Order Michigan Supreme Court
Lansing, Michigan
May 5, 2006 Clifford W. Taylor,
Chief Justice
129431 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman,
Justices
Plaintiff-Appellee,
v SC: 129431
COA: 252852
Saginaw CC: 01-019930-FC
DERRICK CONWAY,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the August 2, 2005
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
KELLY, J., dissents and states as follows:
Defendant was convicted by a jury of first-degree criminal sexual conduct and
assault with intent to commit criminal sexual conduct. On appeal, the Court of Appeals
reversed the first-degree criminal sexual conduct conviction and remanded the case for
defendant to be resentenced. At resentencing, defendant argued that he was entitled to 26
months of sentencing credit. The trial court denied the request, and the Court of Appeals
affirmed. Unpublished opinion per curiam issued August 2, 2005 (Docket No. 252852).
It has become apparent that the sentencing credit problems here arise from
practices of the state Department of Corrections (DOC). I would grant leave in this case
to explore the issues presented by the DOC’s handling of sentencing credit in this and in
many similar cases.
There is reason to believe that the DOC is committing a real injustice against
prisoners who seek credit for time spent in jail awaiting trial and appeal. The problem
involves those who were on parole when they committed a felony and then were arrested
and jailed pending trial and appeal.
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The problem, not one that this Court has addressed before, is that the DOC
arbitrarily treats similarly situated individuals differently. The DOC has apparently
adopted an across-the-board practice. It treats the time those individuals were jailed as
equal to the time not completed on the conviction for which they were on parole when the
second offense occurred. At first blush, this may appear to be evenhanded and fair to all.
But, on closer inspection, it becomes clear that similarly situated individuals are being
treated very differently. The difference in treatment is not reasoned, but arbitrary.
By way of illustration, assume A and B are both convicted of assault with intent to
do great bodily harm less than murder. They are sentenced to five to ten years in prison.
Both serve five years and are paroled. While on parole, both A and B commit an assault
and are again charged with assault with intent to do great bodily harm less than murder.
After 30 days in jail awaiting trial, A pleads guilty of felonious assault and is sentenced to
two to four years in prison. The DOC, following its current policy, considers A’s new
sentence to have begun on the day he was sentenced, without credit for the 30 days.
Hence, A starts immediately serving his new sentence for the second assault, and the
DOC effectively counts the 30 days in jail as the time remaining on A’s first sentence.
But B decides to go to trial and is convicted by a jury of felonious assault. He
appeals and his conviction is overturned on appeal. B is retried and found guilty. He
receives the same sentence as A, two to four years in prison. By then he has spent 26
months in jail or prison awaiting trial and appeal. Again, applying its current practice,
the DOC perfunctorily considers B’s new sentence to have begun on the day he was
sentenced without credit for the 26 months. Effectively it credits B with the 26 months
on his old sentence and starts him on his new sentence immediately. Now assume further
that A and B both serve two years for their second assault conviction and are released. B
will have been incarcerated 25 months longer than A without individualized consideration
and without regard to B’s worthiness for parole relative to A.
Equally or more serious than the injustice of arbitrarily treating similarly situated
inmates differently is this problem: The less parole-worthy individual could serve less
time. Returning to my hypothetical case, assume A had a longer or more severe prior
record, committed a more heinous offense, or was otherwise less suitable for parole. A
could serve less time than B if A pleaded guilty rather than going to trial and pursuing an
appeal. The reality is that defendants who plead guilty are incarcerated for a shorter time
than defendants tried before a jury. B might serve less time even if A got a longer
sentence for the second offense. This would occur if the time it took to get through trial
or appeal was longer than the extra time A got on the new sentence. The dangerous
defendants who plead guilty could get out earlier than they should, whereas the less
dangerous who choose trial and any resulting appeal could stay longer.
I believe that these are important issues that have arisen because of the DOC’s
handling of sentencing credit accrued by prisoners who were on parole when they
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committed a felony. This Court should grant leave to appeal in this case to explore these
issues.
MARKMAN, J., dissents and states as follows:
For the reasons set forth in my dissenting statement in People v Wright (Docket
No. 128424), ___ Mich ___ (2006), I also dissent from the majority’s decision to deny
leave to appeal in this case.
As I noted in Wright, it appears that whenever a parolee-defendant is sentenced on
a new offense, the Department of Corrections (DOC) fails to make a formal
determination regarding the amount, if any, of additional time a defendant is required to
serve for the parole violation on the prior sentence. Instead, the DOC simply counts
whatever time the parolee spent incarcerated between arrest and sentencing as the
“remaining portion” of the earlier sentence for purposes of MCL 768.7a(2) and begins the
new offense sentence on the date of sentencing. In other words, an essentially arbitrary
period of time becomes a de facto sentence imposed for violating parole.
Here, defendant successfully challenged one of his convictions on appeal, and the
Court of Appeals remanded the remaining conviction for correction of errors in scoring
offense and prior record variables. Unpublished opinion per curiam issued August 2,
2005 (Docket No. 252852). Defendant was then resentenced on that conviction, some 26
months after the original (preappeal) sentencing. However, it appears that the DOC
considers the start date for defendant’s sentence on that conviction to be the postappeal,
rather than the original, sentencing date. Had defendant not appealed the instant
convictions, his sentence for those convictions would have begun to run on the date of his
original sentencing.
Given the DOC’s practice, set forth more fully in Wright, the intervening 26
months was not credited toward defendant's sentence, but was simply “tacked on” to the
prior, paroled sentence. If the additional time had been calculated as of defendant's
original sentencing date -- which it would have been under the DOC’s practice had
defendant not appealed -- rather than as of his postappeal resentencing date 26 months
later, he would have begun serving his new sentence on that date. The result is that
defendant received an additional 26 months imprisonment for exercising his right to
appeal. In such a case, a consistent rule of law would seem to require that defendant be
given credit for this time.
Because the current process for determining periods of incarceration appears to be
arbitrary, I believe that it requires this Court’s review. I would grant defendant’s
application for leave to appeal.
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CAVANAGH, J., concurs in the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 5, 2006 _________________________________________
p0502 Clerk