People v. Fields

448 Mich PEOPLE v FIELDS 3, (Calendar 13). Argued Docket No. 97269. November No. 7, 1995. Rehearing post, Decided March denied 1224. pleaded Court, guilty Warren P. Fields the in Oakland Circuit Sosnick, J., possession Edward with intent to deliver more grams than 50 but less than 225 of cocaine and was sentenced ten-year Appeals, below the minimum sentence. The Court Danhof, P.J., JJ., unpub- Beasley, and Gillis and W. R. in an opinion, lished memorandum remanded the case for resentenc- (Docket 147473). ing appeals. No. The defendant opinion by joined by In an Brickley, Chief Justice Justices Supreme Boyle, Riley, Mallett, Court held: Only objective may those factors that are and verifiable be compelling used to determine whether substantial and reasons 14.15(7401X4) 333.7401(4); exist under MCL MSA to deviate imposed by Legislature. from the minimum sentence imposing 333.7401(4); 1. In a sentence under MCL MSA 14.15(7401X4) compelling for substantial and reasons below minimum, statutory only capable of factors verifica- i.e., may applied, tion be those actions or occurrences are judge, defendant, external minds of the and others making decision, capable being involved in confirmed. prearrest postarrest Both factors be used. compelling” acquire 2. The words "substantial and cannot meaning judges regularly that would allow use broad discre- Rather, tion deviate from the minimum sentence. substantial and were reasons intended to exist exceptional evaluating presents cases. In whether a case substantial and reasons to below manda- tory sentence, place particular empha- minimum courts should mitigating surrounding sis on circumstances the offense that warranting innocence, finding fall short of but render culpable, possibility defendant less because of the setting did not consider such behavior the mini- addition, record, prior In factors such as the defendant’s _mum. References 2d, Am Jur Criminal 541. §§ Law See ALR Index under Sentence and Punishment. Fields determining depar- age, history are whether work useful arrest, arise a defendant’s is warranted. Factors that after ture factors, weight preexisting assigned the same as

should cooperation officials such with law enforcement factors as given special be attention. should particular a factor is a factual determina- 3. The existence of reviewed for clear error. for the trial court and should be tion particular objective A a is and verifi- that factor determination A matter of law. determination should be reviewed as a able present objective particular in a case and verifiable factors that compelling reasons from substantial and to constitute statutory for abuse minimum sentence are to reviewed the of discretion. case, judge reasons this the trial listed several for 4. In deviating statutory Because the from the minimum sentence. verifiable, objective and and it is were not all because

reasons judge the trial would have found substantial unclear whether statutory compelling minimum reasons to the and deviate from factors, objective solely is the of and verifiable remand on basis compel- required substantial and for a determination whether statutory ling to minimum. reasons exist deviate Boyle, concurring, agreeing majority’s and with the Justice intent, 333.7401; analysis legislative that of stated further MCL 14.15(7401) satisfactory explanation provide fails to a of MSA necessary departure compelling for and reasons substantial majority approaches prescribed The a minimum sentence. inadequately phrase the as if the Court has author- the defined law, decide, ity factors should be a matter of which as application objective through of an included or excluded test, quandary by the would resolve the verifiable while dissent concluding is unwork- and verifiable standard that an subjectively judicial consider favor discretion to able in of broad particular offender and the all the circumstances that surround clarification, Rather, legislative particular in lieu of the offense. provide guidance Supreme to the trial and could the Court implementation legislative appellate the intent courts meaning of well-established substantial reference the regarding compelling the burden and the traditional standards proof persuasion. burden of the Recognizing primary legislative intent of the statute to long drug imposition through minimum deter crimes sentences, it rests on the defendant is evident that burden on the reasons substantial to demonstrate required why is law a minimum sentence below record overriding damage to the law’s and would not do dictated 448 Mich purpose. presumption that no minimum exists lesser sen- prescribed by imposed. tence than that the statute should be proves Where the defendant advances and substantial and permit reasons that that no conclusion reason- impose statutory minimum, able decisionmaker would de- parture permissible. imposition Where arguable, departure minimum is debatable below the mini- precluded. mum is departure It is clear that substantial reasons below the presumptively enough allowable minimum sentence are not meet the defendant’s burden. Under the substantial evidence test, only the amount of evidence that reasonable mind would accept support required, despite as sufficient to conclusion is possible preponderance supporting of evidence a different possibility impermis- conclusion. The of a debatable outcome is justify sible. While substantial reasons exist to a course of action, inadequate countervailing, supe- those reasons will be if presented compel rior considerations are a conclusion against such action. presumption sentencing requirements minimum 14.15(7401) 333.7401; legislative of MCL MSA advance the valid goal analogous of crime is deterrence to the rational basis test. argument It is the need for an that the conclusion forces that presumptive applied the rule should be not that is at the crux 7401(4), compelling of the substantial and reasons of § understanding makes the rational basis test a valuable tool for overarching this people standard. The intent of to § deter committing crimes, drug-related legitimate from like the state review, presumed interest advanced under a rational basis is imposition by be advanced the of at least the minimum sen- by tences commanded the It statute. when a defendant argument legisla- advances an that a convinces court that the reasonably perceived by tive intent could not be be advanced imposition sentence, of the minimum that substantial and compelling departure reasons for from the minimum' sentence long have been articulated. As as it is evident from all the presented question departure considerations that the debatable, minimum is no substantial reasons compelling departure from the minimum should be found. In effect, proof satisfy sentencing burden is to court that presented legislative the circumstances no reasonable judicial impose mandatory decisionmaker would minimum sentence. part Affirmed in and remanded. Cavanagh, joined by Levin, dissenting,

Justice Justice stated Fields Opinion of the Court sentencing majority improperly limitations adds by Legislature. not intended discretion any provided expressly Michigan has not may sentencing types court of factors on the limitations factor, particular consider, given any weight to be or the compelling reasons exist determining substantial and whether pursuant mandatory departure minimum sentence from a for a 14.15(7401X4).Rather, specified 333.7401(4); it MSA to MCL departure ais substantial for such the threshold by of the case. the circumstances reason established particular to a sentencing defendant and relates to Because weighing of all sentencing judge, particular definition must court before the factors and circumstances Legislature, either subjective. There is no direction be history, legislative language or in its of the statute in the objec- be limited to reasons should substantial logically evidentiary must be bases tive factors. While definition, verifiable, weighed, factors are how the individual subjective. must be evidentiary record will unlimited discretion. This is not reviewing such reasons court that demonstrate to a have to case, exists. In this such a record exist. part of this case. took no in the decision Justice Weaver — — From Statu- Deviations Controlled Substances Sentences tory Minimum. used Only and verifiable that are those factors compelling reasons exist whether substantial and to determine imposed drug- the minimum sentence to deviate from (MCL 333.7401[4]; 14.15[7401][4]). MSA crimes related L. Thomas General, Kelley, Frank J. Attorney Thompson, Pros- General, Richard Casey, Solicitor Todd, Chief, F. Joyce Appellate Attorney, ecuting Williams, C. Pros- and Robert Division, Assistant people. for the ecuting Attorney, Young) L. Stuart for the Young Kaluzny (by & defendant. upon called In this case we are

Brickley, C.J. compelling constitute substantial decide what 14.15(7401)(4) 333.7401(4); MSA reasons under MCL 448 Mich 58 op Opinion the Court to deviate from the minimum sentences im- posed Legislature. We decide that only those factors that are verifiable may judge used to and compel- whether substantial exist, ling reasons and thereby uphold the basic tenets of the test announced the Court of Hill, Appeals in App 102; 192 Mich (1991). NW2d 913 The trial court this case used both objective and subjective factors to determine that a deviation from the ten-year minimum sen- appropriate. tence was we Consequently, vacate imposed sentence and remand to the trial whether, court for the determination in consider- ing only those that are objective factors and verifi- able, there are substantial reasons to sentence this defendant to a years term of below the statutory minimum.

i defendant, Fields, Warren Perry pleaded of one count guilty possession with intent to de- liver more than 50 but grams less than 225 of cocaine. 333.7401(2)(a)(iii); 14.15(7401)(2)(a)(iii). MCL MSA has prescribed a minimum sentence years also, ten in prison for this crime. It how- ever, empowered has to depart courts from some the minimum sentence prescriptions under certain 333.7401(4); circumstances. MCL MSA 14.15(7401)(4) provides:

The court may depart from the minimum term of imprisonment (iii), (2)(a)(ii), authorized under subsection (iv) if the court finds on the record that there are substantial and reasons to do so. After accepting the plea, defendant’s the court heard arguments on a request by the defense that 63 Fields v op Opinion the Court imposed statutorily depart judge below the listening to statements After

minimum sentence. applied judge issue, the on the from both sides App People Troncoso, 187 468 NW2d Mich (1991), from the statu- 287 and decided judge tory his reasons minimum. The summarized departure as follows: for

from the man of wouldn’t based record. gram (cid:127) I’m upon mark, satisfied I’m 24 mandatory 10-year matter but also satisfied — years record, 54 grams. the basis for age you your standing just ^[1] is that This you were over involvement alone you’re appears have my deviating obviously no the 50 young prior be, be established. can years with a good job You had a for over five record, taking into considera-

good work and I’m you. I You tion the extreme remorse that see from guilt, your this. You’ve admitted are devastated and responsibility. you’ve accepted your co-workers, as got family[,] You’ve friends and letters, you indicate do—are a evidenced you I think have person capable of rehabilitation. rehabilitation, potential and I’m satisfied a that totally for others, help although your motivation to outbalanced, least it respects in some cold, drug you’re not a callous indicates dealer out to profit solely your own benefit. ten-year judge the to a mini- The mum, then deviated from prison term of the defendant appealed, twenty years. plaintiff five to the Court of citing resentencing, Appeals remanded for supra, Hill, had decided as the which been appealed appeal pending. then was The defendant to this Court. years possession provides of ten for the The statute for a sentence grams grams or more but less than

with intent to deliver 50 333.7401(2)(a)(iii); any containing MSA cocaine. MCL mixture 14.15(7401)(2)(a)(iii). grams possessed 54.07 of a cocaine- The defendant time of his arrest. based mixture at the Mich op Opinion the Court

