            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    October 8, 2019
               Plaintiff-Appellee,

v                                                                   No. 322891
                                                                    Oakland Circuit Court
JONATHAN DEWIG HICKERSON,                                           LC No. 2013-244355-FC

               Defendant-Appellant.



                                         ON REMAND


Before: STEPHENS, P.J., and SERVITTO and BECKERING, JJ.

PER CURIAM.

       This matter returns to this Court on remand from our Supreme Court for consideration of
whether the trial court abused its discretion in sentencing the then 17 year old defendant,
Jonathan Dewig Hickerson, to life without the possibility of parole for his conviction of first-
degree felony murder, MCL 750.316(1)(b). People v Hickerson, 503 Mich 912; 919 NW2d 787
(2018). We affirm the sentence.

                                       I. BACKGROUND

       The defendant was tried with a codefendant, Donald Lee James II (James). The two were
sentenced at the same hearing, which was held on July 16, 2014. This Court previously
considered defendant’s challenges to his convictions and sentences in People v James II,
unpublished per curiam opinion of the Court of Appeals, issued January 21, 2016 (Docket Nos.
322890 and 322891). Defendant was tried jointly, but before a separate jury, with James for
what was a botched home invasion. Defendant, who was roughly three weeks shy of his 18th
birthday, initially proposed robbing a home to two other friends, James (then aged 16) and
Anthony Herald (Herald) (then aged 17).

        At their trial, Herald testified that defendant planned the robbery. Defendant believed the
targeted home would have weapons, marijuana, and money inside. Defendant directed both


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Herald and James as to how to execute the robbery and purchased the ski masks to be worn
during the crime. Herald testified to the trio surveilling the home prior to the planned robbery.
Herald indicated at that time that he did not want to participate in the crime. Defendant called
him a “b****” and later dropped Herald off at his home. Herald testified that he tried to get the
defendant and James to abandon the plan. However, the next morning James came to Herald’s
home and told him that he and defendant “f***ed up” and that defendant had been shot.

       The surviving victims of the robbery testified at trial. Megan Contreras (Megan), who
was pregnant, testified that she was asleep when she heard a loud noise and saw two men
walking into her bedroom. One assailant turned on the light, and she saw both had on black
masks. One assailant was holding a large gun. Megan and her husband, Adrian Contreras
(Adrian), were told to raise their hands. Megan hid underneath a blanket and then felt someone
jump on her stomach and legs. She heard a number of gunshots. After the shooting stopped, she
came out from under the blanket and saw Adrian dead on the floor.

        David Contreras (David) testified to being awoken by a loud thud. He walked out in the
hallway and saw two men in masks. One man shot a rifle at him, but missed. David crawled
into a nearby bathroom and heard 10 to 12 more shots. During a quiet moment, David went
across the hall to a bedroom where his brother, Brian Contreras (Brian), was located. Brian gave
David a pistol while Brian loaded a shotgun. David heard 8 or 10 more shots coming from the
rear of the house. Brian jumped out a window and ran to the backyard. David saw an assailant
with a rifle in the hallway. David ran into the assailant and knocked him out of the back door to
the house and into the backyard. David heard a voice saying, “Don’t shoot,” followed by several
gunshots, and then what sounded like a round fired from Brian’s shotgun. David ran into the
backyard and found the assailant, still armed with the rifle. The assailant attempted to fire at
David, but the weapon only clicked. David pulled the rifle away from the assailant, punched
him, and then saw the assailant’s face. David identified defendant as this assailant at trial.
David heard another gunshot and saw the second assailant jump over a fence and drive away in a
silver car. Brian’s testimony was consistent with that of his brother David including the
identification of the defendant.

         Responding police officers arrested defendant in the backyard of the home. They
recovered an AR-15 assault rifle that was on the ground near defendant. A ski mask was
recovered from a nearby alley. DNA testing of the mask found a single donor, which was
identified as James. James was arrested on October 25, 2012. He was found hiding under a
mattress in the basement of his aunt’s home in Pontiac. Defendant was convicted by a jury of six
counts with the following sentences: first-degree felony murder, MCL 750.316(1)(b), (life
without parole); assault with intent to commit murder (AWIM), MCL 750.83, (23 to 50 years);
first-degree home invasion, MCL 750.110a(2), (11 to 20 years); and three counts of possession
of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, (2 years each).

       On April 22, 2014, the prosecutor filed a motion seeking a sentence of life without parole
pursuant to MCL 769.25. Defendant responded by requesting a hearing to present all facts and
evidence that would warrant a term-of-years sentence. On May 29, 2014, the trial court entered
an order adjourning sentencing so that a psychological evaluation could be completed. The
evaluating doctor was directed to address the relevant factors provided in Miller v Alabama, 567
US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012).

