Opinion
SC 166967 COA 353821
11-08-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMAR TERRELLE PURDLE, Defendant-Appellant.
Kent CC: 19-003606-FC
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the February 22, 2024 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
WELCH, J. (dissenting).
For the reasons that follow, I respectfully dissent from the Court's order denying leave to appeal.
I. BACKGROUND
Defendant was convicted by a jury as a fourth-offense habitual offender of second-degree murder (MCL 750.317) and several related firearms offenses for the shooting death of Mikeya Day following an altercation over drugs and money on March 31, 2019. The punishment for second-degree murder is "imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same." MCL 750.317. The sentencing court imposed a term-of-years punishment. After scoring the advisory guidelines and accounting for defendant's fourth-offense habitual-offender enhancement, the court arrived at a recommended minimum sentencing range of 315 to 1,050 months' imprisonment. From within this range, the court then imposed a term-of-years punishment of 680 to 960 months' (56% to 80 years') imprisonment for second-degree murder, with a mandatory consecutive sentence of two years for the felony-firearm convictions. Given defendant's age and his earliest release date of November 29, 2077, defendant will be past his 89th birthday before he is eligible for parole consideration. See MCL 791.234(1), as amended by 2017 PA 265.
The other offenses were carrying a concealed weapon, MCL 750.227, being a felon in possession of a firearm, MCL 750.224f, and two counts of possessing a firearm during the commission of a felony, MCL 750.227b.
A fourth-offense habitual-offender enhancement has the effect of increasing the upper limit of an advisory minimum sentencing guidelines range by 100%. MCL 777.21(3)(c). Without this enhancement, defendant's minimum sentencing guidelines range would have been 315 to 525 months.
The court also imposed concurrent sentences of 60 to 180 months' imprisonment each for the convictions of carrying a concealed weapon and felon-in-possession.
Because the sentence imposed was within the range provided by the advisory legislative sentencing guidelines and MCL 769.34(10) had yet to be struck by this Court, the Court of Appeals initially rejected defendant's efforts to challenge the proportionality of his sentence. See People v Purdle, unpublished per curiam opinion of the Court of Appeals, issued February 1, 2022 (Docket No 353821), pp 6-7. This Court later remanded defendant's case to the Court of Appeals for reconsideration of his challenge to the sentence imposed for his second-degree murder conviction under People v Posey, 512 Mich. 317 (2023) (striking MCL 769.34(10), which required affirmance of a minimum sentence that was "within the appropriate guidelines sentence range" absent error in scoring the guidelines or a court's reliance on inaccurate information and holding instead that a rebuttable presumption of proportionality applies to within-guidelines sentences). See People v Purdle, 513 Mich. 915 (2023). The Court of Appeals affirmed defendant's sentence on remand, over the dissent of Judge SHAPIRO. See People v Purdle (On Remand), __Mich App __(2024).
Defendant claims that the sentence imposed by the trial court amounts to a de facto life sentence. He argues in this Court that if the circumstances of the crime, his health, his age, and the four objectives to be balanced during criminal sentencing are considered as a part of the proportionality analysis, then one must conclude that his minimum sentence of 58% years' imprisonment is unreasonable and disproportionate. More specifically, defendant argues that the average life expectancy of incarcerated adult African American men in Michigan is 56 years, which, considering defendant's age of 31 at the time of sentencing, makes it unlikely that he will live long enough to serve his minimum term. In defendant's view, such sentences are necessarily disproportionate and out of step with the history of indeterminate sentencing in Michigan.
Courts are required to consider and balance four objectives when crafting criminal sentences: "[1] reformation, [2] protection of society, [3] punishment, and [4] deterrence of others from committing like offenses." People v Snow, 386 Mich. 586, 592 (1972). See also People v Sabin, 242 Mich.App. 656, 661-662 (2000).
He notes that under People v Moore, 432 Mich. 311, 321 (1989), this Court previously held that a term-of-years sentence that is really a de facto life sentence under which the offender is not reasonably likely to live long enough to serve the minimum term is legally invalid. Defendant acknowledges that People v Lemons, 454 Mich. 234 (1997), has been read as abrogating Moore on this point. But both defendant and Judge SHAPIRO's dissenting opinion in the Court of Appeals, see Purdle (On Remand), __Mich App at __; slip op at 2 (SHAPIRO, J., dissenting), invite this Court to reconsider Lemons and reinstate Moore.
