*1
v Idziak
PEOPLE v IDZIAK
(Calendar
4).
7,
Argued April
Docket
July
No. 137301.
No. Decided
31, 2009.
pleaded guilty
Patrick L. Idziak
in the Kent Circuit Court to armed
robbery
possession
during
and
of a firearm
the commission of a
felony,
parole.
sentencing
both committed while he was on
After
defendant,
court,
Johnston, J.,
grant
the
Donald
did not
him
against
769.11b,
credit
jail
the new sentences under MCL
statute,
days
jail
spent
credit
for the 98
he
in
between his arrest
sentencing, concluding
and
detainees were not entitled
to the credit. The court also concluded that it lacked common-law
discretion to
Appeals
award credit. The Court of
denied the
application
appeal
defendant’s
unpublished
for leave to
in an
(Docket
285975).
order,
25,
July
entered
Supreme
No.
The
granted
(2009).
appeal.
Court
the defendant leave to
confinement Thus, no there was after he was arrested. out his earlier sentence jeopardy violation. double differently from criminal defendants are situated 4. Parolees permission parole. a to leave Parole is conditional who are not on her sentence. prison, parolee out his or and a continues against parolees their earlier sentence receive credit Because parole are not on and defendants who under MCL 769.11b, jail parolees and defen- both credit under MCL receive parole for time served. It was are not on receive credit dants who parolees Legislature and defendants who to treat rational for the differently regard. parole No statute makes a in this are not on pleads guilty parolee and one who between a who distinction jail go of credit trial. To the extent that the denial chooses to in against parolee’s minimum sentence results some new eligibility reaching parole than others because of earlier violators equal arbitrary factors, amount to a violation of it does not Any not arise from a protection. difference in treatment does by Legislature. classification created Affirmed. Cavanagh, concurring joined in Justice Chief Justice Kelly, part, agreed parolee
part dissenting that a incarcerated on in charges to credit under MCL 769.11b for time is not entitled reason, however, spent jail awaiting is because that in trial. The parolee’s time served toward the time should he considered 791.234, aggregate under MCL minimum sentence calculated again eligible parole. be before he or she is which must served Therefore, spent receiving allow credit for the time would credit for the same time. Chief Justice double Kelly unnecessary thus to address the defendant’s noted that it was applica- challenges, but stated that the current constitutional also sentencing parolees may be consecutive scheme for tion of the similarly disparate treatment of situ- unconstitutional because of parolees. be directed to recalculate The Parole Board should ated parole-eligibility date. the defendant’s dissenting, disagreed with the conclusion Justice Markman, spends apply time to a defendant who that MCL 769.11b does not jail awaiting sentencing committed while on for a new crime any person unable to parole. who is denied or The statute entitles v Idziak person furnish bond for the offense of which the is convicted to regardless receive person the credit of the reason the cannot post bond require for the new offense. It does not post defendant be denied or unable to bond because of the convicted, offense of which the defendant is such as because of detainer. Since the defendant in this case was unable to bond, furnish against he should have received credit his new spent jail. sentence for the Additionally, under MCL 768.7a(2), the Parole Board should be ordered to undertake an affirmative “remaining portion” determination of what is the the defendant’s Only sentence that he must serve. after completes remaining portion the defendant of his first begin sentence can his new sentence and the credit be applied. begins Once the defendant his new sentence and serves equal term, an amount of time to the new minimum he will then 791.234(3). parole eligible become under interpreta- This statutes, tion these three majority, gives unlike that of the complex full effect to difficult and scheme estab- Legislature lished Equally signifi- violators. cantly, majority’s opinion fails to address the Parole Board’s practice arbitrarily determining how much time remains to parolee’s sentence, be served on a first which leads to a identically situation in which may situated defendants he *3 widely disparate treated in a respect eligibility fashion with entirely for arbitrary because of serendipitous fac- tors culpability unrelated a severity defendant’s or the of a defendant’s crimes. — Awaiting — Parole Jail Credit Statute Credit for Time Served Trial on a New Offense. parolee A who is convicted of imprison- and sentenced to a term of ment for an offense committed serving while on resumes or her maximum parolee sentence on the date the offense; parolee arrested for the new is not entitled to credit against his or her new minimum sentence for the time served in jail (MCL sentencing between arrest and on the new offense 791.238[2]). 769.11h, Cox, Michael A. Attorney General, B. Restuccia, Eric General, Solicitor William A. Forsyth, Prosecuting At- torney, K. Timothy McMorrow, Chief Appellate Attor-
ney, and Lynn T. Hopkins, Assistant Prosecuting Attor- ney, for the people. 484 Mich op
Opinion the Court Dagher- Jeanice Gay Defender Appellate State defendant. for the Margosian) Amici Curiae: Restuccia, General, B. Eric Cox, Attorney A.
Michael Assistant Solicitor General, Boynton, Henry Solicitor Schettler, Jr., Attor- Assistant General, and Charles C. of Corrections. General, Department ney Attorneys Defense for Criminal G. Friedman Stuart Michigan. Munson, persona. in propria L. Curtis a case, we consider whether In this J. CORRIGAN, to a term of and sentenced is convicted who parolee while on felony committed for a imprisonment statute, MCL jail credit entitled, Michigan’s under his arrest jail after for time served 769.11b, to credit sentencing for that offense and before on the new 791.238(2), that, under We hold offense. on the date his earlier sentence resumes parolee as long offense. As criminal arrested for new he is sentence, he earlier parolee’s time remains on incarcerated, eligibility of his regardless remains is not to furnish it. Since ability or his bond or unable to being denied “because of being held apply. does not bond,” credit statute furnish common law dis- court lacks Further, mini- new against parolee’s credit grant cretion to statutory contravention mum sentence against credit the denial of Finally, scheme. jeopardy the double does not violate minimum sentence of the United clauses protection equal clauses or the *4 Const, and Ams V US Michigan constitutions. States or 1, §§ 2 15. 1963, art and XIV; Const y Idziak Opinion of the Court I. FACTS AND PROCEDURAL HISTORY 23, 2006, About 3:00 a.m. on November while defen- dant parole,1 Young, was on he confronted Brenda an Bow in employee Alpine Township, Tie Tavern closing Kent she was County, night. as bar for only She was person present still the bar. Defen- dant when approached Young shotgun with she opened the door to out the He ques- back take trash. table, tioned her keys jukebox, about pool machine, cigarette lottery told machine. She him that she had the only key lottery to the machine. She opened machine, surrendering the cash inside. open Defendant pried jukebox with a crowbar and took the cash inside. He tied up then and stole Young her car. She freed herself about 40 minutes later and called the An police. investigation revealed defendant’s crime, police involvement him arrested on 28, November 2006.
Defendant pleaded guilty robbery, armed 750.529, and possession of a firearm the com- during 6, mission of felony, 2007, MCL 750.227b. On March the court sentenced him term years’ to a of 12 to 50 imprisonment for the robbery armed conviction and the mandatory term two-year felony- consecutive for the firearm conviction. The not grant court did against defendant credit the new sentences the 98 days he spent sentencing. between arrest and appellate
Defendant’s
counsel moved for postjudgment
relief, arguing
credit was
mandatory under
and,
alternative,
769.11b
in the
that the court had discre-
tion to
credit. Citing People Seiders,
award
v
262 Mich
702;
(2004),
App
554 Opinion of the Court 635; (2008), the Court 754 660 which App Mich NW2d not entitled to parole held that detainees are Appeals of 769.11b, sentencing court credit under MCL jail it The court also ruled that lacked denied the motion. because MCL law discretion to award credit common 768.7a(2) parolees for consecutive mandates on The Court of parole. commit new felonies while who appeal for leave to application denied defendant’s Appeals Idziak, unpublished order of the lack of merit. v People for (Docket July 25, 2008 No. Appeals, issued Court 285975). OP
II. STANDARD REVIEW statutory interpre- Court questions This reviews 631; Stewart, 624, de novo. v 472 Mich 698 People tation (2005). 340 also review constitutional issues NW2d We Harvey Michigan, 1, 6; 469 664 NW2d de novo. Mich (2003).
III. ANALYSIS A. INTRODUCTION arises when appropriate The issue credit impris- is convicted of a crime sentenced person onment, granted and then convicted sen- felony a new committed while on prison tenced arrest, After time in parolee serves parole. awaiting disposition charges. of the new criminal The whether, issue is after conviction of the new criminal parolee against receives credit his new charges, jail. the time he This minimum sentence for served significant problem prisoner’s because new If date is defendant here is awarded eligibility affected. minimum for the against his new credit v Idziak Opinion of the Court eligible jail, he will become days he served if he is such credit. granted earlier than not days AND THE PAROLEBOARD THE DEPARTMENTOF CORRECTIONS B. (DOC) calculates the The of Corrections Department to a date of a sentenced parole eligibility while felony for a committed imprisonment new term of grant has no discretion to The Parole Board parole. do not take issue parties until that date. The Board. of the DOC or Parole practices with the *6 critical functions is nevertheless Understanding their presented. the issue understanding to the subject juris- becomes to general, prisoner In a period Board after he “has served a diction of the Parole the imposed by minimum sentence time to the equal of 791.234(1). to A sentenced prisoner court. .. .” MCL “whether received imprisonment, terms of consecutive during time the life of the any the same time or at at sentence,” jurisdiction to the of the subject is the total prisoner has served Parole Board “when . .” MCL added minimum terms. . time of 791.234(3).2 791.234(3) 791.234(1) apply prisoner to a “other than MCL and MCL prisoner subject disciplinary is prisoner time.” Where such a a to concerned, any “good parole eligibility calculation takes into account 791.234(2) disciplinary prisoner earned. and credits” the has MCL
time
791.234(4)
“subject
disciplinary
apply
prisoner
time.”
to a
to
and MCL
791.234(3) throughout
Although
and
we refer to MCL
MCL
equally
opinion,
analysis
apply
of
and decision
to both sets
this
our
language
prisoners
provisions
on which
and both classes of
because
rely appears
provisions.
of
we
in both sets
(1)
subject
disciplinary
“prisoner
“prisoner
includes
A
to
time”
imprisonment
term of
for” a listed offense
sentenced to an indeterminate
15,1998,
any
committed on or
committed on or after December
offense
punishable by
imprisonment,
and is
life
after that date that is not listed
(2)
800.34(5)(a),
prisoner
“a
sentenced to an indeterminate
and
MCL
In 768.7a(2), provides: which to a term of person
If is convicted and sentenced a person felony while the was imprisonment committed offense, previous the term parole from sentence for a begin imposed shall imprisonment for the later offense remaining portion of the expiration to run at imposed previous offense. imprisonment term of reformatory penal person in a or insti- A who is incarcerated institution, state, escapes and who or who from that tution this escape during that incarceration or which is commits crime penal reformatory punishable by imprisonment in a institution or shall, thereof, subject upon conviction be to sentence in this state therefor in the manner provided by law for such crimes. The term imposed expira- crime shall commence at the of sentence for the serving person tion of the term or terms of sentence which reformatory penal in a or institution or has become liable serve in this state. 768.7a(l), 48, part: provides, in amended 1988 PA now as begin imprisonment imposed to run at “The term of for the crime shall imprisonment person expiration of the term or terms of which reformatory penal in a or institution has becomeliable to serve in this state.” 4 791.234(2) 791.234(3). as MCL PA217 renumbered former MCL 1994 Wayne referred to this section as MCL Prosecutor decision
The Co Wayne parties’ briefs. to remain consistent with order 569, 5; Corrections, Dep’t n 548 NW2d 451 Mich Co Prosecutor v (1996). 48, 1, PA effective June 1988. *8 484 MICH Opinion of the Court Wayne Prosecutor,
In Co we considered the prosecutor’s 768.7a(2) argument that MCL impliedly repealed MCL 791.238(5)6 and MCL because “the ‘remain- 768.7a(2)] ing portion’ clause of require[d] [MCL .. . parolees who commit crimes while parole on to first serve the maximum of the earlier sentence before beginning to serve the new sentence.” Id. at 574. We rejected argument. Instead, we concluded that 768.7a(2) MCL extended to parolees the same consecu- tive sentencing treatment to which prisoners who com- mitted crimes while incarcerated and escapees were 768.7a(l). subjected under former MCL Id. at 577-578. We saw no indication Legislature that the intended to alter the DOC’s longstanding method of sentence cal- culation, as the prosecutor urged. Id. at 580-581. We held that 768.7a(2)] “remaining portion” clause of [MCL re- quires the offender to serve at least the combined míni- sentences, plus
mums of his portion, whatever between the maximum, minimum and the of the earlier sentence that may, the Parole parolee Board because the violated the parole, require terms of him to [Id. serve. at 584.] Thus, Wayne Prosecutor, Co rejected we the prosecu- 768.7a(2) tor’s argument that MCL requires parolee to serve his entire sentence, maximum plus new minimum sentence, before becoming eligible for parole, and held that the DOC’s practice of calculating parole date, new eligibility as mandated 791.234(3), 768.7a(2). was consistent with MCL parties
As the acknowledge, neither the DOC nor the Parole Board has sentencing authority. The DOC calcu- lates prisoner’s new eligibility date after 791.238(5) provides: prisoner committing “A a crime while at large being convicted and sentenced for the crime shall be provided treated as last incurred term as [MCL under 791.234].” Idziak
Opinion of the Court 791.234(3), Parole Board Under MCL sentencing. reaches that until he over the jurisdiction lacks general, In will eligibility date. *9 sentence,7 so minimum served his already have his new serving after eligible he will become Parole Board has At that point, minimum sentence. worthy prisoner whether the to decide jurisdiction 791.234(3). is not The issue here parole. Board, or the Parole but whether of the DOC practices authorized, under required court is sentencing discretion, law a matter of common MCL 769.11b or as minimum against credit his new to defendant grant following in his time he served for the sentencing his the new offenses and before arrest for those offenses.
