Manuel v. Department of Corrections

• Decision Date: 01 April 1985
• Docket Number: Docket No. 79776
• Citation: 140 Mich.App. 356,364 N.W.2d 334
• Parties: Thomas Allen MANUEL, Plaintiff, v. DEPARTMENT OF CORRECTIONS, Defendant. 140 Mich.App. 356, 364 N.W.2d 334
• Court: Court of Appeal of Michigan — District of US

Page 334

364 N.W.2d 334

Thomas Allen MANUEL, Plaintiff, v. DEPARTMENT OF CORRECTIONS, Defendant.

Docket No. 79776.

140 Mich.App. 356, 364 N.W.2d 334

Court of Appeals of Michigan.

Submitted Oct. 10, 1984.

Decided Jan. 23, 1985.

Released for Publication April 1, 1985.

[140 MICHAPP 357] Thomas A. Manuel, in pro. per.

Before CYNAR, P.J., and BEASLEY and SHEPHERD, JJ.

PER CURIAM.

Plaintiff seeks mandamus to compel the Department of Corrections to remove from his record one of two ostensibly concurrent life sentences in accordance with the mandate of this Court's determination in plaintiff's previous appeal of right of his underlying criminal convictions. In lieu of issuing an order to show cause, this Court resolves this matter through this per curiam opinion. GCR 1963, 816.2(2)(g); People v. Giacalone, 16 Mich.App. 352, 167 N.W.2d 871 (1969).

Following trial by jury, plaintiff was convicted of first-degree murder in the Ingham County Circuit Court in 1978. The following day, plaintiff pled guilty to a supplemental information charging him as an habitual offender. The circuit court sentenced plaintiff to life imprisonment on both charges. By virtue of the Code of Criminal Procedure, however, parole is not available to one serving a life sentence for murder in the first degree. M.C.L. Sec. 791.234; M.S.A. Sec. 28.2304.

[140 MICHAPP 358] The sentencing judge, however, felt that the life sentence as an habitual offender would eventually come within the jurisdiction of the parole board. Despite the fact that habitual offenders do not accrue good-time credits, regular or special, People ex rel. Oakland Prosecuting Attorney v. Bureau of Pardons & Paroles, 78 Mich.App. 111, 259 N.W.2d 385 (1977), and notwithstanding the direction in the habitual offender provisions of the Code of Criminal Procedure to the effect that offenders so sentenced, other than for major controlled substance offenses, "shall not be eligible for parole before the expiration of the minimum term fixed by the sentencing judge at the time of sentence", M.C.L. Sec. 769.12(3); M.S.A. Sec. 28.1084(3), one convicted as an habitual offender and sentenced to life imprisonment might nonetheless be eligible for parole after the expiration of ten calendar years. People v. Waterman, 137 Mich.App. 429, 358 N.W.2d 602 (1984).

On plaintiff's appeal of right, this Court, in an unpublished memorandum opinion, Docket No. 43697, decided August 20, 1980, citing People v. Fountain, 407 Mich. 96, 282 N.W.2d 168 (1979), held that plaintiff could be sentenced to only one term of imprisonment on the underlying felony in the supplemental information. It was therefore ordered that "one of defendant's two concurrent life sentences be and hereby is vacated". No specification as to which of the two "concurrent" life sentences was vacated was contained in this Court's prior decision.

Ordinarily, the sentence as an habitual offender subsumes the underlying sentence, which is therefore vacated, since the sentence under the habitual offender statute is traditionally as long or longer than the sentence for the underlying felony, and even when equal is generally more severe because of the inability to accrue credits for regular or [140 MICHAPP 359] special good-time, Oakland County Prosecuting Attorney v. Bureau of Pardons & Paroles, supra.

In the present circumstances, however, following this...