PEOPLE OF MI V GREGORY LEWIS HOLDER
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED JUNE 10, 2009
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 137486
GREGORY LEWIS HOLDER,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
YOUNG, J.
Defendant received an early parole discharge from the Michigan
Department of Corrections (DOC). He committed several crimes seven months
after receiving his parole discharge. After being sentenced for these crimes, the
defendant received notice from the DOC that his parole discharge was
“cancelled.” The DOC subsequently sent correspondence to the sentencing judge
and the parties, informing the judge of the parole discharge cancellation and
asking the judge to amend defendant’s judgment of sentence to reflect that the
sentence imposed was to be served consecutively to the sentence for which
defendant was on parole. The judge complied with the request, amending the
judgment of sentence without notice to defendant.
We hold that defendant was not on parole at the time he was sentenced, and
the DOC’s effort to retroactively cancel defendant’s parole discharge had no legal
effect on defendant’s parole status. Because the original judgment of sentence
was valid when imposed, the sentencing judge had no authority to modify it
pursuant to MCR 6.429(A). Accordingly, we vacate the amended sentence and
remand this case to the circuit court to reinstate the original judgment of sentence.
Additionally, we reiterate that sentencing is the responsibility of our courts,
and notices sent to courts from the DOC concerning sentencing errors are merely
advisory and informational in nature. Any judge receiving such a notice must
identify the nature of the claimed error and determine whether the error actually
implicates a defendant’s sentence.
Ultimately, however, any corrections or
modifications to a defendant’s sentence must comply with the relevant statutes and
court rules.
FACTS AND PROCEDURAL HISTORY
Defendant was sentenced to prison for narcotics crimes in 1999 and was
paroled in April 2004. Beginning in June 2005, the police placed defendant under
surveillance after a confidential informant’s tip led to two controlled cocaine
purchases. For reasons not stated in the record, defendant was given an early
parole discharge by the DOC on July 22, 2005.
On March 1, 2006, the police investigation ended, resulting in the recovery
of large amounts of narcotics, drug paraphernalia, and guns. Defendant reached a
plea agreement with the prosecutor. At the plea hearing in January 2007, the
2
prosecutor stated that there were no agreements for specific sentences but that
consecutive sentencing would not apply. Further, the prosecutor elected to forgo
any sentencing enhancement under the statutes pertaining to habitual offenders1
and repeat drug offenders.2 The presentence investigation report, prepared by the
DOC on February 26, 2007, indicated that defendant was not on parole.
One month later, defendant was sentenced to concurrent terms of
imprisonment as follows: 99 to 240 months for delivery of between 50 and 449
grams of cocaine,3 225 to 475 months for possession with intent to deliver over
1,000 grams of cocaine,4 and 12 to 60 months for being a felon in possession of a
firearm.5 Defendant was also sentenced to a mandatory consecutive two-year term
of imprisonment for possession of a firearm during the commission of a felony.6
In May 2007, the DOC sent defendant two notices informing him that the
parole discharge granted in July 2005 was “cancelled.” In January 2008, the DOC
sent correspondence to the parties and to the sentencing judge, stating that
defendant’s discharge from parole had been “cancelled” and that defendant was on
1
MCL 769.12.
2
MCL 333.7413.
3
MCL 333.7401(2)(a)(iii).
4
MCL 333.7401(2)(a)(i).
5
MCL 750.224f.
6
MCL 750.227b.
3
parole when the offenses were committed. The department requested that the
judge “issue an amended judgment” to reflect that defendant’s sentences were to
run “consecutive to parole.”7 A few days later, without providing notice or a
hearing to either defendant or the prosecutor, the judge entered an amended
judgment of sentence.
After the Court of Appeals denied leave to appeal, this Court heard oral
argument on defendant’s application for leave to appeal.8 We also invited the
Attorney General to participate and address the DOC’s authority to seek an
amendment of defendant’s sentence.
