                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 15, 2017
               Plaintiff-Appellee,

v                                                                   No. 332266
                                                                    Jackson Circuit Court
CHRISTOPHER AMANDO MITCHELL,                                        LC No. 15-004712-FH

               Defendant-Appellant.


Before: O’BRIEN, P.J., and HOEKSTRA and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by leave granted1 his conviction, entered as a result of a plea
agreement, of first-degree home invasion, MCL 750.110a(2) (home invasion while armed with a
dangerous weapon). The trial court sentenced defendant to 10 to 20 years’ imprisonment. We
affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Defendant and Angel Vidro broke into the victim’s home to commit larceny. After they
broke in, they discovered that the homeowner was a police officer. They then did extensive
damage to the interior of the victim’s home. According to the Victim Impact Statement, the
extent of the destruction was “difficult to fathom.” The perpetrators had “ransacked every
room . . .[,] emptied drawers, tipped over furniture, emptied storage containers, ruined legal
documents, broke personal items and most damaging; they smashed [a] 100 gallon fish tank
[causing] damage to [the] kitchen, dining room and living room floors[;] the damage had to be
treated as if it was a sewage problem due to the fish tank water contamination . . . [and] required
[] the services of a restoration company who had to immediately remove the flooring in each
room.” A 60” television was “ripped from [the] living room wall” and stolen, along with other
electronics (including a laptop, tablet, and gaming system). Also stolen were firearms with
sentimental value, as well as personal memorabilia, including “police badges . . . collected with



1
  See People v Mitchell, unpublished order of the Court of Appeals, entered May 24, 2016
(Docket No. 332266).


                                                -1-
pride from [the victim’s] previous employers.” The victim’s fish were killed, and his “dog’s
gentle behavior changed,” necessitating the purchase of an invisible fence.

       Defendant left his cellular phone at the victim’s house and returned later to retrieve it.
During sentencing, defendant took responsibility, but blamed his actions on the influence of
Xanax, an anti-anxiety medicine.

       The sentencing guidelines were calculated at 36 to 60 months. The presentence
information report (PSIR) prepared by the probation department (without the benefit of the
Victim Impact Statement) recommended that defendant receive a minimum sentence at the top of
the recommended range. At sentencing, the prosecution requested “the maximum possible
sentence under the law,” emphasizing that, in return for his plea, two additional cases involving
home invasions were dismissed, as was the felony-firearm charge initially brought in the instant
case. The prosecution stated:

       Two other cases were dismissed because we needed Mr. Mitchell’s testimony
       against the co-defendant, a felony firearm was dismissed, so he’s already been
       given considerable consideration because we wanted to bring both of these men to
       justice for their involvement in trashing Officer Pruss’s [sic - Prus] house, but
       with that being said, I’m asking the court to give the maximum possible sentence
       under the law. This went well above and beyond what was necessary to commit a
       home invasion. This got personal when they discovered that this home belonged
       to a police officer, and, unfortunately, there seems to be a war on cops right now
       and this officer did nothing to this man, his family’s done nothing to this man, and
       he was victimized above and beyond what was necessary solely because he was a
       police officer, and that’s wrong and I’m asking the court to sentence him to the
       maximum possible sentence with the Michigan Department of Corrections.

The PSIR reflects that the dismissed charges in the other cases against defendant arose out of two
other incidents that occurred subsequently to the home invasion in this case; the charges were
larceny in a building, MCL 750.360, stealing, removing, retaining, or secreting another’s
financial transaction device without consent, MCL 750.157n, and second-degree home invasion,
MCL 750.110a(3), all felonies. The PSIR further reflects that “[w]hen asked why the defendant
continued to engage in this type of behavior, he indicated that he didn’t get caught so it didn’t
seem like a big deal.”

        At sentencing, the trial court noted the extensive damage to the victim’s home and called
it “the worst home invasion I’ve ever seen in my career.” The trial court also stated:

       I’ve never seen somebody’s home so seriously desecrated as you did to this cop.
       You know, your family, your pastor, who I respect immensely, you know, I can’t
       help but wonder what they would think if somebody came and did that to their
       home and then just try and say well, I had a couple of Xanax, I had a couple of
       anti-anxiety pills. I mean, you – you weren’t under heroin or meth . . . and . . . I
       think fairly quickly on you figured out it was a cop’s house and you were gonna
       take as much time as you could to – to – to inflict maximum destruction. Even on
       things like a huge aquarium, a hundred gallon aquarium. I used to have a 50

                                               -2-
       gallon one when I was in college, I could imagine how much water, just to sit
       there and watch all the fish and everything die on the floor, probably laughing,
       yeah, we’re gonna get this cop, we’re gonna get him good, take his guns, take his
       badges, go into his private room that he’s proud of as a police officer, desecrate
       that.

