Order Michigan Supreme Court
Lansing, Michigan
May 29, 2020 Bridget M. McCormack,
Chief Justice
154773 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
PEOPLE OF THE STATE OF MICHIGAN, Richard H. Bernstein
Plaintiff-Appellee, Elizabeth T. Clement
Megan K. Cavanagh,
Justices
v SC: 154773
COA: 325662
Macomb CC: 2009-005244-FC
IHAB MASALMANI,
Defendant-Appellant.
_____________________________________/
On order of the Court, leave to appeal having been granted and the briefs and oral
arguments of the parties having been considered by the Court, we VACATE our order of
April 5, 2019. The application for leave to appeal the September 22, 2016 judgment of
the Court of Appeals is DENIED, because we are no longer persuaded that the questions
presented should be reviewed by this Court.
MCCORMACK, C.J. (dissenting).
I respectfully dissent from the Court’s determination that leave to appeal was
improvidently granted in this case. The trial court’s sentencing decision reveals the
critical flaw in this Court’s opinion in People v Skinner, 502 Mich 89 (2018): by reading
the Sixth Amendment out of MCL 769.25 we have permitted life-without-parole
sentences that violate the Eighth Amendment. I would overrule Skinner. Short of that, I
would vacate the decision below and remand to the trial court for resentencing, because
the trial court abused its discretion when it treated the mitigating factors as aggravating
factors to justify its sentence of life imprisonment without the possibility of parole.
The defendant, Ihab Masalmani, was 17 years old when he and 16-year-old Robert
Taylor committed the offense for which Masalmani was sentenced to life without parole
(LWOP). The two juveniles abducted a 21-year-old man in the parking lot of a fast-food
restaurant and took the victim to a vacant home, where Masalmani shot and killed him.
Masalmani was charged with multiple felonies, including first-degree felony
murder. 1 Masalmani was convicted, and the trial court imposed the then statutorily
mandated sentence of LWOP for the murder conviction. At Masalmani’s original
1
At the time of his crimes, Michigan law treated all 17-year-olds charged with crimes as
adults, regardless of their offense. See MCL 712A.1(1)(i), amended effective October 1,
2021, by 2019 PA 109.
2
sentencing proceeding the trial court did not consider (and, given the date of his
conviction and sentencing, could not have considered) whether Masalmani was one of the
“the rare juvenile offender[s] whose crime reflects irreparable corruption” such that his
LWOP sentence was constitutional under the Eighth Amendment. Miller v Alabama, 567
US 460, 479-480 (2012) (quotation marks and citations omitted).
Miller was decided while Masalmani’s appeal of right was pending. The Court of
Appeals affirmed Masalmani’s convictions but, in light of Miller’s prohibition on
mandatory LWOP sentences for juvenile (homicide) 2 offenders, the panel vacated his
murder sentence and remanded to the trial court for resentencing. People v Masalmani,
unpublished per curiam opinion of the Court of Appeals, issued March 19, 2013 (Docket
Nos. 301376 through 301378), p 7.
On remand, the trial court resentenced Masalmani pursuant to MCL 769.25, 3 our
state’s legislative response to Miller. The trial court heard expert and lay witness
testimony. The former included testimony on adolescent brain development—the same
science that the Supreme Court discussed in Miller to explain why juvenile offenders’
“transient rashness, proclivity for risk, and inability to assess consequences” reduces their
culpability and “diminish[es] the penological justifications for imposing the harshest
sentences . . . even when they commit terrible crimes.” Miller, 567 US at 472. The latter
included testimony about Masalmani’s behavior while incarcerated and his family
background and upbringing, including descriptions of the physical and sexual abuse he
experienced as a child.
At the conclusion of the hearing, the trial court again sentenced Masalmani to
LWOP. Addressing the “Miller factors” individually, 4 the trial court concluded that all of
2
See Graham v Florida, 560 US 48 (2010) (holding that the Eighth Amendment
prohibits the imposition of a LWOP sentence on a juvenile offender for a nonhomicide
offense).
