PEOPLE OF MI V RAYMOND HAROLD HAEGER (Authored Opinion)

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION November 1, 2011 9:05 a.m. Plaintiff-Appellee, v No. 297099 Alpena Circuit Court LC No. 92-004303-FH RAYMOND HAROLD HAEGER, Defendant-Appellant, and PAROLE BOARD, Intervenor. Before: MARKEY, P.J., and SAAD and GLEICHER, JJ. GLEICHER, J. The Michigan Parole Board granted Raymond Harold Haeger parole after he served approximately 17 years of a 15 to 30-year sentence. The Alpena County Prosecutor objected to Haeger s release and sought circuit court review of the Board s parole decision. The circuit court ruled that the Board had abused its discretion by granting parole despite that Haeger s probability for parole had actually declined since the Board s last consideration. Accordingly, the circuit court reversed the Board s decision.1 We affirm the circuit court s reversal of the Parole Board decision but on different grounds. The Parole Board failed to comply with certain regulatory provisions before reaching its parole decision. Specifically, 2011 AC, R 791.7715(5) mandates that a prisoner with a history of . . . [p]redatory or assaultive sexual offenses undergo a psychological or psychiatric evaluation before the release decision is made. There is no record indication that Haeger received such an evaluation after 1993. It is also unclear whether the Board considered Haeger s 1 This Court originally denied Haeger s application for leave to appeal, People v Haeger, unpublished order of the Court of Appeals, entered July 26, 2010 (Docket No. 297099), but the Supreme Court remanded for review as on leave granted. People v Haeger, 488 Mich 1033; 793 NW2d 234 (2011). -1- [d]evelopment of a suitable and realistic parole plan, as required by 2011 AC, R 791.7715(2)(c)(iii), because Haeger s Transition Accountability Plan (TAP) does not appear in the record. We are further concerned that Parole Board Member Charles Brown based his decision, in part, on Haeger s completion of additional sexual offender therapy (SOT) in 2009, despite that no documentation of that therapy exists in Haeger s file. In addition, holes in the record that the Parole Board failed to remedy persist even after the circuit court ordered the Board to supplement Haeger s file. Because the Parole Board violated its regulatory duty to defer its decision until Haeger received a psychological evaluation and its duty to consider Haeger s development of a parole plan, and because the Parole Board s failure to adequately and timely comply with the circuit court s remand order resulted in an incomplete record, we affirm the circuit court s decision to reverse the Parole Board s grant of parole to Haeger. I. PAROLE PROCESS IN MICHIGAN The Parole Board is a ten-member panel within the Michigan Department of Corrections (MDOC). MCL 791.231a. Prisoners come under the Board s jurisdiction after serving their minimum sentence, adjusted for any good time or disciplinary credits. MCL 791.233(1)(b)-(d); MCL 791.234(1)-(5). For each potential parolee, an MDOC staff member must evaluate the prisoner, ensure the completeness of the prisoner s file and prepare a summary Parole Eligibility Report (PER) to advise the Board. See In re Parole of Elias, ___ Mich App ___; ___ NW2d __ (Docket No. 300113, 2011), slip op at 2, citing MDOC Policy Directive 06.05.103, p 1;2 MCL 791.235(7). Parole Board staff members use this compiled information to score the prisoner s parole guidelines. MDOC Policy Directive 06.05.100, ¶ D. Statutorily-mandated parole guidelines form the backbone of the parole decision process. Elias, slip op at 2. The guidelines attempt to quantify various factors relevant to the parole decision in order to inject more objectivity and uniformity into the parole process. Id., quoting In re Parole of Johnson, 219 Mich App 595, 599; 556 NW2d 899 (1996). The Legislature directed the MDOC to refine the statutory guidelines by developing more detailed regulations. MCL 791.233e(1). Pursuant to this legislative mandate, the MDOC promulgated regulations outlining certain factors for the Board s consideration when making a parole decision. Elias, slip op at 3. The Board must determine whether parole is in the best interests of society and public safety, considering the prisoner s past and current criminal behavior, [i]nstitutional adjustment, [r]eadiness for release, and personal history and growth. 2011 AC, R 791.7715(2). Moreover, when a prisoner has a history of predatory or assaultive sexual offenses, the prisoner must undergo a psychological or psychiatric evaluation before the release decision is made. 2011 AC, R 791.7715(5). The MDOC regulations further direct the Board to consider all relevant facts and circumstances, including the prisoner s probability of parole as determined by the parole guidelines[.] 2011 AC, R 791.7715(1). The guidelines, in turn, require that scoring be based on the prisoner s time served, as well as the aggravating and mitigating circumstances of the 2 MDOC policy directives can be downloaded at <http://www.michigan.gov/corrections/ 0,1607,7-119-1441_44369--,00.html> (accessed September 8, 2011). -2- sentencing offense, the prisoner s prior criminal record, the number of major misconducts committed by the prisoner within the preceding one and five-year periods, the prisoner s score on risk screening scales, the prisoner s performance in recommended institutional programs, and [t]he prisoner s mental health status. 2011 AC, R 791.7716(3).3 The guideline factors are separated into eight sections, each with a list of subfactors to be scored and instructions on the point value to be assigned. Elias, slip op at 7, citing MDOC Policy Directive 06.05.100A, pp 19. The aggregated score is used to fix a probability of parole determination for each individual on the basis of a guidelines schedule. Prisoners are categorized under the guidelines as having either a high, average, or low probability of parole. Elias, slip op at 7, quoting Johnson, 219 Mich App at 599. A prisoner facing possible parole may also undergo an informal and non-adversarial interview conducted by one or more Board members assigned to the prisoner s panel. Elias, slip op at 7, citing MDOC Policy Directive 06.05.104, ¶ R. Following the parole interview, a Case Summary Report is generally created for the Board s review.4 See Elias, slip op at 7. As described in Elias, slip op at 7-8, the MDOC recently implemented the Michigan Prisoner Reentry Initiative (MPRI), which is designed to promote public safety and to reduce the likelihood of parolee recidivism, and to improve decision making at critical decision points, such as when the Board is considering whether