S T A T E O F M I C H I G A N C O U R T O F A P P E A L S PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED November 6, 2018 and ATTORNEY GENERAL, Intervening Appellee, v No. 338658 Wayne Circuit Court CORTEZ ROLAND DAVIS, LC No. 94-002089-01-FC Defendant-Appellant. Before: SWARTZLE, P.J., and JANSEN and O BRIEN, JJ. PER CURIAM. Defendant appeals as of right his resentencing, under MCL 769.25a, to 25 to 60 years imprisonment for his 1994 conviction of first-degree murder, MCL 750.316, which the trial court ordered to run consecutive to his sentence for carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b. We affirm defendant s sentences. Defendant also challenges the application of MCL 769.25a(6) to his sentencing, arguing that the provision unconstitutionally deprives him of the application of earned disciplinary credits to his sentence. This Court recently addressed this issue in People v Wiley, Mich App ; NW2d (2018) (Docket No. 336898), and held that MCL 769.25a(6) was unconstitutional. Because we are bound by Wiley under MCR 7.215(J)(1), we conclude that MCL 769.25a(6) may not be used to prevent defendant from having his disciplinary credits deducted from his minimum and maximum sentences to determine parole eligibility. In 1994, the sentencing court sentenced defendant who, at the time, was a juvenile as an adult to 10 to 40 years imprisonment for defendant s first-degree murder conviction. The prosecution appealed that sentence, and this Court peremptorily reversed and remanded for -1-
resentencing. 1 On remand, the trial court resentenced defendant to mandatory life in prison without the possibility of parole. Some years after defendant s resentencing, the United States Supreme Court in Miller v Alabama, 567 US 460, 489; 132 S Ct 2455; 183 L Ed 2d 407 (2012), declared that mandatory-sentencing schemes that required children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes violated the Eighth Amendment s ban on cruel and unusual punishment. Following Miller, our Legislature enacted MCL 769.25, which set forth the procedure for resentencing criminal defendants who fit Miller s criteria, provided either that their case was still pending in the trial court or that the applicable time periods for appellate review had not elapsed. Wiley, Mich App at ; slip op at 3. [I]n anticipation of the possibility that Miller might be determined to apply retroactively, our Legislature simultaneously enacted MCL 769.25a, which set forth the procedure, in that event, for the resentencing of defendants who fit Miller s criteria, even if their cases were final. Id. at ; slip op at 3. In Montgomery v Louisiana, US ; 136 S Ct 718; 193 L Ed 2d 599 (2016), the United States Supreme Court declared that Miller applied retroactively, thereby triggering MCL 769.25a s provisions. As relevant here, MCL 769.25a provides: (4) The following procedures apply to cases described in subsections (2) and (3): (a) Within 30 days after the date the supreme court s decision becomes final, the prosecuting attorney shall provide a list of names to the chief circuit judge of that county of all defendants who are subject to the jurisdiction of that court and who must be resentenced under that decision. (b) Within 180 days after the date the supreme court s decision becomes final, the prosecuting attorney shall file motions for resentencing in all cases in which the prosecuting attorney will be requesting the court to impose a sentence of imprisonment for life without the possibility of parole. A hearing on the motion shall be conducted as provided in section 25 of this chapter. (c) If the prosecuting attorney does not file a motion under subdivision (b), the court shall sentence the individual to a term of imprisonment for which the maximum term shall be 60 years and the minimum term shall be not less than 25 years or more than 40 years. Each victim shall be afforded the right under section 15 of the William Van Regenmorter crime victim s rights act, 1985 PA 87, MCL 780.765, to appear before the court and make an oral impact statement at any resentencing of the defendant under this subdivision. 1 People v Davis, unpublished order of the Court of Appeals, entered November 23, 1994 (Docket No. 176985). -2-
