in Re Charles Kunta Lewis Jr

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

In re CHARLES KUNTA LEWIS, JR., Minor.

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 9, 2019
Petitioner-Appellee,

v No. 337716
Ingham Circuit Court
CHARLES KUNTA LEWIS, JR., Family Division
LC No. 10-000001-DJ
Respondent-Appellant.

Before: TUKEL, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

Charles Kunta Lewis, Jr., appeals as of right the February 15, 2017 sentences imposed for
his convictions by a jury in 2012 of first-degree felony murder, MCL 750.316(1)(b); first-degree
home invasion, MCL 750.110a(2); conspiracy to commit first-degree home invasion, MCL
750.110a(2) and MCL 750.157a(a); assault with intent to rob while armed, MCL 750.89;
conspiracy to commit assault with intent to rob while armed, MCL 750.89 and MCL
750.157a(a); and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. For the reasons provided below, we affirm.

The convictions arose from the assault and killing of Shayla Johnson in Lansing in 2010.
At trial, the prosecution presented testimony that (1) Lewis had joined a Lansing gang called the
Block Burners in July 2010; (2) on July 23, 2010, the gang formulated a plan to commit an
armed robbery and kidnapping against Johnson and her boyfriend; (3) members of the gang
gathered several guns; (4) Lewis, who had a gun, and others proceeded into Johnson’s home; (5)
one of the assailants hit Johnson with a gun and she started bleeding profusely; (6) the assailants,

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including Lewis’s father,1 carried Johnson to a car trunk; (7) Johnson maneuvered her leg to keep
the trunk from closing; and (8) Lewis’s father shot and killed Johnson. Evidence showed that
Lewis specifically asked for a gun before the crime, that he was part of the group that surrounded
Johnson’s bed before the assault and killing, and that he had intimidated one of the adult
members of the group of assailants.

Lewis was a minor, just shy of turning 14, at the time of the crimes but was tried and
convicted as an adult. In April 2012, the court initially imposed a delayed sentence and
probation, as allowed for juveniles by MCL 712A.18(1)(m). In February 2017, the court
revoked the juvenile sentence and, in accordance with MCL 769.25(9), sentenced Lewis to 25 to
60 years’ imprisonment for murder. The court also sentenced Lewis to a consecutive term of
two years’ imprisonment for felony-firearm and to four terms of 10 to 20 years’ imprisonment
for the remaining four convictions.

Although a sentence of life without the possibility of parole for Lewis’s murder
conviction under MCL 769.25 was a possibility at the initial sentencing, the prosecutor did not
seek such a sentence and instead argued for a delayed sentence under MCL 712A.18(1)(m),
whereby the court could exercise jurisdiction over Lewis until he reached the age of 21. See
MCR 3.945(B)(1) and MCL 712A.18i(4); see also, generally, In re Juvenile Commitment Costs,
240 Mich App 420, 431-433; 613 NW2d 348 (2000). By imposing a delayed sentence, the court
could, during or toward the end of the juvenile probationary period, sentence Lewis as an adult if
such a sentence was warranted. MCL 712A.18i. As noted, the court did impose a delayed
sentence, and for multiple years Lewis performed exceptionally well at his juvenile-justice
facilities. However, in April 2016 he was transferred from a “lockdown” facility to the Martin
Luther King House (MLK House), where he was given the freedom to interact with the outside
community. He violated various rules of this facility, and in September 2016, he absconded
from the facility and was apprehended by police approximately 10 days later. Evidence showed
that he was involved in the theft of a vehicle in Grand Ledge and that he fled from the police
when they stopped this stolen vehicle. As a result, the court imposed an adult sentence. MCL
769.25(9) mandates that a minimum sentence of 25 years applies when (1) a juvenile convicted
of first-degree murder is being sentenced as an adult and (2) a sentence of life imprisonment
without the possibility of parole is not imposed. The principal argument on appeal is that this
25-year mandatory minimum sentence is unconstitutional.

