MARK WHITE V DEPT OF CORRECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
MARK WHITE,
UNPUBLISHED
December 27, 2002
Plaintiff-Appellant,
No. 234274
Ingham Circuit Court
LC No. 01-093032-AW
v
DEPARTMENT OF CORRECTIONS,
MARJORIE VAN OCHTEN, LINDA
WITTMAN, a/k/a LINDA WHITTMAN,
Defendants-Appellees.
Before: Whitbeck, C.J., and Hood and Kelly, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting defendant’s1 motion for summary
disposition and dismissing plaintiff’s complaint for a writ of mandamus. We affirm.
In 1995, plaintiff was convicted by an Oakland County jury of several offenses including
unarmed robbery.2 He was subsequently sentenced as an habitual offender and orally received a
ten to fifteen year sentence for the unarmed robbery conviction. However, the judgment of
sentence provided that plaintiff was sentenced to seven to thirty years’ imprisonment for the
unarmed robbery conviction. Plaintiff moved to clarify the sentence. The trial court resentenced
defendant to ten to fifteen years’ imprisonment for the unarmed robbery conviction. At
plaintiff’s urging, the sentencing court orally stated that it would “permit” plaintiff to “receive
good time.” The written order granting the motion for clarification of sentence provided that
plaintiff “shall be entitled to receive any good time or disciplinary credits available to him
pursuant to Department of Corrections policy.” The amended judgment of sentence provided
that plaintiff “shall be entitled to good time credit.”
1
Because of the nature of the claim of relief, entitlement to good time credits, we will use the
singular “defendant.”
2
Plaintiff stole the purse of an elderly woman in a parking lot. The next business day, plaintiff
was apprehended while attempting to cash checks from the checkbook contained in the stolen
purse. Plaintiff was apprehended at the bank, fled police custody, and was taken into custody
following a police chase. See People v White, unpublished opinion per curiam of the Court of
Appeals, issued March 28, 1997 (Docket No. 185321). Although defendant was convicted of
multiple offenses, only the unarmed robbery sentence is contested in this claim of appeal.
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Plaintiff filed a writ of mandamus to compel defendant to grant good time credit on his
sentence, alleging that defendant did not comply with the sentencing court’s order. Defendant
moved for summary disposition, alleging that it was statutorily precluded from awarding good
time credit to an inmate who was serving a sentence for a crime committed after April 1, 1987.
Following oral arguments, the trial court granted defendant’s motion for summary disposition
and dismissed the complaint for writ of mandamus.
“A writ of mandamus will only be issued if the plaintiffs prove they have a ‘clear legal
right to performance of the specific duty sought to be compelled’ and that the defendant has a
‘clear legal duty to perform such act . . . .’” In re MCI Telecommunications Complaint, 460
Mich 396, 442-443; 596 NW2d 164 (1999), quoting Toan v McGinn, 271 Mich 28, 34; 260 NW
108 (1935). The decision to grant or deny a writ of mandamus is reviewed for an abuse of
discretion. In re MCI Complaint, supra at 443. The trial court’s decision granting summary
disposition is reviewed de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817
(1999). The trial court’s determination of underlying legal issues is also reviewed de novo.
Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467
NW2d 21 (1991).
Plaintiff first alleges that the applicability of good time credit to habitual offenders is a
matter that is unclear and has been misunderstood by trial courts since this Court’s decision in
People ex rel Oakland Co Prosecuting Attorney v Bureau of Pardons & Paroles, 78 Mich App
111; 259 NW2d 385 (1977), generally known as the Trudeau decision. Plaintiff claims that in
response to Trudeau and a later decision, Lamb v Bureau of Pardons & Paroles, 106 Mich App
175; 307 NW2d 754 (1981), defendant implemented a policy directive, MDOC PD 03.01.102,
that is inconsistent with the provision of the habitual offender statute governing early parole
consideration. Plaintiff asserts that this Court must resolve the alleged confusion by explaining
the manner in which defendant is to award behavior credit for inmates serving enhanced habitual
sentences. We have already explained in Lamb, supra, how behavior credit is applied in
sentences involving habitual offender sentences. We therefore conclude that this issue is not a
matter of general misunderstanding.
The term “good time” in Michigan has a specific meaning. It designates the institutional
credit formerly awarded to inmates for good behavior. MCL 800.33(2); Lowe v Dep’t of
Corrections (On Rehearing), 206 Mich App 128, 130; 521 NW2d 336 (1994). It was applicable
to all inmates until the enactment of MCL 791.233b (in response to the voter referendum known
generally as Proposal B) on December 12, 1978. Lowe, supra at 131. Under the provisions of §
233b, awards of good time were prohibited for certain designated offenses. Id. This system was
modified effective December 30, 1982, to create a new category of good behavior credits, known
as “disciplinary credits” and “special disciplinary credits,” that are less “generous” than good
time credits. Id. at 131-133. Effective April 1, 1987, good time credits were eliminated
altogether for all offenses committed after that date and only disciplinary credits continued to be
awarded. MCL 800.33(3).
