Opinion
361540
05-09-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. DAMON ANDREW JACKSON, Defendant-Appellee.
UNPUBLISHED
Kent Circuit Court LC No. 00-005206-FC
Before: M. J. Kelly, P.J., and Jansen and Murray, JJ.
PER CURIAM.
Defendant, Damon Andrew Jackson, was 17 years old when he committed the offense that resulted in a 2001 conviction of felony murder and a mandatory sentence of life without the possibility of parole (LWOP). Following a second Miller hearing in 2022, the trial court resentenced defendant to 420 to 720 months' (35 to 60 years) imprisonment. The prosecution appeals this sentence, arguing that the trial court abused its discretion by finding that defendant's counsel at the first Miller hearing was constitutionally ineffective and by concluding that defendant merited a term-of-years sentence. For the reasons herein, we reluctantly affirm defendant's term-of-years sentence.
Miller v Alabama, 567 U.S. 460; 132 S.Ct. 2455; 183 L.Ed.2d 407 (2012).
I. RELEVANT FACTS AND PROCEEDINGS
In 2012, the United States Supreme Court held that the mitigating characteristics of youth must be considered when sentencing juveniles, and that mandatory sentences of LWOP for juveniles convicted of first-degree murder were unconstitutional. Miller v Alabama, 567 U.S. 460, 470; 132 S.Ct. 2455; 183 L.Ed.2d 407 (2012). This holding was made retroactive in 2016. Montgomery v Louisiana, 577 U.S. 190; 136 S.Ct. 718; 193 L.Ed.2d 599 (2016). Under the system designed by the Michigan Legislature to resentence juvenile lifers, prosecutors are required to file motions for resentencing in all cases in which they intend to ask sentencing courts to affirm a sentence of LWOP. Hearings on these motions are governed by MCL 769.25.
MCL 769.25a(4)(b). At such hearings, a trial court is required to consider the factors listed in Miller, but it may also "consider any other criteria relevant to its decision, including the individual's record while incarcerated." MCL 769.25(6). The factors listed in Miller are:
(1) "[the defendant's] chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences"; (2) "the family and home environment that surround[ed] 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 . . . ." [People v Skinner, 502 Mich. 89, 114-115; 917 N.W.2d 292 (2018), quoting Miller, 567 U.S. at 477-478 (first and second alterations added; third alteration and ellipsis in Skinner).]
The sentencing court is required 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). The court may either resentence the defendant to LWOP or sentence the defendant to a minimum prison sentence between 25 and 40 years, and a maximum prison sentence of not less than 60 years. MCL 769.25(9).
After a bench trial in 1998, the trial court found defendant guilty, but mentally ill, of first-degree child abuse, MCL 750.136b(2), and first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), for brutally physically and sexually abusing his one-month-old son. This Court affirmed defendant's convictions of first-degree child abuse and CSC-I. People v Jackson, 245 Mich.App. 17; 627 N.W.2d 11 (2001). When defendant's son later died from his injuries, a jury convicted defendant of felony murder, and the trial court sentenced him to mandatory LWOP. A panel of this Court affirmed defendant's felony-murder conviction.
People v Jackson, unpublished per curiam opinion of the Court of Appeals, issued July 31, 2003 (Docket No. 233435).
After the United States Supreme Court decided Montgomery, triggering the procedures described in MCL 769.25a, the prosecution filed notice of its intent to continue to seek a sentence of LWOP. This prompted the first Miller hearing. That hearing was held before Kent Circuit Judge Donald Johnston, who had served on that court for almost three decades and presided over both of defendant's trials. After receiving evidence in the form of exhibits and several witnesses (including defendant, character witnesses, and his expert) and considering the written and oral arguments of the parties, Judge Johnston determined that despite his age at the time of the murder (17 days short of 18), defendant should still be sentenced to life in prison without the possibility of parole. In doing so, Judge Johnston examined each of the relevant statutory and Miller factors. With respect to the first factor, Judge Johnston stated:
The first Miller factor is the defendant's chronological age and its hallmark features, among them immaturity, impetuosity, and the failure to appreciate risks and consequences. Well, the defendant in this case was, as has been observed repeatedly, 18 days short of his 18th birthday.
In Miller there was reference to young boys, I think in the age range of 14, and there was certainly a considerable thought that at that tender age perhaps the imposition of a life sentence without parole was unduly harsh. Here, however, as I said, the defendant is very close to a point where there would have been a firm line drawn and we wouldn't be conducting any of this hearing and none of this would be necessary, and the sentence of life without parole would be unassailable and unquestioned. So it seems to me the chronological features suggest that the defendant is very, very, very close to being held appropriately responsible as an adult for his conduct. I also am inclined to agree with the observations made by Ms. Clifton, that there is not evidence here of impetuosity or failure to appreciate risks and consequences. The defendant certainly acted in a most deliberate and intentional fashion in the commission of these acts and wasn't doing something on the spur of the moment. It was a contrived and carefully considered criminal offense.
As to the second Miller factor, Judge Johnston found:
The second Miller factor is the family and home environment that surrounds the defendant and from which he cannot usually extricate himself no matter how brutal or dysfunctional. Well, this is interesting, certainly the defendant grew up in a two-parent household, which is usually the hallmark of stability, and yet the family was dysfunctional and abusive in just about every sense of the word. I think Mr. Phelan properly put his finger on on those factors. And indeed the defendant's father, who was gainfully employed, in fact is a prison guard, somewhat ironically, and he was subsequently convicted of criminal sexual conduct on the defendant's sister. So that's pretty severely dysfunctional any way you look at it and probably not the sort of home environment which is likely to produce the best possible outcome in terms of childrearing. On the other hand, it is true that Mr. Jackson, not only could extricate himself from the home environment, he actually did so. He went to live with other people and went to work, and then subsequently returned to the home which was the site of all of these dysfunctional and abusive characteristics. So clearly he could extricate himself from the home and in fact did so, but for whatever reason chose to return, and as Mr. Phelan has observed, I don't know that we can delve too deeply into the reasons for it, but the point is that he was not stuck there and unable to escape, and in fact he did leave it at one point. The other thing that's interesting, and I'm not a clinician and don't want to trespass on that field, is the fact that not everybody wound up in the situation Mr. Jackson found himself in which gave rise to these proceedings. His brother seems to have turned out rather
well and grew up in the same abusive environment. Why is it that two brothers in the same household environment subject to the same kinds of abuses and dysfunctionality (sic) wind up going such different routes? What causes one to commit an unspeakable criminal act and the other to become a successful, functioning, contributing member of the community? Certainly I don't know, but I think it underscores the point Ms. Clifton was making, that the home environment does not automatically inextricably produce the result of a monstrous criminal act, and in fact people can be productive, law-abiding members of the community and yet have come from a background of that particular scope.
