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




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 18, 2019
               Plaintiff-Appellant/Cross-Appellee,

v                                                                   No. 344322
                                                                    Berrien Circuit Court
MICHAEL JEFFERY JOHNSON,                                            LC No. 1980-001229-FH

               Defendant-Appellee/Cross-
               Appellant.


Before: BECKERING, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

        The prosecution appeals by leave granted the trial court’s order granting defendant’s
MCR 6.500 motion for relief from judgment. Defendant cross-appeals the same order. In
August 1980, defendant pled guilty to second-degree murder, MCL 750.317, for a crime he
committed as a juvenile, and the sentencing court sentenced him to life with the possibility of
parole. As a result of defendant’s 2017 motion for relief from judgment, the trial court held that
this sentence was unconstitutional under Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L
Ed 2d 407 (2012), and it ordered that defendant be resentenced. For the reasons set forth below,
we reverse.

                   I. RELEVANT FACTS AND PROCEDURAL HISTORY

        This case involves a defendant who was sentenced as a juvenile to life with the
possibility of parole for murdering his classmate. Defendant was 17 years old at the time of the
offense. Defendant was attempting to sexually assault the victim when he panicked, tied her
hands behind her back, and pushed her into a steep irrigation ditch. Defendant knew that the
victim fell into the water head first, and he waited approximately five minutes, until he no longer
heard her splashing, before leaving. He admitted that he intended to kill the victim to keep her
from telling the authorities that he had tried to sexually assault her.




                                                -1-
        Defendant has now served nearly 40 years in prison.1 He has been eligible for seven
regularly scheduled parole board reviews during his time in prison. The Board personally
interviewed him the first four times, in 1986, 1991, 1996, and 2001. Each interview resulted in a
“no interest” decision with no reason provided. The 2001 letter also noted:

              The Parole Board acknowledges the many positive accomplishments you
       have made throughout your years of incarceration. At this time the parole board
       has voted not to advance your case to the public hearing stage of the lifer law
       process. Your next review/interview will be in five (5) years. The parole board
       urges your continued positive adjustment.


For the next three reviews, the parole board declined to interview defendant and instead chose to
do a “file review.” Those reviews resulted in a “no interest” decision in 2006, 2011, and 2016,
without providing a reason.

        In January 2017, defendant filed a motion for relief from judgment, MCR 6.502, arguing
that he is serving a de facto life sentence that offers him no “meaningful opportunity for release”
in violation of the Constitution, citing various relevant federal cases.2 He argued that recent
research involving the juvenile’s brain development qualified as newly discovered evidence
because none of that research was available when he was sentenced. Defendant also argued that
he was entitled to be resentenced because the purpose and effect of his sentence has not afforded
him a meaningful opportunity for release and that his sentence is actually longer than juveniles
convicted of first-degree murder and who have since received term of years sentences. See MCL
769.25(9). Defendant also contended that state statutes governing his sentence fail to protect his
constitutional liberty interest in violation of the due-process clause. Defendant supported his
motion with various letters in support of his release, including multiple letters from the victim’s
parents, a referral from the warden of the prison, and letters from multiple Michigan Department


1
  Defendant has mounted a number of challenges to his conviction and sentence. He challenged
the voluntariness of certain incriminating statements made to the police, the factual basis for his
guilty plea, and the trial court’s failure to advise him that second-degree murder was a “Proposal
B offense,” MCL 791.234(4), which could negatively affect his eligibility for parole. People v
Johnson, unpublished per curiam opinion of the Court of Appeals, issued October 8, 1982
(Docket No. 55053). In 2003, he moved for relief pursuant to MCR 6.500, but later withdrew his
motion. In 2009, he filed a motion pursuant to MCR 6.508(D)(iv), in which he argued that the
parole board practices were unconstitutional because they ex post facto altered the nature of
defendant’s sentence. The trial court denied the motion, and this Court and our Supreme Court
denied his applications for leave to appeal. People v Johnson, unpublished order of the Court of
Appeals, entered January 25, 2010 (Docket No. 295013); People v Johnson, 488 Mich 1038
(2011).
2
 Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 L Ed 2d 1 (2005); Graham v Florida, 560
US 48; 130 S Ct 2011; 176 L Ed 2d 825 (2010); Miller v Alabama, 567 US 460; 132 S Ct 2455;
183 L Ed 2d 407 (2012).


