COA 369097 PEOPLE OF MI V KUMARA K HUBBERT Opinion - Per Curiam - Unpublished 12/4/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
December 04, 2025
9:31 AM
v No. 369097
Wayne Circuit Court
KUMARA K. HUBBERT, LC No. 98-013443-02-FC
Defendant-Appellant.
Before: K. F. KELLY, P.J., and BORRELLO and CAMERON, JJ.
PER CURIAM.
In 2000, a jury convicted defendant of second-degree murder,1 MCL 750.317; assault with
intent to rob while armed, MCL 750.89; and carrying a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. Defendant was sentenced to concurrent prison terms of 40 to
60 years for the second-degree murder conviction and 5 to 15 years for the assault with intent to
rob while armed conviction, to be served consecutively to a two-year term of imprisonment for the
felony-firearm conviction. Defendant now appeals by delayed leave granted2 the opinion and
order denying his motion for relief from judgment. We reverse the trial court order denying
defendant’s motion for relief from judgment, vacate defendant’s sentence for second-degree
murder, and remand for resentencing consistent with People v Eads, ___ Mich App ___; ___
NW3d ___ (2025) (Docket No. 357332), lv gtd 25 NW3d 118 (2025).
I. BASIC FACTS AND PROCEDURAL HISTORY
1 The jury found defendant guilty of second-degree murder as lesser offense to the original charge
of first-degree felony murder, MCL 750.316(1)(b).
2 People v Hubbert, unpublished order of the Court of Appeals, entered April 29, 2024 (Docket
No. 369097).

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Defendant’s convictions arise from his participation with codefendant, Hubert Marshall, in
the fatal shooting of the victim, Carl Higginson, in November 1998. This Court summarized the
relevant factual background in a recent appeal involving Marshall:
[Marshall’s] convictions arose from the shooting death of 24-year-old Carl
Higginson on November 9, 1998. At the time, [Marshall] was 17 years’ old and
[defendant], also known as Kamo, was 16 years’ old. Higginson drove into the
parking lot of the Southland Apartments in Taylor, Michigan looking for directions.
Five people, Jason Cunningham, Donte Kirk, Earl Rhoden, [defendant], and
[Marshall] were engaged in conversation as Higginson asked where someone
named Danielle lived. [Defendant] directed Higginson to a nearby parking lot.
Cunningham saw [Marshall] pass [defendant] a handgun, say he was going “to get
him”, and observed [defendant] walk in the direction of Higginson’s vehicle.
Cunningham, Kirk and Rhoden then left the scene by cutting through another
apartment building. They heard gunshots which they shrugged off as a normal
occurrence in the apartment complex. Both Martina Marchbanks and James
Harmer saw two young African-American males, one short and one tall, approach
Higginson’s vehicle. Marchbanks and Harmer called 911 after they witnessed the
taller of the two males raise an arm and shoot into Higginson’s vehicle.
On November 10, an anonymous tip and a call from Cunningham led to
[Marshall’s] and [defendant’s] arrest. During his interrogation, [Marshall]
provided a written statement where he confessed to having shot Higginson by
mistake. A search of [Marshall’s] bedroom revealed a .25 caliber handgun that the
prosecution’s firearms expert opined was the same gun responsible for the five
spent cartridges at the scene of the shooting. [Marshall] was charged with felony
murder, assault with intent to rob while armed, and felony firearm. [Marshall] was
tried jointly with [defendant] before separate juries. [People v Marshall,
unpublished per curiam opinion of the Court of Appeals, issued October 22, 2020
(Docket No. 345927), pp 1-2.]
In January 2000, following a jury trial, defendant was convicted of second-degree murder, assault
with intent to rob while armed, and felony-firearm. In February 2000, the trial court sentenced
defendant as noted above, departing upwards from defendant’s recommended sentencing
guidelines range of 10 to 25 years’ imprisonment.
Defendant thereafter appealed his convictions and sentences, which this Court affirmed in
2002. See People v Hubbert, unpublished per curiam opinion of the Court of Appeals, issued
December 3, 2002 (Docket No. 226318), p 1. Notably, defendant argued that the trial court made
an improper “finding at sentencing that [defendant] was actually guilty of felony-murder, even
though the jury found him guilty only of the lesser offense of second-degree murder.” Id. at 5. In
rejecting defendant’s argument, this Court reasoned that “the trial court’s sentencing decision was
based only on the facts of the charged offense,” and that the trial court was permitted to consider
whether defendant committed a more serious offense during sentencing. Id. The Michigan
Supreme Court subsequently denied defendant’s delayed application for leave to appeal. People
v Hubbert, 468 Mich 940 (2003).

