In re Parole of Haeger

• Decision Date: 01 November 2011
• Docket Number: Docket No. 297099.
• Citation: 294 Mich.App. 549,813 N.W.2d 313
• Court: Court of Appeal of Michigan — District of US
• Parties: In re PAROLE OF HAEGER.

294 Mich.App. 549

813 N.W.2d 313

In re PAROLE OF HAEGER.

Docket No. 297099.

Court of Appeals of Michigan.

Submitted Aug. 10, 2011, at Detroit.

Decided Nov. 1, 2011, at 9:05 a.m.

Raymond H. Haeger in propria persona.

Before: MARKEY, P.J., and SAAD and GLEICHER, JJ.

GLEICHER, J.

The Michigan Parole Board (the Board) granted Raymond Harold Haeger parole after he had served approximately 17 years of a 15– to 30–year sentence. The Alpena County Prosecutor objected to Haeger's release and sought leave in the circuit court to appeal the Board's parole decision. The circuit court ruled that the Board had abused its discretion by granting parole despite that Haeger's probability for parole had actually declined since the Board's last consideration. Accordingly, the circuit court reversed the Board's decision.¹

We affirm the circuit court's reversal of the Board's decision but on different grounds. The Board failed to comply with certain regulatory provisions before reaching its parole decision. Specifically, Mich. Admin Code, R 791.7715(5)(b) mandates that a prisoner with “a history of ... [p]redatory or assaultive sexual offenses” undergo a “psychological or psychiatric evaluation before the release decision is made....” There is no record indication that Haeger received such an evaluation after 1993. It is also unclear whether the Board considered Haeger's “[d]evelopment of a suitable and realistic parole plan,” as required by Mich. Admin Code, R 791.7715(2)(c)(iii), because Haeger's transition accountability plan (TAP) does not appear in the record. We are further concerned that Parole Board Member Charles Brown based his decision, in part, on Haeger's completion of additional sexual offender therapy (SOT) in 2009 despite that no documentation of that therapy exists in Haeger's file. In addition, “holes” in the record that the Board failed to remedy persist even after the circuit court ordered the Board to supplement Haeger's file. Because the Board violated its regulatory duty to defer its decision until Haeger received a psychological evaluation and its duty to consider Haeger's development of a parole plan, and because the Board's failure to adequately and timely comply with the circuit court's remand order resulted in an incomplete record, we affirm the circuit court's decision to reverse the Board's grant of parole to Haeger.

I. THE PAROLE PROCESS IN MICHIGAN

The Parole Board, consisting of 10 members, is located within the Michigan Department of Corrections (DOC). MCL 791.231a(1). Prisoners come under the Board's jurisdiction after serving their minimum sentence, adjusted for any good time or disciplinary credits. MCL 791.233(1)(b) through (d); MCL 791.234(1)through (5). For each potential parolee, a DOC staff member must evaluate the prisoner, ensure the completeness of the prisoner's file, and prepare a summary “Parole Eligibility Report” (PER) to advise the Board. See In re Parole of Elias, 294 Mich.App. 507, 511, 811 N.W.2d 541 (2011), citing DOC Policy Directive 06.05.103, p 1,² and MCL 791.235(7). Board staff members use this compiled information to score the prisoner's parole guidelines. DOC Policy Directive 06.05.100, ¶ D, p 1.

“Statutorily mandated parole guidelines form the backbone of the parole-decision process.” Elias, 294 Mich.App. at 511, 811 N.W.2d 541. The guidelines “ ‘attempt to quantify’ ” various factors relevant to the parole decision in order “ ‘to inject more objectivity and uniformity into’ ” the parole process. Id., quoting In re Parole of Johnson, 219 Mich.App. 595, 599, 556 N.W.2d 899 (1996). The Legislature directed the DOC to refine the statutory guidelines by developing more detailed regulations. MCL 791.233e(1). “Pursuant to this legislative mandate, the DOC promulgated regulations outlining certain factors for the Board to consider when making a parole decision[.]” Elias, 294 Mich.App. at 513. The Board must determine “whether parole is in the best interests of society and public safety” considering the prisoner's past and current criminal behavior, “[i]nstitutional adjustment,” “[r]eadiness for release,” “personal history and growth,” and “physical and mental health.” Mich. Admin Code, R 791.7715(2). Moreover, when a prisoner has a history of “predatory or assaultive sexual offenses,” the prisoner must undergo a “psychological or psychiatric evaluation before the release decision is made....” Mich. Admin Code, R 791.7715(5).

