____________________________________________________________________________________________ 

____________________________________________________________________________________________________________________________ 

 

Michigan Supreme Court

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr.

Stephen J. Markman 

FILED JULY 31, 2003
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellant,
 

v No. 121310
 

GERALD LEE BABCOCK,
 

Defendant-Appellee.
 

BEFORE THE ENTIRE BENCH
 

MARKMAN, J.
 

We granted leave to appeal in this case to consider
 

whether the trial court articulated a substantial and
 

compelling reason, as required under MCL 769.34(3), to justify
 

its downward departure from the statutory sentencing
 

guidelines. The Court of Appeals concluded that the trial
 

court did not abuse its discretion in departing from the
 

guidelines and, thus, affirmed defendant’s sentence. The
 

Court of Appeals concluded that some of the trial court’s
 
reasons for departing from the statutory sentencing guidelines
 

were not objective and verifiable and, therefore, not
 

substantial and compelling. Because the Court of Appeals did
 

not determine whether the trial court would have departed, and
 

would have departed to the same degree, had it not relied on
 

these improper factors, we reverse the judgment of the Court
 

of Appeals and remand this case to the Court of Appeals for
 

further consideration pursuant to this opinion. 


I. FACTS AND PROCEDURAL HISTORY
 

Defendant pleaded guilty to two counts of second-degree
 

criminal sexual conduct and, in exchange, the prosecutor
 

dismissed the single original charge of first-degree criminal
 

sexual conduct. Although the statutory sentencing guidelines
 

called for a minimum range of thirty-six to seventy-one
 

months, the trial court sentenced defendant to three years’
 

probation and one year in jail; however, all but sixty days of
 

defendant’s jail term were suspended. The trial court’s
 

reasons for departing from the guidelines consisted of the
 

following: (1) defendant had no prior criminal record, (2) the
 

crime involved a family member, (3) a three-year minimum was
 

too “harsh,” and (4) treatment outside a prison environment
 

was more likely to rehabilitate defendant. In a published
 

decision (Babcock I), the Court of Appeals vacated defendant’s
 

sentence, having concluded that the trial court’s reasons for
 

2
 
the departure were not substantial and compelling. 1
 

On remand, the trial court again sentenced defendant to
 

probation and a suspended jail term. The trial court
 

articulated additional reasons for the downward departure,
 

including the following: (1) the probation officer recommended
 

probation, rather than a prison term; (2) defendant’s trial
 

counsel, in an affidavit, recommended against a prison term;
 

(3) a great portion of the victim’s emotional harm was caused
 

by defendant’s uncle who abused her and from separation from
 

defendant’s grandmother; (4) letters from defendant’s
 

brother’s special-education teacher and attorney indicated
 

that defendant’s brother is severely disabled because of
 

cerebral palsy and mental retardation and that defendant is
 

his brother’s primary caregiver; (5) a letter from defendant’s
 

physician indicated that defendant suffers from herniated
 

discs; and, finally, (6) the fact that defendant’s uncle, who
 

has a normal intelligence level, played a much greater role in
 

harming the victim than did defendant, who has a “borderlineto-normal” intelligence level. After remand, in a published
 

decision (Babcock II), the Court of Appeals affirmed the
 

sentence, having concluded that, although some factors cited
 

by the trial court were not objective and verifiable, the
 

trial court did not abuse its discretion in departing from the
 

1

 244 Mich App 64; 624 NW2d 479 (2000).
 

3
 
guidelines.2 We granted the prosecutor’s application for
 

leave to appeal.3
 

II. STANDARD OF REVIEW
 

This case presents an issue of statutory interpretation,
 

i.e., the interpretation of the statutory sentencing
 

guidelines, MCL 769.34, which we review de novo. Veenstra v
 

Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643
 

(2002).
 

III. ANALYSIS
 

A. HISTORY OF SENTENCING GUIDELINES
 

In 1983, this Court concluded that an appellate court has
 

the authority to review a trial court’s exercise of discretion
 

in sentencing. People v Coles, 417 Mich 523, 550; 339 NW2d
 

440 (1983). At the time Coles was decided, there were no
 

sentencing guidelines; instead, there were merely statutory
 

minimums and maximums for certain offenses, and a trial court
 

could sentence a convicted person to any period within this
 

statutory range.4 In Coles, this Court concluded that the
 

2 250 Mich App 463; 648 NW2d 221 (2002).
 

3 467 Mich 872 (2002).
 

4

 At the time, there were also, as there continue to be,


mandatory sentences for certain offenses. For example, a
 

first-degree murder conviction mandates a sentence of
 

imprisonment for life, MCL 750.316, and a conviction for


possession of a firearm during the commission of a felony


mandates a sentence of imprisonment for two years, MCL


750.227b. Neither the judicial nor the statutory sentencing


guidelines would supersede a mandatory sentence.
 

4
 
appellate court could review a trial court’s selection of a
 

sentence within the statutory minimum and maximum; however,
 

the appellate court could “afford relief to the defendant only
 

if the appellate court finds that the trial court, in imposing
 

the sentence, abused its discretion to the extent that it
 

shocks the conscience of the appellate court.” Id.
 

In 1983, this Court crafted judicial sentencing
 

guidelines and promulgated these guidelines by administrative
 

order.5 As this Court explained in People v Hegwood, 465 Mich
 

432, 438; 636 NW2d 127 (2001):
 

This Court’s sentencing guidelines were
 

“mandatory” only in the sense that the sentencing


court was obliged to follow the procedure of


“scoring” a case on the basis of the circumstances


of the offense and the offender, and articulate the


basis for any departure from the recommended
 

sentence range yielded by this scoring. However,


because the recommended ranges found in the
 

judicial guidelines were not the product of
 

legislative action, a sentencing judge was not


necessarily obliged to impose a sentence within


those ranges.
 

In 1990, this Court overruled the Coles “shocks the
 

conscience” test and adopted in its place the “principle of
 

proportionality” test, “which requires sentences imposed by
 

the trial court to be proportionate to the seriousness of the
 

circumstances surrounding the offense and the offender.”
 

People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). More
 

specifically, the Court stated that “the Legislature, in
 

5

 Administrative Order No. 1983-3, 417 Mich cxxi (1983).
 

5 
setting a range of allowable punishments for a single felony,
 

intended persons whose conduct is more harmful and who have
 

more serious prior criminal records to receive greater
 

punishment than those whose criminal behavior and prior record
 

are less threatening to society.” Id. at 651. 


