            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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  July 25, 2019
              Plaintiff-Appellee,

v                                                                 No. 343987
                                                                  Saginaw Circuit Court
JAMES WASHINGTON, III,                                            LC No. 99-017628-FC

              Defendant-Appellant.


Before: O’BRIEN, P.J., and FORT HOOD and CAMERON, JJ.

PER CURIAM.

       In 2000, defendant was convicted by a jury of first-degree premeditated murder, MCL
750.316(1)(a), and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227(b)(1). Defendant—who was a juvenile at the time—was sentenced to life in
prison without parole for the murder and two years’ imprisonment for the felony-firearm
conviction. Following Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012)
(which held that imposing mandatory life-without-parole sentences on juvenile offenders violates
the Eighth Amendment) and Montgomery v Louisiana, ___ US ___; 136 S Ct 718; 193 L Ed 2d
599 (2016) (which held that Miller applies retroactively) the Michigan Supreme Court vacated
defendant’s sentence for life without parole, and remanded to the trial court for resentencing.
People v Washington, 499 Mich 909 (2016). On remand, the trial court sentenced defendant
under MCL 769.25a to 40 to 60 years’ imprisonment for his murder conviction. We affirm.

                                      I. BACKGROUND

       At defendant’s resentencing hearing, the trial court described the events that led to
defendant’s conviction as follows:

       This homicide was a premeditated execution-style killing over a drug debt.
       Defendant was a drug dealer at the time of the murder, and the victim was a
       customer who allegedly owed defendant money.




                                              -1-
              In the late hours of June 26, 1999, two 13-year-old boys were visiting
       defendant who supplied them with drugs and alcohol. In the hours leading up to
       the murder, defendant asked his younger visitors if they wanted to see someone
       get shot and killed. Later on, as the two boys were sleeping, defendant woke
       them up and told them it was time for the killing.

               The defendant then lured the victim and another adult male, [Robert]
       Corcoran, to his home under the guise of a drug transaction. When the two men
       arrived in the defendant’s driveway, the defendant directed them into the back
       yard. Defendant then turned back to his younger friends and asked if they were
       ready. After that, the defendant pulled a gun from his waistband and pulled the
       trigger. The gun initially misfired, but defendant pulled the trigger again and shot
       [the victim] in the head.

             After [the victim] fell to the ground, the defendant walked over and shot
       him again. He later told his younger companions, that is how you kill
       someone. . . . .

               Defendant then ordered Corcoran to move [the victim’s] body. Corcoran
       grabbed [the victim’s] legs and pulled him into an area of flowers and shrubs,
       partially concealing [the victim’s] body.          Defendant took Corcoran’s
       identification, told Corcoran that he knew where he lived, and that the same thing
       would happen to him if he told anyone about the murder.

              The defendant then yelled for his neighbor, [Steve] Smith, because he
       wanted Smith to help him dispose of [the victim’s] body. A Buick, driven by
       Beauford Adkins, a relative of the defendant’s, backed into defendant’s driveway.
       Defendant, Smith, and Adkins wrapped [the victim’s] body in a sleeping bag and
       blanket and loaded it into the trunk. Adkins and Smith drove to a rural area in
       Gladwin County, where they left [the victim’s] body in the woods.

               Corcoran later called the police and reported that he had witnessed a
       homicide in Saginaw. He explained the reason that so many people were
       involved was because the defendant was on electronic monitoring and could not
       leave his residence.

       On remand, the trial court heard statements from defendant, his counsel, and the victim’s
family. Following these statements, the trial court delivered its ruling from the bench. It
discussed at length the factors from Miller and People v Snow, 386 Mich 586, 592; 194 NW2d
314 (1972), and explained how each factor weighed into its decision. After explaining its
reasoning, the trial court sentenced defendant to 40 to 60 years’ imprisonment for the murder
conviction.

       Defendant now argues that the trial court failed to correctly apply the Miller factors. He
maintains that the court only gave minimal consideration to how defendant was affected by his
youthfulness at the time of the offense; abused its discretion by relying on information that was



                                               -2-
not contained in the lower court record; failed to adequately consider the extent of defendant’s
rehabilitation; and ultimately imposed a de facto life sentence. We disagree.

                                  II. STANDARD OF REVIEW

       This Court reviews for an abuse of discretion the trial court’s decision to sentence
defendant under MCL 769.25a to 40 to 60 years’ imprisonment. See People v Skinner, 502 Mich
89, 131; 917 NW2d 292 (2018). “[A]n abuse of discretion standard acknowledges that there will
be circumstances in which there will be no single correct outcome; rather, there will be more
than one reasonable and principled outcome.” Id. at 133 (quotation marks and citation omitted).

                                III. MILLER AND ITS PROGENY

        After Miller held mandatory life-without-parole sentences for juvenile offenders to be
unconstitutional, but before Montgomery declared Miller retroactive, our Legislature enacted
MCL 769.25a, which was to apply if Miller was determined to apply retroactively. See People v
Wiley, 324 Mich App 130, 137; 919 NW2d 802 (2018). Because Montgomery declared Miller
retroactive, MCL 769.25a applies. That statute sets forth the procedure for resentencing criminal
defendants under Miller when the case is final. As relevant here, MCL 769.25a allows the trial
court to resentence those juvenile offenders originally sentenced to life without parole to a term
of years “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).

