PEOPLE OF MI V DEON LAMONT CLAYPOOL
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 22, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 122696
DEON LAMONT CLAYPOOL,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
The issue in this case is whether it is permissible
for Michigan trial judges, sentencing under the legislative
sentencing guidelines pursuant to MCL 769.34, to consider,
for the purpose of a downward departure from the guidelines
range,
police
conduct
that
manipulation,
sentencing
escalation.
These
is
described
entrapment,
doctrines
are
as
or
based
sentencing
sentencing
on
police
misconduct, which, alone, is not an appropriate factor to
consider at sentencing.
Rather, we hold that, pursuant to
People v Babcock, 469 Mich 247; 666 NW2d 231 (2003), if it
can be objectively and verifiably shown that police conduct
or
some
other
intent,
that
sentencing
departure.
precipitating
altered
judge
as
cause
intent
a
can
ground
altered
be
for
a
defendant’s
considered
a
downward
by
the
sentence
Because information of this sort was noted by
the sentencing judge in this case, but it is not clear that
it was used properly, we vacate the decision of the Court
of Appeals in part and remand this case to the trial court
for resentencing or rearticulation on the record of the
court’s reasons for the departure.
I. FACTS AND PROCEDURAL BACKGROUND
This
case
arose
from
a
series
of
sales
of
crack
cocaine by defendant to an undercover police officer.
An
acquaintance of defendant’s in the drug trade introduced
him to an undercover officer as a potential customer.
On
March 8, 2001, the officer bought 28.35 grams of crack
cocaine for $1,100.
On March 12, 2001, he bought 49.2
grams for $2,000.
Finally, on March 14, 2001, he bought
127.575
$4,000.
grams
for
Defendant
was
arrested
and
charged with delivery of 50 or more, but less than 225,
grams of cocaine, reflecting the third sale.
2
Defendant pleaded guilty to this charge.1
carries
years
a
statutorily
mandated
imprisonment.2
of
legislative
sentencing
333.7401(4),3
the
sentence
this
for
minimum
However,
guidelines
statutorily
offense
can
and
mandated
be
The offense
sentence
according
the
ten
to
the
former
MCL
minimum
reduced
of
or
ten-year
“departed
from,” as it is described, if certain conditions set forth
in MCL 769.34(3)4 are met.
1
Defendant also pleaded guilty to charges concerning
the first and second buys in the series and various other
offenses that he committed during the time surrounding the
series of buys. However, the present appeal involves only
defendant’s sentence for the third offense described above,
delivery of 50 or more, but less than 225, grams of
cocaine.
2
Former MCL 333.7401(2)(a)(iii), in effect at the time
of this action. See 1996 PA 249.
3
See MCL 769.34(2)(a). When the trial court imposes a
mandatory minimum sentence that exceeds the statutory
sentencing guidelines range, it is not departing from the
statutory sentencing guidelines.
Thus, in this case,
although the sentence imposed exceeds the recommended
sentence range, the trial court does not have to articulate
"substantial and compelling" reasons to justify its upward
departure from the guidelines. However, because the trial
court departed downward from the mandatory minimum, it must
articulate such reasons to justify this downward departure
from the mandatory minimum. See former MCL 333.7401(4).
4
These conditions are:
A court may depart from the appropriate
sentence range established under the sentencing
guidelines [MCL 777.1 et seq.] if the court has a
substantial
and
compelling
reason
for
that
departure and states on the record the reasons
for departure.
All of the following apply to a
departure:
3
At
the
sentencing
hearing,
the
defense
requested
a
downward departure from the statutorily mandated ten-year
minimum sentence on the bases that defendant has a limited
criminal
history
(only
one
criminal
conviction
for
misdemeanor retail fraud) for his age of twenty-six5 and
that he has an addiction to cocaine, which was costly and
jeopardized his ability to pay for his home.
In this case,
defense counsel also argued that the police had manipulated
defendant
quantities
“escalated”
subjected.
by
making
of
the
repeated
cocaine
and
sentence
purchases
that,
to
which
by
for
doing
defendant
increasing
so,
would
they
be
In particular, defense counsel argued that the
undercover police officer did not arrest defendant after
either of the initial buys, but went back to him repeatedly
(a) The court shall not use an individual's
gender,
race,
ethnicity,
alienage,
national
origin, legal occupation, lack of employment,
representation
by
appointed
legal
counsel,
representation
by
retained
legal
counsel,
appearance in propria persona, or religion to
depart from the appropriate sentence range.
(b) 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.
[MCL 769.34(3).]
5
There was a dispute concerning whether defendant’s
age was twenty-six or twenty-nine at the time of the
offenses, but resolution of this issue is not necessary to
our analysis.
4
to purchase cocaine.
The defense argued that the officer
even paid defendant at least $500 more than the going rate
to persuade him to sell a larger quantity of crack cocaine
than he otherwise would have sold.
The
prosecutor
countered
enforcement
that
reasons
the
for
officer
the
had
legitimate
law
repeated
purchases.
Those reasons were that many usual sellers of
large amounts only will sell small amounts to new buyers,
and, thus, it is only by working up to larger amounts that
law enforcement can in fact determine what type of seller
the suspect is.
The prosecutor, however, did not address
the defense’s distinct claim that no matter what the police
motivation may have been, the fact that the police paid
defendant $500 over the market price was the sole reason
defendant’s intent to sell changed from selling a lesser
amount to selling a greater amount.
At the conclusion of these arguments, the trial court
found substantial and compelling reasons to depart from the
mandatory minimum sentence on the basis of defendant’s age,
minimal criminal history, and stable employment history of
approximately two years, and, finally, on the basis of the
fact
that,
in
the
“escalated”
and
precluded
treatment earlier.
court’s
view,
from
defendant
getting
had
substance
been
abuse
The trial court did not indicate if the
compelling nature of this escalation factor was the view
that the police conduct itself was somehow offensive or
5
that the police had overcome the will of a small dealer by
the lure of more money and created a greater criminal out
of
someone
criminal.
who
otherwise
would
have
remained
a
lesser
The court then departed downward two years from
the statutorily mandated minimum sentence of ten years and
sentenced
defendant
to
eight
to
twenty
years
of
imprisonment.
The
prosecutor
appealed
and
the
Court
of
Appeals
affirmed, holding that all but one of the stated reasons of
the trial court, defendant’s employment, were substantial
and compelling reasons for a downward departure.6
In a
brief analysis, the Court agreed with the trial court’s
decision to depart downward on the basis of “escalation,”
citing People v Shinholster, 196 Mich App 531; 493 NW2d 502
(1992).
Citing
the
short
treatment
of
this
issue
in
Shinholster, supra at 535, the Court stated that “while not
constituting entrapment, purposeful[] escala[tion] [of] the
defendant’s crime” is a permissible reason for a downward
departure from a mandatory minimum sentence.
Slip op at 2.
