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On order of the Court, the application for leave to appeal the July 20, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the September 12, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the January 16, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motions for appointment of appellate counsel, for immediate discharge, to present evidence in support of motion for immediate discharge, for immediate release, and to amend additional issue are DENIED.

On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the February 5, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the application for leave to appeal the May 10, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

On order of the Court, the motions to file a reply brief are GRANTED. The application for leave to appeal the September 12, 2017 judgment of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE Section II of the Court of Appeals opinion, and we REMAND this case to the Court of Appeals for reconsideration of its standing analysis. On remand, the Court of Appeals should consider whether the terms "child" and "beneficiary" in MCL 700.1105 are modified by the phrase "and any other person that has a property right in or claim against a trust estate." If so, then the Court of Appeals shall consider whether Cathy Deutchman is an "interested person" under this reading of the statute. The Court of Appeals may also consider the arguments made in this Court by the Probate and Estate Planning Section of the State Bar of Michigan, including that Cathy Deutchman has standing in light of MCR 5.125(C)(33)(g) and MCL 700.7603(2) and is a present (not contingent) beneficiary of the trust. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining question presented should be reviewed by this Court.

On order of the Chief Justice, the motion of plaintiff-appellee to extend the time for filing her answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before August 1, 2018.

On order of the Chief Justice, the motion of defendant-appellant to extend the time for filing her supplemental brief is GRANTED. The supplemental brief will be accepted as timely filed if submitted on or before July 30, 2018.

On order of the Chief Justice, the motion of defendant-appellant to extend the time for filing her supplemental brief is GRANTED. The supplemental brief will be accepted as timely filed if submitted on or before July 9, 2018.

On order of the Court, the motion for immediate consideration is GRANTED. The motion to stay the effect of the Court of Appeals judgment and order is considered, and it is DENIED. The application for leave to appeal the June 7, 2018 judgment and order of the Court of Appeals remains pending.

BOONSTRA, J. Defendant Orchard Hiltz & McCliment, Inc. (OHM) appeals by right the trial court's order dismissing this case, which plaintiff, the Estate of Michael Koch, filed after Michael was killed in an explosion at the village of Dexter's (Dexter) wastewater treatment plant. OHM was Dexter's engineer for an improvement project involving the wastewater treatment plant. OHM filed a cross-complaint seeking indemnity from defendant-contractor A.Z. Shmina, Inc., and a third-party complaint seeking indemnity from subcontractor Platinum Mechanical, Inc. The parties stipulated to dismissal of the case after the trial court denied OHM's motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) and granted Shmina's and Platinum's motions for summary disposition under MCR 2.116(C)(10). We affirm the trial court's denial of summary disposition in favor of OHM. We vacate the trial court's grant of summary disposition in favor of Shmina and Platinum, and we remand to the trial court for further proceedings consistent with this opinion. I. PERTINENT FACTS AND PROCEDURAL HISTORY OHM initially contracted with Dexter in September 2011 to design upgrades to the sludge-handling process at Dexter's wastewater treatment plant. The services included replacing digester tank lids that had exceeded their design life. On June 4, 2012, OHM again contracted with Dexter for services including "contract administration, construction engineering, construction observation, and construction staking." OHM's contract incorporated a provision relieving it of responsibility for job-site safety. Dexter hired Shmina in October 2012 as the contractor to improve the digester and sludge storage tanks. Dexter's contract with Shmina included general and supplementary terms containing indemnification provisions. Later in October 2012, Shmina subcontracted with Platinum, which agreed to provide labor and materials for digester lid demolition and installation. Platinum's contract incorporated the general, special, and supplementary terms of Shmina's contract with Dexter. In April 2013, Platinum awarded a subcontract to Regal Rigging & Demolition, calling for Regal to demolish, remove, and haul away two digester tank lids. According to Jeremy Cook, Platinum's job foreman, there were weekly progress meetings in OHM's job trailer. Cook stated that Chris Nastally of OHM discussed "anything that had to do with that job" at the meetings, including job safety. Meeting minutes indicated that a progress meeting was held on April 11, 2013, and that Nastally, Sherry Wright, and Rhett Gronevelt of OHM; Cook and Kenneth Coon of Platinum; John Franklin of Shmina; and Jeff LaFave of Regal were in attendance. The minutes indicated that Regal planned to start demolishing the digester lids on April 12 and that the primary lid would be removed first. The minutes also indicated that the only "hot" work would be to cut holes in the lids and pull them out. Coon testified that at the meeting, Regal was instructed that it could only cut holes in the primary digester for rigging purposes and "[t]here was to be no other cutting on that job site whatsoever." Coon stated that anyone on the job site should have known that there should be no cutting torches on the secondary digester. On April 22, 2013, the secondary digester exploded, resulting in Koch's death. Wright, an environmental engineer, testified that she was on the site the week before the explosion because Nastally was on vacation. Wright testified that on the morning of the explosion, she walked the site with Nastally, talked about the areas that had been worked on, and told Nastally that the secondary digester still contained sludge. Franklin, Shmina's project supervisor and site safety officer, testified that the primary digester had been cleaned and purged. Franklin also testified that OHM, Platinum, and Nastally would have known that only one digester could be worked on at a time. According to Franklin, David McBride of Regal began cutting the side beams on the secondary digester tank at around 10:00 a.m. or 10:30 a.m., and Franklin was concerned about the methane in the digester. Cook testified that Franklin approached him at around 10:00 a.m. and told him that "the guys from Regal [were] doing some hot work and he was worried that they were blowing sparks on the roof ...." Cook stated that he approached McBride, told him that he was not supposed to be working on the secondary digester, and specifically mentioned that there could be methane gas. Cook testified that he did not see McBride cutting again that day. However, Franklin testified that he saw McBride again cutting at around 1:00 p.m. or 1:30 p.m. on the roof line. According to Franklin, he went onto the roof and told McBride to stop working and that it was dangerous to work there. Franklin stated that McBride shut off his cutting torch and walked over to the primary digester, at which point Franklin left to have a conversation with Cook. McBride testified that "somebody" told him to cut the bolts with a torch and that if someone had told him to stop cutting or to cut in a different location, he would have moved. Nastally testified that he was on the roof for about four minutes before the explosion. Nastally stated that if he was looking at someone who was cutting, he would have known they were cutting, but he was not paying attention to whether there were sparks. When asked whether he knew that the tanks contained methane gas when they had sludge in them, Nastally testified, "I guess I never thought about it." Nastally also testified that it was not his responsibility to know whether there was methane gas or to make sure the digesters did not explode. Nastally testified that he took a couple of pictures and then responded to an e-mail on his phone, which he was looking down at when the explosion occurred. McBride testified that in one of the photographs Nastally had taken, he can be seen cutting the center bolts of the digester, that he had cut about one-half of the bolts, and that it took him about five minutes to cut each bolt. McBride testified that when he is cutting, he creates sparks, smoke, a loud noise, and a burnt metal smell. Wright testified that if she had been standing where Nastally had been standing when he took the photograph, she would have been concerned for the safety of everyone in the area, and that anyone on-site should have informed Franklin about McBride's activities. The estate sued Shmina and OHM, alleging in pertinent part that Dexter had warned Shmina and OHM not to work on any digester until it was emptied and cleaned to eliminate methane hazards, that the secondary digester had not been emptied, that Shmina and OHM knew the secondary digester still contained sludge, and that McBride was photographed cutting bolts on the secondary digester within minutes of the explosion. The estate alleged that McBride's cutting torch ignited methane in the secondary digester, which launched the lid into the air and caused Koch's death. OHM filed a cross-claim against Shmina, alleging in pertinent part that Shmina had breached its contract with OHM by refusing to indemnify and defend OHM against the Estate's complaint and by failing to purchase project insurance that would have protected OHM from claims against it. OHM also filed a third-party complaint against Platinum, in which OHM made the same allegations. OHM moved for summary disposition under MCR 2.116(C)(10) against Platinum and Shmina, alleging that OHM was an intended third-party beneficiary of Platinum's and Shmina's contracts with Dexter and that Platinum and Shmina were required to indemnify, defend, and hold harmless OHM. In response, Platinum asserted that the contract's general and supplementary provisions conflicted, creating an ambiguous agreement that the trial court should construe against OHM. Shmina responded that OHM could not reasonably observe practices that its engineers knew to be dangerous and do nothing. OHM replied that the parties' contracts required them to defend and indemnify OHM regardless of the cause of the accident and that the contracts' general and supplementary provisions did not conflict. At an April 22, 2015 motion hearing, the trial court asked counsel if they were familiar with MCL 691.991, also known as the indemnity-invalidating act (the act), which no party had cited. The trial court then read MCL 691.991. OHM argued that it was not a public entity under the statute. The trial court ultimately denied OHM's motion for summary disposition, ruling that MCL 691.991 was clear and prohibited OHM from seeking indemnification for its own negligence. The trial court subsequently denied OHM's motion for reconsideration and reaffirmed its determination that MCL 691.991 applied retroactively. The court also stated, as an alternative basis for its denial of OHM's motion for summary disposition, that the internally inconsistent nature of the indemnification clauses at issue created an ambiguity, and it accepted Shmina's position that an express indemnity contract should be construed strictly against the drafter and the indemnitee. Platinum and Shmina subsequently filed motions for summary disposition under MCR 2.116(C)(10), alleging that the indemnification agreements were void or precluded by MCL 691.991. Shmina argued that any indemnification would be indemnify OHM for its own negligence. In response, OHM argued that it was not responsible for supervising or controlling construction, that the statute did not apply to contracts between private entities, and that the statute allowed indemnification as long as no party was held liable for more than its proportionate share of fault. The trial court summarized the question as whether MCL 691.991 eliminated or limited indemnity provisions in public contracts. The trial court granted summary disposition in favor of Platinum and Shmina on the basis that MCL 691.991 precluded indemnity and the parties' contractual provisions were therefore void and could not be severed because the contracts provided more indemnification than the statute allowed. The parties then settled their claims with the estate and filed a stipulated order to dismiss the case. After oral argument, this Court, on its own motion, ordered the parties to file supplemental briefs on the issue of the retroactive application of MCL 691.991(2). Because resolution of that issue disposes of the case before us, we address that issue first. II. RETROACTIVITY OF MCL 691.991(2) We hold that MCL 691.991(2) is subject to prospective application only and that the trial court therefore erred by granting summary disposition in favor of Platinum and Shmina regarding their obligation to indemnify OHM. This Court reviews de novo issues of statutory interpretation, Miller-Davis Co. v. Ahrens Constr., Inc. , 495 Mich. 161, 172, 848 N.W.2d 95 (2014), and reviews de novo a court's decision on a motion for summary disposition, Maiden v. Rozwood , 461 Mich. 109, 118, 597 N.W.2d 817 (1999). A party is entitled to summary disposition under MCR 2.116(C)(10) if "there is no genuine issue as to any material fact, and the moving party is entitled to judgment ... as a matter of law." The trial court must consider all the documentary evidence in the light most favorable to the nonmoving party. Maiden , 461 Mich. at 120, 597 N.W.2d 817 ; MCR 2.116(G)(5). A genuine issue of material fact exists if, when viewing the record in the light most favorable to the nonmoving party, reasonable minds could differ on the issue. Gorman v. American Honda Motor Co., Inc. , 302 Mich. App. 113, 116, 839 N.W.2d 223 (2013). When interpreting a statute, this Court's goal is to give effect to the intent of the Legislature. United States Fidelity & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing) , 484 Mich. 1, 13, 795 N.W.2d 101 (2009). The language of the statute itself is the most reliable indicator of the Legislature's intent. Id . If the statutory language is unambiguous, this Court must enforce the statute as written. Id . We read and understand statutory language in its grammatical context unless the language indicates a different intention. Id . "An indemnity contract creates a direct, primary liability between the indemnitor and the indemnitee that is original and independent of any other obligation." Miller-Davis , 495 Mich. at 173, 848 N.W.2d 95. Parties have broad discretion to negotiate such contracts. Id . However, MCL 691.991(2) provides that in any contract for the maintenance or demolition of infrastructure, a public entity shall not require a contractor to indemnify the public entity for any amount greater than the contractor's degree of fault: When entering into a contract with a Michigan-licensed ... professional engineer ... for the design of a building, ... or other infrastructure, ... or a contract with a contractor for the construction, alteration, repair, or maintenance of any such improvement, including moving, demolition, and excavating connected therewith, a public entity shall not require the ... professional engineer ... or the contractor to defend the public entity or any other party from claims, or to assume any liability or indemnify the public entity or any other party for any amount greater than the degree of fault of the ... professional engineer ... or the contractor and that of his or her respective subconsultants or subcontractors. A contract provision executed in violation of this section is against public policy and is void and unenforceable. We agree that application of MCL 691.991(2) would compel the result reached by the trial court. But in this case, the parties entered into and executed their respective contracts in 2011 and 2012. MCL 691.991(2) became effective on March 1, 2013, and the digester exploded on April 22, 2013. Accordingly, the contracts pertinent to this dispute were entered into before the effective date of the statute. The question therefore becomes whether MCL 691.991(2) may be applied retroactively. Statutes are presumed to operate prospectively unless "the contrary intent [of the Legislature] is clearly manifested." See Frank W. Lynch & Co. v. Flex Technologies, Inc. , 463 Mich. 578, 583, 624 N.W.2d 180 (2001). "This is especially true if retroactive application of a statute would impair vested rights, create a new obligation and impose a new duty, or attach a disability with respect to past transactions." Id. See also id . at 588, 624 N.W.2d 180 (holding that a statute