                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     July 21, 2016
                Plaintiff-Appellee,                                  9:10 a.m.

v                                                                    No. 325741
                                                                     Genesee Circuit Court
KENYA ALI HYATT,                                                     LC No. 13-032654-FC

                Defendant-Appellant.


Before: SHAPIRO, P.J., and MARKEY, METER, BECKERING, STEPHENS, M.J. KELLY, and RIORDAN,
JJ.

BECKERING, J.

        Pursuant to MCR 7.215(J), this Court convened a special conflict panel to resolve the
conflict between the previous opinion issued in this case in People v Perkins,1 __ Mich App __;
__ NW2d __ (2016) (Docket Nos. 323454; 323876; 325741), and the decision issued in People v
Skinner, 312 Mich App 15; 877 NW2d 482 (2015). The issue involves whether a juvenile the
prosecution seeks to subject to a sentence of life without parole under MCL 769.25 is entitled,
under the Sixth Amendment to the United States Constitution, to have a jury determine whether
life without parole is warranted. As evidenced by the existence of this special conflict panel, we
recognize that this is a difficult issue. Also not lost on this panel is the understanding that
juveniles who commit a heinous offense, while undoubtedly deserving of punishment, are
categorically less culpable than their adult counterparts and are less deserving of the maximum
punishment available under the law. As the United States Supreme Court has made
unmistakably clear, it is only the truly rare juvenile who will be deserving of the harshest penalty
available under the laws of this state, and a life-without-parole sentence is an unconstitutional
penalty for all juveniles but for those whose crimes reflect irreparable corruption. Thus, while
we conclude that a judge, not a jury, is to make this determination, the sentencing judge must
honor the mandate that was made abundantly clear in Miller v Alabama, 576 US __; 132 S Ct


1
  The instant matter involving defendant, Kenya Hyatt, was initially consolidated with Docket
Nos. 323454 and 323876, but this Court has since, on its own motion, vacated its previous order
consolidating the cases in order to allow defendant Hyatt’s case to proceed on its own before this
special conflict panel. People v Perkins, unpublished order of the Court of Appeals, (Docket
Nos. 323454; 323876; 325741, issued April 26, 2016).


                                                -1-
2455, 2469; 183 L Ed 2d 407 (2012), and other recent Eighth Amendment caselaw: life without
parole is to be reserved for only the rarest of juvenile offenders so as to avoid imposing an
unconstitutionally disproportionate life-without-parole sentence on a transiently immature
offender. Such mandate necessarily affects not only the way a trial court is to exercise its
discretion when meting out punishment, but also the way an appellate court is to review a life-
without-parole sentence for a juvenile offender. In short, youth matters when it comes to
sentencing, and our courts, at sentencing and on appeal, must carefully take this into account
when going about the exceedingly difficult task of determining whether a juvenile is irreparably
corrupt—meaning incapable of rehabilitation for the remainder of his or her life—in order to
avoid an unconstitutional sentence.

                                            I. FACTS

        The facts of this case are fully set forth in the prior opinion and need not bear repeating,
save for a few pertinent details. Following trial, a jury convicted defendant Hyatt of first-degree
felony murder, conspiracy to commit armed robbery, armed robbery, and felony-firearm. At a
sentencing hearing required by MCL 769.25(6), the trial court decided to sentence defendant,
who was 17 years old at the time of the offenses, to life without the possibility of parole on the
first-degree murder conviction. The prior panel reversed his sentence because the trial judge, not
a jury, was the sentencer, and because it was bound to follow the decision reached by the
majority in Skinner, 312 Mich App 15. Nevertheless, the prior panel in the instant case noted
that but for Skinner, it would have affirmed the sentence because it concluded that a judge, not a
jury, was to determine a juvenile’s eligibility for a life-without-parole sentence under MCL
769.25. Because it disagreed with Skinner on this point, the prior panel declared a conflict with
Skinner.

                                 II. STANDARD OF REVIEW

       Resolution of the conflict in this case requires us to construe MCL 769.25 and to examine
defendant’s constitutional rights under the Sixth Amendment and the Eighth Amendment to the
United States Constitution. We review de novo these issues of law. People v Humphrey, 312
Mich App 309, 314; 877 NW2d 770 (2015); People v Al-Shara, 311 Mich App 560, 567; 876
NW2d 826 (2015).

                                         III. ANALYSIS

       As was recognized in Skinner and by the prior panel in this case, the instant case involves
the confluence of Sixth Amendment and Eighth Amendment jurisprudence. We begin by briefly
touching on the pertinent Eighth Amendment caselaw.

                      A. RECENT EIGHTH AMENDMENT CASELAW

                                    1. MILLER V. ALABAMA

       In Miller v Alabama, 576 US __; 132 S Ct 2455, 2469; 183 L Ed 2d 407 (2012), the
United States Supreme Court considered an Eighth Amendment challenge to mandatory life-
without-parole sentences for juvenile offenders in homicide cases and concluded that “[b]y
making youth (and all that accompanies it) irrelevant to imposition of that harshest prison

                                                -2-
sentence [life without parole], such a scheme poses too great a risk of disproportionate
punishment.” The Court emphasized that the unique characteristics of youth warranted treating
juveniles differently from adults for purposes of sentencing. In particular, drawing on past
Eighth Amendment precedent in Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1
(2005) (imposing a categorical ban on capital punishment for all juvenile offenders), and
Graham v Florida, 560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010) (banning life-without-
parole sentences for juveniles in non-homicide cases), the Court noted that juveniles have “lesser
culpability” and a greater capacity for reform and thus “are constitutionally different from adults
for purposes of sentencing.” Miller, 132 S Ct at 2463-2464. Specifically, the Court explained
that Roper and Graham recognize “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 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]. [Id. at 2464 (citations and quotation marks
       omitted; alterations in original).]

         In addition to noting that the characteristics of youth warranted treating juveniles
differently, the Court noted the severity of a life-without-parole sentence for juveniles.
Particularly, the Court took notice of the idea that the majority in Graham “likened life without
parole for juveniles to the death penalty itself . . . .” Id. at 2463. See also Graham, 560 US at
69-71. The Graham majority did so by noting that life without parole was especially harsh for a
juvenile offender, who will “almost inevitably serve ‘more years and a greater percentage of his
life in prison than an adult offender.’ ” Miller, 132 US at 2466, quoting Graham, 560 US at 70.
And given that Roper categorically banned the death penalty for juvenile offenders, life without
parole became the “ultimate penalty for juveniles . . . .” Miller, 132 US at 2466. Because
Graham likened life without parole for juveniles to the death penalty, the Court reasoned that
Graham made relevant to the issue at hand death-penalty caselaw, which imposed the
requirement of individualized sentencing pursuant to which the offender’s character and record,
along with the circumstances of the offense and other mitigating or aggravating factors, were to
be considered. Id. at 2467 (citations omitted).

        In light of characteristics of youth and pertinent Eighth Amendment precedent, the Court
concluded that mandatory life-without-parole sentencing schemes for juveniles, “by their nature,
preclude a sentencer from taking account of an offender’s age and the wealth of characteristics
and circumstances attendant to it.” Id. “And still worse,” continued the Court, “each juvenile
(including these two 14–year–olds) will receive the same sentence as the vast majority of adults
committing similar homicide offenses—but really, as Graham noted, a greater sentence than
those adults will serve.” Id. at 2468. Accordingly, the Court barred mandatory life-without-
parole sentences for juvenile offenders in homicide cases and provided a number of non-




                                                -3-
exhaustive factors2 that a sentencer should consider before imposing a life-without-parole
sentence:

          . . . 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. [Id.]

        The Court stopped short of considering a categorical ban on life-without-parole sentences
for juveniles because that issue was not before it, but held that the Eighth Amendment forbade
the imposition of a mandatory penalty because it “prevent[s] the sentencer from taking account
of” the offender’s youthfulness, diminished culpability, and increased potential for reform. Id. at
2466. Yet, while not imposing a categorical ban, the Court was careful to note that because of a
juvenile’s “diminished culpability and heightened capacity for change, we think appropriate
occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id. at
2469. “That is especially so,” reasoned the Court, “because of the great difficulty we noted
in Roper and Graham of distinguishing at this early age between the juvenile offender whose
crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption.” Id. (citations and quotation marks omitted).

                                2. MONTGOMERY V. LOUISIANA

        The first—and perhaps most pressing—issue left in Miller’s wake was the issue of
retroactivity. A number of states took aim at this issue, including this Court and the Michigan
Supreme Court.3 The United States Supreme Court resolved this issue in Montgomery v
Louisiana, __ US __; 136 S Ct 718; 193 L Ed 2d 599 (2016), a case of which neither Skinner nor
Hyatt had the benefit. The majority ruled—in a holding that is not of particular relevance for
resolving the issue in the present case—that Miller applied retroactively. Id. at 736. More
relevant to our discussion in the instant case was Montgomery’s admonition—continued from
Miller—that “a lifetime in prison is a disproportionate sentence for all but the rarest of children,
those whose crimes reflect irreparable corruption.” Id. at 726 (citation and quotation marks
omitted). The Court also acknowledged, in the context of concluding that the rule in Miller was
substantive and thus subject to retroactive application, that Miller did not forbid states from
imposing life-without-parole sentences altogether. Id. at 734. However, Miller nevertheless


2
    As will be discussed, our Legislature, in MCL 769.25, dubbed these the “Miller factors.”
3
    See People v Carp, 496 Mich 440; 852 NW2d 801 (2014).


                                                 -4-
barred life without parole “for all but the rarest of juvenile offenders, those whose crimes reflect
permanent incorrigibility”; thus, “[f]or that reason, Miller is no less substantive than are Roper
and Graham.” Id.

         Also relevant to our discussion, the Court in Montgomery acknowledged that Miller’s
holding, while substantive, nevertheless “has a procedural component” in that it requires “a
sentencer to consider a juvenile offender’s youth and attendant characteristics before determining
that life without parole is a proportionate sentence.” Id. This procedural component—a hearing
at which “ ‘youth and its attendant characteristics’ are considered as sentencing factors”—was
necessary to give effect to Miller’s “substantive holding that life without parole is an excessive
sentence for children whose crimes reflect transient immaturity.” Id. at 735. The Supreme
Court, in rejecting an argument made in that case, acknowledged that Miller did not require trial
courts to make findings of fact regarding a child’s “incorrigibility.” Id. However, “[t]hat Miller
did not impose a formal factfinding requirement does not leave States free to sentence a child
whose crime reflects transient immaturity to life without parole. To the contrary, Miller
established that this punishment is disproportionate under the Eighth Amendment.” Id. In the
absence of express procedural requirements or factfinding requirements set forth in Miller, the
Court in Montgomery emphasized that it was incumbent upon states to develop procedures to
enforce Miller’s substantive guarantee of individualized sentencing for juvenile offenders facing
the possibility of life without parole. Id.

