People of Michigan v. Robert Jensen Schwander ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 22, 2018
Plaintiff-Appellant,
v No. 320768
Grand Traverse Circuit Court
ROBERT JENSEN SCHWANDER, LC No. 2011-011239-FC
Defendant-Appellee.
ON REMAND
Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ.
K. F. KELLY J. (dissenting)
I respectfully dissent. Under the newly-stated framework for evaluating sentences, I
would affirm defendant’s sentence.
In People v Schwander, unpublished per curiam opinion of the Court of Appeals, issued
July 21, 2015 (Docket No. 320768 (“Schwander II”), our Court quoted at length Judge Rodgers’
justifications for sentencing defendant as he did:
Judge Rodgers commenced defendant’s resentencing by outlining the
“substantial, compelling and objective reasons” for a departure sentence. Echoing
Judge Power, Judge Rodgers found “the depravity and the stabbing death of this
young woman, which took her 30 to 60 minutes to die,” a reason for departure.
“First aid was not provided,” Judge Rodgers continued, which “probably would
have saved her life.” Additionally, defendant “gross[ly]” abused the trust of the
victim’s family, and showed no remorse. “Fourth,” Judge Rodgers continued,
“there was a 12 day search for the victim. And, the publicity generated
reasonable community fear for the safety of other children not knowing how or
why Ms. Lewis had disappeared.” Next, “after the death the body was treated
with what can only be described as complete and utter disrespect.” Lastly, Judge
Rodgers observed, the Department of Corrections recommended an upward
departure.
Judge Rodgers then turned to the “principles of proportionality” which
supported the extent of the departure sentence he intended to impose. Addressing
defendant, he began “by . . . determining who you are:”
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And, I look at your prior record variable score and I see that that’s
zero, that can mean a variety of things. That could mean you were
one free of prior criminal behavior, an innocent man caught in
circumstances that were overwhelming, who out of anger and spite
murdered another human being, that however is not you.
I looked carefully at this record. What this record reflects,
among other things, is prior multiple acts of criminal sexual
conduct in the third degree, which were scored in the offense
variables as a continuing pattern of criminal behavior. They
weren’t scored in the prior record variables because there were no
convictions, but they are recorded in the diary and in the testimony
of your girlfriend, Ms. Tezak. Page 1 of your original pre-sentence
report reflects that you made a threat to a corrections officer and
his family while confined in the county jail awaiting trial. And,
your pre-sentence report also indicates due to escalating negative
behavior in the school your own high school principal was afraid
of you. So you were, then, at the time this occurred a person who
committed a series of high severity felonies and whom others
legitimately feared. I emphasize this only because the principles of
proportionality that derive from [People v] Milbourn[, 435 Mich.
630; 461 NW2d 1 (1990)] recognize that more serious sentences
should be for people who not only commit the most serious crimes,
but for whom the community should have a reasonable fear.
Not as important were the concurrent offenses of larceny in
a building from the Lewis home, trespass, vandalism and the theft
of electricity from a structure you did not own. And, the prior
provision on at least one occasion of providing marijuana to a
minor.
Judge Rodgers moved on to the manner of Lewis’s death. Again speaking
to defendant, Judge Rodgers queried:
So which is more depraved, stabbing a victim multiple times and
watching her slowly bleed to death or choking her to the point
where she became unconscious and could no longer fight or resist,
continuing to do so for two additional minutes then dropping the
body, going for a walk and returning finally to allegedly doing
some chest compressions. That’s the trial record. In either case
the level of depravity is stunning.
Next, Judge Rodgers determined that because defendant had actually
committed first-degree murder, a sentence substantially above the guidelines was
proportionate to the crime:
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You were initially charged with murder in the first degree, the
premeditated and deliberate killing of another. What does that
actually mean? People like me, juries, have been directed to the
Michigan Supreme Court opinion in People versus Vail, it’s an old
opinion, a 1975 opinion . . . , 393 Michigan 460. And, I would
direct you to pages 468 and 469. Premeditated is to think about
beforehand. To deliberate is simply to measure and evaluate facts.
But, the important part of the Vail decision reads as follows, while
the minimum time necessary to exercise this thought process is
incapable of exact determination the interval between thought and
ultimate action should be long enough to afford a reasonable man
time to subject the nature of his response to a second look.
Judge Rodgers then described the process of strangulation that defendant
claimed had occurred. That process, Judge Rodgers indicated, would have taken
more than two minutes—”a long enough interval to give a reasonable man time to
subject the nature of his response to a second look.” Judge Rodgers continued:
What you actually did was stab her to death and sit there a
half an hour and watch her bleeding, the lung punctured, the blood
and foam coming out of her mouth. Clearly, there was adequate
time to give a reasonable man the interval to reflect upon his
actions.
So in my view by a preponderance of the evidence, which
is the standard we use for purposes of sentencing, this was first
degree murder and a departure because of the far more serious
crime of 600 to 900 months, or 50 to 75 years, is not only legally
justifiable it’s consistent with who you are, what you did and your
projected life expectancy. I will be candid with you, I hesitate to
impose that sentence, or even 493 to 840 month sentence which the
guideline analogy would mathematically support, because I believe
it would be honestly found by the Court of Appeals to be
retributive.
