            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 2, 2019
              Plaintiff-Appellee,

v                                                                  No. 339934
                                                                   Wayne Circuit Court
GERALD MERRELL,                                                    LC No. 90-007914-01-FC

              Defendant-Appellant.


Before: GLEICHER, P.J., and K. F. KELLY and LETICA, JJ.

PER CURIAM.

       Following a jury trial, Gerald Merrell was convicted of first-degree premeditated murder,
MCL 750.316(1)(a). Merrell, who was 17 years old at the time of the murder, was sentenced to a
term of life in prison without the possibility of parole. On direct appeal, this Court affirmed
Merrell’s conviction and sentence. People v Harper, unpublished per curiam opinion of the
Court of Appeals, issued November 10, 1993 (Docket Nos. 136574 and 137566), pp 1-2.1 On
July 12, 2017—in light of the United States Supreme Court’s decisions in Miller v Alabama, 567
US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US ___;
136 S Ct 718; 193 L Ed 2d 599 (2016), and the Michigan Legislature’s concomitant enactment
of MCL 769.25 and MCL 769.25a—Merrell was resentenced to 37 to 60 years’ imprisonment
with credit for 9,865 days served. Merrell now appeals as of right. We affirm.




1
 Merrell was charged along with two codefendants, 22-year-old Steven Harper and 16-year-old
John Woosck. Woosck, who provided the knife used to stab the victim and verbally encouraged
Merrell during the murder, pleaded guilty to first-degree murder and was sentenced to five years’
probation. Separate juries convicted Merrell and Harper of the same offense. Both Merrell and
Harper appealed their convictions, and their appeals were consolidated. People v Harper,
unpublished order of the Court of Appeals, entered April 14, 1992 (Docket Nos. 136574 and
137566).
       Merrell’s sole argument is that the trial court abused its discretion in resentencing him
because a sentence of 37 to 60 years’ imprisonment is disproportionate to Merrell and the
offense committed. We disagree.

        A juvenile offender’s resentencing under MCL 769.25a is reviewed for an abuse of
discretion. People v Skinner, 502 Mich 89, 131; 917 NW2d 292 (2018). “ ‘[A] given sentence
can be said to constitute an abuse of discretion if that sentence violates the principle of
proportionality, which requires sentences imposed by the trial court to be proportionate to the
seriousness of the circumstances surrounding the offense and the offender.’ ” Id. at 131-132,
quoting People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990) (alteration in original).
“[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.” Skinner, 502 Mich at 133 (quotation marks and citation omitted). “An abuse of
discretion occurs . . . when the trial court chooses an outcome falling outside this principled
range of outcomes.” Id. (quotation marks and citation omitted).

        Because Miller applies retroactively, Montgomery, 577 US at ___; 136 S Ct at 732, a
defendant previously sentenced to life without the possibility of parole for an offense committed
when the defendant was less than 18 years old is entitled to resentencing. MCL 769.25a(2). The
prosecution may seek the same life-without-parole sentence by filing a motion within a defined
period of time. MCL 769.25a(4)(b). However, if the prosecution does not file such a motion,
“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.”
MCL 769.25a(4)(c). Although the trial court is not constitutionally obligated to make findings
regarding the factors identified by the United States Supreme Court in Miller when resentencing
a juvenile offender to a term of years, the “attributes of youth, such as those described in Miller,”
remain relevant. People v Wines, 323 Mich App 343, 352; 916 NW2d 855 (2018).2 In
explaining why children are constitutionally different from adults for purposes of sentencing, the
Miller Court said:

       Because juveniles have diminished culpability and greater prospects for
       reform, . . . “they are less deserving of the most severe punishments.” [Supreme
       Court precedent has] relied on three significant gaps between juveniles and adults.
       First, children have a “ ‘lack of maturity and an underdeveloped sense of
       responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking.
       Second, children “are more vulnerable . . . to negative influences and outside
       pressures,” including from their family and peers; they have limited “contro[l]
       over their own environment” and lack the ability to extricate themselves from



2
  Although we recognize that an application and cross-application for leave to appeal are pending
in our Supreme Court, MCR 7.215(J)(1) requires us to “follow the rule of law established by a
prior published decision of the Court of Appeals issued on or after November 1, 1990, that has
not been reversed or modified by the Supreme Court, or by a special panel of the Court of
Appeals as provided in this rule.”


                                                -2-
       horrific, crime-producing settings. And third, a child’s character is not as “well
       formed” as an adult’s; his traits are “less fixed” and his actions less likely to be
       “evidence of irretrievabl[e] deprav[ity].” [Miller, 567 US at 471 (citations
       omitted; some alteration in original).]

This Court has explained that, even when the possibility of a life-without-parole sentence is not
at issue under MCL 769.25a, “consideration of these characteristics is in harmony with
Michigan’s long-established sentencing aims.” Wines, 323 Mich App at 351.

       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. [Wines, 323 Mich App at 351-352.]

Accordingly, “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.” Id. at 352.
        Here, the trial court did not impose a disproportionate sentence when it resentenced
Merrell to 37 to 60 years’ imprisonment. At the time of resentencing, Merrell was 44 years old
and had been incarcerated for 27 years. The trial court acknowledged that, given the Miller
decision, “a case for retribution is not as strong with a 17[-]year[-]old as it is with an adult.” The
trial court also acknowledged Merrell’s efforts at rehabilitation, noting that he obtained his GED
after arriving at prison with an eighth-grade education, that he maintained employment
throughout his incarceration, and that his behavior and conduct while incarcerated vastly
improved. In particular, Merrell had not received any recent misconduct tickets and his earlier
28 citations were not for violent behavior.

