Petition for Writ of Certiorari — Tia Marie-Mitchell Skinner, Petitioner v. Michigan

Supreme Court briefNov 19, 2018

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No.18-

IN THE

SUPREME COURT OF THE UNITED STATES

TIA SKINNER

Petitioner,

STATE OF MICHIGAN

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Michigan

APPENDIX

Kimberly Thomas (P66643)

Counsel of Record

University of Michigan Law School

Juvenile Justice Clinic

701 S. State St.

Ann Arbor, MI 48109

734-763-1193

kithomas@umich.edu

jjc-admin@umich.edu

Attorney for Petitioner

APPENDICES

a. People v. Skinner, 917 N.W.2d 292 (Mich. 2018) (published Michigan Supreme Court

opinion) ............................................................................................................................. 1a

b. People v. Skinner, 312 N.W.2d 484 (Mich. App. 2015) (published Michigan Court of

Appeals opinion) ..............................................................................................................30a

c. People v. Skinner Order Denying Motion for Jury Determination (trial court order dated

Sept. 9, 2014) ...................................................................................................................64a

d. People v. Skinner, 2018 WL 5929052 (No. 317892, Nov. 13, 2018) (affirming life

without parole sentence on remand) ................................................................................65a

e. People v. Skinner, 915 N.W.2d 886, Case No. 152448 (Mich. Aug. 24, 2018) (mem.)

(denying rehearing in Michigan Supreme Court) ............................................................74a

f. Mich. Comp. L. § 769.25 .................................................................................................75a

g. Mich. Comp. L. § 769.25a ............................................................................................... 76a

APPENDIX A

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

502 Mich. 89

Supreme Court of Michigan.

PEOPLE of the State of Michigan,

Plaintiff-Appellant,

Tia Marie-Mitchell SKINNER,

Defendant-Appellee.

People of the State of Michigan,

Plaintiff-Appellant,

Kenya Ali Hyatt, Defendant-Appellee.

People of the State of Michigan, Plaintiff-Appellee,

Kenya Ali Hyatt, Defendant-Appellant.

No. 152448, No. 153081, No. 153345

Argued October 12, 2017

Filed June 20, 2018

Holdings: The Supreme Court, Markman, C.J., held that:

[1]

life without parole for juveniles is authorized by the

jury’s verdict alone and does not require finding of fact

regarding juvenile’s incorrigibility, and

[2]

decision to sentence a juvenile to life without parole is

to be reviewed under the traditional abuse-of-discretion

standard.

Affirmed in part, reversed in part, and remanded.

McCormack, J., filed dissenting opinion in which

Bernstein, J., joined.

West Headnotes (17)

[1]

Synopsis

Background: In first case, defendant was convicted of

first-degree murder and other crimes committed when

defendant was juvenile. Defendant appealed, and on

remand from the Court of Appeals, 2013 WL 951265, for

resentencing following affirmance of convictions, the

Circuit Court, St. Clair County, Daniel J. Kelly, J.,

sentenced defendant to life without parole. Defendant

appealed, and the Court of Appeals, 312 Mich.App. 15,

877 N.W.2d 482, vacated and remanded. Prosecution’s

application for leave to appeal was granted. In second

case, another defendant was convicted in the Genesee

Circuit Court, Judith A. Fullerton, J., of first-degree

felony murder, conspiracy to commit armed robbery,

armed robbery, and possession of firearm during

commission of felony, and was sentenced to life without

possibility of parole. He appealed. The Court of Appeals,

314 Mich.App. 140, 885 N.W.2d 900, reversed but

declared conflict. Special conflict panel was convened.

The Court of Appeals, 316 Mich.App. 368, 891 N.W.2d

549, vacated and remanded. Prosecution’s application for

leave to appeal was granted.

Jury

Sentencing Matters

Sentencing and Punishment

Validity

Sentencing and Punishment

Juvenile offenders

Statute governing life without parole for

defendant less than 18 years old does not violate

the Sixth Amendment, and thus sentence of life

without parole is authorized by the jury’s verdict

alone and does not require finding of fact

regarding child’s incorrigibility, since neither

the statute nor the Eighth Amendment requires a

judge to find any particular fact before imposing

life without parole. U.S. Const. Amends. 6, 8;

Mich. Comp. Laws Ann. § 769.25.

Cases that cite this headnote

[2]

Criminal Law

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

Review De Novo

Matters of constitutional and

interpretation are reviewed de novo.

courts have a duty to construe a statute as

constitutional unless its unconstitutionality is

clearly apparent.

statutory

Cases that cite this headnote

[6]

[3]

Constitutional Law

Judicial Authority and Duty in General

Constitutional Law

Clearly, positively, or unmistakably

unconstitutional

Jury

Sentencing Matters

Sentencing and Punishment

Factors enhancing sentence

If 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.

In analyzing constitutional challenges to

statutes, the Supreme Court’s authority to

invalidate laws is limited and must be predicated

on a clearly apparent demonstration of

unconstitutionality.

Cases that cite this headnote

[7]

[4]

Jury

Sentencing Matters

Jury

Sentencing Matters

The Sixth Amendment only prohibits trial

courts’ fact-finding that increases a defendant’s

sentence; it does not prohibit fact-finding that

reduces a defendant’s sentence. U.S. Const.

Amend. 6.

Any fact that exposes the defendant to a greater

punishment than that authorized by the jury’s

guilty verdict is an “element” that must be

submitted to a jury.

Cases that cite this headnote

[8]

[5]

Constitutional Law

Presumptions and Construction as to

Constitutionality

Constitutional Law

Clearly, positively, or unmistakably

unconstitutional

Jury

Sentencing Matters

A factual finding made by the court that an

aggravating circumstance exists does not violate

the Sixth Amendment as it does not expose the

defendant to an enhanced sentence, that is, a

sentence that exceeds the one authorized by the

Statutes are presumed to be constitutional, and

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

jury’s verdict alone. U.S. Const. Amend. 6.

Cases that cite this headnote

[12]

[9]

Sentencing and Punishment

Necessity

Statute governing life without parole for

defendant less than 18 years old does not require

the trial court to make any particular factual

finding

before

can

impose

life-without-parole sentence. Mich. Comp. Laws

Ann. § 769.25.

Jury

Sentencing Matters

Sentencing and Punishment

Juvenile offenders

The Eighth Amendment does not require the

finding of any particular fact before imposing a

life-without-parole sentence against a juvenile,

and therefore the Sixth Amendment is not

violated by allowing the trial court to decide

whether to impose life without parole. U.S.

Const. Amends. 6, 8.

1 Cases that cite this headnote

[10]

Sentencing and Punishment

Juvenile offenders

[13]

Just as courts are not allowed, under the Eighth

Amendment, to impose disproportionate

sentences, courts are not allowed to sentence

juveniles who are not irreparably corrupt as

determined by Miller v. Alabama to life without

parole. U.S. Const. Amend. 8.

Statute governing life without parole for

defendant less than 18 years old requires trial

courts to consider the Miller v. Alabama factors

before imposing life without parole in order to

ensure that only those juveniles who are

irreparably corrupt are so sentenced; whether a

juvenile is irreparably corrupt is not a factual

finding, but is a moral judgment that is made

after considering and weighing the Miller v.

Alabama factors. Mich. Comp. Laws Ann. §

769.25.

Cases that cite this headnote

[11]

Sentencing and Punishment

Juvenile offenders

Just as whether a sentence is proportionate is not

a factual finding, whether a juvenile is

“irreparably corrupt” as determined by Miller v.

Alabama, so as to be sentenced to life without

parole, is not a factual finding required by the

Eighth Amendment. U.S. Const. Amend. 8.

Sentencing and Punishment

Juvenile offenders

Cases that cite this headnote

[14]

Criminal Law

Application of guidelines

Criminal Law

Review De Novo

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

Review de novo, in which a panel of appellate

judges could substitute its own judgment for that

of the trial court, is not the appropriate standard

by which to review a determination that a

substantial and compelling reason exists to

justify a departure from the guidelines range;

instead, the appellate court must accord this

determination some degree of deference.

parole is to be made by a judge and this decision

is to be reviewed under the traditional

abuse-of-discretion standard. Mich. Comp. Laws

Ann. § 769.25.

1 Cases that cite this headnote

Cases that cite this headnote

Attorneys and Law Firms

[15]

Criminal Law

Discretion of Lower Court

At its core, an “abuse of discretion” standard of

appellate review acknowledges that there will be

circumstances in which there will be no single

correct outcome; rather, there will be more than

one reasonable and principled outcome.

Cases that cite this headnote

[16]

Criminal Law

Sentencing

Because of the trial court’s familiarity with the

facts and its experience in sentencing, the trial

court is better situated than the appellate court to

determine whether a life-without-parole

sentence is warranted in a particular case.

Cases that cite this headnote

[17]

Criminal Law

Sentencing

Jury

Sentencing Matters

Decision to sentence a juvenile to life without

**294 Bill Schuette, Attorney General, Aaron D.

Lindstrom, Solicitor General, Michael D. Wendling,

Prosecuting Attorney, and Hilary B. Georgia, Senior

Assistant Prosecuting Attorney, for the people in Docket

No. 152448.

University of Michigan Juvenile Justice Clinic (by

Kimberly A. Thomas and Frank E. Vandervort) for Tia

Marie-Mitchell Skinner in Docket No. 152448.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, David S. Leyton, Prosecuting Attorney,

and Joseph F. Sawka, Assistant Prosecuting Attorney, for

the people in Docket Nos. 153081 and 153345.

Ronald D. Ambrose for Kenya Ali Hyatt in Docket Nos.

153081 and 153345.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Matthew Schneider, Chief Legal

Counsel, and Linus Banghart-Linn, Assistant Attorney

General, for amici curiae, the Attorney General in Docket

No. 152448.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Laura Moody, Chief Legal Counsel,

and B. Eric Restuccia, Deputy Solicitor General, for amici

curiae, the Genesee County Prosecutor in Docket No.

153081.

Mark Reene, Kym L. Worthy, Jason W. Williams, and

Timothy A. Baughman for amici curiae, the Prosecuting

Attorneys Association of Michigan in Docket Nos.

152448 and 153081.

Honigman Miller Schwartz and Cohn LLP (by Philip J.

Kessler, Leonard M. Niehoff, and Robert M. Riley) for

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

amici curiae, the Fair Punishment Project in Docket No.

152448.

State Appellate Defender (by Sofia Nelson and Brett

DeGroff) for amici curiae, the Criminal Defense

Attorneys of Michigan in Docket No. 152448.

No such explicit finding is required. Finally, we remand

both of these cases to the Court of Appeals for it to review

defendants’

sentences

under

the

traditional

abuse-of-discretion standard of review.

Dawn Van Hoek, Michael Mittlestat, and Jessica

Zimbelman for amici curiae, the State Appellate Defender

Office in Docket No. 153081.

I. FACTS AND HISTORY

Deborah A. Labelle and Marsha L. Levick for amici

curiae, the Juvenile Law Center in Docket No. 153081.

BEFORE THE ENTIRE BENCH (except Clement, J.)

A. SKINNER

OPINION

Markman, C.J.

*96 **295 [1]At issue here is whether MCL 769.25

violates the Sixth Amendment because it allows the

decision whether to impose a sentence of life without *97

parole to be made by a judge, rather than by a jury beyond

a reasonable doubt. We hold that MCL 769.25 does not

violate the Sixth Amendment because neither the statute

nor the Eighth Amendment requires a judge to find any

particular fact before imposing life without parole;

instead, life without parole is authorized by the jury’s

verdict alone. Therefore, we reverse the judgment of the

Court of Appeals in Skinner and affirm the part of Hyatt

that held that “[a] judge, not a jury, must determine

whether to impose a life-without-parole sentence or a

term-of-years sentence under MCL 769.25.” People v.

Hyatt, 316 Mich. App. 368, 415, 891 N.W.2d 549 (2016).

However, we reverse the part of Hyatt that adopted a

heightened standard of review for life-without-parole

sentences imposed under MCL 769.25 and that remanded

this case to the trial court for it to “decide whether

defendant Hyatt is the truly rare juvenile mentioned in

[Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183

L.Ed.2d 407 (2012) ] who is incorrigible and incapable of

reform.” Hyatt, 316 Mich. App. at 429, 891 N.W.2d 549.

Following a jury trial, defendant was convicted of

first-degree premeditated murder, conspiracy to commit

murder, and attempted murder for acts committed **296

when defendant was 17 years old. Defendant was

sentenced to life in prison without the possibility of

parole. The Court of Appeals remanded for resentencing

under Miller, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d

407, which held that mandatory life-without-parole

sentences for offenders under *98 18 years old violate the

Eighth Amendment. People v. Skinner, unpublished per

curiam opinion of the Court of Appeals, issued February

21, 2013, 2013 WL 951265 (Docket No. 306903). This

Court denied leave to appeal. People v. Skinner, 494

Mich. 872, 832 N.W.2d 237 (2013). On remand, the trial

court reimposed a life-without-parole sentence. After

defendant was resentenced, MCL 769.25 took effect,

setting forth a new framework for sentencing juveniles

convicted of first-degree murder. The Court of Appeals

remanded for resentencing under MCL 769.25. People v.

Skinner, unpublished order of the Court of Appeals,

entered July 30, 2014 (Docket No. 317892). On remand,

the trial court again sentenced defendant to life without

parole.

In a split, published decision, the Court of Appeals again

remanded for resentencing, holding that a jury must

decide whether defendant should be sentenced to life

without parole and that, to the extent that MCL 769.25

requires the trial court to make this determination, it is

unconstitutional. People v. Skinner, 312 Mich. App. 15,

877 N.W.2d 482 (2015). This Court granted the

prosecutor’s application for leave to appeal and directed

the parties to address “whether the decision to sentence a

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

person under the age of 18 to a prison term of life without

parole under MCL 769.25 must be made by a jury beyond

a reasonable doubt[.]” People v. Skinner, 500 Mich. 929,

929, 889 N.W.2d 487 (2017).

B. HYATT

Following a jury trial, defendant was convicted of

first-degree felony murder, armed robbery, conspiracy to

commit armed robbery, and possessing a firearm during

the commission of a felony for acts committed when

defendant was 17 years old. Following an evidentiary

hearing at which the trial court considered the *99 Miller

factors, defendant was sentenced to life in prison without

the possibility of parole. In a published opinion, the Court

of Appeals affirmed defendant’s convictions and would

have affirmed his sentence but for Skinner, which held

that a jury must decide whether to impose a

life-without-parole sentence on a juvenile. People v.

Hyatt, 314 Mich. App. 140, 885 N.W.2d 900 (2016).

The Court of Appeals declared a conflict pursuant to

MCR 7.215(J) and, in a published decision, the conflict

panel unanimously disagreed with Skinner and held that a

judge may decide whether to impose a nonparolable life

sentence on a juvenile. Hyatt, 316 Mich. App. at 415, 891

N.W.2d 549. However, the Court of Appeals reversed

defendant’s life-without-parole sentence and remanded

the case to the trial court for resentencing at which “the

trial court must not only consider the Miller factors, but

decide whether defendant Hyatt is the truly rare juvenile

mentioned in Miller who is incorrigible and incapable of

reform.” Id. at 429, 891 N.W.2d 549. We directed that

oral argument be heard on the prosecutor’s application for

leave to appeal and instructed the parties to address

“whether the conflict-resolution panel of the Court of

Appeals erred by applying a heightened standard of

review for sentences imposed under MCL 769.25.”

People v. Hyatt, 500 Mich. 929, 929-930, 889 N.W.2d

487 (2017).