concerning sales commission payments could not be applied retroactively because retroactive application would substantially alter the nature of agreements that were entered into before the act's effective date). This Court has held that a pre-2013 version of the indemnity-invalidating act should be given retroactive effect, at least when the negligent act occurred after the effective date of the act. See Brda v. Chrysler Corp. , 50 Mich. App. 332, 335-336, 213 N.W.2d 295 (1973) ; cf. Blazic v. Ford Motor Co. , 15 Mich. App. 377, 166 N.W.2d 636 (1968) (holding that the act did not apply when the negligent act occurred before the effective date). Indeed, it was Brda on which the trial court relied in this case when it concluded that MCL 691.991(2) was retroactively applicable. However, the act, before its 2013 amendment, did not contain any of the language now found in MCL 661.991(2). Rather, the entirety of the pre-2013 act read: A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating connected therewith, purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, is against public policy and is void and unenforceable. [ MCL 691.991, as enacted by 1966 PA 165 (before amendment by 2012 PA 468, effective March 1, 2013).] This language closely mirrors the postamendment language of MCL 691.991(1) : In a contract for the design, construction, alteration, repair, or maintenance of a building, a structure, an appurtenance, an appliance, a highway, road, bridge, water line, sewer line, or other infrastructure, or any other improvement to real property, including moving, demolition, and excavating connected therewith, a provision purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, is against public policy and is void and unenforceable. Both the pre-2013 act and MCL 691.991(1) of the current act prohibit a general contractor from requiring its subcontractors to indemnify it for its sole negligence. See Miller-Davis , 495 Mich. at 173, 848 N.W.2d 95 ; Robertson v. Swindell-Dressler Co. , 82 Mich. App. 382, 389, 267 N.W.2d 131 (1978). By contrast, MCL 691.991(2), which took effect in 2013, concerns the issue at hand-the extent to which a public entity may require a general contractor or subcontractor to indemnify it. And MCL 691.991(2) uses substantially different language than the preamendment statute and the current MCL 691.991(1). MCL 691.991(1) refers to sole-negligence indemnification clauses in contracts in an essentially timeless manner-if a contract exists with a sole-negligence indemnification provision, that provision is void and unenforceable. By contrast, MCL 691.991(2) speaks to contract formation in three places: it provides that "[w]hen entering into a contract," a public entity "shall not require" a general contractor to indemnify it beyond the general contractor's or its subcontractors' degree of fault. And "[a] contract provision executed in violation of this section is against public policy and is void and unenforceable." (Emphasis added.) The Legislature's use of different terms suggests different meanings. United States Fidelity Ins. , 484 Mich. at 14, 795 N.W.2d 101 (2009). Further, our Supreme Court has discussed "two signals" that indicate the Legislature's intent that a statute be applied prospectively: the first is that the "Legislature included no express language regarding retroactivity," and the second is that the statute imposes liability for failing to comply with its provisions. Frank W. Lynch , 463 Mich. at 583-584, 624 N.W.2d 180. The Legislature knows how to make clear, through express language, its intention that a statute operate retroactively. Id . at 584, 624 N.W.2d 180. And it is impossible for a party to comply with a statute's provisions before that statute's existence. Id . Both of those signals are present here. MCL 691.991(2) contains no express language concerning retroactivity. In fact, the 2013 amendment specified that "this amendatory act takes effect March 1, 2013." 2012 PA 468. And MCL 691.991(2) states that "[a] contract provision executed in violation of this section is against public policy and is void and unenforceable." (Emphasis added.) Before March 1, 2013, MCL 691.991(2) did not exist, and contracts could not be executed in violation of it. See Frank W. Lynch , 463 Mich. at 584, 624 N.W.2d 180 (in which the Supreme Court, referring to the sales representatives' commissions act (SRCA), MCL 600.2961, stated: "Further indicating that the Legislature intended prospective application of the SRCA is the fact that subsection 5 of the SRCA provides for liability if the principal 'fails to comply with this section.' Because the SRCA did not exist at the time that the instant dispute arose, it would have been impossible for defendants to 'comply' with its provisions. Accordingly, this language supports a conclusion that the Legislature intended that the SRCA operate prospectively only."). We conclude that the language of the amendatory act does not clearly manifest the Legislature's intent that MCL 691.991(2) be applied retroactively to contracts entered into and executed before the amendment's effective date. See id. at 583, 624 N.W.2d 180. The trial court therefore erred by applying MCL 691.991(2) to the claims before it. Accordingly, we vacate the trial court's grant of summary disposition in favor of Shmina and Platinum. The trial court erred when it held that MCL 691.991(2) rendered void and unenforceable the indemnification provisions at issue, and we remand for reinstatement of OHM's indemnity claims. III. CONTRACTUAL AMBIGUITY Shmina argues that the trial court's determination that the contracts were ambiguous provides an alternative basis for granting summary disposition in its favor. More specifically, Shmina contends that the contractual ambiguity must be construed against OHM as the drafter of the contracts and that, therefore, this Court should hold that the broader indemnification provision of the supplementary conditions may not be enforced by OHM. OHM argues that the contractual provisions are not ambiguous because they are complementary. We agree with the trial court that the contractual indemnification provisions are ambiguous, and for that reason, we affirm the trial court's denial of summary disposition in favor of OHM. However, the trial court did not rely on the contractual ambiguity as a basis for granting summary disposition in favor of Shmina or Platinum, and we decline to do so in the first instance. Rather, we conclude that the ambiguity presents a genuine issue of material fact, requiring a remand to the trial court. This Court reviews de novo the proper interpretation of a contract, Miller-Davis , 495 Mich. at 172, 848 N.W.2d 95, and the legal effect of a contractual clause, Quality Prods. & Concepts Co. v. Nagel Precision, Inc. , 469 Mich. 362, 369, 666 N.W.2d 251 (2003). If a contract's language is unambiguous, "we construe and enforce the contract as written." Quality Prods. , 469 Mich. at 375. A contract is ambiguous when its provisions irreconcilably conflict. Klapp v. United Ins. Group Agency, Inc. , 468 Mich. 459, 467, 663 N.W.2d 447 (2003). A court may not ignore provisions of a contract in order to avoid finding an ambiguity. Id . Generally, "the meaning of an ambiguous contract is a question of fact that must be decided by the jury." Id . at 469, 663 N.W.2d 447. Dexter's contract with Shmina expressly incorporated general conditions, supplementary conditions, insurance requirements, specifications, and drawings. Platinum's contract with Dexter included Platinum's contractual provisions as well as an incorporation of Shmina's contract with Dexter. When a contract incorporates a writing by reference, it becomes part of the contract, and courts must construe the two documents as a whole. Whittlesey v. Herbrand Co. , 217 Mich. 625, 627, 187 N.W. 279 (1922). The general conditions in Article 6, ¶ 6.20(A) of the Standard General Conditions of the Construction Contract between Dexter and Shmina provided, in pertinent part, as follows: To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer ... against all claims, costs, losses, and damages ... arising out of or relating to the performance of the Work ... but only to the extent caused by any negligent act or omission of Contractor, any Subcontractor, ... or any individual or entity directly or indirectly employed by any of them .... [Emphasis added.] Paragraph 6.20(C)(2) also provided that "[t]he indemnification obligations of the Contractor under Paragraph 6.20.A shall not extend to the liability of the Engineer ... arising out of ... giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage." The Supplementary General Conditions "amend[ed] or supplement[ed] the Standard General Conditions of the Construction Contract ... as indicated below. All provisions which are not so amended or supplemented remain in full force and effect ." The supplementary conditions deleted ¶¶ 5.04 to 5.10 from the General Conditions and added to Article 5 language that "[t]he Insurance Specifications, Section 00 80 00, of this Contract, following the Supplementary Conditions, shall be added to Article 5 of the General Conditions, regarding insurance requirements." The insurance specifications provided in § 00 80 00, provided as part of the supplementary conditions, required Shmina to indemnify OHM as follows: The CONTRACTOR agrees to indemnify, defend, and hold harmless the OWNER and ENGINEER, their consultants, agents, and employees, from and against all loss or expense (including costs and attorney's fees) by reason of liability imposed by law upon the OWNER and ENGINEER, their consultants, agents, and employees for all damages ... damages because of bodily injury, including death at any time resulting therefrom, arising out of or in consequence of the performance of this work, whether such injuries to persons or damage to property is due, or claimed to be due, to the negligence of the CONTRACTOR, his subcontractors, the OWNER, the ENGINEER, and their consultants, agents, and employees , except only such injury or damage as shall have been occasioned by the sole negligence of the OWNER, the ENGINEER, and their agents and/or consultants. [Emphasis added; formatting omitted.] Because the supplementary conditions did not modify ¶ 6.20, that provision remained in full force and effect. These provisions irreconcilably conflict because it is not possible for Shmina or Platinum to both indemnify OHM for (1) all damages, regardless of who caused them, under § 00 80 00, and (2) some of the damages, only if Shmina or Platinum or its subcontractors caused them, under Article 6.20. Therefore, the trial court did not err by holding that these provisions in Shmina's and Platinum's contracts were ambiguous. But the trial court did not grant summary disposition in favor of Shmina or Platinum on this basis. The trial court only relied on the contractual ambiguity as an alternative basis for denying OHM's motion for summary disposition. And we conclude that, because of the contractual ambiguity, it was appropriate for the trial court to decline to grant summary disposition in favor of OHM. However, it would have been inappropriate, absent consideration of relevant extrinsic evidence and other means and rules of contract interpretation, for the trial court to have relied on the contractual ambiguity as a basis for granting summary disposition in favor of Shmina or Platinum, and the trial court did not in fact do so. Generally, "the meaning of an ambiguous contract is a question of fact that must be decided by the jury." Klapp , 468 Mich. at 469, 663 N.W.2d 447. The relevance, if any, of the rule of contra proferentem that Shmina asks us to employ, is generally for the jury, not the trial court (or this Court), to consider, and then only in certain circumstances. According to Klapp : In interpreting a contract whose language is ambiguous, the jury should also consider that ambiguities are to be construed against the drafter of the contract. This is known as the rule of contra proferentem. However, this rule is only to be applied if all conventional means of contract interpretation, including the consideration of relevant extrinsic evidence, have left the jury unable to determine what the parties intended their contract to mean. ... In other words, if a contract is ambiguous regarding whether a term means "a" or "b," but relevant extrinsic evidence leads the jury to conclude that the parties intended the term to mean "b," then the term should be interpreted to mean "b," even though construing the document in the nondrafter's favor pursuant to an application of the rule of contra proferentem would produce an interpretation of the term as "a." However, if the language of a contract is ambiguous, and the jury remains unable to determine what the parties intended after considering all relevant extrinsic evidence, the jury should only then find in favor of the nondrafter of the contract pursuant to the rule of contra proferentem . [ Id. at 470-472 (citations omitted) (emphasis added).] Particularly given that the trial court did not grant summary disposition in favor of Shmina or Platinum on this basis, and did not articulate any consideration of relevant extrinsic evidence or other means and rules of contract interpretation, we decline to introduce and apply the contra proferentem canon of construction at this juncture of the proceedings. IV. UNRESOLVED CLAIMS Finally, OHM argues that the trial court improperly failed to resolve its cross-claims that Shmina and Platinum breached their contracts by failing to purchase sufficient project liability insurance. We conclude that OHM has waived this issue by stipulating to dismissal of the case. "A stipulation is an agreement, admission, or concession made by the parties in a legal action with regard to a matter related to the case." People v. Metamora Water Serv., Inc. , 276 Mich. App. 376, 385, 741 N.W.2d 61 (2007). A stipulation is construed in the same manner as a contract. Bd. of Co. Rd. Comm'rs for Eaton Co unty v. Schultz , 205 Mich. App. 371, 379, 521 N.W.2d 847 (1994). When a stipulation is unambiguous, a court will enforce it as written. See id . at 380, 521 N.W.2d 847. "[A] waiver is a voluntary and intentional abandonment of a known right." Quality Prods. , 469 Mich. at 374, 666 N.W.2d 251. A party may not appeal an error that the party created. Clohset v. No Name Corp. (On Remand) , 302 Mich. App. 550, 555, 840 N.W.2d 375 (2013). In this case, the parties filed a stipulated order dismissing the case. The order stated that it "resolve[d] the last pending claim and close[d] the case." By signing this stipulation, OHM agreed that there were no additional claims that the trial court should address. We will not allow OHM to appeal an error that OHM itself helped create, and we therefore conclude that OHM has waived this issue by stipulating to dismissal of the case. Affirmed with respect to the trial court's denial of OHM's motion for summary disposition. Vacated with respect to the trial court's grant of summary disposition in favor of Shmina and Platinum. Remanded for reinstatement of OHM's claims for indemnification and further proceedings consistent with this opinion. Because the principal issue in this case came before this Court after the trial court sua sponte raised the application of MCL 691.991(2), because this Court ordered supplemental briefing on the issue on its own motion, and because the issue is of public importance, each party shall bear its own costs. MCR 7.219(A). We do not retain jurisdiction. MARKEY, P.J., and RONAYNE KRAUSE, J., concurred with BOONSTRA, J. The estate did not name Platinum as a defendant because the Worker's Compensation Disability Compensation Act, MCL 418.101 et seq., was the estate's only remedy against Platinum, which was Koch's employer. Although MCL 691.991 was not yet effective on the dates the parties contracted, the alleged negligence giving rise to the accidental explosion occurred after the effective date of the statute. See 2012 PA 468, effective March 1, 2013; Brda v. Chrysler Corp. , 50 Mich.App. 332, 213 N.W.2d 295 (1973). Koch Estate v. A.Z. Shmina, Inc. , unpublished order of the Court of Appeals, entered July 14, 2017 (Docket No. 332583). Platinum subcontracted with Regal on April 17, 2013, but that contract is not pertinent to the issues before us. A contract is generally executed (i.e., brought into its final, legally enforceable form) by signing and delivering it. See Black's Law Dictionary (10th ed.), p. 393 (defining "executed contract"), p. 689 (defining "execute"). The contracts at issue provided that they were effective on the date the last party signed and delivered them, if another date was not specified. Except for Platinum's contract with Regal, which was initiated in 2013, all relevant signature dates and specified effective dates for the contracts and amendments at issue were in 2012. The Standard General Conditions of the Construction Contract was divided into 17 articles. The articles were further divided into numbered "paragraphs." We understand the reference in the Supplementary General Conditions to "Articles 5.04 - 5.10" to refer to ¶¶ 5.04 to 5.10.

