Opinion
No. 133736.
March 21, 2008.
Court of Appeals No. 275609.
Leave to Appeal Denied March 21, 2008.
I concur in the order and write solely to respond to Justice KELLY'S dissent. This defendant has appealed to this Court and the Court of Appeals a number of times over the years since his conviction. The current application for leave to appeal is from defendant's fourth motion for relief from judgment. Considering the defendant's relative youth when he committed and was convicted of assault with intent to commit armed robbery, several justices have wondered why defendant has been incarcerated for so long. This is a humane and understandable impulse but one that now trenches upon the discretionary authority of the Department of Corrections, which alone has the authority to determine when convicted felons will be paroled. This Court recently requested that the prosecutor provide an explanation "as to what has led the Department of Corrections to exercise its discretion to keep the defendant incarcerated until now." People v Johnson, 740 NW2d 310. As it turns out, this defendant has a lengthy and substantial record of prison violations, including violent assaults. So that the public will be able to assess the arguments Justice KELLY makes on his behalf, I attach hereto the summary of defendant's prison record provided by the prosecutor. [Attachment at the end of the order.]
Justice KELLY is correct that "[i]n this country, we sentence defendants for the acts for which they have been convicted." Post at 1121 n 9. As noted, this defendant was convicted of assault with intent to commit armed robbery. In 1980, just like today, that crime was "punishable by imprisonment in the state prison for life, or any term of years." MCL 750.89; People v Johnson, 130 Mich App 26, 29-30 (1983). On direct appeal, the Court of Appeals upheld defendant's conviction and sentence, and after remand, this Court denied defendant's application for leave to appeal. In this successive motion for relief from judgment, defendant has not raised "a retroactive change in law that occurred after the first motion for relief from judgment or a claim of new evidence that was not discovered before the first such motion" that would justify upsetting his conviction or sentence. MCR 6.502(G)(2).
In August 1980, defendant and an accomplice used an air rifle to rob an ice cream vendor of a small amount of cash and several ice cream bars. Both men were 19 years old at the time of the crime. Defendant held the air rifle while his codefendant took the money. No shots were fired. Both men pleaded guilty of assault with intent to rob while armed. The codefendant received a sentence of six months in the county jail with work release. Defendant was sentenced to a "parolable" life sentence. He is still in prison serving that sentence 28 years later.
Since his conviction, defendant has repeatedly applied for relief in this Court. Numerous members of this Court have expressed concern over the sentence imposed. In 1985, Justice RYAN, dissenting from an order denying leave to appeal, stated that he would direct the appointment of counsel to enable this Court to consider whether defendant's sentence was "so shocking to the conscience of the Court" that relief should be granted. On defendant's motion for reconsideration, Justices LEVIN and ARCHER wrote that they would grant the motion. Twenty years later, Justice CAVANAGH echoed similar concerns in a dissenting statement of his own. He stated that he would grant leave to appeal to explore what relief this Court could afford defendant. Both Justice MARKMAN and I have indicated that we would grant leave to appeal to further consider defendant's case.
People v Johnson, 422 Mich 897 (1985).
Id.
People v Johnson, 474 Mich 924 (2005).
Id.
Id.
Today, defendant again applies for leave to appeal in this Court. After directing the prosecutor to respond, this Court denies relief. I strongly object. Appellate counsel should be appointed for defendant and oral argument should be heard on the application, with the parties directed to address what, if any, relief this Court could afford defendant.
Argument on the application is particularly appropriate because numerous issues exist that may entitle defendant to relief. First, although he and his codefendant engaged in the same behavior and pleaded guilty of the same crime, defendant remains in prison whereas his codefendant spent six months in jail with work release. Because two such drastically different sentences were imposed for the same behavior, serious concerns arise about the validity of defendant's sentence. It seems a miscarriage of justice to sentence one man to life in prison and another to six months in jail for the same behavior. If our system of justice is to retain its valued place in society, people must be treated equally. That appears not to have happened here. Another possible theory for relief is that defendant's trial counsel may have been ineffective in failing to obtain a proportionate sentence for his client.
Finally, defendant's sentence may be unconstitutional in light of the recent decision in Foster-Bey v Rubitschun. There, Judge Battani held that changes to Michigan's parole law and polices in 1992 and 1999 violate the Ex Post Facto Clause of the United States Constitution. As I have noted previously, I believe that serious concerns exist regarding the constitutionality of this state's parole system for those sentenced to parolable life terms before 1992. This case presents an excellent opportunity for this Court to consider this jurisprudentially significant issue.
