Circuit Court LC No. 93-000075-FC
Before: Gadola, P.J., and Markey and Ronayne Krause, JJ.
appeals as on leave granted the circuit court's order
denying his motion for written approval to make defendant
eligible for early parole under MCL 769.12(4). The Parole
Board had also previously received a rejection from the court
in response to its request to grant defendant early parole.
We reverse and remand for further proceedings.
context to our discussion of the factual and procedural
history of the case, we begin with a brief overview of the
law implicated in this matter. MCL 769.12 addresses
fourth-offense habitual offenders such as defendant, and this
appeal concerns the construction of Subsection (4) of the
statute, which provides:
An offender sentenced under this section or section 10 or 11
of this chapter for an offense other than a major controlled
substance offense is not eligible for parole until expiration
of the following:
(a) For a prisoner other than a prisoner subject to
disciplinary time, the minimum term fixed by the sentencing
judge at the time of sentence unless the sentencing judge or
a successor gives written approval for parole at an earlier
date authorized by law.
(b) For a prisoner subject to disciplinary time, the minimum
term fixed by the sentencing judge.
Because the crimes committed by defendant were perpetrated
before December 15, 1998, he is not a "prisoner subject
to disciplinary time." MCL 791.233c ("As used in
this act, 'prisoner subject to disciplinary time'
means that term as defined in . . . [MCL] 800.34[.]");
MCL 800.34(5)(a) (A "prisoner subject to disciplinary
time" encompasses prisoners sentenced to indeterminate
terms of imprisonment for enumerated crimes committed
"on or after December 15, 1998[.]"); Hayes v
Parole Bd, 312 Mich.App. 774, 779 n 1; 886 N.W.2d 725
(2015). Accordingly, Subsection (4)(a) of MCL 769.12 governs,
as opposed to Subsection (4)(b).
turn to the facts of the case. In 1993, defendant was
convicted by a jury of bank robbery, MCL 750.531, conspiracy
to commit bank robbery, MCL 750.157a; MCL 750.531, and
possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. He was sentenced as a
fourth-offense habitual offender, MCL 769.12, to concurrent
prison terms of 27 to 50 years for the bank robbery and
conspiracy convictions, preceded by a consecutive two-year
sentence for the felony-firearm conviction. And those three
sentences were to be served consecutively to a sentence that
defendant was already serving. Defendant's convictions
and sentences were affirmed by this Court on appeal.
People v Grant, unpublished per curiam opinion of
the Court of Appeals, issued February 14, 1997 (Docket No.
167327). Our Supreme Court then denied defendant's
application for leave to appeal. People v Grant, 456
Mich. 954; 577 N.W.2d 687 (1998).
"calendar minimum date" for defendant's release
from prison is June 30, 2022; however, his "net minimum
date" for release-defendant's calendar minimum date
less disciplinary credits-was December 31,
2017. Accordingly, in December 2017, subject to
the "written approval" prerequisite, defendant
became eligible for parole under MCL 791.233(1)(b) and MCL
791.233b(m) and (x). And the Parole Board acquired jurisdiction
pursuant to MCL 791.234(3). In August 2017, the Parole Board
sent a letter to the circuit court indicating that as a
result of an interview with defendant, it had an interest in
paroling defendant. The Parole Board, citing MCL 769.12(4)(a),
requested written approval from the circuit court to parole
defendant before his calendar minimum date.
circuit court judge, who was the successor of the sentencing
judge, denied the Parole Board's request. In a letter to
the Parole Board, the circuit court emphasized that it was
not the sentencing court, and therefore, it was unfamiliar
with the facts and did not know the reasoning for its
predecessor's decision to impose the particular sentence.
The circuit court further explained that the Parole
Board's letter contained "no basis for the request
to ignore the habitual status for sentencing nor what the
victim['s] request was at the time of sentencing."
Additionally, the court complained that it had not been
provided the presentence investigation report to review for
purposes of contemplating the Parole Board's request.
Finally, the circuit court stated that it was "not
comfortable" altering the sentence.
March 2018, defendant filed a motion seeking written approval
of the Parole Board's jurisdiction to grant defendant
parole; he asked the circuit court to declare him eligible
for early parole. Defendant submitted numerous exhibits to
the circuit court in support, including a transcript of the
sentencing hearing, various internal documents of the
Department of Corrections concerning defendant, parole
guidelines, and letters of support. The prosecution filed a
response opposing defendant's motion, arguing that
defendant was not remorseful and minimized his involvement in
the bank robbery. At the hearing on defendant's motion,
the circuit court, ruling from the bench, denied the request
for written approval of early parole eligibility. The gist of
the court's ruling was that it did not believe that it
should exercise its discretion to alter the sentence imposed
in the case by the sentencing court. The circuit court judge
lamented that her predecessor was very experienced, had a
criminal law background, had been a mentor, and was probably
more liberal when it came to sentencing. The court further
[I] still have to come back to the fact that I was not the
sentencing judge, okay. I know when I give a sentence, I have
thought about it, given it all the consideration I can give
it, and then I make the best decision based on ...