                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 14, 2018
              Plaintiff-Appellee,

v                                                                  No. 337589
                                                                   Wayne Circuit Court
JAMES HOWARD,                                                      LC No. 81-172401-02-FC

              Defendant-Appellant.


Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ.

PER CURIAM.

       Defendant appeals by leave granted1 the judgment of sentence entered following
resentencing for his 1982 convictions on two counts of first-degree murder, MCL 750.316, when
he was 17-years-old.2 In 1982, defendant received mandatory sentences of life without parole
(LWOP). After the United States Supreme Court held in Miller v Alabama, 567 US 460; 132 S
Ct 2455; 183 L Ed 2d 407 (2012), that imposing mandatory LWOP sentences on juveniles was
unconstitutional, defendant was resentenced in 2016 to 40 to 60 years’ imprisonment for those
convictions. Defendant contends on appeal that he was denied constitutional protections
afforded juvenile offenders at resentencing because his 40-year sentence constitutes a de facto
sentence of LWOP. We disagree and affirm.

       This appeal arises out of the Miller decision, the Supreme Court’s decision to make
Miller retroactive in Montgomery v Louisiana, ___ US ___; 136 S Ct 718; 193 L Ed 2d 599
(2016), and our Legislature’s enactment of MCL 769.25a. In Miller, the United States Supreme
Court held 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.’ ”



1
 People v Howard, unpublished order of the Court of Appeals, entered July 6, 2017 (Docket No.
337589).
2
  Defendant was also convicted of two counts of armed robbery, MCL 750.529, and one count of
possession of a firearm during the commission of a felony, MCL 750.227b, and received a
respective 20 to 30 years’ imprisonment for the former and two years’ imprisonment for the
latter.


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Miller, 567 US at 465. The Court noted that “children are constitutionally different from adults
for purposes of sentencing,” id. at 471, that “the distinctive attributes of youth diminish the
penological justifications for imposing the harshest sentences on juvenile offenders,” id. at 472,
and that, in these cases, “a sentencer [must] have the ability to consider the ‘mitigating qualities
of youth,’ ” id. at 476, quoting Johnson v Texas, 509 US 350, 367; 113 S Ct 2658; 125 L Ed 2d
290 (1993).

       Mandatory life without parole for a juvenile precludes consideration of his
       chronological age and its hallmark features—among them, immaturity,
       impetuosity, and failure to appreciate risks and consequences. It prevents taking
       into account the family and home environment that surrounds him—and from
       which he cannot usually extricate himself—no matter how brutal or
       dysfunctional. It neglects 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. Indeed, it ignores that he might have been
       charged 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. See,
       e.g., Graham, 560 U.S., at 78, 130 S.Ct., at 2032 (“[T]he features that distinguish
       juveniles from adults also put them at a significant disadvantage in criminal
       proceedings”); J.D.B. v. North Carolina, 564 U.S. 261, 269, 131 S.Ct. 2394,
       2400–2401, 180 L.Ed.2d 310 (2011) (discussing children’s responses to
       interrogation). And finally, this mandatory punishment disregards the possibility
       of rehabilitation even when the circumstances most suggest it. [Miller, 509 US at
       477-478.]

“ ‘A state is not required to guarantee eventual freedom,’ but must provide ‘some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.’ ” Id. at 479,
quoting Graham v Florida, 560 US 48, 75; 130 S Ct 2011; 176 L Ed 2d 825 (2010). Again,
Miller’s holding was made retroactive to juvenile offenders in Montgomery, ___ US ___; 136 S
Ct at 734, 736.

        The Michigan Legislature enacted MCL 769.25a, however, which accounted for that
possibility that Miller would be determined to apply retroactively. MCL 769.25a provides, in
pertinent part:

       (b) Within 180 days after the date the supreme court’s decision [regarding the
       retroactivity of Miller] becomes final, the prosecuting attorney shall 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. A hearing on the motion shall be conducted as provided in section 25 of
       this chapter.

       (c) If 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. [MCL 769.25a(4)(b) and (c).]

                                                -2-
In those cases in which prosecutors seek to impose a sentence of LWOP, MCL 769.25 provides
the procedure for the Miller hearing to which those defendants are entitled:

       (6) . . . At the hearing, the trial court shall consider the factors listed in Miller v
       Alabama, 567 US [460]; 183 L Ed 2d 407; 132 S Ct 2455; (2012), and may
       consider any other criteria relevant to its decision, including the individual’s
       record while incarcerated.

