In Re Parole of Johnson

596 N.W.2d 202 (1999) 235 Mich. App. 21

In re Parole of JOHNSON.
Michael J. Johnson, Appellant,
v.
Parole Board, Appellee.

Docket No. 203617.

Court of Appeals of Michigan.

Submitted January 12, 1999, at Grand Rapids. Decided April 6, 1999, at 9:05 a.m. Released for Publication July 14, 1999.

Jeanice Dagher-Margosian, Ann Arbor, for the appellant.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Charles C. Schettler, Jr., Assistant Attorney General, for the appellee.

Before: HOOD, P.J., and NEFF and MARKEY, JJ.

PER CURIAM.

Appellant is an inmate who has been serving a parolable life sentence for second-degree murder, M.C.L. § 750.317; MSA 28.549, since 1980. See People v. Johnson, 421 Mich. 494, 364 N.W.2d 654 (1984). In 1996, after being interviewed by a member of the Parole Board, appellant received a letter indicating that a majority of the board had "no interest in taking action" toward his release and that he would be interviewed in the future as required by law. Upon appellant's appeal by leave, the circuit court found that appellant was ineligible for parole and that the "no action" letter was not an appealable decision denying him parole. Appellant now appeals to this Court by leave granted. We affirm.

Appellant argues that, because he was sentenced to a parolable life term, the trial court erred in finding that he was ineligible for parole. He also argues that the no action letter effectively denied him parole and that the trial court therefore erred in refusing to review the board's decision. We disagree.^[1]

Parole eligibility is governed by statute. See M.C.L. § 791.234; MSA 28.2304. "[T]he interpretation and application of statutes is a question of law that is reviewed de novo." People v. Webb, 458 Mich. 265, 274, 580 N.W.2d 884 (1998).

It is arguably true that, in a general colloquial sense, persons sentenced to a term of years (except some drug offenders) and persons sentenced to parolable life terms are eligible for parole, while persons sentenced to life terms without parole are obviously ineligible. That, however, is not the question. Rather, it is clear that, for a person to be eligible for parole within the meaning of the applicable statute, several legal hurdles must be overcome. Subsections 1 through 6 concern minimum eligibility requirements for coming within the Parole Board's "jurisdiction." See M.C.L. § 791.234(1)-(6); MSA 28.2304(1)-(6). Subsections 1 through 5 apply only to persons serving indeterminate sentences and are therefore inapplicable to this case. See M.C.L. § 791.234(1)-(5); MSA 28.2304(1)-(5).

Subsection 6, on the other hand, provides that a person serving a parolable life sentence "is subject to the jurisdiction of the parole board" after serving either ten or fifteen years, depending on when the crime was committed, "subject to" certain enumerated "conditions." MCL 791.234(6); MSA 28.2304(6). This subsection, however, "simply means that a defendant will be eligible for review by the parole board" after serving ten or fifteen years, not that the defendant will be released. See People v. Legree, 177 Mich. App. 134, 141, 441 N.W.2d 433 (1989); see also People v. Lino (After Remand), 213 Mich.App. 89, 96-97, 539 N.W.2d 545 (1995) (because of the many conditions imposed by the statute, persons sentenced to life in prison are rarely paroled after ten years), overruled on other grounds by People v. Carson, 220 Mich.App. 662, 673-674, 560 N.W.2d 657 (1996).

All prisoners covered by subsection 6 "shall" be interviewed by a member of the Parole Board after serving ten years, and every five years thereafter, without regard to sentencing date. MCL 791.234(6)(a); MSA 28.2304(6)(a). Thus, "inmates are interviewed although not eligible for parole consideration." People v. Hurst (After Remand), 169 Mich.App. 160, 164, 425 N.W.2d 752 (1988). The Parole Board then decides whether to "take action" toward paroling the prisoner.

However, even if the board votes to consider a prisoner for parole after the initial interview, the statute provides that "parole shall not be granted ... until after a public hearing [is] held...." MCL 791.234(6)(b); MSA 28.2304(6)(b).^[2] Although a hearing is clearly required, this Court has held that the Parole Board cannot be compelled to hold one. Middleton v. Parole Bd. (On Remand), 208 Mich.App. 563, 566-568, 528 N.W.2d 791 (1995).

