People v. Wiley, 919 N.W.2d 802, 324 Mich. App. 130 (2018)

May 4, 2018 · Court of Appeals of Michigan · No. 336898; No. 338870

919 N.W.2d 802, 324 Mich. App. 130

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Christopher WILEY, Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee,
v.
William Lawrence Rucker, Defendant-Appellant.

No. 336898
No. 338870

Court of Appeals of Michigan.

Submitted April 10, 2018, at Detroit.
Decided May 4, 2018, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Jon P. Wojtala, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Peter Jon Van Hoek ) and Deborah LaBelle for Christopher Wiley.

Robert Tomak and Deborah LaBelle for William L. Rucker.

Amicus Curiae: Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Laura Moody, Chief Legal Counsel, and B. Eric Restuccia, Deputy Solicitor General, for the Attorney General.

Before: Boonstra, P.J., and Beckering and Ronayne Krause, JJ.

Beckering, J.

These appeals arise in the aftermath of the United States Supreme Court's proclamation that mandatory life-without-parole sentencing schemes are unconstitutional with respect to juvenile offenders and the Michigan Legislature's enactment of MCL 769.25a in an attempt to retroactively rectify the problem. In Docket No. 336898, defendant Christopher Wiley appeals by right the trial court's order resentencing him under MCL 769.25a to 25 to 60 years' imprisonment for his 1995 conviction of first-degree murder, MCL 750.316. In Docket No. 338870, defendant William Lawrence Rucker appeals by right the trial court's order resentencing him under MCL 769.25a to 30 to 60 years' imprisonment for his 1993 conviction of first-degree murder, MCL 750.316.¹ Both defendants allege on appeal that MCL 769.25a(6) unconstitutionally deprives them of having earned disciplinary credits applied to their term-of-years sentences. These appeals were consolidated by order of this Court.²

We affirm the sentences defendants received at the time of their resentencings, but we agree with their contention that MCL 769.25a(6) is unconstitutional. Put simply, we agree with the analysis of our federal colleague Judge Mark A. Goldsmith in Hill v. Snyder , 308 F.Supp.3d 893 (E.D. Mich., 2018), in which he concluded that MCL 769.25a(6) runs afoul of the Ex Post Facto Clause of the United States and Michigan Constitutions.

I. RELEVANT LEGAL HISTORY

As alluded to above, these appeals arise following the United States Supreme Court's decisions in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), and our Legislature's concomitant enactment of MCL 769.25a.

The Miller Court held, in relevant part:

[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment's ban on cruel and unusual punishment. [ Miller , 567 U.S. at 489, 132 S.Ct. 2455.]

Subsequently, the Supreme Court recognized that the ruling in Miller had resulted in some confusion and disagreement among various state courts about whether Miller applied retroactively. Montgomery , 577 U.S. at ----, 136 S.Ct. at 725. In determining that Miller was to be afforded retroactive application, the Court subsequently explained:

Miller's conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller's central intuition-that children who commit even heinous crimes are capable of change. [ Id. at ----, 136 S.Ct. at 736 (citations omitted).]

After Miller but before Montgomery , our Legislature enacted MCL 769.25, which set forth the procedure for resentencing criminal defendants who fit Miller 's criteria, provided either that their case was still pending in the trial court or that the applicable time periods for appellate review had not elapsed. In other words, MCL 769.25 applied only to cases that were not yet final; MCL 769.25 did not retroactively apply Miller to cases that were final. See 2014 PA 22, effective March 4, 2014.

However, in anticipation of the possibility that Miller might be determined to apply retroactively, our Legislature simultaneously enacted MCL 769.25a, which set forth the procedure for resentencing defendants who fit Miller 's criteria even if their cases were final. See 2014 PA 22, effective March 4, 2014. In other words, if Miller were determined to apply retroactively, MCL 769.25a would apply it retroactively to cases that were final. MCL 769.25a states:

(1) Except as otherwise provided in subsections (2) and (3), the procedures set forth in section 25 of this chapter do not apply to any case that is final for purposes of appeal on or before June 24, 2012.^[³ ^] 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 application for leave to appeal is filed in the state supreme court and is denied or a timely filed motion for rehearing is denied.

(c) 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 , 576 [sic] U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407]; 183 L.Ed.2d 407; 132 S. Ct. 2455 (2012), applies retroactively to all defendants who were under the age of 18 at the time of their crimes, and that decision is final for appellate purposes, the determination of whether a sentence of imprisonment for a violation set forth in section 25(2) of this chapter shall be imprisonment for life without parole eligibility or a term of years as set forth in section 25(9) of this chapter shall be made by the sentencing judge or his or her successor as provided in this section. For purposes of this subsection, a decision of the state supreme court is final when either the United States supreme court denies a petition for certiorari challenging the decision or the time for filing that petition passes without a petition being filed.

(3) 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 , 576 [sic] U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407]; 183 L.Ed.2d 407; 132 S. Ct. 2455(2012), applies retroactively to all defendants who were convicted of felony murder under section 316(1)(b) of the Michigan penal code, 1931 PA 328, MCL 750.316, and 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 shall be imprisonment for life without parole eligibility or a term of years as set forth in section 25(9) of this chapter shall be made by the sentencing judge or his or her successor as provided in this section. For purposes of this subsection, a decision of the state supreme court is final when either the United States supreme court denies a petition for certiorari challenging the decision with regard to the retroactive application of Miller v. Alabama , 576 [sic] U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407], 567 U.S. 460; 183 L.Ed.2d 407; 132 S. Ct. 2455 (2012), to defendants who committed felony murder and who were under the age of 18 at the time of their crimes, or when the time for filing that petition passes without a petition being filed.

(4) The following procedures apply to cases described in subsections (2) and (3):

(a) Within 30 days after the date the supreme court's decision becomes final, the prosecuting attorney shall provide a list of names to the chief circuit judge of that county of all defendants who are subject to the jurisdiction of that court and who must be resentenced under that decision.

(b) Within 180 days after the date the supreme court's decision becomes final, the prosecuting attorney shall file motions for resentencing in all cases in which the prosecuting attorney will be requesting the court to impose a sentence of imprisonment for life without the possibility of parole. A hearing on the motion shall be conducted as provided in section 25 of this chapter.

(c) If the prosecuting attorney does not file a motion under subdivision (b), the court shall sentence the individual to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years. Each victim shall be afforded the right under section 15 of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.765, to appear before the court and make an oral impact statement at any resentencing of the defendant under this subdivision.

(5) Resentencing hearings under subsection (4) shall be held in the following order of priority:

(a) Cases involving defendants who have served 20 or more years of imprisonment shall be held first.

(b) Cases in which the prosecuting attorney has filed a motion requesting a sentence of imprisonment for life without the possibility of parole shall be held after cases described in subdivision (a) are held.

(c) Cases other than those described in subdivisions (a) and (b) shall be held after the cases described in subdivisions (a) and (b) are held.

(6) A defendant who is resentenced under subsection (4) shall be given credit for time already served, but shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant's minimum or maximum sentence.

The instant appeals challenge the proscription in MCL 769.25a(6) against applying good-time and disciplinary credits when resentencing juvenile offenders to sentences during which they will become eligible for parole, in addition to raising other constitutional challenges.

II. FACTUAL AND PROCEDURAL HISTORIES

A. DOCKET NO. 336898-DEFENDANT WILEY

The events leading to Wiley's conviction of first-degree murder involved the death of Jamal Cargill on June 22, 1994, and were described by this Court as follows:

Defendant entered the backyard of a home where several people, including the victim, were playing basketball. Defendant, who had a gun concealed on his person, asked who had been messing with his car. No one threatened defendant or tried to hurt him. Defendant twice asked the victim why he was smiling, and placed his hand on the gun. The victim told defendant that he was not scared, but did not rush defendant and made no motions toward him. Defendant pulled out the gun, cocked it, and pointed at the victim's chest area. Defendant then fired seven to eight shots at the victim. After the victim fell, defendant ran away but then came back when the victim began to get up. Defendant then fired two more shots at the victim. [ People v. Wiley , unpublished per curiam opinion of the Court of Appeals, issued November 21, 1997 (Docket No. 193252), 1997 WL 33331087.]

At the time this crime was committed, Wiley was 16 years and 9 months old. Wiley was convicted on August 30, 1995, after a jury trial, of first-degree murder, MCL 750.316, and felony-firearm, MCL 750.227b, and he was originally sentenced on December 19, 1995, to life in prison without parole for his first-degree murder conviction and two years' imprisonment for his felony-firearm conviction.

After the issuance of Miller and Montgomery , and the enactment of MCL 769.25a, the Wayne County Prosecutor's Office prepared a sentencing memorandum indicating that it would not seek to resentence Wiley to life in prison without parole but would instead seek to have Wiley resentenced on his first-degree murder conviction "to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years" as set forth in MCL 769.25a(4)(c). While numerous prison misconducts were documented for Wiley from 1996 until 2008, the prosecutor's office noted that, while in prison, Wiley had completed his general equivalency diploma (GED), had enrolled in several community college courses, and had maintained employment in the prison in various capacities since 1999. The prosecution specifically requested that the trial court resentence Wiley to a term of 35 to 60 years' imprisonment for his first-degree murder conviction.

