PEOPLE OF MI V ROBERT LEE JOHNSONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
April 14, 2009
Kent Circuit Court
LC Nos. 05-010285-FH,
Advance Sheets Version
ROBERT LEE JOHNSON,
Before: Servitto, P.J., and Donofrio and Fort Hood, JJ.
In Kent Circuit Court Docket No. 05-010285-FH, defendant pleaded no contest to a
charge of breaking and entering a building with intent to commit a felony or larceny, MCL
750.110. The trial court sentenced defendant as an habitual offender, second offense, to a prison
term of 2 to 15 years. In Kent Circuit Court Docket No. 05-011628-FH, defendant pleaded no
contest to a charge of larceny in a building, MCL 750.360, and the trial court sentenced him to a
concurrent prison term of 1-1/2 to 4 years. Defendant now appeals by delayed leave granted,
challenging only the trial court’s refusal to award him sentence credit for the time he served in
the county jail while he was awaiting sentencing. Because defendant was on parole at the time
he committed the current offenses, he was not entitled to sentence credit against the sentence for
the new offenses. Rather, defendant was entitled to credit against only the prior sentence on the
offense for which he enjoyed parole. We affirm. This appeal has been decided without oral
argument pursuant to MCR 7.214(E).
I. Basic Facts and Procedural History
In 1997, defendant was convicted of larceny from the person, MCL 750.357, and
sentenced on December 3, 1997, to 5 to 10 years’ imprisonment. After serving a portion of his
sentence, he was granted parole. While still on parole, on September 28, 2005, defendant was
arrested and charged with breaking and entering a building with intent to commit a felony or
larceny, MCL 750.110. Defendant was additionally charged on an earlier offense of larceny in a
building, MCL 750.360. After his arrest on the instant offenses, defendant was lodged in the
county jail and not granted bail because of a parole detainer.
Defendant ultimately pleaded no contest to the instant charges and remained in jail
awaiting sentencing. Defendant served 293 days in the county jail awaiting sentencing. At
sentencing, because defendant was on parole for his prior conviction at the time he committed
the instant offenses, the trial court declined to grant defendant sentence credit against the
sentences for the instant convictions for the time he served in the county jail. Parole was
revoked on the 1997 conviction, credit of 293 days was applied against the sentence on the
conviction for which parole was revoked, and defendant has now served his maximum sentence
on that conviction. Defendant now challenges the trial court’s refusal to grant jail credit of 293
days served in the county jail against the sentences for the instant convictions. He essentially
challenges the concept of “dead time,” i.e., time not credited to his current prison sentences.
II. Parole Detainee’s Entitlement to Jail Credit
A. Standard of Review
The question before us is whether the trial court erred as a matter of law, in denying
defendant, a parole detainee, 293 days of jail credit against the instant sentences. We review de
novo questions of law concerning statutory interpretation. People v Seiders, 262 Mich App 702,
705; 686 NW2d 821 (2004).
Defendant contends that he is entitled to sentence credit against the sentences for the
instant offenses pursuant to MCL 769.11b, which 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.
The primary goal in construing a statute is “to ascertain and give effect to the intent of the
Legislature.” People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002). To achieve this goal,
the Court must begin by examining the plain language of the statute. Id. If the language of the
statute is clear and unambiguous, it is assumed that the Legislature intended its plain meaning
and the statute is enforced as written. People v Stone, 463 Mich 558, 562; 621 NW2d 702
(2001). In discerning legislative intent, this Court gives effect to every word, phrase, and clause
in the statute. People v Hill, 269 Mich App 505, 515; 715 NW2d 301 (2006). The Court must
avoid construing a statute in a manner that renders statutory language nugatory or surplusage.
Id. “‘We construe an act as a whole to harmonize its provisions and carry out the purpose of the
Legislature.’” Id., quoting Macomb Co Prosecutor v Murphy, 464 Mich 149, 159-160; 627
NW2d 247 (2001).
