                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    August 20, 2015
               Plaintiff-Appellee,                                  9:05 a.m.

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.

BORRELLO, J.

        This case presents a constitutional issue of first impression as to whether the Sixth
Amendment mandates that a jury make the findings set forth by Miller v Alabama, 576 US ___;
132 S Ct 2455; 183 L Ed 2d 407 (2012) as codified in MCL 769.25(6), before sentencing a
juvenile homicide offender to life imprisonment without the possibility of parole. We find that
the Sixth Amendment mandates that juveniles convicted of homicide who face the possibility of
a sentence of life without the possibility of parole have a right to have their sentence determined
by a jury. In so finding, we expressly reserve the issue of whether this defendant should receive
the penalty of life in prison without the possibility of parole for a jury. In this case, defendant
requested and was denied her right to have a jury decide her sentence. Accordingly, we vacate
her sentence for first-degree murder and remand for resentencing on that offense consistent with
this opinion.

                                       I. BACKGROUND

      In November 2010, at the age of 17, defendant arranged to have her parents Paul Skinner
and Mara Skinner murdered. Specifically,

              The victims, defendant’s parents, were viciously attacked in their bed in
       November 2010. Defendant’s father was killed in the attack and defendant’s
       mother suffered roughly 25 stab wounds. An investigation led to Jonathan Kurtz,
       defendant’s boyfriend, and James Preston. The investigation also led to the
       discovery of a map of the neighborhood and a note containing tips on how to
       break into defendant’s house and commit the murders. Cell phone records
       revealed text messages between defendant, Kurtz, and Preston that indicated that
       the crime had been planned by all three. During an interview with police,
       defendant implicated Preston, then implicated Kurtz and Preston, and then
                                                -1-
       admitted that she had talked to Kurtz about killing her parents. Defendant said
       that Kurtz was going to seek Preston’s help. [People v Skinner, unpublished
       opinion per curiam of the Court of Appeals, issued February 21, 2013 (Docket
       No. 306903) (slip op at 1).]

       Defendant was charged in connection with the attacks and, following a trial, a jury
convicted her of first-degree premeditated murder, MCL 750.316(1)(a), attempted murder, MCL
750.91, and conspiracy to commit murder, MCL 750.157a. On September 16, 2011, the trial
court sentenced defendant to mandatory life without parole for the first-degree murder
conviction, and life sentences each for the attempted murder and conspiracy to commit murder
convictions. Defendant appealed her convictions and sentences.

        While defendant’s appeal was pending, on June 25, 2012, the United States Supreme
Court decided Miller, 576 US at ___, wherein the Court held that mandatory life without parole
sentences for juvenile offenders violated the Eighth Amendment. Subsequently, this Court
affirmed defendant’s convictions and life sentences for attempted murder and conspiracy, but
remanded for resentencing on defendant’s first-degree murder conviction to consider the factors
set forth in Miller.1

        On July 11, 2013, the trial court held a resentencing hearing and again sentenced
defendant to life without parole for the first-degree murder conviction. Defendant again
appealed her sentence. While defendant’s appeal was pending, on March 4, 2014, MCL 769.25
took effect, which was enacted in response to Miller and established a framework for imposing a
life without parole sentence upon a juvenile convicted of, inter alia, first-degree murder.
Meanwhile, this Court ordered defendant’s appeal held in abeyance pending our Supreme
Court’s decision in People v Carp, 496 Mich 440; 852 NW2d 801 (2014), which concerned the
retroactivity of Miller. Following the decision in Carp, this Court remanded the case to the trial
court for a second resentencing—third sentencing—hearing to be conducted in accordance with
MCL 769.25; this Court retained jurisdiction.2

        On second remand, defendant moved to impanel a jury, arguing that a jury should make
the factual findings mandated by MCL 769.25(6) at the resentencing hearing. The trial court
denied defendant’s motion and this Court denied defendant’s emergency application for leave to
appeal that order.3 Thereafter, the trial court held the second resentencing hearing on September
18, September 19, and September 24, 2014, and, after hearing evidence from both defendant and
the prosecution, the court again sentenced defendant to life without parole for the first-degree
murder conviction. Defendant now appeals that sentence as of right, arguing, inter alia, that


1
 People v Skinner, unpublished opinion per curiam of the Court of Appeals, issued February 21,
2013 (Docket No. 306903).
2
 People v Skinner, unpublished order of the Court of Appeals, entered July 30, 2014 (Docket
No. 317892).
3
  People v Skinner, unpublished order of the Court of Appeals, entered September 17, 2014
(Docket No. 323509).


                                               -2-
MCL 769.25 violates her Sixth Amendment right to a jury because it exposes her to a harsher
penalty than was otherwise authorized by the jury verdict.

                                 II. STANDARD OF REVIEW

       We review constitutional issues de novo. People v Nutt, 469 Mich 565, 574; 677 NW2d
1 (2004). Issues of statutory construction are also reviewed de novo. People v Williams, 483
Mich 226, 232; 769 NW2d 605 (2009).

                                    III. GOVERNING LAW

       This case brings us to the intersection of the Sixth and Eighth Amendments to the United
States Constitution. Specifically, the issue before us illustrates, following Miller, the interplay
between the Eighth Amendment’s limitations with respect to sentencing a juvenile to life
imprisonment without the possibility of parole and a juvenile’s right to a jury trial under the
Sixth Amendment. We proceed with a review of the seminal case of Miller before discussing
Miller’s impact on Michigan’s sentencing scheme; we then review relevant Supreme Court Sixth
Amendment jurisprudence before applying that precedent to Michigan’s post-Miller juvenile
sentencing scheme.

                                    A. MILLER v ALABAMA

        Miller is part of a line of growth in the Supreme Court’s Eighth Amendment
jurisprudence relative to juvenile offenders. This precedent, in part, can be traced back to
Thompson v Oklahoma, 487 US 815; 108 S Ct 2687; 101 L Ed 2d 702 (1988), wherein a
plurality of the Court held that the Eighth Amendment categorically barred “the execution of any
offender under the age of 16 at the time of the crime.” Roper v Simmons, 543 US 551, 561; 125
S Ct 1183; 161 L Ed 2d 1 (2005), citing Thompson, 487 US at 818-838. Subsequently, in Roper,
543 US at 551, the Court expanded on the rationale in the Thompson plurality and held that the
Eighth Amendment categorically barred imposition of the death penalty upon all juveniles under
the age of 18 irrespective of the offense. Id. at 568-578. The Court reasoned that “[c]apital
punishment must be limited to those offenders who commit a narrow category of the most
serious crimes and whose extreme culpability makes them the most deserving of execution.” Id.
at 568 (quotation marks and citations omitted). The Court reasoned that, because of the unique
differences between juveniles and adults, “juvenile offenders cannot with reliability be classified
among the worst offenders.” Id. at 569. In particular, the Court noted, juveniles exhibit “[a] lack
of maturity and underdeveloped sense of responsibility” that “often result[s] in impetuous and
ill-considered actions and decisions.” Id. (quotation marks and citations omitted). Additionally,
juveniles “are more vulnerable or susceptible to negative influences and outside pressures,
including peer pressure,” and “the character of a juvenile is not as well formed as that of an
adult.” Id. at 569-570. Thus, “neither retribution nor deterrence provides adequate justification
for imposing the death penalty on juvenile offenders. . . .” Id. at 572.

