MOORE v. PAROLE BOARD

SOURIS, J. (for reversal).

Plaintiff, by original action, sought from the Court of Appeals its writ of mandamus to compel the Michigan parole board to assume jurisdiction over him for the purpose of considering his entitlement to release from imprisonment on parole. Upon plaintiff's application to review denial of the writ by the Court of Appeals ( Moore v. Parole Board, 4 Mich. App. 261), we granted leave to appeal.

Moore, without the assistance of counsel, pled guilty to first-degree murder in 1938 and was convicted and sentenced therefor to life imprisonment in solitary confinement at hard labor as required by our statute. CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548). In 1950 the successor of the sentencing judge denied a delayed motion to vacate sentence and for new trial and this Court affirmed. People v. Moore (1955), 344 Mich. 137. The United States Supreme Court, however, reversed on the ground that petitioner had sustained his burden of proving that his guilty plea was invalidly accepted because obtained without the benefit of counsel and absent an intelligent waiver of his right to counsel. Moore v. Michigan (1957), 355 U.S. 155 ( 78 S Ct 191, 2 L ed 2d 167). In 1958, on remand, Moore was tried for first-degree murder, this time with counsel's assistance, and was convicted by jury verdict of second-degree murder. The trial judge, in sentencing Moore to imprisonment for 25 to 40 years, commented that he had considered, "but not by way of reduction of sentence", the fact that Moore had spent nearly 20 years in prison under the sentence invalidated by the United States Supreme Court.

This action in mandamus was commenced in 1964. Under our statute (CLS 1961, § 791.234 [Stat Ann 1965 Cum Supp § 28.2304]), prisoners sentenced to imprisonment for indeterminate terms become subject to the jurisdiction of the parole board when they have served time equal to their minimum sentences less allowances made for regular and special good-time service. Unless plaintiff prevails herein, he claims that he will not be subject to the board's jurisdiction, and thus not eligible for parole, until at the earliest 1970 when his minimum term of 25 years less regular and special good-time allowances since his 1958 conviction will have been served. It is his contention in this proceeding that the nearly 20 calendar years he served under his invalidated conviction and sentence from 1938 to 1958, and the regular and special good-time credit he earned during that time, should be credited to him for the purpose of determining the parole board's jurisdiction to consider him for parole and, we assume, for the purpose of determining the expiration of his maximum sentence.

Had Moore's second conviction occurred after June 22, 1965, the date PA 1965, No 67 was adopted and given immediate effect, it is agreed that the sentencing judge would have been required to credit him for the time he had served under the sentence imposed for the prior erroneous conviction by reduction of the maximum sentence to be imposed. In 1958, however, when Moore was convicted the second time, the statute's language was permissive only and not, as it has been since 1965, mandatory.

Moore contends that the statute has been construed to be retroactively applicable, relying upon a statement appearing in one of our earlier decisions before the 1965 amendment ( Attorney General v. Recorder's Court Judge, 341 Mich. 461, 475), and, furthermore, that the 1965 amendment did not adversely affect the statute's retroactivity. In the Attorney General's Case this Court said, "By its language this enactment was made retroactive." It is this statement the plaintiff relies upon to support his contention that the statute, before and after its amendment, is retroactively applicable and that, therefore, it permitted, and now requires, the parole board to credit a prisoner with time served and earned during prior imprisonment under an erroneous conviction.

The contention, however, does not fit the language of the statute which grants power only to the sentencing judge and not to the parole board. Furthermore, if it be argued that the statute authorizes the sentencing judge now to reduce a prior valid sentence to the extent of time served during imprisonment under an erroneous conviction, prior decisions of this Court suggest that the statute so construed would impinge impermissibly upon the power of pardon and commutation of sentences granted exclusively to the governor by article 6, § 9 of our Constitution of 1908 and article 5, § 14 of our Constitution of 1963. People v. Freleigh (1952), 334 Mich. 306, and cases cited therein. For these reasons we cannot give to the statute the meaning urged upon us by plaintiff, nor do we believe this Court's statement in the Attorney General's Case, quoted above, means other than that the statute is retroactive only in the sense that time served under erroneous convictions before, as well as after, its enactment thereafter could be considered by a sentencing judge and credited against the sentence to be imposed upon conviction after retrial.

