# People of Michigan v. Jason Benjamin Symonds

> Michigan Court of Appeals · November 25, 2025

URL: https://www.frixlaw.com/law-library/cases/11218811

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** November 25, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11218811

## How later opinions describe it (automated extraction)

- stating that the Court would not have jurisdiction to hear a case resolved solely on state- law grounds
- noting, in a different context, that the Legislature reasoned that “a key factor in rehabilitation is the defendant’s willingness to accept responsibility for his conduct”

## Opinion text

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 25, 2025
Plaintiff-Appellee, 11:05 AM

v No. 366966
Calhoun Circuit Court
JASON BENJAMIN SYMONDS, LC No. 1994-003085-FC

Defendant-Appellant.

Before: RICK, P.J., and O’BRIEN and MALDONADO, JJ.

PER CURIAM.

Defendant, Jason Benjamin Symonds, appeals as of right the trial court’s reimposition of
his sentence of life without parole (LWOP) for his first-degree murder conviction. For the reasons
provided below, we vacate and remand for reevaluation under the proper framework.

I. BACKGROUND

On March 3, 1995, a jury convicted defendant of first-degree premeditated murder, MCL
750.316(1)(a), of five-year-old Nicole Van Noty.1 Defendant was 16 years old at the time of the
murder and was tried as an adult. Under applicable law at the time, the trial court sentenced
defendant to mandatory LWOP.

1
The jury also found defendant guilty of kidnapping, two counts of first-degree criminal sexual
conduct, felony-murder predicated on kidnapping, and two counts of felony-murder predicated on
the two criminal sexual conduct convictions. But the trial court at the initial sentencing granted
defendant’s motion to vacate all of the convictions except for the first-degree premediated murder
count. While defendant had argued that these other convictions should be vacated on double-
jeopardy and jurisdictional grounds, the court, while citing People v Veling, 443 Mich 23; 504
NW2d 456 (1993), only cited double jeopardy.

-1-
The general circumstances of the murder were recounted in this Court’s prior opinion
affirming his conviction:

According to the testimony presented at trial, defendant lured his
stepsister’s five-year-old playmate [Nicole] into the basement of an abandoned and
boarded-up house owned by his father and located near defendant’s own home.
Once in the basement, defendant sexually molested the victim, and struck her
numerous times with the blunt edge of a hatchet, with a wooden dowel wrapped
with wire, and with a metal rod, killing her. Defendant then placed her naked body
in a black garbage bag and buried her behind the abandoned house. The following
day, defendant allegedly incriminated himself to a friend and after agreeing to be
interviewed by the police, defendant confessed that he had killed the victim.
[People v Symonds, unpublished per curiam opinion of the Court of Appeals, issued
October 10, 1997 (Docket No. 186002), p 1.]

The crime scene was described as the worst that many of the police officers had ever seen.
There was a lot of blood in the basement as well as possible brain matter. Nicole was 38 pounds
at the time of her death. She suffered a fractured skull and several injuries on her back. She also
had a tooth knocked out, which was associated with tears on the inside of her lip. There also was
bruising in the area of her genitalia, which the medical examiner said indicated that Nicole was
alive at the time she was sexually assaulted. The medical examiner also testified that there was
evidence of particles in Nicole’s trachea, indicating that Nicole was still alive when she was buried.

The police interviewed defendant. During this interview, defendant first denied any
involvement with Nicole’s disappearance. But defendant then stated that he accidently hit her with
the hatchet while he was chopping at a tree in the backyard. Defendant said that he then “put her
in the basement” removed her clothes, hit her “a couple of times” with a metal stick, put her in a
garbage bag, and buried her in the backyard. Defendant eventually admitted to also sexually
penetrating her. When confronted with the fact that there was no sign of any blood in the backyard,
defendant changed his initial story that he had accidently hit Nicole while chopping at a tree to be
that he first hit her when they both were “going towards [the] basement.” Defendant explained
that Nicole approached him while he was chopping at the tree and asked if defendant’s sister was
around. Defendant said that she was not, and when he walked in the house, he heard her say
something, which “scared” him, implying that this is when he accidently struck her. After carrying
Nicole into the basement, defendant said that he hit her with “a little of everything,” left her in the
basement, and went home to shower. When he returned hours later, he saw that Nicole was still
alive and beat her some more before putting her in the garbage bag and burying her. Consequently,
although defendant admitted to killing Nicole, he always maintained that the initial hit was
accidental.

In a psychological evaluation conducted in March 1995, when defendant was asked
whether he had a girlfriend, he never mentioned anyone named Letitia and instead said: “Every
female in Battle Creek is a hooker. They mistake sex for love. That’s all they are good for anyway.
Getting money from you for sex.” During defendant’s incarceration, he obtained his GED, was
accepted into the Calvin University Initiative program, received a bachelor’s degree from Calvin
University, and received glowing reviews and recommendations from numerous corrections staff.