STANDARD OF REVIEW
In reviewing questions of statutory construction, our purpose is to discern
and give effect to the Legislature’s intent. We begin by examining the plain
language of the statute; where that language is unambiguous, we presume that the
Legislature intended the meaning clearly expressed and enforce that statute as
written. 9 We must give the words of a statute their plain and ordinary meaning,
7
Pursuant to MCL 768.7a(2), if a person is convicted and sentenced for a
felony committed while on parole, the term of imprisonment for the later felony
does not begin to run until the remaining portion of the previous offense has
expired.
8
483 Mich 890 (2009).
9
People v Morey, 461 Mich 325, 329-330; 603 NW2d 250 (1999).
4
and only where the statutory language is ambiguous may we look outside the
statute to ascertain legislative intent.10
ANALYSIS
I
Generally speaking, “a prisoner’s release on parole is discretionary with the
parole board.” 11 A paroled prisoner is not considered released; rather, the prisoner
is simply permitted to leave the confinement of prison.12
Indeed, a parolee
explicitly “remain[s] in the legal custody and under the control of the department”
while on parole.13 Once parole has been granted, it may be rescinded for cause if a
parole violation has been proven by a preponderance of the evidence.14 Moreover,
the DOC possesses the statutory authority to rescind a parole order before a
prisoner leaves prison15 and to amend an existing order of parole.16
The statutory provision addressing parole discharge can be found at MCL
791.242(1), which provides:
10
Id. at 330.
11
MCL 791.234(11).
12
MCL 791.238(6).
13
MCL 791.238(1).
14
MCL 791.240a. See also MCL 791.241.
15
MCL 791.236(2).
16
MCL 791.236(3).
5
If a paroled prisoner has faithfully performed all of the
conditions and obligations of parole for the period of time fixed in
the order of parole, and has obeyed all of the rules and regulations
adopted by the parole board, the prisoner has served the full sentence
required. The parole board shall enter a final order of discharge and
issue the paroled prisoner a certificate of discharge.
The plain language of the statute states that the parole board is required to
enter a final order of discharge if a prisoner has “faithfully performed” all the
“conditions and obligations of parole.” In stark contrast to the statutory provisions
providing explicit authorization to revoke parole, nothing in this statute permits
the DOC to “cancel” or revoke a parole discharge order once the final order of
discharge has been entered and the certificate of discharge issued to the prisoner.
In the absence of statutory authorization permitting the DOC to rescind a
parole discharge order, this Court’s opinion in In re Eddinger17 remains viable and
instructive. Discussing the nature of parole discharge, the Eddinger Court stated:
The purpose of a parole is to keep the prisoner in legal
custody while permitting him to live beyond the prison inclosure so
that he may have an opportunity to show that he can refrain from
committing crime. It is a conditional release, the condition being
that if he makes good he will receive an absolute discharge from the
balance of his sentence; but if he does not make good he will be
returned to serve his unexpired time. The absolute discharge is
something more than a release from parole. It is a remission of the
remaining portion of his sentence. Like a pardon, it is a gift from
the executive, and like any other gift it does not become effective
until it is delivered and accepted. After delivery it cannot be
recalled.[18]
17
236 Mich 668, 211 NW 54 (1926).
18
Id. at 670 (emphasis added).
6
The Attorney General concedes that no express statutory authority exists
permitting the revocation of a parole discharge order. However, the Attorney
General argues that such authority is “necessarily implied” in order to give
“effect” to the DOC’s authority to grant parole discharge orders pursuant to MCL
791.242(1). Moreover, the Attorney General notes that, pursuant to People v
Young,19 a writ of mandamus may be filed against the DOC, challenging the
department’s decision to discharge a less-than-model prisoner from parole. The
Attorney General maintains that if the DOC can be subject to a mandamus action,
then it must have the “corollary authority” to rescind an order of parole discharge.
