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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

March 20, 2018

V No. 335862

Kent Circuit Court

DEMARIOL DONTAYE BOYKIN, LC No. 03-004460-FC

Defendant-Appellant.

Before: MARKEY, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

Defendant appeals as of right his sentence of 40 to 60 years’ imprisonment imposed by 

the trial court upon resentencing for his conviction of first-degree murder, MCL 750.316(1). We 

affirm.

I. FACTS

In 2003, when defendant was 17 years old, he shot and killed Shawn Broyles, who was 

18 years old. This Court, previously reviewing this case, summarized the facts as follows:

The victim, Shawn Broyles, and defendant’s brother Marvin were engaged in a 

fist-fight. Broyles’ two friends were present, but did not think the fight was 

serious enough to merit their involvement. Defendant, his father, and defendant’s 

brother Charles were present. Neither defendant’s father nor Charles thought the 

fight was serious enough to merit their intervention either. At no time did Broyles 

attack or threaten to attack defendant. In fact, Broyles had already begun running 

from the scene of the altercation when defendant started shooting at him.

Second, defendant had time in which to consider his actions. Broyles 

pleaded with defendant to “Come on, stop,” presumably after he saw the gun in 

defendant’s hand. Defendant, however, did not stop. Broyles turned and ran 

from defendant. Defendant raised his gun and fired three to four shots at Broyles.

Broyles fell after being shot twice. One witness testified that defendant lifted 

Broyles up by his jacket hood, put the gun to his cheek, and pulled the trigger, but 

the gun did not fire. The gun, found by Broyles’ cousin, was determined to be 

jammed. After attempting to shoot Broyles again, defendant and his two brothers 

kicked Broyles as he lay dying on the sidewalk. Defendant’s brother Marvin 
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testified that defendant said he shot Broyles because Broyles had jumped him a 

few years before. [People v Boykin, unpublished opinion per curiam of the Court 

of Appeals, issued July 14, 2005 (Docket No 253244).] 

Defendant was convicted after a jury trial of first-degree murder, MCL 750.316(1), 

possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b, and 

as a fourth-offense habitual offender, MCL 769.12. Defendant was sentenced to life 

imprisonment without possibility of parole for the murder conviction, and to two years for the 

felony firearm conviction. This Court affirmed defendant’s convictions.1 

Thereafter, defendant pursued a number of post-conviction measures to overturn his 

conviction and sentence. In 2016, a writ of habeas corpus was issued for resentencing pursuant 

to the United States Supreme Court decisions in Miller v Alabama, 567 US 460; 132 S Ct 2455; 

183 L Ed 2d 407 (2012), which held that mandatorily sentencing a juvenile to life without the 

possibility of parole was unconstitutional, and Montgomery v Louisiana, 577 US __; 136 S Ct 

718; 193 L Ed 2d 599 (2016), which applied Miller retroactively. People v Hyatt, 316 Mich App 

368, 383; 891 NW2d 549 (2016). Because defendant’s conviction of first-degree murder 

received a mandatory life sentence without possibility of parole, defendant was entitled to 

resentencing under Miller and Montgomery, as well as Michigan’s legislative response to Miller, 

MCL 769.25a.

At resentencing in this case, the prosecutor did not seek a life sentence for defendant, but 

instead suggested a sentence of 40 to 60 years for the first-degree murder conviction. Defense 

counsel asked the trial court to consider a sentence of 25 to 60 years. The trial court sentenced 

defendant to 40 to 60 years’ imprisonment, stating at the resentencing hearing, in part: 

Well, I sentenced as I have indicated, and one of the aspects of the requirement 

imposed on the Court is to determine a variety of factors articulated in this Miller 

v Alabama case. I’ll not articulate all of them. They’ll be incorporated by 

reference in the comments I’m making. Age and maturity, his impetuosity, his 

family history, home environment and the like, all of them, all of them have been 

considered by the Court. 

II. DISCUSSION

On appeal, defendant first contends that the trial court did not properly apply the factors 

discussed in Miller when resentencing defendant, and that defendant’s new sentence therefore 

does not comply with the constitutional mandate that juveniles be treated differently than adults

when sentenced. We disagree. 

We review a sentence imposed by the trial court for an abuse of discretion. Hyatt, 316 

Mich App at 423. “The limit on the judicial discretion to be exercised when imposing penalties 

 1 People v Boykin, unpublished opinion per curiam of the Court of Appeals, issued July 14, 2005 

(Docket No 253244). 
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is that the punishment should be proportionate to the offender and the offense. . . . 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., citing People v Milbourn, 435 Mich 630, 636, 651-652; 461 NW2d 1 (1990). 

In Miller, the United States Supreme Court held that mandatory, life-without-parole 

sentences for juvenile offenders were unconstitutional because the youthfulness of the offender 

was not considered, resulting in the risk of disproportionate punishment. Miller, 567 US at 465, 

479. In Miller, “[t]he Court emphasized that the unique characteristics of youth warranted 

treating juveniles differently from adults for purposes of sentencing.” Hyatt, 316 Mich App at 

379. The Miller Court outlined three gaps that exist 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]. [Miller, 567 US at 471 (quotation marks and citations 

omitted).]

