Opinion
No. 343225
10-01-2019
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Erick Rosean ALLEN, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Michael G. Roehrig, Prosecuting Attorney, and Jonathan A. Jones, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Douglas W. Baker and Lindsay A. Ponce) for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Michael G. Roehrig, Prosecuting Attorney, and Jonathan A. Jones, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Douglas W. Baker and Lindsay A. Ponce) for defendant.
Before: Beckering, P.J., and Sawyer and Cameron, JJ.
Per Curiam. Defendant appeals as of right following his jury trial conviction of possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v ). Defendant was sentenced as a fourth habitual offender, MCL 769.12, to 30 to 180 months' imprisonment with zero days' credit for time served. We affirm.
On July 12, 2017, defendant was arrested for possession of cocaine, and on July 13, 2017, he was released on his own recognizance. Defendant was on parole at the time of his arrest. Defendant was rearrested on August 16, 2017, for missing a court hearing, and on August 17, 2017, the district court set a cash or surety bond of $5,000. On August 31, 2017, defendant was released from jail after posting bond.
On September 5, 2017, defendant was arrested again because he tested positive for cocaine. Also on that date, a parole detainer was signed asking the Monroe County Jail to hold defendant "until further notice." On September 8, 2017, the trial court set a cash or surety bond of $25,000. On January 8, 2018, defendant was convicted by jury of possession of less than 25 grams of cocaine. Defendant remained in jail until his sentencing hearing on March 1, 2018, when he was sentenced to 30 to 180 months' imprisonment with no jail credit.
Defendant argues that he is entitled to jail credit for time served between July 12, 2017, and July 13, 2017; between August 16, 2017, and August 31, 2017; and between September 5, 2017, and March 1, 2018, and that trial counsel was ineffective for failing to argue that defendant was entitled to jail credit for these periods of time. We disagree.
A party preserves an issue for appeal when it raises the issue in the trial court and the court considers the issue. People v. Fyda , 288 Mich. App. 446, 460 n. 35, 793 N.W.2d 712 (2010). Defendant did not argue in the trial court that he was entitled to any jail credit. Thus, this issue is unpreserved for appeal. Id.
"To avoid forfeiture of an unpreserved, nonconstitutional plain error, the defendant bears the burden of establishing that: (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." People v. Jones , 468 Mich. 345, 355, 662 N.W.2d 376 (2003). "To establish that a plain error affected substantial rights, there must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court proceedings." Id. at 356, 662 N.W.2d 376. This Court reviews de novo issues of statutory interpretation. People v. Beard , 327 Mich. App. 702, 707 n. 3, 935 N.W.2d 118 (2019).
The statute addressing jail credit for time served while awaiting sentencing provides:
Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to
sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant
credit against the sentence for such time served in jail prior to sentencing. [ MCL 769.11b.]
In People v. Idziak , 484 Mich. 549, 552, 773 N.W.2d 616 (2009), our Supreme Court announced that there is an exception to the jail credit statute:
We hold that, under MCL 791.238(2),[ ] the parolee resumes serving his earlier sentence on the date he is arrested for the new criminal offense. As long as time remains on the parolee's earlier sentence, he remains incarcerated, regardless of his eligibility for bond or his ability to furnish it. Since the parolee is not being held in jail "because of being denied or unable to furnish bond," the jail credit statute does not apply.
MCL 791.238(2) provides:
A prisoner violating the provisions of his or her parole and for whose return a warrant has been issued by the deputy director of the bureau of field services is treated as an escaped prisoner and is liable, when arrested, to serve out the unexpired portion of his or her maximum imprisonment. The time from the date of the declared violation to the date of the prisoner's availability for return to an institution shall not be counted as time served. The warrant of the deputy director of the bureau of field services is a sufficient warrant authorizing all officers named in the warrant to detain the paroled prisoner in any jail of the state until his or her return to the state penal institution.
This case presents a question that Idziak did not squarely address. What happens when a parolee is held before sentencing because he is unable to furnish bond and no parole detainer is in effect? Here, defendant was jailed between July 12, 2017, and July 13, 2017, and between August 16, 2017, and August 31, 2017, before, according to the prosecutor, a parole detainer was signed after defendant's arrest on September 5, 2017. While Idziak clearly holds that defendant is not entitled to jail credit from the time the parole detainer was signed on September 5, 2017, until the date of his sentencing on March 1, 2018, Idziak does not specifically address whether defendant is entitled to jail credit for his earlier periods of jail time.
In his brief on appeal, defendant states that he was never held on a parole detainer. The prosecutor, however, maintains that a parole detainer was issued on September 5, 2017. Because we conclude that defendant is not entitled to credit for time served regardless whether there was a detainer issued, we need not address this discrepancy. Moreover, while the prosecutor concedes that defendant is entitled to credit for 17 days served before the detainer was issued, we decline to accept that concession as it is erroneous.
