STATE OF MICHIGAN

IN THE SUPREME COURT______________________________________________________________________________

PEOPLE OF THE STATEOF MICHIGAN,

Plaintiff-Appellee Supreme Court No:Circuit Court Docket: 307758

v Court of Appeals Docket: 06-001700-FC

RAYMOND CURTIS CARP,

Defendant-Appellant______________________________________________________________________________

ST. CLAIR COUNTY PROSECUTING ATTORNEYTIMOTHY K MORRIS (P40584)Attorney for PlaintiffSt. Clair County Courthouse201 McMorran Blvd. Rm. 3300Port Huron, MI 48060____________________________________

PATRICIA L. SELBY (P70163)Attorney for Defendant-AppellantSelby Law Firm, PLLCPO Box 1077Grosse Ile, Michigan 48138____________________________________

ERIC B. RESTUCCIA (P49550)Attorney for Attorney General, Intervener525 W. Ottawa StreetPO Box 30217Lansing, Michigan 48909

APPLICATION FOR LEAVE TO APPEAL

ii

JUDGMENT APPEALED FROM AND RELIEF SOUGHT

Defendant-Appellant Raymond Carp was convicted in October 2006, following a jury

trial in the St. Clair County Circuit Court, of first degree or felony-murder,1 armed robbery,2

larceny in a building,3 and larceny of property worth more than $1000 but less than $20,000.4

Fifteen years of age at the time of the offense, Raymond received a mandatory sentence of life

without parole for the murder conviction.

Following unsuccessful appeals to the Michigan Court of Appeals and this Court, he filed

a motion for relief from judgment pursuant to Michigan Court Rules 6.500, et seq. The trial court

denied Raymond’s motion in an Order issued January 13, 2011. Leave was initially denied by

the Michigan Court of Appeals on June 8, 2012, for failure to demonstrate Raymond’s

entitlement to relief under MCR 6.508(D). Miller v Alabama/Jackson v Hobbs, 567 US ___; 132

S Ct 2455; 183 L Ed 2d 407 (2012), which held that imposing mandatory non-parolable life

sentences on juvenile homicide offenders is a violation of the Eighth Amendment, id. at 2475,

was decided on June 25, 2012. Following Defendant’s motion for reconsideration and to

supplement authority, the court of appeals granted leave to appeal, directing the parties to

address the issues raised by Miller, as well as whether its holding should be applied retroactively.

Oral argument was heard on October 16, 2012, lasting over three hours, and including the

invited participation of five amici.5 The court of appeals denied Raymond’s appeal on the Miller-

related issues on November 15, 2012. People v Carp, __ NW2d __, 2012 WL 5846553 (Nov. 15,

1 MCL 750.316; the verdict form lists both forms of homicide, but does not distinguish between them.2 MCL 750.530.3 MCL 750.360.4 MCL 750.356(3)(a).5 The Criminal Defense Attorneys of Michigan and Prosecuting Attorneys Association of Michigan filed

amicus briefs at the court’s invitation; the Attorney General’s Office, the State Appellate DefendersOffice and the American Civil Liberties Union of Michigan filed amicus briefs on leave of the court.

iii

2012), Docket No. 307758.

For the reasons set forth in detail in the attached brief in support, this Court should grant

leave to appeal both actions by the court of appeals. First, Miller, supra, has raised a substantial

question as to the validity of Michigan’s homicide sentencing scheme as it pertains to juveniles.

MCR 7.302(B)(1). Michigan mandates a non-parolable life sentence for all those convicted of

first-degree homicide, including juveniles. MCL 750.316; People v Morrin, 31 Mich App 301,

325; 187 NW2d 434 (1971); MCL 769.1(1)(g) (juveniles convicted of MCL 750.316 sentenced

as adults).

Second, the decision below involves legal principles of major significance, including

respect for legislative intent and the separation of powers. MCR 7.302(B)(3); Const 1963, art III,

§ 2. The court of appeals’ post-Miller remedy creates a criminal sentencing procedure out of

whole cloth, implementing a discretionary hearing where no discretion has been granted by the

Legislature. People v Palm, 245 Mich 396; 223 NW 67 (1929).

Third, the decision below is clearly erroneous, will cause material injustice, and is in

conflict with Supreme Court decisions, including Palm, supra. MCR 7.302(B)(5). In denying

Miller’s retroactivity, the court of appeals disregarded and misapplied Supreme Court precedents,

including Teague v Lane, 489 US 288; 109 S Ct 1060 (1989), and progeny, by finding Miller’s

holding procedural and not substantive.

The court’s retroactivity decision causes Raymond and over 360 similarly situated

juvenile offenders to continue to serve a cruel and unusual sentence, in violation of the

substantive guarantees against such sentences provided by the Eighth Amendment and the

Michigan Constitution. Const 1963, art I, § 16. In addition, other state courts and federal courts

are currently ruling on both sides of the Miller retroactivity question. Michigan trial courts

iv

require a clear direction from the state’s highest court.

Raymond seeks leave to appeal the lower court’s erroneous decision rejecting his claims

of ineffective assistance of counsel, for his trial attorney’s failure to investigate and offer

evidence of Raymond’s suicide attempt one week after Ms. McNeely’s murder; as well as the

attorney’s failure to proffer evidence of duress. Finally, he seeks to appeal the denial of his claim

that the convergence of the mandatory life sentence for first-degree homicide, the lack of

availability of a duress defense, and the accomplice liability statute causes a grossly unjust result,

resulting in a denial of due process and a violation of the principle of proportionality.

Defendant-Appellant Raymond Carp asks this Honorable Court to grant this application

for leave to appeal or grant any other appropriate peremptory relief.

Respectfully submitted,

__________________________Patricia L. Selby (P70163)Attorney for Defendant-AppellantSelby Law Firm, PLLCPO Box 1077Grosse Ile, MI 48138(734) 624-4113

Dated: January 9, 2013

v

STATEMENT OF QUESTIONS PRESENTED

I. WHERE MILLER V ALABAMA ESTABLISHES A SUBSTANTIVE NEWRULE, DID THE COURT OF APPEALS ERR AND RULE IN CONFLICTWITH SUPREME COURT PRECEDENT WHEN IT HELD THATMILLER V ALABAMA SHOULD NOT BE APPLIED RETROACTIVELYTO DEFENDANT-APPELLANT?

The People would answer “No.”Defendant-Appellant answers “Yes.”

II. WAS THE COURT OF APPEALS’ CREATION OF A DISCRETIONARYSENTENCING PROCEDURE IN COMPLETE DISREGARD OFLEGISLATIVE INTENT AND SEPARATION OF POWERS, LEGALPRINCIPLES OF MAJOR SIGNIFICANCE TO THIS STATE'SJURISPRUDENCE?

The People would answer “No.”Defendant-Appellant answers “Yes.”

III. DID THE COURT BELOW ERR IN REJECTING THE SENTENCE OFMCL 750.317 AS THE ONLY CONSTITUTIONALLY AVAILABLE,MILLER-COMPLIANT, PROPORTIONATE PENALTY THAT RESPECTSMICHIGAN’S LEGISLATIVE INTENT AND THE SEPARATION OFPOWERS, WHEN THE NON-PAROLABLE LIFE SENTENCE OF 750.316CANNOT BE VALIDLY IMPOSED ON JUVENILE OFFENDERS?

The People would answer “No.”Defendant-Appellant answers “Yes.”

IV. WAS THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’SMOTION FOR RELIEF FROM JUDGMENT ERRONEOUS AND ANABUSE OF DISCRETION, WHERE HE WAS ENTITLED TO THEPRESENTATION OF SUBSTANTIAL DEFENSES AND EFFECTIVEASSISTANCE OF COUNSEL, BUT HIS TRIAL ATTORNEY FAILED TOPROFFER EVIDENCE OF DURESS TO PRESERVE THE RECORD?

The trial court would answer “No.”The People would answer “No.”Defendant-Appellant answers “Yes.”

V. WAS THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’SMOTION FOR RELIEF FROM JUDGMENT ERRONEOUS AND ANABUSE OF DISCRETION, WHERE HE WAS ENTITLED TO THEPRESENTATION OF SUBSTANTIAL DEFENSES AND EFFECTIVEASSISTANCE OF COUNSEL, BUT HIS TRIAL ATTORNEY FAILED TOINVESTIGATE OR OFFER EVIDENCE OF HIS SUICIDE ATTEMPT,

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TREATMENT, AND RELATED STATEMENTS AS THEY RELATED TOHIS STATE OF MIND?

The trial court would answer “No.”The People would answer “No.”Defendant-Appellant answers “Yes.”

VI. DID THE TRIAL COURT ERR IN FINDING NO VIOLATION OFDEFENDANT-APPELLANT’S DUE PROCESS RIGHTS OR THEPRINCIPLE OF PROPORTIONALITY, WHEN MCL 767.39 PROVIDESNO DISTINCTION BETWEEN THE ACTS OF AN AIDER/ABETTORAND THOSE OF A PRINCIPAL, THE DEFENSE OF DURESS WASDENIED, AND THE MANDATORY IMPOSITION OF LIFE WITHOUTPAROLE PERMITTED NO CONSIDERATION OF OR MITIGATIONFOR REDUCED CRIMINAL RESPONSIBILITY?

The trial court would answer “No.”The People would answer “No.”Defendant-Appellant answers “Yes.”

vii

TABLE OF CONTENTS

JUDGMENT APPEALED FROM AND RELIEF SOUGHT ..................................................ii

STATEMENT OF QUESTIONS PRESENTED........................................................................v

INDEX OF AUTHORITIES.......................................................................................................ix

STATEMENT OF FACTS ...........................................................................................................1

INTRODUCTION........................................................................................................................9

ARGUMENT .............................................................................................................................. 11

I. WHERE MILLER V ALABAMA ESTABLISHES A SUBSTANTIVE NEW RULE,THE COURT OF APPEALS HOLDING THAT IT DOES NOT APPLYRETROACTIVELY TO DEFENDANT-APPELLANT IS ERRONEOUS AND INCONFLICT WITH SUPREME COURT PRECEDENT. .............................................11

II. THE COURT OF APPEALS’ CREATION OF A DISCRETIONARYSENTENCING PROCEDURE IS IN COMPLETE DISREGARD OFLEGISLATIVE INTENT AND SEPARATION OF POWERS, LEGALPRINCIPLES OF MAYJOR SIGNIFICANCE TO THIS STATE'SJURISPRUDENCE. ......................................................................................................... 18

III.THE COURT BELOW ERRED IN REJECTING THE SENTENCE OF MCL750.317 AS THE ONLY CONSTITUTIONALLY AVAILABLE, MILLER-COMPLIANT, PROPORTIONATE PENALTY THAT RESPECTSMICHIGAN’S LEGISLATIVE INTENT AND THE SEPARATION OFPOWERS, WHEN THE NON-PAROLABLE LIFE SENTENCE OF 750.316CANNOT VALIDLY BE IMPOSED ON JUVENILE OFFENDERS......................... 21

IV. THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’S MOTIONFOR RELIEF FROM JUDGMENT WAS ERRONEOUS AND AN ABUSE OFDISCRETION, WHERE HE WAS ENTITLED TO THE PRESENTATION OFSUBSTANTIAL DEFENSES AND EFFECTIVE ASSISTANCE OF COUNSEL,BUT HIS TRIAL ATTORNEY FAILED TO PROFFER EVIDENCE OFDURESS TO PRESERVE THE RECORD.................................................................... 30

V. THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’S MOTIONFOR RELIEF FROM JUDGMENT WAS ERRONEOUS AND AN ABUSE OFDISCRETION, WHERE HE WAS ENTITLED TO THE PRESENTATION OFSUBSTANTIAL DEFENSES AND EFFECTIVE ASSISTANCE OF COUNSEL,BUT HIS TRIAL ATTORNEY FAILED TO INVESTIGATE OR OFFEREVIDENCE OF HIS SUICIDE ATTEMPT, TREATMENT, AND RELATEDSTATEMENTS AS THEY RELATED TO HIS STATE OF MIND............................. 39

viii

VI. THE TRIAL COURT ERRED IN FINDING NO VIOLATION OFDEFENDANT-APPELLANT’S DUE PROCESS RIGHTS OR THE PRINCIPLEOF PROPORTIONALITY, WHEN MCL 767.39 PROVIDES NO DISTINCTIONBETWEEN THE ACTS OF AN AIDER/ABETTOR AND THOSE OF APRINCIPAL, THE DEFENSE OF DURESS WAS DENIED, AND THEMANDATORY IMPOSITION OF LIFE WITHOUT PAROLE PERMITTEDNO CONSIDERATION OF OR MITIGATION FOR REDUCED CRIMINALRESPONSIBILITY. ......................................................................................................... 44

SUMMARY AND RELIEF.......................................................................................................48

APPENDICES ............................................................................................................................ 49

ix

INDEX OF AUTHORITIES

Cases

AFSCME v City of Detroit, 468 Mich 388; 662 NW2d 695 (2003) ............................................. 20Alexander v Birkett, 228 Fed.Appx. 534 (CA 6 2007).................................................................. 23Allen v Hardy, 478 US 255; 106 S Ct 2878 (1986) ...................................................................... 14Atkins v Virginia, 536 US 304; 122 S Ct 2242 (2002) .................................................................. 12Batson v Kentucky, 476 US 79; 106 S Ct 1712 (1986) ................................................................. 14Blank v Dept of Corr, 462 Mich 103; 564 NW2d 130 (2000) ...................................................... 25Bousley v United States, 523 US 614 (1998) ................................................................................ 15Boyd v Commonwealth, 550 SW2d 507 (Ky 1977)...................................................................... 29Carey v Garrison, 452 F Supp 485 (D NC 1978)......................................................................... 28Carey v North Carolina, 428 US 904; 96 S Ct 3209 (1976)......................................................... 28Chegwidden v Kapture, 92 Fed Appx 309 (CA 6 2004) ............................................................... 33Citizens for Logical Alternatives v Clare County Bd. of Com’rs, 211 Mich App 494; 536 NW2d

