Opinion
353182
06-22-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DARNELL RUSH, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-004021-01-FC
Before: Boonstra, P.J., and Cavanagh and Riordan, JJ.
ON REMAND
Per Curiam
Defendant, who was 21 years old at the time of the offenses, was convicted by jury trial of first-degree felony murder, MCL 750.316(1)(b), armed robbery, MCL 750.529, mutilation of a dead body, MCL 750.160, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life imprisonment without parole (LWOP) for the first-degree murder felony conviction, as well as prison terms of 10 to 60 years for the armed robbery conviction, 5 to 10 years for the mutilation of a dead body conviction, and 2 years for the felony-firearm conviction. Defendant appealed by right his convictions and sentences, and this Court affirmed. See People v. Rush, unpublished per curiam opinion of the Court of Appeals, issued January 13, 2022 (Docket Nos. 353182 and 353184) (Rush I), rem'd in part, lv den in part 982 N.W.2d 179 (Mich, 2022). Defendant applied for leave to appeal this Court's decision to our Supreme Court. The Supreme Court, in lieu of granting leave to appeal, entered an order remanding the case to this Court for consideration of the constitutionality of defendant's LWOP sentence in light of People v. Parks, 510 Mich. 225; 987 N.W.2d 161 (2022), and denying leave to appeal in all other respects. People v. Rush, 982 N.W.2d 179 (Mich, 2022) (Rush II).
Defendant's appeal was consolidated with the appeal of codefendant Carlos Thomas, and this Court affirmed Thomas's convictions and sentences in the same opinion. Later, after our Supreme Court remanded defendant's appeal to this Court, an order was entered vacating the April 8, 2020 order consolidating the appeals because Thomas's appeal is now concluded. People v. Rush, unpublished order of the Court of Appeals, entered January 13, 2023 (Docket No. 353182).
On remand, this Court granted defendant's motion to allow supplemental briefing.Defendant filed a supplemental brief on March 7, 2023. The prosecution has not filed a supplemental brief. We now consider the issue of the constitutionality of defendant's LWOP sentence as directed by our Supreme Court, and affirm that sentence.
See People v. Rush, unpublished order of the Court of Appeals, entered January 17, 2023 (Docket No. 353182).
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This Court's opinion in Rush I contains a summary of the factual background of the case:
[Defendant's and codefendant Carlos Thomas's] convictions arise from their participation with at least three accomplices in the fatal shooting of Christopher Thompson (Thompson) during an armed robbery. Thompson was shot while sitting inside his GMC Yukon that was parked in the driveway of a Detroit home during the early morning hours of January 3, 2018. Demonte Foster (Foster) testified that on the night in question, he observed expensive-looking wheel rims on the tires of Thompson's Yukon, and called another accomplice, Jarrin Larry (Larry), to meet him, saying he wanted to rob "[t]he guy in the truck." Foster testified that he, Thomas, Larry, and two other men, Ralph Scott (Scott) and Jacarta Jennings (Jennings) met near Thompson's vehicle and that Larry was armed with a firearm. Larry, however, denied ever being armed with a firearm during the robbery. Foster testified that [defendant], Thomas, and Larry walked toward Thompson's truck to carry out the robbery. However, Larry testified that [defendant], Thomas, and Scott were the three men who approached Thompson's vehicle. Both witnesses testified that they heard at least one gunshot and that the group then fled the scene. Both witnesses also testified that, after Thomas expressed concern about possible identification evidence being left at the scene, the group returned to the scene and three of them used gasoline to set Thompson's truck on fire with Thompson still inside. Foster testified that [defendant], Thomas, and Larry set the fire; while Larry testified that it was [defendant], Thomas, and Scott who did so. An autopsy revealed that Thompson died from two gunshot wounds, one to the neck and one to the chest. Surveillance video collected by police showed three men approach Thompson's truck, although it did not capture any shooting. The recording also showed three men on foot returning a short time later and lighting Thompson's vehicle on fire.
The jury convicted [defendant and Thomas] as described. These appeals followed. [Rush I, unpub op at 2.]
In his first appeal, defendant argued that there was insufficient evidence to support his conviction of first-degree felony murder, or alternatively that the verdict was against the great weight of the evidence. This Court disagreed. Id. at 3-5.
