PEOPLE OF MI V RAYMOND CURTIS CARP (Authored Opinion)
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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION November 15, 2012 9:05 a.m. Plaintiff-Appellee, v No. 307758 St. Clair Circuit Court LC No. 06-001700-FC RAYMOND CURTIS CARP, Defendant-Appellant. Before: TALBOT, P.J., and FITZGERALD and WHITBECK, JJ. TALBOT, P.J. A jury convicted defendant Raymond Curtis Carp of first-degree murder1, armed robbery2, larceny in a building3, and larceny of property worth $1,000 or more but less than $20,000.4 The trial court sentenced Carp to mandatory life imprisonment without parole for the first-degree murder conviction, 15 to 30 years imprisonment for the armed robbery conviction and one to four years imprisonment for both of the larceny convictions, to be served concurrently. Following an appeal as of right, this Court affirmed his convictions and sentences.5 The Michigan Supreme Court denied Carp s subsequent application to it.6 Following the trial court s denial of his motion for relief from judgment, Carp again applied to this Court for delayed leave to appeal, which this Court denied.7 Subsequently, this Court 1 MCL 750.316. 2 MCL 750.529. 3 MCL 750.360. 4 MCL 750.356(3)(a). 5 People v Carp, unpublished opinion per curiam of the Court of Appeals, issued December 30, 2008 (Docket No. 275084). 6 People v Carp, 483 Mich 1111; 766 NW2d 839 (2009). 7 People v Carp, unpublished order of the Court of Appeals, entered June 8, 2012 (Docket No. 307758). -1- granted Carp s motion for reconsideration of that order8 to address his contention of entitlement to resentencing following the recent decision by the United States Supreme Court in Miller v Alabama.9 We affirm. I. Standard of Review [W]hether a United States Supreme Court decision applies retroactively presents a question of law that we review de novo. 10 II. People v Carp The events leading to Carp s conviction involved the murder of Mary Ann McNeely in her home on May 31, 2006. At that time, Carp was 15 years of age. Carp s 22-year-old halfbrother11, Brandon Gorecki, began to reside with the victim after his mother told him to leave the family residence due to his continued drug use. Their mother permitted Carp to visit his halfbrother and spend the night at the victim s home. That night, Gorecki became involved in a verbal argument and physical confrontation with his girlfriend at the victim s residence. According to Gorecki s girlfriend, the victim intervened, affording the girlfriend an opportunity to leave the premises. Following this confrontation, Carp and Gorecki left the victim s residence but returned a short time later. Gorecki and the victim began to argue and the argument evolved into a physical confrontation. Although Gorecki denied an ability to recall the events that transpired due to his use of drugs and alcohol, he admitted to stabbing the victim more than once in the neck area and also to striking her in the head with a mug. According to Gorecki, during this confrontation, Carp threw a mug at the victim and closed the drapes. Gorecki acknowledged trying to clean up the victim s blood and to removing electronic equipment from the victim s home. Gorecki also took the victim s truck while Carp accompanied him. The medical examiner indicated that the victim had 23 stab wounds to the face and neck and nine stab wounds to the torso along with incised wounds to the victim s extremities and numerous blunt force injuries including lacerations and bruises to the skin and fractures of the skull and injuries to the brain. Neither Carp nor Gorecki returned to the victim s home to determine her status or to secure any assistance for her. It was not until June 1, 2006, following the receipt of a telephone call from Gorecki that his mother and a friend went to the victim s home to investigate and contacted police when they encountered bloody footprints. 8 People v Carp, unpublished order of the Court of Appeals, entered August 9, 2012 (Docket No. 307758). 9 Miller v Alabama, ___ US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012). 10 People v Gomez, 295 Mich App 411, 414; 820 NW2d 217 (2012). 11 Carp and Gorecki have the same mother, Margie Carp. -2- At trial the prosecutor presented evidence regarding statements by Carp to friends after the murder, indicating that he had thrown a mug at the victim and that Gorecki subsequently stabbed her. Although Carp admitted to another individual that he threw a mug at the victim, he denied knowing whether it made contact because his eyes were closed. To another friend, Carp stated that he struck the victim in the back of the head with a mug he had removed from the freezer and that, at the direction of Gorecki, he closed the blinds and windows. Carp also said that he held the victim down while [Gorecki] kneed her face and that Gorecki asked him for a knife, which Carp handed to him. Purportedly, Carp indicated that the victim was a horrible person and deserved to die. Carp s statements to police varied. While acknowledging the argument between the victim and Gorecki, Carp asserted that both were intoxicated and that Gorecki began to strike the victim and grabbed a knife from a kitchen drawer. Carp denied seeing Gorecki stab the victim or assisting in trying to clean up the blood. In a later interview, Carp denied striking the victim and indicated that he was unable to assist Gorecki in the clean up as he became ill. During his third interview with police, Carp admitted he struck the victim with a heavy glass because Gorecki was wrestling on the kitchen floor with the victim and stated to him, [h]elp me, man. Help me, help me . . . . What do you want me to do. Bust, bust her in the head. Carp further admitted to closing the drapes and shutting the windows and that he assisted in taking the electronic equipment, placing the items in the victim s truck. At trial, Carp asserted duress as his primary defense. As stated above, the jury convicted Carp of first-degree murder, armed robbery, larceny in a building, and larceny of property worth $1,000 or more but less than $20,000. The trial court sentenced Carp on November 20, 2006. A pre-sentence investigation report was prepared and made available to the sentencing court. When queried by the trial court, the prosecutor stated the following as factors to be considered in sentencing, relevant to the circumstances of this case: [T]his is a situation where the Court has heard the testimony in this case and you, I believe, have the best understanding, objective and rational understanding of exactly what happened here and this Defendant s role in it. I think as it s been demonstrated in the PSI [presentence investigation report], in the Defendant s comments and his statements to the investigating officer in this case, he has never in any way, shape or form accepted responsibility for his role in what happened to this victim. He has never in any way, shape or form acknowledged that had it not been for his assistance to his brother, [the victim] may be alive today. And I find that to be extremely unfortunate, and it s unfortunate because the Defendant does not accept his role and does not indicate to the Court that he understands his part in what happened. This court knows exactly how violent and how brutal this murder was and obviously the statutes in place dictate what the sentence must be in this case, but irrespective of that I believe that the recommendation is appropriate on all accounts and I would ask the Court to follow it. -3- Citing to case law and statutes pertaining to disposition hearings for juveniles12, defense counsel at sentencing began to discuss factors for a designated waiver case, suggesting the court was authorized to impose either juvenile disposition . . . an adult sentence . . . or blended sentence. Defense counsel asserted that sentencing Carp to life imprisonment without parole was inherently unjust based on his level of participation and lesser culpability in commission of the crime. At this point, the prosecutor and sentencing court clarified that the factors were not applicable because this was an automatic waiver case. Seemingly in anticipation of the Miller Court s decision, defense counsel continued. While recognizing that Carp had some culpability in the crime, which demanded public punishment counsel asserted that: [B]ut when the public punishment is one of mandatory life without the possibility of parole for a 15-year-old that presents himself to this Court with absolutely no prior record whatsoever and without at least in my opinion, a direct and intentional culpability or responsibility in the commission of this crime, I think [it] is inherently unjust, I think it s inherently unfair, and at the very least completely inappropriate with respect to individual, individualizing a sentencing that s appropriate to this Defendant. In sentencing Carp to life without parole, the trial court commented: This is probably the most horrific case that I ve been involved with in my entire career, the brutality of this act that was committed on the victim, my recollection is that even to the extent that the testimony of the doctor indicated there was actually no blood left in her body. The Court can t help but note that there were several opportunities that this Defendant had to, to escape, leave, get away, assist her in some way, and I there s just I can t find an explanation that I for the fact that he didn t do that, from the testimony, the evidence that I heard during the course of this trial. There s nothing that I can muster or conjure up to explain to me why he didn t do that. I know there s strong discussion that he was under the influence of his stepbrother was a bad actor to say the least, but this 15-year-old and then now 16year-old, certainly had the sufficient faculties that he there s no reason why he couldn t understand what was going on and what he, what he could have or should have done, and the unfortunate conclusion is that the victim is dead, and I believe that under the circumstances, the conviction is proper, it s within the law, and is then for the Court obligated to follow the law. 12 People v Petty, 469 Mich 108; 665 NW2d 443 (2003); MCL 712A.18. -4- III. The Past as Prologue A. Introduction The importance of the past in shaping the present is recognized in William Shakespeare s The Tempest, when Antonio states, Whereof what s past is prologue, In yours and my discharge. 13 Although the Miller decision is the premise for our reconsideration of Carp s sentencing, it useful for this Court and trial courts that may implement this opinion, to obtain an understanding of the historical context of United States Supreme Court rulings regarding Eighth Amendment jurisprudence that culminated in Miller. Preliminarily, the Eighth Amendment provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society. This is because [t]he 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. The Cruel and Unusual Punishments Clause prohibits the imposition of inherently barbaric punishments under all circumstances. [P]unishments of torture, for example, are forbidden. These cases underscore the essential principle that, under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes. For the most part, however, the Court s precedents consider punishments challenged not as inherently barbaric but as disproportionate to the crime. The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution s ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to [the] offense. 