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In Foster, however, uncontested evidence supported the amount of restitution ordered, and unlike in this case, the defendant never challenged the number.
Summary of this case from People v. MorseOpinion
No. 329992.
04-20-2017
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Michael Eugene FOSTER, Defendant–Appellant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Nichol J. Palumbo, Prosecuting Attorney, for the people. State Appellate Defender (by Jeanice Dagher-Margosian ) for defendant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Nichol J. Palumbo, Prosecuting Attorney, for the people.
State Appellate Defender (by Jeanice Dagher-Margosian ) for defendant.
Before: M. J. Kelly, P.J., and Stephens and O'Brien, JJ.
Stephens, J.Defendant, Michael Eugene Foster, pleaded guilty to two counts of breaking and entering with intent to commit a felony, MCL 750.110, and one count of possession with intent to deliver a controlled substance, MCL 333.7401(2)(b)(i ). Defendant appeals by delayed leave granted the judgment of sentence, which ordered defendant to serve concurrent prison terms of 19 months to 10 years for the breaking and entering convictions, consecutive to a term of 78 months to 20 years for the possession with intent to deliver conviction. Defendant was also ordered to pay a $500 fine for the possession of a controlled substance offense, and, inter alia , restitution in the amount of $419.02 for two dismissed misdemeanor offenses. We affirm in part, vacate in part, and remand to the trial court for correction of the judgment of sentence.I. BACKGROUND
People v. Foster, unpublished order of the Court of Appeals, entered December 7, 2015 (Docket No. 329992).
Defendant does not contest the factual basis of this prosecution. In LC No. 14-008881-FH, defendant pleaded guilty to one count of breaking and entering and stated that around September 21 or 22, 2014, he entered a barn located at a golf course on Cedar Lake Road in Iosco County and "took 11 batteries" after his "co-defendant opened the door." He later sold the batteries for their scrap value. Defendant also pleaded guilty to one count of breaking and entering in LC No. 14-008692-FH and stated that, on June 5, 2014, he entered a garage "[o]n the corner of Jordonville Road and US–23" "in Iosco County" and "me and my co-defendant carried a generator out." In LC No. 15-009012-FH, defendant pleaded guilty to one count of possessing with the intent to deliver the controlled substance of methamphetamine and stated that around December 16, 2014, he "had a substantial amount of Methamphetamine. And we got pulled over, and it was found in the vehicle, and I admitted it was mine." Defendant added that he possessed the methamphetamine for the purpose of "[s]hooting it, smoking it, snorting it. ... Yeah, there was an intent to sell some of it."
Defendant and the prosecution entered a plea agreement on the record. In exchange for defendant's pleas of guilty, the prosecution and defendant agreed that the breaking and entering sentences would be served concurrently to each other and consecutively to the possession with intent to deliver offense and that defendant would be sentenced without consideration of his habitual-offender status to a "max/minimum ... at the bottom of the sentence guidelines" on all three offenses. The parties also agreed that "two misdemeanor Retail Fraud matters in District Court would be dismissed with restitution to be paid in full on those—in addition to the restitution on these files that are being pled guilty to."The trial court informed defendant that breaking and entering is an offense that carries with it a maximum penalty of ten years' incarceration for each conviction and that possession with intent to deliver the controlled substance of methamphetamine carries with it a maximum penalty of twenty years' incarceration, a $25,000 fine or both. The trial court also informed defendant that the court was not bound by the plea agreement at sentencing and that, if the court imposed a sentence different from that agreed to, then defendant could withdraw his pleas. The court accepted all three pleas and referred defendant to the Department of Corrections for preparation of a presentence investigation report (PSIR).
At the sentencing hearing, the court followed the recommendations of the Department of Corrections as provided in the PSIR. In LC No. 14-008692-FH, defendant was sentenced as previously stated and ordered to pay restitution in the amount of $232.19 to Helen Bero jointly and severally with codefendants Allen Preston and Zachary Williams. Defendant was further ordered to pay a $68 minimum state cost, a crime victims assessment in the amount of $130, $1,100 in court costs, and a $500 fine. In LC No. 14-008881-FH, defendant was sentenced as previously stated and ordered to pay restitution in the amount of $887.52 to Lakewood Shores Golf Resort jointly and severally with codefendant Paul Sivrais. Defendant was also ordered to pay a $68 minimum state cost and a crime victims assessment in the amount of $130. In LC No. 15-40-SM, the case involving the dismissed misdemeanors, defendant was ordered to pay restitution in theamount of $223.76 to Walmart jointly and severally with codefendant Valerie Foster and restitution in the amount of $195.26 to Walmart. In LC No. 15-009012-FH, defendant was sentenced as previously stated and ordered to pay a $68 minimum state cost and a crime victims assessment in the amount of $130.
