                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 13, 2018
               Plaintiff-Appellee,

v                                                                    No. 335696
                                                                     Kent Circuit Court
JUAN JOE CANTU,                                                      LC No. 95-003319-FC

               Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals as of right the trial court’s denial of his motion for resentencing for his
convictions for kidnapping, MCL 750.349, and assault with intent to murder, MCL 750.83. The
trial court sentenced defendant to 50 to 80 years’ imprisonment for kidnapping and life in prison,
with the possibility of parole, for assault with intent to murder. We affirm.

       On November 12, 1995, defendant and his friend kidnapped and robbed Daniel
VanTatenhove and Arthur Zima, Jr., and murdered VanTatenhove. At the time he committed the
crimes, defendant was 16 years old. This Court, previously reviewing this case, described the
incident as follows:

              Defendants kidnapped VanTatenhove and Arthur Zima, Jr., in Grand
       Rapids and, after robbing Zima, drove north to the Howard City area. Defendant
       Carter shot VanTatenhove four times and shot at, but missed, Zima. During the
       drive back to Grand Rapids, VanTatenhove, who had been placed in the vehicle’s
       trunk, could be heard moaning. Once in Grand Rapids, defendants left Zima
       bound and gagged in a garage. Defendants continued driving around Grand
       Rapids, during which time VanTatenhove continued to moan. Zima eventually
       escaped from the garage, defendants were apprehended by the police, and
       VanTatenhove was discovered deceased in the vehicle’s trunk. [People v Carter,
       unpublished opinion per curiam of the Court of Appeals, issued June 12, 1998
       (Docket No. 197319), p 2.]

        Defendant was convicted after a jury trial of felony murder, MCL 750.316; assault with
intent to murder, MCL 750.83; armed robbery, MCL 750.529; two counts of kidnapping, MCL
750.349; and five counts of possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. Defendant was sentenced to five concurrent terms of two years’
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imprisonment for the felony-firearm convictions, the sentences to be followed consecutively by
concurrent terms of life in prison without parole for the felony-murder conviction, life in prison
for the assault with intent to murder conviction, 20 to 40 years’ imprisonment for the armed
robbery conviction, and 50 to 80 years’ imprisonment for each kidnapping conviction.

       This Court subsequently vacated defendant’s conviction and sentence for the kidnapping
of VanTatenhove, as well at the accompanying felony-firearm conviction and sentence,
concluding that sentencing defendant for both felony murder, and the predicate felony of
kidnapping the same victim, violated double jeopardy protections. People v Carter, unpublished
opinion per curiam of the Court of Appeals, issued June 12, 1998 (Docket No. 197319), pp 3, 6.

        Defendant later obtained resentencing in the trial court for his felony murder conviction
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 had received a sentence of
mandatory life-without-possibility-of-parole for the felony murder conviction, defendant was
entitled to resentencing on that conviction in light of Miller and Montgomery, as well as
Michigan’s legislative response to Miller, MCL 769.25a. The trial court subsequently
resentenced defendant to 40 to 60 years’ imprisonment for the felony-murder conviction, in
accordance with MCL 769.25.

        Defendant also sought resentencing on his convictions of kidnapping and assault with
intent to murder, which defendant argued should be punishable only by sentences that are equal
or lesser sentences than the newly-imposed sentence for the felony murder conviction.
Defendant argued that it constituted cruel or unusual punishment under the Michigan
Constitution to be given higher sentences for what generally are considered lesser offenses.
Defendant also argued that MCL 769.25a encompasses “resentencing hearings,” and thus was
not limited to resentencing of the felony-murder conviction.

        The trial court rejected defendant’s argument and denied the motion for resentencing,
finding the sentences defendant received to be “reasonable, proportional, and appropriate.” The
trial court stated that MCL 769.25a, Miller, and Montgomery applied only to sentences of
mandatory life without the possibility of parole. The trial court also held that

       the Legislature made policy decisions in light of Miller and Montgomery and
       tailored a remedy for defendants who had invalid life-without-parole sentences.
       That this remedy did not include revisiting other sentences does not make those
       sentences invalid, cruel, or unusual. The sentences handed down for kidnapping
       and assault with intent to murder were validly imposed at the time and nothing
       changed in the law to make them invalid.

       Defendant now contends on appeal that he is entitled to resentencing on his convictions
for kidnapping and assault with intent to murder. Defendant reasons that his newly-lowered
sentence for the felony murder conviction is lower than the sentences previously imposed upon
him for his convictions for kidnapping and assault with intent to murder, rendering those

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sentences disproportionate, and therefore violative of the Michigan constitutional prohibition
against cruel or unusual punishment.

        This Court reviews 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 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 addition, we review constitutional questions de novo. People v Swint, 225 Mich App
353, 364; 572 NW2d 666 (1997).