        In Miller, the United States Supreme Court held that judges or juries sentencing juvenile
offenders “must have the opportunity to consider mitigating circumstances” before sentencing
juveniles to a sentence of life without the possibility of parole. Id. at 489. In Skinner, our
Supreme Court enumerated these mitigating factors as follows:

       (1) “his chronological age and its hallmark features—among them, immaturity,
       impetuosity, and failure to appreciate risks and consequences”; (2) “the family
       and home environment that surrounds him—and from which he cannot usually
       extricate himself—no matter how brutal or dysfunctional”; (3) “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”; (4) whether “he
       might have been charged [with] 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 (5) “the possibility of rehabilitation . . . .” [Skinner,
       502 Mich at 114-115, quoting Miller, 567 US at 477-478.]

        In People v Wines, 323 Mich App 343, 352; 916 NW2d 855 (2018), this Court held that
Miller “does not constitutionally compel a sentencing judge to consider only the factors defined
in Miller when the sentence of life imprisonment without parole is not sought by the prosecution
per MCL 769.25a,” as is the case here. Yet the Wines Court held that trial courts must still
“consider the distinctive attributes of youth, such as those discussed in Miller,” when sentencing
a defendant to a term of years under MCL 769.25a. Id. at 352. The Wines Court reasoned that,
based on Snow, 386 Mich at 592, a sentencing court should balance “(1) reformation of the
                                                 -3-
offender, (2) protection of society, (3) punishment of the offender, and (4) deterrence of others
from committing like offenses,” and that these can only be properly balanced “in the case of a
[juvenile] defendant” by considering “the distinctive attributes of youth.” Wines, 323 Mich App
at 351-352.

                           IV. DEFENDANT’S YOUTHFULNESS

        Defendant first argues that the trial court incorrectly applied the Miller factors in
determining the extent to which defendant was affected by his chronological age and its hallmark
features. We disagree.

       When sentencing defendant, the trial court reasoned:

              Miller instructs the Court to consider the character and record of the
       individual offender as well as the offender’s chronological age at the time of the
       offense. The defendant here was 17 when he committed this murder. Prior to his
       17th birthday, the defendant amassed a significant juvenile justice history,
       including a 1994 larceny from a person, which resulted in a warning, and two
       1996 adjudications for assault with intent to do great bodily harm less than
       murder.     As a result of the assault adjudications, the defendant spent
       approximately two years in a juvenile detention facility before he was released to
       his mother’s custody in 1998.

               Almost immediately after his 17th birthday, defendant became involved in
       the adult criminal justice system. On April 25, 1999, he was charged with assault
       with intent to do great bodily harm, operating under the influence of liquor, minor
       in possession, driving while license suspended, and having improper plates. The
       defendant was on electronic monitoring as a condition of his bond in the assault
       case when he murdered the victim on June 27, 1999.

               Defendant’s age at the time of the offense would be a mitigating factor in
       light of the immaturity, impetuousness, and recklessness often associated with
       youth. However, there’s no evidence that the defendant was immature for his age
       or that he suffered from a learning disability or emotional impairment. Rather,
       the record indicates that the defendant was a relatively bright teenager who was
       able to earn his GED in 1997 while in juvenile placement. Additionally, the
       Court finds the defendant’s significant juvenile justice history and his prior
       involvement in the adult criminal justice system to be aggravating factors in terms
       of his sentencing.

        Contrary to defendant’s position, the trial court appropriately weighed defendant’s age
and the characteristics that often accompany young age—such as immaturity, impetuousness,
and recklessness—when sentencing defendant. The trial court explicitly recognized this
mitigating factor and explained, in detail, why the factor did not justify a lower sentence.
Defendant appears to argue that Miller mandates that a juvenile offender’s chronological age and
its hallmark features always justify a lower sentence. But that is not what Miller held; Miller
required that sentencing courts “have the opportunity to consider mitigating” factors such as the

                                               -4-
hallmark features of youth. Miller, 567 US at 489 (emphasis added). The trial court had the
opportunity to—and did—consider this factor, and decided that it justified a lower sentence in
defendant’s case. The trial court gave a reasonable and principled explanation for this decision,
so we conclude that the trial court did not abuse its discretion. Skinner, 502 Mich at 133.1

                               V. FACTS NOT IN THE RECORD

       Next, defendant argues that the trial court abused its discretion when sentencing him
because it relied on information that was not in the record and did not provide defendant an
opportunity to refute that information.

         The portion of defendant’s sentencing that he argues was not in the record occurred while
the trial court was reciting the factual basis for defendant’s conviction. The trial court stated:

              After [the victim] fell to the ground, defendant walked over and shot him
       again. He later told his younger companions, that is how you kill someone. By
       the way, both of these boys went on to be involved in the criminal justice system
       themselves, one of them for murder. [Emphasis added.]

