in Re Parole of David Albers

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re Parole of DAVID ALBERS.
MACOMB COUNTY PROSECUTOR, UNPUBLISHED
January 29, 2019
Appellee,
v No. 343208
Macomb Circuit Court
DAVID ALBERS, LC No. 2017-000052-AP
Appellant,
and
PAROLE BOARD,
Other Party.
In re Parole of DAVID ALBERS.
MACOMB COUNTY PROSECUTOR,
Appellee,
v No. 343316
Macomb Circuit Court
DAVID ALBERS, LC No. 2017-000052-AP
Other Party,
and
PAROLE BOARD,
Appellant.
Before: MURRAY, C.J., and SERVITTO and SHAPIRO, JJ.
PER CURIAM.
On March 18, 2017, the Michigan Parole Board (the Board) issued a notice of decision
granting parole to appellant David Albers. Albers was to be released on or about August 2,
2017. The county prosecutor filed an emergency delayed application for leave and an
emergency motion to stay release, each of which were granted by the circuit court. On January
4, 2017, the circuit court reversed the Board’s decision. Following that decision, the Board and
Albers both sought and were granted leave to appeal to this Court. For the reasons set forth
below, we reinstate the Board’s decision and remand to the Board for further action. 1
This case is controlled by In re Elias, 294 Mich. App. 507; 811 NW2d 541 (2011), in
which we held that the reviewing court is prohibited from substituting its judgment for that of the
Board. Elias, 294 Mich. App. at 538-539. Pursuant to MCR 7.118(H)(3), a parole decision may
not be reversed unless the prosecutor or other challenging party “show either that the Board’s
decision was a clear abuse of discretion or was in violation of the Michigan Constitution, a
statute, an administrative rule, or a written agency regulation.” Elias, 294 Mich. App. at 538
(quotation marks and citation omitted).
“Although matters of parole lie solely within the broad discretion of the [Board], that
discretion is clearly restricted by legislative limitations.” In re Parole of Haeger, 294 Mich. App.
549, 556; 813 NW2d 313 (2011) (quotation marks and citations omitted). The Legislature has
mandated the use of parole guidelines developed by the Department of Corrections consistent
with MCL 791.233e. “The parole guidelines are an attempt to quantify the applicable factors
that should be considered in a parole decision. . . . By quantifying the factors, the Legislature
plainly intended to inject more objectivity into the process . . . .” In re Parole of Johnson, 219
Mich. App. 595; 556 NW2d 899 (1996). “Statutory guidelines form the backbone of the parole-
decision process.” Elias, 294 Mich. App. at 512.
After the guideline factors are scored, they are added together and the total score “is then
used to fix a probability of parole determination for each individual . . . .” Johnson, 219 Mich
App at 599. Specifically, as described in Elias:
Prisoners are categorized under the guidelines as having a high, average, or low
probability of parole. A prisoner with a score of +3 or greater merits placement in
the high-probability category, a score of -13 or less warrants assignment to the
low-probability category, and a score between those figures falls within the
1
We review de novo the circuit court’s decision to overrule the Board as the court’s ruling
pertains to the proper interpretation and application of the statutes, court rules, and
administrative guidelines. See People v Kennedy, 502 Mich. 206, 213; 917 NW2d 355 (2018).
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average-probability category. [Elias, 294 Mich. at 518 (quotation marks and
citations omitted).]
Albers’s parole guideline score was +6, placing him in the high-probability of parole category.
As set forth in MCL 791.233e(6), the parole board has limited discretion to vary from the
guideline recommendation:
The parole board may depart from the guideline by denying parole to a prisoner
who has a high probability of parole as determined under the parole guidelines or
by granting parole to a prisoner who has a low probability of parole as determined
under the parole guidelines. A departure under this subsection shall be for
substantial and compelling reasons stated in writing. The parole board shall not
use a prisoner’s gender, race, ethnicity, alienage, national origin, or religion to
depart from the recommended parole guidelines.
In sum, when a prisoner’s parole guideline score classifies him as having a “high probability of
parole,” the Board is required to grant parole “absent substantial and compelling reasons to
depart from that decision.” Elias, 294 Mich. App. at 539. A “substantial and compelling reason”
is “ ‘an objective and verifiable reason that keenly or irresistibly grabs our attention; is of
considerable worth in deciding the length of a sentence; and exists only in exceptional cases.’ ”
Id. at 542, quoting People v Babcock, 469 Mich. 247, 258; 666 NW2d 231 (2003). Thus, when
the guidelines designate a prisoner as having a “high probability of parole” and the Board grants
parole, a reviewing court should not disturb the Board’s decision unless the court finds that the
Board abused its discretion by not finding substantial and compelling reasons to depart from the
guidelines.
