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

revision until final publication in the Michigan Appeals Reports.

-1-

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UNPUBLISHED

September 2, 2021

v No. 353247

Berrien Circuit Court

TOMMY EDWARD RICHARDS, LC No. 1987-001623-FH

Defendant-Appellant.

Before: RONAYNE KRAUSE, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

In 1987, a jury convicted defendant of first-degree felony murder, MCL 750.316. 

Defendant was a 17-year-old juvenile at the time of the charged offense. After defendant was 

convicted, the trial court sentenced him to mandatory life imprisonment without the possibility of 

parole. In February 2020, following a hearing pursuant to Miller v Alabama, 567 US 460; 132 S 

Ct 2455; 183 L Ed 2d 407 (2012), and MCL 769.25a, the trial court resentenced defendant and 

again imposed life without parole. Defendant appeals that sentence as of right. We affirm.

I. BACKGROUND

On April 20, 1987, the victim, 10 years old, lived in Benton Harbor, Michigan. That day, 

along with her five siblings, the victim went to a neighbor’s house to play. A neighbor watched 

the children as they played outside. The neighbor testified that she saw defendant, who also lived 

on the street, interacting with the children. The neighbor testified that, at one point, it looked like 

defendant was “trying to shake [the victim’s] hand.” A witness heard defendant state to the victim, 

“I’m going to get something under [your] dress.” The victim told defendant “no.” Defendant then 

asked someone to bring him a plastic bag. Someone did, and defendant placed it under his coat. 

Defendant picked up a plastic truck that the victim’s brother was playing with. He then took the 

truck with him as he went behind his house. Several boys and the victim followed defendant. The 

boys eventually came back; the victim did not. Loud “booms” were heard coming from inside 

defendant’s house.

In defendant’s appeal from his convictions, this Court stated:
-2-

The victim was last seen alive during the evening of April 20, 1987. On 

May 4, 1987, a searcher discovered the victim’s body wrapped inside a number of 

plastic garbage bags on a vacant lot near the location where she had last been seen. 

Although fully clothed, the victim’s leotards and panties had been torn across the 

front from leg to leg. The pathologist determined that the victim had vomited while 

still alive and that the probable cause of death was suffocation resulting from the 

victim breathing in regurgitated food particles. There was also a bruise and tear in 

the vaginal opening and the victim’s three front teeth had been knocked loose. 

[People v Richards (Richards I), unpublished per curiam opinion of the Court of 

Appeals, Docket No. 105763, decided June 12, 1990, unpub op at p 1.]

The pathologist also opined that the victim had been sexually assaulted. The pathologist stated 

that the victim’s vomiting could have been caused by blows to her stomach, restraint to her

abdomen, or suffocation.

This Court further stated:

The circumstances surrounding the victim’s death and disappearance were 

disputed. Two weeks after the body was found, the police contacted defendant who 

had been seen with the victim near the time of her disappearance. Defendant agreed 

to be questioned by the police and was advised of his “Miranda” rights. Officer 

Ruhl testified that defendant originally denied having any knowledge concerning 

the victim’s death, but then changed his story after being confronted with various 

inconsistencies in his statements. Ruhl said the defendant then told him that he had 

had oral sex with the victim outside his house, left and went inside for a couple of 

minutes, and then returned to discover the victim’s body lying on the ground 

unconscious. Next, Ruhl said defendant told him that he panicked, put the victim’s 

body in several garbage bags, and then placed the body in the vacant lot down the 

street. Defendant’s statements were obtained on both videotape and in his own 

writing.

Following the defendant’s statements, a search warrant was obtained which 

led to the discovery of one of the victim’s shoes in the basement of defendant’s 

home. When confronted with this information, Officer Ruhl testified that defendant 

originally denied any knowledge of the shoe, but later said he had discovered it the 

next day and had brought it in the house intending to burn it. At this time, Ruhl 

said defendant also admitted to having had intercourse with the victim prior to the 

oral sex. These later statements were obtained on audio tape. The videotape, 

audiotape and written statement were all presented to the jury.

