Opinion
No. 346554
09-17-2020
IN RE Gregg Bryan KNIGHT. Gregg Bryan Knight, Petitioner-Appellee, v. People of the State of Michigan, Respondent-Appellant.
Watkins Law Firm, PLLC (by Brian R. Watkins ) for petitioner. Jerard M. Jarzynka, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for respondent.
Watkins Law Firm, PLLC (by Brian R. Watkins ) for petitioner.
Jerard M. Jarzynka, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for respondent.
Before: Boonstra, P.J., and Tukel and Letica, JJ.
Tukel, J. Respondent, the Jackson County Prosecuting Attorney, appeals as of right the November 20, 2018 order reinstating the firearm rights of petitioner Gregg B. Knight, which were lost as a result of petitioner's 2001 plea-based conviction of arson of woods and prairies, MCL 750.78, then a four-year felony. Respondent argues that the trial court erred by restoring petitioner's firearm rights because petitioner violated his probation, failed to pay restitution while on parole, and failed to pay court-ordered restitution and attorney fees. Petitioner disagrees and additionally argues that this Court does not have jurisdiction over this case because respondent does not have standing and is not an aggrieved party. We hold that respondent does have standing; on the merits, we reverse and remand for the trial court to enter an order denying the petition because petitioner has not carried his burden.
Following the enactment of 2012 PA 532, effective April 3, 2013, this offense is now classified as fourth-degree arson and is punishable as a five-year felony. MCL 750.75(1)(b) and (3).
I. UNDERLYING FACTS
In May 2001, petitioner pleaded guilty as noted. Petitioner was sentenced to probation and ordered to pay $8,025 in restitution and $375 in attorney fees. Petitioner twice violated the conditions of his probation, and as a result, the trial court, in May 2004, sentenced him to imprisonment for 17 to 48 months for violating the conditions of his probation. Petitioner later was paroled on the 17- to 48-month sentence, with a condition that he pay restitution. Petitioner failed to pay the entirety of his restitution, but he was nevertheless discharged from parole in October 2007. As of January 23, 2019, petitioner had paid only $138.51 in restitution and $60.81 in attorney fees. In August 2018, petitioner filed a petition to restore his firearm rights. See MCL 28.424(1). Petitioner stated in the petition that he had completed probation and parole and that he had paid all fines arising from his arson conviction. Respondent answered the petition in October 2018, arguing that petitioner's firearm rights should not be restored because petitioner had not paid all of his fines, leading to his probation being violated and his imprisonment for those violations.
The trial court held a motion hearing in October 2018. In November 2018, the trial court entered an order restoring petitioner's firearm rights. This appeal followed.
II. RESPONDENT'S STANDING
On appeal, petitioner argues for the first time that respondent lacks standing in this case. We disagree.
A. ISSUE PRESERVATION AND STANDARD OF REVIEW
"To preserve for appellate review an issue regarding standing, the defendant must have raised the issue in his or her first responsive pleading or motion." In re Gerald L. Pollack Trust , 309 Mich. App. 125, 153, 867 N.W.2d 884 (2015). When, as here, a party raises the issue of standing for the first time on appeal, the issue is unpreserved. Id. When properly preserved, this Court reviews de novo the issue of whether a party has standing. Id. at 154, 867 N.W.2d 884. "Likewise, the related issue of whether a plaintiff is the real party in interest is also a question of law that we review de novo." Pontiac Police & Fire Retiree Prefunded Group Health & Ins. Trust Bd. of Trustees v. Pontiac No. 2 , 309 Mich. App. 611, 621, 873 N.W.2d 783 (2015). Unpreserved issues, however, are reviewed for plain error. See Hogg v. Four Lakes Ass'n, Inc. , 307 Mich. App. 402, 406, 861 N.W.2d 341 (2014). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Kern v. Blethen-Coluni , 240 Mich. App. 333, 336, 612 N.W.2d 838 (2000) (quotation marks omitted), quoting People v. Carines , 460 Mich. 750, 763, 597 N.W.2d 130 (1999). "[A]n error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Lawrence v. Mich. Unemployment Ins. Agency , 320 Mich. App. 422, 443, 906 N.W.2d 482 (2017) (alteration in original, citation and quotation marks omitted). The appellant bears the burden of persuasion with respect to prejudice. See Carines , 460 Mich. at 763, 597 N.W.2d 130 ("It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.") (citation and quotation marks omitted).
In this case, the issue of standing implicates more than who may file a brief or present argument to a court. The filing of a claim of appeal or the granting of an application to appeal is a prerequisite to our having jurisdiction. See MCR 7.203(A) and 7.203(B). Thus, if respondent lacked standing, this appeal would not lie because there would be no party to appeal. Therefore, if petitioner is correct that a prosecuting attorney lacks standing in firearm-rights-restoration cases, a trial court's ruling ordering firearm rights restored would, in all instances, be effectively unreviewable because there never would be a party who could pursue an appeal. Under respondent's view, however, a petitioner could in all cases appeal the denial of a petition, given that MCL 28.424(1) undisputedly confers standing on petitioners.
B. ANALYSIS
At the trial court level, "a litigant has standing whenever there is a legal cause of action." Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed. , 487 Mich. 349, 372, 792 N.W.2d 686 (2010) ( LSEA ). But even if no legal cause of action is available to a litigant, "[the] litigant may have standing ... if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if the statutory scheme implies that the Legislature intended to confer standing on the litigant."
In general, standing requires a party to have a sufficient interest in the outcome of litigation to ensure vigorous advocacy and in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy. [ Pontiac Police & Fire , 309 Mich. App. at 621, 873 N.W.2d 783 (2015) (citation and quotation marks omitted).]
To have standing on appeal, however, a litigant must be an aggrieved party under MCR 7.203(A). MCNA Ins. Co. v. Dep't of Technology, Mgt. & Budget , 326 Mich. App. 740, 745, 929 N.W.2d 817 (2019) ; MCR 7.203(A). To be an aggrieved party, a litigant must have "suffered a concrete and particularized injury ... arising from either the actions of the trial court or the appellate court judgment...." MCNA , 326 Mich. App. at 745, 929 N.W.2d 817 (citation and quotation marks omitted; sentence structure altered). For a party to be aggrieved, the injury must be concrete "and not a mere possibility arising from some unknown and future contingency." Id. (citation and quotation marks omitted).
