                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 21, 2015
               Plaintiff-Appellee,

v                                                                   No. 320768
                                                                    Grand Traverse Circuit Court
ROBERT JENSEN SCHWANDER,                                            LC No. 2011-011239-FC

               Defendant-Appellant.


Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

       Defendant Robert Jensen Schwander returns to this Court for the third time, following a
second remand for resentencing. Unfortunately, the third time is not the charm. Because the
resentencing court failed to articulate legally cognizable grounds justifying the extent of the
substantial departure sentence it imposed, we must once again remand for resentencing. To
preserve the appearance of fairness, defendant’s resentencing shall be conducted by a different
judge.

                       I. FACTUAL AND PROCEDURAL OVERVIEW

      Our previous opinion details the tragic and gruesome facts of this case. People v
Schwander, unpublished opinion per curiam of the Court of Appeals, issued January 31, 2013
(Docket No. 307921) (Schwander I). We recapitulate only those facts pertinent to this appeal.

         The prosecution charged defendant, age 17, with open murder for the death of Carly
Lewis. In her opening statement, the prosecutor urged the jury to convict defendant of murder in
the first degree. He “never really liked Carly,” the prosecutor asserted, “blamed her for being
kicked out of their house” and “convinced her to go with him to a secluded area” where he
stabbed her 10 times. The prosecutor’s closing argument reprised that theme: defendant “wanted
to kill” Carly, hatched an elaborate plot to lure her to a place where he could murder her without
detection, and mercilessly stabbed her to death, fueled by hatred.

         Defendant testified in his own behalf and insisted that he had not stabbed Carly. He
claimed that Carly had initiated a physical altercation and that he became “so out of control” that
he beat and then strangled her. The pathologist who conducted the autopsy, Dr. Stephen Cohle,
testified that Lewis had, in fact, been stabbed multiple times, and that a stab wound to the chest
caused her death. A pathologist who testified on behalf of the defense, Dr. Bader Cassin, opined

                                                -1-
that it was “possible” that Carly had died due to a stabbing chest wound, but he found no strong
evidence of it when reviewing the autopsy report and photographs. Alternatively, Dr. Cassin
advanced the possibility that the wounds detected by Dr. Cohle were caused by the sharp end of
a probe used by the police while searching the ground for her body. Dr. Cassin told the jury that
the autopsy results were also consistent with death by strangulation.

       The jury convicted defendant of second-degree murder, MCL 750.317, thereby rejecting
that defendant had premeditated or deliberated Carly’s killing. This verdict removed a
mandatory life without parole sentence from the range of sentencing options, triggering the
application of Michigan’s legislative sentencing guidelines.

        Pursuant to the guidelines, Grand Traverse Circuit Judge Thomas Power calculated
defendant’s second-degree murder sentence by assigning points for the applicable prior record
(PRVs) and offense variables (OVs). Defendant received a zero PRV score because he had no
prior convictions or juvenile adjudications. Judge Power assessed a large number of OV points.

        Judge Power then plugged defendant’s PRV and OV scores, respectively zero and 110,
into the applicable sentencing grid. As so scored, the guidelines called for a minimum sentence
range between 162 and 270 months’ imprisonment (13.5 to 22.5 years), or life. Judge Power
opted to impose a term-of-years sentence rather than life imprisonment. He departed from the
top of the minimum-sentence range called for by the guidelines, levying a minimum sentence of
40 years’ imprisonment with a maximum term of 70 years. Judge Power identified his “principal
reason for departing” as his factual finding that Lewis’s death was “by stabbing,” and that she
remained in the process of dying for half an hour. During that interval, Judge Powers found,
“she could have been saved, which [defendant] wouldn’t necessarily know.” Defendant’s failure
to summon aid, Judge Powers opined, “is particularly cruel and soulless. And that is not
considered in the guidelines.”

        Defendant appealed only his sentence, challenging the scoring of several offense
variables and the extent of the sentence departure. A different panel of this Court rebuffed
defendant’s guideline challenge, finding the scoring within Judge Powers’ discretion. This Court
further held that although Judge Power elucidated two appropriate reasons for departing from the
guidelines’ sentence, he neglected to justify the extent of the departure sentence imposed. The
Court remanded for resentencing, instructing Judge Power to articulate his justification for the
“extraordinary departure” sentence it selected. Schwander I, unpub op at 5.