II. STANDARD OF REVIEW

[2] [3]

Matters of constitutional and statutory interpretation

are reviewed de novo. **297 People v. Hall, 499 Mich.

446, 452, 884 N.W.2d 561 (2016). In analyzing

constitutional challenges to statutes, this Court’s

“authority to invalidate laws is limited and must be

predicated on a clearly apparent demonstration of

unconstitutionality.” *100 People v. Harris, 495 Mich.

120, 134, 845 N.W.2d 477 (2014). We require these

challenges to meet such a high standard because

“[s]tatutes are presumed to be constitutional, and we have

a duty to construe a statute as constitutional unless its

unconstitutionality is clearly apparent.” In re Sanders,

495 Mich. 394, 404, 852 N.W.2d 524 (2014), citing

Taylor v. Gate Pharm., 468 Mich. 1, 6, 658 N.W.2d 127

(2003).

III. BACKGROUND

The issue here involves the interplay between the Sixth

and Eighth Amendments of the United States

Constitution. The Sixth Amendment provides, in pertinent

part:

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the State and the

district wherein the crime shall

have been committed.... [U.S.

Const., Am. VI.]

The Eighth Amendment provides:

Excessive bail shall not be

required, nor excessive fines

imposed, nor cruel and unusual

punishments inflicted. [U.S. Const.,

Am. VIII.]

Specifically, the issue here is whether Apprendi v. New

Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), and its progeny require jury findings beyond a

reasonable doubt before a sentence of life without parole

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

may be imposed on a person under the age of 18 under

MCL 769.25.

MCL 750.316(1) provides, in pertinent part:

Except as provided in sections 25 and 25a of chapter IX

of the code of criminal procedure, 1927 PA 175, 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:

*101 (a) Murder perpetrated by means of poison, lying

in wait, or any other willful, deliberate, and

premeditated killing.

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 *102 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).

***

(b) Murder committed in the perpetration of, or attempt

to perpetrate, arson, criminal sexual conduct in the first,

second, or third degree, child abuse in the first degree,

a major controlled substance offense, robbery,

carjacking, breaking and entering of a dwelling, home

invasion in the first or second degree, larceny of any

kind, extortion, kidnapping, vulnerable adult abuse in

the first or second degree under [MCL 750.145n],

torture under [MCL 750.85], aggravated stalking under

[MCL 750.411i], or unlawful imprisonment under

[MCL 750.349b].

MCL 769.25, which was enacted in the wake of Miller,

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 **298 parole if the individual is or was

convicted of any of the following violations:

(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] 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.

In People v. Carp, 496 Mich. 440, 852 N.W.2d 801

(2014), this Court noted that

***

(d) Any violation of law involving the death of another

person for which parole eligibility is expressly denied

under state law.

(3) ... If the prosecuting attorney intends to seek a

sentence of imprisonment for life without the

[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 *103 before turning 18 years of

age. Pursuant to the new law, absent a motion by the

prosecutor seeking a sentence of life without parole,

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

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. [Id. at

440, 852 N.W.2d 801, quoting MCL 769.25.]

A. UNITED STATES SUPREME COURT PRECEDENT

[4]

Apprendi, 530 U.S. at 490, 120 S.Ct. 2348, held that

“[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.” (Emphasis added.) In

other words, any fact that “expose[s] the defendant to a

greater punishment than that authorized by the jury’s

guilty verdict” is an “element” that must be submitted to a

jury. Id. at 494, 120 S.Ct. 2348 (emphasis added). See

also Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004) (“[T]he ‘statutory

maximum’ for Apprendi purposes 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.”) (emphasis altered).

In Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428,

153 L.Ed.2d 556 (2002), the Court held that the jury,

rather than the judge, must determine whether an

aggravating circumstance exists in order to impose **299

the death penalty.1 In addition, in Hurst v. Florida, 577

U.S. ––––, ––––, 136 S.Ct. 616, 619, 193 L.Ed.2d 504

(2016), the Court held that “[t]he Sixth Amendment

requires a *104 jury, not a judge, to find each fact

necessary to impose a sentence of death” and that “[a]

jury’s mere recommendation [of a death sentence] is not

enough” to satisfy the Sixth Amendment.2

Miller, 567 U.S. at 465, 132 S.Ct. 2455, 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 on ‘cruel and unusual

punishments.’ ” (Emphasis added.) Instead, “a judge or

jury must have the opportunity to consider mitigating

circumstances before imposing the harshest possible

penalty for juveniles.” Id. at 489, 132 S.Ct. 2455

(emphasis added).3 The Court indicated that the following

factors should be taken into consideration: “[defendant’s]

chronological age and its hallmark features—among

them, immaturity, impetuosity, *105 and failure to

appreciate risks and consequences”; “the family and home

environment that surrounds him—and from which he

cannot usually extricate himself—no matter how brutal or

dysfunctional”; “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”; whether “he might have been charged

[with] 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 “the possibility of

rehabilitation....” Id. at 477-478, 132 S.Ct. 2455.

Although the Court declined to address the “alternative

argument that the Eighth Amendment requires a

categorical bar on life without parole for juveniles, or at

least for those 14 and younger,” it stated:

But given all we have said in Roper,[4] Graham,[5] and

this decision about children’s **300 diminished

culpability and heightened capacity for change, we

think appropriate occasions for sentencing juveniles to

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.” Although we do not foreclose a

sentencer’s ability to make that judgment in *106

homicide cases, we require it to take into account how

children are different, and how those differences

counsel against irrevocably sentencing them to a

lifetime in prison. [Id. at 479-480, 132 S.Ct. 2455

(citation omitted).]

Subsequently, in Montgomery v. Louisiana, 577 U.S.

––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the Court

held that Miller applies retroactively to juvenile offenders

whose convictions and sentences were final when Miller

was decided because Miller announced a new substantive

rule by rendering life without parole an unconstitutional

penalty for a specific class of juvenile defendants. Id. at

––––, 136 S.Ct. at 734 (citation omitted). Montgomery

noted that Miller indicated that it would be the “rare

juvenile offender who exhibits such irretrievable

depravity that rehabilitation is impossible and life without

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

parole is justified” and that “Miller made clear that

‘appropriate occasions for sentencing juveniles to this

harshest possible penalty will be uncommon.’ ” Id. at

––––, 136 S.Ct. at 733-734, quoting Miller, 567 U.S. at

479, 132 S.Ct. 2455. On this basis, Montgomery

concluded:

Miller, then, did more than require a sentencer to

consider a juvenile offender’s youth before imposing

life without parole; it established that the penological

justifications for life without parole collapse in light of

“the distinctive attributes of youth.” Even if a court

considers a child’s age before sentencing him or her to

a lifetime in prison, that sentence still violates the

Eighth Amendment for a child whose crime reflects “

‘unfortunate yet transient immaturity.’ ” Because

Miller determined that sentencing a child to life without

parole is excessive for all but “ ‘the rare juvenile

offender whose crime reflects irreparable corruption,’ ”

it rendered life without parole an unconstitutional

penalty for “a class of defendants because of their

status”—that is, juvenile offenders whose crimes

reflect the transient immaturity of youth. [Id. at ––––,

136 S.Ct. at 734 (citations omitted).]

*107 In response to the state’s argument that “Miller

cannot have made a constitutional distinction between

children whose crimes reflect transient immaturity and

those whose crimes reflect irreparable corruption because

Miller did not require trial courts to make a finding of fact

regarding a child’s incorrigibility,” the Court stated:

That this finding is not required ... speaks only to the

degree of procedure Miller mandated in order to

implement its substantive guarantee. When a new

substantive rule of constitutional law is established, this

Court is careful to limit the scope of any attendant

procedural requirement to avoid intruding more than

necessary upon the States’ sovereign administration of

their criminal justice systems. See **301 Ford [v.

Wainwright, 477 U.S. 399, 416-417, 106 S.Ct. 2595, 91

L.Ed.2d 335] (1986) (“[W]e leave to the State[s] the

task of developing appropriate ways to enforce the

constitutional restriction upon [their] execution of

sentences[.]”). Fidelity to this important principle of

federalism, however, should not be construed to

demean the substantive character of the federal right at

issue. That Miller did not impose a formal factfinding

requirement does not leave States free to sentence a

child whose crime reflects transient immaturity to life

without parole. To the contrary, Miller established that

this punishment is disproportionate under the Eighth

Amendment. [Id. at ––––, 136 S.Ct. at 735.]

The Court concluded that “prisoners like Montgomery

must be given the opportunity to show their crime did not

reflect irreparable corruption; and, if it did not, their hope

for some years of life outside prison walls must be

restored.” Id. at –––– 136 S.Ct. at 736-737.

B. MICHIGAN COURT OF APPEALS

The Court of Appeals in Skinner held that MCL 769.25

violates the Sixth Amendment because it allows the

decision whether to impose a sentence of life *108

without parole to be made by a judge, rather than by a

jury beyond a reasonable doubt. The Court of Appeals

reasoned that, pursuant to MCL 769.25, “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.” Skinner, 312 Mich. App. at 43, 877

N.W.2d 482. In other words, the jury’s verdict only

supported a term-of-years sentence. In order to impose a

life-without-parole sentence, the trial court has to engage

in fact-finding, and this violates defendant’s Sixth

Amendment right to a jury because any fact that increases

a defendant’s sentence must be decided by the jury.

The Court of Appeals further held that the statutory

maximum penalty for first-degree murder for juveniles

cannot be life without parole because this would violate

Miller given that, under Miller, a mandatory default

life-without-parole sentence for juveniles violates the

Eighth Amendment. Miller requires additional

fact-finding before a life-without-parole sentence can be

imposed. More specifically, Miller requires the trial court

to find that the defendant is one of those rare juvenile

defendants that is irreparably corrupt and incapable of

rehabilitation before the trial court can impose a

life-without-parole sentence.

The Skinner dissent, on the other hand, concluded that

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917 N.W.2d 292

there was no Sixth Amendment violation because “neither

Miller nor the statute sets forth any particular facts that

must be found before a sentence of life without parole

may be imposed.” Id. at 74, 877 N.W.2d 482 (SAWYER,

J., dissenting). The dissent rejected the majority’s

conclusion that Miller requires a finding of “irreparable

corruption” in order for the Eighth Amendment to *109

allow the imposition of a life-without-parole sentence for

a juvenile. Id. at 76, 877 N.W.2d 482. It also rejected the

majority’s conclusion that MCL 769.25 creates a default

term-of-years sentence, at least after the prosecutor moves

for a life-without-parole sentence. Id. at 77, 877 N.W.2d

482.

In Hyatt, the Court of Appeals agreed with the Court of

Appeals dissent in Skinner and therefore declared a

conflict with Skinner. The conflict panel also agreed with

the Court of Appeals dissent in Skinner. Hyatt, 316 Mich.

App. at 403, 891 N.W.2d 549, held that “[t]he

considerations required by Miller ’s individualized

sentencing **302 guarantee are sentencing factors, not

elements that must be found before a more severe

punishment is authorized.” It held that although “a

sentencing judge will necessarily engage in fact-finding

during the Miller analysis,” this fact-finding will not

increase the defendant’s sentence beyond that authorized

by the jury’s verdict because the jury’s verdict alone

authorizes a life-without-parole sentence. Id. at 406, 891

N.W.2d 549. In other words, “[t]he analysis involving the

Miller factors does not aggravate punishment; instead, the

analysis acts as a means of mitigating punishment because

it acts to caution the sentencing judge against imposing

the maximum punishment authorized by the jury’s

verdict, a sentence which Montgomery cautioned is

disproportionate for the vast majority of juvenile

offenders[.]” Id. at 409, 891 N.W.2d 549 (quotation

marks and citation omitted).

However, Hyatt also held that “a sentencing court must

begin its analysis with the understanding that life without

parole is, unequivocally, only appropriate in rare cases.”

Id. at 419-420, 891 N.W.2d 549. In addition, with regard

to the appellate standard of review, Hyatt held that “the

imposition of a life-without-parole sentence on a juvenile

requires a heightened degree of scrutiny regarding

whether a life-without-parole sentence is proportionate

*110 to a particular juvenile offender, and even under this

deferential standard, an appellate court should view such

a sentence as inherently suspect.” Id. at 424, 891 N.W.2d

549. Finally, Hyatt reversed defendant’s sentence and

remanded the case to the trial court for reconsideration

because although the trial court considered the Miller

factors, it did not consider whether Hyatt was “the truly

rare juvenile mentioned in Miller who is incorrigible and

incapable of reform,” which the trial court must do before

imposing a life-without-parole sentence. Id. at 429, 891

N.W.2d 549.6

IV. ANALYSIS

A. JUDGE OR JURY

[5]

These cases present a difficult issue because the

pertinent United States Supreme Court opinions are not

models of clarity, nor is the Legislature’s response to

Miller, i.e., MCL 769.25. Under these circumstances, it is

especially important to remember that “[s]tatutes are

presumed to be constitutional, and we have a duty to

construe a statute as constitutional unless its

unconstitutionality is clearly apparent.” In re Sanders,

495 Mich. at 404, 852 N.W.2d 524, citing Taylor, 468

Mich. at 6, 658 N.W.2d 127. That is, *111 assuming that

there are two reasonable ways of interpreting MCL

769.25—one that renders the statute unconstitutional and

one that renders it constitutional—we should choose the

interpretation that renders the statute constitutional. Evans

Prod. Co. v. Fry, 307 Mich. 506, 533-534, 12 N.W.2d

448 (1943) (“[I]t is our duty to adopt such a construction,

if admissible, which will uphold validity **303 rather

than destroy a legislative enactment” and “ ‘[i]n cases of

doubt, every possible presumption, not clearly

inconsistent with the language and the subject matter, is to

be made in favor of the constitutionality of the act.’ ”)

(citation omitted); Grebner v. State, 480 Mich. 939, 940,

744 N.W.2d 123 (2007) (“This Court ‘must presume a

statute is constitutional and construe it as such, unless the

only proper construction renders the statute

unconstitutional.’ ”) (citation omitted); Greater Bible Way

Temple of Jackson v. City of Jackson, 478 Mich. 373, 408

n. 27, 733 N.W.2d 734 (2007) (“Whenever possible,

courts should construe statutes in a manner that renders

them constitutional.”) In the end, we do not believe that it

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917 N.W.2d 292

is “clearly apparent” that MCL 769.25 is unconstitutional.

In re Sanders, 495 Mich. at 404, 852 N.W.2d 524.