Petitioner argues that respondent does not have standing because he lacks an interest in whether petitioner's firearm rights are restored. Specifically, petitioner argues that MCL 28.424 does not identify respondent as an "interested party" and that this omission establishes that respondent is not an interested party. Petitioner is correct that county prosecutors are not even referred to in the firearm-rights-restoration statute, MCL 28.424. But standing does not require that a statute identify a litigant as an interested party. LSEA , 487 Mich. at 372, 792 N.W.2d 686. Standing does require that a litigant have an interest in the outcome of the litigation, but that interest need not be enshrined in a statute. See id.
Petitioner additionally argues that respondent does not have standing because under a prior version of MCL 28.424, the county prosecutor, as a member of the concealed-weapon licensing board, had a role in determining whether to restore a petitioner's firearm rights. Petitioner argues that when the Legislature transferred this power to the circuit courts, effective December 1, 2015, its action established that prosecutors no longer had an interest in whether a petitioner's firearm rights were restored.
The county sheriff and the director of the department of state police also were members of the concealed-weapon licensing board. MCL 28.425a, as amended by 2000 PA 381.
Before December 1, 2015, the concealed-weapon licensing board, of which the county prosecutor was a member, determined whether to restore a petitioner's firearm rights. See MCL 28.424, as amended by 1992 PA 219; MCL 28.425a, as amended by 2000 PA 381. Effective December 1, 2015, however, concealed-weapon licensing boards were abolished and the county clerk became responsible for many of the duties previously held by the concealed-weapon licensing board. MCL 28.425a, as amended by 2015 PA 3. But the power to determine whether to restore a petitioner's firearm rights was given to the circuit courts, not the county clerk. MCL 28.424, as amended by 2014 PA 6. That power remains with circuit courts today. MCL 28.424.
Although the Legislature abolished concealed-weapon licensing boards and, instead, reposed the power to restore firearm rights solely in the circuit courts, this change alone does not establish that respondent lacks standing in this case. Notwithstanding the Legislature's amendments of MCL 28.424 and MCL 28.425a, respondent still has an interest in this case. Under MCL 49.153, "[t]he prosecuting attorneys shall, in their respective counties, appear for the state or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions whether civil or criminal, in which the state or county may be a party or interested." In construing a statute, "[i]t is a well-known principle that the Legislature is presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws." Walen v. Dep't of Corrections , 443 Mich. 240, 248, 505 N.W.2d 519 (1993). Nothing in the firearm-rights-restoration statutes suggests that MCL 49.153 is not to be applied to such proceedings or, more generally, that prosecuting attorneys shall have no role to play in those proceedings notwithstanding the facial applicability of MCL 49.153.
MCL 49.153 does not specify the mechanism by which a prosecuting attorney shall "appear" in such proceedings or how the prosecuting attorney mechanically then becomes a party or a litigant with standing. We would invite the Legislature to provide clarity in that regard. We do note, for purposes of this appeal, that MCR 2.209(A)(1) provides that a person has a right to intervene in any action "when a Michigan statute or court rule confers an unconditional right to intervene[.]" And although that right exists "[o]n timely application," MCR 2.209(A), respondent has represented to this Court that the trial court in this case expressly invited him to appear. We therefore deem any requirement of an "application" to intervene to have been satisfied in this case.
Moreover, to read the firearm-rights-restoration statutes in the manner in which petitioner suggests would work a very significant change in the procedure by which those cases are generally heard and decided. "Under our adversarial system, each party bears the responsibility for ensuring that its positions are vigorously and properly advocated," and " ‘parties frame the issues and arguments’ for the trial court." Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc. , 285 Mich. App. 362, 382–383, 775 N.W.2d 618 (2009) (citations omitted). The United States Supreme Court has very recently reaffirmed this point. In United States v. Sineneng-Smith , 590 U.S. ––––, ––––, 140 S.Ct. 1575, 206 L.Ed.2d 866 (2020), the Court unanimously stated, "In our adversarial system of adjudication, we follow the principle of party presentation," which means that " ‘in both civil and criminal cases, in the first instance and on appeal ..., we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.’ " Id. at ––––, 140 S. Ct. at 1579, quoting Greenlaw v. United States , 554 U.S. 237, 243, 128 S. Ct. 2559, 171 L. Ed. 2d 399 (2008). Thus, "our system ‘is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.’ " Sineneng-Smith , 590 U.S. at ––––, 140 S.Ct. at 1579 (alteration in original), quoting Castro v. United States , 540 U.S. 375, 386, 124 S. Ct. 786, 157 L. Ed. 2d 778 (2003) (Scalia, J., concurring in part and concurring in the judgment). Consequently, courts "do not, or should not, sally forth each day looking for wrongs to right. They wait for cases to come to them, and when cases arise, courts normally decide only questions presented by the parties.’ " Sineneng-Smith , 590 U.S. at ––––, 140 S.Ct. at 1579 (citation and brackets omitted).
Petitioner's reading of the statute would do away with the adversarial aspect of firearm-rights-restoration proceedings because there would be no one to argue in opposition to the restoration of a petitioner's rights. A trial court would have to function both as an advocate and as an adjudicator. Among other things, this would require a trial court, with input only from a petitioner, to ferret out whether a petitioner's "record and reputation are such that the individual is not likely to act in a manner dangerous to the safety of other individuals." MCL 28.424(4)(c) ; see also Part III of this opinion. Trial courts generally are poorly equipped to conduct such fact-finding on their own, without arguments and with the development of facts in support of only one side of such a motion.
As noted, the statute assigns to circuit courts the sole authority to determine firearm-rights restoration. MCL 28.424(1).
In addition, under petitioner's reading, there would be no aggrieved party with standing to appeal a trial court ruling restoring firearm rights, and thus, such decisions would be effectively unreviewable. See note 2 of this opinion. This result would fly in the face of Sineneng-Smith , under which a court abuses its discretion if it departs too drastically from the principle of party presentation. Sineneng-Smith, 590 U.S. at ––––, 140 S.Ct. at 1579. Applying that reasoning, the Court in Sineneng-Smith remanded the case for an adjudication of the appeal "attuned to the case shaped by the parties rather than the case designed by the appeals panel." Id. at ––––, 140 S.Ct. at 1578.