But the Idziak Court did observe that when a parolee is arrested on a new offense, and is lodged in jail, the parolee is considered to still be serving his original sentence:
While on parole, the prisoner "shall be considered to be serving out the sentence imposed by the court," MCL 791.238(6), but he "remain[s] in the legal custody and under the control of the department," MCL 791.238(1). When there has been a "probable violation of parole," the DOC may issue a warrant for the parolee's return. MCL 791.238(1). Moreover, if "reasonable grounds" exist to believe that the parolee violated his parole, he may be "arrested without a warrant and detained in any jail of this state." MCL 791.239.
Under MCL 791.238(2), a "prisoner violating the provisions of his or her parole and for whose return a warrant has been issued by the deputy director of the bureau of field services ... is liable, when arrested, to serve out the
unexpired portion of his or her maximum imprisonment, " but the "time from the date of the declared violation to the date of the prisoner's availability for return to an institution shall not be counted as time served." (Emphasis added.) Because a paroled prisoner is considered to be serving his sentence as long as he remains in compliance with the terms of his parole, MCL 791.238(6), except "from the date of the declared violation to the date of the prisoner's availability for return to an institution," MCL 791.238(2), the second part of MCL 791.238(2) establishes that the time after "the date of the prisoner's availability
for return to an institution" is to be counted as time served against the parolee's original sentence. For a prisoner paroled and arrested again in Michigan, the parolee's "date of ... availability" is effectively the date of his arrest. See Browning v. Michigan Dep't of Corrections, 385 Mich. 179, 188-189, 188 N.W.2d 552 (1971). The phrase "date of ... availability" indicates that the parolee resumes serving his earlier term of imprisonment when arrested and detained in jail even though he has not yet been returned to the physical custody of the DOC. [ Idziak , 484 Mich. at 564-566, 773 N.W.2d 616 (citations omitted).]
The Court's discussion covers both the circumstances in which the DOC has issued a detainer and when it has not. That is, in either scenario, because the parolee is subject to arrest for a parole violation without a warrant, the parolee continues to serve his original sentence. In sum, while Idziak may not have squarely addressed the detainer issue, its analysis covers both circumstances in which a detainer is issued and in which one was not issued. And, in either case, the parolee is not entitled to any credit for time served on the new offense.
Furthermore, because the issue lacks merit, trial counsel was not ineffective for failing to raise the issue, as there was no prejudice to defendant. People v. Shaw , 315 Mich. App. 668, 672, 892 N.W.2d 15 (2016).
Affirmed.
Beckering, P.J., and Sawyer, J., concurred.
Cameron, J. (concurring).
This case poses a straightforward question: are parolees entitled to receive credit for the time they serve in jail under MCL 769.11b if they were denied bond or could not furnish bond on a new offense, or is the jail credit statute inapplicable to them because they are parolees? I agree with the majority that Michigan Supreme Court precedent prevents parolees from ever receiving jail credit under MCL 769.11b. However, I write separately to examine the merit of the prosecution's assertion on appeal that defendant, who is a parolee, is entitled to partial jail credit under MCL 769.11b for the time he was incarcerated due solely to his inability to furnish bond.
Jail credit is governed by MCL 769.11b, and statutes are interpreted according to their plain language. People v. Barrera , 278 Mich. App. 730, 736, 752 N.W.2d 485 (2008). Where the language of the statute is unambiguous, it must be applied as written. Id.
MCL 769.11b provides as follows:
Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.
Therefore, the plain and unambiguous language of MCL 769.11b provides that "any person" who serves time in jail because he is unable to post bond or is denied bond for the offense of which he is convicted is statutorily entitled to have the time he served in jail in relation to the "offense of which he is convicted" deducted from his future sentence.
However, in People v. Idziak , 484 Mich. 549, 773 N.W.2d 616 (2009), our Supreme Court held that the jail credit statute does not apply to parolees.
More specifically, the Idziak Court held the following:
[W]e hold that the jail credit statute does not apply to a parolee who is convicted and sentenced to a new term of imprisonment for a felony committed while on parole because, once arrested in connection with the new felony,
the parolee continues to serve out any unexpired portion of his earlier sentence unless and until discharged by the Parole Board. For that reason, he remains incarcerated regardless of whether he would otherwise be eligible for bond before conviction on the new offense. He is incarcerated not "because of being denied or unable to furnish bond" for the new offense, but for an independent reason. Therefore, the jail credit statute, MCL 769.11b, does not apply. [ Id . at 562-563, 773 N.W.2d 616.]
