People v. Krause, Docket Nos. 117728
| Decision Date | 25 September 1990 |
| Docket Number | 117729,Docket Nos. 117728 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kherrel KRAUSE, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William Michael NEWTON, Defendant-Appellee. 185 Mich.App. 353, 460 N.W.2d 900 |
| Court | Court of Appeal of Michigan — District of US |
[185 MICHAPP 355] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., and George E. Ward, Chief Asst. Pros., for the People.
Ina G. Zeemering, Detroit, for Kherrel Krause.
Robert M. Morgan, Detroit, for William Newton.
Before GRIFFIN, P.J., and REILLY and BURNS, * JJ.
This is an appeal by the prosecutor of the sentences imposed on defendants after they pled guilty to possession with intent to deliver at least 225 grams but less than 650 grams of a mixture containing cocaine. M.C.L. Sec. 333.7401(2)(a)(ii), M.S.A. Sec. 14.15(7401)(2)(a)(ii). Pursuant to M.C.L. Sec. 333.7401(4); M.S.A. Sec. 14.15(7401)(4) of the amended statute, the sentencing court departed from the ten-year statutory minimum sentence prescribed by Sec. 7401(2)(a)(ii), and entered a sentence of five to thirty years of imprisonment for each defendant.
First, the prosecutor claims that under the amended M.C.L. Sec. 770.12(1); M.S.A. Sec. 28.1109(1), the state may appeal a sentence as of right. This issue was decided in People v. Reynolds, 181 Mich.App. 185, 188, 448 N.W.2d 774 (1989), where this Court determined that the amended statute authorized the prosecutor to take an appeal as of right from a defendant's sentence. Thus, an appeal as of right is available to the prosecutor in this case.
Next, the prosecutor claims that the sentencing court did not state substantial and compelling [185 MICHAPP 356] reasons to depart from the statutory minimum sentence.
At the time applicable herein, M.C.L. Sec. 333.7401(2)(a)(ii); M.S.A. Sec. 14.15(7401)(2)(a)(ii) provided:
A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) and:
* * * * * *
(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that controlled substance is guilty of a felony and shall be imprisoned for not less than 10 years nor more than 30 years. [Emphasis added.]
M.C.L. Sec. 333.7401(4); M.S.A. Sec. 14.15(7401)(4) provides:
The court may depart from the minimum term of imprisonment authorized under subsection (2)(a)(ii), (iii), or (iv) if the court finds on the record that there are substantial and compelling reasons to do so. [Emphasis added.]
The reasons provided by the court in support of its departure from the statutory minimum for the instant defendants include the following: they had histories of family problems which appeared to have been resolved; the amount of the mixture containing cocaine was approximately 237 grams, which is just over the minimum of 225 grams for this offense; there was a lack of criminal history; they had a work history; and they were middlemen in the situation. In addition, as to defendant Krause, the court stated he had "worked with the police on former problems." The prosecutor contends that these reasons are not "substantial and compelling."
The trial court's discretion to depart from the [185 MICHAPP 357] statutorily mandated minimum sentences under Sec. 7401 is very limited. In the recent decision ofPeople v. Downey, 183 Mich.App. 405, 416, 454 N.W.2d 235 (1990), a panel of this Court stated:
We conclude that the Legislature intended to give trial courts discretion to depart from the presumptively mandatory sentences only in exceptional cases. The scope of a sentencing court's discretion is thus narrow, the factors used in departing must be objective and must be of such significance that the statutory sentence is clearly inappropriate to the offender. The trial court must keep in mind that the Legislature has declared that the mandatory minimum sentence is an appropriate sentence. The trial court must begin its analysis from that perspective. We review the trial court's decision to impose an exceptional sentence for an abuse of the narrowly defined discretion which it possesses.
The issue of what constitutes substantial and compelling reasons was thoroughly addressed in Downey. After consideration of the statutory language, the Downey Court reviewed the presumptive sentencing statutes and guidelines from Washington and Minnesota and indicated that each of the factors adopted by those courts as substantial and compelling reasons to depart from those states' presumptive sentencing guideline ranges should be considered substantial and compelling reasons to depart from the mandatory sentence prescribed in Sec. 7401 to the extent they can apply to the offense and the offender. However, the Downey Court declined to limit the applicable considerations in departing from the mandatory sentences to the factors on these lists. Id., p.p. 412-413, 454 N.W.2d 235.