        The Eighth Amendment of the United States Constitution provides: “Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” US
Const, Am VIII. The Michigan Constitution provides even greater protection in this regard,
stating: “Excessive bail shall not be required; excessive fines shall not be imposed; cruel or
unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained.” 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 because that sentence is the “harshest possible penalty,” 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).

        In response to Miller, our Legislature enacted a statutory scheme, MCL 769.25 and
769.25a, to address the sentences of juveniles who had been mandatorily sentenced to life
without the possibility of parole. Under MCL 769.25, if on resentencing a prosecutor declines to
seek reinstatement of a defendant’s sentence of life without parole, or if the trial court decides
not to sentence a defendant to life without parole, the trial court must then sentence the defendant
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.” See MCL 769.25(4) and
(9).

         Pursuant to Miller and MCL 769.25, defendant in this case was resentenced for his felony
murder conviction to a term of years, instead of his previous sentence of life without possibility
of parole. Defendant first argues that under these circumstances, MCL 769.25 impliedly
provides resentencing opportunities for all his offenses. We disagree. When interpreting a
statute, our responsibility is to determine and give effect to the intent of the Legislature; the most
reliable indicator of that intent is the statutory language, which we view in context and must
construe according to its plain and ordinary meaning. People v Lowe, 484 Mich 718, 721-722;
773 NW2d 1 (2009). When the language of a statute is unambiguous, courts must apply the
language as written without further construction. People v Borchard-Ruhland, 460 Mich 278,
284; 597 NW2d 1 (1999). Moreover, absent a legislative statement to the contrary, criminal
statutes are to be strictly construed. People v Boscaglia, 419 Mich 556, 563; 357 NW2d 648
(1984).

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        Defendant invites us to ignore that MCL 769.25 and 769.25a provide a remedy for
juveniles sentenced through the operation of mandatory life-without-the-possibility-of-parole
statutes. But MCL 769.25a does not entitle defendants to be resentenced on all convictions;
instead it serves as a means by which the state can comply with Miller’s procedural requirements
for those convicted of crimes of which one may be sentenced to life without the possibility of
parole. MCL 769.25 specifically states the circumstances and the offenses for which a defendant
may be entitled to resentencing under that statute. Defendant’s convictions for kidnapping and
assault with intent to murder are not among those articulated in the statute and therefore do not
fall within the purview of MCL 769.25. Construing MCL 769.25 strictly, as we are bound to do,
we conclude that it is inapplicable in defendant’s quest for resentencing for his convictions for
kidnapping and assault with intent to murder.

        Defendant also argues that maintaining his current sentences for kidnapping and assault
with intent to murder constitutes cruel or unusual punishment because the sentence for his
felony-murder conviction, after resentencing pursuant to Miller and Montgomery (40 to 60
years), is now less than his sentences for kidnapping and assault with intent to murder.
Defendant argues that the holding and spirit of Miller contemplate that the most serious penalties
should be reserved for the most serious crimes. Defendant argues that felony murder is generally
viewed as a more serious crime than either kidnapping or assault with intent to murder, and
therefore the lesser charges must carry lesser penalties in order to be proportional, and therefore
not cruel or unusual. Again, we disagree. The decision in Miller, applied retroactively by
Montgomery, applies only to juveniles sentenced to life without parole. Miller, 567 US at 465.
With regard to defendant’s convictions for kidnapping and assault with intent to murder,
defendant has not been sentenced to life without parole for those offenses. Accordingly, Miller
and Montgomery do not entitle defendant to resentencing on these convictions.

        Moreover, defendant does not contend that his sentences fall outside of the sentencing
guidelines range or that the sentences were imposed in reliance upon inaccurate information in
calculating the sentencing guidelines range. Accordingly, the sentences are presumptively
proportional, and proportional sentences do not constitute cruel or unusual punishment. See
People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008).

        We also observe that in this case the sentences are proportional in light of the horrendous
nature of the crimes committed. Because of the brutality of the facts surrounding the kidnapping
and assault-with-intent-to-murder convictions, the trial court determined that lengthy sentences
were not only reasonable but proportional, stating that “the kidnapping charge might be even
more egregious than the felony murder charge” because the surviving victim had to witness the
murder of his friend, survived an attempt on his own life, was then forced to place his friend in
the trunk of the vehicle used in the commission of the crimes, heard his friend’s moans during
the return trip to Grand Rapids, and endured the fear that defendant would also succeed in killing
him. The gravity of these “lesser offenses” of kidnapping and assault with intent to murder were
not viewed as less important by the trial court in comparison to the felony-murder offense. Our
review of the record indicates that the trial court appropriately considered the gravity of the
crimes in fashioning defendant’s punishment.




                                                -4-
We conclude, as did the trial court, that the remedy mandated by Miller did not render
defendant’s other sentences either cruel or unusual, nor did Miller contemplate revisiting
sentences other than mandatory life without the possibility of parole imposed upon a juvenile.

       Affirmed.



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




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