In 1998, the Legislature enacted statutory sentencing
 

guidelines, MCL 777.1 et seq.6

 As this Court in Hegwood,
 

supra at 439, explained:
 

Because the new guidelines are the product of


legislative enactment, a judge’s discretion to


depart from the range stated in the legislative


guidelines is limited to those circumstances in


which such a departure is allowed by the
 

Legislature. 


Under the statutory sentencing guidelines, a departure is only
 

allowed by the Legislature if there is a “substantial and
 

compelling reason” for doing so.7 MCL 769.34(3).8
 

6

 The statutory sentencing guidelines are applicable to


enumerated felonies committed on or after January 1, 1999.


MCL 769.34(2). 


7 It is only the minimum sentence that must presumptively


be within the appropriate sentence range. MCL 769.34(2). The
 

maximum sentence is either set by statute, e.g., the maximum


sentence for extortion is twenty years, MCL 750.213, or it


falls within the judge’s discretion. In exercising this


judicial discretion, the trial court cannot impose a minimum


sentence that exceeds two-thirds of the maximum sentence.
 

People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972); MCL


769.34(2)(b).
 

8
 As explained in Hegwood, supra at 440 n 16: “In MCL
 

769.34(3), the Legislature states a rule that makes no


apparent distinctions between ‘upward departures,’ that
 

increase the sentence beyond the length stated in the


guidelines, and ‘downward departures,’ that decrease the
 

6
 
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.” Milbourn, supra at 636. 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.9 Consequently, and as discussed more fully below, the
 

role of the Court of Appeals has also changed from reviewing
 

the trial court’s sentencing decision for “proportionality” to
 

sentence below the length stated in the guidelines.” 


9 In at least one circumstance, a sentence may constitute
 

a departure, and thus require the articulation of a
 

substantial and compelling reason, even though the sentence is


within the appropriate sentence range. People v Stauffer, 465
 

Mich 633, 636; 640 NW2d 869 (2002). MCL 769.34(4)(a)
 

provides:
 

If the upper limit of the recommended minimum


sentence range for a defendant determined under the


sentencing guidelines set forth in [MCL 777.1 et
 

seq.] is 18 months or less, the court shall impose


an intermediate sanction unless the court states on
 

the record a substantial and compelling reason to


sentence the individual to the jurisdiction of the


department of corrections . . . .
 

Accordingly, if the upper limit of the appropriate sentence


range is less than eighteen months, the sentencing court


cannot impose a prison sentence absent a finding of a


substantial and compelling reason.
 

7
 
reviewing the trial court’s 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.10
 

B. “SUBSTANTIAL AND COMPELLING REASON”
 

The statutory sentencing guidelines, provide in pertinent
 

part:
 

A court may depart from the appropriate


sentence range established under the sentencing


guidelines set forth in [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. [MCL 769.34(3).]
 

In People v Fields, 448 Mich 58; 528 NW2d 176 (1995), this
 

Court defined “substantial and compelling reasons” in the
 

context of departures from mandatory minimum sentences in
 

controlled-substance cases.11 This Court stated that “only
 

those factors that are objective and verifiable may be used to
 

judge whether substantial and compelling reasons exist
 

10 This is not to say, however, that proportionality is


irrelevant under the statutory sentencing guidelines. See
 

part 3(D). 


11 At the time Fields was decided, the controlledsubstances act, MCL 333.7401(4), provided in relevant part:
 

The 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.
 

8
 
. . . .” Id. at 62. We further stated that “the reasons
 

justifying departure should ‘keenly’ or ‘irresistibly’ grab
 

our attention, and we should recognize them as being ‘of
 

considerable worth’ in deciding the length of a sentence.”
 

Id. at 67. Lastly, we stated, “the Legislature intended
 

‘substantial and compelling reasons’ to exist only in
 

exceptional cases.” Id. at 68.
 

“A legal term of art is a technical word or phrase that
 

has acquired a particular and appropriate meaning in the law.
 

It is, in a statute, to be construed and understood according
 

to such meaning.” People v Law, 459 Mich 419, 425 n 8; 591
 

NW2d 20 (1999), citing MCL 8.3a, which provides, “technical
 

words and phrases, and such as may have acquired a peculiar
 

and appropriate meaning in the law, shall be construed and
 

understood according to such peculiar and appropriate
 

meaning.” The phrase “substantial and compelling reason” has,
 

in our judgment, acquired a peculiar and appropriate meaning
 

in the law and, thus, it must be construed according to such
 

meaning. That is, a “substantial and compelling reason” must
 

be construed to mean an “objective and verifiable” reason that
 

“‘keenly’ or ‘irresistibly’ grabs our attention”; is “of
 

‘considerable worth’ in deciding the length of a sentence”;
 

and “exists only in exceptional cases.” Fields, supra at 62,
 

9
 
67-68. 12
 

C. “STATES ON THE RECORD”
 

The statutory sentencing guidelines, MCL 769.34(3),
 

require the trial court to “state[] on the record the reasons
 

for departure.” Therefore, it is not enough that there exists
 

some potentially substantial and compelling reason to depart
 

from the guidelines range. Rather, this reason must be
 

articulated by the trial court on the record. Accordingly, on
 

review of the trial court’s sentencing decision, the Court of
 

Appeals cannot affirm a sentence on the basis that, even
 

12 Although the trial court may depart from the guidelines


range on the basis that a substantial and compelling reason to


do so exists, the trial 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 . . . that the characteristic has


been given inadequate or disproportionate weight.” MCL
 

769.34(3)(b). Therefore, if the seriousness of the
 

defendant’s conduct and his criminal history have already been


taken into account in determining the guidelines range, they


cannot be used to justify the trial court’s departure, unless


the trial court finds that these factors have been given


inadequate or disproportionate weight. 


For instance, if a defendant convicted of armed robbery


is scored 25 points under offense variable one because he


stabbed his victim, see MCL 777.31, that the defendant stabbed


his victim probably could not constitute a substantial and


compelling reason to justify a departure because the
 

Legislature has already determined what effect should be given


to the fact that a defendant has stabbed his victim and the
 

courts must abide by this determination. However, if the


defendant stabbed his victim multiple times, or in a manner


designed to inflict maximum harm, that might constitute a


substantial and compelling reason for a departure because


these characteristics may have been given inadequate weight in


determining the guidelines range.
 

