MACOMB COUNTY PROSECUTOR V ANDREW PAUL OSANTOWSKI
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STATE OF MICHIGAN
COURT OF APPEALS
MACOMB COUNTY PROSECUTOR,
UNPUBLISHED
June 15, 2010
Plaintiff-Appellee,
v
No. 291628
Macomb Circuit Court
LC No. 2009-001207-AP
ANDREW PAUL OSANTOWSKI,
Defendant-Appellant,
and
PAROLE BOARD,
Intervening Appellant.
Before: METER, P.J., and SERVITTO and BECKERING, JJ.
PER CURIAM.
Defendant appeals by leave granted the trial court’s opinion and order reversing the
parole board’s decision to grant him parole. We affirm.
Defendant was convicted of making a false report or threat of terrorism, MCL 750.543m,
using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(f), and possession of a
firearm during the commission of a felony, MCL 750.227b. He was sentenced to a two-year
prison term for the felony-firearm conviction to be served consecutively to concurrent prison
terms of 30 months to 20 years for the other convictions. This Court affirmed his convictions but
ruled in favor of the prosecution on its cross-appeal regarding an offense variable (OV) issue.
See People v Osantowski, 274 Mich App 593; 736 NW2d 289 (2007), rev’d in part 481 Mich
103; 748 NW2d 799 (2008). The Supreme Court reversed this Court on the OV issue and
reinstated defendant’s 30-month to 20-year sentence. Osantowski, 481 Mich at 105, 112.
The underlying facts of the criminal case are set forth in great detail in this Court’s
opinion in Osantowski, 274 Mich App at 595-600. Briefly, defendant had conversations in an
Internet chat room in which he characterized himself as a “mass murderer” and communicated
plans for death and terror on his family members and others, including a police officer who was a
liaison officer for his school system. Defendant intimated there would be multiple killings at his
high school. After his arrest, numerous weapons were found at his home, as well as a significant
amount of ammunition and the components for making pipe bombs.
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As defendant neared the completion of his minimum sentence, the Michigan Department
of Corrections (“MDOC”) began considering him for parole. Ultimately, the parole board
reviewed various reports, including a “COMPAS”1 assessment that indicated a low probability
for violence, a medium probability for recidivism, and a recommendation of low supervision. A
parole guidelines worksheet indicated that defendant had a final score of six, which indicated a
high probability of parole. The parole board issued a notice of decision to grant defendant parole
for a period of 24 months. The board noted that defendant had accepted responsibility for his
crimes. It also indicated that he had completed self-help programming, had a positive attitude
about his challenges, and had identified gains from the program involvement. The board
concluded that there were reasonable assurances that he “would not become a menace to society
or the public safety.”
A notice of parole was sent to the prosecutor, who filed a claim of appeal in the trial
court. The parole board then suspended the parole decision to reconsider the matter. A new
COMPAS assessment was prepared showing that defendant’s risk probabilities for violence and
recidivism were low. However, he received “highly probable” scores of eight for current
violence, ten for criminal thinking observation, nine for depression and mental health, eight for
financial problems, and eight for cognitive/behavioral/psychological. In regard to the latter
category, defendant exhibited justifications and rationalizations for his crimes, refusal to take
responsibility, and blame for the victims. The assessment noted that “a more in-depth mental
health assessment” might be warranted and that defendant’s mental health history included
depression and suicidal tendencies. Following issuance of this COMPAS assessment, the parole
board issued a notice of decision, again granting defendant parole for 24 months.
The trial court issued an opinion and order finding that the parole board had erred in
granting parole to defendant.
The parole board’s grant or denial of parole is reviewed for a clear abuse of discretion.
MCR 7.104(D)(5)(b). The prosecutor has the burden of proof. MCR 7.104(D)(5). An abuse of
discretion occurs when the trial court’s decision is outside the range of reasonable and principled
outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). We agree
with the trial court that the parole board clearly abused its discretion.
MCL 791.233 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.
1
Defendant represents that this stands for “Correctional Offender Management Profiles for
Alternative Sanctions”.
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In this case, there were many facts and circumstances favoring defendant. Assessments,
including the COMPAS assessment, as well as the parole guidelines score, all indicated that
parole was warranted. Further, there were indicators that defendant had made significant
progress toward rehabilitation while in prison. He had no misconduct citations, had successfully
participated in numerous programs as well as therapy, and had an excellent work record.
Further, the board and defendant’s therapist determined that he had accepted responsibility for
his crimes.2
Nonetheless, we find that the parole board relied too heavily on defendant’s conduct
while incarcerated. It failed to consider the nature of defendant’s crimes and recent assessments
of defendant’s mental health. The individual factors on the COMPAS assessment are
particularly troubling, especially given the initial potential for a horrific crime. Having
threatened to murder numerous people, it was of concern that the initial overall COMPAS
assessment, even though changed shortly thereafter, indicated that defendant had a medium risk
of recidivism. Given the substantial danger to public safety, a medium risk of recidivism would
not be acceptable. Moreover, the therapy termination report also indicated that, although there
were positive indicators to the contrary, there were concerns with reoffending.
The parole board did conclude in the subsequent COMPAS report that the risk of
recidivism was low. But given the extreme nature of defendant’s crimes, the COMPAS score of
eight for current violence, ten for criminal thinking observation, nine for depression and mental
health, and eight for cognitive/behavioral/psychological were cause for considerable concern. So
was the indication that a scale score on the cognitive/behavioral/psychological factor and the
depression and mental health factor might warrant a more in-depth mental health assessment.
Also, given the implication that defendant’s crimes emanated from instability and perhaps
depression, a mental health/depression score of nine is disturbing, as is the score of eight for
current violence. These isolated scores, even though they did not trigger an overall result that
was alarming, were indeed alarming in and of themselves. They refute that there could be any
“reasonable assurance” that defendant would not “become a menace to society or to the public
safety.” MCL 791.233(1)(a).
Defendant posits that the trial court should not have focused on the COMPAS assessment
because it was only one factor in deciding whether he should be paroled. Further, the board
asserts that this assessment was a tool aimed at designing a plan for defendant while on parole
and should not be so heavily weighted in determining whether parole should be granted in the
first instance. However, the factors identified by this assessment, regardless of the assessment’s
intended purpose, compel a finding that defendant was not ready to be paroled.
The parole board argues that it could not deviate from the parole guidelines absent
substantial and compelling reasons. This is in fact what is provided in MCL 791.233e(6).
2
Defendant’s acceptance of responsibility at first blush appears inconsistent with the cognitive
behavior/psychological narrative on his COMPAS assessment. However, the narrative spoke of
what the scale score indicated, not of defendant’s actual remorse. The more specific assessments
are more reliable.
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However, there were substantial and compelling reasons to depart, and the board abused its
discretion by not acting on those reasons. Despite the “high probability of parole” arrived at
pursuant to the guidelines, there were indicators of no “reasonable assurance, after consideration
of all of the facts and circumstances, including [defendant’s] mental and social attitude, that [he]
will not become a menace to society or to the public safety.” MCL 791.233(1)(a).
Affirmed.
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
/s/ Jane M. Beckering
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