Lead Opinion
The issue in this case is whether it is permissible for Michigan trial judges, sentencing under the legislative sentencing guidelines pursuant to MCL 769.34, to consider, for the purpose of a downward departure from the guidelines range, police conduct that is described as sentencing manipulation, sentencing entrapment, or sentencing escalation. These doctrines are based on police misconduct, which, alone, is not an appropriate factor to consider at sentencing. Rather, we hold that, pursuant to People v Babcock,
I. FACTS AND PROCEDURAL BACKGROUND
This case arose from a series of sales of crack cocaine by defendant to an undercover police officer. An acquaintance of defendant’s in the drug trade introduced him to an undercover officer as a potential customer. On March 8, 2001, the officer bought 28.35 grams of crack cocaine for $1,100. On March 12, 2001, he bought 49.2 grams for $2,000. Finally, on March 14, 2001, he bought 127.575 grams for $4,000. Defendant was arrested and charged with delivery of 50 or more, but less than 225, grams of cocaine, reflecting the third sale.
Defendant pleaded guilty to this charge.
At the sentencing hearing, the defense requested a downward departure from the statutorily mandated ten-year minimum sentence on the bases that defendant has a limited criminal history (only one criminal conviction for misdemeanor retail fraud) for his age of twenty-six
The prosecutor countered that the officer had legitimate law enforcement reasons for the repeated purchases. Those reasons were that many usual sellers of large amounts only will sell small amounts to new buyers, and, thus, it is only by working up to larger amounts that law enforcement can in fact determine what type of seller the suspect is. The prosecutor, however, did not address the defense’s distinct claim that no matter what the police motivation may have been, the fact that the police paid defendant $500 over the market price was the sole reason defendant’s intent to sell changed from selling a lesser amount to selling a greater amount.
At the conclusion of these arguments, the trial court found substantial and compelling reasons to depart from the mandatory minimum sentence on the basis of defendant’s age, minimal criminal history, and stable employment history of approximately two years, and, finally, on the basis of the fact that, in the court’s view, defendant had been “escalated” and precluded from getting substance abuse treatment earlier. The trial court did not indicate if the compelling nature of this escalation factor was the view that the police conduct itself was somehow offensive or that the police had overcome the will of a small dealer by the lure of more money and created а greater criminal out of someone who otherwise would have remained a lesser criminal.
The prosecutor appealed and the Court of Appeals affirmed, holding that all but one of the stated reasons of the trial court, defendant’s employment, were substantial and compelling reasons for a downward departure.
whether “sentencing manipulation” or “escalation” is a substantial and compelling reason justifying a downward departure from a statutorily imposed mandatory minimum sentence, and whether a trial court may consider the legislative sentencing guidelines recommendation when determining the degree of a departure, which has already been determined to be supported by substantial and compelling reasons. [468 Mich 947 (2003).][8 ]
II. STANDARD OP REVIEW
To decide whether sentencing manipulation, sentencing entrapment, or sentencing escalation could ever be a substantial and compelling reason for a departure as a matter of law, we must interpret the former MCL 333.7401(4) and the general legislative sentencing guidelines provision in MCL 769.34(3). Statutory interpretation is subject to review de novo. People v Phillips,
III. ANALYSIS
In Michigan, the Legislature has established sentencing guidelines. See MCL 769.31 et seq. The underlying approach of the guidelines is that the person to be
Because of this approach, police misconduct, on which the doctrines of sentencing manipulation, sentencing entrapment, and sentencing escalation are based,
IV APPLICATION TO THIS CASE
The trial court in this case concluded, without more, that the defendant was “escalated.” It is not clear whether the court was thinking about defendant’s intent or the police' conduct. Thus, resentencing or rearticulation of the court’s reasons for departure on this factor is required because, under MCL 769.34(3), “it is not enough that there exists some potentially substantial and compelling reason to depart from the guidelines range. Rather, this reason must be articulated by the trial court on the record.” Babcock, supra at 258 (emphasis in original). Moreover, a trial court must articulate on the record a substantial and compelling
Further, we hold that two of the other reasons for departure that the trial court articulated are not substantial and compelling: (1) defendant’s employment for two years, and (2) that at defendant’s age of twenty-six years he had only one previous criminal conviction.
