                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED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

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

               Defendant-Appellant.


                                          ON REMAND

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

PER CURIAM.

       This case returns to us on remand from the Supreme Court. The issue presented is the
propriety of defendant Robert Schwander’s departure sentence under People v Lockridge, 498
Mich 358; 870 NW2d 502 (2015), and People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
We vacate the sentence and remand for resentencing.

                                                 I

       A jury convicted Schwander of second-degree murder. Grand Traverse Circuit Court
Judge Thomas Power sentenced Schwander to a 40 to 70 year term of imprisonment. This
sentence substantially exceeded the sentencing guidelines’ minimum sentence range of 162 to
270 months (13½ to 22½ years).

        Schwander’s first appeal challenged the scoring of six offense variables. He further
contended that the trial court abused its discretion by imposing a disproportionate sentence and
by failing to articulate substantial and compelling reasons justifying the departure and its extent.
A different panel of this Court upheld the guidelines scores but found inappropriate several of
the trial court’s stated reasons for its departure from the guidelines. People v Schwander,
unpublished per curiam opinion of the Court of Appeals, issued January 31, 2013 (Docket No.
307921) (Schwander I). Two reasons for a departure sentence survived scrutiny: Schwander
failed to call for medical help after stabbing and mortally wounding the victim, and he betrayed
the trust of the victim’s family, which had taken him in after his parents asked him to leave their
home. But because the trial court failed to justify a departure of 17½ years, nearly double the
upper guideline range, the panel retained jurisdiction and remanded for resentencing.


                                                -1-
        On remand, Judge Power declined to offer any additional reasons for the departure and
instead 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.’ ” People v Schwander, unpublished per curiam opinion of the Court of
Appeals, issued July 21, 2015 (Docket No. 320768) (Schwander II), unpub op at 2. Two
members of the previous panel were not assuaged. They vacated Schwander’s sentence and
remanded for resentencing before a different judge.

        Judge Philip Rodgers reinstated Judge Power’s original departure sentence of 40 to 70
years’ imprisonment. A majority of the present panel concluded that Judge Rodgers “failed to
articulate legally cognizable grounds justifying the extent of the substantial departure
sentence . . . imposed,” and again remanded for resentencing. Id. at 1. And “[t]o preserve the
appearance of fairness” we ordered that a different judge determine Schwander’s sentence. Id.
The panel rejected Schwander’s other arguments, specifically that: (1) Judge Rodgers should
have recused himself, (2) Michigan’s legislative sentencing scheme violated the Sixth
Amendment (we decided this issue before the Supreme Court released its opinion in Lockridge),
and (3) the previous panel improperly adjudicated his offense variable scoring challenges. Id. at
5-7.

       The prosecutor sought leave to appeal in the Supreme Court, which placed the appeal in
abeyance pending its decision “in the cases of People v Steanhouse (Docket No. 152849) and
People v Masroor (Docket Nos. 152946-8) . . . .” People v Schwander, ___ Mich ___; 879
NW2d 251 (2016). The Supreme Court subsequently entered an order stating:

       On order of the Court, . . . the application is again considered and, pursuant to
       MCR 7.305(H)(1) and MCR 7.316(A)(7), in lieu of granting leave to appeal, we
       vacate the judgment of the Court of Appeals and we remand this case to the Court
       of Appeals for reconsideration in light of [People v Steanhouse, 500 Mich 453;
       902 NW2d 327 (2017) (Steanhouse II),] and People v Lockridge, 498 Mich 358
       (2015). [People v Schwander, 501 Mich 918; 903 NW2d 190.]

On reconsideration, we find that Judge Rodgers abused his discretion by imposing a departure
sentence unreasonable and disproportionate in extent, and again remand for resentencing.

                                                II

        We first consider the role of People v Lockridge in our analysis of whether resentencing
is required.

