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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED January 5, 2016

v No. 323325 Monroe Circuit Court CRYSTALANN MARIE BOWERS, LC No. 13-040720-FH

Defendant-Appellant.

Before: J ANSEN , P.J., and C AVANAGH and G LEICHER , JJ.

P ER C URIAM

. Defendant appeals by leave gran ted her departure sentence for her plea-based conviction of involuntary manslaughter, MCL 750.321. The minimum range re commended by the sentencing guidelines was 19 months to 38 months, but defendant was sentenced to 71 months to 15 years’ imprisonment. We affirm, but remand for further sent encing proceedings consistent with this opinion.

On February 5, 2013, defendant arrived at a motel with her boy friend Bradley Ravary and the victim, Thayer Stump Jr. Over the next three days, the gro up stayed in their motel room consuming crystal methamphetamine. On the evening of February 7, 2013, Stump told defendant and Ravary that he had not slept since they arrived a t the motel because of his methamphetamine use and was tired. Stump asked defendant to pu rchase heroin which would bring down his high and help him sleep. Defendant left the roo m, purchased heroin, and then returned to their room.

At approximately 11:00 p.m., Stump was injected with the heroi n and almost immediately told defendant and Ravary that he was tired and fel l asleep. Defendant and Ravary heard Stump begin to snore and also heard a period of labored b reathing. Defendant or Ravary then threw a pillow in Stump’s direction to quiet him down. Ra vary testified that at 2:30 a.m. he became concerned when he noticed that Stump had stopped snoring . He then observed that Stump had stopped breathing, splashed ice water on his face try ing to wake him, and called 911. During this time, defendant clean ed up the drug paraphernalia i n their room. Stump was eventually declared dead at the motel.

Defendant argues that the trial court abused its discretion in departing upward from the minimum sentencing guidelines range of 19 to 38 months’ impriso nment because the articulated reasons for the departure sentenc e were not substantial and com pelling. We need not review-2- defendant’s argument because the requirement that a trial court justify a departure sentence with a substantial and compelling reason was struck down in People v Lockridge , 498 Mich 358, 391; 870 NW2d 502 (2015). See People v Steanhouse , ___ Mich App ___; ___ NW2d ___ (Docket No. 318329, issued October 22, 2015); slip op at 21 n 14. A de parture sentence is now reviewed for reasonableness. Lockridge , 498 Mich at 392.

A reasonable sentence under Lockridge is a sentence that fulfills the principle of proportionality set forth in People v Milbourn , 435 Mich 630; 461 NW2d 1 (1990) and its
progeny. Steanhouse , ___ Mich App at ___; slip op at 24. That is, a sentence must be “proportionate to the seriousness of the circumstances surround ing the offense and the offender.” Milbourn , 435 Mich at 636. The Milbourn Court held that “departures are appropriate where the guidelines do not adequately account for important factors legi timately considered at sentencing,” id . at 657, but the extent of the departure must also satisfy the principle of proportionality, id . at 660. Factors that have been considered under the proporti onality standard include (1) the seriousness of the offense, (2) factors not con sidered by the guidelines, including the relationship between the vic tim and the defendant, the defe ndant’s conduct while in custody, expressions of remorse, as well as the defendant’s rehabilitati on potential, and (3) factors that were inadequately considered by the guidelines in a particular case. Steanhouse , ___ Mich App at ___; slip op at 24.

At the time of defendant’s sentencing, neither Lockridge nor Steanhouse had been decided so “the trial court was unaware of and not expressly bo und by a reasonableness standard rooted in the Milbourn principle of proportionality at the time of sentencing.” Steanhouse , ___ Mich App at ___; slip op at 25. The appropriate remedy is to r emand this matter to the trial court for a hearing under United States v Crosby , 397 F3d 103 (CA 2, 2005), as discussed in Steanhouse , ___ Mich App at ___; slip op at 25, and explained in Lockridge , 498 Mich at 395- 399. “[T]he purpose of a Crosby remand is to determine what effect Lockridge would have on the defendant’s sentence, so that it may be determined whether any prejudice resulted from the error.” People v Stokes , ___ Mich App ___; ___ NW2d ___ (Docket No. 321303, issued September 8, 2015); slip op at 11. Under the new reasonablenes s standard, resentencing could result in defendant receiving a mo re severe sentence; thus, she must have an opportunity to avoid resentencing by promptly notifyi ng the trial court that resente ncing will not be sought. Id .; slip op at 11-12. “If ‘notification is not received in a timely man ner,’ the trial court shall continue with the Crosby remand procedure as explained in Lockridge .” Id .; slip op at 12, quoting Lockridge , 498 Mich at 398.

Defendant also argues that, if her request for resentencing is granted, resentencing should be before a different judge. In support of her argument, defen dant relies on People v Evans , 156 Mich App 68; 401 NW2d 312 (1986), which s et forth the following three-part test:

(1) whether the original trial judge would reasonably be expect ed upon remand to have substantial difficulty in put ting out of his or her mind p reviously-expressed views or findings determined to be erroneous or based on eviden ce that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and du plication out of proportion to any gain in preserving the appearance of fairness . [ Id . at 72 (citation omitted)].-3- Defendant claims that the sentenc ing judge’s brief comment rega rding “bad press” for a sentence issued in a different case, as well as comments about “a demons tration against he roin and [that] heroin was a large community problem,” entitled her to resenten cing before a different judge to preserve the appearance of justice. Defendant also argues that these comments demonstrate that the trial judge was “not an unbiased or impartial decisionmaker ” and, thus, the trial judge should be disqualified under MCR 2.003( C)(1)(a). We disagree.

First, resentencing is required in this case because of the po st-sentencing decisions in Lockridge and Steanhouse , not because the trial court’s sentence was erroneous; thus, t he first part of the Evans ’ test is not met. Second, we have reviewed the trial court’s comments in context and they give us no cause for concern that its sentenci ng decision was based on inappropriate considerations. I n fact, the court discussed at length the requirement that sentences be individualized and proportiona te, noting that: “The relevan cy of proportionality is obvious; as in any civilized society, punishme nt should be made to fit the crime and the criminal.” Third, for disqualification to be warrant ed under MCR 2.003(C)(1)(a), the trial judge must be shown to be personally and actually biased or prejudiced for or against a p arty. See Cain v Mich Dep’t of Corrections , 451 Mich 470, 495-496; 548 NW2d 210 (1996). The challenged c omments here do not demonstrate that the trial j udge was actually and personall y biased against defendant, and there is no indication that the sentence imposed was the produc t of any such bias or prejudice. Again, the trial judge made it clear that the sentence imposed was based on the circumstances surrounding the offense and the offender. Accordingly, defenda nt’s request that resentencing occur before a different judge is denied.

We affirm, but remand for further sentencing proceedings consi stent with this opinion. We do not retain jurisdiction.

/s/ Kathleen Jansen /s/ Mark J. Cavanagh /s/ Elizabeth L. Gleicher