People v. Hill

• Decision Date: 22 November 1991
• Docket Number: Docket No. 139790
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Windall Davenshire HILL, Defendant-Appellee. 192 Mich.App. 102, 480 N.W.2d 913
• Court: Court of Appeal of Michigan — District of US

Page 913

480 N.W.2d 913

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Windall Davenshire HILL, Defendant-Appellee.

Docket No. 139790.

192 Mich.App. 102, 480 N.W.2d 913

Court of Appeals of Michigan.

Submitted Sept. 24, 1991, at Lansing.

Decided Nov. 22, 1991, at 9:00 a.m.

Released for Publication March 10, 1992.

[192 MICHAPP 103] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Robert C. Williams, Asst. Pros. Atty., for the People.

Kevin M. Check, Southfield, for defendant-appellee.

[192 MICHAPP 104] John D. O'Hair, Pros. Atty., and George E. Ward, Chief Asst. Prosecutor, Detroit, amicus curiae for the Wayne County Prosecutor.

Sherrie P. Guess, Detroit and Laura K. Vickers, Troy, amicus curiae for Criminal Defense Attys. of Michigan.

Before DANHOF, C.J., and MICHAEL J. KELLY, HOOD, GRIBBS, SHEPHERD, SAWYER, WEAVER, McDONALD, DOCTOROFF, MURPHY, GRIFFIN, MARILYN J. KELLY and JANSEN, JJ.

SHEPHERD, Judge.

This appeal presents the first opportunity for this Court to employ the special panel conflict resolution provisions of Administrative Order No. 1990-6, 436 Mich lxxxiv (1990). On July 15, 1991, 190 Mich.App. 322, 479 N.W.2d 353, we granted the petition of the Oakland County Prosecutor to convene a special panel of this Court:

The Court orders that the petition to convene a special panel pursuant to Administrative Order No. 1990-6 is granted and the prior opinion in docket No. 126060 is vacated.

The question in conflict to be resolved is:

Whether substantial and compelling reasons justifying departure from mandatory minimum sentences, pursuant to MCL 333.7401(4); MSA 14.15(7401)(4), are limited to objective and verifiable prearrest factors, as held in People v. Downey, 183 MichApp 405; 454 NW2d 235 (1990) [ ¹], or whether a court has greater discretion to depart from mandatory minimum sentences, as held in [192 MICHAPP 105] People v. Troncoso, 187 MichApp 567; 468 NW2d 287 (1991).[ ²] [190 Mich.App. 322, 479 N.W.2d 353 (1991).]

We resolve the conflict in favor of a position that combines the holding in People v. Downey with that of the holding in People v. Krause, 185 Mich.App. 353, 460 N.W.2d 900 (1990). The effect of this holding is that trial courts may depart from mandatory minimum sentences for substantial and compelling reasons that are objective and verifiable. Trial courts will be permitted to consider both prearrest and postarrest factors in determining whether to depart from the mandatory minimum sentences. In the present case we remand for resentencing under the principles announced herein.

I

On July 18, 1988, defendant Windall Davenshire Hill sold three ounces of cocaine to an undercover narcotics officer. As a result, Hill was immediately arrested and charged with delivery of more than 50 but less than 225 grams of a mixture containing cocaine. M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii). At the time, the presumptive minimum sentence for the offense was five years in prison. However, pursuant to M.C.L. Sec. 333.7401(4); M.S.A. Sec. 14.15(7401)(4), the sentencing judge was free to impose a lesser sentence "if the court finds on the record that there are substantial and compelling reasons to do so."

Unable to post bond, defendant remained incarcerated in the Oakland County jail until November 7, 1988. On that date, defendant Hill appeared before Oakland Circuit Judge Norman L. Lippitt and pleaded guilty to the charge. Following the [192 MICHAPP 106] acceptance of the plea, a sentencing hearing was immediately held. According to the presentence report, defendant is a nineteen-year-old high-school graduate who resides with his parents. He is described by the probation officer as "the product of an intact, stable home environment." Defendant has no prior criminal record, either as an adult or as a juvenile. His father, Winston Hill, is employed as a hi-lo driver for Ford Motor Company. His mother, Fannie Hill, is a college graduate who teaches elementary school in Detroit. Neither parent has a criminal record. The report further states that defendant's parents "do not want to see their son go to prison, and would do anything in their power to assure that he, if placed on probation, would successfully complete it."

