Opinion
351824
09-16-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. PATRICK NEIL KINNEY, Defendant-Appellant.
UNPUBLISHED
Genesee Circuit Court LC No. 95-052345-FC
Before: Borrello, P.J., and Servitto and Stephens, JJ.
Per Curiam.
This case centers around the application of Miller v Alabama, 567 U.S. 460; 132 S.Ct. 2455; 183 L.Ed.2d 407 (2012), and Montgomery v Louisiana, 577 U.S. 190; 136 S.Ct. 718; 193 L.Ed.2d 599 (2016), to juveniles sentenced to parolable life imprisonment. Miller held that mandatory life-without-parole ("LWOP") sentences for juveniles violated the Eighth Amendment to the United States Constitution, and Montgomery applied Miller retroactively. See Montgomery, 577 U.S. at 206-213. On June 19, 1995, defendant, Patrick Neil Kinney, pleaded guilty to one count of second-degree murder, MCL 750.317. On January 7, 1997, the sentencing court sentenced defendant to serve life in prison with the possibility of parole. Defendant appeals by delayed leave granted the June 27, 2019 order of the Genesee Circuit Court denying his motion for relief from judgment under MCR 6.502(G)(2). We affirm.
People v Kinney, unpublished order of the Court of Appeals, entered May 18, 2020 (Docket No. 351824). We originally denied defendant's delayed application for leave to appeal. People v Kinney, unpublished order of the Court of Appeals, entered March 18, 2020 (Docket No. 351824). However, on reconsideration, we granted the application on the basis of a potential change in law that the trial court relied upon when denying defendant's motion. The trial court relied on People v Williams, 326 Mich.App. 514; 928 N.W.2d 319 (2018), but that case was subsequently reversed in part by order of our Supreme Court in People v Williams, 505 Mich. 1013; 940 N.W.2d 75 (2020), which was issued shortly after we initially denied defendant's leave to appeal.
I. BACKGROUND
The facts are not in dispute for purposes of this appeal. Defendant was 16 years of age when he and his codefendant planned to murder two individuals and steal a van in order "to run away." Defendant and his codefendant murdered the victim, who was 15 years of age and the codefendant's twin brother. The planned murder of the victim's stepmother ultimately did not occur. Defendant pleaded guilty to second-degree murder and was sentenced to life in prison with the possibility of parole. Over the course of the coming decades, defendant filed numerous motions for relief from judgment and applications for leave to appeal, all of which were denied. Subsequent to the Miller and Montgomery decisions, defendant filed the instant action requesting relief from judgment.
Defendant argued in his motion that Miller and Montgomery applied retroactively to his sentence, despite it being life with parole, and required the sentencing court to have considered the attributes of youth before sentencing him. Defendant contended that his sentence of life with parole was the equivalent to a sentence of LWOP in part due to Parole Board treatment of such sentences thus Montgomery and Miller analysis applied to his sentence as well. Defendant maintained that his second-degree murder sentence violated the Equal Protection Clause of the United States Constitution as well as the Michigan Constitution because, under Michigan's statutory scheme, juveniles sentenced to mandatory LWOP would be resentenced either to LWOP or a term of years not to exceed 60 years, which meant that some offenders would receive a lesser sentence than defendant despite having been convicted of, and sentenced for, first-degree murder.
Defendant further argued that his sentence was disproportional because of the trial court's failure to consider mitigating factors at his original sentencing. The trial court rejected each of these arguments, citing People v Williams, 326 Mich.App. 514; 928 N.W.2d 319 (2018), rev'd in part 505 Mich. 1013; 940 N.W.2d 75 (2020), and stated that "the Court of Appeals ruled that a sentence of life with the possibility of parole was not invalid under Miller"; without a sentence of mandatory LWOP, there could be no relief under Miller or Montgomery. The trial court ruled that defendant's sentence was valid and permitted under Michigan law. This appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
We review the trial court's decision on a motion for relief from judgment for an abuse of discretion, and we review for clear error the findings of fact that support this decision. People v Swain, 288 Mich.App. 609, 628; 794 N.W.2d 92 (2010). An abuse of discretion occurs when the trial court's "decision falls outside the range of reasonable and principled outcomes" or when it "makes an error of law." Id. at 628-629. Clear error occurs "when the reviewing court is left with the definite and firm conviction that a mistake has been made." People v Chaney, 327 Mich.App. 586, 587 n 1; 935 N.W.2d 66 (2019).
B. DEFENDANT'S SENTENCE
Defendant contends that, with the reversal of Williams by our Supreme Court, he must be resentenced because Miller and Montgomery apply to more than just mandatory LWOP sentences for juveniles. He argues that these cases apply to life-with-parole sentences because such sentences in Michigan are effectively LWOP given the more stringent parole requirements for life offenders. Furthermore, he maintains that his sentence constituted cruel or unusual punishment under the Michigan Constitution and cruel and unusual punishment under the United States Constitution. He further argues that the parole process does not offer him a meaningful opportunity for release. We disagree.
