                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 16, 2018
               Plaintiff-Appellee,

v                                                                  No. 338986
                                                                   Wayne Circuit Court
MICHAEL EDWARD JARRETT,                                            LC No. 93-008770-01-FC

               Defendant-Appellant.


Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ.

PER CURIAM.

        Defendant appeals as of right the trial court’s order denying his motion to apply earned
disciplinary credits to his new term-of-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 disciplinary credits to his term-of-years sentence. In accordance with this Court’s recent
decision in People v Wiley, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No.
336898), we affirm defendant’s term-of-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 defendant 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 decision in Miller, 567 US 460, and the Michigan Legislature’s
enactment of MCL 769.25a, which provides sentencing procedures for juvenile offenders who
had been sentenced to life imprisonment without parole and had exhausted their appeals. On
appeal, defendant challenges the constitutionality of MCL 769.25a(6), which proscribes the
deduction of accumulated good time and disciplinary 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.


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                                  I. EX POST FACTO CLAUSE

        Defendant argues that MCL 769.25a(6) deprives him of disciplinary credits in violation
of the Ex Post Facto Clauses 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 his 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 the 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 (1996). 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 Hill 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 adopted the district court’s reasoning in Hill and held
that MCL 769.25a(6) unconstitutionally deprives juvenile offenders of the application of earned
disciplinary credits to their term-of-years sentences in violation of the Ex Post Facto Clauses of
both the United States and Michigan Constitutions. Wiley, ___ Mich App at ___; slip op at 23.
In Wiley, the defendants, who are similarly situated to defendant in this 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-of-years
sentence. The defendants appealed, arguing that MCL 769.25a(6) violates the Ex Post Facto
Clauses of the United States and Michigan Constitutions, because it precluded them from
receiving disciplinary credits on their term-of-years sentences, and thus is a statute that
retroactively increased 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 14,
               quoting Hill, ___ F Supp 3d ___; slip op at 16 (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


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under MCL 769.25a. Wiley, ___ Mich App at ___; slip op at 19-20, 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-of-years sentence in violation of Ex Post Facto Clauses 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 his minimum and maximum
sentences in order to determine his parole eligibility.

          II. DEFENDANT’S ADDITIONAL CONSTITUTIONAL CHALLENGES

        Because MCL 769.25a(6) is unconstitutional as a violation of the Ex Post Facto Clauses
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 Constitutions, as well as
deprives him of due process. Defendant has received 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-of-years sentence, but hold that MCL 769.25a(6) is
unconstitutional.



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




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