            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 19, 2019
              Plaintiff-Appellee,

v                                                                  No. 341060
                                                                   Wayne Circuit Court
LEANDER KRIEGG FOSTER,                                             LC No. 94-006481-02-FC

              Defendant-Appellant.


Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ.

PER CURIAM.

       In 1994, when defendant was 16 years old, he was convicted by a jury of first-degree
premeditated murder, MCL 750.316(1)(a), felony murder, MCL 750.316(1)(b), armed robbery,
MCL 750.529, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. Defendant was sentenced to life imprisonment without parole for both his first-
degree murder and felony murder convictions, life imprisonment for the armed robbery
conviction, and two years for the felony-firearm conviction. Defendant appealed as of right to
this Court, and this Court vacated the felony-murder conviction and sentence, but affirmed his
other convictions and sentences. People v Foster, unpublished per curiam opinion of the Court
of Appeals, issued July 22, 1997 (Docket No. 184162).

       After the United States Supreme Court’s decision in Miller v Alabama, 567 US 460; 132
S Ct 2455; 183 L Ed 2d 407 (2012), defendant filed a motion for relief from judgment in the trial
court contending that his mandatory life sentence was unconstitutional under Miller and that he
was entitled to resentencing. The trial court denied defendant’s motion and this Court denied
defendant’s application for leave to appeal. People v Foster, unpublished order of the Court of
Appeals, issued March 4, 2015 (Docket No. 324440). Following the United States Supreme
Court’s decision in Montgomery v Louisiana, 577 US ___; 136 S Ct 718; 193 L Ed 2d 599
(2016), the Michigan Supreme Court, in lieu of granting leave to appeal, vacated defendant’s
sentence for his first-degree murder conviction and remanded the case to the trial court for
resentencing. People v Foster, 499 Mich 877 (2016). After the prosecution filed a memorandum
with the trial court seeking a term of years rather than life without parole, defendant was
resentenced to 33 years to 60 years for his first-degree murder conviction. Defendant now
appeals as of right. We affirm.



                                      I. RESENTENCING

        Defendant first argues that the trial court failed to adequately consider the mitigating
effect of the factors outlined in Miller and People v Wines, 323 Mich App 343; 916 NW2d 855
(2018), when it resentenced defendant for his first-degree murder conviction; thus, a
constitutionally disproportionate sentence was imposed. We disagree.

       “This Court reviews sentencing decisions for an abuse of discretion.” People v Skinner,
502 Mich 89, 131; 917 NW2d 292 (2018). “[A] given sentence can be said to constitute an
abuse of discretion if that sentence violates the principle of proportionality, which requires
sentences imposed by the trial court to be proportionate to the seriousness of the circumstances
surrounding the offense and the offender.” Id. at 131-132, quoting People v Milbourn, 435 Mich
630, 636; 461 NW2d 1 (1990). The trial court abuses its discretion when its decision falls
outside the range of reasonable and principled outcomes. People v Dixon-Bey, 321 Mich App
490, 533; 909 NW2d 458 (2017). “A trial court necessarily abuses its discretion when it makes
an error of law.” People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013).
Constitutional issues and matters of statutory interpretation are reviewed de novo. People v
Harris, 499 Mich 332, 342; 885 NW2d 832 (2016).

        In Miller, the United States Supreme Court held that a mandatory life sentence without
the possibility of parole for a juvenile offender was unconstitutional. Miller, 567 US at 465. In
response to Miller, the Michigan Legislature enacted MCL 769.25a, which came into effect
when the Supreme Court, in Montgomery, held that Miller applied retroactively. Wines, 323
Mich App at 347. MCL 769.25a provides that “prosecutors may seek a reimposition of life-
without-parole imprisonment if they file a motion within a defined period of time.” Id. If the
prosecution does not file such a motion, then 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.” MCL 769.25a(4)(c).