An alternative contention made by plaintiff is that the statute, even in its original form, requires a sentencing judge to allow credit for past time served under an erroneous conviction, and we agree. In numerous cases, in this State and in other jurisdictions, the word "may" when used in legislation or in contracts has been construed to mean "shall", the context of its use considered. See, for example, the following cases from this Court: McBrian v. City of Grand Rapids (1885), 56 Mich. 95; Grand Lodge of Ancient Order of United Workmen v. Fisk (1901), 126 Mich. 356; Gitchell v. Whipple (1901), 126 Mich. 646; Freud v. Wayne Circuit Judge (1902), 131 Mich. 606; and Brooke v. Brooke (1935), 272 Mich. 627. Cf. Smith v. School District No. 6, Fractional, Amber Township (1928), 241 Mich. 366. See, also, Supervisors of Rock Island County v. United States, ex rel. State Bank (1867), 4 Wall (71 US) 435 ( 18 L ed 419) (relied upon pertinently by this Court in Corliss v. Village of Highland Park, 132 Mich. 152, 160, 161), where the Supreme Court, in construing a statute which provided that a board of supervisors "may, if deemed advisable", levy a special tax when the county owed debts its current revenues were not sufficient to pay, held the quoted phrase to require a tax levy, the statutory condition existing. It expressed the reasons for its decision, singularly applicable to the decision we reach, as follows:

"In King v. Inhabitants of Derby, Skin 370 (90 Eng Rep 164), there was an indictment against `divers inhabitants' for refusing to meet and make a rate to pay `the constables' tax.' The defendants moved to quash the indictment, `because they are not compellable, but the statute only says that they may, so that they have their election, and no coercion shall be.' The court held that may, in the case of a public officer, is tantamount to shall, and if he does not do it, he shall be punished upon an information, and though he may be commanded by a writ, this is but an aggravation of his contempt.

"In Rex Regina v. Barlow, 2 Salk 609 (91 Eng Rep 516), there was an indictment upon the same statute, and the same objection was taken. The court said: `When a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall: thus, 23 Hen VI., says the sheriff may take bail. This is construed he shall, for he is compellable to do so.'

"These are the earliest and the leading cases upon the subject. They have been followed in numerous English and American adjudications. The rule they lay down is the settled law of both countries.

"In Mayor of City of New York v. Furze, 3 Hill 612, and in Mason v. Fearson, 9 How (50 US) 248, the words, `it shall be lawful' were held also to be mandatory. See Attorney General v. Lock, 3 Atk 164 (26 Eng Rep 897); Alderman Blackwell's Case, 1 Vern 152 (21 Eng Rep 868); Dwarris on Statutes 712; Malcom v. Rogers, 5 Cow (NY) 188; Newburg Turnpike Co. v. Miller, 5 Johns Ch (NY) 101, 113; Justices of Clark County Court v. Paris, W. K. Turnpike Co., 11 B Mon (50 Ky) 143; Minor v. Merchants Bank, 1 Peters (26 US) 48, 64; Commonwealth v. Johnson, 2 Binn (Pa) 275; Virginia v. Justices, 2 Va Cas 9; Ohio, ex rel. Whiteman, v. Governor, 5 Ohio St. 528; Coy v. City Council of Lyons, 17 Iowa 1.

"The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language — whenever the public interest or individual rights call for its exercise — the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.

"In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose `a positive and absolute duty.'

"The line which separates this class of cases from those which involve the exercise of a discretion, judicial in its nature, which courts cannot control, is too obvious to require remark. This case clearly does not fall within the latter category. People v. Superior Court, 5 Wend (NY) 114, 125, 10 Wend (NY) 285, 289; People v. Vermilyea, 7 Cow (NY) 369, 393; Hull v. Supervisors, 19 Johns (NY) 260." Supervisors of Rock Island County v. United States, ex rel. State Bank (1867), 4 Wall (71 US) 435, 446 ( 18 L ed 419).

It may be argued plausibly that the 1965 amendment, changing the word "may" to "shall", demonstrates that only thereafter did the legislature intend mandatory application of the statute. However, it is also plausible to argue, and we so conclude, that the legislature in 1965 simply eliminated any possibility of mistaking its original intention. The very nature of the law's subject matter reinforces our conclusion. Six years before the statute was originally enacted, this Court expressed the view that:

"In the last analysis, the law is not vindictive, and possibly the criminal code should be amended as was done in Iowa, so as to credit a prisoner on a new sentence with the time he has served under a void sentence. This also would bring uniformity in the practice. This, however, is a matter for the legislature, not for us." In re Doelle (1948), 323 Mich. 241, 249.

