A People of Michigan v. Victor Manuel Garay ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 2, 2023
Plaintiff-Appellee,
v No. 329091
Kalamazoo Circuit Court
VICTOR MANUEL GARAY, LC No. 2014-000785-FJ
Defendant-Appellant.
AFTER REMAND
Before: SHAPIRO, P.J., and BORRELLO and GADOLA, JJ.
PER CURIAM.
Defendant, age 15 at the time of the crime, was convicted of the first-degree murder of
Michael Day, age 13, MCL 750.316.1 On appeal, we affirmed his conviction but remanded for
resentencing because, in our view, the trial court focused on the Snow2 factors rather than the
factors listed in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012).3 The
prosecution and defense each sought leave to appeal to the Supreme Court. That Court, in lieu of
granting leave, issued an order vacating the portion of our opinion criticizing the consideration of
the Snow factors when the defendant is a juvenile offender. It also remanded the case to this Court
to determine whether the trial court properly considered the Miller factors.
On October 28, 2021, we issued an opinion on remand vacating defendant’s sentence and
remanding to the trial court with direction to resentence defendant under further consideration of
1
He was also convicted of conspiracy to commit murder, MCL 750.157a; MCL 750.316; and two
counts of possession of a firearm during the commission of a felony, MCL 750.227b.
2
People v Snow, 386 Mich 586; 194 NW2d 314 (1972).
3
People v Garay, 320 Mich App 29; 903 NW2d 883 (2017), vacated in part and overruled in part
506 Mich 936 (2020).
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Miller while retaining jurisdiction.4 On remand, the trial court, per the parties’ stipulation, ordered
that defendant undergo a psychological evaluation and that report was provided to the court for its
consideration at resentencing. Defendant was resentenced on November 10, 2022, to a term of 40
to 60 years’ imprisonment on the charges of first-degree murder and conspiracy to commit murder
and to two-years imprisonment for the felony-firearm charges.
The resentencing transcript was filed with this Court on December 22, 2022, and neither
party has moved to file supplemental briefs.
We have reviewed the resentencing transcript and, finding no abuse of discretion,5 affirm
the sentences imposed. The trial court noted that in light of People v Taylor, ___ Mich ___; ___
NW2d ___ (2022) (Docket No. 154994), as well as Miller and the remand order, it would “find
that a term of years is the appropriate sentence, unless a prosecutor has information that would
establish that the defendant is that rare case that requires life in prison without parole.” The court
further noted that it had reviewed the relevant law as well as the record and the presentence
investigation report (PSIR) and updates regarding defendant’s behavior during his incarceration.
Neither party requested changes or corrections to the PSIR. The trial court heard extensive
arguments specifically directed at the Miller factors. In resentencing defendant, the court noted
that “when there are youth involved, juveniles, the court has to step away from that one size fits
all sentence, and actually analyze whether in fact it is an appropriate sentence as it relates to a
particular defendant.” The court also observed that in the seven years since defendant had been
sentenced, there is “an indication of some progress that [he] has made in terms of having a realistic
assessment of his life” and that the issue was no longer whether defendant should be sentenced to
life without parole, but whether “he can be restored to the community.” The court noted that
defendant is “still an unformed or not fully formed adult, and some of his thinking . . . definitely
testifies to that lack of completeness.” It specifically noted that although defendant’s crime was
in part due to peer group pressure, he still had not yet developed the skills to make proper decisions
and “there is more work to be done with regard to establishing a personality and mechanism by
which he can resist improper peer group pressure.” The court addressed another Miller factor by
noting that defendant made several decisions that may have increased the likelihood of being
convicted. It also noted that while defendant has potential for rehabilitation, he had a long way to
go in order to return to society. The court also considered the circumstances of the crime.
Having reviewed the resentencing transcript and PSIR, we conclude that the trial court
adequately considered the Miller factors when resentencing defendant. Accordingly, we affirm
his sentence.
/s/ Douglas B. Shapiro
/s/ Stephen L. Borrello
/s/ Michael F. Gadola
4
People v Garay, unpublished per curiam opinion of the Court of Appeals, issued October 28,
2021 (Docket No. 329091).
5
We review sentencing decisions for an abuse of discretion. See People v Skinner, 502 Mich 89,
131; 917 NW2d 292 (2018).
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