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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, FOR PUBLICATION March 8, 2018

9:15 a.m.

v No. 336550

Kent Circuit Court GREGORY WINES, LC No. 93

- 064278

- FC

Defendant

- Appellant.

Before: M ARKEY

, P .J., and S HAPIRO and G ADOLA , JJ.

P ER C URIAM

.

In 1994, defendant was convicted of first

- degree felony murder, MCL 750.316(1)(b), armed robbery, MCL 750.529, and kidnapping, MCL 750.349 . Though a minor, he was sentenced to life imprisonment without parole for the first

- degree murder conviction, to be served concurrently with sentences of life imprisonment for the armed robbery and kidnapping convictions. Following the United States Sup reme Court decision in Montgomery v Louisiana

, ___ US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016), in which it held that Miller v Alabama , 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), is to be applied retroactively, defendant was

scheduled to be resent enced. He was resentenced on December 9, 2016 to a term of 40 to 60 years. For the reasons set forth below, we vacate his sentence for first degree murder and remand for resentencing on that charge.

I. MILLER

, MONTGOMERY , AND MCL 769.25A

The Supreme Court decided Miller in 2012, but its opinion did not state whether that decision was to be applied retroactively. In 2016, the Court decided Montgomery , holding that

Miller was retroactive. In 2014, after the Miller decision, but before Montgomery , the Michigan Legislature passed MCL 769.25a, adopting sentencing provisions to come into effect in the event

that Miller was held to apply retroactively. This statute provides that prosecutors may seek a re

imposition of life without parole imprisonment, if t hey file a motion within a defined period of time. It goes on to provide in pertinent part that:

If the prosecuting attorney does not file a motion under subdivision (b), the court shall sentence the individual to a term of imprisonment for which the

max imum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years. . . . [MCL 769.25a (4)(c).]- 2

- The statute does not define any special considerations to be applied at resentencing. However, in Miller , the United States Supreme Court discussed differences between minors 1 and adults relevant to sentencing:

Roper [ 2 ] and Graham [ 3 ] establish that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, they are less deserving of the most severe punishments. Those ca ses relied on three significant gaps between juveniles and adults. First, children have a lack of maturity and an undeveloped 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 control over their 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 People v Garay , 320 Mich App 29, 50; 903 NW2d 88 3 (2017), we held that in deciding whether a minor should be sentenced to life without parole, a sentencing judge must make the decision based upon these factors. We held that it was an error of law for the judge to rely on broader sentencing goals such a s rehabilitation, punishment, deterrence, and protection.

Id . at 46

- 48. This was consistent with the Miller court’s conclusion that typical sentencing considerations such as retribution and deterrence are uniquely altered when the defendant is a

minor:

Because [t]he heart of the retribution rationale relates to an offender’s blameworthiness, the case for retribution is not as strong with a minor as with an

adult. Nor can deterrence do the work in this context because the same

characteristics that render juveniles less culpable than adults

— their immaturity, recklessness, and impetuosity

— make them less likely to consider potential punishment. [ Miller , 567 US at 472 (quotation marks and citations omitted).]

In the instant case, we face the question whether , and if so how, Miller applies to the sentencing of a minor for first degree murder when the prosecution does not seek a sentence of life without parole. Defendant argues that the Miller standards should govern his sentencing even when the prosecution do es not seek a life

- without

- parole sentence and therefore, that the trial court erred by considering causes that Miller holds should not be considered, and by failing to consider the

factors that Miller articulated. Defendant does not indicate whether he c ontends that Garay should be applied to such cases; thereby, focusing on the Miller factors to the exclusion of other

1 Miller uses the term “juvenile” to apply to all defendants who were under 18 at the time of their offense. We use the term “minor” in this opinion in order to make clear that the relevant age is

18.

2 Roper v Simmons , 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005).

3 Graham v Florida , 560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010).- 3

- considerations such as punishment and protection. At a minimum, however, defendant argues that the trial court’s overriding concern shoul d be the factors defined in Miller

.