                                                -2-
of Corrections employees. Defendant included with his motion numerous awards and positive
reviews for his performance in prison.

       After a hearing on defendant’s motion, the trial court held that defendant’s due-process,
equal protection, and Eighth Amendment constitutional rights were violated by the lack of a
meaningful opportunity for release afforded to a juvenile under Michigan’s parole system. This
appeal followed.

                             II. MCR 6.500 MOTION FOR RELIEF

       The prosecution first argues that the trial court erred in applying the newly discovered
evidence exception to the prohibition on successive motions for relief from judgment.

        In a motion for relief pursuant to MCR 6.500 et seq., a defendant has the burden to
establish entitlement to relief. MCR 6.508(D). A defendant is generally only entitled to file one
motion for relief from judgment. MCR 6.502(G)(1). However, this rule is not absolute. MCR
6.502(G)(2) permits the filing of a successive motion under two circumstances:

               A defendant may file a second or subsequent motion based on a
       retroactive change in law that occurred after the first motion for relief from
       judgment or a claim of new evidence that was not discovered before the first such
       motion. The clerk shall refer a successive motion that asserts that one of these
       exceptions is applicable to the judge to whom the case is assigned for a
       determination whether the motion is within one of the exceptions. [Emphasis
       added.]


Any successive motion that does not assert one of these two exceptions is to be returned to the
defendant without filing by the court. MCR 6.502(G)(1). No appeal of the denial or rejection of
a successive motion is permitted. MCR 6.502(G)(1).

        Defendant had already filed a motion for relief from judgment in 2009 before filing the
motion involved in the instant appeal. In the case at bar, defendant invoked the new-evidence
exception, in support of which he identified as a series of scientific studies regarding the
development and maturation of the human brain. However, it is clear from defendant’s
argument, and the trial court’s ruling, that both defendant and the trial court relied less on newly
discovered evidence and more on “a retroactive change in the law that occurred after [his] first
motion for relief.” MCR 6.50(G)(2). Defendant’s successive motion was arguably reviewable
based on retroactive changes in the law; specifically with regard to how Miller and related cases
interpreting and extending its principles to juvenile offenders sentenced to de facto life sentences
affected defendant’s sentence. We conclude, therefore, the trial court did not err in granting
defendant’s successive motion for relief from judgment.

                           III. ENTITLEMENT TO RESENTENCING

        The prosecution next argues that the trial court erred as a matter of law in concluding that
Miller and related cases apply to defendant’s valid sentence. According to the prosecution, those
cases do not apply to defendant’s sentence of life with eligibility for parole after 10 years.
                                                -3-
Whether the Michigan parole system operates in a constitutional manner is a very different
question from whether defendant was sentenced in a constitutional manner, and requires a
different kind of legal procedure. We agree.

        In Miller, the Supreme Court of the United States held that “mandatory life without
parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on cruel and unusual punishments.” Miller, 567 US at 465. The Supreme Court
explained:

               Mandatory life without parole for a juvenile precludes consideration of his
       chronological age and its hallmark features—among them, immaturity,
       impetuosity, and failure to appreciate risks and consequences. It prevents taking
       into account the family and home environment that surrounds him—and from
       which he cannot usually extricate himself—no matter how brutal or
       dysfunctional. It neglects the circumstances of the homicide offense, including
       the extent of his participation in the conduct and the way familial and peer
       pressures may have affected him. Indeed, it ignores that he might have been
       charged and convicted of a lesser offense if not for incompetencies associated
       with youth—for example, his inability to deal with police officers or prosecutors
       (including on a plea agreement) or his incapacity to assist his own attorneys. And
       finally, this mandatory punishment disregards the possibility of rehabilitation
       even when the circumstances most suggest it. [Id. at 477-478 (quotation marks
       and citation omitted).]


        In 2016, the Supreme Court clarified that although “Miller’s holding had a procedural
component” because it “require[d] a sentencer to consider a juvenile offender’s youth and
attendant characteristics before determining that life without parole is a proportionate sentence,”
“Miller announced a substantive rule of constitutional law” that applied retroactively to juvenile
offenders. Montgomery v Louisiana, __ US __, __; 136 S Ct 718, 734; 193 L Ed 2d 599 (2016)
(quotation marks and citations omitted).