Given the strong presumption that proceedings will generally take place in an adversarial system, and given that MCL 49.153 facially applies to prosecuting attorneys being involved in firearm-rights-restoration cases because such cases involve civil "applications and motions" in which the state is an interested party, we find nothing in the statutory language that would support reading the statute to so radically depart from the ordinary and expected functioning of adversarial proceedings. In the absence of a clear statutory statement of such a purpose, we cannot conclude that the Legislature intended that result. The United States Supreme Court has stated, in a different context involving notice of what the law entails, "If [the Legislature] desires to go further, it must speak more clearly than it has." McNally v. United States , 483 U.S. 350, 360, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987) ; see also Skilling v. United States , 561 U.S. 358, 411, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010) (quoting McNally and stating that "absent [the Legislature's] clear instruction otherwise[,] ‘[i]f [the Legislature] desires to go further,’ ... ‘it must speak more clearly than it has’ "). We hold that the same requirement of clarity applies here.
Furthermore, respondent is an interested party in this case because a trial court's decision to restore a petitioner's firearm rights obviously directly affects the petitioner's right to possess firearms. If a trial court denies the petition, then the petitioner's possession of a firearm would violate MCL 750.224f. See MCL 28.424 ; MCL 750.224f (prohibiting possession of a firearm by a felon). In contrast, if a trial court grants the petition, the petitioner could lawfully possess a firearm. See MCL 28.424 ; MCL 750.224f. County prosecutors have an interest in prosecuting criminal defendants for violating criminal statutes, such as MCL 750.224f, or at least in having the authority to prosecute. Thus, because the trial court's decision to restore petitioner's firearm rights directly affected petitioner's legal status under MCL 750.224f, respondent had an interest in the proceedings and that interest conveyed standing on it. See LSEA , 487 Mich. at 372, 792 N.W.2d 686 ; MCL 49.153 (establishing standing on the part of the prosecuting attorney in all cases in which "the state or county may be ... interested").
For purposes of this opinion, the phrase "possess firearms" means to possess, use, transport, sell, purchase, carry, ship, receive, or distribute firearms. See MCL 28.424(1).
Respondent is an aggrieved party on appeal for these same reasons. Respondent argued that he opposed the petition because petitioner had not successfully completed the requirements of MCL 28.424. As explained earlier, when a petitioner's firearm rights are restored, he or she may lawfully possess a firearm. Thus, in this case, once the trial court restored petitioner's firearm rights, respondent was precluded under MCL 750.224f, from prosecuting petitioner for possessing a firearm. The trial court's determination conclusively resolved respondent's authority to enforce MCL 750.224f as to petitioner, now and in the future. Thus, respondent is an aggrieved party because appealing the trial court's ruling will be the only opportunity for respondent to seek to assert his authority regarding the restoration of petitioner's firearm rights. See MCNA Ins. Co. , 326 Mich. App. at 745, 929 N.W.2d 817 ; MCL 49.153.
III. RESTORATION OF PETITIONER'S FIREARM RIGHTS
Turning to the merits of this case, we agree with respondent that the trial court erred by restoring petitioner's firearm rights.
A. STANDARD OF REVIEW
"Issues of statutory interpretation are reviewed de novo." Riverview v. Sibley Limestone , 270 Mich. App. 627, 630, 716 N.W.2d 615 (2006). When the language of a statute is clear and unambiguous, this Court "will apply the statute as written and judicial construction is not permitted." Driver v. Naini , 490 Mich. 239, 247, 802 N.W.2d 311 (2011). B. ANALYSIS
MCL 28.424 establishes the mechanism by which an individual who is prohibited from possessing a firearm may have his or her right to possess a firearm restored. In relevant part, MCL 28.424 states:
(1) An individual who is prohibited from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm under section 224f(2) of the Michigan penal code, 1931 PA 328, MCL 750.224f, may petition the circuit court in the county in which he or she resides for restoration of those rights.
* * *
(4) The circuit court shall, by written order, restore the rights of an individual to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm or to possess, use, transport, sell, carry, ship, or distribute ammunition if the circuit court determines, by clear and convincing evidence, that all of the following circumstances exist:
(a) The individual properly submitted a petition for restoration of those rights as provided under this section.
(b) The expiration of 5 years after all of the following circumstances:
(i ) The individual has paid all fines imposed for the violation resulting in the prohibition.
(ii ) The individual has served all terms of imprisonment imposed for the violation resulting in the prohibition.
(iii ) The individual has successfully completed all conditions of probation or parole imposed for the violation resulting in the prohibition.
(c) The individual's record and reputation are such that the individual is not likely to act in a manner dangerous to the safety of other individuals.
The parties focus much of their arguments on MCL 28.424(4)(b)(iii ) and whether petitioner successfully completed "all conditions of probation or parole imposed for the violation resulting in the prohibition." Generally, a defendant in a criminal proceeding will be sentenced to either probation or a term of imprisonment, not both, with only a term of imprisonment carrying with it a possibility of parole. Here, however, petitioner did receive both, albeit at different times, because his original sentence was a term of probation and because, as a consequence of his violation of that probation, he was resentenced to a term of imprisonment, from which he was later paroled. In other words, petitioner's original sentence was one of probation, not incarceration; therefore, it necessarily included no element of possible future parole. Parole became a possibility only after petitioner violated his probation and was resentenced to a term of imprisonment.
In discussing the meaning of "parole" under Michigan law, this Court in People v. Clark , 315 Mich. App. 219, 230, 888 N.W.2d 309 (2016), stated:
[U]nder Michigan law, "parole" is consistent with the definition of that term in Black's Law Dictionary (10th ed.): "The conditional release of a prisoner from imprisonment before the full sentence has been served." It is also consistent with the first pertinent definition of "parole" in Merriam–Webster's Collegiate Dictionary (11th ed.) of "a conditional release of a prisoner serving an indeterminate or unexpired sentence." A prisoner becomes "parole eligible " after serving the minimum term of his or her indeterminate sentence, and the Parole Board then has jurisdiction to determine "whether the prisoner is worthy of parole." [Citation omitted.]
