Opinion
No. 339071
07-24-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MOLLY KATHLEEN OOSTEMA, Defendant-Appellant.
UNPUBLISHED Kent Circuit Court
LC No. 12-007065-FH Before: HOEKSTRA, P.J., and MURPHY and MARKEY, JJ. PER CURIAM.
In October 2012, defendant pleaded guilty to third-degree home invasion, MCL 750.110a(4). The trial court sentenced defendant to three years' probation under the Holmes Youthful Trainee Act, MCL 762.14, and defendant was also ordered to pay $20,000 in restitution to the victims of the crime. Defendant appeals by leave granted the trial court's denial of her motion to correct the amount of restitution. Because defendant's motion to correct an invalid sentence under MCR 6.429 was untimely and defendant failed to offer "new information" warranting a modification of restitution under MCL 780.766(22), we affirm.
People v Oostema, unpublished order of the Court of Appeals, entered October 12, 2017 (Docket No. 339071).
In July 2012, defendant participated in a home invasion with six other individuals. In October 2012, defendant pleaded guilty to third-degree home invasion. In the presentence investigation report (PSIR), restitution in the amount of $20,000 was recommended. As the basis for this amount, the PSIR indicated that one of defendant's co-conspirators had been ordered to pay $20,000 in restitution and that the victims' "initial estimate" of damages "is somewhere between $15,000 and $20,000." In December 2012, the trial court sentenced defendant and ordered defendant to pay restitution in the amount of $20,000, which was to be assessed jointly and severally with the other participants in the home invasion. At sentencing, the trial court made the following remark regarding restitution:
All I know with regard to the last point is that when the first presentence investigations came in, the enormity of loss and damage to the [victims] was
significant and was assessed at $20,000. But I will say of record for [defendant] and for any other co-defendant, all of whom, whether on probation or [in] prison, have the right to a restitution hearing. It may be that this matter is greater than the actual amount.Following this remark, the trial court also indicated that it would treat the issue of restitution as "preserved." However, defendant offered no challenge to the amount of restitution at sentencing and, for a period of four years, defendant made no request for a restitution hearing. In October 2014, after receiving an updated report from the Department of Corrections, the trial court amended the restitution that had been ordered, keeping the amount at $20,000, but specifying that $8,088.60 would be paid to the homeowners and $11,911.40 would be paid to Auto-Owners Insurance Company.
In December 2016, defendant filed a motion for a restitution hearing. Defendant emphasized that the prosecutor bore the burden of proving a victim's loss by a preponderance of the evidence, and defendant asserted that the amount of restitution was arbitrarily set at $20,000 without evidence to support this figure. According to defendant, the homeowners were reimbursed by their insurance company, meaning that the victims' only actual loss was $1,000 paid as an insurance deductible. The trial court denied the request for a restitution hearing, concluding that it lacked jurisdiction to hold a restitution hearing at that time.
In June 2017, defendant filed another motion, which she titled as a motion to correct an invalid sentence. Defendant maintained that an arbitrary amount of restitution constituted an invalid sentence that could be corrected at any time. Defendant again argued that the victims' actual loss amounted to $1,000 that the victims had paid as an insurance deductible. Defendant also maintained that she was only responsible for 1/7 of this amount, meaning that she believed her amount of restitution should be set at $142.86. In connection with her motion, defendant provided the trial court with insurance documents dated October 2012, which showed payments made to the victims from their insurance company. Defendant also attached a victim impact statement from November 2012, in which one of the homeowners described the couple's losses, which included a camera, jewelry, broken windows, damage to wood floors and furniture. The victim estimated the damages to be in "excess of $15,000," and the victim noted that the couple had submitted insurance claims and paid a deductible of $1,000.
Notably, at the hearing on her motion, defendant argued that she had two avenues of relief available: (1) a motion to correct an invalid sentence under MCR 6.429 and (2) a motion to amend an order of restitution under MCL 780.766(22). In the trial court, the prosecutor conceded that there was no time limit that would prevent a defendant from seeking to amend a restitution order under MCL 780.766(22), but the prosecutor maintained that defendant had not made a showing that amendment was warranted in this case. Following the hearing, the trial court issued a written opinion and order. The trial court did not directly address MCL 780.766(22). Instead, the trial court treated defendant's motion as a motion to correct an invalid sentence under MCR 6.429. Under MCR 6.429, the trial court concluded that the applicable time limit for defendant to file a motion to correct an invalid sentence had passed and that defendant was now limited to the relief available under MCR 6.500. Thereafter, defendant filed an application for leave to appeal, which we granted.