        Miller and Montgomery clearly apply to juveniles sentenced to life in prison without the
possibility of parole. One month after granting leave in the instant case, this Court addressed
whether Miller and Montgomery invalidated a sentence of life with the possibility of parole in
People v Williams, __ Mich App __; __ NW2d __ (2018) (Docket No. 339701).3 In Williams, a
jury convicted the defendant in 1987 of “first-degree murder, MCL 750.316, second-degree
murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-



3
  The Michigan Supreme Court is currently holding the defendant’s application for leave to
appeal in abeyance in Williams, pending the Court’s decision in People v Turner (Docket No.
158068), as that decision may resolve an issue raised in Williams. People v Williams, ___ Mich
___; ___ NW2d ___ (Issued April 5, 2019, Docket No. 158853). In the meantime, Williams
remains binding precedent.


                                                -4-
firearm), MCL 750.227b.” Williams, __ Mich App at __; slip op at 1. The trial court sentenced
the defendant to “mandatory life imprisonment without the possibility of parole for his first-
degree murder conviction, life with the possibility of parole for his second-degree murder
conviction, and a consecutive two years’ imprisonment for his felony-firearm conviction.” Id.
In response to Miller and Montgomery, “the prosecution filed a notice to seek a term-of-years
sentence for defendant’s first-degree murder conviction[,]” and the trial court eventually
resentenced him to “25 to 60 years’ imprisonment for the first-degree murder conviction, leaving
the other two sentences intact.” Id. at __; slip op 1-2. “Defendant later filed a motion for relief
from judgment, in which he argued that he was entitled to resentencing on his second-degree
murder conviction because his life with the possibility of parole sentence was also invalidated by
Miller and Montgomery.” Id. at __; slip op at 2. The trial court agreed, and the prosecutor
appealed. Id.

       On appeal, this Court discussed the backdrop provided by the United States Supreme
Court’s reasoning and holdings in Miller and Montgomery, and then ruled as follows:

               Against this backdrop, it is clear that, at maximum, Miller and
       Montgomery guarantee that defendants convicted as juveniles are afforded “
       ‘some meaningful opportunity to obtain release based on demonstrated maturity
       and rehabilitation.’ ” Miller, 567 US at 479, quoting Graham[v Florida], 560 US
       [48,] 75[; 130 S Ct 2011; 176 L Ed 2d 825 (2010)]. At minimum, these cases
       apply only to mandatory sentences of life with the possibility of parole. See, e.g.,
       People v Wines, __ Mich App __, __; NW2d __ (2018) (Docket No. 336550); slip
       op at 3; lv pending, (“[T]he constitutional holding in Miller applied only to life-
       without-parole decisions.”). Here, under either interpretation, defendant’s
       sentence of life with the possibility of parole satisfied Miller’s mandate.
       Defendant once served a sentence of life without the possibility of parole, but is
       now eligible for parole on each of his sentences. Stated differently, defendant has
       been granted a meaningful opportunity to obtain release, see Miller, 567 US at
       479, on his sentences for first- and second-degree murder. And because
       defendant has some meaningful opportunity to obtain release on his sentence of
       life with the possibility of parole, that sentence was not invalid under Miller.
       [Williams, __ Mich App at __; slip op at 4.]

        As a published opinion, Williams dictates the outcome of this issue. MCR 7.215(C)(2).
Thus, whether we view Miller and Montgomery as applicable only to juveniles sentenced to
mandatory life without the possibility of parole, or as guaranteeing juvenile offenders “some
meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,”
defendant’s sentence of life with the possibility of parole satisfies Miller’s mandate. Miller, 567
US at 479, quoting Graham, 560 US at 75. In other words, defendant’s sentence of life with the
possibility of parole is not invalid under Miller such that he is entitled to resentencing.

        Defendant seeks to distinguish his case from Williams by pointing out that, unlike the
Williams defendant, he has presented evidence showing that a parolable life sentence does not
actually afford juvenile offenders the same meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation that a term-of-life sentence imposed to comply with
Miller affords other juvenile offenders. The essence of defendant’s complaint seems to be that

                                                -5-
the review process for term-of-life juvenile offenders provides meaningful review and relevant
information and results in appealable decisions. By contrast, the process for parolable lifers is
similar to the review process for prisoners serving non-parolable life sentences who might be
seeking pardon or commutation, and leaves juvenile offenders in a state of prison purgatory, with
no information for improvement and no appealable decisions.

