M. J. Kelly, P.J.
We previously affirmed defendant’s convictions on two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e); however, we vacated defendant’s concurrent sentences of prison terms of from forty to eighty years and remanded this case to the trial court for an evidentiary hearing and resentencing, while retaining jurisdiction. See
People v Hurst,
155 Mich App 573; 400 NW2d 685 (1986). As noted in the first opinion, the sentencing guidelines recommended a minimum sentence range of prison terms of from ten to twenty years.
The concern that prompted remand was whether a person given a lengthy indeterminate sentence for a Proposal b violation was significantly worse off for purposes of parole consideration than a person given a life sentence for the same crime. If so, then the forty-year minimum imposed would shock our conscience. We noted that defendant here was convicted of Proposal b offenses which carry maximum sentences of life imprisonment. The "Lifer Law” provides a carrot. It gives the parole board authority and jurisdiction to release the prisoner, subject to certain conditions, after serving ten calendar years.
Proposal B provides that inmates serving indeterminate sentences for any one of the eighty crimes listed in the statute
remain ineligible for parole until the minimum sentence, less disciplinary credit, is served. MCL 791.233b; MSA 28.2303(3). See also
People v Johnson,
421 Mich 494, 498; 364 NW2d 654 (1984).
On remand, commencing July 17, 1987, the trial court conducted the evidentiary hearing mandated by our decision of October 21, 1986, 155 Mich App 573.
At the evidentiary hearing William J. Hudson, an employee of the Michigan Department of Corrections and Chairman of the Michigan Parole Board, testified. He stated that his duties included administration of the parole board, but primarily
he was concerned with matters of parole and indeterminate sentences.
Using the example of defendant, a person convicted of criminal sexual conduct and sentenced to from forty to eighty years imprisonment, Hudson testified that the parole board calculates a potential minimum date and an actual minimum date. Similarly it calculates a potential maximum date and an actual maximum date. Given a forty-year minimum sentence, with the application of the maximum disciplinary credits that are available to be awarded, defendant had a potential minimum sentence of thirty-two years and six months. The potential maximum sentence, based on an eighty-year actual maximum, was calculated to be approximately sixty-four years imprisonment.
Mr. Hudson testified that, although the Prison Overcrowding Emergency Powers Act, MCL 800.71
et seq.;
MSA 28.1437(1)
et seq.,
had not yet played a role in defendant’s sentence, if the Governor were to invoke the act, the potential minimum sentence would be reduced by ninety days, reducing the potential minimum to thirty-two years and three months. Subsequent invocation of the act would also reduce the potential minimum by ninety days on each occasion.
Asked whether an inmate is generally paroled the first time the calculated release date is reached, Hudson testified that, although that was generally the public’s perception, in reality it was not the case. He stated that the primary consideration at that point was the risk the inmate might pose to society. Other considerations included the nature and circumstances of the offense, prior history and overall institutional adjustment.
When asked to compare this example to that of someone given a life sentence for a Proposal b violation, Hudson testified that he did not think a
person given a life sentence under these circumstances was ever "eligible” for parole in the same manner as a person given an indeterminate sentence. Falling within the jurisdiction of the parole board does not translate to "eligibility” unless all conditions are fulfilled. He stated that such an inmate only falls within the jurisdiction of the parole board after serving ten calendar years in prison. He stated that the first hurdle was that the parole board must be in favor of parole. Next, there must be a public hearing. Finally, if the sentencing judge or successor judge files written objections, the inmate serving a life sentence remains ineligible for parole. Hudson emphasized that, so long as the sentencing judge or successor judge objects, the person can never be released on parole.
Chairman Hudson described the public’s misconception about the distinction between a parole board interview and actual parole consideration. Each inmate, whether serving a life sentence or an indeterminate sentence for a Proposal b crime, is interviewed by the parole board at the end of the first four years imprisonment and then every other year thereafter.
Hudson stated that it was error to equate the interview procedure with eligibility for parole and that inmates were interviewed although not eligible for parole consideration.
He emphasized that an inmate with a life
sentence for a Proposal b crime was "not eligible for parole until such time as there has been a public hearing and a sentencing or successor judge has not filed written objections.”
Hudson went on to testify that in 1985 there were a total of nine prisoners serving life sentences for crimes other than first-degree murder or major controlled substance offenses who were released on parole. Hudson estimated that during that same year there were between seven hundred and one thousand inmates serving similar life sentences.
