                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 8, 2016
               Plaintiff-Appellee,

v                                                                  No. 327336
                                                                   Oakland Circuit Court
QUAMAIN CONAY LEAK,                                                LC No. 2010-233891-FC

               Defendant-Appellant.


Before: SAAD, P.J., and JANSEN and M. J. KELLY, JJ.

PER CURIAM.

        On April 29, 2011, a jury convicted defendant of first-degree felony murder, MCL
750.316(1)(b), armed robbery, MCL 750.529, and conspiracy to commit armed robbery, MCL
750.529(c) and MCL 750.157a. The trial court originally sentenced defendant to life
imprisonment without parole for the first-degree felony murder conviction, 20 to 60 years’
imprisonment for the armed robbery conviction, and 20 to 60 years’ imprisonment for the
conspiracy to commit armed robbery conviction. On remand from this Court, defendant, who
was a minor at the time he committed the crimes in issue, was resentenced in light of the recently
decided case, Miller v Alabama, 576 US ___; 132 S Ct 2455, 2469; 183 L Ed 2d 407 (2012). At
resentencing, defendant was again sentenced to life without parole for the first-degree felony
murder conviction. After another appeal, this Court again remanded for resentencing because of
the recently enacted MCL 769.25. At this second resentencing, defendant was again sentenced
to life without parole for the first-degree felony murder conviction. Defendant appeals his latest
sentence, and for the reasons provided below, we affirm.

       Defendant contends that his life-without-parole sentence is unconstitutional under the
Sixth Amendment because MCL 769.25 requires a judge to engage in fact-finding instead of a
jury when making the determination of whether to impose a life sentence. We review this
unpreserved issue for plain error affecting defendant’s substantial rights. People v Kowalski, 489
Mich 488, 505; 803 NW2d 200 (2011).

       In response to the United States Supreme Court decision in Miller, the Michigan
Legislature enacted MCL 769.25, which states in pertinent part the following:

       (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) if either of
       the following circumstances exists:
                                               -1-
       (a) The defendant is convicted of the offense on or after [March 4, 2014].

       (b) The defendant was convicted of the offense before [March 4, 2014]
       and either of the following applies:

               (i) The case is still pending in the trial court or the applicable time
               periods for direct appellate review by state or federal courts have
               not expired.

               (ii) On June 25, 2012 the case was pending in the trial court or the
               applicable time periods for direct appellate review by state or
               federal courts had not expired.

(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.]

(3) . . . . If the prosecuting attorney intends to seek a sentence of imprisonment
for life without the possibility of parole for a case described in subsection (1)(b),
the prosecuting attorney shall file the motion within 90 days after [March 4,
2014]. 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, 132 S Ct 2455], 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.

                                       * * *


                                         -2-
       (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.

        To support his claim that his sentence under MCL 769.25 is unconstitutional, defendant
relies on this Court’s decision in People v Skinner, 312 Mich App 15; 877 NW2d 482 (2015). In
Skinner, this Court held that because the “default” sentence under the statutory scheme is a term
of years, the trial court’s decision to sentence to life without parole necessarily involves judicial
fact-finding that violates the Sixth Amendment principles enunciated in Apprendi v New Jersey,
530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and its progeny, including our Supreme
Court’s recent ruling in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). Skinner, 312
Mich App at 58-59. However, Skinner has been effectively overruled by a conflict panel of this
Court. See MCR 7.215(J). Indeed, the main holding of Skinner is no longer controlling, as this
Court held in People v Hyatt, ___ Mich App ___; ___ NW2d ___ (Docket No. 325741, issued
July 21, 2016), that “a judge, not a jury” is to determine whether a person who was a minor at the
time he committed the crime is to be sentenced to life in prison without the possibility of parole,
and any findings by the judge in relation to MCL 769.25 do not violate a defendant’s Sixth
Amendment rights. Id. at ___, ___ (slip op at 1, 21). The Hyatt Court explained that MCL
769.25 “did not alter the statutory maximum sentence that may be imposed based solely on the
jury’s verdict” and that it did not “make the imposition of the statutory maximum dependent on
any particular finding of fact.” Id. at ___ (slip op at 15). Hence, MCL 769.25 does not violate
the Sixth Amendment, id. at ___ (slip op at 21), and defendant has not established any plain
error.

