Felony murder; Pre-People v Aaron felony murder; Mandatory life without parole (LWOP); Cruel or unusual punishment; Const 1963, art 1, § 16; People v Hall; People v Lorentzen; People v Bullock; Motion for relief from judgment; MCR 6.508(D); Good cause; Actual prejudice; Malice; Burden shifting; Parole eligibility
 

The court held that mandatory LWOP for pre-Aaron felony murder is cruel or unusual punishment if the jury was not instructed on Aaron malice and the prosecution cannot prove beyond a reasonable doubt that a properly instructed jury would have found it. Defendant was convicted in 1976 of first-degree felony murder under an aiding-and-abetting theory and sentenced to mandatory LWOP. The trial court later denied relief from judgment. On appeal, the court first held that he showed good cause under MCR 6.508(D)(3) because “the legal basis for his sentencing argument was not reasonably available on direct appeal or for decades to come,” particularly given later LWOP cases moving away from mandatory punishment not tailored to culpability. The court next held that actual prejudice turned on whether the sentence was invalid. Applying the Lorentzen-Bullock factors, it concluded mandatory LWOP was grossly disproportionate where a jury never found malice as later defined in Aaron. It reasoned that it would be “‘profoundly unfair to impute full personal responsibility and moral guilt’” to an offender who did not intend to kill, intend great bodily harm, or act with wanton and willful disregard of the likelihood of death or great bodily harm. The court adopted a burden-shifting test: the defendant must first show the jury was not instructed on Aaron malice, and then “the burden shifts to the prosecution” to prove beyond a reasonable doubt that the jury would have found it from the trial evidence. The court rejected a Sixth Amendment challenge because this fact-finding would not increase the sentence, and the Amendment “‘does not prohibit fact-finding that reduces a defendant’s sentence.’” It declined to overrule Hall, noting this case involved only a “relatively small subset of sentences.” It also held that the remedy for a qualifying defendant is to strike the no-parole portion of the sentence because that remedy “‘requires the least judicial rewriting of the statute.’” As to defendant, the court found the “might have been expected to happen” instruction was “vague and passive” and did not require Aaron malice, but remand was required to allow the prosecution to meet its new burden. Vacated in part and remanded.

Chief Justice Cavanagh concurred in part and dissented in part. She agreed defendant showed good cause and that mandatory LWOP without a jury finding of Aaron malice was grossly disproportionate, but disagreed with allowing the prosecution to prove malice to a judge on remand. She reasoned that a pre-Aaron defendant “had no motivation to dispute malice” at trial, and she would have followed Bullock by simply striking the no-parole portion of the sentence.

Justice Zahra dissented. He would have held the motion was procedurally barred because the court already rejected defendant’s instructional challenge by reinstating his conviction after Aaron, and because he failed to show good cause. He viewed the majority as “effectively applying retroactively” Aaron and repackaging an attack on the conviction as a sentencing claim. He also would have found malice clearly established because defendant and the principal “acted in concert to commit an armed robbery.”