                                               -2-
        Dr. Gerald A. Shiener evaluated defendant and authored a report dated June 11, 2014.
Dr. Shiener’s report indicated that the defendant gave inconsistent reports regarding the actual
crime, finally settling on a version that admitted that he brought the AR-15 rifle with him to the
targeted house, and committed the robbery. The bulk of the report detailed the defendant’s
cacophonous history. Defendant’s father, who was 50 years’ old when defendant was born, was
an alcoholic and his teenaged mother abused narcotics. Defendant’s father was never around,
and defendant was raised by his mother and grandmother. Defendant was placed in Children’s
Village at age 14 after he assaulted his stepfather, tried to steal a car, and ran from police. He
had assaulted his mother prior to that incident. Defendant threatened to kill himself once in the
past. He self-reported that he had used marijuana, ecstasy, Xanax, “Molly,” and synthetic
marijuana. He had been in psychiatric care since age 14. He received special education services
in school and repeated kindergarten and third grade. He had issues in school, including bringing
BB guns to school and fighting with other students. He lived in his grandmother’s basement,
which tended to flood. Defendant reported hallucinations and to having seen Satan. He
described an abusive home environment where his grandfather would physically assault
defendant’s mother. The report then states, “he had a history of car theft ‘stealing automobiles to
sell to chop shops and selling marijuana. He was said to have a history of fire setting and
physical abuse.”

        Dr. Shiener noted that defendant did not display any “gross disorder of thinking.” He
also did not appear to have any depression or sadness. His affect remained appropriate. In
describing the crime, defendant was concerned with the confidentiality of the interview and how
his statements could affect his appeal. Defendant described many incidents that exhibited what
Dr. Shiener described as “uninhibited aggression.” While reporting hallucinations in the past,
defendant did not report presently experiencing any secondary psychotic symptoms. According
to Dr. Shiener, defendant did “not show any signs of any cognitive disturbance.” With regard to
the Miller factors, Dr. Shiener explained that defendant’s record and character demonstrated
disregard for others. His age was nearly 18 at the time of the offenses. He clearly came from a
dysfunctional family background. The circumstances of the offense were horrific. While
defendant claimed that no one was supposed to get hurt, he came into the home armed and fired
the gun when he was confronted. He also disparaged a peer when that individual elected not to
participate. With regard to whether defendant could have been charged or convicted of a lesser
offense, Dr. Shiener found no “redeeming factors in this area of consideration.” With regard to
defendant’s potential for rehabilitation, Dr. Shiener found that defendant’s history and pattern of
antisocial behavior showed a “limited” potential for rehabilitation. Dr. Shiener opined that
defendant was “not likely to ever gain the degree of self-control and the ability to inhibit
impulses that would be necessary for him to live in society without demonstrating the kind of
poor impulse control and tendency to impulsive action that leads to the harm of others.” Dr.
Shiener additionally noted that defendant’s seizure disorder “would also be limiting on [his]
rehabilitation potential.”

        On July 15, 2014, the prosecutor filed a sentencing memorandum explaining why the
prosecutor believed a life-without-parole sentence was appropriate. Sentencing for both
defendants was conducted on July 16, 2014. James, then aged 16, spoke at sentencing and
apologized for his actions. The trial court sentenced James to a term-of-years sentence for his
first-degree murder conviction. Defendant, on the other hand, was sentenced to life without
parole. The trial court explained that defendant was the leader of the offense, the “star actor of

                                                -3-
this nightmare.” The court noted that defendant had a troubled childhood, several juvenile
offenses, and dropped out of school after completing 10th grade. The court believed the crime
was committed in a depraved manner. Defendant fired the bullets that killed Adrian. The court
also read the portions of Dr. Shiener’s report regarding whether defendant could have received a
conviction to a lesser offense and his likelihood of rehabilitation, apparently adopting those
findings. The trial court then sentenced defendant to life without the possibility of parole for
murder.

        On appeal, defendant raised two issues: (1) that trial counsel was ineffective for arguing
to the jury that defendant was guilty of murder in the second degree and home invasion, and (2)
that his life-without-parole sentence was an abuse of the trial court’s sentencing discretion under
Miller. This Court found that counsel was not ineffective given the weight of the evidence
against the defendant but agreed that the court erred in the process used to arrive at the life-
without-parole sentence. This Court relied on the opinion in People v Skinner, 312 Mich App
15; 877 NW2d 482 (2015), rev’d 502 Mich 89; 917 NW2d 292 (2018), in which this Court held
that the Sixth Amendment required the question of whether a juvenile should be sentenced to life
without parole must be decided by a jury rather than a judge.