With regard to the employment factor, we agree with the Court of Appeals that “defendant’s employment as a taxi cab driver... for a period of less than two years... does not ‘keenly’ or ‘irresistibly’ grab one’s attention and, therefore, does not warrant a downward departure.” Slip op at 2, quoting Fields, supra at 67. Thus, we affirm the Court of Appeals on this issue.
Nor does the fact that defendant only had one previous criminal conviction (misdemeanor retail fraud) until he reached the age of twenty-six
If a trial court articulates multiple reasons for departure, some of which are substantial and compelling and some of which are not, and the appellate court cannot determine if the sentence departure is sustainable without the offending factors, remand is appropriate. Id. at
V THE CHIEF JUSTICE’S OPINION
The Chief Justice is in agreement with our holding that police conduct alone cannot be considered at sentencing, and she is in agreement with the result of remanding for resentencing in this case. However, the Chief Justice disagrees with part of our rationale and contends that we are employing the subjective factor of intent to determine whether a sentencing departure is warranted in a particular case.
That is, she believes that because intent is subjective, it can never be shown to have been altered in an objective and verifiable way. We disagree. For example, if under surveillance a defendant is importuned to sell more of an illegal substance than he wished and it is clear that he would not have sold it absent the buyer’s pleas to do so, the tape of their conversations could well establish in an objective and verifiable fashion the change in the defendant’s intent. Similarly, if there is
Moreover, we do not consider the intent element of this crime to be “nullified” by allowing a trial judge to consider altered intent as a factor for sentence departure, as the Chief Justice states, post at 735. The crime of delivery of a controlled substance of a particular amount is a general intent crime. See People v Mass,
Therefore, our approach does not nullify an element of the offense. The element of intent to sell drugs is left untouched; indeed, defendant himself admitted that he sold drugs. However, defendant’s intent concerning the amount of drugs he sold may have been altered in this case when the police repeatedly returned to him to buy
The Chief Justice asserts that by considering the defendant’s intent at the time of sentencing we are evading the Legislature’s determination that the specific intent of the individual not be considered for the purpose of conviction. Yet, we are not doing that. We are considering the defendant’s intent for the purpose of sentencing. It seems obvious that the sentencing stage is different from the trial stage. Indeed, the latitude for the trial court in sentencing to consider things inadmissible at trial can be found in the Legislature’s requirements of what a presentence report can contain. A presentence report prepаred pursuant to MCL 771.14 can include hearsay, character evidence, prior convictions, and alleged criminal activity for which the defendant was not charged or convicted. Moreover, the sentencing guidelines themselves, MCL 769.34(3), use this approach by empowering the trial court to consider virtually any factor that meets the substantial and compelling standard. Certainly this encyclopedic grant allows the consideration of matters broader than those matters already before the court at trial, because if it did not, the statute would be conveying no greater authority than that previously possessed. Such a construction of the statute, a construction that makes the statute meaningless, should be avoided. See Sweatt v Dep’t of Corrections,
In light of the applicable sentencing statutes and our recent decision in Babcock, we vacate the decision of the
Notes
Defendant also pleaded guilty to charges concerning the first and second buys in the series and various othеr offenses that he committed during the time surrounding the series of buys. However, the present appeal involves only defendant’s sentence for the third offense described above, delivery of 50 or more, but less than 225, grams of cocaine.
