UNPUBLISHED

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 U.S. 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.

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:

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 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:

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. 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:

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-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:

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 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 N.W.2d 541 (2011).

"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 N.W.2d 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:

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:

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 N.W.2d 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 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 N.W.2d 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

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 N.W.2d 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 N.W.2d 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 N.W.2d 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 U.S. 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 N.W.2d 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 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 N.W.2d 440 (1983), overruled in part and on other grounds by People v Milbourn, 453 Mich. 630, 644; 461 N.W.2d 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:

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

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 N.W.2d 120 (2010).

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