On appeal, defendant again argues that the amount of restitution in this case was arbitrary. According to defendant, there is no record evidence to support restitution in the amount of $20,000. Instead, defendant contends that "new" information, consisting of the victim impact statement, establishes that the victim's out-of-pocket loss was only $1,000. Relying exclusively on MCL 780.766(22), defendant argues that the trial court erred by refusing her request to amend the restitution amount. We disagree.
In the trial court, defendant argued that she had two avenues for relief: (1) MCR 6.429 and (2) MCL 780.766(22). Although defendant raised the issue, the trial court did not address or decide defendant's arguments relating to MCL 780.766(22), meaning that this issue is unpreserved. See People v Danto, 294 Mich App 596, 605; 822 NW2d 600 (2011). Nevertheless, we will consider the MCL 780.766(22) issue because the lower court record contains all the facts necessary to resolve the matter. See People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). With regard to MCR 6.429, defendant does not specifically address the court rule on appeal. However, we note briefly that to the extent defendant sought to correct an invalid sentence under MCR 6.429, the trial court properly denied her request as untimely. See People v Lee, 489 Mich 289, 299; 803 NW2d 165 (2011). That is, having entered a plea, defendant could only appeal by leave to this Court. Id., citing MCR 6.302(B)(5). Thus, under MCR 6.429(B)(3), defendant had six months from the entry of the judgement of sentence in which to file a motion to correct an invalid sentence. Defendant's motion in June 2017 was filed long after this period expired, and as a result, the trial court properly denied her untimely motion to correct an invalid sentence. See Lee, 489 Mich at 299. At this point, defendant's only potential avenue for relief from an invalid sentence is to file a motion for relief from judgment pursuant to MCR 6.500 et seq. See MCR 6.429(B)(4).
Under the Crime Victim's Rights Act (CVRA), MCL 780.751 et seq., in addition to any other penalty imposed by law, restitution for the actual losses suffered by crime victims must be ordered as part of a defendant's sentence. See People v Grant, 455 Mich 221, 224 n 4, 243; 565 NW2d 389 (1997); People v Bell, 276 Mich App 342, 347; 741 NW2d 57 (2007). "Restitution should only compensate for losses that are (1) easily ascertained and measured and (2) a direct result of the defendant's criminal acts." People v Byard, 265 Mich App 510, 513; 696 NW2d 783 (2005) (quotation marks and citation omitted). Restitution is not allowed for speculative or conjectural losses. People v Wahmhoff, 319 Mich App 264, 270; 900 NW2d 364 (2017). "A restitution amount, if contested, must be proven by a preponderance of the evidence." Byard, 265 Mich App at 513 (emphasis added), citing MCL 780.767(4). Absent an objection and a request for an evidentiary hearing, the trial court may rely on the accuracy of the amounts provided in the PSIR, and the trial court is not required to hold an evidentiary hearing to determine the proper amount of restitution. People v Bowling, 299 Mich App 552, 564; 830 NW2d 800 (2013).
Notably, once an order of restitution has been entered, it may be amended by the trial court pursuant to MCL 780.766(22), which states that "[t]he court may amend an order of restitution entered under this section on a motion by the prosecuting attorney, the victim, or the defendant based upon new information related to the injury, damages, or loss for which the restitution was ordered." As made plain in this statutory provision, a trial court's authority to amend an order of restitution is discretionary. See People v Gubachy, 272 Mich App 706, 712; 728 NW2d 891 (2006) ("[T]he word 'may' . . . is permissive and therefore indicative of discretion."). However, to invoke this discretion, the prosecuting attorney, the victim, or the defendant moving to amend the order of restitution must provide the trial court with "new information related to the injury, damages, or loss for which the restitution was ordered." (Emphasis added.)
