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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6346 February 25, 1986 PAROLE AND PROBATIONS: Eligibility for parole of a prisoner convicted of crime enumerated in 1978 PA Initiated Law (Proposal B) and sentenced to indeterminate sentence A prisoner sentenced to an indeterminate sentence for a crime listed in 1978 PA Initiated Law (Proposal B) may not be considered for parole until the prisoner has served the minimum term imposed by the sentencing judge. Robert Brown Director Department of Corrections Stevens T. Mason Building Lansing, MI 48913 You have requested my opinion on the following question: '[W]hether prisoners who are sentenced to an indeterminate sentence for a crime which is listed in Proposal B can be paroled under the Lifer Law [MCL 791.234, MSA 28.2304] after serving ten calendar years.' MCL 791.234, MSA 28.2304, in pertinent part provides: '(1) A prisoner sentenced to an indeterminate sentence . . . shall be subject to the jurisdiction of the parole board when the prisoner has served a period of time equal to the minimum sentence imposed by the court for the crime of which he or she was convicted, less good time allowances, if applicable. . . . '(4) A prisoner under sentence for life or for a term of years . . . who has served 10 calendar years of the sentence is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions: '(d) A parole shall not be granted under this subsection in the case of a prisoner who is otherwise prohibited by law from parole consideration.' (Emphasis added.) 1978 PA Initiated Law (Proposal B), MCL 791.233b; MSA 28.2303(3), provides in pertinent part: 'A person convicted and sentenced for the commission of any of the following crimes shall not be eligible for parole until the person has served the minimum term imposed by the court less an allowance for disciplinary credits as provided in Section 33(5) of Act No. 118 of the Public Acts of 1983, being Section 800.33 of the Michigan Compiled Laws, but shall not be eligible for special parole.' Also relevant to your question is MCL 791.233(1)(b) and (c); MSA 28.2303(1)(b) and (c), which in pertinent part, provides: '(b) A parole shall not be granted to a prisoner until the prisoner has served the minimum term imposed by the court less allowances for good time or special good time to which the prisoner may be entitled to by statute, except that prisoners shall be eligible for parole prior to the expiration of their minimum terms of imprisonment whenever the sentencing judge, or the judge's successor in office, gives written approval of the parole of the prisoner prior to the expiration of the minimum terms of imprisonment. '(c) Notwithstanding the provisions of subdivision (b), a parole shall not be granted to a prisoner sentenced for the commission of a crime described in section 33b(a) to (cc) until the prisoner has served the minimum term imposed by the court less an allowance for disciplinary credits as provided in section 33(5) of Act No. 118 of the Public Acts of 1983, being section 800.33 of the Michigan Compiled Laws. A prisoner described in this subdivision is not eligible for special parole.' In People v Johnson, 421 Mich 494; 364 NW 2d 654 (1984), the Michigan Supreme Court addressed the question of whether the provisions of MCL 791.233b; MSA 28.2303(3), precluded parole consideration pursuant to MCL 791.234(4); MSA 28.2304(4), in the case of a nonmandatory life sentence. In Johnson, the defendant plead guilty to second-degree murder, MCL 750.317; MSA 28.549, pursuant to a plea bargain, in exchange for dismissal of a charge of first-degree murder. MCL 750.316; MSA 28.548. The trial court sentenced the defendant in Johnson to life imprisonment. With regard to the impact of Proposal B, the Michigan Supreme Court on appeal concluded that the proscriptions of MCL 791.233b; MSA 28.2303(3), applied 'only to indeterminate sentences. Its express provisions are binding on the parole board, and the board may not release on parole before the expiration of the minimum term fixed by the sentencing judge, any person given an indeterminate sentence for the crimes specified after the proposal's effective date. It has no application to a fixed or life sentence.' It follows, therefore, that MCL 791.234(4); MSA 28.2304(4), does not permit parole consideration for prisoners sentenced to indeterminate sentences until service of their minimum terms. This result is also consistent with the provisions of MCL 791.233(b), (c); MSA 28.2303(3)(b), (c), which exempts indeterminate Proposal B sentences from the possibility of early parole based on written approval of the sentencing judge. Whether Proposal B applies to a particular individual, therefore, depends on the sentence imposed by the trial court. In the case of second-degree murder, for example, a trial court may impose either a life sentence or an indeterminate term of years in which the minimum term cannot exceed two thirds of the maximum possible sentence. People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). If the judge imposes a life sentence in these circumstances, the Supreme Court has concluded that Proposal B does not apply. People v Johnson, supra. If, however, the judge imposes an indeterminate sentence, Proposal B does apply and precludes parole consideration until the defendant has served his or her minimum term. This result is admittedly somewhat anomalous. Under this construction an individual sentenced to a life sentence serves substantially less time than an individual sentenced merely to a term of years where the minimum term is greater than ten years. Such a result is, however, unavoidable in light of the court's holding in Johnson. It is my opinion, therefore, that a prisoner sentenced to an indeterminate sentence for a crime which is listed in 1978 PA Initiated Law (Proposal B) may not be considered for parole under MCL 791.234(4); MSA 28.2304(4), until the prisoner has served the minimum term imposed by the sentencing judge. Frank J. Kelley Attorney General
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