Lickfeldt v. Department of Corrections

299 Lickfeldt LICKFELDT DEPARTMENT OF CORRECTIONS July 10, 2001, Lansing. August Docket No. 224139. Submitted at Decided 31, 2001, appeal sought. 9:10 A.M. Leave to brought Patricia L. an action the Washtenaw Circuit Court against Department the of Corrections and the warden and the supervisor Facility, seeking Scott records office of the Correctional ordering a writ of mandamus the defendants to terminate immedi- ately imposed plaintiff’s sentences the the for 1986 convictions of 1986, uttering publishing. plaintiff and In the convicted was of two uttering publishing counts of and and was sentenced concurrent prison years. plaintiff terms SV2 to 14 was convicted prison escape mandatory given and consecutive sentence. Sub- sequently, she was for several series of sentenced different crimes parole, being that were committed while some of sentences on being concurrent with each to the other but consecutive sentences already being plaintiff complaint 1998, the served. In filed her for a mandamus, alleging writ of she was to have the that entitled having sentences terminated as a result served the maximum adjustment terms of those time sentences served and good-time court, Morris, J., initially granted credit. The Melinda summary disposition plain- for the defendants on the that basis tiff had not established that she was entitled to mandamus because she not had established that she had served maximum convictions, granted for the sentences but thereafter reconsid- eration, plaintiff presented adequate determined that the had proof undisputed adjusted that terms of maximum April completed for the had sentences 1986 convictions been on granted mandamus, ordering the defendants to terminate appealed. the 1986 sentences as date. The of the 1996 defendants Appeals

The Court of held: 750.193(1) provides imprisoned person 1. MCL that an who escapes felony punishable by guilty breaks of a is imprisonment” years “further more than for not five and that the imprisonment termination, pursu- “shall be served after the law, ant sentences then served.” prison escape Because the sentence was the second in the string plaintiffs of consecutive sentences followed the unambiguous 750.193(1) in its of MCL requirement terminated before must be that the prison escape. prisoner begins to serve the sentence rely provision sentenc- a of the consecutive 2. The defendants on provides statute, 791.234(3), ing that the maximum terms MCL that compute the new maxi- sentences shall be added of consecutive only “discharge issued after the total of and that shall be mum term good time and disci- sentences has been served less the maximum Depart- paroled, plinary prisoner and on a unless the credits” 03.01.135, provides policy directive, PD Corrections ment of prisoner serving “none of the if a consecutive part string shall be termi- sentences which are the consecutive string have been until all sentences in that consecutive nated 750.193(1) and MCL There is no conflict between MCL served.” 791.234(3), 750.193(1) a deals with the termination of because MCL discharge pris- sentence, 791.234(3) with the of a while MCL deals terminations, speaks Although PD 03.01.135 in terms of oner. modifies, extends, policy that it directive is invalid to the extent 750.193(1). with the clear mandate of MCL conflicts Affirmed. X, dissenting, the trial court erred in issu- stated that mandamus, ing the defendants did not have a the writ of because duty perform sought plaintiff. legal the action clear 750.193(1) in the context of MCL use of the word “termination” Legislature that the defendants not indicate an intent does parts string a a certificate of termination while of consecutive issue issuing be served. The of the writ of manda- of sentences remain to plaintiff’s directing

mus the defendants to terminate usurped Department of Corrections’ author- ity department. supervise of the and control the affairs — — of Sentences. Consecutive Sentences Termination Sentences prison for a break or is to be served A consecutive sentence or sentences served at after the termination of the sentence escape; prisoner prison a is entitled to time of the break or underlying initial sentence or sentences terminated on have the underlying completion maximum term or terms of the sen- beginning to serve a consecutive sen- tence or sentences before prison escape (MCL 750.193[1]). a break or tence for Lynn D’Orio, B. plaintiff. for the Opinion of the Court Attorney M. Granholm, General, Thomas Jennifer Casey, Sugierski, L. Solicitor General, and Chester S. Attorney Assistant Jr., General, for the defendants. Neff, P.J, Before: O’Connell and R. J. Danhof*, JJ. appeal right J. Defendants as of a

R. Danhof, summary grant disposition and writ of mandamus ordering immediately plaintiff’s them to terminate sentences from her 1986 convictions. We affirm. prisoner currently serving string