to release a prisoner from incarceration on parole. Under the MPRI, the MDOC and Board are now required to prepare and consider additional reports, and in particular the Transition Accountability Plan (TAP).5 The TAP succinctly describe[s] . . . exactly what is expected for offender success. The MPRI Model: Policy Statements and Recommendations, Michigan Prisoner ReEntry Initiative, January 2006, p 5. An MDOC staff member must formulate a TAP with each prisoner, mostly to assist the prisoner s reentry into society, but also to assist the Board in rendering its parole decision. Elias, slip op at 8. The TAP analyzes the prisoner s risk factors, sets goals to decrease those risks and establishes a plan for the prisoner to reach his goals. Id. Under the MPRI, the Board is also now required to conduct a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) evaluation. The COMPAS program is a comprehensive risk and needs assessment system, which takes into account both static information (such as the prisoner s past criminal offenses) and dynamic data (such as the prisoner s evolving attitudes and mental condition). A case manager considers various characteristics of the offender and the offense and inputs scores into the COMPAS computer software program. The software generates a score ranking the offender s statistical likelihood of violence, recidivism, success on parole and other factors. [Id. at 9.] 3 The parole guideline factors are quoted in full in Elias, slip op at 5-7. 4 There are no case summary reports in the file submitted to this Court. 5 As noted, there is no TAP in the file submitted to this Court. -3- Although matters of parole lie solely within the broad discretion of the [Board], Jones v Dep t of Corrections, 468 Mich 646, 652; 664 NW2d 717 (2003); Hopkins v Parole Bd, 237 Mich App 629, 637; 604 NW2d 686 (2000); MCL 234(11), that discretion is clearly restricted by legislative limitations. In addition to creating the framework shaping the regulatory parole guidelines, Elias, slip op at 9, the Legislature dictates that [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. MCL 791.233(1)(a); Johnson, 219 Mich App at 598. Moreover, once the Board has rendered its decision, it must issue, in writing, a sufficient explanation for its decision to allow meaningful appellate review and to inform the prisoner of specific recommendations for corrective action if necessary to facilitate release. Glover v Parole Bd, 460 Mich 511, 519, 523; 596 NW2d 598 (1999); MCL 791.235(12). [Elias, slip op at 10.] II. PRIOR AND CURRENT PAROLE CONSIDERATIONS With this framework in mind, we now consider the history of Haeger s imprisonment and the progression of his parole reviews. In 1992, Haeger pleaded nolo contendere to breaking and entering an occupied dwelling with the intent to commit a felony inside, MCL 750.110b, and first-degree criminal sexual conduct committed during a felony, MCL 750.520b(1)(c). Haeger was sentenced to concurrent terms of 15 to 30 years imprisonment for each offense. Haeger s convictions arose from the forcible rape of his cousin in the early morning hours of February 2, 1992. After consuming a large amount of alcohol at an Alpena bar, Haeger began driving toward his home in Hillman. At approximately 3:00 a.m., Haeger passed the home of his cousin and decided to stop. Haeger later told police that he used a pair of his girlfriend s underwear to mask his face. He then entered his cousin s home by removing a basement window. Once inside, Haeger went into the kitchen and took a seven-inch knife from a drawer. Haeger made a noise, waking his cousin who had fallen asleep on the couch in the adjacent living room. The victim entered the kitchen and found a masked man, holding a knife, crouched down next to the refrigerator. Haeger, armed with the knife, lunged at the victim and the two struggled. Ultimately, Haeger pinned the victim face-down on the ground and forcibly penetrated her vagina with his penis. When Haeger left, he threatened to return and kill the victim if she told anyone what had happened. The victim later told police that she recognized the voice of her assailant as belonging to Haeger. Haeger admitted to his parents in front of police officers that he broke into the victim s home and raped her. The officers then transported Haeger to the Alpena Police Department where he gave tape recorded and written statements describing the offense in great detail. Upon imprisonment, the MDOC referred Haeger for a psychological evaluation. On October 6, 1992, the evaluating psychologist noted that Haeger was polite and cooperative, admitting to guilt of instant offense. After conducting various diagnostic tests, the psychologist noted that Haeger s evaluation reflects an immature, impulsive, alcohol abusive young male with a self-centered attitude, who seems to have had a deep feeling of psychosexual inadequacy coupled with alcohol abuse that infringed on his judgment. -4- In preparation for Haeger s appeal of his convictions, appellate defense counsel procured another psychological evaluation of his client. On April 9, 1993, Dr. Michael Abramsky submitted a report opining that Haeger should have received a much shorter sentence for his offense. Dr. Abramsky described Haeger as a rather shy, seclusive [sic] young man. Haeger told Abramsky that he blacked out and did not remember attacking his cousin. Haeger accused the police of feeding him the details of the crime. Dr. Abramsky conducted a Hare Psychopathy Check List, which measures tendencies toward chronic criminality. Based on that test, Dr. Abramsky noted a gross absence of psychopathic indicators. Specifically, Dr. Abramsky noted that Haeger show[ed] no history of pathological lying . . . [or] of being callous or having a lack of empathy. Moreover, Haeger s behavior has always been well controlled and there is no history of a loss of behavioral control. Based on the Hare evaluation, Dr. Abramsky believed Haeger had a low probability of recidivism and chronic criminality. Dr. Abramsky also evaluated Haeger under the Minnesota Multiphasic Personality Inventory (MMPI).6 [T]he MMPI did not show a patter[n] compatible with psychopathic deviance. Rather, Haeger s scores revealed an individual with learning disabilities and attention deficit disorder. Dr. Abramsky administered a Rorschach test to measure Haeger s more unconscious processes and determined that Haeger did not appear unusually aggressive or preoccupied with sex. Haeger was admitted into a sexual offender therapy (SOT) program in 2000. In order to be admitted into the program, Haeger had to [a]ccept[] responsibility for his sex crime, and [r]ecognize[] he has a problem and needs to change. Haeger was prematurely discharged from SOT on December 14, 2000, when he was transferred to a lower security facility. However, he completed the Relapse Prevention portion of the therapy. The treating psychologist indicated that Haeger s overall progress was rated seven on a ten-point scale, indicating good performance. A score of nine was required to be considered as achieving the goals of therapy. Haeger scored seven points for each therapeutic goal, which included: a. Develop a clear understanding of his responsibility for setting up and committing his sex offense. b. Examine his offense cycle, deviancy, thinking, beliefs, feelings, selfconcept and behavior that led to his sexual offense. c. Develop and demonstrate victim empathy. d. To honestly self-disclose to the group about his deviant sexual behavior. e. Examine his sexuality, morals, values, social and sexual relationship. 