People of Michigan v. Kyle Austin Nelson ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 21, 2019
Plaintiff-Appellee,
v No. 343305
Oakland Circuit Court
KYLE AUSTIN NELSON, LC No. 2017-264428
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and METER and GLEICHER, JJ.
METER, J. (concurring in part, dissenting in part).
I agree with the majority’s denial of defendant’s claim regarding an anonymous jury as
well as its conclusion that the trial court erred by scoring OV 19 at 10 points. Because the
scoring error entitled defendant to resentencing, People v Francisco, 474 Mich. 82, 92; 711
NW2d 44 (2006), I would have declined to address defendant’s argument regarding his out-of-
guidelines sentence. Further, I respectfully disagree with the majority’s conclusion that
resentencing must occur before a different judge.
Remand before a different judge is appropriate “when 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” or when reassignment is necessary to preserve the appearance of fairness.
People v Evans, 156 Mich. App. 68, 72; 401 NW2d 312 (block notation omitted). Defendant
argued that resentencing before a different judge is necessary because the trial judge would have
substantial difficulty setting aside his improper attitude toward defendant. Defendant argued that
the trial judge’s improper attitude was revealed in the trial judge’s decision to depart from the
guidelines when sentencing defendant and the trial judge’s statement that defendant’s crimes
were “despicable, odious, repulsive, repugnant, repellant, detestable, revolting, and rebarbative.”
I disagree.
Although harsh, the trial judge’s comments were a reasonable description of defendant’s
offenses, in which he exploited his relationship with his nephew to sexually prey on him and his
friend. With regard to the trial court’s decision to issue a sentence outside the guidelines range, I
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note that, although I would not reach this issue, the trial judge based his decision on his appraisal
of several factors that he believed were not adequately addressed in the guidelines. If, in his
appraisal of these factors, the trial judge misinterpreted the evidence or made other legal errors,
these errors have now been identified and corrected by the majority opinion. In short, there is
nothing in the record from which I can conclude that the original trial judge would be unable to
issue an objective sentence on remand—particularly now that his previous errors have been
identified by the majority opinion. Accordingly, I would decline defendant’s request to assign a
new judge on remand.
/s/ Patrick M. Meter
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