Wiley's resentencing hearing was held on December 21, 2016. After a statement from the victim's family and Wiley's allocution, the trial court reviewed the history of the case and sentencing, as well as Wiley's record while in prison and his achievements. The trial court then stated as follows:

I think it was a horrific crime, and I certainly hope that you don't ever forget about what you've done, and before there's any confrontational situation again, you think about what happened the last time you didn't think, 'cuz I think you really went looking for trouble.

But I am going to, I think there is sufficient time for completion of programming within the 25 years and a review at that point by the Parole Board for determining whether or not he has met the standards that they feel are adequate for parole, and they've got the ability to keep him up to 60 years, so the sentence will be 25 to 60 years on the first[-]degree murder with credit for 7,441 days served, consecutive to the felony firearm which he will get credit for 700, the 2 years on the felony firearm, and be given credit for the 730 days served.

I know that that may not be satisfactory to the Cargill family, but there is nothing that this court can do to restore the life of your brother, son, or friend, and I'm, I think we're looking at a situation in all of these cases where it's not just one family but multiple families and multiple people whose lives are destroyed by the senselessness of these actions.

I only hope that with the sentence that you will continue to grow and that you will, if paroled, become a productive member of society.

A judgment of resentencing was entered on December 21, 2016. Wiley appealed, contending that MCL 769.25a(6), which deprives him of sentencing credits on his term-of-years sentence, violates the Ex Post Facto Clause of both the Michigan and United States Constitutions, U.S. Const., art. I, § 10, and Const. 1963, art. 1, § 10. He also contends that the statute violates Const. 1963, art. 2, § 9, because it repealed "Proposal B" concerning parole eligibility, and Const. 1963, art. 4, § 24, because it violates the Title-Object Clause.

B. DOCKET NO. 338870-DEFENDANT RUCKER

The events leading to Rucker's conviction of first-degree murder involved the death of Earl Cole on November 27, 1992, and were described by this Court as follows:

There was evidence of animosity between defendant and the decedent because of defendant's replacement by the decedent as the drug seller at the Tireman address. Further, defendant brought a shotgun to the Tireman address and talked the decedent into leaving the home with him. Later, a neighbor heard someone say, "Please don't shoot me," just prior to shots being fired. The decedent was found dead from five gunshot wounds, which were inflicted from a gun that had to be reloaded each time it was fired. Finally, defendant told various stories to different people regarding what had happened. [People v. Rucker , unpublished memorandum opinion of the Court of Appeals, issued December 29, 1994 (Docket No. 167012).]

At the time this crime was committed, Rucker was 17 years and 3 months old. Rucker was convicted on May 20, 1993, after a jury trial, of first-degree murder, MCL 750.316, and felony-firearm, MCL 750.227b. Rucker was originally sentenced on June 8, 1993, to life in prison without parole for his first-degree murder conviction and to two years' imprisonment for his felony-firearm conviction.

After Miller and Montgomery were issued and MCL 769.25a was enacted, the Wayne County Prosecutor's Office prepared a sentencing memorandum indicating that it would not seek to resentence Rucker to life in prison without parole, but would instead seek to have Rucker resentenced on his first-degree murder conviction "to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years," as set forth in MCL 769.25a(4)(c). The prosecution detailed Rucker's juvenile record. While numerous misconducts were documented for Rucker from 1993 until 2016, the prosecutor's office noted that, while incarcerated, Rucker completed his GED and participated in numerous training and employment opportunities or classes. The prosecution requested that the trial court resentence Rucker to a term of 32 to 60 years' imprisonment for his first-degree murder conviction.

Rucker's resentencing hearing was held on February 28, 2017. After a statement from the victim's mother and Rucker's allocution, the trial court resentenced Rucker to 30 to 60 years in prison for the first-degree murder conviction, with credit for 8,132 days on the first-degree murder conviction and 730 days credit on the felony-firearm conviction. At the conclusion of the resentencing hearing, Rucker's counsel, for purposes of record preservation, stated the following:

Any challenges to mandatory sentencing range of twenty-five to forty on the minimum, and sixty on the maximum per [ Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ]. I'm just placing them on the record, and to preserve any ex-post facto challenges to the denial of disciplinary credits, per MCL 769.25a(6).

A judgment of resentencing was entered on February 28, 2017. Rucker appealed, contending that MCL 769.25a(6) unconstitutionally deprives him of disciplinary credits in violation of the Ex Post Facto Clause of the United States Constitution, U.S. Const., art. I, § 10, and that his minimum sentence was imposed in contravention of Alleyne because it was based on judge-found facts.

III. SUBJECT-MATTER JURISDICTION

Before addressing the substantive issues on appeal, it is necessary to address the prosecution's initial contention that this Court lacks subject-matter jurisdiction to review defendants' claims. Specifically, the prosecution asserted in both appeals:

Since defendant's constitutional claim has no effect on the validity of his sentence, but only to how the Department of Corrections is calculating parole eligibility, it seems that defendant's challenge would be better directed in a suit against the Department of Corrections and not in an appeal of his validly imposed sentence.

The prosecution in Wiley's case further expanded on this argument in its brief as follows:

Judicial review of a Parole Board decision is governed by MCL 791.234(11). While the statute provides an avenue for the prosecution to appeal the granting of a prisoner's release on parole, it does not extend the same for a defendant seeking to challenge the Board's parole decisions, including the awarding or denial of disciplinary credits.... Importantly, this Court has no subject-matter jurisdiction to consider defendant's challenge to the Parole Board's decisions in determining a prisoner's eligibility for parole or to deny him parole.

The prosecution therefore contended that the "current appeal[s are] not the correct vehicle for such review" and suggested that these defendants can only seek redress "by filing a complaint for habeas corpus challenging the legality of [their] detention or an action for mandamus to compel the Board to comply with its statutory duties." We disagree.

First, the prosecution is mistaken regarding the gist of these appeals. It is well recognized and undisputed that the Department of Corrections "possesses sole jurisdiction over questions of parole." Hopkins v. Parole Bd. , 237 Mich. App. 629, 637, 604 N.W.2d 686 (1999), citing MCL 791.204. However, defendants are not challenging a decision of the Parole Board. Rather, defendants are challenging the constitutionality of the statutory provision, MCL 769.25a(6), that allows "credit for time already served" but that precludes the receipt of "any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant's minimum or maximum sentence." This Court is neither usurping nor trespassing on the Parole Board's authority and "exclusive discretion to grant or deny parole." Hopkins , 237 Mich. App. at 637, 604 N.W.2d 686. Under MCR 7.203(A)(1), this Court has jurisdiction over "[a] final judgment or final order of the circuit court ...." In a criminal case, a final order or judgment encompasses "a sentence imposed following the granting of a motion for resentencing[.]" MCR 7.202(6)(b)(iii ). We therefore reject the prosecution's initial challenge to this Court's subject-matter jurisdiction over these appeals.

Second, the prosecution's desire to prevent this Court from weighing in on a constitutional question of law that directly affects defendants' sentences of incarceration and their eligibility for parole-unless they file a habeas corpus complaint or a mandamus action, for which appointment of counsel for the indigent is discretionary, not mandatory-smacks of gamesmanship. Regardless, our appellate courts have, in fact, weighed in on similar issues before without requiring civil actions to do so. See People v. Tyrpin , 268 Mich. App. 368, 710 N.W.2d 260 (2005) (determining whether a defendant was entitled to good-time credits at resentencing when credits were earned "in conjunction with an illegal sentence"), and People v. Cannon , 206 Mich. App. 653, 522 N.W.2d 716 (1994) (holding that according to MCL 51.282, a prisoner may not be deprived of good-time credits by setting a specific release date and preventing the prisoner from earning the credits). Moreover, the relevant entities that would be involved in a habeas corpus complaint or mandamus action are actively involved in this case. The Michigan Attorney General, who acts as the chief law enforcement officer for the State⁴ and has the authority to intervene in any matter "when in his own judgment the interests of the state require it,"⁵ filed amicus briefs in both appeals,⁶ and his Deputy Solicitor General actively participated in oral argument.⁷ The Attorney General also took over briefing for the prosecution. Thus, the executive branch, which speaks for the Michigan Department of Corrections (MDOC) and the Parole Board, has stated its position. In any event, we are not reviewing a challenge to the conduct of either the MDOC or the Parole Board. We are simply analyzing the constitutionality of a law passed by the third branch of government, our Legislature, and our decision will directly impact Wiley and Rucker because MCL 769.25a(6) affects both their minimum and maximum sentences. Because everyone agrees that time is of the essence with respect to this constitutional issue, we deem it appropriate to address the question of law that was raised on appeal by Wiley and Rucker.

