Opinion

People of Michigan v. William Lawrence Rucker

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

Court: Michigan Court of Appeals
Filed: May 4, 2018
Status: Published
Author: Beckering
On the bench: Boonstra, Beckering, Krause
Cited by: 83 cases
Authority: More cited than 88.0%

BOONSTRA , J., concurring in part and dissenting in part

How later courts described this case

BOONSTRA , J., concurring in part and dissenting in part
“To be preserved for appellate review, an issue must be raised before and addressed by the trial court.”
“Any questions of law are to be reviewed de novo . . . .”

Written by the judges who cited it.

The opinion

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

May 4, 2018

Plaintiff-Appellee, 9:00 a.m.

v No. 336898

Wayne Circuit Court

CHRISTOPHER WILEY, LC No. 95-002388-01-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 338870

Wayne Circuit Court

WILLIAM LAWRENCE RUCKER, LC No. 92-014245-01-FC

Defendant-Appellant.

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’s 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 to 25 to 60 years’ imprisonment for his 1995

conviction of first-degree murder, MCL 750.316, under MCL 769.25a. In Docket No. 338870,

defendant William Lawrence Rucker 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,

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under MCL 769.25a.1 Both defendants allege on appeal that MCL 769.25a(6) unconstitutionally

deprives them of the application of earned disciplinary credits 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 resentencing, but we

agree with their contention that MCL 769.25a(6) is unconstitutional. Put simply, we agree with

our federal colleague Judge Mark A. Goldsmith’s analysis in Hill v Snyder, opinion and order of

the United States District Court for the Eastern District of Michigan, issued April 9, 2018 (Case

No. 10-cv-14568), wherein he concluded that MCL 769.25a(6) runs afoul of ex post facto laws.

I. RELEVANT LEGAL HISTORY

As alluded to above, these appeals arise following the United States Supreme Court’s

decisions in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012) and

Montgomery v Louisiana, ___ US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016), and our

Legislature’s concomitant enactment of MCL 769.25a.

The Miller Court found, 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 US at 489.]

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, 136 S Ct at 725. In determining that Miller was to be afforded

retroactive application, the Court 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

Both Wiley and Rucker were also convicted of possession of a firearm in 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.

See People v Wiley, People v Rucker, unpublished order of the Michigan Court of Appeals,

issued January 17, 2018 (Docket Nos. 336898, 338870).

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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. [Montgomery, 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, and 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, in that event, for the resentencing of 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 both to cases that

were final and to those that were not 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.

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] US

Miller was decided on June 25, 2012.

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___; 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] US

___; 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] US ___; 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.

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,

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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.

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 MCL 769.25a(6)’s proscription against the inclusion of

good time and disciplinary credits when resentencing juvenile offenders to sentences in which

they are 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).]

At the time of the commission of this crime, Wiley was 16 years and 9 months old. Wiley was

convicted by a jury on August 30, 1995, of first-degree murder, MCL 750.316, and felony-

firearm, MCL 750.227b, and was originally sentenced on December 19, 1995 to life in prison

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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 not be less than 25 years or

more than 40 years,” in accordance with MCL 769.25a(4)(c). While numerous prison

misconducts were documented for Wiley following his incarceration in 1996 and until 2008, the

prosecutor’s office noted that, while in prison, Wiley completed his general equivalency diploma

(GED), enrolled in several community college courses, and had maintained employment in the

prison in various capacities since 1999. The prosecution 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

sentenced Wiley 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, US

Const art I, § 10, Const 1963, art 1, § 10. He also contends that the statute violates Const 1963,

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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 of the commission of this crime, Rucker was 17 years and 3 months old. Rucker was

convicted by a jury on May 20, 1993, of first-degree murder, MCL 750.316, and felony-firearm,

MCL 750.227b, and was originally sentenced on June 8, 1993, 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 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 not be less than 25 years or

more than 40 years,” in accordance with MCL 769.25a(4)(c). The prosecution detailed Rucker’s

juvenile record. While numerous misconducts were documented for Rucker after his

incarceration in 1993 and 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 “thirty to sixty

years” in prison for the first-degree murder conviction, with credit of 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:

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Any challenges to mandatory sentencing range of twenty-five to forty on the

minimum, and sixty on the maximum per [Alleyne4]. 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). [Footnote added.]

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, US Cons 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 769.234(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 Mich Parole Bd, 237 Mich App 629, 637; 604 NW2d 686

(1999), quoting 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

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

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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. 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 is defined as

encompassing “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 initial desire to prohibit this Court from weighing in on a

constitutional question of law that directly impacts defendants’ sentences of incarceration and

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

NW2d 260 (2005) (interpreting whether a defendant was entitled to good time credits), and

People v Cannon, 206 Mich App 653; 522 NW2d 716 (1994) (interpreting MCL 51.282,

regarding good time credits for county prisoners). 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 State5 and

has the authority to intervene in any matter in which, “in his own judgment the interests of the

state require it[,]”6 filed amicus briefs in both appeals7 and his Deputy Solicitor General actively

participated in oral argument.8 He also took over the 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, our Legislature, and our decision will directly impact Wiley

and Rucker, as 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

Fieger v Cox, 274 Mich App 449, 465; 734 NW2d 602 (2007).