10
 
 

though the trial court did not articulate a substantial and
 

compelling reason for departure, one exists in the judgment of
 

the panel on appeal. Instead, in such a situation, the Court
 

of Appeals must remand the case to the trial court for
 

resentencing or rearticulation. The obligation is on the
 

trial court to articulate a substantial and compelling reason
 

for any departure. As discussed below, the obligation of the
 

Court of Appeals is to review the trial court’s determination
 

that a substantial and compelling reason exists for
 

departure.13
 

Further, the trial court must go beyond articulating a
 

substantial and compelling reason for some departure. Rather,
 

the trial court can depart from the guidelines range only “if
 

the court has a substantial and compelling reason for that
 

departure . . . .” MCL 769.34(3) (emphasis added). As we
 

explained in Hegwood, supra at 437 n 10:
 

In light of such language, we do not believe


that the Legislature intended, in every case in


which a minimal upward or downward departure is
 

13 Although the trial court must articulate a substantial


and compelling reason to justify its departure, the trial


court is not required to use any formulaic or “magic” words in


doing so. Although the better practice may be for the trial


court to specifically state that “[t]he substantial and


compelling reason that justifies my twelve-month departure


here is . . . ,” something short of this may well suffice as


long as the trial court has articulated a substantial and


compelling reason that justifies its departure. In any event,


however it is articulated, the quality of the trial court’s


statement must be sufficient to allow for effective appellate


review.
 

11
 
justified by “substantial and compelling”


circumstances, to allow unreviewable discretion to


depart as far below or as far above the guideline


range as the sentencing court chooses. Rather, the


“substantial and compelling” circumstances
 

articulated by the court must justify the
 

particular departure in a case, i.e., “that
 

departure.” [Emphasis in original.]
 

Thus, the trial court must articulate on the record a
 

substantial and compelling reason to justify the particular
 

departure imposed.14
 

Because the trial court must articulate on the record a
 

substantial and compelling reason to justify the particular
 

departure, if the trial court articulates multiple reasons,
 

and the Court of Appeals determines that some of these reasons
 

are substantial and compelling and some are not, the panel
 

must determine the trial court’s intentions. That is, it must
 

determine whether the trial court would have departed and
 

would have departed to the same degree on the basis of the
 

substantial and compelling reasons alone.15 If the Court of
 

14 However, this is not to say that the trial court must


explain why it chose a twelve-month departure as opposed to an


eleven-month departure (or indeed as opposed to any one of


countless other potential departures). Rather, the trial


court must simply explain why the actual departure that it


imposed is justified by the substantial and compelling reasons


articulated.
 

15 When the trial court articulates multiple reasons for


its departure and possesses doubts regarding whether one of


these reasons is a substantial and compelling reason, but


would sentence the defendant the same regardless of this


reason, the best practice would be for the trial court to


explicitly state, if it is true, that “I would impose the same


sentence regardless of this reason.” However, something short
 

12
 
Appeals is unable to determine whether the trial court would
 

have departed to the same degree on the basis of the
 

substantial and compelling reasons, or determines that the
 

trial court would not have departed to the same degree on the
 

basis of the substantial and compelling reasons, the Court of
 

Appeals must remand the case to the trial court for
 

resentencing or rearticulation of its substantial and
 

compelling reasons to justify its departure.16 For instance,
 

if the trial court departs from the guidelines range by twelve
 

months and articulates reasons A, B, and C to justify this
 

departure, and if the Court of Appeals determines that reasons
 

A and B are not substantial and compelling reasons,17 but that
 

C is, the Court of Appeals must determine whether the trial
 

of such an explicit statement may well suffice as long as it


is clear from the record that the trial court would not have
 

sentenced defendant differently if it had not relied on this


improper reason.
 

16 On remand, the trial court does not necessarily have


to impose a different sentence. It may impose the same


sentence as long as it articulates a substantial and
 

compelling reason that justifies this sentence.
 

17 There are several reasons the Court of Appeals may


determine that a reason is not a substantial and compelling


reason, such as that it is not “objective and verifiable”; it


does not “‘keenly’ or ‘irresistibly’ grab our attention”; or


it is not of “‘considerable worth’” in deciding the length of


a sentence.” Fields, supra at 62, 67. Additionally, it may


be concluded that an offense or offender characteristic has
 

already been taken into account in determining the guidelines


range, and that the trial court has not found that the


characteristic has been given inadequate or disproportionate


weight. MCL 769.34(3)(b). 


13
 
court would have departed from the guidelines range by twelve
 

months on the basis of reason C alone.
 

D. PROPORTIONALITY
 

If the trial court’s sentence is within the appropriate
 

guidelines range, the Court of Appeals must affirm the
 

sentence unless the trial court erred in scoring the
 

guidelines or relied on inaccurate information in determining
 

the defendant’s sentence. MCL 769.34(10).18 However, if the
 

sentence is not within the guidelines range, the Court of
 

Appeals must determine whether the trial court articulated a
 

substantial and compelling reason to justify its departure
 

from that range. MCL 769.34(11).19
 

In determining whether a sufficient basis exists to
 

justify a departure, the principle of proportionality—that is,
 

18 MCL 769.34(10) provides in relevant part: 


If a minimum sentence is within the
 

appropriate guidelines sentence range, the court of


appeals shall affirm that sentence and shall not


remand for resentencing absent an error in scoring


the sentencing guidelines or inaccurate information


relied upon in determining the defendant’s
 

sentence. . . .
 

19 MCL 769.34(11) provides:
 

If, upon review of the record, the court of


appeals finds the trial court did not have a


substantial and compelling reason for departing


from the appropriate sentence range, the court


shall remand the matter to the sentencing judge or


another trial court judge for resentencing under


this chapter. 


14
 
whether the sentence is proportionate to the seriousness of
 

the defendant’s conduct and to the defendant in light of his
 

criminal record—defines the standard against which the
 

allegedly substantial and compelling reasons in support of
 

departure are to be assessed.20 The relevancy of
 

proportionality is obvious. As in any civilized society,
 

punishment should be made to fit the crime and the criminal.
 

BMW of North America, Inc, v Gore, 517 US 559, 576 n 24; 116
 

S Ct 1589; 134 L Ed 2d 809 (1996)(“The principle that
 

punishment should fit the crime ‘is deeply rooted and
 

frequently repeated . . . .’”)(citation omitted); Weems v
 

United States, 217 US 349, 367; 30 S Ct 544; 54 L Ed 793
 

(1910)(“It is a precept of justice that punishment for crime
 

should be graduated and proportioned to the offense.”);
 

Thomas Jefferson, A Bill for Proportioning Crimes & Punishment
 

in Virginia, 1779 (“[G]overnment would be defective in its
 

principal purpose [were it not] a duty in the legislature to
 

arrange in a proper scale the crimes which it may be necessary
 

for them to repress, and to adjust thereto a corresponding
 

gradation of punishments”); Beccaria, On Crimes and
 

Punishments (1764)(“Therefore, the means made use of by the
 

20 In other words, while “substantial and compelling” sets


forth the quality of the reasons that must be set forth in


support of a departure from the guidelines, the principle of


“proportionality” defines the standard against which the


decision to depart, and the particular departure imposed, must


be assessed.
 

