(concurring). I agree with Chief Justice Riley that the trial judge did not rely upon the defendant’s lack of remorse to support the sentence imposed, and I therefore concur in the result of this case.1 I write separately, however, to *720express my disagreement with the analysis of the "lack of remorse” issue in the lead opinion.
The opinion of Justice Archer rests on a distinction between two concepts: a defendant’s continued refusal to admit his guilt and a defendant’s lack of remorse. The lead opinion deems the former to be an improper sentencing consideration, while approving a court’s consideration of the latter. Such a distinction is, however, illusory, since the finding that the defendant in this case was unremorseful rested solely on his continued assertions of innocence.
When sentencing the defendant, the trial judge stated:
Although you deny the offense, Mr. Wesley, a jury found you guilty of the offense. There were three witnesses that testified that you did it. One of the problems here that I see as far as any kind of rehabilitation is concerned, is that you do not feel you have a problem in this area and, therefore, any kind of rehabilitation or counseling would have to be on some sort of a forced effort. Because, if you don’t believe you have a problem, which is your position, and you have a right to take that position, the hope of recovery or rehabilitation, however one wants to put it, diminishes, in my opinion, and makes the situation a difficult situation. If you believe you don’t need counseling, then it has a negative impact on any counseling that’s required by the court. [Emphasis added.]
This excerpt makes clear that the sentencing judge viewed defendant’s failure to admit guilt as the basis for the finding of a lack of remorse and, thus, a low likelihood of rehabilitation.
The lead opinion quotes with approval the rule from People v Yennior, 399 Mich 892; 282 NW2d *721920 (1977), that "[a] court cannot base its sentence even in part on a defendant’s refusal to admit guilt.” However, the continued validity of this well-established principle is, in light of the instant decision, unclear, since, after citing Yennior, the lead opinion goes on to ignore it. For example, it distinguishes "defendant’s failure to appreciate the detrimental effect of his sexual actions, as opposed to his failure to admit guilt.” {Ante, 716.) However, it fails to explain how a defendant who denies that the alleged sexual actions ever took place can "appreciate” their detrimental effect. The lead opinion thus merely declares that a distinction exists between consideration of remorse and consideration of continued declarations of innocence, without explaining the distinction or how appellate courts should discern it in the future.,
The lead opinion would adopt a test to determine whether a sentencing judge relied on a defendant’s failure to admit guilt, ante, 713:
While this Court has never specifically addressed the issue, in determining whether sentencing was improperly influenced by defendant’s failure to admit guilt, the Court of Appeals has focused upon three factors: (1) the defendant’s maintenance of innocence after conviction, (2) the judge’s attempt to get the defendant to admit guilt, and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe. See, e.g., People v Gray, 66 Mich App 101; 238 NW2d 540 (1975); People v Grable, 57 Mich App 184; 225 NW2d 724 (1974); People v Fleming, 142 Mich App 119, 127; 369 NW2d 499 (1985). Under the Court of Appeals analysis, if there is an indication of the three factors, then the sentence was likely to have been improperly influenced by the defendant’s persistence in his innocence. If, however, the record shows that the court did no more than address the factor of remorseful*722ness as it bore upon defendant’s rehabilitation, then the court’s reference to a defendant’s persistent claim of innocence will not amount to error requiring reversal. See, e.g., People v Gray, supra; People v Stubbs, 99 Mich App 643; 298 NW2d 612 (1980); People v Camon, 110 Mich App 474; 313 NW2d 322 (1981), lv den 414 Mich 859 (1982); People v Pottruff, 116 Mich App 367; 323 NW2d 402 (1982), lv den 414 Mich 924 (1982); People v Ross, 145 Mich App 483; 378 NW2d 517 (1985).
There are a number of troubling aspects to this excerpt. First and foremost, this Court has indeed "addressed the issue” of the propriety of a sentencing court’s consideration of a defendant’s failure to admit guilt. While our decision in Yennior was peremptory, it, as quoted supra, addressed the issue in no uncertain terms. In addition, by reversing the Court of Appeals decision in Yennior, this Court looked beyond the first two factors of the three-part test defined by the lead opinion today, since in that case the defendant, having made no comment at sentencing concerning his guilt or innocence, did not affirmatively "maintain his innocence” (as required by the first factor), and the Court of Appeals, in the decision we reversed, explicitly held that the sentence was proper because at sentencing "the court made no attempt to elicit an admission of guilt from defendant” (as required by the second factor) 72 Mich App 35, 43; 248 NW2d 680 (1976).2 Had this Court in Yennior *723agreed that the first two factors urged for adoption by the lead opinion today were controlling, there would have been no need to reverse in that case.3
The effect of the lead opinion’s position would be that sentencing judges may not impose a higher sentence on the basis of a defendant’s continued refusal to admit his guilt, but may do so by finding a lack of remorse solely on the basis of that refusal. If a manageable distinction exists in such a scheme, it eludes me. The lead opinion’s view merely provides a talismanic phrase by which the principles of Yennior may be circumvented.
I also find unconvincing the lead opinion’s citation of MCL 771.14; MSA 28.1144. It is axiomatic *724that judges will look generally to a defendant’s antecedents, character, and circumstances. The question in this case is whether a particular factor may be considered. In previous cases it has been determined that certain factors may not be considered, although part of a defendant’s antecedents, e.g., convictions obtained in violation of the right to counsel, People v Moore, 391 Mich 426; 216 NW2d 770 (1974); polygraph information, People v Towns, 69 Mich App 475; 245 NW2d 97 (1976).