The restitution ordered for the misdemeanor offenses is included in the judgment of sentence for LC No. 14-008881-FH.
The trial court asked defendant and his counsel if they were "aware of any additions, deletions, or corrections that need to be made with regard to any of the factual matters contained within the [presentence] report." Defense counsel indicated that he did not have any changes. The prosecution noted two minor changes. Additionally, the prosecution, defendant, and defendant's counsel all stated that they did not have any objection to the scoring of the sentencing guidelines. The trial court then sentenced defendant as recommended by the Department of Corrections.
II. THE VALIDITY OF THE FINE
Defendant first challenges the $500 fine imposed by the court in LC No. 14-008692-FH, the case involving the breaking and entering conviction related to the generator theft. Defendant contends that because the fine was not a part of his sentence recommendation and he was not given the opportunity to withdraw his plea after the fine was imposed, the fine should be vacated. We agree.
A. STANDARD OF REVIEW
Defendant did not challenge at sentencing the trial court's authority to order the fine. This Court reviews unpreserved claims of error under the plain error rule. People v. Carines , 460 Mich. 750, 763, 597 N.W.2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id . (citation omitted).
B. ANALYSIS
"If the prosecuting attorney and the defendant choose to negotiate, and in fact reach a sentence agreement or sentence recommendation, the court shall require disclosure in open court of the details of the agreement at the time the plea is offered." People v. Killebrew , 416 Mich. 189, 206, 330 N.W.2d 834 (1982).
Although a written plea agreement is not included in the record on appeal, the trial court appeared to treat the plea agreement as a sentence recommendation rather than a sentence agreement. See People v. Killebrew, 416 Mich. 189, 206–208, 330 N.W.2d 834 (1982) (explaining the difference between a sentence agreement and a sentence recommendation). When the trial court accepted defendant's pleas, it stated that it was not bound by the "sentence agreement." Because acceptance of a sentence agreement binds the trial court to the agreed-upon sentence, see id. at 206–207, 330 N.W.2d 834, whereas a sentence recommendation allows a trial court to accept the plea but impose a different sentence than that recommended by the prosecution under the prosecution's agreement with the defendant, see id. at 207–208, 330 N.W.2d 834, the trial court's statement that it would accept the plea but not be bound by the agreement, indicated that the pleas were based on a sentence recommendation.
In Killebrew , our Supreme Court held that when a plea agreement contains a nonbinding prosecutorial sentence recommendation,
the judge may accept the guilty plea ..., yet refuse to be bound by the recommended sentence. The judge retains his freedom to choose a different sentence. However, the trial judge must explain to the defendant that the recommendation
was not accepted by the court, and state the sentence that the court finds to be the appropriate disposition. The court must then give the defendant the opportunity to affirm or withdraw his guilty plea. [Id . at 209–210.]
No written plea agreement is included in the record on appeal. According to defendant, his counsel, and the prosecution at the plea hearing, defendant agreed to plead guilty to the three felonies and pay restitution on those charges and on two misdemeanor retail fraud charges in exchange for the dismissal of the two misdemeanors. In addition, defendant understood that no habitual-offender notices were to be filed, and he was to be sentenced at the bottom of the sentencing guidelines. The record contains no indication that a fine was contemplated by the agreement.
At the plea hearing, the trial court informed defendant that it was not bound by the "sentence agreement," that the offense of possession of a controlled substance with intent to deliver carried with it a maximum fine of $25,000, and that defendant would be allowed to withdraw his plea in the event the trial court deviated from the agreement at sentencing. However, the sentencing record indicates that the trial court imposed a $500 fine in connection with LC No. 14-008692-FH, involving one of the a breaking and entering charges, and that thereafter, the court did not afford defendant an opportunity to withdraw his plea. Because the fine imposed was not part of the sentencing agreement and not contemplated by the parties in relation to the breaking and entering charge for which it was assessed, we conclude that the trial court plainly erred by not giving defendant an opportunity to affirm or withdraw his plea after the fine was imposed. Accordingly, we vacate that portion of the judgment of sentence in LC No. 14-008692-FH that requires defendant to pay a $500 fine. People v. Morse , 480 Mich. 1074, 744 N.W.2d 169 (2008).
III. THE VALIDITY OF THE RESTITUTION
Defendant next challenges the trial court's order of restitution for the misdemeanor offenses on the grounds that it ordered restitution for uncharged conduct, that the restitution was not proportionate to defendant's participation in the crimes, and that restitution for uncharged conduct not submitted to a jury violated defendant's Sixth and Fourteenth Amendment rights. US Const., Ams VI and XIV.
