People v. Troncoso

• Decision Date: 04 March 1991
• Docket Number: Docket No. 115976
• Citation: 187 Mich.App. 567,468 N.W.2d 287
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant Cross-Appellee, v. Jose TRONCOSO, Defendant-Appellee Cross-Appellant. 187 Mich.App. 567, 468 N.W.2d 287
• Court: Court of Appeal of Michigan — District of US

Page 287

468 N.W.2d 287

PEOPLE of the State of Michigan, Plaintiff-Appellant Cross-Appellee, v. Jose TRONCOSO, Defendant-Appellee Cross-Appellant.

Docket No. 115976.

187 Mich.App. 567, 468 N.W.2d 287

Court of Appeals of Michigan.

Submitted Dec. 10, 1990, at Detroit.

Decided March 4, 1991, 9:05 a.m.

Leave to Appeal Denied April 3, 1991.

Released for Publication May 6, 1991.

[187 MICHAPP 568] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., and George E. Ward, Chief Asst. Pros., for People.

Mark H. Magidson, Detroit, for defendant-appellee.

Before McDONALD, P.J., and MICHAEL J. KELLY and GRIFFIN, JJ.

GRIFFIN, Judge.

The people appeal ¹ a sentence of two to twenty years imposed upon the defendant for a plea-based conviction of possession with intent to deliver 50 to 225 grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii). The prosecutor argues that Recorder's Court Judge Dominick R. Carnovale failed to articulate on the record "substantial and compelling reasons" to justify a departure from the presumptive five-year minimum sentence for the offense. We disagree and affirm.

I

In 1987-88, the Legislature sought to moderate [187 MICHAPP 569] our previously rigid and uncompromising drug laws by granting sentencing judges discretion to depart from certain presumptive minimum terms if the sentencing courts find on the record "there are substantial and compelling reasons to do so." The Senate Analysis of the bill package indicates that the Legislature intended to give the sentencing judges "greater flexibility in making sentencing decisions based on the individual circumstances of a case":

Also, by allowing judges to depart from the minimum terms, and reducing the minimum for larger quantities, the bill would moderate what has been an uncompromising law and would give judges greater flexibility in making sentencing decisions based on the individual circumstances of a case. [Senate Fiscal Agency, SB 598, 600, 603, 610: Third Analysis, August 29, 1988.]

Further legislative history ² may be found in 68 Mich BJ 1179 (1989) in the form of an "Opinion and Dissent" letter written by David Cahill, Legal Counsel for the House Judiciary Committee. Therein, Cahill tracks the emergence of the words "substantial and compelling" in the statute and states that the phrase was intentionally undefined "so that the trial bench would have the tools available to do justice in individual circumstances":

To the Editor:

George Ward's article in the October Bar Journal[187 MICHAPP 570] ntitled "Drug Sentences: Reining in Knight-Errantry" is an inaccurate report on the legislative history of the two public acts (1987 PA 275 and 1988 PA 47) which allow a judge not to impose certain mandatory minimum drug sentences if the judge finds that there are "substantial and compelling reasons to do so."

The case of People v Diamond, 144 Mich App 787 [376 N.W.2d 192 (1985) ], lv den 424 Mich 894 (1986), was not considered by the Legislature when these public acts were drafted. Furthermore, Michigan does not have a "presumptive sentencing" system. Therefore, any use of the words "substantial and compelling" as a term of art in such a system, in Minnesota or elsewhere, is irrelevant to the interpretation of Michigan statutes which are not part of such a system.

Finally, the lengthy list of sentencing factors which Mr. Ward believes should not be "substantial and compelling reasons" was never presented to or considered by the Michigan Legislature.

Instead, the "substantial and compelling reasons" departure language originated with a bill about seat belts.

House bill 4343 of the 1987-88 legislative session contained language which would have required a judge to impose a certain minimum fine for a seat belt violation unless the judge "makes a finding on the record or in writing that, under the circumstances surrounding the infraction, the imposition of the full amount of the fine and costs or of any fine and costs would be unjust." HB 4343 did not make it into law, but the idea of a mandatory minimum, coupled with a "departure" so that the judge could avoid an individual injustice, had been planted in the minds of several legislators.

In the summer of 1987, the Speaker of the House and the Senate Majority Leader directed Representative Perry Bullard and Senator Jack Welborn to prepare a package of anti-crime legislation. Some prosecutors and judges had told these legislators that the drug sentencing system in effect at that time, with its totally inflexible "mandatory[187 MICHAPP 571] minimum" scheme, delayed the resolution of many cases and occasionally produced unjust results. Therefore, these two legislators agreed to propose the "substantial and compelling reasons" downward departure mechanism so that the trial bench would have the tools available to do justice in individual circumstances.

