PEOPLE OF MI V CAROL L AL-KASSAB
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 23, 2003
Plaintiff-Appellant/Cross-Appellee,
v
No. 239512
Wayne Circuit Court
LC No. 01-006044-01
CAROL AL-KASSAB,
Defendant-Appellee/CrossAppellant.
ON REMAND
Before: Meter, P.J., and Jansen and Talbot, JJ.
TALBOT, J., (concurring in part and dissenting in part).
I concur with the majority in adopting our previous opinion in this matter affirming
defendant’s convictions. However, I continue to respectfully dissent from my colleagues’
conclusion that the sentencing court’s departure from the sentencing guidelines was supported by
substantial and compelling reasons.
Some of the reasons the court articulated for the departure were not objective and
verifiable and none of the reasons articulated were substantial and compelling. People v
Babcock, 469 Mich 247, 272-273; 666 NW2d 231 (2003).
The sentencing court stated several reasons for the departure, as follows:
[1] The defendant was a 36 year old fully employed female with no criminal
record.
[2] The defendant has no history or evidence of a drug or alcohol problem or any
other social/physiological difficulties.
[3] The defendant is a lifelong resident [of] . . . Michigan.
[4] The defendant and the victim had a long-term romantic relationship leading up
to the incident . . . . The two lovers worked in the same location. The
relationship deteriorated and evidentially ended a few months prior to the incident
date.
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[5] The defendant has finally acknowledged her behavior toward the victim . . .
was inappropriate and for that brief period in her life she was letting her emotions
control her life, the lack of financial or material gain, and the motivation for the
criminal act being a temporary loss of emotional control (which was contrary to a
lifetime of controlled behavior).
In the first and third paragraphs, the court articulated defendant’s age, employment, and
duration of residency in a particular city as part of its reasons for the departure. These are
objective and verifiable but not substantial or compelling reasons for the departure in this case.
The court improperly considered defendant’s lack of a prior criminal record as a basis for
departure because this factor is already taken into consideration in scoring the prior record
variables of the sentencing guidelines. The court did not make a finding that this factor had
“been given inadequate or disproportionate weight,” pursuant to MCL 769.34(3)(b).
With respect to the fourth paragraph, the existence of a romantic relationship between
defendant and the victim, although objective and verifiable, was not an appropriate consideration
for departure in this case. The court erroneously believed that the relationship had ended only “a
few months prior to the incident date” when the record shows that the relationship had ended for
more than a year. This error is not insignificant particularly when, in the second and fifth
paragraphs, the trial court articulated as part of its reasons for the departure its ruling that the
offense was committed as a result of a temporary loss of emotional control that was contrary to a
lifetime of controlled behavior, and the absence of evidence of any drug, alcohol, social or
physiological problems.
The evidence established that defendant stalked her former boyfriend for more than a
year. Defendant harassed him at his workplace and repeatedly called his house in the early
morning hours between 5:00 a.m. and 6:00 a.m., every night for about a year. The victim stated
that this terrified his elderly grandmother with whom he lived and who passed away two months
after the offense was committed. Importantly, the victim stated that the offense was not the first
defendant committed against him. Defendant had damaged his vehicle in a separate incident
before the underlying crime was committed.
It is unclear how the court reached the conclusion that the romantic relationship had
ended only a few months before the instant offense, that the offense was committed under a
temporary loss of self-control, and that there was no evidence of any alcohol or psychological
problems in this case.1 On this record, the trial court did not articulate any substantial or
1
It would appear that the trial court had made its determination to depart from the sentencing
guidelines even before the trial commenced. In a hearing for defendant’s pretrial motion to
quash the Molotov cocktail charge, the court stated that it concluded from its review of the
transcripts before it that the offense was committed as an isolated offense that was “probational.”
The court indicated that it would consider favorably any type of probation, the question being
only “how much,” and that defendant would be required to complete some type of anger
management counseling. The court encouraged the parties to discuss the matter and to look into
any plea offers. The prosecutor does not point to this portion of the record on appeal.
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compelling reasons to justify the downward departure. I would remand for resentencing in light
of Babcock, supra.
/s/ Michael J. Talbot
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