A. STANDARD OF REVIEW
Defendant did not challenge the court's authority to order restitution related to the dismissed misdemeanor charges or to impose restitution in general in the trial court. "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." People v. McKinley , 496 Mich. 410, 414–415, 852 N.W.2d 770 (2014). "We review a court's calculation of a restitution amount for an abuse of discretion, People v. Gubachy , 272 Mich.App. 706, 708, 728 N.W.2d 891 (2006), and its factual findings for clear error, People v. Fawaz , 299 Mich.App. 55, 64, 829 N.W.2d 259 (2012)." People v. Corbin , 312 Mich.App. 352, 361, 880 N.W.2d 2 (2015). However, this Court reviews unpreserved claims of error under the plain error rule. Carines , 460 Mich. at 763, 597 N.W.2d 130. "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id . (citation omitted).
A criminal defendant need not "take any special steps to preserve the question of the proportionality of her sentence." People v. Cain , 238 Mich.App. 95, 129, 605 N.W.2d 28 (1999). This Court reviews the proportionality of a trial court's sentence for an abuse of discretion. People v. Paquette , 214 Mich.App. 336, 344–345, 543 N.W.2d 342 (1995). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. People v. Cross , 281 Mich.App. 737, 739, 760 N.W.2d 314 (2008).
B. ANALYSIS
1. RESTITUTION AS PART OF DEFENDANT'S SENTENCE RECOMMENDATION
Defendant first argues that according to McKinley , that he cannot be ordered to pay restitution for a charge that was dismissed. In McKinley , our Supreme Court held 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." McKinley , 496 Mich. at 419–420, 852 N.W.2d 770. Defendant posits that he cannot be ordered to pay restitution in connection with his two dismissed retail fraud charges because those charges did not result in a conviction. This is an issue of first impression. Defendant's circumstance is different from that presented in McKinley because he agreed to pay the restitution he now challenges in exchange for the charges to be dismissed.
There are two main statutes that govern restitution in Michigan: MCL 780.766 (part of the [Crime Victim's
Rights Act (CVRA), MCL 780.751 et seq . ] ) and MCL 769.1a
the general restitution statute).[ ] Both statutes begin by defining "victim" as "an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime." The statutes then declare that sentencing courts "shall order" a defendant convicted of a crime to "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." [ People v. Garrison , 495 Mich. 362, 367, 852 N.W.2d 45 (2014).]
MCL 769.1a was first adopted by 1985 PA 89, effective July 10, 1985. MCL 780.766 was enacted by 1985 PA 87, effective October 9, 1985. People v. Persails, 192 Mich.App. 380, 382, 481 N.W.2d 747 (1991).
MCL 769.1a was first adopted by 1985 PA 89, effective July 10, 1985. MCL 780.766 was enacted by 1985 PA 87, effective October 9, 1985. People v. Persails, 192 Mich.App. 380, 382, 481 N.W.2d 747 (1991).
MCL 769.1a and MCL 780.766 contain nearly identical mandates. MCL 769.1a(2) provides that
when sentencing a defendant convicted of a felony, misdemeanor, or ordinance violation, 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.
Likewise, under MCL 780.766(2),
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....[ ]
The following text is included in MCL 780.766(2), but not in MCL 769.1a(2) : "For an offense that is resolved by assignment of the defendant to youthful trainee status, by a delayed sentence or deferred judgment of guilt, or in another way that is not an acquittal or unconditional dismissal, the court shall order the restitution required under this section."
The following text is included in MCL 780.766(2), but not in MCL 769.1a(2) : "For an offense that is resolved by assignment of the defendant to youthful trainee status, by a delayed sentence or deferred judgment of guilt, or in another way that is not an acquittal or unconditional dismissal, the court shall order the restitution required under this section."
Our Legislature enacted the CVRA and its component part, MCL 780.766,
as part of a movement intended to balance the rights of crime victims and the rights of criminal defendants. One aim of [the CVRA] was "to enable victims to be compensated fairly for their suffering at the hands of convicted offenders." The Legislature's statutory direction to order defendants to pay complete, entire, and maximum restitution effectuates this goal of fair compensation. [ Garrison , 495 Mich. at 368, 852 N.W.2d 45.]
MCL 769.1a and MCL 780.766 previously had permissive language allowing, but not requiring, the trial court to award restitution to crime victims; however, these statutes were amended in 1993 to require trial courts to award restitution to crime victims. Id . at 373, 852 N.W.2d 45 ; see also 1993 PA 343 (substituting "shall" for "may" in MCL 769.1(a) ); 1993 PA 341 (substituting "shall" for "may" in MCL 780.766(2) ).
