MURRAY

Limited on Constitutional Grounds
M.C.L.A. §§ 769.1(1)(g), 791.234(6)(a)Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Arthur J. Cotter, Prosecuting Attorney, and Elizabeth A. Wild, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Jonathan Sacks) for defendant.

Before: GLEICHER, P.J., and O'CONNELL and MURRAY, JJ.

Opinion of the Court

MURRAY, J.

Defendant appeals as of right his convictions for first-degree premeditated murder, MCL 750.316(1)(a), and possession of a firearm during the commission of a felony, MCL 750.227b(1). Defendant, who was 14 years old at the time he committed these crimes, was sentenced to mandatory life in prison without the possibility of parole for his first-degree murder conviction and two years' imprisonment for his felony-firearm conviction. We affirm defendant's convictions but remand for resentencing on his first-degree premeditated murder conviction in accordance with this opinion.

I. FACTS

The material facts of this case were essentially undisputed, and at trial those facts revealed the following course of events. On March 5, 2010, defendant, along with his sister, went to spend the weekend at the home of Jean and Jesse “Papa” Miles, their grandmother and step-grandfather. Defendant often spent weekends at his grandparents' home. Jean described defendant as a “good grandson,” and testified that she and Jesse had always been involved in defendant's life. She explained that defendant had a “good” relationship with her and Jesse, and that nothing appeared to be out of the ordinary during this particular weekend.

On March 6, 2010, defendant's sister returned to their father's home while defendant remained at his grandparents' house. Jean saw defendant during the evening and briefly spoke with him when he came downstairs to use the restroom; defendant did not at the time appear angry or upset. At approximately 7:30 p.m. that evening, Jean went to her bedroom to watch television; Jesse was in the living room, where he slept, watching television. Defendant was in an upstairs bedroom.

Jean awoke at approximately 3:00 a.m. the next morning when she heard a “pop.” Upon awakening, she heard defendant's voice, and thought defendant told her, “I shot Papa.” The next thing she remembered was that she had a gun in her hands; she could not recall whether defendant gave her the gun or whether she picked it up. After discovering what happened, she instructed defendant to call 9–1–1, and paramedics responded to the call but were unable to save Jesse.

Michigan State Police Trooper Brenda Kiefer and Deputy Eugene Casto of the Berrien County Sheriff's Department responded to the scene and arrested defendant. Kiefer initially interviewed defendant at the home; she read defendant his Miranda warnings and defendant agreed to waive his rights and to speak to her without having a parent present. Defendant told Kiefer that late in the evening on March 6 or early in the morning on March 7, he went downstairs to get a handgun that Jesse kept on the hook of a coat rack. Afterwards, defendant went back up to his room and sat in a chair with the gun for approximately two to three hours. While he sat upstairs with the gun, defendant “was contemplating homicide or suicide.” Defendant told Kiefer that he went downstairs and shot Jesse with the handgun while he was sleeping on the couch. Although defendant told Kiefer that he shot Jesse out of “sadness” and “pent up anger,” he was not angry with Jesse or Jean, but instead was angry with his own parents.

Defendant also spoke with Casto on the night of his arrest as defendant sat in Casto's patrol car. Among other things, defendant informed Casto that he neglected to tell Kiefer about two knives he had placed in the living room near the staircase, and that he realized that his “life just turned into Law & Order, but without commercials.” Additionally, in referencing the killing, defendant stated, “[y]ou know I wish I could take it back but now I understand the feeling that people get when they do that. Now I understand how they feel.” Continuing, defendant commented to Casto about the feeling, “when you hit that point of realization for that split second you feel like nothing could ever hurt you. Just for that split second. Once you realize what you've done.” Defendant also described to Casto a paper his father, Steven Eliason, had written for a criminology class about various forms of execution.

Shortly thereafter, defendant was brought to a police station for interrogation by Detective Fabian Suarez. With everyone's permission, Eliason was present during some portions of the interview, but was not in the same room as defendant and Suarez for the entire interview. During the interview, Eliason and defendant acknowledged that they understood the Miranda warnings and defendant agreed to waive his rights. Defendant explained to Suarez that he had not slept much before the shooting, and that he shot Jesse after taking the loaded handgun from the coat rack. He could not explain why he shot Jesse, and indicated that Jesse never harmed him physically or emotionally. However, defendant indicated that he was contemplating either committing suicide or shooting Jesse that night, but decided to kill Jesse because he was not ready to die. And, in a sense admitting to a self-awareness of his actions, defendant stated that at one point he thought to himself, “what am I doing, why do I have to do this, why do I have the gun, I know better than this....”

As to the shooting, defendant was in the living room looking at Jesse for approximately 45 minutes trying to decide what to do before he shot Jesse. Defendant then aimed the gun at Jesse from approximately seven feet away and pulled the trigger, shooting him in the head. Defendant had not previously considered hurting Jesse, but “[s]omething snapped” that night because everything he had been thinking of that evening “just buil[t] up to the point that you don't know what you're doing.” According to defendant he “blacked out for a couple minutes” before he shot Jesse.

With these essential facts in mind we now turn to defendant's challenges to his convictions and sentences.

II. ANALYSIS

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that he was denied the effective assistance of trial counsel because his trial counsel should have presented an expert witness to rebut testimony offered by the prosecution that he lacked remorse after the shooting. At a Ginther hearing on this matter, Dr. James Henry testified that defendant experienced significant emotional trauma before the shooting and that this caused him to dissociate from reality. As a result, defendant often had trouble expressing his feelings, including remorse. Defendant contends that his trial counsel was ineffective for failing to call an expert witness, such as Dr. Henry, to explain his alleged lack of remorse.

A defendant is denied the effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution if “counsel's performance fell below an objective standard of reasonableness ... [and] the representation so prejudiced the defendant as to deprive him of a fair trial.” People v. Pickens, 446 Mich. 298, 309, 521 N.W.2d 797 (1994). This Court presumes that trial counsel was effective, and in order to show that counsel's performance fell below an objective standard of reasonableness, a defendant must overcome the strong presumption that his counsel's conduct constituted reasonable trial strategy. People v. Carbin, 463 Mich. 590, 600, 623 N.W.2d 884 (2001). “An attorney's decision whether to retain witnesses, including expert witnesses, is a matter of trial strategy.” People v. Payne, 285 Mich.App. 181, 190, 774 N.W.2d 714 (2009).

Defendant cannot overcome the presumption that his trial counsel's decisionnot to call an expert witness was the product of trial strategy. Rather than calling an expert witness, defendant's trial counsel attempted to rebut the prosecution's arguments that defendant lacked remorse by impeaching witnesses who testified that defendant lacked remorse, and highlighting evidence that arguably showed defendant did have remorse. This Court will not second-guess trial counsel's strategy to rebut the evidence in this manner rather than calling an expert witness. People v. Cooper, 236 Mich.App. 643, 658, 601 N.W.2d 409 (1999). Just as importantly, we cannot conclude that defendant's trial counsel performed in an objectively unreasonable manner when the record reveals that he consulted with three mental health experts before trial, none of whom concluded that defendant's lack of remorse was caused by dissociation with reality. Although these experts evaluated defendant for purposes of raising an insanity defense or for mitigating the killing, they nonetheless concluded that defendant did not suffer from a mental health disorder. We cannot hold that trial counsel was constitutionally ineffective by not seeking out a fourth expert witness when the first three he consulted did not indicate that defendant suffered from an underlying mental health condition that caused him to appear to lack remorse for his actions. The record unequivocally shows that trial counsel thoroughly examined options regarding the use of expert witnesses and what, in the end, would be the best trial strategy. His performance on behalf of defendant was anything but ineffective as defined by the Supreme Court.

