Trevor Kelly v. Parole Board

STATE OF MICHIGAN

COURT OF APPEALS

TREVOR KELLY, UNPUBLISHED
August 3, 2017
Petitioner-Appellee,

v No. 334960
Wayne Circuit Court
PAROLE BOARD, LC No. 16-006014-AA

Respondant-Appellant.

Before: FORT HOOD, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.

Respondent, the Michigan Parole Board (“the Board”), appeals by leave granted1 a
September 6, 2016 order of the Wayne Circuit Court reversing and remanding the Board’s
decision to revoke the petitioner’s parole. We affirm.

“[T]he Parole Board is an administrative body,” Morales v Mich Parole Bd, 260 Mich
App 29, 34; 676 NW2d 221 (2003), and “[p]arole revocation proceedings are contested cases
under the Administrative Procedures Act, [MCL 24.201 et seq.],” In re Parole of Bivings, 242
Mich App 363, 369; 619 NW2d 163 (2000). “This Court has limited review of a trial court’s
review of an agency determination.” Dana v American Youth Foundation, 257 Mich App 208,
211; 668 NW2d 174 (2003). “This Court reviews a lower court’s review of an administrative
decision to determine whether the lower court applied correct legal principles and whether it
misapprehended or misapplied the substantial evidence test to the agency’s factual findings,
which is essentially a clearly erroneous standard of review.” Vanzandt v State Employees
Retirement Sys, 266 Mich App 579, 585; 701 NW2d 214 (2005). “A finding is clearly erroneous
where, after reviewing the record, this Court is left with the definite and firm conviction that a
mistake has been made. Id. This Court reviews the circuit court’s legal conclusions de novo.
Davis v State Employees’ Retirement Bd, 272 Mich App 151, 152; 725 NW2d 56 (2006). “Great
deference is accorded to the circuit court’s review of the administrative agency’s factual
findings, however, substantially less deference, if any, is accorded to the circuit court’s
determinations on matters of law.” Mericka v Dep’t of Community Health, 283 Mich App 29,
36; 770 NW2d 24 (2009).

1
Kelly v Parole Board, unpublished order of the Court of Appeals, entered December 21, 2016
(Docket No. 334960).

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 I.
On appeal, the Board first alleges that the circuit court improperly applied a de novo
standard of review when it determined that the Board’s revocation was contrary to law. We
disagree.

“Whether a circuit court applied the appropriate standard of review is a question of law
that this Court reviews de novo.” Natural Resources Defense Council v Dep’t of Environmental
Quality, 300 Mich App 79, 87; 832 NW2d 288 (2013) (NRDC).

Although the circuit court did not explicitly state which standard of review it employed,
the Board asserts that the circuit court’s review was de novo because its decision was limited to
conclusions without legal reasoning, failed to address the decision of the administrative law
examiner (“ALE”), and invoked the circuit court’s own policy decisions regarding the cost of
incarceration to substitute for the discretion of the Board. The Board does not challenge any of
these actions as individual errors on the part of the circuit court, and we need not address them as
such. The Board argues only that these factors support the conclusion that the circuit court
exercised its review of the Board’s decision without granting the appropriate deference.

The Board asserts that the circuit court’s chosen standard of review was de novo, but
provides little argument for its assertion that the circuit court’s standard of review was wrong.
Therefore we could consider the issue to have been abandoned on appeal. DeGeorge v Warheit,
276 Mich App 587, 594-595; 741 NW2d 384 (2007) (“It is not enough for an appellant to simply
announce a position or assert an error in his or her brief and then leave it up to this Court to
discover and rationalize the basis for the claims, or unravel and elaborate the appellant’s
arguments, and then search for authority either to sustain or reject the appellant’s position.”) In
support of its argument, the Board simply quotes Article 6, § 28 of Michigan’s 1963
Constitution, which sets forth guidelines for the judicial review of administrative actions. Const
1963, art 6, § 28. Article 6, § 28 of the Michigan Constitution provides, in pertinent part:

This review shall include, as a minimum, the determination whether such final
decisions, findings, rulings and orders are authorized by law; and, in cases in
which a hearing is required, whether the same are supported by competent,
material and substantial evidence on the whole record. [Const 1963, art 6, § 28.]

Based on this provision, the Board suggests that the proper standard for judicial review of
administrative cases is simply whether the decision was supported by competent, material, and
substantial evidence on the whole record. However, the Board forgets that a circuit court’s
review of an agency decision includes evaluating whether the decision was “authorized by law.”
Indeed, the Administrative Procedures Act (“APA”), MCL 24.201 et seq., sets forth a number of
circumstances to support the finding that an agency decision was not authorized by law,
specifically directing trial courts:

(1) Except when a statute or the constitution provides for a different scope of
review, the court shall hold unlawful and set aside a decision or order of an
agency if substantial rights of the petitioner have been prejudiced because the
decision or order is any of the following:

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 (a) In violation of the constitution or a statute.

(b) In excess of the statutory authority or jurisdiction of the agency.

(c) Made upon unlawful procedure resulting in material prejudice to a party.

(d) Not supported by competent, material and substantial evidence on the whole
record.

(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.

(f) Affected by other substantial and material error of law.

(2) The court, as appropriate, may affirm, reverse or modify the decision or order
or remand the case for further proceedings. [MCL 24.306.]

“[T]he APA’s standards of review coincide with the authorized-by-law standard provided
in the [C]onstitution[.]” Northwestern Nat Cas Co v Ins Com’r, 231 Mich App 483, 489-490;
586 NW2d 563 (1998), citing MCL 24.306. The Michigan Constitution therefore sets forth the
minimum requirements, but the more specific guidelines enunciated in MCL 24.306 govern in a
contested agency case. Id at 490. Notably, the APA’s language is mandatory, requiring a trial
court to hold unlawful and set aside an agency decision contrary to law in any of the listed ways.
MCL 24.306(1). Contrary to the Board’s assertions on appeal, neither the Constitution nor the
APA’s guidelines permit an inference of necessary discretion to an agency decision when
matters of law are at issue. “The circuit court’s review of an administrative agency’s decision on
a matter of law is limited to determining whether the decision was authorized by law.” City of
Romulus v Mich Dep’t of Environmental Quality, 260 Mich App 54, 64; 678 NW2d 444 (2003).
However, “[a]n agency’s decision that is in violation of statute [or constitution], in excess of the
statutory authority or jurisdiction of the agency, made upon unlawful procedures resulting in
material prejudice, or is arbitrary and capricious, is a decision that is not authorized by law and
must be set aside.” Id. (quotations and citations omitted.)

