WAYNE COUNTY PROSECUTOR v. DEPARTMENT OF CORRECTIONS, 242 Mich. App. 148

Jansen, J. Plaintiff appeals as of right from an order granting

summary disposition in favor of defendant pursuant to MCR 2.116(C)(8). We affirm. This case arises out of plaintiff’s attempt to have § 42 of the penal institutions, pardon, probation, and parole act, MCL 791.242; MSA 28.2312, relating to a final order of discharge from parole, declared unconstitutional as a violation of the separation of powers doctrine.

Specifically, by a letter dated November 18, 1997, plaintiff requested defendant’s director to rule that § 42 is unconstitutional because of the exclusive power vested in the Governor to commute sentences and pardon prisoners and that, therefore, § 42 does not empower the Parole Board to grant the past discharges of sentences or to grant the discharges of sentences “hereafter contemplated.” By way of example, plaintiff offered the pertinent facts regarding the following three prisoners: David D. DuPuis, James B. Canady, and Robert J. Owens, Jr. Mr.

DuPuis was sentenced on September 27, 1983 to 2V2 to 15 years in prison for burglary and receiving and concealing stolen property and he was sentenced on December 16, 1985, to seven to twenty years in prison for breaking and entering. Mr. DuPuis was granted a parole on September 24, 1993, and was discharged from parole on September 24, 1995. DuPuis committed another felony (home invasion) on October 21, 1996, for which he was sentenced to IV2 to 20 years in prison. Mr. DuPuis’ parole for the conviction of home invasion was to begin on January 1, 1998, and to end on January 1, 2000. Mr.

Canady was serving a prison sentence of four to twenty years when, on December 8, 1989, Mr. Canady was convicted of assault on a prison employee and given another sentence of one to four years. Mr. Canady was paroled on April 29, 1992, and was discharged from his parole on April 29, 1994. Mr. Canady committed another felony (malicious destruction of property) on January 6, 1997, and sentenced to one year and one day to fifteen years. Mr. Canady’s parole for the convictions of malicious destruction of property was to begin on January 6, 1998, and to end on January 6, 2000. Mr.

Owens, who had accumulated twenty-two convictions, was sentenced to three to ten years in prison following a conviction of being a fourth-offense habitual offender in December 1994. Mr. Owens’ latest parole was to begin on January 4, 1998,. and to end on January 4, 2000. It is plaintiff’s contention that the Parole Board does not have the power, either under the constitution or under the statute, to discharge the unserved maximum sentence once it discharges the prisoner from parole, that is, ends the parolee’s supervision.

Defendant’s director did not respond within thirty days to plaintiff’s request; thus, the request was considered to be denied and the denial vested the circuit court with jurisdiction. See MCL 24.263; MSA 3.560(163). On December 22, 1997, plaintiff filed a two-count complaint for a declaratory judgment in the Wayne Circuit Court. In count I of its complaint, plaintiff sought a declaration that § 42 is unconstitutional because it infringes on the Governor’s exclusive power to pardon prisoners or commute sentences under Const 1963, art 5, § 14.

In count n of the complaint, plaintiff sought a declaration that § 42, even if constitutional, precludes a prisoner’s unserved sentence from being discharged if the prisoner ever violates a parole order, no matter how many subsequent periods of parole the prisoner may successfully complete.

MCL 791.242; MSA 28.2312 provides: When any paroled prisoner has faithfully performed all of the conditions and obligations of his parole for the period of time fixed in such order, and has obeyed all of the rules and regulations adopted by the parole board, he shall be deemed to have served his full sentence, and the parole board shall enter a final order of discharge and issue to the paroled prisoner a certificate of discharge.

No parole shall be granted for a period less than 2 years in all cases of murder, actual forcible rape, robbery armed, kidnapping, extortion, or breaking and entering an occupied dwelling in the night time except where the maximum time remaining to be served on the sentence is less than 2 years.

Plaintiff claims that this statutory provision is unconstitutional because the Governor has the exclusive power to grant commutations and pardons pursuant to Const 1963, art 5, § 14, which provides: The governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law. He shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefor. On January 23, 1998, defendant filed a motion for

summary disposition pursuant to MCR 2.116(C)(8) and (10). The arguments made in the lower court are the same as those on appeal. With respect to count I, plaintiff argues that the Parole Board cannot grant discharges to parolees until the expiration of their maximum sentence; otherwise the Parole Board would be illegally exercising a power vested exclusively in the Governor, namely, the power to pardon.

Plaintiff further claims that, although the Legislature has the authority to provide for indeterminate sentencing under Const 1963, art 4, § 45, this authority extends only to the “release” of prisoners from detention and does not permit the Legislature to enact laws providing for the discharge of unserved time on maximum sentences. Const 1963, art 4, § 45 specifically provides: The legislature may provide for indeterminate sentences as punishment for crime and for the detention and release of persons mprisoned or detained under such sentences.

The trial court found that § 42 is not an unconstitutional usurpation of the Governor’s exclusive right to pardon or commute, relying on our Supreme Court’s decision in Oakland Co Prosecuting Attorney v Dep’t of Corrections, 411 Mich 183; 305 NW2d 515 (1981). Contrary to plaintiff’s assertion, the trial court did not err in relying on that case, inasmuch as the precise issue in that case was whether the Prison Overcrowding Emergency Powers Act (1980 PA 519) — providing for the release of prisoners imprisoned under indeterminate sentences — impermissibly infringed on the Governor’s commutation power.

