Gilmore v. Parole Bd., Docket No. 217199

CourtCourt of Appeal of Michigan (US)
Writing for the CourtHOEKSTRA, J.
Citation635 N.W.2d 345,247 Mich. App. 205
PartiesWayne GILMORE, Plaintiff-Appellee, v. PAROLE BOARD, Defendant-Appellant. Martin Vargas, Plaintiff-Appellant, v. PAROLE Board, Defendant-Appellee. Merquiades N. Cespedes, Plaintiff-Appellee, v. Parole Board, Defendant-Appellant.
Docket NumberDocket No. 221566,Docket No. 217199,Docket No. 228376.
Decision Date31 October 2001

635 N.W.2d 345
247 Mich.
App. 205

Wayne GILMORE, Plaintiff-Appellee,
v.
PAROLE BOARD, Defendant-Appellant.
Martin Vargas, Plaintiff-Appellant,
v.
PAROLE Board, Defendant-Appellee.
Merquiades N. Cespedes, Plaintiff-Appellee,
v.
Parole Board, Defendant-Appellant

Docket Nos. 217199, 221566, 228376.

Court of Appeals of Michigan.

Submitted August 7, 2001, at Detroit.

Decided August 21, 2001, at 9:05 a.m.

Released for Publication October 31, 2001.


635 N.W.2d 347
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Charles C. Schettler, Jr., Assistant Attorney General, for the Parole Board

Stuart G. Friedman, Plymouth, for Wayne Gilmore.

R. Steven Whalen, Detroit, for Martin Vargas.

Laura K. Sutton, Manchester, for Merquiades N. Cespedes.

Before SAAD, P.J., and HOEKSTRA and SMOLENSKI, JJ.

635 N.W.2d 346
HOEKSTRA, J

In these consolidated appeals, petitioners are all prisoners serving parolable life sentences for unrelated criminal convictions. Common in these appeals are the questions whether, in light of Glover v. Parole Bd., 460 Mich. 511, 596 N.W.2d 598 (1999), and In re Parole of Johnson, 235 Mich.App. 21, 596 N.W.2d 202 (1999), an inmate serving a parolable life sentence is entitled to a written explanation for the Parole Board's decision of "no interest" in taking further action after the prisoner's statutorily mandated interview pursuant to M.C.L. § 791.234(6)(a) and whether the Parole Board's decision of "no interest" is reviewable by the circuit court. We answer both questions in the negative.

I. Facts and Proceedings Below

A. Gilmore v. Parole Board

In 1978, a jury convicted Wayne Gilmore of second-degree murder for aiding and abetting a murder and the trial court sentenced him to life imprisonment with the possibility of parole. Following his conviction and sentencing, Gilmore testified for the prosecution both at a trial and a retrial against the triggerman and an accomplice, despite the risk of personal danger to which testifying exposed him.

The record reveals a criminal history before Gilmore's second-degree murder conviction, including multiple convictions and multiple arrests without convictions. was on parole for a previous conviction. While in At the time of the current offense, Gilmore was on parole for a previous conviction. While in prison for the current conviction, Gilmore incurred at least ten "major misconducts" and was involved in a fraudulent telephone-use scam; however, during his years of incarceration he has completed his GED and other educational programs, maintained employment in the resident

635 N.W.2d 348
store as an inmate storekeeper, and received positive reports for his involvement in a number of activities including, e.g., sports, educational programs, and occupational programs. A 1997 psychological evaluation report indicates that the risk of his engaging in future assaultive behavior is low

At issue here is the Parole Board's August 8, 1997, decision that states that after Gilmore's most recent interview, "the majority of the Parole Board has no interest in taking action at this time." The decision does not explain why the Parole Board came to this conclusion. On March 18, 1998, Gilmore filed a petition for judicial review seeking review and reversal of the Parole Board's decision on the bases that the Parole Board failed to articulate reasons justifying its decision, which denied Gilmore due process, and that the Parole Board abused its discretion in not permitting the case to proceed to a public hearing. The circuit court granted an appeal, finding that it has appellate jurisdiction over the matter, and remanded the matter to the Parole Board for a written explanation of the reasons for "the denial of a parole." On January 6, 1999, relying on In re Parole of Glover, 226 Mich.App. 655, 575 N.W.2d 772 (1997),1 the circuit court found that Gilmore has a liberty interest in the parole process that requires the Parole Board to state reasons for not scheduling him for a public hearing. Although, initially, this Court denied the Parole Board's application for leave to appeal the circuit court's decision, we later granted rehearing and leave to appeal.

B. Vargas v. Parole Board

In 1972, a jury convicted Martin Vargas of raping a seventeen-year-old female. The trial court sentenced him to life imprisonment with the possibility of parole.