        Schwander raised a Sixth Amendment challenge to his departure sentence in his second
appeal. When we issued our decision, we were bound by this Court’s opinion in People v
Herron, 303 Mich App 392, 404; 845 NW2d 533 (2013), which held that “the exercise of
judicial discretion guided by the sentencing guidelines scored through judicial fact-finding does
not violate due process or the Sixth Amendment right to a jury trial.” The Supreme Court
reached the opposite conclusion in Lockridge, proclaiming that Michigan’s sentencing guidelines
scheme violated the Sixth Amendment of the United States Constitution because it required



                                               -2-
judicial fact-finding beyond any facts admitted by a defendant or found by the jury. Lockridge,
498 Mich at 388-389.

        To remedy that violation, the Supreme Court deemed the guidelines merely advisory
rather than mandatory. Id. at 391. Lockridge instructed that sentences potentially tainted by
judicial fact-finding are subject to reconsideration under the remand procedure described in
United States v Crosby, 397 F3d 103 (CA 2, 2005). But the Supreme Court exempted departure
sentences from such remands “because a defendant who had received an upward departure could
not show prejudice resulting from the constraint on the trial court’s sentencing discretion.”
Steanhouse II, 500 Mich at 475. In Steanhouse II, the Supreme Court directed that when
evaluating a departure sentence this Court must “engage[] in reasonableness review for an abuse
of discretion informed by the ‘principle of proportionality’ standard” regardless of whether the
Lockridge error was preserved (as here) or unpreserved. Id. at 476, see also id. at 475 n 16.

        Guided by Lockridge, we find meritorious Schwander’s Sixth Amendment argument to
the extent that it advances the general proposition that the guidelines system under which he was
sentenced was constitutionally flawed. Because Judges Power and Rodgers imposed departure
sentences, Schwander cannot show that he was prejudiced by any Lockridge errors in the scoring
of his guidelines. Lockridge, 498 Mich at 394. We find Lockridge otherwise unhelpful in
sorting out the propriety of defendant’s sentence, and turn to a reasonableness review.

                                                II

       As directed by the Supreme Court, we consider whether Schwander’s departure sentence
was reasonable under the proportionality standard articulated in Milbourn, 435 Mich at 636,
applying an abuse of discretion standard of review.

        Milbourn requires that a sentencing court exercise its discretion “according to the same
principle of proportionality that guides the Legislature in its allocation of punishment over the
full spectrum of criminal behavior.” Id. at 651. A judge accomplishes this task by fashioning a
sentence that takes into account “the nature of the offense and the background of the offender.”
Id. The sentencing guidelines provide the starting point for a proportionality analysis and an
overall frame of reference for reasonableness review.

        Milbourn emphasized that the Legislature’s purpose in creating guidelines sentencing
ranges “was to allow the principle of proportionality to be put into practice.” Id. at 651-652. In
promulgating the guidelines the Legislature “clearly expressed its value judgments concerning
the relative seriousness and severity of individual criminal offenses.” Id. at 635. The guidelines
also take in to account the character of the offender by requiring that “persons with a history of
criminal behavior [] receive harsher sentences” than “first-time offenders” who violate the same
criminal statute. Id. Although sentencing is an inherently subjective process, the principle of
proportionality would be violated by “the imposition of the maximum possible sentence in the
face of compelling mitigating circumstances. . . .” Id. at 653.

      In Milbourn, 435 Mich at 659, the Court directed that “departures from the guidelines,
unsupported by reasons not adequately reflected in the guidelines variables, should . . . alert the



                                                -3-
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.” 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. [Id. at 659-660 (emphasis added).]

The Supreme Court reemphasized in Lockridge and Steanhouse II that the guidelines remain
“highly relevant” in a court’s sentencing calculus. See Lockridge, 498 Mich at 391; Steanhouse
II, 400 Mich at 475. The guidelines also play a critical role in our reasonableness review.

       “[D]eparture sentences are appropriate,” the Milbourn Court observed, “where the
guidelines do not adequately account for important factors legitimately considered at
sentencing.” Milbourn, 435 Mich at 657. For example, a departure might be warranted in the
case of a “one hundred-time repeat offender, since the guidelines do not take such extensive
criminal records into account.” Id. Similarly, 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. Id. at 660.