When defendant testified, he admitted giving the incriminating statements 

to the police, but claimed they were untrue. Defendant said the statements were 

based on information fed to him by the police, and that he said them because, based 

upon comments by Officer Ruhl, he was led to believe he could go home if he told 

the police what they wanted to hear.
-3-

At trial, defendant testified that he had seen the victim performing what 

appeared to be oral sex on [RL] in a nearby alley three days before the day she 

disappeared. [RL] was the father of two other children of the victim’s mother. 

Although defendant denied having had sex with the victim he said the victim did 

agree to have sex with his thirteen-year-old[

1

] cousin after his cousin threatened to 

tell the victim’s mother about the alleged incident with [RL]. According to the 

cousin, the two of them went down to the basement, but did not actually have any 

sex because the victim’s brothers and sisters came to the door looking for her. The 

cousin said the victim then ran upstairs, leaving one of her shoes behind, and that 

he left a few minutes later. According to the defendant, the victim then came back 

shortly thereafter with [RL], who demanded to know why she had been over there. 

Defendant said he told [RL] the victim had been with his cousin and that [RL] then 

hollered at the victim before finally leaving with some garbage bags in his hand. 

Defendant denied killing the victim. [Richards I, unpub op at pp 2-3.]

After a six-day trial, a jury acquitted defendant of first-degree premeditated murder, but it

convicted defendant of second-degree murder and first-degree felony murder. The trial court 

sentenced defendant to a single term of mandatory life imprisonment without parole. On appeal, 

this Court affirmed. Richards I, unpub op at p 5. Defendant was 17 years old on the day the victim 

was last seen alive.

Then, in 2012, the United States Supreme Court held that sentencing juveniles to 

mandatory life without parole violates the Eighth Amendment’s prohibition against cruel and 

unusual punishment. Miller, 567 US at 479. The Court held that a juvenile convicted of a 

homicide offense could not be sentenced to life without parole unless the sentencing court 

“follow[ed] a certain process—considering an offender’s youth and attendant characteristics—

before imposing a particular penalty.” Id. at 483. Then, in 2016, in Montgomery v Louisiana, 577 

US 190, 206-212; 136 S Ct 718; 193 L Ed 2d 599 (2016), the Supreme Court held that Miller was 

retroactive. The Court explained that prisoners sentenced to mandatory life imprisonment for 

crimes committed as juveniles “must be given the opportunity to show that their crime did not 

reflect irreparable corruption.” Id. at 213. Accordingly, defendant was entitled to a new 

sentencing hearing. See id.; see also MCL 769.25a; MCL 769.25; People v Bennett, ___Mich App 

___, ___; ___ NW2d___ (2021) (Docket No. 350649); slip op at 2.

The prosecution moved to again sentence defendant to life without parole. Defendant 

opposed the motion and filed several other motions, including a motion to deny a sentence of life 

without parole as categorically barred under the Eighth Amendment. After a three-day Miller

hearing, the trial court entered an opinion and order thoroughly discussing the evidence and 

making the following findings:

An in depth review and consideration of the Miller case and the factors set 

forth therein pertaining to circumstances unique to juveniles must be considered 

prior to a court determining whether or not to grant a motion to sentence a convicted 

juvenile Defendant to life without parole. The expanse of evidence presented by 

 

1

It appears from our review of the transcripts that the cousin was actually fourteen years old.
-4-

the parties herein is extensive. A review of the entirety thereof was undertaken 

with purpose and solemnity.

The decision making process was far from linear in nature, requiring 

multiple readings, re-examination of detailed documentation and continued critical 

examination throughout the course of contemplation. The US Supreme Court saw 

fit not to weight the factors delineated in Miller but rather left the determination to 

the reviewing court to consider and apply them to the fact specific circumstances 

in the case before it. Miller falls short of barring any specific penalty for an 

offender class or crime type, but instead mandates the process the reviewing court 

is to follow prior to sentencing.

Dr [Michael] Caldwell[

2

], through testimony and exhibits set forth 

compelling information detailing the efficacy of brain science and research 

deducing the developing juvenile mind differs from that of an adult in areas of 

decision making, behavior and functioning.

During much of his youth, Defendant endured a home environment 

surrounded by a community of violence. Nevertheless, Defendant formed deep and 

lasting family bonds. He resisted the pressure of gangs and youthful temptations 

of drugs and alcohol, and secured and maintained employment until Defendant 

made the reasoned and thoughtful decision to remove himself from his undesirable 

environment and live with his aunt and her family in Michigan. These attachments 

and behavior indicate Defendant’s more established sense of reason and a degree 

of self-disciple [sic] as opposed to recklessness or a reduced capacity to mediate 

his behavior due to social and family exposure.

