            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 18, 2019
               Plaintiff-Appellee,

v                                                                  No. 341970
                                                                   Oakland Circuit Court
BENNIE L. LAYTON,                                                  LC No. 1996-143720-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and METER and GLEICHER, JJ.

GLEICHER, J. (dissenting).

        In a quartet of cases commencing with Roper v Simmons, 543 US 551; 125 S Ct 1183;
161 L Ed 2d 1 (2005), and culminating in Montgomery v Louisiana, __ US __; 136 S Ct 718;
193 L Ed 2d 599 (2016), the United States Supreme Court established the framework guiding a
court sentencing a juvenile convicted of a heinous crime. Youth is a mitigating factor because its
“signature qualities,” including “impetuousness and recklessness,” subside over time. Roper,
543 US at 570 (cleaned up).1 Juveniles have “lessened culpability” due to their “lack of
maturity,” “underdeveloped sense of responsibility,” and susceptibility to the negative influence
of peers. Graham v Florida, 560 US 48, 68; 130 S Ct 2011; 176 L Ed 2d 825 (2010) (cleaned
up). They also have a “greater capacity for change,” Miller v Alabama, 567 US 460, 465; 132 S
Ct 2455; 183 L Ed 2d 407 (2012) (cleaned up), which means that irreversible appraisals of a
juvenile offender’s potential for rehabilitation violate the Eighth Amendment. See Graham, 560
US at 74.

       How does a sentencing judge put these precepts into practice when the task is
resentencing, and the offender to be resentenced is a 40-year-old adult who has spent the


1
  This dissent uses the parenthetical (cleaned up) to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as
brackets, alterations, internal quotation marks, and unimportant citations have been omitted from
the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).


341970/LAYTON
majority of his life in prison? In accord with this Court’s opinion in People v Wines, 323 Mich
App 343, 352; 916 NW2d 855 (2018), lv pending, the majority acknowledges that the judge must
consider “the distinctive attributes of youth” when crafting a proportionate sentence. That
concept is unassailable, given the logic of Miller and Montgomery.

       Our Legislature made its own proportionality judgment post-Miller. A resentencing court
must impose a sentence 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). Here, the
resentencing court (which had not presided over Layton’s 1996 trial) imposed a minimum
sentence of 35 years. The court justified this sentence by revisiting the circumstances of the
murder, rather than by giving any serious or meaningful consideration to mitigation evidence. I
would remand for a resentencing hearing tethered to the precepts articulated in Miller and
Montgomery.

                                                  I

       In January 1996, James Groppi was shot and killed in a bowling alley parking lot during
a robbery. Layton drove the getaway car. The other four occupants of the vehicle accosted Mrs.
Groppi as she left the bowling alley and attempted to steal her purse. One struck Mrs. Groppi in
the mouth with a handgun. When James Groppi came to his wife’s aid, Layton’s half-sister,
Shameka Jackson, shot him. The robbers ran back to the vehicle and Layton drove away.

       The police stopped the car not far from the bowling alley. Layton told the officers that he
did not know that the others planned to commit a robbery, although he admitted his awareness
that one had a gun. Layton continues to maintain that he did not know that his codefendants
intended to committed a crime that evening, and did not realize that Groppi had been killed when
he drove the car from the scene. In his 2017 “description of the offense,” Layton wrote:

       I didn’t know what was happening. I had no idea if they shot at someone or was
       being shot at. Either way, at that moment I had a choice to make and
       unfortunately I made the wrong one. One that I’ve been living with for the past
       22 years. Even though I had no knowledge of the crime my co-defendants
       committed, I still broke the law by driving them away from the crime scene.

         The resentencing court began its explanation for the sentence it imposed by rejecting
Layton’s claim that he was unaware that a robbery had been planned. Based on its review of the
trial transcripts, the court determined that Layton “knew that the plan was to go and rob
someone.” The court continued, “I don’t believe that you or maybe anyone else had the plan to
kill someone but certainly that resulted . . . in the commission of the robbery that was planned.”
Based on the way the car was parked, the court continued, Layton must have known that a
robbery was contemplated. “There was certainly a plan to rob someone and . . . the fact that now
20 some years later that that still isn’t something that . . . is at least acknowledged is troubling to
me,” the court declared.

       The court then shifted its focus to Layton’s juvenile record, which included a 1992
conviction for receiving and concealing, additional charges in 1993 including assault and battery,
carrying a concealed weapon, and another receiving and concealing offense, and confinement in

                                                 -2-
juvenile facilities on at least two different occasions. “I certainly don’t place you in the same
category as a 15 year old that didn’t have anything on his record,” the court continued.

        Layton’s institutional record also troubled the court. “I counted every single misconduct
individually,” the court disclosed, and totaled them at 112. Many were for minor offenses, but
some involved destruction of property, gambling, possession of forged documents, and other
serious crimes. Some of the misconducts occurred in 2017, at a time when Layton knew he was
going to be resentenced.