       A departure’s extent is also subject to reasonableness review.        The Supreme Court
observed in Milbourn:

       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. See People v McKinley, 168 Mich App 496, 512;
       425 NW2d 460 (1988) (“We do not dispute that a prison sentence—even a
       lengthy one—is in order. We conclude, however, that a fifteen-year minimum
       sentence for the events that occurred here is disproportionate to the specific acts
       committed and the danger involved. Too frequently reasons are given for a
       sentence that apply equally to a lesser or greater sentence unless an explanation
       is offered on the record for the specific sentence given. Such was the case here.”)
       (Emphasis added.) [Milbourn, 435 Mich at 660.]

This means that when imposing a departure sentence, a court must justify why the sentence
imposed is more proportionate than a lesser sentence would have been. People v Dixon Bey, 321
Mich App 490, 525; ___ NW2d ___ (2017). The Supreme Court highlighted this requirement in
People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008): “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.”

       Guided by these principles, we begin by analyzing the reasons given by Judge Rodgers
for imposing a departure sentence.

                                               -4-
       Judge Rodgers posited that the victim’s life could have been saved had Schwander sought
medical attention for her and that Schwander had betrayed the trust of the victim’s family. In
Schwander II, unpub op at 8, we agreed that both of these judge-found facts could support a
departure. The sentencing guidelines do not account for these circumstances, and we continue to
believe that they supply appropriate grounds for a departure.1 Judge Rodgers also identified
Schwander’s “lack of remorse” as an appropriate departure consideration. We approved this
reasoning in Schwander II, unpub op at 8, and reiterate that approval. Similarly, Schwander’s
“complete and utter disrespect” for the body of his victim is not accounted for in the guidelines
and could serve as a departure ground.

        Judge Rodgers additionally posited that a departure was warranted because after the
victim disappeared, a 12-day search ensued that “generated reasonable community fear for the
safety of other children.” We rejected this ground for departure in Schwander II, unpub op at 9,
because it was not “objective” under the standard that applied at the time we decided the case.
See People v Babcock, 469 Mich 247, 270; 666 NW2d 231 (2003) (“[I]f a reason is not objective
and verifiable, it cannot constitute a substantial and compelling reason.”). “Community fear” is
an inappropriate ground for departure under the Milbourn framework as well.

        In Milbourn, 435 Mich at 649, the Court explained that its very purpose was to create a
rule that would be “less subjective than the old rule,” denominated the “ ‘shock the conscience’
standard . . . .” The Supreme Court sought to replace an individual judge’s subjective and
possibly idiosyncratic sentencing views with more definite principles:

              While a measure of subjectivity in judicial decisions is unavoidable due to
       the differing personal backgrounds, experiences, and viewpoints of different
       members of the bench, a standard which is itself “one of complete subjectivity”
       has no more place on the appellate bench than in the trial court. A rule which
       contains no directives to the judges who must apply it—other than to encourage



1
 We remain unconvinced, however, that Schwander’s failure to summon aid for his dying victim
adds much relevant information to the circumstances of the offense or the character of the
offender. A killer’s failure to summon aid for a victim is the norm, not the exception. The New
York Court of Appeals said it this way:

               [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 (2005).]

That Schwander did nothing to save the victim’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. We leave it to the next sentencing judge to
determine the role of this fact in a proportionality analysis.


                                               -5-
       the rendering of decisions in accordance with personal value judgments—is a
       “rule” only in the weakest sense. [Id. at 645.]

Proportionality analysis grounded in the guidelines protects against “unjustified sentence
disparity.” Id. at 649.

       Because the elimination of sentence disparity serves as an important sentencing goal, a
judge should endeavor to “shield the process from passing sentence from the anger, fear, or
prejudices of the community.” Schwander II, unpub op at 9. We remain convinced that
community reaction to a crime should not factor into proportionality analysis and find our
previously expressed sentiment consistent with Milbourn:

       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. [Id.]

        Nor have we changed our mind about Judge Rodgers’s invocation of the “Department of
Corrections’ recommendation of an upward departure as a reason for his decision.” Id. at 9 n 5.
The trial court referred to this as a factor “of more modest importance . . . .” We view it as
entirely irrelevant. A corrections officer’s subjective view of an appropriate sentence is no more
important or persuasive than that of a prosecutor, a defense attorney, or a juror. The
responsibility for imposing a proportionate sentence rests solely with the trial court.