Plaintiff ais consecutive sentences. Her initial conviction was in years 1986when she was sentenced to 3lk to each uttering publishing, for two counts of MCL In 1987, 750.249. she was sentenced for escape, mandatory sentence, consecutive 750.193.She has since added other sentences for sub- sequent adding crimes, some to her consecutive string under MCL 768.7a because she committed the parole. crimes while she was on plaintiff fourteen-year After had served maxi- adjusted good-time mum, for time served and credit, requested original she that defendants terminate her arguing required by sentences, that termination is security statute. This would reduce her level and eligible programs make her for different facilities and security that are not available at her level. The trial agreed plaintiff court with that she had a right to have the 1986 sentences terminated under compel- MCL750.193and issued a writ of mandamus ling comply. agree defendants to We that because of * Appeals judge, sitting Appeals by Former Court of on the Court of assignment. App 247

Opinion the Court plain- 750.193(1), specific language used in MCL be terminated. sentences must tiffs proper of a writ of mandamus is The issuance legal party seeking (1) the writ has clear where specific duty sought, (2) performance right duty perform legal has the clear the defendant requested, (3) the act is ministerial involves act judgment, (4) no no exercise of discretion or remedy equitable, legal might exists, or other Baraga Co v Tax the same result. State achieve 452, 454-455; Comm, (2000). plaintiff right to termina-

Thus, if has no clear if defendants have discretion to terminate tion or inappropriate. a writ of mandamus is We regarding a review a trial court’s decision writ of for abuse of discretion. In re MCI Tele- mandamus Complaint, 396, 443-444; communications 596 NW2d hinges

The outcome of this case on the prison escape felony: makes the statute that person imprisoned prison A in a of this state who breaks prison escapes, prison though escape breaks an is not actually made, escapes, being leaves the without dis- process attempts charged law, prison, due to break attempts prison, felony, punish- guilty from of a imprisonment years. able for not more than 5 imprisonment term shall be served of further termination, pursuant law, the sentence or sentences added).] 750.193(1) (emphasis then served. [MCL Plaintiff’s sentence for this crime became the second consecutively following string, in her her 1986 requires unambiguously the sentences. This statute person original before the sentences to be terminated prison escape. begins to serve the sentence for Opinion the Court the Legislature’s the use of word “termi- Although in nation” in is MCL 750.193 conclusive matter of plaintiffs sentence, we review defendants’ arguments mandated termination because the against require broader context does not this result every plaintiff’s in string. sentence consecutive Defendants the consecutive argue sentencing statute, 791.234, requires them to maintain the entirety, in its and that string Depart- policy directive, ment of Corrections’ PD 03.01.135, implements requirement. this The consecutive sen- tencing part: statute reads relevant prisoner prisoner subject disciplinary If a than a other terms, time is sentenced for consecutive whether received during origi- at the at same time or time the life of the parole sentence, jurisdiction nal board has over the prisoner prisoner purposes parole when has terms, served the total time of the added minimum less the good disciplinary time and credits allowed statute. The maximum terms of sentences shall be added to com- pute subsection, the new maximum term under this discharge only shall issued be the total the maxi- been, mum good time has served less and disci- plinary paroled credits, prisoner unless the is and dis- charged upon satisfactory completion parole. [MCL 791.234(3) (emphasis added).] policy directive issue differs somewhat: prisoner serving sentences,

OO. If a is on concurrent non-controlling sentence(s) shall be terminated on the max- good regular disciplinary imum minus time or credits which could be earned. prisoner serving

PR If a on consecutive part none of the sentences which are consecutive string shall be terminated until all sentences that consec- prisoner string serving utive have been served. If a two or 247 Opinion of the Court series, the non- consecutive sentence more different be termi- controlling shall series of consecutive maximum, appropriate as described above. nated on than one However, to more if a sentence is consecutive remain active until that sentence shall series of served, controlling has been even consecutive series non-controlling sentence(s) consec- though other in the 03.01.135, § series is terminated. III.] utive [PD have the longest are those that Controlling sentences sentences; is, pris- that for a of concurrent maximum concurrently years two to one to oner sentenced the latter another, to fourteen for one crime three plaintiff’s controlling length is the sentence. part by original her string is controlled consecutive fourteen-year maximum sentence from 1986. PD 03.01.135 and defendants that

