People v. Idziak

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

FILED JULY 31, 2009

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 137301

PATRICK LAWRENCE IDZIAK,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

In this case, we consider whether a parolee who is convicted and sentenced

to a term of imprisonment for a felony committed while on parole is entitled,

under Michigan’s jail credit statute, MCL 769.11b, to credit for time served in jail

after his arrest on the new offense and before sentencing for that offense. We hold

that, under MCL 791.238(2), the parolee resumes serving his earlier sentence on

the date he is arrested for the new criminal offense. As long as time remains on

the parolee’s earlier sentence, he remains incarcerated, regardless of his eligibility

for bond or his ability to furnish it. Since the parolee is not being held in jail

“because of being denied or unable to furnish bond,” the jail credit statute does not

apply.
 Further, a sentencing court lacks common law discretion to grant credit

against a parolee’s new minimum sentence in contravention of the statutory

scheme. Finally, the denial of credit against a new minimum sentence does not

violate the double jeopardy clauses or the equal protection clauses of the United

States or Michigan constitutions. US Const, Am V and XIV; Const 1963, art 1, §§

2 and 15.

I. FACTS AND PROCEDURAL HISTORY

About 3:00 a.m. on November 23, 2006, while defendant was on parole,1 he

confronted Brenda Young, an employee of the Bow Tie Tavern in Alpine

Township, Kent County, as she was closing the bar for the night. She was the

only person still present in the bar. Defendant approached Young with a shotgun

when she opened the back door to take out the trash. He questioned her about the

keys to the jukebox, pool table, cigarette machine, and lottery machine. She told

him that she only had the key to the lottery machine. She opened the machine,

surrendering the cash inside. Defendant pried open the jukebox with a crowbar

and took the cash inside. He then tied up Young and stole her car. She freed

herself about 40 minutes later and called the police. An investigation revealed

defendant’s involvement in the crime, and police arrested him on November 28,

2006.

1
Defendant’s lengthy criminal history includes 13 prior felony convictions.
He was granted parole on May 10, 2006.
2
 Defendant pleaded guilty to armed robbery, MCL 750.529, and possession

of a firearm during the commission of a felony, MCL 750.227b. On March 6,

2007, the court sentenced him to a term of 12 to 50 years’ imprisonment for the

armed robbery conviction and the mandatory consecutive two-year term for the

felony-firearm conviction. The sentencing court did not grant defendant credit

against the new sentences for the 98 days he spent in jail between his arrest and

sentencing.

Defendant’s appellate counsel moved for postjudgment relief, arguing that

jail credit was mandatory under MCL 769.11b and, in the alternative, that the

court had discretion to award credit. Citing People v Seiders, 262 Mich App 702;

686 NW2d 821 (2004), and People v Filip, 278 Mich App 635; 754 NW2d 660

(2008), in which the Court of Appeals held that parole detainees are not entitled to

jail credit under MCL 769.11b, the sentencing court denied the motion. The court

also ruled that it lacked common law discretion to award credit because MCL

768.7a(2) mandates consecutive sentencing for parolees who commit new felonies

while on parole. The Court of Appeals denied defendant’s application for leave to

appeal for lack of merit. People v Idziak, unpublished order of the Court of

Appeals, issued July 25, 2008 (Docket No. 285975).

II. STANDARD OF REVIEW

This Court reviews questions of statutory interpretation de novo. People v

Stewart, 472 Mich 624, 631; 698 NW2d 340 (2005). We also review

3
constitutional issues de novo. Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767

(2003).

III. ANALYSIS

A. INTRODUCTION

The issue of appropriate jail credit arises when a person is convicted of a

crime and sentenced to imprisonment, granted parole, and then convicted and

sentenced to prison for a new felony committed while on parole. After arrest, the

parolee serves time in jail awaiting disposition of the new criminal charges. The

issue is whether, after conviction of the new criminal charges, the parolee receives

credit against his new minimum sentence for the time he served in jail. This is a

significant problem because the prisoner’s new parole eligibility date is affected.

If defendant here is awarded credit against his new minimum sentence for the 98

days he served in jail, he will become eligible for parole 98 days earlier than if he

is not granted such credit.

B. THE DEPARTMENT OF CORRECTIONS AND THE PAROLE BOARD

The Department of Corrections (DOC) calculates the new parole eligibility

date of a parolee sentenced to a new term of imprisonment for a felony committed

while on parole. The Parole Board has no discretion to grant parole until that date.

The parties do not take issue with the practices of the DOC or the Parole Board.

Understanding their functions is nevertheless critical to understanding the issue

presented.

4
 In general, a prisoner becomes subject to the jurisdiction of the Parole

Board after he “has served a period of time equal to the minimum sentence

imposed by the court . . . .” MCL 791.234(1). A prisoner sentenced to

consecutive terms of imprisonment, “whether received at the same time or at any

time during the life of the original sentence,” is subject to the jurisdiction of the

Parole Board “when the prisoner has served the total time of the added minimum

terms . . . .” MCL 791.234(3). 2

2
MCL 791.234(1) and MCL 791.234(3) apply to a prisoner “other than a
prisoner subject to disciplinary time.” Where such a prisoner is concerned, the
parole eligibility calculation takes into account any “good time and disciplinary
credits” the prisoner has earned. MCL 791.234(2) and MCL 791.234(4) apply to a
prisoner “subject to disciplinary time.” Although we refer to MCL 791.234(1) and
MCL 791.234(3) throughout this opinion, our analysis and decision apply equally
to both sets of provisions and both classes of prisoners because the language on
which we rely appears in both sets of provisions.

A “prisoner subject to disciplinary time” includes (1) a “prisoner sentenced
to an indeterminate term of imprisonment for” a listed offense committed on or
after December 15, 1998, or any offense committed on or after that date that is not
listed and is punishable by life imprisonment, MCL 800.34(5)(a), and (2) “a
prisoner sentenced to an indeterminate term of imprisonment” for any crime that is
not listed committed on or after December 15, 2000, MCL 800.34(5)(b).

MCL 791.234 provides, in relevant part:

(1) Except as provided in [MCL 791.234a], a prisoner
sentenced to an indeterminate sentence and confined in a state
correctional facility with a minimum in terms of years other than a
prisoner subject to disciplinary time is subject to the jurisdiction of
the parole board when the prisoner has served a period of time equal
to the minimum sentence imposed by the court for the crime of
which he or she was convicted, less good time and disciplinary
credits, if applicable.
5
 Before June 1, 1988, MCL 768.7a(1)3 provided for consecutive sentencing

for prison escapees and persons who committed crimes while in prison. Under

(2) Except as provided in [MCL 791.234a], a prisoner subject
to disciplinary time sentenced to an indeterminate sentence and
confined in a state correctional facility with a minimum in terms of
years is subject to the jurisdiction of the parole board when the
prisoner has served a period of time equal to the minimum sentence
imposed by the court for the crime of which he or she was convicted.

(3) If a prisoner other than a prisoner subject to disciplinary
time is sentenced for consecutive terms, whether received at the
same time or at any time during the life of the original sentence, the
parole board has jurisdiction over the prisoner for purposes of parole
when the prisoner has served the total time of the added minimum
terms, less the good time and disciplinary credits allowed by statute.
The maximum terms of the sentences shall be added to compute the
new maximum term under this subsection, and discharge shall be
issued only after the total of the maximum sentences has been served
less good time and disciplinary credits, unless the prisoner is paroled
and discharged upon satisfactory completion of the parole.

(4) If a prisoner subject to disciplinary time is sentenced for
consecutive terms, whether received at the same time or at any time
during the life of the original sentence, the parole board has
jurisdiction over the prisoner for purposes of parole when the
prisoner has served the total time of the added minimum terms. The
maximum terms of the sentences shall be added to compute the new
maximum term under this subsection, and discharge shall be issued
only after the total of the maximum sentences has been served,
unless the prisoner is paroled and discharged upon satisfactory
completion of the parole.
3
Before the statute was amended in 1988, MCL 768.7a(1) provided:

A person who is incarcerated in a penal or reformatory
institution in this state, or who escapes from that institution, and who
commits a crime during that incarceration or escape which is
punishable by imprisonment in a penal or reformatory institution in
this state shall, upon conviction thereof, be subject to sentence
therefor in the manner provided by law for such crimes. The term of
6
that provision and MCL 791.234(3),4 the DOC had, for more than 40 years,

“computed the eligibility for parole of an inmate who commits a crime in prison or

an escapee who commits a crime while escaped by adding the consecutive

minimum terms of all the offenses for which he is incarcerated in state prison.”

Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 579-580; 548 NW2d

900 (1996).

In 1988,5 the Legislature added current MCL 768.7a(2), which provides:

If a person is convicted and sentenced to a term of
imprisonment for a felony committed while the person was on parole
from a sentence for a previous offense, the term of imprisonment
imposed for the later offense shall begin to run at the expiration of
the remaining portion of the term of imprisonment imposed for the
previous offense.

In Wayne Co Prosecutor, we considered the prosecutor’s argument that MCL

768.7a(2) impliedly repealed MCL 791.238(5)6 and MCL 791.234(3) because “the

sentence imposed for the crime shall commence at the expiration of
the term or terms of sentence which the person is serving or has
become liable to serve in a penal or reformatory institution in this
state.

MCL 768.7a(1), as amended by 1988 PA 48, now provides, in part: “The
term of imprisonment imposed for the crime shall begin to run at the expiration of
the term or terms of imprisonment which the person is serving or has become
liable to serve in a penal or reformatory institution in this state.”
4
1994 PA 217 renumbered former MCL 791.234(2) as MCL 791.234(3).
The Wayne Co Prosecutor decision referred to this section as MCL 791.234(2) in
order to remain consistent with the parties’ briefs. Wayne Co Prosecutor v Dep’t
of Corrections, 451 Mich 569, 573 n 5; 548 NW2d 900 (1996).
5
1988 PA 48, effective June 1, 1988.
7
‘remaining portion’ clause of [MCL 768.7a(2)] . . . require[d] parolees who

commit crimes while on parole to first serve the maximum of the earlier sentence

before beginning to serve the new sentence.” Id. at 574. We rejected that

argument. Instead, we concluded that MCL 768.7a(2) extended to parolees the

same consecutive sentencing treatment to which prisoners who committed crimes

while incarcerated and escapees were subjected under former MCL 768.7a(1). Id.

at 577-578. We saw no indication that the Legislature intended to alter the DOC’s

longstanding method of sentence calculation, as the prosecutor urged. Id. at 580-

581. We held that

the “remaining portion” clause of [MCL 768.7a(2)] requires the
offender to serve at least the combined minimums of his sentences,
plus whatever portion, between the minimum and the maximum, of
the earlier sentence that the Parole Board may, because the parolee
violated the terms of parole, require him to serve. [Id. at 584.]

Thus, in Wayne Co Prosecutor, we rejected the prosecutor’s argument that MCL

768.7a(2) requires a parolee to serve his entire original maximum sentence, plus

his new minimum sentence, before becoming eligible for parole, and held that the

DOC’s practice of calculating the new parole eligibility date, as mandated by

MCL 791.234(3), was consistent with MCL 768.7a(2).

As the parties acknowledge, neither the DOC nor the Parole Board has

sentencing authority. The DOC calculates the prisoner’s new parole eligibility

6
MCL 791.238(5) provides: “A prisoner committing a crime while at large
on parole and being convicted and sentenced for the crime shall be treated as to
the last incurred term as provided under [MCL 791.234].”
8
date after sentencing. Under MCL 791.234(3), the Parole Board lacks jurisdiction

over the prisoner until he reaches that new parole eligibility date. In general, a

parolee will have already served his original minimum sentence,7 so he will

become parole eligible after serving his new minimum sentence. At that point, the

Parole Board has jurisdiction to decide whether the prisoner is worthy of parole.

MCL 791.234(3). The issue here is not the practices of the DOC or the Parole

Board, but whether the sentencing court is required or authorized, under MCL

769.11b or as a matter of common law discretion, to grant defendant credit against

his new minimum sentence for the time he served in jail following his arrest for

the new offenses and before his sentencing for those offenses.

C. THE JAIL CREDIT STATUTE

Michigan’s sentencing credit statute, MCL 769.11b, provides:

7
In general, the parolee will already have served his minimum sentence in
order to be eligible for parole, so he will be considered to be serving time against
his original maximum sentence. As we explained in Wayne Co Prosecutor,
however,

[MCL 791.233(1)(b)] permits “special parole” of a prisoner [other
than a prisoner subject to disciplinary time, see MCL 791.233(1)(d)]
“whenever the sentencing judge . . . gives written approval of the
parole of the prisoner before the expiration of the minimum term of
imprisonment.”

A special parolee who commits another offense while on
parole thus will ordinarily have some time left to serve on the
minimum of the earlier sentence before beginning service of the new
minimum sentence. [Wayne Co Prosecutor, supra at 581.]

9
 Whenever any person is hereafter convicted of any crime
within this state and has served any time in jail prior to sentencing
because of being denied or unable to furnish bond for the offense of
which he is convicted, the trial court in imposing sentence shall
specifically grant credit against the sentence for such time served in
jail prior to sentencing.

Although this Court has not considered whether the statute applies to

parolees, we considered its applicability in a related context in People v Prieskorn,

424 Mich 327; 381 NW2d 646 (1985). There the defendant posted bond for

marijuana charges and was arrested while on bond for a driving offense. He was

later incarcerated and began serving a 90-day sentence for the driving offense. In

the case before this Court, he sought credit toward the sentence for the marijuana

conviction for 51 days of the confinement he had served under the sentence for the

driving offense. Id. at 343. We held that the jail credit statute “neither requires

nor permits sentence credit” in cases in which a defendant released on bond after

being charged with one offense is subsequently incarcerated as a result of charges

arising out of an unrelated offense “and then seeks credit in the former case for

that latter period of confinement.” Id. at 340. “Had the Legislature intended that

convicted defendants be given sentence credit for all time served prior to

sentencing day, . . . it would not have conditioned and limited entitlement to credit

to time served ‘for the offense of which [the defendant] is convicted.’” Id. at 341.

We concluded:

To be entitled to sentence credit for presentence time served,
a defendant must have been incarcerated “for the offense of which
he is convicted.” Since the fifty-one days of incarceration for which

10
 the defendant seeks credit is unrelated to the offense before us for
which he has been convicted, he is not entitled to sentence credit for
that confinement. [Id. at 344.]

In People v Adkins, 433 Mich 732, 739; 449 NW2d 400 (1989), we applied

Prieskorn to a case in which the defendant was released on bond after being

charged with armed robbery and, before trial and conviction of the armed robbery

charge, was arrested and convicted of two unrelated stolen property offenses in

two other jurisdictions and began serving sentences for those convictions. We

held that when, “as here, the defendant has served time not as a result of his

inability to post bond for the offense for which he seeks credit, but because of his

incarceration for another offense, [MCL 769.11b] is simply not applicable.” Id. at

751.

Relying on Prieskorn, the Court of Appeals recently held that the jail credit

statute does not apply to parolees. Seiders held that a parolee arrested for a new

criminal offense is entitled to jail credit exclusively toward the sentence from

which parole was granted and not toward the new sentence. Seiders, supra at 705-

708. The Court cited Prieskorn, supra at 340-341, for the proposition that MCL

769.11b “does not . . . entitle a defendant to credit for time served before

sentencing if he is incarcerated for an offense other than that for which he is

ultimately convicted, or for other unrelated reasons.” Seiders, supra at 706-707.

It reasoned that because a “defendant is only entitled to a sentencing credit under

MCL 769.11b if he has been ‘denied or unable to furnish bond’” and “bond is

11
neither set nor denied when a defendant is held in jail on a parole detainer,” MCL

769.11b does not apply to a parole detainee. Id. at 707 (emphasis in Seiders). The

Court of Appeals reaffirmed Seiders in People v Stead, 270 Mich App 550; 716

NW2d 324 (2006), and Filip. Filip, following Seiders, held that “MCL 769.11b is

inapplicable under circumstances where a parolee is held on new charges that

constitute a parole violation.” Filip, supra at 641. The Court reasoned:

MCL 791.238(1) provides that a parolee remains legally in
the custody of the Department of Corrections, and that “[p]ending a
hearing upon any charge of parole violation, the prisoner shall
remain incarcerated.” This provision unambiguously declares that
parole violators cannot avoid confinement pending resolution of the
violation proceedings. Such a period of incarceration thus
constitutes part of the original sentence and in that sense is credited
against it. Moreover, “denied,” as used in MCL 769.11b, implies the
exercise of discretion, not the recognition of outright ineligibility.
For that reason, MCL 769.11b simply does not apply to parole
detainees. Therefore, the trial court erred in setting bond for Filip in
the first instance. Simply put, the erroneously granted possibility of
posting bond did not secure Filip any rights under MCL 769.11b. In
sum, contrary to the trial court's ruling, Seiders governs and must be
applied. [Id. at 641-642.]