       Following Roper, under the Eighth Amendment the maximum penalty that could be
imposed upon a juvenile offender was life imprisonment without the possibility of parole. The
Court further limited that form of punishment in Graham v Florida, 560 US 48; 130 S Ct 2011;
176 L Ed 2d 825 (2010), and Miller, 576 US at ____. Specifically, in Graham, the Court held

                                                -3-
that the Eighth Amendment categorically barred a sentence of life without parole for juvenile
“nonhomicide offenders.” Graham, 560 US at 74. The Graham Court reasoned that juveniles
who “do not kill, intend to kill, or foresee that life will be taken are categorically less deserving
of the most serious forms of punishment. . . .” Id. at 69. The Court explained that, unlike “non-
homicide” offenses, homicide is unique with respect to its “moral depravity” and the injury it
inflicts upon its victim and the public and concluded, “[i]t follows that, when compared to an
adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral
culpability. The age of the offender and the nature of the crime each bear on the analysis.” Id. at
69. The Court proceeded to establish a bright-line categorical bar on life without parole
sentences for juvenile non-homicide offenders. Id. at 74. Although a state was not “required to
guarantee eventual freedom,” juveniles convicted of non-homicide offenses were to be afforded
“some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.” Id. at 75.

        Building upon Roper and Graham, in Miller, the Supreme Court held that, irrespective of
the offense, mandatory life sentences without the possibility of parole for juvenile offenders
violated the Eighth Amendment. Miller, 132 S Ct at 2460. Given the unique characteristics of
juveniles, the Court reasoned, the Eighth Amendment required consideration of an offender’s
youthfulness during sentencing, something that mandatory sentencing schemes failed to do. Id.
at 2464-2466. The Court explained:

               Most fundamentally, Graham insists that youth matters in determining the
       appropriateness of a lifetime of incarceration without the possibility of parole. In
       the circumstances there, juvenile status precluded a life-without-parole sentence,
       even though an adult could receive it for a similar crime. And in other contexts as
       well, the characteristics of youth, and the way they weaken rationales for
       punishment, can render a life-without-parole sentence disproportionate . . . An
       offender’s age, we made clear in Graham, is relevant to the Eighth Amendment,
       and so criminal procedure laws that fail to take defendants’ youthfulness into
       account at all would be flawed. [Id. at 2465-2466 (internal quotation marks and
       citations omitted).]

        Drawing from capital punishment cases, the Supreme Court reasoned that life without
parole sentences were analogous to capital punishment for juveniles and, therefore, the Eighth
Amendment mandated individualized sentencing for this particularly harsh form of punishment.
Id. at 2466-2467. The Miller Court referenced Woodson v North Carolina, 428 US 280; 96 S Ct
2987; 49 L Ed 2d 944 (1976), wherein the Supreme Court struck down a mandatory death
sentencing scheme because the scheme “gave no significance to the character and record of the
individual offender or the circumstances of the offense, and exclude[ed] from consideration . . .
the possibility of compassionate or mitigating factors.” Miller, 132 S Ct at 2467 (quotation
marks and citations omitted). Additionally, the Supreme Court noted that:

               Subsequent decisions have elaborated on the requirement that capital
       defendants have an opportunity to advance, and the judge or jury a chance to
       assess, any mitigating factors, so that the death penalty is reserved only for the
       most culpable defendants committing the most serious offenses. [Id. (citations
       omitted).]

                                                -4-
In the context of juveniles, the Supreme Court’s individualized sentencing jurisprudence
illustrated the importance that “a sentencer have the ability to consider the mitigating qualities of
youth,” in assessing culpability including, among other things, age, background and mental and
emotional development. Id. (quotation marks and citations omitted).

        The Supreme Court concluded that “the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without possibility of parole for juvenile offenders.” Id. at 2469.
However, the Supreme Court did not categorically bar life without parole sentences for juveniles
convicted of a homicide offense provided that the sentencer take into account “how children are
different, and how those differences counsel against irrevocably sentencing them to a lifetime in
prison.” Id. (footnote omitted). The Supreme Court cautioned that:

               this harshest possible penalty will be uncommon. That is especially so
       because of the great difficulty we noted in Roper and Graham of distinguishing at
       this early age between ‘the juvenile offender whose crime reflects unfortunate yet
       transient immaturity, and the rare juvenile offender whose crime reflects
       irreparable corruption.’ [Id. at 424, quoting Roper, 543 US at 573 (emphasis
       added).]

       Thus, after Miller, mandatory life without parole sentences for juvenile offenders are
unconstitutional in all cases; however, in homicide cases, an individualized life without parole
sentence may be imposed where the crime reflects “irreparable corruption.” The Miller Court
did not establish a bright-line test to determine whether a juvenile’s crime reflects “irreparable
corruption;” instead, “Miller discussed a range of factors relevant to a sentencer’s determination
of whether a particular defendant is a ‘rare juvenile offender whose crime reflects irreparable
corruption.’” People v Gutierrez, 58 Cal 4th 1354, 1388; 171 Cal Rptr 3d 421; 324 P 3d 245
(2014), quoting Miller, 132 S Ct at 2469. Those factors were set forth as follows:

               Mandatory life without parole 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. Indeed, it ignores that he might have been
       charged 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 finally, this mandatory punishment disregards the possibility of rehabilitation
       even when the circumstances most suggest it. [Miller, 132 S Ct at 2469.]

       Miller, therefore, categorically barred mandatory life without parole sentences for
juveniles, but, in doing so, the Supreme Court also set forth a framework for imposing a life
without parole sentence when a juvenile’s homicide offense reflects “irreparable corruption.”
That is, the Supreme Court provided factors to be used during sentencing that serve as a


                                                -5-
guidepost for determining whether a juvenile’s homicide offense reflects “irreparable
corruption.”

                     B. MICHIGAN’S SENTENCING SCHEME POST-MILLER

       Miller had wide-ranging effect nationwide in that, with respect to juvenile offenders, it
invalidated state statutes that imposed mandatory life without parole sentences.4 In Michigan,
the Legislature enacted 2014 PA 22, codified at MCL 769.25 and MCL 769.25a5 in response to
Miller. Relevant to this case, MCL 769.25 provides in pertinent part:

                  (1) This section applies to a criminal defendant who was less than 18 years
          of age at the time he or she committed an offense described in subsection (2) []

                                                 ***

                 (2) The prosecuting attorney may file a motion under this section to
          sentence a defendant described in subsection (1) to imprisonment for life without
          the possibility of parole if the individual is or was convicted of any of the
          following violations:

                 (b) A violation of . . . [MCL 750.316][6] []



4
  See e.g. Russell, Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth
Amendment Rights, 56 B C L Rev 553, 583 (2015) (noting that, “in the mere two years since
Miller was decided, the decision has been cited in more than 1000 cases nationwide” and
“sixteen state legislatures have enacted statutes in response to Graham and Miller, and many
others are considering bills” (footnotes omitted).
5
    MCL 769.25a concerns retroactivity of MCL 769.25 and it is not at issue in this case.
6
  In addition to first-degree murder, MCL 769.25(2) provides that a prosecuting attorney may
move for a life without parole sentence for juveniles convicted of several other offenses
including MCL 333.17764(7); MCL 750.16(5); MCL 750.18; MCL 750.436(2)(e) and MCL
750.543f. The issue of whether these offenses constitute “homicide offenses” under Graham,
560 US at 48 and Miller, 576 US at___, for purposes of sentencing juvenile offenders to life
without parole is not before this Court. See e.g. Graham, 560 US at 50 (in categorically barring
life-without-parole sentences for juveniles convicted of “non homicide” offenses, the Court
noted that “because juveniles have lessened culpability they are less deserving of the most
serious forms of punishment . . . Moreover, defendants who do not kill, intend to kill, or foresee
that life will be taken are categorically less deserving of such punishments than are murderers.”)
(Emphasis added); see also Miller, 132 S Ct at 2475-2476 (BREYER, J., concurring) (stating that
“[g]iven Graham’s reasoning, the kinds of homicide that can subject a juvenile offender to life
without parole must exclude instances where the juvenile himself neither kills nor intends to kill
the victim”) (emphasis added). For purposes of this case, there is no dispute that premeditated
first-degree murder, of which defendant was convicted, constitutes a homicide offense that is
eligible for life without parole under Graham and Miller.


                                                  -6-
                                               ***

                (3) 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).

                                               ***

               (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. [] [Emphasis
       added.]