I. IMPOSITION OF AN ADULT SENTENCE

Lewis first argues that the trial court, at the second sentencing in February 2017, should
not have imposed an adult sentence. “In reviewing a trial court’s decision to sentence a minor as
a juvenile or as an adult, this Court applies a bifurcated standard of review.” People v Cheeks,
216 Mich App 470, 474; 549 NW2d 584 (1996). “We review the trial court’s findings of fact

1
Lewis’s father had been released from prison approximately a month before the crimes; he had
been in prison for most of Lewis’s life.

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under the clearly erroneous standard and the ultimate decision to sentence the minor as a juvenile
or as an adult for an abuse of discretion.” Id.

MCL 712A.18i(3) states:

If the court entered an order of disposition under section 18(1)(n)[2] of this
chapter delaying imposition of sentence, the court shall conduct a review hearing
to determine whether the juvenile has been rehabilitated and whether the juvenile
presents a serious risk to public safety. If the court determines that the juvenile
has not been rehabilitated or that the juvenile presents a serious risk to public
safety, jurisdiction over the juvenile shall be continued or the court may impose
sentence. In making this determination, the court shall consider the following:

(a) The extent and nature of the juvenile’s participation in education, counseling,
or work programs.

(b) The juvenile’s willingness to accept responsibility for prior behavior.

(c) The juvenile’s behavior in his or her current placement.

(d) The prior record and character of the juvenile and his or her physical and
mental maturity.

(e) The juvenile’s potential for violent conduct as demonstrated by prior behavior.

(f) The recommendations of any institution or agency charged with the juvenile’s
care for the juvenile’s release or continued custody.

(g) Other information the prosecuting attorney or juvenile may submit.

MCL 712A.18i(7) states:

The court shall conduct a final review of the juvenile’s probation not less
than 3 months before the end of the probation period. If the court determines at
this review that the best interests of the public would be served by imposing any
other sentence provided by law for an adult offender, the court may impose the
sentence. In making its determination, the court shall consider the criteria
specified in subsection (3) and all of the following criteria:

(a) The effect of treatment on the juvenile’s rehabilitation.

2
At the time MCL 712A.18i was enacted, the pertinent provision for a delayed sentence was
located at MCL 712A.18(1)(n). See 1996 PA 244. However, since then, the provisions of MCL
712A.18(1)(n) have been relocated to MCL 712A.18(1)(m). But MCL 712A.18i has not yet
been amended since its enactment and therefore still refers to the outdated “section 18(1)(n).”

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 (b) Whether the juvenile is likely to be dangerous to the public if released.

(c) The best interests of the public welfare and the protection of public security.

MCL 712A.18i also states, in part:

(9) If a juvenile placed on probation under an order of disposition delaying
imposition of sentence is found by the court to have violated probation by being
convicted of a felony or a misdemeanor punishable by imprisonment for more
than 1 year, or adjudicated as responsible for an offense that if committed by an
adult would be a felony or a misdemeanor punishable by imprisonment for more
than 1 year, the court shall revoke probation and sentence the juvenile to
imprisonment for a term that does not exceed the penalty that could have been
imposed for the offense for which the juvenile was originally convicted and
placed on probation.

(10) If a juvenile placed on probation under an order of disposition delaying
imposition of sentence is found by the court to have violated probation other than
as provided in subsection (9), the court may impose sentence . . . .

In sentencing Lewis as an adult, the court mentioned that Lewis had hidden urine in his
pants in an attempt to falsify the results of a substance-use test at MLK House. This finding by
the court was not clearly erroneous, given the testimony about the incident by juvenile-justice
specialist Angelo Flowers and by MLK House therapist Alexis Terry. The court also mentioned
that Lewis had absconded from MLK House, and this finding, again, was amply supported by the
testimony of Flowers and Terry. Finally, the court mentioned the incident involving the vehicle
from Grand Ledge, and Lewis’s involvement in this incident was supported by the testimony of
Lansing Police Department Detective Lee McCallister. Although additional misbehavior was
not explicitly delineated by the trial court, evidence supported that Lewis also had violated MLK
House rules by having a cellular telephone and a Facebook account and by being in Lansing
multiple times without authorization. Lewis also had appeared in photographs with what
appeared to be gang signs.3

