People of Michigan v. Walter Miller ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 25, 2019
Plaintiff-Appellee,
v No. 341425
Wayne Circuit Court
WALTER MILLER, LC No. 86-008310-05-FC
Defendant-Appellant.
Before: CAMERON, P.J., and MARKEY and BORRELLO, JJ.
PER CURIAM.
This appeal stems from defendant’s resentencing pursuant to Miller v Alabama, 567 U.S.
460; 132 S. Ct. 2455; 183 L. Ed. 2d 407 (2012), and Montgomery v Louisiana, ___ US ___; 136 S
Ct 718; 193 L. Ed. 2d 599 (2016). For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
In 1987, defendant was convicted of first-degree murder, MCL 750.316; assault with
intent to commit murder (AWIM), MCL 750.83; kidnapping, MCL 750.349; and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant’s
convictions were based on his role in a shooting that occurred in 1986, when defendant was 17
years old. Following his jury trial convictions, the trial court sentenced defendant to life
imprisonment without parole for his first-degree murder conviction, life imprisonment for his
AWIM conviction, 30 to 60 years’ imprisonment for his kidnapping conviction, and two years’
imprisonment for his felony-firearm conviction, with the felony-firearm to be served
consecutively to and preceding the sentences for his other three convictions, which were to be
served concurrently.
In 2017, defendant was resentenced to 30 to 60 years’ imprisonment for his first-degree
murder conviction after the United States Supreme Court held that “mandatory life without
parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments,’ ” Miller, 567 U.S. at 465, and that this rule
announced in Miller was to be applied retroactively to cases on collateral review, Montgomery,
___ US at ___; 136 S. Ct. at 732.
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At the March 30, 2017 resentencing hearing, the trial court specifically stated that it was
only resentencing defendant on his first-degree murder conviction. The trial court entered an
amended judgment of sentence on the same day that only referenced defendant’s 30 to 60 year
sentence for the first-degree murder conviction, with credit for 10,424 days served. On April 7,
2017, the trial entered another amended judgment of sentence that included defendant’s
previously imposed sentences for his other three convictions in addition to his new sentence on
his first-degree murder conviction. Defendant filed a claim of appeal in this Court from the
March 30, 2017 judgment of sentence pertaining to his resentencing on the murder conviction.
However, defendant subsequently moved the trial court for resentencing and a Ginther1 hearing,
arguing (1) that his sentence for AWIM was constitutionally invalid as it was a violation of
defendant’s Eighth Amendment rights,2 because it was harsher than his murder sentence and did
not provide him with a meaningful opportunity for release; and (2) that defense counsel provided
ineffective assistance of counsel by failing to challenge this sentence, failing to object to the
denial of good time credits when defendant was resentenced on his murder conviction, and for
not objecting to the trial court’s failure to update the presentence investigation report (PSIR) to
provide a guidelines score for defendant’s AWIM conviction. On March 7, 2018, the trial court
entered an order denying defendant’s motion, reasoning that (1) the “original sentence is valid
and not subject to re-sentence unless the Court of Appeals, Supreme Court or Legislature decide
otherwise” and (2) that “ ‘Good time credit’ is a function of the Michigan Department of
Corrections; not the trial court.”3 Defendant now indicates in his appellate brief filed through
counsel that his appeal is from this March 7, 2018 order denying his motion for resentencing, and
defendant requests that this Court remand this matter to the trial court for resentencing.
II. JURISDICTION OVER THIS APPEAL
As an initial matter, we must address the prosecution’s challenge to our jurisdiction over
this appeal. The prosecution argues that defendant’s appeal is solely devoted to challenging his
AWIM sentence of life with the possibility of parole and that such a challenge is procedurally
barred because it could only have been made through a motion for relief from judgment under
MCR 6.502, which was a motion that defendant was prohibited by MCR 6.502(G)(1) from
making since he had previously availed himself of his one permissible opportunity for bringing a
motion for relief from judgment. The prosecution further argues that defendant’s motion
challenging his AWIM sentence therefore could only be construed, at best, as a successive
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
2
See Const 1963, art 1, § 16.
