If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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

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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED February 2 1 , 2023

V No. 356217 Calhoun Circuit Court JAMES EDWARD LOCKMILLER, LC No. 2017

- 003699

- FH

Defendant

- Appellant.

ON REMAND

Before: M URRAY , P .J., and S ERVITTO and O’B RIEN , JJ.

P ER C URIAM

. This case returns to this Court after remand from our Supreme Court. Following a jury trial, defendant was convicted of second

- degree criminal sexual conduct (CSC

- II), MCL 750.520c(1)(a) (victim under 13)

. The trial court originally sentenced defendant t o 38 months to 15 years’ imprisonment, and ordered lifetime electronic monitoring (LEM) as required by MCL 750.520c(2)(b) and MCL 750.520n (1). In his first appeal, a panel of this Court concluded that the trial court had erred in its assessment of offense variable 7, and remanded “for resentencing under the appropriate minimum sentencing guidelines range.” People v Lockmiller , unpublished per curiam opinion of the Court of Appeals, issued November 19, 2020 (Docket No. 348184), p 9. On remand, t he trial c ourt re sentenced defendant to 17 to 180 months’ imprisonment, and again ordered LEM as required by MCL 750.520c(2)(b) and MCL 750.520n (1)

. In his second appeal to this Court, defendant challenge d the trial court’s imposition of LEM as an unreasonable search and a cruel or unusual punishment , but a panel of this Court declined to address defendant’s arguments, reasoning that they were outside the scope of the remand

. People v Lockmiller

, unpublished per curiam opinion of the Court of Appeals, issued April 14, 2022 (Docket No. 356217), p 2. Our Supreme Court reversed that decision and remanded “to the Court of Appeals to consider those issues the defendant raised in that court challenging the imposition of LEM. ” People v Lockmiller

, ___ Mich ___, ___ (2022) (Docket No. 164505)

. Doing so, we affirm defendant’s sentence

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In the trial court, defendant never contested the imposition of LEM as being an unconstitutional. Accordingly, as defendant concedes, his arguments on appeal that th e imposition of LEM violated his constitutional rights against (1) unreasonable search and seizure and (2) cruel or unusual punishment are unpreserved. See People v Pipes , 475 Mich 267, 277; 715 NW2d 290 (2006). An unpreserved , nonstructural constitution al error is reviewed for plain error affecting substantial rights. Id . at 278. 1 “ Plain error exists when 1) an error occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v Beck , ___ Mich

___, ___; ___ NW2d ___ (2022) (Docket Nos. 160668, 160669); slip op at 30 (quotation marks, citation, and alterations omitted). 2

This Court has previously addressed the two arguments raised by defendant in People v Hallak , 310 Mich App 555, 566

- 581; 873 NW2d 811 (2015), rev’d in part on other grounds, People v Hallak , 499 Mich 879 (2016). That opinion was reversed in part on other grounds in Hallak

, 499 Mich at 879

- 880, but the issue leading to reversal nevertheless concerned the defendant’s sentence. A s the portion of Hallak relevant to defendant’s arguments in this appeal also concerned the Hallak defendant’s sentence, our Supreme Court’s reversal of Hallak , even on other grounds, rendered the relevant portion of Hallak “to be without precedential valu e.” Dunn v Detroit Auto Inter

- Ins Exch , 254 Mich App 256, 266; 657 NW2d 153 (2002).

1 Defendant argues on appeal that, despite failing to preserve this issue, this Court ’ s review should be de novo because the facts are “ essentially uncontested. ” He cites People v Oliver , 464 Mich 184, 191

- 192; 627 NW2d 297 (2001), in support of this assertion. In Oliver , the defendants had preserved their constitutional challenges by contesting allegedly illegal searches in motions to
suppress. Id . at 190. In explaining the standard of review, our Supreme Court first recognized that a trial court ’ s factual findings at a suppression hearing are generally reviewed for clear error, but explained that “ this level of deference ” was not warranted when the facts were “ essentially uncontested. ” Id . at 191

- 192. Thus, the portion of Oliver on which defendant relies had nothing to do with preservation requirements, and it remains true that unpreserved , nonstructural constitutional errors are reviewed for plain error aff ecting substantial rights.

2 Defendant does not argue that his trial counsel rendered ineffective assistance by not raising his appellate argument s before the trial court. As our Supreme Court has explained, the focus of a court’s review under the plain

- e rror standard differs from the review of a claim for ineffective assistance: [T]he specific error that is the focus of each standard is different. It is the trial court’s unobjected

- to error that is the subject of plain

- error review. By contrast, the ult imate determination of an ineffective

- assistance claim is not the propriety of the trial court’s actions with regard to an alleged error, but whether defendant has suffered a genuine deprivation of his right to effective assistance of counsel. [ People v R andolph , 502 Mich 1, 10

- 11; 917 NW2d 249 (2018) (quotation marks, citations, and alterations omitted).] Here, we are reviewing only “the trial court’s unobjected

- to error”

— whether that error was plain and affected defendant’s substantial rights. Id . at 10.- 3

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Since Hallak , however, no court has addressed the constitutionality of Michigan’s LEM
statute. “A clear or obvious error under the second prong [of the plain

- error stand ard] is one that is not subject to reasonable dispute.” People v Allen , 507 Mich 597, 614; 968 NW2d 532 (2021) (quotation marks and citation omitted). Here, no court has ever held that Michigan’s LEM statute is unconstitutional, and the only time an appe llate court has addressed the issue, it held that the statute passed constitutional muster. While that decision may no longer have precedential value for the reasons explained, the relevant portion of the decision was never reversed or vacated. In light of this, we are compelled to conclude that defendant’s claims of error are subject to at least reasonable dispute. As such, even if we were to revisit Hallak and rebalance the considerations of defendant’s constitutional claims to favor defendant like he urges , we w ould still conclude that the trial court’s imposition of LEM was not an obvious error warranting relief under plain

- error review. See People v Swenor , 336 Mich App 550, 569; 971 NW2d 33 (2021) (holding that a trial court’s alleged error on an u npreserved , nonstructural constitutional issue was “not plainly or obviously wrong” because there was “no binding caselaw” directly addressing the issue ); United States v Finnesy , 953 F3d 675, 696

- 697 (CA 10, 2020) (same); United States v Olano , 507 US 725, 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993) (“At a minimum, court of appeals cannot correct an error [under plain

- error review] unless the error is clear under current law.”); Henderson v United States , 568 US 266, 278; 133 S Ct 1121; 185 L Ed 2d 85 (2013) (explaining that the “requirement that an error be ‘plain’ means that lower court decisions that are questionable but not plainly wrong (at time of trial or at time of appeal) fall outside the

. . . scope” of plain

- error review); United State s v Ellis , 564 F3d 370, 378 (CA 5, 2009) (rejecting a defendant’s challenge to his sentence because the alleged error was not obvious, noting that “ all defendants ’ appeals challenging a sentence rest on the practical premise that the sentence should be les s ,” but “[n] ot every error that increases a sentence need be corrected by a call upon plain error doctrine ”). 3

Affirmed.

/s/ Deborah A. Servitto /s/ Colleen A. O’Brien

3 This opinion neither affirms nor disavows Hallak . We conclude only that defendant cannot satisfy the second prong of plain

- error review, and thus his claims for unpreserved, nonstructural constitutional error do not warrant appellate relief.