Sentencing; Upward departure; Reasonableness; People v. Lockridge; People v. Steanhouse (Steanhouse I, II, & III ); Proportionality; People v. Milbourn; People v. Dixon-Bey; Scoring of PRV 7; MCL 777.57(1)(a); Scoring of OVs 3, 5, 9, 13, & 17-19; MCL 777.33(1)(b) & (2)(c); MCL 777.35(1)(a); MCL 777.39(1)(c); MCL 777.43(1)(c); MCL 777.47(1)(a); MCL 777.48(1)(c); MCL 777.49(1)(c); An “accident”; Cassara v. DAC Servs., Inc. (10th Cir.); Allstate Ins. Co. v. McCarn; Remand for resentencing before a different judge; People v. Walker

Concluding that the trial court’s justifications for the upward departure sentence it imposed were taken into account by the scoring of the OVs and PRV 7, and that the trial court “expressed deep-seated personal opinions about defendant[,]” the court found that remand for resentencing before a different judge was necessary. Thus, it vacated his sentences and remanded. He pled “no contest to several charges arising from a fatal accident caused by his intoxication and reckless driving.” The trial court departed upward from the recommended minimum guidelines range of 43 to 86 months to sentence him “to a minimum sentence of 10 years (120 months), a departure of” almost 3 years. The court noted that “defendant’s decision to drive while intoxicated was covered by OVs 3, 17, and 18. [His] reckless driving was the foundation of his score for OV 17. The fact that the other driver was killed in the incident and her two sons seriously and permanently injured was taken into consideration in scoring OVs 3 and 9. The death of a victim was also an element of two of the sentencing offenses, and the serious injury of a victim was an element of the third. Indeed, defendant’s intoxication was an element of two of the conviction offenses as well. The psychological impact of losing a wife, mother, and daughter, and of facing a future caring for a now physically disabled child was accounted for in OV 5.” While the trial court acknowledged it had “to impose a reasonable and proportionate sentence, it did not explain how or why the circumstances were not adequately encapsulated by the guidelines and their maximum scores.” Further, the court found that the trial court “fixated on its characterization of this ‘incident’ as nonaccidental. In every drunk driving offense, the offender chooses to drink and chooses to drive. Defendant’s intent in this case was no different than the intent of any other drunk driving offender and does not remove the collision from the realm of ‘an accident.’” The devastating results of his actions had no bearing on his intent, and his “‘decision’ to drink and drive was not a proper consideration in departing upward without further explanation.” In addition, the court concluded that reassignment was needed “to preserve the appearance of justice and impartiality on the part of the bench.”