C. THE JAIL CREDIT STATUTE 769.11b, statute, MCL sentencing credit Michigan’s provides: any any person hereafter convicted of
Whenever any jail prior time in crime within this state and has served furnish being denied or unable to because of convicted, he is the trial court bond for the offense of which already general, have served his minimum sen In will eligible he will be considered to be in to be so tence order explained against As we maximum sentence. Prosecutor, however, Wayne Co 791.233(l)(b)l “special parole” prisoner [other permits of a [MCL time, subject disciplinary prisoner see
than 791.233(l)(d)] sentencing judge gives . written “whenever the .. expiration of the approval before the imprisonment.” minimum term of special parolee while on commits another offense A who ordinarily minimum time left to serve on the thus will have some beginning mini- service of of the earlier sentence before Prosecutor, supra [Wayne 581.] at Co mum sentence. 484 MICH549 Opinion op the Court imposing specifically grant against sentence shall credit the sentence for jail prior such time served in to sentenc- ing.
Although this Court has not considered whether the
statute applies
parolees,
we considered its applicabil-
ity in a related
Prieskorn,
context
424 Mich
(1985).
327;
served, a defendant must have been incarcerated “for the
offense of which he is
fifty-one
convicted.” Since the
days of
incarceration for which the defendant seeks credit is unre-
lated to the offense before us for which he has been
convicted, he is not entitled to sentence credit for that
confinement. [Id.
344.]
at
In
Adkins,
v
People
732, 739;
Mich
Opinion of the Court charged being after released on bond defendant was robbery and, trial and conviction before armed with charge, robbery and convicted was arrested armed property in two other offenses unrelated stolen of two began jurisdictions for those sentences and here, the defendant when, “as held that convictions.We inability post to of his time not as a result has served credit, but he seeks for which for the offense bond [MCL offense, incarceration for another because of his applicable.” simply 769.11b] Id. at 751. not recently Appeals Relying Prieskorn, Court of apply jail does not credit statute held that parolees. for a arrested held that Seiders exclu- credit offense is entitled new criminal sively was from which the sentence toward Seiders, granted the new sentence. not toward supra supra Prieskorn, at The cited 705-708. Court at proposition 769.11b “does 340-341, that MCL for the for time served a defendant to credit not. . . entitle sentencing for an offense if he is incarcerated before ultimately convicted, he is that for which other than supra Seiders, at unrelated reasons.” or for other a “defendant is that because 706-707. It reasoned only credit under entitled to a been ‘denied or unable if he has 769.11b furnish ” nor denied when is neither set bond’ and “bond parole detainer,” MCL held in on a defendant is apply at 707 detainee. Id. not to a 769.11b does Seiders). Appeals (emphasis reaf- The Court of App 550; Stead, Mich firmed Seiders following (2006), Filip, Filip. 716 NW2d *11 inapplicable un- Seiders, “MCL 769.11b is held that parolee held on new a is circumstances where der charges Filip, parole violation.” that constitute supra The Court reasoned: at 641. 484 MICH549 Opinion of the Court 791.238(1) provides parolee legally that a remains Corrections, custody Department
in the of of and that violation, “[p]ending hearing upon any charge parole of provision remain shall incarcerated.” This unambiguously declares that violators cannot avoid pending proceed- confinement resolution of the violation ings. period part Such of incarceration thus constitutes of against sentence and in that sense is credited Moreover, “denied,” 769.11b, it. implies as used in MCL discretion, recognition outright exercise of not the of ineligibility. reason, simply For that MCL 769.11b does not apply Therefore, detainees. the trial court erred setting Filip Simply put, bond for in the first instance. erroneously granted possibility posting bond did not rights Filip any sum, secure under MCL 769.11b. In contrary ruling, governs to the trial court’s Seiders applied. [Id. must be at 641-642.] Although we reach the same essentially conclusion as the Court of did in Appeals Seiders and Filip —that jail credit does generally apply statute not to parolees who commit felonies while on do so —we the basis of analysis. a somewhat different Consistent with our reasoning Adkins, hold we the credit statute apply parolee does not to a who convicted and sentenced to a of imprisonment new term for a felony because, committed while on parole once arrested connection felony, with the new the parolee any continues to out portion serve unexpired earlier sentence unless and discharged until by the reason, Parole Board. For he remains incarcerated regardless of whether he would eligible otherwise be bond before conviction on the new offense.8 He incarcerated “because of being not denied or unable 8 Subject exceptions, general Michigan to several rule under the persons Constitution is that all are entitled to bail A conviction. before is, course, posi-eonviction stage respect in the with paroled. earlier which conviction from he was *12 Idziak Opinion of the Court offense, indepen- for the new but for an furnish bond” Therefore, statute, MCL jail reason. the credit dent 769.11b, apply.9 does not 1, 1963, Michigan § the of which addresses Article 15 of Constitution bond,
eligibility
provides
part:
in relevant
subject
put
person
to be twice
shall he
for the same offense
No
shall,
conviction,
jeopardy.
persons
All
be bailable
before
following
sureties,
may
except
denied for the
sufficient
that bail
he
great:
persons
proof
presumption
the
is evident or the
when
(a)
who,
years immediately preceding
person
A
the 15
within
pending
disposition
indictment
for a
motion for bail
the
of an
charging
felony
arraignment
of an
on a warrant
a violent
violent
felony,
or
violent felonies under the
has been convicted of or more
substantially
United
of this state or under
similar laws of the
laws
state,
thereof, only
prior
if
States or another
or a combination
the
incidents, events,
felony
separate
of at least 2
convictions arose out
or transactions.
(b)
for,
person
arraigned
A
indicted
on a
who is
or
warrant
charging, murder or treason.
(c)
for,
person
arraigned
A
who is indicted
or
on a warrant
charging,
degree,
in the
armed
criminal sexual conduct
first
robbery,
money
kidnapping
or
with intent
to extort
or other
thing thereby,
clear and con-
valuable
unless
court finds
vincing
likely
present
evidence that the defendant is not
to flee or
danger
any
person.
to
other
(d)
person
for,
arraigned
A
who is indicted
or
on a warrant
charging,
felony
alleged
a violent
which is
to have been committed
bail,
person
pending
disposition
prior
while the
was on
of a
felony charge
probation
person
violent
parole
was on
or
while
prior
felony
as a result of
conviction for a violent
[Emphasis added.]
6.106(B)
release/custody
1963,
1,
(pretrial
See also
under Const
art
MCR
§15).
Prieskorn,
Despite
lengthy
post
of
at
Justice Markman’s
criticism
event,
610-611,
along
binding
any
precedent. In
with Adkins —remains
it—
769.11b,
analysis
language
requires jail
we base our
on the
of MCL
which
being
credit
the defendant
time in
denied or
when
serves
“because
convicted____”
A
unable to furnish bond for the offense of which he
who commits a new crime while on
serves time
because
serving
imprisonment,
maximum term of
not “because
he is
out his earlier
being
[new]
denied or unable
furnish bond for the
offense.”
Once a has served his minimum the Parole Board jurisdiction prisoner has over 791.234(1). has discretion MCL grant parole. While “shall be considered be court,” imposed by out the sentence (6),10 legal custody but he in the “remain[s] 791.238 under control department,” 791.238(1).11 When there has been a violation “probable may *13 of the DOC a parole,” issue warrant for the 791.238(1). Moreover, MCL parolee’s return. if “reason grounds” able exist to believe that the violated 791.238(6)provides: MCL parole permit prisoner A shall be construed as a to the to leave prison, large, paroled the prisoner imposed by and a not as release. While at serving shall be considered to be out the sentence and, eligible goodtime, the court if he or she is for shall good be entitled to time the if same as confined in a state facility. correctional explained opinion, prisoner granted parole As in n 7 of this a will generally already sentence, have served his minimum so he is considered serving against to he his maximum'sentence. provides, part: MCL 791.238 in relevant (1) prisoner legal custody Each shall remain in the department. deputy and under the control of the The director of services, upon showing probable the bureau of field of a violation parole, may any paroled issue a warrant for the return of prisoner. Pending hearing upon any charge parole violation, prisoner shall remain incarcerated. (2) prisoner violating provisions A of his or her and deputy for whose return a warrant has been issued director escaped prisoner of the bureau of field services is treated as an liable, arrested, unexpired portion when to serve out the of his imprisonment. or her maximum The time from the date of the prisoner’s availability declared violation to the date of the return to an institution shall warrant of the he not counted as time served. The deputy director of the bureau of field services is a authorizing sufficient warrant detain the all officers in named the warrant to paroled prisoner any jail in of the state until his or her penal return to the state institution. Idziak Opinion of the Court a warrant may he be “arrested without parole, MCL 791.239.12 any jail of this state.” detained 791.238(2), violating “prisoner MCL Under and for whose return or her of his provisions director of the deputy issued warrant has been arrested, services[13] liable, when ... of field bureau his or her maximum the unexpired portion serve out the date of the but the “time from imprisonment,” prisoner’s to the date of the availabil declared violation shall not be counted as return to an institution ity for added.) a paroled Because (Emphasis time served.” long his sentence as is considered to be of his with the terms compliance as he remains 791.238(6), the date of the except MCL “from availabil prisoner’s declared violation to the date institution,” 791.238(2),14the an ity for return to that the time of MCL establishes part second return to availability prisoner’s “the date of after against be counted as time served an institution” is to prisoner paroled sentence. For a the parolee’s “date Michigan, parolee’s again and arrested provides: 791.239 *14 state, officer, officer, peace probation parole a officer of this A a department probation parole employee other than a or or an of the violators is authorized the director to arrest officer who any jail may this state a a warrant and detain in arrest without officer, parole officer, peace prisoner, probation paroled if the officer, employee departmental has reasonable or authorized grounds has violated or a to believe that the [MCL her return under has been issued for his or warrant 791.238], 13 DOC, Although provision issued the this mentions warrant always argument issue a prosecutor stated at that the DOC does not oral earlier, may parolee without a warrant As noted be arrested warrant. grounds” to believe that he has if there are “reasonable and detained parole. 791.239. violated his time” provision referred to as the “dead statute. This is often 484 MICH549
Opinion of the Court
availability”
effectively
of. . .
is
the date of his arrest.
Corrections,
See
Browning Michigan Dep’t
(1971).15
179, 188-189;
Mich
In under parolee “liable, is arrested, when to serve out the unexpired portion of his or her maximum imprisonment” actually resumes serving that term of imprisonment on the date of his availability DOC, for return to the which in this case is synonymous with the date of his arrest.16 The parolee is 15Browning phrase availability’ held that “the ‘date of means actual or availability Michigan penal system.” constructive for return to the Browning, supra Browning at 189. was decided before consecutive sentencing parolees was mandated for commit who new felonies while on Also, parole. Browning, as we noted in before 1968, the “dead time” is, defining statute —that the statute the time that will not be counted as parolee language time served for a “date of arrest” instead of —used availability.” “date of... at Browning Id. 187. Our decision in addressed disparity parolees created between in-state and out-of-state interpretation resulted availability” from the DOC’s of “date of.. . when an policy out-of-state detainee was concerned. A 1969 DOC directive that, alleged parole instructed for an violator arrested outside of Michi gan, availability “the date of will be the date on which the authorities in jurisdiction holding alleged declare the violator to be available for Michigan.” return to See at interpretation id. 191. We noted that this effectivelyimposed parolee consecutive on an out-of-state repudiated interpretation availability” the DOC’s of “date of... in this phrase context. availability’ Id. at 189. Weheld that “the ‘date of means availability actual or constructive Michigan penal for return to the system. parolee, irrespective arrest, The arrest of a of the location of the coupled good with issuance of violation warrant and faith effort parolee to retake availability.” constitutes constructive Id. interpretation Under Justice Markman’s of MCL 791.238(2), one does not know whether the time served in is to be considered time served against parolee’s original parolee maximum sentence until the acquitted convicted charges. point, criminal At that if the acquitted, [Parole] “the Board must then make a new determi- *15 People Idziak v
Opinion
the Court
of
to
denied or unable
being
of
“because
not incarcerated
con-
he is
the offense of which
furnish bond
is re-
parolee
the
Because
. MCL 769.11b.
victed ..
of the
the resolution
in jail pending
remain
quired to
his
independent
for reasons
charge
new criminal
for the new
to furnish bond
ability
for or
eligibility
apply.17
does not
offense,
credit statute
portion’
‘unexpired
of the defendant’s
regarding
of the
how much
nation
again
once
be
the defendant can
original
be served before
sentence must
Only
determines that
“[i]f the Board
paroled.” Post at 611-612.
unexpired portion”
a
who
will defendant
an
defendant does have to serve
”
“
be
‘unexpired portion’ of his
sentence
‘liable’to serve the
is
jail against
original maximum
time in
his
have served the
considered to
opinion,
part
Justice
explained in
V of this
As
Post at 612.
sentence.
statutory requirement. It is
analysis is based on a nonexistent
Mabkman’s
meaning
to
is found within
unnecessary.
of “liable ...
serve”
The
also
arrest,
liable, upon
parolee
to resume
becomes
itself:
serving
actually
it
resumes
sentence and
maximum
constructively
actually
the DOC.
or
when he becomes
—to
“available”-—
response to
amicus curiae in
the DOC as
also the brief of
See
appeal in the case of
defendant-appellant’s application for leave to
(“Once
(Docket
(2006)
128424),
No.
at 5
Wright,
E. CONSTITUTIONAL
to “mul-
subjected
claims that he was
Defendant also
jeopardy
double
violation
punishments”
tiple
constitu-
Michigan
and
United States
clauses of the
1, § 15. We
1963, art
Const,
V;
Am Const
US
tions.
of the United
clauses
double jeopardy
“The
disagree.
gov-
protect against
constitutions
Michigan
and
States
(1)
for
multiple prosecutions
for both
abuses
ernmental
(2)
acquittal
conviction or
after a
the same offense
the same offense.”
multiple punishments
(2003).
