                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  February 28, 2017
              Plaintiff-Appellee,

v                                                                 No. 329869
                                                                  Genesee Circuit Court
DOUGLAS PAUL GUFFEY,                                              LC No. 12-031509-FC

              Defendant-Appellant.


Before: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

       In 2013, a jury convicted defendant of three counts of first-degree criminal sexual
conduct, MCL 750.520b(1)(b)(iii); two counts of second-degree CSC, MCL 750.520c(1)(b)(iii);
and two counts of fourth-degree CSC, MCL 750.520e(1)(b). The trial court sentenced defendant
to concurrent prison terms of 192 to 360 months for each first-degree CSC conviction, 60 to 180
months for each second-degree CSC conviction, and 361 days for each fourth-degree CSC
conviction. In a prior appeal, this Court affirmed defendant’s convictions, but vacated his
sentences because of a scoring error and remanded for resentencing. People v Guffey,
unpublished opinion per curiam of the Court of Appeals, issued January 15, 2015 (Docket No.
317902), slip op at 5. On remand, the trial court resentenced defendant to concurrent prison
terms of 156 to 360 months for each first-degree CSC conviction, 60 to 180 months for each
second-degree CSC conviction, and 361 days for each fourth-degree CSC conviction. Defendant
again appeals as of right. We affirm defendant’s convictions, but remand for further sentencing
proceedings consistent with People v Steanhouse, 313 Mich App 1; 880 NW2d 297 (2015), lv
gtd 499 Mich 934 (2016).

       In his sole issue on appeal, defendant challenges the reasonableness of the trial court’s
sentences imposed for his convictions of first-degree criminal sexual conduct. The sentences
represent departures from the applicable sentencing guidelines range of 81 to 135 months. MCL
777.62. As plaintiff concedes, and we agree, remand is required for reconsideration of
defendant’s departure sentences in accordance with the “reasonableness” standard adopted in
Steanhouse, which was decided after defendant was resentenced.

      Defendant was originally sentenced before significant changes to Michigan’s sentencing
scheme were effectuated by our Supreme Court’s decision in People v Lockridge, 498 Mich 358;
870 NW2d 502 (2015). In Lockridge, our Supreme Court struck down the requirement in MCL

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769.34(3) under which a trial court was permitted to depart from the sentencing guidelines range
only for “substantial and compelling” reasons. Id. Although the Supreme Court held that “[a]
sentence that departs from the applicable guidelines range will be reviewed by an appellate court
for reasonableness,” id. at 392, it did not set forth a standard for determining reasonableness. In
Steanhouse, this Court adopted the “principle of proportionality” from People v Milbourn, 435
Mich 630; 461 NW2d 1 (1990), as the appropriate standard for determining the reasonableness
of a departure sentence under Lockridge, “hold[ing] that a sentence that fulfills the principle of
proportionality under Milbourn and its progeny constitutes a reasonable sentence under
Lockridge.” Steanhouse, 313 Mich App at 47-48. This Court further held that in cases in which
the trial court was unaware of and not bound by this reasonableness standard at the time of
sentencing, the case should be remanded, following the Crosby1 remand procedure adopted in
Lockridge. Specifically, this Court stated:

                Given our conclusion that the principle of proportionality established
       under Milbourn, and its progeny, is now the appropriate standard by which a
       defendant’s sentence should be reviewed, we find that the procedure articulated in
       Lockridge, which is modeled on the procedure adopted in United States v Crosby .
       . . , should apply here. As recently stated by this Court in People v Stokes, 312
       Mich App 181, 200-201, 877 NW2d 752 (2015), [appeal held in abeyance ___
       Mich ___; 878 NW2d 886 (2016),] “the purpose of a Crosby remand is to
       determine what effect Lockridge would have on the defendant’s sentence so that it
       may be determined whether any prejudice resulted from the error.” 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, 313 Mich App at 48 (citations omitted).]

See also People v Heller, ___ Mich App___; ___ NW2d ___ (2016) (Docket No. 326821); slip
op at 2 and, People v Stevens, ___ Mich App___; ___ NW2d ___ (2016) (Docket No. 328097);
slip op at 3 (holding that Steanhouse remains binding precedent and that remand was required
where “[t]he court did not specifically consider, as required by Steanhouse’s readoption of the
Milbourn standard, whether the sentence imposed was ‘proportionate to the seriousness of the
circumstances of the offense and the offender’ ”), quoting Milbourn, 435 Mich at 636.

       Because the trial court imposed its departure sentences without having the opportunity to
adhere to the standard of reasonableness rooted in the Milbourn principle of proportionality, we
remand this case to the trial court, which shall implement the Crosby remand procedure as




1
 United States v Crosby, 397 F3d 103 (CA 2, 2005), cert den 549 US 915; 127 S Ct 260; 166 L
Ed 2d 202 (2006).


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articulated in Lockridge, 498 Mich at 397-399, and reconsider defendant’s sentences in light of
Milbourn.2

        Remanded for further proceedings consistent with this opinion.        We do not retain
jurisdiction.



                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Deborah A. Servitto
                                                            /s/ Douglas B. Shapiro




2
  We reject defendant’s related request that this case be assigned to a different judge on remand.
Defendant claims that the trial court’s comment that “I dropped it down a little bit because the
Court of Appeals seemed disturbed” suggests that the judge could not reasonably be expected to
set aside his previously expressed views about the necessity of a sentencing departure.
Defendant relies on People v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986), which sets
forth the following three-part test for determining whether a case should be reassigned when it is
remanded for further proceedings:

       (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. [Citation omitted.]

Remand is required in this case for reconsideration under newly established legal standards, not
because of any previously expressed views found to be improper or erroneous. Further, the trial
court’s statements at sentencing do not reveal any cause for concern that its sentencing decision
was based on inappropriate considerations. Moreover, for disqualification to be warranted under
MCR 2.003(C)(1)(a), the trial judge must be shown to be personally and actually biased or
prejudiced for or against a party. Cain v Mich Dep’t of Corrections, 451 Mich 470, 495-496;
548 NW2d 210 (1996). The trial court’s comment, as quoted above, does not demonstrate that it
was actually and personally biased against defendant, and there is no indication that the sentence
imposed was the product of any such bias or prejudice.


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