14 13 Act II, scene i. 14 Graham v Florida, ___ US ___; 130 S Ct 2011, 2021; 176 L Ed 2d 825 (2010) (citations omitted, emphasis supplied). -5- B. Rummel v Estelle: Mandatory Life Sentences For Adults In Rummel v Estelle15, the United States Supreme Court rejected an adult defendant s contention that his mandatory life sentence constituted cruel and unusual punishment under the Eighth Amendment. Five justices upheld defendant s mandatory life sentence in accordance with Texas law, which required a life sentence based on a recidivist sentencing statute for second and third felony convictions. The Texas trial court sentenced defendant premised on his third conviction for felonies involving the fraudulent use of a credit card, forgery and felony theft. The majority of justices of the United States Supreme Court specifically recognized the authority of the Texas legislature to impose sentences of increasing length on repeat offenders and the state s interest in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established in its criminal law. 16 But the Court did not find a constitutional violation despite the fact that all three of defendant s convictions arose from nonviolent property offenses. The Court also emphasized evidence that defendants sentenced to life under the recidivist statutory scheme typically were eligible for parole in as early as 12 years. While alluding to and discussing earlier cases that reviewed punishments as grossly disproportionate to the charged offenses as demonstrating an Eighth Amendment violation, the Court did not adopt such a test or definition.17 Recognizing a proportionality principle, 18 the Court found the primary inquiry should comprise objective criteria in order to avoid judgments premised on subjective views or varying standards of individual judges.19 The Court deemed unpersuasive comparisons by the defendant to other states recidivist statutes.20 In his dissent, Justice Powell opined that Rummel s sentence was grossly disproportionate and that the possibility of parole was too speculative, rendering defendant s sentence a violation of the Eighth Amendment prohibition against cruel and unusual punishment. Citing the historical recognition and use of proportionality in the review of punishments, Justice Powell identified three factors for consideration: (a) the nature of the particular offense, including factual circumstances specific to the offender and his or her criminal history, (b) comparable sentencing schemes effectuated in other jurisdictions, and (c) punishments imposed by the state for other offenses.21 15 Rummel v Estelle, 445 US 263; 100 S Ct 1133; 63 L Ed 2d 382 (1980). 16 Id. at 276. 17 Id. at 271-272. 18 Id. at 274 n 11. 19 Id. at 275-276. 20 Id. at 279-280. 21 Id. at 295-306. -6- C. Solem v Helm: Proportionality In Sentencing Notably, Justice Powell was to write the majority opinion in Solem v Helm22, which again dealt with a sentence imposed under a recidivist statute. Defendant Helm engaged in six nonviolent felonies over a period of 15 years, which subjected him to life in prison without parole. In determining that the Eighth Amendment required proportionality between the offense and the punishment imposed, the majority held that although a reviewing court must give substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments, the Eighth Amendment necessitates a criminal sentence . . . be proportionate to the crime for which the defendant has been convicted and that no penalty is per se constitutional. 23 In determining constitutionality, the Court identified the following factors: (a) the gravity of the offense and the harshness of the penalty, (b) the sentences typically imposed in other jurisdictions for the same crime; and (c) the sentences imposed within the same jurisdiction for different offenses.24 The Court further indicated that the personal characteristics and history of the defendant and his offenses should also be considered.25 Consequently, the Court found that defendant s conviction violated the Eighth Amendment. Chief Justice Burger s dissent took issue with the failure to follow Rummel s rejection of a proportionality review except in extreme and rare instances in non-felony cases. D. Harmelin v Michigan: Exclusion of Mitigating Factors for Serious Crimes Eight years later, and closer to home, the Court found a Michigan statute imposing a life sentence without possibility of parole for the possession of more than 650 grams of cocaine did not offend the Eighth Amendment.26 Notably, the defendant had no previous felony convictions. The only area of specific concurrence amongst the justices was that when dealing with a serious crime, that the state could impose a severe punishment that excluded consideration of mitigating factors pertaining to a particular defendant without having violated the Eighth Amendment. The Court noted, We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further. 27 In contrast, the dissent emphasized a principle of proportionality in conjunction with the Eighth Amendment and endorsed the factors the Solem 22 Solem v Helm, 463 US 277; 103 S Ct 3001; 77 L Ed 2d 637 (1983). 23 Id. at 290. 24 Id. at 292. 25 Id. at 296-297 n 22, 303 n 32. 26 Harmelin v Michigan, 501 US 957, 994-996; 111 S Ct 2680; 115 L Ed 2d 836 (1991). 27 Id. at 996. -7- Court previously elucidated. Subsequent cases dealing with recidivist statutes again rejected a proportionality review.28 E. Roper v Simmons: Prohibition of the Death Penalty for Juveniles Beginning in 2005, the United States Supreme Court issued a series of decisions pertaining specifically to the Eighth Amendment and juveniles. In Roper v Simmons29 the Court determined the Eighth Amendment precluded the imposition of the death penalty on juvenile offenders.30 Noting a general public consensus against the imposition of such extreme punishment for juveniles, the Court went on to state: Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution. This principle is implemented throughout the capital sentencing process. States must give narrow and precise definition to the aggravating factors that can result in a capital sentence. In any capital case a defendant has wide latitude to raise as a mitigating factor any aspect of [his or her] character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. There are a number of crimes that beyond question are severe in absolute terms, yet the death penalty may not be imposed for their commission. The death penalty may not be imposed on certain classes of offenders, such as juveniles under 16, the insane, and the mentally retarded, no matter how heinous the crime. These rules vindicate the underlying principle that the death penalty is reserved for a narrow category of crimes and offenders.31 The Court proceeded to recognize differences between juveniles and adult offenders, referencing: (a) the lack of maturity and an underdeveloped sense of responsibility, (b) the vulnerability and susceptibility of juveniles to negative influences and outside pressure, including peer pressure, and (c) that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. 32 The Court went on to rule that [t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes 28 See Ewing v California, 538 US 11; 123 S Ct 1179; 155 L Ed 2d 108 (2003) and Lockyer v Andrade, 538 US 63; 123 S Ct 1166; 155 L Ed 2d 144 (2003). 29 Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005). 30 The case specifically abrogated Stanford v Kentucky, 492 US 361; 109 S Ct 2969; 106 L Ed 2d 306 (1989). 31 Id. at 568-569 (internal citations omitted). 32 Id. at 569-570. -8- were committed. 33 Of note is the Court s recognition that the existence of the alternative penalty of life without parole assisted in justifying the decision to preclude use of the death penalty for specified juveniles, stating To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person. 34 In her dissent Justice O Connor, while recognizing the legitimacy of proportionality concerns in imposition of the death penalty, implied the existence of a procedural failsafe precluding the necessity of categorical rules, stating: The proportionality issues raised by the Court clearly implicate Eighth Amendment concerns. But these concerns may properly be addressed not by means of an arbitrary, categorical age-based rule, but rather through individualized sentencing in which juries are required to give appropriate mitigating weight to the defendant's immaturity, his susceptibility to outside pressures, his cognizance of the consequences of his actions, and so forth. In that way the constitutional response can be tailored to the specific problem it is meant to remedy. The Eighth Amendment guards against the execution of those who are insufficient[ly] culpab[le], in significant part, by requiring sentencing that reflect[s] a reasoned moral response to the defendant s background, character, and crime. Accordingly, the sentencer in a capital case must be permitted to give full effect to all constitutionally relevant mitigating evidence. A defendant s youth or immaturity is, of course, a paradigmatic example of such evidence.35 Justice Scalia s dissent sought to distinguish between juveniles engaged in risky or antisocial behavior from those executing heinous, premeditated acts. Specifically: Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are at least sometimes just as culpable as adults. Christopher Simmons, who was only seven months shy of his 18th birthday when he murdered Shirley Crook, described to his friends beforehand [i]n chilling, callous terms, as the Court puts it the murder he planned to commit. He then broke into the home of an innocent woman, bound her with duct tape and electrical wire, and threw her off a bridge alive and conscious. In their amici brief, the States of Alabama, Delaware, Oklahoma, Texas, Utah, and Virginia offer additional examples of murders committed by individuals under 18 33 Id. at 578. 34 Id. at 572. 35 Id. at 602-603 (citations omitted). -9- that involve truly monstrous acts. In Alabama, two 17 year olds, one 16 year old, and one 19 year old picked up a female hitchhiker, threw bottles at her, and kicked and stomped her for approximately 30 minutes until she died. They then sexually assaulted her lifeless body and, when they were finished, threw her body off a cliff. They later returned to the crime scene to mutilate her corpse. Other examples in the brief are equally shocking. Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death.36 F. Graham v Florida: Prohibition Of Life Sentences Without Parole For Juveniles Committing Crimes Other Than Homicide In Graham v Florida37, the precursor to Miller, the United States Supreme Court addressed the Eighth Amendment and the imposition of punishment entailing life in prison without parole for juveniles for crimes other than homicide. The majority determined that the Eighth Amendment precluded sentencing juveniles to life in prison without parole for crimes less than homicide. Noting concerns with proportionality and the reasons for incarceration encompassing both retribution and rehabilitation, the Court primarily focused on evidence in the behavioral and social sciences indicating the differences in juvenile brain functioning and lack of maturation. The Court found: Community consensus, while entitled to great weight, is not itself determinative of whether a punishment is cruel and unusual. In accordance with the constitutional design, the task of interpreting the Eighth Amendment remains our responsibility. The judicial exercise of independent judgment requires 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. In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals.38 Citing the Roper Court s recognition of the lessened culpability of juveniles and lack of maturity, the Court noted, A juvenile is not absolved of responsibility for his actions, but his transgression is not as morally reprehensible as that of an adult. 39 Further, 36 Id. at 618-619 (citations omitted). 37 Graham, 130 S Ct at 2011. 38 Id. at 2026 (citations and quotation marks omitted). 39 Id. at 2026. -10- 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. These matters relate to the status of the offenders in question; and it is relevant to consider next the nature of the offenses to which this harsh penalty might apply.40 The Court further distinguished and recognized the existence of a line between homicide and other serious violent offenses against the individual. 