* * * (6) 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. Following Montgomery, the prosecution in this case did not file a motion under MCL 769.25a(4)(b), so defendant was resentenced under MCL 769.25a(4)(c) to 25 to 60 years imprisonment for his first-degree murder conviction. We initially address defendant s argument on appeal that MCL 769.25a(6) is unconstitutional. As already stated, this Court addressed this issue in Wiley and held the statute unconstitutional. The arguments put forth by the parties in this case are the same as the arguments addressed in Wiley, so we will not belabor this discussion. Instead, for the reasons stated by the majority in Wiley, we conclude that MCL 769.25a(6) unconstitutionally deprives defendant of the application of earned disciplinary credits to his sentence. See Wiley, Mich App at ; slip op at 11-20, 23. Because Wiley is published, we are compelled under MCR 7.215(J)(1) to follow that decision, and therefore hold that MCL 769.25a(6) may not be used to prevent defendant from having his disciplinary credits deducted from his minimum and maximum sentences to determine parole eligibility. Turning to defendant s other arguments on appeal, he also challenges the constitutionality of MCL 769.25a(4)(c). Defendant contends that the Legislature s enactment of MCL 769.25a(4)(c) as applied to him violated the Ex Post Facto Clauses of the United States and Michigan Constitutions. We disagree. This Court reviews constitutional issues and questions of statutory interpretation de novo. People v Harris, 499 Mich 332, 342; 885 NW2d 832 (2016). It is well settled that acts of the legislature are presumed constitutional unless their unconstitutionality is clearly apparent. Sears v Cottrell, 5 Mich 251, 259 (1858); People v MacLeod, 254 Mich App 222, 226; 656 NW2d 844 (2002). The party challenging the constitutionality of a statute has the burden of proving its invalidity. People v Sadows, 283 Mich App 65, 67; 768 NW2d 93 (2009). As discussed in People v Tucker, 312 Mich App 645, 651; 879 NW2d 906 (2015): The United States and Michigan Constitutions prohibit ex post facto laws. People v Callon, 256 Mich App 312, 316-317; 662 NW2d 501 (2003), citing US Const art I, 10; Const 1963, art 1, 10. This Court has declined to interpret the Ex Post Facto Clause of the Michigan Constitution as affording broader protection than its federal counterpart. Callon, 256 Mich App at 317. All laws that violate ex post facto protections exhibit the same two elements: (1) they attach legal consequences to acts before their effective date, and (2) they work to the disadvantage of the defendant. Id. at 318. The critical question [for an ex post facto violation] is whether the law changes the legal consequences of acts completed before its effective date. Id. (quotation marks and citations omitted; alteration in original). -3-
The seminal case interpreting the federal Ex Post Facto Clause, Calder v Bull, 3 Dall 386; 3 US 386, 390; 1 L Ed 648 (1798), sets out the four basic categories of ex post facto violations: 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Defendant argues that MCL 769.25a(4)(c) violated the Ex Post Facto Clauses as applied to him because it increased his punishment. According to defendant, MCL 769.25a(4)(c) increased his punishment from 10 to 40 years imprisonment the sentence originally imposed by the trial court to a mandatory-minimum sentence of 25 years imprisonment. Resolution of this issue is straightforward. When defendant was originally sentenced, the law required the trial court to impose a sentence of life without the possibility of parole under MCL 750.316. It did not permit any other sentence. Miller subsequently declared mandatory-sentencing schemes requiring children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes to be unconstitutional. Montgomery declared Miller retroactive, which triggered MCL 769.25a. The prosecution in this case chose not to seek re-imposing a sentence of life without the possibility of parole under MCL 769.25a(4)(b), so when defendant was resentenced, the law required the trial court to sentence defendant to a minimum of 25 years under MCL 769.25a(4)(c). The law that MCL 769.25a changed was the requirement that a juvenile defendant convicted of first-degree murder be sentenced to life without the possibility of parole; under the changed law, the juvenile defendant convicted of first-degree murder previously subject to MCL 750.316 was no longer required to be sentenced to life without the possibility of parole, but was nonetheless required to be minimally sentenced to 25 years imprisonment. The 25-year mandatory-minimum sentence required by MCL 769.25a decreased the previous mandatory sentence of life without the possibility of parole under MCL 750.316. Thus, MCL 769.25a as applied to defendant actually decreased the punishment he could receive for a conviction of first-degree murder and, in so doing, did not violate the Ex Post Facto Clauses. Defendant urges us to ignore the Legislature s changing the law from MCL 750.316 to MCL 769.25a, and to focus instead on the trial court s original sentence of 10 to 40 years imprisonment. But this ignores that the focus of [an] ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of disadvantage,... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable. California Dep t of Corrections v Morales, 514 US 499, 506, n 3; 115 S Ct 1597; 131 L Ed 2d 588 (1995) (emphasis added). When the trial court first sentenced defendant in 1994, first-degree murder was not punishable by a sentence of 10 to 40 years imprisonment; it was only punishable by a sentence of lifetime imprisonment without the possibility of parole. Thus, the Legislature s later enactment of MCL 769.25a and, as applied here, its requirement -4-
