PEOPLE v CLAYPOOL
Docket No. 122696
Supreme Court of Michigan
Decided July 22, 2004
470 Mich 715
Argued March 9, 2004 (Calendar No. 4).
In separate opinions, a majority of the Supreme Court held:
A downward departure at sentencing cannot be based solely on police conduct that forms the basis for the doctrines of sentencing manipulation, sentencing entrapment, or sentencing escalation.
If it can objectively and verifiably be shown that police conduct or some other precipitating cause altered a defendant‘s intent, that altered intent can be considered by the sentencing judge as a ground for a downward sentence departure.
The recent United States Supreme Court decision, Blakely v Washington, 542 US ———; 124 S Ct 2531; 159 L Ed 2d 403 (2004), which concerns the right to have a jury trial on any fact that increases the penalty for a crime beyond the prescribed statutory maximum penalty, does not affect scoring systems that establish recommended minimum sentences, such as the system in Michigan.
Justice TAYLOR, joined by Justice MARKMAN, stated that if the defendant‘s intent is altered by police conduct or some other precipitating factor, i.e., an intent-altering factor, and that can be shown in a manner that satisfies the requirements for a sentencing departure as outlined in People v Babcock, 469 Mich 247 (2003), it is appropriate for a court to consider that factor in making a departure.
The focus at sentencing is on the specific criminal being sentenced and on the specifiс offense for which the criminal is being sentenced. If the defendant‘s intent to commit the crime was altered by some circumstance, including police conduct, and that can be shown in a manner that satisfies the requirements for a sentencing departure as outlined in Babcock, it is appropriate for a court to consider that altered intent in departing from the sentencing guidelines range or the mandatory sentence.
Where a trial court articulates multiple reasons for departure from a statutory minimum sentence or from a statutory sentencing guidelines range, if any of the reasons for the departure are not substantial and compelling and if the appellate court cannot determine if the sentence departure is sustainable without the offending factors, a remand for resentencing or rearticulation on the record is appropriate. Babcock, supra.
In this case, the trial court did depart downward from the statutory minimum sentence and so must articulate reasons for this downward departure from the mandatory minimum.
Blakely v Washington concerns the Washington state determinate sentencing system, which allows a trial judge to elevate the maximum sentence permitted by law based on facts not found by the jury, but by the judge. Michigan, in contrast, has an indeterminate sentencing system in which only the minimum sentence is established by the judge, while the maximum sentence is set by law and is not to be exceeded.
Chief Justice CORRIGAN, concurring in part and dissenting in part, agreed with the result reached by the majority, but disagreed with its analysis. She stated that any sentencing departure that endorses an inherently subjective factor such as the defendant‘s intent cannot satisfy the Legislature‘s requirement that any sentencing departures be based on objective and verifiable factors. The concept of sentencing entrapment or escalation is at odds with
Justice CAVANAGH, concurring in part and dissenting in part, agreed that a judge may consider whatever individualized factors the judge believes are relevant and tended to agree with the ultimate rationale of the majority. He also agreed with the determination of the majority that Blakely v Washington does not appear tо affect scoring systems that establish recommended minimum sentences, such as the system in Michigan. He would, however, affirm the decision of the Court of Appeals that determined that the departure for sentencing escalation was based on substantial and compelling reasons that were objective and verifiable, instead of vacating the decision of the Court of Appeals and remanding the case to the trial court for resentencing or rearticulation of the reasons for departure from the sentencing guidelines.
Justice WEAVER, dissenting in part and concurring in part, stated that all relevant factors, including police conduct, should be considered in determining whether there is a substantial and compelling reason to depart from the sentencing guidelines ranges. Because the trial court sentence was within a principled range of outcomes, the court did not abuse its discretion in departing from the guidelines, and the Court of Appeals decision affirming the defendant‘s sentence should be affirmed. She concurred with the conclusion of the majority that the decision in Blakely v Washington does not affect Michigan‘s scoring system, which establishes the recommended minimum sentence.
Justice YOUNG, joined by Chief Justice CORRIGAN, concurring in part and dissenting in part, concurred with the decision of the majority to remand for resentencing but dissented from its analysis and would not permit the trial court, on remand, to consider the defendant‘s intent as a proper sentencing factor, because intent is a subjective factor and it therefore may not properly be considered under People v Babcock. He also concurred with the statement by the majority that Michigan‘s sentencing system is unaffected by the holding in Blakely v Washington.
Justice KELLY, concurring in part and dissenting in part, stated that she agrees with Justice CAVANAGH‘s concurring opinion but does not agree that the Court should take a position on the
SENTENCES — CRIMINAL INTENT — ALTERED INTENT — PRECIPITATING FACTORS — DEPARTURE FROM MANDATORY MINIMUM SENTENCE OR SENTENCING GUIDELINES.
Police conduct, or other precipitating factors, that cause a defendant to have a criminal intent he would not have had but for that conduct or those factors, if sufficient according to the criteria in People v Babcock, 469 Mich 247 (2003), may be considered by the sentencing court in determining whether to depart downward from a statutorily mandated minimum sentence or from the sentencing guidelines range on the basis of altered intent.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and John S. Pallas, Assistant Prosecuting Attorney, for the people.