And finally, it is worth noting that the tables have turned on the parties' opposing positions with respect to whether we should address the constitutionality of MCL 769.25a(6). Shortly after the prosecution filed its briefs challenging subject-matter jurisdiction as to the constitutional questions presented, it changed its stance when the United States Court of Appeals for the Sixth Circuit issued an opinion in Hill v. Snyder , 878 F.3d 193, 213 (C.A. 6, 2017), remanding a federal civil rights act case to the federal district court for a substantive analysis of what it deemed to be a "plausible" allegation that MCL 769.25a(6) violates the Ex Post Facto Clause.⁸ Following the Sixth Circuit's remand, the prosecution filed motions to expedite the appeals before us "on the merits," conceding that determining the matter immediately in these cases was appropriate because each

Defendant asserts that he is being denied good time and disciplinary credits that would permit early parole consideration by the Michigan Department of Corrections or a reduction of the maximum sentence. Those claimed credits will continue to accrue during the pendency of this appeal and cannot possibly be applied, if defendant's claim is successful, until the appeal reaches finality.

This Court granted the prosecution's motions to expedite these appeals.⁹ And it was after the Sixth Circuit tipped a hopeful hand to defendants when remanding Hill that they each filed motions seeking to voluntarily withdraw their appeals from this Court. The prosecution objected to defendants' motions, asking in its briefs that we either "deny the motion[s], or, alternatively, grant the motion[s] and dismiss the appeal[s] with prejudice, ruling that [defendants Wiley and Rucker have] waived any claim that [they are] entitled to disciplinary credits under the Ex Post Facto Clause." The prosecution accused defendants of forum shopping while claiming that it was not seeking to do the same thing itself, explaining:

The State is not looking to obtain a tactical advantage, but rather seeks resolution of the underlying question of state law in the appropriate forum. The State courts are that proper forum and are best suited to interpret state law on how Michigan's credit system operates.... The proper resolution of [Wiley's and Rucker's motions to dismiss] is to deny the motion[s] and leave [Wiley and Rucker] to [their] arguments on appeal.

In his reply brief, Wiley accused the prosecution of forum shopping because it objected to his motion to withdraw, but he also requested that if we denied his motion, we hold his appeal in abeyance pending a decision in Hill . This panel denied defendants' motions to withdraw their appeals,¹⁰ and the matter proceeded to oral arguments, where all interested parties had their say.

IV. MCL 769.25a(6) AND THE EX POST FACTO CLAUSE

Defendants contend that MCL 769.25a(6) violates the Ex Post Facto Clause of the United States and Michigan Constitutions, U.S. Const., art. I, § 10, and Const. 1963, art. 1, § 10, because it precludes them from having disciplinary credits applied to their term-of-years sentences, and thus, MCL 769.25a(6) is a retroactive provision that increases their potential sentences or punishments. We agree.

To be preserved for appellate review, an issue must be raised before and addressed by the trial court. People v. Giovannini , 271 Mich. App. 409, 414, 722 N.W.2d 237 (2006). Wiley did not raise concerns regarding the Ex Post Facto Clause or any other constitutional claim at his resentencing. Consequently, this issue is not preserved with regard to Wiley. Nonetheless, we conclude that appellate review of his constitutional challenge is appropriate. See People v. Wilson , 230 Mich. App. 590, 593, 585 N.W.2d 24 (1998) ("Although [a] defendant should have challenged the constitutionality of the statute in the trial court to preserve the issue for appellate review, we may still consider this constitutional question absent a challenge below."); People v. Blunt , 189 Mich. App. 643, 646, 473 N.W.2d 792 (1991) ("[W]here a significant constitutional question is presented, as in this case, appellate review is appropriate."). Although Rucker did not ask the trial court to decide either of his challenges-his ex post facto challenge or his challenge under Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), to the minimum sentence imposed-he did place his objections on the record, so they could arguably be considered preserved.

This Court reviews de novo constitutional issues and questions of statutory interpretation. People v. Harris , 499 Mich 332, 342, 885 N.W.2d 832 (2016). However, we review unpreserved constitutional issues for plain error affecting the defendant's substantial rights. People v. Bowling , 299 Mich. App. 552, 557, 830 N.W.2d 800 (2013). Under the plain error rule, a "defendant bears the burden of establishing that: (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." People v. Jones , 468 Mich 345, 355, 662 N.W.2d 376 (2003). "To establish that a plain error affected substantial rights, there must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court proceedings." Id . at 356, 662 N.W.2d 376. "[R]eversal is only warranted if the defendant is actually innocent or the error seriously undermined the fairness, integrity, or public reputation of the trial." People v. Pipes , 475 Mich. 267, 274, 715 N.W.2d 290 (2006).

As a starting point, we recognize that any challenge to the constitutionality of a statute is governed by certain precepts. Specifically:

Statutes are presumed to be constitutional unless their unconstitutionality is clearly apparent. Statutes must be construed as proper under the constitution if possible. The party opposing the statute bears the burden of overcoming the presumption and proving the statute unconstitutional. [ People v. MacLeod , 254 Mich. App. 222, 226, 656 N.W.2d 844 (2002) (citations omitted).]

The particular statutory provision being challenged as unconstitutional and violative of the Ex Post Facto Clause is MCL 769.25a(6), which states as follows:

A defendant who is resentenced under subsection (4) shall be given credit for time already served, but shall not receive any good time credits, special good time credits, disciplinary credits, or any other credits that reduce the defendant's minimum or maximum sentence.

MCL 769.25a(4) refers to the procedure for resentencing juvenile offenders convicted of first-degree murder both when the prosecution seeks to continue a life-in-prison-without-parole sentence (regardless of the sentence ultimately imposed), MCL 769.25a(4)(b), and when the prosecution does not seek to continue a life-in-prison-without-parole sentence, MCL 769.25a(4)(c). The latter Subdivision, which applies to defendants in the instant cases, directs that a trial court at resentencing "shall sentence the individual to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years." Id .

As discussed by this Court in People v. Tucker , 312 Mich. App. 645, 651, 879 N.W.2d 906 (2015) :

The United States and Michigan Constitutions prohibit ex post facto laws. People v. Callon , 256 Mich. App. 312, 316-317, 662 N.W.2d 501 (2003), citing U.S. Const., art. I, § 10; Const. 1963, art. 1, § 10. This Court has declined to interpret the Ex Post Facto Clause of the Michigan Constitution as affording broader protection than its federal counterpart. Callon , 256 Mich. App. at 317 [662 N.W.2d 501]. All laws that violate ex post facto protections exhibit the same two elements: "(1) they attach legal consequences to acts before their effective date, and (2) they work to the disadvantage of the defendant." Id . at 318 [662 N.W.2d 501]. "The critical question [for an ex post facto violation] is whether the law changes the legal consequences of acts completed before its effective date." Id . (quotation marks and citations omitted; alteration in original). This Court has identified four circumstances that implicate the Ex Post Facto Clauses:

A statute that affects the prosecution or disposition of criminal cases involving crimes committed before the effective date of the statute violates the Ex Post Facto Clauses if it (1) makes punishable that which was not, (2) makes an act a more serious criminal offense, (3) increases the punishment, or (4) allows the prosecution to convict on less evidence. [ Riley v. Parole Bd. , 216 Mich. App. 242, 244, 548 N.W.2d 686 (1996).]

The purpose underlying ex post facto prohibitions is "to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed," and to "restrict[ ] governmental power by restraining arbitrary and potentially vindictive legislation." Weaver v. Graham , 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), overruled in part on other grounds California Dep't of Corrections v. Morales , 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). As stated and explained by the United States Supreme Court in Weaver :

[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.... [A] law need not impair a "vested right" to violate the ex post facto prohibition. Evaluating whether a right has vested is important for claims under the Contracts or Due Process Clauses, which solely protect pre-existing entitlements. The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense. [ Weaver , 450 U.S. at 29-31, 101 S.Ct. 960 (citations omitted).]

Therefore, "[t]he critical question is whether the law changes the legal consequences of acts completed before its effective date." Id. at 31, 101 S.Ct. 960 (holding that as applied to a prisoner whose crime was committed before a statute's effective date, the statute reducing the amount of good-time credit violated the Ex Post Facto Clause). "The imposition of a punishment more severe than that assigned by law when the criminal act occurred is a violation of the Constitution's ex post facto prohibition." Hallmark v. Johnson , 118 F.3d 1073, 1077 (C.A. 5, 1997), citing Weaver , 450 U.S. at 30, 101 S.Ct. 960.

It is undisputed that MCL 769.25aalters the punishment for both convicted and future juvenile offenders who committed or who will commit first-degree murder. Our inquiry therefore focuses on "[w]hether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor ...." Weaver , 450 U.S. at 33, 101 S.Ct. 960. In other words, for purposes of these appeals, does the challenged statutory provision serve to increase the punishment for a prisoner by imposing "new restrictions on eligibility for release" and therefore "make[ ] more onerous the punishment for crimes committed before its enactment"? Id . at 34, 36, 101 S.Ct. 960. We conclude that it does.