        Defendant also contends that the trial court abused its discretion when it sentenced him to
a life-without-parole sentence rather than a term-of-years sentence. Generally, in cases where a
trial court has imposed a life-without-parole sentence on a juvenile defendant, we review any
fact-finding by the trial court for clear error, any questions of law de novo, and the trial court’s
ultimate determination as to the sentence imposed for an abuse of discretion. Id. at ___ (slip op
at 25). A trial court abuses its discretion when it selects an outcome that falls outside the range
of reasonable and principled outcomes. People v Young, 276 Mich App 446, 448; 740 NW2d
347 (2007).

        As already discussed, MCL 769.25 provides that, on a prosecutor’s motion seeking a life-
without-parole sentence for a juvenile offender, a trial court must conduct a sentencing hearing
to consider the factors set forth in Miller before imposing a sentence on a defendant. In Miller,
the United States Supreme Court acknowledged that juveniles possess unique characteristics that
should preclude sentencing juveniles the same as adults. Miller, 132 S Ct at 2465-2466.
Specifically, the Miller Court determined that a sentencing court must consider the following
mitigating factors before imposing a life-without-parole sentence: (1) the “chronological age [of
the juvenile offender] and its hallmark features—among them, immaturity, impetuosity, and
failure to appreciate risks and consequences, (2) the offender’s “family and home environment
that surrounds him,” (3) “the circumstances of the homicide offense, including the extent of [the
offender’s] participation in the conduct,” (4) how “familial and peer pressures may have affected
[the offender],” (5) the possibility that the offender may have been “charged and convicted of a


                                                -3-
lesser offense if not for incompetencies associated with youth,” and (6) the offender’s
“possibility of rehabilitation.” Id. at 2468.

        Further, MCL 769.25(6) grants a trial court the discretion to consider “any other criteria
relevant to its decision, including the individual’s record while incarcerated.” When analyzing
the Miller factors and other relevant criteria, the trial court must specify any aggravating and
mitigating circumstances on the record. MCL 769.25(7). However, in doing so, the trial court
must consider whether the juvenile is “the truly rare individual who is incapable of reform.”
Hyatt, ___ Mich App at ___ (slip op at 28).

        At defendant’s latest sentencing, the trial court noted that it considered the parties’
comments, the presentencing investigation reports, exhibits, applicable law, and the lower court
file before making its determination. Further, the trial court explicitly incorporated by reference
“100 percent” of its findings from the previous sentencing.

        At that prior sentencing hearing, the trial court made the following determinations related
to the Miller factors. First, the trial found defendant’s character and record, as well as the
circumstances of the offense, to be aggravating circumstances, which weighed against defendant.
With respect to defendant’s age, the trial court stated that this factor also weighed against
defendant because he was 17½ years old at the time of his offenses and not as young as the
defendant in Miller who was 14 years old. Also, the trial court found defendant’s background,
emotional development, and family and home environment to be mitigating factors, which the
court ascribed “some positive” amount to defendant. The trial court did not ascribe any weight
to whether defendant could be convicted of a lesser offense if it were not for incompetencies
associated with youth. Lastly, the trial court found defendant’s potential for rehabilitation to be
neither an aggravating nor a mitigating circumstance.

        At the latest sentencing hearing, the trial court also considered defendant’s incarceration
record and a psychological evaluation conducted by forensic psychologist Jeffrey Wendt. With
respect to defendant’s incarceration record, the trial court found defendant’s extensive prison
violation record to be an aggravating circumstance, but noted that it did not find defendant’s
misconduct to be as “substantial” as the prosecution suggested.1 With respect to defendant’s
psychological evaluation, Wendt opined that defendant had a full-scale IQ score of 76. But the
trial court did not have “any confidence” in the report’s accuracy. The court explained that
defendant’s actions, including his oral and written communications to the court seemed to belie
Wendt’s opinion. Because the court questioned the veracity of Wendt’s report, it did not assign
the report any weight in favor or against defendant.2 Ultimately, the trial court found that a life-
without-parole sentence was appropriate based on the totality of the circumstances.