6 The MMPI tests personal and social adjustment based on a complex scaling of the answers to an elaborate true or false test. Merriman Webster Dictionary <http://www.merriamwebster.com/medical/minnesota%20multiphasic%20personality%20inventory> (accessed September 8, 2011). -5- f. Develop a practical relapse prevention plan. g. Learn self-control skills to shut down his deviant arousal pattern. The treating psychologist concluded: Mr. Haeger has made a positive effort to examine himself in a reflective manner. He has achieved a good understanding of his responsibility in the offense, offense cycle, victim empathy, has self-disclosed, developed a plan to prevent relapse and seems better able to shut down deviant arousal pattern. Haeger began working in the prison s food service department in 2001. Haeger s supervisors consistently gave him excellent reviews. Haeger was even commended for voluntarily transferring to a higher security, neighboring facility so he could continue to work while the lower security facility s kitchen was being remodeled. Because of good time credits, Haeger first became eligible for parole in 2004, after serving approximately 12 years of his original 15-year minimum sentence. In preparation for the Board s first parole review, an MDOC staff member prepared a PER. Consistent with regulatory requirements, Haeger s 2004 PER notes that he had no major misconduct tickets, interact[ed] well with staff and peers, and present[ed] no management problems. The report further indicates that Haeger received above average work evaluations and was on a waiting list to attend a job seeking skills class. Haeger participated in Alcoholics Anonymous from 1992 through 1994 and completed a Substance Abuse Phase II program in 2002. The PER notes that Haeger had completed SOT on December 14, 2000. Overall, Haeger had completed all . . . recommended programs and at least 2/3 of all program reports [were] above average. Based on Haeger s file and PER, the Board then calculated Haeger s parole guidelines. At that time, Haeger received an overall parole guidelines score of +6 points, placing him in the high probability of parole category.7 The PER, parole guidelines, and Haeger s prison file were then sent to a three-member panel of the Parole Board to render a parole decision. The Board determined that there existed substantial and compelling reasons to deviate from the parole guidelines and deny parole:8 During interview [Haeger] failed to convince [the Board] that he has gained significant insight into the cause of his deviant behavior. [Haeger] stated that he was young and immature and unwilling to deal with stress and blew up. The Board recommended 7 Haeger received -1 point for his active sentence variables, which reflected his use of a weapon, threat or force leading to injury, violence or cruelty beyond that necessary to commit the offense and commission of a sexual offense. Haeger received +1 point on his prior criminal record variables, +8 points on his institutional conduct variables and -5 points on his mental health variables, reflecting that he had committed a sexual assault stemming from a compulsive, deviant, or psychotic mental state. See 2011 AC, R 791.7716(3)(g). Haeger received +1 point each for his age, statistical risk and programming variables. 8 Elias, slip op at 10, citing MCL 791.233e(6), 2011 AC, R 791.7716(5). -6- that Haeger continue to earn positive work reports and program reports as well as good block or staff reports. The Board further recommended that Haeger provide additional demonstration of positive prison behavior. The Board again denied Haeger parole on July 13, 2005. Haeger continued to score +6 on the parole guidelines, but the panel noted that Haeger has not demonstrated enough insight into his crime, [Haeger] showed little or no empathy for the victim, which indicates that [Haeger] has not gain[ed] enough knowledge about his deviant behavior which was a brutal rape on his victim. The Board limited its recommended corrective actions to earning positive program reports and providing additional demonstration of positive prison behavior. On June 27, 2006, the Board denied Haeger parole a third time. Haeger s parole guideline score had increased to +7 points as he was assigned an additional point for his age variable. Moreover, the PER prepared for the Board s review indicated that Haeger had an above average work record while imprisoned and received excellent reports from the cell block guards. As its substantial and compelling reasons for denying parole, the panel noted, [Haeger] minimizes his behavior based on his being drunk. This was a very d[e]liberate, planned rape. [Haeger] laid in hidding [sic]. Used a mask. The [victim] was his cousin. He presents a belief that his victim is fine and didn t suffer any injury. No insight or remorse. The Board recommended that Haeger demonstrate responsible behavior by earning positive program reports and by avoiding misconduct citations. The Board further recommended that Haeger participate in MDOC-sanctioned activities, enter into or continually involve [him]self in substance abuse programming and identify and develop community resources to address special needs identified through group therapy. On June 21, 2008, the MDOC conducted a COMPAS risk assessment of Haeger. That assessment indicates that Haeger was a low risk for violence or recidivism. Haeger s scores showed a low risk of future substance abuse and revealed a positive outlook for Haeger s ability to secure employment, maintain housing and manage his finances once released. On the COMPAS Cognitive Behavioral/Psychological scale, Haeger scored two points, indicating the likely absence of blaming others, making excuses or minimizing the seriousness of [his] offense. [He