In re Parole of Hill

• Decision Date: 08 November 2012
• Docket Number: Docket No. 301364.
• Citation: 827 N.W.2d 407,298 Mich.App. 404
• Parties: In re PAROLE OF HILL.
• Court: Court of Appeal of Michigan — District of US

298 Mich.App. 404

827 N.W.2d 407

In re PAROLE OF HILL.

Docket No. 301364.

Court of Appeals of Michigan.

Submitted Jan. 5, 2012, at Grand Rapids.

Decided Nov. 8, 2012, at 9:00 a.m.

Arthur J. Cotter, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the Berrien County Prosecuting Attorney.

State Appellate Defender, Detroit (by Susan M. Meinberg and Marla R. McCowan), for Ronald W. Hill.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, and H. Steven Langschwager, Assistant Attorney General, for the Parole Board.

Before: HOEKSTRA, P.J., and MARKEY and BORRELLO, JJ.

BORRELLO, J.

Appellant, Berrien County Prosecutor, appeals by leave granted the trial court's order granting appellee Ronald Wynn Hill's request for appointed counsel during the prosecutor's appeal of the decision by the intervenor Parole Board (Board) to grant Hill parole. For the reasons set forth in this opinion, we affirm.

I. FACTS AND PROCEDURAL HISTORY

In 1998, defendant pleaded guilty to second-degree murder for a death that resulted from a Molotov cocktail that was thrown through the window of his ex-girlfriend's home. Defendant was sentenced to 10 to 50 years' imprisonment. After several denials, the Board granted Hill parole on July 22, 2010. On August 30, 2010, the prosecutor applied for leave to appeal the Board's decision in the circuit court pursuant to MCL 791.234(11), and moved to stay the parole order. The circuit court granted the prosecutor's application and motion to stay.

Hill petitioned the trial court for a court-appointed attorney to represent him during the pendency of the prosecutor's appeal. The prosecutor objected, arguing that because Hill did not have a constitutional or statutory right to parole, he did not have a right to appointed counsel, and the circuit court did not have the authority to compel public funding to appoint counsel. The prosecutor maintained that the power to appropriate public funding for appointed counsel belonged to the Legislature, and argued that the judiciary's inherent power to compel appropriations to carry out its constitutional responsibilities was strictly limited. The prosecutor cited 46th Circuit Trial Court v. Crawford Co., 476 Mich. 131, 143, 719 N.W.2d 553 (2006), wherein our Supreme Court articulated that a circuit court has limited inherent authority to compel appropriations to carry out its constitutional responsibilities.

On November 10, 2010, the circuit court held a hearing to address the issue and concluded that it had the “inherent right under the ... separation of powers to do what is reasonable and necessary to see that justice is done and to carry out the constitutional and statutory mandates and duties of the court in a fair manner.” The circuit court held that Crawford Co. did not apply in this case because by appointing counsel, the circuit court did not need to order “any additional appropriation by the funding unit for any court purposes.” Instead, the court intended to use funding that had already been appropriated for appointing appellate counsel for indigent defendants, “in a manner that we determine to be reasonable and necessary.” The court concluded that the appointment of counsel was critical for the administration of justice. The court found that Hill was not capable of articulating the nuances involved with the appeal and stated that it would appoint counsel to represent Hill for the pendency of the prosecutor'sappeal. The circuit court declined to address the constitutional issue of whether Hill was entitled to appointed counsel and instead concluded that such appointment was “reasonable and necessary for the fair administration of justice.” The circuit court then entered an order appointing counsel for Hill.

On December 1, 2010, the prosecutor applied in this Court for leave to appeal the circuit court's order appointing counsel. Before this Court granted the prosecutor's application, on February 17, 2011, the trial court reversed the Board's order granting Hill parole.¹ On February 18, 2011, this Court granted the prosecutor's application for leave to appeal.² On appeal, the prosecutor argues that the circuit court's authority to appropriate and spend public funds is limited to what is necessary to carry out the court's constitutional responsibilities and that appointing counsel for Hill was not necessary to carry out any constitutional responsibility because Hill did not have a statutory or constitutional right to counsel.

