Electronically Filed BRIEF COVER PAGE. REPLY AMICUS OTHER [identify]: Answer to Plaintiff-Appellant s Application for Leave to Appeal

Transcription

1 Approved, Michigan Court of Appeals LOWER COURT Wayne County Circuit Court Electronically Filed BRIEF COVER PAGE CASE NO. Lower Court Court of Appeals (Short title of case) Case Name: People v. Richard Wershe 1. Brief Type (select one): APPELLANT(S) CROSS-APPELLANT(S) APPELLEE(S) CROSS-APPELLEE(S) REPLY AMICUS OTHER [identify]: Answer to Plaintiff-Appellant s Application for Leave to Appeal 2. This brief is filed by or on behalf of [insert party name(s)]: Richard Wershe 3. This brief is in response to a brief filed on September 4, 2015 by Plaintiff-Appellant. 4. ORAL ARGUMENT: REQUESTED NOT REQUESTED 5. THE APPEAL INVOLVES A RULING THAT A PROVISION OF THE CONSTITUTION, A STATUTE, RULE OR REGULATION, OR OTHER STATE GOVERNMENTAL ACTION IS INVALID. [See MCR 7.212(C)(12) to determine if this applies.] 6. As required by MCR 7.212(C), this brief contains, in the following order: [check applicable boxes to verify] Table of Contents [MCR 7.212(C)(2)] Index of Authorities [MCR 7.212(C)(3)] Jurisdictional Statement [MCR 7.212(C)(4)] Statement of Questions [MCR 7.212(C)(5)] Statement of Facts (with citation to the record) [MCR 7.212(C)(6)] Arguments (with applicable standard of review) [MCR 7.212(C)(7)] Relief Requested [MCR 7.212(C)(9)] Signature [MCR 7.212(C)(9)] 7. This brief is signed by [type name]: Peter Jon Van Hoek Signing Attorney s Bar No. [if any]: (P26615) (10/06) E-File Brief Cover Page MCR 7.212(C)

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... i STATEMENT OF JURISDICTION... iii STATEMENT OF QUESTIONS PRESENTED... iv STATEMENT OF FACTS...1 I. JUDGE HATHAWAY CORRECTLY RULED THAT MR. WERSHE S MANDATORY LIFE SENTENCE SHOULD BE VACATED, AND HE SHOULD BE RESENTENCED SO THAT THE TRIAL COURT CAN CONSIDER THE FACTORS OUTLINED IN GRAHAM V FLORIDA, 560 US 48; 130 S CT 2011; 176 L ED 2D 825 (2010), AS MR. WERSHE WAS A JUVENILE WHEN THIS MANDATORY SENTENCE WAS IMPOSED....4 SUMMARY AND RELIEF...30 PVH* Answer to Plaintiff-Appellant's Application for Leave to Appeal docx*28754 Richard Wershe

3 INDEX OF AUTHORITIES CASES Atkins v Virginia, 536 US 304; 122 S Ct 2242; 153 L Ed 2d335 (2002)..11 Graham v Florida, 560 US 48; 130 S CT 2011; 176 L ED 2D 825 (2010)... passim Harmelin v Michigan, 501 US 957; 111 S Ct 2680; 115 L Ed 2d 836 (1991) In re Sparks, 657 F3d 258 (5th Cir, 2011)... 7 Miller v Alabama, US ; 132 S Ct 2455; 183 L Ed 2d 407 (2012)...passim People v Bullock, 440 Mich 15; 485 NW2d 866 (1992)... 6, 21, 22, 24 People v Carp, 496 Mich 440 (2014)... 5, 7 People v Lockridge,, Mich ; NW2d (N , rel'd 7/29/15) People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972). 21 Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005)... passim Sanford v Kentucky, 492 US 361; 109 S Ct 2969; 106 L Ed 2d 306 (1989)... 9 Thompson v Oklahoma, 487 US 815; 108 S Ct 2687; 101 L Ed 2d 702 (1988)..12 Wershe v Combs, 763 F3d 500 (CA 6, 2014)... 2 CONSTITUTIONAL PROVISIONS, STATUTES, COURT RULES 228 USC sec 2254(d)(1) USC sec USC sec , 23 Const 1963, art 1, sec , 6, 21 MCL (4)(a)-(d), (5) MCL i

4 MCL (2) MCL (2)(a)(i)... 1, 22, 26 MCL , 24, 25 MCL MCL MCL (4) MCL (9)... 1 MCR et seq... 3, 6, 8, 29 US Const, Amend VIII...passim ii

5 STATEMENT OF JURISDICTION Defendant-Appellee agrees with Plaintiff-Appellant s statement of the jurisdiction of this Court under MCR 7.203(B). iii

