
    PEOPLE v YENNIOR
    Opinion of the Court
    1. Criminal Law — Sentencing—Trial Judge — Convict’s Character —Report of Probation Officer — Statutes.
    A trial judge, when sentencing a convicted defendant, must try to utilize his discovery of the criminal character or conduct of such convict and the probation officer’s report on the antecedents, character and circumstances of the defendant in determining what sentence to impose (MCLA 771.1; MSA 28.1131).
    2. Criminal Law — Sentencing—Determination of Guilt — Fact-Finding Process.
    A trial court, at the sentencing of a convicted defendant, is bound by the earlier determination of guilt and it is error for the sentencing court to attempt to re-open the fact-finding process that a finding of guilt terminated.
    3. Criminal Law — Sentencing—Judge’s Statements — Lack of Remorse — Conditioning Leniency.
    It was not improper for a sentencing court to note, in response to a convicted defendant’s plea for probation, that the defendant had not accepted responsibility for the crime where a reading, in context, of the judge’s statements does not demonstrate that the court impermissibly conditioned leniency on the defendant’s admission of guilt.
    4. Criminal Law — Sentencing—Seriousness of Offense Committed.
    It is not improper for a judge, when sentencing a convicted defendant, to consider the relative seriousness of the offense of which the defendant was convicted.
    References for Points in Headnotes
    
       21 Am Jur 2d, Criminal Law § 527.
    
       21 Am Jur 2d, Criminal Law § 564.
    
       21 Am Jur 2d, Criminal Law § 571.
    Power of trial court to change sentence after commitment or payment of fine. 168 ALR 706.
    
      5. Criminal Law — Sentencing—Incarceration—Probation—Seriousness of Offense.
    Incarceration of a convicted defendant rather than probation is proper where the sentencing court finds that it would unduly depreciate the seriousness of the defendant’s oifense if a sentence of probation were imposed.
    Dissent by D. C. Riley, J.
    6. Criminal Law^ — Sentencing—Absence of Remorse — Disclaimer of Guilt.
    
      The absence of remorse in a convicted defendant who disclaims his guilt should be disregarded in passing sentence.
    
    
      7. Criminal Law — Sentencing—Resentencing—Different Judge— Absence of Remorse— Enhancement of Sentence.
    
      A convicted defendant’s case should be remanded for resentencing by a judge other than the one passing the original sentence where there is a distinct possibility that the defendant’s refusal to admit guilt and express remorse caused the court to enhance the sentence imposed.
    
    Appeal from Lapeer, Norman A. Baguley, J.
    Submitted June 17, 1976, at Detroit.
    (Docket No. 26115.)
    Decided October 20, 1976.
    Leave to appeal applied for.
    Larry Yennior was convicted of delivery of a controlled substance. Defendant appeals by leave granted.
    Affirmed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Edward B. Meth, Prosecuting Attorney, for the people.
    
      Faintuck, Shwedel, Roether, Wolfram & McDonald, for defendant.
    Before: R. M. Maher, P. J., and D. C. Riley and R. M. Ryan, JJ.
    
      
       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
    
   R. M. Maher, P. J.

Defendant, after a jury trial, was found guilty as charged on a count of delivery of a controlled substance, phencyclidine, MCLA 335.341(l)(b); MSA 18.1070(41)(l)(b). The court imposed a sentence of 14 months to 7 years imprisonment. This Court granted defendant’s application for delayed appeal, filed after the trial court denied defendant’s motion for a new trial or resentencing.

This appeal raises two questions: Did the court improperly consider the fact that defendant did not admit guilt when it imposed sentence? Did the court improperly ignore defendant’s antecedents, character and circumstances when it imposed sentence? An affirmative answer to either question would require that defendant be resentenced.

As trial courts frequently acknowledge, they are faced with few tasks as difficult as sentencing. Sentencing, quite often the last and most important contact a defendant has with the judicial system, is the most neglected stage of criminal proceedings.

