SENATE BILL No. 1383

 

 

November 27, 2012, Introduced by Senators JONES, KAHN and ROBERTSON and referred to the Committee on Insurance.

 

 

     A bill to amend 1927 PA 175, entitled

 

"The code of criminal procedure,"

 

(MCL 760.1 to 777.69) by adding sections 32 and 33 to chapter IX.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

CHAPTER IX

 

     Sec. 32. (1) Beginning January 1, 2014, if a defendant is

 

convicted of violating section 316 of the Michigan penal code, 1931

 

PA 328, MCL 750.316, and the defendant was under 18 years of age at

 

the time he or she committed the violation, the prosecuting

 

attorney may file a motion with the court requesting that the

 

defendant be sentenced to imprisonment for life without the

 

possibility of parole. The prosecuting attorney shall file the

 

motion within 14 days after the defendant is convicted of the

 

violation. The motion shall specify the grounds on which the

 

prosecuting attorney is requesting the court to impose a sentence

 

of imprisonment for life without the possibility of parole. If the


 

prosecuting attorney fails to file the motion within the 14-day

 

period, the court shall sentence the defendant to imprisonment for

 

life with parole eligibility after the defendant has served 45

 

years of that term of imprisonment.

 

     (2) If the prosecuting attorney files a motion under

 

subsection (1) requesting that the defendant be sentenced to

 

imprisonment for life without parole eligibility, the defendant

 

shall file a response to the prosecution's motion within 14 days

 

after receiving notice of the motion. The response shall specify

 

the basis on which the defendant believes the proper sentence

 

should be imprisonment for life with parole eligibility after the

 

defendant has served 45 years of that term of imprisonment.

 

     (3) If the prosecuting attorney files a motion under

 

subsection (1), the court shall conduct a hearing on the motion. At

 

the hearing, the trial court shall consider the aggravating and

 

mitigating factors set forth in this section.

 

     (4) Aggravating factors for consideration by the court under

 

subsection (3) include, but are not limited to, all of the

 

following:

 

     (a) The defendant committed the murder by intentionally

 

killing the victim while committing or attempting to commit any of

 

the crimes listed in section 316 of the Michigan penal code, 1931

 

PA 328, MCL 750.316.

 

     (b) The defendant committed the murder by the unlawful

 

detonation of an explosive with the intent to injure any person or

 

to damage property.

 

     (c) The defendant committed the murder by lying in wait.


 

     (d) The defendant was hired to kill any individual.

 

     (e) The defendant hired another person to kill any individual.

 

     (f) The victim of the violation was a corrections employee,

 

probation officer, parole officer, community corrections worker,

 

home detention officer, juvenile court official, fire fighter,

 

judge, prosecutor, or law enforcement officer, and either of the

 

following applies:

 

     (i) The victim was acting in the course of his or her duty.

 

     (ii) The violation was motivated by an act the victim performed

 

while acting in the course of his or her duty.

 

     (g) The defendant was previously convicted of another murder.

 

     (h) The defendant, at any other time, committed another murder

 

regardless of whether the defendant has been convicted of that

 

murder.

 

     (i) Any of the following applied at the time the violation was

 

committed:

 

     (i) The defendant was in the custody of the department of

 

corrections or a county sheriff.

 

     (ii) The defendant was on probation or parole.

 

     (iii) The defendant was under the jurisdiction of the court

 

under chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

 

712A.1 to 712A.32.

 

     (j) The defendant dismembered the victim.

 

     (k) The defendant tortured the victim or burned or mutilated

 

the victim while he or she was alive.

 

     (l) The victim was under 13 years of age when the violation was

 

committed.


 

     (m) The defendant committed any of the following violations

 

against the victim during the course of the violation:

 

     (i) A felony violation of chapter XI of the Michigan penal

 

code, 1931 PA 328, MCL 750.81 to 750.90h.

 

     (ii) A violation of chapter L of the Michigan penal code, 1931

 

PA 328, MCL 750.349 to 750.350a.

 

     (iii) Criminal sexual conduct or assault with intent to commit

 

criminal sexual conduct in violation of section 520b, 520c, 520d,

 

520e, or 520g of the Michigan penal code, 1931 PA 328, MCL

 

750.520b, 750.520c, 750.520d, 750.520e, and 750.520g.

 

     (n) The victim was listed by the state or known by the

 

defendant to be a witness against the defendant and the murder was

 

committed to prevent the victim from testifying.

 

     (o) The defendant committed the murder by intentionally

 

discharging a firearm into an inhabited dwelling or from a vehicle.

 

     (p) The victim of the murder was pregnant or the defendant

 

believed or suspected that the victim of the murder was pregnant.

