                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 31, 2017
               Plaintiff-Appellee,

v                                                                   No. 331302
                                                                    Genesee Circuit Court
ANDREW FARLEY, JR.,                                                 LC No. 15-037130-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and METER and SHAPIRO, JJ.

SHAPIRO, J. (dissenting).

        I respectfully dissent and would remand for resentencing.

        Defendant was charged with open murder, MCL 750.316, and the jury was instructed on
first-degree premeditated murder,1 second-degree murder,2 and voluntary manslaughter.3 The
jury acquitted him of first-degree murder and convicted him of second-degree murder.
Defendant does not challenge his conviction but does appeal from the sentence imposed. The
sentencing guidelines, as scored by the court, recommended a minimum sentence within the
range of 162 to 270 months. The trial court imposed a minimum term of 600 months, a more
than 100% increase from the top of the guideline range and a minimum sentence 27 ½ years
longer than the longest term recommended within the relevant guideline grid. The trial court
explained its departure as resting on its conclusion, contrary to that of the jury, that defendant
was guilty of first-degree premeditated murder. Because MCL 777.36(2)(a) specifically bars the
court from making a finding at sentencing that defendant’s homicidal intent was of a level other
than that found by the jury, I would reverse and remand for resentencing.




1
    MCL 750.316.
2
    MCL 750.317.
3
    MCL 750.321.


                                               -1-
                                              I. FACTS

         On October 26, 2014, defendant killed his wife by striking her in the head with a
household flashlight and then stabbing her. He admitted doing so in statements to the police and
in testimony. His defense at trial, based primarily on his own testimony, was that his actions
occurred during a highly emotional state caused by adequate provocation, and so constituted
voluntary manslaughter rather than murder. It is uncontested that the couple had marital
difficulties, and that the victim had had a sexual relationship with a co-worker. The co-worker
testified that the affair was brief. Defendant however testified that his wife had agreed to end the
affair, but then resumed it on at least two occasions. He testified that immediately before he
struck her, the victim made several statements that sent him into a rage, namely that he
“disgusted her,” that he was “not a man,” that he could not have a baby with her,4 and that she no
longer wanted to be with him. According to defendant, his wife also said that she was going to
get the co-worker with whom she had an affair, bring him back to the house, have sex with him
in front of defendant, and have his baby.

         The crime was discovered by the victim’s friend, who became concerned when the victim
stopped returning text messages. After several hours, the friend went to the couple’s home to see
if everything was alright. When she opened the door, she smelled gas. She called out but
received no response. She went home and told her husband what had happened, and the two of
them returned to the house. Despite the strong smell of gas, they entered the home and
discovered the victim’s body in the bedroom. They called 911 at 8:22 p.m. The police arrived
within a few minutes and found defendant in the house in a non-responsive state due to the gas
exposure. Defendant waived his Miranda rights and was questioned by the police. He
immediately confessed to killing his wife and stated that having done so, he decided to kill
himself. As a means to do so, he disconnected the gas hose from the hot water heater and started
a fire in the fireplace, believing that it would cause the house to explode. He also took a number
of prescription opiate pills.

        The prosecution argued that defendant was guilty of first-degree murder on either of two
theories. First, that he had in fact plotted the killing over some time, and that his testimony about
losing control because of what his wife had said was simply invented. Second, that even if
striking his wife with the flashlight occurred in a provoked moment of rage, defendant still
premeditated the killing in the time it took to walk to the kitchen, get a knife, and return. The
defense argued that defendant was guilty only of voluntary manslaughter because he was
adequately provoked and acted in the heat of the moment. The jury, by convicting defendant of
second-degree murder, concluded that defendant was able to form a malicious intent, but that he
had not premeditated the killing.

        Defendant’s sentencing guidelines prior record variable score was zero since his only
prior record was for misdemeanor convictions for driving on a suspended license. The probation
officer, who prepared defendant’s presentence investigation report (PSIR), recommended OV
scores that totaled 95 points, placing defendant in guideline grid A-II, which carried a


4
    Defendant had had a vasectomy after fathering three children in his first marriage.


                                                  -2-
recommended minimum term of 140 months to 240 months. The trial court concluded that OV
10 should also be scored, raising the OV total to 105 points. Defendant was therefore sentenced
based on guideline grid A-III,5 which defines a minimum sentence range of between 162 months
and 270 months.6

                                  II. LAW AND ANALYSIS

       In sentencing defendant to a term of 50 years to 70 years and 10 months, the trial court
imposed a minimum sentence 27½ years longer than the upper limit of the guidelines, an upward
departure of more than 100%.7 During the sentencing hearing, the trial judge repeatedly
emphasized that he disagreed with the jury’s verdict and that he believed the evidence
demonstrated that defendant was guilty of premeditated first-degree murder.