However, defendant also argues that his trial counsel was ineffective for failing to object to irrelevant and prejudicial evidence, as well as the prosecutor's argument that utilized that evidence. Defendant notes that the prosecution introduced evidence—without objection from his counsel—of his conversation with Deputy Casto in which he espoused his views on capital punishment, and told Casto about a criminology paper his father had written that discussed various forms of execution.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. “Alternatively stated, the general rule is that evidence is admissible if helpful in throwing light upon any material point in issue.” People v. Murphy (On Remand), 282 Mich.App. 571, 580, 766 N.W.2d 303 (2009) (quotation marks and citation omitted). “A material fact is one that is ‘in issue’ in the sense that it is within the range of litigated matters in controversy.” Id. (quotation marks and citation omitted). Pursuant to MRE 402, “[a]ll relevant evidence is admissible,” unless it is otherwise deemed inadmissible. Here, defendant's statements to Casto were relevant to a matter in controversy because they tended to show defendant's state of mind prior to the killing. Given that the statements were made shortly after defendant shot Jesse, they were relevant to prove the issue of premeditation because they demonstrate that defendant considered the consequences of killing before he committed the murder. Those statements also showed that soon after the killing, defendant was able to clearly articulate thoughts, even about matters associated with killing and punishment. Defendant's trial counsel was not ineffective for failing to raise a meritless objection. People v. Ericksen, 288 Mich.App. 192, 201, 793 N.W.2d 120 (2010).

Defendant also contends that his trial counsel should have moved to exclude his statements to Casto under MRE 403because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. An analysis under MRE 403 requires balancing several factors, People v. Blackston, 481 Mich. 451, 462, 751 N.W.2d 408 (2008), which include

the time required to present the evidence and the possibility of delay, whether the evidence is needlessly cumulative, how directly the evidence tends to prove the fact for which it is offered, how essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner without as many harmful collateral effects. [Id.]
The mere fact that evidence is damaging to a defendant does not make the evidence unfairly prejudicial. Murphy (On Remand), 282 Mich.App. at 582–583, 766 N.W.2d 303.

In consideration of these factors, we conclude that any objection to defendant's statements about capital punishment under MRE 403 would have been unsuccessful. Although a slight danger existed that the jury might have been misled by comments about capital punishment, the evidence nonetheless tended to show that defendant acted with premeditation and the evidence was not particularly inflammatory. Therefore, trial counsel was not ineffective for failing to raise an objection to the evidence or to the prosecutor's argument as any such objections would have been meritless. Ericksen, 288 Mich.App. at 201, 793 N.W.2d 120. Relative to the prosecutor's reference to Charles Manson, although the prosecutor's question was irrelevant and his comments during closing arguments improper, defendant's trial counsel's performance did not fall below an objective standard of reasonableness by failing to raise an objection. Defendant's trial counsel, as an experienced attorney, “was certainly aware that there are times when it is better not to object and draw attention to an improper comment.” People v. Unger, 278 Mich.App. 210, 242, 749 N.W.2d 272 (2008) (quotation marks and citation omitted). “Furthermore, declining to raise objections, especially during closing arguments, can often be consistent with sound trial strategy.” Id.

Nevertheless, even if trial counsel acted in an objectively unreasonable manner by failing to object to this evidence, defendant would not be entitled to relief because he cannot demonstrate prejudice. Carbin, 463 Mich. at 600, 623 N.W.2d 884. Indeed, even if this evidence had been excluded, the prosecution presented overwhelming evidence of defendant's guilt. The prosecution introduced evidence that defendant admitted to pondering the killing for approximately two to three hours, and that he sat in the living room next to Jesse for approximately 45 minutes as he contemplated what to do. Further, defendant told police officers that he pondered whether to use knives, a gun, or even a pillow. Given the amount of contemplation and planning by defendant, there is overwhelming evidence that he had more than a “sufficient time to ... take a second look” and that he was guilty of first-degree premeditated murder. People v. Jackson, 292 Mich.App. 583, 588, 808 N.W.2d 541 (2011) (quotation marks and citation omitted).

B. WAIVER OF DEFENDANT'S FIFTH AMENDMENT RIGHT AGAINST SELF–INCRIMINATION

Defendant also challenges the trial court's failure to suppress his confessions to Kiefer and Suarez because, although he waived his Fifth Amendment rights before giving his confessions, his waivers were neither knowing nor voluntary. Defendant preserved this issue for appeal by challenging the admissibility of his statements in a pretrial motion. Unger, 278 Mich.App. at 243, 749 N.W.2d 272. “We review de novo a trial court's determination that a waiver was knowing, intelligent, and voluntary.” People v. Gipson, 287 Mich.App. 261, 264, 787 N.W.2d 126 (2010). However, we defer to the trial court's factual findings so long as they are not clearly erroneous. People v. Herndon, 246 Mich.App. 371, 395, 633 N.W.2d 376 (2001). “[T]he analysis must be bifurcated, i.e., considering (1) whether the waiver was voluntary, and (2) whether the waiver was knowing and intelligent.” People v. Tierney, 266 Mich.App. 687, 707, 703 N.W.2d 204 (2005). Whether a waiver is knowing and intelligent “requires an inquiry into [a] defendant's level of understanding, irrespective of police conduct.” Gipson, 287 Mich.App. at 265, 787 N.W.2d 126. “A defendant does not need to understand the consequences and ramifications of waiving his or her rights. A very basic understanding of those rights is all that is necessary.” Id. Meanwhile, whether the waiver was voluntary depends on the absence of police coercion; the defendant's waiver must be his or her own “free and deliberate choice,” rather than the product of intimidation. Id. at 264–265, 787 N.W.2d 126.

Initially, we conclude that record evidence supported all of the trial court's findings, so we use those facts in analyzing the legal issues presented. In doing so, we hold that defendant knowingly and intelligently waived his right against self-incrimination after his Miranda warnings because the totality of the circumstances demonstrates that defendant understood his rights. Kiefer and Suarez testified that defendant appeared intelligent and articulate and that he twice stated he understood the nature of his rights. Although defendant was only 14 years old, the record reveals that he performed well in school. Additionally, the trial court rejected defendant's testimony at the suppression hearing that he did not understand his rights, finding that defendant was not credible as he was unable to articulate exactly what he did not understand about his rights. We defer to the trial court's credibility determinations. Gipson, 287 Mich.App. at 264, 787 N.W.2d 126. Because the trial court found that defendant appeared intelligent and articulate and that he twice indicated he understood his rights, we cannot hold that his waiver was not knowing and intelligent. See People v. Abraham, 234 Mich.App. 640, 649–650, 599 N.W.2d 736 (1999); People v. Fike, 228 Mich.App. 178, 182, 577 N.W.2d 903 (1998).

