People v. Fields , 448 Mich. 58 ( 1995 )

Brickley, C.J.

In this case we are called upon to decide what constitute substantial and compelling reasons under MCL 333.7401(4); MSA 14.15(7401)(4) to deviate from the minimum sentences imposed by the Legislature. We decide that only those factors that are objective and verifiable may be used to judge whether substantial and compelling reasons exist, and thereby uphold the basic tenets of the test announced by the Court of Appeals in People v Hill, 192 Mich App 102; 480 NW2d 913 (1991). The trial court in this case used both objective and subjective factors to determine that a deviation from the ten-year minimum sentence was appropriate. Consequently, we vacate the sentence imposed and remand to the trial court for the determination whether, in considering only those factors that are objective and verifiable, there are substantial and compelling reasons to sentence this defendant to a term of years below the statutory minimum.

i

The defendant, Warren Perry Fields, pleaded guilty of one count of possession with intent to deliver more than 50 but less than 225 grams of cocaine. MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). The Legislature has prescribed a minimum sentence of ten years in prison for this crime. It also, however, has empowered courts to depart from some of the minimum sentence prescriptions under certain circumstances. MCL 333.7401(4); MSA 14.15(7401)(4) provides:

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.

After accepting the defendant’s plea, the court heard arguments on a request by the defense that the judge depart below the statutorily imposed minimum sentence. After listening to statements from both sides on the issue, the judge applied People v Troncoso, 187 Mich App 567; 468 NW2d 287 (1991), and decided to depart from the statutory minimum. The judge summarized his reasons for departure as follows:

• I’m satisfied that the basis for my deviating from the mandatory 10-year is that you’re a young man of 24 years of age and you have no prior record. I’m also satisfied — standing alone obviously wouldn’t matter but you just were over the 50 gram mark, the 54 grams.^[1] This appears to be, based upon the record, your only involvement that can be established.

You had a good job for over five years with a good work record, and I’m taking into consideration the extreme remorse that I see from you. You are devastated by this. You’ve admitted your guilt, and you’ve accepted your responsibility.

You’ve got family[,] friends and co-workers, as evidenced by the letters, indicate you do — are a person capable of rehabilitation. I think you have a potential for rehabilitation, and I’m satisfied that your motivation to help others, although totally in some respects outbalanced, at least it indicates that you’re not a cold, callous drug dealer out to profit solely for your own benefit.

The judge then deviated from the ten-year minimum, sentencing the defendant to a prison term of five to twenty years. The plaintiff appealed, and the Court of Appeals remanded for resentencing, citing Hill, supra, which had been decided as the appeal was pending. The defendant then appealed to this Court.

II

A

In 1978, the Legislature considered a bill to change the penalties imposed on controlled substance offenders. The legislative history of the bill indicates that it. was intended to combat an increase in drug-related crime. The House Legislative Analysis stated:

Some persons claim that the state has failed to stem drug traffic because the penalties for drug dealing are not severe enough, and law enforcement tools are inadequate. They contend that the potential for profit in drug dealing is so great that Michigan’s present penalties pose little or no deterrent to would-be violators, with lenient probation and parole policies weakening the threat of imprisonment still further. [House Legislative Analysis, HB 4190, Third Analysis, May 17, 1978.]

The legislative analysis summarizes arguments advanced by both supporters and opponents of the bill. One argument advanced in support of the bill was summarized,

The severe penalties imposed by the bill would have an important deterrent effect on illicit drug dealing. With the present drug penalties and parole possibilities, dealers feel that if caught they will spend little or no time in prison. The risk to them seems relatively small, and the potential for profit great. Consequently, only more severe penalties and the certainty of punishment will serve to deter would be violators. [Id.]

In order to combat this problem, the Legislature decided to impose harsh minimum sentences for drug dealers. The law went into effect September 30, 1978.

Ten years later, the Legislature passed several amendments to the original statute, reducing the minimum sentences imposed. These amendments also included the addition of §7401(4), which allowed a trial judge to deviate from minimum sentences Set out in the statute if there were substantial and compelling reasons to do so. According to the Senate Fiscal Agency, the bill’s supporters argued that

by allowing judges to depart from the minimum terms, and reducing the minimum for larger quantities, the bill would moderate what has been an uncompromising law and would give judges greater flexibility in making sentencing decisions based on the individual circumstances of a case. [Senate Fiscal Agency Analysis, SB 598, 600, 603, 610, Third Analysis, August 29, 1988.]

