PEOPLE OF MI V EDWARD JOHNIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 8, 2007
Plaintiff-Appellee,
v
No. 267727
Wayne Circuit Court
LC Nos. 03-004486-01
03-004489-01
EDWARD JOHNIGAN,
Defendant-Appellant.
Before: Hoekstra, P.J., and Markey and Wilder, JJ.
PER CURIAM.
Defendant appeals by right from his resentencing to life in prison for his conviction of
felon in possession of a firearm, MCL 750.224f, as a fourth-habitual offender, MCL 769.12. We
affirm.
Defendant is a murderer for hire. In 2003, he was tried for two contract murders in
separate jury trials in Wayne County. In the first case, defendant was accused of murdering a
drug informant. The jury found him guilty of first-degree, premeditated murder, MCL
750.316(1)(a), felon in possession, and possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. He was sentenced to life in prison without the
possibility of parole for the murder, with lesser sentences for the other offenses. In the instant
case involving the death of Michael Moore, defendant was acquitted of first-degree murder and
felony-firearm, but was found guilty of felon in possession. On August 19, 2003, he was
sentenced as a habitual offender to life in prison for the possession offense. This sentence fell
outside the guidelines.
Defendant’s appeals were consolidated. A divided panel of this Court unanimously
upheld defendant’s convictions. People v Johnigan, 265 Mich App 463; 696 NW2d 724 (2005).
However, the panel split regarding the proper resolution of defendant’s challenge to the sentence
in the instant case. Regarding the sentence guidelines departure, the majority held that because
the trial court failed to articulate substantial and compelling reasons to depart from the
sentencing guidelines, this Court was required to remand for resentencing. Id. at 467-470, 478
(Sawyer, J.), 478-479 (Schuette, P.J., concurring). Judge Sawyer agreed that the circumstances
of defendant’s offenses might justify a departure and noted that defendant was “deserving of
enhanced criminal penalties” and would spend the rest of his life in prison on the basis of his
murder convictions, but found that the trial court’s failure to articulate reasons for departure, or
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even acknowledge its sentence was a departure, prevented this Court from affirming the
sentence. Id. at 477-478. Judge Schuette concurred, noting that defendant is a “hardened
contract killer,” agreed with the remand so that the trial court could “simply state on the record
the reasons (and many reasons exist) for a proper upward departure in sentencing defendant.” Id.
at 478-479. Judge O’Connell, dissenting, found that the trial court had provided substantial and
compelling reasons for the sentence departure, agreed with the trial court’s determination that
defendant’s criminal history was not adequately addressed by the guidelines, and would hold that
the sentence was proportionate. Id. at 481.
On remand, the trial court again sentenced defendant to life imprisonment. The trial
court adopted its earlier reasons for departure, noted that Judge O’Connell found them adequate,
and adopted portions of both the concurring and dissenting opinions as grounds for departure.
The trial court observed that the guidelines “did not contemplate that kind of a lifestyle or
choices that were made by the defendant,” and noted that it did not believe defendant was
innocent of Moore’s murder, but stated that “that’s not a factor here I recognize.” The trial court
also held that, while the fact that defendant was a fourth habitual offender allowed him to
sentence defendant to a life sentence, defendant’s habitual status was not itself the reason for the
life sentence.
On appeal, defendant argues that the trial court has again failed to articulate substantial
and compelling reasons for departure. He argues that the trial court inappropriately used the fact
that it believed defendant was guilty of killing Moore as a factor for departure. Defendant also
argues that the trial court could not have determined that defendant was a contract killer because
“there was no conviction for any of these other alleged acts.” Defendant asserts that he is
entitled to be resentenced before a different judge because the trial court is obviously biased
against him. We disagree.
In reviewing a departure from the guidelines range, we review the existence of a
particular factor for clear error, the determination that the factor is objective and verifiable as a
matter of law, the determination that the factors constituted substantial and compelling reasons
for departure for an abuse of discretion, and the extent of the departure for an abuse of discretion.