-2-
Almost 20 years after defendant was sentenced to mandatory LWOP, the United States
Supreme Court held in Miller v Alabama, 567 US 460, 479; 132 S Ct 2455; 183 L Ed 2d 407
(2012), that such sentences when imposed on defendants who were minors at the time they
committed their crimes are unconstitutional as cruel and unusual punishment. The Court ruled
that because such mandatory sentences prevent consideration of the mitigating qualities of youth,
they pose “too great a risk of disproportionate punishment” when imposed on juvenile offenders.
Id. “Miller’s substantive holding is that LWOP is an excessive sentence for children whose crimes
reflect transient immaturity.”2 People v Taylor, 510 Mich 112, 128; 987 NW2d 132 (2022). The
Miller Court explained the proper analysis that is to occur before imposing a LWOP sentence on
a juvenile offender.

In response to Miller, the Michigan Legislature enacted MCL 769.25 and MCL 769.25a,
in which the Miller factors were expressly incorporated into this state’s discretionary juvenile
LWOP sentencing scheme. Taylor, 510 Mich at 126, citing MCL 769.25(6). Under this scheme,
if the prosecutor requests LWOP, the trial court must hold a hearing to consider the sentencing
factors and other relevant criteria. MCL 769.25(6).

At the Miller hearing, the prosecution admitted some exhibits and presented live witnesses
who described the horrific and heinous circumstances of the crime.3 Defendant’s exhibits were
admitted via stipulation at the beginning of the hearing as well. At the conclusion of the
prosecution’s proofs, defense counsel moved for involuntary dismissal under MCR 2.504(B).
Defense counsel seemed to imply that because the prosecution only presented witnesses who
discussed the heinous nature of the crime, the prosecution did not adequately address the Miller
factors and therefore could not meet its burden of rebutting the presumption against a LWOP
sentence. The trial court denied the motion, noting that a number of exhibits—introduced by both
sides—were admitted into evidence as well.

Defendant at the Miller hearing presented the testimony of Daniel Keating, who was a
professor of psychology at the University of Michigan and specialized in developmental science,
with a focus on early development and adolescent development. Keating’s purpose was to discuss
the science that underlined the rationale for the Supreme Court’s decision in Miller; as such, he
did not review any materials specifically related to defendant or his case. Keating explained that
human brains continue to develop until the person reaches the age of 24 or 25. He further explained
that without a fully developed prefrontal cortex, a person is more prone to impulsive behaviors.
Regarding the potential for rehabilitation, Keating testified that there is no evidence to suggest that
lying, being nonemotional, or not showing remorse is predictive of the capacity for rehabilitation.

2
The United States Supreme Court held in Montgomery v Louisiana, 577 US 190; 136 S Ct 718;
193 L Ed 2d 599 (2016), that Miller announced a substantive rule of constitutional law that applied
retroactively to cases on collateral review.
3
The prosecution’s exhibits were received by the trial court before the hearing commenced.
Pertinently, the exhibits consisted of an April 1995 presentence investigation report, the autopsy
report, a May 1995 presentence investigation report, a May 1994 competency and criminal
responsibility evaluation, a March 1995 psychological evaluation, defendant’s prison misconduct
report, and transcripts of the police’s interviews with defendant.

-3-
Keating also said that an adolescent who has experienced trauma can recover. However, Keating
also conceded that while it was possible to have a 16-year-old adolescent be irreparably corrupt, it
was impossible to scientifically identify such individuals.

Matthew Mendel, a psychologist, also testified for defendant. Mendel relayed that
defendant had suffered physical and sexual abuse while growing up and opined that defendant’s
assault of Nicole was “connected” with him being sexually abused at a young age. Mendel
suggested that, while there were reports of defendant always being terribly mad in his youth,
defendant was no longer that same dangerous, impulsive person and that he was fully rehabilitated.
Mendel also recounted how defendant explained to him that near the time he killed Nicole, his
girlfriend, Letitia, became pregnant. While at first defendant was overjoyed, in subsequent
months, he became overwhelmed, used more drugs, and made recent suicide attempts, all leading
up to his attack of Nicole.4 In support of his conclusion that defendant was rehabilitated, Mendel
noted, among other things, that in defendant’s 29 years of incarceration, he had no record of
fighting, stealing, or being impulsive. Defendant received 29 tickets 5 during his 29 years of
imprisonment leading up to the Miller hearing, but all of the tickets would be classified as minor
offenses in the present system.6

The court analyzed the five Miller factors, finding that factor (1) (defendant’s
chronological age and its hallmark features) and factor (2) (family and home environment) were
mitigating factors. The court found that factors (3) (circumstances of the homicide), (4) (whether
defendant might have been charged with and convicted of a lesser offense if not for the
incompetencies associated with youth), and (5) (the possibility of rehabilitation) were neutral. The
court additionally found aggravating factors. The court was primarily concerned that defendant
had not taken full responsibility for the offense; defendant continually “painted the offense in a
way that disregarded the premeditation” and predatory aspects of the offense. The court noted that
even when recently discussing the murder with Mendel, defendant “didn’t say anything about
luring the child into the basement” and indicated that he attempted to “comfort her” after the sexual
assault. The court noted that nowhere else in the record is there any indication that defendant
attempted to “comfort” Nicole. Because of the inconsistencies between what was presented at trial
and how defendant presented information to the experts later, the court openly questioned
defendant’s credibility with Mendel. The trial court noted that its view was supported by other
evidence as well, including a 2013 COMPAS report and a 2020 sex-offender risk assessment. A
high score in defendant’s 2013 COMPAS report indicated that “there may be issues, including
justification for criminal behavior, refusal to accept responsibility, blaming the victim, and that

4
Notably, defendant’s representations to Mendel were contradicted by other evidence: in
defendant’s presentence investigation report, it lists that defendant had no history of substance
abuse; in the lower court record, there is no reference to defendant mentioning Letitia to anyone
else; and during his interview with the police, defendant said that he tried to commit suicide once
“a long time ago” but did not “ha[ve] the guts to do it again.”
5
But only 25 tickets were “sustained.”
6
The Department of Corrections modified its misconduct system in 2010, which resulted in the
reclassification of many offenses.

