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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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The Michigan Court of Appeals recently examined a wide range of arguments, ultimately finding that the trial court erred by imposing a fine, but upholding its orders for restitution. In <a href="http://links.govdelivery.com/track?type=click&amp;enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTcwNDIxLjcyNTUwMDYxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE3MDQyMS43MjU1MDA2MSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3NDA4NTU5JmVtYWlsaWQ9bWxhbmVAd25qLmNvbSZ1c2VyaWQ9bWxhbmVAd25qLmNvbSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&amp;&amp;&amp;103&amp;&amp;&amp;http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20170420_C329992_26_329992.OPN.PDF" target="_blank" rel="noreferrer noopener">People v. Foster, No. 329992</a>, the defendant “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).” The prosecution agreed to drop the charges in exchange for the defendant’s agreement to pay restitution. But, on appeal, the defendant argued that he could not be ordered to pay restitution where he was not convicted of the underlying crimes.

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The court of appeals examined several issues, beginning with a $500 fine imposed by the trial court. The fine was imposed after the defendant agreed to the plea deal, and the defendant argued on appeal that the trial court erred by denying him the opportunity to rescind his plea. The Court of Appeals agreed, saying that, although a trial court may change the agreement between the defendant and prosecution, it must thereafter give the defendant an opportunity to withdraw his plea. In this case, the judge imposed the $500 fine, and the record reflected no opportunity for the defendant to do so. Because the fine was not part of the original plea agreement, the appeals court vacated “that portion of the judgment of sentence that requires defendant to pay a $500 fine.”

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Next, the defendant argued that “he cannot be ordered to pay restitution for a charge that was dismissed.” In People v. McKinley, the defendant argued, the Michigan 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.”

The court rejected the argument, saying that McKinley had not yet been applied to a case “where the defendant was charged for crimes that were dismissed under a plea agreement where an agreement to pay restitution was a condition of the plea.” Examining the underlying facts in McKinley, the court noted that the constitutional concerns were grounded in making a defendant pay for conduct without finding that he actually did the prohibited conduct. Holding a defendant financially responsible in the absence of a successful conviction would render useless the requirement that every element of a criminal offense be satisfied beyond a reasonable doubt.

In this case, however, the court said that the defendant essentially “self-convicted” by agreeing to pay restitution in lieu of being criminally convicted. He may not now claim that the prosecution failed to convict him. Indeed, the court said, the defendant voluntarily agreed to pay restitution so that he would not be convicted. There is therefore no risk of the defendant’s rights being violated where he “intentionally relinquishe[d] his right to have the prosecution prove every element of the charge beyond a reasonable doubt.”

Third, the defendant argued that the restitution was not proportional to his crime. Because another co-defendant was charged for the same crime, he said, the court could not require that he alone pay the full amount to the victims of the crimes.

The court rejected this argument. Restitution, it said, is based on the actual harm suffered by the victim. There is no element of proportionally because restitution does not require any balance between the crime and the amount of restitution owed. Each defendant “can be ordered to pay all the restitution” because each defendant is responsible for all of the harm to the victim. Additionally, the concept of proportionality applies to “punishments,” and restitution is not a punishment; it is simply a way to make victims whole after a loss. Accordingly, the proportionality of the order is not a concern.

Fourth, the defendant argued that the order of restitution violated the Sixth and Fourteenth Amendments because “he was ‘subject to an amount of restitution that is not factually supported by either an admission under oath, or a jury finding.’” Reiterating its analyses concerning restitution, the court said that restitution is not a punishment requiring the same constitutional safeguards as a criminal sentence. Where the defendant agrees to pay the amount in lieu of conviction, the constitutional issues typically at play are no longer a concern.

Finally, the defendant argued that his counsel was ineffective “for failing to object to the imposition of the $500 fine and the order of restitution.” Reciting the standards for effective assistance of counsel, the court noted that reversal of a conviction is appropriate only where “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Where defense counsel employed a certain strategy without clear error, the court does not second-guess that strategy “with the benefit of hindsight.” Accordingly, the court found that defense counsel successfully argued for a plea agreement that dismissed two charges and recommended minimum sentences. Objecting to the fine would have effectively nullified that plea, the court said, and defense counsel was within its rights to steer case strategy away from such a result.

Considering the foregoing analyses, the Court of Appeals vacated the $500 fine, but in “all other respects” affirmed the trial court’s order.

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Madelaine C. Lane

Labor and Employment

COA: Defendant can withdraw plea if judge deviates from deal, but restitution is constitutional and need not be proportional

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COA: Defendant can withdraw plea if judge deviates from deal, but restitution is constitutional and need not be proportional

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