                              STATE OF MICHIGAN

                               COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    August 20, 2015
                  Plaintiff-Appellee,

v                                                                   No. 317892
                                                                    St. Clair Circuit Court
TIA MARIE-MITCHELL SKINNER,                                         LC No. 10-002936-FC

                  Defendant-Appellant.


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

SAWYER, J. (dissenting).

          I respectfully dissent.

        While the majority sets forth a strong argument, it ultimately fails because it is based
upon a false premise: that Apprendi1 and its progeny requires that all facts relating to a sentence
must be found by a jury. Rather, the principle set forth in those cases establishes only that the
Sixth Amendment right to a jury trial requires the jury to find those facts necessary to impose a
sentence greater than that authorized by the legislature in the statute itself based upon the
conviction itself. And the statute adopted by the Michigan Legislature with respect to juvenile
lifers does not fit within that category.

       Looking first to Apprendi itself, the defendant was convicted under a New Jersey statute
of possession of a firearm for an unlawful purpose and that statute authorized a sentence of
between five and ten years in prison.2 A separate statute, described as a “hate crime” statute,
authorized an extended term of imprisonment, of between ten and twenty years, if the defendant
committed the crime with a purpose to intimidate a person or group because of their membership




1
    Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000).
2
    Id. at 468.


                                                -1-
in a specified protected class.3 The statute directed that that finding had to be made by the trial
judge and the burden of proof was by a preponderance of the evidence.4

        The Apprendi Court found this statutory scheme invalid, concluding as follows: “Other
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.”5 The majority in the case before us ignores this ultimate conclusion in Apprendi, that the
facts that must be submitted to the jury are those that increase the prescribed maximum sentence.

        But facts that the trial court considers in fixing a sentence that is within the maximum
authorized by the statute (without additional facts found by the jury) need not be determined by
the jury. The Apprendi majority distinguished between fact-finding that authorizes a court to
impose a greater sentence than the prescribed statutory maximum and a “sentencing factor.” It
did so in the context of distinguishing Apprendi from the earlier decision in McMillan v
Pennsylvania.6 Apprendi7 explains the distinction as follows:

                  It was in McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed
          2d 67 (1986), that this Court, for the first time, coined the term “sentencing
          factor” to refer to a fact that was not found by a jury but that could affect the
          sentence imposed by the judge. That case involved a challenge to the State’s
          Mandatory Minimum Sentencing Act, 42 Pa. Cons. Stat. § 9712 (1982).
          According to its provisions, anyone convicted of certain felonies would be subject
          to a mandatory minimum penalty of five years imprisonment if the judge found,
          by a preponderance of the evidence, that the person “visibly possessed a firearm”
          in the course of committing one of the specified felonies. 477 US at 81-82.
          Articulating for the first time, and then applying, a multifactor set of criteria for
          determining whether the Winship [In re Winship, 397 US 358; 90 S Ct 1444; 20 L
          Ed 2d 368 (1968)] protections applied to bar such a system, we concluded that the
          Pennsylvania statute did not run afoul of our previous admonitions against
          relieving the State of its burden of proving guilt, or tailoring the mere form of a
          criminal statute solely to avoid Winship’s strictures. 477 US at 86-88.

                  We did not, however, there budge from the position that (1) constitutional
          limits exist to States’ authority to define away facts necessary to constitute a
          criminal offense, 477 US at 85-88, and (2) that a state scheme that keeps from the
          jury facts that “expose [defendants] to greater or additional punishment,” 477 US
          at 88, may raise serious constitutional concern. As we explained:


3
    Id. at 468-469.
4
    Id. at 468.
5
    Id. at 490.
6
    McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986).
7
    530 US at 485-486.


