20221229_C357974_46_357974.Opn.Ord.Pdf ( 2022 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 29, 2022
Plaintiff-Appellee,
v No. 357974
Wayne Circuit Court
DAVID MCNAIR, LC No. 18-002868-01-FC
Defendant-Appellant.
Before: JANSEN, P.J., and SERVITTO and GADOLA, JJ.
PER CURIAM.
Defendant appeals as of right1 his jury trial convictions of two counts of first-degree felony
murder, MCL 750.316(1)(b), second-degree murder, MCL 750.317, armed robbery, MCL
750.529, carrying a concealed weapon, MCL 750.227, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b.2 The trial court sentenced defendant to
40 to 60 years’ imprisonment for each of his first-degree felony-murder convictions, 30 to 60
years’ imprisonment for his second-degree murder conviction, 20 to 40 years’ imprisonment for
his armed robbery conviction, one to five years’ imprisonment for his carrying a concealed weapon
conviction, and a consecutive two years’ imprisonment for his felony-firearm conviction. We
affirm defendant’s convictions of first-degree felony murder, armed robbery, and felony-firearm,
vacate defendant’s conviction and sentence for second-degree murder, and remand to the trial court
to modify defendant’s judgment of sentence and resentence defendant on his first-degree felony-
murder convictions.
1
Defendant was not timely appointed appellate counsel following trial and sentencing, and when
counsel was appointed, it was discovered that several trial transcripts were missing. The trial
court reissued the judgment of sentence in this case on April 27, 2021, and defendant appeals
that order.
2
Defendant was acquitted of first-degree premeditated murder.
-1-
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the fatal shootings of Deonta Blinco and Javionne Trotter, which
occurred outside a home at 1659 Buena Vista Street in Detroit between 2:30 and 3:00 p.m. on
February 16, 2018. The prosecution presented the testimony of Larry Jackson, who drove Blinco
and Trotter to the crime scene, as well as the testimony of several witnesses who lived on or near
the street to establish the facts concerning the homicides. The testimony of the witnesses was
largely consistent. On the day of the shooting, Jackson drove Blinco and Trotter in his black Jeep
Compass to meet defendant and codefendant Christopher Pritchett3 on Buena Vista Street. Trotter
was Jackson’s cousin, and Blinco was a family friend whom Jackson considered to be like a cousin.
Jackson testified that the purpose of the meeting was for Blinco and Trotter to trade firearms with
defendant and Pritchett. According to Jackson, Blinco and Trotter connected with defendant and
Pritchett over social media and reached an agreement for Pritchett and Trotter to trade a Smith &
Wesson nine-millimeter pistol with an extended magazine possessed by Blinco and Trotter for two
nine-millimeter pistols possessed by defendant and Pritchett. Jackson was not sure which
individuals, exactly, had agreed to what part of the exchange.
As Jackson drove down Buena Vista Street with Blinco and Trotter in his Jeep, either
defendant or Pritchett flagged down the vehicle. Jackson parked on the side of the street in front
of the house where the murders occurred. Blinco and Trotter got out of the Jeep, shook hands with
defendant and Pritchett, and had a quiet one- to two-minute conversation with defendant and
Pritchett. Pritchett and Trotter walked to the back of the house, and defendant and Blinco stood in
the front yard. Moments later, a gunshot rang out from behind the house, immediately followed
by four more in quick succession. Jackson testified that, just after the shootings behind the house,
defendant pulled out a .38 revolver from his coat and shot Blinco multiple times. Blinco ran and
fell down into the street. Defendant ran to the back of the house, and Jackson drove away. Trotter
was lying on the ground behind the house. Defendant hopped the fence behind the house and
waited for Pritchett. Pritchett struggled to get over the fence, and one witness testified that Pritchett
had what appeared to be a gun in his pocket, which caused his pants to sag and start to fall down.
After Pritchett got over the fence, defendant and Pritchett ran through yards and across the street
running parallel to Buena Vista Street. Blinco and Trotter both died of multiple gunshot wounds.
