                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      September 25, 2018
               Plaintiff-Appellee,

v                                                                     No. 339925
                                                                      Wayne Circuit Court
DIARRA BRYANT,                                                        LC No. 96-001846-01-FC

               Defendant-Appellant.


Before: SWARTZLE, P.J., and JANSEN and O’BRIEN, JJ.

JANSEN, J. (dissenting).

       I respectfully dissent.

       I agree with defendant’s argument that the trial court should have considered the factors
enumerated in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012). As
explained by our Supreme Court in People v Skinner, ___ Mich ___, ___; ___ NW2d ___ (2018)
(Docket Nos. 152448, 153081, 153345),

       The following factors are 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 himself – no matter
       how brutal or dysfunctional; (3) 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; (4) 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
       (5) the possibility of rehabilitation. [Skinner, ___ Mich at ___; slip op at 12
       (quotation marks excluding, citing Miller 567 US at 447-448).]

        This Court has also held that “a failure to consider the distinctive attributes of youth, such
as those discussed in Miller, when sentencing a minor to a term of years pursuant to MCL
769.25a, so undermines a sentencing judge’s exercise of his or her discretion as to constitute
reversible error.” People v Wines, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No.
336550); slip op at 3. When sentencing a juvenile for first-degree murder, trial courts should
engage in a balancing act, weighing the facts and circumstances surrounding the offense while
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simultaneously taking “into account the attributes of youth such as those described in Miller.”
Wines, ___ Mich App at ___; slip op at 3. Further, this Court has also observed that “[t]he
objectives generally relevant to sentencing were first articulated by the Michigan Supreme Court
in People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972), and have been often reiterated by
our Courts.” Id. In Snow, our Supreme Court articulated that “in imposing [its] sentence, the
[trial] 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.’ ” Wines, ___ Mich App at ___; slip op at 3, quoting Snow, 386 Mich
at 592.

       However, in my view, the trial court in this case did not engage in such a balancing act,
and should have fully addressed the factors enumerated in Miller. Instead, the trial court relied
too heavily on the sentence of a co-defendant, a consideration I find to be irrelevant. What
sentence a co-defendant may have received is likewise not mentioned in either Snow or Miller.
The trial court failed to acknowledge that it was clear from the circumstances surrounding
defendant’s crime. Moreover, at the time of sentencing, Wines had not yet been decided by this
Court, and therefore the trial court was unaware that its sentencing of defendant should have
been guided by the Miller factors.

        During resentencing, the trial court did mention that defendant had appeared to turn his
life around while in prison, even when he began taking those steps he had “no chance of parole
based on the sentence that was there.” The trial court even went so far as to commend defendant
for “taking action to be a positive role model to others who are in prison[.]” Defense counsel
also noted that defendant had “glowing work reports” while incarcerated, defendant was
involved in community service events, social activities, and had helped develop a “re-entry”
program. During the resentencing hearing, defendant read a statement wherein his expressed
remorse for his crimes, and repeatedly apologized for his actions. Clearly, defendant has the
potential for rehabilitation. Additionally, it is clear that defendant’s chronological age at the time
of the offense affected his decision making ability. The factual background of this case makes it
clear that defendant’s “immaturity, impetuosity, and failure to appreciate risks and
consequences” of his actions were a direct result of his young age, which the trial court failed to
address. Miller 567 US at 447. Likewise, the trial court failed to address defendant’s family and
home environment at the time of the offense, as well as whether defendant could have been
charged with and convicted of a lesser offense due to youthful incompetencies. Accordingly, I
would vacate defendant’s sentence and remand for resentencing so that the trial court may have
the benefit and guidance of Miller, pursuant to this Court’s holding in Wines.


                                                              /s/ Kathleen Jansen




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