As to the third Miller factor, Judge Johnston found:
The third Miller factor is the circumstances of the homicide offense, including the extent of the defendant's participation in the conduct and the way familiar familial and peer pressure may have affected him.
Well, the circumstances of the case, as absolutely everybody agrees, are horrendous. Mr. Jackson himself, who I think has been pretty honest in assessing his culpability here, makes no effort to hide from the heinousness of the crime of which he stands convicted.
I will agree, Ms. Clifton, that having been on the bench for nearly 40 years, this is probably the worst case of child abuse I have ever seen, and I've seen a lot of them that have been really pretty bad. But this one, I think, in every respect has to be considered the worst.
The circumstances are therefore horrific beyond description, and the extent of the defendant's participation is -- is a hundred percent. He's not an aider and abettor or accessory here or even a second degree principal. He is the one and only first degree principal in the case, so his participation was the whole game. And he does not seem to have been affected by any peer pressure to commit the crime. He certainly had various other motivations, primarily sexual in nature, but not to the extent that in any way can mitigate the magnitude of the offense.
Regarding the fourth Miller factor, Judge Johnston found that there is no indication that the defendant would have been charged any differently than he was had he been older and wiser and more mature, for lack of a better way to characterize it. He was not treated differently, nor did he have difficulty navigating the legal system because of incompetencies associated with youth. He seems to have been candid with the police from the outset, and given the magnitude of the offense, he simply wasn't offered a plea bargain.
Finally, as to the last Miller factor regarding rehabilitation, the court found:
Here, I think it has to be said that Mr. Jackson today presents as a much more mature, reflective individual than he did 20-some years ago when the events in question were occurring. I think he's grown up a great deal. The clinical evidence seems to suggest that whatever mental conditions he may have been suffering from previously, he's not suffering from anymore, and indeed there seems to be some indication from the latest clinical assessments that the initial reports by Dr. Miller some years ago were embellished and may have gone beyond the bounds of what the actual facts were. It also appears, as indicated by Ms. Clifton, that the defendant, I think, bought into Dr. Miller's somewhat excessive findings, perhaps in the hopes that that would constitute some form of mitigation.
As to the remaining statutory factors not covered by Miller, Judge Johnston found:
The -- I suppose the other factors, which are addressed vaguely in the statute, include the defendant's adjustment to prison life. The defendant has a number of tickets; however, as Mr. Phelan accurately points out, many of them date back to the early days of his incarceration, and, as these things go, they are not generally for particularly serious misconducts. There are a number of them, but they tend to be things like being out of place and disobeying an order or being insolent, things of that sort. And it would seem, both from the testimony of Mr. Jackson and also from Reverend Bell, that he has had a generally positive adjustment to incarceration, and seems to be reflecting appropriately upon his past misdeeds which have put him where he is, and he's taken advantage of whatever opportunities have been presented him to try and improve himself while incarcerated.
After these findings on each of the relevant factors, Judge Johnston's weighing of these findings led to the conclusion that defendant should still be subject to LWOP:
So it's one of these things where we have kind of a split verdict, I suppose. I do think that the Miller factors by a substantial majority militate in favor of the mandatory sentence of life imprisonment, or at least they don't mitigate the case to the degree which would call for a term of years sentence. There are factors which are more favorable to the term of years outcome, but there are, I think, more factors which are, again, militating in the opposite direction.
On balance, it seems to me that the majority of factors and indeed the most important ones militate in favor of the sentence that was originally imposed on Mr. Jackson. It seems to me that if Mr. Jackson continues to make progress in the institutional setting, and I hope he does, that the appropriate recourse is for clemency through the executive branch, and there is a significant machinery in place. I know I've been consulted periodically on cases where executive clemency is being sought by prisoners serving life without parole. I won't be here to deal with it because I'm retiring at the end of the year, but my successor, Judge Denenfeld, will, and I'm sure would take serious any application that might be filed by or on behalf of Mr. Jackson. But my final assessment of the case is that there is not a sufficient basis to deviate from the life in prison without parole sentence
originally imposed by the Court. My conclusion as a matter of fact and law is that a term of years is simply not appropriate to a crime of this magnitude, and based on the analysis which I have undergone in preparation for this hearing and during the course of the hearing, I am satisfied that the previously pronounced sentence of life without parole is appropriate and should be reaffirmed.
In December 2018, Judge Johnston retired. Just months later, defendant, through appellate counsel, moved for a new Miller hearing, arguing that defendant's counsel rendered constitutionally ineffective assistance at the first Miller hearing. After an evidentiary hearing and the parties' submission of supplemental briefs and exhibits, the successor trial court judge ruled that defendant's counsel at the first Miller hearing performed deficiently by "(1) failing to hire a mitigation specialist or an investigator experienced in mitigation, (2) failing to independently investigate Defendant's prison records; and (3) making the decision to forgo further investigation to ensure that Judge Johnston presided over the resentencing." The trial court concluded that, but for counsel's deficient performance, there was a reasonable probability that defendant would not have been resentenced to LWOP, and granted defendant's motion for a new Miller hearing.
