                             STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 1, 2018
               Plaintiff-Appellant,

v                                                                   No. 334824
                                                                    Wayne Circuit Court
GIOVANNI NACCARATO,                                                 LC No. 11-000851-01-FH

               Defendant-Appellee.


Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

GLEICHER, J. (dissenting).

        At issue is the reasonableness of a downwardly departing sentence. The majority holds
that the trial court failed to justify the extent of the departure by specifically invoking the
principles of proportionality. But this Court’s opinion in People v Walden, 319 Mich App 344,
355; 901 NW2d 142 (2017), permits us to affirm a departure sentence even absent a trial court’s
reference to any of the principles of proportionality. Walden counsels that a court’s “articulation
of departure reasons” suffices if the justification for the sentence “was appropriately directed to
proportionality principles, and . . . the reasonableness of the departure sentence imposed was
more than supported by the record.” Id.

       This is such a case. I would affirm.

                                                 I

        Defendant Giovanni Naccarato was originally sentenced in 2011, before our Supreme
Court decided People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), and People v
Steanhouse, 500 Mich 453; 902 NW2d 327 (2017) (Steanhouse II). In Steanhouse II, 500 Mich
at 471, the Supreme Court instructed that the “principle of proportionality” articulated in People
v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), governs departure sentences. The Court also
clarified that we “review[] the departure sentence . . . for an abuse of discretion informed by the
‘principle of proportionality’ standard.” Steanhouse II, 500 Mich at 476. Both elements of
Steanhouse are relevant here.

        Milbourn requires a sentencing court to exercise its discretion “according to the same
principle of proportionality that guides the Legislature in its allocation of punishment over the
full spectrum of criminal behavior.” Milbourn, 435 Mich at 651. A judge accomplishes this by
fashioning a sentence taking into account “the nature of the offense and the background of the

                                               -1-
offender.” Id. The principle of proportionality encompasses two central ideas: “the most severe
punishments” are properly reserved “for those who commit the most serious crimes,” and
“offenders with prior criminal records are likewise subject to harsher punishment than those with
no prior convictions[.]” Id. at 650. Lesser punishments are suitable for “those whose criminal
behavior and prior record are less threatening to society.” Id. at 651. The sentencing guidelines
incorporate this proportionality principle by “visit[ing] the stiffest punishment against persons
who have demonstrated an unwillingness to obey the law after prior encounters with the criminal
justice system.” Id. at 668.

        “[C]ompelling mitigating circumstances” must also factor into a proportionality analysis.
Id. at 653. A sentencing court properly exercises its discretion “by determining where, on the
continuum from the least to the most serious situations, an individual case falls and by
sentencing the offender in accordance with this determination.” Id. at 653-654. Post-Milbourn,
the Supreme Court identified as potential mitigating facts “(2) the defendant’s prior record, (3)
the defendant’s age, and (4) the defendant’s work history,” as well as “factors that arose after the
defendant’s arrest, such as cooperation with law enforcement officials.” People v Daniel, 462
Mich 1, 7; 609 NW2d 557 (2000). Crime-specific circumstances, too, may lessen culpability.
See People v Fields, 448 Mich 58, 76; 528 NW2d 176 (1995).

        During Naccarato’s first sentencing, Judge Margie Braxton extensively elucidated her
reasons for departing downward by imposing a sentence of probation rather than one within the
guidelines range of 51 to 85 months. Although the sentencing occurred six years before the
Supreme Court resurrected Milbourn’s proportionality principles, Judge Braxton’s reasoning
corresponds to them nicely. And the mitigating facts she referenced match those identified in
Daniel and Fields. The court weighed the circumstances of the offense and the offender,
concluding that although the offense was serious, Naccarato did not intend to hurt anyone. His
otherwise unblemished personal background figured prominently in the court’s mind, validating
that a prison sentence was not necessary to achieve any of the goals of punishment. Judge
Braxton also cited Naccarato’s age, his full restitution for those harmed by his crime, his strong
work history, and his efforts to avoid endangering anyone, all relevant to proportionality
principles:

       No prior convictions. And three years have passed [since the commission of the
       crime], no further convictions, no prior convictions, other than this charge, which
       is substantial. I am not trying to minimize it. It was a serious charge. A number
       of things could have happened.

