People v. Michielutti
People v. Michielutti
Opinion of the Court
Defendant pleaded guilty of possession with intent to deliver 50 grams or more, but less than 225 grams, of cocaine, the former MCL 333.7401(2)(a)(iii), and was sentenced to serve ten to twenty years’ imprisonment. Defendant appeals by leave granted. We vacate and remand for resentencing. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Defendant first argues that he should be resentenced so that he may benefit from retroactive application of amendments of MCL 333.7401, which eliminated the
Defendant alternatively argues that the trial court abused its discretion in refusing to find substantial and compelling reasons to impose a minimum sentence below the ten years that the statute required when the court imposed sentence. We agree that resentencing is required.
At the time of defendant’s sentencing, MCL 333.7401(4) provided that “[t]he court may depart from the minimum term of imprisonment... if the court finds on the record that there are substantial and compelling reasons to do so.” Substantial and compelling reasons for downward departures for the purposes of this statute included “only those factors that are objective and verifiable . . . .” People v Fields, 448 Mich 58, 62; 528 NW2d 176 (1995).
We review for clear error a sentencing court’s determination whether a particular factor exists. We review de novo whether a factor is objective and verifiable and review for abuse of discretion a sentencing court’s determination that qualifying factors constitute substantial and compelling reasons to depart from the guidelines range. Id. at 77-78.
At sentencing, defendant raised the issues of his age, work history, criminal history, and family support. Defendant also specifically asked the court to depart downward from the mandatory sentence because he
The statute requires a mandatory minimum sentence of ten years ... unless there are substantial and compelling reasons to depart.... In order for there to be a departure from the mandatory minimum it’s incumbent upon the defendant to make a showing of those substantial and compelling reasons.
Historically those reasons having [sic] included cooperation with law enforcement in order to reduce the criminal cartel in the delivery of narcotics. And historically from other similarly situated cases the only substantial and compelling reason that has been accepted has been the objective providing of assistance to law enforcement such that the criminal enterprise is diminished.
That showing has not been made here. While I’m sure that [defendant] in his heart would have liked to have cooperated, or rendered other assistance, so as to be able to make a showing of substantial and compelling reasons for departure, he found that he was not capable of doing that....
The legislature has effectuated such a severe penalty because of the poison that drugs does [sic] to the community. ...
I have read the letters .... And while I’m sure there are aspects of your personality and being that are worthwhile ... to the community, you did not traffic on your strengths but instead traffic [sic] upon your greed because the enterprise was for money alone. . . . And therefore the Court fails to find substantial and compelling reasons to depart from the mandatory minimum.
Defendant asserts that the trial court erred in concluding that providing assistance to law enforcement was the only basis on which a downward departure may rest. He protests that the trial court failed to recognize
Here, the trial court acknowledged only the lack of success in assisting law enforcement, to the exclusion of four factors that could legitimately have warranted a downward departure. The trial court simply failed to address the other factors. Accordingly, we vacate defendant’s sentence and remand this case to the trial court to consider on the record the question of a downward departure, addressing all the applicable factors.
Finally, as noted above, several recent opinions have held that the new sentencing strictures in MCL 333.7401 do not apply retrospectively. Thomas, supra; People v Doxey, 263 Mich App 115, 123; 687 NW2d 360 (2004). While we agree that these opinions properly reflect the Legislature’s intent on prospective application, neither the revised statutes nor these decisions limit the sentencing court’s ability, in its discretion, to deviate from the mandatory minimum on the basis of
While we are bound by precedent to stop short of adopting this approach, we acknowledge that the fundamental tenets in Schulz remain good law: The Legislature intentionally granted sentencing courts greater discretion to fashion an appropriate sentence for these violations, and in light of a dramatic and ameliorative change in legislative policy, courts should determine whether an offender’s case merits application of the Legislature’s newfound leniency. Id. Therefore, the new, ameliorative legislative policy qualifies as an objective and verifiable reason to depart from the former mandatory sentence.
If a court finds that an offender has objective and verifiable qualities that especially accord with the new legislative policy, the court, in its discretion, may consider all these reasons together and conclude that they
Sentence vacated and case remanded for resentenc-ing. We do not retain jurisdiction.
We note that we are not limited by the appellate confinements in MCL 769.34(10), because the mandatory minimum sentence imposed actually exceeds the guidelines in this case by several years.
This is especially true in light of the fact that this case will be remanded to the original sentencing judge’s successor.
Concurring in Part
(concurring in part and dissenting in part). In addressing the issue raised and decided below and now raised on appeal by defendant, the majority correctly concludes that the trial court erred in failing to address several of the objective and verifiable factors for a downward sentence departure presented to it by defendant. Those factors are defendant’s age, lack of prior record, work history, and family support. See People v Fields, 448 Mich 58, 77; 528 NW2d 176 (1995). Therefore, I concur in the need to remand this case for resentencing so that the trial court can address those factors raised by defendant.
However, I part company with my colleagues in their sua sponte initiative to create new standards for use by trial courts when considering sentencing departures. With all due respect to the majority, there are significant procedural reasons why their discussion on this issue is premature.
As any casual reader of the Michigan Appeals Reports will recognize, we quite frequently inform parties that we will not address an issue not raised or decided by the trial court, on the basis that it is not properly preserved. Adam v Sylvan Glynn Golf Course, 197 Mich
Here, defendant did not argue to the trial court that a change in the law was a basis to support a downward departure, and he has not raised that issue before this Court. Thus, the majority has taken upon itself to raise an issue that has never been raised in either court
Additionally, because we have unanimously concluded that resentencing is required on the basis of the trial court’s failure to consider all defendant’s articulated objective and verifiable reasons for departure, Fields, supra, any further discussion is unnecessary to a decision, and therefore dicta. Mitchell v Detroit, 264 Mich App 37, 44; 689 NW2d 239 (2004). For these reasons, I would not discuss or decide the issue whether
No appellate court in this state has yet to hold that a change in the law — which is obviously objective and verifiable — can be considered in determining whether a defendant’s sentence should deviate below (or above) the sentencing guidelines. I advocate against creating this questionable new rule of law in a case in which the issue was neither raised nor decided at any level.
Of course, there are limited circumstances under which a court must raise issues sua sponte, such as the issue of subject-matter jurisdiction. In re Fraser Estate, 288 Mich 392, 394; 285 NW 1 (1939).
It is also quite possible that the majority has erred in its conclusion. We have unequivocally held that the amendments to MCL 333.7401 do not apply retroactively. People v Thomas, 260 Mich App 450,458-459; 678 NW2d 631 (2004). Thus, in Thomas, the defendant, who was sentenced on April 24, 2002, could not benefit from the amended statute effective March 1,2003. So too here. As the majority notes, Thomas is binding and precludes application of the amended statute to defendant, who was sentenced on September 9, 2002. Such a conclusion is also consistent with MCL 769.34(2), which provides generally that a defendant is to he sentenced under the law in effect on the date of his offense. People v Dailey, 469 Mich 1019 (2004).
The majority’s direction to the trial court to consider this change of law if it determines that other factors point to a downward departure seems contrary to this law. If an amendment to a sentencing statute is not retroactive, how can a court be allowed to consider the amendment when sentencing? If the amendment is not retroactive, it does not apply to any circumstances occurring before its enactment date.
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