-4-
there would be a high need . . . to address cognitive issues that [defendant] may have.” And in the
2020 sex-offender risk assessment, defendant again minimized his intentions by stating that Nicole
simply “followed” him to the basement and that he did not intend to assault or kill her. That same
assessment indicated that there were clinical concerns about emotional identification with children,
hostility towards women, and deviant sexual preferences. Regarding the clinical concerns about
hostility towards women, the trial court recounted defendant’s prior statements that all women
were “hookers” and only good for taking money and having sex. The court stressed that there was
nothing in the record to indicate that his attitude toward women had changed. After balancing all
of the factors, the court granted the prosecution’s motion to sentence defendant to a term of LWOP.

After the court sentenced defendant to a sentence of LWOP, he moved for a new hearing
on the basis of his counsel providing ineffective assistance. Defendant argued that he received
ineffective assistance (1) when counsel failed to object to Officer Howe’s testimony and (2) when
counsel failed to offer into evidence a polygraph result of a witness who testified at the initial trial.
The trial court denied the motion, ruling that defendant could not prove the requisite prejudice.

II. MILLER FACTORS

Defendant argues that the trial court erred when it resentenced him to LWOP. Because the
trial court made errors in its analysis, we remand to allow the court to analyze under the proper
framework.

A trial court’s decision to impose a LWOP sentence on a juvenile offender is reviewed for
an abuse of discretion.” Taylor, 510 Mich at 128. A court abuses its discretion when it selects an
outcome that falls outside the range of reasonable and principled outcomes. People v Babcock,
469 Mich 247, 269; 666 NW2d 231 (2003). But a court’s underlying factual findings are reviewed
for clear error. Taylor, 510 Mich at 128. A court clearly errs when a reviewing court is left with
a definite and firm conviction that a mistake was made. People v McChester, 310 Mich App 354,
358; 873 NW2d 646 (2015).

The United States Supreme Court has held that mandatory life without parole for those
under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition against
cruel and unusual punishments. Miller, 567 US at 465.7 To address this constitutional deficiency,
the Michigan Legislature enacted a scheme for such juvenile offenders who would otherwise be
subject to mandatory LWOP sentences. Under this scheme, sentencing courts are to consider the
following Miller factors:

(1) the juvenile’s “chronological age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and consequences”; (2) the
juvenile’s family and home environment—“from which he cannot usually extricate
himself—no matter how brutal or dysfunctional”; (3) “the circumstances of the

7
The Michigan Supreme Court has extended this principle under the Michigan Constitution to
offenders who were under the age of 21 at the time their crimes were committed. People v
Montario Taylor, ___ Mich ___; ___ NW3d ___; ___ NW3d ___ (2025) (Docket Nos. 166428
and 166654); People v Parks, 510 Mich 225, 254-255, 268; 987 NW2d 161 (2022).

-5-
homicide offense, including the extent of his participation in the conduct and the
way familial and peer pressures may have affected him”; (4) “the incompetencies
of youth,” which affect whether the juvenile might have been charged with and
convicted of a lesser crime, for example, because the juvenile was unable to deal
with law enforcement or prosecutors or because the juvenile did not have the
capacity to assist their attorney in their own defense; and (5) the juvenile’s
“possibility of rehabilitation.” [Taylor, 510 Mich at 126, quoting Miller, 567 US
at 477-478.]

There is a rebuttable presumption that a LWOP sentence is disproportionate, and the prosecution
has the burden to overcome this presumption by clear and convincing evidence. Taylor, 510 Mich
at 120. Under this scheme, if the prosecutor requests LWOP, the trial court must hold a hearing
to consider the five Miller factors and other relevant criteria, including the defendant’s record
while incarcerated. MCL 769.25(6). While the Miller factors are mitigating factors,8 Taylor, 510
Mich at 139 n 25, citing People v Skinner, 502 Mich 89, 115; 917 NW2d 292 (2020), the court
must also consider any aggravating circumstances, MCL 769.25(7).

Regarding the first Miller factor, which pertains to defendant’s age, the court found that
the factor was a mitigating factor because defendant was 16 years old at the time of the murder.
Defendant does not challenge the court’s treatment of this factor. Indeed, because the evidence
shows that a person’s brain does not fully develop until around the age of 25, it was not
unreasonable for the court to categorize this factor as “mitigating.”

Defendant also does not challenge the court’s treatment of the second Miller factor, which
pertains to the juvenile’s family and home environment, from which he cannot extricate himself.
Because of the abuse defendant suffered as a child, the court also considered this factor as
mitigating.