Mark S. Bosler for the defendant.
TAYLOR, J. The issue in this case is whether it is permissible for Michigan trial judges, sentencing under the legislative sentencing guidelines pursuant to
I. FACTS AND PROCEDURAL BACKGROUND
This case arose from a series of sales of crack cocaine by defendant to an undercover рolice 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.1 The offense carries a statutorily mandated minimum sentence of ten years of imprisonment.2 However, according to the legislative sentencing guidelines and the former
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-six5 and that he has an addiction to cocaine, which was costly and jeopardized his ability to pay for his home. In this case, defense counsel also argued that the police had manipulated defendant by making repeated purchases for increasing quantities of cocaine and that, by doing so, they “escalated” the sentence to
mandatory minimum, it must articulate such reasons to justify this downward departure from the mandatory minimum. See former
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 a 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.6 In a brief analysis, the Court agreed with the trial court‘s decision to depart downward on the basis of “escalation,” citing People v Shinholster, 196 Mich App 531; 493 NW2d 502 (1992). Citing the short treatment of this issue in Shinholster, 196 Mich App at 535, the Court stated that “while not constituting entrapment, purposeful[] escala[tion] [of] the defendant‘s crime” is a permissible reason for a downward departure from a mandatory minimum sentence. Slip op at 2. The Court of Appeals also noted that in People v Fields, 448 Mich 58; 528 NW2d 176 (1995), “three of the four justices in the majority agreed that [escalation] was a permissible factor to consider....” Slip op at 2 n 3.7
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 OF 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 оf law, we must interpret the former
III. ANALYSIS
In Michigan, the Legislature has established sentencing guidelines. See
Because of this approach, police misconduct, on which the doctrines of sentencing manipulation, sentencing entrapment, and sentencing escalation are based,10 is not an appropriate factor to consider at sentencing. Police misconduct, standing alone, tells us
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 оr the police conduct. Thus, resentencing or rearticulation of the court‘s reasons for departure on this factor is required because, under
The Chief Justice states that the substantive defense of entrapment is akin to the sentencing entrapment doctrine. This is not the case. The substantive defense of entrapment in Michigan is a complete bar to prosecution. See People v Johnson, 466 Mich 491, 493-494, 498; 647 NW2d 480 (2002). The doctrine of sentencing entrapment, as defined in the federal courts, merely allows a downward departure from a sentence. Thus, the two concepts have distinct effects—dismissal of the charges on one hand versus a (perhaps slightly) lower sentence on the other.
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 thаt “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, 448 Mich 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-six12 “‘keenly’ or ‘irresistibly’ grab[] our attention.” Babcock, 469 Mich at 257-258, quoting Fields, 448 Mich at 67. The trial judge stated that he was “impressed” that defendant had made it to the advanced age of twenty-six with only one previous criminal conviction of a minor nature. We are not. We do not believe that the age of twenty-six is particularly old to not yet have a more lengthy criminal record. Thus, the trial court abused its discretion in this regard. Babcock, 469 Mich at 269-270.
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, 464 Mich 615, 627; 628 NW2d 540 (2001). Thus, the only intent required to be convicted of the offense is the intent to deliver a controlled substance. The accused need not have the intent to sell a particular amount of the substance. Rather, that a particular amount was in fact sold is sufficient to convict the accused of delivery of that amount under the statute. See id. at 626, citing People v Quinn, 440 Mich 178, 189; 487 NW2d 194 (1992).
Therefore, our approach does not nullify an element of the offense. The element of intent to sell drugs is left untouched; indeed, defendаnt 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 prepared pursuant to
In light of the applicable sentencing statutes and our recent decision in Babcock, we vacate the decision of the
sentence on the basis of judicial fact-finding. This offended the Sixth Amendment, the United States Supreme Court concluded, because the facts that led to the sentence were not found by the jury. Blakely, supra at 2536.
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.
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 course indeterminate schemes involve judicial factfinding, 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 conсerned. [Blakely, supra at 2540 (emphasis added).]
MARKMAN, J., 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 inherently 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 ———; 124 S Ct 2531; 159 L Ed 2d 403 (2004), does not invalidate Michigan‘s indeterminate sentencing scheme as a whole. Nonetheless, the majority‘s sweeping language regarding judicial powers to effect departures (not limited to downward departures) will invite challenges to Michigan‘s scheme; it appears to conflict with principles set out in Blakely.
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 such 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, 196 Mich App 531; 493 NW2d 502 (1992). In Shinholster, the Court of Appeals approved of the consideration of sentencing “escalation” in departing from a mandatory minimum sentence, holding that among those factors authorizing a departure was “that the government‘s actions—although not rising to the level of entrapment—purposefully escalated the crime.” Id. at 535.
