                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 22, 2016
              Plaintiff-Appellee,

v                                                                  No. 325662
                                                                   Macomb Circuit Court
IHAB MASALMANI,                                                    LC No. 2009-005244-FC

              Defendant-Appellant.


Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.

PER CURIAM.

       Defendant was convicted at a jury trial of first-degree felony murder, MCL
750.316(1)(b), carjacking, MCL 750.529a, conspiracy to commit carjacking, MCL 750.529a;
MCL 750.157a, kidnapping, MCL 750.349, conspiracy to commit kidnapping, MCL 750.349;
MCL 750.157a, larceny from the person, MCL 750.357, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. Defendant was originally sentenced to
mandatory life imprisonment without the possibility of parole for the first-degree felony murder
conviction, 25 to 50 years’ imprisonment each for the carjacking, conspiracy to commit
carjacking, kidnapping, and conspiracy to commit kidnapping convictions, 5 to 10 years’
imprisonment for the larceny from the person conviction, and two years’ imprisonment for the
felony-firearm conviction.1 On defendant’s appeal by right, this Court affirmed defendant’s
convictions but vacated his mandatory sentence of life imprisonment without the possibility of
parole for the first-degree felony murder conviction and remanded for resentencing on that
offense in accordance with Miller v Alabama, 567 US ___; 132 S Ct 2455; 183 L Ed 2d 407
(2012). People v Masalmani, unpublished opinion per curiam of the Court of Appeals, issued
March 19, 2013 (Docket Nos. 301376, 301377, 301378), p 7. The trial court on remand
resentenced defendant to life imprisonment without the possibility of parole for the first-degree


1
  Defendant was also convicted of and sentenced for numerous other charges in two other cases
that were consolidated for trial with the instant case, and this Court affirmed those convictions
and sentences. See People v Masalmani, unpublished opinion per curiam of the Court of
Appeals, issued March 19, 2013 (Docket Nos. 301376, 301377, 301378), pp 1-2. Those two
cases that were consolidated with the instant case are not presently before this Court, and we
therefore do not list those convictions and sentences.


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felony murder conviction. Defendant now appeals by right the sentence imposed on remand.
We affirm.

       Defendant argues that the trial court erred in imposing a life without parole sentence on
remand. We disagree. “[T]he appropriate standard of review in cases where a judge imposes a
sentence of life without parole on a juvenile defendant is a common three-fold standard . . . .”
People v Hyatt, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 325741); slip op at
25. The trial court’s findings of fact are reviewed for clear error, questions of law are reviewed
de novo, and the court’s ultimate determination as to an appropriate sentence is reviewed for an
abuse of discretion. Id.

       In Miller, 132 S Ct at 2460, the United States Supreme Court held that a sentence of
“mandatory life without parole for those under the age of 18 at the time of their crimes violates
the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ”

       Mandatory life without parole for a juvenile precludes consideration of his
       chronological age and its hallmark features—among them, immaturity,
       impetuosity, and failure to appreciate risks and consequences. It prevents taking
       into account the family and home environment that surrounds him—and from
       which he cannot usually extricate himself—no matter how brutal or
       dysfunctional. It neglects 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. Indeed, it ignores that he 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 finally, this mandatory punishment disregards the possibility of rehabilitation
       even when the circumstances most suggest it. [Id. at 2468.]

“By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison
sentence, such a scheme poses too great a risk of disproportionate punishment.” Id. at 2469.
The Supreme Court declined to consider the defendants’ arguments for a categorical prohibition
of life without parole sentences for juveniles but stated that “appropriate occasions for
sentencing juveniles to this harshest possible penalty will be uncommon.” Id. The Supreme
Court noted that it was difficult to distinguish “at this early age between the juvenile offender
whose crimes reflects unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.” Id. (quotation marks and citations omitted). “Although
we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it
to take into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” Id.

        Following the issuance of Miller, our Legislature enacted MCL 769.25, which became
effective on March 4, 2014. See 2014 PA 22. The statute applies to a defendant who was less
than 18 years old at the time he or she committed the offense. MCL 769.25(1). The prosecutor
may file a motion to sentence a defendant convicted of first-degree murder to life without parole.
MCL 769.25(2) and (3). If the prosecutor files such a motion in conformance with the statutory
requirements, the trial court must conduct a hearing at which the court considers the factors listed

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in Miller and any other relevant criteria, including the defendant’s prison record. MCL
769.25(6). At the hearing, the trial court must specify the aggravating and mitigating
circumstances and the reasons for the sentence imposed; the court may consider evidence
presented at trial and evidence presented at the sentencing hearing. MCL 769.25(7). If the trial
court declines to impose a life without parole sentence, the court must impose a sentence in
which the maximum term is at least 60 years and the minimum term is between 25 and 40 years.
MCL 769.25(9).