Victor Bozzo, another juvenile-justice specialist, thought that Lewis could be
rehabilitated, but he admitted that his hope was “not as strong as it once was . . . due to the fact
of the things that have transpired.” Flowers testified that the only realistic option for further
treatment for Lewis would be the Shawono Center in Grayling, but Lewis already had completed
the treatments at Shawono before transferring to MLK House. Additionally, at the time of
sentencing, Lewis would be turning 21 in approximately six months, so if sentenced as a juvenile
he would only have six more months of treatment available to him.

Lewis abandoned his job, see MCL 712A.18i(3)(a), disobeyed multiple rules of MLK
House, see MCL 712A.18i(3)(c), demonstrated a regression in his rehabilitation efforts, see

3
Lewis’s crimes in July 2010 were related to gang membership.

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MCL 712A.18i(7)(a), and demonstrated a risk to public security by fleeing police in a stolen
vehicle, see MCL 712A.18i(7)(c). In addition, given his multiple recent transgressions, it was
unlikely that in only six months he would be rehabilitated. Lewis contends on appeal that his
recent transgressions were minor and were, in part, precipitated by the illness and death of his
mother, but it is important to remember that the court was sentencing Lewis not based solely on
his recent actions but for his extremely serious crimes of July 2010. After these crimes, Lewis
received years of intensive treatment, but he was still demonstrating flagrant violations of rules
and violations of societal norms. He absconded from MLK House for approximately 10 days
before being apprehended by police. Under all the circumstances, the trial court did not abuse its
discretion by sentencing Lewis as an adult instead of continuing with Lewis’s treatment as a
juvenile.

Lewis argues that regardless of the constitutionality of MCL 769.25(9), the decision to
sentence him as an adult violated his right to due process because the court did not individualize
its decision by taking into account his youth. While Lewis did make a due-process argument
below, this was made in the context of arguing that MCL 769.25(9) was unconstitutional—not in
the context of arguing that the trial court should have sentenced Lewis as a juvenile instead of as
an adult. Accordingly, because Lewis did not make his appellate due-process argument below, it
is not preserved. See People v Hanks, 276 Mich App 91, 95; 740 NW2d 530 (2007). This Court
reviews unpreserved issues for plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

In support of his argument, Lewis cites People v Adams, 430 Mich 679, 701; 425 NW2d
437 (1988). In Adams, the Court stated that during sentencing, the “focus [is] on the defendant.”
Id. Lewis also cites Miller v Alabama, 567 US 460, 465; 132 S Ct 2455; 183 L Ed 2d 407
(2012), for the proposition that youth must be taken into account in fashioning an individualized
sentence. Lewis has failed to establish a clear or obvious error with respect to his unpreserved
due-process issue. The court very clearly took Lewis’s youth into account and individualized his
sentence by (1) affording him years of intensive treatment in juvenile-justice facilities; (2)
initially disregarding his attempt to falsify the results of a substance abuse test, and by then
giving Lewis more time to demonstrate progress; and (3) then, after learning of further
transgressions, sentencing Lewis, for his murder conviction, to the lowest possible term under
MCL 769.25(9). That statute provides that “[i]f the court decides not to sentence the individual
to imprisonment for life without parole eligibility, the court shall sentence the individual to a
term of imprisonment for which the maximum terms shall be not less than 60 years and the
minimum term shall be not less than 25 years or more than 40 years.”

II. CONSTITUTIONALITY OF MCL 769.25(9)

Lewis contends that the mandatory minimum sentence of 25 years’ imprisonment in
MCL 769.25(9) is unconstitutional because it violates the precepts of Miller and related cases
involving juvenile justice. We review issues of constitutional law de novo. People v LeBlanc,
465 Mich 575, 579; 640 NW2d 246 (2002).