The prosecution sought leave to appeal the trial court's ruling through a delayed application for leave to appeal in this Court. This Court denied the delayed application "for lack of merit in the grounds presented." The prosecution did not move for rehearing or apply for leave to appeal in the Supreme Court.
People v Jackson, unpublished order of the Court of Appeals, entered February 10, 2021 (Docket No. 355845).
After the second Miller hearing, the trial court came to the opposite conclusion than Judge Johnston. With regard to the first Miller factor, the court found that defendant "acted impulsively and irresponsibly throughout his adolescence, and likely did not fully appreciate the full consequences of his offense conduct." The court deemed this factor to tilt slightly away from LWOP. The trial court concluded under the second Miller factor that defendant's "shockingly dysfunctional" family and home environment weighed strongly against LWOP. Under the third Miller factor, the trial court observed that the appalling circumstances of the homicide offense only weighed slightly in favor of LWOP when considered alone, but noted that in People v Bennett, 335 Mich.App. 409, 426; 966 N.W.2d 768 (2021), this Court counseled against giving too much weight to the offense conduct. The trial court found that whether defendant would have been charged and convicted of a lesser offense, but for the incompetencies of youth, also weighed slightly in favor of LWOP. Lastly, noting defendant's stellar prison record and the opinion of a qualified expert that defendant had put together decades of excellent behavior, the court concluded that evidence of defendant's rehabilitation weighed significantly against LWOP. On the basis of its analysis, the trial court concluded that a term-of-years sentence was appropriate.
At a subsequent resentencing hearing, the trial court sentenced defendant to 420 to 720 months in prison (35 to 60 years), with credit for 265 months. The prosecution now appeals.
II. LAW OF THE CASE
The prosecution concedes that this Court's denial of its delayed application for leave to appeal the trial court's decision to grant a second Miller hearing "for lack of merit in the grounds presented" established the law of the case regarding whether counsel rendered ineffective assistance in the first Miller hearing. Nevertheless, the prosecution urges us to revisit the trial court's ineffective-assistance ruling on the basis of the trial court's comment at the beginning of the second Miller hearing that the court "just concluded that some things had not been done that probably should have been done." The prosecutor contends that this comment added additional information about the trial court's reasoning, demonstrating that the court applied the wrong legal standard by disregarding the presumption that defense counsel rendered effective assistance and by failing to give proper deference to counsel's reasonable strategic decisions. We disagree.
Whether the law-of-the-case doctrine applies is a question of law that we review de novo. People v Zitka, 335 Mich.App. 324, 332; 966 N.W.2d 786 (2020). The law-of-the-case doctrine provides that once an appellate court has resolved a legal question and remanded the case for further proceedings, the legal question will not be differently determined in subsequent proceedings in the same case in which the facts remain materially the same. See Grievance Administrator v Lopatin, 462 Mich. 235, 259-260; 612 N.W.2d 120 (2000). "Two exceptions to the doctrine exist: (1) when the decision would preclude the independent review of constitutional facts and (2) when there has been an intervening change of law." Webb v Smith, 224 Mich.App. 203, 210; 568 N.W.2d 378 (1997). We have a "mandatory obligation to apply the doctrine when there has been no material change in the facts or intervening change in the law." Duncan v Michigan, 300 Mich.App. 176, 189; 832 N.W.2d 761 (2013).
The trial judge made the statement at issue at the beginning of the second Miller hearing during his informal explanation of the case's procedural history. Nothing about the context suggested that the purpose of the statement was to further justify a ruling clearly explained in a written order handed down more than a year earlier. See In re Contempt of Henry, 282 Mich.App. 656, 678; 765 N.W.2d 44 (2009) ("[A] court speaks through its written orders and judgments, not through its oral pronouncements."). Under these circumstances, we conclude that the statement at issue does not rise to the level of "additional information" regarding the trial court's decision, and we reject the prosecution's attempt to use an informal comment to advance the same issue already decided by this Court. Because the prosecution has established neither a change in the material facts nor a change in the law since this Court's denial of its delayed application on the ground that it lacked merit, our previous determination of the issue is the law of the case. See Duncan, 300 Mich.App. at 189.
III. TERM-OF-YEARS SENTENCE
The prosecution next argues that the trial court abused its discretion by resentencing defendant to a term-of-years sentence. We reluctantly disagree.
We review a trial court's decision to resentence a juvenile lifer for an abuse of discretion. See Skinner, 502 Mich. at 137. "A trial court abuses its discretion when it selects an outcome that was not in the range of reasonable and principled outcomes." People v Roberts, 292 Mich.App. 492, 503; 808 N.W.2d 290 (2011). The facts underlying the trial court's decision are reviewed for clear error. Skinner, 502 Mich. at 137 n 27. Clear error is present when the reviewing court is left with a definite and firm conviction that an error occurred. People v Fawaz, 299 Mich.App. 55, 60; 829 N.W.2d 259 (2012). A trial court also abuses its discretion when it makes an error of law or "operates within an incorrect legal framework." People v Everett, 318 Mich.App. 511, 516; 889 N.W.2d 94 (2017). "[A] given sentence can be said to constitute an abuse of discretion if that sentence violates the principle of proportionality, which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Milbourn, 435 Mich. 630, 636; 461 N.W.2d 1 (1990). See also Graham v Florida, 560 U.S. 48, 59; 130 S.Ct. 2011; 176 L.Ed.2d 825 (2010).
Recently, in People v Taylor, 510 Mich. 112; 987 N.W.2d 132 (2022), the Supreme Court articulated additional procedures and standards to be applied to juvenile LWOP proceedings under MCL 769.25. Specifically, the Supreme Court held that a rebuttable presumption exists against sentencing juveniles to LWOP, and that the prosecution, as the moving party, bears the burden to overcome this presumption by clear and convincing evidence. Taylor, 510 Mich. at 129. In addition, the Supreme Court explained that the Miller factors are not to be used as aggravators; if a particular Miller factor does not militate against LWOP, that factor will be considered neutral. Id. at 139 n 25. Even if the prosecutor rebuts the presumption, the trial court is not obligated to impose LWOP. Id.