       This legislation “significantly altered Michigan’s sentencing scheme for juvenile
offenders convicted of crimes that had previously carried a sentence of life without parole.”
Carp, 496 Mich at 456. Specifically, under this new scheme,

               Rather than imposing fixed sentences of life without parole on all
       defendants convicted of violating MCL 750.316, MCL 769.25 now establishes a
       default sentencing range for individuals who commit first-degree murder before
       turning 18 years of age. Pursuant to the new law, absent a motion by the
       prosecutor seeking a sentence of life without parole, 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-
              When, however, the prosecutor does file a motion seeking a life-without-
       parole sentence, the trial court “shall conduct a hearing on the motion as part of
       the sentencing process” and “shall consider the factors listed in Miller v.
       Alabama....” MCL 769.25(6). Accordingly, the sentencing of juvenile first-
       degree-murder offenders now provides for the so-called “individualized
       sentencing” procedures of Miller. [Id. at 458-459 (emphasis added) (citations
       omitted).]

         Thus, in response to Miller, and as explained in Carp, the Michigan Legislature created a
default sentence for juvenile defendants convicted of first-degree murder. The default sentence
is a term-of-years. See MCL 769.25(4) (providing that, absent the prosecution’s motion for a life
without parole sentence, “the court shall sentence the defendant to a term of years as provided in
subsection (9)” (emphasis added)). Alternatively, a life without parole sentence may be imposed
if the following framework is adhered to: (1) the prosecution timely files a motion seeking a life
without parole sentence, (2) the trial court holds a sentencing hearing, (3) at the hearing, the trial
court considers the factors listed in Miller, and “may” consider “any other criteria relevant to its
decision,” (4) the trial court specifies “the aggravating and mitigating circumstances considered
by the court and the court’s reasons supporting the sentence imposed,” and the court “may
consider evidence presented at trial together with any evidence presented at the sentencing
hearing.” See MCL 769.25 (emphasis added).

       Defendant contends that this sentencing scheme violates her Sixth Amendment right to a
jury because it exposes her to a potential life without parole sentence, which is greater than the
sentence otherwise authorized by the jury verdict standing alone.

        The Miller Court did not address the issue of who should decide whether a juvenile
offender should receive a life without parole sentence and we are unaware of any court that has
yet to address the issue. In the final paragraph of its opinion, the Court stated: “Graham, Roper,
and our individualized sentencing decisions make clear that a judge or jury must have the
opportunity to consider mitigating circumstances before imposing the harshest possible penalty
for juveniles.” Miller, 132 S Ct at 2475 (emphasis added). This passing reference to “judge or
jury” is not dispositive of the issue. “The Court’s decision in Miller does not discuss who is
empowered to make the sentencing decision that the case involves a ‘rare’ instance where the
juvenile is ‘irreparably corrupt’ and may be sentenced to life without parole.” Russell, Jury
Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights, 56 BC L Rev
553, 569 (2015). Instead, “Miller generally avoids the issue by referencing the ‘sentencer’
throughout the opinion, rather than specifying a judge or a jury.” Id. Moreover, “[b]ecause
Sixth Amendment jury rights can be waived, Miller’s reference to the judge as a possible
sentencer is hardly dispositive.” Id. (footnote omitted). Indeed, in declining to address this
issue, 7 in Carp our Supreme Court noted that, given recent Sixth Amendment jurisprudence,


7
  In Carp, our Supreme Court noted “[a]s none of the defendants before this Court asserts that his
sentence is deficient because it was not the product of a jury determination, we find it
unnecessary to further opine on this issue and leave it to another day to determine whether the
individualized sentencing procedures required by Miller must be performed by a jury in light of


                                                 -8-
“Miller’s reference to individualized sentencing being performed by a ‘judge or jury’ might
merely be instructive on the issue but not dispositive.” Carp, 496 Mich at 491 n 20.

       Because Miller did not directly address the issue of who decides a life sentence without
the possibility of parole, and because there is no case law on point, we turn to the United States
Supreme Court’s relevant Sixth Amendment jurisprudence for guidance.

                         C. SIXTH AMENDMENT RIGHT TO A JURY

        In relevant part, the Sixth Amendment to the United States Constitution provides: “In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed. . . .” US
Const, Am VI. The rights afforded under the Sixth Amendment are incorporated to the states by
the Due Process Clause of the Fourteenth Amendment. Presley v Georgia, 558 US 209, 211-
212; 130 S Ct 721; 175 L Ed 2d 675 (2010). “Taken together, these rights indisputably entitle a
criminal defendant to a jury determination that [he] is guilty of every element of the crime with
which he is charged, beyond a reasonable doubt,” Apprendi v New Jersey, 530 US 466, 477; 120
S Ct 2348; 147 L Ed 2d 435 (2000) (quotation marks and citation omitted), and are deeply-
rooted in our nation’s jurisprudence:

               [T]he historical foundation for our recognition of these principles extends
       down centuries into the common law. ‘To guard against a spirit of oppression and
       tyranny on the part of rulers,’ and ‘as the great bulwark of [our] civil and political
       liberties,” 2 J. Story, Commentaries on the Constitution of the United States 540-
       541 (4th ed. 1873), trial by jury has been understood to require that “the truth of
       every accusation, whether preferred in the shape of indictment, information, or
       appeal, should afterwards be confirmed by the unanimous suffrage of twelve of
       [the defendant’s] equals and neighbours [sic].” 4 W. Blackstone, Commentaries
       on the Laws of England 343 (1769). [] [Apprendi, 530 US at 477.]

        Cognizant of this historical backdrop, the United States Supreme Court has recently
expanded the scope of a criminal defendant’s Sixth Amendment right to a jury in several cases
commencing with Apprendi, 530 US at 466. In that case, the petitioner pleaded guilty of, inter
alia, a second-degree weapons offense, which carried a maximum penalty of between 5 and 10
years imprisonment under New Jersey law. Id. at 469-470. Thereafter, the prosecutor filed a
motion to enhance the petitioner’s sentence under a New Jersey “hate crime” statute that
permitted a sentencing judge to impose an enhanced sentence of up to 20 years upon a finding
that the offender acted “with a purpose to intimidate an individual or group” because of
membership in a protected class. Id. Following a hearing, the sentencing judge found by a
preponderance of the evidence that the petitioner was motivated by racial animus and sentenced
him to 12 years’ imprisonment, 2 more than the maximum authorized under the law without the
enhancement. Id. at 471.


[Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013)].” People v Carp,
496 Mich 440, 491 n 20; 852 NW2d 801 (2014).


                                                -9-
        On appeal, the petitioner argued, in part, that the finding of racial animus was required to
be proved to a jury beyond a reasonable doubt. Id. The Supreme Court agreed, holding that the
sentence violated the petitioner’s right to “a jury determination that [he] is guilty of every
element of the crime with which he is charged, beyond a reasonable doubt.” Id. at 477, 490-491
(quotation marks and citation omitted). The Court reasoned that the petitioner’s Sixth
Amendment jury right attached to both the weapon’s offense and the hate crime aggravator
because “New Jersey threatened [the petitioner] with certain pains if he unlawfully possessed a
weapon and with additional pains if he selected his victims with a purpose to intimidate them
because of their race.” Id. at 476. “Merely using the label ‘sentence enhancement’ to describe
the latter surely does not provide a principled basis for treating them differently.” Id. Rather,
“[t]he relevant inquiry is one not of form, but of effect—does the required finding expose the
defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494
(footnote omitted). This is because “[o]ther 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.” Id. at 490 (emphasis added).