Foster-Bey v Rubitschun, unpublished opinion of the District Court for the Eastern District of Michigan, issued October 23, 2007 (Docket No. 05-71318).
E.g., People v Scott, 480 Mich 1019 (2008).
In sum, the Court should appoint counsel for defendant and hear argument on his application so it can decide what, if any, relief is available to defendant.
Justice YOUNG responds to my statement by pointing to defendant's prison record. In this country, we sentence defendants for the acts for which they have been convicted. Therefore, it is inappropriate to consider their later behavior in prison when reviewing the appropriateness of the sentence. The relevant question before us is whether the sentence was valid when it was handed down. Accordingly, anything this defendant has done since sentencing is irrelevant in deciding whether his sentence, life in prison for stealing a small sum of money and some ice cream bars, is proper.
Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report:
Date: MDOC Document Name: Exhibit page 5-12-03 Memorandum: "Johnson was found guilty of a p 7 substance abuse misconduct, 5-12-03." 3-11-07 Administrative Hearing Report: "He had 2 p 14 yellow photo tickets that were either stolen from the prisoner store or they were smuggled in from a visit." 2-6-07 Prisoner Program and Work Assignment p 15 Evaluation: "Termination required based on Guilty finding of ticket." 1-27-07 p 17 Insolence; Disobeying a Direct Order, Found Guilty 11-2-06 Prisoner Program and Work Assignment p 19 Evaluation: "Inmate Johnson, had a few issues always missing work or leaving early. (out of place ticket 12-30)." 7-31-06 Security Reclassification Notice: "Misconduct p 26 charges; Fighting, 5-16-06; Out of Place, 2-10-06." 7-18-06 Notice of Intent to Classify to Segregation; "Pris p 27 Johnson approached me and stated that he needed to lockup for protection He said that he owed money from gambling debts he bad incurred at a gambling table run by an inmate." 5-16-26 p 30 Fighting Found Guilty 1-25-06 p 37 Out of Place Found Guilty 8-6-05 p 48 Creating a Disturbance Found Guilty 11-8-04 Security Reclassification Notice: "Subject p 63 placed in Temp Seg due to a NOI for possibly being involved in attempted assault on another prisoner which may have involved a weapon 4-12-04 Out of p 68 Place Found Guilty 1-15-04 Notice of Intent to Conduct an Administrative p 71 Hearing: Contraband Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: 6-6-03 Out of p 78 Place Found Guilty 5-17-03 Out of p 80 Place Found Guilty 4-20-03 p 82 Substance Abuse Found Guilty 9-5-01 Special Problem Offender Notice: Assaulting p 112 an Employee or Escape Jail: "Prisoner Phillips stated that he was assaulted by prisoner Johnson and Johnson was found guilty of the assault." 8-29-01 p 113 Assaulting Resulting in Serious Physical Injury: Found Guilty 10-27-00 p 124 Threatening Behavior Found Guilty 4-1-00 Prisoner Program and Work Assignment p 130 Evaluation: "Johnson has been warned several times about loitering while Working. Johnson cannot work without constant supervision" 1-18-00 p 132 Insolence Found Guilty 12-8-00 Parole Board Notice of Action- No interest p 134 12-17-99 Notice of Intent to Conduct an Administrative p 142 Hearing Contraband: "During a complete Unit Shakedown on 12/17/99, Prisoner Johnson was found to have the following contraband in his area of control: plastic spoon, bottles of med., old store card, altered adaptor." 4-2-98 p 165 Disobeying a Direct Order Found Guilty 3-12-98 Special Problem Offender Notice: "On 7-30-97, p 171 a major Misconduct ticket was written on Johnson for Assault Battery On Inmate Hamilton." 9-30-97 Visitor Restriction: "The decision to restrict p 178 your visits was based on the following major misconduct guilty findings for Substance Abuse. 8-31-95 (alcohol), 1-14-96 (cocaine), 8-23-96 (alcohol), 7-29-97 (alcohol)." Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: 10-28-97 Security Reclassification Notice: Misconduct p 181 Charge, AssIt Batt 8-11-97, Substance abuse 8-18-97. "Demonstrate inability to be managed with group privileges. Show that this prisoner is a serious threat to the physical safety of staff and/or other prisoners." 