The Court of Appeals also noted that in People v Fields,
448
Mich
58;
528
NW2d
176
(1995),
6
“three
of
the
four
Unpublished opinion per curiam, issued October 18,
2002 (Docket No. 238984).
6
justices in the majority agreed that [escalation] was a
Slip op at 2 n 3.7
permissible factor to consider . . . .”
This Court granted the prosecutor leave to appeal.
We
framed the issues on appeal as
whether
“sentencing
substantial
and
departure
and
compelling
from
sentence,
legislative
manipulation”
a
reason
statutorily
whether
a
sentencing
or
“escalation”
justifying
imposed
trial
court
guidelines
a
mandatory
may
is
a
downward
minimum
consider
recommendation
the
when
determining the degree of a departure, which has already
been
determined
to
compelling reasons.
7
be
supported
by
substantial
and
[468 Mich 944 (2003).][8]
Specifically, the Fields Court stated in reference to
Shinholster:
[T]he Court found that the government’s
actions, although not rising to the level of
entrapment, purposefully escalated the crime.
This last factor is of particular importance in
our approval of the resolution reached in
Shinholster.
As
a
mitigating
circumstance
surrounding the offense, it weighs heavily in
favor of a deviation [departure] from the
statutory minimum. [Fields, supra at 79.]
However, the present Court of Appeals panel properly
pointed out that this was merely a plurality decision
without binding effect because the fourth justice signing
the lead opinion, Justice Boyle, authored a concurring
opinion in which she refused to approve of the lead
opinion’s discussion of Shinholster.
Fields, supra at 8182.
8
Both parties agree that, with respect to the latter
issue presented on appeal, the trial court did not
impermissibly consider the legislative guidelines in the
manner described here. Thus, neither party requests relief
7
II. STANDARD OF REVIEW
To decide whether sentencing manipulation, sentencing
entrapment,
or
sentencing
escalation
could
substantial
and
compelling
reason
a
for
ever
be
departure
a
as
a
matter of law, we must interpret the former MCL 333.7401(4)
and the general legislative sentencing guidelines provision
in MCL 769.34(3).
review de novo.
NW2d
657
Statutory interpretation is subject to
People v Phillips, 469 Mich 390, 394; 666
(2003).
particular
factor
A
trial
is
court’s
sufficiently
decision
that
substantial
a
and
compelling for a departure is reviewed for an abuse of
discretion.
Babcock, supra at 269-270.
III. ANALYSIS
In
sentencing
Michigan,
the
guidelines.
Legislature
See
MCL
has
769.31
et
established
seq.
The
underlying approach of the guidelines is that the person to
be
sentenced
is
first
placed
in
a
narrow
sentencing
compartment based on rigid factors surrounding the offense
and offender variable statuses.
Then the individual is
eligible to be removed from such “default” compartments on
the basis of individualized factors.
263-264.
In
cases
involving
See Babcock, supra at
controlled
substances,
on this issue, and the issue is moot. See Crawford v Dep’t
of Civil Service, 466 Mich 250, 261; 645 NW2d 6 (2002)
(“‘An
issue
is
moot
where
circumstances
render
it
impossible for the reviewing court to grant any relief.’”
[Citation omitted.]).
8
however, the Legislature has also established statutorily
mandated minimum sentences.
See the former MCL 333.7401.
Under both provisions, MCL 769.34(3) and the former MCL
333.7401(4), departure from a guidelines range or mandatory
sentence is permissible.
See MCL 769.34(2)(a).
All these
provisions allow a downward departure if the court has a
“substantial
This
Court
and
has
compelling
determined
reason”
that
this
for
the
departure.
statutory
language
means that there must be an “‘objective and verifiable’
reason that ‘keenly or irresistibly grabs our attention’;
is of ‘considerable worth’ in determining [the appropriate
sentence];
and
‘exists
only
in
exceptional
cases.’”9
Babcock, supra at 257-258, quoting Fields, supra at 62, 6768.
9
Although some individualized factors may not, in the
final analysis, constitute a sufficiently "substantial and
compelling" basis for moving a person outside the original
compartment, that should not preclude the trial court from
considering whatever individualized factors that it sees as
relevant.
While it is possible, as the Chief Justice
argues, that some factors can never be "substantial and
compelling" because they can never be objective and
verifiable, we are reluctant to characterize too many
factors in this way because there are simply too many
combinations of factual circumstances for us to feel
confident in forever precluding consideration of some
particular factor.
As a practical matter, it also seems
that the upshot of the Chief Justice's viewpoint is that
everything will have to be litigated twice through the
appellate process—first, to address whether a factor is one
that can ever be "substantial and compelling," and, second,
to consider whether it is "substantial and compelling" in
the circumstances of a specific case.
One of the virtues
of the majority position is that it would sharply reduce
the first of these classes of litigation.
9
It is clear from the legislative sentencing guidelines
that, as discussed in Babcock, supra at 263-264, the focus
of the guidelines is that the court is to consider this
criminal
and
discussing
this
the
roots
offense.
of
As
our
Babcock
nation’s
said
attachment
after
to
concept of proportionality in criminal sentencing:
premise
of
everything
our
else
system
being
of
criminal
equal,
the
justice
more
is
egregious
the
“The
that,
the
offense, and the more recidivist the criminal, the greater
the punishment.”
Id. at 263.
Because of this approach, police misconduct, on which
the
doctrines
of
sentencing
manipulation,
sentencing
entrapment, and sentencing escalation are based,10 is not an
10
The federal definition of sentencing manipulation
can be found in United States v Shephard, 4 F3d 647, 649
(CA 8, 1993).
The United States Court of Appeals for the
Eighth Circuit held that sentencing manipulation occurs
when “the government stretche[s] out the investigation
merely to increase the sentence [a defendant] would
receive.”
Although Michigan has not defined sentencing
manipulation by case law, a majority of state courts
addressing the issue has adopted similar language as the
functioning definition of the term.
See, e.g., People v
Smith, 31 Cal 4th 1207, 1211-1212; 7 Cal Rptr 3d 559; 80
P3d 662 (2003).
Sentencing entrapment has been discussed by our Court
of Appeals in People v Ealy, 222 Mich App 508, 510-511; 564
NW2d 168 (1997).
There, the Court of Appeals referred to
the definition from the United States Court of Appeals for
the Ninth Circuit: “[S]entencing entrapment occurs when a
defendant, although predisposed to commit a minor or lesser
offense, is entrapped in committing a greater offense
subject to greater punishment.”
United States v Staufer,
38 F3d 1103, 1106 (CA 9, 1994) (citations and quotation
marks omitted.
10
appropriate
factor
misconduct,
standing
defendant.
to
However,
consider
alone,
if
at
tells
the
sentencing.
us
nothing
defendant
has
Police
about
an
the
enhanced
intent that was the product of police conduct or any other
precipitating factor, and the enhanced intent can be shown
in
a
manner
sentencing
that
departure
satisfies
as
the
outlined
requirements
for
in
it
Babcock,
a
is
permissible for a court to consider that enhanced intent in
making a departure.11
In the cases discussing sentencing manipulation and
sentencing entrapment, reference is occasionally made to
sentencing “escalation.” No Michigan case has defined this
term, nor has any other court of which we are aware.