286 (1995)................................................................................................................................. 24Commonwealth v Bradley, 449 Pa 19 (1972) ............................................................................... 28Crawford v Washington, 541 US 36; 124 S Ct 1354 (2004)......................................................... 13Danforth v Minnesota, 552 US 264; 128 S Ct 1029, 1045 (2008) ............................................... 16Douglas v California, 372 US 353, 83 S Ct 814 (1963)............................................................... 36English v Romanowski, 589 FSupp2d 893 (ED Mich 2008) .................................................. 33, 40Evitts v Lucey, 469 US 387; 105 S Ct 830, 83 LEd2d 821 (1985) ............................................... 36Ex parte Vitali, 153 Mich 514; 116 NW 1066 (1908)................................................................... 26Foster v Booker, 595 F.3d 353 (CA 6 2010) ................................................................................. 23Furman v Georgia, 408 US 238 (1972) .................................................................................. 14, 28Geter v Florida, ___ So 3d ___ (Fla App, 3 Dist, 2012) (WL 4448860) ..................................... 18Gideon v Wainwright, 372 US 335; 83 S Ct 792 (1963)............................................................... 36Gonzalez v Florida, ___ So 3d (Fla App, 1 Dist, 2012) (WL 5233454)....................................... 18Graham v Florida, 560 US, at ––; 130 S Ct 2011 (2010)......................................................... 9, 10Hutchison v Bell, 303 F3d 720 (CA 6 2002)................................................................................. 33In re Jenkins, 438 Mich 364; 475 NW2d 279 (1991) ................................................................... 26In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295;

806 NW2d 683 (2011) ........................................................................................................ 19, 24Kimmelmann v Morrison, 477 US 365; 106 S Ct 2574 (1986) .................................................... 32Linkletter v Walker, 318 US 618; 85 S Ct 1731 (1965) ................................................................ 14Lockett v Ohio, 438 US 586; 98 S Ct 2954 (1978) ....................................................................... 13Mapes v Coyle, 171 F3d 408 (CA 6 1999) ............................................................................... 37, 42Martin v Rose, 744 F.2d 1245 (CA 6 1984) .................................................................................. 34McConnell v Rhay, 393 US 2 (1968) ............................................................................................ 16Murray v Carrier, 477 US 478; 106 S Ct 2639; 91 LEd2d 397 (1986) ....................................... 36Omne Fin, Inc v Shacks, Inc, 460 Mich 305; 596 NW2d 591 (1999) .......................................... 20Penry v Lynaugh, 492 US 302; 109 S Ct 2934 (1989) ........................................................... 12, 13People v Ackerman, 257 Mich App 434; 669 NW2d 818 (2003) ................................................. 33People v Babcock, 469 Mich 247; 666 NW2d 231 (2003) ........................................................... 23People v Bachynski, unpublished opinion of the Michigan Court of Appeals, issued March 19, 2009

x

(Docket No 281550), 2009 WL 723600 ............................................................................... 41, 46People v Bearss, 463 Mich 623; 625 NW2d 10 (2001)................................................................ 27People v Carp, __ NW2d __, 2012 WL 5846553 (Nov. 15, 2012), Docket No. 307758. ..... passimPeople v Carp, unpublished opinion of the Michigan Court of Appeals, Docket No. 275084,

2008 WL 5429890 (Mich App December 30, 2008) .................................................................. 7People v Carp, unpublished order of the Supreme Court issued June 23, 2009 (Michigan Supreme

Court Docket No. 138299)......................................................................................................7, 11People v Carson, 220 Mich App 662; 560 NW2d 657 (1996) ..................................................... 23People v Carter, 395 Mich 434; 236 NW2d 500 (1975) .............................................................. 27People v Clark, 274 Mich App 248; 732 NW2d 605 (2007) ........................................................ 27People v Coles 417 Mich 523 (1983) ........................................................................................... 16People v Conat, 238 Mich App 134; 605 NW2d 49 (1999) ......................................................... 20People v Conley, 270 Mich App 301; 715 NW2d 377 (2006)...................................................... 24People v Davis, 43 NY2d 17 (1977)............................................................................................. 29People v Dittis, 157 Mich App 38 (1987) ..................................................................................... 30People v Drohan, 475 Mich 140; 715 NW2d 778 (2006) ............................................................ 23People v Farrell, 146 Mich 264; 109 NW 440 (1906) ................................................................. 26People v Garcia, 448 Mich 442; 531 NW2d 683 (1995) .......................................................... 38, 46People v Gardner, 482 Mich 41; 753 NW2d 78 (2008)............................................................ 36, 42People v Gomez, 295 Mich App 411; 820 NW2d 217 (2012) .......................................................11People v Gorecki, 2008 WL 4604396, unpublished opinion of the Michigan Court of Appeals,

issued Oct. 8, 2008) Docket No. 277448 .................................................................................... 1People v Grant, 445 Mich 535; 520 NW2d 123 (1994)). ................................................. 31, 32, 36People v Hall, 396 Mich 650; 242 NW2d 377 (1976).................................................................. 20People v Harris, unpublished opinion of the Michigan Court of Appeals, Docket No. 287724, 2010

WL 2925380 (Mich App July 27, 2010)............................................................................... 38, 45People v Head, 211 Mich App 205; 535 NW2d 563 (1995)......................................................... 46People v Hoag, 460 Mich 1; 594 NW2d 57 (1999) ...................................................................... 33People v Hoyt, 185 Mich App 531; 462 NW2d 793 (1990) ......................................................... 33People v Hubbard, 156 Mich App 712; 402 NW2d 79 (1986)..................................................... 33People v Hurst (After Remand), 169 Mich App 160; 425 NW2d 752 (1988) .............................. 23People v Hutcherson, 415 Mich 854; 327 NW2d 922 (1982) ...................................................... 27People v Hyland, 212 Mich App 701; 538 NW2d 465 (1995), vac’d in part on other grounds,

453 Mich 902 (1996) .......................................................................................................... 33, 40People v Kelly, 186 Mich App 524; 465 NW2d 569 (1990)................................................... 33, 40People v LeBlanc, 465 Mich 575; 640 NW2d 246 (2002) ........................................................... 31People v Lee, 14 Mich App 328; 165 NW2d 518 (1968) ............................................................. 27People v Lemons, 454 Mich 234; 562 NW2d 447 (1997) ............................................................ 35People v Lewis, 64 Mich App 175; 235 NW2d 100 (1975), lv den 395 Mich 810 (1975) ........... 33People v Lockett, 295 Mich App 165; 814 NW2d 295 (2012) ..................................................... 27People v Matuszak, 263 Mich App 42; 687 NW2d 342 (2004).................................................... 31People v Maxson, 482 Mich 385, 392; 759 NW2d 817, 822 (2008) .................................11, 16, 17People v McGhee, 268 Mich App 600; 709 NW2d 595 (2005) ...................................................... 40People v McSwain, 259 Mich App 654; 676 NW2d 236 (2003)............................................... 37, 43People v Merhige, 212 Mich 601; 180 NW 418 (1920) ............................................................... 46People v Miles, 454 Mich 90; 559 NW2d 299 (1997) ............................................................ 26, 27

xi

People v Moore, 131 Mich App 416; 345 NW2d 710 (1984)....................................................... 40People v Moore, 468 Mich 573; 664 NW2d 700 (2003) .............................................................. 26People v Morfin, __ NE 2d __; 2012 IL App (1st) 103568, 2012 WL 6028634 (Nov. 30, 2012) 18People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971)................................................... iii, 23People v Palm, 245 Mich 396; 223 NW 67 (1929) ........................................................... iii, 19, 20People v Paquette, 214 Mich App 336; 543 NW2d 342 (1995) .................................................. 41People v Payne, 285 Mich App 181; 774 NW2d 714 (2009) ....................................................... 33People v Pickens, 446 Mich 298; 521 NW2d 797 (1994) ............................................................ 32People v Plummer, 229 Mich App 293; 581 NW2d 753 (1998) ..................................................... 41People v Randolph, 466 Mich 532; 648 NW2d 164 (2002) ......................................................... 28People v Reed, 449 Mich 375 (1995)............................................................................................ 36People v Schollaert, 194 Mich App 158; 170, 486 NW2d 312 (1992)......................................... 41People v Sharp, 9 Mich App 34; 155 NW2d 719 (1968) ............................................................. 27People v Snyder, 108 Mich App 754; 310 NW2d 868 (1981) ...................................................... 40People v Swain, 288 Mich App 609; 794 NW2d 92 (2010) ......................................................... 31People v Todd, 201 Mich App 216; 506 NW2d 9 (1993) ............................................................. 28People v Todd, 444 Mich 936 (1994)............................................................................................ 28People v Whalen, 412 Mich 166; 312 NW2d 638 (1981)............................................................. 27People v Williams, __ NE 2d __; 2012 IL App (1st) 111145 (Nov. 27, 2012) 2012 WL 620640718People v Williams, 223 Mich App 409; 566 NW2d 649 (1997) ................................................... 32People v Williams, 475 Mich 101; 715 NW2d 24 (2006)............................................................. 27People v Wolfe, 338 Mich. 525; 61 NW 2d 767 (1953) ................................................................ 20Riley v Jones, 476 FSupp2d 696 (ED Mich 2007).................................................................... 37, 42Ring v Arizona, 536 US 584 (2002)........................................................................................ 13, 14Robinson v City of Lansing, 486 Mich 1; 782 NW2d 171 (2010) ................................................ 19Robinson v Neil, 409 US 505; 93 S Ct 876 (1973) ....................................................................... 14Rutledge v United States, 517 US 292, 306; 116 S Ct 1241 (1996) ............................................. 27Saffle v Parks, 494 US 484; 110 S Ct 1257 (1990)........................................................... 12, 13, 15Schriro v Summerlin, 542 US 348; 124 S Ct 2519 (2004) .................................................. 12, 13, 14State v Davis, 290 NC 511; 227 SE2d 97 (1976).......................................................................... 28State v Lee, 340 So 2d 180 (La 1976) ........................................................................................... 29Strickland v Washington, 466 US 668; 104 S Ct 2052 (1984) ...................................................... 32Sumner v Shuman, 483 US 66; 107 S Ct 2716 (1987)............................................................ 13, 14Teague v Lane, 489 US 288; 109 S Ct 1060 (1989) ............................................................... 12, 15Towns v Smith, 395 F3d 251 (CA 6 2005) ...................................................................................... 40Waller v Florida, 397 US 387; 90 S Ct 1184 (1970) .................................................................... 14Washington v Hofbauer, 228 F3d 689 (CA 6 2000) ..................................................................... 33Whorton v Bockting, 549 US 406; 127 S Ct 1173 (2007)............................................................. 13Woodson v North Carolina, 428 US 280; 96 S Ct 2978 (1976)........................................ 10, 13, 28

Statutes

MCL 333.17764 ............................................................................................................................ 23MCL 750.18 .................................................................................................................................. 23MCL 750.316.......................................................................................................................... passimMCL 750.317 .......................................................................................................................... 21, 29MCL 750.356(3)(a)...................................................................................................................... ii, 1

xii

MCL 750.360............................................................................................................................... ii, 1MCL 750.503........................................................................................................................... 26, 29MCL 750.505........................................................................................................................... 26, 29MCL 750.520b .............................................................................................................................. 23MCL 750.530............................................................................................................................... ii, 1MCL 769.1 ................................................................................................................... iii, 22, 25, 29MCL 791.234 ................................................................................................................ 8, 22, 23, 25MCL 8.5 .................................................................................................................................. 19, 25

Rules

MCR 6.508............................................................................................................................. passimMRE 103................................................................................................................................. 34, 38MRE 803....................................................................................................................................... 42

STATEMENT OF FACTS

The charges in this case arose from the May 31, 2006 murder of MaryAnn McNeely.

Defendant-Appellant Raymond Carp was charged with four felonies: open murder (first degree or

felony-murder),6 armed robbery,7 larceny in a building,8 and larceny of property worth more than

$1000 but less than $20,000.9 Fifteen years of age at the time of the offense, Raymond was charged

as an adult under the automatic juvenile waiver. ST, 10,1110; MCL 712A.2(a)(1)(A). His half-

brother, Brandon Gorecki, seven years older, was convicted of first-degree murder and torture,

among other crimes,11 arising out of the same incident.

Raymond was tried before a jury, and convicted of all four counts on October 4, 2006, in St.

Clair County Circuit Court, the Honorable James. P. Adair presiding. On November 20, 2006, the

Court sentenced him on the conviction for homicide to life without parole, with credit for 165 days

served. ST, 14. As to the underlying felony convictions, Raymond received 15 to 30 years for the

armed robbery count, one to four years for larceny in a building, and one to five years for larceny of

$1,000 or more. Id. Raymond had no juvenile or adult criminal record before this incident.

This recitation addresses those facts and procedural history pertinent to Raymond’s motion

for relief from judgment, MCL 6.501, et seq., which was denied by the trial court and which denial

6 MCL 750.316.7 MCL 750.530.8 MCL 750.360.9 MCL 750.356(3)(a).10 ST is the Sentencing Transcript. Trial transcripts are listed as T I, T II, etc., corresponding with days oftrial. Arraignment Transcript is Arr’t T.11 Gorecki was convicted at a jury trial of first-degree murder, MCL 750.316(1)(a), torture, MCL 750.85,armed robbery, MCL 750.529, larceny in a building, MCL 750.360, and larceny of more than $1,000,MCL 750.356(3)(a). His convictions were upheld by the Michigan Court of Appeals, People v Gorecki,2008 WL 4604396, unpublished opinion of the Michigan Court of Appeals, issued Oct. 8, 2008) DocketNo. 277448. The Michigan Supreme Court denied leave to appeal in an Order dated March 23, 2009.

2

was affirmed by the court of appeals on November 15, 2012. (App. A.)

Trial Testimony

Brandon Gorecki, Defendant Carp’s older half-brother, was staying with Mary Ann

McNeely after being kicked out of the home of Margie Carp, Gorecki and Raymond’s mother. T

IV, 818; see also T II 339, 371, 398. Raymond visited Ms. McNeely’s home on the evening of

May 31, 2006, because Gorecki’s girlfriend and baby daughter, Raymond’s niece, were there.

Raymond had a good relationship with Ms. McNeely, and referred to her as his aunt. T II 373-75,

396, 433.

Gorecki was kicked out of his mother’s home over his drug use and violent history. T III

431. Gorecki was intimidating to the people who lived with him; his mother and her boyfriend both

testified that they were afraid of Gorecki. T II 372-72, 375-78, 398. Gorecki’s girlfriend, Shavaun

Fink, testified that she had been in previous fights with Gorecki, and was also afraid of him. T IV,

831. She described Gorecki as a high school dropout with a heroin problem. Id. at 819.

During the evening of May 31, a fight arose between Gorecki and Shavaun, when Gorecki

attempted to take Shavaun’s car keys. T IV, 795. Gorecki grabbed Shavaun by her throat twice. Id.