       The court stated that consideration of the Miller factors was not “mandatory,” but
claimed that it “look[ed] at them” nonetheless. In my view, the court’s explanation for Layton’s
sentence belies that it applied the teachings of Miller:

       Certainly the circumstances of the offense . . . couldn’t have occurred without you
       driving everyone there. I think you indicated at some point or I read something
       that indicated you were the only one with a license of the group, so they certainly
       wouldn’t - - or if they did drive they wouldn’t have been driving legally - - but
       you drove everyone there and you certainly helped everyone escape. So it
       certainly could not have occurred without your assistance . . . . I don’t buy the
       statements of not knowing what was occurring or what was going to occur. You
       went there with everyone else knowing that a robbery was going to occur. That’s
       what was planned. You were going to jump someone[;] it just happened to be Mr.
       and Mrs. Groppi that night.

               In terms of your age, your brother who was 15 was sentenced through the
       juvenile system . . . and there’s a big difference between the 15 year old that your
       brother was and the 17 year old and one month old that you were . . . certainly
       with your past criminal history and contacts with law enforcement and the
       juvenile system . . . I don’t consider you the same as that 15 year old and you
       certainly shouldn’t be considered the same.

                I did go through the psychological evaluation. I did note that in reviewing
       the file there was no known mental issues at the time you committed the offense.
       There was no notation of any mental issues at that time . . . . I do make note that
       you were diagnosed in July of 2017 with being bipolar . . . and I do make a
       notation that you . . . sought psychological services starting in 2005 . . . . I’ve
       looked at what your attorney provided in terms of your family and your home
       environment in terms of your father and . . . his role in your life and in your
       family’s life. I do look at the potential for rehabilitation as I indicated you have a
       juvenile history that started at age . . . 13 and you were in juvenile custody up
       until one month before this incident . . . . [C]ertainly that gives me some
       information . . . as well as your institutional history and your lengthy misconduct
       history.

                . . . I also have to look at the deterrence element and part of
       sentencing . . . whatever sentencing it is and whatever factors you’re lookin’ at,
       there is a deterrence element, there is a punishment element, there is an element of

                                                -3-
       protection of society. So far all the reasons I’ve indicated and everything that I
       have reviewed, certainly I wasn’t there for this trial but I have certainly done
       everything I can to review everything possible including the trial transcripts to
       know everything there is to know and having considered everything that I’ve
       looked at - - I also take into consideration your role in this offense as compared to
       the role of the other offenders in this offense and I know and take into
       consideration that certainly even though you were not . . . the person that fired the
       gun obviously you were convicted and under an aiding and abetting theory you’re
       treated the same in the sense that you are responsible for all those actions as well.
       But I do know and I do take into account the participation and the actions of all
       the other Defendants . . . compared to you - - your participation and your actions
       in fashioning this sentence.

        This elucidation of the information the court used in resentencing Layton demonstrates
that the court concentrated on the components of his culpability rather than examining the
mitigating factors of youth. While the court was entitled to conclude that Layton knew that an
armed robbery was planned and assisted by driving the getaway car, those determinations do not
answer the questions about Layton that should be asked. Layton’s guilt for a terrible crime is a
given—that is why he was convicted of felony murder and sentenced to life without parole. And
the court’s narrow and negative interpretation of a much fuller record omits facts that are
relevant to the Miller inquiry.

                                                 II

        In Miller, 567 US at 476 (cleaned up), the Supreme Court observed that youth “is a time
of immaturity, irresponsibility, impetuousness, and recklessness. It is a moment and condition of
life when a person may be most susceptible to influence and to psychological damage. And its
signature qualities are all transient.” The Court summarized that the “hallmark features” of
youth, now known as the Miller factors, include “immaturity, impetuosity, and failure to
appreciate risks and consequences,” “the family and home environment that surrounds him—and
from which he cannot usually extricate himself—no matter how brutal or dysfunctional,” “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,” that a youthful offender “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 “the possibility of rehabilitation[.]”
Id. at 477-478.

       Layton’s resentencing counsel prepared a lengthy sentencing memorandum discussing
the crime, Layton’s family history, his prison record, and the report of a psychologist who
examined Layton in anticipation of the resentencing. The presentence investigation report
submitted by the probation department contains some of the same information. These sources
provide mitigation evidence that the resentencing court ignored.

        Layton grew up in an abusive home. His father, an alcoholic, often severely beat Layton
and his siblings with his fists, a belt, and other implements. Layton saw his father hit his mother,
knocking her down. As a child, Layton stayed away from his home as much as possible to avoid

                                                -4-
his father’s unpredictable rages. His younger half-brother, a coparticipant in the killing of James
Groppi, became a state ward and accrued two more felonies as an adult.

        Layton finished only the seventh grade. In distancing himself from his home
environment, he befriended older teenagers and joined them in criminal activities. As the
resentencing court recited, Layton was prosecuted for receiving and concealing stolen property,
joy-riding, and falsifying documents. He was housed in the Maxey Boys’ Training School from
age 15 to age 17. There he obtained his GED, qualified as a life guard, and enrolled in a Delta
Community College program scheduled to begin just days after the robbery. After his release
from Maxey and while back at home with his siblings and dysfunctional family, Layton
reentered the world of crime.

