Wayne County Prosecutor v. Department of Corrections
| Decision Date | 29 May 1996 |
| Docket Number | 101389,Docket Nos. 101052,No. 8,101387 and 101388,8 |
| Citation | 548 N.W.2d 900,451 Mich. 569 |
| Parties | WAYNE COUNTY PROSECUTOR, Plaintiff-Appellee, v. DEPARTMENT OF CORRECTIONS and Gregory Young, Defendants-Appellants. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Lee YOUNG, Defendant-Appellant. Calender |
| Court | Michigan Supreme Court |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and George E. Ward, Chief Assistant Prosecuting Attorney, Wayne County Prosecutor's Office, Detroit, for plaintiff.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Chester S. Sugierski, Jr., Assistant Attorney General, Lansing, for defendant.
Stuart G. Friedman, Livonia, and Neal Bush, Detroit, for intervenor-appellant.
The question presented in these consolidated appeals concerns the construction of statutory provisions that describe when a parolee who has been convicted of another felony committed while he is on parole is again subject to the jurisdiction of the Parole Board.
The Court of Appeals, agreeing with the Wayne County Prosecutor, held that § 7a(2) of chapter VIII of the Code of Criminal Procedure, 1 which provides that the term of imprisonment for an offense committed while on parole shall "begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense" (emphasis added), repealed by implication §§ 34(2) and 38(5) of the corrections act, 2 insofar as §§ 34(2) and 38(5) provide that the Parole Board shall have jurisdiction over a prisoner serving consecutive terms when he has served the "total time of the added minimum terms " (emphasis added), and that § 7a(2) requires that a person sentenced to prison for a felony committed while on parole serve the maximum of the earlier sentence before the consecutive sentence for the crime committed while on parole begins to run. 3 We reverse.
We hold that the "remaining portion" clause of § 7a(2) requires the offender to serve at least the combined minimums of his sentences, plus whatever portion of the earlier sentence the Parole Board may, because the parolee violated the terms of parole, require him to serve.
Gregory Lee Young was convicted of armed robbery on July 14, 1983, and was sentenced to serve six to fifteen years in a state prison. Young was paroled on September 15, 1989.
While on parole, Young committed a breaking and entering, and was arrested. 4 This crime occurred less than a week before the scheduled conclusion of the two-year period of parole. Although aware of this arrest, the Department of Corrections discharged Young from parole on September 15, 1991.
Young was convicted of the breaking and entering on May 26, 1992. The Recorder's Court judge sentenced Young on June 10, 1992, to three and a half to ten years, and, at the time, questioned why the department had discharged Young from parole, thereby preventing consecutive sentencing. Asserting ancillary jurisdiction respecting the parole, the judge, at the prosecutor's request, issued a show cause order directing the department to explain why it had discharged Young from the armed robbery sentence although he had been arrested for a felony before the two-year parole had been completed.
At the hearing on the show cause order held August 7, 1992, the department stated that Young had been "mistakenly discharged," prompting the judge to vacate the Parole Board order discharging Young from parole, and then to resentence him to the same three and a half to ten years, adding that the sentence was to be served consecutively to Young's earlier armed robbery sentence.
Concurrently, the prosecutor and the department were litigating how much time Young would be required to serve for the earlier armed robbery conviction before he would begin serving the sentence for breaking and entering. Three statutes are involved:
§ 34(2) of the corrections act 5 provides that the Parole Board has jurisdiction to consider granting parole after a prisoner sentenced to consecutive terms has served the total of the minimum terms;
§ 38(5) of the corrections act 6 states that parolees who commit new crimes while on parole are subject to the added minimums rule set forth in § 34(2).
The prosecutor contends that the "remaining portion" clause of § 7a(2), 7 added by 1988 P.A. 48, requires parolees who commit crimes while on parole to first serve the maximum of the earlier sentence before beginning to serve the new sentence.
