                          STATE OF MICHIGAN

                           COURT OF APPEALS



MATTHEW MAKOWSKI,                                                  UNPUBLISHED
                                                                   August 18, 2016
              Plaintiff-Appellant,

v                                                                  No. 327396
                                                                   Court of Claims
GOVERNOR and SECRETARY OF STATE,                                   LC No. 14-000260-MP

              Defendants-Appellees.


Before: RIORDAN, P.J., and SAAD and M. J. KELLY, JJ.

PER CURIAM.

         In this dispute over the denial of parole after having his sentence commuted, plaintiff,
Matthew Makowski, appeals the opinion and order of the Court of Claims denying his request
that it retain jurisdiction after our Supreme Court’s decision remanding Makowski to the parole
board’s jurisdiction, see Makowski v Governor, 495 Mich 465; 852 NW2d 61 (2014), as
amended on reh’g 497 Mich 862 (2014), and the parole board’s decision to deny him parole. On
appeal, Makowski argues—on various grounds—that the board had no authority to deny him
parole and the Court of Claims should have retained jurisdiction to ensure that the board paroled
him as it was required to do. We conclude that the commutation reduced the severity of
Makowski’s sentence by making him immediately eligible for parole, but did not mandate
parole. Because the board had jurisdiction over Makowski and had the discretion to consider
whether he was an appropriate candidate for parole, the Court of Claims correctly determined
that there were no grounds for retaining jurisdiction to supervise the board’s decision-making
process. Consequently, we affirm.

                                       I. BASIC FACTS

        The circuit court sentenced Makowski to serve life in prison without the possibility of
parole after a jury found him guilty of first-degree murder in 1988. Id. at 468. In 2010, the
board considered Makowski’s application for commutation of his sentence and sent the
application to the Governor with a favorable recommendation. Id. at 468-469. The Governor
signed the commutation. It was then signed by the Secretary of State who affixed the Great Seal.
Id. at 469. After the family of the victim expressed opposition, the Governor revoked the
commutation. Id. at 469-470.




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       Makowski sued the Governor and Secretary of State in 2011. He argued that the
Governor lacked the authority to revoke his commutation once it was signed, sealed, and
delivered. Id. at 470. The case eventually went to our Supreme Court and it determined that the
Governor had validly commuted Makowski’s sentence and lacked the authority to revoke the
commutation once made. Id. at 485-490. Accordingly, it ordered the Department of Corrections
to reinstate Makowski’s sentence to “a parolable life sentence” and remanded him into the
board’s jurisdiction. See Makowski, 495 Mich at 490.

        After our Supreme Court remanded the case, the board issued a decision in October 2014
expressing “no interest” in taking further action to parole Makowski. Makowski moved for
clarification or rehearing of the Supreme Court’s decision; he complained that the Department of
Corrections used the final sentence of Court’s decision to treat him as a person with a parolable
life sentence instead of someone with a sentence commuted to a minimum term of years. He
contended that the board already agreed to parole him when it sent the commutation
recommendation to the Governor, and urged the Supreme Court to modify its opinion to restore
him to exactly the status he would have had but for the Governor’s wrongful attempt to revoke
the commutation.
       In lieu of granting the motion, the Supreme Court entered an order amending the last
sentence of its opinion to read:
       Accordingly, we reverse the judgment of the Court of Appeals. Consistent with
       the undisputed language of plaintiff’s commutation, we further order the
       Department of Corrections to reinstate plaintiff’s sentence to a minimum term of
       years—equivalent to the amount of time served as of the date of the Michigan
       Parole and Commutation Board’s decision to recommend that plaintiff’s sentence
       be commuted—to a maximum of life, and remand plaintiff to the jurisdiction of
       the parole board. [Makowski, 497 Mich at 863, amending on reh’g 495 Mich at
       490.]

        Makowski then moved to have the trial court retain jurisdiction over the case because
further remedial action might be needed. He explained that he had not been processed for parole
even though all other prisoners granted a commutation were promptly released. Thereafter, the
board again denied Makowski parole; it explained that Makowski minimized his responsibility
for the crime and needed additional insight into his offense to assure that he did not pose a risk to
the community. Makowski asserted that all the prisoners with mandatory life sentences granted
a commutation during the Granholm administration were punctually processed for release, and
that the import of the Supreme Court’s decision was that he too should be treated exactly as
those prisoners. He argued that the Supreme Court did not remand the matter to the board to
consider anew whether he should be released, but rather did so to process him for release.

