People v. Hyatt

App 368 316 Mich 368 v HYATT PEOPLE 18, 2016, Lansing. May Decided Docket No. 325741. Submitted sought. 21, 2016, appeal July at 9:10 a.m. Leave jury following Kenya Hyatt trial the Genesee was convicted A. 750.316(l)(b), felony murder, first-degree MCL Court of Circuit 750.529, robbery, armed conspiracy MCL rob- to commit armed during 750.529, bery, possession firearm and of a MCL 750.227b(l). years felony, Defendant was 17 of a MCL commission Fullerton, J., court, Judith A. of the crimes. The old at the time prison possibility of to life in without sentenced defendant ap- first-degree Defendant murder conviction. for the appeal Appeals defendant’s pealed, the Court of consolidated and Perkins, unpub- People appeals v of his codefendants. with the April Appeals, 2016 entered order of the Court of lished 323741). (Docket 323454, 323876, published opinion In a Nos. C.J., January 19,2016, Appeals, the Court released Talbot, Alabama, JJ., that Miller v F. concluded and K. Kelly, Cavanagh, (2012), jury require that a determine US 460 did not life-without-parole eligibility for a offender’s People v in MCL 769.25. scheme set forth under the (2016). Perkins, App Court asserted The Perkins 314 Mich Skinner, (2015), incorrectly App People was v 312 Mich defendant it concluded that before decided to the extent sentence, jury, judge, may not a receive a hearing required at the Miller was to be the decision-maker noted the conflict with Skinner MCL 769.25. The Perkins Court 7.215(J)(2) compelled pursuant that it was to MCR stated resentencing that a could remand for so follow Skinner and of life in should receive a sentence determine whether defendant Appeals parole. possibility The Court of prison special panel the conflict be convened to resolve ordered that a IV(C) opinion. Part of the Perkins with Skinner and vacated (2016). Appeals Perkins, People The Court of v consolidating appeal with defendant’s vacated its earlier order proceed appeal to codefendants to allow defendant’s that of his panel. special before special panel, Appeals On consideration held.-. juveniles culpability greater 1. Because have less and a reform, capacity they constitutionally are different from purposes sentencing. Specifically, adults for lack maturity underdeveloped an responsibility, and have sense of they negative are more vulnerable to influences and outside pressures, they environment, have limited control over their and adult’s; therefore, their character as is not well-formed an as a

juvenile youth offender’s and those attendant characteristics of youth juvenile must be considered when a is sentenced. The recognized Eighth Miller Court that the Amendment bans the penalty life-without-parole death for and that a sen- juveniles, may penalty tence for which is the harshest that be imposed juvenile, being on a was like sentenced to the death penalty. reason, For that the Miller concluded Court that the Eighth right against punishment, disproportionate Amendment’s Const, VIII, mandatory life-without-parole US Am bars sentences juvenile prevents for offenders homicide it cases because sentencing considering juvenile’s youthfulness, court from culpability, potential diminished and increased for reform. Al- though impose categorical the Court did not a ban on life-without- parole juveniles, imposing sentences that it stated that great difficulty sentence would unusual be because of the distinguishing early age juvenile at that between the offender yet immaturity whose crime unfortunate reflects transient and juvenile irreparable the rare offender whose crime reflects cor- ruption. Miller, however, suggest did not a that defendant has the right jury to a determination of a sentence. Instead, simply required Miller held that the Amendment protections sentencing a framework of to ensure that if a court imposed life-without-parole juvenile offender, a sentence on a proportionate individualized sentence would be to the offender sentencing and the offense. The considerations set forth in Miller sentencing mitigate through punishment are that factors consid- juvenile age, eration of the offender’s elements that must be not punishment found before a more severe is authorized. Louisiana, _; Montgomery 2. In 577 US 136 S Ct 718 (2016), Supreme the United States that Court concluded Miller applied retroactively and all admonished that for but the rarest of irreparable corruption perma- children whose crimes reflect incorrigibility, prison nent a sentence of life in without the possibility disproportionate would a sentence. While rule, the Court that concluded Miller was a it substantive also Mich component requires procedural holding that had a that the noted youth sentencing offender’s a court to consider determining that life without before attendant characteristics Supreme in Mont- The proportionate sentence. parole is a require courts to acknowledged did not trial gomery that Miller “incorrigibility” but findings regarding a child’s fact make disproportionate emphasized in order to avoid that Amendment, Eight on states it was incumbent in violation of guarantee of develop procedures enforce Miller’s substantive possi- facing sentencing offenders individualized bility parole. of life involving of the the Sixth Amendment cases 3. In a line of Apprendi began v New with United States Constitution Alleyne (2000), v United Jersey, and concluded 530 US (2013), _; States States, the United 133 S Ct 2151 conviction, any prior fact that other than Court held ceiling statutory criminal or of a floor increases either may impose beyond that which court defendant’s jury’s verdict or solely in the of facts reflected on the basis to a must be submitted the defendant admitted long beyond as the proved doubt. As a reasonable statutorily prescribed defendant within court sentenced the factors, rather than as limits, any functioned as facts aggravated The touchstone for determin- offense. of an elements by jury beyond a reasonable ing found a fact must he whether “ingredient” an “element” or the fact constitutes doubt is whether By of the charged a fact is an element definition of the offense. jury the the if it increases offense and must be submitted legally prescribed. punishment is otherwise above what (2002), Arizona, Ring Beginning 536 US 584 with v 4. _; Florida, S Ct 616 culminating Hurst v with Apprendi and (2016), extended the United States respective in Arizona and ultimately the statutes concluded that although the because the Sixth Amendment Florida violated adult statutory of which the for the homicide offense maximum penalty, a sentenc- the death convicted authorized defendant was penalty of only impose on the basis ing the death court could words, verdict; jury’s the death findings beyond in other the fact-finding regarding judicial penalty available but for was not aggravating that had not been submitted factors certain However, Apprendi beyond doubt. a reasonable determination Instead, fact-finding. judicial prohibit progeny not and its do by range authorized judge acting of within the facts and may find his or her discretion—-and statute exercise consider factors related to the offense and the offender—without violating the reasoning Sixth Amendment. Because the of that line of cases addressed the intersection of Amendment jury entitlements, considerations and Sixth Amendment that line provided analysis of cases relevant to this case. response 5. In juve- to Miller’s directive about individualized sentencing, Legislature nile enacted MCL 769.25. MCL 769.25(2)provides offenses, that for certain enumerated homicide prosecuting attorney may move to sentence a defendant who years age was less than 18 of at the time he or she committed the prison possibility parole. offense to life in without the If the 769.25(4) prosecuting attorney motion, does not file the MCL (9) require years court to sentence the to a term of years with a maximum of not more than 60 and a minimum of not years years. less than 25 or prosecuting more than 40 If the attorney seeking sentence, does file a motion 769.25(6) however, requires MCL hearing the court to conduct a part sentencing process. on the motion as hearing, of the At the the trial court may must consider the factors listed in Miller and any decision, including consider other criteria relevant to its juvenile’s 769.25(7), record while incarcerated. Under MCL specify aggravating mitigating court must on the record the by circumstances considered the court and the court’s reasons supporting imposed. may the sentence The court consider evi- presented together any presented dence at trial evidence sentencing hearing. MCL 769.25 does not violate the Sixth statutory Amendment because it does not alter the maximum may imposed solely jury’s sentence that on the basis of the prison possibility parole—and verdict—-lifein without the does statutory depen- not make of that maximum sentence any particular finding dent on of fact court. years MCL 769.25 does not create a default sentence of a term of instances; instead, prosecuting all the statute allows the attorney to file a motion to seek the maximum sentence of life possibility parole, without the and the trial court has discretion impose up statutory a sentence to that maximum. The statute’s requirements required by mirror that which is Miller— sentencing. individualized Miller, 6. The individualized mandate set forth in incorporated 769.25, as MCL does not violate the Sixth precedent Apprendi progeny. Amendment and its The MCL sentencing 769.25 scheme is different from those at issue Apprendi progeny prosecuting and its because it allows the attorney juvenile up to file a motion to sentence the defendant Mich by jury’s prison penalty maximum allowed the verdict—lifein the parole; possibility without the it does not alter that maximum court, by sentencing are found sentence if certain factors 769.25, judge, iaApprendi. was the concern Under MCL a which jury, impose a not a must determine whether to life-without- term-of-years parole prosecuting or a sentence. The sentence attorney’s trigger finding may motion does not a factual Eighth the maximum sentence instead initiates the increase but protections sentencing Miller demands. The court’s Amendment 769.25(6) the Miller factors under MCL does not consideration of mitigating aggravate punishment but instead acts as a means of punishment sentencing judge it because acts to caution imposing against the maximum authorized juvenile jury’s verdict unless the defendant is the rare individual irreparable corruption. whose crime reflects The Miller factors act mitigating juvenile a under as a means of defendant’s sentence sentencing requires it the MCL 769.25 scheme because sentencing deciding court to consider those factors when whether impose life-without-parole sentence. prior panel 7. The reached the correct conclusion in this case. implicates right Miller MCL to a trial Neither nor 769.25 Rather, Apprendi progeny. implements under and its MCL 769.25 Eighth protections establishing proce- Miller’s Amendment protecting juvenile Eighth dural framework for offender’s 769.25(6) (7) rights sentencing. Amendment MCL do not require judicial fact-finding penalty that increases the maximum convicted of certain homicide offenses. The MCL statutory 769.25 scheme does not make of a life- without-parole contingent any particular finding. on 769.25, attorney prosecuting requisite Under MCL if the files the motion, juvenile the maximum sentence for a offender is life sentence, parole, imposing sentencing and when required any particular making court is not to find fact before that decision. juvenile case-by-case 8. When defendant aon 769.25(6), analysis begin basis under MCL a court must its understanding parole appropriate only that life without is prison possibility rare cases. A sentence of life in without the parole juvenile’s violates the Amendment when a crime yet immaturity irrepa- reflects unfortunate transient instead of corruption. rable The court must undertake a search- ing inquiry particular juvenile, particular into the as well as the offense, truly to determine whether the is the rare constitutionally propor- for whom life without People v approach required tionate. This is because it is difficult for even court, psychologist, a trained let alone a to make a regarding juvenile’s capacity definitive determination a for re- form. appellate applies 9. An court a three-fold standard when

reviewing juvenile prison a in offender’s sentence of life without possibility parole: findings a trial court’s of fact are error, questions novo, reviewed for clear of law are reviewed de regarding and the trial court’s ultimate decision the sentence imposed Imposition is reviewed for an abuse of discretion. of a life-without-parole juveniles requires heightened sentence for a degree appellate scrutiny determining when whether the proportionate particular juvenile give sentence is to a offender.To Supreme judicial regarding effect to our Court’s decision sentenc- Milbourn, (1990), ing Mich and the United Miller, meaningful appellate States direction in Court’s requires reviewing review court to remain mindful that life may parole punishment imposed is the maximum that be juvenile life-without-parole aon offender and that of a juvenile inherently suspect. appel- sentence on a offender is An understanding late court must review the record with the that likely not, disproportionate; may more than the sentence is it not simply rubber-stamp the trial court’s sentence because that only is available the most serious and extreme life-without-parole juvenile circumstances. A sentence for a of- imposed may fender under MCL 769.25 constitute an abuse ofthe sentencing court’s discretion if the court fails to consider a significant weight, gives relevant that have received factor should significant factor, weight improper to an or irrelevant or considers only appropriate factors but nevertheless commits a clear error of judgment by arriving sentence lies outside the limited case, range of choice dictated the facts of the case. In this by failing trial to court erred as a matter of law consider regarding rarity Miller directive with which a life-without- parole imposed. should While the trial focused be court factors, warnings gave on the Miller it no credence to Miller’s life-without-parole only imposed the rare sentence should be on testimony juvenile by psychologist offender.The court’s focus on change years prognosis that defendant’s in the next five was improper poor was because Miller held that a proportionate juvenile irrepara- for the who is sentence would be bly corrupt incapable change, incapable one who not is change years. within a certain number of resentencing. Sentence vacated and case remanded for J., P.J., joined by concurring, sepa- wrote Beckering, Shapiro, rately express panel— to concern that the issue the conflict before judge juvenile whether a or a must determine whether a should sentenced to life without under MCL 769.25— incorrectly presumes permissible Michigan’s that it is under Con- stitution, 1963, 16, impose life-without-parole § Const art juvenile addressed, Judge sentence on a offender.If the issue were Beckering given difficulty would conclude that the inherent reliably assessing still-developing irreparably whether a corrupt, case-by-case sentencing scheme set forth in MCL imprecise pass Michigan 769.25 is too muster under the Consti- increasing knowledge regarding tution. There is scientific recognition human brain and that a is different from an culpability greater adult because of his or her diminished and capacity youth for reform. The characteristics of make a determi- irreparable corruption permanent incorrigibility nation of or diffi- characteristics, sentencing cult. Because of a these court is to a degree juvenile large guessing capable whether a is of reform on widely recognized the basis of information that is as unreliable given malleability juvenile’s still-developing the of a brain. If imposition life-without-parole permitted, of sentences is to be like cases, penalty hearing in death when a court conducts to decide juvenile prison whether to sentence a defendant to life in without possibility juvenile’s parole, the of the defense team should include attorneys, mitigation specialist, investigator two and an determining juvenile reduce the difficulties inherent in whether a irreparably corrupt. offender is J., joined by JJ., M. J. Kelly concurred in Meter, Riordan, I, II, majority opinion Parts and III of the but would not have resentencing; vacated defendant’s sentence and remanded for the constitutional, sentencing procedure was and the sentence was proportionate surrounding to the circumstances the offense and offender. — — — — 1. Constitutional Law Juveniles Homicide Sentences Life With- Mitigating — out Parole Consideration of Factors. Eighth imposition The Amendment allows the of an individualized sentence homicide cases in the rare situation juvenile irreparable corruption; aof whose crime reflects maturity underdeveloped responsibility, lack and have an sense of they negative are more vulnerable influences and outside pressures, they environment, have limited control over their adult; therefore, their character is not as well-formed as that of an juvenile youth offender’s and those attendant characteristics of youth, including culpability potential diminished and increased reform, are relevant to a court’s determination of whether a juvenile particular irrepa- is rare offender whose crime reflects corruption; Eighth requires rable Amendment a framework of protections imposes to ensure that if a court a life- offender, without-parole juvenile sentence on a the individualized offense; proportionate sentence will be to the offender and the 769.25(6) required by considerations MCL are sentenc- ing mitigate punishment through factors that consideration of the age, offender’s not elements that must be found before authorized; prison more severe a sentence of life in possibility without the of violates the Amendment juvenile’s yet when a crime reflects unfortunate transient imma- (US VIII). turity irreparable corruption Const, instead of Am — — — — 2. Constitutional Law Juveniles Homicide Sentences Life With- Judge— out Parole Decides Sentence. 769.25(2) provides MCL that for certain enumerated homicide offenses, prosecuting attorney may move to sentence a defen- years age dant who than was less at the time he or she prison possibility committed the offense to life in parole; prosecuting attorney motion, if the does not file the MCL 769.25(4) (9) require the court to sentence the to a years years term of a maximum of not more than 60 and a years years; minimum than of not less or more than 40 if the prosecuting attorney seeking does file a motion a life-without- 769.25(6) parole sentence, however, requires MCL the court to hearing part sentencing process; conduct a on the as motion MCL 769.25 does not violate the Sixth Amendment because it statutory may does not alter the maximum imposed solely jury’s prison on basis of the verdict—life in possibility parole—and without the does not make statutory dependent any particular ofthat maximum sentence on finding court; 769.25, of fact under MCL judge, jury, impose not a must determine whether to a life- term-of-years without-parole sentence or a sentence. — 3. Sentences—Juveniles—Homicide—Life Without Parole Standard of Heightened — — Proportionality Scrutiny. Review appellate apply An court must a three-fold standard when review- ing prison offender’s sentence of life in without the possibility parole: findings of a trial court’s offact are reviewed for error, novo, questions clear are de and the trial law reviewed regarding imposed court’s ultimate decision the sentence is discretion; imposition an reviewed for abuse of life-without- heightened degree parole requires sentence for 376 368 scrutiny appellate determining when whether the sentence is proportionate particular juvenile offender; meaningful appel- to a requires reviewing late review court to remain mindful that of a sentence on a inherently suspect; appellate offender is an court must review the understanding likely not, record with the that more than disproportionate; may simply rubber-stamp sentence is it not trial court’s sentence because that available only the most serious and extreme circumstances. Schuette, Attorney General, Bill Aaron D. Lind- strom, General, Solicitor Leyton, David S. Prosecuting Attorney, and Michael A. and Joseph Sawka, Tesner F. Prosecuting Assistant for the Attorneys, people. Ronald D. Ambrose defendant. SHAPIRO, P.J., Before: and MARKEY, METER, BECKERING, M. J. JJ.