Jackson, with the help of others, tracked down the identities of defendant and Pritchett using social
media, shared the information with the police, and later identified defendant and Pritchett from
photographic arrays.
Defendant was charged with first-degree premeditated murder, two counts of first-degree
felony murder, armed robbery, carrying a concealed weapon, and felony-firearm. At trial,
defendant testified that he shot Blinco in self-defense. Defendant admitted that he agreed to attend
the firearms transaction with Pritchett to provide protection and that he brought the .38 caliber
pistol for that purpose, but he denied that he ever went to the transaction with any intention to
shoot anyone or commit a robbery. Defendant testified that, after the gunshots rang out from
behind the house, Blinco pulled out a pistol and began firing it at defendant, grazing his left
3
Defendant and Pritchett were tried jointly with separate juries.
-2-
shoulder and piercing his jacket in another spot. Defendant testified that he then fired two shots
at Blinco from his .38 revolver, ran behind the house, tripped over the legs of Trotter, who was
lying on the ground, hopped the fence, and fled.
II. SUFFICIENCY OF THE EVIDENCE
A. FIRST-DEGREE FELONY MURDER AND SECOND-DEGREE MURDER
Defendant argues that there was insufficient evidence to support his murder convictions
and felony-firearm conviction. We disagree that there was insufficient evidence to support
defendant’s convictions of two counts of first-degree felony murder and one count of felony-
firearm. However, defendant was improperly convicted of second-degree murder because he was
also convicted of first-degree felony murder for the homicide of Blinco.
This Court reviews de novo a challenge to the sufficiency of the evidence. People v Martin,
271 Mich App 280, 340; 721 NW2d 815 (2006), aff’d 482 Mich 851 (2008). “When a defendant
challenges the sufficiency of the evidence in a criminal case, this Court considers whether the
evidence, viewed in a light most favorable to the prosecution, would warrant a reasonable juror to
find guilt beyond a reasonable doubt.” People v Werner, 254 Mich App 528, 530; 659 NW2d 688(2002). “In reviewing a sufficiency argument, this Court must not interfere with the jury’s role of
determining the weight of the evidence or the credibility of witnesses.” People v Stiller, 242 Mich
App 38, 42; 617 NW2d 697 (2000).
Defendant challenges both his first-degree felony-murder convictions and his second-
degree murder conviction. As explained in People v Carines, 460 Mich 750, 759; 597 NW2d 130(1999):
The elements of felony murder are: (1) the killing of a human being, (2)
with the intent to kill, to do great bodily harm, or to create a very high risk of death
or great bodily harm with knowledge that death or great bodily harm was the
probable result [i.e., malice], (3) while committing, attempting to commit, or
assisting in the commission of any of the felonies specifically enumerated in [the
statute, including armed robbery]. [Quotation marks and citation omitted.]
The elements of second-degree murder are: “(1) a death, (2) caused by an act of the defendant, (3)
with malice, and (4) without justification or excuse.” Werner, 254 Mich App at 531 (quotation
marks and citations omitted). Defendant also challenges his felony-firearm conviction on the basis
of the sufficiency of the evidence of his murder convictions. “To be guilty of felony-firearm, one
must carry or possess [a] firearm, and must do so when committing or attempting to commit a
felony.” People v Burgenmeyer, 461 Mich 431, 438; 606 NW2d 645 (2000) (emphasis omitted).
The elements of a crime can be proven with circumstantial evidence and reasonable inferences
drawn from that evidence. People v Fletcher, 260 Mich App 531, 560; 679 NW2d 127 (2004).
-3-
Defendant argues that the prosecution failed to bring forth sufficient evidence to show he
possessed the required malice to support a first-degree felony-murder conviction.4 “Malice is
defined as the intent to kill, the intent to cause great bodily harm, or the intent to do an act in
wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause
death or great bodily harm.” People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998). Malice
may be inferred when there is evidence that a defendant “intentionally set in motion a force likely
to cause death or great bodily harm.” Stiller, 242 Mich App at 43 (quotation marks and citation
omitted). “Malice may also be inferred from the use of a deadly weapon.” Carines, 460 Mich
at 759.
