Order Michigan Supreme Court 

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 crossappellant are considered and, pursuant to MCR 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 held that the March 1, 2003 amendments to MCL 333.7401 of the 

controlled substances act constitute a substantial and compelling reason to depart below 

the mandatory minimum sentences imposed 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 the record each factor articulated by a defendant as constituting 

a substantial and compelling reason for departure. MCL 769.34(10). In all other 

respects, the application for leave to appeal and the application for leave to appeal as 

cross-appellant are DENIED. 

CAVANAGH, J., would deny leave to appeal. 

CORRIGAN, 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 would, however, remand this case to the sentencing court for a 

determination whether defendant’s case presents substantial 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 a 
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defendant’s cooperation must be successful “such that the criminal 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 compelling 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 circumstances, be so “substantial and compelling” as to 

warrant a sentence below the statutory minimum. 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 Court held that a defendant who has 

provided to law enforcement information that was found to be neither useful nor relevant 

can be considered to have cooperated with law enforcement if that defendant never had 

any relevant or useful information to provide. We construed explicit statutory language 

in so doing. But we also noted 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 Dictionary, Second College Edition. We further noted that 

“cooperation would include conduct such as participating in a controlled 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 whether a defendant’s efforts at cooperation must actually 

succeed in affecting the criminal enterprise presents a pure question of law. Sentencing 

courts should operate according to a uniform standard, not varying viewpoints, in this 

regard. A defendant should not be denied the benefit of his cooperation because the 

cooperation yielded no fruits. For example, a cooperative defendant might agree to go 

undercover in an attempt to purchase narcotics. The defendant’s efforts, however, do not 

diminish the criminal enterprise if the drug dealer becomes nervous and decides not to 

make the sale. The drug dealer’s behavior should not affect whether the defendant may 

benefit from his cooperative efforts. A defendant takes a risk in participating in 

undercover operations. He thus should be permitted 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 addict-informer did not have 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 those efforts are ultimately 

unsuccessful, defendants may become reluctant to cooperate with law enforcement. 

Moreover, if courts “exercise their discretion” to require that cooperation must succeed, 

some cooperating defendants may be incentivized to fabricate information to make a 

stronger case for the prosecution. 
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For the above reasons, I would vacate defendant’s sentence and remand to the trial 

court for resentencing. 

KELLY, 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 sentencing court to address each factor articulated by 

defendant. It merely stated that the sentencing 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 considerable 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 Legislature to MCL 333.7401. The fact that certain 

mandatory minimum sentences were eliminated could constitute an objective and 

verifiable reason to depart downward from 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 Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

October 20, 2005 

Clerk