        MCL 769.25a does not specify any factors or special considerations that the court must
consider during resentencing. Wines, 323 Mich App at 348. Miller, however, outlined several
factors that the court must consider when sentencing a juvenile offender to life imprisonment
without the possibility of parole. People v Garay, 320 Mich App 29, 50; 903 NW2d 883 (2017),
overruled on other grounds by Skinner, 502 Mich 89 (2018). Those factors are:
      (1) The defendant’s “chronological age and its hallmark features,” including any
“immaturity, impetuosity, and failure to appreciate risks and consequences.”

       (2) The defendant’s “family and home environment,” including any brutality or
dysfunctionality in that environment and the possibility that the defendant cannot extricate
himself or herself from that situation.



                                                -2-
        (3) The circumstances of the crime, including the extent of the defendant’s participation
in the crime, the way that “familial and peer pressures” may have affected the defendant, and the
possibility that the defendant may have been convicted of a lesser offense “if not for the
incompetencies associated with youth,” such as the defendant’s inability to deal with police
officers, the prosecution, or attorneys.

         (4) The possibility of rehabilitation. Miller, 567 US at 477-478.
        Those factors are applicable when the prosecution seeks to resentence a defendant to life
imprisonment without the possibility of parole. Garay, 320 Mich App at 50. However, when the
prosecution requests that a court resentence a defendant to a term of years, the trial court has
different fact-finding responsibilities. Wines, 323 Mich App at 347-352. The Wines Court held
that “there is no constitutional mandate requiring the trial court to specifically make findings as
to the Miller factors except in the context of a decision whether to impose a sentence of life
without parole.” Id. at 352 (emphasis in original). However, the Court also concluded that
“when sentencing a minor convicted of first-degree murder, when the sentence of life
imprisonment without parole is not at issue, the court should be guided by a balancing of the
Snow1 objectives[,]” which includes a consideration of the “attributes of youth, such as those
described in Miller.” Id. The Snow objectives are the “(1) reformation of the offender, (2)
protection of society, (3) punishment of the offender, and (4) deterrence of others from
committing like offenses.” Id. at 351, citing Snow, 386 Mich at 592.

       In this case, the prosecution notified the trial court that it was seeking a sentence for a
term of years rather than a reimposition of defendant’s life sentence without the possibility of
parole. Thus, the trial court was not constitutionally compelled to make specific factual findings
regarding the Miller factors during defendant’s resentencing. Wines, 323 Mich App at 352.
Instead, the court must have considered the Snow objectives and the attributes of youth. Id.

        In addressing defendant’s attributes of youth at the time of the crime, the court noted that
defendant was a 16-year-old minor at the time of the crime who had been influenced by a
“greedy and . . . evil” relative. The court also considered that defendant had shown a capacity to
grow and mature, as evidenced by the fact that prison counselors recognized that “he has been a
help to other inmates” and that “he has been a good worker . . . .” The court also addressed the
presentence investigation report with the parties, and it had detailed defendant’s “considerable
growth, maturity, and wisdom[]” and the practical steps that defendant has taken to improve
himself, such as receiving his GED. Thus, the court properly considered any mitigating
“attributes of youth” such as those described in Miller. See Wines, 323 Mich App at 352.

        In addressing whether the court properly addressed the Snow objectives, we first note that
the Wines decision was issued after the trial court resentenced defendant in this case, thus, the
trial court never explicitly mentioned the Snow objectives. However, notwithstanding that fact,
the trial court still found facts that are applicable to the factors outlined in Wines and Snow,
demonstrating that the court was still guided by the objectives referenced in Snow. Regarding