that defendant receive at least a 25-year minimum sentence did not inflict[] a greater punishment than the law annexed to the crime, when committed, Calder, 3 US at 390 (emphasis omitted), because, when defendant committed first-degree murder in 1994, the law required he be sentenced to life without the possibility of parole. 2 Defendant next argues that the trial court impermissibly amended his judgment of sentence sua sponte in violation of MCR 6.429 as interpreted by our Supreme Court in People v Comer, 500 Mich 278; 901 NW2d 553 (2017). We disagree. This Court reviews de novo questions of law, including the interpretation and application of our court rules. People v Howell, 300 Mich App 638, 644; 834 NW2d 923 (2013). Defendant was originally resentenced on April 27, 2017. On May 30, 2017, the trial court sua sponte amended defendant s judgment of sentence, adding the following text to Line 13: Juvenile sentenced as adult. [Counts] 1-3 are concurrent and run consecutive to [Count] 4. MCR 6.435(A) allows a trial court to correct a clerical error in a criminal judgment of sentence, stating: (A) Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party, and after notice if the court orders it. Under this subrule, a court may correct a clerical mistake on its own initiative at any time, including after a judgment has entered. Comer, 500 Mich at 293. In 1994, defendant was convicted of felony murder, armed robbery, assault with intent to rob while armed (AWITRWA), and felony-firearm. In 1994, defendant was sentenced to concurrent sentences of 10 to 40 years imprisonment for the felony-murder conviction, and 10 to 25 years imprisonment for the armed-robbery and AWITRWA convictions, to run consecutively to a two-year sentence for the felony-firearm conviction. At defendant s first sentencing hearing, the trial court stated, Counts I, II, and III are concurrent. But Count IV, which is the Felony Firearm, must be done before any time is done on the others. At defendant s first resentencing hearing after this Court peremptorily reversed the trial court s first sentence, the trial court stated, Mandatorily, I must sentence you to natural life in prison on the murder one, and the mandatory two years on the felony firearm. And the other sentences will stand on the armed robbery and assault with intent to rob. The judgment of sentence that was 2 Defendant also argues that Miller effectively rendered MCL 750.316 unconstitutional as applied to juveniles, which in turn rendered any sentence imposed upon a juvenile under that statute void ab initio. See Johnson v White, 261 Mich App 332, 336; 682 NW2d 505 (2004). But this argument still ignores that, in 1994, first-degree murder was not punishable by 10 to 40 years imprisonment, so defendant cannot establish that MCL 769.25a increases the penalty by which [defendant s] crime is punishable. Morales, 514 US at 506, n 3. -5-
entered following this hearing states, Juvenile Sentenced as an adult. consecutively to Count 4. Count 1-3 run On April 27, 2017, on remand from our Supreme Court, the trial court resentenced defendant to 25 to 60 years imprisonment for his felony-murder conviction. At the April 27, 2017 resentencing hearing, the trial court only mentioned defendant s sentence for his first-degree murder conviction, which was the only conviction vacated by our Supreme Court s order. See People v Davis, 499 Mich 903, 903-904 (2016). The first page of the April 27, 2017 judgment of sentence indicates that defendant was convicted of felony murder, AWITRWA, and felony-firearm, and included a notation that his armed-robbery conviction was vacated in 1997. In the section listing defendant s sentences, the trial court only included the felony-murder sentence of 25 to 60 years imprisonment. But the judgment of sentence also indicated that there was no change to defendant s other sentences. On May 30, 2017, the trial court, without prompting from either party, amended the judgment of sentence to list defendant s sentences for the felony-firearm and AWITRWA convictions. As already stated, the