3
We note that we have been provided with a seemingly incomplete lower court file, which does
not contain all of these motions and orders. However, defendant has provided this Court with
copies of the missing items that are pertinent to the various arguments he raises on appeal, both
through counsel and in his Standard 4 brief. For purposes of addressing defendant’s appellate
issues, we operate under the assumption that these motions and orders are, in fact, part of the
complete lower court record.
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motion for relief from judgment and that MCR 6.502(G)(1) does not allow a defendant to
“appeal the denial or rejection of a successive motion.”
“Whether this Court has jurisdiction to hear an appeal is always within the scope of this
Court’s review.” Chen v Wayne State Univ, 284 Mich. App. 172, 191; 771 NW2d 820 (2009); see
also MCR 7.216(A)(10). “The jurisdiction of the Court of Appeals is governed by statute and
court rule.” Chen, 284 Mich. App. at 191. We review de novo, as a question of law, the existence
of our jurisdiction. Id. Issues involving the interpretation of statutes and court rules are also
questions of law that are reviewed de novo. People v Cole, 491 Mich. 325, 330; 817 NW2d 497
(2012).
In this case, the prosecution’s argument, although couched in terms of “jurisdiction,” is,
in reality, an argument regarding the proper scope of an appeal from a Miller resentencing, as
well as a general objection to the somewhat confusing procedural posture of the instant appeal.
A review of the pertinent procedural facts illustrates the issue presented by the prosecution’s
argument.
On March 30, 2017, defendant was resentenced on his life-without-parole first-degree
murder sentence to a term of 30 to 60 years’ imprisonment pursuant to the United States
Supreme Court’s decisions in Miller and Montgomery, as well as Michigan’s statutory provisions
containing governing rules for carrying out Miller resentencing proceedings—those being MCL
769.25 and MCL 769.25a. Defendant filed a claim of appeal in this Court from his March 30,
2017 resentencing. This Court has jurisdiction over appeals from “a sentence imposed following
the granting of a motion for resentencing,” and such appeals are by right. MCR 7.202(6)(b)(iii);
MCR 7.203(A)(1).
Defendant subsequently moved in the trial court for resentencing pursuant to MCR
7.208(B)(1), which provides that “[n]o later than 56 days after the commencement of the time for
filing the defendant-appellant’s brief as provided by MCR 7.212(A)(1)(a)(iii), the defendant may
file in the trial court a motion for a new trial, for judgment of acquittal, to withdraw a plea, or to
correct an invalid sentence.” (Emphasis added.) Under MCR 6.429(A), the trial court “may
correct an invalid sentence . . . on motion by either party. But the court may not modify a valid
sentence after it has been imposed except as provided by law.” “If a claim of appeal has been
filed, a motion to correct an invalid sentence may . . . be filed in accordance with the procedure
set forth in MCR 7.208(B) . . .” MCR 6.429(B)(2). “[T]he trial court lacks authority to set aside
a valid sentence once the defendant begins serving it.” People v Wybrecht, 222 Mich. App. 160,
166; 564 NW2d 903 (1997). “[A]bsent a tangible legal or procedural error that makes a
sentence invalid, the trial court cannot alter a sentence that a defendant has begun to serve.” Id.
at 167 (emphasis added). The trial court denied defendant’s motion for resentencing. A
defendant may continue with his or her appeal of right following a trial court’s denial of the
motion for resentencing. See MCR 7.208(B)(6). Thus, we have jurisdiction over defendant’s
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appeal in which he argues that the trial court erred by denying his motion for another
resentencing.4
III. DEFENDANT’S APPELLATE ISSUES
We now turn to the substantive merits of defendant’s appellate arguments challenging the
validity of his sentence, which raise issues related to the constitutionality of defendant’s
sentence, ineffective assistance of counsel, and the interpretation and application of statutes and
court rules.