       On first remand, Judge Power announced that he was “unable to improve upon the
reasons for the departure.” He sentenced defendant to 38 to 70 years’ imprisonment, concluding:
“The undersigned is hopeful that this substantial reduction in the Defendant’s sentence will
prove satisfactory to the Court of Appeals.” It did not. We again vacated the sentence and
remanded for resentencing before a different judge. People v Schwander, unpublished order of
the Court of Appeals, entered April 9, 2013 (Docket No. 307921). On second remand, Judge
Philip E. Rodgers, Jr., reinstated Judge Power’s original departure sentence of 40 to 70 years’
imprisonment.

      Judge Rodgers commenced defendant’s resentencing by outlining the “substantial,
compelling and objective reasons” for a departure sentence. Echoing Judge Power, Judge

                                               -2-
Rodgers found “the depravity and the stabbing death of this young woman, which took her 30 to
60 minutes to die,” a reason for departure. “First aid was not provided,” Judge Rodgers
continued, which “probably would have saved her life.” Additionally, defendant “gross[ly]”
abused the trust of the victim’s family, and showed no remorse. “Fourth,” Judge Rodgers
continued, “there was a 12 day search for the victim. And, the publicity generated reasonable
community fear for the safety of other children not knowing how or why Ms. Lewis had
disappeared.” Next, “after death the body was treated with what can only be described as
complete and utter disrespect.” Lastly, Judge Rodgers observed, the Department of Corrections
recommended an upward departure.

        Judge Rodgers then turned to the “principles of proportionality” which supported the
extent of the departure sentence he intended to impose. Addressing defendant, he began “by . . .
determining who you are:”

         And, I look at your prior record variable score and I see that that’s zero, that can
         mean a variety of things. That could mean you were one free of prior criminal
         behavior, an innocent man caught in circumstances that were overwhelming, who
         out of anger and spite murdered another human being, that however is not you.

                 I looked carefully at this record. What this record reflects, among other
         things, is prior multiple acts of criminal sexual conduct in the third degree, which
         were scored in the offense variables as a continuing pattern of criminal behavior.
         They weren’t scored in the prior record variables because there were no
         convictions, but they are recorded in the diary and in the testimony of your
         girlfriend, Ms. Tezak. Page 1 of your original pre-sentence report reflects that
         you made a threat to a corrections officer and his family while confined in the
         county jail awaiting trial. And, your pre-sentence report also indicates due to
         escalating negative behavior in the school your own high school principal was
         afraid of you. So you were, then, at the time this occurred a person who
         committed a series of high severity felonies and whom others legitimately feared.
         I emphasize this only because the principles of proportionality that derive from
         Milbourn[1] recognize that more serious sentences should be for people who not
         only commit the most serious crimes, but for whom the community should have a
         reasonable fear.

                 Not as important were the concurrent offenses of larceny in a building
         from the Lewis home, trespass, vandalism and the theft of electricity from a
         structure you did not own. And, the prior provision on at least one occasion of
         providing marijuana to a minor.[2]



1
    People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
2
  Defendant was never charged with larceny, trespass, vandalism, the theft of electricity, or
providing marijuana to a minor.


                                                 -3-
       Judge Rodgers moved on to the manner of Lewis’s death. Again speaking to defendant,
Judge Rodgers queried:

       So which is more depraved, stabbing a victim multiple times and watching her
       slowly bleed to death or choking her to the point where she became unconscious
       and could no longer fight or resist, continuing to do so for two additional minutes
       then dropping the body, going for a walk and returning finally to allegedly doing
       some chest compressions. That’s the trial record. In either case the level of
       depravity is stunning.

       Next, Judge Rodgers determined that because defendant had actually committed first-
degree murder, a sentence substantially above the guidelines was proportionate to the crime:

              You were initially charged with murder in the first degree, the
       premeditated and deliberate killing of another. What does that actually mean?
       People like me, juries, have been directed to the Michigan Supreme Court opinion
       in People versus Vail, it’s an old opinion, a 1975 opinion of the Michigan
       Supreme Court, 393 Michigan 460. And, I would direct you to pages 468 and
       469. Premediated is to think about beforehand. To deliberate is simply to
       measure and evaluate facts. But, the important part of the Vail decision reads as
       follows, while the minimum time necessary to exercise this thought process is
       incapable of exact determination the interval between thought and ultimate action
       should be long enough to afford a reasonable man time to subject the nature of his
       response to a second look.[3]

               Let me read that last part to you again, the interval between thought and
       ultimate action should be long enough to afford a reasonable man time to subject
       the nature of his response to a second look.