Stephens, Kelly, Riordan, BECKERING, J. 7.215(J), Pursuant to MCR this Court convened a special conflict panel resolve the conflict between the previous opinion issued in this case in Perkins, 140; v 314 Mich App 885 NW2d 900 (2016),1 and the decision issued in People Skinner, v (2015). 15; Mich App NW2d The issue involves whether a juvenile, whom the prosecution seeks to subject to a sentence life without parole under MCL 769.25, is entitled under the Sixth Amendment of the United States Constitution to have a determine whether life is warranted. As evidenced by the existence special of this conflict panel, recog- we nize that this is a difficult issue. Also not lost on this defendant, involving Kenya Hyatt, The initially instant matter was consolidated with Docket Nos. 323454 but this Court has since, motion, previous consolidating on its own vacated its order Hyatt’s proceed cases to allow defendant case to on its own before this special panel. People Perkins, unpublished conflict order of the Court of (Docket Appeals, April 26, 323454, 323876, entered Nos. 325741). is the panel understanding juveniles who commit a offense, heinous while undoubtedly deserving of punish- ment, are categorically culpable less than their adult and are counterparts less of the deserving maximum available under the law. As the United States Court has unmistakably clear, made it only truly juvenile is rare who will be deserving the harshest penalty available under the laws of this state, and a life-without-parole sentence is an unconsti- penalty tutional for all but those whose crimes irreparable reason, reflect For corruption. this while we judge, conclude that a not a jury, is to make this determination, the sentencing judge must honor the mandate that was made abundantly clear Miller v Alabama, 460; 2455; 132 CtS 183 L Ed 2d 407 (2012), and other recent Amendment caselaw: a sentence of life without parole only to be reserved for juvenile the rarest of offenders imposing so as to avoid an unconstitutionally disproportionate life-without- transiently sentence on a immature offender. necessarily This mandate only way affects not trial court is to exercise its discretion when out meting punishment, way but also the an is to appellate court review a life-without-parole sentence for a short, youth offender. In matters when it comes to sentence, and to avoid an sentencing, unconstitutional courts, our and on appeal, carefully must take this into account going exceedingly when about the difficult of determining task whether a is ir- reparably corrupt—meaning incapable of rehabilitation for the remainder of his or her life.

I. FACTS fully The facts of this case are set forth in the prior opinion and do not bear repeating, save for few App 316 Mich Opinion op the Court trial,

pertinent Following details. convicted murder, Kenya Hyatt first-degree felony defendant 750.316(l)(b), to commit armed conspiracy MCL rob- 750.529, 750.529, armed MCL bery, robbery, MCL during of a firearm the commission of a possession 750.227b(l). At a con- felony, sentencing hearing MCL 769.25(6), ducted to MCL the trial court pursuant defendant, years sentenced who was 17 old at the time offenses, possibility of the to life without murder conviction. The first-degree prior panel for the judge, reversed his sentence because the trial not a sentencer, jury, was the and because it was bound Skinner, reached by majority follow decision Perkins, Mich 314 Mich App App 15. at 165-179. Nevertheless, in the instant prior panel case noted Skinner, it would have affirmed the but sen- tence because it concluded that a not a judge, jury, was juvenile’s to determine a for a eligibility life-without- under parole sentence MCL 769.25. Id. Because it disagreed point, with Skinner on this the prior panel Skinner, declared a conflict with and the Court of special ordered a conflict convened. Appeals panel Perkins, People unpublished v order of the Court of (Docket February 12, entered Appeals, Nos. 325741). 323454, 323876, and

II. STANDARD OF REVIEW requires Resolution of the conflict this case us to construe MCL 769.25 and to examine defendant’s rights constitutional under the Sixth Amendment and the Eighth Amendment of the United States Constitu- tion. We review de novo these issues of law. v People 309, 314; Humphrey, App 877 NW2d 770 (2015) (statutory construction); Al-Shara, People v (2015) (constitu- 560, 567; Mich 876 NW2d 826 law). tional

III. ANALYSIS recognized prior panel As was Skinner and case, in this the instant case involves the confluenceof Eighth jurispru- Sixth Amendment and Amendment begin briefly touching pertinent dence. We on the Eighth Amendment caselaw.

A. RECENT EIGHTH AMENDMENT CASELAW

1. MILLER v ALABAMA Alabama, In Miller v 479; 132 S Ct (2012), 2455; L183 Ed 2d 407 the United States Court considered an Amendment challenge mandatory life-without-parole sentences offenders in homicide cases and concluded (and it) “[b]ymaking youth accompanies all that prison irrelevant to of that harshest sen parole], poses [life tence without such a scheme too great disproportionate punishment.” a risk of The emphasized unique Court that the characteristics of youth juveniles treating differently warranted from purposes sentencing. particular, adults for In draw ing past Eighth precedent Roper on Amendment Simmons, 551, 578; 1183; 543 US 125 S Ct 161 LEd 2d (2005)(imposing categorical capital punish ban on juvenile offenders), Florida, ment for all and Graham v (2010) 48, 82; 2011; 130 S Ct 176 L Ed 2d 825 (banning life-without-parole juveniles sentences for cases), juveniles nonhomicide Court noted that culpability” greater capacity have “lesser and a for constitutionally reform and thus “are different from purposes sentencing.” Miller, adults for 567 US at Specifically, explained Roper 470-471. that recognize significant gaps and Graham “three between juveniles and adults”:

First, maturity children have a lack of and an underde- veloped responsibility, leading recklessness, sense of impulsivity, Second, risk-taking. and heedless children negative are more vulnerable ... to influences and outside pressures, including family peers; they from their have limited contro ^[1] over their own environment and ability horrific, lack the to extricate themselves from third, crime-producing settings. And a child’s character is adult’s; not as well formed as an his traits are less fixed likely and his irretrievablfe] actions less to be evidence of (citations deprav[ity], quotation [Id. at 471 marks omitted; original).] alterations in noting addition to that the youth characteristics of treating juveniles differently, warranted the Court rec- ognized severity of a life-without-parole sentence for juveniles. Particularly, the Court took notice of the idea the majority in Graham “likened life pa- without role for to the death penalty itself....” Id. at Graham, 470. See also 560 US at 69-71. The Graham did majority by noting so life without parole was especially juvenile offender, harsh for a who will “almost inevitably years serve ‘more and greater percentage ” his life in than an prison Miller, adult offender.’ 475, quoting Graham, US at 560 US at 70. And given that Roper categorically banned the penalty death juvenile offenders, life became the “ulti- penalty Miller, mate for juveniles .. ..” 567 US at 475. Because Graham likened life without parole juve- niles to the death penalty, the Court reasoned that Graham made death-penalty imposed caselaw—which requirement of individualized sentencing through consideration of the record, offender’s character and along with the circumstances of the offense and other or mitigating aggravating factors—relevant to the issue at hand. Id.

In light youth of the characteristics of pertinent People Hyatt precedent, Amendment the Court concluded mandatory life-without-parole juveniles, “by preclude schemes for nature, their taking age sentencer from account of an offender’s and the wealth of characteristics and circumstances attendant to it.” Id. at 476. “And worse,” still contin- juvenile (including Court, ued the “each these two 14-year-olds) will receive the same sentence as the majority committing vast of adults similar homicide really, greater offenses—but noted, as Graham sen- tence than those adults will serve.” Id. at 477. Accord- ingly, mandatory life-without-parole the Court barred sentences offenders in homicide cases and provided a number of nonexhaustive factors2 that a imposing sentencer should consider before a life- without-parole sentence:

Mandatory life precludes for a chronological age consideration of his and its hallmark them, features—among immaturity, impetuosity, and fail- appreciate consequences. ure to prevents risks and It taking family into account the and home environment that surrounds usually him—and from which he cannot extri- dysfunctional. cate himself—no matter how brutal or It neglects offense, the circumstances of the homicide includ- ing participation the extent of his in the conduct and the way peer pressures may familial and have affected him. Indeed, ignores might it charged that he have been incompetencies convicted of a lesser offense if not for youth—for example, inability associated with his to deal police prosecutors (including plea officers or on a agreement) incapacity attorneys. or his to assist his own [Id. at 477-478.] stopped considering categorical

The Court short of ban on sentences for be- discussed, Legislature, 769.25, As will be our in MCL dubbed these the “Miller factors.” 316 Mich

382 368 Opinion Court cause issue was not before it but held that Amendment forbids of a manda- tory because it penalty “prevent [s] sentencer from taking youthfulness, account of’ the offender’s dimin- ished and increased culpability, potential for reform. Yet, imposing ban, Id. at 476. while not a categorical the Court was careful to note that because of a juve- nile’s “diminished culpability heightened capacity change, we think appropriate occasions for sentenc- ing juveniles possible to this harshest will penalty so,” uncommon.” Id. at 479. “That is especially rea- Court, soned the “because of the great difficulty we noted in Roper Graham of at this distinguishing early age between the juvenile offender whose crime yet reflects unfortunate transient immaturity, and the rare offender whose crime reflects irreparable (citations corruption.” Id. at 479-480 and quotation omitted). marks

2. MONTGOMERYv LOUISIANA The first—and most perhaps pressing—issue left in Miller’s wake was the issue of A retroactivity. number issue, of states took aim at this including this Court and the Michigan Supreme Court.3 The United States Supreme Court resolved this issue in Montgomery v Louisiana, US_; 718; 136 S Ct L193 Ed 2d 599 (2016), a case of which neither Skinner Hyatt nor had majority benefit. The ruled-—-in a holding that Carp, 440; People (2014), See v 852 NW2d 801 vacated sub (2016) (the US_; Michigan, nom Davis v 136 S Ct 1356 United Michigan Supreme States Court vacated the Court’s decision Carp light and remanded the case for further consideration in Montgomery Louisiana, US_; 718; v 136 S Ct 193 L Ed 2d 599 (2016); Michigan Supreme ultimately Carp vacated the (2016)). sentence, People Carp, defendant’s v 499 Mich 903 particular resolving not of relevance for the issue in the present applied retroactively. case—that Miller Id. at _; 136 S Ct at 736. More relevant to our discussion in Montgomery’s the instant case was admonition— prison continued from Miller—that “a lifetime in is a disproportionate sentence for all but the rarest of irreparable children, those whose crimes reflect cor- (citation ruption.” _; Id. at 136 S Ct at 726 omitted). quotation marks The Court also acknowl- edged, concluding in the context of that the in rule subject Miller was substantive and thus to retroactive application, that Miller did not forbid states from imposing life-without-parole altogether. sentences Id. at_136 However, S Ct at 734. Miller nevertheless parole barred life without “for all but the rarest of juvenile perma- offenders, those whose crimes reflect incorrigibility’; “[f]or nent reason, that Miller is no less Roper substantive than are at_; Graham.” Id. 136 CtS at 734.

Also relevant discussion, to our the Court in Mont- gomery acknowledged holding Miller, that the while procedural compo- substantive, nevertheless “has a requires nent” in that it “a sentencer to consider a juvenile youth offender’s and attendant characteristics determining parole propor- before that life without is a __; tionate sentence.” Id. at 136 S Ct at 734. This “ procedural component—a hearing ‘youth at which and its attendant characteristics’ are considered as necessary give factors”—was effect to holding parole Miller’s “substantive that life without is an excessive sentence for children whose crimes reflect immaturity.” transient at_; Id. 136 S Ct at 735. The rejecting argument Court, in an made in that acknowledged require case, that Miller did not trial findings regarding courts to make “incorrigibility.” of fact a child’s

Id. However, 136 S Ct at 735. at_;

Opinion the Court a formal impose factfinding Miller did not “[t]hat not leave States free to sentence a requirement does immaturity to life child whose crime reflects transient contrary, To the Miller established parole. under the disproportionate this __; S Ct at 735. In the Amendment.” Id. at requirements or fact- express procedural absence of Miller, set forth the Court finding requirements it was incumbent on Montgomery emphasized to enforce Miller’s sub- develop procedures states of individualized guarantee stantive facing possibility offenders of life without at_; Ct at 735. parole. Id. 136 S B. MCL 769.25—OUR RESPONSE TO MILLER to Miller’s directive about individualized response 22, which, 2014 PA sentencing, Legislature our enacted in relevant added MCL 769.25. For certain enu- part, offenses, merated homicide the statute allows the attorney to “file a motion under this sec- prosecuting offender imprisonment tion to sentence” “to for life without . . . .” MCL possibility 769.25(2). Miller, With a nod toward the statute pro- vides that:

(6) prosecuting attorney If the files a motion under (2), hearing the court conduct a on the subsection shall part sentencing process. hearing, motion as of the At the Miller the trial court shall consider the factors listed in v Alabama. ^[567] US [460]; 183 L Ed 2d 407; 132 S Ct 2455 (2012), may any consider other criteria relevant to its decision, including the individual’s record while incarcer- ated.

(7) (6), hearing At the under subsection the court shall specify aggravating mitigating on the record the circumstances considered the court and the court’s may supporting imposed. The reasons the sentence court People 385 v presented consider together any evidence at trial presented hearing. evidence the sentencing [MCL 769.25.]

However, motion by absent a the prosecuting attor- ney seeking the penalty parole, life without MCL 769.25(4), or court “[i]f the decides not to sentence the individual to imprisonment for life without parole eligibility, the court shall sentence the individual to a term of imprisonment for which the maximum term be years shall not less than 60 minimum term years shall not less than 25 or than years,” more 769.25(9). MCL

C. APPRENDI AND SIXTH AMENDMENT JURISPRUDENCE

1. APPRENDI The issue at the heart this conflict case is whether Miller—and Legislature how our has chosen to imple- ment guarantee Miller’s of individualized sentencing in MCL 769.25—runs afoul of Sixth Amendment case- concerning law a defendant’s to have a right decide those facts that increase the maximum avail- punishment. able Neither Miller nor Montgomery had occasion to address this issue. In v Carp, 496 (2014)—a 440, 490-491, 20; Mich n 852 NW2d 801 pre-Montgomery dealing retroactivity case with the Miller—our Supreme Court declined to address the we Accordingly, issue.4 must turn our attention to pertinent Sixth Amendment caselaw.