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In 2020, codefendant Marshall appealed by right his own convictions and sentences of 46
to 70 years’ imprisonment for second-degree murder, 5 to 15 years’ imprisonment for assault with
intent to rob while armed, and two years’ imprisonment for felony-firearm. Marshall, unpub op
at 1. This Court vacated Marshall’s sentence for second-degree murder and remanded for
resentencing, reasoning that the sentencing court was required to consider the attributes of youth
as described in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), when
evaluating the sentencing considerations announced in People v Snow, 386 Mich 586; 194 NW2d
314 (1972). Marshall, unpub op at 6. On remand, Marshall was resentenced to 18 to 30 years’
imprisonment for his second-degree murder conviction and discharged on March 11, 2024.3
In June 2022, defendant, in propria persona, moved for relief from judgment and for an
evidentiary hearing to address claims of ineffective assistance of counsel. Defendant argued that
his sentence for second-degree murder was invalid because the trial court failed to evaluate his
youth, as described in Miller, in the context of the Snow factors. He also contended that his
sentence was invalid because the trial court improperly considered his conduct to amount to felony
murder, an offense that defendant was acquitted of. In July 2023, the trial court denied defendant’s
motion, reasoning that he failed to establish good cause by demonstrating ineffective assistance of
counsel. This appeal ensued.
II. STANDARDS OF REVIEW
This Court “review[s] a trial court’s decision on a motion for relief from judgment for an
abuse of discretion and its findings of facts supporting its decision for clear error.” People v Swain,
288 Mich App 609, 628; 794 NW2d 92 (2010). “A trial court abuses its discretion when its
decision falls outside the range of reasonable and principled outcomes, or makes an error of law.”
Id. at 628-629 (citations omitted). Clear error occurs “if, after a review of the record, this Court is
left with a definite and firm conviction that a mistake was made.” People v Meeker, 340 Mich
App 559, 563; 986 NW2d 622 (2022).
This Court also reviews a trial court’s sentencing decisions for an abuse of discretion.
People v Posey, 512 Mich 317, 325; 1 NW3d 101 (2023). A trial court abuses its discretion if the
sentence imposed is not “proportionate to the seriousness of the circumstances surrounding the
offense and the offender.” People v Steanhouse, 500 Mich 453, 460; 902 NW2d 327 (2017)
(quotation marks and citation omitted).
“Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016). This Court reviews for clear error a trial court’s factual findings, and questions of
constitutional law are reviewed de novo. Id. at 188.
III. ANALYSIS
3 See Michigan Department of Corrections, Offender Tracking Information System (“OTIS”)
<https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=165860> (accessed
November 5, 2025).

