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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION January 19, 2016 9:10 a.m.

v No. 323454 Genesee Circuit Court FLOYD GENE PERKINS, LC No. 13-032653-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 323876 Genesee Circuit Court AARON WILLIAMS, LC No. 13-033526-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

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

Defendant-Appellant.

Before: T ALBOT , C.J., and C AVANAGH and K. F. K ELLY , JJ.

K. F. K ELLY , J.

These three defendants were tried jointly before separate juri es. A jury convicted defendant Floyd Gene Perkins (Pe rkins) of first-degree felony murder, MCL 750.316(b), conspiracy to commit armed r obbery, MCL 750.157a, armed robbery , MCL 750.529, and felony--2- firearm, MCL 750.227b(1). Perkins was sentenced to life in pri son for the murder conviction, 285 months to 50 years’ imprisonment for both the conspiracy to commit armed robbery and armed robbery convictions, and two years’ imprisonment for the felony-firearm conviction. On appeal, Perkins argues: (1) there was insufficient evidence to support his murder conviction; (2) his confession violated the Fifth and Sixth Amendments; and, (3 ) the judgment of sentence must be amended because Perkins’ felony-firearm conviction was erron eously ordered to be served consecutively to his conviction for conspiracy to commit armed robbery. We agree that the matter must be remanded for the ministerial task of correcting Perkins’ judgment of sentence, but in all other respects we affirm P erkins’ convictions and senten ces.
A jury convicted defendant Aaron Williams (Williams) of conspi racy to commit armed robbery, armed robbery, felon in possession of a firearm, MCL 7 50.224f, and felony-firearm. The jury could not reach a verdict on the felony murder charge. Williams was sentenced as a fourth habitual offender to 25 to 50 years’ imprisonment for ea ch of the conspiracy to commit armed robbery and the armed robbery convictions, 30 months to 6 0 months’ imprisonment for the felon in possession conviction, and two years’ imprisonmentfor the felony-firearm conviction. In lieu of a retrial on the felony murder charge, Williams later pleaded no contest to second-degree murder, for which he later received a 35 to 50 ye ar prison term. On appeal, Williams argues there was insufficient evidence that he committ ed armed robbery and the trial court erred in assessing the same amount of restitution against Williams as it had against his more culpable codefendants. We affirm Williams’ convictions an d sentences.

A jury convicted Kenya Ali Hyat t (Hyatt) of first-degree felon y murder, conspiracy to commit armed robbery, armed robbery, and felony-firearm. Becau se Hyatt was 17 years old when the offense occurre d, the trial court held a Miller 1 hearing to determine Hyatt’s sentence. It ultimately sentenced Hyatt to life without the possibility of p arole for the murder conviction, 210 months to 40 years’ imprisonment for each of the conspiracy to commit armed robbery and armed robbery convictions, and two years’ imprisonment for the felony-firearm conviction. On appeal, Hyatt argues: 1) a police officer impermissibly encroac hed on the province of the jury when he identified Hyatt in a surveillance video; 2) the trial court erred in failing to instruct the jury on accident; and, 3) his sentence must be vacated because the determination of whether a juvenile should receive a life without parole sentence must be made by a jury. In light of this Court’s decision in People v Skinner , ___ Mich App ___; ___ NW2d ___ (Docket No. 317892, issued August 20, 2015), Hyatt must be resentenced so that a jury may determine whether he should receive life in prison without the possibility of parole . We otherwise affirm Hyatt’s convictions and sentences. However, were it not for Skinner , we would affirm the sentencing court’s decision to sentence Hy att to life imprisonment without the possibility of parole. We therefore declare a conflict with Skinner pursuant to MCR 7.215(J)(2).

I. BASIC FACTS

1 Miller v Alabama , ___ US ___; 132 S Ct 2455, 2457; 183 L Ed 2d 407 (2012).-3- On August 14, 2010, the victim, a security guard at River Vill age Apartments in Flint, was killed after being shot multiple times. Perkins, Williams and Hyatt each gave statements to police officer Terence Green, and each implicated himself in th e murder. The statements revealed that Perkins and his family were in danger because of a dispute Perkins had with an individual. Perkins wanted to obtain a firearm to help him pro tect his family. Williams and Hyatt were Perkins’ cousins, but were not related to one anothe r. The three individuals devised a plan in which Perkins could obtain a gun. Williams lived in th e apartment complex where the murder took place and knew that the security guards who worked there were armed. Williams borrowed a gun from an individual known as “Chief.” The idea w as that Perkins, Hyatt and Williams would use the borrowed gun to rob one of the security guards of his firearm. On the night of the shooting, Williams acted drunk and disorderly in t he apartment complex’s parking lot in order to lure the victim out of his security car. When the victim approached Williams, Perkins and Hyatt approached from behind. Perkins grabbed the victim and held him while Hyatt drew the gun he had received from Williams. Both Perkins and Hyatt indicated that the victim reached for Hyatt’s gun and the gun discharged. After t hat first shot, Perkins grabbed the victim’s side-arm and ran away. Perkins heard additional shots as he was fleeing. Hyatt maintained that the first shot was accidental and that he subse quently “blacked out” and could not remember what happened afterwards.

An autopsy revealed that the victim had been shot three times, although there were four gunshot wound paths. One bullet wound entered the back left si de of the victim’s scalp, exiting near the forehead, grazing the left cheek. This same bullet th en entered the top of the left shoulder, with the bullet ending up deep in the muscle on the l eft side of the back thorax area. Another bullet entered behind the left ear and exited the right cheek. This bullet went through the spine, severing the spinal cord. A third bullet, and fourt h path, entered the left chest region and was recovered from the lower back. This bullet went throug h the lung, causing significant injury to the lung and bleeding inside the left chest area. Wh ile all gunshot wounds had the potential to be fatal, the pathologist testified that two were immediately incapacitating – the one that entered behind the left ear and severed the spine and the one on the left side of the chest that caused significant internal blee ding. There was no way to tell which bullet came first.

As previously indicated, Perkins, Williams and Hyatt were trie d jointly before separate juries. They were convicted and sen tenced as outline above and now appeal as of right.

II. DOCKET NO. 323454 (PERKINS’ APPEAL)

A. SUFFICIENCY O F THE EVIDENCE

Perkins argues that there was insufficient evidence to support his felony murder conviction. Specifically, Perkins argues that the victim was n ot killed “while in the perpetration-4- or attempted perpetration of a robbery” because the robbery was complete when Perkins took the victim’s gun and fled from the scene. 2 We disagree.

“We review de novo a challenge on appeal to the sufficiency of the evidence.” People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010). “Taking the evid ence in the light most favorable to the prosecuti on, the question on appeal is wh ether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” People v Hardiman , 466 Mich 417, 421; 646 NW2d 158 (2002). “It is for the trier of fact, not the app ellate court, to determine what inferences may be fairly drawn from the evidence and to determi ne the weight to be accorded those inferences.” Id. at 428. “The requirements of the aiding and abetting statute a re a question of law that this Court reviews de novo.” People v Robinson , 475 Mich 1, 5; 715 NW2d 44 (2006) (footnote omitted).

