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STATE OF MICHIGAN
COURT OF APPEALS


ROBERT C. HICKS, Petitioner-Appellee, v PAROLE BOARD, Respondent-Appellant.

UNPUBLISHED January 9, 2001

No. 224807 Alleghan Circuit Court LC No. 99-026053-AP

Before: McDonald, P.J., and Neff and Zahra, JJ. PER CURIAM. Respondent Parole Board appeals by leave granted the circuit court's order reversing respondent's decision to deny petitioner Robert C. Hicks parole and ordering petitioner paroled. We reverse. In April 1993, a jury convicted petitioner of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), based on a 1989 incident involving an eleven-year-old child. He was sentenced to eight to thirty years' imprisonment. Petitioner has, at all times, denied any involvement in the crime. Petitioner's first parole hearing was set for October 1999. Petitioner was evaluated as having a "high probability of parole,"1 but was denied parole. Respondent's reason for denial was petitioner's failure to participate in a sex offender group therapy program while imprisoned. According to respondent, petitioner's non-participation "preclude[d] the ability to adequately assess reduction of risk, thus deviation was warranted." Petitioner appealed respondent's decision to the circuit court. After reviewing petitioner's department of corrections file, the court found that respondent abused its discretion in denying parole. The court found no objective and verifiable reasons to justify respondent's deviation from the parole guidelines. The court noted that petitioner's file suggested he was a model prisoner who participated in all programs except sex offender group therapy. The court

He was given a parole guideline score of "+7." A score of "+4" or higher constitutes a "high probability" score.

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reversed respondent's decision and ordered that petitioner be released on parole pursuant to any rules and conditions properly imposed by respondent. Respondent filed a motion for reconsideration in the circuit court, relying on this Court's decision in Hopkins v Michigan Parole Board, 237 Mich App 629; 604 NW2d 686 (1999). Respondent argued that the holding in Hopkins regarding separation of powers precluded the circuit court from ordering petitioner's parole. The court denied respondent's motion. In the meantime, petitioner was not released on parole, but instead in November 1999, was reevaluated by respondent Petitioner was again evaluated as having a "high probability for parole,"2 but was again denied parole. The parole notice of action states that respondent lacked reasonable assurance petitioner would not become a menace to society or to the public safety. In addition, respondent included its "substantial and compelling reasons for guideline departure," stating that petitioner's likelihood for recidivism was difficult to determine because he "does not take responsibility for the offense" and remains in "denial." Respondent concluded that petitioner "remains a risk to young children." Petitioner again appealed respondent's decision to the circuit court. On January 19, 2000, the court again found that respondent abused its discretion in denying parole. The court reasoned that respondent ignored the rationale of the court's prior ruling and denied parole on the basis of generalized criteria that did not justify denial in light of the objective data in petitioner's department of corrections file. Insofar as respondent relied on Hopkins as authority precluding the court from ordering parole, the court ruled that the relied-on portion of Hopkins is dicta and, therefore, not binding precedent. Consequently, the court again reversed respondent's denial of parole and ordered that petitioner be released on parole. It is from that order that respondent now appeals to this Court. A parole board's decision whether to parole a prisoner is reviewed for a "clear abuse of discretion." MCR 7.104(D)(5)(b); In re Glover (After Remand), 241 Mich App 127, 129; 614 NW2d 714 (2000). An abuse of discretion is generally found "where an unprejudiced person, considering the facts on which the decisionmaker acted, would say there is no justification or excuse for the ruling." Id. In reviewing an appeal from a circuit court's ruling on the parole board's decision to grant or deny parole, we do not specifically consider whether the circuit court acted within its discretion in ruling on the parole board's decision, but instead conduct a de novo review of whether the parole board abused its discretion in deciding to grant or deny parole. See id., Hopkins, supra, and Killebrew v Department of Corrections, 237 Mich App 650; 604 NW2d 696 (1999). We may not substitute our judgment for that of the parole board. MCR 7.104(D)(5); In re Glover, supra. In reviewing an administrative decision, we determine whether the decision was supported by competent, material and substantial evidence and whether it was contrary to law. Oakland Co Probate Court v Dep't of Social Services, 208 Mich App 664, 666; 528 NW2d 215 (1995).

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That second evaluation resulted in a parole guideline score of "+6."

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On appeal, respondent argues that the circuit court erred in ruling that it abused its discretion in denying parole. Respondent also argues that the court exceeded its power in ordering that petitioner be released on parole. The parole board's discretion is limited by statute. Whether the parole board abused its discretion in granting or denying parole is determined by looking to the record and the statutory requirements. Hopkins, supra at 633; Killebrew, supra at 653. MCL 791.233; MSA 28.2303 provides, in pertinent part: (1) The grant of a parole is subject to all of the following: (a) A prisoner shall not be given liberty on parole until the board has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner's mental and social attitude, that the prisoner will not become a menace to society or to the public safety. That section establishes the minimum standard that must be met before parole may be granted. See Hopkins, supra at 633, Killebrew, supra at 653 (observing that

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