In the trial court, the prosecutor conceded that defendant was not time-barred from seeking to amend the order of restitution because MCL 780.766(22) does not contain a time limit. On appeal, the prosecutor asserts that defendant's motion is time-barred insofar as it implicates MCR 6.429. However, the prosecutor also addresses the merits of defendant's arguments under MCL 780.766(22), and the prosecutor does not appear to dispute that MCL 780.766(22) provides an independent avenue for relief for a defendant, prosecuting attorney, or victim seeking to amend an order of restitution based on "new information."
As commonly understood, to constitute "new" information, the information must have "recently come into existence" or it must be information that has "been seen, used or known about for a short time." Merriam-Webster's Collegiate Dictionary (11th ed.) Moreover, the term "information" makes plain that the moving party must present the court with "knowledge or intelligence," "facts," or "data" related to the injury, damages, or loss for which the restitution was ordered. Merriam-Webster's Collegiate Dictionary (11th ed.) Given the requirement that a moving party present "new information," it is clear that a motion to amend a restitution order is not the time to challenge the adequacy of the information considered at sentencing, and it is not the time for a defendant to request an evidentiary hearing expecting that the prosecution will come forward with additional proofs to establish the proper amount of restitution by a preponderance of the evidence. Instead, to invoke the trial court's discretion to amend the restitution order, the party seeking relief must offer "new information" related to the injury, damages, or loss for which the restitution was ordered.
In this case, in seeking to invoke the trial court's discretion to amend the order of restitution, defendant essentially contends that the prosecutor failed to prove the proper amount of restitution by a preponderance of the evidence at defendant's sentencing in 2012. Defendant characterizes the restitution amount as "arbitrary," and defendant argues that the information available to the trial court at sentencing—including the victims' estimate of damages as set forth in the PSIR—was speculative. However, the time to raise these types of arguments and to demand that the prosecutor present supporting proofs has long passed. See Bowling, 299 Mich App at 564. At this juncture, if defendant wishes to obtain relief under MCL 780.766(22), she bears the burden of presenting "new information."
The only purportedly "new information" defendant offers relates to the victims' insurance deductible as set forth in the victim impact statement and insurance documents. However, defendant is mistaken in her assertion that information relating to the victims' insurance deductible entitles her to an amended order of restitution. First of all, to characterize the victim impact statement and the insurance documents as "new" information is disingenuous given that these materials date to 2012, before defendant's sentencing. Information available at the time of defendant's sentencing, that could have been presented had defendant requested an evidentiary hearing or contested the restitution amount, is not "new information" within the meaning of MCL 780.766(22). Second, defendant is mistaken in her assertions that the amount of restitution is limited to the victims' out-of-pocket deductible and that she is not required to pay restitution for losses that were covered by insurance. In actuality, restitution may be ordered to reimburse an insurance company for insurance benefits paid to an insured for losses arising out of a defendant's criminal conduct. See MCL 780.766(8); Byard, 265 Mich App at 512. Indeed, as amended in 2014, the order of restitution in this case specifically required restitution to be paid, in part, to Auto-Owners Insurance Company. Further, to the extent the victims received more than $1,000 in restitution, there is no indication that all of the victims' losses were covered by insurance, i.e., there is no evidence that the victims' out-of-pocket expenses were limited to $1,000. Thus, even supposing that the $1,000 deductible was "new" information, this information would not warrant an amendment to the order of restitution under MCL 780.766(22).
The victim impact statement was completed, and marked "received," before defendant's sentencing. However, for reasons not clear from the record, the trial court and parties indicated at sentencing that the victims had not yet filed a statement.
On appeal, defendant also asserts for the first time that the 2014 amendment to the restitution order, to include payment to Auto-Owners Insurance, is "new information" because defendant was unaware of this change. However, while defense counsel asserts that she was unaware of this amended order until the time of the hearing on defendant's motion to correct an invalid sentence, the amended order does in fact appear in the lower court file. In any event, certainly the amended order is not "new information" to the trial court, and defendant offers no cogent reason why this previous amended order would entitle her to relief under MCL 780.766(22). --------
Affirmed.
/s/ Joel P. Hoekstra
/s/ William B. Murphy
/s/ Jane E. Markey