Here, defendant was on parole at the time he committed the instant offenses. In Seiders,
this Court held that when a parolee commits a new offense while on parole, credit for time
served in jail before sentencing on the new offense is not available. The Court explained that
credit is available only when the defendant is “denied or unable to furnish bond” and that when a
defendant is held in jail on a parole detainer, bond is neither set nor denied. Seiders, supra at
707 (emphasis in original). Furthermore, this Court in People v Filip, 278 Mich App 635, 640;
754 NW2d 660 (2008),1 quoting People v Stead, 270 Mich App 550, 551-552; 716 NW2d 324
“When a parolee is arrested for a new criminal offense, he is held on a
parole detainer until he is convicted of that offense, and he is not entitled to credit
for time served in jail on the sentence for the new offense.” [Seiders, supra at
705, citing MCL 791.238(2).] Instead, a parole detainee convicted of a new
offense is entitled to have jail credit applied exclusively to the sentence from
which parole was granted. Credit is not available to a parole detainee for time
spent in jail attendant to a new offense “because bond is neither set nor denied
when a defendant is held in jail on a parole detainer.” Id. at 707.
Defendant argues that Seiders is distinguishable because bond was set in these cases, but
not posted. He relies on the reasoning of the Genesee Circuit Court in Filip in which the trial
court granted credit. However, this Court rejected that reasoning and reversed the circuit court in
Filip, supra at 643. As explained in Filip, MCL 791.238(1) provides that parole violators are not
eligible for bond pending resolution of parole violation proceedings. Time served pending
resolution of the parole proceedings is part of the sentence for the paroled offense and is to be
credited against that sentence. Where, as here and in Filip, the trial court errs in setting bond,
“the erroneously granted possibility of posting bond did not secure [defendant] any rights under
MCL 769.11b.” Id. at 642. Under those circumstances, a defendant awaiting trial or sentencing
“shall remain incarcerated.” MCL 769.11b.
C. Relationship Between MCL 768.7a(2) and MCL 791.238(1), (2), and (6)
Despite the foregoing, defendant argues that the manner in which the trial court credited
the time he served awaiting sentencing resulted in “dead time.” Defendant, as well as other
parolees, continue to argue that when parole is revoked or not revoked, they fail to receive jail
credit for time served while in custody in jail awaiting sentence, a parole detainer
notwithstanding. Here, defendant, like the defendant in Filip, claims that he is entitled to 293
days jail credit against the instant sentences by virtue of MCL 769.11b. In other words,
defendant contends that failure to credit this jail time against the 2005 sentences at issue, rather
than the previous 1997 sentence for which he was on parole, results in “dead time.” The concept
of “dead time,” however, is a misnomer because defendant properly received credit against the
sentence on which parole was granted and, as such, there is no “dead time.” The interplay of
MCL 768.7a(2) and MCL 791.238(1), (2), and (6) fully explains that the jail time is credited for
defendant and is neither forfeited nor dead as he suggests.
MCL 768.7a(2) provides:
If a person is convicted and sentenced to a term of imprisonment for a
felony committed while the person was on parole from a sentence for a previous
In Filip, our Supreme Court denied leave to appeal as moot because the defendant had been
discharged from parole. People v Filip, 482 Mich 1118 (2008).
offense, the term of imprisonment imposed for the later offense shall begin to run
at the expiration of the remaining portion of the term of imprisonment imposed
for the previous offense.
The relevant portions of MCL 791.238 provide in pertinent part:
(1) Each prisoner on parole shall remain in the legal custody and under the
control of the department. 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. Pending a hearing upon any charge of parole violation,
the prisoner shall remain incarcerated.
(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 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.
(6) A parole shall be construed as a permit to the prisoner to leave the
prison, and not as a release. While at large, the paroled prisoner shall be
considered to be serving out the sentence imposed by the court and, if he or she is
eligible for good time, shall be entitled to good time the same as if confined in a
state correctional facility. [MCL 791.238(1), (2), and (6).]
A defendant on parole, while physically released from the confines of prison, remains in
the legal custody of the Department of Corrections. He or she continues to serve out the
sentence as originally imposed by the sentencing court. And, if eligible for good time, he or she
is entitled to continue to accrue such time as if confined to prison. When a person on parole
commits another felony and is arrested and detained, the time of detention continues to accrue
toward the fulfillment of the originally imposed sentence because at no time has the convict been
released. MCL 791.238(1), (2), and (6).