Chairman Hudson was also asked to compare the effect of Proposal b on various indeterminate sentences. His response may be summarized in the tabular form as follows:
TERM min/max BEST MINIMUM OUT BEFORE PROPOSAL B BEST MINIMUM OUT AFTER PROPOSAL B
10-20 6 yrs., 4 mos., 27 days 8 yrs., 1 mo., 14 days
20-30 10 yrs., 8 mos., 25 days 16 yrs., 2 mo., 29 days
40-80 15 yrs., 11 mo., 33 days [sic] 32 yrs., 6 mo., 3 days
150-300 Approx. 51 yrs. 120 yrs.
Chairman Hudson took exception to the statement on page 578 of our original opinion in this matter (155 Mich App 578) concerning computation of disciplinary credits. He correctly pointed out that our footnote 2 quoted the subsection related to good time credits and not disciplinary
credits. We erred. We should have cited MCL 800.33(5); MSA 28.1403(5).
Chairman Hudson opined that there is the potential that someone given a life sentence for a Proposal b violation could be eligible for parole in ten years. When compared with an indeterminate sentence of forty to eighty years, the comparison showed:
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M. J. Kelly, P.J.
We previously affirmed defendant’s convictions on two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e); however, we vacated defendant’s concurrent sentences of prison terms of from forty to eighty years and remanded this case to the trial court for an evidentiary hearing and resentencing, while retaining jurisdiction. See
People v Hurst,
155 Mich App 573; 400 NW2d 685 (1986). As noted in the first opinion, the sentencing guidelines recommended a minimum sentence range of prison terms of from ten to twenty years.
The concern that prompted remand was whether a person given a lengthy indeterminate sentence for a Proposal b violation was significantly worse off for purposes of parole consideration than a person given a life sentence for the same crime. If so, then the forty-year minimum imposed would shock our conscience. We noted that defendant here was convicted of Proposal b offenses which carry maximum sentences of life imprisonment. The "Lifer Law” provides a carrot. It gives the parole board authority and jurisdiction to release the prisoner, subject to certain conditions, after serving ten calendar years.
Proposal B provides that inmates serving indeterminate sentences for any one of the eighty crimes listed in the statute
remain ineligible for parole until the minimum sentence, less disciplinary credit, is served. MCL 791.233b; MSA 28.2303(3). See also
People v Johnson,
421 Mich 494, 498; 364 NW2d 654 (1984).
On remand, commencing July 17, 1987, the trial court conducted the evidentiary hearing mandated by our decision of October 21, 1986, 155 Mich App 573.
At the evidentiary hearing William J. Hudson, an employee of the Michigan Department of Corrections and Chairman of the Michigan Parole Board, testified. He stated that his duties included administration of the parole board, but primarily
he was concerned with matters of parole and indeterminate sentences.
Using the example of defendant, a person convicted of criminal sexual conduct and sentenced to from forty to eighty years imprisonment, Hudson testified that the parole board calculates a potential minimum date and an actual minimum date. Similarly it calculates a potential maximum date and an actual maximum date. Given a forty-year minimum sentence, with the application of the maximum disciplinary credits that are available to be awarded, defendant had a potential minimum sentence of thirty-two years and six months. The potential maximum sentence, based on an eighty-year actual maximum, was calculated to be approximately sixty-four years imprisonment.
Mr. Hudson testified that, although the Prison Overcrowding Emergency Powers Act, MCL 800.71
et seq.;
MSA 28.1437(1)
et seq.,
had not yet played a role in defendant’s sentence, if the Governor were to invoke the act, the potential minimum sentence would be reduced by ninety days, reducing the potential minimum to thirty-two years and three months. Subsequent invocation of the act would also reduce the potential minimum by ninety days on each occasion.
Asked whether an inmate is generally paroled the first time the calculated release date is reached, Hudson testified that, although that was generally the public’s perception, in reality it was not the case. He stated that the primary consideration at that point was the risk the inmate might pose to society. Other considerations included the nature and circumstances of the offense, prior history and overall institutional adjustment.
When asked to compare this example to that of someone given a life sentence for a Proposal b violation, Hudson testified that he did not think a
person given a life sentence under these circumstances was ever "eligible” for parole in the same manner as a person given an indeterminate sentence. Falling within the jurisdiction of the parole board does not translate to "eligibility” unless all conditions are fulfilled. He stated that such an inmate only falls within the jurisdiction of the parole board after serving ten calendar years in prison. He stated that the first hurdle was that the parole board must be in favor of parole. Next, there must be a public hearing. Finally, if the sentencing judge or successor judge files written objections, the inmate serving a life sentence remains ineligible for parole. Hudson emphasized that, so long as the sentencing judge or successor judge objects, the person can never be released on parole.
