People v. Troncoso

v Troncoso PEOPLE v TRONCOSO 10, 1990, Docket No. 115976.Submitted December at Detroit. Decided 4, 1991, denied, appeal March at 9:05 a.m. Leave to 437 Mich —. pleaded guilty City José Troncoso in the Recorder’s Court for the possession grams Detroit of with intent to deliver 50 to 225 twenty years’ imprison- of cocaine and was sentenced to two to ment, prosecutor appealed, alleg- Dominick R. Carnovale. The ing that the court failed to articulate on the record substantial justify departure pre- reasons to from the sumptive five-year minimum sentence for the offense. Appeals The Court of held: sentencing court did not abuse its discretion in defendant. sentencing judge possess 1. A does unfettered discretion depart minimums, however, presumptive from the discretion exists in cases. The articulated reasons for devia- necessarily objective long tion need not and verifiable so they compelling. are substantial and 2. Substantial and reasons were articulated on departure justify record to from the mini- mum term. These included the defendant’s minimal or nonexis- record, very steady record, tent criminal work substantial family support, law-abiding and motivation and desire to live a proportionate life in the future. The sentence is to the serious- surrounding ness the circumstances the offense and to the offender. Affirmed.

McDonald, P.J., dissenting, stated that substantial and com- pelling reasons for minimum sen- tences should be confined to those that are Although verifiable. court’s consideration of ac- occurring or incidents after a defendant’s arrest should _tions References 2d, 598, 599; Narcotics, Drugs, Am Jur Criminal Law §§ and Poi- sons 48.§ Drugs Narcotics; Mitiga- See the Index to Annotations under Aggravation tion or of Punishment. App 567 Opinion of the Court precluded, occurrences must be external such actions or not be defendant, judge, and others involved to the minds depar- making proper factors for to be considered the decision depar- Although given by the trial court for ture. the factors objective, subjective and none consti- ture in this case are both compelling justify to reduction of reasons tute substantial and re- The case should be minimum sentence. resentencing. manded for Departure Presumptive — — from Sentences Sentences Minimum Statutory Minimum. sentencing may depart presumptive minimum A court from cases; for the the articulated reasons sentences in necessarily and verifiable so deviation need not compelling. long they substantial and are Secor General, Gay Frank J. Kelley, Attorney OHair, D. General, Hardy, Solicitor John Prose- Ward, George E. and Assis- cuting Attorney, Chief Prosecutor, people. tant for the H. Magidson, Mark for the defendant. Kelly McDonald, P.J., Michael J.

Before: and Griffin, JJ. Griffin, of two people appeal1 J. The a sentence the defendant for a years imposed upon to twenty to possession conviction of with intent plea-based cocaine, grams deliver 50 to 225 MCL 14.15(7401)(2)(a)(iii). 333.7401(2)(a)(iii); MSA Judge that Recorder’s Court prosecutor argues on the Dominick R. Carnovale failed to articulate reasons” to record "substantial presumptive five-year from the justify minimum disagree for the offense. We sentence and affirm.

i 1987-88, Legislature sought moderate 1Although appeal, defendant filed a cross he has not filed a brief. Accordingly, appeal to be abandoned. we deem cross People v Tkoncoso Opinion op the Court our previously rigid and uncompromising by granting sentencing laws judges discretion to depart certain minimum terms if the sentencing courts find on the record "there are substantial do so.” The Senate Analysis package the bill indicates the Legislature intended to give sentenc- ing "greater judges flexibility making sentenc- ing decisions based on the individual circum- stances of a case”: Also, allowing judges depart from the terms,

minimum reducing the minimum for larger quantities, the bill would moderate what uncompromising has been an give law and would judges greater flexibility making decisions based on the individual circumstances of 598, 600, 603, a case. Agency, Fiscal SB [Senate August 610: Third Analysis, 1988.] legislative Further history2 be found in 68 may (1989) BMich J 1179 "Opinion in the form of an Cahill, and Dissent” letter written by Legal David Counsel the House Judiciary Committee. Therein, emergence Cahill tracks the of the words compelling” "substantial and in the statute and phrase states that the intentionally was undefined "so the trial bench would have the tools available to do in justice individual circum- stances”:

To the Editor:

George Ward’s article in the October Bar Jour- recognize postenactment legislative We that such statements of questionable generally Presque are intent Isle of value. Bd of of See Ed Twp Ed, Presque School Dist No 8 Isle Co ofBd 364 Mich (1961). Nevertheless, NW2d we include the Cahill letter accurately concisely we because are convinced that it rebuts the legislative Ward, history Drug in misstatements of contained Sen Reining Knight-Errantry, tences: in Mich B 976 J App 567 Opinion of the Reining Knight- in "Drug Sentences: nal entitled legisla- report the Errantry” inaccurate on (1987 public PA 275 history the two acts tive and 1988 certain 47) judge impose PA a not allow the if mandatory minimum sentences compel- there "substantial and

judge finds that are ling to do so.” Diamond, People v The case of (1985)], lv den 424 Mich 894 787 (1986), [376 Legislature the by when was not considered Furthermore', Mich- public were drafted. these acts sentencing” igan a "presumptive does have not Therefore, system. any "substan- use words term art such a compelling” tial as a elsewhere, system, in Minnesota or is irrelevant interpretation Michigan statutes which are the Finally, list part system. lengthy of such a the not of Mr. believes factors which Ward rea- should sons” was never Michigan Legislature. be "substantial the presented to or considered Instead, rea- the "substantial language originated with a bill sons” about seat belts. legislative 1987-88 session House bill 4343 required language which would have

contained fine for judge impose a certain minimum a seat finding on judge belt violation unless the "makes that, writing the circum- the record or under surrounding infraction, imposition stances any or of of the full amount of the fine and costs unjust.” HB 4343 did not fine and costs would be law, idea it into but of a make minimum, "departure” coupled with so that judge injustice, had could avoid an individual been legislators. plánted in minds of several Speaker the summer of In Majority Leader directed House and the Senate Representative Perry Bullard Senator Jack and legis- prepare package a anti-crime Welborn judges had told these prosecutors lation. Some legislators and sentencing system in drug that time, totally inflexible "man- effect at its v Troncoso Opinion the Court scheme, the resolution delayed minimum” datory unjust produced occasionally and many cases agreed to Therefore, legislators two these results. compelling reasons” and the "substantial propose the trial so that mechanism departure downward justice do the tools available have would bench circumstances. in individual phrase itself compelling” The "substantial on of bills a series from was taken law. did not become also guidelines which creating the question, in public acts The two in compelling” "substantial Bullard Representative cases, law then became proposed. had Welborn and Senator "compelling” are nor "substantial” As neither meanings. ordinary defined, have their the words Judiciary Cahill, House Legal Counsel David /s/ Committee (1989).] B 1179 Mich J

[68

II panel history, Despite Court of this such People Downey, 405; 454 NW2d (1990), severely the discretion restricted 235 sentencing judges

to deviate by Obviously Chief Assis- influenced minimums. Drug Sentences: article Ward’s tant Prosecutor Knight-Errantry, Reining Mich B J (1989), and hurdles created standards Court this Legisla- contemplated by never were which ture. Downey particular, invented an dichotomy lit- "objective/subjective” to serve as prove particular will reason of whether mus test compelling.” cre- The test "substantial to be Downey panel is as follows: ated however, the term "sub- should, state We the factor implies compelling” stantial App 187 Mich Opinion op the Court capable must be veriñcation thus an opposed subjective standard to a one. Emphasis at 415. [Id. added.] Additionally, Downey established line de- prearrest marcation between and postarrest con- duct: protestations defendant’s of remorse and his [A] actions upon after his arrest which are relied potential show his remorse rehabilitative are not, much more and thus would absent circumstances, exceptional other

factors to consider. at [Id. 415-416.] Krause, Later in v People 185 Mich App 358; (1990), 460 NW2d 900 this Court rejected Downey’s prearrest-conduct limitation: disagree the Downey panel’s with conclu- [W]e that,

sion because action is or taken an inci- arrest, dent occurs after a defendant’s such action or subjective. incident becomes Krause, majority however, affirmed the test, remainder the Downey including its re- quirements the "substantial and compelling” reasons be "objective and verifiable.” see Also Clark, People v 185 Mich 127; 460 App NW2d 246 (1990), Pearson, v People 773; Mich App (1990). 462 NW2d 839