The theory of “escalation” was again discussed in People v Ealy, 222 Mich App 508; 564 NW2d 168 (1997). In Ealy, the defendant argued that “the police committed sentencing entrapment by wrongfully inducing him to participate in transactions involving escalating amounts of cocaine and exposing him to greater penalties.” Id. at 510. The Court in Ealy applied the current objective test for entrapment to the “escalation” claim:
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-
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, 448 Mich 58, 79; 528 NW2d 176 (1995), in which three justices approved of the adoption in Shinholster of the concept of “escalation” as a mitigating factor surrounding an offense.1
Thus, the entrapment defense аnd 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, оr 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 Maffett, 464 Mich 878 (2001), I believe that the judicially crafted entrapment defense—in all its forms—is without constitutional foundation. Once a “defendant has engaged in conduct constituting all the elements of a criminal offense, as defined by the Legis
Sentencing entrapment or escalation is no different. Once a defendant has сommitted 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
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
III. SENTENCING ENTRAPMENT OR ESCALATION AND OUR LEGISLATIVELY MANDATED SENTENCING SCHEME
As this Court noted in People v Babcock, 469 Mich 247, 255-256; 666 NW2d 231 (2003), the promulgation of statutory sentencing guidelines has changed the legal landscape:
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 withinthe 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 legislative 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.3
In addition, although I agree with the majority that Blakely, supra, does not invalidate our sentenсing 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 P. Cohen and Gary Fields, High-Court Ruling Unleashes Chaos Over Sentencing, The Wall Street Journal, July 14, 2004. Given the lack of any dеfinitive 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
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 —; 124 S Ct 2531; 159 L Ed 2d 403 (2004), does not appear to affect scoring systems that establish recommended minimum sentences, such as we have in Michigan. Moreover, I tend to agree with the lead opinion‘s ultimate rationale. The lead opinion notes that sentencing entrapment and sеntencing manipulation are distinct theories. However, the lead opinion then concludes that the same test is to be employed in cases of sentencing entrapment and in cases of sentencing manipulation. I must respectfully disagree with such an approach.
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 sentence, 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 оut 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
WEAVER, J. (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 Daniel1 and People v Babcock,2 I would consider all relevant factors, including police conduct, when determining whether there is a substantial and compelling reason to depart from the sentencing guidelines ranges, and I would not limit how the factor of police conduct may be considered.3
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 —; 124 S Ct 2531; 159 L Ed 2d 403 (2004), which considered whether facts that increase the penalty for а crime beyond the prescribed statutory maximum sentence must be submitted to the jury, does not affect Michigan‘s scoring system, which establishes the recommended minimum sentence.
YOUNG, J. (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 entrapment, 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, 469 Mich 247; 666 NW2d 231 (2003). Accordingly, although I concur in the majority‘s decision to remand for resentencing, I dissent from its analysis.1
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
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.6 Id.
The primary flaw in the majority‘s analysis, in my view, is that it conflates the separate Babcock requirements of objectivity and verifiability into a single evidentiary requirement. Again, Babcock requires that the factor itself be both objective and verifiable. The majority, however, takes the view that if there is an objective and verifiable showing of the existence of a factor, Babcock is satisfied. I disagree.
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.7 The adoption of the Fields/Babcock test was
Accordingly, on remand, I would preclude the trial court from considering as a proper sentencing factor defendant‘s intent.
CORRIGAN, C.J., concurred with YOUNG, J.
KELLY, J. (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 Washington1 to Michigan‘s sentencing scheme. The issue was neither raised nor briefed in this case. It is a jurisprudentially significant issue. I would not decide it without full briefing and oral argument.
Notes
People v Daniel, 462 Mich 1, 22-23; 609 NW2d 557 (2000) (WEAVER, C.J., dissenting). 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 —; 124 S Ct 2531; 159 L Ed 2d 403 (2004). 542 US —; 124 S Ct 2531; 159 L Ed 2d 403 (2004).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. [Fields, 448 Mich at 82 n 1.]
A court may depart from the appropriate sentence range established under the sentencing guidelines [
(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 presentence investigation report, that the characteristic has been given inadequate or disproportionate weight. [
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 underIf 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 recommended sentence range but is less than the mandatory minimum sentence is not a departure under this section. [Emphasis added.]
In the second example proffered by the majority there is evidence that the defendant, after assaulting the 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.
[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, 448 Mich 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, 448 Mich at 81-82.
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 evidence, such as testimony that the defendant cries himself to sleep every night or that he wrote apologetic letters to the victim‘s family. In such a case, the remorse would be verifiable, but it would not be objective.Sentencing entrapment has been discussed by our Court of Appeals in People v Ealy, 222 Mich App 508, 510-511; 564 NW2d 168 (1997). There, the Court of Appeals referred to the definition from the United States Court of Appeals for the Ninth Circuit: “[S]entencing entrapment occurs when a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment.” United States v Staufer, 38 F3d 1103, 1106 (CA 9, 1994) (citations and quotation marks omitted.
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 othеr court of which we are aware. However, we believe that contextually, sentencing escalation can mean either sentencing manipulation or sentencing entrapment, as defined above.