A defendant convicted of a felony while on parole shall have the sentence for the later
conviction commence upon the expiration of the remaining portion of the former paroled
offense. MCL 768.7a(2). This section does not implicate the imposition of the original
maximum sentence. However, should the deputy director of the bureau of field services seek a
defendant’s return by issuing a warrant for the defendant’s return to prison and a hearing on a
charge of parole violation, the defendant shall be treated as an escaped prisoner and is liable,
when arrested, to serve out the unexpired portion of his or her maximum sentence. MCL
791.238(2). The liability for the maximum term of imprisonment is made manifest by revocation
of parole. Revocation of parole except for certain enumerated crimes is discretionary.2 MCL
791.240a(1). If parole is not revoked, the defendant continues to accrue time toward his ultimate
discharge for the conviction upon which he enjoys parole. MCL 791.238(6). If parole is
revoked, the defendant is obligated to serve out the balance of the maximum sentence for the
conviction that formed the basis for parole. MCL 791.238(5) and MCL 791.234.
The only time a defendant stops accruing time toward his or her ultimate discharge from
the Department of Corrections is when a parolee has a warrant issued for a parole violation and
the parolee remains at large. After a warrant is issued, “[t]he 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.” MCL 791.238(2).
In the case at bar, defendant was convicted of two felonies while on parole.
Concomitantly with conviction and sentencing for the current offenses on July 18, 2006, parole
was revoked, and the 293 days defendant served in the county jail awaiting disposition of his
new felony charges was credited against the sentence for which he had enjoyed parole.
Defendant then commenced serving his sentences consecutively on the 1997 conviction as well
as the instant felony convictions. At the time of the instant convictions, defendant expected to be
discharged from parole on September 29, 2006. Defendant remains in prison and has now
completed the maximum of his sentence for his 1997 crime. Because defendant’s maximum
sentence for his conviction of breaking and entering a building with intent to commit a felony or
larceny is 15 years, his maximum discharge date extends to October 26, 2021.3
In Filip, the defendant was also convicted of a felony while on parole. But, his parole
was not revoked. The jail credit there was the same as in this case because the jail time the
defendant served awaiting disposition of the subsequent offense was not credited toward his later
conviction, but credited against the conviction for which he was on parole. Upon sentencing for
the subsequent conviction, the defendant started accruing time immediately. Serving time for the
prior conviction and subsequent conviction ran concurrently from the date of sentence. And the
Offender Tracking and Information System reveals that the defendant was discharged from the
Department of Corrections before serving any maximum sentence.
See MCL 791.240a(2) for enumerated drug crimes and violent felonies, as defined in MCL
791.240a(12) incorporating MCL 791.236. MCL 791.236 (10) enumerates drug offenses, and
MCL 791.236 (19) enumerates violent felonies.
However, defendant’s earliest release date according to the Offender Tracking and Information
System, was July 17, 2008, the anniversary of the two-year minimum that defendant served on
the instant offenses.
Thus, regardless of whether parole was revoked, in neither case is the time served
awaiting a subsequent conviction not credited. Hence, there is no “dead time.”4
Because defendant suffered a revocation of parole, defendant has not established error
with regard to the trial court’s failure to award jail credit against his current sentences.
/s/ Pat M. Donofrio
/s/ Deborah A. Servitto
/s/ Karen M. Fort Hood
Recidivist parolees assert support for their arguments regarding dead time from two dissents,
People v Wright, 474 Mich 1138 (2006), and People v Conway, 474 Mich 1140 (2006). The
argument articulated is that the method used by the Department of Corrections for applying
sentence credit may be arbitrary or result in a denial of equal protection. In Wright, the facts
suggest that parole was not revoked. In Conway, it is impossible to determine if parole was
revoked. Clearly, in the situation where parole is revoked, there can be no issue on credit
because of consecutive sentencing following the statutory imposition of the maximum sentence.
Also, the application of credit is neither arbitrary, nor unequal for defendants similarly situated.
For all defendants experiencing revocation of parole, all time served awaiting disposition is
credited against the maximum sentence on the conviction for which parole was revoked. If the
maximum term of sentence is extinguished with jail credit remaining, the remaining credit will
apply to the later sentence. A sentence so served is served strictly in conformity with the
statutory mandate and is fixed with certainty. Such a crediting scheme is therefore neither
arbitrary nor unequal for all defendants so affected.