Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 17, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant/
Cross-Appellee,
v No. 121564
GREGORY PETTY,
Defendant-Appellee/
Cross-Appellant.
___________________________________
BEFORE THE ENTIRE COURT
CAVANAGH, J.
A jury convicted defendant of first-degree felony murder,
armed robbery, and possession of a firearm during the
commission of a felony. Because defendant was a juvenile at
the time of the offenses, the trial judge held a dispositional
hearing, as required by MCL 712A.18(1)(n), which was combined
with defendant’s sentencing hearing. The judge sentenced
defendant as an adult to a mandatory term of life imprisonment
for the felony-murder conviction. Defendant appealed,
claiming that the trial judge failed to explicitly consider
each factor articulated in MCL 712A.18(1)(n), as indicated in
People v Thenghkam, 240 Mich App 29; 610 NW2d 571 (2000)
(construing the “automatic waiver” statute, MCL 769.1[3],
which mandates an inquiry nearly identical to MCL
712A.18[1][n]). Defendant also argues that he was denied the
right to allocute before the imposition of his sentence. The
Court of Appeals affirmed the convictions, but remanded for
correction of the judgment of sentence and for resentencing.
In response to the prosecutor’s appeal, we reject the approach
utilized by Thenghkam, vacate relevant portions of the Court
of Appeals decision, and remand to the trial court for
resentencing in accord with this opinion.
I. Facts and Proceedings
At the age of fifteen, defendant Gregory Petty encouraged
his twelve-year-old companion to commit armed robbery. In the
course of the robbery, the twelve-year-old child shot and
killed the victim, Calvin Whitlow. In a statement to the
police, the younger companion indicated that defendant gave
him the gun. When asked why he shot the victim, the twelve
2
year-old stated, “Greg threatened to kill me if I didn’t.”1
As permitted by MCL 712A.2d, defendant’s case was
designated for trial in the family division as an adult
criminal proceeding. The jury found defendant guilty of
felony murder, armed robbery, and felony-firearm.
Following a combined dispositional and sentencing
hearing,2 the court imposed an adult sentence, one of three
options available to the court under MCL 712A.18(1)(n).
Defendant received a mandatory sentence of life imprisonment
for the felony-murder conviction, MCL 750.316(1)(b), and a
consecutive two-year term for the felony-firearm conviction,
MCL 750.227b.
Before imposing the sentence, the trial judge articulated
his rationale in the following statement:
The thought of sentencing anyone to life in
prison without chance of parole takes your breath
away. But after you catch your breath it’s very
clear that we have guidelines. They’re called
laws. And we’re required to follow the law. To
that extent, this Court’s responsibility, this
Court’s duty is to interpret not only the
conviction of first degree murder; not only the
conviction for armed robbery; not only the
conviction for felony firearm, but to look at how a
sentence as an adult versus disposition as a
juvenile will impact the community.
1
Defendant’s twelve-year-old companion, the actual
shooter, accepted an offer to plead guilty of second-degree
murder and received a delayed sentence.
2
The court exercised its discretion and combined the
dispositional and sentencing hearings into one proceeding.
3
The Court has had a chance to hear quite
eloquently from the family of the victim. They
have been consistant [sic] in their appearances
before the Court throughout this lengthy process.
I don’t believe there’s any question, in fact it’s
not controverted, the jury found [defendant] guilty
of first degree murder. There is no more serious
crime. The jury also found that even though he was
not the actual person who fired the weapon that
resulted in the death of Mr. Whitlow, . . . he was
responsible for that.
The record of [defendant], the juvenile
record, certainly reflects a number of contacts. I
was a little surprised at some of the testimony
offered this morning.
I talked about the law a few moments ago. The
law dictates whether people are innocent or guilty
upon the presentation of evidence and a ruling
either by a Court or by a judge or by a jury. To
read a report that says there was a dismissal or
there was–there’s insufficient evidence does not
begin to tell the whole story. What I have though
based on that information that’s in the file, based
on these reports is there has been consistant [sic]
contact with this Court that has resulted in not
one, but now two convictions. One for carrying a
concealed weapon and now this one, which
includes–actually three convictions for various
felonies including murder one.
[Counsel for defendant] argued that there is
sufficient juvenile programming available to assist
[defendant]. I don’t really think that’s
controverted. The question is did the witnesses
come forward with ambiguous recommendations
about–Judge, I think that he ought to be in a
juvenile system, but I think he probably needs to
be their [sic] longer than the law allows. That is
the crux isn’t it? It’s what [the] law will allow.