"The dilemma of the American sentencing judge is qualitatively unique. Because our system of criminal justice has embraced to a degree unequaled elsewhere the rehabilitative ideal that punishment should fit not the crime, but the particular criminal, the sentencing judge must labor to fulfill the dual and sometimes conflicting roles of judge and clinician. Entrusted with enormous discretion, he is expected to 'individualize’ the sentence he imposes to suit the character, social history, and potential for recidivism of the offender before him. Yet, because of the general absence in our system of meaningful procedures for the appellate review of sentences, he is denied standards by which to determine any particular sentence or by which to learn what decisions his fellow judges have reached in similar situations.” Coffee, The Future of Sentencing Reform: Emerging Legal Issues in the Individualization of Justice. 73 Mich L Rev 1362, 1362-1363 (1975).

Very little guidance for sentencing courts can be found in the statutes and court rules. In MCLA 769.8; MSA 28.1080, the Legislature, as authorized by Const 1963, art 4, § 45, has directed sentencing courts to impose indeterminate sentences. The statute states that the sentencing judge "shall before or at the time of passing such sentence ascertain by examination of such convict on oath, or otherwise, and by such other evidence as can be obtained tending to indicate briefly the causes of the criminal character or conduct of such convict.” Similar vagueness is found in the statute requiring the probation department to provide the sentencing court with a presentence report. MCLA 771.14; MSA 28.1144 states that "the probation officer shall inquire into the antecedents, character and circumstances of such person [the defendant] * * * and shall report thereon in writing” to the sentencing court.

The sentencing court, then, must try to utilize his discovery of "the criminal character or conduct of such convict” and the probation officer’s report on "the antecedents, character and circumstances of such person” in deciding what sentence it shall impose. The court may choose probation, available in all but a few very serious crimes, "where it appears to the satisfaction of the court that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by. law.” MCLA 771.1; MSA 28.1131.

GCR 1963, 785.8 says nothing about the factors the sentencing court should consider. It properly limits itself to procedural matters, including the right of defendant and his lawyer "to advise the court of any circumstances they believe the court should consider in imposing sentence”.

While appellate courts have clearly stated the objectives of the indeterminate sentencing scheme, they have provided little or no guidance on how to best achieve the objectives of "rehabilitation of the individual offender, society’s need to deter similar proscribed behavior in others and the need to prevent the individual offender from causing further injury to society”, People v Lorentzen, 387 Mich 167, 180; 194 NW2d 827, 833 (1972). Whatever guidance appellate courts have provided has usually been in the form of a rebuke, pointing out what a court should not have considered when it exercised its sentencing discretion.

An instance of such guidance is People v Grable, 57 Mich App 184; 225 NW2d 724 (1974), in which a panel of this court stated:

"[W]e believe that an accused has the right to maintain his innocence after conviction. No additional penalty is to be imposed for continuing to proclaim one’s innocence.” 57 Mich App at 188-189.

The case was remanded for resentencing because defendant’s refusal to change his story at sentencing, despite questioning by the court, may have enhanced the sentence imposed. Grable, unfortunately, offers little analysis and cites no authority on what constitutes improper sentencing considerations.

In the recent case of People v Gray, 66 Mich App 101; 238 NW2d 540 (1975), defendant, as does defendant in the case now before us, relied on Grable in asserting that he was improperly sentenced. In Gray, this Court rejected the contention that it was error for the sentencing court to consider defendant’s lack of remorse. After pointing out that a presentence report informing the court of defendant’s "antecedents, character and circumstances” is required, the opinion observes that:

"It would seem that a defendant’s failure to express any remorse or regret at all concerning a prior conviction, or concerning his commission of a crime which he does not deny, would be a very relevant facet of his character. It may be noted by the probation officer. It may be taken into account by a sentencing court. We therefore hold that, if indeed the trial court did consider defendant’s lack of remorse in passing sentence, such was not error.” 66 Mich App at 110-111.

Defendant Gray had taken the stand at trial and offered a story inconsistent with guilt. The mention that he did not deny his crime should not be used to conclude that he acknowledged his guilt yet remained unremorseful.

In Gray, Grable was distinguished as a case in which the court attempted to get defendant to admit guilt and, failing in its attempt, enhanced his sentence. A broader reading of Grable would not be justified; the facts presented in Grable indicate that it was unnecessary for the court to decide whether, in all instances, it is improper for a sentencing court to give any consideration to whether a defendant áccepts responsibility or shows remorse for his crime.