7-29-97 p 182 Substance Abuse Found Guilty 7-30-97 p 184 Assault and Battery Found Guilty 7-30-97 p 189 Disobeying a Direct Order Found Guilty 7-31-97 Theft: Possession of Stolen Property: Found p 191 Guilty 5-18-97 p 194 Creating a Disturbance Found Guilty 3-4-97 Prisoner Program and Work Assignment p 199 Evaluation: "Johnson is threat to safety of stewards in main kitchen." 2-17-97 p 200 insolence Found Guilty 10-19-97 p 204, 216 Disobeying a Direct Order: Found Guilty 11-25-97 Memorandum: "Prisoner Johnson was classified p 207 to Administrative Segregation on 10-28-97 by the Security due to an Assault Battery On inmate misconduct. 1-6-98 p 211 Insolence Found Guilty 8-23-96 Prisoner Program and Work Assignment p 220 Evaluation: "Laid in for Substance abuse (alcohol while on assignment) Porter Johnson had a problem staying on his assignment would be seen on galleries he wasn't to be on without authorization, failed to keep showers clean at all times due to his running around, passing items to other prisoner such as cigarettes. Guilty." 8-23-96 p 222 Substance Abuse Found Guilty Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: 4-14-96 Notice of Intent to Classify to Administrative p 226 Segregation 1-14-96 p 231 Substance Abuse Found Guilty 10-31-00 Notice of Action/Parole Board: "No interest in p 233 taking action" 8-31-95 p 236 Substance Abuse Found Guilty 4-17-95 Administrative Segregation Interview Report: p 242 "observed with shank in hand, attempting to pass to another prisoner." 2-27-95 Security Reclassification Notice: "Misconduct p 250 Charge, Possession of Dangerous Contraband." 2-18-95 p 252 Possession of Dangerous Contraband: Found Guilty 12-6-94 Administrative Segregation Interview Report: p 255 "hit prisoner in jaw." 11-18-94 Administrative Segregation Interview Report: p 258 "Prisoner has a lengthy consistent behavior of violent/assaultive behavior." 7-14-94 p 267 Assault and Battery Found Guilty 2-20-94 p 277 Possession of Forged Documents: Found Guilty 2-94 Prisoner Program and Work Assignment Evaluation: p 279 "Johnson needs to stay in his own area, and refrain from horse playing in the kitchen." 10-5-93 p 283 Fighting Found Guilty 9-30-93 Prisoner Program and Work Assignment Evaluation: p 287 "Worker seems to want to horseplay, instead of working at the proper time. Has been verbally told about horse playing on several occasions." 8-16-84 Administrative Segregation Interview Report: p 290 "Reason for segregation classification; Prevent/control prisoners unmanageable assaultive behavior. Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: 9-10-93 Security Classification Screen-Review: "History p 294 of serious management problems indicates the need to gradually reduce security levels." 8-18-93 Security Classification Screen-Review: "History p 295 of stabbing other prisoners." 12-7-92 Program Classification Report: "Due to a p 303 lengthy history of assaultive behavior, he is being retained at a level V security." 7-9-91 p 316 Fighting Found Guilty 4-4-91 Administrative Segregation Interview Report: p 323 Notice of Intent upheld stabbed another prisoner 3-18-91 Special Problem Offender Notice: "On 3-1-91 p 324 prisoner Johnson stabbed prisoner Hammond in the chest and back while being held by prisoner Goodman." 7-11-90 Transfer Order: "Prisoner demonstrates the p 328 inability to be managed with group privileges, is a threat to the physical safety of staff and/or other prisoners." 6-1-90 Special Problem Offender Notice: "Prisoner p 340 Neely was stabbed by prisoner Johnson. The stabbing was done in the institutions Barber Shop with a pair of scissors." 6-13-90 Security Reclassification Notice: "Misconduct p 342 charge; Assault Battery (5-30-90); Gambling (1-10-90)." 5-25-90 Theft; p 343 Possession of Stolen Property: Found Guilty 5-25-90 p 345 Assault and Battery Found Guilty: Johnson stabbed Neely with scissors in Barber Shop 12-28-89 p 358 Gambling; Possession of gambling paraphernalia: Found Guilty. 