                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  FOR PUBLICATION
                                                                  July 21, 2016
                Plaintiff-Appellee,

v                                                                 No. 325741
                                                                  Genesee Circuit Court
KENYA ALI HYATT,                                                  LC No. 13-032654-FC

                Defendant-Appellant.


Before: SHAPIRO, P.J., and MARKEY, METER, BECKERING, STEPHENS, M.J. KELLY, and RIORDAN,
JJ.

METER, J. (concurring in part and dissenting in part).

       I conur in parts I, II, and III of the majority opinion. I would not, however, vacate
defendant Hyatt’s sentence and remand this case for resentencing.

       The Milbourn1 concept of proportionality provides an adequate framework for review of
sentences such as the one imposed in the present case. The sentencing court explicitly
mentioned and adhered to the principle of proportionality. In addition, the sentencing court, as
noted by the panel in People v Perkins, ___ Mich App ___; ___ NW2d ___ (2016) (Docket Nos.
323454; 323876; 325741); slip op at 22, explicitly took the Miller factors into consideration.

       The majority opinion focuses on the following statement by a psychologist regarding
defendant Hyatt’s capacity for change: “[I]f I were to predict in five years, it would not be
possible.”2 This statement, however, was merely one aspect of the testimony and other evidence
appropriately taken into consideration by the sentencing court. In addition, while the court did
not explicitly use the term “rare” as employed in Miller v Alabama, 576 US ___; 132 S Ct 2455,
2469; 183 L Ed 2d 407 (2010), and Montgomery v Louisiana, ___ US ___; 136 S Ct 718, 733;
193 L Ed 2d (2016), the record makes clear that the court applied the applicable concepts from




1
    People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
2
 The psychologist further stated that she simply could not predict whether defendant Hyatt
would change.


                                               -1-
Miller in finding that a sentence of life without parole was appropriate despite defendant Hyatt’s
status as a juvenile.

        Moreover, the pertinent circumstances—including that defendant Hyatt was the actual
shooter, had a history of assaultive behavior, appeared to a counselor to have no conscience,
showed no remorse or concern over the crimes, was “disconnected from societal morals and
mores,” had “serious maladjustment,” and was 17 years old at the time of the offenses—clearly
supported the sentence. See, generally, Miller, 132 S Ct at 2467-2468. The sentencing court
specifically noted that defendant Hyatt’s age was not a mitigating factor in this particular case,
and the court adequately set forth evidence showing that defendant Hyatt’s potential for
rehabilitation was low. In Miller, id. at 2468, the Supreme Court stated that a mandatory
sentence of life without parole “disregards the possibility of rehabilitation even when the
circumstances most suggest it.” Here, the circumstances did not “most suggest it.”

       I find no violation of the principle of proportionality and no need to remand this case.
The sentencing procedure was constitutional and the sentence was proportionate to the
circumstances surrounding the offense and the offender.

       I would affirm the sentence.


                                                            /s/ Patrick M. Meter
                                                            /s/ Michael J. Kelly
                                                            /s/ Michael J. Riordan




                                               -2-