Although argue correctly analogous, plaintiff are 791.234(3) MCL only discharges, not notes that the statute mentions request does not she be terminations, she any from of her sentences. The statutes “discharged” prisoners are support and case law the distinction: Fur and sentences are “terminated.”1 “discharged,” sentencing statute clarifies thermore, the consecutive the issue in a later subsection: subject disciplinary prisoner prisoner

If a other than a remaining 1 more terms to serve time has consecutive parole serving, the term he or board addition to she may prisoner presently terminate the sentence the serv- has ing time after the minimum term of the sentence added).] 791.234(5) (emphasis served. been [MCL parallels headings “Discharge language; its include PD 03.01.135 this also, Non-Controlling Sentences.” See Prisoners” and “Termination of e.g., 791.265g(e). Opinion of the Court distinguishes Standing between alone, MCL791.234 early clearly puts “discharge” “terminate,” and When of defendants. the discretion termination at together viewing find no con- we with MCL750.193 it discharge termination from is different flict because although terminate defendants must and because imposing before sentence they terminate still have discretion sentence, contrast, the maximum. before policy terminations, directive concerns defendants’ squarely discharges, MCL conflicts with and it not invalid to PD is therefore 750.193. 03.01.135 conflicts with that extends, it or modifies, extent that Corp Dep’t Trea- Industries statute. Guardian of App (2000); sury, 244, 254; 621 NW2d 243 Mich Ed, Inc v State Bd Clonlara, of (1993). n by supported 768.7a, is Our conclusion for crimes which mandates consecutive person escaped from committed a who has parole: or is on who penal person a or

(1) A who is incarcerated in reforma- tory escapes state, from an in this or who such institution institution, during a incarcera- who commits crime that punishable by imprisonment which in a tion or reformatory shall, upon penal in this state or institution crime, provided be sentenced as law. conviction imprisonment imposed for crime shall The term of expiration of the term begin or terms of to run at the imprisonment person serving or has for which the reformatory penal institution become liable to serve in a in this state. person

(2) If a is convicted and sentenced to term of imprisonment felony person while was committed offense, parole previous for a the term on from a sentence imposed begin imprisonment for the later offense shall 247

Opinion of the Court eoopiration remaining portion run the term imprisonment imposed previous [Empha- offense. ses added.] statute, this expressly used the “expiration”

term rather than pre- “termination.” We sume phraseological that the leg- distinction reflects a islative intent concepts differently. to treat these Tyler v Livonia (On Public Schools Remand), App 697, 701; 561 NW2d 390 We therefore con- plaintiffs clude all sentences, except for the serving sentences she was when she was con- of prison escape, merely victed they as are “expire” completed, effectively moving the from string along sentence to sentence. MCL 768.7a require does not termination of although earlier sentences, under may MCL 791.234(5), defendants terminate those sentences at their discretion once the minimum terms have been served. This significantly differs from MCL 750.193(1), where the Legislature man- plaintiffs original dated that sentences must termi- nate before begins she to serve her sentence for prison escape. Plaintiff has a clear right to that termination; defendants have no in the discretion Thus, matter. the trial court correctly ordered defen- plaintiffs dants to terminate sentence, which she was serving at the time her conviction of prison escape. question

The remains whether the effective date termination should be the maximum or the individual’s adjustments actual maximum with credits. This issue not parties was raised the in this case is moot possible because the maximum term, years, passed. fourteen has trial since The court April 20, 1996, determined the as effective date be- by O’Connell, adequate plaintiff and undis- submitted cause it found adjusted puted proof would have that her no to find error in date. We see reason ended on that this determination.

Affirmed. concurred.

