                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 3, 2018
               Plaintiff-Appellee,

v                                                                   No. 335670
                                                                    Wayne Circuit Court
JASON CONRAD STREATER,                                              LC No. 16-004292-01-FC

               Defendant-Appellant.


Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ.

GLEICHER, P.J. (concurring in part and dissenting in part).

        I agree that defendant’s torture conviction must be vacated and that defendant must be
resentenced. The majority fails to mention that the sentences imposed for defendant’s other
convictions represent a substantial departure. Nor does the majority acknowledge that the trial
court abused its discretion by failing to justify the departure and by expressly disavowing the
guidelines entirely. Judge Vonda Evans’ remarks persuade me that resentencing before a
different judge is required to preserve the appearance of fairness and because the trial court is
unlikely to set aside its strongly expressed views, especially absent any guidance from this Court.

                                                 I

        Defendant advanced three issues on appeal, including that the trial court abused its
discretion by imposing an unreasonable and disproportionate departure sentence. Other than
remanding for resentencing consistent with People v Steanhouse, 500 Mich 453; 902 NW2d 327
(2017) (Steanhouse II), the majority entirely avoids this issue, ignoring that defendant has
properly requested plenary review of his sentence. I am puzzled by the majority’s reliance on
the Supreme Court’s opinion in Steanhouse II as a ground for remanding this case to the trial
court without reasonableness review. Steanhouse II governs appellate review of departure
sentences:

       We affirm the Court of Appeals’ holding in People v Steanhouse, 313 Mich App
       1; 880 NW2d 297 (2015) [Steanhouse I], that the proper inquiry when
       reviewing a sentence for reasonableness is whether the trial court abused its
       discretion by violating the “principle of proportionality” set forth in People v
       Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990), “which requires sentences
       imposed by the trial court to be proportionate to the seriousness of the


                                               -1-
       circumstances surrounding the offense and the offender.” [Steanhouse II, 500
       Mich at 459-460 (emphasis added).]

        Steanhouse II did not change any of the rules that applied to trial courts when defendant
was sentenced; rather, the Supreme Court resolved how this Court should evaluate challenges to
departures. Then as now, People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), applied to
sentencing decisions in the trial court. Then as now, the proportionality approach set forth in this
Court’s opinion in Steanhouse I guided departure sentencing. By refusing to review defendant’s
sentence for reasonableness, the majority disregards Steanhouse II and otherwise kicks the can
down the road, instructing the trial court to resentence defendant based on precisely the same
legal principles that existed when the trial court imposed the initial departure sentence.

       The majority’s approach is reminiscent of the Crosby remand procedure adopted in
Steanhouse I and jettisoned by the Supreme Court in Steanhouse II. In Lockridge, the Supreme
Court adopted a remand procedure modeled on United States v Crosby, 397 F3d 103, 117-118
(CA 2, 2005). The Supreme Court limited Crosby remands to defendants whose guidelines
minimum sentence range was constrained by a Sixth Amendment violation and who minimum
sentences were not upward departures. Lockridge, 498 Mich at 395. Despite that the Supreme
Court specifically exempted departure sentences from Crosby remands, this Court embraced
Crosby in Steanhouse I, holding:

       While the Lockridge Court did not explicitly hold that the Crosby procedure
       applies under the circumstances of this case, we conclude that this is the proper
       remedy when, as in this case, the trial court was unaware of, and not expressly
       bound by, a reasonableness standard rooted in the Milbourn principle of
       proportionality at the time of sentencing. [Steanhouse I, 313 Mich App at 48.]

The Supreme Court reversed this aspect of Steanhouse I, stating quite plainly, “[T]he purpose for
the Crosby remand is not present in cases involving departure sentences.” Steanhouse II, 500
Mich at 476. The Supreme Court explained that “the panel in Steanhouse [I] should have
reviewed the departure sentence for an abuse of discretion, i.e., engaged in reasonableness
review for an abuse of discretion informed by the ‘principle of proportionality’ standard.” Id.
The Court remanded the case to this Court “to consider the reasonableness of the defendants’
sentences under the standards set forth in this opinion.” Id.

