                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     March 27, 2018
               Plaintiff-Appellee,                                   9:00 a.m.

v                                                                    No. 339543
                                                                     Oakland Circuit Court
JESSIE HAYES,                                                        LC No. 1990-097706-FC

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                    No. 339544
                                                                     Oakland Circuit Court
DONYELLE MICHAEL BLACK,                                              LC No. 1988-083715-FC

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                    No. 339547
                                                                     Oakland Circuit Court
JEMAL TIPTON,                                                        LC No. 1987-078538-FC

               Defendant-Appellant.


Before: K. F. KELLY, P.J., and MURPHY and RIORDAN, JJ.

MURPHY, J.

         Defendants appeal by leave granted the opinion and order by the trial court rejecting their
efforts to avoid resentencing hearings on whether they should again be sentenced to life in prison
without parole for murders committed as juveniles, as opposed to being resentenced to a term of
years. We affirm.

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        Over 25 years ago, and as based on the verdicts, the three defendants, as juveniles,
committed first-degree murder, MCL 750.316, along with other offenses, and were sentenced to
life imprisonment without the possibility of parole, as mandated by Michigan law at the time.
The crimes were committed and defendants were tried in Oakland County Circuit Court. Current
Oakland County Prosecutor, Jessica R. Cooper (the prosecutor), was the circuit court judge who
presided over defendants’ trials, two of which were jury trials and one a bench trial, and she later
imposed their life-without-parole sentences.

        In Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), the United
States Supreme Court held that the punishment of life in prison absent the possibility of parole
for a defendant who was under the age of 18 at the time of the sentencing offense violates the
Eighth Amendment’s prohibition against cruel and unusual punishments. The Miller Court did
not indicate whether its decision was to be retroactively applied to closed cases involving
juvenile offenders. In light of Miller, the Michigan Legislature enacted MCL 769.25, which
provides a procedural framework for sentencing juvenile offenders who have committed offenses
punishable by life imprisonment without the possibility of parole; this provision applied to
pending and future cases. Anticipating the possibility of Miller’s retroactive application for
closed cases, the Legislature also enacted MCL 769.25a, which would be triggered if our
Supreme Court or the United States Supreme Court were to hold that Miller applied
retroactively. And subsequently, in Montgomery v Louisiana, __ US __; 136 S Ct 718; 193 L Ed
2d 599 (2016), the United States Supreme Court held that the rule announced in Miller, which
was a new substantive constitutional rule, was retroactive on state collateral review.
Accordingly, MCL 769.25a took effect.

       MCL 769.25a(4) sets forth the governing procedure that is relevant in the instant cases,
providing as follows:

               (a) Within 30 days after the date the supreme court's decision [making
       Miller retroactive] becomes final, the prosecuting attorney shall provide a list of
       names to the chief circuit judge of that county of all defendants who are subject to
       the jurisdiction of that court and who must be resentenced under that decision.

                (b) Within 180 days after the date the supreme court's decision becomes
       final, the prosecuting attorney shall file motions for resentencing in all cases in
       which the prosecuting attorney will be requesting the court to impose a sentence
       of imprisonment for life without the possibility of parole. A hearing on the motion
       shall be conducted as provided in section 25 of this chapter.

              (c) If the prosecuting attorney does not file a motion under subdivision (b),
       the court shall sentence the individual to a term of imprisonment for which the
       maximum term shall be 60 years and the minimum term shall be not less than 25
       years or more than 40 years. [Emphasis added.]

         In compliance with MCL 769.25a(4)(a) and its deadline, the prosecutor’s office provided
a list to the chief judge of the names of 49 individuals who were subject to the jurisdiction of the
court and who had to be resentenced under Montgomery. In compliance with MCL
769.25a(4)(b) and its deadline, the prosecutor’s office filed motions for resentencing with respect
to 44 of the 49 identified individuals, including the three defendants here, requesting the court to

                                                -2-
impose a sentence of imprisonment for life without the possibility of parole. More than nine
months after the resentencing motions were filed, more than a year after defendants each
obtained court-appointed counsel, and well beyond the 180-day window in MCL 769.25a(4)(b),
defendants filed motions to disqualify the prosecutor and her entire office, asserting a violation
of Michigan Rule of Professional Conduct (MRPC) 1.12.1 Defendants challenged the failure of
the prosecutor to initiate self-imposed recusal in the determination or efforts to have defendants
again sentenced to mandatory life imprisonment, premised on a conflict of interest, public policy,
and constitutional concerns given that the prosecutor served as the trial and sentencing judge on
the three cases. Defendants also pointed to stances unfavorable to juvenile lifers expressed by
the prosecutor. Defendants maintained that the prosecutor, as well as her office, were precluded
from being involved in the cases and that the prosecutor’s motions requesting sentences of life
without parole must be struck, which would effectively result in defendants receiving a term of
years, MCL 769.25a(4)(c).