1
    People v Snow, 386 Mich 586; 194 NW2d 314 (1972).


                                                 -3-
the possibility of defendant’s reformation, the court found that defendant had an ability to grow
and mature, evidenced by recognition from institutional counselors that defendant had helped
younger inmates and had been a good worker while in prison. That finding demonstrates that the
court believed that it was possible for defendant to be rehabilitated. Regarding the protection of
society, the punishment for the crime, and deterrence for committing a similar offense, the court
found that defendant knew that his actions were wrong and that “the law and the community
cannot accept [defendant’s] behavior” in committing the crime. It also noted that “the facts of
this case . . . are in fact heinous and have brought heartache not only for the family but also
throughout the community.” Those findings indicate that the trial court wanted to appropriately
punish defendant’s actions and protect the community from similar offenses. Thus, the trial
court balanced the need to punish defendant and protect the community with the mitigating
attributes of defendant’s youth and the real possibility that defendant could be rehabilitated. The
court resentenced defendant to a minimum of 33 years. That sentence is in the middle of the
statutory range, indicating again that the trial court balanced the factors described in Miller and
Snow. See MCL 769.25a(4)(c). Defendant’s first-degree murder sentence is proportionate to the
seriousness of the circumstances surrounding the offense and the offender, and the trial court
considered those circumstances on the record. Therefore, because that sentence does not fall
outside the range of reasonable and principled outcomes, the trial court did not abuse its
discretion in resentencing defendant.

                     II. DEFENDANT’S ARMED ROBBERY SENTENCE

       Defendant also contends that he is entitled to resentencing on his armed robbery
conviction because a court is required to resentence a defendant on all sentences when a
sentencing error affects multiple sentences, the sentence is based on the same mistake or
misconception of law as his first-degree murder sentence, and the sentence interferes with
defendant’s opportunity for a meaningful opportunity to obtain release. We disagree.

         In general, “[q]uestions of law are reviewed de novo.” People v Smith, 502 Mich 624,
631; 918 NW2d 718 (2018). Likewise, “[t]he proper interpretation and application of statutes
and court rules is a question of law, which this Court reviews de novo.” People v Comer, 500
Mich 278, 287; 901 NW2d 553 (2017). The plain language of any statute or court rule controls,
and, if the language is unambiguous, the statute or court rule must be enforced as written. Id.

        “When an appellate court remands a case with specific instructions, it is improper for a
lower court to exceed the scope of the order.” People v Russell, 297 Mich App 707, 714; 825
NW2d 623 (2012). Additionally, when an order from the Michigan Supreme Court controls the
scope of the trial court’s actions, that order also controls the scope of this Court’s review. Wines
323 Mich App at 358-359. If “[n]either the remand order nor the referenced statutes provide for
resentencing on [a defendant’s] other convictions,” the trial court must conclude that it has no
authority to resentence a defendant for his or her other convictions. Id. at 359. See also People v
Holder, 483 Mich 168; 767 NW2d 423 (2009); Russell, 297 Mich App at 715.

       MCR 6.429 provides the trial court with the ability to correct an invalid sentence. MCR
6.429(A). If a defendant has filed a claim of appeal, defendant may move to correct an invalid
sentence through a motion to correct an invalid sentence under MCR 7.208(B) or a timely
motion for remand under MCR 7.211(C)(1). MCR 6.429(B)(2). Otherwise, the defendant may

                                                -4-
seek relief pursuant only to a motion for relief from judgment filed in compliance with MCR
Subchapter 6.500. MCR 6.429(B)(4); Comer, 500 Mich at 296. Furthermore, MCL 769.25a
only allows a trial court to resentence a defendant for a mandatory life without parole sentence
previously vacated by Miller and Montgomery.

        Under Miller and Montgomery, a defendant convicted as a juvenile must be afforded
“some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.” People v Williams, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No.
339701); slip op at 4, quoting Miller, 567 US at 479. A life sentence with the possibility of
parole satisfies that mandate from Miller, meaning that a sentence that has the possibility of
parole affords a defendant a “meaningful opportunity to obtain release.” Williams, ___ Mich
App at ___; slip op at 4. Furthermore, speculation that the original trial court sentenced a
defendant to a life sentence with parole because it believed that the defendant would already
spend his life in prison is insufficient to establish “inaccurate information” or a “misconception
of law” that requires resentencing. Id. at ___; slip op at 5. If one of a defendant’s sentences is
found to be invalid, that does not necessarily mandate that the defendant’s other sentences are
invalid. Id. at ___; slip op at 6.

