United States District Court, W.D. Michigan, Southern Division
MICHAEL K. UPSHAW, Plaintiff,
MICHIGAN DEPARTMENT OF CORRECTIONS et al., Defendants.
HOLMES BELL, UNITED STATES DISTRICT JUDGE
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.
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:
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
(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
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.
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:
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
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.)
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 ...