Former MCL 333.7401(2)(a)(iii), in effect at the time of this action. See
See MCL 769.34(2)(a). When the trial court imposes a mandatory minimum sentence that exceeds the statutory sentencing guidelines range, it is not departing from the statutory sentencing guidelines. Thus, in this case, although the sentence imposed exceeds the recommended sentence range, the trial court does not have to articulate “substantial and compelling” reasons to justify its upward departure from the guidelines. However, because the trial court departed downward from the
These conditions are:
A court may depart from the appropriate sentence range established under the sentencing guidelines [MCL 777.1 et seq.] if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure. All of the following apply to a departure:
(a) The court shall not use an individual’s gender, race, ethnicity, alienage, national origin, legal occupation, lack of employment, representation by appointed legal counsel, representation by retained legal counsel, appearance in propria persona, or religion to depart from the appropriate sentence range.
(b) The court shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presen-tence investigation report, that the characteristic has been given inadequate or disproportionate weight. [MCL 769.34(3).]
There was a dispute concerning whether defendant’s age was twenty-six or twenty-nine at the time of the offenses, but resolution of this issue is not necessary to our analysis.
Unpublished opinion per curiam, issued October 18,2002 (Docket No. 238984).
Specifically, the Fields Court stated in reference to Shinholster:
[T]he Court found that the government’s actions, although not rising to the level of entrapment, purposefully escalated the crime. This last factor is of particular importance in our approval of the resolution reached in Shinholster. As a mitigating circumstance surrounding the offense, it weighs heavily in favor of a deviation [departure] from the statutory minimum. [Fields, supra at 79.]
However, the present Court of Appeals panel properly pointed out that this was merely a plurality decision without binding effect because the fourth justice signing the lead opinion, Justice Boyle, authored a concurring opinion in which she refused to approve of the lead opinion’s discussion of Shinholster. Fields, supra at 81-82.
Both parties agree that, with respect to the latter issue presented on appeal, the trial court did not impermissibly consider the legislative guidelines in the manner described here. Thus, neither party requests relief on this issue, and the issue is moot. See Crawford v Dep’t of Civil Service,
Although some individualized factors may not, in the final analysis, constitute a sufficiently “substantial and compelling” basis for moving a persоn outside the original compartment, that should not preclude the trial court from considering whatever individualized factors that it sees as relevant. While it is possible, as the Chief Justice argues, that some factors can never be “substantial and compelling” because they can never be objective and verifiable, we are reluctant to characterize too many factors in this way because there are simply too many combinations of factual circumstances for us to feel confident in forever precluding consideration of some particular factor. As a practical matter, it also seems that the upshot of the Chief Justice’s viewpoint is that everything will have to be litigated twice through the appellate process—first, to address whether a factor is one that can ever be “substantial and compelling,” and, second, to consider whether it is “substantial and compelling” in the circumstances of a specific case. One of the virtues of the majority position is that it would sharply reduce the first of these classes of litigation.
The federal definitiоn of sentencing manipulation can be found in United States v Shephard, 4 F3d 647, 649 (CA 8,1993). The United States Court of Appeals for the Eighth Circuit held that sentencing manipulation occurs.when “the government stretche[s] out the investigation merely to increase the sentence [a defendant] would receive.” Although Michigan has not defined sentencing manipulation by case law, a majority of state courts addressing the issue has adopted similar language as the functioning definition of the term. See, e.g., People v Smith, 31 Cal 4th 1207, 1211-1212; 7 Cal Eptr 3d 559;
Sentencing entrapment has been discussed by our Court of Appeals in People v Ealy,
In the cases discussing sentencing manipulation and sentencing entrapment, reference is occasionally made to sentencing “escalation.” No Michigan case has defined this term, nor has any other court of which we are aware. However, we believe that contextually, sentencing escalation can mean either sentencing manipulation or sentencing entrapment, as defined above.
A sentencing departure may be from either a sentence under a sentencing guidelines range or a statutorily mandated minimum sentence. Although Babcock is primarily concerned with the sentencing guidelines, its reasoning is equally applicable to this statutorily mandated minimum sentence case. See id. at 257 (acknowledging applicable statutorily mandated minimum sentences and citing Fields as a mandatory minimum case).
