Opinion
Docket No. 153492.
Submitted February 1, 1994, at Grand Rapids.
Decided August 1, 1994, at 9:20 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey L. Sauter, Prosecuting Attorney, and William M. Worden, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Penny R. Beardslee), for the defendant on appeal.
Defendant pleaded guilty of possession with intent to deliver 225 grams or more but less than 650 grams of heroin, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), in exchange for the prosecutor dismissing the charge of conspiracy to deliver more than 225 grams or more but less than 650 grams of heroin and agreeing to a minimum sentence of no more than ten years. Defendant was sentenced to the statutory mandatory minimum prison term of ten years, with a thirty-year maximum term. Defendant appeals as of right. We affirm.
On appeal, defendant argues that the trial court erred in failing to depart from the mandatory minimum term of imprisonment. Defense counsel had argued at defendant's sentencing for a downward departure from the mandatory minimum term, because defendant was subject to deportation. The trial court determined that defendant's impending deportation did not constitute a substantial and compelling reason to depart from the mandatory minimum prison term. Defendant now argues that the fact that he, most assuredly, will be deported constitutes an objective and verifiable factor that provides a substantial and compelling reason for the trial court to depart from the mandatory minimum prison term.
Under MCL 333.7401(4); MSA 14.15(7401)(4), a sentencing court retains discretion to depart from the minimum term if the court finds on the record that there are substantial and compelling reasons to do so. People v Poppa, 193 Mich. App. 184, 188; 483 N.W.2d 667 (1992). The trial court may depart from the mandatory minimum sentences for factors that are objective and verifiable. People v Hill, 192 Mich. App. 102, 105; 480 N.W.2d 913 (1991). Objective and verifiable factors include "actions and occurrences which are external to the minds of the judge, defendant and others involved in making the decision and must be capable of being confirmed." People v Krause, 185 Mich. App. 353, 358; 460 N.W.2d 900 (1990).
Although the imminent deportation of a defendant is certainly an action that is external to the mind of a judge and is capable of being confirmed, we believe that it is not an objective and verifiable factor to consider in determining whether substantial and compelling reasons exist to depart from the mandatory minimum sentence. The Legislature intended to give trial courts discretion to depart from the presumptively mandatory sentences only in exceptional cases. People v Downey, 183 Mich. App. 405, 416; 454 N.W.2d 235 (1990). The trial court's discretion thus is narrowed to considering only the mitigating reasons involved in the actual criminal act and the defendant's individual characteristics. We believe that the fact that defendant is subject to deportation as a result of his involvement in this criminal act fits neither of these factors. See United States v Alvarez-Cardenas, 902 F.2d 734, 737 (CA 9, 1990).
In addition, we find that defendant's sentence does not violate the principle of proportionality as set forth in People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990). Because defendant's sentence was within the statutory minimum term in effect at the time of his sentencing, his sentence is presumptively valid and proportionate. People v Williams, 189 Mich. App. 400, 403-404; 473 N.W.2d 727 (1991); Poppa, supra, p 189. Defendant has failed to rebut this presumption. We conclude, therefore, that the trial court did not abuse its sentencing discretion. Poppa, supra, p 187.
Affirmed.
SAWYER, J. concurred.
I concur in the result. Only in the most extreme circumstances could a refusal to exceed the guidelines range, or to refuse to sentence below the guidelines range, be error. This sentence does not violate the principle of proportionality as set forth in People v Milbourn, 435 Mich. 630; 462 N.W.2d 1 (1990). I believe, however, that the fact that the defendant will be deported as a result of the instant conviction may (not must) be considered by the sentencing court. Why should our taxpayers be required to feed, house, clothe, and provide medical care for the defendant for an extra four or five years — in our overcrowded prison systems — when upon release he will be deported?