6 STATEMENT OF QUESTIONS PRESENTED I. DID JUDGE HATHAWAY CORRECTLY RULE THAT MR. WERSHE S MANDATORY LIFE SENTENCE SHOULD BE VACATED, AND HE SHOULD BE RESENTENCED, SO THAT THE TRIAL COURT CAN CONSIDER THE FACTORS OUTLINED IN GRAHAM V FLORIDA, 560 US 48; 130 S CT 2011; 176 L ED 2D 825 (2010), AS MR. WERSHE WAS A JUVENILE WHEN THIS MANDATORY SENTENCE WAS IMPOSED? Trial Court answers, "Yes". Plaintiff-Appellant answers, "No". Defendant-Appellee answers, Yes. iv

7 STATEMENT OF FACTS Defendant-Appellee Richard Wershe was convicted, at a jury trial in Wayne County Circuit Court (then Recorder s Court for the City of Detroit), of one count of possession with intent to deliver more than 650 grams of a substance containing cocaine, in violation of MCL (2)(a)(i). The offense occurred on May 22, On February 18, 1988, he was sentenced to the then mandatory prison term of life without the possibility of parole. Mr. Wershe, who was born on July 18, 1969, was 17 years old on the date of the offense. He is currently incarcerated at the Oaks Correctional Facility in Manistee, Michigan. He is now 46 years old, having served over 27 years in custody. Mr. Wershe appealed as of right from the conviction and sentence. The conviction was affirmed by the Michigan Court of Appeals in April, 1990, and leave to appeal was denied to him by the Michigan Supreme Court in September, Subsequent to his sentencing, pursuant to changes in Michigan law, the non-parolable provision of his sentence was removed. On March 10, 2000, Wayne County Circuit Court Judge Thomas Jackson granted Mr. Wershe s motion, pursuant to MCL (9), for Judicial Determination of Cooperation, and ordered he been given parole consideration within 15 years of his sentencing date, rather than the statutory period of 17 ½ years. On March 27, 2003, Mr. Wershe had his first, and only, parole hearing before the Michigan Parole Board. After hearing testimony from numerous witnesses, including law enforcement officials from both Michigan and the Federal government, both in favor of and opposed to granting him parole, the Parole Board, on April 25, 2003, voted to withdraw 1

8 interest in granting him parole.1 Mr. Wershe was interviewed in 2008, five years later, but again the Parole Board concluded they had no interest in issuing him a parole. In May 2012, Mr. Wershe received a letter from the Parole Board entitled Notice of Intent to Conduct a Parole Board Review for Prisoners Serving a Life Sentence. That letter indicated that since a hearing was held in 2003, this review would consist only of a review of his file. On July 2, 2012, he received another letter informing him the Parole Board was going to conduct a second interview with him on August 20, No interview was held on that date, with no notice to Mr. Wershe as to why it was cancelled. He later received a communication from the Parole Board that the Board had no interest in taking action, and that his next review has been scheduled for December 9, When Mr. Wershe wrote to the Parole Board asking why he had not been interviewed in August, 2012, he was told the letter stating that had been sent to him in error, and that the Board does not have to re-interview or have a new hearing every five years. Mr. Wershe has several times sought commutation from the Governor s Office, to no avail. Mr. Wershe subsequently filed an action under 42 USC sec. 1983, against two members of the Parole Board, alleging Eighth and Fifth Amendment violations in the review of his parole eligibility. On January 22, 2013, District Court Judge Gordon Quist of the Western District of Michigan dismissed that action. Mr. Wershe appealed that decision to the Sixth Circuit Court of Appeals. On August 13, 2014, the Sixth Circuit issued its opinion, affirming the dismissal of the Fifth Amendment due process claim, but vacating the District Court s dismissal of the Eighth 1 While the facts of the parole proceedings in this matter are not on the trial court record of the current proceeding, they are included in the opinion of the Sixth Circuit Court of Appeals in Mr. Wershe s Federal court action. Wershe v Combs, 763 F3d 500 (CA 6, 2014). Attached as Appendix B. 2

