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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- Appellee, UNPUBLISHED December 4, 2018

v No. 325741

Genesee Circuit Court KENYA ALI HYATT, LC No. 13

- 032654

- FC

Defendant

- Appellant.

Before: C AVANAGH

, P .J., and J ANSEN and K. F. K ELLY , JJ.

ON REMAND

P ER C URIAM

.

This matter returns to us following the Supreme Court ’ s decision in People v Skinner

, 502 Mich 89 , 138 ; 917 NW2d 292 (2018) , in which the Court held that “ the decision to sentence a juvenile to life without parole is to be made by a judge and that decision is to be reviewed

under the traditional abuse

- of discretion standard. ” We now affirm Hyatt ’ s life sentence.

Our previous opinion set forth the relevant facts:

On August 14, 2010, the victim, a security guard at River Village Apartments in Flint, was killed after being shot multiple times. [Floyd Gene] Perkins, [Aaron] Williams and Hyatt each gave statements to police offi cer Terence Green, and each implicated himself in the murder. The statements revealed that Perkins and his family were in danger because of a dispute Perkins

had with an individual. Perkins wanted to obtain a firearm to help him protect his family. Williams and Hyatt were Perkins ’ cousins, but were not related to one

another. The three individuals devised a plan in which Perkins could obtain a

gun. Williams lived in the apartment complex where the murder took place and knew that the security guards who worked there were armed. Williams borrowed a gun from an individual known as “ Chief. ” The idea was that Perkins, Hyatt and Williams would use the borrowed gun to rob one of the security guards of his

firearm. On the night of the shooting, Williams acted drunk and disorderly in the apartment complex ’ s parking lot in order to lure the victim out of his security car. When the victim approached Williams, Perkins and Hyatt approached from

behind. Perkins grabbed the victim and held him while Hyatt drew the gun he had- 2

- received from Williams. Both Perkins and Hyatt indicated that the victim reached for Hyatt ’ s gun and the gun discharged. After that first shot, Perkins grabbed the

victim ’ s side

- arm and ran away. Perkins heard additional shots as he was fleeing. Hyatt maintained that the first shot was accidental and that he subsequently

“ blacked out ” and could not remember what happened afterwards. [ People v

Perkins , 314 Mich App 140, 145

– 1 46; 885 NW2d 900, 907, opinion vacated (Feb. 12, 2016), supersed ed in part sub nom People v Hyatt , 316 Mich App 368; 891 NW2d 549 (2016), aff ’ d in part, rev ’ d in part sub nom. People v Skinner , 502 Mich 89; 917 NW2d 292 (2018 ).]

Perkins, Williams, and Hyatt were tried jointly before separate juries and received

vario us sentences

. Id . at 143. For purposes of this appeal:

A jury convicted [Hyatt] of first

- degree felony murder, conspiracy to commit armed robbery, armed robbery, and felony

- firearm. Because Hyatt was 17 years old when the offense occurred, the trial cou rt held a Miller 1 hearing to determine Hyatt ’ s sentence. It ultimately sentenced Hyatt to life without the possibility of parole for the murder conviction, 210 months to 40 years ’ imprisonment for each of the conspiracy to commit armed robbery and armed robbery convictions, and two years ’ imprisonment for the felony

- firearm

conviction. [ Perkins , 314 Mich App at 144 .]

On appeal to this Court , Hyatt had argued in part that “ [i] n li ght of this Court ’ s decision

in People v Skinner , 312 Mich App 15 ; 877 NW2d 482 (2015), Hyatt must be resentenced so that a jury may determine whether he should receive life in prison without the possibility of parole. ”

Perkins , 314 Mich App at 145

. In o ur previous opinion, we reviewed Hyatt ’ s sentence:

At Hyatt ’ s Miller hearing, Officer Terrence Green testified that, unlike the other defendants, Hyatt showed “ no remorse, no concern ” for what happened. Green acknowledged that the robbery was Perkins ’ idea and that the other defendants were older than Hyatt. Hyatt ’ s school records revealed assaultive

behavior and a threat to “ put a cap ” in a teacher, resulting in his suspension. A counselor had worried that Hyatt appeared to have no remorse or consci ence.