II A In the Legislature considered bill change the penalties imposed on controlled sub- legislative stance offenders. The of the bill history it. indicates was intended to combat an in- crease crime. The drug-related House Legisla- tive Analysis stated: persons Some claim that the state has failed to drug

stem dealing penalties drug traffic because the for enough,

are not severe and law enforce- ment potential inadequate. tools are They contend that the profit

for in drug dealing is so great that Michigan’s present penalties pose little no de- violators, terrent proba- would-be with lenient parole tion policies weakening threat imprisonment Legislative still further. [House 4190, Analysis, 17, HB Analysis, Third May 1978.] legislative analysis arguments summarizes advanced both supporters opponents bill. One argument in support advanced of the bill summarized, was penalties

The severe imposed by the bill would important have an dealing. drug deterrent effect on illicit present With the drug penalties pa- possibilities, role will them seems caught dealers feel if they spend little or no in prison. time The risk to small, relatively potential and the for profit great. Consequently, only penal- more severe ties and the certainty punishment will serve deter would be violators. [Id.] In order to combat this problem, decided to impose harsh minimum sentences drug dealers. law went into effect September 30, 1978. Fields op Opinion the Court Legislature passed years later, several

Ten original reducing statute, amendments to the imposed. These amendments minimum sentences §7401(4), which al- included the addition of also judge from minimum a trial to deviate lowed if there Set out in the statute were sentences compelling reasons to do so. Ac- substantial and Agency, cording to the Senate Fiscal supporters argued that the bill’s minimum by allowing judges to terms, reducing larger quan- the minimum for tities, the bill would moderate what has been an give judges uncompromising law and would making sentencing greater flexibility in decisions based on the individual circumstances of a case. 598, 600, 603, Agency Analysis, Fiscal SB [Senate 610, Analysis, August Third 1988.] Legislative Analysis added, The House The bill would make for a law that was strict unduly interfering judicial discretion. without with (Substitute Legislative H- Analysis, SB 277 [House 2), 16, Analysis, First December 1987.] again, In the amended law larger order to return the minimum sentences for original, longer lengths. quantities to their 1989 7401(4) unchanged. PA 143. Section was left

B compelling” The words and caused "substantial In almost immediate conflict the lower courts. People Downey, App 405; 183 Mich 454 NW2d v (1990), Appeals panel analyzed the Court of statutory several sentences that deviated from the panel judicial that minimum. The concluded dis- 448 Mich Opinion op the Court "very limited,” cretion under the statute and was set strict standards for kinds of what reasons could compelling. be considered substantial and Central requirement only to those standards that was objective capable of factors verification could be departure justify statutory used to mini- mum. The Court also held that that factors existed before the defendant was could arrested objective. at considered Id. 415-416. App

In Krause, Mich (1990), Appeals NW2d 900 Court affirmed "objective requirement the forth in and verifiable” set

Downey. The Court defined verifiable factors as those "actions or occurrences judge, which are external to the minds of the making defendant and others decision . involved capable being . . [that are] con firmed.” at Krause 358. The Court in Krause also Downey by allowing judges test, modified the trial prearrest postarrest to use both factors. It postarrest however, warned, factors should be used with caution because of the risk defen postarrest dants will create events to influence the sentencing judge. supra Krause, at 358-359.

Judge arguing Krause, Griffin dissented in long as as factors used to deviate from the compel- minimum were substantial and ling, objec- they it should not matter whether were tive and verifiable. He noted that neither legislative history, statute, the relevant nor meaning common of the words substantial compelling dichotomy, creating subjective/objective even at hinted Downey accused Court in Legislature. not

hurdles intended Id. 363-365.

Judge dissenting opinion later used his Griffin opinion majority in as Krause the basis for his in supra. split Troncoso, Troncoso created a in the v Fields op Opinion the Court supra.2 by Hill, In law, which was resolved case upheld Hill, in the standard enunciated the Court strong dissenting Judge wrote a Krause. Griffin arguments opinion, again restating in his Tron- coso.

hi A interpreted according to the Statutes should be approved usage any undefined common and 2.212(1). 8.3a; words within them. MCL MSA Web- College Dictionary, Edi- ster’s New World Third part, "substantial,” as, "2 tion defines in relevant imaginary strong; real; actual; true; solid; not ample; large firm; considerable; stout of consid- important value; . . . .” It erable worth or defines "compelling,” part, "irresistibly as, or relevant interesting, captivating keenly attractive, etc.; it From these definitions is evident compelling” words "substantial constitute strong language. did not wish that judges trial be able to deviate from the any Instead, minimum sentences for reason. justifying departure "keenly” reasons should "irresistibly” grab attention, our and we should recognize being them "of as considerable worth” deciding length of a sentence. legislative history 333.7401; of MCL MSA

14.15(7401) interpretation supports this compelling. passing By words substantial and MCL 14.15(7401), Legislature hoped 333.7401; MSA keep drug prison long periods, dealers society them to deter both .to remove thirteen-judge special panel, Hill was decided under Admin 1990-6, Hill istrative Order No. 436 Mich lxxxiv. was a seven six decision. Mich . Opinion op the Court following example. Legis- others from their House Analysis, Analysis, May 4190, 17, lative HB Third supra Hill, 1978. See also at 116-117. In this compelling” context "substantial quire meaning cannot ac- judges that would allow to trial regularly use broad discretion to deviate from the statutory interpretation minimum. Such an would Rather, defeat the intent of the statute. it is Legislature reasonable to conclude that in- tended "substantial to reasons” exceptional exist in cases. legislative history

It true that the of the 1988 7401(4) § amendments indicates that was meant to judges flexibility allow some in under rigid formerly legislative analyses law. The consistently mention a desire to "moderate” an "uncompromising” through judicial law discret Legislature presumed However, ion.3 will be under established rules of construction to have intended that its amendments of statute harmony be in construed connection and in with provisions the other of the statute. Williams Secretary State, 202, 338 Mich 207; 60 NW2d (1953). moderating effect of the 1988 light amendments should therefore be read in overarching Legislature intent of the to deter people committing drug-related crimes. maintaining

We believe that the best method of moderating by the limited but effect intended uphold "objective is to and verifia- recently approved by Ap- ble” test the Court of peals supra. judges Hill, test This allows many traditionally consider the factors utilized formulating provides sentences. It also sufficient 3 See, e.g., 598, Legislative Analysis, Analysis, House First SB 17, February 598, 600, 603, Agency Analysis, Senate Fiscal SB 610, January 27, 1988; Analysis, Agency First Fiscal Senate 598, 600, 610, Analysis, 29, Analysis, August SB Third 1988. v Fields Opinion of the Court Legislature’s

restrictions assure that the intent passing the statute will not subsumed be exception of what is an to the use rule of intended long mandatory sentences.

B respect Judge opinion, We voiced Griffin judicially Troncoso, these are concocted contemplated Legislature by boundaries not the in the definitions of the words themselves. Tron- supra undoubtedly coso, at 574. This is true to agree Nevertheless, some extent. we with the ma- jority in Hill that the Troncoso standard does not adequately Legislature’s keep reflect the intent to drug dealers off the streets and to deter others following paths. Legislative from Analysis, their House Analysis, May 17,

HB Third 1978. subjectivity Furthermore, the of the Troncoso appellate sentencing standard makes departures review of difficult, under the statute more impairs right appeal.4 prosecutors thus the to appellate An court cannot review whether the expressed remorse, defendant has or if he has a help others, desire to factors cited the trial judge in case. this reasons,

For these we believe that the intent of Legislature giving is better served the compelling” specifi- words "substantial and a more cally meaning. Appeals defined As Court of supra Hill, remarked in at 118: if judges We find that trial can use factors that verifiable, subjective they are both and not would mandatory to mini- have freedom any they mum choose to use and for almost reason 4 see, Milbourn, 28.1109, 770.12; generally, People 435 MCL MSA v (1990). 630, 644; 461 1 Mich NW2d 70 448 Mich op Opinion the Court they hold in power would their hands the to defeat will, legislative purpose to subject only review for propor- abuse discretion and lack of Milbourn, tionality People under v 435 Mich (1990), apply NW2d the same standards mandatory. sentences that are not If one wishes argue ought to discretion, judges greater to have such argument should be addressed Legislature appellate not courts.

To leave the definitions substantial and com pelling to the discretion of the court legislative purpose enacting therefore a belies presumptive sentencing Brown, statute. (1990). App 722, 723-724; 184 Mich NW2d approving In hope test, and verifiable we appellate

to make it easier for both trial and respectively courts to sentence and review within perimeters that the intended.5 c guidance regard For additional to the mean- ing compelling,” of the words "substantial and we jurisdictions look to other that use these words to govern departures presumptive from sentences set legislature. legislatures a state Several state interpreted and courts that have defined and this language departure in the sentence context have meaning subjective limited its to exclude factors. Washington Legislature sys- The has created a presumptive sentencing guide- of sentences, tem or seq. lines. See Wash Rev Code Ann 9.94A.010 et guidelines require judge departs These that if a 5Although emphasize finding compel we a of substantial and ling exception rule, circumstances should be the and not the it should be also impossible noted that this is not a threshold that is meant to be Legislature to reach. This would defeat intent the the of in 7401(4) uncompromising People to moderate this otherwise § v statute. Shinholster, (1992). 531, 534; App 196 Mich 493 NW2d 502 Fields Opinion op the Court judge presumptive list sentence, must

from depar- reasons for substantial 120(2). In the Ann 9.94A. Code Rev ture. Wash provides Washington sev- statute, mitigating examples reasons eral departure justify a downward great to used guidelines. examples majority of these