The third Miller factor addresses “the circumstances of the homicide offense, including the
extent of his participation in the conduct and the way familial and peer pressures may have affected
him.” The court found no facts to show that the circumstances of the offense demonstrated that
there should be a mitigation against a LWOP sentence. The court specifically found that defendant

was the only person who has committed this crime. He, alone, is responsible for
the crime, and there was 100 percent participation by him, both in the luring of the
child, the sexual assault of the child, and the beating of the child. He was not
influenced by familial or peer pressures in this particular offense.

Defendant avers that this factor should have been considered as mitigating because he was sexually
abused as a child, which Mendel suggested allowed this crime to happen. The court specifically
acknowledged this abuse but did not find that it was sufficient to override the prevailing aspect of
defendant acting alone with no familial or peer pressures; it therefore found this factor to be

8
Indeed, because the Miller factors are mitigating factors, if a particular factor does not militate
against a LWOP sentence, then the most it can be considered is neutral. Taylor, 510 Mich at 139
n 25.

-6-
neutral. Because the record shows that defendant did in fact act alone and acted without any
pressure from his family or peers, the trial court did not clearly err by finding that this factor was
neutral.

The fourth Miller factor addresses a defendant’s ability to navigate the court system and
whether he may have been charged with or convicted of a lesser offense were it not for the
“incompetencies associated with youth.” The trial court noted that there was no plea offer
available in this case. Thus, it was not a situation where a defendant, because of his impetuousness
or inexperience, improvidently rejects an offer and decides to “roll the dice” at trial. The court
also recognized that when defendant was interviewed by the police, he was “very able to attempt
to assist himself by painting the offense in a way that made him be shown in a light more favorable
to the police.” The court also found that defendant had “an excellent awareness of the legal
system.” As a result, the court found this factor to be neutral.

Defendant maintains that the court erred because the record shows that, purportedly
because of his distrust of adults, he never asked for an attorney or parent before speaking with the
police. First, it is not apparent from the record that defendant’s decision to not ask for an attorney
or parent was the result of a “distrust of adults.” Second, defendant cites no caselaw that stands
for the proposition that the failure to ask for an attorney or parent conclusively renders this factor
as mitigating. This Court is well aware that many adults also agree to be interviewed by the police
without the presence of an attorney. Moreover, while defendant’s interview with the police, in
which he admitted to killing and sexually penetrating Nicole, was important evidence against him
at trial, it was not the only evidence. Significantly, there also was a confession to his friend that
was admitted into evidence and evidence that the impressions of defendant’s boots were consistent
with the footprints that were left where Nicole was buried. Consequently, we are not left with a
definite and firm conviction that the trial court made a mistake with its findings related to this
factor.9

For the fifth factor, which addresses the defendant’s “possibility of rehabilitation,”
defendant argues that the trial court erred in weighing this factor as neutral because he is in fact
rehabilitated. In support, defendant relies on the undisputed evidence that he was a model prisoner
for the previous 29 years. The trial court recognized that defendant had indeed improved himself
while in prison and for all intents and purposes was a model prisoner.10 But the court also had

9
We also note that defendant’s youth somewhat inured to his benefit because it resulted in the
vacation of all the other convictions against him, including convictions of kidnapping and first-
degree criminal sexual assault.
10
While defendant’s time in prison was free of violent behavior, it might not be accurate to paint
this as being attributable to him being rehabilitated. Defendant was born prematurely and always
had a relatively small or slight build. Defendant was 5’ 2” when he killed Nicole, and his current
height is 5’ 4”. Further, because of a staph infection in his hip, defendant underwent four surgeries
when he was an infant. As a consequence of those procedures, one of defendant’s legs is
significantly longer than the other, which causes him to walk with a marked limp. Being
undoubtedly one of the smallest people in prison, not to mention having a disability that affects

-7-
many concerns related to defendant’s possibility of rehabilitation that outweighed this positive
behavior. The court was concerned about (1) the fact that defendant has consistently failed to
acknowledge the predatory nature of his conduct and (2) his history of violent behavior, including
using cats to bait dogs and almost killing someone before.11

Notably, as defendant identifies, the trial court relied on the fact that defendant has failed
to acknowledge his conduct for both finding that this fifth Miller factor is neutral and as an
aggravating factor. This is not permissible because all of the Miller factors are mitigating factors,
such that if any is not mitigating, at most, it will be considered “neutral.” Taylor, 510 Mich at 139
n 25. The trial court’s treatment of defendant’s failure to fully take responsibility for his actions
as being related to the fifth Miller factor and an aggravating factor, therefore, is erroneous.

