific purpose, and we find that the Legislature did not intend that the judges in their almost unlimited discretion could depart from the originally stated goal of the Legislature to use harsh and fixed mandatory minimum sentences as a means to control the drug problem.

The argument is made by defendant that our holding strips trial judges of all discretion. That argument is without merit. The threshold decision that the trial judge must make is whether there are substantial and compelling reasons to depart from the mandatory minimum sentence by imposing a lesser minimum sentence. It is with respect to this threshold decision that the Legislature has evidenced its intent to limit to extreme cases departure from the statutory minimum sentence. However, once the trial court determines that there are substantial and compelling reasons to depart from the statutory minimum sentence, there are no limits in the statute of the factors that the trial judge may apply in deciding how far below the statutory minimum sentence the court should go. In such a case, all the standard considerations that exist in sentencing are at the disposal of the judges, and they are subject to review on the same basis as in any other case. Between the statutory mandatory minimum and whatever lesser minimum sentence the trial court imposes there lies adequate room for the exercise of sound judicial discretion. The mandatory minimum is a barrier; it is not a straight jacket.

IV

Turning to the case at hand, the trial judge did not have the benefit of the Downey, Krause, or even the Troncoso analysis. Nor, obviously, did he know of our holding today. Both People v Coles, 417 Mich 523; 339 NW2d 440 (1983), and Milbourn have made it clear to us that the Court of Appeals should not impose sentences: It is the function of the trial court, acting under correct principles of law, to impose a sentence in the first instance.

We believe that the prosecutor should be afforded the opportunity to argue to the trial court that under our holding there are no .substantial and compelling reasons to depart from the mandatory five-year term. Similarly we believe defendant must be free to demonstrate under today’s holding that such reasons do exist. Then, the parties would be able to argue the appropriate magnitude of the departure if the trial court decides there are substantial and compelling reasons to depart.

Remanded for resentencing. We do not retain jurisdiction.

Hood, Gribes, Sawyer, McDonald, Doctoroff, and Marilyn Kelly, JJ., concurred.

1 Leave denied 436 Mich 871 (1990) (Cavanagh and Archer, JJ., would have granted leave to appeal).

2 Leave denied 437 Mich 951 (1991) (Brickley and Boyle, JJ., would have granted leave to appeal).