People v. Skinner

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

August 20, 2015

Plaintiff-Appellee, 9:05 a.m.

v No. 317892

St. Clair Circuit Court

TIA MARIE-MITCHELL SKINNER, LC No. 10-002936-FC

Defendant-Appellant.

Before: HOEKSTRA, P.J., and SAWYER and BORRELLO, JJ.

BORRELLO, J.

This case presents a constitutional issue of first impression as to whether the Sixth

Amendment mandates that a jury make the findings set forth by Miller v Alabama, 576 US ___;

132 S Ct 2455; 183 L Ed 2d 407 (2012) as codified in MCL 769.25(6), before sentencing a

juvenile homicide offender to life imprisonment without the possibility of parole. We find that

the Sixth Amendment mandates that juveniles convicted of homicide who face the possibility of

a sentence of life without the possibility of parole have a right to have their sentence determined

by a jury. In so finding, we expressly reserve the issue of whether this defendant should receive

the penalty of life in prison without the possibility of parole for a jury. In this case, defendant

requested and was denied her right to have a jury decide her sentence. Accordingly, we vacate

her sentence for first-degree murder and remand for resentencing on that offense consistent with

this opinion.

I. BACKGROUND

In November 2010, at the age of 17, defendant arranged to have her parents Paul Skinner

and Mara Skinner murdered. Specifically,

The victims, defendant’s parents, were viciously attacked in their bed in

November 2010. Defendant’s father was killed in the attack and defendant’s

mother suffered roughly 25 stab wounds. An investigation led to Jonathan Kurtz,

defendant’s boyfriend, and James Preston. The investigation also led to the

discovery of a map of the neighborhood and a note containing tips on how to

break into defendant’s house and commit the murders. Cell phone records

revealed text messages between defendant, Kurtz, and Preston that indicated that

the crime had been planned by all three. During an interview with police,

defendant implicated Preston, then implicated Kurtz and Preston, and then

-1-

admitted that she had talked to Kurtz about killing her parents. Defendant said

that Kurtz was going to seek Preston’s help. [People v Skinner, unpublished

opinion per curiam of the Court of Appeals, issued February 21, 2013 (Docket

No. 306903) (slip op at 1).]

Defendant was charged in connection with the attacks and, following a trial, a jury

convicted her of first-degree premeditated murder, MCL 750.316(1)(a), attempted murder, MCL

750.91, and conspiracy to commit murder, MCL 750.157a. On September 16, 2011, the trial

court sentenced defendant to mandatory life without parole for the first-degree murder

conviction, and life sentences each for the attempted murder and conspiracy to commit murder

convictions. Defendant appealed her convictions and sentences.

While defendant’s appeal was pending, on June 25, 2012, the United States Supreme

Court decided Miller, 576 US at ___, wherein the Court held that mandatory life without parole

sentences for juvenile offenders violated the Eighth Amendment. Subsequently, this Court

affirmed defendant’s convictions and life sentences for attempted murder and conspiracy, but

remanded for resentencing on defendant’s first-degree murder conviction to consider the factors

set forth in Miller.1

On July 11, 2013, the trial court held a resentencing hearing and again sentenced

defendant to life without parole for the first-degree murder conviction. Defendant again

appealed her sentence. While defendant’s appeal was pending, on March 4, 2014, MCL 769.25

took effect, which was enacted in response to Miller and established a framework for imposing a

life without parole sentence upon a juvenile convicted of, inter alia, first-degree murder.

Meanwhile, this Court ordered defendant’s appeal held in abeyance pending our Supreme

Court’s decision in People v Carp, 496 Mich 440; 852 NW2d 801 (2014), which concerned the

retroactivity of Miller. Following the decision in Carp, this Court remanded the case to the trial

court for a second resentencing—third sentencing—hearing to be conducted in accordance with

MCL 769.25; this Court retained jurisdiction.2

On second remand, defendant moved to impanel a jury, arguing that a jury should make

the factual findings mandated by MCL 769.25(6) at the resentencing hearing. The trial court

denied defendant’s motion and this Court denied defendant’s emergency application for leave to

appeal that order.3 Thereafter, the trial court held the second resentencing hearing on September

18, September 19, and September 24, 2014, and, after hearing evidence from both defendant and

the prosecution, the court again sentenced defendant to life without parole for the first-degree

murder conviction. Defendant now appeals that sentence as of right, arguing, inter alia, that

1

People v Skinner, unpublished opinion per curiam of the Court of Appeals, issued February 21,

2013 (Docket No. 306903).

2

People v Skinner, unpublished order of the Court of Appeals, entered July 30, 2014 (Docket

No. 317892).

3

People v Skinner, unpublished order of the Court of Appeals, entered September 17, 2014

(Docket No. 323509).

-2-

MCL 769.25 violates her Sixth Amendment right to a jury because it exposes her to a harsher

penalty than was otherwise authorized by the jury verdict.

II. STANDARD OF REVIEW

We review constitutional issues de novo. People v Nutt, 469 Mich 565, 574; 677 NW2d

1 (2004). Issues of statutory construction are also reviewed de novo. People v Williams, 483

Mich 226, 232; 769 NW2d 605 (2009).

III. GOVERNING LAW

This case brings us to the intersection of the Sixth and Eighth Amendments to the United

States Constitution. Specifically, the issue before us illustrates, following Miller, the interplay

between the Eighth Amendment’s limitations with respect to sentencing a juvenile to life

imprisonment without the possibility of parole and a juvenile’s right to a jury trial under the

Sixth Amendment. We proceed with a review of the seminal case of Miller before discussing

Miller’s impact on Michigan’s sentencing scheme; we then review relevant Supreme Court Sixth

Amendment jurisprudence before applying that precedent to Michigan’s post-Miller juvenile

sentencing scheme.

A. MILLER v ALABAMA

Miller is part of a line of growth in the Supreme Court’s Eighth Amendment

jurisprudence relative to juvenile offenders. This precedent, in part, can be traced back to

Thompson v Oklahoma, 487 US 815; 108 S Ct 2687; 101 L Ed 2d 702 (1988), wherein a

plurality of the Court held that the Eighth Amendment categorically barred “the execution of any

offender under the age of 16 at the time of the crime.” Roper v Simmons, 543 US 551, 561; 125

S Ct 1183; 161 L Ed 2d 1 (2005), citing Thompson, 487 US at 818-838. Subsequently, in Roper,

543 US at 551, the Court expanded on the rationale in the Thompson plurality and held that the

Eighth Amendment categorically barred imposition of the death penalty upon all juveniles under

the age of 18 irrespective of the offense. Id. at 568-578. The Court reasoned that “[c]apital

punishment must be limited to those offenders who commit a narrow category of the most

serious crimes and whose extreme culpability makes them the most deserving of execution.” Id.

at 568 (quotation marks and citations omitted). The Court reasoned that, because of the unique

differences between juveniles and adults, “juvenile offenders cannot with reliability be classified

among the worst offenders.” Id. at 569. In particular, the Court noted, juveniles exhibit “[a] lack

of maturity and underdeveloped sense of responsibility” that “often result[s] in impetuous and

ill-considered actions and decisions.” Id. (quotation marks and citations omitted). Additionally,

juveniles “are more vulnerable or susceptible to negative influences and outside pressures,

including peer pressure,” and “the character of a juvenile is not as well formed as that of an

adult.” Id. at 569-570. Thus, “neither retribution nor deterrence provides adequate justification

for imposing the death penalty on juvenile offenders. . . .” Id. at 572.

Following Roper, under the Eighth Amendment the maximum penalty that could be

imposed upon a juvenile offender was life imprisonment without the possibility of parole. The

Court further limited that form of punishment in Graham v Florida, 560 US 48; 130 S Ct 2011;

176 L Ed 2d 825 (2010), and Miller, 576 US at ____. Specifically, in Graham, the Court held

-3-

that the Eighth Amendment categorically barred a sentence of life without parole for juvenile

“nonhomicide offenders.” Graham, 560 US at 74. The Graham Court reasoned that juveniles

who “do not kill, intend to kill, or foresee that life will be taken are categorically less deserving

of the most serious forms of punishment. . . .” Id. at 69. The Court explained that, unlike “non-

homicide” offenses, homicide is unique with respect to its “moral depravity” and the injury it

inflicts upon its victim and the public and concluded, “[i]t follows that, when compared to an

adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral

culpability. The age of the offender and the nature of the crime each bear on the analysis.” Id. at

69. The Court proceeded to establish a bright-line categorical bar on life without parole

sentences for juvenile non-homicide offenders. Id. at 74. Although a state was not “required to

guarantee eventual freedom,” juveniles convicted of non-homicide offenses were to be afforded

“some meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation.” Id. at 75.