        So why is the majority remanding this case for another sentencing hearing? In my view,
the majority is doing precisely what the Supreme Court told us not to do in Steanhouse II. Our
job is to review defendant’s sentences for reasonableness. By dodging the merits of defendant’s
reasonableness argument the majority abrogates this important responsibility.1




1
  Nor does the majority explain why our decision to vacate defendant’s torture conviction should
play any role in the resentencing. The trial court sentenced defendant separately (although to the
same terms of years) for each conviction. Vacating the torture conviction does not change the
guidelines scores for the arson conviction.

                                               -2-
        As we are obligated by Steanhouse II to review defendant’s departure sentences for
reasonableness (and not punt this duty to the trial court), I will proceed to explain the trial court’s
errors and the reasons defendant should be resentenced by a different judge.

                                                  II

        Before defendant was sentenced, the Department of Corrections (DOC) prepared a
presentence investigation report (PSIR) and sentencing information report (SIR). The DOC
scored several prior record variables—PRVs 1, 2, 5, and 7. At sentencing, defendant challenged
these scores. The court ultimately eliminated the points assessed for PRVs 1, 2, and 5, leaving
defendant with a total PRV score of 20 and placement within PRV Level C.

        The DOC also assigned points for various offense variables. The DOC scored 20 points
for OV 1 (aggravated use of a weapon), 15 points for OV 2 (lethal potential of the weapon used),
25 points for OV 3 (physical injury to a victim), 10 points for OV 4 (psychological injury to a
victim), 25 points for OV 6 (intent to kill or injure a victim), and 50 points for OV 7 (aggravated
physical abuse). Defendant’s total OV score was 145 points, placing him in OV Level VI. A
handwritten entry on the SIR indicates that defendant’s guidelines range was 135 to 281 months’
imprisonment.

        The trial court acknowledged the minimum sentencing guidelines range, but instead
sentenced defendant to 30 to 60 years imprisonment for the arson and assault with intent to
commit murder convictions. Defendant’s minimum sentence of 30 years (360 months) was 79
months (more than 6½ years) beyond the high end of the sentencing range. The court explained
its sentencing decision as follows:

               This case was horrific. It was the tale of two broken people trying to heal
       one another. [Defendant’s] letter indicated that there was an alcohol issue, which
       I do believe they both suffered from. According to his letter, she had given him
       some type of communicable disease, I believe herpes, and he was upset about
       that, that she had gotten from a previous relationship. I don’t know if that’s true
       or whatever, but it may be.

                But she, like so many women, wanted to be loved. And she looked for a
       man to complete her, instead of to compliment her. And what that did is . . . gave
       you the power to be the king of that home. In your letter, it says that you knew
       that . . . the daughter’s father was not present in her life, and that: . . . “We had a
       very good relationship, and I was a good fit for her as well as her daughter. I was
       a good father figure, stepping in and doing the things her father didn’t, and still
       taking care of my son in school.”

              What you understood is that - - you sized her up. You knew that she did
       not have a man, and the fact that you could come into your [sic] life, and that you
       were able to do that . . . because she was vulnerable. She was vulnerable in that
       she wanted a man to care for her.

              Your insecurities led you to continually ask her whether or not she was
       cheating on you. You couldn’t accept the fact that here’s a woman who opened
                                                 -3-
her heart to you. Whether or not there was some type of exchange, or some type
of disease, I don’t know. But the point of it is . . . that even when she took the
stand, she said: “We moved there together.” And I could hear her voice, which
was so damaged because of the trache that she had to receive, that . . . it was
almost as if she was really happy during that time. You could hear it in her voice.

        And what she thought was going to be a happy ending turned into a
horrific ending. The only thing I can imagine is when her daughter said: “You
know what? When I saw my mother, she was pink.” How that had to impact her,
to see her beautiful mother, hair gone, and her behind all pink. The scarring was
horrific.

        And that you then concocted a scheme to cause the smoke alarm to go off,
to get her to come downstairs, and then to have gasoline in the can, and throw it in
face, and light her on fire. What punishment? What could she have done that
could have warranted her to be treated in that fashion? It was horrible.

       See, she had the courage, after the incident, to do what she should have
done before the incident, and that was to get rid of you. You’re a monster.

                                      * * *

       And you felt so bad about it that you went and stood in the same flames
that you set for her to injure yourself, and to have some level of pity. And all she
wanted from you was love.