"The Michigan Constitution prohibits cruel or unusual punishment, whereas the United States Constitution prohibits cruel and unusual punishment." People v Benton, 294 Mich.App. 191, 204; 817 N.W.2d 599 (2011) (citations omitted). Generally, the protection afforded under the Michigan Constitution is considered to be broader than that provided for under the United States Constitution. As a result, "[i]f a punishment passes muster under the state constitution, then it necessarily passes muster under the federal constitution." Id. (quotation marks and citation omitted). "The Eighth Amendment's prohibition on cruel and unusual punishment guarantees individuals the right not to be subjected to excessive sanctions." Miller, 567 U.S. at 469 (quotation marks and citation omitted). In construing this principle, the Supreme Court held in Miller that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Id. at 465. While these sentences violate the Eighth Amendment, the Supreme Court further stated that "[a] State is not required to guarantee eventual freedom but must provide [juveniles] with some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Id. at 479 (quotation marks and citation omitted). Further, in Montgomery, the Supreme Court held that the rule announced in Miller applied retroactively to juvenile offenders. Montgomery, 577 U.S. at 212.
We have already expressly addressed and rejected the arguments raised by defendant. In People v Stovall, __Mich App__, __;__ N.W.2d (2020) (Docket No. 342440); slip op at 1, lv gtd __Mich__; 957 N.W.2d 827 (2021), the defendant pleaded guilty to two counts of second-degree murder, and he was sentenced to two concurrent sentences of life with parole. Similar to the present case, the defendant filed numerous motions for relief from judgment "[o]ver the next quarter-century." Id. After Miller and Montgomery, the defendant sought relief based on the retroactive change in the law that Miller set forth. See id.__; slip op at 1-2. He contended on appeal that Miller and Montgomery "constituted a retroactive change in the law that rendered his sentences of life imprisonment with the possibility of parole invalid." Id. at__; slip op at 3. The defendant asked "this Court to extend the provisions of Montgomery and Miller to sentences beyond those labeled 'life without parole, '" but we expressly rejected this argument. Id. at__; slip op at 3, 7-8.
In doing so, we referenced our prior decision in Williams, in which we held that the holdings of Miller and Montgomery applied "only to mandatory sentences of life without the possibility of parole," not parolable life sentences. Williams, 326 Mich.App. at 521 (emphasis added). We acknowledged the fact that our Supreme Court had reversed Williams on other unrelated grounds:
The Michigan Supreme Court thereafter reversed, holding that the trial court "shall consider whether the sentence for second-degree murder was based on a legal misconception that the defendant was required to serve a mandatory sentence of life without parole for first degree murder." That is, it accepted the defendant's
second argument, an argument not available to defendant in our case as he was not facing a mandatory life sentence.
Our consideration of Williams in this case is only in regards to the defendant's first argument, whether Miller applies to sentences of life with parole for second-degree murder. The Michigan Supreme Court did not consider, nor did it reverse, this Court's analysis and conclusion on that issue. [Stovall, Mich.App. at; slip op at 7 n 3.]
Therefore, we held that the "defendant's sentences do not constitute cruel or unusual punishment." Id. at__; slip op at 7. Under the "minimal reading" of Miller and Montgomery, "defendant's sentences do not violate the Eighth Amendment, because defendant did not receive a mandatory sentence of life imprisonment without parole"; and, under the "maximal reading, defendant's sentences still comport with the Eighth Amendment's requirement that juvenile offenders be given a meaningful opportunity to obtain release on the basis of his maturity and rehabilitation." Id. We explicitly stated that the defendant's opportunity for parole constituted a "meaningful opportunity for release" under Miller. Id.
Stovall noted that the defendant in Stovall cited from other jurisdictions, as does this defendant, but underscored that such cases were nonbinding and distinguishable because they dealt "with the constitutionality of term-of-years sentences that act as de facto life sentences," not a sentence of life with the possibility of parole. Id. at; slip op at 7-8. Importantly, Stovall rejected the defendant's contention that the parole process for individuals serving sentences of life imprisonment with the possibility of parole denied him a meaningful opportunity for release, reasoning that,
[w]hile we accept the possibility that the parole board's policies and procedures may not comport with the requirements of Miller and Montgomery, a motion for relief from judgment is not the proper procedural vehicle through which defendant can pursue those claims. Defendant's sentences, as imposed by the sentencing court, comport with the Eighth Amendment because they provide him with a meaningful opportunity for release. That the parole board's policies stymie defendant's efforts is a matter to be asserted against the parole board, and is not a ground for vacating defendant's sentences. [Stovall, Mich.App. at; slip op at 8.]
We continued:
Generally, a parole board's consideration of an individual's application for parole does not implicate a due process right. . . . There is nothing in these opinions to imply that defendant's sentences to life imprisonment with the possibility of parole are invalid because they deny defendant a parole process aimed toward a meaningful opportunity for release. As discussed earlier, while the parole board's policies and procedure may not comport with the Eighth Amendment, defendant's constitutional claim lies with those policies and not with the validity of his sentences. [Id. at__; slip op at 9.]
