PEOPLE OF MI V LEONARD R LINZELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 13, 2004
Plaintiff-Appellee,
v
No. 237942
Wayne Circuit Court
LC No. 00-004252
LEONARD R. LINZELL,
Defendant-Appellant.
ON REMAND
Before: Gage, P.J., and Cavanagh and Wilder, JJ.
PER CURIAM.
This case is before us on remand from the Michigan Supreme Court.1 In our previous
opinion, we affirmed defendant’s sentence of 6 to 15 years’ imprisonment for his conviction of
second-degree home invasion, MCL 750.110a(3).2 The Supreme Court, in lieu of granting leave
to appeal, remanded this matter to us for reconsideration in light of People v Babcock, 469 Mich
247; 666 NW2d 231 (2003). Upon reconsideration, we affirm.
Because defendant’s offense occurred after January 1, 1999, the statutory sentencing
guidelines apply. MCL 769.34(2). In Babcock, supra, our Supreme Court reiterated that the trial
court must choose a sentence that is within the recommended range unless there is a substantial
and compelling reason to depart from that range. The majority of the Court agreed that the
phrase “substantial and compelling reason” means an objective and verifiable reason that
“keenly” or “irresistibly” grabs our attention, is “of considerable worth” in deciding the length of
the sentence, and exists only in exceptional circumstances. Id. at 256-257. Further with regard
to proportionality, the Court stated that in considering whether to depart from the guidelines, the
trial court must determine whether taking into account an allegedly substantial and compelling
reason would contribute to a more proportionate sentence than is available within the guidelines
range. Id. at 264. “In other words, if there are substantial and compelling reasons that lead the
trial court to believe that a sentence within the guidelines range is not proportionate to the
1
People v Linzell, order of the Supreme Court, entered September 30, 2003 (Docket No.
122394).
2
People v Linzell, unpublished opinion per curiam of the Court of Appeals, issued September 6,
2002 (Docket No. 237942).
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seriousness of the defendant’s conduct and to the seriousness of his criminal history, the trial
court should depart from the guidelines.” Id.
With respect to this Court’s standard of review, our Supreme Court agreed that the
existence or nonexistence of a particular factor is a factual determination that is reviewed for
clear error, the determination that a particular factor is objective and verifiable is reviewed as a
matter of law, and the trial court’s determination that the objective and verifiable factors present
in a particular case constitute substantial and compelling reasons to depart from the minimum
sentence is reviewed for abuse of discretion. Babcock, supra at 264-265 (citations omitted). The
Court found that the following “abuse of discretion” standard applies to sentencing decisions:
The Court of Appeals must determine, upon a review of the record,
whether the trial court had a substantial and compelling reason to depart from the
guidelines, recognizing that the trial court was in the better position to make such
a determination and giving this determination appropriate deference. The
deference that is due is an acknowledgement of the trial court’s extensive
knowledge of the facts and that court’s direct familiarity with the circumstances
of the offender. The Court of Appeals is to conduct the thorough review required
by ML 769.34(11), honoring the prohibition against departures not grounded in a
substantial and compelling reason. MCL 769.34(3). In doing so, however, the
Court must proceed with a caution grounded in the inherent limitations of the
appellate perspective. [Babcock, supra at 270.]
In other words, “an abuse of discretion occurs when the trial court chooses an outcome falling
outside the permissible principles range of outcomes.” Id. at 274. A majority of the Court
further determined that where the trial court articulates multiple reasons for its departure, some
of which are substantial and compelling and some not, and this Court is unable to determine
whether the trial court would have departed to the same degree on the basis of the substantial and
compelling reasons, this Court must remand to the trial court for resentencing or rearticulation.
Id. at 270-271.
On that basis, we turn to defendant’s sentence. As noted in our previous opinion, the
sentencing court considered several factors for imposing defendant’s sentence:3 (1) the victim
lost $6,300 that had not been recovered; (2) the recommended sentencing guidelines range did
not reflect the gravity of the crime – defendant violated the security of a citizen’s home; (3)
defendant’s extensive criminal record; (4) the recommended sentence did not protect the public
or deter crime; and (5) the victim’s home had been broken into twice before in the same manner,
which defendant did not dispute in the presentence investigation report. We previously
determined that the trial court properly found on the record that the guidelines gave inadequate
weight to the gravity of the crime committed against the victim – the victim found his home
3
We note that defendant was actually sentenced on two different occasions to the same sentence
in this matter. After the initial sentencing, defendant appealed his sentence to this Court and, in
lieu of granting appeal, this Court remanded for resentencing. See People v Linzell, order of the
Court of Appeals, entered January 25, 2001 (Docket No. 231359). On remand, the trial court
resentenced defendant to the same sentence and articulated its reasons for doing so.
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ransacked and defendant still in the home. We also determined that under the circumstances of
this case, the trial court properly found that the need to protect the public and other citizens like
the victim was a factor not adequately considered by the guidelines. Finally, we found that the
trial court properly considered the fact that the victim’s house was previously broken into in the
exact same manner as the instant break-in and the victim testified that it was defendant who had
previously broken into his home. Applying the framework in Babcock, supra, we again reach
the same conclusions.
The remaining factors relied on by the trial court include the amount the victim lost and
defendant’s extensive criminal record. The sentencing guidelines considered the victim’s
property loss. MCL 777.45. However, the guidelines do not account for the sentimental value of
the property; therefore, the court could properly take into account the fact that the victim lost
several thousand dollars that he was saving for his grandson’s college to justify a departure. The
sentencing guidelines also considered defendant’s prior felony and misdemeanor convictions.
MCL 777.52; MCL 777.55. With regard to this factor however, the trial court noted that with
defendant’s criminal history, the recommended guidelines would not deter him from committing
another crime. In fact, the record indicates that defendant was on probation numerous times for
other offenses and violated that probation several times. Thus, the trial court properly found that
the recommended guidelines gave inadequate weight to defendant’s criminal history. Under the
circumstances, recognizing that the trial court was in a better position to make these
determinations, Babcock, supra at 268, we will not substitute our judgment for that of the trial
court. Moreover, we are convinced that the sentence imposed by the trial court was
proportionate and did not fall outside the principled range of potential outcomes in this case. Id.
at 262-264, 269.
Affirmed.
/s/ Hilda R. Gage
/s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder
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