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Michigan Supreme Court

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 17, 2003
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellant/


Cross-Appellee,
 

v No. 121564
 

GREGORY PETTY,
 

Defendant-Appellee/


Cross-Appellant.
 

BEFORE THE ENTIRE COURT
 

CAVANAGH, J.
 

A jury convicted defendant of first-degree felony murder,
 

armed robbery, and possession of a firearm during the
 

commission of a felony. Because defendant was a juvenile at
 

the time of the offenses, the trial judge held a dispositional
 

hearing, as required by MCL 712A.18(1)(n), which was combined
 

with defendant’s sentencing hearing. The judge sentenced
 
defendant as an adult to a mandatory term of life imprisonment
 

for the felony-murder conviction. Defendant appealed,
 

claiming that the trial judge failed to explicitly consider
 

each factor articulated in MCL 712A.18(1)(n), as indicated in
 

People v Thenghkam, 240 Mich App 29; 610 NW2d 571 (2000)
 

(construing the “automatic waiver” statute, MCL 769.1[3],
 

which mandates an inquiry nearly identical to MCL
 

712A.18[1][n]). Defendant also argues that he was denied the
 

right to allocute before the imposition of his sentence. The
 

Court of Appeals affirmed the convictions, but remanded for
 

correction of the judgment of sentence and for resentencing.
 

In response to the prosecutor’s appeal, we reject the approach
 

utilized by Thenghkam, vacate relevant portions of the Court
 

of Appeals decision, and remand to the trial court for
 

resentencing in accord with this opinion.
 

I. Facts and Proceedings
 

At the age of fifteen, defendant Gregory Petty encouraged
 

his twelve-year-old companion to commit armed robbery. In the
 

course of the robbery, the twelve-year-old child shot and
 

killed the victim, Calvin Whitlow. In a statement to the
 

police, the younger companion indicated that defendant gave
 

him the gun. When asked why he shot the victim, the twelve2
 
year-old stated, “Greg threatened to kill me if I didn’t.”1
 

As permitted by MCL 712A.2d, defendant’s case was
 

designated for trial in the family division as an adult
 

criminal proceeding. The jury found defendant guilty of
 

felony murder, armed robbery, and felony-firearm. 


Following a combined dispositional and sentencing
 

hearing,2 the court imposed an adult sentence, one of three
 

options available to the court under MCL 712A.18(1)(n).
 

Defendant received a mandatory sentence of life imprisonment
 

for the felony-murder conviction, MCL 750.316(1)(b), and a
 

consecutive two-year term for the felony-firearm conviction,
 

MCL 750.227b.
 

Before imposing the sentence, the trial judge articulated
 

his rationale in the following statement: 


The thought of sentencing anyone to life in


prison without chance of parole takes your breath


away. But after you catch your breath it’s very


clear that we have guidelines. They’re called
 

laws. And we’re required to follow the law. To
 

that extent, this Court’s responsibility, this


Court’s duty is to interpret not only the
 

conviction of first degree murder; not only the


conviction for armed robbery; not only the
 

conviction for felony firearm, but to look at how a


sentence as an adult versus disposition as a


juvenile will impact the community. 


1

Defendant’s twelve-year-old companion, the actual 

shooter, accepted an offer to plead guilty of second-degree

murder and received a delayed sentence. 

2

The court exercised its discretion and combined the 

dispositional and sentencing hearings into one proceeding. 

3
 
The Court has had a chance to hear quite


eloquently from the family of the victim. They


have been consistant [sic] in their appearances


before the Court throughout this lengthy process.


I don’t believe there’s any question, in fact it’s


not controverted, the jury found [defendant] guilty


of first degree murder. There is no more serious
 

crime. The jury also found that even though he was


not the actual person who fired the weapon that


resulted in the death of Mr. Whitlow, . . . he was


responsible for that.
 

The record of [defendant], the juvenile


record, certainly reflects a number of contacts. I
 

was a little surprised at some of the testimony


offered this morning. 