The record is unclear whether the trial court awarded restitution under MCL 769.1a or MCL 780.766. The trial court did not mention any specific statute at trial or in its judgment. In any event, because MCL 769.1a and MCL 780.766 contain nearly identical language, a trial court generally would have little reason to differentiate between the two when awarding restitution to a crime victim. Indeed, this Court and our Supreme Court have often ruled simultaneously on the application of the two statutes. See, e.g., Persails, 192 Mich.App. at 383, 481 N.W.2d 747 (1991) ; Garrison, 495 Mich. at 372–373, 852 N.W.2d 45.
Prior to McKinley , the courts of this state held that MCL 769.1a and MCL 780.766 grant the trial court broad authority to order restitution in excess of what might seem appropriate for the crime of which a defendant was convicted so long as the loss occurred within the same course of conduct as the conduct underlying the conviction. The scope and breadth of the definition of "course of conduct" encompassed both criminal conduct involving multiple victims and multiple crimes involving the same victim. See People v. Littlejohn , 157 Mich.App. 729, 731–732, 403 N.W.2d 215 (1987) (holding that when the defendant was convicted of one count of embezzlement but admitted to previous instances of embezzlement against the same retail establishment, the trial court was within its authority to order the defendant to pay restitution for all instances of embezzlement); People v. Persails , 192 Mich.App. 380, 383, 481 N.W.2d 747 (1991) (holding that when the defendant was convicted of one count of malicious destruction of property but had engaged in "several nearly identical offenses within approximately one month," the court could award restitution to victims of the uncharged conduct); People v. Bixman , 173 Mich.App. 243, 246, 433 N.W.2d 417 (1988) (holding that the defendant who pleaded guilty to writing a nonsufficient funds check of $1,400 could be ordered to pay more than $17,000 in restitution for writing other nonsufficient funds checks).
The Supreme Court, in McKinley , recently addressed and narrowed the broad definitions of "course of conduct" and "arising out of," stating that " MCL 780.766(2) does not authorize trial courts to impose restitution based solely on uncharged conduct." McKinley , 496 Mich. at 424, 852 N.W.2d 770 (emphasis added). We are keenly aware of the Court's use of the word "solely" as a qualifier on the court's proscription against imposing restitution in such circumstances, just as we are mindful of its clear intent that previous precedent "should be overruled to the extent that it 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.’ " Id . (citation omitted). The Court defined "uncharged conduct" as "criminal conduct that the defendant allegedly engaged in that was not relied on as a basis for any criminal charge and therefore was not proved beyond a reasonable doubt to a trier of fact." Id . at 413 n. 1, 852 N.W.2d 770. Therefore, "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." Id . at 420, 852 N.W.2d 770. The McKinley Court did not specifically address the application of its rule to MCL 769.1a. However, because MCL 769.1a(2) contains language identical to MCL 780.766(2) and MCL 769.1a(2) could be considered the precedential equal of MCL 780.766(2), the rule set forth in McKinley for MCL 780.766(2) should extend to MCL 769.1a(2).
The McKinley Court specifically overruled its previous interpretation of "course of conduct" as articulated in People v. Gahan, 456 Mich. 264, 270, 571 N.W.2d 503 (1997), in which the Court determined that the Legislature's use of the term "course of conduct" in MCL 780.766 should be given broad application based on this Court's interpretation of MCL 771.3(1)(e). McKinley, 496 Mich. at 418 n. 8, 852 N.W.2d 770. The McKinley Court further noted that MCL 769.1a(2) was identical to MCL 771.3(1)(e)"for all relevant purposes." Id. In doing so, the McKinley Court suggested that the precedent resulting from its opinion should not be limited to MCL 780.766.
McKinley , however, has yet to be applied to a case like this one in which the defendant was charged for crimes that were dismissed under a plea agreement when an agreement to pay restitution was a condition of the plea. We do not find that either the rule announced in McKinley , or its analytical framework, renders unconstitutional a situation in which restitution is part of a negotiated plea agreement. The facts in McKinley were very different from those in the instant appeal. In McKinley ,
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,
In People v. McKinley, unpublished opinion per curiam of the Court of Appeals, issued May 16, 2013 (Docket No. 307360), p. 1, 2013 WL 2120278, this Court vacated the defendant's larceny conviction but otherwise affirmed his convictions and sentences. 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 8–9.
In People v. McKinley, unpublished opinion per curiam of the Court of Appeals, issued May 16, 2013 (Docket No. 307360), p. 1, 2013 WL 2120278, this Court vacated the defendant's larceny conviction but otherwise affirmed his convictions and sentences. 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 8–9.
and inducing a minor to commit a felony .... 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. [ McKinley , 496 Mich. at 413–414, 852 N.W.2d 770.]