We conclude that petitioner's parole is not relevant for purposes of MCL 28.424(4)(b)(iii ) because, in the circumstances presented, the conditions of parole were not initially imposed "for the violation [of law] resulting in the prohibition." In this case, "the violation" of law to which the statute refers means the violation of law that rendered petitioner ineligible to possess a firearm, that is, his conviction of arson. MCL 750.224(f)(1). Petitioner was sentenced to probation for that offense, and he violated the terms of that probation. As a result of the violation, he was sentenced to a term of imprisonment for which he was eventually paroled. Only the probation, and not the later parole, involved conditions imposed directly "for the violation resulting in the prohibition," MCL 28.424(4)(b)(iii ), because only the term of probation was part of the original sentence for the arson offense; conditions of parole were imposed not as part of the original sentence for the underlying felony but only as a result of the violation of the terms of probation, and thus, in the circumstances presented, the parole conditions were not relevant under MCL 28.424(4). Therefore, we conclude under the circumstances of this case that the only relevant inquiry is whether petitioner complied with "all conditions of probation," not whether he complied with conditions of parole.
It is potentially confusing that MCL 28.424(4)(b)(iii) uses the term "the violation" in defining the conditions a petitioner must meet for restoration of firearm rights, because the term "violation" can, in isolation, refer to either a violation of law or a violation of the conditions of probation or parole. But it is clear from its context that "the violation" refers to the underlying violation of law that results in an individual's losing firearm rights. MCL 28.424(1) refers to an individual's being "prohibited" from possessing a firearm under MCL 750.224f. Under MCL 750.224f(1), "a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state ...." Thus, it is a felony conviction that triggers the loss of firearm rights and therefore constitutes "the violation" regarding those rights; in this case, that violation is petitioner's conviction of arson.
We recognize that, generally, "parole is inherently a part of the original sentence imposed by the trial court." People v. Clark , 315 Mich. App. 219, 230, 888 N.W.2d 309 (2016). However, that was not true in this case. In this case, the original sentence was probation, not a term of imprisonment; only upon the violation of that probation did a sentence of imprisonment result, which eventually led to petitioner's parole and the imposition of related conditions of parole.
We further recognize that "a probation violation does ‘not constitute a separate felony ....’ " People v. Hendrick , 472 Mich. 555, 562, 697 N.W.2d 511 (2005), quoting People v. Kaczmarek , 464 Mich. 478, 482, 628 N.W.2d 484 (2001). "Rather, ‘revocation of probation simply clears the way for a resentencing on the original offense.’ " Hendrick , 472 Mich. at 555, 697 N.W.2d 511, quoting Kaczmarek , 464 Mich. at 483, 628 N.W.2d 484. See also MCL 771.4 ("If a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made."). However, although the imprisonment sentence (from which petitioner ultimately was paroled) was technically a sentence for the original arson offense, we cannot on these facts deem the conditions of parole to have been imposed for the arson offense itself, for purposes of MCL 28.424(4), given the intervening initial sentence of probation, probation violation, revocation of probation, and imprisonment.
For the same reason, we reject petitioner's contention that the requirement of MCL 28.424(4)(b)(iii ) — that petitioner have "successfully completed all conditions of probation or parole imposed for the violation resulting in the prohibition"—means that petitioner can pick and choose between his satisfaction of the conditions of his probation or the conditions of his parole. To the contrary, we interpret the statutory language as reflecting the Legislature's understanding that a criminal sentencing generally results in either probation or imprisonment (with the possibility of parole), not both. It therefore included the language "conditions of his probation or parole" so as to broadly encompass both possibilities. It did not intend the language to give a petitioner the choice of complying with the terms of his original probation or of complying with the terms of his later parole, particularly because the parole is from a term of imprisonment that itself resulted from the violation of his probation.
Petitioner concedes that he did not complete probation, given that his probation was violated and he was sentenced to prison for the violation. Consequently, petitioner is ineligible for restoration of his firearm rights. See MCL 28.424(4)(b)(iii ). Finally, because MCL 28.424(4)(b)(iii ) in and of itself precludes the restoration of petitioner's firearm rights, this Court need not consider whether petitioner failed to satisfy other requirements for restoration of rights, such as whether he was required to pay restitution and attorney fees under MCL 28.424(4)(b)(i ).
IV. CONCLUSION
We reverse and remand for the trial court to enter an order denying the petition because petitioner has not carried his burden. We do not retain jurisdiction.
Boonstra, P.J., concurred with Tukel, J.
Letica, J. (concurring).
Given the broad language of MCL 49.153, I agree with the majority that a prosecutor who chooses to do so may appear for the state in a civil matter involving restoration of firearm rights. Michigan ex rel. Oakland Co. Prosecutor v. Dep't of Corrections , 199 Mich. App. 681, 694, 503 N.W.2d 465 (1993). Compare In re Hill , 206 Mich. App. 689, 692 n. 1, 522 N.W.2d 914 (1994) (holding that the Probate Code's specific statutory provisions conferring standing on a prosecutor representing the Department of Social Services controlled over MCL 49.153 ’s broad language). Moreover, despite the fact that the Jackson County Prosecuting Attorney did not formally intervene in this matter and because petitioner's objection to the prosecutor's standing is raised for the first time on appeal, I further agree that the prosecutor is an aggrieved party for purposes of this appeal. Tucker v. Clare Bros. Ltd. , 196 Mich. App. 513, 517-518 & 518 n.1, 493 N.W.2d 918 (1992).
Like my colleagues, I recognize the benefits of our adversarial system while also acknowledging that our Legislature provided a nonadversarial civil process for a petitioner seeking restoration of his firearm rights following a conviction of a specified felony. MCL 28.424(1), (3), and (4). Compare MCL 780.621(11) (creating an adversarial process requiring service on the prosecutor and providing an opportunity to contest an application to set aside a conviction). The statute at issue in this case directs the petitioner to file the petition in the county where he resides, not necessarily the county of conviction. MCL 28.424(1). The statute also requires the petitioner to file a petition and places on him or her the burden of proving by clear and convincing evidence that five years had expired since he or she "paid all fines imposed for the violation resulting in the prohibition," MCL 28.424(4)(b)(i ), "served all terms of imprisonment imposed for the violation resulting in the prohibition," MCL 28.424(4)(b)(ii ), and "successfully completed all conditions of probation or parole imposed for the violation resulting in the prohibition," MCL 28.424(4)(b)(iii ). The petitioner must further demonstrate that his or her "record and reputation are such that the individual is not likely to act in a manner dangerous to the safety of other individuals." MCL 28.424(4)(c). The first three of these issues can be determined by reviewing court or institutional records, and the fourth query can be answered from the petitioner's documentation or through direct questioning. Even so, during oral argument in this matter, the prosecutor candidly admitted that he appeared below at the circuit court's request for assistance, and not just in this case. If, in fact, the current statutory petition process is proving problematic for the circuit courts, certainly their concerns should be brought to the Legislature's attention. Compare MCL 28.424 with ND Cent Code 62.1-02-01.1.
