Michigan Supreme Court 

# Order

Lansing, Michigan

May 5, 2006 Clifford W. Taylor,
Chief Justice
128424 & (16) Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellee, Justices

v SC: 128424 COA: 259880 Oakland CC: 2002-187071-FH DAVID ALAN WRIGHT, Defendant-Appellant.

________________ _______________ __________/

By order of November 9, 2005, we directed the prosec utor to answer defendant’s application and invited the At torney General to respond on behalf of the Michigan Department of Corrections. On order of the Court, both bri efs having now been filed and considered, the application for leave to appeal the February 28, 2005 order of the Court of Appeals is again considered, and it is DE NIED, because we are not persuaded that the question presented should be reviewed by this Court.

K ELLY , J., dissents and states as follows:

I would grant leave to app eal for the reasons stated in my dissenting statement in People v Conway (Docket No. 129431), ___ Mich ___ (2006).

M ARKMAN , J., dissents and states as follows:

I dissent from the majority’s decision to deny leave to app eal. MCL 768.7a(2) provides that the term of imprisonment for a person convicted of a felony committed while the person was on parole from a sentence for a previous offense “shall begin to run at the expiration of the remai ning portion of the term of imprisonment imposed for the previous offense.” Because there is no indication here that the Department of Corrections (DOC) added an additional peri od of incarceration for the previo us offense, I believe that defendant is likely entitled to 419 days of jail credit for time serv ed. I would grant defendant's application for leav e to appeal in order to rev iew the process by which the DOC calculates jail credit in this type of situation.2

Defendant broke into a g arage attached to a home in Oakland County, stole a car, and was arrested in Wayne County. He was co nvicted after a bench trial of receiving and concealing stolen property (RCSP) over $20,000, MCL 7 50.535, and sentenced on October 30, 2002, to 16 months to 10 years in prison, consecutive to the sentence for which he was on parole at the time of the offense (a separate breaking and entering offense). Over a year later, he pleaded guilty to home invasion, MCL 750.110a, for breaking into the aforementione d attached garage and was se ntenced in Oakland County on December 22, 2003, to 78 months to 20 years in prison, co ncurrent to the sentence for RCSP but consecutive to any sent ence for a parole violation th at may have resulted. The sentencing judge stated on th e record that he did not object to defe ndant receiving credit for the 419 days between the two sentencing proceedings if the DOC did not proceed on a parole violation. The judgme nt of sentence, howe ver, did not reflect this statement and was silent about jail credit. Defendant then moved in th e trial court to amend his judgment of sentence to reflect the judge’s statement on the record, but the trial court

denied the motion. The Cour t of Appeals denied defendant ’s delayed application for leave to appeal for lack of merit.

MCL 768.7a(2) provides:

(2) 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 impr isonment imposed for the later offense shall begin to run at the expir ation of the remaining portion of the term of imprisonment imposed fo r the previous offense . [Emphasis added.]

Defendant argues that as of October 30, 2002, his sentence be gan to run on the RCSP charge, so there could be no “remaining portion” of the prio r offense, i.e., he received no formal addition of time to his prio r sentence for violating parole. As such,

the sentence for the later home invasion conv iction (which arose from the same events as the RCSP conviction) sh ould have begun to run on that date.

Defendant was neither entitled to statut ory jail credit nor automatically precluded from having the time between sent ences count toward his new se ntence. It is within the

discretion of the DOC to determine how mu ch time defendant must spend on which sentence in fashioning a new parole eligibility da te. However, it app ears that there is no existing legal remedy for a defendant to obtai n this determination, because the DOC has not been exercising its discretion in this reg ard. Rather, as here, whether a defendant receives “credit” is arbitrarily de termined by how long it take s the defendant to proceed to sentencing on the new offen se, because it appears the DOC simply runs the new sentence from the date of sentencing, applying cred it only if the trial c ourt grants it. In other words, because of the DOC’s inaction with regard to parole violations, the time spent incarcerated before sentencing on the new offense becomes the de facto additional “remaining portion” of the senten ce imposed for the parole viol ation on the pr ior offense._______________________________________ __ 3

However, defendant is effectivel y in a Catch-22 situation b ecause the judge expressed a willingness to grant defendant credit if the DOC did not pro ceed on a parole violation, i.e., he deferred to the DOC to make the de termination, but the DOC simply deferred to the trial judge’s judgment of sentence.

Because the DOC has an apparent practice of simply starting a new sentence as of the date of sentencing -- regardless of how long the defendant has been incarcerated on the charge before sentencing -- without actually making a determination of a fixed additional period of time to be served for the parole viol ation, there is a potential for

substantial unfairness in cases such as the in stant one. Here, a defendant is serving presentence jail time that is neither formally imposed fo r a violation of parole, nor

credited to the sentence that is eventually imposed for the later crime. Because the length of that indefinite interim period of in carceration is not dependent on an official

determination of how much time should be served for a viol ation, but rather is solely dependent on the fo rtuity of how long it ta kes the criminal justice sy stem to proceed to a defendant’s final sentencing, the DOC’s practice in this regard leads to a result that seems wholly arbitrary. Similarly situated defendants might serve widely disparate interim periods of incarceration on the ba sis of such factors as how efficient or b acklogged the prosecutor is in a given county, whether the defendant chooses to pursue an appeal, or

even whether the date of sent encing has to be postponed becau se the judge calls in sick.

While defendant is not entitled to statut ory jail credit under MCL 769.11b, as he was not serving time because he was de nied or unable to post bond, he is entitled, as are equally situated defendants, see e.g., People v Conway , ___ Mich ___ (2006), to a decision regarding how much, if any, additi onal time must be serv ed for the parole violation. However, this is a decision th at seems never to be made by the DOC.

Because the current pro cess for determining peri ods of incarceration may be incompatible with a consistent rule of law, I believe that it requires this Court’s review. I would grant defendant’s appli cation for leave to appeal.

C AVANAGH , J., concurs in the statement of M ARKMAN , J.

d0502 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

May 5, 2006

Clerk