Viewing the evidence in the light most favorable to the prosecution, there was sufficient
evidence to find that defendant acted with malice and to convict defendant of first-degree felony
murder. Defendant agreed to attend a transaction involving the trading of firearms. As will be
discussed later, there is sufficient evidence to show that the proposed gun swap was actually a
guise for an armed robbery. By his own admission, defendant’s intention in attending the
transaction was to provide protection for Pritchett, and defendant carried a pistol for that purpose.
That deadly weapon was concealed in defendant’s pocket. There was testimony that, after the
gunfire behind the house began, without saying a word, defendant took out his weapon, fired at
and hit Blinco, killing him. There is evidence that defendant set in motion the events that led to
Blinco’s death, used a deadly weapon, and displayed the intent to cause death or serious bodily
injury, showing defendant acted with malice.
Defendant next argues that he did not possess malice because Blinco shot at defendant first
and defendant was acting in self-defense. “Once evidence of self-defense is introduced, the
prosecutor bears the burden of disproving it beyond a reasonable doubt.” People v Fortson, 202
Mich App 13, 20; 507 NW2d 763 (1993). “A killing may be considered justified if the defendant
acts in self-defense.” People v Bailey, 330 Mich App 41, 46; 944 NW2d 370 (2019). “[A]n
individual who is not the aggressor in an encounter is justified in using a reasonable amount of
force against his adversary, but only if the individual believes that he is in immediate danger of
bodily harm and that the use of force is necessary to avoid said danger.” Id. (quotation marks and
citation omitted). A defendant must honestly and reasonably believe that he is in danger of
imminent death or serious bodily harm. People v Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990).
Defendant contends that, even if he was mistaken about the degree of threat Blinco posed
to him, his claim of self-defense still succeeds because he had the honest and reasonable belief that
the use of deadly force was necessary. The prosecution produced sufficient evidence to disprove
defendant’s claim that he acted in self-defense. Ultimately, the jury’s conclusion that defendant
did not act in self-defense was made by assessing defendant’s credibility, and this Court may not
interfere with a jury’s credibility determination. Stiller, 242 Mich App at 42. The only evidence
defendant offered that he acted in self-defense was his own testimony that Blinco fired at him first,
4
Defendant also asserts that the prosecution failed to bring forth sufficient evidence of a
predicate offense, in this case armed robbery, to support a first-degree felony-murder conviction.
Whether there is sufficient evidence of an armed robbery is discussed in the discussion of
defendant’s second issue on appeal.
-4-
and there was evidence to the contrary. Jackson testified that defendant fired at Blinco, who never
fired a weapon, and without being provoked by Blinco. No witness besides Jackson actually saw
anyone fire a weapon. No witness testified that Blinco had a weapon, used a weapon, or otherwise
attacked defendant. There is also a lack of physical evidence that definitively shows Blinco or
Jackson fired at defendant. Although there were shell casings recovered from the street, they were
recovered in front of a different house and their presence was explained by the fact that there was
a shooting on the street a few days before the murders in this case. No firearms were recovered
from the crime scene to link Blinco to the shots that left shell casings in the street or to otherwise
support defendant’s contention that Blinco shot at defendant. On the basis of this evidence, a
reasonable jury could conclude that defendant did not act in self-defense and displayed the malice
necessary to properly convict defendant of first-degree felony murder.
Defendant also mentions that, “at the very least,” he acted under the influence of passion
when he shot and killed Blinco, without developing the argument or citing to any legal authority.
In Michigan, a charge of murder is mitigated to voluntary manslaughter if it is shown that the
defendant acted in the heat of passion. People v Reese, 491 Mich 127, 149; 815 NW2d 85 (2012).
