            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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  November 19, 2019
              Plaintiff-Appellee,

v                                                                 No. 344348
                                                                  Saginaw Circuit Court
KENNETH LEE HENDRICK,                                             LC No. 01-019726-FC

              Defendant-Appellant.


Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

       This appeal stems from defendant’s resentencing pursuant to Miller v Alabama, 567 US
460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, ___ US ___; 136 S
Ct 718; 193 L Ed 2d 599 (2016). For the reasons set forth in this opinion, we affirm.

                                     I. BACKGROUND

         Defendant was convicted in 2001 of first-degree felony murder, MCL 750.316(1)(b);
armed robbery MCL 750.529; carjacking, MCL 750.529a; and two counts of carrying a
dangerous weapon with unlawful intent, MCL 750.226. Defendant was approximately 17 years
and one month old at the time of his crimes. He was originally sentenced to life imprisonment
for first-degree felony murder, 285 to 500 months’ imprisonment for armed robbery, 285 to 500
months’ imprisonment for carjacking, and 38 to 60 months’ imprisonment for each of the two
convictions for carrying a dangerous weapon with unlawful intent, with all of the sentences to
run concurrently.

        Subsequently, the United States Supreme Court held in Miller, 567 US at 465, “that
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.’ ” The Supreme Court
later held in Montgomery, ___ US at ___: 136 S Ct at 732, that “Miller announced a substantive
rule that is retroactive in cases on collateral review.”

       The Michigan legislature has enacted MCL 769.25 and MCL 769.25a, which contain
governing rules for carrying out Miller resentencing proceedings. Specifically, MCL 769.25a(2)


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provides in pertinent part that in the event that Miller was determined by the United States
Supreme Court to be retroactively applicable to all defendants who were under the age of 18
when they committed their crimes, then “the determination of whether a sentence of
imprisonment for a violation set forth in section 25(2) of this chapter[1] shall be imprisonment
for life without parole eligibility or a term of years as set forth in section 25(9) of this chapter
shall be made by the sentencing judge or his or her successor as provided in this section.” MCL
769.25a(4)(b) requires prosecuting attorneys to “file motions for resentencing in all cases in
which the prosecuting attorney will be requesting the court to impose a sentence of imprisonment
for life without the possibility of parole” for defendants entitled to be resentenced Miller. MCL
769.25a(4)(c) states that “[i]f the prosecuting attorney does not file a motion under subdivision
(b), the court shall sentence the individual to a term of imprisonment 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.”

         Defendant was resentenced pursuant to Miller on May 8, 2018. The prosecution had
initially requested that the trial court impose a life-without-parole sentence on resentencing, but
the prosecution withdrew this request before the resentencing hearing was held and sought a
term-of-years sentence instead. On resentencing, the trial court sentenced defendant to 40 to 60
years’ imprisonment for his first-degree felony murder conviction. Defendant was not
resentenced for his other convictions, and all of his sentences remained concurrent with each
other. Defendant now appeals his murder sentence imposed on resentencing.

                                   II. STANDARD OF REVIEW

        As with sentencing decisions generally, we review a trial court’s Miller resentencing
decision under MCL 769.25a for an abuse of discretion. See People v Skinner, 502 Mich 89,
131; 917 NW2d 292 (2018) (“[N]either Miller nor Montgomery requires this Court to deviate
from its traditional abuse-of-discretion standard in reviewing a trial court’s decision to impose
life without parole. This Court reviews sentencing decisions for an abuse of discretion.”);
People v Wines, 323 Mich App 343, 352; 916 NW2d 855 (2018) (“We conclude that a failure to
consider the distinctive attributes of youth, such as those discussed in Miller, when sentencing a
minor to a term of years pursuant to MCL 769.25a so undermines a sentencing judge’s exercise
of his or her discretion as to constitute reversible error.”). A trial court abuses its discretion if it
“chooses an outcome falling outside [the] principled range of outcomes.” Skinner, 502 Mich at
133 (quotation marks and citation omitted). To the extent that the trial court made any findings
of facts, these findings are reviewed for clear error. Id. at 137 n 27. Questions of law are
reviewed de novo. Id.

                                           III. ANALYSIS

       Defendant contends on appeal that the trial court abused its discretion in imposing a 40-
year minimum sentence for defendant’s murder conviction. Essentially, defendant argues that



1
    First-degree murder is one of the offenses listed in MCL 769.25(2).


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the trial court failed to properly apply the Miller factors in determining the minimum sentence to
impose.