The surrounding offense.6 of circumstances consist authority, split Although the Wash- there is a moving appellate ington toward have been courts guidelines interpretation under state’s of their an jus- used to could be factors which tify presumptive departure from a a downward App Hodges, 621; 855 70 Wash In State v sentence. Washing- (1993), Appeals of the Court P2d 291 de- downward to affirm whether ton considered provides: The statute initiator, (a) degree, an will- significant the victim was To a provoker participant, aggressor, of the incident. ing or detection, compensated, (b) or made a the defendant Before compensate, of the criminal good the victim faith effort injury any damage or sustained. conduct duress, (c) coer- under the crime The defendant committed complete cion, threat, compulsion to constitute insufficient or significantly or her conduct. affected his but which defense so, (d) defendant, apparent predisposition do no The with participate in the crime. others to induced was wrongfulness (e) appreciate capacity The defendant’s requirements of conduct to the to conform his his conduct or drugs (voluntary law, impaired or significantly use of was excluded). is alcohol per- (f) accomplished by principally another The offense was caution or sincere extreme defendant manifested son and the concern for well-being safety victim. of the policy multiple of RCW (g) operation offense of the clearly presumptive sentence in a results 9.94A.400 excessive chapter, expressed purpose light as of this RCW 9.94A.010. (h) suffered a children the defendant’s defendant or by the victim of continuing pattern physical abuse or sexual response to that abuse. [Wash is a and the offense the offense Rev Code Ann 9.94A.390.] 448 72 Mich 58 Opinion of the Court parture subjective on the of several basis factors. The court noted:

An exceptional appropriate only sentence is when from distinguish the circumstances of the it crime other category. crimes same . . . Sentencing The Reform sentenc- [1981 Act’s] ing guidelines applied "equally must be to offend- state, parts ers in all without discrimination to any as that does not to element relate the crime previous or the record of the defendant.” RCW 9.94A.340. at 624. Citations [lid. omitted.] " 'departure The court then concluded that is war- if ranted factors to common (as opposed subjective crime to factors relative to a ” defendant) particular present.’ Id. are at 625.7 departure provisions Oregon’s sentencing guidelines Washington’s. are similar The sen tencing judge may presumptive not from a Oregon sentence under law unless he finds sub compelling stantial and reasons to do so on the R record. Or Admin 253-08-001.8The Oregon, Washington, provided like has a non may justify exclusive list of reasons that used to 7 Washington subjective The one case that has held that factors constitute substantial reasons was overruled Washington Supreme grounds. the reach Court on other That court did not issue whether substantial and reasons could be subjective. Friederich-Tibbets, 250; State v 2d 866 P2d Wash (1994). reasoning Appeals panel of the Court of in Friederich- 625, Hodges, supra Tibbets has been criticized and State v Alexander, 608, (1993). App 70 Wash n P2d See also Amo, (1994). 129, 134; App (Washing State ton below the standard related Wash 882 P2d 1188 consistently impose exceptional courts have declined to sentences range in the absence of factors or circumstances to the defendant’s commission of a crime make the egregious.) commission of the crime less 8 Judges may in certain circumstances sentence defendant probation ling prison finding compel rather than without substantial and Instead, circumstances, judge required reasons. in these is findings specific make several more suited to a indicate defendant probationary sentence. R Or Admin 253-05-006. Fields Opinion of the Court departure guidelines.

a downward Most examples of these involve circumstances surround ing the oifense.9

Oregon’s appellate suggested courts have also only objective justify factors should be used to departure sentencing guide- from that state’s lines.

To assist in determining courts exist, whether substantial and reasons provides: The statute (1) (2) (3) Subject provisions to the of sections of this rule, ing tial and following mitigating aggravat- nonexclusive list of determining factors be considered in whether substan- departure for reasons exist: (a) Mitigating factors: (A) aggressor participant The victim was an in the crimi- conviction; nal conduct associated with the crime (B) (not compulsion The defendant acted under duress or complete defense); sufficient as a (C) (exclud- capacity The defendant’s mental was diminished ing abuse); capacity voluntary drug diminished due to or alcohol (D) principally accomplished by The offense was another and the defendant exhibited extreme caution or concern for the victim; (E) played passive crime; The offender a minor or role in the (F) cooperated respect The offender with the state with to the any by current the offender or other crime conviction or other criminal conduct person. cooperate The offender’s refusal to aggravating factor; with the state shall not be considered an (G) degree of harm or loss attributed to the current significantly typical crime of conviction was an less than for such offense; (H) history The offender’s criminal indicates that the of- community signifi- fender lived conviction-free within the for a period preceding cant conviction; of time his or her current crime of (I) appropriate The offender is amenable to treatment and an program treatment is available to which the offender can be period time; admitted within a reasonable program likely the treatment presumptive to be more effective than the prison reducing recidivism; term the risk of offender and the probation community safety sentence will serve interests promoting offender reformation. Admin R [Or 253-08-002.] 448 Mich op Opinion the Court 253-08-002(1) provides OAR and aggravating a list of mitigating .... examples factors commentary to the rule show that the factors permit consideration of the circumstances of a crime, particular might which be different legislature what was envisioned when it presumptive established crime. If for sentence court relies on a factor listed OAR- 253-08-002(1), its applying reasons the rule must show that sort of the case before it involves that provide circumstance. The court must explanation same kind of expressed if it relies on factors not Wilson, in OAR 253-08-002. 111 [State App 147, 150-151; Or (1992).] 826 P2d 1010 Oregon It should also be noted that the courts look Washington help to the decisions of the courts to interpret sentencing guidelines. their State v Ken- (1992). nedy, App Or 831 P2d 712 legislature passed in Kansas has also sen- tencing guidelines departure provi- a contain utilizing phrase, compel- sion "substantial and ling Sentencing reasons.” The Kansas Guidelines July Act consequently, 1, 1993, and, went into effect on yet

the Kansas state courts have not developed body interpreting of case law meaning ling phrase, compel- "substantial and indications,

reasons.” There however, are interpret language require will Kansas also this justify departure factors be used to guidelines. One such indication is that because of similari- Oregon’s states, ties between the two guidelines perhaps served as the most influential constructing model the Kansas guidelines. guidelines system Moreover, its implemented explicitly embraced retribution and incapacitation principal punish- as the reasons for imprisonment. ment Thus, the crime of con- viction, rather than offender, the nature of the has v Fields Opinion of the Court primary

become the determinant of the sentence. adopts sentencing guidelines, Gottlieb, Kansas (1993). Rptr Finally, Washing- Fed Sent as the Oregon Legislatures, Legisla- ton and the Kansas provided ture has the courts of that state with a mitigating nonexclusive list of factors. The listed exception, encompass factors, without circum- surrounding stances the offense.10 Although there are differences between these statutes and the case, statute at issue in this we way think that the words "substantial and compelling” departure interpreted have been in the sentence legislatures

context other courts and persuasive authority regard serves as to the meaning language most natural of this in this provides: The statute (b)(1) Subject provisions (b)(3), to the of subsection the follow- ing determining mitigating nonexclusive list of factors be considered in whether substantial and reasons for a departure exist: (A) aggressor participant The victim was an or in the crimi- nal conduct associated with the crime of conviction. (B) played passive The offender a minor or role in the crime participated compulsion. under circumstances of duress or complete This factor is not sufficient as a defense. (C) offender, physical impairment, because of or mental capacity judgment lacked substantial when the offense was voluntary intoxicants, committed. drugs The use of or alcohol purview does not fall within the of this factor. (D) defendant, children, or the defendant’s suffered a continuing pattern physical or sexual abuse the victim of response the offense and the offense is a to that abuse. (E) degree of harm or loss attributed to the current significantly crime of typical conviction was less than for such an offense. (3) aspect If a statutory factual of a crime is a element of the subclassify crime or severity is used to the crime on the crime scale, aspect that of the current crime of conviction aggravating mitigating used conduct only as an factor if the criminal constituting aspect of the current crime of convic- significantly tion is different from the usual criminal conduct captured by aspect of the crime. Stat Ann [Kan 21-4716.] 448 Mich Opinion of the Court Craig Larson, 432 Mich area of the law. v (1989). foreign jurisdictions 439 NW2d 899 That surrounding on circumstances have concentrated the offense committed subjective and excluded fac- interpretations our be- reinforces tors from their intention in our had a similar lief that referring compelling reasons in to substantial and 14.15(7401)(4). 333.7401(4); MCL MSA

iv A clarify the test In order to refine and further following today, observa- announced we make presents evaluating First, in a case tions. whether depart reasons to be- substantial low the particular surrounding place mandatory minimum, courts should emphasis mitigating on circumstances example,

the offense. For App 281, 282-283; Bates, 190 Mich 475 NW2d (1991), the defendant’s the trial court found that participation in the crime had consisted of providing transportation seller, for the profit. It is his involvement was not for financial sentencing judge assign appropriate for a this weight type in decid- of fact situation considerable ing mini- whether circumstances, fall mum. These kinds of which warranting finding innocence but short of culpable, espe- are often render the defendant cially less possibility because of the type Legislature did not consider this of behav- minimum sen- ior when it set the statute’s harsh tences.11_ legisla mitigating up by factors drawn The nonexclusive lists Oregon, foreign jurisdictions Washington, and Kan such as

tures support help interpret departure in this statutes us sas to regard. their iii(C) part opinion. It should be noted that See of this People 77 v Fields Opinion of the Court

Second, short, approve we nonexclusive Hill, of list factors set forth Downey for the purpose evaluating whether departure the mandatory minimum is warranted. fac- Those (1) tors were prior identified as the defendant’s (2) (3) record, age, defendant’s the defen- history.12 Downey, supra dant’s work 414-415. Krause, Third, we overrule notion from supra, factors that arise after the defendant’s arrest are disfavored. These factors should be as signed the weight preexisting same as factors such age Moreover, as or employment history. de cooperation fendant’s with law offi enforcement given cials should be special attention sentencing court. Such assistance enables the au thorities to more effectively fight drug-related crime, thus advancing the fundamental goal 14.15(7401). 333.7401; MCL MSA Legislative House 4190, Analysis, 17, HB Third 1978. Analysis, May We note that sentencing federal guidelines allow courts to below minimum circumstances, sentences under similar as do the See, sentencing laws several states. 18 USC e.g., 3553(e); 5K1.1; 37-2732B(8); USSG Idaho Code Or § 253-08-002(1)(a)(F). Admin R Finally, we hold that the existence or nonexis- tence of a particular factor is a factual determina- determine, for tion court should therefore be appellate reviewed an court Legg, v clear error. Mich App 197 134; (1992); 797 People Harvey, NW2d (1994). App Mich NW2d The determi- particular nation that is objective factor burden of were also mentioned as an dent and reliable source. mitigating "The facts of proof circumstances is on the crime that surrounding approved defendant mitigate factor. the offense from an the defendant’s show Hill, supra existence at 110. culpability,” indepen- any- 448 58 Mich Opinion of the Court appellate verifiable should be reviewed A courts as a matter of law. trial court’s determi- nation that present and verifiable factors particular in a case constitute substantial compelling reasons to from the statu- tory minimum sentence shall be reviewed for abuse of discretion.