We likewise reject defendant's argument that his waivers were involuntary. The voluntariness of a Miranda waiver is evaluated under a totality of the circumstances test, but also includes additional safeguards for juveniles. In re SLL, 246 Mich.App. 204, 209, 631 N.W.2d 775 (2001); People v. Givans, 227 Mich.App. 113, 121, 575 N.W.2d 84 (1997). In Givans, 227 Mich.App. at 121, 575 N.W.2d 84, this Court explained that the trial court must consider extra factors in deciding whether a juvenile's waiver was voluntary:

(1) whether the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been met and the defendant clearly understands and waives those rights, (2) the degree of police compliance with MCL 764.27; MSA 28.886 and the juvenile court rules, (3) the presence of an adult parent, custodian, or guardian, (4) the juvenile defendant's personal background, (5) the accused'sage, education, and intelligence level, (6) the extent of the defendant's prior experience with the police, (7) the length of detention before the statement was made, (8) the repeated and prolonged nature of the questioning, and (9) whether the accused was injured, intoxicated, in ill health, physically abused or threatened with abuse, or deprived of food, sleep, or medical attention.

Considering the factors articulated in Givans, and keeping in mind the deference we give to the trial court's findings of fact, we hold that defendant voluntarily waived his Fifth Amendment rights before he spoke with Kiefer and Suarez. Regarding the first factor, the officers complied with Miranda 's requirements and defendant understood his Miranda rights. As to the third factor, Eliason was present during defendant's interview with Suarez, and although he was not present during defendant's interview with Kiefer, that was at defendant's request.

Likewise, we find nothing in the next three factors—defendant's background, age, education, intelligence, and the extent of his prior experience with the police—to suggest that defendant's waiver was involuntary. Kiefer described defendant as “intelligent and articulate,” and Suarez opined that defendant was “probably above average [intelligence] for his age....” Additionally, the record reveals that defendant earned mostly A's and B's in school, and that he did not have difficulty understanding the police officers who interviewed him. Further, defendant had some familiarity with the police as a result of prior questioning by police officers on another occasion.

The remaining three factors—the length of the detention, the nature of the questioning, and whether defendant was coerced, threatened, or deprived of food, water, sleep, or medical attention—also support the conclusion that defendant's waivers were voluntary. Neither the detention nor the questioning in this case was prolonged, as defendant confessed to Kiefer almost immediately after he was arrested. His subsequent confession to Suarez followed approximately two hours later. Moreover, there is no indication in the record, nor does defendant allege, that Kiefer or Suarez coerced or threatened him into making a confession and waiving his rights. Although defendant notes that he had not slept for a considerable amount of time before the interviews, the officers testified that defendant was articulate and that he did not have difficulty answering their questions. Accordingly, in light of each of the factors noted above, we hold that defendant's waivers were voluntary. See Givans, 227 Mich.App. at 122, 575 N.W.2d 84;People v. Good, 186 Mich.App. 180, 189, 463 N.W.2d 213 (1990).

C. CRUEL AND UNUSUAL PUNISHMENT

Defendant's final argument is that his mandatory sentence of life imprisonment without the possibility of parole is cruel and unusual punishment under U.S. Const., Am. VIII and Const. 1963, art. 1, § 16. At sentencing, the trial court imposed a mandatory sentence of life without the possibility of parole pursuant to MCL 750.316(1), MCL 769.1(1)(g), and MCL 791. 234(6)(a). Defendant preserved this issue by raising it at his sentencing hearing. People v. Pipes, 475 Mich. 267, 277, 715 N.W.2d 290 (2006). “ This Court reviews constitutional questions de novo.” People v. Dipiazza, 286 Mich.App. 137, 144, 778 N.W.2d 264 (2009).

In Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012), the United States Supreme Court ruled “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” The Miller Court noted that juveniles and adults are different for purposes of sentencing, and explained that sentencing schemes that mandate life without parole for juveniles convicted of homicide offenses do not take into account a juvenile's individual characteristics and thus are unconstitutional. Id. at ––––, 132 S.Ct. at 2466–2469. The Court added:

[T]he mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations. By removing youth from the balance—by subjecting a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes ... [the] foundational principle [found in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ]: that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children. [Id. at ––––, 132 S.Ct. at 2466.]

In People v. Carp, 298 Mich.App. 472, 526–527, 828 N.W.2d 685 (2012) this Court explained 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. The holding of Carp, however, was that Miller did not apply retroactively to collateral challenges to sentences. Id. at 522, 828 N.W.2d 685. Here, defendant's case was pending on direct review at the time Miller was decided; therefore, Miller applies and defendant's mandatory sentence of life imprisonment without the possibility of parole constitutes cruel and unusual punishment under the Eighth Amendment. Id.

However, contrary to defendant's assertions, he is not entitled to a remand at which the trial court has unfettered discretion to impose a sentence for any term of years. In fact, he could still receive the same sentence on remand, as the Miller Court did not “foreclose a sentencer's ability” to sentence a juvenile in a homicide case to life imprisonment without parole, so long as the sentence “take[s] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at ––––, 132 S.Ct. at 2469. In other words, a trial court can still sentence a juvenile who committed a homicide to life in prison without the possibility of parole, so long as that sentence is an individualized one that takes into consideration the factors outlined in Miller. Id. at ––––, 132 S.Ct. at 2466–2467, 2471. We recognized as much in Carp, 298 Mich.App. at 525, 828 N.W.2d 685, where we opined in dicta that the rule from Miller “does not ... imply that a sentencing court has unfettered discretion when sentencinga juvenile. Rather, the focus is on the discretion of the sentencer to determine whether to impose the harshest penalty of life without the possibility of parole on a juvenile convicted of a homicide offense.”

Therefore, the only discretion afforded to the trial court in light of our first-degree murder statutes and Miller is whether to impose a penalty of life imprisonment without the possibility of parole or life imprisonment with the possibility of parole. Carp, 298 Mich.App. at 527, 828 N.W.2d 685. In deciding whether to impose a life sentence with or without the possibility of parole, the trial court is to be guided by the following nonexclusive list of factors:

(a) the character and record of the individual offender [and] the circumstances of the offense, (b) the chronological age of the minor, (c) the background and mental and emotional development of a youthful defendant, (d) the family and home environment, (e) the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressure may have affected [the juvenile], (f) whether the juvenile might have been charged [with] and convicted of a lesser offense if not for incompetencies associated with youth, and (g) the potential for rehabilitation. [Id. at 532, 828 N.W.2d 685, citing Miller, 567 U.S. at ––––, 132 S.Ct. at 2467–2468 (quotation marks and citations omitted).]

As the prosecutor has noted, under MCR 6.425(E)(1), a trial court is already required to hold a sentencing hearing, and so this remedy—rather than the one suggested by defendant —is expressly permitted by court rule and is not an unconstitutional trip by the judiciary into the legislative realm. We therefore vacate defendant's mandatory sentence of life without the possibility of parole and remand for an individualized sentence within the strictures of Miller.

Our dissenting colleague is of the opinion that (1) under the federal constitution as interpreted in Miller a trial court has complete freedom to resentence a juvenile to any sentence, except those actually provided for by the Legislature, and (2) that a sentence of life with the possibility of parole is cruel or unusual punishment under Const. 1963, art. 1, § 16. With all due respect, we explain below why we disagree with these propositions.

1. MILLER AND THE SEPARATION OF POWERS

The dissent argues that our application (consistent with the dicta of Carp ) of Miller 's holding—i.e., that the appropriate sentencing remedy is to remand for a life sentence, with the trial court exercising discretion as to whether the sentence should be with or without the possibility of parole—is too narrow. Instead, relying on Miller, the dissent would create a rule providing trial courts with the “discretion to fashion a sentence that takes into account an offender's youth....” Essentially the dissent would give unfettered discretion (except for use of Miller 's criteria) to trial courts when sentencing juveniles lawfully convicted of first-degree premeditated murder. But in coming to this conclusion, the dissent has failed to heed (1) the actual holding of Miller, (2) the context in which Miller 's ruling was made, and (3) the Michigan Legislature's judgment of the appropriate punishment for first-degree murderers.