trial court also added that defendant s felony-firearm conviction was to run consecutive to his other convictions. Based on this record, it is clear that the errors in the April 27, 2017 judgment arose from an oversight and therefore the constituted a clerical mistake. MCR 6.435(A). As the mistake was clerical, the trial court permissibly amended the judgment of sentence on its own initiative on May 30, 2017. Defendant contends that, based on Comer, we should conclude that the trial court s error was not clerical and review the trial court s correction under MCR 6.429. But defendant ignores that this case differs from Comer in a key respect; the parties in Comer did not contend that the failure to sentence [the] defendant to lifetime electronic monitoring was a clerical mistake because the original sentencing judge said nothing about lifetime electronic monitoring at the initial sentencing. Id. at 561. Here, unlike in Comers, the original sentencing judge notified defendant that his felony-firearm conviction would run consecutive to his other convictions. By the time of defendant s April 27, 2017 resentencing, the original judge had retired, and the judge that took over made a clerical error by failing to note that defendant s felony-firearm conviction ran consecutive to his other convictions. Based on defendant s original sentencing and prior judgments of sentence, he was clearly aware that his felony-firearm conviction ran consecutive to his other convictions, and he had no expectation that this would change; our Supreme Court s order only vacated his first-degree murder conviction. See Davis, 499 Mich at 903-904. For these reasons, we decline defendant s invitation to conclude that the error here was substantive. We affirm defendant s sentences and convictions, and, based on Wiley, Mich App at ; slip op at 11-20, 23, conclude that MCL 769.25a(6) may not be used to prevent defendant from receiving disciplinary credits on his minimum and maximum sentences. /s/ Kathleen Jansen /s/ Colleen A. O'Brien -6-
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 November 6, 2018 and ATTORNEY GENERAL, Intervening Appellee, v No. 338658 Wayne Circuit Court CORTEZ ROLAND DAVIS, LC No. 94-002089-01-FC Defendant-Appellant. Before: SWARTZLE, P.J., and JANSEN and O BRIEN, JJ. SWARTZLE, P.J. (concurring). I concur with the majority s resolution of defendant s claims involving (1) his original, flawed sentence, and (2) the trial court s clerical correction to the judgment of sentence. With respect to defendant s claim involving disciplinary or other sentencing-reducing credits (collectively, sentencing credits ), I concur with the judgment but disagree with binding precedent for the reasons stated in an earlier case: There is a certain Alice-in-Wonderland quality to the argument that the Legislature violated the Ex Post Facto Clause of the U.S. and Michigan Constitutions, US Const art I, 10; Const 1963, art 1, 10, when it provided that [sentencing] credits that were earned-but-not-applied when a juvenile offender was serving a life sentence still cannot be applied when that offender is resentenced to a lesser term-of-years sentence. Credits not applied before, credits not applied now, lesser term-of-years sentence and yet this is somehow a change in the law that disadvantages the juvenile offender? [People v Jarrett, unpublished opinion of the Court of Appeals, issued August 16, 2018 (Docket No. 338986) (Swartzle, P.J. concurring).] I offer a few additional comments on the issue of sentencing credits and the Ex Post Facto Clause. Given the various parties in the cases discussed below, for ease of reference, I use the -1-
terms juvenile lifer or defendant to refer to prisoners subject to MCL 769.25a(6), and the term Attorney General to refer to the parties representing the prosecutors or state. Article I, 10, of the federal Constitution prohibits a state from passing any ex post facto Law. Similarly, article 1, 10 of Michigan s Constitution of 1963 prohibits the state from enacting any ex post facto law. Michigan s provision is coextensive with its federal counterpart. People v Callon, 256 Mich App 312, 317; 662 NW2d 501 (2003). There are several types of ex-post-facto laws, and the one pertinent here is a law that makes more burdensome the punishment for a crime, after its commission. Dobbert v Florida, 432 US 282, 292; 97 S Ct 2290; 53 L Ed 2d 344 (1977) (cleaned up). As the federal Supreme Court explained in Dobbert, It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law. Id. at 294. There are now two published decisions by appellate courts holding that the Michigan Legislature violated the Ex Post Facto Clause by enacting MCL 769.25a(6). See Hill