“In Michigan, a trial court’s authority to resentence a defendant is limited.” People v
Whalen, 412 Mich. 166, 169; 312 NW2d 638 (1981). A trial court is “without authority to set
aside a valid sentence and impose a new one, because to do so would infringe upon the exclusive
4
We note that like the prosecution, we understand the central argument advanced by defendant,
both in his motion for resentencing and on appeal, to be that the rational of Miller applies with
equal force to his life-with-parole sentence for AWIM such that he should also have been
resentenced on that conviction in addition to his first-degree murder conviction. For the reasons
to be explained later in this opinion, defendant’s AWIM sentence did not clearly fall within the
purview of the holding in Miller. Thus, defendant’s challenge to this sentence appears to be
more of a collateral attack on his sentence that would have been more properly raised through a
motion for relief from judgment under MCR 6.502. See MCR 6.429(B)(4) (“If the defendant is
no longer entitled to appeal by right or by leave, the defendant may seek relief pursuant to the
procedure set forth in subchapter 6.500.”). The record indicates that defendant has previously
made his one motion for relief from judgment that is permitted by MCR 6.502(G)(1) and that
this motion was denied. Accordingly, had defendant raised his present challenges to his AWIM
sentence by a motion for relief from judgment, it would have been a successive motion, which is
generally prohibited by MCR 6.502(G)(1).
However, MCR 6.502(G)(2) permits a defendant to “file a second or subsequent motion
based on a retroactive change in law that occurred after the first motion for relief from
judgment.” In this case, defendant essentially argues that the retroactive effect of Miller also
applies to life-with-parole sentences. Had defendant raised such an argument through a proper
successive motion for relief from judgment under MCR 6.502(G)(2), that subrule further
provides that the motion would have been referred “to the judge to whom the case is assigned for
a determination whether the motion is within one of the exceptions,” which in this case would be
the exception involving a retroactive change in law. Appeals from motions for relief from
judgment are by leave, MCR 6.509(A), and appellate courts will review a trial court’s decision
on a successive motion for relief from judgment that is made under MCR 6.502(G)(2) and based
on a claimed retroactive change in law that occurred after the first motion for relief from
judgment, see People v Barnes, 502 Mich. 265, 267-268, 274-275; 917 NW2d 577 (2018).
Therefore, we would still have been able to exercise our discretion to review defendant’s
arguments even if they had been made through a motion for relief from judgment. Had this
appeal resulted from that procedure instead, we would have reached the same result that we
reach in this opinion.
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power of the governor under the Constitution to commute sentence.” Id. (quotation marks and
citation omitted). Appellate review of whether a trial court exceeded its authority to set aside a
sentence, and the related question of a sentence’s validity, is de novo. See id. at 169-171; People
v Miles, 454 Mich. 90, 96-98; 559 NW2d 299 (1997). We review constitutional issues de novo.
People v Williams, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 339701); slip op
at 2. We also review de novo issues involving the interpretation of statutes and court rules.
Cole, 491 Mich. at 330. “Whether a person has been denied effective assistance of counsel is a
mixed question of fact and constitutional law.” People v Jordan, 275 Mich. App. 659, 667; 739
NW2d 706 (2007) (quotation marks and citation omitted). “Findings on questions of fact are
reviewed for clear error, while rulings on questions of constitutional law are reviewed de novo.”
Id. However, because no Ginther hearing was held in this case, our review is “limited to errors
apparent on the record.” Id.
As previously stated, defendant in this case was required to demonstrate a “tangible legal
or procedural error” that made his sentence invalid in order to be entitled to any relief on his
motion for resentencing. Wybrecht, 222 Mich. App. at 167. In his motion, defendant raised
several challenges that depended on his fundamental contention that his AWIM sentence of life
with the possibility of parole was a “de facto life sentence” that was constitutionally invalid.