       Judge Rodgers then described the process of strangulation that defendant claimed had
occurred. That process, Judge Rodgers indicated, would have taken more than two minutes—“a
long enough interval to give a reasonable man time to subject the nature of his response to a
second look.” Judge Rodgers continued:




3
  The quotation is actually from People v Morrin, 31 Mich App 301, 330; 187 NW2d 434 (1971).
Judge Rodgers omitted the sentence immediately before the language he quoted: “As a number
of courts have pointed out, premeditation and deliberation characterize a thought process
undisturbed by hot blood.” Morrin was authored by then Judge, later Justice, Charles Levin. In
People v Vail, 393 Mich 460, 468-469; 227 NW2d 535 (1975), the Supreme Court cited the
entire quotation approvingly, holding in that case that the facts were “insufficient to establish
that the defendant had engaged in the required mental thought process necessary to classify the
homicide as a premeditated and deliberate murder.” The Supreme Court overruled a different
aspect of Vail in People v Graves, 458 Mich 476; 581 NW2d 229 (1998).


                                               -4-
               What you actually did was stab her to death and sit there a half an hour
       and watch her bleeding, the lung punctured, the blood and foam coming out of her
       mouth. Clearly, there was adequate time to give a reasonable man the interval to
       reflect upon his actions.

              So in my view by a preponderance of the evidence, which is the standard
       we use for purposes of sentencing, this was a first degree murder and a departure
       because of the far more serious crime of 600 to 900 months, or 50 to 75 years, is
       not only legally justifiable it’s consistent with who you are, what you did and
       your projected life expectancy. I will be candid with you, I hesitate to impose that
       sentence, or even 493 to 840 month sentence which the guideline analogy would
       mathematically support, because I believe it would be honestly found by the
       Court of Appeals to be retributive.

               So, I am simply going to reinstate your original sentence, 480 to 840
       months, or 40 to 70 years, and trust the magnitude of the departure has now been
       fully explained and that justice has been done, not simply to you but to Carly
       Lewis and her family as well.

       Defendant now challenges this sentence, raising four issues.           We find only one
meritorious.

                                   II. DISQUALIFICATION

       Defendant asserts that Judge Rodgers should have disqualified himself because he had
prior knowledge of the case and of Judge Power’s sentencing views. Even had Judge Rodgers
resentenced defendant impartially, defendant insists, disqualification was warranted due to the
appearance that Judge Power influenced the new sentence. This issue has been rendered moot by
our decision to order resentencing by a different judge. We address it briefly nonetheless.

       MCR 2.003(C)(1)(b) provides that disqualification of a judge is warranted where

               [t]he judge, based on objective and reasonable perceptions, has either (i) a
       serious risk of actual bias impacting the due process rights of a party as
       enunciated in Caperton v Massey, [556] US [868]; 129 S Ct 2252; 173 L Ed 2d
       1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard
       set forth in Canon 2 of the Michigan Code of Judicial Conduct.[4]

In Caperton, 556 US at 881, the United States Supreme Court explained that where a defendant
alleges judicial bias, “[t]he inquiry is an objective one. The Court asks not whether the judge is
actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be
neutral, or whether there is an unconstitutional ‘potential for bias.’ ” Id.


4
 Canon 2(A) of the Michigan Code of Judicial Conduct provides in pertinent part that “[a] judge
must avoid all impropriety and appearance of impropriety.”


                                               -5-
        At the hearing on defendant’s disqualification motion, Judge Rodgers stated that although
he and Judge Power “had some conversation regarding this case, as we often do,” their talks
were limited to mundane matters such as, “How’s it going? Are you on schedule? How is the
jury selection going?” Judge Rodgers denied any memory of “a particular conversation in this
case,” adding, “one thing I do remember is we never discussed how he should sentence in this
case or what the appropriate sentence would be or how the guidelines should be scored. That is
not a conversation that we had.” To familiarize himself with the case facts, Judge Rodgers
indicated that he planned to read the trial transcript before resentencing defendant.