[The victim] was an innocent child, who at the tender age of 10 was 

undeserving of the brutal sexual assault, which at the hands of Defendant she was 

made to suffer, directly causing her death. Defendant acted alone in the planning 

and execution of this violent sexual crime. The record is void of assertion or 

inference that he was motivated by his family, trying to impress friends, gain entry 

into a gang by rites of initiation or following the lead of any other juvenile or adult. 

Defendant did not succumb to pressure. Supporting the conclusion his actions were 

neither impetuous nor rash is the evidence Defendant calculated this offense after 

observing [the victim] and luring the 10 year old girl to a greater place of 

vulnerability to accomplish this assault. Careful review of the trial transcript 

supports the determination that the forceful sexual assault of [the] young [victim] 

was not a crime of random opportunity or chance but rather of premeditation and 

the execution of a deliberate design.

The excessive force and brutality executed by Defendant upon [the victim] 

is evidenced by the physical tear to her vagina which could not be replicated by the 

male pathologist applying brute force in his attempt. Further confirmation of 

 

2 Dr. Caldwell was qualified as an expert regarding psychology and adolescent brain development.
-5-

defendant’s actions to be formed and intentional as opposed to impulsive or hastily 

made lies in the assault itself. Unlike the quick pull of a trigger or swift thrust of a 

knife, Defendant committed three separate and distinct acts of sexually assaultive 

force upon his victim. These individual assaults were not without intermission. 

After Defendant’s vigorous vaginal assault on [the victim], rather than discontinue 

his attack, he orally assaulted her causing her to gag and vomit. Knowing full well 

the outcome of this act of violence against [the victim], defendant refused to end 

his attack. Instead, allowing time for her to finish regurgitating, Defendant once 

again forced and held his penis in her mouth, against his groin until she again 

vomited, suffocating to death. Experienced in summoning police help for himself 

and his sister, Defendant chose not to do so for [the victim]. Further evidencing a 

degree of sophistication at the time he committed this offense was Defendant’s 

decisiveness in tightly wrapping [the victim]’s face, knotting and securing the 

plastic garbage bag, subsequently discarding her remains at a trash dumping site.

Defendant’s graduated confessions support a finding that he was not a 

novice in dealing with law enforcement. His handwritten confession was prepared 

privately without police oversight. Thereafter, Defendant, on his own, initiated 

further police contact, providing additional details of the offense. No evidence was 

introduced to suggest any incompetencies of youth were responsible for 

Defendant’s confession to his aunt, subsequently, recanted the following day. 

Ultimately, Defendant testified in his own defense at trial.

While incarcerated Defendant has obtained a GED, completing programs 

and receiving promotions through MDOC employment. Within the structured 

setting of prison confinement his progress, as noted in MDOC records and risk 

assessments, led Mr. [Richard] Stapleton[

3

] to conclude Defendant would be 

favorably considered for parole and Dr. Caldwell to opine Defendant has developed 

a more positive character and would not criminally reoffend.

In contrast to Mr. Stapleton’s opinion and Dr. Caldwell’s report is the 

MDOC COMPAS Narrative Assessment Summary supporting a finding 

Defendant’s capacity to change is suspect, noting Defendant’s probable attitude 

problems, including moral justification for his criminal behavior, refusal to accept 

responsibility and victim blaming. While Dr. Caldwell espoused Defendant’s full 

acceptance of responsibility and expression of remorse for the murder of [the 

victim], Defendant’s telephone conversation with his girlfriend[4] indicates 

otherwise as he recruited her compliance for the purpose of a successful ruling at 

 

3 Stapleton was qualified as an expert regarding policies and procedures of the Michigan 

Department of Corrections.

4 The trial court provided several excerpts from a recording of a 2016 telephone conversation 

between defendant and his girlfriend that it characterized as “challenging” the “authenticity of 

Defendant’s subsequent acceptance of responsibility and expression of remorse.” The contents of 

the conversation will be discussed in more detail below.
-6-

his Miller hearing. Any acknowledgment of responsibility or expression of remorse

for his murder of [the] 10 year old [victim] is completely lacking . . . This behavior 

undermines the authenticity of Defendant’s more recent expressions of remorse and 

accountability.