448, 450; 671 NW2d
Mich
Calloway, 469
receive credit
he did not
that because
claims
Defendant
on the
awaiting
spent
the time he
Finally, defendant claims that denying credit toward parolee’s new minimum sentence pro- violates due cess21 and equal protection guarantees because it re- sults unequal treatment similarly situated defen- Const, dants.22 US 1;§ Am 1963, 1, §§ Const art XIX reject 17. We defendant’s contention. The equal protection clauses of the United States and Michigan Constitutions are coextensive. Harvey, supra at 6. Unless the legislation at issue creates a classifica- tion based on “suspect” race, factors such as national origin, or ethnicity, which trigger the highest level of (“strict review scrutiny”), or factors such gender as illegitimacy, which require an intermediate level of review (“heightened scrutiny”), it is reviewed under a rational basis standard. Id. at 7-8. Defendant acknowl- edges that rational basis applies review here. “
Under rational review, basis ‘the statute is pre- sumed constitutional, and the party it challenging bears ” a heavy burden of rebutting that presumption.’ Id. at (citation omitted). “To prevail under this highly deferential standard of review, a challenger must show legislation is arbitrary and wholly unrelated in 21 The argument substance of defendant’s equal protection; focuses on *18 separately he does not requirements process. address the of due 22 brief, In defendant does not practices, take issue with the DOC’s but with “Disparity courts’ denial of by credit: is created not parole process, MDOC judicial violation practice but to date of denying jail parolees credit to practice who commit new crimes. This anchored the belief credit, just that such they offenders do receive receive it somewhere else.” People v Idziak Opinion op the Court Id. way objective a rational to the of the statute.” “ omitted). marks and citations ‘Rational- (quotation wisdom, need, appro- does not test the basis review legislation, or whether classifica- priateness nicety,” or even tion is made with “mathematical into inequity put it results in some when whether ” omitted). (citation Id. practice.’ significant As is to each of defendant’s constitutional non- parolees differently are situated from arguments, and, result, a do not they criminal defendants as always enjoy “panoply rights.” the same of See Morris 471, 480; 2593; L Ed 2d Brewer, 408 US 92 S Ct sey v (1972) (“[T]he part revocation of is not of panoply rights criminal and thus the full prosecution proceeding apply due a defendant such a does not revocations.”). conditionally A parolee only permit leave Parole is “a permitted prison parole. and not... prisoner prison, to the to leave the release,” large, paroled prisoner “[w]hile at out the sentence shall be considered to be 791.238(6). by the court.. ..” MCL He “re imposed custody and under the control of the legal main[s] 791.238(1). As this Court department.” explained 668, 670; 211 in In re 236 Mich NW Eddinger, (1926), the keep legal custody
purpose is to beyond permitting prison him to live so while enclosure may opportunity he have an to show that he can refrain release, committing crime. It is a conditional from being good if he makes he will receive an condition sentence; discharge but if absolute from the balance of his good he will be returned to serve his he does not make unexpired [Emphasis added.] time. Corrections, 646, 651; 468 Mich Dep’t
See also Jones
(2003) (“A
no constitu-
prisoner enjoys
in this because are continuing existing prison to serve out sentences after being granted mere conditional releases.
Second, defendant claims that denial of credit results
disparity among parole
in a
violators based on the
guilty plea
jury
choice
trial,
between a
and a
as well as
“arbitrary”
degree
factors,
other
such as the
of docket
congestion.
791.238(2),
including
statute,
No
MCL
791.234(3),
statute,
769.11b,
credit
and computing
which sets forth the method for
the new
parole eligibility date, makes a distinction
between
pleads guilty
go
who
and one who choosesto
Legislature
trial. Even if the
had created such a distinc-
Supreme
tion, the United States
Court has stated that
against encouraging guilty
“there is no
se rule
per
Idziak
Opinion op the Court
“squarely
may
and has
held that a State
encour
pleas”
guilty
by offering
substantial benefits in
age
plea
212,
Jersey,
return for the
Corbitt v New
439 US
plea.”
(1978).
218-219;
492;
Moreover,
99 S Ct
It be that for defendants who find themselves offenses, multiple incarcerated for unrelated one of the plead guilty charges motivations to to some of the is the imposition the of in order desire to accelerate to benefit, possible, Michigan’s as much as from concurrent sentencing ingredient given But that law. of a defendant’s peculiar motivation derives from the facts with the which not, facing multiple charges defendant is confronted and think, limiting application from we of the sentence credit to those circumstances described its terms. statute We Legislature sought, by statute, think it is clear that the the give right any to a criminal defendant a to credit for presentence upon “the of served offense which he is language legis- convicted.” Judicial obedience to the of the may, incidentally, coincidentally, lation indeed have the motivating defendant, charged effect of a who is with multiple posted offenses and who has bond one offense released, and was but who is incarcerated for a second offense, right proceed plead to waive his trial guilty get in the first in order case clock running awaiting disposition on that conviction while final bond, of the offense for which he is denied or final resolu- However, of tion an unrelated “hold” or “detainer.” change language motivation does not of the statute and judicial applying should not be excuse for the statute to situations to it which does not extend.
To the extent against denial of credit the new minimum sentence results in some violators reaching parole eligibility their dates earlier than oth on the “arbitrary” ers basis of factors such as docket illness, congestion judge’s or a this does not amount to a violation of equal protection. Any difference treat
574 484 MICH549 Opinion of the Court any ment does not arise from classification created Legislature, and even when factors are suspect involved, by facially created neutral disparate impact legislation necessarily does not amount to a violation of Davis, Equal Protection Clause. See Washington (1976). 229, 242; 2040; S L Ed 2d US 96 Ct Further, status, parolees’ because of defendant unique heavy fails to meet the rebutting pre burden of sumption constitutionality on this issue.23 dissenting opinion, In his Justice Markman asserts that practice failing [Parole] Board’s current to undertake its statutory responsibilities, passively waiting for a defendant to he crime, mechanically concluding convicted of a new and then spent awaiting the amount of time a defendant has trial on his new automatically remaining portion offense constitutes of the serve, identically sentence that the defendant must treats potentially widely disparate situated defendants in a fashion .... [Post 627.] at grounded Justice Markman’s arbitrariness concern is in his miscon- ception statutory responsibilities explained of the Parole Board. As part opinion, parole eligibility purely V of this function statute. acknowledge congestion judge’s We that factors such as docket and a offense, illness affect the date is sentenced for a new the date he *21 begins serving sentence, and, consequently, parole his new his new eligibility operation statutory date. But this from the arises of the scheme, any not from action—or inaction—of the Parole Board. As acknowledges,post 11, Justice Markman at 628 n some arbitrariness will always process. inhere in the criminal interpretation statutory Even Justice Markman’s of the does scheme posits not remove all arbitrariness. Justice Markman that when the parolee acquitted charges, is of the new criminal “the Board must then regarding ‘unexpired make a new determination how much of the portion’ original of the defendant’s sentence must be served before the again paroled. defendant can once be If the Board determines that the unexpired portion sentence, defendant does have to serve an of his initial original the defendant will then be credit awarded for time served on his (citations omitted). sentence.” Post at 611-612 may result, To illustrate the arbitrariness that assume Parolee A and charged B Parolee are each arrested on the same date and on the same v Idziak Opinion the Court E EXAMPLE CALCULATION scheme statutory of how the simple As a illustration origi- credit violator’s give against parole operates An sentence, example. consider this nal maximum He is years prison. is sentenced to to 10 offender his minimum sentence. No parole serving after granted sentence, years minimum and 9 time remains on his 2 years on his maximum sentence. After on remain gives felony he commits an act that rise to a new he during After a of “dead time” which is charge. week sentence, he serving against prior not time is begins felony charge again arrested the new At remaining prior sentence. portion time, years remaining he has 7 on his maximum. trial, conviction, year jail awaiting He spends Accordingly, on the new offense. on his sentencing date, years original remain of his maxi- 5-year impris- mum term. He receives a 2- to term of onment for the new offense. 791.234(3),
Under MCL the DOC calculates the eligibility by adding original date minimum allegedly parole. criminal while on date with new offenses committed go awaiting to trial and serve time in trial. Parolee A’s Both decide arrest, jury acquitted. trial is held one month after his and he is Parolee delayed year congestion, judge’s B’s trial is for one because of docket illness, requested by prosecution for reasons unre- or continuances acquitted. Accordingto Justice lated to Parolee B’s case. Parolee B is also required theory, determine the Parole Board is in each case Makkman’s required “unexpired acquittal to serve an after whether the and, so, portion” if that in the of his how much. Assume parolee, each the Parole Board does so and determines case of Thus, required any “remaining portion.” under Justice neither is to serve arrest, theory, eligible A one month after Parolee Markman’s eligible year one after arrest. Even if both while Parolee B is against their maximum sentences for the receive credit jail, parole eligibility consequences for served in Parolee B has suffered arbitrary reasons. *22 576 484 MICH Opinion of the Court term and the new minimum term. Because the offender already original term, has served his entire minimum parole eligibility years his new date is 2 from the date of sentencing on the offense. The DOC calculates the discharge new maximum date adding the new maxi- (5 mum sentence imposed by years) the court to the sentence'(10 offender’s maximum years). Thus, maximum the offender’s new years. term is 15 Because already years he has served of his maximum sentence, the offender’s new maximum term expire will 11 years from the date the new sentence imposed. was KETJY
IV RESPONSE TO CHIEF JUSTICE Chief Justice KELLY agrees that defendant is not 769.11b, entitled to credit under MCL but bases her 791.234(3)24 analysis on an interpretation of MCL leads an illogical result, fails to account for the scheme, broader statutory and is contrary long- to the standing practice of the DOC approved by this Court in Wayne Co Prosecutor.
When a prisoner paroled after serving his original minimum sentence and serves time on parole before committing a subsequent offense on parole, while Chief 791.234(3) Justice interpretation of MCL would Kelly’s effectively allow the offender to begin serving his new minimum sentence he commits the before offense which that sentence imposed. was In cases, some this will, will mean that the offender for parole eligibility purposes, have served his entire new minimum sen- tence before committing illustrate, the crime. To take notes, analysis applies equally As the Chief Justice her to MCL 791.234(4). Post at 589 n 2. Our response and MCL also applies consistency, to both subsections. For we will continue to refer to 791.234(3). Idziak Opinion op the Court *23 offender who commits offense A and is sentenced to an years prison. serving 2-year term 2 to 10 in After a (9 term, years minimum he is After 7 on paroled. sentence), into his maximum the offender com- years immediately mits offense B and is arrested. He imme- a term of 2 to diately pleads guilty and sentenced to in Chief KELLY years prison 10 for offense B. Justice 791.234(3) add all posits requires simply that MCL us to imposition the time the offender has served since the in prison, the sentence for offense A—whether on awaiting disposition of the new criminal charges parole eligi- determine the offender’s new —to bility approach, date. Under this the offender here eligible paroled became to be from his sentence for B he serving years years offense after —5 before with Chief Justice disagree committed B. We offense 791.234(3) KELLY MCL requires. that this is what 791.234(3) states that for a “sentenced for prisoner terms,” the Parole Board jurisdiction consecutive has “when the has served the total time of the added minimum terms . . . .” The DOC’s longstanding a practice calculating prisoner’s parole eligibility date, reflected in our calculation above and example throughout analysis, our ensures that “the serves total time of the added minimum terms” accounting statutory while also for the broader scheme sentenced applicable parolees to consecutive terms of imprisonment.25 Kelly attempts support interpretation Chief Justice her with an
inapt comparison being to a first-time offender awarded credit for imposed. Post at served before his sentence is 597. In the case of explicitly offenders, Legislature allowed first-time result enacting Nothing language 769.11b, plain MCL 769.11b. of MCL however, suggests may applied credit be time before Accordingly, offense was even committed. Chief Justice example inapposite. Kelly’s 484 MICH Opinion op the Court 791.238(6)
Moreover, provides that “[w]hile at large, paroled prisoner shall be considered to be imposed by out the sentence the court.. . .” Nothing MCL indicates that time a pris- oner from the spends may offense be against counted as time served a new minimum sen- yet tence not imposed, yet crime not committed. On contrary, out the sentence “serving imposed by the court” indicates that the paroled prisoner continues to serve the sentence or sentences that exist at the time he is on he began serving sentences —the prison from which he was To paroled. use the example KELLY, Chief provided 598, Justice at post may defendant serve time toward his maximum terms *24 separate for two consecutive sentences right under the circumstances. When a defendant is paroled being after convicted of a second and offense sentenced to a con- secutive term imprisonment, the defendant is then actually serving out the combined maximum term for the first and second offenses as calculated under MCL Kelly’s 791.234(3). Contrary to Chief assertion, Justice however, if the defendant commits a third offense while on parole from the first and offenses, second the court may not time apply served on committing before the third toward the sentence that will be offense in the imposed future for the third conviction. As noted earlier, this contravenes the plain language of MCL 791.238(6). 791.238(2)
Similarly, MCL provides that a prisoner who violates the liable, terms of his parole “is when arrested, to serve out the unexpired portion of his or her maximum imprisonment.” previously discussed, As prisoner resumes serving unexpired portion of his original maximum term on the date he becomes avail- able for return to case, the DOC—in this the date of his 791.238(2) arrest. MCL that, indicates after he is ar- People v Idziak Opinion of the Court DOC, and rested becomes available return his serving offender out maximum sentence— Thus, not new minimum sentence. yet-to-be-imposed disagree “an we with Chief Justice affirmative KELLY [by and individualized determination the Parole Board] only proper mechanism for requiring only serve additional toward his maximum term.” Post at 594. Kelly’s
Finally, Chief interpretation Justice MCL 791.234(3) is Co Wayne Prosecutor. with inconsistent The defendant in that case originally was sentenced to years 6 to 15 He was prison. paroled serving after years about and 2 months in After prison. nearly years the defendant committed another of- fense for which years he was sentenced to to 10 3V2 turning Before to the prison. newly effect of enacted 768.7a(2), we noted that 791.234(3) foregoing statutory provisions [i]f [MCL 791.238(5)] only provisions applicable, were [the clearly paroled defendant] could be three and after years breaking entering on the conviction. He half already had six-year served more than the minimum im- posed robbery for the armed before he conviction was prison. Prosecutor, {Wayne returned to supra Co at 573 added).] (emphasis rejected
We the prosecutor’s contention that MCL 768.7a(2) impliedly repealed MCL and MCL *25 768.7a(2) and held that MCL extended to parolees sentencing same consecutive treatment prisoners which commit who crimes while incarcerated escapees subjected were under former MCL 768.7a(l). Id. at 577-578. We explained DOC’s longstanding method of calculating new date as eligibility follows: 484 Mich
Opinion of the Court computed department forty years, has For over in crime who commits a an inmate eligibility for escaped crime while commits a escapee who prison or an the offenses terms of all minimum adding the consecutive Thus, prison. consecu- state he is incarcerated for which who, persons while incarcerated imposed on tive sentences to run commence crime will escape, another on commit or prior imposed for sentences the minimum the total of when Accordingly, an inmate has been served. offenses if term, com- beyond minimum his escapee, who has served escape, on or while while incarcerated mits an offense immedi- to run would commence “consecutive” added).] (second emphasis ately. 579-580 [Id. at MCL Prosecutor, understood we Thus, Wayne Co 768.7a(2) to 791.238(5), and MCL 791.234(3), MCL term to a consecutive if sentenced parolee mean that while on committed for a crime imprisonment sentence, his minimum already served had immedi- to run begin would minimum sentence new begin that a could suggest didWe not ately. committing minimum sentence serving his new before imposed. which it was the crime for calculating a longstanding method The DOC’s logical re- yields date parole eligibility prisoner’s 791.234(3), and is consistent sults, complies with parolees sen- scheme relevant statutory with for crimes imprisonment terms of to consecutive tenced the DOC’s parole. approved We committed while the consecutive consistent with as practice 768.7a(2) Prosecutor, and Co Wayne mandate of practices with the here takes issue party neither that Chief find it puzzling Board. We DOC or the Parole an practice the DOC’s with replace KELLY would Justice results, is inconsistent yields illogical approach Prosecutor, to account for and fails Wayne Co with statutory scheme. relevant *26 v Idziak Opinion of the Court
V TO RESPONSE JUSTICE MARKMAN analysis Justice MARKMAN constructs his around a misconception is statutorily Parole Board re- to make a quired “remaining portion” determination a parolee after is or of acquitted convicted a new crime allegedly committed while on parole. posits He that the Board much, Parole is required decide how if of any, maximum original defendant’s unexpired sentence he (absent sentence) would otherwise the second be re- quired serve before becoming eligible parole. But parole eligibility statute, ais function of not Parole discretion, Board and there is statutory no requirement Parole make Board the affirmative determina- tion Justice MARKMAN proposes. Justice theory as proceeds follows. A MARKMAN’s granted parole once has he served his 791.234(1).