B give guidance regarding In order to further meaning compelling” of "substantial and within 333.7401(4); 14.15(7401)(4), the context of MCL MSA approval following we cite with cases from Appeals. Harvey, supra, the Court of In the Court judge’s departure affirmed a trial tory from the statu Harvey minimum. The defendant in had no prior age thirty-three record at and had steadily employed been at General Motors for years. strong family support fourteen He had program year had been on a tether for about a was, before where he in the words of exemplary probationer.13 court, the trial an We age employment find the combination of the history espe of the defendant in this case to be cially Although noteworthy. courts often cite the age young of a defendant as a reason to deviate person sentence, from a minimum a who has age advanced to middle with a clean slate and a present solid career also a case for proven capacity deviation, as someone with a society live within the bounds has set. People App Shinholster,

In 196 Mich (1992), Appeals NW2d the Court of found that Harvey put probation The defendant on was as a result of a less serious offense committed in the same transaction as the one at issue in that case. v Fields Opinion of the Court

substantial and reasons existed de- part from the minimum sentence. age prior thirty-six, defendant, at had record eleven-year-old included an conviction possession marijuana, history steady for the employment, strong family support. In addi- government’s tion, Court found ac- although rising entrap- tions, not to the level of purposefully ment, escalated This the crime. last particular importance approval is of our factor resolution reached Shinholster. As a mitigating surrounding offense, circumstance weighs heavily it favor a deviation from statutory minimum. Poppa, App 184;

In v 193 Mich (1992), argued NW2d 667 the defendant that sub- stantial and parture reasons' existed for a de- pointed statutory from the minimum. He cooperation to his extensive officials, with law enforcement part defendant’s assertion that problems having the defendant had been the time his arrest were result of his recent emigration difficulty adjust- Romania his ing to his newfound freedoms. Court held that the trial court had within acted its discretion finding not a sufficient basis to from the minimum. correctly implemented

We these find cases requirements approve of the test we and mod- ify today. appellate As the of this state courts test, continue work with and this we refine progressively it will believe become easier to eval- compel- uate what are and are not substantial and ling fact, reasons under the statute. In we view the body appropriately of a case existence decided advantage law to be distinct to our affirmation of Downey-Krause-Hill test. 448 Mich Opinion by Boyle, V applying principles present In case, these to the sentencing hearing we note that at the defendant’s judge deviating the trial listed several reasons for statutory from the not all minimum. These reasons were objective and verifiable as we have now judge defined those terms. The considered in his analysis expressed the defendant had "ex- accepted responsibil- remorse,” treme ity that he had for his actions and was devastated their help results, and that he was motivated to others. acceptable factors, These Troncoso, while under we inappropriate. now find to be judge

However, the trial also listed several fac- appropriate tors that are under the standard we today, including age, announce the defendant’s his record, solid work and the fact that the defendant prior justice had no contact with the criminal system. Sentencing normally job appel- is not a for the procedure being court, back to late the usual to send the judge resentencing case the trial if it is respect found that the sentence is in some defi- People Earegood, 383 Mich 173 NW2d cient. 205 (1970). judge It is unclear whether the trial this case would have found substantial and com- pelling reasons to mini- deviate solely mum on the basis of and verifiable factors.

Therefore we remand the case to the trial court judge for the whether, to determine under the today, standard announced he finds substantial and reasons to deviate from the statu- tory respects, minimum. In all other the decision Appeals of the Court of is affirmed. JJ., Boyle, Riley, Mallett, and concurred with Brickley, C.J. (concurring). J. Boyle, I would affirm the deci- People v Fields Boyle, by Opinion Appeals, of Court reasons sion the of albeit for by other than those articulated that Court. The majority analyzes the intent of the enacting original in MCL both the version of 14.15(7401) amending 333.7401; MSA in statute, alia, inter to add subsection Bkickley, 4. analysis, major- C.J., ante 64-65. From at this ity "overarching an concludes that the statute has committing drug- people intent related ... to deter allowing crimes,” 68, id. at while trial flexibility courts some to below the statu- tory unique minimum sentences in cases in Legislature’s passing in which "the statute will intended to be an intent not the use of what is subsumed exception long to the rule Although mandatory agree Id. at 69. I sentences.” majority’s legislative analysis with the my provide intent, satisfactory view, fails statute to

explanation of "substantial and com- pelling majority approaches reasons.” The in- adequately defined "substantial authority reasons” decide, if the as Court has the law, as a matter of which factors should be through application included or excluded of an " ” 'objective and verifiable’ test. Id. at 68. quandary by concluding dissent would resolve the an and verifiable standard "is un- post workable,” J., at in favor of Cavanagh, judicial subjectively broad discretion consider particular all circumstances that surround the particular offender and the Id. 90. I offense. legislative clarification, believe that lieu of we provide guidance appellate could to the trial and implementation legislative courts of intent meaning reference well-established compelling” "substantial and the traditional regarding proof standards the burden of persuasion. although However, burden of I do not join majority’s approval in the v Shinhol- 448 Mich Opinion by Boyle, J. light ster,1 Brickley, C.J., of the ante at 78-79, provide Appeals of extensive efforts the Court guidance interpreting meaningful the statutes issue, at Court, I it believe would be a disservice to that dispose courts,

the trial and the bar to question opinion. plurality Accordingly, this concur in a I Brickley’s Chief

with Justice resolution. i Recognizing legislative primary intent drug through imposi- statute to deter crimes long sentences,2 tion of minimum it is evident rests on burden the defendant to demonstrate substantial why reasons on record required by a minimum sentence below that damage law is dictated and would not do to the overriding purpose. presumption Thus, law’s is, tory cases, in all that at least the minimum statu- imposed.

sentence should be It when is a. justifications can defendant demonstrate for a lower minimum sentence that are both substantial departure possible. that such a

ii Initially, it is clear that substantial for reasons departure presumptively below mini- allowable enough mum sentence are not to meet the defen- dant’s burden. Satisfaction the "substantial evi- appellate review, dence test” standard of exam- (1992). App 1 196 Mich 493 NW2d 502 This is with a dicta vengeance. question whether defendant’s successive criminal acts involving police entrapment mitigating not stance is that does not amount can to a circum significant far too to be resolved the context a record present question. inability appreciate goal legislative per An fundamental this dissenting opinion fatally attempt meates the alize a flaws the to ration subjective discretionary power and unlimited trial afforded departure courts for below the mandate. v Fields Opinion Boyle, pie, used for review of decisions of administrative agencies, inadequate would a to meet "substan- compelling requirement. tial and reasons” Under test, the substantial evidence "the amount of accept evidence that a mind as reasonable would support required, sufficient to a conclusion” is In (1994) Payne, 679, 121 692; re Mich 514 NW2d J.), (opinion despite possible prepon- of Boyle, supporting derance of evidence a different conclu- People, 690, 8, sion. Id. at n also Jackson v see (1860), quoted Payne Mich possibility at 690. The impermissible of a debatable outcome is compelling under the substantial and evidence presumed standard. The to have knowledge meaning of the of such terms and to consciously proof by have the term elevated the burden of

"compelling.” Thus, unless those reasons compel minimum also the conclusion that a lower imposed, requirements sentence should be 7401(4) § have not been met. Demonstration of the distinction between sub- compelling stantial reasons and reasons can be Supreme found in several United States Court addressing questions decisions side the constitutional out- sphere of criminal law.3 In Committee for Religious Liberty Nyquist, Public Ed & 413 US (1973), 2955; L S Ct 37 Ed 2d 948 the Court package programs concluded that a of financial aid nonpublic elementary secondary schools, for and “compelling,” 3 I examine the use of the terms and "substantial” as phrase reasons,” legal well as the "substantial in a understanding proper application context to aid courts of those present setting. generally terms in the While the words of a statute "according approved usage are understood to the common and of the language,” phrases acquired peculiar words and "as have appropriate meaning according law, in the shall be construed and understood peculiar appropriate meaning.” 8.3a; to such MCL 2.212(1). MSA I do not find the use of the words "substantial” "compelling” cases, separately following as terms of art in the I but possibility reading phrase do not discount of such a "substantial and reasons.” 448 Mich 58 Opinion Boyle, J. through created education and amendment of New York State’s laws,

tax violated the Establishment readily Clause. The Court admitted that the state enacting legisla- had "substantial tion. Id. reasons” for question 795. "Few would most legislative findings supporting this statute.” Id. programs Court, however, still found that the constitutionally impermissible. rejecting were the state’s the In

argument preserving portion legislation allowing parents tax credits to attending nonpublic schools, children the Court precedent concluded that the rationale of case "plainly compels the conclusion that New York’s package tax violates the Establishment Clause.” Id. 791. at Orbeck, 518;