In Miller, two 14-year-old defendants were convicted of murder and given mandatory
sentences of life imprisonment without the possibility of parole. Miller, 567 US at 465. The
Court concluded that this mandatory sentencing

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 prevents those meting out punishment from considering a juvenile’s “lessened
culpability” and greater “capacity for change,” Graham v Florida, 560 US 48, 68,
74, 130 S Ct 2011, 2016-2027, 2029-2030; 176 L Ed 2d 825 (2010),[4] and runs
afoul of our cases’ requirement of individualized sentencing for defendants facing
the most serious penalties. We therefore hold that mandatory life without parole
for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on “cruel and unusual punishments.” [Miller, 567 US
at 465.5]

The Miller Court added:

We . . . hold that the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders. Cf.
Graham, 560 US at 75 (“A State is not required to guarantee eventual freedom,”
but must provide “some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation”). 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 [the] . . . alternative
argument that the Eighth Amendment requires a categorical bar on life without
parole for juveniles, or at least for those 14 and younger. [Miller, 567 US at 479.]

In People v Skinner, 502 Mich 89, 114-115; 917 NW2d 292 (2018), quoting Miller, 567
US at 477-478, the Michigan Supreme Court set forth the various attributes of youth that the
Miller Court found important in considering a juvenile’s sentence:

(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 . . . . [Quotation
marks omitted; brackets added by Skinner.]

Lewis essentially contends that these various attributes of youth must be considered in
every sentencing decision involving juveniles and that MCL 769.25(9) is unconstitutional

4
The United States Supreme Court ruled in Graham “that life without parole violates the Eighth
Amendment when imposed on juvenile nonhomicide offenders.” Miller, 567 US at 466-467.
5
Miller applies retroactively. People v Skinner, 502 Mich 89, 106; 917 NW2d 292 (2018).

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because it does not allow for such individualized sentencing, does not provide a meaningful
opportunity for release, results in cruel or unusual punishment,6 and violates due process.

Miller, by its own terms, however, is limited to its facts—it dealt only with sentences of
life imprisonment without the possibility of parole that are imposed mandatorily, without
consideration of the attributes of youth. In finding a constitutional violation regarding such
sentencing schemes, the Miller Court discussed the imposition of “the harshest sentences on
juvenile offenders” and noted that a sentence of life without parole disregards the possibility for
rehabilitation and change. Miller, 567 US at 472-473. Graham, too, was focused on life-
without-parole sentences, Graham, 560 US at 69-70, 74, 82, and the Miller Court, after
discussing Graham, stated, “Graham insists that youth matters in determining the
appropriateness of a lifetime of incarceration without the possibility of parole,” Miller, 567 US at
473. The Miller Court stated that “the mandatory penalty schemes at issue here prevent the
sentence from taking account of [characteristics of youth]” and “prohibit a sentencing authority
from assessing whether the law’s harshest term of imprisonment proportionately punishes a
juvenile offender.” Id. at 474. The Court added that this “contravenes . . . [the] principle[] that
imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they
were not children.” Id. The Court noted that a sentence of life without parole, as applied to
juveniles, was akin to the death penalty. Id. at 474-475. It reiterated that “in imposing a State’s
harshest penalties, a sentencer misses too much if he treats every child as an adult.” Id. at 477.

Although Graham and Miller were concerned with a categorical Eighth Amendment
violation, see Miller, 567 US at 465; Graham, 560 US at 53, it is clear that Graham and Miller
considered that Eighth Amendment argument in the context of life-without-parole sentences
without consideration of the attributes of youth. But, as the prosecution correctly notes, Lewis is
attempting to expand these cases beyond their holdings. Lewis also argues that MCL 769.25(9)
violates the constitutional guarantees of due process. See US Const, Am XIV, and Const 1963,
art 1, § 17. But Lewis’s cited authority for this due-process argument is Miller. Lewis’s attempt
to reframe this issue fails because Miller simply is not apposite to Lewis’s situation; MCL
769.25 does not implicate life-without-possibility-of-parole sentences.