The circuit court rested its ultimate decision on perceived legal errors, including
“significant due process issues,” concluding that the Board’s revocation decision was “contrary
to law.” Thus, the Board is incorrect when it argues that the trial court applied the wrong
standard of review.

II.
Next, the Board contends that the circuit court erred when it found that there was
insufficient evidence to support the ALE’s finding of constructive possession of a firearm. We
disagree.

Whether knowing intent to exert control is an element of constructive possession is a
legal question requiring the interpretation of administrative rules. This Court reviews de novo
the interpretation and application of unambiguous administrative rules. City of Romulus, 260
Mich App at 64-65. Regarding unambiguity, “this Court will generally defer to the construction
of the statute or administrative rule given by the agency charged with administering it.” Id. at
65. This Court does not defer to the administrative agency’s interpretation of a rule where the

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language of the rule is unambiguous, or when it is convinced that the agency’s interpretation is
clearly wrong. Id. at 65-66.

“The circuit court’s review of an administrative agency’s decision on a matter of law is
limited to determining whether the decision was authorized by law.” City of Romulus, 260 Mich
App at 64. MCL 24.306 states that a circuit court “shall hold unlawful and set aside a decision
or order of an agency if substantial rights of the petitioner have been prejudiced because the
decision or order is . . . [i]n violation of the constitution or a statute,” MCL 24.306(1)(a), or
“[a]ffected by other substantial and material error of law,” MCL 24.306(1)(f). Generally, a
lower court reviews an agency’s factual findings to determine if “ ‘the same are supported by
competent, material and substantial evidence on the whole record.’ ” Detroit Pub Sch v Conn,
308 Mich App 234, 245; 863 NW2d 373 (2014), quoting Const 1963, art 6, § 28. Substantial
evidence is defined as “that which a reasonable mind would accept as adequate to support a
decision, being more than a mere scintilla, but less than a preponderance of the evidence.”
Vanzandt, 266 Mich App at 584. On review, the circuit court may not invade the province of the
agency as fact-finder, resolve evidentiary disputes, or pass on witness credibility. Id. at 588.

The Legislature has prescribed a higher standard for the sufficiency of evidence to
support violations of parole, requiring through MCL 791.240a that a parole violation be
supported by a preponderance of the evidence before revocation of parole may be considered.
MCL 791.240a(8)-(10). Because this burden of proof is statutorily mandated, any parole
violation finding not supported by a preponderance of the evidence violates a statute and is
therefore not authorized by law. MCL 24.306(a); see Nat’l Wildlife Federation v Dep’t of
Environmental Quality (No. 2), 306 Mich App 369, 372-373; 856 NW2d 394 (2014). However,
when there is sufficient evidence, “the circuit court may not substitute its judgment for that of the
agency, even if the court might have reached a different result.” Vanzandt, 266 Mich App at
588. Whether the ALE’s parole violation finding was properly supported by a preponderance of
the evidence first turns on the appropriate definition of “constructive possession.”

“Principles of statutory interpretation apply to the construction of administrative rules.”
City of Romulus, 260 Mich App at 64-65. This Court’s goal is to ascertain and give effect to the
intent of the drafter of the administrative rule under review. Colucci v McMillin, 256 Mich App
88, 94; 662 NW2d 87 (2003). This first requires an examination of the plain language of the
rule. Id. An undefined statutory term is given its plain and ordinary meaning unless it is a term
of art with a unique legal meaning. Mich AFSCME Council 25 v Woodhaven–Brownstown Sch
Dist (AFSCME), 293 Mich App 143, 156; 809 NW2d 444 (2011); see also People v Flick, 487
Mich 1, 11; 790 NW2d 295 (2010), quoting People v Covelesky, 217 Mich 90, 100; 185 NW 770
(1921), superseded by statute on other grounds as recognized by People v Williams, 491 Mich
164, 171-173; 814 NW2d 270 (2012) (“A well recognized rule for construction of statutes is that
when words are adopted having a settled, definite and well known meaning at common law it is
to be assumed they are used with the sense and meaning which they had at common law unless a
contrary intent is plainly shown.”). When the language of an administrative rule is unambiguous
on its face, the drafter is presumed to have intended the meaning plainly expressed and further
judicial interpretation is not permitted. Colucci, 256 Mich App at 94. An administrative rule is
ambiguous “if it irreconcilably conflicts with another provision or is equally susceptible to more
than a single meaning.” AFSCME, 293 Mich App at 155.

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 We find that the disputed language in Conditions 07 and 08 related to possession —“you
must not . . . possess a firearm of any type,” and “you must not possess . . . any ammunition”—is
unambiguous on its face. The parole conditions do not contain an explicit definition of
“possession,” and we look to the plain and ordinary meaning of this commonly understood term.
Merriam-Webster’s Collegiate Dictionary defines “possess” as “to have possession of, take
possession of,” and “possession” as “the act of having or taking into control; control or
occupancy of property without regard to ownership.” Merriam-Webster’s Collegiate Dictionary,
Eleventh Edition (2014). “Possession” is also a legal term of art, but its legal meaning reflects its
common definition. Relying on Black’s Law Dictionary, our Supreme Court recently defined
“possession,” as “ ‘1.[t]he fact of having or holding property in one’s power; the exercise of
dominion over property. 2.[t]he right under which one may exercise control over something to
the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material
object.’ ” Flick, 487 Mich at 12, quoting Black’s Law Dictionary (7th ed). Similarly, this Court
recently defined “possession” as a term signifying dominion or right of control over an object
with knowledge of its presence and character. People v Norfleet, ___ Mich App ___, ___; ___
NW2d ___ (2016), slip op at 4, citing People v Nunez, 242 Mich App 610, 615; 619 NW2d 550
(2000). The Board has not put forth any other “common and accepted meaning” of the word
“possess,” and we are not aware of one. Indeed, both parties cite criminal law decisions to
support their definition of “constructive possession,” acknowledging that it is the legal meaning
of “possession” that controls in this case.

