Comes v. State, 907 N.W.2d 393

Marlon Comes pled guilty in 1996 to 1995 AA felony murder and robbery and was sentenced to life with possibility of parole and a concurrent 10-year term.
North Dakota law initially required serving 85% of a life sentence before parole eligibility; in 1997 the statute was amended to define "sentence imposed" as the offender's remaining life expectancy calculated by reference to a mortality table.
In 2005 the North Dakota Supreme Court promulgated Admin. R. 51 adopting a mortality table for that calculation.
Comes filed a 2017 pro se post-conviction relief (PCR) petition arguing retroactive application of Admin. R. 51 to his 1996 sentence would constitute an ex post facto increase in punishment and delay his parole eligibility until 2041 instead of 2021.
The district court summarily dismissed the 2017 PCR petition; a motion for new trial/reconsideration was denied. Comes appealed.
The State did not raise the 2-year statute-of-limitations defense below; the district court found the claim was not ripe because no concrete denial of parole had occurred.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether retroactive application of Admin. R. 51 to Comes’ 1996 sentence violates the Ex Post Facto Clause	Comes: Applying the post-1996 mortality-table rule retroactively increases his punishment by delaying parole eligibility, so it is ex post facto	State: (below) argued petition untimely and Admin. R. 51 application does not violate ex post facto (statute-of-limitations defense was raised by State in district-court response to motion)	Court: Claim not ripe — no actual controversy until Comes is denied a parole hearing under his asserted original terms; appeal dismissed
Whether the 2017 PCR was time-barred and whether the statute-of-limitations defense prevents review	Comes: Claimed retroactive application date makes claim timely because effect would occur in 2021	State: Argued petition untimely under the two-year PCR statute; also argued Admin. R. 51 lawful	Court: From the record the two-year limits would bar the petition, but the State waived the statute-of-limitations defense by not timely pleading it below; court addressed merits but dismissed on ripeness grounds

Chisholm v. State, 2014 ND 125, 848 N.W.2d 703 (PCR summary-disposition standards)
State v. Bender, 1998 ND 72, 576 N.W.2d 210 (summary disposition akin to summary judgment)
Owens v. State, 1998 ND 106, 578 N.W.2d 542 (entitlement to evidentiary hearing on material fact)
Lehman v. State, 2014 ND 103, 847 N.W.2d 119 (statute-of-limitations affirmative defense waived if not pleaded)
State v. Burr, 1999 ND 143, 598 N.W.2d 147 (definition and analysis of ex post facto laws)
Bies v. Obregon, 1997 ND 18, 558 N.W.2d 855 (court cannot issue advisory opinions; ripeness doctrine)
Comes v. State, 2000 ND 142, 618 N.W.2d 724 (prior summary affirmance of Comes' earlier PCR)
Comes v. State, 2016 ND 118, 881 N.W.2d 256 (prior appeal affirming dismissal of an earlier PCR)