COA upholds 33 to 50-year murder sentence levied on Schwander

Oct. 8—GRAND RAPIDS — In a split decision, a three-judge panel of the Michigan Court of Appeals affirmed a second-degree murder sentence levied by a trial court judge on Robert Schwander, convicted in 2011 of the stabbing death of Traverse City teenager, Carly Lewis.

The appeals court's decision, dated Oct. 6, marks the fifth time Schwander has appealed his sentence.

"Obviously I'm very supportive of this news," Grand Traverse County Prosecutor Noelle Moeggenberg said Friday. "I hope this is the end for both families."

Schwander's appeals over the past decade have garnered mixed results and focused on what the defense has characterized as inadequate reasoning by 13th Circuit Court judges to exceed sentencing guidelines.

A jury in 2011 convicted Schwander, then 17, of second-degree murder for stabbing 16-year-old Lewis multiple times with a pair of scissors.

Prosecutors said Lewis could have survived a wound which punctured her lung if Schwander had sought help.

Hundreds of flyers for the missing Traverse City High School student were circulated in the community, posted on front doors, telephone poles and at area businesses in the days to follow, and turned up tips but no arrest.

That changed when Schwander, who'd previously been given a place to stay by Lewis' parents, approached Traverse City Police to confess.

Schwander led investigators to Lewis' body June 14, 2011.

At trial, testimony revealed Lewis and Schwander on June 2, 2011, met inside an abandoned warehouse near Woodmere Avenue in Traverse City, where Schwander was living after being asked to leave the Lewis' family home.

Carly Lewis, according to court documents, noticed some of her family's belongings inside the warehouse, confronted Schwander, the pair argued, the argument escalated into a physical altercation ending in Lewis' death.

Judge Thomas Power sentenced Schwander to 40 to 70 years in prison, an upward departure from sentencing guidelines of 162 to 270 months, or 13.5- to 22.5 years.

Schwander appealed, the COA remanded the case back to the trial court for further proceedings, stating the judge failed to explain the extent of the departure.

Power reduced Schwander's sentence to 38 years, the COA again ruled no explanation was forthcoming for this sentence, which was also a departure from guidelines.

The COA in 2013 vacated Schwander's sentence — but not his second-degree murder conviction — and ordered Schwander be resentenced by a different judge.

On a second remand, Judge Phillip Rodgers reinstated Schwander's original sentence of 40 to 70 years.

Schwander appealed, the COA held the trial court again failed to "articulate the substantial and compelling reasons that justified the extent of the departure" and vacated Schwander's sentence for a second time.

The COA in 2015 remanded the case back to 13th Circuit Court, requiring yet a third judge to levy Schwander's sentence.

Attorneys with Grand Traverse County Prosecutor's office sought to appeal that decision to the Michigan Supreme Court. Before the court ruled on that request, the state Supreme Court decided two other cases which had bearing on the Schwander sentencing.

In People v. Lockridge, the state Supreme Court ruled in 2015 sentencing guidelines weren't mandatory but rather, advisory. In People v. Steanhouse the state Supreme Court clarified the reasonableness review in 2017, ruling it requires determining whether a trial court abused its discretion by violating the proportionality that forms the basis of state sentencing guidelines.

Instead of granting Moeggenberg's request to appeal the COA's decision to vacate, for the second time, Schwander's sentence, the state Supreme Court in 2017, remanded the case to the Court of Appeals for reconsideration.

The case was assigned to 13th Circuit Court Judge Kevin Elsenheimer, who on Feb. 28, 2020 sentenced Schwander to 33 to 50 years in prison, which again exceeded guidelines, though spent several minutes explaining his reasoning, as previously reported.

"He allowed Carly to gasp for breath with blood foaming at her mouth as she slowly suffocated," Elsenheimer said. "This shows a dramatic and depraved indifference for human life. I have serious concerns for his potential for rehabilitation."

Schwander appealed, arguing both ineffective assistance of counsel and that the trial court erred by, again, failing to articulate reasoning behind a sentence which departed from state guidelines.

Two COA panel judges, Christopher M. Murray and James Robert Redford, disagreed and affirmed Elsenheimer's sentence of Schwander.

A third COA judge, Colleen A. O'Brien, concurred with portions of the majority opinion, but did not agree Elsenheimer had adequately explained the extent to which the judge departed from guidelines.

Elsenheimer said, at sentencing, a juvenile first-degree-murder defendant in Michigan could not be sentenced to more than 60 years, he believed a 50-year maximum was appropriate for a second-degree conviction and the sentence he levied was less than that and allowed under the guidelines.

O'Brien did not agree.

"This was the trial court's fourth opportunity to explain the extent of the departure it was imposing, and this single sentence was insufficient to accomplish that task," O'Brien wrote, in her Oct. 6 dissent.

Schwander is currently lodged in the Gus Harrison Correctional facility in Adrian, with the Michigan Department of Corrections listing his earliest release date as June 14, 2044.