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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOHN GOLDEN, Defendant-Appellant.

UNPUBLISHED November 16, 2006

No. 260020 Wayne Circuit Court LC No. 03-010863

Before: Whitbeck, C.J., and Sawyer and Jansen, JJ. PER CURIAM. Defendant appeals by delayed leave granted the trial court order revoking his probation and sentencing him to six to ten years' imprisonment on his plea-based conviction of breaking and entering with the intent to commit larceny, MCL 750.110. We affirm. Defendant pleaded guilty to breaking and entering a building under construction with the intent to commit larceny, and was sentenced to six months' probation with the first 100 days to be served in the county jail. On April 27, 2004, the trial court issued a bench warrant, asserting that defendant had violated his probation (1) by failing to maintain verifiable employment, and (2) because he had been videotaped by a television news crew illegally purchasing scrap metal. At defendant's probation violation hearing, evidence was presented that Detroit police officer Chris Gibson had contact with defendant and defendant's father on at least five occasions regarding their operation of a scrap yard on residential property without a license. Gibson's most recent contact with defendant occurred approximately one month before the hearing and two days before Gibson saw the television news report featuring defendant. Gibson had received complaints that defendant was still operating a scrap yard at his residence, which defendant denied. Gibson observed shopping carts full of metal being unloaded onto the sidewalk before being loaded onto defendant's white truck, which Gibson had previously impounded because of similar conduct. A local business owner, John Sarcone, testified that he followed a man with a shopping cart to defendant's residence on one occasion, and that he observed persons delivering scrap metal items to defendant's residence. Sarcone contacted the television news crew, and assisted in the production of the television news report detailing defendant's activity. A videotape of the report was played at the hearing.

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Defendant first argues that the trial court improperly exceeded the sentencing guidelines without articulating substantial and compelling reasons, and that his sentence is disproportionately severe, constituting cruel and unusual punishment. In reviewing a departure from the sentencing guidelines range, we review the existence of a particular factor supporting a departure for clear error, the determination whether the factor is objective and verifiable de novo, and whether a reason is substantial and compelling for an abuse of discretion. People v Babcock, 469 Mich 247, 264-265; 666 NW2d 231 (2003). Further, we review the extent of a departure for an abuse of discretion. People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003). Sentences imposed after probation revocation must comply with the legislative sentencing guidelines. People v Hendrick, 472 Mich 555, 560, 563; 697 NW2d 511 (2005). A trial court may only depart from the guidelines if it has substantial and compelling reasons to do so, and states those reasons on the record. Abramski, supra at 74. A substantial and compelling reason must be objective and verifiable, must "`keenly'" or "`irresistibly'" grab the court's attention, and must be recognized as being "`of considerable worth' in deciding the length of a sentence" Babcock, supra at 257, quoting People v Fields, 448 Mich 58, 67; 528 NW2d 176 (1995). The "objective and verifiable" requirement "mean[s] that the facts to be considered by the court must be actions or occurrences that are external to the minds of the judge, defendant, and others involved in making the decision, and must be capable of being confirmed." Abramski, supra at 74. A departure may not be based on characteristics already taken into account in determining the appropriate guidelines range, unless the court determines from facts in the record that the particular characteristic at issue has been given inadequate or disproportionate consideration. Id. Defendant's sentencing guidelines range was zero to 17 months, which placed defendant in an intermediate sanction cell. MCL 769.34(4)(a) provides in part: If the upper limit of the recommended minimum sentence range for a defendant determined under the sentencing guidelines set forth in [MCL 777.1 et seq.,] is 18 months or less, the court shall impose an intermediate sanction unless the court states on the record a substantial and compelling reason to sentence the individual to the jurisdiction of the department of corrections. The trial court sentenced defendant to six to ten years' imprisonment, stating that the sentencing guidelines did not adequately take into account defendant's "pattern of criminal activity which is very marked and very clear and very consistent[.]" The trial court remarked that at the time defendant committed the conduct charged in the amended probation violation petition, he was on probation for breaking and entering a structure that was under construction and stealing building materials. The trial court further noted that defendant was released from parole just months before he committed the breaking and entering in this case, and that defendant's previous prison sentence had stemmed from similar criminal conduct committed in Macomb County. The trial court determined that defendant's criminal history, along with the facts and circumstances supporting defendant's probation revocation, evidenced a clear pattern that was not adequately taken into consideration by the sentencing guidelines. The trial court further stated:

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What it amounts to in effect is that Mr. Golden has been for a number of years involved in a very direct and significant way in the plundering and desecration of this city. The problems that this city faces, the city of Detroit now have [sic] many causes, but certainly one of the causes is the plundering and pillaging of the real estate and the property in this city. So that when buildings become for short periods of time [sic], they are stripped of their plumbing and their electrical materials, and their bricks and their mortar and their windows. By vandals who sell their materials to the Sean Goldens1 of this world. Mr. Golden was a [facilitator] in that plundering and pillaging of the property in this city. And that's very clear from the evidence that I heard in the probation violation hearing and it's very clear from Mr. Golden's criminal history. That he is very instrumental in [facilitating] and aiding and abetting that kind of activity and in fact on some occasions has actually been directly involved in it himself. That has catastrophic consequences on the viability of this city and it has consequences for hundreds of thousands if not millions of people. It makes it very difficult for abandoned property to be rehabilitated, and put back into productive use in this city. Because by the time redevelopers get a hold of it the property has been completely plundered and pillaged and desecrated. It makes it very difficult for honest business men to do business in this city. Whether they own truck repair shops, or lawful scrap yards, or whatever their businesses are. Their ability to do business successfully and peacefully in this city [is] hampered or [a]ffected to [a] very large measure by people like Mr. Golden. And that all has some very, very dire consequences on this community as a whole. Those are factors that are not adequately taken into account by the sentencing guidelines. . . . And I think to describe Mr. Golden as simply a property crime violator, is to trivialize the consequences and the impact of his crimes. In Mr. Golden's case at least, his criminal history has as much dire consequences on this community as carjackers have, or armed robbers have. In his own way he has played a very serious and significant role in destroying the ambiance of this city. And what is even more disturbing to me is that whatever remedial intermediate sanctions are meted out to Mr. Golden over, and over, and over again. They have no impact on him; they have no deterrent effect on him. He has served jail time before, he's been on probation numerous times, and he's even been to prison on one occasion. And very shortly after he got [out]

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The television news report had referred to defendant by the alias "Sean Golden."

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of prison, he reoffended in exactly the same way that he's offended in the past. So all of those reasons, all of those factors are substantial and compelling reasons to depart from the sentencing guidelines in this case, which at least in this case are woefully inadequate to address the seriousness of crime or crimes for which Mr. Golden stands before us today. Defendant argues that the sentencing guidelines adequately addressed his prior convictions, and thus that the trial court erred by departing on this basis. Considering defendant's criminal history, the circumstances giving rise to the revocation of defendant's probation, and defendant's failure to rectify his behavior despite previous probation terms and imprisonment, we conclude that the trial court's determination that the sentencing guidelines did not adequately account for defendant's criminal history was not clearly erroneous. This factor is objective and verifiable, and the trial court did not abuse its discretion in determining that it constituted a substantial and compelling reason to depart from the sentencing guidelines range. Moreover, circumstances giving rise to a probation revocation properly may be considered in determining whether substantial and compelling reasons exist to support a sentencing departure. Hendrick, supra at 562-563. Defendant also argues that the trial court erred by attributing to him the destruction wrought on the city of Detroit. We agree that it would have been error for the trial court to depart from the guidelines based on the purported effect of defendant's conduct on the city. This factor was not objective and verifiable, and thus could not constitute a substantial and compelling reason for the departure. Babcock, supra at 257. However, the court stated that it did not depart from the sentencing guidelines based on the effect of defendant's actions on the city. The trial court explained: And, you know, my remarks about Mr. Golden and the consequences of Mr. Golden's actions on the city or people who commit crimes like that was not meant to blame Mr. Golden for all of the city's problems, but only meant to put the offenses that Mr. Golden apparently has an inability to stop committing into some context. They're not trivial offenses especially when they're committed repeatedly and regularly and on a fairly broad scale as they are by Mr. Golden . . . . *** And that leads to the next point, that being the sanction that I imposed, this was an extraordinary departure I'll admit, six to ten years on theft crime carrying guidelines arguably of zero to 17, but I indicated in my departure report and apparently on the record why I did that. And I think it's very important to note that Mr. Golden had just

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