People v. Grant

329 Mich.App. 626

944 N.W.2d 172

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Adam Douglas GRANT, Defendant-Appellant.

No. 344625

Court of Appeals of Michigan.

Submitted August 6, 2019, at Grand Rapids.

Decided September 19, 2019, 9:00 a.m.

Douglas R. Lloyd, Prosecuting Attorney, and Brent E. Morton, Senior Assistant Prosecuting Attorney, for the people.

Adam D. Grant in propria persona.

Before: Gadola, P.J., and Markey and Ronayne Krause, JJ.

Markey, J. Defendant appeals as on leave granted the circuit court's order denying his motion for written approval to make him eligible for early parole under MCL 769.12(4). The court had also previously rejected a request from the Parole Board to grant defendant early parole. We reverse and remand for further proceedings.

To give context to our discussion of the factual and procedural history of the case, we begin with a brief overview of the law implicated in this matter. MCL 769.12 addresses fourth-offense habitual offenders such as defendant, and this appeal concerns the construction of Subsection (4) of the statute, which provides:

An offender sentenced under this section or section 10 or 11 of this chapter for an offense other than a major controlled substance offense is not eligible for parole until expiration of the following:

(a) For a prisoner other than a prisoner subject to disciplinary time, the minimum term fixed by the sentencing judge at the time of sentence unless the sentencing judge or a successor gives written approval for parole at an earlier date authorized by law.

(b) For a prisoner subject to disciplinary time, the minimum term fixed by the sentencing judge.

Because defendant committed the crimes before December 15, 1998, he is not a "prisoner subject to disciplinary time." MCL 791.233c ("As used in this act, ‘prisoner subject to disciplinary time’ means that term as defined in ... [MCL] 800.34 [.]"); MCL 800.34(5)(a) (A "prisoner subject to disciplinary time" encompasses prisoners sentenced to indeterminate terms of imprisonment for enumerated "crimes committed on or after December 15, 1998[.]"); Hayes v. Parole Bd. , 312 Mich. App. 774, 779 n. 1, 886 N.W.2d 725 (2015). Accordingly, Subsection (4)(a) of MCL 769.12 governs, as opposed to Subsection (4)(b).¹

We now turn to the facts of the case. In 1993, defendant was convicted by a jury of bank robbery, MCL 750.531 ; conspiracy to commit bank robbery, MCL 750.157a and MCL 750.531 ; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 27 to 50 years for the bank robbery and conspiracy convictions, preceded by a consecutive two-year sentence for the felony-firearm conviction. And those three sentences were to be served consecutively to a sentence that defendant was already serving. Defendant's convictions and sentences were affirmed by this Court on appeal. People v. Grant , unpublished per curiam opinion of the Court of Appeals, issued February 14, 1997 (Docket No. 167327), 1997 WL 33354337. Our Supreme Court then denied defendant's application for leave to appeal. People v. Grant , 456 Mich. 954, 577 N.W.2d 687 (1998).

The "calendar minimum date" for defendant's release from prison is June 30, 2022; however, his "net minimum date" for release—defendant's calendar minimum date less disciplinary credits—was December 31, 2017.² Accordingly, in December 2017, subject to the "written approval" prerequisite, defendant became eligible for parole under MCL 791.233(1)(b) and MCL 791.233b(m) and (x).³ And the Parole Board acquired jurisdiction pursuant to MCL 791.234(3).⁴ In August 2017, the Parole Board sent a letter to the circuit court indicating that as a result of an interview with defendant, it had an interest in paroling him.⁵ The Parole Board, citing MCL 769.12(4)(a), requested written approval from the circuit court to parole defendant before his calendar minimum date.

The circuit court judge, who was the successor of the sentencing judge, denied the Parole Board's request. In a letter to the Parole Board, the circuit court emphasized that it was not the sentencing court and therefore, it was unfamiliar with the facts and did not know the reasoning for its predecessor's decision to impose the particular sentence. The circuit court further explained that the Parole Board's letter contained "no basis for the request to ignore the habitual status for sentencing nor what the victim[’s] request was at the time of sentencing." Additionally, the court complained that it had not been provided the presentence investigation report to review for purposes of contemplating the Parole Board's request. Finally, the circuit court stated that it was "not comfortable" altering the sentence.