               When I listen to the testimony at the trial it was clear to me from the, ah,
       journal that was introduced as well as other testimony that you had been plotting
       her death for some time. . . . What the evidence showed to the Court was that you
       had cat -- had categorized through a diary that you were gonna do to you [sic].
       You made up your mind long before you killed her that you were gonna kill her;
       and probably take your own life in the process. Um, you stated in your diary the
       method in which you were gonna go about killing her; ah, you stated the reasons
       why you were gonna kill her. And most of these reasons had to do it appeared to
       this Court with your pride; your pride was hurt because, ah, possibly she may
       have found involvement with another man. . . . And so you continued with your
       plan to, ah, to cause her death.

                                             * * *

               So the evidence showed to me a very cold, self centered, um, prideful
       individual who had made up his mind he was gonna kill his wife and use his
       writings to cover it up, and hopefully come out with a result that would be
       substantially less than what he deserved. Ah, you were seeking Manslaughter in
       this case; the Jury compromised, its Second Degree Murder. I agree with [the
       prosecutor]; I think [the prosecutor] clearly, ah, presented a case of First Degree
       Murder in this case. There is no question in this Court’s mind from the evidence
       that this was a premeditated and deliberate act on your part. You had


5
  Unlike most guideline sentencing grids, the grid for second-degree murder contains only three
OV levels. A defendant is in OV level III if the OV score is 100 points or above. Therefore, the
scoring of OV 10 raised defendant’s sentencing grid from A-II to A-III. Defendant does not
challenge that scoring on appeal.
6
  The probation agent did not make a recommendation as to length of sentence. The victim’s
father requested a minimum term of 35 years.
7
 It appears that the trial court deviated from the 2/3’s rule defined in People v Tanner 387 Mich
683; 199 NW2d 202 (1972), though only very slightly and the issue has not been raised.


                                               -3-
       premeditated and deliberated, you had planned and schemed, and you had put
       your plan into action. And that plan not only involved you killing your wife, but
       also killing yourself; you were going to kill yourself, but it didn’t work out that
       way and so here you stand today before the Court.[8]

              When I look at the guidelines, and they don’t apply they’re advisory, ah
       because of People versus Lockridge. . . . But the Court thinks not only does it
       have the right to exceed the guidelines in this case because of your offense score,
       but the Court has the right to exceed the guidelines because it is clear to this
       Court that you had plotted and planned the murder of, ah, [the victim].
       [Emphasis added.]

        This murder was a heinous crime, but the trial court did not conform to the law in
imposing this sentence. The judge based his more than quarter-century departure from the
guidelines on his conclusion that defendant had premeditated the murder, a factor which he
erroneously concluded was not taken into account in the guidelines, and which essentially
nullified the jury’s verdict which the judge dismissed as the result of “jury compromise[].”9

                          A. Premeditation as Grounds for Departure
        As a general rule, a trial court may make factual findings for purposes of sentencing that
are inconsistent with the verdict. For example, a trial judge may score OV 1 and OV 2 for use of
a weapon despite the fact that the jury convicted of unarmed robbery rather than armed. See
People v Harverson, 291 Mich App 171; 804 NW2d 757 (2010). However, the legislature
adopted a specific statute regarding the issue of homicidal intent barring the trial court from
sentencing on its findings of intent rather that the jury’s.
       Offense Variable 6 is scored based upon the “offender’s intent to kill or injure another
individual” and can be scored at descending severity for premeditation, unpremeditated intent, or
the mental state underlying an act of manslaughter. MCL 777.36. This OV is scored only in
cases of homicide or related offenses.10 The statute defining this OV is unique in that it bars


8
 The trial court did not explain how its conclusion that defendant was planning to get away with
murder and was pre-planning a manslaughter defense could be reconciled with its conclusion—
well founded in the evidence—that defendant attempted to kill himself immediately after the
murder of his wife and that he likely would have succeeded but for the intervention of the police.
9
  The trial court cited no basis for this conclusion and it appears to be wholly speculative. The
fact that the parties argued for convictions above and below second-degree murder does not lead
to the conclusion that the verdict was a compromise. There was substantial basis in the record
for a finding that defendant formed an intent to kill but did not premeditate the murder. The jury
was free to conclude that both sides were overreaching in their claims as to what the proper
conviction was.
10
  The related offenses are attempted homicide, conspiracy, solicitation to commit a homicide,
and assault with intent to commit murder.