The error requiring resentencing in Grable was the court’s attempt to reopen, at sentencing, the fact-finding process that a finding of guilt terminated. See People v Towns, 69 Mich App 475; 245 NW2d 97 (1976). At sentencing, the court is bound by the earlier determination of guilt. Questions directed to defendant concerning his involvement in the crime for which he has been convicted place defendant in a bind. If he cooperates and gives the answers the court obviously seeks, he may jeopardize his right to appeal or a motion for a new trial. Miler v United States, 255 A2d 497 (DC Ct of App, 1969). If he continues to assert his innocence in the face of questioning (we note that juries are not infallible, they are only conclusive), he runs the risk of encouraging a spiteful sentence. A good example of this second alternative is found in Poteet v Fauver, 517 F2d 393 (CA 3, 1975).

How a defendant views the criminal activity that his conviction has established can be helpful to a court that must evaluate a defendant’s "antecedents, character and circumstances”. We think there is more than semantics involved in distinguishing between properly giving consideration to remorse or its absence at sentencing and improperly penalizing an assertion of innocence at sentencing. In People v Bottany, 43 Mich App 375, 385; 204 NW2d 230 (1972), Justice (then Judge) Levin quoted from the concurring opinion of Judge Leventhal in Scott v United States, 135 US App DC 377, 395; 419 F2d 264, 282 (1969):

" 'It is not easy for me to define why I concur in a judgment of remand. There is a natural, and I believe sound, disposition to adjust sanctions when an offender admits his responsibility. This blends in with a readiness to accept the conclusion that such a person has the stuff that portends future improvement. I dare say that many judges, possibly the overwhelming majority, respond in this way, and I am not ready, at least as of this writing, to say that their approach is inadmissible. The wellsprings of human experience are known to every parent concerned with bringing up children, and who has invoked, consciously or not, Parson Weems’ account of George Washington and the cherry tree.

" 'What we have before us is the difference of degree that amounts to a difference in kind. There is a line between responding favorably to an individual’s sincere expression of remorse, and reacting in a hostile way because of a personal belief in the guilt of one who maintains his innocence and seeks review of the judgment.’ ” (Emphasis supplied.)

This view, of course, presents no justification for a court to harass a defendant into admitting criminal complicity at sentencing. An admission of guilt under pressure offers no insight into defendant’s character that would be helpful to the sentencing court. When a defendant is aware that his responses will determine his sentence, his admission cannot evidence contrition. It does not take a sophisticated knowledge of psychology to appreciate what Chief Judge Bazelon wrote in Scott v United States, supra, 135 US App DC at 384; 419 F2d at 271, "[W]ith the inducement of a lighter sentence dangled before him, the sincerity of any cries of mea culpa becomes questionable.”

In opinions of the Wisconsin Supreme Court, the distinction has been made between using an expression of remorse in mitigation of a sentence and considering a lack of remorse in sentencing. The former practice has been held permissible by the Wisconsin court, see State v Tew, 54 Wis 2d 361; 195 NW2d 615 (1972), McCleary v State, 49 Wis 2d 263; 182 NW2d 512 (1971), while the latter has been disapproved. Scales v State, 64 Wis 2d 485; 219 NW2d 286 (1974). We see no benefit in making this distinction. If it is permissible for a court to view expressions of remorse "as indicative of the likelihood that the rehabilitory process hoped for in the criminal law has commenced,” Scales v State, supra, 64 Wis 2d at 497; 219 NW2d at 293, why cannot a lack of remorse be considered in projecting the course the rehabilitory process will take. Certainly a court will note the absence of a factor which might, if it were present, encourage the court to impose a particular sentence.

At sentencing in the instant case, the court made no attempt to elicit an admission of guilt from defendant. After a lengthy plea from defendant’s attorney that the court grant defendant probation, the court offered defendant his right of allocution. Defendant simply responded: "I would like to be given a chance to show you.” The court then commented on the situation before it; it is from these comments that defendant draws his first claim of error.

The court, undoubtedly in response to counsel’s urging that probation be imposed, addressed defendant:

"It is rather difficult for the court to relate to one in your position, Mr. Yennior, where you still deny that you committed the crime of which you have been convicted. The court doesn’t hold that against you. One of the things the court always seeks in determining disposition in criminal matters is the attitude of the accused with respect to whether they admit — how readily they admit they have done wrong. I can’t talk to you about that because you don’t admit it. That’s your prerogative. I don’t hold that against you, I just want to explain it, it makes it difficult.”