        Although the trial court’s ultimate determination of the appropriate sentence is reviewed
for an abuse of discretion, “the imposition of a juvenile life-without-parole sentence requires a
heightened degree of scrutiny regarding whether a life-without-parole sentence is proportionate
to a particular juvenile offender, and even under this deferential standard, an appellate court
should view such a sentence as inherently suspect.” Hyatt, ___ Mich App at ___; slip op at 26.
“[A]ppellate review of a juvenile life-without-parole sentence cannot be a mere rubber-stamping
of the penalty handed out by the sentencing court.” Id. Although such a sentence is not
presumed to be unconstitutional, a searching inquiry into the record must be undertaken with
“the understanding that, more likely than not, the sentence imposed is disproportionate.” Id. A
sentencing court abuses its discretion if it “ ‘fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant factor, or
considers only appropriate factors but nevertheless commits a clear error of judgment by arriving
at a sentence that lies outside the limited range of choice dictated by the facts of the case.’ ” Id.
at 27, quoting United States v Haack, 403 F3d 997, 1004 (CA 8, 2005).

        In Hyatt, ___ Mich App at ___; slip op at 27-28, this Court concluded that the trial court
had failed to adhere to the directives in Miller and its progeny “about the rarity with which a life-
without-parole sentence should be imposed.” Although the trial court in Hyatt focused on the
Miller factors, “the court gave no credence to Miller’s repeated warnings that a life-without-
parole sentence should only be imposed on the rare or uncommon juvenile offender.” Hyatt, ___
Mich App at ___; slip op at 28. Moreover, the trial court in Hyatt had emphasized a
psychologist’s opinion that the defendant’s prognosis for change in the next five years was poor;
the focus on a five-year period was inconsistent with the holding in Miller “that a life-without-
parole sentence will be proportionate for the juvenile who is irreparably corrupt and incapable of
change – not one who is incapable of change within the next five years.” Id. This Court
therefore remanded the case for resentencing and directed the trial court “to not only consider the
Miller factors, but to decide whether this individual is the truly rare juvenile mentioned in Miller
who is incorrigible and incapable of reform.” Id.

        In the present case, the trial court did not err in analyzing each of the Miller factors and
finding that defendant is the rare juvenile offender who is irreparably corrupt. The trial court
expressed full appreciation of the rarity of the circumstances in which a juvenile offender will be
deemed incapable of reformation. The court quoted and discussed relevant portions of the
holding and analysis in Miller, and noted the admonition in Miller that appropriate occasions to
sentence juveniles to life without parole will be uncommon. Then, after analyzing the Miller
factors, the trial court concluded “that defendant’s case presents precisely what the Supreme
Court characterized as the ‘rare juvenile offender whose crime reflects irreparable corruption.’ ”
Accordingly, the trial court accorded appropriate recognition and made pertinent findings


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regarding the rarity of circumstances warranting a life without parole sentence for a juvenile
offender.

        Moreover, the trial court’s conclusion that defendant is the rare juvenile offender for
whom a life without parole sentence is warranted was supported by the court’s accurate analysis
of the Miller factors. We will now discuss each of the Miller factors.

        The first factor concerns defendant’s age and its hallmark features. Miller, 132 S Ct at
2468. Defendant was 17 years and 8 months old when he committed the offenses (in marked
contrast to the 14-year-old defendants in Miller, 132 S Ct at 24602). The record refutes any
claim that the hallmark features of adolescence identified in Miller, 132 S Ct at 2468, including
immaturity, impetuosity, and a failure to appreciate risks and consequences, played any role in
defendant’s crimes. This was not, as in Miller, 132 S Ct at 2465, a mere botched robbery that
turned into a killing. Defendant engaged in an unusually horrific, disturbing, and violent crime
spree that extended over a three-day period. Defendant, aided by codefendant Robert Taylor,
brazenly and forcibly kidnapped and carjacked Matt Landry in broad daylight outside a
restaurant, punched and dragged him by the neck, drove his car, held him captive for at least
seven hours, used his ATM card to steal his money and buy numerous items. He then took
Landry to a drug house where defendant bought and consumed crack cocaine. Finally, defendant
took Landry to a nearby vacant house where he killed him in a brutal execution style by shooting
him in the back of the head. Defendant then committed additional violent crimes over the next
two days, including robbing a bank and its customers, kidnapping a bank customer, and another
carjacking. Landry’s significantly decomposed body was found two days later inside the vacant
burned out house where he had been shot in the back of the head. From the position of the body,
it appeared that Landry had been kneeling at the time of his murder. Defendant’s criminal
actions over an extended period of time are not reflective of a merely immature or impetuous
adolescent who fails to appreciate risks and consequences.