The question then becomes where defendant’s failure to take full responsibility should best
be addressed. Does it belong in the fifth Miller factor or should it be considered a separate
aggravating factor? Importantly, the fifth Miller factor is not whether a defendant is in fact fully
rehabilitated—it is whether the defendant has the potential for rehabilitation. See id. at 126 (stating
that the fifth factor is the juvenile’s “possibility” of rehabilitation). We conclude that defendant’s
failure to take full responsibility belongs with this fifth factor. If someone cannot fully accept or
acknowledge what he did, then it becomes evident that he will have a diminished capability at
rehabilitation. See People v Harns, 227 Mich App 573, 579; 576 NW2d 700 (1998) (noting, in a
different context, that the Legislature reasoned that “a key factor in rehabilitation is the defendant’s
willingness to accept responsibility for his conduct”), vacated in part on other grounds 459 Mich
895 (1998); People v Draper, 150 Mich App 481, 490; 389 NW2d 89 (1986) (approving of the
trial court’s conclusion that the failure to accept responsibility for criminal conduct negatively
affects the potential for rehabilitation). Therefore, the trial court properly considered defendant’s
failure to take full responsibility for all of his actions as negatively affecting his potential for
rehabilitation.12

Defendant also challenges the court’s finding that he failed to accept responsibility for his
actions. The court noted that even when recently discussing the murder with Mendel, defendant
“didn’t say anything about luring the child into the basement” and indicated that he attempted to
“comfort her” after the sexual assault. The court noted that nowhere else in the record was there
any indication that defendant attempted to “comfort” Nicole. Although defendant told Mendel
that it would never happen again because of how he now understands the value of human life, due

his mobility, it would not be very prudent of defendant to get into many physical altercations.
Thus, while it is definitely a positive sign that defendant has behaved well in prison, it also may
be somewhat attributable to him not having smaller people to dominate or combat, such as when
he brutally raped and killed five-year-old Nicole.
11
During defendant’s interview with the police, he admitted that he had tried to kill someone else
before, but his brother pulled him off the other person before he could finish the act.
12
Importantly, as noted earlier, this minimization was not limited to when defendant was a minor;
it was evident right before this Miller hearing when defendant could not fully explain to Mendel
how Nicole ended up in the basement or why he committed the crime.

-8-
to the various inconsistencies between what was presented in the original trial and how defendant
presented the circumstances of the crime to Mendel, the court questioned defendant’s credibility
with Mendel. The court further relied on a 2013 COMPAS report and a 2020 Michigan
Department of Corrections (MDOC) sex-offender risk assessment for its view that defendant
continues to downplay his actions.

The court’s finding that defendant has failed to fully acknowledge his actions is not clearly
erroneous. Defendant asserts that his statements to Mendel show that he did take responsibility
for his actions. But, as the trial court noted, defendant could not explain to Mendel the actual
circumstances of how Nicole got to the basement. Although defendant indicated to Mendel that
he took responsibility, his failure to fully describe his actions says otherwise. Consequently, we
are not left with a definite and firm conviction that the court made a mistake.

The other aspect that the trial court considered as adversely affecting defendant’s ability to
be rehabilitated was his violent past. However, there is no apparent nexus between one’s violent
past (especially as a child or adolescent) and the ability of that person to later become rehabilitated
as an adult. Indeed, Mendel opined that the nature of defendant’s behavior was not relevant for
his ability to be rehabilitated.13 Accordingly, the trial court improperly considered defendant’s
violent past as indicative of his inability to be rehabilitated.

Therefore, because the trial court erroneously considered defendant’s past in context with
the fifth Miller factor, we remand for resentencing to allow the trial court to analyze this factor
absent the inappropriate component.

Defendant also argues that the trial court erred by relying on other facts when determining
that this fifth factor was neutral. Defendant avers that the court improperly relied on the fact that
the crime was premediated and violent. Defendant misconstrues what the court was saying. The
court was only concerned about the fact that defendant has “failed to take acknowledgment of the
predatory nature of his conduct”; in recounting the circumstances of the crime, the court simply
was showing how he had acted with premeditation. But the court’s concern was not that there was
premeditation but, rather, that there was no acknowledgement of that premeditation.

Consistent with MCL 769.25(7), the trial court also considered aggravating factors. The
court identified only two aggravating factors: (1) defendant’s failure to fully acknowledge his
conduct and (2) defendant’s continued hostility toward women.14 Regarding the first aggravating
factor, as previously noted, we agree with defendant that a court abuses its discretion when it treats
a Miller factor as an aggravating factor. See Taylor, 510 Mich at 139 n 25. Therefore, as discussed
previously, defendant’s failure to acknowledge his conduct should not be considered an
aggravating factor.

13
Notably, the prosecution did not present an expert of its own to offer a contrary opinion.
14
While the court mentioned several different facts when it was discussing the aggravating factors,
a fair reading of the court’s decision shows that those other facts were cited to support the existence
of these two factors.

-9-
The trial court also found as an aggravating factor defendant’s emotional identification
with children, hostility towards women, and deviant sexual preferences. Defendant’s prior actions
as a child—including calling all women hookers who were good for nothing besides sex—and the
more recent 2020 MDOC report reflecting that these areas remain areas of “some clinical concern,”
demonstrate that the trial court’s findings are not clearly erroneous.

In sum, the trial court erroneously considered defendant’s unwillingness to fully accept
responsibility as an aggravating factor when it should only have been considered under the fifth
Miller factor as a mitigating factor. The court further considered defendant’s violent past under
that fifth Miller factor, which is not appropriate. Accordingly, we remand for reconsideration
under this proper framework.15

III. MOTION FOR INVOLUNTARY DISMISSAL

Defendant argues that the trial court erred when it denied his motion for involuntary
dismissal under MCR 2.504(B)(2). We disagree. A trial court’s decision on a motion to dismiss
under MCR 2.504(B)(2) is reviewed de novo, but the facts supporting that determination are
reviewed for clear error. Samuel D Begola Servs, Inc v Wild Bros, 210 Mich App 636, 639; 534
NW2d 217 (1995).

