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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED September 22, 2016

v No. 325834
Macomb Circuit Court ROBERT TAYLOR, LC No. 2009-005243-FC

Defendant-Appellant.

Before: B ORRELLO , P.J., and M ARKEY and R IORDAN , JJ.

P ER C URIAM

.

Defendant was convicted at a jury trial of first-degree felony murder, MCL 750.316(1)(b), carjacking, MCL 750.529a, conspiracy to commit c arjacking, MCL 750.529a; MCL 750.157a, kidnapping, MCL 750.349, conspiracy to commit kid napping, MCL 750.349; MCL 750.157a, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was origina lly sentenced to mandatory life imprisonmen t without the possibility of parole for the first-degree felony murder convic tion, 25 to 50 years’ imprisonment each for the carjacking, conspiracy to commit carjacking, kidna pping, and conspiracy to commit kidnapping convictions, and two years’ imprisonment for the fel ony-firearm conviction. On defendant’s appeal by right, this Court affirmed defendant’s co nvictions but vacated his mandatory sentence of life impr isonment without the possibilityof parole for the first-degree felony murder conviction and remanded for resentencing on that offense in accordance with

Miller v Alabama , 567 US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012). People v Taylor

, unpublished opinion per curiam of the Court of Appeals, issued March 21, 2013 (Docket No. 303208), pp 1, 7-8. The trial court on remand resentenced defe ndant to life imprisonment without the possibility of parole for the first-degree felony murder conviction. Defendant now appeals by right the sentence imposed on remand. We affirm.

Defendant argues that the trial court erred in imposing a life without parole sentence on remand. We disagree. “[T]he appropriate standard of review in cases where a judge imposes a sentence of life without parole on a juvenile defendant is a co mmon three-fold standard . . . .” People v Hyatt , ___ Mich App ___, ___; ___ NW2d ___ (2016) (Docket No. 325741 ); slip op at 25. The trial court’s findings of fact are reviewed for clear error, questions of law are reviewed de novo, and the court’s ultimate determination as to an approp riate sentence is reviewed for an
abuse of discretion. Id

.-2- In Miller , 132 S Ct at 2460, the United States Supreme Court held that a sentence of “mandatory life without parole f or those under the age of 18 atthe time of their crimes violates the Eighth Amendment’s prohibi tion on ‘cruel and unusual punish ments.’ ”

Mandatory life without parole f or a juvenile precludes consider ation of his chronological age and its hallmar k 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 extrica te himself – no matter how bruta l or dysfunctional. It neglects the circumstances of the homicide o ffense, including the extent of his participation in the conduct and the way fami lial and peer pressures may have affected him. Indeed, it ignores that he mi ght have been charged and convicted of a lesser offense if not for incompeten cies associated with youth – for example, his ina bility to deal with police off icers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. . . . And finally, this mandatory punishment disregards the possibili ty of rehabilitation even when the circumstances most suggest it. [ Id . at 2468.]

“By making youth (and all that accompanies it) irrelevant to im position of that harshest prison sentence, such a scheme poses too great a risk of disproportion ate punishment.” Id . at 2469. The Supreme Court declined to consider the defendants’ argument s for a categorical prohibition of life without parole sentences for juveniles but stated that “appropriate occasions for sentencing juveniles to this hars hest possible penalty will be uncommon.” Id . The Supreme Court noted that it was difficult to distinguish “at this earlyage between the juvenile offender
whose crimes reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id . (quotation marks and citations omitted). “Although
we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id

.

Following the issuance of Miller , our Legislature enacted MCL 769.25, which became effective on March 4, 2014. S ee 2014 PA 22. The statute appli es to a defendant who was less than 18 years old at the time he or she committed the offense. MCL 769.25(1). The prosecutor may file a motion to sentence a defendant convicted of first-de gree murder to life without parole. MCL 769.25(2) and (3). If the prosecutor files such a motion i n conformance with the statutory requirements, the trial court mu st conduct a hearing at which the court considers the factors listed
in Miller and any other relevant criteri a, including the defendant’s pri son record. MCL 769.25(6). At the hearing, the trial court must specify the ag gravating and mitigating circumstances and the reasons for the sentence imposed; the court may consider evidence presented at trial and evidence presented at the sentencing hea ring. MCL 769.25(7). If the trial court declines to impose a life without parole sentence, the co urt must impose a sentence in which the maximum term is at least 60 years and the minimum ter m is between 25 and 40 years. MCL 769.25(9).