The Supreme Court has explained that “to show voluntary manslaughter, one must show that the
defendant killed in the heat of passion, the passion was caused by adequate provocation, and there
was not a lapse of time during which a reasonable person could control his passions.” People v
Mendoza, 468 Mich 527, 535; 664 NW2d 685 (2003). By failing to cite any supporting legal
authority, defendant has abandoned this issue. People v Watson, 245 Mich App 572, 587; 629
NW2d 411 (2001). Even had defendant not abandoned the issue, there is no error warranting
reversal. The same analysis of defendant’s self-defense argument applies equally to his claim of
sudden heat of passion—there is sufficient evidence to show that defendant was unprovoked when
he shot Blinco. Accordingly, there is sufficient evidence to support defendant’s felony-murder
convictions. Because there was sufficient evidence that defendant possessed a firearm during the
commission of first-degree felony murder, there is, likewise, sufficient evidence to support
defendant’s felony-firearm conviction. Burgenmeyer, 461 Mich at 438.
Regarding defendant’s second-degree murder conviction, the trial court violated
defendant’s Fifth Amendment right to not be placed twice in jeopardy for the same crime when it
entered judgment against and sentenced defendant for both first-degree felony murder and second-
degree murder for the killing of Blinco.5 Although defendant did not raise this issue in the trial
court or on appeal, “a double jeopardy issue presents a significant constitutional question that will
be considered on appeal regardless of whether the defendant raised it before the trial court.”
People v McGee, 280 Mich App 680, 682; 761 NW2d 743 (2008). This Court has the authority
“to go beyond the issues raised and address any issue that, in the court’s opinion, justice requires
be considered and resolved.” People v Cain, 238 Mich App 95, 127; 605 NW2d 28 (1999)
(quotation marks and citation omitted).
5
Double jeopardy is not implicated when a defendant is convicted of both armed robbery and
first-degree felony murder with the robbery as the predicate offense. People v Smith, 478 Mich
292, 319; 733 NW2d 351 (2007).
-5-
Both the Michigan and United States Constitutions provide that a person shall not be twice
put into jeopardy for the same crime. Const 1963, art 1, § 15; US Const, Am V. This protection
applies to multiple prosecutions for the same crime and multiple punishments for the same crime.
People v Herron, 464 Mich 593, 599; 628 NW2d 528 (2001). The Supreme Court held in Herron
that the Fifth Amendment right to be free from multiple punishments is violated when a defendant
is convicted of and sentenced for two different crimes arising from the homicide of a single victim.
Id. at 604. The Court reasoned that the hierarchical nature of homicide offenses evidences the
Legislature’s intent to prohibit dual convictions and punishment for the same action. Id. at 606.
The appropriate remedy when a defendant is unconstitutionally convicted of and punished for
multiple counts of murder for a single victim is to affirm the more serious offense and vacate the
conviction and sentence of the lesser offense. Id. at 609.
In this case, the trial court erred when it entered judgment and sentences against defendant
for both felony murder and the lesser offense of second-degree murder for the homicide of Blinco.
Therefore, we vacate defendant’s second-degree murder conviction and sentence.
B. ARMED ROBBERY
Defendant argues that there was insufficient evidence to support his conviction of armed
robbery. We disagree.
As stated in People v Chambers, 277 Mich App 1, 7; 742 NW2d 610 (2007), to prove
armed robbery, the prosecution must establish:
(1) the defendant, in the course of committing a larceny of any money or other
property that may be the subject of a larceny, used force or violence against any
person who was present or assaulted or put the person in fear, and (2) the defendant,
in the course of committing the larceny, either possessed a dangerous weapon,
possessed an article used or fashioned in a manner to lead any person present to
reasonably believe that the article was a dangerous weapon, or represented orally
or otherwise that he or she was in possession of a dangerous weapon.
A larceny is committed when one takes and carries away the goods or personal property of another
without the consent and against the will of the owner. People v Ainsworth, 197 Mich App 321,
324; 495 NW2d 177 (1992). Under the statute, “ ‘in the course of committing a larceny’ includes
acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in
flight or attempted flight after the commission of the larceny, or in an attempt to retain possession
of the property.” MCL 750.530(2). “[T]he prosecutor need not show that the victim actually
owned the property taken. Rather, the prosecutor need only show that the property was taken in
the victim’s ‘presence’ and that the victim’s right to possess the property was superior to the
defendant’s right to possess it.” People v Rodgers, 248 Mich App 702, 707; 645 NW2d 294(2001).