[6]

The precise issue here is whether MCL 769.25

“removes the jury from the determination of a fact that, if

found, exposes the criminal defendant to a penalty

exceeding the maximum he would receive if punished

according to the facts reflected in the jury verdict alone”

in violation of the Sixth Amendment. Apprendi, 530 U.S.

at 482-483, 120 S.Ct. 2348 (emphasis omitted). In other

words, “[i]f the jury’s verdict alone does not authorize the

sentence, if, instead, the judge must find an additional fact

to impose the longer term, the Sixth Amendment

requirement is not satisfied.” Cunningham v. California,

549 U.S. 270, 290, 127 S.Ct. 856, 166 L.Ed.2d 856

(2007). Therefore, the pertinent question *112 is whether

MCL 769.25 requires the trial court to find an additional

fact before it can sentence a juvenile to life without parole

or whether the jury’s verdict alone exposes a juvenile to a

life-without-parole sentence. MCL 769.25 certainly does

not expressly require the court to find any particular fact

before imposing life without parole and we should not

read such a requirement into the statute, especially given

that doing so would render the statute unconstitutional

because “[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.” Ring, 536

U.S. at 602, 122 S.Ct. 2428.7

MCL 769.25(3) does require the prosecutor to file a

motion to seek a life-without-parole sentence for a

defendant less than 18 years old, and this motion must

specify the grounds on which the prosecutor is requesting

such a sentence. If such a motion is not filed, the trial

court must sentence the juvenile to a term-of-years

sentence. MCL 769.25(4) and (9). It is argued that

because the “default” sentence is a term-of-years

sentence, see Carp, 496 Mich. at 458, 852 N.W.2d 801,8

anything **304 other *113 than a term-of-years sentence,

i.e., life without parole, requires that facts be found by the

jury. However, this is too simplistic a view. The real

question is whether, for Sixth Amendment purposes,

some sort of factual finding is required to go above the

“default” sentence. Just because the prosecutor has to file

a motion to seek a life-without-parole sentence in order to

avoid the default term-of-years sentence does not mean

that additional fact-finding is required before a

life-without-parole sentence can be imposed. That is, the

mere fact that a term-of-years sentence constitutes the

default sentence in the absence of a motion filed by the

prosecutor seeking a life-without-parole sentence does not

mean that the jury must find additional facts before a

life-without-parole sentence can be imposed. In other

words, just because some legislative procedural

precondition must be satisfied after the jury renders its

verdict before a life-without-parole sentence can be

imposed does not mean that the facts reflected in the jury

verdict alone do not authorize the imposition of a

life-without-parole sentence. The critical question is

whether additional factual findings have to be made, not

whether an additional motion has to be filed.

However, MCL 769.25 requires more than that a motion

be filed. It also requires the court to conduct a hearing to

consider the Miller factors, MCL 769.25(6), and to

“specify on the record the aggravating and mitigating

circumstances considered by the court and the court’s

reasons supporting the sentence imposed,” MCL

769.25(7). While the statute does not expressly *114

require any specific finding of fact to be made before a

life-without-parole sentence can be imposed, it is argued

by defendants and the dissent that the statute implicitly

requires a finding of fact to be made before a

life-without-parole sentence can be imposed given that

the statute requires the court to specify the aggravating

and mitigating circumstances considered by the court and

its reasons supporting the sentence imposed. In other

words, although the statute does not expressly state that

the trial court must find an aggravating circumstance

before it imposes a life-without-parole sentence, it

implicitly requires such a finding. While this argument is

not unreasonable, it is also not “clearly apparent” that

such a finding is required. In re Sanders, 495 Mich. at

404, 852 N.W.2d 524.

[7]

To begin with, MCL 769.25(6) merely requires the trial

court to “consider the factors listed in Miller....”9 The

following are the factors listed in Miller: (1) “his

chronological age and its hallmark features—among

them, immaturity, impetuosity, and failure to appreciate

risks and consequences”; (2) “the family and home

environment that surrounds him—and from which he

cannot usually extricate **305 himself—no matter how

brutal or dysfunctional”; (3) “the circumstances of the

*115 homicide offense, including the extent of his

participation in the conduct and the way familial and peer

pressures may have affected him”; (4) whether “he might

have been charged [with] and convicted of a lesser

offense if not for incompetencies associated with

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917 N.W.2d 292

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 (5) “the

possibility of rehabilitation....” Miller, 567 U.S. at

477-478, 132 S.Ct. 2455. It is undisputed that all of these

factors are mitigating factors. Id. at 489, 132 S.Ct. 2455

(“[A] judge or jury must have the opportunity to consider

mitigating circumstances before imposing the harshest

possible penalty for juveniles.”) (emphasis added). That

is, these are factors that “counsel against irrevocably

sentencing [juveniles] to a lifetime in prison.” Id. at 480,

132 S.Ct. 2455. The Sixth Amendment does not prohibit

trial courts from considering mitigating circumstances in

choosing an appropriate sentence because the

consideration of mitigating circumstances does not expose

a defendant to a sentence that exceeds the sentence that is

authorized by the jury’s verdict.10 In other words, the

Sixth Amendment only prohibits fact-finding that

increases a defendant’s sentence; it does not prohibit

fact-finding *116 that reduces a defendant’s sentence.11

Therefore, the requirement in **306 MCL 769.25(6) that

the court consider the Miller factors does not violate the

Sixth Amendment.

MCL 769.25(7), however, requires still more. It requires

the court to “specify on the record the aggravating and

mitigating circumstances considered by the court and the

court’s reasons supporting the sentence *117 imposed.”

Id. Aggravating circumstances, unlike mitigating

circumstances, do have the effect of increasing a

defendant’s sentence. The question at issue here,

however, is whether aggravating circumstances increase a

defendant’s sentence beyond that authorized by the jury’s

verdict. The answer to that question is “no,” because the

trial court does not have to find an aggravating

circumstance in order to sentence a juvenile to life

without parole.12 If the trial court simply finds that there

are no mitigating circumstances, it can sentence a juvenile

to life without parole. There is nothing in the statute that

prohibits this.

[8] [9]

While the statute requires the trial court to consider

the aggravating and mitigating circumstances and to

specify the court’s reasons supporting the sentence

imposed, the court could find that there are no mitigating

or aggravating circumstances and that is why it is

imposing

life-without-parole

sentence.

This

demonstrates that a life-without-parole sentence is

authorized by the jury’s verdict alone. That is, given that

the statute does not require the trial court to affirmatively

find an aggravating circumstance in order to impose a

life-without-parole sentence, such a sentence is

necessarily *118 authorized by the jury’s verdict alone.13

And given that a life-without-parole sentence is

authorized by the jury’s verdict alone, additional

fact-finding by the court is not prohibited by the Sixth

Amendment.14 In other words, a **307 factual finding

made by the court that an aggravating circumstance exists

does not violate the Sixth Amendment because it does not

expose the defendant to an enhanced sentence, i.e., a

sentence that exceeds the one authorized by the jury’s

verdict alone. See Apprendi, 530 U.S. at 481, 120 S.Ct.

2348 (“We should be clear that nothing in this history

suggests that it is impermissible for judges to exercise

discretion—taking *119 into consideration various factors

relating both to offense and offender—in imposing a

judgment within the range prescribed by statute.”)

(emphasis omitted); Alleyne v. United States, 570 U.S. 99,

116, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (“Our ruling

today does not mean that any fact that influences judicial

discretion must be found by a jury. We have long

recognized that broad sentencing discretion, informed by

judicial factfinding, does not violate the Sixth

Amendment.”). The United States Supreme Court’s

“Sixth Amendment cases do not automatically forbid a

sentencing court to take account of factual matters not

determined by a jury and to increase the sentence in

consequence.” Rita v. United States, 551 U.S. 338, 352,

127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Instead, “[t]he

Sixth Amendment question, the Court has said, is whether

the law forbids a judge to increase a defendant’s sentence

unless the judge finds facts that the jury did not find (and

the offender did not concede).” Id. Nothing within MCL

769.25 forbids the judge from imposing a

life-without-parole sentence unless the judge finds facts

that the jury did not find (and the offender did not

concede). In other words, MCL 769.25 does not require

the trial court to make any particular factual finding

before it can impose a life-without-parole sentence.

The next question is whether the Eighth Amendment,

under Miller or Montgomery, requires additional

fact-finding before a life-without-parole sentence can be

imposed. On the one hand, there is language in both

Miller and Montgomery that at least arguably would

suggest that a finding of irreparable corruption is required

before a life-without-parole sentence can be imposed. For

example, Miller, 567 U.S. at 479-480, 132 S.Ct. 2455,

stated:

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917 N.W.2d 292

[G]iven all we have said in Roper, Graham, and this

decision about children’s diminished culpability and

*120 heightened capacity for change, we think

appropriate occasions for sentencing juveniles to 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.” Although we do not foreclose a

sentencer’s ability to make that judgment in homicide

cases, we require it to take into account how children

are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison.

[Citations omitted.]

This language conceivably could be read to suggest that

the sentencer must find that the juvenile offender’s crime

reflects irreparable corruption before a life-without-parole

sentence can be imposed.

However, Miller clarified that it was only holding that

“mandatory life-without-parole **308 sentences for

juveniles violate the Eighth Amendment,” id. at 470, 132

S.Ct. 2455 (emphasis added), and that “a sentencer [must]

have the ability to consider the mitigating qualities of

youth,” id. at 476, 132 S.Ct. 2455 (quotation marks and

citation omitted). The Court expressly stated that Miller

“does not categorically bar a penalty for a class of

offenders or type of crime....” Id. at 483, 132 S.Ct. 2455.

“Instead, it mandates only that a sentencer follow a

certain process—considering an offender’s youth and

attendant characteristics—before imposing a particular

penalty.” Id. (emphasis added). In other words, Miller

simply held that mandatory life-without-parole sentences

for juveniles violate the Eighth Amendment and that

before such a sentence can be imposed on a juvenile, the

sentencer must consider the mitigating qualities of youth.

Miller thus did not hold that a finding of “irreparable

corruption” must be made before a life-without-parole

sentence can be imposed on a juvenile.

*121 As noted earlier, there is also language in

Montgomery that arguably would seem to suggest that a

finding of irreparable corruption is required before a

life-without-parole sentence can be imposed. For

example, Montgomery, 577 U.S. at ––––, 136 S.Ct. at

732, 734, held that “Miller announced a substantive rule,”

rather than a procedural rule, because Miller “did more

than require a sentencer to consider a juvenile offender’s

youth before imposing life without parole; it established

that the penological justifications for life without parole

collapse in light of ‘the distinctive attributes of youth.’ ”

(Citation omitted.) Therefore, “[e]ven if a court considers

a child’s age before sentencing him or her to a lifetime in

prison, that sentence still violates the Eighth Amendment

for a child whose crime reflects unfortunate yet transient

immaturity.” Id. at ––––, 136 S.Ct. at 734 (quotation

marks and citations omitted). In other words, “[b]ecause

Miller determined that sentencing a child to life without

parole is excessive for all but the rare juvenile offender

whose crime reflects irreparable corruption, it rendered

life without parole an unconstitutional penalty for a class

of defendants because of their status—that is, juvenile

offenders whose crimes reflect transient immaturity of

youth.” Id. at ––––, 136 S.Ct. at 734 (quotation marks and

citations omitted). See also id. at ––––, 136 S.Ct. at 734

(“Miller did bar life without parole, however, for all but

the rarest of juvenile offenders, those whose crimes

reflect permanent incorrigibility.”). This language could

also be read as suggesting that a finding of irreparable

corruption or permanent incorrigibility must be made

before a life-without-parole sentence can be imposed on a

juvenile.

However, Montgomery itself expressly stated that this is

not the case: “Miller did not require trial courts to make a

finding of fact regarding a child’s incorrigibility.” Id. at

––––, 136 S.Ct. at 735. Montgomery further explained:

*122 That this finding is not required, however, speaks

only to the degree of procedure Miller mandated in

order to implement its substantive guarantee. When a

new substantive rule of constitutional law is

established, this Court is careful to limit the scope of

any attendant procedural requirement to avoid intruding

more than necessary upon the States’ sovereign

administration of their criminal justice systems. See

Ford [v. Wainwright, 477 U.S. 399, 416-417, 106 S.Ct.

2595, 91 L.Ed.2d 335] (1986) (“[W]e leave to the

State[s] the task of developing appropriate ways to

enforce the constitutional restriction upon [their]

execution of sentences.”). Fidelity to this important

principle of federalism, however, should not be

construed to demean the substantive character of the

**309 federal right at issue. That Miller did not impose

a formal factfinding requirement does not leave States

free to sentence a child whose crime reflects transient

immaturity to life without parole. To the contrary,

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917 N.W.2d 292

Miller established that this punishment is

disproportionate under the Eighth Amendment. [Id. at

––––, 136 S.Ct. at 735 (alterations in original).]

Given that Montgomery expressly held that “Miller did

not require trial courts to make a finding of fact regarding

a child’s incorrigibility,” id. at ––––, 136 S.Ct. at 735,15

we likewise hold that Miller does not require trial courts

to make a finding of fact regarding a child’s

incorrigibility.16

*123 [10] [11] [12] [13]Montgomery held that while the

substantive rule is that juveniles who are not “irreparably

corrupt” cannot be sentenced to life without parole, the

states are free to develop their own procedures to enforce

this new substantive rule.17 In **310 this sense, the

“irreparable corruption” *125 standard is analogous to the

proportionality standard that applies to all criminal

sentences. See Montgomery, 577 U.S. at ––––, 136 S.Ct.

at 726 (“[A] lifetime in prison is a disproportionate

sentence for all but the rarest of children, those whose

crimes reflect ‘irreparable corruption.’ ”) (quotation

marks and citations omitted). Just as courts are not

allowed to impose disproportionate sentences, courts are

not allowed to sentence juveniles who are not irreparably

corrupt to life without parole. And just as whether a

sentence is proportionate is not a factual finding, whether

a juvenile is “irreparably corrupt” is not a factual

finding.18 In other words, the Eighth Amendment does not

require the finding of any particular fact before imposing

a life-without-parole sentence, and **311 therefore the

Sixth Amendment is not violated by allowing the trial

court to decide whether to impose life without parole.19

*126 This conclusion is further supported by the fact that

all the courts that have considered this issue have likewise

concluded that the Sixth Amendment is not violated by

allowing the trial court to decide whether to impose life

without parole. See, for example, State v. Lovette, 233

N.C. App. 706, 719, 758 S.E.2d 399 (2014) (“[A] finding

of irreparable corruption is not required....”); State v.

Fletcher, 149 So.3d 934, 943 (La App., 2014) (“Miller

does not require proof of an additional element of

‘irretrievable depravity’ or ‘irrevocable corruption’ ”);

Commonwealth v. Batts, 640 Pa. 401, 478, 163 A.3d 410,

456 (2017) (“We further disagree with [the defendant]

that a jury must make the finding regarding a juvenile’s

eligibility to be sentenced to life without parole.”);20

People v. Blackwell, 3 Cal. App. 5th 166, 194, 207

Cal.Rptr.3d 444 (2016) (“Miller does not require

irreparable corruption be proved to a jury beyond a

reasonable doubt in order to ‘aggravate’ or *127

‘enhance’ the sentence for [a] juvenile offender convicted

of homicide.”);21 State v. Ramos, 187 Wash. 2d 420,

436-437, 387 P.3d 650 (2017) (“Miller ... does not require

the sentencing court ... to make an explicit finding that the

offense reflects irreparable corruption on the part of the

juvenile.”).

B. IMPOSITION OF LIFE WITHOUT PAROLE

Hyatt, 316 Mich. App. at 421, 891 N.W.2d 549, held that

“the sentencing court must operate under the notion that

more likely than not, life without parole is not

proportionate.” Hyatt also held that “the trial court

committed an error of law by failing to adhere to Miller ’s

and Montgomery ’s directives about the rarity with which

a life-without-parole sentence should be imposed.” Id. at

428, 891 N.W.2d 549. That is, “[w]hen deciding to

sentence defendant Hyatt to life without parole, the **312

trial court focused on the Miller factors[;] [h]owever, the

court gave no credence to Miller ’s repeated warnings that

a life-without-parole sentence should only be imposed on

the rare or uncommon juvenile offender.” Id. Therefore,

the Court of Appeals “reverse[d] defendant Hyatt’s

sentence and remand[ed] to the trial court for

resentencing” and directed the trial court to “not only

consider the Miller factors, but decide whether defendant

Hyatt is the truly rare juvenile mentioned in Miller who is

incorrigible and incapable of reform.” Id. at 429, 891

N.W.2d 549.22

*128 In addition, while Hyatt initially held that “appellate

review of the sentence imposed is for abuse of

discretion,” id. at 423, 891 N.W.2d 549, it subsequently

held that “the imposition of a life-without-parole sentence

on a juvenile requires a heightened degree of scrutiny

regarding whether a life-without-parole sentence is

proportionate to a particular juvenile offender, and even

under this deferential standard, an appellate court should

view such a sentence as inherently suspect,” id. at 424,

891 N.W.2d 549. The Court of Appeals stated, “While we

do not suggest a presumption against the constitutionality

of that sentence, we would be remiss not to note that

review of that sentence requires a searching inquiry into

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917 N.W.2d 292

the record with the understanding that, more likely than

not, a life-without-parole sentence imposed on a juvenile

is disproportionate.” Id. at 425-426, 891 N.W.2d 549.