There is no disagreement that Miller provides the precedent for addressing whether defendant's current sentence—one that was mandatorily imposed—is constitutionally valid under the federal constitution. But precedent, of course, has its limitations. As one court has accurately stated:

The essence of the common law doctrine of precedent or stare decisis is that the rule of the case creates a binding legal precept. The doctrine is so central to Anglo–American jurisprudence that it scarcely need be mentioned, let alone discussed at length. A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy. [Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 969–970 (C.A.3, 1979) abrogated on other grounds St. Margaret Mem. Hosp. v. NLRB, 991 F.2d 1146 (C.A.3, 1993) (footnote omitted).]

At the outset of her opinion, Justice Kagan made clear the holding in Miller: “We ... hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.’ ” Miller, 567 U.S. at ––––, 132 S.Ct. at 2460. That holding was necessarily limited by the fact that the Court was reviewing the validity of statutes enacted in Alabama and Arkansas that required the sentence of life without the possibility of parole without a trial court considering any factors unique to the defendant and his crime. Justice Kagan was equally specific when she declared for the Court that it was not invalidating discretionary life-without-parole sentences imposed on juveniles convicted of murder: “Because that holding is sufficient to decide these cases, we do not consider ... [the] alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.” Id. 2455, 132 S.Ct. at 2469. Importantly, the Miller Court did not strike down the statutes in their entirety, but instead merely ruled that their mandatory nature violated the Eighth Amendment when applied to juveniles.

As a result of Miller 's limited holding, the state statutes under which the trial court sentenced defendant to life in prison without the possibility of parole—MCL 750.316(1)(a), MCL 769.1(1)(g), and MCL 791.234(6)(a)—cannot on remand mandate the same sentence. Instead, the trial court is required to consider the factors surrounding defendant's age when exercising the discretion to determine whether the same sentence should be imposed again. Miller requires nothing more, and certainly did not invalidate the Michigan Legislature's judgment that a life sentence is the appropriate punishment for a juvenile who is lawfully convicted of first-degree murder.

Contrary to the dissent's view, the Miller Court's recitation of factors it considered relevant to youth did not create a new mandatory sentencing guideline in place of sentencing statutes like those at issue here. Rather, because it was addressing whether mandatory life in prison without the possibility of parole was constitutional, the Miller Court recited factors that distinguish juveniles from adults both as evidence of what important factors could not be considered under these mandatory schemes and to provide guidance to lower courts when determining if “a State's most severe penalties on juvenile offenders” should be imposed:

But the mandatory penalty schemes at issue here prevent the sentencer from taking account of these central considerations. By removing youth from the balance—by subjecting a juvenile to the same life-without-parole sentence applicable to an adult— these laws prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham's (and also Roper's ) foundational principle: that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children. [Miller, 567 U.S. at ––––, 132 S.Ct. at 2466 (emphasis added).]
See, also, id. at ––––, 132 S.Ct. at 2467 (“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.”). We reemphasize, then, by repeating that Miller did “not foreclose a sentencer's ability to make that judgment [life without parole] in homicide cases,” but instead merely required sentencing courts “to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at ––––, 132 S.Ct. at 2469 (emphasis added).

The dissent fails to acknowledge this specific holding, and the context within which the Miller Court reached it. Yes, the factors that come into play when sentencing juveniles are important, but Miller only requires those to be considered when the juvenile is convicted of murder and the state's “most severe penalty” is being considered,i.e., life without the possibility of parole. Just last month the Wyoming Supreme Court, in Bear Cloud v. State, 2013 Wy 18, ¶ 44, 294 P.3d 36, 47 (Wyo.2013), recognized this same point:

In sum, Miller requires an individualized sentencing hearing for every juvenile convicted of first-degree murder at which the sentencing court must consider the individual, the factors of youth, and the nature of the homicide in determining whether to order a sentence that includes the possibility of parole. Miller does not guarantee the possibility of parole for a convicted juvenile homicide offender, but Miller does mandate that a meaningful review and consideration be afforded by the sentencing court.
The Miller Court was unquestionably not offering these factors so that courts could fashion any sentence for a juvenile, which is made clear by the limited holding and issue before that Court.

But that is what is urged by the dissent, and in doing so it is stretching Miller well beyond the precedent that it established. Perhaps granting trial courts wide discretion in sentencing a juvenile would be good policy (though we certainly offer no opinion on that subject), but as of today Michigan law—in conjunction with Miller—is clear as to what sentences can be imposed upon a juvenile for a first-degree-murder conviction. If a different policy decision is to be made regarding the appropriate sentences for juveniles convicted of murder, it is best “to allow the legislative process to work than to engage in an expansive and unnecessary interpretation of Miller.” State v. Riley, 140 Conn.App. 1, 15 n. 8, 58 A3d 304 (2013), lv. gtd. in part 308 Conn. 910 (2013). Again, Miller unquestionably did not invalidate state statutes when construed (pursuant to Miller ) to allow first-degree murderers to be sentenced to life in prison without parole, and so we must continue to enforce our Legislature's policy choice in that regard, see Davis v. Detroit Financial Review Team, 296 Mich.App. 568, 628–629, 821 N.W.2d 896 (2012) (O'Connell, J., concurring in part and dissenting in part) (recognizing the inherent limitations on the judiciary under the separation of powers).

2. THE STATE CONSTITUTION

Defendant and the dissent also argue that a sentence of life in prison with or without the possibility of parole runs afoul of our state constitution's prohibition against “cruel or unusual punishment[.]” Const. 1963, art. 1, § 16. It is certainly true that this state provision, with the use of “or” rather than the Eighth Amendment's prohibition containing “and,” has been interpreted more broadly than the federal prohibition. People v. Bullock, 440 Mich. 15, 30, 485 N.W.2d 866 (1992). However, because it is unknown what sentence on remand will be imposed upon defendant, and for what reasons, it is best to leave this issue to another day. See People v. Oswald (After Remand), 188 Mich.App. 1, 12–13, 469 N.W.2d 306 (1991). Nevertheless, because the dissent has gone to great lengths in addressing this issue, we feel compelled to offer a few comments on the subject.

Our dissenting colleague concludes, based primarily on Bullock and People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972), that the Michigan Legislature cannot constitutionally set the punishment of life in prison with or without the possibility of parole for a juvenile convicted of first-degree murder. To reach this result, the dissent employs the vague and subjective proportionality tests set forth in those cases, while failing to note caselaw that tends to preclude the conclusion reached.