Defendant argues that he is not guilty of armed robbery because the prosecution failed to
prove that a larceny was committed. The prosecution offered sufficient evidence to prove that
defendant and Pritchett committed a larceny. Trotter was at Buena Vista Street for the purpose of
exchanging with defendant and Pritchett a nine-millimeter pistol he possessed, making it
-6-
reasonable to infer that Trotter actually possessed a nine-millimeter pistol during the encounter.
Also, one of the two shell casings discovered in the backyard was a nine-millimeter casing, the
caliber of the handgun that Trotter intended to trade to defendant and Pritchett. Trotter was killed
after being shot multiple times, showing the use of force or violence. After the shootings, no
firearm was recovered from the crime scene to show Trotter still possessed the gun he brought to
the transaction. Helen Bledsoe testified that, after the shooting, she saw Pritchett with what
appeared to be a gun in his pocket. Thus, there was circumstantial evidence that Trotter possessed
a nine-millimeter handgun, Pritchett took the handgun without Trotter’s consent, and Pritchett
carried away Trotter’s property.
The prosecution also introduced other acts evidence under MRE 404(b)6 to show that
defendant and Pritchett had a common scheme or plan to commit armed robberies on Buena Vista
Street. On January 27, 2018, defendant and Pritchett committed another armed robbery under
circumstances nearly identical with those in this case. Pritchett and one of the two victims of that
robbery used social media to arrange a transaction for Pritchett to sell iPhones to him. Pritchett
set up a meeting for the sale at about 3:00 or 4:00 p.m. on Buena Vista Street. While the first
victim was checking to see if the iPhone worked, defendant held a pistol up to the head of the
second victim and took his phone and cash, and then Pritchett took the phone and cash of the first
victim. Defendant admitted to the larceny, but testified that he was unarmed. Given this evidence,
a rational jury could find beyond a reasonable doubt that a larceny was committed in this case.
Although defendant has not argued that the taking of the property was not attributed to him,
it bears noting that there was sufficient evidence to prove that defendant was guilty of armed
robbery under a theory of aiding and abetting.7 As stated in People v Tanner, 255 Mich App 369,
418-419; 660 NW2d 746 (2003), rev’d on other grounds by 469 Mich 437 (2003), to support a
finding that a defendant aided and abetted a crime, the prosecution must show that:
(1) the crime charged was committed by defendant or some other person, (2)
defendant performed acts or gave encouragement that assisted the commission of
the crime, and (3) defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time that he gave aid
and encouragement. An aider and abettor must have the same requisite intent as
that required of a principal. [Citation omitted.]
6
MRE 404(b)(2) allows the prosecutor to use evidence of crimes or acts separate from the
charged offense to prove “motive, opportunity, intent, preparation, scheme, plan, or system in
doing an act, knowledge, identity, or absence of mistake or accident.”
7
The prosecution argued that defendant could be found guilty under a theory that he aided and
abetted Pritchett, and the jury was given an instruction on aiding and abetting. “[A]iding and
abetting is not a separate substantive offense. Rather, being an aider and abettor is simply a
theory of prosecution that permits the imposition of vicarious liability for accomplices.” People
v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006) (quotation marks and footnote omitted).
-7-
“An aider and abettor’s state of mind may be inferred from all the facts and circumstances.”
Carines, 460 Mich at 758 (quotation marks and citation omitted).
Defendant went to a firearms transaction with Pritchett while carrying a gun to provide
protection, thus participating in the deal. Defendant also knew that Pritchett was carrying a
firearm. After the shooting started behind the house, defendant immediately began firing at Blinco.
None of the witnesses besides Jackson described any type of delay between gunshots or separate
bursts of fire, leading to the inference that the near-simultaneous shootings were planned. At a
minimum, defendant’s shooting of Blinco aided in Pritchett’s escape from the robbery. After the
shooting, defendant and Pritchett fled together with defendant waiting for Pritchett to climb over
the fence in the backyard. The fact that defendant and Pritchett committed a robbery under almost
identical circumstances a few weeks before the murders in this case further indicates that there was
planning and coordination between defendant and Pritchett to carry out the armed robbery. In
sum, on the basis of all the evidence, a rational jury could conclude that there was a larceny, and
defendant perpetrated with Pritchett a planned armed robbery.
