People v. Mckinley

• Decision Date: 26 June 2014
• Docket Number: Docket No. 147391.,Calendar No. 4.
• Citation: 852 N.W.2d 770,496 Mich. 410
• Parties: PEOPLE v. McKINLEY.
• Court: Michigan Supreme Court

496 Mich. 410

852 N.W.2d 770

PEOPLE

v.McKINLEY.

Docket No. 147391.

Calendar No. 4.

Supreme Court of Michigan.

Argued April 3, 2014.

Decided June 26, 2014.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, David E. Gilbert, Prosecuting Attorney, and Marc Crotteau, Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office (by Christopher M. Smith) for defendant.

Kym L. Worthy and Timothy A. Baughman, Detroit, for the people.

McCORMACK, J.

In this case, we decide whether a trial court's restitution award that is based solely on uncharged conduct ¹ may be sustained. We conclude that it cannot. We therefore overrule our decision in People v. Gahan, 456 Mich. 264, 571 N.W.2d 503 (1997), to the extent that Gahan held that MCL 780.766(2) “authorizes the sentencing court to order criminal defendants to pay restitution to all victims, even if those specific losses were not the factual predicate for the conviction.” Gahan, 456 Mich. at 270, 571 N.W.2d 503. Accordingly, we vacate the portion of the judgment of sentence ordering that the defendant pay $158,180.44 in restitution, and remand to the trial court for entry of an order assessing $63,749.44 in restitution against the defendant.

I. FACTS AND PROCEDURAL HISTORY

In January 2011, Battle Creek police officers arrested the defendant because they believed him to be responsible for a series of thefts of commercial air conditioning units in the area. Following a trial, a jury found the defendant guilty of larceny over $20,000, malicious destruction of property over $20,000, and inducing a minor to commit a felony.² The trial court sentenced the defendant, as a fourth-offense habitual offender, to concurrent terms of 12 to 25 years in prison on each count. The trial court reserved a decision on restitution until after sentencing. Following a hearing, and over defense counsel's objection to the amount of restitution assessed, the trial court entered an amended judgment of sentence to reflect the imposition of $158,180.44 in restitution against the defendant. Of that total, the defendant was ordered to pay $63,749.44 to the four victims of the offenses of which he was convicted and $94,431 to the victims of uncharged thefts attributed to the defendant by his accomplice.

The Court of Appeals vacated the defendant's conviction for larceny over $20,000, but otherwise affirmed his convictions and sentences. People v. McKinley, unpublished opinion per curiam of the Court of Appeals, issued May 16, 2013 (Docket No. 307360), 2013 WL 2120278. The panel rejected the defendant's argument that Michigan's restitution scheme is unconstitutional because it permits trial courts to impose restitution on the basis of facts not proven to the trier of fact beyond a reasonable doubt. Id. at *8.

We granted leave to appeal, 495 Mich. 897, 839 N.W.2d 201 (2013), limited to the following issues:

(1) whether an order of restitution is equivalent to a criminal penalty, and (2) whether Michigan's statutory restitution scheme is unconstitutional insofar as it permits the trial court to order restitution based on uncharged conduct that was not submitted to a jury or proven beyond a reasonable doubt. See Southern Union Co. v. United States, 567 U.S. ––––, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); contra People v. Gahan, 456 Mich. 264, 571 N.W.2d 503 (1997).

II. STANDARD OF REVIEW

The proper application of MCL 780.766(2) and other statutes authorizing the assessment of restitution at sentencing is a matter of statutory interpretation, which we review de novo. Hunter v. Hunter, 484 Mich. 247, 257, 771 N.W.2d 694 (2009). “The first step when interpreting a statute is to examine its plain language, which provides the most reliable evidence of intent.” Ter Beek v. City of Wyoming, 495 Mich. 1, 8, 846 N.W.2d 531 (2014). If the statutory language is unambiguous, no further judicial construction is required or permitted. Id. Questions involving the constitutionality of a statute are also reviewed de novo. Hunter, 484 Mich. at 257, 771 N.W.2d 694.