MCCORMACK, J. This case presents the question whether the Michigan sentencing guidelines violate a defendant’s Sixth Amendment fundamental right to a jury trial. We conclude that the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US_; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient. That deficiency is the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e., the “mandatory minimum” sentence under Alleyne. To remedy the constitutional violation, we sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. We also strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure. Consistently with the remedy imposed by the United States Supreme Court in United States v Booker, 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d 621 (2005), we hold that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness. Booker, 543 US at 264. To preserve as much as possible the legislative intent in enacting the guidelines, however, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. Id. In this case the defendant’s guidelines minimum sentence range was irrelevant to the upward departure sentence he ultimately received. Accordingly, we hold that he cannot show the prejudice necessary to establish plain error under People v Carines, 460 Mich 750; 597 NW2d 130 (1999), and we affirm his sentence. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The defendant was convicted by a jury of involuntary manslaughter for his wife’s death. At sentencing, defense counsel agreed with scoring OV 3 (physical injury to victim) at 25 points and OV 5 (psychological injury to member of victim’s family) at 15 points; counsel did not mention OV 6 (offender’s intent to kill or injure another individual), for which 10 points were assessed. Counsel did challenge the scoring of OV 9 (number of victims) and OV 10 (exploitation of a vulnerable victim), but both only on the ground that the facts of the case did not support the number of points assessed by a preponderance of the evidence. The trial court felt otherwise and kept the score of both variables at 10 points. With his prior record variable score of 35 points, the defendant’s resulting guidelines minimum sentence range was 43 to 86 months, but the trial court exceeded the guidelines and imposed a minimum sentence of 8 years (96 months) and a maximum sentence of 15 years (180 months, the statutory maximum). As substantial and compelling reasons justifying the departure, the trial court cited that defendant had violated probation orders that forbade him from being where he was when he killed his wife, that he killed his wife in front of their three children as they struggled to stop him from doing so, and that he left the children at home with their mother dead on the floor without concern for their physical or emotional well-being, which were not factors already accounted for in scoring the guidelines. Furthermore, the court said, the extent of the defendant’s prior domestic violence was not considered in the guidelines. The defendant appealed by right in the Court of Appeals, challenging the scoring of the guidelines and the trial court’s decision to exceed the guidelines minimum sentence range. While this case was pending in the Court of Appeals, the United States Supreme Court decided Alleyne, and defense counsel moved to file a supplemental brief challenging the scoring of the guidelines on Alleyne grounds. The Court of Appeals granted that motion. In a published opinion, the Court of Appeals affirmed the defendant’s sentence and rejected his Alleyne challenge to the scoring of guidelines, adhering to its recent decision in People v Herron, 303 Mich App 392; 845 NW2d 533 (2013), which had rejected that same argument. People v Lockridge, 304 Mich App 278, 284; 849 NW2d 388 (2014) (opinion by O’CONNELL, J.). Judge BECKERING and Judge SHAPIRO filed concurring opinions agreeing with Judge O’CONNELL’S lead opinion that the panel was bound by Herron, but disagreeing with the outcome reached in Herron. If not bound by Herron, Judge BECKERING would have held that requiring judicial fact-finding to set the guidelines mandatory minimum sentence range violated Alleyne. Id. at 285 (opinion by BECKERING, P.J.). She would have made the guidelines advisory to cure the constitutional problem. Id. at 286. Judge SHAPIRO would have held that Alleyne only bars requiring judicial fact-finding to set the bottom of the minimum sentence range, so only the bottom of the range need be made advisory to cure the constitutional flaw. Id. at 311, 315-316 (opinion by Shapiro, J.). The defendant filed an application for leave to appeal in this Court. We granted leave to appeal to address the significant constitutional question presented. People v Lockridge, 496 Mich 852 (2014). II. LEGAL BACKGROUND The Sixth Amendment of the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation .... [US Const, Am VI.] The right to a jury trial is a fundamental one, with a long history that dates back to the founding of this country and beyond. Duncan v Louisiana, 391 US 145, 148-154; 88 S Ct 1444; 20 L Ed 2d 491 (1968) (discussing the fundamental nature of the right and its long history). The question presented in this case relates specifically to whether the procedure involved in setting a mandatory sentence infringes a defendant’s Sixth Amendment right to a jury trial. One key to this inquiry is whether the pertinent facts that must be found are an element of the offense or a mere sentencing factor. See, e.g., Jones v United States, 526 US 227, 232; 119 S Ct 1215; 143 L Ed 2d 311 (1999) (“Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.”). The first United States Supreme Court case warranting specific mention here is McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed 2d 67 (1986). In McMillan, the Supreme Court held that the visible possession of a firearm, which the Pennsylvania statute at issue used as a fact increasing the defendant’s mandatory sentence, did not constitute an element of the crimes enumerated in its mandatory sentencing statute. Rather, it “instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt.” Id. at 86. Accordingly, the McMillan Court rejected the defendant’s argument that Pennsylvania’s mandatory minimum sentencing act was unconstitutional. Things began to change dramatically with Jones, however. In that case, the Court held that the fact of whether a victim suffered serious bodily injury, which authorized an increase in the defendant’s sentence from 15 to 25 years, was an element of a federal statute prohibiting carjacking or aiding and abetting carjacking that must be found by a jury. Although Jones was decided on statutory rather than constitutional grounds, the Court concluded that treating the fact of bodily injury as a mere sentencing factor “would raise serious constitutional questions.” Jones, 526 US at 251. Justices Stevens and Scalia wrote concurring opinions in Jones that presaged the constitutional rule that would be established a year later in Apprendi. Id. at 252-253 (Stevens, J., concurring); id. at 253 (Scalia, J., concurring). In Apprendi, the United States Supreme Court announced the general Sixth Amendment principle at issue in this case: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 US at 490 (emphasis added). The Court struck down as unconstitutional a statute that provided for a possible increase in the maximum term of imprisonment from 10 to 20 years if the trial court found, by a preponderance of the evidence, that the defendant “acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” Id. at 469, quoting NJ Stat Ann 2C:44-3(e). The Supreme Court rejected the lower courts’ conclusions that the statute was constitutional because the finding of intent to intimidate was a mere “sentencing factor” under McMillan. Id. at 492. In Harris v United States, 536 US 545, 550; 122 S Ct 2406; 153 L Ed 2d 524 (2002), overruled by Alleyne, the Supreme Court was squarely presented with the question “whether McMillan stands after Apprendi.” A majority held that the Apprendi rule did not bar judicially found facts altering “mandatory minimum” sentences. But notably, only a plurality of the Court joined the portion of Justice Kennedy’s opinion that distinguished Apprendi from McMillan. Id. at 556-568. In his concurring opinion, Justice Breyer wrote that he could not “easily distinguish Apprendi. . . from this case in terms of logic,” but he joined the Court’s judgment only because he could not “yet accept [Ap-prendi’s] rule.” Id. at 569-570 (Breyer, J., concurring in part). The dissenting opinion took notice, observing that “[t]his leaves only a minority of the Court embracing the distinction between McMillan and Apprendi that forms the basis of today’s holding . . . .” Id. at 583 (Thomas, J., dissenting). Next came Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). In that case, the Supreme Court addressed a challenge to the state of Washington’s “determinate” sentencing scheme and observed that “indeterminate sentencing” does not infringe on the power of a jury. Id. at 308. Ultimately, the Blakely Court held the Washington scheme unconstitutional to the extent that it allowed the trial court to impose a sentence greater than the “statutory maximum” sentence authorized by the jury verdict on the basis of the court’s finding that the defendant had acted with “deliberate cruelty.” Id. at 303-304. The Court again emphasized that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. at 303. In Booker, the Supreme Court addressed the application of Apprendi to a “determinate” sentencing scheme similar to Washington’s, the federal sentencing guidelines. Two different majorities of the Court held that the guidelines were unconstitutional under Apprendi and Blakely, Booker, 542 US at 226 (opinion by Stevens, J.), and that the proper remedy for the con stitutional infirmity was to make the guidelines advisory rather than mandatory, id. at 245 (opinion by Breyer, J.). The ripple effects of Apprendi, Blakely, and Booker have been significant in both state and federal courts. See, e.g., Duncan v United States, 552 F3d 442, 445 (CA 6, 2009) (referring to the “Apprendi revolution”). The changes in the law wrought by this new rule led this Court to address whether Michigan’s sentencing guidelines were susceptible to a Sixth Amendment constitutional violation, first in a footnote in People v Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004), and later at greater length in People v Drohan, 475 Mich 140, 146; 715 NW2d 778 (2006). In both Claypool and Drohan, this Court concluded that the Apprendi/Blakely rule did not apply to Michigan’s sentencing scheme at all. This Court reached this conclusion on the basis of its determination that the Apprendi/Blakely rule was inapplicable to our “indeterminate” scheme. We reasoned in part that “the trial court’s power to impose a sentence is always derived from the jury’s verdict” because the jury’s verdict authorized the “statutory maximum” sentence set by statute. Drohan, 475 Mich at 161-162. In Alleyne, the Supreme Court overruled Harris and for the first time concluded that mandatory minimum sentences were equally subject to the Apprendi rule, holding that “a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense.” Alleyne, 570 US at_; 133 S Ct at 2160 (emphasis added). Alleyne, like Harris, involved a statute that provided for a mandatory minimum sentence of five years, but that mandatory minimum increased to seven years if it was determined that the defendant had “brandished” a firearm. The Court con- eluded that there was “no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum,” id. at 2163, but noted that its holding did not restrict fact-finding used to guide judicial discretion in selecting a punishment within the limits fixed by law, id. Justice Breyer concurred separately, explaining that while he “continue [d] to disagree with Apprendi,” he nevertheless believed that it was “highly anomalous to read Apprendi as insisting that juries find sentencing facts that permit a judge to impose a higher sentence while not insisting that juries find sentencing facts that require a judge to impose a higher sentence.” Id. at 2166-2167 (Breyer, J., concurring). III. ANALYSIS A Sixth Amendment challenge presents a question of constitutional law that this Court reviews de novo. Drohan, 475 Mich at 146. The defendant argues that because Alleyne extended the Apprendi rule from statutory maximum sentences to mandatory minimum sentences, Michigan’s sentencing guidelines are no longer immune from that rule. We agree. From Apprendi and its progeny, including Alleyne, we believe the following test provides the proper inquiry for whether a scheme of mandatory minimum sentencing violates the Sixth Amendment: Does that scheme constrain the discretion of the sentencing court by compelling an increase in the mandatory minimum sentence beyond that authorized by the jury’s verdict alone? Michigan’s sentencing guidelines do so to the extent that the floor of the guidelines range compels a trial judge to impose a mandatory minimum sentence beyond that authorized by the jury verdict. Stated differently, to the extent that OVs scored on the basis of facts not admitted by the defendant or necessarily found by the jury verdict increase the floor of the guidelines range, i.e., the defendant’s “mandatory minimum” sentence, that procedure violates the Sixth Amendment. The pertinent language in Alleyne supports this conclusion. “Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant’s ‘expected punishment has increased as a result of the narrowed range’ and ‘the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish.’ ” Alleyne, 570 US at_; 133 S Ct at 2161, quoting Apprendi, 530 US at 522 (Thomas, J., concurring). Similarly, by virtue of the fully scored sentencing guidelines, a judge is required to “impose a higher punishment than he might wish.” Just as the judge’s finding that there was “brandishing” in Alleyne aggravated the penalty in that case by increasing the floor of the range prescribed by law, the OV scoring judges must do as part of our system increases the bottom of the mandatory guidelines range used to set the minimum sentence. In criticizing the Alleyne majority’s extension of the Apprendi rule, Chief Justice Roberts’s dissenting opinion also had language supporting this conclusion. He wrote: Under the rule in place until today, a legislature could tell judges that certain facts carried certain weight, and require the judge to devise a sentence based on that weight—so long as the sentence remained within the range authorized by the jury. Now, in the name of the jury right that formed a barrier between the defendant and the State, the majority has erected a barrier between judges and legislatures, establishing that discretionary sentencing is the domain of judges. Legislatures must keep their respectful distance. [Alleyne, 570 US at_; 133 S Ct at 2170-2171 (Roberts, C.J., dissenting) (emphasis added).] In other words, unrestrained judicial discretion within a broad range is in; legislative constraints on that discretion that increase a sentence (whether minimum or maximum) beyond that authorized by the jury’s verdict are out. In Herron, the Court of Appeals found no constitutional flaw in our sentencing guidelines, reasoning in part that judicial fact-finding in our guidelines scheme is permissible because it is used only to “inform the trial court’s sentencing discretion within the maximum determined by statute and the jury’s verdict.” Herron, 303 Mich App at 403. We reject this analysis because it ignores two key aspects of the Apprendi rule as extended by Alleyne: (1) the fact-finding is used to constrain, not merely inform, the court’s sentencing discretion by increasing the mandatory minimum sentence and (2) because Alleyne now prohibits increasing the minimum as well as the maximum sentence in this manner, it is insufficient to say that the guidelines scheme is constitutional because the maximum is set by statute and authorized by the jury’s verdict. Consider this example: a defendant with no prior record who is convicted of kidnapping, MCL 750.349, a Class A offense, MCL 777.16q, which carries a statutory maximum sentence of life in prison. Assume further that no facts necessary to score any of the OVs are admitted by the defendant or necessarily found by the jury as part of the verdict. Under our sentencing guidelines, that defendant would be subject to a minimum sentence of no less than 21 months (the bottom of the applicable guidelines range) and a maximum sentence of life (the statutory maximum). If this were the end of the road and the trial court were free to sentence the defendant anywhere within this range, we would agree that no Sixth Amendment impediment exists. But there is more. MCL 777.21(1)(a) and MCL 777.22(1) direct courts to score OVs 1 through 4, 7 through 14, 19, and 20 for crimes against a person, a designation that applies to kidnapping, MCL 777.16q. Under this hypothetical situation, a trial court could find facts not found by a jury or admitted by the defendant that could potentially increase the floor of the defendant’s minimum sentence from 21 months to as much as 108 months. MCL 777.62. Those facts are “fact[s] increasing either end of the range” of penalties to which a defendant is exposed, Alleyne, 570 US at_; 133 S Ct at 2160, and therefore the process violates the Sixth Amendment. The example provided by the Blakely Court of what differentiated a constitutionally permissible “indeterminate” sentencing scheme from an impermissible one, which the Drohan Court quoted and the dissent here also quotes, further illustrates this point: In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence—and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury. [Blakely, 542 US at 309.] Michigan’s sentencing scheme is not like the first example, in which a court has unfettered discretion to impose a sentence