                       B. MCL 769.25—OUR RESPONSE TO MILLER

        In response to Miller’s directive about individualized sentencing, our Legislature enacted
2014 PA 22 which included, relevant to our purposes in the instant case, MCL 769.25. For
certain, enumerated homicide offenses, the statute allowed the prosecuting attorney to “file a
motion under this section to sentence” a juvenile offender “to imprisonment for life without the
possibility of parole . . . .” MCL 769.25(2). With a nod toward Miller, the statute provided that:

       (6) If the prosecuting attorney files a motion under subsection (2), the court shall
       conduct a hearing on the motion as part of the sentencing process. At the hearing,
       the trial court shall consider the factors listed in Miller v Alabama, 576 US_____;
       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)-(7).]

        However, absent a motion by the prosecutor seeking the penalty of life without parole,
see MCL 769.25(4), or “[i]f the court decides not to sentence the individual to imprisonment for
life without parole eligibility, the court shall sentence the individual to a term of imprisonment
for which the maximum term shall be not less than 60 years and the minimum term shall be not
less than 25 years or more than 40 years[,]” MCL 769.25(9).


                                                -5-
               C. APPRENDI AND SIXTH AMENDMENT JURISPRUDENCE

                                          1. APPRENDI

       The issue at the heart of this conflict case is whether Miller, and how our Legislature has
chosen to implement Miller’s guarantee of individualized sentencing in MCL 769.25, runs afoul
of Sixth Amendment caselaw concerning the right to have a jury decide facts that increase the
maximum available punishment. Neither Miller nor Montgomery had occasion to address this
issue. In People v Carp, 496 Mich 440, 490-491, 491 n 20; 852 NW2d 801 (2014)—a pre-
Montgomery case dealing with the retroactivity of Miller—our Supreme Court declined to
address the issue. Accordingly, we must turn our attention to pertinent Sixth Amendment
caselaw.

       In one of the more influential cases in this line of precedent, Apprendi v New Jersey, 530
US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000), the United States Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” In Apprendi, the defendant pleaded guilty to a weapons offense for which the proscribed
penalty was 5 to 10 years’ imprisonment. Id. at 469-470. Subsequent to the trial court accepting
the plea, the prosecutor filed a motion to extend the term of imprisonment based on a “hate
crime” statute. Id. at 470. The trial court found that the defendant acted “with a purpose to
intimidate” under the statute, which authorized the court to enhance the defendant’s maximum
sentence to 10-20 years’ imprisonment. Id. at 471.

        The Supreme Court agreed with the defendant’s challenge to his sentence in Apprendi,
finding that the Fourteenth Amendment’s due process guarantee, as well as the Sixth
Amendment right to a jury trial, “indisputably entitle a criminal defendant to a jury
determination that [he] is guilty of every element of the crime with which he is charged, beyond
a reasonable doubt.” Id. at 477 (citation and quotation marks omitted; alteration in original). A
fact, other than a prior conviction, that increased the maximum penalty beyond what was
authorized by the jury’s verdict, was in essence, an element that needed to be proved to the jury
beyond a reasonable doubt. Id. at 490.

        While the Apprendi Court held that elements of the offense must be submitted to the jury,
it was careful, however, to specify that the holding in that case did not suggest

       that it is impermissible for judges to exercise discretion-taking into consideration
       various factors relating both to offense and offender-in imposing a
       judgment within the range prescribed by statute. We have often noted that judges
       in this country have long exercised discretion of this nature in imposing sentence
       within statutory limits in the individual case. [Id. at 481.]

Provided that a sentencing judge operated within the limits of punishment as provided by statute
and did not increase the maximum punishment, the judge properly exercised his or her
sentencing authority. See id. at 482-483. In such an instance, any facts found function as mere
sentencing factors, rather than elements of an aggravated offense. See id. at 482-483, 485-486.
See also LaFave, et al, Criminal Procedure (4th ed), § 26.4(h), p 1007.

                                                -6-
       The Apprendi Court also took care to note the historical difference in its jurisprudence
“between facts in aggravation of punishment and facts in mitigation.” Apprendi, 530 US at 490
n 16. The former requires a jury finding beyond a reasonable doubt, while the latter does not.
Id. As to mitigating factors, the Court explained:

       If facts found by a jury support a guilty verdict of murder, the judge is authorized
       by that jury verdict to sentence the defendant to the maximum sentence provided
       by the murder statute. If the defendant can escape the statutory maximum by
       showing, for example, that he is a war veteran, then a judge that finds the fact of
       veteran status is neither exposing the defendant to a deprivation of liberty greater
       than that authorized by the verdict according to statute, nor is the judge imposing
       upon the defendant a greater stigma than that accompanying the jury verdict
       alone. Core concerns animating the jury and burden-of-proof requirements are
       thus absent from such a scheme. [Id.]

                                 2. EXPANSION OF APPRENDI

        In the years since it issued Apprendi, the Supreme Court has expanded the territorial
limits of “Apprendi-land”—a term coined by Justice Scalia4—to include, among other matters,
judicial factfinding on aggravating factors required for the imposition of the death penalty, Ring
v Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002), judicial factfinding that affected
sentencing-guideline range maximums, see United States v Booker, 543 US 220; 125 S Ct 738;
160 L Ed 2d 621 (2005); Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403
(2004), determinate sentencing tiers pursuant to which the trial judge, not the jury, was given
authority to find facts that exposed a defendant to an elevated sentence, see Cunningham v
California, 549 US 270; 127 S Ct 856; 166 L Ed 2d 856 (2007), mandatory minimum sentences,
see Alleyne v United States, __ US __; 133 S Ct 2151; 186 L Ed 2d 314 (2013);5 and criminal
fines, Southern Union Co v United States, __ US __; 132 S Ct 2344; 183 L Ed 2d 318 (2012). In
each of these cases, the Court reiterated that any fact, other than a prior conviction, that increases
the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt. See, e.g., Blakley, 542 US at 301. For purposes of Apprendi, this
statutory maximum “is not the maximum sentence a judge may impose after finding additional
facts, but the maximum he may impose without any additional findings.” Id. at 303-304. It does
not matter for purposes of Apprendi whether the enhancement of the maximum sentence occurs
based on the finding of a single, specified fact, based on several specified facts, or based on any
aggravating fact: the Sixth Amendment violation is the same regardless. Id. at 305. Hence, if a
statute provides for a particular term of imprisonment as well as an enhanced term, a judge
cannot, when the jury’s verdict only authorized the lower term, find facts that increase the


4
  See Ring v Arizona, 536 US 584; 122 S Ct 2428; 153 L Ed 2d 556 (2002) (SCALIA, J.,
concurring).
5
 In response to Alleyne, our Supreme Court struck the statutory requirement in Michigan that
made the use of sentencing guidelines—used to calculate a defendant’s minimum sentence—
mandatory. People v Lockridge, 498 Mich 358, 364; 870 NW2d 502 (2015).


                                                 -7-
maximum punishment. Cunningham, 549 US at 288. A defendant has the right to have a “jury
find the existence of any particular fact that the law makes essential to his punishment.” Booker,
543 US at 232 (citation and quotation marks omitted). The Court has repeatedly stressed that a
“judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction,
the jury would not exercise the control that the Framers intended.” Blakely, 542 US at 306.

        The Supreme Court’s Sixth Amendment jurisprudence has emphasized that the Apprendi
rule was not concerned with the label—element or sentencing factor—assigned to a particular
factual finding. Rather, it was the effect of the particular finding that mattered. That is, did the
fact or facts found by the sentencing judge increase the statutory maximum from that which was
authorized by the jury’s verdict? Booker, 543 US at 231; Blakely, 542 US at 306; Apprendi, 530
US at 494. See also Alleyne, 133 S Ct at 2158 (“The touchstone for determining whether a fact
must be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element’ or
‘ingredient’ of the charged offense. . . . a fact is by definition an element of the offense and must
be submitted to the jury if it increases the punishment above what is otherwise legally
prescribed.”); Cunningham, 549 US at 290 (“If the jury’s verdict alone does not authorize the
sentence, if, instead, the judge must find an additional fact to impose the longer sentence, the
Sixth Amendment requirement is not satisfied.”). A particular fact functions as an “element” if
by law, it increases the penalty for a crime. Alleyne, 133 S Ct at 2155.

                                      3. HURST AND RING

       In addition to the above-noted extensions of Apprendi, we note an area of caselaw to
which the parties pay particular attention in the instant case: the extension of the Apprendi rule to
cases involving aggravating factors used to enhance a sentence for purposes of imposing the
death penalty. See Hurst v Florida, __ US __; 136 S Ct 616; 193 L Ed 2d 504 (2016); Ring, 536
US 584. Although these cases dealt with the imposition of the death penalty on adult offenders,
the sentencing scheme—and the intersection of Eighth Amendment considerations and Sixth
Amendment jury entitlements at issue in both Hurst and Ring—provide useful analysis for the
sentencing scheme at issue in the instant case.

         In Ring, 536 US at 591, the jury convicted the defendant, Timothy Ring, of felony
murder for the death of the victim during an armored car robbery, but deadlocked on
premeditated murder. The issue in that case concerned whether the jury’s verdict authorized the
imposition of the death penalty under Arizona law. “Under Arizona law, [the defendant] could
not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further
findings were made.” Id. at 592 (emphasis added). In particular, Arizona’s first-degree murder
statute authorized the penalty of death or life imprisonment, but, for purposes of determining
which penalty to impose, Arizona law directed the trial judge to “conduct a separate sentencing
hearing to determine the existence or nonexistence of [certain enumerated] circumstances . . . .”
Id. (citation and quotation marks omitted). The sentencing scheme at issue went on to provide
that the trial judge was to determine whether any of the enumerated aggravating factors existed,
as well as any mitigating circumstances, and the judge could only impose the death penalty “if
there is at least one aggravating circumstance and there are no mitigating circumstances
sufficiently substantial to call for leniency.” Id. at 593 (citation and quotation marks omitted).