Finally, cognizant we are of a footnote in the dissenting opinion Schultz, People 517, 546, (1990), n 460 NW2d in which Brickley Justice cites Downey approval.

hi The primary goal of judicial construction Troncoso Opinion of the Court to the intent give effect is to ascertain statutes Hawkins, People v Legislature. The role of 393, 396; 448 NW2d as intended by statutes is to construe judiciary Co Lapeer them. not to rewrite Legislature, Harris, App 182 Mich of Social Services Dep’t (1990). statutory 686, 689; Absent 453 NW2d definition, we controlling judicial or definition to con- legislative directive with the comply must to the "com- language according statutory strue 8.3a; MCL usage” of the words. approved mon and Prosecuting Co Wayne ex rel State 2.212(1);3 MSA 455, 465; 280 Levenburg, 406 Mich Attorney v Area Public Schools v Fenton (1979); Co, 631, 639; Const App Sorensen-Gross so, doing resort to dictio- 335 NW2d Id. appropriate. definitions nary is defined Webster’s term "substantial” Unabridged Dictionary, International Third New (1981) as Edition . . . not illusive seeming imaginary: or . . . considerable important, essential of moment: value, amount, soundly . . . based: or worth

carrying weight. Dictionary House The Random Similarly, (1987) de- Edition Unabridged English Language: fines "substantial” amount, . . . quantity ample or considerable worth, essential; ... of real fundamental

basic or 2.212(1) 8.3a; provides: MSA MCL phrases understood shall be construed and All words and usage language; approved according common and to the may phrases, have ac- and such as technical words and but law, meaning shall be quired peculiar in the appro- according peculiar and to such understood construed and meaning. priate Opinion of the Court value, essential, material, . or . . impor- effect or tant. House, to Random

According the term "compel- ling” "overpowering having means . . . a powerful and irresistible the point is Web- effect.” More to Third, ster’s which defines "compelling” as urge to irresistibly by pressure moral or social . . . to con by personal temperament force or other subjective siderations[4] ... or force cause irresisti bly ... to exert an [Empha irresistible influence. sis added.]

In light of these the Legislature’s definitions and expressed discretion, intent to expand sentencing Downey we cannot subscribe restrictions limit court’s consideration capable prearrest factors of objective verification. The by terms used the Legislature plainly contem- plate a scope broader of relevant criteria. The prosecutor’s argument that "substantial and com- pelling” reasons should be limited to a defendant’s and verifiable prearrest conduct is a public policy argument which is more appropri- ately Legislature. addressed to the This is particu- larly regard true penal to statutes which are Hall, People to strictly construed. (1974). 189-190; 215 NW2d 166 The litmus test

invented Downey panel the is by a creative con- struction of penal a statute is unsupported by any legislative history and not evident a reading fair of the words used the by Legislature. We note Downey test reminiscent of the discarded no-fault tort automobile threshold 4 Downey ignored The Court either overlooked or this section of the definition which is included in both the 1966 editions Dictionary, Unabridged Webster’s Third New International Edition. Downey, supra See at 410. v Troncoso Opinion op the Court injury manifested” "objectively an standard 483; McGovern, 415 Mich by Cassidy created (1982), DiFranco v by and eliminated In its Pickard, 398 NW2d held for Court opinion, Supreme former "serious the tort threshold of exceed injury function,” for necessary it was impairment body manifested.” the injury "objectively to be our Court mean by construed requirement was subject must be to "medical injuries threshold 131 Mich App v Payne, Williams measurement.” (1984). Recovery was 403, 409-410; 346 NW2d Mere injuries. for such "verifiable” allowed only unsupported by "objective” complaints insufficient. findings were deemed promulgation, their Shortly judicial after "verifiable,” measure- and "medical "objective,” progeny its were Cassidy ment” standards Court as "almost insur- by Supreme discarded Legisla- intended mountable obstacle[s]” DiFranco, 66. supra at ture.