MCL 14.28

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).

See People v Wiley; People v Rucker, unpublished order of the Court of Appeals, entered

March 23, 2018 (Docket Nos. 336898 and 338870).

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constitutional questions presented, it changed its stance when the Sixth Circuit issued an opinion

in Hill v Snyder, 878 F3d 193, 213 (6th Cir 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.9 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.10 And it was after the

Sixth Circuit tipped a hopeful hand to the defendants when remanding Hill that they each filed

motions seeking to voluntarily withdraw their appeals in this Court. The prosecution objected to

defendants’ motions, asking in their 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 the 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

motion to dismiss] is to deny the motion and leave [Wiley and Rucker] to [their]

arguments on appeal.”

In his reply brief, Wiley accused the prosecution of forum shopping by objecting to his motion to

withdraw, but he also requested that if we deny his motion, we hold his appeal in abeyance

pending a decision in Hill. This panel denied defendants’ motions to withdraw, 11 and the matter

proceeded to oral arguments, where all interested parties had their say.

Judge Goldsmith’s April 9, 2018 opinion, which will be discussed further herein, was the

outcome of that remand.

People v Wiley, People v Rucker, unpublished order of the Court of Appeals, issued January

17, 2018 (Docket Nos. 336898, 338870).

People v Rucker, unpublished order of the Court of Appeals, issued February 16, 2018

(Docket No. 338870); People v Wiley, unpublished order of the Court of Appeals, issued March

5, 2018 (Docket No. 336898).

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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, US Const art I, § 10; Const 1963, art 1, § 10, because it

precludes them from receiving disciplinary credits on their term-of-years sentences, and thus, it

is a retroactive statute 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 NW2d 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 NW2d 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 NW2d 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 his ex post facto challenge or his challenge, under Alleyne v

United States, 570 US 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 NW2d 832 (2016). However, we review unpreserved

constitutional issues for “plain error affecting defendant’s substantial rights.” People v Bowling,

299 Mich App 552, 557; 830 NW2d 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

NW2d 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. “[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 NW2d 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 NW2d 844 (2002).]

The particular statutory provision being challenged as unconstitutional and violative of the Ex

Post Fact Clause is MCL 769.25a(6), which states as follows:

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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 is seeking a continuation of a life in prison without

parole sentence (regardless of the sentence ultimately imposed), MCL 769.25a(4)(b), and when

the prosecution is not seeking a continuation of a life in prison without parole sentence, MCL

769.25a(4)(c). The latter subsection, 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 NW2d 906

(2015):

The United States and Michigan Constitutions prohibit ex post facto laws. People

v Callon, 256 Mich App 312, 316-317; 662 NW2d 501 (2003), citing US 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. 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. “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 NW2d 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 US 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 US

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:

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[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. [Id. at 29-31

(citations omitted).]

Therefore, “[t]he critical question is whether the law changes the legal consequences of acts

completed before its effective date.” Weaver, 450 US at 31 (The Supreme Court held 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 F3d 1073, 1077 (CA

5, 1997), citing Weaver, 450 US at 30.

It is undisputed that MCL 769.25a alters the punishment for both convicted and future

juvenile offenders committing 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 US at 33. 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. 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. Hill v Snyder, opinion and order of the United States District Court for

the Eastern District of Michigan, issued April 9, 2018 (Case No. 10-cv-14568). In a 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.12 Hill, pp 26, 32. Although this

Court is not bound by the decisions of lower federal courts, we may find their “analyses and

Wiley’s appellate counsel, who represents other parties in that action, was appointed to serve

as class counsel. Id, p 32.

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conclusions persuasive.” Abela v General Motors Corp, 469 Mich 603, 606-607; 677 NW2d

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.”13

The salient portion of Judge Goldsmith’s analysis, which we find persuasive and

respectfully adopt as our own14, 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. [Hill, p 6.]

* * *

[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 [Id.at 7-8]

* * *

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. [Id. at 16.]

* * *

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

The Sixth Circuit offered this sentiment when denying the state parties’ recent motion for a 14-

day stay so 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.

The party designations would be switched, however, as the plaintiffs in Hill are similarly

situated to defendants in the instant case.

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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 (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) . . . .[15]

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. [16] 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.

[ . . .]

MCL 769.25a(6) only affects individuals who were convicted of first-degree murder for

offenses committed prior to December 15, 1998 when they were under the age of 18, and who

receive a post-Miller sentence in which they are eligible for parole.

Although neither Wiley nor Rucker are 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.

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(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 ...”).[17] 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