Demonstrating Defendant’s present lack of aversion to risk taking behavior 

is his misconduct ticket for prohibited sexual contact with a female visitor occurring 

in March of 2019, only months before the inception of these proceedings. With full 

appreciation of the importance and consequences of a Miller hearing, Defendant 

made the fully informed choice to engage in risky sexual conduct realizing this 

major violation of prison rules, upon discovery, would result in a misconduct ticket 

that would ultimately be reviewed by the court in contemplation of its final 

sentencing decision. Although not criminal in nature, this intentional behavior by 

Defendant at age 49 supports the finding that any propensity Defendant may have 

had for risk taking and impetuosity were not merely temporal, transient behaviors 

attributable to youth.

The trial court therefore granted the prosecution’s motion, sentencing defendant to life without 

parole. Defendant now appeals that sentence.

II. LIFE-WITHOUT-PAROLE SENTENCE

Defendant argues that the trial erred in its consideration of the Miller factors and abused 

its discretion by resentencing him to life imprisonment without parole. We disagree.

A. STANDARD OF REVIEW AND APPLICABLE LAW

This Court reviews for an abuse of direction a trial court’s decision to impose a sentence 

of life without parole. People v Skinner, 502 Mich 89, 137; 917 NW2d 292 (2018). A sentencing 

court abuses its discretion when it chooses an outcome outside the range of reasonable and 

principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). “Because 

of the trial court’s familiarity with the facts and its experience in sentencing, the trial court is better 

situated than the appellate court to determine whether a life-without-parole sentence is warranted 

in a particular case.” Skinner, 502 Mich at 134 (quotation marks and citation omitted).

As discussed earlier, in 2012, the United States Supreme Court held that sentencing a 

juvenile to mandatory life without parole violates the Eighth Amendment’s protection against cruel 

and unusual punishment. Miller, 560 US at 479. A few years later, the Supreme Court made 

Miller retroactive. Montgomery, 577 US at 206-213. The Montgomery Court explained that “[t]he 

opportunity for release will be afforded to those who demonstrate the truth of Miller’s central 

intuition—that children who commit even heinous crimes are capable of change.” Id. at 212. 

“Although Miller did not foreclose a sentencer’s ability to impose life without parole on a juvenile, 

the Court explained that a lifetime in prison is a disproportionate sentence for all but the rarest of 

children, those whose crimes reflect ‘irreparable corruption.’ ” Id. at 195 (quotation marks and 

citation omitted).

Recently, this Court explained that our Legislature codified procedures to handle Miller

cases as follows:
-7-

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. MCL 769.25a. In such cases, the resentencing court must 

select either life without parole or a term-of-years sentence. MCL 769.25a(2). 

Prosecutors seeking imposition of a life-without-parole sentence are obligated to 

file a motion specifying the grounds for imposing that punishment. 

MCL 769.25a(4)(b). 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.” MCL 769.25(6). 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.” MCL 769.25(7). 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.” 

MCL 769.25(9). . . .

At a resentencing hearing, MCL 769.25 requires that the judge take into 

account the “hallmark features” of youth, known as the Miller factors. The Miller

factors developed from the Eighth Amendment proportionality principles described 

by the United States Supreme Court in other decisions involving juvenile 

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

and Graham v Florida, 560 US 48, 68; 130 S Ct 2011; 176 L Ed 2d 825 (2010). 

The Court observed in Graham and repeated in Miller that “[t]he concept of 

proportionality is central to the Eighth Amendment.” Graham, 500 U.S. at 59; 

Miller, 567 US at 469. That concept, the Court emphasized in Miller, must be 

viewed in a manner that gives meaning to “the evolving standards of decency that 

mark the progress of a maturing society.” Miller, 567 U.S. at 469 (quotation marks 

and citations omitted). [Bennett, ___ Mich App at ___; slip op at 2.]