On appeal, the Board argues that to prove “possession,” evidence of mere knowledge and
proximity is sufficient. But this interpretation is contrary to both the common definition and
accepted legal meaning of “possession,” and simply cannot be accepted. It is true that under
Michigan law, possession can be either actual or constructive. People v March, 499 Mich 389,
415; 886 NW2d 396 (2016). Michigan Courts have consistently upheld that the basic
requirements for constructive possession are knowledge, power or accessibility, and intent to
exercise dominion or control. See, e.g., People v Minch, 493 Mich 87, 91-92; 825 NW2d 560
(2012) (stating that a person has constructive possession when he “knowingly has the power and
the intention at a given time to exercise dominion or control over a thing,” and when “the totality
of the circumstances indicates a sufficient nexus between [the] defendant and the contraband”);
Flick, 487 Mich at 14 (noting that although “[d]ominion and control over the object need not be
exclusive,” the essential question “is whether the defendant had dominion or control”); People v
Johnson, 293 Mich App 79, 83; 808 NW2d 815 (2011) (stating that constructive possession
requires “proximity to the article together with indicia of control”). Most recently, in March,
499 Mich at 415, our Supreme Court explained that “[a] person has constructive possession if he
knowingly has the power and the intention at a given time to exercise dominion or control over a
thing, either directly or through another person or persons[.]” (Quotations and citations omitted.)

To support its disposal of the “control” element, the Board cites only the “sufficient
nexus” test for constructive possession, often employed by our courts in cases involving
possession of narcotics. Stated simply, the test permits a finding of constructive possession
when “the totality of the circumstances indicates a sufficient nexus between the defendant and
the contraband.” People v Wolfe, 440 Mich 508, 521; 489 NW2d 748, amended 441 Mich 1201
(1992). This definition of constructive possession contains no explicit element of power or
control. However, the phrase “sufficient nexus” contains an implicit element of control the

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Board, quite simply, ignores. In adopting the sufficient nexus language from the Ninth Circuit,
the Michigan Supreme Court provided the following explanation:

“We have stated that constructive possession may be demonstrated by direct or
circumstantial evidence that the defendant had the power to dispose of the drug,
or ‘the ability to produce the drug . . . ,’ or that the defendant had the ‘exclusive
control or dominion over property on which narcotics are found . . . ’
Constructive possession may also be proven by the defendant’s participation in a
‘joint venture’ to possess a controlled substance. The ultimate question is
whether, viewing the evidence in a light most favorable to the government, the
evidence establishes a sufficient connection between the defendant and the
contraband to support the inference that the defendant exercised a dominion and
control over the substance.” [Wolfe, 440 Mich at 521-522, quoting United States
v Disla, 805 F2d 1340, 1350 (CA 9, 1986) (emphasis added).]

In other words, the “sufficient nexus” is a connection between an alleged possessor and
the item he is alleged to possess sufficient to support the inference that the alleged possessor
“exercised dominion and control” over the item. The sufficient nexus test, therefore, also
contains an element of control. Regardless of whether possession is actual or constructive,
neither the ordinary meaning of “possession” nor its legal counterpart encompasses knowing
proximity alone. A person’s mere presence near contraband does not prove knowing possession
or an ability to control it. See Wolfe, 440 Mich at 520 (reiterating the “well established”
principle “that a person’s presence, by itself, at a location where drugs are found is insufficient to
prove constructive possession.”) We conclude that the Board’s argument for constructive
possession is based on an inaccurate interpretation of that term, and the appropriate definition of
“constructive possession” for purposes of petitioner’s parole conditions is the one articulated
most recently by our Supreme Court in March, 99 Mich at 415, which explicitly incorporates the
original element of intent to exercise dominion or control and provides that a person “has
constructive possession if he knowingly has the power and the intention at a given time to
exercise dominion or control over a thing[.]”

The circuit court did not err when it concluded that the ALE’s finding of constructive
possession was contrary to law. The ALE clearly relied on an improper formulation of
constructive possession when it explicitly stated that it found the ownership of the firearms and
ammunition and the fact that the guns were inaccessible to petitioner “immaterial.” The ALE
justified this finding with an explanation that the parole condition did not distinguish between
“loose” firearms and those secured by a locking mechanism and that, in any case, petitioner had
access to the room in which the firearms were discovered. Regardless of whether the firearms
were loose or locked, the parole conditions specifically employed the word “possess.” It simply
cannot be said, based on this record, that the ALE’s conclusions support a finding of possession
of the firearms. Indeed, the ALE did not make any factual findings at all on the issue of
petitioner’s knowing power or intention to exercise dominion or control at any given time over
the firearms or ammunition.

The ALE’s incorrect interpretation of constructive possession and failure to consider the
requirements of constructive possession, on its own, is a mistake of law supporting the circuit
court’s reversal. MCL 24.306(1)(f). We also note that, on this record, the facts and

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circumstances presented at the revocation hearing do not support the inference that petitioner, by
a preponderance of the evidence, “knowingly [had] the power and the intention at a given time to
exercise dominion or control” over the firearms, the ammunition, or their cases. Knowing power
and intention to exercise dominion and control over an item requires more than simply noticing
an item, recognizing that it is prohibited, and leaving it alone. Flick, 487 Mich at 18-19.
Evidence of knowing power and intention to exercise control might consist of, among other
similar indicators, exclusive control over the premises where the prohibited item was found, an
attempt to conceal or destroy the prohibited item, knowing transport of the item, or extended
exposure to the item after determining that possession of the item is prohibited, Wolfe, 440 Mich
at 521-523. Such evidence does not exist here.