In order to be convicted of first-degree felony murder, the pr osecution had to prove the following elements:

(1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily ha rm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commissio n of any of the felonies specifically enumera ted in [MCL 750.316(1)(b) . . .]. [ People v Smith
, 478 Mich 292, 318-19; 733 NW2d 351 (2007) (internal quotation m arks omitted).]

While Perkins did not fire the fatal shots, the aiding and abe tting statute, MCL 767.39, provides that a defendant may be convicted as a principal if he aided or abetted in the commission of a charged crime. The statute reads:

Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be pro secuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.

Therefore, in order to be convict ed under an aiding and abettin g theory, the prosecution must
prove:
(1) the crime charged was committed by the defendant or some ot her person; (2) the defendant performed acts or gave encouragement that assiste d the commission of the crime; and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the tim e that [the

2 Perkins does not challenge his convictions for armed robbery, conspiracy to commit armed robbery, or felony-firearm and con cedes his participation in th e armed robbery.-5- defendant] gave aid and encouragement. [ People v Robinson , 475 Mich 1, 6; 715 NW2d 44 (2006).]

More specifically to thi s particular case:

To prove felony murder on an aiding and abetting theory, the pr osecution must show that the defendant (1) performed acts or gave encouragemen t that assisted the commission of the killing of a human being, (2) with the in tent to kill, to do great bodily harm, or to create a high risk of death or great b odily harm with knowledge that death or great bod ily harm was the probable resu lt, (3) while committing, attempting to commit, or assisting in the commissio n of the predicate felony. [ People v Riley , 468 Mich 135, 140; 659 NW2d 611 (2003).]

“The phrase ‘aids or abets’ is u sed to describe any type of as sistance given to the perpetrator of a crime by words or deeds that are intended to e ncourage, support, or incite the commission of that crime.” People v Moore , 470 Mich 56, 63; 679 NW2d 41 (2004). “In determining whether a defendant assisted in the commission of t he crime, the amount of advice, aid, or encouragement is not material if it had the effect of i nducing the commission of the crime.” Id. at 71. Whether and to what exte nt a defendant acts or gives en couragement “must be determined on a case-by-case basis.” Id.

The facts in Robinson are similar to the case at bar. In Robinson , the defendant agreed with his codefendant that they w ould go to the victim’s house a nd “f*** him up.” The defendant drove to the victim’s home and provided the first blows to the victim. Once the victim was on the ground, the codefendant began to kick the victim. The defe ndant told his codefendant “that was enough” and began to walk back to the car when he heard a s ingle gunshot; the codefendant had shot the victim. The trial court found the defendant guilt y of second-degree murder. This Court reversed, holding that there was insufficient evidence to support the defendant’s conviction because there was no evidence establishing that the defendant was aware of his codefendant’s intent to kill the victim. Id. at 4-5. Our Supreme Court reversed, holding that the natural and probable consequen ce of aggravated assault was deat h. While the defendant may have only intended to assault t he victim, it was foreseeable th at a plan to assault someone could “escalate the assault to murder” and the fact that the defendan t “serendipitously left the scene of the crime moments before [the] murder does not under these circ umstances exonerate him from responsibility for the crime.” Id. at 11-12. The Court explained th at “sharing the same intent as the principal allows for accomp lice liability. However, sharin g the identical intent is not a prerequisite to the imposition of accomplice liability.” Id. at 14. The Court held:

[A] defendant must possess the cr iminal intent to aid, abet, pr ocure, or counsel the commission of an offense. A defendant is criminally liable for the offenses the defendant specifically intends t o aid or abet, or has knowledge of, as well as those crimes that are the natural and probable consequences of the of fense he intends to aid or abet. Therefore, the prosecutor must prove beyond a reas onable doubt that the defendant aided or abetted the commission of an offense and that the defendant intended to aid the cha rged offense, knew the princip al intended to commit the charged offense, or, alternatively, that the charged offense was a-6- natural and probable consequence of the commission of the inten ded offense. [ Id. at 15.]

The prosecution presented sufficient evidence to convict Perki ns of felony murder. Perkins, along with Williams and Hyatt, devised a plan to take a gun from a security guard. Perkins grabbed the victim and held him while Hyatt drew his ow n gun. Hyatt shot the victim while Perkins was holding him. While Perkins may have fled the scene after the first shot, he is not exonerated from Hyatt’s subse quent action where the victim’ s death was a natural and probable consequence of the armed robbery. A reasonable jury c ould conclude that Perkins disregarded the likelihood that the natural tendency of his act s was to cause death. Clearly Perkins (1) performed acts or gave encouragement that assisted the commission of the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with knowledge that death or great b odily harm was the probable result, (3) while committing, attempting to commit, or assistin g in the commission of the predicate felony.

Defendant argues that he had re ached temporary safety before t he fatal shots. However, the victim was shot multiple times with one of those shots comi ng when Perkins was still holding the victim. There is no clear indication of which shot actuall y killed the victim. Therefore, it is conceivable that the shot fired while Perkins held the victim w as the one that actually caused the victim’s death. At a minimum, the shot contributed to the vict im’s death. Perkins tries to separate his acts of assistance during the armed robbery from H yatt’s act of shooting the victim, relying heavily on the fact that he was attempting to leave the location. The jury could have inferred from the evidence, however, that Perkins assisted in t he murder by actively participating in the underlying offense, i.e., t he armed robbery, and that th e shooting was a natural and probable result of the armed robbery.

B. ADMISSIBILITY OF PERKINS’ STATEMENT

Perkins next argues that his c onfession should have been suppr essed because the investigating officer, Terence Green, knew that Perkins was in jail on an unrelated offense and was represented by counsel and ne vertheless questioned Perkins without his attorney and because the officer lied to him about incriminating physical ev idence. We disagree.

This Court reviews de novo a tria l court’s ultimate decision o n a motion to suppress evidence. Although this C ourt engages in a review de n ovo of the entire record, this Court will not disturb a trial court’s factual fin dings with respect to a Walker [ 3 ] hearing unless those findings a re clearly erroneous. [A] find ing is clearly erroneous if it leaves us with a definite and firm conv iction that the trial court has made a mistake. [ People v Akins , 259 Mich App 545, 563-64; 675 NW2d 863 (2003) (internal quotation marks, citations and footno tes omitted.]

3 People v Walker (On Rehearing) , 374 Mich 331, 132 NW2d 87 (1965).-7- Perkins argues that the trial court erred in admitting his sta tement to police where the statement violated his right t o counsel under both his Fifth an d Sixth Amendment rights. Our Court has explained the interp lay between these two amendments:

The right to counsel is guaranteed by both the Fifth and Sixth Amendments of the United States Constitution, as well as Const. 1963, art. 1, §§ 17 and 20. However, these constitutional rights are distinct an d not necessarily coextensive. The Sixth Amendment directly guarantees the right to counsel in all criminal prosecutions, while the Fifth Amendment right to couns el is a corollary to the amendment’s stated right a gainst self-incrimination and to due process. The right to counsel guaranteed by the Michigan Constitution is gen erally the same as that guaranteed by the Sixth Amendment; absent a compelling rea son to afford greater protection under the Michigan Constitution, the right t o counsel provisions will be construed to afford the same protections. [ People v Marsack , 231 Mich App 364, 372-73; 586 NW2d 234 (1998) (internal citations omitte d).]