The lead opinion’s reliance on the presentencing report is also unpersuasive. First, the mere presence of an improper sentencing consideration in the presentence report does not convert it into a properly considered factor. More important, however, is the fact that the presentence report contains no reference to defendant’s lack of remorse. Of course, if the trial court did not rely on defendant’s lack of remorse in determining sentence, as Chief Justice Riley and I contend, we need not decide if it is a proper consideration. However, if it was relied upon, reference to proper considerations, e.g., the information in the presentence report which was also relied upon, will not cure the impropriety. Yennior states that "[a] court cannot base, its sentence even in part on a defendant’s refusal to admit guilt.” (Emphasis added.)
This element of the lead opinion is confusing. It seems to view the trial court’s reliance on other grounds for the length of the sentence as a distinction between a failure to admit guilt and a failure to show remorse. This mode of analysis can also be discerned early in the opinion where it is correctly noted that "the trial court made clear when stating its reasons for exceeding the sentencing guidelines that defendant’s assertion of innocence was not the reason for imposing the harsh sentence.” (Ante, 711.) The lead opinion fails to note, how*725ever, that a review of the trial court’s remarks makes it equally clear that it also did not rely upon defendant’s lack of remorse. The lead opinion, therefore, argues that the reference to defendant’s lack of remorse is not improper since it was not relied upon. If it is genuinely believed that the challenged remarks of the sentencing judge were not relied upon, then it should be concluded that the propriety of those remarks need not be considered. However, once the propriety of the remarks is reached, reliance must be presumed, and the lead opinion must, as it has failed to do, enunciate a practical distinction between a reference to a lack of remorse and a reference to a failure to admit guilt.
I would, of course, allow a sentencing judge to consider those factors which fall within the rubric of remorselessness, but which exist apart from a defendant’s continued assertions of innocence. For example, where a defendant admits his guilt, it is proper for the sentencing judge to consider a lack of remorse. Similarly, where a defendant admits certain facts which, while insufficient to convict, indicate wrongful action, the judge may consider defendant’s lack of remorse regarding the admitted facts.4 It would also seem appropriate to consider a defendant’s callousness or indifference to the plight of the victim, even if he continues to maintain his innocence. However, nothing in the record in this case indicates that defendant’s lack of remorse was anything other than a refusal to admit guilt.
In the hopefully rare situation where a defendant has been wrongly convicted, the decision in *726this case would compound the injustice visited upon such a defendant by further punishing him for his assertions of innocence. As stated in the Court of Appeals Yennior dissent:
[Ijnducing an assertedly innocent defendant to admit guilt and pressuring, albeit indirectly, a defendant to express remorse for a crime whose perpetration he denies are but two sides of the same coin. [72 Mich App 47.]
Finally, the decision urged by the lead opinion would raise a new and even more difficult question, i.e., if a defendant "shows remorse” after conviction in order to obtain a shorter sentence and later wins a retrial, may his statements at sentencing be admitted as evidence against him at his new trial? If so, defendants would, at allocution, find themselves with a Hobson’s choice: to refuse to admit guilt would result in a longer sentence, but to admit guilt would destroy any hope of acquittal upon retrial. By ignoring Yennior, the lead opinion invites such a situation.
For all the above reasons, I disagree with the analysis of the lead opinion. However, since the trial judge stated with specificity his reasons for departing from the guidelines and the "lack of remorse” consideration was not among them, I concur in the result.
Levin, J., concurred with Brickley, J.Although Judge Caprathe began his remarks at sentencing by noting defendant’s lack of remorse, his full explanation of the reasons for the sentence imposed demonstrates that this observation was not taken into account. The judge twice listed "the reasons for my *720variance from the guidelines” and at neither time was defendant’s lack of remorse included.
It is also worth noting that the second factor looks only to a sentencing judge’s attempt to elicit an admission of guilt from a defendant, but the result of this opinion is that all defendants will be under pressure to admit guilt just as if the trial judge personally applied the pressure. As Judge Riley stated in her dissent in Yennior in the Court of Appeals:
Whether the pressure to admit guilt and show remorse flows directly from a judge’s badgering questions or obliquely from the subtle inducement of the present decision, the evil is the same. [Id. at 46.]
*723In addition, this factor begs the question, as it assumes rather than explains the existence of a workable distinction between a lack of remorse and a continued refusal to admit guilt, since it does not bar judicial pressure to “show remorse.”
The third factor defined by the lead opinion is also inadequate to decide the instant case since it merely states the holding of our decision in Yennior, i.e., that a sentence must be reversed where its length was in part based upon the defendant’s failure to admit guilt. The question now before us is whether that situation can be distinguished from the situation where it appears that had the defendant affirmatively shown remorse his sentence would not have been so severe.
The remarks of the sentencing judge in Yennior indicate that this is an impossible task:
"It is rather difficult for the court to relate to one in your position, Mr. Yennior, where you still deny that you committed the crime of which you have been convicted. The court doesn’t hold that against you. One of the things the court always seeks in determining disposition in criminal matters is the attitude of the accused with respect to whether they admit — how readily they admit they have done wrong. I can’t talk to you about that because you don’t admit it. That’s your prerogative. I don’t hold that against you, I just want to explain it, it makes it difficult.” [Id. at 43.]
Not only did the trial judge explicitly state that he was not relying on defendant’s failure to admit guilt (enough according to today’s lead opinion to uphold the sentence), but his remarks make clear that remorse means "the attitude of the accused with respect to whether [and] how readily they admit they have done wrong.” Thus, there is no tenable distinction between remorse and an admission of guilt.
Such was, in fact, the situation in two of the cases cited by the lead opinion as examples of cases in which the Court of Appeals has been able to distinguish a refusal to admit guilt from a lack of remorse. People v Ross, 145 Mich App 483; 378 NW2d 517 (1985); People v Stubbs, 99 Mich App 643; 298 NW2d 612 (1980).