Defendant argued that defense counsel was ineffective for failing to challenge this sentence and
for not objecting to the trial court’s failure to update the PSIR to provide a guidelines score for
defendant’s AWIM conviction. Additionally, defendant made a cursory argument that defense
counsel provided ineffective assistance of counsel by failing to object to the trial court’s “denial”
of good time credits at the resentencing. This last argument was the only argument that
defendant raised that related to his resentencing on his murder conviction. The trial court denied
defendant’s motion for resentencing on the grounds that the original sentence was valid and that
good time credit was determined by the Michigan Department of Corrections rather than the trial
court. Defendant resurrects these arguments on appeal, both through counsel and in his Standard
4 brief. Defendant also raises additional arguments in his Standard 4 brief. We will address all
of these arguments in turn.
First, defendant did not demonstrate any legal or procedural error with his Miller
resentencing based on the fact that he was not resentenced on his AWIM sentence of life with the
possibility of parole.
In Miller, 567 U.S. at 465, the United States Supreme Court held that “mandatory life
without parole” sentences for individuals who were under the age of 18 when they committed
their crimes are unconstitutional violations of the Eighth Amendment. (Emphasis added.) The
Miller Court explained that its holding was concerned with the mandatory imposition of this
particular “harshest prison sentence” on juveniles without any consideration of “how children are
different.” Id. at 479-480. The Court also clarified that a “State is not required to guarantee
eventual freedom, but must provide some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Id. at 479 (quotation marks and citation omitted).
Further, in Montgomery, ___ US at ___; 136 S. Ct. at 736, the United States Supreme Court
explicitly condoned life-with-the-possibility-of-parole sentences as an option for satisfying the
holding of Miller: “A State may remedy a Miller violation by permitting juvenile homicide
offenders to be considered for parole, rather than by resentencing them. Allowing those
offenders to be considered for parole ensures that juveniles whose crimes reflected only transient
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immaturity—and who have since matured—will not be forced to serve a disproportionate
sentence in violation of the Eighth Amendment.” (Citation omitted.)
Similarly, this Court subsequently held that a sentence of “life with the possibility of
parole satisfied Miller’s mandate.” Williams, ___ Mich App at ___; slip op at 4. We reasoned
that the defendant’s eligibility for parole constituted a “meaningful opportunity to obtain
release,” even though attaining parole status when serving a life sentence involves a somewhat
difficult process. Id.
In addition, MCL 769.25 and MCL 769.25a are the relevant statutory provisions
governing the procedures for resentencing individuals like defendant in the wake of Miller and
Montgomery. MCL 769.25a(2) provides in pertinent part that if the United States Supreme Court
determines that the decision in Miller “applies retroactively to all defendants who were under the
age of 18 at the time of their crimes, and that decision is final for appellate purposes, the
determination of whether a sentence of imprisonment for a violation set forth in section 25(2) of
this chapter shall be imprisonment for life without parole eligibility or a term of years as set
forth in section 25(9) of this chapter shall be made by the sentencing judge or his or her
successor as provided in this section.” (Emphasis added.) MCL 769.25(2), in turn, provides a
list of criminal offenses that includes first-degree murder5 and “[a]ny violation of law involving
the death of another person for which parole eligibility is expressly denied under state law.”6
AWIM does not appear in this list of offenses to which a resentencing based on the retroactive
application of Miller applies pursuant to the statute. MCL 769.25(2); MCL 769.25a(2).
Moreover, AWIM is not brought within these statutory provisions through MCL 769.25(2)(d)
because AWIM is not a “violation of law involving the death of another person” and the AWIM
statute does not expressly deny parole eligibility. See MCL 750.83.
Accordingly, pursuant to Miller, Montgomery, MCL 769.25a(2), and MCL 769.25(2),
defendant was not entitled to be resentenced for his AWIM sentence of life with the possibility
of parole. When a sentence is partially invalid, the sentence may only be corrected to the extent
that the sentence was legally invalid and the valid portion of the sentence remains intact; the
entire judgment of sentence is not wholly set aside. People v Thomas, 447 Mich. 390, 393-394;
523 NW2d 215 (1994); see also MCL 769.24.7 Pursuant to Miller, Montgomery, MCL
5
See MCL 769.25(2)(b) (listing MCL 750.316, which is the first-degree murder statute).
6
See MCL 769.25(2)(d).