Psychologist Karen Noelle testified that Hyatt had a below average IQ. She testified that Hyatt was a “ seriously disturbed young man ” with “ serious maladjustment ” who was “ impressionable, easily led, frustrated, ” depressed, and

“ caught in a morass of

. . . conflict. ” Hyatt reported that his mother, who was a lesbian, preferred “ her women and alcohol ” over her children. In contrast,

1 Miller v Alabama , 567 US 460; 132 S Ct 2455, 2457; 183 L Ed 2d 407 (2012). Miller held that mandatory life imprisonment without the possibility of parole for those under the age of 18 at the time they committed the sentencing offense violated the prohibit ion against cruel and unusual punishment under the Eighth Amendment to the United States Constitution, US Const,

Am VIII.- 3

- Hyatt ’ s father was a “ very solid role model ” for Hyatt. But Hyatt ’ s father had been shot by intruders and was paralyz ed from the chest down. Hyatt believed his father blamed him for the incident and Hyatt also blamed himself. After his father went to a VA hospital in Texas, Hyatt lived with his mother and other family members, though he considered himself homeless.

No elle believed Hyatt had the intellectual capacity to be rehabilitated. She

was “ not sure ” whether Hyatt was capable of remorse before the incident occurred because he clearly failed to appreciate the consequences of his prior actions. Hyatt was immature and irresponsible. Noelle testified: “ I don ’ t know that he has

no sense of remorse and no conscience at all

. . . I do feel that he is not a sensitive, compassionate young man. I do feel that he ’ s pretty disconnected from societal

morals and mores. I think that ’ s concerning, yes I do. ” Noelle testified that she could not predict whether Hyatt was going to change. It would “ require extreme effort and dedication on his part. ” But she could not say that he was

“ irredeemable. ” “ [I]f I were to predict in five years, it would not be possible. ”

The sentencing court took the Miller factors into consideration at sentencing and concluded “ I don ’ t think any factor that I ’ ve considered has anything to do with his age. ” Hyatt ’ s criminal acts were not the result of

“ impetuosity or recklessness. ” After extensively reviewing the evidence before it, the sentencing court concluded that “ [i]n considering all of that and the nature of

the crime itself and the defendant ’ s level of participation as the actual shooter in this case, the principle of proportionality requires this Court to sentence him to life in the State prison without parole. [ Perkins , 314 Mich App at 178

– 1 79 .]

We noted that “ [w] ere it not for Skinner, we would affirm the sentencing court ’ s decision to

s entence Hyatt to life imprisonment without the possibility of parole. Instead, we are compelled to remand for sentencing consistent with Skinner. ” [ Id

. (footnote omitted). ] Because we are no longer constrained by this Court’s decision in Skinner , we now affirm defendant ’ s sentence.

At defendant’s original sentenc ing , t he trial court noted that Miller “requires punishment for crimes to be graduated and proportional to both the offender and the offense.” The trial court

considered Miller’s discussion regarding the possibility that a juvenile ’s immaturity, underdeveloped sense of responsibility , and background might make him vulnerable to negative influences and outside pressure. Because juvenile characters are not as well formed as adults, the trial court acknowledged its responsibility to consider any mitigating factors. To that end, the trial court considered factors such as defendant’s chronological age, character, record, background, mental and emotional development, along with the circ umstances of the offense and the extent of defendant’s participation. The trial court observed that while defendant had an unstable family background, he was over seventeen when the crime was committed. The trial court gave significant weight to the fact that the crime was “very well planned out” and not “an act of impetuosity or recklessness.” Instead, the victim was shot four time s and “defendant was the person who shot that gun.” The trial court also relied on Dr. Clark’s testimony. Ultimately

the t rial court

– after reviewing the records, presentence report, testimony, nature of the crime

, and defendant’s level of participation as the actual shooter

– concluded that defendant should be sentenced to life without parole . Again, had it not been for th is Court’s decision in Skinner, we- 4

- would have affirmed the trial court’s original sentence based on the trial court’s well

- reasoned analysis.

Affirmed.

/s/ Mark J. Cavanagh

/s/ Kathleen Jansen

/s/ Kirsten Frank Kelly