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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 5, 2023
Plaintiff-Appellee,
V No. 335862
Kent Circuit Court
DEMARIOL DONTAYE BOYKIN, LC No. 03-004460-FC
Defendant-Appellant.
Before: MARKEY, P.J., and SHAPIRO and GADOLA, JJ.
ON REMAND
PER CURIAM.
This case returns to this Court on remand from our Supreme Court for determination
whether the trial court properly considered defendant’s youth as a mitigating factor when
sentencing defendant to 40 to 60 years’ imprisonment for his conviction of first-degree murder,
MCL 750.316(1). We determine that the trial court considered defendant’s youth when
resentencing defendant, but that it then concluded that defendant’s youth did not serve to mitigate
the enormity of his actions in murdering a fellow teen. Because the trial court considered whether
defendant’s age was a mitigating factor, but did not consider defendant’s age as a mitigating factor,
we vacate defendant’s sentence and remand to the trial court for resentencing.1
I. FACTS
In 2003, when defendant was 17 years old, he shot and killed Shawn Broyles, who was 18
years old. This Court previously summarized the facts of this case as follows:
1
We recognize the hair-splitting involved in this distinction, but conclude that our Supreme
Court’s decision in People v Boykin, 510 Mich 171, 178; 987 NW2d 58 (2022) (Boykin III)
mandates that distinction, which in turn necessitates yet another remand in this case.
The victim, Shawn Broyles, and defendant’s brother Marvin were engaged in a fist-
fight. Broyles’ two friends were present, but did not think the fight was serious
enough to merit their involvement. Defendant, his father, and defendant’s brother
Charles were present. Neither defendant’s father nor Charles thought the fight was
serious enough to merit their intervention either. At no time did Broyles attack or
threaten to attack defendant. In fact, Broyles had already begun running from the
scene of the altercation when defendant started shooting at him.
Second, defendant had time in which to consider his actions. Broyles pleaded with
defendant to “Come on, stop,” presumably after he saw the gun in defendant’s hand.
Defendant, however, did not stop. Broyles turned and ran from defendant.
Defendant raised his gun and fired three to four shots at Broyles. Broyles fell after
being shot twice. One witness testified that defendant lifted Broyles up by his
jacket hood, put the gun to his cheek, and pulled the trigger, but the gun did not
fire. The gun, found by Broyles’ cousin, was determined to be jammed. After
attempting to shoot Broyles again, defendant and his two brothers kicked Broyles
as he lay dying on the sidewalk. Defendant’s brother Marvin testified that
defendant said he shot Broyles because Broyles had jumped him a few years before.
[People v Boykin, unpublished opinion per curiam of the Court of Appeals, issued
July 14, 2005 (Docket No 253224) (Boykin I).]
Defendant was convicted after a jury trial of first-degree murder, MCL 750.316(1),
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and,
although he was only 17 years old at the time of the murder, he already was a fourth-offense
habitual offender and therefore also was convicted under MCL 769.12. He was sentenced to
mandatory life imprisonment without possibility of parole for the murder conviction, and to two
years’ imprisonment for the felony firearm conviction. This Court affirmed defendant’s
convictions. Boykin I, unpub op at 1-2. Defendant thereafter pursued a number of post-conviction
measures to overturn his convictions and sentence.
In 2016, a writ of habeas corpus was issued for defendant’s resentencing pursuant to Miller
v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), which held that imposing upon
a juvenile a mandatory sentence of life imprisonment without the possibility of parole was
unconstitutional, and Montgomery v Louisiana, 577 US 190; 136 S Ct 718; 193 L Ed 2d 599
(2016), which applied Miller retroactively. Because defendant received a mandatory life sentence
without possibility of parole for his first-degree murder conviction, defendant was entitled to
resentencing under Miller and Montgomery, as well as under Michigan’s legislative response to
Miller, MCL 769.25 and MCL 769.25a.
At resentencing, the prosecutor did not seek a life sentence for defendant, but instead
suggested a sentence of 40 to 60 years for defendant’s first-degree murder conviction. The trial
court agreed, sentencing defendant to 40 to 60 years’ imprisonment. During the resentencing
hearing, the trial court stated that in resentencing defendant it considered the factors articulated in
Miller, including defendant’s age, maturity, and impetuosity.