Because the propriety of the decision in People v Young is not properly
before us in the present case, we do not address it.20 Additionally, we decline the
Attorney General’s invitation to hold that the DOC has the “implied authority” to
rescind a final order of discharge where the Legislature has not conferred such
authority.21 Given the Legislature’s express grant of authority to the DOC to grant
19
220 Mich App 420; 559 NW2d 670 (1996).
20
We note, however, that the clear language of MCL 791.242(1) merely
indicates that the parole board is compelled to release a prisoner from parole
where the prisoner has completely complied with all of the rules and conditions
imposed by the parole board for the entire duration of his parole period. The
statutory language does not otherwise place any limitations on the DOC’s
authority to discharge a prisoner from parole.
21
An agency such as the DOC has no inherent authority, and the limitations
of its power and authority “must be measured by the statutory enactments from
7
parole, revoke parole, rescind an order of parole before a prisoner is released, and
amend an existing order of parole, there is no basis to conclude that the
Legislature impliedly intended to grant the DOC the authority to rescind a final
order of parole discharge. Indeed, because the DOC’s ability to exert custody and
control over a paroled prisoner is statutorily limited to those “on parole,”22 there is
no statutory basis to conclude that the DOC retains any continuing authority over a
parolee once parole has been terminated. While we agree with the Attorney
General that permitting the DOC to rescind an order of parole discharge “makes
practical sense” and is “good policy,” it is a matter that should be addressed by our
Legislature, not this Court.
II
According to the DOC, the department routinely sends correspondence
advising courts and parties of sentencing errors. This is done in order to fulfill the
department’s statutory duty to classify prisoners and accurately compute their
sentences,23 as well as to satisfy an agreement made after an investigation by the
Auditor General.
The letters, identifying sentencing errors described by the
department as generally “clerical in nature,” are intended to provide information to
the sentencing court and the parties. Once the information is provided, the DOC
which it is created.” Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 202 n
17; 631 NW2d 733 (2001).
22
MCL 791.238(1).
23
MCL 791.264.
8
contends that impetus is on the sentencing court and the parties to rectify the
identified errors pursuant to the law and our court rules. In this case, however, the
letter sent by the DOC did not merely provide information. Rather, the letter
directly asked the court to “issue an amended” judgment of sentence as a result of
its cancellation of defendant’s parole discharge.
While the DOC certainly has an obligation to ensure that any sentence
executed is free from errors, the department is not a party to the underlying
criminal proceedings under either MCR 6.42924 or MCR 6.435.25 As a result, we
wish to reiterate that any notices sent from the DOC to the courts and parties
regarding sentencing errors are merely informational, and any requests contained
therein merely advisory. Any judge receiving such a notice must ascertain the
nature of the claimed error, determine whether the error implicates a defendant’s
sentence, and consider the curative action recommended by the DOC.
It is
imperative, however, that any corrections or modifications to a judgment of
sentence must comply with the relevant statutes and court rules.26 Significantly, if
24
MCR 6.429(A) permits “either party” to file a “motion to correct an
invalid sentence.” (Emphasis added.)
25
MCR 6.435(A) permits the court to correct clerical errors “on its own
initiative or on motion of a party . . . .” (Emphasis added.)
26
See, e.g., MCL 769.27, which provides:
If the court changes any sentence imposed under this act in
any respect, the clerk of the court shall give written notice of the
change to the prosecuting attorney, the defendant, and the
defendant’s counsel. The prosecuting attorney, the defendant’s
9
the claimed error is substantive, the court may modify the sentence only “[a]fter
giving the parties an opportunity to be heard” and if “it has not yet entered
judgment in the case . . . .” MCR 6.435(B). Similarly, if the original judgment of
sentence was valid when entered, MCR 6.429(A) controls and mandates that the
court “may not modify a valid sentence after it has been imposed except as
provided by law.”
Here, because the original judgment of sentence was valid when imposed,
the court had no authority to modify it in response to the DOC’s letters. MCR
6.429(A). Accordingly, we vacate the amended judgment of sentence and remand
this case to the circuit court to reinstate the original judgment of sentence.
Robert P. Young
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Stephen P. Markman
Diane M. Hathaway
counsel, or the defendant may file an objection to the change. The
court shall promptly hold a hearing on any objection filed.
10
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