in Re Parole of Steven J Strutz ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
In re Parole of STEVEN J. STRUTZ.
MACOMB COUNTY PROSECUTOR, UNPUBLISHED
February 9, 2016
Appellee,
v No. 323101
Macomb Circuit Court
STEVEN J. STRUTZ, LC No. 14-001039-AP
Appellant,
and
MICHIGAN PAROLE BOARD,
Intervenor-Appellant.
Before: SAWYER, P.J., and BECKERING and BOONSTRA, JJ.
PER CURIAM.
In February of 2014, the Michigan Parole Board (the Board) issued a decision to grant
parole to Steven J. Strutz. The Macomb County Prosecutor objected to Strutz’s release and filed
a motion to stay proceedings and an emergency application for leave to appeal in the circuit
court. By stipulation of the parties, the Board was allowed to intervene and argue why it did not
abuse its discretion in deciding to grant parole to Strutz. The circuit court determined that the
Board had abused its discretion, and thus, it entered a May 12, 2014 opinion and order reversing
the Board. Because the prosecution did not meet its burden of establishing that the Board clearly
abused its discretion when it granted parole to Strutz, and because the circuit court invaded the
Board’s authority and substituted its judgment for that of the Board, we reverse the circuit
court’s order and remand for reinstatement of the Board’s grant of parole.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case arises out of Strutz’s grant of parole from his imprisonment for his March 26,
1999 convictions for second-degree murder, MCL 750.317, and possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b, which followed his plea of nolo
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contendere to such charges. Strutz’s criminal convictions arise out of his actions on June 27,
1997. Strutz had been married to Margaret Strutz for 14 years and had two daughters before
divorcing. Strutz took the divorce badly and admitted to abusing alcohol as a coping
mechanism. His ex-wife began to date another man, Michael Gibson (Gibson). On June 27,
1997, Strutz’s ex-wife came to his home along with Gibson to drop off Strutz’s daughters for
visitation. At the time, Strutz had been drinking for a week and was suicidal. He was so
intoxicated that he has no memory of the incident, but witnesses, including Strutz’s ex-wife,
reported what happened. Strutz’s daughters were crying and screaming, and he was trying to
console them. At some point, Strutz stood up from speaking with his daughters, retrieved a gun,
and fatally shot Gibson four times in the back. Strutz was arrested at the scene and convicted
pursuant to his plea. The trial court sentenced him to 18 to 40 years for the second-degree
murder conviction, to be served consecutively to a two-year sentence for his felony-firearm
conviction.
Because of credit given for time served on the felony-firearm conviction, Strutz became
eligible for parole for the first time in 2013, when he was 54 years old. On July 2, 2013, a short
time before he became eligible for parole, Strutz received a major misconduct ticket for
possessing dangerous contraband. Strutz had complained to prison officials that he was in
danger from other prisoners involved in gang activity. He subsequently cut his wrists using a
razor blade and received a major misconduct for possessing the razor blade, which is classified
as dangerous contraband. Strutz administratively appealed the major misconduct decision,
arguing that he should not be held accountable for possessing the razor blade because his
abnormal mental state made him unable to control his actions. His administrative appeal was
denied, with the prison officials reasoning that Strutz was responsible for his conduct and
concluding that his suicide attempt had been manipulative. Following this major misconduct,
Strutz was reclassified by MDOC as a “high” assaultive risk.
Because of his impending parole eligibility, Strutz was referred for a Correctional
Offender Management Profiling for Alternative Sanctions (COMPAS) assessment and a report
was generated on August 2, 2013.1 The COMPAS assessment categorized Strutz as having a
“low” risk for violence and recidivism. Various scales were used in the report to assess Strutz in
a number of pertinent areas. The report found it “unlikely” that Strutz would have a substance
abuse problem. In this regard, the report noted that Strutz admitted to committing the murder for
which he was imprisoned while he was “high/drunk” but also noted that he had not had any prior
drug charges or convictions and that he “indicated no history of alcohol problems.” With regard
to Strutz’s potential reintegration into society, the report indicated Strutz was “unlikely” to face
1
Among the many resources available to the Parole Board, a COMPAS assessment 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.”). In re Parole of Elias, 294 Mich. App. 507,
520; 811 NW2d 507 (2011). It is designed to “describe the offender’s risk and criminogenic
needs.” Id. The Board is not required to consider a COMPAS assessment, but may do so. Id. at
512-513.
