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STATE OF MICHIGAN 

COURT OF APPEALS 

MATTHEW MAKOWSKI, 

 Plaintiff-Appellant, 

UNPUBLISHED 

August 18, 2016 

v No. 327396 

Court of Claims 

GOVERNOR and SECRETARY OF STATE, LC No. 14-000260-MP 

 Defendants-Appellees. 

Before: RIORDAN, P.J., and SAAD and M. J. KELLY, JJ. 

PER CURIAM. 

 In this dispute over the denial of parole after having his sentence commuted, plaintiff, 

Matthew Makowski, appeals the opinion and order of the Court of Claims denying his request 

that it retain jurisdiction after our Supreme Court’s decision remanding Makowski to the parole 

board’s jurisdiction, see Makowski v Governor, 495 Mich 465; 852 NW2d 61 (2014), as 

amended on reh’g 497 Mich 862 (2014), and the parole board’s decision to deny him parole. On 

appeal, Makowski argues—on various grounds—that the board had no authority to deny him 

parole and the Court of Claims should have retained jurisdiction to ensure that the board paroled 

him as it was required to do. We conclude that the commutation reduced the severity of 

Makowski’s sentence by making him immediately eligible for parole, but did not mandate 

parole. Because the board had jurisdiction over Makowski and had the discretion to consider 

whether he was an appropriate candidate for parole, the Court of Claims correctly determined 

that there were no grounds for retaining jurisdiction to supervise the board’s decision-making 

process. Consequently, we affirm. 

I. BASIC FACTS 

 The circuit court sentenced Makowski to serve life in prison without the possibility of 

parole after a jury found him guilty of first-degree murder in 1988. Id. at 468. In 2010, the 

board considered Makowski’s application for commutation of his sentence and sent the 

application to the Governor with a favorable recommendation. Id. at 468-469. The Governor 

signed the commutation. It was then signed by the Secretary of State who affixed the Great Seal. 

Id. at 469. After the family of the victim expressed opposition, the Governor revoked the 

commutation. Id. at 469-470. 
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 Makowski sued the Governor and Secretary of State in 2011. He argued that the 

Governor lacked the authority to revoke his commutation once it was signed, sealed, and 

delivered. Id. at 470. The case eventually went to our Supreme Court and it determined that the 

Governor had validly commuted Makowski’s sentence and lacked the authority to revoke the 

commutation once made. Id. at 485-490. Accordingly, it ordered the Department of Corrections 

to reinstate Makowski’s sentence to “a parolable life sentence” and remanded him into the 

board’s jurisdiction. See Makowski, 495 Mich at 490. 

 After our Supreme Court remanded the case, the board issued a decision in October 2014 

expressing “no interest” in taking further action to parole Makowski. Makowski moved for 

clarification or rehearing of the Supreme Court’s decision; he complained that the Department of 

Corrections used the final sentence of Court’s decision to treat him as a person with a parolable 

life sentence instead of someone with a sentence commuted to a minimum term of years. He 

contended that the board already agreed to parole him when it sent the commutation 

recommendation to the Governor, and urged the Supreme Court to modify its opinion to restore 

him to exactly the status he would have had but for the Governor’s wrongful attempt to revoke 

the commutation. 

 In lieu of granting the motion, the Supreme Court entered an order amending the last 

sentence of its opinion to read: 

Accordingly, we reverse the judgment of the Court of Appeals. Consistent with 

the undisputed language of plaintiff’s commutation, we further order the 

Department of Corrections to reinstate plaintiff’s sentence to a minimum term of 

years—equivalent to the amount of time served as of the date of the Michigan 

Parole and Commutation Board’s decision to recommend that plaintiff’s sentence 

be commuted—to a maximum of life, and remand plaintiff to the jurisdiction of 

the parole board. [Makowski, 497 Mich at 863, amending on reh’g 495 Mich at 

490.] 

 Makowski then moved to have the trial court retain jurisdiction over the case because 

further remedial action might be needed. He explained that he had not been processed for parole 

even though all other prisoners granted a commutation were promptly released. Thereafter, the 

board again denied Makowski parole; it explained that Makowski minimized his responsibility 

for the crime and needed additional insight into his offense to assure that he did not pose a risk to 

the community. Makowski asserted that all the prisoners with mandatory life sentences granted 

a commutation during the Granholm administration were punctually processed for release, and 

that the import of the Supreme Court’s decision was that he too should be treated exactly as 

those prisoners. He argued that the Supreme Court did not remand the matter to the board to 

consider anew whether he should be released, but rather did so to process him for release. 