3
Under MCL 769.25, a trial court must conduct a “Miller hearing” in any case in which
the prosecutor timely moves for a sentence of LWOP for a defendant who, while less
than 18 years of age, commits a crime the penalty for which is mandatory LWOP (but for
the defendant’s youthfulness). At that hearing, the trial court must “consider the factors
listed in [Miller] . . . and may consider any other criteria relevant to its decision,
including the individual’s record while incarcerated.” MCL 769.25(6). The court must
“specify on the record the aggravating and mitigating circumstances considered by the
court and the court’s reasons supporting the sentence imposed.” MCL 769.25(7).
4
As Miller explained, a sentencing scheme that mandates LWOP for juvenile offenders
violates the Eighth Amendment because such a scheme “mak[es] youth (and all that
accompanies it) irrelevant to imposition of that harshest prison sentence” and “poses too
great a risk of disproportionate punishment.” Miller, 567 US at 479. In so holding,
3
the factors save one (Masalmani’s family and home environment) weighed against a
term-of-years sentence and favored life without the possibility of parole. The Court of
Appeals affirmed the sentence, finding no error or abuse of discretion in the trial court’s
sentencing decision. People v Masalmani, unpublished per curiam opinion of the Court
of Appeals, issued September 22, 2016 (Docket No. 325662).
We issued our decision in Skinner while Masalmani’s application for leave to
appeal was pending in this Court. Skinner raised a constitutional challenge to the
sentencing process set forth in MCL 769.25; specifically, whether this process violates
the Sixth Amendment right to have (almost) any fact that increases a defendant’s
punishment beyond the prescribed statutory maximum submitted to a jury and proven
beyond a reasonable doubt. See Apprendi v New Jersey, 530 US 466 (2000). I thought
the answer was yes. That is, the “most natural reading [of MCL 769.25] requires a trial
court to make factual findings beyond those found by the jury before it can impose an
LWOP sentence on a juvenile,” because the statute requires a statement of aggravated
and mitigating circumstances considered by the sentencing court, as well as reasons
supporting the court’s sentencing decision, before the court may impose life
imprisonment without the possibility of parole. Skinner, 502 Mich at 152-153
(MCCORMACK, J., dissenting).
But my view did not prevail. This Court avoided the Sixth Amendment issue and
held that MCL 769.25 does not require a trial court to make any additional findings
(beyond the offender’s guilt) before sentencing a juvenile offender to LWOP. Skinner,
502 Mich at 117-119 (opinion of the Court). That is, there is no judicial fact-finding
problem, because there is no fact-finding requirement. The Court reasoned that such a
result is consistent with Miller (and Montgomery v Louisiana, 577 US ___; 136 S Ct 718
(2016)), 5 because those decisions do not impose a presumption against LWOP for
juvenile offenders. Skinner, 502 Mich at 131. Instead, the statute “merely requires” the
trial court to consider the Miller factors and explain its decision. Id. at 114-117; see
Miller outlined several mitigating factors unique to juvenile offenders that are given no
weight in a mandatory sentencing regime. These “Miller factors” include: “chronological
age and its hallmark features,” including “immaturity, impetuosity, and failure to
appreciate risks and consequences”; the juvenile’s family and home environment; the
circumstances of the offense, including susceptibility to familial and peer pressures; the
“incompetencies associated with youth,” including an inability to deal with police
officers, prosecutors, or defense counsel; and reduced culpability due to age and capacity
for change. Miller, 567 US at 477-478; see also Skinner, 502 Mich at 113 (stating that
“[MCL 769.25] requires the court to conduct a hearing to consider the Miller factors”).
5
Montgomery held that Miller’s prohibition on mandatory LWOP for juvenile offenders
is a substantive rule that must be applied retroactively to cases in which direct appellate
review ended before Miller was decided.
4
MCL 769.25(6) and (7). If this is done, the trial court’s sentencing decision will not be
disturbed on appeal absent an abuse of discretion. Skinner, 502 Mich at 131-137.
I remain unconvinced that this approach taken avoids constitutional infirmity. 6
But my disagreement with the Court’s constitutional holdings aside, a trial court’s
decision to sentence a juvenile offender to LWOP is subject to abuse-of-discretion
review. See Skinner, 502 Mich at 131-137. In my view the trial court abused its
discretion here.