Chairman Hudson described the public’s misconception about the distinction between a parole board interview and actual parole consideration. Each inmate, whether serving a life sentence or an indeterminate sentence for a Proposal b crime, is interviewed by the parole board at the end of the first four years imprisonment and then every other year thereafter.
Hudson stated that it was error to equate the interview procedure with eligibility for parole and that inmates were interviewed although not eligible for parole consideration.
He emphasized that an inmate with a life
sentence for a Proposal b crime was "not eligible for parole until such time as there has been a public hearing and a sentencing or successor judge has not filed written objections.”
Hudson went on to testify that in 1985 there were a total of nine prisoners serving life sentences for crimes other than first-degree murder or major controlled substance offenses who were released on parole. Hudson estimated that during that same year there were between seven hundred and one thousand inmates serving similar life sentences.
Chairman Hudson was also asked to compare the effect of Proposal b on various indeterminate sentences. His response may be summarized in the tabular form as follows:
TERM min/max BEST MINIMUM OUT BEFORE PROPOSAL B BEST MINIMUM OUT AFTER PROPOSAL B
10-20 6 yrs., 4 mos., 27 days 8 yrs., 1 mo., 14 days
20-30 10 yrs., 8 mos., 25 days 16 yrs., 2 mo., 29 days
40-80 15 yrs., 11 mo., 33 days [sic] 32 yrs., 6 mo., 3 days
150-300 Approx. 51 yrs. 120 yrs.
Chairman Hudson took exception to the statement on page 578 of our original opinion in this matter (155 Mich App 578) concerning computation of disciplinary credits. He correctly pointed out that our footnote 2 quoted the subsection related to good time credits and not disciplinary
credits. We erred. We should have cited MCL 800.33(5); MSA 28.1403(5).
Chairman Hudson opined that there is the potential that someone given a life sentence for a Proposal b violation could be eligible for parole in ten years. When compared with an indeterminate sentence of forty to eighty years, the comparison showed:
I think the big — the difference and the thing that you have to remember is that even with the 40 to 80, while the time is substantial, that that person must serve, there does come a time even on the 80 when that person would discharge, that means would walk out the door with no control of the department or anybody else for that matter, whereas the life sentence, as long as the sentencing Court or his successor file written objections, that person could never be released.
We are not willing to chalk up an unqualified plus. For any meaningful analysis the sentencer would be expected to factor in the prisoner’s age. Hudson had already testified that an eighty-year maximum could be reduced to sixty-four years if, and only if, all favorable sentence reduction possibilities came about.
Moreover, as he also stated, prisoners given indeterminate sentences for Proposal b violations, such as defendant, are not considered for parole after serving the first ten years of their sentence. They remain ineligible for parole consideration until their potential minimum sentence is served.
Hudson seemed of the opinion that, depending on the sentencing judge, the person with a long indeterminate sentence for a Proposal b violation is potentially much better off in terms of eligibility for parole than is the person serving life for a Proposal b violation. But large double digit sen-
fences eclipse the light at the end of the tunnel. Hurst was born September 24, 1957, making him twenty-seven years old at the time of his original sentence. With a forty-year Proposal b minimum, less 166 days jail credit, his earliest out date would be May 2, 2017. Hudson stated that many more inmates probably serve a life sentence "than are ever released under a life sentence.” However, since there is as yet .no Proposal b lifer who has been released, since none have served ten years, Hudson said there are no figures available on the average Proposal b lifer term of imprisonment.
With all the uncertainties inherent in the game, and knowing that only He who tossed the ball onto the field knows the outcome,
we think life is the better alternative.
Subsequently, the trial court resentenced defendant on August 7, 1987. The sentencing judge stated:
So, therefore, sir, for the purpose of punishment and to protect society from you and since you already have a prior Armed Robbery conviction and since you have a Criminal Sexual Conduct, First Degree, two counts, let’s not lose sight of that fact, conviction.
It is the sentence of this Court, you be committed to the Department of Correction and placed in the custody of the State Prison, Southern Michi
gan in the hopes of rehabilitation, to protect society from you and utilization of the whole factors, life imprisonment.
In light of the concerns enunciated here and in our previous opinion we view these as sentences which do not shock our conscience.
Affirmed