However,
we
believe
that
contextually,
sentencing
escalation can mean either sentencing manipulation or
sentencing entrapment, as defined above.
The Chief Justice states that the substantive defense
of entrapment is akin to the sentencing entrapment
doctrine.
This is not the case.
The substantive defense
of entrapment in Michigan is a complete bar to prosecution.
See People v Johnson, 466 Mich 491, 493-494, 498; 647 NW2d
480 (2002).
The doctrine of sentencing entrapment, as
defined in the federal courts, merely allows a downward
departure from a sentence.
Thus, the two concepts have
distinct effects—dismissal of the charges on one hand
versus a (perhaps slightly) lower sentence on the other.
11
A sentencing departure may be from either a sentence
under a sentencing guidelines range or a statutorily
mandated minimum sentence.
Although Babcock is primarily
concerned with the sentencing guidelines, its reasoning is
equally applicable to this statutorily mandated minimum
sentence case.
See id. at 257 (acknowledging applicable
statutorily mandated minimum sentences and citing Fields as
a mandatory minimum case).
11
IV. APPLICATION TO THIS CASE
The trial court in this case concluded, without more,
that
the
defendant
was
“escalated.”
It
is
not
clear
whether the court was thinking about defendant’s intent or
the police conduct.
Thus, resentencing or rearticulation
of the court’s reasons for departure on this factor is
required because, under MCL 769.34(3), “it is not enough
that
there
compelling
exists
reason
some
to
potentially
depart
from
the
substantial
guidelines
and
range.
Rather, this reason must be articulated by the trial court
on
the
record.”
original).
record
a
Babcock,
supra
at
258
(emphasis
in
Moreover, a trial court must articulate on the
substantial
and
compelling
why
its
Id. at 259-260.
particular departure was warranted.
reason
The
trial court is instructed to do this on remand.
Further, we hold that two of the other reasons for
departure
that
the
trial
court
articulated
are
not
substantial and compelling: (1) defendant’s employment for
two years, and (2) that at defendant’s age of twenty-six
years he had only one previous criminal conviction.
With regard to the employment factor, we agree with
the Court of Appeals that “defendant’s employment as a taxi
cab driver . . . for a period of less than two years . . .
does not ‘keenly’ or ‘irresistibly’ grab one’s attention
and,
therefore,
does
not
warrant
12
a
downward
departure.”
Slip op at 2, quoting Fields, supra at 67.
Thus, we affirm
the Court of Appeals on this issue.
Nor does the fact that defendant only had one previous
criminal
conviction
(misdemeanor
retail
fraud)
until
he
reached the age of twenty-six12 “‘keenly’ or ‘irresistibly’
grab[] our attention.”
Fields, supra at 67.
Babcock, supra at 257-258, quoting
The trial judge stated that he was
“impressed” that defendant had made it to the advanced age
of twenty-six with only one previous criminal conviction of
a minor nature.
We are not.
We do not believe that the
age of twenty-six is particularly old to not yet have a
more lengthy criminal record.
Thus, the trial court abused
its discretion in this regard.
Babcock, supra at 269-270.
If
a
trial
court
articulates
multiple
reasons
for
departure, some of which are substantial and compelling and
some
of
which
are
not,
and
the
appellate
court
cannot
determine if the sentence departure is sustainable without
the offending factors, remand is appropriate.
261.13
Id. at 260-
Accordingly, we remand this case for resentencing or
12
Our analysis holds even if defendant were actually
twenty-nine at the time of these offenses. See n 5.
13
The Court of Appeals failed to adhere to this
directive by failing to consider whether the trial court
would have departed and would have departed to the same
degree without the employment factor that the Court of
Appeals found to be insubstantial and noncompelling. Thus,
even if the Court of Appeals properly deemed “escalation”
to be a substantial and compelling factor for departure in
this case, the Court should have considered whether the
trial court’s departure was sustainable without the
13
rearticulation on the record of the trial court’s reasons
for departure.
left
On remand, defendant may argue any factor
unaddressed
by
our
decision
today,
and,
under
the
standards of Babcock, that his intent in committing the
crime was also a proper factor for consideration.
V. THE CHIEF JUSTICE’S OPINION
The Chief Justice is in agreement with our holding
that
police
conduct
alone
cannot
be
considered
at
sentencing, and she is in agreement with the result of
remanding
Chief
for
resentencing
Justice disagrees
in
with
this
part
case.
of
However,
our
the
rationale
and
contends that we are employing the subjective factor of
intent
to
determine
whether
a
sentencing
departure
is
warranted in a particular case.
That
is,
she
believes
that
because
intent
is
subjective, it can never be shown to have been altered in
an
objective
and
verifiable
way.
We
disagree.
For
example, if under surveillance a defendant is importuned to
sell more of an illegal substance than he wished and it is
clear that he would not have sold it absent the buyer’s
pleas to do so, the tape of their conversations could well
establish in an objective and verifiable fashion the change
in the defendant’s intent.
Similarly, if there is evidence
offending factor of employment, and, if the Court could not
do so, it should have remanded the case to the trial court
for resentencing or rearticulation of the reasons for
departure.
14
that
after
a
physical
assault
the
assailant
helped
the
victim by securing medical assistance, this could establish
objectively and verifiably an immediate repudiation of his
previous criminal intent.
trial
court
cannot
This is all to say that the
depart
from
the
mandatory
minimum
sentence or guidelines sentence without basing its decision
on some actual facts external to the representations of the
defendant
himself.
While
objectively
and
verifiably
showing an altered intent will not be easy, nevertheless,
we
do
not
believe
that
the
Legislature’s
statutory
sentencing scheme forecloses outright the consideration of
a defendant’s altered intent at sentencing.
Moreover, we do not consider the intent element of
this crime to be “nullified” by allowing a trial judge to
consider altered intent as a factor for sentence departure,
as the Chief Justice states, post at 5.
The crime of
delivery of a controlled substance of a particular amount
is a general intent crime.
615,
627;
628
NW2d
540
See People v Mass, 464 Mich
(2001).
Thus,
the
only
intent
required to be convicted of the offense is the intent to
deliver a controlled substance.
The accused need not have
the intent to sell a particular amount of the substance.
Rather,
that
sufficient
to
a
particular
convict
the
amount under the statute.
amount
was
accused
of
in
fact
delivery
sold
of
is
that
See id. at 626, citing People v
Quinn, 440 Mich 178, 189; 487 NW2d 194 (1992).
15
Therefore, our approach does not nullify an element of
the offense.
The element of intent to sell drugs is left
untouched; indeed, defendant himself admitted that he sold
drugs.
However, defendant’s intent concerning the amount
of drugs he sold may have been altered in this case when
the
police
repeatedly
returned
to
him
to
buy
ever-
increasing amounts, if those amounts were in fact greater
than what defendant originally intended to sell.