       While Judge Rodgers identified several appropriate grounds for a departure, he failed to
adequately explain why those grounds defined a sentence that was more proportionate to the
offense and the offender than a guidelines sentence would have been.

        Judge Rodgers instead relied on two alternate approaches to justify the extent of the
departure. He first examined Schwander’s background, adding points to Schwander’s prior
record variable (PRV) score, which was zero, to come to a new cell within the second-degree
murder grid found in MCL 777.61. Although Judge Rodgers referenced several minor acts of
misconduct that did not result in criminal charges,2 he ultimately relied on three uncharged acts
of third-degree criminal sexual conduct (CSC-3) arising from Schwander’s relationship with his
15-year-old girlfriend to hypothetically “assess” 75 PRV points. Had those points been assessed,


2
  As we explained in our previous opinion, Judge Rodgers cited a purported threat to a
corrections officer made after Schwander was taken into custody, his “escalating negative
behavior [at] school[,]” and a number of alleged misdemeanors and low-severity felonies,
including vandalism, the theft of electricity, and providing marijuana to a minor. Schwander II,
unpub op at 3, 10-11. Judge Rodgers relied only on the uncharged acts of CSC-3, however,
when addressing defendant’s background. Unlike the acts of CSC-3, Judge Rodgers did not
explain how any of the other acts justified the extent of the departure.


                                               -6-
defendant’s PRV level would have gone from the least serious, Level A, to the most serious,
Level F. MCL 777.61. Envisioning defendant as a defendant within PRV level F, Judge
Rodgers calculated a recommended sentencing range of 365 to 600 months. He then explained
that defendant’s OV score was 135, or 35% past the minimum number of points required to place
him in the highest OV level under the applicable sentencing grid. See MCL 777.61. Judge
Rodgers used this percentage to make an “analogous . . . mathematical[]” argument that
defendant’s minimum sentence should be 493 months, which is 35% more than 365 months.3

       We rejected this rationale in our prior opinion and repeat our analysis here, as it
corresponds to the Milbourn framework:

               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 have not 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. [Schwander II, unpub op at 10.]

       While MCL 769.34(3)(b) may no longer apply, it remains inappropriate to justify a
departure on reasons adequately accounted for by the sentencing guidelines. Dixon-Bey, 321


3
  This mathematical exercise is inconsistent with the logic of the grid. The second-degree
murder grid found in MCL 777.61 divides a defendant’s OV level into three categories: Level I
(0-49 points), Level II (50-99 points), and Level III (100 or more points). In other words, each
OV Level represents an increase of 50 points. Thus, if a fourth level were to be added to this
grid, Level III would cover scores of 100 to 149 points, and the next level would apply to OV
scores of 150 or more points. But even if our Legislature had created a fourth OV range,
Schwander’s OV score of 135 points would still place him in the same range of 365 to 600
months.


                                               -7-
Mich App at 525. Thus, we reiterate that Judge Rodgers inappropriately relied on factors already
accounted for in the sentencing guidelines to justify the extent of the departure without
explaining why the scoring of OV 13 was inadequate.

        Further, Judge Rodgers attempted to justify an upward departure of 17½ years by
reference to a consensual sexual relationship rendered illegal solely by the age of the female
participant, who was 15 instead of the required 16 years of age. MCL 750.520d(1)(a). Judge
Rodgers failed to explain why this misconduct warranted an extreme departure considering that
prosecutions arising from similar relationships generally result in probation, not 17½ additional
years in prison.4 Nor was the relationship indicative of an irredeemably violent character. The
relationship afforded Judge Rodgers with “no basis to conclude that defendant was a
‘recidivist . . . criminal’ that deserved a ‘greater . . . punishment’ than that contemplated by the
guidelines.” Dixon-Bey, 321 Mich App at 525, quoting Smith, 482 Mich at 305.