minimum imprisonment. term of Af- ter his arrest for allegedly committing a new crime while on the offender time in jail. serves De- pending on whether offender is convicted or acquit- ted, may he be serving that time against original his maximum or his yet-to-be imposed sentence new mini- mum sentence. Once the offender is convicted or acquit- ted the new criminal Parole charge, the Board is required to convene and make an affirmative determi- what, any, nation about if portion” “remaining of his original sentence the offender must serve before becom- (if eligible ing acquitted) beginning to (if convicted). serve his new sentence If the offender is acquitted of the new criminal charge, the time served will be against credited his maximum If sentence. the offender is offense, convicted new however, the offender not considered to have been maximum sentence while in jail. Instead, granted he must be against credit his new 484 MICH549 Opinion the Court That credit under MCL 769.11b.
minimum sentence of- of the second component “awarded as a must be until fense,” actually applied it be but “cannot Accordingly, sentence is commenced.” second until the defendant serves the is “suspended *27 Once the remaining portion original of his sentence.” he “remaining portion,” has that defendant served the credit serving his new sentence and is begins applied. astounding complexity, from of its problem
Aside the statu- is on a nonexistent interpretation premised this generally Recall that a is tory requirement. parole period for he has “served a eligible when by imposed to the minimum sentence equal 791.234(1).26 MCL Justice MARKMAN asserts court....” that, or the new criminal acquittal after conviction “make an required the Parole Board is charges, as to the defendant affirmative determination whether on required any remaining portion is to serve his at original explains sentence. . . .” Post 619. He that remaining Board determines the [Parole] “when sentence, it is essen- original of defendant’s portion discretionary about when tially undertaking a decision eligible been on parole the defendant would have for his he committed original given sentence violation parole.” Thus, on Post at 616. Justice MARKMAN’s while that Board analysis is based on the idea the Parole is parolee to determine how much time a who required his not a second crime violates but is convicted of violation, must serve “in parole in connection with that original once his eligible parole again to be for order the parol- ....” at 615-616. He believes that sentence Post acknowledges [the defendant’s] that “the Justice date of Makkman 791.234(1)....” eligibility by parole is MCL Post at 604. determined Idziak
Opinion of the Court eligibility ee’s date parole original for offense changes may violated change because has parole. his theory
The flaw in Justice MARKMAN’s that parole is eligibility is a function of statute: MCL 791.234. Unless a new consecutive imposed sentence to the sentence, in which case parole eligi- the offender’s new 791.234(3), bility governed by date is then eligibility offender’s date does parole change. not The eligibility defendant’s remains parole governed 791.234(1) and, therefore, the defendant and is was eligible when he has served parole prison minimum sentence. Absent a new that would within the of MCL bring parole eligibility ambit 791.234(3), the offender’s parole eligibility is unaffected sure, To be finding violation. the Parole Board has the discretion to revoke situa- tion,27 but does not alter status as offender’s eligible Indeed, the Parole parole. Board not if required to revoke supports even evidence *28 the parole allegation by violation a preponderance the We find statutory support evidence.28 no for Justice MARKMAN’sunderlying parole conclusion that a viola- tion may alone the change parole eligibility previ- date ously making calculated under MCL it a matter of the Parole discretion.29 Board’s 27 prisoner subject parole, prisoner’s parole “After a is released on the is parole provided to revocation at the discretion the as board for cause 791.240a(l). in this section.” MCL 28 preponderance supports allegation “If a of the evidence the that a parole occurred, parole may parole the violation board revoke . ...” MCL 791.240a(10) added). (emphasis 29 quotes Justice Makkman various sentences from the amicus DOC’s support proposition curiae brief in the Board Parole is statutorily required “remaining portion” to make a determination but responsibility respect.. has “abandoned its in this ..” at 617 n 6. Post
584
Finally, if parolee parole, violates terms of the Parole has authority parole. Board revoke MCL None statutorily 791.240a. of these defined func- tions of the Parole Board includes a requirement that Parole Board make an “affirmative determination of how must long [his defendant serve on first] sentence.” at 617. Post
Instead, “remaining Justice locates the MARKMAN 791.234(1), in portion” requirement MCL as discussed above, 791.241, 768.7a(2), and MCL interpreted as in Wayne Co Prosecutor. MCL 791.241 provides, full: “When the parole board has determined the matter it rescinding shall enter an order such reinstat ing order of or enter other such order may itas see fit.” Justice MARKMAN that concludes this constitutes a statutory requirement Parole Board make an affirmative “remaining portion” deter provides mination because it that “the Board ‘shall’ an taking enter order some action after determining whether a has . .” violation occurred. . Post at 631 n 14. 791.241 requires the Parole Board to enter an order rescinding parole, reinstating parole, or some other order “as it see fit” may once it has been determined the parolee parole. whether violated his Nothing provision requires Parole Board to make a time, decision about much if any, how additional required to spend prison being before *30 549 484 MICH Opinion of the Court Moreover, date. future predetermined on some
paroled for a “conviction is here, parole the violation when, as by imprisonment,” punishable misdemeanor felony or matter,” the not Board does Parole the “determineG hearing parole violation 791.241, holding by MCL MCL hearing required. violation parole no because 791.240a(3).30 determina- the “affirmative Makkman locates
Justice in the is based analysis on which requirement tion” 768.7a(2) in Co Wayne of MCL discussion following between portion, at 584: “whatever Prosecutor, supra maximum, earlier sentence of the and the minimum the the violated may, parolee because Parole Board that the him serve.”31 As is to require parole, the terms of authority to the pertain statutes that from the apparent (such 791.234, 791.234, MCL as MCL of the board the pa- 791.240a), “requires” Parole Board MCL authority to statutory its exercising rolee “to serve” 791.240a, delay the and therefore MCL revoke 791.234(3), declin- MCL discharge, possibility 791.234(5) to under MCL its discretion to exercise ing serving. presently the sentence terminate previous parole account for may Board The Parole MCL decisions. See making these violations “provides additional that MCL 791.233e Markman also states Justice “remaining portion” making guidance” to the Parole Board determination. 791.233e(l) requires Parole Board to establish MCL parole board’s discretion ... as “govern of the
guidelines the exercise to purpose prisoners parole .... The the release to release decisions making board guidelines be to assist the shall added.) safety.” (Emphasis There is no reference public that enhance scheme, portion” statutory “remaining there, anywhere to else in the determination. Kelly post interpretation. See at a similar shares Chief Justice 593-594. Idziak Opinion of the Court 791.233e(2)(d). statutory requirement find We no “remaining make an affirmative por- the Parole Board Wayne Had this Court in Co Pros- tion” determination. 768.7a(2) a new impose ecutor understood MCL Board, requirement presumably on the Parole we would have said so.32
Thus, in
disagreement
addition to our
with his inter
statute,
769.11b,
credit
we
pretation
conclude that Justice MARKMAN’s
credit
approach
statutory
pertaining
is inconsistent with the
scheme
authority
required by
of the Parole Board and is not
768.7a(2)
in Wayne
or our decision
Co Prosecutor.
*31
Finally,
assuming
even
that Justice MARKMANis correct
this Court could order the Parole Board to make
individualized
“remaining
portion” determinations
without
afoul of
running
Flushing City
Warda v
Coun
cil,
326;
472 Mich
n
(2005),33post
tional.
Opinion by Kelly, Parole Board to make “remaining por- individualized determinations, tion” the Parole Board would be free to establish variable generally standards that would be unreviewable the courts under Warda.
VI. CONCLUSION 791.238(2), Under MCL defendant resumed serving maximum sentences when he was arrested in connection with the new criminal offense. Regardless eligibility of his for bond ability it, or his to furnish defendant in jail remained because he was those earlier sentences. Accordingly, statute, credit 769.11b, apply. does not The sentencing court authority lacked grant defendant credit against his new minimum sentence because doing so would be inconsistent with the statutory scheme. Finally, denial credit against defendant’s new minimum sentence did not him subject to multiple punishments for the offense, same and he has failed to show that the denial against of credit his new minimum sentence violated equal protection.
Affirmed. JJ.,
Weaver, Young, Hathaway, concurred with J. Corrigan,
KELLY, C.J. (concurring part and dissenting I part). agree majority with the that a parolee incarcer- ated on new charges criminal is not entitled to credit under MCL If convicted, 769.11b. court may not award credit against the sentence it imposes for time parolee spent in jail awaiting trial. But I reach that conclusion for different than reasons majority finds appropriate. People v Idziak Opinion Kelly, C.J. case, days In this I believe that the 98 defendant served in should have been considered time served the minimum term calculated under MCL toward The of the existing application 791.234.1 consecutive may also be unconstitutional as sentencing scheme parolees. to situated applied similarly THE CONSECUTIVE SENTENCING STATUTES are of offenses committed Persons who convicted are to they parole automatically subject while are on 768.7a(2), under MCL which consecutive sentences provides: person
If a is convicted and sentenced to a term of felony person imprisonment for a committed while the was offense, parole previous from a sentence for a the term imprisonment imposed begin shall for the later offense expiration remaining portion to run at the previous imprisonment imposed term of for the offense. specifies MCL 791.234 how consecutive sentences 791.234(3) calculated.2 MCL states: must be prisoner prisoner subject disciplin- If a other than a to terms, ary time sentenced for consecutive whether any during received at the same time or at the life of sentence, jurisdiction parole board has over prisoner purposes when the has terms, served the total time of the added minimum less the good disciplinary time and credits allowed statute. The acquires jurisdiction MCL 791.234 determines when the Parole Board prisoner serving to indeterminate sentences. consecutive analyses equal opinion apply All of MCL in this with force 791.234(4), prisoners subject disciplinary time. which concerns respect The two subsections are identical with to when the board jurisdiction has and the calculation of a new maximum term. MCL 791.234(3) merely good alters the calculation to account time or credits, subject disciplinary prisoners are not which available for 791.234(4). disciplinary time under MCL *33 484 MICH549
Opinion by C. J. Kelly, compute maximum terms of sentences shall be added to subsection, the new maximum term under this and dis- charge only shall be issued after total of the maximum good disciplinary sentences has been served less time and credits, prisoner paroled discharged upon unless satisfactory completion parole. 791.238(6)
Finally, MCL states that parolee considered to be or her serving his sentence while on parole: permit prisoner
A shall be construed as a to the prison, leave the large, and not as a release. While at paroled prisoner serving shall be considered to be out the imposed by and, eligible the court if he or she is time, good good shall be entitled to time the same as if facility. confined in a state correctional Discerning how correctly give force to each of these statutes is a difficult task. Unlike the I majority, do not agree that existing practices give proper effect to the I statutory language. believe than the key to the correct
interpretation is the timing of the Parole Board’s cal- culation of a consecutive sentence under MCL 791.234(3).
APPLICATION OF THE SENTENCING STATUTES 768.7a(2) provides for consecutive sentences for all paroled offenders who are convicted of and sen- tenced for a new felony committed while they were on parole for their offense. Once the parolee is offense, sentenced for the new the Parole Board calcu- lates the date when he or she will again be eligible 791.234(3). parole pursuant to MCL 791.234(3), Under MCL a prisoner must serve “the total time of the added minimum terms” before becom- ing eligible for parole. parolee’s The parole eligibil- ity computed by date is considering first how much time Idziak Opinion by Kelly, C. J. serve, determining must then how much parolee “has served.” when the Parole therefore defines jurisdiction Board has *34 sentences. It does so by
consecutive indeterminate of the old and new sentences into combining terms term. The minimum and maximum aggregate one together. terms of the old and new sentences are added minimum single The result is a term with one and one maximum. The new minimum and maximum set the prisoner boundaries of the time a must serve. new only It is this term has been aggregate, single when determined that the Parole Board can calculate the Thus, parolee’s parole eligibility calculating new date.3 what “time inevitably constitutes served” is retroac- The tive exercise. Parole Board does not determine a parole eligibility defendant’s new date until after he or she is sentenced for the new offense. practice
Under the current Department (DOC), Corrections the minimum sentence of a paroled again begin defendant who offends does not until the sentencing. date of the Parole Board Consequently, does acquire jurisdiction not that over defendant until he or she equivalent has served the of the minimum term of that new offense. That term is measured from date on the offense.
