PEOPLE OF MI V COREY STAFFORD SCALES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 18, 2004
Plaintiff-Appellee,
v
No. 246411
Wayne Circuit Court
LC No. 01-013625
COREY STAFFORD SCALES,
Defendant-Appellant.
Before: Wilder, P.J., and Hoekstra and Kelly, JJ.
PER CURIAM.
Defendant was charged with two counts of first-degree murder, MCL 750.316(1)(a), two
counts of felony-murder, MCL 750.316(1)(b), one count of armed robbery, MCL 750.529, one
count of assault with intent to murder, MCL 750.83, and one count of possession of a firearm
during the commission of a felony, MCL 750.227b. A jury found defendant guilty of armed
robbery, MCL 750.529, and the trial court sentenced him to life in prison. We affirm
defendant’s conviction, but remand for resentencing before a different judge.
Defendant’s only challenge to his conviction is that the trial court erred in refusing to
instruct the jury on the defense of abandonment. We disagree. Claims of instructional error are
reviewed de novo. People v Perez, 469 Mich 415, 418; 670 NW2d 655 (2003).
In People v Kimball, 109 Mich App 273; 311 NW2d 343 (1981), modified 412 Mich 890
(1981), this Court recognized that “voluntary abandonment is an affirmative defense to a
prosecution for criminal attempt.” Id. at 286. Here, defendant was not charged with criminal
attempt, but rather completed offenses. Consequently, defendant was not entitled to an
abandonment instruction.
Defendant also challenges the life sentence that the trial court imposed for the armed
robbery conviction. Defendant maintains that he is entitled to resentencing before a different
judge because the trial court disregarded the sentencing guidelines range of 108 to 180 months
and failed to state sufficient substantial and compelling reasons for the imposed departure, and
erroneously assumed that defendant was guilty of murder. Because the trial court disregarded
the sentencing guidelines for armed robbery and in effect sentenced defendant as if he were
convicted of murder and assault with intent to murder, we agree that defendant is entitled to
resentencing before a different judge.
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We review de novo whether the trial court has properly applied the statutory sentencing
provisions. People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001).
At sentencing, the trial court recited its interpretation of the evidence presented at trial
and concluded that defendant “is just as guilty as the shooter or shooters, if he is not the shooter
himself. And it doesn’t make any difference.” Further, the court stated that “I don’t feel
constrained by any findings of the jury as to what my sentence is going to be,” and concluded by
stating that “[t]he [c]ourt is going to completely ignore the guidelines.”
When sentencing a defendant, the sentencing court is not permitted to independently find
that the defendant committed a crime that the jury acquitted him of and sentence the defendant
on the basis of that finding. People v Compagnari, 233 Mich App 233, 236; 590 NW2d 302
(1998). In this case, that is exactly what occurred. The record plainly reveals that based on the
evidence it heard during the trial, the trial court, unlike the jury, found defendant guilty of two
murders and an assault with intent to murder. Further, the record establishes that the trial court
imposed a life sentence for the armed robbery conviction as the means to effectuate a sentence
upon defendant for those charges. Thus, the trial court’s life sentence is not based on substantial
and compelling reasons for a departure from the guidelines sentencing range, MCL 769.34(2),
(3), People v Babcock, 469 Mich 247, 272; 666 NW2d 231 (2003), or on grounds that applicable
offense variables (OV) such as discharging a firearm at or toward a human being (OV 1), MCL
777.31(1)(a), or a victim was killed (OV 3), MCL 777.33(1)(a), or a victim was treated with
sadism, torture, or excessive brutality (OV 7), MCL 777.37(1)(a), or the number of victims was
between two to nine (OV 9), MCL 777.39(1)(c), were inadequately weighed. MCL
769.34(3)(b), Babcock, supra. Consequently, we must remand for resentencing. MCL
769.34(11), Babcock, supra at 273.
Further, we conclude that reassignment to a different judge is necessary because the trial
judge’s comments at sentencing indicate that that judge would reasonably be expected to have
substantial difficulty in putting aside his strongly held views and findings in this case. People v
Hill, 221 Mich App 391, 398; 561 NW2d 862 (1997). Additionally, reassignment is advisable to
preserve the appearance of justice and would not entail waste or duplication that is out of
proportion to the gain in preserving the appearance of fairness. Id.
Affirmed, but remanded for resentencing before a different judge. We do not retain
jurisdiction.
/s/ Kurtis T. Wilder
/s/ Joel P. Hoekstra
/s/ Kirsten Frank Kelly
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