1
  At the time of defendant’s previous sentencing, he had accumulated 16 misconduct tickets in
prison, and at the time of his most recent sentencing, that total was now at 26, with some of these
new infractions addressing fighting and weapons violations.
2
  Contrary to the dissent’s assertion, the trial court did not conclude “that defendant’s intellectual
functioning was at a higher level than what the objective testing showed.” Indeed, the court

                                                 -4-
        A review of the record supports the trial court’s findings, and we conclude that the trial
court did not abuse its discretion. First, defendant was 17½ years old at the time of his offenses,
which is in marked contrast to the defendant in Miller who was only 14 years old at the time of
his offenses. See Miller, 132 S Ct at 2457. Because defendant was only six months shy of his
eighteenth birthday, this factor militates toward defendant’s ability to appreciate and understand
the risks involved with carrying out the crime of armed robbery. More specifically, based on
defendant’s upbringing around guns and violence, he was fully aware at the time of the crime
that a gun was a dangerous weapon, which carried severe consequences if used in the wrong
manner. Thus, the trial court did not err when it found that defendant’s age did not favor a
sentence with the possibility of parole.

        Although Wendt concluded that defendant’s below-average intellectual maturity may
have interfered with his ability to consider the long-term consequences of his criminal behavior
at the time of his offenses, it is well established that the trial court was under no obligation to
accept Wendt’s opinion.3 See People v Kanaan, 278 Mich App 594, 620; 751 NW2d 57 (2008);
People v Stoddard, 48 Mich App 440, 447; 210 NW2d 470 (1973) (stating that a court is not
bound to accept the opinion of a defendant’s expert even when the prosecutor does not offer any
competing expert testimony). It should be noted that defense counsel at sentencing
acknowledged that Wendt’s report was in some aspects inconsistent with defendant’s behavior,
including defendant receiving “some fairly decent grades” in school.4 Consequently, it was
reasonable for the trial court to conclude that defendant’s psychological evaluation was not a
mitigating factor (nor an aggravating factor) because of the report’s questionable results.

       Second, as a child, defendant was exposed to horrific crime and illegal activity in his
family and home environment. Specifically, defendant was exposed to physical abuse, gun
violence, and illegal drugs. As such, it was reasonable for the trial court to conclude defendant’s

stated, “I don’t purport to declare that the way you present yourself positively reveals that you
are not sub-intelligent, or you’re a genius or anything else.” Instead, the court made it clear that
it had no confidence in the report and consequently gave it no weight for or against defendant.
3
  Simply because our dissenting colleague would have accepted the report at its face value does
not mean that the trial court was obliged to do the same. In sum, the trial court’s decision to give
the report no weight was not a decision that fell outside the range of reasonable and principled
outcomes. See Young, 276 Mich App at 448 (defining abuse-of-discretion standard).
       Furthermore, regarding the dissent’s statement that “it is not unusual for prisoners to
receive help with correspondence,” there is nothing in the record to suggest that defendant, here,
received such outside assistance, nor are we at liberty to speculate that he did. In any event, as
we have noted, the trial court relied upon more than just defendant’s written correspondences.
4
  The dissent implies that these grades were only obtained when defendant attended a school for
at-risk individuals. To the contrary, the record shows that the trial court and counsel for each
party were referring to defendant’s grades in regular public high school, where he did receive
some good grades, including over a dozen A’s and B’s, with one of them being a B- in Algebra.
Defense counsel used the B- in Algebra to suggest that defendant’s poor performance in other
classes was an indicator of a failure to apply himself, not a lack of intelligence.


                                                -5-
family and home environment mitigated his ability to extricate himself from a “crime-producing
setting[].” Miller, 132 S Ct at 2464.

       Third, with respect to the circumstances of the homicide, there is overwhelming evidence
of defendant’s involvement in the planning and carrying out of the armed robbery. Indeed,
defendant concedes on appeal that there was “record support that [defendant] was actively
involved in planning and committing the robbery.” This Court previously summarized
defendant’s involvement with and the circumstances surrounding the homicide as follows:

               Testimony provided by Haden and Nevils revealed that defendant thought
       the victim could have had as much as $5,000 as a result of his marijuana dealings.
       According to them, defendant approached them on November 3, 2009 with a plan
       to rob defendant. Haden had a .40 caliber Smith & Wesson semi-automatic
       handgun which defendant told Haden to bring. Defendant then told Haden and
       Nevils that he would telephone the victim and lure him out.