       While defendants’ motions were pending, the prosecutor submitted a request to the
Michigan Attorney General, seeking appointment of a special prosecutor to handle the three
cases in accordance with MCL 49.160,2 which request was accepted and approved. The
Attorney General, exercising independent judgment, decided not to withdraw the prosecutor’s


1
    MRPC 1.12(a) provides:
                Except as stated in paragraph (d), a lawyer shall not represent anyone in
         connection with a matter in which the lawyer participated personally and
         substantially as a judge or other adjudicative officer, arbitrator, or law clerk to
         such a person, unless all parties to the proceeding consent after consultation.
2
    MCL 49.160 provides in part:
                 (1) If the prosecuting attorney of a county determines himself or herself to
         be disqualified by reason of conflict of interest or is otherwise unable to attend to
         the duties of the office, he or she shall file with the attorney general a petition
         stating the conflict or the reason he or she is unable to serve and requesting the
         appointment of a special prosecuting attorney to perform the duties of the
         prosecuting attorney in any matter in which the prosecuting attorney is
         disqualified or until the prosecuting attorney is able to serve.

                (2) If the attorney general determines that a prosecuting attorney is
         disqualified or otherwise unable to serve, the attorney general may elect to
         proceed in the matter or may appoint a prosecuting attorney or assistant
         prosecuting attorney who consents to the appointment to act as a special
         prosecuting attorney to perform the duties of the prosecuting attorney in any
         matter in which the prosecuting attorney is disqualified or until the prosecuting
         attorney is able to serve.




                                                  -3-
motions for mandatory life sentences and has proceeded as the prosecutorial entity pursuing such
sentences. A hearing was conducted on defendants’ disqualification motions. In a written
opinion and order, the trial court determined that the prosecutor effectively conceded
disqualification by making the request to the Attorney General under MCL 49.160; therefore, the
court found it unnecessary to specifically rule on the issue of disqualification. The trial court
still spent considerable time examining and discussing the disqualification issue for purposes of
resolving whether the prosecutor’s motions for mandatory life imprisonment should be struck or,
stated otherwise, whether the disqualification should operate retroactively, eviscerating the
timely motions for mandatory life imprisonment and making it impossible for the Attorney
General, at this late date, to file motions in compliance with MCL 769.25a(4)(b). For a variety
of reasons, the trial court concluded that the prosecutor’s motions should not be struck and that
the Attorney General had the authority to investigate and re-evaluate the prosecutor’s motions,
including the power to withdraw the motions. Defendants now appeal the court’s ruling.

        We conclude that MCL 49.160 dictates the outcome of these cases. We review de novo
issues of statutory construction. People v Stone, 463 Mich 558, 561; 621 NW2d 702 (2001).
MCL 49.160 was the procedural mechanism employed in these cases by which the prosecutor
recused or disqualified herself and her office from further participation in the cases. The
ultimate question is whether the disqualification or recusal requires the striking of the
prosecutor’s earlier and timely motions to seek sentences of life imprisonment without the
possibility of parole relative to the three defendants.

        MCL 49.160(2) provides, in pertinent part, that “the attorney general may elect to
proceed in the matter.” (Emphasis added.) To “proceed” means to go forward, to continue, to
go on, to move along, or to advance. Merriam-Webster’s Collegiate Dictionary (11th ed); see
also People v Perkins, 473 Mich 626, 639; 703 NW2d 448 (2005) (“We may consult dictionary
definitions of terms that are not defined in a statute.”). Accordingly, under MCL 49.160(2),
when the Attorney General, upon request, intervened in the three cases and took over the
prosecutions in regard to sentencing, the Attorney General did so for purposes of going forward
or continuing the existing cases, wherein the motions for mandatory life sentences had already
been timely filed. The procedural history of the case up to that point in time was not wiped out
by the transfer of prosecutorial power from the prosecutor to the Attorney General.

        Defendants’ main concern was the appropriateness of the prosecutor and her office
playing any role in making a sentencing decision under MCL 769.25a(4)(b), considering the
prosecutor’s history as the presiding judge at defendants’ trials and sentencing hearings and the
statements made by the prosecutor outside of a court setting. However, the subsequent recusal of
the prosecutor and her office and the involvement of the Attorney General effectively rendered
defendants’ concern inconsequential and irrelevant. We reach this conclusion given that the
Attorney General, upon accepting the cases, became “vested with all of the powers of the
prosecuting attorney . . ., including the power to investigate and initiate charges,” MCL
49.160(3). And the Attorney General thus had the full authority to withdraw the previously filed
motions seeking life imprisonment without the possibility of parole; however, on contemplation
of each of the cases and the surrounding circumstances, the Attorney General decided to proceed
on the same course as the prosecutor. Defendants, therefore, have received the unbiased and un-
conflicted review that they demand, and a judge, or perhaps a jury, will later decide defendants’
sentences. Had recusal and the acceptance of the cases by the Attorney General occurred during
the 180-day period set forth in MCL 769.25a(4)(b), with the Attorney General making the initial
                                               -4-
determination to seek mandatory life imprisonment consistent with its current position,
defendants would be, as they are now, awaiting resentencing hearings. Under the procedural
circumstances, defendants have simply not suffered any harm. See In re Osborne, 459 Mich
360, 368-369; 589 NW2d 763 (1999) (prosecutor at termination hearing previously represented
parent subject to the termination proceeding absent objection or notice of the problem by the trial
court; our Supreme Court stated that “we are not prepared to sweep away the 1996 and 1997
proceedings in the absence of demonstrated harm”).

       Affirmed.


                                                            /s/ William B. Murphy
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Michael J. Riordan




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