Although the trial court’s ultimate determination of the appro priate sentence is reviewed for an abuse of discretion, “the imposition of a juvenile life- without-parole sentence requires a heightened degree of scrutiny re garding whether a life-without- parole sentence is proportionate-3- to a particular juvenile offender, and even under this deferent ial standard, an appellate court should view such a sentence as inherently suspect.” Hyatt , ___ Mich App at ___; slip op at 26. “[A]ppellate review of a juvenile life-without-parole sentence cannot be a mere rubber-stamping of the penalty handed out by the sentencing court.” Id . Although such a sentence is not presumed to be unconstitutional, a searching inquiry into the r ecord must be undertaken with “the understanding that, more likely than not, the sentence imp osed is disproportionate.” Id . A sentencing court abuses its discretion if it “fails to consider a relevant factor that should have received significant weight, gi ves significant weight to an imp roper or irrelevant factor, or considers only appropriate factors but nevertheless commits a c lear error of judgment by arriving at a sentence that lies outside the limited range of choice dic tated by the facts of the case.” Id . at 27, quoting United States v Haack , 403 F3d 997, 1004 (CA 8, 2005).

In Hyatt , ___ Mich App at ___; slip op at 27-28, this Court concluded t hat the trial court
had failed to adhere to the directives in Miller and its progeny “about the rarity with which a lifewithout-parole sentence should be imposed.” Although the trial court in Hyatt focused on the

Miller factors, “the court gave no credence to Miller ’s repeated warnings that a life-withoutparole sentence should only be imposed on the rare or uncommon juvenile offender.” Hyatt

, ___ Mich App at ___; slip op at 28. M oreover, the trial court in Hyatt had emphasized the opinion of a psychologist that the defendant’s prognosis for change in the next five years was poor; the focus on a five-year period was inconsistent with the holding i n Miller “that a life-without-parole sentence will be proportionate for the juvenile who is irrepara bly corrupt and incapable of change – not one who is incapable of change within the next fiv e years.” Id . This Court
therefore remanded the case for resentencing and directed the trial court “to not only consider the

Miller factors, but to decide whether t his individual is the truly ra re juvenile mentioned in Miller who is incorrigible and incapable of reform.” Id

.

In the present case, the trial court did not err in analyzing each of the Miller factors and finding that defendant is the rare juvenile offender who is irr eparably corrupt. The trial court expressed full appreciation of t he rarity of the circumstances in which a juvenile offender will be deemed incapable of reformation. The court quoted and discusse d relevant portions of the holding and analysis in Miller , including by noting the admonition in Miller that appropriate occasions to sentence juveniles to life without parole will be uncommon. And after analyzing
the Miller factors, the trial court concluded “that defendant’s case . . . presents precisely what the Supreme Court characterized as the rare juvenile offender whose crime reflects irreparable corruption.” Accordingly, the tr ial court accorded appropriate recognition and made pertinent findings regarding the rarity of circumstances warranting a lif e without parole sentence for a juvenile offender.

Moreover, the trial court’s conc lusion that defendant is the r are juvenile offender for whom a life without parole sent ence is warranted was supported by the court’s accurate analysis
of the Miller factors. We will now discuss each of the Miller factors.

The first factor concerns defendant’s age and its hallmark fea tures. Miller , 132 S Ct at 2468. Defendant was 16 years and 10 months old when he committ ed the offenses (in marked-4- contrast to the 14-year-old defendants in Miller , 132 S Ct at 2460 1 ). The record refutes any
claim that the hallmark features of adolescence identified in Miller , 132 S Ct at 2468, including immaturity, impetuosity, and a failure to appreciate risks and consequences, played any role in defendant’s crimes. This was not, as in Miller , 132 S Ct at 2465, a mere botched robbery that turned into a killing. Defendant and his codefendant, Ihab Mas almani, brazenly and forcibly kidnapped and carjacked Matt Landry in broad daylight outside a restaurant, with defendant acting as a lookout while armed with a weapon. Defendant and M asalmani held Landry captive for hours, took him to a drug house in a drug-infested area of Detroit where defendant sat on a couch with Landry while Masalman i used drugs, and then took Lan dry to a nearby abandoned house at which Masalmani killed Landry in a brutal execution style by shooting him in the back of the head. Defendant’s criminal actions over an extended per iod of time are not reflective of a merely immature or impetuous adolescent who fails to appreciate risks and consequences. Dr. Daniel P. Keating, defendant’s expert in cognitive and brain de velopment in adolescents, testified about a developmental m aturity mismatch in which an a dolescent’s limbic system matures more quickly than the pr efrontal cortex. This testimon y has minimal bearing on these facts, and Dr. Keating did not meet or interview defendant but was only addressing generic brain science. The trial court correctly concluded that the factor o f defendant’s chronological age and
its hallmark features does not wei gh in favor of mitigation.