                                               -4-
judicial factfinding. MCL 777.36(2)(a) states in mandatory terms, “The sentencing judge shall
score this variable consistent with a jury verdict unless the judge has information that was not
presented to the jury.” In this case, the sentencing court did not have such information and the
OV was scored consistent with the jury’s verdict, i.e. defendant received 25 points for
“unpremeditated intent.”
        No other guideline factor mandates that it be scored consistent with the jury’s verdict.
The statute is unambiguous; the trial court may not make a judicial finding as to premeditation
when scoring the guidelines. The question then is whether in light of this statutory restriction on
judicial fact-finding as to intent when scoring the guidelines, the trial court may nevertheless rely
on its own finding of premeditation as grounds to depart from the guidelines. I conclude that a
trial court may not do so because it would plainly nullify the Legislature’s clear directive that
intent in homicide cases is determined conclusively by the jury. 11 To allow the trial court to
make findings as to intent inconsistent with the verdict and to use those findings as grounds to
impose a longer sentence, would merely engage the court in a charade in which the legislature’s
command becomes nothing more than a detour on the road to judicial fact-finding concerning
homicidal intent.12 I see no basis to conclude that the legislature intended to define such an
illusory process when it adopted MCL 777.36(2)(a).13

        The majority relies on the general principle that sentences that are outside the guidelines
range are proper where there are relevant factors not contained in, or given adequate weight by
them. Here the trial court suggests that defendant’s intent was not given sufficient weight
because of the jury’s verdict. However, the requirement that the scoring of OV 6 be controlled
by the jury verdict is set forth in a specific statute. MCL 777.36(2)(a). It is axiomatic that when
statutes contain a general provision and a specific provision, the specific provision controls.
People v Calloway, 500 Mich 180; 895 NW2d 165, 168; 897 NW2d 167, reh den 500 Mich 1025
(2017).




11
   It would also create a discontinuity in the role of the trial court. Should a jury convict a
defendant of first degree murder, the trial court may not conclude that there was no
premeditation and thereby sentence defendant to a term of less than life without parole.
12
  The principle contained within MCL 777.36(2)(a) has a long pedigree in common law as well.
See, e.g. People v Grimmett, 388 Mich 590, 608; 202 NW2d 278 (1972), overruled on other
grounds in People v White, 390 Mich 245; 212 NW2d 222 (1973), overruled on other ground in
People v Nutt, 469 Mich 565; 677 NW2d 1 (2004) (remand for resentencing because “the trial
judge acted improperly in assuming defendant was guilty of the murder charge when he
sentenced defendant on the assault charge.”)
13
   The majority takes the view that the legislature intended to allow exactly that. Such a view
begs the question why the legislature would have provided for this unique limit on OV 6 scoring
if it could be vitiated by a trial court’s contrary finding as a basis for departure. If the ultimate
determination of homicidal intent or premeditation is one for the judge, why bother to have the
limit on OV 6 scoring at all?


                                                -5-
        The language of MCL 777.36(2)(a) demonstrates that the legislature intended that where
the jury is specifically asked to determine intent and premeditation, the court must respect that
finding. It would turn this principle on its head to then conclude that because the judge is
supposed to respect the jury’s verdict in scoring this guideline, that the court may then abandon
that respect in imposing a departure sentence. This is not a case of departing due to an
aggravating factor not referenced in the guidelines; rather, it is a case of departing based upon a
judicial finding, the nature of which the legislature specifically directed to be excluded from
consideration. Moreover, the extent of the departure, under which defendant is ineligible for
parole consideration until he is 94 years old clearly indicates the court’s intent that defendant
serve a sentence consistent with a first-degree murder conviction.

                                    B. Other grounds for departure

        Having determined that the trial court could not rely on a finding of premeditation to
support its extraordinary departure of over 27 years, it is necessary to consider whether any of
the other grounds for departure noted by the court were sufficient grounds upon which to uphold
the sentence. A review of the sentencing transcript and the briefs, demonstrates that these
alternative grounds are not adequate to justify a sentence that is more than double the top of the
guideline range, a 27½ year departure, and a sentence that precludes parole consideration until he
is 94 years old. 14

        In reviewing a sentence that departs from the guidelines, we are to rely on the principle of
proportionality articulated in Milbourn.15 People v Steanhouse, ___ Mich ___; ___ NW2d ___
(2017) (Docket Nos. 152671, 152849, 152871 to 152873, and 152946 to 152948); slip op at 3,
14-16. Milbourn dictates that our review of a departure sentence begins with an analysis of
whether the trial court’s rationale for the departure involved circumstances “not adequately
embodied within the variables used to score the guidelines.” Milbourn, 435 Mich at 659-660.
The trial court did not offer grounds for departure that were not or could not have been scored in
the guidelines. Under Lockridge the guidelines are “advisory,” and “remain a highly relevant
consideration in a trial court’s exercise of sentencing discretion.” People v Lockridge, 498 Mich
358, 391; 870 NW2d 502 (2015).16 Courts must both “ ‘consult those Guidelines and take them
into account when sentencing.’ ” Id. at 391, quoting United States v Booker, 543 US, 220, 264;
125 S Ct 738; 160 L Ed 2d 621 (2005). In other words, they remain the starting point for any
sentencing determination.