        Defendant is not entitled to resentencing on his armed robbery conviction because neither
the Michigan Supreme Court’s remand order nor the applicable statute or court rule provide for
resentencing on defendant’s other convictions. On March 29, 2016, the Michigan Supreme
Court issued an order stating: “we VACATE the sentence of the Wayne Circuit Court for the
defendant’s first-degree murder conviction, and we REMAND this case to the trial court for
resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a.” Foster, 499 Mich
877 (emphasis in original). That order vacated only defendant’s first-degree murder sentence.
Absent an applicable provision in a statute or court rule, the trial court may not exceed the scope
of that order. Wines, 323 Mich App at 359; Russell, 297 Mich App at 714. Defendant was
sentenced to life with the possibility of parole for his armed robbery conviction, thus, that
sentence was not affected by Miller or Montgomery, and it does not fall within the scope of MCL
769.25a. MCL 769.25a(2); Miller, 567 US at 465; Montgomery, 136 S Ct at 723-724.
Therefore, the applicable statute in this case, MCL 769.25a, does not provide the trial court with
the ability to resentence defendant for any conviction other than his first-degree murder
conviction. Finally, defendant cannot satisfy either court rule outlined in MCR 6.429(B)(2)
because defendant has not timely filed a motion to correct an invalid sentence under MCR
7.208(B) or a motion for remand under MCR 7.211(C)(1). See MCR 6.429(B)(2). Thus,
defendant may only seek relief under a motion for relief from judgment under MCR Subchapter
6.500. See MCR 6.429(B)(4). The trial court correctly denied defendant’s motion to resentence
him for his armed robbery conviction because defendant has not followed the correct procedure
to obtain relief from judgment.

       Defendant’s contention that he is entitled to resentencing on his armed robbery
conviction due to a misconception of law or that he does not have a meaningful opportunity to




                                               -5-
obtain release is without merit. As this Court held in Williams,2 defendant has a “meaningful
opportunity to obtain release” because defendant may obtain parole for his armed robbery
conviction. Williams, ___ Mich App at ___; slip op at 4. Additionally, defendant merely
speculates that the trial court may have sentenced defendant to a shorter sentence if not for his
now-invalid sentence of life without the possibility of parole. That speculation is insufficient to
establish “inaccurate information” or a “misconception of law.” Id. at ___; slip op at 5. The fact
that defendant’s first-degree murder conviction was later held to be invalid does not
automatically invalidate defendant’s sentence for armed robbery. Id. at ___; slip op at 6.

        Defendant cites an order of the Michigan Supreme Court, People v Gunn, ___ Mich ___;
919 NW2d 402 (2018), as rationale for why he should be resentenced for his armed robbery
conviction, but that order is distinguishable from this case. In Gunn, the defendant received an
upward departure sentence for his second-degree arson conviction, but the Supreme Court
vacated that sentence because the trial court relied on “inaccurate information” in sentencing the
defendant. Id. The trial court explicitly stated that it imposed that upward departure sentence
because the defendant’s other sentences were already that high. Id. Once the defendant was
resentenced for his other convictions, the Supreme Court held that the trial court relied on
“inaccurate information” in explicitly making that connection, thus, requiring the defendant to be
resentenced for his arson conviction. Id. That is distinguishable from this case where defendant
merely speculates that the trial court linked the two sentences. Speculation is insufficient to
establish the existence of “inaccurate information.” Williams, ___ Mich App at ___; slip op at 5.
For those reasons, in addition to the fact that defendant has not followed the proper procedure,
defendant is not entitled to resentencing on his armed robbery conviction.

       Affirmed.



                                                            /s/ Mark J. Cavanagh
                                                            /s/ Stephen L. Borrello
                                                            /s/ James Robert Redford




2
  We also note that, in Williams, the defendant filed a motion for relief from judgment pursuant
to MCR Subchapter 6.500, which, procedurally, is what defendant should have done in this case
to properly challenge his armed robbery sentence. Williams, ___ Mich App at ___; slip op at 2.


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