7
MCL 769.24 provides as follows:
Whenever, in any criminal case, the defendant shall be adjudged guilty
and a punishment by fine or imprisonment shall be imposed in excess of that
allowed by law, the judgment shall not for that reason alone be judged altogether
void, nor be wholly reversed and annulled by any court of review, but the same
shall be valid and effectual to the extent of the lawful penalty, and shall only be
reversed or annulled on writ of error or otherwise, in respect to the unlawful
excess.
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769.25a(2), and MCL 769.25(2), defendant’s first-degree murder sentence was the only portion
of his sentence that was determined to be unconstitutional under Miller and Montgomery and for
which resentencing was provided for by our Legislature’s response to Miller that was set forth in
MCL 769.25a(2) and MCL 769.25(2). Defendant’s sentence of life with the possibility of parole
for his AWIM conviction was not rendered unconstitutional under Miller because this sentence
provided defendant with a meaningful opportunity for release.8 Miller, 567 U.S. at 465, 479;
Montgomery, ___ US at ___; 136 S. Ct. at 736; Williams, ___ Mich App at ___; slip op at 4.
Therefore, defendant did not show that the trial court made a legal or procedural error in his
Miller resentencing by not also resentencing him on his AWIM sentence of life with the
possibility of parole, and the trial court did not err by determining that defendant’s sentence was
not invalid on this basis.9
Next, defendant did not demonstrate any legal or procedural error with his Miller
resentencing based on his claim that defense counsel was ineffective by failing to object to the
trial court’s “denial” of good time credits.
“To establish a claim of ineffective assistance of counsel, a defendant must demonstrate
that counsel’s performance was deficient in that it fell below an objective standard of
professional reasonableness, and that it is reasonably probable that, but for counsel’s ineffective
assistance, the result of the proceeding would have been different.” Jordan, 275 Mich. App. at
667. “[I]t is the defendant’s burden to prove that counsel did not provide effective assistance.”
People v Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012).
In this case, the trial court did not deny defendant from receiving good time credits, and
the trial court did not mention good time credits at all in resentencing defendant. Good time
8
We note that defendant was paroled on May 29, 2019. See Offender Tracking Information
System, (accessed
June 3, 2019).
9
To the extent defendant seems to imply in his Standard 4 brief that he believes that a life-with-
parole sentence imposed on a juvenile offender may violate the Michigan Constitution, he only
argues about how such a sentence should be treated under Michigan law but does claim that any
binding authority exists for the proposition that such a sentence is actually prohibited in
Michigan such that it would be legally erroneous to impose that sentence. “An appellant may
not merely announce his position and leave it to this Court to discover and rationalize the basis
for his claims, nor may he give only cursory treatment with little or no citation of supporting
authority.” People v Green, 313 Mich. App. 526, 535; 884 NW2d 838 (2015) (quotation marks
and citation omitted). Consequently, he has not shown a tangible legal error that would allow
this Court to conclude that his Miller resentencing was legally invalid such that the trial court
had any authority to revisit or modify his AWIM sentence. He also ignores the opportunity for
release that actually exists for a life-with-the-possibility-of-parole sentence. It is further worth
noting, as is evident from the analytical framework employed in this opinion, that our review at
this juncture concerns whether defendant’s Miller resentencing itself was invalid; this case is
long past the stage of direct review of defendant’s convictions and original sentences.
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credits “are applied to a prisoner’s minimum and/or maximum sentence in order to determine his
or her parole eligibility dates.” People v Wiley, 324 Mich. App. 130, 156; 919 NW2d 802 (2018)
(quotation marks and citation omitted). A prisoner’s eligibility for earning good time credits
applicable to his or her sentence is defined by statute and generally depends on when the
prisoner’s crime was committed and the nature of that crime. See generally MCL 791.233b;
MCL 800.33; Lowe v Dep’t of Corrections, 206 Mich. App. 128, 130-136, 138; 521 NW2d 336
(1994).