The House Legislative Analysis added,

The bill would make for a law that was strict without unduly interfering with judicial discretion. [House Legislative Analysis, SB 277 (Substitute H-2), First Analysis, December 16, 1987.]

In 1989, the Legislature amended the law again, in order to return the minimum sentences for larger quantities to their original, longer lengths. 1989 PA 143. Section 7401(4) was left unchanged.

B

The words "substantial and compelling” caused almost immediate conflict in the lower courts. In People v Downey, 183 Mich App 405; 454 NW2d 235 (1990), the Court of Appeals panel analyzed several sentences that deviated from the statutory minimum. The panel concluded that judicial discretion under the statute was "very limited,” and set strict standards for what kinds of reasons could be considered substantial and compelling. Central to those standards was the requirement that only objective factors capable of verification could be used to justify departure from the statutory minimum. The Court also held that only factors that existed before the defendant was arrested could be considered objective. Id. at 415-416.

In People v Krause, 185 Mich App 353; 460 NW2d 900 (1990), the Court of Appeals affirmed the "objective and verifiable” requirement set forth in Downey. The Court defined objective and verifiable factors as those "actions or occurrences which are external to the minds of the judge, defendant and others involved in making the decision . . . [that are] capable of being confirmed.” Krause at 358. The Court in Krause also modified the Downey test, by allowing trial judges to use both prearrest and postarrest factors. It warned, however, that postarrest factors should be used with caution because of the risk that defendants will create postarrest events to influence the sentencing judge. Krause, supra at 358-359.

Judge Griffin dissented in Krause, arguing that as long as the factors used to deviate from the statutory minimum were substantial and compelling, it should not matter whether they were objective and verifiable. He noted that neither the statute, the relevant legislative history, nor the common meaning of the words substantial and compelling even hinted at a subjective/objective dichotomy, and accused the Court in Downey of creating hurdles not intended by the Legislature. Id. at 363-365.

Judge Griffin later used his dissenting opinion in Krause as the basis for his majority opinion in Troncoso, supra. Troncoso created a split in the case law, which was resolved by Hill, supra.² In Hill, the Court upheld the standard enunciated in Krause. Judge Griffin wrote a strong dissenting opinion, again restating his arguments in Troncoso.

hi

A

Statutes should be interpreted according to the common and approved usage of any undefined words within them. MCL 8.3a; MSA 2.212(1). Webster’s New World Dictionary, Third College Edition defines "substantial,” in relevant part, as, "2 real; actual; true; not imaginary 3 strong; solid; firm; stout 4 considerable; ample; large 5 of considerable worth or value; important . . . .” It defines "compelling,” in relevant part, as, "irresistibly or keenly interesting, attractive, etc.; captivating

From these definitions it is evident that the words "substantial and compelling” constitute strong language. The Legislature did not wish that trial judges be able to deviate from the statutory minimum sentences for any reason. Instead, the reasons justifying departure should "keenly” or "irresistibly” grab our attention, and we should recognize them as being "of considerable worth” in deciding the length of a sentence.

The legislative history of MCL 333.7401; MSA 14.15(7401) supports this interpretation of the words substantial and compelling. By passing MCL 333.7401; MSA 14.15(7401), the Legislature hoped to keep drug dealers in prison for long periods, both .to remove them from society and to deter others from following their example. House Legislative Analysis, HB 4190, Third Analysis, May 17, 1978. See also Hill, supra at 116-117. In this context "substantial and compelling” cannot acquire a meaning that would allow trial judges to regularly use broad discretion to deviate from the statutory minimum. Such an interpretation would defeat the intent of the statute. Rather, it is reasonable to conclude that the Legislature intended "substantial and compelling reasons” to exist only in exceptional cases.

It is true that the legislative history of the 1988 amendments indicates that § 7401(4) was meant to allow judges some flexibility in sentencing under the formerly rigid law. The legislative analyses consistently mention a desire to "moderate” an "uncompromising” law through judicial discretion.³ However, the Legislature will be presumed under established rules of statutory construction to have intended that its amendments of a statute be construed in connection and in harmony with the other provisions of the statute. Williams v Secretary of State, 338 Mich 202, 207; 60 NW2d 910 (1953). The moderating effect of the 1988 amendments should therefore be read in light of the overarching intent of the Legislature to deter people from committing drug-related crimes.