Ms. McNeely helped pull Gorecki off Shavaun. Id. at 808, 834. During the fight, Raymond stood

there passively. Id. at 808-09. Shavaun left shortly thereafter with her daughter. Id. at 809.

After Shavaun left, the fight between Gorecki and Ms. McNeely escalated, and Ms.

McNeely was killed. The Medical Examiner for St. Clair and Macomb Counties, Dr. Spitz,

testified as to the nature of Ms. McNeely’s wounds. He described stab wounds to the hands, T

III, 646, blunt injuries, id. at 647, and 21 lacerations to the face and scalp. Id. at 650-51. Other

stab wounds were found in the lower extremities. Id. at 636. As to the cause of death, Dr. Spitz

testified that it was multiple stab wounds, the perforation of the carotids and the right jugular

3

vein, as well as a contributory cause of multiple blunt impacts resulting in cranial/cerebral

injuries. Id. at 663. In response to the prosecutor’s question, he stated that the blunt injuries alone

would have been sufficient to cause death. Id.

At issue in Raymond’s trial was the degree of his participation in Ms. McNeely’s murder.

Witness Kelly Smith testified that he had told her that he had thrown a mug at Ms. McNeely, and

had shut the windows or blinds at Gorecki’s direction. T V, 964-66. Smith testified Raymond told

her that he held Mary Ann down while Gorecki beat her, id. at 967, and he handed Gorecki a knife.

Id. at 980-81. Trooper Tuckey testified about following up on a tip Smith gave the State Police, that

they would find clothes near the school and trailer park. Id. at 921. Nothing was found. Id.

Witnesses testified that Raymond was visibly upset and crying when he talked about the

murder later. T III, 745-46. Smith said he told her he felt helpless and guilty as the attack happened.

T V, 991-94. He was not bragging or excited about it. Id. at 992.

Michigan State Police Det. Sgt. Young testified that testing found no blood on the clothes

Raymond wore that night, id. at 1022, but it was present on Gorecki’s clothes. Id. at 1031. Young

had interviewed Raymond, and a video of that interview was played for the jury.

In the interview, Raymond described Gorecki as “mad as hell,” grabbing Ms. McNeely by

the hair, and hitting her. Id. at 1086-87. As when Shavaun and Gorecki were fighting, Raymond

said he “just sat down and stared at the wall.” Id. at 1087. Raymond did acknowledge hitting Ms.

McNeely with the cup, T VI, 1288, and closing the blinds. Id. at 1292. Asked if he then stood back

and watched, he answered, “Yeah.” Id. at 1296.

Finally, Gorecki took the stand. Asked if Raymond argued with him about closing the

drapes, Gorecki answered that Raymond had never argued with him about anything. T VI, 1436.

Asked if he held a gun to Raymond’s head, he said, “Basically.” Id. at 1438. Gorecki denied

4

expressly threatening Raymond, but did say that maybe he felt threatened. Id. at 1462-63.

In addition to the first-degree murder charge, Raymond was charged with armed robbery,

larceny in a building, and larceny of property worth more than $1000 but less than $20,000, over

the theft after the murder of Ms. McNeely’s truck, VCR, and DVD. No evidence was offered

linking Raymond directly to those thefts, and defense counsel moved for a directed verdict on the

non-homicide charges after the defense rested. T VI, 1468-1470. The Court denied the motion.

Id. at 1475.

On the fourth day of trial, the plea offer made to Raymond was entered into the record.

Raymond was offered one count of second-degree murder, which the prosecutor stated could

result in “as little as 15 years.” T IV, 901. No voir dire was conducted. Raymond’s defense

attorney reported to the court that Raymond “knows what’s going on, he understands what’s

going on, and has instructed me to reject the People’s plea offer of – as offered.” Id. at 911.

The jury was instructed, inter alia, in aiding and abetting, first-degree premeditated

murder, first-degree felony murder, and second-degree murder. T VII 1597-1602. It found

Raymond guilty of first-degree murder, armed robbery, and the two larceny counts. The verdict

form listed first-degree murder without noting or explaining the alternate theories of

premeditation or felony-murder. T VII 1607; App. 9. It also listed second-degree murder. Id.

Ruling Against Duress as a Defense

At trial, Raymond’s (retained) attorney attempted to argue duress, but the trial court rejected

the defense. T I, 194, 196. Defense counsel argued that duress addressed the defendant’s lack of

intent, as intent is a requirement under first degree murder. T II, 298. The trial court ruled against

the request, stating that “duress is not a defense to homicide.” Id. at 306.

Trial counsel initially suggested that he be permitted to offer evidence on the topic. Id. at

5

305. He suggested that would permit the court to determine whether the evidence supported a duress

instruction; alternatively, a curative instruction to disregard that testimony could be given. Id. at

296. Defense counsel observed that without the facts, the court is “in a bind,” and “operating in a

vacuum.” Id. at 305.

The defense also sought to enter the testimony of an expert witness, Dr. Fenton, as to the

relationship between Raymond and his half-brother and co-defendant Gorecki. T II, 307. Again, this

was denied.

When the court ruled against the request for the duress defense, defense counsel did not

make a proffer of evidence. Nor did he seek to make a proffer of the expert’s testimony.

Raymond’s suicide attempt following Ms. McNeely’s murder

Mary Ann McNeely was murdered on May 31, 2006. One week later, on June 6, 2006,

Raymond was admitted to Harbor Oaks Hospital, having attempted suicide by slitting his wrists.

App. 4,12 Gregory Aff, ¶¶ 3, 4. In repeated statements to his physician, Dr. Kristyn Gregory, and

nurses, Raymond stated that saw his brother kill their mother’s best friend, a woman he regarded

as his aunt. Id., ¶ 5; Exs. A, B, D, E.

Raymond reported nightmares, that every time he closed his eyes, he saw the murder

again. Id., ¶ 6; Exs. B,C. Witnesses at trial reported that he had told them the same thing. T III,

739-43, 749-51. He expressed guilt over not stopping his brother, but also for turning his brother

in. App 4. Gregory Aff., ¶ 5; Ex. A, B, D.

The initial assessment indicated a stay of five days for Raymond’s treatment. Id., Ex. A.

However, less than 48 hours after his admission, Raymond was removed from Harbor Oaks by a

state police officer. Id., ¶ 11; Ex. F.

12 Numbered appendices are not attached, but are part of the court of appeals record below. Numbering isconsistent with the pleadings before the lower court.

6

Dr. Gregory was prepared to testify to Raymond’s suicide attempt and statements made

while at Harbor Oaks. Id., ¶ 13. She expected to be contacted by defense counsel, but never was. Id.,

¶ 12. Defense counsel was generally aware of the suicide attempt, as he referred to “some issues

about suicide with my client” during a July 24, 2006, arraignment and pre-trial conference. Arr’t T,

7.

Sentencing

Raymond was sentenced to life without parole by the trial court on November 20, 2006. ST

14. At sentencing, the judge said

The Court can’t help but note that there were several opportunities that thisDefendant had to, to escape, leave, get away, assist her in some way, and I – there’sjust – I can’t find an explanation that I – for the fact that he didn’t do that, from thetestimony, the evidence that I heard during the course of this trial. There’s nothingthat I can muster or conjure up to explain to me why he didn’t do that. I know there’sstrong discussion that he was under the influence of his stepbrother who was a badactor to say the least, but this 15-year-old and then now 16-year-old, certainly hadthe sufficient faculties that he – there’s no reason why he couldn’t understand whatwas going on and what he, what he could have or should have done, and theunfortunate conclusion is that the victim is dead, and I believe that under thecircumstances the, the conviction is proper, it’s within the law, and is then for theCourt obligated to follow the law.

ST, 13-14.

Procedural History

Raymond was represented on direct appeal by appointed counsel, who raised six grounds for

relief. Those grounds were denial of due process by trial court’s exclusion of defense’s theory of

duress; exclusion of evidence of threatening conduct by and his past relationship with Butchie’s

co-defendant, as it related to Butchie’s state of mind; prosecutorial misconduct in the forms of

improper cross-examination and bolstering of witness testimony, and denigration of the defense

during closing; admission of photographs substantially more prejudicial than probative; and

double jeopardy.

7

All were denied. People v Carp, unpublished opinion of the Michigan Court of Appeals,

Docket No. 275084, 2008 WL 5429890 (Mich App December 30, 2008). This Court rejected his

application for leave to appeal “because [it was] not persuaded that the questions presented should

be reviewed by this Court.” People v Carp, unpublished order of the Supreme Court issued June 23,

2009 (Michigan Supreme Court Docket No. 138299).

Defendant-Appellant Carp filed a motion for relief from judgment pursuant to Michigan

Court Rules 6.500, et seq., with the trial court. In that motion, Raymond raised four grounds for

relief: ineffective assistance of counsel for failing to proffer evidence of duress and failing to

investigate or offer evidence of his suicide attempt, treatment, and related statements as they

pertained to his state of mind; violation of due process and the principle of proportionality when

MCL 767.39 provides no distinction between the acts of an aider/abettor and those of a principal,

the defense of duress was denied, and the mandatory imposition of life without parole permitted no

consideration or mitigation for reduced criminal responsibility; and that the imposition of juvenile

life without parole was a violation of both federal and Michigan constitutional protections against

cruel and/or unusual punishments.

The trial court denied Raymond’s motion, and he filed an application for leave to appeal.

The court of appeals denied leave on June 8, 2012. (App. B.) On June 25, the United States

Supreme Court decided Miller v Alabama/Jackson v Hobbs, 567 US ___; 132 S Ct 2455; 183 L

Ed 2d 407 (2012). In Miller v Alabama, the Court held that the mandatory imposition of a life

without parole sentence on a juvenile violates the Eighth Amendment

Following a motion for reconsideration and to supplement authority, the court of appeals

granted leave. (App. C.) It ordered the parties to address issues associated with Michigan’s

statutory sentencing scheme which imposes mandatory life without parole on juveniles convicted

8

of first-degree murder, including the appropriate remedy and procedure, and whether Miller

should be applied retroactively. Id. Five entities submitted amicus briefs: the Criminal Defense

Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan, at the court’s

invitation in its Aug. 9 order; and on motion, the State Appellate Defenders Office, the American

Civil Liberties Union of Michigan, and the Michigan Attorney General.

On October 16, 2012, the court of appeals held oral argument, which exceeded three

hours in duration. In addition to the parties, representatives of all amici were invited and

participated as well. On November 15, 2012, the court of appeals issued an opinion denying the

retroactivity of Miller as a procedural new rule, not substantive, and not watershed. People v

Carp, __ NW2d __, 2012 WL 5846553 (Nov. 15, 2012), Docket No. 307758.13 (App. A.)

The court also determined that the only Michigan sentencing-related statute that offends

Miller is MCL 791.234(6)(a). Id. at 36. That statute, prohibiting parole eligibility for convictions

of first-degree homicide, may not be applied to juveniles. Id. Finally, the court held that when

sentencing a juvenile for homicide, the court must

at the time of sentencing, evaluate and review those characteristics of youth andthe circumstances of the offense as delineated in Miller and this opinion indetrmining whether following the imposition of a life sentence the juvenile is tobe deemed eligible or not eligible for parole. We further hold that the ParoleBoard must respect the sentencing court’s decision by also providing ameaningful determination and review when parole eligibility arises.

Id. at 40-41.

The orders for which Defendant-Appellant Carp seeks leave to appeal are the court of

appeals’ November 15, 2012, opinion denying Miller-related relief, along with its June 8, 2012,

denial of leave to appeal those grounds of the 6.500 motion not associated with juvenile life

without parole.

13 All references in this brief to the Carp slip opinion are to this document.

9

INTRODUCTION

Miller v Alabama holds that mandatory juvenile life without parole violates the EighthAmendment’s prohibition on cruel and unusual punishment.

Miller v Alabama/Jackson v Hobbs struck down the life without parole (LWOP)

sentences of two juveniles convicted of homicide, which were imposed under mandatory statutes

that precluded any individualized consideration. 132 S Ct 2455 (2012). The Court held that such

a scheme imposed on minors violated the Eighth Amendment. The Court analogized life without

parole for juveniles to the death penalty. Id. at 2464. It established that equivalence by observing

that

“[i]mprisoning an offender until he dies alters the remainder of his life ‘by aforfeiture that is irrevocable.’ And this lengthiest possible incarceration is an‘especially harsh punishment for a juvenile,’ because he will almost inevitablyserve ‘more years and a greater percentage of his life in prison than an adultoffender.’”

Id. (quoting Graham v Florida, 560 US __;130 S Ct 2011, 2027-28 (2010)) (internal citation

omitted). The Miller Court also drew on “categorical bans on sentencing practices based on

mismatches between the culpability of a class of offenders and the severity of a penalty.” 132 S

Ct at 2463 (citing Graham, 130 S Ct at 2022-23)). Many of these “mismatch” cases involved

juvenile offenders, “because of their lesser culpability.” Id.

The Court emphasized that “children are constitutionally different from adults for

purposes of sentencing. Because juveniles have diminished culpability and greater prospects for

reform, . . . they are less deserving of the most severe punishments.” Id. at 2464 (quoting

Graham, 130 S Ct at 2026). The Court explained why the “harshest sentences” are less

justifiable for juvenile offenders under each of the standard penological principles of retribution,

deterrence, incapacitation, and rehabilitation. Id. at 2465 (citations omitted).

Miller held that juveniles must be given an opportunity for individualized sentencing that

10

includes mitigating facts about the offender and the offense. The Court explained that it rejected

the mandatory imposition of the death penalty “because it gave no significance to ‘the character

and record of the individual offender or the circumstances’ of the offense, and ‘exclud[ed] from

consideration . . . the possibility of compassionate or mitigating factors.’” Id. at 2467 (quoting

Woodson v North Carolina, 428 US 280, 304; 96 S Ct 2978 (1976)).

Similarly, mandatory LWOP sentencing schemes are flawed because “by their nature,

[they] preclude a sentencer from taking account of an offender’s age and the wealth of

characteristics and circumstances attendant to it.” Id. The Miller Court discussed the factors

critical to the juvenile sentencing decision, including (1) “chronological age and its hallmark

features . . . immaturity, impetuosity, and failure to appreciate risks and consequences;” (2) “the

family and home environment [which may be] brutal or dysfunctional;” and (3) “the

circumstances of the homicide offense,” including the extent of the juvenile’s participation and

the impact of family and peer pressure. Id. at 2468.