        In October 2014, while the motion to retain jurisdiction was still pending, the case was
transferred to the Court of Claims, which then heard the motion. The Court of Claims issued an
opinion and order explaining that it considered the gravamen of Makowski’s argument to be that
the board violated a legal duty arising out of historical precedent and procedural implications
rather than a statutory mandate. The court directed the parties to address whether the court
properly understood the gravamen of the issue, and if it did, why the proper remedy was not to
file a new action for habeas corpus or mandamus. The court further ordered the parties to

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provide it with any legal authority pertaining to whether the board must parole a prisoner after
the board recommends, and the governor grants, a commutation.

        At a second hearing, Makowski maintained that the court should place him in the same
position he would have been in had Governor Granholm not attempted to revoke his
commutation. He characterized his commutation as effectively granting him parole, leaving the
board with the ministerial duty to carry out the commutation. The Governor and Secretary of
State argued that the commutation merely rendered Makowski eligible for parole.

       In April 2015, the Court of Claims issued its opinion and order. It stated that Makowski
had identified a “historical practice, but not an actual, obvious legal entitlement to an outright
grant of parole.” The court concluded that the law did not provide that a commutation entitled
him to parole. It then examined the language used in the commutation and determined that it
simply made Makowski eligible for parole, but not entitled to it. The court opined that, if
Makowski, felt that the board had not properly exercised its discretion, his recourse was to file a
new cause of action. The court did order that the board could not consider or use any
documentation conveyed by Governor Granholm or her agents in connection with the former
Governor’s attempted revocation when considering Makowski for parole, but otherwise denied
Makowski’s requests for relief.

       Makowski then appealed in this Court and applied to the Supreme Court for permission
to bypass this Court. The Supreme Court denied the request. Makowski v Governor, 498 Mich
876; 868 NW2d 617 (2015).

                            II. RIGHT TO IMMEDIATE PAROLE

                                A. STANDARDS OF REVIEW

        Makowski argues that the Court of Claims erred in various ways when it refused to grant
his requested relief. This Court reviews de novo questions of constitutional law. People v
Ackley, 497 Mich 381, 388; 870 NW2d 858 (2015). This Court also reviews de novo whether
the trial court properly selected, interpreted, and applied the relevant statutes. Kincaid v
Cardwell, 300 Mich App 513, 522; 834 NW2d 122 (2013).

                                         B. ANALYSIS

        Makowski argues that the board had no authority to deny him parole once the Governor
commuted his sentence. Specifically, he maintains that the Governor’s commutation entitled
him to parole and the board’s refusal to parole him contravened the Governor’s exclusive
authority to commute sentences.

       Michigan’s constitution grants the governor the power “to grant reprieves, commutations
and pardons after convictions . . . upon such conditions and limitations as he may direct, subject
to procedures and regulations prescribed by law.” Const 1963, art 5, § 14. The power to
commute a sentence does not alter the source or authority of the original sentence; only trial
courts have the authority to issue a judgment of sentence. MCL 769.1(1). The Governor’s
power to commute, rather, is the power to alter or amend an existing sentence to one that is less
severe. See Kent Co Prosecutor v Kent Co Sheriff, 425 Mich 718, 725; 391 NW2d 341 (1986)

                                                -3-
(opinion by BOYLE, J.). Makowski, therefore, mischaracterizes his amended sentence when he
refers to it as a “Governor-imposed sentence.” In this case, the Governor exercised her authority
to commute Makowski’s sentence by altering it from a sentence of life in prison without the
possibility of parole to one with a minimum term equal to the time served as of a certain date,
and a maximum term of life in prison.1 Although the Governor modified his sentence to a less
severe sentence, Makowski’s sentence remained the sentence of the circuit court. Further, as
amended, Makowski’s sentence was an indeterminate sentence whose minimum term he had
already served; accordingly, the board had jurisdiction to consider him for parole. MCL
791.234(1) and (2).