        Two years later, in Ring, the Supreme Court applied Apprendi to Arizona’s death penalty
sentencing scheme, which authorized a trial judge to increase a capital defendant’s maximum
sentence from life imprisonment to death based upon judicially found aggravating factors. Ring,
536 US at 588. The Supreme Court concluded that, “in effect, the required finding . . . exposed
[the defendant] to a greater punishment than that authorized by the jury’s guilty verdict.” Id. at
604. Thus, the aggravators acted as the “functional equivalent” of elements of a greater offense
and were required to be proved to a jury beyond a reasonable doubt. Id. at 609. The Court
explained that, “‘[w]hen the term ‘sentence enhancement’ is used to describe an increase beyond
the maximum authorized statutory sentence, it is the functional equivalent of an element of a
greater offense than the one covered by the jury’s guilty verdict.’” Id. at 605, quoting Apprendi,
530 US at 495. The relevant inquiry, the Supreme Court noted, was “not one of form but of
effect” and “[i]f 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.” Id. at 602 (quotation marks and citations omitted) (emphasis added).8

        Taken together, Apprendi established, and Ring reaffirmed that, other than a prior
conviction, any finding of fact that increases a criminal defendant’s maximum sentence must be
proved to a jury beyond a reasonable doubt. “In each case, we concluded that the defendant’s
constitutional rights had been violated because the judge had imposed a sentence greater than the
maximum he could have imposed under state law without the challenged factual finding.”
Blakely v Washington, 542 US 296, 303; 124 S Ct 2531; 159 L Ed 2d 403 (2004). In the years


8
 In arriving at its holding, the Ring Court overruled, in part, Walton v Arizona, 497 US 639; 110
S Ct 3047; 111 L Ed 2d 511 (1990), which had rejected a Sixth Amendment challenge to the
same sentencing scheme approximately 12 years earlier. The Court reasoned that Walton and
Apprendi were “irreconcilable,” explaining that “[c]apital defendants, no less than noncapital
defendants . . . are entitled to a jury determination of any fact on which the legislature conditions
an increase in their maximum punishment.” Ring, 536 US at 489.


                                                -10-
following, the Supreme Court applied Apprendi to invalidate two state sentencing schemes in
Washington and California, both of which share similarities with the sentencing scheme at issue
in this case.

       In Blakely, 542 US at 296, the Supreme Court held that Washington’s determinate
sentencing scheme ran afoul of Apprendi. In that case, the petitioner pleaded guilty of, inter alia,
second-degree kidnapping with a firearm, a class B felony. Id. at 299. State law provided that
class B felonies in general carried a statutory maximum of 10 years’ imprisonment; however,
under the state’s Sentencing Reform Act, the standard sentencing range for the second-degree
kidnapping offense was 49 to 53 months. Id. The Reform Act authorized, but did not require,
the sentencing judge to make an upward departure from the standard range upon a finding of
“substantial and compelling reasons justifying an exceptional sentence.” Id., quoting Wash Rev
Code Ann § 9.94A.120(2). The act listed non-exhaustive aggravating factors justifying such a
departure. Id.

        Relying on the Reform Act, the sentencing judge departed from the recommended
standard sentencing range of 49 to 53 months and sentenced the petitioner to 90 months
imprisonment—37 months above the standard range—after finding that the petitioner acted with
“deliberate cruelty.” Id. at 300. The state argued, in part, that there was no Apprendi violation
because the statutory maximum authorized by law was the general 10-year maximum for class B
felonies as opposed to the 49-53 month standard range for second-degree kidnapping. Id. at 303.
The Supreme Court rejected this argument, explaining that, for purposes of Apprendi, the
“statutory maximum” 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.” Blakely, 542 US at 303. The
Supreme Court stated:

               In other words, the relevant ‘statutory maximum’ is not the maximum
       sentence a judge may impose after finding additional facts, but the maximum he
       may impose without any additional findings. When a judge inflicts punishment
       that the jury’s verdict alone does not allow, the jury has not found all the facts
       which the law makes essential to the punishment . . . and the judge exceeds his
       proper authority. [Id. at 303-304, (quotation marks and citation omitted.)]

       The Court also rejected the state’s argument that the Reform Act did not violate Apprendi
because the sentencing judge retained discretion regarding whether to impose an enhanced
sentence, explaining:

              The State in Blakely had endeavored to distinguish Apprendi on the
       ground that ‘[u]nder the Washington guidelines, an exceptional sentence is within
       the court’s discretion as a result of a guilty verdict.’ . . . We rejected that
       argument. The judge could not have sentenced Blakely above the standard range
       without finding the additional fact of deliberate cruelty. Consequently, that fact
       was subject to the Sixth Amendment’s jury-trial guarantee. [Cunningham v
       California, 549 US 270, 283; 127 S Ct 856; 166 L Ed 2d 856 (2007), citing
       Blakely, 542 US at 305 (internal quotation marks and citations omitted).]



                                               -11-
The Blakely Court concluded that because “the judge in this case could not have imposed the
exceptional 90-month sentence solely on the basis of the facts admitted in the guilty plea,” the
sentence ran afoul of the Sixth Amendment. Blakely, 542 US at 304.

        After deciding Blakely, in Cunningham, 549 US at 270, the Supreme Court held that
California’s Determinate Sentencing Law (DSL) violated the Sixth Amendment.9                  In
Cunningham, the petitioner was convicted of a sex offense. Id. at 275. Under the DSL, the
offense was punishable by a lower (6 year), middle, (12 year) and upper (16 year) sentence. Id.
The DSL provided that, “the court shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime.” Id. at 277. At a post-trial sentencing
hearing, the sentencing judge departed from the 12-year middle term and imposed the upper 16-
year term after finding six aggravating circumstances by a preponderance of the evidence. Id. at
275-276.

        On appeal, the Supreme Court held that the DSL violated the Sixth Amendment,
explaining, “[t]his Court has repeatedly held that, under the Sixth Amendment, any fact that
exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and
established beyond a reasonable doubt, not merely by a preponderance of the evidence.” Id. at
281 (emphasis added). The Court concluded that, “[b]ecause the DSL allocates to judges sole
authority to find facts permitting the imposing of an upper term sentence, the system violates the
Sixth Amendment.” Id. at 293.

       In arriving at its holding, the Cunningham Court rejected the California Supreme Court’s
view that the DSL resembled a permissible “advisory system,” explaining:

               Under California’s system, judges are not free to exercise their discretion
       to select a specific sentence within a defined range. [Rather], California’s
       Legislature has adopted sentencing triads, three fixed sentences with no ranges
       between them. [The petitioner’s] sentencing judge had no discretion to select a
       sentence within a range of 6 to 16 years. His instruction was to select 12 years,
       nothing less and nothing more, unless he found facts allowing the imposition of a
       sentence of 6 or 16 years. Factfinding to elevate a sentence from 12 to 16 years,
       our decisions make plain, falls within the province of the jury employing a
       beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining
       where the preponderance of the evidence lies. [Id. at 292 (quotation marks and
       internal citations omitted).]




9
  In another case following Blakely, the Supreme Court struck down certain provisions of the
Federal Sentencing Guidelines on grounds that they violated the Sixth Amendment to the extent
that they mandated enhanced sentences based on judicially-found facts. United States v Booker,
543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005). Given that this case does not involve
sentencing guidelines, Booker is not highly instructive for purposes of our analysis.


                                              -12-
        The Cunningham Court concluded, “[b]ecause the DSL authorizes the judge, not the jury,
to find the facts permitting an upper term sentence, the system cannot withstand measurement
against our Sixth Amendment precedent.” Id. at 293 (footnote omitted).