41 As a consequence of this distinction, when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis. 42 In his dissent Justice Thomas, joined in part by Justices Scalia and Alito, chastised the majority for misuse of the historical evaluation of Eighth Amendment cases dealing with cruel and unusual punishment as being restricted to especially tortuous methods of punishment rather than to the imposition of sentence and rejecting the concept of proportionality in regard to Eighth Amendment jurisprudence.43 Foreshadowing concerns that this Court must address regarding the establishment of rules and procedures in addition to determining precisely where a line is to be drawn, the dissent took issue with the Court s raising more questions than it answered, asserting: Both the Court and the concurrence claim their decisions to be narrow ones, but both invite a host of line-drawing problems to which courts must seek answers beyond the strictures of the Constitution. The Court holds that [a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime, but must provide the offender with some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. But what, exactly, does such a meaningful opportunity entail? When must it occur? And what Eighth Amendment principles will govern review by the parole boards the Court now demands that States empanel? The Court provides no answers to these questions, which will no doubt embroil the courts for years.44 40 Id. at 2026-2027 (citations and quotation marks omitted). 41 Id. at 2027 (citation omitted). 42 Id. 43 Id. at 2044. 44 Id. at 2057 (footnote and citations omitted). -11- IV. Miller v Alabama A. Introduction This evolution in the Court s decisions has left us ripe for the determination in Miller v Alabama45 and its companion case of Jackson v Hobbs, both involving 14-year-old offenders convicted of murder and sentenced to mandatory life in prison without the possibility of parole.46 The Court held that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eight Amendment s prohibition on cruel and unusual punishments. 47 With this ruling the Miller Court, in part, sought to resolve the ongoing dispute regarding the role and necessity of considering proportionality in sentencing. B. The Facts In Jackson Jackson, accompanied by two other minor boys, decided to rob a video store. While en route to the store Jackson discovered one of the boys was armed with a sawed-off shotgun. Jackson initially remained outside the store but entered while one of his cohorts was confronting the store clerk, demanding money and pointing the weapon. Jackson s cohort shot and killed the clerk following her assertion she would call the police. Arkansas prosecutors have discretion whether to charge a 14-year-old as an adult in conjunction with certain delineated offenses. The prosecutor charged Jackson with felony murder and aggravated robbery as an adult. Jackson sought to transfer his case to a juvenile court, but based on the factual circumstances, a psychiatric evaluation and his prior juvenile history, the Arkansas trial court denied his request. The jury convicted Jackson of both crimes, and the Arkansas trial court sentenced him to life in prison without parole. C. The Facts In Miller Similarly, Miller was 14 years of age at the time he committed his crime. Miller had a history of foster care placement premised on his mother s alcoholism and drug addiction. Evidence also indicated that his step-father abused Miller. Miller had a history of drug and alcohol use and a series of attempted suicides. Miller and a friend were at his home when a neighbor arrived to effectuate a drug deal with Miller s mother. Miller and his cohort followed the neighbor when he returned home and all three smoked marijuana and played drinking games. When the neighbor passed out, Miller stole his wallet. When Miller tried to replace the wallet, the victim grabbed Miller by the throat. Miller s friend struck the victim with a baseball bat. Despite being released from the victim s grip, Miller grabbed the bat and continued to strike the victim with multiple blows to the head. Miller and his friend left but returned to the crime scene and started two fires to destroy evidence of the crime. The victim died of his injuries and smoke inhalation. While Alabama law required the prosecutor to initially charge Miller as a 45 Miller v Alabama, ___ US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012). 46 Id. at 2460. 47 Id. -12- juvenile, the prosecutor was also permitted to remove the case to adult court. The prosecutor charged Miller as an adult with murder in the course of an arson, which carried a mandatory life sentence without parole. D. The Majority Opinion In Miller In discussing Eighth Amendment jurisprudence the Miller Court majority, with Justice Kagan authoring the opinion, noted it had recently, in Graham, addressed [t]he concept of proportionality as central to the Eighth Amendment. 48 The Miller majority further indicated that it view[ed] that concept less through a historical prism than according to the evolving standards of decency that mark the progress of a maturing society. 49 The Miller majority reviewed two strands of precedent reflecting our concern with proportionate punishment. The first strand has adopted categorical bans on mismatches between the culpability of a class of offenders and the severity of a penalty. The second strand prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death. The Miller majority found the confluence of these two lines of precedent leads to the conclusion that mandatory lifewithout-parole sentences for juveniles violate the Eighth Amendment. 50 The Miller majority reviewed decisions recognizing the inherent differences between juvenile and adult offenders and how these characteristics impact both the justification for and the appropriateness of imposing a life sentence without parole on a juvenile, finding, An offender s age . . . is relevant to the Eighth Amendment, and so criminal procedure laws that fail to take defendants youthfulness into account at all would be flawed. 51 The Miller majority found the imposition of a mandatory sentence to be particularly subject to criticism. Specifically: 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.52 48 Id. at 2463. 49 Id. (citations and quotation marks omitted). 50 Id. at 2464. 51 Id. at 2465-2466 (citation omitted). 52 Id. at 2466. -13- Highlighting the special pertinence of its earlier rulings the Miller majority reaffirmed that a sentencer have the ability to consider the mitigating qualities of youth. Emphasizing that youth is more than a chronological fact, the Miller majority noted that this period of life comprised a time when a person may be most susceptible to influence and to psychological damages, with signature qualities of a transient nature.53 The Miller majority explained the flaw inherent in imposing a mandatory sentence of life in prison without parole on a juvenile, stating: Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other the 17 year old and the 14 year old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14 year olds) will receive the same sentence as the vast majority of adults committing similar homicide offenses but really, as Graham noted, a greater sentence than those adults will serve. In meting out the death penalty, the elision of all these differences would be strictly forbidden. And once again, Graham indicates that a similar rule should apply when a juvenile confronts a sentence of life (and death) in prison.54 The Miller majority proceeded to delineate the requirements for consideration when sentencing a juvenile for a homicide: [I]n imposing a State s harshest penalties, a sentencer misses too much if he treats every child as an adult. To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him and from which he cannot usually extricate himself no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.55 53 Id. at 2467. 54 Id. at 2467-2468 (footnote omitted). 55 Id. at 2468 (citations omitted). -14- The Miller majority concluded that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. 56 The Miller majority did reject, however, arguments for a categorical bar to sentencing juveniles to life in prison without parole, stating [W]e do not foreclose a sentencer s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. 57 The Miller majority emphasized that its decision served to: [M]andate[] only that a sentence follow a certain process considering an offender s youth and attendant characteristics before imposing a particular penalty. And in so requiring, our decision flows straightforwardly from our precedents: specifically, the principle of Roper, Graham, and our individualized sentencing cases that youth matters for purposes of meting out the law s most serious punishments. When both of those circumstances have obtained in the past, we have not scrutinized or relied in the same way on legislative enactments. 58 Addressing the statutory sentencing schemes in various states, the Miller Court noted: Almost all jurisdictions allow some juveniles to be tried in adult court for some kinds of homicide. But most States do not have separate penalty provisions for those juvenile offenders. Of the 29 jurisdictions mandating life without parole for children, more than half do so by virtue of generally applicable penalty provisions, imposing the sentence without regard to age. And indeed, some of those States set no minimum age for who may be transferred to adult court in the first instance, thus applying life-without-parole mandates to children of any age be it 17 or 14 or 10 or 6. . . . [W]e think that underscores that the statutory eligibility of a juvenile offender for life without parole does not indicate that the penalty has been endorsed through deliberate, express, and full legislative consideration.59 Notably, the Miller majority found the existence of transfer statutes effectuated in some states insufficient to rectify the identified procedural problem. It recognized that [o]f the 29 relevant jurisdictions, about half place at least some juvenile homicide offenders in adult court automatically, with no apparent opportunity to seek transfer to juvenile court. 60 According to 56 Id. at 2469. 57 Id. (footnote omitted). 58 Id. at 2471. 59 Id. at 2473 (citations and footnotes omitted). 60 Id. at 2474. -15- the Miller majority, Even when States give transfer-state discretion to judges, it has limited utility based on the absence of significant information at that stage of proceedings regarding the offender and the circumstances of the crime. Recognizing that the question at transfer hearings may differ dramatically from the issue at a post-trial sentencing, the Miller majority noted that transfer decisions often present a choice between extremes: light punishment as a child or standard sentencing as an adult. 61 The Miller majority went on to suggest that [d]iscretionary sentencing in adult court would provide different options: There, a judge or jury could choose, rather than a life-without-parole sentence, a lifetime prison term with the possibility of parole or a lengthy term of years. 62 In sum, Miller requires a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eight Amendment s ban on cruel and unusual punishment. 63 E. The Miller Concurrence In his concurrence Justice Breyer, joined by Justice Sotomayor, suggests a distinction must inherently be drawn, similar to that used in capital cases, between juveniles involved in homicides but who lack an intent to kill for the imposition of life sentences without parole. In other words, according to Justice Breyer, the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim. 64 F. The Miller Dissents The dissent authored by Chief Justice Roberts and joined by Justices Scalia, Thomas and Alito, chastised the Miller majority for trying to answer grave and challenging questions of morality and social policy rather than apply[ing] the law. 65 Asserting the existence of dissonance between the Court s use of the Eight Amendment to ban a punishment that the Court does not characterize as unusual, the Miller dissent noted the inherent inconsistency of the majority s reasoning, stating: Put simply, if a 17 year old is convicted of deliberately murdering an innocent victim, it is not unusual for the murderer to receive a mandatory sentence of life 61 Id. 62 Id. at 2474-2475 (emphasis in original). 