We believe that the best method of maintaining the limited but moderating effect intended by the Legislature is to uphold the "objective and verifiable” test recently approved by the Court of Appeals in Hill, supra. This test allows judges to consider many of the factors traditionally utilized in formulating sentences. It also provides sufficient restrictions to assure that the Legislature’s intent in passing the statute will not be subsumed by the use of what is intended to be an exception to the rule of long mandatory sentences.

B

We respect the opinion, voiced by Judge Griffin in Troncoso, that these are judicially concocted boundaries not contemplated by the Legislature or in the definitions of the words themselves. Troncoso, supra at 574. This is undoubtedly true to some extent. Nevertheless, we agree with the majority in Hill that the Troncoso standard does not adequately reflect the Legislature’s intent to keep drug dealers off the streets and to deter others from following their paths. House Legislative Analysis, HB 4190, Third Analysis, May 17, 1978.

Furthermore, the subjectivity of the Troncoso standard makes appellate review of sentencing departures under the statute more difficult, and thus impairs the right of prosecutors to appeal.⁴ An appellate court cannot review whether the defendant has expressed remorse, or if he has a desire to help others, factors cited by the trial judge in this case.

For these reasons, we believe that the intent of the Legislature is better served by giving the words "substantial and compelling” a more specifically defined meaning. As the Court of Appeals remarked in Hill, supra at 118:

We find that if trial judges can use factors that are both subjective and not verifiable, they would have freedom to depart from the mandatory minimum for almost any reason they choose to use and they would hold in their hands the power to defeat the legislative purpose at will, subject only to review for abuse of discretion and lack of proportionality under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), the same standards that apply to sentences that are not mandatory. If one wishes to argue that judges ought to have such greater discretion, the argument should be addressed to the Legislature and not to the appellate courts.

To leave the definitions of substantial and compelling to the discretion of the sentencing court therefore belies the legislative purpose in enacting a presumptive sentencing statute. People v Brown, 184 Mich App 722, 723-724; 439 NW2d 38 (1990). In approving the objective and verifiable test, we hope to make it easier for both trial and appellate courts to sentence and review respectively within the perimeters that the Legislature intended.⁵

c

For additional guidance in regard to the meaning of the words "substantial and compelling,” we look to other jurisdictions that use these words to govern departures from presumptive sentences set by a state legislature. Several state legislatures and courts that have defined and interpreted this language in the sentence departure context have limited its meaning to exclude subjective factors.

The Washington Legislature has created a system of presumptive sentences, or sentencing guidelines. See Wash Rev Code Ann 9.94A.010 et seq. These guidelines require that if a judge departs from the presumptive sentence, the judge must list substantial and compelling reasons for the departure. Wash Rev Code Ann 9.94A. 120(2). In the statute, the Washington Legislature provides several examples of mitigating reasons that may be used to justify a downward departure from the guidelines. The great majority of these examples consist of circumstances surrounding the offense.⁶

Although there is a split in authority, the Washington appellate courts have been moving toward an interpretation of their state’s guidelines under which only objective factors could be used to justify a downward departure from a presumptive sentence. In State v Hodges, 70 Wash App 621; 855 P2d 291 (1993), the Court of Appeals of Washington considered whether to affirm a downward departure on the basis of several subjective factors. The court noted:

An exceptional sentence is appropriate only when the circumstances of the crime distinguish it from other crimes of the same statutory category. . . . The [1981 Sentencing Reform Act’s] sentencing guidelines must be applied "equally to offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous record of the defendant.” RCW 9.94A.340. [lid. at 624. Citations omitted.]

The court then concluded that " 'departure is warranted only if objective factors common to the crime (as opposed to subjective factors relative to a particular defendant) are present.’ ” Id. at 625.⁷

The departure provisions in Oregon’s sentencing guidelines are similar to Washington’s. The sentencing judge may not depart from a presumptive sentence under Oregon law unless he finds substantial and compelling reasons to do so on the record. Or Admin R 253-08-001.⁸ The Legislature in Oregon, like Washington, has provided a nonexclusive list of reasons that may be used to justify a downward departure from the guidelines. Most of these examples involve circumstances surrounding the oifense.⁹

Oregon’s appellate courts have also suggested that only objective factors should be used to justify a departure from that state’s sentencing guidelines.