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reentry social insolation based on his proposed, post-release support system. The report
characterized Strutz as being “unlikely” to face reentry cognitive behavioral problems, noting
that “[a] cognitive therapy program does not appear to be needed.” In addition, the report
indicated Strutz did not need vocational or educational treatment intervention, and that Strutz
was “likely to return to a relatively low[-]risk living environment” and was “likely” to have a
“stable lifestyle, residence, and adequate social ties,” given his reported support system. With
regard to mental health, the report indicated that Strutz did not indicate having any mental health
history for depression or suicidal tendencies. The report made no mention of Strutz’s recent
suicide attempt, despite the fact that it was generated shortly after the attempt.
As would be used to later calculate his parole-eligibility guidelines, see Mich Admin
Code, R 791.7716(3), Strutz, at some point during his incarceration, was assessed for property
risk and assaultive risk. The screening sheets are made up of a flow-chart-type grid that takes
into account a number of factors, including an inmate’s criminal history and institutional record.
The property risk screening sheet indicated a “low” property risk. Based on his underlying
murder conviction and “Serious Institutional Misconduct,” Strutz was classified as a “high”
assault risk.
In accordance with MCL 791.233e, Strutz’s parole-eligibility guidelines were calculated
in November 2013. The guidelines consider a panoply of factors, including, among others, the
offense for which the prisoner is sentenced, the circumstances of the underlying crime, prior
criminal history, any aggravating or mitigating factors, security classifications, institutional
behavior, age, and the property and assaultive risk factors noted above. Strutz’s final parole
guidelines score was + 4, which indicates a high probability of parole.
In December 2013, a member of the Board interviewed Strutz and prepared a Case
Summary Report (CSR). As will be discussed in more detail below, the phrase “Not used as
reason” was contained in parenthesis following several of the notations made in the CSR.
Strutz’s CSR noted that he had received misconduct tickets, including the ticket noted above for
possessing the razor blade, while he was incarcerated, but also noted that he had “satisfactory
block reports” during his incarceration. The CSR noted that Strutz had a history with alcohol
use, but that he had completed substance abuse programs during his incarceration, as recently as
August 2012. As it concerned Strutz’s mental health, the CSR noted “Adjustment Disorder” and
“Anti-Social Personality Disorder.” The CSR noted the COMPAS assessment’s indication that
Strutz was classified as a “low” risk for violence and recidivism.
As to Strutz’s plan for reintegration into society, the CSR remarked that Strutz showed
“suitable arrangements for work” and that he had a proposed job lined up after his release. Strutz
indicated that he would stay with his sister if released from prison.
In January 2014, Strutz underwent, at the behest of the Board, a Qualified Mental Health
Professional Evaluation (QMHPE). The evaluation acknowledged that Strutz had a previous
suicide attempt, but indicated that currently, Strutz “denied any thoughts or feelings of suicidal
ideation.” According to the QMHPE, Strutz’s earlier suicide attempt was a “desperate attempt to
cope with a situation he thought he could not handle.” The QMHPE assessed Strutz’s current
suicide risk level as “low.” As to substance abuse, the QMHPE revealed that Strutz indicated he
had completed substance abuse treatment during his incarceration.
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The author of the QMHPE report listed a “Clinical Assessment” of “Antisocial
Personality Disorder” for Strutz. Yet, the author stated “I do not see any current personality
traits or attitudes which would impact Mr. Strutz’s functioning or future adjustment to the
community. I also do not detect anything that would predispose him to continued criminal
behavior if released.” The evaluator noted that Strutz had accepted responsibility for his
offenses and was remorseful.
In addition, with regard to Strutz’s potential reentry into society, the author of the
QMHPE concluded, “I can find nothing clinically that will make it difficult for Mr. Strutz to
adjust back to the community if released at this point.” This was based in part on the fact that
Strutz had reported he had “a lot of family support to help him adjust back to society.” This help
included potential housing with Strutz’s sister.
On February 13, 2014, the Board issued its decision to grant Strutz parole, with a
projected release date of March 25, 2014. The Board concluded that “[r]easonable assurance
exists that [Strutz] will not become a menace to society or to the public safety . . . .” The
decision noted that Strutz had “satisfactory block reports” during his incarceration, was a high
school graduate/GED recipient, completed vocational training, completed substance abuse
programs and self-help programs, had suitable arrangements for work after his release, had
acceptable proposed living arrangements, and that he had the support of family and/or the
community.