63 Id. at 2475. 64 Id. at 2475-2476. 65 Id. at 2477. -16- without parole. That reality should preclude finding that mandatory life imprisonment for juvenile killers violates the Eighth Amendment.66 Taking issue with the subjective nature of the majority s reasoning, the Miller dissent further argued that the current national consensus supports the practice of sentencing juveniles convicted of homicide offenses to mandatory life without parole as demonstrated by the number of jurisdictions that have enacted such legislation. The Miller dissent criticized the majority for ignoring this objective indicia of society s standards and instead, imposing our own subjective values or beliefs. 67 The Miller dissent expressed further concern regarding the overreaching nature and future implications of the majority s decision, stating: Today s holding may be limited to mandatory sentences, but the Court has already announced that discretionary life without parole for juveniles should be uncommon or, to use a common synonym, unusual. 68 The Miller dissent opined: This process has no discernible end point or at least none consistent with our Nation's legal traditions. Roper and Graham attempted to limit their reasoning to the circumstances they addressed Roper to the death penalty, and Graham to nonhomicide crimes. Having cast aside those limits, the Court cannot now offer a credible substitute, and does not even try. After all, the Court tells us, none of what [Graham] said about children . . . is crime-specific. The principle behind today s decision seems to be only that because juveniles are different from adults, they must be sentenced differently. There is no clear reason that principle would not bar all mandatory sentences for juveniles, or any juvenile sentence as harsh as what a similarly situated adult would receive. Unless confined, the only stopping point for the Court s analysis would be never permitting juvenile offenders to be tried as adults. Learning that an Amendment that bars only unusual punishments requires the abolition of this uniformly established practice would be startling indeed.69 Justice Alito also focused on a somewhat arbitrary age distinction between offenders, asserting: The category of murderers that the Court delicately calls children (murderers under the age of 18) consists overwhelmingly of young men who are fast approaching the legal age of adulthood. . . . Seventeen-year-olds commit a significant number of murders every year, and some of these crimes are incredibly 66 Id. at 2477. 67 Id. at 2477-2479 (citations omitted). 68 Id. at 2481. 69 Id. at 2481-2482 (citations omitted). -17- brutal. Many of these murderers are at least as mature as the average 18-yearold.70 Emphasizing the sensibility of having sentencing policy remain exclusively in the realm of legislative action, Justice Alito opined: The Eighth Amendment imposes certain limits on the sentences that may be imposed in criminal cases, but for the most part it leaves questions of sentencing policy to be determined by Congress and the state legislatures and with good reason. Determining the length of imprisonment that is appropriate for a particular offense and a particular offender inevitably involves a balancing of interests. If imprisonment does nothing else, it removes the criminal from the general population and prevents him from committing additional crimes in the outside world. When a legislature prescribes that a category of killers must be sentenced to life imprisonment, the legislature, which presumably reflects the views of the electorate, is taking the position that the risk that these offenders will kill again outweighs any countervailing consideration, including reduced culpability due to immaturity or the possibility of rehabilitation. When the majority of this Court countermands that democratic decision, what the majority is saying is that members of society must be exposed to the risk that these convicted murderers, if released from custody, will murder again. Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed. The Constitution does not authorize us to take the country on this journey.71 While the Miller dissents do not provide direct guidance for resolving the issues that Miller creates, the dissents do serve to highlight and emphasize concerns regarding the full implication of the Miller decision on Michigan s juvenile sentencing scheme. IV. Retroactivity A. Introduction A significant, and to Carp a dispositive, threshold matter to be confronted by this Court is whether Miller is to be given retroactive application.72 Historically, whether to apply a decision 70 Id. at 2489. 71 Id. at 2490. 72 We note that none of the parties dispute that Carp s appeal to this Court is on collateral review and was brought pursuant to MCR 6.500 et seq. Carp s conviction became final when [his] time for a direct appeal expired. See Gomez, 295 Mich App at 414, citing Beard v Banks, 542 US 406, 411; 124 S Ct 2504; 159 L Ed 2d 494 (2004) (standing for the proposition that convictions are final when the availability of direct appeal is exhausted and the time for seeking -18- retroactively is premised on the status of the case being on direct rather than collateral review. Direct review involves the exhaustion of state appellate proceedings, which culminates in a judgment of conviction being finalized. In accordance with federal law73, a challenged state judgment is rendered final upon conclusion for direct review of the expiration of the time for seeking such review. Discussing the concept of finality in the context of direct review, the United States Supreme Court explains: The text of § 224(d)(1)(A), which marks finality as of the conclusion of direct review or the expiration of the time for seeking such review, consists of two prongs. Each prong the conclusion of direct review and the expiration of the time for seeking such review relates to a distinct category of petitioners. For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the conclusion of direct review when this Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the expiration of the time for seeking such review when the time for pursuing direct review in this Court, or in state court, expires.74 In contrast, the United States Supreme Court has defined collateral review . . . by considering the ordinary understanding of the phrase. . . . 75 Turning to dictionary definitions, the Court stated: The term collateral, in its customary and preferred sense, means [l]ying aside from the main subject, line of action, issue, purpose, etc.; . . . subordinate, indirect[.] By definition, something that is collateral is indirect, not direct. This suggests that collateral review is review that is [l]ying aside from the main review, i.e., that is not part of direct review. *** Our prior usage of the term collateral also supports this understanding. We have previously described a variety of proceedings as collateral, and all of these proceedings share the characteristic that we have identified, i.e., they stand apart from the process of direct review.76 Concomitant with a consideration of whether a case is on direct versus collateral review is the additional consideration of whether any new rule announced in the decision is substantive a writ of certiorari has also expired). Because Carp s conviction is final, he is entitled to relief only if a retroactive change in the law has altered the validity of his . . . conviction. Gomez, 295 Mich App at 415, citing MCR 6.500 et seq. 73 28 USC 2244(d)(1)(A). 74 Gonzalez v Thaler, ___ US ___; 132 S Ct 641, 653-654; 181 L Ed 2d 619 (2012). 75 Wall v Kholi, ___ US ___; 131 S Ct 1278, 1284; 179 L Ed 2d 252 (2011). 76 Id. (citations omitted). -19- or procedural in nature.77 While one would assumed that such distinctions are simple to discern and apply, the Court has recognized its decisions pertaining to retroactivity rendered between 1965 and 1987 have been particularly confusing. 78 Specifically: [W]e note at the outset that the very word retroactivity is misleading because it speaks in temporal terms. Retroactivity suggests that when we declare that a new constitutional rule of criminal procedure is nonretroactive, we are implying that the right at issue was not in existence prior to the date the new rule was announced. But this is incorrect. As we have already explained, the source of a new rule is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the retroactivity of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.79 B. The Linkletter Rule: Prospective Application Only The first time the United States Supreme Court expressly considered the issue of retroactivity was in Linkletter v Walker.80 There, the Court sought to determine whether the courts should apply the Mapp v Ohio81 exclusionary rule retroactively to cases on collateral review. The Court determined that the retroactivity of Mapp should be determined by examining the purpose of the exclusionary rule, the reliance of the States on prior law, and the effect on the administration of justice of a retroactive application of the exclusionary rule. 82 Ultimately, using this standard, the Linkletter Court determined that the courts should apply the exclusionary rule only prospectively.83 Later, in a separate opinion in Mackey v United States84 Justice Harlan asserted his belief that new rules should not, in general, be applied retroactively to cases on collateral review. He 77 See Whorton v Bockting, 549 US 406, 416; 127 S Ct 1173; 167 L Ed 2d 1 (2007); Teague v Lane, 489 US 288, 305, 310; 109 S Ct 1060; 103 L Ed 2d 334 (1989); Griffith v Kentucky, 479 US 314; 107 S Ct 708; 93 L Ed 2d 649 (1987). 78 Danforth v Minnesota, 552 US 264, 271; 128 S Ct 1029; 169 L Ed 2d 859 (2008). 79 Id. (footnote omitted). 80 Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), abrogated in part Davis v United States, ___ US ___; 131 S Ct 2419; 180 L Ed 2d 285 (2011). 81 Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961). 82 Teague, 489 US at 302. 83 Id. 84 Mackey v United States, 401 US 667; 91 S Ct 1160; 28 L Ed 2d 404 (1971) (Harlen, J., concurring in part and dissenting in part). -20- identified only two exceptions to his general rule of nonretroactivity. . . . First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Second, a new rule should be applied retroactively if it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty. 85 C. Griffith: Rejection Of The Linkletter Prospective Only Rule Because of difficulties in the application and the lack of consistency resulting from use of the Linkletter rule the Court subsequently rejected the rule in Griffith.86 The Court: rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced and adopted the first part of the retroactivity approach advocated by Justice Harlan. We agreed with Justice Harlan that failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication. We gave two reasons for our decision. First, we can only promulgate new rules in specific cases and cannot possibly decide all cases in which review is sought, the integrity of judicial review requires the application of the new rule to all similar cases pending on direct review. . . . Second, because selective application of new rules violates the principle of treating similarly situated defendants the same, we refused to continue to tolerate the inequity that resulted from not applying new rules retroactively to defendants whose cases had not yet become final. 87 The Griffith Court definitively stated, a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a clear break with the past. 88 D. Teague: Adoption Of The Harlan Approach And Its Exceptions In Teague89 the Court adopt[ed] Justice Harlan s view of retroactivity for cases on collateral review, stating, [u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced. 90 The Teague Court expanded on and 85 Teague, 489 US at 305-307, quoting Mackey, 401 US at 692, 693. 