As noted at the outset of this opinion, we are not the first court faced with assessing the constitutionality of MCL 769.25a(6). Just a few weeks ago, Judge Goldsmith issued his opinion analyzing this very issue in Hill , 308 F.Supp.3d 893, 2018 WL 1782710. In that case, brought by individuals similarly situated to Wiley and Rucker, Judge Goldsmith determined that MCL 769.25a(6) violates the United States Constitution's ban on ex post facto laws, and in fact, he certified a class of plaintiffs that includes Wiley and Rucker.¹¹ Hill , 308 F.Supp.3d at 911, 915. Although this Court is not bound by the decisions of lower federal courts, we may find their "analyses and conclusions persuasive." Abela v. General Motors Corp. , 469 Mich. 603, 606-607, 677 N.W.2d 325 (2004). After a careful review of Judge Goldsmith's opinion and the applicable law, we find his analysis and conclusions to be, in the words of the Sixth Circuit, "thoughtful and well-reasoned."¹²

The salient portion of Judge Goldsmith's analysis, Hill , 308 F.Supp.3d at 900-911, which we find persuasive and respectfully adopt as our own,¹³ states as follows:

The crux of Plaintiffs' claim ... hinges on an interpretation of the good time and disciplinary credit statutes, and whether these statutes previously afforded credit to individuals who were sentenced to life without parole.

* * *

... [T]he Court concludes that state law regarding good time and disciplinary credits is unmistakably clear and solidly supports [the incarcerated] Plaintiffs' position. Before modification by the Michigan legislature in 2014, Michigan law regarding good time and disciplinary credits made no distinction based on whether the prisoner was serving a life sentence and allowed such a prisoner to earn credit if otherwise eligible.

* * *

Good time and disciplinary credits are applied to a prisoner's minimum and/or maximum sentence in order to determine his or her parole eligibility dates.⁷ Thus, if Michigan's statutory scheme permitted any Plaintiff to earn good time or disciplinary credits at the time the Plaintiff's crime was committed, the removal of such credits increases the Plaintiff's punishment and violates the Ex Post Facto Clause.

* * *

i. Statutory Interpretation

Michigan's statutory scheme regarding good time and disciplinary credits has changed over the years. Prior to 1978, prisoners could apply good time credits to both their minimum and maximum terms; the law was amended in 1978 to provide that prisoners convicted for certain crimes, including first and second-degree murder, could only apply good time credits to their maximum terms. See Wayne Cty. Prosecuting Atty. v. Mich. Dep't of Corrections, No. 186106, 1997 WL 33345050, at *2 (Mich. Ct. App. June 17, 1997). In 1987, good time credits were eliminated altogether for offenses committed on or after April 1, 1987. Id.

Disciplinary credits were created in 1982, and were deducted from both the minimum and maximum sentences of prisoners convicted of certain crimes, including first and second-degree murder. See Mich. Comp. Laws § 800.33(5). Disciplinary credits were less favorable to prisoners than good time credits, as the amount of good time credits available to a prisoner increased with each year of imprisonment, while disciplinary credits remained constant over the entirety of the term to which they applied. See Lowe v. Dep't of Corrections, 206 Mich. App. 128, 521 N.W.2d 336, 338 (1994). The law changed again in 1998 to provide that prisoners who committed certain crimes, including first and second-degree murder, on or after December 15, 1998, or any other crime on or after December 15, 2000, are unable to earn disciplinary credits. See Mich. Comp. Laws §§ 800.33(14) and 800.34(5)....^[¹⁴ ^]

The broad language used in both the good time and the disciplinary credit statutes does not draw any distinction based on whether the prisoner is serving a life sentence.^[¹⁵ ^] The good time credit statute provides as follows:

(2) Except as otherwise provided in this section, a prisoner who is serving a sentence for a crime committed before April 1, 1987, and who has not been found guilty of a major misconduct or had a violation of the laws of this state recorded against him or her shall receive a reduction from his or her sentence as follows:

(a) During the first and second years of his or her sentence, 5 days for each month.

(b) During the third and fourth years, 6 days for each month.

[...]

(g) From and including the twentieth year, up to and including the period fixed for the expiration of the sentence, 15 days for each month.

Mich. Comp. Laws § 800.33(2). The statute providing for disciplinary credit provides,

(3) ... [A]ll prisoners serving a sentence for a crime that was committed on or after April 1, 1987 are eligible to earn disciplinary and special disciplinary credits as provided in subsection (5). Disciplinary credits shall be earned, forfeited, and restored as provided in this section. Accumulated disciplinary credits shall be deducted from a prisoner's minimum and maximum sentence in order to determine his or her parole eligibility date and discharge date.

[...]

(5) ... [A]ll prisoners serving a sentence on December 30, 1982, or incarcerated after December 30, 1982, for the conviction of a crime enumerated in section 33b(a) to (cc) of 1953 PA 232, MCL 791.233b, are eligible to earn a disciplinary credit of 5 days per month for each month served after December 30, 1982. Accumulated disciplinary credits shall be deducted from a prisoner's minimum and maximum sentence in order to determine his or her parole eligibility dates.

Mich. Comp. Laws § 800.33(3), (5).

Nothing in the text of the good time credit or disciplinary credit statutes excludes their application to prisoners serving life sentences. In fact, both statutes use language that is all encompassing. See Mich. Comp. Laws § 800.33(2) ("[A] prisoner who is serving a sentence for a crime ..."); Mich. Comp. Laws § 800.33(5) ("[A]ll prisoners serving a sentence ...").^[¹⁶ ^] Further, the disciplinary credit statute states explicitly that first-degree murderers earn disciplinary credit; it provides that disciplinary credits are earned by those convicted of a crime enumerated in Mich. Comp. Laws § 791.233b -which includes first-degree murder. See § 791.233b(n) (listing Section 316 of the Michigan penal code as one of the enumerated crimes); § 750.316 (first degree murder).⁸

Despite this unambiguous language, Defendants argue there is some shade of gray. They point out that the good time statute indicates that a prisoner "shall receive a reduction" from his or her sentence, up to and including the "period fixed for the expiration of the sentence." Mich. Comp. Laws § 800.33(2). They argue that prisoners serving a life sentence cannot have that sentence "reduced," and that there is no time "fixed" for the "expiration" of such sentence; therefore, they say, this statute cannot be applied to prisoners serving a life term....

This argument is unconvincing. The language may mean that the good time credits are not actually applied to a life sentence so long as it remains a life sentence. But there is no reason to think that a prisoner serving a life sentence could not, nonetheless, earn good time credits. They would be applied if and when the sentence was converted, for some reason, to a fixed sentence. Once changed to a term of years, there is an "expiration" that is "fixed," and the sentence can then be "reduced." In fact, this view of the statutory language is precisely the view of the MDOC, whose practice has routinely been to calculate credits when a prisoner previously serving a life sentence is subsequently resentenced to a term of years....

As for the disciplinary credit statute, Defendants have no explanation for the explicit inclusion of first-degree murder as one of the crimes for which credits could be earned. They maintain that the language in other parts of the statute, which references deductions from a minimum and maximum sentence, means that the statute cannot apply to those serving a life sentence, as such prisoners have no minimum or maximum term.... But again, a plausible interpretation of the statute-and one that renders the statute as a whole internally consistent-is that the disciplinary credits are not applied to a life sentence, although prisoners serving such term still earn them. To agree with Defendants would be to ignore a portion of the statute, and courts have a "duty to give effect, if possible, to every clause and word of a statute." Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (internal quotations omitted); see also Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (describing this rule as "a cardinal principle of statutory construction").

The lack of any ambiguity in the statutory language is, perhaps, best evidenced by the action of the Michigan legislature itself, in adopting Mich. Comp. Laws § 769.25a(6). If the legislature had believed that Michigan law did not provide credits to those convicted of first-degree murder, there would have been no purpose for a provision that expressly stripped them of those credits. The inference is ineluctable that the legislature understood that these individuals would invoke these credits unless the legislature affirmatively repealed them. In doing so, the legislature eloquently testified to the state of Michigan law prior to the adoption of Section 769.25a(6).

ii. Michigan Case Law

The Michigan Supreme Court is in accord with the view that good time credit is earned even by individuals serving life sentences. In Moore v. Buchko, 379 Mich. 624, 154 N.W.2d 437 (1967), the Michigan Supreme Court considered whether a prisoner who had been unconstitutionally sentenced to life imprisonment in 1938 for first-degree murder should receive credit, including good time credit, when he was resentenced following vacation of his conviction, retrial, and conviction for second-degree murder in 1958. Although no opinion received a majority of votes, all the Justices agreed that the prisoner was entitled to good time credit for the time he had served. Justice Souris's opinion, which was joined by Chief Justice Dethmers, concluded that the prisoner was "entitled by statute to the credit he seeks," which was "the nearly 20 calendar years he served under his invalidated conviction ... and the regular and special good time credit he earned during that time." Id. at 438, 441 (Souris, J.). Justice Adams, writing for three other justices, wrote that a sentencing judge "shall give credit for time served under an illegal sentence," and that "[i]t follows, A [sic] fortiori, that such credit includes recognition of regular or special good time earned during an illegal incarceration." Id. at 445 n.3 (Adams, J.).

Justice Brennan addressed the issue of whether the prisoner had earned good time credits in much greater detail, ultimately concluding that "the good time statute purports to give good time credits to every convict who behaves himself in prison." Id. at 447 (Brennan, J.). He described the rationale behind allowing all prisoners, even those serving a life term, to earn credits:

Clearly, the purpose of this enactment is to encourage good behavior by prisoners and thus generally to improve conditions in the prisons and reduce custodial costs to the taxpayers.