Building upon Roper and Graham, in Miller, the Supreme Court held that, irrespective of

the offense, mandatory life sentences without the possibility of parole for juvenile offenders

violated the Eighth Amendment. Miller, 132 S Ct at 2460. Given the unique characteristics of

juveniles, the Court reasoned, the Eighth Amendment required consideration of an offender’s

youthfulness during sentencing, something that mandatory sentencing schemes failed to do. Id.

at 2464-2466. The Court explained:

Most fundamentally, Graham insists that youth matters in determining the

appropriateness of a lifetime of incarceration without the possibility of parole. In

the circumstances there, juvenile status precluded a life-without-parole sentence,

even though an adult could receive it for a similar crime. And in other contexts as

well, the characteristics of youth, and the way they weaken rationales for

punishment, can render a life-without-parole sentence disproportionate . . . An

offender’s age, we made clear in Graham, is relevant to the Eighth Amendment,

and so criminal procedure laws that fail to take defendants’ youthfulness into

account at all would be flawed. [Id. at 2465-2466 (internal quotation marks and

citations omitted).]

Drawing from capital punishment cases, the Supreme Court reasoned that life without

parole sentences were analogous to capital punishment for juveniles and, therefore, the Eighth

Amendment mandated individualized sentencing for this particularly harsh form of punishment.

Id. at 2466-2467. The Miller Court referenced Woodson v North Carolina, 428 US 280; 96 S Ct

2987; 49 L Ed 2d 944 (1976), wherein the Supreme Court struck down a mandatory death

sentencing scheme because the scheme “gave no significance to the character and record of the

individual offender or the circumstances of the offense, and exclude[ed] from consideration . . .

the possibility of compassionate or mitigating factors.” Miller, 132 S Ct at 2467 (quotation

marks and citations omitted). Additionally, the Supreme Court noted that:

Subsequent decisions have elaborated on the requirement that capital

defendants have an opportunity to advance, and the judge or jury a chance to

assess, any mitigating factors, so that the death penalty is reserved only for the

most culpable defendants committing the most serious offenses. [Id. (citations

omitted).]

-4-

In the context of juveniles, the Supreme Court’s individualized sentencing jurisprudence

illustrated the importance that “a sentencer have the ability to consider the mitigating qualities of

youth,” in assessing culpability including, among other things, age, background and mental and

emotional development. Id. (quotation marks and citations omitted).

The Supreme Court concluded that “the Eighth Amendment forbids a sentencing scheme

that mandates life in prison without possibility of parole for juvenile offenders.” Id. at 2469.

However, the Supreme Court did not categorically bar life without parole sentences for juveniles

convicted of a homicide offense provided that the sentencer take into account “how children are

different, and how those differences counsel against irrevocably sentencing them to a lifetime in

prison.” Id. (footnote omitted). The Supreme Court cautioned that:

this harshest possible penalty will be uncommon. That is especially so

because of the great difficulty we noted in Roper and Graham of distinguishing at

this early age between ‘the juvenile offender whose crime reflects unfortunate yet

transient immaturity, and the rare juvenile offender whose crime reflects

irreparable corruption.’ [Id. at 424, quoting Roper, 543 US at 573 (emphasis

added).]

Thus, after Miller, mandatory life without parole sentences for juvenile offenders are

unconstitutional in all cases; however, in homicide cases, an individualized life without parole

sentence may be imposed where the crime reflects “irreparable corruption.” The Miller Court

did not establish a bright-line test to determine whether a juvenile’s crime reflects “irreparable

corruption;” instead, “Miller discussed a range of factors relevant to a sentencer’s determination

of whether a particular defendant is a ‘rare juvenile offender whose crime reflects irreparable

corruption.’” People v Gutierrez, 58 Cal 4th 1354, 1388; 171 Cal Rptr 3d 421; 324 P 3d 245

(2014), quoting Miller, 132 S Ct at 2469. Those factors were set forth as follows:

Mandatory life without parole for a juvenile precludes consideration of his

chronological age and its hallmark features—among them, immaturity,

impetuosity, and failure to appreciate risks and consequences. It prevents taking

into account the family and home environment that surrounds him—and from

which he cannot usually extricate himself—no matter how brutal or

dysfunctional. It neglects 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. Indeed, it ignores that he might have been

charged and convicted of a lesser offense if not for incompetencies associated

with youth—for example, his inability to deal with police officers or prosecutors

(including on a plea agreement) or his incapacity to assist his own attorneys . . .

And finally, this mandatory punishment disregards the possibility of rehabilitation

even when the circumstances most suggest it. [Miller, 132 S Ct at 2469.]

Miller, therefore, categorically barred mandatory life without parole sentences for

juveniles, but, in doing so, the Supreme Court also set forth a framework for imposing a life

without parole sentence when a juvenile’s homicide offense reflects “irreparable corruption.”

That is, the Supreme Court provided factors to be used during sentencing that serve as a

-5-

guidepost for determining whether a juvenile’s homicide offense reflects “irreparable

corruption.”

B. MICHIGAN’S SENTENCING SCHEME POST-MILLER

Miller had wide-ranging effect nationwide in that, with respect to juvenile offenders, it

invalidated state statutes that imposed mandatory life without parole sentences.4 In Michigan,

the Legislature enacted 2014 PA 22, codified at MCL 769.25 and MCL 769.25a5 in response to

Miller. Relevant to this case, MCL 769.25 provides in pertinent part:

(1) This section applies to a criminal defendant who was less than 18 years

of age at the time he or she committed an offense described in subsection (2) []

***

(2) The prosecuting attorney may file a motion under this section to

sentence a defendant described in subsection (1) to imprisonment for life without

the possibility of parole if the individual is or was convicted of any of the

following violations:

(b) A violation of . . . [MCL 750.316][6] []

4

See e.g. Russell, Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth

Amendment Rights, 56 B C L Rev 553, 583 (2015) (noting that, “in the mere two years since

Miller was decided, the decision has been cited in more than 1000 cases nationwide” and

“sixteen state legislatures have enacted statutes in response to Graham and Miller, and many

others are considering bills” (footnotes omitted).

5

MCL 769.25a concerns retroactivity of MCL 769.25 and it is not at issue in this case.

6

In addition to first-degree murder, MCL 769.25(2) provides that a prosecuting attorney may

move for a life without parole sentence for juveniles convicted of several other offenses

including MCL 333.17764(7); MCL 750.16(5); MCL 750.18; MCL 750.436(2)(e) and MCL

750.543f. The issue of whether these offenses constitute “homicide offenses” under Graham,

560 US at 48 and Miller, 576 US at___, for purposes of sentencing juvenile offenders to life

without parole is not before this Court. See e.g. Graham, 560 US at 50 (in categorically barring

life-without-parole sentences for juveniles convicted of “non homicide” offenses, the Court

noted that “because juveniles have lessened culpability they are less deserving of the most

serious forms of punishment . . . Moreover, defendants who do not kill, intend to kill, or foresee

that life will be taken are categorically less deserving of such punishments than are murderers.”)

(Emphasis added); see also Miller, 132 S Ct at 2475-2476 (BREYER, J., concurring) (stating that

“[g]iven Graham’s reasoning, the kinds of homicide that can subject a juvenile offender to life

without parole must exclude instances where the juvenile himself neither kills nor intends to kill

the victim”) (emphasis added). For purposes of this case, there is no dispute that premeditated

first-degree murder, of which defendant was convicted, constitutes a homicide offense that is

eligible for life without parole under Graham and Miller.

-6-

***

(3) If the prosecuting attorney intends to seek a sentence of imprisonment

for life without the possibility of parole for a case described . . . under subsection

(1)(b), the prosecuting attorney shall file the motion within 90 days after the

effective date of the amendatory act that added this section. The motion shall

specify the grounds on which the prosecuting attorney is requesting the court to

impose a sentence of imprisonment for life without the possibility of parole.

(4) If the prosecuting attorney does not file a motion under subsection (3)

within the time periods provided for in that subsection, the court shall sentence

the defendant to a term of years as provided in subsection (9).