is] unlikely to lead a high risk lifestyle or make impulsive decisions. However, the narrative statement accompanying this scale is inconsistent with the assigned score, noting that Haeger has a likely criminal personality. We now know that the inconsistency in the COMPAS assessment was the result of computer software error. In its motion for reconsideration following the circuit court s reversal of the Board s 2009 grant of parole, the Board finally presented an affidavit from an MDOC Department Specialist, Teresa Chandler. Chandler reviewed Haeger s COMPAS report and noted that the criminal personality scale is not a factor in considering the cognitive behavioral scale and was erroneously included on the report. The Board denied parole a fourth time on August 4, 2008. The panel indicated In spite of the completion of recommended [SOT], [Haeger] lacks the necessary insight into his deviant behavior. [Haeger] is still considered a risk to the general public safety. At that time, the Board continued Haeger s sentence for a 24-month period before reconsidering parole. The Board recommended that Haeger demonstrate responsible behavior by earning positive program reports and good block or staff reports of conduct and by avoiding . . . misconduct citations. -7- The Board also recommended that Haeger enter into or continually involve [him]self in substance abuse programming. On November 5, 2008, Haeger committed his first and only major misconduct while imprisoned. Haeger pleaded guilty at an administrative hearing to possessing dangerous contraband. Specifically, guards found within Haeger s cell various metal objects, which Haeger claimed to use in fix[ing] electronic devices. As a result of this misconduct, Haeger was temporarily placed in a higher security level and forfeited 90 days of good time credit. On February 11, 2009, Haeger was evaluated under the Vermont Assessment of Sex Offender Risk (VASOR) scale. The [VASOR] is a risk assessment scale for adult male sex offenders age 18 and older. It was originally designed to assist probation and parole officers in making placement and supervision decisions. Because the VASOR does not provide a comprehensive survey of all factors relevant to sexual offending, it is best used as a decision aid along with professional judgement [sic] and other appropriate tools. Although reliability and validity studies are encouraging, it still should be considered an experimental instrument. *** The VASOR is composed of two scales, a 13-item reoffense risk scale and a 6-item violence scale. The reoffense risk scale is designed for assessing the likelihood of sexual recidivism. The violence scale is designed for assessing the nature of an individual s violence history and offense severity. The interaction of these variables, reoffense risk and violence, are considered important factors for determining an individual s overall risk level. *** The scoring process ideally should include an interview with the individual, in addition to carefully reviewing correctional case file information. . . . Scores on the two VASOR scales are plotted on a scoring grid where their intersection falls into one of three risk categories; low, moderate, or high. These risk categories can be used to inform placement and supervision decisions. Offenders who score in the low range (i.e., low reoffense risk score and low violence score) are generally considered appropriate for community supervision and treatment. Offenders who score in the moderate range may or may not be considered appropriate for community placement. Offenders who score in the high range (i.e., high reoffense risk score and/or high violence score) are generally considered inappropriate for community supervision and treatment. For public protection purposes, incarceration is generally recommended for offenders -8- who score in the high range. [McGrath and Hoke, Vermont Assessment of Sex Offender Risk Manual (Research ed, 2001), p 1 (internal citations omitted).9] Notably, VASOR is designed to be scored easily by probation and parole officers and correctional caseworkers. A psychologist need not perform a prisoner s evaluation under this test. Id. at 2. On the VASOR reoffense risk scale, Haeger received ten points for the use of a potentially deadly weapon, five points for committing a sexual offense against an acquaintance, five points because his alcohol abuse had caused serious life disruptions and three points because his drug use had caused some legal and social problems.10 With a total reoffense risk score of 23, Haeger was considered a low risk for reoffense. On the violence scale, Haeger received a score of 30 points for the use of a potentially deadly weapon during the commission of a sexual assault, ten points for committing penile-vaginal penetration, and ten points for causing injury not requiring formal medical treatment. With a total violence score of 50, Haeger was placed in the high violence category. Considered together, Haeger was given a high overall risk classification on the VASOR assessment. On April 6, 2009, the MDOC prepared an updated PER for the Board s consideration, which included Haeger s 2008 major misconduct conviction. The PER indicates that Haeger s security level had been increased from Level I to Level II as a result. The PER describes Haeger s work performance as adequate but no longer includes a commentary on his performance. The PER notes that Haeger completed technical career counseling in 2008, substance abuse counseling in 2002, Alcoholics Anonymous in 1994 and SOT in 2000. On April 21, 2009, the MDOC prepared an Offender Supervision Summary Report and scored Haeger s parole guidelines. The summary report notes that Haeger posed a middle to potential high assaultive risk and a low property risk. The MDOC scored Haeger s parole guidelines as a long-term offender. Haeger received a weighted score of -1 point for his active sentence variables and +1 point for prior criminal record variables. While Haeger had previously received favorable scores on the institutional conduct variables, his 2008 major misconduct reduced this section score to 0. The MDOC noted that Haeger s placement in the middle to potential high risk of assault and low property risk categories required a score of +1 point for the statistical risk variables. Haeger received a score of +2 on the age scale reflecting that Haeger was less likely to engage in further criminal activity given his more mature age. Haeger had received at least one adequate report and no inadequate reports from recommended prison programs, which also equated to a score of +2. Because Haeger had committed a sexual assault, he was given -5 under the mental health variables. Because of his recent major misconduct, Haeger s overall parole guideline score was reduced to 0 points, placing him, for the first time, in the average probability of parole category. 