                                                -8-
        The defendant in Ring contended that the Sixth Amendment required jury findings on the
statutory aggravating factors. Id. at 597 n 4. The “aggravating” factors required by Arizona law
were added by the state’s legislature in large part due to Eighth Amendment caselaw concerning
the imposition of death sentences and the requirement of aggravating factors. Id. at 606, citing
Maynard v Cartwright, 486 US 356, 362; 108 S Ct 1853; 100 L Ed 2d 372 (1988); Furman v
Georgia, 408 US 238; 92 S Ct 2726; 33 L Ed 2d 346 (1972). The Supreme Court in Ring
remarked that the addition of aggravating factors was an “element” which was “constitutionally
required” by the Eighth Amendment. Ring, 536 US at 607.

        The Supreme Court found that Arizona’s sentencing scheme could not be reconciled with
the rule from Apprendi because “[b]ased solely on the jury’s verdict finding [the defendant]
guilty of first-degree felony murder, the maximum punishment he could have received was life
imprisonment[,]” not death. Id. at 597. See also id. at 609 (holding that the Arizona sentencing
scheme violated the Sixth Amendment because it “allows a sentencing judge, sitting without a
jury, to find an aggravating circumstance necessary for imposition of the death penalty.”). “This
was so because, in Arizona, a death sentence may not be legally imposed” under state law,
“unless at least one aggravating factor is found to exist beyond a reasonable doubt.” Id. at 597
(citation and quotation marks omitted; emphasis added). Reviewing Apprendi, the Court stated
that the “dispositive question” was “ ‘one not of form, but of effect.’ If a State makes an
increase in a defendant's authorized punishment contingent on the finding of a fact, that fact—no
matter how the State labels it—must be found by a jury beyond a reasonable doubt.” Id. at 602,
quoting Apprendi, 530 US at 494. In Ring, the “effect” of the statutory scheme required the
finding of an aggravating fact before a defendant could be exposed to a greater punishment—
death—than was authorized by the jury’s verdict alone. Ring, 536 US at 604. “Because
Arizona’s enumerated aggravating factors operate as the functional equivalent of an element of a
greater offense, the Sixth Amendment requires that they be found by a jury.” Id. at 609 (citation
and quotation marks omitted).

         In Hurst, another case dealing with the imposition of the death penalty, the Court dealt
with a variation on the issue raised in Ring. In that case, the defendant, Timothy Hurst, was
convicted of first-degree murder. Id. at 619-620. Under Florida law, the maximum sentence that
could be imposed for the offense was life imprisonment. Id. at 620. An offender could only
receive a death sentence based on additional findings of fact. Id. The sentencing proceeding at
issue was one in which a jury rendered an “advisory verdict” without specifying the factual basis
for its recommendation. Id. Afterwards, the trial judge was to weigh aggravating and mitigating
factors and to decide between a sentence of life imprisonment or death. Id. Further, “[i]f the
court imposes death, it must set forth in writing its findings upon which the sentence of death is
based.” Id. (citation and quotation marks omitted).

        The United States Supreme Court concluded that Florida’s sentencing scheme could not
be reconciled with Ring and Apprendi. Id. at 621. The Court recited its holding in Ring that
“Arizona’s capital sentencing scheme violated Apprendi’s rule because the State allowed a judge
to find the facts necessary to sentence a defendant to death.” Id., citing Ring, 536 US at 591.
This same analysis, the Court concluded, applied in Hurst and demonstrated the constitutional
infirmity of the defendant’s death sentence in that case. Hurst, 136 S Ct at 621-622. “Like
Arizona at the time of Ring, Florida does not require the jury to make the critical findings
necessary to impose the death penalty. Rather, Florida requires a judge to find these facts.” Id.

                                               -9-
at 622 (emphasis added). That Florida’s sentencing scheme included an advisory jury verdict—a
component not present in Arizona’s scheme—did not change the analysis because the advisory
jury did not make specific factual findings and its recommendation was not binding on the judge.
Id. Hence:

       As with Timothy Ring, the maximum punishment Timothy Hurst could have
       received without any judge-made findings was life in prison without parole. As
       with Ring, a judge increased Hurst's authorized punishment based on her own
       factfinding. In light of Ring, we hold that Hurst’s sentence violates the Sixth
       Amendment. [Id.]

In short, the Sixth Amendment violation in Hurst, as it was in Ring, was that, although the
statutory maximum for the homicide offense of which the defendant was convicted authorized
the death penalty, a judge could only impose the death penalty based on findings beyond the
jury’s verdict. The death penalty was not available but for factual findings on aggravating
factors that had not been submitted to a jury for determination beyond a reasonable doubt.

              4. APPRENDI DOES NOT BAR ALL JUDICIAL FACTFINDING

        For all that was said in Apprendi and its progeny, we note that the Supreme Court’s
holding in those cases must not be read as a prohibition against all judicial factfinding at
sentencing. Indeed, the rules from Apprendi and its progeny do not stand for the proposition that
a sentencing scheme in which judges are permitted “genuinely to exercise broad discretion . . .
within a statutory range” is unconstitutional; rather, as articulated in Cunningham, “everyone
agrees” that such a scheme “encounters no Sixth Amendment shoal.” Cunningham, 549 US at
294 (citation and quotation marks omitted; alteration in original; emphasis added). See also
Alleyne, 133 S Ct at 2163 (“Our ruling today does not mean that any fact that influences judicial
discretion must be found by a jury. We have long recognized that broad sentencing discretion,
informed by judicial factfinding, does not violate the Sixth Amendment.”). Thus, a judge, acting
with the range of punishment authorized by statute, may exercise his or her discretion—and find
facts and consider factors relating to the offense and the offender—without violating the Sixth
Amendment. Id., citing Apprendi, 530 US at 481. As explained in Alleyne, 133 S Ct at 2163:

       [W]ithin the limits of any discretion as to the punishment which the law may have
       allowed, the judge, when he pronounces sentence, may suffer his discretion to be
       influenced by matter shown in aggravation or mitigation, not covered by the
       allegations of the indictment.” [1 J. Bishop, Criminal Procedure 50 (2d ed, 1872),
       § 85, at 54.]

       “[E]stablishing what punishment is available by law and setting a specific
       punishment within the bounds that the law has prescribed are two different
       things.” Apprendi, supra, at 519, 120 S Ct 2348 (THOMAS, J., concurring).

                                  D. SKINNER AND HYATT

       With that backdrop in mind, we arrive at the basis for this conflict: Skinner and the prior
opinion in this case.


                                              -10-
                                          1. SKINNER

        This Court first encountered the issue in Skinner, where the majority, after a careful and
detailed discussion of the relevant caselaw, arrived at the conclusion that a jury is to be the
decision maker at the so-called Miller hearing required by MCL 769.25. The majority concluded
that MCL 769.25 mandated “findings” and that those findings constituted elements of the
offense. Skinner, 312 Mich App at 42-43. The majority reasoned that MCL 769.25 established a
“default” sentence of a term of years for juveniles convicted of first-degree murder because,
absent a motion by the prosecution, the trial court was required to impose a term-of-years
sentence. Id. at 43-44, citing MCL 769.25(4). This conclusion as to a “default” sentence was
premised, in part, on our Supreme Court’s opinion in Carp, which used the same term, “default,”
and concluded that “MCL 769.25 now establishes a default sentencing range for individuals who
commit first-degree murder before turning 18 years of age.” Skinner, 312 Mich App at 44,
quoting Carp, 496 Mich at 458. According to the majority in Skinner, MCL 769.25 conditioned
a life-without-parole sentence for a juvenile offender on two things: (1) the filing of a motion by
the prosecution; and (2) the trial court’s findings on the Miller factors and on other criteria as
provided in MCL 759.25(6). Skinner, 312 Mich App at 45. This, according to the majority, was
a scheme that authorized an enhanced sentence based on factual findings by the trial court, and
ran afoul of the rule established in Apprendi and its progeny. Id.

                 Clearly, the findings mandated by MCL 769.25(6) “expose the defendant
       to a greater punishment than that authorized by the jury's guilty
       verdict,” Apprendi, 530 US at 494; 120 S Ct 2348, and therefore act as the
       “functional equivalent” of elements of a greater offense that must be proved to a
       jury beyond a reasonable doubt, Ring, 536 US at 609; 122 S Ct 2428. An
       enhanced punishment under MCL 769.25 is not based merely on defendant’s prior
       convictions, on facts admitted by defendant, or on facts that are part and parcel of
       the elements that were submitted to the jury during the guilt-phase of the
       proceeding. Rather, like in Apprendi, 530 US at 476; 120 S Ct 2348, in this case
       the state threatened defendant with certain pains—i.e., a term-of-years sentence—
       following her jury conviction of first-degree murder and with additional pains—
       i.e., life without parole—following additional findings by the trial court. “Merely
       using the label ‘sentence enhancement’ to describe the latter surely does not
       provide a principled basis for treating them differently.” Id. The effect of MCL
       769.25 plainly subjects defendant to harsher punishment on the basis of judicially
       found facts in contravention of the Sixth Amendment. [Skinner, 312 Mich App at
       46.]

        In a strong dissent, Judge Sawyer rejected the idea that MCL 769.25 required findings of
fact that increased the maximum sentence authorized by statute. Skinner, 312 Mich App at 63
(SAWYER, J., dissenting). Judge Sawyer equated the requirements of MCL 769.25 to sentencing
factors, rather than factfinding that authorized the trial court to impose a greater sentence than
the statutory maximum. Id. at 63-64. “[T]he juvenile lifer law does not require any particular
judicial fact-finding to increase the potential sentence from a term of years to life without
parole.” Id. at 70. MCL 769.25, as summarized by Judge Sawyer:



                                               -11-
        . . . does require the trial court to conduct a hearing before it may impose a
       sentence of life without parole on a juvenile offender. And it further requires that
       the trial court “consider” the factors listed in Miller, as well as any other criteria
       the trial court deems relevant to its decision. MCL 769.25(7) then requires that
       “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.” But nowhere does the statute require the trial court to make
       any particular finding of fact before it is authorized to impose a sentence of life
       without parole. Rather, after conducting the hearing and considering the
       evidence presented at the hearing as well as the evidence presented at trial, the
       trial court makes its decision and must state on the record the reasons for that
       decision. As our Supreme Court noted in Carp, this process allows for the
       “individualized sentencing” procedures established by Miller. This procedure
       also presumably allows for more meaningful appellate review of the sentence.
       [Skinner, 312 Mich App at 73 (SAWYER, J., dissenting) (citation omitted;
       emphasis added).]