***

(6) If the prosecuting attorney files a motion under subsection (2), the

court shall conduct a hearing on the motion as part of the sentencing process. At

the hearing, the trial court shall consider the factors listed in Miller v Alabama,

576 US _____; 183 L Ed 2d 407; 132 S Ct 2455 (2012), and may consider any

other criteria relevant to its decision, including the individual’s record while

incarcerated.

(7) At the hearing under subsection (6), the court shall specify on the

record the aggravating and mitigating circumstances considered by the court and

the court’s reasons supporting the sentence imposed. The court may consider

evidence presented at trial together with any evidence presented at the sentencing

hearing.

***

(9) If the court 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 shall be not less than 60 years and the

minimum term shall be not less than 25 years or more than 40 years. [] [Emphasis

added.]

This legislation “significantly altered Michigan’s sentencing scheme for juvenile

offenders convicted of crimes that had previously carried a sentence of life without parole.”

Carp, 496 Mich at 456. Specifically, under this new scheme,

Rather than imposing fixed sentences of life without parole on all

defendants convicted of violating MCL 750.316, MCL 769.25 now establishes a

default sentencing range for individuals who commit first-degree murder before

turning 18 years of age. Pursuant to the new law, absent a motion by the

prosecutor seeking a sentence of life without parole, the court shall sentence the

individual to a term of imprisonment for which the maximum term shall be not

less than 60 years and the minimum term shall be not less than 25 years or more

than 40 years.

-7-

When, however, the prosecutor does file a motion seeking a life-without-

parole sentence, the trial court “shall conduct a hearing on the motion as part of

the sentencing process” and “shall consider the factors listed in Miller v.

Alabama....” MCL 769.25(6). Accordingly, the sentencing of juvenile first-

degree-murder offenders now provides for the so-called “individualized

sentencing” procedures of Miller. [Id. at 458-459 (emphasis added) (citations

omitted).]

Thus, in response to Miller, and as explained in Carp, the Michigan Legislature created a

default sentence for juvenile defendants convicted of first-degree murder. The default sentence

is a term-of-years. See MCL 769.25(4) (providing that, absent the prosecution’s motion for a life

without parole sentence, “the court shall sentence the defendant to a term of years as provided in

subsection (9)” (emphasis added)). Alternatively, a life without parole sentence may be imposed

if the following framework is adhered to: (1) the prosecution timely files a motion seeking a life

without parole sentence, (2) the trial court holds a sentencing hearing, (3) at the hearing, the trial

court considers the factors listed in Miller, and “may” consider “any other criteria relevant to its

decision,” (4) the trial court specifies “the aggravating and mitigating circumstances considered

by the court and the court’s reasons supporting the sentence imposed,” and the court “may

consider evidence presented at trial together with any evidence presented at the sentencing

hearing.” See MCL 769.25 (emphasis added).

Defendant contends that this sentencing scheme violates her Sixth Amendment right to a

jury because it exposes her to a potential life without parole sentence, which is greater than the

sentence otherwise authorized by the jury verdict standing alone.

The Miller Court did not address the issue of who should decide whether a juvenile

offender should receive a life without parole sentence and we are unaware of any court that has

yet to address the issue. In the final paragraph of its opinion, the Court stated: “Graham, Roper,

and our individualized sentencing decisions make clear that a judge or jury must have the

opportunity to consider mitigating circumstances before imposing the harshest possible penalty

for juveniles.” Miller, 132 S Ct at 2475 (emphasis added). This passing reference to “judge or

jury” is not dispositive of the issue. “The Court’s decision in Miller does not discuss who is

empowered to make the sentencing decision that the case involves a ‘rare’ instance where the

juvenile is ‘irreparably corrupt’ and may be sentenced to life without parole.” Russell, Jury

Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights, 56 BC L Rev

553, 569 (2015). Instead, “Miller generally avoids the issue by referencing the ‘sentencer’

throughout the opinion, rather than specifying a judge or a jury.” Id. Moreover, “[b]ecause

Sixth Amendment jury rights can be waived, Miller’s reference to the judge as a possible

sentencer is hardly dispositive.” Id. (footnote omitted). Indeed, in declining to address this

issue, 7 in Carp our Supreme Court noted that, given recent Sixth Amendment jurisprudence,

7

In Carp, our Supreme Court noted “[a]s none of the defendants before this Court asserts that his

sentence is deficient because it was not the product of a jury determination, we find it

unnecessary to further opine on this issue and leave it to another day to determine whether the

individualized sentencing procedures required by Miller must be performed by a jury in light of

-8-

“Miller’s reference to individualized sentencing being performed by a ‘judge or jury’ might

merely be instructive on the issue but not dispositive.” Carp, 496 Mich at 491 n 20.

Because Miller did not directly address the issue of who decides a life sentence without

the possibility of parole, and because there is no case law on point, we turn to the United States

Supreme Court’s relevant Sixth Amendment jurisprudence for guidance.

C. SIXTH AMENDMENT RIGHT TO A JURY

In relevant part, the Sixth Amendment to the United States Constitution provides: “In all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been committed. . . .” US

Const, Am VI. The rights afforded under the Sixth Amendment are incorporated to the states by

the Due Process Clause of the Fourteenth Amendment. Presley v Georgia, 558 US 209, 211-

212; 130 S Ct 721; 175 L Ed 2d 675 (2010). “Taken together, these rights indisputably entitle a

criminal defendant to a jury determination that [he] is guilty of every element of the crime with

which he is charged, beyond a reasonable doubt,” Apprendi v New Jersey, 530 US 466, 477; 120

S Ct 2348; 147 L Ed 2d 435 (2000) (quotation marks and citation omitted), and are deeply-

rooted in our nation’s jurisprudence:

[T]he historical foundation for our recognition of these principles extends

down centuries into the common law. ‘To guard against a spirit of oppression and

tyranny on the part of rulers,’ and ‘as the great bulwark of [our] civil and political

liberties,” 2 J. Story, Commentaries on the Constitution of the United States 540-

541 (4th ed. 1873), trial by jury has been understood to require that “the truth of

every accusation, whether preferred in the shape of indictment, information, or

appeal, should afterwards be confirmed by the unanimous suffrage of twelve of

[the defendant’s] equals and neighbours [sic].” 4 W. Blackstone, Commentaries

on the Laws of England 343 (1769). [] [Apprendi, 530 US at 477.]

Cognizant of this historical backdrop, the United States Supreme Court has recently

expanded the scope of a criminal defendant’s Sixth Amendment right to a jury in several cases

commencing with Apprendi, 530 US at 466. In that case, the petitioner pleaded guilty of, inter

alia, a second-degree weapons offense, which carried a maximum penalty of between 5 and 10

years imprisonment under New Jersey law. Id. at 469-470. Thereafter, the prosecutor filed a

motion to enhance the petitioner’s sentence under a New Jersey “hate crime” statute that

permitted a sentencing judge to impose an enhanced sentence of up to 20 years upon a finding

that the offender acted “with a purpose to intimidate an individual or group” because of

membership in a protected class. Id. Following a hearing, the sentencing judge found by a

preponderance of the evidence that the petitioner was motivated by racial animus and sentenced

him to 12 years’ imprisonment, 2 more than the maximum authorized under the law without the

enhancement. Id. at 471.

[Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013)].” People v Carp,

496 Mich 440, 491 n 20; 852 NW2d 801 (2014).

-9-

On appeal, the petitioner argued, in part, that the finding of racial animus was required to

be proved to a jury beyond a reasonable doubt. Id. The Supreme Court agreed, holding that the

sentence violated the petitioner’s right to “a jury determination that [he] is guilty of every

element of the crime with which he is charged, beyond a reasonable doubt.” Id. at 477, 490-491

(quotation marks and citation omitted). The Court reasoned that the petitioner’s Sixth

Amendment jury right attached to both the weapon’s offense and the hate crime aggravator

because “New Jersey threatened [the petitioner] with certain pains if he unlawfully possessed a

weapon and with additional pains if he selected his victims with a purpose to intimidate them

because of their race.” Id. at 476. “Merely using the label ‘sentence enhancement’ to describe

the latter surely does not provide a principled basis for treating them differently.” Id. Rather,

“[t]he relevant inquiry is one not of form, but of effect—does the required finding expose the

defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494

(footnote omitted). This is because “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to

a jury and proved beyond a reasonable doubt.” Id. at 490 (emphasis added).