       We explained the parole process for a prisoner sentenced to a term of years in
considerable detail in In re Elias, 294 Mich App 507, 511-521; 811 NW2d 541 (2011).

       A prisoner sentenced to a term of years comes under the jurisdiction of the Board
       when he or she has served the minimum sentence, adjusted for any good time or
       disciplinary credits. MCL 791.233(1)(b) through (d); MCL 791.234(1) through
       (5). Several months before the prisoner’s earliest release date, a DOC staff
       member must conduct an in-depth evaluation of the prisoner in order to advise the
       Board. A prison staff member prepares for the Boards review a “Parole
       Eligibility Report” (PER) summarizing the “prisoner’s prior record, adjustment
       and other information[.]” DOC Policy Directive 06.05.103, p. 1; see also MCL
       791.235(7). In preparing a PER, the staff member interviews the prisoner and
       gathers vital documentation, such as the results of any mental-health examinations
       and evaluations from prison programs. DOC Policy Directive 06.05.103, ¶¶ I, M,
       p. 2. The PER “shall contain information as required by MCL 791.235” and any
       other information requested by the Board for its review. Id. at ¶ O, p. 2. Prison
       officials submit the PER to the Board’s “Case Preparation Unit,” along with the
       contents of the prisoner’s central file. The unit uses the PER and file documents to
       score the prisoner’s parole guidelines. DOC Policy Directive 06.05.100, ¶ D, p. 1.

               Statutorily mandated parole guidelines form the backbone of the parole-
       decision process. As described by this Court in In re Parole of Johnson, 219
       Mich App 595, 599, 556 NW2d 899 (1996), “[t]he parole guidelines are an
       attempt to quantify the applicable factors that should be considered in a parole
       decision” and are “intended to inject more objectivity and uniformity into the
       process in order to minimize recidivism and decisions based on improper
       considerations such as race.” [In re Elias, 294 Mich App at 511-12 (footnotes and
       internet citations to DOC documents omitted).]

                                             * * *

       “That score is then used to fix a probability of parole determination for each
       individual on the basis of a guidelines schedule.[4] Prisoners are categorized



4
  Although decisions by the parole review board are not grievable, prisoners may “challenge the
calculation of their parole guideline score, including the accuracy of the information used in
calculating the score, by filing a grievance pursuant to Policy Directive 03.02.130,
‘Prisoner/Parolee Grievances.’ ” Policy Directive 06.05.100, ¶ G.


                                               -6-
       under the guidelines as having a high, average, or low probability of parole.”
       Johnson, 219 Mich App at 599, 556 NW2d 899. A prisoner with a score of +3 or
       greater merits placement in the high-probability category, a score of -13 or less
       warrants assignment to the low-probability category, and a score between those
       figures falls within the average-probability category. DOC Policy Directive
       06.05.100, Attachment A, p. 10. [Id. at 518.]

              A prisoner being considered for parole may also undergo an interview
       conducted by one or more Board members assigned to the prisoner’s panel. If the
       prisoner’s guidelines score falls within either the high- or low-probability-of-
       parole categories and the Board intends to follow the guidelines recommendation
       to grant or deny parole respectively, the Board need not interview the
       prisoner. . . . Following the parole interview, a “Case Summary Report” is
       created for the Board’s review.” [Id.]

                In 2005, the DOC began implementing the Michigan Prisoner ReEntry
       Initiative (MPRI) in various stages. The MPRI is a multiagency, multicommunity
       project designed to promote public safety and reduce the likelihood of parolee
       recidivism. [Id. at 519.]

                                              * * *

              A staff member from the DOC must formulate a TAP5 with each prisoner,
       mostly to assess the prisoner’s reentry into society, but also to assist the Board in
       rendering its parole decision. [Id. at 519-520.]