In Hicklin v US 98 Ct 2482; S (1978), 57 L Ed 2d 397 the Court considered the constitutionality, Privileges under and Immu- Clause, nities of a state statute deemed "Alaska Claiming unemployment, Hire.” to desire reduce required categories Alaska Hire and a number of of oil gas agreements related to contain clauses requiring employment qualified resi- Alaska preference Citing dents, over nonresidents. Witsell, v 1156; Toomer S US 68 Ct 92 L (1948), Ed 1460 admitted the Court that the Privi- leges preclude and Immunities Clause not did state employment opportunities efforts to "bias in favor residents,” of its own 437 US but noted that only permissible such discrimination was where a exists, "substantial reason” i.e., for such action " something 'there is that indicate noncitizens peculiar constitute a source of evil which the ” [discriminatory] statute is aimed.’ Id. at 525-526. appropriately The Court held no substantial justify reason existed Hicklin to the state’s action, and, moreover, did, Toomer, even if it inter "compelled] alia, the conclusion that Alaska Hire Fields Opinion Boyle, J. pass muster” fails to constitutional

nevertheless preference state residents because the blanket relationship to the a substantial did not bear reducing unemployment. purpose Id. at avowed 526-527. (cid:127) Nyquist Hicklin demonstrate Both strong, solid reasons while substantial reasons — justify a course exist considerable value — inadequate if action, coun- of tervailing, superior those reasons will be presented are considerations against compel In such action. a conclusion superior above, those consider- the cases discussed requirements of the Establishment ations were the Privileges Clauses, and Immunities which striking legislative down the forced conclusion question. precepts action in Those constitutional "compelling” arguments présumptively are unless exception they are for an irrebuttable, ling. are of such force that

being compel- both substantial and superior present case, In the considera- decisively met and surmounted tion that must be overarching legislative intent of deterrence is the drug crimes. It is to further clarification of the "substantial and reasons” standard of I turn. review which now

hi The "substantial and reasons” stan- challenges dard is most familiar to state action burdening rights discriminating fundamental or against suspect e.g., See, Dunn v Blum- classes. stein, 330, 335; 995; 405 92 S Ct 31 L Ed 2d 274 US (1972) (striking require- down durational residence ments). scrutiny Under this strict standard of impermissible review, unless it such state action is promote necessary a means to a is state interest. Id. at 337. 448 58 Mich by Opinion Boyle, J. imposing compel- cases

While a substantial ling reason standard review where state action impinges rights on fundamental demonstrate the imposing represents, burden such a standard apt analogy present more to the case is the less applied equal restrictive "rational test basis” protection against impli- claims state action that right suspect cates no fundamental tion. Under both the rational classifica-

basis strict scrutiny similarly high proof tests, a is standard required party challenging presumptively of a position. test, however, valid The rational basis presumes that the state action is valid. Such a presumption analogous presumption to the requirements the minimum of MCL 14.15(7401) legis- 333.7401; MSA advance the valid goal lative of crime deterrence.

In rational cases, basis review the state need prove, legitimate articulate, not a state inter- presump- est advanced its action. "There ais objectives tion that articulated the ordi- pursued,” actually nance are the ones and such presumption controls an "'unless examination of [the . . circumstances forces . conclusion] they goal legis- could not have been " City City, JBK, lature.' Mo, Inc of Kansas 1986) (WD Supp added), (emphasis Mo, F citing Creamery Minnesota Co, v Clover Leaf 456, 463, US n 715; S Ct 66 L Ed 2d 659 (1981). plaintiffs brought variety JBK, In of constitu- against challenges regulating tional an ordinance massage parlors. holding plaintiffs’ In process equal protection substantive due claims did not survive the defendant’s motion for summary judgment, the court noted that to sur- party challenging motion, vive such a legislation must "offer evidence of a substantial 87 v Fields by Opinion Boyle, J. (or upon argument based at least an

character logic) presumption” the which rebuts added). validity. (emphasis 904 Id. at constitutional The court described argument that must be party opposing by the motion to be advanced one that "forces goal

the conclusion” that legislation for the was not an advanced actually pursued. Id. Supreme applying the

United States Court cases challenges equal protection rational basis test to necessary clarify "evidence of what is constitute "argument an based a substantial character” and upon compelling logic” rebutting presumption challenging upholding "[T]hose state action. legislative judgment must convince the court that legislative facts on which the is classification reasonably apparently be con- based could not governmental ceived to be true decision- Bradley, 93, 111; 99 S Ct maker.” Vance v 939; US added). (1979) (emphasis L Ed 2d challenging state reviewed under Parties action argument test must advance an the rational basis precluding prevail challenges "cannot debate. Such long 'it is evident from all the considerations so as presented question . . . that is at least debat- ” supra Creamery Co, at 464. able.’ Clover Leaf argua- very "[I]t is the admission that the facts are from constitutional attack” the ble that immunizes challenged. supra being Vance, 112. statute argument that "forces the It is the need for an presumptive rule should not conclusion” applied I the crux of that would find to be at be § 4, reasons” of the "substantial makes the rational basis test a valuable tool understanding noted several this standard. As for times, "overarching 333.7401; MCL intent” of 14.15(7401) people commit- is "to deter MSA legitimate ting drug-related crimes.” Like the state 448 Mich Opinion Boyle, J. review, interest advanced under this rational basis legislative presumed intent advanced imposition by the of at least the minimum sen- by tences commanded the statute. It is when argument a defendant advances an that convinces legislative a court that the intent "could not rea- perceived” sonably imposi- by to be be advanced case, tion of the minimum in the sentence depar- "substantial and reasons” for ture from the minimum sentence have been artic- long Thus, ulated. it as as is evident from all the presented question considerations parture the de- of statutory from debatable, the minimum is compelling departure no substantial reasons from effect, the minimum should In be found. the bur- proof satisfy of den is to court that presented leg- in the circumstances no reasonable judicial impose islative or decisionmaker would mandatory minimum sentence.

iv The standard a described is difficult but not impregnable barrier to a defendant convicted a drug offense under MCL 333.7401; MSA 14.15(7401). example, For where a defendant sub- stantially investigation assists after arrest in the prosecution defendant, of another where such cooperation by proper is verified authorities, departure may below minimum order. 3553(e); Imposition See 18 § USC USSG 5K1.1. statutory minimum sentence where the defen- provided discourage dant has assistance would cooperation, per- future because other defendants ceive that no benefit can be derived their assistance, action.4 such Without the task for au- tial assistance ^[4] Cooperation great may risk to the defendant’s thus be with police strong is 'clearly indication of rehabilitative personal an act fraught safety. with the Providing potential. poten such Fields Opinion Boyle, J. activity fight drug continuing

thorities aggregate difficult, effect deterrent made more drug crimes—the commission on continued goal 333.7401; MSA of MCL fundamental 14.15(7401) the failure thus retarded —is requirements. statutory However, deviate although given Legislature the trial courts has stringent discretion, in its confined standard of exercise, circum- not follow other it does uniquely stances of a substantial compel deviation below character so as shown. not be minimum sentences history clearly legislative indicates, ante at As the flexi- intended to allow also 64-65, long bility in individual circumstances. judicial history define "sub- efforts to tortured compelling” by to some reference stantial legis- negate express does not touchstone that preference graphic that is a illustration we lative by amorphous terms are not served resort well defining compelling” like without "substantial example. only by meant, if a stat- what is Where prescribes penalty hand, on the one ute a serious judicial and on the other invites avoidance policy underlying construction, simply legislative guidance, have decisions In lieu of shifted to another forum. been resort to the stan- I would any of burden of dards inherent proof formulation persuasion. The defendant and burden evidence, must with it must come forward no rea- sufficient to convince the trial court that impose the minimum sonable decisionmaker would ordinarily sentence assessed. summary, presumption

In exists no prescribed by lesser minimum than that sentence 448 Mich Dissenting Opinion Cavanagh, J. imposed. the statute should be Where the defen- proves compel- dant advances substantial and ling permit reasons that the conclusion that no impose reasonable decisionmaker would the statu- departure tory permissible. minimum, imposition Where the minimum arguable, departure is imum is debatable below the min- precluded. (dissenting).

Cavanagh,

i presented The issue in the instant case is Legislature whether intended to limit types sentencing may of factors that a court con- determining sider whether "substantial compelling” departure reasons exist for a a mandatory 333.7401(4); pursuant sentence, minimum to MCL 14.15(7401)(4). examining

MSA After statutory language, considering the legislative and after Legisla-

intent, I would hold specified ture the controlled substance sen- tencing departure mandatory minimum sentence threshold is a substantial and specify any reason. The did not limita- types sentencing tions on the may of factors a court specify appropriate consider, nor it did weight given any sentencing to be traditional fac- Therefore, tors. court consider i.e., case, individual circumstances of all the surrounding factors and circumstances the of- Moreover, fender ing the offense. because sentenc- defendant, relates to this and to this sentenc- ing judge, weighing then, deñnition, of all the factors and circumstances before the sentenc- ing subjective. court must be respectfully majority

I dissent because the v Fields Dissenting Opinion Cavanagh, judicial adding

improperly discretion limitations Legislature has not intended. n pleaded guilty case, the defendant In the instant possession to 225 intent to deliver 50 with Consequently, applicable grams of cocaine.1 imprisonment "not was less than term of years.” years MCL nor more than 14.15(7401)(2)(a)(iii). 333.7401(2)(a)(iii); The MSA provides: also statute depart from the minimum term court (2)(a)(ii), imprisonment under subsection authorized (iv) (iii), on the if the court finds record to do reasons

there are substantial 14.15(7401X4). 333.7401(4); Empha- MSA so. [MCL sis added.] provision compelling” first

The "substantial and (Substitute H-2), appeared in which was SB 277 Legisla- time, PA 275. At that enacted as 1987 mandatory minimum terms of ture reduced imprisonment mini- with the idea lower readily imposed. more House mum terms would be (Substitute H-2), Legislative Analysis, Analysis, First SB 277 1987. bill also allowed December departures mandatory minimums for from these recog- compelling reasons. The substantial sentencing importance judicial nized discretion among arguments supporting emerged the bill: terms, reducing minimum and allow certain By them, bill ing would judges to law uncompromising been an moderate what has making greater flexibility give judges and would cir- individual decisions based on the MCL 333.7401; MSA 14.15(7401). Mich Dissenting Opinion Cavanagh, J. time, cumstances of a At the strong case. same major measures for controlled substance violations would be retained. Agency Analysis, Fiscal [Senate (as enrolled) (1987 275), SB 277 PA Revised Third 5, Analysis, January Emphasis 1989. added.] Legislature 143, In 1989 PA doubled the mandatory change minimum It sentences. did not compelling” the "substantial and standard. today, specifically