In March 2018, defendant filed a motion seeking written approval of the Parole Board's jurisdiction to grant him parole, and he asked the circuit court to declare him eligible for early parole. Defendant submitted numerous exhibits to the circuit court in support of his motion, including a transcript of the sentencing hearing, various internal documents of the Department of Corrections concerning defendant, parole guidelines, and letters of support. The prosecution filed a response opposing defendant's motion, arguing that defendant was not remorseful and minimized his involvement in the bank robbery. At the hearing on defendant's motion, the circuit court denied the request for written approval of early parole eligibility. The gist of the court's ruling was that it did not believe that it should exercise its discretion to alter the sentence imposed by the sentencing court. The circuit court judge expressed that her predecessor was very experienced, had a criminal law background, had been a mentor to her, and was probably "more liberal" when it came to sentencing. The court further indicated:

I still have to come back to the fact that I was not the sentencing judge, okay. I know when I give a sentence, I have thought about it, given it all the consideration I can give it, and then I make the best decision based on the information I have when I sentence an individual.

The circuit court additionally stated that it had considered the fact that there was a victim of the robbery who had expressed concern about defendant being released. And the court appeared to agree with "the other points that were made in the prosecutor's brief." The circuit court declared that defendant would be released consistent with the calendar minimum date, June 30, 2022. An order denying defendant's motion was entered on May 15, 2018.

Defendant filed a claim of appeal, but this Court dismissed the appeal for lack of jurisdiction because the circuit court's order was not a final order appealable by right. People v. Grant , unpublished order of the Court of Appeals, entered June 13, 2018 (Docket No. 344152). Defendant then filed a delayed application for leave to appeal in this Court; however, it was denied "for lack of merit in the grounds presented." People v. Grant , unpublished order of the Court of Appeals, entered October 25, 2018 (Docket No. 344625). Defendant filed an application for leave to appeal in the Michigan Supreme Court, and the Court, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. People v. Grant , 503 Mich. 953, 923 N.W.2d 249 (2019).

We review de novo issues of statutory construction. People v. Pinkney , 501 Mich. 259, 267, 912 N.W.2d 535 (2018). When interpreting a statute, this Court first focuses on the plain language of the statute with the goal of giving effect to the intent of the Legislature. Id. at 268, 912 N.W.2d 535. We must read individual words and phrases in the context of the entire legislative scheme, examining the statute as a whole. Id. When the language of the statute is unambiguous, the statute must be enforced as written, and no further judicial construction is required or permitted. Id. If at all possible, every word in a statute should be given meaning, and no word should be rendered nugatory or treated as surplusage. Id. at 288, 912 N.W.2d 535.

The Legislature did not set forth any limitations or guidelines with respect to the "written approval" language in MCL 769.12(4)(a). The statute lacks reference to standards, factors, or criteria that a court should or must consider in deciding whether to grant approval. The statutory language plainly provides a court with discretionary authority to approve or not approve a request to designate a habitual offender eligible for early parole. Therefore, we hold that the appropriate standard of review is abuse of discretion. "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v. Duncan , 494 Mich. 713, 722-723, 835 N.W.2d 399 (2013). "A trial court necessarily abuses its discretion when it makes an error of law." People v. Everett , 318 Mich. App. 511, 516, 899 N.W.2d 94 (2017). A decision that is arbitrary and capricious would fall outside the range of reasonable and principled outcomes. See In re ASF , 311 Mich. App. 420, 429, 876 N.W.2d 253 (2015) ("arbitrary" means without consideration of or reference to principles and reason, and "capricious" means "freakish" and "whimsical").

This standard of review not only defines the scope of this Court's review of a circuit court's decision under MCL 769.12(4)(a), it effectively commands and guides a circuit court to render a decision and proffer an explanation for the decision such that the ruling falls within the range of reasonable and principled outcomes. See People v. Babcock , 469 Mich. 247, 269, 666 N.W.2d 231 (2003). This approach precludes determinations that are arbitrary and capricious or reflect an error of law—the court's discretion is not unfettered. We are not prepared to dictate, nor does the statute require, contemplation of any specific...