Although one of the firearms was discovered in an unlocked case, it was unloaded,
locked with a slide mechanism requiring a key, and according to the agent who discovered the
weapons, was “inoperable.” The other firearm was never seen by the parole agents during the
spot check. The agents found a locked hard case next to the unlocked gun case, but could not
open it without a key. They determined that the case contained a firearm through petitioner’s
suggestion, as petitioner told them he had once seen a video of his brother, Walter Kelly, with an
AR-15 on Facebook and thought that the hard case might contain that weapon. There was no
evidence showing that petitioner had any reasonable means of accessing the weapons. Indeed,
the agents admitted that they did not search the house for keys after finding that petitioner did
not have any of the keys on his personal key ring. Walter testified at the parole revocation
hearing that he had the only keys with him in New York. Petitioner immediately informed the
agents that the items belonged to his brother. Indeed, there was no evidence to prove that
petitioner had even seen one of the weapons, the AR-15, outside of a Facebook video. The ALE
specifically found that there was no evidence to show that petitioner ever attempted, or even
intended, to utilize any of the weapons or ammunition. Further, petitioner testified that he
noticed the locked cases under Walter’s bed while he was looking for clothes, and simply left the
cases there. Petitioner’s statements in this regard were not disputed.

Undisputedly, the ALE did find evidence to show that petitioner had access to the
bedroom in which the weapons and ammunition were found. Petitioner led the agents to the
bedroom when they asked him to see “his room,” he had several items stored in the room, and
while he later told the agents that the bedroom belonged to Walter, he admitted that he had
access to the bedroom and slept there sometimes. The ALE incorrectly assumed that because
petitioner had access to and ability to control the bedroom and its contents, he constructively
possessed all of the contents of the bedroom. Again, to constructively possess an item, one must
knowingly have the power and the intention at a given time to exercise dominion or control over
a thing. The Board repeatedly insists that because the weapons and ammunition were found in
“petitioner’s bedroom” he must have possessed them. But the ALE declined to specifically find
that the bedroom containing the weapons, which petitioner’s mother insisted was Walter’s,
belonged to petitioner, and, in any case, while the location of items in one’s personal living space
is strong evidence of knowing intent to control those items, it is not dispositive. The ALE failed
to make any findings of fact to support, by a preponderance of the evidence, the inference that
petitioner intended to exercise dominion or control over the bedroom or any of its contents,
including the weapons and ammunition. Petitioner’s violation of parole was not proven by a
preponderance of the evidence, or even by competent, material, and substantial evidence. We
remand to the Board for a new hearing on the matter.

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 III.
Next, the Board argues that the circuit court erred when it concluded that the Board’s
parole revocation was in violation of petitioner’s due process right to fair notice of prohibited
conduct. We disagree.

Whether petitioner was given adequate notice of prohibited conduct to satisfy his right to
due process is an issue of constitutional law that this Court also reviews de novo. In re Parole of
Hill, 298 Mich App 404, 410; 827 NW2d 407 (2012).

On appeal to the circuit court, petitioner argued that the language of Conditions 07 and 08
regarding prohibitions on possession failed to provide adequate notice that presence in a home
where lawfully owned firearms were kept constituted a parole violation. Counsel for the Board
emphasized language in the conditions prohibiting petitioner’s being in the company of anyone
known to possess prohibited items and argued that it could not have been clearer that to possess
or even be in the company of someone with firearms, lawfully owned or not, was against the
terms of petitioner’s parole, an argument the Board repeats on appeal. In response, petitioner
argued that parolees have a due process right to notice of prohibited conduct and that if the
prohibition on “possession” required only proximity to support a violation, petitioner had a right
to be informed of such. The circuit court agreed, concluding that the Board’s parole revocation
decision was contrary to law because petitioner “was never properly made aware that mere
presence in a home or [sic, of] a firearm lawfully owned by another subjected him to five years
in prison.”

There is no question that petitioner had a due process right to notice of prohibited
conduct. A prisoner has no due process interest in the potential for parole. Jones v Dep’t of
Corrections, 468 Mich 646, 651; 664 NW2d 717 (2003) (“A prisoner enjoys no constitutional or
inherent right to be conditionally released from a validly imposed sentence.”); see also Morales,
260 Mich App at 48, and Greenholtz v Inmates of Nebraska Penal & Correctional Complex, 442
US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979). However, although “matters of parole lie solely
within the broad discretion of the [Board],” Jones, 468 Mich at 652; see also Hopkins v Parole
Bd, 237 Mich App 629, 637; 604 NW2d 686 (1999); MCL 791.234(11), that discretion is clearly
restricted by legislative limitations, People v Idziak, 484 Mich 549, 584; 773 NW2d 616 (2009)
(“An agency such as the [Michigan Department of Corrections] has no inherent authority, and
the limitations of its power and authority must be measured by the statutory enactments from
which it is created,” internal quotation marks omitted). For example, by statute, the Board “has
the discretionary authority to grant or deny parole, MCL 791.233, . . . [and] if a parolee violates
the terms of his parole, the Parole Board has the authority to revoke parole[,] MCL 791.240a.”
Id. at 584-585. However, once parole is granted and the prisoner is released from prison on
parolee status, that parolee gains a protected interest in continued liberty. In re Parole of
Haeger, 294 Mich App 549, 574; 813 NW2d 313 (2011). “[L]imited due process requirements,
including notice and the opportunity to be heard, apply to the loss of liberty occasioned by parole
revocation.” Jones, 468 Mich at 652.

Once a prisoner is released on parole, the Board retains discretion to revoke parole only
for cause and in accordance with statutorily proscribed procedural guidelines. MCL 791.240a;
Jones, 468 Mich at 652-653. In part, these proscribed procedural guidelines require proof that
petitioner violated a condition of his parole by a preponderance of evidence. MCL 791.241a.

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They also require that petitioner be given adequate notice of conduct that may be considered a
violation of parole. Under Mich Admin Code, R 791.7730, a rule promulgated by the Board
pursuant to its authority to set procedural guidelines for parole revocation under MCL 791.206:

Each order of parole shall set the parole term and shall contain conditions of
parole that are reasonably necessary to assist a parolee to lead a law-abiding life.
There shall be a reasonable relationship between parole conditions and both the
prisoner’s previous conduct and present capabilities. All conditions shall be
sufficiently specific to guide both supervision and conduct. [Mich Admin Code,
R 791.7730(1).]