v Snyder, 900 F3d 260 (CA 6, 2018); People v Wiley, Mich App (2018) (Docket Nos. 336898, 338870); slip op at 2, 20. The statutory provision applies to those juvenile lifers who must be resentenced under Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, US ; 136 S Ct 718; 193 L Ed 2d 599 (2016), and for whom the prosecutor has decided to seek a term of years under subsection (4) rather than reimposition of life without parole. The provision states, 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. MCL 769.25a(6). The Hill and Wiley courts held that the statute disadvantaged those juvenile lifers who were resentenced to a term of years by eliminating sentencing credits that could be used to reduce their now-term sentences. Hill, 900 F3d at 269; Wiley, slip op at 14, 19-20 (noting that the reduction in the sentence would result from shortening the time a defendant would become eligible for parole). The Attorney General has made a plausible argument that, under Michigan s sentencing laws, juvenile lifers could not accumulate sentencing credits while serving a life sentence, let alone have them unconstitutionally eliminated upon resentencing. But, setting this aside and assuming arguendo that juvenile lifers could earn and accumulate sentencing credits, the Hill and Wiley decisions still violate at least two fundamental tenets of our ex-post-facto jurisprudence: 1. The new law must be considered in toto to determine whether it results in more severe punishment. Dobbert, 432 US at 294; see also Weaver v Graham, 450 US 24, 37-39; 101 S Ct 960; 67 L Ed 2d 17 (1981) (Rehnquist, J, concurring in the judgment). 2. The new law must be compared to the prior law actually in effect at the time, even if that prior law is later determined to be unconstitutional. Dobbert, 432 US at 297-298; see also Ruhlman v Brunsman, 664 F3d 615, 621-622 (CA6, 2011). -2-
In Toto v. In Isolation. When faced with an ex-post-facto claim that the new statute is more burdensome than the old one, a court must compare the two statutory procedures in toto to determine if the new may be fairly characterized as more onerous. Dobbert, 432 US at 294. As then-justice Rehnquist explained, the set of policies put in place by the new statute should be viewed as a total package. Weaver, 450 US at 38 (Rehnquist, J, concurring in the judgment); see also United States v Anderson, 61 F3d 1290, 1303 (CA 7, 1995); Cromwell v US Parole Comm n, 724 F2d 1406, 1409 (CA 3, 1984). This makes sense, as with almost any statutory change, there may be some aspect of the new statute that, viewed myopically in isolation, could be described as more onerous than the prior one. Our ex-post-facto jurisprudence does not require that the criminal defendant benefit from each policy change. Rather, considered in toto, as a total package, the new statute must not be more onerous than the one it replaced. The Hill and Wiley courts did not consider MCL 769.25a in toto, nor did they even consider subsection (6) in toto. Rather, they focused solely on whether, today and in the future, the sentencing credits purportedly earned by a juvenile lifer would now have some sentencereduction value when that defendant was resentenced to a term of years. Yet, by ignoring the tenet to consider the statutory change in toto, the Hill and Wiley courts have created a rather unsound standard. By their logic, there would be an ex-post-facto violation if a statute eliminated sentencing credits altogether, but at the same time (though in another provision) required that a trial court impose a new sentence for each impacted defendant that was less than the original sentence as modified by the prior sentencing credits. The new sentence would necessarily be less onerous than the prior one, and yet, as I read Hill and Wiley, those decisions would support a finding that there was an ex-post-facto violation nonetheless. Defendant remains guilty of first-degree murder, but rather than serving life without parole, under MCL 769.25a, he now has a term of imprisonment of 25 to 60 years with credit for time served, and any sentencing credits earned in the past would have precisely the same sentence-reduction value today and in the future nil. A prison term of 25-60 years with credit for time served is less onerous than a sentence of life without parole, regardless of any sentencing credits. Thus, on balance, MCL 769.25a provides a clear and unequivocal reduction in the quantum of punishment for this and similar defendants. Dobbert, 432 US at 294. Defendant cannot demonstrate under any scenario that retroactive application of MCL 769.25a will result in a longer period of incarceration than under the earlier provisions that governed his