And if you’re saying that he needs to be in there
longer than what [the] law will allow for a
juvenile then you are saying to this Court that the
only option we have available is the adult
sentence. He’s not been successful in the
programming requirements relative to this matter.
4
At the hearing involving Mr. Moore, the Court
talked about penalizing the mother if the law would
allow. Now perhaps that was a little unfair. The
mother, the father, family, school, court, you name
it, I think that there’s plenty of blame to go
around. But the reality is that when you get
finished assessing blame it still gets us back to
what [the] law demands. If the juvenile
disposition will not be sufficient then from where
I sit there is no alternative. As such I will
sentence [defendant] as an adult. The law requires
a mandatory life sentence without parole. That’s
all.
On appeal, defendant alleged several errors, including a
violation of MCL 712A.18(1)(n), which mandates consideration
of the enumerated criteria, and a violation of his right to
allocute before sentencing. The Court of Appeals affirmed,
but remanded for resentencing in light of the court’s failure
to specifically articulate factual findings regarding each
criterion listed in §§ 18(1)(n)(i)-(vi) and its failure to
provide defendant with an opportunity to allocute.3 We
granted the prosecutor’s application for leave to appeal. 467
Mich 896 (2002).
II. Standard of Review
Because we must clarify the proper interpretation of MCL
712A.18(1)(n), this issue of law is subject to review de novo.
In re MCI, 460 Mich 396, 413; 596 NW2d 164 (1999).
Further, we review de novo the scope and applicability of
3
Unpublished opinion per curiam, issued April 26, 2002
(Docket No. 219348).
5
the common-law right to allocute, also a question of law.
People v Petit, 466 Mich 624, 627; 648 NW2d 193 (2002).
III. The Dispositional and Sentencing Inquiry
Following a judgment of conviction in a designated case,
MCL 712A.18(1)(n) provides a judge with the option of imposing
either a juvenile disposition, an adult sentence, or a blended
sentence, i.e., a delayed sentence pending defendant’s
performance under the terms provided by a juvenile
disposition. To understand the appropriate method of inquiry
a judge is required to undertake, we must examine the statute,
MCL 712A.18(1)(n), to determine the Legislature’s intent.
The first step in discerning legislative intent requires
review of the statutory text adopted by the Legislature.
House Speaker v State Administrative Bd, 441 Mich 547, 567;
495 NW2d 539 (1993). If unambiguous, the Legislature will be
presumed to have intended the meaning expressed. Lorencz v
Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). Should
reasonable minds differ with respect to a statute’s meaning,
judicial construction is appropriate. Sam v Balardo, 411 Mich
405, 418-419 n 9; 308 NW2d 142 (1981).
MCL 712A.18 provides in part:
(1) [I]f the court finds that a juvenile is
within this chapter [i.e., subject to the juvenile
code], the court may enter any of the following
orders of disposition that are appropriate for the
welfare of the juvenile and society in view of the
facts proven and ascertained:
6
* * *
(n) If the court entered a judgment of
conviction under section 2d[4] of this chapter, enter
any disposition under this section or, if the court
determines that the best interests of the public
would be served, impose any sentence upon the
juvenile that could be imposed upon an adult
convicted of the offense for which the juvenile was
convicted. If the juvenile is convicted of a
violation or conspiracy to commit a violation of .
. . MCL 333.7403,[5] the court may impose the
alternative sentence permitted under that section
if the court determines that the best interests of
the public would be served. The court may delay
imposing a sentence of imprisonment under this
subdivision for a period not longer than the period
during which the court has jurisdiction over the
juvenile under this chapter by entering an order of
disposition delaying imposition of sentence and
placing the juvenile on probation upon the terms
and conditions it considers appropriate, including
any disposition under this section. If the court
delays imposing sentence under this section,
section 18i of this chapter applies. If the court
imposes sentence, it shall enter a judgment of
sentence. If the court imposes a sentence of
imprisonment, the juvenile shall receive credit
against the sentence for time served before
sentencing. . . .
The discretionary authority to choose among three
alternatives is plainly stated in this portion of the statute;
the court may “enter any [juvenile] disposition,” “impose any
sentence . . . that could be imposed upon an adult,” or “delay
imposing a sentence of imprisonment . . . by entering an order
4
MCL 712A.2d prescribes the conditions under which a
juvenile may be tried as an adult.