       As our Supreme Court explained in Skinner,

       [t]he following are the factors listed in Miller: (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 (ellipsis in original).]

        In Wines, this Court held that when sentencing a minor convicted of first-degree murder
where a life-without-parole sentence is not at issue, the sentencing court must balance the
objectives set forth in People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972), and “take into
account the attributes of youth, such as those described in Miller.” Wines, 323 Mich App at 352.
The Wines Court reasoned as follows:

               Further, consideration of these characteristics [of youth, such as those
       referenced in Miller] is in harmony with Michigan’s long-established sentencing
       aims. The objectives generally relevant to sentencing were first articulated by the
       Michigan Supreme Court in People v Snow, 386 Mich 586, 592; 194 NW2d 314
       (1972), and have been often reiterated by our courts. In Snow, the Court
       explained that in imposing sentence, the court should “balance” the following
       objectives: (1) reformation of the offender, (2) protection of society, (3)
       punishment of the offender, and (4) deterrence of others from committing like
       offenses. Id. The process of properly balancing these objectives in the case of a
       minor defendant necessitates consideration of the distinctive attributes of youth.
       For example, consideration of what the Supreme Court described as youth’s
       “diminished culpability and greater prospects for reform,” Miller, 567 US at 471,
       relates directly to Snow’s consideration of reformation and the protection of
       society. Similarly, the Supreme Court’s reference to the “diminish[ed] . . .
       penological justifications for imposing the harshest sentences on juvenile
       offenders,” id. at 472, correlates with Snow’s inclusion of punishment and
       deterrence as relevant factors in a sentencing determination. Taking the
       distinctive attributes of youth into account is consistent with both Michigan’s
       long-stated sentencing objectives and the United States Supreme Court’s
       judgment that “youth matters.” Id. at 483. We conclude that a failure to consider
       the distinctive attributes of youth, such as those discussed in Miller, when
       sentencing a minor to a term of years pursuant to MCL 769.25a so undermines a


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       sentencing judge’s exercise of his or her discretion as to constitute reversible
       error. [Wines, 323 Mich App at 351-352 (ellipsis and last alteration in original).]

        In this case, contrary to defendant’s arguments, the transcript of the resentencing hearing
reflects that the trial court explicitly considered each of the Miller factors and Snow objectives in
explaining its resentencing decision. While defendant’s argument seems to imply that the trial
court’s emphasis on the seriousness of the offense was somehow improper, the circumstances of
the offense constitutes a proper consideration under Miller, 567 US at 477. Moreover, although
defendant argues that “all the crimes in the juvenile lifer cases are serious crimes,” the
circumstances of the murder in this case were particularly serious and gruesome: the victim was
stabbed in the back and beaten so severely that his brain was exposed.

        In maintaining that the trial court did not actually consider defendant’s youth and
immaturity, defendant simply argues that the trial court should have reached a different
sentencing conclusion. However, it is evident from the record that the trial court actually did
consider defendant’s youth (and youth’s characteristics) but concluded that these concerns did
not weigh in favor of mitigation because defendant was relatively close to 18 years old and the
evidence showed that defendant “lay in wait for the victim” before repeatedly assaulting the
victim and chasing him as he fled. Such actions do not reflect “hallmark[s]” of youth like
impetuousness and the failure to appreciate risks because they demonstrate planning and
foresight rather than impulsive and thoughtless behavior. Additionally, defendant has not cited
any authority for the proposition that considering a defendant’s youth and its hallmark features
must necessarily result in a lesser sentence; such a holding is not required by either Miller or
Wines. Defendant also does not claim that he was in any way pressured or influenced to commit
the murder of which he was convicted. Finally, to the extent that the remainder of defendant’s
arguments seem to suggest that the trial court improperly focused on certain factors or neglected
to mention certain other facts that defendant deemed more important, defendant’s mere
disagreement with the trial court’s conclusion is an insufficient basis for us to rule that the trial
court abused its discretion. Regardless, our review of the record leads us to conclude that the
trial court’s sentence was not an abuse of discretion. Accordingly, there was no error and
defendant is not entitled to relief.

       Affirmed.

                                                              /s/ Stephen L. Borrello
                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Deborah A. Servitto




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