            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                            COURT OF APPEALS



In re Parole of MICHAEL THOMAS PLUNKETT.


MONROE COUNTY PROSECUTOR,                                          UNPUBLISHED
                                                                   January 30, 2020
              Appellee,

v                                                                  No. 346216
                                                                   Monroe Circuit Court
MICHAEL THOMAS PLUNKETT,                                           LC No. 18-140782-AP

              Appellant,

and

PAROLE BOARD,

              Intervenor.



Before: BECKERING, P.J., and CAVANAGH and STEPHENS, JJ.

PER CURIAM.

        Appellant, Michael Thomas Plunkett (Plunkett), appeals by leave granted1 the circuit
court order reversing a decision by the Michigan Parole Board (the Board) granting Plunkett
parole. For the reasons set forth in this opinion, we reverse and remand.



1
  Plunkett’s application for leave to appeal was originally denied by this Court, In re Parole of
Plunkett, unpublished order of the Court of Appeals, entered December 21, 2018 (Docket No.
346216), but he applied for leave to appeal to the Michigan Supreme Court, which remanded to
this Court “for consideration as on leave granted,” In re Parole of Plunkett, 928 NW2d 209
(Mich, 2018). The Supreme Court’s remand was based on a similar issue presented in In re
Parole of Layman, unpublished per curiam opinion of the Court of Appeals, issued September



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                                       I. BACKGROUND

        In 1994, Plunkett was convicted of first-degree criminal sexual conduct (CSC-I), MCL
750.520b (sexual penetration committed by an individual 17 or older against an individual less
than 13), and aggravated assault, MCL 750.81a. Plunkett sexually abused his biological five-
year-old daughter (the victim) on multiple occasions. In October 1993, Plunkett sexually
penetrated the victim and choked her. After the sexual assault, Plunkett placed the victim in the
bath, bathed her, and then held her underwater for several seconds. Plunkett was sentenced to 25
to 60 years’ imprisonment for his CSC-I conviction and one-year imprisonment for his
aggravated assault conviction.

       Plunkett also had three juvenile convictions. In 1981, Plunkett was convicted of public
indecency, MCL 750.335a, and forgery, MCL 750.248. In 1983, Plunkett was convicted of
breaking and entering, MCL 750.115. It also appears that Plunkett had two prior misdemeanor
convictions in Florida, one for prowling, and one for indecent exposure in 1985.

        Plunkett became eligible for parole in 2014, but was denied parole. In 2015, the Board
granted Plunkett parole, but, after the circuit reversed the Board’s decision, the Board determined
that parole was unwarranted. Plunkett was denied parole again in 2016. After the Board granted
Plunkett parole in 2018, the Monroe County Prosecutor (the prosecutor) appealed the Board’s
decision, and the circuit court reversed, holding that the Board abused its discretion when it
granted Plunkett parole. Plunkett’s application for leave to appeal the circuit court’s decision to
this Court, was denied. In re Parole of Plunkett, unpublished order of the Court of Appeals,
entered December 21, 2018 (Docket No. 346216). Plunkett then applied for leave to appeal to
the Michigan Supreme Court, which remanded the matter to this Court “for consideration as on
leave granted.” In re Parole of Plunkett, 928 NW2d 209 (Mich, 2019).

                                II. PAROLE BOARD DECISION

                                 A. STANDARD OF REVIEW

        “ ‘Judicial review of the Board’s decision to grant parole is limited to an abuse-of-
discretion standard.’ ” In re Parole of Spears, 325 Mich App 54, 59; 922 NW2d 688 (2018),
quoting In re Parole of Elias, 294 Mich App 507, 538; 811 NW2d 541 (2011). Pursuant to MCR
7.118(H)(3), the Prosecutor, as the challenging party, must “show either that the Board’s
decision was ‘a clear abuse of discretion’ or ‘was in violation of the Michigan Constitution, a
statute, an administrative rule, or a written agency regulation.’ ” In re Parole of Elias, 294 Mich
App at 538.2 “An abuse of discretion occurs when the circuit court’s decision falls outside the
range of reasonable and principled outcomes.” Id. The reviewing court is prohibited from


20, 2019 (Docket No. 341112). In re Parole of Layman is not binding on this Court. MCR
7.215(C)(1).
2
 In re Parole of Elias quoted MCR 7.104(D)(5) as the relevant court rule. MCR 7.104(D)(5)
has since been renumbered, and the content is now found in MCR 7.118(H)(3). In re Parole of
Spears, 325 Mich App at 59.