5
MCL 333.7403 proscribes the possession of controlled
substances.
7
of disposition delaying imposition of sentence and placing the
juvenile on probation upon the terms and conditions it
considers appropriate . . . . ” Id.
To facilitate the appropriate inquiry when choosing among
the three sentencing options, the Legislature has prescribed
the relevant considerations in the remaining portion of the
statute:
In determining whether to enter an order of
disposition or impose a sentence under this
subdivision, the court shall consider all of the
following factors, giving greater weight to the
seriousness of the offense and the juvenile's prior
record:
(i) The seriousness of the offense in terms
of community protection, including, but not limited
to, the existence of any aggravating factors
recognized by the sentencing guidelines, the use of
a firearm or other dangerous weapon, and the impact
on any victim.
(ii) The juvenile's culpability in committing
the offense, including, but not limited to, the
level of the juvenile's participation in planning
and carrying out the offense and the existence of
any aggravating or mitigating factors recognized by
the sentencing guidelines.
(iii) The juvenile's prior record of
delinquency including, but not limited to, any
record of detention, any police record, any school
record, or any other evidence indicating prior
delinquent behavior.
(iv) The juvenile's programming history,
including, but not limited to, the juvenile's past
willingness to participate meaningfully in
available programming.
(v) The adequacy of the punishment or
programming available in the juvenile justice
8
system.
(vi) The dispositional options available for
the juvenile. [MCL 712A.18(1)(n).]
The Court of Appeals has addressed the degree of analysis
required by the nearly identical inquiry prescribed by MCL
769.1(3) and concluded that specific findings must be
articulated with regard to each criterion enumerated in the
statute. Thenghkam at 41. Reviewing for clear error, the
Court of Appeals evaluated the trial court’s ability to “sort
the logical, reasonable, and believable evidence” from the
irrelevant information. Id. at 67. Next, according to the
Court of Appeals, the trial judge must “consider and balance
all the factors to decide whether to sentence a defendant as
a juvenile or adult.” Id. This consideration is subject to
review for an abuse of discretion. Id. at 42. To justify
this detailed approach, the Court explained:
[A]s with all judicial decisions that do not
rest solely on the law, a trial court deciding
whether to sentence a defendant as an adult or a
juvenile must point to the requisite facts to
justify its decision. Consequently, and aside from
the question of clear error, if the trial court
fails to make findings of fact, it cannot fully
exercise its discretion by giving proper weight to
the various factors it must consider to make its
decision under the sentencing statute. [Id. at 48
(citations omitted).]
While we agree with the Thenghkam Court that decisions
concerning a juvenile’s future require the most thoughtful and
reasoned solicitude—whether the family division must
9
automatically waive the juvenile into the circuit court’s
jurisdiction, MCL 769.1(3), or try the juvenile as an adult in
a “designated proceeding,” MCL 712A.18(1)(n)—we find the focus
of the Court of Appeals analysis misplaced. Instead of
concentrating primarily on the sufficiency of the trial
court’s factual determinations vis-à-vis the criteria listed
in MCL 712A.18(1)(n)(i)-(vi), a plain reading of the statute
requires that a court deliberately consider whether to enter
an order of disposition, impose a delayed sentence, or impose
an adult sentence in light of the six factors enumerated in
subsection 1(n)(i)-(vi). As evidence that it complied with
the statute, the trial court, on the record, must acknowledge
its discretion to choose among the three alternatives. Hence,
a court should consider the enunciated factors, MCL
712A.18(1)(n)(i) through (vi), to assist it in choosing one
option over the others. A trial court need not engage in a
lengthy “laundry list” recitation of the factors. Rather, the
focus of the hearing should be on the three options, i.e., an
adult sentence, a blended sentence, or a juvenile disposition,
as outlined in the recently adopted court rules.6 For this
reason, we repudiate the Court’s reasoning in Thenghkam to the
extent it conflicts with this explicit three-part inquiry.
6
See MCR 3.955 specifically addressing these three
options.
10
As a result, trial courts will no longer be forced to
undertake a mechanical recitation of the statutory criteria.