Although we reach essentially the same conclusion as the Court of Appeals

did in Seiders and Filip—that the jail credit statute does not generally apply to

parolees who commit new felonies while on parole—we do so on the basis of a

somewhat different analysis. Consistent with our reasoning in Adkins, we hold

that the jail credit statute does not apply to a parolee who is convicted and

sentenced to a new term of imprisonment for a felony committed while on parole

because, once arrested in connection with the new felony, the parolee continues to

serve out any unexpired portion of his earlier sentence unless and until discharged

12
by the Parole Board. For that reason, he remains incarcerated regardless of

whether he would otherwise be eligible for bond before conviction on the new

offense.8 He is incarcerated not “because of being denied or unable to furnish

8
Subject to several exceptions, the general rule under the Michigan
Constitution is that all persons are entitled to bail before conviction. A parolee is,
of course, in the post-conviction stage with respect to the earlier conviction from
which he was paroled.

Article 1, § 15 of the Michigan Constitution of 1963, which addresses
eligibility for bond, provides in relevant part:

No person shall be subject for the same offense to be twice
put in jeopardy. All persons shall, before conviction, be bailable by
sufficient sureties, except that bail may be denied for the following
persons when the proof is evident or the presumption great:

(a) A person who, within the 15 years immediately preceding
a motion for bail pending the disposition of an indictment for a
violent felony or of an arraignment on a warrant charging a violent
felony, has been convicted of 2 or more violent felonies under the
laws of this state or under substantially similar laws of the United
States or another state, or a combination thereof, only if the prior
felony convictions arose out of at least 2 separate incidents, events,
or transactions.

(b) A person who is indicted for, or arraigned on a warrant
charging, murder or treason.

(c) A person who is indicted for, or arraigned on a warrant
charging, criminal sexual conduct in the first degree, armed robbery,
or kidnapping with intent to extort money or other valuable thing
thereby, unless the court finds by clear and convincing evidence that
the defendant is not likely to flee or present a danger to any other
person.

(d) A person who is indicted for, or arraigned on a warrant
charging, a violent felony which is alleged to have been committed
while the person was on bail, pending the disposition of a prior
violent felony charge or while the person was on probation or parole
13
bond” for the new offense, but for an independent reason. Therefore, the jail

credit statute, MCL 769.11b, does not apply.9

Once a prisoner has served his minimum sentence, the Parole Board has

jurisdiction over the prisoner and has discretion to grant parole. MCL 791.234(1).

While on parole, the prisoner “shall be considered to be serving out the sentence

imposed by the court,” MCL 791.238(6),10 but he “remain[s] in the legal custody

and under the control of the department,” MCL 791.238(1).11 When there has

as a result of a prior conviction for a violent felony. [Emphasis
added.]

See also MCR 6.106(B) (pretrial release/custody under Const 1963,
art 1, § 15).
9
Despite Justice Markman’s lengthy criticism of Prieskorn, post at 9-10,
it—along with Adkins—remains binding precedent. In any event, we base our
analysis on the language of MCL 769.11b, which requires jail credit when the
defendant serves time in jail “because of being denied or unable to furnish bond
for the offense of which he is convicted . . . .” A parolee who commits a new
crime while on parole serves time in jail because he is serving out his earlier
maximum term of imprisonment, not “because of being denied or unable to
furnish bond for the [new] offense.”
10
MCL 791.238(6) provides:

A parole shall be construed as a permit to the prisoner to
leave the prison, and not as a release. While at large, the paroled
prisoner shall be considered to be serving out the sentence imposed
by the court and, if he or she is eligible for good time, shall be
entitled to good time the same as if confined in a state correctional
facility.

As explained in n 7 of this opinion, a prisoner granted parole will generally
have already served his minimum sentence, so he is considered to be serving time
against his original maximum sentence.
11
MCL 791.238 provides, in relevant part:
14
been a “probable violation of parole,” the DOC may issue a warrant for the

parolee’s return. MCL 791.238(1). Moreover, if “reasonable grounds” exist to

believe that the parolee violated his parole, he may be “arrested without a warrant

and detained in any jail of this state.” MCL 791.239.12

Under MCL 791.238(2), a “prisoner violating the provisions of his or her

parole and for whose return a warrant has been issued by the deputy director of the

(1) Each prisoner on parole shall remain in the legal custody
and under the control of the department. The deputy director of the
bureau of field services, upon a showing of probable violation of
parole, may issue a warrant for the return of any paroled prisoner.
Pending a hearing upon any charge of parole violation, the prisoner
shall remain incarcerated.

(2) A prisoner violating the provisions of his or her parole and
for whose return a warrant has been issued by the deputy director of
the bureau of field services is treated as an escaped prisoner and is
liable, when arrested, to serve out the unexpired portion of his or her
maximum imprisonment. The time from the date of the declared
violation to the date of the prisoner’s availability for return to an
institution shall not be counted as time served. The warrant of the
deputy director of the bureau of field services is a sufficient warrant
authorizing all officers named in the warrant to detain the paroled
prisoner in any jail of the state until his or her return to the state
penal institution.
12
MCL 791.239 provides:

A probation officer, a parole officer, a peace officer of this
state, or an employee of the department other than a probation or
parole officer who is authorized by the director to arrest parole
violators may arrest without a warrant and detain in any jail of this
state a paroled prisoner, if the probation officer, parole officer, peace
officer, or authorized departmental employee has reasonable grounds
to believe that the prisoner has violated parole or a warrant has been
issued for his or her return under [MCL 791.238].
15
bureau of field services[13] . . . is liable, when arrested, to serve out the unexpired

portion of his or her maximum imprisonment,” but the “time from the date of the

declared violation to the date of the prisoner’s availability for return to an

institution shall not be counted as time served.” (Emphasis added.) Because a

paroled prisoner is considered to be serving his sentence as long as he remains in

compliance with the terms of his parole, MCL 791.238(6), except “from the date

of the declared violation to the date of the prisoner’s availability for return to an

institution,” MCL 791.238(2),14 the second part of MCL 791.238(2) establishes

that the time after “the date of the prisoner’s availability for return to an

institution” is to be counted as time served against the parolee’s original sentence.

For a prisoner paroled and arrested again in Michigan, the parolee’s “date of . . .

availability” is effectively the date of his arrest. See Browning v Michigan Dep’t

of Corrections, 385 Mich 179, 188-189; 188 NW2d 552 (1971).15 The phrase

13
Although this provision mentions a warrant issued by the DOC, the
prosecutor stated at oral argument that the DOC does not always issue a warrant.
As noted earlier, a parolee may be arrested without a warrant and detained if there
are “reasonable grounds” to believe that he has violated his parole. MCL 791.239.
14
This provision is often referred to as the “dead time” statute.
15
Browning held that “the phrase ‘date of availability’ means actual or
constructive availability for return to the Michigan penal system.” Browning,
supra at 189. Browning was decided before consecutive sentencing was mandated
for parolees who commit new felonies while on parole. Also, as we noted in
Browning, before 1968, the “dead time” statute—that is, the statute defining the
time that will not be counted as time served for a parolee—used the language
“date of arrest” instead of “date of . . . availability.” Id. at 187. Our decision in
Browning addressed the disparity created between in-state and out-of-state
parolees that resulted from the DOC’s interpretation of “date of . . . availability”
16
“date of . . . availability” indicates that the parolee resumes serving his earlier term

of imprisonment when arrested and detained in jail even though he has not yet

been returned to the physical custody of the DOC.

In sum, under MCL 791.238(2), the parolee is “liable, when arrested, to

serve out the unexpired portion of his or her maximum imprisonment” and

actually resumes serving that term of imprisonment on the date of his availability

for return to the DOC, which in this case is synonymous with the date of his

arrest.16 The parolee is not incarcerated “because of being denied or unable to

when an out-of-state detainee was concerned. A 1969 DOC policy directive
instructed that, for an alleged parole violator arrested outside of Michigan, “the
date of availability will be the date on which the authorities in the holding
jurisdiction declare the alleged violator to be available for return to Michigan.”
See id. at 191. We noted that this interpretation effectively imposed consecutive
sentencing on an out-of-state parolee and repudiated the DOC’s interpretation of
“date of . . . availability” in this context. Id. at 189. We held that “the phrase
‘date of availability’ means actual or constructive availability for return to the
Michigan penal system. The arrest of a parolee, irrespective of the location of the
arrest, coupled with issuance of a parole violation warrant and good faith effort to
retake the parolee constitutes constructive availability.” Id.
16
Under Justice Markman’s interpretation of MCL 791.238(2), one does
not know whether the time served in jail is to be considered time served against
the parolee’s original maximum sentence until the parolee is convicted or
acquitted of the new criminal charges. At that point, if the parolee is acquitted,
“the Parole Board must then make a new determination regarding how much of
the ‘unexpired portion’ of the defendant’s original sentence must be served before
the defendant can once again be paroled.” Post at 10-11. Only “[i]f the Board
determines that the defendant does have to serve an unexpired portion” will a
defendant who is “‘liable’ to serve the ‘unexpired portion’” of his original
sentence be considered to have served the time in jail against his original
maximum sentence. Post at 11. As explained in part V of this opinion, Justice
Markman’s analysis is based on a nonexistent statutory requirement. It is also
unnecessary. The meaning of “liable . . . to serve” is found within MCL
791.238(2) itself: the parolee becomes liable, upon arrest, to resume serving his
17
furnish bond for the offense of which he is convicted . . . .” MCL 769.11b.

Because the parolee is required to remain in jail pending the resolution of the new

criminal charge for reasons independent of his eligibility for or ability to furnish

bond for the new offense, the jail credit statute does not apply.17

original maximum sentence and actually resumes serving it when he becomes
“available”—actually or constructively—to the DOC.

See also the brief of the DOC as amicus curiae in response to defendant-
appellant’s application for leave to appeal in the case of People v Wright, 474
Mich 1138 (2006) (Docket No. 128424), at 5 (“Once the prisoner becomes parole
eligible, the focus of the [DOC] is to keep track of the remaining maximum
sentence. When the prisoner is granted a parole, each day on parole counts toward
the service of the maximum sentence as well. Even if a parole is revoked, the time
spent on parole is counted towards the service of the maximum sentence. The only
time the service of a sentence is suspended or stopped is if the prisoner escapes
from prison [see MCL 800.61] or if as a parolee the prisoner absconds from
parole supervision [see MCL 791.238(2)].”) (emphasis added).
17
We caution that, for a parolee who reached his maximum discharge date
while being held in jail, this independent reason would be removed. If the parolee
was then “denied or unable to furnish bond,” the sentencing court would be
required to grant jail credit under MCL 769.11b.

See DOC Policy Directive No. 06.06.100, Parole Violation Process, § B
(February 26, 2007) (“If a parolee approaching his or her potential maximum date
is believed to have violated a condition of parole, the parole violation process set
forth in this policy will be expedited to ensure it is completed prior to that date.
Under no circumstances shall a parolee be held on pending parole violation
charges beyond his/her maximum discharge date.”). The version of the policy
directive in effect in 2006 contained an identical provision.

This exception does not apply here because defendant was not nearing his
maximum discharge date at the time of his arrest. According to information
available on the DOC’s Offender Tracking Information System, defendant’s
maximum discharge date before the new sentences were imposed was 2024
(defendant’s current maximum discharge date is listed as 2076, and his combined
maximum for the new sentences is 52 years). See

(accessed July 30, 2009).
18
 In this case, defendant was paroled on May 10, 2005, from multiple felony

convictions. He committed the instant offenses on November 23, 2006, and was

arrested on November 28, 2006. He remained in jail until sentencing on March 6,

2007, when he was returned to prison. He now seeks credit for those 98 days

against his new minimum sentence. Under MCL 791.238(2), however, defendant

resumed serving the remaining portion of his earlier sentences when he was

arrested. He was not serving time in jail “because of being denied or unable to

post bond” for the new offense, MCL 769.11b, so the jail credit statute does not

apply. 18

D. SENTENCING COURT DISCRETION TO GRANT JAIL CREDIT

We also reject defendant’s argument that a sentencing court retains

discretion to grant credit19 regardless of the applicability of the jail credit statute.20

As explained, the statutory scheme pertaining to parolees dictates that defendant’s

98 days in jail were served against his original maximum sentence. The

sentencing court had no discretionary authority to circumvent the operation of the

statutory scheme. MCL 769.11b “neither requires nor permits” sentencing credit

except as provided in the statute. Prieskorn, supra at 340. “The enactment of

18
The court set a $500,000 bond in this case.
19
Before the Legislature enacted the jail credit statute, a criminal defendant
had no right to sentencing credit, and the matter was left to the discretion of the
sentencing court. Prieskorn, supra at 333.
20
Although there is language to the contrary in Adkins, supra at 751 n 10,
the Court was not considering consecutive sentencing in that case.
19
[MCL 769.11b] reflects the Legislature’s intention to entitle every defendant in a

criminal case to the sentence credit described in the statute, instead of leaving the

matter to the discretion of sentencing courts.” Id. at 333, see also Hoerstman Gen

Contracting, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006), quoting

Millross v Plum Hollow Golf Club, 429 Mich 178, 183; 413 NW2d 17 (1987),

citing 2A Sands, Sutherland Statutory Construction (4th ed), § 50.05, pp 440-441

(“‘In general, where comprehensive legislation prescribes in detail a course of

conduct to pursue and the parties and things affected, and designates specific

limitations and exceptions, the Legislature will be found to have intended that the

statute supersede and replace the common law dealing with the subject matter.’”).

Accordingly, the sentencing court lacked the authority to grant defendant credit

against his new minimum sentence.

E. CONSTITUTIONAL CHALLENGES

Defendant also claims that he was subjected to “multiple punishments” in

violation of the double jeopardy clauses of the United States and Michigan

constitutions. US Const, Am V; Const 1963, art 1, § 15. We disagree. “The

double jeopardy clauses of the United States and Michigan constitutions protect

against governmental abuses for both (1) multiple prosecutions for the same

offense after a conviction or acquittal and (2) multiple punishments for the same

offense.” People v Calloway, 469 Mich 448, 450; 671 NW2d 733 (2003).

Defendant claims that because he did not receive credit for the time he spent in jail

awaiting sentencing on the new offenses, he “spent his time in jail awaiting

20
conviction and sentence as a separate, additional term for the latter offense.” This

is incorrect. As explained, defendant continued to serve out his earlier sentence

after he was arrested. He was not subjected to multiple terms of confinement for

his new offenses.

Finally, defendant claims that denying credit toward a parolee’s new

minimum sentence violates due process21 and equal protection guarantees because

it results in unequal treatment of similarly situated defendants.22 US Const, Am

XIV, § 1; Const 1963, art 1, §§ 2 and 17. We reject defendant’s contention.

The equal protection clauses of the United States and Michigan

Constitutions are coextensive. Harvey, supra at 6. Unless the legislation at issue

creates a classification based on “suspect” factors such as race, national origin, or

ethnicity, which trigger the highest level of review (“strict scrutiny”), or factors

such as gender or illegitimacy, which require an intermediate level of review

(“heightened scrutiny”), it is reviewed under a rational basis standard. Id. at 7-8.

Defendant acknowledges that rational basis review applies here.

Under rational basis review, “‘the statute is presumed constitutional, and

the party challenging it bears a heavy burden of rebutting that presumption.’” Id.

21
The substance of defendant’s argument focuses on equal protection; he
does not separately address the requirements of due process.
22
In his brief, defendant does not take issue with the DOC’s practices, but
with sentencing courts’ denial of credit: “Disparity is created not by the MDOC
parole violation process, but by the judicial practice to date of denying jail credit
to parolees who commit new crimes. This practice is anchored by the belief that
such offenders do receive credit, they just receive it somewhere else.”
21
at 7 (citation omitted). “To prevail under this highly deferential standard of

review, a challenger must show that the legislation is arbitrary and wholly

unrelated in a rational way to the objective of the statute.” Id. (quotation marks

and citations omitted). “‘Rational-basis review does not test the wisdom, need, or

appropriateness of the legislation, or whether the classification is made with

“mathematical nicety,” or even whether it results in some inequity when put into

practice.’” Id. (citation omitted).