In one of the more influential this cases line of precedent, Apprendi 466, 490; New US Jersey, 2348; (2000), S Ct L 147 Ed 2d 435 the United States Court held that than the “[o]ther fact opinion Carp The later was vacated as described note 3 of this opinion. Opinion of the Court any pen- prior conviction, fact that increases the

of a statutory alty beyond prescribed maxi- for a crime the proved beyond jury, and a mum be submitted to a must pleaded Apprendi, the defendant reasonable doubt.” weapons prescribed guilty to for which the a offense years’ imprisonment. penalty range Id. at was 5 to 10 Subsequent accepting to court the 469-470. the trial plea, prosecutor filed to the term of the a motion extend imprisonment on crime” Id. at based a “hate statute. the acted 470. trial court found that defendant The purpose statute, under “with a to intimidate” the the court to enhance defendant’s which allowed years’ imprisonment. Id. to 10-20 maximum sentence at 471. agreed

The defendant’s challenge concluding Apprendi, that his sentence in to due-process guarantee the Fourteenth Amend- jury right ment as as the Sixth Amendment to well “indisputably to a trial entitle a criminal defendant every guilty [he] that element determination is charged, beyond of the crime with which he is (citation quotation Id. reasonable doubt.” at 477 original). Any omitted; fact, other marks alteration prior penalty conviction, increases than “that beyond prescribed statutory maximum a crime proved beyond jury, must be to submitted Id. at reasonable doubt.” 490. Apprendi that of the

While the Court held elements jury, it to to the was careful offense must be submitted holding suggest specify did that the in that case not impermissible judges it exercise discretion— taking relating into consideration various factors both judgment imposing a offense and offender—in within range prescribed statute. We have often noted judges country long in this have exercised discretion People Hyatt imposing this nature in statutory sentence within limits in [Id. the individual case. at 481.] sentencing judge operated Provided that a within the punishment provided by limits of as statute and did punishment, judge not increase the maximum the properly sentencing authority. exercised or his her See any id. at 482-483. In instance, such an facts found functioned factors, as mere rather than aggravated elements of an offense. id. 482-483, See al, 485-486. See 6 also LaFave et Criminal Procedure (4th ed), 26.4(h), p § 1007. Apprendi

The Court took also care to note the jurisprudence historical distinction its “between aggravation facts in facts miti- gation.” Apprendi, 530 US at 490 n 16. The former requires jury proved beyond a to the find fact a reason- mitigat- doubt, able while the latter does not. Id. As to ing explained: factors, the Court by jury support guilty murder,

If facts found verdict of judge by jury the is authorized verdict to sentence the defendant the provided to maximum sentence the escape statutory murder statute. If the can defendant by showing, example, maximum that he is a war veteran, judge then finds fact of veteran status exposing deprivation is neither the defendant to a liberty greater than that authorized the verdict accord- statute, ing judge imposing upon to nor is the the defen- greater stigma accompanying jury dant than that animating verdict alone. Core concerns burden-of-proof requirements are thus absent from such a [Id.] scheme.

2. EXPANSION OP APPRENDI years Apprendi, In the since it issued expanded “Apprendi- Court has the territorial limits oí 368 388 Opinion include, by Justice Scalia5—to land”—a term coined fact-finding ag- matters, on the judicial other among death of the gravating required factors 584, Arizona, 609; v 536 122 S Ct Ring US penalty, (2002), 2428; judicial fact-finding that L Ed 2d 556 153 máximums, see sentencing-guideline-range affected 244; Booker, 220, 226-227, 125 v 543 US United States (2005); 738; Blakely Washing- L 621 v S Ct 160 Ed 2d 296, 313; 2531; 124 L Ed 2d ton, 305, S Ct tiers which (2004), determinate under find authority not was judge, jury, given the trial sentence, an facts that a defendant elevated exposed 274-275, US Cunningham California, see (2007), 293; 856; mandatory L Ed 2d 127 S Ct Alleyne States, 570 sentences, see v United minimum 2155, 2163-2164; 2d US_; 2151, Ct 186 L Ed 133 S fines, Co v (2013),6 314 and criminal Southern Union 343, 346; 2344; L States, 567 US 132 S Ct 183 United (2012). cases, each of the Court Ed 2d 318 In these conviction, fact, prior that other than a any reiterated the beyond a crime penalty increases to maximum must be submitted a statutory See, Blakely, a proved beyond e.g., reasonable doubt. at 301. of this statu- purposes Apprendi, For a tory judge maximum “is not the maximum sentence may finding facts, after additional but impose find- may any he additional impose maximum matter ings.” purposes Id. at 303-304. It does not of the maxi- whether enhancement Apprendi finding mum on the of the sentence occurs basis 5 613; 2428; Arizona, Ring 536 122 S Ct 153 L Ed 2d 556 v US (2002) J., (Scalia, concurring). 6 statutory Alleyne, response struck to our Court guidelines—used requirement that made the use Michigan—mandatory. a defendant’s minimum sentence calculate (2015). 358, 364; People Lockridge, 498 NW2d 502 v Mich Opinion single, fact, a specified facts, specified several or on any fact: aggravating the Sixth Amendment violation is the regardless. same at Hence, Id. 305. if a pro- statute particular vides for a term of imprisonment as well as an term, enhanced a judge cannot, jury’s when the only term, verdict authorized the lower find facts that increase the maximum punishment. Cunningham, 549 US A at 288. defendant right has the to have “jury find the any existence of particular fact that the law makes punishment.” Booker, essential to his US (citation omitted). quotation marks The Court has repeatedly stressed that a “judge’s authority to wholly sentence derives jury’s from the verdict. With- out restriction, the jury would not exercise the control that the Framers Blakely, intended.” 542 US at 306.

The Supreme Court’s Sixth jurispru- Amendment dence has emphasized that the Apprendi rule was not concerned with the or label—element factor—assigned particular finding. factual Rather, it was the of the particular finding that effect is, mattered. That did the fact or facts found sentencing judge increase the statutory maximum sen- tence from that which was authorized by jury’s Booker, 231; verdict? 306; US at 542 US at Blakely, Apprendi, 530 US at Alleyne, 494. See also 570 US at (“The _; 133 S Ct at 2158 for determining touchstone whether a fact must be jury beyond found reasonable doubt is whether the fact constitutes an ‘element’ ‘ingredient’ or of the charged offense.... [A] fact byis definition an element of the offense and must jury submitted to the if it increases the punishment above what is legally prescribed.”); Cunning- otherwise (“If ham, 549 US at 290 jury’s the verdict alone does not sentence, if, instead, authorize the the judge must find an term, additional fact to the impose longer the Opinion the of satisfied.”). requirement is not A

Sixth Amendment particular law, if, an “element” it fact functions as Alleyne, penalty 570 US at the for that crime. increases _; Ct 133 S at 2155. AND RING

3. HURST Apprendi, we note extensions oí In addition to these parties pay particular which the an area of caselaw to case: the extension of the in the instant attention involving aggravating Apprendi factors rule to cases purposes imposing for of to enhance used penalty. US_; Florida, SeeHurst the death (2016);Ring, 536 US 584. 616; 193 L Ed 2d 504 S Ct imposition Although the of the cases dealt with these penalty offenders, on adult the death of Amendment the intersection schemes—and jury entitle- and Sixth Amendment considerations Ring—provide useful at issue in both Hurst and ments addressing analysis at issue for scheme in the instant case. Ring, 591, US at convicted

In felony Timothy Ring, defendant, murder for the robbery during an armored death of victim charge premeditated car, on the but deadlocked that case concerned whether the murder. The issue in jury’s of the death verdict authorized [the penalty law, Arizona under Arizona law. “Under defendant] death, to the statu- could not be sentenced penalty first-degree tory murder, unless maximum (emphasis findings Id. at 592 were made.” further added). particular, first-degree murder Arizona’s penalty impris- life of death or statute authorized onment, alty determining pen- purposes but, which judge impose, directed the trial Arizona law hearing separate sentencing to determine “conduct a 391 v [certain enumerated] the existence or nonexistence of (citation quotation . . circumstances . Id. and marks original). sentencing omitted; in alteration The scheme provided judge at issue that the trial was to determine any aggravating whether of the enumerated factors any mitigating existed, as well as circumstances, and only judge impose penalty that the could the death “if aggravating there is at circumstance least one mitigating sufficiently there are no circumstances sub- (citation leniency.” stantial to call for Id. at omitted). quotation marks Ring

The defendant contended that the Sixth required jury findings statutory Amendment on the aggravating aggravating factors. Id. at n The 597 4. required by factors Arizona law were added legislature large part Eighth state’s due to Amend- concerning imposition ment caselaw of death sen- requirement aggravating tences and the Id. factors. citing Maynard Cartwright, at 356, 362; 486 US (1988); 1853; 108 S Ct 100 L Ed 2d 372 Furman v Georgia, (1972). 238; 2726; L S Ct 33 Ed 2d 346 Supreme Ring

The Court in remarked that the aggravating addition of factors was an “element” that “constitutionally required” by was Amend- Ring, ment. 536 US at 606-607.

The Court found that Arizona’s Apprendi scheme could not be because, reconciled solely “[b]ased jury’s finding [the on the verdict defen- guilty first-degree dant] felony murder, the maxi- mum he could have received was life imprisonment,” not death. Id. at 597. See also at id. (holding that the vio- Arizona scheme lated the Sixth Amendment it because “allows sen- tencing judge, sitting jury, aggra- an find vating necessary circumstance of the Opinion the Court because, Arizona, “This so was penalty”).

death under may legally imposed” not death aggravating one factor “unless least state law doubt.” Id. at 597 reasonable beyond found exist (citation omitted; emphasis marks quotation added). the stated that the Court ReviewingApprendi, “ form, of ‘one not of but question” was “dispositive defendant’s State makes an increase a effect/ If a a contingent finding on the authorized how the State labels it— fact, fact—no matter that by jury beyond a a reasonable doubt.” must be found at In Ring, 530 US 494. quoting Apprendi, at Id. the statutory required scheme find- “effect” of the the defendant could be fact a ing aggravating of an before was greater punishment—death—than to a exposed at alone. 536 US jury’s Ring, the verdict authorized aggravating fac- Arizona’s enumerated 604. “Because equivalent of an element as the functional operate tors Amendment offense, requires the Sixth greater of a (citation a by jury.” found Id. at they omitted). marks quotation the Hurst, dealing case In another dealt with a variation on death the Court penalty, case, defendant, Ring. raised in the issue Hurst, murder. Timothy first-degree was convicted of _; Under Hurst, US 136 S Ct at 619-620. sentence that could be im- law, the maximum Florida at_; imprisonment. life Id. for the offense was posed only 620. An offender could receive death 136 S Ct at findings the trial court made additional if at_; S Ct at 620. The Florida fact. Id. following in which hybrid was proceeding proceeding render an evidentiary hearing, would first an life specifying or death without “advisory verdict” at_; Id. 136 S Ct recommendation. basis its factual Afterward, aggra- judge weigh the trial would 620. People Hyatt vating mitigating factors and then decide between sentence of life imprisonment death, or regardless of the jury’s _; recommendation. Id. at 136 CtS at 620. Further, imposes death, “[i]f the court it must set forth in writing its findings upon which the sentence of death (citation _; based.” Id. at 136 S Ct at 620 omitted). quotation marks

The United States Court concluded that Florida’s scheme could not be reconciled with Ring and Id. Apprendi. at_; 136 S atCt 621. The Court recited its holding Ring that capital “Arizona’s sentencing scheme violated Apprendis rule because the State allowed judge to find the facts necessary sentence a at_; defendant to death.” Id. 136 S Ct at 621, citing Ring, US at 591. This analysis, same concluded, applied Hurst and demonstrated infirmity constitutional of the defendant’s death Hurst, sentence in that case. at_; 136 S Ct at 621-622. “Like Arizona at the ofRing, time Florida does not the to require jury make the critical findings neces-

sary impose the penalty. Rather, death Florida re- quires a judge to find ; these facts.” Id. at 136 S atCt added). 622 (emphasis That sentencing Florida’s scheme an advisory included jury component verdict—a not in present Arizona’s scheme—did change not the analysis the advisory because did not jury specific make findings factual and its recommendation was not bind- ing at_; on the judge. Id. 136 Ct at S 622. The Court concluded: Timothy Ring, punishment

As the maximum Timothy any judge- Hurst could have received without findings prison parole. made was life in As with Ring, a judge punishment increased Hurst’s authorized factfinding. on her light Ring, based own In hold we [Id. Hurst’s sentence violates the Sixth Amendment. at _; 622.] 136 S Ct at Opinion Hurst, as in short, Sixth Amendment violation statutory maximum that—although the Ring, in was of which the defendant was offense homicide could penalty—a judge the death convicted authorized findings the basis of penalty the death on only impose not penalty The was beyond jury’s verdict. death cer- judicial fact-findings regarding but for available factors that had not been submitted tain aggravating beyond a reasonable doubt. a determination BAR ALL FACT-FINDING 4. DOES NOT JUDICIAL APPRENDI we and its Apprendi progeny, For that was said all in those cases holding Court’s note that judicial all prohibition against read as a must not be Indeed, Ap- the rules from fact-finding sentencing. at not for the progeny proposition its do stand prendi and are judges permitted a scheme which to exercise broad discretion.. . within “genuinely unconstitutional; rather, as articu range” statutory that such Cunningham, “everyone agrees” lated in Cun no Sixth Amendment shoal.” scheme “encounters (citation marks quotation 549 US at 294 ningham, added). See omitted; original; emphasis alteration (“Our at _; S Ct also Alleyne, any mean that fact that influences ruling today does not by jury. long We have judicial discretion must be found discretion, informed recognized that broad does not violate the Sixth by judicial factfinding, Amendment.”). Therefore, acting within judge may exer authorized statute range find facts and consider cise his or her discretion—and relating to offense and the offender—without factors at_; Amendment. Ct at Sixth Id. 136 S violating the As in 2163, US at 481. citing Apprendi, explained 2163: at _; US 133 S Ct at Alleyne, 570 Opinion of the any [W]ithin the limits of discretion as to the allowed, punishment may which the law have judge, pronounces sentence, when may he by suffer his discretion to be influenced matter aggravation mitigation, shown or not cov- by allegations ered [1 indictment. J. (2d

Bishop, ed, 1872),] Criminal Procedure 50 85, 54. at §

[Establishing punishment what is available law and setting specific within the bounds that the prescribed things. law has are Apprendi, two different (Thomas, J., [530 US] at 120 S concurring). Ct 2348 [Quotation omitted; marks first third alteration in original.]

D. SKINNER AND HYATT backdrop mind, With that we arrive at the basis prior opinion for this conflict:Skinner and the in this case.