The Sixth Amendment, as applied to the states through the Four teenth Amendment, guarantees a criminal defendant t he right to have an attorney a ssist in his defense. People v Russell , 471 Mich 182, 187; 684 NW2d 745 (2004), cert den 543 US 1095 (2005). “The Sixth Amendment guarantees a defendant the right to have counsel pres ent at all critical stages of the criminal proceedings.” Missouri v Frye , ___ US ___; 132 S Ct 1399, 1405; 182 L Ed 2d 379 (2012) (internal quotation marks omitted). “[O]nce this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated c ustodial interview is ineffective.” McNeil v Wisconsin , 501 US 171, 175; 111 S Ct 2204, 2207; 115 L Ed 2d 158 (1991). However, the Sixth Amendment right “is offense-specific and cannot be in voked once for all future prosecutions.” People v Smielewski , 214 Mich App 55, 60; 542 NW2d 293 (1995). Instead, it “attaches only at or after adversarial judicial proceedings hav e been initiated.” Id . This is because excluding “evidence pertaining to charges as to which t he Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the pu blic’s interest in the investigation of criminal activities.” McNeil , 501 US at 176. Our Court has explained:

[O]nce the Sixth Amendment right to counsel has been invoked, a ny subsequent waiver during a police-initiated custodial interview is ineffec tive with respect to the formal charges filed agains t the defendant. Incriminating s tatements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial o f those offenses. Indeed, a d efendant’s request for court-appointed counsel at an arr aignment does not invalidate a waiver of the defendant’s right to counsel under Miranda during a subsequent police-initiated interrogation concerning a differe nt and unrelated offense. Thu s, when a defendant is interrogated after being arraigned and the interro gation involves charges unrelated to the arraigned charges, the defendant’s Six th Amendment right invoked at arraignment—the initiation of the criminal pro secution—is inapplicable to the interrogation. [ Smielewski , 214 Mich App at 61.]

The record reveals that adversar ial judicial proceedings for t he instant case had not yet begun when Perkins confessed. At the Walker hearing, Green testified that he knew that Perkins-8- was in jail on an unrelated home invasion charge. Green never bothered to see whether Perkins had been arraigned on the home invasion charge or whether there was an attorney of record. Because the Sixth Amendment right to counsel is offense specifi c and because adversarial judicial proceedings had not been initiated for the offenses in this case, Perkins’ right to counsel under the Sixth Amendment had not yet attached and the trial co urt properly denied Perkins’ motion to suppress his c onfession on that basis.

Perkins nevertheless claims that his statement was involuntary . The Michigan Supreme Court has held:

In determining whether a statem ent is voluntary, the trial cou rt should consider, among other things, the following factors: the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the quest ioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whet her there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or dru gged, or in ill health when he gave the statement; whether the accused was depr ived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was t hreatened with abuse.

The absence or presence of any one of these factors is not nec essarily conclusive on the issue of volunt ariness. The ultimate test of admissibility is whether the totality of the ci rcumstances surrounding the makin g of the confession indicates that it was freely and voluntarily made. [ People v Cipriano
, 431 Mich 315, 334; 429 NW2d 781 (1988).]

Perkins claims that his statement was involuntary because Gree n lied to him about what evidence existed in the case. Green admitted that he told Per kins there was video, DNA, and fingerprint evidence, even after Green assured Perkins at the o utset of their conversation that he would “never lie to” Perkins. The fact that police lie to a su spect about the evidence against him does not automatically render an o therwise voluntary statement involuntary. People v Hicks , 185 Mich App 107, 113; 460 NW2d 569 (1990). Instead, misrepresenta tion by the police is just one factor to be considered; the focu s remains the totality of the circumstances.

Green testified that he questioned Perkins on February 20, 201 3 at approximately 4:55 p.m.. Perkins was over 21 year s old and had both a G.E.D. and a high school diploma. Perkins could read and write the English language. Perkins had previou s contact with the police and the criminal justice system and, as previously mentioned, was in ja il for home invasion. Perkins was not deprived of food, sleep, or m edical attention, and he was n ot injured, intoxi cated, or drugged. There is no evidence that Perkins was physically abused, or thr eatened with abuse. The interview was short, lasting only an hour. Perkins was advised of and waived his Miranda rights before speaking with Green and ne ver requested an attorney. Th erefore, even if Green lied to Perkins regarding the evidence against him, the trial court did not err in determining that defendant’s statement was voluntarily made under the totality o f the circumstances.-9- C. JUDGMENT OF SENTENCE

Finally, Perkins argues that the trial court erred in ordering that Perkins’ felony-firearm sentence run consecutively to Perkins’ conspiracy to commit arm ed robbery sentence. The prosecution concedes e rror on this point.

At the time of Perkins’ senten ce, the felony-firearm statute p rovided, in relevant part:

(1) A person who carries or has in his or her possession a fire arm when he or she commits or attempts to commit a felony, . . . is guilty of a f elony, and shall be imprisoned for 2 years. . . .

(2) A term of imprisonment prescribed by this section is in add ition to the sentence imposed for the conviction of the felony or the attemp t to commit the felony, and shall be served cons ecutively with and preceding an y term of imprisonment imposed for the conviction of the felony or attemp t to commit the felony. [MCL 750.227b.]

Our Supreme Court has held:

From the plain language of the felony-firearm statute, it is e vident that the Legislature intended that a felony-firearm sentence be consecut ive only to the sentence for a specific underl ying felony. Subsection 2 clearly states that the felony-firearm sentence “shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony. ” It is evident that the emphasized language refers back to the predicate offense discussed in subsection 1, i.e., the offense during which the defendant possessed a firearm. N o language in the statute permi ts consecutive sentencing with convictions other than the predicate offense. [ People v Clark
, 463 Mich 459, 463-64; 619 NW2d 538 (2000) (internal footnotes o mitted).]

Perkins’ judgment of sentence should be amended to reflect tha t his felony-firearm sentence does not run consecutively to his conspiracy to commit armed robbery sentence.

III. DOCKET NO. 323876 (WILLIAMS’ APPEAL)

A. RESTITUTION

Williams first argues that the trial court erroneously assesse d the full amount of restitution against him when he wa s merely an aider and abettor to crimes less than murder. He points out that he was not convict ed of felony murder and was o nly liable for the impact of his conduct on the victim, not the cri minal acts of others. This i ssue is moot and has been waived.

