                           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.

BOONSTRA, P.J. (concurring in part and dissenting in part).

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



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


                                                -1-
                                  I. THE ISSUES ON APPEAL

        In Docket No. 336898, defendant Christopher Wiley ostensibly appeals by right the trial
court’s order resentencing him to 25 to 60 years’ imprisonment for his 1995 conviction of first-
degree murder, MCL 750.316, under MCL 769.25a. Wiley’s brief on appeal contains neither the
required “statement of the basis of jurisdiction,” MCR 7.212(C)(4), nor the required “statement
of questions involved,” MCR 7.212(C)(5). Wiley’s arguments on appeal are limited, however, to
raising constitutional challenges to MCL 769.25a.2 Wiley did not raise any constitutional claims
at his resentencing. To be preserved for appellate review, an issue must be raised before and
addressed by the trial court. Consequently, the constitutional issues are not preserved with
regard to Wiley. People v Giovannini, 271 Mich App 409, 414; 722 NW2d 237 (2006). We
review unpreserved constitutional issues for “plain error affecting defendant’s substantial rights.”
People v Bowling, 299 Mich App 522, 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). Wiley concedes that the proper analysis is
that of plain error, but does not articulate what errors the trial court purportedly made.

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




2
  The constitutional issues raised by Wiley on appeal include (a) whether MCL 769.25a(6)
violates the Ex Post Facto Clause of United States and Michigan Constitutions, US Const art I,
§ 10; Const 1963, art 1, § 10; (2) whether MCL 769.25a(6) improperly repeals an initiative
adopted by voters as “Proposal B,” in violation of Const 1963, art. 2, § 9; and (c) whether
MCL 769.25a(6) violates the Title-Object Clause of the Michigan Constitution, Const 1963, art
4, § 24. In light of its disposition of the first of these issues, the majority does not reach the
remaining two issues. I would not reach any of them in the context of these appeals.
3
  MCR 7.203(A)(1) provides for an appeal of right of a “final judgment or final order” of a
circuit court, “as defined in MCR 7.202(6). MCR 7.202(6)(b)(iii) defines a “final judgment or
final order” in a criminal case to include “a sentence imposed following the granting of a motion
for resentencing.”


                                                -2-
             II. THE PARTIES’ MORPHING LEGAL POSITIONS

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

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

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

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

                                        -3-
       judicial review of the denial of parole by the Parole Board.” Importantly, this
       Court has no subject-matter jurisdiction to consider defendant’s challenge to the
       Parole Board’s decisions in determining a prisoner’s eligibility for parole or to
       deny him parole.

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

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

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

       After the filing of plaintiff’s briefs on appeal, both defendants moved to voluntarily
dismiss their appeals under MCR 7.218. Plaintiff, then represented principally by the Attorney
General, opposed the motions, arguing that the ex post facto issue presented questions of state
law that should be decided by a state court, and that defendants had moved to dismiss their




                                               -4-
appeals because of the pendency of the related putative class action challenge presented in the
United States District Court proceeding captioned Hill v Snyder, Case No. 10-cv-14568. This
Court denied defendants’ motions to dismiss in separate orders.4

        At oral argument, counsel for defendants agreed with the position stated in plaintiff’s
briefs—that the proper parties are not before the Court, that the matter is not ripe, and that the
sentencing judge has no authority to compute good time or disciplinary credits or to order the
parole board or the MDOC to do so.5

                           III. SUBJECT-MATTER JURISDICTION

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

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




4
 See People v Rucker, unpublished order of the Michigan Court of Appeals, issued February 16,
2018 (Docket No. 338870); People v Wiley, unpublished order of the Michigan Court of
Appeals, issued March 5, 2018 (Docket No. 336898).
5
  As noted, the parties’ positions in this case have morphed and shifted with the developments in
Hill. For example, plaintiff’s briefs on appeal (in part challenging this Court’s subject matter
jurisdiction) were filed before the December 20, 2017 decision of the United States Court of
Appeals for the Sixth Circuit, see Hill v Snyder, 878 F3d 193 (CA 6, 2017), that reversed the
District Court’s earlier dismissal of the ex post facto challenge in that case, see Hill v Snyder,
unpublished opinion of the United States District Court for the Eastern District of Michigan,
issued February 7, 2017 (Case No. 10-14568). And defendants filed their motions to dismiss
their appeals—and plaintiff opposed those motions—after that decision of the Sixth Circuit.
6
  See People v Wiley, People v Rucker, unpublished order of the Michigan Court of Appeals,
issued January 17, 2018 (Docket Nos. 336898/338870).
7
  Hill v Snyder, opinion of the United States District Court for the Eastern District of Michigan,
issued April 9, 2018 (Case No. 10-cv-14568).