Turning to the language of the current statutory scheme, my colleagues raise an issue not addressed by the parties below. They conclude that the dispositive language from MCL 28.424(4)(b)(iii ) is the phrase "imposed for the violation resulting in the prohibition" and that because petitioner's prison sentence was imposed for his probation violation, not for the underlying specified felony, the petition must be denied. Although I disagree with this rationale, I agree that the trial court erred.
It is well established that "a probation violation does ‘not constitute a separate felony ....’ " People v. Hendrick , 472 Mich. 555, 562, 697 N.W.2d 511 (2005), quoting People v. Kaczmarek , 464 Mich. 478, 482, 628 N.W.2d 484 (2001). "Rather, ‘revocation of probation simply clears the way for resentencing on the original offense.’ " Hendrick , 472 Mich. at 562, 697 N.W.2d 511, quoting Kaczmarek , 464 Mich. at 483, 628 N.W.2d 484. See also MCL 771.4 ("If a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made.").
In relevant part, MCL 28.424 reads:
(1) An individual who is prohibited from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm under section 224f(2) of the Michigan penal code, 1931 PA 328, MCL 750.224f, may petition the circuit court in the county in which he or she resides for restoration of those rights.
* * *
(4) The circuit court shall, by written order, restore the rights of an individual to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm or to possess, use, transport, sell, carry, ship, or distribute ammunition if the circuit court determines, by clear and
convincing evidence, that all of the following circumstances exist:
* * *
(b) The expiration of 5 years after all of the following circumstances:
(i ) The individual has paid all fines imposed for the violation resulting in the prohibition.
(ii ) The individual has served all terms of imprisonment imposed for the violation resulting in the prohibition.
(iii ) The individual has successfully completed all conditions of probation or parole imposed for the violation resulting in the prohibition. [Emphasis added.]
Petitioner recognizes that he did not successfully complete his probation, but he maintains that his subsequent parole discharge establishes that he successfully completed his parole. Petitioner contends that the Legislature's use of the disjunctive word "or" in the phrase "probation or parole" signifies that a petitioner is eligible for restoration of his firearm rights if he successfully completes either all conditions of his probation or all conditions of his parole imposed for the violation resulting in the prohibition. On the other hand, the prosecutor reads the statutory language to require a petitioner to successfully complete all conditions of probation or parole if actually imposed for the underlying specified felony conviction. Because petitioner twice violated his probation conditions, the prosecutor argues that the circuit court erred when it restored petitioner's firearm rights. In any event, the prosecutor asserts that, even if petitioner's disjunctive reading is correct, the circuit court nevertheless erred because petitioner failed to pay his court-ordered restitution. Petitioner responds that his restitution abated upon his discharge from parole and that therefore, he successfully completed that parole condition. The circuit court granted petitioner's petition, concluding that petitioner's parole discharge was sufficient to satisfy Subsection (4)(b)(iii).
I. STANDARD OF REVIEW
The interpretation and application of a statute presents a question of law that we review de novo. Menard Inc. v. Dep't of Treasury , 302 Mich. App. 467, 471, 838 N.W.2d 736 (2013). Our objective is to discern and give effect to the Legislature's intent. Id. "The rules of statutory construction serve as guides to assist [the courts] in determining legislative intent with a greater degree of certainty." Varran v. Granneman (On Remand) , 312 Mich. App. 591, 617-618, 880 N.W.2d 242 (2015). "Statutory language should be construed reasonably, keeping in mind the purpose of the statute." Id. at 618, 880 N.W.2d 242 "Once the intention of the Legislature is discovered, it must prevail over any conflicting rule of statutory construction." Id. The most reliable evidence of the Legislature's intent is "the language of the statute itself." Menard Inc. , 302 Mich. App. at 471, 838 N.W.2d 736. When construing statutory language, we read "the statute as a whole and in its grammatical context, giving each and every word its plain and ordinary meaning unless otherwise defined." Id. (quotation marks and citation omitted). "Effect must be given to every word, phrase, and clause in a statute, and the court must avoid a construction that would render part of the statute surplusage or nugatory." Id. at 471, 838 N.W.2d 736. "If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted." Id. (quotation marks and citation omitted). One rule of statutory construction provides that "[t]he word ‘or’ generally refers to a choice or alternative between two or more things." Id. at 472, 838 N.W.2d 736 (quotation marks and citation omitted).
II. ANALYSIS
A. MCL 750.224f
MCL 28.424 operates in tandem with the criminal felon-in-possession statute, MCL 750.224f. See MCL 28.424(1) and MCL 750.224f(2)(b). Unless the circuit court restores the firearm rights of a felon convicted of a specified felony under MCL 28.424, the felon remains subject to criminal prosecution if he or she possesses a firearm. MCL 750.224f(1), (2), and (5) ; People v. Perkins , 473 Mich. 626, 635, 703 N.W.2d 448 (2005).
MCL 750.224f parallels the language in MCL 28.424, providing, in pertinent part:
(1) Except as provided in subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all of the following circumstances exist:
(a) The person has paid all fines imposed for the violation.
(b) The person has served all terms of imprisonment imposed for the violation.
(c) The person has successfully completed all conditions of probation or parole imposed for the violation.
(2) A person convicted of a specified felony shall not possess, use, transport,
sell, purchase, carry, ship, receive, or distribute a firearm in this state until all of the following circumstances exist:
(a) The expiration of 5 years after all of the following circumstances exist:
(i ) The person has paid all fines imposed for the violation.
(ii ) The person has served all terms of imprisonment imposed for the violation.
(iii ) The person has successfully completed all conditions of probation or parole imposed for the violation.
(b) The person's right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored under section 4 of 1927 PA 372, MCL 28.424.