As is significant to each of defendant’s constitutional arguments, parolees

are situated differently from nonparolee criminal defendants and, as a result, they

do not always enjoy the same “panoply of rights.” See Morrissey v Brewer, 408

US 471, 480; 92 S Ct 2593; 33 L Ed 2d 484 (1972) (“[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.”). A parolee

is only conditionally permitted to leave prison on parole. Parole is “a permit to the

prisoner to leave the prison, and not . . . a release,” and “[w]hile at large, the

paroled prisoner shall be considered to be serving out the sentence imposed by the

court . . . .” MCL 791.238(6). He “remain[s] in the legal custody and under the

control of the department.” MCL 791.238(1). As this Court explained in In re

Eddinger, 236 Mich 668, 670; 211 NW 54 (1926), the

purpose of a parole is to keep the prisoner in legal custody while
permitting him to live beyond the prison enclosure so that he may
have an opportunity to show that he can refrain from committing
crime. It is a conditional release, the condition being that if he makes
good he will receive an absolute discharge from the balance of his

22
 sentence; but if he does not make good he will be returned to serve
his unexpired time. [Emphasis added.]

See also 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.”).

Defendant claims that the denial of credit against a parolee’s new minimum

sentence results in unequal treatment in two ways: first, it creates a disparity

between parolees and nonparolees because the latter are granted credit, while the

former are not, and, second, it creates a disparity among parolees based on the

decision to plead guilty and other “arbitrary” factors that affect the parolee’s

sentencing date.

The first claimed disparity arises from the application of the jail credit

statute, MCL 769.11b. As we have explained, this statute does not apply to

parolees upon their arrest for new crimes. Rather, parolees are granted credit

against their earlier sentences for time served in jail under MCL 791.238(2).

Thus, both parolees and nonparolees receive credit for time served. Defendant

may prefer credit on his new sentence, but this is not what the statutes require.

And it is entirely rational for the Legislature to treat parolees and nonparolees

differently in this regard because parolees are continuing to serve out existing

prison sentences after being granted mere conditional releases.

Second, defendant claims that denial of credit results in a disparity among

parole violators based on the choice between a guilty plea and a jury trial, as well

23
as other “arbitrary” factors, such as the degree of docket congestion. No statute,

including MCL 791.238(2), the jail credit statute, MCL 769.11b, and MCL

791.234(3), which sets forth the method for computing the new parole eligibility

date, makes a distinction between a parolee who pleads guilty and one who

chooses to go to trial. Even if the Legislature had created such a distinction, the

United States Supreme Court has stated that “there is no per se rule against

encouraging guilty pleas” and has “squarely held that a State may encourage a

guilty plea by offering substantial benefits in return for the plea.” Corbitt v New

Jersey, 439 US 212, 218-219; 99 S Ct 492; 58 L Ed 2d 466 (1978). Moreover,

this Court rejected a similar claim in Prieskorn, supra at 341-342:

It may be that for defendants who find themselves
incarcerated for multiple unrelated offenses, one of the motivations
to plead guilty to some of the charges is the desire to accelerate the
imposition of sentence in order to benefit, as much as possible, from
Michigan’s concurrent sentencing law. But that ingredient of a
given defendant’s motivation derives from the peculiar facts with
which the defendant facing multiple charges is confronted and not,
we think, from limiting application of the sentence credit statute to
those circumstances described by its terms. We think it is clear that
the Legislature sought, by the statute, to give a criminal defendant a
right to credit for any presentence time served upon “the offense of
which he is convicted.” Judicial obedience to the language of the
legislation may, incidentally, indeed coincidentally, have the effect
of motivating a defendant, who is charged with multiple offenses
and who has posted bond for one offense and was released, but who
is incarcerated for a second offense, to waive his right to trial and
proceed to plead guilty in the first case in order to get the sentencing
clock running on that conviction while awaiting final disposition of
the offense for which he is denied bond, or final resolution of an
unrelated “hold” or “detainer.” However, that motivation does not
change the language of the statute and should not be judicial excuse
for applying the statute to situations to which it does not extend.

24
 To the extent the denial of credit against the new minimum sentence results

in some parole violators reaching their parole eligibility dates earlier than others

on the basis of “arbitrary” factors such as docket congestion or a judge’s illness,

this does not amount to a violation of equal protection. Any difference in

treatment does not arise from any classification created by the Legislature, and

even when suspect factors are involved, a disparate impact created by facially

neutral legislation does not necessarily amount to a violation of the Equal

Protection Clause. See Washington v Davis, 426 US 229, 242; 96 S Ct 2040; 48 L

Ed 2d 597 (1976). Further, because of parolees’ unique status, defendant fails to

meet the heavy burden of rebutting the presumption of constitutionality on this

issue.23

23
In his dissenting opinion, Justice Markman asserts that

the Parole Board’s current practice of failing to undertake its
statutory responsibilities, passively waiting for a defendant to
be convicted of a new crime, and then mechanically
concluding that the amount of time a defendant has spent
awaiting trial on his new offense automatically constitutes the
remaining portion of the original sentence that the defendant
must serve, treats identically situated defendants in a
sometimes widely disparate fashion . . . . [Post at 27.]

Justice Markman’s arbitrariness concern is grounded in his misconception
of the statutory responsibilities of the Parole Board. As explained in part V of this
opinion, parole eligibility is purely a function of statute. We acknowledge that
factors such as docket congestion and a judge’s illness affect the date a parolee is
sentenced for a new offense, the date he begins serving his new sentence, and,
consequently, his new parole eligibility date. But this arises from the operation of
the statutory scheme, not from any action—or inaction—of the Parole Board. As
Justice Markman acknowledges, post at 28 n 11, some arbitrariness will always
inhere in the criminal process.
25
 F. EXAMPLE CALCULATION

As a simple illustration of how the statutory scheme operates to give credit

against a parole violator’s original maximum sentence, consider this example. An

offender is sentenced to 1 to 10 years in prison. He is granted parole after serving

his minimum sentence. No time remains on his minimum sentence, and 9 years

remain on his maximum sentence. After 2 years on parole, he commits an act that

gives rise to a new felony charge. After a week of “dead time” during which he is

not serving time against his prior sentence, he is arrested on the new felony charge

Even Justice Markman’s interpretation of the statutory scheme does not
remove all arbitrariness. Justice Markman posits that when the parolee is
acquitted of the new criminal charges, “the Parole Board must then make a new
determination regarding how much of the ‘unexpired portion’ of the defendant’s
original sentence must be served before the defendant can once again be paroled.
If the Board determines that the defendant does have to serve an unexpired portion
of his initial sentence, the defendant will then be awarded credit for time served on
his original sentence.” Post at 10-11 (citations omitted).

To illustrate the arbitrariness that may result, assume Parolee A and Parolee
B are each arrested on the same date and charged on the same date with new
criminal offenses allegedly committed while on parole. Both decide to go to trial
and serve time in jail awaiting trial. Parolee A’s jury trial is held one month after
his arrest, and he is acquitted. Parolee B’s trial is delayed for one year because of
docket congestion, a judge’s illness, or continuances requested by the prosecution
for reasons unrelated to Parolee B’s case. Parolee B is also acquitted. According
to Justice Markman’s theory, the Parole Board is in each case required to
determine after acquittal whether the parolee is required to serve an “unexpired
portion” of his original sentence and, if so, how much. Assume that in the case of
each parolee, the Parole Board does so and determines that neither is required to
serve any “remaining portion.” Thus, under Justice Markman’s theory, Parolee A
is eligible for parole one month after arrest, while Parolee B is eligible for parole
one year after arrest. Even if both receive credit against their original maximum
sentences for the time served in jail, Parolee B has suffered parole eligibility
consequences for arbitrary reasons.
26
and again begins serving the remaining portion of the prior sentence. At that time,

he has 7 years remaining on his maximum. He spends 1 year in jail awaiting trial,

conviction, and sentencing on the new offense. Accordingly, on his sentencing

date, 6 years remain of his original maximum term. He receives a 2- to 5-year

term of imprisonment for the new offense.

Under MCL 791.234(3), the DOC calculates the new parole eligibility date

by adding the original minimum term and the new minimum term. Because the

offender has already served his entire original minimum term, his new parole

eligibility date is 2 years from the date of sentencing on the new offense. The

DOC calculates the new maximum discharge date by adding the new maximum

sentence imposed by the court (5 years) to the offender’s original maximum

sentence (10 years). Thus, the offender’s new maximum term is 15 years.

Because he has already served 4 years of his original maximum sentence, the

offender’s new maximum term will expire 11 years from the date the new

sentence was imposed.

IV. RESPONSE TO CHIEF JUSTICE KELLY

Chief Justice Kelly agrees that defendant is not entitled to jail credit under

MCL 769.11b, but bases her analysis on an interpretation of MCL 791.234(3)24

that leads to an illogical result, fails to account for the broader statutory scheme,

24
As the Chief Justice notes, her analysis applies equally to MCL
791.234(3) and MCL 791.234(4). Post at 2 n 2. Our response also applies to both
subsections. For consistency, we will continue to refer to MCL 791.234(3).
27
and is contrary to the longstanding practice of the DOC approved by this Court in

Wayne Co Prosecutor.

When a prisoner is paroled after serving his original minimum sentence and

serves time on parole before committing a subsequent offense while on parole,

Chief Justice Kelly’s interpretation of MCL 791.234(3) would effectively allow

the offender to begin serving his new minimum sentence before he commits the

offense for which that sentence was imposed. In some cases, this will mean that

the offender will, for parole eligibility purposes, have served his entire new

minimum sentence before committing the crime. To illustrate, take an offender

who commits offense A and is sentenced to a term of 2 to 10 years in prison.

After serving his 2-year minimum term, he is paroled. After 7 years on parole (9

years into his maximum sentence), the offender commits offense B and is

immediately arrested. He immediately pleads guilty and is sentenced to a term of

2 to 10 years in prison for offense B. Chief Justice Kelly posits that MCL

791.234(3) requires us to simply add all the time the offender has served since the

imposition of the sentence for offense A—whether in prison, on parole, or

awaiting disposition of the new criminal charges—to determine the offender’s new

parole eligibility date. Under this approach, the offender here became eligible to

be paroled from his sentence for offense B after serving 4 years—5 years before

he committed offense B. We disagree with Chief Justice Kelly that this is what

MCL 791.234(3) requires. MCL 791.234(3) states that for a prisoner “sentenced

for consecutive terms,” the Parole Board has jurisdiction “when the prisoner has

28
served the total time of the added minimum terms . . . .” The DOC’s longstanding

practice of calculating a prisoner’s new parole eligibility date, reflected in our

example calculation above and throughout our analysis, ensures that the parolee

serves “the total time of the added minimum terms” while also accounting for the

broader statutory scheme applicable to parolees sentenced to consecutive terms of

imprisonment.25

Moreover, MCL 791.238(6) provides that “[w]hile at large, the paroled

prisoner shall be considered to be serving out the sentence imposed by the

court . . . .” Nothing in MCL 791.238(6) indicates that time a prisoner spends on

parole from the original offense may be counted as time served against a new

minimum sentence not yet imposed, for a crime not yet committed. On the

contrary, “serving out the sentence imposed by the court” indicates that the

paroled prisoner continues to serve the sentence or sentences that exist at the time

he is on parole—the sentences he began serving in prison and from which he was

paroled. To use the example provided by Chief Justice Kelly, post at 12, a

defendant may serve time toward his maximum terms for two separate consecutive

sentences under the right circumstances. When a defendant is paroled after being

25
Chief Justice Kelly attempts to support her interpretation with an inapt
comparison to a first-time offender being awarded jail credit for time served
before his sentence is imposed. Post at 10-11. In the case of first-time offenders,
the Legislature explicitly allowed that result by enacting MCL 769.11b. Nothing
in the plain language of MCL 769.11b, however, suggests that credit may be
applied to a time before the sentencing offense was even committed. Accordingly,
Chief Justice Kelly’s example is inapposite.
29
convicted of a second offense and sentenced to a consecutive term of

imprisonment, the defendant is then actually serving out the combined maximum

term for the first and second offenses as calculated under MCL 791.234(3).

Contrary to Chief Justice Kelly’s assertion, however, if the defendant commits a

third offense while on parole from the first and second offenses, the court may not

apply time served on parole before committing the third offense toward the

sentence that will be imposed in the future for the third conviction. As noted

earlier, this contravenes the plain language of MCL 791.238(6).

Similarly, MCL 791.238(2) provides that a prisoner who violates the terms

of his parole “is liable, when arrested, to serve out the unexpired portion of his or

her maximum imprisonment.” As previously discussed, the prisoner resumes

serving that unexpired portion of his original maximum term on the date he

becomes available for return to the DOC—in this case, the date of his arrest.

MCL 791.238(2) indicates that, after he is arrested and becomes available for

return to the DOC, the offender is serving out his original maximum sentence—

not his yet-to-be-imposed new minimum sentence. Thus, we disagree with Chief

Justice Kelly that “an affirmative and individualized determination [by the Parole

Board] is the only proper mechanism for requiring the prisoner to serve additional

time only toward his maximum term.” Post at 7-8.

Finally, Chief Justice Kelly’s interpretation of MCL 791.234(3) is

inconsistent with Wayne Co Prosecutor. The defendant in that case was originally

30
sentenced to 6 to 15 years in prison. He was paroled after serving about 6 years

and 2 months in prison. After nearly 2 years on parole, the defendant committed

another offense for which he was sentenced to 3½ to 10 years in prison. Before

turning to the effect of newly enacted MCL 768.7a(2), we noted that

[i]f the foregoing statutory provisions [MCL 791.234(3) and MCL
791.238(5)] were the only provisions applicable, [the defendant]
clearly could be paroled after serving three and a half years on the
breaking and entering conviction. He had already served more than
the six-year minimum imposed for the armed robbery conviction
before he was returned to prison. [Wayne Co Prosecutor, supra at
573 (emphasis added).]

We rejected the prosecutor’s contention that MCL 768.7a(2) impliedly repealed

MCL 791.234(3) and MCL 791.238(5) and held that MCL 768.7a(2) extended to

parolees the same consecutive sentencing treatment to which prisoners who

commit crimes while incarcerated and escapees were subjected under former

MCL 768.7a(1). Id. at 577-578. We explained the DOC’s longstanding method

of calculating the new parole eligibility date as follows:

For over forty years, the department has computed the
eligibility for parole of an inmate who commits a crime in prison or
an escapee who commits a crime while escaped by adding the
consecutive minimum terms of all the offenses for which he is
incarcerated in state prison. Thus, consecutive sentences imposed on
persons who, while incarcerated or on escape, commit another crime
will commence to run when the total of the minimum sentences
imposed for prior offenses has been served. Accordingly, if an
inmate or escapee, who has served beyond his minimum term,
commits an offense while incarcerated or while on escape, the
“consecutive” sentence would commence to run immediately. [Id. at
579-580 (second emphasis added).]

31
Thus, in Wayne Co Prosecutor, we understood MCL 791.234(3), MCL

791.238(5), and MCL 768.7a(2) to mean that if a parolee sentenced to a

consecutive term of imprisonment for a crime committed while on parole had

already served his original minimum sentence, his new minimum sentence would

begin to run immediately. We did not suggest that a parolee could begin serving

his new minimum sentence before committing the crime for which it was imposed.

The DOC’s longstanding method of calculating a prisoner’s new parole

eligibility date yields logical results, complies with MCL 791.234(3), and is

consistent with the statutory scheme relevant to parolees sentenced to consecutive

terms of imprisonment for crimes committed while on parole. We approved the

DOC’s practice as consistent with the consecutive sentencing mandate of MCL

768.7a(2) in Wayne Co Prosecutor, and neither party here takes issue with the

practices of the DOC or the Parole Board. We find it puzzling that Chief Justice

Kelly would replace the DOC’s practice with an approach that yields illogical

results, is inconsistent with Wayne Co Prosecutor, and fails to account for the

relevant statutory scheme.

V. RESPONSE TO JUSTICE MARKMAN

Justice Markman constructs his analysis around a misconception that the

Parole Board is statutorily required to make a “remaining portion” determination

after a parolee is convicted or acquitted of a new crime allegedly committed while

32
on parole. He posits that the Parole Board is required to decide how much, if any,

of a defendant’s unexpired original maximum sentence he would otherwise

(absent the second sentence) be required to serve before becoming eligible for

parole. But parole eligibility is a function of statute, not Parole Board discretion,

and there is no statutory requirement that the Parole Board make the affirmative

determination Justice Markman proposes.