15
 
legislature to prevent crimes should be more powerful in
 

proportion as they are destructive of the public safety and
 

happiness, and as the inducements to commit them are stronger.
 

Therefore there ought to be a fixed proportion between crimes
 

and punishments.”); Note, Mandatory life sentence without
 

parole found constitutionally permissible For cocaine
 

possession-Harmelin v Michigan, 67 Wash L R 713, 714 (1992)
 

(“The belief that the punishment should fit the crime is
 

deeply rooted in Western civilization. The proportionality
 

concept appears in fundamental social documents such as the
 

Bible and the Magna Carta.”) Accordingly, jaywalking is not
 

punishable by life imprisonment, first-degree murder is not
 

punishable by thirty days in jail, and a person convicted of
 

robbery for the fourth time generally faces a more severe
 

punishment than a person convicted of robbery for the first
 

time. The premise of our system of criminal justice is that,
 

everything else being equal, the more egregious the offense,
 

and the more recidivist the criminal, the greater the
 

punishment.
 

The Legislature has subscribed to this principle of
 

proportionality in establishing mandatory sentences as well as
 

minimum and maximum sentences for certain offenses. See
 

Milbourn, supra at 635-636. It has also subscribed to this
 

principle of proportionality in establishing the statutory
 

sentencing guidelines. Under the guidelines, offense and
 

16
 
prior record variables are scored to determine the appropriate
 

sentence range. Offense variables take into account the
 

severity of the criminal offense, while prior record variables
 

take into account the offender’s criminal history. Therefore,
 

the appropriate sentence range is determined by reference to
 

the principle of proportionality; it is a function of the
 

seriousness of the crime and of the defendant’s criminal
 

history. 


Accordingly, in considering whether to depart from the
 

guidelines, the trial court must ascertain whether taking into
 

account an allegedly substantial and compelling reason would
 

contribute to a more proportionate criminal sentence than is
 

available within the guidelines range. In other words, if
 

there are substantial and compelling reasons that lead the
 

trial court to believe that a sentence within the guidelines
 

range is not proportionate to the seriousness of the
 

defendant’s conduct and to the seriousness of his criminal
 

history, the trial court should depart from the guidelines.
 

Additionally, in departing from the guidelines range, the
 

trial court must consider whether its sentence is
 

proportionate to the seriousness of the defendant’s conduct
 

and his criminal history because, if it is not, the trial
 

court’s departure is necessarily not justified by a
 

substantial and compelling reason. 


17
 
E. STANDARD OF REVIEW OF SENTENCES OUTSIDE GUIDELINES 


In Babcock I, supra at 75-76, the Court of Appeals,
 

quoting Fields, supra at 77-78, concluded that
 

“the existence or nonexistence of a particular


factor is a factual determination for the
 

sentencing court to determine, and should therefore


be reviewed by an appellate court for clear error.


The determination that a particular factor is


objective and verifiable should be reviewed by the


appellate court as a matter of law. A trial
 

court’s determination that the objective and
 

verifiable factors present in a particular case


constitute substantial and compelling reasons to


depart from the statutory minimum sentence shall be


reviewed for abuse of discretion.”
 

We agree.
 

In Babcock II, supra at 467 n 3, the Court of Appeals
 

concluded that, although it was bound by the above language,
 

it “question[ed] the Babcock I holding regarding the abuse of
 

discretion standard of review in light of the language in MCL
 

769.34(11), which appears to suggest that our review is de
 

novo.” MCL 769.34(11) provides:
 

If, upon a review of the record, the court of


appeals finds the trial court did not have a


substantial and compelling reason for departing


from the appropriate sentence range, the court


shall remand the matter to the sentencing judge or


another trial court judge for resentencing under


this chapter.
 

Defendant contends that the trial court’s decision that
 

there is a substantial and compelling reason to depart from
 

the guidelines range should be reviewed for an abuse of
 

discretion. On the other hand, the prosecutor contends that
 

18
 
such a decision should be reviewed de novo. Although we agree
 

with Babcock I’s articulation of the applicable standards of
 

review—whether a factor exists is reviewed for clear error,
 

whether a factor is objective and verifiable is reviewed de
 

novo, and whether a reason is substantial and compelling is
 

reviewed for abuse of discretion—we take this opportunity to
 

clarify the meaning of an abuse of discretion with regard to
 

the Court of Appeals review of a trial court’s decision that
 

there is a substantial and compelling reason that justifies a
 

sentencing departure. 


In Babcock I, the Court of Appeals quoted the abuse of
 

discretion test taken from Spalding v Spalding, 355 Mich 382,
 

384-385; 94 NW2d 810 (1959), which is that an abuse of
 

discretion occurs when the lower court’s decision is “so
 

palpably and grossly violative of fact and logic that it
 

evidences not the exercise of will but perversity of will, not
 

the exercise of judgment but defiance thereof, not the
 

exercise of reason but rather of passion or bias.”
 

The Spalding abuse of discretion standard is one that
 

entitles the trial court the utmost level of deference. In
 

our judgment, while the Legislature intended to accord
 

deference to the trial court’s departure from the sentencingguidelines range, it did not intend this determination to be
 

entitled to Spalding’s extremely high level of deference. 


19
 
 

MCL 769.34(11) clearly states that if “the court of
 

appeals finds the trial court did not have a substantial and
 

compelling reason for departing from the appropriate sentence
 

range, the court shall remand the matter to the sentencing
 

judge or another trial court judge for resentencing . . . .”
 

“Find” is defined as: “to discover or perceive after
 

consideration . . . .” Random House Webster’s College
 

Dictionary (1991). Therefore, if, after consideration, the
 

Court of Appeals discovers or perceives that the trial court
 

did not have a substantial and compelling reason to justify
 

its departure, the Court must remand the case for
 

resentencing. This statute clearly does not require the Court
 

of Appeals, in accord with Spalding, to affirm “unless the
 

result [is] so palpably and grossly violative of fact and
 

logic that it evidences not the exercise of will but the
 

perversity of will, not the exercise of judgment but defiance
 

thereof, not the exercise of reason but rather of passion or
 

bias.”21 Spalding, supra at 384-385.
 