II. ANALYSIS CONCERNING DEFENDANT'S ARGUMENTS ON APPEAL
While I do not know the outcome, I would have taken this case to consider defendant's arguments and the arguments raised in Judge SHAPIRO's dissent. The sentence imposed in Moore was 100 to 200 years' imprisonment for a conviction of second-degree murder, and the sentencing judge made clear that the sentence was imposed to prevent the possibility of parole consideration. Moore, 432 Mich. at 313-314. This Court held that where the options for punishment were an indeterminate sentence of any term of years or a sentence of life with the possibility of parole, a trial court abused its discretion when it imposed a term of years that was so long that the offender would not live to serve his minimum term. Id. at 315-321. In other words, Moore held that a sentencing court could not avoid a life sentence (where parole was potentially available) by instead sentencing a defendant to a term of years where the minimum and maximum term both exceeded the individual's expected lifespan, thus eliminating the possibility of parole and of completing the sentence. When a statute authorizes any term of years or life, "a term of years is a lesser penalty than life," and "[t]hus[,] there are two types of sentences that a judge may impose upon a person convicted of second-degree murder-a sentence of life in prison, or a sentence of a term of years less than life." Id. at 317, 319.
Under this logic, it followed that if a term-of-years sentence could not possibly be served within the reasonable lifetime of the offender, then the sentence could not be a valid indeterminate term-of-years sentence. Id. at 321. As to a trial court's sentencing discretion, see People v Coles, 417 Mich. 523 (1983), the Court stated that "we are not shocked, and we do not find the effective length of the sentence (life imprisonment) to be an abuse of the trial court's sentencing discretion." Moore, 432 Mich. at 325. But the trial court had still abused its discretion by
Coles was overruled in part by People v Milbourn, 435 Mich. 630, 635 (1990). See also People v Boykin, 510 Mich. 171, 192 (2022).
entering an order that is impossible to obey. The defendant has committed a terrible crime and must serve a lawful sentence. Whether sentenced to serve life in prison or a term of years in prison, the defendant is obliged to obey the order of the sentencing judge and the subsequent dictates of the Parole Board. This defendant cannot serve a minimum sentence of 100 years in prison because he will die first. Neither can he serve a maximum sentence of 200 years in prison. [Id.]On remand, "the trial court must enter an order that is possible to obey." Id. at 326.
The sentence in Moore was deemed an abuse of discretion in one other regard. The law in place at the time made parole for someone sentenced to life in prison dependent on the approval of the sentencing judge or the judge's successor, see MCL 791.234(4)(b) as amended by 1982 PA 314, but a sentence of 100 to 200 years constitutes an effective life sentence that forecloses the judge's (or their successor's) future exercise of discretion in considering whether to approve parole for a life sentence, Moore, 432 Mich. at 326.
Subsequently, in Lemons, this Court held that a trial court was not required to treat defendants differently "solely on the basis of the age of the defendant at sentencing where the Legislature has authorized the judge to impose life or any term of years." Lemons, 454 Mich. at 259. Lemons has been construed as abrogating Moore. It is true that in Lemons the Court did not apply the clear rule from Moore, and instead held that the defendant's challenge to his sentence was governed by the more recent decisions in People v Milbourn, 435 Mich. 630 (1990) (overruling the "shocks the conscience" standard from Coles and adopting the principle of proportionality as the standard for reviewing a trial court's exercise of sentencing discretion), and People v Merriweather, 447 Mich. 799, 809-810 (1994) (holding that a term-of-years sentence that effectively deprives the offender of the potential for parole consideration is not an abuse of discretion even though "it is paradoxical that the defendant might be better off with a sentence of life, which would make him eligible for parole"). Lemons ultimately held that under Milbourn and Merriweather, a sentence of 60 to 90 years for a conviction of first-degree criminal sexual conduct, which was an upward departure from the sentencing guidelines, was not unreasonable or disproportionate merely because the defendant would be older than 96 before becoming parole eligible. Lemons, 454 Mich. at 256-260.