For example, it is well settled that “[l]egislatively mandated sentences are presumptively proportional and presumptively valid.” People v. Brown, 294 Mich.App. 377, 390, 811 N.W.2d 531 (2011). Nowhere does the dissent mention these constitutionally important presumptions. Likewise, how can it be that our state constitution prohibits a sentence for a juvenile of life with parole when our Supreme Court has held that life without parole is constitutional for the crimes of felony-murder and conspiracy to commit murder? See People v. Hall, 396 Mich. 650, 657–658, 242 N.W.2d 377 (1976) and People v. Fernandez, 427 Mich. 321, 335, 398 N.W.2d 311 (1986). One reason why the Hall Court rejected the state constitutional challenge was because defendant had not shown that “Michigan's punishment for felony murder is widely divergent from any sister jurisdiction.” Hall, 396 Mich. at 658, 242 N.W.2d 377. Nowhere does the dissent address this relevant factor. See Bullock, 440 Mich. at 33–34, 485 N.W.2d 866 (recognizing under Lorentzen that how other states penalize the conduct must be considered in the proportionality analysis); Brown, 294 Mich.App. at 390, 811 N.W.2d 531 (how other states penalize similar conduct must be considered in the state constitutional analysis); People v. Launsburry, 217 Mich.App. 358, 363, 551 N.W.2d 460 (1996) (same). Finally, our Supreme Court in People v. Lemons, 454 Mich. 234, 258–259, 562 N.W.2d 447 (1997), rejected an argument that an offender's young age, by itself, renders a particular sentence disproportionate.

It is apparent that the dissent believes that it is immoral to punish a juvenile for murder with a life sentence, even when given the chance of parole. As explained earlier, the Miller Court failed to invalidate all juvenile life sentences with no chance of parole, and failed to address juvenile life sentences with the opportunity for parole. Moreover, no Michigan Supreme Court case has held such a sentence unconstitutional. Accordingly, the dissent's argument turns solely on policy and an overly broad reading and application of Miller and Bullock.

Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

O'CONNELL, J., concurred with MURRAY, J.

GLEICHER, P.J. (concurring in part and dissenting in part).

I concur with the result reached by the majority regarding defendant Dakotah Eliason's challenges to his first-degree-murder conviction. I write separately to respectfully express my belief that the Michigan Constitution forbids the trial court from resentencing Dakotah to imprisonment for life without the possibility of parole. Furthermore, because Michigan's parole guidelines do not take into account Dakotah's youth at the time he committed the crime, I believe that both the United States and Michigan Constitutions mandate that the trial court consider sentencing Dakotah to a term of years that affords him a realistic opportunity for release.

I. THE EIGHTH AMENDMENT, PROPORTIONALITY, AND JUVENILE OFFENDERS

The Eighth Amendment of the United States Constitution embodies the basic precept that punishment for crime should be proportioned to both the offender and the offense. Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455, 2463, 183 L.Ed.2d 407 (2012). “The concept of proportionality is central to the Eighth Amendment.” Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010). Applying proportionality principles, the Supreme Court held in Miller that a mandatory sentence of life imprisonment without the possibility of parole violates the Eighth Amendment's prohibition of “cruel and unusual punishments” when imposed on an offender who had not reached the age of 18 at the time of his crime. Miller, 567 U.S. at ––––, 132 S.Ct. at 2469.

Miller 's holding flows from two precedential strands of Eighth Amendment jurisprudence: “categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty,” Miller, 567 U.S. at ––––, 132 S.Ct. at 2463, and the requirement “that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death” id. at ––––, 132 S.Ct. at 2463–2464. “[T]he confluence of these two lines of precedent,” the Supreme Court explained, “leads to the conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.” Id. at ––––, 132 S.Ct. at 2464.

The “categorical ban” authorities cited by the Supreme Court, Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Graham, 560 U.S. 48, 130 S.Ct. 2011, “establish that children are constitutionally different from adults for the purposes of sentencing.” Miller, 567 U.S. at ––––, 132 S.Ct. at 2464. Recklessness, impulsivity, and thoughtlessly engaging in risk-taking behaviors are but three unpleasant hallmarks of adolescent behavior. These characteristics of youth render children “less culpable than adults[.]” Graham, 560 U.S. at ––––, 130 S.Ct. at 2028 (quotation marks and citation omitted). Accordingly, a convicted defendant's age figures prominently in the Eighth Amendment's proportionality analysis. Miller, 567 U.S. at ––––, 132 S.Ct. at 2465–2466.

Because “youth matters” in determining whether lifetime incarceration without the possibility of parole is warranted, “criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed.” Id. at ––––, 132 S.Ct. at 2465–2466 (quotation marks and citation omitted). Thus, mandatory penalty provisions contravene the fundamental constitutional principle “that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children.” Id. at ––––, 132 S.Ct. at 2466. Likening life-without-parole sentences to the death penalty, the Supreme Court reasoned that juveniles convicted of homicide must be sentenced individually and in a manner that recognizes “the mitigating qualities of youth.” Id. at ––––, 132 S.Ct. at 2467 (quotation marks and citation omitted). The Supreme Court elaborated:

[M]andatory 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 ... will receive the same sentence as the vast majority of adults committing similar homicide offense—but really, as Graham noted, a greater sentence than those adults will serve. [Id. at ––––, 132 S.Ct. at 2467–2468.]

Juveniles convicted of even the most serious offenses may redeem themselves in prison and thereby demonstrate an ability to rejoin society as productive members. For this reason, the Eighth Amendment requires that states provide “ ‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’ ” Id. at ––––, 132 S.Ct. at 2469, quoting Graham, 560 U.S. at ––––, 130 S.Ct. at 2030. And although the Supreme Court refused to “foreclose a sentencer's ability” to impose on a juvenile a punishment of life without parole, the Court emphasized that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Miller, 567 U.S. at ––––, 132 S.Ct. at 2469.

The majority recognizes that Miller sets forth a new constitutional rule governing the process of sentencing juveniles convicted of first-degree murder in Michigan. Citing this Court's opinion in People v. Carp, 298 Mich.App. 472, 828 N.W.2d 685 (2012), the majority holds that Dakotah is entitled to resentencing following a hearing after which the trial court must impose a sentence of either life without the possibility of parole, or life imprisonment with the possibility of parole. According to dicta contained in Carp and adopted by the majority, Miller “does not ... imply that a sentencing court has unfettered discretion when sentencing a juvenile. Rather, the focus is on the discretion of the sentencer to determine whether to impose the harshest penalty of life without the possibility of parole on a juvenile convicted of a homicide offense.” Id. at 525, 828 N.W.2d 685.

In accordance with Carp, the majority circumscribes Dakotah's sentence alternatives to life imprisonment without parole or life imprisonment with parole. The majority predicates this rule on “the Michigan Legislature's judgment that a life sentence is the appropriate punishment for a juvenile who is lawfully convicted of first-degree murder.” Contrary to Carp and the majority, Miller mandates that a sentencing court retain discretion to fashion an individualized sentence that takes into account an offender's youth and “distinctive (and transitory) mental traits and environmental vulnerabilities,” and also affords young offenders a “meaningful opportunity to obtain release.” Miller, 567 U.S. at ––––, ––––, 132 S.Ct. at 2465, 2469 (quotation marks and citation omitted). The sentencing calculus crafted by Carp violates Miller because it eliminates individualized sentencing and (as Carp concedes) it forecloses any meaningful opportunity for a reformed juvenile to obtain his or her freedom.

Furthermore, while professing fidelity to legislative sentencing judgments, the majority(and Carp ) fail to identify any statutory provision permitting a trial court to sentence a defendant convicted of first-degree murder to life imprisonment with the possibility of parole. Our Legislature has defined only one sentence for first-degree murder, and that sentence simply does not contemplate life with parole.