The prosecutor asked the department, pursuant to § 63 of the Administrative Procedures Act, 8 for a ruling determining when Young's new sentence would begin to run. When the department did not timely respond, the prosecutor filed a declaratory judgment action in Wayne Circuit Court. The circuit judge agreed with the prosecutor and granted the prosecutor summary disposition on January 6, 1993. 9
The Court of Appeals consolidated the civil and criminal appeals, and affirmed. 10 The majority held that § 7a(2) impliedly repealed §§ 34(2) and 38(5), and that the "remaining portion" language requires that a parolee convicted of another felony committed while on parole serve the maximum of the earlier sentence before beginning to serve the new sentence. 11 The majority also held that the ruling would apply prospectively from the date of the circuit judge's decision. 12
We agree with the Court of Appeals that the prosecutor had standing to commence this action on behalf of the people of the State of Michigan. 13 The prosecutor had a specific dispute with the department concerning the computation of Young's sentence, and asked a circuit court, pursuant to the Administrative Procedures Act, to resolve that dispute. 14
Because the prosecutor has standing under § 53, Young's argument that other legislation 15 precludes a civil action unless approved by the Wayne County Board of Commissioners need not be addressed.
Our analysis of the statutory provisions involved, and of the Court of Appeals decision, begins with the axiom that repeals by implication are disfavored. This Court presumes, in most circumstances, that if the Legislature had intended to repeal a statute or statutory provision, it would have done so explicitly. See, e.g., House Speaker v. State Administrative Bd., 441 Mich. 547, 562, 495 N.W.2d 539 (1993): " " 16
While this Court may find a repeal by implication when the conflict between two statutes is clear, or when a subsequent law was clearly intended to occupy the entire field covered by a prior enactment, "the burden on the party claiming an implied repeal is a heavy one[.]" House Speaker at 563, 495 N.W.2d 539. 17
The prosecutor has not met that "heavy" burden. The prosecutor's construction of § 7a(2) is not the only construction possible. When this Court can construe statutes, claimed to be in conflict, harmoniously, it must do so rather than find repeal by implication.
The guiding principle is, to be sure, that we are obliged to determine the will of the Legislature; but where the intent of the Legislature is claimed to be unclear, it is our duty to proceed on the assumption that the Legislature desired both statutes to continue in effect unless it manifestly appears that such a view is not reasonably plausible.
We turn to a consideration of the Legislature's intent in enacting § 7a(2), and whether that intent is compatible with the continued viability of §§ 34(2) and 38(5).
It is clear that the Legislature enacted § 7a(2) in response to People v. Walker, 143 Mich.App. 479, 372 N.W.2d 596 (1985). There the Court of Appeals held that a parolee was not subject to consecutive sentencing for a crime committed while on parole under § 7a as it read before the 1988 amendment adding subsection (2), 18 because he was not "incarcerated" at the time of the second offense.
The Legislature responded with the enactment of § 7a(2) to require parolees to be treated the same as prisoners who commit crimes while incarcerated or at large on escape. 19 While the legislative analysis did not specifically reference the Walker decision, that analysis shows that in enacting § 7a(2) the Legislature sought to eliminate the definitional problem found in Walker, and to thereby provide for the imposition of a consecutive sentence for a crime committed by a parolee who commits another offense---the same sentencing faced by "a prisoner, whether incarcerated or escaped," who commits another crime before the department has released him from prison. 20
The prosecutor contends that § 7a(2) must mean that parolees are required to serve the maximum of the earlier sentence because otherwise § 7a(2) would have "no effect." The predicate of this contention is that ordinarily a parolee has served at least the minimum of an earlier sentence before being released on parole, with the result that ordinarily the new sentence will be consecutive to nothing.
This contention ignores the Legislature's intent, as evidenced by the fact that the language of § 7a(2) closely copied the language of § 7a(1), to analogize a parolee who commits an offense while on parole to an inmate or escaped prisoner who commits another offense.
The department has consistently construed the language of § 7a(1)...
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