9 This manual can be accessed at <www.csom.org/pubs/VASOR.pdf> (accessed September 8, 2011). 10 There is no indication in the record that Haeger ever abused any substance other than alcohol. -9- On June 26, 2009, two members of the Parole Board panel voted to grant Haeger parole, citing Haeger s acceptance of responsibility for his past offenses, satisfactory block reports, adequate involvement in work assignments, completion of vocational counseling, completion of substance abuse programming, and maintenance of family and community support while in prison. The Board noted, however, that Haeger s parole was contingent upon the successful completion of MPRI InReach Phase. We presume that the Board s reference to the InReach Phase means completion of inreach programming [provided] to prisoners eligible for parole. MDOC Policy Directive 03.02.101, p 1, ¶ A. In order to receive in-reach programming, a prisoner must be transferred to a facility that provides such services. Id., ¶ E. Haeger is currently housed in the Cooper Street Correctional Facility, and was previously housed in the Pugsley and Ryan Correctional Facilities, which are all designated MPRI in-reach facilities. Id., Attachment A. The record does not identify the type of services provided to Haeger. However, a September 30, 2009 referral indicates that Haeger had completed programming. III. CIRCUIT COURT REVIEW OF PAROLE BOARD DECISION The Alpena County Prosecutor appealed the Board s grant of parole to the circuit court. The circuit court initially determined that the Parole Board had not provided sufficient information regarding its decision to grant parole and, therefore, the court was unable to adequately review the Board s decision. On September 1, 2009, the court remanded the matter to the Parole Board for reconsideration and, if necessary, a more complete explanation of why it is convinced Mr. Haeger will not become a menace to society or to the public safety. The Board contends that it reconsidered the grant of parole and simply reaffirmed its decision. Accordingly, the Board issued a new decision ordering Haeger s release on parole. The Board did not provide any additional support for its decision at that time. The prosecution renewed its application for leave to appeal, noting the lack of positive record evidence since the 2008 parole denial. On January 25, 2010, the Parole Board finally provided the court with affidavits from the panel members explaining their decision to grant parole to Haeger. Charles Brown stated that he interviewed Haeger in May 2009, and he felt that Haeger demonstrated insight, empathy, and responsibility for the crime he was involved in. Haeger admitted to Brown that he raped his cousin after breaking into her home and was motivated because he wanted to show [he] was a man. Brown further stated that Haeger made it clear that he had learned his triggers by attending [SOT], and was blunt, honest, and candid about what he did, including acknowledgement that he had threatened to kill the victim. Brown indicated that he reviewed the COMPAS and VASOR assessments, which described Haeger as a low risk to sexually reoffend. Brown noted that Haeger was also required to attend additional [SOT] before parole was finalized. He completed this program successfully on September 30, 2009. 11 Brown acknowledged that Haeger had committed a major misconduct in 2008. Ultimately, Brown argued that Haeger would be paroled with many special conditions in 11 Nothing in the record supports this assertion. -10- addition to the standard protocol and, after considering the seriousness of Haeger s offense, Brown determined that Haeger had made a positive change. Miguel Berrios stated that he reviewed the reports from all MDOC recommended programs and specifically noted that Haeger completed SOT with positive reports. Berrios also reviewed the COMPAS and VASOR assessments, which showed Haeger to be a low risk for sexual reoffense. Berrios described Haeger s general institutional conduct as good with the exception of the 2008 misconduct. Berrios indicated that he did not personally interview Haeger, but reviewed the information from the interview with Brown. Berrios felt that Haeger had lowered his chances of reoffending and being a risk to society and had made good progress toward re-entering society. Ultimately, the circuit court reversed the Parole Board s decision to grant parole to Haeger. The court provided the following justification for its decision: [A]s noted by the Parole Board in its brief, [t]he common theme for the denials appears to be the member s belief that the prisoner failed to show proper insight concerning his crime. Indeed, in spite of somewhat favorable evaluations used by the [MDOC], this was typically the overriding factor in the Parole Board s decision not to grant parole. Their denials repeated, over and over, his lack of significant insight into the cause of his deviant behavior and rationalization that he had been young and immature . . . and blew up ; he showed little or no empathy for the victim ; minimizes his behavior based on his being drunk ; and went so far as to suggest that the victim is fine and didn t suffer any injury, reflecting an absence of insight or remorse ; and generally lacks the necessary insight into his deviant behavior. Yet even as Mr. Haeger s major contraband violation reduced his probability of parole from high to average, the Parole Board suddenly changes its mind, on the basis of no reasons in the record, and decides that Mr. Haeger s past history of deflecting responsibility for his actions is cured and that he now accepts responsibility for his behavior. To the extent that there are any reasons in the record at all since Mr. Haeger was most recently denied parole, they tend not to reflect well on Mr. Haeger. A COMPAS evaluation of Mr. Haeger, dated June 6, 2008, is generally positive but eviscerates it own credibility with the total disconnect between its evaluation of his Behavioral/Psychological condition ( likely absence of blaming others, making excuses or minimizing the seriousness of the offense . . . unlikely to lead a high risk lifestyle or make impulsive decisions ) and the accompanying statement which says that Mr. Haeger has a likely criminal personality which may include impulsivity, risk-taking, restlessness/boredom, absence of guilt (callousness), selfishness and narcissism, interpersonal dominance, anger and hostility, and a tendency to exploit