         The board’s decision to deny parole even after the Governor’s decision to commute
Makowski’s sentence also did not contravene the Governor’s exclusive authority to commute
sentences. In this case, it is evident that the Governor did not amend Makowski’s sentence to
one for time-served and did not explicitly order him to be paroled. The undisputed language of
similar commutations does not order “release, or “parole,” but instead indicates that the prisoner
is eligible for parole. Because the Governor did not specifically provide for Makowski’s release,
but instead exercised her authority to alter his sentence to make him eligible for parole, the
board’s exercise of its discretion and adherence to the normal procedures for paroling a prisoner
do not unconstitutionally interfere with the Governor’s authority to commute a sentence. Had
the Governor wanted to commute Makowski’s sentence to include immediate parole, she could
have done so in express terms.

         We are also unpersuaded by Makowski’s arguments concerning the Governor’s decision
to set the minimum sentence to the date of the board’s recommendation; as Makowski notes, this
date makes it possible for the board to rely on its prior proceedings leading to the
recommendation for commutation as the grounds for paroling a prisoner whose sentence has
been commuted, but it does not follow that setting that date amounts to an order removing the
decision from the board’s discretion. There is simply nothing within the language of the
commutation that requires the board to parole Makowski. Likewise, although the board’s
members might have understood that a vote to recommend commutation amounts to a vote for
parole, the recommendation is not in fact an order of parole. Consequently, the board was not—
in effect—reconsidering a grant of parole under MCL 791.236(2) by refusing to parole him after
his commutation.

        The fact that the board had routinely paroled prisoners who had been given similarly
commutations without further hearings also did not deprive the board of its discretion to deny
parole. A prisoner has no constitutional or inherent right to have his or her sentence commuted
or commuted in a particular way. See Conn Bd of Pardons v Dumschat, 452 US 458, 465; 101 S
Ct 2460; 69 L Ed 158 (1981). And a convicted felon’s expectation of clemency premised on a
state agency’s prior practices does not give rise to a constitutionally protected right to clemency:



1
 The original commutation was destroyed. However, the parties do not dispute that Makowski’s
commutation used identical language to the other commutations issued at the time. See
Makowski, 495 Mich at 478 n 5.


                                                -4-
       A constitutional entitlement cannot “be created-as if by estoppel-merely because a
       wholly and expressly discretionary state privilege has been granted generously in
       the past.” No matter how frequently a particular form of clemency has been
       granted, the statistical probabilities standing alone generate no constitutional
       protections; a contrary conclusion would trivialize the Constitution. . . . [Id.
       (citations omitted).]

Instead, any constitutional right must be grounded in state law: “The ground for a constitutional
claim, if any, must be found in statutes or other rules defining the obligations of the authority
charged with exercising clemency.” Id. As the Court of Claims correctly recognized, Makowski
has not identified any state law that entitled him to the grant of immediate parole after the
Governor amended his sentence. Because he has not established a constitutional or statutory
right to be treated exactly the same as every other prisoner whose sentence was commuted using
the same language, he has not established grounds for the continued assertion of jurisdiction by
the Court of Claims.2

       The Court of Claims correctly determined that the board had jurisdiction over Makowski
as a prisoner who completed the minimum sentence of his amended indeterminate sentence.
MCL 791.234(1) and (2). It also did not err when it concluded that the board had the discretion
to deny him parole.3

       Affirmed.

                                                           /s/ Michael J. Riordan
                                                           /s/ Henry William Saad
                                                           /s/ Michael J. Kelly




2
  Because he only qualified for parole, Makowski’s due process rights included only those rights
normally attending consideration of parole. The commutation left Makowski a mere “potential
parolee who remains in prison” with “no liberty to protect.” In re Parole of Haeger, 294 Mich
App 549, 575; 813 NW2d 313 (2011). “The mere hope that the benefit of parole will be
obtained is too general and uncertain and, therefore, is not protected by due process.” Id.
(internal quotation marks and citation omitted). Therefore, we reject his claim that the Court of
Claims erred by failing to further consider whether the board violated his right to due process.
3
  The question before our Supreme Court primarily involved whether the Governor could revoke
a commutation. For that reason, whether the board had discretion to deny parole on further
review was not properly before the parties until after the Supreme Court’s remand. Given the
procedural posture, we conclude that the Governor and Secretary of State timely and properly
asserted the board’s discretion as a defense to the continued exercise of jurisdiction.


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