In Skinner, 502 Mich at 114-115, our Supreme Court summarized the Miller factors, as 

follows:

(1) his chronological age and its hallmark features—among them, immaturity, 

impetuosity, and failure to appreciate risks and consequences; (2) the family and 

home environment that surrounds him—and from which he cannot usually extricate 

himself—no matter how brutal or dysfunctional; (3) the circumstances of the 

homicide offense, including the extent of his participation in the conduct and the 

way familial and peer pressures may have affected him; (4) whether he might have 

been charged [with] and convicted of a lesser offense if not for incompetencies 

associated with youth—for example, his inability to deal with police officers or 

prosecutors (including on a plea agreement) or his incapacity to assist his own 

attorneys; and (5) the possibility of rehabilitation. [Quotation marks and citation 

omitted.]

However, the United States Supreme Court also recently clarified:
-8-

In short, Miller followed the Court’s many death penalty cases and required that a 

sentencer consider youth as a mitigating factor when deciding whether to impose a 

life-without-parole sentence. Miller did not require the sentencer to make a 

separate finding of permanent incorrigibility before imposing such a sentence. And 

Montgomery did not purport to add to Miller’s requirements. [Jones v Mississippi, 

___US___; 141 S Ct 1307, 1316; 209 L Ed 2d 390 (2021) (footnote omitted).]

B. HALLMARK FEATURES OF AGE AND HOME ENVIRONMENT

The first two Miller factors are consideration of the “hallmark features” of defendant’s age 

at the time he committed the offense, and defendant’s family and home environment. Defendant 

was 17 years old when he committed the offense. Therefore, he was (and until October 1, 2021, 

still is) considered to have been an adult for purposes of criminal prosecution and criminal 

responsibility. See 2019 PA 98, 2019 PA 99, 2019 PA 100, 2019 PA 101, 2019 PA 102, 2019 PA 

103, 2019 PA 104, 2019 PA 105, 2019 PA 106, 2019 PA 107, 2019 PA 108, 2019 PA 109, 2019 

PA 110, 2019 PA 113, 2019 PA 114. The record supports the trial court’s findings that defendant 

refrained from drugs, alcohol, and gangs. It reflects that defendant maintained jobs when he lived 

in Chicago. And it reflects that his aunt described him as helpful, obedient, and seemingly 

responsible when he lived in Benton Harbor. The trial testimony also includes evidence that 

defendant premeditated his sexual assault on the victim when he formulated the scheme with his 

cousin, asked for a plastic bag, and walked off with the victim’s brother’s truck. 

The trial court recognized that defendant was exposed to crime, violence, and abuse during 

his formative years, which would undoubtedly have harmed his ability to interact normally with 

the world around him. Notwithstanding those negative experiences, defendant displayed a “sense 

of family loyalty and duty,” continued to maintain a good relationship with his sister, and on one 

occasion while in Chicago displayed “both the presence of mind and sense of responsibility to 

warn his younger sister that someone was breaking into the residence, place a mattress over her 

head and phone the police for assistance.” Defendant recognized his need for a better environment 

and moved to Michigan because he “wanted a fresh start.” The trial court also expressly considered 

scientific evidence from Dr. Caldwell regarding juvenile brains’ diminished ability to resist social 

influences or understand maladaptive environments. It nevertheless also observed that Dr. 

Caldwell admitted that defendant “was never in a position where he simply was unable to control 

his behavior at all,” and defendant also admitted that his “assault was not a result of an 

uncontrollable compulsion.” Furthermore, “neither Defendant’s father nor any of his siblings have 

ever been arrested for a criminal offense.”

The trial court clearly did not ignore the evidence of abuse and dysfunction in defendant’s 

mother’s home. It is readily apparent that the trial court carefully considered the evidence and 

recited key facts and conclusions offered by witnesses as it explained its decision at sentencing. 

As the prosecution points out, Miller only commands that a sentencer follow a certain process, not 

that they accept a defendant’s presentation. Miller, 567 US at 479-480. Miller does not suggest 

that the trial court cannot, as it did, consider the full picture of defendant’s youth: he held jobs, his 

aunt described him well, and he was able to resist some large negative elements (drugs, alcohol, 

and gangs). The fact that defendant disagrees with the trial court’s determination that these details 

show sophistication and not rash actions of an impetuous juvenile do not mean that the trial court’s 
-9-

determination was outside of the bounds of reasonable and principled outcomes. The trial court 

did not abuse its discretion when it found these factors not to mitigate against a life sentence.