III. SENTENCING
Defendant argues that he is entitled to resentencing on his felony-murder convictions
because the trial court did not properly consider the mitigating sentencing factor of defendant’s
youth and did not adequately justify its sentencing decisions. We agree.
This Court reviews the reasonableness of a sentencing decision for an abuse of discretion.
People v Skinner, 502 Mich 89, 131; 917 NW2d 292 (2018), lv held in abeyance ___ Mich ___;
953 NW2d 383 (2021). “An abuse-of-discretion standard recognizes that there may be more than
one principled outcome and the trial court may not deviate from that principled range of
outcomes.” People v Boykin, ___ Mich ___, ___; ___ NW2d ___ (2022) (Docket Nos. 157738
and 158695); slip op at 6.
Defendant was sentenced under MCL 769.25. MCL 769.25(2)(b) provides for the
sentencing of a criminal defendant who was a juvenile at the time the offense was committed,
convicted of enumerated crimes including first-degree murder. Under the statute, the prosecutor
is permitted to move in the trial court to sentence a juvenile defendant to life imprisonment without
the possibility of parole. MCL 769.25(2). If the prosecutor does not seek such a sentence, the
defendant shall be sentenced to a maximum sentence of not less than 60 years’ imprisonment and
a minimum sentence between 25 and 40 years’ imprisonment. MCL 769.25(9). In this case, the
prosecutor did not seek a sentence of life without the possibility of parole, and defendant was
sentenced to a term of years.
When a criminal statute provides a range of sentencing outcomes, the trial court has the
duty to exercise its discretion to tailor a sentence to the “particular circumstances of the case and
the offender,” and to do so in a way that “ensures the individualized sentence conforms with the
principle of proportionality.” Boykin, ___ Mich at ___; slip op at 7. “An appropriate sentence
should give consideration to the reformation of the offender, the protection of society, the
discipline of the offender, and the deterrence of others from committing the same offense.” Id.-8-
These considerations, known as the Snow8 factors, lay out the aims of criminal sentencing. People
v Wines, 323 Mich App 343, 351; 916 NW2d 855 (2018), rev’d in part on other grounds 506 Mich
954 (2020).
When sentencing a juvenile defendant, there are additional considerations regarding the
defendant’s age. The United States Supreme Court has identified three important distinctions
between juvenile and adult offenders: (1) juveniles possess a “lack of maturity and an
underdeveloped sense of responsibility” that leads to “impetuous and ill-considered actions and
decisions;” (2) “juveniles are more vulnerable or susceptible to negative influences and outside
pressures, including peer pressure;” and (3) “the character of a juvenile is not as well formed as
that of an adult,” meaning a juvenile’s character traits are more likely to positively evolve than an
adult’s. Roper v Simmons, 543 US 551, 569-570; 125 S Ct 1183; 161 L Ed 2d 1 (2005) (quotation
marks and citations omitted). In a later case, the Supreme Court identified a number of factors for
a sentencing court to consider regarding the mitigating factor of a juvenile defendant’s youth.
Miller v Alabama, 567 US 460, 477-478; 132 S Ct 2455; 183 L Ed 2d 407 (2012). The Michigan
Supreme Court has summarized the Miller factors to consider as:
(1) “his chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences”; (2) “the family and
home environment that surrounds him—and from which he cannot usually extricate
himself—no matter how brutal or dysfunctional”; (3) “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”; (4) whether “he might
have been charged [with] 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 (5) “the possibility of rehabilitation . . . .” [Skinner, 502 Mich at
114-115, quoting Miller, 567 US at 477-478.]
Further, youth is, in and of itself, a mitigating factor. Boykin, ___ Mich at ___; slip op at 13.