The majority insists that Miller requires that when resentencing juveniles, judges must apply the legislative “policy choice” most consistent with life without parole. I find nothing in Miller even remotely consistent with this view. To the contrary, Miller holds that proportionality principles must guide juvenile sentencing, and that laws that disregard the characteristics of youth are flawed. Miller, 567 U.S. at ––––, 132 S.Ct. at 2465–2466. Moreover, the majority's newly created life-sentence option is no more tethered to Michigan's legislative sentencing scheme than a term-of-years sentence. Absent any legislatively approved sentence for first-degree murder other than life without parole, the real question is whether affording a sentencing court the ability to impose a term-of-years sentence is required to fulfill Miller 's mandate. In my view, only this option permits an individualized sentence and offers a juvenile “ ‘some meaningful opportunity to obtain release.’ ” Miller, 567 U.S. at ––––, 132 S.Ct. at 2469 (citation omitted; emphasis added).

Furthermore, article 1, § 16 of the Michigan Constitution precludes sentencing Dakotah to life imprisonment. Michigan's constitutional prohibition of cruel or unusual punishment incorporates a proportionality analysis emphasizing evolving sentencing standards “enlightened by a humane justice,” and focusing on rehabilitation rather than retribution. People v. Lorentzen, 387 Mich. 167, 178, 179–181, 194 N.W.2d 827 (1972) (quotation marks and citation omitted). Measured against this framework, a life sentence with or without the possibility of parole exceeds constitutional bounds.

II. THE EIGHTH AMENDMENT, JUVENILE OFFENDERS, AND MICHIGAN'S SENTENCING SCHEME

In Carp, this Court elected to “provide guidance” to courts that would in the future sentence juveniles convicted of first-degree murder, despite that the sole issue presented was whether Miller applied retroactively. Carp, 298 Mich.App. at 523, 828 N.W.2d 685. In dicta adopted uncritically by the majority, Carp limited sentencing courts' range of options to life imprisonment with parole, or life without parole. Id. at 527, 828 N.W.2d 685.Carp based this commandment on its own determination that “[i]t would ... be inconsistent to sentence juveniles who commit murder to a sentence that is not proportional to the severity of the crime.” Id. at 528, 828 N.W.2d 685.

This new rule is incorrect for two reasons. First, it ignores the United States Supreme Court's admonition in Miller, Graham, and Roper that a youthful offender's sentence must be proportioned to the offender as well as the offense. While an automatic life sentence may be proportionate to the crime of murder, a life sentence may not be imposed on a juvenile absent meaningful consideration of whether such punishment fits the juvenile criminal. Carp 's prescription—life with or without parole—nullifies the “foundational principle[ ] that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children.” Miller, 567 U.S. at ––––, 132 S.Ct. at 2466.

Pursuant to Miller 's core proportionality principles, an offender's age possesses special relevance that necessarily factors prominently in a sentencing calculation. Id. at ––––, 132 S.Ct. at 2469.Miller instructs that because “youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole,” sentencing courts must consider “the background and mental and emotional development” of each individual youthful offender before passing sentence. Id. at ––––, ––––, 132 S.Ct. at 2465, 2467 (quotation marks and citation omitted). In other words, Miller compels a sentencing court to tailor punishment to an offender's personal responsibility and singular moral guilt. To comply with Miller, a judge must bear in mind that children under age 18 are “categorically less culpable,” Roper, 543 U.S. at 567, 125 S.Ct. 1183 (quotation marks and citation omitted), and more amenable to rehabilitation than adults who commit the same crimes. A sentencing scheme that forecloses sentencing proportionate to a child's culpability violates Graham, Roper, and Miller.

For this reason, Carp 's circumscription of sentence options to either of two life terms cannot be reconciled with Miller 's central teaching: children are constitutionally unique. Judges sentencing children must consider the mitigating effects of youth and the specific circumstances of their crimes. These factors may counsel strongly against a life term, either with or without the possibility of parole. A sentencing rubric that fails to permit proportional and individualized mitigation does not pass constitutional muster.

In light of the “diminish[ed] ... penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes,” Miller, 567 U.S. at ––––, 132 S.Ct. at 2465, different sentencing principles apply. Despite that Michigan law demands that an adult murderer serve a mandatory life sentence, Miller obligates sentencing courts to exercise meaningful discretion when sentencing a child who committed that same crime. Exercising discretion involves thoughtfully considering “the wealth of characteristics and circumstances attendant to” a defendant's youth, id. at ––––, 132 S.Ct. at 2467, which in turn means that a court must be permitted to reject that a child deserves to serve a life term. In my view, the exercise of discretion contemplated in Miller is simply inconsistent with a rule allowing only for life imprisonment with or without parole. The “ two-sizes-fit-all” approach embraced by Carp offends the Eighth Amendment because it forecloses proportionality.

I respectfully take issue with Carp for a second reason. In Carp, this Court acknowledged that a parolable life sentence likely results in lifetime imprisonment. Carp, 298 Mich.App. at 533–535, 828 N.W.2d 685. This reality compels the conclusion that a sentence of life with parole is just as final as one that denies the possibility of parole at the outset. Although Carp urges that the Parole Board provide “a meaningful determination and review when parole eligibility arises,” id. at 536, 828 N.W.2d 685,Miller instructs that removing youth from the balance at the time of sentencing contravenes the Eighth Amendment by prohibiting a judge “from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender.” Miller, 567 U.S. at ––––, 132 S.Ct. at 2466.

Postponing proportionality analysis until parole eligibility is simply inconsistent with Miller. This is particularly true in Michigan, as the statutory and administrative standards governing our parole board's decision-making bear no resemblance to the most relevant mitigating factors identified in Miller: a juvenile's diminished moral culpability, the “wealth of characteristics and circumstances attendant to” an offender's youth at the time the crime was committed, and the harshness of a life sentence imposed on, for example, a 14–year–old child. Miller, 567 U.S. at ––––, 132 S.Ct. at 2467. Instead, Michigan's parole system focuses on “the prisoner's mental and social attitude” at the time parole is considered. MCL 791.233(1)(a). Although the parole guidelines examine the severity of the crime, they omit regard for a youthful offender's unique characteristics. See In re Parole of Elias, 294 Mich.App. 507, 512–517, 811 N.W.2d 541 (2011). Uncertain, unpredictable, and unlikely parole does not substitute for factoring in on the “front end” a juvenile's lessened culpability. Miller does not contemplate that a parole board may substitute for a sentencing judge.

Because the alternative sentencing options set forth in Carp are materially indistinguishable and discretionary in name only, they do not satisfy Miller. In practice, they are but two sides of the same life-imprisonment coin. Confining a sentencing court's ability to commit a juvenile to life without parole or to life with but the barest possible prospect of parole defies Miller 's mandate that when passing sentence, judges must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at ––––, 132 S.Ct. at 2469. Accordingly, implementing Miller entails more than mechanically applying adult sentencing practices to child offenders.

Carp declares that Miller “does not require Michigan or other states with similar mandatory sentencing schemes to abrogate or abandon a hierarchical methodology of sentencing for those convicted of first-degree murder or to necessitate a term of years sentence consistent with a lesser offense, such as second-degree murder.” Carp, 298 Mich.App. at 527, 828 N.W.2d 685. I respectfully submit that this statement reflects a misunderstanding of Miller.Miller does not “abrogate or abandon” any state's sentencing methodology. It simply requires that every state adjust that methodology in a manner that recognizes that “youth matters,” allowing judges to implement that recognition by tailoring a sentence to fit the offender as well as the offense. Because a parolable life sentence in Michigan actually amounts to the imposition of a life-without-parole sentence, Carp has simply written mitigation out of the equation. Regardless whether a “term of years” sentence would correspond with a conviction of second-degree murder, it must remain an option for a sentencing court.