Two years later, in Ring, the Supreme Court applied Apprendi to Arizona’s death penalty

sentencing scheme, which authorized a trial judge to increase a capital defendant’s maximum

sentence from life imprisonment to death based upon judicially found aggravating factors. Ring,

536 US at 588. The Supreme Court concluded that, “in effect, the required finding . . . exposed

[the defendant] to a greater punishment than that authorized by the jury’s guilty verdict.” Id. at

604. Thus, the aggravators acted as the “functional equivalent” of elements of a greater offense

and were required to be proved to a jury beyond a reasonable doubt. Id. at 609. The Court

explained that, “‘[w]hen the term ‘sentence enhancement’ is used to describe an increase beyond

the maximum authorized statutory sentence, it is the functional equivalent of an element of a

greater offense than the one covered by the jury’s guilty verdict.’” Id. at 605, quoting Apprendi,

530 US at 495. The relevant inquiry, the Supreme Court noted, was “not one of form but of

effect” and “[i]f a state makes an increase in a defendant’s authorized punishment contingent on

the finding of a fact, that fact—no matter how the state labels it—must be found by a jury beyond

a reasonable doubt.” Id. at 602 (quotation marks and citations omitted) (emphasis added).8

Taken together, Apprendi established, and Ring reaffirmed that, other than a prior

conviction, any finding of fact that increases a criminal defendant’s maximum sentence must be

proved to a jury beyond a reasonable doubt. “In each case, we concluded that the defendant’s

constitutional rights had been violated because the judge had imposed a sentence greater than the

maximum he could have imposed under state law without the challenged factual finding.”

Blakely v Washington, 542 US 296, 303; 124 S Ct 2531; 159 L Ed 2d 403 (2004). In the years

8

In arriving at its holding, the Ring Court overruled, in part, Walton v Arizona, 497 US 639; 110

S Ct 3047; 111 L Ed 2d 511 (1990), which had rejected a Sixth Amendment challenge to the

same sentencing scheme approximately 12 years earlier. The Court reasoned that Walton and

Apprendi were “irreconcilable,” explaining that “[c]apital defendants, no less than noncapital

defendants . . . are entitled to a jury determination of any fact on which the legislature conditions

an increase in their maximum punishment.” Ring, 536 US at 489.

-10-

following, the Supreme Court applied Apprendi to invalidate two state sentencing schemes in

Washington and California, both of which share similarities with the sentencing scheme at issue

in this case.

In Blakely, 542 US at 296, the Supreme Court held that Washington’s determinate

sentencing scheme ran afoul of Apprendi. In that case, the petitioner pleaded guilty of, inter alia,

second-degree kidnapping with a firearm, a class B felony. Id. at 299. State law provided that

class B felonies in general carried a statutory maximum of 10 years’ imprisonment; however,

under the state’s Sentencing Reform Act, the standard sentencing range for the second-degree

kidnapping offense was 49 to 53 months. Id. The Reform Act authorized, but did not require,

the sentencing judge to make an upward departure from the standard range upon a finding of

“substantial and compelling reasons justifying an exceptional sentence.” Id., quoting Wash Rev

Code Ann § 9.94A.120(2). The act listed non-exhaustive aggravating factors justifying such a

departure. Id.

Relying on the Reform Act, the sentencing judge departed from the recommended

standard sentencing range of 49 to 53 months and sentenced the petitioner to 90 months

imprisonment—37 months above the standard range—after finding that the petitioner acted with

“deliberate cruelty.” Id. at 300. The state argued, in part, that there was no Apprendi violation

because the statutory maximum authorized by law was the general 10-year maximum for class B

felonies as opposed to the 49-53 month standard range for second-degree kidnapping. Id. at 303.

The Supreme Court rejected this argument, explaining that, for purposes of Apprendi, the

“statutory maximum” is the “maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 US at 303. The

Supreme Court stated:

In other words, the relevant ‘statutory maximum’ is not the maximum

sentence a judge may impose after finding additional facts, but the maximum he

may impose without any additional findings. When a judge inflicts punishment

that the jury’s verdict alone does not allow, the jury has not found all the facts

which the law makes essential to the punishment . . . and the judge exceeds his

proper authority. [Id. at 303-304, (quotation marks and citation omitted.)]

The Court also rejected the state’s argument that the Reform Act did not violate Apprendi

because the sentencing judge retained discretion regarding whether to impose an enhanced

sentence, explaining:

The State in Blakely had endeavored to distinguish Apprendi on the

ground that ‘[u]nder the Washington guidelines, an exceptional sentence is within

the court’s discretion as a result of a guilty verdict.’ . . . We rejected that

argument. The judge could not have sentenced Blakely above the standard range

without finding the additional fact of deliberate cruelty. Consequently, that fact

was subject to the Sixth Amendment’s jury-trial guarantee. [Cunningham v

California, 549 US 270, 283; 127 S Ct 856; 166 L Ed 2d 856 (2007), citing

Blakely, 542 US at 305 (internal quotation marks and citations omitted).]

-11-

The Blakely Court concluded that because “the judge in this case could not have imposed the

exceptional 90-month sentence solely on the basis of the facts admitted in the guilty plea,” the

sentence ran afoul of the Sixth Amendment. Blakely, 542 US at 304.

After deciding Blakely, in Cunningham, 549 US at 270, the Supreme Court held that

California’s Determinate Sentencing Law (DSL) violated the Sixth Amendment.9 In

Cunningham, the petitioner was convicted of a sex offense. Id. at 275. Under the DSL, the

offense was punishable by a lower (6 year), middle, (12 year) and upper (16 year) sentence. Id.

The DSL provided that, “the court shall order imposition of the middle term, unless there are

circumstances in aggravation or mitigation of the crime.” Id. at 277. At a post-trial sentencing

hearing, the sentencing judge departed from the 12-year middle term and imposed the upper 16-

year term after finding six aggravating circumstances by a preponderance of the evidence. Id. at

275-276.

On appeal, the Supreme Court held that the DSL violated the Sixth Amendment,

explaining, “[t]his Court has repeatedly held that, under the Sixth Amendment, any fact that

exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and

established beyond a reasonable doubt, not merely by a preponderance of the evidence.” Id. at

281 (emphasis added). The Court concluded that, “[b]ecause the DSL allocates to judges sole

authority to find facts permitting the imposing of an upper term sentence, the system violates the

Sixth Amendment.” Id. at 293.

In arriving at its holding, the Cunningham Court rejected the California Supreme Court’s

view that the DSL resembled a permissible “advisory system,” explaining:

Under California’s system, judges are not free to exercise their discretion

to select a specific sentence within a defined range. [Rather], California’s

Legislature has adopted sentencing triads, three fixed sentences with no ranges

between them. [The petitioner’s] sentencing judge had no discretion to select a

sentence within a range of 6 to 16 years. His instruction was to select 12 years,

nothing less and nothing more, unless he found facts allowing the imposition of a

sentence of 6 or 16 years. Factfinding to elevate a sentence from 12 to 16 years,

our decisions make plain, falls within the province of the jury employing a

beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining

where the preponderance of the evidence lies. [Id. at 292 (quotation marks and

internal citations omitted).]

9

In another case following Blakely, the Supreme Court struck down certain provisions of the

Federal Sentencing Guidelines on grounds that they violated the Sixth Amendment to the extent

that they mandated enhanced sentences based on judicially-found facts. United States v Booker,

543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005). Given that this case does not involve

sentencing guidelines, Booker is not highly instructive for purposes of our analysis.

-12-

The Cunningham Court concluded, “[b]ecause the DSL authorizes the judge, not the jury,

to find the facts permitting an upper term sentence, the system cannot withstand measurement

against our Sixth Amendment precedent.” Id. at 293 (footnote omitted).

Apprendi and its progeny concerned judicial fact finding in the context of a criminal

defendant’s maximum sentence. In Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L

Ed 2d 314 (2013), the Supreme Court applied Apprendi in the context of mandatory minimum

sentences. In Alleyne, a jury convicted the petitioner of a federal robbery offense. Id. at 2155-

2156. The sentencing judge increased the petitioner’s mandatory minimum sentence from five to

seven years after finding that the petitioner brandished a weapon during commission of the

robbery. Id. at 2156. The petitioner argued that the jury did not determine that he brandished a

weapon and therefore he was not subject to the higher sentence. Id. The Supreme Court agreed,

rejecting the previous distinction it had drawn in Harris v United States, 536 US 545; 122 S Ct

2406; 153 L Ed 2d 524 (2002)—one that distinguished between “facts that increase the statutory

maximum and facts that increase only the mandatory minimum.” Alleyne, 133 S Ct at 2155.