When a defendant is sentenced to a term of years under MCL 769.25(9), the statute does
not provide any guidance to trial courts on how to craft a minimum sentence within the 25- to 40-
year minimum sentence range. In Wines, this Court held that trial courts should take into
consideration the attributes of youth and be guided by the Snow and Miller factors when crafting
a minimum sentence under MCL 769.25. Wines, 323 Mich App at 352. In Boykin, the Supreme
Court affirmed that holding and further explained the requirements for a trial court sentencing a
juvenile offender for first-degree murder. Boykin, ___ Mich at ___; slip op at 16. A sentencing
court is required to consider age as a mitigating factor when crafting a first-degree murder sentence
for a juvenile, whether it is a life sentence or a term of years sentence. Id. at ___; slip op at 17.
The mitigating factor of youth should inform the trial court’s consideration of the Snow factors.
Id. at ___; slip op at 16. Unlike when conducting a Miller hearing that is required to impose a life-
without-parole sentence under MCL 769.25(6), the trial court is not required to directly address
the Miller factors on the record when sentencing a juvenile defendant to a term of years. Id. at
8
People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972).
-9-
___; slip op at 17. Rather, the trial court’s articulation of its sentencing rationale only needs to
comply with the “general requirement that a trial court must adequately explain its sentence on the
record in order to facilitate appellate review.” Id. However, it must be clear that the trial court
“properly considered youth to be mitigating.” Id. at ___; slip op at 19.
Defendant’s sentences of 40 to 60 year’s imprisonment for each felony-murder conviction
fall within the guidelines set out by the Legislature in MCL 769.25(9). Although the sentencing
guidelines are now only advisory, a sentence within the guidelines range is still presumptively
reasonable. People v Posey, 334 Mich App 338, 358; 964 NW2d 862 (2020). “To overcome the
presumption, [a defendant must] show that there was something unusual about the circumstances
of his case that made the sentence disproportionate.” People v McFarlane, 325 Mich App 507,
538; 926 NW2d 339 (2018). Although defendant’s sentence is presumptively proportionate,
resentencing is required in this case because the trial court did not offer any rationale for its
sentencing decision on the record, which it is required to do to facilitate appellate review. People
v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). At the sentencing hearing, the trial court
made corrections to the scoring of the sentencing guidelines. Defense counsel did not make an
argument regarding what would be a proportionate sentence for defendant. The trial court then
heard the prosecution’s request for sentencing defendant to the top of the guidelines range. The
court asked defendant if he had anything to say, and defendant did not. Then the trial court
announced defendant’s sentences without elaboration of its reasons for imposing the sentences.
This Court is prohibited from conducting a de novo review of the proportionality of a sentence.
Skinner, 502 Mich at 132. Without a record upon which to consider whether the trial court abused
its discretion when sentencing defendant, there is nothing for this Court to review regarding the
proportionality of defendant’s sentences. Therefore, we remand to the trial court to resentence
defendant and articulate its reasoning on the record.
IV. CONCLUSION
We affirm defendant’s convictions of first-degree felony murder, armed robbery, and
felony-firearm, vacate defendant’s conviction and sentence for second-degree murder, and remand
to the trial court to modify defendant’s judgment of sentence and for resentencing on defendant’s
first-degree felony murder convictions. We retain jurisdiction.
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
/s/ Michael F. Gadola
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Court of Appeals, State of Michigan
ORDER
Kathleen Jansen
People of MI v David McNair Presiding Judge
Docket No. 357974 Deborah A. Servitto
LC No. 18-002868-01-FC Michael F. Gadola
Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 28 days of the Clerk’s
certification of this order, and they shall be given priority on remand until they are concluded. As stated
in the accompanying opinion, we affirm defendant's convictions of first-degree felony murder, armed
robbery, and felony-firearm, vacate defendant's conviction and sentence for second-degree murder, and
REMAND to the trial court to modify defendant's judgment of sentence and for resentencing on
defendant's first-degree felony murder convication. The proceedings on remand are limited to these
issues.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within
seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 21 days after
completion of the proceedings.
_______________________________
Presiding Judge
December 29, 2022