The next factor concerns defe ndant’s family and home environme nt. Miller , 132 S Ct at 2468. The trial court correctly noted that there was uncontrov erted testimony that defendant had a difficult family and home enviro nment. Defendant’s mother wa s 13 years old when she had her first child. Defendant was born later, in 1992, and grew u p in a very unstable and unsafe environment. His family had an active child protective service s record that dated back to 1998. Defendant’s father was not prese nt, and defendant was exposed t o neglect, violence, and substance abuse. Defendant’s mother did not provide adequate f ood and shelter at times. In light of these far from optimal circumstances, the trial court properly weighed this factor in favor of defendant and against a life without parole sentence.

The next factor is “the circumstances of the homicide offense, including the extent of [defendant’s] participation in the conduct and the way familial and peer pressures may have
affected him.” Miller , 132 S Ct at 2468. The fact that defendant did not personally pull the

1 The Supreme Court in Miller indicated that it is appropriat e to take into account the diff erences between juveniles of different a ges. In particular, when expla ining the flaws of a scheme of mandatory life imprisonment without parole for juveniles, the Miller Court said: “Under these schemes, every juvenile will receive the same sentence as everyother – the 17-year-old and the 14-year-old, the shoot er and the accomplice , the child from a s table household and the child from
a chaotic and abusive one.” Miller , 132 S Ct at 2467-2468. The Miller majority criticized the
dissents in Miller for repeatedly referring to 17-year-olds who have committed he inous offenses and comparing those defendants to the 14-year-old defendants in Miller . The Miller majority explained: “Our holding requires factfinders to attend to exact ly such circumstances – to take into account the differences among defendants and crimes. By c ontrast, the sentencing schemes that the dissents find permissibl e altogether preclude consider ing these factors.” Id . at 2469 n 8.-5- trigger of the gun does not preclude the imposition of a life w ithout parole sentence. There is no categorical bar on the imposition of a life without parole sent ence on a juvenile convicted of felony murder on an aiding and abetting theory. See Id ., at 2469, 2471, and People v Carp , 496 Mich 440, 528; 852 NW2d 801 (2014) , vacated on other grounds by Carp v Michigan , ___ US ___; 136 S Ct 1355; 194 L Ed 2d 339 (2016), and by Davis v Michigan , ___ US ___; 136 S Ct 1356; 194 L Ed 2d 339 (2016).

Defendant actively participated in the crimes. Defendant admi tted to fellow jail inmate Michael Sadur that defendant and Masalmani were trying to “hit a lick,” which means to rob someone, and that they noticed the speaker system in Landry’s v ehicle outside a Quiznos restaurant in Eastpointe. Eyewitness testimony indicated that defendant possessed a weapon and acted as a lookout when Masalmani was trying to force Landry in to his vehicle. Defendant told Sadur that, because Masalmani and Landry were struggling, defen dant went over and helped to put Landry in the vehicle. Defendant played a critical role in holding Landry captive for several hours before he was murdered, inc luding by sitti ng on a couch w ith Landry at a drug house while Masalmani was using drugs; witness Frederick Singleton, who was at the drug house, never saw defendant leave Landry’s side at the drug house. Taylor , unpub op at 2. Singleton testified that defendant was driving the car whe n defendant, Masalmani, and La ndry arrived at the drug house, while Masalmani and Landry were in the backseat. After leaving the drug house, defendant and Masalmani took Landry to a nearby abandoned house, where either defendant or Masalmani punched Landry 2 and then defendant shot Landry in the back of the head. Defen dant asserts that he did not intend to kill Landry. But defendant told Sadur tha t when they were in Landry’s
vehicle after the initial kidna pping, Masalmani pulled out a gu n, and defendant and Masalmani then told Landry “what time it was[,]” which meant that they we re going to shoot him or injure him badly. This statement was made early in Landry’s captivity , suggesting that defendant knew throughout the long criminal transaction that he and Masalmani were going to shoot or badly injure Landry. Defendant told Sa dur that, after the shooting, defendant took the murder weapon and sold it because he had not yet obtained any money from the crimes. Sadur testified that
defendant exhibited no remorse w hen describing what occurred. The evidence supports the
conclusion that defendant was ac tively and extensively involved in committing the crimes, and
there is no indication that def endant was subjected to any fami ly or peer pressure. 3 Therefore, the trial court properly concl uded that this factor did not wei gh in favor of defendant.