“It is undisputed that all of [the Miller] factors are mitigating factors.” Skinner,
502 Mich at 115, citing Miller, 567 US at 489. But the trial court’s treatment of these
factors shows that the court did not treat them as mitigating. That is, the court did not
consider them for what they are—circumstances and features common to juvenile
offenders generally, consideration of which would lead to reasons not to impose the
maximum sentence allowed by our federal constitution. See note 4 of this statement. For
example, in weighing Masalmani’s “chronological age and its hallmark characteristics,”
Miller, 567 US at 477, the trial court concluded that “this factor favors imposing [a]
sentence of life without the possibility of parole.” (Emphasis added). This was not
simply unartful phrasing; that is, the court was not finding the absence of a general
feature of youth to conclude that Masalmani’s crime was not mitigated. Rather, the court
explained that had Masalmani been several months older at the time of his crime, he
would not have benefited from Miller’s prohibition on mandatory LWOP sentencing.
The court acknowledged that the scientific evidence presented at the Miller hearing
“established that the prefrontal cortex continues to develop into one’s mid-20s,” but
proceeded to disregard this evidence because “the Court is not free to take this
developmental disconnect into consideration when a criminal defendant is over 18.” This
was a clear abuse of discretion. Miller did not suggest that 18-year-olds are, as a class,
equipped with the decision-making faculties that 17-year-olds lack. Nor did Miller
suggest that a sentencer should disregard the expanding body of scientific knowledge on
6
As I explained, I think the majority’s approach “renders meaningless the individualized
sentencing required by Miller by allowing LWOP effectively to serve as the default
sentence as long as the prosecutor files [a] motion [seeking a sentence of LWOP].”
Skinner, 502 Mich at 148 (MCCORMACK, J., dissenting). A sentencing scheme that does
not begin with a presumption against LWOP for juvenile offenders violates the Eighth
Amendment, at least under current United States Supreme Court jurisprudence. Id. at
150. And reading the statute to require no fact-finding requirement at all before a LWOP
sentence may be imposed violates Miller and Montgomery. See id. at 145-148. The
Supreme Court may resolve these questions next term. See Jones v State, 285 So 3d 626
(Miss Ct App, 2017), cert gtd 250 So 3d 1269 (Miss, 2018), cert dis by unpublished order
of the Mississippi Supreme Court, entered November 27, 2018 (Docket No. 2015-CT-
00899-SCT), cert gtd ___ US ___; 140 S Ct 1293 (2020).
5
adolescent brain development merely because an older offender who, although
developmentally similar, may be subject to mandatory LWOP sentencing. To the extent
Miller drew a bright line at the legal age of majority, the Court was not suggesting that
the adolescent development period ends at the age of 18. See Roper v Simmons, 543 US
551, 574 (2005) (“Drawing the line at 18 years of age is subject, of course, to the
objections always raised against categorical rules. The qualities that distinguish juveniles
from adults do not disappear when an individual turns 18.”) (emphasis added). The
testimony in this case, which the trial court appeared to accept, suggested that 18-year-
old offenders too should not be sentenced as adults, for the reasons explained in Miller.
That is, while the law does not require that categorically, the facts might well in most
cases. The court’s treatment of this factor invoked the scientific evidence for the precise
opposite of what it showed. In doing so, the court upended Miller’s foundational
principle—that the “imposition of a State’s most severe penalties on juvenile offenders
cannot proceed as though they were not children.” Miller, 567 US at 474. 7
The trial court’s treatment of the other Miller factors (with the exception of
Masalmani’s family and home environment, which the court acknowledged was
mitigating) did not rehabilitate the court’s sentencing decision. The court’s evaluation of
the “incompetencies associated with youth,” Miller, 567 US at 477, is short enough to
quote in full: “[T]here was no evidence that the incapacities of youth caused defendant to
be unable to participate in his defense. Nor is there any evidence that he implicated
himself due to youthful incapacities. As such, this factor favors sentencing defendant to
[LWOP].” Here again, I believe the trial court treated as aggravating circumstances
factors that are exclusively mitigating (or, at most, neutral). Miller did not suggest that a
juvenile offender is more deserving of LWOP if the offender is better able to participate
in their defense; Miller discussed this factor in explaining how features of our criminal
system may lead to disproportionate outcomes between juveniles and adults. See Miller,
567 US at 477-478 (explaining that a juvenile offender “might have been charged and
convicted of a lesser offense if not for incompetencies associated with youth—for
7
The trial court provided similar reasoning when it resentenced codefendant Taylor.