8-10-89 Transfer Order: "Since arriving at TCF he has p 367 incurred the following major misconducts: Destruction or Misuse of State Property (8-1-88); Possession of Money (8-24-89); Insolence (10-10-88); Interference with Administration of Rules (10-26-88); Theft; Possession of Stolen Property (10-26-88); Fighting (1-11-89)." Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: 5-2-89 Administrative Hearing Report: Disposition of p 374 Property "contains illegal numbers (credit numbers). Cover to be destroyed." 1-24-89 Security Reclassification Notice: "Misconduct p 377 charge; Fighting (1-11-89); Theft; Possession of Stolen Property (10-26-89); Interference with Admin. of Rules (10-26-88); Insolence (10-10-88); Possession of Money (8-24-88); Dest or Misuse of State Property (8-1-88). 1-5-89 p 378 Fighting: Found Guilty 12-22-88 Notice of Action/Parole Board: "The Parole p 380 Board has reviewed your case following your most recent interview and has no interest in taking action at this time." 10-15-88 p 383 Theft; Possession of Stolen Property: Found Guilty 10-15-88 p 383 Interference with the Administration of rules: Found Guilty 9-30-88 p 391 Insolence: Found Guilty 5-25-90 p 343 Theft; Possession of Stolen Property: Found Guilty 8-14-88 p 394 Possession of Money: Found Guilty 7-5-88 Notice of Intent to Conduct an Administrative p 397 Hearing: "Contraband in property when he came in." 7-17-88 p 399 Destruction or misuse of property with value of $10 or more: Found Guilty 12-18-87 Transfer Order: "Johnson-El has been found guilty p 415 of the Following major misconducts: Insolence (10-5-87), (10-12-87), and (11-9-87); Fighting (10-7-87). Currently Johnson has 2 assault charges pending." 11-19-87 p 416 Assault and Battery: Found Guilty Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: 6-29-84 p 418 Fighting: Found Guilty 11-19-87 p 431 Assault and Battery: Found Guilty 12-2-87 Administrative Hearing Report: "Johnson-El p 434 received a ticket for Assault and a ticket for Fighting. He has received misconducts for Insolence (2); Out of Place and Fighting (2)." 10-24-87 p 435 Insolence: Found Guilty 10-2-87 p 438 Fighting: Found Guilty 9-25-87 p 440 Insolence: Found Guilty 7-30-87 p 442 Out of Place: Found Guilty 9-14-87 p 444 Insolence: Found Guilty 7-1-86 Memorandum: "His adjustment at MIPC has been p 470 less than satisfactory. Since 4-10-85 Johnson has been found guilty of Threatening Behavior, Assault and Battery, Dangerous Contraband, Fighting, Disobeying a Direct Order, Assault and Battery, Insolence, And Threatening Behavior." 5-19-86 p 475 Threatening Behavior, Insolence: Found Guilty 5-1-86 p 477 Insolence: Found Guilty 3-4-86 p 479 Assault and Battery: Found Guilty 1-25-86 Michigan Intensive Program Center: Final p 481 Report: "Negative Behaviors: He has incurred the following major misconducts while at MIPC (9 months), A. 4-10-85 Inciting to Riot or Strike, B.7-15-85 Assault and Battery (Inmate), Possession of Contraband, C. 7-20-85 Fighting, D. 8-1-1-85 Assault and Battery (Inmate), E. 8-27-85 Disobeying a Direct Order, F. 1-18-85 Fighting." Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: 8-27-85 p 488 Disobeying a Direct Order: Found Guilty 1-18-86 p 503 Fighting: Found Guilty 1-5-86 p 505 Disobeying a Direct Order: Found Guilty 8-11-85 p 509 Assault and Battery: Found Guilty 7-20-85 p 511 Fighting: Found Guilty 7-15-85 p 513 Assault and Battery, Possession of Dangerous Contraband: Found Guilty 4-10-85 p 521 Incite to Riot or Strike, Threatening Behavior: Found Guilty 3-18-85 Transfer Recommendation Order: "His p 525 adjustment in B Unit has been poor (disobeying a direct order, insolence and assault and battery (resident)." 2-27-85 Administrative Segregation Interview Report: p 527 "Prisoners inability to be managed with group privileges is a threat to the order and security of this facility." 