People v. Gubachy

• Decision Date: 14 November 2006
• Docket Number: Docket No. 262550.
• Citation: 272 Mich. App. 706,728 N.W.2d 891
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nathan Daniel GUBACHY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

728 N.W.2d 891

272 Mich. App. 706

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nathan Daniel GUBACHY, Defendant-Appellant.

Docket No. 262550.

Court of Appeals of Michigan.

Submitted November 7, 2006, at Lansing.

Decided November 14, 2006, at 9:05 a.m.

Released for Publication February 28, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Senior Assistant Prosecuting Attorney, for the people.

Jon F. Hummel, East Lansing, for the defendant.

Before: MURPHY, P.J., and METER and DAVIS, JJ.

DAVIS, J.

Defendant appeals by delayed leave granted a restitution order requiring him to reimburse $10,098.93 to the victim in this case. We affirm.

Defendant pleaded guilty of breaking and entering a building with the intent to commit a larceny, MCL 750.110; unlawfully driving away an automobile, MCL 750.413; escape from lawful custody, MCL 750.197a; and malicious destruction of police property, MCL 750.377b. Defendant had been employed by Wilbur Plumbing. On April 12, 2004, shortly after defendant's employment was terminated, he and another individual entered Wilbur Plumbing without permission and drove three trucks away from the premises. They returned one truck after removing tools and other equipment from it. Police recovered the other two trucks and some tools and equipment. George Wilbur, the owner of Wilbur Plumbing, conducted an inventory and testified that property worth a total of $7,902.28 was missing. He also testified that Wilbur Plumbing incurred total labor expenses of $2,746.65 taking inventory and reequipping the trucks as a result of the theft. The trial court reasoned that the labor was a "legitimate expense for a victim to recover," but reduced the amount of missing property by $550 because Wilbur failed to substantiate the value of certain items. Defendant appeals the resulting order of restitution.

We review a trial court's factual findings for clear error. MCR 2.613(C). We generally review for an abuse of discretion an order of restitution. In re McEvoy, 267 Mich.App. 55, 59, 704 N.W.2d 78 (2005). However, "[w]hen the question of restitution involves a matter of statutory interpretation, review de novo applies." Id. Statutory interpretation is a question of law that we review de novo. Id.

Defendant first contends that there was insufficient evidence to support the restitution award for the lost property. We disagree.

Crime victims have a constitutional right to restitution. Const 1963, art 1, § 24. Black's Law Dictionary (7th ed) defines "restitution" as "[c]ompensation or reparation for the loss caused to another." Further, crime victims have a statutory right to restitution under the Crime Victim's Rights Act (CVRA), MCL 780.751 et seq. The CVRA provides that if a felony (or a misdemeanor punishable by imprisonment for more than one year) results in the loss of a victim's property, the trial court may order the defendant to pay to the victim, as restitution, the value of the property that was lost. MCL 780.766(3). Restitution encompasses only those losses that are easily ascertained and are a direct result of a defendant's criminal conduct. People v. Orweller, 197 Mich.App. 136, 140, 494 N.W.2d 753 (1992). The prosecution must prove the amount of the victim's loss by a preponderance of the evidence. MCL 780.767(4).

Here defendant admitted that he stole three trucks and that he stole and sold copper pipefittings worth $1,400. He denied stealing tools, but he admitted that his codefendant took some tools and put them into defendant's storage locker. Wilbur Plumbing did not keep a written inventory for each truck, but it had a policy of continually maintaining the trucks with certain known equipment on board, along with a policy for reporting anything missing. Nothing was reported missing in the days leading up to the crime. The prosecution therefore presented sufficient evidence to establish that the trucks were fully equipped before April 12, 2004, and that anything missing after April 12, 2004, was a direct result of defendant's criminal conduct. Defendant admitted the theft of a number of items and the value of some of them. Wilbur presented invoices to substantiate the value of most items, and the trial court disallowed the value of any items for which Wilbur did not provide documentation. The trial court's finding that the prosecution proved by preponderance of the evidence a property loss of $7,352.28 was not clearly erroneous, so an order of restitution in that amount was not an abuse of discretion. MCL 780.766(3).

