Michigan Supreme Court Lansing, Michigan

Marilyn Kelly, Chief Justice

Michael F. Cavanag h
Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,
Justices 

# Order

May 8, 2009

137518

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v SC: 137518 COA: 284148 Wayne CC: 67-142555-FC LA SALLE WILLIE WASHINGTON, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the applicati on for leave to appeal the August 29, 2008 order of the Court of Appeals is considered , and it is DENIED, because the defendant has
failed to meet the burden of establishi ng entitlement to relief under MCR 6.508(D).

K ELLY , C.J. ( dissenting ).

In 1967, defendant sh ot and killed the owner of a ma rket. When a jury was unable
to reach a verdict on the charged offense of first-degr ee felony murder, the trial court declared a mistrial. Several weeks later, defendant pleaded gu ilty of second-degree murder. He was sentenced to a pa rolable term of life imprisonment.

Defendant did not file a dir ect appeal. However, he later moved to withdraw his guilty plea because the trial cour t had failed to advise him that he had the right to testify at trial. The trial court denied the motion, and the Court of Appeals denied leave to appeal for lack of merit. This Court denied leave to appeal. 1

Defendant filed this motion for relief fro m judgment in 2003. The trial court denied the motion. The Court of Appeals deni ed leave to appeal fo r failure to meet the burden of establishing entitlement to relief under MCR 6.508(D).

1 People v Washington , 390 Mich 786 (1973).I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk May 8, 2009

s0505 2

Defendant seeks relief from judgment becaus e, after his sentence was pronounced, the Michigan Parole Board changed its polic y on paroling convicts incarcerated for life sentences. The policy now is th at “life means life,” meaning those sentenced to life terms are ineligible for parole. At sentencing, defendant, the trial judge, and counsel believed that a person sentenced to parolable life became eligible to be considered for parole and could be paroled after 10 years of incarceration.

Thus, defendant claims that he is entitle d to resentencing because he did not understand the consequences of his guilty plea. Furtherm ore, defendant claims that, because the parole board adopte d the “life means life” policy after he was sentenced, the new policy, as applied to him, violates the Ex Post Facto Clause of the United States
Constitution. 2

Defendant relies on Foster Bey v Rubitschun

, 3 a federal case in which United States District Judge Battani ruled that the changes in the parole board’s policy violated
the Ex Post Facto Clause when retroactivel y applied to prisoners. Judge Battani noted that (1) the board’s unde rstanding of its ability to exercise its discretion in light of its changed policies, (2) its redefinition of th e eligibility procedure for non-mandatory life sentences, and (3) the changes in the timing and intervals of the interview and review process significantly disadvantaged pris oners with parolable life sentences.

This issue has been addressed by the Court of Appeals. 4 But this Court has never spoken on whether the changes in the parole board’s policy constitute a violation of the
Ex Post Facto Clause. The i ssue is jurisprudentially signifi cant and a resolution of it by this Court is long overdue. Accordingly, th e Court should grant defendant’s application for leave to appeal to cons ider the issue presented in Foster Bey and hear this case along
with People v Stovall , ___ Mich ___ (Docket No. 1373 26, order entered May 8, 2009).

2 US Const, art I, § 10, cl 1.

3 Foster Bey v Rubitschun , 2007 LEXIS 95748 (ED Mich, 2007).

4 See People v Hill , 267 Mich App 345 (2005).