At the sentencing hearing, defense counsel emphasized all these factors to the court. In addition, defense counsel pointed out that there were no weapons involved in the offense, that the amount of cocaine (75.86 grams) marginally exceeded the fifty-gram threshold, and that defendant was not a typical "hard core" drug dealer. Defendant's father also addressed the court and explained how he, as a parent, would guide defendant's behavior should defendant avoid incarceration.

In view of these facts, the court deemed it appropriate to give defendant one year to "straighten out." Accordingly, the court delayed sentencing for eleven months, until October 2, 1989, and imposed several conditions on defendant. Apparently the delayed sentencing procedure adopted by the trial court is not permitted by law. The delayed sentencing statute applies only to probationable offenses, M.C.L. Sec. 771.1(1); M.S.A. Sec. 28.1131(1). The present offense is not a probationable offense. M.C.L. Sec. 333.7401(3); M.S.A. Sec. 14.15(7401)(3). [192 MICHAPP 107] Notwithstanding the impropriety of the sentence, the prosecutor made no attempt to seek leave to appeal from the delayed sentence and permitted defendant to attempt to comply with the court's conditions.

Defendant was ordered to maintain full-time employment, pay $300 in court costs at the rate of $30 a month, and "comply with all other conditions of the probation department," including periodic urinalysis. Judge Lippitt made it clear that defendant would receive a five- to twenty-year prison term if he failed to comply.

On October 23, 1989, defendant Hill appeared for delayed sentencing before Judge Barry L. Howard. Judge Howard had succeeded Judge Lippitt, who had retired. As the result of defendant's exemplary postarrest conduct, the updated presentence report contained a recommendation for imprisonment of only five to twenty months. The probation officer described defendant's rehabilitation as follows:

Hill has responded favorably throughout the period of delay. He has complied with all conditions as specified on his delayed sentence order. Hill continues to maintain residency with his parents in Southfield. Since February 1989, Hill has held steady employment. He was employed at Montgomery Wards in Southfield until June 1989 working in the capacity of a tire/battery changer. For the next two months, Hill worked for the Borman Corporation as a stock person. On 9-6-89, Hill began employment at Treasure Foods Market in Detroit, earning $4 per hour, also employed in the stock department.

A check with the Reimbursement Department indicates all monies have been paid in full. A LEIN check dated 8-30-89 reveals no subsequent arrests or outstanding warrants.

[192 MICHAPP 108] After hearing arguments, Judge Howard sentenced defendant to one year in the county jail. Judge Howard found substantial and compelling reasons to depart from the presumptive five-year minimum term and justified the departure as follows:

The Court: ... In many of these cases I am torn, like most judges, by what the statute says and then I have to look at the individual. Further, in this case, this is a delayed sentence. It occurred in approximately November 1988, in which my predecessor, Judge Lippitt, implied that if this young man were to go straight, that there would be a deviation from the minimum of the sentence. I'm not sure that I would have done it. In fact, I probably would not have. However, I am going to be bound by my predecessor's word.

I do find that there is [sic] a substantial and compelling reasons to go beyond the statutory minimum. I find that this man is a first offender. I note the probation report as to his family. He has a strong family unit. It does not appear anybody else has had a prior criminal record. He appears to have shown, at least in the year, remorse, although I'm not sure that should be figured in. However, I do not believe that probation is appropriate.

It is the sentence of this Court that he serve one year in the Oakland County jail.

On November 8, 1989, the prosecutor filed a "motion to correct invalid sentence." The prosecutor argued that the sentence was invalid because it was not indeterminate. On January 8, 1990, defendant was resentenced to one to twenty years in prison. Once again, the court articulated its reasons for the departure:

The Court: ... The Court again in sentencing has looked at the transcript as my predecessor [192 MICHAPP 109] Judge Lippitt put forth. If I had been there it may have been very different. However, I will honor Judge Lippitt's agreement. I find that there is [sic] substantial and compelling reasons for the age of Mr. Hill; he has never been convicted of any crime; he has no prior contacts with the court; there were no weapons involved; he comes from a religious family and a good family that have been very supportive of him and it appears from the facts and circumstances that he is atypical of a hard core drug dealer and for those reasons I will impose a one to twenty sentence.

The prosecutor appealed to this Court, arguing that the reasons for departure were not substantial and compelling and that defendant should be resentenced to the presumptive minimum term. In an unpublished opinion, a panel of this Court rejected the prosecutor's arguments and affirmed defendant's sentence:

In the present case, we agree that there were substantial and compelling reasons for departing from the mandatory minimum sentence and find no abuse of discretion. Although we are not convinced that there were any facts surrounding the crime which would mitigate defendant's culpability, we cannot...