Defendant appealed to this Court, contending that the trial court did not properly apply the
factors discussed in Miller when resentencing him, and that his sentence did not comply with the
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constitutional mandate that juveniles be treated differently from adults when sentenced. We
disagreed and affirmed the order of the trial court, reasoning in relevant part:
In Miller, the United States Supreme Court held that mandatory, life-without-parole
sentences for juvenile offenders were unconstitutional because the youthfulness of
the offender was not considered, resulting in the risk of disproportionate
punishment. Miller, 567 US at 465, 479. In Miller, “[t]he Court emphasized that
the unique characteristics of youth warranted treating juveniles differently from
adults for purposes of sentencing.” Hyatt, 316 Mich App at 379. The Miller Court
outlined three gaps that exist between juveniles and adults:
First, children have a lack of maturity and an underdeveloped sense
of responsibility, leading to recklessness, impulsivity, and heedless
risk-taking. Second, children are more vulnerable . . . to negative
influences and outside pressures, including from their family and
peers; they have limited contro[l] over their own environment and
lack the ability to extricate themselves from horrific, crime-
producing settings. And third, a child’s character is not as well
formed as an adult’s; his traits are less fixed and his actions less
likely to be evidence of irretrievabl[e] deprav[ity]. [Miller, 567 US
at 471 (quotation marks and citations omitted).]
In response to Miller, Michigan enacted 2014 PA 22, which, in relevant part, added
MCL 769.25. Hyatt, 316 Mich App at 384. Under this statute, if upon resentencing
the prosecutor declines to move for the reinstatement of a defendant’s sentence of
life without parole, . . . then the defendant must be sentenced to “a term of
imprisonment for which the maximum term shall be not less than 60 years and the
minimum term shall not be less than 25 years or more than 40 years.” See MCL
769.25(4) and (9).
In this case, the prosecutor did not move for the reinstatement of defendant’s prior
life-without-parole sentence. At the resentencing hearing, the trial court stated that
it was aware of Miller and that it was considering all of the Miller factors, including,
but not limited to, age, maturity, impetuosity, family history, and home
environment. The trial court thereafter sentenced defendant to a term of years, . . . .
See MCL 769.25(4) and (9).
Defendant argues that the trial court failed to properly consider the directive of
Miller that juveniles should be considered differently during sentencing. The
decision in Miller, however, applies only to juveniles sentenced to life without
parole. Miller, 567 US at 465. Here, the trial court did not sentence defendant to
life without parole, but instead sentenced defendant to a term of years in compliance
with MCL 769.25. The trial court, therefore, was not compelled to consider the
Miller factors.
Moreover, because defendant’s sentence of 40 to 60 years’ imprisonment was
within the statutorily mandated range requiring 25 to 40 years for the minimum
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term and 60 years for the maximum term, the sentence is presumptively
proportionate. See People v Williams, 189 Mich App 400, 404; 473 NW2d 727
(1991) (holding that a legislatively mandated sentence is presumptively
proportionate and valid). Considering the totality of the circumstances, defendant’s
sentence was proportionate to the seriousness of the offense—first-degree
murder—and the offender, who was almost 18 years old at the time of the crime
and who acted with extreme brutality by executing another teenager with virtually
no provocation. We conclude that the trial court did not abuse its discretion in
imposing a sentence of 40 to 60 years’ imprisonment for defendant’s conviction of
first-degree murder. [People v Boykin, unpublished opinion per curiam of the Court
of Appeals, issued March 20, 2018 (Docket No 335862), p 3-4 (footnote omitted)
(Boykin II).]
This Court observed that although it was not mandatory that the trial court consider the
factors discussed in Miller when resentencing defendant to a term of years, nonetheless
[t]he trial court stated that it was considering all the Miller factors and specifically
mentioned its consideration of defendant’s psychological evaluations, defendant’s
childhood, and his misconducts while in prison involving intoxicating substances
and weapons. Evaluating these factors, the trial court determined that defendant’s
youth and immaturity were not an excuse for his conduct, and that “[t]here was
nothing to suggest here anything other than this was a cold, calculated,
premeditated killing of an innocent human being who represented no threat to
[defendant].” [Boykin II, unpub op at 4 n 2.]