The language of the administrative rule closely tracks language used by our courts and
the United States Supreme Court when considering challenges to the adequacy of enactments to
provide notice of prohibited behavior. “It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly defined.” Grayned v City of Rockford, 408
US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972). “ ‘In order to pass constitutional
muster, a penal statute must define the criminal offense ‘with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.’ ” People v Boomer, 250 Mich App 534, 538-539;
655 NW2d 255 (2002), quoting People v Lino, 447 Mich 567, 575; 527 NW2d 434 (1994).

Petitioner’s argument that the disputed parole condition failed to provide adequate notice
under the Due Process Clause is an assertion that the parole condition is unconstitutionally
vague. A constitutional challenge to an enactment based on its failure to provide adequate notice
of prohibited conduct is brought under the Due Process Clause of the Fourteenth Amendment of
the United States Constitution. Lino, 447 Mich at 575 n 2. “[T]here are three ways in which an
enactment may be found unconstitutionally vague: (1) failure to provide fair notice of what
conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3)
being overbroad and impinging on First Amendment freedoms.” People of City of Grand Rapids
v Gasper, 314 Mich App 528, 537; 888 NW2d 116 (2016). “Vagueness challenges that do not
implicate First Amendment freedoms are examined in light of the facts of each particular case.”
Lino, 447 Mich at 575.

The parole conditions at issue here are not unconstitutionally vague on their face. As the
Board argues, they very clearly prohibit ownership or possession of both firearms and related
implements, and presence in the company of anyone in possession of such items. The words, as
used, are not ambiguous. Possession is a legal term with a commonly understood meaning. As
the Board correctly argues, “it could not have been made any clearer to [petitioner] that to
possess or even be in the company of someone with firearms, lawfully owned or not, was against
the terms of his parole.” Employing the commonly understood definition of constructive
possession, as outlined above, resolves any potential notice issues.

In this case, the issue is whether the parole conditions are vague as applied to petitioner.
The answer turns on the practical definition of constructive possession. The Board argues that
constructive possession includes simple knowledge of and proximity to weapons. The Board
then suggests that petitioner should have deduced, from the language of the conditions, that he
was prohibited from simply being around prohibited items.

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 We find that if the parole conditions at issue were intended to dispense with the
commonly understood legal definition of constructive possession and cover the conduct argued
by the Board to constitute a parole violation, they are unconstitutionally vague. Again,
constructive possession requires intent to exercise dominion or control over an item, and mere
knowledge and proximity are not enough to show legal “possession.” If the petitioner’s conduct
herebeing present in a home where firearms lawfully owned by another resident are storedis
prohibited by the parole conditions, it simply cannot be said that the parole conditions were
written “with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”
There is no language in either Condition 07 or Condition 08 “sufficiently specific to guide” a
parolee’s conduct if the parolee is required to avoid any situation that would place him within
knowing proximity to firearms or ammunition, or to guide agents in appropriate supervision.
Counsel for the Board conceded in the lower court that the Board would simply have to exercise
its discretion in each case to prevent the absurd situations which might result if the conditions
were construed to prohibit mere knowing proximity to a firearm. The Board essentially admitted
that the conditions, if construed without regard to plain or legal meaning of the word
“possession,” were ripe for arbitrary enforcement. The ALE’s conclusion that petitioner violated
his parole was therefore based on an interpretation of Conditions 07 and 08 that rendered them
unconstitutionally vague and in violation of the Board’s own administrative rules.

As previously discussed, “[t]he circuit court’s review of an administrative agency’s
decision on a matter of law is limited to determining whether the decision was authorized by
law.” City of Romulus, 260 Mich App at 64. Relevant here, MCL 24.306(1)(a) provides that a
circuit court “shall hold unlawful and set aside a decision or order of an agency if substantial
rights of the petitioner have been prejudiced because the decision or order is . . . [i]n violation of
the constitution or a statute.” The circuit court therefore accurately applied the law when it
reversed the Board’s revocation decision and remanded for further proceedings after finding that
the language of Conditions 07 and 08 was unconstitutionally vague as applied to petitioner.

IV.
Next, the Board argues that the circuit court erred when it found that the ALE’s failure to
consider the “momentary innocent possession defense” was an error of law requiring reversal.
On this, we agree.

“The circuit court’s review of an administrative agency’s decision on a matter of law is
limited to determining whether the decision was authorized by law.” City of Romulus, 260 Mich
App at 64. Under MCL 24.306(1)(f), a circuit court “shall hold unlawful and set aside a decision
or order of an agency if substantial rights of the petitioner have been prejudiced because the
decision or order is . . . [a]ffected by other substantial and material error of law.”

Finding that the ALE made an error of law when it failed to consider the defense of
momentary innocent possession, the circuit court concluded that the ALE’s decision regarding
petitioner’s alleged parole violation was unauthorized. Although the circuit court applied the
appropriate standard of review, the circuit court’s ultimate finding was based on its own
erroneous conclusion that petitioner was entitled to a “momentary or innocent possession”
defense. This Court adopted a limited a “momentary or brief possession of a weapon” defense to
the general intent crime of carrying a concealed weapon (CCW), MCL 750.227, when the

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momentary possession resulted from “disarming of a wrongful possessor” and “the possessor had
the intention of delivering the weapon to the police at the earliest possible time,” in the 1986 case
of People v Coffey, 153 Mich App 311, 315; 395 NW2d 250 (1986), overruled by People v
Hernandez-Garcia, 477 Mich 1039, 1040; 728 NW2d 406 (2007). Coffey was explicitly
overruled in Hernandez-Garcia, 477 Mich at 1040, in which our Supreme Court held that
“momentary innocent possession of a concealed weapon is not a defense to a charge of [CCW.]”
More recently, in holding that the momentary innocent possession defense was also an invalid
affirmative defense to a charge of felon in possession of a firearm, MCL 750.224f, our Supreme
Court cited Hernandez-Garcia and noted that the momentary innocent possession defense was
“now defunct.” People v Dupree, 486 Mich 693, 711; 788 NW2d 399 (2010).