Presumably, the statute makes no distinction between lifers and other convicts by reason of the fact that the legislature wanted to encourage good behavior by lifers as well as by all other prisoners.

Admittedly, the good time credit incentive is rather nebulous in the case of a convict imprisoned for life. But since hope and post conviction pleas spring eternal within the incarcerated human breast, it cannot be said the good time credit law is not at least some encouragement to them. At least, it appears that the legislature thought it would be so, and its policy determination is binding on this Court.

Id. Thus, seven of the eight justices joined an opinion that held that the prisoner was entitled to good time credit.⁹

Defendants attempt to distinguish Moore by arguing that Moore was resentenced to a term of years under law that existed at the time of his crime in 1938.... Plaintiffs' new sentencing options, they contend, did not exist until 2014.... However, Defendants have not explained why this should make a difference. Nothing in Moore suggests that the availability of a term-of-years sentence while Moore served his first-imposed sentence had some bearing on the question of his entitlement to credit. Additionally, Defendants' position that Plaintiffs should not receive credit because Michigan law did not provide a constitutional sentence for them until 2014 would punish Plaintiffs for the shortcomings of Michigan's unconstitutional sentencing of youth offenders.

Defendants argue that the Michigan Supreme Court recognized that the good time statute does not apply to someone serving a life sentence in Meyers v. Jackson, 245 Mich. 692, 224 N.W. 356 (1929).^[¹⁷ ^] In Meyers, the petitioner was convicted of murder and sentenced to life in prison; the governor later commuted his sentence "so that the same will expire 15 years from the date of sentence." Id. at 356. The court denied the petitioner's request for good time credit, stating that "if he accepts the benefit of the commutation granted[, he] must accept it in accordance with the terms imposed by the executive authority granting it." Id. at 356-357. The court also noted that "the question of good time applies only to those where the date of expiration of sentence is fixed. Petitioner was sentenced to imprisonment for life. The period of his imprisonment was not fixed." Id. at 356.

This last statement is dictum, as it was not necessary to the Meyers court's holding that a prisoner who accepts a commutation must accept it according to its terms. See Moore, 154 N.W.2d at 447 (Brennan, J.) ("[T]he language in the Meyers Case to the effect that good time allowances do not apply to life sentences was not essential to the decision there."); see also Petition of Cammarata, 341 Mich. 528, 67 N.W.2d 677, 682 (Mich. 1954) ("In Meyers... we held that a prisoner who accepts the benefit of a commutation must accept it in accordance with the terms imposed by the executive authority granting it.").

Thus, the only decision by the Michigan Supreme Court containing a holding applicable to our case accords with the view that credits are earned by those convicted of first-degree murder and applied to their sentences once those sentences become term-of-years sentences....¹⁰

* * *

For all of the above reasons, this Court interprets Mich. Comp. Laws § 800.33 to provide good time and disciplinary credits to prisoners who were serving a term of life imprisonment. The elimination of those credits by Mich. Comp. Laws § 769.25a(6), therefore, violates the Ex Post Facto Clause of the Constitution ... Defendants must apply good time and disciplinary credits in calculating parole eligibility dates for prisoners resentenced under Mich. Comp. Laws § 769.25a.

⁷ As the Sixth Circuit noted ... "[C]redits deducted from a term-of-years sentence do not automatically result in earlier release; they merely hasten the date on which prisoners fall within the jurisdiction of the Michigan Parole Board. Even after an inmate falls within its jurisdiction, the Board retains discretion to grant or deny parole." [Citation omitted.]

⁸ Whatever exceptions to credit that exist in the statutes have nothing to do with whether the defendant committed first-degree murder. For example, the good time credit statute excepts those who have committed later crimes or were guilty of prison misconduct. See Mich. Comp. Laws § 800.33(2).

⁹ Justice Black concurred only in the result and did not join any opinion.

¹⁰ Defendants cite People v. Tyrpin, 268 Mich.App. 368, 710 N.W.2d 260 (2005), for support, but that case is distinguishable.^[¹⁸ ^] There, the defendant was originally given a determinate one-year jail sentence. After serving some time, the sentence was reversed, based on the prosecutor's appeal that an indeterminate sentence was required. Defendant argued on resentencing that he should receive disciplinary credit that he earned on the initial improper sentence. The court of appeals affirmed the trial court's refusal to award any disciplinary credit, reasoning that if the defendant had been properly sentenced to an indeterminate sentence originally, he would not have been entitled to such credit based on an express exclusion in the statutory language. (This was because, as discussed supra, individuals sentenced for assaultive crimes committed on or after December 15, 1998 were not eligible for disciplinary credits.) Our case is entirely different. Tyrpin sought credit that he would not have received had he been sentenced properly initially. Here, Plaintiffs do not seek any credit they would not have received had they been sentenced properly initially. Tyrpin thus is no help to Defendants. ^[¹⁹ ^].

In light of our determination that MCL 769.25a(6) violates the Ex Post Facto Clause, we need not address Wiley's other constitutional arguments claiming that the statute repeals an initiative adopted by the voters as "Proposal B" concerning parole eligibility or his claim that the statute violates the Title-Object Clause of the Michigan Constitution, Const 1963, art 4, § 24.

V. USE OF JUDICIAL FACT-FINDING

Finally, Rucker contends that his resentencing under MCL 769.25a(4)(c) violated the Sixth Amendment because the trial court used judicially found facts in imposing a minimum sentence of 30 years' imprisonment (rather than 25 years' imprisonment). Citing Alleyne , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and People v. Lockridge , 498 Mich 358, 870 N.W.2d 502 (2015), Rucker argues that the only sentence that could be imposed was 25 to 60 years' imprisonment. According to Rucker , the increase in the minimum sentence from 25 to 30 years was improper because such an increase required the use of facts found either by a jury or to which he admitted. We disagree.

"This Court reviews de novo the proper interpretation of statutes." People v. Allen , 295 Mich. App. 277, 281, 813 N.W.2d 806 (2012). Constitutional issues are also reviewed de novo. People v. Pennington , 240 Mich. App. 188, 191, 610 N.W.2d 608 (2000). A trial court's factual findings are reviewed for clear error. People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013). Any questions of law are to be reviewed de novo, and the trial court's decision about the sentence imposed is reviewed for an abuse of discretion. People v. Malinowski , 301 Mich. App. 182, 185, 835 N.W.2d 468 (2013). "An abuse of discretion occurs when a trial court's decision falls outside the range of reasonable and principled outcomes. A trial court necessarily abuses its discretion when it makes an error of law." People v. Franklin , 500 Mich 92, 100, 894 N.W.2d 561 (2017) (quotation marks and citations omitted). "A trial court's factual finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." Id . (quotation marks and citation omitted).

In accordance with MCL 769.25a(4)(c), if the prosecution opts not to seek resentencing to life in prison without parole,

the court shall sentence the individual to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years. Each victim shall be afforded the right under section 15 of the William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.765, to appear before the court and make an oral impact statement at any resentencing of the defendant under this subdivision.

At Rucker's resentencing, the victim's mother, Cynthia Cole, addressed the court and opposed Rucker's receipt of less than a life sentence. The trial court also had available for its review sentencing memoranda prepared by the prosecution and defense counsel, detailing the original offense, Rucker's prior juvenile criminal history and misconduct while in prison, in addition to any accomplishments attained, such as the procurement of his GED. The prosecution requested that Rucker be resentenced to a term of 32 to 60 years' imprisonment. The trial court elected to impose a sentence of 30 to 60 years for the first-degree murder conviction, seeking to balance punishment for the crime with the severity of the crime, while respecting the concerns expressed by the victim's family.

Contrary to Rucker's argument, the trial court's imposition of a 30-year minimum sentence did not constitute a Sixth Amendment violation proscribed by Alleyne . This Court squarely addressed this issue in this very context in People v. Hyatt , 316 Mich. App. 368, 394-395, 891 N.W.2d 549 (2016),^* stating:

For all that was said in Apprendi [v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ] and its progeny, we note that the Supreme Court's holding in those cases must not be read as a prohibition against all judicial factfinding at sentencing. Indeed, the rules from Apprendi and its progeny do not stand for the proposition that a sentencing scheme in which judges are permitted "genuinely to exercise broad discretion ... within a statutory range" is unconstitutional; rather, as articulated in Cunningham , "everyone agrees" that such a scheme "encounters no Sixth Amendment shoal." Cunningham [v. California ], 549 U.S. [270,] 294[, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) ] (citation and quotation marks omitted; alteration in original; emphasis added). See also Alleyne , 570 U.S. at [116], 133 S.Ct. at 2163 ("Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment."). Therefore, a judge acting within the range of punishment authorized by statute may exercise his or her discretion-and find facts and consider factors relating to the offense and the offender-without violating the Sixth Amendment. Id . at [116], 136 [133] S.Ct. at 2163, citing Apprendi , 530 U.S. at 481, 120 S.Ct. 2348. As explained in Alleyne , 570 U.S. at [117], 133 S.Ct. at 2163 :

[W]ithin the limits of any discretion as to the punishment which the law may have allowed, the judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment. [1 J. Bishop, Criminal Procedure 50 (2d ed., 1872), § 85, at 54.]