To assist sentencing courts in determining whether substantial and compelling reasons exist, OAR 253-08-002(1) provides a list of aggravating and mitigating factors .... The examples in the commentary to the rule show that the factors permit consideration of the circumstances of a particular crime, which might be different from what was envisioned by the legislature when it established the presumptive sentence for that crime. If the court relies on a factor listed in OAR-253-08-002(1), its reasons for applying the rule must show that the case before it involves that sort of circumstance. The court must provide the same kind of explanation if it relies on factors not expressed in OAR 253-08-002. [State v Wilson, 111 Or App 147, 150-151; 826 P2d 1010 (1992).]

It should also be noted that the Oregon courts look to the decisions of the Washington courts to help interpret their sentencing guidelines. State v Kennedy, 113 Or App 134; 831 P2d 712 (1992).

The legislature in Kansas has also passed sentencing guidelines that contain a departure provision utilizing the phrase, "substantial and compelling reasons.” The Kansas Sentencing Guidelines Act only went into effect on July 1, 1993, and, consequently, the Kansas state courts have not yet developed a body of case law interpreting the meaning of the phrase, "substantial and compelling reasons.” There are indications, however, that Kansas will also interpret this language to require that objective factors be used to justify a departure from the guidelines.

One such indication is that because of similarities between the two states, Oregon’s sentencing guidelines served as perhaps the most influential model for the Kansas Legislature in constructing its guidelines. Moreover, the guidelines system implemented explicitly embraced retribution and incapacitation as the principal reasons for punishment and imprisonment. Thus, the crime of conviction, rather than the nature of the offender, has become the primary determinant of the sentence. Gottlieb, Kansas adopts sentencing guidelines, 6 Fed Sent Rptr 158 (1993). Finally, as the Washington and Oregon Legislatures, the Kansas Legislature has provided the courts of that state with a nonexclusive list of mitigating factors. The listed factors, without exception, encompass circumstances surrounding the offense.¹⁰

Although there are differences between these statutes and the statute at issue in this case, we think that the way the words "substantial and compelling” have been interpreted in the sentence departure context by other courts and legislatures serves as persuasive authority in regard to the most natural meaning of this language in this area of the law. Craig v Larson, 432 Mich 346, 356; 439 NW2d 899 (1989). That foreign jurisdictions have concentrated on circumstances surrounding the offense committed and excluded subjective factors from their interpretations reinforces our belief that our Legislature had a similar intention in referring to substantial and compelling reasons in MCL 333.7401(4); MSA 14.15(7401)(4).

iv

A

In order to refine and further clarify the test announced today, we make the following observations. First, in evaluating whether a case presents substantial and compelling reasons to depart below the mandatory minimum, courts should place particular emphasis on mitigating circumstances surrounding the offense. For example, in People v Bates, 190 Mich App 281, 282-283; 475 NW2d 392 (1991), the trial court found that the defendant’s only participation in the crime had consisted of providing transportation for the seller, and that his involvement was not for financial profit. It is appropriate for a sentencing judge to assign this type of fact situation considerable weight in deciding whether to depart from the statutory minimum. These kinds of circumstances, which fall short of warranting a finding of innocence but render the defendant less culpable, are often especially compelling because of the possibility that the Legislature did not consider this type of behavior when it set the statute’s harsh minimum sentences.¹¹_

Second, we approve of the short, nonexclusive list of factors set forth in Downey and Hill, for the purpose of evaluating whether a departure from the mandatory minimum is warranted. Those factors were identified as (1) the defendant’s prior record, (2) the defendant’s age, and (3) the defendant’s work history.¹² Downey, supra at 414-415.

Third, we overrule the notion from Krause, supra, that factors that arise after the defendant’s arrest are disfavored. These factors should be assigned the same weight as preexisting factors such as age or employment history. Moreover, the defendant’s cooperation with law enforcement officials should be given special attention by the sentencing court. Such assistance enables the authorities to more effectively fight drug-related crime, thus advancing the fundamental goal of MCL 333.7401; MSA 14.15(7401). House Legislative Analysis, HB 4190, Third Analysis, May 17, 1978. We note that the federal sentencing guidelines allow courts to depart below statutory minimum sentences under similar circumstances, as do the sentencing laws of several states. See, e.g., 18 USC 3553(e); USSG § 5K1.1; Idaho Code 37-2732B(8); Or Admin R 253-08-002(1)(a)(F).