             But I do have to give some credence to the fact that he still is gainfully
       employed and in quite a responsible position.

               The letter from his plant manager, engineering plant manager, spells out
       all the different things that he is required to do. And he indicates that he does
       them quite well. And he’s asking that this defendant be in a position to continue
       working for the Ford Motor Company.

              And of course, employability and it goes to whether or not this Court
       should depart, along with the age of the defendant never having any priors; no

                                               -2-
         priors a year and a half later. The fact that he is a family man and does have
         children to raise. And it looks like he raises them in a manner that he should. We
         have a letter from his church, St. Anselem and indicating that the involvement
         that his pastor has had with Mr. Naccarato and with his family for over twenty
         years.

                The probability for committing such a crime again, I think in counsel’s
         argument it would suggest that; and it did suggest that this is a crime of finance.
         And this Court does understand that quite often people are in financial strife, and
         they do many things under pressure such as he did.

                 The fact that the defendant had a six figure job, and it doesn’t matter what
         he made but many individuals are faced with the same type of situation whether
         they are working or not working. But this man has continued to work throughout
         and after all of this has happened, he has worked for Ford Motor Company for
         twenty years; he is a stable employee. And he’s a family man; he is raising his
         family.

                He has never had any priors; no priors since this incident.[1]

                 And certainly there would be intent to burn for financial gain. Because he
         was in dire financial straits. However, we do have to look at this from a common
         sense view. And not trying to minimize what it is that the defendant did; the acts
         that he committed, but he did in an attempt to make sure that no one was harmed,
         indicated to the tenants that the building was to be fumigated and that was his
         effort to make sure that none of the tenants were, although he did not get them out
         of harm[’s] way as it relates to the various personal items that were lost by those
         families. But certainly the steps that he took by indicating that the building was to
         be fumigated, indicated that there was a desire to ascertain and make certain that
         no one would be at risk, or harm.

                 And the fact that the defendant himself is now in a position to repay any
         and all restitution as counsel has indicated, if allowed to continue to work for the
         Ford Motor Company, gives some reason for this Court to take into consideration
         those individuals who have suffered financially and we know that once an
         individual suffers personally, that may remain with an individual for - - I mean,
         no money can set aside that experience. And maybe the emotional trauma, being
         overcome by fire, to the extent that he suffered heat exhaustion and smoke
         inhalation, the firefighter will probably never forget that.

                And this Court is convinced that the defendant, although he intentionally
         created these acts, had no desire to, or wanted to make certain that none of these
         individuals suffered any physical harm.



1
    The crime was committed in 2007.

                                                 -3-
              The defendant himself has suffered, I am sure that he has to atone for all
       that he may have received financially. He has to pay all of this back. The
       building that may have provided some sort of income is no longer available
       because it appears it is boarded up. . . .

                                              * * *

               All right. Well, this Court believes that, number one, because of the age;
       because of his ability to be rehabilitated; the fact that he had no priors and have
       had none in the past three and a half years. The fact that he is a family man. The
       fact that he continues to work for Ford Motor Company. The fact that he seems
       to be a valuable employee. And the fact that there was no intent to harm
       physically those that remain there.

                And the fact that he is willing to make retribution [sic] as it relates to the
       restitutional question, would indicate to this Court that it shoud depart from the
       guidelines. And sentence the defendant to a term of probation in the amount of
       three years. That he be placed under PA511 Probation for two years.

              That he seek and maintain legitimate, verifiable employment.

              That he make full restitution to all parties.

