Summary
In Bryant, the defendant pleaded guilty to felony-firearm in exchange for the dismissal of a separate charge of second-degree home invasion.
Summary of this case from People v. SharnowskiOpinion
No. 328512
02-02-2017
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Bud BRYANT also known as Bud Bryant, Jr., Defendant–Appellant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason Williams, Chief of Research, Training, and Appeals, and Margaret Gillis Ayalp, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Anne Yantus ) for defendant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason Williams, Chief of Research, Training, and Appeals, and Margaret Gillis Ayalp, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Anne Yantus ) for defendant.
Before: Stephens, P.J., and Saad and Meter, JJ.
Per Curiam. Defendant pleaded guilty to possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b(1), pursuant to a plea and sentencing agreement. The trial court sentenced defendant to serve five years in prison, concurrently with the sentence imposed in another case and consecutively to his existing parole. Defendant was also ordered to pay $498 in costs and fees and $1,000 in restitution. Defendant applied in this Court for leave to appeal, challenging the restitution order and arguing that his trial counsel was ineffective for failing to object to the restitution order at sentencing. This Court denied his application. Defendant then applied for leave to appeal in the Michigan Supreme Court. The Supreme Court remanded the case to us "for consideration as on leave granted of the defendant's issue regarding the propriety of the Wayne Circuit Court's restitution award in light of People v. McKinley , 496 Mich. 410[, 852 N.W.2d 770] (2014)." People v. Bryant , 499 Mich. 896, 876 N.W.2d 821 (2016). "In all other respects," the Court ruled, "leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court." Id . We affirm.
People v. Bryant , unpublished order of the Court of Appeals, entered August 31, 2015 (Docket No. 328512).
Defendant broke into Deborah Raupp's home and stole rifles, a change jar, and a jewelry box. A security camera outside Raupp's home captured defendant walking out of the home with a long gun and change jar in his hand. The parties reached a plea and sentencing agreement: defendant would plead guilty to felony-firearm (second offense), and in exchange the prosecution would dismiss a second-degree home invasion count and fourth-offense habitual-offender notice. The parties agreed that defendant would be sentenced to five years in prison. The trial court sentenced defendant to prison terms consistent with the plea agreement.
At sentencing, the prosecution requested that defendant pay $1,000 in restitution. Raupp requested $1,000 in restitution for her insurance deductible. The trial court ordered defendant to pay this amount. Defendant filed a motion to correct an invalid sentence, challenging the restitution, costs, and fees ordered. Regarding restitution, defendant argued that it should be reduced because the amount ordered was improper under McKinley , 496 Mich. at 419–421, 852 N.W.2d 770, MCL 780.766(2), and MCL 769.1a(2). Defendant argued that the trial court should have ordered restitution only for loss resulting from the theft of a single gun because he only admitted to stealing one gun and was only charged with possessing one gun. Therefore, he contended, any loss associated with the theft of additional items was related to the dismissed charge of second-degree home invasion and could not be recovered. The prosecution argued that McKinley did not apply because, among other reasons, defendant had been charged with second-degree home invasion. The trial court concluded that McKinley was inapplicable because "there's no requirement that the factual basis establish the level of restitution...." Instead, the court reasoned, the factual basis underlying the plea must "simply [establish] the elements of the crime...." The trial court called this a "home invasion" case in which "[b]oth guns were [taken as] a matter of [defendant's] course of conduct." The trial court noted that the presentence investigation report (PSIR) provided a "preponderance of the evidence that there were ... two guns stolen...." The trial court upheld the $1,000 restitution order.
This Court reviews de novo "[t]he proper application of ... statutes authorizing the assessment of restitution at sentencing...." McKinley , 496 Mich. at 414–415, 852 N.W.2d 770. We review a trial court's factual findings for clear error and a trial court's calculation of restitution for an abuse of discretion. People v. Corbin , 312 Mich.App. 352, 361, 880 N.W.2d 2 (2015).
MCL 780.766(2) governs restitution and states that a defendant must "make full restitution to any victim of the defendant's course of conduct that gives rise to the conviction...." The McKinley Court, considering a "restitution award ... based solely on uncharged conduct," concluded that the phrase "gives rise to the conviction" means " ‘to produce or cause’ " the conviction. McKinley , 496 Mich. at 413, 419, 852 N.W.2d 770, quoting Random House Webster's College Dictionary (2000). Therefore, the McKinley Court concluded that "the [restitution] statute ties ‘the defendant's course of conduct’ to the convicted offenses and requires a causal link between them." McKinley , 496 Mich. at 419, 852 N.W.2d 770. Stated differently, " MCL 780.766(2) requires a direct, causal relationship between the conduct underlying the convicted offense and the amount of restitution to be awarded," id . at 421, 670 N.W.2d 655, and "any course of conduct that does not give rise to a conviction may not be relied on ... [to] assess [ ] restitution," id. at 419, 670 N.W.2d 655.