The
Chief
Justice
asserts
that
by
considering
the
defendant’s intent at the time of sentencing we are evading
the Legislature’s determination that the specific intent of
the
individual
conviction.
not
be
Yet,
we
considered
are
defendant’s
not
for
doing
intent
purpose
that.
sentencing.
It seems obvious that the sentencing stage is
trial
court
in
purpose
are
the
the
the
We
of
considering
different from the trial stage.
for
the
of
Indeed, the latitude for
sentencing
to
consider
things
inadmissible at trial can be found in the Legislature’s
requirements of what a presentence report can contain.
presentence
report
prepared
pursuant
to
MCL
771.14
A
can
include hearsay, character evidence, prior convictions, and
alleged criminal activity for which the defendant was not
charged or convicted.
Moreover, the sentencing guidelines
themselves, MCL 769.34(3), use this approach by empowering
the trial court to consider virtually any factor that meets
the substantial and compelling standard.
16
Certainly this
encyclopedic
grant
allows
broader
those
matters
already
it
not,
trial,
than
because
conveying
possessed.
no
if
greater
Such
a
did
the
consideration
authority
construction
before
the
than
of
of
the
statute
that
the
matters
court
at
would
be
previously
statute,
a
construction that makes the statute meaningless, should be
avoided.
See Sweatt v Dep’t of Corrections, 468 Mich 172,
183; 661 NW2d 201 (2003).14
14
The Chief Justice argues that the United States
Supreme Court’s recent decision in Blakely v Washington,
542 US ___; 124 S Ct ___; ___ L Ed 2d ___ (2004), affects
this case. We disagree. Blakely concerned the Washington
state determinate sentencing system, which allowed a trial
judge to elevate the maximum sentence permitted by law on
the basis of facts not found by the jury but by the judge.
Thus, the trial judge in that case was required to set a
fixed sentence imposed within a range determined by
guidelines and was able to increase the maximum sentence on
the basis of judicial fact-finding.
This offended the
Sixth
Amendment,
the
United
States.
Supreme
Court
concluded, because the facts that led to the sentence were
not found by the jury. Blakely, supra at ___.
Michigan, in contrast, has an indeterminate sentencing
system in which the defendant is given a sentence with a
minimum and a maximum.
The maximum is not determined by
the trial judge but is set by law. MCL 769.8. The minimum
is based on guidelines ranges as discussed in the present
case and in Babcock, supra.
The trial judge sets the
minimum but can never exceed the maximum (other than in the
case of a habitual offender, which we need not consider
because Blakely specifically excludes the fact of a
previous conviction from its holding).
Accordingly, the
Michigan system is unaffected by the holding in Blakely
that was designed to protect the defendant from a higher
sentence based on facts not found by the jury in violation
of the Sixth Amendment.
Justice O’Connor in her dissent in Blakely raised a
concern similar to the one the Chief Justice now raises,
but the majority in that case made clear that the decision
17
VI. CONCLUSION
In light of the applicable sentencing statutes and our
recent decision in Babcock, we vacate the decision of the
Court of Appeals in part and remand this case to the trial
court
for
resentencing
or
rearticulation
of
the
court’s
reasons for departure, consistent with this opinion.
Clifford W. Taylor
Stephen J. Markman
did not affect indeterminate sentencing systems.
stated:
The Court
JUSTICE
O'CONNOR
argues
that,
because
determinate sentencing schemes involving judicial
factfinding entail less judicial discretion than
indeterminate schemes, the constitutionality of
the latter implies the constitutionality of the
former. Post, at 1-10. This argument is flawed
on a number of levels.
First, the Sixth
Amendment by its terms is not a limitation on
judicial power, but a reservation of jury power.
It limits judicial power only to the extent that
the claimed judicial power infringes on the
province of the jury.
Indeterminate sentencing
does
not
do
so.
It
increases
judicial
discretion, to be sure, but not at the expense of
the jury's traditional function of finding the
facts essential to lawful imposition of the
penalty. Of course indeterminate schemes involve
judicial factfinding, in that a judge (like a
parole board) may implicitly rule on those facts
he deems important to the exercise of his
sentencing discretion.
But the facts do not
pertain to whether the defendant has a legal
right to a lesser sentence—and that makes all the
difference insofar as judicial impingement upon
the traditional role of the jury is concerned.
[Blakely, supra at ___ (emphasis added).]
18
S T A T E
M I C H I G A N
O F
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 122696
DEON LAMONT CLAYPOOL,
Defendant-Appellee.
_______________________________
CORRIGAN, C.J. (concurring in part and dissenting in part).
Although
I
agree
with
the
result
of
decision, I cannot agree with its analysis.
departure
that
endorses
such
the
defendant’s
as
an
inherently
intent
the
majority’s
Any sentencing
subjective
cannot
factor
satisfy
our
Legislature’s requirement that any sentencing departures be
based on objective and verifiable factors.
I continue to
believe that sentencing escalation or entrapment is merely
the entrapment defense asserted at sentencing rather than
before trial and that these related concepts have no valid
legal foundation.
Further, I agree with the majority that
the recent United States Supreme Court decision in Blakely
v Washington, 542 US ___ ; ___ 124 S Ct ___ ; ___ L Ed 2d
___ (2004), does not invalidate Michigan’s indeterminate
sentencing scheme as a whole.
Nonetheless, the majority’s
sweeping
language
regarding
judicial
powers
to
effect
departures (not limited to downward departures) will invite
challenges
to
Michigan’s
scheme;
it
appears
to
conflict
with principles set out in Blakely.
I.
The
concepts
BACKGROUND
of
“sentencing
entrapment”
or
“escalation” originated in the federal circuit courts of
appeals as arguments in support of a departure from the
federal
sentencing
guidelines.
See
United
States
v
Lenfesty, 923 F2d 1293, 1300 (CA 8, 1991) (“We are not
prepared to say there is no such animal as ‘sentencing
entrapment.’
Where outrageous official conduct overcomes
the will of an individual predisposed only to dealing in
small
quantities,
this
contention
might
bear
fruit.”);
United States v Staufer, 38 F3d 1103, 1108 (CA 9, 1994)
(“We
are
legally
persuaded
relied
upon
that
‘sentencing
to
depart
entrapment
under
the
may
be
Sentencing
Guidelines,’ . . . [citing United States v Barth, 990 F2d
422, 424 (CA 8, 1993)].”).
Sentencing entrapment “occurs
when ‘a defendant, although predisposed to commit a minor
or lesser offense, is entrapped in committing a greater
offense subject to greater punishment.’”
1106,
citing
United
States
v
(CA 9, 1991).
2
Stuart,
Staufer, supra at
923
F2d
607,
614
In Michigan, the concept of sentencing entrapment or
escalation was first approved in People v Shinholster, 196
Mich App 531; 493 NW2d 502 (1992).