1. SKINNER This Court first Skinner, encountered issue in App majority, case, 15. In after a careful and caselaw, detailed discussion ofthe relevant arrived at the conclusionthat a defendant is entitled to have a be the decision-maker at the so-called hearing required by majority Miller MCL 769.25. The “findings” concluded that MCL mandated 769.25 findings that those constituted elements of the offense. majority Skinner, 312 Mich The at 42-43. reasoned that MCL 769.25 a “default” established sentence of a years first-degree term convicted of prosecution, because, murder absent a motion term-of-years required impose the trial court was 769.25(4). citing 43-44, sentence. Id. MCL This premised, conclusion to a “default” as sentence was App 368 316 Mich 396 Opinion of the Court Carp, in which opinion Court’s on our part, term, “default,” and concluded same used the a establishes 769.25 now “MCL default murder first-degree who commit for individuals range Skinner, Mich App years age.” of turning before to the According Mich at 458. 44, Carp, at quoting a life- Skinner, 769.25 conditioned MCL majority two a offender on sentence without-parole (1) by prosecuting the of a motion filing the things: (2) court’s the trial the sentence attorney impose any other criteria factors and on the Miller findings on 45, Skinner, App Mich at to its decision. relevant 769.25(6). scheme, ac- This MCL quoting citing sen- authorized an enhanced majority, the cording to the trial court findings by factual the basis of tence on Apprendi the rule established and ran afoul of at 45. Skinner, App 312 Mich progeny. its 769.25(6) by “ex- Clearly, findings mandated MCL the greater punishment than that a pose defendant to the verdict,” Apprendi, 530 US by jury’s guilty authorized equivalent” 494, act as the “functional at and therefore jury proved to a greater offense that must elements of a doubt, An Ring, 536 US at 609. beyond a reasonable based MCL 769.25 is not punishment under enhanced convictions, prior on facts admitted merely on defendant’s parcel defendant, part and on facts that are or jury during guilt that were submitted to elements Rather, Apprendi, 530 US proceeding. like in phase of the threatened defendant case the state at this sentence—following term-of-years pains—i.e., certain with addi- first-degree murder and her conviction addi- parole—following pains—i.e., life without tional “Merely using the label findings by the trial court. tional surely does the latter enhancement’ to describe ‘sentence treating them differ- provide principled basis for not subjects plainly ently.” effect of MCL 769.25 Id. The judicially punishment on the basis to harsher defendant People y Hyatt found facts in contravention of the Sixth Amendment. [Skinner, App 46.] at strong Judge rejected dissent, the idea SAWYER required findings that MCL 769.25 of fact that in- creased the maximum sentence authorized statute. Skinner, 312 Mich (SAWYER, J., 63-64 dissent- ing). Judge equated requirements of MCL SAWYER fact-finding factors, 769.25 to rather than impose greater authorized trial court statutory juve- “[T]he than maximum. Id. require any particular judicial nile lifer law does not fact-finding potential to increase the sentence from a years parole.” term of to life without Id. at 70. MCL 769.25(6), by Judge as summarized SAWYER, require trial hearing

does the court to conduct a before it may impose of life without on a requires it offender. And further that the trial court Miller, any “consider” the factors listed as well as other criteria the trial court deems relevant its decision. MCL 769.25(7) requires specify then that “the court shall on the aggravating mitigating the record and circumstances con- by supporting court sidered and the court’s reasons imposed.” the sentence But nowhere does the statute require any particular finding court make trial impose it is authorized to a sentence fact before of life Rather, parole. conducting hearing and after considering presented hearing the evidence at the as well trial, presented as evidence at the trial court makes its decision and must state on the record the reasons Carp, decision. As our Court noted in this process sentencing” proce- for the allows “individualized by procedure presum- dures established Miller. This also ably meaningful appellate allows for more review the [Skinner, (SAWYER, J., App sentence. dis- (citation added).] senting) omitted; emphasis Judge Likewise, SAWYER concluded that Miller itself require any particular did not fact to be found before a App Mich Opinion the Court parole. impose Id. life without a sentence of court could ensuring framework for Rather, it established at 74. sen- an individualized would receive Id. tence.

2. HYATT prior appeal matter, defendant in the instant In the argued Hyatt entitled to have that he was with Skinner. in accordance his sentence determine recognized panel Skinner, but that it was bound The wrongly “[W]e de- was stated, that Skinner believe panel Like the at 165. Perkins, 314 Mich cided.” lengthy engaged prior panel and in a Skinner, the analysis Miller, Sixth 769.25, of MCL detailed Ring, Apprendi, Booker, as caselaw such Amendment Alleyne. Blakely, Cunningham, Id. at 165-176. agreed analysis, panel After this detailed prior Judge is, That in Skinner. dissent Sawyer’s panel run afoul of 769.25 “doesnot that MCL believed jurisprudence] [Sixth did Amendment because The sentence. receive an enhanced not already determined not not determine facts court did jury’s Moreover, unlike Id. at 176. verdict.” Alleyne, Cunningham, Ring, Blakely, Apprendi, “nothing premised a court’s 769.25 in MCL imprisonment authority impose with- term of life Hyatt’s jury finding any specific parole on out Hyatt first-degree convicting failed to consider felony undisputedly prosecutor the murder. Because seeking properly life-without- motion filed a 25(4) Hyatt, §§ parole the mandates for sentence (9) years apply.” regarding not Id. term of did the plain “[T]he Finally, panel reasoned, the 177-178. at require language court the trial the statute did not aggravating findings concerning any or miti- to make Hyatt gating Hyatt factors before the court could parole. Consequently, life without the life-without- statutory sentence in this came the case within maximum . . . Id. at 178. prior panel

The remanded the matter for resentenc- ing, “[w]ere that, Skinner, but stated it not we affirm would court’s decision to sen- imprisonment possibil- tence to life ity parole.” Id. at 179.

E. RESOLUTION OP THE CONFLICT prior panel’s analysis holdWe that the in this case implicates was correct. Neither Miller MCL nor 769.25 right Apprendi prog to a trial under and its eny. by implementing Rather, Miller’s Amend protections through ment its enactment of MCL Legislature simply proce 769.25, the established protecting juvenile’s Eighth dural framework for rights sentencing. sentencing pro Amendment at The at cedure issue in this case not does involve the concern Apprendi, that finding was issue 530 US at 490—fact- juve penalty that increases the maximum words, nile homicide offenders. In other the instant finding particular case is not one in which the of a fact penalty. increases maximum Nor does the instant statutory impo involve a case scheme that makes the parole contingent any particu sition of life without on finding. statutory 769.25, lar MCL Under maxi juvenile offenders—assuming requisite mum for has motion been filed—is a sen imposing tence, sentence, and when that rare sentencing authority any finding is not tasked with particular making fact A before its decision. careful compels examination of both Miller and MCL 769.25 this result. Mich the Su- outset, reject arguments we

theAt read to can be in Miller decision Court’s preme the Amendment; reject also we the Sixth implicate to right the suggests Miller the decision idea that life on the sentence determination have a to note important it is respect, this parole. without of a imposition in Miller: concern the Court’s The offenders. on sentence disproportionate was, for purposes sentence a disproportionate risk of a under Amendment, unacceptable Eighth of the for sentences life-without-parole mandatory system of Miller, (“By US at 479 offenses. homicide certain it) (and irrelevant accompanies all that youth making sentence, such a prison that harshest to disproportionate risk of great too poses scheme concern, the Court this To alleviate punishment.”). Eighth juvenile’s protecting a framework created punish- against disproportionate right Amendment case, this framework present to our Important ment. life-without-parole of a the imposition not make does fact. finding of a certain contingent upon sentence require did not in Miller decision The Court’s youth an offender’s to consider authority sentencing Rather, penalty. the available aggravating before mandate sentencing an individualized imposed offenses. of homicide convicted offenders to ensure required was Individualized pen- maximum aggravate not to proportionality, au- Hence, law. under the alty available a life- impose under Miller free thority remains jury’s solely on based without-parole protec- that a framework holds simply Miller verdict. must be Amendment required tions of the maxi- the imposition ensure that implemented propor- parole—is penalty—life mum available of- particular and the offender the particular tionate to Opinion op the Court remodeling performed short, fense. In that Miller on sentences for did not ceiling—or floor, touch the for that matter—of the available sentence for homicide offenders. support interpretation In of our of demands, Miller’s Supreme we note the Court’s discussion Miller in of Montgomery.7Notably, Montgomery, at __; in US 577 735, 136 S Ct at albeit not within the of a context Sixth expressly discussion, Amendment recognized require that its decision in Miller did not a sentencing authority finding to make a fact on a incorrigibility imposing child’s parole before a life-without- Montgomery, “[t]hat in

sentence. As stated impose factfinding requirement Miller did not a formal [regarding incorrigibility] not does leave States free to sentence a child whose reflects crime transient imma turity parole. contrary, to life without To the Miller punishment disproportionate this established that under the Id. at _; Amendment.” 136 S Ct at Montgomery’s 735. accordance with conclusion demands, about Miller’s we decline to conclude that implicates Miller a defendant’s Sixth Amendment right jury to a trial.8 7 Again, panel prior panel neither the in Skinner nor the in this case Montgomery analysis. had the benefit of the 8 Court, Although they binding not are on this we note that two of the only cases to consider this issue in state same another reached the result regarding requires Miller whether a determination. See State v (2d Fletcher, 934, 943; 49, Cir, 1, 2014); App 149 So 3d La 303 October People Gutierrez, unpublished opinion of the Court of California (Docket 22, Appeal, B261989), Notably, pp issued June No. 6-7. Fletcher, rejected Appeals at So 3d the Louisiana Court of statutory purposes idea that Miller created “new maximum” for

Apprendi; further, rejected required proof Fletcher the idea that Miller sentencing authority impose anof additional before element could life-without-parole Rather, Fletcher, sentence. reasoned the court “merely youth-related hearing mitigating Miller mandates a at which Mich sentencing procedure say

This is not to any fact-finding.9 not involve Miller does envisioned missing procedure Miller is described However,the Apprendi purposes its key components progeny: in Miller’sindividualized nowhere the maximum Miller altered idea that is the mandate punishment or made offenders available contingent any punishment on fact- the finding. not hold that words, the Court did In other unless was unavailable authority In this certain facts. found any aggravating impose factors did not sense, Miller Ring, at issue that were such as those provided that a law case, Arizona 591-592; in that capi- jury’s insufficient to authorize alone was verdict required addi- a death sentence tal aggravating findings factors. In con- on certain tional merely provided certain considerations trast, Miller by a into account must be taken that imposing authority sentence—life the maximum when juvenile’s protect parole—in a order to right against disproportionate, nonindi- a Amendment 477, Miller, US at 480-481. 567 sentence. vidualized making a in presented sentencer and considered to the factors can be juvenile imposed upon a the life sentence of whether determination parole eligibility.”Id. or without be with killer should may hearing instance, requires court receive a at which a Miller For about, matters, of the homi among the circumstances other evidence Miller, US at cide, including juvenile’s in the offense. role the conflicting inevitably produce 475-476, hearing will almost 480. The role, prosecution with the the offender’s the extent of evidence about in the juvenile involvement likely seeking defendant’s maximize the to seeking juvenile minimize that role. to defendant homicide and the weigh evidence, sentencing judge conflicting tasked Faced with necessarily to make a juvenile’s will have ing in the offense role believe, i.e., a factual make evidence to about which determination finding. Opinion of the Couht implicate type Hence, Miller not does of fact- finding prohibited by Apprendi. process The described merely ensuring in Miller was a means of that the maximum sentence available under the law—lifewith parole—was particular proportionate juve out to the required by nile at issue. The considerations offender sentencing guarantee Miller’s individualized are sen tencing factors, not elements that be found must before Ap a more severe is authorized. See prendi, succinctly 482-483, 530 US at As 485-486. Alleyne, in __; stated US at 133 S Ct at jurisprudence “recognized Sixth Amendment has by judicial discretion, broad informed fact- finding, does not violate Sixth Amendment.”10 require

However,the conclusionthat does not Miller findings impose certain factual in order sentence of not, life without on a offender is dispositive itself, of the issue As the raised. Montgomery acknowledged, implementa in largely tion Miller’s directives was a matter left Montgomery, at _; states. 136 US at 735. legislative response now turn We to the at issue in this right case, MCL 769.25, to determine if the to a determination can found therein.

Careful examination MCL 769.25reveals that our Legislature statutory did not alter maximum sen- briefly Breyer’s opinion Miller, concurring We note Justice impose life-without-parole he which concluded that order to offender, finding on a there must be a the offender Miller, J., (Breyer, concurring). or intended killed to kill. 567 US 489-490 be, according Breyer, A sentence should to Justice finding. “forbid[den]” If without such Id. at this view were 490. might law, change analysis, current state of the our it Sixth Amendment particularly case, felony multiple- in this which involved murder in a However, Breyer’s adopted by situation. Justice was not offender view majority Miller, implications the and we see no Sixth Amendment in majority’s the decision in Miller. Mich on the of the solely basis may imposed

tence that verdict, did our make Legislature nor jury’s any particular on statutory dependent maximum of the that in order to provides fact. The statute finding of parole, defendant to life without sentence a an must, involving in a case attorney the prosecuting offense, seeking homicide file motion enumerated the MCL specified period. within (3). 769.25(2) files this attorney If the prosecuting on the motion, hearing trial court “shall conduct MCL sentencing process.” of the part motion as 769.25(6). court is to consider hearing, At the the trial Miller Alabama . . . and may listed in “the factors decision, criteria relevant to its any consider other individual’s record while incarcerated.” including the 769.25(6). Then, to be an appear MCL in what would sentence, the trial appellate effort to aid review of aggravating on the record the specify court “shall considered the court mitigating circumstances imposed. the sentence supporting the court’s reasons evidence at trial may presented The court consider evidence at the sentenc- together any presented 769.25(7). MCL ing hearing.” As sum, important things. MCL 769.25 does two matter, states that plainly an initial the statute the enumerated homicide statutory maximum for requi- files the prosecution offenses—in the event Any life without contention parole. site motion—is term of creates a “default”11sentence of a MCL 769.25 of the plain language in all instances years ignores Carp, suggestion that our Court declared The years a “default” sentence of a term of that MCL 769.25 created Although Carp a default in all is inaccurate. mentioned instances sentence, sentencing juvenile describing procedure it did so seeking prosecution a life-without- in the absence a motion filed parole sentence. Id. 769.25(2) plainly permits prosecut- statute. MCL the ing attorney parole upon filing life seek without the requisite of the filed, motion. Once this motion is statutory parole, maximum is life without and the trial up statutory court has discretion to sentence to that maximum. point.