The Miller proceedings in the present case occurred before Taylor was issued. Taylor imposes a higher burden on the prosecution and requires the trial court to view the Miller factors as either militating or neutral, so it would not impact our review here since the trial court granted a term of years sentence under a more lenient (towards defendant) standard.
Here, although we find Judge Johnston's analysis much more convincing, we simply cannot conclude that the court abused its discretion by resentencing defendant to a term of years. The prosecution first asserts that the trial court's finding that defendant "acted impulsively and irresponsibly throughout his adolescence, and likely did not fully appreciate the full consequences of his offense conduct" was clearly erroneous because it did not account for evidence indicating defendant's maturity at the time of the offense, such as defendant's moving back home and getting a job before his son was born. Although the trial court did not expressly address defendant's moving back home and getting a job in its written opinion, taking the record as a whole, we see no clear error in the trial court's finding that defendant "acted impulsively and irresponsibly throughout his adolescence," including immediately before the offense.
Clinical psychologist Dr. Jeffrey Kieliszewski, who testified at defendant's first Miller hearing, and Dr. Michael Caldwell, Psy.D., who submitted a psychological evaluation for defendant's second Miller hearing, noted that defendant left his family's home in 1996, but then moved back home before his son was born. Dr. Kieliszewski did not view defendant's moving back home and getting a job as evidence of maturity. To the contrary, Dr. Kieliszewski testified that defendant impulsively switching between trying to do the right thing, i.e., working and supporting his two children, and sliding into a substance-abuse lifestyle, partying, and trying to project a certain persona, were manifestations of defendant's emotional immaturity and impetuosity. Similarly, Dr. Caldwell indicated that, in the month leading up to the offense, defendant "lived in a 'party house' and lived a remarkably irresponsible and immature lifestyle." He was drinking, using marijuana heavily and trying other drugs, not eating or sleeping regularly, staying up with friends until he passed out, and sleeping no more than four hours a night, and he viewed basic life responsibilities like keeping a regular schedule or holding a job as "burdens that he resented and felt unable to fulfill."
The prosecution further asserts that the trial court's finding under the first Miller factor was erroneous because it resulted from the trial court's misinterpretation of evidence regarding defendant's mental status. Specifically, the prosecution asserts that defendant's "concocted claims of blackouts and other symptoms to support his claim of insanity" demonstrated that defendant appreciated the risks and consequences of his criminal behavior. The prosecution contends that defendant faked symptoms of dissociative disorder, then duped Dr. Steven Miller, defendant's expert in forensic clinical psychology at his second trial, into diagnosing him with the condition so that he could avoid the consequences of his actions by pleading insanity.
The trial court rejected this interpretation of events and noted that the theory of dissociative disorder found support in Dr. Caldwell's determination that, at the time of the offense, defendant likely suffered from "mild Dissociative Episodes," including "some mild depersonalization symptoms, in which he experienced his thoughts as external voices." In addition, defendant's sister testified that she had been diagnosed with dissociative disorder when she was 19 years old and had undergone therapy. Without evidence supporting its interpretation of events, we cannot adopt the prosecutor's theory regarding the origins of Dr. Miller's diagnosis of defendant's mental status at the time of the offense.
As to whether defendant "fully appreciate[d] the full consequences of his offense conduct," Dr. Caldwell reported that, although none of the effects of trauma on defendant's neurobiological maturation destined him to commit his offenses or excused his actions, they likely would have "substantially reduced" his capacity to, among other things, "rationally anticipate future consequences, and employ basic conventional problem-solving skills." Further, Dr. Kieliszewski testified that defendant reported that he intended to cause the infant pain and humiliation and to take out his frustrations on the infant, but he never intended to seriously hurt the infant, and he was surprised when the child died. Dr. Caldwell's observation, and defendant's report to Dr. Kieliszewski, if believed, support the conclusion that defendant did not "fully appreciate the full consequences of his offense conduct." While we may disagree with the court's conclusion, as did Judge Johnston after the initial Miller hearing, we cannot conclude, from the evidence presented at the second Miller hearing and from the trial court's interpretation of that evidence, that the trial court's findings with regard to the first factor were clearly erroneous. In other words, we are not left with a definite and firm conviction that the court erred in its finding that defendant "acted impulsively and irresponsibly throughout his adolescence, and likely did not fully appreciate the full consequences of his offense conduct." See Fawaz, 299 Mich.App. at 60.
The prosecution does not challenge the trial court's assessment of the second Miller factor, and the only challenge it raises regarding the remaining factors is to the comparative weight that the trial court gave them. The prosecution asserts that the trial court erred by giving too little weight in its overall analysis to the circumstances of the crime and defendant's ability to assist with his own defense, and too much weight to defendant's rehabilitation. We note that Judge Johnston, just a few months before defendant filed his motion for a second Miller hearing, and after presiding over defendant's trials, found the circumstances of the crime to be "horrific beyond description." After the subsequent Miller hearing, the trial court also acknowledged the abhorrent circumstances of the homicide offense, but noted that this Court "counseled against giving too much weight to the offense conduct." See Bennett, 335 Mich.App. at 426. The trial court also indicated that the incompetencies of youth did not affect defendant's interaction with authorities or his ability to assist in his defense, and that this factor weighed in favor of LWOP, but the court gave this factor little weight. Even if we agreed with the prosecution, which we would be inclined to do considering the horrific nature of defendant's offense, the specific weight to be attributed to the factor was within the trial court's discretion.
