Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 24, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 122367
LOUIS MOORE,
Defendant-Appellee.
________________________________
PER CURIAM
The Court of Appeals held that the circuit court had
authority to resentence defendant because the sentencing
judge's expectations regarding eligibility for parole had
proved to be incorrect. We hold that the circuit judge
properly concluded that he lacked jurisdiction to resentence,
and reverse the judgment of the Court of Appeals.
I
Following a bench trial, defendant was found guilty of
second-degree murder1 and possession of a firearm during
1
MCL 750.317.
commission of a felony.2 On September 22, 1981, the circuit
court sentenced defendant to life in prison for murder,
consecutive to the two-year mandatory term for the firearm
offense. At sentencing, there were several exchanges
regarding defendant's eligibility for parole. In imposing a
life sentence the judge explained:
These kinds of sentences are always difficult
to impose, and I do not pretend to be the kind of
expert that I hope the corrections commission has
in the parole board. But, I'm going to impose the
kind of sentence that, I think, will leave them
much room to recommend when you should be released;
which means, in affect [sic], that I am not going
to impose a sentence of a term of years. I want to
leave it up to the parole board so that after a
period of 10 years, you could be considered for
parole if you put yourself and your life in such a
position that you should be considered for [it].
The judge said that he would make "no recommendation"
regarding parole.
Following imposition of sentence, defense counsel raised
a question about the parole consequences of the sentence and
had the following exchange with the court:
Mr. Howarth: Only one other question. It
would—would it be my understanding that the Court
has chosen a sentence of life imprisonment in this
case based upon the thought that it is a parolable
offense within ten years?
The reason I saw [sic, say?] that is because
of certain attorney general opinion's [sic]
indicating that under Proposal B,[3] it might not be
2
MCL 750.227b.
3
Counsel's references are to the 1978 initiative known
as "Proposal B," and an Attorney General's Opinion concluding
that Proposal B precluded parole for even nonmandatory life
2
parolable within ten years.
The Court: I understand that. We've had that
kind of problem before.
The record will be very clear that's a very
important point because—important basis of the
sentence.
I do not in any way mean that this man could
not obtain his release if that were seen as a
realistic and reasonable thing by the parole
authorities; so that if that becomes a problem
after the course of time, the record is clear so
that I can be addressed on that issue if I'm here
or my successor.
Mr. Howarth: In case an appellate court were
to rule that a life sentence under murder, second
degree is not parolable, then it would be
appropriate under this sentence for Mr. Moore to
ask to be resentenced.
The Court: It's clear that my intent is that
Mr. Moore be eligiable [sic] for parole after a
proper amount of time.
In his appeal of right, defendant's conviction was
affirmed by the Court of Appeals.4 We denied leave to appeal.5
Defendant filed a motion in propria persona for
resentencing in 1984, which the circuit judge denied on
April 24, 1984, on the ground that it was premature because
the defendant had not been in prison for ten years. The Court
of Appeals denied leave to appeal, with an order stating that
sentences. OAG, 1979-1980, No 5583, p 438 (October 16, 1979).
That interpretation of the initiative proposal was rejected in
People v Waterman, 137 Mich App 429; 358 NW2d 602 (1984).
4
Unpublished opinion per curiam, issued March 28, 1983
(Docket No. 61277).
5
418 Mich 896 (1983).
3
the denial was "in light of" People v Waterman, 137 Mich App
429; 358 NW2d 602 (1984), which had been decided a few weeks
before.6
On July 15, 1997, defendant filed a motion for relief
from judgment, seeking resentencing. He asserted that he was
not "eligible" for parole after ten years of incarceration,
contrary to the circuit court's assumption when defendant was
sentenced. He noted that on April 2, 1994, the Parole Board
had indicated that it had "no interest in taking action at
this time" regarding defendant's parole.
The motion was heard by the original sentencing judge,
who denied it on July 6, 1999. At the hearing, the judge
explained that he may have been under something of a
misapprehension at the time of sentencing regarding the actual
likelihood of defendant's being paroled. The judge said:
None of us can ever really go back 20 years
and know exactly what we intended, whatever
our are [sic] intentions were to be, but I think
it's probably fair for me to conclude that I wanted
Mr. Moore to have a reasonable chance at parole,
given his history in prison and how he behaved
himself.
And I think I may have been under what now
turns out to be somewhat of a misapprehension or
misunderstanding that any number of parolable life
sentences resulted in parole. I guess it turns
out, . . . surprisingly few parolable life
sentences result in parole.
The judge continued, saying that under In re Parole of
6
Unpublished order, entered October 8, 1984 (Docket No.
79268).
4
Johnson, 235 Mich App 21; 596 NW2d 202 (1999), one could argue
that defendant had not become "eligible" for parole.
Nevertheless, the judge concluded that he did not have the
authority to resentence, explaining:
Now, it was my intention that he become
eligible for parole, but I don't believe . . . I
have jurisdiction to resentence him,
notwithstanding the fact that he, as a practical
matter, has not become eligible.
Again, I've read that transcript over and over
again, and I guess what I'm saying is, what I said
at the time was, Given [sic] my belief of how
parolable life sentences work, it was my hope that
he would be considered for parole.
And I'm not even sure if I said explicitly if
he's not, then I hold on to this case for
resentencing, whether I can properly do that, or
could have done that.
* * *
. . . I suppose if the law were otherwise, a
judge in every sentence would be able to fashion
language that, as a practical matter, would result
to retention of jurisdiction in every case, and I'm
not sure that would be wise public policy given the
issues that we're talking about.