9 Amendment claim and remanding the case to Judge Quist. Wershe v Combs, supra. See Appendix B. That matter is currently pending before Judge Quist. On August 6, 2015, Mr. Wershe filed an Amended Motion for Relief From Judgment, pursuant to MCR et seq, in Wayne County Circuit Court. The prosecution filed a written response to that motion. On September 4, 2015, Judge Dana M. Hathaway announced from the bench she was granting Mr. Wershe s motion, and ordering him to be re-sentenced on September 18, (T, 9/4/15, 3-5). Attached as Appendix C. Judge Hathaway denied the prosecution s request to stay the re-sentencing pending an interlocutory appeal to the Michigan Court of Appeals. Also on September 4, 2015, Judge Hathaway filed a written Order and Opinion granting the Motion for Relief From Judgment. See Appendix A. On September 4, 2015, the prosecution filed an Application for Leave to Appeal, a Motion to Stay, and a Motion for Immediate Consideration, in the Michigan Court of Appeals. On September 9, 2015, Mr. Wershe moved for appointment of appellate counsel to respond to the prosecution s pleadings. On September 10, 2015, the trial court appointed the State Appellate Defender Office to represent Mr. Wershe. On September 11, 2015, the Court of Appeals issued an order staying the proceedings in the trial court, granting immediate consideration, and permitting Mr. Wershe until September 22, 2015, to file a written response to the application for leave to appeal. The application was held in abeyance pending Mr. Wershe s response, and any reply from the prosecution to that response. 3

10 I. JUDGE HATHAWAY CORRECTLY RULED THAT MR. WERSHE S MANDATORY LIFE SENTENCE SHOULD BE VACATED, AND HE SHOULD BE RESENTENCED SO THAT THE TRIAL COURT CAN CONSIDER THE FACTORS OUTLINED IN GRAHAM V FLORIDA, 560 US 48; 130 S CT 2011; 176 L ED 2D 825 (2010), AS MR. WERSHE WAS A JUVENILE WHEN THIS MANDATORY SENTENCE WAS IMPOSED. Standard of Review The applicable appellate standard of review for this issue is de novo, as stated by Plaintiff-Appellant. Argument Plaintiff-Appellant has asserted three grounds for granting of the application for leave to appeal in this matter two on procedural arguments and one on the substance of Judge Hathaway s opinion and order. Mr. Wershe will respond in order to Plaintiff s claims, all of which should be rejected by this Court. A. Law of the case: Plaintiff asserts Judge Hathaway was without legal authority to grant Mr. Wershe s Motion for Relief From Judgment under MCR 6.508(D)(2), arguing a trial judge cannot grant relief under this rule if the defendant alleges grounds for relief which were decided against the defendant in a prior appeal unless the defendant establishes that a retroactive change in the law has undermined the prior decision. In support of this argument, Plaintiff cites to, but does not attach any supporting documentation, the direct appeal of right in this matter in which, according to the prosecution, Mr. Wershe asserted his life without the possibility of parole sentence was cruel and unusual under the Eighth Amendment. Plaintiff s application at 8, fn 8. The flaw in Plaintiff s argument is that Judge Hathaway expressly did not hold that Mr. Wershe s current sentence either violates the Eighth Amendment s bar on sentences that are 4

11 cruel and unusual, or the Michigan Constitution s bar on sentences that are cruel or unusual. Const 1963, art 1, sec 16. To the contrary, she explicitly and repeatedly stated she was not, and did not have to, rule the current sentence to be unconstitutional in order to grant re-sentencing: This court finds that Defendant's original sentence was unconstitutional pursuant to Graham, [Graham v Florida, 560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010)] and that the statute allowing for parole does not in and of itself cure the constitutional insult. Both the United States Supreme Court and the Michigan Supreme Court have recognized that children are constitutionally different than adults. See People v Carp, 496 Mich 440, 463 (2014). The Defendant's original sentence and the modified sentence failed to consider his age at the time of the crime. Under Graham, this is an affront to his Eighth Amendment rights. While this opinion outlines a great number of reasons why the Defendant's current parolable life sentence could be deemed unconstitutional, the court needn't reach that conclusion at this time. The reasons discussed below simply amplify the need to resentence this Defendant while giving due consideration to his age and the attendant characteristics at the time of the offense. * * * As previously stated, this opinion does not conclude that a sentence of life with parole for juvenile offenders is unconstitutional; however, the court will consider at sentencing whether a sentence of parolable life is appropriate in this case given the Defendant's age and circumstances of this particular crime. * * * This court is not ruling that the current life with parole statute is invalid or unconstitutional, but the court never had a prior opportunity to consider the juvenile's age, maturity and other circumstances when it imposed the original mandatory life sentence or modified parolable sentence. Appendix A at 4-5, 17. (Emphasis added). It is obvious that the argument made by Mr. Wershe in his initial appeal of right in 1988 did not, and could not, have claimed that a mandatory parolable life sentence violates the Eighth Amendment, nor could that argument have depended on the United States Supreme Court s opinion in Graham, supra, which opinion would not be issued for more than 20 years later. His argument then appears to have been the same one that later proved successful in both Graham, 5