Contrary to the Court of Appeals’ own contention, this

sounds tantamount to a presumption against

life-without-parole sentences.

The Court of Appeals’ opinion in Hyatt is internally

inconsistent. On the one hand, it held that no factual

finding of irreparable corruption must be made and thus

that no jury is required. On the other hand, it held that the

trial court erred by not explicitly deciding whether

defendant is the truly rare juvenile who is irreparably

corrupt. We hold that the latter conclusion is erroneous.

For the reasons discussed earlier, the trial court is not

obligated to explicitly find that defendant is irreparably

corrupt. See Montgomery, 577 U.S. at ––––, 136 S.Ct. at

735 (“Miller did not require trial courts to make a finding

regarding a child’s incorrigibility.”). The trial court also

does not have to explicitly find that defendant is “rare.”

Indeed, we cannot even imagine how a trial court would

go about determining whether a particular defendant is

“rare” or not.

*129 Miller used the word “uncommon” only once and

the word “rare” only once, and when those words are read

in context it is clear that the Court did not hold that a trial

court must explicitly find that a defendant is “rare” or

“uncommon” before it can impose life without parole.

Miller, 567 U.S. at 479-480, 132 S.Ct. 2455, stated:

[G]iven all we have said ... about children’s diminished

culpability and heightened capacity for change, we

think appropriate occasions for sentencing juveniles to

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.” Although we do not foreclose a

sentencer’s ability to make that judgment in homicide

cases, we require it to take into account how children

are different, and how those differences counsel against

irrevocably **313 sentencing them to a lifetime in

prison. [Emphasis added; citations omitted.]

The first sentence of this paragraph was simply the

Court’s prediction that the imposition of life without

parole on juveniles will be “uncommon.”23 This is

demonstrated by the use of the word “think” rather *130

than “hold.” The second sentence simply makes the point

that juveniles who are irreparably corrupt are assertedly

“rare.” And the third sentence makes it clear that all

Miller requires sentencing courts to do is to consider how

children are different before imposing life without parole

on a juvenile.

Montgomery quoted Miller ’s references to “uncommon”

and “rare.” In addition, it stated: (1) “Although Miller did

not foreclose a sentencer’s ability to impose life without

parole on a juvenile, the Court explained that a lifetime in

prison is a disproportionate sentence for all but the rarest

of children, those whose crimes reflect ‘irreparable

corruption’ ”; (2) Miller “recognized that a sentencer

might encounter the rare juvenile offender who exhibits

such irretrievable depravity that rehabilitation is

impossible and life without parole is justified”; (3)

“Miller did bar life without parole, however, for all but

the rarest of juvenile offenders, those whose crimes

reflect permanent incorrigibility”; (4) “After Miller, it will

be the rare juvenile offender who can receive that same

sentence”; and (5) “Miller drew a line between children

whose crimes reflect transient immaturity and those rare

children whose crimes reflect irreparable corruption.”

Montgomery, 577 U.S. at ––––, 136 S.Ct. at 733-734

(quotation marks and citations omitted; emphasis added).

Again, these statements simply make the point that

juvenile offenders who are deserving of life without

parole are rare. To begin with, only those juvenile

offenders who have been convicted of first-degree murder

can be subject to life without parole, which is a small

percentage of juvenile offenders. In addition, since Miller,

the only juvenile offenders who can be sentenced to life

without parole are those who have been convicted of

first-degree murder and whose mitigating circumstances

do not require a lesser sentence. In other words, Miller

*131 and Montgomery simply noted that those juvenile

offenders who are deserving of life-without-parole

sentences are rare; they did not impose any requirement

on sentencing courts to explicitly find that a juvenile

offender is or is not “rare” before imposing life without

parole.24

**314 Similarly, neither Miller nor Montgomery imposes

a presumption against life without parole for those

juveniles who have been convicted of first-degree murder

on either the trial court or the appellate court. Miller and

Montgomery simply require that the trial court consider

“an offender’s youth and attendant characteristics” before

16a

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

imposing life without parole. Miller, 567 U.S. at 483, 132

S.Ct. 2455. Indeed, there is language in Montgomery that

suggests that the juvenile offender bears the burden of

showing that life without parole is not the appropriate

sentence

introducing

mitigating

evidence.

Montgomery, 577 U.S. at ––––, 136 S.Ct. at 736

(“[P]risoners ... must be given the opportunity to show

their crime did not reflect irreparable corruption....”).

[14] [15]

Finally, neither Miller nor Montgomery requires this

Court to deviate from its traditional abuse-of-discretion

standard in reviewing a trial court’s decision to impose

life without parole. This Court reviews sentencing

decisions for an abuse of discretion. See People v.

Milbourn, 435 Mich. 630, 636, 461 N.W.2d 1 (1990)

(“[A] given sentence can be said to constitute an *132

abuse of discretion if that sentence violates the principle

of proportionality, which requires sentences imposed by

the trial court to be proportionate to the seriousness of the

circumstances surrounding the offense and the

offender.”); People v. Steanhouse, 500 Mich. 453, 471,

902 N.W.2d 327 (2017) (“[T]he standard of review to be

applied by appellate courts reviewing a sentence for

reasonableness on appeal is abuse of discretion.”). This

Court has refused to review sentencing decisions de novo.

We do not suggest that in the

day-in-day-out

review

sentencing issues appellate courts

should simply substitute their

judgment for that of the trial court.

Indeed, such de novo review of

sentences would be unprecedented

in the realm of criminal appeals and

at odds with any reasonable

construction of the term “abuse of

discretion.” [Milbourn, 435 Mich.

at 666, 461 N.W.2d 1.]

In People v. Babcock, 469 Mich. 247, 265, 666 N.W.2d

231 (2003), this Court held that a trial court’s decision to

depart from the guidelines will be reviewed for an abuse

of discretion. As this Court explained:

[T]he trial court is optimally situated to understand a

criminal case and to craft an appropriate sentence for

one convicted in such a case....

It is clear that the Legislature has imposed on the trial

court the responsibility of making difficult decisions

concerning criminal sentencing, largely on the basis of

what has taken place in its direct observation. Review

de novo is a form of review primarily reserved for

questions of law, the determination of which is not

hindered by the appellate court’s distance and

separation from the testimony and evidence produced

at trial. The application of the statutory sentencing

guidelines to the facts is

not a generally recurring, purely legal matter, such as

interpreting a set of legal words, say, those of an

individual guideline, in order to determine their *133

basic intent. Nor is that question readily resolved by

reference to general legal principles and standards

alone. Rather, the question at issue grows out of, and

is bounded by, case-specific detailed factual

circumstances. [Buford v. United States, 532 U.S. 59,

65, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001).]

Because of the trial court’s familiarity with the facts

and its experience in sentencing, the trial court is better

situated than the appellate court to determine whether a

departure is warranted in a **315 particular case.

Accordingly, review de novo, in which a panel of

appellate judges could substitute its own judgment for

that of the trial court, is surely not the appropriate

standard by which to review the determination that a

substantial and compelling reason exists to justify a

departure from the guidelines range. Instead, the

appellate court must accord this determination some

degree of deference.

.... At its core, an abuse of discretion standard

acknowledges that there will be circumstances in which

there will be no single correct outcome; rather, there

will be more than one reasonable and principled

outcome. When the trial court selects one of these

principled outcomes, the trial court has not abused its

discretion and, thus, it is proper for the reviewing court

to defer to the trial court’s judgment. An abuse of

discretion occurs, however, when the trial court

chooses an outcome falling outside this principled

range of outcomes....

Accordingly, the Court of Appeals must determine,

upon a review of the record, whether the trial court had

a substantial and compelling reason to depart from the

guidelines, recognizing that the trial court was in the

better position to make such a determination and giving

this determination appropriate deference. The deference

17a

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

that is due is an acknowledgment of the trial court’s

extensive knowledge of the facts and that court’s direct

familiarity with the circumstances of the offender. The

Court of Appeals is to conduct the thorough review

required by MCL 769.34(11), honoring the prohibition

against departures not grounded in a substantial and

compelling reason. MCL 769.34(3). In doing so,

however, *134 the Court must proceed with a caution

grounded in the inherent limitations of the appellate

perspective. [Id. at 267-270, 666 N.W.2d 231 (citations

omitted).] [25]

[16]

The same is true here. The Legislature has imposed on

the trial court the responsibility of making the difficult

decision regarding whether to impose a sentence of life

without parole or a term of years. This decision should be

based on the “ ‘case-specific detailed factual

circumstances.’ ” Id. at 268, 666 N.W.2d 231, quoting

Buford, 532 U.S. at 65, 121 S.Ct. 1276. “Because of the

trial court’s familiarity with the facts and its experience in

sentencing, the trial court is better situated than the

appellate

court

determine”

whether

life-without-parole sentence is warranted in a particular

case. Babcock, 469 Mich. at 268, 666 N.W.2d 231.

“Accordingly, review de novo, in which a panel of

appellate judges could substitute its own judgment for that

of the trial court, is surely not the appropriate standard by

which to review the determination” that a

life-without-parole sentence is warranted. Id. “Instead, the

appellate court must accord this determination some

degree of deference.” Id. at 269, 666 N.W.2d 231. “The

deference that is due is an acknowledgment of the trial

court’s extensive knowledge of the facts and that court’s

direct familiarity with the circumstances of the offender.”

Id. at 270, 666 N.W.2d 231.

The United States Supreme Court has also adopted an

abuse-of-discretion standard for reviewing a trial court’s

sentencing decisions. See **316 Koon v. United States,

518 U.S. 81, 97, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)

(“[I]t is not the role of an appellate court to substitute

*135 its judgment for that of the sentencing court as to the

appropriateness of a particular sentence.”) (quotation

marks and citations omitted); Gall v. United States, 552

U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)

(“[C]ourts of appeals must review all sentences ... under a

deferential abuse-of-discretion standard.”). In Gall, 552

U.S. at 49, 128 S.Ct. 586, the Court expressly rejected the

practice of “applying a heightened standard of review to

sentences outside the Guidelines range,” explaining that

this is “inconsistent with the rule that the

abuse-of-discretion standard of review applies to appellate

review of all sentencing decisions—whether inside or

outside the Guidelines range.” As Gall explained:

The sentencing judge is in a

superior position to find facts and

judge their import ... in the

individual case. The judge sees and

hears

the

evidence,

makes

credibility determinations, has full

knowledge of the facts and gains

insights not conveyed by the

record. The sentencing judge has

access to, and greater familiarity

with, the individual case and the

individual defendant before him

than the Commission or the appeals

court. Moreover, [d]istrict courts

have an institutional advantage

over appellate courts in making

these sorts of determinations,

especially as they see so many

more Guidelines cases than

appellate courts do. [Id. at 51-52,

128 S.Ct. 586 (quotation marks and

citations omitted).]

Particularly relevant to the instant case, Gall held that,

since Koon, the Court had been “satisfied that a more

deferential

abuse-of-discretion

standard

could

successfully balance the need to ‘reduce unjustified

disparities’ across the Nation and ‘consider every

convicted person as an individual.’ ” Id. at 53 n. 8, 128

S.Ct. 586, quoting Koon, 518 U.S. at 113, 116 S.Ct. 2035.

The whole point of Miller is that mandatory

life-without-parole sentences with regard to juveniles are

unconstitutional and that such mandatory sentencing

schemes must be replaced with *136 individualized

sentencing schemes. See Miller, 567 U.S. at 465, 132

S.Ct. 2455 (“Such a scheme prevents those meting out

punishment from considering a juvenile’s ‘lessened

culpability’ and greater ‘capacity for change,’ and runs

afoul of our cases’ requirement of individualized

sentencing for defendants facing the most serious

penalties.”) (citation omitted). And the Court has already

held that a deferential abuse-of-discretion standard is

compatible with a sentencing scheme that considers every

convicted person as an individual. See

18a

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

49, 128 S.Ct. 586; see also United States v. Jefferson, 816

F.3d 1016, 1019 (C.A. 8, 2016) (applying Miller to a

600-month sentence and holding that “[w]e review the

substantive reasonableness of a sentence under a

deferential abuse-of-discretion standard”). Miller called

for individualized sentences, and the trial court is in a

better position than an appellate court to carry this task

out because the trial court will almost always be more

familiar with each individual defendant than is an

appellate court.26

*137 **317 Miller ’s and Montgomery ’s emphasis on the

rarity of juveniles deserving of life-without-parole

sentences does not counsel against applying an

abuse-of-discretion standard. The trial court remains in

the best position to determine whether each particular

defendant is deserving of life without parole. All crimes

have a maximum possible penalty, and when trial judges

have discretion to impose a sentence, the imposition of

the maximum possible penalty for any crime is

presumably “uncommon” or “rare.” Yet this Court has

never imposed a heightened standard of appellate review,

and it should not do so in this instance.27

standard.28

McCormack, J. (dissenting ).

There is much in the majority opinion with which I agree.

For example, I agree that if MCL 769.25 can reasonably

be construed in a constitutional manner, we should so

construe it. And I generally agree with the majority’s

discussion of the applicable legal principles. But I

respectfully dissent from the majority’s conclusion that

there are two reasonable ways of interpreting MCL

769.25, one of which is constitutional. Reading the statute

as “murder-plus”1 would violate the Sixth Amendment

under **318 Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny. And

I disagree with the majority that reading the statute as

“murder-minus”2 cures all its constitutional deficiencies.

In my view, reading the statute as murder-minus *139

renders it unconstitutional under the Eighth Amendment

as interpreted by the United States Supreme Court in

Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183

L.Ed.2d 407 (2012), and Montgomery v. Louisiana, 577

U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Read

either way, MCL 769.25 suffers from a constitutional

deficiency.

V. CONCLUSION

[17]

For these reasons, we hold that the decision to sentence

a juvenile to life without parole is to be made by a judge

and that this decision is to be reviewed under the

traditional abuse-of-discretion standard. Therefore, we

reverse the judgment of the Court of Appeals in Skinner

and affirm that part of Hyatt that held that “[a] judge, not

a jury, must determine whether to impose a

life-without-parole sentence or a term-of-years sentence

under MCL 769.25.” Hyatt, 316 Mich. App. at 415, 891

N.W.2d 549. However, we reverse the part of Hyatt that

adopted a heightened standard of review for

life-without-parole sentences imposed under MCL 769.25

*138 and that remanded that case to the trial court for it to

“decide whether defendant Hyatt is the truly rare juvenile

mentioned in Miller who is incorrigible and incapable of

reform.” Id. at 429, 891 N.W.2d 549. No such explicit

finding is required. Finally, we remand both of these

cases to the Court of Appeals for it to review defendants’

sentences under the traditional abuse-of-discretion

I. MURDER-PLUS VIOLATES THE SIXTH

AMENDMENT

As the majority thoroughly explains, MCL 769.25

requires a prosecutor and a trial court to take additional

steps after a jury has reached a guilty verdict in order for

the court to impose a sentence of life without parole

(LWOP) on a juvenile offender. The prosecutor must file

a motion within the applicable time, the court must

conduct a hearing at which it considers the Miller factors,

and the court must “specify on the record the aggravating

and mitigating circumstances considered by the court and

the court’s reasons supporting the sentence imposed.”