Court
of
Appeals
sentencing
minimum
approved
“escalation”
sentence,
in
of
In Shinholster, the
the
consideration
departing
holding
that
from
among
a
those
of
mandatory
factors
authorizing a departure was “that the government’s actions—
although not rising to the level of entrapment—purposefully
escalated the crime.”
The
theory
of
Id. at 535.
“escalation”
was
again
discussed
People v Ealy, 222 Mich App 508; 564 NW2d 168 (1997).
Ealy,
the
sentencing
defendant
entrapment
argued
by
that
“the
wrongfully
police
inducing
in
In
committed
him
to
participate in transactions involving escalating amounts of
cocaine and exposing him to greater penalties.”
510.
Id. at
The Court in Ealy applied the current objective test
for entrapment to the “escalation” claim:
In
Michigan,
entrapment
is
analyzed
according to a two-pronged test, with entrapment
existing if either prong is met. The court must
consider whether (1) the police engaged in
impermissible conduct that would induce a lawabiding person to commit a crime in similar
circumstances, or (2) the police engaged in
conduct so reprehensible that it cannot be
tolerated. [Id.]
The Court in Ealy also quoted the federal circuit test for
sentencing entrapment and held that the facts in the case
3
did
not
support
application
of
the
theory
because
the
police did nothing more than present defendant with the
opportunity to commit the offenses at issue.
511.
Id. at 510-
The Court stated that “the delay in [the defendant’s]
arrest was justified on the ground that an earlier arrest
would have impaired the ability of the police to conduct an
ongoing undercover narcotics investigation.”
The
only
precedent
from
this
Id. at 511.
Court
involving
the
concept of sentencing escalation is People v Fields, 448
Mich 58, 79; 528 NW2d 176 (1995), in which three justices
approved of the adoption in Shinholster of the concept of
“escalation” as a mitigating factor surrounding an offense.1
Thus,
the
entrapment
defense
and
the
concept
of
sentencing entrapment or escalation are two sides of the
same coin.
absolve
of
Legislature
The effect of the entrapment defense is to
responsibility
has
deemed
those
criminal,
whose
and
the
conduct
effect
the
of
sentencing entrapment or escalation is to partially absolve
of responsibility those whose conduct the Legislature has
1
Justice BOYLE concurred, but declined to join in the
approval of Shinholster, stating that it was
dicta with a vengeance.
The question whether
defendant’s
successive
criminal
acts
not
involving police entrapment can amount to a
mitigating circumstance is far too significant to
be resolved in the context of a record that does
not present that question. [Id. at 82 n 1.]
4
determined
warrants
a
specific
minimum
penalty.
The
similarity of the two concepts can be seen in Ealy, in
which the Court of Appeals applied the general entrapment
test
in
evaluating
the
defendant’s
claim
of
sentencing
escalation.
Indeed, sentencing entrapment or escalation is often
used to effectively nullify an element of a crime for which
the
defendant
was
convicted
by
purporting
eliminate the defendant’s intent.
than
the
trial.
application
Evidence
of
the
regarding
lessen
or
This is no different
entrapment
the
to
nature
defense
and
before
extent
of
defendant’s intent is only a proper subject for the casein-chief, when determining whether the elements of a crime
have been established.
Reviewing a defendant’s subjective
intent at sentencing can amount to a nullification of a
conviction, or at least an element of a crime, without
procedural protections.
In cases in which only a general intent is required,
the Legislature has already determined that the specific
intent of the individual defendant is irrelevant for the
purpose of a conviction.
If the intent is irrelevant at
the initial stage for the purpose of the conviction, it
cannot
be
used
at
sentencing
Legislature’s decision.
as
an
end-run
around
the
Here, the Legislature determined
5
that those who intend to distribute drugs assume the risk
of punishment according to the amount distributed.
It is
not for this Court to make a different policy decision upon
sentencing.
II.
THE VALIDITY
OF THE
ENTRAPMENT DEFENSE
For the reasons stated in my dissenting statement in
People v Maffett, 464 Mich 878 (2001), I believe that the
judicially crafted entrapment defense—in all its forms—is
without constitutional foundation.
engaged
criminal
in
conduct
offense,
constituting
as
defined
by
Once a “defendant has
all
the
the
elements
of
Legislature,”
a
this
Court does not then have the authority to conclude that the
Legislature did not intend that the defendant be punished
or that the prosecution should be barred as a matter of
policy.
Id. at 895.
principles
of
To do so runs afoul of settled
statutory
interpretation
principles of separation of powers.
as
well
as
Id. at 895-896.
Sentencing entrapment or escalation is no different.
Once
a
defendant
has
committed
Legislature
has
determined
punishment,
this
Court
an
requires
lacks
any
offense
a
that
certain
authority
to
the
minimum
determine
that the Legislature did not really “mean” to apply that
punishment
to
the
defendant
or
that
the
legislatively
mandated punishment should not be applied as a matter of
6
policy.
“The
regulation
of
law
enforcement
practices
involved in the investigation and detection of crime falls
within the police power of the legislative branch,” not
within the implied judicial powers or rulemaking authority
of this Court under Const 1963, art 6, §§ 1, 5.
897-898.
Just
as
“[t]he
assignment
of
Id. at
criminal
responsibility is undeniably a matter of substantive law”
reserved
allocation
for
the
of
Legislature,
criminal
id.
punishment.
at
898,
For
so
this
is
the
Court
to
refuse to apply a legislatively mandated minimum sentence
would
impermissibly
usurp
both
the
legislative
and
executive functions, in violation of Const 1963, art 3,
§ 2.
Both the general entrapment defense and the concept of
sentencing
entrapment
or
escalation
require
a
court
to
“disregard the law” and bar prosecution or the imposition
of punishment if the court forms the opinion that the crime
has been instigated or escalated by government officials.
See id. at 898.
The judicial branch lacks the authority to
disregard the law or supervise law enforcement procedure.
Therefore, the general entrapment defense and the concept
7
of sentencing entrapment and escalation are without valid
legal foundations and should be abrogated.2
III. SENTENCING ENTRAPMENT OR ESCALATION AND OUR LEGISLATIVELY
MANDATED SENTENCING SCHEME
As this Court noted in People v Babcock, 469 Mich 247,
255-256; 666 NW2d 231 (2003), the promulgation of statutory
sentencing guidelines has changed the legal landscape:
Under the statutory sentencing guidelines, a
departure is only allowed by the Legislature if
there is a “substantial and compelling reason”
for doing so.
MCL 769.34(3). Accordingly, since
the
enactment
of
the
statutory
sentencing
guidelines, the role of the trial court has
necessarily been altered. Before the enactment of
these guidelines, the trial court was required to
choose a sentence within the statutory minimum
and maximum that was “proportionate to the
seriousness of the circumstances surrounding the
offense and the offender.”