The trial court then departed upward from the guidelines and sentenced defendant to a term of 10
to 20 years. This appeal followed.

                            II. REASONABLENESS OF SENTENCE

       Defendant argues that the trial court violated the principle of proportionality and imposed
an unreasonable sentence by imposing a 10 to 20 year term of imprisonment, noting that his
minimum sentence was twice the highest minimum sentence recommended by the sentencing
guidelines. We disagree that the departure was unreasonable.

       We review a trial court’s upward departure from a defendant’s calculated guidelines
range for reasonableness. People v Lockridge, 498 Mich 358, 391-392; 870 NW2d 502 (2015).
We review the reasonableness of a sentence for an abuse of the trial court’s discretion. See
People v Steanhouse, 313 Mich App 1, 44-47; 880 NW2d 297 (2015), lv gtd 499 Mich 934
(2016), quoting People v Milbourn, 435 Mich 630, 634-636; 461 NW2d 1 (1990). [People v
Walden, ___ Mich App ___, ___; ___ NW2d ___ (2017), slip op at 4.] The trial court does not
abuse its discretion when it chooses an outcome within the range of reasonable and principled
outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

        In Lockridge, our Supreme Court determined that scoring of the mandatory sentencing
guidelines by using judicial fact-finding violated a defendant’s constitutional right to a jury trial
as articulated in the United States Supreme Court decisions of Apprendi v New Jersey, 530 US
466; 120 S Ct 2348; 147 L Ed 2d 435 (2000) and Alleyne v United States, 570 US ___; 133 S Ct
2151; 186 L Ed 2d 314 (2013). In order to render our legislative sentencing guidelines
constitutional, our Supreme Court struck “down the requirement in MCL 769.34(3) that a
sentencing court that departs from the applicable guidelines range must articulate a substantial
and compelling reason for that departure.” Lockridge, 498 Mich at 364-365. The Court held
“that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is
advisory only and that sentences that depart from that threshold are to be reviewed by appellate
courts for reasonableness.” Id. at 365. The Court further noted that “to the extent that any part
of MCL 769.34 or another statute refers to use of the sentencing guidelines as mandatory or
refers to departures from the guidelines, that part or statute is also severed or struck down as
necessary.” Id. at 365 n 1. Finally, the Court concluded: “To preserve as much as possible the
legislative intent in enacting the guidelines, however, we hold that a sentencing court must
determine the applicable guidelines range and take it into account when imposing a sentence.”
Id. at 365.

        We recently discussed the analytical framework for a defendant’s claim that his sentence
is unreasonable under Lockridge:



                                                -3-
       With regard to defendant's claim that his sentence was substantively
       unreasonable, our Supreme Court in Lockridge, 498 Mich at 364-365, rendered
       the Michigan sentencing guidelines advisory. Additionally, the Court in
       Lockridge determined that trial courts are no longer required to articulate
       substantial and compelling reasons to depart from the minimum sentencing
       guidelines range; rather, the sentence must only be reasonable. Id. at 391-392.
       This Court has stated that a sentence is reasonable under Lockridge if it meets the
       principle of proportionality enumerated in Milbourn. Steanhouse, 313 Mich App
       at 22. “[T]he 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 363. Put another way, “the
       [trial] judge . . . must take into account the nature of the offense and the
       background of the offender.” Id. at 651. As our Supreme Court has stated:

               [D]epartures [from the minimum sentencing guidelines] are appropriate
               where the guidelines do not adequately account for important factors
               legitimately considered at sentencing . . . . [T]rial judges may continue to
               depart from the guidelines 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 656-657.]