        The prosecutor appealed, and on May 31, 2017, our Supreme Court held the application
in abeyance pending its decision in Skinner which was under review at that time. People v
Hickerson, 895 NW2d 526 (Mich, 2017). On June 20, 2018, our Supreme Court decided
Skinner, 502 Mich 89. Relevant to this matter, the Court reached two conclusions. First, the
Court rejected the notion that a jury must decide whether a juvenile offender receives a sentence
of life without parole; rather, it is the trial court’s role to make that determination, and doing so
does not violate the Sixth Amendment. Id. at 96-97. Second, the Court rejected this Court’s
decision in People v Hyatt, 316 Mich App 368; 891 NW2d 549 (2016), to the extent Hyatt
imposed a heightened standard of review for such sentences, requiring the trial court to
determine whether a juvenile was the rare, incorrigible juvenile discussed in Miller. Skinner,
502 Mich at 97. Rather, our Supreme Court determined that the proper mode of review on
appeal is for an abuse of the trial court’s discretion, applying the “traditional abuse-of-discretion
standard of review[]” discussed in People v Babcock, 469 Mich 247, 267-270; 666 NW2d 231
(2003). Skinner, 502 Mich at 97, 127-138.

        After releasing Skinner, our Supreme Court vacated that portion of this Court’s opinion in
the instant appeal concerning defendant’s sentence and remanded the matter to this Court to
“review the defendant’s sentence for first-degree murder for an abuse of discretion.” Hickerson,
919 NW2d at 787-788. The prosecutor filed a supplemental brief on remand.

                                  II. STANDARD OF REVIEW

         As was explained in Skinner, 502 Mich at 127-132, this Court does not review de novo
the trial court’s decision to sentence a juvenile offender to life without parole. Rather, this Court
must determine whether the trial court abused its discretion using the traditional abuse-of-
discretion framework. Id. at 132-138. In Skinner, the Court quoted Babcock (which concerned
departures from the sentencing guidelines) for its explanation of the standard:



                                                 -4-
[T]he trial court is optimally situated to understand a criminal case and to craft an
appropriate sentence for one convicted in such a case . . . .

        It is clear that the Legislature has imposed on the trial court the
responsibility of making difficult decisions concerning criminal sentencing,
largely on the basis of what has taken place in its direct observation. Review de
novo is a form of review primarily reserved for questions of law, the
determination of which is not hindered by the appellate court’s distance and
separation from the testimony and evidence produced at trial. The application of
the statutory sentencing guidelines to the facts is

       not a generally recurring, purely legal matter, such as interpreting a
       set of legal words, say, those of an individual guideline, in order to
       determine their basic intent. Nor is that question readily resolved
       by reference to general legal principles and standards alone.
       Rather, the question at issue grows out of, and is bounded by, case-
       specific detailed factual circumstances. [Buford v United States,
       532 US 59, 65; 121 S Ct 1276; 149 L Ed 2d 197 (2001).]

         Because of the trial court’s familiarity with the facts and its experience in
sentencing, the trial court is better situated than the appellate court to determine
whether a departure is warranted in a particular case. Accordingly, review de
novo, in which a panel of appellate judges could substitute its own judgment for
that of the trial court, is surely not the appropriate standard by which to review the
determination that a substantial and compelling reason exists to justify a departure
from the guidelines range. Instead, the appellate court must accord this
determination some degree of deference.

        . . . . At its core, an 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. When the trial
court selects one of these principled outcomes, the trial court has not abused its
discretion and, thus, it is proper for the reviewing court to defer to the trial court’s
judgment. An abuse of discretion occurs, however, when the trial court chooses
an outcome falling outside this principled range of outcomes . . . .

        Accordingly, the Court of Appeals must determine, upon a review of the
record, whether the trial court had a substantial and compelling reason to depart
from the guidelines, recognizing that the trial court was in the better position to
make such a determination and giving this determination appropriate deference.
The deference that is due is an acknowledgment of the trial court’s extensive
knowledge of the facts and that court’s direct familiarity with the circumstances
of the offender. The Court of Appeals is to conduct the thorough review required
by MCL 769.34(11), honoring the prohibition against departures not grounded in
a substantial and compelling reason. MCL 769.34(3). In doing so, however, the
Court must proceed with a caution grounded in the inherent limitations of the


                                          -5-
       appellate perspective. [Skinner, 502 Mich at 132-134, quoting Babcock, 469
       Mich at 267-270.]