       After Judge Rodgers denied defendant’s disqualification motion, defendant moved for
reconsideration. The State Court Administrative Office assigned Otsego Circuit Judge George J.
Mertz to review the motion pursuant to MCR 2.003(D)(3)(a)(ii). Judge Mertz also denied the
motion, reasoning in relevant part:

               This Court supposes that it is possible that Judge Rodgers’ participation in
       this case could create a perception in the minds of some that his decisions would
       be influenced by his working relationship with Judge Power, the publicity this
       case has garnered, or Judge Power’s previous rulings. However, whether any
       person could perceive an impropriety is not the standard this Court must apply.
       Looking at this matter from an objective viewpoint this Court is convinced that a
       reasonable observer, informed of all the facts and circumstances set forth above,
       would not “apprehend” any impropriety.

        We agree that Judge Rodgers’ disqualification was not warranted under MCR
2.003(C)(1)(b). No evidence supports that Judge Rodgers was actually biased or prejudiced
against defendant when he undertook the task of imposing a new sentence. Based on our review
of the record, we conclude that a reasonable person could neither infer a serious risk of actual
bias nor presume that Judge Rodgers’ professional relationship with Judge Powers necessarily
gave rise to an appearance of impropriety. Accordingly, Judge Mertz did not abuse his
discretion in denying reconsideration of defendant’s motion for disqualification.

                    III. SENTENCING AND THE SIXTH AMENDMENT

      Defendant next alleges that Michigan’s sentencing scheme, which permits judges to
enhance a sentence based on facts not proven beyond a reasonable doubt, violates the Sixth
Amendment. See Alleyne v United States, 570 US __; 133 S Ct 2151; 186 L Ed 2d 314 (2013).

       Our Supreme Court is currently considering this question. See People v Lockridge, 496
Mich 852; 846 NW2d 925 (2014). Until the Supreme Court issues its decision, we are bound by
this Court’s opinion in People v Herron, 303 Mich App 392; 845 NW2d 533 (2013), and must
deny relief on this ground.

                             IV. OFFENSE VARIABLE SCORES

       Defendant maintains that Judge Rodgers incorrectly scored offense variables 1, 2, 6, 10,
13, and 19. In his first appeal, defendant challenged the scoring of these same variables. Our
colleagues upheld Judge Power’s scores, specifically finding defendant’s challenges “without


                                               -6-
merit.” Schwander I, unpub op at 3. Judge Rodgers adopted Judges Powers’ scores for these
variables. The law of the case doctrine forecloses defendant’s renewed scoring criticisms.

        “The law of the case doctrine holds that a ruling by an appellate court on a particular
issue binds the appellate court and all lower tribunals with respect to that issue.” New Props, Inc
v George D. Newpower, Jr, Inc, 282 Mich App 120, 132; 762 NW2d 178 (2009) (quotation
marks and citation omitted). “[I]f an appellate court has passed on a legal question and
remanded the case for further proceedings, the legal questions thus determined by the appellate
court will not be differently determined on a subsequent appeal in the same case where the facts
remain materially the same.” Id. (quotation marks and citation omitted; alteration in original).
This Court’s previous analysis of Judge Power’s scoring decisions falls squarely within law-of-
the-case confines. To the extent defendant argues that by ordering resentencing this Court erased
the previous scores in contemplation that Judge Rodgers would score them anew, we are
unpersuaded. This Court is not in the habit of rendering advisory opinions. Accordingly, we
decline to revisit the variables’ scoring.

                              V. THE DEPARTURE SENTENCE

        We turn to the issue at the heart of this appeal: whether Judge Rodgers articulated
substantial and compelling reasons for a sentence departure, and adequately justified the extent
of the departure sentence imposed.

          A defendant convicted of second-degree murder faces a sentence of imprisonment for
life, or any term of years. MCL 750.37. When Judge Rodgers elected to impose a term-of-years
sentence he became bound to apply the statutory sentencing guidelines in fixing the maximum
and minimum terms of imprisonment. MCL 769.9(2). The Legislature has decreed that a court
may depart from the sentencing range established by the guidelines only after articulating
“substantial and compelling reasons” for so doing. MCL 769.34(3).