Defendant also argued that, because he was 21 years old "at the time of the offense, the imposition of the statutory sentence of mandatory life imprisonment without parole violates the Eighth Amendment because mitigating factors of youth were not considered." Id. at 5. Defendant "contend[ed] that the statutorily-mandated sentence constitutes cruel and unusual punishment in violation of the federal constitution because the principles cited by the United States Supreme Court in Miller v. Alabama, 567 U.S. 460; 132 S.Ct. 2455; 183 L.Ed.2d 407 (2012), for prohibiting mandatory life sentences without parole for juvenile offenders apply in this case." Id. at 5-6. Defendant "cite[d] nonbinding secondary authority and scientific research suggesting that the same hallmarks of immaturity that mitigate against mandatory life without parole sentences for juveniles continue to affect young adults, whose brains remain in developmental stages well into their twenties." Id. at 6. In rejecting defendant's argument, this Court noted that "the Miller Court's prohibition against mandatory life without parole sentences for juveniles rested on caselaw that recognized that the attainment of the age of majority (i.e., 18 years of age) is significant in American society and its criminal justice system." Id. This Court quoted language from Roper v. Simmons, 543 U.S. 551, 574; 125 S.Ct. 1183; 161 L.Ed.2d 1 (2005), noting that society generally draws the line at the age of 18 to distinguish juveniles from adults. Rush I, unpub op at 6.
Defendant further argued that his life-without-parole "sentence under MCL 750.316(1) violates the state constitutional prohibition against cruel or unusual punishment." Id. This Court noted that "[o]ur Michigan Supreme Court has previously concluded otherwise." Id., citing People v. Hall, 396 Mich. 650, 657-658; 242 N.W.2d 377 (1976). "Even if this Court found [defendant's] arguments persuasive, Hall remains binding authority on this point. Consequently, [defendant] has not established that he is entitled to resentencing on his felony-murder conviction at this time." Rush I, unpub op at 6. This Court acknowledged that Parks was pending in the Michigan Supreme Court on the question whether Miller should be extended to defendants who were over the age of 17 at the time of their offense. Id. at 6 n 10. This Court stated, "We decline to speculate on the outcome of Parks or its effect on [defendant's] claims for resentencing, and make our determination based only [on] the current state of the law." Id. This Court affirmed defendant's convictions and sentences as described. Id. at 2, 16.
While defendant's application for leave to appeal Rush I to our Supreme Court was pending, the Court issued its opinion in Parks, "hold[ing] that Michigan's sentencing scheme mandating that 18-year-old defendants convicted of first-degree murder receive a sentence of life imprisonment without the possibility of parole is cruel or unusual punishment under Const 1963, art 1, § 16." Parks, 510 Mich. at 265-266. Our Supreme Court later remanded this case as described. Rush II, 982 N.W.2d at 179.
II. STANDARD OF REVIEW
Defendant raised the issue of the constitutionality of his LWOP sentence before the trial court; this issue is therefore preserved. See People v. Clark, 315 Mich.App. 219, 223-224; 888 N.W.2d 309 (2016). We review de novo preserved constitutional issues. People v. Harris, 499 Mich. 332, 342; 885 N.W.2d 832 (2016).
III. ANALYSIS
Defendant argues that his mandatory LWOP sentence constitutes cruel and unusual punishment in violation of the Michigan Constitution in two respects. First, defendant argues that the imposition of a mandatory LWOP sentence, without consideration of mitigating factors, on a 21-year-old defendant is cruel and unusual. Second, defendant argues that the imposition of a mandatory LWOP sentence for a felony murder conviction on an aiding and abetting theory is cruel is and unusual. We disagree with both arguments.
"Statutes are presumed to be constitutional, and the courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent." People v. Benton, 294 Mich.App. 191, 203; 817 N.W.2d 599 (2011), lv den 491 Mich. 917 (2012) (quotation marks and citation omitted). "It is the burden of the party challenging the constitutionality of the statute to prove its invalidity." People v. Adamowicz (On Second Remand),___ Mich. App___, n 1;___ N.W.2d___ (2023) (Docket No. 330612); slip op at 3 n 1. "The Michigan Constitution prohibits cruel or unusual punishment, Const 1963 art 1, § 16, whereas the United States Constitution prohibits cruel and unusual punishment, U.S. Const, Am VIII." Benton, 294 Mich.App. at 204. "If a punishment passes muster under the state constitution, then it necessarily passes muster under the federal constitution." Id. (quotation marks and citation omitted).