conviction and sentence. Garner v Jones, 529 US 244, 255; 120 S Ct 1362; 146 L Ed 2d 236 (2000). Ex Post Facto, Not Ex Post Hypothetico. Compounding their error, the Hill and Wiley courts both rely upon the presumption that the sentencing credits would have some value when earned had the juvenile-lifer defendant not been serving a life sentence. Hill, 900 F3d at 268; Wiley, slip op at 17, 19. The point is conceded but irrelevant. The punishment under the new law must be compared with something and not in a vacuum, and as our jurisprudence makes clear, the something is the actual prior punishment imposed for the criminal act, not the punishment that should have or could have been imposed for that criminal act. Remember, it is an Ex Post Facto Clause that we are expounding, not an Ex Post Hypothetico Clause. -3-
As this Court has explained, The critical question is whether the law changes the legal consequences of acts completed before its effective date. Callon, 256 Mich App at 318 (cleaned up). In answering the question, courts must identify the operative acts as well as the legal consequences, determine whether the law changes the latter, and, if so, whether to the defendant s detriment or benefit? Here, the operative act is the first-degree murder, and the legal consequences include the sentence of life without parole as well as the value, if any, of sentencing credits to that life sentence. If the change in the law does not make the legal consequences more onerous, then there can be no ex-post-facto violation. When defendant in the present case murdered his victim, when he was charged, convicted, and sentenced to life without parole for that murder, and when he earned each sentencing credit while serving that life sentence, defendant knew (actually or constructively) that the credits had no value to him for purposes of reducing his sentence. The possibility of a life-without-parole sentence for first degree murder is an operative fact that put defendant on reasonable notice that if he committed that crime and received that sentence, then any sentencing credits he might earn while serving that sentence would have no sentence-reduction value. Dobbert, 432 US at 298; Ruhlman, 664 F3d at 622. The subsequent Miller and Montgomery decisions finding that life sentences for juveniles are unconstitutional in certain circumstances do not negate [the] existence of the life sentences that were actually prescribed, imposed, and partially served. Ruhlman, 664 F3d at 621. Hill and Wiley cite decisions where a state changed a sentencing-credit scheme in violation of the Ex Post Facto Clause. See Lynce v Mathis, 519 US 433, 445-446; 117 S Ct 891; 137 L Ed 2d 63 (1997); Weaver, 450 US at 35-36. Yet, these cases involved prisoners who had earned credits that could actually be used to reduce an existing term-of-years sentence or move up a parole-eligibility date. See Lynce, 519 US at 435-436; Weaver, 450 US at 25-27. In other words, the credits when earned had actual value to the prisoners in those cases, and subsequent legislation lessened or eliminated that actual value, thereby effectively increasing the quantum of punishment. To the contrary here, the sentencing credits had no sentence-reduction value when earned by a defendant convicted of first-degree murder and sentenced to life without parole. Finally, both Hill and Wiley also cite our Supreme Court s decision in Moore v Buchko, 379 Mich 624; 154 NW2d 437 (1967), as further support for their holdings. Yet, this is another instance of the wrong comparison being made. There was no majority opinion in Moore, so its value as binding precedent is unclear. But, even setting that aspect aside, the prisoner in Moore had his conviction changed from first-degree murder to second-degree murder, and his corresponding sentence was changed to a term of years. Id. at 628-629. Thus, it was legally determined that the prisoner had not, in fact, committed first-degree murder, but rather had, in fact, committed second-degree murder. When he committed the criminal act, the sentence for second-degree murder was a term of years, and any time served and credits earned could be used to lessen that term of punishment. See id. at 629. In the present case, defendant remains convicted for first-degree murder, and everyone agrees that when he committed the act and was sentenced to life without parole, sentencing credits could not be used to lessen that punishment. Moore is simply inapposite. -4-
Accordingly, were we writing on a clean slate, I would hold that MCL 769.25a(6) does not violate the Ex Post Facto Clause. The slate is not clean, however, and therefore on this point I concur only in the judgment. /s/ Brock A. Swartzle -5-