I talked about the law a few moments ago. The
 

law dictates whether people are innocent or guilty


upon the presentation of evidence and a ruling


either by a Court or by a judge or by a jury. To
 

read a report that says there was a dismissal or


there was–there’s insufficient evidence does not
 

begin to tell the whole story. What I have though


based on that information that’s in the file, based


on these reports is there has been consistant [sic]


contact with this Court that has resulted in not
 

one, but now two convictions. One for carrying a


concealed weapon and now this one, which
 

includes–actually three convictions for various


felonies including murder one.
 

[Counsel for defendant] argued that there is


sufficient juvenile programming available to assist


[defendant]. I don’t really think that’s
 

controverted. The question is did the witnesses
 

come forward with ambiguous recommendations
 

about–Judge, I think that he ought to be in a


juvenile system, but I think he probably needs to


be their [sic] longer than the law allows. That is
 

the crux isn’t it? It’s what [the] law will allow.


And if you’re saying that he needs to be in there


longer than what [the] law will allow for a


juvenile then you are saying to this Court that the


only option we have available is the adult
 

sentence. He’s not been successful in the
 

programming requirements relative to this matter.
 

4
 
At the hearing involving Mr. Moore, the Court


talked about penalizing the mother if the law would


allow. Now perhaps that was a little unfair. The
 

mother, the father, family, school, court, you name


it, I think that there’s plenty of blame to go


around. But the reality is that when you get


finished assessing blame it still gets us back to


what [the] law demands. If the juvenile


disposition will not be sufficient then from where


I sit there is no alternative. As such I will
 

sentence [defendant] as an adult. The law requires


a mandatory life sentence without parole. That’s
 

all.
 

On appeal, defendant alleged several errors, including a
 

violation of MCL 712A.18(1)(n), which mandates consideration
 

of the enumerated criteria, and a violation of his right to
 

allocute before sentencing. The Court of Appeals affirmed,
 

but remanded for resentencing in light of the court’s failure
 

to specifically articulate factual findings regarding each
 

criterion listed in §§ 18(1)(n)(i)-(vi) and its failure to
 

provide defendant with an opportunity to allocute.3 We
 

granted the prosecutor’s application for leave to appeal. 467
 

Mich 896 (2002). 


II. Standard of Review
 

Because we must clarify the proper interpretation of MCL
 

712A.18(1)(n), this issue of law is subject to review de novo.
 

In re MCI, 460 Mich 396, 413; 596 NW2d 164 (1999). 


Further, we review de novo the scope and applicability of
 

3 Unpublished opinion per curiam, issued April 26, 2002

(Docket No. 219348). 

5
 
 

the common-law right to allocute, also a question of law.
 

People v Petit, 466 Mich 624, 627; 648 NW2d 193 (2002). 


III. The Dispositional and Sentencing Inquiry
 

Following a judgment of conviction in a designated case,
 

MCL 712A.18(1)(n) provides a judge with the option of imposing
 

either a juvenile disposition, an adult sentence, or a blended
 

sentence, i.e., a delayed sentence pending defendant’s
 

performance under the terms provided by a juvenile
 

disposition. To understand the appropriate method of inquiry
 

a judge is required to undertake, we must examine the statute,
 

MCL 712A.18(1)(n), to determine the Legislature’s intent.
 

The first step in discerning legislative intent requires
 

review of the statutory text adopted by the Legislature.
 

House Speaker v State Administrative Bd, 441 Mich 547, 567;
 

495 NW2d 539 (1993). If unambiguous, the Legislature will be
 

presumed to have intended the meaning expressed. Lorencz v
 

Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). Should
 

reasonable minds differ with respect to a statute’s meaning,
 

judicial construction is appropriate. Sam v Balardo, 411 Mich
 

405, 418-419 n 9; 308 NW2d 142 (1981).
 