Plaintiff was sentenced for a crime committed in 1994, and he was sentenced as an
habitual offender. He was therefore not eligible for good time credit, although he is eligible for
disciplinary credit. At the time of plaintiff’s sentencing, the habitual offender statute, MCL
769.12(3), provided, in relevant part:
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Offenders sentenced under this section or section 10 or 11 for offenses
other than a major controlled substance offense shall not be eligible for parole
before the expiration of the minimum term fixed by the sentencing judge at the
time of sentence without the written approval of the sentencing judge or a
successor.
This Court held in Lamb, supra at 184, that the statutory language “the minimum term
fixed by the sentencing judge at the time of sentence” refers to the calendar minimum; that is, the
actual minimum sentence imposed by the court, unreduced by good time (or, after December 30
1982, disciplinary credits). Thus, as this Court concluded in Lamb, while the MDOC is required
to calculate behavior credit, application of such accumulated credit in the case of an habitual
offender merely means that the offender may be considered for parole by the parole board at the
completion of the offender’s net minimum sentence (calendar minimum sentence minus
accumulated good time or disciplinary credit). However, MCL 769.12(3) [now MCL
769.12(4)(a)], as interpreted by Lamb, requires that parole may not actually be granted unless the
sentencing judge (or a successor) provides written approval of early parole, i.e., parole before the
calendar minimum sentence.3
Pursuant to Lamb and Trudeau, defendant has promulgated policy directive 03.01.02.
The subsection implicated in this appeal, PD 03.01.102(C), provides:
Approval by the sentencing court allowing the Parole Board to parole
prior to the calendar minimum must be in the form of written correspondence
from the court to the Board clearly indicating that jurisdiction is given to the
board to approve parole prior to the calendar minimum. The Parole Board shall
contact the court to clarify the issue. Language such as “I grant good time” or “I
do not oppose good time being given” will not be interpreted as approval by the
sentencing court since good time or disciplinary credits are a statutory right and
not subject to judicial approval or disapproval.
Contrary to plaintiff’s position, this policy directive properly implements this Court’s
decisions in Trudeau and Lamb while also preserving the statutory prohibition against the parole
board granting early parole to an habitual offender without first obtaining the written approval of
the sentencing court. The policy directive covers a matter for which defendant is responsible,
and it merely interprets the requirements of the statute to provide guidance. This is a proper
exercise of defendant’s authority and ordinarily such an interpretive rule will be followed absent
a showing that it is contrary to the dictates of the statute. Clonlara, Inc v State Bd of Ed, 442
Mich 230, 239-241; 501 NW2d 88 (1993). Plaintiff has failed to make such a showing.
Plaintiff nevertheless contends that the trial court’s verbal and written statements
approving the award of good time credit constituted binding directives that defendant did not
have the authority to ignore and that, by refusing to comply with the sentencing court’s “orders”
3
The current statutory provision, MCL 769.12(4)(a), makes this even clearer because it provides
that an habitual offender “is not eligible for parole until expiration of . . . the minimum term
fixed by the sentencing judge at the time of sentence unless the sentencing judge or a successor
gives written approval for parole at an earlier date.” [Emphasis supplied.]
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defendant is violating the separation of powers doctrine and the plain language of the statute.
Because the sentencing court does not have the authority to order defendant to award any form of
behavior credit, and particularly not good time credit, plaintiff’s argument is without merit.
Plaintiff is incarcerated as an habitual offender for crimes committed after April 1, 1987.
He is therefore ineligible for good time credit. MCL 800.33(3); Lowe, supra at 133. The
decision whether to award any form of behavior credit during the course of an inmate’s
incarceration is expressly reserved by statute to the discretion of defendant and its agents. MCL
800.33. The Legislature has not given the sentencing court any authority to become involved in
that discretionary decision. Therefore, regardless of what the sentencing court stated orally at
sentencing, or in writing in its order granting clarification of sentence or its amended judgment
of sentence, the sentencing court was without authority to order defendant to provide good time
credit to plaintiff.4
Plaintiff further claims that defendant is violating the separation of powers doctrine by
refusing to comply with the sentencing court’s directive that it award good time credit to
plaintiff. The separation of powers doctrine, Const 1963, art 3, § 2,5 “intends to preserve the
independence of the three branches of government.” Hopkins v Parole Bd, 237 Mich App 629,
636; 604 NW2d 686 (1999). This Court held, in Hopkins, that the Legislature has granted
defendant sole jurisdiction over questions of parole. Id. at 637. Likewise, pursuant to MCL
800.33, the Legislature has granted defendant sole jurisdiction over the determination and award
of good time. The Legislature has further declared that good time is unavailable to those inmates
– like plaintiff – who are incarcerated for crimes committed after April 1, 1987. MCL 800.33(3).