                                                -2-
substituting its judgment for that of the Board. Id. at 538-539, citing Morales v Parole Bd, 260
Mich App 29, 48; 676 NW2d 221 (2003). This Court reviews de novo the proper interpretation
and application of the Michigan Constitution, statutes, court rules, and administrative guidelines.
People v Kennedy, 502 Mich 206, 213; 917 NW2d 355 (2018).

                                          B. ANALYSIS

        “Although matters of parole lie solely within the broad discretion of the [Board], . . . that
discretion is clearly restricted by legislative limitations.” In re Parole of Haeger, 294 Mich App
549, 556; 813 NW2d 313 (2011) (citations and quotation marks omitted). The Legislature
mandates the Board’s use of the parole guidelines, which were developed by the MDOC and
consistent with MCL 791.233e. The parole guidelines “form the backbone of the parole-decision
process,” and are designed to account for all relevant facts and circumstances that should be
considered in a parole decision. In re Parole of Elias, 294 Mich App at 512. After a potential
parolee is evaluated under the guidelines and scored with respect to each guidelines category, the
scores are “aggregated to determine a total guidelines score.” In re Parole of Johnson, 219 Mich
App 595, 599; 556 NW2d 899 (1996). The total parole guidelines score is used to determine a
prisoner’s probability of parole by placing the prisoner in a category of high, average, or low. Id.
A prisoner with a parole guidelines score of 3 points or greater warrants placement in the
category of high probability of parole. In re Parole of Elias, 294 Mich App at 518.

        Plunkett’s parole guidelines score was +10 points, placing him in the category of high
probability of parole. As a result, the Board’s discretion whether to grant or deny parole was
limited. MCL 791.233e(6). The Board’s discretion to depart from the parole guidelines is
governed by MCL 791.233e(6), which states:

       The parole board may depart from the guidelines by denying parole to a prisoner
       who has a high probability of parole as determined under the parole guidelines or
       by granting parole to a prisoner who has a low probability of parole as determined
       under the parole guidelines. A departure under this subsection shall be for
       substantial and compelling reasons stated in writing. The parole board shall not
       use a prisoner’s gender, race, ethnicity, alienage, national origin, or religion to
       depart from the recommended parole guidelines.

Accordingly, the Board must grant parole to a prisoner who is given a high probability of parole
on the basis of his or her parole guidelines score, “absent substantial and compelling reasons to
depart from that decision.” In re Parole of Elias, 294 Mich App at 539. A “substantial and
compelling reason” is “ ‘an objective and verifiable reason that keenly or irresistibly grabs our
attention; is of considerable worth in deciding the length of a sentence; and exists only in
exceptional cases.’ ”3 Id. at 542, quoting People v Babcock, 469 Mich 247, 258; 666 NW2d 231

3
 The Legislature amended MCL 791.233e on December 12, 2018, to add subsection (7). 2018
PA 339. MCL 791.233e(7) sets forth the specific circumstances that constitute a “substantial and
compelling objective” reason to depart from the parole guidelines when a prisoner has a high
probability of parole. MCL 791.233e(7) was not in effect when the circuit court reversed the
Board’s decision granting parole, and therefore, is inapplicable to this case.



                                                -3-
(2003). In circumstances such as this, the circuit court should not disturb the Board’s decision
unless it finds that the Board abused its discretion because substantial and compelling reasons to
depart from the guidelines existed.

        Plunkett first argues that the circuit court erred when it concluded that the Board abused
its discretion when it conditioned parole on Plunkett’s continued sex-offender therapy. He
supported his argument with citation to an unpublished and, therefore non-binding opinion in this
Court.4 However, unpublished opinions of this Court do not have precedential effect. MCR
7.215(C)(1). In any event, the circuit court’s analysis was entirely independent of Plunkett’s
continued sex-offender therapy. The circuit court’s entire analysis focused on the Board’s failure
to consider the fact that several of the MDOC’s assessments expressed concern that Plunkett
would reoffend.

