PEOPLE OF MI V TERRELL MICHAEL WASHINGTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 29, 2002
Plaintiff-Appellee,
v
No. 225573
Jackson Circuit Court
LC No. 99-093810-FH
TERRELL MICHAEL WASHINGTON,
Defendant-Appellant.
Before: Sawyer, P.J., and O’Connell and Zahra, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of two counts of assault on a
corrections employee, MCL 750.197c, and sentenced to serve two concurrent prison terms of
two to four years, consecutive to the prison term he was serving at the time of the assaults. He
appeals as of right, challenging the lawfulness of his incarceration at the time of the assaults due
to an alleged miscalculation of his discharge date by the Department of Corrections.1 We affirm.
This matter is being decided without oral argument pursuant to MCR 7.214(E).
Defendant hinges his assertion of unlawful incarceration at the time of the assaults on the
following forfeitures of good time credits: (1) 540 days of earned good time credits were
unlawfully forfeited by the warden for a parole violation where such a forfeiture can only be
authorized by the parole board, and (2) 143 total days of good time credits were automatically
forfeited because of prison misconduct tickets in violation of Ex Post Facto clauses. We note
that defendant’s challenge to the lawfulness of his incarceration in the proceedings below did not
involve either of the two specific challenges he now asserts, but rather involved various other
challenges to the DOC’s computation of his outdate. However, because no special steps are
required to preserve for appeal the issue whether sufficient evidence was presented to sustain his
conviction, our review remains de novo. People v Hawkins, 245 Mich App 439; 628 NW2d 105
(2001). When the sufficiency of the evidence at a bench trial is challenged on appeal, this Court
must view the evidence in the light most favorable to the prosecution and determine whether a
rational trier of fact could have found that the essential elements of the crime were proven
1
We note that an essential element of the offense of assault on a corrections employee, MCL
750.197c, requires that the prosecution prove the defendant was “lawfully imprisoned” at the
time of the assault. People v Clay, 239 Mich App 365; 608 NW2d 76 (2000), rev’d 463 Mich
971; 623 NW2d 597 (2001).
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beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000);
Hawkins, supra.
First, defendant asserts that 540 days of earned good time credits were forfeited by the
warden in violation of MCL 800.33(13), which provides that “[t]he parole board shall be
exclusively empowered to cause the forfeiture of good time or disciplinary credits earned by a
prisoner at the time of a parole violation.” The record belies this claim.
Defendant had absconded from parole on September 27, 1993, and was not apprehended
until May 13, 1994. Defendant does not contest the 228 days of dead time during which the
running of his sentence was suspended. However, he does challenge a “Time Review &
Disposition” form, dated July 1, 1994, and signed by Warden Gary M. Gabry, which stated:
“Because of your above listed misconduct [parole violation], I am ordering 540 days of earned
credits to be forfeited.” Although this form makes it appear as though the warden authorized the
forfeiture, defendant himself admitted at trial that it was ordered by the parole board chairman.2
Further, the prosecution notes in its appeal brief that Gabry was the parole board chairman in
1994 when the forfeiture was ordered. Thus, this issue lacks merit.
Second, defendant asserts that the automatic forfeiture of 143 days of good time credits
because of misconduct tickets, pursuant to a 1987 amendment to MCL 800.33, constituted an ex
post facto violation.3 Pursuant to MCL 800.33, a prisoner may earn disciplinary credits for each
month served but may also forfeit such credits upon being found guilty of major misconduct.
After amendment of the statute, effective April 1, 1987, § 33(6) provided:
(6) On and after April 1, 1987, a prisoner shall not earn good time under
this section during any month in which the prisoner is found guilty of having
committed a major misconduct. The amount of good time not earned as a result
of being found guilty of a major misconduct shall be limited to the amount of
good time that would have been earned during the month in which the major
misconduct occurred. Any good time not earned as a result of the prisoner being
found guilty of a major misconduct shall never be earned or restored. [MCL
800.33(6).]
Prior to its amendment, forfeiture of good time credits during a month in which a misconduct
was incurred was discretionary, as opposed to mandatory. Because defendant was convicted of a
Proposal B offense in 1981, he asserts that retroactive application of the 1987 amendment to his
sentence constitutes an ex post facto violation. Defendant relies on Lowe v Dep’t of Corrections
(On Rehearing), 206 Mich App 128, 137; 521 NW2d 336 (1994), where this Court held that a
1982 statutory amendment that eliminated good time credits for Proposal B offenders and instead
awarded less favorable disciplinary credits constituted an ex post facto violation.
2
See Trial Transcript, 1/12/2000, p 14.
3
Although it is unnecessary to reach the merits of this issue, we analyze it in light of its
constitutional implications.
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Defendant’s reliance on Lowe, supra, is misplaced. Unlike in Lowe, the statutory
amendment challenged by defendant does not have the effect of increasing his punishment for a
crime after its commission. Garner v Jones, 529 US 244; 120 S Ct 1362, 1367; 146 L Ed 2d 236
(2000); Payne v Dep’t of Corrections, 242 Mich App 638, 641; 619 NW2d 719 (2000). Instead,
the amendment of § 33(6) relates to misconduct committed after the effective date of the
amendment, not to the offense for which he was imprisoned originally. Had defendant not
engaged in repeated misconduct while in prison, he would have suffered no ill effects from the
amendment of § 33(6). Thus, because the statute provided fair notice of its consequences, and
defendant’s punishment for his original offense was not increased, there has been no ex post
facto violation. Accord, Weaver v Graham, 450 US 24, 28-29, 31; 101 S Ct 960; 67 L Ed 2d 17
(1981); Payne, supra.
Accordingly, viewing the evidence in the light most favorable to the prosecution, we
conclude that a rational trier of fact could have found that the essential elements of the crime
were proven beyond a reasonable doubt.
Affirmed.
/s/ David H. Sawyer
/s/ Peter D. O’Connell
/s/ Brian K. Zahra
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