People v. Clark

• Decision Date: 25 September 1990
• Docket Number: Docket No. 117217
• Citation: 185 Mich.App. 127,460 N.W.2d 246
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Sean CLARK, Defendant-Appellee. 185 Mich.App. 127, 460 N.W.2d 246
• Court: Court of Appeal of Michigan — District of US

Page 246

460 N.W.2d 246

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Sean CLARK, Defendant-Appellee.

Docket No. 117217.

185 Mich.App. 127, 460 N.W.2d 246

Court of Appeals of Michigan.

Submitted Feb. 7, 1990.

Decided May 29, 1990.

Released for Publication Sept. 25, 1990.

[185 MICHAPP 128] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., and George E. Ward, Chief Asst. Prosecutor, for the People.

Frank Singer, Detroit, for defendant-appellee.

Before SULLIVAN, P.J., and DOCTOROFF and FITZGERALD, ^* JJ.

PER CURIAM.

Defendant pled guilty to possession of at least 225 grams but less than 650 grams of cocaine, M.C.L. Sec. 333.7403(2)(a)(ii); M.S.A. Sec. 14.15(7403)(2)(a)(ii). The trial court sentenced him to a term of five to thirty years of imprisonment. The prosecutor appeals from the sentence imposed and contends that he has authority to appeal as of right defendant's sentence and that the trial court erred in imposing a sentence below the statutory minimum.

According to defendant, on October 19, 1988, he was at a house in Detroit when a friend offered him $100 to hold a large package containing approximately 370 grams of cocaine for an hour or [185 MICHAPP 129] more. The friend brought a safe into the basement of the house, placed the cocaine inside and locked the safe. Defendant hid the safe behind a door, and his friend left. When the friend did not come back as expected, defendant left, and he was arrested upon his return later that night.

Regarding the first issue raised, we agree that the prosecutor may appeal as of right the defendant's sentence pursuant to M.C.L. Sec. 770.12(1); M.S.A. Sec. 28.1109(1), as amended by 1988 PA 66. See People v. Downey, 183 Mich.App. 405, 407-409, 454 N.W.2d 235 (1990); People v. Reynolds, 181 Mich.App. 185, 448 N.W.2d 774 (1989). However, defendant argues that, because a successful appeal by the prosecutor could subject him to an increased sentence upon resentencing, allowing the prosecutor to appeal from a sentence violates due process. Because resentencing after a successful appeal by the prosecutor from the defendant's original sentence would be based on specific, articulable grounds, due process would not be violated. The due process requirement that vindictiveness against defendant not play a part in his resentencing after retrial is simply not implicated in this context.

The prosecutor contends that the reasons given by the trial judge for departing from the minimum term of imprisonment mandated by Sec. 7403(2)(a)(ii) were not "substantial and compelling," within the meaning of that section. Section 7403(2)(a)(ii) mandates imprisonment for not less than ten years nor more than thirty years. In sentencing defendant, the trial court found as mitigating circumstances that James Poole, defendant's friend who allegedly supplied the drugs, was sentenced to a five- to thirty-year term of imprisonment and that defendant's possession of the drugs was transitory, was for another person, and was not as a dealer. In a private, side-bar conversation, the court also considered[185 MICHAPP 130] as a mitigating circumstance defendant's cooperation with the police in providing information which led to the supplier's arrest. The trial court found those circumstances to constitute "substantial and compelling reasons" to depart from the mandatory minimum term of imprisonment, see Sec. 7403(3), and sentenced defendant to a term of five to thirty years.

In Downey, supra, a panel of this Court considered this issue in the context of M.C.L. Sec. 333.7401(2)(a)(ii)-(iv); M.S.A. Sec. 14.15(7401)(2)(a)(ii)-(iv), which prohibits controlled substance violations involving delivery and manufacture. Because departure from the minimum term of imprisonment authorized under either Sec. 7401 or Sec. 7403 must be based on a finding "that there are substantial and compelling reasons to do so," Secs. 7401(4) and 7403(3), the reasoning of the Court in Downey is applicable in this case.

After consideration of the statutory language, the panel in Downey, supra 183 Mich.App. at 410-412, 454 N.W.2d 235, reviewed the presumptive sentencing statutes and guidelines from other states and listed factors which could be considered substantial and compelling reasons to depart from the mandatory minimum sentences contained in Sec. 7401(2)(a)(ii)-(iv). The panel stated:

We conclude that the Legislature intended to give 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. [Id. at 416, 454 N.W.2d 235].

[185 MICHAPP 131] In reaching its conclusion that the factor must be objective, the Court explained that it must be capable of verification. Downey, supra. A defendant's prior record, for example, is readily verifiable and objective. However, "a defendant's protestations of remorse and his actions after his arrest which are relied upon to show his remorse and rehabilitative potential are much more subjective and thus would not, absent other exceptional circumstances, be appropriate factors to consider." Id.

Here, the trial judge found "the most mitigating circumstance" was that Poole had received a sentence below the statutory requirement. However, this factor is not one we consider to be substantial and compelling. The policy of this state favors individualized sentencing for every defendant. People v. Adams, 430 Mich. 679, 686, 425 N.W.2d 437 (1988); People v. Coles, 417 Mich. 523, 537, 339 N.W.2d 440 (1983). The trial court has broad discretion to impose a sentence tailored to the circumstances of the case and the offender in an effort to balance society's need for protection against its interest in rehabilitating the offender. Id.; People v. Van Etten, 163 Mich.App. 593, 595, 415 N.W.2d 215 (1987), lv. den. 428 Mich. 922 (1987). Although fairness and equal treatment in sentencing are desirable, because our system provides for individualized sentencing based on many factors, a defendant's sentence does not necessarily reflect the degree of his culpability. As this Court explained in People v. Weathington, 183 Mich.App. 360, 365, 454 N.W.2d 215 (1990):

We find no basis in Coles, supra, or any other body of law, to support the concept that defendant is necessarily entitled to a more lenient sentence merely because his fellow participants in the crime were fortunate enough to receive such leniency before a...