        See, a woman’s greatest treasure, you know what it is? It’s her family.
And when she allowed her daughter to be around you, she gave all she had,
because a real woman is not gonna’ [sic] ever let you even come into contact with
her child. But she trusted you. And you preyed upon her.

        Here’s a single woman, who doesn’t have a male influence in her life, and
“I’m gonna’ come in, and I’m gonna’ step up, and I’m gonna’ run things [sic].”
You even had the audacity, the audacity, to say something about settin’ [sic]
somebody on fire, or about: “Somebody’s gonna’ die [sic],” in front of her . . .
cousin.

                                      * * *

[Y]ou might not have said it, but you set her on fire. That you did, okay? And
then to summon someone down by making . . . the smoke detector come on? That
was deliberate, that was intentional. And then to throw gasoline in her face and
light her on fire? And all her daughter could hear was her mother screamin’ and
callin’ her name [sic]. That’s probably the last time she ever heard her mother’s
voice.

     That little girl has to go on. That little girl is gonna’ [sic] become a
woman one day. And I hope to God that she doesn’t run into a Jason Streater,

                                       -4-
       who she’s looking to complete her, who she’s looking for to give her love and the
       courage that she can only give herself. I hope that doesn’t happen to that little
       girl.

               But today is the day that you come to meet your fate.

               You know, one of the greatest things that [has] happened to many
       defendants is that there are now no guidelines. It used to be that there were
       guidelines. So, the Court has been able to sometimes do what it wants to do, . . .
       to fashion a sentence that meets the crime, so that if I don’t believe in what the
       prosecutor recommends, then I can, in my willingness, decide to not go with that.

               Since that law has changed, I probably have gone beneath the guidelines
       many times, and fashioned a sentence that I believe, based on my twenty-plus
       years of being a judge and a prosecutor, of giving a sentence that will not only
       protect the community, but will also penalize the person that comes before me.

               Today I’m challenged with different facts. [Emphasis added.]

The court proceeded to impose its upwardly departing sentences.

        In rebuffing defendant’s request for resentencing before a different judge, the majority
asserts that the sentencing court “committed no error cognizable at this stage of the proceedings,
nor has any finding or statement that she made been determined to be erroneous.” Those
statements are wrong.

        Defendant was sentenced on September 22, 2016, more than a year after the Supreme
Court decided Lockridge. In Lockridge, 498 Mich at 391, the Supreme Court made it abundantly
clear that although the sentencing guidelines are advisory rather than mandatory, “they remain a
highly relevant consideration in a trial court’s exercise of sentencing discretion.” The Supreme
Court emphasized, “Sentencing courts must . . . continue to consult the applicable guidelines
range and take it into account when imposing a sentence. Further, sentencing courts must justify
the sentence imposed in order to facilitate appellate review.” Id. at 392.

        The trial court’s statement, “You know, one of the greatest things that [has] happened to
many defendants is that there are now no guidelines”, directly contradicts Lockridge. The
majority asserts that the court’s deliberate disregard of Lockridge’s basic underlying premise was
not error. I find this proposition preposterous.2

       Defendant’s sentencing also occurred almost a year after this Court issued Steanhouse I.
Steanhouse I adopted the principle-of-proportionality test advanced in People v Milbourn, 435

2
  The majority justifies its remand by claiming that the trial court likely “misunderstood”
Lockridge, or “inartful[ly] express[ed]” that the guidelines were no longer mandatory. I will not
presume to read the trial court’s mind. Our job is to review whether a departure sentence is
reasonable by considering whether the trial court abused its discretion by violating the principle
of proportionality described in Milbourn. The majority shirks that responsibility.

                                              -5-
Mich 630; 461 NW2d 1 (1990). That test, Steanhouse I highlighted, “require[d] sentences
imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding
the offense and the offender.” Steanhouse I, 313 Mich App at 45, citing Milbourn, 435 Mich at
636. In Milbourn, 435 Mich at 653-654, the Supreme Court specifically renounced sentencing
based on a trial court’s feeling that it could do whatever it wanted:

       The trial court appropriately exercises the discretion left to it by the Legislature
       not by applying its own philosophy of sentencing, but by determining where, on
       the continuum from the least to the most serious situations, an individual case
       falls and by sentencing the offender in accordance with this determination.