In lieu of a second trial, Williams pleaded no contest to seco nd-degree murder. Notably, the judgment of sentence from the murder conviction includes th e same order of restitution as the previous judgment of sentence. Williams tried unsuccessfully t o withdraw his guilty plea in the trial court. He sought delayed application for leave to appeal , which this Court denied. People v Williams , unpublished order of the Court of Appeals, entered August 4, 2015 (Docket No.-10- 328103), lv pending. Therefore, as of now, the judgment of sen tence from Williams’ murder conviction stands. The restitution order for the murder convic tion is the same as the restitution for this case. Under those circumstances, “this Court is unabl e to provide a remedy for the alleged error” and the issue is deemed moot. People v Tombs , 260 Mich App 201, 220; 679 NW2d 77 (2003).

Moreover, the issue has been w aived. “[I]n general, an appell ant may not benefit from an alleged error that the appella nt contributed t o by plan or negl igence.” People v Witherspoon , 257 Mich App 329, 333; 670 NW2d 434 (2003). At Williams’ August 11 , 2014 sentence, the following exchange took place:

THE COURT: . . .

Restitution, as previously indicated for the co-defendant in this matter, total $689,688.68; partially los[t] wages, partially funeral bi ll and partially workers compensation as set forth on page five of this [present ence investigation] report.

MR. COTTON [defense counsel]: Judge, I would just ask that th at restitution be join t and severally certain, your Honor.

THE COURT: It is. It’s a ll joint and several.

MR. COTTON: Thank you, your Honor.

“[A] party cannot request a certa in action of the trial court a nd then argue on appeal that the action was error.” People v McCray , 210 Mich App 9, 14; 533 NW2d 359 (1995). Defense counsel seems to have “undoubtedly inadvertently, created the v ery error that it wishes to correct on appeal.” People v Szalma , 487 Mich 708, 726; 790 NW2d 662 (2010). But “a party may not harbor error at trial and then us e that error as an appellate p arachute.” Id.

B. SUFFICIENCY OF THE EVIDENCE

Williams argues that there was insufficient evidence to suppor t his convictions for armed robbery and conspiracy to commit armed robbery. Williams write s: “There is no evidence that Williams knew that anyone intended to commit an armed robbery that night. . . .The prosecution did not prove that Williams had conspired to be part of anythin g more than an unarmed robbery done to steal a firearm.” We disagree.

“The essential elements of an armed robbery are (1) an assault , and (2) a felonious taking of property from the victim’s person or presence, while (3) the defendant is armed with a weapon described in the statute.” People v Henry (After Remand) , 305 Mich App 127, 142; 854 NW2d 114 (2014). “A conspiracy is a partnership in criminal purpose s. The gist of the offense of conspiracy lies in the unlawful agreement between two or more p ersons. Establishing a conspiracy requires evidence of specific intent to combine with others to accomplish an illegal objective.” People v Blume , 443 Mich 476, 505 NW2d 843 (1993) (internal quotation marks a nd citations omitted).-11- As previously stated, the aidi ng and abetting statute, MCL 767 .39, provides that a defendant may be convicted of a c rime if he aided or abetted inthe commission of the crime. Williams admitted that he, Perkins and Hyatt discussed the need to rob a security guard in order to obtain a weapon. Williams borrowed a gun for the group. In fact, Williams concedes that the evidence was sufficient to suppo rt his convictions for felon inpossession of a firearm and felony-firearm based on his admi ssion to Green that he obtained the gun from a man known as “Chief.” Not only did Williams provide the weapon, but he acte d in a drunk and disorderly way in order to lure the victim out of his car, making the victim a n easier target for P erkins and Hyatt. Hyatt shot the victim with the gun that Williams procured. It is disingenuous for Williams to now argue that he did not expect an armed robbery when, in fact , he provided a gun to accomplish the armed robbery. There was overwhelming evidence to support Williams’ convictions for armed robbery a nd conspiracy to commit armed ro bbery.

IV. DOCKET NO. 325741 (HYATT’S APPEAL)

A. IDENTIFICATION TESTIMONY

Hyatt argues that Green invade d the province of the jury by of fering his opinion that certain video footage and still frames from the stairwell of th e apartment building where the murder occurred were of Hyatt. We agree that the trial court a bused its discretion when it allowed Green to identify Hyatt in a surveillance video, but co nclude that the error was harmless.

“We review for an abuse of discretion the trial court’s eviden tiary rulings that have been properly preserved. An abuse of discretion occurs when the cou rt chooses an outcome that falls outside the range of reasonable and principled outcomes.” People v Fomby , 300 Mich App 46, 48; 831 NW2d 887 (2013) (internal quotation marks and citation omitted).

The following exchange took place while the prosecutor questio ned Green:

Q . Camera two. Okay. . . . can you tell us who is coming down these stairs when you can see them?

MR. SKINNER [defense counsel ]: I’m gonna object to that quest ion.

BY MS. HANSON [prosecutor]:

Q . Who is that?

A . That’s Kenya Hyatt.

Q . Okay.

MR. SKINNER: Judge, can I be heard?

THE COURT: I’m hearing you.

MR. SKINNER: All right. It’ s too late now for my objection.-12- THE COURT: Well, I’m gonna overrule the objection. But you c an make a separate record at a later time.

Green then testified that, as Hyatt neared the bottom of the st airs, “you can clearly see him make a motion. Left hand crosses the body. Right hand touches the hip,” which Green believed was an attempt to conceal a weapon.

The testimony at issue constituted lay opinion testimony. Fomby , 300 Mich App at 50. MRE 701 provides: “If the witness is not testifying as an expe rt, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a cle ar understanding of the witness’ testimony or the determination of a fact in issue.” However, G reen’s testimony invaded the province of the jury. In Fomby , this Court cited with support federal case law that “the issu e of whether the defendant in the courtroom was the person pictured in a surveillance photo [is] a determination properly left to the jury.” Fomby, 300 Mich App at 52. In such a situation, there is no reason to believe that the witness who offered the identi fying testimony was “more likely to identify correctly the person than is the jury.” Id. (internal quotation marks omitted).

Unlike the witness in Fomby who testified that the individua l in the video footage was the same individual in still images but did not specifically identi fy the defendant as the individual in the images, Green affirmatively identified Hyatt as the individ ual in the stairwell. Green could properly comment that, based on his experience, the individual appeared to be concealing a weapon, but Green should not have been allow ed to identify Hyat t as that individua l. “[W]here a jury is as capable as anyone else of reaching a conclusion on c ertain facts, it is error to permit a witness to give his own opinion or interpretation of the facts because it invades the province of the jury.” People v Drossart , 99 Mich App 66, 80; 297 NW2d 863 (1980). There was nothing about the images (i.e. poor quality of the images, defendant we aring a disguise) that necessitated Green’s opinion. This is evidenced by the trial court’s own st atement during defense counsel’s objection that “I would have no tro uble making an identificatio n myself.”