                                                  -2-
                  “Section 9712 neither alters the maximum penalty for the crime
          committed nor creates a separate offense calling for a separate penalty; it operates
          solely to limit the sentencing court’s discretion in selecting a penalty within the
          range already available to it without the special finding of visible possession of a
          firearm. . . . The statute gives no impression of having been tailored to permit the
          visible possession finding to be a tail which wags the dog of the substantive
          offense. Petitioners’ claim that visible possession under the Pennsylvania statute
          is ‘really’ an element of the offenses for which they are being punished—that
          Pennsylvania has in effect defined a new set of upgraded felonies—would have at
          least more superficial appeal if a finding of visible possession exposed them to
          greater or additional punishment, cf. 18 USC § 2113(d) (providing separate and
          greater punishment for bank robberies accomplished through ‘use of a dangerous
          weapon or device’), but it does not.” 477 US at 87-88.

As I will discuss later, the statutory scheme created by our Legislature creates these McMillan-
like sentencing factors rather than requiring particular facts to be found in order for the trial court
to have the authority to impose the greater sentence of life without parole.

        The Supreme Court has consistently followed this distinction thereafter. In Ring v
Arizona,8 it rejected Arizona’s death penalty statute because it placed upon the sentencing judge
the responsibility of determining the existence of an aggravating factor necessary to impose the
death penalty. Without such a judicial determination, the jury’s verdict alone only authorized the
imposition of life imprisonment.9 After analyzing the effect of Apprendi, the Ring Court
summarized the law as follows: “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.”10

       Turning to Blakely v Washington,11 the Court considered a sentencing scheme that
authorized the trial court to upward depart from a standard sentence set by statute. The
defendant was convicted of kidnapping. Although the Washington statute authorized a
maximum sentence of up to 10 years, it further provided that the “standard range” for the
defendant’s offense was 49 to 53 months.12 But the statute further authorized a judge to impose
a sentence above the standard range if he found “substantial and compelling reasons justifying an
exceptional sentence.”13 The sentencing court must make findings of fact and conclusions of law
which justify the exceptional sentence and those findings are reviewable under a clearly


8
    536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002).
9
    Id. at 597.
10
     Id. at 602.
11
     542 US 296; 124 S Ct 2531; 159 L Ed 2d (2004).
12
     Id. at 299.
13
     Id., quoting Was Rev Code Ann § 9.94A.120(2).


                                                  -3-
erroneous standard.14 In rejecting the Washington sentencing scheme, the Court noted “that the
‘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.”15 Thus, a
judge’s sentencing authority is limited to “the maximum he may impose without any additional
findings.”16 The majority attempts to argue that Blakely controls this case because “the trial
court in this case acquired authority to enhance defendant’s sentence from a term-of-years to life
without parole ‘only upon finding some additional fact.’”17 But this attempt fails because MCL
769.25 does not, in fact, require the finding of an additional fact before it authorizes the
imposition of a life-without-parole sentence. Indeed, as Blakely points out,18 the question is not
whether the sentencing engages in judicial fact-finding, but on whether the defendant is entitled
to a lesser sentence without those facts being found:

                  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. In a system that says the judge may punish burglary with 10 to 40
          years, every burglar knows he is risking 40 years in jail. In a system that punishes
          burglary with a 10-year sentence, with another 30 added for use of a gun, the
          burglar who enters a home unarmed is entitled to no more than a 10-year
          sentence—and by reason of the Sixth Amendment the facts bearing upon that
          entitlement must be found by a jury.

Nothing in MCL 769.25 established a legal entitlement to defendant to be sentenced to a term of
years rather than life in prison. That is, a juvenile offender who commits first-degree murder,
even after the adoption of MCL 769.25, knows that they are risking being sentenced to life in
prison without the possibility of parole simply upon the jury’s conviction for first-degree murder
without the necessity of the jury finding any additional facts regarding the crime.

       This then leads to the Court’s decision in Cunningham v California.19 In Cunningham,
the defendant was convicted of sexual abuse of a child under the age of 14. Under California’s
determinate sentencing law, the crime was punishable by either a lower term of 6 years in prison,
a middle term of 12 years in prison, or an upper term of 16 years in prison.20 But the statute


14
     Id. at 299-300.
15
     Id. at 303 (emphasis in original).
16
     Id. at 304 (emphasis in original).
17
     Ante, slip op at 18, quoting Blakely, 542 US at 305.
18
     542 US at 309.
19
     549 US 270; 127 S Ct 856; 166 L Ed 2d 856 (2006).
20
     Id. at 275.