       The trial court was bound to follow Lockridge and Steanhouse I when it sentenced
defendant. Instead, it boastfully disconnected its sentencing calculation from the guidelines,
thereby contravening Lockridge, and imposed a sentence untethered to the Milbourn
proportionality principles reaffirmed in Steanhouse I. In September 2016, Lockridge,
Steanhouse, and Milbourn were not cutting-edge concepts. By disregarding these legal precepts
to underplay (or shroud) the magnitude of the trial court’s errors, the majority ensures that this
case will return.

       A common thread in the line of sentencing cases both before and after Lockridge is that a
court may not depart from the guidelines range based on factors already taken into account by
the guidelines unless the court articulates a legitimate reason for doing so. In determining
whether the chosen departure sentence is more proportionate than a guidelines sentence, relevant
considerations include: “(1) whether the guidelines accurately reflect the seriousness of the
crime, . . . (2) factors not considered by the guidelines, . . . and (3) factors considered by the
guidelines but given inadequate weight.” People v Dixon-Bey, 321 Mich App 490, 525; ___
NW2d ___ (2017) (citations omitted). Although Dixon-Bey was decided after defendant was
sentenced, this aspect of its holding summarizes well-established principles predating 2016.

        Here, the trial court reasoned that an upward departure was warranted because (1) the
case was horrific, (2) defendant sized Thomas up, exploited her vulnerability, and preyed upon
her, (3) defendant concocted a scheme, lured Thomas downstairs, and set her on fire because
defendant was insecure and sought to punish Thomas for alleged infidelity, (4) the potential
impact the crime had on Thomas’s daughter, and (5) defendant was a monster.

       First-degree arson and assault with intent to commit murder are Class A offenses that are
punishable by a maximum of life imprisonment. MCL 777.16c; MCL 777.16d. The guidelines
provide a specific sentencing grid for that crime class. See MCL 777.62 (providing the
minimum sentencing range for Class A crimes). Thus, the structure of the guidelines takes into
account the seriousness of defendant’s crime. See People v Smith, 482 Mich 292 at 311 n 42;
754 NW2d 284 (2008) (explaining that that a departure cannot be based solely on the
heinousness of a particular type of crime because “the Legislature did not overlook this basis fact
when establishing sentencing guidelines for [those] crimes”).

       The “horrific” nature of defendant’s specific acts, as well as his “monstrous” behavior,
were also taken into account in the scoring of several OVs. The scores for OVs 1 and 2 reflect
that defendant used an “incendiary device,” i.e. gasoline, in his assault against Thomas. See

                                               -6-
MCL 777.31(1)(b), (3)(b); MCL 777.32(1)(b), (3)(d). Defendant’s 25-point score for OV 3
reflected that he inflicted “[l]ife threatening or permanent incapacitating injury” on Thomas.
MCL 777.33(1)(c). The assessment of 10 points for OV 4 was the highest possible to reflect the
psychological injury caused to Thomas. MCL 777.34(1)(a). Defendant was assessed 25 points
for OV 6, reflecting that he possessed a serious malicious intent—“unpremeditated intent to
kill.” Defendant’s 50-point score for OV 7 reflected that he treated Thomas “with sadism,
torture, excessive brutality, or similarly egregious conduct designed to substantially increase the
fear and anxiety a victim suffered during the offense.” The court did not explain why these
scores were inadequate to measure the serious nature of defendant’s offenses.

        The Milbourn Court found that “departures from the guidelines, unsupported by reasons
not adequately reflected in the guidelines variables, should . . . alert the appellate court to the
possibility of a misclassification of the seriousness of a given crime by a given offender and a
misuse of the . . . sentencing scheme.” Milbourn, 435 Mich at 659. The Court explained:

       Where there is a departure from the sentencing guidelines, an appellate court’s
       first inquiry should be whether the case involves circumstances that are not
       adequately embodied within the variables used to score the guidelines. A
       departure from the recommended range in the absence of factors not adequately
       reflected in the guidelines should alert the appellate court to the possibility that
       the trial court has violated the principle of proportionality and thus abused its
       sentencing discretion. Even where some departure appears to be appropriate, the
       extent of the departure (rather than the fact of the departure itself) may embody a
       violation of the principle of proportionality. . . . [Id. at 659-660 (emphasis
       added).]