The prosecution responds that the holding in Miller was a narrow one, i.e., a term of life without parole may not automatically be imposed on a minor and that for such a sentence to be imposed, the sentencing judge mus t undertake the specific inquiry defined in Miller . We agree with the prosecution that the constitutional holding in Miller applied only in life

- without

- parole decisions, and does not constitutionally compel a sentencing judge to consider only the factors

defined in Miller when the sentence of life

- without

- parole is not sought by the prosecution per

MCL 769.25a.

We disagree with the prosecution, however, to the degree that it argues that because

Miller’s constitutional holding is limited, the Supreme Cou rt’s opinion has no application to these sentencing decisions. The prosecution offers no legal or precedential support to conclude that the attributes of youth, such as those described in Miller , should be considered only when

the sentence of life without parole is sought. 4

The range of potential minimum terms under MCL 769.25a is very substantial, from 25 years to 40 years. There are no sentencing guidelines to guide a trial court’s exercise of discretion within that very substantial range. 5 A defendan t sentenced to the lesser of these possible terms chosen will allow a 17 year old to seek parole consideration when he is 42 years old; the latter minimum sentence prevents parole consideration until 57. And since release at a first parole date is by no m eans assured, and inmate life expectancy is statistically low, 6 the latter sentence virtually assures that the defendant will not be released until he is geriatric, while the former sentence would allow a defendant to be released at an age when reentry int o broader society is likely.

4 See State v. Null , 836 NW 2d 41, 71 (Iowa

, 2013) (“Certainly the notions that juveniles have

less

- developed judgment, that juveniles are more susceptible to peer pressure, and t hat juveniles' characters are not fully formed applies to this and any other case involving a juvenile defendant. Thus, the notions in Roper, Graham , and Miller that “children are different” and that they are categorically less culpable than adult offende rs apply as fully in this case as in any other. ”).

5 The crime of first

- degree murder is not addressed by the guidelines. We reject the argument that the minimum sentence range of 25 to 40 years represents a “guideline.” The statute’s text

contains no la nguage suggesting it is an addendum to the sentencing guidelines, and contains no mechanism to score objective factors. It is a legislatively defined minimum sentencing range, but not one that resembles the methods, purpose, or objectivity of the guidelin es.

6 “ ‘ The United States Sentencing Commission Preliminary Quarterly Data Report” (through June 30, 2012) indicates that a person held in a general prison population has a life expectancy of about 64 years. This estimate probably overstates the average life expectancy for minors committed to prison for leng thy terms.’ ” People v. Sanders

, 2016 IL App (Ist) 121732

- b, ¶ 26;

56 NE 3d 563, 571 (2016). See also, Patterson, The Dose

- Response of Time Served in Prison on Mortality: New York State, 1989

- 2003 , American Journal of Public Health, Vol 103, No. 3, p523 (March 2013), which concluded that “for each year in prison, a person could expect to lose approximately 2 years of life.”- 4

- Further, consideration of these characteristics is in harmony with Michigan’s long

established sentencing aims. The objectives generally relevant to sentencing were first articulated by the Michigan Supreme Court in People v. Snow , 386 Mich 586, 592; 194 NW2d 314 (1972), and have been often reiterated by our Courts. In Snow , the Court explained that in imposing sentence, the court should “balance” the following objectives: “(1) reformation of the offender, (2) protection o f society, (3) punishment of the offender, and (4) deterrence of others from committing like offenses

. ” Id. (citation omitted). The process of properly balancing these objectives in the case of a minor defendant necessitates consideration of the distinct ive attributes of youth. For example, consideration of what the Supreme Court described as youth’s “diminished culpability and greater prospects for reform,” Miller , 567 US at 471, relates directly

to Snow ’s consideration of reformation and the protection of society. Similarly, the Supreme Court’s reference to the “diminish[ed] ... penological justifications for imposing the harshest sentence on juvenile offenders,” Id . at 472, correlates with Snow ’s inclusion of punishment and

deterrence as relevant facto rs in a sentencing calculus. Taking the distinctive attributes of youth into account is consistent with both Michigan’s long

- stated sentencing objectives and the United States Supreme Court’s judgment that “youth matters.” 7 We conclude that a failure to consider the distinctive attributes of youth, such as those discussed in Miller , when sentencing a minor to a term of years pursuant to MCL 769.25a, so undermines a sentencing judge’s exercise of his or

her discretion as to constitute reversible error.

