PEOPLE OF MI V JOHN HODGES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 13, 1996
Plaintiff-Appellant,
v
No. 176383
LC No. 90-102887-FH
JOHN HODGES,
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 176778
LC No. 90-102887-FH
JOHN HODGES,
Defendant-Appellant.
Before: Cavanagh, P.J., and Marilyn Kelly and J.R. Johnson,* JJ.
PER CURIAM.
Defendant pleaded guilty of three counts of delivery of fifty grams or more but less than 225
grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). Defendant was sentenced to
concurrent terms of ten to twenty years’ imprisonment. Defendant and the prosecutor both appealed,
and this Court remanded for resentencing. People v Hodges, unpublished opinion per curiam of the
Court of Appeals, issued March 29, 1994 (Docket Nos. 155439, 155717). At a subsequent hearing,
a different judge sentenced defendant to consecutive terms of four to twenty years’ imprisonment on
one count and three to twenty years’ imprisonment on the other two counts. Both parties appeal as of
right. We remand.
* Circuit judge, sitting on the Court of Appeals by assignment.
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I
The prosecutor argues that the trial court erred in departing from the mandatory minimum when
resentencing defendant as this Court had already determined that the sentences of ten to twenty years’
imprisonment were proportionate under People v Milbourn, 435 Mich 630, 636; 461 NW2d 1
(1990). We disagree. When this Court remanded this case for resentencing, the effect was to vacate
the original sentence. Although a trial court, on remand, must strictly comply with the mandate of an
appellate court, People v Bellanca, 43 Mich App 577, 579; 204 NW2d 547 (1972), it may take any
action that would otherwise be proper, so long as it is not inconsistent with the instructions of the
appellate court, People v Fisher, 449 Mich 441, 446-447; 537 NW2d 577 (1995). Under the
circumstances of this case, where the appellate court remanded for resentencing without directions to
the trial court, the doctrine of the law of the case does not apply. Id. at 447. At resentencing, the trial
court had discretion to impose whatever sentence it believed would be appropriate. See People v
Marshall, 204 Mich App 584, 590-591; 517 NW2d 554 (1994).
II
The prosecutor also contends that the trial court erred in departing from the mandatory minimum
sentence of ten years. The trial court may depart from mandatory minimum sentences only for
substantial and compelling reasons. Moreover, the reasons for departure from a mandatory minimum
sentence must be objective and verifiable. The trial court’s determination that a particular factor does or
does not exist is reviewed under the clearly erroneous standard. Should the trial court find that the
factors qualify as substantial and compelling reasons to impose a sentence below the statutory minimum,
that finding is then reviewed for an abuse of discretion. People v Perry, 216 Mich App 277, 280; 549
NW2d 42 (1996) When the reviewing court finds that both appropriate and inappropriate factors were
considered, the case should be remanded for the sentencing court to determine whether it finds
substantial and compelling reasons to deviate from the statutory minimum sentence solely on the basis of
appropriate factors. Id. at 282.
In the present case, the trial court based its decision to depart from the mandatory minimum on
(1) the effect of defendant’s consecutive sentences, (2) defendant’s age, (3) defendant’s lack of a
criminal record at the time of the crimes, (4) defendant’s education and training, (5) defendant’s
dyslexia, (6) the fact that the police made an additional two buys from defendant although they could
have arrested him after the first buy, (7) the fact that each buy was only seven grams above the minimum
for the crime to which defendant pleaded, (8) defendant’s cooperation with the police, (9) defendant’s
potential for rehabilitation, as shown by his work history, and (10) a letter from the officer in charge of
the case stating that he believed that defendant had learned his lesson.
We conclude that the trial court considered both appropriate and inappropriate factors in
determining that there were substantial and compelling reasons to depart from the mandatory minimum.
The appropriate factors discussed by the trial court include defendant’s age, defendant’s lack of a
criminal record at the time of the crimes, defendant’s cooperation with the police, and defendant’s work
history. People v Fields, 448 Mich 58, 77; 528 NW2d 176 (1995). In addition, the trial court
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appropriately gave consideration to the effect of defendant’s consecutive sentences. People v Jeff
Davis, 196 Mich App 597, 601; 493 NW2d 467 (1992).
The trial court also considered defendant’s education and training and his dyslexia as a
substantial and compelling reason for departure. According to the updated presentence report,
defendant received his GED certificate and a certificate for a class in electronics theory I while he was
incarcerated. However, while defendant’s achievements in prison are commendable, we do not believe
that defendant’s prison accomplishments or his dyslexia “keenly” or “irresistibly” grab our attention as
factors “of considerable worth” in deciding the length of a sentence. See Fields, supra at 67.
Accordingly, we conclude that the trial court erred in considering these factors as substantial and
compelling reasons justifying departure.
The trial court also considered the fact that the police made an additional two buys from
defendant although they could have arrested him after the first buy. It is appropriate to depart from a
minimum statutory sentence when a sentencing court finds that the government’s actions, although not
rising to the level of entrapment, purposefully escalated the crime. Fields, supra at 79. In the present
case, defendant sold cocaine to undercover agents on March 2, 1990, August 23, 1990, and February
7, 1991. The record is silent as to why the police did not arrest him until after the third sale. The gaps
between the three buys may simply indicate that the police were trying to discover defendant’s source
or any accomplices that he might have. Therefore, we find that the trial court clearly erred in assuming
that the police purposefully delayed arresting defendant in order to increase the charges. Accordingly,
this factor should not have been used to justify a downward departure.
The fact that each buy was only seven grams above the minimum for the crime to which
defendant pleaded is not a substantial and compelling factor justifying a downward departure. People v
Krause, 185 Mich App 353, 359; 460 NW2d 900 (1990). It was also improper for the trial court to
consider the letter from the officer in charge of the case stating that he believed that defendant had
learned his lesson. The officer’s subjective evaluation of defendant’s remorse is clearly not objective
and verifiable. Cf. Perry, supra at 282-283.
Because we find that the trial court considered factors that were appropriate in conjunction with
factors that were not, we remand to the trial court for a determination of whether the court still finds
substantial and compelling reasons to deviate from the statutory minimum when limited to the
appropriate factors. Id. at 282. If the trial court again finds that there are substantial and compelling
reasons for departure, it should carefully consider the extent of the deviation it orders so as not to
impose a disproportionately lenient sentence. Id. at 284.
III
On cross-appeal, defendant argues that the sentences imposed by the trial court violate the
principle of proportionality. We disagree. The sentences imposed by the trial court are substantially
lower than the statutory minimum sentences, which are presumptively proportionate. Perry, supra at
284; People v Poppa, 193 Mich App 184, 189; 483 NW2d 667 (1992). In view of the lengthy list of
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factors considered by the trial court in fashioning defendant’s sentences, the fact that the trial court did
not specifically reference defendant’s good prison record does not mean that his sentence is
disproportionate.
Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Marilyn Kelly
/s/ J. Richardson Johnson
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