                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 14, 2017
               Plaintiff-Appellee,

v                                                                    No. 330193
                                                                     Oakland Circuit Court
GHAZI SALAMEH MARJI,                                                 LC No. 2009-229091-FH

               Defendant-Appellant.


Before: GLEICHER, P.J., and MURRAY and FORT HOOD, JJ.

FORT HOOD, J., (dissenting).

       I respectfully dissent. I believe that the trial court duly considered defendant’s ability to
pay restitution, as well as whether his failure to remit the total amount of restitution was willful
or the product of good faith. I would affirm the trial court’s order revoking defendant’s
probation.

       After defendant pleaded no contest to felonious assault, MCL 750.82, the trial court
sentenced defendant, a fourth-offense habitual offender, MCL 769.12, to two years’ probation.1
Defendant was also ordered to pay $22,774.422 in restitution, as well as other miscellaneous
assessments, fees and costs. The order of restitution was to cover the significant medical
expenses of the victim in this matter, Musa Yacoub. According to the record, Yacoub also
missed 3 months of work following the vicious beating he suffered at the hands of defendant and
defendant’s son, Issa Marji.

       As an initial matter, I observe that while defendant claimed at the probation violation
hearing that he did not have the financial means to pay restitution beyond what he was already
paying, defendant did not argue that his rights protected by the Fourteenth Amendment were


1
 The record reflects that defendant pleaded guilty to violating his probation in August 2011 after
being in arrears for his restitution obligation. As a result, the trial court extended defendant’s
probation term until June 28, 2015, ordering all original conditions of probation to remain in
effect.
2
  At the time of the probation violation hearing, defendant owed a total of $14,201.12 for his
restitution and other fees and assessments.


                                                -1-
violated. Accordingly, I conclude that his constitutional challenge was not preserved for
appellate review. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61
(2007). Therefore, I would review defendant’s unpreserved constitutional challenge for plain
error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597
NW2d 130 (1999).

        In Bearden v Georgia, 461 US 660, 667-668; 103 S Ct 2064; 76 L Ed 2d 221 (1983), the
United States Supreme Court, after reviewing earlier precedent from that Court, articulated that a
person may not be imprisoned “solely because he lacked the resources to pay [restitution].”
However, the Bearden Court, quoting Williams v Illinois, 399 US 235, 242 n 19; 90 S Ct 2018;
26 L Ed 2d 586 (1970), also made it abundantly clear that an individual’s imprisonment for a
“willful refusal” to pay restitution will not offend constitutional guarantees. Specifically, the
Bearden Court observed, in pertinent part, as follows:

                If the probationer has willfully refused to pay the fine or restitution when
       he has the means to pay, the State is perfectly justified in using imprisonment as a
       sanction to enforce collection. Similarly, a probationer’s failure to make
       sufficient bona fide efforts to seek employment or borrow money in order to pay
       the fine or restitution may reflect an insufficient concern for paying the debt he
       owes to society for his crime. In such a situation, the State is likewise justified in
       revoking probation and using imprisonment as an appropriate penalty for the
       offense. But if the probationer has made all reasonable efforts to pay the fine or
       restitution, and yet cannot do so through no fault of his own, it is fundamentally
       unfair to revoke probation automatically without considering whether adequate
       alternative methods of punishing the defendant are available. [Id. at 668-669
       (emphasis added; footnote and citations omitted).]

       In sum, the United States Supreme Court recognized the trial court’s authority and
responsibility in probation revocation proceedings:

               We hold, therefore, that in revocation proceedings for failure to pay a fine
       or restitution, a sentencing court must inquire into the reasons for the failure to
       pay. If the probationer willfully refused to pay or failed to make sufficient bona
       fide efforts legally to acquire the resources to pay, the court may revoke
       probation and sentence the defendant to imprisonment within the authorized
       range of its sentencing authority. If the probationer could not pay despite
       sufficient bona fide efforts to acquire the resources to do so, the court must
       consider alternate measures of punishment other than imprisonment. Only if
       alternate measures are not adequate to meet the State’s interests in punishment
       and deterrence may the court imprison a probationer who has made sufficient
       bona fide efforts to pay. To do otherwise would deprive the probationer of his
       conditional freedom simply because, through no fault of his own, he cannot pay
       the fine. Such a deprivation would be contrary to the fundamental fairness
       required by the Fourteenth Amendment. [Footnote omitted.]

       The Michigan Code of Criminal Procedure, MCL 760.1 et seq., and the Crime Victim’s
Rights Act (CVRA), MCL 780.751 et seq., contain provisions governing restitution orders.

                                                -2-
         MCL 769.1a(14)3 provides, in pertinent part, as follows:

                 [A] defendant shall not be imprisoned, jailed, or incarcerated for a
         violation of probation or parole or otherwise for failure to pay restitution as
         ordered under this section unless the court . . . determines that the defendant has
         the resources to pay the ordered restitution and has not made a good faith effort
         to do so. [Emphasis added.]

       The governing provision of the CVRA, MCL 780.766(11) provides, in pertinent part, as
follows:

                 If the defendant is placed on probation . . . any restitution ordered under
         this section shall be a condition of that probation, parole, or sentence. The court
         may revoke probation or impose imprisonment under the conditional sentence and
         the parole board may revoke parole if the defendant fails to comply with the order
         and if the defendant has not made a good faith effort to comply with the order. In
         determining whether to revoke probation or parole or impose imprisonment, the
         court . . . shall consider the defendant’s employment status, earning ability, and
         financial resources, the willfulness of the defendant’s failure to pay, and any
         other special circumstances that may have a bearing on the defendant’s ability to
         pay. [Emphasis added.]

