People v. Daniel

¶1I dissent from the majority opinion because I continue to subscribe to the position articulated by Judge Griffin in his dissenting opinion in People v Hill, 192 Mich App 102; 480 NW2d 913 (1991), which I joined. I believe that all relevant factors, not only those that are objective and verifiable, should be considered when determining whether there are substantial and compelling reasons to depart from the mandatory minimum sentence to be imposed for a drug offense. Consequently, I would modify People v Fields, 448 Mich 58; 528 NW2d 176*23(1995), to the extent that it prohibits all relevant factors from being considered and requires a remand whenever subjective factors are considered. However, while permitting subjective factors to be considered, I would also recognize, as did the dissent in Hill, that it is doubtful that subjective factors, standing alone, would be sufficient to establish substantial and compelling reasons for departure.1 Further, I would emphasize that sentencing judges do not possess unfettered discretion to depart from the mandatory minimum sentence. It is presumed that the mandatory minimum sentence is appropriate, and I would expect that substantial and compelling reasons for departure would be found only in very exceptional cases.

¶2In this case, in explaining its reasons for departure, the sentencing court referred to the following factors: defendant’s potential for rehabilitation, the protection of society, the disciplining of the wrongdoer, the deterrent effect of punishment, defendant’s age, defendant’s cooperation with police, defendant’s strong family support, and defendant’s remorse. Because the sentencing court clearly considered a preponderance of objective and verifiable factors in conjunction with the subjective factor of remorse, I would affirm defendant’s sentence.

Although a sentencing judge should not be limited to consideration of sentencing factors that are both “objective” and “verifiable,” I recognize that conduct that may be so characterized may prove to be the most substantial and compelling. I would expect “substantial and compelling reasons” to be found only in exceptional cases, and I doubt that “subjective” considerations, standing alone, will prove to be substantial and compelling. [Hill, supra at 124.]