ROBERT CHRISTIAN HICKS V MICHIGAN PAROLE BOARD
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT C. HICKS,
UNPUBLISHED
January 9, 2001
Petitioner-Appellee,
v
No. 224807
Alleghan Circuit Court
LC No. 99-026053-AP
PAROLE BOARD,
Respondent-Appellant.
Before: McDonald, P.J., and Neff and Zahra, JJ.
PER CURIAM.
Respondent Parole Board appeals by leave granted the circuit court’s order reversing
respondent’s decision to deny petitioner Robert C. Hicks parole and ordering petitioner paroled.
We reverse.
In April 1993, a jury convicted petitioner of first-degree criminal sexual conduct, MCL
750.520b(1)(a); MSA 28.788(2)(1)(a), based on a 1989 incident involving an eleven-year-old
child. He was sentenced to eight to thirty years’ imprisonment. Petitioner has, at all times,
denied any involvement in the crime.
Petitioner’s first parole hearing was set for October 1999. Petitioner was evaluated as
having a “high probability of parole,”1 but was denied parole. Respondent’s reason for denial
was petitioner’s failure to participate in a sex offender group therapy program while imprisoned.
According to respondent, petitioner’s non-participation “preclude[d] the ability to adequately
assess reduction of risk, thus deviation was warranted.”
Petitioner appealed respondent’s decision to the circuit court. After reviewing
petitioner’s department of corrections file, the court found that respondent abused its discretion
in denying parole. The court found no objective and verifiable reasons to justify respondent’s
deviation from the parole guidelines. The court noted that petitioner’s file suggested he was a
model prisoner who participated in all programs except sex offender group therapy. The court
1
He was given a parole guideline score of “+7.” A score of “+4” or higher constitutes a “high
probability” score.
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reversed respondent’s decision and ordered that petitioner be released on parole pursuant to any
rules and conditions properly imposed by respondent.
Respondent filed a motion for reconsideration in the circuit court, relying on this Court’s
decision in Hopkins v Michigan Parole Board, 237 Mich App 629; 604 NW2d 686 (1999).
Respondent argued that the holding in Hopkins regarding separation of powers precluded the
circuit court from ordering petitioner’s parole. The court denied respondent’s motion.
In the meantime, petitioner was not released on parole, but instead in November 1999,
was reevaluated by respondent Petitioner was again evaluated as having a “high probability for
parole,”2 but was again denied parole. The parole notice of action states that respondent lacked
reasonable assurance petitioner would not become a menace to society or to the public safety. In
addition, respondent included its “substantial and compelling reasons for guideline departure,”
stating that petitioner’s likelihood for recidivism was difficult to determine because he “does not
take responsibility for the offense” and remains in “denial.” Respondent concluded that
petitioner “remains a risk to young children.”
Petitioner again appealed respondent’s decision to the circuit court. On January 19, 2000,
the court again found that respondent abused its discretion in denying parole. The court reasoned
that respondent ignored the rationale of the court’s prior ruling and denied parole on the basis of
generalized criteria that did not justify denial in light of the objective data in petitioner’s
department of corrections file. Insofar as respondent relied on Hopkins as authority precluding
the court from ordering parole, the court ruled that the relied-on portion of Hopkins is dicta and,
therefore, not binding precedent. Consequently, the court again reversed respondent’s denial of
parole and ordered that petitioner be released on parole. It is from that order that respondent now
appeals to this Court.
A parole board’s decision whether to parole a prisoner is reviewed for a “clear abuse of
discretion.” MCR 7.104(D)(5)(b); In re Glover (After Remand), 241 Mich App 127, 129; 614
NW2d 714 (2000). An abuse of discretion is generally found “where an unprejudiced person,
considering the facts on which the decisionmaker acted, would say there is no justification or
excuse for the ruling.” Id. In reviewing an appeal from a circuit court’s ruling on the parole
board’s decision to grant or deny parole, we do not specifically consider whether the circuit court
acted within its discretion in ruling on the parole board’s decision, but instead conduct a de novo
review of whether the parole board abused its discretion in deciding to grant or deny parole. See
id., Hopkins, supra, and Killebrew v Department of Corrections, 237 Mich App 650; 604 NW2d
696 (1999). We may not substitute our judgment for that of the parole board. MCR 7.104(D)(5);
In re Glover, supra. In reviewing an administrative decision, we determine whether the decision
was supported by competent, material and substantial evidence and whether it was contrary to
law. Oakland Co Probate Court v Dep’t of Social Services, 208 Mich App 664, 666; 528 NW2d
215 (1995).
