PEOPLE OF MI V MARK EDWARD LEE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 26, 2002
Plaintiff-Appellee,
v
No. 226144
Calhoun Circuit Court
LC No. 99-000862-FH
MARK EDWARD LEE,
Defendant-Appellant.
Before: O’Connell, P.J., and Sawyer and Smolenski, JJ.
O’CONNELL, P.J. (dissenting).
I respectfully disagree with my colleagues’ conclusion that remand for resentencing is
required in the instant case. In departing from the statutory sentencing guidelines’ recommended
minimum range, the trial court properly considered a factor not already accounted for in the
statutory guidelines. Further, I believe that the fact that defendant has proven himself adverse to
rehabilitation following an extensive criminal history is objective and verifiable to the extent that
it may properly be relied on in departing from the recommended guidelines’ range. Therefore, I
would affirm defendant’s sentence.
The majority initially concludes that the trial court acted in contravention of MCL
769.34(3)(b)1 in departing from the recommended guidelines’ range on the basis of defendant’s
failure to change his behavior following his previous convictions. Specifically, the trial court
emphasized defendant’s “singular lack of ability to respond to the sentences that have been
imposed” on defendant in the past.2 The court further noted defendant’s “consistent record of
1
MCL 769.34(3)(b) provides:
The court shall not base a departure on an offense characteristic or offender
characteristic already taken into account in determining the appropriate sentence
range unless the court finds from the facts contained in the court record, including
the presentence investigation report, that the characteristic has been given
inadequate or disproportionate weight.
2
According to the judgment of sentence, defendant’s sentence was enhanced under MCL
333.7413(2), which provides that a defendant convicted of a second or subsequent drug offense
“may be imprisoned for a term not more than twice the term otherwise authorized.” A violation
of MCL 333.7403(2)(a)(v) is punishable by imprisonment for not more than four years, or a fine
(continued…)
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getting into trouble with the law,” and the concomitant absence of rehabilitation on the part of
defendant.
Although I agree with the majority that prior record variables (PRV) one through seven,
§ § 51-57 of the statutory sentencing guidelines, MCL 777.1 et seq., address a defendant’s prior
criminal history, I do not accept my learned colleagues’ contention that a defendant’s inability to
rehabilitate is encompassed by these provisions of the statutory sentencing guidelines. “The
[sentencing] court may depart from the guidelines for nondiscriminatory reasons where there are
legitimate factors not considered by the guidelines or where factors considered by the guidelines
have been given inadequate or disproportionate weight.” People v Armstrong, 247 Mich App
423, 425; 636 NW2d 785 (2001). Indeed, our courts have consistently held that a defendant’s
potential to rehabilitate is a proper factor to be considered by the court when imposing sentence.
People v Houston, 448 Mich 312, 323; 532 NW2d 508 (1995); People v Cervantes, 448 Mich
620, 627-628; 532 NW2d 821 (1995) (Riley, J.); People v Snow, 386 Mich 586, 592; 194 NW2d
314 (1972).
I also disagree with the majority’s assertion that the trial court erred as a matter of law in
concluding that defendant’s failure to improve his behavior in spite of his lengthy criminal
history was objective and verifiable. “[O]bjective and verifiable factors a[re] those ‘actions or
occurrences which are external to the minds of the judge, defendant and others involved in
making the decision . . . [that are] capable of being confirmed.’” People v Fields, 448 Mich 58,
66; 528 NW2d 176 (1995), quoting People v Krause, 185 Mich App 353; 460 NW2d 900 (1990);
see also People v Izarraras-Placante, 246 Mich App 490, 497; 633 NW2d 18 (2001).
More recently, in a slightly different context, our Supreme Court has observed that a
factor is “substantial and compelling” where it is objectively verifiable, “rather than requiring
assessment by the subjective impression of a sentencing judge.” People v Daniel, 462 Mich 1,
11; 609 NW2d 557 (2000). Requiring a sentencing court to articulate objective and verifiable
reasons for departing from the recommended guidelines’ range facilitates appellate review. Id.;
Fields, supra at 69-70. In the instant case, a review of defendant’s storied criminal history,
contained in the presentence investigation report, objectively verifies that defendant has been
completely unable to conform his behavior to the requirements of law and therefore has an
extremely low potential for rehabilitation.3 In my view, the court did not abuse its discretion in
finding defendant’s failure to rehabilitate himself to be a substantial and compelling reason to
depart from the guidelines’ recommended minimum sentence range. MCL 769.34(3).
(…continued)
of not more than $25,000, or both.
3
Thus, in contrast to the sentencing court’s observation in People v Babcock, 244 Mich App 64,
79; 624 NW2d 479 (2000), that the defendant “still didn’t fully appreciate what he’s done,” the
trial court’s consideration of defendant’s inability to rehabilitate in the instant case was
objectively verifiable.
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I would affirm.
/s/ Peter D. O’Connell
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