This leads to our second MCL 769.25 does not imposition statutory make the of this maximum con- tingent any particular Rather, on fact. the statute requirement mirrors the tencing. ofMiller—individualized sen- away is, That MCL 769.25 does with manda- tory life-without-parole requires sentences and sought, court, trial when the maximum sentence is sentencing make the individualized determination re- quired by consistently If, Miller. with Miller’s de- sentencing judge mands, the deems life without appropriate—meaning to be that the it case before is by one of the rare cases described Miller—the trial jury’s impose court is authorized verdict to Indeed, sentence. as is the case statutory require any Miller, our scheme does not findings additional before the of a life- without-parole sentencing judge sentence. The decides impose whether to exercise his or her that discretion to statutory by considering maximum the so-calledMiller satisfy sentencing factors to Miller’s individualized prosecuting attorney sum, In mandate. when the files “ requisite ‘statutory motion, maximum’ for Apprendi purposes,” Blakely, 303, see life is parole. permitted sentence, then, This “solely on the basis in the facts reflected type verdict. . . .” Id. This scheme does Apprendi progeny. not run afoul of and its imposed sense, this scheme MCL 769.25 is different from the schemes at issue Opinion op the Court Apprendi, Blakely, Booker, and Cunningham—and that difference is of critical importance purposes of the Sixth inquiry. Amendment In particular, we note in Apprendi, 530 US at an enhanced sen- tence possible was if the prosecution filed a motion seeking such a sentence and after a hearing the trial found judge the defendant acted with a biased purpose—which was a fact not encompassed by the jury’s case, verdict. In by contrast, this MCL 769.25 allows the prosecuting attorney to file a motion to to the maximum up that is allowed by the jury’s verdict. The prosecuting attorney’s motion in the instant case is not meant to trigger factual finding that will sentence; increase the maximum instead, the motion is filed to initiate the Amendment protections demanded by Miller. argued

It is that a sentencing judge necessarily will engage in fact-finding during the Miller analysis. On this point, agree. However, we noted, as it is not that a dispositive sentencing judge makes factual find- ings. The dispositive question is whether the statute authorizes increased punishment, contingent on cer- tain factual findings. Ring, 536 US at Indeed, 602. “[a] statutory requirement judge that a make findings . . . does not mean that any specific finding is necessary for imposition of the sentence.” Fell, 554, State v 210 Ariz (2005).12 559; 115 P3d 594 MCL 769.25 does not autho- rize increased punishment, much less make such an increase contingent Instead, on any facts. the fact- finding that will inevitably occur during the Miller analysis is the kind “everyone agrees that encounters no Sixth Amendment shoal.” Cunningham, 549 US at 12Although, binding, may decisions from other states are not we persuasive authority. People Jackson, consider them as v (2011). 3; 595 n 808 NW2d 541 omitted). (citation quotation marks See also (“Our ruling Alleyne, at _; US 133 S Ct at 2163 any today not mean that fact influences does by jury. judicial discretion must be found We have sentencing long recognized discretion, in that broad factfinding, by judicial does not violate the formed Amendment.”). Any fact-finding that occurs Sixth pertain “do[es] whether the defendant has a not right legal all the to a lesser sentence—and makes judicial impingement upon the difference insofar as Blakely, 542 role of the is concerned.” traditional atUS 309. purposes, comparison we examine the sentenc-

For ing federal district courts of criminal defendants fact-finding type judicial that occurs and note the listed in 18 USC factors under 3553(a).13 regard Any fact-finding that occurs with statutory meant “to inform individual factors is Sentencing help meet the decisions and to sentencing—uniformity twin-goals of Commission’s 3553(a): Pursuant to 18 USC imposed, court, determining particular sentence to be [t]he consider— shall (1) history and circumstances ofthe offense and the the nature defendant; and characteristics of the

(2) imposed— the need for the sentence (A) offense, promote respect reflect the seriousness of the to to offense; law, just punishment provide for the for the and to

(B) conduct; adequate deterrence to criminal to afford (C) defendant; protect public crimes of the from further to and (D) provide or the defendant with needed educational care, training, or other correctional treatment vocational medical manner!.] in the most effective proportionality,” and does not affect the maximum may imposed. Ali, sentence that United States v (CA (citation 2007) quotation 136, 3, F3d 146 n 15 omitted). sentencing guidelines marks post Like the federal mandatory -Booker,there is no or default sentence imposed under MCL 769.25 that must be unless the sentencing judge jury finds facts that the never found nor were admitted the defendant. As noted United States Court in States, Rita v United 338, 352; 551 US 2456; 127 S Ct 168 L Ed 2d 203 (2007), “[t]his Court’s Sixth Amendment cases do not automatically forbid a court to take account by jury of factual matters not determined a and to consequence.” “[t]he increase the Rather, question” Sixth Amendment concerns “whether the judge law increase defendant’s sentence forbids judge unless the (and finds facts that the did not find concede).” the offender did not Id. reject any argument

We also that MCL 769.25 is comparable to the scheme that was at issue Ring, frequently by in parties. cited case Ring, statutory provided scheme penalty imprisonment, the maximum was death or life imposition penalty, but it conditioned of the death represented pun- which an increase in the authorized findings by judge ishment, on further factual the trial during separate sentencing hearing. Id. 592. Those findings aggravating additional concerned and miti- gating circumstances. Id. at 592-593. In the instant 769.25(7) case, it is true that MCL uses the term “aggravating mitigating key circumstances.” The again, difference, once is that MCL 769.25 does not parole contingent make the of life without upon findings. only requires certain MCL 769.25 requires—individualized sentencing which Miller based on the so-called Miller factors. The Opinion of the Coukt solely jury’s defendant is—based on the verdict and the prosecuting attorney’s motion-—eligible for a life- without-parole statutory sentence, the maximum. by sum,

In all that is mandated MCL 769.25 is the sentencing required, Miller, individualized by as in stated Eighth analysis involving Amendment. The aggravate punishment; Miller instead, factors does not analysis mitigating punishment acts as a means of sentencing judge against because it acts to caution the imposing by the maximum authorized jury’s Montgomery verdict, a sentence which cautioned disproportionate majority is for “the vast Montgomery, at _; offenders . . . .” 136 S Ct at fact, 736. unless the defendant is the rare deserving penalty, analysis, of the harshest the Miller incorporated by 769.25, as MCL will have the effect of mitigating punishment. the available

The idea that Miller—and MCL 769.25 its incorporation of the “Miller factors”—sets forth a mitigation, aggravation, framework of rather than apparent from the text of the Miller decision itself. (“[O]ur Miller, See 567 US at 489 individualized judge decisions make clear that a or jury[14] opportunity mitigat must have the to consider ing imposing circumstances before the harshest added). possible penalty juveniles.”) (emphasis In Supreme deed, the Court’s decision in Miller is rife arguments concerning why juveniles with are consti Skinner, aptly panel App As noted 312 Mich ” “passing judge hardly illuminating reference ‘a or Miller is regard to the issue at hand. The issue before the Court in Miller concerns, was limited to Amendment and the Court was not weigh Hence, panel called on to in on the matter now before us. like the Skinner—and, matter, Carp, for that our Court in 496 Mich assign significance phrase “judge jury” at 491 n 20—we no to the or as it is used in Miller. tutionally why different from adults and these differ juveniles. See, ences diminish the of culpability e.g., (explaining juveniles id. are “constitution ally purposes sentencing” different from adults for because, among reasons, they other have “diminished The culpability”). problem mandatory with life- sentence, Miller, without-parole according to was that it give sentencing authority failed to the “the oppor consider tunity mitigating to circumstances before imposing possible harshest penalty juveniles” mandatory and that such a sentencing scheme vio lated the principle proportionality by forcing sentencing authority ignore to “age age-related characteristics,” i.e., those characteristics that dimin culpability juvenile, ish the of the thereby warranting a lesser sentence. Id. at 489. The Court in Miller specifically invoked the “mitigating qualities youth” in explaining why individualized sentencing necessary was when deciding impose whether possible penalty harshest for juveniles—life available (citation without Id. parole. at 476 and quotation omitted). marks This culminated in the Court an nouncing factors, the so-called Miller all of which speak mitigation and why “chronological age and its hallmark features” should be considered when juvenile. Id. at 477. Put simply, Miller required individualized as a means of mitigating the maximum penalty authorized jury’s verdict, aggravating rather than the penalty beyond So, that which set forth by too, was law.15 MCL 769.25 sets a maximum punishment—in the event the sure, however, mitigation lb be Miller made clear that was more appropriate route, emphasizing often than not the that a life-without- parole proportionate only sentence would be the rare “whose (cita irreparable Miller, corruption.” crime reflects US at 479-480 omitted). quotation tion and marks requisite prosecution files the motion—at life without sentencing judge parole and mandates that the con way mitigates, sider the Miller factors in a rather penalty. enhances, maximum than available Viewing mitigation the Miller factors as a means of suggest, however, that life not to remains the default sentence for first-degree convicted of Indeed, murder after Miller. it is doubtful squared whether that result could Miller’s inher- conclusions about constitutional infirmities mandatory life-without-parole sentencing ent juveniles. Instead, scheme for the Miller factors act as mitigation they a means the sense that must be sentencing judge considered determining when he or she is appro-

whether life without is an priate impose. sentence to today comports

Our decision with those ofnumerous considered, state and lower federal courts that have slightly contexts, albeit in different the intersection of Eighth proportionality requirements Amendment’s jury right and the Sixth Amendment to a trial. The support cases from which we draw stemmed from the United decisions in Atkins v States Court’s Virginia, 2242; L 304, 321; 536 US 122 S Ct 153 Ed 2d (2002)—concluding Eighth 335 that the Amendment imposition capital punishment barred the on defen- intellectually disabled, dants who are and Tison v Arizona, 137, 158; 1676; L 107 S Ct 95 Ed 2d (1987)—banning pen- the death (1) alty felony-murder the defendant: cases unless (2) major participant in the offense or acted with was at least a reckless indifference to human life. The Eighth cases is that when the consensus these proportionality requirement has Amendment’s barred App 316 Mich Opinion imposition of the death because of a penalty certain diminished factor or factors that suggested culpability, of whether determination those certain factors subject jury exist is not one that is to a determination. differently, Stated Amendment prohibitions are mitigating considered to be factors that act aas bar against imposing statutory maximum penalty, rather than maximum as elements that enhance the possible penalty, and the determination of whether not, those mitigating factors exist need under Ap- prendi progeny, See, and its be made a jury. e.g., (2015) Agee, 325, 364; State v 358 Or 364 P3d 971 (holding that a determination on disability intellectual is a mitigating factor that can be made aby judge and not, does under Apprendi Ring, require jury determination); Hill, 3509, 68; State v 2008 Ohio ¶ (Ohio 2008) 171, 187; Ohio 3d 894 NE2d 108 App, (rejecting the idea that the Eighth pro- Amendment’s hibition against imposing the death penalty on an intellectually required jury disabled adult determi- nation of intellectual disability because that determi- mitigated, enhanced, nation rather than the available punishment); Commonwealth v Bracey, 604 Pa (2009) 473-474; 986 A2d 128 (finding there was no right to a trial an on Atkins claim under Ring)-, Galindo, 599, 655; State v 278 Neb 774 NW2d 190 (2009) (rejecting the idea that Tison findings were “elements” of the offense even when the death penalty Nichols, was imposed); 170, 172; State v 219 Ariz (2008) P3d 207 (recognizing the Sixth Amendment does not require jury to make Tison findings, but a statutory state scheme could require as much if the legislature chose); Johnson, so v 144, State 244 SW3d 2008) (Mo, (holding that a finding intellectual disability removed the defendant from consideration penalty death and was equiva- therefore not the v lent of an factor that aggravating required a jury Grell, determination under Ring); 516, State v 212 Ariz (2006) 526-527; 135 P3d 696 (discussing mitigating factors from Atkins and Tison and concluding that right jury there is no to a trial on either set of factors under Apprendi Hill, and its v progeny); Head 277 Ga (2003) 255, 258; 587 SE2d 613 (opining that because intellectual was an disability “exemption” from the penalty, death it was a factor mitigating and not “the offense); functional of an element” equivalent of the (CA 2003) Johnson, 403, 5, re 334 F3d (stressing that a mitigating analysis disability— intellectual required by Amendment, the Eighth per Atkins—was not the functional of an element of a equivalent greater offense). (“So LaFave, 26.4(i), See also 1018-1019 pp § far, rejected lower courts have to arguments equate Eighth factors which as a matter of Amendment law are required eligibility for death with elements. The rules in Tison and Atkins have instead been treated as murder.”).16 to, of, defenses not elements capital Supreme The United States Court has denied leave in some ofthese cases, see, Nebraska, (2010), e.g., yet Galindo v 559 US 1010 but has to expressly weigh regard post-Apprendi. in on this issue With to the cases, Supreme Atkins line of the United States Court in Schriro v Smith, 6, 7; (2005), 7; L 546 US 126 S Ct 163 Ed 2d left the states implement judge to determine how to Atkins and to decide whether a or disability. mitigating should assess the factor ofintellectual We also offense, regard Supreme note that with to the offender’s role in the Bullock, 376; 689; Court in Cabana v 474 US 106 S Ct 88 L Ed 2d 704 (1986), Illinois, abrogated part grounds by Pope v 481 US on other 7; 1918; (1987), 503 n 107 S Ct 95 L Ed 2d 439 discussed Enmund Florida, 782; 3368; (1982), L 458 US 102 S Ct 73 Ed 2d 1140 a case precursor which served as a and which drew similar conclusions Tison about the Amendment’s concern with the offender’s role discussion, capital offense. Pertinent to our Court in guilt Cabana held that the offender’srole in the offense did not concern capital or innocence and did not an element of murder that had establish Cabana, Rather, by jury. determination of to be found 385. proportionality purposes offender’srole was consideration of Opinion op the Court

These cases are instructive in the instant case. Although holding produce the Court’s in Miller did not outright imposition life-without-parole an ban on the of juvenile offenders, sentences for homicide it neverthe- majority less declared that in the cases, vast that disproportionate Eighth sentence will be under the proportionality analysis Amendment. Similar to the Supreme Tison, Atkins and Court in Miller con- cluded that a certain characteristic of the offender punishment rendered the maximum authorized disproportionate statute to be because that character- suggested culpability part istic diminished on the Supreme Tison, the offender.And as in Atkins and recognized Eighth Court in Miller Amendment required protections a certain framework of be consid- ered before the maximum authorized imposed. Thus, statute could be the decision in Miller juvenile age demonstrates that a offender’s is a miti- gating rendering factor that is to be considered in proportionate sentence for a who is convicted first-degree Legislature murder.17Our enacted MCL way essentially 769.25in a mirrored that which is required by Miller. Consideration of the Miller factors required jury Amendment and was not a decision that Accordingly, determination. Id. to the extent the Court has issue, finding mitigating addressed this it has determined that a on implicate right However, factors does not to a trial. before we place Cabana, too much stock in we must note that the case was decided prior Apprendi. Accordingly, place greater emphasis we on the state already opinion. court lower federal court decisions discussed in this 17Accordingly, prosecuting attorney we caution that if the moves for a 769.25(2), life-without-parole sentence under MCL the resultant Miller hearing perfunctory must not be treated as a exercise that will auto matically authorize the of a sentence. approach defy That principles would those that were first announced in Montgomery, Miller and that were made even clearer in life without imposed only is to be on offenders in the rarest of cases. mitigate punishment, under MCL769.25 acts to rather acting equivalent than as the functional of an element greater of a offense.

F. CONCLUSION sum, we find that Miller’sindividualized sentenc- ing incorporated by mandate, as 769.25, MCL does not precedent. judge, run afoul of Sixth Amendment A not jury, impose must determine whether to a life- without-parole term-of-years sentence or a sentence Accordingly, reject under MCL 769.25. we the result prior panel in reached Skinner and concludethat the in analysis. this case was correct in its IV. APPLICATION TO THIS CASE pros- As for the outcome of the us, case before (1) things: ecution asks that we do two affirm the life-without-parole imposed on defendant (2) appropriate and articulate the standard of appeal juvenile review on for a addressing sentence. In sary issues, these we find it neces- incorporate to adhere to and Miller’s and Mont- gomery’s oft-repeated warnings rarely about how life- without-parole sentences for offenders will be proportionate.

A. THE TRULY RARE JUVENILE stopped shy noted, As Miller of—and did not ex- pressly consider—imposing categorical ban on life- without-parole juveniles, sentences for but the Su- preme repeatedly admonished impose penalty authorities to of life without only given many circumstances, the rarest of mitigating youth. regard, factors of In this we note the Opinion the Court Roper and Graham

concerns raised Miller—and matter—concerning juveniles are differ- for that how culpability in terms of their ent from adults capacity Notably, change. cases underscored these juveniles adults, tend to be less mature than are likely possess “underdeveloped more responsibility,” an sense of likely engage

and are more in reck- (citation Roper, 543 US at 569 less behavior. omitted). Largely quotation reasons, marks for these universally prohibit juveniles from states almost mak- long-term ing many decisions that will have effects “voting,serving juries, marrying such as on or parental Id. consent.” addition, “are more vulnerable or sus- negative pressures,

ceptible to influences and outside including peer pressure.” Id. Children also “have their limited control over own environment lack ability horrific, to extricate themselves from settings.” crime-producing Miller, 567 US at 471 omitted). (citations, quotation marks, and alteration juveniles And have a lesser-defined sense of character typical juvenile’s “personality adult; than the transitory, Roper, traits . . . are more less fixed.” Juveniles, Graham, at noted the US 570. Court capable change adults, “are more than are and their likely irretrievably actions are less to be evidence of depraved character than are the actions of adults.” (citation quotation Graham, 560 US at 68 marks omitted). explained Graham, the Court that stud- “parts ies have that of the in- demonstrated brain through volved in behavior control continue to mature “youth Hence, late adolescence.” Id. is more than a chronological signature qualities fact,” and “its are all (citations quo- Miller, at 476 transient.” 567 US omitted). tation marks People Hyatt Opinion op the Court

The Court explained in Roper, 570, “[fjrom reasons, all these a moral standpoint it would be misguided to equate the failings of a minor adult, those of an for a greater possibility exists that a minor’s character deficiencies will be reformed.” “[T]he distinctive youth” attributes of reasoned the Miller, Court in 472, 567 US at “diminish the penologi- cal justifications for imposing the harshest sentence on juvenile offenders, even when they commit terrible Therefore, crimes.” when it comes to sentencing a juvenile, concern must given to the youth offender’s and its attendant characteristics. This was the impe- tus for Miller’s individualized mandate. See id. at 473 (emphasizing that “youth matters deter- mining the appropriateness aof lifetime of incarcera- tion without the possibility parole”), and id. at 474 (“By removing youth from the balance—by subjecting a juvenile to the same life-without-parole ap- plicable to an adult—[mandatory sentencing schemes] prohibit a sentencing authority from assessing whether the law’s harshest term imprisonment offender.”). proportionately punishes juvenile How- ever, this is not say that a juvenile should not face consequences for actions; rather, his or her in render- ing punishment, consideration must be given to the fact that juvenile offenders generally are less culpable than their adult Graham, counterparts. 560 US at 68.