However, practice this does not reflect what statute The requires. only statute mandates equal serve an amount of time to the added minimum terms of incarceration. That time served (1) in prison includes time served on the 3 This conclusion is based on common sense. Until the minimum terms combined, parolee’s are the Parole Board of a consecutive sentences cannot know how much minimum time the must serve before again eligible parole. becoming for 484 MICH 549 Opinion Kelly, C.J. (2) offense, time served on (3) 791.238(6), offense, to MCL according charges. of the new spent jail awaiting disposition The do not the Parole Board parties dispute authority lacks to alter defendant’s sentence. It can- minimum already not add time to served.4 As we have noted:
[Cjonsecutive who, imposed persons sentences while escape, or on commit incarcerated another crime will commence to run when the total of the minimum sentences served.[5] imposed prior has been offenses Prosecutor, Wayne In Co we also observed that 768.7a(2)] intent “Legislature’s enacting [MCL was simply statutory provisions to extend the of [MCL 768.7a(l)] to . . . .”6 The Parole Board parolees has not only authority statutory obligation but a to use the imposed by terms of sentences courts in order *35 (1) calculate point prisoner both the earliest at which a (2) may parole be released on at which he point or she must be from discharged prison.
I conclude that the of plain meaning “total time” prisoner clause “when the has served the total time of the added minimum terms” must to all apply Generally, remaining portion served. no remains on a paroled. defendant’s minimum term when he or she is Therefore, any time served on or in awaiting disposition of charges new should be counted as time aggregate served toward the minimum sentence. Wayne beyond Co Prosecutor erred to the extent it went 4 Normally, a defendant’s minimum sentence run has when he she is paroled. Corrections, 569, 580; Wayne Dep’t v Co Prosecutor 451 Mich of (1996) original). (emphasis NW2d 900 6 Id. at 581. Idziak Opinion by Kelly, C. J. and concluded that the consecutive sentence language immediately commence new upon parolee’s would That does not take into account the offense. conclusion of the Parole Board’s calculation of a defendant’s timing 791.234(3). added minimum terms under MCL My interpretation is consistent with this Court’s 768.7a(2) interpretation holding of MCL and truer to its In Wayne case, Co Prosecutor. we also held that 768.7a(2)] “remaining portion” clause of [MCL re quires the offender to serve at least the combined míni sentences, plus portion, mums of his whatever between the maximum, minimum and the of the earlier sentence that may, the Parole Board because the violated the serve.[7] parole, require terms him to rejected prosecutor’s argument We therefore 768.7a(2) requires prisoner that MCL to serve his or begin- her entire maximum sentence before ning serve his or her new minimum sentence. 791.234(3), Under MCL juris- the Parole Board lacks prisoner diction over the for the purposes until he or she reaches the new parole eligibility date. However, after the prisoner sentenced for the new offense, clearly the Parole Board has the authority to require portion to serve an additional maximum sentence. This is due to his or her violation. As indicated the use permissive Prosecutor, language Wayne from Co “may serve,” . . . him require the Parole Board need not add time. however,
In current the Parole Board practice, does passively not make such a decision. It treats time served offense, in prison before for a however *36 be, long may that as time served for the defendant’s 7 Id. at 584.
594
CRITICISMSOF MYAPPROACH
I
disagree
majority
with
and Justice MARKMAN
my
contravenes
interpretation
consecutive sen-
policy
felony
“[a]
The DOC’s
states that
convicted of a
while on
parole
Department
who receives a new
he served with the
shall
be found
have
violated
based on that new conviction and sentence.
hearing
required.”
Policy
A
revocation
is not
MDOC
Directive
06.06.100, T,
26,
February
policy
§ effective
The
2007.
does not address the
prison
issue of how much additional time must be served in
for the
violation.
policy directly
This
contravenes MCL
as well as the state
Wayne
begin running
ment from
Co
Prosecutor
consecutive sentences
imposed
prior
when the total
the minimum
sentences
offenses has
my previous
Wayne
been served. See
discussion of
Co Prosecutor.
(2005).
Council,
326;
Flushing City
Warda v
472 Mich
Under sentence, prisoner’s served with consecutive more than one minimum applied would never be toward toward the applied Time served would not be sentence. minimum minimum sentence until the first second might applied had been served. Time served be the minimum term of a new sentence and the against maximum term of the old sentence at time. the same But, Michigan’s sentencing under indeterminate scheme, minimums and máximums are often served sentencing ap- consecutive concurrently, even when Indeed, application current plies.12 by reoffending parolees time served applies satisfy the minimum sentence of the new offense simulta- the maximum sentence of the old offense the maximum sentence for neously. This occurs because the old offense not been served when the convict is has into the incorporated resentenced. The time left offender’s new combined maximum sentence.
Moreover, majority I disagree opinion with 791.238(6). my interpretation is undermined the Parole Board has no au- previously, As discussed A thority to alter a defendant’s sentence. defendant’s until after the early release date is not calculated minimum terms of both consecutive and maximum 12 Wayne Prosecutor, rejected argument In Co this Court requires Michigan’s offenders to serve the consecutive scheme beginning a of their offense before entire maximum sentence Prosecutor, Wayne supra at 579-584. new minimum sentence. Co Mich 549 Opinion by Kelly, C.J. I together.
sentences have been added believe that all the time that a defendant has served should be applied aggregate term, toward that as calculated the Parole 791.234(3). pursuant Board to MCL I reject majori- ty’s Legislature contention that the intended that time ón spent only should count toward the sentence imposed by the court before the prisoner paroled.13 was
The majority’s conclusions are an premised on erro- assumption: neous A prisoner existing an term prison awaiting while trial for a new offense *38 cannot be serving considered to be time toward a new imposed sentence that is after the trial. The error in this assumption by is illustrated examining appli- jail cation of credit to the sentences first-time offend- ers. a trial, While first-time offender is in jail awaiting he serving is not his sentence. He yet has not been convicted, and there is no sentence to serve. But once convicted, he is considered to serving have been sentence while in awaiting trial.
Similarly, parolee while a is awaiting incarcerated conduct, trial for new criminal he or she cannot be serving his or her new sentence because it does yet not exist; he or she is only serving his or her prior sentence. But once the second sentence imposed, has been MCL 791.234(3) operative. becomes Only point at that can aggregate the new term governing the prisoner’s incar- ceration be computed. The minimum terms of both sentences are together, added as are the maximum terms of both sentences. majority's “imposed” The observation that the word is written in the
past my timing tense does not undercut conclusion. The of the Parole point. Board’s determinations is the focal Because time served is calcu prisoner’s together, prisoner’s lated minimum terms are added after spent “imposed” past is time served on the sentence — by the court. tense — Idziak Opinion by Kelly, C.J. ask, respect that it is relevant with point, At dates, discharge and maximum how parole eligibility 791.238(6) MCL time the has served. prisoner much to have been indicates that is considered That none of the serving parole. his sentences while on time he deemed to be sentences existed at the was The same inherently problematic.14 them is not credit to a first-time result occurs with the award similarly jail, offender. While a first-time offender did serving a sentence that not considered to have been yet exist.
The the court” referenced imposed “sentence overly restric- given MCL should not be to it.15This is meaning majority tive that the ascribes 8.3b, in con- provides made clear which statutes, struing vigorously repeatedly protesting plain language that “the While 791.238(6)” result, majority provides of MCL does not allow such Indeed, support why scant this is so. its sole basis for this conclusion my sentencing. interpretation is that would contravene consecutive As explained opinion, disagree my approach earlier in this I contravenes sentencing. consecutive majority why my opinion The one advances additional reason 791.238(6). contrary plain language Apparently, to the majority require affirmatively would that a statute state that may be credited for time served before the offense was *39 Otherwise, interpretation. committed. that result cannot he a feasible reject statutory language
Ante at 577-578& n 25.1 that notion absent stating prisoner may “a be credited for time served before the committed,” interpretation. offense was one cannot discern an As such noted, analysis applicable an statutes in context with one another 791.238(6) Moreover, supports interpretation. specifically such an limitation, provide, prisoners “serving does on are without imposed by out the sentence the court....” 791.238(6) majority’s gives effect The limitation on MCL never timing of the Parole Board’s calculation of time served. Nor does the majority together, squarely address that when read MCL 791.234 and 791.238(6)require that all time as time served toward served count prisoner’s added minimum terms. 484 MICH549 Opinion by Kelly, C.J. [e]very importing singular only may word number plural number, every extend to and embrace the word importing plural may applied number be and limited to singular number. 791.238(6) Thus, even though MCL refers to a single sentence, may it be properly considered to reference sentences, multiple including those being served con- secutively. 791.238(6)
Furthermore, MCL credits all parolees for parole, served while on they serving whether are two sentences imposed consecutively, or three or An- more. other example illustrates how this A prisoner occurs. paroled from a single sentence and receives consecutive felony sentence for a new committed while on The parole. prisoner is paroled again and commits a third felony resulting in a third consecutive sentence. In what sense was the prisoner serving out the imposed by “sentence Quite literally, court”? actually was not serving a single imposed by Rather, a court. prisoner was serving combined term of imprisonment 791.234(3) computed by the DOC under MCL after the prisoner’s second offense. This combined term is an ag- gregate term with added mínimums and added máxi- mums. That combined term included two im- sentences posed by the court as component Thus, its parts. it is not a failure logic to read MCL that, to mean while on are parolees serving sentences imposed by They the court. them, are all of including the one imposed for the most recent episode new criminal conduct committed while parole. disagree majority’s
I also with the assertion in the opinions my interpretation and Justice MAKKMAN’s “illogical” leads to or “anomalous” results.16Most of 576, 580;post Ante at at 622 n 9. *40 599 Idziak Opinion by C.J. Kelly, in a could result my interpretation criticism is that this imme- being eligible deemed repeat offender Clearly, offense. being sentenced for new diately upon course, But, of the Parole could occur. such situation grant parole. not to always has the discretion Board the absurd Therefore, does not constitute the situation likely being paroled without repeat result of a offender it does not Certainly, time for a second offense. serving statutory language. disregarding warrant by way I this of illustra- hypothetical example offer An offender is requires: tion of what 1 The offender is years prison. sentenced to to 10 minimum sentence. No after granted parole sentence, years and 9 time remains on the minimum After 2 on years remain the maximum sentence. rise to a gives the offender commits an act that immediately The offender is ar- felony charge. new time, years has 7 jailed. rested and At that offender remaining to serve on the maximum sentence. trial, 1 spends year jail awaiting
The offender then conviction, sentencing on the new offense. Accord- date, years remain to be ingly, on original served on the maximum term. 15-year imprison- a 7- to term of
The offender receives 791.234(3), the ment for the new offense. Under MCL by adding date parole-eligibility DOC calculates the new (7 minimum term years) minimum term and the new (1 His new minimum term year). of his maximum dis- years. is 8 The DOC calculates the new (15 maximum sentence charge by adding date (10 Thus, years) years). to the maximum sentence years.17 sentence is 25 the offender’s new maximum agree parties that it is the court that sets the terms of the All the respective judgments that the DOC uses to determine the of sentence terms. new minimum and maximum 484 MICH C.J.
Opinion by Kelly, key question The is how much time has the offender newly served toward this calculated 25-year 8- to term *41 time the DOC calculates it? I conclude that under a plain reading 791.234(3), of MCL the offender has served 4 years of that sentence: 1 in prison on the original offense, 2 on and 1 parole, while incarcerated awaiting trial for the Therefore, new offense. in the hypothetical example, the offender is eligible years after sentencing for the new offense.
THE JAIL CREDIT STATUTE MCL 769.11b provides: any person
Whenever any hereafter convicted of crime within this any jail state and has served prior time in to being because of denied or unable to furnish bond convicted, for the offense of which he is the trial in court imposing specifically grant against shall credit sentence for prior sentencing. such time served in to I agree with the majority that this statute does not apply parolees who again offended and spend time in jail awaiting disposition charges against them. But my rationale is different. Because the time served in jail counts as “time served” on the aggregate minimum term DOC, calculated a parolee is not entitled to other credit for such time. If parolee were to receive credit against the court’s sentence for the offense committed while on would receive credit double for the same time. This Court has consistently rejected this outcome in other contexts.18
CONSTITUTIONAL ARGUMENTS
Court,
Members of this
including myself,
previ-
have
ously observed that
the practices at issue appear to
See,
People v
e.g., Patterson,
392 Mich
83;
time served be may unconstitutional because the dis- parate resulting treatment promotion guilty “ ”21 pleas is ‘needless.’
Finally, I take note that courts expressed objec- have present tions to the practice years,22 for almost 20 yet neither the Legislature nor the DOC has addressed it. I would not allow their failure to the nettle grasp prevent us from finally doing today. so
CONCLUSION I agree majority with the that MCL 769.11b does not apply to parolees held in prison on new criminal I charges. However, reach this conclusion because time in jail served awaiting disposition charges of new should be considered time served toward a defendant’s aggre- 791.234(3). gate minimum term under MCL Finally, I am concerned existing that the application of the statu- tory scheme prisoners who offend again while on parole is unconstitutional.
Therefore, I would direct the Parole Board to recal- culate defendant’s eligibility date using the analysis herein.
CAVANAGH, J., concurred
KELLY,
with
C.J.
J.
I
(dissenting).
respectfully disagree with
MarkmAN,
the majority’s conclusion that
769.11b,
“jail
21 Corbitt, supra at 219 n 9.
22 See, e.g., People Watts,
686,
App
4;
186 Mich
691 n
(1991) (“[T]his inequitable situation could be resolved in a number of *43 ways matter, reading 791.234(2); .... For that a strict of MCL MSA applied, could together, be the two minimum terms added accordingly. urge date calculated . Legisla [W]hile .. we issue, ourselves.”). ture to address this we decline to do so Justice Weaver Appeals panel was on the Court of that decided Watts. v Idziak Dissenting J. Opinion Markman, statute, a defendant who is inapplicable credit” crime awaiting sentencing for new spends jail on In accordance with parole. committed while he is 769.11b, jail is entitled to credit “any person” to furnish bond for he is “denied unable when (Emphasis he convicted. . . .” offense of which added.) crime a defendant who commits a new Because to furnish “unable” unquestionably while convicted, he is he is for the new offense for which bond view, it Contrary majority’s to the jail entitled to credit. was unable to consequence is of no whether defendant detainer, as defen- furnish bond “because of” a was, he unable to bond long post dant here as as was Thus, “for the offense of which he was convicted . . . .” days jail have received 98 credit defendant should the time he toward the sentence for his new offense for sentencing on his spent awaiting incarcerated while However, only not disallows majority new offense. 769.11b, credit under MCL but it does the award of fully very significant problem so addressing without interpretation. of arbitrariness that arises under its is, That leads to a situa- majority’s interpretation identically may tion in situated defendants be which widely disparate treated in a fashion on basis of factors, such as an assistant entirely serendipitous diligence judge’s or a vacation schedule. prosecutor’s I in its majority interpre- Because believe the has erred statutes, I tation of the relevant dissent.