This Court has previously addressed the question of whether a probation violation precluded the automatic restoration of firearm rights for a felon convicted of a nonspecified felony under MCL 750.224f(1)(c). In People v. Sessions , 262 Mich. App. 80, 82, 684 N.W.2d 371 (2004), rev'd and vacated 474 Mich. 1120, 712 N.W.2d 718 (2006), recon. den. 477 Mich. 883, 721 N.W.2d 799 (2006), the prosecution charged the defendant with being a felon in possession of a firearm. The defendant contended that he had successfully completed all conditions of probation when the circuit court discharged him despite having previously continued his probation after a probation violation. Id. at 83-84, 684 N.W.2d 371. This Court interpreted the phrase "successfully completed all conditions of probation" in MCL 750.224f(1)(c), and held that the existence of a probation violation precluded a conclusion that the individual had successfully completed probation. Id. at 84-86, 684 N.W.2d 371. In particular, the Sessions majority reasoned:
The plain and ordinary meaning of the phrase "successfully completed all conditions of probation" requires success in all conditions imposed for probation. This straightforward meaning of the phrase becomes more apparent if the words "all conditions" are removed because the probationer would then merely have to succeed in making it through the probationary period, or "successfully complete probation." In construing a statute, the court should presume that every word has some meaning and should
avoid any construction that would render any part of a statute surplusage or nugatory. People v. Borchard-Ruhland , 460 Mich. 278, 285, 597 N.W.2d 1 (1999). It is possible to give every word in MCL 750.224f(1)(c) meaning by recognizing the difference between a probationer who is discharged from probation upon successful completion of all conditions of probation and a probationer who is discharged from probation despite failing to successfully complete all conditions of probation. [ Sessions , 262 Mich. App. at 85, 684 N.W.2d 371 (emphasis added).]
However, our Supreme Court reversed and vacated this Court's decision. Sessions , 474 Mich. 1120, 712 N.W.2d 718. The Court explained that a probation officer had stated that the defendant had complied with the conditions of his probation, that the prosecutor had failed to challenge the probation officer's statement, and that the circuit court later adopted the probation officer's statement in an order discharging the defendant from probation. Id. at 1120, 712 N.W.2d 718. Thus, the Court concluded that the prosecutor's subsequent contention that the defendant had not successfully completed probation was an impermissible collateral attack of the probation discharge order. Id. In a dissenting statement, Justice KELLY opined that a successful completion of probation would happen when one "achieve[d] a favorable termination of all conditions of probation." Id. at 1121, 712 N.W.2d 718 ( KELLY , J., dissenting). Justice KELLY observed that because the circuit court unconditionally discharged the defendant from probation, he achieved such a termination, stating: "He was free from court supervision without the obligation to report to a probation officer. Therefore, he successfully completed all conditions of probation." Id. Justice KELLY explained that it was "obvious ... that a person has ‘successfully completed’ all conditions of probation when there are no more conditions left to complete" and that the defendant had " ‘successfully’ complied with all of his legal obligations because no conditions remain. Where once there were five conditions to satisfy, now there is none." Id. at 1121-1122, 712 N.W.2d 718. Justice KELLY further explained that the term "successfully" was not the same as "perfectly." Id. at 1122, 712 N.W.2d 718 ( KELLY , J., dissenting). And Justice KELLY buttressed her conclusion by noting that the structure of the other statutory provisions (i.e., MCL 750.224f(1)(a) an (b)) referred to a distinct date for the payment of all fines and service of all terms of imprisonment, suggesting that discharge of probation was a final determination that probationary conditions had been successfully completed. Id. at 1122, 712 N.W.2d 718.
The court's order reflected the probation officer's assertion "that the defendant had ‘complied with [the] terms and conditions of [his] probation.’ " Sessions , 474 Mich. at 1120, 712 N.W.2d 718 (order of the Court) (second alteration in original).
Justice Markman indicated that while he did not "necessarily disagree with Justice Kelly ’s substantive analysis," he believed that the Court would "doubtlessly ... have the opportunity to consider it in a future case." Sessions , 474 Mich. at 1120, 712 N.W.2d 718 ( Markman , J., concurring).
This Court recently revisited the question of the meaning of the phrase "successfully completed all conditions of probation" in People v. Parkmallory , 328 Mich. App. 289, 936 N.W.2d 877 (2019), judgment vacated 505 Mich. 866, 935 N.W.2d 49 (2019). The question presented was whether the defendant's trial counsel was ineffective for failing to present evidence that the defendant's right to possess a firearm had been automatically restored under MCL 750.224f(1). The defendant had been convicted and sentenced to probation with credit for time served. Id. at 296, 936 N.W.2d 877. His probation was later closed without improvement. Id. Finding Justice KELLY ’s dissent in Sessions persuasive, this Court adopted it and concluded that the defendant "achieved a favorable termination of his probation" when he was unconditionally discharged. Id. at 297-300, 936 N.W.2d 877. Our Supreme Court subsequently vacated this Court's judgment and remanded to the circuit court to conduct a hearing to determine "whether the defendant would have been able to show ... that he had ‘paid all fines imposed for the violation,’ MCL 750.224f(1)(a), or that he ‘successfully completed all conditions of probation or parole imposed for the violation,’ MCL 750.224f(1)(c), due to the ... bench warrant for his ‘failure to pay the balance of his Court Assessments,’ including probation supervision fees." Parkmallory , 505 Mich. at 866, 935 N.W.2d 49.
B. MCL 28.424
MCL 28.424(4)(b) requires the circuit court considering a petition to restore firearm rights to ensure that five years have passed since the payment of "all fines," the service of "all terms of imprisonment," and the successful completion of "all conditions of probation or parole...." Fines, imprisonment, and conditions of probation or parole are potential sentencing consequences arising from a felony conviction. MCL 750.506, MCL 769.1, MCL 769.5, MCL 769.31, MCL 769.34(1), and MCL 771.1(1).
Although certain conditions of probation are statutorily mandated, MCL 771.3(1), the circuit court may impose additional conditions of probation in its discretion, MCL 771.3(2) and (3). One of the statutorily mandated conditions of probation is that the probationer pay restitution. MCL 769.1a(11), MCL 771.3(1)(e), and MCL 780.766(11).