When the McKinley Court determined that a trial court could not award restitution for uncharged conduct under MCL 780.766(2), it specifically declined to address the constitutional issue raised in the appeal. The McKinley Court's grant of leave was limited to: " ‘(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.’ " McKinley , 496 Mich. at 414, 852 N.W.2d 770, quoting McKinley , 495 Mich. 897 (2013). The McKinley Court avoided the latter constitutional question and rather determined that MCL 780.766(2) did not grant trial courts authority to order restitution for uncharged conduct. The Court explained in a footnote:
Notably, and we believe further supporting our decision not to reach the constitutional issue, the apparent reason other courts have not been asked to address the [constitutional] argument that the defendant raises here is because those courts have (seemingly uniformly) construed
their restitution statutes as allowing the assessment of restitution based only on convicted conduct. See, e.g., Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) ; State v. Clapper, 273 Neb. 750, 758, 732 N.W.2d 657 (2007) ; Commonwealth v. McIntyre, 436 Mass. 829, 835 n. 3, 767 N.E.2d 578 (2002) (collecting cases applying various standards requiring a causal relationship between the restitution award and the conviction). Accordingly, we are aware of no court that has reached the argument defendant preserved below: whether Apprendi [v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ] and its progeny bar the assessment of restitution based on uncharged conduct. See also
United States v. Sharma, 703 F.3d 318, 323 (CA 5, 2012) ("The [Mandatory Victim Restitution Act, 18 USC 3663A ] limits restitution to the actual loss directly and proximately caused by the defendant's offense of conviction. An award of restitution cannot compensate a victim for losses caused by conduct not charged in the indictment or specified in a guilty plea, or for losses caused by conduct that falls outside the temporal scope of the acts of conviction."). [ McKinley , 496 Mich. at 417 n. 6, 852 N.W.2d 770.]
None of the cases cited in McKinley addresses the issue whether a defendant can affirmatively agree to pay restitution related to dismissed conduct. The multijurisdictional survey was offered to support the decision to preclude restitution for uncharged acts on a purely statutory basis. The Court noted in the footnote that other state courts had taken the same approach and declined to address the application and implications of Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to their restitution processes. The federal case cited also declined to make a constitutional ruling. In Sharma, 703 F.3d at 323, the court vacated a restitution order imposed on the defendants for fraudulent billing to various insurers after a plea agreement under the federal Mandatory Victim Restitution Act (MVRA), 18 USC 3663A. The Sharma defendants objected to the amount of restitution that compensated the victims for more than their actual losses resulting from the charged conduct. Id . at 321. The court cited a number of legal and factual errors in the award including the fact that the restitution awarded compensation for conduct that predated the charged conspiracy; in other words, restitution was awarded for uncharged conduct. Id . at 323.
While not addressed by the Sharma court or noted in the McKinley footnote, we are aware that the MVRA specifically provides that "[t]he court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense." 18 USC 3663A(a)(3). This allows a defendant to agree to compensate persons for uncharged conduct. It is a reasonable inference that by citing Sharma our Court was aware of the possibility that a defendant might enter into a stipulation to pay restitution that exceeded the losses resulting from charged conduct when it pointedly used the word "solely" in its discussion of the limits of court authority in Michigan. At the very least, aware of the possibility under the MVRA, the Court declined to criticize the option.
We share the McKinley Court's concern that allowing a trial court to order restitution for uncharged conduct would offend the defendant's due process right to have the prosecution prove to a trier of fact every element of the charge beyond a reasonable doubt. See McKinley , 496 Mich. at 413 n. 1, 852 N.W.2d 770 ; People v. Goss (After Remand) , 446 Mich. 587, 596, 521 N.W.2d 312 (1994) (opinion by LEVIN , JJ.). However, we do not find this right implicated when the defendant expressly agrees to pay restitution to receive the benefit of a bargain struck with the prosecution. In this case, defendant's conduct at Walmart formed the basis of two counts of retail fraud for which defendant was charged in district court. Defendant's agreement to have those misdemeanor charges dismissed but still pay the restitution owed to Walmart was "[i]n essence, ... the act of self-conviction by the defendant in exchange for various official concessions." Killebrew , 416 Mich. at 199, 330 N.W.2d 834, citing Alschuler, Plea Bargaining and Its History, 13 Law & Society Rev. 211, 213 (1979). When a conviction is exchanged for restitution, a defendant intentionally relinquishes his right to have the prosecution prove every element of the charge beyond a reasonable doubt.