Finally, we hold that the existence or nonexistence of a particular factor is a factual determination for the sentencing court to determine, and should therefore be reviewed by an appellate court for clear error. People v Legg, 197 Mich App 131, 134; 494 NW2d 797 (1992); People v Harvey, 203 Mich App 445; 513 NW2d 185 (1994). The determination that a particular factor is objective and verifiable should be reviewed by the appellate courts as a matter of law. A trial court’s determination that the objective and verifiable factors present in a particular case constitute substantial and compelling reasons to depart from the statutory minimum sentence shall be reviewed for abuse of discretion.

B

In order to give further guidance regarding the meaning of "substantial and compelling” within the context of MCL 333.7401(4); MSA 14.15(7401)(4), we cite with approval the following cases from the Court of Appeals. In Harvey, supra, the Court affirmed a trial judge’s departure from the statutory minimum. The defendant in Harvey had no prior record at the age of thirty-three and had been steadily employed at General Motors for fourteen years. He had strong family support and had been on a tether program for about a year before sentencing where he was, in the words of the trial court, an exemplary probationer.¹³ We find the combination of the age and employment history of the defendant in this case to be especially noteworthy. Although courts often cite the young age of a defendant as a reason to deviate from a minimum sentence, a person who has advanced to middle age with a clean slate and a solid career may also present a compelling case for deviation, as someone with a proven capacity to live within the bounds society has set.

In People v Shinholster, 196 Mich App 531; 493 NW2d 502 (1992), the Court of Appeals found that substantial and compelling reasons existed to depart from the minimum statutory sentence. The defendant, at age thirty-six, had a prior record that included only an eleven-year-old conviction for the possession of marijuana, a history of steady employment, and strong family support. In addition, the 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 from the statutory minimum.

In People v Poppa, 193 Mich App 184; 483 NW2d 667 (1992), the defendant argued that substantial and compelling reasons' existed for a departure from the statutory minimum. He pointed to his extensive cooperation with law enforcement officials, and the defendant’s assertion that part of the problems the defendant had been having at the time of his arrest were the result of his recent emigration from Romania and his difficulty adjusting to his newfound freedoms. The Court held that the trial court had acted within its discretion in not finding a sufficient basis to depart from the minimum.

We find that these cases correctly implemented the requirements of the test we approve and modify today. As the appellate courts of this state continue to work with and refine this test, we believe it will become progressively easier to evaluate what are and are not substantial and compelling reasons under the statute. In fact, we view the existence of a body of appropriately decided case law to be a distinct advantage to our affirmation of the Downey-Krause-Hill test.

V

In applying these principles to the present case, we note that at the defendant’s sentencing hearing the trial judge listed several reasons for deviating from the statutory minimum. These reasons were not all objective and verifiable as we have now defined those terms. The judge considered in his analysis that the defendant had expressed "extreme remorse,” that he had accepted responsibility for his actions and was devastated by their results, and that he was motivated to help others. These factors, while acceptable under Troncoso, we now find to be inappropriate.

However, the trial judge also listed several factors that are appropriate under the standard we announce today, including the defendant’s age, his solid work record, and the fact that the defendant had no prior contact with the criminal justice system.

Sentencing normally is not a job for the appellate court, the usual procedure being to send the case back to the trial judge for resentencing if it is found that the sentence is in some respect deficient. People v Earegood, 383 Mich 82; 173 NW2d 205 (1970). It is unclear whether the trial judge in this case would have found substantial and compelling reasons to deviate from the statutory minimum solely on the basis of objective and verifiable factors.

Therefore we remand the case to the trial court for the judge to determine whether, under the standard announced today, he finds substantial and compelling reasons to deviate from the statutory minimum. In all other respects, the decision of the Court of Appeals is affirmed.

Boyle, Riley, and Mallett, JJ., concurred with Brickley, C.J.

[1] 1 The statute provides for a sentence of ten years for the possession with intent to deliver 50 grams or more but less than 225 grams of any mixture containing cocaine. MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). The defendant possessed 54.07 grams of a cocaine-based mixture at the time of his arrest.

2 Hill was decided by a thirteen-judge special panel, under Administrative Order No. 1990-6, 436 Mich lxxxiv. Hill was a seven to six decision.

3 See, e.g., House Legislative Analysis, SB 598, First Analysis, February 17, 1988; Senate Fiscal Agency Analysis, SB 598, 600, 603, 610, First Analysis, January 27, 1988; and Senate Fiscal Agency Analysis, SB 598, 600, 603, 610, Third Analysis, August 29, 1988.