Until we have not addressed However, issue before us now. in People v (1990),2 435 Mich 460 NW2d 505 Schultz, four importance members of this Court underscored the judicial in discretion under this stat- though ute. Justice Archer3 noted that even mandatory increased the minimum imprisonment terms of in it retained the departure policy. He added:

Thus, legislative mandate is clear: The sen- tencing courts of this state are authorized to exer- and, cise appropriate discretion presenting cases substantial compelling circumstances, to de- part from the Public mandatory Health Code’s minimum terms. [Id. 531.] concurring opinion, Justice in her also Boyle, stated:

I have confidence that judiciary the trial of this state implements apply today’s will decision in a manner that public policy that decries the scourge drugs while reflecting, appropriate cases, equally important belief that rarest individual is wholly bereft of capacity redemption. Emphasis at 533-534. [Id. added.] 2There, the issue was whether the amendments of the controlled applied retroactively. substance statute should be 3Justice I Levin and concurred. Fields Dissenting Opinion Cavanagh, misguided history to the

I turn now "objective limitation and verifiable” of the addition compelling” stan- "substantial and to the dard. compelling” scope was "substantial

The Appeals by the Court of first addressed (1990). App Downey, 405; 454 183 Mich NW2d observing not did define that the After Downey panel compelling,” the "substantial and dictionary of those terms and to definitions looked to Washington, which of Minnesota and statutes compelling” stan- used the "substantial also dard.4 sentencing reviewing history After acceptable mitigating expressly factors statutes limited Those Minnesota facts the crime. The statute to consideration permissible departures: following provided for that the factors were "(1) aggressor .... The victim was "(2) passive played a role .... The minor or offender "(3) capacity . . . . . . substantial when The offender lacked . . . the crime was committed. "(4) grounds tend to excuse or exist which Other substantial [Downey quot- culpability

mitigate ing . . . .” at the offender’s (1988).] Sentencing II.D.2.a Minnesota Guidelines Washington similarly provided: statute The

"(a) degree, significant victim was the initiator To a "(b) detection, compensated, or made Before defendant compensate, good the victim .... faith effort to duress, "(c) the crime under coer- The committed defendant threat, cion, compulsion .... "(d) by participate . . . The was induced others defendant crime. in the "(e) impaired capacity significantly . . . The was defendant’s "(f) principally accomplished another was The offense 411-412, quoting Code Ann Wash Rev .” . . . at [Id. 9.94A.390G).] 448 Mich Dissenting Opinion Cavanagh, Downey Michigan, panel noted that properly potential the rehabilitative of the individual is an appropriate factor court con .5 Downey panel provided sider The a "nonexhaus appropriate tive” list of factors consider: (1) mitigate the facts which crime defen- (2) ., culpability prior dant’s ord, (3) . . defendant’s rec- (4) age, defendant’s defendant’s work history. [Id. 414-415.] then panel stated: should, however, We state that the term "sub compelling” implies stantial the factor capable must be of verification and thus is an opposed standard as to a subjective one. example, prior For a defendant’s criminal record is panel distinguishable general found these statutes because the sentencing guidelines Washington already in and Minnesota had taken into consideration the individual of the characteristics offender determining presumptive ranges applying expressly in limited the before mitigating compelling” reasons in the "substantial and stat- ute. Id. at 412-413. panel Downey The stated: Michigan Supreme Snow, People The Court in v 386 Mich 586, 592; (1972), following 194 NW2d 314 found the factors to proper (1) determining length be the (3) criteria in of sentences: (2) disciplining wrongdoer, protection society, of potential (4) defendant, for reformation of the deterring lature’s certain ety’s, committing Legis- others similar offenses. The imposition presumptively mandatory sentences for drug Legislature’s, offenses reflects the and thus soci- length determination that the of the sentences contained necessary offender, discipline in the statute are to protect society committing drug and to deter others from allowing excep- offenses. The amendment deviation in give judges tional circumstances reflects a desire some flexi- bility making sentencing upon decisions based individual . . For circumstances. . these reasons we believe that the fac- go determining potential tors which into the rehabilitative determining the defendant be considered when if substan- presump- tial reasons exist to deviate from the tive sentence. at 414. Citation [Id. omitted.] Fields v by Dissenting Opinion Cavanagh, hand, objective. On the other readily verifiable and his of remorse protestations a defendant’s upon are relied arrest which actions after his potential are and rehabilitative show his remorse not, would absent and thus subjective much more circumstances, appropriate exceptional other Emphasis at 415-416. to consider. factors [Id. added.][6] "objective” Downey panel infer an had to

The no direction there was such limitation because Legislature. It further illustrated drawing objective/subjective line an difficulties attempt by actions as to characterize external its subjective. I observable others think actions are they therefore, are, verifiable. arbitrary objective/subjec- an difficulties of People Krause, 185 tive line were illustrated (1990). App 353; 460 NW2d 900 Krause Mich panel adopted "objective limita- and verifiable” panel’s disagreed Downey tion, con- with the but regarding "subjectivity” of certain fac- clusion majority tors. stated: The Krause disagree Downey panel’s with the conclu- [W]e that, sion an is taken or an inci- because action arrest, dent occurs after a defendant’s such action . . fact subjective. or incident becomes . The remorse, expresses orally whether defendant writing, is an action which can be However, a intent when he confirmed. defendant’s is, expresses is within his mind and remorse own therefore, It subjective. be confirmed his cannot protesta- Consequently, his own statement. tion of remorse should not be considered as mere 6 cases, rejected panel the In review of the individual its by sentencing post- following factors had been used courts: work, college expressions and of re arrest enrollment morse, in volunteer cooperation strong family support, postarrest with the and record, prior accepted police. panel such as: of a factors lack crime, regular history. Id. at 417-420. minor in the work role 96 Mich by Dissenting Opinion Cavanagh,

balancing determining factor for substantial reasons to from the mandatory sentence. hand,

On the other a defendant’s active involve- work, ment cooperation volunteer with the police arrest, after his are events which exist persons outside the minds of the involved decid- ing the sentence can defendant’s be verified. court, ... It sentencing upon when the an evaluation all objective, of verifiable informa- tion, reaches the conclusion collective provide facts depart substantial and to reasons from the mandatory sentence that it may, discretion, in the exercise of to do decide so. at [Id. 358-359. Citation omitted.] Judge opinion wrote the majority Griffin Troncoso, Mich App NW2d (1991), which became temporarily on binding the Court of Appeals under the first-out rule of Administrative Order No. Judge 1990-6. Griffin reviewed principles construction, found that the terms "substantial and compelling” were by undefined the Legislature, looked common dictionary definitions. He concluded: light In Legislature’s these definitions and the

expressed expand discretion, intent sentencing we cannot Downey subscribe restrictions which limit the court’s consideration to prearrest capable factors verification. by terms used plainly contem plate a scope broader of relevant criteria. . . . The litmus test by Downey invented panel is a creative penal construction statute which is unsupported legislative any history and not evident from a fair reading words used Legislature. [Id. 574.][7]_ 7Judge quoted Downey Griffin nonexhaustive list of four factors and concluded: People Fields v by Opinion Cavanagh, J. Dissenting App Hill, 192 Mich 480 NW2d

In (1991), superpanel majority the resolved panels adopting Appeals by in the conflict Court doing, approach. Downey the In so the and Krause legislative upon majority quoted relied and Hill particular, analysis in 1978. In that was written against quoted argument majority an Hill the mandatory greater sen- sentences advocated quoting tencing 116-117, House Id. at discretion. Analysis, Legislative Analysis, 4190, Third HB majority May "This latter 17, 1978. stated: obviously rejected point when of view was sentencing mandatory were minimum statutes adopted.” Hill 117. 1987-88, "obvious,” in some ten is that

What clearly years reflected later, view” this "latter was 7401(4). majority not § The Hill the addition of in completely (by took statements out context accompanying ignoring 1987-88 in statements discretion), increasing judicial regarding it also time frame. on statements made another relied The recognize improperly majority that, failed to 1987-88, did reenact not giving approach majority to claimed be analysis majority’s in the to. This fatal flaw effect legislative overemphasize intent it to led stiffen the disregarding drug penalties, by completely accompanying legislative to increase intent give judicial discretion, relief adopt of factors but this nonexhaustive list We affirm verifiable, prearrest-conduct Downey’s objective, limi- reject sentencing judge not agree does tations. While we possess presumptive discretion” "unfettered mínimums, appropriate exists cases. nevertheless discretion need not hold that reasons for deviation We necessarily the articulated long they "objective” as are and "verifiable” so parameters compelling.” limited "substantial by judicial more the statute will become discretion afforded clearly through case case review. at 577.] defined our [Id. 448 Mich Dissenting Opinion Cavanagh, uncompromising from "an law.” Fiscal Senate enrolled) (as (1987 Agency Analysis, SB 277 PA 275), Analysis, January 5, Revised Third 1989. majority

The Hill further stated: Regardless original mandatory of whether sentencing subsequent minimum statutes and results, amendments have the desired we find that if judges subjec- trial can use that factors are both verifiable, tive and not depart they would have freedom to mandatory from the minimum almost any they reason to they choose use and would hold power legislative their hands the to defeat the purpose will, subject only at to review for abuse of People discretion and lack proportionality under Milbourn, (1990), 435 Mich 461 NW2d 1 the are same apply standards that sentences that not mandatory. Emphasis at 118. [Id. added.] majority exaggerated The Hill the extent of the the sentencing court’s I discretion. believe that higher pro- review portionality is standard than the Milbourn Legislature standard. The has estab- the lished standard of of discretion, review that standard is substantial and rea- just "any” sons—not reason.8 panel The Hill continued: judge threshold decision that the trial must make is compel- whether there are substantial and

ling depart reasons to from the mandatory mini- majority The Hill also stated: Legislature appears spoken to have in a manner that mandatory required indicates that minimum sentences are society scourge drugs exceptions order to rid and that mandatory to exceptional minimum sentences should be in rare and original legislative purpose cases where the would not be defeated. [Id. 118.] may disagree policy, agree IWhile with I the that this was one the goals. Legislature’s v Fields Dissenting Opinion Cavanagh, respect It to this .... with

mum sentence Legislature evi- that has decision threshold depar- limit to extreme cases its intent denced sentence. How- ture minimum ever, there court determines that once trial compelling reasons to are substantial are sentence, there statutory minimum in the factors that the trial no limits statute apply deciding how far below judge may go. the court should statutory minimum sentence Emphasis at 119. added.] [Id. speci- point. The

