People v. Grant
| Decision Date | 15 July 1997 |
| Docket Number | Docket No. 103165,No. 3,3 |
| Citation | 455 Mich. 221,565 N.W.2d 389 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Dennis James GRANT, Defendant-Appellee. Calendar |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and T. Lynn Hopkins, Assistant Prosecuting Attorney, Grand Rapids, for People.
Thomas, DeGrood, Witenoff & Hoffman, P.C. by Brian R. Sullivan, Southfield, for defendant-appellee.
Michael Thomas, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Grand Rapids, amicus curiae for Prosecuting Attorneys Association of Michigan.
In the present case, the issue is whether the trial court's failure to make express findings with respect to the statutory factors regarding restitution set forth in § 17, M.C.L § 780.767(1),(4); M.S.A. § 28.1287(767)(1),(4) 1 was error that invalidates that portion of the judgment directing restitution. The defendant pleaded guilty of conspiring to utter and publish 2 and of being an habitual offender, 3 second offense, in exchange for an agreement to dismiss three counts of uttering and publishing and an habitual offender, fourth offense. The sentencing agreement also included a five-year maximum-minimum prison sentence and restitution to be "set by the Court." The trial court ordered restitution for $175,000.
The Court of Appeals vacated the portion of the judgment order of restitution for $175,000, and remanded for reconsideration. The appellate court found that the trial court erred because it failed to expressly consider the statutorily enumerated factors listed in § 17, specifically, the financial resources and earning ability of the defendant, the financial needs of the defendant and his family, or other relevant factors, such as defendant's assertion that he played a limited role in the offense. 210 Mich.App. 467, 471, 534 N.W.2d 149 (1995). 4
We hold that the trial court did not err in failing to hold a separate hearing or make an express determination regarding the defendant's ability to pay under the Crime Victim's Rights Act. In reaching its decision, the trial court implicitly considered both the amount of restitution owed and the defendant's ability to pay within the statutory requirements. The decision of the Court of Appeals is reversed and the order of restitution reinstated.
The defendant was charged with four counts of conspiracy to commit uttering and publishing 5 and with being a second felony offender. At the plea hearing, the prosecutor agreed to 1) dismiss three counts of uttering and publishing and the supplemental charge, 2) not charge on other similar offenses if defendant cooperated to clear up the other offenses, and 3) recommend a five-year maximum-minimum sentence. The plea agreement also contained an explicit provision that the defendant would be "responsible for restitution as set by the Court." Both defendant and defense counsel affirmed that these terms constituted the complete agreement. The defendant admitted giving various persons rides to the store or bank to defraud them of their money and that he had received a portion of the defrauded funds. He also admitted an earlier conviction for uttering and publishing. After finding the plea was voluntary, the court accepted the plea agreement.
At the plea hearing, the defendant requested a bond reduction so that he could be released pending sentencing. At that time, defense counsel stated that Mr. Grant had six children, had lived in the area for twenty-three years, had family in the area, and had been steadily employed for the past two and a half years. The prosecutor then stated that the amount of money in this case reached "into the six figures." In response, the defense attorney asserted that the other conspirators had been involved in the conspiracy for a longer time and that defendant's involvement was limited. Defense counsel did agree that hundreds of thousands of dollars had been taken but, he claimed, not by defendant. The judge denied the bond reduction motion.
At the sentencing hearing, the judge indicated that he had read the presentence report and the recommendation that, in addition to a term of incarceration, the defendant also pay restitution of $175,000. The report confirmed that the forty-one-year-old defendant had a high school education, had no physical or mental disabilities, and had been previously employed. It related that defendant was not a drug user, was not married, and admitted the paternity of five children. 6 The report further noted that defendant was on parole supervision from a previous uttering and publishing conviction when the instant offense was committed, and that the offense was a major check-cashing scheme. A Grand Rapids police department investigation had determined that defendant was a primary player in an elaborate check-cashing scheme that used police scanners and various runners to perpetrate the fraud, causing a loss to the victims in excess of $175,000.
