People v. Pearson, Docket No. 121788

• Decision Date: 06 November 1990
• Docket Number: Docket No. 121788
• Citation: 185 Mich.App. 773,462 N.W.2d 839
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William Robert PEARSON, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 839

462 N.W.2d 839

185 Mich.App. 773

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William Robert PEARSON, Defendant-Appellee.

Docket No. 121788.

Court of Appeals of Michigan.

Submitted Aug. 9, 1990.

Decided Oct. 15, 1990.

Released for Publication Nov. 6, 1990.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Sarah E. Hunter, Asst. Pros. Atty., for the People.

Ronald G. Ionetz, Warren, for defendant-appellee.

Before REILLY, P.J., and CYNAR and WAHLS, JJ.

WAHLS, Judge.

On August 7, 1989, defendant pled guilty in Oakland Circuit Court to the charges of delivery of less than 50 grams of a mixture containing cocaine and delivery of 50 grams or more, but less than 225 grams of a mixture containing cocaine, M.C.L. Sec. 333.7401(2)(a)(iii) and (iv); M.S.A. Sec. 14.15(7401)(2)(a)(iii) and (iv). On September 5, 1989, defendant was sentenced to a term of 1 to 20 years on his conviction of delivery of less than 50 grams of a mixture containing cocaine, and to a term of 2 1/2 to 20 years on his conviction of delivery of 50 grams or more of a mixture containing cocaine. The prosecutor appeals as of right claiming that the sentencing court abused its discretion when it sentenced defendant to a minimum term of 2 1/2 years on his conviction of delivery of 50 grams or more of a mixture containing cocaine, because there were no substantial and compelling reasons for departing downward from the minimum term of 5 years prescribed by the Legislature,1987 P.A. 275, M.C.L. Sec. 333.7401(2)(a)(iii) and (4); M.S.A. Sec. 14.15(7401)(2)(a)(iii) and (4).

The record reveals that officers of the Oakland County Narcotics Enforcement Team were conducting an investigation into illegal drug sales when their investigation focused on David Dunaway in December, 1988. Eventually, an undercover officer, Deputy Walter Blackmer, contacted Dunaway in order to purchase an ounce of cocaine. On December 16, 1988, Dunaway told Blackmer that the sale of an ounce of cocaine for $1,100 dollars had been arranged through Dunaway's supplier. As it turned out, Dunaway's supplier was defendant. Blackmer and Dunaway met defendant later that day in the parking lot of a party store. Defendant then sold the cocaine to Blackmer through Dunaway, who was acting as an intermediary. Five days later on December 21, 1988, Dunaway arranged the sale of three ounces of cocaine for $3,000. As before, defendant sold the cocaine to Blackmer through Dunaway. Defendant and Dunaway were then arrested, and charges were filed against them for both drug transactions.

Following a joint preliminary examination on January 3, 1989, defendant and Dunaway were bound over for trial on charges of delivery of less than fifty grams of a mixture containing cocaine, and delivery of fifty grams or more of a mixture containing cocaine. Defendant ultimately pled guilty to the charges. Apparently, Dunaway also pled guilty to the charges because, as reported at defendant's sentencing, Dunaway was sentenced to a term of three to twenty years on his conviction of delivery of fifty grams or more of a mixture containing cocaine.

As indicated above, Sec. 7401(4) provides that the sentencing 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." At defendant's sentencing, the court found that "there are some substantial and compelling reasons to deviate" from the minimum sentence of five years. The reasons specifically enumerated by the court were defendant's age of twenty-three years, defendant had no prior record, "these appear to be isolated incidences [sic] and it's just over the fifty grams on the one charge," and "the co-defendant, Mr. Dunaway, did receive a sentence from Judge Schnelz with a minimum term of three years." The court also stated that it was "[t]aking into consideration everything that has been presented." Among the reasons presented by defendant were that defendant had a four-month-old daughter and was engaged to be married, defendant was a high school graduate, and, since his arrest, defendant had obtained a builder's license and started a carpentry company that employed three full-time workers. Further, defendant expressed "great remorse" and "didn't realize the consequences of his actions."

The scope of the sentencing court's discretion under Sec. 7401(4) to depart from the minimum sentences prescribed in Secs. 7401(2)(a)(ii)-(iv), and, thus, the issue of what constitutes substantial and compelling reasons for departure, was first addressed by this Court in People v. Downey, 183 Mich.App. 405, 454 N.W.2d 235 (1990). After careful analysis of Sec. 7401, this Court in Downey, supra, p. 416, 454 N.W.2d 235, concluded:

[T]he 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. [Emphasis added.]

Earlier in Downey, supra, p. 414, 454 N.W.2d 235, after noting the four sentencing criteria set forth in People v. Snow, 386 Mich. 586, 592, 194 N.W.2d 314 (1972), this Court stated that the presumptive sentencing scheme of Sec. 7401

reflects the Legislature's, and thus society's, determination that the length of the sentences contained in the statute are necessary to discipline the offender, to protect society and to deter others from committing drug offenses.

This fact must remain foremost among the sentencing court's considerations when determining whether the presumptive minimum sentence is "clearly inappropriate." Thus, as this Court in Downey, supra, 183 Mich.App. p. 416, 454 N.W.2d 235, concluded:

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 also begin our analysis from that perspective, and, therefore, "[w]e review the trial court's decision to impose an exceptional sentence for an abuse of the narrowly defined discretion which it possesses." Downey, supra, p. 416, 454 N.W.2d 235.

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