However, even if the trial court abused its discretion, revers al is not warranted where the error was not outcome determinative. “Under MCL 769.26, a pres erved, nonconstitutional error is not grounds for reversal unle ss, after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was ou tcome determinative. Similarly, MCR 2.613(A) provides that an error is not grounds for disturbi ng a judgment unless refusal to take this action appears to the court inconsistent with substan tial justice.” People v Williams
, 483 Mich 226, 243; 769 NW2d 605 ( 2009) (internal quotation mark s and citation omitted). “An error is outcome determinative if it undermined the reliability of the verdict.” People v Feezel
, 486 Mich 184, 192; 783 NW2d 67 (2010). When determining whethe r the verdict has been undermined, an appellate court must “focus on the nature of the error in light of the weight and strength of the untai nted evidence.” Id.

Here, evidence of Hyatt’s guilt was overwhelming. In fact, th e assailants’ identities were not reasonably in dispute. Hyatt confessed to helping plan the robbery. He armed himself with a gun that Williams gave him. Although the plan was simply to sc are the security guard and take his weapon, Hyatt shot the victim at least three times. Hyatt clearly admitted that he was the-13- shooter. His identity was not at issue and, therefore, Green’s testimony was ultimately of no
consequence.

B. JURY INSTRUCTIONS

Hyatt next argues that the trial court erred when it declined Hyatt’s request to instruct the jury on accident. We disagree.

“[J]ury instructions that involve questions of law are also re viewed de novo. But a trial court’s determination whether a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion.” People v Gillis , 474 Mich 105, 113; 712 NW2d 419 (2006) (internal quotation marks and citation omitted).

“Challenges to jury instructions are considered in their entir ety to determine whether the trial court committed error requiring reversal.” People v Eisen , 296 Mich App 326, 330; 820 NW2d 229 (2012). “Jury instructions must clearly present the c ase and the applicable law to the jury. The instructions must include all elements of the charge d offenses and any material issues, defenses, and theories if supported by the evidence .” People v McGhee , 268 Mich App 600, 606; 709 NW2d 595 (2005) (emphasis added, internal citation omitted) . Therefore, “when a jury instruction is requested on any theories or defenses and is sup ported by evidence, it must be given to the jury by the trial judge. People v Mills , 450 Mich 61, 80-81; 537 NW2d 909, modified on other grounds 450 Mich 1212 (1995). However, a tri al court is not required to give a requested instruction “where t he theory is not supported by e vidence.” Id. Even when a defendant has been charged with fi rst-degree murder and claims a firearm accidentally discharged, failure to instruct on accident is not subject to a utomatic reversal but is subject to review for harmless error. People v Hawthorne , 474 Mich 174, 181; 713 NW2d 724 (2006). In the event of an instructional error, a defendant must “demonstr ate that it is more probable than not that the failure to give the requested lesser included misd emeanor instruction undermined reliability in the verdict.” People v Cornell , 466 Mich 335, 364; 646 NW2d 127 (2002).

Defense counsel asked that the ju ry be instructed as to accide nt under CJI2d 7.1 or selfdefense under CJI2d 7.2, in light of the fact that there was re cord evidence that the gun simply discharged when the victim attempted to grab it from Hyatt. Th e trial court declined to give either instruction because “I do not think there’s any evidence or sufficient evidence . . . that would support the theory that the handgun he was holding discharged accidentally during a struggle with [the victim].”

There was no evidence to support Hyatt’s theory that the shoot ing was accidental. Hyatt did not testify at trial, so th e only evidence that the shootin g was accidental was Hyatt’s statement to Green that the vict im grabbed the gun with both ha nds and it “just went off,” as well as Perkins’ statement that the victim reached for the gun and i t discharged. Had the victim been shot only once, the record might have supported an accident ins truction. However, Hyatt fails to address the fact that the victim was shot at least three times. That would mean that, even if the first shot was accidental, Hyatt shot the victim at least two a dditional times. Under those circumstances, no rational view of the evidence would support a n accident instruction.

C. SENTENCING-14- Finally, Hyatt argues that he was entitled to have a jury dete rmine whether he should receive a sentence of life without the possibility of parole. In light of Skinner , we are compelled to remand for resentencing. H owever, we believe that Skinner was wrongly decided.

In Miller v Alabama , ___ US ___; 132 S Ct 2455, 2457; 183 L Ed 2d 407 (2012), the United States Supreme Court held that mandatory life imprisonment without the possibility of parole for those under the age of 18 when they committed a crim e violated the Eighth Amendment’s, US Const VIII, prohibition against cruel and unusu al punishment. Miller, 132 S Ct 2455. The Court concluding that juveniles were different fr om adults:

Mandatory life without parole f or a juvenile precludes consider ation of his chronological age and its hallmark features—among them, immatur ity, 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 extricat e himself—no matter how brutal or dysfunctional. It neglects the ci rcumstances of the homicide of fense, 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 be en charged and convicted of a lesser offense if not for incompetencies associa ted with youth—for example, his inability to deal with police officers or prosecut ors . . . or his incapacity to assist his own attorneys. . . .And finally, this mandatory punishment disregards the possibility of re habilitation even when the circ umstances most suggest it. [ Id . at 2468.]

However, the Court fell short of categorically barring life wit hout parole for juvenile offenders; instead, it held that a sentencin g court must “take into accoun t how children are different, and how those differences counsel against irrevocably sentencing th em to a lifetime in prison.” Id . at 2469.

Our Courts have since struggled with what, exactly, Miller requires. See People v Eliason , 300 Mich App 293; 833 NW2d 357 (2013); People v Carp , 298 Mich App 472; 828 NW2d 685 (2012). In Carp, this Court noted that “the only discretion afforded to the tria l court in light of our first-degree murder statutes and Miller is whether to impose a penalty of life imprisonment without the possibility of parole or life imprison ment with the possibility of parole” guided by “the following none xclusive list of factors”:

(a) the character and record of the individual offender [and] t he circumstances of the offense, (b) the chronological age of the minor, (c) the ba ckground and mental and emotional development of a youthful defendant, (d) the fami ly and home environment, (e) the circumstances of the homicide offense, inc luding the extent of his participation in the conduc t and the way familial and pe er pressure may have affected [the juvenile], (f) whether the juvenile might ha ve been charged [with] and convicted of a lesser offense if not for incompetenc ies associated with youth, and (g) the potentia l for rehabilitation. [ Carp, 298 Mich App at 532, citing Miller , 132 S Ct at 2467–2468 (quotation marks and citations omitted) .]-15- Our Legislature enacted MCL 769.25 effective on March 4, 2014. The statute provides, in relevant part, as follows re garding the sentencing of selectjuvenile offenders:

(2) The prosecuting attorney m ay file a motion under this sect ion to sentence a defendant described in subsection (1) to imprisonmen t for life without the possibility of parole if the individual is or was convicted of any of the following violations:

***

(b) A violation of section 16(5), 18(7), 316, 436(2)(e), or 54 3f of the Michigan penal code, 1 931 PA 328, MCL 750.16, 750.18, 750.316, 750.436, and 750.543f.