others. Additionally, Mr. Haeger was scored on the VASOR system, dated February 11, 2009, which graded him at a high risk level. Yet, with only these evaluations of Mr. Haeger as further developments of his parole eligibility, the Parole Board departed from four prior denials of parole (including its own timeline, which had scheduled a 24-month -11- interim before reconsidering Mr. Haeger s parole status) to suddenly grant him parole. To be sure, Mr. Haeger has filed an extremely well-argued brief in defense of being granted parole, and the Court does not wish to trivialize his efforts at that or rehabilitation. The issue here, however, is the acceptability of the Parole Board s actions. While Mr. Haeger may or may not have come to accept his own responsibility for what happened in 1992, there is no evidence in the record that he has. The Parole Board has consistently denied him parole on this basis, and then suddenly decides he has satisfied their standards, without any evidence of gradual improvement or the other gradations in their observations of his behavior that would be consistent with such a change of heart. Indeed, to the extent that there is anything in the record that would induce the Parole Board to change its mind, it is the extremely troubling COMPAS evaluation and the unflattering VASOR score. Ignoring these tests, or cherry-picking only the most favorable elements of them in order to rationalize what the Parole Board had previously considered to be overwhelming evidence against granting parole, is an arbitrary act which abuses the discretion vested in the Parole Board to make principled decisions. [Internal citations omitted; emphasis in original.] Following the court s decision, the Parole Board and Haeger both filed motions for reconsideration. At that time, the Board finally supplied the court with Teresa Chandler s affidavit regarding the computer software error on Haeger s COMPAS report. The court denied the motions for reconsideration and, as a result, Haeger remains in prison. IV. STANDARD OF REVIEW Judicial review of the Board s decision to grant parole is limited to the abuse of discretion standard. Wayne Co Prosecutor v Parole Bd, 210 Mich App 148, 153; 532 NW2d 899 (1995). Either the prosecutor or the victim of an offense may appeal to the circuit court when the Board grants a prisoner parole. MCL 791.234(11); Morales v Parole Bd, 260 Mich App 29, 35; 676 NW2d 221 (2003). The challenging party has the burden to show either that the Board s decision was a clear abuse of discretion or was in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation. MCR 7.104(D)(5). An abuse of discretion occurs when the trial court s decision falls outside the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). Importantly, no reviewing court may substitute its judgment for that of the Board. Morales, 260 Mich App at 48. [Elias, slip op at 19.] V. HAEGER S CONSTITUTIONAL CHALLENGES LACK MERIT Haeger contends that the circuit court ordered the Parole Board to deny him parole and thereby violated the separation of powers doctrine. We disagree with Haeger s interpretation of the court s order. -12- MCR 7.104(D)(8) governs the conduct of the Parole Board after a circuit court reverse[s] or remand[s] a parole decision as follows: 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. This Court extensively described the separation of powers between the judiciary and the Parole Board, an arm of the Executive Branch, and the interplay of the Court Rule in Hopkins, 237 Mich App at 642: MCR 7.104(D)(8) contemplates that a Parole Board decision whether to grant parole may be reversed or the matter may be remanded. In reversing a Parole Board decision, the circuit court simply undoes it; to reverse means to overthrow, vacate, set aside, make void, annul, repeal, or revoke; as, to reverse a judgment, sentence or decree of a lower court by an appellate court, or to change to the contrary or to a former condition. To reverse a judgment means to overthrow it by contrary decision, make it void, undo or annul it for error. Black s Law Dictionary. In remanding a decision to the Parole Board, the circuit court does not specifically overrule it, but simply returns it to the Parole Board for some further consideration or activity. To remand is to send back. The act of an appellate court when it sends a case back to the trial court and orders the trial court to conduct limited new hearings or an entirely new trial, or to take some other further action. Id. Consistent with the definitions of reverse and remand, Hopkins held that MCR 7.104(D)(5)12 allows that 12 This court rule provision states: Burden of Proof. The burden shall be on the appellant to prove that the decision of the parole board was (a) in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation that is exempted from promulgation pursuant to MCL 24.207, or (b) a clear abuse of discretion. -13- the circuit court may review the Parole Board s decision to ensure that the board complied with the constitution, the statutory provisions, and applicable administrative rules, and, if so, that the board did not otherwise commit a clear abuse of discretion. As MCR 7.104(D)(8) contemplates, the court may reverse the Parole Board s decision or order further action consistent with the applicable constitutional, statutory, and administrative provisions. While the court may order that the Parole Board conform its conduct to the applicable provisions, no applicable provision authorizes the court to order that the Parole Board release a prisoner on parole. [Hopkins, 237 Mich App at 645-646.] In this case, the circuit court did not order the Parole Board to deny Haeger parole. Rather, the court held that the Board s decision was inconsistent with the objective factors outlined in the statutes and regulations and the facts appearing on the record. The circuit court declined to simply remand the decision to the Board under MCR 7.105(D)(7), which provides: 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 court had already remanded pursuant to (D)(7) on September 1, 2009, and the Board failed to adequately explain its decision. Accordingly, the court proceeded under (D)(8) and reversed the Board s decision. The Board must now review the matter and take action consistent with the circuit court s decision, MCR 7.104(D)(8), by conform[ing] its conduct to the applicable constitutional, statutory, and administrative provisions. Hopkins, 237 Mich App at 645-646. We also reject Haeger s contention that he was denied due process of law because the circuit court deprived him of his right to parole without providing an adequate opportunity to be heard.13 Haeger argues that