MCL 769.1a(2) also requires the trial court to order a defendant to "make full restitution to any victim of the defendant's course of conduct that gives rise to the conviction ...."
In light of McKinley , the Corbin Court reasoned that restitution may be "award[ed] only for losses factually and proximately caused by the defendant's offense ...." Corbin , 312 Mich.App. at 369, 880 N.W.2d 2 (considering whether the trial court could order restitution for one victim's uncertain future losses and for another victim's losses relating to a charge that the prosecution dismissed). "In determining whether a defendant's conduct is a factual cause of the result," the Corbin Court explained, "one must ask, but for the defendant's conduct, would the result have occurred?" Id. at 369 (quotation marks and citations omitted). The Court further stated that "[f]or a defendant's conduct to be regarded as a proximate cause, the victim's injury must be a direct and natural result of the defendant's actions." Id . (quotation marks and citations omitted).
Once the need for restitution is established, if there is a dispute regarding the proper amount of restitution to be ordered, the prosecuting attorney must prove by a preponderance of the evidence the amount required to make the victim whole. MCL 780.767(4) ; People v. Fawaz , 299 Mich.App. 55, 65, 829 N.W.2d 259 (2012). The PSIR may be used in making this showing. MCL 780.767(2) ; Fawaz , 299 Mich.App. at 59–60, 829 N.W.2d 259 (2012).
The crime of felony-firearm (second offense) has three elements: (1) the defendant attempted to commit a felony or committed a felony (2) while he or she had a firearm in his or her possession, and (3) the defendant had a separate felony-firearm conviction. MCL 750.227b(1). The defendant need not be convicted of the predicate felony to sustain a felony-firearm conviction, but the predicate felony "must have been committed." People v. Burgess , 419 Mich. 305, 311, 353 N.W.2d 444 (1984). In this case, a reading of the information as a whole showed that the prosecution listed as the predicate offense the second-degree home-invasion charge based on the larceny at Raupp's home. See MCL 750.110a(3). MCL 750.110a(3) provides:
The listing of "first-degree" home invasion in Count 2 (the felony-firearm count) was an obvious typographical error, given that Count 1 charged defendant with second-degree home invasion.
A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the second degree.
Defendant contends that he cannot be held liable for restitution relating to the home invasion as a whole because "the legal basis of [defendant's] felony[-]firearm conviction was the theft and possession of a single gun." Nevertheless, defendant's felony-firearm conviction was necessarily based on the predicate felony of second-degree home invasion, and as aptly stated by the prosecution on appeal, "[w]hile the home invasion charge was dismissed, its commission was part and parcel of the felony-firearm conviction," and "the course of conduct for the home invasion included stealing the victim's belongings." Defendant appears to be arguing that because, as part of the factual basis for his plea, he admitted only to stealing one gun, he cannot be ordered to pay restitution for anything other than that single gun. This, however, is a misreading of the law. Once defendant was properly convicted (as he assuredly was), the prosecution was then allowed to prove the amount of restitution related to defendant's course of conduct by a preponderance of the evidence and by reference to the PSIR. MCL 780.767(2) ; Fawaz , 299 Mich.App. at 59–60, 65, 829 N.W.2d 259. The course of conduct necessarily included the circumstances related to the required predicate offense of second-degree home invasion. The law simply does not require a defendant convicted by plea to specifically refer to each stolen item in order for the prosecution to obtain a restitution order for the stolen goods. We find no basis for reversal, and also reject defendant's claim of ineffective assistance of counsel regarding the failure to raise the issue at an earlier point in the proceedings. See People v. Ericksen , 288 Mich.App. 192, 201, 793 N.W.2d 120 (2010) (holding that counsel is not ineffective for failing to raise a meritless argument).
Imagine that this case had gone to trial and defendant was convicted after a jury trial of felony-firearm (second offense) and second-degree home invasion. Restitution of $1,000 would be appropriate even though one would not know for certain which items the jury had focused on in rendering the home-invasion verdict. We further note that, unlike in People v. Raisbeck , 312 Mich.App. 759, 771, 773, 882 N.W.2d 161 (2015), wherein the Court denied restitution with regard to persons who were not listed on the information but who were claimed to be victims by the prosecution, there was only one victim was at issue here; Raisbeck is not controlling in the present case.
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Affirmed.
Stephens, P.J., and Saad and Meter, JJ., concurred.