If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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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UNPUBLISHED

August 18, 2022

v No. 357766

Berrien Circuit Court

MARK ANTHONY ABBATOY, LC No. 1997-403846-FC

Defendant-Appellant.

Before: RICK, P.J., and BOONSTRA and O’BRIEN, JJ.

PER CURIAM.

In October 1997, a jury convicted then-17-year-old defendant, Mark Anthony Abbatoy, of 

first-degree felony murder, MCL 750.316(1)(b), for the beating death of the victim, Connie 

DePalma. Defendant carried out this beating with his codefendant, Anthony DePalma, who was 

the victim’s son. Defendant was initially sentenced to life imprisonment without the possibility of 

parole (LWOP), but that sentence was reconsidered as a result of MCL 769.25 and MCL 769.25a, 

and the United States Supreme Court’s decisions in Miller v Alabama, 567 US 460, 465; 132 S Ct 

2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US 190, 208-209, 136 S Ct 718; 

193 L Ed 2d 599 (2016). Upon reconsideration, the trial court declined to reimpose a sentence of 

LWOP and, following a hearing, resentenced defendant to 40 to 60 years’ imprisonment. 

Defendant now appeals that sentence as of right.

After defendant appealed, our Supreme Court released People v Boykin, ___ Mich ___; 

___ NW2d ___ (2022) (Docket Nos. 157738; 158695). There, our Supreme Court held that, when 

sentencing juvenile defendants to a term-of-years sentence under MCL 769.25 or MCL 769.25a, 

trial courts must consider a juvenile defendant’s youth, and must treat that youth as a mitigating 

factor. Id. at ___; slip op at 1. The Court added, however, that a trial court need not “articulate 

on the record how a defendant’s youth affected the decision.” Id.

Having reviewed the trial court’s opinion, it is not apparent that the trial court considered 

defendant’s youth at the time of the offense when resentencing defendant, and even if the court 

did, it is not apparent that the court treated defendant’s youth as a mitigating factor. Accordingly, 

although the trial court was not required to articulate on the record how defendant’s youth affected 
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its decision, we nevertheless vacate defendant’s sentence and remand for resentencing in light of 

Boykin.

On appeal, defendant raises other issues that we will address because they are likely to

reoccur on remand. First, we address defendant’s argument that the evidence did not support the

trial court’s conclusion that defendant inflicted the fatal blows to the victim. Second, we address 

defendant’s argument that he could not be sentenced to a longer sentence than his similarly situated 

codefendant, DePalma. Defendant raises a third argument—that the trial court failed to consider 

relevant sentencing factors when it resentenced defendant—but we decline to address this 

argument in light of our holding that defendant must be resentenced.

I. FACTUAL AND PROCEDURAL HISTORY

This case arises out of the beating death of the victim on May 7, 1997, in Bridgman, 

Michigan. According to trial testimony, on that afternoon, defendant was with DePalma. They

were both 17 years old. Earlier in the day, defendant told DePalma that he planned to run away to 

California, and DePalma suggested that they steal his mother’s car and drive there. DePalma went 

into his house and stole the victim’s car keys, then went to a nearby restaurant with defendant to 

discuss their plan. Assuming that the victim would immediately call the police when defendant 

and DePalma took her car, the two planned to knock her out with a shovel so they could be farther 

away before the authorities were notified of the theft. With this as the plan, defendant and 

DePalma returned to DePalma’s house and found the victim in the garage. Defendant hit the victim

in the head with a shovel three times, and she fell down to the ground. Believing the victim was 

knocked out, defendant left the garage, but then heard a noise and realized that the victim had

gotten up and went into the house. Defendant chased after the victim, kicked down the door to the 

house, and followed the victim upstairs, where he saw her on the phone. Afraid she was calling 

911, defendant ripped the phone off the wall, then repeatedly hit the victim on the head with the 

shovel until she fell to the floor. Defendant maintained at both his trial and the Miller hearing that 

the victim was still breathing when he left her. At defendant’s trial, he testified that he laid the 

shovel next to the fallen victim and went downstairs, and told DePalma that if he wanted his mother 

dead, he would have to do it himself. According to defendant, after that, DePalma went upstairs, 

and returned a short time later with the shovel. The forensic pathologist at defendant’s trial 

testified that the victim’s cause of death was cranial cerebral trauma (severe head injuries). The 

victim suffered 10 lacerations on the back and top of her head, and three of those wounds 

penetrated her skull.

Defendant and DePalma were tried at the same trial with separate juries. They were both 

convicted of first-degree felony murder and sentenced to LWOP.

In 2016, following the release of Miller and Montgomery, the prosecution moved to 

resentence defendant to LWOP under the procedures outlined in MCL 769.25 and MCL 769.25a. 

After holding a two-day Miller hearing, the trial court denied that motion and scheduled a 
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resentencing hearing. At that hearing, the trial court resentenced defendant to 40 to 60 years’

imprisonment.

1

 This appeal followed.