Justice Markman’s theory proceeds as follows. A prisoner is granted parole

once he has served his minimum term of imprisonment. MCL 791.234(1). After

his arrest for allegedly committing a new crime while on parole, the offender

serves time in jail. Depending on whether the offender is convicted or acquitted,

he may be serving that time against his original maximum sentence or his yet-to-

be imposed new minimum sentence. Once the offender is convicted or acquitted

of the new criminal charge, the Parole Board is required to convene and make an

affirmative determination about what, if any, “remaining portion” of his original

sentence the offender must serve before becoming eligible for parole (if acquitted)

or beginning to serve his new sentence (if convicted). If the offender is acquitted

of the new criminal charge, the time served in jail will be credited against his

original maximum sentence. If the offender is convicted of the new offense,

however, the offender is not considered to have been serving his original

maximum sentence while in jail. Instead, he must be granted credit against his

new minimum sentence under MCL 769.11b. That credit must be “awarded as a

component of the second offense,” but it “cannot actually be applied until the

33
second sentence is commenced.” Accordingly, the new sentence is “suspended

until the defendant serves the remaining portion of his original sentence.” Once

the defendant has served that “remaining portion,” he begins serving his new

sentence and the jail credit is applied.

Aside from the problem of its astounding complexity, this interpretation is

premised on a nonexistent statutory requirement. Recall that a prisoner is

generally eligible for parole when he has “served a period of time equal to the

minimum sentence imposed by the court . . . .” MCL 791.234(1).26 Justice

Markman asserts that, after conviction or acquittal of the new criminal charges, the

Parole Board is required to “make an affirmative determination of whether the

defendant is required to serve any remaining portion on his original sentence . . . .”

Post at 19. He explains that “when the Parole Board determines the remaining

portion of a defendant’s original sentence, it is essentially undertaking a

discretionary decision about when the defendant would have been eligible for

parole on his original sentence given the violation he committed while on parole.”

Post at 15. Thus, Justice Markman’s analysis is based on the idea that the parole

board is required to determine how much time a parolee who violates his parole,

but is not convicted of a second crime in connection with that parole violation,

must serve “in order to be eligible for parole once again on his original sentence . .

. .” Post at 15. He believes that the parolee’s parole eligibility date for the

26
Justice Markman acknowledges that “the date of [the defendant’s] parole
eligibility is determined by MCL 791.234(1) . . . .” Post at 2.
34
original offense changes or may change because the parolee has violated his

parole.

The flaw in Justice Markman’s theory is that parole eligibility is a function

of statute: MCL 791.234. Unless a new sentence is imposed consecutive to the

original sentence, in which case the offender’s new parole eligibility date is then

governed by MCL 791.234(3), the offender’s parole eligibility date does not

change. The defendant’s parole eligibility remains governed by MCL 791.234(1)

and, therefore, the defendant was and is eligible for parole when he has served his

original minimum sentence. Absent a new prison sentence that would bring parole

eligibility within the ambit of MCL 791.234(3), the offender’s parole eligibility is

unaffected by a finding of a parole violation. To be sure, the Parole Board has the

discretion to revoke parole in that situation,27 but that does not alter the offender’s

status as eligible for parole. Indeed, the Parole Board is not required to revoke

parole even if the evidence supports the parole violation allegation by a

preponderance of the evidence.28 We find no statutory support for Justice

Markman’s underlying conclusion that a parole violation alone may change the

27
“After a prisoner is released on parole, the prisoner’s parole is subject to
revocation at the discretion of the parole board for cause as provided in this
section.” MCL 791.240a(1).
28
“If a preponderance of the evidence supports the allegation that a parole
violation occurred, the parole board may revoke parole . . . .” MCL 791.240a(10)
(emphasis added).
35
parole eligibility date previously calculated under MCL 791.234(1) by making it a

matter of the Parole Board’s discretion.29

29
Justice Markman quotes various sentences from the DOC’s amicus curiae
brief in support of the proposition that the Parole Board is statutorily required to
make a “remaining portion” determination but has “abandoned its responsibility in
this respect . . . .” Post at 16-17 n 6.

In its amicus curiae brief, the DOC emphasizes that it lacks sentencing
authority and that its discretionary authority lies in determinations of parole
worthiness. When one reads the entire brief, it is clear that the DOC is stating that
the Parole Board “does not exercise its discretion” to make a “remaining portion”
determination because it lacks the authority to do so. In addition, the DOC’s
amicus curiae brief repeatedly refers the reader to its brief in People v Wright, 474
Mich 1138 (2006). There, the DOC explained:

After a parolee is returned to prison with a new consecutive
prison sentence, the Parole Board does nothing, since the prisoner is
not yet parole eligible as a matter of law until the new minimum
sentence is served. It is meaningless for the Parole Board to attempt
to make a prediction as to what their parole decision will be one,
two, or more years in the future when the prisoner becomes parole
eligible. However, unlike the situation of a prisoner returned to
prison with a new conviction and consecutive sentence, if a prisoner
is merely returned to prison as a parole violator for a ‘technical
violation’ such as testing positive for alcohol while on parole release
for an OUIL 3rd offense, the prisoner is still parole eligible, but the
Parole Board has determined that the prisoner is no longer parole
worthy. The Parole Board does not sentence the parole violator for a
‘technical violation’ to a new minimum sentence since the Parole
Board does not have such power. Rather, the Board sets a new
‘continuation date’ at which time they will again review the prisoner
for parole worthiness. The concept of a ‘continuation date’ is not
reserved for parole violators only. If any prisoner is not granted a
parole when they first become parole eligible by serving their
minimum sentence, the Parole Board sets a new ‘continuation date,’
typically 12, 18, or 24 months in the future, when the prisoner will
again be reviewed for parole worthiness. [Brief of the DOC, n 16
supra at 14-15 (emphasis in original).]
36
 “An agency such as the DOC has no inherent authority, and the limitations

of its power and authority ‘must be measured by the statutory enactments from

which it is created.’” People v Holder, 483 Mich 168, 175 n 21; ____NW2d ____

(2009) (citation omitted). The Parole Board has the discretionary authority to

grant or deny parole, MCL 791.233; MCL 791.234(1), (3), and (4); MCL 791.235.

Once it has granted a prisoner parole, the Parole Board also has the authority to

“discharge[] [the prisoner] upon satisfactory completion of the parole.” MCL

791.234(3). In addition,

[i]f a prisoner other than a prisoner subject to disciplinary time has 1
or more consecutive terms to serve in addition to the term he or she
is serving, the parole board may terminate the sentence the prisoner
is presently serving at any time after the minimum term of the
sentence has been served. [MCL 791.234(5).]

Finally, if the parolee violates the terms of his parole, the Parole Board has the

authority to revoke parole. MCL 791.240a. None of these statutorily defined

functions of the Parole Board includes a requirement that the Parole Board make

an “affirmative determination of how long the defendant must serve on [his first]

sentence.” Post at 16.

Instead, Justice Markman locates the “remaining portion” requirement in

MCL 734.234(1), as discussed above, MCL 791.241, and MCL 768.7a(2), as

interpreted in Wayne Co Prosecutor. MCL 791.241 provides, in full: “When the

parole board has determined the matter it shall enter an order rescinding such

parole, or reinstating the original order of parole or enter such other order as it

37
may see fit.” Justice Markman concludes that this constitutes a statutory

requirement that the Parole Board make an affirmative “remaining portion”

determination because it provides that “the Board ‘shall’ enter an order taking

some action after determining whether a parole violation has occurred . . . .” Post

at 31 n 14. MCL 791.241 requires the Parole Board to enter an order rescinding

parole, reinstating parole, or some other order “as it may see fit” once it has been

determined whether the parolee violated his parole. Nothing in that provision

requires the Parole Board to make a decision about how much additional time, if

any, a parolee is required to spend in prison before being paroled on some

predetermined future date. Moreover, when, as here, the parole violation is

“conviction for a felony or misdemeanor punishable by imprisonment,” the Parole

Board does not “determine[] the matter,” MCL 791.241, by holding a parole

violation hearing because no parole violation hearing is required. MCL

791.240a(3).30

Justice Markman locates the “affirmative determination” requirement on

which his analysis is based in the following discussion of MCL 768.7a(2) in

30
Justice Markman also states that MCL 791.233e “provides additional
guidance” to the Parole Board in making the “remaining portion” determination.

MCL 791.233e(1) requires the Parole Board to establish parole guidelines
to “govern the exercise of the parole board’s discretion . . . as to the release of the
prisoners on parole . . . . The purpose of the parole guidelines shall be to assist
the parole board in making release decisions that enhance the public safety.”
(Emphasis added.) There is no reference there, or anywhere else in the statutory
scheme, to a “remaining portion” determination.
38
Wayne Co Prosecutor, supra at 584: “[W]hatever portion, between the minimum

and the maximum, of the earlier sentence that the Parole Board may, because the

parolee violated the terms of parole, require him to serve.”31 As is apparent from

the statutes that pertain to the authority of the board (such as MCL 791.333, MCL

791.234, and MCL 791.240a), the Parole Board “requires” the parolee “to serve”

by exercising its statutory authority to revoke parole, MCL 791.240a, and

therefore delay the possibility of discharge, MCL 791.234(3), and by declining to

exercise its discretion under MCL 791.234(5) to terminate the sentence the parolee

is presently serving. The Parole Board may account for previous parole violations

in making these decisions. See MCL 791.233e(2)(d). We find no statutory

requirement that the Parole Board make an affirmative “remaining portion”

determination. Had this Court in Wayne Co Prosecutor understood MCL

768.7a(2) to impose a new requirement on the Parole Board, we presumably

would have said so.32

Thus, in addition to our disagreement with his interpretation of the jail

credit statute, MCL 769.11b, we conclude that Justice Markman’s approach to jail

credit is inconsistent with the statutory scheme pertaining to the authority of the

Parole Board and is not required by MCL 768.7a(2) or our decision in Wayne Co

31
Chief Justice Kelly shares a similar interpretation. See post at 7-8.
32
We also disagree with Justice Markman that a “remaining portion”
determination requirement emerges from some combination of MCL 791.234(1),
MCL 768.7a(2), and MCL 791.241. We believe the preceding discussion of these
statutes makes it clear that there is no such requirement.
39
Prosecutor. Finally, even assuming that Justice Markman is correct that this Court

could order the Parole Board to make individualized “remaining portion”

determinations without running afoul of Warda v Flushing City Council, 472 Mich

326; 696 NW2d 671 (2005),33 post at 17 n 6, we question whether it would be

advisable to do so. At the very least, such an order would require a major

restructuring of the Parole Board’s policies and procedures. In addition, the

DOC’s current practice of considering a parolee’s new sentence to begin running

on the date it is imposed for purposes of parole eligibility applies equally to all

prisoners. If this Court ordered the Parole Board to make individualized

“remaining portion” determinations, the Parole Board would be free to establish

variable standards that would generally be unreviewable by the courts under

Warda.

VI. CONCLUSION

Under MCL 791.238(2), defendant resumed serving his original maximum

sentences when he was arrested in connection with the new criminal offense.

Regardless of his eligibility for bond or his ability to furnish it, defendant

remained in jail because he was serving those earlier sentences. Accordingly, the

33
Under Warda, supra at 336-337, if

a statute empowers a governmental agency to undertake a
discretionary decision, and provides no limits to guide either the
agency’s exercise of that discretion or the judiciary’s review of that
exercise, the decision is not subject to judicial review absent an
allegation that the exercise of that discretion was unconstitutional.
40
jail credit statute, MCL 769.11b, does not apply. The sentencing court lacked

authority to grant defendant credit against his new minimum sentence because

doing so would be inconsistent with the statutory scheme. Finally, denial of credit

against defendant’s new minimum sentence did not subject him to multiple

punishments for the same offense, and he has failed to show that the denial of

credit against his new minimum sentence violated equal protection.

Affirmed.

Maura D. Corrigan
Elizabeth A. Weaver
Robert P. Young, Jr.
Diane M. Hathaway

41
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 137301

PATRICK LAWRENCE IDZIAK,

Defendant-Appellant.

KELLY, C.J. (concurring in part and dissenting in part).

I agree with the majority that a parolee incarcerated on new criminal

charges is not entitled to jail credit under MCL 769.11b. If the parolee is

convicted, the court may not award credit against the sentence it imposes for time

the parolee spent in jail awaiting trial. But I reach that conclusion for different

reasons than the majority finds appropriate.

In this case, I believe that the 98 days defendant served in jail should have

been considered time served toward the minimum term calculated under MCL

791.234.1 The existing application of the consecutive sentencing scheme may also

be unconstitutional as applied to similarly situated parolees.

1
MCL 791.234 determines when the Parole Board acquires jurisdiction to
parole a prisoner serving consecutive indeterminate sentences.
 THE CONSECUTIVE SENTENCING STATUTES

Persons who are convicted of offenses committed while they are on parole

are automatically subject to consecutive sentences under MCL 768.7a(2), which

provides:

If a person is convicted and sentenced to a term of
imprisonment for a felony committed while the person was on parole
from a sentence for a previous offense, the term of imprisonment
imposed for the later offense shall begin to run at the expiration of
the remaining portion of the term of imprisonment imposed for the
previous offense.

MCL 791.234 specifies how consecutive sentences must be calculated.2

MCL 791.234(3) states:

If a prisoner other than a prisoner subject to disciplinary time
is sentenced for consecutive terms, whether received at the same
time or at any time during the life of the original sentence, the parole
board has jurisdiction over the prisoner for purposes of parole when
the prisoner has served the total time of the added minimum terms,
less the good time and disciplinary credits allowed by statute. The
maximum terms of the sentences shall be added to compute the new
maximum term under this subsection, and discharge shall be issued
only after the total of the maximum sentences has been served less
good time and disciplinary credits, unless the prisoner is paroled and
discharged upon satisfactory completion of the parole.

Finally, MCL 791.238(6) states that a parolee is considered to be serving

his or her sentence while on parole:

2
All analyses of MCL 791.234(3) in this opinion apply with equal force to
MCL 791.234(4), which concerns prisoners subject to disciplinary time. The two
subsections are identical with respect to when the parole board has jurisdiction and
the calculation of a new maximum term. MCL 791.234(3) merely alters the
calculation to account for good time or disciplinary credits, which are not
available for prisoners subject to disciplinary time under MCL 791.234(4).
2
 A parole shall be construed as a permit to the prisoner to
leave the prison, and not as a release. While at large, the paroled
prisoner shall be considered to be serving out the sentence imposed
by the court and, if he or she is eligible for good time, shall be
entitled to good time the same as if confined in a state correctional
facility.

Discerning how to correctly give force to each of these statutes is a difficult

task. Unlike the majority, I do not agree that existing practices give proper effect

to the statutory language. I believe than the key to the correct interpretation is the

timing of the Parole Board’s calculation of a consecutive sentence under MCL

791.234(3).

Application of the Sentencing Statutes

MCL 768.7a(2) provides for consecutive sentences for all paroled offenders

who are convicted of and sentenced for a new felony committed while they were

on parole for their original offense. Once the parolee is sentenced for the new

offense, the Parole Board calculates the date when he or she will again be eligible

for parole pursuant to MCL 791.234(3).

Under MCL 791.234(3), a prisoner must serve “the total time of the added

minimum terms” before becoming eligible for parole. The parolee’s new parole

eligibility date is computed by considering first how much time the parolee must

serve, then determining how much time the parolee “has served.”

MCL 791.234(3) therefore defines when the Parole Board has jurisdiction

to parole a prisoner serving consecutive indeterminate sentences. It does so by

combining the terms of the old and new sentences into one aggregate term. The

3
minimum and maximum terms of the old and new sentences are added together.

The result is a single term with one minimum and one maximum. The new

minimum and maximum set the new boundaries of the time a prisoner must serve.

It is only when this aggregate, single term has been determined that the

Parole Board can calculate the parolee’s new parole eligibility date.3 Thus,

calculating what constitutes “time served” is inevitably a retroactive exercise.

The Parole Board does not determine a defendant’s new parole eligibility date

until after he or she is sentenced for the new offense.

Under the current practice of the Department of Corrections (DOC), the

minimum sentence of a paroled defendant who offends again does not begin until

the date of sentencing. Consequently, the Parole Board does not acquire

jurisdiction over that defendant until he or she has served the equivalent of the

minimum term of that new offense. That term is measured from the date of

sentencing on the new offense.

However, this practice does not reflect what the statute requires. The

statute mandates only that the prisoner serve an amount of time equal to the added

minimum terms of incarceration. That time served includes (1) time served in

prison on the original offense, (2) time served on parole for the original offense,

3
This conclusion is based on common sense. Until the minimum terms of
a parolee’s consecutive sentences are combined, the Parole Board cannot know
how much minimum time the parolee must serve before again becoming eligible
for parole.
4
according to MCL 791.238(6), and (3) time spent in jail awaiting disposition of

the new charges.

