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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KENNEDY L. WADE, Defendant-Appellant.

UNPUBLISHED December 19, 2000

No. 213430 Wayne Circuit Court LC No. 94-009283

Before: Wilder, P.J., and Holbrook, Jr., and McDonald, JJ. PER CURIAM. Following a jury trial, defendant was convicted of possession of 225 or more but less than 650 grams of cocaine, MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii), and sentenced to ten to twenty years in prison. Defendant appealed his conviction and the prosecutor filed a crossappeal challenging defendant's sentence on the ground that the trial court abused its discretion in deviating from the twenty-year mandatory minimum sentence without substantial and compelling reasons for doing so. This Court affirmed defendant's conviction, reversed defendant's sentence and remanded for further proceedings in an unpublished, per curiam opinion. People v Wade, unpublished opinion per curiam of the Court of Appeals, issued February 27, 1998 (Docket No. 190318). Specifically, this Court held that the trial court "abused its discretion in finding that defendant's employment record and support of his children provided substantial and compelling reasons to depart from the mandatory minimum sentence of twenty years for defendant's conviction offense." Id. at slip op p 4. On remand, the trial court resentenced defendant to twenty to thirty years in prison for his conviction. Defendant appeals as of right. We affirm. Defendant contends that the trial court abused its discretion in sentencing him to a minimum of twenty years in prison because he presented substantial and compelling reasons to deviate below the mandatory minimum sentence provided in the statute. We disagree. MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii) provides in pertinent part: (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv), and:

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*** (ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years. Notwithstanding this mandatory minimum sentence, MCL 333.7403(3); MSA 14.15(7403)(3), provides, in pertinent part: The court may depart from the minimum term of imprisonment authorized under subsection (2)(a)(ii), (iii), or (iv) if the court finds on the record that there are substantial and compelling reasons to do so. A defendant's sentence must "be proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). A statutory minimum sentence imposed by the Legislature is presumed to be proportionate and valid. People v Williams, 189 Mich App 400, 404; 473 NW2d 727 (1991). A trial court may depart below a mandatory minimum sentence if there are substantial and compelling reasons to do so. Only objective factors that are capable of verification may be used to assess whether there are substantial and compelling reasons to deviate from the minimum term of years imposed by the Legislature. People v Daniel, ____ Mich ____; ____ NW2d ____ (Docket No. 113647, issued 5/2/00), slip op p 5; People v Fields, 448 Mich 58, 77; 528 NW2d 176 (1995). Sentencing judges should deviate from mandatory minimum sentences only in exceptional cases. Id. Examples of objective and verifiable factors that may be considered in deviating from a minimum sentence include the defendant's prior record, age, work history, cooperation with law enforcement, and other factors arising after the defendant's arrest. Fields, supra at 77. Emphasis should also be placed on any mitigating circumstances surrounding the offense. Id. at 76. However, subjective factors such as a defendant's remorse or his effort to "turn himself around" are not proper factors for the trial court's consideration in deviating from a mandatory minimum sentence. Daniel, supra at slip op pp 7-8; People v Johnson (On Remand), 223 Mich App 170, 174; 566 NW2d 28 (1997). At defendant's initial sentencing, the trial court found substantial and compelling reasons to depart from the mandatory minimum sentence, stating as follows: The defendant here has a prior record, which certainly goes against him, and the prior record is for a similar offense. The only other factors that possibly could qualify would be his employment. And, there is some question even as to that. He's married and I suspect that that should have some affect on the sentencing as he has four children that he is responsible for supporting. He don't have

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