The record contains evidence of rehabilitation. Richard Stapleton, a highly qualified expert in prisoner disciplinary policies and procedures and department-wide operations followed by the Michigan Department of Corrections (MDOC), submitted a report for defendant's second Miller hearing. Stapleton outlined the MDOC disciplinary procedures, including changes to the procedures that occurred during defendant's incarceration; defendant's formal misconduct history; defendant's program and work assignment performance; and defendant's performance on the MDOC's risk-assessment tools. He concluded that defendant's low number of formal misconducts was a "a commendable achievement," and viewed defendant's 14 years at Level II security as "clear evidence of rehabilitation and development of personal responsibility and maturity." Stapleton described how defendant sought means of self-improvement, despite the limited opportunities available to him. He explained that the number and type of jobs that defendant had held was an important achievement, and he observed that the MDOC's risk-assessment tool, COMPAS, found defendant at low risk for violence and for recidivism. Stapleton concluded that defendant had "fully matured in prison" and that, during defendant's two decades of incarceration, "he has never been reported to have exhibited any indications of violent or assaultive behavior. He displays all indications of an individual who could be a responsible and productive member of society."
COMPAS is an acronym for Correctional Offender Management Profiling for Alternative Sanction. See Parole Information Project, "COMPAS Risk Assessments," available at <ir.lawnet.fordham.edu/compas/> (accessed May 1, 2024).
The record shows that the trial court considered each of the Miller factors, specified the aggravating and militating circumstances considered, and explained its reasons supporting the sentence imposed. See MCL 769.25(7). At defendant's sentencing hearing, the trial court observed that the task before it was a "hard call" because defendant had pieced together a "remarkable prison record," but the egregious nature of what happened weighed against "simply imposing the minimum sentence" allowed by law. For this reason, the trial court imposed a term-of-years sentence that required defendant to serve significantly more time before he would be eligible for parole. In light of the trial court's thorough analysis of the Miller factors, the record evidence supporting that analysis, and when actually applying the deferential standard of appellate review, we cannot conclude that the trial court abused its discretion by resentencing defendant to a term-of-years sentence.
But see People v Granger, unpublished per curiam opinion of the Court of Appeals, issued August 4, 2022 (Docket No. 355477), where the majority painstakingly examined the record to conclude that the trial court clearly erred in several of its factual findings, and therefore abused its discretion, in re-sentencing the juvenile defendant to LWOP. This was so despite that fact that the trial court issued a 39-page opinion, after a three-day evidentiary hearing, examining all the Miller factors. Id. (Sawyer, J., dissenting) at 1. De novo review of sentences is not permitted under Michigan law, especially when applying an abuse of discretion standard. See Skinner, 502 Mich. at 132.
Affirmed.
CHRISTOPHER M. MURRAY, J. (CONCURRING).
As Justice Antonin Scalia was known to say, if a judge objectively applies the law, there will inevitably be decisions containing results that do not square with one's personal views. For two interrelated reasons, this is one of those decisions. First, in what has resulted in effectively immunizing individuals under 19 who commit murder from receiving a sentence of life without parole, Michigan caselaw governing the sentencing of juveniles convicted of murder has gone beyond what is required by statute or the constitution. Second, as a result of that caselaw, individuals like Damon Jackson-who intentionally physically and sexually abused his one-month-old son David resulting in his death-can receive a term of years sentence and feel confident it will not be overturned on appeal. And although I am cognizant that an opinion concurring with an unpublished opinion will receive little (if any) attention in the annals of Michigan law, and that People v Taylor, 510 Mich. 112; 987 N.W.2d 132 (2022), has put tight clamps on trial courts resentencing defendants under 19 to LWOP, it is still worth explaining what current Michigan caselaw is, and how it has essentially foreclosed the statutory penalty of LWOP for those who commit murder when 18 or younger-even in these horrible circumstances.
<https://youtu.be/Tme4DEwGL3U\> (accessed April 26, 2024).
What compels my vote to affirm is a faithful adherence to the abuse of discretion standard, a standard that is very deferential to the trial court's decision. And here, in rendering its decision, the trial court made findings of fact under the appropriate factors. If we actually apply these meaningful standards of review, we must affirm this decision even if we would have concluded differently had we sat as the trial judge. See Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich. 219, 227; 600 N.W.2d 638 (1999) ("An abuse of discretion involves far more than a difference in judicial opinion.").
As will be explained below, in rendering its decision, the trial court placed significant weight on People v Bennett, 335 Mich.App. 409; 966 N.W.2d 768 (2021), both for its general statements on juvenile homicide sentencing, and its discussion diminishing the factor regarding the crime and its attendant circumstances. Though the trial court was not wrong to do so, as it is a published decision, Bennett (and some of the decisions it relied upon) contained several misstatements of controlling law.
I. THE EXPANSION OF MILLER DICTA INTO MICHIGAN LAW
The Court in Miller v Alabama, 567 U.S. 460, 479; 132 S.Ct. 2455; 183 L.Ed.2d 407 (2012), was very clear that its only holding was "that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Mandatory LWOP sentences were invalid, the Court concluded, because they prevented trial courts from considering several important factors:
To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him-and from which he cannot usually extricate himself-no matter how brutal or dysfunctional. It neglects 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. Indeed, it ignores that he might have been charged 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 finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it. [Id. at 477-478 (citations omitted).]
In Jones v Mississippi, 593 U.S. 98, 108-109; 141 S.Ct. 1307; 209 L.Ed.2d 390 (2021), the Court reiterated Miller's limited holding:
Stated otherwise, the Miller Court mandated "only that a sentencer follow a certain process-considering an offender's youth and attendant characteristics-before imposing" a life-without-parole sentence. In that process, the sentencer will consider the murderer's "diminished culpability and heightened capacity for change." That sentencing procedure ensures that the sentencer affords individualized "consideration" to, among other things, the defendant's "chronological age and its hallmark features." [Citations omitted.]