         The sentencing guidelines contemplate that a judge will exercise considerable discretion
in scoring the variables, deciding whether to depart from the calculated minimum sentence
range, and in settling on a proportionate departure. That discretion, however, is not limitless. It
does not encompass enhancing a defendant’s sentence based on nonobjective and unverifiable
criteria. Nor may a court deviate from the guideline’s sentence based on characteristics fully
accounted for in the offense and prior record variables.

        Here, the jury rejected a first-degree murder verdict, thereby establishing that the
existence of the requisite intent for first-degree murder—premeditation or deliberation—cannot
be “verified.” Further, because the sentencing guidelines took defendant’s intent into account,
defendant’s conjectural mental state established neither a ground for departure nor a justification
for the substantial departure sentence imposed.

       In People v Babcock, 469 Mich 247, 257; 666 NW2d 231 (2003), our Supreme Court
emphasized that “substantial and compelling reasons” for departure from the guidelines must be
“objective and verifiable,” and should “keenly” or “irresistibly” grab a court’s attention.
(Quotation marks and citation omitted.) A substantial and compelling reason “is external to the
minds of the trial court, the defendant, and others involved in making the decision, and is capable

                                                -7-
of being confirmed.” People v Kahley, 277 Mich App 182, 186; 744 NW2d 194 (2007). To
qualify as substantial and compelling, the reason also must be “of considerable worth” in
deciding the length of a sentence. Babcock, 469 Mich at 257 (quotation marks and citation
omitted). Substantial and compelling reasons for departing from the statutory guidelines exist
only in “exceptional cases.” Id. (quotation marks and citation omitted). “[W]hether the factor is
objective and verifiable is a question of law that this Court reviews de novo.” People v Young,
276 Mich App 446, 448; 740 NW2d 347 (2007).

       In addition to articulating appropriate substantial and compelling reasons supporting a
departure, a sentencing court must justify the extent of the departure; “the statutory guidelines
require more than an articulation of reasons for a departure; they require justification for the
particular departure made.” People v Smith, 482 Mich. 292, 303; 754 NW2d 284 (2008)
(emphasis in original). In Smith, the Supreme Court cautioned that

       if it is unclear why the trial court made a particular departure, an appellate court
       cannot substitute its own judgment about why the departure was justified. A
       sentence cannot be upheld when the connection between the reasons given for
       departure and the extent of the departure is unclear. When departing, the trial
       court must explain why the sentence imposed is more proportionate than a
       sentence within the guidelines recommendation would have been. [Id. at 304.]

                       A. GROUNDS FOR A DEPARTURE SENTENCE

        Judge Rodgers articulated a number of reasons supporting a departure. This Court
previously approved two of them—that Carly’s life could have been saved with prompt medical
attention and that defendant betrayed the trust of the Lewis family. Schwander I, unpub op at 4.
On resentencing, Judge Rodgers augmented the grounds for departure with: (1) defendant’s
“gross abuse” of the Lewis family’s trust; (2) his lack of remorse; (3) the 12-day search for Carly
that ensued when she was reported missing, which “generated reasonable community fear for the
safety of other children;” and (4) defendant’s “complete and utter disrespect” for Carly’s body.
We address two of these reasons.

        Our Supreme Court has repeatedly rejected reliance on a defendant’s expression of
remorse as a ground for departure. People v Daniel, 462 Mich 1, 6-7; 609 NW2d 557 (2000);
People v Fields, 448 Mich 58, 69; 528 NW2d 176 (1995). Expressions of remorse may be
objective, the Supreme Court has observed, but “a defendant’s intent when he expresses remorse
is within his own mind and is, therefore, subjective.” Daniel, 462 Mich at 8 n 9, quoting
approvingly from People v Krause, 185 Mich App 353, 358; 460 NW2d 900 (1990). Somewhat
incongruously, a defendant’s lack of remorse may be considered by a sentencing court, as it
bears relevance to an individual’s potential for rehabilitation, People v Wesley, 428 Mich 708,
711; 411 NW2d 159 (1987), and the potential for rehabilitation is a relevant criterion “in
fashioning an appropriate sentence.” Daniel, 462 Mich at 7 n 8.

       During his testimony, defendant admitted having referred to Carly as “an ungrateful,
snotty drama queen” in a letter written while he was incarcerated and awaiting trial. This
evidence sufficed to support Judge Rodgers’ invocation of defendant’s lack of remorse as a
ground for departure.

