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,
J ustices 

# Order

May 8, 2009

137326

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v SC: 137326 COA: 287160 Wayne CC: 92-000334; 92-000335 MONTEZ A. STOVALL, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application fo r leave to appeal the September 3, 2008 order of the Court of Appeal s is considered, and it is DE NIED, because the defendant’s motion for relief from judgment is prohibited by MCR 6.502(G).

K ELLY , C.J. ( dissenting )

In 1991, defendant shot and killed two victims. With re spect to each killing, he pleaded guilty of second-deg ree murder. Both pleas in volved a sent ence agreement
under which defendant would be senten ced to parolable life imprisonment.

At the plea hearing, his co unsel stated, “I’ve advised [defendant] that the statute permits the Parole Board to consider him for [p arole] at the end of te n years on this type

of life sentence . . . .” Defe ndant later moved to withdraw his pleas, arguing that defense counsel had misled him concerning the likelih ood that he could be paroled from his life

sentences. The trial court denied the motion. The Court of Appe als affirmed, finding that defendant’s pleas were freely, voluntar ily, and understandingly made. This Court denied defendant’s applica tion for leave to appeal. 1

Defendant then filed two unsuccessful mo tions for relief from ju dgment. This is defendant’s third such motion. Although MCR 6.502(G)(1) states that a court must return without filing any su ccessive motions for relief from judgment, MCR 6.502(G)(2)

1 People v Stovall , 446 Mich 862 (1994).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

p0505 2

provides an exception to that rule when a retroactive cha nge in the law has occurred.

Defendant argues that, because the Michigan Parole Boar d has established a policy that “life in prison means life in prison,” the trial judge and defense counsel operated under a misunderstanding of the law when he was sentenced. Thus, defendant claims that he is entitled to resentencing because he did not understand the c onsequences of his guilty plea. Furthermore, defendant claims that changes in the parole board’s policy regarding life sentences that went into effect in 1992 and 1999 viol ate 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 held that the parole board policy changes in question

violated the Ex Post Facto Clause when retr oactively applied to pr isoners. Judge Battani noted that (1) the board’s unde rstanding of its ability to exerci se its discretion in light of its changed policy, (2) its re definition of the eligibility pr ocedure for non-mandatory life sentences, and (3) the changes in the timing and intervals of the interview and review process have significantly disadvantaged prisoners 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 Washington , ___ Mich ___ (Doc ket No. 137518, 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).