[E]stablishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different things. Apprendi , [530 US] at 519, 120 S.Ct. 2348 ( THOMAS, J. , concurring).

Rucker's reliance on Lockridge is similarly unavailing. In Lockridge , 498 Mich. at 364, 870 N.W.2d 502, our Supreme Court was clear that the use of judge-found facts in conjunction with mandatory sentencing guidelines was the source of the constitutional infirmity. Following the release of Lockridge , this Court in People v. Biddles , 316 Mich. App. 148, 158, 896 N.W.2d 461 (2016) further explained:

The constitutional evil addressed by the Lockridge Court was not judicial factfinding in and of itself; it was judicial fact-finding in conjunction with required application of those found facts for purposes of increasing a mandatory minimum sentence range. Lockridge remedied this constitutional violation by making the guidelines advisory, not by eliminating judicial fact-finding.

Rucker was resentenced within the minimum range statutorily mandated by MCL 769.25a(4)(c). The trial court was afforded discretion in determining and imposing a minimum sentence for Rucker that comported with the required statutory range. There is no Sixth Amendment violation as contemplated by Alleyne , Lockridge , or their progeny.

VI. CONCLUSION

This Court has subject-matter jurisdiction of defendants' appeals. MCL 769.25a(6) unconstitutionally deprives defendants of having earned disciplinary credits applied to their term-of-years sentences in violation of the Ex Post Facto Clause of the United States and Michigan Constitutions, U.S. Const., art. I, § 10; Const 1963, art. 1, § 10. MCL 769.25a(6) may not be used to prevent Wiley or Rucker from receiving disciplinary credits on their minimum and maximum sentences. We need not address Wiley's other challenges to the constitutionality of the statute. And Rucker's argument regarding the use of judicial fact-finding when imposing a minimum sentence of 30 years' imprisonment lacks merit.

We affirm defendants' sentences, but we declare MCL 769.25a(6) to be unconstitutional.

Ronayne Krause, J., concurred with Beckering, J.

I agree with the parties (both plaintiff and defendants at various times) that the constitutional ex post facto issue is not properly before us. Further, I discern-from the issues and arguments raised on appeal-no challenge to any aspect of the sentences imposed by the trial court (apart from an Alleyne¹ challenge); rather, the sole issue raised is whether a nonparty (the Parole Board or the Michigan Department of Corrections (MDOC) ) may-in the future-constitutionally apply MCL 769.25a(6) to the unchallenged sentences imposed by the trial court. I dissent from the majority's determination to decide the ex post facto issue in the current context. I concur with the majority's disposition of the Alleyne challenge. Accordingly, I would affirm.

I. THE ISSUES ON APPEAL

In Docket No. 336898, defendant Christopher Wiley ostensibly appeals by right the trial court's order resentencing him to 25 to 60 years' imprisonment for his 1995 conviction of first-degree murder, MCL 750.316, under MCL 769.25a. Wiley's brief on appeal contains neither the required "statement of the basis of jurisdiction," MCR 7.212(C)(4), nor the required "statement of questions involved," MCR 7.212(C)(5). Wiley's arguments on appeal are limited, however, to raising constitutional challenges to MCL 769.25a.² Wiley did not raise any constitutional claims at his resentencing. To be preserved for appellate review, an issue must be raised before and addressed by the trial court. Consequently, the constitutional issues are not preserved with regard to Wiley. People v. Giovannini , 271 Mich. App. 409, 414, 722 N.W.2d 237 (2006). We review unpreserved constitutional issues for "plain error affecting defendant's substantial rights." People v. Bowling , 299 Mich. App. 552, 830 N.W.2d 800 (2013). Under the plain error rule, a "defendant bears the burden of establishing that: (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." People v. Jones , 468 Mich. 345, 355, 662 N.W.2d 376 (2003). "To establish that a plain error affected substantial rights, there must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court proceedings." Id . at 356, 662 N.W.2d 376. "[R]eversal is only warranted if the defendant is actually innocent or the error seriously undermined the fairness, integrity, or public reputation of the trial." People v. Pipes , 475 Mich. 267, 274, 715 N.W.2d 290 (2006). Wiley concedes that the proper analysis is that of plain error, but does not articulate what errors the trial court purportedly made.

In Docket No. 338870, defendant William Lawrence Rucker ostensibly appeals by right the trial court's order resentencing him to 30 to 60 years' imprisonment for his 1993 conviction of first-degree murder, MCL 750.316, under MCL 769.25a. Rucker's brief on appeal asserts that this Court "has jurisdiction of this appeal under MCR 7.203(A)(1) and MCR 7.202(6)(b)(iii).³ Rucker raises two issues on appeal: (1) an Alleyne challenge and (2) a constitutional ex post facto challenge. Rucker arguably preserved those issues in the trial court. With regard to the constitutional challenge, however, Rucker-like Wiley-does not articulate on appeal any errors that the trial court purportedly made.

II. THE PARTIES' MORPHING LEGAL POSITIONS

In responding to Wiley's appeal, plaintiff argued, in part, as follows:

The People first note that this Court has no subject-matter jurisdiction to consider defendant's claim. Defendant's challenge has no relevancy to the validity of his sentence. Defendant was sentenced to a term of years within the range of sentences proscribed [sic] by statute. Defendant's challenge is not that the courts or the prosecution are denying him constitutional rights that would affect the validity of his sentence. The sentencing court does not have authority to award disciplinary or special disciplinary credits. Defendant's challenge is to the legislative branch's denial of credit reductions and the executive branch's execution of that legislative directive in determining when defendant is eligible for parole. Once a defendant is committed to the custody of the Michigan Department of Corrections, authority over a defendant passes out of the hands of the judicial branch. The Michigan Department of Corrections, an administrative agency within the executive branch of government, possesses exclusive jurisdiction over questions of parole. Parole can be granted solely by the Michigan Parole Board, a division of the MDOC. Once a defendant has been lawfully committed to the custody of the MDOC, the Michigan Legislature has determined that the only body that can release defendant from prison is the Parole Board, not the sentencing court or any subsequent reviewing courts. Whether or when a defendant should be released on parole is devoted exclusively to the discretion of the Parole Board. Because parole is a discretionary function, no due process right is implicated. "That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained ... [ ] a hope which is not protected by due process."

The Michigan parole statute ... does not create a right to be paroled. Because the Michigan Parole Board has the discretion whether to grant parole, a defendant does not have a protected liberty interest in being paroled prior to the expiration of his or her sentence. The Sixth Circuit has held that Michigan Complied [sic] Laws § 791.233 does not create a protected liberty interest in parole, because the statute does not place any substantive limitations on the discretion of the parole board through the use of particularized standards that mandate a particular result.

Since defendant's constitutional claim has no effect on the validity of his sentence, but only to how the Department of Corrections is calculating parole eligibility, it seems that defendant's challenge would be better directed in a suit against the Department of Corrections and not in an appeal of his validly imposed sentence. Judicial review of a Parole Board decision is governed by MCL 791.234(11). While the statute provides an avenue for the prosecution to appeal the granting of a prisoner's release on parole, it does not extend the same for a defendant seeking to challenge the Board's parole decisions, including the awarding or denial of disciplinary credits. Prisoners "have no legal right to seek judicial review of the denial of parole by the Parole Board." Importantly, this Court has no subject-matter jurisdiction to consider defendant's challenge to the Parole Board's decisions in determining a prisoner's eligibility for parole or to deny him parole.

The judiciary has limited review of the Parole Board's process in determining parole. But, defendant's current appeal is not the correct vehicle for such review. Challenges to the procedures used by the Parole Board in determining whether to grant parole, how the Board exercised those procedures, or the decisions reached by the Board based on those procedures are properly subject to a totally different appellate procedure.

The Parole Board is an administrative body. By statute, the Parole Board has been entrusted to develop its own guidelines for exercising its discretion in considering prisoners for parole and deciding whether to grant parole. In Hopkins v. Parole Board , this Court determined that there were three avenues for a prisoner to challenge the Parole Board's decisions: (1) review pursuant to a procedure specified in a statute applicable to the particular agency, here the applicable statute being MCL 791.234 ; (2) the method of review for contested cases under the Administrative Procedures Act (APA), MCL 24.201 [et. seq.;] or (3) an appeal pursuant to the Revised Judicature Act (RJA), MCL 600.631. The Court then determined that review under either the APA and RJA was unavailable to prisoners because parole hearings are not contested cases and because the prisoner has no private right to parole. The final avenue for review, MCL 791.234, as previously mention[ed], also does not provide for review. Although none of the avenues for review listed in Hopkins are available, the legality of a prisoner's detention "is not insulated from judicial oversight." The prisoner is still able to challenge the Parole Board's action by filing a complaint for habeas corpus challenging the legality of his detention or an action for mandamus to compel the Board to comply with its statutory duties. It is only by these avenues, and not by an appeal of the underlying sentences, that defendant may challenge the guidelines or decisions of the Parole Board concerning parole. This Court has no subject-matter jurisdiction to review the guidelines of the Parole Board, the process the Parole Board conducted in determining defendant's eligibility for parole, or the Board's final decision regarding parole. [Citations omitted.]

