People v. Armisted

295 Mich.App. 32

811 N.W.2d 47

PEOPLE

v.ARMISTED.

Docket No. 302902.

Court of Appeals of Michigan.

Submitted Oct. 12, 2011, at Detroit.Decided Dec. 6, 2011, at 9:15 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Mark E. Reene, Prosecuting Attorney, and Ariana E. Hemerline, Assistant Prosecuting Attorney, for the people.

Joseph L. Stewart, Oak Park, for defendant.

Before: OWENS, P.J., and JANSEN and O'CONNELL, JJ.

PER CURIAM.

Defendant appeals by delayed leave granted following his conditional no-contest plea to the offense of furnishing a cellular phone to a prisoner, MCL 800.283a, for which he was sentenced as a fourth habitual offender, MCL 769.12, to a prison term of 1 to 10 years. Defendant's no-contest plea was conditioned on the outcome of this appeal. We affirm.

I

On October 26, 2009, a corrections officer working at the Tuscola Residential Reentry Program (TRRP) searched an inmate room and found a cellular phone in the trash can. Matthew Huggard, who was defendant's roommate at TRRP, told an officer at the facility that defendant had given him the cellular phone and that he had used it. Defendant later told the Michigan State Police that it was his phone.

Defendant argued before the district court that he had not furnished a cellular phone to a “prisoner in a correctional facility” within the meaning of MCL 800.283a because the inmates at TRRP are “parolees” rather than prisoners. Defendant thus asserted that he should not be bound over to the circuit court. The district court determined that there was sufficient probable cause to believe that defendant had committed the crime of furnishing a cellular phone to a prisoner and bound defendant over to the circuit court for further proceedings.

A motion hearing was held before the circuit judge. The parties stipulated that the inmates at TRRP are classified by the Department of Corrections (the Department) as parolees. Defendant again argued that he had not given a cellular phone to a “prisoner” because the inmates at TRRP are merely parolees. Defendant also argued that TRRP was a community relations program rather than a correctional facility. The circuit court ruled that TRRP inmates are prisoners within the meaning of MCL 800.281a(g) and MCL 800.283a. Defendant then entered his conditional no-contest plea. The parties acknowledged on the record that they had reached a sentencing agreement of 1 to 10 years.

Defendant later submitted an affidavit in which he averred that he was granted parole and released from the Parnell Correctional Facility on September 24, 2009, and that he was subsequently transferred to TRRP. Defendant claimed that he was the only person who had used the cellular phone in question. Defendant also averred that he was effectively coerced into accepting the no-contest plea by his attorney, who had allegedly informed him that he would likely be sentenced to a term of 11 years to life in prison if he did not agree to the plea deal.

II

Defendant first argues that he did not furnish a cellular phone to a “prisoner in a correctional facility” within the meaning of MCL 800.283a because the inmates at TRRP are parolees rather than prisoners and because TRRP is not a correctional facility. Therefore, he argues, the district court erred by binding him over to the circuit court and the circuit court erred by denying his motion to quash the information.

We review for an abuse of discretion the circuit court's ruling on a motion to quash the information and the district court's decision to bind over a defendant to the circuit court. People v. Hill, 269 Mich.App. 505, 513–514, 715 N.W.2d 301 (2006), overruled in part on other grounds by People v. Hill, 486 Mich. 658, 786 N.W.2d 601 (2010). However, if the decision concerns whether the alleged conduct falls within the scope of a penal statute, the issue presents a question of law that we review de novo. Id. at 514, 786 N.W.2d 601.

Our primary goal when interpreting a statute is to ascertain and give effect to the intent of the Legislature. People v. Williams, 475 Mich. 245, 250, 716 N.W.2d 208 (2006). The first step in determining legislative intent is to examine the specific language of the statute. People v. Lively, 470 Mich. 248, 253, 680 N.W.2d 878 (2004). The Legislature is presumed to have intended the meaning that it plainly expressed. Rowland v. Washtenaw Co. Rd. Comm., 477 Mich. 197, 219, 731 N.W.2d 41 (2007). Judicial construction is only appropriate if reasonable minds could differ concerning the statute's meaning. People v. Warren, 462 Mich. 415, 427, 615 N.W.2d 691 (2000).