I n sum, we conclude that there is no constitutional mandate requiring the trial court to specifically make findings as to the Miller factors except in the context of a decision whether or not to impose life without parole. We further conclude when sentenci ng a minor convicted of first degree murder, when the sentence of life

- without

- parole is not at issue, the court should be guided by a balancing of the Snow objectives and in that context is required to take into account the attributes of youth such as tho se described in Miller.

II. FACTS AND APPLICATION OF LAW

When defendant was 17 years old, he was without a home, and began staying in a camper in the backyard of a 14

- year

- old girl named Jennifer. Another 16

- year

- old boy, Steven Launsburry, was staying in the camper. Defendant became romantically involved with Jennifer. The feelings, such as they were, were mutual and the two engaged in sexual relations. Jennifer’s mother discovered them in bed together and went to the police. Defendant was questione d by a detective and admitted to having consensual sex with Jennifer. Launsburry was also questioned

as he had also had sexual relations with Jennifer.

Launsburry and defendant concluded that they had to leave town, and Jennifer agreed to go with them. According to Jennifer, it was Launsburry’s idea that they leave town. Later that day, the two boys were at the home of a friend who observed that Launsburry appeared to be “in charge” and “calling the shots.” At some point, Launsburry showed off some b ullets that he had with him. Later, Launsburry called a friend who picked the two boys up. Launsburry asked to borrow a gun for a few minutes to have with him while he made a marijuana purchase. The friend gave Launsburry his gun, dropped the two boys o ff, and waited for them to return. They

never did.

7 Miller at 567 US at 482.- 5

- The two boys decided to steal a car parked in the neighborhood but were caught by the owner and ran off. At that point, they made a decision to hijack a car by flagging down a passing

vehicle. Launsb urry told defendant that the only way they could get away with the carjacking “is to kill him.” Defendant asked “who?” and Launsburry answered, “Whoever [is] driving.” Defendant asked, “Couldn’t we just knock the driver out?”

The next day, Launsburry and defendant attempted to flag down cars and tragically, the victim of this crime, a young woman, stopped to offer them a ride. Launsburry sat in the front seat next to the victim and defendant sat in the back. After a few minutes, Launsburry took out

t he gun, pointed it at the victim, and directed her to drive to an isolated area. After getting to that area, Launsburry told her to stop the car and get out. Launsburry also got out and directed the victim to an area out of defendant’s sight. Defendant heard two shots after which Launsburry returned to the car and told the defendant that he had killed the victim. At no time during this course of events did the defendant attempt to stop Launsburry or warn the victim.

Later that day, Launsburry and def endant picked up Jennifer, who had agreed to run away with them. They drove as far as Indiana and got a hotel room. While Launsburry was sleeping, defendant told Jennifer that Launsburry shot someone and that he was afraid that he killed her. According to Jennifer, defendant was emotionally distraught because he had failed to do anything to stop Launsburry. Jennifer told defendant that they needed to call the police, and he did so. In his phone call, he told the police about the killing, identified the ir location, and warned them that when they come, they will “need more people because the gun is under [Launsburry’s] pillow.” When the police arrived and arrested Launsburry, he denied the crime at which time defendant told the police that he could prove that it happened. He showed the police the money that Launsburry took from the victim, and took the police to where Launsburry disposed of the spent shells.

Following his arrest, defendant was charged with first degree felony murder, kidnapping,

and ar med robbery on the grounds that he aided and abetted Lansbury. He was offered a plea bargain in which he would have pleaded guilty to second degree murder, but he refused to accept it, against the advice of his attorney. He was convicted of all charges a nd sentenced as

described.