 In October 2014, while the motion to retain jurisdiction was still pending, the case was 

transferred to the Court of Claims, which then heard the motion. The Court of Claims issued an 

opinion and order explaining that it considered the gravamen of Makowski’s argument to be that 

the board violated a legal duty arising out of historical precedent and procedural implications 

rather than a statutory mandate. The court directed the parties to address whether the court 

properly understood the gravamen of the issue, and if it did, why the proper remedy was not to 

file a new action for habeas corpus or mandamus. The court further ordered the parties to 
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provide it with any legal authority pertaining to whether the board must parole a prisoner after 

the board recommends, and the governor grants, a commutation. 

 At a second hearing, Makowski maintained that the court should place him in the same 

position he would have been in had Governor Granholm not attempted to revoke his 

commutation. He characterized his commutation as effectively granting him parole, leaving the 

board with the ministerial duty to carry out the commutation. The Governor and Secretary of 

State argued that the commutation merely rendered Makowski eligible for parole. 

 In April 2015, the Court of Claims issued its opinion and order. It stated that Makowski 

had identified a “historical practice, but not an actual, obvious legal entitlement to an outright 

grant of parole.” The court concluded that the law did not provide that a commutation entitled 

him to parole. It then examined the language used in the commutation and determined that it 

simply made Makowski eligible for parole, but not entitled to it. The court opined that, if 

Makowski, felt that the board had not properly exercised its discretion, his recourse was to file a 

new cause of action. The court did order that the board could not consider or use any 

documentation conveyed by Governor Granholm or her agents in connection with the former 

Governor’s attempted revocation when considering Makowski for parole, but otherwise denied 

Makowski’s requests for relief. 

 Makowski then appealed in this Court and applied to the Supreme Court for permission 

to bypass this Court. The Supreme Court denied the request. Makowski v Governor, 498 Mich 

876; 868 NW2d 617 (2015). 

II. RIGHT TO IMMEDIATE PAROLE 

A. STANDARDS OF REVIEW 

 Makowski argues that the Court of Claims erred in various ways when it refused to grant 

his requested relief. This Court reviews de novo questions of constitutional law. People v 

Ackley, 497 Mich 381, 388; 870 NW2d 858 (2015). This Court also reviews de novo whether 

the trial court properly selected, interpreted, and applied the relevant statutes. Kincaid v 

Cardwell, 300 Mich App 513, 522; 834 NW2d 122 (2013). 

B. ANALYSIS 

 Makowski argues that the board had no authority to deny him parole once the Governor 

commuted his sentence. Specifically, he maintains that the Governor’s commutation entitled 

him to parole and the board’s refusal to parole him contravened the Governor’s exclusive 

authority to commute sentences. 

 Michigan’s constitution grants the governor the power “to grant reprieves, commutations 

and pardons after convictions . . . upon such conditions and limitations as he may direct, subject 

to procedures and regulations prescribed by law.” Const 1963, art 5, § 14. The power to 

commute a sentence does not alter the source or authority of the original sentence; only trial 

courts have the authority to issue a judgment of sentence. MCL 769.1(1). The Governor’s 

power to commute, rather, is the power to alter or amend an existing sentence to one that is less 

severe. See Kent Co Prosecutor v Kent Co Sheriff, 425 Mich 718, 725; 391 NW2d 341 (1986) 
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(opinion by BOYLE, J.). Makowski, therefore, mischaracterizes his amended sentence when he 

refers to it as a “Governor-imposed sentence.” In this case, the Governor exercised her authority 

to commute Makowski’s sentence by altering it from a sentence of life in prison without the 

possibility of parole to one with a minimum term equal to the time served as of a certain date, 

and a maximum term of life in prison.1 Although the Governor modified his sentence to a less 

severe sentence, Makowski’s sentence remained the sentence of the circuit court. Further, as 

amended, Makowski’s sentence was an indeterminate sentence whose minimum term he had 

already served; accordingly, the board had jurisdiction to consider him for parole. MCL 

791.234(1) and (2). 