The Court also noted that such sentences ignore the likelihood that a young offender

“might have been charged and convicted of a lesser offense if not for incompetencies associated

with youth—for example, his inability to deal with police officers or prosecutors (including on a

plea agreement)14 or his incapacity to assist his own attorneys.” Id. It also observed that

“mandatory punishment disregards the possibility of rehabilitation even when the circumstances

most suggest it.” Id. The Court stated that the sentencing scheme need only provide the

possibility of parole, not a guarantee – thought it must be a “meaningful opportunity to obtain

release.” Id. at 2469 (Graham, 130 S Ct at 2030).

14 Raymond was offered a plea deal of one count of second-degree murder, which the prosecutor statedcould result in “as little as 15 years.” T IV, 901. No voir dire was conducted. Raymond’s defenseattorney reported to the court that Raymond “knows what’s going on, he understands what’s going on,and has instructed me to reject the People’s plea offer of – as offered.” Id. at 911.

11

Judicial discretion in juvenile transfer systems does not satisfy the Eighth Amendment.

The Court observed that the better alternative is “[d]iscretionary sentencing in adult court

[which] would provide different options: There, a judge or jury could choose, rather than a life-

without-parole sentence, a lifetime prison term with the possibility of parole or a lengthy term of

years.” Id. at 2474-75.

The Court emphasized that “a judge or jury must have the opportunity to consider

mitigating circumstances before imposing the harshest possible penalty for juveniles.” Id. at

2475. The mandatory imposition of LWOP without consideration of offenders’ “age and age-

related characteristics” as well as the circumstances of their crimes violates both the principle of

proportionality and the Eighth Amendment prohibition of cruel and unusual punishment. Id.

ARGUMENT

I. WHERE MILLER V ALABAMA ESTABLISHES A SUBSTANTIVE NEWRULE, THE COURT OF APPEALS HOLDING THAT IT DOES NOTAPPLY RETROACTIVELY TO DEFENDANT-APPELLANT ISERRONEOUS AND IN CONFLICT WITH SUPREME COURTPRECEDENT.

A. Background

Defendant-Appellant Carp was convicted at a jury trial on October 5, 2006. The court of

appeals denied his direct appeal, and this Court declined to grant his application for leave to

appeal on June 23, 2009. (Michigan Supreme Court Docket No. 138299). Raymond’s conviction

was final when Miller v Alabama was decided in June 2012.

B. Law and Analysis

1. Standard of Review

“[W]hether a United States Supreme Court decision applies retroactively presents a

question of law” that is reviewed de novo. People v Gomez, 295 Mich App 411, 414; 820 NW2d

217, 220 (2012) (citing People v Maxson, 482 Mich 385, 387; 759 NW2d 817 (2008)).

12

2. Miller applies retroactively, based on its categorical ban on mandatory life without parolefor juveniles and its reflection of substantive constitutional guarantees.

The court of appeals correctly acknowledged that Miller presented a new rule. However it

erred in finding that the rule was procedural and not substantive, and therefore did not apply

retroactively to Raymond.

Teague v Lane held that a new constitutional rule only applies retroactively if it meets

certain exceptions. 489 US 288, 310; 109 S Ct 1060 (1989). One exception is the placement of “a

class of private conduct beyond the power of the State to proscribe.” Saffle v Parks, 494 US 484,

494-95; 110 S Ct 1257, 1263 (1990) (citing Teague, 489 US at 311). Substantive rules are also

given retroactive effect; these “address[] a ‘substantive categorical guarante[e] accorded by the

Constitution,’ such as a rule ‘prohibiting a certain category of punishment for a class of

defendants because of their status or offense[.]’” Id. (quoting Penry v Lynaugh, 492 US 302, 329,

330; 109 S Ct 2934 (1989), overruled on other grounds by Atkins v Virginia, 536 US 304; 122 S

Ct 2242 (2002)). However, rules that are generally procedural in nature are only applied

prospectively. Schriro v Summerlin, 542 US 348, 352; 124 S Ct 2519 (2004).

In finding Miller not to be retroactive, the court of appeals reasoned that Miller was a

procedural rule, not substantive, and that it did not categorically bar life without parole. Carp,

slip op 25. Its procedural finding was based on Miller’s statements that it only requires “that a

sentencer follow a certain process.” Id. (quoting Miller, 132 S Ct at 2459 (syllabus), 2471.) The

court’s finding that Miller created a procedural new rule is clearly erroneous, and in conflict with

Supreme Court precedent.

First, Miller does categorically ban a form of punishment for a class of defendants due to

their status, under Penry: Miller forbids mandatory life without parole for juveniles. As a whole,

as a class, juveniles convicted of homicide can no longer have imposed upon them the mandatory

13

sentence of life without parole. That is a categorical ban based on status and offense.

Second, Miller’s admonition that the sentencer must “follow a certain process” does not

render its rule procedural. Miller’s point is that automatic or mandatory sentencing violates the

Eighth Amendment, and that individualized sentencing and the consideration of mitigating factors

are required for the constitutional imposition of life without parole. Id. at 2469, 2475. Miller thus

invokes a substantive categorical guarantee of the constitution. Saffle, supra; Penry, supra.

Third, the court of appeals explains procedural rules as those that “impact the operation

of the criminal trial process,” Carp, slip op 25; the manner of determining culpability, id.; or

issues of procedural function. Id. at 24 (all citations omitted). All these terms presuppose a

procedure exists that may be regulated or impacted. Supreme Court precedents that have been

found to be procedural include whether judge or jury finds a fact, Schriro, supra; Ring v Arizona,

536 US 584 (2002); whether certain evidence may be admitted, Whorton v Bockting, 549 US

406; 127 S Ct 1173 (2007); Crawford v Washington, 541 US 36; 124 S Ct 1354 (2004); or

address a jury instruction (Saffle, supra).

By contrast, a rule that says the state may not mandate the death penalty is not about the

procedure of individualized consideration that must be followed, but about the violation of the

Constitution’s substantive guarantee against cruel and unusual punishment. Sumner v Shuman,

483 US 66; 107 S Ct 2716 (1987). The Sumner Court observed that requiring individualized

sentencing in the death penalty context reflects a “constitutional imperative.” 483 US at 75

(quoting Woodson v North Carolina, 428 US 280, 304; 96 S Ct 2978 (1976)). Sumner applied

Woodson, as well as Lockett v Ohio, 438 US 586; 98 S Ct 2954 (1978), and Eddings v

Oklahoma, 455 US 104; 102 S Ct 869 (1982); cases on which Miller relied for its reasoning.

Miller’s holding confers the same constitutional significance on individualized sentencing in the

14

context of juvenile life without parole, making it substantive.

Admittedly, Sumner was a pre-Teague decision. However, as Miller’s reasoning relies in

significant part on those death penalty individualized sentencing decisions, 132 S Ct at 2467, the

Court’s retroactive application of these cases is pertinent. In addition, pre-Teague retroactivity

cases observed and illustrate the same procedural/substantive distinction.

In Robinson v Neil, the Court held that Waller v Florida, a Double Jeopardy case, was

fully retroactive. Robinson, 409 US 505, 511; 93 S Ct 876 (1973) (citing Waller, 397 US 387; 90

S Ct 1184 (1970)). According to Robinson, Linkletter v Walker (Teague’s precursor which

reversed the common law “general rule of retrospective effect,” Robinson, 409 US at 507), “dealt

with those constitutional interpretations bearing on the use of evidence or on a particular mode of

trial.” Id. at 507 (citing Linkletter, 318 US 618; 85 S Ct 1731 (1965)). Robinson observed that

the “procedural rights and methods of conducting trials, however, do not encompass all of the

rights found in the first eight Amendments.” Id.

Robinson characterized the Linkletter test, which limited retroactive application, as

“simply not appropriate” for “some nonprocedural guarantees.” Id. at 508 (citing Furman v

Georgia, 408 US 238 (1972) (striking the death penalty); Walker v Georgia, 408 US 936 (1973)

(applying Furman retroactively)).

Indeed, Linkletter is nowhere to be found in Sumner – although only the year before, the

case was applied by the Supreme Court in Allen v Hardy, 478 US 255, 258; 106 S Ct 2878, 2880

(1986) (holding that the rule of Batson v Kentucky, 476 US 79; 106 S Ct 1712 (1986), against

unconstitutional peremptory challenges was nonretroactive).

More recent post-Teague precedents also demonstrate that Miller’s rule is substantive,

not procedural. Schriro v Summerlin denied retroactive effect for Ring v Arizona, 536 US 584

15

(2002), finding its holding – that a jury (not a judge) must find aggravating factors necessary to

impose the death penalty – to be procedural. Schriro, 542 US at 353 (citing Ring, 536 US at

609), 358. Schriro explained that defining who must find a certain fact “is not the same as this

Court’s making a certain fact essential to the death penalty. The former was a procedural

holding; the latter would be substantive.” Id. at 354 (emphasis added). By requiring

individualized sentencing and consideration of the mitigating aspects of youth, Miller, 132 S Ct

at 2475, the Court made certain facts essential to the imposition of life without parole – a

substantive holding.

A substantive rule “alters the range of conduct or the class of persons that the law

punishes.” Schriro, 542 US at 353 (citing Bousley v United States, 523 US 614, 620-21 (1998);

Saffle, 494 US at 495). Here, by removing juveniles from the application of Michigan’s

mandatory life without parole sentencing scheme for those convicted of first-degree murder,

Miller “alter[ed] the class of persons that the law punishes.”

3. The Miller Court’s grant of relief to a petitioner on collateral review demonstrates that thedecision is to be applied retroactively.

In the Miller companion case Jackson v Hobbs, the Supreme Court itself established the

retroactivity of its decision by granting relief to Kuntrell Jackson, whose case was on collateral

review. 132 S Ct at 2461. In Teague, the Court said that to avoid inequities, it would “refuse to

announce a new rule in a given case unless the rule would be applied retroactively to the

defendant in the case and to all others similarly situated,” and that “evenhanded justice” required

such retroactivity. 489 US at 316, 300; see also Penry, 492 US at 313 (affirming this rule of

retroactive application).

Miller vacated the sentences of both its defendants. 132 S Ct at 2475. Applying Teague

and Penry, granting relief to Jackson means that the same rule should be applied retroactively to

16

all similarly-situated defendants, including Raymond.

Even the dissent in Miller presumed retroactivity, by acknowledging the over 2,000

juvenile offenders in the United States currently serving mandatory life sentences. Chief Justice

Roberts observed that “the Court’s gratuitous prediction appears to be nothing other than an

invitation to overturn life without parole sentences imposed by juries and trial judges.” 132 S Ct

at 2477, 2480, 2481 (Roberts, C.J., dissenting).

4. Miller is retroactive under Danforth v Minnesota and People v Maxson.

A state may accord broader effect to a new rule of criminal procedure than federal

retroactivity jurisprudence provides. People v Maxson, 482 Mich 385, 392; 759 NW2d 817, 822

(2008) (citing Danforth v Minnesota, 552 US 264; 128 S Ct 1029, 1045 (2008)). Michigan

applies a three-pronged rule to determine whether Miller should be applied retroactively: “(1) the

purpose of the new rules; (2) the general reliance on the old rule[;] and (3) the effect of

retroactive application of the new rule on the administration of justice.” Id. at 393.

The court of appeals erroneously found the Maxson factors militated against retroactivity.

Carp, slip op 30. First, it said that the purpose of the new rule did not correspond with guilt or

innocence or fact-finding. Id. The court disregards the purpose of Miller’s rule, which to ensure

that the only most culpable individuals are sentenced to the harshest penalties. This distinction of

culpability is part of sentencing, which is itself part of the “fact-finding” process. See McConnell

v Rhay, 393 US 2, 3-4 (1968); see also People v Coles 417 Mich 523, 535 (1983), overruled in

part on other grounds by People v Milbourn, 435 Mich 630 (1990).

On the issue of reliance, the court cited Maxson’s “extent of detrimental reliance”

measure, and found against Raymond. However, unlike Maxson’s “remarkably minimal”

reliance (where only a small fraction of those who pled guilty appealed and received relief), 482

Mich at 397, here all juvenile offenders were automatically and unconstitutionally sentenced to

17

mandatory life without parole – a sentence that Miller anticipates would be “uncommon” if

individualized sentencing had been available. The extent of detrimental reliance is significant.

Finally, the court of appeals expressed concerns over administration of justice and

Michigan’s “limited judicial resources.” Carp, slip op at 30. (citing Maxson, 482 Mich at 398).

However, the affected population is identified and limited; and the remedy is only re-sentencing,

not re-trial. Robinson, supra, minimized similar resource concerns under the same (Linkletter)

factor when it observed that Furman, supra, only denied the states the authority to impose an

unconstitutional sentence. 409 US at 509. As here, “[t]hat which was constitutionally invalid

could be isolated and excised without requiring the State to begin the entire factfinding process

anew.” Id. at 510. Justice is best served by the mitigation of excessively harsh sentences, and not

by perpetuating sentences imposed in violation of the Eighth Amendment.

5. Other states15 have found Miller retroactive, although one federal court of appealsdisagrees.

In Craig v Cain, the Fifth Circuit Court of Appeals held Miller not to be retroactive. It

found Miller’s holding not to be a categorical bar because it “bars only those sentences made

mandatory by a sentencing scheme.” Craig v Cain, Case No. No. 12-30035 (Jan. 4, 2013) (citing

Miller, 132 S Ct at 2469), App. E. For the reasons stated in this section, Defendant-Appellant

disagrees.

In People v Morfin, __ NE 2d __; 2012 IL App (1st) 103568, 2012 WL 6028634 (Nov.

15 The Louisiana Supreme Court denied the state’s appeal of a motion for resentencing granted based onMiller, where the state sought to argue against Miller’s retroactivity. The undersigned attorney has beenunsuccessful in obtaining a copy of the Court’s order or opinion, but when available, will endeavor tosupplement authority in this Court. The decision of the Louisiana Court is announced here:http://www.lasc.org/news_releases/2012/2012-077.asp (last viewed Jan. 8, 2013).

18

30, 2012), the appellate court of Illinois analyzed Miller v Alabama, and found it retroactive.16

The court “respectfully disagree[d]” with the contrary conclusion of the court of appeals in the

instant case,17 and instead found Miller’s rule substantive because “Miller mandates a sentencing

range broader than that provided by statute for minors convicted of first degree murder who

could otherwise receive only natural life imprisonment.” Id. at *11. The Morfin court found the

application of the Miller decision to Kuntrell Jackson, on collateral review, reinforcement for its

conclusion of retroactivity. Id.