       Factors that may be considered by a trial court under the proportionality standard
       include, but are not limited to:

               (1) the seriousness of the offense . . . , (2) factors that were inadequately
               considered by the guidelines . . ., and (3) factors not considered by the
               guidelines, such as the relationship between the victim and the
               aggressor . . ., the defendant's misconduct while in custody . . ., the
               defendant's expressions of remorse . . ., and the defendant's potential for
               rehabilitation. [Steanhouse, 313 Mich App at 46 (citations omitted).]

       [Walden, ___ Mich App at ___, slip op at 4-5.]

       Here, as in Walden, the trial court sentenced defendant shortly after Lockridge was
decided by our Supreme Court, and specific reference was made to Lockridge at the sentencing
hearing. Id. at 5. The court was therefore aware of the applicable reasonableness standard.

      At sentencing, the trial court focused primarily on the amount of damage that defendant
and Vidro did to the victim’s home.2 The record reflects that defendant committed this offense


2
  The trial court made repeated statements like the following: “[Y]ou’re trying to tell me you’re
high as a kite and you absolutely destroy this cop’s house”; “I mean, you guys smashed a
hundred gallon aquarium”; “you ruined flooring in three different areas of the house”; “you took
his police memorabilia, his uniforms, I mean, you destroyed things throughout the house”; “it
translates into a very different kind of home invasion”; “this is a police officer . . . [and] the irony


                                                  -4-
while he was on probation for an earlier felony conviction for bringing contraband into a prison
while employed there.3 Defendant’s probation was imposed pursuant to Holmes Youthful
Trainee Act (HYTA), MCL 762.11 et seq., which would have resulted in the earlier charge being
dismissed had he successfully completed the probation. See MCL 762.14. Due to defendant’s
plea of guilty in this case, his status as a youthful trainee under HYTA was revoked. See
MCL 762.12(1). The prosecution emphasized the consideration that defendant had been given
for his plea agreement, including the dismissal of three felony charges that could have potentially
represented decades of prison time.

       “Milbourn did not address the unique sentencing situation that arises when a defendant
pleads guilty of a lesser charge in exchange for dismissal of other or greater charges.” People v
Brzezinski, 196 Mich App 253, 256; 492 NW2d 781 (1992), citing People v Duprey, 186 Mich
App 313, 318; 463 NW2d 240 (1990). In such a case, a trial court may appropriately emphasize
the “substantial nature of the plea bargain that has been struck” in departing from the sentencing
guidelines. Id. And “a trial court’s consideration of factors not embodied in the guidelines
becomes more compelling.” Id., citing People v Williams, 191 Mich App 685, 687-688; 479
NW2d 36 (1991).

        We conclude, as in Walden, that the trial court did not abuse its discretion, that the
sentence imposed satisfied the requirement that a sentencing departure be “proportionate to the
seriousness of the circumstances of the offense and the offender,” Milbourn, 435 Mich at 636,
and that it was therefore reasonable under Lockridge. In addition to being aware of the
substantial nature of the plea bargain struck in this case, Brzezinski, 196 Mich App at 256, the
trial court noted the extensive damage to the victim’s personal property, apparently perpetuated
on a malicious whim by defendant and Vidro. Although the degree of property damage is
considered in scoring offense variable (OV 16), MCL 777.46, the trial court’s comments clearly
indicate the inadequate weight given to this factor. Indeed, OV 16 allows 10 points to be scored
for property damage (including stolen items) in excess of $20,000 or if a defendant caused

is, his [home] gets trashed worse than any that he’s ever seen in his . . . entire career”; “[Y]ou
took the time, locked his dog . . . in the basement . . . [s]o you could have more uninterrupted
time to totally trash this guy’s house.” The court also focused repeatedly on the fact that the
victim was a police officer. The court’s final summation before pronouncing sentence returned
to the theme of the severity of the destruction and the fact that it occurred to the home of a
policeman. As previously noted, after imposing a 10 to 20-year sentence, the court stated: “It’s
not burglary, it’s home invasion in the first degree and you invaded that cop’s home worse than
any I’ve ever seen in my career.”
3
  The record reflects that while employed by a private company in a correctional facility,
defendant smuggled marijuana into the facility at the request of an inmate, for compensation.
The record further reflects that defendant committed this offense shortly before entering a plea
(but after his arrest) on a marijuana possession charge. Defendant received a suspended sentence
for that possession charge as well as probation, but that probation was revoked for failing to
comply with the conditions of sentence. Shortly thereafter, and despite his poor compliance with
his previous probation, defendant was given another alternative to jail or prison time in the form
of his probation under the Holmes Youthful Trainee Act, MCL 762.11 et seq.


