PEOPLE v McKERCHIE
Docket No. 321073
Court of Appeals of Michigan
July 28, 2015
311 Mich App 465
Submitted July 7, 2015, at Lansing. Decided July 28, 2015, at 9:00 a.m.
Michael D. McKerchie, III, was charged in the Lake County Trial Court with prison escape,
The Court of Appeals held:
1. Under
2. McKerchie also argued that he could not be prosecuted for escaping from the facility because his incarceration there was unlawful. Specifically, he maintained that the Department of Corrections could not incarcerate him at the facility without first having conducted a parole-revocation hearing, which it did not do. It was not apparent on the record, however, that McKerchie was entitled to a hearing before he could be sent to and held at the facility. When the department arrests a parolee on a suspected parole violation,
Reversed and remanded for further proceedings.
CRIMINAL LAW — PRISON ESCAPE — PAROLEES — VIOLATIONS OF PAROLE CONDITIONS.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Craig R. Cooper, Prosecuting Attorney, and Linus Banghart-Linn, Assistant Attorney General, for the people.
State Appellate Defender (by Brett DeGroff) for defendant.
Before: O‘CONNELL, P.J., and OWENS and M. J. KELLY, JJ.
PER CURIAM. In this dispute over the proper interpretation of the prison escape statute,
I. BACKGROUND AND BASIC FACTS
The Department of Corrections (the Department) operates a residential reentry program (the Program), “to provide parolees with special services to help them transition into the community.” People v Smith, unpublished opinion per curiam of the Court of Appeals, issued July 28, 2011 (Docket No. 300772), p 2 (quotation marks and citation omitted).1 The Department administers the program at a facility in Lake County (the Lake Facility), among other places. It operates the facilities consistently with the requirements for a corrections center; the facilities are secured and guarded by the Department‘s officers 24 hours a day. Further, the inmates are not free to leave and must abide by the Department‘s rules for prisoner discipline. Id. “An offender may be placed into the Program in one of two ways: the offender can be paroled, but required to complete the Program as a condition of parole, or may be entered into the Program after a parole violation while on parole in a community.” Id.
In December 2012, McKerchie was released into the community on parole. However, in May 2013, officers picked up McKerchie on suspicion that he had violated the conditions of his parole. The officers alleged that McKerchie was a suspect in several vehicle break-ins and had admitted to possessing stolen property and trading
In July 2013, McKerchie went missing from the Lake Facility. Officers discovered that someone had knocked the screen out of a window in the room referred to as the substance abuse room. There were prints that suggested the individual then climbed wire mesh outside the room to the roof. On the roof, officers discovered a laundry bag containing mail addressed to McKerchie and clothing. A blanket had been thrown over the razor wire. It was discovered that a car had been stolen in Lake County. A witness testified at McKerchie‘s preliminary examination that a man with a shaved head and wearing a white T-shirt, bright orange shorts, tube socks, and Velcro flip-flops got into the car and drove it away. That vehicle was discovered abandoned in Newaygo County. Officers later arrested McKerchie, and the prosecutor charged him as a fourth-offense habitual offender, see
The trial court held a preliminary examination in November 2013. At the preliminary examination, McKerchie‘s lawyer argued that there was no evidence to connect McKerchie with the stolen car. He also noted that the evidence showed that McKerchie was being held at the Lake Facility for a parole violation. Because
In February 2014, McKerchie‘s lawyer moved to quash the bindover and dismiss the charge against McKerchie on the ground that a parole violation cannot serve as the basis for a conviction under
At the hearing, McKerchie‘s lawyer conceded that McKerchie voluntarily accepted incarceration in the Lake Facility as a new condition of his parole after it was alleged that he had violated his earlier parole. He also agreed that his client “changed his mind later on and went over the wire, he left without permission” and, in that way, violated the new condition of his parole. Nevertheless, because a person “violating the conditions of a parole” is defined to not be “an escapee” for purposes of the prison escape statute,
The trial court agreed that McKerchie‘s escape from the Lake Facility could not constitute a violation of
The trial court entered an order dismissing the charge in February 2014. The Attorney General then appealed in this Court.