Defendant is correct that the italicized portion is not in the record. Yet there is nothing to
suggest that the trial court relied on this information when sentencing defendant. Again, the trial
court noted this information while it was establishing the factual basis for defendant’s
conviction, and it appears to be nothing more than an aside. The whole of the trial court’s
reasoning for defendant’s sentence spans 12 pages of transcript. In those 12 pages, the trial court
explains the numerous factors that it considered to justify defendant’s sentence. There is nothing
in those 12 pages to suggest that the trial court considered this information when determining
defendant’s ultimate sentence. Accordingly, defendant has not established any error warranting
resentencing.

                                    VI. REHABILITATION

       Defendant argues that the trial court erred when it resentenced him to a minimum 40-year
term for his murder conviction because his self-reformation and rehabilitation during his years of
incarceration should have “strongly” mitigated his sentence. We disagree.

        The Court acknowledged at length that, since 2007, defendant’s behavior in prison was
positive:



1
   As part of defendant’s argument that the trial court abused its discretion by not properly
weighing his chronological age, defendant references difficulties he experienced in his family
and home environments leading up to the crime. In a different portion of the trial court’s oral
opinion, it separately considered defendant’s family and home environments, and concluded that
it was a mitigating factor.


                                                -5-
       [T]he Court acknowledges that the defendant has shown considerable
       improvement in his attitude and behavior since 2007, when his mother passed
       away. After his mother’s death, the defendant accepted responsibility for this
       murder and expressed remorse for his actions.

              He has also completed all of his program recommendations in prison,
       including anger management, behavioral modification, substance abuse, and self-
       help programs. He has also taken college classes offered through Central
       Michigan University and Saginaw Valley State University.

              He has also become a mentor in two programs, Youth Deterrent and
       Common Ground. Probation Officers Kila Thomas, Roger Foster, and Barbara
       Beekman have all provided statements verifying the defendant’s positive
       contributions to the Youth Deterrent program. Daryle Walton has also provided
       an email detailing defendant’s effectiveness as a mentor in both programs.

               The defendant also has a solid prison work history. Since 2011, he has
       received 363 positive work evaluations, and has been assigned as a unit porter.
       Also, since 2011, he has been consistently housed in Level II, which is the lowest
       level security that can be achieved by prisoners sentenced to life.

              Based on his positive behavior since 2007, the Court is hopeful that the
       defendant will develop the tools necessary to function as a productive, nonviolent,
       law-abiding citizen if he is granted the opportunity for parole in the future.

Yet, in spite of his positive behavior since 2007, the trial court expressed reservations about
defendant’s potential for rehabilitation:

       The brutal nature of this offense, the defendant’s extensive criminal behavior
       predating this offense, and his consistent denial of responsibility for this murder
       for many years after his conviction are all factors that cause the Court concern
       relative to his potential for rehabilitation.

               In addition, the defendant has accrued 12 prison misconducts during his
       nearly 19 years of incarceration. Defendant’s most serious misconducts include
       assault and battery, fighting, threatening behavior, possession of a weapon, and
       assault resulting in serious injury to a prisoner.

        We disagree with defendant that the trial court “minimiz[ed]” his rehabilitation. To the
contrary, the trial court acknowledged defendant’s progress at length, noting not only the
programs that he has participated in, but the positive impressions that he left on the people
running those programs. While defendant would have preferred the trial court to only look at his
record since his 2007, the trial court instead reviewed the totality of defendant’s prison record,
and connected that to the earlier failures to rehabilitate defendant. The trial court thus took a
holistic approach to considering defendant’s potential for rehabilitation, and found that, when not
focusing only on defendant’s positive improvements, there was reason for concern. This
conclusion was within the range of reasonable and principled decisions, and therefore the trial
court did not abuse its discretion. Skinner, 502 Mich at 133.
                                                -6-
                               VI. DE FACTO LIFE SENTENCE

        Lastly, defendant argues that the trial court abused its discretion in sentencing him to 40
to 60 years’ imprisonment because, given the reduced life expectancy of prisoners, the sentence
amounted to a de facto life sentence. Yet defendant cites no authority, binding or otherwise, for
his assertion that a 40-year sentence amounts to a de facto life sentence. And even if he did,
defendant does not explain how the trial court’s sentence was in error; defendant does not argue
that the sentence violates the principle of proportionality, nor does he contend that the sentence
violated Miller.2 In short, defendant’s argument does not present any ground for relief.

       Affirmed.



                                                            /s/ Colleen A. O’Brien
                                                            /s/ Karen M. Fort Hood
                                                            /s/ Thomas C. Cameron




2
  Defendant contends that a de facto life sentence would not “meaningfully” apply Miller to him
because Miller requires that a juvenile defendant have “some meaningful opportunity to obtain
release . . . .” Miller, 567 US at 479 (quotation marks and citation omitted). We note, however,
that Miller prefaced that statement with, “A state is not required to guarantee eventual
freedom[.]” Id (quotation marks and citation omitted). This Court recently held that a defendant
sentenced to life with the possibility of parole has some meaningful opportunity to obtain
release, see People v Williams, 326 Mich App 514, 522; 928 NW2d 319 (2018), and we see no
reason why defendant’s 40 to 60-year sentence does not present the same opportunity.


                                                -7-