Our analysis holds even if defendant were actually twenty-nine at the time of these offenses. See n 5.
The Court of Appeаls failed to adhere to this directive by failing to consider whether the trial court would have departed and would have departed to the same degree without the employment factor that the Court of Appeals found to be insubstantial and noncompelling. Thus, even if the Court of Appeals properly deemed “escalation” to be a substantial and compelling factor for departure in this case, the Court should have considered whether the trial court’s departure was sustainable without the offending factor of employment, and, if the Court could not do so, it should have remanded the case to the trial court for resentencing or rearticulation of the reasons for departure.
The Chief Justice argues that the United. States Supreme Court’s recent decision in Blakely v Washington, 542 US_;
Michigan, in contrast, has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law. MCL 769.8. The minimum is based on guidelines ranges as discussed in the present case and in Babcock, supra. The trial judge sets the minimum but can never exceed the maximum (other than in the case of a habitual offender, which we need not consider because Blakely specifically excludes the fact of a previous conviction from its holding). Accordingly, the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment.
Justice O’Connor in her dissent in Blakely raised a concern similar to the one the Chief Justice now raises, but the majority in that case made clear that the decision did not affect indeterminate sentencing systems. The Court stated:
JUSTICE O’CONNOR argues that, because determinate sentencing schemes involving judicial factfinding entail less judicial discretion than indeterminate schemes, the constitutionality of the latter implies the constitutionality of the former. Post, at 1-10. This argument is flawed on a number of levels. First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty. Of coruse indeterminate schemes involve judicial factfind-ing, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. {Blakely, supra at 2540 (emphasis added).]
Concurrence Opinion
concurred with TAYLOR, J.
CORRIGAN, C.J. (concurring in part and dissenting in part). Although I agree with the result of the majority’s decision, I cannot agree with its analysis. Any sentencing departure that endorses an inherеntly subjective factor such as the defendant’s intent cannot satisfy our Legislature’s requirement that any sentencing departures be based on objective and verifiable factors. I continue to believe that sentencing escalation or entrapment is merely the entrapment defense asserted at sentencing rather than before trial and that these related concepts have no valid legal foundation. Further, I agree with the majority that the recent United States Supreme Court decision in Blakely v Washington, 542 US_;
I. BACKGROUND
The concepts of “sentencing entrapment” or “escalation” originated in the federal circuit courts of appeals as arguments in support of a departure from the federal sentencing guidelines. See United States v Lenfesty, 923 F2d 1293, 1300 (CA 8, 1991) (“We are not prepared to say there is no suсh animal as ‘sentencing entrapment.’ Where outrageous official conduct overcomes the will of
In Michigan, the concept of sentencing entrapment or escalation was first approved in People v Shinholster,
The theory of “escalation” was again discussed in People v Ealy,
In Michigan, entrapment is analyzed according to a two-pronged test, with entrapment existing if either prong is met. The court must consider whether (1) the police engaged in impermissible conduct that would induce a law-abiding person to commit a crime in similar circum*734 stances, or (2) the police engaged in conduct so reprehensible that it cannot be tolerated. [Id,.]
The Court in Ealy also quoted the federal circuit test for sentencing entrapment and held that the facts in the case did not support application of the theory because the police did nothing more than present defendant with the opportunity to commit the offenses at issue. Id. at 510-511. The Court stated that “the delay in [the defendant’s] arrest was justified on the ground that an earlier arrest would have impaired the ability of the police to conduct an ongoing undercover narcotics investigation.” Id. at 511.