The majority gives the trial court another chance to follow the law that was in effect at the time
the original sentence was handed down. While I agree that resentencing is required, the trial
court’s rejection of the role of the guidelines and its brazen disregard for the procedural format
governing the sentencing process convinces me that another judge must conduct the
resentencing.

                                                III

       In evaluating whether resentencing should take place before a different judge, we
consider:

       (1) whether the original judge would reasonably be expected upon remand to have
       substantial difficulty in putting out of his or her mind previously-expressed views
       or findings determined to be erroneous or based on evidence that must be rejected,
       (2) whether reassignment is advisable to preserve the appearance of justice, and
       (3) whether reassignment would entail waste and duplication out of proportion to
       any gain in preserving the appearance of fairness. [People v Hill, 221 Mich App
       391, 398; 561 NW2d 862 (1997) (quotation marks and citations omitted).]

“A case should be assigned to a different judge if it would be unreasonable to expect the trial
judge, given her handling of the matter, to be able to put previously expressed findings out of

                                               -7-
mind without substantial difficulty.” People v Pillar, 233 Mich App 267, 270-271; 590 NW2d
622 (1998).

        The trial court expressed considerable anger and outrage about facts unrelated to the
crime. The court spoke at length about the defendant’s relationship with Thomas, which the trial
court took pains to characterize as dysfunctional. In the court’s view, defendant sought “the
power to be the king of that home,” and became involved with Thomas because “she was
vulnerable and wanted a man to care for her.” Thomas “wanted to be loved,” the trial court
observed, and “looked for a man to complete her, instead of to compliment her.” According to
the court the defendant “sized her up” and because the defendant himself was insecure, “couldn’t
accept the fact that here’s a woman who opened her heart to you.” The trial court’s focus on this
background information persuades me that its sentencing decision flowed from its perception
that defendant wronged Thomas simply by being in a relationship with her. I find none of this
relevant, and all of it outside the boundaries of proper sentencing considerations.

        The trial court also made no effort to hide her view of defendant as “a monster,” a
“broken” person, and a predator. These forcefully expressed opinions suggest that it will be
difficult for the court to objectively resentence defendant according to the proportionality
principles, as one such principle requires a careful and even-handed evaluation of the offender’s
background. Milbourn, 435 Mich at 651.

        The trial court also expressed outrage regarding the nature of the offense. Without
question, defendant’s crime was hideous. The victim sustained life-long, painful and disfiguring
injuries. The Legislature anticipated hideous crimes and grievously injured victims and
developed a guideline system designed to take into account the terrible things people do to each
other. But the hideous nature of a crime must not blind us to a judge’s violation of the rules of
the law. Those rules require judges to focus on both the nature of the offense and any mitigating
evidence factors involving the defendant himself. The trial court broke those rules.

        Defendant had no history of violent crime and no juvenile record. He was employed at
the time he committed the offenses. His prior convictions were primarily alcohol and drug
related. He was 45 years old when he was sentenced. The judge considered none of these
potentially mitigating facts. Instead, the trial court expressed that its job was to “giv[e] a
sentence that will not only protect the community, but will also penalize the person that comes
before me.” This sentiment notably omits another essential component of every sentencing
decision: rehabilitation.

        I believe that resentencing before a different judge is warranted for two reasons. First,
given the trial court’s undisguised loathing of defendant, the court is unlikely to put aside its
views and sentence him on a clean slate. Second, reassignment is necessary to preserve the
appearance of justice. Defendant committed a terrible crime. But by calling defendant a
“monster” and a predator the trial court has signaled that it finds him unworthy of the balanced
consideration required by Milbourn. “The sentencing judge should appear as the fountainhead of
justice, not the spirit of revenge.” Commonwealth v Spencer, 344 Pa Super 380, 399; 496 A2d
1156 (1985) (SHOYER, J., concurring). Defendant committed a heinous crime. He is
nevertheless entitled to sentencing by a judge whose impartiality will not be subject to further


                                              -8-
debate. Defendant’s resentencing should be conducted by a jurist proceeding under the rule of
law, not a judge motivated by anger and disgust.



                                                         /s/ Elizabeth L. Gleicher




                                            -9-