In other words, the time a parolee serves in jail before being sentenced on a new offense can only be credited against the balance of the parolee's remaining prison sentence—never against the sentence for the new offense that actually caused the defendant to be incarcerated in jail. The Idziak Court's rationale for not applying the jail credit statute to parolees is based on the notion that parolees are always considered to be under the jurisdiction of the Michigan Department of Corrections (MDOC); and, when parolees are arrested for a new offense, they automatically resume serving the balance of their prison sentence. See Id. , at 564-565, 773 N.W.2d 616. Thus, the Idziak Court reasoned that any time parolees are incarcerated for a new offense, they are incarcerated not because they were "denied or unable to furnish bond" for the new offense of which they are convicted, but instead because they have actually resumed serving their prison sentence. See id. at 566-567, 773 N.W.2d 616. Under this framework, a parolee is continually serving his or her sentence until he or she has fulfilled the maximum sentence or is discharged from parole.
The exception to this rule is that a parolee stops receiving credit on his or her prison sentence when the parolee violates parole and the MDOC issues a parolee arrest warrant.
A prisoner violating the provisions of his or her parole and for whose return a warrant has been issued by the deputy director of the bureau of field services is treated as an escaped prisoner and is liable, when arrested, to serve out the unexpired portion of his or her maximum imprisonment. The time from the date of the declared violation to the date of the prisoner's availability for return to an institution shall not be counted as time served. The warrant of the deputy director of the bureau of field services is a sufficient warrant authorizing all officers named in the warrant to detain the paroled prisoner in any jail of the state until his or her return to the state penal institution. [MCL 791.238(2).]
Although not addressed in Idziak , there is a considerable difference between MDOC arrest warrants issued under MCL 791.238(2) and MDOC parole detainers like the one issued in this case. An MDOC arrest warrant authorizes the arrest of suspected parole violators who are not already in custody. Our Legislature has made the clear policy decision that these not-in-custody parolees shall not receive credit against their prison sentence because they are considered to be "escaped prisoners." Parole detainers, on the other hand, are issued by the MDOC in order to ensure that county jails detain parolees who are already in jail until the parole hold is removed.
The prosecution's argument that defendant is entitled to partial jail credit under MCL 769.11b requires an understanding of parole detainers and how the MDOC uses them. Simply put, when a parolee is arrested for committing a new offense while on parole, the MDOC can issue a warrant for the parolee's return, MCL 791.238(1), or cause the parolee to be detained "in any jail of this state," MCL 791.239. In practice, this means that jails will not release parolees with a parole detainer regardless of whether the parolees have furnished the bond necessary for their release. The prosecution argues that when a parole detainer is placed on a parolee, the jail credit statute simply does not apply because the parolee is being held in jail on the parole detainer, not "because of being denied or unable to furnish bond." MCL 769.11b. I wholeheartedly agree with the prosecution that the plain language of the jail credit statute precludes defendant from receiving jail credit after the parole detainer was placed on him by the MDOC.
MCL 791.238(1) provides, in relevant part, the following: "The deputy director of the bureau of field services, upon a showing of probable violation of parole, may issue a warrant for the return of any paroled prisoner."
MCL 791.239 provides the following:
"A probation officer, a parole officer, a peace officer of this state, or an employee of the department other than a probation or parole officer who is authorized by the director to arrest parole violators may arrest without a warrant and detain in any jail of this state a paroled prisoner, if the probation officer, parole officer, peace officer, or authorized departmental employee has reasonable grounds to believe that the prisoner has violated parole or a warrant has been issued for his or her return under [MCL 791.238 ]."
However, as this case demonstrates, the MDOC does not always choose to place a detainer when a parolee is arrested for a new offense. In this case, the MDOC chose not to immediately place a detainer on defendant when he was arrested for committing a new offense while on parole. Instead, the MDOC opted to allow defendant the opportunity to complete a drug rehabilitation program. Because the district court issued defendant a personal recognizance bond, defendant was released from jail the following day, and he began participating in the program. However, after defendant missed several court dates, the district court issued a warrant for defendant's arrest. Defendant was rearrested and served an additional 15 days in jail; defendant served that jail time, according to the prosecution, "for no other reason than his inability to furnish bond." Defendant eventually posted bond and was released from jail to again participate in drug treatment. He was arrested less than a week later because he tested positive for cocaine. The MDOC placed a parole detainer on defendant the same day, and it remained in effect until the time of defendant's sentencing. On appeal, the prosecution "concedes ... that [defendant] is entitled to [17 days of jail credit] as there was no parole detainer at that time, and [defendant] was being held solely because he could not furnish bond."
After defendant was bound over to the circuit court, the court ordered defendant to post a cash or surety bond in the amount of $25,000.
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While I believe that the prosecution's argument is entirely consistent with the plain and unambiguous language of the jail credit statute, I must concur with the majority that Idziak ’s holding allows no room to apply MCL 769.11b to parolees.