Likewise, Judge Sawyer concluded that Miller itself did not require that any particular fact be
found before a court could impose a sentence of life without parole. Id. at 74. Rather, it merely
set forth a framework for ensuring that the juvenile received an individualized sentence. Id.

                                            2. HYATT

        In the prior appeal in the instant matter, defendant Hyatt argued that he was entitled to
have a jury determine his sentence in accordance with Skinner. The panel recognized that it was
bound by Skinner, but stated “we believe that Skinner was wrongly decided.” Perkins, __ Mich
App at __; slip op at 14. Like the panel in Skinner, the prior panel engaged in a lengthy and
detailed analysis of MCL 769.25, Miller, and Sixth Amendment caselaw such as Apprendi, Ring,
Booker, Blakely, Cunningham, and Alleyne. Id. at 14-21. After this detailed analysis, the panel
agreed with Judge Sawyer’s dissent in Skinner. That is, the prior panel believed that MCL
769.25 “does not run afoul of [Sixth Amendment jurisprudence] because Hyatt did not receive an
enhanced sentence. The sentencing court did not determine facts not already determined by the
jury’s verdict.” Id. at 21. Moreover, unlike in Apprendi, Ring, Blakely, Cunningham, and
Alleyne, “nothing in MCL 769.25 premised the sentencing court’s authority to impose a term of
life imprisonment without parole on any specific finding that Hyatt’s jury failed to consider in
convicting Hyatt of first-degree felony murder. Because the prosecutor undisputedly and
properly filed a motion seeking a life-without-parole sentence for Hyatt, the term of years
mandate in §§ 25(4) and (9) did not apply.” Id. Finally, reasoned the panel, “the plain language
of the statute did not require the trial court to make any findings concerning aggravating or
mitigating factors before the court could sentence Hyatt to life without parole. Consequently, the
life without parole sentence in this case came within the statutory maximum . . . .” Id. at 22.

       The prior panel remanded the matter for resentencing, but stated that, “[w]ere it not for
Skinner, we would affirm the sentencing court’s decision to sentence Hyatt to life imprisonment
without the possibility of parole.” Id. at 22-23.



                                               -12-
                            E. RESOLUTION OF THE CONFLICT

        We hold that the prior panel in this case reached the correct result. Neither Miller nor
MCL 769.25 implicates the right to a jury trial under Apprendi and its progeny. Rather, our
Legislature’s implementation of Miller’s Eighth Amendment protections through MCL 769.25
simply establishes a procedural framework for protecting a juvenile’s Eighth Amendment rights
at sentencing. The sentencing procedure at issue in this case does not involve the concern at
issue in Apprendi, 530 US at 490, of factfinding that increases the maximum penalty for juvenile
homicide offenders. The instant case is not one in which the finding of a particular fact increases
the maximum penalty. Nor does the instant case involve a statutory scheme that makes the
imposition of life without parole contingent on any particular finding. Under MCL 769.25, the
statutory maximum for juvenile offenders—assuming the requisite motion has been filed—is a
life-without-parole sentence, and the sentencing authority, in imposing that rare sentence, is not
tasked with finding any particular fact before arriving at such a sentence. A careful examination
of both Miller and MCL 769.25 compels this result.

        At the outset, we reject arguments that the Supreme Court’s decision in Miller can be
read to implicate the Sixth Amendment; we also reject the idea that the decision in Miller
suggests the right to have a jury determination on the sentence of life without parole. In this
respect, it is important to note the Court’s concern in Miller. In Miller, the Court was concerned
with the imposition of a disproportionate sentence on juvenile offenders. The risk of a
disproportionate sentence was, for purposes of the Eighth Amendment, unacceptable under a
system of mandatory life-without-parole sentences for certain homicide offenses. Miller, 132 S
Ct at 2469 (“By making youth (and all that accompanies it) irrelevant to imposition of that
harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.”).
To alleviate this concern, the Court created a framework for protecting a juvenile’s Eighth
Amendment right against disproportionate punishment. Important to our present case, this
framework does not make the imposition of a life-without-parole sentence contingent upon the
finding of a certain fact. The Court’s decision in Miller did not require a sentencing authority to
consider an offender’s youth before aggravating the available penalty. Rather, the Court
imposed an individualized sentencing mandate for juvenile offenders convicted of homicide
offenses. Individualized sentencing was required to ensure proportionality, not to aggravate the
maximum penalty available under the law. Hence, a sentencing authority remains free, under
Miller, to impose a life-without-parole sentence based solely on the jury’s verdict. Miller simply
holds that a framework of protections required by the Eighth Amendment must be implemented
in order to ensure that the imposition of the maximum available penalty—life without parole—is
proportionate to the particular offender and the particular offense. In short, the remodeling that
Miller performed on life-without-parole sentences for juveniles did not touch the ceiling—or
floor, for that matter—of the available sentence for juvenile homicide offenders.

       In support of our interpretation of Miller’s demands, we note the Supreme Court’s
discussion of Miller in Montgomery.6 Notably, in Montgomery, 136 S Ct at 735, albeit not


6
 Again, neither the panel in Skinner nor the prior panel in this case had the benefit of
Montgomery’s analysis.


                                               -13-
within the context of a Sixth Amendment discussion, the Supreme Court expressly recognized
that its decision in Miller did not require a sentencing authority to make a finding of fact on a
child’s incorrigibility before imposing a life-without-parole sentence. As stated in Montgomery,
“[t]hat Miller did not impose a formal factfinding requirement [regarding incorrigibility] does
not leave States free to sentence a child whose crime reflects transient immaturity to life without
parole. To the contrary, Miller established that this punishment is disproportionate under the
Eighth Amendment.” Id. In accordance with Montgomery’s conclusion about Miller’s demands,
we decline to find anything in Miller that implicates a defendant’s Sixth Amendment rights.7

        This is not to say that the sentencing procedure envisioned by Miller does not involve any
factfinding.8 However, the procedure described by Miller is missing key components for
purposes of Apprendi and its progeny: nowhere in Miller’s individualized sentencing mandate is
the idea that Miller altered the maximum punishment available for juvenile offenders or made
the imposition of any punishment contingent on factfinding. In other words, the Court did not
hold that a life-without-parole sentence was unavailable unless the sentencing authority found
certain facts. In this sense, Miller did not impose any aggravating factors such as those that were
at issue in Ring, 536 US at 591-592, where, under Arizona law, which was enacted in response to
Eighth Amendment precedent, the jury’s verdict alone was insufficient to authorize capital
punishment and a death sentence required additional findings on certain aggravating factors.
Contrastingly, Miller merely provided certain considerations that must be taken into account by a
sentencing authority when imposing the maximum sentence—life without parole—in order to
protect a juvenile’s Eighth Amendment right against a disproportionate, non-individualized
sentence.



7
  Although they are not binding on this Court, we note that two of the only cases to consider this
issue in another state reached the same result regarding whether Miller requires a jury
determination. See State v Fletcher, 149 So3d 934, 943 (La Ct App, 2014); People v Gutierrez,
unpublished opinion of the California Court of Appeal, issued June 22, 2016 (Docket No.
B261989), p 6-7. Notably, in Fletcher, 149 So3d at 943, the Louisiana Court of Appeals rejected
the idea that Miller created a “new statutory maximum” for purposes of Apprendi; further,
Fletcher rejected the idea that Miller required proof of an additional element before a sentencing
authority could impose a life-without parole sentence. Rather, reasoned the Court in Fletcher,
Miller “merely mandates a hearing at which youth-related mitigating factors can be presented to
the sentencer and considered in making a determination of whether the life sentence imposed
upon a juvenile killer should be with or without parole eligibility.” Id.
8
  For instance, Miller requires a hearing at which a court can receive evidence about, among
other matters, the circumstances of the homicide offense, including the juvenile’s role in the
offense. Miller, 132 S Ct at 2468. Such a hearing will almost inevitably produce conflicting
evidence about the extent of the offender’s role, with the prosecution likely seeking to maximize
the juvenile defendant’s involvement in the homicide and the juvenile defendant seeking to
minimize that role. A sentencing judge tasked with weighing the offender’s role in the offense,
when faced with conflicting evidence, will necessarily have to make a determination about which
evidence to believe, i.e., a factual finding.


                                               -14-
       Hence, Miller does not implicate the type of factfinding prohibited by Apprendi. The
process described in Miller was merely a means of ensuring that the maximum sentence
available under the law—life without parole—was proportionate to the particular offender at
issue. The considerations required by Miller’s individualized sentencing guarantee are
sentencing factors, not elements that must be found before a more severe punishment is
authorized. See Apprendi, 530 US at 482-483, 485-486. As succinctly stated in Alleyne, 133 S
Ct at 2163, Sixth Amendment jurisprudence has “recognized that broad sentencing discretion,
informed by judicial factfinding, does not violate the Sixth Amendment.” 9

        However, the conclusion that Miller does not require certain factual findings in order to
impose upon a juvenile offender a sentence of life without parole is not, by itself, dispositive of
the issue raised. As the Supreme Court in Montgomery acknowledged, the implementation of
Miller’s directives was a matter left largely to the states. Montgomery, 136 US at 735. We now
turn to the legislative response at issue in this case, MCL 769.25, in order to determine if the
right to a jury determination can be found therein.

        Careful examination of MCL 769.25 reveals that our Legislature did not alter the
statutory maximum sentence that may be imposed based solely on the jury’s verdict, nor did our
Legislature make the imposition of the statutory maximum dependent on any particular finding
of fact. The statute provides that, in order to sentence a juvenile defendant to life without parole,
the prosecution must, in a case involving an enumerated homicide offense, file the requisite
motion within the specified time period. MCL 769.25(2)-(3). If the prosecuting attorney files
this motion, the trial court “shall conduct a hearing on the motion as part of the sentencing
process.” MCL 769.25(6). At the hearing, the trial court is to consider “the factors listed in
Miller v Alabama . . . and may consider any other criteria relevant to its decision, including the
individual’s record while incarcerated.” MCL 769.25(6). Then, in what would appear to be an
effort to aid appellate review of the sentence, the trial 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(7).