 

     (q) Any other circumstances the court determines are

 

appropriate for its consideration.

 

     (5) Mitigating factors for consideration by the court under

 

subsection (3) include, but are not limited to, all of the

 

following:

 

     (a) The defendant has no significant history of prior criminal

 

conduct.

 

     (b) The defendant was under the influence of extreme mental or

 

emotional disturbance when the murder was committed.

 

     (c) The victim was a participant in or consented to the


 

defendant's conduct.

 

     (d) The defendant was an accomplice in a murder committed by

 

another person and the defendant's participation was relatively

 

minor.

 

     (e) The defendant acted under the substantial domination of

 

another person.

 

     (f) The defendant's capacity to appreciate the criminality of

 

his or her conduct or to conform that conduct to the requirements

 

of law was substantially impaired as a result of mental illness or

 

mental retardation.

 

     (g) The defendant's age, family circumstances, or mental

 

development substantially affected the defendant's ability to

 

appreciate the consequences of his or her actions.

 

     (h) Any other circumstances the court determines are

 

appropriate for its consideration.

 

     (6) The hearing under subsection (3) shall be considered a

 

sentencing hearing to which MRE 1101 applies. At the hearing the

 

court shall specify on the record the aggravating and mitigating

 

circumstances considered by the court and the court's reasons

 

supporting the sentence imposed. The court may consider evidence

 

presented at trial together with any new evidence presented at the

 

sentencing hearing.

 

     (7) A defendant sentenced to imprisonment for life without

 

parole eligibility is not subject to section 34 of the corrections

 

code of 1953, 1953 PA 232, MCL 791.234, but is subject to section

 

44 of the corrections code of 1953, 1953 PA 232, MCL 791.244.

 

     Sec. 33. (1) Except as otherwise provided in this section, the


 

procedures set forth in section 32 of this chapter do not apply to

 

any case that is final for purposes of appeal on or before June 24,

 

2012. A case is final for purposes of appeal under this section if

 

any of the following apply:

 

     (a) The time for filing an appeal in the state court of

 

appeals has expired.

 

     (b) The appeal is filed in the state court of appeals after

 

the time for filing an application for leave to appeal in the state

 

supreme court has expired.

 

     (c) The application for leave to appeal is filed in the state

 

supreme court after the application for leave to appeal is denied

 

or after a timely filed motion for rehearing is denied.

 

     (d) If the state supreme court has granted leave to appeal,

 

after the court renders its decision or after a timely filed motion

 

for rehearing is denied.

 

     (2) If the state supreme court or the United States supreme

 

court finds that the decision of the United States supreme court in

 

Miller v Alabama, United States supreme court no. 10-9649, decided

 

June 25, 2012, applies retroactively to defendants who were under

 

the age of 18 at the time of their crimes and that the decision is

 

final for appellate purposes, the determination of whether a

 

sentence of imprisonment for life for a violation of section 316 of

 

the Michigan penal code, 1931 PA 328, MCL 750.316, shall be with or

 

without parole eligibility shall be made by the sentencing judge or

 

his or her successor as provided in section 32 of this chapter.

 

     (3) If the United States supreme court's decision in Miller v

 

Alabama is held by the state supreme court or by the United States


 

supreme court to apply retroactively, the prosecuting attorney for

 

a county may file a motion to resentence any defendant who was

 

convicted in that county for a violation of section 316 of the

 

Michigan penal code, 1931 PA 328, MCL 750.316, whose sentence would

 

be subject to that decision.

 

     (4) Any motion under subsection (3) shall be filed within 180

 

days after the effective date of the amendatory act that added this

 

section or within 60 days after a final determination by the state

 

supreme court or by the United States supreme court that the

 

decision in Miller v Alabama is to be applied retroactively,

 

whichever is later. If the prosecuting attorney for a county files

 

a motion under subsection (3), the court shall hold a hearing on

 

the motion to determine whether the defendant should be sentenced

 

or resentenced to imprisonment for life without parole eligibility

 

or with parole eligibility after the defendant has served 45 years

 

of that term of imprisonment. If the prosecuting attorney does not

 

file a motion under subsection (3) within the time set forth in

 

this subsection, the defendant is eligible for parole under section

 

34 of the corrections code of 1953, 1953 PA 232, MCL 791.234, after

 

he or she has served 45 years of his or her term of imprisonment.

 

     (5) The requirements for sentencing a juvenile under section

 

32 of this chapter apply to resentencing a juvenile under this

 

section.

 

     Enacting section 1. This amendatory act does not take effect

 

unless Senate Bill No. 1382                                       

 

            of the 96th Legislature is enacted into law.