Plaintiff argued similarly-and to a large extent verbatim-in response to Rucker's appeal. The Attorney General subsequently filed amicus curiae briefs in support of plaintiff in both appeals, addressing only the constitutional ex post facto issue.

After the filing of plaintiff's briefs on appeal, both defendants moved to voluntarily dismiss their appeals under MCR 7.218. Plaintiff, then represented principally by the Attorney General, opposed the motions, arguing that the ex post facto issue presented questions of state law that should be decided by a state court. Plaintiff claimed that defendants had moved to dismiss their appeals because of the related putative class action challenge pending in the United States District Court captioned Hill v. Snyder , Case No. 10-cv-14568. This Court denied defendants' motions to dismiss in separate orders.⁴

At oral argument, counsel for defendants agreed with the position stated in plaintiff's briefs-that the proper parties were not before the Court, that the matter was not ripe, and that the sentencing judge had no authority to compute good-time or disciplinary credits or to order the Parole Board or the MDOC to do so.⁵

III. SUBJECT-MATTER JURISDICTION

Because Rucker raises an arguably preserved Alleyne challenge, and because these appeals were consolidated by order of this Court,⁶ I conclude that this Court has subject-matter jurisdiction over these appeals generally. I therefore disagree with plaintiff's initial characterization that this Court lacks subject-matter jurisdiction. However, for the reasons that follow, I also conclude-as plaintiff initially asserted and as defendants now assert-that these appeals of defendants' sentences are not the proper vehicle by which to decide the constitutional challenge asserted. Rather, because the constitutional issues are not properly before us, I conclude that we should address only Rucker's Alleyne challenge.

IV. RIPENESS: AGGRIEVED PARTY

Irrespective of whether, as plaintiff now argues, the ex post facto issue presents questions of state law, such that a state court should weigh in on those questions apart from the federal court's April 9, 2018 decision in Hill ,⁷ the question remains whether this Court, in these cases, is the proper forum in which to decide the issue. I conclude that it is not.

In appealing their sentences, defendants did not challenge the sentences themselves, but essentially sought from this Court a declaration that MCL 769.25a(6) is unconstitutional and that it must not be applied so as to affect their future parole eligibility.⁸ Plaintiff argued that the request was improper in this context. Now, in an unusual swapping of legal positions, defendants essentially concede that their request was improper, and plaintiff now advocates that we issue the diametrically opposed declaration.

I conclude that the claims presented (if indeed they can be described as claims in this criminal-sentencing context) are not ripe, that defendants are not aggrieved by any decision of the trial court (and therefore are not "aggrieved parties"), and that the constitutional issues presented are otherwise not appropriately decided by this Court in this context, for several reasons.

First, it bears repeating that defendants did not seek, by their constitutional challenges, any relief from their convictions or from their sentences as imposed by the trial court. Yet the rules of this Court limit its jurisdiction over appeals by right to those filed by an "aggrieved party" from an order of the trial court. See MCR 7.203(A). To be aggrieved, a party "must have suffered a concrete and particularized injury." Federated Ins. Co. v. Oakland Co. Rd. Comm. , 475 Mich. 286, 291, 715 N.W.2d 846 (2006). Further, "a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case ." Id . at 292, 715 N.W.2d 846 (emphasis added). None of the parties has identified any injury arising from any action of the trial court. I therefore conclude that, apart from Rucker's Alleyne challenge, defendants are not "aggrieved parties" for the purpose of challenging MCL 769.25a(6) in this context.

Moreover, and regardless of whether defendants presented their constitutional challenges in the trial court, it is far from clear to me that the trial court would have possessed the authority, in the context of the criminal proceedings then before it, to essentially enter a declaratory judgment that would have bound the Parole Board or the MDOC; our Supreme Court has stated that, depending on the type of underlying claim, a complaint for declaratory relief against a state agency must be filed in either the Court of Claims or the circuit court. See Parkwood Ltd. Dividend Housing Ass'n v. State Housing Dev. Auth. , 468 Mich. 763, 773-774, 664 N.W.2d 185 (2003). These cases are criminal prosecutions, however, not actions for declaratory relief. No such complaint was filed, nor could one realistically have been filed, in the course of these criminal proceedings. Yet defendants essentially sought (and plaintiff now seeks) to transform these appeals into declaratory judgment proceedings originating in this Court. We lack original jurisdiction over such actions. Id . Further, we are an error-correcting court. See W A Foote Mem. Hosp. v. Mich. Assigned Claims Plan , 321 Mich. App. 159, 181, 909 N.W.2d 38 (2017). But the parties have not identified any errors by the trial court that they seek to have us correct, and the declaratory relief that defendants essentially sought (and that plaintiff now seeks) was never even considered by a court with original jurisdiction over such matters.

In any event, even if we possessed the ability to order declaratory relief in this context, our ripeness doctrine precludes "the adjudication of hypothetical or contingent claims before an actual injury has been sustained. A claim is not ripe if it rests upon ' "contingent future events that may not occur as anticipated, or indeed may not occur at all." ' See Mich. Chiropractic Council v. Comm'r of OFIS , 475 Mich. 363, 371 n. 14, 716 N.W.2d 561 (2006), overruled on other grounds by Lansing Sch. Ed.Ass'n v. Lansing Bd. of Ed. , 487 Mich. 349, 792 N.W.2d 686 (2010), quoting Thomas v. Union Carbide Agricultural Prod. Co. , 473 U.S. 568, 580-581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (citation omitted); see also Van Buren Charter Twp. v. Visteon Corp. , 319 Mich. App. 538, 554, 904 N.W.2d 192 (2017). In this case, even assuming that defendants accrued disciplinary credits during their terms of imprisonment before resentencing, MCL 800.33(3) provides that such credits "shall be deducted from a prisoner's minimum and maximum sentence in order to determine his or her parole eligibility date and discharge date." See also MCL 800.33(5). MCL 800.33 also empowers the warden of a prison, as well as the Parole Board in the case of parole violations, to both reduce and restore such credits on the basis of prisoner conduct.⁹ See MCL 800.33(8), (10) and (13). In other words, the language of MCL 800.33 pointedly does not indicate that a trial court, when resentencing a defendant, may consider the disciplinary credits then earned by the defendant because the amount of credits earned is not then known or even a sum certain-a defendant may gain and lose credits on the basis of his or her conduct in prison. Rather, these credits are to be considered by the Parole Board or the MDOC to determine parole eligibility at the appropriate future time.

Although defendants appeal from their resentencings, they had suffered no injury to their parole eligibility at the time of the resentencings. Rather, their claims appear to rest on a contingent future event, i.e., a denial of disciplinary credits, assuming they were earned and have not been forfeited by misconduct, at the time that their parole eligibility is determined (again, assuming that MCL 769.25a(6) exists in its current form at that time). Such a claim is not ripe. See Mich. Chiropractic , 475 Mich. at 371 n. 14, 716 N.W.2d 561 ; see also In re Parole of Johnson , 235 Mich. App. 21, 25, 596 N.W.2d 202 (1999) ("[A] prisoner is not truly 'eligible' for parole until each and every one of the statutory 'conditions' [for granting parole] has been met[.]").

My conclusion is strengthened by the fact that a prisoner may not take an appeal, either by claim of right or by leave granted, from the denial of his or her parole. See MCL 791.234(11) ; Morales v. Parole Bd. , 260 Mich.App. 29, 42, 676 N.W.2d 221 (2003). A prisoner has no constitutional right to parole. Morales , 260 Mich.App. at 39, 676 N.W.2d 221. A prisoner may, however, use the "legal tools of habeas corpus and mandamus" actions in order to "have the judiciary review the legality of an inmate's imprisonment[.]" Id . at 42, 676 N.W.2d 221. I see no reason why this same standard should not apply to a prisoner aggrieved by a potential future denial of parole, should he or she overcome the ripeness problem. I note that cases relied on by the federal court in Hill v. Snyder , 308 F.Supp.3d at 908-909, for the proposition that "good time credit is earned even by individuals serving life sentences," arose in such contexts. See Moore v. Parole Bd. , 379 Mich. 624, 154 N.W.2d 437 (1967) (mandamus); Meyers v. Jackson , 245 Mich. 692, 224 N.W. 356 (1929) (habeas corpus); In re Cammarata , 341 Mich 528, 67 N.W.2d 677 (1954) (habeas corpus).¹⁰

The Attorney General, as amicus curiae, nonetheless contended at oral argument in this case that we should decide the ex post facto issue in the context of these criminal sentencing appeals because this Court and our Supreme Court have previously considered issues involving good-time credits or disciplinary credits on direct review. The majority agrees. But I find these cases distinguishable. For example, in People v. Tyrpin , 268 Mich. App. 368, 710 N.W.2d 260 (2005), the defendant had originally been sentenced to a jail term and was later resentenced, after the prosecution appealed, to a prison term. Id . at 370, 710 N.W.2d 260. The defendant argued that the jail good-time credit that he had earned under MCL 51.282 should have been applied on resentencing by increasing the number of days for which he would have received credit for time served. Id . at 371, 710 N.W.2d 260. The defendant made no argument concerning parole eligibility, but was aggrieved by what he believed to be the trial court's failure to add 61 days to his sentencing credit as reflected in the judgment of sentence. Id . The injury alleged by the defendant (although his claim was ultimately unsuccessful) was neither contingent nor hypothetical; the defendant alleged that the trial court had erred by calculating his credit for time served. Id . Our analysis of good-time and disciplinary-time statutes was conducted in that context. By contrast, there are no alleged errors by the trial court in the instant appeals.