2
That second evaluation resulted in a parole guideline score of “+6.”
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On appeal, respondent argues that the circuit court erred in ruling that it abused its
discretion in denying parole. Respondent also argues that the court exceeded its power in
ordering that petitioner be released on parole.
The parole board’s discretion is limited by statute. Whether the parole board abused its
discretion in granting or denying parole is determined by looking to the record and the statutory
requirements. Hopkins, supra at 633; Killebrew, supra at 653. MCL 791.233; MSA 28.2303
provides, in pertinent part:
(1) The grant of a parole is subject to all of the following:
(a) A prisoner shall not be given liberty on parole until the board has reasonable
assurance, after consideration of all of the facts and circumstances, including the
prisoner's mental and social attitude, that the prisoner will not become a menace
to society or to the public safety.
That section establishes the minimum standard that must be met before parole may be granted.
See Hopkins, supra at 633, Killebrew, supra at 653 (observing that § 233(1)(a) is the “[f]irst and
foremost” factor to be examined when determining whether a parole board abused its discretion)
and In re Parole of Johnson, 219 Mich App 595, 598; 556 NW2d 899 (1996) (characterizing
§ 233(1)(a) as “[t]he most basic limitation on the Parole Board’s discretion”).3
In addition to that statutory framework, our Legislature mandated the development and
use of parole guidelines.4 MCL 791.233e(1); MSA 28.2303(6)(1), provides:
The department shall develop parole guidelines that are consistent with section
33(1)(a) and that shall govern the exercise of the parole board's discretion
pursuant to sections 34 and 35 as to the release of prisoners on parole under this
act. The purpose of the parole guidelines shall be to assist the parole board in
making release decisions that enhance the public safety.
Each potential parolee is evaluated under the guidelines and receives a high, average, or low
probability of parole score. Killebrew, supra at 653-654; In re Parole of Johnson, supra at 598599; see 1999 AACS, R 791.7716 (expressing the factors to be considered in calculating a
guidelines score). However, the guidelines do not hamper the parole board’s discretion
absolutely. Killebrew, supra at 654. MCL 791.233e(6); MSA 28.2303(6)(6) provides:
The parole board may depart from the parole guideline by denying parole to a
prisoner who has a high probability of parole as determined under the parole
guidelines or by granting parole to a prisoner who has a low probability of parole
3
Additional statutory limits on parole decisions include the general requirements that a prisoner
serve his minimum sentence, make arrangements for honorable and useful employment, and earn
his high school diploma or equivalent before being eligible for parole. MCL 791.233(1)(b) to
(e); MSA 28.2303(1)(b) to (e).
4
See 1999 AACS, R 791.7715 et seq.
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as determined under the parole guidelines. A departure under this subsection shall
be for substantial and compelling reasons stated in writing. The parole board shall
not use a prisoner's gender, race, ethnicity, alienage, national origin, or religion to
depart from the recommended parole guidelines.
Thus, the parole board has discretion to deny parole to a high probability of parole prisoner for
substantial and compelling reasons set forth in writing.
In the present case, it is evident from the parole notice that respondent considered the
circumstances of petitioner’s crime. According to the eleven-year-old victim, petitioner was her
mother’s live-in boyfriend. On the morning of the incident, after the victim’s mother left for
work, petitioner entered the victim’s bedroom and forcefully raped the victim. Despite
petitioner’s assertion of innocence, a jury found him guilty of the offense. The trial court
determined that the offense warranted an eight-to-thirty-year prison sentence. The parole board
properly considered petitioner’s continued denial of involvement in the crime when assessing
whether petitioner presents a danger to society. See MCL 791.233(1)(a); MSA 28.2303(1)(a)
(requiring the parole board to consider “all of the facts and circumstances, including the
prisoner’s mental and social attitude”) and 1999 AACS, R 791.7715(2)(d)(i) (allowing the parole
board to consider whether a prisoner “[d]emonstrated willingness to accept responsibility for past
behavior” in determining if parole is in the best interests of society and public safety).
Petitioner’s crime was assaultive, sexually motivated, and involved a minor child over whom
petitioner held a position of trust. While the evidence suggests that petitioner has behaved
satisfactorily during his incarceration, under these circumstances, we cannot conclude that
respondent was without justification or excuse in determining a lack of reasonable assurance that
petitioner would not present a danger to society. MCL 791.233(1)(a); MSA 28.2303(1)(a).
