PEOPLE OF MI V ROBERT JENSEN SCHWANDER (Opinion and Order)
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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED January 31, 2013 Plaintiff-Appellee, v No. 307921 Grand Traverse Circuit Court LC No. 2011-011239-FC ROBERT JENSEN SCHWANDER, Defendant-Appellant. Before: CAVANAGH, P.J., and HOEKSTRA and SHAPIRO, JJ. PER CURIAM. Defendant appeals as of right his 40 to 70 year sentence for his second-degree murder jury conviction, MCL 750.317. We remand and retain jurisdiction. On June 2, 2011, defendant murdered 16-year-old Carly Lewis in an abandoned building where he had been living. Defendant knew Lewis and had lived in her mother s house until he was told to leave. On the day of the murder, defendant and Lewis planned to meet to smoke marijuana, which they did. When Lewis noticed that several items from her mother s house were in the building where defendant was living, they argued. The argument became physical and concluded with Lewis dead. Defendant then went on a date with his girlfriend. He returned to the building, removed Lewis clothes and buried her near the building. Seven days later, he removed the body, placed it in garbage bags, and reburied it nearby. When questioned by police about Lewis disappearance, defendant denied any knowledge. The police investigated the building where defendant lived and broken scissors were discovered in the drop ceiling. Upon further questioning, on June 14, defendant told police that Lewis was dead and directed them to where she was buried. He denied stabbing Lewis, but admitted that he had choked her to death. Forensic analysis later confirmed that blood on the scissors was Lewis blood. The victim s body was recovered after using a rod to probe underground in order to find its exact location. An autopsy revealed that Lewis had several slitlike stab wounds, including three on the left side of her face, two on her left breast, one on her right bicep, two on her right wrist, and one on the left side of her neck that extended downward and punctured her lung. A blunt force injury to her forehead was also noted. The forensic pathologist who performed the autopsy testified that evidence of strangulation was not present, that the stab wounds were inflicted while Lewis was alive and that some of the stab wounds were defensive in nature. He also opined that the cause of death was the stab wound that punctured -1- Lewis lung and that with prompt medical attention, she could have survived. A forensic pathologist, who testified for the defense, testified that the lung wound would not have resulted in death and that strangulation could not be ruled out. Defendant was charged with open murder, MCL 750.316. A jury trial was held and defendant was convicted of second-degree murder. The recommended sentence according to the sentencing guidelines was 160 to 270 months. Defendant s objections to the scoring of several offense variables were overruled and, after concluding that substantial and compelling reasons justified a departure from the guidelines, the trial court sentenced defendant to 40 to 70 years imprisonment. This appeal challenging the sentence followed. First, defendant challenges the trial court s scoring of offense variables (OV) 1, 2, 6, 10, 13, and 19, arguing that the record evidence does not support the particular scores. He objected to the scoring of each of these variables and so his challenges are preserved. MCL 769.34(10); MCR 6.429(C); People v McGuffey, 251 Mich App 155, 165; 649 NW2d 801 (2002). A trial court determines the sentencing variables by reference to the record, using the standard of preponderance of the evidence. People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). Its findings of fact are reviewed for clear error. Id. Defendant argues that OV 1, aggravated use of a weapon, was improperly scored at 25 points and OV 2, lethal potential of weapon used, was improperly scored at 5 points because the issue whether a stabbing weapon was used to inflict injuries to Lewis was a contested fact. See MCL 777.31(1)(a); MCL 777.32(1)(d). Defendant references the testimony of the defense forensic pathologist who opined that the use of a round probe by police to find Lewis body may have caused the wounds. However, the forensic pathologist who performed the autopsy testified that the wounds were slit-like, consistent with a knife-like stabbing, inflicted while Lewis was alive, some were defensive in nature, and one extended into her lung causing her death. In light of the evidence, the trial court s conclusion that defendant possessed and used a stabbing weapon to inflict injuries to Lewis was not clearly erroneous. See Osantowski, 481 Mich at 111. Defendant also argues that OV 6, which was scored at 25 points, should have been scored at 10 points because the death occurred in a combative situation. Pursuant to MCL 777.36(1)(b), OV 6 must be scored at 25 points if the offender had unpremeditated intent to kill, the intent to do great bodily harm, or created a very high risk of death or great