(3) If the prosecuting attorney intends to seek a sentence of imprisonment for life without the possibility of parole for a c ase described in subsection (1)(a), the prosecuting attorney shall file the moti on within 21 days after the defendant is convicted of that violation. If the pro secuting attorney intends to seek a sentence of imprisonment for life without the possibility of parole for a case described under subsection (1)(b), the prosec uting attorney shall file the motion within 90 days after the effective date of the amendatory act that added this section. The motion shall specify the grounds on wh ich the prosecuting attorney is requesti ng the court to impose a senten ce of imprisonment for life without the possibility of parole.

(4) If the prosecuting attorney does not file a motion under s ubsection (3) within the time periods pr ovided for in that subsection, th e court shall sentence the defendant to a term of years as provided in subsection (9).

***

(6) If the prosecuting attorn ey files a motion under subsectio n (2), the court shall conduct a hearing on the motion as part of the sent encing process. At the hearing

, the trial court shall consider the factors listed in [ Miller , 132 S Ct 2455], and may consider any other criteria relevant to its deci sion, including the individual’s record w hile incarcerated.

(7) At the hearing under subsect ion (6), the court shall speci fy 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 presente d at the sentencing hearing.

***

(9) If the court decides not to sentence the individual to imp risonment for life without parole eligibility, the court shall sentence t he individual to a term-16- of imprisonment for which the maximum term shall be not less th an 60 years and the minimum term shall be not less than 25 years or more than 4 0 years.

Therefore, pursuant to MCL 769.25, juveniles are no longer sent enced under the same fixed sentences as adults and, absent a motion by the prosecutor seek ing a sentence of life without parole, “the court shall sentence the individual to a term of i mprisonment for which the maximum term shall be not less than 60 years and the minimum te rm shall be not less than 25 years or more than 40 years.” MCL 769.25(4) and (9). If the pr osecutor files a motion seeking life imprisonment without the possibility of parole for the all owed enumerated offenses, the trial court must hold a hearing, at which it must consider the factor s listed in Miller and shall specify on the record any reasons supporti ng the sentence imposed. MCL 769.25(6) and (7).

When considering Eliason and Carp, our Supreme Court determined that a sentencing court was not afforded with only the discretion to impose a pen alty of life imprisonment without the possibility of parole or life imprisonment with the possibi lity of parole; a defendant whose case was on direct review at the time Miller was decided was entitled to resentencing pursuant to MCL 769.25(1)(b)(ii):

Under MCL 769.25(9), the default sentence for a juvenile convic ted of firstdegree murder is a sentence of a term of years within specific limits rather than life without parole. A juvenile d efendant will only face a life -without-parole sentence if the prosecutor files a motion seeking that sentence and the trial court concludes following an individual ized sentencing hearing in acc ordance with Miller that such a sentence is appropriate. [ People v Carp, 496 Mich 440, 528; 852 NW2d 801 (2014).]

In addition to the changes impac ting juvenile sentences, our S upreme Court has recently declared certain features of Michigan’s sentencing scheme uncon stitutional. In People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015), our Supreme Court conclude d that “the rule from Apprendi v New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ––––, 133 S Ct 2151, 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutiona lly deficient. That deficiency is the extent to which the guidelines require judicial fact-finding beyon d facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the ‘manda tory minimum’ sentence under Alleyne. ” Lockridge, slip op, p 1-2. In order to remedy the constitutional deficien cy, the Supreme Court severed “MCL 769.34(2) to the extent that it make s the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory.” Id. The Court struck “the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departu re.” Id. Going forward, the Supreme Court held that “a guidelines minimum sentence range ca lculated in violation of Apprendi and Alleyne is advisory only and that sente nces that depart from that thre shold are to be reviewed by appellate courts for reasonableness.” Id.

This Court recently applied Lockridge to juvenile sentencing in People v Skinner , ___ Mich App ___; ___ NW2d ___ (Docket No. 317892, issued August 20 , 2015), and held that a-17- jury must decide whether a juvenile is to be sentenced to life imprisonment without the possibility of parole because such a sentence increases the max imum penalty in violation of the Sixth Amendment. In finding that portions of MCL 769.25 violat e the Sixth Amendment, this Court explained:

MCL 769.25 contains provisions th at establish a default term-of -years prison sentence for a juvenile convicted of first-degree murder. Speci fically, the statute provides in pertinent part that “[t]he prosecuting attorney may file a motion under this section to sentence a[ ] [juvenile defendant] to imprisonm ent for life without the possibility of parole if the individual is or was convicted of [ ] [first-degree murder.]” MCL 769.25(2). Abse nt this motion, “the court shall sentence the defendant to a term of years ....” MCL 769.25(4) (emphasis added). The effect of this sentencing scheme clearly establishes a “default” term-of- years sentence for juvenile defendants convicted of first-degree murder. See Carp , 496 Mich. at 458 (explaining that “MCL 769.25 now establishes a default sentencing range for individuals who commit first-deg ree murder before turning 18 ye ars of age” (emphasis added); MCL 769.25(4) (providing that, absent the pro secution’s motion to impose a life without parole sentence, “ the court shall sentence the defendant to a term of years as provided in subsection (9)” (emphasis added)). [ Skinner , slip op, p 8 (footnotes omitted).]

Therefore, the Skinner Court concluded that: (1) MCL 769.25 makes an indeterminate ter m of years the default sentence for j uveniles convicted of first-deg ree murder; (2) a court increases the default range if it sentences a juvenile to life in prison with out parole; and, (3) the statute unconstitutionally requires the tr ial court to make factual fin dings in increasing th e term of years. We disagree with the majority opinion in Skinnerand would instead adopt Judge Sawyer’s wellreasoned dissent.

In Apprendi , 530 US at 477; 120 S Ct 2348; 147 L Ed 2d 435 (2000), the Uni ted States Supreme Court reemphasized that the Sixth Amendment entitlement of a criminal defendant to a jury trial and the Due Process Clause in the Fourteenth Amendme nt “indisputably entitle a criminal defendant to a jury determination that [she] is guilty of every element of the crime with which [s]he is charged beyond a reasonable doubt.” (Internal quotation and citation omitted). The Supreme Court summarized that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statuto ry maximum” or prescribed sentence range, “must be submitted to a jury, and proved beyond a reasonable doubt.” Id . at 490. However, the Supreme Court additionally observed that “judges . . . have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case,” including by “taking into consi deration various factors relatin g both to offense and offender . . ..” Id . at 481 (emphasis in original). MCL 769.25 does not violate Apprendi because the jury in this case decided each and every element of the crimes for which Hyatt was convicted. His sentence was not an enhancement, but was within the prescribed statutory maximum once the prosecuto r filed a proper notice.-18- In Ring v Arizona , 536 US 584, 592; 122 S Ct 2428; 153 L Ed 2d 556 (2002) (Opini on by G INSBERG , J. 4 ), an Arizona jury convicted the defendant of first-degree felo ny murder, for which the defendant faced a penalty of e ither life imprisonment or de ath. The Court explained:

Under Arizona law, Ring could no t be sentenced to death, the s tatutory maximum penalty for first-degree murder, unless further finding s were made. . . . [A] cross-referenced section . . . directs the judge who presid ed at trial to “conduct a separate sentencing h earing to determine the existen ce or nonexistence of [certain enumerated] circumstances . . . for the purpose of determining the sentence to be imposed.” The statute further instructs: “The hearing shall be conducted before the court alone. The court alone shall make a ll factual determinations required by this section or the constitution of the United States or this state.”

