Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Upshaw v. Michigan Department of Corrections

United States District Court, W.D. Michigan, Southern Division

November 3, 2016




         Plaintiff Michael K. Upshaw, a former prisoner incarcerated by the Michigan Department of Corrections (MDOC), brought this action against the MDOC and several MDOC officials because he was incarcerated for 968 days after his sentence expired. After dismissal of most of the defendants by stipulation, the remaining defendants are: Raymond Tamminga, a former Deputy Warden at the Charles Egeler Reception and Guidance Center (RGC); Bonnie Kenzie, an employee in the MDOC's Time Computation Unit (TCU); Tracie Peek, a Departmental Tech for the TCU; Connie Trevino, Records Audit Specialist for the TCU; and Diana Judge, Records Administrator for the TCU. Before the Court is Defendants' motion for summary judgment (ECF No. 48), and Plaintiff's response thereto (ECF No. 50). Defendants have also filed a reply in support of their motion (ECF No. 51). For the reasons discussed herein, Defendants' motion will be denied.


         On April 16, 1997, Plaintiff pleaded guilty in Oakland County Circuit Court to: armed robbery, Mich. Comp. Laws § 750.529 (Count I); possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b (“felony firearm”) (Count II); being a felon in possession of a firearm, Mich. Comp. Laws § 750.224f (“felon-in-possession”) (Count III); and being a habitual offender, third offense, Mich. Comp. Laws § 769.11 (Count IV). The court issued a sentence of imprisonment of 6 to 20 years for the armed robbery offense, 5 to 10 years for the felon-in-possession offense, and a two-year consecutive sentence for the felony-firearm offense. The court then vacated the sentences for armed robbery and felon-in-possession and issued a 5 to 10 year sentence on the habitual offender charge, with a two-year consecutive sentence for the felony-firearm offense and 188 days of credit for time served. (See J. of Sentence, ECF No. 31-1.) The portion of the judgment describing the sentences reads as follows:

         (IMAGE OMITTED)

         (Id. at PageID.279.)

         After the judgment issued, Plaintiff was confined at the RGC. Plaintiff alleges that Defendants Peek and Kenzie were responsible for reviewing the judgment and calculating a maximum discharge date, and that Defendant Tamminga was responsible for supervising them. Plaintiff alleges that Peek and/or Kenzie determined that the judgment did not accurately reflect Plaintiff's intended sentence and informed Tamminga. On May 8, 1997, Tamminga sent a letter to the sentencing judge, stating:

The judgment of sentence that we received has vacated counts I and III for a habitual 3rd, however, count IV which is the habitual, has indicated a lessor [sic] term of 5 years to 10 years than the initial term of six years to 20 years. Was it the courts [sic] intent to have the habitual as less time? Please review your records and if necessary, amend and advise.

(Letter, ECF No. 31-3, PageID.284.) No response to the letter was ever received. And although Plaintiff's sentence “indicated a less[e]r term of 5 years to 10 years, ” it was entered into the MDOC's records as a sentence of 6 to 20 years. Plaintiff alleges that neither Tamminga, Kenzie, nor Peek took any further action to correct the MDOC's records or to follow-up with the sentencing court.

         In September 2010, an audit of Plaintiff's sentencing records discovered an “error” in the calculation of his sentence. (Judge Aff. ¶ 9, ECF No. 51-3.) On September 28, 2010, Defendant Trevino sent an email with a copy of the judgment of sentence to the chambers of the judge to whom Plaintiff's criminal case was originally assigned, asking “whether the court really vacated Ct #1 (6y - 20y sentence) and imposed a lesser term of 5y- 10y sentence on the Ct. #4 (habitual offender 3rd).” (Email, ECF No. 28-2, PageID.232-33.) Court staff responded that they would check their records.

         Over a month later, on November 1, 2010, Defendant Trevino sent a letter to the new judge assigned to Plaintiff's case, asking for review of the judgment:

         The Judgment imposed the following sentences:

Ct #1 - Armed Robbery

6 year to 20 years vacated

Ct #2 - Weapon-Felony Firearm

2 years to 2 years

Ct #3 - Felon Poss Firearm

5 years to 10 years vacated

Ct #4 - Habitual Offender 3rd . . .

5 years to 10 years

During a routine review of the sentencing documentation prior to [Plaintiff's] upcoming parole, it was noted the term imposed on Ct #4 Habitual Offender 3rd Conviction (5 years to 10 years) is less than the term imposed on Ct #1 for Armed Robbery (6 years to 20 years).

Our records show that we addressed this with the court in May, 1997, however, no amended judgment has ever been issued. Therefore, at this time we would request the court's review to determine if clerical error exists with regard to the term imposed on the Ct #4 Habitual Offender 3rd Conviction.
We currently have entered the Armed Robbery as the 6 year to 20 year sentence, but need documentation to support this, or need an amended [sic] clarifying the sentence which should be entered. Please note if it is determined the term should actually have been 5 years to 10 years for the Robbery Armed, then we would request immediate notification as this would result in his immediate release from prison.
If the court finds an amended Judgment is warranted, it is requested one be completed so we may review our time computation and release dates. If resentencing is necessary to accomplish this, it is requested this process be considered and/or initiated.
However, if the court finds no amended Judgment will be issued, it is requested we receive notification of same, via email or letter, [ ] so we may resolve this matter in our records and not contact the court again.
Any amended judgment should be sent to this writer at the address below. . . .

(11/1/2010 Letter, ECF No. 51-3, PageID.458-59.)

         On November 18, the court responded that it had confirmed with the prosecutor's office that the 5 to 10-year sentence was correct. (Items for Discussion W/Diana, ECF No. 29-2, PageID.245; see also handwritten note, ECF No. 29-1, PageID.243.) However, court staff were still attempting to retrieve a videotape of the sentencing hearing. (Id.) On or about November 22, Defendants Trevino and Judge decided to wait another week to see what the videotape would show. (Id.) Judge wrote that the sentence was “so unique and not understandable. Why habitualize and reduce sentence?” (Id.) On November 24, Trevino again contacted court staff, who advised that they were having trouble locating the videotape. (Emails, ECF No. 51-3, PageID.460-61.) A few hours later, Trevino sent an email withdrawing the request for the videotape and explaining that the MDOC would have to release Plaintiff because they “have no other choice but to process the Judgment as it is written, and as the Prosecutor's Office has verified[.]” (Id. at PageID.460.) Defendants then waited for several more days, until after the Thanksgiving holiday, to begin ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.