        In sum, MCL 796.25 does two important things. As an initial matter, the statute plainly
states that the statutory maximum for the enumerated homicide offenses, in the event the
prosecution files the requisite motion, is life without parole. Any contention that MCL 769.25




9
  We briefly note Justice Breyer’s concurring opinion in Miller, in which he takes the view that,
in order to impose a life-without-parole sentence on a juvenile offender, there must be a finding
that the offender killed or intended to kill. Miller, 132 S Ct at 2475 (BREYER, J., concurring). A
life-without-parole sentence should be, according to Justice Breyer, “forbid[den]” without such a
finding. Id. If this view were the current state of the law, it might change our Sixth Amendment
analysis, particularly in this case, which involved felony murder in a multiple-offender situation.
However, Justice Breyer’s view was not adopted by the majority in Miller, and we see no Sixth
Amendment implications in the majority’s decision in Miller.


                                                -15-
creates a “default”10 sentence of a term of years in all instances ignores the plain language of the
statute. MCL 769.25(2) plainly permits the prosecution to seek life without parole upon the
filing of the requisite motion. Once this motion is filed, the statutory maximum is life without
parole, and the trial court has discretion whether to sentence up to that statutory maximum.

         This leads to our second point. MCL 769.25 does not make the imposition of this
statutory maximum contingent on any particular fact. Rather, the statute mirrors what is required
by Miller—individualized sentencing. That is, MCL 769.25 does away with mandatory life-
without-parole sentences and requires the trial court, when the maximum sentence is sought, to
make the individualized sentencing determination required by Miller. If, consistent with Miller’s
demands, the sentencing judge deems life without parole to be appropriate—meaning that the
case before it is one of the rare cases described by Miller—the trial court is authorized by the
jury’s verdict to impose a life-without-parole sentence. Indeed, as is the case with Miller, our
statutory scheme does not require any additional findings before the imposition of a life-without-
parole sentence is warranted. The sentencing judge decides whether to exercise her discretion to
impose that statutory maximum by considering the so-called Miller factors in order to satisfy
Miller’s individualized sentencing mandate. In sum, in the case where the prosecution files the
requisite motion, the “ ‘statutory maximum’ for Apprendi purposes” see Blakely, 542 US at 303,
is life without parole. This sentence, then, is permitted “solely on the basis of the facts reflected
in the jury verdict . . . .” Id. This type of sentencing scheme does not run afoul of Apprendi and
its progeny.

         In this sense, the sentencing scheme imposed by MCL 769.25 is different from the
schemes at issue in cases such as Apprendi, Blakely, Booker, and Cunningham—and that
difference is of critical importance for purposes of the Sixth Amendment inquiry. In particular,
we note that in Apprendi, 530 US at 470, the potential of an enhanced sentence was based, in
part, upon the prosecution’s filing of a motion for such a sentence upon the finding that the
defendant acted with a biased purpose—which was a fact not encompassed by the jury’s verdict.
Here, by contrast, the prosecution files a motion to sentence up to the maximum as allowed by
the jury’s verdict. The filing of the prosecution’s motion in the instant case is not meant to
trigger a factual finding that will increase the maximum sentence; instead, the motion is filed to
initiate the Eighth Amendment protections demanded by Miller.

       It is argued that a sentencing judge will necessarily engage in factual finding during the
Miller analysis. On this point, we agree. However, as noted above, that a sentencing judge
makes factual findings is not dispositive. The dispositive question is whether the statute
authorizes increased punishment, contingent on certain factual findings. Ring, 536 US at 602.
Indeed, “[a] statutory requirement that a judge make findings, however, does not mean that any



10
  The suggestion that our Supreme Court in Carp, 496 Mich at 458, declared that MCL 769.25
created a “default” sentence of a term of years in all instances is inaccurate. Although Carp
mentioned a default sentence, it did so in describing the procedure for sentencing a juvenile in
the absence of a motion filed by the prosecution seeking a life-without-parole sentence. Id. at
458.


                                                -16-
specific finding is necessary for imposition of the sentence.” State v Fell, 210 Ariz 554, 559;
115 P3d 594 (2005).11 MCL 769.25 does not authorize increased punishment, much less make
such an increase contingent on any facts. Instead, the factfinding that will inevitably occur
during the Miller analysis is the kind which, as stated in Cunningham, “everyone agrees
encounters no Sixth Amendment shoal.” Cunningham, 549 US at 294 (citation and quotation
marks omitted). See also Alleyne, 133 S Ct at 2163 (“Our ruling today does not mean that any
fact that influences judicial discretion must be found by a jury. We have long recognized that
broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth
Amendment.”). Any factfinding that occurs “do[es] not pertain to whether the defendant has a
legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement
upon the traditional role of the jury is concerned.” Blakely, 542 US at 309.

        As a comparison, we turn to the sentencing of criminal defendants by federal district
courts and note the type of judicial factfinding that occurs under the sentencing factors listed in
18 USC 3553(a).12 Any finding of facts that occurs with regard to the statutory factors is meant
“to inform individual sentencing decisions and to help meet the Sentencing Commission’s twin-
goals of sentencing—uniformity and proportionality,” and does not affect the maximum sentence
that may be imposed. United States v Ali, 508 F3d 136, 146 n 15 (CA 3, 2007). Like the federal
sentencing guidelines post-Booker, there is no mandatory or default sentence under MCL 769.25
that must be imposed unless the sentencing judge finds facts that the jury never found nor were
admitted by the defendant. As noted by the United States Supreme Court in Rita v United States,
551 US 338, 352; 127 S Ct 2456; 168 L Ed 2d 203 (2007), “[t]his Court’s Sixth Amendment
cases do not automatically forbid a sentencing court to take account of factual matters not
determined by a jury and to increase the sentence in consequence.” Rather, “[t]he Sixth
Amendment question” concerns “whether the law forbids a judge to increase a defendant’s


11
   Although decisions from other states are not binding, we may consider them as persuasive
authority. People v Jackson, 292 Mich App 583, 595 n 3; 808 NW2d 541 (2011).
12
   Pursuant to 18 USC 3553(a), “[t]he court, in determining the particular sentence to be
imposed, shall consider—
              (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant;

               (2) the need for the sentence imposed—

              (A) to reflect the seriousness of the offense, to promote respect for the
       law, and to provide just punishment for the offense;

               (B) to afford an adequate deterrence to criminal conduct;

               (C) to protect the public from further crimes of the defendant; and

             (D) to provide the defendant with needed education or vocational training,
       medical care, or other correctional treatment in the most effective manner[.]”


                                               -17-
sentence unless the judge finds facts that the jury did not find (and the offender did not
concede).” Id.

        We also reject any argument that the instant case is comparable to the sentencing scheme
that was at issue in Ring, 536 US 584, a case cited heavily by the parties. In Ring, the statutory
scheme at issue stated that the maximum penalty was death or life imprisonment, but it
conditioned the imposition of the death penalty, which represented an increase in the authorized
punishment, on further factual findings. Id. at 591-592. Those additional findings concerned
aggravating and mitigating circumstances. Id. at 592. In the instant case, it is true that MCL
769.25(7) uses the term “aggravating and mitigating circumstances.” The key difference, once
again, is that MCL 769.25 does not make the imposition of life without parole contingent upon
certain findings. MCL 769.25 only requires that which Miller requires—individualized
sentencing based on the so-called Miller factors. The juvenile defendant is—based solely on the
jury’s verdict and the prosecution’s motion—eligible for a life-without-parole sentence, the
statutory maximum.

        In sum, all that is mandated by MCL 769.25 is the individualized sentencing required, as
stated in Miller, by the Eighth Amendment. The analysis on the Miller factors does not
aggravate punishment; instead, the analysis acts as a means of mitigating punishment because it
acts to caution the sentencing judge against imposing the maximum punishment authorized by
the jury’s verdict, a sentence which Montgomery cautioned is disproportionate for “the vast
majority of juvenile offenders . . . .” Montgomery, 136 S Ct at 736. Indeed, unless the defendant
is the rare juvenile, the Miller analysis, as incorporated by MCL 769.25, has the effect of
mitigating the available punishment.

        The idea that Miller—and MCL 769.25 by its incorporation of the “Miller factors”—sets
forth a framework of mitigation, rather than aggravation, is apparent from the text of the Miller
decision itself. See Miller, 132 S Ct at 2475 (emphasis added) (“our individualized sentencing
decisions make clear that a judge or jury[13] must have the opportunity to consider mitigating
circumstances before imposing the harshest possible penalty for juveniles.”). Indeed, the
Supreme Court’s decision in Miller is rife with arguments concerning why juveniles are
constitutionally different from adults and why these differences diminish the culpability of
juveniles. See, e.g., id. at 2464 (explaining that juveniles are “constitutionally different from
adults for purposes of sentencing” because, among other reasons, they have “diminished
culpability”). The fault of a mandatory life-without-parole sentence, according to Miller, was
that it failed to give the sentencing authority “the opportunity to consider mitigating
circumstances before imposing the harshest possible penalty for juveniles” and that such a



13
   As aptly noted by the panel in Skinner, 312 Mich App at 491, the “passing reference to ‘a
judge or jury’ ” in Miller is hardly illuminating with regard to the issue at hand. The issue before
the Court in Miller was limited to Eighth Amendment concerns, and the Court was not called
upon to weigh in on the matter now before us. Hence, like the panel in Skinner—and, for that
matter, our Supreme Court in Carp, 496 Mich at 491 n 20—we assign no significance to the
phrase, “judge or jury” as it is used in Miller.