within a range authorized by the jury’s verdict. Rather, it is more akin to the latter example. Guidelines scored solely on a defendant’s admissions and prior convictions set a baseline minimum sentence (i.e., 10 years in the Blakely example or 21 months in our hypothetical example), with additional time added by aggravating factors (such as possession or use of a gun, as in the Blakely example): the OVs, which are generally scored on the basis of facts found by the court rather than a jury. The sentencing court’s authority to score the OVs is constrained by law. A defendant’s possible minimum sentence is increased as a result of that scoring, and the court is constrained to impose a minimum sentence in conformity with the applicable guidelines range that is increased by the scoring of those OVs. Thus, Michigan does indeed have a system that punishes an offense with a baseline minimum sentence of no less than X months, with the potential for Y months to be added for the use of a gun, Z months to be added for killing a victim, and so forth. This reality could be ignored when Drohan was decided because the Ap-prendi rule applied only to “statutory máximums” and scoring the sentencing guidelines and establishing the guidelines minimum sentence range does not alter the maximum sentence. But that analysis is no longer sustainable in light of Alleyne’s extension of the Ap-prendi rule to minimum sentences. In Drohan, this Court analyzed the evolution of the Apprendi rule and concluded that the “statutory maximum” sentence in Michigan for Apprendi/Blakely purposes is generally the maximum sentence set by the statute setting forth the elements of the offense at issue. Drohan, 475 Mich at 164. Accordingly, because at that time the Apprendi rule only applied to maximum sentences, not mínimums, and judicial fact-finding to set the guidelines range only affected minimum sentences, we held that Michigan’s sentencing guidelines scheme did not violate the Sixth Amendment. On this point, Drohan necessarily relied on Harris’s holding that the Apprendi rule did not apply to minimum sentences. Harris, 536 US at 568. Alleyne changed that. In Alleyne, the United States Supreme Court overruled Harris and held for the first time that the Apprendi rule applied with equal force to minimum sentences. Alleyne, 570 US at_; 133 S Ct at 2155. With minimum sentences now also relevant to the Sixth Amendment analysis, the statutory authority of the court can infringe the constitutional authority of the jury because the guidelines used to set the minimum sentence require a court to increase a defendant’s minimum sentence beyond the minimum sentence authorized by the jury’s verdict alone. To the extent that Drohan asserted that our sentencing scheme is constitutional because the jury verdict always authorizes the maximum sentence provided by law, that analysis is no longer sufficient to complete the constitutional analysis in light of Alleyne-, rather, under Alleyne, the Legislature may not require judicial fact-finding that results in a mandatory increase in either the minimum or maximum sentence beyond the range set by the jury verdict. Therefore, a straightforward application of the language and holding in Alleyne leads to the conclusion that Michigan’s sentencing guidelines scheme violates the Sixth Amendment. The prosecution and amici curiae do not dispute the holding in Alleyne, but instead advance three arguments in an attempt to sidestep it. First, it is asserted that just as we concluded in Drohan, the Apprendi rule (as now extended by Alleyne) does not apply to Michigan’s sentencing scheme because that scheme is “indeterminate.” Second, Michigan’s sentencing guidelines do not violate the Sixth Amendment because the minimum sentences they set merely establish a parole eligibility date rather than an absolute prison release date and there is no constitutional right to parole. Third, the minimum sentence set by the sentencing guidelines is not a “mandatory minimum” sentence for purposes of Al-leyne. For the reasons that follow, we reject each of these arguments. A. MICHIGAN’S “INDETERMINATE” SENTENCING SCHEME The prosecution and the dissent rely primarily on their conclusion that the Apprendi rule does not apply to “indeterminate” sentencing schemes like Michigan’s to dismiss the defendant’s constitutional claim. It is certainly correct that the United States Supreme Court has repeatedly distinguished between “determinate” and “indeterminate” sentencing systems and referred to the latter as not implicating Sixth Amendment concerns and that Alleyne did nothing to alter or undermine that distinction. Because we are bound by the United States Supreme Court’s decisions interpreting the Sixth Amendment such as Apprendi and Al- leyne, however, it is critical to understand exactly what those terms mean in that context rather than in the abstract. And significantly, Michigan’s sentencing scheme is not “indeterminate” as the United States Supreme Court has ever applied that term. In Blakely, in responding to the dissent, the majority stated, without defining its terms, that “indeterminate” sentencing schemes would not violate the Ap-prendi rule. In quoted language relied on heavily by the prosecution and the dissent in this case, the Court asserted: By reversing the judgment below, we are not, as the State would have it, “find[ing] determinate sentencing schemes unconstitutional.” This case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment. . .. Justice O’Connor argues that, because determinate-sentencing schemes involving judicial fact-finding entail less judicial discretion than indeterminate schemes, the constitutionality of the latter implies the constitutionality of the former. This argument is flawed on a number of levels. First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial fact-finding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. [Blakely, 542 US at 308-309 (citations omitted) (emphasis added).] The Blakely dissent, however, identified states with both indeterminate and determinate (as Drohan understood those terms) sentencing schemes as ones that Blakely cast “constitutional doubt” over because they had “guidelines systems.” Id. at 323 (O’Connor, J., dissenting). Michigan was among the states listed. Id. Legal commentators have also noted that the United States Supreme Court has never referred to Michigan’s sentencing scheme as “indeterminate” for constitutional purposes and that Justice O’Connor’s Blakely dissent suggested the opposite; rather, the Court’s focus in discussing “indeterminate” schemes has been on the absence of mandatory constraints placed on a court’s discretion when sentencing a defendant within a range of possible sentences. See Hall, Mandatory Sentencing Guidelines by Any Other Name: When “Indeterminate Structured Sentencing” Violates Blakely v Washington, 57 Drake L Rev 643, 669 & n 139 (2009) (hereinafter, Mandatory Sentencing Guidelines) (stating that “in Blakely, the Supreme Court understood an indeterminate sentencing regime to be one in which the sentencing judge enjoys ‘unfettered discretion’ within statutory and constitutional limits, and that a mandatory sentencing guidelines system, even when used in conjunction with a parole board, is fundamentally inconsistent with this definition of indeterminate sentencing”) (emphasis added); Ball, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment, 109 Colum L Rev 893, 907 (2009) (observing that the United States Supreme Court has used “ ‘indeterminate’ to mean ‘advisory’ and ‘determinate’ to mean ‘binding’ (i.e., determinative of the outcome)”); see also Cunningham v California, 549 US 270, 291-292; 127 S Ct 856; 166 L Ed 2d 856 (2007) (“Merely advisory provisions, recommending but not requiring the selection of particular sentences in response to differing sets of facts . . . would not implicate the Sixth Amendment.”), quoting Booker, 543 US at 233 (quotation marks omitted); Alleyne, 133 S Ct at 2165 (Sotomayor, J., concurring) (observing that the United States Supreme Court has “applied Apprendi to strike down mandatory sentencing systems at the state and federal levels”) (emphasis added). At least one other court has also recognized that the United States Supreme Court has used the term “indeterminate” “imprecisely.” Commonwealth v Yuhasz, 592 Pa 120, 133 n 4; 923 A2d 1111 (2007). And at no time has the Supreme Court specifically defined its use of the term or defined it by reference to Black’s Law Dictionary. Accordingly, the relevant distinction between constitutionally permissible “indeterminate” sentencing schemes and impermissible “determinate” sentencing schemes, as the United States Supreme Court has used those terms, turns not on whether the sentences produced by them contain one or two numbers; rather, it turns on whether judge-found facts are used to curtail judicial sentencing discretion by compelling an increase in the defendant’s punishment. If so, the system violates the Sixth Amendment. Michigan’s sentencing guidelines do just that. Because Michigan’s sentencing scheme is not “indeterminate” as that term has been used by the United States Supreme Court, our sentencing guidelines scheme cannot be exempt from the Apprendi and Alleyne rule on that basis. And the escape hatch that Harris provided for Drohan—that Apprendi applied only to maximum sentences and the statutory máxi-mums in Michigan are set by law and therefore never increased based on judge-found facts—has been sealed by Alleyne. B. NO CONSTITUTIONAL RIGHT TO PAROLE In a permutation of its “indeterminate” sentencing argument, the dissent also contends that Michigan’s sentencing scheme does not violate Alleyne because a defendant’s minimum sentence merely determines when that defendant is eligible for parole consider ation and there is no constitutional entitlement to parole. This argument was not raised by the prosecution, but was advanced instead by the Attorney General in an amicus curiae brief. We have no quarrel with the general proposition that a defendant has no constitutional entitlement to be paroled, as that proposition is well established by Greenholtz v Inmates of Nebraska Penal & Correctional Complex, 442 US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979), but we do not see its relevance here. The right at issue includes the Sixth Amendment right to a jury trial, not just the due-process right to be free of deprivation of one’s liberty that was at issue in Greenholtz. And that right includes the right to have a “jury determination” of all the pertinent facts used in increasing the prescribed range of penalties, including both the minimum and the maximum sentences. The violation of that right occurs well before a defendant even begins serving that sentence. Alleyne, 570 US at_; 133 S Ct at 2160 (noting that “a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense” that must be found by a jury). The failure to have the jury find an element establishing “a distinct and aggravated crime,” id. at_; 133 S Ct at 2163, not the resulting sentence, is the constitutional deficiency, id. at_; 133 S Ct at 2162 (observing that “if a judge were to find a fact that increased the statutory maximum sentence, such a finding would violate the Sixth Amendment, even if the defendant ultimately received a sentence falling within the original sentencing range”) (emphasis added). Accordingly, the assertion that a defendant has no constitutional right to serve less than his or her maximum sentence is entirely correct, but also entirely beside the point. King & Applebaum, Alleyne on the Ground: Factfinding That Limits Eligibility for Probation or Parole Release, 26 Fed Sent Rep 287, 289 (2014) (“The minimum sentence that matters in Alleyne is the floor of the range available to the sentencing judge, the penalty ‘affixed to the crime,’ not the sentence that might actually be served by the offender. That a paroling authority may ultimately decide not to release the defendant when he first becomes eligible is irrelevant.”). Neither the dissent nor the Attorney General cites any other case for the novel proposition that application of the Apprendi rule hinges on whether a defendant is entitled to immediate release upon completion of the sentence at issue or whether the defendant is simply eligible for release or to be paroled. Finally, it is worth noting that this argument is not supported by other state court decisions applying Alleyne to their sentencing schemes. See, e.g., State v Soto, 299 Kan 102; 322 P3d 334 (2014) (rejecting as unconstitutional under Alleyne a statute that provided for a prison sentence of life with 50 years before the possibility of parole). And at bottom, what this argument ignores is that in Alleyne, the Supreme Court held that like a maximum sentence, a minimum sentence enhanced by judicial fact-finding also implicates the Sixth Amendment jury-trial protection. It is therefore no answer to say that Alleyne is inapplicable here because a defendant has no constitutional right to parole. C. “MANDATORY MINIMUM” SENTENCES UNDER ALLEYNE The prosecution and the dissent’s final basis for concluding that Alleyne does not apply to our sentencing guidelines scheme is that the guidelines do not produce “mandatory minimum” sentences for Alleyne purposes. We again disagree. First, this argument seems to assume that Alleyne applies only to what one might consider traditional mandatory minimums, statutes that provide that upon conviction of an offense, the court “shall sentence the defendant to a term of imprisonment of not less than” x number of years. This fails to account for the broad nature of the Apprendi rule generally that “ ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ ” must be established by proof beyond a reasonable doubt. Apprendi, 530 US at 490, quoting Jones, 526 US at 252-253 (emphasis added). While Alleyne applied this rule to a mandatory minimum sentence, and therefore necessarily spent a great deal of time articulating how the mandatory minimum sentence in that case violated Apprendi, it also reemphasized that the Sixth Amendment applies to facts used to set the range of sentences to which a defendant is exposed. Alleyne, 570 US at_; 133 S Ct at 2160 (“[B]ecause the legally prescribed range is the penalty affixed to the crime, ... it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense.”). Thus, Alleyne cannot be dismissed as inapplicable simply because the statute at issue in that case looks different from our statutory guidelines scheme or because Alleyne only applies to the traditional mandatory minimum sentences mentioned previously. As long as the minimum sentence is “mandatory,” i.e., required by law, Alleyne applies. More importantly, the core argument that the guidelines do not produce “mandatory” minimum sentences is itself incorrect. The guidelines minimum sentence range is binding on trial courts, absent their articulating substantial and compelling reasons for a departure. The dissent notes that MCL 769.34(4)(a) labels the guidelines ranges as “recommended minimum sentence ranges,” but elsewhere the same statute states that “the minimum sentence imposed by a court of this state . . . shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed.” MCL 769.34(2) (emphasis added). As we have stated many times, “shall” indicates a mandatory directive. Fradco, Inc v Dep’t of Treasury, 495 Mich 104, 114; 845 NW2d 81 (2014). This is precisely the analysis the United States Supreme Court engaged in in Booker, when it invalidated the federal sentencing guidelines because it concluded they were mandatory. Booker, 543 US at 233-234 (“The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges. While subsection (a) of § 3553 of the sentencing statute lists the Sentencing Guidelines as one factor to be considered in imposing a sentence, subsection (b) directs that the court ‘shall impose a sentence of the kind, and within the range’ established by the Guidelines, subject to departures in specific, limited cases.”). Accordingly, Michigan’s guidelines produce sentences that are just as mandatory as those at issue in Alleyne. But, the dissent asserts, the availability of a sentence departure from the guidelines renders them not truly mandatory. This argument must necessarily reject language from Booker that specifically stated that the availability of a departure “does not avoid the constitutional issue . . . Id. at 234; see also Blakely, 542 US at 305 n 8 (stating that that a judge “cannot make that judgment [that compelling reasons exist to depart from the guidelines] without finding some facts to support it beyond the bare elements of the offense” and that “[w]hether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence”). Much of the dissent’s basis for rejecting the Booker language, however, hinges on its earlier erroneous conclusion that Alleyne does not apply to our “indeterminate” sentencing scheme. To the extent that the dissent’s rejection of this language rests on Drohan, we see nothing in that opinion to indicate that the Drohan Court rejected or even considered this language in reaching its decision. For these reasons, we conclude that Michigan’s sentencing guidelines produce a “mandatory minimum” sentence to which Alleyne applies. Because the rule from Alleyne applies, the Sixth Amendment does not permit judicial fact-finding to score OVs to increase the floor of the sentencing guidelines range. The right to a jury trial is “a fundamental reservation of power in our constitutional structure,” Blakely, 542 US at 306, and therefore one that cannot be restricted in this manner. IV. REMEDY Having concluded that Michigan’s sentencing guidelines violate the Sixth Amendment rule from Apprendi, as extended by Alleyne, we must determine the appropriate remedy for the violation. We consider three options. First, the defendant asks us to require juries to find the facts used to score all the OVs that are not admitted or stipulated