                                                  -4-
required the imposition of the middle term unless the judge found, by a preponderance of the
evidence, the existence of one or more aggravating factors. The judge so found and sentenced
Cunningham to the upper term.21 After a review of Apprendi and its progeny, the Cunningham
Court again summarized the basic principle that comes out of those cases: “If 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.”22

        This finally leads to the Supreme Court’s decision in Alleyne v United States,23 wherein
the Court took up the Apprendi principle in the context of increases in a mandatory minimum
sentence. Allen Alleyne was convicted under a federal robbery statute and a related statute
which required minimum sentences for the possession or use of a firearm in certain crimes. That
statute required a minimum sentence of 5 years, unless a firearm was brandished, in which case
the mandatory minimum was 7 years, and was further raised to 10 years if the firearm was
discharged.24 The verdict form indicated that Alleyne had used or carried a firearm, which
would authorize the mandatory five-year minimum sentence, but did not indicate whether the
firearm was brandished, thus authorizing the seven-year mandatory minimum.25 The trial court
found that a preponderance of the evidence supported the finding that Alleyne had brandished
the weapon and sentenced him to the mandatory minimum of seven years in prison.26 While the
Alleyne Court found that the fact of whether the defendant brandished a firearm must be found
by the jury in order to increase the mandatory minimum sentence that he faced,27 the Court also
took pains to note that facts that merely influence judicial discretion in sentencing do not have to
be found by a jury, stating as follows:28

                   In holding that facts that increase mandatory minimum sentences must be
           submitted to the jury, we take care to note what our holding does not entail. 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. See,
           e.g., Dillon v United States, 560 U.S. 817, ___, 130 S. Ct. 2683, 2692, 177 L. Ed.


21
     Id. at 275-276.
22
     Id. at 290.
23
     570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013).
24
     Id., 133 S Ct at 2155; see 18 USC 924(c)(1)(A).
25
     Alleyene, 133 S Ct at 2156.
26
     Id.
27
  In doing so, the Court explicitly found that its earlier decision in Harris v United States, 536
US 545; 122 S Ct 2406; 153 L Ed 2d (2002), could not be reconciled with Apprendi and also
questioned the continued validity of McMillan as it applied to mandatory minimum sentences.
133 S Ct at 2157-2158.
28
     Id. at 2163.


                                                  -5-
          2d 271 (2010), (“[W]ithin established limits[,] . . . the exercise of [sentencing]
          discretion does not contravene the Sixth Amendment even if it is informed by
          judge-found facts” (emphasis deleted and internal quotation marks omitted));
          Apprendi, 530 U.S., at 481, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (“[N]othing in this
          history suggests that it is impermissible for judges to exercise discretion—taking
          into consideration various factors relating both to offense and offender—in
          imposing a judgment within the range prescribed by statute”). This position has
          firm historical roots as well. As Bishop explained:

                  “[W]ithin the limits of any discretion as to the punishment which the law
          may have allowed, the judge, when he pronounces sentence, may suffer his
          discretion to be influenced by matter shown in aggravation or mitigation, not
          covered by the allegations of the indictment.” Bishop [Criminal Procedure (2d ed.
          1872)] §85, at 54.

                  “[E]stablishing what punishment is available by law and setting a specific
          punishment within the bounds that the law has prescribed are two different
          things.” Apprendi, supra, at 519, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (Thomas, J.,
          concurring). Our decision today is wholly consistent with the broad discretion of
          judges to select a sentence within the range authorized by law.