86 Griffith, 479 US at 314. 87 Teague, 489 US at 304 (citations omitted). 88 Griffith, 479 US at 328. 89 Teague, 489 US at 305, 310. 90 Id. at 310. -21- modified Justice Harlan s second exception that a new rule should be applied retroactively if it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty to mean that the second exception . . . be reserved for watershed rules of criminal procedure, explaining: Typically, it should be the case that any conviction free from federal constitutional error at the time it became final, will be found, upon reflection, to have been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However, in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction. For example, such, in my view, is the case with the right to counsel at trial now held a necessary condition precedent to any conviction for a serious crime.91 The Court indicated a continuing concern with inequitable treatment and opined, We can simply refuse to announce a new rule in a given case unless the rule would be applied retroactively to a defendant in the case and to all others similarly situated. 92 Consequently, the Court held that, implicit in the retroactivity approach we adopt today, is the principle that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two exceptions we have articulated. 93 Years later in Whorton v Bockting94 the Court reaffirmed its holding in Teague, stating, Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review. Exceptions exist, and [a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a watershed rul[e] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. 95 The Court defined a new rule as a rule that . . . was not dictated by precedent existing at the time the defendant s conviction became final. 96 The Court also noted that the exception pertaining to watershed rules is both extremely narrow and unlikely. 97 To qualify as a watershed rule the Court asserted that a new rule must meet 91 Id. at 311-312, quoting Mackey, 401 US at 693-694 (emphasis added in Teague). 92 Teague, 489 US at 316. 93 Id. (emphasis in original). 94 Whorton, 549 US at 406. 95 Id. at 416 (citations omitted). 96 Id. (citation omitted). 97 Id. at 417, 419 (footnote added). The Court indicated that the only case having met this criteria was Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963). -22- two requirements. First the rule must be necessary to prevent an impermissibly large risk of an inaccurate conviction. Second, the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. 98 E. Applying The United States Supreme Court s Retroactivity Standards 1. Miller Enunciates A New Rule Applying these standards, it is uncontested that Miller falls within the definition of a new rule because it was not dictated by precedent existing at the time the defendant s conviction became final. 99 [T]here can be no dispute that a decision announces a new rule if it expressly overrules a prior decision. 100 While not contested, the characterization of the Miller decision as comprising a new rule is of importance because: When a decision of this Court results in a new rule, that rule applies to all criminal cases still pending on direct review. As to convictions that are already final, however, the rule applies only in limited circumstances. New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State s power to punish. . . . Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him. New rules of procedure, on the other hand, generally do not apply retroactively. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Because of this more speculative connection to innocence, we give retroactive effect to only a small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. That a new procedural rule is fundamental in some abstract sense is not enough; the rule must be one without which the likelihood of an accurate conviction is seriously diminished. This class of rules is extremely narrow, and it is unlikely that any . . . ha[s] yet to emerge. 101 98 Whorton, 549 US at 418 (citations and quotation marks omitted). 99 Id. at 416 (citation omitted). 100 Graham, 506 US at 467. 101 Schriro v Summerlin, 542 US 348, 351-352; 124 S Ct 2519; 159 L Ed 2d 442 (2004) (internal citations and quotation marks omitted). -23- There is no dispute within this Court, by the litigants involved in this appeal or premised in federal law that Miller is applicable to all cases pending on direct review or not yet final. 102 What remains for this Court to determine is whether Miller is also to be applied retroactively to those cases on collateral review. Having determined that Miller comprises a new rule, the next step in the analysis is for this Court to discern whether the new rule is substantive or procedural in nature; and if procedural whether it falls within a recognized exception to the rule of non-retroactivity. As noted, our decision whether Miller is to be applied retroactively to cases on collateral review will be dispositive to Carp s appeal. Carp s appeal is, without question, before us on collateral review. If Miller s new rule is substantive, we can apply it retroactively in such collateral review to consider the merits of Carp s appeal. If, however, Miller s new rule is procedural only and fails to meet any of the delineated Teague exceptions, then we cannot apply it retroactively to Carp s appeal. While the distinction between substance and procedure is an important one 103 it is not necessarily always a simple matter to divine.104 The Supreme Court has indicated that decisions of criminal procedure encompass those which implicate the functioning of the criminal trial process. Retroactivity of new procedural rules is severely limited as only substantive new rules or decisions of procedure that incorporate into the criminal trial process a mechanism without [which] the likelihood of an accurate conviction is seriously diminished, referred to as watershed rules, are to be applied retroactively.105 Only these two exceptions have been identified to the general rule of nonretroactivity for cases on collateral review. 106 In summary, as described by the Teague Court: First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Second, a new rule should be applied retroactively if it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty. 107 Decisions characterized as comprising substantive criminal law extend beyond issues of procedural function and address the meaning, scope and application of substantive criminal 102 Teague, 489 US at 304-305; see also Davis v United States, ___ US ___; 131 S Ct 2419, 2430; 180 L Ed 2d 285 (2011). 103 Bousley v United States, 523 US 614, 620; 118 S Ct 1604; 140 L Ed 2d 828 (1998). 104 Robinson v Neil, 409 US 505, 509; 93 St Ct 876; 35 L Ed 2d 29 (1973). 105 Bousley, 523 US at 620, quoting Teague, 489 US at 313. 106 Teague, 489 US at 307. 107 Id. -24- statutes.108 In contrast, Teague has established that a new rule is procedural if it impacts the operation of the criminal trial process.109 By way of clarification, A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. In contrast, rules that regulate only the manner of determining the defendant s culpability are procedural. 110 Examining Miller s language and historical precedents, we find that it is procedural in nature. We recognize that Roper and Graham establish[ed] that children are constitutionally different from adults for purposes of sentencing. 111 And unlike its predecessors Miller specifically eschews a categorical ban on sentencing juveniles to life in prison without parole.112 The Miller Court indicated that its ruling was procedural in nature, stating, But where, as here, this Court does not categorically bar a penalty, but instead requires only that a sentence follow a certain process, this Court has not scrutinized or relied on legislative enactments in the same way. 113 Targeted prohibitions are by definition less restrictive than a categorical ban.114 While the Court opined that appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon, it specifically did not foreclose a sentencer s ability to make that judgment in homicide cases. . . . 115 When stating its ruling, the Court reiterated: Our decision does not categorically bar a penalty for a class of offenders or type of crime as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process considering an offender s youth and attendant characteristics before imposing a particular penalty. And in so requiring, our decision flows straightforwardly from our precedents: specifically, the principle of Roper, Graham, and our individualized sentencing cases that youth matters for purposes of meting out the law s most serious punishments.116 108 Bousley, 523 US at 620. See also Davis v United States, 417 US 333, 346; 94 S Ct 2298; 41 L Ed 2d 109 (1974) (indicating that included within the definition of substantive are those decisions that remove primary conduct from the purview of criminal punishment). 109 Bousley, 523 US at 620. 110 Schriro, 542 US at 353 (citations omitted). 111 Miller, 132 S Ct at 2464. 112 Id. at 2459, 2469. 113 Id. at 2459 (emphasis added). 114 See United States v Playboy Entertainment Group, Inc, 529 US 803, 815; 120 S Ct 1878; 146 L Ed 2d 865 (2000). 115 Miller, 132 S Ct at 2469. 116 Id. at 2471. -25- Consistent with the Court s reference and reliance on its earlier decisions, Graham justified and distinguished its imposition of a categorical ban of a mandatory sentence of life without parole for non-homicide offenders by indicating: The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. There is a line between homicide and other serious violent offenses against the individual. Serious nonhomicide crimes may be devastating in their harm . . . but in terms of moral depravity and of the injury to the person and to the public, . . . they cannot be compared to murder in their severity and irrevocability. This is because [l]ife is over for the victim of the murderer, but for the victim of even a very serious nonhomicide crime, life . . . is not over and normally is not beyond repair. Although an offense like robbery or rape is a serious crime deserving serious punishment, those crimes differ from homicide crimes in a moral sense.117 In Graham the Court drew a line and distinguished between homicide and non-homicide juvenile offenders and the sentences that could be imposed in conformance with the Eighth Amendment. That distinction was reasserted in the Miller Court s refusal to impose a categorical ban regarding the sentencing of juvenile homicide offenders to life in prison without parole. Our determination that Miller does not comprise a substantive new rule and, therefore, is not subject to retroactive application for cases on collateral review, is supported by the fact that the ruling does not place certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. 118 Miller does not alter the elements necessary for a homicide conviction. Rather it simply necessitates the consideration of certain factors, when juveniles are involved, in sentencing. In other words, Miller is not substantive as it does not serve to alter[] the range of conduct or class of persons that the law punishes, 119 merely the manner in which a punishment may be imposed. Juveniles can still be subject to a sentence of life in prison without parole. It is simply the manner and factors to be considered in the imposition of that particular sentence that Miller dictates, rendering the ruling procedural and not substantive in nature. This does not, however, end our inquiry. While Miller does not meet the substantive exception recognized in Teague, a second exception exists, which may render a new procedural rule retroactive on collateral review. A new rule applies retroactively in a collateral proceeding only if . . . the rule is a watershed rul[e] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. 120 In order to qualify as watershed, a new 117 Graham, 130 S Ct at 2027 (citations omitted). 118 Teague, 489 US at 307 (citation omitted). 