There can be no doubt that Miller's holding was only that mandatory statutory life sentences for those under 18 were invalid because they precluded individualized sentencing that considered the attributes of youth, and that sentencing courts must engage in a review of certain mitigating factors when determining if a life without parole sentence was warranted. As the en banc United States Court of Appeals for the Third Circuit recognized, "Miller did not 'impose a categorical bar against life without parole for murderers under 18.' Instead, Miller cited Roper and Graham for the proposition that '[y]outh matters in sentencing,' which requires 'that a sentencer [ ] have discretion to consider youth before imposing a life-without-parole sentence.'" United States v Grant, 9 F4th 186, 196 (CA 3, 2021) (citations omitted; alterations in original).
We recognized the limited holding of Miller more than a decade ago in People v Eliason, 300 Mich.App. 293, 309; 833 N.W.2d 357 (2013), remanded by People v Carp, 496 Mich. 440; 852 N.W.2d 801 (2014), acknowledging that the "limited holding in Miller was that a juvenile cannot be automatically subjected to a punishment of life imprisonment without the possibility of parole."
Roper v Simmons, 543 U.S. 551; 125 S.Ct. 1183; 161 L.Ed.2d 1 (2005), and Graham v Florida, 560 U.S. 48; 130 S.Ct. 2011; 176 L.Ed.2d 825 (2010).
As noted by Grant, there is a universal recognition that neither Miller nor Montgomery v Louisiana, 577 U.S. 190; 136 S.Ct. 718; 193 L.Ed.2d 599 (2016), categorically barred LWOP sentences. Grant, 9 F4th at 196-197. Likewise, neither decision imposed any requirement that a court only sentence a person under 18 (or 19 in Michigan) after a finding of "incorrigibility." See Jones, 593 U.S. at 105-106; People v Skinner, 502 Mich. 89, 121; 917 N.W.2d 292 (2018). In fact, no particular finding is required under MCL 769.25, Taylor, 510 Mich. 112, or under the federal constitution, Jones, 593 U.S. at 106, when sentencing someone to LWOP. What these decisions do require is taking into account the attributes of youth, as well as the crime and its attendant circumstances, when fashioning an individualized sentence.
Taylor's conclusion as to the statute seems at odds with MCL 769.25(7), which requires the trial court to "specify on the record the aggravating and mitigating circumstances considered by the court and the court's reasons supporting the sentence imposed."
Despite Miller's limited holding, what this Court in People v Hyatt, 316 Mich.App. 368; 891 N.W.2d 549 (2016), rev'd in part on other grounds by Skinner, 502 Mich. 89, People v Garay, 320 Mich.App. 29; 903 N.W.2d 883 (2017), rev'd in part on other grounds by 506 Mich. 936 (2020), and Bennett, 335 Mich.App. at 426, emphasized from Miller was Miller's dicta that LWOP sentences would likely be imposed (after application of the mitigating factors) only on those "uncommon" or "rare" juveniles who exhibit "irreparable corruption." By focusing on that and similar terminology, rather than on the application of the Miller factors that may or may not result in a LWOP sentence, the Court essentially directed trial courts to the improper understanding that LWOP sentences should only be imposed when a court finds the defendant to be irreparably corrupt. See Bennett, 335 Mich.App. at 420 ("While the Miller factors remain highly relevant, a judge resentencing an offender who has served many years in prison has the benefit of actual data regarding whether the offender's life in prison is truly consistent with 'irreparable corruption,' the only ground Miller specifically identified for imposing a life-without-parole sentence."), and 434 ("Indeed, the prosecutor introduced no evidence supporting that Bennett is 'irreparably corrupt.' 'Just as courts are not allowed to impose disproportionate sentences, courts are not allowed to sentence juveniles who are not irreparably corrupt to life without parole.' The resentencing court clearly erred by ignoring this constitutional mandate.") (citations omitted). Neither Miller nor Montgomery held as much.
Numerous courts have recognized that the statement in Miller that it will be the rare occasion when, after applying the factors, a person will still be subject to LWOP, was dicta. See State ex rel Mitchell v Cooper, 256 Ariz 1, 14; 535 P.3d 3 (2023) (recognizing this statement from Miller as dicta), and Phon v Commonwealth, 545 S.W.3d 284, 293 (Ky, 2018) (same).
In fact, as noted above, both the United States and Michigan Supreme Courts have held that there is no requirement that a court make a specific finding about a defendant being "irreparably corrupt," Skinner, 502 Mich. at 122 (holding "that Miller does not require trial courts to make a finding of fact regarding a child's incorrigibility"); Jones, 593 U.S. at 106 ("Miller did not impose a formal factfinding requirement" and . . . "a finding of fact regarding a child's incorrigibility ... is not required.") (quotation marks and citation omitted), and 108 ("[I]t comes as no surprise that Miller declined to characterize permanent incorrigibility as such an eligibility criterion."). The Jones Court could not have been clearer on this point:
In advancing that argument, Jones relies on language in Montgomery that described Miller as permitting life-without-parole sentences only for "those whose crimes reflect permanent incorrigibility," rather than "transient immaturity." In other words, because the Montgomery Court deemed Miller to be a substantive holding, and because Montgomery said that life without parole would be reserved for the permanently incorrigible, Jones argues that the Montgomery Court must have envisioned a separate factual finding of permanent incorrigibility, not just a discretionary sentencing procedure where youth would be considered.
That is an incorrect interpretation of Miller and Montgomery. We know as much because Montgomery said as much. To reiterate, the Montgomery Court explicitly stated that "a finding of fact regarding a child's incorrigibility . . . is not required." [Id. at 110 (citations omitted).]