The Legislature has made it a felony to furnish certain types of contraband to prisoners in correctional facilities. See MCL 800.281 et seq. This includes a prohibition against furnishing cellular phones to prisoners. MCL 800.283a. In the present case, defendant entered a conditional no-contest plea to the offense of furnishing a cellular phone to a prisoner in violation of MCL 800.283a, which provides:

A person shall not sell, give, or furnish, or aid in the selling, giving, or furnishing of, a cellular telephone or other wireless communication device to a prisoner in a correctional facility, or dispose of a cellular telephone or other wireless communication device in or on the grounds of a correctional facility.

There is no question that defendant possessed a cellular phone while he was an inmate at TRRP. Instead, the pertinent questions are whether the inmate to whom defendant allegedly furnished the phone was a prisoner and whether TRRP is a correctional facility.

A

For the reasons that follow, we conclude that the inmates at TRRP are “prisoner[s]” within the meaning of MCL 800.283a.

For purposes of MCL 800.281 et seq. , the Legislature has defined the term “prisoner” as “a person committed to the jurisdiction of the department [of corrections] who has not been released on parole or discharged.” MCL 800.281a(g). It is undisputed that the persons housed at TRRP have all been committed to the Department's jurisdiction and, as parolees, are subject to the Department's rules. See MCL 791.238(1) (stating that prisoners on parole remain in the Department's legal custody); MCL 791.206(1)(c) (granting the Department authority to promulgate rules concerning the supervision and control of parolees). Similarly, it is uncontested that the persons housed at TRRP have not been “discharged” from the Department's jurisdiction. Thus the only dispute concerns whether the persons housed at TRRP have been “released on parole” as that phrase is used in MCL 800.281a(g).

Michigan courts have long recognized that a grant of parole generally constitutes permission to leave confinement with certain restrictions. See In re Dawsett, 311 Mich. 588, 595, 19 N.W.2d 110 (1945) (stating that parole is simply a permit to leave the enclosure of the prison, and not a release); see also People v. Raihala, 199 Mich.App. 577, 579, 502 N.W.2d 755 (1993) (characterizing the grant of parole as a “conditional release” from prison). However, it is noteworthy that in drafting MCL 800.281a(g), the Legislature did not exclude all parolees or persons on parole from the definition of “prisoner.” Instead, it excluded only those persons who have been “released on parole.” This Court must, if possible, construe the phrase “released on parole” by giving meaning to each word in the phrase. Bush v. Shabahang, 484 Mich. 156, 167, 772 N.W.2d 272 (2009). Because the Legislature specifically excluded from the definition persons “released on parole”—as opposed to all parolees or all persons on parole—we conclude that the Legislature intended to limit the exclusion to a specific class of parolees rather than apply it to parolees in general. That is, we construe the term “prisoner” as defined in MCL 800.281a(g) to include all parolees who have not yet been released. For this reason, we reject the notion that any person who is on parole is not a “prisoner” within the meaning of MCL 800.281a(g).

Our understanding of the phrase “released on parole” is consistent with the Legislature's decision to place separate requirements on the grant of parole and the release of a parolee. See MCL 791.233(1); MCL 791.238(6). In particular, MCL 791.238(6) provides that “[a] parole shall be construed as a permit to the prisoner to leave the prison, and not as a release.” (Emphasis added.) Likewise, the Legislature has provided that a parolee may not be released from custody until the parole board has satisfactory evidence that arrangements have been made for the parolee's employment, education, or care, MCL 791.233(1)(e), that parolees may be retained in custody under certain circumstances, MCL 791.233(2), and that the parole board has the authority to rescind a parole order before a parolee is released into the community, MCL 791.236(2). In similar fashion, this Court has recognized the distinction between being granted parole and being released on parole. See Wayne Co. Prosecutor v. Parole Bd., 210 Mich.App. 148, 154, 532 N.W.2d 899 (1995). Specifically, we have observed that even after parole is granted, it is not unreasonable to impose additional requirements before the parolee is actually released. Id.; see also MCL 791.233(1)(e). Quite simply, the grant of parole and a parolee's release after being paroled are two different things under Michigan law, which plainly recognizes that a person who has been granted parole might nevertheless remain in custody.

There is also a compelling policy reason for differentiating between all parolees and parolees who have been released into the community. The purpose underlying MCL 800.281 et seq. is to keep contraband out of state correctional facilities and to ensure order and discipline within those facilities. See People v. Krajenka, 188 Mich.App. 661, 664, 470 N.W.2d 403 (1991). This purpose would be undermined if we were to construe the phrase “released on parole” as including all parolees, and,...