       “Ultimately, ‘matters of parole lie solely within the broad discretion of the [Board] . . . .’
” Id. at 521, quoting Jones v Dep’t of Corrections, 468 Mich 646, 652; 664 NW2d 717 (2003).
“Notwithstanding, the Legislature has clearly imposed certain statutory restrictions on the
Board’s exercise of its discretion.” In re Elias, 294 Mich App at 521-522. For example:

       The parole board may depart from the parole guidelines by denying parole to a
       prisoner who has a high probability of parole as determined by the guidelines or
       by granting parole to a prisoner who has a low probability of parole as determined
       under the parole guidelines. A departure under this subsection shall be for
       substantial and compelling reasons stated in writing. [MCL 791.233e(6).]

       Once the Board has rendered its decision, it must issue in writing “a sufficient
       explanation for its decision” to allow “meaningful appellate review,” Glover v


5
  TAP is an acronym for Transition Accountability Plan, “the lynchpin of the MRPI Model.” In
re Elias, 294 Mich App 507, 519; 811 NW2d 541 (2011) (quotation marks and citation omitted).
The TAPs “consist of summaries of the offender’s Case Management Plan at critical junctures in
the transition process[] and are prepared with each prisoner . . . at the point of the parole
decision . . . .” Id. (quotation marks and citation omitted).


                                                -7-
       Parole Bd, 460 Mich. 511, 519, 523; 596 NW2d 598 (1999), and to inform the
       prisoner of “specific recommendations for corrective action” if necessary “to
       facilitate release,” MCL 791.235(12). [In re Elias, 294 Mich App at 522–23.]

        By contrast, parolable lifers sentenced for a crime committed before October 1, 1992, as
is the case with the present defendant, become eligible for parole after they have served 10
calendar years of their sentence. MCL 791.234(7)(a). The prisoner may be placed on parole
according to the conditions prescribed in MCL 791.234(8), which provide in relevant part:

               (a) At the conclusion of 10 calendar years of the prisoner’s sentence and
       thereafter as determined by the parole board until the prisoner is paroled,
       discharged, or deceased, and in accordance with the procedures described in
       subsection (9), 1 member of the parole board shall interview the prisoner. The
       interview schedule prescribed in this subdivision applies to all prisoners to whom
       subsection (7) applies, regardless of the date on which they were sentenced.

               (b) In addition to the interview schedule prescribed in subdivision (a), the
       parole board shall review the prisoner’s file at the conclusion of 15 calendar years
       of the prisoner’s sentence and every 5 years thereafter until the prisoner is
       paroled, discharged, or deceased. A prisoner whose file is to be reviewed under
       this subdivision shall be notified of the upcoming file review at least 30 days
       before the file review takes place and must be allowed to submit written
       statements or documentary evidence for the parole board’s consideration in
       conducting the file review.

                (c) A decision to grant or deny parole to the prisoner must not be made
       until after a public hearing held in the manner prescribed for pardons and
       commutations in sections 44 and 45. Notice of the public hearing must be given
       to the sentencing judge, or the judge’s successor in office. Parole must not be
       granted if the sentencing judge files written objections to the granting of the
       parole within 30 days of receipt of the notice of hearing, but the sentencing
       judge’s written objections bar the granting of parole only if the sentencing judge
       is still in office in the court before which the prisoner was convicted and
       sentenced. A sentencing judge’s successor in office may file written objections to
       the granting of parole, but a successor judge’s objections must not bar the
       granting of parole under subsection (7). If written objections are filed by either
       the sentencing judge or the judge’s successor in office, they must be made part of
       the prisoner’s file.

        Even a cursory comparison of the parole procedures applicable to juvenile offenders
resentenced after Miller to term-of-years sentences with those applicable to juvenile offenders
who received parolable life sentences leads to the conclusion that parole procedures are more
favorable to the former than to the latter. “[P]arole guidelines need not be prepared for prisoners
serving parolable life sentences until the parole board is faced with the decision whether to
release the prisoner.” Jackson v Dep’t of Corrections, 247 Mich App 380, 384; 636 NW2d 305
(2001). In other words, parolable lifers do not get the benefit of the parole guidelines until after
an interview with a member of the parole board, after the sentencing judge or the judge’s