The only precedent from this Court involving the concept of sentencing escalation is People v Fields,
Thus, the entrapment defense and the concept of sentencing entrapment or escalation are two sides of the same coin. The effect of the entrapment defense is to absolve of responsibility those whose conduct the Legislature has deemed criminal, and the effect of sentencing entrapment or escalation is to partially absolve of responsibility those whose conduct the Legislature has determined warrants a specific minimum penalty. The similarity of the two concepts can be seen
Indeed, sentencing entrapment or escalation is often used to effectively nullify an element of a crime for which the defendant was convicted by purporting to lessen or eliminate the defendant’s intent. This is no different than the application of the entrapment defense before trial. Evidence regarding the nature and extent of defendant’s intent is only a proper subject for the case-in-chief, when determining whether the elements of a crime have been established. Reviewing a defendant’s subjective intent at sentencing can amount to a nullification of a conviction, or at least an element of a crime, without procedural protections.
In cases in which only a general intent is required, the Legislature has already determined that the specific intent of the individual defendant is irrelevant for the purpose of a conviction. If the intent is irrelevant at the initial stage for the purpose of the conviction, it cannot be used at sentencing as an end-run around the Legislature’s decision. Here, the Legislature determined that those who intend to distribute drugs assume the risk of punishment according to the amount distributed. It is not for this Court to make a different policy decision upon sentencing.
II. THE VALIDITY OF THE ENTRAPMENT DEFENSE
For the reasons stated in my dissenting statement in People v Moffett,
Sentencing entrapment or escalation is no different. Once a defendant has committed an offense that the Legislature has determined requires a certain minimum punishment, this Court lacks any authority to determine that the Legislature did not really “mean” to apply that punishment to the defendant or that the legislatively mandated punishment should not be applied as a matter of policy. “The regulation of law enforcement practices involved in the investigation and detection of crime falls within the police power of the legislative branch,” not within the implied judicial powers or rulemaking authority of this Court under Const 1963, art 6, §§ 1, 5. Id. at 897-898. Just as “[t]he assignment of criminal responsibility is undeniably a matter of substantive law” reserved fоr the Legislature, id. at 898, so is the allocation of criminal punishment. For this Court to refuse to apply a legislatively mandated minimum sentence would impermissibly usurp both the legislative and executive functions, in violation of Const 1963, art 3, § 2.
Both the general entrapment defense and the concept of sentencing entrapment or escalation require a court to “disregard the law” and bar prosecution or the imposition of punishment if the court forms the opinion that the crime has been instigated or escalated by government officials. See id. at 898. The judicial branch lacks the authority to disregard the law or supervise law enforcement procedure. Therefore, the general entrap
HI. SENTENCING ENTRAPMENT OR ESCALATION AND OUR LEGISLATIVELY MANDATED SENTENCING SCHEME
As this Court noted in People v Babcock,
Under the statutory sentencing guidelines, a departure is only allowed by the Legislature if there is a “substantial and compelling reason” for doing so. MCL 769.34(3). Accordingly; since the enactment of the statutory sentencing guidelines, the role of the trial court has necessarily been altered. Before the enactment of these guidelines, the trial court was required to choose a sentence within the statutory minimum and maximum that was “proportionate to the seriousness of the circumstances surrounding the offense and the offender.” [People v Milbourn,435 Mich 630 , 636;461 NW2d 1 (1990)]. Following the enactment of these guidelines, the trial court is required to choose a sentence within the guidelines range, unless there is a “substantial and compelling” reason for departing from this range. Consequently... the role of the Court of Appeals has also changed from reviewing the trial court’s sentencing decision for “proportionality” to reviewing the trial court’s sentencing decision to determine, first, whether it is within*738 the appropriate guidelines range and, second, if it is not, whether the trial court has articulated a “substantial and compelling” reason for departing from such range.
For a reason to be “substantial and compelling,” it must be “objective and verifiable.” Id. at 257-258.
Although the majority attempts to conform to the lеgislative requirements by requiring objective and verifiable proof that police conduct (or any other general cause) influenced the defendant’s intent, the fact remains that the departure is, in fact, based on the defendant’s intent, which is an inherently subjective factor. I cannot fathom how a person’s subjective intent can ever be considered objective or verifiable.
