            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


 PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                       March 24, 2020
                Plaintiff-Appellee,

 v                                                                     No. 346248
                                                                       Kent Circuit Court
 DOUGLAS JAMES CRYSTAL, JR.,                                           LC No. 17-010774-FH

                Defendant-Appellant


Before: MARKEY, P.J., and GLEICHER and M. J. KELLY, JJ.

PER CURIAM.

         Defendant pleaded no contest to several charges arising from a fatal accident caused by his
intoxication and reckless driving. The court departed upward from the recommended minimum
sentencing guidelines range of 43 to 86 months to sentence defendant to a minimum sentence of
10 years (120 months), a departure of nearly three years. The trial court neither referenced any
specific sentencing factor nor determined that a factor inadequately addressed the circumstances
in this case. The court justified the departure sentence by repeatedly emphasizing that defendant
intended the horrific results of the accident, a fact unsupported in the record. Accordingly, we
affirm defendant’s convictions, vacate his sentences, and remand for resentencing before a
different judge.

                                        I. BACKGROUND

         On the afternoon of September 15, 2017, defendant attended a golf outing for work and
consumed 8.5 to 9.5 alcoholic drinks. Defendant then drove himself home at the reckless speed
of 91 mph. Defendant approached an intersection and slowed to 60 mph, but did not stop at the
stop sign. He t-boned the vehicle crossing through the intersection, killing the driver and severely
and permanently injuring her five-year-old twin sons who rode in the backseat. Defendant fled
the scene on foot and police could not locate him until he returned home the following morning.
In exchange for the dismissal of several charges against him, defendant pleaded no contest to
failure to stop at the scene of an accident when at fault and that resulted in death, MCL 257.617(3),
operating a vehicle while intoxicated causing death, MCL 257.625(4)(a), and operating a vehicle
while intoxicated causing serious injury, MCL 257.625(5)(a).



                                                -1-
       Before sentencing, the Department of Corrections scored defendant’s offense and prior
record variables. Defendant’s total OV score of 130 points placed him in OV Level VI. His total
PRV score of 20 points placed him in PRV Level C, giving him a minimum sentencing guidelines
range of 43 to 86 months for his most serious offense. After hearing from members of the victims’
family and defendant, the court explained its sentencing decision as follows:

              Well, I am very familiar with the facts and circumstances of this. I . . . have
       read and reviewed all of the medical records. I’ve had numerous conversations
       with the attorneys involved in this and the Prosecutor involved in this.

               You entered pleas, sir, to failing to stop at an accident causing death, which
       carries a maximum penalty of 15 years, as well as drunk driving causing death,
       which also carries a maximum penalty of 15 years, as well as drunk driving causing
       a serious injury which carries a maximum penalty of five years. You entered no
       contest pleas to those, because you have no memory of the accident - - or the
       incident, I should say. Not accident.

              [Y]ou’ve had one prior jail sentence. You’ve been on probation a couple
       times. You’re 36 years old. You really have no record other than some minor
       misdemeanors a while ago. You have no felonies; no juvenile court record.

               This was a terrible situation where you went to a work-related event at a
       golf course, you started drinking. You had somewhere between eight and nine
       drinks. And then you ended up making a decision to drive home. . . . [F]ive
       seconds before the impact, you were driving at 90 miles an hour. You T-boned this
       other car. You killed this woman. You severely injured these twins.

              I . . . understand, sir, from everything that I have read and reviewed, that
       you are a . . . married individual who has three small children, yourself. I believe
       boys that are 10, eight, and five. That you’re active in your church. That you
       volunteered at . . . sports and coaching for kids. That you’re a family man. That
       you really have no history of drinking and driving.

               And one thing stood out to me as I was reading letters, not only from you,
       but a lot of your friends and family members, is that they kept relating this as an
       accident. This was not an accident under any . . . circumstances.

               Sir, you did not accidentally fall down and drink six or eight drinks at the
       golf course. You didn’t not [sic] accidentally fall down and get behind the wheel
       of a car. You did not accidentally put your key in and start that car and drive it.
       And you did not accidentally go 90 miles an hour and hit and kill . . . this woman
       and these two purely innocent little five-year-old boys, who were so seriously
       injured. This was your choice to drink and drive. And you made that decision and
       you have to live with the consequences of those actions.