12 under the Eighth Amendment, and even earlier in People v Bullock, 440 Mich 15; 485 NW2d 866 (1992), under art 1, sec 16 of the Michigan Constitution. As he was not serving a mandatory parolable life sentence in 1988, the question of the validity of such a sentence was not, and could not, have been at issue in his initial appeal of right. While Mr. Wershe will argue later in this brief that the rationale of the Graham decision was correctly applied by Judge Hathaway in order to grant the re-sentencing, this Court need not consider whether Graham establishes a retroactive change in the law has undermined the prior decision under MCR 6.508(D)(2). The issue that was raised, and more importantly decided, in the current action was not the same issue, nor the same decision, that was the subject matter of the prior appeal. While Mr. Wershe did claim in the Motion for Relief From Judgment that his current sentence equally violates the Eighth Amendment, Judge Hathaway opinion expressly did not resolve that claim, and as such was not directly contrary to the decision of the Court of Appeals in B. Second or successive motion: Plaintiff-Appellant next argues Judge Hathaway was without legal authority to grant the Motion for Relief From Judgment because Mr. Wershe has previously filed a motion under MCR et seq, and thus the present motion is a second or successive motion under these provisions. Under MCR 6.502(G), a defendant may only file one motion for relief from judgment after August 1, 1995, unless the second or successive motion is based on a retroactive change in law that occurred after the first motion for relief from judgment, or based on a claim of newly discovered evidence (G)(2). The initial motion for relief from judgment, according to the prosecution, was filed in 2001 and denied in

13 For the reasons discussed more fully below, the United States Supreme Court s subsequent rulings in Graham, supra; Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005); and Miller v Alabama, US ; 132 S Ct 2455; 183 L Ed 2d 407 (2012), have created a retroactive change in law that directly impacts on Mr. Wershe s current sentence. While it must be acknowledged that none of those cases expressly concerned exactly the sentence Mr. Wershe is currently serving a mandatory parolable life term the rationale of this line of cases is highly relevant to the issue raised in the case at bar. In essence, this case is the next case in line in applying the evolving view of the sentencing of juveniles to life sentences, particularly where there was no discretion, as of the date of the sentencing, to consider either the scientific evidence in general or the individual circumstances of the particular defendant. MCR 6.508(G)(2) does not state that a retroactive change in the law is limited to new cases that are direct precedent mandating relief to the defendant. Instead, the language of the court rule recognizes that a significant change in law can mean that the precise issue raised in the second or successive motion could not have been raised in the initial motion for relief from judgment. In 2001, as with the direct appeal, Mr. Wershe could not have asserted that the reasoning of Graham, Roper, and Miller should be applied to his case and supports his request for resentencing, as those opinions did not exist at that time, nor had the Supreme Court yet recognized the scientific and psychological grounds for treating juveniles differently from adults at the point of sentencing. As Judge Hathaway recognized, Federal courts have found Graham to have retroactive effect. 2 See, for example, In re Sparks, 657 F3d 258, 260 (5th Cir, 2011) (permitting the defendant to file a second and successive motion under 28 USC sec 2255 the Federal law 2 While the Michigan Supreme Court held that Miller should not apply retroactively in People v Carp, 496 Mich 440; 852 NW2d 801 (2014), that question is currently pending review in the United States Supreme Court. See Montgomery v Louisiana, Sup Ct No

14 counterpart to MCR et seq to challenge his life without parole sentence under Graham). In remanding Mr. Wershe s 1983 action to the District Court, the Sixth Circuit expressly relied on the reasoning of Graham to hold Mr. Wershe has presented a sufficient claim of an Eighth Amendment violation to bar the dismissal of that claim in relation to the parole denial. See Appendix B. If Graham has no retroactive relevance to Mr. Wershe s case, the Sixth Circuit would have affirmed Judge Quist s decision. Mr. Wershe has met the standard for the exception to MCR 6.502(G)(1), as Judge Hathaway recognized. While the prosecution certainly is free to dispute the substance of her ruling, she was not procedurally barred from considering Mr. Wershe s arguments. 3 C. Judge Hathaway s substantive ruling: Judge Hathaway granted Mr. Wershe s Motion for Relief From Judgment, and ordered him re-sentenced, as he was a 17-year old juvenile when he was sentenced to the mandatory prison term of life in In her lengthy and well-reasonable opinion and order (Appendix A), she recognized the significant changes in the law, the statutes at issue, and in the objective scientific and behavioral fields that impact on the crucial questions of the culpability, sentencing, and rehabilitation of juveniles. This case stands uniquely at the intersection of two evolving trends in the law the sentencing of juveniles as compared to adults, and a legislative recognition of the undue and unfairly draconian sentencing schemes of the past regarding the offense on which Mr. Wershe was convicted. Coupled with the demonstrated facts showing the extreme unlikelihood that persons sentenced to parolable life terms will ever in fact be paroled, both generally and 3 It is ironic and unfair, to say the least, that if Judge Hathaway had instead ruled this second or successive motion was barred under MRE 6.502(G)(1), Mr. Wershe may have been barred, by the language of that subsection, from seeking any appeal from that decision. No like ban on appeals is imposed by the rule on prosecutors who, like here, seek to appeal from a ruling that a second or successive motion is permitted under (G)(2). 8