Approximately 23 years later, defendant was resentenced. At resentencing, the trial judge imposed the maximum possible term of years, i.e., a term of no less than 40 years and no more than 60 years.

The court’s reasoning was based overwhelmingly on the seriousness of the crime and the state’s interest in imposing punishment. Undoubtedly, this murder, like virtually all such crimes, was heinous, tragic, and irreversible. However, given that the Legislature has determined that the minimum term may range from 25 to 40 years, the trial court clearly had to exercise its discretion by consideration and balancing of the Snow factors. We find that the trial court did not do so. To the contrary, it concluded that defendant shoul d receive the maximum sentence the court could impose because it was defendant’s idea to leave town that set the events in motion, and that he participated in a carjacking with Launsburry, whom he knew was armed, and who had expressed the intent to kill th e victim. The court concluded, “No matter how one slices the rest of the case, it still comes down to those inexorable facts.”- 6

- The trial court did not discuss whether defendant remained a threat to the safety of society, whether he was capable of refor m, or whether sentencing defendant to 40 years, rather than a lesser minimum term, would be likely to have a significantly different deterrent effect. The court did briefly reference facts relevant to culpability. First, it stated that “Stephen

Launsburr y, his co

- defendant, [is the one] who actually pulled the trigger and is the one directly and personally . . . responsible for the death of [the victim].” The court also noted:

I agree in part with [defense counsel], certainly the defendant, whatever his chronological age, was psychologically, for lack of a more clinical term, immature. I don’t think his thought process was particularly cogent and rational, and in addition to whatever psychological issues he may have had, probably

reflects a substandard education and a poorly developed process for logical analysis.

It is difficult to see, however, where or how the trial court factored these factors into his decision when imposing the maximum term he had the authority to impose. Further, the court made no reference to the fact that the day after the crime, defendant called the police, assisted them in locating Launsburry, and confessed to his role in the crimes. Even if the defendant was an adult, such actions would be relevant to his culpability and reha bilitative potential. 8

Lastly, we note that because defendant has been incarcerated for over 20 years, there was information available to evaluate defendant’s rehabilitation, and not merely his potential for rehabilitation. Consideration of defendant’s post

- sentencing conduct a nd state of mind is also consistent with the rule that at resentencing, a trial court may consider the defendant’s conduct since his original sentencing. See People v Triplett , 407 Mich 510, 515

- 516; 287 NW2d 165 (1980).

The sentencing court had before i t defendant’s 20

- year

- old presentence report supplemented with a list of defendant’s prison misconducts, some samples of undated positive and negative reviews of defendant’s work performance, a list of classes he had taken, and a

reference to the fact that he had at one time been a member of a prison gang but that he renounced his membership in 2004. 9 The judge was also provided with a 1986 psychological evaluation of defendant at age 10, and the 1994 psychological evaluation performed upon entry

8 The minimum term imposed does not defin e defendant’s release date. The minimum term imposed by the sentencing judge is the first, not the last, barrier a prisoner faces before release from prison, let alone release from supervision. The minimum term merely sets the date at which defendant may , for the first time, be considered for parole by the parole board.

9 De fendant entered p rison having left school in the 9 th grade. During his incarceration he has completed a GED and obtained multiple certif ications in various programs. His updated

pr esentence report reveals that from 1994, when he was first incarcerated, through 2003, defendant had several misconducts for angry verbal behavior and several for fighting wit h other prisoners. From 2004 to 2011

, he had no misconducts for an ger or fightin g. During that 7

- year period

, he had a total of seven misconducts the two most serious of which was stealing 5 “post

it” note pads and stealing a mop head. From the end of 2011 to the time of resentencing in 2016

, he had no misconducts whatsoever.- 7

- into the custody of the Department of Corrections (DOC). Other than to note that he reviewed these materials, the court made no reference to any of its content. 10

