Michigan Supreme Court 

# Order

Lansing, Michigan

October 20, 2005 Clifford W. Taylor,
Chief Justice
128902 & (33) Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellant/ Justices Cross-Appellee,

v SC: 128902 COA: 251706 Macomb CC: 02-001008-FH ROBERT VICTOR MICHIELUTTI, Defendant-Appellee/ Cross-Appellant.

________________ _______________ __________/

On order of the Court, the application for leave to appeal the May 3, 2005 judgment of the Court of Appeals and the application for leave to appeal as cross

appellant are considered and, pursuant to M CR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE in part the judgment of the Court of Appeals and REMAND this case to the Macomb Circuit Court for entry of the original sentence. The Court of Appeals erred when it he ld that the March 1, 2003 amendments to MCL 333.7401 of the

controlled substances act constitute a substa ntial and compelling r eason to depart below the mandatory minimum sentences impos ed by the former version of the act. The Court of Appeals also erred when it held that resentencing is required whenever a sentencing judge fails to address on th e record each factor articulated by a defendant as constituting a substantial and compelling reason for dep arture. MCL 769.34(10). In all other respects, the application for le ave to appeal and the applica tion for leave to appeal as cross-appellant are DENIED.

C AVANAGH , J., would deny leave to appeal.

C ORRIGAN , J., states as follows:

I concur with the partial reversal of the judgment of the Court of Appeals as set

forth in the lead order. I w ould, however, remand this case to the sent encing court for a

determination whether defenda nt’s case presents substan tial and compelling reasons to depart below the mandatory minimum in accordance with People v Fields , 448 Mich 58, 62, 77-79 (1995). I reject as legally erroneous the sentencing court’s statement that a2

defendant’s cooperation must be successful “such that the crimin al enterprise is

diminished” in order for a defendant to benefit.

At the time of defendant’s sentencing, MCL 333.7401(4) stated that a “court may depart from the minimum term of imprisonment . . . if the court finds on the record that there are substantial and compelli ng reasons to do so.” In People v Clark , 185 Mich App 127, 133 (1990), the Court of Appeals held that a defendant’s cooperation with law enforcement may, in some ci rcumstances, be so “substan tial and compelling” as to warrant a sentence below the statutory minimu m. It noted that the extent of the defendant’s cooperation must be objective and verifiable. Id. The Clark case did not include any criterion regarding the success or failure of the defendant’s cooperation. In People v Stewart , 472 Mich 624, 633 (2005), this C ourt held that a defendant who has provided to law enforcement in formation that was found to be neither useful nor relevant

can be considered to have co operated with law enforcement if that defendant never had any relevant or useful informatio n to provide. We construe d explicit statutory language in so doing. But we also note d that “cooperate” is defined as “‘to work together; 1) to act or work together with one another or others for a common purpose.’” Id. at 636, quoting

Webster’s New World Dictionar y, Second College Edition . We furth er noted that “cooperation would include conduct such as participating in a cont rolled drug buy or a sting operation, or engaging in some other conduct to work with law enforcement toward a common goal.” Stewart, supra at 636. Nothing in the definition of cooperation

includes “success” as an element.

I believe the question whet her a defendant’s efforts atcooperation must actually succeed in affecting the criminal enterprise presents a pure ques tion of law. Sentencing courts should operate according to a uniform standard, not varying viewpoints, in this regard. A defendant sh ould not be denied the benefit of his co operation because the cooperation yielded no fruits. For example, a cooperative defendant might agree to go undercover in an attempt to purchase narcotics. The defenda nt’s efforts, however, do not diminish the criminal enterprise if the dr ug dealer becomes nervous and decides not to make the sale. The drug dealer’s behavior should not affect whet her the defendant may benefit from his cooperative efforts. A defe ndant takes a risk in participating in undercover operations. He thus should be p ermitted to benefit from his cooperation if it is objective and verifiable. In People v Atkins , 397 Mich 163, 173 (1976), this Court stated that “[i]t would be atypical if an a ddict-informer did not ha ve an expectation of consideration for his cooperation in a given case. The well of informer cooperation would soon run dry if law enforcement consistently adhered to a policy of no consideration.” Likewise, if trial courts ignore cooperative efforts because thos e efforts are ultimately unsuccessful, defendants may become relucta nt to cooperate with law enforcement. Moreover, if courts “exercise their discre tion” to require that cooperation must succeed, some cooperating defendants may be incentivi zed to fabricate information to make a stronger case for the prosecution._______________________________________ __ 3

For the above reasons, I would vacate defen dant’s sentence and remand to the trial court for resentencing.

K ELLY , J., dissents and states as follows:

I would deny leave to appeal. I believe that the Court of Appeals reached the correct conclusion in this case. Contrary to the majority’s characterization, the Court of Appeals did not require the se ntencing court to address each factor articulated by defendant. It merely stated that the sentenci ng court should make an adequate record to support meaningful review, especially regarding factors that have been deemed substantial and compelling in the past.

I also agree with Justice Corrigan that we should view cooperation with law enforcement more favorably . A defendant often runs c onsiderable risk in making attempts to cooperate. Therefore, a defendant should not be denied the benefit of that cooperation just because it did not produce the desired results.

Finally, I would affirm the Court of Appeals holding regarding the effect of ameliorative changes made by the Legislatu re to MCL 333.7401. The fact that certain mandatory minimum sentences were eliminat ed could constitute an objective and verifiable reason to depart downward fro m the guidelines’ minimum sentence in some

cases. The decision should be left to the discretion of the trial court.

s1017 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

October 20, 2005

Clerk