Rather, a court must logically articulate on the record why it
has chosen one alternative over the other two, in light of the
criteria articulated in MCL 712A.18(1)(n). By so doing, a
court performs the analysis required by the Legislature, while
establishing an adequate record to permit appellate review.
In this case, the trial court offered a considered
rationale for its decision to sentence the defendant as an
adult. The court reasoned, in part:
[Counsel for defendant] argued that there is
sufficient juvenile programming available to assist
[defendant]. I don’t really think that’s
controverted. The question is did the witnesses
come forward with ambiguous recommendations
about–Judge, I think that he ought to be in a
juvenile system, but I think he probably needs to
be their [sic] longer than the law allows. That is
the crux isn’t it? It’s what the law will allow.
And if you’re saying that he needs to be in there
longer than what the law will allow for a juvenile
then you are saying to this Court that the only
option we have available is the adult sentence.
. . .
If the juvenile disposition will not be
sufficient then from where I sit there is no
alternative. As such I will sentence [defendant]
as an adult. The law requires a mandatory life
sentence without parole. That’s all. [Emphasis
added.]
From this record, it is clear that the trial court was
aware of its options to impose a juvenile disposition or an
adult sentence. What is not clear is whether the trial court
11
considered and rejected its option to impose a delayed
sentence once it determined that the juvenile system was
inadequate. Therefore, because we cannot be certain that the
trial court was aware of its discretion to impose a delayed
sentence, we remand this case for a rearticulation of its
analysis. On the basis of the evidence presented at the
hearing, the court shall acknowledge its discretion to choose
among the three options, articulating on the record its
rationale for selecting among the alternatives provided by our
Legislature, and in consideration of the factors prescribed by
MCL 712A.18(1)(n).
IV. Juvenile-Allocution Requirements
Defendant also claims he was denied the opportunity to
allocute.7 As noted above, a juvenile defendant subject to
MCL 712A.18(1)(n), having been tried as an adult, may receive
a juvenile disposition, an adult sentence, or a blended
sentence. A sentencing court’s duty to provide a
defendant with the opportunity to allocute has been long
established:
7
According to Blacks Law Dictionary, 7th ed, “allocute”
means “[t]o deliver in court a formal, exhortatory address; to
make an allocution.” “Allocution” generally refers to “[a]n
unsworn statement from a convicted defendant to the sentencing
judge or jury in which the defendant can ask for mercy,
explain his or her conduct, apologize for the crime, or say
anything else in an effort to lessen the impending sentence.”
Id.
12
(2) . . . At sentencing the court, complying
on the record, must:
* * *
(c) give the defendant, the defendant's
lawyer, the prosecutor, and the victim an
opportunity to advise the court of any
circumstances they believe the court should
consider in imposing sentence[.] [MCR 6.425(D).]
This directive permits a defendant to speak in mitigation
of the sentence. When interpreting an analogous federal rule,
the United States Supreme Court underscored the value of this
opportunity:
[The] legal provenance [of the federal rule
providing defendants with an opportunity to speak
to the court on their own behalf] was the
common-law right of allocution. As early as 1689,
it was recognized that the court's failure to ask
the defendant if he had anything to say before
sentence was imposed required reversal. . . .
Taken in the context of its history, there can be
little doubt that the drafters of [the federal
rule] intended that the defendant be personally
afforded the opportunity to speak before imposition
of sentence. . . . The most persuasive counsel may
not be able to speak for a defendant as the
defendant might, with halting eloquence, speak for
himself. [Green v United States, 365 US 301; 81 S
Ct 653; 5 L Ed 2d 670 (1961).]
In this case, the court—speaking exclusively to defense
counsel—asked if counsel had concluded defendant’s
dispositional presentation. This query immediately preceded
the court’s articulation of its sentencing rationale. At no
point did the court provide defendant with an opportunity to
13
allocute.8
The prosecutor has claimed that defendant could not
possibly have been adversely affected by this omission because
the judge had no discretion with regard to sentencing; the
felony-murder statute, MCL 750.316, requires mandatory life
imprisonment upon conviction. However, this conclusion
ignores the historical foundation of the right to allocute.
Under English common law, all felony convictions resulted in
mandatory death sentences. See 4 Blackstone, Commentaries,
375-376. By providing an opportunity to address the court, a
defendant could pray for an excused or delayed sentence. Id.
Hence, the mandatory nature of a sentence does not ipso facto
render the common-law right to allocute inapposite.