By this language this Court announced its recognition of justice's requirement that credit be given in the circumstances that we confront today, while acknowledging that its implementation as a matter of uniform State policy was a legislative responsibility. Notwithstanding our acknowledgment of the legislature's prime responsibility for establishment of such a policy, however, the late Judge W. McKay Skillman, judge of the recorder's court in the city of Detroit, just two years later, effectively credited a defendant upon retrial with time served on a prior vacated conviction by imposing the new sentence nunc pro tunc as of the date of the original sentence even before there was legislative authority therefor and this Court later affirmed his action in doing so. Attorney General v. Recorder's Court Judge (1954), 341 Mich. 461.

The point is that both the judicial and legislative branches of government by their words and conduct have recognized the justice of crediting such prior service against new sentences and, indeed, now the practice has been established as a matter of enlightened State policy. Thus, by construing the original legislative enactment to have been mandatory, rather than merely permissive, we do no violence to such established State policy.

Plaintiff also contends that denial of credit for past service on a void conviction violates Federal and State constitutional guarantees of equality and due process and against double jeopardy. Fifth and Fourteenth Amendments to the United States Constitution; Mich Const 1908, art 2, §§ 1, 14 and 16, and Mich Const 1963, art 1, §§ 1, 2, 15 and 17. While it is not necessary to pass upon such issues, having concluded as we have that plaintiff was entitled by statute to the credit he seeks, we note that identical and related claims recently have received the attention of many State and Federal courts. See, for example, People v. Henderson (1963), 60 Cal.2d 482 ( 35 Cal.Rptr. 77, 386 P.2d 677); Patton v. North Carolina (CA 4, 1967), 381 F.2d 636; United States v. White (CA 7, 1967), 382 F.2d 445, and other authorities cited in each of the foregoing cases. These issues also have received recently the attention of legal scholars. See, for example, Agata, "Time Served Under a Reversed Sentence or Conviction — a Proposal and a Basis for Decision" (1963), 25 Mont LR 3; Van Alstyne, "In Gideon's Wake: Harsher Penalties and the `Successful' Criminal Appellant" (1965), 74 YLJ 606; Note, "Twice in Jeopardy" (1965), 75 YLJ 262; annotation, "Right to credit for time served under erroneous or void sentence or invalid judgment of conviction necessitating new trial", 35 ALR2d 1283.

There remains for disposition a problem of procedure. This is an original proceeding for writ of mandamus against the parole board, but until the plaintiff's order of sentence is corrected to reflect the credit we hold the statute required the sentencing judge to grant, the parole board has no clear legal duty to perform which can be compelled by mandamus. Accordingly, this cause is remanded to the Court of Appeals to be held in abeyance by that Court to accord plaintiff an opportunity to apply to the successor of the sentencing judge for correction of his order of sentence in accordance herewith. Thereafter, within a reasonable time, if the parole board exercises jurisdiction over plaintiff pursuant to CLS 1961, § 791.234 (Stat Ann 1965 Cum Supp § 28.2304) or if otherwise plaintiff be discharged from his sentence, the Court of Appeals shall dismiss the plaintiff's petition for the writ of mandamus. On the other hand, if the parole board fails so to exercise its jurisdiction over plaintiff, the Court of Appeals shall issue its writ of mandamus to compel such action forthwith.

Reversed and remanded. Plaintiff may tax his costs.

DETHMERS, C.J., concurred with SOURIS, J.

BRENNAN, J. (for grant of writ for limited purpose).

Plaintiff was convicted in 1958 of murder in the second degree. Previously, the plaintiff had spent nearly 20 years in prison under an invalid sentence after a plea of guilty, arising out of the same homicide. The prior plea and sentence were invalidated by the United States Supreme Court. At the time of sentencing in this case, there was a statute in Michigan which permitted the trial judge to grant or allow the defendant credit against and reduction of the statutory maximum sentence equal to the time already served on the prior erroneous conviction. The offense of second-degree murder of which the defendant was convicted in 1958 is punishable by imprisonment in the State prison for life or any term of years in the discretion of the court.

Without discussing the question of whether the prior sentence credit statute was mandatory or permissive in 1958, it is readily apparent that the prior sentence credit statute does not apply to the offense of second-degree murder. The statute required allowance of credit against and by reduction of the statutory maximum sentence. It is patently impossible to reduce a sentence of life by the number of years served under the prior invalid sentence. Thus a sentence of "life imprisonment less 20 years" is meaningless, absent God-like foreknowledge of the future or a statutory formula utilizing life expectancy tables. Similarly, where the maximum term of years is left entirely to the discretion of the sentencing judge, it is impossible meaningfully to reduce the maximum by the number of years served under the previous sentence. In such a case, the process of reduction is entirely a subjective thing in the mind of the sentencing judge.