Instead, the Alleyne Court explained that “[t]he touchstone for determining whether a fact must

be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element’ or

‘ingredient’ of the charged offense.” Id. at 2158. And “a fact is by definition an element of the

offense and must be submitted to the jury if it increases the punishment above what is otherwise

legally prescribed.” Id. (emphasis added). This definition of “elements” “necessarily includes

not only facts that increase the ceiling, but also those that increase the floor.” Id. The Supreme

Court concluded:

[T]he essential Sixth Amendment inquiry is whether a fact is an element

of the crime. When a finding of fact alters the legally prescribed punishment so

as to aggravate it, the fact necessarily forms a constituent part of a new offense

and must be submitted to the jury. It is no answer to say that the defendant could

have received the same sentence with or without that fact. [Id. at 2162.]

Apprendi through Alleyne represent a line of growth in the Supreme Court’s Sixth

Amendment jurisprudence concerning the scope of a criminal defendant’s right to a jury. This

jurisprudence can be summarized as follows: other than a prior conviction, any fact that

increases either the floor or the ceiling of a criminal defendant’s sentence beyond that which “a

judge may impose solely on the basis of facts reflected in the jury verdict or admitted by

defendant,” must be submitted to a jury and proved beyond a reasonable doubt. Blakely, 542 US

at 296; see also Apprendi, 530 US at 466; Ring, 536 US at 584; Cunningham, 549 US at 270;

Alleyne, 133 S Ct at 2155. We proceed by applying this jurisprudence to the sentencing scheme

at issue in this case.

IV. APPLICATION

A. MCL 769.25 VIOLATES THE SIXTH AMENDMENT

Our application of the Supreme Court’s Sixth Amendment jurisprudence begins with a

determination of whether the findings mandated by MCL 750.25 constitute elements of the

offense. Alleyne, 133 S Ct at 2162. To answer that question, we must determine if the findings

“alter[] the legally prescribed punishment so as to aggravate it,” if so, the findings “necessarily

-13-

form[] a constituent part of a new offense and must be submitted to the jury” and proved beyond

a reasonable doubt. Id.

In this case, following the jury’s verdict and absent a prosecution motion seeking a life

without parole sentence followed by additional findings by the trial court, the legally prescribed

maximum punishment that defendant faced for her first-degree murder conviction was

imprisonment for a term-of-years. Specifically, MCL 750.316 provides in relevant part as

follows:

(1) Except as provided in . . . [MCL 769.25 and 769.25a], a person who

commits any of the following is guilty of first degree murder and shall be

punished by imprisonment for life without eligibility for parole:

(a) Murder perpetrated by means of poison, lying in wait, or any other

willful, deliberate, and premeditated killing. [Emphasis added.]

The phrase “[e]xcept as provided in” means that punishment for first-degree murder is

contingent on the provisions of MCL 769.25. As noted above, MCL 769.25 contains provisions

that establish a default term-of-years prison sentence for a juvenile convicted of first-degree

murder. Specifically, the statute provides in pertinent part that “[t]he prosecuting attorney may

file a motion under this section to sentence a [] [juvenile defendant] to imprisonment for life

without the possibility of parole if the individual is or was convicted of [] [first-degree murder.]”

MCL 769.25(2). Absent this motion, “the court shall sentence the defendant to a term of years. .

. .” MCL 769.25(4) (emphasis added). The effect of this sentencing scheme clearly establishes a

“default” term-of-years sentence for juvenile defendants convicted of first-degree murder. See

Carp, 496 Mich at 458 (explaining that “MCL 769.25 now establishes a default sentencing

range for individuals who commit first-degree murder before turning 18 years of age” (emphasis

added);10 MCL 769.25(4) (providing that, absent the prosecution’s motion to impose a life

without parole sentence, “the court shall sentence the defendant to a term of years as provided in

subsection (9)” (emphasis added)).11

Stated differently, at the point of conviction, absent a motion by the prosecution and

without additional findings on the Miller factors, the maximum punishment that a trial court may

10

Our dissenting colleague erroneously contends that we “conflate” the language in Carp. Post

at 10-11. To the contrary, Justice MARKMAN, writing for the majority in Carp, described MCL

769.25 as follows: “[r]ather than imposing fixed sentences of life without parole on all

defendants convicted of violating MCL 750.316, MCL 769.25 now establishes a default

sentencing range for individuals who commit first-degree murder before turning 18 years of

age.” Carp, 496 Mich at 458 (emphasis added). The dissent fails to articulate what part of this

language we “conflate.”

11

MCL 769.25(9) governs a term-of-years sentence for juvenile defendants and it requires a

sentencing court to impose “a term of imprisonment for which the maximum term shall be not

less than 60 years and the minimum term shall be not less than 25 years or more than 40 years.”

-14-

impose upon a juvenile convicted of first-degree murder is a term-of-years prison sentence. See

Blakely, 542 US at 303 (holding that for purposes of Apprendi, the “statutory maximum” “is not

the maximum sentence a judge may impose after finding additional facts, but the maximum he

may impose without any additional findings.”) Thus, following her jury conviction, defendant

was subject to a term-of-years prison sentence. Once the prosecuting attorney filed a motion to

impose a life-without-parole sentence, defendant was exposed to a potentially harsher penalty

contingent on findings made by the trial court. This violated defendant’s right to “a jury

determination that [she] is guilty of every element of the crime with which [she] is charged,

beyond a reasonable doubt,” Apprendi, 530 US at 477 (quotation marks and citation omitted)

because “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a

reasonable doubt.” Id. at 490.

The state conditioned defendant’s life without parole sentence on two things: (1) the

prosecution’s filing of a motion to impose the sentence, and (2) the trial court’s findings with

respect to the Miller factors and “any other criteria relevant to its decision.” This scheme

authorized the trial court to enhance defendant’s sentence from a term-of-years to life without

parole based on findings made by a judge not a jury. As such, the sentencing scheme is akin to

the schemes at issue in Apprendi, Ring, Blakely and Cunningham. Each of those cases involved

a sentencing scheme that authorized a judge to enhance a defendant’s maximum sentence based

solely upon judicial fact-finding. The Supreme Court found these schemes unconstitutional,

explaining, “[t]his Court has repeatedly held that, under the Sixth Amendment, any fact that

exposes a defendant to a greater potential sentence must be found by a jury, not a judge. . . .”

Cunningham, 549 US at 281 (emphasis added). Similarly, the sentencing scheme in this case

cannot stand when examined under the lens of the Supreme Court’s Sixth Amendment

jurisprudence.

Clearly, the findings mandated by MCL 769.25(6) “exposed [defendant] to a greater

punishment than that authorized by the jury’s guilty verdict;” the findings therefore acted as the

“functional equivalent” of elements of a greater offense that were required to be proved to a jury

beyond a reasonable doubt. Ring, 536 US at 604. Enhanced punishment under MCL 769.25 is

not based merely on defendant’s prior convictions, on facts admitted by defendant, or on facts

that are part and parcel to the elements that were submitted to the jury during the guilt-phase of

the proceeding Rather, like in Apprendi, 530 US at 476, in this case, the state threatened

defendant with certain pains—i.e. a term of years sentence—following her jury conviction of

first-degree murder and with additional pains—i.e. life without parole—following additional

findings by the trial court. “Merely using the label ‘sentence enhancement’ to describe the latter

surely does not provide a principled basis for treating them differently.” Id. The effect of MCL

769.25 plainly subjects defendant to harsher punishment based on judicially found facts in

contravention of the Sixth Amendment.