                                                -5-
“[w]anton and malicious damage beyond that necessary to commit the crime,” for which he was
not charged. MCL 777.46(1)(a)-(b). Here, defendant both caused more than $20,000 in damage
and did so wantonly and maliciously. The trial court also noted defendant’s conduct in returning
to retrieve his cellular phone. Defendant’s conduct in re-entering the victim’s house likely
constituted, at the least, an additional misdemeanor breaking and entering or entering without
breaking, MCL 750.115, for which defendant was not charged. Additionally, defendant’s
conduct lends serious doubt to his suggestion that he was so intoxicated by Xanax that he could
not control his behavior. And defendant had already been given special opportunities to
rehabilitate and escape the burden of a criminal record by both a jail diversion program in New
Jersey4 and HYTA, but clearly did not benefit from either program. The trial court was
permitted to consider defendant’s lack of truthfulness and poor potential for rehabilitation in
rendering its sentence. See Walden, ___ Mich App at ___, slip op at 4.

        Considering the large amount of uncharged conduct the trial court had to consider in the
instant case, we hold that the trial court did not abuse its discretion by departing from the
guidelines to the extent that it did, and that the sentence was proportionate to the offense and the
offender. See Milbourn, 435 Mich at 660, citing People v McKinley, 168 Mich App 496, 512;
425 NW2d 460 (1988).

                                       III. JUDICIAL BIAS

        Defendant also argues that he is entitled to resentencing before a different judge because
the trial court’s comments demonstrated that the court was biased against him. We disagree.
Defendant did not raise this claim in the trial court and therefore has not preserved this claim for
appellate review. People v Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2010). Review is
of unpreserved claims is for plain error affecting the defendant’s substantial rights. Id. at 597,
citing People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). To demonstrate plain
error, defendant must demonstrate that (1) error occurred, (2) the error was plain, that is, clear or
obvious, and (3) the error must have affected defendant’s substantial rights. With respect to this
third factor, defendant must demonstrate that he was prejudiced; that is, “that the error affected
the outcome of the lower court proceedings.” Carines, 460 at 763, citing United States v Olano,
507 US 725, 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

       “[T]he party who challenges a judge on the basis of bias or prejudice must overcome a
heavy presumption of judicial impartiality.” Cain v Mich Dep’t of Corrections, 451 Mich 470,
497; 548 NW2d 210 (1996). Our Supreme Court in Cain explained:

              A judge is disqualified when he cannot hear a case impartially pursuant to
       MCR 2.003(B). The court rule sets forth a list of situations that are deemed to be
       the equivalent of an inability to hear a case impartially. One such instance is




4
 The record reflects that defendant had previously pled guilty to a marijuana-related offense in
New Jersey, which charge was dismissed after satisfactory completion of the terms of sentence.


                                                -6-
       when the judge “is personally biased or prejudiced for or against a party.”
       MCR 2.003(B)(1).

               MCR 2.003(B)(1) requires a showing of actual bias. Absent actual bias or
       prejudice, a judge will not be disqualified pursuant to this section. In re
       Forfeiture of $1,159,420, 194 Mich App 134, 151; 486 NW2d 326 (1992);
       Mourad v Automobile Club Ins Ass’n, 186 Mich App 715, 731; 465 NW2d 395
       (1991); Band v Livonia Associates, 176 Mich App 95, 118; 439 NW2d 285
       (1989).

       Further, this Court has stated that

       [t]he impact of a crime on a victim is a valid sentencing consideration. . . . We do
       not believe that the judge’s consideration of the impact of the crime on the victim
       amounted to a prejudice or bias that deflected him from making a sentencing
       decision within considerations recognized in People v Coles, 417 Mich 523, 339
       NW2d 440 (1983). A review of the record does not give rise to an impression of
       actual prejudice or bias. [People v Jones, 179 Mich App 339, 342-343; 445 NW2d
       518 (1989).]

Additionally, this Court has stated:

       Sentencing is the time for comments against felonious, antisocial behavior
       recounted and unraveled before the eyes of the sentencer. At that critical stage of
       the proceeding when penalty is levied, the law vindicated, and the grievance of
       society and the victim redressed, the language of punishment need not be tepid.
       [People v Antoine, 194 Mich App 189, 191; 486 NW2d 92 (1992).]

