216 Mich. App. 242 | Mich. Ct. App. | 1996
RILEY
v.
PAROLE BOARD
Michigan Court of Appeals.
Before: DOCTOROFF, C.J., and McDONALD and J.B. SULLIVAN,[*] JJ.
PER CURIAM.
Plaintiff, who is currently serving a life sentence, sought a writ of mandamus to compel defendant to comply with its statutory duty to conduct a parole interview with plaintiff. The trial court granted defendant's motion for summary disposition. We affirm.
First, plaintiff contends that, by failing to interview him after he had served four years of his sentence, defendant violated his statutory right to appear before the parole board. The trial court held that plaintiff was not entitled to a writ of mandamus.
To obtain a writ of mandamus, a plaintiff must have a clear legal right to the performance of the specific duty sought to be compelled, the defendant must have a clear legal duty to perform it, and the plaintiff must be without any other adequate legal remedy. Garner v Michigan State Univ, 185 Mich App 750, *244 757; 462 NW2d 832 (1990). Plaintiff should have informed defendant of its failure to interview him by sending the appropriate parole reminder form to defendant.[1] Because plaintiff could have pursued this remedy but failed to do so, the trial court correctly ruled that plaintiff had not exhausted his other adequate legal remedies.
Next, plaintiff argues that the amended version of the "lifer's law" violates the Ex Post Facto Clauses of the Michigan and United States Constitutions. A statute that affects the prosecution or disposition of criminal cases involving crimes committed before the effective date of the statute violates the Ex Post Facto Clauses if it (1) makes punishable that which was not, (2) makes an act a more serious criminal offense, (3) increases the punishment, or (4) allows the prosecution to convict on less evidence. People v Moon, 125 Mich App 773, 776; 337 NW2d 293 (1983).
The Ex Post Facto Clauses were intended to secure substantial personal rights against arbitrary and oppressive legislation, and not to limit legislative control of remedies and procedures that do not affect matters of substance. Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. People v Russo, 439 Mich 584, 592-593; 487 NW2d 698 (1992).
The version of the "lifer's law" in effect at the time of plaintiff's complaint stated, in relevant part:
(4) A prisoner under sentence for life or for a term of years, other than prisoners sentenced for life for murder in the first degree and prisoners sentenced for life or for a *245 minimum term of imprisonment for a major controlled substances offense, who has served 10 calendar years of the sentence is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions:
(a) One member of the parole board shall interview the prisoner at the conclusion of 4 calendar years of the sentence and biennially thereafter. [MCL 791.234(4); MSA 28.2304(4)].
In 1992, the Legislature amended subsection 4(a), which became subsection 6(a), to state that the parole board shall interview a prisoner only at the conclusion of ten calendar years and every five years thereafter. Although the statute was amended again in 1994, none of the 1994 amendments affect the portions of this statute relevant to this appeal. MCL 791.234(6)(a); MSA 28.2304(6)(a).
Plaintiff claims that the amended version of the "lifer's law" increases the punishment because it makes him ineligible for parole after four years. We disagree.
Pursuant to the pre-1992 statute, a prisoner was only subject to the jurisdiction of the parole board and eligible for release after ten years of imprisonment. Although the 1992 amendment stated that prisoners sentenced for crimes committed after October 1, 1992, would not be eligible for parole until they have served fifteen years of their sentence, the amendment retains the ten-year eligibility requirement for prisoners sentenced for crimes committed before October 1, 1992. MCL 791.234(6); MSA 28.2304(6). Plaintiff was sentenced for a crime committed before October 1, 1992. Although the amended statute changes the timing of parole hearings, plaintiff's eligibility for parole is unaffected by the challenged *246 statute. Because the timing of the first hearing does not affect plaintiff's substantive rights, we find that the amended version of the "lifer's law" that addresses eligibility for parole does not violate the Ex Post Facto Clauses of the Michigan and United States Constitutions.
Affirmed.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
[1] This form is available to all prisoners in their housing units. MDC Policy Directive 06.05.106(P).