                                               -18-
mandatory sentencing scheme violated the principle of proportionality by forcing the sentencing
authority to ignore “age and age-related characteristics . . .”, i.e., those characteristics which
diminish the culpability of the juvenile, thereby warranting a lesser sentence. Id. at 2475. The
Court in Miller specifically invoked the “mitigating qualities of youth” in explaining why
individualized sentencing was necessary for the imposition of the harshest possible penalty
available for juveniles—life without parole. Id. at 2467 (citation and quotation marks omitted).
This culminated in the Court announcing the so-called Miller factors, all of which speak to
mitigation and why “chronological age and its hallmark features” should be considered when
sentencing a juvenile. Id. at 2468. Put simply, Miller required individualized sentencing as a
means of mitigating the maximum penalty authorized by the jury’s verdict, rather than
aggravating the penalty beyond that which was set forth by law.14 So too, MCL 769.25 sets a
maximum punishment—in the event the prosecution files the requisite motion—at life without
parole, and mandates that the sentencing judge consider the Miller factors in a way that
mitigates, rather than enhances, the maximum available penalty.

       Viewing the Miller factors as a means of mitigation is not to suggest, however, that life
without parole remains the default sentence for juveniles convicted of first-degree murder after
Miller. Indeed, it is doubtful whether that result could be squared with Miller’s conclusions
about the constitutional infirmities inherent in a mandatory life-without-parole sentencing
scheme for juveniles. Instead, the Miller factors act as a means of mitigation in the sense that
they must be considered by the sentencing judge when he or she is determining whether life
without parole is an appropriate sentence to impose.

        Our decision today comports with those of numerous state and lower federal courts that
have considered, albeit in slightly different contexts, the intersection of the Eighth Amendment’s
proportionality requirements and the Sixth Amendment right to a jury trial. The cases from
which we draw support stemmed from the United States Supreme Court’s decisions in Atkins v
Virginia, 536 US 304; 122 S Ct 2242; 153 L Ed 2d 335 (2002)—concluding that the Eighth
Amendment barred the imposition of capital punishment on defendants who are intellectually
disabled, and Tison v Arizona, 481 US 137; 107 S CT 1676; 95 L Ed 2d 127 (1987)—banning
the imposition of the death penalty in felony-murder cases unless the defendant: (a) was a major
participant in the offense; or (2) acted with at least a reckless indifference to human life. The
consensus in these cases is that when the Eighth Amendment’s proportionality requirement has
barred the imposition of the death penalty based on a certain factor or factors that suggested
diminished culpability, the determination of whether those certain factors exist is not one that is
subject to a jury determination. Stated differently, the Eighth Amendment prohibitions are
considered to be mitigating factors that act as a bar against imposing the statutory maximum
penalty, rather than as elements that enhance the maximum possible penalty, and the
determination of whether those mitigating factors exist need not, under Apprendi and its


14
  To be sure, however, Miller made clear that mitigation was more often than not the appropriate
route, emphasizing that a life-without-parole sentence would be proportionate for only the rare
juvenile “whose crime reflects irreparable corruption.” Miller, 132 S Ct at 2469 (citation and
quotation marks omitted).


                                               -19-
progeny, be made by a jury. See, e.g., State v Agee, 358 Or 325, 364; 364 P3d 971 (2015)
(Oregon, 2015) (holding that a determination on intellectual disability is a mitigating factor that
can be made by a judge and does not, under Apprendi and Ring, require a jury determination);
State v Hill, 177 Ohio App 3d 171, 187; 894 NE2d 108 (Ohio App, 2011) (rejecting the idea that
the Eighth Amendment’s prohibition on imposing the death penalty on an intellectually disabled
adult required a jury determination of intellectual disability since such a determination acted to
mitigate, rather than enhance, the available punishment); Commonwealth v Bracey, 604 Pa 459,
473-474; 986 A2d 128 (2009) (finding that there was no right to a jury trial on an Atkins claim
under Ring); State v Galindo, 278 Neb 599, 655; 774 NW2d 190 (2009) (rejecting the idea that
Tison findings were “elements” of the offense); State v Nichols, 219 Ariz 170, 172; 195 P3d 207
(2008) (recognizing that the Sixth Amendment did not require that a jury make Tison findings,
but a state statutory scheme could require as much if the legislature so chose); State v Johnson,
244 SW3d 144, 151 (Mo, 2008) (holding that a finding of intellectual disability was a finding
that removed the defendant from consideration for the death penalty and was therefore not the
equivalent of an aggravating factor that required a jury determination under Ring); State v Grell,
212 Ariz 516, 526-527; 135 P3d 696 (2006) (discussing mitigating factors from Atkins and Tison
and concluding that there is no right to a jury trial on either set of factors under Apprendi and its
progeny); Head v Hill, 277 Ga 255, 258; 587 SE2d 613 (2003) (opining that because intellectual
disability was an “exemption” from the death penalty, it was a mitigating factor and not “the
functional equivalent of an element” of the offense); In re Johnson, 334 F3d 403, 405 (CA 5,
2003) (stressing that a mitigating analysis of intellectual disability—required by the Eighth
Amendment, per Atkins—was not the functional equivalent of an element of a greater offense).
See also LaFave, § 26.4(i), p 1019-1020 (“So far, lower courts have rejected arguments to equate
the factors which as a matter of Eighth Amendment law are required for death eligibility with
elements. The rules in Tison and Atkins have instead been treated as defenses to, not elements
of, capital murder.”).15



15
   The United States Supreme Court has denied leave in some of these cases, see, e.g., Galindo v
Nebraska, 559 US 1010; 130 S Ct 1887; 176 L Ed 2d 372 (2010), but has yet to expressly weigh
in on the issue, post-Apprendi. With regard to the Atkins line of cases, the United States
Supreme Court in Schriro v Smith, 546 US 6, 7; 126 S Ct 7; 163 L Ed 2d 6 (2005), left to the
states to determine how to implement Atkins and to decide whether a judge or jury should weigh
in on the mitigating factor of intellectual disability. We also note that with regard to the
offender’s role in the offense, the Supreme Court in Cabana v Bullock, 474 US 376; 106 S Ct
689; 88 L Ed 2d 704 (1986), abrogated in part on other grounds Pope v Illinois, 481 US 497, 503
n 7; 107 S Ct 1918; 95 L Ed 2d 439 (1987), discussed Enmund v Florida, 458 US 782; 102 S Ct
3368; 73 L Ed 2d 1140 (1982), a case which served as a precursor to Tison and which drew
similar conclusions about the Eighth Amendment’s concern with the offender’s role in a capital
offense. Pertinent to our discussion, the Supreme Court in Cabana held that the offender’s role
in the offense did not concern guilt or innocence and did not establish an element of capital
murder that had to be found by a jury. Cabana, 474 US at 385. Rather, the determination of the
offender’s role, for purposes of the Eighth Amendment, was a consideration of proportionality
under the Eighth Amendment, and was not a decision that required a jury determination.
Accordingly, to the extent the Supreme Court has weighed in on this issue, it has determined that

                                                -20-
        These cases are instructive in the instant case. Although the Court’s holding in Miller did
not produce an outright ban on the imposition of life-without-parole sentences for juvenile
homicide offenders, it nevertheless declared that in the “vast majority” of cases, such a sentence
will be disproportionate under the Eighth Amendment. Similar to the proportionality analysis of
Atkins and Tison, the Supreme Court in Miller concluded that a certain characteristic of the
offender rendered the maximum punishment authorized by statute to be disproportionate because
that characteristic suggested diminished culpability on the part of the offender. And, as in Atkins
and Tison, the Supreme Court in Miller recognized that the Eighth Amendment required that a
certain framework of protections needed to be considered before the maximum punishment
authorized by statute could be imposed. Thus, the decision in Miller demonstrates that a juvenile
offender’s age is a mitigating factor that is to be considered in rendering a proportionate sentence
for a juvenile who is convicted of first-degree murder.16 Our Legislature enacted MCL 769.25 in
a way that essentially mirrored that which is required by Miller. Consideration of the Miller
factors under MCL 769.25 acts to mitigate punishment, rather than acting as the functional
equivalent of an element of a greater offense.

                                        F. CONCLUSION

        In sum, we find that Miller’s individualized sentencing mandate, as incorporated by MCL
769.25, does not run afoul of Sixth Amendment precedent. A judge, not a jury, is to make the
determination of whether to impose a life-without-parole sentence or a term-of-years sentence
under MCL 769.25. Accordingly, we reject the result reached in Skinner and conclude that the
prior panel in this case was correct in its analysis.

                              IV. APPLICATION TO THIS CASE

       As for the outcome of the case before us, the prosecution asks that we do two things: (1)
affirm the life-without-parole sentence imposed on defendant Hyatt; and (2) articulate the
appropriate standard of review on appeal for a juvenile life-without-parole sentence. In
addressing these issues we find it necessary to adhere to and incorporate Miller and
Montgomery’s oft-repeated warnings about how rare life-without-parole sentences for juvenile
offenders will be proportionate.




a finding on mitigating factors does not implicate the right to a jury trial. However, before we
place too much stock in Cabana, we must note that the case was decided prior to Apprendi.
Accordingly, we place greater emphasis on the state court and lower federal court decisions
noted above.
16
  Accordingly, we caution that the filing of a motion seeking a life-without-parole sentence
under MCL 769.25(2) and the resultant Miller hearing is not to be treated as but a perfunctory
exercise that will authorize the imposition of a life-without-parole sentence. Such an approach
defies what was first announced in Miller and made even clearer in Montgomery: life-without-
parole is to be imposed on juvenile offenders in only the rarest of cases.


                                               -21-
                               A. THE TRULY RARE JUVENILE

        As noted, Miller stopped shy of—and did not expressly consider—imposing a categorical
ban on life-without-parole sentences for juveniles, but the Supreme Court repeatedly admonished
sentencing authorities to impose the penalty of life without parole in only the rarest of
circumstances, given the many mitigating factors of youth. In this regard, we note the concerns
raised in Miller—and Roper and Graham for that matter—concerning how juveniles are different
from adults in terms of their culpability and the capacity for change. Notably, these cases
underscored that juveniles tend to be less mature than adults, are more likely to possess an
“underdeveloped sense of responsibility,” and are more likely to engage in reckless behavior.
Roper, 543 US at 569 (citation and quotation marks omitted). Largely for these reasons, states
almost universally prohibit juveniles from making many decisions that will have long-term
effects such as “voting, serving on juries, or marrying without parental consent.” Id.