III. THE MICHIGAN CONSTITUTION

Const. 1963, art. 1, § 16 prohibits the infliction of cruel or unusual punishment. In People v. Bullock, 440 Mich. 15, 30, 485 N.W.2d 866 (1992), our Supreme Court held that this provision should be interpreted more expansively than the United States Supreme Court interprets the Eighth Amendment. Three “compelling reasons” guided the Bullock Court's decision to construe the provisions differently. First, Michigan's Constitution bars “cruel or unusual” punishments, while the federal constitution addresses “cruel and unusual” punishments. Id. This textual variance “does not appear to be accidental or inadvertent.” Id. at 30, 485 N.W.2d 866. The Bullock Court restated Lorentzen 's observation that “this difference in phraseology ... might well lead to different results with regard to allegedly disproportionate prison terms.” Id. at 31, 485 N.W.2d 866. Quoting Lorentzen, 387 Mich. at 172, 194 N.W.2d 827, the Court explained that “ ‘[t]he prohibition of punishment that is unusual but not necessarily cruel carries an implication that unusually excessive imprisonment is included in that prohibition.’ ” Bullock, 440 Mich. at 31, 485 N.W.2d 866.

Next, Bullock drew on “historical factors” suggesting that the framers of Michigan's Constitution understood the meaning of the clause differently than did the United States Supreme Court. In contrast with the United States Supreme Court, by 1963 the Michigan Supreme Court had determined that the cruel and unusual punishment ban “include[d] a prohibition on grossly disproportionate sentences.” Id. at 32, 485 N.W.2d 866. “Longstanding Michigan precedent” guided the Bullock Court's conclusion that the Michigan Supreme Court has historically interpreted the operative words through the prism of proportionality. Id. at 33–34, 485 N.W.2d 866 (formatting altered).

After establishing the interpretive independence of the Michigan Supreme Court concerning our Constitution's “cruel or unusual punishment” provision, the Court struck down as unconstitutionally disproportionate a mandatory sentence of life without possibility of parole for conviction of knowing possession of 650 grams or more of cocaine. Id. at 40, 485 N.W.2d 866. Notably, the United States Supreme Court had rebuffed an Eighth Amendment challenge to precisely the same sentence less than one year earlier in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). The Michigan Supreme Court specifically embraced Justice Byron White's dissenting opinion in Harmelin, ruling that “[t]o be constitutionally proportionate, punishment must be tailored to a defendant's personal responsibility and moral guilt.” Bullock, 440 Mich. at 39, 485 N.W.2d 866, quoting Harmelin, 501 U.S. at 1023, 111 S.Ct. 2680 (White, J., dissenting).

Bullock thereby invalidated the life-without-parole sentences for the two defendants in that case, as well as all others “currently incarcerated under the same penalty, and for committing the same offense[.]” Bullock, 440 Mich. at 42, 485 N.W.2d 866. The “most appropriate remedy” for the disproportionate life sentences imposed on those offenders, the Court concluded, was to “ameliorate the no-parole feature of the penalty” and to require that “such defendants [receive] the parole consideration otherwise available upon completion of ten calendar years of the sentence” in accordance with MCL 791.234(4), which is now MCL 791.234(7)(a). Bullock, 440 Mich. at 42, 485 N.W.2d 866.

In Bullock, 440 Mich. at 34, 485 N.W.2d 866, the Court acknowledged that its proportionality analysis derived from Lorentzen. The 23–year–old defendant in Lorentzen was convicted of “the unlicensed sale, dispensation or otherwise giving away of any quantity of marijuana,” and was sentenced to the mandatory minimum for that offense: 20 years' imprisonment. Lorentzen, 387 Mich. at 170–171, 194 N.W.2d 827. The defendant lived with his parents, worked at General Motors, and had no other criminal convictions. Id. at 170, 194 N.W.2d 827. The Supreme Court held the defendant's sentence unconstitutional under the Michigan Constitution, explaining that “[a] compulsory prison sentence of 20 years for a nonviolent crime imposed without consideration for defendant's individual personality and history is so excessive that it ‘shocks the conscience.’ ” Id. at 181, 194 N.W.2d 827.

Lorentzen fashioned a three-factor test for evaluating proportionality under the Michigan Constitution. First, a court must weigh the gravity of the offense against the severity of the punishment. Id. at 176, 194 N.W.2d 827. Next, a court applies the “decency test,” which compares the sentences for other similar and different crimes, in Michigan and in other states. Id. at 179, 194 N.W.2d 827. Finally, a court looks to “rehabilitative considerations in criminal punishment,” recognizing that Michigan's sentencing scheme is designed “ ‘to reform criminals and to convert bad citizens into good citizens, and thus protect society[.]’ ” Id. at 179–180, 194 N.W.2d 827, quoting People v. Cook, 147 Mich. 127, 132, 110 N.W. 514 (1907). Specifically,

“[t]his test looks to a consideration of the modern policy factors underlying criminal penalties—rehabilitation of the individual offender, society's need to deter similar proscribed behavior in others, and the need to prevent the individual offender from causing further injury to society.” [Lorentzen, 387 Mich. at 180, 194 N.W.2d 827, quoting In re Southard, 298 Mich. 75, 82, 298 N.W. 457 (1941).]
This final criterion, the Bullock Court explained, is “rooted in Michigan's legal traditions[.]” Bullock, 440 Mich. at 34, 485 N.W.2d 866.

Bullock and Lorentzen stand for the proposition that Const. 1963, art. 1, § 16 prohibits both an unusually excessive period of imprisonment when compared with the seriousness of the crime, and a punishment that qualifies as disproportionately cruel considering the characteristics of the offender. In my view, sentencing a juvenile to life imprisonment with or without parole effectively trumps Lorentzen 's “decency test” and casts aside the mainstay rehabilitative ideals encompassed within article 1, § 16.

IV. MICHIGAN'S CONSTITUTION AND JUVENILE HOMICIDE OFFENDERS

The Michigan Supreme Court explicitly recognized in Lorentzen and Bullock that “moral guilt” and “the moral sense of the people” inform proportionality. Bullock, 440 Mich. at 39, 35 n. 18, 485 N.W.2d 866 (quotation marks and citations omitted). This acknowledgment corresponds with the United States Supreme Court's portrayal of the evolving nature of Eighth Amendment jurisprudence: “The standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.” Furman v. Georgia, 408 U.S. 238, 382, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Burger, C.J., dissenting). Roper, Graham, and Miller ore that the need to sentence children differently than adults has achieved acceptance as a moral imperative.

In Lorentzen and Bullock, as in Graham and Miller, the Courts exercised “independent judgment requir[ing] consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.” Graham, 560 U.S. at ––––, 130 S.Ct. at 2026. In these cases, the United States Supreme Court struck down sentences deemed excessive in light of contemporary norms and discordant with the penological goals sentencing should fulfill. All four cases agreed that as a matter of constitutional law, mandatory punishments insufficiently corresponding with a defendant's individualblameworthiness and the legitimate purposes of punishment do not pass muster. In this regard, as Bullock explicitly recognized, Michigan's proportionality jurisprudence foreshadowed the development of federal Eighth Amendment law. While the United States Supreme Court in Miller declined to categorically ban lifetime imprisonment for juveniles who have committed murder, I believe that pursuant to Bullock and Lorentzen,Const. 1963, art. 1, § 16 commands this result in Michigan.

