People v. Claypool

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
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 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

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 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 v

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

 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 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 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 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

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 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

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 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

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 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. 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

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 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).