bodily harm knowing that death or great bodily harm was the probable result. However, MCL 777.36(2)(b) provides for a score of 10 points if a killing is intentional within the definition of second degree murder or voluntary manslaughter, but the death occurred in a combative situation or in response to victimization of the offender by the decedent. Defendant argues that the death occurred in a combative situation; thus, only 10 points should have been scored under this variable. However, the evidence included that Lewis had defensive-like stab wounds. There was no evidence that defendant had any injuries. And, as the trial court noted, even if Lewis died by strangulation, she would have been unconscious and thus not combative for a period of time before dying. In light of the evidence, the trial court s conclusion that the death did not occur in a combative situation was not clearly erroneous. See Osantowski, 481 Mich at 111. Next, defendant argues that OV 10 was improperly scored at five points because he did not exploit any vulnerability of Lewis. Pursuant to MCL 777.40(1)(c), OV 10 must be scored at -2- five points if the offender exploited a victim by his or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious. The record evidence included that there was a significant size difference between Lewis, who was 5 2 tall, and defendant who is 6 tall. Further, defendant isolated Lewis by bringing her into an abandoned building, gave her marijuana, and then overpowered her with his physical strength allowing him to choke and stab her. Accordingly, the evidence adequately supported the trial court s scoring of OV 10 at five points. See Osantowski, 481 Mich at 111. Defendant also argues that OV 13 was improperly scored at 25 points. Pursuant to MCL 777.43(1)(b), OV 13 must be scored at 25 points if the offense was part of a pattern of felonious criminal activity involving three or more crimes against a person. The trial court scored OV 13 at 25 points because defendant had an on-going sexual relationship with a girl under the age of 16, constituting third-degree criminal sexual conduct, MCL 750.520(d)(1)(a). The evidence relied on in support of the score was the trial testimony of the defendant s underage girlfriend, and the PSIR report which indicated that sexual intercourse had occurred over 30 times. Defendant did not challenge the factual accuracy of the PSIR in that regard; thus, the PSIR is presumed accurate and the trial court was entitled to rely on the information. See People v Grant, 455 Mich 221, 233-234; 565 NW2d 389 (1997); Waclawski, 286 Mich App at 689. MCL 777.43(2)(a) provides that all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction. Accordingly, the trial court s scoring of OV 13 was supported by the record evidence. See Hornsby, 251 Mich App at 468. Defendant also argues that OV 19 was improperly scored at 10 points. Pursuant to MCL 777.49(c), OV 19 must be scored at ten points if the offender otherwise interfered with or attempted to interfere with the administration of justice. In assessing points under OV 19, a court may consider the defendant s conduct after the completion of the sentencing offense, including acts that interfere with the investigation of the crime by law enforcement. People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008); People v Barbee, 470 Mich 283, 288; 681 NW2d 348 (2004). Here, in brief, when questioned by police defendant denied having any information about Lewis disappearance, asked two people to provide an alibi, hid the scissors, moved out from the building, buried Lewis body, and then reburied Lewis body so that it would not be found. Because there is evidence to support the scoring decision, it is upheld. See People v Steele, 283 Mich App 472, 490; 769 NW2d 256 (2009). In summary, defendant s challenges to the trial court s scoring of OV 1, 2, 6, 10, 13, and 19 are without merit. Second, defendant argues that the trial court failed to provide substantial and compelling reasons in support of the extent of the upward departure from the sentencing guidelines range for the minimum sentence. Defendant had no prior record variable points and his offense variable score was 110 which is just above the 100 points minimally required for level III. This score places defendant in the Level A-III grid which provides for a minimum sentence range of 162 months to 270 months, or life. Thus, the highest minimum term of years allowed by the guidelines in this case was 22 ½ years. The court, however, imposed a minimum sentence of 40 years along with a maximum of 70 years. The minimum sentence, at 180% of the upper end of the guidelines, and 17 ½ years above that upper guideline, is an extraordinary departure. -3- In the face of the senseless murder of a young woman it is difficult to deem any sentence excessive. However, the legislature has adopted the sentencing guidelines in order to create consistency in minimum term sentencing and a trial court s departure from them must be grounded in substantial and compelling objective reasons that are not