       Judge Rodgers based his second attempt to justify the extent of the departure on his
conclusion that defendant had actually committed first-degree murder. Schwander II, unpub op
at 10. This was exactly contrary to the jury’s verdict. While the prosecutor argued that
Schwander planned to murder the victim, the jury rejected this position by returning a second-
degree murder verdict. Id. at 2. We previously expressed reservations regarding whether the
Sixth Amendment permits a departure premised on acquitted conduct, but ultimately, “reserve[d]
for another day the question whether a Michigan judge may nullify a jury’s verdict to enhance a
defendant’s sentence.” Id. at 10-11. We instead explained that whether defendant “premeditated
or deliberated Carly’s death [was] not objectively verifiable, and therefore cannot justify a
departure.” Id. at 11. This reasoning is no longer viable.

        We instead adopt the analysis proposed in Dixon-Bey, another case in which a sentencing
court rejected a jury’s conclusion that a defendant committed second-degree murder, departing
based on a personal belief that the crime was actually first-degree murder.

        The Dixon-Bey Court observed that offense variable 6 addresses a defendant’s intent to
kill or injure another individual, and precludes scoring 50 points, the highest possible number,


4
 Even the maximum term of imprisonment permitted by statute is less than the 17½ years by
which Judge Rodgers departed from the sentencing guidelines in fashioning defendant’s
minimum sentence in this case. See MCL 750.520d(2) (“Criminal sexual conduct in the third
degree is a felony punishable by imprisonment for not more than 15 years.”).
        Further, to comply with the two-thirds rule of People v Tanner, 387 Mich 683; 199
NW2d 202 (1972), and MCL 769.34(2)(b), a minimum sentence for CSC-3 (assuming no
habitual offender enhancements apply, see MCL 769.10 through MCL 769.12) cannot exceed 10
years’ imprisonment. And it would hardly seem that if defendant had actually been convicted of
CSC-3, a sentence of 10 to 15 years’ imprisonment would have been permissible under
Milbourn. See Milbourn, 435 Mich at 654 (“Where a given case does not present a combination
of circumstances placing the offender in either the most serious . . . class with respect to the
particular crime, then the trial court is not justified in imposing the maximum . . . penalty . . . .”).


                                                  -8-
unless a jury decides that the offender premeditated the killing. 5 MCL 777.36. Given that the
guidelines address and specifically account for an offender’s intent to kill, the Court was “highly
skeptical” of the ability of a sentencing court “to sentence a defendant convicted of second-
degree murder as though the murder were premeditated.” Further, the Court noted, even if an
extra 25 points had been scored in that case, the defendant’s recommended sentencing range
would have remained unchanged. Dixon-Bey, 321 Mich App at 528.

        Judge Rodgers assessed 25 points for OV 6, rejecting Schwander’s claim that 10 points
should have been scored because the death occurred in a “combative situation,” see MCL
777.36(2)(b). Schwander I, unpub op at 2. This Court has affirmed that score. Id. Relying
entirely on the information that was presented to the jury, Judge Rodgers determined that
Schwander had premeditated the murder and sentenced him consistently with that conclusion.
As explained in Dixon-Bey, this contravened the letter and spirit of MCL 777.36(2)(a).

       In a homicide case, the plain language of OV 6 bars judicial fact-finding in calculating
the guidelines applicable to intent. By precluding judicial fact-finding concerning intent, the
Legislature signaled that a court could not rely on its disagreement with a verdict to increase a
defendant’s minimum guidelines range. In other words, OV 6 represents a legislative
determination that a jury’s verdict alone controls the guidelines’ sentence calculation.
Permitting a court to use forbidden facts to depart from the guidelines undermines clearly
expressed legislative will. 6

         For several other reasons we reject that Judge Rodgers’s finding that Schwander intended
to kill the victim could justify the substantial departure sentence imposed.

        Just as in Dixon-Bey, even were it appropriate to add 25 points to Schwander’s OV score,
his minimum sentence range would remain unchanged. Because the guidelines fully account for
this aspect of the offense and the offender, Judge Rodgers abused his discretion by relying on his
own finding of intent to justify a departure.

