PEOPLE OF MI V WINDELL CHRISTOPHER LEWIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 13, 2007
Plaintiff-Appellee,
v
No. 272822
Berrien Circuit Court
LC No. 06-003010-01
WINDELL CHRISTOPHER LEWIS,
Defendant-Appellant.
Before: Cavanagh, P.J., and Donofrio and Servitto, JJ.
PER CURIAM.
Defendant appeals as of right from his sentences for his jury convictions of two counts of
first-degree fleeing and eluding, MCL 257.602a(5), two counts of operating a motor vehicle
without a license causing death, MCL 257.904(4), two counts of failure to stop at the scene of an
accident resulting in death, MCL 257.617(3), two counts of failure to stop at the scene of an
accident resulting in serious impairment, MCL 257.617(2), and two counts of involuntary
manslaughter, MCL 750.321. Defendant was sentenced to concurrent prison terms of ten to 15
years for each conviction, with the exception of the convictions of failure to stop at the scene of
an accident resulting in serious impairment, for which the trial court imposed concurrent terms of
three years, four months to five years. We affirm.
Defendant’s convictions arose out of a fatal automobile accident that occurred in the
early morning hours of October 15, 2005, while defendant was fleeing from police officers in a
stolen vehicle. Defendant was driving at a high rate of speed in a 25-mile per hour residential
area. Defendant ran a stop sign and collided with two automobiles. Two of the occupants of one
vehicle, Alvin Golden and Lester Johnson, were killed. Another passenger, Christopher Battle,
suffered a closed head injury, a fractured shoulder, facial scarring, and a severed ear, and was in
a coma for one week. The final occupant, Antwan Golden, was in a coma for one month,
suffered a stroke, was blinded in his right eye, and suffered other injuries. Defendant fled on
foot after the accident.
The sentencing guidelines for defendant’s convictions of failure to stop at the scene of an
accident resulting in death recommended a minimum term range of 50 to 100 months. MCL
777.64. However, the trial court sentenced defendant to the statutory maximum of ten to fifteen
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years in prison. The trial court adopted the prosecutor’s proposed reasons for exceeding the
guidelines, including the facts that: defendant had previously fled from police officers,1 the
guidelines did not take into account the serious injuries that occurred to Christopher Battle and
Antwan Golden or the second death that occurred, defendant had escaped house arrest at the time
of these offenses, defendant was apprehended after this accident while yet again fleeing from
police in a stolen car, defendant was repeatedly truant from juvenile detention, defendant fled the
scene of the accident when it was clear that at least one person was dead, defendant’s conduct
resulted in psychological injury to the survivors, and defendant’s OV score was twice the
maximum covered under the guidelines.
In reviewing a departure from the guidelines range, the existence of a particular factor is
a factual determination subject to review for clear error, the determination that the factor is
objective and verifiable is reviewed de novo, and the determination that the factors constituted
substantial and compelling reasons for departure and the extent of the departure are reviewed for
an abuse of discretion. People v Babcock, 469 Mich 247, 265-269; 666 NW2d 231 (2003);
People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (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. Babcock, supra at 270.
A court may depart from the sentencing guidelines 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, 439; 636 NW2d 127 (2001). A court may not depart from the
sentencing guidelines based on an offense or offender characteristic already considered in
determining the guidelines unless the court finds, based on facts in the record, that the
characteristic was given inadequate or disproportionate weight. MCL 769.34(3); People v
Hendrick, 261 Mich App 673, 682; 683 NW2d 218 (2005), aff’d in part and rev’d in part 472
Mich 555 (2005). Factors meriting departure must be objective and verifiable, must keenly
attract the court’s attention, and must be of considerable worth. Babcock, supra 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. Abramski, supra. We must also 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 263 n 20,
264. If a trial court articulates multiple reasons for its departure, and we determine that some of
the reasons are invalid, we must determine whether the trial court would have departed, and if so
to the same degree, on the basis of the valid reasons alone. Id. at 260-261, 273. If we are unable
to make such a determination, we must remand for resentencing or re-articulation. Id. at 271.
Defendant maintains that the trial court erred because his previous incidents of fleeing
and eluding were covered under the sentencing guidelines in PRV 4 (prior low severity juvenile
adjudications). Defendant also maintains that, because he received additional convictions for the
additional death, the injuries to Battle and Antwan Golden, his fleeing and eluding, and his
decision to drive without a license, these actions were already considered under the guidelines,
1
The lower court record indicates that defendant, while driving stolen cars, previously fled
police on October 22, 2001, and on March 7, 2002.
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particularly in PRV 7 (concurrent convictions), and could not be used as reasons for sentence
departure. Moreover, defendant contends that all OV scores over 75 points should be treated
equally. We disagree.
The trial court’s reasons for departure are objective and verifiable, and are substantial and
compelling. Defendant’s arguments have little merit where the trial court correctly found that
the guidelines did not adequately take into account the circumstances of the offenses and
defendant’s circumstances. For example, defendant received 20 points for OV 7, representing
the fact that he had “2 or more subsequent or concurrent felony convictions.” MCL 777.57.
This score does not adequately reflect defendant’s ten concurrent serious convictions. Nor does
the fact that defendant received five points for OV 4, which does not take into account his later
flight from the police which led to his apprehension, adequately reflect the seriousness of
defendant’s pattern of extremely dangerous behavior.
In addition, defendant has provided no support for his contention that, because he was
convicted of separate offenses concerning the injuries to Battle and Antwan Golden, the trial
court could not use the extent of these injuries as a rationale for departure. We agree that the
guidelines did not adequately take these injuries into account. Because the scored offense
involved a “homicide”, the injuries to Battle and Antwan Golden were not scored under OV 3.
MCL 777.33(2)(b); MCL 777.1(c). Because defendant had already received 100 points for OV 9
due to the multiple deaths that occurred, the injures to the other survivors were not adequately
addressed in this scoring variable. MCL 777.39. The survivors’ injuries occurred during the
same offense, and the severity of the offense was heightened by the presence of these additional
victims with catastrophic injuries. This constitutes a valid reason for sentence departure.
Finally, we agree with the trial court’s notation that the extent to which defendant’s OV
score exceeded the maximum range indicates that the guidelines were inadequate to address this
situation.
As a whole, the circumstances of this offense and defendant’s circumstances keenly grab
our attention. We thus find that the extent of the departure did not constitute an abuse of
discretion, and that the sentence is proportionate.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Pat M. Donofrio
/s/ Deborah A. Servitto
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