       The prosecution appealed Naccarato’s sentence, contending that most of the court’s
reasons for departing were not “substantial and compelling” or “objective and verifiable.” See
People v Babcock, 469 Mich 247; 666 NW2d 213 (2003). We remanded for the court to more
fully explain why its departure grounds were “substantial and compelling” and “more
proportionate” than a sentence within the guidelines would have been. People v Naccarato,
unpublished opinion per curiam of the Court of Appeals, issued October 4, 2012 (Docket No.
305222) (Naccarato I), unpub op at 3. We also held that the court had misscored one of the
offense variables and instructed that 20 points be added to Naccarato’s OV score. Id. at 3-4.

        Judge Braxton again sentenced defendant to three years’ probation. In support of this
sentence she cited the lengthy argument made by Naccarato’s counsel, who took great pains to
outline “substantial and compelling” reasons that probation was more proportionate than prison.
Contrary to this Court’s instruction, however, Judge Braxton refused to add 20 points to
Naccarato’s OV score. The prosecution appealed both the sentence and this error and added a
new argument: that OV 2 should have been scored with 15 points rather than zero. This Court
remanded for a resentencing, holding that both OV 1 and OV 2 should have been scored. Once
again, we directed Judge Braxton to explain why the particular departure she selected was more
proportionate than a within-guidelines sentence would have been. People v Naccarato,
unpublished opinion per curiam of the Court of Appeals, issued June 16, 2016 (Docket No.
320571) (Naccarato II), unpub op at 4.

       Shortly after Naccarato II was decided, the Supreme Court axed the requirement that
sentencing courts articulate “substantial and compelling” reasons for a departure. Lockridge, 498
Mich at 391-392 (“When a defendant’s sentence is calculated using a guidelines minimum
sentence range in which OVs have been scored on the basis of facts not admitted by the
                                                -4-
defendant or found beyond a reasonable doubt by the jury, the sentencing court may exercise its
discretion to depart from that guidelines range without articulating substantial and compelling
reasons for doing so.”). We now review a departure sentence for reasonableness, applying an
abuse of discretion standard. Walden, 319 Mich App at 355. “Indeed,” the majority emphasized
in Walden, “Lockridge expanded a trial court’s sentencing discretion, subject to reasonableness
review. Greater trial court discretion constricts an appellate court’s wherewithal to find an abuse
of discretion.” Id. (emphasis in original).

       Relying in part on Lockridge, Naccarato applied for leave to appeal in the Supreme
Court. The Supreme Court ordered the trial court to determine “whether it would have imposed
a materially different sentence under the sentencing procedure described in People v Lockridge,
498 Mich 358 (2015), upon correction of the error in scoring the offense variables.” The order
continued:

         If the trial court determines that it would have imposed the same sentence absent
         the scoring error, it may reaffirm the original sentence, stating its reason for
         departing from the guidelines on the record. If, however, the trial court
         determines that it would not have imposed the same sentence, it shall resentence
         the defendant. [People v Naccarato, 498 Mich 918; 871 NW2d 195 (2015).]

        Not surprisingly, remand round-two resulted in precisely the same departure sentence.
The court made its ruling after listening to long and detailed arguments by both counsel.
Defense counsel pointed out that the sentence was pursuant to a Cobb’s evaluation2 and was
reasonable in light of Lockridge. Counsel (again) highlighted that Naccarato had no criminal
history, successfully completed probation, continued to be a productive member of society, paid
all restitution, supported his family, was actively involved in his church, and volunteered in
community service activities. In further mitigation, counsel reminded the court that Naccarato
made sure the apartment building he burned was empty before he started the fire. Counsel
pointed out that PRV 7 was scored with 20 points only because Naccarato was charged with four
arson counts arising from exactly the same act. Had he been charged with one arson crime rather
than four overlapping offenses, his PRV score would have been lower, his grid would have
changed, and his guidelines substantially reduced.