C. CIRCUMSTANCES OF THE OFFENSE

The third Miller factor is the circumstances of the offense. Although the trial court’s 

description of defendant’s perpetration of the sexual assault and killing of the victim was arguably 

presented in a somewhat colorful manner, defendant expressly agrees that the circumstances of the 

offense were “indisputably heinous.” Indeed, no other conclusion is conceivable. Defendant 

argues, however, that the trial court improperly concluded that defendant acted with 

“premeditation.” He points out, accurately, that he was acquitted of first-degree premeditated 

murder. Although the trial court specifically stated at one point that defendant’s “attack” was 

premeditated and deliberate, it is unambiguous from context that the trial court was referring to 

the sexual assault rather than the murder. Defendant argues that the sexual assault was not 

premeditated, but rather was a product of emotional arousal that would have impaired his ability 

to engage in judgment and impulse control, and further that he was influenced in some way by his 

younger cousin. We disagree.

Initially, the cousin’s role in the events of April 20, 1987, is not entirely clear, especially 

given the numerous shifts in defendant’s own versions of what occurred. More importantly, 

defendant relies heavily on Dr. Caldwell’s testimony about the cousin’s possible influence, but in 

so doing, defendant overstates Dr. Caldwell’s conclusion. Dr. Caldwell testified that the cousin’s 

influence “would have potentially played some role” in defendant’s actions and that he “wouldn’t 

rule it out entirely.” Even in defendant’s renditions, his cousin never encouraged him to commit 

his crime: pressuring the victim into sex was defendant’s idea. Therefore, the trial court’s 

statement that “[e]vidence of pressure from or persuasion by family and friends is not existent” is 

a reasonable outcome and principled determination. Third, the trial court’s reliance on defendant’s 

“premeditation,” as it called it, is supported by the record. The trial court never suggested that 

defendant planned to kill the victim; instead, it found that defendant planned his sexual assault on 

the victim by watching her for an extended period of time, isolating her from the safety of her 

siblings, and luring her into his house. The trial court’s conclusion is supported by the trial 

testimony, and in particular defendant never accounts for the victim’s brother’s toy truck and how 

he used it to lure the victim into his house. The trial court did not abuse its discretion on this factor.

D. INCOMPETENCIES OF YOUTH

The fourth Miller factor is “incompetencies of youth,” which, in contrast to the first factor, 

refers more particularly to whether a juvenile might have brought harsher charges upon him- or 

herself due to an inability to effectively communicate with, interact with, or otherwise handle 

police officers, prosecutors, or defense counsel. The trial court recognized that defendant’s trial 

counsel thought defendant to be “immature and not particularly sophisticated,” and that defendant 

had not been “very helpful in formulating a defense” as a result. The trial court noted that 

defendant had been found competent to stand trial by a forensic examiner, which defendant 

reasonably points out is a low bar to overcome. Nevertheless, the trial court did not appear to 

weigh that finding heavily. Rather, the trial court appears to have relied primarily on the fact that 

defendant had nine prior arrests, one of them serious, and he had been twice placed on probation 

for different offenses. It found defendant’s experiences therefore gave him some familiarity with 
-10-

both criminal procedure and the consequences of criminal conduct. The trial court’s finding is 

supported by the evidence and is not unprincipled.

Defendant argues that his experience with juvenile proceedings did not give him 

experience with adult criminal proceedings. Defendant misses the essential point that his age had 

not shielded him from any familiarity with police and court processes. The facts that he agreed to 

take a polygraph, agreed to talk to the police, and seemingly failed to truly appreciate the 

consequences of his prior crimes because he kept committing them have little to do with his youth, 

given how many adults routinely waive their rights or reoffend. The issue is not whether defendant 

was particularly sophisticated or unsophisticated in the abstract, but rather the likelihood that he 

would have been charged or convicted of a lesser offense because of a lack of sophistication 

specifically due to his youth. We find no error by the trial court regarding this factor.

E. POSSIBILITY OF REHABILITATION

The final Miller factor is defendant’s capacity for rehabilitation. We find that the trial court 

did not err in its evaluation of this factor.

