the people of the state of michigan enact:

CHAPTER X

Sec. 2a. (1) An individual who was convicted of first degree murder in violation of section 316 of the Michigan penal code, 1931 PA 328, MCL 750.316, under a felony-murder theory of prosecution before November 24, 1980 and who is serving a sentence of life in prison without the possibility of parole may file a motion for a new trial in the court of his or her conviction on the ground that the jury was not properly instructed about the prosecution's burden to prove the existence of malice beyond a reasonable doubt. An indigent individual who files a motion under this subsection is entitled to the appointment of counsel upon request.

(2) Not more than 60 days after receipt of a motion under subsection (1), the court shall conduct a hearing on the motion at which the individual has the burden of proving both of the following:

(a) The lack of a proper jury instruction.

(b) That the individual was not concurrently convicted of premeditated murder for the death of the same victim.

(3) If the court determines the individual has failed to meet the burden under subsection (2), the conviction and sentence must be affirmed.

(4) If the individual meets his or her burden under subsection (2), the prosecution has the burden of proving the existence of malice beyond a reasonable doubt.

(5) If the prosecution fails to carry its burden of proof, the defendant's conviction and sentence must be vacated. The trial court may enter a conviction on any lesser included offense as the evidence supports and sentence the defendant accordingly, with appropriate credit for time served.

(6) If the prosecution carries its burden of proof by proving malice beyond a reasonable doubt, the conviction and sentence must be affirmed.

(7) The proofs required under this section must be based on the record developed in the trial court, including transcripts and exhibits. However, if no record is available, the parties may produce witnesses or other evidence as necessary to carry their respective burdens.

(8) An individual who obtains relief under this section is not eligible for compensation under the wrongful imprisonment compensation act, 2016 PA 343, MCL 691.1751 to 691.1757 on the basis of relief under this section.

(9) Either party may appeal the decision of the trial court to the court of appeals as of right.

Enacting section 1. In light of the United States Supreme Court holding in In re Winship, 397 U.S. 358 (1970), that due process requires the prosecution to prove every element of a crime beyond a reasonable doubt and the United States Supreme Court holding in Ivan v City of New York, 407 U.S. 203 (1972), that Winship is to be applied retroactively, it is the intent of the legislature that an individual serving a term of imprisonment of life without the possibility of parole for a conviction of felony murder entered before the Michigan supreme court decided People v Aaron, 409 Mich 672 (1980), is entitled to obtain judicial review of the integrity of his or her conviction.