        The Michigan Supreme Court recently considered the application of Alleyene to the
Michigan sentencing guidelines in People v Lockridge.29 While not directly applicable to this
case, I do find its analysis relevant. Particularly, the Court makes the following observation in
finding the legislative sentencing guidelines to be constitutionally deficient in light of Alleyene:
“That deficiency is the extent to which the guidelines require judicial fact-finding beyond facts
admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily
increase the floor of the guidelines minimum sentence range, i.e. the ‘mandatory minimum’
sentence under Alleyne.”30 Applying this same principle to the statute before us, the juvenile
lifer law does require any particular judicial fact-finding to increase the potential sentence from a
term of years to life without parole. Indeed, as the Court observed, the “inquiry is whether the
pertinent facts that must be found are an element of the offense or a mere sentencing factor.”31

       I would submit that, regardless whether we look to Apprendi or Alleyene, or any of the
other decisions of the Supreme Court, the principle to be applied is simple: does the statutory
scheme enacted by the Legislature authorize the sentencing judge to impose a particular sentence
without any additional fact-finding or, to impose the particular sentence, an additional fact,
beyond that which supports the conviction itself, must be found. If it is the former, the
sentencing judge is free to impose the sentence that his or her discretion concludes is appropriate.



29
     ___ Mich ___; ___ NW2d ___ (Docket No. 149073, decided July 29, 2015).
30
     Lockridge, slip op at 1-2 (emphasis in original).
31
     Lockridge, slip op at 6.


                                                   -6-
If the latter, then the defendant has the right to have that additional fact found by a jury beyond a
reasonable doubt.

        Turning to the statute at issue in this case, I believe that it fits within the former
category—i.e., that no additional factfinding is necessary to justify a sentence of life without
parole. MCL 769.25 deals with the sentencing of defendants who were under the age of 18 at the
time that they committed a crime punishable by a sentence of life without parole and provides in
pertinent part as follows:

                (3) If the prosecuting attorney intends to seek a sentence of imprisonment
       for life without the possibility of parole for a case described in subsection (1)(a),
       the prosecuting attorney shall file the motion within 21 days after the defendant is
       convicted of that violation. If the prosecuting attorney intends to seek a sentence
       of imprisonment for life without the possibility of parole for a case described
       under subsection (1)(b), the prosecuting attorney shall file the motion within 90
       days after the effective date of the amendatory act that added this section. The
       motion shall specify the grounds on which the prosecuting attorney is requesting
       the court to impose a sentence of imprisonment for life without the possibility of
       parole.

               (4) If the prosecuting attorney does not file a motion under subsection (3)
       within the time periods provided for in that subsection, the court shall sentence
       the defendant to a term of years as provided in subsection (9).

                (5) If the prosecuting attorney files a motion under subsection (2)
       requesting that the individual be sentenced to imprisonment for life without parole
       eligibility, the individual shall file a response to the prosecution’s motion within
       14 days after receiving notice of the motion.

              (6) If the prosecuting attorney files a motion under subsection (2), the
       court shall conduct a hearing on the motion as part of the sentencing process. At
       the hearing, the trial court shall consider the factors listed in Miller v Alabama,
       576 US_____; 183 L Ed 2d 407; 132 S Ct 2455 (2012), and may consider any
       other criteria relevant to its decision, including the individual’s record while
       incarcerated.

              (7) At the hearing under subsection (6), the court shall specify on the
       record the aggravating and mitigating circumstances considered by the court and
       the court’s reasons supporting the sentence imposed. The court may consider
       evidence presented at trial together with any evidence presented at the sentencing
       hearing.

                                               ***

               (9) If the court decides not to sentence the individual to imprisonment for
       life without parole eligibility, the court shall sentence the individual to a term of
       imprisonment for which the maximum term shall be not less than 60 years and the
       minimum term shall be not less than 25 years or more than 40 years.
                                                -7-
        The majority fundamentally misreads this statute. First, the majority looks to People v
           32
Carp, and its reference to MCL 769.25 establishing a “default sentencing range” for defendants
convicted of first-degree murder committed while a juvenile.33 But the majority downplays the
fact that this statement is made in the context of the fact that this “default sentencing range” is
only applicable “absent a motion by the prosecutor seeking a sentence of life without parole” and
that the trial court may impose a sentence of life without parole after such a motion is filed and
conducting a hearing.34 The majority then performs an act of legalistic legerdemain and
reinterprets Carp as follows: “Stated differently, at the point of conviction, absent a motion by
the prosecution and without additional findings on the Miller[35] factors, the maximum
punishment that a trial court may impose upon a juvenile convicted of first-degree murder is a
term-of-years prison sentence.”36 If this statement were true, then I would agree with the
majority that the question of life-without-parole must be submitted to the jury. But the statement
is simply untrue. There are no additional findings which must be made in order for a defendant
to be subjected to a sentence of life without parole.37

