PEOPLE OF MI V DANNY MIKE DANIELAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
Oakland Circuit Court
LC No. 97-150521 FH
DANNY MIKE DANIEL,
Before: Holbrook, Jr., P.J., and Markey and Whitbeck, JJ.
WHITBECK, J. (dissenting)
I respectfully dissent. I conclude that the trial court improperly considered, and at that heavily
considered, a subjective factor, namely defendant’s expressions of remorse, in deciding to exercise a
“downward departure” in sentencing defendant for his conviction of delivery of more than 50, but less
than 225, grams of cocaine, MCL 333.7402(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). While the
circumstances of this case may have provided a basis for the trial court to properly exercise its
discretion to depart from the generally mandatory ten-year minimum sentence for this crime, the trial
court’s rationale for its downward departure was inappropriate. Accordingly, I would remand for
resentencing at which the decision whether to undertake a downward departure would be made with
regard to only objective and verifiable factors.
As indicated in the majority opinion, a trial court must find on the record that there are
“substantial and compelling reasons” in order to depart from the generally mandatory minimum sentence
for the crime at issue. MCL 333.7401(4); MSA 14.15(7401)(4). A trial court may consider only
“objective and verifiable” factors in determining whether there are substantial and compelling reasons
for such a downward departure. People v Fields, 448 Mich 58, 62; 528 NW2d 176 (1995); People
v Perry, 216 Mich App 277, 280; 549 NW2d 42 (1996). In this regard, the Michigan Supreme Court
explicitly disapproved the consideration of a defendant’s expressions of remorse in deciding whether to
undertake a downward departure because that is a subjective factor. Fields, supra at 69, 80.
An appellate court cannot review whether the defendant has expressed remorse, or if he
has a desire to help others, factors cited by the trial judge in this case. [Id. at 69.]
In the case at hand, the trial court’s remarks at sentencing reflect that it improperly considered
defendant’s expressions of remorse as a factor – and indeed a heavy factor – in finding substantial and
compelling reasons for a downward departure. In the course of setting forth its rationale for deviating
from the generally mandatory minimum sentence, the trial court stated:
I’m also very impressed by your letter of remorse. I am impressed by the remorse that
you’ve shown. So many of the people … who come before me when I sentence them
over the years, their only comment was, “I’m going to appeal you, Judge.” That’s what
I get. There is a man that has not mentioned that; of course he has a right to. But he
said he’s very sorry. And remorse is very important to the re-establishment [sic] and to
Thus, I conclude that the trial court erred by considering defendant’s expressions of remorse as a factor
in deciding to depart from the generally mandatory minimum sentence.
However, as in Fields, supra at 80, the trial court also considered appropriate objective and
verifiable factors in deciding to undertake a downward departure. In particular, the trial court stated
that it was considering defendant’s lack of a prior record, age and cooperation with law enforcement, all
of which were appropriate objective and verifiable factors. Id at 76-77, 80.1 The trial court also
properly considered the existence of familial support for defendant as an objective and verifiable factor.
See id. at 78 (noting with apparent approval the consideration in People v Harvey, 203 Mich App
445, 448; 513 NW2d 185 (1994) of the defendant’s “strong family support”); Perry, supra at 280
282 (considering that the defendant lived with his mother and stepfather as an objective and verifiable
In Fields, supra, the Michigan Supreme Court made it clear that the appropriate remedy in this
situation is to remand for resentencing with only objective and verifiable factors to be considered by the
trial court in determining whether to depart downward from the generally mandatory minimum sentence:
Sentencing normally is not a job for the appellate court, the usual procedure
being to send the case back to the trial judge for resentencing if it is found that the
sentence is in some respect deficient. It is unclear whether the trial judge in this case
would have found substantial and compelling reasons to deviate from the statutory
minimum solely on the basis of objective and verifiable factors.
Therefore we remand the case to the trial court for the judge to determine
whether, under the standard announced today, he finds substantial and compelling
reasons to deviate from the statutory minimum. [Fields, supra at 80 (citation omitted).]
See also Perry, supra at 283-284. Thus, I would remand this case for resentencing2 at which the trial
court would only consider objective and verifiable factors in deciding whether to undertake a downward
departure. I underscore that I am not concluding at this point that a downward departure in this case
would necessarily be inappropriate. Indeed, I am cognizant that defendant was only age seventeen, and
apparently a high school student, at the time of these crimes. A downward departure may well be
justified, but to be legally proper it must be supported by an appropriate rationale.
I respectfully dissent.
/s/ William C. Whitbeck
I note that the prosecution asserts in its brief, “The claim of the Defendant’s counsel that the Defendant
cooperated with the police after his arrest is not verified by any information on the record or in the
Presentence Report.” However, in light of my analysis, I find it premature to consider whether the trial
court clearly erred, Perry, supra at 280, by finding that defendant assisted the police.
Because defendant’s one to twenty year sentences on his other convictions have not been challenged
on appeal, I would not disturb those sentences.