       The court adopted counsel’s arguments, recounting the (now familiar) reasons for its
decision to downwardly depart:

                 This Court did give this defendant a probationary sentence. I believe this
         Court cited on the record substantial and compelling reasons. I am not quite
         certain as to whether or not Lockridge, the holding in Lockridge is in and of itself,
         lesser compelling reasons are acceptable but certainly it doesn’t impose any more
         substantial and compelling reasons other than the cases already cited.

                 This Court is of the opinion that even though the guidelines maybe
         different, is of the same opinion that it was before.


2
    People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993)

                                                 -5-
               This Court is of the same opinion that the reasons given for sentencing this
       defendant, which were compelling, reasonable and substantial. And the Court
       stated at prior hearings the reasons for sentencing this gentleman.

              I think defense counsel has again cited the reasons. And as she indicated,
       Ms. Powell [the prosecuting attorney], what could have happened; a lot of things
       could have happened. We could say that for every case that comes to this
       courtroom, what could have happened. It didn’t happen in this case.

              Has the defendant been punished? He’s been on probation in this case.
       The case is going on nine years now. . . .

                                             * * *

               This Court gave substantial and compelling reasons. And given the fact
       that, as madam Prosecutor indicated, someone could have died; someone could
       have been more seriously injured than they were. I think that the proportionality
       test has been met.

              I think that given the fact that this man made a poor, horrible decision.
       And in this Court’s opinion, he did everything to rectify, to make whole the
       victims who suffered financial setbacks. He made every effort to make sure they
       were made whole in terms of financial losses.

              I don’t know what else he could have done. I am sure something else
       could have happened; things could have been worse; the outcomes could have
       been worse but they were not. I think the proportionality aspect of the sentence
       given by this Court is well defined and well said in defense counsel’s argument.

              This man has done everything he could; he made a horrible decision and
       this Court is of the same opinion that he should receive a probationary sentence.

                I haven’t heard any different argument that would indicate to this Court
       what this Court should do other than what it has already done. And that is to find
       that in view of this man’s age, education, family support, and prior to this he was
       a stellar member of the community. He has been at one job for some thirty years.

              He has substantially suffered financial losses. He has made everyone
       whole. He even entered into an agreement, settlement agreement with the
       insurance company.

              I don’t know what else to say except that I am of the same opinion.

I share Judge Braxton’s bewilderment.




                                              -6-
                                                 II

        In light of Milbourn, Steanhouse, and Walden, Judge Braxton did not abuse her discretion
the first, second or third times she imposed a probationary sentence. Judge Braxton’s three
articulations of her reasons for departing detailed the nature of the offense and the background of
the offender. She acknowledged both aggravating and mitigating facts not subsumed within the
guidelines. She made it abundantly clear that Naccarato was a man with no prior record who
made a terrible mistake, but had done everything in his power to rectify it. Given his age,
Naccarato presented no danger of recidivism. And because he was gainfully employed and
supporting a family as well as recompensing his victims, the court judged that incarceration
would harm innocent third parties just as much (or more) than it penalized Naccarato. Judge
Braxton considered whether the public needed to be protected by incarcerating Naccarato, and
whether a danger existed that Naccarato would reoffend. Although she did not specifically
address the extent of the departure, she did not need to. Walden holds that we may determine
whether Judge Braxton’s decision conformed to Milbourn by examining the reasonableness of
the sentence in light of the circumstances presented.

        Walden involved an upward departure. The trial court’s justification for the departure did
not include any explanation of why the sentence it imposed was more proportionate than a
guidelines sentence would have been. This Court nevertheless upheld the sentence, rejecting that
any additional detail was required: “[A]lthough the trial court did not explicitly refer to the
principle of proportionality, we conclude under the circumstances presented that its decision
conformed to the law as articulated in Milbourn, that the sentence was proportional under
Milbourn, and accordingly that it was reasonable under Lockridge.” Walden, 319 Mich App at
355. The majority determined that the court had imposed a proportionate sentence based its own
review of the record, which included aggravating information contained in a prosecution filing
and defendant’s long and violent criminal history, facts not specifically cited by the trial court.