        More convincingly, Plunkett argues that the circuit court abused its discretion when it
concluded that the Board failed to consider all of the relevant facts and circumstances when
deciding to grant parole. The circuit court concluded that the Board abused its discretion by
failing to consider the fact that there were concerns with over half of the dynamic risk factors
contemplated by Plunkett’s Qualified Mental Health Professional (QMHP) evaluation. We
acknowledge that there were such concerns however, the circuit court’s assertion that the Board
ignored those concerns is belied by the record. After Plunkett’s parole interview, a case
summary report was developed for the Board’s review. The case summary report acknowledged
Plunkett’s combined STATIC-99R and STABLE-20075 scores and mentioned that there were
dynamic risk factors with some concerns, specifically sex as a coping mechanism and deviant
sexual behavior. The case summary report recognized that Plunkett accepted responsibility for
his actions and expressed remorse for the harm he caused the victim.                  Plunkett’s
acknowledgment that his alcohol abuse was the primary catalyst for his aggression and deviant
action was noted, as well as his completion of a substance-abuse program and sex-offender-
therapy program. Plunket’s 2017 Correctional Offender Management Profiling for Alternative
Sanctions (COMPAS) 6 scores were listed as mostly good in the therapy termination report.
Plunkett also received a low score for recommended supervision on his COMPAS report.
Further, Plunkett received positive scores in the areas of reentry social isolation,

4
 Defendant cited In re Parole of Layman, unpublished per curiam opinion of the Court of
Appeals, issued September 20, 2018 (Docket No. 341112), p 2.
5
  The STATIC-99R is an assessment tool designed to support the prediction of sexual offending
recidivism in Adult Sex Offenders. The STABLE 2007 assesses change in intermediate-term
risk status, assessment needs, and help predict recidivism in sexual offenders by estimating
‘stable dynamic risk based upon the number of stable dynamic risk factors present in any one
individual.
6
  The COMPAS program “is a comprehensive risk and needs assessment system, which takes
into account both static information (such as the prisoner’s past criminal offenses) and dynamic
data (such as the prisoner’s evolving attitudes and mental condition),” and “generates a score
ranking the offender’s statistical likelihood of violence, recidivism, success on parole, and other
factors.” In re Parole of Elias, 294 Mich App at 520-521(citations omitted).



                                                -4-
vocation/education, depression/mental health, and reentry substance abuse, and negative scores
in the areas of reentry cognitive behavioral (conviction), family criminality, reentry social
environment, and reentry residential instability. Thus, the case summary report recommended
that Plunkett be released to a residential sex-offender program (RSOP) if granted parole.

        After consideration of multiple evaluations and reports, the Board found that Plunkett fell
within the moderate-high or high risk category on all three recidivism assessments. While there
were also “some concerns” with over half of the dynamic risk factors on Plunkett’s QMHP
evaluation, all of these concerns were contained in Plunkett’s file, and it was error for the circuit
court to assume that the Board ignored evidence contained in the record. In re Parole of Elias,
294 Mich App at 547. The circuit court did not highlight any objective information not
contained in the Board’s file and report. It did accept, inferentially, the prosecutor’s argument
that the very heinous nature of the underlying offense and its irrevocable injury to victim
mediated against release.

        The circuit court clearly disagreed with the Board’s evaluation of the factors and
seemingly applied a “preponderance-of-the-evidence” standard to evaluate the Board’s
interpretation of Plunkett’s QMHP evaluation. While discussing Plunkett’s QMHP evaluation,
the circuit court stated that “there needs to be reasonable assurances that there is in fact a
preponderance, not a probability or a likelihood, that’s what that is all about.” The circuit court
focused on the fact that there were some concerns with over half of the dynamic risk factors,
stating, “[t]hat doesn’t even get you to a preponderance tipping of the scales or anything here.”
There is no case law or statutory support that there is a limit to the number of dynamic risk
factors with some concerns before parole is unwarranted. Although the circuit court ultimately
applied an abuse-of-discretion standard to evaluate the Board’s decision granting parole, the
circuit court’s analysis is one more example of how it substituted its judgment for that of the
Board.

                                       III. CONCLUSION

       The Board considered Plunkett’s criminal history, the details of his offenses, his
substance abuse and sex-offender therapy, and all of his evaluations and assessments before
concluding that substantial and compelling reasons to deny Plunkett parole did not exist. After
weighing the entire parole file, the Board determined that Plunkett’s STATIC-99R and
STABLE-2007 scores did not constitute substantial and compelling reasons to depart from the
guidelines and that there was reasonable assurance that Plunkett will not be a menace to society.
Accordingly, the circuit court erred by substituting its judgment for that of the Board, which has
broad discretion over matters of parole, and concluding that there were substantial and
compelling reasons to depart from the guidelines and to deny Plunkett parole.

        Reversed and remanded for reinstatement of the order granting parole. We do not retain
jurisdiction.



                                                              /s/ Jane M. Beckering
                                                              /s/ Mark J. Cavanagh



                                                -5-
      /s/ Cynthia Diane Stephens




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