Neff, P.J., (dissenting). respectfully I I dissent. J., majority opinion disagree join I the because cannot requires that MCL the with its conclusion Michigan 750.193(1) Department a of Corrections issue (mdoc) individual has termination once an certificate of major The maximum term of sentence. served the ity’s contrary holding Legislature’s to the intent seq., enacting § Penal et Code, 750.1 nothing plain language of in the the stat and there is duty imposition supports on of such ute that have a defendants do not clear defendants. Because by plaintiff, duty perform sought legal action I of a writ court’s issuance would reverse trial mandamus.1

I. FACTS AND PROCEDURAL HISTORY seeking a writ of filed the instant action Plaintiff February complaint, 3, 1998. In mandamus on required by plaintiff alleged law defendants were had a sentence once she served to terminate2 action, filed instant term. When she maximum regarding a writ of mandamus A court’s determination trial MCI of discretion. In re Telecommu- this Court an abuse reviewed Complaint, 596 NW2d nications dispute parties is terminated not that an inmate’s sentence do contin- as an matter while inmate when it out administrative is closed remaining sentences. ues to consecutive serve 247 J. by O’Connell,

Dissent plaintiff in was incarcerated the Scott Correctional Facility Plymouth, Michigan. in plaintiffs

A review of storied criminal con- record, sisting provides of numerous consecutive backdrop analyzing plaintiff’s useful claim. According plaintiff record, to the was of convicted uttering publishing, two counts MCL 750.249, 1986, and was sentenced terms of concurrent years’ imprisonment. plaintiff 3V2to 14 In 1987, was Michigan’s escape convicted under statute, 750.193, MCL and sentenced an additional consecu- years’ imprisonment. tive term of nine months to five plaintiff larceny In 1990, was convicted of of a rental vehicle, 750.362a, MCL and was sentenced to a term years’ eight imprisonment. months to two plaintiff writing was convicted also an insufficient 750.131(3)(c),and check, funds MCL was sentenced to years’ eight imprisonment. months to two These concurrently, sentences were to be served but con- secutively prison to the conviction. Addition- ally, plaintiff was convicted of another count writing an insufficient funds check, MCL 750.131(3)(a), and sentenced ato term of one two years’ imprisonment. plaintiff Also, in was con- making procure victed a false statement to a finan- cial transaction device, 750.157v, and sentenced years’ imprisonment. to a term of two to four summary disposition pursu- Defendants moved for plaintiff 2.116(C)(10), arguing ant to MCR was not entitled termination of her sentences. The trial initially granted concluding court defendants’ motion, plaintiff’s ripe claim was not because she had not uttering served the maximum sentences for the publishing plaintiff convictions. After re- moved for by O’Connell, writ of manda- court issued a consideration, the trial plaintiff’s to terminate ordering defendants mus April publishing, effective uttering sentences for 1996. 20, principles of

n. review and standard of STATUTORYCONSTRUCTION regarding a trial decision review de novo court’s We Dep’t summary Spiek v disposition. a motion for 331, 337; Mich 572 NW2d 201 Transportation, 456 defendants 750.193(1) requires . (1998) Whether a of termination once an individual to issue certificate presents maximum term of has served the subject is also statutory an issue of construction that 464 Sterling Heights, novo. Haliw v review de v 297, 302; (2001); Donajkowski 627 NW2d 581 Mich 243, 596 NW2d 574 Co, 248; 460 Mich Alpena Power statute, of a construing language . When (1999) principles guidance. are of following well-settled statutory are well established. The rales of construction construing rale, primary our task in The foremost Leg statute, give intent of the is discern and effect Co, Michigan Telephone Murphy 447 Mich v Bell islature. W 93, 98; (1994). also v NW2d 310 See Nation 523 Co, 489, 494; (1997). This task Mich 563 NW2d 233 D E Electric454 begins examining language of the statute itself. provide of its most reliable evidence words of a statute “the 576, 593; Turkette, 101 . v 452 US intent. . .” United States (1981). language the stat 2524; L Ed 246 If the S Ct 69 2d unambiguous, must have intended ute is clearly expressed, must be meaning and the statute judicial is No construction as written. enforced Facility, Michigan required permitted. Tryc v Veterans’ Only 135; 129, (1996). where 545 NW2d 642 may properly go ambiguous a court legislative beyond words of the statute ascertain 247 Mich Corrections, 93; intent. Luttrell v 421 Mich Valley Ward, NW2d 74 Co v Foods 460 Mich [Sun 236; (1999).] 596 NW2d 119 interpret This Court must words a statute according to their ordinary meaning.” Her- “plain Co Bay ald v City, 463 Mich 118; NW2d 873 (2000), citing MCL 8.3a and Turner v Auto Club Ins Ass’n, 22, 27; 528 NW2d 681 (1995); see also Massey Mandell,