In addition, this Court in People v Wines, 323 Mich App 343, 352; 916 NW2d 855
(2018), held that “there is no constitutional mandate requiring the trial court to specifically make
findings as to the Miller factors except in the context of a decision of whether to impose a
sentence of life without parole,” which is inapplicable here because the prosecutor in this case
did not seek a life-without-parole sentence. Thus, when imposing a sentence, other than one for

6
“[T]he Eighth Amendment of the United States Constitution prohibits ‘cruel and unusual
punishments,’ US Const, Am VIII, [and] the Michigan Constitution prohibits ‘cruel or unusual
punishment,’ Const 1963, art 1, § 16.” People v Payne, 304 Mich App 667, 674 n 2; 850 NW2d
601 (2014). Lewis does not make any argument on appeal that the holdings of the United States
Supreme Court should be expanded in Michigan based on this difference in wording.

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life without parole, the failure of MCL 769.25(9) to allow consideration of these factors cannot
form the basis of a constitutional violation.7

7
Under the Michigan Constitution, the prohibition against cruel or unusual punishment includes
a prohibition on grossly disproportionate sentences. People v Bullock, 440 Mich 15, 32; 485
NW2d 866 (1992). To the extent that defendant makes an argument that his sentence it grossly
disproportionate, such an argument is foreclosed by Bullock, under which we employ a three-part
test that considers (1) the severity of the sentence imposed and the gravity of the offense, (2) a
comparison of the penalty to penalties for other crimes under Michigan law, and (3) a
comparison between Michigan’s penalty and penalties imposed for the same offense in other
states. Id.
As to the first question: Defendant was convicted of first-degree felony murder, which is
defined to be first-degree murder, the most serious offense there is, see MCL 750.316(b), and
which, except in the case of a juvenile, would be punishable by life imprisonment without
possibility of parole. “Rather than imposing fixed sentences of life without parole on all
defendants convicted of [first-degree murder], MCL 769.25 now establishes a default sentencing
range for individuals who commit first-degree murder before turning 18 years of age. Pursuant
to the new law, absent a motion by the prosecutor seeking a sentence of life without parole, the
court shall sentence the individual to a term of imprisonment for which the maximum term shall
be not less than 60 years and the minimum term shall be not less than 25 years or more than 40
years.” Skinner, 502 Mich at 102-103. Thus, under the statute, the sentence applicable to a
juvenile is significantly less than is called for by the severity of the offense.
As to the second question: The sentence applicable in Michigan is lower than that for
other serious and violent offenses, such as certain degrees of criminal sexual conduct, which are
punishable by up to life imprisonment, see MCL 750.520(b)(a), and some of which provide for a
mandatory minimum 25-year sentence, see MCL 750.520(b)(2)(b). Armed robbery is punishable
by imprisonment for life or for any term of years, see MCL 750.529.
And finally, as to the third question, other states punish murder committed by a juvenile
at least as severely as Michigan. In Ohio, for example, which does not appear to have a statute
enacted in light of Miller, its intermediate appellate court has upheld a sentence of life with
parole eligibility after 30 years. See State v Jones, 2015-Ohio-3506, ¶ 12 (Ohio App, 2015). As
of 2014, 12 other states had passed statutes addressing sentences for juveniles convicted of
murder; none provided for a sentence of less than 25 years, and minimum sentences ranged all
the way up to 40 years. See The Sentencing Project, Slow to Act: State Responses to 2012
Supreme Court Mandate on Life Without Parole,
(accessed May 31, 2019). Michigan is thus at the low
end of the post-Miller legislative responses. Thus, there is no basis for a claim that MCL
769.25(9) provides for a grossly disproportionate sentence.

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Affirmed.

/s/ Jonathan Tukel
/s/ Deborah A. Servitto
/s/ Michael J. Riordan

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