Sentencing; “Law of the case”; Duncan v. Michigan; Kasben v. Hoffman; Scoring of OV 1; People v. Sargent; Distinguishing People v. Ball, People v. Lutz, & People v. Gary; Departure from the guidelines range; Scoring of OV 2; People v. Young; MCL 777.32(1)(b); “Incendiary device” defined (MCL 777.32(3)(d)); Applicability of OV 2 to crimes against property; MCL 777.22(2); Statutory interpretation; People v. Bemer; People v. McGraw; Principle that arson is “an inherently dangerous felony”; People v. Till

Holding that the trial court violated the law of the case as to the scoring of OV 1 and its departure from the guidelines, the court vacated the defendant’s sentence and again remanded for resentencing. In an issue not decided in the prior appeal, the court also agreed with the prosecution that the trial court erred in refusing to score OV 2 at 15 points. Defendant pleaded nolo contendere to arson of a dwelling house, arson of insured property, and arson of personal property valued between $1,000 and $20,000. In a prior opinion (Naccarato I), the court remanded for resentencing. On remand, the trial court sentenced him to the same sentences originally imposed – three years’ probation for all convictions, plus restitution. The court held in Naccarato I that “‘[b]ecause defendant used an incendiary device and there were victims as a result of the fire he started, 20 points should have been scored for OV 1’ instead of zero points.” Yet the trial court again assessed OV 1 at zero. No intervening change of law justified its decision to ignore the court’s “explicit instructions to assess OV 1 at 20 points.” Cases “involving the delivery of narcotics or ingredients for their manufacture, are plainly distinguishable from” this case. “The intentional use of gasoline to set fire to an apartment building in a populated area is quite different from the delivery of narcotics to a person who willingly ingests them; in this case, the tenants of defendant’s building, firefighters, and bystanders had no choice but to be exposed to the fire defendant set and the risk it posed.” Further, by resentencing him “outside of the guidelines range without explaining why the particular departure was more proportionate than a sentence” in the guidelines range of 30 to 50 months, “the trial court again disregarded the law of the case established in Naccarato I.” It also erred in its application of the law as to OV 2. “Defendant stipulated to the factual basis for his nolo contendere pleas,” including that he “possessed and used gasoline as an incendiary device” in his arson crimes.