                                                -8-
successor has had an opportunity to register any objections, and after a public hearing of the type
contemplated for prisoners seeking pardon or commutation. If after regular review of the
parolable lifer’s paper file the board issues a “no interest” decision, it is not required “to inform
the prisoner of “specific recommendations for corrective action” if necessary “to facilitate
release,” MCL 791.235(12), because a “no interest” decision is not a “final determination.”
Gilmore v Parole Bd, 247 Mich App 205, 227-228; 635 NW2d 345 (2001). Likewise, a “no
interest” decision is not appealable because it did not progress “through all the steps in the parole
eligibility process to the point where an appealable ‘ultimate decision’ to grant or deny parole
was rendered.” Id. at 230-231. As envisioned, the parole procedure does give juvenile offenders
sentenced to parolable life an opportunity to submit written statements or documentary evidence
establishing reasons for parole, such as their maturity and rehabilitation. However, we are
sympathetic to defendant’s point that the procedures for term-of-years sentences are better than
those for parolable life sentences, and that the potential for meaningful review in his case has
gone largely unrealized for an unknown reason.

        The essence of defendant’s sentence challenge, however, is not that the sentence itself is
invalid. Rather, it is that the policies and procedures of the parole board are unconstitutional
based on an application of Miller and Graham to those policies and procedures because they
deprive defendant of any real possibility of parole, and hence, do not “give [juvenile]
defendants . . . some meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation.” Graham, 560 US at 75. However, invalidating defendant’s valid sentence
and resentencing him to a term-of years is not the answer. The appropriate vehicle in which to
seek redress of the alleged wrong done by the parole board is a claim for relief under 42 USC §
1983 filed against the parole board. See Wershe v Combs, 763 F 3d 500 (CA 6, 2014)
(indicating that a § 1983 action was the appropriate vehicle to challenge a change in the
procedures used to determine whether a defendant is eligible for parole); Greiman v Hodges, 79
F Supp 3d 933 (SD Iowa, 2015) (denying parole board’s motion to dismiss the juvenile
offender’s § 1983 action alleging that parole procedures denied him a meaningful opportunity to
obtain release); Hayden v Keller, 134 F Supp 3d 1000 (ED NC, 2015) (juvenile offender
prevailed in § 1983 motion alleging that North Carolina parole process denied him a meaningful
opportunity to obtain parole release), app dismissed 667 Fed Appx 416 (CA 4, 2016).6




6
  Defendant relied on Atwell v Florida, 197 So 3d 1040 (2016), in which Florida’s Supreme
Court held that the defendant’s sentence of parolable life violated the Eighth Amendment
because, under the statutes governing Florida’s parole process, Atwell would not be eligible for
parole until 2130, thus effectively making his parolable life sentence a de facto life sentence.
Atwell, 197 So 3d at 1050. The Florida court concluded that the only way to correct Atwell’s
sentence was to remand the matter for resentencing. Id. Like Atwell, the present defendant
argues that the parole process has effectively turned his sentence into a de facto life sentence
without the possibility of parole, and that resentencing is the only way to correct it. However,
the Florida Supreme Court abrogated Atwell in Franklin v Florida, 258 So 3d 1239 (2018).
Relying on Virginia v LeBlanc, __ US __, 137 S Ct 1726; 198 L Ed 2d 186 (2017), which held
that because the Virginia geriatric release program employed normal parole factors, it satisfied


                                                -9-
        In sum, a sentence of life with the possibility of parole was a valid sentence for second-
degree murder under state law, MCL 750.317, and it meets the demands of Miller and its
associated cases, Williams, __ Mich App at __; slip op at 4. “A trial judge has the authority to
resentence a defendant only when the previously imposed sentence is invalid.” People v Moore,
468 Mich 573, 579; 664 NW2d 700 (2003). Defendant’s sentence is not invalid; therefore, he is
not entitled to resentencing.

                            IV. CONSTITUTIONAL VIOLATIONS

       The prosecution argues that the trial court erred as a matter of law in rather summarily
concluding that defendant’s sentence violates his due process and equal protection rights. We
agree.

         In order to have a protected liberty interest, defendant must have a right or entitlement to
something, not just a possibility. See Glover, 460 Mich at 521. “[T]he due process right at a
typical sentencing hearing is the right to be sentenced on the basis of accurate information.”
People v Eason, 435 Mich 228, 239; 458 NW2d 17 (1990). In addition, because sentencing is a
critical stage of criminal proceedings, a defendant has a Sixth Amendment right to counsel.
People v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996). Defendant has not argued that the
sentencing court violated either of these due-process rights, nor has he identified any other due-
process right that the sentencing court allegedly violated. Defendant’s original sentence
provided him the opportunity for parole; to the extent he implies that the trial court should have
made obtaining parole easier by sentencing him to a term-of-years sentence, he again
demonstrates that his dispute is with the parole board, not the sentencing court. Moreover, the
trial court’s sentence allowed defendant to be considered for parole after ten years; a term-of-
years sentence would likely have delayed by a significant period of time his opportunity to be
considered for parole.