II. STANDARD OF REVIEW

“This Court reviews sentencing decisions for an abuse of discretion.” People v Skinner, 

502 Mich 89, 131; 917 NW2d 292 (2018). A trial court’s sentencing decision is an abuse of 

discretion if it violates the principle of proportionality, which requires the sentence imposed “be 

proportionate to the seriousness of the circumstances surrounding the offense and the offender.”

Skinner, 502 Mich at 131-132 (quotation marks and citation omitted). Factual findings are 

reviewed for clear error, and questions of law are reviewed de novo. Id. at 137 n 27.

III. BOYKIN

In People v Bennett, 335 Mich App 409, 413-414; 966 NW2d 768 (2021), this Court 

explained the process for resentencing a defendant who was sentenced to life imprisonment 

without the possibility of parole as a juvenile:

Anticipating that the United States Supreme Court would give Miller

retroactive effect, Michigan’s Legislature designed a system for resentencing all 

prisoners serving life without parole who were under the age of 18 when they 

committed the offense. In those cases, the resentencing court must select either life 

without parole or a term-of-years sentence. Prosecutors seeking imposition of a 

life-without-parole sentence are obligated to file a motion specifying the grounds 

for imposing that punishment. The resentencing court then must hold a hearing to 

consider the juvenile sentencing factors set forth in Miller and other relevant 

information, including the defendant’s record while incarcerated. The court is 

additionally obligated to specify on the record the aggravating and mitigating 

circumstances considered by the court and the court’s reasons supporting the 

sentence imposed. If the court elects a term-of-years sentence rather than life 

without parole, the court shall sentence the individual to a term of imprisonment 

for which the maximum term shall be not less than 60 years and the minimum term 

shall be not less than 25 years or more than 40 years. [Quotation marks and

citations omitted. See also MCL 769.25a; MCL 769.25.]

If the court elects to impose a term-of-years sentence, “[t]here are no sentencing guidelines 

to guide a trial court’s exercise of discretion within” the minimum-term range of 25 years to 40 

years. People v Wines, 323 Mich App 343, 350; 916 NW2d 855 (2018), rev’d in part on other 

grounds 506 Mich 954 (2020). In place of sentencing guidelines, resentencing courts should be 

guided by the sentencing objectives provided in People v Snow, 386 Mich 586, 592; 194 NW2d 

314 (1972). Wines, 323 Mich App at 352. In Snow, 386 Mich at 592, the Michigan Supreme 

Court directed a sentencing court to consider the following objectives: (1) the reformation of the 

 

1 DePalma was resentenced by a different trial court judge to 27 to 60 years’ imprisonment. He 

was released in September 2020.
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offender; (2) protection of society; (3) the disciplining of the wrongdoer; and (4) the deterrence of 

others from committing like offenses.

This was the state of our caselaw when the trial court resentenced defendant. Following 

defendant’s resentencing, however, our Supreme Court released Boykin, ___ Mich at ___; slip op 

at 13, in which it held “that in all sentencing hearings conducted under MCL 769.25 or MCL 

769.25a, trial courts are to consider the defendant’s youth and must treat it as a mitigating factor.” 

In other words, when the trial court was deciding the minimum-term range of defendant’s termof-years sentence under MCL 769.25 or MCL 769.25a, it was not only required to consider the 

Snow objectives, but also defendant’s youth at the time of the offense, and that was to be treated 

as a mitigating factor.

Having reviewed the transcript from the resentencing hearing, it is not apparent that the 

trial court considered defendant’s youth and its attendant circumstances. See Boykin, ___ Mich at 

___; slip op at 11 (“[W]e hold that consideration of youth and its attendant circumstances is also 

required by this state’s sentencing jurisprudence.”). The trial court focused almost exclusively on 

the horrific nature of defendant’s crime, and nothing about that discussion suggested that the trial 

court was considering defendant’s youth and its attendant circumstances.

While the trial court referenced defendant’s age at one point in its ruling, that reference 

was fleeting. The court stated:

If you—if your mother had had you 22 weeks before she did we would [not]

be here today. You would have been 18 years of age and you wouldn’t have had 

the right to a Miller hearing. But we are where we are. And I understand the 

Supreme Court had to set a dark line and that benefits some people and it doesn’t 

benefit others.

[2]

From this, it appears that the court was merely observing defendant’s age, not taking defendant’s 

youth and its attendant circumstances into consideration for purposes of sentencing defendant. 

Even if this conclusion is wrong, the trial court’s statement certainly does not suggest that it was 

considering defendant’s youth as a mitigating factor, as Boykin requires. See Boykin, ___ Mich at 

___; slip op at 1. The court was, at best, making a neutral observation about the fact that 

defendant’s age allowed him the benefit of a Miller hearing.

