PEOPLE OF MI V RONALD PHILLIP BURBRIDGE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 4, 2008
Plaintiff-Appellant,
v
No. 273133
Wayne Circuit Court
LC No. 02-011791-01
RONALD PHILLIP BURBRIDGE,
Defendant-Appellee.
Before: Murray, P.J., and Hoekstra and Wilder, JJ.
Wilder, J., (dissenting).
Respectfully, I dissent. I would again vacate defendant’s sentence for second-degree
murder, and remand for resentencing.
First, the trial court relied on factors that were not objective and verifiable, People v
Babcock, 469 Mich 247, 257-258; 666 NW2d 231 (2003), in its consideration of circumstances
surrounding the crime. “Objective and verifiable factors are those that are external to the minds
of the judge, defendant, and others involved in making the decision, and are capable of being
confirmed.” People v Geno, 261 Mich App 624, 636; 683 NW2d 687 (2004). The trial court’s
comments reflect that it relied in part on a determination that the victim directed threatening and
harassing behavior toward defendant at an incident on New Years Eve. The only evidence on
which the trial court relied is testimony from a minister that defendant told him about the
incident. Thus, a conclusion that the incident occurred necessarily depends on accepting
defendant’s truthfulness in reporting that it occurred. Further, the trial court improperly relied on
defendant’s testimony indicating that he saw the victim go to the open trunk of the victim’s car
before the shooting occurred. While the trial court’s discussion of this point is quite vague, it is
most reasonably viewed as relying on defendant’s subjective and non-verifiable claim that he
was afraid the victim was walking to the open trunk to retrieve a gun. Thus, the trial court’s
consideration of circumstances surrounding the crime was flawed, because it involved reasons
that were not objective and verifiable, and thus, not properly considered as substantial and
compelling reasons for departure.
Second, the trial court’s reference to defendant’s “generosity, concern, and community
involvement” indicated in numerous letters does not constitute a substantial and compelling
reason for departure. To be a substantial and compelling reason for departure a reason must
keenly or irresistibly grab the attention of a reviewing court. Babcock, supra at 257-258. The
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trial court’s vague reference to unspecified instances indicating positive characteristics does not
keenly or irresistibly grab one’s attention.
As to the trial court’s consideration of defendant’s pre-arrest conduct, the fact that
defendant attempted to clear the street of others before he shot the victim is not an objective and
verifiable or a substantial and compelling reason for departure. This act could as easily be
construed as an attempt to ensure there were no witnesses, as it could be construed an effort to
avoid inflicting serious harm on others. Either conclusion requires an assessment of defendant’s
state of mind and truthfulness, which are neither objective nor verifiable.
The trial court referred to defendant’s post-arrest conduct, which included being
cooperative with the police, as “consistent with a person who has remained crime free for
seventeen years of his adult life responding to this tragic situation.” But defendant’s cooperation
with the police does not necessarily reflect an acceptance of responsibility, because this was also
consistent with maintaining a claim of self-defense.
Finally, as to defendant’s post-conviction conduct, the trial court relied on defendant not
having “received any misconduct [citations] while incarcerated for four years,” and on his “high
scores on work assignments,” having given him “the best possible score on 13 specific measures
of job performance, while in the Department of Corrections.” Defendant’s lack of prison
misconduct citations and scores on measures of job performance are objective and verifiable
considerations. However, while defendant’s apparently excellent behavior as a prisoner is
commendable, standing alone, it was not a substantial and compelling reason for a downward
departure, given the severity of defendant’s offense. Defendant was convicted of second-degree
murder, and the obvious severity of the crime was aggravated by the fact that defendant shot the
victim eight times with an assault rifle. Under the circumstances, and even recognizing that an
excellent prison record might conceivably support a downward departure with regard to a less
serious offense, defendant’s prison record simply was not a reasonable basis for a downward
departure in light of the severity of defendant’s offense. See Babcock, supra at 262 (“In
determining whether a sufficient basis exists to justify a departure, the principle of
proportionality—that is, whether the sentence is proportionate to the seriousness of the
defendant’s conduct and to the defendant in light of his criminal record—defines the standard
against which the allegedly substantial and compelling reasons in support of departure are to be
assessed”).
In light of the trial court’s failure to articulate a substantial and compelling reason for its
downward departure from the sentencing guidelines, I would remand this case to the trial court
for resentencing. Babcock, supra at 258-259.
/s/ Kurtis T. Wilder
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