[People v Milbourn,
435 Mich 630, 636; 461 NW2d 1 (1990)]. Following
the enactment of these guidelines, the trial
court is required to choose a sentence within the
guidelines range, unless there is a “substantial
and compelling” reason for departing from this
range. Consequently . . . the role of the Court
of Appeals has also changed from reviewing the
trial
court’s
sentencing
decision
for
“proportionality” to reviewing the trial court's
2
The majority mischaracterizes my position as agreeing
with the notion that “police conduct alone cannot be
considered at sentencing . . . .”
Ante at 15.
My
position, however, is broader than that.
As previously
explained, I disagree with the concept of sentencing
entrapment or escalation altogether regardless whether such
“entrapment” or “escalation” resulted from police conduct
alone or police conduct and some other factor.
It is the
very notion of sentencing entrapment and escalation with
which I disagree and which is without any valid legal
foundation, not the fact that such “entrapment” or
“escalation” ultimately stems from police conduct.
8
sentencing decision to determine, first, whether
it is within the appropriate guidelines range
and, second, if it is not, whether the trial
court
has
articulated
a
“substantial
and
compelling” reason for departing from such range.
For a reason to be “substantial and compelling,” it must be
“objective and verifiable.”
Although
legislative
the
Id. at 257-258.
majority
attempts
requirements
by
to
conform
requiring
to
objective
the
and
verifiable proof that police conduct (or any other general
cause) influenced the defendant’s intent, the fact remains
that the departure is, in fact, based on the defendant’s
intent, which is an inherently subjective factor.
I cannot
fathom
ever
how
a
person’s
subjective
intent
can
be
considered objective or verifiable.
“Intent” is defined as “the state of a person’s mind
that
directs
Random
House
his
or
her
Webster’s
actions
College
toward
an
Dictionary
objective.”
(1997).
The
state of a defendant’s mind is an inherently subjective
factor and cannot suffice as an objective and verifiable
factor for a sentencing departure.
motivation
“objectively”
cannot
the
state of his mind.
satisfy
defendant
Subjective intent or
Babcock,
presents
his
no
matter
version
of
how
the
Therefore, the concept of sentencing
9
entrapment or escalation is at odds with our legislatively
mandated sentencing scheme.3
In addition, although I agree with the majority that
Blakely, supra, does not invalidate our sentencing scheme,
I question the majority’s sweeping statements in section V
of its opinion responding to my dissent.
The majority
states that the Legislature has provided sentencing courts
latitude to consider factors inadmissible at trial.
at 17.
evident
Ante
The majority also opines that such latitude is
from
the
Legislature’s
directive
regarding
what
information may be included in a presentence report.
The
majority continues:
A presentence report prepared pursuant to
MCL
771.14
can
include
hearsay,
character
evidence, prior convictions, and alleged criminal
activity for which the defendant was not charged
or
convicted.
Moreover,
the
sentencing
guidelines themselves, MCL 769.34(3), use this
approach by empowering the trial court to
consider virtually any factor that meets the
substantial and compelling standard.
Certainly
this encyclopedic grant allows the consideration
of matters broader than those matters already
before the court at trial, because if it did not,
3
To the extent that the majority is actually talking
about a defendant’s motive, and not intent, there may be
situations in which objective and verifiable evidence of
motive will keenly and irresistibly grab the court’s
attention and justify a sentencing departure.
Under the
facts of this case, however, I question how defendant’s
subjective decision to sell drugs of varying amounts from
his employer’s vehicle on company time can be considered an
objective and verifiable factor that keenly or irresistibly
grabs the court’s interest.
10
the statute would be conveying no greater
authority than that previously possessed.
[Ante
at 17-18.]
Although
I
agree
that
Blakely
does
not
implicate
our
sentencing scheme, the full scope of the Blakely decision
has yet to be determined.
it
appears
likely
that
Given the response to Blakely,
the
issue
of
mandatory
minimum
sentences will need to be settled.
See Laurie P. Cohen and
Gary
Unleashes
Fields,
High-Court
Ruling
Chaos
Sentencing, The Wall Street Journal, July 14, 2004.
Over
Given
the lack of any definitive statement by the United States
Supreme
Court
regarding
mandatory
believe
that
sweeping
statements
authority,
borrow
like
those
trouble.
quoted
The
minimum
of
above,
majority’s
may
broad
sentences,
broad
serve
I
judicial
only
to
assertions
of
judicial power are not necessary to the disposition of this
case and may unnecessarily subject our sentencing scheme to
future criticism.
In short, although Michigan’s sentencing
scheme is not currently affected by Blakely, I believe the
wisest course is to act circumspectly to avoid making our
scheme
vulnerable
when
the
time
inevitably
comes
to
evaluate mandatory minimum sentencing schemes.
IV.
APPLICATION
MCL 333.7401(2)(a)(iii), at the time of this action,
provided for a mandatory minimum sentence of ten years for
11
this sort of drug offense.
that
the
court
could
Former MCL 333.7401(4) provided
depart
from
the
minimum
term
of
imprisonment “if the court finds on the record that there
are substantial and compelling reasons to do so.”
Again,
we noted in Babcock that “substantial and compelling” was a
legal term of art that required, among other things, that
the reason be objective and verifiable.4
The
here
finding
was
assessment
based
of
of
sentencing
solely
the
on
the
defendant’s
entrapment
trial
or
escalation
court’s
subjective
subjective
intent.
This
finding cannot be considered objective and verifiable, and
4
MCL 769.34(2)(a) provides, in relevant part:
If a statute mandates a minimum sentence for
an individual sentenced to the jurisdiction of
the department of corrections, the court shall
impose sentence in accordance with that statute.
Imposing a mandatory minimum sentence is not a
departure under this section.
If a statute
mandates a minimum sentence for an individual
sentenced to the jurisdiction of the department
of corrections and the statute authorizes the
sentencing judge to depart from that minimum
sentence, imposing a sentence that exceeds the
recommended sentence range but is less than the
mandatory minimum sentence is not a departure
under this section. [Emphasis added.]
Although the sentence after departure here did exceed the
recommended sentencing guidelines range, it is irrelevant
that the sentence would not be considered a departure under
MCL 769.34 because former MCL 333.7401(4) imposed a
separate requirement that the departure be supported by
substantial and compelling reasons.
12
so the departure from the mandatory minimum sentence cannot
be considered valid under MCL 333.7401(4).
Therefore, I
agree that resentencing is required.
V.
The
judicially
CONCLUSION
created
entrapment
defense
and
the
concepts of sentencing entrapment and escalation have no
valid legal foundation.
intent
at
sentencing
Reviewing a defendant’s subjective
amounts
to
a
nullification
of
a
conviction, or possibly of an element of a crime, without
procedural protections.
Further, any departure based on
sentencing entrapment or escalation is necessarily based on
the
defendant’s
subjective
intent
and,
considered objective and verifiable.
thus,
cannot
be
Therefore, departures
based on the concept of sentencing entrapment or escalation
violate
the
statutory
requirements
for
a
departure.