(2000). Moreover, Supreme our recently Court has importance articulated the of construing a word or phrase in a proper statute in its context. understanding

“Contextual generally statutes grounded in the doctrine of noscitur sociis: is known ‘[i]t associates,’ from Dictionary its (6th ed), see Black’s Law p 1060. principle This doctrine stands for the that a word or phrase given by meaning is setting.” its context or v [Brown Comm’rs, Co 430, 437; Genesee Bd 464 Mich 628 NW2d of (2001) (opinion by Corrigan, C.J.), quoting Tyler v Livo- Schools, nia 390-391; Public 459 Mich 590 NW2d 560 (1999).]

Further, may this Court not “read [anything] into the statute that is not within the manifest intent of the gathered as from the itself.” [statute] In re Juvenile Costs, Commitment App 420, 427; 613 NW2d 348 (2000). MCL 750.193 is a criminal part statute that is of Michigan’s Code, Penal MCL seq. 750.1 et Consequently, it is to be “construed according import to the fair of terms ... to effect [its] objects the People 750.2; the law.” MCL see also Armstrong, App 121, 127; 536 NW2d 789 Lickpeldt by

in. ANALYSIS majority defendants its conclusion that bases The plaintiffs required sentences to terminate are interpretation publishing uttering of the on its plain prison escape At the time statute, MCL750.193. February 1998, in action filed the mandamus tiff part:3 pertinent provided 750.193(1) in imprisoned prison breaks person state who in a this A though escape is not escapes, breaks an prison and being actually made, escapes, prison without dis- leaves the law, attempts prison, process break or charged to due felony, pun- prison, guilty attempts of a from to imprisonment not more than 5 ishable further imprisonment shall be years. term law, termination, pursuant the sen- to served after being then served. tence [Emphasis supplied.] majority, § According imprisonment stating of further “[t]he term [imposed pursuant shall be served section] this pursuant law, termination, requires then served” sentences or sentences sentence before defendants to “terminate prison escape imposing Ante sentence.” disagree. (emphasis supplied).4 I “termination” is not defined Because the word plain required give its it this Court statute, ordinary “taking meaning, into account the con- Hog Co used.” Jackson word[] [was] text in which the App 72, Co, v Consumers Power Producers 3 subsequently PA effective amended 1998 MCL 750.193 was January 8, 1999. 4 dispute parties when a terminated defen- The do not sentence is of termination. dants issue a certificate 312 247 Mich App by O’Connell, (1999) (citations omitted); 85; NW2d see also supra Massey, discerning plain at 380. In the word’s ordinary meaning, appropriate isit to consult the dictionary Popma v Ass’n, definition. Auto Club Ins (1994). 521 NW2d 831 460, 470; As relevant College context, this Random House Webster’s Dictionary (2d 1997) defines ed, termination as “the being fact of end, terminated” and “an close conclusion.” majority holding plain language in errs that the requires

§of 193 defendants to issue a certificate original termination for an sentence before an individ begins prison escape. ual a serve sentence for In plain unambiguous I contrast, believe lan guage Legislature’s §of 193 reflects intention that imposed § a sentence conviction under 193 be consecutively served to the sentence for which the originally imprisoned. People individual was See v App (1995) Connor, 419, 428; Mich 531 NW2d 734 (“[T]he prison escape sentence for must be served consecutively to the sentence or sentences then People served.”); see also Mandell, 166 words, other Legislature’s use of the word “termination,” proper viewed in its context, indicates that an ensu ing prison sentence for should be served at original Notably, the close of the sentence. there is nothing suggesting § Legis the text that the required lature intended that defendants be to issue certificate of termination once the maximum term completed.5 sentence is A review the 5 Additionally, disagree majority may I with the extent that it ordinary plain meaning conclude that the “termination” word 313 Corrections by O’Connell, J. Dissent law with case history 193, together of § legislative my conclusion. supports statute, interpreting 6 prison of the codification earliest Legislature’s The pertinent part: in provided escape statute prison any imprisoned the state for person, being in If escape, prison or life, and any shall break term less than for actually made, escape or prison, though be no shall break escape therefrom, attempt he shall, by force and violence imprisonment punished by in the state further be shall by exceeding years, or fine not prison than three not more actually every prisoner who shall and dollars; five hundred prison, shall, escape aforesaid, his return to such as unexpired long imprisoned time as remained as be for escape, besides sentence, time such at the his of former RS, imprisonment as term such [1846 aforesaid. further supplied).] 156, (emphasis § ch 24. language of the plain reading my opinion, the Leg- reflects unambiguously 24 RS, 156, ch § prison for imposed that a sentence islature’s intention of the completion at the escape be served administratively by out process close which defendants to the § 193 refers an inmate’s sentence. prison escape in 1840. See Legislature statute first enacted the escape provided: prison statute 4. enacted in § 1840 PA As any prison imprisoned any person being in the state for That if escape, prison punishable death, or break with shall crime not by actually made, shall, escape prison though be or shall no break therefrom, escape attempt he or she so violence force and by exceeding punished shall, conviction, offending fine not be on imprisonment dollars, in the state hundred or five years, both, exceeding prison, or at the discretion three not actually prison any prisoner court; break when shall court, breaking prison, in addi- escape, without escaping, breaking prison and shall the sentence tion to for may long imprisonment as a time as sentence such offender sentence, unexpired, the time his have remained former escape. [Emphasis supplied.] such already which the inmate was incarcer substantially ated. This remained until when same7 enacted 1955 PA which amended the statute to read pertinent part:

Any imprisoned person, being of this state any term, prison escape, break for who shall or break prison though escape actually made, escape, no be or shall prison being discharged or shall leave said without from prison process law, attempt said due shall break or to prison escape therefrom, felony, pun- guilty or shall of a be imprisonment ishable not more than 3 further for years. [Emphasis supplied.] 1955 PA 264 thus the language § streamlined only that providing an individual convicted under the punished by statute be imprisonment.” “further How- ever, year one later the PA Legislature enacted 1956 again which once amended the of the language stat- ute provide to as follows: imprisoned Any person, any prison being in of this state any term, prison escape, for who shall break or break

prison escape though actually made, no shall be or shall escape, prison or being discharged shall leave said without prison by process law, from attempt said due or shall prison escape therefrom, break guilty be shall of a fel- ony, punishable by imprisonment years, for not more than 3 imprisonment such to be served the termina- tion, pursuant law, any sentence or sentences then [Emphasis being supplied.] served. Consequently, PA 6 represented occa- first sion inserted language directing CL 750.193. See 1857 CL 5843; 1871 CL 7676; 1915 CL 14995; 1929 CL 16586; by O’Connell, J. pursuant imprisonment imposed § that further ... of sentence after the termination “be served use of this Legislature’s served.” The . . . then Indeed, a review of the was not fortuitous. language Legis- that the law leads me to conclude relevant case statute in 1956 to of the lature amended imposed pursuant its intent manifest completion of the original 193 be served after the to § sentence. example, People Shotwell,

For defendant that the (1958), argued his authority ordering exceeded its trial court consecutively be served prison escape sentence for a fraud conviction. Our his predecessor 193,8 Supreme Court, construing § and offered the rejected argument, following this purpose of the concerning observations statute. escape applicable language it

We think is also evident from legislature contemplated statute itself that the prison. imprisonment escaping It said so. We “further” fairly legislature sought think it also obvious that 8 language 750.193, The Shotwell Court considered the of 1948 CL pertinent part: provided in which Any imprisoned any prison any person, being of this State for term, prison escape, prison though who shall break or break actually escape, escape made, no be or shall or shall leave said prison by process

prison being discharged due of without from said attempt prison escape therefrom, law, or shall be or shall to break punishable by imprisonment felony, guilty more of a further for not every prisoner actually prison years, or than 3 who shall break attempt prison, attempt escape escape as afore- or to break or prison, imprisoned long said, be for as shall after his return to such unexpired sentence, his former at the time of a time as remained of breaking, escape, attempt escape, such or to break or besides such imprisonment further term of as aforesaid. App 247 316 299 Mich by provide prison escapes. A some sort deterrent con- trary objective many prisoners view would defeat this since immunity, escape impunity with could thus both since any might easily their devour interim escape concurrent In view sentence. fact the offered put upon premium defendant tend to would act of escape: it, well; prisoner If a made all be if he would should caught, be no further time would be We do not think drawn. legislature any ever wanted to reach such result. At we reach least hesitate to such a result inference. [Id. 46-47] Evans, 187-188;