21 Further, application of Spalding’s abuse of discretion
 

standard to the trial court’s finding of a substantial and


compelling reason to justify its departure from the guidelines


range would not further the manifest purpose of the statutory


sentencing guidelines. The Legislature adopted these
 

guidelines intending to reduce unjustified disparities in


sentencing. See 1994 PA 445, § 33(1)(e)(iv)(stating that


sentencing guidelines shall, “Reduce sentencing disparities


based on factors other than offense characteristics and
 

offender characteristics and ensure that offenders with
 

similar offense and offender characteristics receive
 

substantially similar sentences.”)(repealed March 7, 2002).
 

20
 
 

 

That said, some degree of deference is nevertheless owed
 

the trial court’s finding, and thus a review de novo would be
 

inappropriate. The structure and content of the sentencing
 

guidelines, as well as the organization of the appellate
 

system itself, plainly reveal the Legislature’s recognition
 

that the trial court is optimally situated to understand a
 

criminal case and to craft an appropriate sentence for one
 

convicted in such a case. For example, the trial court “may
 

depart from the appropriate sentence range established under
 

the sentencing guidelines . . . if the court has a substantial
 

and compelling reason for that departure. . . .” MCL
 

769.34(3). Additionally, the trial court may even “base a
 

departure on an offense characteristic or offender
 

characteristic already taken into account in determining the
 

appropriate sentence range” if “the court finds . . . that the
 

characteristic has been given inadequate or disproportionate
 

weight.” MCL 769.34(3)(b). Finally, the Court of Appeals
 

must affirm the trial court’s sentence if it is within the
 

appropriate guidelines range, unless the trial court made an
 

“Thus, the very premise of the guidelines is that judicial


discretion will be restricted to a certain degree.” Hegwood,
 

supra at 438. However, if the trial court is allowed to


depart from the guidelines unless its decision to do so is “so


palpably and grossly violative of fact and logic that it


evidences not the exercise of will but the perversity of will,


not the exercise of judgment but defiance thereof, not the


exercise of reason but rather of passion or bias,” Spalding,
 

supra, the Legislature’s intent to reduce unjustified


disparities in sentencing will be significantly thwarted.
 

21
 
error in scoring the sentencing guidelines or relied on
 

inaccurate information in determining the sentence. MCL
 

769.34(10). 


It is clear that the Legislature has imposed on the
 

trial court the responsibility of making difficult decisions
 

concerning criminal sentencing, largely on the basis of what
 

has taken place in its direct observation. Review de novo is
 

a form of review primarily reserved for questions of law, the
 

determination of which is not hindered by the appellate
 

court’s distance and separation from the testimony and
 

evidence produced at trial. The application of the statutory
 

sentencing guidelines to the facts is 


not a generally recurring, purely legal matter,


such as interpreting a set of legal words, say,


those of an individual guideline, in order to


determine their basic intent. Nor is that question


readily resolved by reference to general legal


principles and standards alone. Rather, the
 

question at issue grows out of, and is bounded by,


case-specific detailed factual circumstances.
 

[Buford v United States, 532 US 59, 65; 121 S Ct


1276; 149 L Ed 2d 197 (2001).]
 

Because of the trial court’s familiarity with the facts and
 

its experience in sentencing, the trial court is better
 

situated than the appellate court to determine whether a
 

departure is warranted in a particular case. Accordingly,
 

review de novo, in which a panel of appellate judges could
 

substitute its own judgment for that of the trial court, is
 

surely not the appropriate standard by which to review the
 

22
 
determination that a substantial and compelling reason exists
 

to justify a departure from the guidelines range. Instead,
 

the appellate court must accord this determination some degree
 

of deference.
 

Therefore, the appropriate standard of review must be one
 

that is more deferential than de novo, but less deferential
 

than the Spalding abuse of discretion standard. At its core,
 

an abuse of discretion standard acknowledges that there will
 

be circumstances in which there will be no single correct
 

outcome; rather, there will be more than one reasonable and
 

principled outcome. See People v Talley, 410 Mich 378, 398;
 

301 NW2d 809 (1981)(LEVIN, J., concurring), quoting Langes v
 

Green, 282 US 531, 541; 51 S Ct 243; 75 L Ed 520 (1931)(“‘The
 

term “discretion” denotes the absence of a hard and fast
 

rule.’”). When the trial court selects one of these
 

principled outcomes, the trial court has not abused its
 

discretion and, thus, it is proper for the reviewing court to
 

defer to the trial court’s judgment. An abuse of discretion
 

occurs, however, when the trial court chooses an outcome
 

falling outside this principled range of outcomes. See
 

Conoco, Inc, v JM Huber Corp, 289 F3d 819, 826 (CA Fed,
 

2002)(“Under an abuse of discretion review, a range of
 

reasonable determinations would survive review.”); United
 

States v Penny, 60 F3d 1257, 1265 (CA 7, 1995)(“a court does
 

not abuse its discretion when its decision ‘is within the
 

23
 
range of options from which one would expect a reasonable
 

trial judge to select’”)(citation omitted). We believe that
 

this test more accurately describes the appropriate range of
 

the trial court’s discretion with regard to determining
 

whether a substantial and compelling reason exists to justify
 

its departure from the appropriate sentence range. Further,
 

we believe that this test will contribute significantly to
 

more consistent sentencing, both by enabling the Court of
 

Appeals to more effectively constrain departures from the
 

appropriate range of discretion by trial courts and by
 

imposing a more consistent standard of review upon the Court
 

of Appeals itself.
 

Accordingly, the Court of Appeals must determine, upon a
 

review of the record, whether the trial court had a
 

substantial and compelling reason to depart from the
 

guidelines, recognizing that the trial court was in the better
 

position to make such a determination and giving this
 

determination appropriate deference. The deference that is
 

due is an acknowledgment of the trial court’s extensive
 

knowledge of the facts and that court’s direct familiarity
 

with the circumstances of the offender. The Court of Appeals
 

is to conduct the thorough review required by MCL 769.34(11),
 

honoring the prohibition against departures not grounded in a
 

substantial and compelling reason. MCL 769.34(3). In doing
 

so, however, the Court must proceed with a caution grounded in
 

24
 
the inherent limitations of the appellate perspective. 


IV. APPLICATION
 

In this case, the Court of Appeals concluded that some of
 

the reasons articulated by the trial court were not objective
 

and verifiable. As explained above, if a reason is not
 

objective and verifiable, it cannot constitute a substantial
 

and compelling reason.22 As also explained above, if the trial
 

court articulates multiple reasons, and the Court of Appeals,
 

as in this case, determines that some of these reasons are
 

substantial and compelling and some are not, and the Court of
 

Appeals is unable to determine whether the trial court would
 

have departed to the same degree on the basis of the
 

substantial and compelling reasons, the Court must remand the
 

case to the trial court for resentencing or rearticulation.
 

