Wayne County Prosecutor v. Department of Corrections

617 N.W.2d 921, 242 Mich. App. 148, 2000 Mich. App. LEXIS 183
CourtMichigan Court of Appeals
DecidedAugust 15, 2000
DocketDocket No. 214873
StatusPublished
Cited by2 cases

This text of 617 N.W.2d 921 (Wayne County Prosecutor v. Department of Corrections) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wayne County Prosecutor v. Department of Corrections, 617 N.W.2d 921, 242 Mich. App. 148, 2000 Mich. App. LEXIS 183 (Mich. Ct. App. 2000).

Opinion

Jansen, J.

Plaintiff appeals as of right from an order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(8). We affirm.

This case arises out of plaintiff’s attempt to have § 42 of the penal institutions, pardon, probation, and parole act, MCL 791.242; MSA 28.2312, relating to a final order of discharge from parole, declared unconstitutional as a violation of the separation of powers doctrine. Specifically, by a letter dated November 18, 1997, plaintiff requested defendant’s director to rule that § 42 is unconstitutional because of the exclusive power vested in the Governor to commute sentences and pardon prisoners and that, therefore, § 42 does not empower the Parole Board to grant the past discharges of sentences or to grant the discharges of sentences “hereafter contemplated.”

By way of example, plaintiff offered the pertinent facts regarding the following three prisoners: David D. DuPuis, James B. Canady, and Robert J. Owens, Jr. Mr. DuPuis was sentenced on September 27, 1983 to 2V2 to 15 years in prison for burglary and receiving and concealing stolen property and he was sentenced on December 16, 1985, to seven to twenty years in prison for breaking and entering. Mr. DuPuis was granted a parole on September 24, 1993, and was discharged from parole on September 24, 1995. DuPuis [151]*151committed another felony (home invasion) on October 21, 1996, for which he was sentenced to IV2 to 20 years in prison. Mr. DuPuis’ parole for the conviction of home invasion was to begin on January 1, 1998, and to end on January 1, 2000. Mr. Canady was serving a prison sentence of four to twenty years when, on December 8, 1989, Mr. Canady was convicted of assault on a prison employee and given another sentence of one to four years. Mr. Canady was paroled on April 29, 1992, and was discharged from his parole on April 29, 1994. Mr. Canady committed another felony (malicious destruction of property) on January 6, 1997, and sentenced to one year and one day to fifteen years. Mr. Canady’s parole for the convictions of malicious destruction of property was to begin on January 6, 1998, and to end on January 6, 2000. Mr. Owens, who had accumulated twenty-two convictions, was sentenced to three to ten years in prison following a conviction of being a fourth-offense habitual offender in December 1994. Mr. Owens’ latest parole was to begin on January 4, 1998,. and to end on January 4, 2000. It is plaintiff’s contention that the Parole Board does not have the power, either under the constitution or under the statute, to discharge the unserved maximum sentence once it discharges the prisoner from parole, that is, ends the parolee’s supervision.

Defendant’s director did not respond within thirty days to plaintiff’s request; thus, the request was considered to be denied and the denial vested the circuit court with jurisdiction. See MCL 24.263; MSA 3.560(163). On December 22, 1997, plaintiff filed a two-count complaint for a declaratory judgment in the Wayne Circuit Court. In count I of its complaint, [152]*152plaintiff sought a declaration that § 42 is unconstitutional because it infringes on the Governor’s exclusive power to pardon prisoners or commute sentences under Const 1963, art 5, § 14. In count n of the complaint, plaintiff sought a declaration that § 42, even if constitutional, precludes a prisoner’s unserved sentence from being discharged if the prisoner ever violates a parole order, no matter how many subsequent periods of parole the prisoner may successfully complete.

MCL 791.242; MSA 28.2312 provides:

When any paroled prisoner has faithfully performed all of the conditions and obligations of his parole for the period of time fixed in such order, and has obeyed all of the rules and regulations adopted by the parole board, he shall be deemed to have served his full sentence, and the parole board shall enter a final order of discharge and issue to the paroled prisoner a certificate of discharge.
No parole shall be granted for a period less than 2 years in all cases of murder, actual forcible rape, robbery armed, kidnapping, extortion, or breaking and entering an occupied dwelling in the night time except where the maximum time remaining to be served on the sentence is less than 2 years.

Plaintiff claims that this statutory provision is unconstitutional because the Governor has the exclusive power to grant commutations and pardons pursuant to Const 1963, art 5, § 14, which provides:

The governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law. He shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefor.

[153]*153On January 23, 1998, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). The arguments made in the lower court are the same as those on appeal. With respect to count I, plaintiff argues that the Parole Board cannot grant discharges to parolees until the expiration of their maximum sentence; otherwise the Parole Board would be illegally exercising a power vested exclusively in the Governor, namely, the power to pardon. Plaintiff further claims that, although the Legislature has the authority to provide for indeterminate sentencing under Const 1963, art 4, § 45, this authority extends only to the “release” of prisoners from detention and does not permit the Legislature to enact laws providing for the discharge of unserved time on maximum sentences. Const 1963, art 4, § 45 specifically provides:

The legislature may provide for indeterminate sentences as punishment for crime and for the detention and release of persons mprisoned or detained under such sentences.

The trial court found that § 42 is not an unconstitutional usurpation of the Governor’s exclusive right to pardon or commute, relying on our Supreme Court’s decision in Oakland Co Prosecuting Attorney v Dep’t of Corrections, 411 Mich 183; 305 NW2d 515 (1981). Contrary to plaintiff’s assertion, the trial court did not err in relying on that case, inasmuch as the precise issue in that case was whether the Prison Overcrowding Emergency Powers Act (1980 PA 519) — providing for the release of prisoners imprisoned under indeterminate sentences — impermissibly infringed on the Governor’s commutation power. The statute granted to the Department of Corrections the power to [154]*154reduce minimum sentences to reduce prison overcrowding. The Court held that the statute was within the authorization given to the Legislature under Const 1963, art 4, § 45, and, thus, the statute was constitutional. Oakland Co Prosecuting Attorney, supra, p 195. The Court specifically noted that the Legislature also has a role in establishing the length of a sentence (pursuant to Const 1963, art 4, § 45) and that the statute had not intruded on the Governor’s discretionary power to pardon or commute sentences when it is deemed that the circumstances warrant the exercise of those powers. Oakland Co Prosecuting Attorney, supra, pp 193, 197.

Similarly, in the present case, § 42 does not infringe on the Governor’s power to pardon prisoners or commute sentences. Further, as noted by the Court in Oakland Co Prosecuting Attorney, supra,

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Bluebook (online)
617 N.W.2d 921, 242 Mich. App. 148, 2000 Mich. App. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wayne-county-prosecutor-v-department-of-corrections-michctapp-2000.