Because Michigan law does not recognize the momentary innocent possession defense as
a valid affirmative defense, the circuit court erred when it concluded that the ALE’s failure to
consider the defense was a violation of the law. The circuit court therefore failed to apply the
correct legal principles in this regard. Because the circuit court’s reversal of the parole
revocation decision as unauthorized was proper for reasons already discussed, supra, the trial
court’s error in this regard is harmless and reversal is not required. See MCR 2.613(A); see also
NRDC, 300 Mich App at 89 (explaining that this Court will not overturn a circuit court’s order
on appeal from an administrative agency decision on the basis of a harmless error.

V.
Next, appellant argues that the circuit court erred when it determined that the ALE’s
refusal to allow petitioner’s presentation of witness testimony at the preliminary hearing violated
petitioner’s right to due process and required reversal. We agree.

Petitioner was immediately incarcerated after his arrest for alleged probation violations.
A preliminary examination was held 11 days after his arrest. In his summary of the proceedings,
the presiding ALE noted that petitioner’s mother and one of petitioner’s brothers, Roy
Mackenzie, appeared to testify on petitioner’s behalf but “their testimony was not allowed.” At
the circuit court hearing on appeal from petitioner’s ultimate parole revocation, the circuit court
concluded that the examiner’s decision to prohibit testimony from petitioner’s witnesses was
contrary to law. The circuit court found that the witnesses’ intended testimony was relevant, and
that the examiner’s refusal to hear it deprived petitioner of his due process right to present
relevant evidence.

MCL 791.239a sets forth the procedural requirements for the Board to follow in cases of
suspected parole violations. In pertinent part, MCL 791.239a provides:

(1) Within 10 days after an arrest for an alleged violation of parole, the parolee
shall be entitled to a preliminary hearing to determine whether there is probable
cause to believe that the conditions of parole have been violated or a fact-finding
hearing held pursuant to [MCL 791.240a].

(2) Prior to the preliminary hearing, the accused parolee shall be given written
notice of the charges, time, place, and purpose of the preliminary hearing.

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 (3) At the preliminary hearing, the accused parolee is entitled to the following
rights:

(a) Disclosure of the evidence against him or her.

(b) The right to testify and present relevant witnesses and documentary evidence.

(c) The right to confront and cross-examine adverse witnesses unless the person
conducting the preliminary hearing finds on the record that a witness may be
subjected to risk of harm if his or her identity is revealed. [MCL 791.239a,
citation footnote omitted.]

Under the plain language of the statute, petitioner had a right to present relevant witnesses at the
preliminary hearing, and the examiner deprived petitioner of this right.

The circuit court applied the wrong legal principles to the extent it considered the
examiner’s error an independent basis for reversal of the parole revocation decision. Reversal of
an agency decision or order under the APA requires that the “substantial rights of the petitioner
have been prejudiced” because of the agency’s unlawful action. MCL 24.306(1). Petitioner has
not addressed this issue on appeal, and has not presented any evidence to support a finding that
his substantial rights were affected by the examiner’s erroneous prohibition of witness testimony
at the preliminary hearing. Nor is this Court able to find any evidence in the lower court record
to support such a conclusion. Both of the witnesses that were denied the opportunity to testify at
the preliminary hearing were permitted to testify at the full parole violation hearing. The circuit
court therefore lacked the authority to reverse the Board’s parole revocation decision on this
ground.

As previously discussed, the circuit court’s reversal of the parole revocation decision as
unauthorized by law was otherwise proper. Thus, the circuit court’s error in this regard is
harmless and reversal is not required. See MCR 2.613(A); see also NRDC, 300 Mich App at 89.

VI.

Finally, the Board argues that the circuit court erred when it reversed the Board’s
decision after determining that the Board’s imposition of a mandatory 60-month continuance in
cases of firearm possession without consideration of mitigating circumstances constituted an
abuse of discretion. We disagree.

Under MCL 24.306(1)(a), a circuit court “shall hold unlawful and set aside a decision or
order of an agency if substantial rights of the petitioner have been prejudiced because the
decision or order is . . . [i]n violation of the constitution or a statute,” and under MCL 24.306(e),
when the decision is “[a]rbitrary, capricious or clearly an abuse or unwarranted exercise of
discretion.” At the circuit court hearing, petitioner argued that the Board’s application of an
automatic 60-month continuance, without considering mitigating circumstances, was a violation
of petitioner’s right to due process. Neither this Court nor the Michigan Supreme Court has
considered a challenge such as the one presented here. On appeal, the Board argues that the
circuit court’s conclusion was erroneous because (1) the Board no longer applies a zero tolerance

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policy in firearm possession cases, and (2) there is no evidence to show that the Board failed to
consider mitigating circumstances in petitioner’s case.

“There is scant published caselaw analyzing the multipart mechanics of Michigan’s
current parole process.” In re Elias, 294 Mich App 507, 510; 811 NW2d 541 (2011).
“Consequently, circuit courts lack useful precedent when called upon to review the propriety of a
parole decision.” Id. at 510-511. A brief summary of the procedure is useful. “The Legislature
created the Parole Board as part of the Michigan Department of Corrections (DOC).” Id. at 411,
citing MCL 791.231a. Pursuant to a Legislative mandate, the DOC promulgated regulations
outlining factors for the Board to consider before granting parole. Id. at 512-515; see Mich
Admin Code, R 791.7715-7716. The Legislature, through MCL 791.233e(2) and (3) enumerated
a list of both mandatory and permissive factors for the Board to consider when developing parole
guidelines, id. at 512-515; see Mich Admin Code, R 791.7715-7716, and provided through MCL
791.238 that “[e]ach prisoner on parole shall remain in the legal custody and under the control of
the department.” When a parolee is suspected to be in violation of his parole, he

is entitled to a preliminary probable cause hearing within ten days after arrest for
parole violation, MCL 791.239a(1), and is entitled to a fact-finding hearing before
a member of the Parole Board or a hearing officer within forty-five days of return
to prison. MCL 791.240a(1). The parolee is entitled to be represented by counsel
at the parole revocation hearing. MCL 791.240a(2). Additionally, the parolee is
entitled to hear the evidence against the parolee, to testify and present evidence,
and to cross-examine witnesses. Id. A parole violation must be established by a
preponderance of the evidence. MCL 791.240a(5).