However, defendant has not provided any indication regarding how much good time
credit he believes he earned and has therefore failed to establish the factual predicate for his
claim. People v Jackson (On Reconsideration), 313 Mich. App. 409, 432; 884 NW2d 297 (2015)
(“Because the defendant bears the burden of demonstrating both deficient performance and
prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his
claim.”) (quotation marks and citation omitted).
Moreover, it nonetheless appears that defendant was actually not entitled to earn good
time credits at all because he was convicted of first-degree murder, AWIM, kidnapping, and
felony-firearm, (which are crimes listed in MCL 791.233b)10 and he committed these crimes
after January 1, 1983. MCL 800.33(5); MCL 791.233b(d), (n), (q); MCL 750.227b(4); Lowe,
206 Mich. App. at 131-134, 138 (holding that an MDOC policy directive provided a
“constitutional interpretation of MCL 800.33(5)” where the policy directive stated in pertinent
part that prisoners serving sentences for crimes listed in MCL 791.233b and committed after
January 1, 1983, only earned “disciplinary credit” on their minimum and maximum sentences,
rather than good time credit as had previously been statutorily authorized for offenses committed
earlier; the Court also discussed the distinction between good time credits and disciplinary
credits); Michigan Department of Corrections, Good Time Credits, PD 03.01.100(H),
Attachment A (July 10, 2017) (stating, similarly to the earlier MDOC policy directive quoted in
Lowe, that prisoners “sentenced for an offense committed before April 1, 1987” are not eligible
to earn good time credits if the offense was one of the specifically enumerated offenses (which
included felony-firearm, first-degree murder, AWIM, and kidnapping) and “was committed on or
after January 1, 1983”). “Failing to advance a meritless argument or raise a futile objection does
not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich. App. 192, 201;
793 NW2d 120 (2010). Defendant has not established that he received ineffective assistance of
counsel on this ground; he has failed to demonstrate that defense counsel rendered deficient
performance by not raising the issue of good time credits at resentencing, and he has also failed
to establish that he was prejudiced by defense counsel’s performance. Jordan, 275 Mich. App. at
667.
Next, defendant argues that defense counsel was ineffective for not objecting to the
updated PSIR that was prepared for his Miller resentencing on the ground that the updated PSIR
did not contain a guidelines score for his AWIM conviction. Defendant also suggests in his
10
These crimes were listed in MCL 791.233b(d), (n), and (q) in the version of the statute as it
existed when defendant was convicted. See 791.233b, as amended by 1982 PA 458.
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Standard 4 brief that a guidelines score should have been calculated for his kidnapping
conviction. As previously discussed, defendant was only resentenced on his first-degree murder
conviction, which was a fact that the trial court specifically noted on the record at the
resentencing hearing; defendant was not entitled to be resentenced on his AWIM conviction or
any other conviction. Furthermore, defendant committed his crimes in 1986, and the legislative
guidelines do not apply to crimes committed before January 1, 1999. MCL 769.34(1) and (2)11;
People v Reynolds, 240 Mich. App. 250, 253-254; 611 NW2d 316 (2000); see also Williams, ___
Mich App at ___; slip op at 7 (rejecting the same argument now made by defendant under
similar circumstances to those present in this case). Defense counsel was not ineffective for
declining to advance this meritless argument. Ericksen, 288 Mich. App. at 201.
Next, defendant argues in his Standard 4 brief that he was denied due process by the trial
court’s sua sponte amendment of a valid judgment of sentence. As we already noted, the trial
court entered a March 30, 2017 amended judgment of sentence resentencing defendant to a term
of years for his first-degree murder conviction, and it entered an April 7, 2017 amended
judgment of sentence that also included defendant’s original sentences for assault with intent to
commit murder, kidnapping, and felony-firearm. Defendant seems to believe that Miller and the
March 30, 2017 resentencing proceeding operated to vacate all of his sentences. As discussed
above, with the sole exception of his first-degree murder sentence, defendant’s sentences were
not affected by Miller or his resentencing hearing. The trial court clearly understood that this
was the case, as it explicitly stated on the record that it was only resentencing defendant on his
first-degree murder conviction. Clearly, the omission of defendant’s other sentences on the
March 30, 2017, was a clerical error, and the trial court had the authority to sua sponte correct
this clerical mistake. MCR 6.435(A) (“Clerical mistakes in judgments, orders, or other parts of
the record and errors arising from oversight or omission may be corrected by the court at any
time on its own initiative . . .”). Defendant further argues in his Standard 4 brief that defense
counsel was ineffective for failing to object to the April 7, 2017 amended judgment of sentence.
