                          STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 May 22, 2018
               Plaintiff-Appellant,

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

               Defendant-Appellee.


                                        ON REMAND

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

K. F. KELLY J. (dissenting)

       I respectfully dissent. Under the newly-stated framework for evaluating sentences, I
would affirm defendant’s sentence.

         In People v Schwander, unpublished per curiam opinion of the Court of Appeals, issued
July 21, 2015 (Docket No. 320768 (“Schwander II”), our Court quoted at length Judge Rodgers’
justifications for sentencing defendant as he did:

               Judge Rodgers commenced defendant’s resentencing by outlining the
       “substantial, compelling and objective reasons” for a departure sentence. Echoing
       Judge Power, Judge 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 the 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:”
                                              -1-
       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 [People v] Milbourn[, 435 Mich
       630; 461 NW2d 1 (1990)] 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.

        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:



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             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 . . . , 393 Michigan 460. And, I would
             direct you to pages 468 and 469. Premeditated 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.

              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:

                     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 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 . . . . [Schwander II,
             unpub op at 2-5 (emphasis added).]

        As this Court recently explained in People v Dixon-Bey, 321 Mich App 490; ___ NW2d
___, lv pending, slip op at 16:

      “A sentence that departs from the applicable guidelines range will be reviewed by
      an appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392;
      870 NW2d 502 (2015). “[T]he standard of review to be applied by appellate
      courts reviewing a sentence for reasonableness on appeal is abuse of discretion.”

                                             -3-
       People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017) [Steanhouse II].
       In Steanhouse, the Michigan Supreme Court clarified that “the relevant question
       for appellate courts reviewing a sentence for reasonableness” is “whether the trial
       court abused its discretion by violating the principle of proportionality....” Id. The
       principle of proportionality is one in which

               “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.” [Id. at 472], quoting Milbourn, 435 Mich [at 651].

       Under this principle, “ ‘[T]he key test is whether the sentence is proportionate to
       the seriousness of the matter, not whether it departs from or adheres to the
       guidelines’ recommended range.’ ” Steanhouse II, 500 Mich at 472, quoting
       Milbourn, 435 Mich at 661. [Dixon-Bey, 321 Mich App at 490 slip op at 16.]

The sentencing guidelines are an “aid to accomplish the purposes of proportionality . . . .” Id. at
___; slip op at 18. Our Court elaborated:

       Because the guidelines embody the principle of proportionality and trial courts
       must consult them when sentencing, it follows that they continue to serve as a
       ‘useful tool’ or ‘guideposts’ for effectively combating disparity in sentencing.
       Therefore, relevant factors for determining whether a departure sentence is more
       proportionate than a sentence within the guidelines range continue to include (1)
       whether the guidelines accurately reflect the seriousness of the crime, People v
       Houston, 448 Mich 312, 321-322; 532 NW2d 508 (1995), see also Milbourn, 435
       Mich at 657, (2) factors not considered by the guidelines, Houston, 448 Mich at
       322-324, see also Milbourn, 435 Mich at 660, and (3) factors considered by the
       guidelines but given inadequate weight, Houston, 448 Mich at 324-325, see also
       Milbourn, 435 Mich at 660 n 27. [Dixon-Bey, 321 Mich App at 490; slip op at
       18-19.]

Other factors to consider “include ‘the defendant’s misconduct while in custody, Houston, 448
Mich at 323, the defendant’s expressions of remorse, id., and the defendant’s potential for
rehabilitation, id.’ ” Dixon-Bey, 321 Mich App 490; slip op at 19 n 9. However, this Court has
stressed that the proportionality review is “based upon the seriousness of the offense and not a
deviation from the guidelines.” Dixon-Bey, 321 Mich App 490; slip op at 22. And our Supreme
Court has noted:

       Rather than impermissibly measuring proportionality by reference to deviations
       from the guidelines, our principle of proportionality requires “sentences imposed
       by the trial court to be proportionate to the seriousness of the circumstances
       surrounding the offense and the offender.” Milbourn, 435 Mich at 636.
       [Steanhouse II, 500 Mich at 474.]

                                                -4-
        Both Schwander I and Schwander II reviewed the departure sentence under the
legislatively created “substantial and compelling” framework which has since been struck down
as unconstitutional. Lockridge, 498 Mich at 391-392. The former “substantial and compelling”
framework has been replaced by Milbourn’s principle of proportionality, Steanhouse II, 500
Mich at 459-460.

        I would conclude that the trial court’s sentence was reasonable, as the trial court did not
abuse its discretion in determining that the sentence was proportionate to the crimes. People v
Walden, 319 Mich App 344, 351; 901 NW2d 142 (2017). The record is quite clear that the trial
court considered the nature of the offense and the background of the offender. The trial court
also discussed why some of the guidelines did not adequately address the circumstances of this
case and this particular offender. The trial court took the sentencing guidelines into
consideration but concluded in great detail that a longer sentence was more appropriate. Such a
conclusion was not an abuse of discretion. Again, although trial courts must consider the
guidelines when fashioning a sentence, “ ‘the key test is whether the sentence is proportionate to
the seriousness of the matter, not whether it departs from or adheres to the guidelines’
recommended range[.]’ ” Steanhouse II, 500 Mich at 475, quoting Milbourn, 435 Mich at 661.
As a result, the focus of our review is whether the trial court’s sentence was proportionate to the
seriousness of the crime, which is determined in part by the factors outlined in Milbourn. I
believe that the trial court did just that and that the resulting sentence was reasonable. I would
affirm.

                                                            /s/ Kirsten Frank Kelly




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