         At the probation violation and sentencing hearing,4 the trial court, obviously well familiar
with defendant and this case, questioned defendant, sworn under oath, extensively before
imposing sentence. Defendant told the trial court that he did not have the financial means to pay
restitution, that he had owned a truck but never owned a trucking business, and that the truck had
been in an accident. Defendant represented to the trial court that he did not receive any
insurance proceeds following the accident. Defendant’s assertions to the trial court were at times
confusing, contradictory and unclear, a fact that the trial court took care to note on the record,
cautioning defendant that he could not “change [his] stories all the time[.]” Defendant also
asserted that he was unable to pay any more towards the restitution and costs than what he had
been paying. The trial court was also aware of defendant’s claims that he was subsisting on a
limited income from social security benefits.

        While defendant asserts that there was no evidence that he was able to pay restitution
beyond the existing payments of $150 a month that he paid out of his social security income, a
close review of the record supports the trial court’s conclusion to the contrary. For example, on
March 23, 2011, defendant filed a motion before the trial court, seeking to modify the terms of
his probation order. Specifically, defendant requested that the trial court consider lifting
provisions related to his home confinement so that defendant could resume employment. In his


3
    MCL 780.766(14) contains identical language.
4
  At the probation violation and sentencing hearing, defendant pleaded guilty to the probation
violation.


                                                 -3-
motion, defendant noted that he “has had long term employment as an owner operator with
Northern Steel Transport out of Toledo, Ohio.” An attachment to the motion, a letter dated
March 11, 2011 and signed by Sandra Moore, Safety and Recruiting Director for Northern Steel
Transport Company, confirmed that defendant had been an “owner operator” with the company
from 2001 to 2010. The letter also confirmed that future gainful employment for defendant with
the Northern Steel Transport Company was possible. The trial court, during the probation
violation hearing, also observed that defendant had appeared in court on previous occasions
related to his probation, and that defendant’s presentence investigation report (PSIR), reflected
that defendant had “a business truck, tractor – trailer valued at $20,000[.]” A review of the
PSIR, prepared in June 2010, confirms that defendant had run a trucking business as early as
2000, and that as of 2010, defendant was the “sole owner of Marji Trucking.” The PSIR also
listed as an asset defendant’s “[b]usiness [t]ruck, [t]ractor/[t]railer” with a value of $20,000.

         Accordingly, in my opinion the trial court duly considered defendant’s earning ability, his
assets of record, and questioned defendant thoroughly about the disposition of his trucking
business. It is also very clear to me that the trial court found defendant’s responses to its pointed
queries to be lacking in credibility. I am mindful that this Court ought to afford due regard to the
trial court’s “special opportunity” to gauge the credibility of the witnesses who appear before it.
MCR 2.613(C); People v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008), amended 481
Mich 1201 (2008). After a close review of the record as a whole, it is evident to me that the trial
court concluded that defendant’s failure to comply with the restitution order was willful, and the
trial court had serious doubts regarding defendant’s good faith in remitting restitution. While the
majority posits that the trial court’s ruling in this matter was in some way deficient because it did
not make more specific factual findings on the record, I am of the view that the trial court fully
complied with the requirements of both MCL 769.1a(14) and MCL 780.766(11).5 Namely, the
trial court questioned defendant under oath extensively in considering whether defendant had the
resources to remit his court-ordered restitution payments. It is also apparent from the record that
the trial court concluded that defendant was certainly less than forthcoming in his responses
regarding his financial means, and therefore the trial court concluded that defendant’s failure to
remit payment was not the product of good faith. Unlike the facts of Bearden, in my view the
trial court correctly recognized that this is not a case where the record supported a conclusion
that defendant was making “sufficient, bona fide efforts” to seek the financial resources to remit
restitution, or to “ma[ke] all reasonable efforts to pay . . . restitution[.]” Bearden, 461 US at
668.6



5
  While I acknowledge that MCR 6.445(E)(2) imposes certain responsibilities on the trial court
during the probation violation hearing, MCL 769.1a(14) and MCL 780.766(11) govern the trial
court’s decision regarding revocation of probation on the basis of non-payment of restitution, and
the trial court complied with these statutory provisions.
6
  The facts of this case can be distinguished from the United States Supreme Court’s decision in
Bearden. In Bearden, the petitioner was indigent, and had initially borrowed money from his
parents to pay restitution. Bearden, 461 US at 662-663. The petitioner had a ninth grade
education, could not read, and once he was laid off from his job, was unable to find other


                                                -4-
        On this record, where the trial court’s ultimate determination fell within the range of
reasonable and principled outcomes, I conclude that the trial court did not abuse its discretion in
revoking defendant’s probation. People v Breeding, 284 Mich App 471, 479; 772 NW2d 810
(2009); People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). Additionally, where it
is clear to me that the trial court concluded that defendant did indeed have the financial means to
tender restitution, that his failure to do so was willful, and that he was not acting in good faith, I
conclude that defendant’s rights under the Fourteenth Amendment were protected. Bearden, 461
US at 672-673; Tate v Short, 401 US 395, 400; 91 S Ct 668; 28 L Ed 2d 130 (1971); MCL
780.766(11); MCL 769.1a(14).

       Therefore, I would affirm the trial court’s revocation of defendant’s probation.



                                                              /s/ Karen M. Fort Hood




employment. Id. The United States Supreme Court noted that “[t]he record indicates that
petitioner had no income or assets . . . .” Id. at 663. In contrast, it is clear in this case that the
trial court found dubious defendant’s claims that he did not have the financial means to satisfy
the restitution order. Put another way, the record supports the trial court’s conclusion that
defendant could have paid the restitution order, but simply neglected to do so. Such inaction on
the part of a defendant will not be protected by the constitution. Id. at 668.




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