People v. Allen
| Decision Date | 22 November 2011 |
| Docket Number | No. 299267,299267 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. REGINA MARIE ALLEN, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
APPROVED FOR PUBLICATION January 24, 2012 9:00 A.M.
Oakland Circuit Court
Before: M. J. KELLY, P.J., and SAAD and O'CONNELL, JJ.
Defendant Regina Marie Allen appeals by delayed leave granted the trial court's order requiring her to pay restitution. After Allen pleaded guilty to attempting to commit prescription fraud, see MCL 333.7407a(1); MCL 333.7407(1)(c), the trial court sentenced Allen under a sentencing agreement to serve one year of probation and ordered her to pay $5,753.88 in restitution to Blue Cross Blue Shield. The sole question on appeal is whether the trial court erred when it found that Blue Cross had suffered a loss as a result of Allen's course of criminal conduct. Because we conclude that the trial court did not clearly err when it found that Blue Cross suffered such a loss, we affirm the trial court's order of restitution.
In November 2009, Allen attempted to purchase a controlled substance from a pharmacy using a fraudulent prescription. The prescription contained a legitimate Blue Cross contract number. The pharmacy alerted Blue Cross to the attempted purchase later that same month.
At the time, Allen was a customer service representative with a Blue Cross vendor, Allegra Direct. Through her employment, Allen had access to two major databases. These databases contained private information for Blue Cross subscribers; the information included the subscribers' contract numbers, Social Security numbers, dates of birth, home addresses, and physician records.
Nina Burnett testified at Allen's restitution hearing that she was a field investigator with Blue Cross and that her department investigates fraud. Burnett investigated Allen's attempt topurchase the controlled substance. Burnett determined that Allen used an actual Blue Cross subscriber's name on the fraudulent prescription. As a result, Burnett feared that Allen might have defrauded Blue Cross in prior incidents. Indeed, after she learned that Allen had access to protected Blue Cross information, Burnett extended the investigation to determine whether Allen misused confidential information. Burnett stated that Blue Cross had a legal obligation to investigate whether its subscribers' health information had been compromised.
Burnett investigated whether Blue Cross had paid for similar prescriptions written by the same physician that Allen listed on the fraudulent prescription. As part of her investigation, Burnett met with the physician's staff, obtained video from various pharmacies, and examined signature logs. Additionally, Blue Cross' information technology department investigated Allen's use of the Blue Cross subscriber database. Burnett was not able to definitively connect Allen to any other fraudulent prescriptions.
Burnett testified that her investigation into Allen's fraudulent prescription was significantly more time-consuming and detailed than other "ordinary" investigations because Allen had access to patients' confidential information. Burnett stated that Blue Cross spent $5,738 to investigate Allen's fraud and whether she misused subscriber information. She said that she determined this amount by multiplying an hourly rate of $130.77, which was determined by dividing her department's annual budget by the number of hours the department's investigators spent investigating claims, and multiplying that by the 44 hours that she spent working on the investigation. She stated that this rate did not include the cost of assistance by other departments; therefore, the research by the information technology staff was not included in the hourly rate.
Burnett testified that she is a salaried employee and would have been paid the same amount of money without regard to Allen's attempted fraud. Burnett nevertheless stated that Blue Cross suffered a loss because the money that it otherwise spent investigating Allen's fraud could have been spent on claims or controlling premiums. Burnett explained that Blue Cross generally attempts to recoup money from the perpetrators of fraud.
The trial court ultimately determined that Blue Cross was entitled to the requested restitution and ordered Allen to pay $5,753.88 to Blue Cross as part of her sentence.
A. STANDARD OF REVIEW
Allen argues on appeal that the trial court erred in ordering her to pay Blue Cross for the costs associated with investigating her fraud. Trial courts do not have discretion to order a convicted defendant to pay restitution; they must order the defendant to pay restitution and the amount must fully compensate the defendant's victims. See People v Gahan, 456 Mich 264, 270n 6; 571 NW2d 503 (1997).1 Whether and to what extent a loss must be compensated is a matter of statutory interpretation; and this Court reviews de novo the proper interpretation of statutes. People v Bemer, 286 Mich App 26, 31; 777 NW2d 464 (2009). However, this Court reviews the findings underlying a trial court's restitution order for clear error. MCR 2.613(C). A finding is clearly erroneous if this Court is left with the definite and firm conviction that a mistake has been made. People v Atkins, 259 Mich App 545, 564; 675 NW2d 863 (2003).
Article 1, § 24 of the Michigan Constitution provides that crime victims have the "right to restitution." Const 1963, art 1, § 24. Additionally, with the Crime Victim's Rights Act, MCL 780.751 et seq., the Legislature required trial courts to...
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