MCL 705.316 provides that, absent certain exceptions, a person convicted of first-degree murder "shall be punished by life imprisonment for life without eligibility for parole." MCL 705.316(1). This mandatory sentence does not apply if a defendant was less than 18 years old at the time the offense was committed. See MCL 705.316(2)(a); MCL 769.25(1); MCL 769.25a. In Parks, 510 Mich. at 265-266, our Supreme Court held "that Michigan's sentencing scheme mandating that 18-year-old defendants convicted of first-degree murder receive a sentence of life imprisonment without the possibility of parole is cruel or unusual punishment under Const 1963, art 1, § 16." The Supreme Court in Parks ordered that 18-year-old defendants be given the benefit of the procedure outlined in MCL 769.25 for defendants convicted of first-degree murder for acts committed while under the age of 18, which includes individualized consideration of potential mitigating characteristics. See Parks, 510 Mich. at 267 (requiring that "the prosecutor move to sentence these defendants to life without parole under the procedure outlined in the statute and that the sentencing court provide these defendants with a Miller hearing before deciding to sentence them to life without parole"). As stated, our Supreme Court has remanded defendant's case for this Court to consider the constitutionality of his sentence in light of Parks.
A. DEFENDANT'S AGE AND COGNITIVE DEVELOPMENT
Defendant argues that a mandatory LWOP sentence for a defendant who was 21 years old at the time of the offense is cruel or unusual punishment because of ongoing brain development in late adolescence. This Court has recently rejected such an argument.
In Adamowicz,___ Mich.App. at___; slip op at 3, this Court held "that under the Michigan Constitution it was not cruel or unusual punishment to sentence defendant, who indisputably was 21 at the time he committed first-degree premeditated murder, to the mandatory sentence of life without the possibility of parole that the Legislature determined is warranted for this crime." This Court noted that our "Supreme Court has already upheld the constitutionality of a sentence of life imprisonment without the possibility of parole imposed upon an adult for the crime of first-degree murder." Id. In Hall, our Supreme Court held that a mandatory LWOP sentence for first-degree felony murder did not constitute cruel or unusual punishment in violation of the Michigan Constitution. Hall, 396 Mich. at 657-658; Adamowicz,___ Mich.App. at___; slip op at 3-4. This Court noted in Adamowicz:
Hall has not been reversed or modified since its issuance. We are therefore bound to apply its holding and that holding precludes defendant's argument. Associated Builders & Contractors v. Lansing, 499 Mich. 177, 191; 880 N.W.2d 765 (2016). Importantly, the Parks Court conceded that it was not altering the holding in Hall to the extent it applied to defendants over the age of 18. Parks, 510 Mich. at 255 n 9 ("our opinion today does not affect Hall's holding as to those older than 18."). [Id. at 4.]Therefore, this Court in Adamowicz concluded that Hall definitively resolved the issue. Id. Nonetheless, in order to comply with our Supreme Court's remand order, this Court examined the factors set forth in People v. Lorentzen, 387 Mich. 167; 194 N.W.2d 827 (1972), and determined that a mandatory sentence of life imprisonment without the possibility of parole for 21-year-olds convicted of first-degree murder was not unconstitutional under Const 1963, art 1, § 16. Adamowicz,___ Mich.App. at___; slip op at 4-9. This Court concluded:
In the end, we rely on Hall to hold that defendant's sentence to lifetime imprisonment without the possibility of parole is constitutional under art 1, § 16 of the 1963 Constitution. But even if Hall was not binding, under our analysis of the Lorentzen factors, we would still hold that defendant's sentence was facially constitutional, as well as constitutional as applied to him. [Id. at 9.]
Like the defendant in Adamowicz, defendant was 21 years old when he committed the offense. This Court is bound by Hall and Adamowicz to reject defendant's argument that his mandatory sentence of life imprisonment for first-degree murder is cruel or unusual punishment. Accordingly, we conclude that defendant's LWOP sentence did not constitute cruel or unusual punishment due to defendant's age at the time of the offense.
We conclude that a detailed analysis of the Lorentzen factors is not necessary; the analysis in Adamowiscz may be readily applied to this case, should that application prove necessary. Apart from our determination that Hall conclusively determines this issue, we note that almost all of defendant's arguments concerning his age involve characteristics applicable to 21-year-olds generally, as opposed to characteristics specific to defendant. The only arguable exception is that, in discussing the susceptibility of late adolescents to peer pressure, defendant says that his "case is an illustration: he was the youngest of seven individuals who all acted together; he was uniquely susceptible to the influence of others; and he was unable to fully appreciate the risks and consequences of his actions." Defendant does not specify whether his constitutional challenge is facial or as-applied, and fails to "set forth the differing standards governing a facial and an as-applied constitutional challenge." Adamowicz,___ Mich.App. at___ n 1; slip op at 3 n 1. It appears that defendant's challenge is facial; in any event, to the extent defendant is making an as-applied challenge, it would fail "[i]n light of the gravity of the crime and the severity in which he committed it . . . ." Adamowicz,___ Mich.App. at___ n 10; slip op at 9 n 10. "An as-applied constitutional challenge is based upon the particular facts surrounding defendant's conviction and sentence." Id. Defendant was one of three individuals who approached the victim's vehicle to rob him. Gunshots were fired, striking the victim's neck and chest, which is what caused his ultimate death. After fleeing, the group later returned and defendant, along with two other individuals, set the victim's vehicle on fire, with the victim inside. Given defendant's level of involvement, the gravity of the crime, and the severity with which it was committed, this Court "cannot conclude that a lifetime sentence without the possibility of parole violates the state constitutional prohibition of cruel or unusual punishment. The sentence is proportionate to the crime defendant committed." Id.