After the hearing, the hearing officer prepares a report and recommendation for
disposition by the Parole Board. MCL 791.240a(5). The board then enters an
order either rescinding parole or reinstating it. MCL 791.41. A rescinding order
also sets the length of time before the offender will again be eligible for parole.
That period can range from one day to the maximum sentence imposed for the
original offense, in the discretion of the board. MCL 791.238(2). [In re Wayne
Co Prosecutor, 232 Mich App 482, 485-486; 591 NW2d 359 (1998) (citations
altered).]

The statutory structure makes clear that a parolee’s freedom is a limited freedom, 2 and with only
limited exceptions, matters of parole lie within the broad discretion of the Board. Jones, 468
Mich at 652. The Board’s discretion is not, however, unlimited. “[T]he Legislature has clearly
imposed certain statutory restrictions on the Board’s exercise of its discretion.” In re Elias, 294
Mich App at 521-522. By statute, once a prisoner is released on parole, the Board retains

2
See Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), 408 US at 480:
[T]he revocation of parole is not part of a criminal prosecution and thus the full
panoply of rights due a defendant in such a proceeding does not apply to parole
revocations . . . Revocation deprives an individual, not of the absolute liberty to
which every citizen is entitled, but only of the conditional liberty properly
dependent on observance of special parole restrictions. [Citation omitted.]

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discretion to revoke parole only “for cause and in accordance with statutorily proscribed
procedural guidelines.” Parole of Hill, 298 Mich App at 411, citing Jones, 468 Mich at 652-653
(emphasis added). These procedural guidelines guarantee defendant a right, at his revocation
hearing, “[t]o present other relevant evidence in mitigation of the charges.” Our Supreme Court
has acknowledged that the requirements, outlined in MCL 791.240a, “serve to protect the due
process interests . . . of a parolee whose liberty is at stake by virtue of a charge of parole
violation,” outlined by the United States Supreme Court in Id. Jones, 468 Mich at 652.

In Morrissey, 408 US at 479-480, 484-487, the Supreme Court delineated a two-step
process for parole revocations, requiring first a preliminary hearing near the time of arrest to
determine whether probable cause supports the inference that the parolee violated the conditions
of his parole. Once probable cause has been found, the Court held that due process required a
comprehensive revocation hearing, at which the Board would resolve disputed facts and decide
“whether the facts as determined warrant revocation.” Morrissey, 408 US at 488. Importantly,
the Morrissey Court explained that at this second hearing, “[t]he parolee must have an
opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did,
that circumstances in mitigation suggest that the violation does not warrant revocation.” Id.

Although not binding on this Court, the Sixth Circuit’s opinion in Preston v Piggman,
496 F2d 270 (CA 6, 1974), provides an informative overview of Morrissey and associated
United States Supreme Court decisions:

Parole is no longer a state of administrative grace that may be summarily and
arbitrarily ended at the whim of a parole board. Gagnon v Scarpelli, 411 US 778,
782 n 4; 93 S Ct 1756; 36 L Ed 2d 656 (1973)[, superseded by statute on
unrelated grounds as stated in Baldwin v Benson, 584 F2d 953 (CA 10, 1978)].
Rather, a parolee has substantial liberty. Although such liberty is not the
equivalent of that enjoyed by an ordinary citizen, it is greater than that enjoyed by
one incarcerated for a crime. However this liberty may be restricted, it may not
be terminated without the rudiments of procedural due process. Morrissey, 408
US 471. What is at stake is not simply technical legal notions of what steps must
be followed in a revocation hearing. Instead, there is involved “a profound
attitude of fairness between man and man, and more particularly between the
individual and government . . . ” Joint Anti-Fascist Refugee Committee v
McGrath, 341 US 123, 162-163; 71 S Ct 624, 643; 95 L Ed 817 (1951)
(FRANKFURTER, J., concurring). [Piggman, 496 F2d at 273 (citations altered).]

Relying in part on a Seventh Circuit Court opinion holding that “[b]reach of parole conditions is
a necessary but not sufficient ground for parole revocation, for the board is required to determine
whether the violator is still a good parole risk, and he may bring extenuating circumstances to the
board’s attention,” Caton v Smith, 486 F2d 733, 735 (CA 7, 1973), the Piggman Court concluded
that “due process requires that a parolee who has admitted violating a condition of his parole is
still entitled to present evidence in mitigation. In consequence, the Board must consider and
evaluate the mitigating circumstances before it decides whether revocation is appropriate,”
Piggman, 486 F2d at 274.

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 Piggman and Caton, while dated, are highly persuasive. They support the otherwise
logical conclusion that if a parolee has a due process right to present mitigating evidence, the
right necessarily includes the right to have the Board actually consider the mitigating evidence
presented. This conclusion is also supported by the concept of fundamental fairness, which was
clearly at the heart of the Morrissey Court’s decision:

The parolee is not the only one who has a stake in his conditional liberty. Society
has a stake in whatever may be the chance of restoring him to normal and useful
life within the law. Society thus has an interest in not having parole revoked
because of erroneous information or because of an erroneous evaluation of the
need to revoke parole, given the breach of parole conditions. And society has a
further interest in treating the parolee with basic fairness: fair treatment in parole
revocations will enhance the chance of rehabilitation by avoiding reactions to
arbitrariness. [Morrissey, 408 US at 484.]

A strictly imposed 60-month continuance in cases involving revocation for firearms possession
would completely dispense with the Board’s discretion in such cases. This limitation of
discretion cannot be reconciled with the mandates of Morrissey and subsequent related decisions
of the Supreme Court. Parolees have a due process right to have a Parole Board consider the
evidence in mitigation. A complete prohibition on the Board’s ability to hear and actually
consider such evidence constitutes a violation of due process.