In reversing the Board’s decision, the circuit court made several legal errors. First, the
court erred in its conclusion that the Board violated the law by not considering all the factors set
forth in MCL 791.233e(2). As is plain from the text of the statute, MCL 791.233e(2) does not
create mandatory considerations in individual parole determinations. Rather, the statute provides
that the factors are to be used “in developing the parole guidelines.” The circuit court also cited
Mich Admin Code R 791.7715(1) and concluded that the factors enumerated there “must be
considered.” In fact, the regulation states that the parole board “may consider” those factors. It
is clear that the circuit court misread both statute and regulation.
The circuit court committed a second error of law by requiring the Board to provide
sufficient and verifiable facts, i.e., substantial and compelling reasons, to justify its decision to
grant parole, even though the prisoner had a parole guideline score of +6, well above the +3
required to be categorized as having a high probability of parole. Providing substantial and
compelling reasons are only necessary when the Board departs from the parole guidelines, i.e.,
denies parole to a prisoner with a high probability of parole or grants parole to a prisoner with a
low probability of parole. MCL 791.233e(6); Elias, 294 Mich. App. at 522. Because the Board
did not depart from the parole guidelines’ recommendation that Albers be granted parole, there
was no need to provide substantial and compelling reasons.
Having applied the wrong standard and having erroneously defined mandatory
considerations, the court further erred by concluding that the Board did not consider all the facts
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and circumstances relevant to these considerations. First, the court incorrectly concluded that
“there is no indication from the record that the Board considered the facts and circumstances of
the underlying offense.” In fact, the case summary report prepared by the Board contains a
detailed description of Albers’s crime. 2 Second, the court opined that the Board did not consider
that Albers received two major misconducts during his incarceration. However, the two major
misconducts were scored as part of the guidelines process and thus taken into account by the
Board, even if not specifically cited. In addition, the Board’s case summary report references the
two major misconducts and, as the prosecution concedes in its brief, “the two major misconducts
were in the record.” And the circuit court cannot simply assume that the Board ignored evidence
contained in the record. See Elias, 294 Mich. App. at 547. Finally, the circuit court stated that it
was unclear whether the Board had considered that Albers had subsequently been convicted in
federal court of attempting to solicit murder—the same crime and potential victim as in this case.
However, the record demonstrates that the Board was aware of and considered this new criminal
activity as well as the fact that upon release from Michigan custody, Albers would immediately
begin serving a ten year sentence in federal prison for that offense. 3
In sum, as we did in Elias, we conclude that the court “overstepped the bounds of judicial
review.” Elias, 294 Mich. App. at 510. The circuit court erred in concluding that the Board
abused its discretion or violated the Michigan Constitution, a statute, or any administrative rule
or regulation. MCR 7.118(H)(3). The Board considered the relevant facts and circumstances
and complied with required procedures. Finding no substantial or compelling basis to diverge
from the parole guidelines, the Board properly concluded that there was “reasonable assurance,
after consideration of all of the facts and circumstances, including the prisoner’s mental and
social attitude, that [Albers would] not become a menace to society or to the public safety.”
While the circuit court disagreed with that evaluation, it may not conduct a de novo review or
substitute its judgment for that of the Board.
2
The circuit court’s opinion largely focused on the facts of Albers’s crime. This is a proper
consideration. We note, however, that these same facts are considered at the time of sentencing
and the discretion to determine the minimum sentence demanded by those facts is exercised by
the sentencing judge at that time. They should therefore not serve as the sole or primary reason
for denying release upon completion of that minimum term.
3
The court further erred when, concluding that the Board failed to consider certain information,
it reversed the decision to grant parole rather than remanding the matter to the Board for a further
explanation of its decision pursuant to MCR 7.118(H)(4), which allows the circuit court to
remand the matter to allow the Board to explain its decision if “after surveying the explanation
given and relevant record,” the circuit court is unable to discern “the basis of the parole board’s
decision.” Glover v Parole Bd, 460 Mich. 511, 525 n 22; 596 NW2d 598 (1999).
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Reversed. We reinstate the decision of the parole board and remand to that body for
further action consistent with this opinion. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Deborah A. Servitto
/s/ Douglas B. Shapiro
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