Defendant next argues that the trial court was not authorized to order reimbursement of the value of Wilbur Plumbing's labor costs incurred in determining the value of the lost property and in replacing the lost property. We disagree.

The goal of statutory interpretation is to determine and give effect to the intent of the Legislature, with the presumption that unambiguous language should be enforced as written. Gladych v. New Family Homes, Inc., 468 Mich. 594, 597, 664 N.W.2d 705 (2003). "Statutory language should be construed reasonably, keeping in mind the purpose of the act." In re McEvoy, supra at 60, 704 N.W.2d 78. In other words, the Court must consider the object of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the statute's purpose. People v. Lawrence, 246 Mich.App. 260, 265, 632 N.W.2d 156 (2001). Additionally, the Code of Criminal Procedure, which also contains restitution provisions, is remedial in character and should be liberally construed to effectuate its intent. MCL 760.2. The CVRA "was enacted to enable victims to be compensated fairly for their suffering at the hands of convicted offenders." People v. Crigler, 244 Mich.App. 420, 423, 625 N.W.2d 424 (2001).

At the time defendant was sentenced, MCL 780.766 provided¹ in relevant part:

(2) Except as provided in subsection (8), when sentencing a defendant convicted of a crime, the court shall order, in addition to or in lieu of any other penalty authorized by law or in addition to any other penalty required by law, that the defendant make full restitution to any victim of the defendant's course of conduct that gives rise to the conviction or to the victim's estate.

(3) If a crime results in damage to or loss or destruction of property of a victim of the crime or results in the seizure or impoundment of property of a victim of the crime, the order of restitution may require that the defendant do 1 or more of the following, as applicable:

(a) Return the property to the owner of the property or to a person designated by the owner.

(b) If return of the property under subdivision (a) is impossible, impractical, or inadequate, pay an amount equal to the greater of subparagraph (i) or (ii), less the value, determined as of the date the property is returned, of that property or any part of the property that is returned:

(i) The value of the property on the date of the damage, loss, or destruction.

(ii) The value of the property on the date of sentencing.

(c) Pay the costs of the seizure or impoundment, or both.

There are two statutes dealing with restitution. MCL 769.1a(2) and (3), in the Code of Criminal Procedure, are identical to MCL 780.766(2) and (3), except that MCL 769.1a discusses a "felony, misdemeanor, or ordinance violation" instead of a "crime" and "cost" instead of "costs." MCL 769.1a has not been amended since defendant's sentencing. Although Michigan courts once were required to consider a defendant's ability to pay restitution, under MCL 780.767(1), "[i]n determining the amount of restitution to order under [MCL 780.766], the court shall consider the amount of the loss sustained by any victim as a result of the offense." The "amount of the loss sustained" is now the only factor to be considered. Crigler, supra at 428, 625 N.W.2d 424.

We appreciate defendant's argument concerning expressio unius est exclusio alterius. See Bradley v. Saranac Community Schools Bd. of Ed., 455 Mich. 285, 298, 565 N.W.2d 650 (1997) ("This Court recognizes the maxim expressio unius est exclusio alterius; that the express mention in a statute of one thing implies the exclusion of other similar things."). However, we do not believe it applies here. Defendant correctly directs our attention to the fact that, because neither seizure nor impoundment is at issue, MCL 780.766(3) provides an explicit list of exactly two remedies. If viewed in isolation, this would logically imply that the Legislature intended those two remedies to be the only remedies available. We also appreciate that federal court interpretations of the Victim and Witness Protection Act (VWPA), specifically 18 USC 3663, are considered persuasive by our Supreme Court. People v. Grant, 455 Mich. 221, 243 n. 30, 565 N.W.2d 389 (1997). The federal courts limit restitution under the VWPA...