This proposition is consistent with what the Michigan and United States Supreme Court have also stated: that a trial court need not articulate on the record any findings under the Miller factors. See People v Boykin, 510 Mich. 171, 191-192; 987 N.W.2d 58 (2022) ("Jones held that an on-the-record sentencing explanation of the Miller factors is not necessary in cases where a life-without-parole sentence is imposed . . . . We also find no requirement for an on-the-record articulation of how youth or the Miller factors affected a sentence in our caselaw"); Jones, 593 U.S. at 116-117 ("Because the Constitution does not require an on-the-record explanation of mitigating circumstances by the sentencer in death penalty cases, it would be incongruous to require an on-the-record explanation of the mitigating circumstance of youth by the sentence in life-without-parole cases.").
Of course, the Bennett Court did not have Jones, Boykin, or Taylor available to it, so that may explain why it erroneously emphasized the need for a finding by the trial court that the defendant was irreparably corrupt before it could impose LWOP. To the extent that Bennett stands for the proposition that a court must find the defendant to be irreparably corrupt (or something similar), it is inconsistent with these decisions. For, as Jones makes clear, it is the application of the Miller factors that will result in fewer LWOP sentences, not any overall legal precept against such sentences. See Jones, 593 U.S. at 119 ("Miller's discretionary sentencing procedure has resulted in numerous sentences less than life without parole for defendants who otherwise would have received mandatory life-without-parole sentences."); Grant, 9 F4th at 197 ("The Court's precedents only 'require a discretionary sentencing procedure,' which itself 'has indeed helped make life-without-parole sentences for offenders under 18 relatively rare.' "), and 193 ("The Miller bar on mandatory LWOP sentencing regimes is a prophylactic that entitles a juvenile homicide offender to a certain sentencing process, but not a particular sentencing outcome-a result that follows from the Supreme Court's decision in Jones[.].").
Though Hyatt had already recognized that neither Miller nor MCL 769.25 required a finding of any particular fact before imposing LWOP. Hyatt, 316 Mich.App. at 399.
All that being said, in light of the standards imposed on proceedings under MCL 769.25 by Taylor, our prior cases may no longer be overly relevant. Specifically, the Taylor Court held that a rebuttable presumption exists under the statute against sentencing those under 19 to LWOP, and that the prosecution, as the moving party, bears the burden to overcome this presumption by clear and convincing evidence. Taylor, 510 Mich. at 129. In addition, the Supreme Court reiterated that the Miller factors are not to be used as aggravators; if a particular Miller factor does not militate against LWOP, that factor will be considered neutral. Id. at 139 n 25. Even if the prosecutor rebuts the presumption, the trial court is still not obligated to impose LWOP. See id. Under Taylor, 510 Mich. at 139 n 25, all Miller factors are mitigating or neutral; they are not aggravating.
Though of course the legislature indicated that a court should consider both mitigating and aggravating circumstances. MCL 769.25(7).
Whatever the merits of Taylor, it is binding. And, coupled with the caselaw from this Court that strayed from the actual holding of Miller and its progeny, we are left with a system whereby the circumstances of the murder can at best be considered "neutral" (despite MCL 769.25 allowing the court to consider aggravating circumstances as well as mitigating ones), simply because a defendant was under 19 when he committed the murder. This holds true even in a case like this, where the crime committed was, all agree, unfathomable.
II. DEFENDANT'S CRIME
The trial court gave little weight in its overall analysis of "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." Taylor, 510 Mich. at 126. In addressing this third Miller factor, the trial court acknowledged the abhorrent circumstances of the homicide, but noted that this Court "counseled against giving too much weight to the offense conduct." See Bennett, 335 Mich.App. at 426. The trial court also indicated that the incompetencies of youth did not affect defendant's interaction with authorities or his ability to assist in his defense, and that this factor weighed in favor of LWOP, but again the court gave this factor little weight.
The trial court held this second Miller hearing after finding that defense counsel was ineffective during the first Miller hearing. But, as the prosecution argues, the trial court seems to have engaged in much second-guessing of counsel's decisions, which would be inconsistent with the appropriate deference given to counsel's strategic decisions. As the majority also notes, the court's later off-the-cuff statements about how it ruled do not fall within the exception to the application of the law-of-the-case doctrine. Nevertheless, the trial court's ultimate conclusion is hard to swallow, particularly in light of Judge Johnston's statement at the end of the first Miller hearing that "[t]his case has been extremely well prepared by very able counsel. The briefing has been excellent. The factual presentation has been top-notch. The arguments have been exceptionally high caliber."
The trial court limited the significance of David's horrific murder in light of Bennett's statement that "[n]early every situation in which a sentencing court is asked to weigh in on the appropriateness of a life-without-parole sentence will involve heinous and oftentimes abhorrent details. After all, the sentence can only be imposed for the worst homicide offenses. However, the fact that a vile offense occurred is not enough, by itself, to warrant imposition of a life-without-parole sentence." Bennett, 335 Mich.App. at 426, quoting Hyatt, 316 Mich.App. at 420-421.
That premise may be true, i.e., every case involving a LWOP sentence results from a homicide, all homicides are bad, and that factor alone cannot carry the day in imposing a LWOP sentence. But that premise also cannot then be used to diminish the nature and circumstances of the crime, particularly in a case like this. If that were not the case, Miller would not have listed the circumstances of the crime as a factor to consider, and would have simply precluded all LWOP sentences for those under 18, as it did in other decisions; but it clearly did not. See Miller, 567 U.S. at 483 ("Our decision does not categorically bar a penalty for a class of offenders or type of crime-as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process-considering an offender's youth and attendant characteristics-before imposing a particular penalty."). See also State v Soto-Fong, 250 Ariz 1, 7; 474 P.3d 34 (2020).
In other words, it is true that all homicides are horrible, but as Miller and its progeny make clear, one of the five factors under Miller to consider in providing an individualized sentence is the nature of the crime and the defendant's involvement in it, for there are differences in crimes and the circumstances surrounding them. As Miller itself acknowledged, there is a difference in kind between a young defendant who was pressured by friends or family into doing something that indirectly led to a murder, and a defendant who deliberately kills someone without any pressure to do so:
Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other-the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14-year-olds) will receive the same sentence as the vast majority of adults committing similar homicide offenses-but
really, as Graham noted, a greater sentence than those adults will serve. [Miller, 567 U.S. at 476-477].Bennett's attempt to diminish this factor on the basis that all homicides are equally bad requires ignoring Miller's commands. Id. at 477 (mandatory sentences "neglect[] 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").