The "substantial and compelling" phrase itself was taken from a series of bills on sentencing guidelines which also did not become law.

The two public acts in question, creating the "substantial and compelling" departure in drug cases, then became law as Representative Bullard and Senator Welborn had proposed.

As neither "substantial" nor "compelling" are defined, the words have their ordinary meanings.

/s/ David Cahill, Legal Counsel

House Judiciary Committee

[68 Mich B J 1179 (1989).]

II

Despite such history, a panel of this Court in People v. Downey, 183 Mich.App. 405, 454 N.W.2d 235 (1990), severely restricted the discretion of sentencing judges to deviate from the presumptive minimums. Obviously influenced by Chief Assistant Prosecutor Ward's article Drug Sentences: Reining in Knight-Errantry, 68 Mich B J 976 (1989), this Court created standards and hurdles which were never contemplated by the Legislature. In particular, the Downey Court invented an "objective/subjective" dichotomy to serve as a litmus test of whether a particular reason will prove to be "substantial and compelling." The test created by the Downey panel is as follows:

We should, however, state that the term "substantial and compelling" implies that the factor [187 MICHAPP 572] must be capable of verification and thus is an objective standard as opposed to a subjective one. [Id. at 415, 454 N.W.2d 235. Emphasis added.]

Additionally, Downey established a line of demarcation between prearrest and postarrest conduct:

[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. at 415-416, 454 N.W.2d 235.]

Later in People v. Krause, 185 Mich.App. 353, 358, 460 N.W.2d 900 (1990), this Court rejected Downey's prearrest-conduct limitation:

[W]e 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.

The majority in Krause, however, affirmed the remainder of the Downey test, including its requirements that the "substantial and compelling" reasons be "objective and verifiable." Also see People v. Clark, 185 Mich.App. 127, 460 N.W.2d 246 (1990), and People v. Pearson, 185 Mich.App. 773, 462 N.W.2d 839 (1990).

Finally, we are cognizant of a footnote in the dissenting opinion in People v. Schultz, 435 Mich. 517, 546, n. 19, 460 N.W.2d 505 (1990), in which Justice Brickley cites Downey with approval.

III

The primary goal of judicial construction of [187 MICHAPP 573] statutes is to ascertain and give effect to the intent of the Legislature. People v. Hawkins, 181 Mich.App. 393, 396, 448 N.W.2d 858 (1989). The role of the judiciary is to construe statutes as intended by the Legislature, not to rewrite them. Lapeer Co. Dep't of Social Services v. Harris, 182 Mich.App. 686, 689, 453 N.W.2d 272 (1990). Absent a statutory definition or controlling judicial definition, we must comply with the legislative directive to construe statutory language according to the "common and approved usage" of the words. M.C.L. Sec. 8.3a; M.S.A. Sec. 2.212(1); ³ State ex rel. Wayne Co. Prosecuting Attorney v. Levenburg, 406 Mich. 455, 465, 280 N.W.2d 810 (1979); Fenton Area Public Schools v. Sorensen-Gross Const. Co., 124 Mich.App. 631, 639, 335 N.W.2d 221 (1983). In doing so, resort to dictionary definitions is appropriate. Id.

The term "substantial" is defined in Webster's Third New International Dictionary, Unabridged Edition (1981) as

not seeming or imaginary: not illusive ... being of moment: important, essential ... considerable in amount, value, or worth ... soundly based: carrying weight.

Similarly, The Random House Dictionary of the English Language: Unabridged Edition (1987) defines "substantial" as

of ample or considerable amount, quantity ... basic or essential; fundamental ... of real worth, [187 MICHAPP 574] value, or effect ... essential, material, or important.

According to Random House, the term "compelling" means "overpowering ... having a powerful and irresistible effect." More to the point is Webster's Third, which defines "compelling" as

to urge irresistibly by moral or social pressure ... to force by personal temperament or other subjective considerations [ ⁴] ... to force or cause irresistibly ... to exert an irresistible influence. [Emphasis added.]

In light of these definitions and the Legislature's expressed intent to expand sentencing discretion, we cannot subscribe to the Downey restrictions which limit the sentencing court's consideration to prearrest factors capable of objective verification. The terms used by the Legislature plainly contemplate a broader scope of relevant criteria. The prosecutor's argument that "substantial and compelling" reasons should be limited to a defendant's objective and verifiable prearrest conduct is a public policy argument which is more appropriately...