MCL 769.25(7). As the majority appears to recognize, if

19a

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

that last step requires a trial court to make a factual

finding beyond that inherent in the jury’s verdict before it

can impose an LWOP sentence on a juvenile, the statute

would violate Apprendi and its progeny. See Apprendi,

530 U.S. at 490, 120 S.Ct. 2348 (holding that “[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”) (emphasis added).

The majority concludes that reading the statute as

“implicitly” requiring trial courts to find an aggravating

circumstance—a fact that increases the sentence beyond

that authorized by the jury verdict—before it can impose

an LWOP sentence on a juvenile is “not *140

unreasonable....” Ante at 304. I agree; it is not. In fact it is

the more reasonable reading of MCL 769.25(7). The plain

text of that subsection requires a trial court to specify the

aggravating and mitigating circumstances it considered

and its reasons supporting the sentence imposed. Thus, at

minimum when the trial court finds at least one

aggravating circumstance as a basis to impose an LWOP

sentence on a juvenile, the statute violates the Sixth

Amendment by allowing the trial court to increase the

defendant’s sentence on the basis of facts not found by a

jury.

The majority suggests that a trial court could make no

factual findings before imposing an LWOP sentence,

revealing there is no Sixth Amendment flaw in the statute.

I disagree. MCL 769.25 mandates that the court “specify”

circumstances considered and “reasons supporting” its

sentencing decision as part of the hearing mandated

before the court can impose an LWOP sentence on

juvenile. It must follow that a failure to abide by the

statute—imposing an LWOP sentence on a juvenile

without providing such reasons—would result in an

invalid sentence. I see no way to conclude that the jury

verdict alone authorizes an LWOP juvenile sentence

under the statute’s plain language.

**319 The conflict panel in People v. Hyatt, 316 Mich.

App. 368, 405, 891 N.W.2d 549 (2016), erroneously

focused on the prosecutor’s filing of a motion under MCL

769.25(2) as a significant moment resulting “in the

statutory maximum [becoming] life without parole, and

the trial court [having] discretion to sentence up to that

statutory maximum.” The flaw in that argument is that

while the filing of that motion opens the door to a

potential LWOP sentence for a juvenile, it does not alone

establish a sufficient basis for a trial court to *141 impose

such a sentence. MCL 769.25(7) does that work. Only if a

trial court makes the necessary findings under Subsection

(7) does the potential for punishment increase; that is, the

potential for increase depends on those findings. It is the

court’s factual findings made under that subsection, not

the prosecutor’s filing of a motion under MCL 769.25(2),

that “increases the penalty for a crime beyond the

prescribed statutory maximum ....” Apprendi, 530 U.S. at

490, 120 S.Ct. 2348. Without those findings only a

term-of-years sentence is permitted. MCL 769.25(9).3

MCL 769.25 is not materially distinguishable from the

Arizona statute held unconstitutional in Ring v. Arizona,

536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In

Ring, as here, the statute required the trial court to

determine the existence of aggravating or mitigating

circumstances. Indeed, in Ring the statute provided that

first-degree murder “ ‘is punishable by death or life

imprisonment as provided by § 13–703.’ ” Id. at 592, 122

S.Ct. 2428 (citation omitted). The statute in Ring thus

presented the more severe punishment of death as an

equally available alternative more explicitly than MCL

769.25 does with LWOP. Yet the United States Supreme

Court rejected the state’s argument that the defendant had

been “sentenced within the range of punishment

authorized by the jury verdict.” Id. at 604, 122 S.Ct. 2428.

The statutes at issue both in Ring and here provided *142

for one punishment based on the jury verdict (in Ring,

LWOP; here, a term of years), with an enhanced

punishment available only after more proceedings and

fact-finding. See also Hurst v. Florida, 577 U.S. ––––,

136 S.Ct. 616, 621-622, 193 L.Ed.2d 504 (2016) (“The

analysis the Ring Court applied to Arizona’s sentencing

scheme applies equally to Florida’s. Like Arizona at the

time of Ring, Florida does not require the jury to make the

critical findings necessary to impose the death penalty.

Rather, Florida requires a judge to find these facts.”).

The majority believes that Ring is distinguishable because

the statute in that case expressly required the finding of an

aggravating circumstance before the trial court could

impose the death penalty and MCL 769.25 does not

require such a finding before a trial court can impose

LWOP. This distinction lacks significance; in both cases

the authority to impose the increased maximum hinges on

the trial court’s holding a hearing and making additional

findings beyond those found by a jury. That MCL 769.25

does not say that a trial court cannot impose LWOP

unless it first finds an aggravating circumstance makes the

21a

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

enhanced sentence no less contingent on the trial court’s

making additional findings. “When a judge’s finding

based on a mere **320 preponderance of the evidence

authorizes an increase in the maximum punishment, it is

appropriately characterized as ‘a tail which wags the dog

of the substantive offense.’ ” Apprendi, 530 U.S. at 495,

120 S.Ct. 2348, quoting McMillan v. Pennsylvania, 477

U.S. 79, 88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

Nor does the fact that the statute does not require a

particular factual finding before a trial court may impose

LWOP save it from Sixth Amendment peril. Hyatt, 316

Mich. App. at 399, 891 N.W.2d 549 (finding no Sixth

Amendment *143 flaw in MCL 769.25 in part because it

is not “a statutory scheme that makes the imposition of

life without parole contingent on any particular finding”).

This feature simply does not help the statute square with

the applicable Sixth Amendment jurisprudence. “Whether

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 v. Washington, 542 U.S. 296, 305, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004).

Finally, the Hyatt panel’s attempt to sidestep the Sixth

Amendment flaw in MCL 769.25 because the Miller

factors are mere “sentencing factors” rather than elements

that a jury must find before the court may impose an

LWOP sentence does not help. Hyatt, 316 Mich. App. at

403, 891 N.W.2d 549. The United States Supreme Court

has repeatedly rejected this label-based distinction

because the “inquiry is one not of form, but of effect.”

Apprendi, 530 U.S. at 494, 120 S.Ct. 2348; Ring, 536

U.S. at 604, 122 S.Ct. 2428 (quoting Apprendi ). “[T]he

fundamental meaning of the jury-trial guarantee of the

Sixth Amendment is that all facts essential to imposition

of the level of punishment that the defendant

receives—whether the statute calls them elements of the

offense, sentencing factors, or Mary Jane—must be found

by the jury beyond a reasonable doubt.” Ring, 536 U.S. at

610, 122 S.Ct. 2428 (Scalia, J., concurring).

The factual findings required by MCL 769.25(7) are

essentially a prerequisite to a trial court’s ability to

sentence a juvenile to LWOP; the statute tells us so. See

MCL 769.25(3) through (7) (if the prosecutor moves *144

to have the trial court sentence the defendant to LWOP,

the court shall hold a hearing and shall make findings;

otherwise the trial court must sentence the defendant to

the default term-of-years sentence provided in MCL

769.25(9) ). The court’s authority to sentence the

defendant to LWOP is not “derive[d] wholly from the

jury’s verdict.” Blakely, 542 U.S. at 306, 124 S.Ct. 2531.

Instead, it arises only after the court makes additional

factual findings that go beyond the elements of the

convicted offense. The effect of those findings is the

authority to impose an LWOP sentence on a juvenile. So

the statutory scheme falls within the Apprendi rule: “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.” Apprendi,

530 U.S. at 490, 120 S.Ct. 2348.

In short, MCL 769.25(9) authorizes a maximum

term-of-years sentence for juveniles convicted of the

enumerated offenses based solely on the jury’s verdict.

The remainder of the statute requires motion + hearing +

consideration of the Miller factors + a statement of

aggravated and mitigating circumstances considered by

the court and reasons supporting its sentence before a trial

court can impose LWOP on a juvenile. For these reasons,

the most reasonable reading of **321 MCL 769.25,

reading it as murder-plus, violates the Sixth Amendment

of the United States Constitution under Apprendi and its

progeny.

II. MURDER-MINUS VIOLATES THE EIGHTH

AMENDMENT

But, the majority concludes, even if reading the statute as

murder-plus would create a Sixth Amendment obstacle,

we need not be concerned. We just read it as

murder-minus instead. For the majority this is a

reasonable (and constitutional) alternative reading

because *145 “the court could find that there are no

mitigating or aggravating circumstances and that is why it

is imposing a life-without-parole sentence.” Ante at 306.

That interpretation, however, suffers from its own

constitutional flaw—it violates the Eighth Amendment as

interpreted in Miller and Montgomery.

22a

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

In Miller, 567 U.S. at 465, 132 S.Ct. 2455, the United

States Supreme Court held that mandatory LWOP

sentences for juveniles violated the requirement of

“individualized sentencing for defendants facing the most

serious penalties.” The majority’s interpretation of MCL

769.25 as murder-minus, or as allowing a trial court to

impose a sentence of LWOP without making any

additional findings, flouts the individualized sentencing

and rigorous inquiry requirements of Miller and

Montgomery.

The majority disagrees that reading the statute in this way

violates Miller because neither Miller nor Montgomery

requires a trial court to make a specific factual finding

that the juvenile is “irreparably corrupt.” It is right about

that. See Montgomery, 577 U.S. at ––––, 136 S.Ct. at 735

(stating that “Miller did not require trial courts to make a

finding of fact regarding a child’s incorrigibility”);4 but

see, e.g., Veal v. State, 298 Ga. 691, 702, 784 S.E.2d 403

(2016) (concluding that Miller and Montgomery require

“a specific determination that [a defendant] is irreparably

corrupt” before a court may impose an LWOP sentence

on a juvenile). But it does not follow that the court can

find nothing beyond the jury’s verdict before it can

impose an LWOP sentence. Montgomery stated that the

Miller hearing *146 “gives effect to Miller’s substantive

holding that life without parole is an excessive sentence

for children whose crimes reflect transient immaturity.”

Montgomery, 577 U.S. at ––––, 136 S.Ct. at 735. So the

majority’s observation that Miller did not impose a

specific formal fact-finding requirement is beside the

point; what matters is that the Eighth Amendment

requires some additional finding(s) supporting the legal

conclusion that a juvenile’s offense is unusual enough to

warrant an LWOP sentence before a court may impose

such a sentence. Montgomery, 577 U.S. at ––––, 136 S.Ct.

at 734;5 see **322 also Hyatt, 316 Mich. App. at 411, 891

N.W.2d 549 (“Viewing the Miller factors as a means of

mitigation is not to suggest, however, that life without

parole remains the default sentence for juveniles

convicted of first-degree murder.... Indeed, it is doubtful

whether that result could be squared with Miller’s

conclusions about the *147 constitutional infirmities

inherent in a mandatory life-without-parole sentencing

scheme for juveniles.”).

For this reason, the split of authority in state courts

post-Miller on whether a court must make a specific

“finding” of irreparable corruption misses the larger point.

Before a court can sentence a juvenile to LWOP, the court

must make a finding that an LWOP sentence complies

with the dictates of Miller (whatever label or form that

“finding” takes). And, as discussed later, appellate courts

must review that finding de novo because it is a legal

conclusion about whether the sentence is constitutional

under the Eighth Amendment (while reviewing the

underlying facts supporting that “finding” for clear error).

Miller requires something beyond merely a finding that

all the elements of an offense are proved to sentence a

juvenile to LWOP. Instead, “an offender’s age” matters in

determining the appropriateness of an LWOP sentence, as

does “the wealth of characteristics and circumstances

attendant to” youth. Miller, 567 U.S. at 476, 132 S.Ct.

2455. The facts necessary to establish the appropriateness

of an LWOP sentence for a juvenile are therefore specific

to each offender, and the facts found as part of the jury

verdict itself therefore will not, standing alone, sustain

such a sentence.6 A murder-minus *148 reading of the

statute violates Miller because it is the very Sixth

Amendment violation MCL 769.25 creates—requiring the

trial court to make additional findings before sentencing a

juvenile to LWOP—that the Eighth Amendment requires.7

**323 Reading the statute as the majority does renders

meaningless the individualized sentencing required by

Miller by allowing LWOP effectively to serve as the

default sentence as long as the prosecutor files the motion

required under MCL 769.25(2). After all, if a trial court

can simply hold the required hearing, consider the Miller

factors, and declare “I find no mitigating or aggravating

circumstances, so I sentence the defendant to life without

parole,” nothing would preclude trial courts from doing so

in every case. I cannot see how Miller’s dictates are

satisfied by the hollow formality to which the majority’s

holding would reduce the hearing mandated by MCL

769.25(6). And if that is the result, the statutory scheme

necessarily violates the “foundational principle” that

“imposition of a State’s most severe penalties on juvenile

offenders cannot proceed as though they were not

children.” Miller, 567 U.S. at 474, 132 S.Ct. 2455; see

also Landrum v. State, 192 So.3d 459, 460 (Fla., 2016)

(holding that “[e]ven in a *149 discretionary sentencing

scheme, the sentencing court’s exercise of discretion

before imposing a life sentence must be informed by

consideration of the juvenile offender’s ‘youth and its

attendant circumstances’ as articulated in Miller and now

codified in section 921.1401, Florida Statutes (2014)”)

(emphasis added).

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917 N.W.2d 292

Finally, for what it is worth, the Miller Court’s statement

that LWOP sentences for juveniles should be

“uncommon” is entitled to some weight in analyzing this

issue. Miller, 567 U.S. at 479, 132 S.Ct. 2455. Yes, those

statements in Miller were a prediction, or dictum, and not

a rule of law. But Montgomery made them harder to shrug

off. See Montgomery, 577 U.S. at ––––, 136 S.Ct. at 734

(stating that “Miller determined that sentencing a child to

life without parole is excessive for all but ‘the rare

juvenile offender whose crime reflects irreparable

corruption’ ”) (quotation marks and citations omitted); id.

at ––––, 136 S.Ct. at 734 (stating that “Miller did bar life

without parole, however, for all but the rarest of juvenile

offenders”); id. at ––––, 136 S.Ct. at 743 (Scalia, J.,

dissenting) (asserting that “[i]t is plain as day that the

majority is not applying Miller, but rewriting it”); see

also, e.g., Veal, 298 Ga. at 702, 784 S.E.2d 403

(characterizing Montgomery as further “explain[ing]”

Miller’s requirements, including that “by uncommon,

Miller meant exceptionally rare”).8

*150 In my view, interpreting the statute as murder-minus

renders it constitutionally flawed under the Eighth

Amendment. Instead, I believe that “a faithful application

of the holding in Miller, as clarified in Montgomery,

requires the creation of a presumption against sentencing

a juvenile offender to life in prison without the possibility

of parole.” Commonwealth v. Batts, 640 Pa. 401, 472, 163

A.3d 410, 452 (2017);9 see also Atwell v. State, 197 So.3d

1040, 1050 (Fla., 2016) (invalidating under the **324

Eighth Amendment a defendant’s sentence because he

“did not receive the type of individualized sentencing

consideration Miller requires”). Because a murder-minus

interpretation of MCL 769.25 does not allow for such a

presumption, I conclude that the majority’s interpretation

violates Miller.