People v Babcock, 469 Mich 247, 256-257; 666 NW2d 231 (2003. In ascertaining whether the
departure was proper, we must defer to the trial court’s direct knowledge of the facts and
familiarity with the offender. Id. at 270.
A court may depart from the sentencing guidelines range if it has a substantial and
compelling reason to do so, and states on the record the reasons for departure. MCL 769.34(3);
People v Hegwood, 465 Mich 432, 437 n 10; 636 NW2d 127 (2001). A court may not depart
from a sentencing guidelines range based on an offense or offender characteristic already
considered in determining the guidelines range unless the court finds, based on facts in the
record, that the characteristic was given inadequate or disproportionate weight. MCL 769.34(3);
Babcock, supra at 258 n 12, 267-288. Factors meriting departure must be objective and
verifiable, must keenly attract the court’s attention, and must be of considerable worth. Id. at
257-258. To be objective and verifiable, the factors must be actions or occurrences external to
the mind and must be capable of being confirmed. People v Abramski, 257 Mich App 71, 74;
665 NW2d 501 (2003). In addition, we review a departure from the guidelines range to
determine whether the sentence imposed is proportionate to the seriousness of the defendant’s
conduct and his criminal history. Babcock, supra at 262 n 20, 264.
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In the instant case, we hold that the trial court’s reasons for departure are objective and
verifiable, and substantial and compelling. While defendant maintains that the guidelines
addressed his prior and concurrent offenses, we agree with the trial court that the guidelines were
not adequate in this unique situation. None of the offense variables, including continuing pattern
of criminal behavior (OV 13), MCL 777.43, are designed to score a career murderer.
As noted above, the trial court specifically held that it was not using its belief that
defendant was guilty of killing Moore as a factor in resentencing. Contrary to defendant’s
arguments, the trial court was justified in determining, as did all of the members of the earlier
panel of this Court, that defendant is a contract killer. Defendant ignores his other two murder
convictions and the large quantity of evidence detailing his common plan to commit murder for
hire. This evidence showed that defendant possessed the weapons that formed the basis for the
instant conviction specifically to carry out those killings. Therefore, defendant’s argument that
the trial court improperly considered the circumstances surrounding Michael Moore’s death, and
that of defendant’s other victims, is without merit. See People v Compagnari, 233 Mich App
233, 236; 590 NW2d 302 (1998).
The record likewise amply supports the trial court’s decision that defendant was
incapable of rehabilitation. Defendant’s criminal history is extensive. The Department of
Corrections’ report reveals that defendant has 21 active prison sentences. All but one involves
the possession or use of a weapon.
We find these factors to be substantial and compelling; they keenly attract this Court’s
attention. Babcock, supra at 256-257. Given defendant’s criminal history and the circumstances
surrounding this offense, we find that the life sentence is proportionate to the crime and the
offender. Id. at 264.
We also find that defendant is not entitled to resentencing before a different judge. A
trial judge may be subject to disqualification if the “judge is personally biased or prejudiced for
or against a party or attorney.” MCR 2.003(B)(1); Cain v Dep’t of Corrections, 451 Mich 470,
495; 548 NW2d 210 (1996). Disqualification is not warranted unless “the bias or prejudice is
both personal and extrajudicial. Thus, the challenged bias must have its origin in events or
sources of information gleaned outside the judicial proceeding.” Id. at 495-496. “Furthermore,
the party who challenges a judge on the basis of bias or prejudice must overcome a heavy
presumption of judicial impartiality.” Id. at 497.
Here, defendant argues that the trial court’s comments during the resentencing hearing
are evidence of the trial court’s bias. Defendant is mistaken. Hostile comments are ordinarily
not supportive of finding bias. People v Wells, 238 Mich App 383, 391; 605 NW2d 374 (1999).
We have thoroughly reviewed the trial court’s comments during resentencing. They show that
the trial court was more aggrieved at this Court for having remanded the case considered to be an
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inadequate basis than they show bias against defendant. Defendant has not established grounds
for resentencing before a different judge.
We affirm.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
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