MCR 2.504(B)(2) provides:

In an action, claim, or hearing tried without a jury, after the presentation of
the plaintiff’s evidence, the court, on its own initiative, may dismiss, or the
defendant, without waiving the defendant’s right to offer evidence if the motion is
not granted, may move for dismissal on the ground that on the facts and the law,
the plaintiff has no right to relief. The court may then determine the facts and render
judgment against the plaintiff, or may decline to render judgment until the close of
all the evidence. If the court renders judgment on the merits against the plaintiff,
the court shall make findings as provided in MCR 2.517.

Assuming without deciding that this rule applies in the context of a Miller hearing, “[t]he
involuntary dismissal of an action is appropriate where the trial court, when sitting as the finder of
fact, is satisfied at the close of the plaintiff’s evidence that on the facts and the law the plaintiff has
shown no right to relief.” Samuel D Begola, 210 Mich App at 639 (quotation marks and citation
omitted). It is akin to a motion for directed verdict when the matter is before a jury. Id.

When moving for dismissal under this rule, defense counsel claimed that the prosecution
failed to meet its burden to rebut the presumption that a sentence of LWOP is not appropriate.
Defense counsel averred that “[t]hey have solely relied on the horrific facts of [defendant’s]
crime.” While the heinousness of the crime was indeed the focus of the prosecution’s live
witnesses at the Miller hearing, there was other evidence admitted that did not relate to the

15
To be clear, our holding does not preclude the trial court from finding that the fifth Miller factor
is neutral on remand or that defendant ultimately should be sentenced to LWOP. We simply point
out the court’s errors to allow it to perform a proper analysis.

-10-
heinousness of the crime and instead related to defendant’s more recent behavior, including
defendant’s misconduct report while imprisoned the previous 29 years. Indeed, at the time defense
counsel moved for involuntary dismissal, all of the parties’ exhibits—including defendants’—had
been admitted into evidence. Thus, that evidence is properly considered as well. See Auto Club
Ins Ass’n v Gen Motors Corp, 217 Mich App 594, 603; 552 NW2d 523 (1996) (“[T]he court
examines all the evidence presented up to the time of the motion . . . .”). It is from those exhibits
that the trial court was allowed to find that defendant has continued to fail to take responsibility
for his actions and that there were present concerns regarding defendant’s emotional identification
with children, his hostility toward women, and his deviant sexual preference. Because these facts,
among others, address some of the Miller and aggravating factors, the trial court did not err by
denying defendant’s motion to dismiss.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that he was denied the effective assistance of counsel at the Miller
hearing (1) when counsel failed to object to Howe’s testimony and (2) when counsel failed to offer
into evidence a polygraph result of a witness who testified at the initial trial. We disagree.

The determination whether a defendant has been deprived of the effective assistance of
counsel presents a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich
575, 579; 640 NW2d 246 (2002). The court must first find the facts and then decide whether those
facts constitute a violation of the defendant’s constitutional right to effective assistance of counsel.
Id. The trial court’s factual findings are reviewed for clear error, while its constitutional
determinations are reviewed de novo. Id.

Defendants have the guaranteed right to the effective assistance of counsel. Strickland v
Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Aceval, 282 Mich
App 379, 386; 764 NW2d 285 (2009). Effective assistance of counsel is presumed, and the
defendant bears a heavy burden of proving otherwise. LeBlanc, 465 Mich at 578. Generally, to
establish a claim of ineffective assistance, a defendant must show that (1) counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms and (2)
there is a reasonable probability that, but for counsel’s error, the result of the proceedings would
have been different. People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). However,
such performance must be measured without the benefit of hindsight. People v LaVearn, 448 Mich
207, 216; 528 NW2d 721 (1995).

Regarding Howe’s testimony, defendant takes exception to the portion where Howe opined
the following:

[T]his type of crime is nearly impossible to restore a person to being able to be out
in public without extensive therapy, without extensive work. And not having any
knowledge of what the suspect in this case has gone through, . . . my understanding
is it’s next to impossible to commit this type of crime and have sufficient remorse
that you could regain . . . your place in society.

Although Howe was an evidence technician in the Battle Creek Police Department at the time the
crime occurred, he had been a clinical psychiatric specialist in the military. Howe explained that

-11-
he received his psychological training in the early 1970s. Notably, Howe was never admitted as
an expert witness.

When denying defendant’s motion for a new hearing on the basis of counsel’s failure to
object to Howe’s testimony, the trial court stated the following:

Because this was in front of a judge, myself, I was able to suss out what was
appropriate whether the person had actually been qualified as an expert and whether
or not that there had been sufficient time to put that request to have them testify as
an expert on notice and sufficient voir dire as to their credentials.

In this instance even though Mr. Howe did offer some opinion testimony,
he was considered by the Court as a fact witness. I know that questions were asked.
I did not in my finding in this case consider him to be an expert or use his opinions
as part of the basis for my decision. [Emphasis added.]