      Furthermore, we note that Schwander was 17 years old when he murdered the victim.
Schwander II, unpub op at 1. In Miller v Alabama, 567 US 460, 471; 132 S Ct 2455; 183 L Ed


5
 “Unless the sentencing court has information that was not presented to the jury, an offender’s
OV 6 score must be consistent with a jury verdict.” MCL 777.36(2)(a). The sentencing court
had no such additional information here or in Dixon-Bey.
6
  With regard to this offense variable, Michigan’s sentencing guidelines scheme differs from the
federal system, which permits such judicial fact-finding. See United States v Hebert, 813 F3d
551, 564 (CA 5, 2015) (“[W]e have held that courts can engage in judicial factfinding where the
defendant’s sentence ultimately falls within the statutory maximum term. Following Booker, we
noted that ‘[t]he sentencing judge is [still] entitled to find by a preponderance of the evidence all
the facts relevant to the determination of a Guideline sentencing range and all facts relevant to
the determination of a non-Guidelines sentence.’ United States v Mares, 402 F3d 511, 519 (CA
5, 2005)”.)


                                                -9-
2d 407 (2012), the United States Supreme Court held that mandatory life-without-parole
sentences for minors are unconstitutional under the Eighth Amendment, resting this conclusion
on the principle that “children are constitutionally different from adults for purposes of
sentencing.” The Supreme Court explained that children have “diminished culpability and
greater prospects for reform,” lack maturity and have not fully developed a sense of
responsibility, “leading to recklessness, impulsivity, and heedless risk-taking[,]”are vulnerable to
negative influences, and, among other factors, are less able to assess the consequences of their
actions. Id. at 471-472 (quotation marks and citations omitted). The Court ultimately found
mandatory sentences of life without parole for juveniles to violate the Eighth Amendment. Id. at
479. However, the Court left open the possibility of the imposition of a sentence of life without
parole for the “rare juvenile offender whose crime reflects irreparable corruption.” Id. at 479-
480 (quotation marks and citation omitted). But before imposing such a sentence, a trial court
must “take into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” Id. at 480.

       In response to Miller, our Legislature enacted MCL 769.25. Under this statute, if an
individual under age 18 commits first-degree murder, a prosecutor may choose to seek a life-
without-parole sentence via motion. MCL 769.25(1)(a), (2)(b), and (3). If no motion is filed, the
individual must be sentenced “to a term of imprisonment for which the maximum term shall not
be less than 60 years and the minimum term shall not be less than 25 years or more than 40
years.” MCL 769.25(4) and (9). In other words, had the jury in the present matter believed the
prosecutor’s theory and concluded that Schwander committed first-degree murder, likely he
would have received, at most, a 40-year minimum sentence under MCL 769.25(9). We find it
unreasonable and disproportionate to sentence Schwander to the same minimum term for a
conviction of second-degree murder.

        We are left with only a handful of legitimate reasons justifying Judge Rodgers’s
departure sentence, none of which were tethered to an explanation of why a minimum sentence
exceeding the guidelines maximum (22½ years) by 17½ years was imposed. While we agree
that a departure may have been warranted based on Schwander’s lack of remorse, his
relationship to the victim’s family, his failure to summon help for the victim, or his treatment of
the victim’s body after her death, Judge Rodgers failed to explain how the extent of the departure
corresponded to these facts. For this reason, we must remand for another resentencing consistent
with this opinion.

        Because Judge Rodgers has retired, we anticipate that the resentencing will be conducted
by his successor. We further anticipate that the 2011 PSIR used at Schwander’s previous
sentencings will be updated. See People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980).
New information may yield additional reasons for a departure, or may nullify or weaken the
grounds found by Judge Rodgers. Given that Schwander is now almost 25 years old, we
anticipate that the trial court will have an opportunity to assess both the positive and negative
aspects of his character, consistent with Milbourn, in addition to considering the circumstances
of the crime.




                                               -10-
       We vacate Schwander’s sentence and remand for resentencing in conformity with this
opinion. We do not retain jurisdiction.



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




                                          -11-