II. MOTION TO QUASH
A. STANDARDS OF REVIEW
The Attorney General argues that the trial court erred when it interpreted
B. PRISON ESCAPE
The Legislature made it a felony for a “person imprisoned in a prison of this state” to break prison and escape, to break prison even though an escape is not made, to escape, or to leave prison “without being discharged by due process of law....”
With the last sentence of
As this Court has explained, there is a distinction between being granted parole and being released on parole; a prisoner can be paroled and yet remain in prison for a time. Armisted, 295 Mich App at 38-41. A parolee may be confined as a condition of parole, as was the case here, or may be confined pending resolution of some other matter. Id. at 39 (noting that the parole board may require a parolee to provide evidence that arrangements have been made for the parolee‘s employment, education, or care). The use of the participial phrase “violating the conditions of a parole” to modify “person” places the emphasis on the person‘s status as someone who has violated or is violating a condition of parole rather than the person‘s status as a parolee. The emphasis on the violation coupled with the reference to the person‘s status as “not an escapee” suggests that the Legislature intended to clarify that a person‘s violation of a condition of parole cannot be used as a substitute for the elements of the offense of prison escape—that is, such a violation does not by itself make the person an “escapee.” But it does not follow from this that a person on parole can never be an escapee or that an
The Legislature divided the prison escape statute into three subsections. In the first subsection, the Legislature established what constitutes prison escape, which generally requires breaking, escaping, or leaving the confines of a particular place.
The “grant of parole generally constitutes permission to leave confinement with certain restrictions.” Armisted, 295 Mich App at 38-39. Even after a parolee is released into the community, he or she remains in the Department‘s custody. People v Kern, 288 Mich App 513, 521; 794 NW2d 362 (2010);
This construction is also consistent with the previous version of the statute, which provided: “Any person violating the conditions of his parole shall not be deemed to be an escapee under the amendatory provisions of this act.” See
Finally, McKerchie‘s preferred reading would also create an incongruous result: a parolee confined to a prison as a condition of parole would be immune from prosecution for escape from that prison, whereas a parolee confined in the same prison without such a condition would be subject to prosecution for escape. We do not believe the Legislature intended to differentiate between parolees in this way. Although McKerchie‘s preferred construction is possible, we do not agree that it is the most plausible. When the last sentence of
The trial court erred when it interpreted the last sentence in
III. UNLAWFUL INCARCERATION
On appeal, McKerchie also argues in the alternative that he could not be prosecuted for prison escape from the Lake Facility because his incarceration there was unlawful. Specifically, he maintains that the Department could not incarcerate him at the Lake Facility without first conducting a parole revocation hearing, which it did not do.
It is not apparent on this record that McKerchie was entitled to a parole revocation hearing before he could be sent to and held at the Lake Facility. Once released into the community, a parolee does have a liberty interest in his or her continued release on parole. In re Parole of Haeger, 294 Mich App 549, 574; 813 NW2d 313 (2011). But this liberty interest is limited, and a parolee may be arrested without a warrant “where there exists reasonable cause to believe that he has violated parole.” Jones v Dep‘t of Corrections, 468 Mich 646, 652; 664 NW2d 717 (2003). When the Department arrests a parolee on a suspected violation of parole, it must incarcerate the parolee pending a hearing on the charge of parole violation.
In this case, the Department apparently did not revoke McKerchie‘s parole; rather, it elected to continue McKerchie‘s parole subject to a new condition with which he agreed—namely, that he complete the Program at the Lake Facility. The offer of continued parole with a new condition when coupled with McKerchie‘s
It is also not clear that Michigan law recognizes a right to use self-help to avoid unlawful imprisonment in this state‘s penal institutions, as opposed to the use of legal (and peaceable) means for challenging an improper incarceration. See Moses v Dep‘t of Corrections, 274 Mich App 481, 485; 736 NW2d 269 (2007) (stating that the writ of habeas corpus is available to determine the legality of the restraint under which a person is held). It is true that this Court has stated that a person may not be convicted under
For these reasons, we decline to address this issue further. Whether and to what extent McKerchie is entitled to assert the illegality of his confinement as a defense is a matter that should be addressed in the first instance by the trial court.
IV. CONCLUSION
The trial court erred when it interpreted the last sentence of
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
O‘CONNELL, P.J., and OWENS and M. J. KELLY, JJ., concurred.