III. DEFENDANT’S SENTENCES FOR KIDNAPPING AND ARMED ROBBERY

At his original sentencing, defendant re ceived sentences of life with the possibility of parole on his convictions of armed robbery and kidnapping. Defendant argues that the trial court erred by refusing to resentence him on these convictions because they now constitute his longest

sentences, a nd was imposed without the preparation or consideration of a sentencing guideline calculation. Defendant’s argument that he should be resentenced on those charges does have merit in light of the requirements of MCL 771.14(2)(e)(ii) which provides in relev ant part:

(2) A presentence investigation report prepared under subsection (1) shall include all of the following:

* * *

(e) For a person to be sentenced under the sentencing guidelines set forth in chapter XVII, all of the following:

* * *

10 According to the 1986 report, defendant was referred to a clinical psychologist at age 10 “in order to determine the possibility of a psychotic depression, possibility of hallucinations, [and] reason for excessive anxiety.” The psychological report recou nted that defendant’s mother had a history of drug abuse since age 13 and so, at age 6, defendant was sent to live with his maternal grandmother. The child did not know the whereabouts of his father and feared he might be dead.

He was sent for evaluation after “a very severe anxiety attack with an apparent hallucination of his father in a coffin.” On IQ testing, he showed “deficits [which] would appear to be most likely the result of some organic or neuropsychological deficit.” The examiner noted that “ the child was evidently subject to some abuse and neglect as a young child and there is a probability that both parents were abusing drugs during his conception and prenatal life.” He found that defendant’s anxiety interfered with his reasoning and that h is way of dealing with problems was to try to avoid conflict. His diagnoses were major depression, attention deficit disorder without hyperactivity and “developmental disorder characterized by academic retardation.” The DOC psychological evaluation was c onducted in 1994. It revealed that defendant

returned to hi s mother’s custody at age 14. The examiner noted that defendant likely had a learning difficulty but did not conduct the relevant testing. The personality testin g indicated he was the type of “i ndividual who usually expresses his anger in indirect ways . . . and transfer

blame onto others. ” Such men, it noted, “are generally controlled, ” but “may exhibit occasional periods of impulsivity or aggressiveness.” The testing indicated that defendant experienced “a great deal of anxiety when given an unstructured task.” The PSIR noted that “prior to the instant offense, the defendant had no history of violent or assaultive behavior.” He had been convicted of shoplifting on one occasion.- 8

- (ii) Unless otherwise provided in subparagraph ( i ), for each crime having the highest crime class, the sentence grid in part 6 of chapter XVII that contains the recommended minimum sentence range.

However, the scope of the trial court’s action and of our review is controlled by the order of the Michigan Supreme Court. In that order, the Court vacated “the sentence of the Kent

Circuit Court on the defendant’s first

- degree murder conviction,” and rem anded the case to the trial court “for resentencing on that conviction pursuant to MCL 769.25 and MCL 769.25a.” Neither the remand order nor the referenced statutes provide for resentencing on his other convictions and so the trial court properly conclude d that it had no authority to resentence on those grounds.

Accordingly, we hold that defendant is not entitled to resentencing on those charges in this appeal.

III. CONCLUSION

We vacate defendant’s sentence and remand for resentencing consistent with this opinion. We affirm the trial court’s denial of defendant’s request for resentencing on his kidnapping and armed robbery convictions. We retain jurisdiction.

/s/ Jane E. M arkey /s/ Douglas B. Shapiro

/s/ Michael F. Gadola

### Court of Appeals, State of Michigan

**ORDER**

People of MI v Gregory Wines

Docket No. 336550

LC No. 93

- 064278 FC Jane E. Markey Presiding Judge

Douglas B. Shapiro

Michael F. Gadola

Judges

Pursuant to the opinion issued concurrently with this order, this case is REMAN DED for further proceedings consistent with the opinion of this Court. We retain jurisdiction.

Proceedings on remand in this matter shall commence within 56 days of the Clerk’s

cert ification of this order, and they shall be given priority on remand until they are concluded. As stated in the accompanying opinion, the trial court shall resentence defendant for the conviction of first degree felony murder

. The proceedings on remand are limited to this issue

.

The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.

The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings.

/s/ Jane E. Markey

March 8, 2018