Because juveniles are different from adults and have still-evolving characters, the Supreme Court has noted how difficult it can be for a sentencer to conclude that life without parole, the harshest possible penalty for a offender, homicide proportionate par- to a ticular offense and Roper, offender. In 543 US at recognized “general differences” be- tween and adults “demonstrate that 418 offenders reliability among be cannot classified added.) (Emphasis The Roper worst offenders.” Steinberg citing Scott, & Court, Less Reason Guilty Dimin- Developmental Immaturity, Adolescence: Penalty, and the Juvenile Death Responsibility,

ished (2003), Psychologist re- Am 1014-1016 also expert psycholo- “[i]t even for marked that is difficult juvenile gists to between the offender differentiate yet imma- crime reflects unfortunate transient whose turity, crime the rare offender whose and irreparable corruption.” at 573. reflects Roper, psy- for even trained If this determination chologists, difficult if we acknowl- would be remiss did not we edge review- our about courts—or concerns matter—accurately assessing, ing inor courts, for that forecasting, an individual who com- essence whether still minor is and will remain mitted crime while irreparably corrupt on for rest ofhis or her life and accurately meting aout the basis of that assessment proportionate sentence. to caution

These concerns led the Court Miller “given Graham, all we have said in Roper, culpability diminished this decision about children’s heightened change, capacity appro we think this harsh sentencing juveniles to priate occasions for US Miller, will uncommon” possible penalty est added). (emphasis returned in Mont at 479 The Court infrequency proportionate idea of the gomery life-without-parole sentences for offenders “[although Miller not fore when it did declared ability impose life close a sentencer’s juvenile, explained lifetime in on a the Court that a prison but the disproportionate is a all irrepa children, those whose crimes reflect rarest of corruption.” at _; US 136 S rable Montgomery, (citation quotation omitted; marks Ct 419 Opinion of the Court added). emphasis majority opinion fact, in Montgomeryused the words “rare” or “rarest” six times describing life-without-parole when a sentence appropriate would be at_; after Miller. id. See 136 S (declaring parole dispro Ct at 726 life without to be children”) (citation portionate “for all but the rarest of quotation omitted); and at _; marks id. 136 Ct at S (emphasizing although might that “a sentencer juvenile encounter the rare who offender such exhibits depravity impos irretrievable that rehabilitation is parole justified,” sible and life without a life-without- parole large disproportionate); sentence will and (stating at _; id. 136 S atCt that “Miller sentencing determined that a child to life without parole juvenile is excessive but for all the rare offender irreparable corruption,” explain whose crime reflects ing life-without-parole that Miller declared juvenile to be unconstitutional “forall rarest but the stating “[a]fter offenders,” Miller, that it will be the juvenile rare offender who can receive that same noting sentence,” and that Miller “drew a line between immaturity children whose crimes reflect transient irrepa and those rare children whose crimes reflect (citation corruption”) quotation rable ted). marks omit B. IMPLEMENTING MILLER AT SENTENCING cautionary language employed by The Roper, Montgomery Graham, Miller, must be hon- light language ored this Court. In of this our Hyatt’s need to review defendant sentence under sentencing juvenile Miller, we conclude when that begin offender, a trial court must with the understand- ing circumstances, that in all but the rarest of disproportionate sentence will be for the reason, offender at issue. For that Mich analysis begin with the its must court unequivo- parole understanding is, life without that Sentencing only cally,appropriate courts in rare cases. lip pay to the service mere than to do more are operate must court A of Miller. demands understanding is, life without under just inappropriate, but a not, not than more often rights. juvenile’s As constitutional of the violation explained Montgomery: then, require a sentencer

Miller, more than did imposing life youth before offender’s consider a penological justifi parole; it established light of the collapse in parole life without cations for a considers youth. Even if a court of attributes distinctive in lifetime sentencing him or her to a age before child’s Eighth Amendment still violates prison, that sentence yet transient reflects unfortunate whose crime for a child sentencing a that immaturity. Miller determined Because the rare for all but parole is excessive life without child to corrup irreparable reflects juvenile whose crime offender tion, parole an unconstitutional life without it rendered their status— class of defenders because penalty for a reflect the tran is, whose crimes juvenile offenders that at _; US immaturity youth. [Montgomery, 577 sient omitted).] (citations quotation marks at 734 136 S Ct every nearly in which situation that We note weigh appropri- sentencing in on is asked to court life-without-parole involve will ateness of all, details. After and oftentimes abhorrent heinous only imposed the worst homicide sentence can a vile offense occurred However,the fact that offenses. enough, of a itself, to warrant is not must under- The court sentence. juvenile, particular searching inquiry into the take a particular offense, make the admit- as the as well determining is tedly whether this decision of difficult truly parole rare for whom life without is constitutionally proportionate compared as to the more constitutionally protected juvenile common and whose immaturity conduct was due to transient for the rea- sons our addressed United States Court. making way And this determination in a implements Montgom- the stern rebuke of Miller and ery, sentencing operate court must under the likely not, notion that more than life without is proportionate. not approach required

That this under Miller becomes apparent warnings even more when one considers the Roper, Graham, and Miller about how difficult it is psychologist, for even a trained let alone a judge, regarding to make a definitive determination juvenile’s capacity Roper, for reform. See 543 US at 573 (remarking qualities youth that the transient make juvenile’s capability determinations about a for reform difficult). exceedingly fact, the Court in Graham, strongly difficulty 77-78, 560 US at felt so about the distinguishing incorrigible juvenile “the few offenders many capacity change” from that have the rejected—in it the case of nonhomicide case-specific offenders—a scheme similar to adopted the one it Miller, later and decided that because the difficult, determination sowas it would impose categorical instead ban in nonhomicide cases. case-by-case permits Because MCL 769.25 a determi- upon filing requisite nation the motion, of the trial operate understanding courts must that, with the more likely life-without-parole not, than a sentence is dis- proportionate juvenile being for the offender sen- Supreme Indeed, tenced. as the Court warned in Roper, given unique Graham, Miller, and the qualities youth, thorough, transient of the even most well-intentioned, and earnest courts en- [July- 316 Mich Opinion op the Court wrong con- reaching risk of the significant a counter being irreparably character juvenile’s about a clusion grave with it the conse- And this risk carries corrupt. and of the Amendment violating of quences it must be undeserving an individual—who denying deserving significant nevertheless remembered is opportunity of the conviction—an because punishment a child. or entered while still prison the he she to leave in Supreme Court exercise for the It was not hollow emphasize how Montgomery repeatedly Miller and life-without-parole propor- sentence will rarely which a the caution with Hence, emphasize we tionate. imposition of life court must view offenders. C. STANDARD OP APPELLATE REVIEW on appeal noted above exist The same concerns her challenges of his or when a That leads us to a second life-without-parole sentence. one that is prosecution raised question, one in in on defendant inherently necessary weighing is, given in the instant case. That Hyatt’s sentence which a circumstances limited is constitutional, what proportionate review for that appellate standard of appropriate sentence? v Mil our

As noted 635; (1990), bourn, our 461 NW2d range Legislature, setting appropriate forth offenses, criminal has entrusted sen punishments tencing responsibility selecting courts with the statutorily authorized from appropriate sentencing ranges embody sentencing ranges. These allow they because “principle proportionality” particu the sentence to the sentencing judge tailor 423 v Opinion of the Court Accordingly, lar offense and offender at issue. Id. Legislature’s pur Milbourn Court believed “that the pose” enacting such scheme was “best served requiring judicial sentencing discretion to be exercised according principle proportionality to the same of guided Legislature punish has in its allocation of spectrum ment over the entire of criminal behavior.” (“The Legislature at Id. 635-636. See id. also at 651 judiciary, regard left then to the crimes, to most determining imposed the task of the sentence to be bounds.”). upon given each offender within The limit judicial impos on the discretion to be exercised when penalties ing punishment propor is that the should tionate to the offender and the offense.Id. at 651-652. appellate imposed Hence, review of the sentence is for discretion, abuse of to determine whether principle proportionality, violates the of “which re quires imposed by sentences the trial court to be proportionate to the seriousness of the circumstances surrounding the 636, offense and the Id. offender.” at 654.

Turning case, to the instant we believe that the appropriate standard of review for cases in which a judge imposes a sentence of life on juvenile defendant is a standard, common three-fold applied variety the likes of which are in a of contexts. Any fact-finding by trial court is to be reviewed for any questions error, clear of law are to be reviewed de regarding novo, and the court’s ultimate determination imposed the sentence tois be reviewed for of an abuse People Hardy, 430, discretion. See 494 438; Mich 835 (2013) (describing NW2d 340 standard review findings for a court’s fact conclusions law); (applying Milbourn, Mich review). abuse-of-discretion standard to Mich requires However, standard abuse-of-discretion explanation Because of the in this context. further unique a life-without-

nature of the mitigating quali- for and the sentence clarify obligated youth, what the we are ties of like in the should look standard abuse-of-discretion juveniles. life-without-parole sentences for of context opinion, later in this in more detail As will be discussed life-without-parole aof hold that the we degree requires heightened juvenile a on a sentence life-without-parole regarding scrutiny a sen- whether particular juvenile proportionate offender, ato tence is appellate standard, an under this deferential and even inherently a sentence as sus- view such court should pect. meaningful appellate provide review under an

To life-without-parole standard for abuse-of-discretion juvenile, reviewing imposed on a the court sentence parole is life without the mindful that must remain may imposed punishment maximum this is the MCL 769.25. That offender under penalty law raises the available under the harshest appellate just defendant, but also for not for the stakes Hence, the decision. review of trial court’s life-without-parole appellate im- of a review rubber-stamping posed cannot be a mere on penalty court. handed out repeatedly Milbourn, warned that our penalty is under the law to be available the maximum only imposed and the most serious offenders failing otherwise, offenses; it would risk most serious proportionality Milbourn, Mich at 645- test. possible penalty impose “in the the maximum 646. To compellingmitigating would run circumstances face of leg- proportionality] [of against principle this Therefore, in terms scheme.” Id. at 653. islative appellate reviewing justifiably skep- review, court is represents tical of a sentence that the maximum avail- punishment, only able because such i.e., in limited, available extreme, the most serious and impose circumstances. See id. at To 654. the maximum possible penalty, “present the case must a combination placing of circumstances in . offender . . the most respect particular . serious. . class with to the Accordingly,sentencing crime . . .”. Id. at 654. courts guard against routinely imposing should the most penalty severe authorized statute. Id. at 645. More- pay cautionary over, we heed to Milbourn’s sentiment unjust imposition that the of a maximum sentence has potential public’s just “[t]he to shake faith in the justice and fair . administration . . .”Id. language employed We use the in Milbourn our as out that Milbourn n senti

starting point, point but ring ments even truer in the case of juveniles. for sentences Those sentences are deemed to penalty be an a “unconstitutional for class of defen is, dants because of their status—that offend immaturity ers whose crimes reflect the transient of youth.” Montgomery, at _; 136 S Ct at 734 (citation omitted). quotation Applying and marks the cautionary language imposition of Milbourn—that the possible of the harshest is to be reserved and rendered with caution—in the of context Miller’s Montgomery’s express repeated warnings infrequently life-without-parole about how a sentence constitutionally proportionate juveniles, will be for we appellate although review, are convinced that done standard, under the abuse-of-discretion should con juvenile life-without-parole a sider inher sentence as ently suspect. suggest presumption While we do not against constitutionality of sentence, the that we would be remiss not to note that review that sen- of APP 368 316 MICH Opinion the Court of the record with searching inquiry into

tence requires that, not, a likely than life- understanding more dispro on a is imposed sentence without-parole 473; Miller, See, US at Mil generally, portionate. Farrell, Strict bourn, See also Mich at 645-646. Amendment, St L 40 Fla U Scrutiny Under (2013) is that there “reason to be 853, (stating Rev parole—a par that life without of the idea skeptical” of class ticularly penalty—is proportionate harsh as widely recognized as who are juveniles such offenders Indeed, as the Court having culpability). lessened Milbourn, regard “[w]ith to Mich warned judgment it our proportionality, principle possible of the maximum run circumstances would compelling mitigating face added.) In (Emphasis Roper, ....” against principle this Miller, Graham, Montgomery, Supreme ways numerous which consistently described the are compelling mitigating circumstances—which warrant a youth to enough the characteristics given mandatory life-without-parole bar on categorical on in the case present sentences—are often youth. mitigating their These circumstances account of mitigating consideration of proper —and the need for sentencing scheme in an individualized circumstances prohibition on driving —were the force behind Miller’s juveniles. life-without-parole sentences for mandatory emphasized Montgomery repeatedly And Miller and only be consti sentence will truly juvenile. rare tutionally proportionate Court’s give effect our Accordingly, States in Milbourn and the United decision Miller an Montgomery, appel- direction in Court’s inquiry and view searching late court must conduct a any life-without-parole sentence inherently suspect as People Hyatt 427 v on a imposed juvenile offender under MCL See 769.25. US Roper, (announcing 543 at 570 that the differences between and adults “render suspect any that juvenile conclusion among falls worst offend- ers”). An appellate give court must meaningful review juvenile life-without-parole sentence and cannot merely rubber-stamp the trial court’s sentencing deci- sion.