The parties do not dispute that the Parole Board lacks authority to alter a

defendant’s sentence. It cannot add time to the minimum sentence already

served.4 As we have noted:

[C]onsecutive sentences imposed on persons who, while
incarcerated or on escape, commit another crime will commence to
run when the total of the minimum sentences imposed for prior
offenses has been served.[5]

In Wayne Co Prosecutor, we also observed that the “Legislature’s intent in

enacting [MCL 768.7a(2)] was simply to extend the statutory provisions of [MCL

768.7a(1)] to parolees . . . .”6 The Parole Board has not only the authority but a

statutory obligation to use the terms of sentences imposed by courts in order to

calculate both (1) the earliest point at which a prisoner may be released on parole

and (2) the point at which he or she must be discharged from prison.

I conclude that the plain meaning of “total time” in the clause “when the

prisoner has served the total time of the added minimum terms” must apply to all

time served. Generally, no remaining portion remains on a defendant’s minimum

term when he or she is paroled. Therefore, any time served on parole or in jail

4
Normally, a defendant’s minimum sentence has run when he or she is
paroled.
5
Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 580; 548
NW2d 900 (1996) (emphasis in original).
6
Wayne Co Prosecutor, supra at 581.
5
awaiting disposition of new charges should be counted as time served toward the

aggregate minimum sentence. Wayne Co Prosecutor erred to the extent it went

beyond that language and concluded that the consecutive sentence would

commence immediately upon the parolee’s new offense. That conclusion does not

take into account the timing of the Parole Board’s calculation of a defendant’s

added minimum terms under MCL 791.234(3).

My interpretation is consistent with this Court’s interpretation of MCL

768.7a(2) and truer to its holding in Wayne Co Prosecutor. In that case, we also

held that

the “remaining portion” clause of [MCL 768.7a(2)] requires the
offender to serve at least the combined minimums of his sentences,
plus whatever portion, between the minimum and the maximum, of
the earlier sentence that the Parole Board may, because the parolee
violated the terms of parole, require him to serve.[7]

We therefore rejected the prosecutor’s argument that MCL 768.7a(2)

requires a prisoner to serve his or her entire original maximum sentence before

beginning to serve his or her new minimum sentence. Under MCL 791.234(3), the

Parole Board lacks jurisdiction over the prisoner for the purposes of parole until he

or she reaches the new parole eligibility date. However, after the prisoner is

sentenced for the new offense, the Parole Board clearly has the authority to require

the prisoner to serve an additional portion of the original maximum sentence. This

is due to his or her parole violation. As indicated by the use of the permissive

7
Wayne Co Prosecutor, supra at 584.
6
language from Wayne Co Prosecutor, “may . . . require him to serve,” the Parole

Board need not add time.

In current practice, however, the Parole Board does not make such a

decision. It passively treats time served in prison before sentencing for a new

offense, however long that may be, as time served for the defendant’s parole

violation.8 But this time served is currently counted only toward the defendant’s

original maximum sentence.9 I believe that this policy does not constitute a

discretionary decision. Therefore, I believe Warda v Flushing City Council10 is

not applicable.

I believe that the Parole Board may exercise its discretion to decide whether

a prisoner eligible for parole will serve additional time in prison because of a

parole violation. However, I also believe that such an affirmative and

8
The DOC’s policy states that “[a] parolee convicted of a felony while on
parole who receives a new sentence to be served with the Department shall be
found to have violated parole based on that new conviction and sentence. A
parole revocation hearing is not required.” MDOC Policy Directive 06.06.100,
§ T, effective February 26, 2007. The policy does not address the issue of how
much additional time must be served in prison for the parole violation.
9
This policy directly contravenes MCL 791.234(3) as well as the statement
from Wayne Co Prosecutor that consecutive sentences begin running when the
total of the minimum sentences imposed for prior offenses has been served. See
my previous discussion of Wayne Co Prosecutor.
10
Warda v Flushing City Council, 472 Mich 326; 696 NW2d 671 (2005).
There, the majority held that discretionary decisions made by legislative and
executive agencies are unreviewable by the courts. However, the Warda majority
also noted that “[w]here decision-making falls outside the scope of such
discretion, such decision-making would be fully subject to judicial review.” Id. at
333 n 3.
7
individualized determination is the only proper mechanism for requiring the

prisoner to serve additional time only toward his maximum term. The DOC’s

current practice also raises troubling questions about the constitutionality of its

treatment of similarly situated individuals.11

Criticisms of My Approach

I disagree with the majority and Justice Markman that my interpretation

contravenes consecutive sentencing. When someone has been convicted of

multiple offenses and received a consecutive sentence, time he or she serves is not

credited to the minimum sentences for more than one conviction. In contrast,

under a concurrent sentence, any time served is applied to all prisoners’ minimum

sentences.

Under my interpretation of MCL 769.11b, consistent with a consecutive

sentence, a prisoner’s time served would never be applied toward more than one

minimum sentence. Time served would not be applied toward the second

minimum sentence until the first minimum sentence had been served. Time

served might be applied against the minimum term of a new sentence and the

maximum term of the old sentence at the same time. But, under Michigan’s

indeterminate sentencing scheme, minimums and maximums are often served

11
See the constitutional arguments section later in this opinion.
8
concurrently, even when consecutive sentencing applies.12 Indeed, the current

application of MCL 791.234(3) applies time served by reoffending parolees to

satisfy the minimum sentence of the new offense and the maximum sentence of

the old offense simultaneously. This occurs because the maximum sentence for

the old offense has not been served when the convict is resentenced. The time left

is incorporated into the offender’s new combined maximum sentence.

Moreover, I disagree with the majority opinion that my interpretation is

undermined by MCL 791.238(6). As discussed previously, the Parole Board has

no authority to alter a defendant’s sentence. A defendant’s early release date is

not calculated until after the minimum and maximum terms of both consecutive

sentences have been added together. I believe that all the time that a defendant has

served should be applied toward that aggregate term, as calculated by the Parole

Board pursuant to MCL 791.234(3). I reject the majority’s contention that the

Legislature intended that time spent on parole should count only toward the

sentence imposed by the court before the prisoner was paroled.13

12
In Wayne Co Prosecutor, this Court rejected the argument that
Michigan’s consecutive sentencing scheme requires offenders to serve the entire
maximum sentence of their original offense before beginning a new minimum
sentence. Wayne Co Prosecutor, supra at 579-584.
13
The majority’s observation that the word “imposed” is written in the past
tense does not undercut my conclusion. The timing of the Parole Board’s
determinations is the focal point. Because time served is calculated after a
prisoner’s minimum terms are added together, the prisoner’s time spent on parole
is time served on the sentence “imposed”—past tense—by the court.
9
 The majority’s conclusions are premised on an erroneous assumption: A

prisoner serving an existing prison term while awaiting trial for a new offense

cannot be considered to be serving time toward a new sentence that is imposed

after the trial. The error in this assumption is illustrated by examining the

application of jail credit to the sentences of first-time offenders. While a first-time

offender is in jail awaiting trial, he is not serving his sentence. He has not yet

been convicted, and there is no sentence to serve. But once convicted, he is

considered to have been serving the sentence while in jail awaiting trial.

Similarly, while a parolee is incarcerated awaiting trial for new criminal

conduct, he or she cannot be serving his or her new sentence because it does not

yet exist; he or she is only serving his or her prior sentence. But once the second

sentence has been imposed, MCL 791.234(3) becomes operative. Only at that

point can the new aggregate term governing the prisoner’s incarceration be

computed. The minimum terms of both sentences are added together, as are the

maximum terms of both sentences.

At that point, it is relevant to ask, with respect to parole eligibility and

maximum discharge dates, how much time the prisoner has served. MCL

791.238(6) indicates that the parolee is considered to have been serving his

sentences while on parole. That none of the sentences existed at the time he was

10
deemed to be serving them is not inherently problematic.14 The same result occurs

with the award of jail credit to a first-time offender. While in jail, a first-time

offender is similarly considered to have been serving a sentence that did not yet

exist.

The “sentence imposed by the court” referenced in MCL 791.238(6) should

not be given the overly restrictive meaning that the majority ascribes to it.15 This

is made clear by MCL 8.3b, which provides that in construing statutes,

[e]very word importing the singular number only may extend to and
embrace the plural number, and every word importing the plural
number may be applied and limited to the singular number.

14
While vigorously and repeatedly protesting that “the plain language of
MCL 791.238(6)” does not allow such a result, the majority provides scant support
for why this is so. Indeed, its sole basis for this conclusion is that my
interpretation would contravene consecutive sentencing. As explained earlier in
this opinion, I disagree that my approach contravenes consecutive sentencing.

15
The majority advances one additional reason why my opinion is contrary
to the plain language of MCL 791.238(6). Apparently, the majority would require
that a statute affirmatively state that a prisoner may be credited for time served
before the sentencing offense was committed. Otherwise, that result cannot be a
feasible interpretation. Ante at 29-30 & n 25. I reject the notion that absent
statutory language stating “a prisoner may be credited for time served before the
sentencing offense was committed,” one cannot discern such an interpretation. As
noted, an analysis of the applicable statutes in context with one another supports
such an interpretation. Moreover, MCL 791.238(6) specifically does provide,
without limitation, that prisoners on parole are “serving out the sentence imposed
by the court . . . .”

The majority’s limitation on MCL 791.238(6) never gives effect to the
timing of the Parole Board’s calculation of time served. Nor does the majority
squarely address that when read together, MCL 791.234 and MCL 791.238(6)
require that all time served count as time served toward a prisoner’s added
minimum terms.
11
Thus, even though MCL 791.238(6) refers to a single sentence, it may properly be

considered to reference multiple sentences, including those being served

consecutively.

Furthermore, MCL 791.238(6) credits all parolees for time served while on

parole, whether they are serving two sentences imposed consecutively, or three or

more. Another example illustrates how this occurs. A prisoner is paroled from a

single sentence and receives a consecutive sentence for a new felony committed

while on parole. The prisoner is paroled again and commits a third felony

resulting in a third consecutive sentence. In what sense was the prisoner serving

out the “sentence imposed by the court”? Quite literally, the prisoner was not

actually serving a single sentence imposed by a court. Rather, the prisoner was

serving a combined term of imprisonment computed by the DOC under MCL

791.234(3) after the prisoner’s second offense. This combined term is an

aggregate term with added minimums and added maximums. That combined term

included two sentences imposed by the court as its component parts. Thus, it is

not a failure of logic to read MCL 791.238(6) to mean that, while on parole,

parolees are serving sentences imposed by the court. They are serving all of them,

including the one imposed for the most recent episode of new criminal conduct

committed while on parole.

12
 I also disagree with the assertion in the majority’s and Justice Markman’s

opinions that my interpretation leads to “illogical” or “anomalous” results.16 Most

of this criticism is that my interpretation could result in a repeat offender being

deemed eligible for parole immediately upon being sentenced for a new offense.

Clearly, such a situation could occur. But, of course, the Parole Board always has

the discretion not to grant parole. Therefore, the situation does not constitute the

absurd result of a repeat offender likely being paroled without serving time for a

second offense. Certainly, it does not warrant disregarding the statutory language.

I offer this hypothetical example by way of illustration of what MCL

791.234(3) requires: An offender is sentenced to 1 to 10 years in prison. The

offender is granted parole after serving the minimum sentence. No time remains

on the minimum sentence, and 9 years remain on the maximum sentence. After 2

years on parole, the offender commits an act that gives rise to a new felony charge.

The offender is immediately arrested and jailed. At that time, the offender has 7

years remaining to serve on the maximum sentence.

The offender then spends 1 year in jail awaiting trial, conviction, and

sentencing on the new offense. Accordingly, on the sentencing date, 6 years

remain to be served on the original maximum term.

The offender receives a 7- to 15-year term of imprisonment for the new

offense. Under MCL 791.234(3), the DOC calculates the new parole-eligibility

16
Ante at 27, 32; post at 22 n 9.
13
date by adding the new minimum term (7 years) and the minimum term of his

original sentence (1 year). His new minimum term is 8 years. The DOC

calculates the new maximum discharge date by adding the new maximum

sentence (15 years) to the original maximum sentence (10 years). Thus, the

offender’s new maximum sentence is 25 years.17

The key question is how much time has the offender served toward this

newly calculated 8- to 25-year term by the time the DOC calculates it? I conclude

that under a plain reading of MCL 791.234(3), the offender has served 4 years of

that sentence: 1 in prison on the original offense, 2 on parole, and 1 while

incarcerated awaiting trial for the new offense. Therefore, in the hypothetical

example, the offender is eligible for parole 4 years after sentencing for the new

offense.

THE JAIL CREDIT STATUTE

MCL 769.11b provides:

Whenever any person is hereafter convicted of any crime
within this state and has served any time in jail prior to sentencing
because of being denied or unable to furnish bond for the offense of
which he is convicted, the trial court in imposing sentence shall
specifically grant credit against the sentence for such time served in
jail prior to sentencing.

17
All the parties agree that it is the court that sets the terms of the
respective judgments of sentence that the DOC uses to determine the new
minimum and maximum terms.
14
I agree with the majority that this statute does not apply to parolees who offended

again and spend time in jail awaiting disposition of the new charges against them.

But my rationale is different. Because the time served in jail counts as “time

served” on the aggregate minimum term calculated by the DOC, a parolee is not

entitled to other credit for such time. If the parolee were to receive credit against

the court’s sentence for the offense committed while on parole, the parolee would

receive double credit for the same time. This Court has consistently rejected this

outcome in other contexts.18

CONSTITUTIONAL ARGUMENTS

Members of this Court, including myself, have previously observed that the

practices at issue appear to arbitrarily treat similarly situated parolees differently,

presenting potential violations of those individuals’ constitutional rights.19 As the

majority correctly observes, defendant here does not specifically challenge the

practices of the DOC but argues that the judicial practice of denying jail credit to

parolees is unconstitutional. Because I conclude that MCL 791.234(3) requires

time served in jail under these circumstances to count toward a defendant’s new

minimum sentence, I need not reach defendant’s constitutional arguments.

Because a majority of the Court rejects my reading of the statutes, however,

I am compelled in dissenting to remark on the possible constitutional violation

18
See, e.g., People v Patterson, 392 Mich 83; 219 NW2d 31 (1974).
19
People v Wright, 474 Mich 1138 (2006) (Markman, J., dissenting);
People v Conway, 474 Mich 1140 (2006) (Kelly, J., dissenting).
15
presented by the current scheme. The current treatment of parolees’ time served

is, in my view, so irrational and arbitrary as to risk failing constitutional muster.

Parolees who commit identical crimes and who receive identical sentences may

serve vastly different sentences solely on the basis of the date of sentencing. The

date sentencing occurs is influenced by factors outside the parolee’s control,

including docket congestion, a judge’s illness or vacation time, or the prosecutor’s

speed in pursuing the case. The current system allows these factors to determine

how much time served is credited against a convict’s sentences, and it results in

disparate treatment.

Equally troubling are circumstances where there is a disparity in sentencing

dates because a parolee exercises his or her constitutional right to a trial on his or

her second offense. The majority is correct that “there is no per se rule against

encouraging guilty pleas . . . .”20 However, I submit that the current practice of

applying time served may be unconstitutional because the disparate treatment and

resulting promotion of guilty pleas is “‘needless.’”21

Finally, I take note that courts have expressed objections to the present

practice for almost 20 years,22 yet neither the Legislature nor the DOC has

20
Ante at 24, quoting Corbitt v New Jersey, 439 US 212, 218-219; 99 S Ct
492; 58 L Ed 2d 466 (1978).
21
Corbitt, supra at 219 n 9.
22
See, e.g., People v Watts, 186 Mich App 686, 691 n 4; 464 NW2d 715
(1991) (“[T]his inequitable situation could be resolved in a number of ways . . . .
For that matter, a strict reading of MCL 791.234(2); MSA 28.2304(2) could be
16
addressed it. I would not allow their failure to grasp the nettle to prevent us from

finally doing so today.

CONCLUSION

I agree with the majority that MCL 769.11b does not apply to parolees held

in prison on new criminal charges. However, I reach this conclusion because time

served in jail awaiting disposition of new charges should be considered time

served toward a defendant’s aggregate minimum term under MCL 791.234(3).

Finally, I am concerned that the existing application of the statutory scheme to

prisoners who offend again while on parole is unconstitutional.

Therefore, I would direct the Parole Board to recalculate defendant’s parole

eligibility date using the analysis herein.

Marilyn Kelly
Michael F. Cavanagh

applied, the two minimum terms added together, and the parole date calculated
accordingly. . . . [W]hile we urge the Legislature to address this issue, we decline
to do so ourselves.”). Justice Weaver was on the Court of Appeals panel that
decided Watts.
17
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 137301

PATRICK LAWRENCE IDZIAK,

Defendant-Appellant.