                                                -8-
       On the other hand, the 12-day search for Carly and the concomitant community fear do
not qualify as appropriate departure grounds. Michigan’s sentencing scheme, including the
guidelines, rest on the notion that punishment should fit the offense and the offender:

       [A] judge helps to fulfill the overall legislative scheme of criminal punishment by
       taking care to assure that the sentences imposed across the discretionary range are
       proportionate to the seriousness of the matters that come before the court for
       sentencing. In making this assessment, the judge, of course, must take into
       account the nature of the offense and the background of the offender. [Milbourn,
       435 Mich at 651.]

Community reaction to a crime is not an objective benchmark of the nature of the offense or the
character of the offender. Our system of justice is designed to shield the process from passing
sentence from the anger, fear, or prejudices of the community. By requiring judges to apply the
sentencing guidelines, we encourage a punishment decision driven by rules rather than passions.
Fidelity to the law requires that a judge blind himself to public clamor. The community’s
condemnation is subsumed in its verdict, the legislative sentencing guidelines, and the maximum
sentences prescribed by statute. Enhancing punishment based on a community’s outrage is an
invitation to sentencing inequity.5

       Nevertheless, like the panel that reviewed this case the first time, we conclude that
several aspects of the crime identified by Judge Rodgers and Judge Power justified an upward
departure. Irrespective whether these appropriate criteria sufficed to impose a departure
sentence, Judge Rodgers failed to justify the particular sentence he imposed.

             B. GROUNDS JUSTIFYING THE EXTENT OF THE DEPARTURE

        Under the guidelines, the highest minimum sentence available to the sentencing court
was a term of 22.5 years. Judge Rodgers imposed a minimum sentence of 40 years, exceeding
the guidelines by almost 180%. The sentence he imposed is equal to the highest sentence
prescribed by our Legislature for minors convicted of first-degree murder who do not receive a
sentence of imprisonment for life without parole eligibility. MCL 769.25(9).

       The reasonableness of defendant’s sentence hinges on the validity of Judge Rodgers’
explanation for imposing an extra 17.5 years’ imprisonment, as opposed to an additional 5, 8, or
10 years. The United States Supreme Court has observed that the greater the departure from the
sentencing range, the more compelling must be the justification for the departure. See Gall v
United States, 552 US 38, 50; 128 S Ct 586; 169 L Ed 2d 445 (2007) (“We find it
uncontroversial that a major departure should be supported by a more significant justification
than a minor one.”).


5
  Judge Rodgers also listed the Department of Corrections’ recommendation of an upward
departure as a reason for his decision. The use of a Department of Corrections’ agent’s
subjective opinion and recommendation was improper. People v Perry, 216 Mich App 277, 282-
283; 549 NW2d 42 (1996).


                                               -9-
       Judge Rodgers identified several facts justifying the extraordinary extent of the sentence
departure: (1) defendant’s uncharged crimes of criminal sexual conduct in the third degree (CSC-
3) and threatening a correctional officer and his family;6 (2) “escalating negative behavior [at]
school;” (3) the depravity of having allowed Carly to die without summoning aid; and (4) that
defendant had committed a first-degree murder. Two of these reasons—defendant’s uncharged
CSC-3 and that in Judge Rodgers’ view, defendant committed first-degree murder—do not
support a departure sentence. The remaining reasons do not justify the extent of the departure
sentence imposed.

        Defendant’s uncharged act of CSC-3 constitutes an offender characteristic accounted for
in the guidelines. Defendant engaged in sexual activity with his girlfriend, who at the time was
15 years old. This misconduct supplied the factual basis for Judge Power’s assessment of 25
points under OV 13. The 25-point score was the highest possible under OV 13.

       Moreover, had defendant actually been charged with and convicted of CSC-3, the highest
minimum imprisonment term available under the guidelines for that offense likely would not
have exceeded 40 months. And while defendant’s “Romeo and Juliet” sexual relationship with
his 15-year-old girlfriend was illegal, similar offenders almost always receive a probationary
sentence.

        The sentencing court may not base a departure “on an offense characteristic or offender
characteristic already taken into account in determining the appropriate sentence range unless the
court finds from the facts contained in the court record, including the presentence investigation
report, that the characteristic has been given inadequate or disproportionate weight.” MCL
769.34(3)(b). Not only was defendant’s CSC-3 incorporated within the calculation of OV 13, it
is simply not “compelling” or of “considerable worth” in evaluating the need for a lengthy
departure sentence. And Judge Rodgers neglected to elucidate why the 25 points scored for OV
13 were inadequate to punish this uncharged misconduct.