At the conclusion of the sente ncing hearing, the judge is to d etermine the presence or absence of the enumerated “aggravating circumstance s” [including having another conviction in the United States that carried a p enalty of death or life imprisonment in Arizona, or a prior conviction “of a serio us offense, whether preparatory or completed”; the d efendant’s conduc t giving rise to the murder conviction “knowingly created a g rave risk of death to another person or persons in addition to the person murdered during the . . . offense”; the defendant “procured the commission of the offense by payment, or promise of payment, or anything of pecuniary value; the defendant “committed the offen se as consideration for the receipt, or in the expectation of pecunia ry value”; the defendant “committed the offense in an especially heinous, crue l or depraved manner”; the defendant “committed the offense while in the cust ody of or on an authorized or unauthorized release from the state department of corrections, a law enforcement agency or a . . . jail”; the defendant had other ho micide convictions that “were committed during the commission of the offense”; the defendant stood trial as an adult “and the murdered person was under fifteen ye ars of age or was seventy years of age or older”; and the murder victim “was an o n duty peace officer who was killed in the course of performing his official duties and the defendant knew, or should have known, that the murdered person was a peace officer”] and any “mitigating circumstances” [a nonexclusive li st including “any factors proffered by the defendant or the state . . . relevant in determining whether to impose a sentence less than death”]. The State’s law authorizes the judge to sentence the defendant to death only if there is at least one a ggravating circumstance and “there are no mitigating circumstances suffici ently substantial to call for leniency.” [ Id . at 592-593 (citations omitted).]

4 See id . at 610 (concurring opinion by S CALIA , J.), id . at 613 (concurring opinion by K ENNEDY , J.).-19- The Supreme Court overruled a pr ior decision “to the extent tha t it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” Id . at 609 (emphasis added). The S upreme Court concluded that “[ b]ecause Arizona’s enumerated aggravating factors operate as the functional equivalent of an element of a greater offender, the Sixth Amendment requires that they be found by a jury.” Id . (internal quotation and citation omitted; emphasis added). Here, the sentencing co urt did not find any additional aggravating circumstance s beyond what the jury found.

In Cunningham v California , 549 US 270, 274; 127 S Ct 856; 166 L Ed 2d 856 (2007), the United States Supreme Court held unconstitutional under the Sixth and Fourteenth Amendments a determinate sentencing law that “assign[ed] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an eleva ted ‘upper term’ sentence,” because the facts that the trial court found “are neither inherent in t he jury’s verdict nor embraced by the defendant’s plea.” The S upreme Court summarized:

As this Court’s decisions instr uct, the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other tha n a prior conviction, not found by a jury or admitted by the defendant. The relevant statutory maximum, this Court has clarified, is not the maximum sentence a judge after finding additional facts, but the maximum he may impose w ithout any additional findings. In petitione r’s case, the jury’s verdict alone limited the permissible sentence to 12 years. Additional factfinding by th e trial judge, however, yielded an upper term of 16 years. . . . We . . . reve rse [the petitioner’s sentence] because the four-year elevation based on judicial fac tfinding denied petitioner his right to a jury trial. [ Id . at 274-275 (internal quotation, citation and emphasis omitted).]

The United States Supreme Court restated the relevant analysis from some of its recent decisions in this area:

We have since reaffirmed the rule of Apprendi , applying it to facts subjecting a defendant to the death penalty, Ring , 536 US at 602, 609, facts permitting a sentence in excess of the “standard range” under W ashington’s Sentencing Reform Act, [ Blakely v Washington , 542 US 296, 304–305; 124 S Ct 2531; 159 L Ed 2d 403 (2004)], and facts triggering a sentence range elevation under the then-mandatory Federal Sentencing Guidelines, [ United States v Booker , 543 US 220, 243–244; 125 S Ct 738; 160 L Ed 2d 621 (2005)]. Blakely and Booker bear most closely on the ques tion presented in this case.

Ralph Howard Blakely was convict ed of second-degree kidnapping with a firearm, a class B felony under Washington law. Blakely , 542 US at 298–299. While the overall statutory maximum for a class B felony was te n years, the State’s Sentencing Reform Act (Reform Act) added an important q ualification: If no facts beyond those reflected in the jury’s verdict were foun d by the trial judge, a defendant could not receive a sentence above a “standard rang e” of 49 to 53 months. Id . at 299–300. The Reform Act permitted but did not require a j udge to-20- exceed that standard range if she found “‘substantial and compe lling reasons justifying an exceptional sentence.’” Id . The Reform Act se t out a nonexhaustive list of aggravating facts on whic h such a sentence elevation co uld be based. It also clarified that a fact taken into account in fixing the sta ndard range— i.e. , any fact found by the jury—could under no circumstances count in th e determination whether to impose an exceptional sentence. 542 US at 299–300. Blakely was sentenced to 90 months’ imprisonment, more than three years abo ve the standard range, based on the trial judge’s finding that he had acted wit h deliberate cruelty. Id . at 300.

Applying the rule of Apprendi , this Court held Blakely’s sentence unconstitutional. The State in Blakely had endeavored to distinguish Apprendi on the ground that “(u)nder the Washington guidelines, an exceptio nal sentence is within the court’s discretion as aresult of a guilty verdict.” Brief for Respondent in Blakely
, p 15. We rejected that argument. The judge could not have sen tenced Blakely above the standard range without finding the additional fact of deliberate cruelty. Consequently, that fact was subject to the Sixth Amen dment’s jury-trial guarantee. 542 US at 304–314. It did not matter, we explained , that Blakely’s sentence, though outside the stand ard range, was within the 10– year maximum for class B felonies:

“Our precedents make clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury ver dict or admitted by the defendant . . . . In other words, the relevant ‘statutory maximum’ is not the maximum sent ence a judge may impose after finding additiona l facts, but the maximum he m ay impose without any additional findings. When a judge inflicts punishment tha t the jury’s verdict alone does not allow, t he jury has not found all the fa cts ‘which the law makes essential to the punishment,’ . . . and the judge exceeds his proper authority.” Id . at 303-304, quoting 1 Bishop, Criminal Procedure § 87, p 55 ( 2d ed, 1872) (emphasis in original).

Because the judge in Blakely’s case could not have imposed a s entence outside the standard range wit hout finding an additional fact, the top of that range—53 months, and not 10 years—was the relevant statutory ma ximum. 542 US at 304.