by the defendant or necessarily found by the jury’s verdict. We reject this option. The constitutional violation can be effectively remedied without burdening our judicial system in this manner, which could essentially turn sentencing proceedings into mini-trials. And the United States Supreme Court in Booker expressly rejected this remedy because of the profound disruptive effect it would have in every case. Booker, 543 US at 248 (“It would affect decisions about whether to go to trial. It would affect the content of plea negotiations. It would alter the judge’s role in sentencing.”). We agree. Second, we consider the remedy suggested in Judge SHAPIRO’s concurring opinion in this case, which would render advisory only the floor of the applicable guide lines range. Lockridge, 304 Mich App at 316 (opinion by SHAPIRO, J.). While we believe that this is a less disruptive remedy that is fairly closely tailored to the constitutional violation, we decline to adopt it because it would require us to significantly rewrite MCL 769.34(2), which provides in part: Except as otherwise provided in this subsection or for a departure from the appropriate minimum sentence range provided for under subsection (3), the minimum sentence imposed by a court of this state for a felony enumerated in [MCL 777.11 through MCL 777.19] committed on or after January 1, 1999 shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed. [Emphasis added.] The legislative intent in this provision is plain: the Legislature wanted the applicable guidelines minimum sentence range to be mandatory in all cases (other than those in which a departure was appropriate) at both the top and bottom ends. Opening up only one end of the guidelines range, even if curing the constitutional violation, would be inconsistent with the Legislature’s expressed preference for equal treatment. See Booker, 543 US at 248 (“In today’s context—a highly complex statute, interrelated provisions, and a constitutional requirement that creates fundamental change—we cannot assume that Congress, if faced with the statute’s invalidity in key applications, would have preferred to apply the statute in as many other instances as possible”) (emphasis added). And it would require a significant rewrite of the statutory language to maintain the mandatory nature of the guidelines ceiling but render the guidelines floor advisory only. Accordingly, we decline to limit the remedy for the constitutional infirmity to the floor of the guidelines range. Third, the prosecution, in turn, asks us to Booker-ize the Michigan sentencing guidelines, i.e., render them advisory only. We agree that this is the most appropriate remedy. First, it is the same remedy adopted by the United States Supreme Court in Booker. Second, it requires the least judicial rewriting of the statute, as we need only substitute the word “may” for “shall” in MCL 769.34(2) and remove the requirement in MCL 769.34(3) that a trial court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure. Like the Supreme Court in Booker, however, we conclude that although the guidelines can no longer be mandatory, they remain a highly relevant consideration in a trial court’s exercise of sentencing discretion. Thus, we hold that trial courts “must consult those Guidelines and take them into account when sentencing.” Booker, 543 US at 264. Such a system, while “not the system [the legislature] enacted, nonetheless continue^] to move sentencing in [the legislature’s] preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.” Id. at 264-265. Accordingly, we sever MCL 769.34(2) to the extent that it is mandatory and strike down the requirement of a “substantial and compelling reason” to depart from the guidelines range in MCL 769.34(3). When a defendant’s sentence is calculated using a guidelines minimum sentence range in which OVs have been scored on the basis of facts not admitted by the defendant or found beyond a reasonable doubt by the jury, the sentencing court may exercise its discretion to depart from that guidelines range without articulating substantial and compelling reasons for doing so. A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness. Booker, 543 US at 261. Resentencing will be required when a sentence is determined to be unreasonable. Because sentencing courts will hereafter not be bound by the applicable sentencing guidelines range, this remedy cures the Sixth Amendment flaw in our guidelines scheme by removing the unconstitutional constraint on the court’s discretion. Sentencing courts must, however, continue to consult the applicable guidelines range and take it into account when imposing a sentence. Further, sentencing courts must justify the sentence imposed in order to facilitate appellate review. People v Coles, 417 Mich 523, 549; 339 NW2d 440 (1983), overruled in part on other grounds by People v Milbourn, 435 Mich 630, 644; 461 NW2d 1 (1990). V. APPLICATION TO THIS DEFENDANT The defendant did not object to the scoring of the OVs at sentencing on ApprendilAlleyne grounds, so our review is for plain error affecting substantial rights. Carines, 460 Mich at 763, 774. To establish entitle ment to relief under plain-error review, the defendant must establish that an error occurred, that the error was plain, i.e., clear or obvious, and that the plain error affected substantial rights. Id. at 763. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. Id. Finally, even if a defendant satisfies those three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Id. Reversal is warranted only when the error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings independently of the defendant’s innocence. Id. at 763-764. The defendant received a total of 70 OV points and had 35 points assessed for prior record variables, placing him in the D-V cell of the sentencing grid for Class C offenses. MCL 777.64. That cell calls for a minimum sentence of 43 to 86 months. The defendant concedes that the jury verdict necessarily established the factual basis to assess 25 points for OV 3 and 10 points for OV 6. Assuming arguendo that the facts necessary to score OV 5 at 15 points and OV 9 and OV 10 at 10 points each were not established by the jury’s verdict or admitted by the defendant, and yet those facts were used to increase the defendant’s mandatory minimum sentence, violating the Sixth Amendment, the defendant nevertheless is not entitled to resentenc-ing. Because he received an upward departure sentence that did not rely on the minimum sentence range from the improperly scored guidelines (and indeed, the trial court necessarily had to state on the record its reasons for departing from that range), the defendant cannot show prejudice from any error in scoring the OVs in violation of Alleyne. See note 31 of this opinion. VI. APPLICATION TO OTHER DEFENDANTS Although we have held that the defendant in this case cannot satisfy the plain-error standard, we nevertheless must clarify how that standard is to be applied in the many cases that have been held in abeyance for this one. This analysis is particularly important because, given the recent origin of Alleyne, virtually all of those cases involve challenges that were not preserved in the trial court. First, we consider cases in which (1) facts admitted by the defendant and (2) facts found by the jury were sufficient to assess the minimum number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced. In those cases, because the defendant suffered no prejudice from any error, there is no plain error and no further inquiry is required. Second, we consider the converse: cases in which facts admitted by a defendant or found by the jury verdict were insufficient to assess the minimum number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced. In those cases, it is clear from our previous analysis that an unconstitutional constraint actually impaired the defendant’s Sixth Amendment right. The question then turns to which of these defendants is entitled to relief, i.e., which can show plain error. We conclude that all defendants (1) who can demonstrate that their guidelines minimum sentence range was actually constrained by the violation of the Sixth Amendment and (2) whose sentences were not subject to an upward departure can establish a threshold showing of the potential for plain error sufficient to warrant a remand to the trial court for further inquiry. We reach this conclusion in part on the basis of our agreement with the following analysis from United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005): Some might suppose that the only choice for an appellate court in a case presenting a procedural error in imposing a sentence is between disregarding the error and requiring a new sentencing. However, the choice is not so limited. . .. Bearing in mind the several considerations outlined above that shape the context in which a disposition decision is to be made, we conclude that the “further sentencing proceedings” generally appropriate for pre-jBooker / Fanfan[ ] sentences pending on direct review will be a remand to the district court, not for the purpose of a required resentencing, but only for the more limited purpose of permitting the sentencing judge to determine whether to resentence, now fully informed of the new sentencing regime, and if so, to resentence. . .. A remand for determination of whether to resentence is appropriate in order to undertake a proper application of the plain error and harmless error doctrines. Without knowing whether a sentencing judge would have imposed a materially different sentence,... an appellate court will normally be unable to assess the significance of any error that might have been made.... Obviously, any of the errors in the procedure for selecting the original sentence discussed in this opinion would be harmless, and not prejudicial under plain error analysis, if the judge decides on remand, in full compliance with now applicable requirements, that under the post-Booker/Fanfan regime the sentence would have been essentially the same as originally imposed. Conversely, a district judge’s decision that the original sentence would have differed in a nontrivial manner from that imposed will demonstrate that the error in imposing the original sentence was harmful and satisfies plain error analysis. In short, a sentence imposed under a mistaken perception of the requirements of law will satisfy plain error analysis if the sentence imposed under a correct understanding would have been materially different. [Some emphasis added.][ ] Thus, in accordance with this analysis, in cases in which a defendant’s minimum sentence was established by application of the sentencing guidelines in a manner that violated the Sixth Amendment, the case should be remanded to the trial court to determine whether that court would have imposed a materially different sentence but for the constitutional error. If the trial court determines that the answer to that question is yes, the court shall order resentencing. Id. at 118. A few comments on the proper procedures for trial courts to follow on so-called Crosby remands are in order to ensure consistency and stability. First, consistently with Crosby, we hold that Crosby remands are warranted only in cases involving sentences imposed on or before July 29, 2015, the date of today’s decision. Accordingly, for defendants sentenced after our decision today, the traditional plain-error review from Carines will apply. See id. at 116 (“In cases involving review of sentences imposed after the date of Booker/Fanfan, we would expect to apply these prudential doctrines [including plain-error review] in the customary manner.”). Second, we conclude that a trial court considering a case on a Crosby remand should first and foremost “include an opportunity for a defendant to avoid resen-tencing by promptly notifying the [trial] judge that resentencing will not be sought.” Id. at 118. If the defendant does not so notify the court, it “should obtain the views of counsel, at least in writing, but ‘need not’ require the presence of the Defendant,” in “reaching its decision (with or without a hearing) whether to resentence.” Id. at 120. Upon making that decision, the trial court shall “either place on the record a decision not to resentence, with an appropriate explanation, or vacate the sentence and, with the Defendant present, resen-tence in conformity with” this opinion. Id. Stated differently, on a Crosby remand, a trial court should first allow a defendant an opportunity to inform the court that he or she will not seek resentencing. If notification is not received in a timely manner, the court (1) should obtain the views of counsel in some form, (2) may but is not required to hold a hearing on the matter, and (3) need not have the defendant present when it decides whether to resentence the defendant, but (4) must have the defendant present, as required by law, if it decides to resentence the defendant. Further, in determining whether the court would have imposed a materially different sentence but for the unconstitutional constraint, the court should consider only the “circumstances existing at the time of the original sentence.” Id. at 117; see also United States v Ferrell, 485 F3d 687, 688 (CA 2, 2007) (holding that the trial court’s failure to consider the circumstances as they existed at the time of the resentencing hearing, including evidence of the defendant’s post- judgment prison rehabilitation, did not violate the defendant’s due process rights). VII. CONCLUSION Because Michigan’s sentencing guidelines scheme allows judges to find by a preponderance of the evidence facts that are then used to compel an increase in the mandatory minimum punishment a defendant receives, it violates the Sixth Amendment to the United States Constitution under Alleyne. We therefore reverse the judgment below and overrule the Court of Appeals’ decision in Herron. To remedy the constitutional flaw in the guidelines, we hold that they are advisory only. To make a threshold showing of plain error that could require resentencing, a defendant must demonstrate that his or her OV level was calculated using facts beyond those found by the jury or admitted by the defendant and that a corresponding reduction in the defendant’s OV score to account for the error would change the applicable guidelines minimum sentence range. If a defendant makes that threshold showing and was not sentenced to an upward departure sentence, he or she is entitled to a remand to the trial court for that court to determine whether plain error occurred, i.e., whether the court would have imposed the same sentence absent the unconstitutional constraint on its discretion. If the trial court determines that it would not have imposed the same sentence but for the constraint, it must resentence the defendant. We reverse the judgment of the Court of Appeals in part and affirm the defendant’s sentence. YOUNG, C.J., and KELLY, VIVIANO, and BERNSTEIN, JJ., concurred with MCCORMACK, J. To the extent that any part of MCL 769.34 or another statute refers to use of the sentencing guidelines as mandatory or refers to departures from the guidelines, that part or statute is also severed or struck down as necessary. Our order granting leave to appeal did not limit our consideration of the issues presented to the Alleyne question. People v Lockridge, 496 Mich 852 (2014). With respect to the defendant’s other argument that the trial court did not present sufficient substantial and compelling reasons to depart from the sentencing guidelines, we agree with the Court of Appeals that the reasons articulated by the trial court adequately justified the minimal (10-month) departure above the top of the guidelines minimum sentence range. MCL 777.33(l)(c). MCL 777.35(l)(a). MCL 777.36(l)(c). MCL 777.39(l)(c). MCL 777.40(l)(b). MCL 777.16p; MCL 777.64. MCL 750.321. The defendant in Herron subsequently filed an application for leave to appeal in this Court, and that application is being held in abeyance pending the outcome of this case. People v Herron, 846 NW2d 924 (Mich, 2014). Our grant order specifically directed the parties to address (1) whether a judge’s determination of the appropriate sentencing guidelines range, MCL 777.1, et seq., establishes a “mandatory minimum sentence,” such that the facts used to score the offense variables must be admitted by the defendant or established beyond a reasonable doubt to the trier of fact, Alleyne v United States, 570 US_; 133 S Ct 2151; 186 L Ed 2d 314 (2013); and (2) whether the fact that a judge may depart downward from the sentencing guidelines range for “substantial and compelling” reasons, MCL 769.34(3), prevents the sentencing guidelines from being a “mandatory minimum” under Alleyne, see United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005). The Court had previously recognized an “exceptional departure” from this historical practice in Almendarez-Torres v United States, 523 US 224; 118 S Ct 1219; 140 L Ed 2d 350 (1998), for the existence of a prior conviction. Apprendi, 530 US at 487-488. Alleyne, 570 US at_; 133 S Ct at 2160, 2163. To the extent that the Herron panel’s analysis rested on its determination that the sentencing guidelines do not establish a “mandatory minimum” sentence, we reject it for the reasons discussed in Part III(C) of this opinion. MCL 777.62. Because the top of the guidelines range does not implicate the Sixth Amendment, it is not relevant to this hypothetical and we therefore do not discuss it. MCL 750.349. See, e.g., MCL 777.31(1) (directing that the OV be scored by “determining which of the following [circumstances] apply and by assigning the number of points attributable to the one that has the highest number of points”); People v Houston, 473 Mich 399, 407; 702 NW2d 530 (2005). In Drohan, we cited the definition of “indeterminate sentence” from Black’s Law Dictionary (8th ed): a sentence “of an unspecified duration, such