So, I am simply going to reinstate your original sentence,
480 to 840 months, or 40 to 70 years, and trust the magnitude of
the departure has now been fully explained . . . . [Schwander II,
unpub op at 2-5 (emphasis added).]
As this Court recently explained in People v Dixon-Bey, 321 Mich. App. 490; ___ NW2d
___, lv pending, slip op at 16:
“A sentence that departs from the applicable guidelines range will be reviewed by
an appellate court for reasonableness.” People v Lockridge, 498 Mich. 358, 392;
870 NW2d 502 (2015). “[T]he standard of review to be applied by appellate
courts reviewing a sentence for reasonableness on appeal is abuse of discretion.”
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People v Steanhouse, 500 Mich. 453, 471; 902 NW2d 327 (2017) [Steanhouse II].
In Steanhouse, the Michigan Supreme Court clarified that “the relevant question
for appellate courts reviewing a sentence for reasonableness” is “whether the trial
court abused its discretion by violating the principle of proportionality....” Id. The
principle of proportionality is one in which
“a judge helps to fulfill the overall legislative scheme of criminal
punishment by taking care to assure that the sentences imposed
across the discretionary range are proportionate to the seriousness
of the matters that come before the court for sentencing. In
making this assessment, the judge, of course, must take into
account the nature of the offense and the background of the
offender.” [Id. at 472], quoting Milbourn, 435 Mich [at 651].
Under this principle, “ ‘[T]he key test is whether the sentence is proportionate to
the seriousness of the matter, not whether it departs from or adheres to the
guidelines’ recommended range.’ ” Steanhouse II, 500 Mich. at 472, quoting
Milbourn, 435 Mich. at 661. [Dixon-Bey, 321 Mich. App. at 490 slip op at 16.]
The sentencing guidelines are an “aid to accomplish the purposes of proportionality . . . .” Id. at
___; slip op at 18. Our Court elaborated:
Because the guidelines embody the principle of proportionality and trial courts
must consult them when sentencing, it follows that they continue to serve as a
‘useful tool’ or ‘guideposts’ for effectively combating disparity in sentencing.
Therefore, relevant factors for determining whether a departure sentence is more
proportionate than a sentence within the guidelines range continue to include (1)
whether the guidelines accurately reflect the seriousness of the crime, People v
Houston, 448 Mich. 312, 321-322; 532 NW2d 508 (1995), see also Milbourn, 435
Mich. at 657, (2) factors not considered by the guidelines, Houston, 448 Mich. at
322-324, see also Milbourn, 435 Mich. at 660, and (3) factors considered by the
guidelines but given inadequate weight, Houston, 448 Mich. at 324-325, see also
Milbourn, 435 Mich. at 660 n 27. [Dixon-Bey, 321 Mich. App. at 490; slip op at
18-19.]
Other factors to consider “include ‘the defendant’s misconduct while in custody, Houston, 448
Mich. at 323, the defendant’s expressions of remorse, id., and the defendant’s potential for
rehabilitation, id.’ ” Dixon-Bey, 321 Mich. App. 490; slip op at 19 n 9. However, this Court has
stressed that the proportionality review is “based upon the seriousness of the offense and not a
deviation from the guidelines.” Dixon-Bey, 321 Mich. App. 490; slip op at 22. And our Supreme
Court has noted:
Rather than impermissibly measuring proportionality by reference to deviations
from the guidelines, our 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 636.
[Steanhouse II, 500 Mich. at 474.]
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Both Schwander I and Schwander II reviewed the departure sentence under the
legislatively created “substantial and compelling” framework which has since been struck down
as unconstitutional. Lockridge, 498 Mich. at 391-392. The former “substantial and compelling”
framework has been replaced by Milbourn’s principle of proportionality, Steanhouse II, 500
Mich. at 459-460.
I would conclude that the trial court’s sentence was reasonable, as the trial court did not
abuse its discretion in determining that the sentence was proportionate to the crimes. People v
Walden, 319 Mich. App. 344, 351; 901 NW2d 142 (2017). The record is quite clear that the trial
court considered the nature of the offense and the background of the offender. The trial court
also discussed why some of the guidelines did not adequately address the circumstances of this
case and this particular offender. The trial court took the sentencing guidelines into
consideration but concluded in great detail that a longer sentence was more appropriate. Such a
conclusion was not an abuse of discretion. Again, although trial courts must consider the
guidelines when fashioning a sentence, “ ‘the key test is whether the sentence is proportionate to
the seriousness of the matter, not whether it departs from or adheres to the guidelines’
recommended range[.]’ ” Steanhouse II, 500 Mich. at 475, quoting Milbourn, 435 Mich. at 661.
As a result, the focus of our review is whether the trial court’s sentence was proportionate to the
seriousness of the crime, which is determined in part by the factors outlined in Milbourn. I
believe that the trial court did just that and that the resulting sentence was reasonable. I would
affirm.
/s/ Kirsten Frank Kelly
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