The very same facts support the conclusion that respondent did not abuse his discretion in
departing from petitioner’s high probability of parole guideline under § 233e(6). In denying
petitioner parole for the second time, respondent stated that it was departing from the high parole
guideline because petitioner “remains a risk to young children.” In reaching that conclusion,
respondent considered the circumstances of the crime, the effect on the victim, and the difficulty
determining whether petitioner would re-offend as a result of petitioner’s refusal to admit
responsibility for the crime.5 Respondent noted that petitioner remained in “denial.”6
5
It is not the case that respondent considered only subjective factors in reaching its decision. See
Killebrew, supra at 655. It is evident that respondent considered the objective circumstances of
the crime, the effect on the victim and petitioner’s denial together in reaching the conclusion that
petitioner remains a risk to young children.
6
Whether there is medical evidence to support respondent’s conclusion that petitioner is in
“denial” is not dispositive of whether respondent properly denied parole. It is undisputed that
petitioner continues to deny any involvement in the crime. Even if petitioner is not technically in
“denial” in the medical sense, as discussed, infra, petitioner’s continued refusal to acknowledge
involvement in the crime contributed to respondent’s conclusion that petitioner continues to
(continued…)
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The department of corrections has been granted exclusive jurisdiction over the parole of
prisoners. MCL 791.204; MSA 28.2274. Consequently, the judiciary’s review of decisions by
the parole board is significantly limited by principles of separation of powers. See Const 1963,
art 2, § 2. As discussed, supra, our review of respondent’s decision is limited to whether it
clearly abused its discretion. MCR 7.104(D)(5)(b); In re Glover, supra at 129. Under that
standard, we must afford the parole board substantial deference and may reverse the parole
board’s parole decision only when, considering the facts on which the parole board acted, there is
no justification or excuse for its decision. Id. With that standard in mind, once an individual is
convicted by a jury and sentenced, a reviewing court is hard-pressed to conclude that the parole
board clearly abused its discretion in determining that the convicted felon is in denial for refusing
to accept responsibility for his actions.
In the present case, petitioner continues to deny guilt. We recognize that he is within his
right to do so. However, if respondent does not believe that petitioner is actually innocent and is
not convinced that he is worthy of parole, it may deny parole for substantial and compelling
reasons. It is evident that respondent believes petitioner committed the CSC offense.
Consequently, as evidenced by respondent’s statements within the parole notice, respondent
views petitioner’s denial of any involvement in the crime as compelling proof that he is a danger
to re-offend and remains a risk to young children. We cannot say that determination was without
justification or excuse.7 Whether members of this panel, were they on the parole board, would
have believed petitioner’s claim of innocence or would not have concluded that he remains a risk
to young children is irrelevant to our determination on appeal. We cannot substitute our
judgment for that of respondent, but instead are limited to reviewing whether respondent clearly
abused its discretion. We conclude that respondent’s reasons for departing from petitioner’s high
probability of parole guideline constitute substantial and compelling reasons under § 233e(6).
Moreover, respondent’s decision to deny parole was supported by competent, material and
substantial evidence regarding the crime, the effect on the victim, and petitioner’s refusal to
accept responsibility as it relates to his likelihood to re-offend. Oakland Co Probate Court,
(…continued)
present a danger to the public and we must afford respondent considerable deference in that
determination.
7
The specific issue whether a prisoner’s failure to take part in required therapy as a result of his
refusal to admit guilt may be considered a basis for denying parole is not before us. That issue is
currently before a different panel of this Court, Docket No. 225518, on respondent’s appeal from
a trial court ruling on petitioner’s separate mandamus action.
Furthermore, whether petitioner was properly denied admission into the required group therapy is
not determinative of whether respondent has provided substantial and compelling reasons for
denying parole. It is evident that to the extent respondent relied on petitioner’s failure to admit
guilt in denying parole, it did so on the basis that petitioner’s refusal evidenced a failure to take
responsibility for past actions and, therefore, a likelihood that petitioner would re-offend. It is
not the case that respondent denied parole the second time on the sole basis that petitioner did not
take part in therapy.
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supra. Accordingly, respondent did not clearly abuse its discretion in departing from the high
probability guideline and in denying parole.
Given that the circuit court erred in reversing respondent’s decision to deny petitioner
parole, we need not consider respondent’s additional argument challenging the court’s order that
petitioner be paroled.
Reversed.
/s/ Gary R. McDonald
/s/ Janet T Neff
/s/ Brian K. Zahra
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