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Defendant argues that the trial court erred by denying his motion for relief from judgment
on the basis that he failed to establish good cause under MCR 6.508(D)(3)(a), and that he is entitled
to resentencing for his second-degree murder conviction. We agree.
A defendant who files a motion for relief from judgment bears the burden of establishing
entitlement to the relief requested. MCR 6.508(D). Relief is not proper if a defendant “alleges
grounds for relief that could have been previously raised, unless the defendant demonstrates both
good cause for failing to raise such grounds earlier as well as actual prejudice.” People v Johnson,
502 Mich 541, 565; 918 NW2d 676 (2018). See also MCR 6.508(D)(3)(a) and (b). The
requirement of good cause can be “established by proving ineffective assistance of appellate
counsel . . . or by showing that some external factor prevented counsel from previously raising the
issue.” People v Reed, 449 Mich 375, 378; 535 NW2d 496 (1995) (citation omitted).
While defendant raised a sentencing issue in his initial appeal, it was not related to the
issues he asserted in his motion for relief from judgment, which alleged error based on the trial
court’s failure to apply the Snow factors or consider his juvenile status at sentencing. See Hubbert,
unpub op at 5. Because defendant could have raised these issues in his direct appeal, under MCR
6.508(D)(3), he must establish good cause for his failure to do so and actual prejudice. On appeal,
defendant maintains that he can establish good cause through ineffective assistance of counsel,
and that the trial court made improper factual findings in the absence of an evidentiary hearing.
We are not persuaded by defendant’s ineffective assistance of counsel arguments. In
determining that defendant failed to establish good cause, the trial court stated that “[a]ppellate
[counsel] cannot be ineffective for failing to raise an issue that was unlikely to succeed on appeal
or choosing to focus on arguments that had a greater likelihood of success.” While defendant
characterizes this statement as an improper factual finding, we note that the trial court’s
observation is merely a statement of law. See People v Henry (After Remand), 305 Mich App 127,
141; 854 NW2d 114 (2014) (“Counsel is not ineffective for failing to advance a meritless position
or make a futile motion.”).
Further, the trial court did not err by determining that defendant could not prevail on his
ineffective assistance of counsel claim. Defendant’s direct appeal was resolved in 2002. See
Hubbert, unpub op at 1. The relevant caselaw on juvenile sentencing, beginning with Miller, did
not develop for several years after defendant’s direct appeal. Given that caselaw at the time did
not explicitly direct sentencing courts to consider a defendant’s juvenile status, appellate counsel’s
failure to raise the issue in defendant’s initial appeal did not fall below an objective standard of
reasonableness under the prevailing professional norms at the time. See People v Uphaus, 278
Mich App 174, 186; 748 NW2d 899 (2008) (“[T]he test for ineffective assistance of appellate
counsel is the same as that applicable to a claim of ineffective assistance of trial counsel. Hence,
defendant must show that his appellate counsel’s decision . . . fell below an objective standard of
reasonableness and prejudiced his appeal.”) (citation omitted).
However, ineffective assistance of counsel is not the only method of demonstrating good
cause. Good cause may also be established “by showing that some external factor prevented
counsel from previously raising the issue.” Reed, 449 Mich at 378. Notably, in Eads, ___ Mich
App at ___; slip op at 5, this Court considered whether a defendant established good cause in
support of a juvenile-offender sentencing challenge, holding that “the fact that [the defendant’s]

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direct appeal occurred well before Miller and its progeny came into being is enough in itself to
establish good cause under MCR 6.508(D)(3)(a) for failing to raise the challenge at that time.”
Therefore, while defendant cannot demonstrate good cause on the basis of ineffective assistance
of counsel, good cause is established based on the recent changes in the law with respect to the
sentencing of juvenile offenders.
In order to show that he is entitled to resentencing, however, defendant must also
demonstrate actual prejudice. In the context of a challenge to a sentence, a showing of “actual
prejudice” means that defendant must establish that his sentence is invalid. MCR
6.508(D)(3)(b)(iv). Under the principles announced in Eads, we agree that defendant’s second-
degree murder sentence is invalid and that he is entitled to resentencing.
In Eads, ___ Mich App at ___; slip op at 1, this Court held that a term of 50 to 75 years’
imprisonment for a second-degree murder conviction of a juvenile offender constituted an
unconstitutional and disproportionate sentence. The Eads Court noted that the defendant was
effectively serving a life sentence, which was defined by the United States Sentencing Commission
to be approximately 39 years or more. Id. at ___; slip op at 9. Additionally, the defendant was
not subject to the same procedural safeguards provided to individuals convicted of the more serious
offense of first-degree murder, who “by default, could not receive a term-of-years sentence with a
minimum higher than 40 years or a maximum higher than 60 years,” under MCL 769.25a(4)(c).
Id. at ___; slip op at 11.
The Court emphasized that under Snow’s proportionality factors, sentencing courts must
consider the mitigating effects and attendant characteristics of a defendant’s youth. Id. at ___; slip
op at 14. See Snow, 386 Mich at 592 (noting four basic considerations for determining an
appropriate sentence including, “(a) the reformation of the offender, (b) protection of society, (c)
the disciplining of the wrongdoer, and (d) the deterrence of others from committing like offenses”).
The Eads Court also reasoned,
As previously detailed, Eads, despite his juvenile status and all that has now been
recognized to come with it, received a sentence for second-degree murder that
would require him to outlive his life expectancy before even becoming eligible for
parole and would deny him a meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation. Indeed, the sentence is, in purpose and
effect, even more severe in some respects than the life-sentence alternative that our
Supreme Court has now deemed so disproportionate as to be categorically
unconstitutional for juvenile offenders such as Eads. We cannot conclude that such
a sentence nonetheless meets our state’s proportionality requirement. [Eads, ___
Mich App at ___; slip op at 14-15 (citation omitted).].
The Court further concluded that the trial court failed to “consider Eads’s youth and its attendant
characteristics as potentially mitigating factors” when imposing its sentence. Id. at ___; slip op at
15.
The principles announced in Eads apply to defendant’s sentence for second-degree murder.
The trial court sentenced defendant to 40 to 60 years’ imprisonment. Although this is slightly less
than the term of 50 to 75 years at issue in Eads, defendant’s sentence is still lengthy enough to