"[W]aiver is the ‘intentional relinquishment or abandonment of a known right.’ " United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
2. PROPORTIONALITY
Defendant next argues that the trial court's order of restitution violated the principle of proportionality. We disagree.
A crime victim's right to "[r]estitution is afforded both by statute and by the Michigan Constitution." People v. Newton , 257 Mich.App. 61, 68, 665 N.W.2d 504 (2003). See also Const. 1963, art. 1, § 24. The Crime Victim's Rights Act mandates that
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. [ MCL 780.766(2).]
MCL 780.766(1) defines a victim as "an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime." And, under certain circumstances, a victim means "a sole proprietorship, partnership, corporation, association, governmental entity, or any other legal entity that suffers direct physical or financial harm as a result of a crime." Id .
"[I]n determining the proper amount of restitution, the court shall consider the amount of loss sustained by the victim, 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 deems appropriate." People v. Avignone , 198 Mich.App. 419, 422, 499 N.W.2d 376 (1993). See also MCL 780.767(1). Traditionally, this Court has reviewed orders of restitution to determine if the amount was authorized by statute, see, e.g., People v. Gaines , 306 Mich.App. 289, 323 n. 10, 856 N.W.2d 222 (2014) ; whether the amount of restitution ordered was proved by a preponderance of the evidence, see, e.g., Gubachy , 272 Mich.App. at 709, 728 N.W.2d 891, 893 (2006) ; or whether the defendant had the financial ability to pay that amount, see, e.g., People v. Hart , 211 Mich.App. 703, 707, 536 N.W.2d 605 (1995).
Defendant does not challenge the restitution order in this case on any of these grounds. Rather, defendant argues that the order violates the principle of proportionality set forth in People v. Milbourn , 435 Mich. 630, 636, 461 N.W.2d 1 (1990), because the order awards joint and several restitution rather than individually fixing an amount for which each defendant would be responsible. Milbourn held that a trial court abuses its discretion when it imposes a sentence that is not "proportionate to the seriousness of the circumstances surrounding the offense and the offender." Id . We conclude that a Milbourn analysis is inapplicable here."A central proposition to the holding of Milbourn was that discretionary sentencing decisions are subject to review by the appellate courts to ensure that the exercise of that discretion has not been abused." People v. Norfleet , 317 Mich.App. 649, 663, 317 N.W.2d 195 (2016). The majority of appellate claims under Milbourn concern whether a trial court's imposition of a sentence of imprisonment that departs from the sentencing guidelines violates the principle of proportionality. See, e.g., People v. St. John , 230 Mich.App. 644, 649, 585 N.W.2d 849 (1998) ; People v. Steanhouse , 313 Mich.App. 1, 46–48, 880 N.W.2d 297 (2015) (holding that appellate courts must judge departures from the sentencing guidelines based on the Milbourn proportionality standard), lv gtd 499 Mich. 934, 879 N.W.2d 252 (2016) ; People v. Shank , 313 Mich.App. 221, 225, 881 N.W.2d 135 (2015), app. held in abeyance 882 N.W.2d 528 (2016). "[O]ur Legislature, in setting forth a range of appropriate punishments for criminal offenses, has entrusted sentencing courts with the responsibility of selecting the appropriate punishment from statutorily authorized sentencing ranges. These sentencing ranges embody the ‘principle of proportionality’ because they allow a sentencing judge to tailor the sentence to the particular offense and offender at issue." People v. Hyatt , 316 Mich.App. 368, 422–423, 891 N.W.2d 549 (2016). "The limit on the judicial discretion to be exercised when imposing penalties is that the punishment should be proportionate to the offender and the offense." Id . at 423, 891 N.W.2d 549
The sentencing considerations present in Milbourn are not applicable here. In the case of a sentence involving imprisonment, a court may exercise discretion by choosing from a range of possible years. In the case of a sentence involving restitution, the court is not granted discretion to order that the defendant be responsible for any amount less than full restitution. See People v. Garrison , 495 Mich. 362, 373, 852 N.W.2d 45 (2014). The plain reading of MCL 780.766(2) clearly provides that the court shall order "that the defendant make full restitution to any victim...." (Emphasis added). When our Legislature enacted MCL 780.766(2), it made restitution to crime victims a mandatory part of a convicted criminal defendant's sentence. Defendant's theory of individualizing, and therefore limiting, the total amount of restitution owed by each person involved is not authorized by the statute because each defendant can be ordered to pay all of the restitution. Additionally, the principle of proportionality is concerned with whether the punishment is proportionate to the crime, Hyatt , 316 Mich.App. at 423, 891 N.W.2d 549, and our Supreme Court has held that restitution is not punishment, nor is it a penalty.