Likewise, certain parole conditions are statutorily mandated, but the Parole Board may impose other parole conditions in its discretion. MCL 791.233(3), MCL 791.234a(8), and MCL 791.236 ; Mich. Admin Code, R 791.7730. Again, one of the statutorily mandated conditions of parole is that the parolee pay restitution if ordered to do so by the circuit court under the Crime Victim's Rights Act or the Code of Criminal Procedure. MCL 769.1a(11) and MCL 780.766(11). See also MCL 791.236(5) (stating that parole orders must contain a condition to pay restitution if the prisoner has been ordered to pay restitution under the Crime Victim's Rights Act); Rule 791.7730(3)(a) (same).
MCL 780.751 et seq.
MCL 760.1 et seq.
If the circuit court imposes probation, the conditions of it are reflected in its orders. See Mich. Admin Code, R 791.9920(1) and (3). Similarly, the Parole Board's parole order includes the conditions of parole. MCL 791.236(3) and (4).
During the probationary term, a probation officer may petition the court to discharge the defendant from his probation if the officer explains the reasons for his or her request. SCAO, Form MC 245 (Mar. 2015). The standardized form permits the circuit court to check a box indicating either that "all conditions of probation" either "were" or "were not successfully completed." Id. The form further reflects the circuit court's order that "[t]he defendant is discharged from probation supervision," but that "[a]ny unfulfilled financial obligations or conditions of the sentence imposed by th[e] court can be pursued according to law." Id. "When a probationer is discharged upon the expiration of the probation period, or upon ... earlier termination by order of the court, entry of the discharge [must] be made in the records of the court, and the probationer [is] entitled to a certified copy thereof." MCL 771.6.
Likewise, "[i]f a paroled prisoner has faithfully performed all of the conditions and obligations of parole for the period of time fixed in the order of parole, and has obeyed all of the rules and regulations adopted by the parole board, the prisoner has served the full sentence required. The parole board shall enter a final order of discharge and issue the paroled prisoner a certificate of discharge." MCL 791.242(1).
For most felony convictions, the circuit court is free to impose probation at the defendant's initial sentencing. MCL 771.1(1). A probationary sentence allows the defendant to remain in the community, albeit under supervision, and may include imprisonment in the county jail, MCL 771.3(2). See also MCL 769.31(1)(b)(ii ). Parole, on the other hand, is granted by the Parole Board after the circuit court sentences the defendant to incarceration in the state prison, not probation. Parole returns the parolee to the community under supervision. When a defendant violates probation conditions, however, the circuit court may opt to revoke probation and impose imprisonment in the state prison. MCL 771.4. If it does so, parole follows.
Returning to the language of Subsections (4)(b)(i ) through (iii ), each potential sentencing consequence—fines, imprisonment, probation, or parole—must be "imposed for the violation resulting in the prohibition." "[T]he violation resulting in the prohibition" must refer to the underlying felony conviction of the specified felony because it is that conviction that prevents the petitioner from possessing a firearm. MCL 28.424(1), MCL 750.224f(2), and MCL 750.224f(10). Therefore, if the sentencing consequence was not imposed by the circuit court or the Parole Board for the underlying specified felony conviction, it is not considered by the circuit court when deciding whether to restore the petitioner's firearm rights.
MCL 28.424(4)(b)(i ) through (iii ).
Moreover, the Legislature did not require petitioners to demonstrate that they "successfully" served all terms of imprisonment. MCL 28.424(4)(b)(ii ). Nor did the Legislature require petitioners to demonstrate that they completed probation or parole without reference to the conditions of probation or parole. Compare MCL 600.1099k(3) ("has successfully completed probation"), MCL 600.1098(6) ("has successfully completed probation"), and MCL 780.621(5)(b) ("[c]ompletion of probation"). Instead, the Legislature explicitly required petitioners seeking restoration of their firearm rights to demonstrate that they had "successfully completed all conditions of probation or parole imposed for the violation resulting in the prohibition." MCL 28.424(4)(b)(iii ). Compare MCL 330.1134a(1)(b) and (c) ("completed all of the terms and conditions of his or her sentencing, parole, and probation"); MCL 333.18263(1)(c)(ii ) and (iii ) (same) ; MCL 333.20173a(1)(b) and (c) (same) ; MCL 400.734b(1)(b) and (c) (same). I can conceive of no principled reason for the Legislature to have added "successfully" to Subsection (4)(b)(iii ) other than to purposefully differentiate the mere completion of all conditions of probation or parole from the "successful" completion of all probationary or parole conditions. Therefore, to avoid rendering part of the statute nugatory or surplusage, this Court must give some meaning or effect to the word "successfully." Menard Inc. , 302 Mich. App. at 471, 838 N.W.2d 736. Terms that are not defined in a statute, as here, must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary definition for those meanings. People v. Rea , 500 Mich. 422, 429, 902 N.W.2d 362 (2017) ; Halloran v. Bhan , 470 Mich. 572, 578, 683 N.W.2d 129 (2004). "Success" is defined as a "favorable or desired outcome," and "successful" is defined as "resulting or terminating in success." Merriam-Webster's Collegiate Dictionary (11th ed.). In turn, "successfully" is an adverb used to describe how the petitioner must complete "all conditions of probation or parole imposed for the violation resulting in the prohibition" in order to have his firearm rights restored. MCL 28.424(4)(b)(iii ).
This was also the conclusion of the Sessions majority after reviewing similar phrasing in MCL 750.224f(1)(c). Sessions , 262 Mich. App. at 85, 684 N.W.2d 371. I recognize that the majority's decision in Sessions was vacated and, therefore, not binding. People v. Akins , 259 Mich. App. 545, 550 n. 8, 675 N.W.2d 863 (2003) (stating that "[a] Court of Appeals opinion that has been vacated by the majority of the Supreme Court without an expression of approval or disapproval of this Court's reasoning is not precedentially binding").
This Court must also give meaning to the phrase "all of the following circumstances exist," including the petitioner's successfully completing "all conditions of probation" if "imposed for the violation resulting in the prohibition." MCL 28.424(4). This reading is consistent with the language in MCL 28.424(4)(b)(i ) and (ii ), seemingly allowing for multiple fines and multiple terms of imprisonment if imposed for the violation resulting in the prohibition. In this case, for example, an additional term of imprisonment followed the jail term imposed as part of petitioner's initial probationary sentence.