In the present case, the sentencing judge in imposing a sentence of 25 to 40 years commented that he had considered Moore's previous invalid imprisonment "but not by way of reduction of sentence." In an offense, such as second-degree murder where no specific statutory maximum sentence is imposed, the best we could expect of a judge in applying this statute is that he declare upon the record that he has reduced the maximum sentence by the amount of the previous invalid sentence. Had the trial judge in this case sentenced the defendant to a term of 25 to 60 years, then reduced the 60 by 20, he would have achieved the same result, and clearly in the light of his discretion under the second-degree murder statute, he would have been entitled to do so. Neither can it be contended that this impossibility of applying the sentence credit statute to second-degree murder is a mere legislative oversight or a condition of grave injustice or a constitutional deprivation which ought to be cured by this Court's engaging in fancy judicial footwork.

It is obvious that the sentence credit statute does not apply to first-degree murder for in that case life imprisonment is mandatory and no amount of time served under a previous invalid sentence could reduce that penalty. If the trial judge in this case had seen fit to impose a life sentence upon the defendant as he had the authority to do, none could say that it was possible to reduce such a maximum by any specific term of years.

Therefore, the real question in this case is not whether credit should have been given against the maximum sentence under the prior invalid sentence credit statute, but rather whether good time and special good time made by Moore during his prior erroneous incarceration should be counted in determining his eligibility for parole under the 1958 conviction. In the case of Meyers v. Jackson (1929), 245 Mich. 692, 693, the life sentence of Meyers was commuted by the governor "so that the same will expire 15 years from date of sentence." Meyers argued that he was entitled to good-time allowances by way of reduction of the 15-year commuted sentence. The Court held:

"Obviously, the question of good time applies only to those [sentences] where the date of expiration of sentence is fixed. Plaintiff was sentenced to imprisonment for life. The period of his imprisonment was not fixed. There is no provision in the statute whereby a prisoner sentenced to imprisonment for life, without parole or commutation of sentence at an earlier period, may be discharged." Meyers v. Jackson, supra.

At first blush, it would appear that the Meyers Case is a precedent for the proposition that a person sentenced to life imprisonment cannot earn good time. The statute concerning good time does not make any such distinction. It says:

"Every convict who shall have no infraction of the rules of the prison or the laws of the State recorded against him, shall be entitled to and shall receive a reduction from his sentence as follows: [there follows the itemization of the various good time allowances]."

The statute specifically says that it shall not be construed so as to allow any good time in cases of commuted sentences unless so stipulated in the executive order commutating the sentence. This statutory provision would seem to bolster the following reasoning in the Meyers Case, supra, at page 693:

"The date of expiration of plaintiff's sentence is fixed by executive order at 15 years from date of sentence. Plaintiff, if he accepts the benefit of the commutation granted, must accept it in accordance with the terms imposed by the executive authority granting it."

Since in the Meyers Case there was a commutation, and since plaintiff in the Meyers Case could not accept the commutation other than on its plain terms, the language in the Meyers Case to the effect that good-time allowances do not apply to life sentences was not essential to decision there. Normally, of course, the point is moot, since no amount of good time earned can reduce a life sentence. It simply is not possible to deduct a stated number of years from an indefinite life sentence. And further, with respect to life sentences other than for murder in the first degree, the statute (CLS 1961, § 791.234 [Stat Ann 1965 Cum Supp § 28.2304]) provides that the parole board should have jurisdiction after 10 calendar years. It is therefore the obvious legislative assumption that the question of whether or not a lifer earns good time is moot.

Despite such legislative assumption, the present factual situation requires us to determine whether a lifer does in fact earn good time even though in most cases it has no practical value.

As we have seen, the good-time statute purports to give good-time credits to every convict who behaves himself in prison.

Clearly, the purpose of this enactment is to encourage good behavior by prisoners and thus generally to improve conditions in the prisons and reduce custodial costs to the taxpayers.

Presumably, the statute makes no distinction between lifers and other convicts by reason of the fact that the legislature wanted to encourage good behavior by lifers as well as by all other prisoners.

Admittedly, the good-time credit incentive is rather nebulous in the case of a convict imprisoned for life. But since hope and postconviction pleas spring eternal within the incarcerated human breast, it cannot be said the good-time credit law is not at least some encouragement to them. At least, it appears that the legislature thought it would be so, and its policy determination is binding on this Court.

We hold that the petitioner, Willie B. Moore, was a "convict" within the meaning of the good-time statute during his prior incarceration under invalid sentence, and as such, he is entitled to have such allowances for good behavior as were earned by him during those years credited to him, for purposes of parole consideration.

Mandamus should issue for such purposes only.

BLACK, J., concurred in result with BRENNAN, J.