15 specifically in regards to Mr. Wershe, this Court should deny leave to appeal to Plaintiff- Appellant, and permit Judge Hathaway to re-sentence Mr. Wershe in consideration of the critical and relevant evidence concerning his age at the time of this offense. Evolving case law on the sentencing of juveniles In Miller v Alabama, US ; 132 S Ct 2455; 183 L Ed 2d 407 (2012), the United States Supreme Court ruled the imposition of a mandatory sentence of life without the possibility of parole following the homicide conviction of a juvenile defendant, defined as a person who was under the age of 18 as of the date of the commission of the sentencing offense, is cruel and unusual punishment under the Eighth Amendment of the United States Constitution. 4 The Miller decision is the latest in a string of decisions from the Supreme Court which have applied the Eighth Amendment to strike down particular punishments. Miller relies upon the reasoning and scientific developments that are at the core of the Court s prior decisions in Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005), and Graham v Florida, 560 US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010).. In Roper, supra, the Court held the Eighth and Fourteenth Amendments bar the imposition of the death penalty to persons under the age of 18 at the time of the conviction offense. In a prior case, the Court barred the death penalty for persons under the age of 16, 5 but later refused to extend that ban to 16 and 17-year olds. Sanford v Kentucky, 492 US 361; 109 S Ct 2969; 106 L Ed 2d 306 (1989). The Roper decision, written by Justice Kennedy, reconsidered Sanford, and found the evolving standards of decency that mark the progress of a maturing society supported the extension of the Thompson ruling to all persons under the age of US at 560. While much of the discussion in Roper focused on the trends among the states and 4 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 5 Thompson v Oklahoma, 487 US 815; 108 S Ct 2687; 101 L Ed 2d 702 (1988). 9

16 other countries to bar the use of the death penalty for juveniles, the portion of Roper that is most relevant to the later decisions in Graham and Miller, and thus to the case at bar, concerns the ongoing research and findings of the scientific and medical communities as to the objective reasons why juveniles are different from adults in regards to criminal culpability, and how those findings impact on the concept of sentencing. 6 The Roper Court stated the fundamental grounds for its conclusion that juveniles must be treated differently that adults for the purposes of the death penalty: Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, [a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions. * * * ( Even the normal 16 year old customarily lacks the maturity of an adult ). It has been noted that adolescents are overrepresented statistically in virtually every category of reckless behavior. Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Rev. 339 (1992). In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. See Appendixes B D, Infra. The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure * * * ( [Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage ). This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 6 In Roper, the Court analogized its holding to the prior ruling barring the imposition of the death penalty against mentally retarded individuals, which was also based on a determination that those defendants are not as criminally responsible as adults who have committed equivalent offenses. See Atkins v Virginia, 536 US 304; 122 S Ct 2242; 153 L Ed 2d335 (2002). 10

17 1009, 1014 (2003) (hereinafter Steinberg & Scott) ( [A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting ). The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis (1968). These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult. * * * Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. * * * The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, [t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. * * * see also Steinberg & Scott 1014 ( For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood ). 543 US at (Citations omitted). The Court then considered the dual aims of criminal punishment retribution and deterrence and concluded that neither aim justified the use of the death penalty for juveniles. As to retribution, the Court stated: As for retribution, we remarked in Atkins that [i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. 536 U.S., at 319, 122 S.Ct The same conclusions follow from the 11

18 lesser culpability of the juvenile offender. Whether viewed as an attempt to express the community's moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Retribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity. Id. at 571. In regards to the deterrent effect of the infliction of the death penalty to juveniles, the Court reached a similar finding: As for deterrence, it is unclear whether the death penalty has a significant or even measurable deterrent effect on juveniles, as counsel for petitioner acknowledged at oral argument. * * * In general we leave to legislatures the assessment of the efficacy of various criminal penalty schemes* * *. Here, however, the absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence. In particular, as the plurality observed in Thompson, [t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent. 487 U.S., at 837, 108 S.Ct Id. at (Citations omitted). While recognizing the brutality of the crimes that led to imposition of the death penalty in these cases, the Court rejected the state s argument that juvenile defendants should be treated the same as adults in deciding whether to impose that ultimate penalty requiring the jury to weigh the mitigating and aggravating circumstances on a case-by-case basis but not barring the use of the death penalty depending on the depravity of the acts. Again, the Court focused on the diminished culpability of juveniles to support its holding that a categorical ban is required by the Eighth Amendment: We disagree. The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability. 12