As a tool for this undertaking appellate review, we find it appropriate to borrow from a framework em- ployed by noted, some federal courts. As MCL 769.25 requires weighing variety factors in determining whether the being sentenced is the juve- rare nile offender for whom life without is an parole appro- priate determining sentence. In whether the sentenc- ing court abused its in weighing discretion the factors and arriving conclusion, at we its find instructive the following analysis found in v Haack, United States (CA 997, 8, F3d 2005), noting certain situations that constitute an abuse of discretion:18 discretionary sentencing ruling, similarly, may

A [an sentencing discretion] abuse of if a court fails to consider significant relevant factor that have should received weight, gives significant weight improper to an or irrel- factor, only appropriate evant or considers factors but nevertheless judgment commits a clear error of arriv- ing aat range sentence lies outside the limited choice dictated the facts of the case. Steanhouse, 46-47; 43-44, In 880 NW2d (2015), (2016), gtd apply lv 499 Mich 934 this Court declined to

Haack, because that case concerned listed in USC factors 3553(a), Michigan required courts in are not look case, by contrast, those factors. this because a life-without- requires factors, consideration of the find Miller we description instructive Haack’s an certain situations constitute abuse of discretion. 368 Mich THE CASE

D. INSTANT court case, instant we find the trial Turning to the failing adhere to error of law to committed an rarity Montgomery’s directives about the Miller's and be life-without-parole which a sentence should with Hyatt deciding to sentence defendant imposed. When the the trial court focused on parole, to life without to However, gave no credence factors. the court Miller a warnings life-without-parole that repeated Miller’s the uncom- only be on rare or imposed sentence should is inconsistent with both juvenile mon offender. This ,19 Indeed, the Court’s decisions Montgomery Miller and sentencing clear Montgomery Miller make that in simple more a to life without is than parole a any of In give of a set factors. order to consideration meaning proportionality Miller’s discussions about to with the circumstances associated mitigating heed discus- a court must Miller’s youth, will be rarely of life-without-parole sion how to the order warrant proportionate. be, sentence, juvenile must as stated, individual truly rare unequivocally

Miller who is of reform.20 incapable

Moreover, decision regard to the court, case, the instant we are concerned the trial life was warranted concluding case, of the emphasized opinion psychologist this hearing that defendant who testified at Miller we did lacked the Wewould remiss if not note that trial court sentencing. Montgomery at the benefit time of that, earlier, acknowledge as far back as As noted we articulated as Roper, note that this is a difficult one to make. We also determination guidance to in terms of as to how MCL 769.25 and Miller offer little statutory system Nevertheless, this decision. the current make difficult operate. required are is the one under which we Opinion op the Court Hyatt’s prognosis in the change years next was five poor. short, This focus on five-year period for redemp- tion cannot Miller, be reconciled with which holds that a life-without-parole sentence will be proportionate for who irreparably corrupt incapable change—not one who is incapable change within years. the next five The capacity for change within five years hardly seems of any relevance decision of whether an individual who committed crime while a minor is and, irreparably corrupt thus, will remain corrupt wholly and incapable rehabilitation for the remainder of his or her expectancy, life which could easily be another 60 to 80 years.

Given all that occurred at the sentencing hearing in case, this feel compelled we to remand for resentenc- ing; trial court must only not consider the Miller factors, but decide whether defendant is truly juvenile rare in mentioned Miller who incorri- is gible incapable of reform. Accordingly, we reverse Hyatt’s defendant sentence and remand to the trial resentencing. court for On resentencing, the court is to implement the directives of Miller and Montgomery to be mindful that those cases caution against the a imposition of except sentence in the rarest Hence, of circumstances. it operate should the understanding that, likely not, more than life parole without is a disproportionate for sentence de- Hyatt. fendant

V. CONCLUSION We resolve the conflict created prior between the panel this case and majority Skinner by concluding judge, that a a jury, not must determine whether to a juvenile sentence to life parole under MCL 769.25. regard case, With to the instant we Mich Concurring Opinion Beckering, J. Hyatt’s and remand for sentence

vacate defendant proceedings We with this decision. consistent further jurisdiction. not do retain JJ., con- SHAPIRO, P.J., and MARKEY Stephens, J. Beckering, curred with (concurring). conflict The task this J. BECKERING, panel a limited; to decide are asked whether is we juvenile judge is determine whether a or parole MCL to life without under should sentenced question presumes it is constitution- 769.26. This impose ally permissible Michigan to life-without- parole who on offenders commit separate I write a concur- worst homicide offenses. my underlying premise rence concern this to voice Although faulty was issue raised one. scantily unpreserved, briefed, and defendant, it is day. it, I Were we address better left for another of life without would conclude that a sentence unusual offender constitutes cruel or Michigan punishment in ofthe Constitution.1 violation Supreme Court’s conclusions Given the United States reliably assessing regarding in difficulties the inherent juvenile irreparably still-developing is cor- a whether case-by-case rupt, individual scheme the 440; (2014), People Carp, sub In NW2d vacated v (2016), US _; Supreme Michigan, 136 S Ct 1356 our nom Davis v life-without-parole juvenile was not Court that a sentence concluded However, light Michigan in of cruel or under the Constitution. unusual vacated, opinion Carp was and because I that the fact the believe that problems Carp’s analysis the associated with did not address irreparable corruption assessing imprecise speculative nature deciding impose a on an when whether minor, my I while a voice concerns individual who committed an offense concurring opinion, only Supreme to ask Court to consider in this if our the issue in the future. Concurring Opinion J. Beckering, imprecise

set in MCL too forth 769.25 far an exercise pass Michigan muster under Constitution. In- years stead, after a minimum term such as that set 769.25(9), forth MCL the determination should be Board, left to the Parole which has benefit of a fully developed years more individual and a number prove in which the individual can himself or herself worthy parole. Alabama, Miller v 479; 132 S Ct (2012),

2455; 183 L Ed 2d 407 expressly Eighth declined to address whether the required categorical Amendment on bar life without parole juvenile for However, offenders. when one sifts through warnings—(1) juveniles Miller’s.various how categorically deserving pos- are less of the harshest (2) imposed sible can them, be on how justifications penological imposing for the harsh- punishment dissipate est when the characteristics of (3) juvenile considered, offenders are the inherent difficulty making juvenile’s determinations about a (4) sentencing, character at the time of how rarely proportionate—one such sentence will be conceivably could determine life-without- parole is, best, sentence for offender constitutionally suspect. very least, At the to the open extent Miller left the window for life- without-parole sentences for the rare or uncommon juvenile, 479-480, see id. at that window should be being very understood as narrow. parole juve-

Nonetheless, whether life without categorically niles should barred my present Amendment is not concern in the case. question Rather, I whether life without categorically should be under barred Michigan prohibits Constitution, which cruel or un-

432 316 Mich 368 by Opinion Concurring Beckering, J. punishment.2 §1, 16. 1963, art Our Courts Const usual prohibition generally in that the contained have found greater protection §1, than 1963, art 16 affords Const requires closer and that it the inquiry Amendment People punishment Benton, v issue. (2011);People App 191, 204; v 817 NW2d 599 294 Mich App 610, Nunez, 2;n 619 550 618 NW2d (2000).

My imprecise deter- about the nature of concerns mining juvenile irreparably offender is whether ju- corrupt—although, remembered, must be it of his immune from because venile is not knowledge increasing youth—stem from our scientific recognition regarding brain, the human from our an of his or is different from adult because greater culpability capacity and her diminished reform, from the idea that the characteristics irreparable corruption youth a determination of make exceedingly permanent incorrigibility As difficult. or prec- point, to the United States first juveniles clear that often lack the same edent makes possess. degree culpability that adult offenders maturity prone often Juveniles lack are more risk-taking. See than to reckless behavior and adults And, Miller, US at 471. as noted the Court subject as a Miller, to influences—such are juvenile cannot from which the home environment way normally or herself—in a not extricate himself Finally, juvenile typically experienced adults. Id. cognitive develop- stages offenders, of the because greater capacity ment, for reform than have a often imprisonment opine I am first to that lifetime of a not the Eliason, Michigan Constitution. See offender violates (2013) concurring 332-336; App 293, NW2d 357 (Gleichek, J., Mich dissenting part part). People y Hyatt Concurring Opinion by Beckering, J. adult offenders. Id. Stated differently, juveniles inher- ently have a degree certain of malleability—because of their immaturity—that result, adults As a lack. it “misguided” would be morally “to equate failings of a minor with those adult, of an for a greater possibility exists that minor’s character deficiencies will be Roper Simmons, 570; reformed.” 551, (2005). 1183; 125 L S Ct 161 2d 1 Ed Accordingly, juveniles should be treated from differently adults for purposes of sentencing, in particularly regard to the the most serious that can on imposed juvenile offenders: life without parole. The punishment life

caused the Supreme United States Court to break rank from the idea “death dif- long-standing that is ferent” when making comparisons between different types of punishment, inspired the Court to liken for juveniles sentences to the death penalty Miller, for adult offenders. 567 atUS 470; Florida, 48, 69-71; Graham v US 130 S Ct (2010). 2011; L 176 Ed 2d 825 my concern, As to difficult greater second and nature of making individual determinations about juvenile offenders can be gleaned from comprehen- reading Graham, sive of Roper, Starting and Miller. in US Roper, recognized that the characteristics youth “demonstrate juvenile offenders cannot reliability be classified added.) among (Emphasis the worst This offenders.” proclamation based, large part, was in on studies related to the death penalty juveniles, which in caused the Court Roper remark that is “[i]t difficult expert even for psychologists to differentiate between the offender whose crime reflects yet unfortunate transient rare immaturity, [July- Mich Concurring Opinion Beckering, J. cor- irreparable crime reflects offender whose made point US at 573. As the is ruption.” Roper, 543 case, if this deter- in the instant majority opinion how a trained psychologist, is difficult for mination or an judge difficult it for much more on review? court appellate make youth The idea that the characteristics determinations difficult, if not accurate impossible, change continued capacity for juvenile’s about a 68, the Graham, 560 US at and Miller. Graham research, pertinent explain- attention to Court called control of the involved behavior ing “parts brain This through late adolescence.” continue to mature juve- development and the nature of pliable continued reliably classify it difficult to necessarily niles make of rare who is being juvenile incapable as the juvenile 77-78, felt Graham, 560 US at change. Id. The Court in difficulty distinguishing “the about the of strongly so many from the that juvenile few offenders incorrigible rejected—in the change” have that it capacity the juvenile case-specific case of offenders—a nonhomicide to in implemented that sentencing scheme similar juve- about a MCL 769.25.3 Because a determination make, the Court nile’s was so difficult to character on life without imposed categorical ban instead in nonhomicide cases. parole re- The in Graham still Roper concern noted and of difficult, given qualities exceedingly mains: it is regarding make a reliable determination youth, truly incorrigible incapable and juvenile whether a is argued gave Supreme its it that the Court Miller While could offenses, blessing it who commit homicide to such scheme for categorical question that the should be a should be noted whether there parole juvenile not before on without homicide offenders was ban life Court, expressly the issue. declined to consider Miller the Court Miller, at 479. 567 US Concurring Opinion by Beckering, J. change. of Miller, This concern led the explain proportionate 476, 479, that life-without- they sentences, to the extent could even be imposed, would be “uncommon” and “rare,” because “youth chronological is more than a fact,” and “its signature qualities are all transient.” Furthermore, Roper, Graham, studies on which and Miller relied validity applicability: reversing have continued juvenile the sentence aof defendant sentenced to life in prison parole, the Iowa Court dis- argument professionals difficulty cussed the that have predicting juvenile development, noting the course of Psychology that the American Association had filed an “ posited ‘[t]he Miller, amicus brief in in which it that positive predictive power juvenile psychotherapy of ” poor.’ . Sweet, assessments . . remains State v 2016) (citation omitted). (Iowa, NW2d 828-829 difficulty predicting Given the of when a is truly incapable change deserving and thus of a life-without-parole sentence, the admitted lack reli- ability case-by-case sentencing approach, in a and significance decision, I believe that imposing life-without-parole sentence on a speculative far too it constitutes cruel or Michigan unusual under Constitution. regard, particularly compelling Roper’s I In this find warning type required by classification reliability by MCL 769.25 cannot be done with psychologist, trained alone let a court. Roper, compelling at 543 US 573. I also find that the expressly Graham, in 77-78, Court at US rejected case-by-case approach, a in albeit the context determining offenses, of nonhomicide for when life appropriate juveniles. without would be for The present that fact the sentence at in the issue case APP 368 Opinion by Concurring Beckering, J. not mean that a offense does involves homicide regard made with determination to be immaturity, depravity, vul- offender’s character—his capacity nerability culpability, influence, or to outside markedly change—is Nor, that less difficult. matter, fact the conviction involves does the that “spe- necessarily take account of the homicide offense counsel in cial difficulties encountered representation” as that were noted Graham—such (in- generally adults fact mistrust that counsel), understanding cluding limited defense have system, justice generally ca- are less the criminal of consequences plea long-term pable weighing the likely capable assisting offers, are less difficulties These further illustrate their own defense. case-by-case problems approach inherent in such Graham, case. as the one at issue this short, the fact the instant case involves 78-79. that dispel nothing to the concerns a homicide offense does reject type of led Court in Graham to currently case-by-case sentencing approach that is point, Miller On this effect under MCL 769.25. explained although life Graham’s ban on parole applied cases, in nonhomicide their [Graham] none of what said about children—about (and transitory) traits and environmen distinctive mental crime-specific. are tal Those features vulnerabilities—is way, . . . degree the same when evident in the same and to robbery killing. turns into a So Graham’s a botched any implicates im reasoning only categorical posed juvenile, on even its bar relates as [Miller, (emphasis 567 US at 473 to nonhomicide offenses. added).][4] cognizant very Again, these while the Court Miller was concerns, expressly weigh it in on whether declined to the issue punish- juvenile life-without-parole cruel sentence was and unusual Concurring Opinion by Beckering, J. simply arguing reason, that the instant case is For this it involves a homicide different from Graham because ignores pertinent that in deter- offense mining which is most

whether the is cruel or unusual for juveniles: youth the characteristics of and its juveniles attendant circumstances make constitution- ally purposes sentencing, different for and it is extremely any degree determine, difficult to with reliability, truly deserving which are of life By parole. imposing life-without-parole without sen- necessarily tence, the court concludes at that the individual committed a crime outset who corrupt he a minor continue to when or she was will age 20, 30, 40, 50, 60, 70, and, matter, at the for that every age until he or she dies. I believe that the concerns noted the Court Roper applicable Miller, Graham, in the case are essentially that a at hand. These cases teach us sen- tencing judge large degree, guessing is, whether to capable reform, is on the basis of widely recognized information that is as unreliable malleability juvenile’s still-developing given of a sentencing judge brain. This is not to fault the tasked trying impose life without with to decide whether to parole. I have no courts exercise doubt determining professionalism care and utmost any punish- particular punishment, whether this or appropriate proportionate. ment, The constitu- is diligence tional concern I see is not based on a lack of professionalism by sentencing judge, but the or very inquiry that made when he or she nature of the juve- impose life on decides whether Constitution, it nevertheless went out ment under the United States but way emphasize rarely type how this of sentence would be of its constitutionally proportionate. 316 Mich Beckering, J. Concurring Opinion sentencing judge nile offenders. A mining tasked deter- impose whether to sen- Simply put, tence is faced with an arduous task. as the repeatedly warned, United States Court has requires inquiry poor this task an that is based on predictors, inquiry and that cannot be answered with a reliability degree juvenile’s sufficient still-developing of because of maturity general, and, sense of greater capacity have for reform. And task, remembered, this it must be carries with it the exceedingly high imposing disproportionate risk of juvenile’s sentence that violates the constitutional rights. in Montgomery Louisiana, As noted v (2016),“[e]ven _; 718, 734; 136 S Ct 193 L Ed 2d 599 age if a court considers the child’s before prison, him or her to a lifetime in that sentence still violates the Amendment for a child whose yet immaturity.” crime reflects unfortunate transient (Citations omitted.) quotation and marks my speculative

Thus, I note that the concerns nature imposing life-without-parole inherent in sentence on juvenile punishment homicide offenders renders the Michigan cruel or unusual under the Constitution. If possible penalty of the harshest avail- any degree able under the law cannot be done with reliability given being the offender a minor about predict whom the court must future, his or her entire how can the sentence not be rendered either cruel due guesswork unusually By chronologi- to or unfair? their juvenile spend minors, cal status as offenders more prison time in for a than offense any they However, adult. because were minors when they they offense, committed their were in a less culpable according class of offenders to our United speculative, States Court. How could such a approach meting roll-of-the-dice to out the most seri- Hyatt Concurring Opinion Beckering, J. group punishment ous on a of offenders who are categorically culpable less not be cruel or unusual only punishment? One need examine his or her own maturity judgment, impetuosity, character, level, susceptibility ages 14,515,16, to influence at the years age they and contrast these same traits as age age older, exist at the of 40 or as that marks the range in which a offender will be after com- only years pleting the bare minimum 25 for a mini- 769.25(9). mum sentence under MCL While certainly deserving offenders are accurately pegging offenses, their the task of the rare truly irreparably corrupt simply individual who is imprecise speculative pass too muster under Michigan’s Constitution.