We note that MCL 769.25 is unique to Michigan’s sentencing scheme such that our

Supreme Court’s recent decision in People v Lockridge, ___Mich___; ___NW2d___ (2015)

(Docket No. 149073), while not directly on point, lends support to our conclusion that a

defendant’s maximum sentence cannot be increased based on judicial fact finding. In Lockridge,

in relevant part, our Supreme Court was tasked with addressing whether, for purposes of Alleyne,

“a judge’s determination of the appropriate sentencing guidelines range . . . establishes a

-15-

‘mandatory minimum sentence,’ such that the facts used to score the offense variables must be

admitted by the defendant or established beyond a reasonable doubt to the trier of fact. . . .” Slip

op. at 5-6 n 11. The Lockridge Court answered this question in the affirmative, holding that

Michigan’s sentencing guidelines were constitutionally deficient under Apprendi as extended by

Alleyne. Id. at 1-2. The deficiency was “the extent to which the guidelines require judicial fact-

finding beyond facts admitted by the defendant or found by the jury to score offense variables

(OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the

‘mandatory minimum’ sentence under Alleyne.” Id.

As a remedy, the Lockridge Court severed MCL 769.34(2) “to the extent that it makes the

sentencing guidelines range as scored on the basis of facts beyond those admitted by the

defendant or found by the jury beyond a reasonable doubt mandatory,” and struck down the

requirement in MCL 769.34(3) “that a sentencing court that departs from the applicable

guidelines range must articulate a substantial and compelling reason for that departure.” Id. at 2.

Going forward, “a sentencing court must determine the applicable guidelines range and take it

into account when imposing a sentence,” however, “a guidelines minimum sentence range

calculated in violation of Apprendi and Alleyne is advisory only and . . . sentences that depart

from that threshold are to be reviewed by appellate courts for reasonableness.” Id.

Lockridge concerned the constitutionality of Michigan’s sentencing guidelines—

guidelines that govern a defendant’s mandatory-minimum sentence. Importantly, however, the

Lockridge Court addressed the constitutionality of the guidelines with the understanding that a

defendant’s maximum sentence is fixed by law and not affected by the guidelines. See Slip op. at

15 (noting that “scoring the sentencing guidelines and establishing the guidelines minimum

sentence range does not alter the maximum sentence.”) In contrast, this case concerns

enhancement of a juvenile defendant’s maximum sentence for first-degree murder under MCL

750.316 and MCL 769.25. An enhanced maximum sentence imposed under this statute is not

governed by the sentencing guidelines, but rather is part of a legislative response to the United

States Supreme Court’s holding in Miller. Indeed, this case is unlike any other sentencing case

decided in Michigan in that MCL 769.25 is a sui generis exception to the rule in Michigan that,

apart from habitual offender statutes, maximum sentences are fixed by law and cannot be

increased based on judicially-found facts. See e.g. People v McCullers, 479 Mich 672, 694; 739

NW2d 563 (2007), overruled in part on other grounds, Lockridge, ___Mich___, (noting that,

apart from habitual offender statutes, a criminal defendant’s maximum sentence in Michigan is

“prescribed by MCL 769.8, which requires a sentencing judge to impose no less than the

prescribed statutory maximum sentence as the maximum sentence for every felony conviction”

(quotation marks, citations, and footnote omitted)).

That this case does not involve scoring of sentencing guidelines to fix a mandatory

minimum sentence, but rather involves the constitutionality of increasing a maximum sentence

places it squarely within the familiar purview of Apprendi, Ring, Blakely and Cunningham. The

analysis, therefore, is simple: apart from a prior conviction or a fact admitted by the defendant,

any fact that exposes a defendant to an increased maximum sentence beyond that which is

authorized by the jury verdict standing alone, must be submitted to a jury and proved beyond a

reasonable doubt. Moreover, in the context of increasing a maximum sentence based on

judicially-found facts, judicial discretion cannot substitute for a defendant’s constitutional right

to a jury. See e.g. Alleyne, 133 S Ct 2162 (observing that “if a judge were to find a fact that

-16-

increased the statutory maximum sentence, such a finding would violate the Sixth Amendment,

even if the defendant ultimately received a sentence falling within the original sentencing range

(i.e., the range applicable without that aggravating fact);” Blakely, 542 US at 305, 305 n 8

(noting that where a judge acquires authority to impose an enhanced sentence “only upon finding

some additional fact,” “[w]hether the judicially determined facts require a sentence enhancement

or merely allow it, the verdict alone does not authorize the sentence” and it is therefore

constitutionally deficient).

The state argues that MCL 769.25 does not expose defendant to an increased penalty

because “[a]t the time of conviction, [defendant] faced the potential penalty of life without

possibility of parole,” and the “maximum allowable punishment is—at both the point of

conviction and at sentencing—life without the possibility of parole.” Similarly, the Attorney

General, as amicus curiae, argues that “[t]he statutory maximum penalty for first-degree

murder—even for minors—is life without parole . . . No facts are needed to authorize the

sentence, beyond those contained in the jury’s verdict.” However, if as the state and the

Attorney General contend, the “maximum allowable punishment” is life without parole at the

point of defendant’s conviction, then that sentence would offend the constitution. Under Miller,

a mandatory default sentence for juveniles cannot be life imprisonment without the possibility of

parole. Such a sentence would not be an individualized sentence taking into account the factors

enumerated in Miller. See e.g. Russell, 56 BC L Rev at 581 (explaining that under Miller, “[t]he

default is not life without parole. It is only in the rare or unusual case-where a factual finding of

irreparable corruption is made—that a juvenile may be exposed to life without parole”). This is

why MCL 769.25 creates a default term-of-years sentence for juveniles convicted under MCL

750.316. That is, at the point of conviction, the maximum sentence that defendant faced, absent

additional findings by the trial court, was a term-of-years sentence. Like in Apprendi, Ring,

Blakely and Cunningham, here, defendant’s maximum sentence could only be enhanced

following findings made by a judge.

Furthermore, the Supreme Court rejected a similar argument in Ring, 536 US at 605-606.

In that case, Arizona argued that its capital punishment was constitutional, in part, because

Arizona’s first-degree murder statute specified that “death or life imprisonment” were the only

sentencing options. Id. at 603-604. Therefore, according to Arizona, when the sentencing judge

sentenced the petitioner to death, he was “sentenced within the range of punishment authorized

by the jury verdict.” Id. at 604. The Supreme Court rejected this argument, explaining that

“[t]he Arizona first-degree murder statute authorizes a maximum penalty of death only in a

formal sense.” Id. (quotation marks and citations omitted). Instead, the Supreme Court looked

to the effect of the statute over its form, noting that, “[i]n effect, ‘the required finding [of an

aggravated circumstance] expose[d] [the petitioner] to a greater punishment than that authorized

by the jury’s guilty verdict.” Id., quoting Apprendi, 530 US at 494. Similarly, in this case, MCL

750.316 authorizes a life without parole sentence for juveniles “only in a formal sense,” and, in

effect, the required findings mandated by MCL 769.25(6) subjected defendant to greater

punishment than that authorized by the jury’s guilty verdict.

The state and the Attorney General attempt to distinguish Ring from the present case by

arguing that, unlike in Ring, which required the sentencing judge to find one of several specified

aggravating factors, MCL 769.25 does not mandate the presence of any factor before authorizing

-17-

a life without parole sentence. This is a distinction without any real meaning that was rejected in

Blakely, wherein the Court explained:

[w]hether the judge’s authority to impose an enhanced sentence depends

on finding a specified fact (as in Apprendi), one of several specified facts (as in

Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict

alone does not authorize the sentence. The judge acquires that authority only

upon finding some additional fact. [Blakely, 542 US at 305 (footnote omitted).]

As in Blakely, what is critical is that, the trial court in this case acquired authority to enhance

defendant’s sentence from a term-of-years to life without parole “only upon finding some

additional fact.” Id. In that respect, this case is not distinguishable from Ring, Blakely or any of

the other United States Supreme Court decisions relative to defendant’s Sixth Amendment rights

discussed supra.

The Attorney General also argues that Ring is distinguishable because, unlike in Ring, in

this case, the factors in MCL 769.25(6) do not enhance the sentence, but instead act as mitigating

factors that can bring the sentence down to a term-of-years. The Attorney General reads the

statute backwards. The term-of-years sentence is the default that can be enhanced based on

judicial findings. Thus, under the statutory configuration, the Miller factors are used to seek

enhancement of defendant’s punishment.

Similarly, the Attorney General argues that neither MCL 769.25 nor Miller require “any

fact to be found before a trial court imposes a sentence of life without parole,” therefore, the life-

without-parole sentence was available at the time of conviction. This argument ignores the plain

language of the statute and misconstrues Miller. Specifically, MCL 769.25(6) provides that,

upon the prosecution’s motion, “the court shall conduct a hearing . . . as part of the sentencing

process . . . [and] shall consider the factors listed in [Miller, 576 US at___]” (emphasis added).