“Intent” is defined as “the state of a person’s mind that directs his or her actions toward an objective.” Random House Webster’s College Dictionary (1997). The state of a defendant’s mind is an inherently subjective factor and cannot suffice as an objective and verifiable factor for a sentencing departure. Subjective intent or motivation cannot satisfy Babcock, no matter how “objectively” the defendant presents his version of the state of his mind. Therefore, the concept of sentencing entrapment or escalation is at odds with our legislatively mandated sentencing scheme.
In addition, although I agree with the majority that Blakely, supra, does not invalidate our sentencing scheme, I question the majority’s sweeping statements in section V of its opinion responding to my dissent. The
A presentence report prepared pursuant to MCL 771.14 can include hearsay, character evidence, prior convictions, and alleged criminal activity for which the defendant was not charged or convicted. Moreover, the sentencing guidelines themselves, MCL 769.34(3), use this approach by empowering the trial court to consider virtually any factor that meets the substantial and compelling standard. Certainly this encyclopedic grant allows the consideration of matters broader than those matters already before the court at trial, because if it did not, the statute would be conveying no greater authority than that previously possessed. [Ante at 730.]
Although I agree that Blakely does not implicate our sentencing scheme, the full scope of the Blakely decision has yet to be determined. Given the response to Blakely, it appears likely that the issue of mandatory minimum sentences will need to be settled. See Laurie E Cohen and Gary Fields, High-Court Ruling Unleashes Chaos Over Sentencing, The Wall Street Journal, July 14, 2004. Given the lack of any definitive statement by the United States Supreme Court regarding mandatory minimum sentences, I believe that sweeping statements of broad judicial authority, like those quoted above, may serve only to borrow trouble. The majority’s broad assertions of judicial power are not necessary to the disposition of this case and may unnecessarily subject our sentencing scheme to future criticism. In short, although Michigan’s sentencing scheme is not currently affected by Blakely, I believe the wisest course is to act circumspectly to avoid making
IV APPLICATION
MCL 333.7401(2)(a)(iii), at the time of this action, provided for a mandatory minimum sentence of ten years for this sort of drug offense. Former MCL 333.7401(4) provided that the court could depart from the minimum term of imprisonment “if the court finds on the record that there are substantial and compelling reasons to do so.” Again, we noted in Babcock that “substantial and compelling” was a legal term of art that required, among other things, that the reason be оbjective and verifiable.
The finding of sentencing entrapment or escalation here was based solely on the trial court’s subjective assessment of the defendant’s subjective intent. This finding cannot be considered objective and verifiable, and so the departure from the mandatory minimum
V CONCLUSION
The judicially created entrapment defense and the concepts of sentencing entrapment and escalation have no valid legal foundation. Reviewing a defendant’s subjective intent at sentencing amounts to a nullification of a conviction, or possibly of an element of a crime, without procedural protections. Further, any departure based on sentencing entrapment or escalation is necessarily based on the defendant’s subjective intent and, thus, cannot be considered objective and verifiable. Therefore, departures based on the concept of sentencing entrapment or escalation violate the statutory requirements for a sentencing departure.
CAVANAGH, J. (concurring in part and dissenting in part). I agree with the majority’s conclusion that a sentencing judge may consider whatever individualized factors the judge believes are relevant. I also agree with the majority’s determination that Blakely v Washington, 542 US_;
Some courts and scholars, however, distinguish between sentencing factor manipulation and sentencing entrapment. ... Under this approach, sentencing factor manipulation may exist regardless of the defendant’s predisposition. The doctrine focuses exclusively on the motives of law enforcement authorities in manipulating the sеntence, as when an agent delays an arrest with the purpose of increasing the defendant’s sentence.. .. One commentator illustrated the distinction:
“An example of ‘sentencing entrapment’ would be when a government agent offers a kilogram of cocaine to a person who has previously purchased only gram or ‘user’ amounts, for the purpose of increasing the amount of drugs for which he ultimately will be held accountable. On the other hand, an example of ‘sentencing manipulation’ would be when an undercover agent continues to engage in undercover drug purchases with a defendant, thereby stretching out an investigation which could have concluded earlier, for the sole purpose of increasing the defendant’s sentencing exposure, or when an undercover agent insists that a defendant ‘cook’ powder cocaine into ‘crack,’ well-knowing that sentences for dealing in crack are significantly higher than sentences for dealing in powder cocaine.”