        MCL 769.25(6) does require that the trial court must conduct a hearing before it may
impose a sentence of life without parole on a juvenile offender. And it further requires that the
trial court “consider” the factors listed in Miller, as well as any other criteria the trial court deems
relevant to its decision. MCL 769.25(7) then requires that “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.” But nowhere does the statute require the trial court to make
any particular finding of fact before it is authorized to impose a sentence of life without parole.
Rather, after conducting the hearing and considering the evidence presented at the hearing as
well as the evidence presented at trial, the trial court makes its decision and must state on the
record the reasons for that decision. As our Supreme Court noted in Carp, this process allows
for the “individualized sentencing” procedures established by Miller.38 This procedure also
presumably allows for more meaningful appellate review of the sentence.

        As for Miller itself, while MCL 769.25(6) directs the trial court to “consider the factors
listed in Miller v Alabama,” the opinion itself hardly establishes a list of factors which must be
met before a sentence of life without parole may be imposed. Rather, the opinion speaks in


32
     496 Mich 440; 852 NW2d 801 (2014).
33
     Id. at 458.
34
     Id.
35
     Miller v Alabama, 567 US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012).
36
     Ante, slip op at 14-15 (emphasis added).
37
  Arguably, the trial court must “find” that the prosecutor filed a motion within 21 days after
conviction as required by MCL 769.25(3). But I doubt that this is the type of “fact” that the
Supreme Court had in mind in determining a defendant’s Sixth Amendment rights in Apprendi
and its progeny.
38
     Carp, 496 Mich at 458-459.


                                                  -8-
general terms about why mandatory life without parole for a juvenile offender violates the Eighth
Amendment and what must be considered before imposing a sentence of life without parole. For
example, as to the former point, the Court39 states a mandatory life without parole sentence 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.

As for the latter point, the Court directs the sentencing court to “take into account how children
are different, and how those differences counsel against irrevocably sentencing them to a lifetime
in prison.”40 But neither Miller nor the statute sets forth any particular facts that must be found
before a sentence of life without parole may be imposed. Rather, both merely require the
sentencing court to take into account the individual circumstances of the juvenile offender before
determining whether a sentence of life without parole is appropriate in each particular case. But
this hardly establishes an “element of the crime” that must be determined by a jury beyond a
reasonable doubt.41

        Moreover, I note that an underlying issue in this case—the trial court’s failure to adopt
any particular burden of proof because none is set forth in the statute—further supports the
conclusion that the statute does not require any particular finding of fact. Rather, 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 proven. Rather, it only requires consideration of the relevant criteria to
guide the trial court into determining the appropriate individualized sentence for the defendant
before it.

        The majority perpetuates its mistaken reading of the statute when it states that the “state
conditioned defendant’s life without parole sentence on two things: (1) the prosecution’s filing
of a motion to impose the sentence, and (2) the trial court’s findings with respect to the Miller
factors and ‘any other criteria relevant to its decision.’”42 While the first point is correct, the
prosecution must file a motion, the second point, of course, is erroneous. The statute does not
require findings, but only that the trial court “shall consider” the Miller “factors” and other
relevant criteria. And “consider” does not mean to make findings, but, rather, “to think about


39
     Miller, 132 S Ct at 2468.
40
     Miller, 132 S Ct at 2469.
41
     Apprendi, 530 US at 477.
42
     Ante, slip op at 15, quoting MCL 769.25(6).


                                                   -9-
carefully” and “to think about in order to arrive at a judgment or decision” and “may suggest
giving thought to in order to reach a suitable conclusion, opinion, or decision.” Merriam-
Webster’s Collegiate Dictionary (11th ed), pp 265-266.