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effectively be a life sentence. Id. at ___; slip op at 9 (noting that a life sentence is defined as
approximately 39 years or more). Further, defendant’s sentence for second-degree murder is
equivalent to the maximum default sentence for a juvenile who committed first-degree murder, a
crime of which defendant was acquitted. Id. at ___; slip op at 11.
It is also clear from the record that the trial court did not consider defendant’s juvenile
status and the mitigating factors of his youth during sentencing. Rather, the trial court’s statements
focused primarily on the nature of the offense, noting that it was a “heinous,” “cold-blooded,” and
“calculated” crime. The trial court also relied heavily on the fact that defendant lied regarding his
involvement in the shooting and that his explanation of his involvement evolved throughout the
case, but did not consider this behavior in light of the mitigating factors of youth announced in
Miller, 567 US at 471 (noting the “significant gaps” between adults and juveniles for the purposes
of sentencing).
The result of codefendant Marshall’s appeal further demonstrates that defendant’s sentence
is invalid. With regard to Marshall’s second-degree murder sentence, this Court directed the trial
court to “properly balance the objectives articulated in Snow which will necessitate consideration
of the distinctive attributes of defendant’s youth.” Marhsall, unpub op at 8. On remand, Marshall
was resentenced to 18 to 30 years’ imprisonment and discharged on March 11, 2024, while in
contrast, defendant’s earliest release date is May 28, 2036.4 Defendant therefore has established
that his sentence is invalid and that he is entitled to resentencing, consistent with the principles
outlined in Eads and Snow.
Defendant lastly contends that on remand, the trial court should be instructed to follow the
rule announced in People v Beck, 504 Mich 605, 609; 939 NW2d 213 (2019), that trial courts may
not consider conduct that a defendant was acquitted of during sentencing. We disagree.
In Beck, the Michigan Supreme Court held that “[o]nce acquitted of a given crime, it
violates due process to sentence the defendant as if he committed that very same crime.” Id.
Recently, this Court in People v Motten, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket
No. 363044); slip op at 1, clarified “that Beck’s holding is not retroactive on collateral review.”
Notably, “a collateral attack occurs whenever a challenge is made to a judgment in any manner
other than through a direct appeal.” People v Howard, 212 Mich App 366, 369; 538 NW2d 44
(1995).
Defendant argues that—despite Motten’s holding that Beck does not apply on collateral
review—this Court should instruct the trial court not to consider acquitted conduct during
sentencing. He bases this argument in part on the fact that this Court provided such an instruction
when remanding Marshall’s sentence. See Marshall, unpub op at 8. While unpublished opinions
may be persuasive, they are not binding. People v Green, 260 Mich App 710, 720 n 5; 680 NW2d
477 (2004). Further, Motten was decided after this Court remanded Marshall’s sentence. Because
4 See Michigan Department of Corrections, OTIS
<https://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdocNumber=305277> (accessed
November 5, 2025).

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defendant has exhausted his direct appeal and is collaterally challenging his sentence, Beck does
not apply retroactively and an instruction regarding Beck is not warranted on remand.
In conclusion, defendant’s term-of-years sentence of 40 to 60 years’ imprisonment for
second-degree murder is invalid and he is entitled to resentencing, consistent with Eads. We
reverse the trial court’s order denying defendant’s motion for relief from judgment, vacate
defendant’s sentence for second-degree murder, and remand for further proceedings consistent
with this opinion. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello

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