                           Court of Appeals, State of Michigan

                                          ORDER
                                                                       Brock A. Swartzle
 People of MI v Charles Duane Finch                                      Presiding Judge

 Docket No.   346412                                                   Jane E. Markey

 LC No.       76-009004-FH                                             James Robert Redford
                                                                         Judges


               The Court GRANTS the motion for reconsideration and VACATES this Court's opinion
issued January 21, 2020. A new opinion is attached to this order.



                                                      /s/ Brock A. Swartzle




                             March 17, 2020
            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    PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                     March 17, 2020
                Plaintiff-Appellee,

    v                                                                No. 346412
                                                                     Jackson Circuit Court
    CHARLES DUANE FINCH,                                             LC No. 76-009004-FH

                Defendant-Appellant.


                                      ON RECONSIDERATION

Before: SWARTZLE, P.J., and MARKEY and REDFORD, JJ.

PER CURIAM.

        Defendant appeals the judgment of sentence entered following resentencing for his 1977
convictions of first-degree felony murder, MCL 750.316(1)(b), and conspiracy to commit first-
degree murder, MCL 750.157a, offenses he committed when 16 years old. On May 11, 1977, the
trial court sentenced defendant to life without parole (LWOP) for both offenses.1

       Because the United States Supreme Court in Miller v Alabama, 567 US 460; 132 S Ct.
2455; 183 L Ed2d 407 (2012), held unconstitutional the imposition of mandatory LWOP sentences
on juveniles, the circuit court held a lengthy hearing on September 19, 2018. On September 26,
2018, the circuit court entered its judgment of sentence imposing a term of 40 to 60 years’
incarceration with credit for 15,404 days on both counts.

       After entry of the sentence, the Michigan Department of Corrections (MDOC)
communicated with the sentencing court regarding resentencing defendant on the conspiracy count
and the circuit court then on its own initiative scheduled and held another resentencing hearing on


1
 Our Supreme Court in People v Jahner, 433 Mich 490; 446 NW2d 151 (1989), held that
defendants convicted of conspiracy to commit first-degree murder are eligible for parole
consideration and retroactively applied its holding to defendants who received mandatory LWOP
sentences for such conspiracy convictions.


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October 15, 2018, after which it issued an opinion and order amending defendant’s judgment of
sentence to a term of 40 to 60 years on Count 1, felony murder; and life on Count 3, conspiracy to
commit first-degree murder.

        In an unpublished opinion per curiam, we affirmed the circuit court’s judgment of sentence
following its resentencing of defendant on his conspiracy conviction. See People v Finch,
unpublished opinion of the Court of Appeals, issued January 21, 2020 (Docket No. 346412).
Defendant moved for this Court’s reconsideration of its opinion on the ground that our Supreme
Court’s order in People v Turner, ___ Mich ___, ____; 936 NW2d 827 (2019), ruled that this
Court erred by ruling that MCL 769.25a does not allow resentencing of a defendant on concurrent
sentences and held that, “at a Miller resentencing, the trial court may exercise its discretion to
resentence a defendant on a concurrent sentence if it finds that the sentence was based on a legal
misconception that the defendant was required to serve a mandatory sentence without parole on
the greater offense.” We granted defendant’s motion for reconsideration.

        In light of our Supreme Court’s ruling in Turner, we vacate our January 21, 2020 opinion
and remand to the sentencing court for its determination whether defendant’s concurrent LWOP
sentence on his conspiracy conviction, which was later converted to a life with the possibility of
parole by People v Jahner, 433 Mich 490; 446 NW2d 151 (1989), was based on a legal
misconception and whether it resentenced defendant under the misconception that it lacked
discretion to resentence defendant on that conviction.

       If on remand the circuit court determines that defendant’s conspiracy conviction was based
on a legal misconception that it lacked discretion to resentence defendant on that conviction, it
should vacate his sentence on his conspiracy conviction and resentence defendant on that
conviction. We do not retain jurisdiction.

                                                            /s/ Brock A. Swartzle
                                                            /s/ Jane E. Markey
                                                            /s/ James Robert Redford




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