                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 10, 2015
               Plaintiff-Appellee,

v                                                                  No. 322455
                                                                   Kent Circuit Court
DEVONTE JAQUEZ WARREN,                                             LC No. 13-006857-FC

               Defendant-Appellant.


Before: BOONSTRA, P.J., and MURPHY and MARKEY, JJ.

PER CURIAM.

       Following a jury trial, defendant Devonte Jaquez Warren was convicted of first-degree
premeditated murder, MCL 750.316; conspiracy to commit first-degree premeditated murder,
MCL 750.316 and 750.157a; and possession of a firearm during the commission of a felony,
MCL 750.227b. He was sentenced as a second-offense habitual offender, MCL 769.10, to life in
prison without parole for first-degree premeditated murder and conspiracy to commit first-degree
premeditated murder, and to two years’ imprisonment for possession of a firearm during the
commission of a felony. Defendant appeals by right. We vacate his sentences for first-degree
murder and conspiracy to commit first-degree murder and remand for further proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

         Defendant shot and killed the victim, Gregory Woods, at his home in Grand Rapids. The
prosecution introduced evidence at trial that the shooting was gang-related and was committed in
retaliation for the killing of a member of defendant’s gang two years earlier. The victim’s
mother testified that someone knocked on her door during dinner. When the victim opened the
door and stepped outside, he was shot and later died at the hospital. A witness, Ali Gray,
testified that on the day of the shooting he had met defendant at a candlelight vigil for a gang
member who had been shot two years before. He testified that defendant told him to “watch the
news,” that he understood this to mean defendant was going to shoot someone, that defendant
left the vigil with another gang member, and that they were both armed with handguns. Gray
further testified that the next day defendant told him that he had knocked on Woods’s door and
shot him. Facebook messages between defendant and Gray indicating defendant’s plan to shoot
someone were read into the record at trial. Defendant was 17 years old at the time of the offense.

      After defendant was found guilty of first-degree premeditated murder, conspiracy to
commit first degree premeditated murder, and felony-firearm, the prosecution filed a motion
under MCL 769.25 to sentence defendant to life in prison without the possibility of parole. As
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required by MCL 769.25, the trial court conducted a hearing on the motion as part of the
sentencing process. After presenting testimony from defendant’s juvenile probation agent, the
prosecution argued that several of the factors outlined in Miller v Alabama, 576 US __; 132 S Ct
2455; 183 L Ed 2d 407 (2012), favored sentencing defendant to life imprisonment without the
possibility of parole, including defendant’s extensive past criminal history and the failure of
repeated efforts at rehabilitation. Defense counsel argued that defendant’s youth, lack of role
models, and lack of supervision and guidance weighed against that sentence.

         After hearing arguments from both parties, the trial court stated the requirements of
MCL 769.25 on the record and noted that the statute directs the trial court to consider the factors
in Miller, 132 S Ct 2455. The trial court found that defendant was on the high end of the
juvenile status, and that there was a significant difference between a 17-year-old and a 14-year-
old. Next, the trial court acknowledged issues with defendant’s mother and father, which created
a lack of structure for defendant. The trial court stated that defendant’s lack of positive male
guidance was a factor weighing against sentencing him to life imprisonment without parole.
Addressing defendant’s mental and emotional development, the court referred to the probation
agent’s testimony and stated that it was “something of a mixed bag.” The trial court next stated
that the factors of the circumstances of the crimes and moral culpability weighed heavily in favor
of life imprisonment without parole. It noted that this was a planned murder “in connection with
the anniversary of another gang related event.” The trial court further stated that defendant’s
communications show that this was not an “impulsive or spur of the moment crime.” Addressing
defendant’s criminal history, the trial court noted defendant’s participation in a brutal gang rape
of a 15 year-old girl in 2010, which occurred in front of the victim’s friends, as well as other
criminal acts that defendant had committed as a juvenile, including his involvement in violent
offenses involving firearms. The trial court found that defendant’s criminal history compared
unfavorably to the defendants in Miller. Next, the trial court addressed defendant’s chances for
rehabilitation and found them to be low. The trial court ultimately concluded that a sentence of
life without the possibility of parole was appropriate. This appeal followed, limited to the issue
of whether defendant should have received a life sentence with the possibility of parole.

                         II. APPLICATION OF PEOPLE V SKINNER

       Defendant argues on appeal that the trial court abused its discretion by imposing a life
sentence without the possibility of parole when he was less than 18 years old at the time of the
offense. While it had not been decided at the time of the appellate briefing in this matter, we
hold that this Court’s recent decision in People v Skinner, ___ Mich App ___; ___ NW2d ___
(Docket No. 317892) (2015), requires that we vacate defendant’s life without parole sentences
and remand for resentencing.

       In Skinner, a majority of a divided panel of this Court stated:

       To summarize, the default sentence for a juvenile convicted of first-degree murder
       under MCL 750.316 is a term-of-years prison sentence. MCL 769.25 authorizes a
       trial court to enhance that sentence to life without parole based on factual findings
       that were not made by a jury but rather were found by a judge. In this respect, the
       statute offends the Sixth Amendment as articulated in Apprendi and its progeny.
       In order to enhance a juvenile's default sentence to life without parole, absent a
       waiver, a jury must make findings on the Miller factors as codified at

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       MCL 769.25(6) to determine whether the juvenile's crime reflects “irreparable
       corruption” beyond a reasonable doubt. Accordingly, because defendant's
       sentence for first-degree murder was imposed in a manner that violated the Sixth
       Amendment, she is entitled to resentencing on that offense. [Id., slip op at 22.]

The Skinner majority also found that subsections (6) and (7) of MCL 769.25 were severable from
the remainder of the statute. Id., slip op at 23. Therefore, on remand, the trial court should
follow the following procedure:

       [F]ollowing a conviction of first-degree murder and a motion by the prosecuting
       attorney for a life without parole sentence, absent defendant's waiver, the court
       should impanel a jury and hold a sentencing hearing where the prosecution is
       tasked with proving that the factors in Miller support that the juvenile's offense
       reflects “irreparable corruption” beyond a reasonable doubt. During this hearing,
       both sides must be afforded the opportunity to present relevant evidence and each
       victim must be afforded the opportunity to offer testimony in accord with
       MCL 769.25(8). Following the close of proofs, the trial court should instruct the
       jury that it must consider, whether in light of the factors set forth in Miller and
       any other relevant evidence, the defendant's offense reflects irreparable corruption
       beyond a reasonable doubt sufficient to impose a sentence of life without parole.
       Alternatively, if the jury decides this question in the negative, then the court
       should use its discretion to sentence the juvenile to a term-of-years in accord with
       MCL 769.25(9).

Skinner is binding on this Court. MCR 7.215(C)(2). And “changes to a criminal law are
generally given retrospective application to cases pending on appeal as of the date of the filing of
the opinion containing the new rule.” People v Carruthers, 301 Mich App 590, 615; 837 NW2d
16 (2013). We therefore conclude that Skinner requires us to vacate defendant’s sentences and
remand for proceedings as described above and consistent with Skinner and the remaining
portions of MCL 769.25..

        Vacated and remanded for further proceedings consistent with Skinner. We do not retain
jurisdiction.

                                                             /s/ Mark T. Boonstra
                                                             /s/ William B. Murphy
                                                             /s/ Jane E. Markey




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