Accordingly, on the basis of our conclusions that (1) the trial court did not consider 

defendant’s youth when sentencing defendant to a term of years under MCL 769.25 or MCL 

769.25a, and (2) to any extent that the court did consider defendant’s youth, it did not treat 

 

2 Perhaps highlighting the moving target that lower courts face when trying to resentence juvenile 

defendants under MCL 769.25 or MCL 769.25a, we note that the sentiment expressed by the trial 

court in this statement appears to no longer be accurate in light of our Supreme Court’s recent 

holding in People v Parks, ___ Mich ___, ___; ___ NW2d ___ (2022) (Docket No. 162086); slip 

op at 35-36 (holding that it is unconstitutional to impose a mandatory sentence of LWOP on an 

18-year-old defendant, and that such a defendant is entitled to the “full protections of MCL 769.25 

and our caselaw”).
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defendant’s youth as a mitigating factor, we vacate the trial court’s sentence and remand for 

resentencing in light of Boykin.

IV. ACCURATE INFORMATION

Despite our holding remanding the case, we address defendant’s arguments raised on 

appeal that are likely to arise again during his resentencing. First, defendant asserts that the trial 

court erred by sentencing defendant on the basis of inaccurate information because the record does 

not support the court’s conclusion that defendant inflicted the injuries that resulted in the victim’s 

death. We disagree.

A defendant is entitled to be sentenced “on the basis of accurate information.” People v 

McGraw, 484 Mich 120, 131; 771 NW2d 655 (2009). If a defendant’s sentence is supported by 

inaccurate information, resentencing is required. People v Jackson, 487 Mich 783, 792; 790 

NW2d 340 (2010).

Defendant asserts that the trial court’s statement that defendant “inflicted the majority of 

the blows and caused the death of this victim” was inaccurate. Although the police officer who 

testified on behalf of the prosecution at defendant’s Miller hearing testified that he could not 

determine who issued the blow that resulted in the victim’s death, there is evidence in the record 

supporting the trial court’s conclusion that defendant inflicted a majority of the blows that resulted 

in the victim’s death.

The evidence presented both at trial and during these proceedings portrayed a horrific

attack and killing.3 Defendant admitted that he hit the victim in the head with the shovel three 

times in the garage, then followed her into the house, ripped the phone off the wall while the victim 

tried to call for help, and hit her in the head with the shovel until she fell to the floor. Defendant 

specified that he hit her with the shovel her until she passed out. The forensic pathologist who 

testified at defendant’s trial described the gruesome wounds that the victim suffered, and explained 

that the victim would have fallen down and been unable to get up and walk after several of the 

blows that penetrated her skull. He explained that it was possible that she was still breathing and 

exhibited other vital signs for approximately 10 minutes after the injuries, even though she would 

have been beyond saving at that point. Therefore, it is possible that the victim was still breathing 

when defendant stopped hitting her, as defendant testified, but she would later have died as a result 

of defendant’s attack regardless.

 

3 On appeal, defendant argues that the trial court did not consider the testimony from defendant’s 

trial when resentencing defendant. This argument is premised on the fact that the trial court did 

not state that it had reviewed the record from defendant’s trial when resentencing defendant. The 

trial court had obviously reviewed the record from defendant’s trial, however, because the court 

clearly stated at the Miller hearing that it had reviewed the trial transcripts in preparation for that 

hearing, and the trial transcripts were admitted as exhibits at the Miller hearing, along with the 

police reports, autopsy report, and laboratory report. Regardless, at defendant’s resentencing on 

remand, the trial court can alleviate defendant’s concerns by specifying what documents it 

reviewed in preparation for the resentencing.
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Moreover, defendant admitted that he never saw DePalma hit the victim with the shovel, 

and blood was only found on defendant. The police recovered the shirts worn by defendant when 

he attacked the victim, and they were covered in blood. On the other hand, when DePalma was 

apprehended, he was wearing the same clothes as he was wearing the day before (according to 

defendant’s description), and he did not have any blood on him. Likewise, police found blood in 

the car only in the passenger seat, where defendant was sitting.

In light of this evidence, it was reasonable for the trial court to find that defendant inflicted 

the majority of the blows that resulted in the victim’s death. For clarity, however, we note that,

on remand, the trial court is not bound by its finding that defendant “inflicted the majority of the 

blows and caused the death of this victim,” and is free to make contrary findings if it so chooses.

V. SIMILARLY SITUATED DEFENDANTS

Defendant also contends that the trial court abused its discretion by imposing a sentence 

with a minimum term that was 13 years longer than the sentence imposed on DePalma because 

they are similarly situated codefendants. We disagree.

Simply put, based on the trial court’s findings, defendant is not similarly situated to 

DePalma. The sentencing court in DePalma’s case determined that DePalma did not inflict the 

injuries that led to the victim’s death. The trial court here found that defendant “inflicted the 

majority of the blows and caused the death of this victim”—a reasonable conclusion based on the 

evidence submitted for the reasons explained above. If these differing conclusions persist on 

remand, it is not necessarily unreasonable for defendant’s sentence to be different than DePalma’s. 

Accordingly, defendant’s argument that he must necessarily be resentenced to the same sentence 

as DePalma is without merit.

Defendant’s sentence is vacated, and we remand for resentencing. We do not retain 

jurisdiction.

/s/ Michelle M. Rick

/s/ Colleen A. O’Brien