Scholtz v. Michigan Parole Bd.

Decision Date11 August 1998
Docket NumberDocket No. 191528
Citation231 Mich.App. 104,585 N.W.2d 352
PartiesJames Kevin SCHOLTZ, Plaintiff-Appellant, v. MICHIGAN PAROLE BOARD, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Neal Bush, Detroit, for James K. Scholtz.

Frank J. Kelly, Attorney General, Thomas L. Casey, Solicitor General, and Charles C. Schettler, Jr., Assistant Attorney General, for the Parole Board.

Before CORRIGAN, C.J., and MARKEY and MARKMAN, JJ.

PER CURIAM.

Appellant appeals by leave the circuit court order denying his application for leave to appeal from the Parole Board's decision to deny him parole. We vacate the circuit court's order and remand to the Parole Board for further proceedings consistent with this opinion.

I

In exchange for the dismissal of other charges, appellant pleaded guilty of one count of second-degree criminal sexual conduct (CSC II), M.C.L. § 750.520c(1)(a); M.S.A. § 28.788(3)(1)(a), and two counts of attempted CSC II, M.C.L. § 750.92; M.S.A. § 28.287, for molesting his business partner's three minor daughters. On September 30, 1991, the trial court sentenced appellant to concurrent terms of imprisonment of four to fifteen years for the CSC II conviction and three to five years for each conviction of attempted CSC II.

Appellant became eligible for parole in 1995. In June 1995, the Parole Board evaluated him under the parole guidelines. Appellant received a score of "+8," indicating a "high probability" of parole. The guidelines scoresheet is not signed by the Parole Board members and the sections labeled " rationale for deviation," "parole guideline decision," and "final panel decision" are blank. A July 1995 "Parole Board Screening Form," however, contains the following remarks about appellant: "Of concern is the number of victims and the less than positive SOT term report. The report should be discussed w/ [appellant] in detail. Need impressions." 1 Located at the bottom of the form is the remark "Not impressed!"

One of the Parole Board members interviewed appellant on August 10, 1995. He subsequently noted on a "Parole Board Hearing Comments" form that he "[g]ave [appellant] 3 chances to tell [him] he can't be around kids--didn[']t bite. Gave him chances to express victim empathy--didn't. Has no firm plans--none for relapse prevention, none for employment, future plans," and "[p]syche eval is right: superficial, unprepared. Has 6 yr old daughter at home--[p]lacement inappropriate!" Printed at the bottom of the form is the notation "Inadequate. No[t] ready."

On the Parole Board Decision Sheet, dated August 11, 1995, under the caption "Reasons for Continuance," a board member checked "Nature of Crime(s)" and "Insufficient Program/Therapy Progress." Under the heading "Recommendations," the board member checked "Clear Conduct," "Positive Work/School Reports," and "Other." He inserted the additional words "SOT Aftercare" in the space next to the word "Other." In the "Comments" section of the document, the board member wrote: "Improve Relapse Prevention Plan, placement plans." All three members of the Parole Board signed or initialed the form. Appellant did not receive a copy of the decision sheet.

The Parole Board formally denied appellant parole on August 14, 1995. In the document captioned "Notice of Action," the board noted that appellant was "continued." Next to the heading "Action Description," the form states "Risk to Community." Under the heading "Reasons for Continuance," the form states "Nature of Crime" and "Insufficient Progress." The words "Clear Conduct," "Positive Work/School Reports," and "Other" are printed in the "Recommendations" section of the form. In the "Comments" section, the form states: "Other: SOT Aftercare." The Notice of Action is the only document provided to an inmate to inform him of the reasons for denying him parole. 2

Appellant filed an application in the circuit court for leave to appeal the Parole Board's decision under M.C.L. § 791.234(7); M.S.A. § 28.2304(7). The court dismissed the application, reasoning as follows:

I believe that the Parole Board did provide substantial and compelling reasons in support of its decision, and they're the ones that have the discretion, not me.... Why (sic) I find that the language may be somewhat abbreviated but the language that they use adequately articulates the reason for denying parole and that was something that was in their discretion to do, and it is not within my discretion to change unless I find an abuse of discretion. Therefore, I will deny the application for leave to appeal on its merits.

II

Appellant argues that the Parole Board failed to provide substantial and compelling reasons in writing for denying him parole under M.C.L. § 791.233e(6); M.S.A. § 28.2303(6)(6) when his guidelines score demonstrated a high probability of parole. We agree. 3

This Court recently described the parole procedure, including judicial review of the Parole Board's decision, in In re Parole of Johnson, 219 Mich.App. 595, 596-599, 556 N.W.2d 899 (1996):

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. 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).

* * * * * *

In the first case to reach this Court since the statutory amendment, we concluded that review should be 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). 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 discretion in parole decisions, that discretion is not unfettered. Id. at 153, 532 N.W.2d 899. Rather, it is limited by several statutory guidelines. Id.

* * * * * *

While the statutes provide the framework, the Legislature also enacted provisions to create "parole guidelines," intended to "govern the exercise of the parole board's discretion ... as to the release of prisoners on parole...." M.C.L. § 791.233e(1); M.S.A. § 28.2303(6)(1). The parole guidelines are now found at 1996 MR 1, R 791.7716. The guidelines were filed and became effective after the parole decision was made in the instant case. However, as mandated by statute, the Parole Board was clearly utilizing the guidelines in their proposed form to evaluate defendant's eligibility. M.C.L. § 791.233e(5); M.S.A. § 28.2303(6)(5). Therefore, we review the Parole Board's exercise of discretion as it is governed by the parole guidelines.

The parole guidelines are an attempt to quantify the applicable factors that should be considered in a parole decision. Those factors are set forth by statute and are further refined by administrative rule. M.C.L. § 791.233e; M.S.A. § 28.2303(6); 1996 MR 1, R. 791.7715. By quantifying the factors, the Legislature plainly intended to inject more objectivity and uniformity into the process in order to minimize recidivism and decisions based on improper considerations such as race. M.C.L. § 791.233e; M.S.A. § 28.2303(6); 1996 MR 1, R. 791.7716. Therefore, each potential parolee is evaluated under the guidelines and scored with respect to each guidelines category. These scores are then aggregated to determine a total guidelines score. That score is then 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. 4

M.C.L. § 791.233e(6); M.S.A. § 28.2303(6)(6) governs deviations from the guidelines' recommendation:

The parole board may depart from the parole guideline by denying parole to a prisoner who has a high probability of parole as determined under the parole guidelines or by granting parole to a prisoner who has a low probability of parole as determined under the parole guidelines. A departure under this subsection shall be for substantial and compelling reasons stated in writing. The parole board shall not use a prisoner's gender, race, ethnicity, alienage, national origin, or religion to depart from the recommended parole guideline.

Under Johnson, supra at 599, 556 N.W.2d 899, the Parole Board must provide substantial and compelling reasons for departing from the guidelines' recommendation even where the guidelines existed only in proposed form at the time of the decision. 5

We conclude that the Parole Board failed to provide substantial and compelling reasons in writing for departing from the guidelines' recommendation in this case. The Parole Board's reasons for denying appellant parole contained in the Parole Board Decision Sheet were "Nature of Crime(s)" and "Insufficient...

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