                                                -5-
        In appealing their sentences, defendants did not challenge the sentences themselves, but
essentially sought a declaration from this Court that MCL 769.25a(6) is unconstitutional and that
it must not be applied so as to affect their future parole eligibility. 8 Plaintiff argued that the
request was improper in this context. Now, in an unusual swapping of legal positions,
defendants essentially concede that their request was improper; yet plaintiff now advocates that
we issue the diametrically-opposed declaration.

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

        First, it bears repeating that defendants did not seek, by their constitutional challenges,
any relief from their convictions or from their sentences as imposed by the trial court. Yet the
rules of this Court limit its jurisdiction over appeals by right to those filed by an “aggrieved
party” from an order of the trial court. See MCR 7.203(A). “To be aggrieved, a party must have
suffered a “concrete and particularized injury.” Federated Ins Co v Oakland Co Rd Comm, 475
Mich 286, 291; 715 NW2d 846 (2006). Further, “a litigant on appeal must demonstrate an injury
arising from either the actions of the trial court or an appellate court judgment rather than an
injury arising from the underlying facts of the case.” Id. at 492 (emphasis added). Neither
defendants nor plaintiff has identified any injury arising from any actions of the trial court. I
therefore conclude that, apart from Rucker’s Alleyne challenge, defendants are not “aggrieved
parties” for the purpose of challenging MCL 769.25a(6) in this context.

         Moreover, and regardless of whether defendants presented their constitutional challenges
in the trial court, it is far from clear to me that the trial court would have possessed the authority,
in the context of the criminal proceedings then before it, to essentially enter a declaratory
judgment that would have bound the parole board or the MDOC; our Supreme Court has stated
that, depending on the type of underlying claim, a complaint for declaratory relief against a state
agency must be filed in either the Court of Claims or the circuit court. See Parkwood Ltd
Dividend Housing Ass’n v State Housing Dev Authority, 468 Mich 763, 773-775; 664 NW2d 185
(2003). These cases are criminal prosecutions, however, not actions for declaratory relief. No
such complaint was filed, nor could one realistically have been filed, in the course of these
criminal proceedings. Yet defendants essentially sought (and plaintiff now seeks) to transform
these appeals into declaratory judgment proceedings originating in this Court. We lack original
jurisdiction over such actions. Id. Further, we are an error-correcting court, see W.A. Foote
Mem Hosp v Michigan Assigned Claims Plan, 321 Mich App 159, 181; 909 NW2d 38 (2017).
But neither plaintiff nor defendants have identified any errors by the trial court that either of
them seeks to have us correct, and the declaratory relief that defendants essentially sought (and


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


                                                 -6-
plaintiff now seeks) was never even considered by a court with original jurisdiction over such
matters.

        In any event, even if we possessed the ability to order declaratory relief in this context,
our ripeness doctrine precludes “the adjudication of hypothetical or contingent claims before an
actual injury has been sustained. A claim is not ripe if it rests upon ‘contingent future events that
may not occur as anticipated, or indeed may not occur at all.’ ” See Michigan Chiropractic
Council v Comm’r of OFIR, 475 Mich 363, 371 n 14; 716 NW2d 561 (2006), overruled on other
grounds by Lansing Schools Educ Ass’n v Lansing Bd of Educ, 487 Mich 349 (2010), quoting
Thomas v Union Carbide Ag Products Co, 473 US 568, 580-581; 105 S Ct 3325, 87 L Ed 2d 409
(1985) (citation omitted); see also Van Buren Charter Twp v Visteon Corp, 319 Mich App 538,
554; 904 NW2d 192 (2017). In this case, even assuming that defendants accrued disciplinary
credits during their terms of imprisonment before resentencing, MCL 800.33(3) and (5) provide
that such credits “shall be deducted from a prisoner’s minimum and maximum sentence in order
to determine his or her parole eligibility dates.” MCL 800.33 also empowers the warden of a
prison, as well as the parole board in the case of parole violations, to both reduce and restore
such credits based on prisoner conduct.9 See MCL 800.33(6)-(10), (13). In other words, the
language of MCL 800.33 pointedly does not provide for a trial court, when resentencing a
defendant, to consider the disciplinary credits then earned by the defendant, because the amount
of credits earned is not then known or even a sum certain—a defendant may gain and lose credits
based on his or her conduct in prison. Rather, these credits are to be considered by the parole
board or the MDOC, at the appropriate future time, in determining parole eligibility.

        Although defendants appeal from their resentencings, they had suffered no injury to their
parole eligibility at the time of the resentencings. Rather, their claims appear to rest upon a
contingent future event, i.e., a denial of disciplinary credits, assuming they were earned and have
not been forfeited by misconduct, at the time that their parole eligibility will be determined
(again, assuming that MCL 769.25 a(6) exists in its current form at that time). Such a claim is
not ripe. See Michigan Chiropractic 475 Mich at 371 n 14; see also In re Parole of Johnson,
235 Mich App 21, 25; 596 NW2d 202 (1999) (“[A] prisoner is not truly ‘eligible’ for parole until
each and every one of the statutory ‘conditions’ [for the granting of parole] has been met.”).

