Trevor Kelly v. Parole Board
334960
| Mich. Ct. App. | Aug 3, 2017Background
- Kelly was on parole; during a spot check agents found firearms/ammunition in a bedroom at his mother’s house. One gun was in an unlocked case but locked with a slide mechanism requiring a key; another firearm was inside a locked hard case that agents could not open. Kelly told agents the items belonged to his brother and that he had seen one of the weapons only in a Facebook video.
- Petitioner admitted access to the bedroom and slept there sometimes, but there was no evidence he had keys, handled the weapons, or attempted to conceal/use them; ALE found probable cause and revoked parole for possession of firearms/ammunition and imposed a 60‑month continuance.
- Kelly sought judicial review; the Wayne Circuit Court reversed the Board’s revocation and remanded, finding legal errors including incorrect application of constructive-possession law, inadequate notice (vagueness), and an unwarranted automatic 60‑month continuance.
- The Parole Board appealed to the Michigan Court of Appeals, which reviewed de novo legal questions and for substantial evidence on factual findings where applicable.
- The Court of Appeals affirmed the circuit court in large part: it held the ALE misapplied the law on constructive possession and that construing the parole conditions to permit revocation for mere presence/proximity would render them unconstitutionally vague as applied; it upheld reversal on those grounds and on the Board’s imposition of a presumptive 60‑month continuance as an abuse of discretion.
Issues
| Issue | Kelly's Argument | Parole Board's Argument | Held |
|---|---|---|---|
| Standard of review applied by circuit court | Circuit court properly reviewed whether Board action was authorized by law | Board argued circuit court applied de novo review and failed to defer to agency | Court: circuit court applied correct authorized‑by‑law standard; Board’s claim rejected |
| Sufficiency of evidence for constructive possession | Constructive possession requires knowing power and intent to exercise dominion/control; evidence here did not meet preponderance standard | Board argued knowledge/proximity was enough for possession | Court: ALE used incorrect formulation; record lacks preponderance proof of power/intention; reversal proper |
| Vagueness / notice (due process) | Conditions prohibiting “possess” must be read with ordinary/legal meaning; parolee lacked notice if “possess” were construed to include mere proximity | Board argued conditions clearly bar possession and being in company of someone with firearms, so Kelly had notice | Court: Conditions are not vague on their face, but as‑applied notice fails if possession meant mere proximity; Board’s interpretation would be unconstitutionally vague; reversal proper |
| Momentary/innocent possession defense | Kelly argued examiner should have considered a momentary/innocent possession defense | Board contended examiner not required to consider such a defense | Court: Michigan no longer recognizes momentary innocent possession as a defense to firearms offenses; circuit court erred to the extent it relied on that defense (harmless error here) |
| Exclusion of witness testimony at preliminary hearing | Kelly: statutory right to present relevant witnesses at preliminary hearing; exclusion violated due process | Board: hearing examiner’s evidentiary rulings are discretionary; no prejudice shown | Court: Examiner violated MCL 791.239a by excluding witnesses, but Kelly showed no prejudice because witnesses later testified at the revocation hearing; error harmless |
| Automatic 60‑month continuance policy / abuse of discretion | Kelly: mandatory 60‑month continuance for firearm violations precludes consideration of mitigating evidence and violates due process | Board: no longer enforces a strict zero‑tolerance automatic five‑year rule; Board retained discretion | Court: record indicates Board applied an effective automatic 60‑month continuance and failed to show individualized consideration of mitigation; mandatory application violates due process and is an abuse of discretion; reversal upheld |
Key Cases Cited
- Morales v. Mich. Parole Bd., 260 Mich. App. 29 (Mich. Ct. App. 2003) (Parole Board is an administrative body; revocation proceedings are contested under the APA)
- In re Parole of Bivings, 242 Mich. App. 363 (Mich. Ct. App. 2000) (parole revocation proceedings considered contested cases)
- City of Romulus v. Mich. Dep’t of Envtl. Quality, 260 Mich. App. 54 (Mich. Ct. App. 2003) (judicial review of agency matters of law is limited to whether decision was authorized by law)
- Natural Resources Def. Council v. Dep’t of Envtl. Quality, 300 Mich. App. 79 (Mich. Ct. App. 2013) (standard of review for agency decisions)
- People v. March, 499 Mich. 389 (Mich. 2016) (constructive possession requires knowing power and intent to exercise dominion or control)
- People v. Flick, 487 Mich. 1 (Mich. 2010) (definition of possession as dominion/control; mere noticing is insufficient)
- People v. Wolfe, 440 Mich. 508 (Mich. 1992) (sufficient‑nexus test for constructive possession; presence alone insufficient)
- Jones v. Dep’t of Corr., 468 Mich. 646 (Mich. 2003) (parolee has limited liberty interest and due‑process rights at revocation)
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (due‑process framework for parole revocation: preliminary hearing and full revocation hearing requiring opportunity to present mitigation)