That is the whole types of factors fied limitations on no only specified sentencing It court consider. must court the threshold reach, circum- threshold is must substantial of the case establish stances sentencing departure. for a case Judge Hill, dissent in adhered in his Griffin, approach in his Troncoso: language of the statute nothing is There legislative history that limits the discretion or its of those sentencing judges to consideration of "objective” are sentencing factors that both are neither ex- Such restrictions "verifiable.” implied The statute re- pressed nor law. departure to be quires the articulated reasons for more, nothing noth- compelling,” "substantial ing less. rewrite the statute majority has chosen to The legislative his- preamendment Its use of at issue. majority relies

tory puzzling. appears It is Legislature’s intent upon the now-discarded mini- mandatory permitting no deviation Downey- for support there is no only because mums 1987- history Krause legislative in the amendments. judicial is majority test created The Legislature. contemplated by invention never Mich Dissenting Opinion by Cavanagh, key "objective” The terms and "verifiable” remain undefined and are therefore unworkable. We can- Legislature guidance, not look to the for because has not used these terms. problem vague of applying such is standards readily apparent Hill’s and in this case. Whether defendant family "objective” an support

substantial is sentencing "verifiable” anyone’s factor guess. [Id. 121.] Appeals Hill, After the Court of has addressed challenges numerous factual under the "substan- compelling” anything, tial and If standard. I think "objective the cases indicate that and verifia- ble” limitation is unworkable. good problem

One demonstration of the is found App in People v 203 Mich 513 NW2d Harvey, panel (1994). The Harvey stated: case, In this trial court made find- ings that defendant no prior had . . . record thirty-three years age was at the time his strong arrest. He also family support had and had steadily employed been fourteen tether at General Motors for addition, years. In he had been on a (for conviction) program less serious being about a year before sentenced for the instant been, offense and had court, in the words the trial exemplary probationer.” "an We ñnd no clear error in the trial court’s determination that there were a substantial and reasons for departure. downward Emphasis at 448-449. [Id. added.] "family support”

Notice that was one of the expressly rejected factors Downey. Hill majority intended limit court discre- by using But, terms, tion. circular it has not appellate appellate limited court discretion —if the uphold particular depar- court to wants sentence v Fields Cavanagh, Opinion Dissenting only were the factors ture, state that it need appellate court If the and verifiable. departure, it need state to vacate the wants sup- "family subjective. Is factors were that subjective? port” objective no There is it or is an arbi- with That is the flaw answer. absolute inquiry proper trary objective/subjective test. the extent of the nature be whether should this defendant’s support family’s to the level rise compelling reason, in the mind substantial and depart sentencing judge, the man- from of this datory minimum sentence.

iv majority that concludes bar, In the case compelling” should be reasons "substantial "objective test that verifiable” limited argues majority approved in Hill. The was Legislature’s' serve the will better this limitation It C.J., 69-70. states ante at intent. further Brickley, leaving interpretation of "sub- compelling” courts "be- stantial enacting legislative purpose” this stat- in lies ute. ignored majority other has Id. at 70. The greater flexibility "give judges legislative intent making sentencing indi- on the decisions based Fiscal Senate of a case.” circumstances vidual enrolled) (1987 (as Agency Analysis, PA SB 277 January 275), Analysis, 5, 1989. Third Revised majority’s by many "obser- I am troubled majority part instance, For iv. vations” surrounding mitigating circumstances states the offense should given appropriately "consid- deciding weight whether to erable the C.J., ante at minimum.” Brickley, "espe- majority circumstances finds such 76. cially compelling possibility that because 448 Mich 58 102 Opinion by Dissenting Cavanagh, J. Legislature type did not of consider this behav-

ior when it set the minimum sen- statute’s harsh added). (emphasis My Id. at 76 tences.” sponse first re- Legislature presumed

is that the is to know doing.9 Legislature it Moreover, what is if the did doing, argument not know what it be- was stronger sentencing comes even courts should sentencing finally, And, have broader I discretion. may "possibility,” do not see how a mere which may ling.” compel- "especially true, not be can ever be

I would further add that if a can factor count against by defendant, then, both deñni- ability tion, the court must have the to subjectively consider all the circumstances particular particu- surround the offender and the lar offense. example, background

For the educational of the may directly suggest po- defendant rehabilitative put instance, tential.10 an For individual who has through college try himself reveals his ambition to improve grades his Moreover, life. whatever pursuing success that the individual achieved personal an education are achievements —not sim- ply advantages comparison, By of status. an indi- who, vidual birth, accident of comes from a wealthy yet graduated status and fails to be high college, perhaps school or has revealed a lack consequently, ambition, and, of the educational 9 principle Legislature presumed "It ais well-known is existing enacting . be aware . . all statutes when new laws.” Dep’t Corrections, 240, 248; Walen v 443 Mich NW2d (1993). Schultz, People (Bkickley, supra J., See v at 543-544 dissent ing): presumed Legislature knowledge existing to act with "[T]he Therefore, presumed law.” novelty would be to know offenses, presumed of lesser-included and would be to know particular culpable, that a defendant can be less and can be convicted aof less serious crime than coactors. (rehabilitative Downey potential appropriate See is an sentencing). consideration in Fields Dissenting Opinion Cavanagh, suggest po-

background may lack of rehabilitative tential. history employment

Likewise, can reveal an this well characteristics of individual sentencing judge his cul- about better inform pability potential. his- A work and rehabilitative tory particu- who, An for no can be bad. individual job job reason, lar persistency. drifts from reveals a lack By measure, an the same consider by birth, who, in an accident of lives individual high unemployment with and low standards area living. persistently If that has tried individual unsuccessfully, job, hold if that individ- to even again try to has revealed an ambition to ual improve argue case, In I would that

his life. such a history legiti- specific the individual’s work should mately Moreover, a factor. be- be considered as history ei- work can work cause the individual’s ther for against particular then, individual, that or by sentencing definition, the the court must have ability subjectively all the circum- to consider particular surround the offender stances that particular the offense. age

Additionally, an individual’s can count both against particular individual, that for and significance consequently, subjective must fall the its within sentencing court. discretion sum, In offenders individ- because individual radically involve different circum- ual offenses totality stances, definition, circum- the sentencing by court stances must be considered determining compel- whether substantial and statutory ling exist to from the reasons minimum sentence. 7401(4), Legislature not "sub-

§In did define 448 Mich 58 Dissenting Opinion Cavanagh, compelling.” Clearly, pro- stantial and the statute vides substantial and is one more factors must be deemed to the trial court that I individual defendant. believe agreement that there could be no universal about compel- rises what level substantial and ling. It relates to this defendant and to this sen- tencing examining judge, who is this individual type offense. If this of discretion is not this Legislature say intended, what the can it and will certainly It so. could have all enumerated respective weight given factors and the each. to be Starting premise Legislature that the presumed principles is statutory be familiar with the presumed

construction,11it can be Legislature apply intended that the Court first plain meaning rule of construction. presumed Further, the can be to know give Court will also seek "to effect to legislative intent.” Gardner v Van Buren Public Schools, 445 Mich NW2d (1994) omitted). (citation plain meaning Under the rule of statutory legislative construction, the intent is Legislature said, ascertained from the what not absolutely from what it could have said.12There is no direction from the Legislature in either the language surrounding substantial and legislative history § 7401(4), inor the enactment,

its that we should limit "objective” reasons to agree majori Therefore, factors. ty’s I cannot with the Legislature’s assertion that this was the in tent. agree

I the that factors must verifiable —for simple premise reviewing the that a court must 11People Hall, (1974). v 391 Mich NW2d Singer, (5th ed), Statutory 46.01, 2A p Sutherland Construction § omitted). (citation Fields Cavanagh, Dissenting Opinion evidentiary the to review basis have an evidentiary Therefore, basis the court’s discretion. logically the individ- But how be verifiable. must weighed, by definition, must be are factors ual subjective. leap "objective” make, limita- to an I cannot Judge Downey panel I think made. tion that correctly predicted un- test is Griffin reviewing Harvey that a demonstrates workable. linguistics "objective” test can twist court support instance, is extreme result. For

a desired subjective purely demon- if the defendant remorse reviewing Again, signs it? one outward strates court can state reject subjective and remorse is reviewing state court can factor; another accept the factor. that the remorse sentencing judge is test is whether The better extent of the and the the nature satisfied compel- remorse are substantial defendant’s ling sentencing departure. support reasons ap- expressly listed have could aggravating mitigating propriate For factors. sentencing provisions comparison, can look at we legislatures. instance, a Rhode For used other provision "substantial uses the Island statute, compelling” standard, but, unlike our and expressly substan- be considered limits what quan- illegal possession compelling. For tial and tities of one kilogram of a controlled one ounce to provides: substance, the statute cases, imposing sentence justice In all such (10) years ten impose a minimum sentence shall imprisonment impose a sentence may only finds that if he or she minimum less than that exist compelling circumstances substantial sen imposition of the alternative justify which upon finding may be based Such a tence. defendant, background of character 448 Mich 58 Dissenting Opinion Cavanagh, cooperation of the defendant with law enforcement authorities, circumstances the nature and offense, quality and/or the nature and evi presented dence trial. a If which sentence is less (10) imprisonment than imposed, for years a term of ten is justice shall forth trial set on the record the circumstances he she as which or found justification imposition of for the lesser sentence. Gen Laws [RI 21-28-4.01.l.][13] Likewise, a Florida provides statute mandatory minimum greater sentences when amounts of a controlled involved; substance are offenders with lower amounts of a controlled substance are sen- according tenced sentencing guidelines.14 The statute departure provi- contains sentencing sion that is limited to govern- motions ment based on the defendant’s substantial assis- tance to law agencies: enforcement