4 MCL 770.12; MSA 28.1109, see, generally, People v Milbourn, 435 Mich 630, 644; 461 NW2d 1 (1990).

5 Although we emphasize that a finding of substantial and compelling circumstances should be the exception and not the rule, it should also be noted that this is not a threshold that is meant to be impossible to reach. This would defeat the intent of the Legislature in § 7401(4) to moderate this otherwise uncompromising statute. People v Shinholster, 196 Mich App 531, 534; 493 NW2d 502 (1992).

6 The statute provides:

(a) To a significant degree, the victim was an initiator, willing participant, aggressor, or provoker of the incident.

(b) Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage or injury sustained.

(c) The defendant committed the crime under duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.

(d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.

(e) The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, was significantly impaired (voluntary use of drugs or alcohol is excluded).

(f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.

(g) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

(h) The defendant or the defendant’s children suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse. [Wash Rev Code Ann 9.94A.390.]

7 The one Washington case that has held that subjective factors may constitute substantial and compelling reasons was overruled by the Washington Supreme Court on other grounds. That court did not reach the issue whether substantial and compelling reasons could be subjective. State v Friederich-Tibbets, 123 Wash 2d 250; 866 P2d 1257 (1994). The reasoning of the Court of Appeals panel in Friederich-Tibbets has been criticized by Hodges, supra at 625, and State v Alexander, 70 Wash App 608, 617, n 12; 854 P2d 1105 (1993). See also State v Amo, 76 Wash App 129, 134; 882 P2d 1188 (1994). (Washington courts have consistently declined to impose exceptional sentences below the standard range in the absence of factors or circumstances related to the defendant’s commission of a crime that make the commission of the crime less egregious.)

8 Judges may in certain circumstances sentence a defendant to probation rather than prison without finding substantial and compelling reasons. Instead, in these circumstances, the judge is required to make several specific findings that indicate that the defendant is more suited to a probationary sentence. Or Admin R 253-05-006.

9 The statute provides:

(1) Subject to the provisions of sections (2) and (3) of this rule, the following nonexclusive list of mitigating and aggravating factors may be considered in determining whether substantial and compelling reasons for a departure exist:

(a) Mitigating factors:

(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction;

(B) The defendant acted under duress or compulsion (not sufficient as a complete defense);

(C) The defendant’s mental capacity was diminished (excluding diminished capacity due to voluntary drug or alcohol abuse);

(D) The offense was principally accomplished by another and the defendant exhibited extreme caution or concern for the victim;

(E) The offender played a minor or passive role in the crime;

(F) The offender cooperated with the state with respect to the current crime of conviction or any other criminal conduct by the offender or other person. The offender’s refusal to cooperate with the state shall not be considered an aggravating factor;

(G) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense;

(H) The offender’s criminal history indicates that the offender lived conviction-free within the community for a significant period of time preceding his or her current crime of conviction;

(I) The offender is amenable to treatment and an appropriate treatment program is available to which the offender can be admitted within a reasonable period of time; the treatment program is likely to be more effective than the presumptive prison term in reducing the risk of offender recidivism; and the probation sentence will serve community safety interests by promoting offender reformation. [Or Admin R 253-08-002.]

10 The statute provides:

(b)(1) Subject to the provisions of subsection (b)(3), the following nonexclusive list of mitigating factors may be considered in determining whether substantial and compelling reasons for a departure exist:

(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.

(B) The offender played a minor or passive role in the crime or participated under circumstances of duress or compulsion. This factor is not sufficient as a complete defense.

(C) The offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed. The voluntary use of intoxicants, drugs or alcohol does not fall within the purview of this factor.

(D) The defendant, or the defendant’s children, suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.

(E) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.

(3) If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the crime severity scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime. [Kan Stat Ann 21-4716.]

11 The nonexclusive lists of mitigating factors drawn up by legislatures in foreign jurisdictions such as Washington, Oregon, and Kansas to help interpret their departure statutes support us in this regard. See part iii(C) of this opinion. It should be noted that the burden of proof is on the defendant to show the existence of any-mitigating circumstances surrounding the offense from an independent and reliable source.

12 "The facts of the crime that mitigate the defendant’s culpability,” were also mentioned as an approved factor. Hill, supra at 110.

13 The defendant in Harvey was put on probation as a result of a less serious offense committed in the same transaction as the one at issue in that case.