Opinion
SC: 162656 COA: 350565
11-05-2021
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Barbara P. HERNANDEZ, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the December 22, 2020 judgment of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in light of the prosecution's concessions that its decision to seek a sentence of life without parole under MCL 769.25a was improvident and that the sentencing court abused its discretion by imposing such a sentence, and in light of the defendant's withdrawal of Issue III, we VACATE the judgment of the Court of Appeals, VACATE the sentence of the Oakland Circuit Court, and REMAND this case to the trial court for resentencing to a term of years pursuant to MCL 769.25a(4)(c). In addition, on remand, the trial court shall consider the defendant's arguments regarding the validity of her armed robbery sentence and may exercise its discretion whether to resentence her for that conviction, in particular "if it finds that the sentence was based on a legal misconception that the defendant was required to serve a mandatory sentence of life without parole on the greater offense." People v. Turner , 505 Mich. 954, 936 N.W.2d 827 (2020). In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining question presented should be reviewed by this Court.
We do not retain jurisdiction.
Viviano, J. (concurring).
The Court's order vacates the lower courts’ judgments in light of two concessions from the prosecution: (1) that its own decision to seek a sentence of life without parole under MCL 769.25a was improvident and (2) that the trial court abused its discretion by imposing a sentence of life without parole. The first concession is purely a matter of prosecutorial discretion; as a result, consideration of its validity is beyond our purview. The second basis, however, is a true concession of legal error, and the Court's order does not determine whether the latter concession is legally correct. I have recently criticized the practice of resolving a case on a confession of error without determining its validity. See People v Altantawi , 507 Mich 873, 874 (2021) ( VIVIANO , J., dissenting). I write to lay out an explanation of how I will address confessions of error in future cases and to explain why I do not object to the Court accepting this confession as the basis for vacating the lower court judgment.
As I explained in my dissent in Altantawi , I believe the Court has a duty to independently evaluate and adjudicate the cases that come before it. Id. at 876. Consequently, I expressed my belief that the Court should not dispose of a case merely on the basis of a prosecutor's confession of error without some determination that the confession was meritorious. Significantly, I noted that our order there fell short of even the Supreme Court's standard for disposing of a case via "GVR" (i.e., grant certiorari, vacate the lower court decision, and remand), which requires that a confession of error be plausible—a requirement not met by the prosecution's confession in Altantawi . Id.
I continue to believe that when the prosecution confesses error, we should either reach the merits or articulate a sound legal basis for our decision instead of simply accepting the confession of error. However, I recognize that my colleagues do not appear inclined to endorse this approach. Because they do not, the Court will not receive full briefing or undertake the usual full consideration of the legal error being conceded. Consequently, while I believe we should resolve the merits of those legal issues, it is difficult if not impossible to do so in these circumstances. It is possible, however, to at least consider whether the error is plausible, as the United States Supreme Court does. Therefore, going forward, I will acquiesce in the Court's acceptance of these confessions in cases when the error is plausible. Further supporting this approach is the fact that the orders that issue in these cases, like GVRs, fail to create any binding precedent. Id. at 874-875 (explaining that a GVR does not create any precedent). The Court's order in this case, for example, contains no recitation of the facts or legal analysis to support a conclusion that the trial court abused its discretion. Cf. DeFrain v. State Farm Mut. Auto. Ins. Co. , 491 Mich. 359, 369, 817 N.W.2d 504 (2012) (holding that an order of this Court that adopted by reference a Court of Appeals opinion that "set forth the facts and legal analysis necessary to support the final disposition of the application" was binding precedent).
Justice Scalia similarly acquiesced to the Supreme Court's practice of disposing of cases by GVR under certain circumstances. See Lawrence v. Chater , 516 U.S. 163, 191-192, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996) (Scalia, J., dissenting); Nunez v. United States , 554 U.S. 911, 911, 128 S.Ct. 2990, 171 L.Ed.2d 879 (2008) (Scalia, J., dissenting); see also Altantawi , 507 Mich at 876 n 4 ( Viviano , J., dissenting) (discussing Justice Scalia's acquiescence).
Because I agree that this practice should be disfavored—and therefore used as infrequently as possible—when a claim of error is not only plausible but clearly meritorious, I believe we should issue a peremptory order that expressly decides the case on the merits, rather than merely citing the confession of error. See MCR 7.305(H)(1).
Unlike the prosecution's confession of error in Altantawi , the prosecution's concession in this case that the trial court abused its discretion by imposing a sentence of life without parole is at least plausible. In making its sentencing determination, the trial court was required to, and did, consider the possibility of rehabilitation. See MCL 769.25(6) ; Miller v. Alabama , 567 U.S. 460, 478, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The trial court was "hesitant that defendant would be able to maintain the improvements [she had made since being incarcerated] when she is not in a highly-structured environment." But recent caselaw calls into question whether it was proper for the trial court to engage in such speculation about what defendant might be capable of if no longer incarcerated. See People v. Bennett , ––– Mich.App. ––––, ––– N.W.2d ––––, 2021 WL 220035 (2021) (Docket No. 350649). Due process requires a sentence to be based on accurate information, People v. Miles , 454 Mich. 90, 100, 559 N.W.2d 299 (1997), and in Bennett the Court of Appeals held that "a purely theoretical and uncertain prediction" that a defendant might "cause a problem" if released violates due process if there is no evidence to support the trial court's factual finding regarding the risk of reoffending. Bennett , ––– Mich.App.at ––––, ––– N.W.2d ––––, 2021 WL 220035, slip op. at 13 (quotation marks omitted). I would have preferred to have received additional briefing and heard oral arguments on the merits of defendant's application for leave to appeal. But because the confession of error was at least plausible under binding Court of Appeals caselaw, I do not object to the Court's resolution of this case. For these reasons, I concur.
The prosecution's additional concession that it was improvident to seek a sentence of life without parole under MCL 769.25a (providing for resentencing of juvenile defendants in light of Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ) is irrelevant to whether defendant is entitled to resentencing. Although the prosecution initially had discretion as to whether to seek a sentence of life without parole under MCL 769.25a, the statute contains no mechanism for amending a sentence after it is imposed. Any discretion the prosecution had under the statute with respect to its sentencing request ended when defendant was resentenced by the trial court. Thus, the only inquiry pertinent to defendant's appeal is whether the trial court abused its discretion by granting the prosecution's request and imposing a sentence of life without parole.
In characterizing the confession of error as plausible, I pass no judgment on whether Bennett was correctly decided.