III. MILLER REQUIRES A HEIGHTENED

STANDARD OF REVIEW FOR JUVENILE LWOP

SENTENCES

Even if I could agree with the majority that MCL 769.25

is constitutional, in my view Miller requires appellate

courts to apply a more searching review to juvenile

LWOP sentences than our traditional abuse-of-discretion

standard. This is so because the review is of the legality of

the sentence; if the sentence is illegal, the court has no

discretion to impose it. “[I]n the absence of the sentencing

court reaching a conclusion, supported by competent

evidence, that the defendant will forever be incorrigible,

without any hope for rehabilitation, *151 a

life-without-parole sentence imposed on a juvenile is

illegal, as it is beyond the court’s power to impose.”

Batts, 163 A.3d at 435.

Whether a juvenile LWOP sentence is a proper exercise

of a sentencing judge’s discretion therefore is the wrong

inquiry; the correct inquiry is whether such a sentence is

constitutional under the Eighth Amendment and Miller.

We review constitutional questions de novo. Why would

we make an exception to that rule here? And other courts

have rightly recognized that de novo review of such

sentences is appropriate. “[W]e must review the

sentencing court’s legal conclusion that [the defendant] is

eligible to receive a sentence of life without parole

pursuant to a de novo standard and plenary scope of

review.” Id.; see also Seats, 865 N.W.2d at 553 (stating

that “[w]hen a defendant attacks the constitutionality of a

sentence, our review is de novo”); Davis, 2018 WY 40,

415 P.3d at 676 (stating that “we review a constitutional

challenge to a sentence de novo”).

Such a conclusion is consistent with the majority’s

discussion of the traditional abuse-of-discretion standard

and why we apply it to sentencing decisions in the

ordinary course. In People v. Babcock, 469 Mich. 247,

268-269, 666 N.W.2d 231 (2003), we observed that

“[r]eview de novo is a form of review primarily reserved

for questions of law” and that “an abuse of discretion

standard acknowledges that there will be circumstances in

which there will be no single correct outcome; rather,

there will be more than one reasonable and principled

outcome.” But a decision whether a particular sentence

satisfies constitutional scrutiny under Miller is precisely

the sort of question of law to which there is only one

correct answer—the sentence is either constitutional or it

is not. There is no room for *152 discretion and therefore

no reason for an appellate court to defer to the trial court’s

decision when reviewing the sentence for Eighth

Amendment compliance.10

As a result, while I disagree with the Hyatt conflict

panel’s decision to cast the **325 standard of review

applicable to juvenile LWOP sentences as a heightened

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version of the traditional abuse-of-discretion standard, I

agree with its bottom line: Appellate courts should apply

a less deferential review to juvenile LWOP sentences. I

would simply call the standard what it is—de novo

review.

sentence on a juvenile because I believe such a reading

violates the Eighth Amendment as the United States

Supreme Court has made plain in Miller and

Montgomery. Finally, given that the majority holds the

statute constitutional, I also dissent from its conclusion

that traditional abuse-of-discretion review applies to

juvenile LWOP sentences. Whether the sentence is

constitutional, like any constitutional question, requires

our de novo review.

IV. CONCLUSION

I respectfully dissent from each of the majority’s

holdings. I would conclude that MCL 769.25 is

unconstitutional because its most natural reading requires

a *153 trial court to make factual findings beyond those

found by the jury before it can impose an LWOP sentence

on a juvenile. I would decline to read the statute not to

require such findings before a court can impose an LWOP

Clement, J., took no part in the decision of this case.

All Citations

502 Mich. 89, 917 N.W.2d 292

Footnotes

The statute at issue in Ring expressly required the finding of an aggravating circumstance before the death penalty

could be imposed. Id. at 592, 122 S.Ct. 2428.

The sentencing scheme at issue in Hurst required the jury to render an “advisory sentence” of life imprisonment or

death without specifying the factual basis of its recommendation. Although the court had the ultimate authority to

impose a sentence of life imprisonment or death, if the court imposed death, it had to set forth its findings in support of

that decision. Hurst, 577 U.S. at ––––, 136 S.Ct. at 622.

In Carp, 496 Mich. at 491 n. 20, 852 N.W.2d 801, this Court noted Miller’s reference to “judge or jury” and indicated

that this

tend[s] to suggest that Miller did not make age or incorrigibility aggravating elements because under Alleyne [v.

United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ] aggravating elements that raise the mandatory

minimum sentence “must be submitted to the jury and found beyond a reasonable doubt[.]” However, because

Alleyne was decided after Miller, Miller’s reference to individualized sentencing being performed by a “judge or jury”

might merely be instructive on the issue but not dispositive. As 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 Alleyne. [Citation and emphasis omitted.]

In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the Court held that the Eighth Amendment

forbids imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the Court held that the Eighth Amendment

forbids imposition of a sentence of life without the possibility of parole for people who committed nonhomicide offenses

when they were under the age of 18.

Judge BECKERING, joined by Judge SHAPIRO, wrote a concurring opinion in which she expressed her view that “a

sentence of life without parole for a juvenile offender constitutes cruel or unusual punishment in violation of the

Michigan Constitution,” even though she recognized that this issue was “unpreserved, scantily briefed, and better left

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for another day.” Id. at 430, 891 N.W.2d 549 (BECKERING, J., concurring). Judge METER, joined by Judges M. J.

KELLY and RIORDAN, agreed with the majority opinion’s conclusion that a judge, not a jury, is to determine whether to

sentence a juvenile to life without parole. Id. at 447, 891 N.W.2d 549 (METER, J., concurring in part and dissenting in

part). However, he dissented from the majority’s review of the judge’s decision to impose life without parole and its

decision to remand for resentencing. Instead, he would have simply affirmed defendant’s sentence. Id. at 448-449, 891

N.W.2d 549.

The instant cases are distinguishable from Ring because while the statute at issue in Ring expressly required the

finding of an aggravating circumstance before the death penalty could be imposed, MCL 769.25 does not expressly (or

otherwise) require the finding of an aggravating circumstance before life without parole can be imposed.

As noted earlier, Carp explained that “[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” because “[p]ursuant 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 [years].’ ”

Carp, 496 Mich. at 458, 852 N.W.2d 801, quoting MCL 769.25(9). A term-of-years sentence is only the “default” under

MCL 769.25 when the prosecutor does not file a motion seeking a life-without-parole sentence. Once the prosecutor

files such a motion, there is no longer any “default” sentence. Instead, the trial court must then consider the Miller

factors and any other relevant factors and exercise its discretion by choosing either a term-of-years sentence or a

life-without-parole sentence.

Italics added. In addition, MCL 769.25(6) provides that the court “may consider any other criteria relevant to its

decision, including the individual’s record while incarcerated.” (Emphasis added.) Given that “may” is permissive, In re

Bail Bond Forfeiture, 496 Mich. 320, 328, 852 N.W.2d 747 (2014), this language clearly does not require the trial court

to engage in fact-finding in violation of the Sixth Amendment. Cf. People v. Lockridge, 498 Mich. 358, 364, 870 N.W.2d

502 (2015) (explaining that the statutory sentencing guidelines violate the Sixth Amendment because “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.”) (emphasis altered).

In Apprendi, 530 U.S. at 491 n. 16, 120 S.Ct. 2348, the Court emphasized the important distinction “between facts in

aggravation of punishment and facts in mitigation,” and it explained:

If facts found by a jury support a guilty verdict of murder, the judge is authorized by that jury verdict to sentence the

defendant to the maximum sentence provided by the murder statute. If the defendant can escape the statutory

maximum by showing, for example, that he is a war veteran, then a judge that finds the fact of veteran status is

neither exposing the defendant to a deprivation of liberty greater than that authorized by the verdict according to

statute, nor is the judge imposing upon the defendant a greater stigma than that accompanying the jury verdict

alone. Core concerns animating the jury and burden-of-proof requirements are thus absent from such a scheme.

Furthermore, the United States Supreme Court does not even view the “mitigating-factor determination” (at least in the

context of death penalty cases) to constitute a factual finding. In Kansas v. Carr, 577 U.S. ––––, 136 S.Ct. 633, 193

L.Ed.2d 535 (2016), the Court held that mitigating circumstances, unlike aggravating circumstances, do not need to be

proven beyond a reasonable doubt. In doing so, it explained that

[w]hether mitigation exists ... is largely a judgment call (or perhaps a value call); what one juror might consider

mitigating another might not. And of course the ultimate question whether mitigating circumstances outweigh

aggravating circumstances is mostly a question of mercy—the quality of which, as we know, is not strained. [Id. at

––––, 136 S.Ct. at 642.]

Similarly, in United States v. Gabrion, 719 F.3d 511, 532-533 (C.A. 6, 2013), the Sixth Circuit held that whether the

aggravating circumstances outweigh the mitigating circumstances is not a fact that must be proved beyond a

reasonable doubt. It explained:

Apprendi findings are binary—whether a particular fact existed or not. [18 USC] 3593(e), in contrast, requires the jury

to “consider” whether one type of “factor” “sufficiently outweigh[s]” another so as to “justify” a particular sentence.

Those terms—consider, justify, outweigh—reflect a process of assigning weights to competing interests, and then

determining, based upon some criterion, which of those interests predominates. The result is one of judgment, of

shades of gray; like saying that Beethoven was a better composer than Brahms. Here, the judgment is moral—for

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the root of “justify” is “just.” What § 3593(e) requires, therefore, is not a finding of fact, but a moral judgment. [Id.]

For the same reasons, a trial court’s decision to impose life without parole after considering the mitigating and

aggravating circumstances is not a factual finding, but a moral judgment.

This perhaps is the critical point at which we and the dissent disagree. The dissent concludes that because MCL

769.25(7) requires the trial court to “specify on the record the aggravating and mitigating circumstances considered by

the court and the court’s reasons supporting the sentence imposed,” the statute necessarily requires the trial court “to

find an aggravating circumstance—a fact that increases the sentence beyond that authorized by the jury

verdict—before it can impose [a life-without-parole] sentence on a juvenile....” We respectfully disagree. Although the

statute requires the trial court to “specify on the record the aggravating and mitigating circumstances considered by the

trial court,” that does not necessarily mean that the trial court must specify an aggravating circumstance before it can

impose a life-without-parole sentence upon a juvenile. Rather, that means simply that if the trial court does consider

any aggravating (or mitigating) circumstances, it must specify those circumstances on the record.

As the Court of Appeals dissent in Skinner noted, that the Legislature did not include any burden of proof in the statute

“further supports the conclusion that the statute does not require any particular finding of fact.” Skinner, 312 Mich. App.

at 74, 877 N.W.2d 482 (SAWYER, J., dissenting). As the dissent explained:

I would suggest that the Legislature did not include a burden of proof out of oversight or a desire to leave it to the

courts to fashion one, but because it was unnecessary because the statute does not require anything to be proved.

Rather, it only requires consideration of the relevant criteria to guide the trial court in determining the appropriate

individualized sentence for the defendant before it. [Id. at 74-75, 877 N.W.2d 482.]

In Blakely, 542 U.S. at 309, 124 S.Ct. 2531, the Court explained:

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. [Emphasis altered.]

Under Michigan’s statutory scheme, in the absence of a finding of an aggravating circumstance, a juvenile does not

have a “legal right to a lesser sentence,” i.e., a term of years rather than life without parole. Therefore, a judge is not

precluded from considering aggravating circumstances in deciding whether to sentence a juvenile to either a term of

years or life without parole because both of those sentences are within the range prescribed by Michigan’s statutory

scheme.

Montgomery, 577 U.S. at ––––, 136 S.Ct. at 726, noted that “Miller required that sentencing courts consider a child’s

diminished culpability and heightened capacity for change before condemning him or her to die in prison.” (Emphasis

added; quotation marks and citation omitted.) See also id. at ––––, 136 S.Ct. at 733 (“Miller requires that before

sentencing a juvenile to life without parole, the sentencing judge take into account how children are different, and how

those differences counsel against irrevocably sentencing them to lifetime in prison.”) (emphasis added; quotation

marks and citation omitted). Just as with the similar language in Miller, we do not place too much weight on this

language given that Montgomery, as with Miller, was not addressing the Sixth Amendment issue. See note 3 of this

opinion.

While the dissent agrees with us that “neither Miller nor Montgomery requires a trial court to make a specific factual

finding that the juvenile is ‘irreparably corrupt,’ ” it concludes that those cases require “some additional finding(s),” yet it

does not identify what specifically that additional finding is other than that the juvenile’s offense must be “unusual

enough to warrant [a life-without-parole] sentence....”

Similarly, in Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Court held that the

Eighth Amendment bars the imposition of the death penalty on defendants who are intellectually disabled, but it left “to

the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of

sentences.” (Quotation marks and citation omitted; alterations in original.) Subsequently, in Schriro v. Smith, 546 U.S.

6, 7, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005), the Court held that “[t]he Ninth Circuit erred in commanding the Arizona courts

to conduct a jury trial to resolve Smith’s mental retardation claim.” Although the Court did not expressly hold that a jury

trial is not required, it noted that “Arizona had not even had a chance to apply its chosen procedures when the Ninth

Circuit pre-emptively imposed its jury trial condition.” Id. at 7-8. State and lower federal courts have held that a jury

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need not decide whether a defendant is intellectually disabled. See, for example, State v. Agee, 358 Or. 325, 364, 364

P.3d 971 (2015), amended 358 Or 749, 370 P.3d 476 (2016) (“[B]ecause intellectual disability is a fact that operates to

reduce rather than to increase the maximum punishment permitted by a verdict of guilt, the Sixth Amendment does not

require the fact of intellectual disability to be decided by a jury beyond a reasonable doubt.”); Commonwealth v.

Bracey, 604 Pa. 459, 474, 986 A.2d 128 (2009) (“[T]here is no Sixth Amendment right to a jury on the question of

mental retardation.”); State v. Hill, 177 Ohio App. 3d 171, 187, 2008-Ohio-3509, 894 N.E.2d 108 (2008) (“[W]e reject

the argument that the Apprendi/Ring line of cases requires the issue of an offender’s mental retardation to be decided

by a jury under a reasonable-doubt standard.”); State v. Johnson, 244 S.W.3d 144, 151 (Mo, 2008) (“The Supreme

Court’s holding in Ring requiring a jury to find statutory aggravating circumstances beyond a reasonable doubt does

not apply to the issue of mental retardation” because “[d]etermining a defendant is mentally retarded is not a finding of

fact that increases the potential range of punishment; it is a finding that removes the defendant from consideration of

the death penalty.”); State v. Grell, 212 Ariz. 516, 526, 135 P.3d 696 (2006) (“Ring does not require that a jury find the

absence of mental retardation.”); Walker v. True, 399 F.3d 315, 326 (C.A. 4, 2005) (A jury does not have to determine

whether a defendant is mentally retarded because “an increase in a defendant’s sentence is not predicated on the

outcome of the mental retardation determination; only a decrease.”) (quotation marks omitted); Head v. Hill, 277 Ga.

255, 258, 587 S.E.2d 613 (2003) (“[T]he absence of mental retardation is not the functional equivalent of an element of

an offense such that determining its absence or presence requires a jury trial under Ring.”); In re Johnson, 334 F.3d

403, 405 (C.A. 5, 2003) (“[N]either Ring and Apprendi nor Atkins render the absence of mental retardation the

functional equivalent of an element of capital murder which the state must prove beyond a reasonable doubt.”).