 The board’s decision to deny parole even after the Governor’s decision to commute 

Makowski’s sentence also did not contravene the Governor’s exclusive authority to commute 

sentences. In this case, it is evident that the Governor did not amend Makowski’s sentence to 

one for time-served and did not explicitly order him to be paroled. The undisputed language of 

similar commutations does not order “release, or “parole,” but instead indicates that the prisoner 

is eligible for parole. Because the Governor did not specifically provide for Makowski’s release, 

but instead exercised her authority to alter his sentence to make him eligible for parole, the 

board’s exercise of its discretion and adherence to the normal procedures for paroling a prisoner 

do not unconstitutionally interfere with the Governor’s authority to commute a sentence. Had 

the Governor wanted to commute Makowski’s sentence to include immediate parole, she could 

have done so in express terms. 

 We are also unpersuaded by Makowski’s arguments concerning the Governor’s decision 

to set the minimum sentence to the date of the board’s recommendation; as Makowski notes, this 

date makes it possible for the board to rely on its prior proceedings leading to the 

recommendation for commutation as the grounds for paroling a prisoner whose sentence has 

been commuted, but it does not follow that setting that date amounts to an order removing the 

decision from the board’s discretion. There is simply nothing within the language of the 

commutation that requires the board to parole Makowski. Likewise, although the board’s 

members might have understood that a vote to recommend commutation amounts to a vote for 

parole, the recommendation is not in fact an order of parole. Consequently, the board was not—

in effect—reconsidering a grant of parole under MCL 791.236(2) by refusing to parole him after 

his commutation. 

 The fact that the board had routinely paroled prisoners who had been given similarly 

commutations without further hearings also did not deprive the board of its discretion to deny 

parole. A prisoner has no constitutional or inherent right to have his or her sentence commuted 

or commuted in a particular way. See Conn Bd of Pardons v Dumschat, 452 US 458, 465; 101 S 

Ct 2460; 69 L Ed 158 (1981). And a convicted felon’s expectation of clemency premised on a 

state agency’s prior practices does not give rise to a constitutionally protected right to clemency: 

 

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 The original commutation was destroyed. However, the parties do not dispute that Makowski’s 

commutation used identical language to the other commutations issued at the time. See 

Makowski, 495 Mich at 478 n 5. 
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A constitutional entitlement cannot “be created-as if by estoppel-merely because a 

wholly and expressly discretionary state privilege has been granted generously in 

the past.” No matter how frequently a particular form of clemency has been 

granted, the statistical probabilities standing alone generate no constitutional 

protections; a contrary conclusion would trivialize the Constitution. . . . [Id. 

(citations omitted).] 

Instead, any constitutional right must be grounded in state law: “The ground for a constitutional 

claim, if any, must be found in statutes or other rules defining the obligations of the authority 

charged with exercising clemency.” Id. As the Court of Claims correctly recognized, Makowski 

has not identified any state law that entitled him to the grant of immediate parole after the 

Governor amended his sentence. Because he has not established a constitutional or statutory 

right to be treated exactly the same as every other prisoner whose sentence was commuted using 

the same language, he has not established grounds for the continued assertion of jurisdiction by 

the Court of Claims.2

 The Court of Claims correctly determined that the board had jurisdiction over Makowski 

as a prisoner who completed the minimum sentence of his amended indeterminate sentence. 

MCL 791.234(1) and (2). It also did not err when it concluded that the board had the discretion 

to deny him parole.3

 Affirmed. 

/s/ Michael J. Riordan 

/s/ Henry William Saad 

/s/ Michael J. Kelly 

 

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 Because he only qualified for parole, Makowski’s due process rights included only those rights 

normally attending consideration of parole. The commutation left Makowski a mere “potential 

parolee who remains in prison” with “no liberty to protect.” In re Parole of Haeger, 294 Mich 

App 549, 575; 813 NW2d 313 (2011). “The mere hope that the benefit of parole will be 

obtained is too general and uncertain and, therefore, is not protected by due process.” Id.

(internal quotation marks and citation omitted). Therefore, we reject his claim that the Court of 

Claims erred by failing to further consider whether the board violated his right to due process. 

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 The question before our Supreme Court primarily involved whether the Governor could revoke 

a commutation. For that reason, whether the board had discretion to deny parole on further 

review was not properly before the parties until after the Supreme Court’s remand. Given the 

procedural posture, we conclude that the Governor and Secretary of State timely and properly 

asserted the board’s discretion as a defense to the continued exercise of jurisdiction.