Persichino v. Parole Board

582 N.W.2d 523, 229 Mich. App. 450

• Court: Michigan Court of Appeals
• Decided: April 28, 1998
• Docket: Docket No. 200374
• Status: Published

Opinion

Per Curiam.

This action is before us on plaintiffs original complaint for habeas corpus. Plaintiff argues that his detention resulting from a parole violation is illegal because the Parole Board failed to comply with MCL 791.240a(1); MSA 28.2310(1)(1). We disagree and, therefore, deny plaintiff’s request for a writ of habeas coipus.

In 1992, plaintiff was convicted as a third-offense habitual offender of breaking and entering, fraudulent use of a transaction device over $500, unlawfully driving away an automobile (UDAA), and receiving and concealing stolen property. He was sentenced to prison terms of one to thirty years for the breaking and entering conviction, one to ten years for the fraud conviction, one to ten years for the UDAA conviction, and one to five years for the receiving and concealing conviction. Plaintiff was paroled in 1995 with special conditions, one of which was to refrain from alcohol consumption. On March 31, 1996, plaintiff violated the terms of his parole by consuming alcohol and driving a motor vehicle while under the influence of intoxicating liquor.¹ Plaintiff was served with written notice of parole violation charges on April 2, 1996. On April 18, 1996, defendant Parole Board issued a parole violation warrant for plaintiffs arrest. Plaintiff was taken into custody and transported to the Macomb County Jail on April 22, 1996. On May 21, 1996, defendant held a parole violation hearing and recommended that plaintiff be returned to correctional facilities for a period of eighteen months.

MCL 791.240a(1); MSA 28.2310(1)(1) provides in pertinent part:

Within 45 days after a paroled prisoner has been returned or is available for return to a state correctional facility under accusation of a parole violation . . . the prisoner is entitled to a fact-finding hearing on the charges before . . . the parole board.

Plaintiff contends that he was “available for return” and “under accusation” when he received notice of parole violation charges on April 2, 1996, and, therefore, defendant violated this statute by failing to provide him a hearing within forty-five days of that date. We disagree.

Mere notice of parole violation charges does not suffice for the purposes of placing a parolee “under accusation.” Hinton v Parole Bd, 148 Mich App 235, 242; 383 NW2d 626 (1986). The Parole Board must first consider whether to recommend revocation of parole and issue a parole violation warrant to place a parolee “under accusation” of parole violations. Feazel v Dep’t of Corrections, 31 Mich App 425, 428; 188 NW2d 59 (1971). Because the parole revocation hearing occurred within forty-five days of the parole violation warrant and arrest, plaintiff has failed to establish a basis for the writ of habeas corpus.

Complaint for writ of habeas corpus dismissed.

1 The Department of Corrections did not issue a parole detainer or “hold” for defendant pursuant to MCL 791.239; MSA 28.2309. Nonetheless, we note that a parolee is entitled to a preliminary hearing and notice of the charges, as well as other procedural safeguards. MCL 791.239a; MSA 28.2309(1).