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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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A defendant who was accidentally released before serving all of her time may not receive consecutive sentences as though still incarcerated, said the Michigan Court of Appeals. In <a href="http://publicdocs.courts.mi.gov/opinions/final/coa/20170425_c330898_38_330898.opn.pdf">People v. Parker, No. </a><a href="http://publicdocs.courts.mi.gov/opinions/final/coa/20170425_c330898_38_330898.opn.pdf" target="_blank" rel="noreferrer noopener">3</a><a href="http://publicdocs.courts.mi.gov/opinions/final/coa/20170425_c330898_38_330898.opn.pdf">30898</a>, the Department of Corrections “erroneously released defendant back into the community before she was finished serving either of her sentences.” As a result, when the defendant committed another crime in 2013, her record showed “in prison.” Pursuant to MCL 768.7a, the trial court ordered that the new sentence run consecutively to the sentences that she was already supposed to be serving.

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The defendant was incarcerated in 2010 for “possession of a stolen financial transaction device.” After she was erroneously released in 2011, she again stole credit cards, this time from a victim who was participating in a yoga class. She was then charged with “identity theft, MCL 445.65, and conspiracy to steal and retain a financial transaction device without consent, MCL 750.157n(1).”

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MCL 768.7a requires that a person “who is incarcerated in a penal or reformatory institution” serve consecutive sentences for committing a crime “during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution.” The Court of Appeals noted that such a mandate adds teeth to punishments imposed for crimes committed while already incarcerated. If the sentences for such crimes were imposed concurrently on inmates, the sentences would not serve to deter inmates from committing additional crimes while in prison.

In this case, the defendant clearly was not literally incarcerated in 2011 when she stole the credit cards at the yoga studio. But, importantly, the court said, “incarcerated in a penal or reformatory institution” has been interpreted broadly by Michigan courts. In People v. Sanders, the Court of Appeals held that consecutive sentences should be imposed when the defendant is “under the control of any person authorized by the Department of Corrections to have a prison inmate under care, custody, or supervision either in an institution or outside an institution.” For example, the defendant is still incarcerated when “participating in community corrections programs, assigned to halfway houses, or on extended furloughs.” Accordingly, in this case, the prosecution argued that the defendant was still under the control of the Department of Corrections. If the error had been discovered, the defendant could have been made to serve the rest of her sentence.

The Court of Appeals disagreed. The defendant’s erroneous release, the court said, meant that she was not under the control of the Department of Corrections at all. The Michigan Supreme Court made a similar finding in People v. Veilleux, where the defendant was arrested for assault while out of prison on erroneous release. Simply being “liable to serve” additional time does not keep the defendant under the control of the Department of Corrections, said the Supreme Court.

The court also rejected the prosecution’s argument that MCL 768.6 and 768.7, when read together, allow for the imposition of consecutive sentences. Those statutes mandate that defendants who are “temporarily outside the limits of the [penal] institutions” may be sentenced to consecutive terms for additional crimes. Yet, in this case, the court said, there was nothing “temporary” about the defendant’s release. There was no indication that the defendant was released for a limited time, or that her release would come to an end. Indeed, but for the additional crime, the error would never have been found.

Accordingly, the court concluded “that the trial court erred by ordering that defendant’s current sentences run consecutively to her previous sentences,” and remanded the case to the lower court to correct the sentence.

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Madelaine C. Lane

Labor and Employment

COA: Defendant released early by clerical error is no longer under control of Dept. of Corrections, may not receive consecutive sentences

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COA: Defendant released early by clerical error is no longer under control of Dept. of Corrections, may not receive consecutive sentences

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