       Defendant relies on testimony by Dr. Daniel P. Keating, defendant’s expert in cognitive
and brain development in adolescents, about a developmental maturity mismatch in which an
adolescent’s limbic system matures more quickly than the prefrontal cortex. This testimony has
minimal bearing on these facts, and Dr. Keating did not meet or interview defendant. He was



2
  The Supreme Court in Miller indicated that it is appropriate to take into account the differences
between juveniles of different ages. In particular, when explaining the flaws of a scheme of
mandatory life imprisonment without parole for juveniles, the Miller Court said: “Under these
schemes, every juvenile will receive the same sentence as every other—the 17-year-old and the
14-year-old, the shooter and the accomplice, the child from a stable household and the child from
a chaotic and abusive one.” Miller, 132 S Ct at 2467-2468. The Miller majority criticized the
dissents in Miller for repeatedly referring to 17-year-olds who have committed heinous offenses
and comparing those defendants to the 14-year-old defendants in Miller. The Miller majority
explained: “Our holding requires factfinders to attend to exactly such circumstances – to take
into account the differences among defendants and crimes. By contrast, the sentencing schemes
that the dissents find permissible altogether preclude considering these factors.” Id. at 2469 n 8.


                                                -4-
only addressing generic brain science. Defendant’s reliance on Dr. Keating’s testimony that the
prefrontal cortex is not fully developed until a person reaches his or her middle twenties fails to
consider that an offender who is only four months older than defendant is subject to a mandatory
life without parole sentence. Dr. Keating acknowledged that a person who is 17 years and 8
months old is not significantly different in brain development from an 18-year-old person. Also,
William Ladd, who was defendant’s lawyer guardian ad litem (LGAL) for many years, testified
that defendant fell within the middle range in terms of maturity of the 5,000 to 8,000 children
with whom Ladd had worked in his 30 years of experience. In sum, defendant’s chronological
age and its hallmark features do not weigh in favor of mitigation.

        The next factor concerns defendant’s family and home environment. Miller, 132 S Ct at
2468. The trial court correctly noted that there was uncontroverted testimony that defendant had
a terrible family and home environment, having been subjected to abuse and neglect by relatives
in the United States after having been sent here from Lebanon as a child. Defendant was placed
in at least 10 foster homes. He was diagnosed with ADHD, depression, and pediatric seizures.
Services meant to address his special needs were not continuously provided. Further, cultural
and linguistic considerations were not adequately taken into account. As defendant was moved
from one foster care placement to another, he lost the ability to form attachments with parental
figures and became more oriented toward being out on the streets, eventually becoming involved
in gangs. In school, defendant struggled academically and began getting into fights and
exhibiting disrespect to his teachers. Defendant had juvenile delinquency cases for assault and
drug offenses; he pleaded guilty to misdemeanors and became a delinquent court ward. In light
of the terrible circumstances of defendant’s family and home environment, the trial court
properly weighed this factor in favor of defendant and against a life without parole sentence.

        The next factor is “the circumstances of the homicide offense, including the extent of
[defendant’s] participation in the conduct and the way familial and peer pressures may have
affected him.” Miller, 132 S Ct at 2468. As discussed, defendant actively participated in the
crimes. There is no indication that any family or peer pressure led defendant to commit the
crimes. Defendant held Landry captive for at least seven hours, used his ATM card to obtain
Landry’s money, purchased multiple items with that money, took Landry to a drug house where
defendant consumed crack cocaine, and then took Landry to a nearby vacant house where
defendant shot Landry in the back of the head in a cold-blooded execution-style murder.
Defendant then committed additional violent crimes over the next two days and used Landry’s
vehicle as a getaway car. Defendant had more than ample opportunity to abandon his criminal
acts during the many hours that he held Landry captive and used his money before killing him in
a brutal fashion. Given defendant’s extensive participation in these disturbing criminal acts and
the absence of any family or peer pressure on defendant, the trial court did not err in heavily
weighing this factor against defendant and concluding that it did not favor mitigation.

