Scholtz v. Michigan Parole Bd., Docket No. 191528

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: Before CORRIGAN; PER CURIAM
• Citation: 231 Mich.App. 104,585 N.W.2d 352
• Parties: James Kevin SCHOLTZ, Plaintiff-Appellant, v. MICHIGAN PAROLE BOARD, Defendant-Appellee.
• Docket Number: Docket No. 191528
• Decision Date: 11 August 1998

Page 352

585 N.W.2d 352 231 Mich.App. 104 James Kevin SCHOLTZ, Plaintiff-Appellant,
v.
MICHIGAN PAROLE BOARD, Defendant-Appellee. Docket No. 191528. Court of Appeals of Michigan. Submitted Aug. 6, 1997, at Lansing.
Decided Aug. 11, 1998, at 9:00 a.m.
Released for Publication Nov. 2, 1998.

Page 353

[231 Mich.App. 105] 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.

[231 Mich.App. 106] 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 [231 Mich.App. 107] 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,"

Page 354

"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 [231 Mich.App. 108] (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 [231 Mich.App. 109] 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...