Thus, because the record is clear that the court did not rely on any of Howe’s opinion testimony,
defendant cannot establish the requisite prejudice to prove his claim of ineffective assistance of
counsel.16 In other words, because the trial court did not rely on Howe’s opinions, there is no
possibility—let alone a reasonable probability—that the outcome would have been different but
for counsel’s failure to object to the testimony.17

Regarding defendant’s other argument, it implicates the trial testimony of Joseph Mocko.
At trial, Mocko stated that defendant admitted to him to having sex with and killing Nicole.
Specifically, Mocko relayed that defendant said that he “took” Nicole into the house and that as
he was “doing her,”18 she started to scream. In an attempt to quiet Nicole, defendant said he tried
to put his hand over her mouth, and when that did not work, he hit her in the head a couple of
times. According to Mocko, defendant said that he left Nicole and returned later to see if she was
okay and that he “didn’t mean to do it.”

Almost a year before trial, Mocko was examined by a polygraph specialist with the
Michigan State Police. The polygraph report stated the following, in pertinent part:

Test questions:

1. Did you ever sexually touch Nicole in any way?

16
If it is easier to dispose of a constitutional claim of ineffective assistance of counsel on the
ground of a lack of prejudice, that course should be followed. Strickland, 466 US at 697.
17
Defendant on appeal does not even attempt to explain, with the court establishing that it did not
rely on Howe’s testimony, how there was a reasonable probability of a different outcome had
counsel objected.
18
Mocko surmised that defendant’s reference to “doing her” was analogous to having sex with
her.

-12-
2. Did you do anything to cause the death of Nicole?

3. Is [defendant] telling the truth when he says that you helped him with
the death of Nicole?

4. Were you present when Nicole died?

5. Are you now lying about [defendant] telling you that he killed Nicole?

THE EXAMINEE ANSWERED NO TO EACH OF THE ABOVE QUESTIONS

It is the opinion of the undersigned examiner based upon the examination given
that this subject is not being truthful regarding this issue.

[All-caps formatting in questions altered.]

The trial court again ruled that the polygraph report would not have affected its ruling. The
court first noted that it considered the general effectiveness of polygraph testing to be suspect and
that such testing does not have strong evidentiary value. The court further recognized that the
report was unclear because the it did not specify which of the five questions Mocko purportedly
answered deceitfully. The court stated:

Given the fact that he failed or ended up showing evidence of deceit in a polygraph
examination doesn’t necessarily change the Court’s mind as it relates to the
testimony of Mr. Mocko nor in fact is that the only evidence of premeditation in
this case. There is a large amount of at least circumstantial evidence that this was
a premeditated offense and does not change the Court’s opinion as to my finding at
the time of the evidentiary hearing.

So I don’t find that there was anything in the record that’s been brought up
in this motion that would have changed my finding that Mr. Symonds should be
sentenced to life without parole.

Defendant again does not explain, in light of the trial court explicitly ruling that the
evidence would not have affected its decision, how he can establish the necessary prejudice.
Significantly, this is not a situation where we, as a reviewing court, have to surmise how a jury
might react had certain evidence been introduced at trial; instead, the trial court was the one
considering the evidence, and the record is clear that had the court received evidence of the
polygraph test, it would not have affected the its decision. As before, defendant has failed to show
how, assuming counsel’s performance fell below an objective standard of reasonableness, that
there was a reasonable probability that the outcome would have been different had the evidence
been submitted.

-13-
V. CATEGORICAL BAR OF LWOP SENTENCE

Defendant in his Standard 4 brief argues that the trial court erred by rejecting his argument
that a sentence of LWOP for a person who was a juvenile at the time he committed the crime is
barred by Michigan’s Constitution.19 We disagree.

Before the Miller hearing took place, defendant argued that Michigan’s Constitution, which
provides broader protections than the United States Constitution,20 categorically bars the
imposition of sentences of LWOP on people who were juveniles at the time they committed their
crimes. In the motion, defendant acknowledged that the Michigan Supreme Court in People v
Carp, 496 Mich 440; 852 NW2d 801 (2014), vacated sub nom on other grounds Carp v Michigan,
577 US 1186; 136 S Ct 1355; 194 L Ed 2d 339 (2016), already had ruled that the Michigan
Constitution did not impose such a bar.21 Defendant averred that the Carp ruling was erroneous.