      Defendant bases his claim of judicial bias mainly on the trial court’s statement after it
imposed his sentence:

               And, just for the Record, you had enough mental wherewithal to figure out
       when you got home that you left your cell phone and knew enough to get [it]
       back. I just wish one thing would have happened, I wish Officer Pruss [sic]
       would have had a [sic] opportunity to get home before you found that cell phone
       and been there the second time you came back. Because you know what? You
       might not be going to the Department of Corrections for 10 years, you might be
       getting buried in some cemetery, because that was a home invasion in the first
       degree and the worst – and the worst I’ve ever seen in almost 30 years.


       Without question, aspects of this statement reflect a certain level of frustration by the trial
court. However, considered in context, we conclude that this statement was not an expression of
personal bias or animus toward defendant, but rather was an attempt by the trial court to impress
on defendant, who had a history of failing to learn from his prior encounters with the legal
system, the serious nature of the consequences that his actions could have had, and of the impact
of his actions on the victim. Jones, 179 Mich App at 342. Instead of committing a simple

                                                 -7-
breaking and entering of a dwelling and stealing a few valuables, defendant and Vidro caused
considerable damage. As defendant admitted, when they identified the home as belonging to a
police officer, they made it a point to be as destructive as they could possibly be. The victim’s
statement, read by the prosecution at sentencing, states that he recognized that defendant and
Vidro had maliciously destroyed his property because of his employment as a police officer; the
victim was also concerned, because of the defendants’ alleged gang affiliations, that he or his
family might be subjected to further targeted criminal activity. The trial court’s comments thus
addressed the grievance of society and redress of the victim, and did not demonstrate actual bias.
Antoine, 194 Mich App at 191.

        We find defendant’s reliance on People v Scott, 197 Mich App 28, 31; 494 NW2d 765
(1992), a case decided four years before our Supreme Court’s decision in Cain, misplaced. In
Scott, the defendant pled guilty to one count of delivery of less than 50 grams of cocaine in
return for dismissal of another identical count, dismissal of the second offender provision of the
controlled substances act, and a recommendation that the sentence not exceed 36 months. Id. at
29-30. At sentencing, the trial court excoriated the defendant as a crack cocaine dealer and
compared the gravity of his offense to first-degree murder, rape, or armed robbery. Id. at 31.
The court also compared the defendant’s drug-dealing to Saddam Hussein’s scud missile attacks.
Id. The trial court then imposed a sentence of 15 to 40 years. Id. 30. The presentence report had
recommended a 3½-year sentence based on the defendant’s “inability to handle his substance
abuse problem and apparent willingness to continually sell cocaine.” Id. at 30. This Court
stated:

               We find that the trial court overreacted by comparing defendant's crime to
       murder, rape, and scud missile attacks. This led to a disproportionate sentence
       and a violation of Milbourn, supra. It is the Legislature, not the trial court, that
       decides whether a defendant who has been convicted of one crime should be
       sentenced as if he had committed another and as if he had been in violation of
       international legal principles regarding the conduct of war. Moreover, we note
       that the trial court's statement that defendant was involved in the delivery of crack
       cocaine was not supported by the record, and was denied by defendant during the
       plea and sentencing proceedings. For these reasons, defendant must be
       resentenced. [Id. at 31.]


Additionally, because of the trial court’s strong language, this Court directed that the
resentencing be before a different judge. Id. at 33.

        Unlike Scott, the trial court’s comments in this case did not compare defendant’s crimes
to other, more serious offenses; instead the court properly recognized that this was the most
serious example of a home invasion it had ever seen. Furthermore, Scott was decided four years
before our Supreme Court’s decision in Cain and therefore failed to take into account that
decision’s clear statements that judicial impartiality is strongly presumed and that actual bias




                                               -8-
must be shown. Cain, 451 Mich at 495, 497. Defendant has not overcome the strong
presumption of judicial impartiality or made a showing of actual bias that would require
resentencing before a different judge. Id.

      Affirmed.



                                                      /s/ Colleen A. O'Brien
                                                      /s/ Joel P. Hoekstra
                                                      /s/ Mark T. Boonstra




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