In fact, the right to allocution does much more than
permit an accused to plead for mercy. “It . . . ensure[s]
that sentencing reflects individualized circumstances.
Furthermore, allocution ‘has value in terms of maximizing the
perceived equity of the process.’” United States v De Alba
8
This Court recently clarified the scope of a defendant’s
right to allocute in Petit at 636: “[T]he trial court must
allow the defendant a chance to speak on his own behalf before
being sentenced. This does not mean that the trial court must
specifically ask the defendant whether he wishes to allocute,
although this would be the most certain way to ensure that all
defendants who do want to allocute on their own behalf are, in
fact, given the opportunity to do so.”
14
Pagan, 33 F3d 125, 129 (CA 1, 1994) (citations omitted). Even
when a defendant fails to convince a judge that sentence
modification is warranted, the opportunity itself serves to
provide a defendant with an occasion to accept responsibility,
offering defendants and victims a potentially dignified and
healing exchange. Moreover, a juvenile defendant tried in a
criminal proceeding should be afforded—at a minimum—the same
protections available to adults. To deny a juvenile a
meaningful opportunity to allocute at the only discretionary
stage of a combined dispositional and sentencing proceeding
would seriously affect the fairness and integrity of the
judicial proceeding, particularly when the juvenile is subject
to an adult criminal proceeding. Just as we reject the
Thenghkam Court’s command to create a mechanical list of
factual findings for each criterion prescribed by the
Legislature, we must also reject any attempt to transform a
juvenile defendant’s common-law right to allocute into a
perfunctory, hollow exercise.
Because our current court rules do not expressly provide
juvenile defendants with an opportunity to allocute at
dispositional hearings, and because this phase of the
proceeding may be the only opportunity for a court to exercise
15
its discretion, we amend MCR 3.9559 due to the need for
9
MCR 3.955 (formerly MCR 5.955) shall now read:
(A) Determining Whether to Sentence or Impose
Disposition. If a juvenile is convicted under MCL
712A.2d, sentencing or disposition shall be made as
provided in MCL 712A.18(1)(n) and the Crime
Victim's Rights Act, MCL 780.751 et seq., if
applicable. In deciding whether to enter an order
of disposition, or impose or delay imposition of
sentence, the court shall consider all the
following factors, giving greater weight to the
seriousness of the offense and the juvenile's prior
record:
(1) the seriousness of the alleged offense in
terms of community protection, including, but not
limited to, the existence of any aggravating
factors recognized by the sentencing guidelines,
the use of a firearm or other dangerous weapon, and
the effect on any victim;
(2) the culpability of the juvenile in
committing the alleged offense, including, but not
limited to, the level of the juvenile's
participation in planning and carrying out the
offense and the existence of any aggravating or
mitigating factors recognized by the sentencing
guidelines;
(3) the juvenile's prior record of delinquency
including, but not limited to, any record of
detention, any police record, any school record, or
any other evidence indicating prior delinquent
behavior;
(4) the juvenile's programming history,
including, but not limited to, the juvenile's past
willingness to participate meaningfully in
available programming;
(5) the adequacy of the punishment or
programming available in the juvenile justice
16
immediate action to require allocution before a court
determines whether a child will serve a juvenile disposition,
a blended sentence, or an adult sentence.10
Therefore, on remand, the trial court shall provide
defendant with an opportunity to allocute before choosing
among the three alternatives prescribed in MCL 217A.18(1)(n).
V
Defendant was sentenced as an adult to mandatory life for
first-degree murder. MCL 712A.18(1)(n). For the reasons
stated above, we repudiate the Court of Appeals analysis in
Thenghkam, vacate apposite portions of the Court of Appeals
system; and
(6) the dispositional options available for
the juvenile.
The court also shall give the defendant, the
defendant's lawyer, the prosecutor, and the victim
an opportunity to advise the court of any
circumstances they believe the court should
consider in deciding whether to enter an order of
disposition or to impose or delay imposition of
sentence.
(B)-(E) [Unchanged.]
10
MCR 1.201(D) provides:
The Court may modify or dispense with the
notice requirements of this rule if it determines
that there is a need for immediate action or if the
proposed amendment would not significantly affect
the delivery of justice.
17
opinion below, and remand this case to the trial court for a
rearticulation of its analysis after the court has given
defendant an opportunity to allocute.
Michael F. Cavanagh
Maura D. Corrigan
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
18