Whether or not Miller is retroactive is a question that is evolving, but one of significant

interest for the state of Michigan, as it has the second highest population of juvenile offenders in

the nation who are serving life without parole sentences deemed unconstitutional by that

decision. This Court should grant leave to appeal to resolve this significant issue and provide

direction to Michigan trial courts.

II. THE COURT OF APPEALS’ CREATION OF A DISCRETIONARYSENTENCING PROCEDURE IS IN COMPLETE DISREGARD OFLEGISLATIVE INTENT AND SEPARATION OF POWERS, LEGALPRINCIPLES OF MAJOR SIGNIFICANCE TO THIS STATE'SJURISPRUDENCE.

A. Opinion below

When sentencing a juvenile . . ., for a homicide offense, the sentencing courtmust, at the time of sentencing, evaluate and review those characteristics of youthand the circumstances of the offense as delineated in Miller and this opinion indetermining whether following the imposition of a life sentence the juvenile is to

16 Another Illinois court also found Miller retroactive, under Teague’s “watershed” exception. See Peoplev Williams, __ NE 2d __; 2012 IL App (1st) 111145 (Nov. 27, 2012) 2012 WL 6206407, 14. However, italso found that “Miller . . . made a substantial change in the law in holding under the eighth amendmentthat the government cannot constitutionally apply a mandatory sentence of life without parole forhomicides committed by juveniles,” and found “instructive” Jackson’s collateral status. Id.

17 The Illinois court also disagreed with Geter v Florida, ___ So 3d ___ (Fla App, 3 Dist, 2012) (WL4448860) and Gonzalez v Florida, ___ So 3d (Fla App, 1 Dist, 2012) (WL 5233454), two cases cited bythe court of appeals, that held Miller not to be retroactive under state (not Teague) analysis.

19

be deemed eligible or not eligible for parole.

Carp, slip op 40-41. Put another way, the court of appeals held that “a sentencing court must,

considering factors of youth, have the discretion to determine whether a juvenile convicted of

homicide will have imposed on him or her the harshest penalty of life in prison without parole or

be entitled to life in prison with the possibility of parole.” Id. at 34.

The court provided no authority for this new, discretionary sentencing procedure, nor for

the basis to choose between sentences for an offender convicted under MCL 750.316. The

proposed procedure is in direct conflict with Michigan precedent and law.

B. Law and Analysis

1. Standard of Review

Constitutional issues are reviewed de novo. In re Ayres, 239 Mich App 8, 10, 608 NW2d

132, 134 (1999) (citing People v Darden, 230 Mich App 597, 600, 585 NW2d 27 (1998)).

2. Michigan precedent makes clear that sentencing discretion exists only when conferred bythe Legislature.

In Michigan, “the Legislature makes the law, the Governor executes it, and the courts

construe and enforce it.” People v Morgan, 205 Mich App 432, 433; 517 NW2d 822 (1994)

(citing People v Palm, 245 Mich 396; 223 NW 67 (1929)). This separation of powers arises out

of the Constitution: “No person exercising powers of one branch shall exercise powers properly

belonging to another branch . . . .” Const 1963, art III, § 2.

Under those principles, a court may sever unconstitutional language from a statute. MCL

8.5; In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich

295, 345, 347; 806 NW2d 683 (2011). But what it cannot do is usurp the legislature’s role, and

write language into a statute. See, e.g., Robinson v City of Lansing, 486 Mich 1, 15; 782 NW2d

171 (2010) (“[I]t is well established that we may not read into the statute what is not within the

20

Legislature’s intent as derived from the language of the statute.”) (internal quotation omitted);

AFSCME v City of Detroit, 468 Mich 388, 400; 662 NW2d 695 (2003) (“Additionally, we may

not read into the statute what is not within the Legislature's intent as derived from the language

of the statute.”); Omne Fin, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999)

(“Hence, nothing may be read into a statute that is not within the manifest intent of the

Legislature as derived from the act itself.”).

Palm addressed this principle specifically in the context of mandatory sentencing, when it

rejected a challenge to a habitual offender statute that imposed mandatory life, based on grounds

it deprived the court of sentencing discretion. 245 Mich at 403. This Court held that “[t]he courts

have no discretionary power in this respect unless it be conferred upon them by law. Under its

mandate, murder in the first degree is punished by life imprisonment. Courts have no inherent

power to modify a statute in this respect to meet exceptional cases.” Id. at 404 (emphasis

added).18

More recently, it was observed that “the Legislature has the exclusive power to determine

the sentence prescribed by law for a crime, and the function of the court is ‘only to impose [a]

sentence under and in accord with the statute.’” People v Conat, 238 Mich App 134, 147; 605

NW2d 49, 57 (1999) (citations omitted). The Court confirmed the Legislature’s ability to set a

non-parolable mandatory life sentence for first-degree murder, despite this limit on the court’s

discretion. Id. at 148 (citing People v Hall, 396 Mich 650, 657-58; 242 NW2d 377 (1976)).

The court below held that an individualized mitigation hearing is required under Miller to

impose a constitutionally-valid sentence of LWOP. Carp, slip op 40-41. It suggests severing

18 See also People v Wolfe, 338 Mich 525, 542; 61 NW2d 767 (1953) (observing that “[i]t is not essentialto the validity of a penal statute that the court imposing sentence be permitted to exercise discretion tosome extent, or within prescribed limitations.”) (citing Palm, 245 Mich at 403).

21

MCL 791.234(6)(a), the prohibition on parole for those convicted of first-degree murder; but

then holds that the sentencing court could impose either parolable or non-parolable life. Id.

This proposed sentence determination process is in direct conflict with Michigan law and

precedent. The penalty of MCL 750.316 is imposed by operation of law: “A person who

commits any of the following is guilty of first degree murder and shall be punished by

imprisonment for life.” Id. (emphasis added). It is clear, as recognized by Palm, supra, and

Conat, supra, that the Legislature intended that first-degree murder be punished exclusively and

automatically by life imprisonment.

There is no statutorily-authorized process nor any other basis in the law of first-degree

homicide that permits an alternative conclusion. Michigan law does not permit consideration and

giving effect to the Miller mitigation factors. Nor is there any legislatively-enacted authority for

a discretionary process to decide between two (or more) first-degree sentencing options, such as

life with or without parole. The Michigan Legislature has not conferred this discretion on the

courts. It is therefore unavailable. The court of appeals cannot write a discretionary process into

this statutory scheme where the Legislature has not provided for one.

III.THE COURT BELOW ERRED IN REJECTING THE SENTENCE OFMCL 750.317 AS THE ONLY CONSTITUTIONALLY AVAILABLE,MILLER-COMPLIANT, PROPORTIONATE PENALTY THATRESPECTS MICHIGAN’S LEGISLATIVE INTENT AND THESEPARATION OF POWERS, WHEN THE NON-PAROLABLE LIFESENTENCE OF 750.316 CANNOT VALIDLY BE IMPOSED ONJUVENILE OFFENDERS.

A. Opinion below

The court of appeals expressly rejected the only Miller-compliant constitutional

alternative, the application of MCL 750.317’s penalty for second-degree murder for juveniles

convicted of first-degree homicide. Carp, slip op 36. The court observed that imposing the

second-degree homicide penalty would “offend the premise of proportionality in seeking to

22

assure that the punishment imposed fits the crime,” and would be a “failure to recognize and

afford weight to the jury’s verdict.” Id.

The court also determined that only MCL 791.234(6)(a) (which prohibits the jurisdiction

of the Parole Board over those convicted under section 750.316) is unconstitutional and must be

struck, because that statute “fails to acknowledge a sentencing court’s discretion to determine

that a convicted juvenile homicide offender may be eligible for parole.” Carp, slip op at 36. It

did so even after recognizing the interaction of the three statutes that “create an unconstitutional

perfect storm19 under Miller”: MCL 750.316, the first-degree murder statute, MCL 769.1(1)(g)

(juveniles convicted of homicide must be sentenced as adults), and MCL 791.234(6)(a). Id.

B. Law and Analysis

1. The life sentence of MCL 750.316 cannot be constitutionally applied to juveniles followingMiller, because it is mandatory and denies any meaningful opportunity for parole.

Miller held that mandatory LWOP violates the Eighth Amendment’s ban on cruel and

unusual punishment, 132 S Ct at 2460, as well as the principle of proportionality. Id. at 2475.

The sentencer “must have the opportunity to consider mitigating circumstances before imposing

the harshest possible penalty for juveniles.” Id. The penalty associated with the first-degree

murder statute, MCL 750.316, cannot be applied constitutionally to Raymond or those similarly

situated, because it violates Miller.

“Conviction of first-degree murder carries an automatic sentence of life imprisonment

without possibility of parole, while second-degree murder is punishable by imprisonment for life

19 The article that is the source of the term, Kimberly Thomas, “Juvenile Life Without Parole /Unconstitutional in Michigan?,” Michigan Bar Journal, February, 2011, p 35, available athttp://www.michbar.org/journal/pdf/pdf4article1811.pdf, lists the following statutes as part of theoverall scheme: MCL 712A.2, MCL 600.606, the automatic waiver statutes; MCL 769.1, whichmandates juveniles being sentenced identically to adult offenders for certain specified crimes, includingfirst-degree murder; and MCL 750.316, the first-degree murder statute, which specifies mandatory life.

23

or for any terms of years and the offender is parolable.” People v Morrin, 31 Mich App 301, 325;

187 NW2d 434 (1971) (emphasis added).20 Case law characterizes MCL 750.316 as “imposing a

mandatory life sentence without the possibility of parole,” without reference to the operation of

MCL 791.234(6)(a). People v Drohan, 475 Mich 140; 715 NW2d 778, 790 n 12 (2006); accord,

Morrin, supra.21 See also People v Harper, 479 Mich 599, 613 n 21; 739 NW2d 523, 532 (2007)

(“A very limited number of offenses carry determinate sentences in Michigan, such as first-

degree murder, MCL 750.316 (life in prison without the possibility of parole). . .”)

Even if this Court interprets MCL 750.316 to permit a parolable life sentence, as the

court of appeals implies, Carp, slip op 36, Michigan’s sentencing scheme prevents the

meaningful opportunity for release required by Miller. 132 S Ct at 2469. The Michigan Parole

Board has a longstanding policy that a “life sentence means life in prison.” Alexander v Birkett,

228 Fed.Appx. 534, 535 (CA 6 2007). The policy is recognized by the state courts, and has been

in place since at least 1976. People v Hill, 267 Mich App 345, 352, 705 NW2d 139, 143

(2005).22 More recently, the Sixth Circuit found that the percentage of parole-eligible lifers who

were released recently averaged no more 0.15%. Foster v Booker, 595 F.3d 353, 366 (CA 6

2010).

This policy means that the “meaningful opportunity to obtain release” Miller requires,

20 Accord, People v Babcock, 469 Mich 247; 666 NW2d 231, 235 n 4 (2003) (acknowledging mandatorysentences outside sentencing guidelines, noting that “a first-degree murder conviction mandates asentence of imprisonment for life, M.C.L. §750.316,” and that such penalty is not superseded by thestatutory sentencing guidelines).

21 MCL 791.234(6) also demonstrates the inherent prohibition on parole in MCL 750.316. All otherstatutes listed in § 791.234(6) expressly include a “without parole” provision; section 750.316 does notbecause it need not. See, e.g., MCL 333.17764(7), MCL 750.18(7), and MCL 750.520b(2)(c).

22For earlier “life means life” policy cases, see also People v Lino (After Remand), 213 Mich App 89, 96,98; 539 NW2d 545 (1995), overruled by People v Carson, 220 Mich App 662; 560 NW2d 657 (1996);People v Hurst (After Remand), 169 Mich App 160, 168; 425 NW2d 752 (1988). Carson includedstatistics dating back to 1979 showing very few lifers had been paroled. 220 Mich App at 677.

24

132 S Ct at 2469, is unavailable to individuals sentenced to ostensible “parolable” life. In all

regards, then, MCL 750.316’s life sentence cannot be applied constitutionally to juveniles.

“It is axiomatic that a statutory provision . . . cannot authorize action in violation of the

federal or state constitutions.” People v Conley, 270 Mich App 301; 715 NW2d 377, 386 (2006).

So MCL 750.316 cannot be imposed in violation of the Eighth Amendment. Without authority to

extend MCL 750.316 to permit sentences of parolable life, or to hold a discretionary hearing on

whether the individual juvenile defendant’s characteristics and circumstances merit a sentence

less than life without parole, the statute is unconstitutional, and thus invalid, under Miller.

2. Severance cannot save the unconstitutional sentencing scheme, because severance of one ormore parts renders the remainder of the law incomplete, illogical, and unreasonable.

Michigan law provides for severance of the offending portion of a statute, after it is found

invalid. MCL 8.5. If unconstitutional language can be excised from a law, while leaving it

“complete and operative,” and “logical in its formulation and organization,” the remainder of the

law may stand. In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38,

490 Mich 295, 345, 347; 806 NW2d 683 (2011) (citations omitted)); accord, Eastwood Park

Amusement Co v. East Detroit Mayor, 325 Mich. 60, 72 (1949). For example, severing one word,

“state,” left behind a waste management statute that could “be read and enforced independently

of the invalid portion and remains reasonable in view of the act as originally drafted.” Citizens

for Logical Alternatives v Clare County Bd. of Com’rs, 211 Mich App 494, 498; 536 NW2d 286

(1995) (citation omitted).

When severing language from a statute courts must always consider “whether the

remainder of the act is otherwise complete in itself and capable of being carried out without

reference to the unconstitutional section,” and whether “the unconstitutional portions are so

entangled with the others that they cannot be removed without adversely affecting the operation

25

of the act.” Blank v Dept of Corr, 462 Mich 103, 123; 564 NW2d 130 (2000) (quotation

omitted). No portion of the first-degree homicide LWOP sentencing scheme can be deleted

without disrupting Michigan’s broader sentencing scheme, and leaving the juvenile sentencing

scheme in shambles.

Severing all or part of MCL 791.234(6)(a), MCL 769.1(1)(g), or MCL 750.316 leaves

behind a sentencing scheme that is not “complete and operative,” is illogical and unreasonable in

context, and even against the manifest intent of the legislature in violation of MCL 8.5. For

instance, severing MCL 791.234(6)(a) would prohibit Parole Board jurisdiction over all those

convicted of first-degree homicide, far broader than Miller envisions. Even if it is possible to

sever or strike the provision only as to juveniles, it leaves behind an incomplete and

unreasonable scheme: For crimes less severe than first-degree murder, the prohibition on parole

remains intact.