Turning hearing case, instant Miller place prime defendant took serves as reliability making illustration ofthe lack of involved juvenile’s still-forming char- a determination about a psychologist had a acter. The who testified this case psychology Ph.D. in educational and clinical and had practicing psychologist approximately been regard- years. pressed Yet when on cross-examination ing thought capable defendant she was whether way change, predicting of she admitted: “I have no of change going he is to be able to his course. . . . whether totally say certainty he, that he’s I cannot that highlight I this not as an indictment of unredeemable.” qualifications point abilities, or but to out the doctor’s the same concerns noted the doctor admitted opinion: psychologist even a trained has earlier essentially this way knowing no of what will become of matter, 14, Michigan younger allows for Or even than for that as law juveniles younger years age tried as adults. See MCL than 14 to be 712A.2d; MCL 712A.4. 316 Mich

Concurring Opinion Beckering, J. Hyatt’s any defendant character—or that of other juvenile, for that matter—in the future or whether he capacity change point has the some his lifetime. complex problem relatively The solution to this is simple: job. let the Parole Board do its The Parole juvenile will have the of the Board benefit offender’s cognitive development through adulthood, full as well years as and institutional records behavior with asking which to make the decision. Rather than essentially guess court to make its best admittedly based on information that is not ade- quate why hand, for the task at not allow the Parole time, Board—which has the benefit of incarceration cognitive development by records, and further juvenile—to However, make the decision? this is not to suggest guaranteed parole. that a should be only Rather, individual, entitlement is that the prison child, who entered while still a should have capable reform, chance to show that he or she is requisite has indeed demonstrated the level of reform parole. merit Graham, consideration for As stated in given 560 US at should be “some mean- ingful opportunity to obtain release based on demon- maturity strated If rehabilitation.” truly irreparably offender is the rare individual who is corrupt, surely that condition will manifest itself and during lengthy be verified term of incarceration the becoming parole- individual will have served before eligible. determining Likewise, whether the indi- cognitive vidual, now with the benefit further devel- opment capable maturation, of reform and change speculative by point will be far less Allowing time. the Parole Board to make this determi- gives juvenile nation a chance at after his or fully formed, her character is more rather than at a People Hyatt Concurring by Opinion Beckering, J. is, time when that character accounts, all “a work in progress.” Sweet, 879 NW2d at 839. adhering Recently,

I am not alone in to this view. Supreme Court, Iowa sively which has written rather exten- variety juvenile life-without-parole

on a of issues after concluded that Miller, Constitution, Iowa which mirrors the United States Constitution and bars punishment, case-by-case cruel and unusual approach forbids a categorically and bars of life- without-parole juveniles. regard, sentences for In this enterprise the Iowa court concluded “that the of iden- tifying which offenders are irretrievable at the time of trial too simply speculative likely and impos- given sible what we now know about the timeline of brain development related prospects for self- at NW2d regulation Sweet, and rehabilitation.” added). (emphasis 836-837 As noted the Iowa Su- preme phenomenon Court, studies on the timeline and development explain why brain “smart really stupid things.” adolescents sometimes do Id. citing Steinberg, Age Opportunity: Lessons from (Mariner Books: the New Science Adolescence Houghton 2014), p Harcourt, And, Mifflin 69.6 re- court, marked the Iowa the Miller factors are them- “fraught misapplication, selves with risks” of because necessarily weighing some factors could be viewed as against in favor of life without it at the same time.7 879 NW2d at 838. All of this leads Sweet, original point: extremely problematic back to the it is require “speculative court to make phase development, It is not until the third and final of brain which “ place early twenties,” ‘get takes “into the when individuals better at controlling impulses, thinking long-term consequences their about the ” decisions, Sweet, resisting peer pressure.’ of their 879 NW2d at 837, quoting Age Opportunity, p 71. example, As an the court asked: 316 MICH APP368

Concurring Opinion Beckering, J. juvenile prospects up-front decisions on offenders’ they adequate predictive because lack rehabilitation supporting information such a decision.” Id. at 839. determining “[T]he risk of error” whether a life- proportionate unaccept- without-parole sentence is “is ably high” sentencing; high at the time of this risk of Supreme impose error caused the Iowa Court to categorical life-without-parole ban on sentences for juveniles. According at 837. to the Id. Iowa sentencing Court, a court any way apply principled cannot the Miller factors in identify very with assurance those few adolescent offend- might proven irretrievably ers that later to be de- short, asking praved. In we are the sentencer to do the impossible, namely, to determine whether the offender is “irretrievably corrupt” pro- at a time when even trained years experience fessionals with of clinical would not attempt make [Id.] such a determination. significance sentencing [W]hat should a court attach to a offender’s stable home environment? Would fact that comparatively positive adolescent offender failed to benefit from suggest irreparable unlikely home environment he or she is and an conversely, candidate for rehabilitation? Or would the offender’s experience suggest with a stable home environment that his or her personality irreparably damaged character and have not been greater? prospects for rehabilitation are therefore quandary A similar faces courts offenders experienced neglect who have have been abuse and or horrendous otherwise deprived aof stable home environment. Should the resulting profound deep-seated offenders’ character deficits and against prospects wounds count for rehabilitation and in life-without-the-possibility-of-parole favor of sentences under the depri- Miller framework? Or should courts view the vation of a without home stable environment as contraindication for life possibility only because time will tell age whether maturation will come with and treatment in a [Sweet, 838.] structured environment? 879 NW2d at Concurring Opinion Beckering, J. although speculative Furthermore, nature of imposing life-without-parole sentences on enough to raise serious concerns about those sentences Michigan Constitution, under the it should be noted regard practice permitting that with to the life- without-parole juveniles, Michigan ap sentences for pears danger standing wrong to be in on the side of history. growing In the wake of number of Miller, prohibit, states have decided to inor some cases not juveniles. seek, sentences for e.g., See, al, Mills et Juvenile Without Parole in Life Law & Practice: Chronicling Rapid Change (2016); 535, 552, 65 Am U L Rev The Underway, Sentencing Project, Juvenile Without Parole: Life <http://www.sentencingproject.org/ An Overview (accessed publications/juvenile-life-without-parole/> 2016) [https://perma.cc/U94J-MLBS];Equal 29, June Initiative, Justice Philadelphia Attorney District De clares Sentences Inappropriate Life-Without-Parole for <http://www.eji.org/philadelphia-da-says-life- Juveniles (accessed without-parole-inappropriate-for-juveniles> 2016) [https://perma.cc/7EZF-8H4D];Equal 28, June Initiative, Justice Growing Utah Joins Number of States that Have Abolished Juvenile Without Life <http://eji.org/news/utah-abolishes- Parole Sentences (accessed 2016) juvenile-life-without-parole> 28, June [https://perma.cc/SD2U-767C]; 1, News Center South Sentences Dakota Bans Life-Without-Parole <http://www.newscenterl.tv/story/31497823/ Youth south-dakota-bans-life-without-parole-sentences-for- (accessed 2016) youth> [https://perma.cc/ June Sentencing Campaign YHW7-GQHK];The for the Fair Youth, of States that Ban Without Parole Life <http://fairsentencingofyouth.org/reports-and- Children (accessed 6,2016) July reresearch/sentenceeliminated/> Concurring Opinion Beckering, J. [https://perma.cc/UTC5-YPT3].81note that in evaluat- ing cruel, unusual, both, whether is or it only is not of number states that authorize a particular penalty importance; that is of “the consis- tency change” the direction must be examined as of Virginia, 304, 315; 2242; well.Atkins v 122S Ct (2002) added). (emphasis L153 Ed 2d 335 The number eliminating life-without-parole of states sentences in light fearing Michigan, ofMiller leaves one one of responsible juvenile a handful of states for the most life-without-parole sentences, see Juvenile With- Life Practice, out Parole in Law & 65 Am U L Rev at wrong 571-572,is on the side of the recent direction of change. particularly light This is so in of the recent Pennsylvania reluctance in states like to seek given Pennsylvania sentences, along Michigan, only was, with one of a few states responsible majority for a life-without- parole sentences. See Juvenile Without Parole in Life Practice, Law & 65Am U L atRev 571-572.This recent Michigan trend illustrates that the island on which sits regard particular sentencing practice to this becoming increasingly lonelier.

Finally, categorical even if a ban is off the table light Carp, light note, I would be remiss not to earlier, the same concerns raised I what view as currently underway There is also an effort in the United States Michigan District Court for the Eastern District of to ban life-without- parole juvenile White, Judge Stops sentences for offenders. See Federal Process, Sentencing 7, 2016), (July Juvenile The Detroit News Lifer <http://www.detroitnews.com/story/news/locaPmichigan/ available at (accessed 2016/07/07/michigan-juvenile-resentencing/86810456/> 8, July 2016) [https://perma.cc/7L55-YH4P]. Snyder, unpublished See also Hill v opinion of the United States District Court for the Eastern District of (Docket 30, Michigan, January 10-14568), issued No. vacated and (CA 2016). grounds, remanded on other 821 F3d 763 Concurring Opinion Beckering, J. holes in the significant Legislature’s implementation of the Miller decision in MCL 769.25. Even if Michi- gan categorical Constitution does not compel ban on juvenile of imposition life-without-parole sen- inherent tences, sentencing juve- concerns niles do not parole suddenly to life without diminish. It if and unreasonably is not as the unreliable difficult determining truly task of which offenders are incorrigible incapable change by reject- vanishes ing juve- ban on life without for categorical addressed, niles. Those concerns must be or our courts risk the arbitrary capricious imposition sentences. life-without-parole

The to Miller in MCL does legislative response 769.25 addressing not far these concerns. The go enough Supreme Court’s decision Miller announced the des Amendment— required by tination that limits the individualized rare indi only sentences to those viduals who are did little to irreparably corrupt—but to at that destination. The Court address how arrive at _; recognized Montgomery, even as much in 734-735, 136 S Ct at when it stated that Miller was rule and left to the states the largely substantive responsibility implementing procedures comply said, Miller, it could be set forth the with Miller. response Michigan, minimum that must be done. The 769.25, way procedural MCL offers little in the minimum that Miller requirements beyond the bare which requires hearing articulated. The statute factors,” “Miller but the trial court is to consider the silent, the trial announcing otherwise is save evidence and that hearing court can hold a and consider or make any given right appear victims must be (7). 769.25(6) and Essen a statement. See MCL Concurring Opinion by Beckering, J. tially, requires the statute a court to “do nothing Miller” and more.

In order to Miller in a implement way that affords meaning decision, and substance to the we provide must direction, instruction, courts with more guide information to the sentencing process. While the ultimate determination as to what procedures should be case, is not employed before this conflict I suggestions. Drawing offer few brief on comparisons to death penalty cases first made in Graham and repeated Miller, employment of a defense team that attorneys, mitigation includes two specialist, and an investigator, penalty cases, as is done in death may go alleviating some distance toward the difficulties inher ent in determining whether a is irreparably Drinan, See corrupt. Sentencing Juvenile Post-Miller: Measures, 203, Preventive & Corrective 2015 Wis L Rev (2015). 209-210 Campaign See also The for the Fair Sentencing Youth, Trial Guidelines: Repre Defense senting Child Client Facing Possible Sent Life ence, available at <http://fairsentencingofyouth.org/ wp-content/uploads/2015/03/Trial-Defense-Guidelines- Representing-a-Child-Client-Facing-a-Possible-Life- (accessed 2016) 6, Sentence.pdf> July [https://perma. Further, cc/UTP3-N4KN] .9 provisions could be made for a sentencing testimony court to hear from a variety expert in a way witnesses shines further light subjects on some of the that mark the determination to be made with so much uncertainty. include, few, These subjects name a such juve as nile brain development, immaturity, intellectual ca pacity, susceptibility to influences such as peer pres- guidelines part These are modeled in after the ABA Guidelines for Appointment Penalty and Performance of Defense Counsel Death Guidelines, p Cases. Trial n5 2. Defense Opinion by Meter, J. family pressure, juvenile’s sure and the effect of the background, any, capacity if and the for reform. See p Trial Guidelines, 20. As noted the Iowa Defense Sweet, Court in 879 NW2d at when it briefly attempt accurately considered how to sen- tence sentences in a way pass that could constitutional muster under the process making Amendment: “the the de- culpable termination of which offenders are most require expert intensive, would be resource testi- mony, unguided and would not be a matter left to the process by discretion of the sentencer.” The described MCL resource-intensive, 769.25 is not makes no men- expert testimony, places tion of restrictions, few if any, on the discretion of the defects, sentencer. Those majority opinion goes which the some distance toward remedying, my opinion, should, in be addressed.

Shapiro, P.J., concurred with J. Beckering, (concurring part dissenting METER, J. in part). majority I, II, I concur in Parts and III of the opinion. Kenya not, however, I would vacate defendant Hyatt’s sentence and remand this case for resentenc- ing. concept proportionality provides

The Milbourn1 adequate an framework for review of sentences such as imposed present the one in the case. The explicitly principle court mentioned and adhered to the proportionality. addition, In court, as by panel App Perkins, noted v 314 Mich (2016), explicitly 140, 179; 885 NW2d 900 took the Miller factors into consideration.

1 (1990). People Milbourn, 630; v 461 1 NW2d Mich by Opinion Meter, J. on the state majority opinion following

The focuses Hyatt’s defendant regarding ment a psychologist predict years, I were to in five capacity change: "[I]f statement, however, This possible.”2 it would not be and other merely testimony one of the aspect was taken into consideration appropriately evidence addition, while the court did not sentencing court. v employed use the term “rare” as Miller explicitly 460, 479; 2455, 2469; 183 L Alabama, 567 US 132 S Ct (2012), Louisiana, Montgomery Ed 2d 407 718, 733; (2016), L Ed 2d US _; 136 S Ct appli makes clear that the court applied record deciding from Miller in that a sentence concepts cable defen appropriate despite of life without was Hyatt’s juvenile. dant status as a Moreover, circumstances—including pertinent shooter, the actual had a that defendant was behavior, history appeared of assaultive to counselor conscience, have no showed no remorse or concern crimes, over the was “disconnected from societal mor- mores,” maladjustment,” als and had “serious and was offenses—clearly sup- old at the time of the years See, Miller, 567 US at ported generally, sentence. court noted that specifically 475-476. The was not a factor in Hyatt’s age mitigating defendant case, adequately this and the court set forth particular showing Hyatt’s potential evidence that defendant Miller, id. at the Su- rehabilitation was low. mandatory Court stated that a sentence of life preme “disregards possibility of rehabili- suggest tation even when the circumstances most it.” Here, did not “most it.” suggest the circumstances simply predict psychologist The further stated that she could not change. whether defendant would People y Hyatt

Opinion by Meter, J. principle proportionality I find no violation of the and no need to remand this case. The procedure was constitutional and the sentence was proportionate surrounding to the circumstances offense and the offender.

I would affirm the sentence. Kelly

M. J. Riordan, Meter, concurred with JJ., J.

Case Details

Case Name: People v. Hyatt

Court Name: Michigan Court of Appeals

Date Published: Jul 21, 2016

Citation: 891 N.W.2d 549

Docket Number: Docket 325741

Court Abbreviation: Mich. Ct. App.