119 Schriro, 542 US at 353. 120 Whorton, 549 US at 416, citing Saffle v Parks, 494 US 484, 495; 110 S Ct 1257; 108 L Ed 2d 415 (1990), quoting Teague, 489 US at 311. -26- rule must meet two requirements. First, the rule must be necessary to prevent an impermissibly large risk of an inaccurate conviction. Second, the rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. 121 In applying these requirements it is instructive to review Gideon v Wainwright122, as it comprises the only case to date identified as qualifying under the [watershed] exception. 123 The Gideon Court held that counsel must be appointed for any indigent defendant charged with a felony. When a defendant who wishes to be represented by counsel is denied representation, Gideon held, the risk of an unreliable verdict is intolerably high. The new rule announced in Gideon eliminated this risk. 124 The Miller ruling fails to satisfy the initial requirement pertaining to an impermissibly large risk of an inaccurate conviction. 125 Miller deals exclusively with sentencing and does not pertain to criminal trial procedures leading to conviction. Miller is focused solely on accuracy in sentencing and does not address or impinge on the accuracy of a juvenile defendant s conviction for a homicide offense. Addressing the second criteria that a watershed rule must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding, 126 the decision in Miller is not comparable to the rule the Court announced in Gideon. The Miller ruling has a more restrictive scope of application and does not relate to the accuracy of the factfinding process.127 Further, this second requirement to establish a watershed rule cannot be met simply by showing that a new procedural rule is based on a bedrock right. 128 The United States Supreme Court has consistently found that the Teague bar to retroactivity applies to new rules that are based on bedrock constitutional rights and [t]hat a new procedural rule is fundamental in some abstract sense is not enough. 129 Specifically, in order to meet this requirement, a new rule must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding. In applying this requirement, we again look to the example of Gideon, and we have not hesitated to hold that less sweeping and fundamental rules do not qualify. 130 While Miller will indisputably have an 121 Whorton, 549 US at 418 (internal citations and quotation marks omitted). 122 Gideon, 372 US at 335. 123 Whorton, 549 US at 419. 124 Id. 125 Id. at 418. 126 Id. at 418 (internal citations and quotation marks omitted). 127 Id. at 419. 128 Id. at 420-421. 129 Id. at 421 (citations omitted). 130 Id. (citations omitted). -27- impact on sentencing procedures for juveniles, it cannot be construed to qualify in the same category with Gideon . . . . [in having] effected a profound and sweeping change. 131 We must address one final issue of federal law before finalizing our determination on retroactivity. Carp and the amici here contend that the Miller Court impliedly rendered its decision retroactive through the remand of the companion case of Jackson v Hobbes, which they assert was clearly before the Court on collateral review. State convictions and sentences are final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied. 132 Specifically, Carp contends that in the companion case, Jackson had fully expended his appellate rights because the Arkansas Supreme Court had affirmed his convictions and, subsequently, dismissed his petition for habeas corpus.133 Yet, the Miller Court granted certiorari to both Miller and Jackson.134 Contrary to Carp s contention, the mere fact that the Court remanded Jackson for resentencing does not constitute a ruling or determination on retroactivity. Specifically: The only way the Supreme Court can, by itself, lay out and construct a rule s retroactive effect, or cause that effect to exist, occur, or appear, is through a holding. The Supreme Court does not ma[k]e a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts. In such an event, any legal conclusion that is derived from the principles is developed by the lower court (or perhaps by a combination of courts), not by the Supreme Court. We thus conclude that a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive.135 In addition: The nonretroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final. A threshold question in every habeas case, therefore, is whether the court is obligated to apply the Teague rule to the defendant's claim. We have recognized that the nonretroactivity principle is not jurisdictional in the sense that [federal courts] . . . must raise and decide the issue sua sponte. Thus, a federal court may, but need not, decline to apply Teague if the State does not argue it. But if the State does argue that the 131 Id. (citations and quotation marks omitted). 132 Caspari v Bohlen, 510 US 383, 390; 114 S Ct 948; 127 L Ed 2d 236 (1994). 133 Miller, 132 S Ct at 2461. 134 Id. at 2463. 135 Tyler v Cain, 533 US 656, 663; 121 S Ct 2478; 150 L Ed 2d 632 (2001) (footnotes omitted). -28- defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim.136 This is consistent with the Court s determination in Schiro v Farley, which provides: Nevertheless, the State failed to argue Teague in its brief in opposition to the petition for a writ of certiorari. In deciding whether to grant certiorari in a particular case, we rely heavily on the submissions of the parties at the petition stage. If, as in this case, a legal issue appears to warrant review, we grant certiorari in the expectation of being able to decide that issue. Since a State can waive the Teague bar by not raising it, and since the propriety of reaching the merits of a dispute is an important consideration in deciding whether or not to grant certiorari, the State s omission of any Teague defense at the petition stage is significant. Although we undoubtedly have the discretion to reach the State s Teague argument, we will not do so in these circumstances.137 In Jackson, because the State did not raise the issue of retroactivity, the necessary predicate for the Court to resolve the question of retroactivity was waived. Hence, merely because Jackson was before the Court on collateral review is not dispositive on the issue of retroactivity. Before concluding our analysis that Miller is not retroactive under federal law, we must also address whether Michigan law would require its retroactive application. At the outset, we note, A state may accord broader effect to a new rule of criminal procedure than federal retroactivity jurisprudence accords. 138 We also note that the Michigan Supreme Court has stated, Michigan law has regularly declined to apply new rules of criminal procedure to cases in which a defendant s conviction has become final. 139 Our Supreme Court has delineated three factors in determining the retroactivity of a new rule of criminal procedure: (1) the purpose of the new rule[]; (2) the general reliance on the old rule[;] and (3) the effect of retroactive application of the new rule on the administration of justice. 140 Addressing the purpose prong as the first of the three factors to be considered our Supreme Court has stated that, a law may be applied retroactively when it concerns the ascertainment of guilt or innocence; however, a new rule of procedure . . . which does not affect the integrity of the fact-finding process should be given prospective effect. 141 Because Miller is not concerned with the ascertainment of 136 Caspari, 510 US at 389 (citations omitted, emphasis in original). 137 Schiro v Farley, 510 US 222, 229; 114 S Ct 783; 127 L Ed 2d 47 (1994) (citations omitted). 138 People v Maxson, 482 Mich 385, 392; 759 NW2d 817 (2008), citing Danforth, 552 US at 128. 139 Maxson, 482 Mich at 392-393. 140 Id. at 393 (citation omitted). 141 Id., citing People v Sexton, 458 Mich 43, 63; 580 NW2d 404 (1998), quoting People v Young, 410 Mich 363, 367; 301 NW2d 802 (1981). -29- guilt or innocence and does not affect the integrity of the fact-finding process, 142 this first prong militates against retroactivity. Under the second prong, a defendant who relied on the old rule . . . must also have suffered actual harm. . . . 143 While undoubtedly some defendants could receive sentencing relief should we apply Miller retroactively, this would be true of extending any new rule retroactively, yet this is not generally done. 144 In this instance, there is no guarantee that Carp or any defendant would receive relief as Miller is not a categorical ban of life without parole sentences. Our Supreme Court implies that even if this prong is favorable to a defendant, it is not dispositive to the issue of retroactivity. Instead, we must consider, as best as possible, the extent of the detrimental reliance on the old rule, and then balance this against the other Sexton factors, as well as against the fact that each defendant . . . has received all the rights under the law to which he or she was entitled at the time. 145 Our Supreme Court has indicated that the final prong pertaining to the effect of retroactive application on the administration of justice involves a determination of whether [t]he state s strong interest in the finality of the criminal justice process would be undermined. 146 Citing federal decisions, the Maxson Court opined: [F]inality of state convictions is a state interest . . . that States should be free to evaluate, and weigh the importance of, when prisoners held in state custody are seeking a remedy for a violation of federal rights by their lower courts. The principle of finality is essential to the operation of our criminal justice system. The state s interest in finality discourages the advent of new rules from continually forc[ing] the State[ ] to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards[.] 147 Here, while undoubtedly retroactive application could result in a number of juveniles convicted of homicide and sentenced under the mandatory scheme of life in prison without parole to some relief if resentenced there exists a commensurate concern regarding the impact of these potential appeals on our limited judicial resources. Consistent with our Supreme Court s decision in Maxson, it is our judgment that those resources would be better preserved for defendants currently charged [or pending on direct review] some of whom may be . . . entitled to relief. 148 142 Maxson, 482 Mich at 393. 143 Id. at 396 (emphasis in original). 144 Id. at 397. 145 Id. 146 Id. at 397-398. 147 Id. at 398 (citations omitted). 148 Id. at 398-399. -30- Particularly when viewed in conjunction with our determination under federal law, we find that Miller is not subject to retroactive application to cases on collateral review. Finally, while lacking precedential value, we note that Florida appellate courts have recently reached the same conclusion regarding the retroactive application of Miller to cases on collateral review.149 While the analysis of the Florida courts is of limited value as relying almost exclusively on state law, we find the reasoning, analysis and its ultimate conclusions to be instructive and consistent with that of this Court.150 VI. Application A. Introduction We recognize that the ultimate authority to determine penalties for criminal offenses is constitutionally vested in the legislature,151 while the authority to impose sentences and to administer statutory law governing sentencing that the Legislature enacts lies with the judiciary.152 We also readily acknowledge that a court s constitutional obligation is to interpret, not rewrite, the law and that [a]ny responsibility to rewrite the statutes lies with the Legislature. 