as one for a term of 10 to 20 years.” Drohan, 475 Mich at 153 n 10. Drohan was correct to say that Michigan has an indeterminate sentencing scheme under that definition of the term. The United States Supreme Court cases that refer to “indeterminate sentencing” and then immediately stress the exercise of vast judicial discretion within broad sentencing ranges as the centerpiece of such a system are too numerous to cite here. For but a few additional examples, see Almendarez-Torres, 523 US at 245-246 (discussing how judges “have typically exercised their discretion within broad statutory ranges” and then citing a source discussing the “history of indeterminate sentencing”); Mistretta v United States, 488 US 361, 363; 109 S Ct 647; 102 L Ed 2d 714 (1989) (discussing the federal government’s longstanding practice of indeterminate sentencing as one in which “[statutes specified the penalties for crimes but nearly always gave the sentencing judge wide discretion to decide whether the offender should be incarcerated and for how long”); Jones, 526 US at 271 (Kennedy, J., dissenting) (contrasting “a system of indeterminate sentencing or a grant of vast discretion to the trial judge” and “a regime in which there are more uniform penalties, prescribed by the legislature”) (emphasis added). Tb the extent that the dissent criticizes our analysis on this point as “entirely speculative,” and unsupported by binding authority, it simply ignores this footnote and cases cited in the accompanying text. Crucially, the Yuhasz Court cited this imprecision as a reason to hold that the fact that its guidelines scheme is advisory, not its indeterminate nature, made the scheme constitutionally sound. Indeed, to reach that conclusion would be to ignore Alleyne’s clear acknowledgment that there could be two constitutionally significant sentences: a mandatory minimum and a statutory maximum. That only one number might exist in a given case seems of little relevance to the analysis. We do not dispute the dissent’s correct contention that Apprendi and Alleyne stated that they implicate both the Sixth Amendment right to a jury trial and the Fourteenth Amendment right to due process. Post at 438 n 25. But it is for the very reason that both of these rights are implicated that Greenholtz and other cases involving only the latter necessarily cannot answer the question before us. Rather, it is Apprendi and Alleyne, cases that implicate both rights, that are “highly relevant to the analysis.” The dissent briefly cites Wolff v McDonnell, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974), and Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), but both of those cases involve a criminal defendant’s rights in parole proceedings. Thus, they are as inapposite here as Greenholtz. See post at 444 (“[AJnything the Supreme Court has said about upward departures in a determinate system cannot reflexively be applied to an indeterminate system.”). The dissent implies that 11 federal courts of appeal have rendered decisions to the contrary. We do not agree. First, to be clear, none of those courts has rendered a decision on whether Michigan’s sentencing guidelines produce “mandatory minimum” sentences. Second, to the extent that those courts have held that “judicial fact-finding does not implicate Alleyne if there is no ‘mandatory minimum’ sentence involved,” post at 446, we agree with them. But to say that those decisions support the dissent’s analysis simply begs the question: Do Michigan’s sentencing guidelines produce a “mandatory minimum” sentence? In asserting that in Alleyne the “narrow” remedy imposed was “that facts increasing the minimum sentence must be submitted to the jury” and suggesting that we adopt that remedy, the dissent is effectively proposing that we should do just this. For the reasons given, we do not see this remedy as “narrow” given its potential for disruptive effects, which the dissent does not acknowledge. Thus, to the extent that the Constitution requires a certain degree of precision to remedy the constitutional violation, adopting the Booker remedy most carefully ensures that we remain faithful to its dictates. Accordingly, while it is unfortunate that the dissent finds the reasons for our adoption of this remedy unpersuasive, for this and our other reasons stated we believe it to be the most prudent course under the circumstances. Our holding today does nothing to undercut the requirement that the highest number of points possible must be assessed for all OVs, whether using judge-found facts or not. See MCL 777.21(l)(a) (directing that the offense variables applicable to the offense category at issue be scored); see also, e.g., MCL 777.31(1) (directing that the “highest number of points” possible be scored); MCL 777.32(1) (same); etc. The United States Supreme Court has applied plain-error review to unpreserved Apprendi errors. See United States v Cotton, 535 US 625; 122 S Ct 1781; 152 L Ed 2d 860 (2002). It has also held that Apprendi errors are not structural errors, Washington v Recuenco, 548 US 212; 126 S Ct 2546; 165 L Ed 2d 466 (2006), so to the extent that “our caselaw suggests that a plain structural error satisfies the third Cannes prong,” People v Vaughn, 491 Mich 642, 666; 821 NW2d 288 (2012), it is not implicated here. For the reasons explained in Part III(B) of this opinion, the right at issue is a procedural one, i.e., the right to have a “jury determination” of all the pertinent facts used in increasing the prescribed range of penalties, including both the minimum and the maximum sentence. Thus, a constitutional error occurs regardless of whether the error has a substantive effect on the defendant’s sentence. Alleyne makes this plain. Alleyne, 570 US at_; 133 S Ct at 2162-2163 (“[Ufa judge were to find a fact that increased the statutory maximum sentence, such a finding would violate the Sixth Amendment, even if the defendant ultimately received a sentence falling within the original sentencing range (i.e., the range applicable without that aggravating fact). . . . The essential point is that the aggravating fact produced a higher range .... [T]here is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum.”) (emphasis added). Thus, whether that error actually increases the floor of a defendant’s minimum sentence range under the guidelines is only relevant to the question of whether the defendant has suffered any prejudice. In cases such as this one that involve a minimum sentence that is an upward departure, a defendant necessarily cannot show plain error because the sentencing court has already clearly exercised its discretion to impose a harsher sentence than allowed by the guidelines and expressed its reasons for doing so on the record. It defies logic that the court in those circumstances would impose a lesser sentence had it been aware that the guidelines were merely advisory. Thus, we conclude that as a matter of law, a defendant receiving a sentence that is an upward departure cannot show prejudice and therefore cannot establish plain error. Panfan was one of the respondents in Booker. The United States Court of Appeals for the Ninth Circuit has also adopted the Crosby remand procedure. See United States v Ameline, 409 F3d 1073 (CA 9, 2005). Further, the United States Court of Appeals for the Seventh Circuit and the United States Court of Appeals for the District of Columbia have adopted a similar remand procedure, although modifying it so that “the appellate court retains jurisdiction throughout the limited remand, and thus it is the appellate court that will ‘vacate the sentence upon being notified by the judge that he would not have imposed it had he known that the guidelines were merely advisory.’ ” United States v Coles, 365 US App DC 280, 286; 403 F3d 764 (2005), quoting United States v Paladino, 401 F3d 471, 484 (CA 7, 2005). Other circuits have taken different approaches, creating a circuit split on the issue that more resembles a chasm. See, e.g., Nall, United States v Booker: The Presumption of Prejudice in Plain Error Review, 81 Chi-Kent L Rev 621, 635 (2006) (noting that “[e]ach of the twelve circuits has taken a slightly different tack in dealing with direct review of Booker error .. ..”). But as of yet, despite multiple petitions for certio-rari asking it to address the issue, the United States Supreme Court has declined to clarify the proper approach. See, e.g., Rodriguez v United States, 545 US 1127; 125 S Ct 2935; 162 L Ed 2d 866 (2005). MCR 6.425.

Memorandum Opinion. In People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), this Court reversed a guilty plea conviction and declared: "The requirements for a valid guilty plea after June 1, 1973 are set forth specifically in GCR 1963, 785.7. The bench and bar are hereby advised that strict adherence to those requirements is mandatory and that neither substantial compliance nor the absence of prejudicial error will be deemed sufficient. GCR 1963, . 785.7(5).” After the Shekoski order was entered, the Court of Appeals reversed a large number of guilty plea convictions for failure of the trial court to comply strictly with Rule 785.7. Prosecutors have filed applications for leave to appeal in some of those cases. We became convinced that we should reconsider the policy expressed in Shekoski, and we entered two orders — the first granting leave to appeal in 114 appeals pending in the Court of Appeals (394 Mich 776), and the second directing the Court of Appeals to hold in abeyance any decision on the merits of issues related to the integrity of the plea-taking procedure in all other cases (394 Mich 946). Orad arguments were scheduled in these 24 of the 114 transferred appeals. The remaining 90 have not yet been submitted. We conclude that the policy expressed in Shekoski, that any failure of strict adherence to the procedure and practice specified in Rule 785.7 mandates reversal, should be modified. Noncompliance with a requirement of Rule 785.7 may but does not necessarily require reversal. Whether a particular departure from Rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance. Rule 785.7 requires that before a plea of guilty may be accepted, the trial judge shall —personally address the defendant and inform him of and determine that he understands i) the general nature of the charge to which the plea is offered; ii) the sentence which may be imposed and the possibility of other sentence consequences; iii) that his plea of guilty waives his right to a trial and to certain constitutional and other rights incident to a trial; and —place on the record iv) a factual basis for the plea; and v) any plea agreement. These 24 appeals present some of the issues which have arisen in the application of this rule. I Personally Address Rule 785.7 provides: ".7 Plea of Guilty and Plea of Nolo Contendere. A defendant may enter a plea of guilty or plead nolo contendere only with the consent of the court. If the defendant states his intent to plead guilty or to plead nolo contendere the following practice shall be observed: "(1) Advice by the Court. The court shall not accept a plea of guilty or nolo contendere without first personally addressing the defendant and informing him of and determining that he understands the following:”. In Courtney, the judge did not personally advise the defendant of the maximum sentence but in moving to add a second count the prosecutor stated the maximum penalty of five years. In Bauer, the judge did not state the charge but the prosecutor read the information on the plea record. These departures do not justify reversal. While it would be better for the judge to cover all the points himself, as long as he assumes the principal burden of imparting the required information, as did the judges in Courtney and Bauer, the purpose of requiring him personally to address the defendant and in so doing observe his demeanor and responses is achieved. A guilty plea conviction will not be reversed if the judge engages in the required colloquy but fails to mention an item which the record shows was established through, for example, an opening statement of or interjection by the prosecutor or defense counsel in the hearing of the judge and defendant. It is proper for the prosecutor or the clerk to read the information in the judge’s presence. Nor do we regard "grouping” of the rights in the judge’s recital inconsistent with the "personally address” requirement. All judges "group” the recital to some extent, combining a number of rights and imparting several items of information without pause for response by the defendant. No one method of recital is required. In Nicholson and Bauer the judge recited the rights without interruption concluding, in Nicholson, "Now, if that is clear — is it?” and in Bauer, "Do you wish to enter a plea to Count Two?” In Pleasants, the judge both began and ended his uninterrupted recitation of the rights specified in 785.7(l)(d) by asking the defendant if he understood that he was waiving or "giving up” those rights. The method of recital in each of these cases satisfied the "personally address” requirement. II General Nature of the Charge The rule continues (785.7[1] [a]): "(a) the general nature of the charge to which the plea is offered; the court is not obliged to, but may explain the elements of the offense or any defenses possible;”. The rule requires the judge to inform the defendant and determine that he understands the "general nature” of the charge to which the plea is offered. The judge may, but he is not obliged to, explain the elements of the offense. In Torres, the judge said, "They are adding a count of robbery unarmed”. In Adkins, the judge informed the defendant he was charged with the crime of manslaughter. In Courtney, the judge described the offense as "attempted uttering and publishing an instrument which you knew to be false for the payment of money”. In Bauer, the prosecutor read the information and the judge asked the defendant, "Do you understand the charges in both Count One and Count Two?” In Simpson, the judge informed the defendant he was charged with breaking and entering. In fact he was charged with attempted breaking and entering of an occupied dwelling house. It is contended that to insure that a defendant understands the general nature of the charge the judge should name and explain at least the salient elements of the offense. In the necessary accommodation of the desirable with the practicable, it would be unrealistic to impose on the judge the obligation to impart to a defendant the substantive law applicable to his case. In Torres, defendant pled guilty to a reduced charge of unarmed robbery. Robbery can be defined as the six elements of larceny plus two more —(7) the taking must be from the person of the victim or in his presence (8) by violence or intimidation. LaFave & Scott, Criminal Law, §§ 85, 94, pp 622, 692. Even if the judge named these eight elements, his task, arguably, would not be concluded. Depending on the facts of the case, one or more of these elements may require further elucidation to adequately inform the defendant of the law applicable to his case. What constitutes "from the person” or "in his presence”? What constitutes "violence or intimidation”? What is a "taking”, a "carrying away”, or an "intent to steal”? In Adkins, the defendant pled guilty to a reduced charge of manslaughter. The law of homicide is perhaps the most complex part of the law of crimes. Professors LaFave and Scott adumbrate the definitional problem when they say, "Manslaughter * * * includes homicides which are not bad enough to be murder but yet are bad enough to be criminal.” LaFave & Scott, Criminal Law, § 75, p 571. In Simpson it is apparent on the record that the misstatement that the charged offense was breaking and entering did not mislead the defendant. Simpson was charged with and pled guilty to attempted breaking and entering an occupied dwelling house. He did not mistakenly plead to the offense named by the judge. Although a person charged with breaking and entering an occupied dwelling house is subject to a higher sentence than one who breaks and enters some other structure or an unoccupied dwelling house, the general nature of the charge is correctly and adequately described by the generic term "breaking and entering” or its common-law equivalent, burglary. In none of these cases was there a failure to comply with 785.7(l)(a). Ill Sentence Consequences of a Plea of Guilty Maxim um-Minim um: The rule continues (785.7[1] [b]): "(b) the maximum sentence and the mandatory minimum sentence, if any, for the offense to which the plea is offered.” In Hord, the judge informed the defendant that by pleading guilty to robbery armed he subjected himself to a possible sentence of "up to life” but did not advise him that he could not be placed on probation. A person convicted of armed robbery is subject to a sentence of life or any term of years (MCLA 750.529; MSA 28.797), and may not be placed on probation (MCLA 771.1; MSA 28.1131). The rule does not require the judge to inform the defendant of all sentence consequences — only the maximum sentence, any mandatory minimum and, as appears below, if he is on probation or parole, the possible effect on his status as a probationer or parolee. The rule reflects the extent to which this Court is willing to impose on the judge the obligation of informing the defendant of such consequences. A failure to impart the information so required by this subsection (b) will continue to require reversal. Probation-Parole: The rule continues (785.7[1] [c]): "(c) that, if the defendant is on probation or parole, the entry of his plea in the present action admits violation of probation or parole, and may subject him to a sentence of imprisonment for the offense under which he was paroled or placed on probation.” In Torres, the judge said, "by pleading guilty this might be or might not be in violation of your parole?” Defendant