In People v. Cannon , 206 Mich. App. 653, 522 N.W.2d 716 (1994), the defendant argued that the imposition of a fixed jail sentence with a specified release date violated his right to receive good-time jail credits under MCL 51.282. Id . at 654, 522 N.W.2d 716. Again, the defendant was aggrieved by the trial court's sentencing order, which had already injured him by fixing his release date to a specific date regardless of sentencing credits. Id . at 656-657, 522 N.W.2d 716 (holding that "a court may not deprive a prisoner of good-time credit to which the prisoner may be entitled under statute before that prisoner has even begun serving the term of imprisonment.")

And in People v. Johnson , 421 Mich. 494, 364 N.W.2d 654 (1984), our Supreme Court considered the effects of Proposal B on life sentences. Id . at 497-498, 364 N.W.2d 654. Although the Court did declare Proposal B to be binding on the Parole Board with regard to indeterminate sentences, the context of the defendant's appeal was that the trial court had not correctly informed him of the consequences of his guilty plea. Id . at 496, 364 N.W.2d 654. Once again, the defendant was aggrieved by an action of the trial court.¹¹

V. CONCLUSION

For all of these reasons, I would not reach the constitutional issues presented.¹² They are not properly raised in the context of these appeals, inasmuch as they do not present any claim of error by the trial court in its resentencing decisions. Plaintiff is already litigating the ex post facto issue with a class of plaintiffs (which includes Wiley and Rucker) in federal court, and plaintiff or defendants remain free to additionally raise the issue in a proper state court proceeding in which the proper parties are present. By contrast, Wiley and Rucker are the only persons who will be directly affected by this Court's disposition of the issue in the context of these criminal sentencing appeals; in essence, we would be declaring the rights of two individuals with regard to this statute, while in the meantime a class action (of which Rucker and Wiley are also a part) is already proceeding and has already resulted in declaratory relief.

Because I would not reach the constitutional issues and because I agree with the majority's treatment of the Alleyne issue, I would affirm, but, unlike the majority, I would not issue a declaration of unconstitutionality.

1 Both Wiley and Rucker were also convicted of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Their sentences for those convictions were not altered on resentencing, have been served, and are not relevant to the issues presented in these appeals.

2 See People v. Wiley , unpublished order of the Court of Appeals, entered January 17, 2018 (Docket Nos. 336898 and 338870).

3 Miller was decided on June 25, 2012.

4 Fieger v. Cox , 274 Mich. App. 449, 465, 734 N.W.2d 602 (2007).

5 MCL 14.28

6 See People v. Wiley , unpublished order of the Court of Appeals, entered November 1, 2017 (Docket No. 336898), and People v. Rucker , unpublished order of the Court of Appeals, entered November 1, 2017 (Docket No. 338870).

7 See People v. Wiley , unpublished order of the Court of Appeals, entered March 23, 2018 (Docket Nos. 336898 and 338870).

8 Judge Goldsmith's April 9, 2018 opinion, which will be discussed further, was the outcome of that remand.

9 People v. Wiley , unpublished order of the Court of Appeals, entered January 17, 2018 (Docket Nos. 336898 and 338870).

10 People v. Rucker , unpublished order of the Court of Appeals, entered February 16, 2018 (Docket No. 338870); People v. Wiley , unpublished order of the Court of Appeals, entered March 5, 2018 (Docket No. 336898).

11 Wiley's appellate counsel in this Court, who represented other parties in the class action, was appointed to serve as class counsel. Hill , 308 F.Supp.3d at 915.

12 Hill v. Snyder , unpublished order of the United States Court of Appeals for the Sixth Circuit, entered April 18, 2018 (Case No. 18-1418). The Sixth Circuit offered this sentiment when denying the state parties' recent motion for a 14-day stay so that they could appeal Judge Goldsmith's permanent injunction, which included enjoining the state parties from enforcing or applying MCL 769.25a(6) and ordering them to calculate the good-time credits and disciplinary credits for each member of the class who has been resentenced.

13 The party designations would be switched, however, because the plaintiffs in Hill are similarly situated to defendants in the instant case.

14 MCL 769.25a(6) only affects individuals who (1) were convicted of first-degree murder for offenses committed before December 15, 1998, when the individuals were under the age of 18, and (2) receive a post-Miller sentence and will be eligible for parole.

15 Although neither Wiley nor Rucker is entitled to good-time credits based on the dates they committed their offenses, the statutory language used in both the good-time and the disciplinary-credit statutes is relevant to the constitutional question before this Court.

16 See also MCL 800.33(3) ("[A]ll prisoners serving a sentence....").

17 The Michigan Attorney General cited Meyers and made the same argument in its amicus brief filed in the present case.

18 The Michigan Attorney General cited Tyrpin and made the same argument in the amicus brief he filed in the present case.

19 Some alterations in Hill .

* Reporter's Note: The Court of Appeals' decision in Hyatt was reversed in part on other grounds after the release of the opinion in this case. People v. Hyatt , 502 Mich. 89 (2018).

1 Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

2 The constitutional issues raised by Wiley on appeal include (1) whether MCL 769.25a(6) violates the Ex Post Facto Clause of United States and Michigan Constitutions, U.S. Const. art. I, § 10; Const. 1963, art. 1, § 10 ; (2) whether MCL 769.25a(6) improperly repeals an initiative adopted by voters as "Proposal B," in violation of Const. 1963, art. 2, § 9 ; and (3) whether MCL 769.25a(6) violates the Title-Object Clause of the Michigan Constitution, Const. 1963, art. 4, § 24. In light of its disposition of the first of these issues, the majority does not reach the remaining two issues. I would not reach any of them in the context of these appeals.

3 MCR 7.203(A)(1) provides for an appeal of right of a "final judgment or final order of the circuit court ... as defined in MCR 7.202(6)...." MCR 7.202(6)(b)(iii) defines a "final judgment or final order" in a criminal case to include "a sentence imposed following the granting of a motion for resentencing."

4 See People v. Rucker , unpublished order of the Michigan Court of Appeals, entered February 16, 2018 (Docket No. 338870); People v. Wiley , unpublished order of the Michigan Court of Appeals, entered March 5, 2018 (Docket No. 336898).

5 As noted, the parties' positions in this case have morphed and shifted with the developments in Hill . For example, plaintiff's briefs on appeal (in part challenging this Court's subject matter jurisdiction) were filed before the December 20, 2017 decision of the United States Court of Appeals for the Sixth Circuit, see Hill v. Snyder , 878 F.3d 193 (C.A. 6, 2017), that reversed the district court's earlier dismissal of the ex post facto challenge in that case, see Hill v. Snyder , unpublished opinion of the United States District Court for the Eastern District of Michigan, issued February 7, 2017 (Case No. 10-14568). And defendants filed their motions to dismiss their appeals-and plaintiff opposed those motions-after the December 2017 decision of the Sixth Circuit.

6 See People v. Wiley , People v. Rucker , unpublished order of the Michigan Court of Appeals, issued January 17, 2018 (Docket Nos. 336898/338870).

7 Hill v. Snyder , 308 F.Supp.3d 893 (E.D. Mich., 2018).

8 It is unknown whether Wiley or Rucker will ever become eligible for parole, when either of them might become eligible, or whether MCL 769.25a(6) will continue to exist in its current form at any such time.

9 A circuit court may order the reduction or forfeiture of credits only in limited circumstances related to a prisoner's malicious or vexatious court filings. See MCL 800.33(15) and MCL 600.5513.

10 Hill itself arose in the context of a claim under 42 U.S.C. 1983.

11 I note also that our Supreme Court is much freer than we, as an intermediate appellate court, to consider issues beyond the claimed errors of the lower courts and to opine on broader issues of Michigan law. See People v. Woolfolk , 304 Mich.App. 450, 475-476, 848 N.W.2d 169 (2014).

12 Although I do not express any opinion on the constitutional issues, I note that the parties have not briefed (nor does it appear to me that either the federal court in Hill or the majority in the instant appeals has addressed) whether a finding of unconstitutionality would relate solely to MCL 769.25a(6), or whether, alternatively, and given that the Legislature's enactment of that statutory provision was made in the context of the sentencing scheme set forth in MCL 769.25a(4), the entire sentencing scheme would be rendered unconstitutional. This gives me additional pause about deciding the constitutional issues in the current context.