See also In re 185, NW2d panels Other this Court have construed the cur- rent § it manifests concluding Legislature’s imposed intention that sentences escape consecutively an run conviction to the original sentence for which the was defendant incarcerated. People Passalacqua, App v 634, 635; Mich panel NW2d 59 (1973), opined: of this Court punishment escape for the offense of is an exception requirement. to the concurrent sentence MCLA 750.193; provides part prison escape MSA 28.390 punishable by imprisonment... “shall be ... to be termination, pursuant law, served sen- (Emphasis supplied.) tence sentences then served. opinion exactly says. In our this statute means what it prison escape The defendant’s sentence for is to start at the completion serving of the sentence he was at the time of prison escape. his

See v People Biniecki, App also 336- 337; 192 (1971) NW2d 638 (language statute “clearly requires a consecutive . . .”); People Bachman; “the (1973) (in 750.193 Legislature unambigu- v Corrections by prison escape ously [a] directed that completion of former sentences at the commence People being ”); Pruitt, ‘then served’ App (1970) (language § 516; 179 NW2d 22 of 193 that a sentence for conviction under this indicates exception concurrent sentence is “an to the statute requirement People .”); . . v Andrews No App (1974) (MCL 729; 218 NW2d 383 750.193 imposed “provides that sentences for the crime of prison escape are to be served after the termination by defendants”). of terms then served Returning present agree pre- I case, to the with the panels vious of this Court who have concluded that language Legislature’s § of 193 reflects the inten- imposed pursuant a sentence to that tion that section consecutively be to an inmate’s served sen- my respectful opinion, primary In tence. short- majority opinion coming willingness of the is its meaning § read into 193 a that was not intended Legislature. statute is clear and text plain unambiguous. Nothing in the statute mandates that defendants must terminate an individual’s sentence once maximum term has Consequently, disagree major- I been served. with the ity’s “[pjlaintiff statement that has a clear right [of sentences].” to . . . termination her Ante at 306. Legislature’s

A review of the use of the word “ter- § mination” in the context of 193 further leads me to Legislature conclude that did not intend that required defendants be to issue a certificate of termi- previously supra. Brown, indicated, nation. See As I part Michigan’s § Code, 193 is Penal MCL 750.1 seq. my opinion, et had the intended to 247

Dissent J. require defendants to terminate a sentence once its served, maximum term was it would stated have so. Presumably, appropriate place the a such mandate Department would been in have the of Corrections 791.201 act, seq., MCL et where the Legislature has legislation concerning, enacted other among things, jurisdiction, procedures the mdoc’s governing parole, Further, the location correctional facilities. as defendants observe in brief appeal, their on the Legis lature manifested its intention that defendants be required issue a certificate of once an discharge parole. has completed individual See MCL 791.242. Conversely, there is no such manifest indication with respect Rather, to certificates of termination. as the majority concedes, MCL to the 791.234(5)9 leaves dis cretion of the MDOC the decision whether to terminate presently served an inmate.

Recently, People McIntire, v 461 Mich Supreme NW2d (1999), our Court cautioned lower courts from into reading the text of statute a clearly was not intended meaning Legisla ture. I especially per find Court’s comments to be tinent in the instant case. principles statutory . . . construction

“[Traditional respect Legisla- force courts the constitutional role of the policy-making government ture as a branch con- judiciary encroaching strain the from on this dedicated sphere responsibility. Any of constitutional other nontextual 791.234(5) provides: prisoner prisoner subject disciplinary If a other than a time remaining has 1 or more consecutive terms to serve in addition to parole serving, may or she is term he board terminate prisoner presently serving sentence the at time the min- [Emphasis supplied.] imum term the sentence served. has been v Corrections by O’Connell, necessarily will invite approach construction unstated, probable, speculation regarding but judicial consequence likely that a Legislature with the intent of the prefer policy impermissibly own substitute its will court 499, 509; Detroit, 286 NW 805 Cady See v ences. opinions that of (‘Courts their (1939) cannot substitute body policy’).” [McIntire, questions of legislative on opinion 153, adopting dissenting of now Jus supra Young App 71; People McIntire, tice (1998).] supra, I will not con McIntire, Like the Court in beyond the clear to read majority’s done the decision unexpressed legisla to find “an text of MCL 750.193 to terminate a required intent” that the mdoc tive has been served. once the maximum term McIntire, supra, 461 Mich 153. my I wish to concern that