contends this is not the same as telling him that the plea admits violation of parole. In Anderson, the defendant was informed that his plea subjected him to return to prison as a parole violator, would be a violation of probation, and might be grounds for the sentencing judge to revoke his probation; he was not advised in so many words that he "may subject him[self] to a sentence of imprisonment”. The purpose of subsection (c) is to impart to the defendant that he may be sentenced as a probation or parole violator. The judges in these cases conveyed the sense of that concept to the defendants although they did not recite (c) word for word. No more is required. Rule 785.7 does not require literal or rote compliance. Failure in Buck to advise the defendant of probation and parole consequences is without significance, as the defendant acknowledged on the record that he was not on probation or parole. In none of these cases was there a failure to comply with 785.7(l)(c). IV Constitutional Rights of the Defendant and Pre-Sentence Consequences of a Plea of Guilty —Waiver of Right to Trial The rule continues (785.7[1] [d]): "(d) that by his plea of guilty or nolo contendere the defendant waives the following rights: "(i) the right to a jury trial or trial by the court, "(ii) the right to be presumed innocent until proven guilty beyond a reasonable doubt, "(iii) the right to confront and to question the witnesses against him and to have compulsory process for obtaining witnesses in his favor, "(iv) the right to remain silent or to testify at his trial, as he may choose, and that at a trial no inferences adverse to him may be properly drawn if defendant chooses not to testify.” The purpose of subsection (d) is to assure that the defendant is informed, and thus to enable the judge to determine that the defendant understands, that his plea waives his constitutional right to a trial. To that end, the defendant is to be apprised of some of the rights and incidents of a trial. Subdivision (d) (i) states that the trial may be by jury or by the court, (ii) speaks of the people’s burden of proof at a trial, (iii) refers to the rights to confront and question and to have compulsory production of witnesses, and (iv) speaks of the Fifth Amendment privilege to remain silent and the defendant’s due process right to testify. See Ferguson v Georgia, 365 US 570, 602; 81 S Ct 756; 5 L Ed 2d 783 (1961), concurring opinion of Mr. Justice Clark. See also Brooks v Tennessee, 406 US 605; 92 S Ct 1891; 32 L Ed 2d 358 (1972). All the rights mentioned are of constitutional magnitude except the statutory right to trial by the court. (MCLA 763.4; MSA 28.857.) Three of them have been given preeminent importance. In People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972), decided after Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), this Court held that a plea of guilty is constitutionally defective and the conviction must be set aside if the defendant is not advised of his rights to have a jury trial, to confront his accusers, and to remain silent. A Jaworski defect cannot be corrected on a remand. If we were to remand for supplementation of the record in an effort to correct such a defect, the defendant — who wishes to have his plea set aside — could, on being informed of the omitted Jaworski right, simply state: "I didn’t know that”. In the face of such a disclaimer, the judge could not properly conclude that the defendant understandingly waived the omitted right. The attorney-client privilege precludes questioning the defendant’s lawyer to establish that he was informed by his lawyer of the omitted right. That a defendant may have been tried by a jury in another case or learned of his rights in an earlier plea-taking proceeding would no more negate his right to be informed of the right to and incidents of a trial at the time a plea of guilty is offered than would proof that he had seen Perry Mason on television or read Erie Stanley Gardner. Many defendants have been made aware at one time or another of the right to and incidents of a trial and the consequences of a plea of guilty. Nevertheless, whatever the personal history of the accused and the quality of his representation, the appearance of justice and the integrity of the process by which pleas of guilty are offered and accepted require, in the solemn moment of passage from presumed innocence to conviction and potential imprisonment, that the judge apprise every defendant of the rights he is waiving and consequences of his plea and make the other determinations required by the rule. However, a recital of rights to one defendant by one judge on one day, may suffice as a recital of rights to that same defendant by the same judge on that same day in another case. The primary purpose of subsection (d) is to impress on the accused that by his plea of guilty he waives his right to a trial. If it appears on the record that this purpose has been achieved, the omission of one or another of these rights, other than a Jaworski right, or the imprecise recital of any such right, including a Jaworski right, does not necessarily require reversal. On appeal the issue is whether it appears on the record that the defendant was informed of such constitutional rights and incidents of a trial as reasonably to warrant the conclusion that he understood what a trial is and that by pleading guilty he was knowingly and voluntarily giving up his right to a trial and such rights and incidents. In a number of cases all the rights specified in (d) were adverted to in the advice to the defendant; the issue raised is one of wording, not omission. In Harrell, the defendant was not in terms told of her right "to remain silent”, but she was advised that she was "not required to take the stand and testify”. In Torres, instead of stating that the defendant could be tried "by the court” and question the witnesses "against him”, he was told that he could have a trial "with or without a jury” and that he was entitled to see, confront and examine "the” witnesses. In Simpson, the judge told the defendant "you would have the presumption of innocence” but did not add "until proven guilty beyond a reasonable doubt”. Like the defendant in Harrell, Simpson was told about the right to remain silent by being advised that he could "choose not to take the stand”. In Cotton, instead of telling the defendant of his right to "compulsory process” in those terms, the judge informed him that he would "be privileged to have any help this court can give you in compelling the attendance of witnesses”. In Courtney and Grohoski, while the defendants were informed of their rights, they were not told in so many words that by a plea of guilty they "waived” those rights. These wording differences are not crucial to the central determination of whether the defendant was informed of and understandingly gave up his right to a trial and the rights and incidents of a trial. In other cases the issue is omission. The defendants were advised of all but one or two of the rights and incidents of a trial mentioned in 785.7(l)(d). The omission in Anderson of the elaboration of the right to confront — the right to question the witnesses — does not justify reversal. We reach the same conclusion in Buck and Smith where the defendants were not informed of their right to compulsory process. The omission in Nicholson of the statutory right to trial by the judge does not justify reversal. The omission in Neal of the corollary of the right to remain silent — the right not to remain silent and "to testify at his trial” — does not justify reversal. Nor is reversal justified in Adkins because of the failure to advise the defendant "that at a trial no inferences adverse to him may be properly drawn” if he chooses not to testify. Some claims of omission or imprecise recital relate to Jaworski rights. In Harrell and Howell, the defendants were informed of their right to question the witnesses against them, but were not in terms advised of their right to "confront” the witnesses so subject to cross-examination. In Stephens, the defendant was not specifically advised of his right to a jury trial but he answered affirmatively when asked whether he understood that he would have a right to a trial and that if he declined to testify the prosecutor could not "raise any inferences of guilt before the jury”. A defendant who is advised of the right to question or cross-examine witnesses against him has been informed that he has a right to confront his accusers. Stephens, who understood that the prosecutor could not ask a "jury” to infer guilt from failure to testify, was, it appears on this record, adequately informed of his right to a trial by jury. In advising of Jaworski rights, as of other 785.7(1)(d) rights, literal compliance is not required. Our examination of the plea transcripts persuades us that in the cases heretofore discussed in this part IV there was compliance with 785.7(l)(d). In each case the judge informed the defendant of the constitutional and other rights delineated in the rule in such manner as reasonably to warrant the conclusion that the defendant understood what a trial is and that by pleading guilty he was knowingly giving up his right to a trial and the rights and incidents of a trial. We are particularly impressed with the transcript in the Stephens case where the defendant was further advised, before his plea was accepted, of the sentence that would be imposed and that it would run concurrently with the sentence he was then serving. This defendant, in contrast with the other defendants who did not know whether their sentence wishes or expectations would be fulfilled, understood the consequence of his plea that most concerned him — the precise punishment to which he would be subjected. In Howell we reverse the conviction and in Burkett we remand for further proceedings in accordance with this opinion. In Howelldefendant pled guilty to the reduced charge of larceny from a person. Defendant was not advised of the presumption of innocence as required by 785.7(l)(d)(ii). That right is at the core of our criminal process and fundamental to defendant’s understanding of a trial. In Burkett, the defendant pled guilty to assault with intent to rob being armed. The alleged errors include failure to state the plea bargain on the record, and to establish that the plea was freely, understandingly and voluntarily made and failure to advise of the right to compulsory process 785.7(l)(d)(iii). This appears to have been the third plea by defendant before the same trial judge on the same day. It may have been that defendant had been adequately advised of his rights on those occasions, but the record is silent. We remand. The prosecutor shall produce all transcripts of pleas taken from defendant on February 15, 1974. On the basis of all these transcripts, defendant may raise any errors in the plea taking with the trial court in a motion to vacate. V Insuring the Plea is Voluntary — "Freely, Understandingly and Voluntarily” Rule 785.7(2) provides: "The court shall not accept a plea of guilty or nolo contendere without personally addressing the defendant and determining that the plea is freely, understandingly and voluntarily made.” The rule does not require a judge to make this determination in any particular manner. He need not, contrary to the contention in Burkett, ask the defendant whether his plea of guilty is "freely, understandingly and voluntarily made”. The judge’s determination that the plea is freely, understandingly and voluntarily made may be concluded from the judge’s acceptance of the plea even though he makes no separate finding of fact on this issue. The rule permits the judge to take the plea under advisement. GCR 1963, 785.7(4). The failure of the judge in Young formally to accept the plea before sentencing does not justify reversal. By sentencing the defendant the judge implicitly accepted the plea. VI Insuring the Plea is Voluntary — Plea Agreement on the Record Rule 785.7(2) provides: " * * * If the tendered plea is the result of an agreement between the prosecutor and the defendant or his lawyer regarding the entry of a plea, the agreement shall be stated on the record and affirmatively acknowledged by the defendant, his lawyer and the prosecutor.” In Crowder, the plea record shows that the defendant was charged with first-degree murder and pled guilty to manslaughter. The court indicated that any sentence would run concurrently with a North Carolina sentence the defendant was serving. The court asked whether anyone had made "any other promises”. The defendant replied negatively. It is implicit on the record that a bargain was made, but there was a failure to comply with the requirement that the agreement be stated on the record and affirmatively acknowledged by the defendant, his lawyer and the prosecutor. This omission can, however, in contrast with a failure to comply with the requirements of subdivision (1) concerning advice by the court, be corrected on remand without the ready cooperation of the defendant. Accordingly, Crowder is remanded to the trial court for a hearing to supplement the plea record regarding the requirements of 785.7(2). The defendant will then be given an opportunity to state his understanding of the agreement. The judge should caution the defendant that if he refers to conversations with his lawyer he will thereby waive the attorney-client privilege and his lawyer will be required to state his understanding of the agreement and what he told the defendant. If the judge determines that the plea agreement was not fulfilled, he shall, in his discretion, either amend the judgment of conviction (if the plea agreement can yet be fulfilled by such an amendment) or permit the defendant to withdraw his plea of guilty and vacate the judgment of conviction. See People v Eck, 39 Mich App 176; 197 NW2d 289 (1972); People v Baker, 46 Mich App 495; 208 NW2d 220 (1973); People v Stevens, 45 Mich App 689; 206 NW2d 757 (1973). A similar procedure shall be followed where it is claimed that failure to comply with (l)(c) requires reversal because a defendant who was on proba tion or parole was not advised of the possible sentencing consequences in that regard. In such a case the cause shall be remanded to the trial court and the judgment of conviction set aside if it appears that the defendant was in fact (i) on probation or parole and (ii) subjected to confinement for violation of parole or probation because of his guilty plea conviction. If it does not so appear, the judgment of conviction shall be deemed affirmed. VII Factual Basis The rule continues (785.7[3]): "(3) Determining Factual Basis for Plea. "(a) The court shall not accept a plea of guilty or nolo contendere until it is satisfied that a crime was committed. "(b) The court shall not accept a plea of guilty until it is satisfied that a crime was committed and, through personal interrogation of the defendant, that defendant participated therein. "(c) If defendant’s description of his actions and any otherwise admissible evidence presented to the court on the record during the plea taking proceedings would not substantially support a finding that defendant is in fact guilty of the charged offense or the offense to which he is pleading, the plea shall be rejected by the court.” In Simpson, the defendant pled guilty to attempted breaking and entering of an occupied dwelling house with intent to commit larceny. He admitted that he attempted to enter a building without permission for the purpose of taking something from the building. The failure to establish that the structure was an occupied dwelling house requires remand because the maximum sentence for breaking and entering an occupied dwelling house is 15 years while the maximum sentence for other breaking and enterings is 10 years (MCLA 750.110; MSA 28.305). On remand the prosecutor shall be given an opportunity to establish the missing element. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If the prosecutor is unable to establish the missing element, the judgment of conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion. GCR 1963, 785.7(4). In Neal, the defendant pled guilty to larceny from a person. He said he walked into a drugstore and told an employee not to make any false moves and to put all the money into a paper bag, "then I ran out of the store”. The record does not show that the employee put any money into the bag. This case is remanded to accord the prosecutor an opportunity to supply the missing element. See People v Royce Alexander, 17 Mich App 30; 169 NW2d 190 (1969). In the other cases where factual basis issues were raised we find that the factual basis was adequately established. In each case it appears on the record that the defendant pled guilty to an offense of which he might have been convicted at trial. In Sanders, the defendant pled guilty to attempted armed robbery. He said that he and a confederate entered a fast food restaurant for the purpose of holding it up and did so. He admitted his partner had a gun but denied he knew this at the time of the robbery. Despite defendant’s disclaimer, on his own recital a jury could properly conclude that he and his confederate agreed to commit the crime of robbery and, whether or not the defendant was aware his confederate had a gun, that carrying or using a gun was "fairly within the scope” of the common unlawful enterprise. See People v Pearce, 20 Mich App 289; 174 NW2d 19 (1969); People v Poplar, 20 Mich App 132; 173 NW2d 732 (1969). In Dillard, the defendant pled guilty to assault with intent to rob being armed. While the record does not establish that he overtly threatened the victim with the pistol, a jury could reasonably draw that inference from defendant’s admission that he attempted to take money and used a pistol. In Young, the defendant pled guilty to assault with intent to rob being armed. Although he denied using the knife in his pocket or showing it to the victim, he admitted carrying a cane in his hand because he had sprained his left ankle. A jury could reasonably infer that the victim was menaced by the cane under the circumstances described by the defendant. In Harrell, the defendant pled guilty to second-degree murder. She admitted she had shot another woman with a gun. Under the circumstances described in her own recital, a jury could properly infer intent to kill from the fact that she shot the victim with a gun. A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference. In Robinson, the defendant was charged with first-degree murder and pled guilty to second-degree murder. He admitted that in anger he set fire to a building which caused the death of two per sons. The court did not ask him if he intended to kill anyone when he set the fire. It is asserted that the record does not show the elements of malice and intent to kill. However, it is not necessary for a defendant pleading guilty to second-degree murder to admit that he acted with malice or intended to kill. A jury could properly infer intent to kill, even where the defendant disclaims such intent, from evidence that he intentionally set in motion a force likely to cause death or grievous bodily harm — here setting fire to a building. In Victor, the defendant pled guilty to felonious assault. He said he took a shotgun and "shot outside up in the air at the girl — well, up in the air. She thought that I shot at her but it was up in the air.” A jury could have convicted the defendant of felonious assault on his appraisal of the victim’s reaction to the shot. In Courtney, it is asserted that attempted uttering and publishing is not an offense. While a forged instrument is uttered when it is offered as genuine without regard to whether it is accepted (People v Caton, 25 Mich 388 [1872]), it does not follow that this crime cannot be attempted. A person intent on committing this crime might, for example, enter a bank with a forged instrument and be apprehended as he is withdrawing it from his wallet immediately before uttering it. Such conduct could constitute the crime of attempted uttering and publishing. People v Brandon, 46 Mich App 484; 208 NW2d 214 (1973), is disapproved. We also disapprove of the concurring opinion in People v Norris, 40 Mich App 45, 49; 198 NW2d 430 (1972), which states that attempt to possess a blackjack is not an offense. A person may commit the offense of attempted possession of a prohibited substance or thing. Simpson v United States, 195 F2d 721 (CA 9, 1952); United States v Robles, 185 F Supp 82 (ND Cal, 1960); United States v Rosenson, 291 F Supp 874 (ED La, 1968); United States v Heng Awkak Roman, 356 F Supp 434 (SD NY, 1973). VIII Nolo Contendere — Factual Basis — Reasons for Not Interrogating Defendant The rule continues (785.7[3] [d]): "(d) Where a plea of nolo contendere is made the court shall not interrogate the defendant regarding his or her participation in the crime. However, the court may not accept a plea of nolo contendere unless there has been or the judge thereupon conducts a hearing establishing substantial support for a finding that the defendant is in fact guilty of the charged offense or the offense to which he is offering the plea of nolo contendere and unless the judge first states reasons for believing that the interests of the defendant and the proper administration of justice do not require interrogation of the defendant regarding his participation in the crime.” In Pleasants, defendant went to trial on a charge of assault with intent to rob being armed. At the close of the people’s case, he offered a plea of nolo contendere to that charge and a plea of guilty to a second charge of assault with intent to rob being armed, reduced from an original charge of armed robbery arising out of an unrelated incident. The plea-taking record demonstrates that, although both pleas were taken in one proceeding, the defendant was fully apprised of his rights and understood that by entering the pleas he was waiving his constitutional right to a trial and the rights and incidents of a trial. The nolo plea was offered midway in the trial on the charge of assault with intent to rob being armed after the people’s evidence had been presented. The requisite factual basis for the plea was established by admission without objection of that evidence. The judge failed, however, to "state reasons” for his conclusion that the interests of the defendant and the proper administration of justice did not require interrogation of the defendant regarding his participation in the crime as would have been necessary in a guilty plea: "[T]he court finds on the basis of the factual information that has been adduced at this hearing that substantial support has been established for finding that the defendant is in fact guilty of the offense to which the plea of nolo contendere is offered to wit, assault with intent to rob and steal being armed, and that neither the interests of the defendant nor the proper administration of justice require interrogation of the defendant regarding his participation in that crime.” In requiring the judge to state reasons for accepting a nolo plea, the rule expresses this Court’s preference for interrogation of the defendant by the judge and for reliance on his responses to establish a factual basis. Since direct questioning is not possible where the defendant offering a plea is unable or unwilling to admit his guilt or relate the details of the alleged criminal conduct, the rule requires that there be especial circumstances justifying departure from the norm of direct questioning of the defendant, as in a guilty plea, and acceptance of a plea of nolo contendere. Among the justifying circumstances that have been suggested are (1) a reluctance on defendant’s part to relate the details of a particularly sordid crime (e.g., sexual assault on a child); (2) the defendant’s recollection of the facts may be unclear because he was intoxicated (People v Stoner, 23 Mich App 598, 608; 179 NW2d 217 [1970]) or he committed so many crimes of a like nature that he cannot differentiate one from another; and (3) because he wishes to minimize other repercussions, e.g., civil litigation. This enumeration is not meant to be exhaustive. In this case, the judge’s conclusory statement was not a "reason” within the meaning of 785.7(3)(d) which would justify acceptance of a nolo plea and departure from the direct questioning method of establishing a factual basis as in a guilty plea. We, accordingly, remand this case to the trial court for supplementation of the record in that regard. If the judge is unable to state a reason, the defendant’s conviction shall be vacated and the case shall be set for trial. We do not wish to be understood as suggesting a view on the question whether on this record the trial court could properly state reasons for believing that the interests of the defendant and the proper administration of justice did not require interrogation of the defendant regarding his participation in the crime. IX McMiller In People v McMiller, 389 Mich 425, 434; 208 NW2d 451 (1973), we said: "[W]e hold that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction.” We also said: "A prosecutor can protect himself against being forced to try a defendant on a lesser offense by calling the attention of the judge, before he accepts a plea of guilty, to any failure to comply with the prescribed procedure for taking such a plea.” Trial judges and prosecutors have expressed concern about McMiller creating a costless "breaking of a plea bargáin” and an unwarranted encouragement to appeal, a free ride as it were. Errorless plea taking is the primary responsibility of the trial judge. The oral arguments and colloquy with this Court in connection with the hearing of these cases indicated that as court officers both the prosecutor and the defense attorney should share with the trial judge the responsibility for error-free plea taking. The prosecutor no less than the defense attorney should be alert to bring to the trial court’s attention any errors of omission or commission. Trial courts should be ready and receptive to taking advantage of any such proper advice. The hearings indicated that some judges have discouraged prosecutors in performing this duty, while others welcome this help. It is to be hoped that all prosecutors and all judges will take advantage of this opportunity to improve the administration of justice. We have amended the rules to facilitate the prosecutor calling to the court’s attention any error by adding the following subrule: 785.7(4) Additional Inquiries and Statements by the Court. Upon completing the colloquy with the defendant, the court shall, (a) ask the prosecutor and the defendant’s lawyer whether the court has complied with subrules 785.7(1M3). If it appears to the court that it has failed to comply, the court shall do so. The prosecutor should be specific and clear in calling error to the court’s attention. This will permit the court more readily to take proper action and may in some instances, as in advising the defendant of his rights, actually fulfill the requirement of Rule 785.7 that the court personally inform the defendant of certain rights. If the prosecutor calls the court’s attention to plea-taking error before the plea is accepted, McMiller will not apply in the event the trial court vacates the plea on defendant’s motion or with defendant’s consent or the trial court is reversed on appeal on the basis of the same error. X Other Issues In Simpson and Cotton, the defendants assert that the judge considered inaccurate information in sentencing them. Such claims should, before appeal, first be presented to the trial court by motion to vacate sentence, supported by appropriate affidavits indicating that the sentencing judge had before him and may have considered inaccurate information. Upon such a showing, the sentencing court shall hear the defendant’s claims and shall make such disposition, including vacation of sentence and resentencing, as may be warranted. Compare People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972); People v Lee, 391 Mich 618; 218 NW2d 655 (1974); People v Zachery Davis, 41 Mich App 683; 200 NW2d 779 (1972). Conclusion This Court is persuaded that simplification and improvement of the language and structure of GCR 1963, 785.7 will facilitate compliance and has adopted, effective in 30 days, a revision of that rule as set forth in appendix A. The attention of the bench and bar is directed to the addition of new subsection (l)(c) and (l)(f) and new subdivisions (4) and (5). The order directing the Court of Appeals to hold in abeyance decision on the merits of appeals from pleas of guilty and nolo contendere is vacated with immediate effect. Motions to affirm, reverse or remand in the remaining 90 transferred appeals may be filed in this Court within 30 days of the date of this opinion if the moving party asserts that decision on all issues raised by the appellant in the Court of Appeals is controlled by this opinion. The response to such a motion may not raise new issues, but a motion for leave to raise new issues may be filed with the response. See GCR 1963, 852.2(l)(b). We affirm the judgments of conviction in all cases except Howell, which is reversed and remanded for trial, and Burkett (part IV), Crowder (part VI), Simpson and Neal (part VII), and Pleas-ants (part VIII), which are remanded to the trial courts for further proceedings consistent with this opinion. We retain no further jurisdiction. This memorandum opinion is signed by six Justices. There are separate concurring and dissenting opinions. However, at least four Justices concur in every holding, statement and disposition. T. G. Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, and Lindemer, JJ., concurred. Swainson, J., took no part in the decision of this case. APPENDIX A In the Matter of the Amendment of GCR 1963, 785.7 On order of the Court, the need for immediate action having been found, the notice requirements of GCR 1963, 933 were dispensed with, and the following amendment of GCR 1963, 785 (by which subrule .7 is entirely superseded and replaced) was adopted by the Supreme Court on November 7, 1975, to be effective December 7, 1975. Rule 785. Criminal Procedure. .1-6 (Unchanged.) .7 Pleas of Guilty and Nolo Contendere. A defendant may plead guilty or nolo contendere only with the court’s consent. Prior to accepting the plea, the court shall personally carry out subrules 785.7(1M4). (1) An Understanding Plea. Speaking directly to the defendant, the court shall tell him: (a) the name of the offense to which he is pleading; the court is not obliged to explain the elements of the offense, or possible defenses; (b) the maximum possible prison sentence for the offense; (c) if he has been previously convicted of a felony, he may be charged as a habitual offender and the maximum possible sentence may be increased; (d) the mandatory minimum prison sentence, if any, for the offense; (e) if he is on probation or parole, he may be sentenced for violating probation or parole; (f) if the plea is to murder, armed robbery or treason, he cannot be placed on probation; (g) if his plea is accepted, he will not have a trial of any kind, so he gives up the rights he would have at a trial, including the right (i) to a trial by a jury; (ii) to trial by the court if he does not want trial by a jury; (iii) to be presumed innocent until proved guilty; (iv) to have the prosecutor prove beyond a reasonable doubt that he is guilty; (v) to have the witnesses against him appear at the trial; (vi) to question the witnesses against him; (vii) to have the court order any witnesses he has for his defense to appear at the trial; (viii) to remain silent during the trial; (ix) to not have his silence used against him; and (x) to testify at the trial if he wants to testify. (2) A Voluntary Plea. (a) The court shall ask the prosecutor and the defendant’s lawyer whether they have made a plea agreement. (b) If there is such a plea agreement, the court shall ask the prosecutor or the defendant’s lawyer, what the terms of the agreement are and shall confirm the terms of the agreement with the other lawyer and the defendant. (c) The court shall ask the defendant: (i) (if there is no plea agreement) whether anyone has promised him anything, or (if there is a plea agreement) whether anyone has promised him anything beyond what is in the plea agreement; (ii) whether anyone has threatened him; and (iii) whether it is his own choice to plead guilty. (3) An Accurate Plea. (a) If the defendant pleads guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading. (b) If the defendant pleads nolo contendere, the court shall not question him about his participation in the crime. The court shall: (i) state why a plea of nolo contendere is appropriate; and (ii) conduct a hearing, unless there has been one, that establishes support for a finding that the defendant is guilty of the offense charged or the offense to which he is pleading. (4) Additional Inquiries and Statements by the Court. Upon completing the colloquy with the defendant, the court shall, (a) ask the prosecutor and the defendant’s lawyer whether the court has complied with subrules 785.7(1M3). If it appears to the court that it has failed to comply, the court shall do so. (b) state whether the court has agreed upon the possibility of a plea or the possible sentence with the prosecutor or the defendant or anyone acting in the interests of either, and, if so, that to which the court has agreed. (5) Acceptance of Plea. The court shall not accept the plea unless it is convinced that the plea is understanding, voluntary and accurate. (6) Setting Aside the Plea. The court may take the plea under advisement. (a) Until the court accepts the plea on the record, the defendant may withdraw it as a matter of right. (b) After the court accepts the plea: (i) the court may set it aside on defendant’s motion; or (ii) the court may sua sponte set it aside, but only with defendant’s consent. .8-.13 (Unchanged.) See McCormick, Evidence (2d ed), § 342, p 806; 9 Wigmore, Evidence (3d ed), § 2511, p 407; In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970); Mullaney v Wilbur, 421 US 684; 95 S Ct 1881; 44 L Ed 2d 508 (1975). "Direct questioning enables the judge to determine how the defendant views the facts. By the defendant’s answers to the judge’s questions, the judge, a trained observer, can himself appraise whether the plea is, indeed, a truthful plea. It permits the judge, who will be sentencing the defendant, to get the feel of the situation. "Direct questioning of the defendant is informative; it permits the judge to satisfy himself as to the substantiality and justification for the prosecution and that it is consistent with the sound administration of justice to permit the defendant to plead guilty. This does not mean that the judge must decide that the defendant is guilty before he agrees to accept the plea. Indeed, a plea of guilty may be accepted even though the defendant is unsure of his guilt and even where he denies his guilt if after careful inquiry the judge satisfies himself that there is a substantial factual basis for the plea and that the plea represents a well-considered and well-advised choice by the defendant.” (Emphasis by the author.) People v Coates, 32 Mich App 52, 70; 188 NW2d 265 (1971), Levin, J., dissenting. Direct questioning is not an absolute. As set forth in Part VII of this opinion, where the judge makes a conscientious effort to establish a factual basis for a plea of guilty by direct questioning of the defendant, omissions in the record recital of the factual basis may be established in some other manner. Similarly, the rule permits a departure from the direct questioning method of establishing a factual basis where there are especial circumstances justifying acceptance of a nolo plea.