Because the sentencing court had no authority to order an award of good time (both
because such credit is no longer statutorily available and because the award of any form of
behavior credit is a matter of discretion for defendant, not the sentencing court), if there is a
violation of the separation of powers doctrine, it has been committed by the sentencing court in
trying to usurp the discretionary authority that has been statutorily placed by the Legislature in
the executive branch of government. Accordingly, this Court rejects plaintiff’s separation of
powers claim.
4
To the extent that the amended judgment of sentence purported to “order” defendant to provide
good time credit to plaintiff, that provision in the judgment was invalid. MCL 769.24 provides
that a judgment of sentence containing an excess fine or punishment is invalid only to the extent
of the excess. See also People v Thomas, 447 Mich 390, 393; 523 NW2d 215 (1994). A
provision in a judgment of sentence awarding good time to an inmate who is not statutorily
eligible for good time is likewise invalid to the extent that it orders an award of behavior credit
that the sentencing court is not empowered to award and that is, in any event, not statutorily
available. Accordingly, defendant properly refused to award good time credit to plaintiff.
5
Const 1963, art 3, § 2 provides:
The powers of government are divided into three branches: legislative,
executive and judicial. No person exercising powers of one branch shall exercise
powers properly belonging to another branch except as expressly provided in this
constitution.
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Plaintiff’s claim that he has a vested right in the award of good time is likewise without
merit. He cannot have a vested right in something the Legislature has provided he may not
receive. In Bejger v Zawadski, 252 Mich 14, 19; 232 NW 746 (1930), our Supreme Court
quoted from Sutherland, Statutory Construction (2d ed), § 282 as follows: “[t]he general rule is
that when an act of the legislature is repealed without a savings clause, it is considered, except as
to transactions past and closed, as though it had never existed.” When MCL 800.33 was
amended to eliminate the availability of good time for all inmates whose crimes were committed
after April 1, 1987, the good time provision was wiped out – “as though it had never existed” –
for all future inmates.6 The sentencing court could not create a vested right in a statutory
provision that, by its terms, did not apply to plaintiff.
Finally, plaintiff contends that the prosecutor’s failure to object to, or challenge on
appeal, the sentencing court’s amended judgment of sentence precluded defendant, pursuant to
principles of collateral estoppel and res judicata, from contesting the good time provision in the
judgment. We disagree. “Collateral estoppel precludes relitigation of an issue in a subsequent,
different cause of action between the same parties where the prior proceeding culminated in a
valid, final judgment and the issue was (1) actually litigated, and (2) necessarily determined.”
People v Gates, 434 Mich 146, 154; 452 NW2d 627 (1990). The validity of the good time credit
provision in the judgment of sentence was never previously litigated and defendant was not a
party to any previous litigation involving plaintiff and this claim. Accordingly, the doctrine of
collateral estoppel is inapplicable to this case.
There are three prerequisites to the application of the doctrine of res judicata: a prior
decision on the merits; the issues were resolved in the first case; and both actions were between
the same parties or their privies. Baraga Co v State Tax Commission, 466 Mich 264, 269; 645
NW2d 13 (2002). The criminal prosecution and appeal were litigated by the Oakland County
Prosecutor; defendant was not a party to those actions. The state is not in privity with a
subordinate political division. Baraga Co, supra at 271. Additionally, the issue of the validity
of the good time provision in the judgment of sentence was never litigated in the prior action.
Plaintiff has therefore failed to carry his burden, Baraga Co, supra at 269, of demonstrating the
applicability of either collateral estoppel or res judicata.
Plaintiff’s remaining claims were not preserved in the trial court, and manifest injustice
will not result from our decision not to review them. Herald Co v Kalamazoo, 229 Mich App
376, 390; 581 NW2d 295 (1998).7
We conclude that defendant was statutorily precluded from awarding good time credit to
plaintiff and that, in any event, the sentencing court was without authority to order defendant to
perform that discretionary act. Therefore, defendant had no clear legal duty to award plaintiff
good time credit, and plaintiff did not have a clear legal right to the performance of such an act
6
Similarly, in People v Jackson, 465 Mich 390, 403; 633 NW2d 825 (2001), where the
defendant’s conviction had become final before the promulgation of MCR 6.500 et seq., the
defendant had no vested right in the former procedure for obtaining post-conviction relief.
7
Plaintiff’s contention that defendant conceded that the sentence was invalid is not borne out by
the record.
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by defendant. Accordingly, the trial court did not commit error requiring reversal in granting
defendant’s motion for summary disposition and dismissing plaintiff’s complaint for writ of
mandamus. Maiden, supra; In re MCI Complaint, supra.
Affirmed.
/s/ William C. Whitbeck
/s/ Harold Hood
/s/ Kirsten Frank Kelly
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