MARKMAN, J. (dissenting).

I respectfully disagree with the majority’s conclusion that MCL 769.11b,

the “jail credit” statute, is inapplicable to a defendant who spends time in jail

awaiting sentencing for a new crime committed while he is on parole. In

accordance with MCL 769.11b, “any person” is entitled to jail credit when he is

“denied or unable to furnish bond for the offense of which he is convicted . . . .”

(Emphasis added.) Because a defendant who commits a new crime while on

parole is unquestionably “unable” to furnish bond for the new offense for which

he is convicted, he is entitled to jail credit. Contrary to the majority’s view, it is of

no consequence whether a defendant was unable to furnish bond “because of” a

parole detainer, as defendant here was, as long as he was unable to post bond “for

the offense of which he was convicted . . . .” Thus, defendant should have

received 98 days of jail credit toward the sentence for his new offense for the time

he spent incarcerated while awaiting sentencing on his new offense. However, the
majority not only disallows the award of jail credit under MCL 769.11b, but it

does so without fully addressing the very significant problem of arbitrariness that

arises under its interpretation. That is, the majority’s interpretation leads to a

situation in which identically situated defendants may be treated in a widely

disparate fashion on the basis of entirely serendipitous factors, such as an assistant

prosecutor’s diligence or a judge’s vacation schedule. Because I believe the

majority has erred in its interpretation of the relevant statutes, I dissent.

I. ANALYSIS

The ultimate issue in this case is whether, under MCL 769.11b, defendant

is entitled to jail credit for the time he was incarcerated awaiting sentencing for a

crime he committed while on parole. Because a proper resolution of this issue

involves the interrelation of several different statutes, I will begin this analysis by

providing an overview of how the parole process operates and will then discuss

how the relevant statutes relate to one another by applying these provisions to a

hypothetical defendant.

A. Parolees and Time Served

As a general matter, when a defendant is convicted of a felony, he is

sentenced to an indeterminate term of imprisonment and is incarcerated, thereby

being placed in the custody of the Michigan Department of Corrections (DOC).

He then begins serving his sentence, and the date of his parole eligibility is

determined by MCL 791.234(1), which provides:

2
 Except as provided in [MCL 791.234a], a prisoner sentenced
to an indeterminate sentence and confined in a state correctional
facility with a minimum in terms of years other than a prisoner
subject to disciplinary time is subject to the jurisdiction of the parole
board when the prisoner has served a period of time equal to the
minimum sentence imposed by the court for the crime of which he
or she was convicted, less good time and disciplinary credits, if
applicable.

Thus, once the defendant serves an amount of time “equal to the minimum

sentence,” he is eligible for parole and may be paroled by the Parole Board (the

Board). Assuming the Board grants the defendant parole, he then becomes a

parolee and, according to MCL 791.238(6), continues to serve out the unexpired

portion of his sentence while on parole. MCL 791.238(6) provides: “A parole

shall be construed as a permit to the prisoner to leave the prison, and not as a

release. While at large, the parole prisoner shall be considered to be serving out

the sentence imposed by the court.”

To illustrate how these statutes operate together, assume a defendant has

been convicted of a crime and is sentenced to a term of 5 to 10 years’

imprisonment. After serving the minimum 5-year term, the defendant becomes

eligible for parole, and the Board decides to grant the defendant parole, thereby

making him a parolee. The parolee spends 1 year on parole and then commits a

new crime, which means that he has now served a total of 6 years on his original

5- to 10-year sentence. However, once he is incarcerated for allegedly committing

a new offense, the “unexpired portion” of the initial sentence, along with how the

3
parolee’s time spent in jail pending a determination of whether he violated his

parole is allocated, is determined, in part, by MCL 791.238, which states:

(1) Each prisoner on parole shall remain in the legal custody
and under the control of the department. . . . Pending a hearing upon
any charge of parole violation, the prisoner shall remain
incarcerated.

(2) A prisoner violating the provisions of his or her parole and
for whose return a warrant has been issued by the deputy director of
the bureau of field services is treated as an escaped prisoner and is
liable, when arrested, to serve out the unexpired portion of his or her
maximum imprisonment. The time from the date of the declared
violation to the date of the prisoner’s availability for return to an
institution shall not be counted as time served.

Notably, subsection 2 only states that a parolee, after being reincarcerated, is

“liable” to serve out the “unexpired portion” of his first offense, not that he

automatically resumes serving that term. Being “liable” to serve out the unexpired

portion of the original sentence is not, as assumed by the majority, the equivalent

of automatically continuing to serve that sentence, as a parolee does while he

remains on parole.1 See MCL 791.238(6). This conclusion is supported by the

1
The majority concludes that a defendant who is arrested for committing a
new crime while on parole automatically continues serving his original sentence
using the following analysis:

Because a paroled prisoner is considered to be serving his
sentence as long as he remains in compliance with the terms of his
parole, MCL 791.238(6), except “from the date of the declared
violation to the date of the prisoner’s availability for return to an
institution,” MCL 791.238(2), the second part of MCL 791.238(2)
establishes that the time after “the date of the prisoner’s availability
for return to an institution” is to be counted as time served against
the parolee’s original sentence. [Ante at 16.]

4
distinctive language of MCL 791.238(6) and MCL 791.238(2), each of which

establish, in a different context, when a defendant is and is not considered to be

serving out his original sentence.

In MCL 791.238(6), the Legislature specifically required that a prisoner

“shall” be considered serving out the unexpired portion of his initial sentence

while on parole. MCL 791.238(2), on the other hand, only states that a parolee is

“liable” to serve out the “unexpired portion” of his first sentence, but does not

require that he automatically resume serving that unexpired portion. MCL

791.238(2) also clarifies, using mandatory language (“shall not”), when a parolee

is not to receive credit toward his original sentence. If the Legislature had

intended that a parolee who is arrested for a new crime while on parole

automatically continues serving time toward the sentence for his first offense, it

could have used the same definite language (“shall”) as it did in MCL 791.238(6).

However, because MCL 791.238(2) instead uses permissive language (“is

liable . . . to serve”), rather than the same mandatory language used in MCL

791.238(6), it becomes necessary to examine whether a defendant is actually

Although the majority’s assumption that a prisoner resumes serving time on his
original sentence as soon as he becomes available for return to the institution is not
unreasonable when MCL 791.238(2) is read independently of other relevant
statutes, the majority’s interpretation of MCL 791.238(2), in conjunction with the
jail credit statute and other relevant statutory provisions, strongly suggests that this
analysis is incorrect. More specifically, as will be discussed in part I(C) infra, a
defendant who violates parole by committing a new crime cannot serve his new
sentence concurrently with his original sentence. See MCL 768.7a(2). Thus,
when a prisoner receives jail credit toward the sentence for his new offense, he
cannot also be serving time toward the sentence for his original offense.

5
serving time toward his original sentence when he is arrested for a new crime

while on parole. The answer to this question depends on whether the defendant’s

parole violation ultimately leads to a subsequent conviction of another crime for

which jail credit can apply.

If a defendant is arrested because of a parole violation that does not

constitute a new criminal offense, and the Parole Board requires the defendant to

serve an additional amount of the unexpired portion of his first sentence, then

there is no question that any time the parolee spends reincarcerated must be

credited as time served toward his original sentence because there is no other

sentence to which that time can be credited. However, if a defendant is arrested

for a new crime while on parole, MCL 768.7a(2), as discussed in part I(C) infra,

prohibits the defendant from serving his original and new sentence concurrently,

which means that the only way to know if the defendant is serving time toward his

original sentence is to determine if the parolee will receive jail credit for his new

sentence once he is convicted. If he does receive jail credit, then despite the fact

that he remains liable to serve out the unexpired portion of his initial sentence, he

will not have actually been doing so during the time he was reincarcerated. Thus,

in order to determine whether a defendant who is arrested for committing a new

crime will be entitled to credit for time served on his original sentence for which

he remains liable, it becomes necessary to determine whether a defendant in this

situation receives jail credit toward his new sentence.

6
 B. Jail Credit

The jail credit statute, MCL 769.11b, states:

Whenever any person is hereafter convicted of any crime
within the state and has served any time in jail prior to sentencing
because of being denied or unable to furnish bond for the offense of
which he is convicted, . . . [the court] shall specifically grant credit
against the sentence for such time served in jail prior to sentencing.

MCL 769.11b applies to “any person,” not just non-parolees who spend time in

jail awaiting trial. Additionally, the jail credit statute applies to a variety of

situations by requiring that “any” defendant “shall” be awarded jail credit when he

is incarcerated awaiting sentencing “because of being denied or unable to furnish

bond for the offense of which he is convicted . . . .” The statute is silent with

respect to the reason that a defendant is being held, and only requires that he spend

time in jail “because of being denied or unable to post bond for the offense of

which he is convicted,” which means that a defendant is entitled to jail credit on

his new sentence as long as he cannot post bond for the new offense, regardless of

the reason. However, the majority, by relying on this Court’s decision in People v

Prieskorn, 424 Mich 327; 381 NW2d 646 (1986), which interpreted the jail credit

statute in a similar context, construes MCL 769.11b as requiring that a defendant

be denied or unable to post bond because of the offense for which he is convicted

in order to be eligible for jail credit.2 Prieskorn held:

2
The majority states:

7
 We believe the sentence credit statute neither requires nor
permits sentence credit in cases, such as the one before us, where a
defendant is released on bond following entry of charges arising
from one offense and, pending disposition of those charges, is
subsequently incarcerated as a result of charges arising out of an
unrelated offense or circumstance and then seeks credit in the former
case for that later period of confinement.

***
We agree that the primary purpose of the sentence credit
statute is to “equalize as far as possible the status of the indigent and
less financially well-circumstanced accused with the status of the
accused who can afford to furnish bail.”

***
Had the Legislature intended that convicted defendants be
given sentence credit for all time served prior to sentencing day,
regardless of the purpose for which the presentence confinement was
served, it would not have conditioned and limited entitlement to
credit to time served “for the offense of which [the defendant] is
convicted.” [Id. at 340-341 (citation omitted).]

In other words, the majority agrees with Prieskorn’s reasoning, which

subtly alters the statute by requiring that a defendant must be denied or unable to

[W]e hold that the jail credit statute does not apply to a
parolee who is convicted and sentenced to a new term of
imprisonment for a felony committed while on parole because, once
arrested in connection with the new felony, the parolee continues to
serve out any unexpired portion of his earlier sentence unless and
until discharged by the Parole Board. For that reason, he remains
incarcerated regardless of whether he would otherwise be eligible for
bond before conviction on the new offense. He is incarcerated not
“because of being denied or unable to furnish bond” for the new
offense, but for an independent reason. [Ante at 12-14 (emphasis
added).]

Again, however, the statute says nothing about the “reason” that a defendant is
unable to post bond or has his bond denied; rather, it applies as long as he is
actually denied or unable to furnish bond. It is simply irrelevant under MCL
769.11b that a defendant is unable to post bond because of a parole detainer.

8
post bond for a reason attributable to the new offense. Prieskorn’s analysis is

flawed for two reasons. First, Prieskorn’s initial premise, i.e., that the jail credit

statute was intended to equalize the existing disparate treatment between indigent

and non-indigent defendants, is incorrect. MCL 769.11b simply states that “any

person” who is “denied or unable to furnish bond for the offense of which he is

convicted” is entitled to jail credit on the sentence for the new offense. The statute

does not state that its purpose is to remedy differing treatment of indigent and non-

indigent defendants. Indeed, the requirement of MCL 769.11b that any person be

awarded jail credit if the person is “denied or unable to furnish bond” conclusively

rebuts Prieskorn’s suggested purpose. That is, although a defendant may be

unable to furnish bond because of indigency, he is never denied bond for that

reason. Thus, the majority’s resolution of whether MCL 769.11b applies to

defendant in this case cannot rely on Prieskorn’s stated purpose.

Second, Prieskorn quoted the jail credit statute out of context by stating

that the Legislature “conditioned and limited entitlement to credit to time served

‘for the offense of which [the defendant] is convicted.’” Id. at 341. A full reading

of MCL 769.11b reveals that no such condition or limitation exists. MCL 769.11b

merely requires that jail credit be awarded if a defendant is “unable to furnish

bond for the offense of which he is convicted . . . .” Requiring that a defendant be

unable to post bond “for” an offense is significantly different from stating that a

defendant can only receive credit based on “time served for the offense.” In

essence, both Prieskorn and the majority rewrite the phrase “denied or unable to

9
furnish bond for the offense of which he is convicted” to say “unable or denied

bond because of the offense for which he was convicted.” This is not an

interpretation consistent with the actual statute, and I therefore reject it.

MCL 769.11b only requires that, if a defendant is incarcerated awaiting

trial and is “denied or unable to furnish bond for the offense of which he is

convicted,” then he “shall” be awarded jail credit. The statute does not place an

additional qualification or restriction on a defendant’s right to receive jail credit by

stating that the denial or inability to furnish bond must be because of the new

crime. As a result, in a situation in which a defendant is arrested for a new crime

while on parole, the defendant will be “unable to furnish bond for the offense of

which he is convicted” because of a parole detainer that is placed on him by the

DOC.3 Further, if a defendant requests bond, it will be “denied” by the trial court

for the same reason, in which case he will then be “unable” to post bond due to the

denial. Thus, when a defendant is arrested for a new crime while on parole, and is

ultimately convicted, as was defendant in this case, he is entitled to jail credit.

If, however, a parolee is not actually convicted of the newly charged

offense, then he obviously cannot be awarded jail credit because there is no new

“offense of which he is convicted.” In that situation, the Parole Board must then

make a new determination regarding how much of the “unexpired portion” of the

3
A parole detainer is levied on defendants who are arrested while on
parole. The detainer prevents a defendant from being released from confinement
until the Parole Board makes its determination of how much time he must serve on
the “unexpired portion” of his original offense. See MCL 791.238(1) and (2).

10
defendant’s original sentence must be served before the defendant can once again

be paroled. See MCL 791.233; MCL 791.233e; MCL 791.234(11); MCL

791.238(2). If the Board determines that the defendant does have to serve an

unexpired portion of his initial sentence, the defendant will then be awarded credit

for time served on his original sentence. It is only in this scenario in which a

defendant who is “liable” to serve the “unexpired portion” of his initial sentence

under MCL 791.238(2) that the defendant must receive credit for time served

toward his original sentence. Once the defendant serves that additional portion of

his original sentence, he can be paroled again and, upon successful completion,

have his sentence discharged. MCL 791.234(3) and (4).

Returning to the scenario in which the defendant has committed a new

crime while on parole, assume that the defendant spends exactly 1 year in jail

between the time of his arrest and sentencing. During that time, the defendant is

unable to post bond because of a parole detainer. Similarly, if the defendant does

request bond, it will be denied by the trial court for the same reason. After being

convicted of the new crime, the defendant is sentenced to a new 5- to 10-year term

of imprisonment. The question then becomes whether the 1-year period that the

defendant spent in jail is credited toward the original or new sentence. Recall that

MCL 791.238(2) renders the reincarcerated defendant “liable” to serve out the

“unexpired portion” of his original sentence. Additionally, the Parole Board does

not make its determination of how much, if any, additional time the defendant

must serve on his original sentence until he is convicted or acquitted of the new

11
crime.4 Thus, the determination whether to allocate the time a defendant spent in

jail as time served on his original sentence or as jail credit toward his new

4
When a defendant violates his parole by engaging in conduct other than
committing a new criminal offense, the Parole Board is required to hold a series of
hearings under MCL 791.239a (“probable cause” hearing) and MCL 791.240a
(“parole revocation” hearing). However, when a defendant violates his parole by
committing a felony or misdemeanor punishable by imprisonment, MCL 791.240a
implicitly allows a formal trial, or acceptance of a plea agreement, to serve as a
substitute. MCL 791.240a(3) states:

Within 45 days after a paroled prisoner has been returned or
is available for return to a state correctional facility under accusation
of a parole violation other than conviction for a felony or
misdemeanor punishable by imprisonment under the laws of this
state, the United States, or any other state or territory of the United
States, the prisoner is entitled to a fact-finding hearing on the
charges before 1 member of the parole board or an attorney hearings
officer designated by the chairperson of the parole board. [Emphasis
added.]

In light of this provision, the DOC enacted guidelines. The most recent version
provides, in pertinent part:

M. A parolee who is charged with violating a condition of
parole is entitled to a preliminary parole revocation hearing
conducted pursuant to Administrative Rule 791.7740 through
791.7750 to determine if there is probable cause to believe that s/he
violated parole except under the following circumstances:

1. The parolee has been bound over to the Circuit Court on a
criminal charge for which s/he also is charged with parole violation.
In such cases, probable cause for that parole violation charge is
established based on the court’s action. . . .