B. AIDING AND ABETTING THEORY
Defendant further argues that, "[i][n addition to his reduced culpability due to his age and still-developing brain, [his] role in the offense renders his sentence cruel or unusual under Const 1963, art 1, § 16." That is, defendant contends that a mandatory LWOP sentence for aiding and abetting felony murder is cruel or unusual. This argument is arguably outside the scope of the remand in this case; although Parks concerned a defendant who had been convicted of first-degree murder on an aiding and abetting theory, the Supreme Court in Parks was not faced with a challenge to the defendant's LWOP sentence based on his role in the offense. The Parks Court did note that the defendant's conviction was "based on a theory of aiding and abetting his cousin" and that defendant "was not the principal actor in this particular murder." Parks, 510 Mich. at 256. And, in a footnote responding to the dissent, the majority opinion did state that "a defendant's status as an aider and abettor is undoubtedly relevant in the punishment context." Id. at 260 n 13. Nonetheless, Parks's holding was based on the defendant's age and applied to all 18-year-old defendants convicted of first-degree murder and mandatorily sentenced to LWOP. Id. at 268. Parks therefore does not appear to have added to, replaced, or altered the existing rule of law concerning this issue, and because we were tasked with specifically reviewing defendant's LWOP sentence in light of Parks, we could consider this issue to be outside the scope of our authority on remand. See People v. Canter, 197 Mich.App. 550, 567; 496 Nw2d 336 (1992) ("When a case is remanded by an appellate court, proceedings on remand are limited to the scope of the remand order.").
In any event, defendant's argument concerning this issue is foreclosed by binding caselaw. Our Supreme Court has held "that neither the Eighth Amendment nor Const 1963, art 1, § 16 categorically bars the imposition of a sentence of life without parole on . . . a juvenile convicted of felony murder on the basis of an aiding-and-abetting theory." People v. Carp, 496 Mich. 440, 528; 852 N.W.2d 801 (2014), vacated on other grounds and remanded sub nom Carp v. Michigan, 577 U.S. 1186; 136 S.Ct. 1355; 194 L.Ed.2d 339 (2016), and sub nom Davis v. Michigan, 577 U.S. 1186; 136 S.Ct. 1356; 194 L.Ed.2d 339 (2016). See also People v. Bills, 53 Mich.App. 339, 357; 220 N.W.2d 101 (1974), remanded on other grounds sub nom People v. Dancer, 396 Mich. 802 (1976) (rejecting a defendant's argument "that a mandatory sentence of life imprisonment for felony murder is unconstitutional as cruel and unusual punishment" as applied to an aider and abettor). Therefore, defendant has not established that a mandatory LWOP sentence for aiding and abetting felony murder constitutes cruel or unusual punishment under either the state or federal constitutions.
This Court recently reached the same conclusion after our Supreme Court specifically directed us to consider the issue of whether a mandatory LWOP sentence for aiders and abettors of felony murder was unconstitutional. See People v. Taylor (On Remand), unpublished per curiam opinion of the Court of Appeals, issued March 9, 2023 (Docket No. 325834), lv pending. In Taylor, this Court noted that our Supreme Court's decision in Carp was vacated with respect to its ruling that Miller was not retroactive. Other aspects of Carp, such as its holding with respect to aiders and abettors, remain controlling. Id. at 11. We agree with the reasoning of Taylor. People v. Green, 260 Mich.App. 710, 720 n 5; 680 N.W.2d 477 (2004) (noting that unpublished opinions of this Court are not binding precedent but may be persuasive). And we note that Carp has subsequently been cited for principles of law unrelated to the retroactivity of Miller, by both our Supreme Court, People v. Stovall, 510 Mich. 301, 316-317; 987 N.W.2d 85 (2022), and this Court, People v. Williams, 328 Mich.App. 408, 413; 938 N.W.2d 42 (2019).
Affirmed.