              And you have to look at what . . . your poor choices on that particular day
       have done. I mean, you’ve destroyed this one family. You’ve destroyed . . . these

                                                -2-
two little innocent kindergarteners. And you’ve done this to your own family also.
You’ve ripped apart your family and this community. This is just a horrific
nightmare.

       I have . . . been involved in cases for 33 years as an attorney. I’ve been 12
years on the bench. I’ve dealt with . . . over 200 murder or death cases. These are
the most egregious injuries that I have ever seen. I mean, this was a loving woman,
a mother of twins that you killed, and these poor little boys. I mean, do you realize
what they are now, and what the situation is?

         This one little boy . . . has severe traumatic brain injury. He’s never going
to be able to walk, talk, eat, feed himself or breath. He’s in a wheelchair for the
rest of his life. His retinas were torn in this accident. He can’t even see. And what
did this little boy do?

       It was you that made a decision to drink and drive and cause this.

       His brother has also some traumatic brain injury but not as severe. He’s
also had to have surgery on his mouth. And these little boys have no mother
anymore, all because you decided to drink and drive.

        There are Sentencing Guidelines for a judge to impose a minimum sentence.
On this the Guidelines call for a minimum sentence between 43 and 86 months on
the two 15-year maximums. And 12 to 14 months on the five-year maximum. That
range of 43 to 86 months is somewhere for your minimum sentence to be between
three years and seven months and seven years and two months. . . .

       But, quite frankly, I don’t believe those Guidelines take into effect the
seriousness of the nature of the injuries, that you killed this person, and what you’ve
done to these two little boys, as I’ve already articulated.

         I am aware of People v Tanner, [387 Mich 683; 199 NW2d 202 (1972),]
which says I can impose no more than two-thirds of a maximum sentence. Under
this circumstance, that would be ten years.

        I’m aware of People v Lockridge, [498 Mich 358; 870 NW2d 502 (2015),]
that says that the Guidelines are not only advisable [sic] and I need to impose a
reasonable sentence.

       And I’m also aware of People v Milbourn, [435 Mich 630; 461 NW2d 1
(1990),] that I need to impose a proportionate sentence.

       Sir, it is the sentence of this Court that you be committed to the Michigan
Department of Corrections to serve a minimum of ten years to a maximum of 15
years on both of the 15-year felonies.




                                         -3-
                You’ll serve three to five years with regards to this OUIL causing serious
       injury. By law those must be served concurrently. You’re entitled to six days credit
       on that.

       We granted defendant’s delayed application for leave to appeal his upwardly departing
sentences. People v Crystal, unpublished order of the Court of Appeals, entered December 27,
2018 (Docket No. 346248).

                                  II. DEPARTURE SENTENCE

        We review departure sentences for reasonableness, Lockridge, 498 Mich at 392, and review
a lower court’s determination that a particular sentence is reasonable for an abuse of discretion.
People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327 (2017) (Steanhouse II). In determining
whether a trial court abused its discretion by unreasonably departing from the sentencing
guidelines, we consider whether the court conformed to the principle of proportionality set forth
in Milbourn, 435 Mich 630. Steanhouse II, 500 Mich at 476-477. In this regard, we must consider
whether the trial court acted within its discretion by imposing a sentence that is proportionate to
the seriousness of the particular offense and the character of the particular offender. People v
Dixon-Bey, 321 Mich App 490, 521; 909 NW2d 458 (2017). Trial courts may depart “when, in
their judgment, the recommended range under the guidelines is disproportionate, in either
direction, to the seriousness of the crime.” Milbourn, 435 Mich at 657.

         The statutory guidelines are “a useful tool” in selecting a proportionate sentence as they
“embody the principle of proportionality.” Dixon-Bey, 321 Mich App at 524. But a departure
sentence may be “more proportionate” based on certain factors, such as “(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.” Id. at 525 (citations
omitted). Factors not otherwise considered by the guidelines might include “the defendant’s
misconduct while in custody, the defendant’s expression of remorse, and the defendant’s potential
for rehabilitation.” People v Steanhouse, 313 Mich App 1, 46; 880 NW2d 297 (2015) (Steanhouse
I) (citations omitted). Based on these various factors, the court must support not only its decision
to depart, but also the extent of the departure. Milbourn, 435 Mich at 660. The “trial court must
justify the sentence imposed in order to facilitate appellate review, which includes an explanation
of why the sentence imposed is more proportionate to the offense and the offender than a different
sentence would have been . . . .” Dixon-Bey, 321 Mich App at 525 (quotation marks and citations
omitted). Ultimately, the court must articulate on the record why it is departing from the
sentencing guidelines and why the particular sentence imposed is more proportionate than the
guidelines recommended sentence.