By their very nature, the factors enumerated in Miller necessitate factual findings. See e.g.

Gutierrez, 58 Cal 4th at 1388 (explaining that “Miller discussed a range of factors relevant to a

sentencer’s determination of whether a particular defendant is a rare juvenile offender whose

crime reflects irreparable corruption” (emphasis added)); Russell, 56 BC L Rev at 581 (noting

that, “the consideration of mitigation and aggravation under Miller is part of making a particular

factual determination: is the juvenile irreparably corrupt and incapable of rehabilitation?”)

Moreover, “Miller concludes that life without parole is an inappropriate sentence for most

juveniles, and may be given only in rare circumstances where certain facts are established. Thus,

the factual finding of ‘irreparable corruption’ aggravates—not mitigates—the penalty.” Russell,

56 BC L Rev at 582.12

12

Our dissenting colleague erroneously posits that we “latch[] onto a statement in a law review

article” to support the proposition that “irreparable corruption” is an “aggravating factor.” Post

at 10. To the contrary, we do not hold that “irreparable corruption” is an “aggravating factor.”

Rather, the Miller Court held that life imprisonment without parole for juvenile homicide

offenders is constitutionally permissible only in those rare cases where a juvenile’s crime reflects

-18-

In addition, as noted, MCL 769.25(7) provides that, in imposing the sentence, “the court

shall specify on the record the aggravating and mitigating circumstances considered by the court

and the court’s reasons supporting the sentence imposed” (emphasis added). Thus, the language

of the statute necessarily requires the trial court to make findings of fact before imposing a life

without parole sentence.13

In a similar argument, the dissent posits that Miller “hardly establishes a list of factors

which must be met before a sentence of life without parole may be imposed,” and states that

Miller does not “set[] forth any particular facts that must be found before a sentence of life

without parole may be imposed.” Post at 8-9. Instead, according to the dissent, Miller “merely

require[s] the sentencing court to take into account the individual circumstances of the juvenile

offender before determining whether a sentence of life without parole is appropriate in each

particular case.” Id. at 9. The dissent concludes that because a sentencing court need only

“consider” the Miller factors as opposed to make findings on the factors, MCL 769.25 does not

violate Apprendi and its progeny. Id. at 9-10. Conveniently, the dissent fails to articulate how a

judge should take into account, without making any findings of fact, a juvenile’s immaturity,

impetuosity, his or her failure to appreciate risks and consequences, his or her family and home

environment, whether the home environment is “brutal or dysfunctional,” whether the juvenile

“irreparable corruption.” Miller, 132 S Ct at 2469. The factors provided by the Miller Court

serve as a guidepost during the sentencing phase to determine if the juvenile’s offense reflects

irreparable corruption. Absent this determination, life imprisonment without parole violates the

Eighth Amendment. Moreover, this is not a maxim derived from a law review article. See e.g.

People v Gutierrez, 58 Cal 4th 1354, 1388; 171 Cal Rptr 3d 421; 324 P 3d 245 (2014), quoting

Miller, 132 S Ct at 2469 (explaining that “Miller discussed a range of factors relevant to a

sentencer’s determination of whether a particular defendant is a ‘rare juvenile offender whose

crime reflects irreparable corruption.’”)

13

The dissent acknowledges that MCL 769.25(7) requires the sentencing court to “specify on the

record the aggravating and mitigating circumstances considered by the court and the court’s

reasons supporting the sentence imposed.” Post at 8. However, the dissent states, “[b]ut

nowhere does the statue require the trial court to make any particular finding of fact before it is

authorized to impose a sentence of life without parole.” Id. The fallacy in this statement, of

course, is that it fails to recognize that, in order to consider and specify an aggravating

circumstance on the record, a trial court necessarily must first make findings as to the presence

and relevance of the aggravating circumstance. Moreover, if the dissent were correct in its

contention that MCL 769.25(6) did not require the sentencing court to make any findings of fact,

then the statute would offend the Eighth Amendment because, as discussed in detail above,

Miller requires an individualized factual inquiry before a juvenile may be sentenced to life

without parole. Furthermore, the dissent’s argument “overlooks Apprendi’s instruction that the

relevant inquiry is one not of form, but of effect.” Ring v Arizona, 536 US 584, 604; 122 S Ct

2428; 153 L Ed 2d 556 (2002) (quotation marks and citations omitted). In effect, by directing

the sentencing court to “consider” the Miller factors and specify the aggravating and mitigating

circumstances on the record, the statute requires the sentencing judge to make findings of fact

before imposing the harsher life without parole sentence.

-19-

could extricate herself from the home environment, the circumstances of the offense, the extent

of the juvenile’s participation in the offense conduct, whether familial and peer pressures may

have affected the juvenile, whether the juvenile might have been charged and convicted of a

lesser offense if not for youthful incompetence, whether the juvenile was able to deal with police

officers or prosecutors, whether the juvenile was able to assist trial counsel, and, importantly,

whether the juvenile exhibits potential for rehabilitation. See Miller, 132 S Ct at 2469. The

dissent’s contention that there exists a means by which all of these factors must be “considered”

without leading to a single finding of fact defies logic.14

In an attempt to bolster its flawed analysis, the dissent focuses on the word “consider” in

MCL 769.25(6): specifically, the statute provides that, “[a]t the hearing, the trial court shall

consider the factors listed in [Miller]. . . ” (emphasis added). Post at 9-10. The dissent contends

that because the statute directs a court to “consider” the factors as opposed to make findings on

the factors, the statute therefore does not require judicial fact finding to increase a juvenile

homicide offender’s maximum sentence to life without parole. Id. at 9-11. However,

consideration of factors necessarily requires fact finding and the terms are often used

interchangeably in the law. For example, in the context of child custody proceedings, MCL

722.23 sets forth best interest factors “to be considered, evaluated, and determined” by the trial

court (emphasis added), and it is certainly well-settled law that this Legislative mandate requires

a trial court to make factual findings on these factors. See e.g. Bowers v Bowers, 198 Mich App

320, 328, 497 NW2d 602 (1993) (noting that in a child custody case, “[t]he trial court must

consider each of these [best interest] factors and explicitly state its findings and conclusions

regarding each”) (emphasis added). Similarly, in deciding whether to award alimony, “trial

courts should consider. . . ” several spousal support factors, Berger v Berger, 277 Mich App 700,

726-727; 747 NW2d 336 (2008) (emphasis added), and in considering those factors, trial courts

should “make specific factual findings regarding the factors that are relevant to the particular

case.” Myland v Myland, 290 Mich App 691, 695; 804 NW2d 124 (2010) (emphasis added,

quotation marks and citations omitted). Moreover, in the criminal context, “consideration” of

factors implies fact finding. See e.g. People v Cipriano, 431 Mich 315, 335; 429 NW2d 781

(1988) (setting forth factors that a trial court “should consider” in determining whether a

statement is voluntary) (emphasis added); People v Gipson, 287 Mich App 261, 264; 787 NW2d

126 (2010) (noting that a trial court’s factual findings during a voluntariness inquiry are

reviewed for clear error).

In short, the dissent’s contention that consideration of factors is distinct from making

findings as to those factors is a difference without any real meaning, illustrates the tenuous

nature of the dissent’s flawed analysis, and “ignore[s] reality and the actual text of the statute.”

14

In addition, the basic assertion of the dissent is that we reach our conclusions based on what

the dissent labels “a false premise.” Post at 1. Specifically, the dissent contends that our opinion

states that “Apprendi and its progeny requires that all facts relating to a sentence must be found

by a jury.” Id. However the dissent fails to cite where that statement is made, we presume

because our opinion does not so state, leading, of course, to the inescapable conclusion that it is

the dissent whose argument is based entirely upon a false premise.

-20-

Potter v McLeary, 484 Mich 397, 438, 774 NW2d 1 (2009) (YOUNG, J., concurring in part and

dissenting in part).

The state also argues that, unlike in Cunningham, 549 US at 270, where findings of

certain aggravators required the sentencing judge to impose a heightened sentence, in this case,

under MCL 769.25, the sentencing judge has discretion to impose the harsher sentence.