II. MOOTNESS

As already noted, proceedings continued in the lower court after the prosecutor had moved for leave to appeal in this Court. The circuit court addressed the prosecutor's appeal and reversed the Board's decision to parole Hill. The Board moved for reconsideration of that decision and proceedings are no longer ongoing. “This Court's duty is to consider and decide actual cases and controversies.” Morales v. Parole Bd., 260 Mich.App. 29, 32, 676 N.W.2d 221 (2003). “To that end, this Court does not reach moot questions or declare principles or rules of law that have no practical legal effect in the case before us unless the issue is one of public significance that is likely to recur, yet evade judicial review.” Federated Publications, Inc. v. City of Lansing, 467 Mich. 98, 112, 649 N.W.2d 383 (2002), abrogated on different grounds by Herald Co., Inc. v. Eastern Mich. Univ. Bd. of Regents, 475 Mich. 463, 471–472, 719 N.W.2d 19 (2006). The issues in this case are of public significance and likely to recur, yet evade judicial review. Although Hill's case is no longer pending, prosecutors in this state will continue to appeal parole board decisions to grant parole. Thus, the issue of whether a circuit court has authority to appoint counsel during similar appeals is of public significance and likely to recur, yet evade review. Furthermore, we cannot find any published federal or state cases on the pertinent issues presented in this appeal. We therefore deem resolution of these issuesnecessary insofar as their resolution may provide legal guidance to tribunals who will decide these issues in the future. Accordingly, we do not determine the issues presented moot and will address them in this opinion. See Morales, 260 Mich.App. at 32, 676 N.W.2d 221.

III. STANDARDS OF REVIEW

The scope of a circuit court's powers involves a question of law that we review de novo. Traxler v. Ford Motor Co., 227 Mich.App. 276, 280, 576 N.W.2d 398 (1998). Whether an incarcerated defendant has a constitutional right to appointed counsel during a prosecutor appeal of a parole board decision, necessarily involves an issue of constitutional law that we also review de novo. People v. Geno, 261 Mich.App. 624, 627, 683 N.W.2d 687 (2004).

IV. ANALYSIS

A. THE PAROLE PROCESS IN MICHIGAN

A prisoner comes under the jurisdiction of the Parole Board after serving his or her minimum sentence, adjusted for good time or disciplinary credits. MCL 791.233(1)(a) through (d); MCL 791.234(1) through (5); In re Parole of Haeger, 294 Mich.App. 549, 552, 813 N.W.2d 313 (2011). The parole process is guided by statutorily mandated parole guidelines, Haeger, 294 Mich.App. at 553, 813 N.W.2d 313, but ultimately, “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 MCL 791.234(11); MCL 791.235(1). If the Board decides to grant parole, either the prosecutor of the county from which the prisoner was committed or the victim of the crime may apply for leave to appeal the Board's decision in the circuit court. MCL 791.234(11); In re Parole of Elias, 294 Mich.App. 507, 538, 811 N.W.2d 541 (2011). A prisoner “may respond to the application for leave to appeal through retained counsel or in propria persona, although no response is required,” MCR 7.118(D)(3)(b)(i); however, a prisoner has no right to appeal the Board's decision to deny parole. See Morales, 260 Mich.App. at 34–40, 676 N.W.2d 221. Once the Board enters an order granting parole, it has discretion to rescind that order for cause before the prisoner is released and after the Board conducts an interview with the prisoner. MCL 791.236(2). After a prisoner is released on parole, the prisoner remains in the legal custody and control of the Department of Corrections and the Board retains discretion to revoke parole for cause and in accord with statutorily proscribed procedural guidelines. Jones, 468 Mich. at 652–653, 664 N.W.2d 717;MCL 791.238; MCL 791.240a.

B. CONSTITUTIONAL RIGHT TO APPOINTED COUNSEL

1. DUE PROCESS LIBERTY INTEREST

Initially we note that Hill does not contend that there is a statute that confers a right to appointed counsel during a prosecutor appeal of a parole-release decision. Thus, we proceed by addressing Hill's contention that he possessed a constitutional right to appointed counsel. The prosecutor argues that the circuit court was not required to appoint counsel for Hill in order to carry out its constitutional responsibilities because Hill did not have a constitutional right to counsel. Conversely, Hill argues that the circuit court did not err by appointing counsel because he had a constitutionally protected right to appointed counsel during the pendency of the prosecutor's appeal. Hill's argument is based on his contention that a prisoner has a protected liberty interest once the Board makes its initial decision to grant parole.

The federal and state constitutions both guarantee that a person may not be deprived of life, liberty, or property without due process of law. U.S. Const., Am. XIV; Const. 1963, art. 1, § 17; Hanlon v. Civil Serv. Comm., 253 Mich.App. 710, 722, 660 N.W.2d 74 (2002). “Procedural due process limits actions by the government and requires it to institute safeguards in proceedings that affect those rights protected by due process, such as life, liberty, or property.” Kampf v. Kampf, 237 Mich.App. 377, 382, 603 N.W.2d 295 (1999)....