        The equal protection clause, US Const, Am XIV, Const 1963, art 1, § 2, does not create
substantive rights; rather, it embodies the general rule that states must treat like cases alike but
may treat unlike cases accordingly. Vacco v Quill, 521 US 793, 117 S Ct 2293; 138 L Ed 2d 834
(1997). The equal protection clause guarantees that states must treat people similarly situated
alike, but it does not guarantee that people in different circumstances will be treated the same. In
re Parole of Hill, 298 Mich App 404, 420; 827 NW2d 407 (2012).

        Defendant sought relief from judgment on the ground that his sentence was invalid. A
trial court may sentence a juvenile convicted of first degree murder to life in prison without the
possibility of parole, MCL 750.316, MCL 769.25(2), MCL 769.25a(3), or to a term of years with



Graham’s “meaningful opportunity” requirement, the Florida Supreme Court held that it had
previously misapplied Graham and Miller. Franklin, 258 So 3d at 1241. The Florida court
concluded that because “[the defendant’s] sentences include eligibility for parole there is no
violation of the categorical rule announced in Graham. Id. A petition for certiorari of Franklin
was docketed in the United States Supreme Court on April 4, 2019.


                                                -10-
a maximum of not more than 60 years and a minimum between 25 and 40 years, MCL 769.25(9).
Juveniles sentenced for first-degree murder are not eligible for parole until they have served at
least 25 years in prison. A trial court may sentence a juvenile convicted of second-degree
murder to a parolable life sentence or to a term of years. MCL 750.317. Juveniles sentenced for
second-degree murder before October 1, 1992, are eligible for parole after 10 years, while those
sentenced after October 1, 1992, are eligible for after 15 years.

        Neither the trial court nor defendant points to anything in these statutes that discriminates
against juveniles sentenced for second-degree murder. To the extent that the trial court
construed an equal protection violation based on the parole procedures applicable to defendant
when compared to those applicable to a juvenile with a term of years sentence, the fact that these
two groups are treated differently does not give rise to an equal protection violation because they
are not similarly situated. To be considered similarly situated, the challenger and his
comparators must be prima facie identical in all relevant respects or directly comparable in all
material respects. See People v James, __ Mich App __; __ NW2d __ (2018) (Docket No.
342504); slip op at 4. Although both groups are comprised of juvenile offenders, each group has
been convicted of a materially different crime, and those juveniles sentenced to parolable life are
not similarly situated to those sentenced to life without the possibility of parole or to a term-of-
years sentence. Therefore, although one would think that a juvenile receiving a parolable life
sentence for second-degree murder would have an easier parole consideration process than a
juvenile sentenced to a term of years for first degree murder, their different treatment by the
statutes pertaining to parole procedures does not constitute an equal protection violation. See In
re Parole of Hill, 298 Mich App at 420. Finally, to the extent that the trial court’s opinion
regarding equal protection arises from the parole board’s handling of defendant’s opportunities
for parole, this is not a sentencing matter. As we said before, the appropriate vehicle in which to
seek redress of the alleged wrong done by the parole board is a claim for relief under 42 USC §
1983 filed against the parole board.

                             V. DEFENDANT’S CROSS-APPEAL

       On cross-appeal, defendant argues that the trial court erred in rejecting his argument for
resentencing based People v Coles, 417 Mich 523, 549; 339 NW2d 440 (1983), overruled in part
and on other grounds by People v Milbourn, 453 Mich 630, 644; 461 NW2d 1 (1990). We
disagree.