I. ANALYSIS
whether,
The
in this case is
under
ultimate issue
769.11b,
defendant is entitled to
credit for
for a
awaiting sentencing
time he was incarcerated
parole.
proper
crime he committed while on
Because
resolution of this issue involves the interrelation
*44
[July-
A. PAROLEES AND TIME SERVED general matter, As a when a defendant is convicted of felony, he is sentenced to an indeterminate term of imprisonment incarcerated, and is thereby being placed in the custody Michigan of the Department of Correc- (DOC). tions then begins serving sentence, He the date of his parole eligibility is determined MCL 791.234(1), which provides:
Except provided 791.234a], prisoner [MCL as sen- tenced to an indeterminate sentence and confined in a state facility correctional years with a minimum in terms of prisoner subject other disciplinary subject than a to time is jurisdiction to the prisoner board when the period equal has served a of time to the minimum sentence imposed by the court for the crime of which he or she was convicted, good disciplinary credits, less appli- if cable.
Thus, once the defendant serves an amount of time “equal sentence,” to the minimum he eligible (the parole and may paroled by be the Parole Board Board). Assuming the grants Board the defendant parole, he then parolee and, becomes a according 791.238(6), continues to serve out the unexpired portion of his sentence while on parole. MCL “A provides: parole shall be construed as a permit the prison, leave and not as a release. large, While at the paroled prisoner shall be considered serving to be out the sentence imposed by the court.” Idziak Dissenting Opinion by Markman, J. operate together, statutes
To illustrate how these a defendant has been convicted of a crime and assume years’ imprisonment. to a term of to 10 is sentenced 5-year term, the minimum the defen- After eligible parole, and the Board dant becomes thereby grant decides to the defendant mak- ing parolee spends year parolee. him The crime, and then commits a means which years that he has now served a total of 6 on his *45 10-year original However, 5- to sentence. once he is allegedly committing offense, a incarcerated for “unexpired portion” along sentence, the initial the of parolee’s spent jail pending in with how the a parole determination of whether he violated his part, by allocated, determined, 791.238, MCL which states:
(1) prisoner legal on remain in the Each shall custody department.... under the control of the violation, Pending hearing upon any charge of the prisoner shall remain incarcerated.
(2) prisoner violating provisions A of or her his return whose a warrant has been issued deputy of the bureau of director field services is treated liable, arrested, escaped prisoner and is to serve as an when unexpired portion impris- his or out the her maximum The declared onment. time from date of the violation to availability prisoner’s the date of the for return to an institution shall not be counted as time served.
Notably,
only
parolee,
subsection 2
states that a
after
being reincarcerated, is “liable” to serve out the “unex-
pired portion”
offense,
he
of his first
not that
automati-
cally
serving
Being
resumes
that term.
“liable” to serve
unexpired
original
portion
out the
of the
sentence is
majority,
equivalent
not, as assumed
automatically continuing
sentence,
to serve that
as a
parolee parole.1 while remains See 791.238(6). supported by This conclusion is the distinc- 791.238(6) language 791.238(2), tive of MCL and MCL establishes, context, each of which a different when a defendant is and is not considered to be out his serving original sentence. 791.238(6), Legislature
In MCL specifically re- quires “shall” be considered out serving his unexpired portion of initial sentence while on 791.238(2), parole. hand, on the other only states that a is “liable” to “unexpired serve out the sentence, portion” his first but does not require automatically serving he resume that unexpired por- 791.238(2) clarifies, tion. MCL using mandatory also (“shall language not”), a parolee when is not to receive credit toward his sentence. If the Legislature majority The concludes that a defendant iswho arrested for commit ting parole automatically serving a new crime while on continues his using following analysis: paroled prisoner Because is considered to be long compliance sentence as as he remains with the terms of his 791.238(6), except “from the date of the declared prisoner’s availability
violation to the date for return to an institution,” 791.238(2), part *46 MCL the second of MCL prisoner’s establishes that the time “the date of the avail- after ability for return to an institution” is to be counted as time served against parolee’s original [Ante 565.] sentence. at Although majority’s assumption prisoner serving a that resumes time original on his sentence as soon as he becomes available for return to the 791.238(2) indepen- institution is not unreasonable when MCL is read dently statutes, majority’s interpretation of other relevant of MCL 791.238(2), conjunction jail with the credit statute and other relevant statutory provisions, strongly suggests analysis that this is incorrect. 1(C) specifically, part infra, More as will be discussed in a defendant who parole by committing violates a new crime cannot serve his new sentence 768.7a(2). concurrently original Thus, with his See sentence. MCL when jail offense, receives credit toward the sentence for his new he serving original cannot also be time toward the sentence his offense. v Idziak Dissenting Opinion J. Markman, intended that a who is arrested for a new parolee had automatically serving on continues crime while offense, it time toward the sentence for his first could (“shall”) it did language used the same definite as have 791.238(6). However, in MCL because MCL (“is language uses liable... permissive instead serve”), mandatory language rather than the same used 791.238(6), necessary it to examine becomes serving his actually whether defendant toward sentence when he is arrested for a new crime original question depends while on The answer to this parole. ultimately the defendant’s parole whether violation subsequent leads to a conviction of another crime for jail apply. which credit can a parole
If a defendant is arrested because of viola- offense, criminal tion that does not constitute new and the Board the defendant to serve an requires unexpired portion amount of the of his first additional sentence, any then there is no time the question reincarcerated must be credited as time parolee spends original served toward his sentence because there is no other sentence to which that time can be credited. However, if a defendant is arrested for a new crime 768.7a(2), part while on as discussed 1(C) infra, prohibits the defendant from serving sentence original concurrently, which means if only way to know the defendant time toward his determine if the is to will receive credit for his new sentence once credit, he is If convicted. he does receive then the fact that he remains liable to serve out the despite sentence, unexpired portion of his initial he will not actually during have been so the time he doing was Thus, reincarcerated. in order to determine whether a defendant is arrested for a new crime committing who will be entitled to credit for time served on his *47 484 Mich 549 Dissenting by Opinion J. Markman, liable, it sentence for which he remains becomes neces- sary to determine whether a defendant in this situation receives credit jail toward new sentence.
B. JAIL CREDIT
statute,
769.11b,
jail
The
credit
states:
any person
any
Whenever
is hereafter convicted of
any
jail prior
crime
within
state and has served
time in
sentencing
being
to
because of
denied or unable to furnish
convicted,...
bond for the offense of which he
[the court]
grant
specifically
against
shall
credit
the sentence for such
jail prior
sentencing.
time served in
“any
MCL 769.11b
applies
person,”
just
not
non-
parolees who
spend*time
jail awaiting trial. Addition-
ally,
jail credit statute
to a
applies
variety
situa-
tions
requiring
“any” defendant “shall” be
jail
awarded
credit when he is
awaiting
incarcerated
being
“because of
denied or
fur-
unable to
nish bond for the offense of
he
which
is convicted . . . .”
The statute is silent
respect
with
to the reason that a
being held,
defendant is
and only requires
spend
that he
jail
time in
being
“because
denied or unable
post
bond
convicted,”
offense of which he is
which
means that a defendant
is entitled to
credit on his
new sentence as long
post
as he cannot
bond for the new
offense, regardless
However,
of the reason.
the majority,
relying
Prieskorn,
this Court’s decision in People v
327;
(1986),
Mich
We believe the sentence credit statute neither re- *48 cases, quires permits nor sentence credit such as the us, one before where a defendant is released on bond entry and, following charges arising from one offense charges, pending disposition subsequently of those charges arising incarcerated as a result of out of an then credit unrelated offense circumstance and seeks period in the that former case for later of confinement. agree primary purpose We that the of the sentence “equalize possible credit statute is to as far as the status of indigent financially the and less well-circumstanced ac- cused with status of the accused who can afford to furnish bail.” Legislature
Had the intended that convicted defendants given prior be sentence credit for all time served to sen- tencing day, regardless purpose pre- for which served, sentence confinement was it would not have con- ditioned and limited entitlement to credit to time served jail apply parolee [W]e hold that the credit statute does not to a imprisonment who is convicted sentenced to a new term of for felony because, committed while on once arrested felony, connection with the new continues to serve out any unexpired portion of his earlier sentence unless and until discharged by reason, the Parole Board. For that he remains regardless eligible incarcerated of whether he would otherwise be for bond before conviction on new offense. He is incarcerated being not “because of denied or unable to furnish bond” for the offense, independent [Ante but an reason. at 562-563 for added).] (emphasis however, Again, says nothing the statute about the “reason” that a post denied; rather, applies defendant is unable to bond or has his bond it long actually simply as he as denied or unable to furnish bond. It is post irrelevant under MCL 769.11b that a defendant is unable to bond because of a detainer. 484 MICH549 Opinion by Dissenting Markman, J. [the defendant] [Id.
“for the offense of which is convicted.” omitted).] (citation at 340-341 words, majority agrees In other with Prieskorn’s alters the statute reasoning, subtly requiring which that a defendant must denied or bond post be unable for a reason attributable the new offense. Prieskorn’s First, analysis is reasons. flawed two Prieskorn’s i.e., initial credit statute was premise, intended to treatment equalize existing disparate indigent non-indigent defendants, between is incor- simply “any person” rect. MCL 769.11b states that who is “denied or unable to furnish bond for the offense of which he is convicted” is entitled to credit on the new offense. The statute does not state remedy differing its is to treatment of purpose *49 indigent Indeed, defendants. non-indigent the re- of MCL 769.11b that quirement any person be awarded if jail person credit is “denied or unable to furnish conclusively bond” rebuts Prieskorn’s suggested pur- is, pose. although may That a defendant be unable to furnish bond because of he is indigency, never denied Thus, majority’s bond for that reason. resolution applies whether MCL 769.11b to defendant in this case cannot rely purpose. Prieskorn’s stated
Second, quoted jail Prieskorn credit statute out of by context that stating Legislature “conditioned and limited entitlement to credit to time served ‘for the ” offense of [the which is convicted.’ Id. at defendant] 341. A full of MCL reading 769.11b reveals that no such condition or limitation merely exists. 769.11b requires jail credit be awarded if a defendant is “unable furnish bond the offense of which he is convicted . . . .” that a Requiring defendant be unable to post significantly bond “for” an offense is different from stating only that a defendant can receive credit based v Idziak by Dissenting Opinion Markman, J. on “time essence, served the offense.” In both Prieskorn and majority rewrite the phrase “denied or unable to furnish bond for the offense of which he is say convicted” to “unable or denied bond because offense for which he was convicted.” This is an not interpretation statute, consistent with the actual and I reject therefore it.
MCL 769.11b only requires that, if a defendant incarcerated trial awaiting and is “denied or unable to furnish bond for the convicted,” offense of which he is then he “shall” be jail awarded credit. The statute does not an place additional qualification or restriction on a right defendant’s receive credit stating that the denial or inability to furnish bond must be because crime. result, As a in a situation which a defendant is arrested for a new parole, crime while on the defendant will be “unable to furnish bond for the offense of which he is convicted” because a parole detainer placed that is on him by Further, the DOC.3 if bond, defendant requests it will be “denied” reason, trial court for the same in which case he will then be “unable” to post Thus, bond due to the denial. when a defendant is arrested for a new crime while on ultimately convicted, as was defendant in case, this he is entitled to jail credit.
If, however, a parolee is not actually convicted of the
newly
offense,
charged
then he obviously cannot be
awarded
credit
because there is no new “offense of
which he
In
situation,
is convicted.”
the Board
*50
must
then make a new determination
regarding
A
detainer is levied on defendants who are arrested while on
parole.
prevents
being
The detainer
a defendant from
released from
confinement until the Board makes its determination of how much time
“unexpired portion”
original
he must serve on the
of his
offense. See
791.238(1)
(2).
