Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack, Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

December 6, 2019

158006

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

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;
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

2

Clerk

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.