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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

July 21, 2015 

v No. 320768 

Grand Traverse Circuit Court 

ROBERT JENSEN SCHWANDER, LC No. 2011-011239-FC 

 Defendant-Appellant. 

Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ. 

K. F. KELLY, J. (dissenting).

 I respectfully dissent because I disagree with the majority’s conclusion that the 

resentencing court failed to articulate legally cognizable grounds justifying the extent of the 

departure. 

 I am mindful of the comments my esteemed colleague made in his dissenting opinion in 

People v Schwander, unpublished opinion of the Court of Appeals, issued January 31, 2013 

(Docket No. 307921): 

 After review of the record, it appears to me that the trial court adequately 

explained why substantial and compelling reasons justified the extent of departure 

imposed. I note, and infer from what the trial court articulated that: 

• the evidence supported a first-degree murder conviction which would have 

resulted in a mandatory sentence of life imprisonment; 

• defendant’s prior relationship with the victim and her family was an aggravating 

circumstance because he may have killed the victim in retaliation for being asked 

to move from the victim’s mother’s house where he had been living after being 

homeless; 

• defendant’s claim that his actions against the victim were in response to a 

“combative situation” was incredible in light of the relative size difference, his 

obvious animus toward the victim, and the numerous, bleeding stab wounds that 

the victim suffered; 
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• defendant took several conscious and concerted actions to conceal the murder, 

mislead police, and avoid detection, including: (1) stripping the victim naked and 

burning her clothes, (2) giving away her personal effects, (3) burying, then 

moving and reburying her body in a more discreet location, (4) sending the victim 

fake, but discoverable messages, (5) repeatedly denying any knowledge of the 

victim’s whereabouts to her family and friends, as well as police, and (6) joining 

in the search for the victim with the expressed, yet false, hope of her return; 

• defendant had a significant amount of time to assist the victim after he stabbed 

her numerous times, before she died from her wounds, but did nothing to help her; 

• because of the nature of the victim’s wounds, her struggle to breathe and her 

need for assistance would have been plainly obvious to defendant, but he ignored 

her and let her slowly die which illustrates significant depravity; 

• even if defendant’s claim that he strangled the victim to death was true, he 

would have had to strangle her for a significant period of time, even after she lost 

consciousness, for death to result which illustrates significant depravity; and 

• the murder and defendant’s actions after the murder were particularly heinous 

considering the fact that the victim’s family had provided defendant a home when 

he was homeless. [Id. at slip op pp 2-3 (Cavanagh, J., dissenting).] 

 On remand, and armed with Judge Cavanagh’s dissent, Judge Rodgers acknowledged that 

the sentence was a substantial departure from the guidelines. However, unlike Judge Power, 

who only offered two reasons for departure from the guidelines that this Court found acceptable, 

Judge Rodgers offered a lengthy list and explanation of his reasons for departure on the record, 

including: 1) the depravity of the murder and the length of time it took for the victim to die, and 

the fact that prompt medical attention likely would have saved the victim’s life; 2) the “gross 

abuse” of the trust of the victim’s family, which housed defendant for a time and provided him 

with food and shelter; 3) the fact that defendant did not show remorse for the murder and “in fact 

blame[d] the victim in part for her own death [by] calling her the aggressor despite [their] 

obvious physical difference in size and strength;” 4) the twelve day search for the victim after 

she was reported missing, which gave rise to fear in the community;1

 and 5) defendant’s 

“complete and utter disrespect” in his treatment of the victim’s body following her death. 

 

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 The majority concludes that “community reaction to a crime is not an objective benchmark of 

the nature of the offense or the character or the offender” and that “[t]he community’s 

condemnation is subsumed in its verdict.” But the resentencing court did not enhance the 

punishment based on community outrage; rather, the resentencing court focused on the fear that 

the community suffered from not knowing where the victim was or what may have happened to 

her. However, for the most part, the majority concedes that there were several aspects of the 

crime that justified an upward departure. 
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 In our prior opinion, we stated that “mathematical specificity or precise words” were not 

required to explain the extent of a departure by the prevailing case law. Schwander, slip op p 4. 

Rather, Smith requires “‘an explanation of why the sentence imposed is more proportionate to 

the offense and the offender than a different sentence would have been.’” Id. In reinstating 

defendant’s original sentence Judge Rodgers added that he “trust[ed] the magnitude of the 

departure has now been fully explained and that justice has been done . . .” Given his thorough 

understanding of the record before him, Judge Rodgers imposed a sentence that was more 

proportionate to the offense and the offender than one within the recommended guidelines range. 

Judge Rodgers supplied reasons that more than adequately supported, not only a departure from 

the sentencing guidelines, but the extent of the departure. 

 I would affirm. 

/s/ Kirsten Frank Kelly