19 An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. In some cases a defendant's youth may even be counted against him. In this very case, as we noted above, the prosecutor argued Simmons' youth was aggravating rather than mitigating. * * * While this sort of overreaching could be corrected by a particular rule to ensure that the mitigating force of youth is not overlooked, that would not address our larger concerns. Id. at (Citations omitted). The Court explained as unacceptable the risk that a particular juvenile defendant would be subjected to the death penalty by noting the significant difficulty in assessing a particular defendant s future development and capacity for rehabilitation: It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. See Steinberg & Scott As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under 18 as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and contempt for the feelings, rights, and suffering of others. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. text rev.2000); see also Steinberg & Scott If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, we conclude that States should refrain from asking jurors to issue a far graver condemnation that a juvenile offender merits the death penalty. When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. Id. at (Emphasis added). In Graham, supra, the Court expanded upon their reasoning in Roper to categorically ban the imposition of a life without the possibility of parole (LWOP) sentence to a juvenile convicted 13

20 of a non-homicide offense. In Graham, the defendant at issue was given a LWOP sentence for a robbery conviction where he was originally sentenced to probation, but then violated that probation by commission of a new offense. The Graham majority rejected the dissenting opinion of Chief Justice Roberts that while the sentence in this case might be so disproportionate on its facts to violate the Eighth Amendment, 7 no categorical rule should be imposed. To the contrary, the Graham majority, focusing on the same concepts as in Roper regarding the diminished culpability of juveniles and their increased ability to rehabilitate as they mature, found the use of a LWOP sentence for a juvenile to be cruel and unusual. The Graham majority noted that in the years since the Roper decision, the scientific and medical communities have reinforced the findings that juveniles are different from adults in terms of culpability due to the lack of brain development prior to age 18: 560 US at 68. No recent data provide reason to reconsider the Court's observations in Roper about the nature of juveniles. As petitioner's amici point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence. See Brief for American Medical Association et al. as Amici Curiae 16 24; Brief for American Psychological Association et al. as Amici Curiae Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of irretrievably depraved character than are the actions of adults. Roper, 543 U.S., at 570, 125 S.Ct It remains true that [f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Ibid. These matters relate to the status of the offenders in question 7 The presentence report in the case recommended that the juvenile defendant receive a four year prison sentence on the probation violation, while the state prosecutor asked for a 30 year minimum sentence. 560 US at56. 14

21 While recognizing that prior cases have found the difference between the death penalty and other sentences are a matter of kind, not degree, the Graham Court found that especially in regards to juveniles, the imposition of a LWOP sentence is not sufficiently less harsh than the death penalty to preclude a finding that it is cruel and unusual where no homicide has occurred: It is true that a death sentence is unique in its severity and irrevocability, * * * yet life without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender's life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency the remote possibility of which does not mitigate the harshness of the sentence. * * * As one court observed in overturning a life without parole sentence for a juvenile defendant, this sentence means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days. * * * Life without parole is an especially harsh punishment for a juvenile. Under this sentence a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16 year old and a 75 year old each sentenced to life without parole receive the same punishment in name only. * * * ( In some cases... there will be negligible difference between life without parole and other sentences of imprisonment for example,... a lengthy term sentence without eligibility for parole, given to a 65 year old man ). This reality cannot be ignored. Id. at (Citations omitted). (Emphasis added). The Graham opinion echoed the statements in Roper regarding the goals of retribution and deterrence when juvenile defendants are involved. While the Court understood that incapacitation of a juvenile defendant for life would prevent that defendant from committing other offenses against the public, the LWOP sentence ignores the greater potential of juveniles to change as they mature and develop: 15