In response to Miller, Michigan enacted 2014 PA 22, which, in relevant part, added MCL 

769.25. Hyatt, 316 Mich App at 384. Under this statute, if upon resentencing the prosecutor 

declines to move for the reinstatement of a defendant’s sentence of life without parole, and if the 

trial court decides not to sentence the defendant to life without parole, then the defendant must

be sentenced to “a term of imprisonment for which the maximum term shall be not less than 60 

years and the minimum term shall not be less than 25 years or more than 40 years.” See MCL 

769.25(4) and (9).

In this case, the prosecutor did not move for the reinstatement of defendant’s prior lifewithout-parole sentence. At the resentencing hearing, the trial court stated that it was aware of 

Miller and that it was considering all of the Miller factors, including, but not limited to, age, 

maturity, impetuosity, family history, and home environment. The trial court thereafter 

sentenced defendant to a term of years, choosing not to impose a sentence of life without parole. 

See MCL 769.25(4) and (9). 

Defendant argues that the trial court failed to properly consider the directive of Miller that 

juveniles should be considered differently during sentencing. The decision in Miller, however, 

applies only to juveniles sentenced to life without parole. Miller, 567 US at 465. Here, the trial 

court did not sentence defendant to life without parole, but instead sentenced defendant to a term 
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of years in compliance with MCL 769.25. The trial court, therefore, was not compelled to 

consider the Miller factors.2 

Moreover, because defendant’s sentence of 40 to 60 years’ imprisonment was within the 

statutorily mandated range requiring 25 to 40 years for the minimum term and 60 years for the 

maximum term, the sentence is presumptively proportionate. See People v Williams, 189 Mich 

App 400, 404; 473 NW2d 727 (1991) (holding that a legislatively mandated sentence is 

presumptively proportionate and valid). Considering the totality of the circumstances, 

defendant’s sentence was proportionate to the seriousness of the offense—first-degree murder—

and the offender, who was almost 18 years old at the time of the crime and who acted with 

extreme brutality by executing another teenager with virtually no provocation. We conclude that 

the trial court did not abuse its discretion in imposing a sentence of 40 to 60 years’ imprisonment 

for defendant’s conviction of first-degree murder.

Defendant next briefly contends that MCL 769.25(9) is unconstitutional because it 

imposes a mandatory minimum sentence upon a juvenile convicted of murder without requiring 

a trial court to consider the factors of Miller, which defendant argues therefore violates the 

Eighth Amendment. Again, we disagree. 

The federal constitution prohibits “cruel and unusual” punishment, US Const, Am VIII, 

(while the Michigan constitution prohibits “cruel or unusual” punishment, Const 1963, art 1, § 

16). See People v Nunez, 242 Mich App 610, 618 n 2; 619 NW2d 550 (2000). In Miller, the 

United States Supreme Court considered an Eighth Amendment challenge to mandatory lifewithout-parole sentences for juvenile offenders in homicide cases, and concluded that “given all 

we have said in Roper [v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005)], Graham

[v Florida, 560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010)], 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, 

567 US at 479. The Miller Court, focused upon this “harshest possible penalty,” held that a 

sentencing scheme that mandates life-without-parole sentences for juvenile offenders violates the 

Eighth Amendment’s prohibition against cruel and unusual punishment because it carries too 

great a risk of disproportionate sentencing. See People v Garay, 320 Mich App 29, 44; 903

NW2d 883 (2017). 

 2 Though not mandated by Miller, the trial court actually did consider the Miller factors when 

resentencing defendant. The trial court stated that it was considering all the Miller factors and 

specifically mentioned its consideration of defendant’s psychological evaluations, defendant’s 

childhood, and his misconducts while in prison involving intoxicating substances and weapons. 

Evaluating these factors, the trial court determined that defendant’s youth and immaturity were 

not an excuse for his conduct, and that “[t]here was nothing to suggest here anything other than 

this was a cold, calculated, premeditated killing of an innocent human being who represented no 

threat to [defendant].” 
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In response to Miller, our Legislature enacted MCL 769.25, pursuant to which defendant 

in this case was resentenced to a term of years, not to life without possibility of parole. 

Defendant points to no authority to support his contention that Miller requires consideration of 

its factors in cases where a juvenile is being sentenced to some term other than life without 

parole,3 nor does defendant provide support for his theory that any statute that permits sentencing 

a juvenile without consideration of the Miller factors violates the Eighth Amendment. “An 

appellant may not merely announce his position and leave it to this Court to discover and 

rationalize the basis for his claims, nor may he give only cursory treatment with little or no 

citation of supporting authority.” People v Bosca, 310 Mich App 1, 16; 871 NW2d 307 (2015) 

(citation omitted). 

Affirmed. 

/s/ Jane E. Markey

/s/ Michael F. Gadola 

 3 Moreover, we again note that the trial court in this case did, in fact, consider the Miller factors 

when sentencing defendant, apparently believing that it was obligated to do so.