IV case, Judge Recorder’s instant on the record Dominick R. Carnovale articulated together taken of factors which when number and com- to constitute substantial were deemed These factors in- departure. pelling reason (1) or nonexistent minimal cluded: defendant’s (2) work his- record, very steady defendant’s (3) family support, substantial defendant’s tory, (4) live motivation and desire defendant’s in future: law-abiding life circumstances the facts and I do believe substantial give do rise to sufficient here discre- allow me to exercise compelling reasons to 187 Mich Opinion lowering tion in somewhat mini- legislature mum that the provided. has citizen; You still are a Cuban I recognize that. really contacts, You’ve question had no taking that Florida question You’re, as mark. age at here, you’ve and since staying been your with fiancee. You’ve had no contacts in the State of Michigan. And while in and of itself of course would not it compelling reason, substantial and ais consideration I can take —it is a fact I that whether or not stantial and can into take consideration determining picture the whole indicates sub- compelling reasons. very You do have a steady work record. You do high regard have indicated that of your employees. They’ve I letters which have before me morning. here this you And have demonstrated on all aspects other willingness a desire and a to live life, abiding been, a law and have as far as canwe tell, abiding up a law citizen to this offense here. You living your have been fiancee and supporting a family past for the several years. you’ve That is good been noted as a father. a— You’ve you’ve family think which would which would very been noted as a hard worker. And been very your noted reliable with your employment. and with And I those are substantial test, my subjective allow me to— me to

allow reduce the sentence. It very community. is a serious putting poison offense. It is into the substantial me to reduce I do believe that there are reasons which allow your particular penalty this situa- tion, at on maximum least the minimum end. The end of remain. legislature course set and must you It’s sentence of this Court serve from twenty years two to in the State Prison for South- Michigan, place Department ern or other such may designate. Corrections If disregards one Downey’s "objective/subjec- People v Troncoso Opinion of the Court this combination of factors would dichotomy, tive” compelling” deemed to be "substantial and be under our former decision: go that into deter- believe the factors which [W]e potential

mining the rehabilitative of the defen- determining if may dant stantial and from the be considered when sub- reasons exist deviate presumptive sentence. agree prosecutor race and

We with the not which should economic status are considered. NW2d factors be Coles, People v 417 Mich (1983). A nonexhaustive list of factors 7401(4) under may be considered subsection (1) mitigate the facts of the crime which are: defendant’s listed (2) (see culpability example the factors statutes), Washington’s in Minnesota’s and (3) record, age, defendant’s defendant’s (4) supra history. [Downey, defendant’s work and at 414-415.] affirm this nonexhaustive list of adopt

We verifiable, reject Downey’s objective, factors but agree limitations. While we prearrest-conduct "unfet- sentencing judge possess does depart tered discretion” mínimums, exists in appro- discretion nevertheless hold that the articulated priate cases. We need not necessarily "objective” for deviation long so are "substantial they and "verifiable” limited compelling.” parameters of the afforded the statute will by discretion judicial clearly through more defined our case become case review. recognized sentencing is not a long

We have Coles, courts. appellate function of the 523, 536-538; 339 Opinion of the Court Rather, sentencing exclusively rests within the who, having after province judge defendant, is posi- seen heard the uniquely tioned evaluate the defendant’s credibility, char- acter, and potential. rehabilitation Id. A "subjec- tive” evaluation of such often necessary traits sentencing. for effective In regard, this we have recognized firmly concept punishment

the entrenched left to the trial court’s discretion. Such discretion is intricately principles intertwined with the un- derlying in individualizing case the of sentences embodied Howell, Michigan [People law. v 232; (1988).] matters, In sentencing we not should substitute judgment our for of the sentencing judge Milbourn, People absent abuse of discretion. (1990).5 461 NW2d 1 We recognize 5 Milbourn, Supreme the the affirmed abuse-of-discretion test, however, changed principle of standard review. The was from "shocks the appellate proportionali of conscience court” to "the ty.” Although the Court criticized and discarded the shocks-the-con complete subjectivity” science test as rule "one and therefore no all, recognized at subjectivity it also that a measure of is sentencing: unavoidable for individualized subjectivity judicial While a measure of decisions is un- differing personal backgrounds, experi- avoidable due to the ences, viewpoints bench, of different members complete subjectivity”

standard which is itself "one of has no place appellate more on the bench than in trial court. A judges apply rule which contains no directives to the who must encourage rendering it—other than to of decisions in accor- personal judgments only dance value a "rule” in the —is [Milbourn, supra weakest sense. at 645.] Further, principle proportion- Court did characterize "the ality” former rule: objective, completely subjective test as but rather less than the [T|he proportionality preferable standard is because it is far inquiry.