Finally, we rejected the defendant's argument "that his sentences violate due process because neither the sentencing court nor the parole board have considered his juvenile status and attendant circumstances." Id. at; slip op at 8. We reasoned that Miller and Montgomery did "not support the proposition, as defendant asserts, that consideration of a defendant's juvenile status is a procedural requirement when sentencing all individuals convicted of a crime committed while a juvenile." Id. at; slip op at 8-9. Rather, because the defendant had not been sentenced to mandatory or even discretionary LWOP, and instead had received a sentence that permitted parole, his argument necessarily failed. Id.
Accordingly, we rejected the same arguments in Stovall that defendant raises in the present appeal. Miller and Montgomery do not apply to defendant's sentence because he was not sentenced as a juvenile to mandatory LWOP; instead, he was sentenced to life with parole, and this offered him a meaningful opportunity for release. In fact, we note that he is currently being considered for parole. Given that defendant was not sentenced to mandatory LWOP, the sentencing court was not required to consider the mitigating characteristics of youth espoused in Miller. Furthermore, his sentence did not violate either the United States or Michigan Constitution. Any issues defendant may have with the parole process pertains not to his sentence but, rather, the parole policies themselves. A motion for relief from judgment is not the proper procedural avenue to raise this issue; rather, he must raise such concerns before the Parole Board.
C. MISCONCEPTION OF THE LAW
Defendant alternatively argues that his sentence was based on a misconception of the law, in violation of the due process clause of the fourteenth amendment. We disagree.
We first note that this issue was not raised in the trial court and, therefore, is unpreserved. See People v Konopka, 309 Mich.App. 345, 356; 869 N.W.2d 651 (2015). Unpreserved nonconstitutional issues are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999).
In People v Turner, unpublished per curiam opinion of the Court of Appeals, issued May 17, 2018 (Docket No. 336406), rev'd 505 Mich. 954; 936 N.W.2d 827 (2020), the primary authority relied upon by defendant, the Turner defendant was convicted in 1995 as a juvenile of first-degree murder, assault with intent to commit murder ("AWIM"), and felony-firearm; he was sentenced to mandatory LWOP for the first-degree murder conviction, life with parole for the AWIM conviction, and two years for the felony-firearm conviction. Id. at 1. Under Miller, the defendant was entitled to resentencing on his LWOP sentence for his first-degree murder conviction; however, the defendant also sought resentencing for his AWIM conviction. Turner, unpub op at 1-2. The trial court agreed and resentenced the defendant to serve 20 to 27 years in prison for the AWIM conviction. Id. at 2. We disagreed and reversed the trial court's decision. Id. at 3.
In an order reversing this Court's decision, our Supreme Court remanded for the trial court to reinstate the resentence for the AWIM conviction:
A sentence is invalid if it is "based upon . . . a misconception of law . . . ." In the Miller context, a concurrent sentence for a lesser offense is invalid if there is reason to believe that it was based on a legal misconception that the defendant was required to serve a mandatory sentence of life without parole on the greater offense. Accordingly, at a Miller resentencing, the trial court may exercise its discretion to resentence a defendant on a concurrent sentence 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. [Turner, 505 Mich. at 954 (citation omitted; alterations in original).]
In the present case, defendant contends that Turner should be applied to his case. However, this is an improper interpretation and extension of Turner. The misconception addressed in Turner involved concurrent sentences of mandatory LWOP parole and whether the sentencing court believed that a defendant was required to serve mandatory LWOP for the greater offense. The sentencing court believed that the defendant was required to serve mandatory LWOP for the first-degree murder offense and that this necessarily influenced the sentence for AWIM. Defendant in the present case was not sentenced to a concurrent mandatory LWOP sentence; rather, he was sentenced only to life with parole. Therefore, Turner is inapposite.
Defendant also contends that his sentence was not proportional under People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1 (1990). This issue could have been raised in any one of defendant's numerous prior motions for relief from judgment and is therefore barred from consideration. MCR 6.508(D)(3); MCR 6.502(G); MCR 6.504(B)(2). See also Swain, 288 Mich.App. at 629-630. Although there are exceptions to this rule, defendant fails to persuasively show why any of the listed exceptions are applicable. Milbourn was decided long before he filed his first motion for relief from judgment in 1999, and the proportionality of his sentence could have been raised at that time. Furthermore, we are convinced that the sentence was proportional. The undisputed facts show that defendant and his codefendant planned to murder two individuals and that, while the victim was held down, defendant stabbed him 45 times to the face and body. Defendant's sentence gave an opportunity for eventual rehabilitation and release despite the brutality of this offense, and, in fact, defendant is currently being considered for parole. Defendant claims he has been rehabilitated, but it is the Parole Board that will review these claims and ultimately decide whether such claims hold merit.