The Macomb County Prosecutor appealed the Board’s decision to the circuit court in
March 2014. The circuit court reversed the grant of parole in a May 12, 2014 written opinion
and order. The court’s analysis began by concluding that the CSR and COMPAS assessment’s
indications that Strutz was categorized as a “low” risk for recidivism and violence were “clearly
contrary to known and established facts.” The court reasoned that the details of murder, Strutz’s
misconduct tickets, and his recent suicide attempt showed that he was at risk for violence and
recidivism.
Next, the court took issue with the COMPAS assessment’s conclusion indicating an
“unlikely” reentry isolation score for Strutz. According to the court, “[t]hese claims are belied
by the purported reason for his recent suicide attempt, his prior suicidal thoughts, [ ] his fixation
on his ex-wife” and his diagnosis of Adjustment Disorder and Anti-Social Personality Disorder.
Further, as to Strutz’s mental health, the court criticized the COMPAS assessment for classifying
Strutz as “unlikely” for suicidal thoughts and/or depression “despite the reasons for murdering
the victim, his prior suicidal thoughts and his recent suicide attempt.” According to the court,
Strutz “has an evident lack of appropriate coping skills.”
The court continued attacking the perceived accuracy of the COMPAS assessment with
regard to its conclusions about Strutz’s substance abuse. The court reasoned that any claim in
the COMPAS assessment that Strutz was “unlikely” to suffer from substance abuse was
contradicted by the fact that Strutz admitted to having consumed a significant volume of alcohol
before committing the murder, and by the fact that he had previously admitted to having a
substance abuse problem.
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“Even more distressing” to the circuit court was the CSR’s repeated indications that
certain negative attributes were noted in the report as being “Not used as reason.” According to
the court, the phrase “Not used as reason” demonstrated that the Board declined to consider some
of Strutz’s negative attributes and “attempted to write off important evidence contrary to its
decision.” Lastly, the court noted Strutz’s parole guidelines score—+4—and concluded that,
although the score indicated a high probability of parole, the score did not “mandate” that Strutz
be paroled.
The Board moved the circuit court for reconsideration and provided a written explanation
of its decision to grant Strutz parole. The explanation listed a number of factors the Board
considered and stated that the Board expressly considered the material that the circuit court
found to be “contrary” to the COMPAS assessment. The Board explained that it considered the
QMHPE and was aware of Strutz’s recent suicide attempt, but relied on the QMHPE’s
conclusion that Strutz was not presently suicidal. The Board further stated that it considered all
material noted in the CSR, including the matters labeled “Not used as reason,” which entry was
located next to both favorable and unfavorable information pertaining to Strutz. According to
the Board’s explanation, the “Not used as reason” notation was only visible when the CSR was
printed out, and was not visible when viewed electronically. The Board classified this as a
“software printout language glitch” of which Board members were aware.
The circuit court denied the Board’s motion for reconsideration on July 18, 2014. In a
written opinion and order, the circuit court first stated that it considered the Board’s written
explanation to be an “impermissible expansion of the record on appeal” and stated that it would
be “disregarded.” Next, the court reiterated its earlier conclusion that the COMPAS assessment
was “contrary to the known facts.” It also questioned the validity of the QMHPE, particularly
with regard to the conclusion that Strutz did not have any present suicidal ideation. In this
regard, the court noted that the QMHPE “consisted of a single interview of Strutz” and did not
entail any psychological testing. The court’s opinion concluded that Strutz’s recent suicide
attempt “establishes he continues to exhibit the same behaviors (violence and irrational thinking)
that led to his imprisonment.” This, reasoned the circuit court, made it “clear that Strutz has
neither been rehabilitated nor evolved during his incarceration.” Consequently, the court
concluded that the Board “did not have reasonable assurance based on consideration of the actual
facts and circumstances, including Strutz’[s] real mental and social attitudes, that he would not
become a menace to society and/or the public safety.” The court denied the motion for
reconsideration.
This Court initially denied the Board’s application for leave to appeal, In re Parole of
Steven J. Strutz, unpublished order of the Court of Appeals, entered September 5, 2014 (Docket
No. 323101), but our Supreme Court remanded the matter to this Court for consideration as on
leave granted as to both Strutz and the Board, In re Parole of Steven J. Strutz, 497 Mich. 980; 860
NW2d 633 (2015).