This Court has recognized that MCL 750.224f —and, by logical extension, MCL 28.424 —"aims to protect the public from guns in the hands of convicted felons" because convicted felons are "most likely to use them against the public." People v. Dillard , 246 Mich. App. 163, 170, 631 N.W.2d 755 (2001) (quotation marks and citation omitted). The Legislature could certainly conclude that a convicted felon who cannot abide by probation conditions is more likely to fail to abide by other laws necessary for an ordered society. See id. And although some may disagree with the Legislature's assessment of the relative danger presented by a probation violation, this Court "decline[s] to rewrite the plain statutory language and substitute [its] own policy decisions for those already made by the Legislature." DiBenedetto v. West Shore Hosp. , 461 Mich. 394, 405, 605 N.W.2d 300 (2000). Of course, the Legislature has the prerogative to amend the statute to afford a clear path for ex-felons who violate their conditions of probation to obtain restoration of firearm rights.
Taken to its logical conclusion, petitioner's alternate reading of Subsection (4)(b)(iii ) leads to an odd outcome: denial of firearm-restoration rights for a parolee whose violation results in parole revocation, MCL 791.240a, but a pass for a probationer whose violation results in probation revocation, MCL 771.4. A contrary reading, however, has the indirect benefit of giving convicted felons an incentive to fully comply with the conditions of their probation in the first instance.
Subsection (4)(b)(iii )’s language requires petitioner to "successfully complete[ ] all conditions of probation or parole imposed for the violation resulting in the prohibition." It is undisputed that the Calhoun Circuit Court initially imposed a probationary sentence for petitioner's specified felony conviction along with probationary conditions. MCL 771.1 through MCL 771.3. It is undisputed that petitioner twice violated those probationary conditions before the circuit court revoked his probation and imposed a prison sentence for the violation resulting in the prohibition. MCL 771.4 ; MCL 769.1. Thereafter, the Parole Board imposed a term of parole and parole conditions, MCL 791.234 ; 791.236, for the violation resulting in the prohibition, MCL 791.234 and 791.236, before it discharged petitioner in 2007. In context, the statutory language of MCL 28.424(4)(b)(i ) through (iii ) directs the circuit court to consider whether a petitioner has fulfilled all of the potential sentencing outcomes actually imposed as the result of his specified felony conviction. Petitioner acknowledges that he failed to successfully complete all conditions of probation imposed for his specified felony conviction. His subsequent parole discharge alone does not satisfy the plain language of MCL 28.424(4)(b)(iii ).
However, assuming for the sake of argument that petitioner's earlier failure to successfully complete all of his probation conditions is disregarded, I would nevertheless conclude that the circuit court erred by determining that petitioner had successfully completed all of his parole conditions when he failed to pay restitution. The current record reflects that after petitioner's probation was revoked and the circuit court sentenced him to prison, it also ordered him to pay restitution as a condition of his parole. If ordered by the sentencing court, restitution is a statutorily mandated parole condition. MCL 769.1a(11), MCL 780.766(11), and MCL 791.236(5). See also Rule 791.7730. Although petitioner paid a minimal amount toward satisfying the court-ordered restitution, $7,886.19 remained unpaid. Petitioner's last restitution payment was in 2002, well before the circuit court revoked his probation in 2004. Petitioner does not dispute that he failed to pay the restitution. Instead, petitioner contends that the cited statutes only mandate that restitution be a condition of parole, not that he actually fully pay the ordered restitution. In any event, petitioner asserts that his 2007 discharge from parole demonstrates that he "faithfully performed all of the conditions" of his parole, and at that point, any outstanding restitution abated. MCL 791.242(1) ("If a paroled prisoner has faithfully performed all of the conditions and obligations of parole for the period of time fixed in the order of parole, and has obeyed all of the rules and regulations adopted by the parole board, the prisoner has served the full sentence required. The parole board shall enter a final order of discharge and issue the paroled prisoner a certificate of discharge."); Arkin Distrib. Co. v. Jones , 288 Mich. App. 185, 190, 792 N.W.2d 772 (2010) ("Following discharge from parole, defendant was no longer subject to the jurisdiction of the Department of Corrections, and any remaining portion of defendant's sentence, including the condition that she pay restitution, abated."). The prosecutor responds that petitioner paid no restitution at all and that "[a]n order of restitution ... remains effective until it is satisfied in full." MCL 769.1a(13) ; MCL 780.766(13). The prosecutor maintains that "[t]he right to restitution" for crime victims is a constitutional one, Const. 1963, art. 1, § 24 (1), and that MCL 791.236(5) mandates that a parole order include "a condition to pay restitution...."
"If the defendant is ... paroled ..., any restitution ordered under this section shall be a condition of that ... parole .... [T]he parole board may revoke parole if the defendant fails to comply with the order and if the defendant has not made a good faith effort to comply with the order. In determining whether to revoke ... parole ..., the ... parole board shall consider the defendant's employment status, earning ability, and financial resources, the willfulness of the defendant's failure to pay, and any other special circumstances that may have a bearing on the defendant's ability to pay."
See note 10 of this opinion (setting forth the same language as that in MCL 780.766(11) ).
"The parole order shall contain a condition to pay restitution to the victim of the prisoner's crime ... if the prisoner was ordered to make restitution under the William Van Regenmorter crime victim's rights act ... or the code of criminal procedure[.]"
The circuit court register of actions in the underlying arson case reflects that in September 2017, there was a payment-plan agreement indicating that petitioner was to pay $25 each month.
"[T]he clear language of MCL 791.242(1) merely indicates that the parole board is compelled to release a prisoner from parole where the prisoner has completely complied with all of the rules and conditions imposed by the parole board for the entire duration of his parole period. The statutory language does not otherwise place any limitations on the [Department of Corrections’] authority to discharge a prisoner from parole." People v. Holder , 483 Mich. 168, 175 n.20, 767 N.W.2d 423 (2009).
In order to demonstrate that he was entitled to restoration of his firearm rights, petitioner bore the burden of establishing by clear and convincing evidence that he "successfully completed all conditions of ... parole...." MCL 28.424(4)(b)(iii ). Petitioner acknowledges that his parole order required him to pay restitution, MCL 791.236(5), and that he paid none. Therefore, petitioner did not successfully complete this parole condition.
Accordingly, I agree that the circuit court erred when it granted petitioner's petition to restore his firearm rights.