Severing MCL 769.1(1)(g), and removing the requirement that juveniles convicted under

MCL 750.316 be sentenced as adults, returns the youth offenders to the jurisdiction and extreme

options of the juvenile system: potentially light sentences or sentencing as an adult offender.23

Miller expressly rejected such a “choice between extremes,” holding that such laws do not

satisfy the Eighth Amendment. Miller, supra at 2474-75. In addition, juvenile offenders for all

other crimes covered under section 769.1(1), including crimes with no intent to murder, remain

in the adult system subject to harsher sentences – again, not a reasonable scheme in context of

the larger act.

Finally, no part of MCL 750.316 can be severed. The penalty and its automatic

imposition is the portion that offends the Eighth Amendment. If the penalty is severed, then the

23 MCL 769.1(3) permits judges to determine whether sentencing within the juvenile system or as an adultoffender is appropriate.

26

crime (as to juveniles) becomes one without a penalty specifically prescribed. The penalty then

becomes four or five years, MCL 750.503; 750.505, clearly against the manifest intent of the

legislature.

As an additional note on MCL 791.234(6)(a), the court of appeals was incorrect in

suggesting that its severance restores Michigan’s sentencing scheme to constitutionality. The court

observed that this section is “unconstitutional as written and as applied to juvenile offenders

convicted of homicide” and that it “fails to acknowledge a sentencing court’s discretion to

determine that a convicted juvenile homicide offender may be eligible for parole.” Carp, slip op at

36. In fact, this provision has nothing to do with the sentencing court, nor with a defendant’s

sentencing, being found nowhere on a judgment of sentence. Instead, it is located in Michigan’s

Correction Code. Excising this section will not somehow reveal a constitutional, discretionary

sentencing scheme. Severing MCL 791.234(6)(a) cannot solve the unconstitutionality of Michigan’s

juvenile sentencing scheme, post-Miller.

3. Michigan precedent permits courts to correct illegal or invalid sentences, as well as toconvert a judgment of conviction or sentence to that of a lesser included offense.

Michigan permits the correction of illegal sentences: “[W]here the trial court has imposed

an illegal sentence it has the power to substitute for it a legal sentence notwithstanding the illegal

sentence has been partly executed.” Ex parte Vitali, 153 Mich 514, 515; 116 NW 1066, 1066

(1908) (citing People v Farrell, 146 Mich 264; 109 NW 440 (1906)).

A trial judge is authorized to resentence a defendant when the original sentence is invalid.

People v Moore, 468 Mich 573, 579; 664 NW2d 700 (2003) (citing In re Jenkins, 438 Mich 364,

368; 475 NW2d 279 (1991); People v Miles, 454 Mich 90, 96-97; 559 NW2d 299 (1997).). A

sentence will be found is invalid if it “is beyond statutory limits, when it is based upon

constitutionally impermissible grounds, improper assumptions of guilt, a misconception of law,

27

or when it conforms to local sentencing policy rather than individualized facts.” Miles, 454 Mich

at 96 (citing People v Whalen, 412 Mich 166, 169-170; 312 NW2d 638 (1981)). Here, the

mandatory life sentence under MCL 750.316 is constitutionally impermissible, and thus invalid.

“[W]hen a conviction for a greater offense is reversed on grounds that affect only the

greater offense,” this Court may remand for entry of judgments of conviction on necessarily

included lesser offenses. People v Lockett, 295 Mich App 165, 181-182; 814 NW2d 295, 304

(2012) (quoting People v Bearss, 463 Mich 623, 631; 625 NW2d 10 (2001)). Post-Miller,

Michigan has no constitutionally sound sentence or sentencing procedure for a juvenile

convicted of the “greater offense,” first-degree murder. Second-degree murder is a lesser-

included offense to first-degree murder. People v Clark, 274 Mich App 248, 257; 732 NW2d

605, 611 (2007) (citing People v Carter, 395 Mich 434, 437-38; 236 NW2d 500 (1975)). Entry

of the sentence of the lesser offense follows Michigan precedent.

Michigan courts have converted first-degree murder convictions to second-degree when

justice so required. See People v Hutcherson, 415 Mich 854, 854; 327 NW2d 922, 923 (1982).

They have set aside improper sentences in favor of the sentence for a lesser included offense.

See, e.g., People v Lee, 14 Mich App 328, 328-329; 165 NW2d 518 (1968) (citing People v

Sharp, 9 Mich App 34; 155 NW2d 719 (1968)).

People v Williams, 475 Mich 101; 715 NW2d 24 (2006), observed that “federal appellate

courts appear to have uniformly concluded that they may direct the entry of judgment for a lesser

included offense when a conviction for a greater offense is reversed on grounds that affect only

the greater offense.” Id. at 104 (quoting Rutledge v United States, 517 US 292, 306; 116 S Ct

1241 (1996)). This power has been exercised regularly in Michigan. Where a conviction for

unarmed robbery could not be sustained, nor its sentence imposed, this Court held that the

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appropriate remedy was entry of judgment of larceny. People v Randolph, 466 Mich 532, 552;

648 NW2d 164 (2002), superseded by statute on other grounds. This was appropriate because

“the jury’s decision necessarily included a finding that defendant committed every element of the

crime of larceny in a building.” Id. at 552, n 5. The conviction on the lesser offense was

“necessarily subsumed in [the jury’s] verdict.” Id. at 553.

And in People v Todd, 201 Mich App 216, 217; 506 NW2d 9 (1993), judgment mod and

remanded 444 Mich 936 (1994), this Court exercised its broad remedial power in a case of

insufficiency of the evidence. It entered judgment on a lesser included offense, because each

element of that offense was in the record. This cured the constitutional defect in the original

judgment and sentence. Id.

4. Death penalty jurisprudence demonstrates the propriety of choosing the next harshestavailable sentence; here, life or any term of years.

Michigan history does not aid this inquiry, but courts in states with the death penalty

routinely converted defendants’ unconstitutional death penalty sentences to life imprisonment,

imposing the next harshest constitutionally available sentence. When Furman v Georgia, 408 US

238 (1972), invalidated a portion of Pennsylvania’s death penalty scheme, the state court

imposed a life sentence. Commonwealth v Bradley, 449 Pa 19, 23-24 (1972).

Similarly, after North Carolina’s mandatory capital punishment scheme was invalidated

by Woodson v North Carolina, 428 US 280; 96 S Ct 2978 (1976) and Carey v North Carolina,

428 US 904; 96 S Ct 3209; 49 LEd2d 1209 (1976), the state supreme court held that “[b]oth

common sense and rudimentary justice demand that the maximum permissible sentence of life

imprisonment now be imposed upon a person convicted of first degree murder. . .” Carey v

Garrison, 452 F Supp 485, 487 (D NC 1978) (quoting State v Davis, 290 NC 511; 227 SE2d 97

(1976)). The court rejected the state’s ten-year unclassified felonies sentencing provision, finding

29

instead “that the only constitutional penalty for first degree murder under [North Carolina’s

homicide statute] was life imprisonment.” Id. at 488.

Other states took the same action as Pennsylvania and North Carolina. See People v

Davis, 43 NY2d 17, 37 (1977) (as mandatorily-imposed death penalty was invalid as a matter of

law, sentence vacated for resentencing under the second-degree murder statute); see also State v

Lee, 340 So 2d 180 (La 1976); Boyd v Commonwealth, 550 SW2d 507 (Ky 1977).

5. Post-Miller, second-degree murder is the only available constitutionally valid sentence forjuvenile offenders; all other sentencing alternatives offend legislative intent and proportionatesentencing.

The sentencing alternatives of the second-degree homicide statute, term of years or life,

represent the next harshest constitutional alternative to the penalty for first-degree homicide. As

explained in section III.B.2., severing MCL 769.1(1)(g), the provision that requires that juveniles

convicted under MCL 750.316 be sentenced as adults, returns those offenders to the juvenile

system, where sentence alternatives are excessively light. Alternatively, like North Carolina,

Michigan has penalties available for common-law crimes and those for which no penalty is

specifically prescribed. However, at four and five years (MCL 750.503 and 750.505, respectively),

neither respects legislative intent.

The intent of the Michigan Legislature, as expressed by its statutes, is that homicide

should be punished severely, up to and including life. The use of MCL 750.317 for a penalty for

these offenders gives effect to the intent of the Michigan statutory scheme, while removing the

mandatory aspect that Miller found a violation of the Eighth Amendment. That is, with second-

degree murder, the guidelines apply, including the use of the prior record and offense variables.

That permits the exercise of discretion and individualized consideration Miller requires.

The court of appeals’ rejection of the second-degree solution should itself be rejected.

Again, the penalty for first-degree murder cannot constitutionally be imposed on juvenile

30

offenders in Michigan. While the first-degree conviction will stand, the section 750.316 penalty

is now invalid. Instead, the penalty for second-degree homicide should be imposed.

That sentence is term of years or life, so a life sentence is still available to give

expression to the legislative intent. And instead of “offend[ing] the premise of proportionality,”

Carp, slip op at 36, it gives it effect. Miller calls for a graduated and proportionate range of

sentencing,24 and MCL 750.317’s term of years or life meets that requirement.

IV. THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’SMOTION FOR RELIEF FROM JUDGMENT WAS ERRONEOUS ANDAN ABUSE OF DISCRETION, WHERE HE WAS ENTITLED TO THEPRESENTATION OF SUBSTANTIAL DEFENSES AND EFFECTIVEASSISTANCE OF COUNSEL, BUT HIS TRIAL ATTORNEY FAILEDTO PROFFER EVIDENCE OF DURESS TO PRESERVE THERECORD.

A. Factual and procedural background

Defense counsel argued at trial for the use of duress as a defense. His argument was that

while Michigan case law, especially People v Dittis, 157 Mich App 38 (1987), held generally

that duress was not a defense to homicide, the existence of duress would be a factor in whether

intent to commit murder was established. T II, 297-98. The defense also argued that duress

should be available because Raymond was being tried as an aider and abettor, and not as an

active participant. Id. at 305-06. (This last point was disputed by the prosecution; however, the

jury was instructed on aiding and abetting. See T II, 301; T VII 1597-1602.)

During his argument for the introduction of duress as a defense, counsel suggested that

the trial court’s determination of this question was made difficult by the fact that it was

“operating in a vacuum. And without having the facts of which to consider to apply the legal

24 “The Eighth Amendment’s prohibition of cruel and unusual punishment guarantees individuals the right notto be subjected to excessive sanctions[,] . . . [and t]hat right . . . flows from the basic precept of justice thatpunishment for crime should be graduated and proportioned to both the offender and the offense.” 132 S Ctat 2463 (quoting Roper, 543 US, at 560, 125 S Ct 1183) (alterations omitted) (emphasis added).

31

principle, it puts you essentially in a bind. . .” T II 305. However, when the court denied defense

counsel’s request to introduce a duress defense, stating that “duress is not a defense to

homicide[,]” T II 306, defense counsel made no proffer of evidence to support his argument.

The Court of Appeals observed this lack of evidence when it denied Raymond’s direct

appeal. It stated first that “Defendant was obliged to make an offer of proof to provide the trial

court with an adequate basis on which to make its ruling, and to provide this Court with the

information it needs to evaluate the claim of error.” People v Carp, 2008 WL 5429890, 5 (citing

People v Grant, 445 Mich 535; 520 NW2d 123 (1994)) (emphasis added). It then noted that

“defendant failed to present evidence to establish the existence of threatening conduct.” Id. at 6.

In its response to Raymond’s motion for relief from judgment, the trial court disregarded

the court of appeals’s statement regarding his defense counsel’s obligation of proof. App. D, 2. It

also found no good cause for a failure to raise this issue earlier, and failed to find either trial or

appellate counsel ineffective as to this issue. Id.

B. Law and Analysis

1. Standard of Review

On review, a trial court’s decision on a motion for relief from judgment is evaluated for

abuse of discretion. People v Swain, 288 Mich App 609, 629; 794 NW2d 92, 103 (2010). Any

findings of fact in support of the court’s decision are reviewed for clear error. Id.

A claim of ineffective assistance of counsel raises a mixed question of fact and

constitutional law. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342, 347 (2004)

(quoting People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002)). The court must evaluate

the facts first, and then based on those facts, determine whether counsel was constitutionally

ineffective. Id. Again, “[t]he trial court’s factual findings are reviewed for clear error, while its

constitutional determinations are reviewed de novo.” Id.

32

2. Trial counsel was constitutionally ineffective and deprived Raymond of a substantialdefense by failing to make an offer of proof of duress.

Both the Federal and Michigan Constitutions guarantee the accused the right to assistance

of counsel at trial. US Const Ams VI, XIV; Mich Const 1963, art 1, § 20. This includes the right

to effective assistance. Strickland v Washington, 466 US 668; 104 S Ct 2052 (1984); People v

Pickens, 446 Mich 298, 302-03; 521 NW2d 797 (1994) (adopting the federal Strickland standard

for effective assistance of counsel claims).

In order to make a successful claim of ineffective assistance of counsel, a defendant must

identify the acts or omissions of counsel that are not the result of reasonable professional

judgment in light of prevailing professional norms. Strickland, 466 US at 688. The standard is

whether the attorney’s conduct “fell below an objective standard of reasonableness.” People v

Grant, 470 Mich 477, 485; 684 NW2d 686, 692 (2004) In addition, the defendant must show that

the deficient performance prejudiced the defense. Kimmelmann v Morrison, 477 US 365; 106 S

Ct 2574 (1986). “To establish prejudice, defendant must show that there is a reasonable

probability that, but for the counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Pickens, 446 Mich at 360 (citing Strickland, 466 US at 689). However, a

“reasonable probability” is not equivalent to preponderance; it “need not rise to the level of

making it more likely than not that the outcome would have been different.” Grant, 470 Mich at

486 (citing Strickland, 466 US at 693).

Appellate courts are not required to remand for an evidentiary hearing when the trial

record is sufficient. People v Williams, 223 Mich App 409, 414; 566 NW2d 649 (1997); People v

Ginther, 390 Mich 436, 443; 197 NW2d 281 (1973). However, where the record is inadequate, a

defendant is obligated to establish a testimonial record “which evidentially supports his claim

33

and which excludes hypotheses consistent with the view that his trial lawyer represented him

adequately.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57, 59-60 (1999) (citing Ginther, 390

Mich at 442-443).