accounted for in the guidelines and that justify the particular extent of the departure. People v Babcock, 469 Mich 247, 257; 666 NW2d 231 (2003); People v Portellos, ___ Mich App ___; ___ NW2d ___ (Docket Nos. 301190, 301333, issued November 13, 2012). The trial judge in this case emphasized that a guideline sentence was inadequate because he did not believe he would still be on the bench when defendant became eligible for parole and so it would be up to his successor to bar parole in the event the parole board elected to grant it. He stated, [t]hat s having more faith in the process than I really care to have. This is not a proper basis to depart from the guidelines. The legislatively-imposed guidelines, the sentencing court and the parole board as well as the successor judge each have a distinct role to play in determining the actual length of time that the defendant ultimately remains in prison. The court imposed a maximum term of 70 years, and defendant is by no means guaranteed parole at any time prior to the completion of that maximum, let alone upon completion of his minimum sentence. A court may not impose a longer minimum sentence simply to deprive the parole board of jurisdiction; nor may it impose a sentence intended to prevent a successor judge from making whatever determination he or she believes is appropriate years or even decades from now. The trial court did offer two reasons that would properly justify a departure from the guidelines. First, that the victim could have been alive for one half hour to one hour after being stabbed during which time defendant took no action to call for medical assistance; although the court noted that defendant may have been unaware that the victim could have been saved. Second, that the defendant betrayed the trust of the victim s family that had taken him in and provided him with a home. These are objective, substantial and compelling grounds for which the court could depart from the sentencing guidelines by some amount. However, the trial court failed to set forth any analysis as to how the extent of this departure 17 ½ years, nearly doubling the upper limits of the guidelines was justified by these two factors, which tragically are common to many murders. In People v Smith, 482 Mich 292, 303; 754 NW2d 284 (2008) our Supreme Court stated that the statutory guidelines require more than an articulation of reasons for a departure; they require justification for the particular departure made (emphasis in original). As in Smith, [h]ere the trial judge gave no explanation for the extent of the departure independent of the reasons given to impose a departure sentence. Id. at 305-306. While Smith does not require mathematical specificity or precise words, it does require an explanation of why the [minimum] sentence imposed is more proportionate to the offense and the offender than a different [minimum] sentence would have been. Id. at 311.1 1 Smith went on to discuss the use of the entire sentencing guideline grid as a means of comparison of the reasons for departure to the extent of the departure. While such a comparison -4- Defendant s betrayal of the trust of the victim s family and his failure to summon medical help were objective and compelling reasons sufficient to justify some degree of departure from the guidelines.2 However, the trial court did not articulate why these reasons justify imposing a minimum sentence nearly double the highest minimum sentence under the guidelines. Accordingly, we remand the case to the trial judge to articulate why the factors he cited justify the extent of the departure from the guidelines, or for resentencing. We retain jurisdiction. /s/ Joel P. Hoekstra /s/ Douglas B. Shapiro is not required, the Smith Court noted that reference to the grid can be helpful. Id. at 309. Here, for the minimum sentence imposed to have been a guideline sentence, defendant s score would have had to place him in E-III, four levels above his actual scoring. 2 The dissent lists several other factors mentioned by the trial court during the sentencing hearing. However, the only factors specifically referenced by the trial court as reasons for departure from the guidelines were: (a) the defendant s cruelty in leaving the victim dying for half an hour to an hour [during which] she could have been saved, which [defendant] wouldn t necessarily know ; (b) the defendant s betrayal of the Lewis family s trust; and (c) the lack of remorse until the sentencing hearing which the trial court noted was a subjective, not an objective finding and so did not rely upon. See, People v Fields, 448 Mich 58, 69; 528 NW2d 176 (1995). The dissent also infers that the trial court concluded that the evidence could have supported a first degree murder conviction, but the trial court did not make a finding of premeditation and the jury specifically rejected such a conclusion. Lastly, the dissent notes that defendant took affirmative actions to cover up the murder, but he was scored under OV 19 for those actions. -5-
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