         The next Miller factor is whether defendant “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.” Miller, 132 S Ct at 2468. The trial court correctly noted that there is no
evidence of any incapacities of youth that rendered defendant unable to participate in his defense
or that led him to implicate himself. This factor therefore did not weigh in favor of mitigation.


                                                -5-
        The final factor is the possibility of rehabilitation suggested by the circumstances.
Miller, 132 S Ct at 2468. Dr. Keating explained that a person’s prospects for rehabilitation are
associated with his or her developmental history. Negative experiences and behaviors during a
person’s developmental period increase the probability that the person will not succeed in rising
above difficulties. Some people do not change; the worse the circumstances, the more likely that
the person will not overcome their circumstances. Greater rehabilitation challenges exist for
someone who purposely shot another.

        Dr. Lyle Danuloff, a clinical psychologist who met with defendant for more than four
hours over three different visits, explained that when defendant committed the crimes in this
case, he was unattached in human relationships, living on the streets, and living an amoral life
“with the sense of what do I need and what do I need to do to get my needs met. He lived in the
moment and did not live with any sense of right and wrong.” When defendant committed the
crimes, he was AWOL from his last placement, running the streets with other young people,
consuming marijuana, selling drugs, and lacking any personhood in terms of relating to other
people as fellow human beings rather than objects to meet his needs. Dr. Danuloff thinks that
defendant has experienced turning points in his development. Defendant “got lucky” because he
was placed in segregation where he is alone in his cell 23 hours a day and because he learned
about the Miller decision, so he now has a hope of someday obtaining a parole hearing. While
alone in his cell, defendant began to read the Bible and other books to learn how people treat one
another and the difference between righteousness and evil. Dr. Danuloff opined that the
possibility of a parole hearing motivated defendant to begin to explore himself and try to
understand who he is, what he did, and why he did it. In Dr. Danuloff’s view, defendant is
beginning to have a very primitive and embryonic capacity to explore himself and ask questions
about himself. Defendant stopped getting misconduct tickets in prison. Defendant also became
a prison barber and a representative of his prison housing unit.

        Dr. Danuloff testified that defendant said that “[e]ven a Godly person can punish people
who bring harm to them. Even God did this.” When asked whether what he did in this case was
righteous or evil, defendant said that “it was a little bit of both.” Defendant explained, “[W]ell, I
didn’t have any choice. It’s how I was, it’s how I lived, it’s how I behaved.” Defendant said, “I
couldn’t think of anything else to do. I was in a situation and I had to get—and I had to take care
of the situation I was in.” When asked how his actions were evil, defendant said that he hurt
people badly, which indicates to Dr. Danuloff “the embryonic development of personhood.” Dr.
Danuloff thinks defendant is in the rudimentary stages of growing up by using people like Jesus
and Muhammad as teachers and internalizing what he reads. Dr. Danuloff indicated that there is
no way for a psychologist to predict how a person will behave in the future.

       On cross-examination, Dr. Danuloff acknowledged that people normally cannot fix
psychological problems by themselves and that psychotherapy is needed. Psychotherapy
requires introspection and a willingness to work on oneself. Dr. Danuloff agreed that he saw
defendant in the structured prison setting years after the crimes were committed and that he
cannot say what defendant would be like if released.

        The trial court correctly concluded that this factor did not favor mitigation. Although the
difficulty of defendant’s upbringing weighs in his favor, it also indicates that he faces significant
challenges in improving himself, as reflected in the testimony of Dr. Keating and Dr. Danuloff.