This passage, seen in the context of counsel’s plea for probation and the absence of any questioning of defendant about his involvement in the crime for which he was convicted, does not indicate that the trial court improperly enhanced defendant’s sentence for refusing to admit guilt. Rather, it reflects sentiments akin to those Judge Leventhal spoke of in Scott v United States, supra. It displays an attitude as legitimate as the "natural * * * disposition to adjust sanctions when an offender admits his responsibility * * * a readiness to accept the conclusion that such a person has the stuff that portends future improvement”. We appreciate the court’s feeling that a plea for probation from a defendant who has not admitted responsibility presents a difficult sentencing situation for the court. Read in context, neither the court’s statement quoted above nor its similar statement at the hearing on defendant’s motion for resentencing demonstrate that the court impermissibly conditioned leniency on defendant’s admission of guilt. Rather, we think it clear that the court merely informed defendant that the factor of remorse or contriteness was not available to the court as it considered defendant’s request for probation. It was not improper for the court to note that defendant had not accepted responsibility for his crime.

We similarly find that defendant’s second issue does not merit remand for resentencing. Despite several mentions of "policy” in the court’s explanation of the sentence it imposed, we are not convinced that the court failed to exercise its discretion in fitting an indeterminate sentence "to the needs of the particular case and the requirements of society”. People v Lessard, 22 Mich App 342; 177 NW2d 208 (1970). The court, at the hearing on defendant’s motion for resentencing, explained that when he spoke of a "policy” he meant that all convictions for distribution of hard drugs are viewed as extremely serious cases, not that all persons convicted of distributing hard drugs are not dealt with individually. It is not improper to consider the relative seriousness of the offense in imposing sentence. See People v Shively, 45 Mich App 658; 206 NW2d 808 (1973). In Shively, this Court pointed out that the ABA Standards Relating to Probation (Approved Draft, 1970) in § 1.3a(iii), recognizes that incarceration rather than probation is proper where the court finds that " 'it would unduly depreciate the seriousness of the offense if a sentence of probation were imposed’ ”. In the court’s sentencing defendant to a rather brief period of incarceration, rather than probation, we find no error.

Affirmed.

R. M. Ryan, J., concurred.

D. C. Riley, J.

(dissenting). The majority seems to impart two, somewhat contradictory, lessons in the case at bar.

On one hand, the majority reaffirms its ostensive support of People v Grable, 57 Mich App 184; 225 NW2d 724 (1974), and on the other it cites with apparent approval People v Gray, 66 Mich App 101; 238 NW2d 540 (1975).

Grable held that a remand for resentencing by a different judge is warranted where a sentencing court "may have enhanced the sentence imposed” (Id. at 189) in response to a convicted defendant’s adamant, post-verdict proclamations of innocence:

"[W]e believe that an accused has the right to maintain his innocence after conviction. No additional penalty is to be imposed for continuing to proclaim one’s innocence. ” Grable, supra, at 188-189. (Emphasis added.)

In Gray, supra, a panel of this Court, interpreting Grable as factually inapposite, held that lack of remorse for an undenied crime may be taken into account at sentencing. If the facts in Gray clearly support such a proposition, I would not be dismayed by the holding; sadly, however, they do not. As the majority recognizes, defendant Gray at trial "offered a story inconsistent with guilt”. At sentencing, however, the trial court in Gray commented on the mention made by probation officials of Gray’s supposed lack of remorse without elaborating on how the probation authorities arrived at this conclusion. Despite the absence of documentation concerning Gray’s reported lack of contrition, this Court concluded that defendant Gray did not deny his guilt. Without the benefit of the probation report, I would not have reached the same conclusion quite so readily.

At any rate, it is clear that a defendant, who in fact admits his guilt yet eschews regret for his actions, reveals by his unrepentance a relevant facet of his character that can be considered at sentencing. It is quite another matter, however, to say that a defendant, who personally or through his counsel maintains his innocence even after a guilty verdict, should be penalized for failing to express remorse regarding a crime he denies committing. This is precisely the kind of "additional penalty” that Grable, supra, condemns. People v Towns, 69 Mich App 475, 479; 245 NW2d 97 (1976).