Maura D. Corrigan
13
sentencing
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 122696
DEON LAMONT CLAYPOOL,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I
agree
sentencing
with
judge
the
may
majority’s
consider
conclusion
whatever
factors the judge believes are relevant.
that
a
individualized
I also agree with
the majority’s determination that Blakely v Washington, 542
US __; 124 S Ct __; __ L Ed 2d __ (2004), does not appear
to
affect
scoring
systems
that
establish
minimum sentences, such as we have in Michigan.
recommended
Moreover,
I tend to agree with the lead opinion’s ultimate rationale.
The
lead
opinion
notes
that
sentencing
entrapment
sentencing manipulation are distinct theories.
and
However,
the lead opinion then concludes that the same test is to be
employed in cases of sentencing entrapment and in cases of
sentencing manipulation.
I must respectfully disagree with
such an approach.
In United States v Lora, 129 F Supp 2d 77, 89-90 (D
Mass, 2001), the court aptly noted:
Some
courts
and
scholars,
however,
distinguish
between
sentencing
factor
manipulation and sentencing entrapment. . . .
Under
this
approach,
sentencing
factor
manipulation
may
exist
regardless
of
the
defendant's predisposition. The doctrine focuses
exclusively on the motives of law enforcement
authorities in manipulating the sentence, as when
an agent delays an arrest with the purpose of
increasing the defendant's sentence. . . .
One
commentator illustrated the distinction:
“An example of ‘sentencing entrapment’ would
be when a government agent offers a kilogram of
cocaine to a person who has previously purchased
only gram or ‘user’ amounts, for the purpose of
increasing the amount of drugs for which he
ultimately will be held accountable. On the other
hand, an example of ‘sentencing manipulation’
would be when an undercover agent continues to
engage in undercover drug purchases with a
defendant,
thereby
stretching
out
an
investigation which could have concluded earlier,
for
the
sole
purpose
of
increasing
the
defendant's sentencing exposure, or when an
undercover agent insists that a defendant ‘cook’
powder cocaine into ‘crack,’ well-knowing that
sentences for dealing in crack are significantly
higher than sentences for dealing in powder
cocaine.”
Amy Levin Weil, “In Partial Defense of Sentencing
Entrapment,” 7 Fed. Sentencing Rep. 172, 174
(1995) (footnotes omitted).
In any event, the
sentencing entrapment and manipulation doctrines
both require a finding of improper motive on the
part of the government before a departure is
warranted.
2
Rather
than
vacating
and
remanding,
I
would
affirm the decision of the Court of Appeals.
simply
The trial
court stated on the record that the downward departure was
based
on
substantial
and
objective and verifiable.
compelling
reasons
that
were
On appeal, the Court of Appeals
affirmed and specifically found that the stated reason for
departure
at
issue
here,
sentencing
manipulation
(also
referred to as sentencing escalation), was substantial and
compelling, as well as objective and verifiable.
The panel
noted, “Thus, it objectively appears that the police made
additional
purchases
that
the
defendant
was
convicted.
This fact is verified in the PSIR . . . .”
Unpublished
opinion
per
238984),
curiam,
p
3.
of
escalating
of
No.
offenses
in
seriousness
(Docket
the
resulted
which
issued
October
Because
I
18,
2002
believe
such
determinations to have been proper and, thus, the test set
forth
in
People
v
Babcock,
469
Mich
247;
666
NW2d
231
(2003), was met, I would affirm the decision of the Court
of Appeals.
Michael F. Cavanagh
3
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 122696
DEON LAMONT CLAYPOOL,
Defendant-Appellee.
_______________________________
WEAVER, J. (dissenting in part and concurring in part).
I respectfully dissent from the majority’s decision to
vacate the Court of Appeals decision and remand this case
for resentencing.
Consistent with my opinions in People v
Daniel1 and People v Babcock,2 I would consider all relevant
factors, including police conduct, when determining whether
there is a substantial and compelling reason to depart from
the sentencing guidelines ranges, and I would not limit how
the factor of police conduct may be considered.3
1
People v Daniel, 462 Mich 1, 22-23; 609 NW2d 557
(2000)(Weaver, C.J., dissenting).
2
People v Babcock, 469 Mich 247, 280-284; 666 NW2d 231
(2003)(Weaver, J., dissenting in part and concurring in
part).
3
The majority holds that while police misconduct may
not be considered, an “enhanced intent” that results from
Applying the reasoning of my opinion in Babcock to the
facts of this case, I would conclude that the trial court
did not abuse its discretion in departing downward from the
sentencing
guidelines
range
because
the
trial
court’s
sentence in this case was within the principled range of
outcomes.4
Therefore, I would affirm the Court of Appeals
decision affirming defendant’s sentence.
But I concur in the majority’s conclusion that the
United
States
Washington,
542
Supreme
US
Court’s
___;
124
S
decision
Ct
___;
in
___L
Blakely
Ed
2d
v
___
(2004), which considered whether facts that increase the
penalty for a crime beyond the prescribed statutory maximum
sentence must be submitted to the jury, does not affect
Michigan’s
scoring
system,
which
establishes
the
recommended minimum sentence.
Elizabeth A. Weaver
police misconduct may be considered when determining
whether to depart from the guidelines ranges.
Ante at 1,
11-12.
The majority opinion does not explain how
sentencing courts are to distinguish practically between
police misconduct, which is an impermissible consideration
under its analysis, and the “enhanced intent” that results
from
police
misconduct,
which
is
a
permissible
consideration under its analysis.
4
Babcock, supra at 282-283.
2
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 122696
DEON LAMONT CLAYPOOL,
Defendant-Appellee.
_______________________________
YOUNG, J. (concurring in part and dissenting in part).
I concur with the majority opinion to the extent that
it purports to disallow consideration of the concepts of
sentencing
entrapment,
sentencing
manipulation,
and
sentencing escalation.
However, I believe that the core
tenet
majority——that
espoused
called
by
“altered
the
intent”
may
a
constitute
defendant’s
an
objective
soand
verifiable factor that may be considered in departing from
a
statutorily
contrary
to
mandated
the
minimum
principles
this
sentence——is
Court
so
directly
recently
reaffirmed in People v Babcock, 469 Mich 247; 666 NW2d 231
(2003).
Accordingly, although I concur in the majority’s
decision to remand for resentencing, I dissent from its
analysis.1
I.
CONSIDERATION
OF
POLICE CONDUCT
Although the majority states that police misconduct,
standing alone, is not an appropriate factor to consider at
sentencing,
police
it
conduct
nevertheless
that
can
allows
be
consideration
“objectively
and
shown” to have “altered a defendant’s intent.”
2.