3-7-85 p 529 Insolence: Found Guilty 2-11-85 p 542 Disobeying a Direct Order, Insolence: Found Guilty 1-17-85 p 546 Fighting: Found Guilty 12-31-84 p 550 Insolence: Found Guilty 9-19-84 p 558 Insolence: Found Guilty 6-5-84 Presentence Investigation Report: (Prepared p 563-574 for Jackson County Circuit Court) Prison Adjustment (Misconducts): p 568 11-10-81 Assault 6 days detention 12-6-81 Insolence 3 days toplock 12-23-81 Destruction of State Property Over $10.00 4 days detention 1-7-82 Insolence 3 days toplock 1-13-82 Disobeying a Direct Order 3 days detention 1-28-82 Fighting 7 days detention 2-15-82 Disobeying a Direct Order 2 days toplock 3-3-82 Disobeying a Direct Order 1 day detention 3-2-82 Insolence 2 days detention 3-3-82 Disobeying a Direct Order 2 days detention 4-3-82 Fighting 6 days detention 4-22-82 Disobeying a Direct Order 3 days detention 7-1-82 Possession of Dangerous Contraband 7 days detention 6-26-82 Disobeying a Direct Order 2 days detention 11-3-82 Out of Place 2 days toplock 11-24-82 Possession of Dangerous Contraband 7 days detention Substance Abuse Possession of Gambling Paraphernalia 11-24-82 Destruction of State Property Over $10.00 Restitution 1-11-83 Possession of Non-Dangerous Contraband confiscated 1-16-83 Misuse or Destruction of State Property 2 days detention 1-21-83 Assault and Battery 7 days detention 8-21-82 Threatening Behavior 7 days detention 8-1-83 Possession of Non-Dangerous Contraband confiscated 1-4-84 Possession of Non-Dangerous Contraband confiscated 1-6-84 Disobeying a Direct Order 5 days detention 1-18-84 Assault and Battery 7 days detention 1-18-84 Assault and Battery Disobeying a Direct Order 7 days detention 3-12-84 Disobeying a Direct Order 8 days loss of priv. 3-14-84 Possession of Non-Dangerous Contraband confiscated 3-8-84 Sexual Misconduct 3 days detention 3-31-84 Destruction or Misuse of State Property 10 days loss of priv. 5-1-84 Fighting 5 days detention 5-9-84 Assault on Staff 7 days detention Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: Major Misconduct Hearing Report: 1-18-84 Basic Information Report (Assaulting a Prison p 564 Employee 5-30-84 Sentence Recommendation: Jackson Co 84-33577-FH p 574 "Original Charge: Assault Prison Employee (Two Counts) /Second Felony. Conviction Charge: Assault Prison Employee (48 months max.). Plea Agreement: Plead guilty to Count I. After sentencing, Count H and the Supplemental Information will be dismissed. Also, no prosecution will be forthcoming on incident No. 41-1006-84." Defendant was sentenced on 6-14-84 to 2 to 4 years 5-9-84 p 579 Assault and Battery: Found Guilty 5-1-84 p 582 Fighting: Found Guilty 3-31-84 p 585 Destruction or Misuse of: of Property with a value of $10.00 or more: Found Guilty 3-12-84 Major Misconduct Report: Assault and p 589 Battery, Disobeying a Direct Order 3-12-84 Major Misconduct Report: Possession of p 590 Dangerous Contraband: 1-18-84 p 594 Assault and Battery, Disobeying a Direct Order: Found Guilty of both counts. 1-18-84 p 599 Assault and Battery: Found Guilty 1-6-84 p 602 Disobeying Order: Found Guilty 8-21-83 p 609 Threatening Behavior: Found Guilty 11-24-82 Misconduct Hearing Report: Dangerous Contraband, Substance, Gambling Paraphernalia: Found Guilty of all three counts p 622 11-2-82 Misconduct Hearing Report: p 625 Out of Place: Found Guilty 6-26-82 Misconduct Report: Disobeying a Direct Order p 632 7-6-82 Security Reclassification: "Misconduct charge; p 633 Dangerous Contraband 4-3-82 Misconduct Hearing Report: p 634 Fighting: Found Guilty 3-3-82 Misconduct Hearing Report: p 641 Disobeying a Direct Order, Out of Place: Found Guilty 3-2-82 Misconduct Hearing Report: p 643 Insolence: Found Guilty 3-3-82 Misconduct Hearing Report: p 645 Disobeying a Direct Order: Found Guilty 2-15-82 Misconduct Hearing Report: p 647 Disobeying a Direct Order: Found Guilty 1-28-82 Misconduct Hearing Report: p 649 Fighting: Found Guilty 1-13-82 Misconduct Hearing Report: p 651 Disobeying a Direct Order: Found Guilty 1-7-82 Misconduct Hearing Report: p 654 Insolence: Found Guilty 12-23-81 Misconduct Hearing Report: p 656 Destruction of State Property: Found Guilty 12-6-81 Misconduct Hearing Report: p 658 Insolence: Found Guilty 11-10-81 Misconduct Hearing Report: p 665 Assault: Found Guilty