once the Board decides to grant parole, the prisoner has a vested liberty interest, regardless of whether the prisoner remains in prison pending release. Haeger further contends that he was unable to respond to the prosecutor s application for leave to appeal in the circuit court and the court was required to conduct a hearing rather than decide the issue on the briefs. Haeger s argument is fatally flawed. A prisoner enjoys no constitutional or inherent right to be conditionally released from a validly imposed sentence. Jones, 468 Mich at 651; Morales, 260 Mich App at 48. See also Greenholtz v Inmates of the Nebraska Penal & Corrections Complex, 442 US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979). Where parole is granted and the prisoner is actually released from prison on parolee status, that parolee gains an 13 In the circuit court, Haeger asserted that his right to due process had been violated by the prosecutor s failure to notify him of his right to respond to the application for leave as required by MCR 7.104(D)(2)(c)(iii)(A). However, the prosecutor did notify Haeger of his rights on the SCAO-approved form on August 1, 2009. -14- interest in continued liberty. Although the parolee is still under the supervision of the MDOC, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Morrissey v Brewer, 408 US 471, 482; 92 S Ct 2593; 33 L Ed 2d 484 (1972). Therefore, when a parolee commits a parole violation leading to revocation of his parole, the parolee has a due process right to notice and the opportunity to be heard. Jones, 468 Mich at 651-653. However, a prisoner who remains in prison has no liberty to protect. As noted by the United States Supreme Court, parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires. Greenholtz, 442 US at 9. A prisoner awaiting release on parole remains confined and thus subject to all of the necessary restraints that inhere in a prison. Id. The mere hope that the benefit of parole will be obtained is too general and uncertain and, therefore, is not protected by due process. Id. at 11. In any event, Haeger received notice and had an opportunity to be heard before the circuit court reviewed the prosecutor s application for leave to appeal the Parole Board s decision. The prosecutor notified Haeger of his intent to appeal the Parole Board s decision. Haeger then filed a motion to dismiss the prosecutor s application for leave to appeal on September 11, 2009. The circuit court granted the prosecution s application on November 3, 2009, and scheduled a hearing for November 25, 2009. Once the circuit court granted the application for leave to appeal, Haeger filed two separate briefs supporting the Parole Board s decision to grant him parole. The circuit court ultimately cancelled the November 25 hearing and proceeded on the briefs alone as no party had requested argument pursuant to MCR 7.101(K) (in an appeal to the circuit court, A party who has filed a timely brief is entitled to oral argument by writing ORAL ARGUMENT REQUESTED in boldface type on the title page of the party s brief. ). Haeger never objected to the court s order and failed to raise this complaint in his motion for reconsideration filed after the circuit court s opinion. We will not fault the circuit court for failing to provide an aggrieved party with a formal hearing when that party never requested one. VI. THE PAROLE BOARD DID NOT CONFORM ITS CONDUCT TO THE STATUTES AND REGULATIONS Although we disagree with the reasoning employed by the circuit court, we agree with its determination to reverse the Parole Board s grant of parole to Haeger. MCR 7.105(D)(5)(a) provides that a prosecutor appealing a Parole Board decision may show that the decision was entered in violation of . . . a statute, an administrative rule, or a written agency regulation . . . . From the record before this Court, it appears that the Parole Board violated its duty to consider[] all relevant facts and circumstances, 2011 AC, R 791.7715(1), in determining whether parole is in the best interests of society and public safety. 2011 AC, R 791.7715(2). 2011 AC, R 791.7715(2)(c)(iii) provides that the Parole Board may consider a prisoner s readiness for release as evinced by his [d]evelopment of a suitable and realistic life plan. Since as early as 2005, the MDOC has used TAPs to assist prisoners in reaching this goal. -15- According to an October 2005 MDOC report, all state correctional facilities were scheduled to be involved in the MPRI model by September 2007.14 And, as noted, the development of TAPs is the lynchpin of the MPRI model.15 In 2008 PA 245, § 403.8, the Legislature made the MDOC s 2009 appropriation contingent upon the imposition of a TAP requirement: The [MDOC] shall ensure that each prisoner develops a [TAP] at intake in order to successfully reenter the community after release from prison. Each prisoner s [TAP] shall be reviewed at least once each year to assure adequate progress. Although the MDOC did not formally require that TAPs be prepared with potential parolees until March 2010,16 it is apparent that these reports were already in widespread use by then. However, it appears from the record before us that the MDOC did not develop a TAP with Haeger to outline his transition into society. More importantly, the Parole Board violated the mandate of 2011 AC, R 791.7715(5) by making its parole decision in the absence of evidence that Haeger participated in a psychological or psychiatric evaluation. The regulation provides that a prisoner with a history of predatory or assaultive sexual offenses must undergo such an evaluation before the Parole Board may render a parole decision. Haeger underwent psychological evaluations in 1992, upon his intake to the prison system, and in 1993, in preparation of appeal from his convictions and sentences. Nothing in the record indicates that Haeger has been subjected to psychological evaluation in the last 18 years. The information in the historical evaluations is of little relevance in determining whether parole is in the best interests of society and public safety. Similarly, Board Member Brown indicated in his affidavit that Haeger completed additional SOT in 2009 while receiving in-reach services. However, we have located no record description of any services provided to Haeger during the in-reach program. The record is also devoid of information regarding Haeger s performance in those programs. Neither this Court nor the circuit court can properly review a Parole Board s decision supported by an obviously incomplete record. Regardless of fault for the omissions, Haeger s file lacks case summary reports produced following parole board interviews, any reports produced following in-reach services, or any TAP that may have been developed with Haeger. These gaps in the record support a single conclusion: that the Board granted Haeger parole in violation of controlling administrative rules and agency regulations. 