**_______________________________** Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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 is described as sentencing manipulation, sentencing entrapment, or sentencing**  **escalation. These doctrines are based 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 precipitating cause altered a defendant’s intent, that altered intent can be considered by the**  **sentencing judge as a ground for a downward sentence departure. 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 grams for $4,000. 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**  **The offense carries a statutorily mandated minimum sentence of ten**  **years of imprisonment. 2**  **However, according to the legislative sentencing guidelines and the former MCL**  **333.7401(4), 3**  **the statutorily mandated minimum ten-year sentence for this offense can be reduced or “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-six 5**  **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 by making repeated purchases for increasing quantities of cocaine and that, by doing so, they**  **“escalated” the sentence to which defendant would be subjected. 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 that the officer had legitimate law enforcement reasons for the 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 court’s view, defendant had been**  **“escalated” and precluded from getting substance abuse treatment earlier. 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 who otherwise would have remained a lesser criminal. 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), “three of the four** 

**6 Unpublished opinion per curiam, issued October 18,**  **2002 (Docket No. 238984).**

6**justices in the majority agreed that [escalation] was a permissible factor to consider . . . .” Slip op at 2 n 3.**  **7 This Court granted the prosecutor leave to appeal. We**  **framed the issues on appeal as whether “sentencing manipulation” or “escalation” is a**  **substantial and compelling reason justifying a downward departure from a statutorily imposed mandatory minimum**  **sentence, and whether a trial court may consider the legislative sentencing guidelines recommendation when**  **determining the degree of a departure, which has already been determined to be supported by substantial and**  **compelling reasons. [468 Mich 944 (2003).] [8]** 

**7 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 81 -**  **82.**

**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 ever be a**  **substantial and compelling reason for a departure 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). Statutory interpretation is subject to**  **review de novo.** People v Phillips **, 469 Mich 390, 394; 666 NW2d 657 (2003). A trial court’s decision that a**  **particular factor is sufficiently substantial and compelling for a departure is reviewed for an abuse of**  **discretion.** Babcock **,** supra **at 269-270.**

**III. ANALYSIS**  **In Michigan, the Legislature has established sentencing guidelines. See MCL 769.31**  et 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. See** Babcock **,** supra **at 263-264. In cases involving controlled substances,** 

**on this issue, and t he issue is moot. See**  Crawford v Dep’t of Civil Service **, 466 Mich 250, 261; 645 NW2d 6 (2002) (“‘An issue is moot wher**  **e 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 and compelling reason” for the departure. This Court has determined that this 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, 67 -**  **68.**

**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** this **offense. As** Babcock **said after discussing the roots of our nation’s attachment to the**  **concept of proportionality in criminal sentencing: “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.”** 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 to consider at sentencing. Police misconduct, standing alone, tells us nothing about the**  **defendant. However, if the defendant has an enhanced intent that was the product of police conduct or any other**  **precipitating factor, and the enhanced intent can be shown in a manner that satisfies the requirements for a**  **sentencing departure as outlined in** Babcock **, it 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** 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.”**  Babcock **,** supra **at 258 (emphasis in original). Moreover, a trial court must articulate on the**  **record a substantial and compelling reason why its** particular **departure was warranted.** Id **. at 259-260. 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 a downward departure.”**

12**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-six 12**  **“‘keenly’ or ‘irresistibly’ grab[] our attention.”**  Babcock **,** supra **at 257-258, quoting** Fields, supra **at 67. 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.**  Id **. at 260 -**  **261. 13**  **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. On remand, defendant may argue any factor**  **left 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 for resentencing in this case. However, the Chief Justice**  **disagrees with part of our 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. This is all to say that the**  **trial court cannot 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. See** People v Mass **, 464 Mich 615, 627; 628 NW2d 540 (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 a particular amount was in fact sold is**  **sufficient to convict the accused of delivery of that amount under the statute. 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 not be considered for the purpose of**  **conviction. Yet, we are not doing that. We are considering the defendant’s intent for the purpose of**  **sentencing. It seems obvious that the sentencing stage is different from the trial stage. Indeed, the latitude for**  **the trial court in sentencing to consider things inadmissible at trial can be found in the Legislature’s**  **requirements of what a presentence report can contain. 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**  16**encyclopedic grant allows the consideration of matters broader than those matters already before the court at**  **trial, because if it did not, the statute would be conveying no greater authority than that previously**  **possessed. Such a construction of the 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. The Court stated:**  **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**_______________________________ 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. 122696**  **DEON LAMONT CLAYPOOL, Defendant-Appellee.** 