I think the issue in this case is whether, in
this case, because of my finding that as a
practical matter, or as a legal matter, under the
Johnson case Mr. Moore has not become eligible for
parole, and given what I said at the time of
sentence do I, under these circumstances, retain
jurisdiction?
I conclude, no, . . . .
II
The Court of Appeals granted defendant's application for
5
leave to appeal and then reversed in a two-to-one decision.7
The majority noted the sentencing judge's statement that he
intended defendant to become eligible for parole and that the
judge concluded that under In re Parole of Johnson defendant
had not become so eligible. The Court of Appeals rejected the
sentencing judge's view that he was without jurisdiction to
resentence, stating:
Having found that it sentenced under a
"misapprehension or misunderstanding" regarding
defendant's eligibility for parole after ten years,
the court had authority to resentence, if it so
chose. [Slip op at 2.]
The majority stressed that defendant was not entitled to
resentencing, but only that the trial court had jurisdiction
to resentence if it determined that the misapprehension of law
affected the sentence. The majority remanded the case for
proceedings consistent with its opinion.
Judge MURPHY dissented. In his view, the sentencing
judge's language at the sentencing hearing indicated an intent
that the defendant be given the opportunity for parole.
MCL 791.234(6), in fact, provided defendant with that
opportunity. The sentencing judge did not express any
intention that the defendant actually be paroled, merely that
he be subject to parole consideration, as he was.
III
A trial judge has the authority to resentence a defendant
7
Unpublished opinion per curiam, issued July 9, 2002
(Docket No. 228323).
6
only when the previously imposed sentence is invalid. In re
Jenkins, 438 Mich 364, 368; 475 NW2d 279 (1991); People v
Miles, 454 Mich 90, 96-97; 559 NW2d 299 (1997). A sentencing
judge’s misapprehension of the law can be a ground for finding
a sentence to be invalid. People v Whalen, 412 Mich 166, 170;
312 NW2d 638 (1981). In this case, the Court of Appeals
majority appears to have proceeded on the assumption that
whether there is such a misapprehension is a question of fact.
However, while identifying the judge’s understanding of the
law may be a question of fact, whether that understanding is
a misapprehension is a question of law, to which we apply a de
novo standard of review. People v Sierb, 456 Mich 519, 522;
581 NW2d 219 (1998).
IV
We agree with the dissenting judge in the Court of
Appeals that the facts of this case demonstrate no
misunderstanding by the sentencing judge that would entitle
the defendant to resentencing. The sentencing judge's
statements in 1981 merely expressed the intent that
defendant's life sentence would not deprive him of
consideration for parole. That was a correct understanding of
the law. MCL 791.234, in fact, gave the Parole Board
jurisdiction over defendant after he had served ten years.
As the Court of Appeals dissent noted, the sentencing
judge did not express any intention that defendant actually be
7
paroled, but only that the Parole Board consider whether to
parole him. Defendant's motion for relief from judgment,
itself, revealed that he received such a consideration in
1994. While the result of that consideration was the Parole
Board's "no interest" letter, the fact remains that the
defendant received parole consideration, meeting the
sentencing judge's expectations. The only sense in which the
sentencing judge expressed that he had been under a
“misapprehension or misunderstanding” was that he did not
anticipate the infrequency with which the Parole Board would
grant parole to defendants sentenced to life terms. However,
the failure to accurately predict the actions of the Parole
Board does not constitute a misapprehension of the law that
could render the sentence invalid.
The principle argued by defendant and the Court of
Appeals majority would alter the whole framework of our
sentencing and corrections system. If a judge's conclusion
that the Parole Board's later action renders the sentence
subject to change, virtually any sentence could be revised at
the whim of the sentencing judge.
The Court of Appeals majority relied on the circuit
judge’s reference to In re Parole of Johnson. Although
Johnson perhaps could have been written more clearly, it
addressed an entirely different issue from the expectation of
a sentencing judge regarding the eligibility for parole as in
this case. In that case the question was whether the Parole
8
Board's "no interest" letter constituted a denial of parole
that was at the time subject to appeal by the defendant.8 In
concluding that the “no interest” decision was not appealable,
the Johnson opinion used language indicating that a defendant
who receives such a “no interest” letter was not "truly
eligible" for parole because the other conditions for parole
had not been met—public hearing, opportunity for a sentencing
judge to object, etc. The Johnson Court was using the word
“eligible” in an entirely different sense than applicable
here. The sort of “eligibility” with which we deal in this
case concerns the jurisdiction of the Parole Board over a
defendant. Here, and in Johnson, the board unquestionably had
the authority to consider the defendants for parole and to
grant them parole. The Johnson Court said the defendant was
not “eligible” in the sense that the substantive requirements
for granting parole had not been established. Here the
question is the judge's understanding that defendant would be
subject to the jurisdiction of the Parole Board and could be
paroled after the board completed the requisite procedures and
exercised its discretion to grant parole. He was in fact
eligible for that consideration.
V
The sentence imposed in 1981 was a valid one, and, thus,
the circuit court lacked the authority to resentence
8
1999 PA 191 amended MCL 791.234 to eliminate inmates'
right to appeal Parole Board denials.
9
defendant. Accordingly, pursuant to MCR 7.302(F)(1), in lieu
of granting leave to appeal, we reverse the judgment of the
Court of Appeals, and reinstate the Wayne Circuit Court's
order of July 6, 1999, denying defendant's motion for relief
from judgment.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
CAVANAGH and KELLY, JJ.
We concur in the result only.
Michael F. Cavanagh
Marilyn Kelly
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