Order Michigan Supreme Court
Lansing, Michigan
November 2, 2007 Clifford W. Taylor,
Chief Justice
133736 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan
Plaintiff-Appellee, Robert P. Young, Jr.
v SC: 133736 Stephen J. Markman,
Justices
COA: 275609
Genesee CC: 80-029788-FY
JOSEPH ART JOHNSON,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the March 1, 2007 order
of the Court of Appeals is considered. We DIRECT the Genesee County Prosecuting
Attorney to answer the application for leave to appeal within 28 days after the date of this
order, and to provide as much information as is possible, including references to the
defendant's record while incarcerated, as to what has led the Department of Corrections to
exercise its discretion to keep the defendant incarcerated until now.
We note that in 1985, former Justice Ryan, in dissenting from the denial of the
defendant's application for leave to appeal, stated as follows:
Despite the inapplicability of People v Coles, 417 Mich 523 (1983),
I would direct the appointment of counsel to prepare an application for
leave to appeal to enable this Court to consider whether, despite defendant's
juvenile record, imposition upon this 18-year-old defendant of a sentence of
life imprisonment for an armed robbery of an ice cream vendor in which a
pellet gun was employed, no one was injured, no shots were fired and
$27.50 in change was taken is so shocking to the conscience of the Court
that the matter should be remanded to the trial court for reconsideration of
the sentence, particularly in light of the sentence of probation given to the
codefendant. [422 Mich 897 (1985)].
In addition, in 2005, Justice Cavanagh stated:
I dissent from the denial of leave. I would grant leave to explore
what relief could be afforded this defendant.
In 1981, defendant and a codefendant, both 19 years of age at the
time, used a pellet-shooting air rifle to rob a 14-year-old ice cream bicycle
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vendor of several dollars. Defendant held and brandished the air rifle while
the codefendant actually took the money. They both entered guilty pleas to
a charge of assault with intent to rob while armed. The codefendant
received a sentence of six months in the county jail with work release.
Defendant was sentenced to life in prison.
In 1983, this Court remanded this matter to the trial court and
directed the sentencing judge to explain the reason for the great disparity in
the two sentences. The trial court explained that this defendant had a more
extensive, assaultive juvenile record and the public needed him removed
from the streets for a number of years. It can be inferred from the trial
court's statements that the court expected that the practice in place before
the passage of Proposal B of parole eligibility after ten years of a life
sentence would provide defendant with review.
Now, 24 years after sentence, defendant again seeks relief from this
Court. I would grant leave to explore what relief might be possible. Short
of that, I would order the Department of Corrections to show cause why
this defendant remains incarcerated. [474 Mich 924 (2005)].
The application for leave to appeal remains pending.
YOUNG, J., dissents and states as follows:
This Court has made an extraordinary request that the prosecutor explain why the
Department of Corrections has continued to imprison defendant, who was convicted of
assault with intent to commit armed robbery. Setting aside the obvious procedural
barriers to defendant’s application, this Court has no jurisdiction over the Department of
Correction’s decisions denying parole, and there is no relief this Court can grant if the
prosecutor’s answer proves to be unsatisfactory to those members of the Court who are
requiring this action. Therefore, this order is, in my view, simply an empty gesture.
Defendant has been before this Court a number of times. When defendant first
appealed, the Court of Appeals issued a published opinion affirming his conviction. 130
Mich App 26 (1983). This Court remanded the case to the Genesee Circuit Court to
articulate the reasons for imposing a life sentence. 419 Mich 920 (1984). After remand,
this Court denied defendant’s application for leave to appeal over Justice Ryan’s dissent.
422 Mich 897 (1985). Since then, defendant has filed a number of motions for relief
from judgment, but did not seek leave to appeal in this Court when the first two were
denied. When he sought leave to appeal in this Court the third motion for relief from
judgment, his appeal was denied as a successive motion failing to meet the requirements
of MCR 6.502(G). 472 Mich 921 (2005). This Court denied defendant’s motion for
reconsideration, and Justice Cavanagh dissented and stated that he would “grant leave to
explore what relief could be afforded this defendant.” 474 Mich 924 (2005) (Cavanagh,
3
J. dissenting). The current application is from defendant’s fourth motion for relief from
judgment.
Defendant’s main quarrel is that he and the trial judge believed that, even though
defendant was sentenced to life with the possibility of parole, he would probably be out
of prison in 10 years. That argument is defeated by People v Moore, 468 Mich 573, 580
(2003), in which this Court held that “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 affidavit and letter from Judge Borradaile, the sentencing judge,
that defendant submitted reflect a misapprehension on par with that of the trial judge in
Moore.
Because defendant’s sentence is proper, he is ultimately attempting to appeal the
Department of Correction's decision to deny him parole. Under MCL 791.235(1), “[t]he
release of a prisoner on parole shall be granted solely upon the initiative of the parole
board.” The statute entitles defendant to “a written explanation of the reason for denial
and, if appropriate, specific recommendations for corrective action the prisoner may take
to facilitate release.” MCL 791.235(12). However, defendant is not entitled to appeal the
decision of the Parole Board. MCL 791.234(11).1 Defendant has not even alleged any
violations of the procedures of the parole act.
Given that defendant’s sentence is valid and it is not contested that the Parole
Board has complied with the statute, I am uncertain what end is served by requiring the
prosecutor to respond to this meritless application. There is simply no authority for this
Court to order defendant’s release. Consequently, however upset members of the Court
may be about the time that this defendant has served for assault with intent to commit
armed robbery, there is essentially nothing this Court can do to impose its will on the
Parole Board.
CORRIGAN, J., joins the statement of YOUNG, J.
1
This provision used to be MCL 791.234(8). 1999 PA 191 renumbered the provision
and removed prisoners from the list of people who could appeal a decision of the Parole
Board. Moore, supra at 581 n 8. The provision has been further renumbered since, but it
has not been otherwise altered.
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.
November 2, 2007 _________________________________________
s1030 Clerk