14 The MPRI Statewide Implementation Plan: A Three-Step Approach, October 2005, available on the MDOC website <http://www.michigan.gov/corrections> (accessed September 8, 2011). 15 The MPRI Model: Statements and Recommendations at 5. 16 MDOC Policy Directive 03.02.101, p 2, ¶ I provides, in relation to a prisoner receiving MPRI in-reach services, that a TAP shall be developed or updated for the prisoner, as appropriate to identify programming and other tasks and activities that the prisoner is expected to complete in order to reduce his/her identified risks, including any specifically identified by the Parole and Commutation Board. -16- Absent a complete record and an updated psychological evaluation, we cannot discern whether the Parole Board committed a clear abuse of discretion in granting parole. Accordingly, the circuit court erred in reversing the Parole Board s decision on that ground. We note that the circuit court did attempt to fill the holes in the record, but the Parole Board was less than forthcoming and expedient in providing the necessary information for the court s review. In any event, we will briefly address certain errors in the circuit court s analysis of the Parole Board s actions to prevent any future error. First, the circuit court correctly noted the internal inconsistency in the COMPAS report. The Parole Board exacerbated the error by failing to remedy or explain the inconsistency until its motion for reconsideration of the court s order of reversal. We do not find the presence of conflicting information in the report to be dispositive. In other contexts, this Court has repeatedly determined that there is no abuse of discretion when a court or fact finder faced with conflicting information makes a reasonable and principled decision regarding which side to believe. See, e.g., People v Wybrecht, 222 Mich App 160, 173; 564 NW2d 903 (1997) ( [A] sentence is not invalid because probation agents and a defendant s psychologists use undisputed facts to draw conflicting conclusions about the defendant s character. ). The current Parole Board panel read the conflicting statements regarding Haeger s psychological and behavioral health. A member of the current panel also interviewed Haeger and reached his own determination regarding Haeger s mentality. The Board chose to believe the COMPAS statement that Haeger did not have criminal ideations, that statement is supported by record evidence, and the Board did not abuse its discretion in granting parole based on that evidence. Similarly, we reject the circuit court s disregard for the current panel s decision simply because it conflicted with the decisions of previous parole panels. Each and every parole panel faces some conflicting information in making its decision. Each panel member has the discretion to consider the evidence and make a reasonable choice regarding which version of the evidence to believe. It is not an abuse of discretion where two fact finders reach different conclusions based on complex and potentially conflicting information within a prisoner s record. We further reject the circuit court s dismissal of the Parole Board s analysis of various assessment scales. The COMPAS and VASOR assessments and the parole guidelines all include static and dynamic factors. Haeger cannot change the circumstances of his past offense and those variables will consistently reduce his overall scores on risk assessments. Haeger may improve his parole outlook, however, by engaging in services toward rehabilitation. Giving the various static and dynamic factors similar weight allows the Board to effectuate both the punitive and rehabilitative features of the corrections system. As noted by our Supreme Court in People v Schultz, 435 Mich 517, 531-532; 460 NW2d 505 (1990) (internal quotations omitted): Four factors may be taken into consideration to determine the appropriateness of a sentence: rehabilitation, deterrence, the protection of society, and punishment. . . . *** . . . [T]he ultimate goal of sentencing in this state is not to exact vengeance, but to protect society through just and certain punishment reasonably calculated to rehabilitate and thereby convert bad citizens into good citizens. -17- Accordingly, we disagree with the circuit court s assessment that the Parole Board cherry picked the most favorable aspects of Haeger s COMPAS and VASOR assessments. Rather, the Board recognized that Haeger s overall VASOR rating was heavily affected by the circumstances of the sentencing offense. Based on that observation, the Board gave special consideration to Haeger s low risk of recidivism found on both assessments. The Board s seemingly weighted consideration of Haeger s VASOR score is supported by commentary regarding this scale. While incarceration is generally recommended for a prisoner rating high risk on the VASOR scale,17 official sources acknowledge that the violence risk scale [as it was previously designated] was not designed to nor does it predict sexual or other types of reoffense risk particularly well. 18 The scale has been renamed Violence Scale to reflect that its primary purpose is to quantify the severity of an individual s violence history rather than the likelihood of violent recidivism. 19 Ultimately, while the Parole Board properly considered the evidence that was placed before it, it did not have a complete record on which to base the parole decision. The Board violated its regulatory duty to defer its parole decision until Haeger submitted to a psychological or psychiatric evaluation. And the Parole Board or MDOC, or both, failed to maintain careful records documenting Haeger s participation in services and completion of steps necessary for parole. Accordingly, we agree with the circuit court s determination to reverse the Parole Board s decision. This conclusion is not fatal to Haeger s chances of parole. Rather, the Parole Board must now ensure that it considers all necessary information in rendering its parole decision and adequately and accurately documents these steps in the record. After a thorough review as required by statute, regulation and MDOC policy directive, the Parole Board may use its discretion to either grant or deny parole to Haeger. Affirmed. /s/ Elizabeth L. Gleicher /s/ Jane E. Markey /s/ Henry William Saad 17 Vermont Assessment of Sex Offender Risk Manual at 1. 18 Id. at 6. 19 Id. at 7. -18-

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