I acknowledge that Milbourn and Merriweather changed some of the foundational legal principles employed in Moore. However, Lemons did not overrule Moore or even counter the legal rationale that was applied in Moore to hold that the sentence imposed was an abuse of discretion. I also find it noteworthy that Justice MICHAEL CAVANAGH-the author of Moore and a dissenter in Merriweather-dissented in part in Lemons on the basis that
[a] sentence fashioned for the sole purpose of depriving the parole board of its legislatively provided jurisdiction constitutes an abuse of a sentencing court's discretion. It is well established that a sentencing court must exercise its discretion within the parameters established by the Legislature....
. . . "Sentencing a defendant with the sole intent of effectively preventing the jurisdiction of the parole board is contrary to the legislative scheme and, accordingly, is an abuse of a sentencing court's discretion." [Lemons, 454 Mich. at 261 (M. F. CAVANAGH, J., concurring in part and dissenting in part), quoting Merriweather, 447 Mich. at 816 (M. F. CAVANAGH, C.J., dissenting).]It is unclear whether, in terms of precedential value, any of the rationales or holdings from Moore survive Lemons and Merriweather. Clarification would benefit litigants and jurists alike.
Even if nothing in Moore remains binding precedent, then the principle of proportionality must still be applied under Posey and Milbourn. Under a proportionality standard, it must be possible that a term-of-years sentence that a defendant is not expected to survive will be unreasonable under some circumstances and reasonable under others. Cases involving repeat offenders, like this one, also present difficult circumstances for applying the proportionality principle. There is no doubt that given defendant's extensive criminal history and the facts of this case, a lengthy term of punishment is justified. As this Court has recognized, a "premise of our system of criminal justice is that, everything else being equal, the more egregious the offense, and the more recidivist the criminal, the greater the punishment." People v Babcock, 469 Mich. 247, 263 (2003). The Legislature has indicated its agreement with this general principle through its lawmaking powers, such as by the creation of prior record variables that are used to score the advisory legislative sentencing guidelines, see MCL 777.50 to MCL 777.57, and habitual-offender enhancements that greatly increase the upper limit of an advisory minimum sentencing guidelines range (sometimes by as much as 100%), see MCL 777.21(3).
Unfortunately, this Court has done little to define either end of the proportionality spectrum or to guide courts regarding what weight to give a nonjuvenile offender's age or health when crafting a sentence. There remains uncertainty as to how individualized sentencing considerations should be balanced against the Legislature's intent to authorize greater punishment for someone's recidivism; a sentencing enhancement can result in such a broad permissible range as to provide little guidance to sentencing courts. It is still unclear what factors a convicted individual can put forward to successfully meet their burden of overcoming the presumption of proportionality that attaches to a within-guidelines sentence under Posey.
Some of these concerns were, in fact, expressed by Judge RICK when presiding over the remand in People v Posey. See People v Posey (On Remand), __Mich App __, (November 30, 2023) (Docket No. 345491) (RICK, J., dissenting), slip op at 3 ("It is my fear that without concrete guidance as to how to approach the appellate review of within-guidelines sentences, the inclination will be to sign off on any such sentence as reasonable and proportionate while paying little more than lip service to Posey's mandate."). Additional guidance from this Court is needed. Regardless of whether this Court would have reversed or affirmed the Court of Appeals in this case, by denying leave to appeal in another post-Posey postremand appeal, the Court has avoided grappling with a difficult issue despite judges needing further guidance.
III. ADDITIONAL CONCERNS REGARDING MCL 791.234
Some of my concerns about the tension between parole eligibility being earlier for some individuals sentenced to life imprisonment than individuals serving a term of years arguably have less to do with the length of a specific sentence than with the way in which the Legislature has structured the Parole Board's jurisdiction. This case highlights the paradoxical reality that-in terms of eligibility for parole consideration-some individuals might be better off receiving a sentence of life with the possibility of parole than a term-of-years sentence, even though the former is technically a harsher punishment under the law. This defendant appears to be someone who fits the bill, even if a life sentence would mean continued supervision by the Department of Corrections for the rest of his life.
Currently, MCL 791.234(1) and (2) state that, subject to limited exceptions under MCL 791.235(10) and MCL 791.234a, if a prisoner is sentenced to an indeterminate term of years less than life, they must complete the entire minimum term before coming under the Parole Board's jurisdiction to be eligible for parole consideration. MCL 791.233b also continues to mandate that the minimum term be served for certain listed offenses before the convicted individual becomes eligible for parole consideration. Conversely, MCL 791.234(7) and (8) state that, except for crimes list in Subsection (6), a person sentenced to life with the possibility of parole for a crime committed after October 1, 1992, is generally first eligible for parole consideration after 15 years and they must be considered for parole every 5 years after that. See MCL 791.234(7)(a); MCL 791.234(8)(b).