153 While cognizant of our role we also recognize our duty to the trial courts that will face sentencing issues on pending cases and which can be anticipated on remand. We must, we believe, provide guidance to these trial courts to assure a consistency of approach until the Legislature can respond by reworking the sentencing scheme for juveniles in Michigan to accord with Miller. We urge the Legislature to take up their task quickly in this matter. But we find it unacceptable in the interim to simply remand cases to the trial courts for resentencing. Without such guidance, the trial courts will be caught between the Miller Court s ruling that a mandatory life sentence without parole for a juvenile convicted of homicide is constitutionally defective while simultaneously required by the current statutory scheme in Michigan to impose such a sentence. We therefore provide the following to assure individualized sentencing for juveniles convicted of homicide while simultaneously affording a standardized methodology for the lower courts to implement pending the action of our Legislature. In doing so this Court seeks to minimize its intrusion and to leave the smallest footprint possible upon any legislative function. 149 Geter v Florida, ___ So 3d ___ (Fla App, 3 Dist, 2012) (WL 4448860); see also Gonzalez v Florida, ___ So 3d (Fla App, 1 Dist, 2012) (WL 5233454). 150 People v Conrad, 148 Mich App 433, 439; 385 NW2d 277 (1986). 151 Const 1963, art 4, § 45. 152 See MCL 769.1(1). 153 Salter v Patton, 261 Mich App 559, 566; 682 NW2d 537 (2004) (citations and footnote omitted). -31- B. Miller s Parameters Because we are bound by the decisions of the United States Supreme Court construing federal law, 154 it is important to delineate the exact parameters of Miller in order to determine the means to best carry out the Miller decision while commensurately obtaining the least disruption to our sentencing system for juveniles. Consistent with Graham, the Miller Court s ruling requires sentencing authorities to consider the characteristics of a [juvenile] defendant and the details of his offense before sentencing him. . . . 155 Specifically, youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole. 156 The brunt of the Miller Court s criticism of mandatory sentencing schemes of life imprisonment without parole for juveniles is that such schemes prevent[] those meting out punishment from considering a juvenile s lessened culpability and greater capacity for change, and runs afoul of our cases requirement of individualized sentencing for defendants facing the most serious penalties. 157 To achieve the goal of individualized sentencing for juveniles, the Miller Court repeatedly emphasized the necessity for sentencing authorities [to] consider the characteristics of a defendant and the details of his offense before sentencing. . . . 158 Having found that [a]n offender s age . . . is relevant to the Eighth Amendment, the Miller Court explicitly determined that criminal procedure laws that fail to take defendants youthfulness into account at all would be flawed. 159 This does not, however, imply that a sentencing court has unfettered discretion in sentencing a juvenile. Rather, the focus is on the discretion of the sentencer to determine whether to impose the harshest penalty of life without possibility of parole on a juvenile convicted of a homicide offense. Specifically, the Miller Court stated: 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 154 Jaqua v Canadian Nat R R, Inc, 274 Mich App 540, 546; 734 NW2d 228 (2007), citing Chesapeake & O R Co v Martin, 283 US 209, 220-221; 51 S Ct 453; 75 L Ed 983 (1983). 155 Miller, 132 S Ct at 2458. 156 Id. 157 Id. at 2460, quoting Graham, 130 S Ct at 2026-2027, 2029-2030. 158 Miller, 132 S Ct at 2463-2464. 159 Id. at 2466, quoting Graham, 130 S Ct at 2031. -32- principle: that imposition of a State s most severe penalties on juvenile offenders cannot proceed as though they were not children. And Graham makes plain these mandatory schemes defects in another way: by likening life-without-parole sentences imposed on juveniles to the death penalty itself. Life-without-parole terms, the Court wrote, share some characteristics with death sentences that are shared by no other sentences. Imprisoning an offender until he dies alters the remainder of his life by a forfeiture that is irrevocable. And this lengthiest possible incarceration is an especially harsh punishment for a juvenile, because he will almost inevitably serve more years and a greater percentage of his life in prison than an adult offender. The penalty when imposed on a teenager, as compared with an older person, is therefore the same . . . in name only. All of that suggested a distinctive set of legal rules: In part because we viewed this ultimate penalty for juveniles as akin to the death penalty, we treated it similarly to that most severe punishment. We imposed a categorical ban on the sentence s use, in a way unprecedented for a term of imprisonment. And the bar we adopted mirrored a proscription first established in the death penalty context that the punishment cannot be imposed for any nonhomicide crimes against individuals. That correspondence Graham s [t]reat[ment] [of] juvenile life sentences as analogous to capital punishment, makes relevant here a second line of our precedents, demanding individualized sentencing when imposing the death penalty. [W]e [have] held that a statute mandating a death sentence for first-degree murder violated the Eighth Amendment. We thought the mandatory scheme flawed because it gave no significance to the character and record of the individual offender or the circumstances of the offense, and exclud[ed] from consideration . . . the possibility of compassionate or mitigating factors. Subsequent decisions have elaborated on the requirement that capital defendants have an opportunity to advance, and the judge or jury a chance to assess, any mitigating factors, so that the death penalty is reserved only for the most culpable defendants committing the most serious offenses.160 This language indicates that the Miller Court is directing that sentencing courts not impose the harshest term of imprisonment, life without possibility of parole, on juveniles without having first determined if such a sentence is appropriate based on the offender s youth and the circumstances applicable to the particular case to assure an individualized and proportionate sentence. Contrary to the arguments of the amici and Carp in response to this Court s request to address procedural or application issues in juvenile sentencing in their briefs, the Miller Court 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 160 Id. at 2466-2467. -33- murder. Instead, a sentencing court must, considering factors of youth, have the discretion to determine whether a juvenile convicted of homicide will have imposed on him or her the harshest penalty of life in prison without parole or be entitled to life in prison with the possibility of parole. We base this conclusion on several factors. First, the Miller Court in its reliance on Roper and Graham emphasized: [O]ur individualized sentencing cases alike teach that in imposing a State s harshest penalties, a sentencer misses too much if he treats every child as an adult. To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features among them, immaturity, impetuosity, and failure to appreciate risks and consequences. *** We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not consider Jackson s and Miller s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. Although we do not foreclose a sentencer s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.161 Second, this is consistent with the Court s explication of its holding in Graham, where it distinguished between defendants who do not kill, intend to kill, or foresee that life will be taken as being less deserving of the most serious forms of punishment from those juveniles that are murderers. 162 It would, therefore, be inconsistent to sentence juveniles who commit murder to a sentence that is not proportional to the severity of the crime. In addition, the Graham Court clearly stated: 161 Id. at 2468, 2469 (citations and footnotes omitted, emphasis added). 162 Graham, 130 S Ct at 2027. -34- A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants . . . some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.163 Finally, first-degree murder is consistently acknowledged as the most serious of offenses. 164 Concomitant with the severity of the offense is the proportionality of the punishment. The Eighth Amendment s history and development of its decisional law firmly support the conclusion that length of imprisonment can be sufficiently disproportionate to the underlying crime to be cruel and unusual punishment. 165 [I]t is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense. 166 But proportionality is a two-edge sword. A sentence may not be so severe that it constitutes cruel and unusual punishment given the circumstances or severity of the offense. On the other hand, a sentence may not be so light that the punishment fails to fit the serious nature of the crime: There is no judicial function which makes larger drafts upon the fairness, common sense, sanity, and good judgment of the judge than that of fixing penalties for criminal offenses, nor one which more vitally affects the stability of free institutions. Excessive penalties are tyrannical in the court, and abhorrent to the public; on the other hand, penalties unduly mild seriously embarrass law enforcement and encourage infractions of the criminal laws.167 163 Id. at 2030 (emphasis added). 164 Lambert v Blodgett, 393 F3d 943, 956 (CA 9, 2004); see also Lizama v United States Parole Comm n, 245 F3d 503, 505 (CA 5, 2001); Baggett v Keller, 796 F Supp 2d 718, 730 (ED NC, 2011). 165 Carmona v Ward, 576 F2d 405, 420 (CA NY, 1978). 166 Atkins v Virginia, 536 US 304, 311; 122 S Ct 2242; 153 L Ed 2d 335 (2002), quoting Weems v United States, 217 US 349; 30 S Ct 544; 54 L Ed 793 (1910). 167 Hawkins v United States, 14 F2d 596, 598 (CA 7, 1926). -35- Consequently, under Miller the provision of discretion in sentencing to achieve an individualized result does not equate to unlimited or unfettered authority to impose any type of penalty. While individualized with regard to considerations of youth, any sentence imposed on a juvenile convicted of homicide must also recognize the severity of the offense committed, resulting in a sentence that accordingly reflects the severity of the offense. We specifically reject the contention that an appropriate alternative would be to sentence a convicted juvenile homicide offender to a term of years consistent with second-degree murder as the next step in penalty gradation from first-degree murder. While not absolute, in many cases involving first-degree murder a sentencing court also instructs the finder of fact on seconddegree murder as a necessarily included lesser offense.168 In these instances, when a jury determines that the juvenile is guilty of first-degree murder it has rejected the possibility that he or she is guilty of the lesser offense. When a jury has had the option and specifically rejected attribution of guilt to a lower level offense, any failure to recognize and afford weight to the jury s verdict by imposing a penalty inconsistent with the level of offense that the jury determines as the basis for the verdict of guilt would offend the premise of proportionality in seeking to assure that the punishment imposed fits the crime. C. A Perfect Storm: The Michigan Sentencing Scheme for Juveniles Who Commit Homicide There are three Michigan statutes that intersect to create an unconstitutional perfect storm under Miller. Those statutes are: MCL 750.316(1), mandating a life sentence for any person convicted of first-degree murder; MCL 769.1(1)(g), requiring courts to sentence any juvenile convicted of first-degree murder in the same manner as an adult; and MCL 791.234(6)(a), excluding any prisoner serving a life sentence for first-degree murder from eligibility for parole. In our view, however, all of the statutes are not unconstitutional under Miller. Rather, as we explain below, only one of them is: MCL 791.234(6)(a), which provides that a prisoner sentenced to life imprisonment for first-degree murder is not eligible for parole. D. Meeting Miller s Requirements In Michigan To fulfill the strictures of Miller sentencing courts are required to determine, considering the factors of youth and the serious nature of the offense, whether to sentence the juvenile convicted of a homicide offense to life without the possibility of parole or to sentence such a juvenile offender to a life sentence with the potential for parole. To fulfill this mandate and as a consequence of this opinion, we find that the current statutory provision, MCL 791.234(6)(a), which provides that a prisoner sentenced to life imprisonment for first-degree murder is not eligible for parole to be unconstitutional as written and as applied to juvenile offenders convicted of homicide. This statute fails to acknowledge a sentencing court s discretion to determine that a convicted juvenile homicide offender may be eligible for parole. 