                          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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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.

PER CURIAM.

         Defendant appeals as of right his sentence of 40 to 60 years’ imprisonment imposed by
the trial court upon resentencing for his conviction of first-degree murder, MCL 750.316(1). We
affirm.

                                           I. FACTS

       In 2003, when defendant was 17 years old, he shot and killed Shawn Broyles, who was
18 years old. This Court, previously reviewing this case, summarized the facts as follows:

       The victim, Shawn Broyles, and defendant’s brother Marvin were engaged in a
       fist-fight. Broyles’ two friends were present, but did not think the fight was
       serious enough to merit their involvement. Defendant, his father, and defendant’s
       brother Charles were present. Neither defendant’s father nor Charles thought the
       fight was serious enough to merit their intervention either. At no time did Broyles
       attack or threaten to attack defendant. In fact, Broyles had already begun running
       from the scene of the altercation when defendant started shooting at him.

              Second, defendant had time in which to consider his actions. Broyles
       pleaded with defendant to “Come on, stop,” presumably after he saw the gun in
       defendant’s hand. Defendant, however, did not stop. Broyles turned and ran
       from defendant. Defendant raised his gun and fired three to four shots at Broyles.
       Broyles fell after being shot twice. One witness testified that defendant lifted
       Broyles up by his jacket hood, put the gun to his cheek, and pulled the trigger, but
       the gun did not fire. The gun, found by Broyles’ cousin, was determined to be
       jammed. After attempting to shoot Broyles again, defendant and his two brothers
       kicked Broyles as he lay dying on the sidewalk. Defendant’s brother Marvin

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       testified that defendant said he shot Broyles because Broyles had jumped him a
       few years before. [People v Boykin, unpublished opinion per curiam of the Court
       of Appeals, issued July 14, 2005 (Docket No 253244).]

        Defendant was convicted after a jury trial of first-degree murder, MCL 750.316(1),
possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b, and
as a fourth-offense habitual offender, MCL 769.12. Defendant was sentenced to life
imprisonment without possibility of parole for the murder conviction, and to two years for the
felony firearm conviction. This Court affirmed defendant’s convictions.1

        Thereafter, defendant pursued a number of post-conviction measures to overturn his
conviction and sentence. In 2016, a writ of habeas corpus was issued for resentencing pursuant
to the United States Supreme Court decisions in Miller v Alabama, 567 US 460; 132 S Ct 2455;
183 L Ed 2d 407 (2012), which held that mandatorily sentencing a juvenile to life without the
possibility of parole was unconstitutional, and Montgomery v Louisiana, 577 US __; 136 S Ct
718; 193 L Ed 2d 599 (2016), which applied Miller retroactively. People v Hyatt, 316 Mich App
368, 383; 891 NW2d 549 (2016). Because defendant’s conviction of first-degree murder
received a mandatory life sentence without possibility of parole, defendant was entitled to
resentencing under Miller and Montgomery, as well as Michigan’s legislative response to Miller,
MCL 769.25a.

        At resentencing in this case, the prosecutor did not seek a life sentence for defendant, but
instead suggested a sentence of 40 to 60 years for the first-degree murder conviction. Defense
counsel asked the trial court to consider a sentence of 25 to 60 years. The trial court sentenced
defendant to 40 to 60 years’ imprisonment, stating at the resentencing hearing, in part:

       Well, I sentenced as I have indicated, and one of the aspects of the requirement
       imposed on the Court is to determine a variety of factors articulated in this Miller
       v Alabama case. I’ll not articulate all of them. They’ll be incorporated by
       reference in the comments I’m making. Age and maturity, his impetuosity, his
       family history, home environment and the like, all of them, all of them have been
       considered by the Court.

                                        II. DISCUSSION

       On appeal, defendant first contends that the trial court did not properly apply the factors
discussed in Miller when resentencing defendant, and that defendant’s new sentence therefore
does not comply with the constitutional mandate that juveniles be treated differently than adults
when sentenced. We disagree.

      We review a sentence imposed by the trial court for an abuse of discretion. Hyatt, 316
Mich App at 423. “The limit on the judicial discretion to be exercised when imposing penalties


1
 People v Boykin, unpublished opinion per curiam of the Court of Appeals, issued July 14, 2005
(Docket No 253244).


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is that the punishment should be proportionate to the offender and the offense. . . . Hence,
appellate review of the sentence imposed is for abuse of discretion, to determine whether the
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.’ ” Id., citing People v Milbourn, 435 Mich 630, 636, 651-652; 461 NW2d 1 (1990).

        In Miller, the United States Supreme Court held that mandatory, life-without-parole
sentences for juvenile offenders were unconstitutional because the youthfulness of the offender
was not considered, resulting in the risk of disproportionate punishment. Miller, 567 US at 465,
479. In Miller, “[t]he Court emphasized that the unique characteristics of youth warranted
treating juveniles differently from adults for purposes of sentencing.” Hyatt, 316 Mich App at
379. The Miller Court outlined three gaps that exist between juveniles and adults:

       First, children have a lack of maturity and an underdeveloped 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 contro[l] over
       their own 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).]