19
While Miller and its progeny stand for the proposition that mandatory sentences of LWOP are
unconstitutional when imposed on offenders who were minors whey they committed their crimes,
defendant’s position is that any sentence of LWOP is unconstitutional for those offenders.
20
Because the United States Constitution prohibits “cruel and unusual punishments,” US Const,
Am VIII (emphasis added), while the Michigan Constitution prohibits “cruel or unusual
punishment, Const 1963, art 1, § 16 (emphasis added), the Michigan Supreme Court has
interpreted our state constitution as providing broader protection than the federal counterpart.
Taylor, 510 Mich at 124 n 9.
21
The Michigan Supreme Court had two pertinent holdings in its opinion: (1) Miller, as a new
procedural rule, was to be applied prospectively, and (2) Michigan’s constitution does not
categorically bar LWOP sentences for minors. Carp, 496 Mich at 528. The Unites States Supreme
Court, when it vacated that judgment, remanded to the Michigan Supreme Court “for further
consideration in light of Montgomery[, 577 US 190].” Carp, 577 US at 1186. Although the United
States Supreme Court’s order purported to vacate the judgment in its entirety, there is no principled
reason to think that was the case. The United States Supreme Court has no authority to interpret a
state’s constitution and therefore had no reason (let alone the authority) to disturb anything other
than the federal issues the Michigan Supreme Court addressed. See US Const, art III, § 2; Dep’t
of Mental Hygiene of California v Kirchner, 380 US 194, 197-198; 85 S Ct 871; 13 L Ed 2d 753
(1965) (stating that the Court would not have jurisdiction to hear a case resolved solely on state-
law grounds); Minnesota v Nat’l Tea Co, 309 US 551, 557; 60 S Ct 676; 84 L Ed 920 (1940) (“It
is fundamental that state courts be left free and unfettered by us in interpreting their state
constitutions.”). Further, Montgomery simply held that Miller constituted a substantive rule of
constitutional law that is to be applied retroactively. Montgomery, 577 US at 212. That opinion
has no applicability on our Supreme Court’s holding related to whether Michigan’s constitution
categorically bars LWOP sentences for minors. As such, the Michigan Supreme Court’s decision
in Carp regarding our state’s constitution remains good law, despite the general language used in
the United States Supreme Court’s order. See also Montario Taylor, ___ Mich at ___ n 2; slip op
at 4 n 2 (CLEMENT, C.J., dissenting) (“Carp’s holding that the imposition of LWOP on a juvenile
offender does not violate Const 1963, art 1, § 16 still stands.”); People v Taylor (On Remand),
unpublished per curiam opinion of the Court of Appeals, issued March 9, 2023 (Docket No.

-14-
In the ensuing motion hearing, defense counsel conceded that the current state of the law did not
support her position and noted that she was raising the issue simply to preserve the issue for
appellate relief.

In his Standard 4 brief, defendant substantially copies word-for-word the same verbiage
from his counsel’s prior motion, including the acknowledgment of Carp’s holding. Notably, on
appeal, he does not explain how the trial court erred by denying his request for a categorical bar
when counsel conceded in the trial court that the current state of the law did not support her
position. Because counsel acknowledged in the trial court that the current interpretation of
Michigan’s constitution does not support a categorical bar on LWOP sentences for minors, we fail
to see how defendant is entitled to any relief. To the extent defendant’s position on appeal can be
viewed as a request for this Court to rule contrary to our Supreme Court’s Carp opinion, he has
identified no authority allowing this Court to do so. Indeed, it is well established that this Court
is to follow prior decisions of the Supreme Court even if those opinions have become obsolete,
State Treasurer v Sprague, 284 Mich App 235, 242; 772 NW2d 452 (2009), and even if this Court
anticipates that our Supreme Court will change the law, People v Mitchell, 428 Mich 364, 369-
370; 408 NW2d 798 (1987). Accordingly, like the trial court, we also reject defendant’s argument.

VI. CONCLUSION

The trial court erred in its analysis of the Miller factors. First, the court erroneously
considered defendant’s violent past as being indicative of his ability to be rehabilitated. Second,
the court erroneously considered defendant’s continued failure to take full responsibility for his
actions as an aggravating factor when it only applies to the fifth Miller factor. We therefore vacate
defendant’s sentence and remand for the trial court to reevaluate its analysis under the proper
framework. We retain jurisdiction.

/s/ Michelle M. Rick
/s/ Colleen A. O’Brien
/s/ Allie Greenleaf Maldonado

325834), p 11 (noting that Carp was only vacated with respect to its ruling related to the
retroactivity of Miller).

-15-
Court of Appeals, State of Michigan

ORDER
Michelle M. Rick
PEOPLE OF MI V JASON BENJAMIN SYMONDS Presiding Judge

Docket No. 366966 Colleen A. O'Brien

LC No. 1994-003085-FC Allie Greenleaf Maldonado
Judges

For the reasons stated in the opinion issued with this order, we REMAND this case for
further proceedings. We retain jurisdiction. After the remand proceedings conclude, we will review the
decisions that the trial court made during those proceedings and consider any remaining issues in this
appeal. Any challenges to the trial court’s decisions on remand must be raised in this appeal. Therefore,
the parties and the trial court must not initiate a new appeal from an order entered on remand within the
scope of this appeal. The Clerk of the Court is directed to reject the initiation of a new appeal from such
an order.

Appellant must initiate the proceedings on remand within 28 days of the Clerk’s
certification of this order, and the trial court must prioritize this matter until the proceedings are concluded.
As stated in the accompanying opinion, we vacate defendant’s sentence and remand for the trial court to
reevaluate its analysis under the proper framework. The proceedings on remand are limited to this issue.

The parties must serve copies of their filings in the trial court on this Court. Appellant
must file with this Court copies of all orders entered on remand within seven days of entry.

Appellant must ensure the transcript of all proceedings on remand is filed in the trial court
and this Court within 21 days after completion of the proceedings.

_______________________________
Presiding Judge

A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on

November 25, 2025
Date Chief Clerk

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11218811. Public record. Not legal advice.