_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

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-six5

 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 the issue is moot. See Crawford v Dep’t 

of Civil Service, 466 Mich 250, 261; 645 NW2d 6 (2002)

(“‘An issue is moot where 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-six12 “‘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 everincreasing 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 intent 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. BACKGROUND 

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 lawabiding 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 BOYLE 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 casein-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 determined 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. THE VALIDITY OF THE ENTRAPMENT DEFENSE 

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. SENTENCING ENTRAPMENT OR ESCALATION AND OUR LEGISLATIVELY 

MANDATED SENTENCING SCHEME 

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 changed 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. APPLICATION 

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. CONCLUSION 

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 

Daniel1

 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 socalled “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. CONSIDERATION OF POLICE CONDUCT 

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 CORRIGAN in her dissenting 

statement in People v Maffett2 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 CORRIGAN 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. INTENT IS NOT AN “OBJECTIVE” FACTOR 

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 Fields4 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 Washington1

 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).