The DOC regulations further direct the Board to consider “all relevant facts and circumstances, including the prisoner's probability of parole as determined by the parole guidelines....” Mich. Admin Code, R 791.7715(1). The guidelines, in turn, require that scoring be based on the prisoner's time served as well as the “aggravating and mitigating circumstances” of the sentencing offense, the “prisoner's prior criminal record,” the number of major misconducts committed by the prisoner within the preceding one- and five-year periods, the prisoner's score on “risk screening scales,” the prisoner's age, the prisoner's performance in recommended institutional programs, and “[t]he prisoner's mental health” status. Mich. Admin Code, R 791.7716(3).³ The guideline factors are separated into eight sections, each with a list of subfactors to be scored and instructions on the point value to be assigned. Elias, 294 Mich.App. at 517, 811 N.W.2d 541, citing DOC Policy Directive 06.05.100, Attachment A, pp. 1–9. The aggregated score is “ ‘used to fix a probability of parole determination for each individual on the basis of a guidelines schedule. Prisoners are categorized under the guidelines as having a high, average, or low probability of parole.’ ” Elias, 294 Mich.App. at 518, 811 N.W.2d 541, quoting Johnson, 219 Mich.App. at 599, 556 N.W.2d 899.

A prisoner being considered for parole may also undergo an informal and nonadversarial “interview conducted by one or more Board members assigned to the prisoner's panel.” Elias, 294 Mich.App. at 518, 811 N.W.2d 541, citing DOC Policy Directive 06.05.104, ¶ R, p 4. Following the parole interview, a “Case Summary Report” is generally created for the Board's review.⁴ See Elias, 294 Mich.App. at 519, 811 N.W.2d 541.

As described in Elias, the DOC recently implemented the Michigan Prisoner ReEntry Initiative (MPRI), which is “designed to promote public safety and reduce the likelihood of parolee recidivism” and to “ ‘improve[ ] decision making at critical decision points,’ such as when the Board is considering whether to release a prisoner from incarceration on parole.” Id., quoting DOC Policy Directive 03.02.100, ¶ C p 1. Under the MPRI, the DOC and the Board are now required to prepare and consider additional reports, in particular the transition accountability plan TAP.⁵ The TAP “succinctly describe [s] ... exactly what is expected for offender success.” The MPRI Model: Policy Statements and Recommendations, Michigan Prisoner ReEntry Initiative, January 2006, p 5.⁶ A DOC staff member “must formulate a TAP with each prisoner, mostly to assist the prisoner's reentry into society, but also to assist the Board in rendering its parole decision.” Elias, 294 Mich.App. at 519–520, 811 N.W.2d 541. The TAP analyzes the prisoner's risk factors, sets goals to decrease those risks, and establishes a plan for the prisoner to reach his or her goals. Id. Under the MPRI, the Board is also now required to conduct a “correctional offender management profiling for alternative sanctions” (COMPAS) evaluation. The COMPAS program

is a comprehensive risk and needs assessment system, which takes into account both static information (such as the prisoner's past criminal offenses) and dynamic data (such as the prisoner's evolving attitudes and mental condition)....

[A] case manager considers various characteristics of the offender and the offense and inputs scores into the COMPAS computer software program. The software generates a score ranking the offender's statistical likelihood of violence, recidivism, success on parole, and other factors. [Id. at 520–521, 811 N.W.2d 541.]

Although “matters of parole lie solely within the broad discretion of the [Board],” Jones v. Dep't of Corrections, 468 Mich. 646, 652, 664 N.W.2d 717 (2003); see also Hopkins v. Parole Bd., 237 Mich.App. 629, 637, 604 N.W.2d 686 (1999); MCL 791.234(11), that discretion is clearly restricted by legislative limitations. “In addition to creating the framework shaping the regulatory parole guidelines,” Elias, 294 Mich.App. at 522, 811 N.W.2d 541, the Legislature dictates that “ ‘[a] prisoner shall not be given liberty on parole until the board has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner's mental and social attitude, that the prisoner will not become a menace to society or to the public safety,’ ” Johnson, 219 Mich.App. at 598, 556 N.W.2d 899, quoting MCL 791.233(1)(a). Moreover, “[o]nce the Board has rendered its decision, it must issue in writing ‘a sufficient explanation for its decision’ to allow ‘meaningful appellate review,’ Glover v. Parole Bd., 460 Mich. 511, 519, 523, 596 N.W.2d 598 (1999), and to inform the prisoner of ‘specific recommendations for corrective action’ if necessary ‘to facilitate release,’ MCL 791.235(12).” Elias, 294 Mich.App. at 522–523, 811 N.W.2d 541.

II. PRIOR AND CURRENT PAROLE CONSIDERATIONS

With this framework in mind, we now consider the history of Haeger's imprisonment and the progression of his parole reviews. In 1992, Haeger pleaded nolo contendere to breaking and entering an occupied dwelling with the intent to commit a felony inside, MCL 750.110a(2)(b), and first-degree criminal sexual conductcommitted during a felony, MCL 750.520b(1)(c). Haeger was sentenced to concurrent terms of 15 to 30 years' imprisonment for each offense. Haeger's convictions arose from the forcible rape of his cousin in the early morning hours of February 2, 1992. After consuming a large amount...