        Layton aided and abetted a murder, rather than planning or executing it. Even assuming
that he knew an armed robbery was planned, no evidence supports that he anticipated that
someone would die. See Graham, 560 U S at 69 (“[W]hen compared to an adult murderer, a
juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”).
And although Layton’s incarceration history is pertinent and distressing, its creation is not as
one-dimensional as the resentencing court’s portrayal suggests.

       As the resentencing court noted, Layton accumulated numerous misconduct citations
during the 22 years he has spent in prison. The aspect of Layton’s prison history that the court
ignored is equally powerful. While in custody, Layton was transferred 14 times. Due to his
youth, he was frequently bullied and sexually harassed by other prisoners. At his request, he was
placed in administrative segregation more than once. During those periods Layton did well,
garnering praise from prison officials. By 2014, his security classification had decreased to
Level II, the lowest possible for an inmate serving a term of life without parole.

       The psychological assessment performed at his counsel’s request helps to explain
Layton’s difficulty in conducting himself appropriately in the general prison population. After
years of depression and suicidal ideation for which Layton repeatedly and unsuccessfully sought
treatment, Layton’s psychiatric problems were finally addressed. When he was placed in a
Residential Treatment Program and received regular therapy, Layton did not earn any
misconducts. Unfortunately, Layton was removed from that program because he was attacked
by other participants.

       In June 2017, Layton was diagnosed with a bipolar disorder and placed on antipsychotic
medications. Initially, he took the medication only inconsistently. He began a new medication
on October 2017, and has functioned well since then. The psychologist who recently evaluated
him opined that Layton needs consistent psychiatric treatment and will continue to need
treatment when he is paroled.

                                                III

       The principles that guide proportional sentencing in our state are: “(a) the reformation of
the offender, (b) protection of society, (c) the disciplining of the wrongdoer, and (d) the
deterrence of others from committing like offenses.” People v Snow, 386 Mich 586, 592; 194
NW2d 314 (1972). Roper, Graham, Miller, and Montgomery instruct that the proportionality

                                                -5-
equation must incorporate additional tenets when a court sentences a juvenile convicted of
murder.

         Children are different for several reasons relevant to proportionality. Because a
juvenile’s character and identity are not well formed, “it is less supportable to conclude that even
a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” Roper,
543 US at 570. This means that the penological goal of “discipline” or retribution must be
assessed differently when sentencing a child, or resentencing an adult whose crime was
committed as a juvenile. “The susceptibility of juveniles to immature and irresponsible behavior
means their irresponsible conduct is not as morally reprehensible as that of an adult.” Id.
(cleaned up). A child’s “vulnerability and comparative lack of control” over a situation “mean
juveniles have a greater claim than adults to be forgiven for failing to escape negative influences
in their whole environment.” Id.

               Roper and Graham emphasized that the distinctive attributes of youth
       diminish the penological justifications for imposing the harshest sentences on
       juvenile offenders, even when they commit terrible crimes. Because the heart of
       the retribution rationale relates to an offender’s blameworthiness, the case for
       retribution is not as strong with a minor as with an adult. [Miller, 567 US at 472,
       (cleaned up).]

A resentencing court must do more than merely acknowledge an offender’s youth at the time his
crime was committed. Miller requires that a court apply the core principles that guided that
decision.

        When a resentencing court fails to consider the Snow factors through the lens of Miller
and Montgomery, it abuses its discretion. And that is precisely what happened here. Although
the resentencing court begrudgingly acknowledged Layton’s youth, it made no effort to apply the
Miller factors. Instead, the court retried the underlying case, reconfirmed Layton’s guilt, and
resentenced him based primarily on his conduct at that time.

        The resentencing court failed to understand or recognize that Layton’s culpability for the
crime was mitigated by his youth, and that he aided and abetted the shooting rather than acting as
a principal. The resentencing court “made note” of Layton’s abusive childhood and its
consequences, but these factors never entered its sentencing equation. Nor did the court grapple
with the effect of Layton’s psychiatric illness on his conduct in prison, or acknowledge that
despite his illness, Layton managed to achieve a low security status. The court made no mention
of any of the positive aspects of Layton’s life, including his completion of multiple prison
programs and his steady employment in various areas of various prisons. Nor did the court
substantively address the non-Miller considerations—protection of society and deterrence.

       The resentencing court’s focus on the circumstances surrounding the crime perverts the
proportionality review mandated by Michigan law, Miller, and Montgomery. Given the
Legislature’s identification of a minimum sentencing range of 25 to 40 years, I believe a
sentence of 35 years is grossly disproportionate. The resentencing court’s analysis failed to take
into account the characteristics of Layton’s life at the time he committed the crime, and the


                                                -6-
circumstances of his imprisonment. I would remand for resentencing guided by the
proportionality principles governing resentencing in this state, as modified by Miller.



                                                     /s/ Elizabeth L. Gleicher




                                          -7-