Also somewhat similarly, in Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), the Court held

that the Eighth Amendment bars the imposition of the death penalty in felony-murder cases unless the defendant

himself killed, intended to kill, attempted to kill, or was a major participant in the offense and acted with at least a

reckless indifference to human life. In Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), the

Court discussed a case that served as a precursor to Tison, Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73

L.Ed.2d 1140 (1982), and held that the offender’s role in the offense did not concern guilt or innocence and did not

establish an element of capital murder that had to be found by a jury. While Cabana was decided before Apprendi,

state and lower federal courts since Apprendi have held that the Sixth Amendment does not require that a jury make

the Enmund/Tison findings. See, for example, State v. Galindo, 278 Neb 599, 656, 774 N.W.2d 190 (2009) (“Ring

[does] not require a jury determination of Enmund-Tison findings” because “the Enmund/Tison determination is a

limiting factor, not an enhancing factor.”) (quotation marks and citations omitted); State v. Nichols, 219 Ariz. 170, 172,

195 P.3d 207 (2008) (“[T]he Sixth Amendment does not require that a jury, rather than a judge, make Enmund-Tison

findings.”) (quotation marks and citation omitted). See also 6 LaFave et al., Criminal Procedure (4th ed.), § 26.4(i), pp.

1018-1019 (“So far, lower courts have rejected arguments to equate the factors which as a matter of Eighth

Amendment law are required for death eligibility with elements. The rules in Tison and Atkins have instead been

treated as defenses to, not elements of, capital murder.”).

Finally, as the Court of Appeals explained in Hyatt, 316 Mich. App. at 411-412, 891 N.W.2d 549:

The consensus in these cases is that when the Eighth Amendment’s proportionality requirement has barred

imposition of the death penalty because of a certain factor or factors that suggested diminished culpability, the

determination of whether those certain factors exist is not one that is subject to a jury determination. Stated

differently, the Eighth Amendment prohibitions are considered to be mitigating factors that act as a bar against

imposing the statutory maximum penalty, rather than as elements that enhance the maximum possible penalty, and

the determination of whether those mitigating factors exist need not, under Apprendi and its progeny, be made by a

jury.

MCL 769.25 requires trial courts to consider the Miller factors before imposing life without parole in order to ensure that

only those juveniles who are irreparably corrupt are sentenced to life without parole. Whether a juvenile is irreparably

corrupt is not a factual finding; instead, it is a moral judgment that is made after considering and weighing the Miller

factors. See note 11 of this opinion.

The Court of Appeals in Skinner, 312 Mich. App. at 49, 877 N.W.2d 482, stated:

[I]f, as the prosecution and the Attorney General contend, the “maximum allowable punishment” at the point of

defendant’s conviction is life without parole, 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.

Similarly, the dissent contends that “[r]eading the statute as [we do] renders meaningless the individualized sentencing

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required by Miller by allowing [life without parole] effectively to serve as the default sentence as long as the prosecutor

files the motion required under MCL 769.25(2).” However, what the Court of Appeals and the dissent fail to recognize

is that Michigan’s statutory scheme does not create a mandatory default sentence of life without parole for juveniles.

Rather, it authorizes the trial court to sentence a juvenile to life without parole as long as the trial court takes into

account the Miller factors. In other words, Michigan’s statutory scheme is absolutely consistent with Miller because

instead of imposing a mandatory sentence of life without parole, it requires the trial court to impose an individualized

sentence by requiring the trial court to consider the factors enumerated in Miller. Therefore, contrary to the dissent’s

suggestion, our interpretation of MCL 769.25 most certainly does not “flout[ ] the individualized sentencing ...

requirement[ ] of Miller....”

The Supreme Court of Pennsylvania held that although a finding of “permanent incorrigibility” is required, this finding

can be made by the trial court because “[a] finding of ‘permanent incorrigibility’ cannot be said to be an element of the

crime committed; it is instead an immutable characteristic of the juvenile offender.” Id. at 456.

As Blackwell put it, “ ‘[I]rreparable corruption’ is not a factual finding, but merely ‘encapsulates the [absence] of

youth-based mitigation.’ ” Id. at 192 (alteration in original).

Judge METER, joined by Judges M. J. KELLY and RIORDAN, would not have reversed defendant’s sentence and

remanded to the trial court for further consideration. Instead, they would have affirmed defendant’s sentence of life

without parole.

Justice Roberts, joined by Justices Scalia, Thomas, and Alito, referred to this as “the Court’s gratuitous prediction.”

Miller, 567 U.S. at 501, 132 S.Ct. 2455 (Roberts, C.J., dissenting). See also State v. Valencia, 241 Ariz. 206, 212, 386

P.3d 392 (2016) (Bolick, J., concurring) (“We should treat the Court’s forecast that irreparable corruption will not be

found in the ‘vast majority’ of cases as speculative and dictum.... Our system’s integrity and constitutionality depend

not on whether the overall number of sentences of life without parole meted out to youthful murderers are many or few.

They depend primarily on whether justice is rendered in individual cases.”). Furthermore, it is difficult to understand

what particular insights or data the United States Supreme Court, or any other court, would possess concerning the

Miller/Montgomery juvenile populations of this state, much less those of all fifty states, that would sustain such a

prediction.

Miller ’s and Montgomery ’s references to “rare” are somewhat analogous to this Court’s reference to “exceptional” in

People v. Babcock, 469 Mich. 247, 257, 666 N.W.2d 231 (2003). In Babcock, we stated, “ ‘the Legislature intended

“substantial and compelling reasons” to exist only in exceptional cases.’ ” Id., quoting People v. Fields, 448 Mich. 58,

68, 528 N.W.2d 176 (1995). Post-Babcock, we certainly did not require trial courts to explicitly find that a defendant’s

case was “exceptional” before imposing a sentence outside the statutory sentencing guidelines.

Although trial courts are no longer required to articulate substantial and compelling reasons to justify departures, they

are still required to articulate “adequate reasons” to justify departures, and such departures are still reviewed for an

abuse of discretion. Steanhouse, 500 Mich. at 476, 902 N.W.2d 327.

As discussed earlier and as also recognized by the dissent, the United States Supreme Court expressly left it to the

states to adopt procedures to satisfy the requirements of the Eighth Amendment. Where the issue is whether those

procedures sufficiently satisfy the requirements of the Eighth Amendment, the de novo standard of review is applicable

because that is a question of law. However, contrary to the dissent’s position, where the issue pertains to the trial

court’s ultimate decision between a life-without-parole sentence and a term-of-years sentence, the traditional

abuse-of-discretion standard of review is applicable. We are not aware of any other situation in this state in which a

trial court’s sentencing decision is reviewed de novo, and we see no reason why it should be in this particular situation.

As discussed earlier, Miller requires individualized sentences and the trial court is in a better position than an appellate

court to carry out this task. And Miller requires the trial court to consider such factors as the defendant’s maturity,

impetuosity, ability to appreciate risks and consequences, ability to deal with police officers or prosecutors, capacity to

assist his own attorneys, and possibility of rehabilitation. The trial court is obviously in a far better position than the

appellate court to assess such factors, and thus the latter must review the trial court’s consideration of these factors

and its ultimate decision whether to impose a life-without-parole or a term-of-years sentence under a deferential

abuse-of-discretion standard of review.

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Although the Court of Appeals in Hyatt erred by adopting a heightened standard of review with regard to the trial

court’s ultimate decision to impose a sentence of life without parole, it did correctly hold that “[a]ny fact-finding by the

trial court is to be reviewed for clear error” and that “any questions of law are to be reviewed de novo....” Hyatt, 316

Mich. App. at 423, 891 N.W.2d 549.

Defendant Hyatt’s application for leave to appeal is otherwise denied.

I use the term “murder-plus” to mean interpreting the statute to require the trial court to find facts beyond those inherent

in the jury verdict before it can impose a sentence of life without parole on a juvenile.

I use the term “murder-minus” to mean interpreting the statute to allow the trial court to impose a sentence of life

without parole on a juvenile based solely on the jury’s verdict, without finding any additional facts, and to ratchet

downward to impose a term-of-years sentence.

The Hyatt panel’s focus on the motion permitting a prosecutor to seek an LWOP sentence as increasing the maximum

is flawed, Hyatt, 316 Mich. App. at 405, 891 N.W.2d 549, because it is the trial court’s authority to impose such a

sentence that matters. And even if the prosecutor’s filing of a motion under MCL 769.25(2) were considered, it would

further support the conclusion that the statute violates the Sixth Amendment. The jury verdict alone does not authorize

a sentence of LWOP. As conceded by the prosecutor, LWOP is only available if the prosecutor files a motion seeking

an enhanced sentence.

Given this statement, I find questionable the majority’s assertion that “[w]hether a juvenile is irreparably corrupt is not a

factual finding[.]” Ante at 310 n. 18. But I acknowledge that other courts have reached the same conclusion. See, e.g.,

People v. Blackwell, 3 Cal. App. 5th 166, 192, 194, 207 Cal.Rptr.3d 444 (2016) (concluding that “irreparable corruption”

is not a factual finding, but a “moral judgment”).

The United States Supreme Court in Montgomery recognized that there might be more than one procedural way to

satisfy its dictates and left it to the states to implement. Montgomery, 577 U.S. at ––––, 136 S.Ct. at 735 (“That this

finding [of incorrigibility] is not required, however, speaks only to the degree of procedure Miller mandated in order to

implement its substantive guarantee.... [T]his Court is careful to limit the scope of any attendant procedural

requirement to avoid intruding more than necessary upon the States’ sovereign administration of their criminal justice

systems.”). I read the substantive rule of Miller and Montgomery as: whatever label a state puts on the “finding” a court

must make as a procedural matter before it can constitutionally sentence a juvenile to LWOP (whether it be

“irreparable corruption” or some proxy of that status), the court must make the finding at least cautiously and at most

rarely. Id. at ––––, 136 S.Ct. at 735 (describing “Miller ’s substantive holding that life without parole is an excessive

sentence for children whose crimes reflect transient immaturity”); id. at ––––, 136 S.Ct. at 734 (“Miller drew a line

between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable

corruption.”). And of course, states can avoid concerns about what procedural protections are enough to satisfy Miller

“by permitting juvenile homicide offenders to be considered for parole.” Id. at ––––, 136 S.Ct. at 736.

Thus, I cannot accept the majority’s and the Hyatt panel’s conclusion that there is no Sixth Amendment flaw in MCL

769.25 because the Miller factors all involve mitigating factors, which a jury need not find. What Miller and Montgomery

require trial courts to do before imposing an LWOP sentence on a juvenile is explain why the juvenile’s offense is the

unusual one that warrants it; in other words, why is it worse than the typical juvenile offense? See Black’s Law

Dictionary (7th ed.), p. 236, which defines “aggravating circumstance” as “[a] fact or situation that increases the degree

of liability or culpability for a tortious or criminal act”; see also Montgomery, 577 U.S. at ––––, 136 S.Ct. at 726 (stating

that LWOP is inappropriate “for all but the rarest of children, those whose crimes reflect ‘irreparable corruption’ ”)

(citations omitted; emphasis added). So while Miller may require trial courts to consider the mitigating effects of youth

in determining an appropriate sentence generally, perhaps the Eighth Amendment requirement includes a finding of

aggravation of some kind, whether it is irreparable corruption or something else.

It would seem hard to dispute that the Legislature created the motion, hearing, and on-the-record findings requirements

in MCL 769.25(3), (6), and (7) precisely to satisfy Miller ’s dictates for individualized consideration of juveniles

29a

People v. Skinner, 502 Mich. 89 (2018)

917 N.W.2d 292

convicted of enumerated crimes. The irony that in doing so, it created a Sixth Amendment problem is not lost on me.

But this result is still the one that I read the applicable United States Supreme Court precedent to require given this

particular statute.

Montgomery ’s sharpening of Miller ’s requirements also undermines the majority’s conclusion that a murder-minus

reading of the statute is constitutionally sufficient because it requires sentencing courts to “consider” the Miller factors.

Montgomery, 577 U.S. at ––––, 136 S.Ct. at 734 (stating that “because Miller determined that sentencing a child to life

without parole is excessive for all but the rare juvenile offender whose crime reflects irreparable corruption, it rendered

life without parole an unconstitutional penalty for a class of defendants because of their status—that is, juvenile

offenders whose crimes reflect the transient immaturity of youth”) (cleaned up). In other words, the Eighth Amendment

requires the sentencing court to find some facts about a particular juvenile’s crime that distinguish it from the typical

juvenile offense before it may impose an LWOP sentence.

Other state supreme courts have similarly concluded that Miller requires a presumption against imposing LWOP on a

juvenile offender. See, e.g., Davis v. State, 2018 WY 40, ¶ 45, 415 P.3d 666, 681 (2018), citing State v. Riley, 315

Conn. 637, 655, 110 A.3d 1205 (2015); State v. Seats, 865 N.W.2d 545, 555 (Iowa, 2015).

The majority replies by conceding that de novo review applies to questions of law, but denies that a trial court’s

sentencing decision to impose an LWOP sentence on a juvenile is such a question. That conclusion, frankly, simply

ignores that Miller constitutionalized this particular area of law and that Montgomery declared it a substantive, rather

than a procedural, rule of law. See Montgomery, 577 U.S. at ––––, 136 S.Ct. at 736 (stating that “[t]he Court now holds

that Miller announced a substantive rule of constitutional law”); see also id. at ––––, 136 S.Ct. at 735 (stating that “[t]he

hearing does not replace but rather gives effect to Miller ’s substantive holding that life without parole is an excessive

sentence for children whose crimes reflect transient immaturity”). Even the Montgomery primary dissent, albeit

begrudgingly, acknowledged this. See id., 577 U.S. at ––––, 136 S.Ct. at 743-744 (Scalia, J., dissenting) (asserting

that “the rewriting [of Miller ] has consequences beyond merely making Miller ’s procedural guarantee retroactive. If,

indeed, a State is categorically prohibited from imposing life without parole on juvenile offenders whose crimes do not

‘reflect permanent incorrigibility,’’ then even when the procedures that Miller demands are provided the constitutional

requirement is not necessarily satisfied. It remains available for the defendant sentenced to life without parole to argue

that his crimes did not in fact ‘reflect permanent incorrigibility’ ”) (emphasis added).

End of Document

30a

APPENDIX B

482

Mich.

877 NORTH WESTERN REPORTER, 2d SERIES

499 Mich. 903

Karen GORSKI, Plaintiff–Appellee,

filing fee as required by the order of

March 28, 2016, the Clerk of the Court is

hereby directed to close this file.

AT & T MICHIGAN, Defendant/Third–

Party Plaintiff–Appellant,

and

Johnson Controls, Inc.,

Defendant/Third–Party

Defendant.

Docket No. 153441.

COA No. 329039.

312 Mich.App. 15

PEOPLE

Supreme Court of Michigan.

April 15, 2016.

SKINNER.

Order

On order of the Court, the motion for

immediate consideration is GRANTED.

The application for leave to appeal the

March 15, 2016 order of the Court of Appeals is considered, and it is DENIED,

because we are not persuaded that the

questions presented should now be reviewed by this Court. The motion for a

stay of proceedings is DENIED.

Demareo Jamine ALLEN,

Plaintiff–Appellant,

KINROSS CORRECTIONAL

FACILITY WARDEN,

Defendant–Appellee.

Docket No. 153300.

COA No. 330153.

Supreme Court of Michigan.

April 19, 2016.

Order

On order of the Chief Justice, plaintiffappellant having failed to pay the partial

Docket No. 317892.

Court of Appeals of Michigan.

Submitted May 8, 2015, at Detroit.

Decided Aug. 20, 2015, at 9:05 a.m.