The state attorney may move the court suspend to reduce any or the sentence of person who is of a convicted violation of this section provides and who substantial assistance 13Nearly language quantities identical used over one kilo gram. RI Gen Laws 21-28-4.01.2. instance, provides: For one section Any sells, person knowingly manufactures, purchases, who delivers, brings state, knowingly or this into or who is in actual possession grams or constructive of 28 . . or more of cocaine . kilograms

but felony less than of cocaine . . . commits a degree, felony "trafficking the first cocaine.” If the which shall be as known quantity involved: more, grams grams, a. Is 28 person or but than less such pursuant sentencing guidelines shall be sentenced to the pay $50,000. a fine of grams more, kilograms, c. Is 400 but than less such person mandatory shall be sentenced to a minimum term imprisonment years $250,000. pay of 15 calendar fine 893.135(l)(b)l.] Stat [Fla Ann People v Fields Dissenting Opinion by Cavanagh, J. identification, arrest, or conviction of any of person’s accomplices, accessories, coconspira- tors, principals or or of any person other engaged trafficking in in controlled substances. The arrest- ing agency given shall be an opportunity to be aggravation heard in mitigation or in reference to any such Upon good shown, motion. cause may motion be filed and heard camera. The judge hearing the motion may suspend reduce or if judge sentence finds that the defendant rendered such substantial assistance. Stat [Fla 893.135(4).] Ann Georgia, Alabama, Statutes in Delaware, Idaho, language, and Nevada also i.e., track this manda tory may mínimums be reduced on a motion government based on the defendant’s agenc substantial assistance to law enforcement ies.15 specific Michigan’s These statutes are is not. — argument departures should be limited to apply "substantial assistance” cases does not Michigan situation because the statute itself types

does not limit of reasons that be substantial and compelling.16_ 13A-12-232(b) 13A-12-231, (prosecutor); Ala Code Del Code tit 4753A(c) General); (Attorney 16-13-31(f)(2)(district Ga Code Ann 37-2732B(8) attorney); Idaho (prosecuting Code attorney); Nev Rev 453.3385, 453.339, 453.3395, 453.3405(2) motion). Stat (appropriate sentencing The federal statutorily scheme also defines limited judicial imposing statutory discretion in minimum sentences. See 18 3553(e): USC Upon Government, motion of the the court shall have the authority impose by sentence below a level established

statute as minimum sentence so as to reflect a defendant’s investigation substantial another prosecution assistance in the person .... Lowenthal, Mandatory See also Undermining laws: sentencing reform, (1993) effectiveness of determinate 81 Cal L R 61 (for summary sentencing procedure). of the federal This commentator explained departure grounds: 448 Mich Dissenting Opinion Cavanagh, example pro- Another is a Kansas statute that presumptive sentencing grid drug- vides a specific. specifically aggra- lists crime The statute vating drug "may consid- factors crimes that determining com- ered pelling whether substantial and departure . . . .” Kan reasons for exist (as Stat Ann 21-4717 amended 1994 Kan Sess 3).17 non-drug-specific provision 341, § A Laws principal grounds departure applicable guide- 5K1.1, ranges lines are set forth in §§ [Guidelines Manual] provisions permits first the court to 5K2.0. The of these government stating guidelines by from the the tigation provision permits exists an to a Sentencing should result at on motion that provided in the inves- defendant has substantial assistance prosecution person. or another . . . The second of " departure if the court finds 'that there kind, aggravating mitigating or circumstance of a or degree, adequately not taken into consideration formulating guidelines Commission in ” a sentence different from that described.’ [Id. 89, 127, Manual, quoting quoting n Guidelines 18 USC 3553(b)-Citations omitted.] provides: statute The factors, following aggravating apply drug The which 1, 1993, July crimes committed on or after under the sentenc- ing guidelines system, may whether determining be considered in departure reasons for substantial exist: (1) part major organized The crime was committed as manufacture, of a drug production, delivery activity. or cultivation following Two or more of the evidence cultivation or nonexclusive factors constitute manufacture, major organized production, drug of delivery activity: (A) money The offender derived a substantial amount of or ownership illegal drug activity. asset from the sale (B) presence quantity variety The of a substantial or of weapons explosives or at the scene of arrest or associated with illegal drug activity. (C) presence drug The or of transaction records customer drug major activity that indicate a sale of size. lists (D) presence manufacturing or distribution materials to, chemicals, as, drug recipes, precursor such laboratory power-generation, but not limited ventilation, equipment, lighting, irrigation systems, packaging scales or material. (E) Building building including acquisitions or modifications painting, wiring, plumbing lighting but not limited to or which of the offense. advanced or facilitated the commission (F) large illegal drugs Possession of amounts of or substantial quantities of controlled substances. People y Fields Dissenting Opinion by Cavanagh, provides the Kansas statute a "nonexclusive list of mitigating may [that] factors be considered in determining whether substantial and departure reasons for a 21-4716 Ann . exist . . Kan Stat (as amended Kan Sess Laws 2).18 § Michigan Legislature sum, In has not ex- provided pressly any types limitations on the weight given factors to considered, or the to be particular any factor in the statute at issue in the 7401(4) simply provides instant case. Section if the court finds substantial and com- pelling reasons to term, minimum it do so. majority point misses the when it reviews

other schemes to reinforce its "belief” Michigan Legislature corresponding that the had a Michigan Legislature intent. If the had wanted to (G) showing A engaged repeated offender has manufacture, criminal acts cultivation or production, associated with the delivery of controlled substances. (2) possessed illegal drugs: The offender (A) sell, With intent which were sold or were offered for person years age; sale to a under 18 (B) sell, with the intent to deliver or distribute or which were sold presence or offered for person sale in the immediate of a years age. under 18 (3) offender, years age, hires, The employs, 18 or more of uses, persuades, induces, any entices or coerces individual years age under 16 or avoiding of to violate or assist in detection apprehension provision any for violation of of the uniform of whether the K.S.A., regardless controlled substances act .. . age offender knew years age. of the individual under 16 18The list includes: aggressor participant The victim was an or .... played passive The offender a minor or role in the crime .... The capacity offender . . . lacked substantial . . . [and] degree The significantly of harm . . . typical was less than (as

for such an offense. Stat Ann 21-4716 [Kan amended 341, 2).] 1994 Kan Sess Laws § 448 Mich Dissenting Opinion Cavanagh, sentencing factors, enumerated court to limit the Michigan certainly have done so. it could Legislature not Because the chose to. improp- majority to, is I that the

chose not erly believe sentencing limiting scope judicial dis- cretion.

VI defendant, no case, who had In the instant guilty prior pleaded convictions, one count of possession than 50 but to deliver more with intent grams statute, cocaine. Under than 225 less twenty years. mandatory was ten to the The sentence sentencing judge substantial and com- found mandatory pelling reasons imposed. twenty-year sen- a five- sentence explained: judge tence. satisfied, Well, is and the right. All the Court pre- that I have read record should reflect your came on report, the letters that sentence memos, behalf, I am both time, is applicable, at this that the law satisfied Troncoso, App 187 Mich decided statutory 1991. Troncoso indicates that absent definition, controlling we judicial definition con- legislative directive to comply must with language according to the common strue and approved usage of the words. here there are some factors

I’m satisfied that to the conclu- allow this Court to come that would there is substantial there are some —that sion and from the manda- compelling reason to deviate However, agree I would tory 10-year sentence. problem, regarding this with Prosecutor cocaine, absolutely problem is a terrible and, over. It’s a cancer just start —not —I’ll know, drugs that were the amount of you with ap- here, would be clearly incarceration involved propriate. People v Fields Dissenting Opinion by Cavanagh, I’m satisfied that the basis for my deviating from the mandatory 10-year you’re young is that a years man of 24 age you prior have no record. I’m also standing alone obviously satisfied — wouldn’t gram you matter but just were over the 50 mark, grams. the 54 be, appears This upon record, based your only involvement that can be established. good You had job a for over years five with a record, good work taking and I’m into considera- tion the extreme remorse I you. see from You are devastated this. You’ve your guilt, admitted you’ve accepted your responsibility. got You’ve family co-workers, friends and as letters, evidenced you indicate do—are a person capable of rehabilitation. I think you have potential rehabilitation, for and I’m satisfied your help others, motivation to although totally in respects outbalanced, some it least cold, indicates that you’re not a drug callous profit dealer out to solely your for own benefit. Taking consideration, all these into I’m satisfied deviation, there will be a but there has to be significant penalty for someone who sells in grams excess of 50 of cocaine for approximately $2,300 at street value. Therefore, taking all those factors into consider- ation, it will be sentence judgment of this Court you be confined to jurisdiction [that] the Michigan Department of Corrections for a minimum term of 20 years of five and a maximum term years .... The Court of Appeals reversed and remanded resentencing because the sentencing court relied on factors that were improper under Hill.19

I find that the sentencing court thoroughly ex- amined positive both and negative circumstances of the case before it. I see no abuse of discretion 19Unpublished opinion Appeals, memorandum of the Court of (Docket 147473). February issued No. 448 Mich 58 Opinion Dissenting Cavanagh, J. that substantial its determination sentencing departure existed. for a reasons

VII provided conclusion, In sentencing de- substance threshold for controlled partures: This reasons. substantial and evidentiary record is not unlimited discretion. reviewing court that to demonstrate to a will have I such a record exists reasons exist. find that such in Therefore, I reverse the would the case bar. Appeals the trial and reinstate Court of decision sentencing departure sentence, court’s because compelling reasons. on substantial and was based Levin, J., Cavanagh, concurred with part J., of this took no the decision Weaver, case.

Case Details

Case Name: People v. Fields

Court Name: Michigan Supreme Court

Date Published: Mar 7, 1995

Citation: 528 N.W.2d 176

Docket Number: 97269, (Calendar No. 13)

Court Abbreviation: Mich.