The next Miller factor is whether defendant “might have been charged and convic ted of a lesser offense if not for incompe tencies associated with youth – for example, his inability to deal with police officers or prosecutors (including on a plea agreem ent) or his incapacity to assist his own attorneys.” Miller , 132 S Ct at 2468. The trial court correctly noted that there is no

2 Although the prosecutor contends that defendant punched Landry , it is unclear from Sadur’s use of the pronoun “he” whether itwas defendant or Masalmani w ho punched Landry.

3 Kathleen Schaefer, a defense expert, claimed that peer pressur e was a significant issue in this case but declined to elaborate on the specifics of this case, i nstead asserting only generally that children are susceptible to peer pressure because their brains are not yet fully developed.-6- evidence of any incapacities of youth that rendered defendant u nable to participate in his defense or that led him to implicate hims elf. This factor therefore di d not weigh in favor of mitigation.

The final factor is the possibi lity of rehabilitation suggeste d by the circumstances.

Miller , 132 S Ct at 2468. Dr. Keating explained that a person’s pros pects for rehabilitation are associated with his or her developmental history. Negative exp eriences and behaviors during a person’s developmental period increase the probability that the person will not succeed in rising above difficulties. Some people do not change; the worse the c ircumstances, the more likely that the person will not overcome their circumstances.

Kathleen Schaefer, the defense expert on parole and probation, testified generally that people have the capacity to change over time and asserted that defendant could make positive changes. Schaefer agreed with Dr. Keating that there is no tes t that will determine whether a person can be rehabilitated. Sch aefer indicated that a percent age of juveniles will continue on a path of chronic violent behavior. Schaefer agreed with a studyindicating that a large proportion
of those involved in violent beh avior at an early age eventuall y become chronic violent offenders. She noted that impaired development as well as psyc hological and emotional difficulties can arise from child abuse and neglect, and such c onditions can exist on a long-term basis. Schaefer agreed that some people change and some people do not change. Schaefer was aware that defendant’s juvenile record included arrests for tru ancies, curfew violations, trespass, assaults, entry without permi ssion, and unarmed robbery. Defen dant was then convicted in the present case of first-degree f elony murder, kidnapping, carjack ing, and felony-firearm, and Schaefer agreed that this reflected a type of progression which is not uncommon. Schaefer was not making a prediction about def endant but said that people ha ve the capacity to change. Schaefer said that defendant was introspective in meetings and seemed to understand the gravity of what occurred. Schaefer hopes defendant will build on these developments but lacked proof that he would do so. Her interview of defendant took place in the structured prison setting, and
she has not met him on the stree t where defendant would have to make his own way.

The trial court correctly conclu ded that this factor did not f avor mitigation. Although the difficulty of defendant’s upbringi ng weighs in his favor, it al so indicates that he faces significant challenges in improving himself, as reflected in the testimony of Dr. Keating and Schaefer. Although Schaefer made vague allus ions to defendant purportedlydemonstrating introspection, the record is bereft of evidence that defendant has accepted re sponsibility or shown genuine
remorse for his crimes. No basis exists to conclude that he ha s made any substantial progress in rehabilitating himself in the many years that he has been incar cerated since committing the offenses, nor is there any discernable basis to conclude that h e is likely to do so in the future. Sadur’s testimony indicated thatdefendant demonstrated no remo rse when describing the crimes.
Defendant has received five mis conduct tickets during his incar ceration. Defendant’s central role in holding Landry captive for many hours, the brutal execu tion style of the murder, defendant’s subsequent selling of the murder weapon, and his fa ilure to accept responsibility or exhibit remorse in the many years since the crimes were committ ed lend considerable support to the trial court’s conclusion that defendant’s prospects for reh abilitation are negligible. The trial court properly concluded that this factor did not favor mitigat ion.

Overall, our review of the record indicates that the trial cou rt accurately analyzed each of
the Miller factors and correctly concluded that defendant is the rare juve nile offender whose-7- crime reflects irreparable corr uption. The trial court therefo re did not abuse its discretion in determining that defendant shoul d be sentenced to life imprison ment without parole.

Defendant next argues that the trial court erred in imposing a ttorney fees without conducting an inquiry into defendant’s ability to pay. We disa gree. This Court reviews de novo questions of law, including issu es of statutory interpretation. People v Martin , 271 Mich App 280, 286-287; 721 NW2d 815 (2006).