MCL
how much of served before the defendant sentence must be original 791.233; MCL MCL be See again paroled. can once 791.238(2). 791.234(11); If the 791.233e; MCL does have to serve determines that the defendant Board sentence, his initial the defen- an unexpired portion be credit for time served on his dant will then awarded in which a only sentence. It is this scenario original “unexpired serve the defendant who is “liable” to 791.238(2) initial sentence under MCL portion” of his the defendant must receive credit for time served that his sentence. Once the defendant serves original toward sentence, original additional of his he can portion and, completion, successful have paroled again upon be (4). 791.234(3) and discharged. sentence in which the defendant has Returning to the scenario a new crime while on assume that committed exactly year the defendant between the spends time, the sentencing. During time of his arrest and bond because of a post defendant unable bond, Similarly, detainer. if the defendant does request it will be denied the trial court for the same reason. crime, defendant is being After convicted of 10-year imprisonment. sentenced to a new 5- to term of 1-year The then whether the question period becomes that the defendant is credited toward the spent or new sentence. Recall that MCL original renders the reincarcerated defendant “liable” to serve sentence. “unexpired portion” out the of his Additionally, the Board does not make its determina- much, if any, tion of how additional time the defen- until he is dant must serve on his Thus, crime.4 acquitted convicted or of the new parole by engaging in conduct When a defendant violates his other offense, required committing than a new criminal the Board is *51 v Idziak Dissenting Opinion by Markman, J. determination whether to allocate the time a defendant spent jail as time served on his original sentence or as hearings (“probable hold a series of under hearing) MCL 791.239a cause” (“parole hearing). However, MCL 791.240a revocation” when a parole by committing defendant felony violates his a or misdemeanor punishable by imprisonment, implicitly MCL 791.240a allows a formal trial, acceptance plea agreement, or of a to serve aas substitute. MCL 791.240a(3) states: days paroled prisoner Within 45 a after has been returned or is facility available for return to a state correctional under accusation parole of a felony violation other than conviction or misde- punishable by imprisonment meanor state, under the laws this States, any territory the United or other state or of the United States, fact-finding hearing entitled to a on the charges parole before 1 attorney member of the board or an hearings designated by officer chairperson parole board. [Emphasis added.] light provision, In of this guidelines. the DOC enacted The most recent provides, pertinent part: version parolee charged M. A violating parole who is with a condition of preliminary parole is entitled to a hearing revocation conducted pursuant through Administrative Rule 791.7740 791.7750 to probable determine if there is cause to believe that violated s/he
parole except following under the circumstances: parolee 1. The has been bound over to the Circuit Court on a charge criminal charged parole which also is with viola- s/he cases, probable tion. In parole such cause charge for that violation is established based on the court’s action.... parolee 2. The charge has been convicted of a criminal for which charged parole also is with s/he violation. This includes a conviction by guilty contest) trial or (i.e., or plea. [sic] nolo contendré no In cases, prohable such parole charge cause for that violation is estab- lished based on the conviction. felony T. A convicted of a while on who receives Department new sentence to be served with the shall be found to have violated based on that new conviction and sentence. A hearing required. Policy violation is not [DOC Directive No. 06.06.100, 2007) (February 26, Parole Violation (emphasis Process original).] Mich 549 Dissenting Opinion Markman, J. only be made can his new sentence credit toward crime, shortly for the new at the time may only award before, the trial court because any at time thereafter. sentencing and not credit at sentenced to defendant was Here, hypothetical the basis of his new imprisonment new term of bond for unable to furnish and was criminal offense *52 awaiting trial. There- he was this new offense while the defendant fore, applies, the credit statute credit toward his new offense. year of is awarded creates a tension be- However, awarding jail credit sentencing the consecutive MCL 769.11b and tween 768.7a(2), that a defen- statute, requires which MCL his original of “remaining portion” serve the dant sentence, as de- his new beginning sentence before below. scribed AND PAROLE ELIGIBILITY SENTENCING
C. CONSECUTIVE defendant who was jail credit to a awarding After offense while on committing a new incarcerated 768.7a(2), MCL necessary to examine it becomes sentencing require- establishes consecutive which ment as follows: a term of person and sentenced to
If a is convicted felony person committed while the was imprisonment for a offense, previous the term parole from a sentence for a begin shall imprisonment imposed for the later offense of remaining expiration portion the of the run the of to at imposed previous offense. imprisonment for the term of Thus, whether will be the Board does not determine because convicted, accepted plea has defendant has been revoked until a crime, necessarily compute how agreement, Board does not for a new the unexpired required serve on his will he much time the defendant until that time as well. v Idziak Dissenting Opinion Markman, J. pivotal The this component provision that a defendant’s “term of imprisonment imposed later offense at begin expiration shall to run of the of the remaining portion imprisonment imposed term for the first previous glance, awarding jail offense.” At credit for a defendant’s second sentence he has before completed remaining portion of his first sentence appears inconsistent with the consecutive 768.7a(2). Yet, scheme upon established closer evaluation of portion” how the “remaining 768.7a(2) phrase in 769.11b, relates to MCL this potential conflict is alleviated.
In Wayne
Corrections,
Co Prosecutor v Dep’t
569, 584;
Mich
(1996),
defendant’s his violates who a defendant time that the resents parole in order to be serve have to otherwise would original again if eligible parole sentence his on once for a new consecutive sentenced had not been he Wayne why described Prosecutor Co sentence, which period “remaining portion” that the of time as the “may, of the terms violated because Board parole, require Thus, Board when the to serve.” him remaining portion a defendant’s determines original undertaking essentially discre- sentence, it is tionary have would the defendant about when decision given original eligible parole his sentence on been parole. In other on he committed while the violation 768.7a(2) require- a sensible establishes words, MCL parole should his who violates ment that a defendant “remaining portion” out whatever have to serve first “unexpired portion” of serve on the have to he would original term new minimum before the sentence his begin run. Such a offense can the second at requirement will serve a defendant ensures that committing a new his initial offense and violated for an remaining portion required crime, to serve the will be the defendant successfully complete parole, then be sentence, paroled, be discharged. is established MCL power “terminate” a sentence The Board’s applicable as follows: and is subject disciplinary prisoner prisoner other than a If a remaining in addition to to serve terms has 1 or more consecutive may serving, terminate board term he or she is any presently time after at sentence the has been served. of the sentence minimum term not remaining portion sentence does Thus, serving liability entire maximum term to serve the of his relieve the defendant discharged nor is neither because the that sentence terminated. *54 v Idziak Opinion by Dissenting Markman, J. least all the minimum time for each individual consecu- tive imposed. sentence that was
Therefore, before
is
a defendant who
unsuccessful in
completing
parole
because he committed a subse-
quent
begin
sentence,
crime can
serving his second
he
must first serve out the
portion of his first
remaining
sentence, which,
Prosecutor,
by Wayne
as noted
Co
must
be
by
established
the Board’s affirmative determination
of
long
how
the defendant must
on
serve
that sentence.6
is, according
Wayne
That
Board
the
to both
Co
and
Prosecutor MCL
768.7a(2), required
discretionary
concerning
to make a
determination
remaining portion
the
of the defendant’s
sentence is of
particular significance in this case. In
for it
order
to render this
791.233e(l)
determination,
requires
the
establish
DOC
guidelines
govern
“that shall
the
of
exercise
the
board’s
prisoners
act,”
discretion
as to the
...
release of
this
on
under
791.233e(2)
provides
which the DOC here
done.
has
then
guidance by describing
types
additional
the
factors
that are relevant
decisions,
making parole
e.g.,
the “offense for which the
incarcerated,”
“prisoner’s
conduct,”
the
prisoner’s
institutional
“the
prior
record,”
criminal
and
forth.
so
These factors must be evaluated
by
determining
any
Board
whether the defendant must serve
remaining portion on his initial sentence.
However, practice,
respon-
the Board seems to have abandoned its
sibility
respect by allowing
portion
remaining
in this
to be established
solely by
long
proceed
trial,
accept
how
it takes the defendant to
a
plea agreement,
Indeed,
brief,
on the new offense.
in its amicus curiae
repeatedly acknowledged
any
DOC
that it does not exercise
discretion
regard by stating
policy,
this
Department
that “as matter of
does
impose any
not
additional sanction on a
who
defendant
violates
given
prison sentence”;
and
Department
a new
“the
does not exercise
period
its
and
top
discretion
tack on another
of the new
parole eligible”;
established minimum date
an
before
becomes
inmate
policy,
Department merely
“as matter of
recalculates the
by adding
sentence under the
remaining
statutes for the defendant
(if
portions
any)
of the minimum
and the maximum from the
Thus,
sentence with minimum and maximum
conviction.”
not,
currently
required
statute,
the Board
does
as
the DOC
guidelines, Wayne
Prosecutor,
any
Co
make
affirmative determina-
using
regarding
tion
the relevant considerations
what
amount
time a
Wayne determination, the given a Board must make such the intend that did not Legislature “conclusion the Court’s 768.7a(2)] the all discretion held repeal to [MCL Board”). cannot Further, because, the defendant Parole until he has com- his second sentence begin sentence, remaining portion original of his the pleted the time allocating in addition to awarding jail credit for double- original to sentence would allow served the in a served, result counting of the time which would 768.7a(2). sentence, in of violation MCL concurrent commit- Thus, parole by who defendant violates one can receive credit toward ting only new crime sentence, jail requires the credit statute and because sentence, a defen- credit toward the new given that be to his have time served allocated dant cannot also the in this original sentence situation. be- analysis, to this particular importance
Of
the
be
as a
of
jail
component
cause
credit must
awarded
offense,
to run until
the
begin
second
which cannot
is
remaining
completed,
of the first sentence
portion
remaining portion
It is
on the
of his first sentence.
defendant must serve
identically
currently causing
to be
this failure that is
situated defendants
arbitrary factors,
differently
entirely
of
discussed
treated
on the basis
as
is, identically
being required
part
to
II.
situated defendants are
That
remaining
widely disparate
original
portions of their
sentences on
serve
serendipitousness
long
proceed
it
the basis of the
of how
takes them
sentencing,
any
regardless
has
to the
of whether that time
relation
severity
original
the new crime that constitutes
offense or
parole violation:
any
undertaking
concedes
it not
decision
Because the Board
is
By
should,
minimum,
regard,
it
so.
order that
do
this
this Court
at
holding
order,
issuing
run
such an
this Court would not
afoul of our
Council,
326,
City
3;
Flushing
333 n
At this it point, necessary becomes to determine the parole-eligibility defendant’s new date. calculating For such a date newly when there is a imposed consecutive 791.234(3)7 sentence, MCL 8provides: prisoner If a prisoner subject other than a disciplin ary terms, time is sentenced for consecutive whether any received at the time during same or at the life of original sentence, parole jurisdiction board has over prisoner purposes prisoner when the has ,[8] served the total time of the added minimum terms .. . 791.234(3) Although throughout I opinion, refer to MCL this this analysis equally applicable 791.234(4), nearly to MCL which is identical 791.234(3). only to MCL The provisions distinction between these two 791.234(4) applies prisoners “subject disciplinary who are time,” purposes resolving whereas MCL does not. For currently Court, issue before this this distinction is not relevant. any confusion, although To avoid it must be noted that “the jurisdiction prisoner purposes board has over the when the terms,” has served the total time of the added minimum 791.234(3), responsibility this does not alter the Board’s to make a remaining portion determination of the of the defendant’s sentence 768.7a(2) under MCL after conviction of the new offense. This is so because, although “remaining portion” decision does affect the date *57 eligible for which the defendant is for it does not affect the regarding actually decision paroled whether he is once he becomes eligible. differently, only jurisdiction Put parole the Board has to served, defendant after his total minimum terms have been but the Board jurisdiction purposes retains over the determining defendant for of parole eligibility. Further, factors that affect his if the Board could not any make parole-eligibility date, decisions that affected the defendant’s any regarding then it could not make “good determinations a defendant’s People v Idziak Dissenting Opinion by Markman, J. to The terms of the sentences shall be added maximum subsection, term under this compute the new maximum only discharge issued after the total of the shall be pris- sentences has been served.. . unless the maximum discharged upon satisfactory comple- paroled oner is parole. tion of the clear, consecutive subject
As is
a defendant who is
term,”
maximum
which
terms is now liable for a “new
old and new máxi-
by adding
is
calculated
simply
However,
used to describe the
language
mums.
on his
spend
amount of time that a defendant must
notably different from that used to
minimum terms is
specifically,
the new maximum term. More
determine
791.234(3)
that the defendant must serve
provides
MCL
eligible
early
prison
time” in
that would make the
release
“good
eligible
a defendant is
to receive credit for
those cases which
See, generally,
791.234.
time.”
MCL
791.234(1)
Moreover,
specifically
MCL
states
prisoner
sentenced to an indeterminate sentence and confined in
facility
years
a state correctional
with a minimum in terms of
...
jurisdiction
subject
prisoner
to the
board when the
of
equal
period
has served a
of time
to the minimum sentence
imposed by the
for the crime which he or
was
court
she
[Emphasis added.]
convicted....
791.234(3), stating
language
This
is distinct from that used in MCL
jurisdiction
purposes
.
the Board “has
over the
.
..”
added.)
791.234(1)
Thus,
(Emphasis
allows the Board to obtain
jurisdiction
purposes
original
over the defendant for
of his
sentence after
purport
he has served his minimum term for that offense. It does not
jurisdiction
the Board of that
has been
divest
once the defendant
applies.
convicted of a new crime for which MCL
then
Once
791.234(3) applies,
only prohibited
exercising
the Board is
from
jurisdiction
actually parole
in order to
the defendant until he has served
sum,
the combined minimum terms of the
and new sentences. In
although
consecutive
the Board cannot
defendant who
terms,
until he has
the total time
the added minimum
sentences
served
jurisdiction
the Board
retain
over the defendant for the
does
offense,
“remaining portion”
it maleethe
determination
which allows
768.7a(2).
required by MCL
*58
D. APPLICATION case, previous In this defendant was on for a crimes, offense he committed two new armed when robbery, 750.529, of a firearm possession during felony, the commission of a MCL 750.227b. He years’ impris- was sentenced to a new term of 12 to 50 robbery onment for the armed conviction received mandatory 2-year determinate sentence for the convic- of a firearm of possession during tion of commission felony. days jail Defendant between the spent date of his arrest and the date of and was not credit. jail awarded earlier, analysis described defendant
Applying days should have been awarded 98 credit because for the he was “denied or unable to furnish bond offense (emphasis of which he convicted.” MCL 769.11b [was] added). then to make an required The Board was 484 Mich
Dissenting Opinion by J. Makkman, affirmative determination of how much time he was required remaining portion serve on the of his first so, sentence. Instead doing automatically, the Board and indeed arbitrarily, remaining determined that the days was the 98 that defendant portion spent incarcer- Because, view, in my ated. defendant entitled to jail was credit, I would order the Board to render a determina- tion of the remaining portion of defendant’s original In sentence. order to correct the errors involved this matter, the time defendant has already served on his new sentence in excess days of the 98 credit must be first allocated as time served remaining on the portion of his sentence rather than his new Any sentence. time left over will then count toward defendant’s new sentence. If there is still time to be served on the remaining portion of his original sen- tence, however, the sentence for the new offense should suspended be until defendant has completed the re- maining portion of his original sentence.