       The majority rejects the argument in the Attorney General’s amicus brief that no
additional facts are needed to authorize a life without parole sentence as follows:43

                  However, if as the state and the Attorney General contend, the “maximum
          allowable punishment” is life without parole at the point of defendant’s
          conviction, then that sentence would offend the constitution. Under Miller, a
          mandatory default sentence for juveniles cannot be life imprisonment without the
          possibility of parole. Such a sentence would not be an individualized sentence
          taking into account the factors enumerated in Miller.

But, of course, the statute does not provide for a mandatory default sentence of life without
parole. And it is the mandatory nature of the life-without-parole statutes that offended the Court
in Miller resulting in a holding that “the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.”44 And MCL 769.25
commits no such offense. The majority also latches onto a statement in a law review article by
Professor Sarah Russell that “Miller concludes that life without parole is an inappropriate
sentence for most juveniles, and may be given only in rare circumstances where certain facts are
established. Thus, the factual finding of ‘irreparable corruption” aggravates—not mitigates—the
penalty.”45 But, with all due respect to Professor Russell and the majority, Miller hardly
establishes “irreparable corruption” as an aggravating factor. Rather, Miller uses that term in a
quotation from Roper v Simmons, 543 US 551, 573; 125 S Ct 1183; 161 L Ed 2d 1 (2005), which
noted the difficulty in distinguishing between “transient immaturity” and “irreparable
corruption.”46 It uses that point to support its statement that “[a]lthough 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.”47 This hardly establishes “irreparable corruption” as an
aggravating factor that must be found in order for the Eighth Amendment to allow the imposition
of a life-without-parole sentence on a juvenile offender.

       Finally, the majority conflates the observation made in Carp48 that MCL 769.25 creates a
“default sentence” of a term-of-years if the prosecutor fails to move for a sentence of life without


43
     Ante, slip op at 17.
44
     Miller, 132 S Ct at 2469.
45
  Russell, Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment
Rights, 56 BC L Rev 553, 582 (2015); see ante, slip op at 18.
46
     Roper, 543 US at 573; see Miller, 132 S Ct at 2469.
47
     Miller, 132 S Ct at 2469.
48
     Carp, 496 Mich at 458.


                                                -10-
parole with a requirement that there be additional findings in order to impose a life-without-
parole sentence. Indeed, the majority describes the Attorney General’s argument that a term-of-
years sentence is not the “default sentence” as a “Herculean attempt at linguistic gymnastics.”49
But the only linguistic gymnastics here, Herculean or otherwise, are those of the majority. It
attempts to create a “default sentence” under the statute when none exists once the prosecutor
has moved for a life sentence. And the majority repeatedly states that the statute requires
“additional findings” in order to authorize a sentence of life without parole when no such
requirement is established under the statute.

         In conclusion, there is no need to impanel a jury to make any additional factual findings
to authorize the trial court to impose a sentence of life without parole. Under MCL 769.25, the
only factual finding necessary to authorize the trial court to impose a sentence of life without
parole was that defendant’s involvement in the killing of her father constituted first-degree
murder. The jury concluded that it did. Thus, Apprendi and the Sixth Amendment are satisfied
and the trial court possessed the statutory authority to impose a sentence of life without parole,
which it did. In fact, the trial court has done so three times: first, when it was mandatory, then a
second time on remand after the decision in Miller and then a third time on remand after the
decision in Carp and the passage of MCL 769.25. Perhaps the Lockridge majority says it best in
observing that “unrestrained judicial discretion within a broad range is in; legislative constraints
on that discretion that increase a sentence (whether minimum or maximum) beyond that
authorized by the jury’s verdict are out.”50 The majority attempts to find a legislative restraint on
the trial judge’s sentencing discretion where none exists.

          For the reasons stated above, I would affirm.



                                                              /s/ David H. Sawyer




49
     Ante, slip op at 21.
50
     Lockridge, slip op at 12.


                                                 -11-