Background: On second remand from

Court of Appeals for resentencing following affirmance of convictions for first-degree murder and other crimes committed

when defendant was juvenile, 2013 WL

951265, the Circuit Court, St. Clair County, Daniel J. Kelly, J., sentenced defendant

to life without parole. Defendant appealed.

Holdings: The Court of Appeals, Borrello,

J., held that:

(1) as an issue of first impression, statute

authorizing trial court to enhance default sentence of term-of-years for

murder committed as juvenile to life

without parole based on findings made

by trial court and not jury violated

Sixth Amendment right to jury trial,

but

(2) although portions of statute were unconstitutional, statute was not void entirely, but instead remained operable

such that jury could make findings

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PEOPLE v. SKINNER

Cite as 877 N.W.2d 482 (Mich.App. 2015)

supporting sentence of life without parole for murder committed as juvenile.

Vacated and remanded.

Sawyer, J., filed dissenting opinion.

1. Criminal Law O1139

Court of Appeals reviews constitutional issues de novo.

2. Criminal Law O1139

Issues of statutory construction are

reviewed de novo.

3. Constitutional Law O4694, 4752

Jury O34(2)

Taken together, the rights afforded

under the Sixth Amendment and Due Process clause 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. U.S.C.A. Const.Amends. 6, 14.

4. Jury O34(6)

Sentencing and Punishment O322.5

Under the Sixth Amendment right to

a jury trial, 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 court may impose solely on the basis of facts reflected

in the jury verdict or admitted by the

defendant must be submitted to a jury and

proved beyond a reasonable doubt.

U.S.C.A. Const.Amend. 6.

5. Jury O31.1

Sentencing and Punishment O8

Statute authorizing trial court, on

prosecution’s motion, to enhance default

sentence of term-of-years for defendant

convicted of first-degree murder committed as juvenile to life without parole on

basis of factual findings not made by jury,

but rather found by trial court, violated

Sixth Amendment right to jury trial,

Mich.

483

though trial court had discretion to impose

harsher sentence; at point of conviction,

maximum punishment was term-of-years

prison sentence, once prosecution filed motion, defendant was exposed to potentially

harsher penalty contingent on findings

made by trial court, any fact that exposed

defendant to greater potential sentence

had to be found by jury, and trial court’s

discretion was not substitute for right to a

jury. U.S.C.A. Const.Amend. 6; M.C.L.A.

§§ 750.316, 769.25(6).

6. Jury O34(6)

In the context of increasing a maximum sentence using judicially found facts,

judicial discretion cannot substitute for a

defendant’s Sixth Amendment right to a

jury. U.S.C.A. Const.Amend. 6.

7. Infants O3011

To enhance a juvenile’s default sentence to life without parole, absent a waiver, a jury must make findings on the relevant statutory factors to determine beyond

a reasonable doubt whether the juvenile’s

crime reflects irreparable corruption.

M.C.L.A. § 769.25(6).

8. Infants O3011

Jury O31.1

Sentencing and Punishment O322.5

Although portions of statute authorizing trial court, on prosecution’s motion, to

enhance default sentence of term-of-years

for defendant convicted of first-degree

murder committed as juvenile to life without parole on basis of factual findings by

trial court, rather than jury, violated Sixth

Amendment right to a jury trial, statute

was not void entirely but instead remained

operable such that, following conviction

and motion by prosecuting attorney for

sentence of life without parole, absent defendant’s waiver, trial court could empanel

a jury and hold sentencing hearing at

which prosecution would be tasked with

proving that relevant factors supported

32a

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Mich.

877 NORTH WESTERN REPORTER, 2d SERIES

that offenses reflected irreparable corruption beyond a reasonable doubt sufficient

to impose sentence of life without parole.

U.S.C.A. Const.Amend. 6; M.C.L.A.

§§ 750.316, 769.25(6).

9. Municipal Corporations O111(4)

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. M.C.L.A. § 8.5.

10. Jury O34(6)

Sixth Amendment does not require

the jury to articulate mitigating and aggravating circumstances when sentencing a

defendant. U.S.C.A. Const.Amend. 6.

West Codenotes

Held Unconstitutional

M.C.L.A. § 769.25(6, 7)

Recognized as Unconstitutional

M.C.L.A. § 769.34(2,

RCWA 9.94A.120(2)

3);

West’s

BORRELLO, J.

This case presents a constitutional issue

of first impression concerning whether the

Sixth Amendment mandates that a jury

make findings on the factors set forth in

Miller v. Alabama, 567 U.S. ––––, 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

hold 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 sentences determined

by a jury. In so holding, 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 any facts mandated by MCL

769.25(6) with respect to her sentence.

Accordingly, we vacate her sentence for

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

opinion.

Bill Schuette, Attorney General, Aaron

D. Lindstrom, Solicitor General, Michael

D. Wendling, Prosecuting Attorney, and

Hilary B. Georgia, Senior Assistant Prosecuting Attorney, for the people.

University of Michigan Juvenile Justice

Clinic (by Kimberly Thomas and Frank E.

Vandervort) for defendant.

Bill Schuette, Attorney General, Aaron

D. Lindstrom, Solicitor General, and iLinus Banghart–Linn, Assistant Attorney

General, for the Attorney General.

Before: HOEKSTRA, P.J., and

SAWYER and BORRELLO, JJ.

BACKGROUND

In November 2010, at the age of 17,

defendant arranged to have her parents,

Paul and Mara Skinner, murdered. Specifically,

[t]he 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

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Cite as 877 N.W.2d 482 (Mich.App. 2015)

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 admitted that she had talked to

Kurtz about killing her parents. Defendant said that Kurtz was going to seek

Preston’s help.[ 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, 567 U.S. at

––––, 132 S.Ct. at 2460, wherein the Court

held that mandatory sentences of life without parole 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.2

On July 11, 2013, the trial court held a

resentencing hearing and again sentenced

defendant to life without parole for the

People v. Skinner, unpublished opinion per

curiam of the Court of Appeals, issued February 21, 2013 (Docket No. 306903), p. 1, 2013

WL 951265.

Id.

Mich.

485

first-degree-murder conviction.

Defendant again appealed her sentence. On

March 4, 2014, while defendant’s appeal

was pending, MCL 769.25 took effect,

which had been enacted in response to

Miller and established a framework for

imposing a sentence of life without parole

on a juvenile convicted of, inter alia, firstdegree 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 N.W.2d

801 (2014), which concerned the retroactivity of Miller. Following the decision in

Carp, this Court remanded defendant’s

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.3

On second remand, defendant moved to

empanel a jury, arguing at the resentencing hearing that a jury should make the

factual findings mandated by MCL

769.25(6). The trial court denied defendant’s motion, and this Court denied defendant’s emergency application for leave

to appeal that order.4 Thereafter, the trial

court held the second resentencing hearing

on September 18, 19, and 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 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.

People v. Skinner, unpublished order of the

Court of Appeals, entered July 30, 2014

(Docket No. 317892).

People v. Skinner, unpublished order of the

Court of Appeals, entered September 17, 2014

(Docket No. 323509).

34a

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Mich.

II.

877 NORTH WESTERN REPORTER, 2d SERIES

STANDARD OF REVIEW

[1, 2] We review constitutional issues

de novo. People v. Nutt, 469 Mich. 565,

573, 677 N.W.2d 1 (2004). Issues of statutory construction are also reviewed de

novo. People v. Williams, 483 Mich. 226,

231, 769 N.W.2d 605 (2009).

III.

GOVERNING LAW

This case brings us to the intersection of

the Sixth and Eighth Amendments of 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 United States Supreme Court Sixth

Amendment jurisprudence before applying

that precedent to Michigan’s post-Miller

juvenile-sentencing scheme.

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 can in part be traced back

to Thompson v. Oklahoma, 487 U.S. 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 U.S. 551, 561, 125

S.Ct. 1183, 161 L.Ed.2d 1 (2005), citing

Thompson, 487 U.S. at 818–838, 108 S.Ct.

2687 (opinion by Stevens, J.). Subsequently, in Roper, 543 U.S. at 568–579, 125

S.Ct. 1183, the Court expanded on the

rationale in the Thompson plurality and

held that the Eighth Amendment categorically barred imposition of the death penal-

ty on all juveniles under the age of 18

when their crimes were committed, irrespective of the offense. 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, 125 S.Ct. 1183 (quotation

marks and citation 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, 125 S.Ct. 1183. In particular, the

Court noted, juveniles exhibit ‘‘ ‘[a] lack of

maturity and underdeveloped sense of responsibility’ ’’ that ‘‘ ‘often result in impetuous and ill-considered actions and decisions.’ ’’ Id. (citation omitted) (alteration in

original).

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, 125 S.Ct. 1183.

Thus, ‘‘neither retribution nor deterrence

provides adequate justification for imposing the death penalty on juvenile offendersTTTT’’ Id. at 572, 125 S.Ct. 1183.

Following Roper, under the Eighth

Amendment the maximum penalty that

could be imposed on a juvenile offender

was life imprisonment without the possibility of parole. The Court further limited that form of punishment in Graham v.

Florida, 560 U.S. 48, 130 S.Ct. 2011, 176

L.Ed.2d 825 (2010), and Miller. Specifically, in Graham, the Court held that the

Eighth Amendment categorically barred a

sentence of life without parole for juvenile

‘‘nonhomicide offenders.’’ Graham, 560

U.S. at 74, 130 S.Ct. 2011. The Graham

Court reasoned that juveniles ‘‘who do not

kill, intend to kill, or foresee that life will

be taken are categorically less deserving

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PEOPLE v. SKINNER

Cite as 877 N.W.2d 482 (Mich.App. 2015)

of the most serious forms of punishmentTTTT’’ Id. at 69, 130 S.Ct. 2011. The

Court explained that, unlike ‘‘nonhomicide’’ offenses, homicide is unique with respect to its ‘‘moral depravity’’ and the injury it inflicts on its victim and the public

and concluded: ‘‘It 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.

(quotation marks and citations omitted).

The Court proceeded to establish a

bright-line categorical bar on sentences of

life without parole for juvenile nonhomicide offenders. Id. at 74, 130 S.Ct. 2011.

Although a state was not ‘‘required to

guarantee eventual freedom,’’ juveniles

convicted of nonhomicide offenses were to

be afforded ‘‘some meaningful opportunity

to obtain release based on demonstrated

maturity and rehabilitation.’’ Id. at 75,

130 S.Ct. 2011.

Building on Roper and Graham, the Supreme Court held in Miller that, irrespective of the offense, mandatory life sentences without the possibility of parole for

juvenile offenders violated the Eighth

Amendment. Miller, 567 U.S. at ––––, 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 ––––,

132 S.Ct. 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 characteris-

Mich.

487

tics 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 ––––, 132

S.Ct. at 2465–2466 (citation 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

––––, 132 S.Ct. at 2466–2467. The Miller

Court referred to Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49

L.Ed.2d 944 (1976), wherein the Supreme

Court struck down a mandatory deathpenalty 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 TTT the

possibility of compassionate or mitigating

factors.’ ’’ Miller, 567 U.S. at ––––, 132

S.Ct. at 2467 (alteration in original). Additionally, the Supreme Court noted that

[s]ubsequent 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. at ––––, 132

S.Ct. at 2467 (citations omitted).]

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

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Mich.

877 NORTH WESTERN REPORTER, 2d SERIES

culpability including, among other things,

age, background, and mental and emotional development. Id. at ––––, 132 S.Ct. at

2467 (quotation marks and citation 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 ––––, 132 S.Ct. 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[s]

into account how children are different,

and how those differences counsel against

irrevocably sentencing them to a lifetime

in prison.’’ Id. at ––––, 132 S.Ct. at 2469.

The Supreme Court cautioned that

appropriate occasions for sentencing juveniles to 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

––––, 132 S.Ct. at 2469, quoting Roper,

543 U.S. at 573, 125 S.Ct. 1183 (emphasis added).]

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

are unconstitutional in all cases; however,

in homicide cases, an individualized lifewithout-parole sentence may be imposed

when 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, 567 U.S. at ––––, 132 S.Ct.

at 2469. Those factors were set forth as

follows:

TTT 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 attorneysTTTT

And finally, this mandatory punishment

disregards the possibility of rehabilitation even when the circumstances most

suggest it. [Miller, 567 U.S. at ––––,

132 S.Ct. at 2468.]

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 that 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 guidepost for determining

whether a juvenile’s homicide offense reflects irreparable corruption.

MICHIGAN’S SENTENCING

SCHEME POST–MILLER

Miller had a wide-ranging effect nationwide in that, with respect to juvenile of-

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489

fenders, it invalidated state statutes that

imposed mandatory life-without-parolesentences.5 In Michigan, the Legislature

enacted 2014 PA 22, codified at MCL

769.25 and MCL 769.25a,6 in response to

Miller. Relevant to this case, MCL 769.25

provides in pertinent part:

for direct appellate review by state or

federal courts have not expired.

(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) if either of the following circumstances exists:

(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:

(a) The defendant is convicted of the

offense on or after [March 4, 2014].

(ii ) On June 25, 2012 the case was

pending in the trial court or the applicable time periods for direct appellate review by state or federal courts had not

expired.

TTT

(b) The defendant was convicted of

the offense before [March 4, 2014] and

either of the following applies:

(b) A violation

750.316]TTTT[ 7]

(i ) The case is still pending in the

trial court or the applicable time periods

(3) TTT If the prosecuting attorney intends to seek a sentence of imprison-

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

Amendment Rights, 56 BC 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 that ‘‘sixteen state legislatures have

enacted statutes in response to Graham and

Miller, and many others are considering

bills’’).

MCL 769.25a concerns the retroactivity of

MCL 769.25, and it is not at issue in this case.

In addition to first-degree murder, MCL

769.25(2)(a) through (d) provide that a prosecuting attorney may move for imposition of a

life-without-parole sentence for juveniles convicted of several other offenses. Subdivision

(a) includes MCL 333.17764(7) (mislabeling

drugs with intent to kill). Besides first-degree

murder, Subdivision (b) includes MCL

750.16(5) (adulteration of drugs with intent to

kill); MCL 750.18(7) (mixing drugs improperly with intent to kill); MCL 750.436(2)(e) (poisoning), and MCL 750.543f (terrorism). Subdivision (c) includes Chapter XXIII of the

Michigan Penal Code, MCL 750.200 to MCL

750.212a, concerning explosives. And finally,

Subdivision (d) includes any other violation

involving the death of another for which pa-

role eligibility is expressly denied by law.

The issue of whether these offenses constitute

‘‘homicide offenses’’ under Graham and Miller for purposes of sentencing juvenile offenders to life without parole is not before this

Court. See, e.g., Graham, 560 U.S. at 68–69,

130 S.Ct. 2011 (noting in categorically barring life-without-parole sentences for juveniles convicted of nonhomicide offenses that

‘‘because juveniles have lessened culpability

they are less deserving of the most severe

punishments’’ and that ‘‘defendants 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 than are

murderers’’) (emphasis added). See also Miller, 567 U.S. at ––––, 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 constitutes

a homicide offense under Graham and Miller

for which defendant is eligible to receive life

without parole.

[MCL

38a

490

Mich.

877 NORTH WESTERN REPORTER, 2d SERIES

ment 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

[March 4, 2014]. 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[sic] U.S. ––––, 132 S.Ct. 2455, 183

L.Ed.2d 407 (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, 852

N.W.2d 801. Specifically, under this new

scheme,

[r]ather than imposing fixed sentences

of life without parole on all defendants

convicted of violating

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