        In addition, juveniles “are more vulnerable or susceptible to negative influences and
outside pressures, including peer pressure.” Id. To this end, children “have limited control over
their own environment and lack the ability to extricate themselves from horrific, crime-
producing settings.” Miller, 132 S Ct at 2464 (citations, quotation marks, and alteration
omitted). And, juveniles have a lesser-defined sense of character than the typical adult, and a
juvenile’s “personality traits . . . are more transitory, less fixed.” Roper, 543 US at 570.
Juveniles, noted the Court in Graham, “are more capable of change than are adults, and their
actions are less likely to be evidence of irretrievably depraved character than are the actions of
adults.” Graham, 560 US at 68 (citation and quotation marks omitted). In Graham, the Court
explained that studies have demonstrated that “parts of the brain involved in behavior control
continue to mature through late adolescence.” Id. (citations omitted). Hence, “youth is more
than a chronological fact,” and “its signature qualities are all transient.” Miller, 132 S Ct at 2467
(citations and quotation marks omitted).

        For all of these reasons, the Court explained in Roper, 543 US at 570, that “[f]rom a
moral standpoint it would be misguided to equate the failings of a minor with those of an adult,
for a greater possibility exists that a minor’s character deficiencies will be reformed.” “[T]he
distinctive attributes of youth” reasoned the Court in Miller, 132 S Ct at 2465, “diminish the
penological justifications for imposing the harshest sentence on juvenile offenders, even when
they commit terrible crimes.” Thus, when it comes to sentencing a juvenile, concern must be
given to the offender’s youth and its attendant characteristics. This was the impetus for Miller’s
individualized sentencing mandate. See id. (emphasizing that “youth matters in determining the
appropriateness of a lifetime of incarceration without the possibility of parole.”), and id. at 2466
(“By removing youth from the balance—by subjecting a juvenile to the same life-without-parole
sentence applicable to an adult—[mandatory sentencing schemes] prohibit a sentencing authority
from assessing whether the law’s harshest term of imprisonment proportionately punishes a
juvenile offender.”). However, this is not to say that a juvenile should not face consequences for
his or her actions; rather, in rendering punishment, consideration must be given to the fact that
juvenile offenders are generally less culpable than their adult counterparts. Graham, 560 US at
68.

      Because juveniles are different from adults and have still-evolving characters, the
Supreme Court has noted how difficult it can be for a sentencer to conclude that life-without-

                                                -22-
parole, the harshest possible penalty for a juvenile homicide offender, is proportionate to a
particular offense and offender. In Roper, 543 US at 569, the Court recognized that “general
differences” between juveniles and adults “demonstrate that juvenile offenders cannot with
reliability be classified among the worst offenders.” (Emphasis added). The Roper Court, citing
Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity,
Diminished Responsibility, and the Juvenile Death Penalty, 58 Am Psychologist 1009, 1014-
1016, (2003), also remarked that “[i]t is difficult even for expert psychologists to differentiate
between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the
rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 US at 573. If
this determination is difficult for even trained psychologists, we would be remiss if we did not
acknowledge our concerns about sentencing courts—or reviewing courts for that matter—
accurately assessing, or in essence forecasting, whether an individual who committed a crime
while still a minor is and will be irreparably corrupt for the rest of his or her life, and thus,
accurately meting out such a severe but proportionate sentence.

         These concerns led the Court in Miller to caution that “given all we have said
in Roper, Graham, and this decision about children’s diminished culpability and heightened
capacity for change, we think appropriate occasions for sentencing juveniles to this harshest
possible penalty will be uncommon.” Miller, 132 S Ct at 2469 (emphasis added). The Court
returned to the idea of the infrequency of proportionate life-without-parole sentences for juvenile
offenders in Montgomery when it declared that “[a]lthough Miller did not foreclose a sentencer’s
ability to impose life without parole on a juvenile, the Court explained that a lifetime in prison is
a disproportionate sentence for all but the rarest of children, those whose crimes reflect
irreparable corruption.” Montgomery, 136 S Ct at 726 (citations and quotation marks omitted;
emphasis added). In fact, the majority opinion in Montgomery used the words “rare” or “rarest”
six times in describing when a life-without-parole sentence would be appropriate after Miller.
See Montgomery, 136 S Ct at 726 (declaring life without parole to be disproportionate “for all
but the rarest of children . . .”); at 733 (emphasizing that although “a sentencer might encounter
the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is
impossible and life without parole is justified[,]” a life-without-parole sentence will by and large
be disproportionate); at 734 (“ . . . Miller determined that sentencing a child to life without parole
is excessive for all but the rare juvenile offender whose crime reflects irreparable corruption”)
(citations and quotation marks omitted); (explaining that Miller declared a life-without-parole
sentence to be unconstitutional “for all but the rarest of juvenile offenders”); (“[a]fter Miller, it
will be the rare juvenile offender who can receive that same sentence”); and ( . . . Miller drew a
line between children whose crimes reflect transient immaturity and those rare children whose
crimes reflect irreparable corruption.”).

                       B. IMPLEMENTING MILLER AT SENTENCING

        The cautionary language employed by the Court in Roper, Graham, Miller, and
Montgomery must be honored by this Court. In light of such language, and in light of our need
to review defendant Hyatt’s sentence under Miller, we conclude that, when sentencing a juvenile
offender, a trial court must begin with the understanding that, in all but the rarest of
circumstances, a life-without-parole sentence will be disproportionate for the juvenile offender at
issue. Thus, a sentencing court must begin its analysis with the understanding that life-without-
parole is, unequivocally, only appropriate in rare cases. Sentencing courts are to do more than

                                                -23-
pay mere lip service to the demands of Miller. A sentencing court must operate under the
understanding that life without parole is, more often than not, not just inappropriate, but a
violation of the juvenile’s constitutional rights. As explained in Montgomery:

       Miller then, did more than require a sentencer to consider a juvenile offender’s
       youth before imposing life without parole; it established that the penological
       justifications for life without parole collapse in light of the distinctive attributes of
       youth. Even if a court considers the child’s age before sentencing him or her to a
       lifetime in prison, that sentence still violates the Eighth Amendment for a child
       whose crime reflects ‘unfortunate yet transient immaturity. Because Miller
       determined that sentencing a child to life without parole is excessive for all but
       the rare juvenile offender whose crime reflects irreparable corruption, it rendered
       life without parole an unconstitutional penalty for a class of defenders because of
       their status—that is, juvenile offenders whose crimes reflect the transient
       immaturity of youth. [Montgomery, 136 S Ct at 734 (quotation marks and
       citations omitted).]

        We note that nearly every situation in which a sentencing court is asked to weigh in on
the appropriateness of a life-without-parole sentence will involve heinous and oftentimes
abhorrent details. After all, the sentence can only be imposed for the worst homicide offenses.
However, the fact that a vile offense occurred is not enough, by itself, to warrant imposition of a
life-without parole sentence. The court must undertake a searching inquiry into the particular
juvenile, as well as the particular offense, and make the admittedly difficult decision of
determining whether this is the truly rare juvenile for whom life without parole is constitutionally
proportionate as compared to the more common and constitutionally protected juvenile whose
conduct was due to transient immaturity for the reasons addressed by our United States Supreme
Court. And in making this determination in a way that implements the stern rebuke of Miller and
Montgomery, the sentencing court must operate under the notion that more likely than not, life-
without-parole is not proportionate.

        That such an approach is required under Miller becomes even more apparent when one
considers the warnings in Roper, Graham, and Miller about how difficult it is for even a trained
psychologist, let alone a sentencing judge, to make any definitive determinations about a
juvenile’s capabilities for reform. See Roper, 543 US at 573 (remarking that the transient
qualities of youth make determinations about a juvenile’s capability for reform exceedingly
difficult). In fact, the Court in Graham, 560 US at 77-78, felt so strongly about the difficulty of
distinguishing “the few incorrigible juvenile offenders from the many that have the capacity for
change” that it rejected—in the case of nonhomicide juvenile offenders—a case-specific
sentencing scheme similar to the one it later adopted in Miller, and decided that because the
determination was so difficult, it would instead impose a categorical ban in nonhomicide cases.
Because MCL 769.25 permits a case-by-case determination upon the filing of the requisite
motion, trial courts must operate with the understanding that, more likely than not, a life-
without-parole sentence is disproportionate for the juvenile offender being sentenced. Indeed, as
the Supreme Court warned in Roper, Graham, and Miller, given the unique and transient
qualities of youth, even the most thorough, well-intentioned, and earnest sentencing courts
encounter a significant risk of reaching the wrong conclusion about a juvenile’s character being
irreparably corrupt. And this risk carries with it the grave consequences of violating the Eighth

                                                 -24-
Amendment and of denying an undeserving individual—who it must be remembered is
nevertheless deserving of significant punishment based upon the conviction—any opportunity to
leave a prison he or she entered while still a child. It was not a hollow exercise for the Supreme
Court in Miller and Montgomery to repeatedly emphasize how truly rare a life-without-parole
sentence will be proportionate. Hence, we emphasize the caution with which a sentencing court
must view the imposition of life without parole for juvenile offenders.

                          C. STANDARD OF APPELLATE REVIEW

       The same concerns noted above exist on appeal when a juvenile challenges the
imposition of his or her life-without-parole sentence. That leads us to a second question, one
raised by the prosecution and one that is inherently necessary in weighing in on defendant
Hyatt’s sentence in the instant case. That is, given the limited circumstances in which a life-
without-parole sentence is proportionate and constitutional, what is to be the appropriate
standard of review for an appellate court reviewing such a sentence?

        As noted by our Supreme Court in People v Milbourn, 435 Mich 630, 635; 461 NW2d 1
(1990), our Legislature, in setting forth a range of appropriate punishments for criminal offenses,
has entrusted sentencing courts with the responsibility of selecting the appropriate punishment
from statutorily authorized sentencing ranges. These sentencing ranges embody the “principle of
proportionality” because they allow a sentencing judge to tailor the sentence to the particular
offense and offender at issue. Id. Accordingly, the Milbourn Court believed “that the
Legislature’s purpose” in enacting such a scheme was “best served by requiring judicial
sentencing discretion to be exercised according to the same principle of proportionality that has
guided the Legislature in its allocation of punishment over the entire spectrum of criminal
behavior.” Id. at 635-636. See also id. at 651 (“The Legislature then left to the judiciary, with
regard to most crimes, the task of determining the sentence to be imposed upon each offender
within given bounds.”). The limit on the judicial discretion to be exercised in imposing penalties
was that the punishment should be proportionate to the offender and the offense. Id. at 651-652.
Hence, appellate review of the sentence imposed is for abuse of discretion, to determine whether
the 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 636, 654.