      The trial court referenced four reasons for a 27½ year departure other than its finding of
premeditation.


14
   A term of years sentence may not be found unreasonable merely because the defendant would
live long enough to ever be considered for parole. However, no case has ever held that we may
not even consider it among the totality of the circumstance.
15
  People v Milbourn, 435 Mich 630; 461 NW2d 1(1990), overruled by statute as recognized in
People v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011).
16
     The trial court while noting the guidelines are advisory also stated that they “don’t apply.”


                                                   -6-
        First, that the murder was brutal, which, like nearly all murders, it surely was. However,
excessive brutality is a factor that the guidelines take into account in OV 7. The trial court did
not score OV 7 which should be scored where “a victim was treated with sadism, torture,
excessive brutality, or similarly egregious conduct designed to substantially increase the fear and
anxiety a victim suffered during the offense.” MCL 777.37. Whether the facts of this case rise
to that level is not clear.17 But it is clear that the issue of brutality was one that the trial court
should have first addressed in the context of OV 7, rather than in the context of a departure
sentence.
        Second, the trial court stated that a departure was justified because the victim’s foster
child has been left without a mother. Despite the outrage that this fact may generate, it is not an
unusual circumstance in murder as it occurs in every murder in which the victim has a child.
Moreover, OV 5, which was scored, increases the sentencing range based upon “serious
psychological injury requiring professional treatment occurred to a victim’s family.” MCL
777.35.

       Third, the trial court stated that “there’s a high probability . . . that you will repeat this
behavior again.” While the likelihood of recidivism is a proper sentencing factor, it is largely
taken into account in the prior record variable scoring as well as OV’s 12 and 13 which score
contemporaneous criminal acts and a continuing pattern of criminal behavior respectively all of
which were properly scored at very low levels.18 A trial court may conclude that these factors do
not adequately account for a defendant’s likelihood of recidivism, but if so, the court must
explain the objective basis for its conclusion, Without such an explanation, the statement that
defendant will reoffend is speculative.




17
   As held in People v Hardy, 494 Mich 430, 443-444; 835 NW2d 340 (2013), “The relevant
inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to
commit the offense; and if so, (2) whether the conduct was intended to make a victim’s fear or
anxiety greater by a considerable amount.” While the crime was heinous it is far from clear that
either of these inquiries would be answered affirmatively.
18
  People v Peltola, 489 Mich 174, 189 n 30; 803 NW2d 140, 148 (2011) discussed the role of
PRV scoring to effectuate the purpose of punishing a recidivist. The Court stated:
      [O]ur reading of the statute is consistent with and effectuates the Legislature’s
      intent to promote uniformity and consistency in sentencing through the use of the
      sentencing guidelines and the general legislative purpose to punish recidivist
      offenders more severely. See MCL 769.10; MCL 769.11; MCL 769.12; MCL
      333.7413; see also People v Babcock, 469 Mich 247, 263, 666 NW2d 231 (2003)
      (“The premise of our system of criminal justice is that, everything else being
      equal, the more egregious the offense, and the more recidivist the criminal, the
      greater the punishment.”). By requiring the scoring of the PRVs, our analysis
      effectuates this purpose by avoiding the untoward consequence of punishing a
      recidivist drug offender less severely than a first-time drug offender.



                                                 -7-
        Lastly, the trial court noted that defendant’s actions directed at blowing up the house,
with himself inside it, endangered the neighbors. This is a proper sentencing consideration.
However, the trial court, again, used this as grounds to depart from the guidelines rather than to
score them. OV 9 allows for points to be scored if additional persons are determined to be
“placed in danger of injury or loss of life.” MCL 777.39(2)(a). Addressing this as grounds to
depart rather than as grounds to score OV 9 is inconsistent with Milbourn’s prescription that the
guidelines remain the starting point in the sentencing process.

                                      III. CONCLUSION

        The trial judge erred in departing from the guidelines based on a finding of premeditation
inconsistent with the jury verdict. Accordingly, we should remand for resentencing at which the
trial court may rescore the guidelines to account for all relevant factors and if it imposes a
departure sentence, it should clearly state its reasons why the guidelines do not adequately
address the factor at issue.



                                                            /s/ Douglas B. Shapiro




                                               -8-