Mandatory life imprisonment constitutes the single harshest sentence that can be imposed by a Michigan judge. Lifetime incarceration of a juvenile, imposed without regard to his or her individual background and emotional development, is morally insupportable for the host of reasons discussed in Roper, Graham, and Miller. “From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.” Roper, 543 U.S. at 570, 125 S.Ct. 1183. To protect the community, it may be rational to deprive an adult murderer of any hope of freedom. The morality of such a severe sentence rests on the need to incapacitate a dangerous person, to exact retribution, and to deter others from committing the same heinous crime. Those ethical considerations ring hollow when applied to a youth such as Dakotah.

Dakotah is not a hardened criminal; when he killed his grandfather, he was an extremely troubled young man. As quoted in Dakota's supplemental brief supporting his motion for a new trial the forensic report addressing his criminal responsibility elucidated that Dakotah

experienced a significant amount of loss in a relatively short period of time, namely the deaths of his cousin, dog and friend to suicide, not to mention the back drop of the very significant and repeated loss of his mother via abandonment. These losses would be difficult for any adolescent to cope with, but Mr. Eliason seems to have lacked the supports and guidance many others receive from their parents/family and even friends. As a result he appears to have been left to his own devices and he appears to have lacked the capabilities to gradually come to terms with these losses. Rather, they were forces which overwhelmed him.
Additionally, defense counsel elicited testimony from the forensic examiner at the posttrial evidentiary hearing that the trauma Dakotah experienced triggered him to view the world “like he was watching a movie” so that “everything appear[ed] to be fantasy,” thereby explaining Dakotah's actions.

Given Dakotah's emotional limitations at age 14, officially pronouncing that he is and forever will be irretrievably depraved flies in the face of common sense. Dakotah's maturational shortcomings mirror those of the youthful offenders described in Roper, Graham, and Miller. These defendants lacked the ability to regulate negative and destructive behavior—a defining feature of adolescence. It is simply impossible to predict whether Dakotah will someday develop the ability to grasp the full horror of his crime and to employ that knowledge in his emotional growth. “Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation.” Graham, 560 U.S. at ––––, 130 S.Ct. at 2032. Because youthful offenders may grow and change, “irrevocable judgment[s] about” their characters offend our Constitution's proportionality guarantee. Id. at ––––, 130 S.Ct. at 2030.

Furthermore, mandatory lifetime incarceration of a teenager serves no valid penological purpose. “A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.” Id. at ––––, 130 S.Ct. at 2028. In Lorentzen, our Supreme Court described three primary “policy factors underlying criminal penalties”: rehabilitation, deterrence, and prevention. Lorentzen, 387 Mich. at 180, 194 N.W.2d 827. A mandatory lifetime sentence “does not even purport to serve a rehabilitative function.” Harmelin, 501 U.S. at 1028, 111 S.Ct. 2680 (Stevens, J., dissenting). As Graham explained, juvenile offenders are generally not susceptible to being deterred based on their propensity for making “impetuous and ill-considered” decisions. Graham, 560 U.S. at ––––, 130 S.Ct. at 2028–2029 (quotation marks and citation omitted). And while permanently incarcerating a juvenile likely eliminates the possibility that he or she will commit another homicide, this is an extraordinarily drastic measure given the very real possibility that age would accomplish the same result. “ Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” Miller, 567 U.S. at ––––, 132 S.Ct. at 2465.

Lorentzen and Bullock support that mandatory lifetime prison sentences may not be imposed on homicide offenders under age 18. By forbidding cruel punishment regardless of its commonality, Michigan's Constitution prohibits imposing a severe, mandatory sentence that ignores both an offender's circumstances and lacks applicability to the goals of punishment recognized in this state. The evolving standards of decency elegantly articulated in Graham and Miller represent “the moral sense of the people” that imprisoning children for life is a disproportionate penalty regardless of the crime. Furthermore, lifetime imprisonment of a child serves no rational purpose. Accordingly, I would hold that lifetime imprisonment of a juvenile offender violates Const. 1963, art. 1, § 16.

V. RESENTENCING DAKOTAH

When the trial court sentenced Dakotah to life imprisonment without possibility of parole, it rejected his counsel's argument that this sentence constituted a cruel or unusual punishment. “Other than his juvenile status,” the trial court opined, “there's really nothing about Mr. Eliason that makes him less culpable than any other person who has murdered another human being in cold blood.” The trial court spoke these words before the Supreme Court issued its decision in Miller. Accordingly, the majority correctly recognizes that Dakotah must be resentenced.

Despite that the trial court lacked the benefit of Miller 's reasoning when it imposed sentence, I believe that the trial court has clearly and unequivocally expressed its opposition to any sentence less than mandatory life. I quote the court's sentencing rationale at length here because I believe it demonstrates that the trial court has made up its mind about Dakotah, regardless of Miller:

In this case the defendant was examined by two mental health profession[al]s, including one selected by the defense. There's been no showing that the defendant suffered from any mental health or intellectual deficiency. To the contrary, all the evidence has been that Mr. Eliason is an intelligent and articulate young man. There was some testimony that Mr. Eliason was going through some personal problems. But other than the recent suicide of a close friend, which the court concedes is a major event in the life of any young person, any one, but otherwise he was attempting to work through problems common to many 14 year old boys.

His parents separated when he was young. He didn't get to spend enough time with his mother or his half-brother. He had some difficulty in meeting his father's expectations. His pet died. These are problems that certainly are—I'm not saying they're insubstantial, but they're certainly common to many 14 year old boys.

* * *

There are factors which in the court's view might make, and do make the defendant more culpable than perhaps other defendants who have committed first degree murder. He enjoyed a close relationship with his victim, and enjoyed—and had the benefit of his grandfather's frequent hospitality. Mr. Eliason was welcomed almost every weekend into the victim's home and treated [it] as a weekend refuge from his own—life with his own family.

There has been no mitigating explanation provided for the murder. And the reason for the killing apparently remains a mystery to this day.

Mr. Eliason's testimony showed he spent several hours quietly contemplating whether or not to kill his grandfather. And then after that period of contemplation was over, shot his grandfather in the head while his grandfather slept. When the murder weapon was found the hammer on the revolver was cocked, and there were five live rounds in the chamber.

And the court, along with the jury, listened carefully to the recorded statements given by Mr. Eliason at the scene, later at the law enforcement complex, and remarks that he made to Deputy Casto while he was seated in the back of Deputy Casto's patrol car. Mr. Eliason showed a remarkable lack of emotion or remorse after the shooting and talked about the situation in a very calm and matter of fact way.

There—the court has been presented with nothing to convince [sic] that a life without parole sentence is particularly cruel and unusual when imposed upon Mr. Eliason in particular. And as I said, certain aspects of the case show that such a sentence is particularly appropriate when applied to Mr. Eliason. So the court does not find that a life without parole sentence for Mr. Eliason, convicted of first degree murder is in violation of the constitution as cruel and unusual. [Emphasis added.]

It is unreasonable to expect that the trial court will simply discard these sincerely held views in light of Miller. The trial court's words make abundantly clear its rejection that the mitigating factors of youth described in Miller, Graham, and Roper should be applied to Dakotah. To preserve the appearance of fairness and justice, a different judge should resentence Dakotah. See People v. Evans, 156 Mich.App. 68, 71–72, 401 N.W.2d 312 (1986).