               According to testimony provided at trial, Nevils then drove Haden and
       defendant to the apartment complex where the victim was thought to be residing.
       While in the vehicle, defendant called the victim, telling him he wanted to buy
       some marijuana. As they pulled into the apartment complex, defendant indicated
       to Nevils and Haden that he saw the victim outside riding a bicycle. The victim
       then approached Nevil’s car on his bicycle and as he approached, defendant got
       out of the vehicle, grabbed the victim and tried to rob him. Haden got out of the
       vehicle to assist in the robbery of the victim. The victim resisted and began to run
       away when Haden fired one shot with the “.40 caliber handgun” in the direction
       of the victim, who after being struck, fell to the ground. The victim never
       regained consciousness and died on November 5, 2009 from a single gunshot
       would to the neck.

       [People v Leak, unpublished opinion per curiam of the Court of Appeals, issued
       August 2, 2012 (Docket No. 304713), p 2 (footnote omitted).]

Thus, it is clear that not only did defendant instigate the robbery by concocting the plan, he also
instructed his accomplice to bring a handgun to the robbery. Therefore, the trial court was within
its discretion to consider defendant’s active involvement, in both the planning and carrying-out
phases of the robbery, as weighing strongly toward life imprisonment. The fact that defendant,
himself, did not pull the trigger is of little consequence under these circumstances.

        Fourth, considering defendant’s upbringing in a volatile and unstable environment where
his mother was incarcerated most of his life and defendant personally witnessed his father’s
death, it was reasonable for the trial court to conclude that defendant’s background was a
mitigating factor.

       Fifth, given defendant’s active participation in the planning and execution of the armed
robbery, it is very unlikely that he could have been charged and convicted of a lesser offense.

        Lastly, although the trial court gave no weight to defendant’s ability to be rehabilitated at
the prior sentencing, it nevertheless weighed defendant’s incarceration record against him at the
                                                -6-
subsequent sentencing. This was not erroneous. Defendant accrued 26 prison violations in
approximately four years with 10 of these happening after the prior sentencing. In fact, many of
these most recent violations were for more serious violations, such as relating to weapons or
fighting.5 Further, defendant is described as a dangerous prisoner who “seeks out violence and
thrives on it.” Defendant’s continued anti-social behavior and disregard for the safety of others
militates toward defendant being the type of individual who is incapable of rehabilitation and
weighs in favor of a sentence of life imprisonment without the possibility of parole.

       Accordingly, based on the totality of the circumstances, we hold that the trial court did
not abuse its discretion when it found that defendant should be subject to a life-without-parole
sentence for his first-degree felony murder conviction.6

       Affirmed.



                                                            /s/ Henry William Saad
                                                            /s/ Michael J. Kelly




5
  The dissent appears to claim that the trial court erred when it found that defendant’s record
while in prison was an aggravating factor for sentencing purposes. However, in support of this
assertion, the dissent merely, and we think improperly, accepts defendant’s unsworn statements
that minimized his involvement with his various infractions. We do not see why such self-
serving statements would have to be accepted as true by any court. The dissent appears to
maintain that many of defendant’s numerous infractions while in prison were unwarranted. But
looking at the undeveloped record on this topic, we do not have a definite and firm conviction
that the trial court erred. See People v McElhaney, 215 Mich App 269, 273; 545 NW2d 18
(1996) (defining clearly erroneous standard of review).
6
  If we were to remand for resentencing, contrary to the dissent’s view, we would see no need to
remand to a different trial judge. There is nothing in the record to indicate that the trial judge
would have difficulty in following the law as articulated by this Court. Defendant’s previous
resentencings before this trial judge were all done because of intervening changes in the law and
were not attributable to any errors on the judge’s part. If there were a history of the trial judge
repeatedly abusing his discretion or failing to follow the law, then we would be more inclined to
agree with our colleague.


                                                -7-