        Apprendi and its progeny concerned judicial fact finding in the context of a criminal
defendant’s maximum sentence. In Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L
Ed 2d 314 (2013), the Supreme Court applied Apprendi in the context of mandatory minimum
sentences. In Alleyne, a jury convicted the petitioner of a federal robbery offense. Id. at 2155-
2156. The sentencing judge increased the petitioner’s mandatory minimum sentence from five to
seven years after finding that the petitioner brandished a weapon during commission of the
robbery. Id. at 2156. The petitioner argued that the jury did not determine that he brandished a
weapon and therefore he was not subject to the higher sentence. Id. The Supreme Court agreed,
rejecting the previous distinction it had drawn in Harris v United States, 536 US 545; 122 S Ct
2406; 153 L Ed 2d 524 (2002)—one that distinguished between “facts that increase the statutory
maximum and facts that increase only the mandatory minimum.” Alleyne, 133 S Ct at 2155.
Instead, the Alleyne Court explained that “[t]he touchstone for determining whether a fact must
be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element’ or
‘ingredient’ of the charged offense.” Id. at 2158. And “a fact is by definition an element of the
offense and must be submitted to the jury if it increases the punishment above what is otherwise
legally prescribed.” Id. (emphasis added). This definition of “elements” “necessarily includes
not only facts that increase the ceiling, but also those that increase the floor.” Id. The Supreme
Court concluded:

               [T]he essential Sixth Amendment inquiry is whether a fact is an element
       of the crime. When a finding of fact alters the legally prescribed punishment so
       as to aggravate it, the fact necessarily forms a constituent part of a new offense
       and must be submitted to the jury. It is no answer to say that the defendant could
       have received the same sentence with or without that fact. [Id. at 2162.]

        Apprendi through Alleyne represent a line of growth in the Supreme Court’s Sixth
Amendment jurisprudence concerning the scope of a criminal defendant’s right to a jury. This
jurisprudence can be summarized as follows: other than a prior conviction, any fact that
increases either the floor or the ceiling of a criminal defendant’s sentence beyond that which “a
judge may impose solely on the basis of facts reflected in the jury verdict or admitted by
defendant,” must be submitted to a jury and proved beyond a reasonable doubt. Blakely, 542 US
at 296; see also Apprendi, 530 US at 466; Ring, 536 US at 584; Cunningham, 549 US at 270;
Alleyne, 133 S Ct at 2155. We proceed by applying this jurisprudence to the sentencing scheme
at issue in this case.

                                      IV. APPLICATION

                    A. MCL 769.25 VIOLATES THE SIXTH AMENDMENT

        Our application of the Supreme Court’s Sixth Amendment jurisprudence begins with a
determination of whether the findings mandated by MCL 750.25 constitute elements of the
offense. Alleyne, 133 S Ct at 2162. To answer that question, we must determine if the findings
“alter[] the legally prescribed punishment so as to aggravate it,” if so, the findings “necessarily

                                               -13-
form[] a constituent part of a new offense and must be submitted to the jury” and proved beyond
a reasonable doubt. Id.

       In this case, following the jury’s verdict and absent a prosecution motion seeking a life
without parole sentence followed by additional findings by the trial court, the legally prescribed
maximum punishment that defendant faced for her first-degree murder conviction was
imprisonment for a term-of-years. Specifically, MCL 750.316 provides in relevant part as
follows:

              (1) Except as provided in . . . [MCL 769.25 and 769.25a], a person who
       commits any of the following is guilty of first degree murder and shall be
       punished by imprisonment for life without eligibility for parole:

               (a) Murder perpetrated by means of poison, lying in wait, or any other
       willful, deliberate, and premeditated killing. [Emphasis added.]

        The phrase “[e]xcept as provided in” means that punishment for first-degree murder is
contingent on the provisions of MCL 769.25. As noted above, MCL 769.25 contains provisions
that establish a default term-of-years prison sentence for a juvenile convicted of first-degree
murder. Specifically, the statute provides in pertinent part that “[t]he prosecuting attorney may
file a motion under this section to sentence a [] [juvenile defendant] to imprisonment for life
without the possibility of parole if the individual is or was convicted of [] [first-degree murder.]”
MCL 769.25(2). Absent this motion, “the court shall sentence the defendant to a term of years. .
. .” MCL 769.25(4) (emphasis added). The effect of this sentencing scheme clearly establishes a
“default” term-of-years sentence for juvenile defendants convicted of first-degree murder. See
Carp, 496 Mich at 458 (explaining that “MCL 769.25 now establishes a default sentencing
range for individuals who commit first-degree murder before turning 18 years of age” (emphasis
added);10 MCL 769.25(4) (providing that, absent the prosecution’s motion to impose a life
without parole sentence, “the court shall sentence the defendant to a term of years as provided in
subsection (9)” (emphasis added)).11

       Stated differently, at the point of conviction, absent a motion by the prosecution and
without additional findings on the Miller factors, the maximum punishment that a trial court may


10
   Our dissenting colleague erroneously contends that we “conflate” the language in Carp. Post
at 10-11. To the contrary, Justice MARKMAN, writing for the majority in Carp, described MCL
769.25 as follows: “[r]ather than imposing fixed sentences of life without parole on all
defendants convicted of violating MCL 750.316, MCL 769.25 now establishes a default
sentencing range for individuals who commit first-degree murder before turning 18 years of
age.” Carp, 496 Mich at 458 (emphasis added). The dissent fails to articulate what part of this
language we “conflate.”
11
   MCL 769.25(9) governs a term-of-years sentence for juvenile defendants and it requires a
sentencing court to impose “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.”


                                                -14-
impose upon a juvenile convicted of first-degree murder is a term-of-years prison sentence. See
Blakely, 542 US at 303 (holding that for purposes of Apprendi, the “statutory maximum” “is not
the maximum sentence a judge may impose after finding additional facts, but the maximum he
may impose without any additional findings.”) Thus, following her jury conviction, defendant
was subject to a term-of-years prison sentence. Once the prosecuting attorney filed a motion to
impose a life-without-parole sentence, defendant was exposed to a potentially harsher penalty
contingent on findings made by the trial court. This violated defendant’s right to “a jury
determination that [she] is guilty of every element of the crime with which [she] is charged,
beyond a reasonable doubt,” Apprendi, 530 US at 477 (quotation marks and citation omitted)
because “[o]ther 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.” Id. at 490.

        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.” This scheme
authorized the trial court to enhance defendant’s sentence from a term-of-years to life without
parole based on findings made by a judge not a jury. As such, the sentencing scheme is akin to
the schemes at issue in Apprendi, Ring, Blakely and Cunningham. Each of those cases involved
a sentencing scheme that authorized a judge to enhance a defendant’s maximum sentence based
solely upon judicial fact-finding. The Supreme Court found these schemes unconstitutional,
explaining, “[t]his Court has repeatedly held that, under the Sixth Amendment, any fact that
exposes a defendant to a greater potential sentence must be found by a jury, not a judge. . . .”
Cunningham, 549 US at 281 (emphasis added). Similarly, the sentencing scheme in this case
cannot stand when examined under the lens of the Supreme Court’s Sixth Amendment
jurisprudence.

        Clearly, the findings mandated by MCL 769.25(6) “exposed [defendant] to a greater
punishment than that authorized by the jury’s guilty verdict;” the findings therefore acted as the
“functional equivalent” of elements of a greater offense that were required to be proved to a jury
beyond a reasonable doubt. Ring, 536 US at 604. Enhanced punishment under MCL 769.25 is
not based merely on defendant’s prior convictions, on facts admitted by defendant, or on facts
that are part and parcel to the elements that were submitted to the jury during the guilt-phase of
the proceeding Rather, like in Apprendi, 530 US at 476, in this case, the state threatened
defendant with certain pains—i.e. a term of years sentence—following her jury conviction of
first-degree murder and with additional pains—i.e. life without parole—following additional
findings by the trial court. “Merely using the label ‘sentence enhancement’ to describe the latter
surely does not provide a principled basis for treating them differently.” Id. The effect of MCL
769.25 plainly subjects defendant to harsher punishment based on judicially found facts in
contravention of the Sixth Amendment.

        We note that MCL 769.25 is unique to Michigan’s sentencing scheme such that our
Supreme Court’s recent decision in People v Lockridge, ___Mich___; ___NW2d___ (2015)
(Docket No. 149073), while not directly on point, lends support to our conclusion that a
defendant’s maximum sentence cannot be increased based on judicial fact finding. In Lockridge,
in relevant part, our Supreme Court was tasked with addressing whether, for purposes of Alleyne,
“a judge’s determination of the appropriate sentencing guidelines range . . . establishes a

                                                -15-
‘mandatory minimum sentence,’ such that the facts used to score the offense variables must be
admitted by the defendant or established beyond a reasonable doubt to the trier of fact. . . .” Slip
op. at 5-6 n 11. The Lockridge Court answered this question in the affirmative, holding that
Michigan’s sentencing guidelines were constitutionally deficient under Apprendi as extended by
Alleyne. Id. at 1-2. The deficiency was “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.” Id.