       Next, we turn to Judge Rodgers’ reasoning that defendant had actually committed first-
degree murder. Whether federal judges may rely on acquitted conduct to enhance sentences is a
hot-button issue in that arena. The dissenting opinion of Justice Scalia in Jones v United States,
574 US __; 135 S Ct 8; 190 L Ed 2d 279 (2014), succinctly summarizes the debate.7 The federal


6
  The PSIR includes a letter written by a Grand Traverse County sheriff’s deputy, recounting that
after the deputy informed defendant that he could not have a shower, defendant became angry
and asked “How’s your wife.” The letter continues: “This comment was overheard by Deputy
Rhoades and I came back to the cell to confirm what he had said. [Defendant] had a smile and
then stated ‘You can’t do anything.’ It’s obvious he meant this as a threat.”
7
  Justice Scalia, joined by Justices Thomas and Ginsburg, argued in Jones that “any fact
necessary to prevent a sentence from being substantively unreasonable—thereby exposing the
defendant to the longer sentence—is an element that must be either admitted by the defendant or
found by the jury. It may not be found by a judge.” Id. at 8 (emphasis in original). See also
Doerr, Not Guilty? Go To Jail. The Unconstitutionality of Acquitted-Conduct Sentencing, 41
Colum Hum Rts L Rev 235 (2009), United States v Faust, 456 F3d 1342, 1349 (CA 11, 2006)

                                              -10-
sentencing guidelines are advisory, permitting judges the freedom “to exercise broad discretion
in imposing a sentence within a statutory range.” United States v Booker, 543 US 220, 233; 125
S Ct 738; 160 L Ed 2d 621 (2005). Michigan’s guidelines are mandatory. The en banc Sixth
Circuit has observed, “Had the district court in this case relied on acquitted conduct in
determining the range under a mandatory guidelines regime, that sentence would have violated
the Sixth Amendment as interpreted in Booker.” United States v White, 551 F3d 381, 384 (CA 6,
2008) (emphasis in original).

        We reserve for another day the question of whether a Michigan judge may nullify a jury’s
verdict to enhance a defendant’s sentence. Regardless of the answer to that question, Judge
Rodgers erred by finding that in this case, defendant’s commission of a first-degree murder
supplied a lawful basis for a substantial departure sentence.

        That defendant premeditated or deliberated Carly’s death is not objectively verifiable,
and therefore cannot justify a departure. We acknowledge that in People v Claypool, 470 Mich
715, 729; 684 NW2d 278 (2004), a plurality of the Supreme Court suggested by way of obiter
dictum that under certain circumstances, objective and verifiable evidence of a defendant’s intent
may be available in the record. This is not such a circumstance, as amply demonstrated by the
jury’s verdict acquitting defendant of first-degree murder.8 Whether defendant premeditated or
deliberated Carly’s death is subject to various interpretations of the evidence. It is not capable of
being confirmed, and cannot serve as a ground for enhancing defendant’s sentence.

         Moreover, the guidelines account for defendant’s intent, rendering this subject
inappropriate for departure. OV 6 addresses the “offender’s intent to kill or injure another
individual.” A sentencing court scores 50 points if “the offender had premeditated intent to
kill[,]” and 25 points if the offender “had unpremeditated intent to kill[.]” MCL 777.36(1),
(1)(b). Judge Power scored 25 rather than 50 points. Because the facts relevant to defendant’s
intent were securely anchored within the scoring of OV 6, Judge Rodgers erred by basing a
departure on a contradictory finding. Judge Rodgers’ view that defendant committed first-degree
murder neither supplies a proper ground for departure nor justifies the extent of the departure
sentence imposed.