Because the Court of Appeals in this case did not determine
 

whether the trial court would have departed, and would have
 

departed to the same degree, absent consideration of the
 

reasons that the Court of Appeals found to be not objective
 

and verifiable, we reverse its judgment and remand this case
 

to the Court of Appeals for further consideration. 


V. CONCLUSION
 

For the above reasons, we reverse the judgment of the
 

22 While a reason cannot be a substantial and compelling


reason unless it is objective and verifiable, the opposite is


not always true. A reason can be objective and verifiable


without being substantial and compelling.
 

25
 
Court of Appeals and remand this case to the Court of Appeals
 

for further consideration pursuant to this opinion.
 

Stephen J. Markman


Marilyn Kelly


Clifford W. Taylor
 

CORRIGAN, C.J.
 

I concur in all except parts IIIC and IV.
 

Maura D. Corrigan
 

CAVANAGH, J.
 

I concur in all except part IIIB.
 

Michael F. Cavanagh
 

APPENDIX
 

In order to assist the bench and bar, the following is a
 

summary of the responsibilities of the trial court and Court
 

of Appeals under the statutory sentencing guidelines: 


1. A trial court is required to choose a minimum
 

sentence within the guidelines range, unless there is a
 

substantial and compelling reason for departing from this
 

range. MCL 769.34(2), (3).
 

2. If a trial court’s sentence is within the guidelines
 

range, the Court of Appeals must affirm the sentence unless
 

the trial court erred in scoring the guidelines or relied on
 

inaccurate information in determining the defendant’s
 

sentence. MCL 769.34(10).
 

26
 
3. A substantial and compelling reason must be
 

“objective and verifiable”; must “‘keenly’ or ‘irresistibly’
 

grab our attention”; and must be “of ‘considerable worth’ in
 

deciding the length of a sentence.” Fields, supra at 62, 67.
 

4. A trial court must articulate on the record a
 

substantial and compelling reason for its particular
 

departure, and explain why this reason justifies that
 

departure. MCL 769.34(3); People v Daniel, 462 Mich 1, 9; 609
 

NW2d 557 (2000). 


5. A trial 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 . . . that the characteristic has
 

been given inadequate or disproportionate weight.” MCL
 

769.34(3)(b).
 

6. In considering whether, and to what extent, to depart
 

from the guidelines range, a trial court must ascertain
 

whether taking into account an allegedly substantial and
 

compelling reason would contribute to a more proportionate
 

criminal sentence than is available within the guidelines
 

range. MCL 769.34(3). 


7. In reviewing sentencing decisions, the Court of
 

Appeals may not affirm a sentence on the basis that, although
 

the trial court did not articulate a substantial and
 

compelling reason for a departure, one nonetheless exists in
 

27
 
the judgment of the Court of Appeals. Instead, in such a
 

situation, the Court of Appeals must remand the case to the
 

trial court for resentencing. MCL 769.34(3); MCL 769.34(11).
 

8. If a trial court articulates multiple “substantial
 

and compelling” reasons for a departure from the guidelines,
 

and the Court of Appeals determines that some of these reasons
 

are substantial and compelling and others are not, the panel
 

must determine whether the trial court would have departed,
 

and would have departed to the same degree, on the basis of
 

the substantial and compelling reasons alone. MCL 769.34(3).
 

9. If a trial court departs from the guidelines range,
 

and its sentence is not based on a substantial and compelling
 

reason to justify the particular departure, i.e., the sentence
 

is not proportionate to the seriousness of the defendant’s
 

conduct and his criminal history, the Court of Appeals must
 

remand to the trial court for resentencing. MCL 769.34(11).
 

10. “‘[T]he existence or nonexistence of a particular
 

[sentencing] factor is a factual determination for the
 

sentencing court to determine, and should therefore be
 

reviewed by an appellate court for clear error.’” Babcock I,
 

supra at 75-76, quoting Fields, supra at 77.
 

11. “‘The determination that a particular [sentencing]
 

factor is objective and verifiable should be reviewed by the
 

appellate court as a matter of law.’” Babcock I, supra at 76,
 

quoting Fields, supra at 78.
 

28
 
12. “‘A trial court’s determination that the objective
 

and verifiable factors present in a particular case constitute
 

substantial and compelling reasons to depart from the
 

statutory minimum sentence shall be reviewed for abuse of
 

discretion.’” Babcock I, supra at 76, quoting Fields, supra
 

at 78. An abuse of discretion occurs when the trial court
 

chooses an outcome falling outside the permissible principled
 

range of outcomes.
 

29
 
 

____________________________________ 

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. 121310
 

GERALD LEE BABCOCK,
 

Defendant-Appellee.
 

CORRIGAN, C.J. (concurring in part and dissenting in part).
 

Although I concur with much of the majority’s analysis
 

and its result, I cannot agree with the majority’s analysis of
 

the remand requirement. Accordingly, I respectfully dissent
 

in part.
 

I would limit the requirement of a reviewing court to
 

remand for resentencing or rearticulation to that explicitly
 

provided by the Legislature in MCL 769.34(11). Rather than
 

interpret the statutory text, the majority creates a new
 

remand requirement out of whole cloth. The majority concludes
 

that “if the trial court articulates multiple reasons [for
 

departure], and the appellate court . . . determines that some
 

of these reasons are substantial and compelling and some are
 

not, and the Court of Appeals is unable to determine whether
 
 

the trial court would have departed to the same degree on the
 

basis of the substantial and compelling reasons, the Court
 

must remand the case to the trial court for resentencing or
 

rearticulation.” Ante at 26. This formulation is found
 

nowhere in the text of the sentencing guidelines and imposes
 

an unnecessary burden on both sentencing and reviewing courts.
 

MCL 769.34(11) provides:
 

If, upon a review of the record, the court of


appeals finds the trial court did not have a
 

substantial and compelling reason for departing


from the appropriate sentence range, the court


shall remand the matter to the sentencing judge or


another trial court judge for resentencing under


this chapter. [Emphasis added.]
 

The Legislature only requires the reviewing court to determine
 

whether the trial court had “a substantial and compelling
 

reason” for departing from the sentencing range. Therefore,
 

under the statute, the Court of Appeals may only remand for
 

resentencing or rearticulation if it finds that the trial
 

court did not articulate a single substantial and compelling
 

reason for the departure. 