If as the majority suggests "[a]n admission of guilt under pressure offers no insight into defendant’s character that would be helpful to the sentencing court”, then the fact, rather than the source, of such pressure should be determinative. Whether the pressure to admit guilt and show remorse flows directly from a judge’s badgering questions or obliquely from the subtle inducement of the present decision, the evil is the same.

On reflection, it should be immediately apparent that inducing an assertedly innocent defendant to admit guilt and pressuring, albeit indirectly, a defendant to express remorse for a crime whose perpetration he denies are but two sides of the same coin. By its decision today, the Court bestows its imprimatur on, and thus encourages, the longstanding practice by which defendants, whether innocent or guilty, are motivated to appear contrite in the hope of reaping a lenient sentence. Why we should exalt such an unfortunate tactic to the level of doctrine escapes me completely.

Another disturbing aspect of the present decision is that, despite a laudable effort to clarify this muddled area, the majority perpetuates the confusion. At one point, the majority opinion indicates that a judge may "properly giv[e] * * * consideration to remorse or its absence at sentencing”. Yet later in the opinion we are told that a court may note "the absence of a factor which might, if it were present, encourage the court to impose a particular sentence”. There is more than a mere semantic difference between giving consideration to the absence of remorse and noting the absence of remorse as a factor to be disregarded in passing sentence. Without a clarification of its precise holding, the case at bar, rather than serving as a beacon to sentencing judges, enshrouds them in still greater darkness.

Assuming one accepts the more limited version of the majority’s holding, namely, that a judge may inform a defendant who is reluctant to admit guilt that remorse is not among the mix of factors to be weighed in passing sentence, the facts in the present case are illsuited to such a proposition. The lower court did more than merely relay this information to defendant. The following statement of the court below at the hearing on defendant’s motion for resentencing, taken together with the judge’s similar statement at sentencing, convinces me that the judge’s remarks were in essence thinly guised invitations to the defendant to recant his misdeed:

"I am sure you have heard before, we still have the situation where the defendant refuses to admit he is guilty. If ever a man is going to be rehabilitated effectively, the first thing he has got to do is say I am [guilty], admit it, and then I am sorry. We always run into a problem where somebody is convicted in the trial, if they pled guilty, then they are saying I am guilty, to go through the trial and still deny it afterward, then you have a problem then (sic). If you are guilty, why don’t they admit it, isn’t that the first step in rehabilitation, that is always a fact to be considered by the Court, and the attitude of the person toward the crime that was committed.” (Emphasis added.)

I believe that enhancing the defendant’s sentence because he declined the judge’s not so subtle invitations to admit guilt is just as egregious as the error found in Grable, supra. The absence of remorse in a convicted defendant who disclaims his guilt should be disregarded in passing sentence.

This does not mean, however, that an expression of contrition by a defendant who acknowledges his crime should be ignored by the sentencing court. Rather, a sentencing judge should strive to temper with a healthy skepticism "the natural tendency to adjust [the] sanctions” imposed on a repentant defendant. The courts should be leery of a defendant’s newfound, and possibly feigned, declarations of penitence. I trust that this state’s seasoned trial judges, having frequent opportunity to assess the credibility of persons appearing before them, will be able in most cases to distinguish the sincere from the contrived.

Before closing, one last point should be addressed. I agree with the majority that the lower court’s frequent reference to a "policy” concerning defendants convicted of drug delivery offenses was not improper once the judge explained that policy related to the gravity of such crimes and not to a refusal to individualize the sentences imposed. However, I would caution sentencing courts to refrain from the use of the term "policy” or phrases of like import in passing sentence because, as this case illustrates, such terms may engender the misimpression that the individualization of sentencing is a rule honored more in the breach than the observance.

I would remand this case for resentencing by a different judge because of the distinct possibility that defendant’s refusal to confess guilt and express remorse caused the court to enhance the sentence imposed. 
      
      
        Grable quotes portions of the transcript that indicate defendant’s sentence may have been based, in part, on the court’s belief that defendant lied at trial. It is improper to punish a defendant for the substantive offense of perjury without according him his right to trial. Scott v United States, 135 US App DC 377; 419 F2d 264 (1969); cf. People v Anderson, 391 Mich 419; 216 NW2d 780 (1974).
     