A defense counsel’s failure to call witnesses or present other evidence may amount to

ineffective assistance of counsel when it deprives the defendant of a substantial defense. People

v Hyland, 212 Mich App 701, 710; 538 NW2d 465 (1995), vac’d in part on other grounds, 453

Mich 902 (1996) (citing People v Hoyt, 185 Mich App 531, 537-538; 462 NW2d 793 (1990)). A

defendant is entitled to have his counsel prepare, investigate, and present all substantial defenses.

People v Kelly, 186 Mich App 524, 527; 465 NW2d 569, 571 (1990) (citing People v Hubbard,

156 Mich App 712, 714; 402 NW2d 79 (1986); People v Lewis, 64 Mich App 175, 183-184; 235

NW2d 100 (1975), lv den 395 Mich 810 (1975)).

A substantial defense is one which might have made a difference in the outcome of the

trial. Hyland, 212 Mich App at 710 (citing Kelly, 186 Mich App at 526). Hyland’s standard

corresponds to the federal rule. See, e.g., English v Romanowski, 589 F Supp 2d 893, 898-99 (ED

Mich 2008) (“[T]he failure to call witnesses or present other evidence may constitute ineffective

assistance of counsel when it deprives a defendant of a substantial defense.”) (citing Chegwidden

v Kapture, 92 Fed Appx 309, 311 (CA 6 2004); Hutchison v Bell, 303 F3d 720, 749 (CA 6

2002)).

A defendant faces a heavy burden when charging ineffective assistance, to overcome a

“presumption that counsel employed effective trial strategy.” People v Payne, 285 Mich App

181; 774 NW2d 714 (2009) (citing People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818

(2003)). However, even trial strategy may be evaluated for constitutional deficiency. Washington

v Hofbauer, 228 F3d 689, 704 (CA 6 2000) (citing Martin v Rose, 744 F.2d 1245, 1249 (CA 6

34

1984) (“stating that ‘even deliberate trial tactics may constitute ineffective assistance of counsel

if they fall outside the wide range of professionally competent assistance’”)).

Michigan Rule of Evidence 103 provides direction on the issue of an offer of proof:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling whichadmits or excludes evidence unless a substantial right of the party is affected, and . . .(2) Offer of proof. In case the ruling is one excluding evidence, the substance of theevidence was made known to the court by offer or was apparent from the contextwithin which questions were asked.

MRE 103(a)(2).

Because the duress defense was the primary, if not the sole defense strategy available to

Raymond, his trial attorney’s failure to make an offer of proof in support fell below an objective

standard of reasonableness. Defense counsel was aware of all the underlying evidence supporting

Raymond’s limited participation, and that his participation was coerced by threat of force both

imminent and based on Gorecki’s history of violence throughout Raymond’s life. By failing to

make an offer of proof and preserving the record for appellate review, trial counsel was

unconstitutionally ineffective and prejudiced Raymond.

Trial counsel’s failure to make an offer of proof deprived Raymond of a substantial

defense. That is, it left the trial court “operating in a vacuum,” as defense counsel himself

observed. T II, 305.

The record supports defense counsel’s request for the duress defense; it also supports

finding that counsel was constitutionally ineffective. Raymond relies on his own and trial

counsel’s affidavits provided to the Court of Appeals during direct review, and an additional

affidavit. App. 6, 2008 Carp Aff.; App. 7, 2010 Carp Aff.; App. 8, Garon Aff.

Raymond told his trial attorney that during the commission of this crime, Gorecki’s

statements to him included the threat “or you’re next.” 2008 Carp Aff ¶¶ 3, 6; Garon Aff ¶¶ 3, 4;

35

2010 Carp Aff ¶ 8. Raymond observed his older brother’s violent behavior over the years,

extended to choking their mother, getting into fistfights, and beating their sister, stepfather, and

Gorecki’s girlfriend Shavaun. App. 7, 2010 Carp Aff ¶ 10; T IV 808-09, 834. Raymond knew

that Gorecki frequently became violent when angry. App. 7, ¶ 9. Gorecki was yelling at

Raymond during the incident, and Raymond was afraid that he would be seriously hurt as well.

Id. ¶ 11; 2008 Carp Aff., ¶ 4.

All this information was provided to Raymond’s trial attorney during trial preparation.

2008 Carp Aff ¶¶ 3; Garon Aff ¶¶ 3-5; 2010 Carp Aff ¶ 15. Indeed, his trial attorney

acknowledges that it was the basis for his planned defense. Garon Aff, ¶¶ 2,5.

Raymond argues that the introduction of the evidence above would have made a

difference in two contexts. First, introducing the evidence in the trial court might have provided

it with a reason to make a different ruling on the applicability of a duress defense. In addition,

the evidence before a jury might have permitted it to find that that Raymond did not have the

requisite intent for first degree murder, or for aiding and abetting Gorecki’s actions.

Second, had his trial attorney made an offer of proof, the record on appeal to the Court of

Appeals would have been more complete on the issue. Instead, the Court of Appeals “reject[ed]

defense counsel’s suggestion that the record is unduly limited because the trial court precluded

admission of the evidence of duress.” 2008 WL 5429890, 5. It observed instead that the burden

was on the defendant to produce a prima facie case for the application of the defense. Id. (citing

People v Lemons, 454 Mich 234, 248-49; 562 NW2d 447 (1997)).

On direct appeal, the court of appeals stated expressly that the substance of excluded

evidence must be “made known to the court by offer.” Id. (emphasis added). Therefore,

“Defendant was obliged to make an offer of proof to provide the trial court with an adequate

36

basis on which to make its ruling, and to provide this Court with the information it needs to

evaluate the claim of error.” Id. (citing People v Grant, 445 Mich 535, 545, 553; 520 NW2d 123

(1994)).

The Court of Appeals had no record on which to find the existence of a threat against

Raymond, so as to find support for a duress defense. Thus, the offer of proof would have

provided the appellate court a preserved record to analyze for the proper application of the

defense theory of defense.

3. Good cause exists for the failure to raise this issue on appeal and actual prejudice resulted.

Defendant must demonstrate good cause for having failed to raise this issue in the past,

and actual prejudice from the alleged irregularities. MCR 6.508(D)(3). Raymond argues that

ineffective assistance of appellate counsel demonstrates cause, and that actual prejudice may be

shown as well.

Ineffective assistance of appellate counsel can constitute the requisite cause for a 6.500

motion. People v Reed, 449 Mich 375, 378 (1995); see also Murray v Carrier, 477 US 478, 488;

106 S Ct 2639; 91 LEd2d 397 (1986). Where the evidence not presented was so critical to

developing the defense theory, Raymond’s appellate counsel was ineffective for ignoring this

issue. Evitts v Lucey, 469 US 387, 396-397; 105 S Ct 830, 83 LEd2d 821 (1985). Evitts states

that “the promise of Douglas [v California, 372 US 353, 83 S Ct 814 (1963)] that a criminal

defendant has a right to counsel on appeal – like the promise of Gideon [v Wainwright, 372 US

335; 83 S Ct 792 (1963)] that a criminal defendant has a right to counsel at trial – would be a

futile gesture unless it comprehended the right to the effective assistance of counsel.” Id. at 397.

Appellate counsel is not obligated to raise “all arguable claims,” and may “winnow out

weaker arguments and focus on those more likely to prevail[.]” People v Gardner, 482 Mich 41, 50;

753 NW2d 78, 84 (2008) (citing Reed, 449 Mich at 391). But a failure to raise an obvious error “is

37

not evidence of a reasonable professional decision to winnow out weaker arguments.” Id. Among

the several factors courts should evaluate for a claim of ineffective assistance of appellate counsel is

the question whether “the omitted issues [were] ‘significant and obvious?’” Riley v Jones, 476 F

Supp 2d 696, 709 (ED Mich 2007) (citing Mapes v Coyle, 171 F3d 408, 427-28 (CA 6 1999)).

To establish actual prejudice under MCR 6.508(D)(3)(b)(i) ) [a defendant] must show that,

‘but for the alleged error,’ she ‘would have had a reasonably likely chance of acquittal.’” People v

McSwain, 259 Mich App 654, 688; 676 NW2d 236, 253 (2003). A second definition of “actual

prejudice” includes the condition that “the irregularity was so offensive to the maintenance of a

sound judicial process that the conviction should not be allowed to stand regardless of its effect on

the outcome of the case[.]” MCR 6.508(D)(3)(b)(iii). Raymond argues that he has demonstrated

“actual prejudice.” That is, the offer of proof, and the possible admission of a duress defense under

these circumstances would have provided a reasonably likely chance of acquittal on the first-degree

murder charge, by undermining the prosecution’s case for premeditation and intent. Alternatively,

that omission, and the corresponding failure to establish a record for review, is offensive to justice.

The exclusion of ineffective assistance of counsel as grounds for relief was an obvious error

as envisioned in Gardner and Riley. All the evidence in support of raising the issue of ineffective

assistance of trial counsel for failing to make an offer of proof was before appellate counsel at the

time of the appeal. See App 6, Defendant’s 2008 affidavit; App 8, Garon’s affidavit.

The omission of the argument that the trial attorney was constitutionally ineffective was not

a “winnowing” of weaker arguments in favor of those likelier to succeed. This decision was outside

prevailing professional norms, and provides Raymond good cause for failure to raise it earlier.

Both the Court of Appeals opinion on direct review and a recent dissent at the same court

demonstrate that the admission of a duress defense under the facts of this case could be proper. An

38

adequate record would have permitted the Court of Appeals to evaluate whether a duress defense

was permissible under the facts of his case. In People v Carp, the court of appeals acknowledged

that

there is some support for defendant’s claim that he was entitled to a jury instructionon the defense of duress to felony-murder. Although not definitive, our SupremeCourt has previously vacated a guilty plea in which a murder defendant claimed heacted under duress. Further, several other jurisdictions have allowed the defense ofduress to felony-murder.

2008 WL 5429890, 4 (citations omitted). The court also analyzed case law for the premise that a

duress defense was precluded. Id. at 5. Ultimately, however, this particular ground for relief failed

on the fact that the defense did not establish a prima facie case for duress, and that the obligation to

proffer was the trial attorney’s. Id.

Whether a duress defense is available under these facts was discussed in the dissent to

People v Harris, unpublished opinion of the Michigan Court of Appeals, Docket No. 287724, 2010

WL 2925380 (Mich App July 27, 2010) (discussed in more detail, infra, section VI). That opinion

stated that “there are no cases that hold that duress is not an available defense to aiding and abetting

murder.” Id. at 7 (Shapiro, J., dissenting). A Michigan Supreme Court decision “suggests that such a

defense is permissible.” Id. (citing People v Garcia, 448 Mich 442; 531 NW2d 683 (1995)).

Error will only be found in a ruling excluding evidence when the substantial rights of a party

are affected, and when an offer of proof has been made. MRE 103. The trial attorney was obligated

to make an offer of proof, when evidence supporting the sole defense theory was excluded. Both

MRE 103 and the Court of Appeals finding on the trial attorney’s failure demonstrate that this error

should have been obvious to appellate counsel.

39

V. THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’SMOTION FOR RELIEF FROM JUDGMENT WAS ERRONEOUS ANDAN ABUSE OF DISCRETION, WHERE HE WAS ENTITLED TO THEPRESENTATION OF SUBSTANTIAL DEFENSES AND EFFECTIVEASSISTANCE OF COUNSEL, BUT HIS TRIAL ATTORNEY FAILEDTO INVESTIGATE OR OFFER EVIDENCE OF HIS SUICIDEATTEMPT, TREATMENT, AND RELATED STATEMENTS AS THEYRELATED TO HIS STATE OF MIND.

A. Factual and Procedural Background

Mary Ann McNeely was murdered on May 31, 2006. One week later, on June 6, 2006,

Raymond was admitted to Harbor Oaks Hospital, having attempted suicide by slitting his wrists.

Gregory Aff., ¶¶ 3, 4. In repeated statements to his physician, Dr. Kristyn Gregory, and nurses,

Raymond stated that saw his brother kill his mother’s best friend, a woman he regarded as his

aunt. Id., ¶ 5; Exs. A, B, D, E.

Raymond reported nightmares, that every time he closed his eyes, he saw the murder

again. Id., ¶ 6; Exs. B,C. He expressed guilt over not stopping his brother, but also for turning his

brother in. Id., ¶ 5; Ex. A, B, D. The initial assessment indicated a stay of five days for Raymond’s

treatment. Id., Ex. A. However, less than 48 hours after his admission, Raymond was removed from

Harbor Oaks by a state police officer. Id., ¶ 11; Ex. F.

Dr. Gregory was prepared to testify regarding Raymond’s suicide attempt and statements

made while at Harbor Oaks. Id., ¶ 13. She expected to be contacted by defense counsel, but was not.

Id., ¶ 12. Defense counsel was aware of Raymond’s suicide attempt by July. See Arr’t T, 7.

The trial court denied Raymond’s motion for relief on this ground, because it considered the

“usefulness of the defense . . . marginal.” App 1, 3. The opinion only addresses defense counsel’s

failure to introduce this evidence, but does not acknowledge his failure to investigate the issue. The

court of appeals denied relief on this issue.

40

B. Law and Analysis

1. Standard of Review

The standard of review is the same as that presented in section IV.B.1, supra.

2. Trial counsel was ineffective and deprived Raymond of a substantial defense when theattorney failed to investigate and provide evidence regarding Raymond’s suicide attempt.

The general standards to establish ineffective assistance of counsel are provided in section

IV.B.2. In addition, the “[f]ailure to make a reasonable investigation can constitute ineffective

assistance of counsel.” People v McGhee, 268 Mich App 600, 626; 709 NW2d 595, 614 (2005)

(citation omitted). Federal courts agree. See, e.g., Towns v Smith, 395 F3d 251, 259 (CA 6 2005)

(“Courts have not hesitated to find ineffective assistance in violation of the Sixth Amendment when

counsel fails to conduct a reasonable investigation into one or more aspects of the case and when

that failure prejudices his or her client.”).

“[A] defense counsel’s failure to raise a substantive defense, where there is substantial

evidence to support the defendant’s claim, may amount to ineffectiveness of counsel.” People v

Moore, 131 Mich App 416, 418; 345 NW2d 710, 711 (1984) (citing People v Snyder, 108 Mich

App 754; 310 NW2d 868 (1981)). A defense counsel’s failure to call witnesses or present other

evidence may amount to ineffective assistance of counsel when it deprives the defendant of a

substantial defense. Hyland, 212 Mich App at 710. A defendant is entitled to have his counsel

prepare, investigate, and present all substantial defenses. People v Kelly, 186 Mich App at 527.