        In response to Miller, Michigan enacted 2014 PA 22, which, in relevant part, added MCL
769.25. Hyatt, 316 Mich App at 384. Under this statute, if upon resentencing the prosecutor
declines to move for the reinstatement of a defendant’s sentence of life without parole, and if the
trial court decides not to sentence the defendant to life without parole, then the defendant must
be sentenced to “a term of imprisonment for which the maximum term shall be not less than 60
years and the minimum term shall not be less than 25 years or more than 40 years.” See MCL
769.25(4) and (9).

       In this case, the prosecutor did not move for the reinstatement of defendant’s prior life-
without-parole sentence. At the resentencing hearing, the trial court stated that it was aware of
Miller and that it was considering all of the Miller factors, including, but not limited to, age,
maturity, impetuosity, family history, and home environment. The trial court thereafter
sentenced defendant to a term of years, choosing not to impose a sentence of life without parole.
See MCL 769.25(4) and (9).

        Defendant argues that the trial court failed to properly consider the directive of Miller that
juveniles should be considered differently during sentencing. The decision in Miller, however,
applies only to juveniles sentenced to life without parole. Miller, 567 US at 465. Here, the trial
court did not sentence defendant to life without parole, but instead sentenced defendant to a term




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of years in compliance with MCL 769.25. The trial court, therefore, was not compelled to
consider the Miller factors.2

         Moreover, because defendant’s sentence of 40 to 60 years’ imprisonment was within the
statutorily mandated range requiring 25 to 40 years for the minimum term and 60 years for the
maximum term, the sentence is presumptively proportionate. See People v Williams, 189 Mich
App 400, 404; 473 NW2d 727 (1991) (holding that a legislatively mandated sentence is
presumptively proportionate and valid). Considering the totality of the circumstances,
defendant’s sentence was proportionate to the seriousness of the offense—first-degree murder—
and the offender, who was almost 18 years old at the time of the crime and who acted with
extreme brutality by executing another teenager with virtually no provocation. We conclude that
the trial court did not abuse its discretion in imposing a sentence of 40 to 60 years’ imprisonment
for defendant’s conviction of first-degree murder.

        Defendant next briefly contends that MCL 769.25(9) is unconstitutional because it
imposes a mandatory minimum sentence upon a juvenile convicted of murder without requiring
a trial court to consider the factors of Miller, which defendant argues therefore violates the
Eighth Amendment. Again, we disagree.

       The federal constitution prohibits “cruel and unusual” punishment, US Const, Am VIII,
(while the Michigan constitution prohibits “cruel or unusual” punishment, Const 1963, art 1, §
16). See People v Nunez, 242 Mich App 610, 618 n 2; 619 NW2d 550 (2000). In Miller, the
United States Supreme Court considered an Eighth Amendment challenge to mandatory life-
without-parole sentences for juvenile offenders in homicide cases, and concluded that “given all
we have said in Roper [v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005)], Graham
[v Florida, 560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010)], and this decision 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.” Miller,
567 US at 479. The Miller Court, focused upon this “harshest possible penalty,” held that a
sentencing scheme that mandates life-without-parole sentences for juvenile offenders violates the
Eighth Amendment’s prohibition against cruel and unusual punishment because it carries too
great a risk of disproportionate sentencing. See People v Garay, 320 Mich App 29, 44; 903
NW2d 883 (2017).




2
  Though not mandated by Miller, the trial court actually did consider the Miller factors when
resentencing defendant. The trial court stated that it was considering all the Miller factors and
specifically mentioned its consideration of defendant’s psychological evaluations, defendant’s
childhood, and his misconducts while in prison involving intoxicating substances and weapons.
Evaluating these factors, the trial court determined that defendant’s youth and immaturity were
not an excuse for his conduct, and that “[t]here was nothing to suggest here anything other than
this was a cold, calculated, premeditated killing of an innocent human being who represented no
threat to [defendant].”



                                                -4-
        In response to Miller, our Legislature enacted MCL 769.25, pursuant to which defendant
in this case was resentenced to a term of years, not to life without possibility of parole.
Defendant points to no authority to support his contention that Miller requires consideration of
its factors in cases where a juvenile is being sentenced to some term other than life without
parole,3 nor does defendant provide support for his theory that any statute that permits sentencing
a juvenile without consideration of the Miller factors violates the Eighth Amendment. “An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment with little or no
citation of supporting authority.” People v Bosca, 310 Mich App 1, 16; 871 NW2d 307 (2015)
(citation omitted).

       Affirmed.

                                                             /s/ Jane E. Markey
                                                             /s/ Michael F. Gadola




3
 Moreover, we again note that the trial court in this case did, in fact, consider the Miller factors
when sentencing defendant, apparently believing that it was obligated to do so.




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