        Like the trial judge in Walden, Judge Braxton did not specifically justify the extent of the
departure, in this case why a probationary sentence was more proportionate than, for example, a
two-year prison sentence. Nevertheless, she reached a reasonable and thoughtful result that fully
incorporated and properly applied the principles of proportionality. Judge Braxton expressed
(thrice now) that Naccarato’s clean criminal record before and after the crime, his long period of
gainful employment, his strong family support, his involvement in his church and the
community, and the full restitution he made to those financially injured by his crime warranted
probation rather than incarceration. Probation was preferable to prison because it allowed
Naccarato to continue working and supporting his family while earning the money he needed to
repay the people his arson had harmed. The majority has not shed much light on why these
reasons for departure are inadequate, other than to mechanically recite that Judge Braxton failed
to specifically discuss “the extent” of the departure during any of the sentencings.

        The reason that Judge Braxton did not discuss “the extent” of the departure is obvious:
the court did not believe that any prison sentence would be proportionate to the offense or the
offender. Judge Braxton’s three explanations for selecting probation rather than incarceration
implicitly signal her finding that a prison sentence of any length would be disproportionate. I do
not know how reference to the guidelines could have made that point any clearer, particularly


                                               -7-
given Walden’s observation that Lockridge has “constrict[ed]” our ability to find an abuse of
discretion when the record reveals a reasonable and proportionate sentence.

         If Judge Braxton were still on the bench, I am certain that forcing her to offer more
detailed reasons that probation is more proportionate than prison would yield exactly the same
sentence. So what is the point? The point is that Judge Braxton has retired, permitting the
prosecution to try again in front of a new judge who does not share Judge Braxton’s level of
knowledge and understanding of the offense and the offender. So much for a deferential
standard of review or the fundamental precept expressed in Gall v United States, 552 US 38, 51-
52; 128 S Ct 586; 169 L Ed 2d 445 (2007), that a sentencing judge is in a unique position to craft
a fair sentence:

       “The sentencing judge is in a superior position to find facts and judge their import
       under [18 USC] 3553(a) in the individual case. The judge sees and hears the
       evidence, makes credibility determinations, has full knowledge of the facts and
       gains insights not conveyed by the record.” . . . “The sentencing judge has access
       to, and greater familiarity with, the individual case and the individual defendant
       before him than the Commission or the appeals court.” Rita [v United States, 551
       US at 357-358; 127 S Ct 2456; 168 L Ed 2d 203 (2007).] Moreover, “[d]istrict
       courts have an institutional advantage over appellate courts in making these sorts
       of determinations, especially as they see so many more Guidelines cases than
       appellate courts do.” Koon v United States, 518 US 81, 98; 116 S Ct 2035; 135 L
       Ed 2d 392 (1996).

              “It has been uniform and constant in the federal judicial tradition for the
       sentencing judge to consider every convicted person as an individual and every
       case as a unique study in the human failings that sometimes mitigate, sometimes
       magnify, the crime and the punishment to ensue.” [Id. at 113.]

        The rules have changed since the prosecution first challenged Naccarato’s sentence. Our
Supreme Court has strongly emphasized that the abuse of discretion standard controls: “[T]he
key test is whether the sentence is proportionate to the seriousness of the matter, not whether it
departs from or adheres to the guidelines’ recommended range.” Steanhouse II, 500 Mich at 472
(quotation marks and citation omitted). “Substantial,” “compelling,” “verifiable” reasons for
departure are no longer required. This Court underscored in Walden that our job is evaluate a
sentence for reasonableness based on the record, not magic words. I would hold that Judge
Braxton’s reasons for departing meet the Walden standard for articulation and describe a
reasonable outcome. I would therefore affirm.



                                                            /s/ Elizabeth L. Gleicher




                                              -8-
