Parole of Johnson, In re, Docket No. 186563

CourtCourt of Appeal of Michigan (US)
Writing for the CourtFITZGERALD
Citation219 Mich.App. 595,556 N.W.2d 899
PartiesIn re Parole of JOHNSON. OAKLAND COUNTY PROSECUTOR, Appellee, v. Kenneth JOHNSON, Appellant.
Docket NumberDocket No. 186563
Decision Date29 October 1996

Page 899

556 N.W.2d 899
219 Mich.App. 595
In re Parole of JOHNSON.
OAKLAND COUNTY PROSECUTOR, Appellee,
v.
Kenneth JOHNSON, Appellant.
Docket No. 186563.
Court of Appeals of Michigan.
Submitted Sept. 16, 1996, at Detroit.
Decided Oct. 29, 1996, at 9:05 a.m.
Released for Publication Jan. 2, 1997.

Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Anica Letica, Assistant Prosecuting Attorney, for appellee.

[219 Mich.App. 596] James W. Daly, Adrian, for appellant.

Page 900

Before WAHLS, P.J., and FITZGERALD and L.P. BORRELLO, * JJ.

FITZGERALD, Judge.

Kenneth Johnson appeals by leave granted the circuit court order vacating the Parole Board's decision to grant him parole. We affirm.

On February 22, 1990, Johnson was convicted of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He was sentenced to prison terms of three to twenty years for armed robbery, one to five years for carrying a concealed weapon, and two years for felony-firearm. Johnson's minimum sentence expired on or about July 22, 1994. He was released on parole on August 11, 1994, pursuant to a February 7, 1994, decision by the Michigan Department of Corrections Parole Board. On October 6, 1994, the Oakland County Prosecutor filed an application for leave to appeal before the circuit court. The circuit court granted leave, and on February 21, 1995, the court found that the Parole Board had abused its discretion in granting Johnson parole. On the basis of that finding, the court vacated the parole order and Johnson was returned to prison. Johnson now appeals the circuit court's order.

The Legislature has entrusted the decision whether to grant or deny parole to the Parole Board. M.C.L. § 791.234(7); M.S.A. § 28.2304(7). Traditionally, the board's discretion has been deemed to be broad, though still subject to judicial review. Lane v. Parole Bd, 14 Mich.App.[219 Mich.App. 597] 557, 562-563, 165 N.W.2d 841 (1968), rev'd on other grounds 383 Mich. 50, 173 N.W.2d 209 (1970); Ex parte McBride, 68 F.Supp. 139, 140 (W.D.Mich.1946). While the Parole Board continues to enjoy broad discretion in carrying out its legislatively prescribed function, the Legislature's recent enactments have circumscribed this discretion to some extent. See M.C.L. § 791.233e; M.S.A. § 28.2303(6) (1992 legislation creating a procedure for establishing guidelines for the board to follow in making parole decisions). In addition to limiting the board's discretion, the Legislature clarified the right of prisoners, crime victims, and prosecutors to appeal the Parole Board's decisions to the circuit court. M.C.L. § 791.234(7); M.S.A. § 28.2304(7); Wayne Co. Prosecutor v. Parole Bd., 210 Mich.App. 148, 152, 532 N.W.2d 899 (1995) (holding that the 1992 amendment to specify victim and prosecutor appeals was not a change in the law; rather it clarified the previously existing right to maintain such an appeal). The pertinent portion of that statute provides:

[A] prisoner's release on parole is discretionary with the parole board. The action of the parole board in granting or denying a parole is appealable by the prisoner, the prosecutor of the county from which the prisoner was committed, or the victim of the crime for which the prisoner was convicted. [M.C.L. § 791.234(7); M.S.A. § 28.2304(7) (previously enumerated as subsection ).]

We find that this clarification of the right to appeal envisions an increased resort to judicial review of board decisions. Consequently, we find that increased activity in this area requires that the appellate courts flesh out the parameters for reviewing such appeals.

