MACOMB CNTY PROSECUTOR V ERIC THOMAS MASTERS
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STATE OF MICHIGAN
COURT OF APPEALS
MACOMB COUNTY PROSECUTING
ATTORNEY,
UNPUBLISHED
December 6, 2005
Plaintiff-Appellee,
v
No. 262716
Macomb Circuit Court
LC No. 05-000612-AP
ERIC THOMAS MASTERS,
Defendant-Appellant.
Before: Owens, P.J., and Fitzgerald and Schuette, JJ.
PER CURIAM.
Defendant appeals by leave granted from an order of the circuit court reversing the
decision of the Michigan Parole Board to parole defendant. We dismiss this appeal as moot.
I. FACTS
On January 30, 1996 plaintiff pleaded guilty to solicitation to commit first-degree
murder, MCL 750.157b. Defendant’s conviction arises from the murder of David Bartmess in
February of 1994. Defendant was not directly involved in the killing, but instead solicited a third
party to murder Bartmess at the request of Bartmess’ former business partner, Arthur Mann.
Defendant was sentenced on January 28, 1998 to 9 to 20 years’ imprisonment.
On October 18, 2004, the parole board granted defendant a two-year term of parole to
begin on February 24, 2005. In its reasons in support of granting parole, the parole board noted
that defendant’s offense was not sexually motivated, defendant accepted responsibility for his
crime and expressed remorse for his actions. In February 2005, the Macomb County Prosecutor
filed a delayed application for leave to appeal the parole board’s decision to parole defendant.
The prosecutor argued that the Board abused its discretion since defendant would have served
only 7 years of his 9-year minimum sentence, which was contrary to the expectations of the
sentencing judge and contrary to the “truth in sentencing” legislation passed after defendant’s
sentencing. The Parole Board did not intervene in the appeal, but responded in a February 22,
2005 letter which explained that defendant had served his minimum 9-year sentence less his total
686 days of jail and disciplinary credits and so was eligible for parole under MCL 791.233(c).
In an order dated February 17, 2005, the trial court granted the prosecutor’s application
and ordered that “the decision of the Parole Board granting Masters parole is reversed.
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Defendant shall remain incarcerated.” Defendant moved for reconsideration, arguing that
plaintiff’s delayed application was untimely, that he was never given the opportunity to respond
to plaintiff’s arguments, and that plaintiff failed to establish an abuse of discretion by the Board.
The circuit court granted defendant’s motion for reconsideration in a March 24, 2005 opinion
and order, finding that its determination on the merits had been premature. The circuit court
vacated that portion of its February 17, 2004 order reversing the Parole Board’s decision and
ordered the parties to submit briefs on appeal. The circuit court ordered that defendant remain
incarcerated pending a decision on the merits of the appeal.
On May 4, 2005, the circuit court reversed the Parole Board’s decision to grant parole to
defendant. The court noted the prosecutor’s argument that the Board abused its discretion by
paroling defendant after he had served only 7 years of his 9-year sentence, “contrary to the
expectations of the sentencing judge, society, and the victim’s family” but did not base its
decision on that argument or address that argument further. Instead, the circuit court found “that
the Parole Board abused its discretion in relying heavily on defendant’s remorse, which was
considered approximately 3 times.” Based on this finding the circuit court reversed the Board’s
decision to grant parole and remanded the matter to the Board for a new hearing.
On May 16, 2005, defendant applied for leave to appeal to this Court, arguing that the
Parole Board did not abuse its discretion with regard to granting defendant parole. This Court
granted leave to appeal but denied defendant a stay in the matter. At oral arguments, this Court
learned that while the appeal was pending, the parole board, pursuant to the circuit court’s order,
reconsidered its decision and denied defendant parole. This Court then directed the parties to
brief the issues of whether the circuit court had authority to remand the case to the parole board
and whether, because of the parole board’s subsequent decision, this appeal is now moot. We
conclude that the circuit court did have authority to remand the case to the parole board and that
the parole board’s subsequent decision make this appeal moot.
II. STANDARD OF REVIEW
This Court reviews a decision whether to grant or deny parole for a clear abuse of
discretion. MCR 7.104(D)(5)(b); In re Parole of Glover (After Remand), 241 Mich App 127,
129; 614 NW2d 714 (2000). An abuse of discretion exists when an unprejudiced person,
considering the facts upon which the decisionmaker relied, would say that there is no
justification or excuse for the decision. Id. A reviewing court may not substitute its judgment
for that of the Parole Board. Id.; Wayne Co Prosecutor v Parole Bd, 210 Mich App 148, 154;
532 NW2d 899 (1995).
III. ANALYSIS
A prisoner has no constitutional or inherent right to parole, but only a hope or expectation
of parole. People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005); Morales v Michigan
Parole Board, 260 Mich App 29, 48; 676 NW2d 221 (2003), citing Jones v Dep’t of Corrections,
468 Mich 646, 651; 664 NW2d 717 (2003). The circuit court reversed the parole board’s
decision to grant parole and remanded the case to the parole board for reconsideration. This
procedure was entirely proper under the court rules. MCR 7.104(7) and (8) state:
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(7) Motion to Remand. On timely motion by a party, or on the court's own motion,
the court may remand the matter to the parole board for an explanation of its
decision. The parole board shall hear and decide the matter within 28 days of the
date of the order, unless the board determines that an adjournment is necessary to
obtain evidence or that there is other good cause for an adjournment. The time to
file briefs on appeal under MCR 7.104(D)(4)(d) is tolled while the matter is
pending on remand.
(8) Parole Board Responsibility After Reversal or Remand. If a decision of the
parole board is reversed or remanded, the board shall review the matter and take
action consistent with the circuit court's decision within 28 days. If the circuit
court order requires the board to undertake further review of the file or to
reevaluate its prior decision, the board shall provide the parties with an
opportunity to be heard. An appeal to the Court of Appeals does not affect the
board's jurisdiction to act under this subsection.
See also Hopkins v Parole Bd, 237 Mich App 629, 645-646; 604 NW2d 686 (1999). Therefore,
the circuit court had the authority under the court rules to reverse and remand the case to the
parole board and because the parole board has reconsidered its decision and determined that
defendant is not eligible for parole, any review of the initial parole board’s decision is now moot.
Detroit Edison v Public Service Comm, 264 Mich App 462, 474; 691 NW2d 61 (2004).
Therefore, the appeal is dismissed.
/s/ Donald S. Owens
/s/ E. Thomas Fitzgerald
/s/ Bill Schuette
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