        The remaining grounds for departure identified by Judge Rodgers do not justify the
substantial discrepancy between the guidelines sentence and the sentence imposed. While
threatening a corrections officer could qualify as a ground for departure, the “threat” involved
here was a puerile and nonsensical question (“How’s your wife[?]”) asked of a guard by a 17-
year-old who was angry that he could not have a shower. We certainly do not condone such
insolence, but are hard-pressed to find that this single remark justifies an additional 17.5 years’
(BARKETT, J., specially concurring); United States v Fitch, 659 F3d 788, 799 (CA 9, 2011)
(GOODWIN, J., dissenting); United States v Canania, 532 F3d 764, 776-778 (CA 8, 2008)
(BRIGHT, J., concurring); United States v White, 551 F3d 381, 386 (CA 6, 2008) (MERRITT, J.,
dissenting).
8
  In dissent in Claypool, Chief Justice Corrigan emphasized, “The state of a defendant’s mind is
an inherently subjective factor and cannot suffice as an objective and verifiable factor for a
sentencing departure.” Id. at 738.


                                                -11-
imprisonment. Nor did Judge Rodgers explain why defendant’s “escalating negative behavior at
school” was so compelling or exceptional that it warranted a major enhancement of defendant’s
guideline sentence.

       Nor can we agree that defendant’s “depraved” conduct in this case constituted an
extraordinary circumstance justifying a 180% departure. We agree with Judge Rodgers that
defendant’s failure to summon aid for Carly as she lay dying is a horrible fact and consistent
with “a depraved heart.” But a killer’s failure to summon aid for a dying victim is hardly
unusual or extraordinary. The New York Court of Appeal observed,

               [A] killing . . . is not transformed into depraved indifference murder
       simply because the killer does not summon aid for the victim. Otherwise,
       homicides would be routinely and improperly converted into depraved
       indifference murders whenever—as is often the case—the killer leaves the scene.
       [People v Suarez, 6 NY3d 202, 210; 811 NYS2d 267; 844 NE2d 721, 727
       (2005).][9]

That defendant did nothing to save Carly’s life after strangling or stabbing her evidenced his
intent to kill her. His indifference to her fate explains, in part, his conviction for second-degree
murder rather than involuntary manslaughter.

        Second-degree murder is “the unlawful killing of one human being by another with
malice. . . .” People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868 (1998). To establish
second-degree murder, the prosecution must prove beyond a reasonable doubt that the defendant
possessed an intent to kill or an intent to do great bodily harm, or created a very high likelihood
that his actions would result in death or great bodily harm. People v Dykhouse, 418 Mich 488,
495; 345 NW2d 150 (1984). As our Supreme Court explained in Goecke, 457 Mich at 467
(citation omitted), the third of these “intent” descriptions corresponds to a killing committed with
“an abandoned and malignant heart.” In this variant of second-degree murder, malice is “implied
“when the defendant does an act with a high probability that it will result in death and does it
with a base antisocial motive and with wanton disregard for human life.” Id. (quotation marks
and citation omitted). In other words, in this category of second-degree murder, “malice requires
egregious circumstances.” Id.

        Given that second-degree murder corresponds to a murder committed with an extreme
indifference to the value of human life, it is fair to say that all such crimes qualify as “depraved.”
Virtually all involve killers who made no effort to provide aid to their victims. Judge Rodgers
failed to explain how this second-degree murderer so exceeds other second-degree murderers in
moral culpability that he should be punished for almost twice as long.




9
  In Suarez, the Court of Appeals was construing a New York statute that classifies certain
second-degree murders as “depraved indifference murder in the second degree.” Id. at 206. In
New York, depraved indifference murder involves reckless rather than intentional acts.


                                                -12-
       Departure sentencing offers an “escape valve” from the constraints of the mandatory
sentence guidelines. That valve may be opened only in unique and extraordinary circumstances,
but only to the extent that the departure sentence is proportionate to the offense and the offender.
Here, some grounds exist for turning on the escape valve. Others do not. The appropriate
grounds for departure cited by Judge Rodgers do not account for the magnitude of the departure
sentence he imposed. Accordingly, we again vacate defendant’s sentence and remand for
resentencing.

        We further direct that defendant be resentenced by a different judge appointed by the
State Court Administrative Office. Judge Rodgers’ comments at defendant’s resentencing reflect
that his opinions regarding an appropriate sentence are strongly held. While Judge Rodgers may
be capable of banishing from his mind the personal views he has so forcefully expressed, to
avoid the appearance of impropriety on remand and to shield the judicial process from any
possible suspicion of bias, a new judge must resentence defendant.

       We vacate defendant’s sentence and remand for resentencing in conformity with this
opinion. We do not retain jurisdiction.



                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Deborah A. Servitto




                                               -13-