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We share the trial court’s concern about defendant’s comments to Dr. Danuloff reflecting that
defendant thinks his actions in this case were partially righteous and that he did not have a
choice. As discussed, defendant had more than ample opportunity to abandon his criminal
activity in the many hours that he held Landry captive before brutally killing him. Hence,
defendant’s abhorrent belief that his actions were partially righteous and that he had no choice
but to behave as he did, despite the horrific nature of his criminal acts committed over an
extended period of time, indicates that defendant’s prospects for rehabilitation are extremely
remote or nonexistent. Defendant continued engaging in assaultive behavior after being
incarcerated for the present offenses. He assaulted or attempted to assault staff personnel at the
Macomb County Jail several times. After being transferred to prison, defendant incurred 23
misconduct tickets. Four of the tickets were for fighting, two were for engaging in threatening
behavior, two were for possessing a weapon, one was for assault and battery of another prisoner,
and another one was for assault resulting in serious physical injury to another prisoner. The fact
that defendant stopped misbehaving in prison after learning of Miller does not necessarily reflect
a rudimentary moral awakening, as Dr. Danuloff claimed. Defendant’s improved behavior is just
as, if not more, likely to reflect manipulation designed to obtain a lesser sentence, as the trial
court found. This conclusion is also consistent with defendant’s earlier diagnosis of antisocial
personality disorder and the manipulative behaviors associated with that condition. Dr. Danuloff
testified that persons diagnosed with antisocial personality disorder do not generally participate
in psychotherapy unless mandated to do so and that the prognosis for such mandatory treatment
is not positive. Moreover, even if defendant is beginning to exhibit a very rudimentary or
embryonic capacity for self-exploration, we note Dr. Danuloff’s testimony supports the trial
court’s conclusion that defendant is unlikely to make significant progress without intensive
professional assistance, and no basis exists to conclude that he will receive intensive professional
assistance in prison and achieve full rehabilitation. The trial court properly concluded that
defendant’s prospects for rehabilitation are negligible.

       Overall, our review of the record indicates that the trial court accurately analyzed each of
the Miller factors and correctly concluded that defendant is the rare juvenile offender whose
crime reflects irreparable corruption. The trial court therefore did not abuse its discretion in
determining that defendant should be sentenced to life imprisonment without parole.

        Defendant next argues that the trial court erred in failing to empanel a jury at the Miller
resentencing hearing. We disagree. This issue presents a question of law, which is reviewed de
novo. Hyatt, ___ Mich App at ___; slip op at 2. Because defendant failed to preserve this issue
by raising it below, People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61
(2007), our review is for plain error affecting substantial rights, People v Carines, 460 Mich 750,
763-764; 597 NW2d 130 (1999).

       In People v Skinner, 312 Mich App 15, 20; 877 NW2d 482 (2015), rejected by Hyatt, ___
Mich App at ___; slip op at 21, the majority of a panel of this Court held “that the Sixth
Amendment mandates that juveniles convicted of homicide who face the possibility of a
sentence of life without the possibility of parole have a right to have their sentences determined
by a jury.” In People v Perkins, ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket Nos.
323454, 323876, 325741); vacated in part by People v Perkins, unpublished order of the Court of
Appeals, entered February 12, 2016 (Docket Nos. 323454, 323876, 325741), and superseded in
part by Hyatt, ___ Mich App at ___; slip op at 1, 21, another panel of this Court followed

                                                -7-
Skinner only because it was obligated to do so, MCR 7.215(J)(2), and stated its opinion that
Skinner was wrongly decided. In Hyatt, ___ Mich App at ___; slip op at 21, a conflict panel of
this Court3 rejected the analysis in Skinner and expressed agreement with the original panel in
Perkins. The Hyatt conflict panel summarized its analysis as follows:

               In sum, we find that Miller’s individualized sentencing mandate, as
       incorporated by MCL 769.25, does not run afoul of Sixth Amendment precedent.
       A judge, not a jury, is to make the determination of whether to impose a life-
       without-parole sentence or a term-of-years sentence under MCL 769.25.
       Accordingly, we reject the result reached in Skinner and conclude that the prior
       panel in this case was correct in its analysis. [Hyatt, ___ Mich App at ___; slip op
       at 21.]

Therefore, the trial court in this case did not err by failing to empanel a jury at the Miller hearing
because the conflict panel in Hyatt rejected the portion of Skinner on which defendant relies.

       We affirm.

                                                              /s/ Jane E. Markey
                                                              /s/ Michael J. Riordan




3
 Before the issuance of the conflict panel’s opinion in Hyatt, the conflict panel issued an order
vacating an earlier order that had consolidated Perkins, Hyatt, and another case, so that only
Hyatt proceeded before the conflict panel. See People v Perkins, unpublished order of the Court
of Appeals, issued April 26, 2016 (Docket Nos. 323454, 323876, 325741). That is why the
conflict panel’s opinion was decided under a different case name.


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