The record reveals that Vargas had no criminal history before the instant offense. While in prison for the current conviction, Vargas incurred several "misconducts" and a "major misconduct." However, Vargas completed his GED, obtained an associate's degree and a bachelor of arts degree, in addition to completing other classes. He maintained employment in various prison positions, received letters of appreciation for certain acts, such as providing artwork for a volunteer appreciation banquet, for designing a book cover for health care, and for translating materials into Spanish. He is an artist and he donated paintings to be sold at a benefit for victims of Hurricane Mitch. Vargas received commendations when he came to the aid of a staff member being assaulted by another inmate and when he came to the assistance of a prisoner attempting suicide. Vargas has a supportive extended family and a wife whom he married while in prison. Vargas completed sex offender therapy and received treatment from prison psychologists. According to one psychologist, Vargas "continues to hold to the position that he is innocent of the kidnapping, rape and robbery of the complainant," but, despite this information, the psychologist opined that Vargas "poses a low risk or [sic] danger to the community."

Despite the Parole Board's March 27, 1992, unanimous vote to proceed with a public hearing, after the 1992 legislative reorganization of the Parole Board, an equally divided newly constituted Parole Board voted "no interest" in proceeding with a public hearing, despite a positive recommendation by the Parole Board member who interviewed Vargas. Thereafter, another Parole Board member met Vargas when Vargas was translating for

635 N.W.2d 349
another inmate during an interview and changed her mind after this meeting. Subsequently, the Parole Board voted unanimously to proceed to a public hearing. However, the plan for a public hearing was halted when, on October 28, 1993, Saginaw Circuit Court Judge Robert Kaczmarek objected to paroling Vargas. Vargas appealed this denial of parole consideration up to the Michigan Supreme Court.

Meanwhile, five years had passed since the 1993 action, and in 1998, Vargas was again interviewed by a Parole Board member and received a favorable recommendation. Despite the favorable recommendation, an April 20, 1998, decision indicated that the Parole Board had "no interest in taking action at this time." But, on June 16, 1998, our Supreme Court, noting that Judge Kaczmarek had been disqualified from the case as of October 17, 1991, and thus was no longer the successor judge, remanded the case to the Saginaw Circuit Court judge properly assigned to Vargas' case and directed him to "review the Parole Board's intent to hold a public hearing on the petitioner's parole, examine the information as to the offense and offender, and decide whether to file a written objection within 30 days of this order." The Supreme Court retained jurisdiction. On remand, Saginaw Circuit Court Judge Leopold P. Borrello found "no reason to object to a public hearing by the Parole Board." Thereafter, in lieu of granting leave to appeal, the Supreme Court remanded the matter to the Parole Board for another parole release interview and directed that Judge Kaczmarek's written objection to parole release be stricken from Vargas' file and replaced with the opinion of the successor judge.

In compliance with the Supreme Court's order, the Parole Board chairperson interviewed Vargas. In a March 5, 1999, decision, the Parole Board stated that after "your most recent interview, the majority of the Parole Board has no interest in taking action at this time." The decision further states that "[f]ollowing an interview and review of this case, the Parole Board does not have interest [in] proceeding to a public hearing at this time." The decision does not explain why the Parole Board came to this conclusion.

On April 13, 1999, Vargas filed an application for leave to appeal to the circuit court, seeking review and reversal of the Parole Board's decision. Relying heavily on Johnson, the circuit court determined that Vargas had never reached the point where he was "eligible" for parole because the Parole Board terminated the parole process at the preliminary stage of deciding whether to conduct a public hearing. Thus, the circuit court denied leave to appeal the decision of the Parole Board. Vargas appeals this order by leave granted.

C. Cespedes v. Parole Board

After a nonjury trial in 1982, the trial court convicted Merquiades Cespedes of possession with intent to deliver more than 650 grams of cocaine, apparently for his involvement as a doorman during a drug deal. The trial court sentenced Cespedes to life imprisonment.2

Cespedes had a criminal history before the instant drug conviction, including previous drug charges as well as unspecified convictions. Although Cespedes received "major misconducts" during his imprisonment

635 N.W.2d 350
and attempted an escape, the record also reveals that he received his GED and completed numerous other educational classes, served as a teacher's aide for a bilingual education program, and maintained membership in organizations such as the United States Jaycees and Jaycees International. Further, the record reveals that Cespedes accepts full responsibility for his drug law violation and is sincere in remorse. The record further reveals that he has remained married throughout his imprisonment and his wife, son, and daughter continue to support him.

After a March 1, 1999, interview, the...

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