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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED August 16, 2018

v No. 338986 Wayne Circuit Court MICHAEL EDWARD JARRETT, LC No. 93

- 008770

- 01

- FC

Defendant

- Appellant.

Before: S WARTZLE , P .J., and C AVANAGH and M. J. K ELLY , JJ

.

P ER C URIAM

. Defendant appeals as of right the trial court’s order denying his motion to apply earned disciplinary credits to his new term

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- years sentence imposed on resentencing pursuant to Miller v Alabama , 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and MCL 769.25a

. Defendant contends that MCL 769.25a(6) unconstitutionally deprives him of the application of earned d isciplinary credits to his term

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- years sentence. In accordance with this Court’s recent decision in People v Wiley , ___ Mich App ___ , ___ ; ___ NW2d ___ (2018) (Docket No. 336898), w e affirm defendant ’ s term

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- years sentence, but hold that MCL 769.25a(6 ) is unconstitutional

. In 1993, a jury convicted defendant, then a juvenile, of first

- degree premeditated murder, MCL 750.316(1)(a) , and possession of a firearm during the commission of a felony, MCL 750.227b. In 1994, the trial court sentenced d efendant to life imprisonment without the possibility of parole for the murder conviction, and a consecutive two

- year term of imprisonment for the felony

- firearm conviction. Defendant later obtained resentencing pursuant to the United States Supreme Court’s deci sion in Miller , 567 US 460 , and the Michigan Legislature’s enactment of MCL 769.25a, which provides sentencing pro cedures for juvenile offenders who had been sentenced to life imprisonment without parole and had exhausted their appeals. On appeal, defenda nt challenges the constitutionality of MCL 769.25a(6), which proscribes the deduction of accumulated good time and disciplin ary credits upon resentencing of a juvenile offender , stating: 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.- 2

- I. EX POST FACTO CL AUSE

De fendant argues that MCL 769.25a(6) deprives him of disciplinary credits in violation of the Ex Post Facto Clause s of the United States and Michigan Constitutions, US Const, art 1, § 10; Const 1963, art 1, § 10 , because it is a retroactive statute that increases hi s punishment . We agree.

As this Court noted in People v Callon , 256 Mich App 312, 317

- 318; 662 NW2d 501 (2003), laws that violate ex post facto protections change the legal consequences of acts completed or crimes committed before the effective date of t he law to the disadvantage of the defendant. So, for example, a statute enacted after a criminal act was committed which increases the punishment for that crime violates the Ex Post Facto Clauses. Riley v Parole Bd , 216 Mich App 242, 244; 548 NW2d 686 (1 996). Defendant argues that MCL 769.25a(6) , which was enacted after he committed his crimes, increases his punishment.

After defendant filed his claim of appeal, the United States District Court for the Eastern District of Michigan issued an opinion in H ill v Snyder , ___ F Supp 3d ___ (ED Mich, 2018) ( Case No. 10

- cv

- 14568)
, concluding that MCL 769.25a(6) violates the Ex Post Facto Clause of the United States Constitution because it retroactively removed the plaintiffs’ ( the juvenile offenders ’ ) previously earned credits, thereby increasing their punishments.

Soon thereafter, in Wiley , this Court adopt ed the district court’s reasoning in Hill and held that MCL 769.25a(6) unconstitutionally deprives juvenile offenders of the application of earned disciplina ry credits to their term

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- years sentences in violation of the Ex Post Facto Clause s of both the United St ates and Michigan Constitutions

. Wiley , ___ Mich App at ___; slip op at 23. In Wiley , the defendants , who are similarly situated to defendant in th is case, were convicted of first

- degree murder as juveniles and originally sentenced to life imprisonment without parole. Id . at 5, 7. Pursuant to MCL 769.25a, each defendant was resentenced to a term

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- years sentence. The defendants appealed, arguing that MCL 769.25a(6) violates the Ex Post Facto Clause s of the United States and Michigan Constitutions, because it preclude d them from receiving disciplinary credits on their term

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- years sentences, and thus is a statute that retroactively increase d their punishments. Id . at 6

- 8. The Wiley Court agreed with the reasoning in Hill , which noted: 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. 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. [ Wiley , _ _ Mich App at ___; slip op at 1 4
, quoting Hill , ___ F Supp 3d ___; slip op a t 1 6 (footnote omitted) .]

The Wiley Court ultimately concluded, consistent with the Hill decision, that the elimination of good time and disciplinary credits by MCL 769.25a( 6) violated the Ex Post Facto Clauses and that the credits must be applied in calculating parole eligibility dates for prisoners resentenced- 3

- under MCL 769.25a. Wiley , ___ Mich App at

_ __; slip op at 1 9

- 20, quoting Hill , ___ F Supp 3d
at ___; slip op at 24

. In light of this Court’s decision in Wiley , we hold that MCL 769.25a(6) unconstitutionally deprives defendant of the application of earned disciplinary credits to his
term

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- years sentence in violation of Ex Post Facto Clause s of the United States and Michigan Constitutions. Not only do we agree with the analysis in Wiley , but the decision is binding under MCR 7.215(J)(1). Accordingly, MCL 769.25a(6) may not be used to prevent defendant from having his accumulated disciplinary credits deducted from hi s minimum and maximum sentences in order to determin e his parole eligibility.

II . DEFENDANT’S ADDIT IONAL CONSTITUTIONAL CHALL ENGES
Because MCL 769.25a(6) is unconstitutional as a violation of the Ex Post Facto Clause s of the United States and Michigan Constitutions, we need not address defendant’s additional arguments that MCL 769.25a(6) violates the Title

- Object Clause of the Michigan Constitution and the Equal Protection Clause of the United States and Michigan Consti tutions, a s well as deprives him of due process. Defendant has receive d the relief he requests

— a declaration that MCL 769.25a(6) cannot be used to prevent the application of earned disciplinary credits in calculating his parole eligibility.

We affirm defendant ’ s term

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- years sentence, but hold that MCL 769.25a(6) is unconstitutional.

/s/ Mark J. Cavanagh /s/ Michael J. Kelly