A substantial defense is one which might have made a difference in the outcome of the trial.

Hyland, 212 Mich App at 710. See also English v Romanowski, 589 F Supp 2d at 898-99 (“[T]he

failure to call witnesses or present other evidence may constitute ineffective assistance of

counsel when it deprives a defendant of a substantial defense.”) (citations omitted).

Raymond’s treating physician, Dr. Gregory, was prepared to testify on his behalf regarding

41

his state of mind and statements he made within days of Ms. McNeely’s murder. Raymond

attempted suicide and reported nightmares. He consistently stated that these were the result of

having seen his brother kill Ms. McNeely. Had this evidence been made available to the jury, a

reasonable possibility exists that the jury might have come to a different conclusion regarding

Raymond’s level of participation in and responsibility for the murder. Defense counsel was aware

of these facts, Arr’t T 7, but never spoke to Dr. Gregory. App 4, ¶ 12.

Raymond argues that evidence of his emotional state, and statements made while he was

at Harbor Oaks being treated for his suicide attempt would have been admissible and relevant.

People v Paquette, 214 Mich App 336, 343; 543 NW2d 342, 346 (1995), held that evidence of a

defendant’s lack of remorse following a murder was properly admitted, because “[d]efendant’s

conduct after the killing is relevant to a determination whether there was premeditation and

deliberation sufficient for a finding of first-degree murder.” Id. at 343 (citing People v

Schollaert, 194 Mich App 158, 170; 486 NW2d 312 (1992)).

Schollaert expressly stated that evidence of a defendant’s conduct after a homicide was

one of four evidentiary factors to be considered for establishing premeditation. 194 Mich App at

170 (the other three factors are “(1) the prior relationship of the parties; (2) the defendant’s

actions before the killing; [and] (3) the circumstances of the killing itself[.]”) (citations omitted).

Accord People v Plummer, 229 Mich App 293; 581 NW2d 753 (1998). In People v Bachynski,

unpublished opinion of the Michigan Court of Appeals, issued March 19, 2009 (Docket No

281550), 2009 WL 723600, the court of appeals found that evidence of the defendant’s behavior

following the victims’ deaths – including shopping, dancing, and eating out – negated her testimony

regarding her state of mind during two premeditated murders. Id. The court specifically cited

evidence indicating that defendant “appeared completely normal. . . . and did not seem afraid or

42

under any stress.” Id.

By contrast, Raymond’s conduct and state of mind following the murder was significantly

different. He was distraught to the point of suicide. In addition, he made a series of potentially

mitigating statements about the crime. Defense counsel should have investigated this line of

evidence and called Dr. Gregory, but did not do so.

Raymond’s statements at Harbor Oaks would have been admissible. His statements to his

treating physician and the nurses on staff would meet the hearsay exception for statements made

for medical treatment or diagnosis, including “the cause or external source” of his present

symptoms. MRE 803(4). Raymond’s statements regarding his sense of guilt over the murder and

turning his brother in, the observation of his brother killing his aunt, his nightmares and

depression, were all connected to his diagnosis and treatment following his suicide attempt. As

such, they would be admissible.

In addition, the progress notes recorded by the nurses who attended Raymond in the hospital

would be admissible under MRE 803(6). That exception permits the admission of records captured

contemporaneously, if kept as a regular practice and reflecting regularly conducted business. These

notes were consistently recorded every shift on a standard form, and are thus admissible.

3. Defendant can demonstrate good cause for the failure to raise this issue previously andactual prejudice.

These standards were provided in section IV.B.3. Again, ineffective assistance of

appellate counsel demonstrates the required cause, and actual prejudice. MCR 6.508(D)(3).

Failure to raise obvious errors may demonstrate ineffectiveness. People v Gardner, 482

Mich 41, 50; 753 NW2d 78, 84 (2008); Riley v Jones, 476 F Supp 2d 696, 709 (ED Mich 2007)

(citing Mapes v Coyle, 171 F3d 408, 427-28 (CA 6 1999). The court should also ask whether

“the omitted issues [were] clearly stronger than those presented?” and whether the “omitted

43

issues [were] dealt with in other assignments of error?” Riley, 476 FSupp 2d at 709.

A defendant must show actual prejudice, that ‘but for the alleged error,’ she ‘would have

had a reasonably likely chance of acquittal,’” McSwain, 259 Mich App at 688; or that “the

irregularity was so offensive to the maintenance of a sound judicial process that the conviction

should not be allowed to stand regardless of its effect on the outcome of the case[.]” MCR

6.508(D)(3)(b)(iii). Defendant-Appellant argues that he has demonstrated “actual prejudice.”

That is, the trial attorney’s failure to investigate and his appellate attorney’s subsequent failure to

do the same, resulted in the loss of a reasonably likely chance of acquittal.

This issue should have been raised on direct appeal. The trial attorney’s failure to

investigate Raymond’s suicide attempt a week after the murder was not dealt with in any other

assignment of error. Under Mapes, this is stronger argument for reversal than, for example,

appellate arguments on prosecutorial misconduct. This argument’s omission was neither strategic

nor reflective of “winnowing” in favor of stronger grounds for relief.

The omission of this argument from Raymond’s direct appeal was clearly prejudicial.

Paquette, supra, held that evidence of remorse or the lack thereof is relevant to questions of

premeditation and deliberation at issue in a first-degree murder case. This evidence raises

questions regarding Raymond’s level of participation and responsibility for Ms. McNeely’s

murder. The jury was also instructed on second-degree murder. If this evidence had been placed

before it, there is a reasonable likelihood the jury might have found the premeditation or

deliberation element lacking, and acquitted Raymond on the first-degree murder charge.

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VI. THE TRIAL COURT ERRED IN FINDING NO VIOLATION OFDEFENDANT-APPELLANT’S DUE PROCESS RIGHTS OR THEPRINCIPLE OF PROPORTIONALITY, WHEN MCL 767.39 PROVIDESNO DISTINCTION BETWEEN THE ACTS OF AN AIDER/ABETTORAND THOSE OF A PRINCIPAL, THE DEFENSE OF DURESS WASDENIED, AND THE MANDATORY IMPOSITION OF LIFE WITHOUTPAROLE PERMITTED NO CONSIDERATION OR MITIGATION FORREDUCED CRIMINAL RESPONSIBILITY.

A. Opinions below

The trial court denied relief, based on a lack of controlling case law. The court of appeals

denied leave to appeal, for failure to meet the burden of establishing entitlement to relief under

MCR 6.508(D).

B. Law and Analysis

1. Standard of review

Statutory interpretation and other questions of law are reviewed de novo. People v

Schaefer, 473 Mich 418, 427; 703 NW2d 774, 780 (2005).

2. In combination, Michigan’s accomplice liability statute, prohibition on the duress defensefor aiding and abetting homicide, and mandatory sentence for murder violate due process.

Sentencing for juvenile homicide offenders has been characterized as “the perfect storm.”

The storm should also include MCL 767.39, the aiding and abetting statute, which provides no

distinction between the responsibility of the principal and the accomplice. Another element is

duress, which is an unavailable defense for homicide. People v Dittis, 157 Mich App 38 (1987).

Raymond’s mitigated culpability coupled with the lack of discretion available for the sentencing

court in a mandatory sentencing scheme severely undermined his ability to offer a substantial

defense, denied his right to a fair trial, and violated due process and proportionality.

Appellate counsel raised two due process claims on direct review: denial of Raymond’s

right to present a duress defense, and his right to introduce evidence of duress to establish his state

of mind. This due process ground for relief was not raised on direct appeal.

45

However, this position was presented in a recent dissent in the Michigan Court of Appeals.

Judge Shapiro asserted that the application of MCL 767.39, which abolished any distinction

between the acts of an aider or abettor and those of the principal, may not comport with due process,

especially in the context of first-degree murder and its mandatory sentence. People v Harris,

unpublished opinion of the Michigan Court of Appeals, Docket No. 287724, 2010 WL 2925380, 8

(Mich App July 27, 2010) (Shapiro, J., dissenting). Judge Shapiro reasoned that

The threshold for aiding and abetting is very low and, while in some cases the intentof the abettor to aid in commission of the underlying crime is clear, in other cases, itis less so. Similarly, the degree of aid provided to the primary actor variessubstantially from case to case. Under our system of indeterminate sentencing, thesefactors can be considered in non-first-degree murder cases in assuring that theprinciple of proportionality be applied to the aider and abettor based on the facts ofthe case and his individual role in the crime. However, in the context of first-degreemurder, the sentence is not indeterminate. Someone convicted of aiding and abettinga first-degree murder must be sentenced to life without parole no matter how minorhis role or the degree to which he hoped the crime would not actually come tofruition. For this reason, I conclude that there is a significant conflict between theprinciple of proportionality and MCL 767.39 where the primary actor’s crime wasfirst-degree murder.

Id. (emphasis added).

Judge Harris argues that due process and fairness mandate the availability of a duress

defense for a defendant in Raymond’s position:

[I]f a defendant asserts, and has evidence to support the assertion, that his actions inabetting the crime were taken under duress, we must allow the jury to consider thatdefense. To exclude duress as a defense in all such cases as a bright line rule canresult in a grossly unjust outcome. An individual who is threatened with seriousharm by a potential murder if he does not provide requested or commandedassistance should not have to choose between being a dead hero and being deemedjust as guilty as the actual murderer and spending his life in prison without thepossibility of parole.

Id. (emphasis added). Even in a case in which a jury would have likely rejected a duress defense,

the defense, and the instruction, should have been available to a defendant. Id.

Similarly, here, there was enough evidence available to support a duress defense.

46

Numerous witnesses testfied that they were afraid of Gorecki, the principal actor here. In his

affidavits, Raymond stated that Gorecki threatened him by saying, “you’re next,” and “you’ll be

on the floor with [the victim].” App 3, ¶ 8. Raymond was fearful for his life, having observed

Gorecki choke their mother and get in fistfights with others.

The Harris dissent stated that “there are no cases that hold that duress is not an available

defense to aiding and abetting murder,” and noted that a Michigan Supreme Court decision

“suggests that such a defense is permissible.” 2010 WL 2925380, 7 (citing People v Garcia, 448

Mich 442; 531 NW2d 683 (1995)). Even the Court of Appeals panel that rejected Raymond’s

arguments on direct appeal noted that “our Supreme Court has recognized that a claim of duress,

even in a felony-murder case, may influence the defendant’s degree of responsibility.” Carp,

2008 WL 5429890, 4, n 2 (citing People v Merhige, 212 Mich 601, 610-611; 180 NW 418

(1920)).25 Mehrige addressed the case of a “getaway” driver in a bank robbery, whose presence

and actions were driven by force and threat. 212 Mich at 603-04.

“An aiding and abetting instruction is proper where there is evidence that (1) more than

one person was involved in the commission of a crime, and (2) the defendant’s role in the crime

may have been less than direct participation in the wrongdoing.” People v Head, 211 Mich App

205, 211; 535 NW2d 563, 567 (1995). Evidence here supported Raymond’s “less than direct”

involvement in this crime, and the jury was so instructed. T VII 1597-1602.

Under Michigan’s indeterminate sentencing system, lesser involvement in a crime by an

aider and abettor may provide a sentencing court mitigating grounds to deviate from the

guidelines, or at least provide a lower sentence within the guidelines. Both duress and aiding and

25 See also this Court’s decision in People v Bachynski, supra, 2009 WL 723600, 15 (noting “defendant wasnot denied her opportunity to present the defense of duress.”)

47

abetting mitigate responsibility. However, neither is permitted any effect under MCL 750.316,

where the mandatory life sentence leaves the sentencing court with no discretion, no possible

application of mitigation.

Again, a defendant must show good cause for the failure to raise this argument on appeal.

The good cause is again ineffective assistance of appellate counsel, as explained in IV.B.3,

supra. Appellate counsel raised a due process argument against trial court’s denial of a duress

defense. However, he did not argue these specific grounds.

MCR 6.508 criteria for “actual prejudice” includes the condition that “the irregularity was

so offensive to the maintenance of a sound judicial process that the conviction should not be

allowed to stand regardless of its effect on the outcome of the case[.]” MCR 6.508(D)(3)(b)(iii).

Here, the Harris dissent explains why Raymond’s conviction is “offensive to . . . a sound judicial

process”: the fact that “[s]omeone convicted of aiding and abetting a first-degree murder must be

sentenced to life without parole no matter how minor his role or the degree to which he hoped

the crime would not actually come to fruition.” Harris, WL 2010 WL 2925380, 8.

Raymond was constitutionally entitled to due process. The combination of the application

of MCL 767.39, the sentencing scheme for first-degree and felony-murder, and the trial court’s

ruling to exclude the duress defense violated Raymond’s due process rights. This is offensive to

the maintenance of a sound judicial process.

48

SUMMARY AND RELIEF

Defendant-Appellant Raymond Carp asks this Honorable Court to either grant this

application for leave to appeal or provide any appropriate peremptory relief.

Respectfully submitted,

__________________________Patricia L. Selby (P70163)Attorney for Defendant-AppellantPO Box 1077Grosse Ile, MI 48138(734) 624-4113

Dated: January 9, 2013

APPENDICES

App. A Opinion below, People v Carp, __ NW2d __, 2012 WL 5846553 (Nov. 15, 2012),Docket No. 307758

App. B Court of Appeals June 8, 2012 Order denying relief

App. C Court of Appeals August 9, 2012 Order granting leave

App. D Trial court January 13, 2011 Order denying Motion for Relief from Judgment

App. E Unpublished Decision, Craig v Cain CA5 2013

The following Appendices are not attached, but are part of the Court of Appeals record belowand are listed for reference:

App. 1 Order of the Trial Court, January 13, 2011

App. 2 Sentencing Transcript excerpts

App. 3 Trial Transcript excerpts

App. 4 Affidavit, Dr. Kristyn Gregory, and accompanying exhibits:

Ex. A Initial Psychiatric EvaluationEx. B Progress Notes, 6/7/06, starting 06:15Ex. C Progress Notes, 6/7/06, starting 21:45Ex. D Progress Notes, 6/7/06, 21:45 (cont’d)Ex. E Transfer formEx. F Progress Notes, 6/8/06

App. 5 Arraignment Transcript excerpt

App. 6 Affidavit, Raymond Carp, 2008

App. 7 Affidavit, Raymond Carp, 2010

App. 8 Affidavit, Daniel Garon, 2008

App. 9 Verdict Form