Michigan Supreme Court Holds No Restitution For Uncharged Acts.

On June 26th, 2014, the Michigan Supreme Court held in a criminal case that a trial court may not impose restitution on a defendant solely based on uncharged acts.

In People v McKinley, Docket No. 147391, the Michigan Supreme Court addressed an appeal where the issue centered around whether the trial court had the authority under the restitution statute to assess restitution to defendant for criminal acts the prosecution never charged him with committing.

From the opinion's syllabus:

Matthew C. McKinley was found guilty by a jury in the Calhoun Circuit Court of larceny over $20,000, malicious destruction of property over $20,000, and inducing a minor to commit a felony in connection with a series of thefts of commercial air conditioning units. The trial court, Conrad J. Sindt, J., sentenced the defendant, as a fourth-offense habitual offender, to concurrent terms of 12 to 25 years in prison on each count and reserved a decision regarding restitution. Following a hearing, and over defense counsel’s objection to the amount of restitution assessed, the 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. The Court of Appeals, FORT HOOD, P.J., and FITZGERALD and O’CONNELL, JJ., vacated the defendant’s conviction for larceny over $20,000, but otherwise affirmed his convictions and sentences in an unpublished opinion per curiam issued May 16, 2013 (Docket No. 307360). The panel rejected the defendant’s argument that Michigan’s restitution scheme was unconstitutional because it permitted trial courts to impose restitution on the basis of facts not proved to the trier of fact beyond a reasonable doubt. The Supreme Court granted defendant’s application for leave to appeal, limited to the issues whether an order of restitution was equivalent to a criminal penalty and whether Michigan’s statutory restitution scheme was unconstitutional insofar as it permitted the trial court to order restitution based on conduct for which a defendant was not charged that had not been submitted to a jury or proven beyond a reasonable doubt. 495 Mich 897 (2013).

In an opinion by Justice MCCORMACK, joined by Chief Justice YOUNG and Justices MARKMAN, KELLY, ZAHRA, and VIVIANO, the Supreme Court held:

A trial court’s restitution award that is based solely on conduct for which the defendant was not charged may not be sustained. People v Gahan, 456 Mich 264 (1997), was overruled to the extent 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.

1. It was not necessary to reach either of defendant’s constitutional challenges to the restitution award. Under the rule of constitutional avoidance, it was necessary to revisit the statutory analysis of MCL 780.766(2) set forth in Gahan because the statutory analysis in that case was plainly incomplete, and the defendant’s constitutional challenge to restitution based on conduct for which he had not been charged was a novel one that other courts had not addressed. Defendant’s challenge to remainder of the restitution award was waived because he did not challenge it in his initial application for leave to appeal in this Court, but instead had posited that that portion passed constitutional muster.

2. The Gahan Court’s reading of MCL 780.766(2) was not sustainable and was overruled. The plain language of the statute authorizes the assessment of full restitution only for a victim of the defendant’s course of conduct that gave rise to the conviction. Given that only crimes for which a defendant was charged could cause or give rise to the conviction, the statute ties the defendant’s course of conduct to the offenses for which the defendant was convicted and requires a causal link between them. Therefore, any course of conduct that did not give rise to a conviction could not be relied on as a basis for assessing restitution against a defendant. Similarly, the statute requires that [']any victim['] be a victim of the defendant’s course of conduct giving rise to the conviction, indicating that a victim for whom restitution was assessed need also have a connection to the course of conduct that gave rise to the conviction. Allowing restitution to be assessed for uncharged conduct would read the phrase [']that gives rise to the conviction['] out of the statute by permitting restitution awards for [']any victim of the defendant’s course of conduct['] without any qualification. This conclusion was reinforced by reading MCL 780.766(2) in pari materia with other provisions in the Crime Victim’s Rights Act, MCL 780.751 et seq., that also require a direct, causal relationship between the conduct underlying the convicted offense and the amount of restitution to be awarded. Because MCL 780.766(2) did not authorize the assessment of restitution based on uncharged conduct, the trial court erred by ordering defendant to pay $94,431 in restitution to the victims of air conditioner thefts attributed to defendant by his accomplice but not charged by the prosecution.

3. Gahan was wrongly decided because it interpreted only one phrase in MCL 780.766(2) and failed to address another. Under the factors for overruling prior decisions set forth in Robinson v Detroit, 462 Mich 439 (2000), Gahan was overruled to the extent that it held that MCL 780.766(2) authorized 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.

Judgment of sentence vacated in part; case remanded for entry of an order assessing $63,749.44 against defendant . . .