Amy Levin Weil, “In Partial Defense of Sentencing Entrapment,” 7 Fed. Sentencing Rep. 172, 174 (1995) (footnotes omitted). In any event, the sentencing entrapment and manipulation doctrines both require a finding of improper motive on the part of the government before a departure is warranted.
Rather than vacating and remanding, I would simply affirm the decision of the Court of Appeals. The trial court stated on the record that the downward departure was based on substantial and compelling reasons that were objective and verifiable. On appeal, the Court of Appeals affirmed and specifically found that the stated reason for departure at issue here, sentencing manipu
Justice Boyle concurred, but declined to join in the approval of Shinholster, stating that it was
dicta with a vengeance. The question whether defendant’s successive criminal acts not involving police entrapment can amount to a mitigating circumstance is far too significant to be resolved in the context of a record that does not present that question. [Id. at 82 n 1.]
The majority mischaracterizes my position as agreeing with the notion that “police conduct alone cannot be considered at sentencing ....” Ante at 728. My position, however, is broader than that. As previously explained, I disagree with the concept of sentencing entrapment or escalation altogether regardless whether such “entrapment” or “escalation” resulted from police conduct alone or police conduct and some other factor. It is the very notion of sentencing entrapment and escalation with which I disagree and which is without any valid legal foundation, not the fact that such “entrapment” or “escalation” ultimately stems from police conduct.
To the extent that the majority is actually talking about a defendant’s motive, and not intent, there may be situations in which objective and verifiable evidence of motive will keenly and irresistibly grab the court’s attention and justify a sentencing departure. Under the facts of this case, however, I question how defendant’s subjective decision to sell drugs of varying amounts from his employer’s vehicle on company time can be considered an objective and verifiable factor that keenly or irresistibly grabs the court’s interest.
MCL 769.34(2)(a) provides, in relevant part:
If a statute mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections, the court shall impose sentence in accordance with that statute. Imposing a mandatory minimum sentence is not a departure under this section. If a statute mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections and the statute authorizes the sentencing judge to depart from that minimum sentence, imposing a sentence that exceeds the reсommended sentence range but is less than the mandatory minimum sentence is not a departure under this section. [Emphasis added.]
Although the sentence after departure here did exceed the recommended sentencing guidelines range, it is irrelevant that the sentence would not be considered a departure under MCL 769.34 because former MCL 333.7401(4) imposed a separate requirement that the departure be supported by substantial and compelling reasons.
Dissenting Opinion
(dissenting in part and concurring in part). I respectfully dissent from the majority’s decision to vacate the Court of Appeals decision and remand this case for resentencing. Consistent with my opinions in People v Daniel
Applying the reasoning of my opinion in Babcock to the facts of this case, I would conclude that the trial court did not abuse its discretion in departing downward
But I concur in the majority’s conclusion that the United States Supreme Court’s decision in Blakely v Washington, 542 US_;
People v Daniel,
People v Babcock,
The majority holds that while police misconduct may not be considered, an “enhanced intent” that results from police misconduct may be considered when determining whether to depart from the guidelines ranges. Ante at 718, 725. The majority opinion does not explain how sentencing courts are to distinguish practically between police misconduct, which is an impermissible consideration under its analysis, and the “enhanced intent” that results from police misconduct, which is a permissible consideration under its analysis.
Babcock, supra at 282-283.