168 See People v Cornell, 466 Mich 335, 358 n 13; 646 NW2d 127 (2002), overruled in part People v Mendoza, 468 Mich 527; 664 NW2d 685 (2003). -36- Miller also provides direction regarding the factors a sentencing court should consider. While not inclusive, the Miller Court specifically indicates factors to be considered at sentencing to include: (a) the character and record of the individual offender [and] the circumstances of the offense, 169 (b) the chronological age of the minor, 170 (c) the background and mental and emotional development of a youthful defendant, 171 (d) the family and home environment, 172 (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], 173 (f) whether the juvenile might have been charged and convicted of a lesser offense if not for incompetencies associated with youth, 174 and (g) the potential for rehabilitation.175 It is important to recognize that the trial court must consider these factors at the time of sentencing in determining the eligibility for parole. Discretion by the trial court at the outset of proceedings in determining whether to try a juvenile as an adult is not sufficient to meet the mandate.176 The Miller Court indicated the importance of the timing of the considerations of youth stating that the question at transfer hearings may differ dramatically from the issue at a post-trial sentencing and noting: Discretionary sentencing in adult court would provide different options: There, a judge or jury could choose, rather than a life-without-parole sentence, a lifetime prison term with the possibility of parole or a lengthy terms of years.177 Specifically, the discretion available to a judge at the transfer stage cannot substitute for discretion at post-trial sentencing in adult court and so cannot satisfy the Eighth Amendment. 178 While Miller does not guarantee a convicted juvenile homicide offender parole, Miller and its predecessors do mandate that a meaningful review and consideration must be afforded by the sentencing court, which has at least the potential to be realized. Carp and the amici raise legitimate concerns whether the court s discretion in sentencing a juvenile homicide offender to life with the possibility of parole will actually result in a meaningful review by the Parole Board 169 Miller, 132 S Ct at 2467 (quotation marks omitted). 170 Id. 171 Id. 172 Id. at 2468. 173 Id. 174 Id. 175 Id. 176 Id. at 2474. 177 Id. at 2474-2475 (emphasis in original). 178 Id. at 2475. -37- premised on its life means life policy.179 We acknowledge that the release of a prisoner on parole is discretionary by the Parole Board180, and, based on that discretion a prisoner does not possess a protected liberty interest in being paroled before the expiration of his or her sentence.181 Since 1982, legislative changes have occurred impacting not only the structure and composition of the Parole Board, but also the procedure for paroling inmates sentenced to parolable life. . . . 182 Historically: Until 1982, inmates sentenced to parolable life could expect an initial interview with the Board after having served seven years, with subsequent interviews at no greater than 36-month intervals following the initial interview[.] In 1982, the Michigan Legislature amended the law to require the initial interview at the four-year mark with subsequent interviews biennially thereafter[.] The Legislature changed the law again a decade later such that, as of 1992, a Board member is not statutorily required to interview an inmate sentenced to parolable life before the inmate comes within the Board s jurisdiction. Rather, the initial interview is required only after the inmate has served ten years. Moreover, as of 1992, the inmate could expect to be reinterviewed as infrequently as every five years . . . not every two or three years as had been the previous practice. In 1999, the Legislature eliminated the statutory reinterview requirement altogether. As a result, as of 1999, a Board member need only interview an inmate sentenced to parolable life after the inmate has served ten years. Interviews take place thereafter as determined by the Board. Rather than requiring regular reinterview of an inmate, the statute now requires the Board to review the inmate s paper file at five-year intervals. . . . [H]owever, . . . in practice, the Board exercises its discretion to reinterview an inmate every ten years following the initial ten-year interview. Legislative changes in 1999 also curtailed an inmate s right to judicial review of the denial of parole. The Legislature had made an inmate s right to appeal explicit in 1982 by providing that the action of the parole board in granting or denying a parole shall be appealable to the circuit court. Before 1982, the law had provided only that the Board s action of releasing an inmate was not . . . reviewable if in compliance with law. As a result of the 1999 179 See People v Scott, 480 Mich 1019; 743 NW2d 62 (2008) (Marilyn J. Kelly, J., dissenting). 180 In Re Parole of Johnson, 235 Mich App 21, 24-25; 596 NW2d 202 (1999). 181 Crump v Lafler, 657 F3d 393, 404 (CA 6, 2011) ( There is no legitimate claim of entitlement to parole [in Michigan], and thus no liberty interest in parole. (Internal quotations and citation omitted). 182 Foster v Booker, 595 F3d 353, 357 (2010). -38- amendments, only the prosecutor or the victim of an inmate s crime has a statutory right to appeal the Board s decision to grant parole. [I]n the 1990s the Board stopped providing written reasons to explain its lack of interest in moving an inmate forward to a public hearing. This change appears to have been within the statutory discretion of the Board. Since 1982, Michigan law has required that [w]hen the parole board makes a final determination not to release a prisoner, the prisoner shall be provided with a written explanation of the reason for denial. The Michigan Court of Appeals in 2001, by interpreting final determination to mean determinations that had progressed through all the steps in the parole eligibility process, refused to require a written explanation at the no interest stage.183 Concerns regarding the Parole Board s exercise of discretion may also necessitate the involvement of our Legislature to study the current Parole Board procedure and ascertain whether it will require adaptation following Miller. We recognize that the determination of parole eligibility is a separate phase of the criminal justice process. 184 But the Parole Board cannot effectively ignore the determination of the sentencing court and must respect its decision following conviction of a juvenile homicide offender to life with the possibility of parole. In an earlier decision the United States Supreme Court, explained that where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender s release, along with a complex of other factors, will inform parole decisions.185 Along with the sentencing court the Parole Board must truly exercise the discretion granted to it and not abdicate its responsibility by the automatic imposition, in the case of juvenile homicide offenders, of its life means life policy. Miller necessitates the sentencing court s exercise of discretion in determining whether to sentence a juvenile homicide offender to life in prison with the possibility of parole. And logic dictates that to effectuate the sentence that the sentencing court imposes, the Parole Board must respect the sentencing court s decision by also providing a meaningful determination and review when parole eligibility arises. We must address a further important discrepancy between Miller and our current sentencing scheme for juveniles in Michigan. That discrepancy involves the very definition of who qualifies as a juvenile. Miller defines a juvenile as comprising those under the age of 18 at 183 Id. at 357-358 (citations omitted). 184 See Augustine v Brewer, 821 F2d 365, 369 n 2 (CA 7, 1987). 185 Garner v Jones, 529 US 244, 253; 120 S Ct 1362; 146 L Ed 2d 236 (2000). -39- the time of their crimes. . . . 186 The same definition is evident in Graham s acknowledgement that [t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood, those who were below that age when the offense was committed may not be sentenced to life without parole for a non-homicide crime. 187 But Michigan defines a juvenile as below the age of 17. Specifically, MCR 6.903(E) defines a juvenile as encompassing a person 14 years of age or older, who is subject to the jurisdiction of the court for having allegedly committed a specific juvenile violation on or after the person s 14th birthday and before the person s 17th birthday. Similarly, MCL 600.606(1) defines a juvenile as 14 years of age or older and less than 17 years of age, while MCL 764.27 references a child less than 17 years of age. . . . Consequently, to adhere to Miller, sentencing of a juvenile requires that those individuals between 17 and 18 years of age also be subject to the strictures as outlined herein. VI. Conclusion The United States Supreme Court has, through a series of recent decisions culminating in Miller, indicated that juveniles are subject to different treatment than adults for purposes of sentencing under the Eighth Amendment. Specifically, we hold that in Michigan a sentencing court must consider, at the time of sentencing, characteristics associated with youth as identified in Miller when determining whether to sentence a juvenile convicted of a homicide offense to life in prison with or without the eligibility for parole. While Miller does not serve to foreclose a sentencer s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. 188 While Miller is applicable to those cases currently pending or on direct review, we find that in accordance with Teague and Michigan law that it (1) is not to be applied retroactively to cases on collateral review, such as Carp s, because the decision is procedural and not substantive in nature and (2) does not comprise a watershed ruling. We urge our Legislature to address with all possible expediency the issues encompassed by and resulting from Miller and that necessitate the revision of our current statutory sentencing scheme for juveniles. In the interim, as guidance for our trial courts for those cases currently in process or on remand following direct appellate review, we find that MCL 791.234(6)(a) is unconstitutional as currently written and applied to juvenile homicide offenders. When sentencing a juvenile, defined now as an individual below 18 years of age, for a homicide offense, the sentencing court must, at the time of sentencing, evaluate and review those characteristics of youth and the circumstances of the offense as delineated in Miller and this opinion in determining whether following the imposition of a life sentence the juvenile is to be deemed eligible or not eligible for 186 Miller, 132 S Ct at 2460. 187 Graham, 130 S Ct at 2030, quoting Roper, 543 US at 574 (quotation marks omitted). 188 Miller, 132 S Ct at 2469. -40- parole. We further hold that the Parole Board must respect the sentencing court s decision by also providing a meaningful determination and review when parole eligibility arises. Affirmed. /s/ Michael J. Talbot /s/ E. Thomas Fitzgerald /s/ William C. Whitbeck -41-
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