MCL 712A.18 provides in part: 


(1) [I]f the court finds that a juvenile is


within this chapter [i.e., subject to the juvenile


code], the court may enter any of the following


orders of disposition that are appropriate for the


welfare of the juvenile and society in view of the


facts proven and ascertained:
 

6
 
* * * 


(n) If the court entered a judgment of
 

conviction under section 2d[4] of this chapter, enter


any disposition under this section or, if the court


determines that the best interests of the public


would be served, impose any sentence upon the


juvenile that could be imposed upon an adult


convicted of the offense for which the juvenile was


convicted. If the juvenile is convicted of a


violation or conspiracy to commit a violation of .
 

. . MCL 333.7403,[5] the court may impose the


alternative sentence permitted under that section


if the court determines that the best interests of
 

the public would be served. The court may delay


imposing a sentence of imprisonment under this


subdivision for a period not longer than the period


during which the court has jurisdiction over the


juvenile under this chapter by entering an order of


disposition delaying imposition of sentence and


placing the juvenile on probation upon the terms


and conditions it considers appropriate, including


any disposition under this section. If the court
 

delays imposing sentence under this section,


section 18i of this chapter applies. If the court
 

imposes sentence, it shall enter a judgment of


sentence. If the court imposes a sentence of


imprisonment, the juvenile shall receive credit


against the sentence for time served before
 

sentencing. . . . 


The discretionary authority to choose among three
 

alternatives is plainly stated in this portion of the statute;
 

the court may “enter any [juvenile] disposition,” “impose any
 

sentence . . . that could be imposed upon an adult,” or “delay
 

imposing a sentence of imprisonment . . . by entering an order
 

4

MCL 712A.2d prescribes the conditions under which a

juvenile may be tried as an adult. 

5 MCL 333.7403 proscribes the possession of controlled

substances. 

7
 
of disposition delaying imposition of sentence and placing the
 

juvenile on probation upon the terms and conditions it
 

considers appropriate . . . . ” Id.
 

To facilitate the appropriate inquiry when choosing among
 

the three sentencing options, the Legislature has prescribed
 

the relevant considerations in the remaining portion of the
 

statute:
 

In determining whether to enter an order of


disposition or impose a sentence under this
 

subdivision, the court shall consider all of the


following factors, giving greater weight to the


seriousness of the offense and the juvenile's prior


record: 


(i) The seriousness of the offense in terms
 

of community protection, including, but not limited


to, the existence of any aggravating factors
 

recognized by the sentencing guidelines, the use of


a firearm or other dangerous weapon, and the impact


on any victim. 


(ii) The juvenile's culpability in committing


the offense, including, but not limited to, the


level of the juvenile's participation in planning


and carrying out the offense and the existence of


any aggravating or mitigating factors recognized by


the sentencing guidelines. 


(iii) The juvenile's prior record of
 

delinquency including, but not limited to, any


record of detention, any police record, any school


record, or any other evidence indicating prior


delinquent behavior. 


(iv) The juvenile's programming history,


including, but not limited to, the juvenile's past


willingness to participate meaningfully in
 

available programming. 


(v) The adequacy of the punishment or
 

programming available in the juvenile justice
 

8
 
 

system. 


(vi) The dispositional options available for


the juvenile. [MCL 712A.18(1)(n).]
 

The Court of Appeals has addressed the degree of analysis
 

required by the nearly identical inquiry prescribed by MCL
 

769.1(3) and concluded that specific findings must be
 

articulated with regard to each criterion enumerated in the
 

statute. Thenghkam at 41. Reviewing for clear error, the
 

Court of Appeals evaluated the trial court’s ability to “sort
 

the logical, reasonable, and believable evidence” from the
 

irrelevant information. Id. at 67. Next, according to the
 

Court of Appeals, the trial judge must “consider and balance
 

all the factors to decide whether to sentence a defendant as
 

a juvenile or adult.” Id. This consideration is subject to
 

review for an abuse of discretion. Id. at 42. To justify
 

this detailed approach, the Court explained: 


[A]s with all judicial decisions that do not


rest solely on the law, a trial court deciding


whether to sentence a defendant as an adult or a
 

juvenile must point to the requisite facts to


justify its decision. Consequently, and aside from


the question of clear error, if the trial court


fails to make findings of fact, it cannot fully


exercise its discretion by giving proper weight to


the various factors it must consider to make its
 

decision under the sentencing statute. [Id. at 48
 

(citations omitted).]
 