However, since such an objection would have been meritless, defense counsel was not
ineffective for declining to raise it. Ericksen, 288 Mich. App. at 201.
Next, defendant argues in his Standard 4 brief that his AWIM life sentence is a
determinate sentence that violates the provision of the Michigan Constitution authorizing
indeterminate sentences. See Const 1963, art 4, § 45 (“The legislature may provide for
indeterminate sentences as punishment for crime and for the detention and release of persons
imprisoned or detained under such sentences.”). We again emphasize that this is an appeal from
defendant’s Miller resentencing, pursuant to which defendant had no entitlement to be
11
MCL 769.34(2) has been held by our Supreme Court to be unconstitutional “to the extent that
it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by
the defendant or found by the jury beyond a reasonable doubt mandatory.” People v Lockridge,
498 Mich. 358, 364; 870 NW2d 502 (2015). The Lockridge Court remedied this constitutional
violation by making a guidelines minimum sentence range calculated based on judicial fact-
finding advisory. Id. at 365. However, Lockridge did not have any effect on this statutory
provision to the extent that it sets forth the date of applicability for the legislative guidelines.
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resentenced on any of his convictions other than his first-degree murder conviction. As such, the
question is whether his resentencing sentence was somehow rendered invalid when the trial court
did not also resentence defendant on his AWIM conviction. We have concluded that defendant’s
resentencing sentence was not invalid on this ground. This appeal does not provide a vehicle for
defendant launch a collateral attack on his AWIM sentence that was imposed more than 30 years
ago. Thus, this particular argument advanced by defendant necessarily must be rejected.
Moreover, defendant’s argument is without merit nonetheless. Defendant’s life sentence
was specifically authorized by the AWIM statute. MCL 750.83 (“Any person who shall assault
another with intent to commit the crime of murder, shall be guilty of a felony, punishable by
imprisonment in the state prison for life or any number of years.”). In People v Cooper, 236
Mich. App. 643, 661-664; 601 NW2d 409 (1999), this Court held that determinate sentences are
not barred by the Michigan Constitution. The Cooper Court reasoned that although the
constitutional provision in Const 1963, art 4, § 45 “plainly authorizes indeterminate sentencing,
it includes no prohibition against a statute requiring determinate sentencing as a punishment for
crime.” Id. at 661. The Court further explained that because the Legislature was previously
recognized as having the power to provide for determinate sentences, the inclusion of Const
1963, art 4, § 45 in the Michigan Constitution “reflects an expansion of legislative power to
include the power to provide for indeterminate sentences for crimes, not a removal of the
previously existing power to provide for determinate sentences.” Id. at 662. Pursuant to Cooper,
defendant’s life sentence did not violate the Michigan Constitution.
Finally, defendant also argues in his Standard 4 brief that defense counsel was ineffective
for failing to object to his AWIM life sentence under Miller and on the ground that it was a
determinate sentence that violated the Michigan Constitution. As discussed above, neither of
these arguments would have been successful. Defense counsel therefore was not ineffective for
refraining from raising them. Ericksen, 288 Mich. App. at 201.
IV. CONCLUSION
Because defendant failed to show that his Miller resentencing was invalid in any respect,
the trial court did not err by denying his motion for further resentencing. Wybrecht, 222 Mich
App at 167. We therefore affirm the trial court’s decisions related to defendant’s Miller
resentencing and the trial court’s denial of defendant’s motion for additional resentencing.
Affirmed.
/s/ Thomas C. Cameron
/s/ Jane E. Markey
/s/ Stephen L. Borrello
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