       This Court’s “first inquiry should be whether the case involves circumstances that are not
adequately embodied within the variables used to score the guidelines.” Milbourn, 435 Mich at
659-660. Therefore, this Court “must compare the stated reasons for exceeding the guidelines
with the scored offense variables (OVs) to determine whether those reasons were already
encompassed within the guidelines.” People v Steanhouse, 322 Mich App 233, 239-240; 911
NW2d 253 (2017) (Steanhouse III), vacated on other grounds ___ Mich ___; 933 NW2d 276
(2019). However, “the key test is whether the sentence is proportionate to the seriousness of the


                                                -4-
matter, not whether it departs from or adheres to the guidelines’ recommended range.” Milbourn,
435 Mich at 661.

          Defendant was assessed 20 points for PRV 7, reflecting “2 or more subsequent or
concurrent convictions.” MCL 777.57(1)(a). Defendant was assessed 50 points for OV 3 as a
victim was killed and defendant’s offense involved driving under the influence. MCL
777.33(1)(b), (2)(c). Defendant received 15 points for OV 5 as “[s]erious psychological injury
requiring professional treatment occurred to a victim’s family.” MCL 777.35(1)(a). The court
assessed 10 points for OV 9 to reflect that “2 to 9 victims . . . were placed in danger of physical
injury or death.” MCL 777.38(1)(c). OV 13 was scored at 25 points to reflect that the sentencing
offense “was part of a pattern of felonious criminal activity involving 3 or more crimes against a
person.” MCL 777.43(1)(c). The court assessed 10 points each for OVs 17, 18, and 19. Ten
points were warranted under OV 17 as defendant “showed a wanton or reckless disregard for the
life . . . of another person.” MCL 777.47(1)(a). OV 18’s score was warranted based on
defendant’s intoxication at the time of the offense. MCL 777.48(1)(c). And a 10-point score was
required for OV 19 as defendant “interfere[d] with the administration of justice” by fleeing the
scene on foot. MCL 777.49(1)(c).

        The justifications cited by the court in imposing an upwardly departing sentence were all
taken into consideration in the scoring of these guideline variables. Defendant’s decision to drive
while intoxicated was covered by OVs 3, 17, and 18. Defendant’s reckless driving was the
foundation of his score for OV 17. The fact that the other driver was killed in the incident and her
two sons seriously and permanently injured was taken into consideration in scoring OVs 3 and 9.
The death of a victim was also an element of two of the sentencing offenses, and the serious injury
of a victim was an element of the third. Indeed, defendant’s intoxication was an element of two
of the conviction offenses as well. The psychological impact of losing a wife, mother, and
daughter, and of facing a future caring for a now physically disabled child was accounted for in
OV 5. Although the court acknowledged that it was required to impose a reasonable and
proportionate sentence, it did not explain how or why the circumstances were not adequately
encapsulated by the guidelines and their maximum scores.

        In imposing an upwardly departing sentence, the court also fixated on its characterization
of this “incident” as nonaccidental. In every drunk driving offense, the offender chooses to drink
and chooses to drive. Defendant’s intent in this case was no different than the intent of any other
drunk driving offender and does not remove the collision from the realm of “an accident.” As
described by the federal Court of Appeals for the Tenth Circuit:

               “Etymologically, an accident is simply ‘something which happens’—‘an
       event.’ That is what the word originally meant in English, and it was only
       subsequently that the senses ‘something which happens by chance’ and ‘mishap’
       developed. It comes from the Latin verb cadere ‘fall’ . . . . The addition of the
       prefix ad- ‘to’ produced accidere, literally ‘fall to,’ hence ‘happen to.’ Its present
       participle was used as an adjective in the Latin phrase rs accidns, ‘thing happening,’
       and accidns soon took on the role of a noun on its own, passing (in its stem form
       accident-) into Old French and thence into English.” [Cassara v DAC Servs, Inc,
       276 F3d 1210, 1221 n 13 (CA 10, 2002), quoting Ayto, Dictionary of Word Origins
       4 (1990).