        My conclusion is strengthened by the fact that a prisoner may not take an appeal, either
by claim of right or by leave granted, from the denial of his parole. See MCL 791.234(11); see
also Morales v Michigan Parole Bd, 260 Mich 29, 42; 676 NW2d 221 (2003). A prisoner has no
constitutional right to parole. Morales, 260 Mich at 39. A prisoner may, however, use the “legal
tools of habeas corpus and mandamus” actions in order to “have the judiciary review the legality
of inmates’ imprisonment.” Id. at 42. I see no reason why this same standard should not apply
to a prisoner aggrieved by a potential future denial of parole, even if he could overcome the
ripeness problem. I note that cases relied upon by the federal Court in Hill v Snyder, opinion of


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


                                                -7-
the United States District Court for the Eastern District of Michigan, issued April 9, 2018 (Case
No. 10-cv-14568), for the proposition that “good time credit is earned even by individuals
serving life sentences,” arose in such contexts. See Moore v Buchko, 379 Mich 624; 154 NW2d
437 (1967) (mandamus); Meyers v Jackson, 245 Mich 692; 224 NW2d 356 (1929) (habeas
corpus); In petition of Cammarata, 341 Mich 528; 67 NW2d 677 (1954) (habeas corpus).10

        The Attorney General, as amicus curiae, nonetheless contended at oral argument in this
case that we should decide the ex post facto issue in the context of these criminal sentencing
appeals because this Court and our Supreme Court have previously considered issues involving
good time credits or disciplinary credits on direct review. The majority agrees. But I find these
cases distinguishable. For example, in People v Tyrpin, 268 Mich App 368; 710 NW2d 260
(2005), the defendant had originally been sentenced to a jail term, and was later resentenced,
after a prosecution appeal, to a prison term. Id. at 370. The defendant argued that the jail good-
time credit that he had earned under MCL 51.282 should have been applied on resentencing by
increasing the number of days for which he would have received credit for time served. Id. at
371. The defendant made no argument concerning parole eligibility, but was aggrieved by what
he believed to be the trial court’s failure to add 61 days to his sentencing credit as reflected in the
judgment of sentence. Id. The injury alleged by the defendant (although his claim was
ultimately unsuccessful) was neither contingent nor hypothetical; the defendant alleged that the
trial court had erred by calculating his credit for time served. Id. Our analysis of good-time and
disciplinary time statutes was conducted in that context. By contrast, there are no alleged errors
by the trial court in the instant appeals.

        In People v Cannon, 206 Mich App 653; 522 NW2d 716 (1994), the defendant argued
that the imposition of a fixed jail sentence with a specified release date violated his right to
receive good-time jail credits under MCL 51.282. Id. at 654. Again, the defendant was
aggrieved by the trial court’s sentencing order, which had already injured him by fixing his
release date to a specific date regardless of sentencing credits. Id. at 656 (holding that “a court
may not deprive a prisoner of good-time credit to which a prisoner may be entitled under statute
before that prisoner has even begun serving the term of imprisonment.”)

        And in People v Johnson, 421 Mich 494; 364 NW2d 654 (1984), our Supreme Court
considered the effects of Proposal B on life sentences. Id. at 497. Although the Court did
declare Proposal B to be binding on the parole board with regard to indeterminate sentences, the
context of the defendant’s appeal was that the trial court had not correctly informed him of the
consequences of his guilty plea. Id. at 496. Once again, the defendant was aggrieved by an
action of the trial court.11




10
     Hill itself arose in the context of a claim under 42 USC 1983.
11
  I note also that our Supreme Court is much freer than we, as an intermediate appellate court, to
consider issues beyond the claimed errors of the lower courts and to opine on broader issues of
Michigan law. See People v Woolfolk, 304 Mich App 450, 475-476; 848 NW2d 169 (2014).


                                                  -8-
                                         V. CONCLUSION
        For all of these reasons, I would not reach the constitutional issues presented.12 They are
not properly raised in the context of these appeals, inasmuch as they do not present any claim of
error by the trial court in its resentencing decisions. Plaintiff is already litigating the ex post
facto issue with a class of plaintiffs (which includes Wiley and Rucker) in federal court, and
plaintiff or defendants remain free to additionally raise the issue in a proper state court
proceeding in which the proper parties are present. By contrast, Wiley and Rucker are the only
persons who will be directly affected by this Court’s disposition of the issue in the context of
these criminal sentencing appeals; in essence, we would be declaring the rights of two
individuals with regard to this statute, while in the meantime a class action (of which Rucker and
Wiley are also a part) is already proceeding and has already resulted in declaratory relief.

       Because I would not reach the constitutional issues, and because I agree with the
majority’s treatment of the Alleyne issue, I would affirm (and would not, as does the majority,
affirm while still issuing a declaration of unconstitutionality).



                                                            /s/ Mark T. Boonstra




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


                                                -9-