Like Masalmani, Taylor was convicted of first-degree felony murder (in a separate trial),
received resentencing relief under Miller in his appeal of right, and was resentenced to
LWOP. Addressing this factor in Taylor’s case, the trial court stated:
Defendant [Taylor] was a mere 14 months shy of his 18th birthday at the
time of his offense, suggesting that this developmental disconnect between
his prefrontal cortex and his limbic system was not much more pronounced
than that of an 18 year old. In short, while this factor does not weigh as
heavily against [Taylor] as it did against [Masalmani], the Court is not
convinced that this factor mitigates against a sentence of life without the
possibility of parole.
6
example, his inability to deal with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attorneys”).
Most troublesome is the trial court’s treatment of Masalmani’s potential for
rehabilitation. See Miller, 567 US at 478 (stating that mandatory LWOP “disregards the
possibility of rehabilitation even when the circumstances most suggest it”). After
acknowledging that Masalmani’s troubled upbringing was a mitigating consideration, the
court cited this same upbringing to conclude that Masalmani’s potential for rehabilitation
was “minimal.” In so finding, the court did not assert that Masalmani was “irreparably
corrupt,” but that his rehabilitation would require the type of professional treatment that
“he is very unlikely to receive in prison.” In other words, the trial court cited the state’s
inability to provide Masalmani with rehabilitative treatment—a fact completely out of
Masalmani’s control—as a justification for his lifelong incarceration. The trial court did
not evaluate Masalmani’s potential for rehabilitation but rather the state’s inability to
facilitate such rehabilitation. 8
The “circumstances of the homicide offense,” Miller, 567 US at 477, weighed
heavily in the trial court’s decision to impose LWOP, and there is no doubt that
Masalmani’s crime was vicious. But the individualized inquiry that Miller demands, and
the sentencing decision that results from it, will always and only occur where a juvenile
stands convicted of a homicide. See Graham v Florida, 560 US 48 (2010). Our review
of the trial court’s work must, therefore, always go beyond the trial court’s evaluation of
this factor. As the Supreme Court explained in Miller, “[t]hat Miller deserved severe
punishment for killing [his victim] is beyond question. But once again, a sentencer
needed to examine all these circumstances before concluding that life without any
possibility of parole was the appropriate penalty.” Id. at 479.
Concluding there was no abuse of discretion in this case underscores my concern
that our decision in Skinner allows for LWOP sentences that violate the Eighth
Amendment. Skinner, 502 Mich at 148 (MCCORMACK, J., dissenting) (“I cannot see how
Miller’s dictates are satisfied by the hollow formality to which the majority’s holding
would reduce the hearing mandated by MCL 769.25(6).”). Abuse of discretion is a
8
Or rather, the court’s perception of the state’s inability. The trial court did not identify
any evidence in the record to support its suspicion that Masalmani would be “very
unlikely” to receive rehabilitative services while incarcerated. And evaluating the
potential for rehabilitative services in our prison system in the decades to come—time
that Masalmani would remain incarcerated had the court declined to impose LWOP—is,
at most, an exercise in educated guesswork.
7
deferential standard. But even so, the trial court’s sentencing decision must be a
reasonable and principled outcome based on “case-specific detailed factual
circumstances.” Skinner, 502 Mich at 134 (opinion of the Court) (quotation marks and
citations omitted). That did not occur here.
For these reasons, I respectfully dissent.
BERNSTEIN and CAVANAGH, JJ., join the statement of MCCORMACK, C.J.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 29, 2020
t0526
Clerk