II. arbitrariness *60 In contrast to the interpretation of the relevant statutes set forth in this opinion, the majority concludes that the jail statute, 769.11b, credit has no appli- cation to defendants who are incarcerated because of a result, violation. As a under the majority’s inter- pretation, identically are, situated parolees and will be, continue to treated differently for entirely seren- dipitous reasons. Specifically, the majority to refuses correct the practice Board’s of arbitrarily determining how much time a parolee who commits a new crime must serve on the remaining portion of his original 1(C) part sentence. See n 6 opinion. Indeed, of this majority only tangentially problem by discusses this characterizing argument defendant’s as follows: Idziak Dissenting Opinion by J. Mabkman, against credit a claims that the denial of
Defendant unequal results in treat- parolee’s new minimum sentence among parolees disparity it creates a [because] ment ... “arbitrary” plead guilty and other based on the decision to parolee’s date. factors that affect Legislature . .. Even if the had created such a distinc- tion, Supreme States Court has stated that the United against encouraging guilty pleas” per rule “there is no se may encourage guilty “squarely a a and has held that State plea.” plea by offering benefits in return for the substantial 212, 218-219; 492; Jersey, v New 439 US 99 S Ct Corbitt (1978).... L Ed 2d 466 against the new the extent the denial of credit
To results in some violators reach- minimum sentence parole eligibility on the ing their dates earlier than others congestion “arbitrary” such as or a basis of factors docket illness, equal judge’s this not amount to a violation of does protection. [Ante 572-573.] at misleading, majority thereby and the analysis This prob- the nature of the arbitrariness mischaracterizes is, issue majority presented lem. That views the commits a new this case as whether a defendant who “encouraged” can be to enter a crime while prolonging judicial process by instead of guilty plea majority a trial. insisting right on his While from prohibit correct that Corbitt does not state accepting a defendant to chose between compelling shorter sentence plea agreement offering potentially trial, the exchange giving up right go the actual arbitrariness majority altogether ignores here, to do nothing which has almost problem present rejects plea accepts whether a defendant with problem, To illustrate the true arbitrariness agreement. examples. consider two
626 484 549 Mich Dissenting Opinion by J. Markman,
In example, the first consider identically two situated defendants who proceeded both trial to after being arrested for a new offense while on parole. Assume that these defendants both received 5- to 10-year sentences for their years, offenses. After 5 both the defendants are paroled, and both commit the same new crime exactly year after being conditionally released from prison opt proceed to trial. Defendant A is convicted of the new crime and exactly days after his reincarceration is sentenced to an additional 5 to 10 years for the new crime. Defendant B is also convicted and sentenced to an year additional 5 to 10 term for the However, new crime. Defendant B is not sentenced until 1 year after he was arrested and incarcerated because: (1) the prosecutor requested multiple continuances for (2) reasons unrelated case; to the defendant’s the trial (3) ill; judge took a police officer whose testimony was vacation, needed was on which required the trial court grant a continuance. Under the majority’s interpre- tation credit statute, A Defendant would be eligible 11 months earlier than Defendant B for no reason having anything to do with the relevant statutes.
In the second example, consider two identically situ- ated defendants who both accepted plea bargains. As- sume that A defendants and B committed the same crime and were both sentenced to 5- to 10-year terms of imprisonment their offenses. They are both paroled after serving years, and both commit the same new crime exactly 1 year after being paroled. The defendants are then offered the same plea bargain, which agree both to take. A Defendant is able plead guilty in 1 month and be sentenced to a new 5- to term, 10-year B, while Defendant for one of the reasons set previous forth paragraph, is not sentenced for Idziak *62 by Dissenting Opinion Markman, J. A eligible 6 months. Defendant will be basis, B again, months earlier than Defendant on the of entirely arbitrary factors. can be seen two defendants who comparing
As
not,
agreements
majori-
who do
accept plea
two
ty’s
against
claim that there is “no
se rule
encour-
per
is an
aging guilty pleas”
inapt characterization of
here,
at
that
problem
arbitrariness
issue
which is
situated defendants are
in an
identically
treated
arbi-
fashion,
they
trary
regardless
proceed
whether
trial
not. More
the Board’s current
specifically,
or
failing
statutory
to undertake its
practice
responsi-
bilities,
waiting for a defendant
to be con-
passively
crime,
mechanically
victed of a new
and then
conclud-
ing
spent
that
the amount of time a defendant has
trial
awaiting
automatically
on his new offense
consti-
remaining portion
original
tutes the
of the
serve,
identically
the defendant must
treats
situ-
ated
in a potentially widely disparate
defendants
fash-
ion, regardless
they
of whether
deal or not.
accept plea
treatment
wholly arbitrary
This
is based on
factors that
nothing
have
to do with a defendant’s
or
culpability
Rather,
the severity
with
of his
or new crime.
that a
remaining portion of the sentence
defendant
trial,
must
incarcerated
spend
prolongs
before
which
date after the
sentence is
parole-eligibility
imposed,
solely
fortuity
becomes a function
of “the
long
justice system
how
it takes the criminal
to proceed
sentencing.
to defendant’s final
. . .”
People Wright,
(2006)
1138,
(MARKMAN, J.,
474 Mich
dissenting).
little
Significantly,
majority
analysis
devotes
serendipity
discussion to the
which the
process
state
an
and refuses
deprives
liberty
individual of his
compel
satisfy
obligations
the Board to
its
under
affirmative determination of what portion” must be served on an sentence before the fashion, In beginning summary of new sentence. majority concludes that “it entirely rational for the Legislature parolees to treat differ- nonparolees However, . . . Ante ently given .” at 572. that it is not the disparate parolees treatment of as compared to non- parolees gives rise to the underlying arbitrariness I problem, question majority whether has ad- equately addressed the relevant issues this case.11
III. RESPONSE TO THE MAJORITY *63 In response to this opinion, majority makes three specific arguments that warrant further discussion. First, it argues that the Board authority has no to alter prisoner’s a parole eligibility by date stating that “[t]he in flaw instant opinion’s] theory [the that 11 majority correctly theory The notes that the in set forth this case will problems. not upon resolve all arbitrariness It asserts this based hypothetical identically parolees scenario wherein situated violate their parole awaiting being and are both incarcerated trial without allowed to post parolees acquitted, bond. Ante at 574 n 23. Both are and the Board required remaining portion determines that neither is to serve a of their parolees placed parole. sentences. Both are then back on In the majority’s hypothetical, proceed month, A Parolee is able to to trial in one B, factors, arbitrary while proceed Parolee based on is unable to to trial year being until alleged parole one after arrested for the violation. The spends result is that Parolee B in more months than Parolee A. However, this non-parolee situation is no different than when two crimes, charged bond, ultimately acquit defendants are with denied ted, spending jail awaiting with one defendant one in month trial and the spending year jail awaiting other defendant Although one in trial. these undeniably arbitrariness, situations contain an element of there is no practical remedy. obvious or The distinction between these situations and arbitrary parolees treatment directed toward in the instant case is parolees remedy, that do have which is be awarded credit toward they ultimately their new offenses when are convicted. Idziak by Dissenting Opinion Markman, J. a function of statute: MCL 791.234. parole eligibility consecutive to imposed Unless a new sentence is sentence, in the offender’s new which case then eligibility governed date is parole date does 791.234(3), parole eligibility the offender’s Fur- original). Ante at 583 change.” (emphasis not only that the Board’s “discre- ther, majority states parole in determinations of wor- tionary authority lies I original). Ante at 584 n 29 (emphasis thiness" respectfully disagree. fact, authority possess
In the Board does date. While the prisoner’s parole-eligibility determine a establishes the majority is correct MCL 791.234 date for a there are parole eligibility prisoner, initial date, as a practical various instances which matter, example, must be recalculated. For when a and is reincarcerated for that parole violates his violation, pris- the Board must determine whether the and, if parole oner will be another given opportunity afforded, such an will be on what date the opportunity is in fact Board will consider whether date for deserving parole.12 Once that new majority parole- can set a If the is correct that Board never eligibility date that is different from the date established 791.234, parolee’s parole then once a has been revoked for a violation, is, re-paroled. he never be That if a defendant who was could 5, 30-year paroled year on 5- to sentence was violated year 6, parole revoked, and had his the Board would not then he able to *64 re-parole powerless parole-eligibility him a because it would be to set new However, contrary, despite majority’s the statement to the it date. acknowledges authority implicitly it that the Board has such when states may previous parole “[t]he that Parole Board account for violations making” prisoner’s as current should be decisions to whether a sentence parolee’s discharged. (emphasis terminated or a sentence Ante at 586 added). parolee previous parole A could not have “violations” unless a and subse Board had determined that he had committed violation quently parole-eligibility prisoner again date on which the was set new parole majority paroled positioned time. The to violate a second Mich Opinion by Dissenting Markman, J. reached,
consideration has been the Board must then look to the factors in MCL 791.233e and the DOC 4, guidelines, see note to determine supra, whether the prisoner worthy.” is, is “parole That when the Board possible parole date, sets new it setting a new “parole eligibility” only date. It is the prisoner when reaches “parole that new eligibility” date that his “parole is actually worthiness” considered.13
Second, the majority
that
argues
Board has no
duty to make an affirmative determination as to how
long a defendant must serve on
sentence by
inquiring as to
statutory
authority
requires
Board to make the “remaining portion” determination.
(a)
statutory
The
authority consists in sum of: MCL
768.7a(2), which states that when a parolee violates his
parole and is sentenced to a new term of imprisonment
is to run consecutive to his original offense “the
term of imprisonment
imposed for the later offense
begin
shall
run
at the expiration of the remaining
portion of the term of imprisonment
for the previous
(b)
offense”;
MCL 791.234(1), which vests the Board
jurisdiction
with
over
when he “has
thereby appears
possesses
authority
to concede that the Board
to set
parole-eligibility
parolee
parole.
date even after a
has violated
13Additionally, my disagreement
majority’s
with the
distinction be
parole eligibility
parole
that,
tween
purposes
worthiness is
present analysis,
entirely
it
majority
academic. Even if the
is correct
authority
that the Board’s
subsequent
revoke
and establish a
date at which that defendant will be re-evaluated and that
this date
parole-worthiness date,
constitutes the new
responsibility
the Board’s
remaining portion
make a determination as to the
of a defendant’s
768.7a(2)
pursuant
is,
to MCL
remains the same. That
once a
possesses
authority,
violates
the Board
under
view,
majority’s
to determine at what future date it will reconsider his
Regardless
worthiness.
of whether that future date is termed the
“parole-eligibility
“parole-worthiness date,”
date” or the
period
the time
between the
remaining
violation and that future date is the
768.7a(2).
portion
described MCL
*65
v Idziak
Dissenting Opinion Markman, J.
period
equal
served a
of time
to the minimum sentence
(c)
imposed
offense;
the court” for the
determining
791.241,
that,
which states
after
parole
occurred,
a
violation
the Board “shall
whether
reinstating
rescinding
an order
such
or
enter
original
parole
other order as it
order of
or enter such
may
necessarily
jurisdic-
Thus,
see fit.”
the Board
has
paroled, and,
is
once it is
tion over
who
parolee
parole, the
determined that the
has violated his
reflecting
Board “shall” enter an order
taking, including
what action it is
whether the
violator must
“remaining portion”
on his
offense.14
serve
Despite
statutory provisions,
majority
these
statutorily
“[n]one
claims that
of these
defined func-
tions of the Parole Board includes a
requirement
make
the Parole Board
an ‘affirmativedetermination
long
[his first]
the defendant must serve on
sen-
how
”
original).
(emphasis
tence.’ Ante at 585
While the
majority is
that no
statute alone
correct
individual
requires the
to make an affirmative determina-
Board
concerning
“remaining portion”
tion
that a
interpret
serve,
violator must
this Court does not
taking
enter an
Because
Board “shah”
order
some action after
determining
occurred,
majority
whether
violation has
asserting
statutory requirement
incorrect in
that there is “no
that the
‘remaining portion’
an
Parole Board make
affirmative
determination.”
Additionally, Wayne
Prosecutor,
584,
Ante at 587.
Co
451 Mich at
has
already
remaining portion
determined that
the Board must make a
determination,
portion,
which consists of “whatever
the mini
between
mum and the maximum of the earlier sentence that
the Parole Board
may,
parole, require
because the
violated the terms of his
him to
Thus,
impose any remaining portion,
if the
it
serve.”
Board intends
Otherwise,
affirmatively
remaining portion
must
so.
there
do
is no
Thus,
required
majority
which the defendant can be
to serve.
even if the
duty
is correct that the Board has no
to make an affirmative determina
portion,
making
remaining
tion as to the
the result of not
that determi
remaining portion
nation
that there is no
the defendant must
begins
serve before his new sentence
to run.
in isolation clauses or paragraphs subsections or statutes, together even which comprise part larger of a statutory Rather, scheme. each of the three principal statutes discussed herein must be read context with ascertain other statutes in order to meaning *66 “remaining used in portion” 768.7a(2), and to entity determine which must make the “remaining portion” determination. pertinent When the are laws interpreted together, be, as they must it becomes as reasonably clear as it can very be this difficult and convoluted area that the Board is obligated to make concerning parolee’s decisions “remaining portion,” so that the parolee begin does not to receive credit toward his new sentence until he has an appro- served priate amount of additional time on his original sen- tence as a result of a majority’s violation. The resistance to reading the relevant statutes in pari materia leads I to what view as an unreasonable inter- (a)
pretation of MCL 769.11b which: equally situated may defendants be treated in a widely disparate man- (b) ner upon entirely based arbitrary factors; pa- rolees who commit may violations escape full consequences of their actions if the precluded Board is from imposing a proportional “remaining portion.” The Legislature has not results, mandated these and I disagree therefore with the majority’s unharmonious reading of the law.
rv conclusion MCL 769.11b requires “any person” “shall” be jail awarded credit being “because of denied or unable to furnish bond for the offense of which he is con- victed . . . .” Contrary to the majority’s interpretation, there is no limitation or qualification present in this statute requiring that a defendant be denied or unable v Idziak Dissenting Opinion J. Markman, any furnish bond for reason related to the new Rather, denied only itself. the defendant need be offense offense. Defen- or unable to furnish bond for “unable” to furnish bond unquestionably dant here was and, thus, of he was convicted for the offense which jail credit toward the sentence days entitled to spent for the amount of time he his new offense Board, in awaiting sentencing. The Parole incarcerated determi- view, must also undertake an affirmative my origi- “remaining portion” of the of defendant’s nation beginning nal that he must serve before 768.7a(2). The time he has served new sentence. days credit on his new sentence excess instead remaining portion must first be to that applied sentence, left over any of defendant’s new with If being then counted toward his new sentence. defen- not an amount of time in excess of yet dant has served satisfy credit sufficient to the remain- days the 98 sentence, then the new ing portion of his suspended sentence must be until defendant has com- *67 length majority of time. Because the reaches pleted I using a different result what view as an erroneous and statutes, incomplete reading of the and because the arbitrariness of majority perpetuate present would system by an affirmative failing require Board, I respectfully determination from the dissent.