**CORRIGAN, C.J. (** concurring in part and dissenting in part) **. Although I agree with the result of the majority’s**  **decision, I cannot agree with its analysis. Any sentencing departure that endorses an inherently subjective factor**  **such as the defendant’s inten t cannot 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.**  **B ACKGROUND**  **The concepts 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**  **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 persuaded that ‘sentencing entrapment may be legally relied upon to depart under the 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.’” Staufer, supra at 1106, citing United States v Stuart, 923 F2d 607, 614**  **(CA 9, 1991).**

2 **v In Michigan, the concept of sentencing entrapment or**  **escalation was first approved in** People v Shinholster **, 196 Mich App 531; 493 NW2d 502 (1992). In**  Shinholster, **the Court of Appeals approved of**  **the consideration of sentencing “escalation” in departing from a mandatory**  **minimum sentence, holding that among those factors authorizing a departure was “that the government’s actions—**  **although not rising to the level of entrapment—purposefully escalated the crime.”**  Id. **at 535. The theory of “escalation” was again discussed in**  People v Ealy, **222 Mich App 508; 564 NW2d 168 (1997). In** Ealy **, the defendant argued that “the police committed sentencing entrapment by wrongfully inducing him to**  **participate in transactions involving escalating amounts of cocaine and exposing him to greater penalties.”**  Id **. at 510.**  **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 law**   ** abiding 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.** Id **. at 510 -**  **511. 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.”** Id **. at 511. The only precedent from this 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. The effect of the entrapment defense is to**  **absolve of responsibility those whose conduct the Legislature has deemed criminal, and the effect of**  **sentencing entrapment or escalation is to partially absolve of responsibility those whose conduct the Legislature has** 

1 **Justice B OYLE**  **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 to lessen or eliminate the defendant’s intent. This is no different**  **than the application of the entrapment defense before trial. Evidence regarding the nature and extent of**  **defendant’s intent is only a proper subject for the case**   ** in-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 d**  **etermined 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 as an end-run around the Legislature’s decision. 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. T**  **HE V**  **ALIDITY OF THE E**  **NTRAPMENT D**  **EFENSE 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. Once a “defendant has engaged in conduct constituting all the elements of a**  **criminal offense, as defined by the Legislature,” 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. To do so runs afoul of settled principles of statutory interpretation as well as**  **principles of separation of powers.** Id. **at 895-896. Sentencing entrapment or escalation is no different.**  **Once a defendant has committed an offense that the Legislature has determined requires a certain minimum**  **punishment, this Court lacks any authority to 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.** Id. **at 897-898. Just as “[t]he assignment of criminal**  **responsibility is undeniably a matter of substantive law” reserved for the Legislature,**  id. **at 898, so is the allocation of criminal punishment. For this 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. S**  **ENTENCING E**  **NTRAPMENT OR E**  **SCALATION AND O**  **UR L**  **EGISLATIVELY M** 

**ANDATED S**  **ENTENCING S**  **CHEME 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 c hanged 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.”** Id. **at 257-258. Although the majority attempts to conform to the**  **legislative requirements by requiring objective 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 how a person’s subjective intent can ever be**  **considered objective or verifiable. “Intent” is defined as “the state of a person’s mind**  **that directs his or her actions toward an objective.”** Random House Webster’s College Dictionary **(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. Subjective intent or**  **motivation cannot satisfy** Babcock **, no matter how “objectively” the defendant presents his version of the**  **state of his mind. 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.** Ante **at 17. The majority also opines that such latitude is evident 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. Given the response to**  Blakely **, it appears likely that the issue of mandatory minimum**  **sentences will need to be settled. See Laurie P. Cohen and Gary Fields,**  High-Court Ruling Unleashes Chaos Over Sentencing **, The Wall Street Journal, July 14, 2004. Given the lack of any definitive statement by the United States**  **Supreme Court regarding mandatory minimum sentences, I believe that sweeping statements of broad judicial**  **authority, like those quoted above, may serve only to borrow trouble. The majority’s broad 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. A**  **PPLICATION 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. Former MCL 333.7401(4) provided that the court could 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 finding of sentencing entrapment or escalation here was based solely on the trial court’s subjective**  **assessment of the defendant’s 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. C**  **ONCLUSION The judicially created entrapment defense and the**  **concepts of sentencing entrapment and escalation have no valid legal foundation. Reviewing a defendant’s subjective**  **intent at sentencing 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, thus, cannot be considered objective and verifiable. Therefore, departures**  **based on the concept of sentencing entrapment or escalation violate**  **the statutory requirements for**  **a sentencing departure.**  **Maura D. Corrigan**

