In re Parole of Richard Allen McBrayer (Opinion - Leave Granted)
Annotate this CaseThe Macomb County Prosecutor sought to appeal the Parole Board’s grant of parole to Richard McBrayer, a prisoner under the jurisdiction of the Department of Corrections. The Parole Board intervened. In 1994, McBrayer pleaded guilty of two counts of first-degree criminal sexual conduct involving his stepdaughter when she was 12 to 14 years old. He was sentenced to concurrent terms of 20 to 40 years in prison; the minimum sentences represented the top of the then-controlling judicial sentencing guidelines range. McBrayer became eligible for parole in January 2010 after accumulating disciplinary credits through the years. In 2011, 2015, and 2018, the Parole Board granted McBrayer parole, but the board’s grant of parole was overturned each time after the victim, or the prosecutor, appealed. In 2020, the board again considered McBrayer for, and granted him, parole. McBrayer’s parole-guidelines score of +11, indicated a high probability of parole, and the board found facts to support the grant. The prosecutor again appealed the board’s decision. After reviewing the evidence in the record, the court reversed the board’s grant of parole, reasoning that there had been no improvement in McBrayer’s circumstances from the time he was last considered for parole. In a split unpublished per curiam opinion, the Court of Appeals affirmed the circuit court’s ruling, reasoning that there were substantial and compelling reasons to depart from the parole guidelines—namely, the heinous nature of the crimes, the impact of the crimes on the victim, skepticism about McBrayer’s rehabilitation, and concerns with the efficacy of his parole plans. The Michigan Supreme Court determined the Court of Appeals majority applied the wrong analysis and ignored the discretion that the Legislature has assigned to the Parole Board. Applying the proper analysis, the Supreme Court concluded the Parole Board did not abuse its discretion. The Court therefore reversed the judgment of the Court of Appeals and reinstated the Parole Board’s grant of parole.
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