Opinion
SC: 163719 COA: 351824
10-07-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick Neil KINNEY, Defendant-Appellant.
Order
By order of March 8, 2022, the application for leave to appeal the September 16, 2021 judgment of the Court of Appeals was held in abeyance pending the decision in People v Stovall (Docket No. 162425). On order of the Court, the case having been decided on July 28, 2022, ––– Mich ––––, ––– N.W.2d ––––, 2022 WL 3007491 (2022), the application is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE in part the judgment of the Court of Appeals, VACATE the sentence of the Genesee Circuit Court, and REMAND this case to the trial court for resentencing. The defendant's parolable life sentence for second-degree murder, committed when he was under the age of 18, is cruel or unusual punishment in violation of Const 1963, art. 1, § 16. Stovall , supra . His successive motion for relief from judgment is not barred by MCR 6.502(G)(1) because the motion is based on a retroactive change in the law, Montgomery v Louisiana , 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). See Stovall , supra , slip op. at 4, ––– Mich at ––––, ––– N.W.2d ––––. In all other respects, leave to appeal is DENIED, because the remaining questions presented have become moot in light of the relief ordered.
Zahra, J. (concurring).
For the reasons stated in my dissent in People v Stovall , ––– Mich ––––, ––– N.W.2d ––––, 2022 WL 3007491 (2022) (Docket No. 162425), I do not believe defendant's parolable life sentence for second-degree murder committed when he was under the age of 18 amounts to cruel or unusual punishment under Const 1963, art. 1, § 16. While I continue to believe Stovall was wrongly decided, I accept the will of the Court and capitulate that resentencing is warranted under the majority opinion in Stovall .
Viviano, J. (dissenting).
For the reasons stated in my dissent in People v Stovall , ––– Mich ––––, ––– N.W.2d ––––, 2022 WL 3007491 (2022) (Docket No. 162425), I do not believe defendant has overcome the procedural bar to file a successive motion for relief from judgment under MCR 6.502(G) and would therefore deny leave to appeal. But even if defendant could overcome the procedural bar, I would conclude that his constitutional argument fails for the reasons stated by Justice ZAHRA in his dissent in Stovall . For these reasons, I dissent.
Because the rest of my colleagues have reached this question, it is appropriate for me to likewise indicate my view. See In re Certified Questions , 506 Mich. 332, 414 & n 21, 958 N.W.2d 1 (2020) ( Viviano , J., concurring in part and dissenting in part).