Concurrence Opinion
(concurring in part and dissenting in part). I concur with the majority opinion to the extent that it purports to disallow consideration of the concepts of sentencing entrapmеnt, sentencing manipulation, and sentencing escalation. However, I believe that the core tenet espoused by the majority—that a defendant’s so-called “altered intent” may constitute an objective and verifiable factor that may be considered in departing from a statutorily mandated minimum sentence—is directly contrary to the principles this Court so recently reaffirmed in People v Babcock,
I. CONSIDERATION OF POLICE CONDUCT
Although the majority states that police misconduct, standing alone, is not an appropriate factor to consider
II. INTENT IS NOT AN “OBJECTIVE” FACTOR
Under former MCL 333.7401(4), a departure from the statutorily mandated minimum ten-year sentence applicable to defendant is permitted if the court has a
The majority opines that a defendant’s “enhanced intent,” if it “can be shown in a manner that satisfies the requirements for a sentencing departure as outlined in Babcock,” is a factor that may properly be considered in departing from a mandatory minimum sentence. Although the majority does not dispute that intent is inherently subjective, it nevertheless holds that intent, if “shown” or “established” in “an objective and verifiable way,” becomes a proper factor for consideration under Babcock. Ante at 726, 728-729. Thus, the majority presents two hypothetical examples in which evidence, other than the defendant’s own representations as to his intent, is presented to support the defendant’s claim that his intent was altered before or after he committed a crime; under such circumstances, the majority holds, the defendant’s intent has been objectively and verifiably shown.
A subjective factor such as intent is not somehow transformed into an objective factor simply because it can be supported by evidence other than the defendant’s own representations. Although the existence of such external evidence might well render a particular factor verifiable, an otherwise subjective factor will remain subjective, even in the face of a mountain of proof.
Accordingly, on remand, I would preclude the trial court from considering as a proper sentencing factor defendant’s intent.
In addition, I concur in footnote 14 of the majority’s opinion, ante at 730-731, and agree that Michigan’s sentencing system is unaffected by the holding in Blakely v Washington, 542 US_;
Michigan’s objective entrapment defense requires a showing that either (1) the police engaged in impermissible conduct that would induce a law-abiding person to commit a crime in similar circumstances or (2) the police engaged in conduct so reprehensible that it cannot be tolerated. People v Johnson,
In turn, the Fields Court adopted the test for “substantial and compelling” as announced by our Court of Appeals in People v Hill,
The examples proffered by the majority aptly illustrate the inconsistency of its holding. Consider the first example, in which there is evidence that a defendant sells more of an illegal substance than he was initially prone to sell because the buyer has pleaded for more. Ante at 728-729. It is entirely beyond me how such evidence demonstrates that the defendant’s intent was “altered” by external factors. Rather, the defendant, at the time he committed the offense, intended to sell whatever amount of the illegal substance he, in fact, sold; the buyer’s pleas simply
In the second example proffered by the majority there is evidence that the defendant, after assaulting thе victim, secures medical assistance. Ante at 729. I am at a loss to understand how this evidence of the defendant’s post-crime behavior demonstrates that his intent in committing the crime was altered. Again, as in the prior example, the defendant intended to do precisely what he did at the time he committed the crime. Rather, this example seems to approve of sentencing consideration of remorse, a factor that the Fields Court specifically held lacked objectivity. Fields, supra at 80. Moreover, the fact that a defendant dials 911 after slashing a victim’s throat would certainly not “keenly” or “irresistibly” grab this writer’s attention.
For example, much like intent, a defendant’s remorse is a subjective state-of-mind factor that may not be properly considered at sentencing. See Fields, supra at 80. Remorse would not be somehow transformed into a proper sentencing factor by virtue of tangible or otherwise external
Concurrence Opinion
(concurring in part and dissenting in part). I agree with Justice CAVANAGH’s concurrence. However, I do not believe the Court should take a position on the application of Blakely v Washington
542 US_;