The statute granted to the Department of Corrections the power to reduce minimum sentences to reduce prison overcrowding. The Court held that the statute was within the authorization given to the Legislature under Const 1963, art 4, § 45, and, thus, the statute was constitutional. Oakland Co Prosecuting Attorney, supra, p 195.

The Court specifically noted that the Legislature also has a role in establishing the length of a sentence (pursuant to Const 1963, art 4, § 45) and that the statute had not intruded on the Governor’s discretionary power to pardon or commute sentences when it is deemed that the circumstances warrant the exercise of those powers. Oakland Co Prosecuting Attorney, supra, pp 193, 197. Similarly, in the present case, § 42 does not infringe on the Governor’s power to pardon prisoners or commute sentences.

Further, as noted by the Court in Oakland Co Prosecuting Attorney, supra, pp 193-195, the Legislature and the Governor share commutation power under the state constitution and Const 1963, art 4, § 45 authorizes the Legislature to provide for “the detention and release of persons imprisoned or detained under [indeterminate] sentences.”

Section 42 does not infringe on the Governor’s power to pardon or commute sentences. In addition, Michigan courts have consistently held over the course of time and throughout various changes in the law that the indeterminate sentencing process, as authorized by Const 1963, art 4, § 45, permits the absolute discharge of any unserved time on the maximum sentence if a prisoner successfully completes parole.

See In re Dawsett, 311 Mich 588, 592-593; 19 NW2d 110 (1945); In re Eddinger, 236 Mich 668, 670; 211 NW 54 (1926); People v Young (On Remand), 220 Mich App 420, 428; 559 NW2d 670 (1996); People v Raihala, 199 Mich App 577, 579; 502 NW2d 755 (1993).

Although plaintiff relies for the most part on the case of People v Cummings, 88 Mich 249; 50 NW2d 310 (1891), the Supreme Court held in In re Manaca, 146 Mich 697, 699, 704; 110 NW 75 (1906), and People v Cook, 147 Mich 127; 110 NW 514 (1907), that the 1902 amendment that added the predecessor to Const 1963, art 4, § 45, eliminated the constitutional obstacles to indeterminate sentencing by the Legislature that were identified in Cummings. See, also, Oakland Co Prosecuting Attorney, supra, p 194.

Thus, there is no showing that the Legislature here has exceeded the scope of its power under Const 1963, art 4, § 45. Plaintiff further argues that a release from detention is distinguishable from a discharge of a sentence and that the Legislature’s action is outside its scope of authority under Const 1963, art 4, § 45 to provide for the release of persons imprisoned or detained under indeterminate sentences, as opposed to an absolute discharge from a sentence.

However, we find that the trial court did not err in ruling that “release” and “discharge” are “largely synonymous.” We agree with the trial court, for the reason that plaintiff’s

interpretation of the relevant constitutional provisions would render the Legislature’s authority under Const 1963, art 4, § 45 to impose indeterminate sentences meaningless; under such a construction, sentences would always be determinate (i.e., the maximum term) and only the period of incarceration would be indeterminate. Certainly, had the framers of Const 1963, art 4, § 45 meant only the period of incarceration to be indeterminate, they would not have expressly authorized the Legislature to impose indeterminate sentences.

Accordingly, the trial court did not err in ruling that MCL 791.242; MSA 28.2312 is constitutional and does not infringe on the Governor’s power to pardon prisoners and commute sentences under Const 1963, art 5, § 14. Plaintiff argues, alternatively, that even if the statute is found to be constitutional, the statute does not authorize a discharge of a sentence in the same case where a prisoner had violated the conditions of a parole that had previously been granted.

In other words, plaintiff asserts that once a prisoner violates one parole order, the prisoner can never have the sentence discharged no matter how many subsequent periods of parole are successfully completed. Plaintiff argues that the plain meaning of the statute is that all periods of release on a given sentence constitute one parole.

Therefore, plaintiff contends that if a prisoner commits a new crime while on parole, the “exercise of the sentence-discharge power of [MCL 791.242; MSA 28.2312] is lost, and [the] maximum sentence thereafter can only be discharged by the [G]ovemor.” We agree with the trial court that this

interpretation is contrary to the express language of the statute, which states that a parolee’s remaining sentence may be discharged “when the paroled prisoner has faithfully performed all of the conditions and obligations of his parole for the period of time fixed in such order . . . .”

Section 42 employs the singular form of the word “order,” compelling the conclusion that the Legislature must have intended that a prisoner’s compliance with the terms of each parole order be considered independently. Further, as noted by defendant, the statute contains no language that limits the discharge provision only if the first grant of parole is successfully completed. Accordingly, the trial court did not err in rejecting plaintiff’s proffered intexpretation of MCL 791.242; MSA 28.2312 because the plain meaning of the statute does not support plaintiff’s

interpretation. The statute simply does not state that if a parolee violates the terms of parole, the parolee forfeits any further possibility of a full discharge. Rather, the statute requires only that the parolee faithfully perform all the conditions of parole for the period fixed in the parole order and obey all the rules and regulations adopted by the Parole Board as a condition precedent to the Parole Board’s authority to enter a final order of discharge. Affirmed.