Notice of the hearing must be given to the sentencing judge or the judge's successor. MCL 791.234(6)(b); MSA 28.2304(6)(b). The statute further provides that "parole shall not be granted if the sentencing judge, or the judge's successor in office, files [timely] written objections to the granting of the parole...." MCL 791.234(6)(b); MSA 28.2304(6)(b).

"[A] prisoner's release on parole is discretionary with the parole board." See M.C.L. § 791.234(6)(d), (7); MSA 28.2304(6)(d), (7) (emphasis added); see also In re Parole of Glover, 226 Mich.App. 655, 664-665, 575 N.W.2d 772 (1997), lv gtd 458 Mich. 866, 582 N.W.2d 837 (1998). The board's discretion is circumscribed by regulations issued by the Department of Corrections. See 1996 AACS, R. 791.7701 et seq.

Finally, "[t]he action of the parole board in granting or denying parole is appealable by the prisoner, the prosecutor of the county from which the prisoner was committed, or the victim of the crime for which the prisoner was convicted." MCL 791.234(7); MSA 28.2304(7) (emphasis added). The board's decision is reviewed for abuse of discretion. In re Parole of Roberts, 232 Mich.App. 253, 257-258, 591 N.W.2d 259 (1998). Appeals are only by leave of court. MCL 791.234(7); MSA 28.2304(7).

We first agree with the trial court that, under the statute, a prisoner is not truly "eligible" for parole until each and every one of the statutory "conditions" has been met; otherwise, parole "shall not" be granted. See M.C.L. § 791.234(6); MSA 28.2304(6). We note that other panels of this Court have agreed with this proposition, albeit in dicta. See Hurst, supra at 164, 425 N.W.2d 752 ("[f]alling within the jurisdiction of the parole board does not translate into `eligibility' unless all conditions are fulfilled"); see also Carson, supra at 666, 560 N.W.2d 657 (prisoner serving parolable life faces many "legal hurdles" before parole may be granted, including Parole Board interview, public hearing, and lack of objections). Thus, we agree with the trial court that appellant in this case never became "eligible" for parole within the meaning of the statute.

We are also convinced that only the Parole Board's ultimate decision to grant or deny parole is appealable. We note that the statute unequivocally forbids the granting of parole to any prisoner who fails to overcome any of the statutory hurdles. See M.C.L. § 791.234(6); MSA 28.2304(6); see also Hurst, supra at 164, 425 N.W.2d 752. Until all the statutory conditions are met, the Parole Board lacks the discretion to parole a prisoner. An appeal from any such failure would be futile because the statute clearly predetermines the outcome: "parole shall not be granted" to any prisoner—such as plaintiff—who does not overcome the interview, hearing, and objection hurdles. See M.C.L. § 791.234(6); MSA 28.2304(6).^[3]

We therefore conclude that the trial court correctly refused to review the Parole Board's decision to take no action in appellant's case.

Affirmed.

NOTES

[1] In Shields v. Dep't of Corrections, 128 Mich. App. 380, 382-384, 340 N.W.2d 95 (1983), a panel of this Court held that a no action notice was not appealable under the Administrative Procedures Act, M.C.L. § 24.201 et seq.; MSA 3.560(101) et seq. We do not rely on that case, however, because the panel based its holding on the fact that, when the no action letter was issued, the statute did not allow appeals. Shields, supra at 384, 340 N.W.2d 95.

[2] This hearing must be "held in the manner prescribed for pardons and commutations" in M.C.L. § 791.244(2)(f) and (h); MSA 28.2314(2)(f) and (h), and M.C.L. § 791.245; MSA 28.2315.

[3] Compare Glover, supra at 657-659, 575 N.W.2d 772, where an inmate was allowed— without discussion—to appeal the board's decision to "withdraw[ ] interest" in her parole application after conducting a hearing and apparently receiving no objections.