The trial court recognized that defendant had obtained a GED, performed work 

assignments, received promotions and positive reviews, and been described by Dr. Caldwell as 

cooperative and nonviolent. It recognized that out of defendant’s 29 major misconduct tickets, 

only three occurred within the last 15 years. However, it expressed concern that one of those major 

misconduct tickets, which was nonviolent but constituted “class one” sexual misconduct, had 

occurred only 6 months before his Miller hearing. Moreover, defendant knew that he was openly 

defying prison rules, and he did so in full view of prison guards and security cameras. The trial 

court reasonably found that this major misconduct undermined defendant’s testimony that he did 

not “do stupid things anymore” and “follow[ed] the rules.” It also noted that when the misconduct 

was brought to his attention, he “chose initially to rationalize and excuse his behavior.” The trial 

court was appropriately concerned that defendant engaged in misconduct despite knowing he 

needed to be on his best behavior.

Of further concern was a telephone call made by defendant to his girlfriend on October 25,

2016.

5

 As the trial court fairly summarized, much of the conversation entailed defendant 

explaining to his girlfriend that he had to “push all the right buttons and pull all the right levers,” 

largely referring to “what they want to hear.” The girlfriend opined that “[i]t seems like a scam to 

me,” expressed concern about people being “wise enough to see when they getting played,” and 

strongly suggested that defendant had for at least eight years represented to her that he did not 

actually commit the crime for which he was incarcerated. Defendant did not correct the girlfriend, 

saying instead that the matter was not about guilt or innocence, but rather about putting on a 

 

5 The girlfriend was apparently the same person involved in the 2019 misconduct incident. The 

telephone call was played for the trial court, and the trial court quoted extensive excerpts from the 

call in its opinion and order, but we cannot find any transcript of the entire call in the lower court 

record or provided to us on appeal. In any event, although defendant generally argues that the trial 

court cherry-picked evidence, he does not challenge the fairness or representativeness of the trial 

court’s excerpts from the telephone conversation.
-11-

presentation of seeming to accept responsibility and showing remorse. The trial court recognized 

that Dr. Caldwell was unwilling to accept that defendant was lying and merely trying to engineer 

his release from incarceration, but had nevertheless admitted that it was “possible.” The trial court 

clearly, and appropriately, concluded that defendant’s own conduct—of committing a major sexual 

misconduct violation and trying to solicit his girlfriend’s assistance in carrying on a sham—was 

the most probative evidence of defendant’s true degree of rehabilitation.

Therefore, we conclude that the trial court did not abuse its discretion on this factor.

F. CONCLUSION

Defendant argues, in effect, that the trial court should have accepted Dr. Caldwell’s and 

Stapleton’s assessments of defendant, and that the trial court unfairly cherry-picked evidence. We

disagree. The trial court properly and thoughtfully assessed the entirety of the evidence, and it 

identified numerous concerns that undermined the glowing reviews from Dr. Caldwell and 

Stapleton. It was entirely appropriate for the trial court to consider whether defendant’s purported 

reformation was a sham, or would collapse when he was no longer in a highly-controlled 

environment. For the reasons discussed, the trial court did not abuse its discretion when, after 

considering evidence on the potentially mitigating Miller factors and articulating its reasoning on 

the record, it again imposed a sentence of life without parole. The trial court’s determination is 

within the range of reasonable and principled outcomes, and the sentences do not violate the 

principle of proportionality. Skinner, 502 Mich at 131-132.6

III. CRUEL AND UNUSUAL PUNISHMENT

Defendant also argues that life without parole for juvenile offenders is categorically barred 

by the federal and state constitutions because such a sentence constitutes cruel and unusual 

punishment. In the alternative, defendant presents an as-applied constitutional challenge to his 

sentence under the same theory. Although we recognize defendant’s arguments, we are bound by 

People v Carp, 496 Mich 440, 518, 520-521; 852 NW2d 801 (2014), in which our Supreme Court 

rejected these arguments. See People v Beasley, 239 Mich App 548, 556; 609 NW2d 581 (2000).

Affirmed.

/s/ Amy Ronayne Krause 

/s/ Jane M. Beckering 

/s/ Mark T. Boonstra 

 

6 Because we affirm defendant’s sentence, we need not consider defendant’s argument that a 

different judge must be assigned at resentencing.