        Relevant to the present appeal, MCR 6.508(D)(3) provides that a court may not grant
relief on a motion for relief from judgment which:

       (3) alleges grounds for relief, other than jurisdictional defects, which could have
       been raised on appeal from the conviction and sentence or in a prior motion under
       this subchapter, unless the defendant demonstrates

               (a) good cause for failure to raise such grounds on appeal or in the prior
               motion, and

               (b) actual prejudice from the alleged irregularities that support the claim
               for relief. As used in this subrule, “actual prejudice” means that,

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                                                      * * *

                      (ii) in a conviction entered on a plea of guilty . . . the defect in the
                      proceedings was such that it renders the plea an involuntary one to
                      a degree that it would be manifestly unjust to allow the conviction
                      to stand;

                      (iii) in any case, the irregularity was so offensive to the
                      maintenance of a sound judicial process that the conviction should
                      not be allowed to stand regardless of its effect on the outcome of
                      the case;

                      (iv) in the case of a challenge to the sentence, the sentence is
                      invalid. [MCR 6.508(D)(3).]

         Thus, in order for defendant to be entitled to relief under MCR 6.508(D)(3), defendant
had to show “good cause” for his failure to raise the Coles argument in his prior motion for
relief, and “actual prejudice,” which, in this case, involves demonstrating that his parolable life
sentence for second-degree murder was invalid. Assuming for the sake of argument that
defendant established the necessary “good cause” by way of ineffective assistance of his
appellate counsel in failing to raise a Coles argument when it was issued three years after
defendant’s sentence, defendant has failed to meet his burden to establish “actual prejudice”;
specifically, he has failed to show that his sentence for second-degree murder was invalid at the
time.

       The Coles Court held in relevant part that, in order to facilitate appellate review,
sentencing courts must articulate on the record the reasons for the sentences they were imposing.
Coles, 417 Mich at 549. Further, an appellate court

       shall, upon a defendant’s request in an appeal by right or in an appeal by leave
       granted, review a trial court’s exercise of discretion in sentencing, but may afford
       relief to the defendant only if the appellate court finds that the trial court, in
       imposing the sentence, abused its discretion to the extent that it shocks the
       conscience[7] of the appellate court. If under this standard the appellate court
       deems that resentencing is warranted, the appellate court shall, after specifically
       stating its reasons for such action, remand the case to the trial court for
       resentencing. [Id. at 550.]

               Defendant admitted at his plea colloquy that he had tied the victim’s hands
       behind her back, pushed her and caused her to fall head first into the water, waited
       until he no longer heard her splashing before he left, and that he had intended to
       kill her. In addition, the presentence investigation report prepared for his


7
 The “shocks the conscience” test was later replaced with a proportionality test. People v
Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990).


                                               -12-
       sentencing revealed that prior to the offense giving rise to his guilty plea,
       defendant had been arrested and charged with first-degree criminal sexual conduct
       upon a different victim, and that also involved tying the victim’s hands behind her
       back. In that matter, defendant had been allowed to plead guilty to assault with a
       deadly weapon. In imposing sentence, the trial court explained:


        “[A]fter deep, careful, lengthly [sic] consideration and soul-searching, I have
       concluded that the sentence in this case should be life. This does not slam the
       door entirely as to future possible release. However, it does give an insurance
       [sic] that there will be careful consideration before there is a release.

              Furthermore, other than a contingent one that I will later mention, I make
       no recommendations as to what anyone should or should not do regarding future
       possible release.

                                              * * *

               I further make recommendations that he be given complete psychological,
       psychiatric, physical examinations, whatever is necessary, and that he be given
       the treatment as indicated by those examinations.

Thus, after considering the severity of defendant’s actions, the trial court imposed a life sentence
that appeared to take into consideration defendant’s particular circumstances and need for
treatment, and provided an eventual opportunity for possible release.

        Defendant has failed to show that his sentence was invalid or disproportionate to the
crime to which he pled guilty. Consequently, he has failed to show that he is entitled to relief
from his sentence for second-degree murder of life with the possibility for parole. Because we
conclude that defendant’s Coles argument lacks merit, we decline to consider his associated
claim of ineffective assistance of appellate counsel. “Failing to advance a meritless argument or
raise a futile objection does not constitute ineffective assistance of counsel.” People v Ericksen,
288 Mich App 192, 201; 793 NW2d 120 (2010).

      Reversed and remanded for entry of an order denying defendant’s motion for relief from
judgment. We do not retain jurisdiction.



                                                             /s/ Jane M. Beckering
                                                             /s/ Deborah A. Servitto
                                                             /s/ Cynthia Diane Stephens




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