2. The parolee has been convicted of a criminal charge for
which s/he also is charged with parole violation. This includes a
conviction by trial or by guilty or nolo contendre [sic] (i.e., no
contest) plea. In such cases, probable cause for that parole violation
charge is established based on the conviction.

12
sentence can only be made at the time of sentencing for the new crime, or shortly

before, because the trial court may only award jail credit at sentencing and not at

any time thereafter. Here, the hypothetical defendant was sentenced to a new term

of imprisonment on the basis of his new criminal offense and was unable to

furnish bond for this new offense while he was awaiting trial. Therefore, the

parole credit statute applies, and the defendant is awarded 1 year of jail credit

toward his new offense. However, awarding jail credit creates a tension between

MCL 769.11b and the consecutive sentencing statute, MCL 768.7a(2), which

requires that a defendant serve the “remaining portion” of his original sentence

before beginning his new sentence, as described below.

C. Consecutive Sentencing and Parole Eligibility

After awarding jail credit to a defendant who was incarcerated for

committing a new offense while on parole, it becomes necessary to examine MCL

768.7a(2), which establishes a consecutive sentencing requirement as follows:

***

T. A parolee convicted of a felony while on parole who
receives a new sentence to be served with the Department shall be
found to have violated parole based on that new conviction and
sentence. A parole violation hearing is not required. [DOC Policy
Directive No. 06.06.100, Parole Violation Process (February 26,
2007) (emphasis in original).]

Thus, because the Board does not determine whether parole will be revoked until a
defendant has been convicted, or has accepted a plea agreement, for a new crime,
the Board necessarily does not compute how much time the defendant will be
required to serve on his unexpired original sentence until that time as well.

13
 If a person is convicted and sentenced to a term of
imprisonment for a felony committed while the person was on parole
from a sentence for a previous offense, the term of imprisonment
imposed for the later offense shall begin to run at the expiration of
the remaining portion of the term of imprisonment imposed for the
previous offense.

The pivotal component of this provision is that a defendant’s “term of

imprisonment imposed for the later offense shall begin to run at the expiration of

the remaining portion of the term of imprisonment imposed for the previous

offense.” At first glance, awarding jail credit for a defendant’s second sentence

before he has completed the remaining portion of his first sentence appears

inconsistent with the consecutive sentencing scheme established by MCL

768.7a(2). Yet, upon a closer evaluation of how the “remaining portion” phrase in

MCL 768.7a(2) relates to MCL 769.11b, this potential conflict is alleviated.

In Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 584; 548

NW2d 900 (1996), this Court interpreted MCL 768.7a(2) and stated:

We conclude that the “remaining portion” clause of [MCL
768.7a(2)] requires the offender to serve at least the combined
minimums of his sentences, plus whatever portion, between the
minimum and the maximum, of the earlier sentence that the Parole
Board may, because the parolee violated the terms of parole, require
him to serve.

As an initial matter, it is important to distinguish the phrase “unexpired portion,”

as used in MCL 791.238(2), from “remaining portion,” as used in MCL 768.7a(2).

The unexpired portion of a sentence is the time that remains on a defendant’s

entire indeterminate sentence and that can be discharged after the defendant

14
successfully completes parole.5 The remaining portion of a defendant’s original

sentence, on the other hand, represents the time that a defendant who violates his

parole would otherwise have to serve in order to be eligible for parole once again

on his original sentence if he had not been sentenced for a new consecutive

sentence, which is why Wayne Co Prosecutor described the “remaining portion”

as the period of time that the Parole Board “may, because the parolee violated the

terms of parole, require him to serve.” Thus, when the Board determines the

remaining portion of a defendant’s original sentence, it is essentially undertaking a

discretionary decision about when the defendant would have been eligible for

parole on his original sentence given the violation he committed while on parole.

5
It should also be noted that the “remaining portion” of the original
sentence is distinct from the concept of “discharge,” see MCL 791.234(3) and (4),
and the concept of “termination,” see MCL 791.234(5). A “discharge” is only
secured after a parolee successfully completes his parole. MCL 791.242; MCL
791.234(3) and (4). In the case of a defendant who has a single sentence, he can
be paroled, successfully complete that parole, and then be discharged. In the case
of a defendant who was on parole for an initial offense and violated his parole by
committing a new crime, the defendant will be required to serve the remaining
portion of his sentence, be paroled, successfully complete parole, and then be
discharged.

The Parole Board’s power to “terminate” a sentence is established by MCL
791.234(5) and is applicable as follows:

If a prisoner other than a prisoner subject to disciplinary time
has 1 or more consecutive terms remaining to serve in addition to the
term he or she is serving, the parole board may terminate the
sentence the prisoner is presently serving at any time after the
minimum term of the sentence has been served.

Thus, serving the remaining portion of the original sentence does not relieve the
defendant of his liability to serve the entire maximum term of that sentence
because the original sentence is neither discharged nor terminated.

15
In other words, MCL 768.7a(2) establishes a sensible requirement that a defendant

who violates his parole should first have to serve out whatever “remaining

portion” he would have to serve on the “unexpired portion” of his original

sentence before the new minimum term on the second offense can begin to run.

Such a requirement ensures that a defendant will serve at least all the minimum

time for each individual consecutive sentence that was imposed.

Therefore, before a defendant who is unsuccessful in completing his parole

because he committed a subsequent crime can begin serving his second sentence,

he must first serve out the remaining portion of his first sentence, which, as noted

by Wayne Co Prosecutor, must be established by the Board’s affirmative

determination of how long the defendant must serve on that sentence.6 Wayne Co

6
That the Parole Board is, according to both Wayne Co Prosecutor and
MCL 768.7a(2), required to make a discretionary determination concerning the
remaining portion of the defendant’s original sentence is of particular significance
in this case. In order for it to render this determination, MCL 791.233e(1) requires
that the DOC establish guidelines “that shall govern the exercise of the parole
board’s discretion . . . as to the release of prisoners on parole under this act,”
which the Board here has done. MCL 791.233e(2) then provides additional
guidance by describing the types of factors that are relevant to making parole
decisions, e.g., the “offense for which the prisoner is incarcerated,” the “prisoner’s
institutional conduct,” “the prisoner’s prior criminal record,” and so forth. These
factors must be evaluated by the Board in determining whether the defendant must
serve any remaining portion on his initial sentence.

However, in practice, the Board seems to have abandoned its responsibility
in this respect by allowing the remaining portion to be established solely by how
long it takes the defendant to proceed to trial, or accept a plea agreement, on the
new offense. Indeed, in its amicus curiae brief, the DOC repeatedly
acknowledged that it does not exercise any discretion in this regard by stating that
“as a matter of policy, the Department does not impose any additional sanction on

16
Prosecutor, 451 Mich at 582 (observing that the Board must make such a

determination, given the Court’s “conclusion that the Legislature did not intend

[MCL 768.7a(2)] to repeal all discretion held by the Parole Board”). Further,

because, the defendant cannot begin serving his second sentence until he has

completed the remaining portion of his original sentence, awarding jail credit in

addition to allocating the time served to the original sentence would allow for

double-counting of the time served, which would result in a concurrent sentence,

in violation of MCL 768.7a(2). Thus, a defendant who violates his parole by

a defendant who violates a parole and is given a new prison sentence”; “the
Department does not exercise its discretion and tack on another period of time on
top of the new established minimum date before an inmate becomes parole
eligible”; and “as a matter of policy, the Department merely recalculates the
sentence under the statutes for the defendant by adding the remaining portions of
the minimum (if any) and the maximum from the original sentence with the
minimum and maximum of the new conviction.” Thus, the Board currently does
not, as required by the statute, the DOC guidelines, and Wayne Co Prosecutor,
make any affirmative determination using the relevant considerations regarding
what amount of time a defendant must serve on the remaining portion of his first
sentence. It is this failure that is currently causing identically-situated defendants
to be treated differently on the basis of entirely arbitrary factors, as discussed in
part II. That is, identically-situated defendants are being required to serve widely
disparate remaining portions of their original sentences on the basis of the
serendipitousness of how long it takes them to proceed to sentencing, regardless of
whether that time has any relation to the severity of the original offense or the new
crime that constitutes the parole violation.

Because the Board concedes that it is not undertaking any decision in this
regard, this Court should, at a minimum, order that it do so. By issuing such an
order, this Court would not run afoul of our holding in Warda v Flushing City
Council, 472 Mich 326, 333 n 3; 696 NW2d 671 (2005), which “precludes the
judiciary from reviewing the discretionary decision-making of legislative and
executive agencies.” (Emphasis deleted.) Issuing an order of this sort would
simply require the Parole Board to undertake the very type of discretionary
decision the law requires.

17
committing a new crime can only receive credit toward one sentence, and because

the jail credit statute requires that credit be given toward the new sentence, a

defendant cannot also have the time served allocated to his original sentence in

this situation.

Of particular importance to this analysis, and because jail credit must be

awarded as a component of the second offense, which cannot begin to run until

the remaining portion of the first sentence is completed, the awarded jail credit

cannot actually be applied until the second sentence is commenced. By not

immediately applying such credit, the new sentence will be suspended until the

defendant serves the remaining portion of his original sentence. Once the time

remaining on that sentence has been completed, the new sentence begins and the

previously awarded jail credit is then applied. Thus, by requiring the defendant to

serve the entire remaining portion of his original offense before jail credit is

applied to his new sentence, the consecutive sentencing regime in MCL 768.7a(2)

is given full effect.

Continuing with the earlier hypothetical example, recall that the defendant

has served 6 years of his original sentence and, while on parole, is subsequently

arrested for committing a new crime. Assume that the defendant now spends

exactly 1 year in jail before being sentenced to another term of 5 to 10 years for

his new offense. Pursuant to MCL 769.11b, that 1 year is awarded as jail credit

once the defendant has been sentenced for the new offense and will ultimately be

applied toward the second sentence, which leaves the total amount of time already

18
served on his first sentence at 6 years. After the conviction, the Board is then

required to make an affirmative determination as to whether the defendant is

required to serve any remaining portion on his original sentence, which I will

presume for purposes of this example is an additional 2 years. Therefore, the

defendant must now serve another 2 years on his first sentence after he has been

sentenced for the new offense, and none of the time spent between arrest and

sentencing will be credited toward his original sentence. After the defendant

serves the additional 2 years on his original sentence, he will have served a total of

8 years on the first sentence (5 years in prison + 1 year on parole + 2 years in

prison after his new conviction). It is at this point that the defendant will be

considered to have served the remaining portion of his original sentence and can

begin serving his new sentence. Upon beginning his new sentence, the

defendant’s jail credit is applied. Thus, once the second sentence begins, the

defendant will be considered to have served 1 year toward the new 5- to 10-year

sentence.

At this point, it becomes necessary to determine the defendant’s new

parole-eligibility date. For calculating such a date when there is a newly imposed

consecutive sentence, MCL 791.234(3)7 provides:

7
Although I refer to MCL 791.234(3) throughout this opinion, this analysis
is equally applicable to MCL 791.234(4), which is nearly identical to MCL
791.234(3). The only distinction between these two provisions is that MCL
791.234(4) applies to prisoners who are “subject to disciplinary time,” whereas

19
 If a prisoner other than a prisoner subject to disciplinary time
is sentenced for consecutive terms, whether received at the same
time or at any time during the life of the original sentence, the parole
board has jurisdiction over the prisoner for purposes of parole when
the prisoner has served the total time of the added minimum
terms . . . .[8] The maximum terms of the sentences shall be added to

MCL 791.234(3) does not. For purposes of resolving the issue currently before
this Court, this distinction is not relevant.
8
To avoid any confusion, it must be noted that although “the parole board
has jurisdiction over the prisoner for purposes of parole when the prisoner has
served the total time of the added minimum terms,” MCL 791.234(3), this does
not alter the Parole Board’s responsibility to make a determination of the
remaining portion of the defendant’s sentence under MCL 768.7a(2) after
conviction of the new offense. This is so because, although the “remaining
portion” decision does affect the date for which the defendant is eligible for
parole, it does not affect the decision regarding whether he is actually paroled once
he becomes eligible. Put differently, the Board only has jurisdiction to parole a
defendant after his total minimum terms have been served, but the Board retains
jurisdiction over the defendant for purposes of determining factors that affect his
parole eligibility. Further, if the Board could not make any decisions that affected
the defendant’s parole-eligibility date, then it could not make any determinations
regarding a defendant’s “good time” in prison that would make the parolee eligible
for early release in those cases in which a defendant is eligible to receive credit for
“good time.” See, generally, MCL 791.234.

Moreover, MCL 791.234(1) specifically states that

a prisoner sentenced to an indeterminate sentence and confined in a
state correctional facility with a minimum in terms of years . . . is
subject to the jurisdiction of the parole board when the prisoner has
served a period of time equal to the minimum sentence imposed by
the court for the crime of which he or she was convicted . . . .
[Emphasis added.]

This language is distinct from that used in MCL 791.234(3), stating that the Board
“has jurisdiction over the prisoner for purposes of parole . . . .” (Emphasis added.)
Thus, MCL 791.234(1) allows the Board to obtain jurisdiction over the defendant
for purposes of his original sentence after he has served his minimum term for that
offense. It does not purport to divest the Board of that jurisdiction once the
defendant has been convicted of a new crime for which MCL 791.234(3) then
applies. Once MCL 791.234(3) applies, the Board is only prohibited from
exercising jurisdiction in order to actually parole the defendant until he has served

20
 compute the new maximum term under this subsection, and
discharge shall be issued only after the total of the maximum
sentences has been served . . . unless the prisoner is paroled and
discharged upon satisfactory completion of the parole.

As is clear, a defendant who is subject to consecutive terms is now liable for a

“new maximum term,” which is simply calculated by adding the old and new

maximums. However, the language used to describe the amount of time that a

defendant must spend on his minimum terms is notably different from that used to

determine the new maximum term. More specifically, MCL 791.234(3) provides

that the defendant must serve the “total” time of the “added minimum terms,” not

that a new minimum term is created. This difference is important because, when

the statute is read in conjunction with the consecutive sentencing statute, MCL

768.7a(2), the defendant is not required to serve a new minimum term, but has to

serve the total time of the combined minimum terms. Significantly, the minimum

term for the new offense cannot be served until the new sentence begins to run,9

the combined minimum terms of the original and new sentences. In sum, although
the Board cannot parole a defendant who is serving consecutive sentences until he
has served the total time of the added minimum terms, the Board does retain
jurisdiction over the defendant for the original offense, which allows it to make the
“remaining portion” determination required by MCL 768.7a(2).
9
It is this consideration that leads me to reject the thoughtful interpretation
of MCL 769.11b, MCL 768.7a(2), and MCL 791.234(3), offered by the Chief
Justice, because, under her interpretation, a defendant would be allowed to count
his time served on the first offense toward satisfying the time he must serve on his
second offense. In that case, a defendant would actually be serving his original
and new sentences concurrently rather than consecutively; by doing this, the Chief
Justice’s interpretation renders the requirement of MCL 768.7a(2) that “the term
of imprisonment imposed for the later offense shall begin to run at the expiration
of the remaining portion of the term of imprisonment imposed for the previous

21
which means jail credit towards the second sentence’s minimum term will only be

applied after (a) the Parole Board makes its determination about the remaining

portion of the first sentence; and (b) the defendant serves the remaining portion of

his first sentence.10 Once the defendant serves this “remaining portion,” and then

serves an amount of time equal to the minimum term on the second sentence,

which includes any jail credit, the defendant will have served the total time of the

added minimums. At that point, he becomes eligible for parole.

In the hypothetical, the defendant’s new “maximum term” is 20 years (10

years for the original maximum + 10 years for the new maximum). The total time

of his “added minimum” terms is 10 years (5 years for the original minimum + 5

years for the new minimum). The defendant has now served a total time of 9

years on his new maximum (5 years on his original minimum + 1 year on parole +

2 years of the remaining portion of his original sentence + 1 year of jail credit

toward his new sentence) and a total of 6 years toward the total of his added

minimum terms (5 years on his first minimum term + 1 year jail credit). Thus, the

offense” effectively nugatory. Additionally, this interpretation would allow
defendants in some instances to become eligible for parole immediately upon
being convicted of a new offense, which leads to what I view as an illogical and
anomalous result.
10
As stated earlier, a defendant who serves the remaining portion of his
original sentence has not been discharged, MCL 791.234(3) and (4), nor has that
sentence been terminated. MCL 791.234(5). Indeed, if the term “remaining
portion” found in MCL 768.7a(2) were interpreted in this manner, it would render
nugatory MCL 791.234(3), which requires the new and old maximums and
minimums to be added together, because there would be no old maximum and
minimum terms to use in this calculation.