22 To justify life without parole on the assumption that the juvenile offender forever will be a danger to society requires the sentencer to make a judgment that the juvenile is incorrigible. The characteristics of juveniles make that judgment questionable. * * * Graham deserved to be separated from society for some time in order to prevent what the trial court described as an escalating pattern of criminal conduct, App. 394, but it does not follow that he would be a risk to society for the rest of his life. Even if the State's judgment that Graham was incorrigible were later corroborated by prison misbehavior or failure to mature, the sentence was still disproportionate because that judgment was made at the outset. A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity. Incapacitation cannot override all other considerations, lest the Eighth Amendment's rule against disproportionate sentences be a nullity. Id. at (Emphasis added). Finally, as to rehabilitation, the Court noted a LWOP sentence effectively eliminates any achievements at rehabilitation by the inmate, and may in addition administratively frustrate the juvenile s opportunities for improvement and growth: A sentence of life imprisonment without parole, however, cannot be justified by the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person's value and place in society. This judgment is not appropriate in light of a juvenile nonhomicide offender's capacity for change and limited moral culpability. A State's rejection of rehabilitation, moreover, goes beyond a mere expressive judgment. As one amicus notes, defendants serving life without parole sentences are often denied access to vocational training and other rehabilitative services that are available to other inmates. * * * For juvenile offenders, who are most in need of and receptive to rehabilitation, * * * the absence of rehabilitative opportunities or treatment makes the disproportionality of the sentence all the more evident. * * * Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation. A young person who knows that he or she has no chance to leave 16

23 prison before life's end has little incentive to become a responsible individual. In some prisons, moreover, the system itself becomes complicit in the lack of development. As noted above, see supra, at , it is the policy in some prisons to withhold counseling, education, and rehabilitation programs for those who are ineligible for parole consideration. A categorical rule against life without parole for juvenile nonhomicide offenders avoids the perverse consequence in which the lack of maturity that led to an offender's crime is reinforced by the prison term. Terrance Graham's sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit. Id. at 74, 79. (Citations omitted). (Emphasis added). By barring the imposition of LWOP sentences for juveniles who commit non-homicide offenses, the Court expressly was not requiring states to ultimately grant paroles to all such juvenile defendants. The Court understood that parole is a matter of discretion with the state authorities not a right of the inmate. What violates the Eighth Amendment, however, is the lack of any opportunity for the defendant to demonstrate that he or she had matured and changed sufficiently to justify a parole release: A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment 17

24 does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society. Id. at 75. (Emphasis added). Finally, in Miller, supra, the Supreme Court, relying primarily on its rationale in Roper and Graham, held the Eighth Amendment is violated when state law mandates a LWOP sentence for a juvenile convicted of murder. The Miller majority opinion cites to most of the abovequoted language from those cases, and concludes they establish a general rule that children are different from adults when a trial judge is deciding on the appropriate sentence: 132 S Ct at To start with the first set of cases: Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing. * * * And in Graham, we noted that developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds for example, in parts of the brain involved in behavior control. 560 U.S., at, 130 S.Ct., at We reasoned that those findings of transient rashness, proclivity for risk, and inability to assess consequences both lessened a child's moral culpability and enhanced the prospect that, as the years go by and neurological development occurs, his deficiencies will be reformed. The Court, while recognizing that Graham on its face only applies to non-homicide offenses, explained the principles articulated in Graham are no less important where homicide is the sentencing offense: To be sure, Graham 's flat ban on life without parole applied only to nonhomicide crimes, and the Court took care to distinguish those offenses from murder, based on both moral culpability and consequential harm. See id., at, 130 S.Ct., at But none of what it said about children about their distinctive (and transitory) mental traits and environmental vulnerabilities is crime-specific. Those features are evident in the same way, and to 18

25 the same degree, when (as in both cases here) a botched robbery turns into a killing. So Graham's reasoning implicates any lifewithout-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses. Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole. Id. at (Emphasis added). The Court concluded it is the mandatory provision of these sentencing schemes that conflict with the Eighth Amendment, in that all discretion is removed from the trial judge to impose a sentence less than LWOP, regardless of the circumstances of the offense or of the particular offender: That contravenes Graham's (and also Roper's) foundational principle: that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children. * * * So Graham and Roper and our individualized sentencing cases alike teach that in imposing a State's harshest penalties, a sentencer misses too much if he treats every child as an adult. Id. at 2466, (Emphasis added). In conclusion, the Miller Court, again echoing the language from Graham, held a state law which mandates a LWOP sentence for a juvenile homicide defendant is cruel and unusual: We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Cf. Graham, 560 U.S., at, 130 S.Ct., at 2030 ( 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. * * * But given all we have said in Roper, Graham, and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty 19