Additionally, highlight to issue a cer- court, by ordering the trial defendants in the plaintiff’s termination for sentences tificate of authority any statutory such requiring absence of As separation powers of doctrine. action, violated my dissenting opinion concurring I observed Secretary State, 230 State AFL-CIO v Michigan of App 1, 31-32; (1998): Mich 583 NW2d 701 powers principle separation . . of . forms “the of [T]he system government.” our fundamental framework of Co, Mich v State Farm Mut Automobile Ins O’Donnell rule, 524, 541-542; general (1979). As a 273 NW2d 829 principle recognizes provinces legislative, the distinct judicial, government, and man and executive branches of “control, attempt direct or dates that no one branch Mellon, of another. Massachusetts v restrain the action” principle 447, 488; (1923). L Ed 1078 This US 43 S Ct per expressly into constitution: “No is embedded our state powers powers exercise exercising of one branch shall son expressly except as properly belonging to another branch App 247 by provided in this constitution.” § Const art 2. As our Supreme noted, purpose separation Court has powers judiciary is make “to certain that the does not sub- judgment stitute its for that of the as to what is O’Donnell, supra prin- best or what wisest.” is at 542. This ciple judiciary attempts is likewise when the offended judgment substitute its the executive branch. [Emphasis supplied.] The MDOC was chapter created 12 of the Execu- tive Organization Act, MCL 16.375, and is an adminis- trative agency within the executive branch of Michi- gan’s government. Const 1963, art In2; re Parole § Bivings, App 363, 372; 619 NW2d 163 (2000); Hopkins v Bd, Parole 629, 636; 604 NW2d On appeal, defendants maintain they retain the discretion to terminate an inmate’s sentences virtue of policy directive 03.01.135, pertinent portion of provides: which prisoner serving If a sentences, on consecutive none of part

the sentences which are of the consecutive sentence string shall be terminated until all sentences in that consec- string utive prisoner have been serving served. If a two or more series, different consecutive sentence the non- controlling series of consecutive shall be termi- appropriate maximum, nated on the as described above. However, if a sentence is consecutive to more than one series of that sentence shall remain active until controlling served, consecutive series has been even though sentence(s) the other non-controlling in the series is terminated.

I agree position. with defendants’ By MCL enacting 791.203, the Legislature provided the director of the authority MDOC “to supervise and control department.” affairs of the Dep’t See Blank v Cor rections, 462 Mich 116; 611 NW2d 530 (2000) Dep’t by O’Connell, also by Kelly, delegated

(opinion J.). authority rules for the the director to create to operation general and of the “control, management, department.” MCL see 791.206(l)(a); affairs of supra 116; Boyd Comm, v Civil Service Blank, at also 235; Further, 559 NW2d 342 App 226, Mich the mdoc has exclusive provides MCL 791.204 Dearden institutions,” jurisdiction “penal over Detroit, NW2d 139 257, 265; (1978), Judicial parole. Additionally, all matters relating Attorneys Michigan, Ass’n v Supreme recognized our Court (1998), power of each branch of within its government “[t]he separate sphere necessarily includes managerial authority carry operations.” administrative out its my MDOC, part as of the executive opinion, implement directives branch, policy entitled sentences, Bivings, the termination regarding supra to the con- 373, because such action relates department. trol, operation of the management, a writ 791.206, Consequently, issuing 791.203. directing plain- of mandamus defendants to terminate usurped tiff’s I believe the trial court power supervise, manage, mdoc’s exclusive plain- department. control the affairs of the Because legal tiff has not demonstrated that she “has clear duty to be performance sought to the right Corrections, compelled,” White-Bey v I would App 221, 223-224; (1999), 608 NW2d 833 of a writ of reverse the trial court’s issuance mandamus.

Case Details

Case Name: Lickfeldt v. Department of Corrections

Court Name: Michigan Court of Appeals

Date Published: Nov 15, 2001

Citation: 636 N.W.2d 272

Docket Number: Docket 224139

Court Abbreviation: Mich. Ct. App.