In determining whether a trial court articulated a
 

substantial and compelling reason for departing from the
 

appropriate sentence range, the Court of Appeals must
 

necessarily determine whether the trial court met the
 

requirements of MCL 769.34(3): (1) did the trial court
 

articulate a substantial and compelling reason for that
 

2
 
particular departure, and (2) did the trial court state that
 

substantial and compelling reason on the record. Provided the
 

trial court complied with the requirements of MCL 769.34(3),
 

with the result that the Court of Appeals finds at least one
 

substantial and compelling reason for the departure imposed by
 

the trial court, then MCL 769.34(11) does not require a
 

remand.
 

Using the hypothetical example proposed by the majority,
 

even if a trial court provides multiple reasons for a
 

departure and some of those reasons are later determined not
 

to be substantial and compelling, the statute only requires a
 

remand if the Court of Appeals finds that the trial court did
 

not provide a single substantial and compelling reason for
 

that departure from the statutory sentence range. There is no
 

textual support for the majority’s requirement that the Court
 

of Appeals must remand any time any reason is determined not
 

to be substantial and compelling, no matter how many
 

substantial and compelling reasons remain, unless it is clear
 

to the reviewing court that the trial court would have imposed
 

the same departure on the basis of the remaining reasons. 


Not only is the majority’s analysis without textual
 

support, it also renders MCL 769.34(11) superfluous. It is a
 

cardinal rule of statutory interpretation that “effect shall
 

be given to every word, phrase, or clause of a statute.”
 

3
 
Robertson v DaimlerChrysler Corp, 465 Mich 732, 757; 641 NW2d
 

567 (2002). The majority’s interpretation, however, gives no
 

meaning to the Legislature’s explicit provision regarding
 

appellate review; rather, it simply collapses the appellate
 

inquiry into the initial determination to depart under MCL
 

739.34(3). In doing so, the majority ignores the
 

Legislature’s decision to specify the scope and purpose of
 

review by the Court of Appeals in subsection 11. 


Had the Legislature intended to require the Court of
 

Appeals to read the mind of the trial court in conducting its
 

review, it would have been sufficient to set forth the trial
 

court requirements in subsection 3 and omit subsection 11.
 

Instead, the Legislature provided for a specific standard of
 

review by the Court of Appeals in subsection 11: the Court of
 

Appeals shall only remand “[i]f, upon a review of the record,
 

the court of appeals finds the trial court did not have a
 

substantial and compelling reason for departing from the
 

appropriate sentence range.” If the majority’s analysis is
 

correct and the Court of Appeals must remand every time it is
 

unable to discern whether the trial court would have made the
 

same departure under the existing substantial and compelling
 

reasons, this language has no meaning. 


The plain language of subsection 11 requires the Court of
 

Appeals to conduct its own inquiry regarding whether the trial
 

4
 
court articulated a substantial and compelling reason for
 

departing from the guidelines. Random House Webster’s College
 

Dictionary (2d ed, 1997), defines “find” as “to discover or
 

perceive after consideration,” “to ascertain by study or
 

calculation,” and “to determine after a judicial inquiry.”
 

Therefore, subsection 11 requires the Court of Appeals, upon
 

reviewing the record provided by the trial court, to
 

“discover,” “ascertain,” or “determine” whether the trial
 

court had a substantial and compelling reason for departing
 

from the guidelines. This is the entire scope and function of
 

the Court of Appeals inquiry. Nothing in the statutory text
 

requires the Court of Appeals to “find” that the trial court
 

would have departed and departed to the same degree on the
 

basis of a substantial and compelling reason, as the majority
 

would require. The Legislature provided only that the Court
 

of Appeals must determine for itself whether the trial court
 

articulated at least one substantial and compelling reason for
 

departing from the guidelines, and we are bound by that
 

legislative provision. The majority’s creation of an
 

extratextual remand inquiry renders subsection 11 superfluous
 

and usurps legislative authority.
 

Further, as a practical matter, the majority’s approach
 

will force the Court of Appeals to remand innumerable cases to
 

the trial courts for resentencing or rearticulation. In any
 

5
 
case in which the Court of Appeals is not comfortable with its
 

ability to divine the workings of the mind of the sentencing
 

judge, it will be forced to remand even though it finds that
 

a substantial and compelling reason justifies the departure.
 

This extreme level of inefficiency is not required by the
 

statutory text and will create needless additional work for an
 

already overburdened trial bench. To mitigate the effect of
 

the majority’s extratextual requirement, I strongly suggest
 

that every trial judge add the following disclaimer to the end
 

of every judgment of sentence:
 

I am persuaded that the defendant should serve


the sentence I have rendered and it is my intention


that this sentence be sustained if an appellate


court determines that any of my rationales for


departure survive review. 


Although this disclaimer is not required by the statutory
 

text, it is now functionally required by the majority’s
 

creation of a new remand inquiry.
 

Because I believe we are bound by the statutory language,
 

I would hold that a remand is only required under MCL
 

769.34(11) if the Court of Appeals, after reviewing the record
 

provided by the trial court, determines that there is not a
 

single substantial and compelling reason for departing from
 

the guidelines, as defined in MCL 769.34(3). 


Accordingly, I respectfully dissent in part from the
 

majority’s decision.
 

6
 
Maura D. Corrigan


Robert P. Young, Jr.
 

7 
 

___________________________________ 

v 

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, 

No. 121310 

GERALD LEE BABCOCK, 

Defendant-Appellee. 

CAVANAGH, J. (concurring in part and dissenting in part). 

I agree with the majority except to the extent it continues to utilize the definition 

of “substantial and compelling reasons” from People v Fields, 448 Mich 58; 528 NW2d 

176 (1995). Ante at 7-8. I remain committed to the Fields dissent and would not 

improperly impose limitations on the types of factors a sentencing court may consider. 

In Fields, this Court addressed “substantial and compelling reasons” necessary 

for departure under the controlled substance act, then in effect, and stated that “only 

those factors that are objective and verifiable may be used to judge whether substantial 

and compelling reasons exist.” Fields at 62. The Fields dissent conducted an 

exhaustive review of the case law interpreting “substantial and compelling,” as used in 

the statute at issue, and the Legislature’s intent in enacting the statute. The dissent also 
examined the plain language of the statute at issue and pointed out that the Legislature 

did not specify any limit on the types of factors the sentencing court may consider. 

Fields at 99 (CAVANAGH,J., dissenting). The Legislature only specified that the reasons 

for a sentencing departure must meet the substantial and compelling threshold. Id. 

There is nothing in the language of the statute or the legislative history limiting a 

sentencing judge’s consideration to only “objective and verifiable” factors. Therefore, 

a sentencing court should consider all the factors and circumstances surrounding an 

individual case. 

