                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 20, 2018
               Plaintiff-Appellee,

V                                                                    No. 335862
                                                                     Kent Circuit Court
DEMARIOL DONTAYE BOYKIN,                                             LC No. 03-004460-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and SHAPIRO and GADOLA, JJ.

SHAPIRO, J. (dissenting).

        I respectfully dissent. In People v Wines, ___ Mich App ___, ___; ___ NW2d ___
(2018) (Docket No. 336550); slip op at 4, we held that when sentencing a person who was less
than 18 years old at the time of the crime, the court should balance the factors set out in People v
Snow, 386 Mich App 586; 194 NW2d 314 (1972), and in that context, consider the attributes of
youth such as those articulated by the Supreme Court in Miller v Alabama, 567 US 460; 132 S Ct
2455; 183 L Ed 2d 407 (2012).1 In this case, the sentencing judge was either unwilling or unable
to do so.2 Accordingly, I would vacate defendant’s sentence and remand for sentencing before a
different judge.

       At the sentencing, the judge had no opportunity to consider Wines as it had not yet been
decided, but he repeatedly expressed strong disagreement with the decision in Miller, which he
understood to be controlling.3 A judge’s personal disagreement with a United States Supreme

1
  Snow held that in imposing sentence, the court should “balance” the following objectives: “(1)
reformation of the offender, (2) protection of society, (3) punishment of the offender, and (4)
deterrence of others from committing like offenses.” Id. at 592 (citation omitted). The process
of properly balancing these objectives in the case of a minor defendant necessitates consideration
of the distinctive attributes of youth.
2
  Although Wines had not yet been decided, the trial court discussed Miller and viewed it as
controlling.
3
 As we held in Wines, Miller’s constitutional holding is only applicable when a defendant can be
sentenced to life without parole. Wines, ___ Mich App at ___; slip op at 4.



                                                -1-
Court’s decision is neither unusual nor improper. But in this case, the judge did not merely note
his disagreement; rather, he seemed to advocate a campaign to get the Supreme Court to reverse
itself. In speaking with the victim’s family, he referenced “the pain you continue to suffer,
especially in light of the decision of the U.S. Supreme Court.” He went to on to encourage the
victim’s family to get a transcript of the resentencing and “send it to the majority of the United
States Supreme Court so they can understand the consequences of their far-reaching decision . . .
.” After another family member spoke, the judge reiterated his advice stating, “I can encourage
you to express this message to the United States Supreme Court and the justices who made this
resentencing possible.” Finally, he stated that “it strains and breaks my heart to do what I’m
mandated to do.”

       The judge’s unwillingness to consider the attributes of youth in sentencing defendant was
more explicitly demonstrated after the victim’s brother expressed his view that “[y]ou [are] a
grown man at 16. That’s how I was raised.” The trial court responded to this statement by
saying, “I can’t argue with you.” A family member of the victim has every right to express his
view to the trial court and he has no obligation to surrender his views on punishment in
deference to an appellate court. The trial court is so obligated, however. The judge’s explicit
agreement with the view that a 16 year old is a “grown man” leaves little doubt that he either did
not understand Miller or was unwilling to follow it.

        Further, on several occasions, the trial court noted that defendant was only 80 days short
of his 18th birthday when the crime occurred, and suggested that his proximity to that birthday
lessened the need to consider the attributes of youth. This is plainly wrong. Miller defines a
bright line at age 18, which we adopted in Wines. The judge repeated this view twice more
during sentencing, stating that the defendant was “far older” than the defendants in Miller.
Perhaps, most compelling was the trial court’s conclusion that “[t]he defendant was certainly of a
mature age and cannot blame youth or immaturity . . . for this conduct.” The trial court’s
conclusion that at age 17, the “defendant was certainly of a mature age” is completely contrary to
Miller in which the Supreme Court opined:

       [Minors] are constitutionally different from adults for purposes of sentencing.
       Because juveniles have diminished culpability and greater prospects for reform,
       we explained, they are less deserving of the most severe punishments. Those
       cases relied on three significant gaps between juveniles and adults. First, children
       have a lack of maturity and an undeveloped sense of responsibility, leading to
       recklessness, impulsivity, and heedless risk-taking. Second, children are more
       vulnerable . . . to negative influences and outside pressures, including from their
       family and peers; they have limited control over their environment and lack the
       ability to extricate themselves from horrific, crime-producing settings. And third,
       a child’s character is not as well formed as an adult’s; his traits are less fixed and
       his actions less likely to be evidence of irretrievabl[e] deprav[ity]. [Miller, 567
       US at 471 (quotation marks and citations omitted).

        My colleagues point out that the sentencing judge stated that he would apply Miller
despite his disagreements with it. His other statements, however, palpably demonstrate that he




                                                -2-
was either unable or unwilling to do so. Accordingly, I would vacate defendant’s sentence and
remand for resentencing before a different judge.

                                                         /s/ Douglas B. Shapiro




                                             -3-