        The same analytical framework applies in situations concerning whether a juvenile
offender should receive a sentence of life without parole or a term-of-years sentence. Skinner,
502 Mich at 134. “The trial court remains in the best position to determine whether each
particular defendant is deserving of life without parole.” Id. at 137. Thus, “the decision to
sentence a juvenile to life without parole is to be made by a judge,” and “this decision is to be
reviewed under the traditional abuse-of-discretion standard.” Id.

                                         III. ANALYSIS

       There are a number of factors that are to be considered by the trial court when deciding
what sentence is appropriate for a juvenile convicted of first-degree murder:

       (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 . . . .” Miller,
       567 US at 477-478. [Skinner, 502 Mich at 114-115.]

        When applied, many of these factors recommend a life sentence without parole for this
defendant. It is important to note that defendant was only three weeks away from his 18th
birthday when he chose to go forward with the robbery. Had the crime been committed a month
later, defendant would have received a mandatory sentence of life without parole, and there
would be no further discussion. Cf. MCL 750.316(1)(b); MCL 769.25 and MCL 769.25a.
Logically, it seems unlikely that anything would have changed in the last month or so of
defendant’s childhood that would have significantly altered his thought process or decision-
making with respect to whether to commit such a crime.

        The circumstances of the crime mediate toward the sentence imposed by the trial court.
The defendant was the organizer of the crime. He was clearly aware that the home was occupied
and yet, even after one of his cohorts withdrew from the crime, defendant returned that very
night to execute the robbery. Either he or his companion brutally assaulted a pregnant woman
and shot her spouse as she lay under a blanket next to him. Once out of the home, defendant lay
in the grass still attempting to shoot at house occupants exiting the home.

        The defendant had been in contact with the juvenile justice system for years. He had
been placed under court supervision and in programs aimed at addressing his behavior. Yet
rather than stop following the path he was on, defendant’s criminal activity escalated. He
progressed from truancy, to assault, to stealing motor vehicles, and then finally, to committing an

                                                -6-
armed robbery of a home known to be occupied and to contain weapons. In the process,
defendant ignored the likely consequence—death of a human being, whether himself or anyone
else that was inside the home—despite several opportunities to take a second look and abandon
the plan. Even despite seeing one of his friends reach the conclusion that the plan was unwise,
defendant not only moved forward, but berated his friend for refusing to continue. This set of
facts could easily lead one to believe that defendant has little hope of rehabilitation, as the trial
court and court-appointed psychologist concluded.

        On the other hand, defendant was clearly raised in an environment that was detrimental to
him. His mother was a young, drug-addicted parent who was largely absent from his life. His
father was several decades senior to his mother, and was also absent for most of defendant’s life.
Defendant witnessed physical abuse, with his mother being physically abused by her own father.
Defendant was raised largely by his grandmother. As the trial court noted, defendant had
virtually no proper parentage. Defendant also had mental health problems, including a seizure
disorder, and other diagnosed issues, although at the time of his psychological evaluation, the
psychologist found little evidence that defendant’s thought process was affected by any
disorders. Defendant also had his own history of drug use, which could have played into his
decision-making process at the time he decided to commit the crimes.

         Defendant has argued that his blindness renders him less able to re-offend and infers that
he is, therefore, more susceptible to rehabilitation. Miller and the statute allow consideration of
his physical status when determining a sentence, MCL 769.25(6) (directing the trial court to
consider the Miller factors and “any other criteria relevant to its decision . . . .”). Defendant’s
blindness resulted from injuries sustained during the commission of the crimes for which he was
sentenced. We agree that defendant’s blindness may make it more difficult for him to commit
certain crimes in the future, but it does not necessarily alter his thought processes or proclivity
for committing crimes. Nor does it lessen his culpability for the crimes he chose to commit.

        In sum, this case presented what was likely a close call for the trial court. An analysis of
the Miller factors does not clearly preponderate against or in favor of a life-without-parole
sentence, nor does it clearly point toward one. Were this Court to engage in a de novo review of
the record, perhaps it would reach a different result than the trial court did in this case but, this
Court’s role is not to engage in a de novo review. Rather, we must review the case for an abuse
of discretion. Skinner, 502 Mich at 137. This standard necessarily recognizes that there is a
range of possible correct outcomes. Id. at 133. The trial court was clearly appraised of the
relevant facts, considered them, and reached an outcome falling within that range.

       Affirmed

                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Deborah A. Servitto
                                                              /s/ Jane M. Beckering




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