less 636.] than the "shock the conscience” at [Id. People v Troncoso by McDonald, P. Dissent J. "[sentencing] process entails the need factfinding a certain amount of which is best dis- charged by supra Coles, the trial court.” "[a]ppellate Further, at 537. not estab- courts were factfinding engage any significant lished to they functions, and, were defen- to resentence a necessary, dant, such a function would become lest they only picture have a skeletal from which to propriety given determine the of a sentence.” Id. We find no abuse of discretion in the instant case. Substantial articulated on the record to reasons were

justify Further, from the minimum term. twenty years proportion- the sentence of two to ate to the seriousness of the sur- circumstances rounding the offense the offender.

Affirmed. J., J. Kelly,

Michael concurred. (dissenting). respectfully McDonald, I P.J. dis- resentencing. sent and would remand for agree majority, Unlike the I with this Court’s opinion App Krause, 353; v (1990), 460 NW2d 900 and believe substantial and compelling departure mandatory reasons for from minimum sentences should be confined to those objective Although that are and verifiable. I would go preclude so far as to court’s occurring consideration of actions or incidents af- People Downey, arrest, contra, ter a defendant’s App (1990), 405; Mich 454 NW2d 235 I do agree such actions or occurrences must be external judge, defendant, to the minds of the and others making involved in proper the decision to be considered departure. factors for Downey, As indicated in the trial court must begin analysis perspective its from the 187 Mich by McDonald, P.J. Dissent

Legislature mandatory minimum has declared the any Thus, sentence departure be an sentence. supported by therefrom must be clearly why inappro- show the sentence is priate for the defendant. subjective incapable factors,

If we allow of inde- pendent verification, to be considered sufficient departure, appellate reasons for again courts will once ambiguous be left with an standard of sen- tence review reminiscent of the "shock the con- recently standard, scious” preme abandoned our Su- People Milbourn, Court in Mich 461 NW2d 1

Although given by in the instant casé the factors departure the trial court for are both objective, none constitute substantial and com- pelling justify reasons to reduction of the manda- tory minimum sentence.

The trial court cites defendant’s lack of a objective justifying depar- record as the first factor Legislature ture. If the intended a first offender to exempt minimum sen- exception easily tence, such an could have been recognized stated. Even the trial court that such a factor "in and of itself of course could not be a depart. substantial and reason” to "very trial court next cites defendant’s steady Although work record.” another factor, I do not it believe constitutes a reason for a downward tory from the manda- persons agree minimum sentence. Most would Legislature one of the main reasons the enacted mandatory sentencing convictions is to law-abiding deter otherwise citizens from tempted supplement by engaging their incomes employed person Thus, in illicit sales. type record, defendant, with no such as is the Troncoso by McDonald, Dissent P.J. person Legislature discourage intended to participating drug trafficking. Finally, as additional reasons for the reduced sentence, the trial court cites defendant’s substan- family support tial and his motivation and desire law-abiding to live a life. These factors fall far short of substantial and ignore mandatory reasons to minimum sentence. family support Defendant’s substantial is a credit family, Additionally, to his the defendant. expressed law-abiding defendant’s desire to live a subject life is a common of allocution. Few defen- ways dants fail to confess the error of their promise leniency better if conduct shown at sen- tencing. Most men and women of the cloth would judge’s average marvel at a trial conversion rate. Although person’s law-abiding desire to lead a goal justice system, life is a of our criminal such a factor should not be considered» a substantial and indepen- reason for where nearly impossi- dent verification at resentencing. ble. I would remand for

Case Details

Case Name: People v. Troncoso

Court Name: Michigan Court of Appeals

Date Published: Mar 4, 1991

Citation: 468 N.W.2d 287

Docket Number: Docket 115976

Court Abbreviation: Mich. Ct. App.