People v Grant, 455 Mich. 221, 230 n 10; 565 N.W.2d 389 (1997).
In People v. Grant , 455 Mich. 221, 233, 244, 565 N.W.2d 389 (1997), our Supreme Court approved an order of restitution making the codefendants jointly and severally liable for restitution payments. Although our Supreme Court was not asked to determine whether joint and several liability violated the principle of proportionality in Grant , our Supreme Court had already determined by the time Grant was decided that proportionality was required for all sentences. Milbourn , 435 Mich. at 636. Additionally, ten years after Grant was decided, our Supreme Court issued an order on an application for leave to appeal that remanded the case "for correction of the judgments of sentence to reflect that the restitution ordered shall be joint and several with the codefendant." People v. Slotkowski , 480 Mich. 852, 737 N.W.2d 699 (2007). In determining the proportionality of a codefendant's sentence of incarceration, this Court has held that when a trial court sentences a codefendant within the sentencing guidelines range, even to the statutory maximum for that offense, the codefendant's "minimum culpability is not an unusual circumstance that overcomes the presumption of proportionality." St. John , 230 Mich.App. at 650, 585 N.W.2d 849. Also, our statutes do not apportion criminal liability based on a codefendant's degree of participation in the crime. Even one who merely aids a crime he does not personally commit "shall be punished as if he had directly committed such offense." MCL 767.39. Although restitution awards are not contemplated by the sentencing guidelines because restitution is a mandatory part of a convicted defendant's sentence, we find this rule applies equally to restitution orders. See People v. Bell , 276 Mich.App. 342, 350, 741 N.W.2d 57 (2007) ( MCL 767.39 applied to MCL 780.766(2)"makes clear that [the defendant] must pay restitution for her crime just as if she were a principal.").
Accordingly, we conclude that a trial court may order a codefendant to pay the entirety of the restitution owed to a crime victim without violating the principle of proportionality.
3. CONSTITUTIONALITY
Defendant next argues that he was "subject to an amount of restitution that is not factually supported by either an admission under oath, or a jury finding," as is required under the Sixth and Fourteenth Amendments of the Constitution of the United States. We disagree.
The Sixth Amendment of the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ....
The Sixth Amendment applies to prosecutions under state law via the Fourteenth Amendment of the United States Constitution. In Apprendi , 530 U.S. at 490, 120 S.Ct. 2348, "the United States Supreme Court announced the general Sixth Amendment principle [that] ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ " People v. Lockridge , 498 Mich. 358, 370, 870 N.W.2d 502 (2015). In Alleyne v. United States , 570 U.S. 99, ––––, 133 S.Ct. 2151, 2160, 186 L.Ed.2d 314 (2013), the United States Supreme Court held that, in mandatory sentencing schemes, " ‘fact[s] increasing either end of the [sentencing guidelines] range produce[ ] a new penalty’ " and are subject to the rule set forth in Alleyne . Lockridge , 498 Mich. at 372, 870 N.W.2d 502.
In Lockridge , 498 Mich. at 389, 870 N.W.2d 502, our Supreme Court "concluded that Michigan's sentencing guidelines violate the Sixth Amendment rule from Apprendi ." To remedy this violation, the Court severed MCL 769.34(2) to the extent that it rendered the sentencing guidelines mandatory. Id. at 391, 870 N.W.2d 502.
In Southern Union Co v. United States , 567 U.S. 343, 132 S.Ct. 2344, 2348–2349, 183 L.Ed.2d 318 (2012), the Supreme Court of the United States held that the rule from Apprendi applies to criminal fines. The Supreme Court further stated that "[c]riminal fines ... are penalties inflicted by the sovereign for the commission of offenses," and therefore, "while judges may exercise discretion in sentencing, they may not inflict punishment that the jury's verdict alone does not allow." Id . at ––––, 132 S.Ct. at 2350 (quotation marks and citation omitted). In People v. Corbin , 312 Mich.App. 352, 372, 880 N.W.2d 2 (2015), this Court considered Southern Union in the context of restitution and held that "[a] criminal fine and restitution are not synonymous...." The Corbin Court further held that judicial fact-finding as to the amount owed does not implicate a defendant's Sixth Amendment right to a jury trial and noted that "[n]othing in Lock ridge suggests that its reasoning encompasses restitution orders entered in conjunction with sentencing." Id . at 373, n. 5, 880 N.W.2d 2.