After granting defendant leave to appeal, our Supreme Court held that a trial court must
consider a juvenile defendant’s youth as a mitigating factor when imposing a term-of-years
sentence under MCL 769.25 or MCL 769.25a. People v Boykin, 510 Mich 171, 178; 987 NW2d
58 (2022) (Boykin III). The Supreme Court vacated the judgment of this Court to the extent that
it addressed sentencing issues and remanded to this Court to determine whether the trial court
considered defendant’s youth as a mitigating factor when sentencing defendant. Id. at 178, 194.
II. DISCUSSION
In response to Miller, our Legislature enacted MCL 769.25 and MCL 769.25a, pursuant to
which defendant in this case was resentenced to a term of years. In Boykin III, our Supreme Court
held that in all sentencing hearings conducted under MCL 769.25 or MCL 769.25a, the sentencing
court must consider the defendant’s youth “and must treat it as a mitigating factor” (emphasis
added). Boykin III, 510 Mich at 189. In this case, our Supreme Court directed that we consider
on remand the question “whether the trial court properly considered youth to be a mitigating factor
when defendant was sentenced.” Id. at 194.
A. STANDARD OF REVIEW
This Court reviews the sentencing decisions of a trial court for an abuse of discretion.
Boykin III, 510 Mich at 182, citing People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327
(2017). A trial court abuses its discretion if it imposes a sentence that violates the principle of
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proportionality, which requires that the sentence imposed “be proportionate to the seriousness of
the circumstances surrounding the offense and the offender.” People v Skinner, 502 Mich 89, 131-
132; 917 NW2d 292 (2018) (quotation marks and citation omitted). “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.” Boykin III, 510 Mich at 182, citing People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
B. BOYKIN III
In Miller, the United States Supreme Court held that a mandatory sentence of life
imprisonment without the possibility of parole for juvenile offenders constitutes cruel and unusual
punishment. The Supreme Court did not “foreclose a sentencer’s ability to make that judgment in
homicide cases,” but required the sentencing court “to take into account how children are different,
and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”
Miller, 567 US at 480.
In response to Miller, our Legislature enacted MCL 769.25 and MCL 769.25a. MCL
769.25 applies to a criminal defendant who was less than 18 years old at the time the defendant
committed an offense described in subsection (2) of that statute, and who was convicted of the
offense on or after the effective date of the amendatory act or whose appeals were still pending.
MCL 769.25(1). The statute requires the prosecutor to file a motion if the prosecutor seeks a life-
without-parole sentence on resentencing. MCL 769.25(3) – (6). If the prosecutor does not seek a
life-without parole sentence, the trial court is required to impose a maximum sentence of no more
than 60 years and a minimum sentence of “not less than 25 years or more than 40 years.” MCL
769.25(9). In this case, the prosecutor did not request a life-without-parole sentence, and the trial
court imposed a term-of-years sentence in accordance with MCL 769.25(9).
If the prosecutor requests a life-without-parole sentence, at the hearing on the prosecutor’s
motion, “the trial court shall consider the factors listed in Miller v Alabama, . . . and may consider
any other criteria relevant to its decision, including the individual’s record while incarcerated.”
MCL 769.25(6). “[T]he court shall 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).
In Boykin III, our Supreme Court established the analysis a court must undertake when
imposing a term-of-years sentence for a juvenile offender under MCL 769.25, stating:
Where the Legislature has assigned a range of sentencing outcomes for any given
conviction, the trial court has authority to sentence a defendant within that range.
Within that range, the sentence should be tailored to the particular circumstances
of the case and offender. . . . It is the trial court’s duty to exercise discretion in a
way that ensures the individualized sentence conforms with the principle of
proportionality. . . . 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. . . . However, these
are not the only relevant sentencing criteria and trial courts are not required to
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consider each of these factors when imposing a sentence. [Boykin III, 510 Mich at
183 (citations omitted).]
The Boykin III Court also specifically held that “in all sentencing hearings conducted under MCL
769.25 or MCL 769.25a, trial courts are to consider the defendant’s youth and must treat it as a
mitigating factor.” Boykin III, 510 Mich at 189. However, “this consideration need not be
articulated on the record. . . . In other words, there is no authority that imposes a higher standard
of articulation regarding youth beyond our general requirement that a trial court must adequately
explain its sentence on the record in order to facilitate appellate review.” Id. at 193-194.