         Turning to the instant case, we believe that the appropriate standard of review in cases
where a judge imposes a sentence of life without parole on a juvenile defendant is a common
three-fold standard, the likes of which are applied in a variety of contexts. Any factfinding by
the trial court is to be reviewed for clear error, any questions of law are to be reviewed de novo,
and the court’s ultimate determination as to the sentence imposed is for an abuse of discretion.
See People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013) (describing the standard for
reviewing a sentencing court’s findings of fact and conclusions of law); Milbourn, 435 Mich at
636, 654 (applying the abuse-of-discretion standard to sentencing review).

       However, this standard, particularly the abuse-of-discretion standard, requires further
explanation in this context. Because of the unique nature of the punishment of a life-without-
parole sentence for juveniles and the mitigating qualities of youth, we are obligated to clarify
what the abuse-of-discretion standard should look like in the context of life-without-parole

                                               -25-
sentences for juveniles. As will be discussed in more detail below, we hold that the imposition
of a juvenile life-without-parole sentence requires a heightened degree of scrutiny regarding
whether a life-without-parole sentence is proportionate to a particular juvenile offender, and even
under this deferential standard, an appellate court should view such a sentence as inherently
suspect.

        In order to provide meaningful appellate review under abuse-of-discretion standard for
juvenile life-without-parole sentences, a reviewing court must remain mindful that life without
parole is the maximum punishment that may be imposed for a juvenile offender under MCL
769.25. That this is the harshest penalty available under the law raises the stakes not just for the
defendant, but also for appellate review of the trial court’s sentencing decision. Hence, appellate
review of a juvenile life-without-parole sentence cannot be a mere rubber-stamping of the
penalty handed out by the sentencing court. In Milbourn, our Supreme Court repeatedly warned
that the maximum penalty available under the law is to be imposed for only the most serious
offenders and the most serious offenses or it would risk failing the proportionality test.
Milbourn, 435 Mich at 645-646. To impose the maximum possible penalty “in the face of
compelling mitigating circumstances would run against this principle [of proportionality] and
against the legislative scheme.” Id. at 653. Thus, in terms of appellate review, a reviewing court
is justifiably skeptical of a sentence which represents the maximum available punishment,
because such punishment is only available in limited, i.e., the most serious and extreme,
circumstances. See id. at 654. In order to impose the maximum possible penalty, the case must
“present a combination of circumstances placing the offender in [ ] the most serious . . . class
with respect to the particular crime . . . .” Id. at 654. Accordingly, sentencing courts should
guard against a routine imposition of the most severe penalty authorized by statute. Id. at 645.
Moreover, we pay heed to Milbourn’s cautionary sentiment that the unjust imposition of a
maximum sentence has the potential to shake “[t]he public’s faith in the just and fair
administration of justice . . . .” Id.

        We use the language employed in Milbourn as our starting point, but point out that
Milbourn’s sentiments ring even truer in the case of life-without-parole sentences for juveniles.
Such sentences are deemed to be an “unconstitutional penalty for a class of defendants because
of their status—that is, juvenile offenders whose crimes reflect the transient immaturity of
youth.” Montgomery, 136 S Ct at 734 (citation and quotation marks omitted). Applying the
cautionary language of Milbourn—that the imposition of the harshest possible punishment is to
be reserved and rendered with caution—in the context of Miller and Montgomery’s repeated and
express warnings about how infrequently a life-without-parole sentence will be constitutionally
proportionate for juveniles, we are convinced that appellate review, although done under the
abuse-of-discretion standard, should consider a juvenile life-without-parole sentence as
inherently suspect. While we do not suggest a presumption against the constitutionality of such a
sentence, we would be remiss not to note that such sentences should require a searching inquiry
into the record and the understanding that, more likely than not, the sentence imposed is
disproportionate. See, generally, Miller, 132 US at 2466; Milbourn, 435 Mich at 645-646. See
also Farrell, Strict Scrutiny Under the Eighth Amendment, 40 Fl St U L Rev 853, 856 (2013)
(stating that there is “reason to be skeptical” of the idea that life without parole—a particularly
harsh penalty—is proportionate for a class of offenders such as juveniles who are widely
recognized as having lessened culpability). Indeed, as the Court warned in Milbourn, 435 Mich
at 653, “[w]ith regard to the principle of proportionality, it is our judgment that the imposition of

                                                -26-
the maximum possible sentence in the face of compelling mitigating circumstances would run
against this principle . . . .” Time and again, our Supreme Court in Roper, Miller, Graham, and
Montgomery described the numerous ways in which mitigating circumstances—which are
compelling enough given the characteristics of youth to warrant a categorical bar on mandatory
life-without-parole sentences—are often present in the case of juveniles on account of their
youth. These mitigating circumstances—and the need for proper consideration of mitigating
circumstances in an individualized sentencing scheme—were the driving force behind Miller’s
prohibition on mandatory life-without-parole sentences for juveniles. And Miller and
Montgomery repeatedly emphasized that a life-without-parole sentence will only be
constitutionally proportionate for the truly rare juvenile.

        Accordingly, an appellate court, in order to give effect to our Supreme Court’s decision
in Milbourn and the United States Supreme Court’s direction in Miller and Montgomery, is to
conduct a searching inquiry and view as inherently suspect any life-without-parole sentence
imposed on a juvenile offender under MCL 769.25. See Roper, 543 US at 570 (announcing that
the differences between juveniles and adults “render suspect any conclusion that a juvenile falls
among the worst offenders.”). An appellate court must give meaningful review to a juvenile life-
without-parole sentence and cannot merely rubber-stamp the trial court’s sentencing decision.

        As a tool for undertaking this appellate review, we find it appropriate to borrow from a
framework employed by some federal courts. As noted, MCL 769.25 requires weighing a
variety of factors in determining whether the juvenile being sentenced is the rare juvenile
offender for whom life without parole is an appropriate sentence. In determining whether the
sentencing court abused its discretion in weighing the factors and arriving at its conclusion, we
find instructive the following analysis found in in United States v Haack, 403 F3d 997, 1004 (CA
8, 2005), noting certain situations that constitute an abuse of discretion:17

       A discretionary sentencing ruling, similarly, may be [an abuse of discretion] if a
       sentencing court fails to consider a relevant factor that should have received
       significant weight, gives significant weight to an improper or irrelevant factor, or
       considers only appropriate factors but nevertheless commits a clear error of
       judgment by arriving at a sentence that lies outside the limited range of choice
       dictated by the facts of the case.

                                   D. THE INSTANT CASE

       Turning to the instant case, we find the trial court committed an error of law by failing to
adhere to Miller and Montgomery’s directives about the rarity with which a life-without-parole


17
   In People v Steanhouse, 313 Mich App 1, 22; __ NW2d __ (2015), lv granted 499 Mich 934;
879 NW2d 252 (2016), this Court declined to apply Haack, given that the case concerned
sentencing factors listed in 18 USC 3553(a), and sentencing courts in Michigan are not required
to look at such factors. Here, by contrast, because a juvenile life-without-parole sentence
requires consideration of the Miller factors, we find instructive Haack’s description of certain
situations which constitute an abuse of discretion.


                                               -27-
sentence should be imposed. When deciding to sentence defendant Hyatt to life without parole,
the trial court focused on the Miller factors. However, the court gave no credence to Miller’s
repeated warnings that a life-without-parole sentence should only be imposed on the rare or
uncommon juvenile offender. This is inconsistent with Miller, and certainly inconsistent with
Montgomery.18 Indeed, the Court’s decisions in Miller and Montgomery make clear that
sentencing a juvenile to life without parole is more than a simple consideration of a set of factors.
In order to give any meaning to Miller’s discussions about proportionality and the mitigating
circumstances associated with youth, a sentencing court must pay heed to Miller’s discussion
about how rare a proportionate life-without-parole sentence will be. In order to warrant the
imposition of a life-without-parole sentence, the juvenile must be, as Miller unequivocally stated,
the truly rare individual who is incapable of reform.19

        Moreover, with regard to the sentencing decision in the instant case, we are concerned
that the trial court, in finding life without parole was warranted in this case, emphasized the
opinion of the psychologist who testified at the Miller hearing that defendant Hyatt’s prognosis
for change in the next five years was poor. This focus on a short, five-year period for redemption
cannot be reconciled with Miller, which holds that a life-without-parole sentence will be
proportionate for the juvenile who is irreparably corrupt and incapable of change—not one who
is incapable of change within the next five years. The capacity for change within five years
hardly seems of any relevance to the decision of whether an individual who committed a crime
while a minor is irreparably corrupt, and thus, will remain corrupt and wholly incapable of
rehabilitation for the remainder of his or her life expectancy, which could easily be another 60 to
80 years.

        Given all that occurred at the sentencing hearing in this case, we feel compelled to
remand for resentencing at which the trial court is to not only consider the Miller factors, but to
decide whether this individual is the truly rare juvenile mentioned in Miller who is incorrigible
and incapable of reform. Accordingly, we reverse defendant Hyatt’s sentence and remand to the
trial court for resentencing. On resentencing, the court is to implement the directives of Miller
and Montgomery and to be mindful that those cases caution against the imposition of a life-
without-parole sentence except in the rarest of circumstances. Hence, it should operate with the
understanding that, more likely than not, life without parole is a disproportionate sentence for
defendant Hyatt.




18
  We would be remiss if we did not note that the trial court lacked the benefit of Montgomery at
the time of sentencing.
19
  As noted above, we acknowledge that, as articulated as far back as Roper, this determination is
a difficult one to make. We also note that MCL 769.25 and Miller offer little in terms of
guidance as to how to make this difficult decision. Nevertheless, the current statutory system is
the one under which we are required to operate.


                                                -28-
                                      V. CONCLUSION

        We resolve the conflict created between the prior panel in this case and the majority in
Skinner by concluding that a judge, not a jury, is to determine whether to sentence a juvenile to
life without parole under MCL 769.25. As to the instant case, we reverse defendant Hyatt’s
sentence and remand for further proceedings consistent with this decision. We do not retain
jurisdiction.



                                                           /s/ Jane M. Beckering
                                                           /s/ Douglas B. Shapiro
                                                           /s/ Jane E. Markey
                                                           /s/ Cynthia Diane Stephens




                                              -29-