In any event, this Court has consistently held that the focus of restitution is on the victims' losses not on punishing criminal defendants. In People v. Allen , 295 Mich.App. 277, 282, 813 N.W.2d 806 (2012), this Court held that "with the Crime Victim's Rights Act, the Legislature plainly intended to shift the burden of losses arising from criminal conduct—as much as practicable—from crime victims to the perpetrators of the crimes; thus, it is remedial in character ...." (Quotation marks and citation omitted.) See also People v. Fawaz , 299 Mich.App. 55, 65, 829 N.W.2d 259 (2012). Similarly, in Newton , 257 Mich.App. at 68, 665 N.W.2d 504, this Court held that "[t]he purpose of restitution is to allow crime victims to recoup losses suffered as a result of criminal conduct." (Quotation marks and citation omitted.) See also People v. Crigler , 244 Mich.App. 420, 423, 625 N.W.2d 424 (2001). In Gubachy , 272 Mich.App. at 713, 728 N.W.2d 891, this Court reiterated that the focus of restitution is not on the defendant's actions but rather on "what a victim lost because of the defendant's criminal activity."
Accordingly, because a restitution order is not a penalty, the Sixth Amendment protections recognized in Apprendi do not apply. Therefore, defendant is not entitled to have the order of restitution vacated on this ground.IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant lastly argues that his counsel was ineffective for failing to object to the imposition of the $500 fine and the order of restitution.
A. STANDARD OF REVIEW
Defendant did not move the trial court for a new trial on the grounds of ineffective assistance of counsel or request an evidentiary hearing to further develop that issue; therefore, this issue is unpreserved. See People v. Sabin (On Second Remand ), 242 Mich.App. 656, 658, 620 N.W.2d 19 (2000).
When a defendant fails to request a Ginther hearing or move for a new trial in the matter, this Court's "review of this issue is limited to mistakes apparent on the appellate record." People v. Davis , 250 Mich.App. 357, 368, 649 N.W.2d 94 (2002). "If the record does not contain sufficient detail to support defendant's ineffective assistance claim, then he has effectively waived the issue." Id .
People v. Ginther, 390 Mich. 436, 443–444, 212 N.W.2d 922 (1973).
B. ANALYSIS
Under the Sixth Amendment of the United States Constitution, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." The right to counsel plays a crucial role in the Sixth Amendment's guarantee of a fair trial by ensuring that the defendant has access to the "skill and knowledge" necessary to respond to the charges against him or her. Strickland v. Washington , 466 U.S. 668, 685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The right to counsel also encompasses the right to the effective assistance of counsel." People v. Pubrat , 451 Mich. 589, 594, 548 N.W.2d 595 (1996). See also Strickland , 466 U.S. at 686, 104 S.Ct. 2052.
See also Const. 1963, art. 1, § 20. Our state Constitution's guarantee of the right to counsel is coextensive with the Sixth Amendment's guarantee of the right to counsel. People v. Pickens, 446 Mich. 298, 302, 521 N.W.2d 797 (1994).
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Under Strickland , 466 U.S. at 687, 104 S.Ct. 2052, reversal of a conviction is required when "counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment" and the errors prejudiced the defendant. Accordingly, a defendant requesting reversal of an otherwise valid conviction bears the burden of proving that "(1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel's unprofessional errors, the outcome of the proceedings would have been different." Sabin , 242 Mich.App. at 659, 620 N.W.2d 19 (2000).
To prove the first prong, "[t]he defendant must overcome a strong presumption that counsel's assistance constituted sound trial strategy." People v. Stanaway , 446 Mich. 643, 687, 521 N.W.2d 557 (1994). "This Court does not second-guess counsel on matters of trial strategy, nor does it assess counsel's competence with the benefit of hindsight." People v. Russell , 297 Mich.App. 707, 716, 825 N.W.2d 623 (2012). Moreover, counsel is not ineffective for failing to make a futile motion. Sabin , 242 Mich.App. at 660, 620 N.W.2d 19.
Regarding the $500 fine, defendant's controlled substance conviction carried with it a maximum penalty of $25,000 and the plea agreement for all three felonies included the dismissal of two misdemeanor charges while recommending sentencing at the guidelines minimum. The $500 fine was not mentioned in the plea agreement. Defendant would have forgone the benefits of his plea if he had withdrawn it. To the extent that counsel may have advised defendant about the plea, we see not prejudice to defendant as a result. Further, because defendant has not shown that the trial court erred by ordering him to pay restitution, any motion defense counsel could have made with regard to that order would have been futile. Therefore, defendant's trial counsel was not constitutionally deficient.
The $500 fine is vacated in accordance with our reasoning in Part II of this opinion. We remand this matter for the trial court to correct the judgment of sentence in LC No. 14-008692-FH by deleting the $500 fine. In all other respects, the court's order of restitution is affirmed. We do not retain jurisdiction.
M. J. Kelly, P.J., and O'Brien, J., concurred with Stephens, J.