In this case, we are tasked on remand with determining whether the trial court properly
considered defendant’s youth as a mitigating factor when sentencing defendant to 40 to 60 years’
imprisonment for the first-degree murder of Shawn Broyles.2 In doing so, we are mindful that our
standard of review dictates that we not disturb the trial court’s decision absent an abuse of the trial
court’s discretion. Boykin III, 510 Mich at 182. Our review of the record in this case leads us
again to conclude that the trial court did, in fact, consider defendant’s youth when sentencing
defendant. The trial court stated on the record that it had considered the Miller factors, including
but not limited to defendant’s age, maturity, impetuosity, family history, and home environment,
when sentencing defendant. See Boykin II, unpub op at 3-4, 4 n 2, 5 n 6.
We cannot say with confidence, however, that the trial court considered defendant’s age of
17 as mitigating defendant’s actions in killing 18-year-old Shawn Broyles. To “mitigate” is “to
cause to become less harsh or hostile” or “to make less severe or painful,” Merriam-Webster’s
Collegiate Dictionary (11th ed). A “mitigating factor” as used in the context of the law generally
refers to a circumstance that “make[s] a bad action easier to understand and excuse, and may result
in the person responsible being punished less severely.” Collins English Dictionary (online ed.)
Collinsdictionary.com/us/dictionary/English/mitigating-factor (accessed August 15, 2023).
In this case, the trial court’s statements during defendant’s resentencing indicate that the
trial court did not find that defendant’s age made defendant’s murder of Broyles less harsh, hostile,
severe, or painful, nor did it make defendant’s actions easier to understand or excuse. The trial
court’s discussion on the record suggests that the trial court did not find defendant’s age a factor
mitigating the seriousness of defendant’s actions. The trial court observed that defendant was only
80 days younger than the cutoff age of 18, and gave weight to defendant’s conduct in escalating
the incident from a fistfight between two persons to a three-against-one assault with a firearm, his
attempt to fire the gun while holding it directly into Broyles’s face, and his acts of kicking and
stomping on Broyles after the gun would not discharge while Broyles was helpless and lying
wounded on the ground. The trial court noted that Broyles was unarmed, that he posed no threat
to defendant or his brothers, and that defendant’s only apparent motive for the killing was to
avenge his brother’s honor in relation to a debt. The trial court also observed that defendant
2
Because our Supreme Court has concluded that the trial court is required to consider a defendant’s
youth as a mitigating factor but need not articulate that consideration on the record, we are left to
wonder how a reviewing court is to assess accurately whether a sentencing court considered youth
as a mitigating factor. See Boykin III, 510 Mich at 178 (“no basis for requiring trial courts to
articulate on the record how a defendant’s youth affected the [sentencing] decision” exists).
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reported a happy childhood with a family that was close and supportive. He was an average student
who left school while in the 10th grade; he was never employed in legal employment, however,
became involved in selling illegal drugs, and his mother urged him to leave their home in Chicago
and live with his father in Michigan as a way to find a different environment. The trial court
concluded that defendant’s positive upbringing suggested that he willfully chose to engage in
escalating criminal activity rather than being the product of a brutal upbringing from which he
could not extricate himself.
Our reading of Boykin III, however, indicates that it was not adequate for the trial court to
consider whether defendant’s youth was a mitigating factor; rather, Boykin III directs that the trial
court must consider a juvenile’s age as a mitigating factor. See Boykin III, 510 Mich at 189 (“We
thus hold . . . that in all sentencing hearings conducted under MCL 769.25 or MCL 769.25a, trial
courts are to consider the defendant’s youth and must treat it as a mitigating factor”). In this case,
although the trial court considered defendant’s age when resentencing him and considered whether
defendant’s age was a mitigating factor, the trial court did not consider that defendant’s age is a
mitigating factor; rather, the trial court found defendant’s age insufficient to mitigate his actions
in murdering another teen without provocation. Because “trial courts are to consider the
defendant’s youth and must treat it as a mitigating factor,” Boykin III, 510 Mich at 189 (emphasis
added), we are compelled to conclude that the trial court abused its discretion when sentencing
defendant.
Defendant’s sentence is vacated and this matter is remanded to the trial court for
resentencing. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola
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