        As a remedy, the Lockridge Court severed MCL 769.34(2) “to the extent that it makes the
sentencing guidelines range as scored on the basis of facts beyond those admitted by the
defendant or found by the jury beyond a reasonable doubt mandatory,” and struck down the
requirement in MCL 769.34(3) “that a sentencing court that departs from the applicable
guidelines range must articulate a substantial and compelling reason for that departure.” Id. at 2.
Going forward, “a sentencing court must determine the applicable guidelines range and take it
into account when imposing a sentence,” however, “a guidelines minimum sentence range
calculated in violation of Apprendi and Alleyne is advisory only and . . . sentences that depart
from that threshold are to be reviewed by appellate courts for reasonableness.” Id.

        Lockridge concerned the constitutionality of Michigan’s sentencing guidelines—
guidelines that govern a defendant’s mandatory-minimum sentence. Importantly, however, the
Lockridge Court addressed the constitutionality of the guidelines with the understanding that a
defendant’s maximum sentence is fixed by law and not affected by the guidelines. See Slip op. at
15 (noting that “scoring the sentencing guidelines and establishing the guidelines minimum
sentence range does not alter the maximum sentence.”) In contrast, this case concerns
enhancement of a juvenile defendant’s maximum sentence for first-degree murder under MCL
750.316 and MCL 769.25. An enhanced maximum sentence imposed under this statute is not
governed by the sentencing guidelines, but rather is part of a legislative response to the United
States Supreme Court’s holding in Miller. Indeed, this case is unlike any other sentencing case
decided in Michigan in that MCL 769.25 is a sui generis exception to the rule in Michigan that,
apart from habitual offender statutes, maximum sentences are fixed by law and cannot be
increased based on judicially-found facts. See e.g. People v McCullers, 479 Mich 672, 694; 739
NW2d 563 (2007), overruled in part on other grounds, Lockridge, ___Mich___, (noting that,
apart from habitual offender statutes, a criminal defendant’s maximum sentence in Michigan is
“prescribed by MCL 769.8, which requires a sentencing judge to impose no less than the
prescribed statutory maximum sentence as the maximum sentence for every felony conviction”
(quotation marks, citations, and footnote omitted)).

        That this case does not involve scoring of sentencing guidelines to fix a mandatory
minimum sentence, but rather involves the constitutionality of increasing a maximum sentence
places it squarely within the familiar purview of Apprendi, Ring, Blakely and Cunningham. The
analysis, therefore, is simple: apart from a prior conviction or a fact admitted by the defendant,
any fact that exposes a defendant to an increased maximum sentence beyond that which is
authorized by the jury verdict standing alone, must be submitted to a jury and proved beyond a
reasonable doubt. Moreover, in the context of increasing a maximum sentence based on
judicially-found facts, judicial discretion cannot substitute for a defendant’s constitutional right
to a jury. See e.g. Alleyne, 133 S Ct 2162 (observing that “if a judge were to find a fact that

                                               -16-
increased the statutory maximum sentence, such a finding would violate the Sixth Amendment,
even if the defendant ultimately received a sentence falling within the original sentencing range
(i.e., the range applicable without that aggravating fact);” Blakely, 542 US at 305, 305 n 8
(noting that where a judge acquires authority to impose an enhanced sentence “only upon finding
some additional fact,” “[w]hether the judicially determined facts require a sentence enhancement
or merely allow it, the verdict alone does not authorize the sentence” and it is therefore
constitutionally deficient).

        The state argues that MCL 769.25 does not expose defendant to an increased penalty
because “[a]t the time of conviction, [defendant] faced the potential penalty of life without
possibility of parole,” and the “maximum allowable punishment is—at both the point of
conviction and at sentencing—life without the possibility of parole.” Similarly, the Attorney
General, as amicus curiae, argues that “[t]he statutory maximum penalty for first-degree
murder—even for minors—is life without parole . . . No facts are needed to authorize the
sentence, beyond those contained in the jury’s verdict.” 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. See e.g. Russell, 56 BC L Rev at 581 (explaining that under Miller, “[t]he
default is not life without parole. It is only in the rare or unusual case-where a factual finding of
irreparable corruption is made—that a juvenile may be exposed to life without parole”). This is
why MCL 769.25 creates a default term-of-years sentence for juveniles convicted under MCL
750.316. That is, at the point of conviction, the maximum sentence that defendant faced, absent
additional findings by the trial court, was a term-of-years sentence. Like in Apprendi, Ring,
Blakely and Cunningham, here, defendant’s maximum sentence could only be enhanced
following findings made by a judge.

        Furthermore, the Supreme Court rejected a similar argument in Ring, 536 US at 605-606.
In that case, Arizona argued that its capital punishment was constitutional, in part, because
Arizona’s first-degree murder statute specified that “death or life imprisonment” were the only
sentencing options. Id. at 603-604. Therefore, according to Arizona, when the sentencing judge
sentenced the petitioner to death, he was “sentenced within the range of punishment authorized
by the jury verdict.” Id. at 604. The Supreme Court rejected this argument, explaining that
“[t]he Arizona first-degree murder statute authorizes a maximum penalty of death only in a
formal sense.” Id. (quotation marks and citations omitted). Instead, the Supreme Court looked
to the effect of the statute over its form, noting that, “[i]n effect, ‘the required finding [of an
aggravated circumstance] expose[d] [the petitioner] to a greater punishment than that authorized
by the jury’s guilty verdict.” Id., quoting Apprendi, 530 US at 494. Similarly, in this case, MCL
750.316 authorizes a life without parole sentence for juveniles “only in a formal sense,” and, in
effect, the required findings mandated by MCL 769.25(6) subjected defendant to greater
punishment than that authorized by the jury’s guilty verdict.

       The state and the Attorney General attempt to distinguish Ring from the present case by
arguing that, unlike in Ring, which required the sentencing judge to find one of several specified
aggravating factors, MCL 769.25 does not mandate the presence of any factor before authorizing


                                                -17-
a life without parole sentence. This is a distinction without any real meaning that was rejected in
Blakely, wherein the Court explained:

              [w]hether the judge’s authority to impose an enhanced sentence depends
       on finding a specified fact (as in Apprendi), one of several specified facts (as in
       Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict
       alone does not authorize the sentence. The judge acquires that authority only
       upon finding some additional fact. [Blakely, 542 US at 305 (footnote omitted).]

As in Blakely, what is critical is that, 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.” Id. In that respect, this case is not distinguishable from Ring, Blakely or any of
the other United States Supreme Court decisions relative to defendant’s Sixth Amendment rights
discussed supra.

        The Attorney General also argues that Ring is distinguishable because, unlike in Ring, in
this case, the factors in MCL 769.25(6) do not enhance the sentence, but instead act as mitigating
factors that can bring the sentence down to a term-of-years. The Attorney General reads the
statute backwards. The term-of-years sentence is the default that can be enhanced based on
judicial findings. Thus, under the statutory configuration, the Miller factors are used to seek
enhancement of defendant’s punishment.