        However, the trial court quickly shifted its focus to the murder, stating that it “was a
planned, deliberate, ruthless[,] and brutal murder” that “deserves a punishment more than the
minimum sentence . . . or time served as suggested by the defense in this matter.” The trial court
also acknowledged the devastating impact the murder had on the 25-year-old victim’s family,
particularly his children. Despite Merrell’s participation in educational, volunteer, and work


                                                 -3-
opportunities offered during his incarceration, the trial court noted the jury’s first-degree
premeditated murder verdict must also be considered.

        The trial court considered the Miller and Snow factors, thoughtfully weighing Merrell’s
youth at the time of the offense, his potential for rehabilitation, and the need for punishment
based on the severity of his crime. Wines, 323 Mich App at 351-352. The trial court first
acknowledged Merrell’s rehabilitative efforts since his incarceration. The trial court then
balanced his potential for reformation and rehabilitation against the severity of the crime, stating
that more than the minimum sentence was required to punish Merrell. It also prefaced its
resentencing decision by stating that the goal of retribution was lessened by the fact of Merrell’s
youth at the time of the offense. Further, the trial court read the trial transcripts and relied on all
the information contained in the presentence investigation report (PSIR), which indicated Merrell
did not have a prior criminal record, did not have mental health or substance abuse issues, and
discussed his family background. Taking all of these factors into consideration, the trial court
properly determined that a sentence of 37 to 60 years’ imprisonment was appropriate.

        In reaching this conclusion, we find a comparison between the circumstances at issue in
Wines and those involved in this matter helpful. The defendant in Wines was charged with first-
degree murder under a theory of aiding and abetting when he and his codefendant carjacked,
robbed, and murdered a young woman who offered them a ride. Id. at 354. The defendant did
not commit the killing; rather, he stood from a distance while his codefendant, who “appeared to
be ‘in charge,’ ” fired two gunshots, killing the victim. Id. at 353-354. The defendant also called
the police the day after his codefendant shot the victim, assisted them in their investigation, and
confessed to his role in the crimes. Id. at 356.

        Here, on the other hand, the trial court recognized that Merrell was not convicted under
an aiding-and-abetting theory, but was in fact the principal offender. As Harper restrained the
incapacitated victim, who was highly intoxicated,3 Merrell stabbed him, eight times—six times
in the neck, once in the face, and once in the hand. Soon after, Merrell shared with a long-term
acquaintance and fellow Young Guns’ gang member that he and Woosck “killed somebody.”
Later, Woosck confirmed this and, by way of explanation, Merrell offered that the victim had
touched, kissed, or grabbed Merrell’s “girlfriend.”4 In Merrell’s presence, Woosck explained
that the murder was planned beforehand and that the restrained victim “woke up” upon being
stabbed the first time. According to Woosck, the victim recognized he was bleeding and pleaded
with his assailants not to kill him before Merrell stabbed him again.



3
  After the victim’s body was found, the medical examiner determined the victim’s blood-alcohol
level was 0.27.
4
  The trial testimony revealed that the mother of Merrell’s recent acquaintance reported that the
victim had gotten “fresh” with her. However, the woman testified that “fresh” was not the word
she meant to use and she further explained that she had accidentally sat on the victim’s hand
before he quickly moved it. Even so, the woman admitted that she told the police the victim was
trying to put his hands on her butt. Moreover, the woman recalled Harper telling Merrell that the
victim had been “messing around with” her to which she responded that she could handle herself.


                                                 -4-
        Although Merrell suggests that he, like the defendant in Wines, 323 Mich App at 353,
may have been pressured into committing the murder,5 Merrell was the principal perpetrator.
While we recognize that Merrell’s argument concerning peer pressure is relevant, Miller, 567 US
at 471 (discussing a juvenile’s vulnerability to negative influences and outside pressures), such
mitigating circumstances do not supplant the fact that Merrell ultimately acted to kill his
incapacitated victim and did so in an exceptionally brutal manner.

        Also, unlike the trial court in Wines, 323 Mich App at 356-357, the trial court in this case
prefaced its resentencing decision with all of Merrell’s accomplishments since his incarceration.
The trial court indicated that it considered all the information in the PSIR, the allocutions of
defense counsel and the prosecution, Merrell’s statements, and the statements from the victim’s
family in making its decision. Thus, it clearly considered the relevant factors as previously
established by this Court. Id. at 351-352. Further, while the sentence of 37 to 60 years’
imprisonment exceeded the prosecution’s recommendation of 35 to 60 years’ imprisonment, the
sentence was nonetheless within the range required by MCL 769.25a. On this record, Merrell’s
sentence is within the range of reasonable and principled outcomes.

       Affirmed.



                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Anica Letica




5
  After Merrell was arrested, he told the police he murdered his victim out of fear that Harper
would kill him. Merrell’s attorney later alleged that Harper had not only threatened Merrell, but
also Merrell’s family. Importantly, “duress is not a valid defense to homicide in Michigan.”
People v Dittis, 157 Mich App 38, 41; 403 NW2d 94 (1987). In any event, an eyewitness
testified that after Harper mentioned it was time “to start messing with” the victim, Merrell
replied that he “couldn’t do it.” Harper called Merrell “a wimp” who “chickened out.” Without
further communication, once everyone resumed their respective positions in the eyewitness’s car,
Harper quickly restrained the victim and Merrell repeatedly stabbed him.


                                                -5-