III. ANALYSIS

The defendant's challenge to the restitution award is premised on the Sixth Amendment to the United States Constitution, specifically Apprendi and its progeny. Defendant challenges both the amount of the restitution award above $63,749.44 (the amount based on uncharged conduct) and the amount between $20,000 and $63,749.44 (the amount based on convicted conduct above and beyond the amount specifically found by a jury). Only the former argument was preserved by a timely objection.³ Ultimately, we do not reach either of defendant's constitutional challenges to the restitution award. As to the former, pursuant to the widely accepted and venerable rule of constitutional avoidance,⁴ we conclude that it is necessary to revisit the statutory analysis of MCL 780.766(2) we set forth in Gahan. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (“[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”).⁵ We believe that adherence to that rule is particularly appropriate in this case because the statutory analysis in Gahan is so plainly incomplete and the defendant's constitutional challenge to restitution based on uncharged conduct is a novel one that other courts have not addressed (indeed, have not even been called upon to address). ⁶

As to the defendant's challenge to the restitution award based on convicted conduct, we conclude that the issue is not properly before us because the defendant has waived it.⁷ The defendant did not raise any question regarding the portion of the restitution award based on convicted conduct in his initial application for leave to appeal in this Court, but instead posited that the entirety of the restitution award based on convicted conduct passed constitutional muster. Only after we granted leave to appeal did the defendant assert that only $20,000 of the restitution award was constitutional under Apprendi. A waiver “extinguishe[s] any error,” People v. Carter, 462 Mich. 206, 216, 612 N.W.2d 144 (2000), thereby foreclosing appellate review, id. at 215, 612 N.W.2d 144.

A. STATUTORY INTERPRETATION

MCL 780.766(2) provides in part that “the [sentencing] 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.” In Gahan, we discussed the Legislature's use of the term “course of conduct” and determined that term should be given a broad construction in light of its historical background and prior decisions from the Court of Appeals interpreting a similar statute. ⁸Gahan, 456 Mich. at 271–272, 571 N.W.2d 503. Notably, however, the Gahan Court devoted no attention to the modifying phrase “that gives rise to the conviction....” ⁹

We conclude that the Gahan Court's reading of MCL 780.766(2) is not sustainable and must be overruled. The plain language of the statute authorizes the assessment of full restitution only for “any victim of the defendant's course of conduct that gives rise to the conviction....” The statute does not define “gives rise to,” but a lay dictionary defines the term as “to produce or cause.” Random House Webster's College Dictionary (2000), p. 1139. Only crimes for which a defendant is charged “cause” or “give rise to” the conviction. Thus, the statute ties “the defendant's course of conduct” to the convicted offenses and requires a causal link between them. It follows directly from this premise that any course of conduct that does not give rise to a conviction may not be relied on as a basis for assessing restitution against a defendant. Stated differently, while conduct for which a defendant is criminally charged and convicted is necessarily part of the “course of conduct that gives rise to the conviction,” the opposite is also true; conduct for which a defendant is not criminally charged and convicted is necessarily not part of a course of conduct that gives rise to the conviction. Similarly, the statute requires that “any victim” be a victim “of” the defendant's course of conduct giving rise to the conviction, indicating that a victim for whom restitution is assessed need also have a connection to the course of conduct that gives rise to the conviction. Allowing restitution to be assessed for uncharged conduct reads the phrase “that gives rise to the conviction” out of the statute by permitting restitution awards for “any victim of the defendant's course of conduct” without any qualification.¹⁰ The statute, however, provides an explicit qualification that the Gahan Court did not address.

Our conclusion is further reinforced when the language of MCL 780.766(2) is read in pari materia with other provisions in the Crime Victim's Rights Act, MCL 780.751 et seq.¹¹MCL 780.767, for example, sets forth the factors for consideration and the burden of proof in setting the amount of restitution. MCL 780.767(1) provides that “[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.” (Emphasis added.) Similarly, MCL 780.767(4) provides that “[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting attorney.” (Emphasis added.) “[T]he offense” in MCL 780.767 can only refer to the offense of which the defendant was convicted, because it is that “offense” that makes him subject to being ordered to pay restitution in the first place. Thus, these provisions further reinforce our conclusion...