Makowski v. Governor

• Decision Date: 18 August 2016
• Docket Number: Docket No. 327396.
• Citation: Makowski v. Governor, 317 Mich.App. 434, 894 N.W.2d 753 (Mich. App. 2016)
• Parties: MAKOWSKI v. GOVERNOR.
• Court: Court of Appeal of Michigan

317 Mich.App. 434

894 N.W.2d 753

MAKOWSKI

v.GOVERNOR.

Docket No. 327396.

Court of Appeals of Michigan.

Submitted July 7, 2016, at Detroit.

Decided Aug. 18, 2016.

Approved for publication Oct. 4, 2016, at 9:00 a.m.

Michigan Clinical Law Program (by Paul D. Reingold and Kimberly Thomas) and Charles L. Levin, for Matthew Makowski.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and A. Peter Govorchin, Assistant Attorney General, for the Governor and Secretary of State.

Before: RIORDAN, P.J., and SAAD and M.J. KELLY, JJ.

PER CURIAM.

In this dispute over the denial of parole after having his sentence commuted, plaintiff, Matthew Makowski, appeals the opinion and order of the Court of Claims denying his request that it retain jurisdiction after our Supreme Court's decision remanding Makowski to the parole board's jurisdiction, see Makowski v. Governor, 495 Mich. 465, 852 N.W.2d 61 (2014), as amended on reh 497 Mich. 862, ––– N.W.2d –––– (2014), and the parole board's decision to deny him parole. On appeal, Makowski argues—on various grounds—that the board had no authority to deny him parole and that the Court of Claims should have retained jurisdiction to ensure that the board paroled him as it was required to do. We conclude that the commutation reduced the severity of Makowski's sentence by making him immediately eligible for parole, but the commutation did not mandate parole. Because the board had jurisdiction over Makowski and had the discretion to consider whether he was an appropriate candidate for parole, the Court of Claims correctly determined that there were no grounds for retaining jurisdiction to supervise the board's decision-making process. Consequently, we affirm.

I. BASIC FACTS

The circuit court sentenced Makowski to serve life in prison without the possibility of parole after a jury found him guilty of first-degree murder in 1988. Id. at 468, 852 N.W.2d 61. In 2010, the board considered Makowski's application for commutation of his sentence and sent the application to the Governor with a favorable recommendation. Id. at 468–469, 852 N.W.2d 61. The Governor signed the commutation. It was then signed by the Secretary of State, who affixed the Great Seal. Id. at 469, 852 N.W.2d 61. After the family of the victim expressed opposition, the Governor revoked the commutation. Id. at 469–470, 852 N.W.2d 61.

Makowski sued the Governor and Secretary of State in 2011. He argued that the Governor lacked the authority to revoke his commutation once it was signed, sealed, and delivered. Id. at 470, 852 N.W.2d 61. The case eventually went to our Supreme Court, and the Court determined that the Governor had validly commuted Makowski's sentence and lacked the authority to revoke the commutation once made. Id. at 485–490, 852 N.W.2d 61. Accordingly, it ordered the Department of Corrections to reinstate Makowski's sentence to "a parolable life sentence" and remanded him to the parole board's jurisdiction. Id. at 490, 852 N.W.2d 61.

After our Supreme Court remanded the case, the board issued a decision in October 2014 expressing "no interest" in taking further action to parole Makowski. Makowski moved for clarification or rehearing of the Supreme Court's decision; he complained that the Department of Corrections used the final sentence of the Court's decision to treat him as a person with a parolable life sentence instead of someone with a sentence commuted to a minimum term of years. He contended that the board already agreed to parole him when it sent the commutation recommendation to the Governor, and he urged the Supreme Court to modify its opinion to restore him to exactly the status he would have had but for the Governor's wrongful attempt to revoke the commutation.

