Opinion
By order of November 2, 2007, the prosecuting attorney was directed to answer the application for leave to appeal the March 1, 2007 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion for appointment of counsel is DENIED.
YOUNG , J., concurs and states as follows:
I concur in the order and write solely to respond to Justice Kelly's dissent. This defendant has appealed to this Court and the Court of Appeals a number of times over the years since his conviction. The current application for leave to appeal is from defendant's fourth motion for relief from judgment. Considering the defendant's relative youth when he committed and was convicted of assault [480 Mich. 1120] with intent to commit armed robbery, several justices have wondered why defendant has been incarcerated for so long. This is a humane and understandable impulse but one that now trenches upon the discretionary authority of the Department of Corrections, which alone has the authority to determine when convicted felons will be paroled. This Court recently requested that the prosecutor provide an explanation “as to what has led the Department of Corrections to exercise its discretion to keep the defendant incarcerated until now." People v. Johnson, --- Mich. ----, 740 N.W.2d 310. As it turns out, this defendant has a lengthy and substantial record of prison violations, including violent assaults. So that the public will be able to assess the arguments Justice Kelly makes on his behalf, I attach hereto the summary of defendant's prison record provided by the prosecutor. [Attachment at the end of the order.]
Justice Kelly is correct that “[i]n this country, we sentence defendants for the acts for which they have been convicted." Post at 770 n. 10. As noted, this defendant was convicted of assault with intent to commit armed robbery. In 1980, just like today, that crime was “punishable by imprisonment in the state prison for life, or any term of years." MCL 750.89 ; People v. Johnson, 130 Mich.App. 26, 29-30, 343 N.W.2d 226 (1983) . On direct appeal, the Court of Appeals upheld defendant's conviction and sentence, and after remand, this Court denied defendant's application for leave to appeal. In this successive motion for relief from judgment, defendant has not raised “a retroactive change in law that occurred after the first motion for relief from judgment or a claim of new evidence that was not discovered before the first such motion" that would justify upsetting his conviction or sentence. MCR 6.502(G)(2) .
MARILYN J. KELLY , J., dissents and states as follows:
In August 1980, defendant and an accomplice used an air rifle to rob an ice cream vendor of a small amount of cash and several ice cream bars. Both men were 19 years old at the time of the crime. Defendant held the air rifle while his codefendant took the money. No shots were fired. Both men pleaded guilty of assault with intent to rob while armed. The codefendant received a sentence of six months in the county jail with work release. Defendant was sentenced to a “parolable" life sentence. He is still in prison serving that sentence 28 years later.
Since his conviction, defendant has repeatedly applied for relief in this Court. Numerous members of this Court have expressed concern over the sentence imposed. In 1985, Justice Ryan, dissenting from an order denying leave to appeal, stated that he would direct the appointment of counsel to enable this Court to consider whether defendant's sentence was “so shocking to the conscience of the Court" that relief should be granted. On defendant's motion for reconsideration, Justices Levin and Archer wrote that they would grant the motion. Twenty years later, Justice Cavanagh echoed similar concerns in a dissenting statement of his own. He stated that he would grant leave to appeal to explore what relief [480 Mich. 1121] this Court could afford defendant. Both Justice Markman and I have indicated that we would grant leave to appeal to further consider defendant's case.
People v. Johnson, 422 Mich. 897, 367 N.W.2d 331 (1985) .
Id.
People v. Johnson, 474 Mich. 924, 706 N.W.2d 7 (2005) .
Id.
Id.
Today, defendant again applies for leave to appeal in this Court. After directing the prosecutor to respond, this Court denies relief. I strongly object. Appellate counsel should be appointed for defendant and oral argument should be heard on the application, with the parties directed to address what, if any, relief this Court could afford defendant.
Argument on the application is particularly appropriate because numerous issues exist that may entitle defendant to relief. First, although he and his codefendant engaged in the same behavior and pleaded guilty of the same crime, defendant remains in prison whereas his codefendant spent six months in jail with work release. Because two such drastically different sentences were imposed for the same behavior, serious concerns arise about the validity of defendant's sentence. It seems a miscarriage of justice to sentence one man to life in prison and another to six months in jail for the same behavior. If our system of justice is to retain its valued place in society, people must be treated equally. That appears not to have happened here. Another possible theory for relief is that defendant's trial counsel may have been ineffective in failing to obtain a proportionate sentence for his client.
Finally, defendant's sentence may be unconstitutional in light of the recent decision in Foster-Bey v. Rubitschun. There, Judge Battani held that changes to Michigan's parole law and polices in 1992 and 1999 violate the Ex Post Facto Clause of the United States Constitution. As I have noted previously, I believe that serious concerns exist regarding the constitutionality of this state's parole system for those sentenced to parolable life terms before 1992. This case presents an excellent opportunity for this Court to consider this jurisprudentially significant issue.
Unpublished opinion of the District Court for the Eastern District of Michigan, issued October 23, 2007 (Docket No. 05-71318).
E.g., People v. Scott, 480 Mich. 1019, 743 N.W.2d 62 (2008) .
In sum, the Court should appoint counsel for defendant and hear argument on his application so it can decide what, if any, relief is available to defendant.
Justice Young responds to my statement by pointing to defendant's prison record. In this country, we sentence defendants for the acts for which they have been convicted. Therefore, it is inappropriate to consider their later behavior in prison when reviewing the appropriateness of the sentence. The relevant question before us is whether the sentence was valid when it was handed down. Accordingly, anything this defendant has done since sentencing is irrelevant in deciding whether his sentence, life in prison for stealing a small sum of money and some ice cream bars, is proper.