II. ANALYSIS
A. STANDARD OF REVIEW
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This Court reviews the decision of the Board to grant parole for an abuse of discretion.
In re Parole of Elias, 294 Mich. App. 507, 538; 811 NW2d 541 (2011). The prosecutor, as the
party challenging the Board’s grant of parole, “has the burden to 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.” Id. (citation and quotation marks
omitted). The Board’s decision represents an abuse of discretion when it is outside the range and
reasonable and principled outcomes. Id. “[A] reviewing court may not substitute its judgment
for that of the Board.” Id. at 538-539.
B. APPLICABLE LAW
“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; alteration in original).
For instance, “[s]tatutorily mandated parole guidelines form the backbone of the parole-decision
process.” Elias, 294 Mich. App. at 511. The guidelines are designed to consider all relevant facts
and circumstances, and “are an attempt to quantify the applicable factors that should be
considered in a parole decision and are intended to inject more objectivity and uniformity into
the process in order to minimize recidivism and decisions based on improper considerations such
as race.” Id. (citation and quotation marks omitted). “The guideline factors are separated into
eight sections, each with a list of subfactors to be scored and instructions on the point value to be
assigned.” Haeger, 294 Mich. App. at 554.2 “When scoring the parole guidelines, the Board must
consider ‘all relevant facts and circumstances, including the prisoner’s probability of parole as
determined by the parole guidelines . . . and any crime victim’s statement . . . .’ ” Elias, 294
Mich. App. at 515, quoting Mich Admin Code, R 791.7715(1). “The aggregated score is ‘used to
fix a probability of parole determination for each individual on the basis of a guidelines score.
Prisoners are categorized under the guidelines as having a high, average, or low probability of
parole.’ ” Haeger, 294 Mich. App. at 554, quoting Elias, 294 Mich. App. at 518 (citation omitted).
Here, Strutz’s parole guidelines score was +4, which placed him in the category of a high-
probability of parole. See Elias, 294 Mich. App. at 518 (a score of +3 or higher places a prisoner
in the high-probability category). With a “high-probability” score, “the Board was required to
grant parole absent substantial and compelling reasons to depart from that decision.” Elias, 294
Mich. App. at 539.
2
As described in more detail in Elias, 294 Mich. App. at 512-513, the Legislature, in MCL
791.233e(2) has set forth mandatory factors to be considered, including: (a) the offense for which
the prisoner was incarcerated; (b) the prisoner’s institutional program performance; (c) the
prisoner’s institutional conduct; (d) the prisoner’s prior criminal record; and (e) other relevant
factors as determined by the Department of Corrections. In addition, the Legislature has set forth
permissive factors for consideration in MCL 791.233e(3), such as: (a) the prisoner’s statistical
risk screening—which includes assessments such as a COMPAS assessment; and (b) the
prisoner’s age.
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In addition to the restrictions imposed on the Board’s authority by the guidelines, the
Legislature imposed the following constraints on the Board’s authority:
the Legislature forbade the Board from releasing a prisoner who has been
incarcerated for two or more years unless that prisoner has earned a general
education development certificate GED. MCL 791.233(1)(f). The Board may not
grant parole unless it “has satisfactory evidence that arrangements have been
made for . . . employment . . ., for the prisoner’s education, or for the prisoner’s
care if the prisoner is mentally or physically ill or incapacitated.” MCL
791.233(1)(e). Most importantly, “[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.” MCL
791.233(1)(a). [Elias, 294 Mich. App. at 522.]
C. THE PAROLE BOARD DID NOT ABUSE ITS DISCRETION3
In light of the pertinent factors, we hold that the prosecution did not meets its burden of
establishing that the Board clearly abused its discretion when it granted parole to Strutz, and the
circuit court impermissibly substituted its judgment for that of the Board. See Elias, 294 Mich
App at 538-539. As an initial matter, we note that Strutz’s guidelines score was +4, which
required the Board to grant parole absent substantial and compelling reasons to deny parole.