In the first case to reach this Court since the statutory amendment, we concluded that review should be [219 Mich.App. 598] under an abuse of discretion standard. Wayne Co. Prosecutor, supra at 153, 532 N.W.2d 899. See also MCR 7.104(D)(5)(b). 1 Such a determination is to be made "in light of the record and of the statutory requirements" that limit the board's discretion. Wayne Co. Prosecutor, supra at 154, 532 N.W.2d 899. Additionally, we recognized that, although the board is given...

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12 practice notes
  • Crump v. Lafler, No. 09–1073.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 21, 2011
    ...Michigan parole system was amended to limit, in some degree, the Parole Board's [657 F.3d 401] discretion. See In re Parole of Johnson, 219 Mich.App. 595, 556 N.W.2d 899, 900 (1996) (“While the Parole Board continues to enjoy broad discretion in carrying out its legislatively prescribed fun......
  • Parole of Glover, In re, Docket No. 189303
    • United States
    • Court of Appeal of Michigan (US)
    • December 12, 1997
    ...parole is reviewed for an abuse of discretion. MCR 7.104(D)(5)(b); M.C.L. § 791.234(7); M.S.A. § 28.2304(7), In re Parole of Johnson, 219 Mich.App. 595, 597-598, 556 N.W.2d 899 (1996). Generally, an abuse of discretion is found where an unprejudiced person, considering the facts upon which ......
  • Makowski v. Governor, Docket No. 307402.
    • United States
    • Court of Appeal of Michigan (US)
    • December 27, 2012
    ...no such statutory guidelines limiting the Governor's discretion. See, e.g., MCL 791.233(1)(a); [829 N.W.2d 297]In re Parole of Johnson, 219 Mich.App. 595, 598–599, 556 N.W.2d 899 (1996). Consistent with this constitutional grant of absolute power to the Governor, it is well-established that......
  • Hopkins v. Parole Bd., Docket No. 213927.
    • United States
    • Court of Appeal of Michigan (US)
    • January 18, 2000
    ...whether it abused its discretion must be determined in light of the record and these statutory requirements. In re Parole of Johnson, 219 Mich.App. 595, 598, 556 N.W.2d 899 (1996). First and foremost, the board may not grant a prisoner liberty on parole until it "has reasonable assurance, a......
  • Request a trial to view additional results
12 cases
  • Crump v. Lafler, No. 09–1073.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 21, 2011
    ...Michigan parole system was amended to limit, in some degree, the Parole Board's [657 F.3d 401] discretion. See In re Parole of Johnson, 219 Mich.App. 595, 556 N.W.2d 899, 900 (1996) (“While the Parole Board continues to enjoy broad discretion in carrying out its legislatively prescribed fun......
  • Parole of Glover, In re, Docket No. 189303
    • United States
    • Court of Appeal of Michigan (US)
    • December 12, 1997
    ...parole is reviewed for an abuse of discretion. MCR 7.104(D)(5)(b); M.C.L. § 791.234(7); M.S.A. § 28.2304(7), In re Parole of Johnson, 219 Mich.App. 595, 597-598, 556 N.W.2d 899 (1996). Generally, an abuse of discretion is found where an unprejudiced person, considering the facts upon which ......
  • Makowski v. Governor, Docket No. 307402.
    • United States
    • Court of Appeal of Michigan (US)
    • December 27, 2012
    ...no such statutory guidelines limiting the Governor's discretion. See, e.g., MCL 791.233(1)(a); [829 N.W.2d 297]In re Parole of Johnson, 219 Mich.App. 595, 598–599, 556 N.W.2d 899 (1996). Consistent with this constitutional grant of absolute power to the Governor, it is well-established that......
  • Hopkins v. Parole Bd., Docket No. 213927.
    • United States
    • Court of Appeal of Michigan (US)
    • January 18, 2000
    ...whether it abused its discretion must be determined in light of the record and these statutory requirements. In re Parole of Johnson, 219 Mich.App. 595, 598, 556 N.W.2d 899 (1996). First and foremost, the board may not grant a prisoner liberty on parole until it "has reasonable assuran......
  • Request a trial to view additional results

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