4.8Habitual Offender’s Parole Eligibility and Judicial Authorization

MCL 769.12(4) provides:

“An offender sentenced [as an habitual offender] under [MCL 769.10, MCL 769.11, or MCL 769.12] for an offense other than a major controlled substance offense is not eligible for parole until expiration of the following:

(a) For a prisoner other than a prisoner subject to disciplinary time, the minimum term fixed by the sentencing judge at the time of sentence unless the sentencing judge or a successor gives written approval for parole at an earlier date authorized by law.

(b) For a prisoner subject to disciplinary time, the minimum term fixed by the sentencing judge.”

“MCL 769.12(4)(a) requires written approval before a prisoner otherwise selected for parole will become eligible for the actual grant of parole,” but “[i]t does not require . . . written approval before a prisoner can even be considered for conditional release.” Hayes v Parole Bd, 312 Mich App 774, 780 (2015). “Once that consideration is complete, if the [Parole] Board decides that parole is proper, then it must obtain [judicial] approval before granting parole, as required under MCL 769.12(4)(a).” Hayes, 312 Mich App at 781 (holding that a prisoner whose “net minimum date [had] passed” was entitled to a writ of mandamus compelling the Board to consider his parole request).

The language in MCL 769.12(4)(a) “plainly provides a court with discretionary authority to approve or not approve a request to designate a habitual offender eligible for early parole.” People v Grant, 329 Mich App 626, 634 (2019). Accordingly, “a circuit court [must] render a decision [under MCL 769.12(4)(a)] and proffer an explanation for the decision such that the ruling falls within the range of reasonable and principled outcomes.” Grant, 329 Mich App at 634-635. The trial court, which was the sentencing judge’s successor, abused its discretion “by refusing to consider defendant’s eligibility for parole before the calendar minimum date in deference to the minimum sentence imposed by the sentencing court 25 years earlier.” Id. at 638. MCL 769.12(4)(a) authorizes the sentencing judge or the judge’s successor to make the discretionary decision whether to approve eligibility for early parole, and “[n]owhere in the statutory language is it indicated that a successor judge must give deference to or abide by the sentencing judge’s decision to impose a particular minimum sentence for purposes of contemplating a defendant’s release before expiration of the minimum sentence.” Grant, 329 Mich App at 638.

“The ‘written approval’ requirement of MCL 769.12(4)(a) is simply a prerequisite for a prisoner who has been sentenced as an habitual offender to be eligible for early parole; it does not entail review of any Parole Board decision.” Grant, 329 Mich App at 635-636 (rejecting the defendant’s argument that the Parole Board’s decision to parole him should have been reviewed by the trial court for a clear abuse of discretion when deciding the request to approve his eligibility for early parole and clarifying that the trial court “owes no deference to the Parole Board” when deciding whether to exercise its discretion to approve eligibility for early parole under MCL 769.12(4)(a)).

Additionally, note that “the parole board may grant a medical parole for a prisoner determined to be medically frail.”¹ MCL 791.235(10).