The Robert Schwander sentencing matter has been remanded so many times that I’ve lost count.
But the 13th Circuit Court won’t be hearing the Schwander sentencing again any time soon. That’s because the Grand Traverse County Prosecutor-Elect Noelle Moeggenberg is appealing the latest remand to the Michigan Supreme Court.
The long story short is that the jury convicted Robert Schwander of second-degree murder. But the 13th Circuit Court judges wish that he had been convicted of first-degree murder. And they keep sentencing him for first-degree murder even though the law doesn’t support it. Rather than allow the 13th Circuit Court to have another go at it with Judge Elsenheimer, Moeggenberg is asking the Michigan Supreme Court to overrule the Court of Appeals and reinstate Schwander’s sentence. Schwander’s sentence is 17 1/2 years more than the recommended sentence for his offense.
The case has been languishing in the Michigan Supreme Court since Moeggenberg filed her application for leave to appeal on July 3.
Even though there was a dissenting opinion in the Michigan Court of Appeals opinion, I don’t think the prosecutor is going to be successful in their appeal. The dissent gets into proprotionality as the standard for sentencing rather than substantial and compelling. But where the dissent goes wrong is that they don’t complain that Judge Rodgers proudly gave Schwander a first-degree murder sentence for a second-degree conviction.
Ultimately, to borrow from the majority’s opinion, this is what’s wrong with what the 13th Circuit Court is trying to do with the Schwander sentencing: “We find it unreasonable and disproportionate to sentence Schwander to the same minimum term for a conviction of second-degree murder.”
As long as the 13th Circuit Court keeps doing that, they’re going to keep getting remanded.
My spell checker doesn’t know the words proportaionlity or remanded.