While we agree with the Thenghkam Court that decisions
 

concerning a juvenile’s future require the most thoughtful and
 

reasoned solicitude—whether the family division must
 

9
 
automatically waive the juvenile into the circuit court’s
 

jurisdiction, MCL 769.1(3), or try the juvenile as an adult in
 

a “designated proceeding,” MCL 712A.18(1)(n)—we find the focus
 

of the Court of Appeals analysis misplaced. Instead of
 

concentrating primarily on the sufficiency of the trial
 

court’s factual determinations vis-à-vis the criteria listed
 

in MCL 712A.18(1)(n)(i)-(vi), a plain reading of the statute
 

requires that a court deliberately consider whether to enter
 

an order of disposition, impose a delayed sentence, or impose
 

an adult sentence in light of the six factors enumerated in
 

subsection 1(n)(i)-(vi). As evidence that it complied with
 

the statute, the trial court, on the record, must acknowledge
 

its discretion to choose among the three alternatives. Hence,
 

a court should consider the enunciated factors, MCL
 

712A.18(1)(n)(i) through (vi), to assist it in choosing one
 

option over the others. A trial court need not engage in a
 

lengthy “laundry list” recitation of the factors. Rather, the
 

focus of the hearing should be on the three options, i.e., an
 

adult sentence, a blended sentence, or a juvenile disposition,
 

as outlined in the recently adopted court rules.6 For this
 

reason, we repudiate the Court’s reasoning in Thenghkam to the
 

extent it conflicts with this explicit three-part inquiry. 


6

See MCR 3.955 specifically addressing these three

options. 

10
 
As a result, trial courts will no longer be forced to
 

undertake a mechanical recitation of the statutory criteria.
 

Rather, a court must logically articulate on the record why it
 

has chosen one alternative over the other two, in light of the
 

criteria articulated in MCL 712A.18(1)(n). By so doing, a
 

court performs the analysis required by the Legislature, while
 

establishing an adequate record to permit appellate review. 


In this case, the trial court offered a considered
 

rationale for its decision to sentence the defendant as an
 

adult. The court reasoned, in part:
 

[Counsel for defendant] argued that there is


sufficient juvenile programming available to assist


[defendant]. I don’t really think that’s
 

controverted. The question is did the witnesses
 

come forward with ambiguous recommendations
 

about–Judge, I think that he ought to be in a


juvenile system, but I think he probably needs to


be their [sic] longer than the law allows. That is
 

the crux isn’t it? It’s what the law will allow.
 

And if you’re saying that he needs to be in there
 

longer than what the law will allow for a juvenile
 

then you are saying to this Court that the only
 

option we have available is the adult sentence.
 

. . .
 

If the juvenile disposition will not be
 

sufficient then from where I sit there is no
 

alternative. As such I will sentence [defendant]
 

as an adult. The law requires a mandatory life


sentence without parole. That’s all. [Emphasis


added.]
 

From this record, it is clear that the trial court was
 

aware of its options to impose a juvenile disposition or an
 

adult sentence. What is not clear is whether the trial court
 

11
 
considered and rejected its option to impose a delayed
 

sentence once it determined that the juvenile system was
 

inadequate. Therefore, because we cannot be certain that the
 

trial court was aware of its discretion to impose a delayed
 

sentence, we remand this case for a rearticulation of its
 

analysis. On the basis of the evidence presented at the
 

hearing, the court shall acknowledge its discretion to choose
 

among the three options, articulating on the record its
 

rationale for selecting among the alternatives provided by our
 

Legislature, and in consideration of the factors prescribed by
 

MCL 712A.18(1)(n). 