The Downey Court determined that the Legislature has required the sentencing judge to exercise [185 MICHAPP 358] his discretion with the presumption that the mandatory minimum sentence is the place to begin and that the sentence is appropriate and must remain there unless there are substantial and compelling reasons to depart. Id., p. 413, 454 N.W.2d 235. We agree with Downey that the bases for determining departure must be objective and verifiable. Id., p.p. 414, 415, 454 N.W.2d 235. This means that the facts to be considered by the judge in determining substantial and compelling reasons must be actions or occurrences which are external to the minds of the judge, defendant and others involved in making the decision and must be capable of being confirmed. However, we disagree with the Downey panel's conclusion that, because an action is taken or an incident occurs after a defendant's arrest, such action or incident becomes subjective. See id., p.p. 415-416, 454 N.W.2d 235. The fact that a defendant expresses remorse, whether orally or in writing, is an objective action which can be confirmed. However, a defendant's intent when he expresses remorse is within his own mind and is, therefore, subjective. It cannot be confirmed by his own statement. Consequently, his mere protestation of remorse should not be considered as a balancing factor for determining substantial and compelling reasons to depart from the mandatory sentence.
On the other hand, a defendant's active involvement in volunteer work, or cooperation with the police after his arrest, are events which exist outside the minds of the persons involved in deciding the defendant's sentence and can be verified. Although a defendant's intent in engaging in these postarrest activities may very well be self-serving, such intent does not make the acts subjective in nature. We believe these activities, being objective and verifiable, may be considered by the judge in measuring a defendant's punishment. However, [185 MICHAPP 359] such consideration should be tempered by an awareness that postarrest actions by the defendant are often undertaken for the primary purpose of influencing the sentencing judge. It is only when the sentencing court, upon an evaluation of all the objective, verifiable information, reaches the conclusion that the collective facts provide substantial and compelling reasons to depart from the mandatory sentence that it may, in the exercise of discretion, decide to do so.
In the present case, as to defendant Krause, the court stated that he had "worked with the police on former problems." A defendant's cooperation with the police may, in some circumstances, be so "substantial and compelling" as to warrant a sentence below the statutory minimum. However, in this case the extent of defendant Krause's cooperation is not clear from the record. The extent of his cooperation must be objective and verifiable, as well as significant enough, when taken with other objective and verifiable factors, to be considered substantial and compelling in order to overcome the presumptive statutory minimum.
As to both defendants, the court stated that they were "middlemen." It is unclear why the sentencing court determined that this was a factor to be considered. Being a middleman would not be a "minor or passive" role in relation to the crime for which they were convicted. See id., p. 411, 454 N.W.2d 235. While defendants' work histories prior to their arrests and their lack of criminal histories are factors which can be considered, id., p. 415, 454 N.W.2d 235, it is doubtful these would attain the level of being substantial and compelling factors, standing alone. Further, the possible resolution of family problems and the fact that the amount of cocaine possessed was just over the minimum for the offense for which they were convicted are factors of little or no weight.
[185 MICHAPP 360] Because the sentencing court relied on factors which were not substantial and compelling in sentencing defendants, their sentences are vacated. We remand their cases for resentencing and instruct the trial court that, in doing so, it must begin with the mandatory sentences and require defendants to demonstrate objective and verifiable reasons to justify departure. Only if these are "exceptional" cases should defendants receive sentences less than the statutorily mandated minimum. Id.
Reversed and remanded for resentencing consistent with this opinion and in light of Downey. We do not retain jurisdiction.
The people appeal sentences imposed upon the defendants of five to thirty years imprisonment for possession with intent to deliver at least 225 grams but less than 650 grams of a mixture containing cocaine. M.C.L. Sec. 333.7401(2)(a)(ii); M.S.A. Sec. 14.15(7401)(2)(a)(ii)....
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