In lieu of granting the motion, the Supreme Court entered an order amending the last sentence of its opinion to read:

Accordingly, we reverse the judgment of the Court of Appeals. Consistent with the undisputed language of plaintiff's commutation, we further order the Department of Corrections to reinstate plaintiff's sentence to a minimum term of years—equivalent to the amount of time served as of the date of the Michigan Parole and Commutation Board's decision to recommend that plaintiff's sentence be commuted—to a maximum of life, and remand plaintiff to the jurisdiction of the parole board. [Makowski, 497 Mich. at 863, –––N.W.2d ––––, amending on reh 495 Mich. at 490, 852 N.W.2d 61.]

Makowski then moved to have the trial court retain jurisdiction over the case because further remedial action might be needed. He explained that he had not been processed for parole even though all other prisoners granted a commutation were promptly released. Thereafter, the board again denied Makowski parole; it explained that Makowski minimized his responsibility for the crime and needed additional insight into his offense to ensure that he did not pose a risk to the community. Makowski asserted that all the prisoners with mandatory life sentences granted a commutation during the Granholm administration were punctually processed for release and that the import of the Supreme Court's decision was that he too should be treated exactly as those prisoners. He argued that the Supreme Court did not remand the matter to the board to consider anew whether he should be released, but rather did so to process him for release.

In October 2014, while the motion to retain jurisdiction was still pending, the case was transferred to the Court of Claims. The Court of Claims heard the motion and issued an opinion and order explaining that it considered the gravamen of Makowski's argument to be that the board violated a legal duty arising out of historical precedent and procedural implications rather than a statutory mandate. The court directed the parties to address whether the court properly understood the gravamen of the issue, and if it did, why the proper remedy was not to file a new action for habeas corpus or mandamus. The court further ordered the parties to provide it with any legal authority pertaining to whether the board must parole a prisoner after the board recommends, and the governor grants, a commutation.

At a second hearing, Makowski maintained that the court should place him in the same position he would have been in had Governor Granholm not attempted to revoke his commutation. He characterized his commutation as effectively granting him parole, leaving the board with the ministerial duty to carry out the commutation. The Governor and Secretary of State argued that the commutation merely rendered Makowski eligible for parole.

In April 2015, the Court of Claims issued its opinion and order. It stated that Makowski had identified a "historical practice, but not an actual, obvious legal entitlement to an outright grant of parole." The court concluded that the law did not provide that a commutation entitled him to parole. It then examined the language used in the commutation and determined that it simply made Makowski eligible for parole, but not entitled to it. The court opined that if Makowski felt that the board had not properly exercised its discretion, his recourse was to file a new cause of action. The court did order that the board could not consider or use any documentation conveyed by Governor Granholm or her agents in connection with her attempted revocation when considering Makowski for parole, but otherwise denied Makowski's requests for relief.

Makowski then appealed in this Court and applied to the Supreme Court for permission to bypass this Court. The Supreme Court denied the bypass request. Makowski v. Governor, 498 Mich. 876, 868 N.W.2d 893 (2015).

II. RIGHT TO IMMEDIATE PAROLE

A. STANDARDS OF REVIEW

Makowski argues that the Court of Claims erred in various ways when it refused to grant his requested relief. This Court reviews de novo questions of constitutional law. People v. Ackley, 497 Mich. 381, 388, 870 N.W.2d 858 (2015). This Court also reviews de novo whether the trial court properly selected, interpreted, and applied the relevant statutes. Kincaid v. Cardwell, 300 Mich.App. 513, 522, 834 N.W.2d 122 (2013).

B. ANALYSIS

Makowski argues that the board had no authority to deny him parole once the Governor commuted his sentence. Specifically, he maintains that the Governor's commutation entitled him to parole and that the board's refusal to parole him contravened the Governor's exclusive authority to commute sentences.

Michigan's Constitution grants the governor the power "to grant reprieves, commutations and pardons after convictions ... upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law." Const. 1963, art. 5, § 14. The power to commute a sentence does not alter the source or authority of the original sentence; only trial courts have the authority to issue a judgment of sentence. MCL 769.1(1). The governor's power to commute, rather, is the power to alter or amend an existing sentence to one that is less severe. See Kent Co. Prosecutor v. Kent Co. Sheriff, 425 Mich. 718, 725, 391 N.W.2d 341 (1986) (opinion by BOYLE , J.). Makowski, therefore, mischaracterizes his amended sentence when he...