MCL 791.233e(6); Elias, 294 Mich. App. at 539. The Board did not articulate any substantial and
compelling reasons that would enable it to deny parole in spite of Strutz’s guidelines score, and
such reasons do not appear to exist in the record. The circuit’s court’s decision lacks an
acknowledgment of the effect of Strutz’s high-probability score, other than stating that a high-
probability score “does not mandate that he actually be paroled.” While the court was correct
that parole was not unequivocally mandated, the court gave no consideration to the fact that
Strutz’s score nevertheless required the Board to grant parole, absent substantial and compelling
reasons. Elias, 294 Mich. App. at 539. The circuit court did not articulate any substantial and
compelling reasons; rather, as will be discussed, the circuit court simply identified conflicting
information and concluded that the Board abused its discretion. This was improper.
3
Strutz argues that the issues raised before this Court were not properly preserved by the
prosecution in the administrative agency proceedings. We do not interpret MCR 7.118 to
preclude the prosecution from raising before the circuit court arguments that were not raised
before the Board at the parole hearing. Further, a party generally need not take exception to a
decision-makers’ factual findings or ultimate decision. MCR 2.517(A)(7). Finally, even if these
issues are not preserved, we exercise our discretion to nevertheless address them as necessary for
the proper determination of the case and as questions of law for which the facts necessary for the
resolution have been presented. See Smith v Foerster-Bolser Constr, Inc, 269 Mich. App. 424,
427; 711 NW2d 421 (2006).
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Turning back to the decision of the Board, nothing in the record gives rise to any
allegation that the Board failed to follow statutory or regulatory procedures in evaluating Strutz
for parole. Rather, the record supports that the Board followed the requisite procedures and
regulations in evaluating Strutz’s parole eligibility. For instance, Strutz underwent an interview
with a Board member and the resulting CSR noted Strutz’s institutional record and all of his
misconduct tickets—including the ticket for possessing a razor blade—but noted that he had
“satisfactory block reports” during his incarceration. The CSR also noted that, despite Strutz’s
past alcohol use, he had completed substance abuse assessments while incarcerated. The CSR
also concluded that Strutz had suitable placement upon his release, as well as suitable
arrangements for employment. In addition, the CSR noted the COMPAS assessment’s
conclusion that Strutz posed a “low” risk for violence and recidivism.
The circuit court was highly critical of the CSR, particularly because the phrase “Not
used as reason” appeared several times in the report. On reconsideration, the circuit court
refused to consider the Board’s written explanation, which accounted for the use of the phrase.
By refusing to consider the Board’s written explanation—instead assuming that the Board
intentionally disregarded record evidence—the circuit court erred. Pursuant to MCR 7.114(D), a
motion for reconsideration of a circuit court’s appellate decision is governed by MCR 2.119(F),
not the subsections of MCR 7.118(H) cited by the circuit court. Under MCR 2.119(F), a trial
court ordinarily “has discretion on a motion for reconsideration to decline to consider new legal
theories or evidence that could have been presented when the motion was initially decided.”
Yoost v Caspari, 295 Mich. App. 209, 220; 813 NW2d 783 (2012) (citations omitted). However,
to meaningfully review a parole decision, it is vital that the circuit court understand what
evidence the Board considered. See MCR 7.118(H)(1)(a) (“The record on appeal shall consist of
the prisoner’s central office file at the [DOC] and any other documents considered by the parole
board in reaching its decision.”) (emphasis added); Elias, 294 Mich. App. at 522-523 (explaining
that the Board is required to provide a written explanation of its parole decision that is sufficient
to permit meaningful appellate review). The reviewing court must not merely assume that the
Board ignored record evidence. Elias, 294 Mich. App. at 547.4
Moreover, even ignoring the Board’s written explanation, we disagree with the circuit
court’s assessment that the Board’s use of the phrase “Not used as reason”—which appears at the
end of 14 paragraphs in the Case Summary Report—was evidence that the Board intentionally
disregarded negative information about Strutz. Although “(Not used as reason)” follows
paragraphs containing negative information about Strutz, it also follows paragraphs containing
positive information about him. For example, the “(Not used as reason)” notation follows
paragraphs indicating that Strutz was honorably discharged after serving in the Marine Corps,
had no criminal record prior to the offenses for which he was imprisoned, had a low risk for
violence and recidivism, per the COMPAS assessment, had completed substance abuse programs
4
Instead, if the circuit court, “after surveying the explanation given and relevant record, cannot
discern . . . the basis of the parole board’s decision,” the court can enter an order of remand for
the Board to explain its decision. Glover v Parole Bd, 460 Mich. 511, 525-526 n 22; 596 NW2d
598 (1999).