                                                -5-
The court further described, “an accident is ‘[a] happening that is not expected, foreseen, or
intended,’ or ‘an unpleasant and unintended happening, sometimes resulting from negligence, that
results in injury, loss damage, etc.’ ” Cassara, 276 F3d at 1221, quoting Webster’s New World
College Dictionary 8 (4th ed 1999). Indeed, in the context of no-fault insurance policies that fail
to define the term, the Michigan Supreme Court has described, “an insured need not act
unintentionally in order for the act to constitute an accident and therefore an occurrence.” Allstate
Ins Co v McCarn, 466 Mich 277, 282; 645 NW2d 20 (2002) (quotation marks and citations
omitted). Even though defendant made certain choices that led to the outcome, the outcome was
nevertheless an accident.

       Ultimately, the devastating results of defendant’s actions have no bearing on his intent.
The death or serious injury of a victim was already taken into account by the Legislature’s
gradation of offenses when enacting the criminal statutes. MCL 257.617 criminalizes leaving the
scene of an accident, with increased penalties under subsection (2) for cases involving death or
serious injury and under subsection (3) when the defendant is at fault and caused the death or
serious injury of another involved individual. MCL 257.625, criminalizing driving under the
influence, also reflects the Legislature’s consideration of the varying levels of seriousness of the
offense. Defendant was already liable for the most serious penalty under the statute as his drunken
operation of a motor vehicle led to the death of another. MCL 257.625(4)(a). Accordingly,
defendant’s “decision” to drink and drive was not a proper consideration in departing upward
without further explanation.

        Defendant complains that the court did not take into account the mitigating factors
presented at sentencing. The court acknowledged that defendant had no history of driving while
intoxicated and although defendant had a handful of misdemeanors on his record, the latest was in
2003. The court cited the 40-plus letters describing defendant’s community, church, and family
life. Defendant expressed remorse for his conduct as well. Given the plethora of mitigating factors
in this case, the court’s imposition of the maximum possible sentence leaves no room for the
principle of proportionality to operate against more serious, repeat offenders. See, e.g., People v
Horn, 279 Mich App 31, 44-45 (finding that “repeated offenses and failures at rehabilitation” may
“constitute an acceptable justification for an upward departure”); People v Solmonson, 261 Mich
App 657, 669; 683 NW2d 761 (2004).

        Further, rather than explaining the inadequacy of the sentencing guidelines and why the
sentences imposed were more reasonable and proportionate as compared to the guidelines, the trial
court noted that the greatest minimum sentence it could impose was two-thirds of the statutory
maximum. As the statutory maximum for his two more serious offenses was 15 years, the court
imposed 10-year minimum sentences for these offenses. It is possible that these sentences were
more reasonable and proportional; however, absent an adequate explanation of why the guidelines
did not take adequate consideration of the factors cited by the court (and tainted by the court’s
improper colloquy regarding defendant’s intent), we cannot decide that question. We must remand
to allow for a fully explained, unbiased sentencing.

                                      III. REASSIGNMENT

       Moreover, we must remand for further sentencing proceedings before a different trial court
judge. A large portion of the trial court’s explanation for its sentencing decision was based on the

                                                -6-
court’s conclusion that this case did not involve an automobile “accident.” The court repeatedly
asserted that defendant made deliberate choices on the day in question and therefore did not
“accidentally” collide with the victims’ car or “accidentally” kill the driver and seriously injure
her children.

       When determining whether remand to a different judge is required, we examine the
       following factors:

               (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 Walker, 504 Mich 267, 285-286; 934 NW2d 727 (2019),
               quoting People v Hill, 221 Mich App 391, 398; 561 NW2d 862
               (1997) (quotation marks and citations omitted).]

        The trial judge expressed deep-seated personal opinions about defendant and we do not
reasonably expect that the judge could easily put those views out of mind at resentencing. Even if
the judge could view the case afresh with a clear mind, reassignment would be required to preserve
the appearance of justice and impartiality on the part of the bench.

       We affirm defendant’s convictions, vacate defendant’s sentences, and remand for further
sentencing proceedings consistent with this opinion. We do not retain jurisdiction.




                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Michael J. Kelly




                                                -7-