        Similarly, the Attorney General argues that neither MCL 769.25 nor Miller require “any
fact to be found before a trial court imposes a sentence of life without parole,” therefore, the life-
without-parole sentence was available at the time of conviction. This argument ignores the plain
language of the statute and misconstrues Miller. Specifically, MCL 769.25(6) provides that,
upon the prosecution’s motion, “the court shall conduct a hearing . . . as part of the sentencing
process . . . [and] shall consider the factors listed in [Miller, 576 US at___]” (emphasis added).
By their very nature, the factors enumerated in Miller necessitate factual findings. See e.g.
Gutierrez, 58 Cal 4th at 1388 (explaining that “Miller discussed a range of factors relevant to a
sentencer’s determination of whether a particular defendant is a rare juvenile offender whose
crime reflects irreparable corruption” (emphasis added)); Russell, 56 BC L Rev at 581 (noting
that, “the consideration of mitigation and aggravation under Miller is part of making a particular
factual determination: is the juvenile irreparably corrupt and incapable of rehabilitation?”)
Moreover, “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.” Russell,
56 BC L Rev at 582.12



12
   Our dissenting colleague erroneously posits that we “latch[] onto a statement in a law review
article” to support the proposition that “irreparable corruption” is an “aggravating factor.” Post
at 10. To the contrary, we do not hold that “irreparable corruption” is an “aggravating factor.”
Rather, the Miller Court held that life imprisonment without parole for juvenile homicide
offenders is constitutionally permissible only in those rare cases where a juvenile’s crime reflects


                                                -18-
        In addition, as noted, MCL 769.25(7) provides that, in imposing the sentence, “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” (emphasis added). Thus, the language
of the statute necessarily requires the trial court to make findings of fact before imposing a life
without parole sentence.13

        In a similar argument, the dissent posits that Miller “hardly establishes a list of factors
which must be met before a sentence of life without parole may be imposed,” and states that
Miller does not “set[] forth any particular facts that must be found before a sentence of life
without parole may be imposed.” Post at 8-9. Instead, according to the dissent, Miller “merely
require[s] 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.” Id. at 9. The dissent concludes that because a sentencing court need only
“consider” the Miller factors as opposed to make findings on the factors, MCL 769.25 does not
violate Apprendi and its progeny. Id. at 9-10. Conveniently, the dissent fails to articulate how a
judge should take into account, without making any findings of fact, a juvenile’s immaturity,
impetuosity, his or her failure to appreciate risks and consequences, his or her family and home
environment, whether the home environment is “brutal or dysfunctional,” whether the juvenile

“irreparable corruption.” Miller, 132 S Ct at 2469. The factors provided by the Miller Court
serve as a guidepost during the sentencing phase to determine if the juvenile’s offense reflects
irreparable corruption. Absent this determination, life imprisonment without parole violates the
Eighth Amendment. Moreover, this is not a maxim derived from a law review article. See e.g.
People v Gutierrez, 58 Cal 4th 1354, 1388; 171 Cal Rptr 3d 421; 324 P 3d 245 (2014), quoting
Miller, 132 S Ct at 2469 (explaining that “Miller discussed a range of factors relevant to a
sentencer’s determination of whether a particular defendant is a ‘rare juvenile offender whose
crime reflects irreparable corruption.’”)
13
   The dissent acknowledges that MCL 769.25(7) requires the sentencing court to “specify on the
record the aggravating and mitigating circumstances considered by the court and the court’s
reasons supporting the sentence imposed.” Post at 8. However, the dissent states, “[b]ut
nowhere does the statue require the trial court to make any particular finding of fact before it is
authorized to impose a sentence of life without parole.” Id. The fallacy in this statement, of
course, is that it fails to recognize that, in order to consider and specify an aggravating
circumstance on the record, a trial court necessarily must first make findings as to the presence
and relevance of the aggravating circumstance. Moreover, if the dissent were correct in its
contention that MCL 769.25(6) did not require the sentencing court to make any findings of fact,
then the statute would offend the Eighth Amendment because, as discussed in detail above,
Miller requires an individualized factual inquiry before a juvenile may be sentenced to life
without parole. Furthermore, the dissent’s argument “overlooks Apprendi’s instruction that the
relevant inquiry is one not of form, but of effect.” Ring v Arizona, 536 US 584, 604; 122 S Ct
2428; 153 L Ed 2d 556 (2002) (quotation marks and citations omitted). In effect, by directing
the sentencing court to “consider” the Miller factors and specify the aggravating and mitigating
circumstances on the record, the statute requires the sentencing judge to make findings of fact
before imposing the harsher life without parole sentence.



                                               -19-
could extricate herself from the home environment, the circumstances of the offense, the extent
of the juvenile’s participation in the offense conduct, whether familial and peer pressures may
have affected the juvenile, whether the juvenile might have been charged and convicted of a
lesser offense if not for youthful incompetence, whether the juvenile was able to deal with police
officers or prosecutors, whether the juvenile was able to assist trial counsel, and, importantly,
whether the juvenile exhibits potential for rehabilitation. See Miller, 132 S Ct at 2469. The
dissent’s contention that there exists a means by which all of these factors must be “considered”
without leading to a single finding of fact defies logic.14

         In an attempt to bolster its flawed analysis, the dissent focuses on the word “consider” in
MCL 769.25(6): specifically, the statute provides that, “[a]t the hearing, the trial court shall
consider the factors listed in [Miller]. . . ” (emphasis added). Post at 9-10. The dissent contends
that because the statute directs a court to “consider” the factors as opposed to make findings on
the factors, the statute therefore does not require judicial fact finding to increase a juvenile
homicide offender’s maximum sentence to life without parole. Id. at 9-11. However,
consideration of factors necessarily requires fact finding and the terms are often used
interchangeably in the law. For example, in the context of child custody proceedings, MCL
722.23 sets forth best interest factors “to be considered, evaluated, and determined” by the trial
court (emphasis added), and it is certainly well-settled law that this Legislative mandate requires
a trial court to make factual findings on these factors. See e.g. Bowers v Bowers, 198 Mich App
320, 328, 497 NW2d 602 (1993) (noting that in a child custody case, “[t]he trial court must
consider each of these [best interest] factors and explicitly state its findings and conclusions
regarding each”) (emphasis added). Similarly, in deciding whether to award alimony, “trial
courts should consider. . . ” several spousal support factors, Berger v Berger, 277 Mich App 700,
726-727; 747 NW2d 336 (2008) (emphasis added), and in considering those factors, trial courts
should “make specific factual findings regarding the factors that are relevant to the particular
case.” Myland v Myland, 290 Mich App 691, 695; 804 NW2d 124 (2010) (emphasis added,
quotation marks and citations omitted). Moreover, in the criminal context, “consideration” of
factors implies fact finding. See e.g. People v Cipriano, 431 Mich 315, 335; 429 NW2d 781
(1988) (setting forth factors that a trial court “should consider” in determining whether a
statement is voluntary) (emphasis added); People v Gipson, 287 Mich App 261, 264; 787 NW2d
126 (2010) (noting that a trial court’s factual findings during a voluntariness inquiry are
reviewed for clear error).

       In short, the dissent’s contention that consideration of factors is distinct from making
findings as to those factors is a difference without any real meaning, illustrates the tenuous
nature of the dissent’s flawed analysis, and “ignore[s] reality and the actual text of the statute.”


14
   In addition, the basic assertion of the dissent is that we reach our conclusions based on what
the dissent labels “a false premise.” Post at 1. Specifically, the dissent contends that our opinion
states that “Apprendi and its progeny requires that all facts relating to a sentence must be found
by a jury.” Id. However the dissent fails to cite where that statement is made, we presume
because our opinion does not so state, leading, of course, to the inescapable conclusion that it is
the dissent whose argument is based entirely upon a false premise.


                                               -20-
Potter v McLeary, 484 Mich 397, 438, 774 NW2d 1 (2009) (YOUNG, J., concurring in part and
dissenting in part).