Additionally, what rises to the level of substantial and compelling is clearly 

subjective. “It relates to this defendant and to this sentencing judge, who is examining 

this individual and this offense.” Id. at 104 (emphasis in original). Thus, the weighing 

of all the factors and circumstances before the sentencing court includes inherently 

subjective inquiries. 

Further, as was discussed at length in the Fields dissent, the “objective” 

limitation is unworkable. See, e.g., Id. at 95-96, 101-102, 103-104, 105-106. There are 

certain factors, such as a defendant’s remorse or a defendant’s family support, that 

may be considered objective by one sentencing judge and subjective by another. The 

dissent in Fields stated, “[t]he better test is whether the sentencing judge is satisfied 

that the nature and extent of the defendant’s remorse [or family support] are 

substantial and compelling reasons to support a sentencing departure.” Id. at 105. I 

remain committed to the position that the “objective” criteria utilized by this Court is 

unworkable. 

Therefore, while I agree with the remainder of the majority opinion, I must 

2
 
dissent to the extent this Court continues to employ the Fields “objective” definition of 

“substantial and compelling reasons.” 

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. 121310
 

GERALD LEE BABCOCK,
 

Defendant-Appellee.
 

WEAVER, J. (dissenting in part and concurring in part).
 

I dissent from the majority’s result and opinion and
 

would affirm the Court of Appeals decision. I dissent because
 

(1) I continue to believe that the phrase “a substantial and
 

compelling reason” does not limit the trial court to
 

considering only factors that are “objective and verifiable”
 

and (2) I agree with the standard for remand articulated by
 

the Chief Justice in her partial dissent rather than with the
 

majority’s remand analysis. I concur only in (1) the
 

majority’s basic recognition that the language of MCL
 

769.34(3) requires the court to state on the record a
 

substantial and compelling reason for departing from the
 

guidelines and (2) the majority’s refinement of the abuse of
 
discretion standard. 


First, pursuant to the legislative sentencing guidelines,


 A court may depart from the appropriate


sentence range established under the sentencing


guidelines set forth in [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 that departure. All of the following apply to


a departure:
 

(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,


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).]
 

While I concur in the majority’s basic recognition that the
 

language of the statute requires the trial court to state on
 

the record “a substantial and compelling reason” for its
 

departure from the sentencing guidelines, I dissent from the
 

rest of the majority’s analysis. The language of the statute
 

is plain and unambiguous, and the majority’s excessive
 

interpretation of this language, which is clear on its face,
 

is unnecessary.
 

Second, I agree with the standard for remand articulated
 

by the Chief Justice in her partial concurrence and partial
 

2
 
dissent, rather than with the majority’s remand analysis. MCL
 

769.34(11) provides:


 If, upon a review of the record, the court of


appeals finds the trial court did not have a


substantial and compelling reason for departing


from the appropriate sentencing range, the court


shall remand the matter to the sentencing judge or


another trial court judge for resentencing under


this chapter.
 

Pursuant to this language, a remand to the trial court is only
 

required “if the Court of Appeals, after reviewing the record
 

provided by the trial court, determines that there is not a
 

single substantial and compelling reason for departing from
 

the guidelines, as defined in MCL 769.34(3).” Ante at 7.
 

Further, as the Chief Justice notes, the majority’s approach
 

will, as a practical matter, “force the Court of Appeals to
 

remand innumerable cases to the trial courts for resentencing
 

or rearticulation” and “will create needless additional work
 

for an already overburdened trial bench.” Ante at 6.
 

Consequently, I agree with the Chief Justice that the
 

majority’s opinion functionally requires at the end of every
 

judgment of sentence the disclaimer she articulates. 


Third, I continue to believe that a “substantial and
 

compelling reason” does not limit the trial court to
 

considering only factors that are “objective and verifiable.”
 

Rather, I continue to subscribe to the position articulated in
 

my dissent in People v Daniel, 462 Mich 1, 22-23; 609 NW2d 557
 

3
 
(2000), that all relevant factors, not only those that are
 

objective and verifiable, should be considered when
 

determining whether there is a substantial and compelling
 

reason to depart from the sentencing guidelines. 


Fourth, I concur with the majority’s refinement of the
 

abuse of discretion standard. Ante at 19-24. The abuse of
 

discretion standard, as previously articulated in Spalding v
 

Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), was so
 

exaggerated that it unreasonably limited appellate court
 

review.
 

Sentencing a defendant for the crime committed is a
 

discretionary act. As recognized by the majority, “the trial
 

court is optimally situated to understand a criminal case and
 

to craft an appropriate sentence for one convicted in such a
 

case.” Ante at 21. Consequently, a considerable degree of
 

deference should be afforded the trial court. Today, the
 

majority provides a reasonable definition of that deferential
 

standard:
 

At its core, an abuse of discretion standard


acknowledges that there will be circumstances in


which there will be no single correct outcome;


rather, there will be more than one reasonable and


principled outcome. When the trial court selects
 

one of these principled outcomes, the trial court


has not abused its discretion and, thus, it is


proper for the reviewing court to defer to the


trial court’s judgment. An abuse of discretion
 

occurs, however, when the trial court chooses an


outcome falling outside this principled range of
 

4
 
outcomes. [Ante at 22-23 (citations omitted).] 


I emphasize that according to this standard, the trial court
 

does not abuse its discretion if it selects a different
 

principled outcome than the reviewing court would have chosen
 

from the range of principled outcomes. 


Applying the principles discussed herein to the facts of
 

this case and considering all relevant factors, I would
 

conclude that the trial court did not abuse its discretion in
 

departing downward from the sentencing guidelines. The trial
 

court offered the following reasons for its departure: (1) the
 

probation agent recommended probation, (2) abuse of the victim
 

by her uncle and separation from her grandmother caused a
 

great part of the harm suffered by the victim, (3) defendant’s
 

original attorney recommended probation, (4) correspondence
 

from defendant’s brother’s special-education teacher and from
 

defendant’s brother’s attorney indicated that defendant was
 

the caregiver for his brother, who suffers severe disability
 

because of cerebral palsy and mental retardation, and (5) a
 

letter from defendant’s physician indicated that defendant has
 

a herniated disc in his back. The articulation of these
 

factors satisfies the requirement that the trial court
 

articulate a substantial and compelling reason on the record
 

for its downward departure. Moreover, the trial court’s
 

decision did not venture beyond the range of principled
 

5
 
outcomes under the circumstances. Therefore, the trial court
 

did not abuse its discretion, and the judgment of the Court of
 

Appeals should be affirmed.
 

Elizabeth A. Weaver
 

6