However, merely because the sentencing judge has discretion to impose a harsher penalty does

not save MCL 769.25 from constitutional delinquency because “[w]hether the judicially

determined facts require a sentence enhancement or merely allow it, the verdict alone does not

authorize the sentence.” Blakely, 542 US at 305 n 8. Indeed, in Blakely, the Court rejected

Washington’s attempt to distinguish Apprendi from that state’s sentencing scheme on grounds

that sentencing judges had discretion to impose an exceptional sentence. See Cunningham, 549

US at 283, citing Blakely, 542 US at 305. The Blakely Court explained that judicial discretion

cannot serve as a substitute for the Sixth Amendment, explaining:

Justice O’Connor argues that, because determinate sentencing schemes

involving judicial factfinding entail less judicial discretion than indeterminate

schemes, the constitutionality of the latter implies the constitutionality of the

former. This argument is flawed on a number of levels. First, the Sixth

Amendment by its terms is not a limitation on judicial power, but a reservation of

jury power. It limits judicial power only to the extent that the claimed judicial

power infringes on the province of the jury. Indeterminate sentencing does not do

so. It increases judicial discretion, to be sure, but not at the expense of the jury’s

traditional function of finding the facts essential to lawful imposition of the

penalty. Of course indeterminate schemes involve judicial factfinding, in that a

judge (like a parole board) may implicitly rule on those facts he deems important

to the exercise of his sentencing discretion. But the facts do not pertain to

whether the defendant has a legal right to a lesser sentence--and that makes all

the difference insofar as judicial impingement upon the traditional role of the jury

is concerned. [Blakely, 542 US at 308-309 (internal citations omitted) (emphasis

added).]

In this case, based solely on the facts that were submitted to the jury, defendant was

entitled to a term-of-years sentence. Therefore, because the factual findings required by Miller

and MCL 769.25(6) were not part and parcel to the elements submitted to the jury, these facts

“pertain to whether the defendant has a legal right to a lesser sentence . . . ],” and merely because

the sentencing court has discretion to impose the harsher sentence cannot serve as a substitute for

defendant’s Sixth Amendment right to a jury. Id.

Finally, in an argument that can best be described as a Herculean attempt at linguistic

gymnastics, the Attorney General argues that the default term-of-years sentence mandated by

MCL 769.25(9) is not actually the default sentence because “[i]f . . . the prosecutor moves for a

life sentence, then the term of years is not the default.” This argument misconstrues the meaning

of the word “default.” “Default” is defined in relevant part as, “a selection made automatically

or without active consideration due to lack of a viable alternative.” Merriam Webster’s

Collegiate Dictionary, (11th ed.) Under MCL 769.25, a term-of-years sentence is automatic and

there is no alternative absent the prosecution’s motion for a life without parole sentence and

-21-

additional findings by the court. Accordingly and as specifically stated in Carp, 496 Mich at

458, a term-of-years is the default sentence.15

To summarize, the default sentence for a juvenile convicted of first-degree murder under

MCL 750.316 is a term-of-years prison sentence. MCL 769.25 authorizes a trial court to

enhance that sentence to life without parole based on factual findings that were not made by a

jury but rather were found by a judge. In this respect, the statute offends the Sixth Amendment

as articulated in Apprendi and its progeny. In order to enhance a juvenile’s default sentence to

life without parole, absent a waiver,16 a jury must make findings on the Miller factors as codified

at MCL 769.25(6) to determine whether the juvenile’s crime reflects “irreparable corruption”

beyond a reasonable doubt. Accordingly, because defendant’s sentence for first-degree murder

was imposed in a manner that violated the Sixth Amendment, she is entitled to resentencing on

that offense.17

B. SEVERABILITY AND SENTENCING OF JUVENILES GOING FORWARD

Although portions of MCL 769.25 are unconstitutional, this does not necessarily render

the statute void in its entirety. Rather, MCL 8.5 provides:

If any portion of an act or the application thereof to any person or

circumstances shall be found to be invalid by a court, such invalidity shall not

affect the remaining portions or applications of the act which can be given effect

without the invalid portion or application, provided such remaining portions are

not determined by the court to be inoperable, and to this end acts are declared to

be severable.

Indeed, “[i]t is the law of this State that if invalid or unconstitutional language can be deleted

from an ordinance and still leave it complete and operative then such remainder of the ordinance

be permitted to stand.” Eastwood Park Amusement Co v East Detroit Mayor, 325 Mich 60, 72;

38 NW2d 77 (1949).

15

Moreover, as explained above, life without parole can never be the default sentence for

juveniles under Graham and Miller.

16

See Blakely, 542 US at 310 (noting that “nothing prevents a defendant from waiving his

Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence

enhancements so long as the defendant either stipulates to the relevant facts or consents to

judicial factfinding.”)

17

Given our resolution of this issue, we need not address the other issues defendant raises on

appeal. We note that we reject defendant’s argument that she should be resentenced in front of a

different judge on remand. Although resentencing before a different judge may be “warranted

by the circumstances” on some occasions, here, defendant has not articulated any circumstances

that warrant resentencing before a different judge. People v Coles, 417 Mich 523, 536; 339

NW2d 440 (1983), overruled in part on other grounds, People v Milbourn, 435 Mich 630; 461

NW2d 1 (1990).

-22-

In this case, apart from subsection (6)’s provision directing the trial court to consider the

Miller factors, and from subsection (7)’s provision directing the court to articulate aggravating

and mitigating circumstances on the record, MCL 769.25 remains operable in the event that the

findings on the Miller factors are made by a jury beyond a reasonable doubt.18 That is, following

a conviction of first-degree murder and a motion by the prosecuting attorney for a life without

parole sentence, absent defendant’s waiver, the court should impanel a jury19 and hold a

sentencing hearing where the prosecution is tasked with proving that the factors in Miller support

that the juvenile’s offense reflects “irreparable corruption” beyond a reasonable doubt. During

this hearing, both sides must be afforded the opportunity to present relevant evidence and each

victim must be afforded the opportunity to offer testimony in accord with MCL 769.25(8).

Following the close of proofs, the trial court should instruct the jury that it must consider,

whether in light of the factors set forth in Miller and any other relevant evidence, the defendant’s

offense reflects irreparable corruption beyond a reasonable doubt sufficient to impose a sentence

of life without parole. Alternatively, if the jury decides this question in the negative, then the

court should use its discretion to sentence the juvenile to a term-of-years in accord with MCL

769.25(9).

V. CONCLUSIONS

The Sixth Amendment requires that, other than a prior conviction, any fact that increases

either the floor or the ceiling of a of a criminal defendant’s sentence beyond that which “a judge

may impose solely on the basis of facts reflected in the jury verdict or admitted by defendant,”

must be submitted to a jury and proved beyond a reasonable doubt. Blakely, 542 US at 296. The

default sentence for juveniles convicted of first-degree murder—i.e. the sentence authorized by

the jury verdict—is a term-of-years prison sentence. MCL 769.25 authorizes a trial court to

increase that sentence to life without the possibility of parole contingent on the trial court’s

findings with respect to the Miller factors and any other relevant criteria. Because MCL 769.25

makes an increase in a juvenile defendant’s sentence contingent on factual findings, those

findings must be made by a jury beyond a reasonable doubt. Accordingly, in this case, because

defendant was denied her right to have a jury make the requisite findings under MCL 769.25, she

is entitled to resentencing on her first-degree murder conviction.

18

The Sixth Amendment does not require the jury to articulate mitigating and aggravating

circumstances, thus subsection (7) is inoperable.

19

We note that this hearing may be conducted before the jury that determined the defendant’s

guilt in the event that the prosecution moves to impose a life without parole sentence after the

jury verdict, but before the jury is dismissed. See e.g. 18 USC § 3539(b) (providing that the

sentencing hearing in a federal death penalty case may be conducted before the jury that

determined the defendant’s guilt, or, in certain circumstances, before a jury impaneled “for the

purpose of” the sentencing hearing). Alternatively, the court may impanel a new jury for the

purposes of the sentencing hearing in accord with the court rules governing impaneling a jury for

the guilt phase of the proceeding. See MCR 6.410; MCR 6.412.

-23-

Vacated and remanded for resentencing consistent with this opinion. Jurisdiction is not

retained.

/s/ Stephen L. Borrello

/s/ Joel P. Hoekstra

-24-