I
believe
holding
and
substantive
that
that
this
it
defense
is
an
internally
constitutes
of
entrapment,
of
any
verifiably
Ante at 1-
inconsistent
an
expansion
a
judicially
of
the
created
defense that I believe is violative of the doctrine of
separation of powers and therefore invalid for the reasons
expressed
by
Chief
Justice
CORRIGAN
in
her
dissenting
statement in People v Maffett2 and her opinion dissenting in
part in the instant case.
holding
permit
the
Not only does the majority’s
inappropriate
extrapolation
of
the
substantive entrapment defense into the sentencing context,
it broadens the defense in that (1) it permits (indeed, it
1
In addition, I concur in footnote 14 of the
majority’s opinion, ante at 18, and agree that Michigan’s
sentencing system is unaffected by the holding in Blakely v
Washington, 542 US ___; 124 S Ct ___; ___ L Ed 2d ___
(2004).
2
464 Mich 878 (2001).
2
requires)
application
of
a
subjective,
rather
than
objective, assessment of the defendant’s response to police
conduct, and (2) it does not even require impermissible or
reprehensible
police
conduct,
the
traditional entrapment defense.3
hallmark
of
the
Moreover, I agree with
Chief Justice CORRIGAN that the rejection of a legislatively
mandated sentence requirement based on a court’s ad hoc
assessment
of
police
conduct
impermissibly
legislative and executive authority.
II.
Under
INTENT
former
MCL
IS
NOT
AN
usurps
both
See post at 6-8.
“OBJECTIVE” FACTOR
333.7401(4),
a
departure
from
the
statutorily mandated minimum ten-year sentence applicable
to defendant is permitted if the court has a “substantial
and
compelling
reason”
for
the
departure.
In
Babcock,
supra, this Court adopted and reaffirmed, as an animating
construction of the legislative sentencing guidelines, the
People v Fields4 definition of “substantial and compelling
reason”: a reason that is both objective and verifiable and
that
“‘keenly’”
or
“‘irresistibly’”
3
grabs
the
court’s
Michigan’s objective entrapment defense requires a
showing that either (1) the police engaged in impermissible
conduct that would induce a law-abiding person to commit a
crime in similar circumstances or (2) the police engaged in
conduct so reprehensible that it cannot be tolerated.
People v Johnson, 466 Mich 491, 498; 647 NW2d 480 (2002).
4
448 Mich 58; 528 NW2d 176 (1995).
3
attention.5
Babcock,
supra
at
257-258,
quoting
Fields,
supra at 67.
The
majority
opines
that
a
defendant’s
“enhanced
intent,” if it “can be shown in a manner that satisfies the
requirements
for
a
sentencing
departure
as
outlined
in
Babcock,” is a factor that may properly be considered in
departing from a mandatory minimum sentence.
majority
does
not
dispute
that
intent
Although the
is
inherently
subjective, it nevertheless holds that intent, if “shown”
or
“established”
in
“an
objective
and
verifiable
way,”
becomes a proper factor for consideration under Babcock.
Ante
at
12,
hypothetical
defendant’s
15-16.
Thus,
examples
own
in
the
which
majority
evidence,
representations
as
to
presents
other
his
than
intent,
two
the
is
presented to support the defendant’s claim that his intent
was altered before or after he committed a crime; under
such
circumstances,
the
majority
holds,
the
defendant’s
intent has been objectively and verifiably shown.6
Id.
5
In turn, the Fields Court adopted the test for
“substantial and compelling” as announced by our Court of
Appeals in People v Hill, 192 Mich App 102; 480 NW2d 913
(1991). See Fields, supra at 62.
6
The examples proffered by the majority aptly
illustrate the inconsistency of its holding. Consider the
first example, in which there is evidence that a defendant
sells more of an illegal substance than he was initially
prone to sell because the buyer has pleaded for more. Ante
4
The primary flaw in the majority’s analysis, in my
view,
is
that
it
conflates
the
separate
Babcock
requirements of objectivity and verifiability into a single
evidentiary requirement.
factor
itself
be
majority,
however,
objective
and
both
takes
verifiable
Again, Babcock requires that the
objective
the
view
showing
factor, Babcock is satisfied.
and
verifiable.
that
of
the
if
there
existence
The
is
of
an
a
I disagree.
at 15.
It is entirely beyond me how such evidence
demonstrates that the defendant’s intent was “altered” by
external factors.
Rather, the defendant, at the time he
committed the offense, intended to sell whatever amount of
the illegal substance he, in fact, sold; the buyer’s pleas
simply provided a motivation for the defendant’s decision
to commit the crime of selling a larger amount. Under the
majority’s
view,
the
defendant’s
presentation
of
a
videotape depicting him reluctantly pulling the trigger of
a gun and killing a victim in response to an accomplice’s
urgings would presumably support a downward departure from
a mandatory sentence or from the sentencing guidelines
range. I cannot subscribe to such an extreme view.
In the second example proffered by the majority there
is evidence that the defendant, after assaulting the
victim, secures medical assistance. Ante at 16. I am at a
loss to understand how this evidence of the defendant’s
post-crime
behavior demonstrates that his intent in
committing the crime was altered.
Again, as in the prior
example, the defendant intended to do precisely what he did
at the time he committed the crime.
Rather, this example
seems to approve of sentencing consideration of remorse, a
factor that the Fields Court specifically held lacked
objectivity. Fields, supra at 80. Moreover, the fact that
a defendant dials 911 after slashing a victim’s throat
would certainly not “keenly” or “irresistibly” grab this
writer’s attention.
5
A
subjective
factor
such
as
intent
is
not
somehow
transformed into an objective factor simply because it can
be supported by evidence other than the defendant’s own
representations.
Although the existence of such external
evidence might well render a particular factor verifiable,
an otherwise subjective factor will remain subjective, even
in the face of a mountain of proof.7
The adoption of the
Fields/Babcock test was intended to preclude consideration
of such subjective factors.
majority’s
sub
silentio
I cannot subscribe to the
repudiation
of
the
Babcock
requirement of objectivity.
Accordingly,
court
from
on
remand,
considering
as
I
a
would
proper
preclude
the
sentencing
trial
factor
defendant’s intent.
Robert P. Young, Jr.
Maura D. Corrigan
7
For example, much like intent, a defendant’s remorse
is a subjective state-of-mind factor that may not be
properly considered at sentencing.
See Fields, supra at
80. Remorse would not be somehow transformed into a proper
sentencing factor by virtue of tangible or otherwise
external evidence, such as testimony that the defendant
cries himself to sleep every night or that he wrote
apologetic letters to the victim’s family. In such a case,
the remorse would be verifiable, but it would not be
objective.
6
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 122696
DEON LAMONT CLAYPOOL,
Defendant-Appellee.
_______________________________
KELLY, J. (concurring in part and dissenting in part).
I agree with Justice Cavanagh's concurrence. However,
I do not believe the Court should take a position on the
application
of
Blakely
v
Washington1
to
Michigan's
sentencing scheme. The issue was neither raised nor briefed
in this case. It is a jurisprudentially significant issue.
I
would
not
decide
it
without
full
briefing
and
argument.
Marilyn Kelly
1
542 US ___; 124 S Ct ___; ___ L Ed 2d ___ (2004).
oral
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