22
defendant would be eligible for parole 4 years from the date that his new sentence

begins to run (10 years total minimums – 6 years served on the total minimums).

D. Application

In this case, defendant was on parole for a previous offense when he

committed two new crimes, armed robbery, MCL 750.529, and possession of a

firearm during the commission of a felony, MCL 750.227b. He was sentenced to

a new term of 12 to 50 years’ imprisonment for the armed robbery conviction and

received a mandatory determinate 2-year sentence for the conviction of possession

of a firearm during the commission of a felony. Defendant spent 98 days in jail

between the date of his arrest and the date of sentencing and was not awarded jail

credit.

Applying the analysis described earlier, defendant should have been

awarded 98 days of jail credit because he was “denied or unable to furnish bond

for the offense of which he [was] convicted.” MCL 769.11b (emphasis added).

The Parole Board was then required to make an affirmative determination of how

much time he was required to serve on the remaining portion of his first sentence.

Instead of doing so, the Board automatically, and indeed arbitrarily, determined

that the remaining portion was the 98 days that defendant spent incarcerated.

Because, in my view, defendant was entitled to jail credit, I would order the Board

to render a determination of the remaining portion of defendant’s original

sentence. In order to correct the errors involved in this matter, the time defendant

has already served on his new sentence in excess of the 98 days of jail credit must

23
be first allocated as time served on the remaining portion of his original sentence

rather than his new sentence. Any time left over will then count toward

defendant’s new sentence. If there is still time to be served on the remaining

portion of his original sentence, however, the sentence for the new offense should

be suspended until defendant has completed the remaining portion of his original

sentence.

II. ARBITRARINESS

In contrast to the interpretation of the relevant statutes set forth in this

opinion, the majority concludes that the jail credit statute, MCL 769.11b, has no

application to defendants who are incarcerated because of a parole violation. As a

result, under the majority’s interpretation, identically situated parolees are, and

will continue to be, treated differently for entirely serendipitous reasons.

Specifically, the majority refuses to correct the Parole Board’s practice of

arbitrarily determining how much time a parolee who commits a new crime must

serve on the remaining portion of his original sentence. See part I(C) n 5 supra.

Indeed, the majority only tangentially discusses this problem by characterizing

defendant’s argument as follows:

[D]efendant claims that the denial of credit against a parolee’s
new minimum sentence results in unequal treatment [because] . . . it
creates a disparity among parolees based on the decision to plead
guilty and other “arbitrary” factors that affect the parolee’s
sentencing date.

***

24
 Even if the Legislature had created such a distinction, the
United States Supreme Court has stated that “there is no per se rule
against encouraging guilty pleas,” and has “squarely held that a State
may encourage a guilty plea by offering substantial benefits in return
for the plea.” Corbitt v New Jersey, 439 US 212, 218-219; 99 S Ct
492; 58 L Ed 2d 466 (1978). . . .

To the extent the denial of credit against the new minimum
sentence results in some parole violators reaching their parole
eligibility dates earlier than others based on “arbitrary” factors such
as docket congestion or a judge’s illness, this does not amount to a
violation of equal protection. [Ante at 23-25.]

This analysis is misleading, and the majority thereby mischaracterizes the

nature of the arbitrariness problem. That is, the majority views the issue presented

in this case as whether a defendant who commits a new crime while on parole can

be “encouraged” to enter a guilty plea instead of prolonging the judicial process by

insisting on his right to a trial. While the majority is correct that Corbitt does not

prohibit the state from compelling a defendant to chose between accepting a plea

agreement offering a potentially shorter sentence in exchange for giving up his

right to go to trial, the majority altogether ignores the actual arbitrariness problem

present here, which has almost nothing to do with whether a defendant accepts or

rejects a plea agreement. To illustrate the true arbitrariness problem, consider two

examples.

In the first example, consider two identically situated defendants who both

proceeded to trial after being arrested for a new offense while on parole. Assume

that these defendants both received 5- to 10-year sentences for their original

offenses. After 5 years, both the defendants are paroled, and both commit the

25
same new crime exactly 1 year after being conditionally released from prison and

opt to proceed to trial. Defendant A is convicted of the new crime and exactly 30

days after his reincarceration is sentenced to an additional 5 to 10 years for the

new crime. Defendant B is also convicted and sentenced to an additional 5 to 10

year term for the new crime. However, Defendant B is not sentenced until 1 year

after he was arrested and incarcerated because: (1) the prosecutor requested

multiple continuances for reasons unrelated to the defendant’s case; (2) the trial

judge took ill; or (3) a police officer whose testimony was needed was on

vacation, which required the trial court to grant a continuance. Under the

majority’s interpretation of the jail credit statute, Defendant A would be eligible

for parole 11 months earlier than Defendant B for no reason having anything to do

with the relevant statutes.

In the second example, consider two identically situated defendants who

both accepted plea bargains. Assume that defendants A and B committed the

same crime and were both sentenced to 5- to 10-year terms of imprisonment for

their original offenses. They are both paroled after serving 5 years, and both

commit the same new crime exactly 1 year after being paroled. The defendants

are then offered the same plea bargain, which both agree to take. Defendant A is

able to plead guilty in 1 month and be sentenced to a new 5- to 10-year term, while

Defendant B, for one of the reasons set forth in the previous paragraph, is not

sentenced for 6 months. Defendant A will be eligible for parole 5 months earlier

than Defendant B on the basis, again, of entirely arbitrary factors.

26
 As can be seen by comparing two defendants who accept plea agreements

and two who do not, the majority’s claim that there is “no per se rule against

encouraging guilty pleas” is an inapt characterization of the arbitrariness problem

at issue here, which is that identically situated defendants are treated in an

arbitrary fashion, regardless of whether they proceed to trial or not. More

specifically, the Parole Board’s current practice of failing to undertake its statutory

responsibilities, passively waiting for a defendant to be convicted of a new crime,

and then mechanically concluding that the amount of time a defendant has spent

awaiting trial on his new offense automatically constitutes the remaining portion

of the original sentence that the defendant must serve, treats identically situated

defendants in a potentially widely disparate fashion, regardless of whether they

accept a plea deal or not. This treatment is based on wholly arbitrary factors that

have nothing to do with a defendant’s culpability or with the severity of his

original or new crime. Rather, the remaining portion of the sentence that a

defendant must spend incarcerated before trial, which prolongs his parole-

eligibility date after the new sentence is imposed, becomes a function solely of

“the fortuity of how long it takes the criminal justice system to proceed to a

defendant’s final sentencing . . . .” People v Wright, 474 Mich 1138, 1140; 716

NW2d 552 (2006) (Markman, J., dissenting).

Significantly, the majority devotes little analysis or discussion to the

serendipity of the process by which the state deprives an individual of his liberty

and refuses to compel the Parole Board to satisfy its obligations under MCL

27
768.7a(2) and Wayne Co Prosecutor to render an affirmative determination of

what “remaining portion” must be served on an original sentence before the

beginning of a new sentence. In summary fashion, the majority concludes that “it

is entirely rational for the Legislature to treat parolees and nonparolees

differently . . . .” Ante at 23-24. However, given that it is not the disparate

treatment of parolees as compared to non-parolees that gives rise to the underlying

arbitrariness problem, I question whether the majority has adequately addressed

the relevant issues in this case.11

III. RESPONSE TO THE MAJORITY

In response to this opinion, the majority makes three specific arguments

that warrant further discussion. First, it argues that the Parole Board has no

authority to alter a prisoner’s parole eligibility date by stating that “[t]he flaw in

11
The majority correctly notes that the theory set forth in this case will not
resolve all arbitrariness problems. It asserts this based upon a hypothetical
scenario wherein identically situated parolees violate their parole and are both
incarcerated awaiting trial without being allowed to post bond. Ante at 26 n 24.
Both parolees are acquitted, and the Parole Board determines that neither is
required to serve a remaining portion of their original sentences. Both parolees are
then placed back on parole. In the majority’s hypothetical, Parolee A is able to
proceed to trial in one month, while Parolee B, based on arbitrary factors, is
unable to proceed to trial until one year after being arrested for the alleged parole
violation. The result is that Parolee B spends 11 more months in jail than Parolee
A. However, this situation is no different than when two non-parolee defendants
are charged with crimes, denied bond, and ultimately acquitted, with one
defendant spending one month in jail awaiting trial and the other defendant
spending one year in jail awaiting trial. Although these situations undeniably
contain an element of arbitrariness, there is no obvious or practical remedy. The
distinction between these situations and the arbitrary treatment directed toward
parolees in the instant case is that parolees do have a remedy, which is to be
awarded jail credit toward their new offenses when they are ultimately convicted.

28
[the instant opinion’s] theory is that parole eligibility is a function of statute:

MCL 791.234. Unless a new sentence is imposed consecutive to the original

sentence, in which case the offender’s new parole eligibility date is then governed

by MCL 791.234(3), the offender’s parole eligibility date does not change.” Ante

at 35 (emphasis in original). Further, the majority states that the Board’s only

“discretionary authority lies in determinations of parole worthiness.” Ante at 36 n

29 (emphasis in original). I respectfully disagree.

In fact, the Board does possess the authority to determine a prisoner’s

parole-eligibility date. While the majority is correct that MCL 791.234 establishes

the initial parole eligibility date for a prisoner, there are various instances in which

that date, as a practical matter, must be recalculated. For example, when a parolee

violates his parole and is reincarcerated for that violation, the Board must

determine whether the prisoner will be given another opportunity for parole and, if

such an opportunity will be afforded, on what date the Board will consider

whether the prisoner is in fact deserving of parole.12 Once that new date for parole

12
If the majority is correct that the Parole Board can never set a parole-
eligibility date that is different from the date established by MCL 791.234, then
once a parolee’s parole has been revoked for a parole violation, he could never be
re-paroled. That is, if a defendant who was serving a 5- to 30-year sentence, was
paroled on year 5, violated parole on year 6, and had his parole revoked, the Board
would not then be able to re-parole him because it would be powerless to set a new
parole-eligibility date. However, despite the majority’s statement to the contrary,
it acknowledges implicitly that the Board has such authority when it states that
“[t]he parole board may account for previous parole violations in making”
decisions as to whether a prisoner’s current sentence should be terminated or a
parolee’s sentence discharged. Ante at 39 (emphasis added). A parolee could not

29
consideration has been reached, the Board must then look to the factors in MCL

791.233e and the DOC guidelines, see note 4, supra, to determine whether the

prisoner is “parole worthy.” That is, when the Board sets a new possible parole

date, it is setting a new “parole eligibility” date. It is only when the prisoner

reaches that new “parole eligibility” date that his “parole worthiness” is actually

considered.13

Second, the majority argues that the Parole Board has no duty to make an

affirmative determination as to how long a defendant must serve on his original

sentence by inquiring as to the statutory authority that requires the Board to make

the “remaining portion” determination. The statutory authority consists in sum of:

(a) MCL 768.7a(2), which states that when a parolee violates his parole and is

sentenced to a new term of imprisonment that is to run consecutive to his original

have previous parole “violations” unless the Board had determined that he had
committed a violation and subsequently set a new parole-eligibility date on which
the prisoner was again paroled and positioned to violate parole a second time. The
majority thereby appears to concede that the Board possesses the authority to set a
new parole-eligibility date even after a parolee has violated parole.
13
Additionally, my disagreement with the majority’s distinction between
parole eligibility and parole worthiness is that, for purposes of the present analysis,
it is entirely academic. Even if the majority is correct that the Board’s authority to
revoke parole and establish a subsequent date at which that defendant will be re-
evaluated and that this date constitutes the new parole-worthiness date, the
Board’s responsibility to make a determination as to the remaining portion of a
defendant’s original sentence pursuant to MCL 768.7a(2) remains the same. That
is, once a parolee violates parole, the Board possesses the authority, under the
majority’s view, to determine at what future date it will reconsider his parole
worthiness. Regardless of whether that future date is termed the “parole-eligibility
date” or the “parole-worthiness date,” the time period between the parole violation
and that future date is the remaining portion described in MCL 768.7a(2).

30
offense “the term of imprisonment imposed for the later offense shall begin to run

at the expiration of the remaining portion of the term of imprisonment for the

previous offense”; (b) MCL 791.234(1), which vests the Board with jurisdiction

over the prisoner when he “has served a period of time equal to the minimum

sentence imposed by the court” for the original offense; and (c) MCL 791.241,

which states that, after determining whether a parole violation occurred, the Board

“shall enter an order rescinding such parole, or reinstating the original order of

parole or enter such other order as it may see fit.” Thus, the Board necessarily

has jurisdiction over a prisoner who is paroled, and, once it is determined that the

parolee has violated his parole, the Board “shall” enter an order reflecting what

action it is taking, including whether the parole violator must serve a “remaining

portion” on his original offense.14

Despite these statutory provisions, the majority claims that “[n]one of these

statutorily defined functions of the Parole Board includes a requirement that the

14
Because the Board “shall” enter an order taking some action after
determining whether a parole violation has occurred, the majority is incorrect in
asserting that there is “no statutory requirement that the Parole Board make an
affirmative ‘remaining portion’ determination.” Ante at 39. Additionally, Wayne
Co Prosecutor, 451 Mich at 584, has already determined that the Board must
make a remaining portion determination, which consists of “whatever portion,
between the minimum and the maximum of the earlier sentence that the Parole
Board may, because the parolee violated the terms of his parole, require him to
serve.” Thus, if the Board intends to impose any remaining portion, it must
affirmatively do so. Otherwise, there is no remaining portion for which the
defendant can be required to serve. Thus, even if the majority is correct that the
Board has no duty to make an affirmative determination as to the remaining
portion, the result of not making that determination is that there is no remaining
portion that the defendant must serve before his new sentence begins to run.

31
Parole Board make an ‘affirmative determination of how long the defendant must

serve on [his first] sentence.’” Ante at 37 (emphasis in original). While the

majority is correct that no individual statute alone requires the Parole Board to

make an affirmative determination concerning the “remaining portion” that a

parole violator must serve, this Court does not interpret in isolation clauses or

paragraphs or subsections or even statutes, which together comprise part of a

larger statutory scheme. Rather, each of the three principal statutes discussed

herein must be read in context with the other statutes in order to ascertain the

meaning of the “remaining portion” used in MCL 768.7a(2), and to determine

which entity must make the “remaining portion” determination. When the

pertinent laws are interpreted together, as they must be, it becomes as reasonably

clear as it can be in this very difficult and convoluted area that the Parole Board is

obligated to make decisions concerning a parolee’s “remaining portion,” so that

the parolee does not begin to receive credit toward his new sentence until he has

served an appropriate amount of additional time on his original sentence as a result

of a parole violation. The majority’s resistance to reading the relevant statutes in

pari materia leads to what I view as an unreasonable interpretation of MCL

769.11b in which: (a) equally situated defendants may be treated in a widely

disparate manner based upon entirely arbitrary factors; and (b) parolees who

commit parole violations may escape the full consequences of their actions if the

Parole Board is precluded from imposing a proportional “remaining portion.” The

32
Legislature has not mandated these results, and I therefore disagree with the

majority’s unharmonious reading of the law.

IV. CONCLUSION

MCL 769.11b requires that “any person” “shall” be awarded jail credit

“because of being denied or unable to furnish bond for the offense of which he is

convicted . . . .” Contrary to the majority’s interpretation, there is no limitation or

qualification present in this statute requiring that a defendant be denied or unable

to furnish bond for any reason related to the new offense itself. Rather, the

defendant need only be denied or unable to furnish bond for the new offense.

Defendant here was unquestionably “unable” to furnish bond for the offense of

which he was convicted and, thus, is entitled to 98 days of jail credit toward the

sentence for his new offense for the amount of time he spent incarcerated awaiting

sentencing. The Parole Board, in my view, must also undertake an affirmative

determination of the “remaining portion” of defendant’s original sentence that he

must serve before beginning his new sentence. MCL 768.7a(2). The time he has

served on his new sentence in excess of the 98 days of jail credit must first be

applied to that remaining portion instead of defendant’s new sentence, with any

time left over then being counted toward his new sentence. If defendant has not

yet served an amount of time in excess of the 98 days of jail credit sufficient to

satisfy the remaining portion of his original sentence, then the new sentence must

be suspended until defendant has completed that length of time. Because the

majority reaches a different result using what I view as an erroneous and

33
incomplete reading of the statutes, and because the majority would perpetuate the

present arbitrariness of the parole system by failing to require an affirmative

determination from the Board, I respectfully dissent.

Stephen J. Markman

34