13**_______________________________ 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. 122696**  **DEON LAMONT CLAYPOOL, Defendant-Appellee.** 

**CAVANAGH, J. (** concurring in part and dissenting in part **). I agree with the majority’s conclusion that a**  **sentencing judge may consider whatever individualized factors the judge believes are relevant. 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 recommended**  minimum **sentences, such as we have in Michigan. Moreover, I tend to agree with the lead opinion’s ultimate rationale.**  **The lead opinion notes that sentencing entrapment and sentencing manipulation are distinct theories. 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 simply**  **affirm the decision of the Court of Appeals. The trial court stated on the record that the downward departure was**  **based on substantial and compelling reasons that were objective and verifiable. 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 resulted in escalating the**  **seriousness of the offenses of which defendant was convicted. This fact is verified in the PSIR . . . .”**  **Unpublished opinion per curiam, issued October 18, 2002 (Docket No. 238984), p 3. Because I 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 _______________________________**  **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. 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 Daniel 1 **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 Supreme Court’s decision in**  Blakely v Washington **, 542 US ___; 124 S Ct ___; ___L Ed 2d ___ (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** **_______________________________ 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. 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 espoused by the majority——that a defendant’s so**  **** **called “altered intent” may constitute an objective and verifiable factor that may be considered in departing from**  **a statutorily mandated minimum sentence——is directly contrary to the principles this Court so 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. C**  **ONSIDERATION OF P**  **OLICE C**  **ONDUCT Although the majority states that police misconduct,**  **standing alone, is not an appropriate factor to consider at sentencing, it nevertheless allows consideration of any**  **police conduct that can be “objectively and verifiably shown” to have “altered a defendant’s intent.”**  Ante **at 1 -**  **2. I believe that this is an internally inconsistent**  **holding and that it constitutes an expansion of the substantive defense of entrapment, a judicially created**  **defense that I believe is violative of the doctrine of separation of powers and therefore invalid for the reasons**  **expressed by Chief Justice C ORRIGAN**  **in her dissenting statement in**  People v Maffett **2 and her opinion dissenting in**  **part in the instant case. Not only does the majority’s holding permit the 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 hallmark of the traditional entrapment defense.**  **3 Moreover, I agree with**  **Chief Justice C ORRIGAN**  **that the rejection of a legislatively mandated sentence requirement based on a court’s ad hoc**  **assessment of police conduct impermissibly usurps both legislative and executive authority. See**  post **at 6-8.**

**II. I**  **NTENT IS N**  **OT AN “O**  **BJECTIVE ” F**  **ACTOR Under former MCL 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 Fields **4 definition of “substantial and compelling**  **reason”: a reason that is both objective and verifiable and that “‘keenly’” or “‘irresistibly’” grabs the court’s** 

**3 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. Although the**  **majority does not dispute that intent 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, 15-16. Thus, the majority presents two hypothetical examples in which evidence, other than the**  **defendant’s own representations as to his intent, 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** . **Again,** Babcock **requires that the** factor itself **be both objective and verifiable. The majority, however, takes the view that if there is an**  **objective and verifiable** showing **of the existence of a factor,**  Babcock **is satisfied. 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. I cannot subscribe to the**  **majority’s sub silentio repudiation of the** Babcock **requirement of objectivity. Accordingly, on remand, I would preclude the trial**  **court from considering as a proper sentencing 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 _______________________________**  **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. 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 Washington **1 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 oral argument.**  **Marilyn Kelly**

**1 542 US ___; 124 S Ct ___; ___ L Ed 2d ___ (2004).**