26 will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. * * * Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Id. at (Citations omitted). (Emphasis added). In enacting MCL in response to the Miller decision, the Michigan Legislature gave a trial judge discretion in sentencing a juvenile defendant convicted of first-degree murder under MCL to impose a term of years sentence, within the statutory range, instead of a LWOP sentence, and mandated the judge hold a hearing to take evidence and consider the relevant Miller considerations prior to exercising that discretion. The Roper, Graham, and Miller opinions clearly evidence an evolving recognition in the law that the imposition of mandatory and/or extremely harsh sentences to juveniles without consideration, at the outset, of the scientific findings and individual factors that make juveniles different than adults when it comes to culpability, rehabilitation, and maturity is impermissible, if not constitutionally invalid. In each case, the Court expanded this recognition to ban sentencing practices that failed to permit distinguishing between juveniles and adults when the sentence was imposed. A critical factor in most of these cases was the mandatory nature of the severe sentence a fact that completely eliminated a sentencing judge s discretion to individualize the sentence to the particular offender and offense. Evolving Michigan controlled substances statutory law When Mr. Wershe was sentenced in 1988, the statute at issue MCL (2))a)(i) - mandated a sentence of life without the possibility of parole for any person convicted of 20

27 possession with intent to deliver 650 or more grams of a substance containing cocaine. 8 In the intervening years, that sentencing statute has dramatically changed, due to both Legislative action and court decisions. In People v Bullock, 440 Mich 15; 485 NW2d 866 (1992), the Michigan Supreme Court held that the mandatory life without the possibility of parole sentence under a related provision of the statute violated the cruel or unusual provision of the Michigan Constitution. Const 1963, art 1, sec 16. The Court noted that while the United States Supreme Court in Harmelin v Michigan, 501 US 957; 111 S Ct 2680; 115 L Ed 2d 836 (1991), refused to find that mandatory sentence violated the Eighth Amendment ban on cruel and unusual sentences, the more expansive Michigan constitutional provision was violated by the lack of possibility of parole. See also People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972) (striking down a mandatory minimum sentence of 20 years for selling any amount of marijuana as violating art 1, sec 16, as well as the Eighth Amendment). As a remedy, the Bullock Court retained that section of (2)(a)(i) which mandated a life sentence, but vacated the provision in MCL (4) which barred defendants convicted under the controlled substances statute from parole eligibility: We conclude that the most appropriate remedy under the circumstances is to ameliorate the no-parole feature of the penalty. We therefore strike down, with regard to these defendants and all others who have been sentenced under the same penalty and for the same offense, that portion of MCL (4); MSA (4) denying such defendants the parole consideration otherwise available upon completion of ten calendar years of the sentence. Thus, each such defendant shall, upon serving ten calendar years of the sentence, become subject to the jurisdiction of the parole board and eligible for parole consideration in accordance with MCL (4)(a)-(d), (5); MSA (4)(a)-(d), (5). 440 Mich at (Footnote omitted). 8 This section of MCL read that the mandatory sentence was life in prison. The nonparolable aspect of the sentence was set forth in the-then MCL (4)). 21

28 Subsequent to the Bullock decision, the Michigan Legislature has twice amended MCL (2)(a)(i), each time reducing the severity of the available sentencing options to a trial judge. In 1998, the statute was amended to change the statutory term to life or any term of years, with a mandatory minimum term of 20 years. Later, in 2003, the Legislature again amended the statute, now stating the punishment as life or any term of years (with no mandatory minimum) and/or a fine of up to $1,000,000. Accordingly, no Michigan defendant adult or juvenile - convicted under this subsection of the law 9 can now be sentenced to a mandatory life term, and the sentencing guidelines apply to the sentencing court s discretionary decision on the length of the appropriate and individualized sentence. 10 In her opinion, Judge Hathaway noted the guidelines for Mr. Wershe, if sentenced under the current life or any term of years provision, would tentatively result in a recommended range for the minimum sentence of 42 to 70 months, and, even if a defendant scored in the highest range of the offense variables, a recommendation of 126 to 210 months, both ranges being far below the actual amount of time Mr. Wershe has already served, and making it extremely unlikely, even under Lockridge, that a re-sentence would result in a renewed life term. Appendix A at 10, fn. 9. Judge Hathaway s decision In her decision, Judge Hathaway considered and applied both of these developments in the law to find the mandatory life sentence in this case should be overturned, and Mr. Wershe re- 9 The statute also has raised the threshold amount of controlled substances subject to the most severe sentence to 1000 grams, up from 650, as the statute read at the time of Mr. Wershe s conviction. 10 Mr. Wershe understands that if re-sentencing is granted, consideration of the guidelines will be controlled by the recent opinion of the Michigan Supreme Court in People v Lockridge, Mich ; NW2d (Docket No , rel d 7/29/15), which made the sentencing guidelines advisory rather than mandatory. However, under Lockridge the guidelines must still be accurately scored, and the sentencing judge must consider the accurate range for the minimum sentence. 22