MCL 769.1k(1)(b)( iv ) authorizes the trial court to impose at sentencing “[t]he exp enses of providing legal assistan ce to the defendant.” MCL 769.1 lprovides for the deduction of funds from an incarcerated defendant’s prison account:

If a prisoner under the jurisdic tion of the department of corr ections has been ordered to pay any sum of money as described in [MCL 769.1 k] and the department of corrections receives an order from the court on aform prescribed by the state court administrative office, the department of cor rections shall deduct 50% of the funds received by the prisoner in a month over $50.0 0 and promptly forward a payment to the court as provided in the order when th e amount exceeds $100.00, or the entire amount if the prisoner is paroled, is tr ansferred to community programs, or is discharged on the maximum sentence. .

. .

MCL 769.1k “allows for the impositi on of a fee for a court-appo inted attorney irrespective of a defendant’s ability to pay, and [MCL 769.1 l ] allows the trial court to order that a prisoner’s prison account be reduced to satisfy costs imposed under [MCL 7 69.1k]. This is usually accomplished by a remittance order, which also does not require an ability-to-pay analysis.” People v Jackson , 483 Mich 271, 286; 769 NW2d 630 (2009). In Jackson , 483 Mich at 294, our Supreme Court rejected a challe nge to the constitutionality of MCL 769.1k and held that “there is no constitutionally required ability-to-pay analysis until t he fee is actually enforced.” The

Jackson Court noted that MCL 769.1 lprovided a procedure for enforcing the fee without an ability-to-pay assessment but concluded that this procedure was constitutional “because the statute’s monetary calculations necessarily conduct a preliminary, general ability-to-pay assessment before the prisoner’s funds are taken.” Id . at 295.

MCL 769.1 l inherently calculates a prisoner’s general ability to pay and, in effect, creates a statutory presumption of nonindigency. Th e provision only allows the garnishment of a prisoner’s account if the balance e xceeds $50. Although this amount would be insufficient to sustain a defenda nt living among the general populace, it is uncontested that a prisoner’s “livi ng expenses” are nil, as the prisoner is clothed, shel tered, fed, and has all his med ical needs provided by the state. The funds left to the prisoner on a monthly basi s are more than adequate to cover the prisoner’s other minimal expenses and obl igations without causing manifest hardship. Thus, we conclude that [MCL 769.1 l ’s] application makes a legitimate presumption that the prisoner is not indigen t. [ Id .]

“[I]f a prisoner believes that his unique individual financial circumstances rebut [MCL 769.1 l ’s] presumption of nonindigency, he may petition the court to reduc e or eliminate the amount that the remittance order requires him to pay.” Id . at 296.-8- [W]hen reviewing a prisoner’s claim, lower courts must receive the prisoner’s petition and any proofs of his uni que and extraordinary financi al circumstances. Further, the lower courts should only hold that a prisoner’s in dividual circumstances warrant amending or reducing the remittance order when, in its discretion, it determines that e nforcement would work a manifes t hardship on the prisoner or his immediate family. The trial courts are under n o obligation to hold any formal proceedings. They are only required to amend the re mittance order when [MCL 769.1 l ’s] presumption of nonindigency is rebutted with evidence that enforcement would impose a manif est hardship on the prisoner or his immediate family. Beyond these basic parameters, we leave it to the tria l courts, in their sound discretion, to decide how t o adjudicate a p risoner’s clai m that his individual circumstances rebut [MCL 769.1 l ’s] presumption of nonindigency. [ Id . at 296- 297.]

Defendant’s argument that the trial court erred in imposing at torney fees without conducting an assessment of defendant’s ability to pay is devoi d of merit. An ability-to-pay assessment is required only when the assessment is enforced and the defendant contests his ability to pay. Id . at 298. After imposing the fees, the trial court entered a r emittance order in
conformance with MCL 769.1 l , requiring the Department of Corrections to collect 50% of fun ds received by defendant over $50 each month. Defendant argues th at the trial court should not
have entered this order because “[d]efendant remains indigent, serving a non-parolable life
term.” Defendant has not follo wed the proper procedure under Jackson . Defendant has not filed a petition or any proofs in the trial court setting forth his u nique financial circumstances. 4 Under

Jackson , it is for the trial court in the first instance to exercise i ts discretion in considering
whether defendant has established that his individual financial circumstances rebut the statutory presumption of nonindigency. Defendant’s appellate argument is thus premature, and he has failed to establish any error on t he part of the trial court.

We affirm.

/s/ Stephen L. Borrello /s/ Jane E. Markey
/s/ Michael J. Riordan

4 In his appellate brief, defenda nt also fails to set forth any unique financial circumstances.