The State had additionally argued in Blakely that Apprendi ’s rule was satisfied because Washington’s Reform Act did not specify an exclusive catalog of potential facts on which a judge mi ght base a departure from the standard
range . This Court rejected that argument as well. “ Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact . . . , one of several specified facts . . . or any aggr avating fact (as here),” we observed, “it remains the case that the jury’s verdi ct alone does not au thorize the sentence .” 542 US at 305 (emphasis in origina l). Further, we held it irre levant that the Reform Act ultimately left the decision whether or not to depar t to the judge’s discretion: “ Whether the judicially determin ed facts require a sentence-21- enhancement or merely allow it,” we not ed, “the verdict alone does not authorize the sentence .” Id . n 8. [ Cunningham , 549 US at 282-284 (original emphasis removed, current emphasis added).]

Our statute does not run afoul of Cunningham because Hyatt did not receive an enhanced sentence. The sentencing court did not determine facts not alr eady determined by the jury’s verdict.

In Alleyne, 133 S Ct at 2155 (Opinion by T HOMAS , J. 5 ), the United States Supreme Court held that a sentencing court viol ated the Sixth Amendment and t he principles outlined in Apprendi , 530 US 466, by finding any fact that increased a mandatory minimum sentence . The Supreme Court explained:

Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonabl e doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the m andatory minimum is an “eleme nt” that must be submitted to the jury. . . . [133 S Ct at 2155.]

The Supreme Court in Alleyne elaborated: (1) “ Apprendi concluded that any facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime,” and “the Sixth Amendment provides defendants with the r ight to have a jury find those facts beyond a reasonable doubt,” id . at 2160; (2) “[i]t is indisput able that a fact triggering a mandatory minimum alters the prescribed range of sentences to w hich a criminal defendant is exposed,” id .; and (3) because “facts increasing the legally prescribed flo or [undisputedly] aggravate the punishment,” “the core crime and the fact triggering the m andatory minimum sentence together constitute a new, aggravated crime, each elem ent of which must be submitted to the jury.” Id . at 2161. Our statute does not run afoul of Alleyne because juveniles are not exposed to an increased penalty.

While our Supreme Court in Carp mentioned the term “default,” the language of § 25(4) only divests the sentencing court of the discretion to impose asentence other than the term of years “[i]f the prosecuting atto rney does not file a motion und er subsection (3) within the time periods provided for” in § 25(3). In a circumstance like this case, in which the prosecutor undisputedly timely filed a motion seeking the imposition of li fe in prison without parole under § 25(3), the remainder of MCL 769.25 neither expressly provides nor reasonably suggests that the sentencing court should apply any default sentence.

Moreover, unlike the sentencing statutes the United States Sup reme Court ruled unconstitutional in Apprendi
, Ring
, Blakely
, Cunningham , and Alleyne , nothing in MCL 769.25 premised the sentencing court’s authority to impose a term of l ife imprisonment without parole

5 In separate opinions, a majority of the justices concurred in Parts I, III-B, III-C, and IV of Justice Thomas’s lead opinion. See concurring opinion by S OTOMAYOR , J., 133 S Ct at 2164- 2166, and partial concurrence by B REYER , J., 133 S Ct at 2166-2167.-22- on any specific finding that Hyatt’s jury failed to consider inconvicting Hyatt of first-degree felony murder. Because the prosecutor undisputedly and properl y filed a motion seeking a lifewithout-parole sentence for Hya tt, the term of years mandate in§§ 25(4) and (9) did not apply.

Finally, the plain language of the statute did not require the trial court to make any findings concerning aggravating or mitigating factors before th e court could sentence Hyatt to life without parole. Consequentl y, the life without parole sen tence in this case came within the statutory maximum, specifically “the maximum sentence a judge m ay impose solely on the basis of the facts reflected in the jury verdict or admitted by the d efendant.” Cunningham , 549 US at 283-284, quoting Blakely , 542 US at 303-304.

At Hyatt’s Miller hearing, Officer Terrence Green testified that, unlike the othe r defendants, Hyatt showed “no remorse, no concern” for what happ ened. Green acknowledged that the robbery was Perkins’ idea and that the other defendant s were older than Hyatt. Hyatt’s school records revealed assaultive behavior and a threat to “pu t a cap” in a teacher, resulting in his suspension. A counselor had wor ried that Hyatt appeared to have no remorse or conscience.

Psychologist Karen Noelle testified that Hyatt had a below ave rage IQ. She testified that Hyatt was a “seriously disturbed young man” with “serious malad justment” who was “impressionable, easily led, frustrated,” depressed and “caught in a morass of [] conflict.” Hyatt reported that his mother, who wa s a lesbian, preferred “her wom en and alcohol” over her children. In contrast, Hyatt’s father was a “very solid role m odel” for Hyatt. But Hyatt’s father had been shot by intruders and was paralyzed from the chest dow n. Hyatt believed his father blamed him for the incident and Hyatt also blamed himself. Aft er his father went to a VA hospital in Texas, Hyatt lived with his mother and other family members, though he considered himself homeless.

Noelle believed Hyatt had the intellectual capacity to be reha bilitated. She was “not sure” whether Hyatt was capable of remorse before the incident occurred because he clearly failed to appreciate the conseque nces of his prior actions. Hy att was immature and irresponsible. Noelle testified: “I don’t know that he has no sense of remors e and no conscience at all. . . . I do feel that he is not a sensitive, compassionate young man. I do feel that he’s pretty disconnected from societal morals and mores. I think that’s co ncerning, yes I do.” Noelle testified that she could not predict whether Hyatt was going to change. It would “require extreme effort and dedication on his part.” But she could not say that he was “irredeemable.” “[I]f I were to predict in fiv e years, it would not be possible .”

The sentencing court took the Miller factors into consideration at sentencing and concluded “I don’t think any factor that I’ve considered has an ything to do with his age.” Hyatt’s criminal acts were not t he result of “impetuosity or re cklessness.” After extensively reviewing the evidence before it, the sentencing court conclude d that “[i]n considering all of that and the nature of the crime itself and the defendant’s level of participation as the actual shooter in this case, the principle of proportionality requires this Co urt to sentence him to life in the State prison without parole.” Were it not for Skinner , we would affirm the sentencing court’s decision-23- to sentence Hyatt to life impris onment without the possibility of parole. 6 Instead we are compelled to remand for sentencing consistent with Skinner

.

V. CONCLUSION

In Docket No. 323454, we affirm Perkins’ convictions and sente nces, but remand for the ministerial task of correcting Perkins’ judgment of sentence to reflect that his felony-firearm sentence does not run consecutively to his conspiracy to commit armed robbery sentence.

In Docket No. 323876, we affirm Williams’ convictions and sent ences.
In Docket No. 325741, we affirm Hyatt’s convictions, but reman d for resentencing so that a jury may determine whether Hyatt should receive a senten ce of life in prison without the possibility of parole.

We do not retain jurisdiction.

/s/ Kirsten Frank Kelly /s/ Michael J. Talbot /s/ Mark J. Cavanagh

6 We emphasize that while MCR 7.215( J)(2) requires us to declare a conflict, the defendant in Skinner has filed an application for leave to appeal with our Supreme C ourt in Docket No. 152448.