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in prison, had arranged for employment after parole, and had a sister willing to house him and
offer him financial support. Thus, the circuit court’s criticism—that the Board intentionally
ignored information that was contrary to its decision—is not supported by the entirety of the
CSR.
In addition, we find nothing amiss about the Board’s reliance on, or procedures employed
in conducting, the COMPAS assessment prepared in this case. The COMPAS assessment
supported the Board’s decision. As noted, a COMPAS assessment is one of the statistical risk
assessments upon which the Board may rely. The COMPAS assessment indicated that Strutz
had a “low” risk for violence and recidivism, that he was “unlikely” to have a substance abuse
problem, and that he was “unlikely” to encounter social integration problems or behavioral
problems upon reentry into society. The assessment noted that Strutz would have a positive
support system after his release, would have adequate housing, and that he did not need
vocational or educational training.
The circuit court was highly critical of the COMPAS assessment, doubting its
conclusions based on certain contradictory information, such as the heinous nature of Strutz’s
sentencing offense, past substance abuse, recent suicide attempt, and the court’s description of
Strutz’s “fixation” on his ex-wife.5 However, in doing so, the circuit court: (a) came to its own
conclusions about Strutz, based on the presence of conflicting information; and (b) relied too
heavily on static information, such as Strutz’s past substance abuse and the sentencing offense.
As to conflicting information, “this Court has repeatedly determined that there is no abuse of
discretion when a court or a fact-finder is faced with conflicting information and makes a
reasonable and principled decision regarding which side to believe.” Elias, 294 Mich. App. at
546. See also Haeger, 294 Mich. App. at 578-579 (holding that the Board’s decision to resolve
conflicting evidence does not amount to an abuse of discretion). Here, the Board had before it, at
worst, conflicting information about Strutz’s capacity for violence and recidivism, and found
that, in spite of this conflicting evidence, Strutz’s risk for violence and recidivism was low. This
was not an abuse of discretion. Indeed, the CSR reached the same conclusion about the risk
Strutz posed, and the QMHPE concluded, after evaluating Strutz and considering his suicide
attempt, that he was a “low” risk for suicide. The QMHPE evaluator also noted the absence of
“anything that would predispose [Strutz] to continued criminal behavior if released.” Although
the circuit court was understandably concerned with Strutz’s suicide attempt, the QMHPE, which
was authored after Strutz’s suicide attempt, concluded that Strutz was a low suicide risk. It is the
Board’s role to weigh this conflicting information.
Furthermore, the circuit court’s criticisms of the COMPAS assessment were narrowly—
and unfairly—focused on static information, such as the nature of the offense and Strutz’s past
alcohol abuse. In Elias, 294 Mich. App. at 544-545, this Court cautioned against reliance on static
factors, such as the nature of the offense, and cautioned against ignoring dynamic, or changing
factors. Indeed, while the Board is to consider the prisoner’s past offenses, it “must also look to
5
Strutz’s “fixation” on his ex-wife does not appear as a current concern in any assessments,
interviews, or evaluations performed on Strutz as part of the parole process.
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the prisoner’s rehabilitation and evolution throughout his or her incarceration.” Id. at 544
(emphasis added). Here, while it is undisputed that Strutz had past struggles with alcohol abuse,
all of the evidence before the Board indicated that he was a low risk for substance abuse in the
future, and that he had completed substance abuse programs during his incarceration. The circuit
court ignored this information, and Strutz’s past substance abuse issues do not form the basis for
finding an abuse of discretion on the part of the Board.
As to the heinous nature of Strutz’s offense, that has never been, nor ever will be, in
doubt. However, as did the Court in Elias, we note that the nature of the offense was taken into
account in the scoring of Strutz’s parole guidelines. See Elias, 294 Mich. App. at 545. In
addition, the offense was already taken into account when his sentencing guidelines were
calculated, and the nature of the offense contributed to the minimum sentence in this case. See
id. at 545-546. By the time the Board considered him for parole, Strutz had already completed
serving his minimum sentence, which is what brought him before the Board in the first instance.
See id., citing MCL 791.233(1)(b) and MCL 791.234(1). The circuit court’s written opinion and
order was clearly focused on the heinous nature of the offense, stating that “[t]he severity of this
crime can not [sic] be overstated.” Again, while we agree that Strutz’s sentencing offense was
reprehensible, the circuit court’s repeated references to the offense, including referencing the
offense as support for its reasons that the COMPAS was incorrect and that Strutz had not
changed during his incarceration, despite evidence suggesting that Strutz had made changes and
was a low risk for recidivism and violence, was erroneous. See id.
