Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  December 6, 2019                                                               Bridget M. McCormack,
                                                                                               Chief Justice

  158006                                                                              David F. Viviano,
                                                                                      Chief Justice Pro Tem

                                                                                    Stephen J. Markman
                                                                                         Brian K. Zahra
  PEOPLE OF THE STATE OF MICHIGAN,                                                 Richard H. Bernstein
            Plaintiff-Appellee,                                                    Elizabeth T. Clement
                                                                                   Megan K. Cavanagh,
                                                                                                    Justices
  v                                                      SC: 158006
                                                         COA: 334824
                                                         Wayne CC: 11-000851-FH
  GIOVANNI NACCARATO,
           Defendant-Appellant.

  _________________________________________/

         By order of April 2, 2019, the application for leave to appeal the May 1, 2018
  judgment of the Court of Appeals was held in abeyance pending the decision in People v
  Dixon-Bey (Docket No. 156746). On order of the Court, leave to appeal having been
  denied in Dixon-Bey on July 29, 2019, 504 Mich ___ (2019), the application is again
  considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we
  REVERSE the Court of Appeals judgment finding that the trial court failed to explain
  why the extent of the guidelines departure was warranted, and remanding this case to the
  trial court for resentencing. The trial court adequately explained why, in light of
  mitigating circumstances surrounding the offense and the offender, a sentence of
  probation would be more proportionate than a sentence of incarceration. The principle of
  proportionality was satisfied and the trial court did not abuse its discretion.

         MARKMAN, J. (dissenting).

         I respectfully dissent from this Court’s order reversing the Court of Appeals
  judgment and reinstating defendant’s sentence of three years of probation. Defendant
  here pleaded no contest to four counts of burning a dwelling house, burning insured
  property, and burning personal property valued at more than $1,000 but less than
  $20,000. The trial court departed downwardly from the applicable guidelines range (51
  to 85 months) and sentenced defendant to three years of probation. On two previous
  occasions, the Court of Appeals vacated defendant’s sentence and remanded to the trial
  court for resentencing, and each time the trial court reimposed the same sentence (three
  years of probation). The Court of Appeals has once again vacated defendant’s sentence
  and remanded for resentencing.

         The trial court’s reasons for the departure were: defendant’s age (41 at the time of
  the offense); his college education; his engineering career; his volunteer work in the
  community, his lack of prior criminal history, his good behavior subsequent to the fire;
                                                                                                               2

his compliance with conditions of probation; his satisfaction of his restitution obligation;
character letters submitted by family, friends, and former tenants; his efforts to evaluate
the building before setting it ablaze; and the fact that he himself suffered third-degree
burns that hospitalized him for six weeks.

        While the reasons cited by the trial court, in my judgment, justify some departure,
the question before this Court is whether they justify the specific departure imposed by
the trial court. The guidelines called for a prison sentence of 51 to 85 months, and the
trial court imposed three years of probation. Defendant started an apartment building that
he owned on fire so that he could collect the insurance money. This was a serious crime
and, although defendant attempted to ensure that the building was empty before he started
the fire, he nevertheless placed a number of people in danger of harm and a firefighter
was, in fact, injured. He also lied to the firefighters arriving on the scene and sought to
blame the fire on a “black man” he had supposedly seen fleeing from the building. The
trial court here did not adequately explain why these facts alone did not justify at least
some period of incarceration. Because I do not believe the Court of Appeals abused its
discretion in vacating defendant’s sentence and remanding for resentencing, I would deny
leave to appeal.

       CLEMENT, J., joins the statement of MARKMAN, J.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         December 6, 2019
       t1203
                                                                             Clerk