        The state also argues that, unlike in Cunningham, 549 US at 270, where findings of
certain aggravators required the sentencing judge to impose a heightened sentence, in this case,
under MCL 769.25, the sentencing judge has discretion to impose the harsher sentence.
However, merely because the sentencing judge has discretion to impose a harsher penalty does
not save MCL 769.25 from constitutional delinquency because “[w]hether the judicially
determined facts require a sentence enhancement or merely allow it, the verdict alone does not
authorize the sentence.” Blakely, 542 US at 305 n 8. Indeed, in Blakely, the Court rejected
Washington’s attempt to distinguish Apprendi from that state’s sentencing scheme on grounds
that sentencing judges had discretion to impose an exceptional sentence. See Cunningham, 549
US at 283, citing Blakely, 542 US at 305. The Blakely Court explained that judicial discretion
cannot serve as a substitute for the Sixth Amendment, explaining:

               Justice O’Connor argues that, because determinate sentencing schemes
       involving judicial factfinding entail less judicial discretion than indeterminate
       schemes, the constitutionality of the latter implies the constitutionality of the
       former. This argument is flawed on a number of levels. First, the Sixth
       Amendment by its terms is not a limitation on judicial power, but a reservation of
       jury power. It limits judicial power only to the extent that the claimed judicial
       power infringes on the province of the jury. Indeterminate sentencing does not do
       so. It increases judicial discretion, to be sure, but not at the expense of the jury’s
       traditional function of finding the facts essential to lawful imposition of the
       penalty. 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. [Blakely, 542 US at 308-309 (internal citations omitted) (emphasis
       added).]

        In this case, based solely on the facts that were submitted to the jury, defendant was
entitled to a term-of-years sentence. Therefore, because the factual findings required by Miller
and MCL 769.25(6) were not part and parcel to the elements submitted to the jury, these facts
“pertain to whether the defendant has a legal right to a lesser sentence . . . ],” and merely because
the sentencing court has discretion to impose the harsher sentence cannot serve as a substitute for
defendant’s Sixth Amendment right to a jury. Id.

        Finally, in an argument that can best be described as a Herculean attempt at linguistic
gymnastics, the Attorney General argues that the default term-of-years sentence mandated by
MCL 769.25(9) is not actually the default sentence because “[i]f . . . the prosecutor moves for a
life sentence, then the term of years is not the default.” This argument misconstrues the meaning
of the word “default.” “Default” is defined in relevant part as, “a selection made automatically
or without active consideration due to lack of a viable alternative.” Merriam Webster’s
Collegiate Dictionary, (11th ed.) Under MCL 769.25, a term-of-years sentence is automatic and
there is no alternative absent the prosecution’s motion for a life without parole sentence and

                                                -21-
additional findings by the court. Accordingly and as specifically stated in Carp, 496 Mich at
458, a term-of-years is the default sentence.15

        To summarize, the default sentence for a juvenile convicted of first-degree murder under
MCL 750.316 is a term-of-years prison sentence. MCL 769.25 authorizes a trial court to
enhance that sentence to life without parole based on factual findings that were not made by a
jury but rather were found by a judge. In this respect, the statute offends the Sixth Amendment
as articulated in Apprendi and its progeny. In order to enhance a juvenile’s default sentence to
life without parole, absent a waiver,16 a jury must make findings on the Miller factors as codified
at MCL 769.25(6) to determine whether the juvenile’s crime reflects “irreparable corruption”
beyond a reasonable doubt. Accordingly, because defendant’s sentence for first-degree murder
was imposed in a manner that violated the Sixth Amendment, she is entitled to resentencing on
that offense.17

         B. SEVERABILITY AND SENTENCING OF JUVENILES GOING FORWARD

        Although portions of MCL 769.25 are unconstitutional, this does not necessarily render
the statute void in its entirety. Rather, MCL 8.5 provides:

               If any portion of an act or the application thereof to any person or
       circumstances shall be found to be invalid by a court, such invalidity shall not
       affect the remaining portions or applications of the act which can be given effect
       without the invalid portion or application, provided such remaining portions are
       not determined by the court to be inoperable, and to this end acts are declared to
       be severable.

Indeed, “[i]t is the law of this State that if invalid or unconstitutional language can be deleted
from an ordinance and still leave it complete and operative then such remainder of the ordinance
be permitted to stand.” Eastwood Park Amusement Co v East Detroit Mayor, 325 Mich 60, 72;
38 NW2d 77 (1949).


15
   Moreover, as explained above, life without parole can never be the default sentence for
juveniles under Graham and Miller.
16
   See Blakely, 542 US at 310 (noting that “nothing prevents a defendant from waiving his
Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence
enhancements so long as the defendant either stipulates to the relevant facts or consents to
judicial factfinding.”)
17
   Given our resolution of this issue, we need not address the other issues defendant raises on
appeal. We note that we reject defendant’s argument that she should be resentenced in front of a
different judge on remand. Although resentencing before a different judge may be “warranted
by the circumstances” on some occasions, here, defendant has not articulated any circumstances
that warrant resentencing before a different judge. People v Coles, 417 Mich 523, 536; 339
NW2d 440 (1983), overruled in part on other grounds, People v Milbourn, 435 Mich 630; 461
NW2d 1 (1990).


                                               -22-
        In this case, apart from subsection (6)’s provision directing the trial court to consider the
Miller factors, and from subsection (7)’s provision directing the court to articulate aggravating
and mitigating circumstances on the record, MCL 769.25 remains operable in the event that the
findings on the Miller factors are made by a jury beyond a reasonable doubt.18 That is, following
a conviction of first-degree murder and a motion by the prosecuting attorney for a life without
parole sentence, absent defendant’s waiver, the court should impanel a jury19 and hold a
sentencing hearing where the prosecution is tasked with proving that the factors in Miller support
that the juvenile’s offense reflects “irreparable corruption” beyond a reasonable doubt. During
this hearing, both sides must be afforded the opportunity to present relevant evidence and each
victim must be afforded the opportunity to offer testimony in accord with MCL 769.25(8).
Following the close of proofs, the trial court should instruct the jury that it must consider,
whether in light of the factors set forth in Miller and any other relevant evidence, the defendant’s
offense reflects irreparable corruption beyond a reasonable doubt sufficient to impose a sentence
of life without parole. Alternatively, if the jury decides this question in the negative, then the
court should use its discretion to sentence the juvenile to a term-of-years in accord with MCL
769.25(9).

                                       V. CONCLUSIONS

         The Sixth Amendment requires that, other than a prior conviction, any fact that increases
either the floor or the ceiling of a of a criminal defendant’s sentence beyond that which “a judge
may impose solely on the basis of facts reflected in the jury verdict or admitted by defendant,”
must be submitted to a jury and proved beyond a reasonable doubt. Blakely, 542 US at 296. The
default sentence for juveniles convicted of first-degree murder—i.e. the sentence authorized by
the jury verdict—is a term-of-years prison sentence. MCL 769.25 authorizes a trial court to
increase that sentence to life without the possibility of parole contingent on the trial court’s
findings with respect to the Miller factors and any other relevant criteria. Because MCL 769.25
makes an increase in a juvenile defendant’s sentence contingent on factual findings, those
findings must be made by a jury beyond a reasonable doubt. Accordingly, in this case, because
defendant was denied her right to have a jury make the requisite findings under MCL 769.25, she
is entitled to resentencing on her first-degree murder conviction.




18
   The Sixth Amendment does not require the jury to articulate mitigating and aggravating
circumstances, thus subsection (7) is inoperable.
19
   We note that this hearing may be conducted before the jury that determined the defendant’s
guilt in the event that the prosecution moves to impose a life without parole sentence after the
jury verdict, but before the jury is dismissed. See e.g. 18 USC § 3539(b) (providing that the
sentencing hearing in a federal death penalty case may be conducted before the jury that
determined the defendant’s guilt, or, in certain circumstances, before a jury impaneled “for the
purpose of” the sentencing hearing). Alternatively, the court may impanel a new jury for the
purposes of the sentencing hearing in accord with the court rules governing impaneling a jury for
the guilt phase of the proceeding. See MCR 6.410; MCR 6.412.


                                                -23-
        Vacated and remanded for resentencing consistent with this opinion. Jurisdiction is not
retained.



                                                          /s/ Stephen L. Borrello
                                                          /s/ Joel P. Hoekstra




                                             -24-