       (7) At the hearing under subsection (6), the court shall specify on the record the
       aggravating and mitigating circumstances considered by the court and the court’s
       reasons supporting the sentence imposed. The court may consider evidence
       presented at trial together with any evidence presented at the sentencing hearing.
       [MCL 769.25(6) and (7).]

         In this case, defendant primarily contends that MCL 769.25a is unconstitutional as
applied to him under Miller. That is, despite the fact that the prosecution did not seek to impose
a sentence of LWOP, the term-of-years sentence defendant received pursuant to MCL
769.25a(4)(c) is functionally equivalent to LWOP; thus, defendant should have been afforded the
procedural protections provided by Miller and described in MCL 769.25(6) and (7). We
conclude that defendant has failed to overcome the presumption that MCL 769.25a is
constitutional, and thus, failed to demonstrate that the trial court plainly erred in applying the
statute.

        Generally, “[t]o preserve a sentencing issue for appeal, a defendant must raise the issue
‘at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the
court of appeals.’ ” People v Clark, 315 Mich App 219, 223-224; 888 NW2d 309 (2016), citing
MCR 6.429(C) and People v McLaughlin, 258 Mich App 635, 670; 672 NW2d 860 (2003).
Defendant did not raise the constitutional issue he now raises on appeal at sentencing, or in a
proper motion for resentencing or to remand; thus, the issue is unpreserved. “Unpreserved,
constitutional errors are reviewed for plain error affecting substantial rights.” People v Pipes,
475 Mich 267, 270; 715 NW2d 290 (2006).

       “Statutory interpretation presents a question of law that we review de novo.” People v
Konopka (On Remand), 309 Mich App 345, 356; 869 NW2d 651 (2015). “Statutes are presumed
to be constitutional, and the party challenging the statute has the burden of showing the
contrary.” People v Dillon, 296 Mich App 506, 510; 822 NW2d 611 (2012).

       Defendant’s argument presumes that the holding in Miller applies to term-of-year
sentences, in addition to mandatory LWOP sentences, where the term of years exceeds the life
expectancy of the juvenile offender. Although one might argue that Miller explicitly applied
only to mandatory LWOP sentences, this Court need not reach the issue because defendant was
ultimately afforded the constitutional protections that Miller requires. Miller requires that
defendants convicted as juveniles be afforded “some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” Miller, 567 US at 479, quoting Graham,
560 US at 75. Defendant has been granted that opportunity; he has been afforded a meaningful
opportunity to obtain release. Defendant is only 53 years old and, according to the
Michigan Department of Corrections Offender Tracking Information System (OTIS) website,

                                                -3-
could be released from prison by September 11, 2018, although he was originally sentenced to
LWOP. Accordingly, defendant’s cursory contention that his 40-year sentence constitutes de
facto LWOP is without merit. MCL 769.25a is not unconstitutional as applied to defendant
because application of the statute afforded defendant a meaningful opportunity to obtain release.
See Miller, 567 US at 479.

        We note that defendant has not even attempted to establish that the trial court plainly
erred when it presumed that MCL 769.25a was constitutional and when it presumed that the
discretionary sentence of 40 years’ imprisonment was not the equivalent of mandatory LWOP
within the meaning of Miller. Further, even if the trial court had considered each of the Miller
factors, defendant has not established that he would have received a shorter sentence. In fact, the
trial court demonstrated at defendant’s resentencing hearing that it thoughtfully weighed
defendant’s maturity and ability to be rehabilitated against the severity of his crimes, but still
determined that a 40-year sentence was appropriate. The trial court listed a number of
defendant’s accomplishments and noted his progress and future potential but, ultimately, was
more swayed by the egregious nature of the crime. Consequently, defendant has failed to
establish that the trial court plainly erred and failed to establish that application of defendant’s
interpretation of Miller would have changed the length of his sentence.

        Defendant also states in a single sentence that MCL 769.25a is unconstitutional on its
face because it imposes mandatory minimum sentences on juvenile offenders. Defendant
provides no legal authority or analysis to support the contention, and accordingly, has abandoned
the issue. See People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).

       Affirmed.



                                                             /s/ Brock A. Swartzle
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Michael J. Kelly




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