IV. Juvenile-Allocution Requirements
 

Defendant also claims he was denied the opportunity to
 

allocute.7 As noted above, a juvenile defendant subject to
 

MCL 712A.18(1)(n), having been tried as an adult, may receive
 

a juvenile disposition, an adult sentence, or a blended
 

sentence. A sentencing court’s duty to provide a
 

defendant with the opportunity to allocute has been long
 

established: 


7

According to Blacks Law Dictionary, 7th ed, “allocute”

means “[t]o deliver in court a formal, exhortatory address; to

make an allocution.” “Allocution” generally refers to “[a]n

unsworn statement from a convicted defendant to the sentencing

judge or jury in which the defendant can ask for mercy,

explain his or her conduct, apologize for the crime, or say

anything else in an effort to lessen the impending sentence.”

Id. 

12
 
(2) . . . At sentencing the court, complying


on the record, must:
 

* * *
 

(c) give the defendant, the defendant's


lawyer, the prosecutor, and the victim an
 

opportunity to advise the court of any


circumstances they believe the court should
 

consider in imposing sentence[.] [MCR 6.425(D).]
 

This directive permits a defendant to speak in mitigation
 

of the sentence. When interpreting an analogous federal rule,
 

the United States Supreme Court underscored the value of this
 

opportunity: 


[The] legal provenance [of the federal rule


providing defendants with an opportunity to speak


to the court on their own behalf] was the
 

common-law right of allocution. As early as 1689,


it was recognized that the court's failure to ask


the defendant if he had anything to say before


sentence was imposed required reversal. . . .


Taken in the context of its history, there can be


little doubt that the drafters of [the federal


rule] intended that the defendant be personally


afforded the opportunity to speak before imposition


of sentence. . . . The most persuasive counsel may


not be able to speak for a defendant as the


defendant might, with halting eloquence, speak for


himself. [Green v United States, 365 US 301; 81 S


Ct 653; 5 L Ed 2d 670 (1961).]
 

In this case, the court—speaking exclusively to defense
 

counsel—asked if counsel had concluded defendant’s
 

dispositional presentation. This query immediately preceded
 

the court’s articulation of its sentencing rationale. At no
 

point did the court provide defendant with an opportunity to
 

13
 
allocute. 8
 

The prosecutor has claimed that defendant could not
 

possibly have been adversely affected by this omission because
 

the judge had no discretion with regard to sentencing; the
 

felony-murder statute, MCL 750.316, requires mandatory life
 

imprisonment upon conviction. However, this conclusion
 

ignores the historical foundation of the right to allocute.
 

Under English common law, all felony convictions resulted in
 

mandatory death sentences. See 4 Blackstone, Commentaries,
 

375-376. By providing an opportunity to address the court, a
 

defendant could pray for an excused or delayed sentence. Id.
 

Hence, the mandatory nature of a sentence does not ipso facto
 

render the common-law right to allocute inapposite.
 

In fact, the right to allocution does much more than
 

permit an accused to plead for mercy. “It . . . ensure[s]
 

that sentencing reflects individualized circumstances.
 

Furthermore, allocution ‘has value in terms of maximizing the
 

perceived equity of the process.’” United States v De Alba
 

8 This Court recently clarified the scope of a defendant’s

right to allocute in Petit at 636: “[T]he trial court must

allow the defendant a chance to speak on his own behalf before

being sentenced. This does not mean that the trial court must 

specifically ask the defendant whether he wishes to allocute,

although this would be the most certain way to ensure that all

defendants who do want to allocute on their own behalf are, in

fact, given the opportunity to do so.” 