In its reply brief, the Board concedes the existence of a zero tolerance policy in cases of
firearms-related parole violations, which mandates a five-year continuance regardless of the
factual circumstances surrounding the violation. However, the Board insists that “based on
information and belief, [the Board] hasn’t imposed the strict, zero tolerance, near-automatic 60-
month prison continuances for parolee firearms violations since Governor Granholm’s
administration,” and the Board now has the discretion to consider anywhere from 24- to 60-
month prison continuances. Although the Board contends that the former “automatic” five-year
policy is no longer in effect, there has been no factual support for that contention presented to
this Court. Nor was it raised in the lower court. Indeed, substantial evidence in the lower court
record supports the inference that the Board continues to apply its unwritten “zero tolerance”
policy in cases of firearms-related parole violations, and that they applied it in petitioner’s case.

Perhaps most important is the lack of any reasoning in support of the 60-month
continuance for petitioner’s violation. Although the Board attached the ALE’s parole revocation
hearing summary to their notice of revocation, they provided no explanation to support their
decision, save for a boilerplate statement that “[the Board] lacks reasonable assurance that the
prisoner will not become a menace to society or to the public safety and revocation of parole is
warranted[.]” Although not necessarily required to do so,3 the Board failed to provide a specific
explanation for the Board’s significant departure from the 36-month continuance recommended
by the ALE, despite the fact that the Board’s continuance was within the permissible realm. The
3
The Board is only required to provide a general “written statement of the findings of fact and
the reasons for the [revocation] determination within 60 days after the paroled prisoner has been
returned or is available for return to a state correctional facility.” MCL 791.240a(6); Jones, 468
Mich at 660 n 2.

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departure seems especially arbitrary, because the ALE informed the Board that she was
recommending the continuance only because it was a firearms-related offense, and stated that,
“The ALE does not object to the Board to [sic] exercising its discretion regarding the length of a
continuance given [petitioner’s] positive parole adjustment and the fact that he was forthcoming
when questioned about the presence of weapons[.]” We find that the departure without
explanation is evidence of a standard five-year continuance in cases involving firearms
possession, and evidences the Board’s failure to contemplate the mitigating circumstances
presented here.

Further, while the Board now insists that the zero tolerance policy was eliminated after
Governor Jennifer Granholm’s tenure, the Board’s counsel conceded the continued application of
the policy at least twice at the circuit court hearing. Additionally, the MDOC refers to the zero
tolerance policy in several of its own documents. Upon receiving notification of his charges,
petitioner signed a notice of his rights which included the following language: “The Parole and
Commutation Board will make a final determination on the violations which may range from re-
parole to a 24 month continuance. However, the Parole Board may issue a 60 month
continuance in the event the violation of parole involves firearm [sic].” In an MDOC document
titled “Parole Violation Worksheet and Decision,” both a parole agent and her supervisor
recommended petitioner’s return for a revocation hearing after the preliminary examination “due
to zero tolerance policy,” “because probable cause was found for weapons.” “It is often the case
that an agency’s policies and practices will indicate the manner in which it is exercising its
discretion.” Garner v Jones, 529 US 244, 256-57; 120 S Ct 1362; 146 L Ed 2d 236 (2000).
“Absent a demonstration to the contrary, we presume the Board follows its statutory commands
and internal policies in fulfilling its obligations.” Id.

Equally telling is the Board’s unanimous refusal to reconsider the 60-month continuance
after Administrator Daphne Johnson at the Office of Legal Affairs suggested that, based on the
facts of petitioner’s violation, “the Parole Board may want to reconsider [petitioner] for parole
prior to expiration of the 60[-]month continuance provided his brother removes all weapons from
his mother’s residence and provided that [petitioner] receives adequate medical care in the
community.”

As the appellant, the Board “bore the burden of furnishing the reviewing court with a
record to verify the factual basis for any argument upon which reversal was predicated.” People
v Elston, 462 Mich 751, 762; 614 NW2d 595 (2000). An unsupported assertion in a reply brief
is not enough to rebut the evidence in the lower court record or to prove that the circuit court was
mistaken about the Board’s imposition of an “automatic” five year penalty.

VII.
The Board also argues that the circuit court erred when it determined that the Board
imposed an arbitrary penalty and abused its discretion when it ordered a 60-month continuance
in petitioner’s case, because there is no evidence to show that the Board failed to consider the
mitigating circumstances presented to the ALE and attached to the Board’s notice of decision.

“A ruling is arbitrary and capricious when it lacks an adequate determining principle,
when it reflects an absence of consideration or adjustment with reference to principles,
circumstances, or significance, or when it is freakish or whimsical.” Wescott v Civil Serv Comm,

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298 Mich App 158, 162; 825 NW2d 674 (2012). “An abuse of discretion occurs when the trial
court’s decision is outside the range of reasonable and principled outcomes.” Kalaj v Kahn, 295
Mich App 420, 425; 820 NW2d 223 (2012). “[F]ailure to exercise discretion when called on to
do so constitutes an abdication and hence an abuse of discretion.” Loutts v Loutts, 298 Mich
App 21, 24; 826 NW2d 152 (2012).

There is no evidence to support the inference that the Board considered the mitigating
circumstances presented here. Petitioner is partially paralyzed, partially blind, and has
undergone significant brain reconstruction to address a gunshot wound to the head. He takes
medication for ongoing seizures, and his memory is so poor that his mother has to lay out the
medication for him and remind him to eat. This was petitioner’s first parole violation, and the
ALE noted that his adjustment was “otherwise positive.” He had attended mental health
appointments, taken his medication as prescribed, complied with his curfew, and passed his drug
tests. He was innocently forthcoming regarding the presence of firearms in his home. Neither
firearm was accessible to petitioner, as one was in a locked case and the other rendered
“inoperable” by a slide lock. As the ALE noted, there is “nothing in evidence which suggests
that [petitioner] ever utilized the weapons for any purpose.” Other than the agent’s belief that
the room where the weapons were found was petitioner’s bedroom, there is no evidence at all of
aggravating circumstances in this case. It is simply impossible, given the evidence in the record,
to believe that the Board gave proper consideration to the factual circumstances presented. The
circuit court correctly applied the law and found the Board’s decision both arbitrary and an abuse
of discretion.

Affirmed.

/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh
/s/ Amy Ronayne Krause

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