As amended by 2019 PA 14.
MCL 791.235(10) concerns parole for medically frail inmates, and MCL 791.234a concerns a limited special alternative incarceration program.
In March 2025, assuming that the Legislature adjourns as scheduled in December 2024, Public Act 111 of 2024 will take effect, and it will create new timetables for when someone sentenced to life with the possibility of parole is eligible for parole consideration.
But MCL 791.234(1) will continue to require that the entire minimum term of an indeterminate term-of-years sentence be served before someone is eligible for parole. Although the statute will still contain allowances for statutory good time and disciplinary credits, as Judge SHAPIRO noted below, these statutory credit programs have not existed for quite some time. Purdle (On Remand), __Mich App at __(SHAPIRO, J., dissenting); slip op at 2, citing Levine, Too Many Prisoners: Undoing the Legacy of Getting Too Tough, 96 Mich. B J 32, 34 (Sep 2017).
The paradox created by the tiered framework for the Parole Board's jurisdiction under MCL 791.234 raises concerns about the fair and equal application of law to individuals convicted of felonies. On one hand, it has long been understood that, with limited exceptions, the possibility of release on parole before one completes their full criminal sentence is not a statutory or constitutional right, and whether to grant parole rests within the discretion of the Parole Board. See MCL 791.234(11); Makowski v Governor, 495 Mich. 465, 478 (2014); Jones v Dep't of Corrections, 468 Mich. 646, 652 (2003). On the other hand, the Legislature has only authorized the imposition of life without the possibility of parole for a very narrow class of felonies, such as first-degree murder, MCL 750.316(1), a specific form of first-degree criminal sexual conduct, MCL 750.520b(2)(c), and a handful of other crimes that are excluded from the Parole Board's jurisdiction under MCL 791.234(6).
For all other felony offenses in Michigan, there is presumably a statutory right to be eligible for parole consideration at some point within a person's lifetime after being convicted. In addition to this right, numerous individuals who have appeared before this Court have lamented that many of the in-prison programs designed to help inmates achieve rehabilitation and reintegration into society are not available until one approaches their earliest release date. In practical terms, this means that someone sentenced to life in prison with the possibility of parole for a homicide conviction could gain access to rehabilitative services sooner than someone who is serving a 20-to-30-year sentence for a drug offense. I question whether the practical realities created by the current statutory scheme comply with due process and equal protection requirements.
It is also notable that in Kitchen v Whitmer, 616 F.Supp.3d 683 (ED Mich, 2022), rev'd 106 F4th 525 (2024), a federal district court held that MCL 791.234(1) was unconstitutional as applied to a defendant who was sentenced to serve 42 to 60 years in prison for a first-degree criminal sexual assault that the defendant committed when he was 17 years old. The court held that the parole eligibility criteria in MCL 791.234(1) violated the Eighth Amendment as applied to the defendant because evidence suggested that the defendant would not be parole eligible until two years before the end of his expected lifespan, and under Graham v Florida, 560 U.S. 48 (2010), the statutory scheme delayed parole review until a point where the defendant's release would no longer be "meaningful." Kitchen, 616 F.Supp.3d at 689-699 (ED Mich, 2022). The district court was reversed on procedural and jurisdictional grounds by Kitchen v Whitmer, 106 F4th 525 (CA 6, 2024), which held that the claim must be brought as a petition for habeas corpus rather than an action under 42 USC 1983. But the district court's initial opinion raises additional questions about the application of MCL 791.234(1) to juvenile offenders who are serving de facto life sentences.
IV. CONCLUSION
For the reasons stated in Part II of this statement, I respectfully dissent from the Court's decision to deny leave to appeal. Although the concerns raised in Part III are largely beyond the scope of the current appeal, such concerns are unavoidable under the current statutory framework. The steady flow of applications for leave to appeal seeking additional guidance from this Court about the contours of proportionality review is likely to continue until the legal standard is more precisely defined. This Court will, eventually, need to answer the call.