The court asked defense counsel if he and defendant had received the report. Defense counsel replied that both he and defendant had read and reviewed the contents. Both defendant and counsel were given an opportunity to comment on the contents of the report. Counsel claimed that there was no evidence to support the contention that defendant was one of the main players in the check-cashing scheme and that the defendant only provided rides to three persons to facilitate the check-cashing operation. He stated that the case against defendant did not contain evidence of $175,000 worth of cashed checks. Counsel indicated that the other matters in the report were accurate and that there were no other objections. The defendant agreed with his attorney and made no further comment on the record. The court acknowledged receipt of the presentence report, the defendant's statement, which according to the presentence report was the defendant's written version of the offense (this statement was not received as part of the record), and various letters written on the defendant's behalf. 7 The judge stated that he had considered these matters before sentencing and that he had read the presentence report. In accordance with the agreed prosecutorial recommendation, defendant was sentenced to a term of five to twenty-one years, and restitution was imposed as a condition of parole for $175,000 to be paid jointly and severally with other codefendants. Defendant made no objection to the imposition of restitution or the amount.
The defendant did not assert at any time that he was unable to pay restitution; rather, defense counsel's remarks at sentencing were directed toward the defendant's alleged limited participation in the conspiracy. The Court of Appeals found that counsel's comments were "insufficient to require the trial court to conduct [a separate] evidentiary hearing." 8 Moreover, because defendant did not challenge the accuracy of the restitution figure, offer evidence in support of any other figure, or specifically request an additional hearing on the restitution order, the Court opined that, given the procedural default, "the trial court was not required to conduct a hearing for the purpose of fulfilling the mandates of [§ 17] M.C.L. § 780.767(1); M.S.A. § 28.1287(767)(1)." 210 Mich.App. at 471, 534 N.W.2d 149.
However, the Court of Appeals agreed with defendant that, despite the fact that no separate hearing was required, the trial court's determination of restitution "fell short of the statutory requirements," apparently because the trial court did not expressly consider the factors set forth in the statute, that is, the "defendant's ability to pay, the financial needs of defendant and his family, or any other nonenumerated but relevant factors, such as defendant's claimed limited role in the offense." Id. The Court of Appeals vacated the order of restitution and remanded to the trial court for reconsideration. The people sought and we granted leave to appeal. 450 Mich. 964, 548 N.W.2d 633 (1996).
Restitution in Michigan is afforded not only by statute, but also by Const. 1963, art. 1, § 24, which entitles victims of crime to restitution relief. 9 In People v. Peters, 449 Mich. 515, 523-524, 537 N.W.2d 160 (1995), we observed:
The Michigan Crime Victim's Rights Act was enacted in 1985 in response to growing recognition of the concerns of crime victims. The act codifies a crime victim's right to restitution, while leaving to the discretion of the sentencing judge the form the restitution will take....
In 1988, after the enactment of the Crime Victim's Rights Act, Michigan's Constitution was amended to further enumerate the rights of crime victims. These laws underscore the rights of crime victims and the compensatory nature of restitution in Michigan.
The compensatory nature of restitution is, therefore, specifically designed to allow crime victims to recoup losses suffered as a result of criminal conduct. Id. at 523, 537 N.W.2d 160. 10
When restitution is ordered by the court either at the judge's discretion or as part of a plea agreement, 11 M.C.L. § 780.767(1); M.S.A. § 28.1287(767)(1), subsection 17(1) requires:
The court, in determining whether to order restitution under section 16 12 and the amount of that restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources and earning ability of the defendant, the financial needs of the defendant and the defendant's dependents, and such other factors as the court considers appropriate.[ 13
The statute involves two separate inquiries: first, a determination of the amount of the victim's loss and, second, an evaluation of the factors that would affect ...
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