Lastly, with regard to the COMPAS assessment, the circuit court doubted the efficacy of
the assessment because it failed to take into account Strutz’s recent suicide attempt. However,
the suicide attempt was documented in other material that the Board considered. The Board’s
written explanation expressly acknowledged this shortcoming in the COMPAS assessment, but it
also indicated that the Board was well aware of Strutz’s suicide attempt when deciding whether
to grant him parole. The Board—per the written explanation of its decision—relied on the
QMHPE, which it was entitled to do, in making its decision. Given the information in the
QMHPE, which found that Strutz was not presently suicidal, we cannot conclude that the Board
abused its discretion in resolving this conflicting information. See Haeger, 294 Mich. App. at
579.
Turning in more detail to the QMHPE, we note that the January 2014 QMHPE also
supports the Board’s decision to grant parole in this case. The QMHPE expressly found that
Strutz’s current suicide risk was low and that he denied any thoughts or feelings of suicidal
ideation. The QMHPE acknowledged Strutz’s Antisocial Personality Disorder, but nevertheless
concluded that the disorder—or any other personality traits—would not prevent him from
adjusting to life outside of prison, and that he did not have any traits suggesting that he would be
predisposed to continued criminal behavior. The report was positive in regard to Strutz’s ability
to function outside of prison, noting the strong family support and potential housing with his
sister.
In this regard, we disagree with the circuit court’s criticisms—levied in the written
opinion and order denying reconsideration—of the QMHPE. The court criticized the report’s
finding that Strutz lacked present suicidal ideation because it was based only on a “single
interview” of Strutz. The circuit court faulted the QMHPE for not conducting any psychological
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testing of Strutz before determining that he had developed adequate coping skills. However, the
circuit court pointed to no statutory or regulatory authority for the conclusion that psychological
testing was necessary in this particular case, nor does any exist. See Mich Admin Code, R
791.7715(5) (requiring a psychological or psychiatric evaluation under certain circumstances not
present in this case); Haeger, 294 Mich. App. at 577 (same). Furthermore, this Court has
repeatedly stated that evaluating a prisoner’s mental and social attitude involves a subjective
determination on the part of the Board, for which the guidelines cannot account. See, e.g., Elias,
294 Mich. App. at 543. Here, the QMHPE provided support for the Board’s conclusions, and
does not represent an abuse of discretion on the part of the Board. The circuit court’s own
conclusions about Strutz’s mental health represent another instance of the court improperly
substituting its judgment for that of the Board. See id. at 547-548 (“The circuit court substituted
its judgment regarding the record evidence for that of the legislatively designated executive
agency.”).
Finally, as further support for the conclusion that the Board did not abuse its discretion,
we note the repeated instances in the record detailing Strutz’s family support, post-release living
accommodations, and post-release prospects of employment. These were positive attributes
listed in the COMPAS assessment that were never disputed or contradicted. Such factors were
appropriate for the Board to consider in determining Strutz’s readiness for release. See Mich
Admin Code, R 791.7715(2)(c). The record also demonstrates that Strutz accepted responsibility
for his past behavior, which is a factor appropriately considered by the Board in evaluating his
personal history and growth. See Mich Admin Code, R 791.7715(2)(d).
In sum, nothing in the record indicates that the Board abused its discretion. Although
there certainly was cause for concern in this case given some of Strutz’s actions, the Board acted
in accordance with all pertinent statutes and regulations. In addition, the Board appropriately
weighed conflicting information, as it is charged with doing. Because of this, and because of the
Board’s role in the parole process, we find no abuse of discretion by the Board and conclude that
the circuit court invaded the province of the Board and substituted its judgment for that of the
Board. Accordingly, we reverse the decision of the circuit court and remand for reinstatement of
the order granting parole to Strutz.
Of note, two years have passed since the Board made its decision. As indicated in the
Parole Board Notice of Decision, “Misconduct, security reclassification or other adverse
information may result in suspension of this parole action.” As such, the Board remains free to
take into account Strutz’s conduct over the past two years when deciding whether to follow-
through on its grant of parole.
Reversed and remanded for reinstatement of the order granting parole. We do not retain
jurisdiction.
/s/ David H. Sawyer
/s/ Jane M. Beckering
/s/ Mark T. Boonstra
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