Of course now, under Taylor, even if the circumstances of the crime show intentional misconduct without any evidence of peer pressure, the factor is to be given neutral weight.
In light of the expansive language used in Bennett, the trial court found that the circumstances of the crime only "slightly favored" a LWOP sentence. This conclusion was made despite the following undisputed facts:
1. On the day of the main abuse, defendant did not want to take David-instead, he wanted to get high smoking marijuana-because he had previously shaken David, held his hand over his mouth to try to keep him quiet, and "hated his son."
2. At the time, defendant was upset at David's mother, as she did not name David after him, and she had refused to have sex with defendant.
3. After agreeing to watch David, David starting crying, so defendant held David tight, so much so that he could not breathe, and forced David to hold his breath.
4. Defendant took David into the bathroom so no one would hear him, and once there, forced David to engage in oral sex. Defendant's explanation for this decision:
I remember thinking, fine, Damon, if you're not going to call Holly, why not masturbate, and then I thought, "You have David." Now, anal sex, I've always thought it was disgusting and I wouldn't even do it with a girl. But I'm real big on oral sex, and I was always trying to get Holly to do it. She wouldn't. I remember thinking, or hearing, "Why not have David do it?"
5. Then, while calling David "lots of mean things," defendant forced David's mouth open, held his head from behind, forced his penis into David's mouth, and ejaculated.
6. Defendant then dropped David on the floor, where David coughed and tried to breathe. At the same time, he asked David whether he wished his mother had named him Damon.
7. While David was still crying and trying to breathe, defendant carried David by his throat into the kitchen. There, David began to start and stop breathing, and then went limp. At trial defendant explained his next horrific steps:
David started to act up with his breathing. He would breath [sic] and stop for a few seconds. Finally, he stopped. I hit him and he breathed. Then I went on for some - - this went on for some time. Finally he went limp, I thought he was dead. He didn't breath [sic] for some quite some times [sic], ten seconds. I panicked. I would hit him but no response. I pinched his leg, nothing. I finally thought to pinch his penis. I know that it would hurt and I'd get a reaction. Well, he didn't react so then, I don't know why, but I thought of how much pain it had been to me when my cousin screwed me up the butt. It hurt like held [sic]. So, I grabbed an ink pen. I [sic] didn't do anything. Then I remember the plunger I seen in the bathroom. I went and grabbed it, put some grease on it and inserted it anally. It got a good response so I took it out, wiped it off and put it back.
8. When David gained consciousness, defendant started to hit David out of anger.
These unconscionable acts were intentional, and not the result of "youthful indiscretion" or "peer pressure." Our prior opinion forecloses that conclusion:
We believe that given the seriousness of the charges, this appreciation of the criminality of his actions also implies an understanding that society would consider this conduct immoral or wrongful. This conclusion is supported by defendant's admission that he could control his conduct when in front of other people. "I can control this in front of people," defendant acknowledged. "I mean, like I said, I'm not a stupid person. I know what you can and cannot do." We believe this clearly indicates that defendant understood the pervasive societal prohibition against such conduct.
Defendant's candid acknowledgment that he could and did control his behavior in public also shows that he possessed the substantial capacity to conform his conduct to the requirements of the law. As the trial court noted, no evidence was presented showing that defendant ever harmed his son in the presence of others. We believe his ability to restrain himself until the threat of immediate detection by others had passed evidences a capacity to conform well beyond the ephemeral. In fact, defendant's declaration that he could control himself in front of others evidences a level of capacity to refrain that rises to and beyond being substantial. Defendant also admitted that he took his son to the bathroom on the night when the charged acts occurred precisely because he did not want others in the house to hear what was going on. This kind of purposeful behavior to avoid discovery only further confirms the conclusion that defendant had an appreciable ability to stop himself when he chose to do so. [People v Jackson, 245 Mich.App. 17, 25; 627 N.W.2d 11 (2001).]
As the original trial judge, Judge Donald Johnston, defendant's counsel for both trials and the first Miller hearing, and the current trial court all acknowledged-this was one of, if not the worst, crime each had seen over decades of experience. Indeed, Judge Johnston, a Kent Circuit judge for more than two decades, opined that it was about the worst of the worst. Yet, under the precedent established by Hyatt, Garay and Bennett, the trial court felt free to reduce the significance of these intentional acts. Why? According to the trial court, because Bennett counseled that all homicides are bad, so the seriousness of the crime does not add much to the mitigating factors to be considered. And, to a large extent, the court was correct about what Bennett says.
But in the end these decisions come down not to simple fact-finding, but a moral judgment as to whether the mitigating and aggravating factors entitle a defendant to a lesser sentence. See Skinner, 502 Mich. at 116 n 11 (a "trial court's decision to impose life without parole after considering the mitigating and aggravating circumstances is not a factual finding, but a moral judgment"); Kansas v Carr, 577 U.S. 108, 119; 136 S.Ct. 633; 193 L.Ed.2d 535 (2016) ("Whether mitigation exists . . . is largely a judgment call (or perhaps a value call); what one juror might consider mitigating another might not. And of course the ultimate question whether mitigating circumstances outweigh aggravating circumstances is mostly a question of mercy-the quality of which, as we know, is not strained."). For the reasons explained by Judge Johnston when resentencing defendant to LWOP after the first Miller hearing, the correct moral judgment was to sentence defendant to life without parole. But, as I said at the start of the opinion, the abuse of discretion standard precludes substituting my judgment for that expressed by the trial court when that decision falls within the range of principled outcomes. Under our current state of the law, it does.