14
 
Pagan, 33 F3d 125, 129 (CA 1, 1994) (citations omitted). Even
 

when a defendant fails to convince a judge that sentence
 

modification is warranted, the opportunity itself serves to
 

provide a defendant with an occasion to accept responsibility,
 

offering defendants and victims a potentially dignified and
 

healing exchange. Moreover, a juvenile defendant tried in a
 

criminal proceeding should be afforded—at a minimum—the same
 

protections available to adults. To deny a juvenile a
 

meaningful opportunity to allocute at the only discretionary
 

stage of a combined dispositional and sentencing proceeding
 

would seriously affect the fairness and integrity of the
 

judicial proceeding, particularly when the juvenile is subject
 

to an adult criminal proceeding. Just as we reject the
 

Thenghkam Court’s command to create a mechanical list of
 

factual findings for each criterion prescribed by the
 

Legislature, we must also reject any attempt to transform a
 

juvenile defendant’s common-law right to allocute into a
 

perfunctory, hollow exercise.
 

Because our current court rules do not expressly provide
 

juvenile defendants with an opportunity to allocute at
 

dispositional hearings, and because this phase of the
 

proceeding may be the only opportunity for a court to exercise
 

15
 
its discretion, we amend MCR 3.9559

 due to the need for
 

9

MCR 3.955 (formerly MCR 5.955) shall now read: 

(A) Determining Whether to Sentence or Impose


Disposition. If a juvenile is convicted under MCL


712A.2d, sentencing or disposition shall be made as


provided in MCL 712A.18(1)(n) and the Crime
 

Victim's Rights Act, MCL 780.751 et seq., if


applicable. In deciding whether to enter an order


of disposition, or impose or delay imposition of


sentence, the court shall consider all the
 

following factors, giving greater weight to the


seriousness of the offense and the juvenile's prior


record:
 

(1) the seriousness of the alleged offense in


terms of community protection, including, but not


limited to, the existence of any aggravating


factors recognized by the sentencing guidelines,


the use of a firearm or other dangerous weapon, and


the effect on any victim;
 

(2) the culpability of the juvenile in
 

committing the alleged offense, including, but not


limited to, the level of the juvenile's


participation in planning and carrying out the


offense and the existence of any aggravating or


mitigating factors recognized by the sentencing


guidelines;
 

(3) the juvenile's prior record of delinquency


including, but not limited to, any record of


detention, any police record, any school record, or


any other evidence indicating prior delinquent


behavior;
 

(4) the juvenile's programming history,


including, but not limited to, the juvenile's past


willingness to participate meaningfully in
 

available programming;
 

(5) the adequacy of the punishment or
 

programming available in the juvenile justice
 

16
 
immediate action to require allocution before a court
 

determines whether a child will serve a juvenile disposition,
 

a blended sentence, or an adult sentence.10
 

Therefore, on remand, the trial court shall provide
 

defendant with an opportunity to allocute before choosing
 

among the three alternatives prescribed in MCL 217A.18(1)(n).
 

V
 

Defendant was sentenced as an adult to mandatory life for
 

first-degree murder. MCL 712A.18(1)(n). For the reasons
 

stated above, we repudiate the Court of Appeals analysis in
 

Thenghkam, vacate apposite portions of the Court of Appeals
 

system; and
 

(6) the dispositional options available for


the juvenile.
 

The court also shall give the defendant, the


defendant's lawyer, the prosecutor, and the victim


an opportunity to advise the court of any


circumstances they believe the court should
 

consider in deciding whether to enter an order of


disposition or to impose or delay imposition of


sentence.
 

(B)-(E) [Unchanged.]
 

10MCR 1.201(D) provides: 

The Court may modify or dispense with the


notice requirements of this rule if it determines


that there is a need for immediate action or if the
 

proposed amendment would not significantly affect


the delivery of justice.
 

17
 
opinion below, and remand this case to the trial court for a
 

rearticulation of its analysis after the court has given
 

defendant an opportunity to allocute.
 

Michael F. Cavanagh


Maura D. Corrigan


Elizabeth A. Weaver
 

Marilyn Kelly


Clifford W. Taylor


Robert P. Young, Jr.


Stephen J. Markman
 

18