            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 2, 2020
               Plaintiff-Appellee,

v                                                                    No. 345785
                                                                     St. Clair Circuit Court
RYAN HUNTER MORSE,                                                   LC No. 17-001961-FH

               Defendant-Appellant.


Before: MURRAY, C.J., and SAWYER and GLEICHER, JJ.

PER CURIAM.

         Defendant appeals by delayed leave granted1 the trial court’s order requiring defendant to
pay $1,800 in restitution.2 Defendant pleaded guilty to second-degree home invasion, MCL
750.110a(3). Defendant was sentenced to 18 months to 15 years’ imprisonment for the second-
degree home invasion conviction. On appeal, defendant argues that the trial court’s $1,800
restitution order was not supported by facts in the record, and constituted a violation of his right
to due process. We affirm.

                                     I. FACTUAL HISTORY

        On February 1, 2017, defendant entered the victims’ home, located in St. Clair,
Michigan. Defendant brought a bag with him to the victims’ home. No one was at the victims’
home when defendant entered through the front door and without permission. Defendant knew
that the victims kept their front door unlocked because defendant knew the victims very well,
and defendant was best friends with the victims’ son.


1
  People v Morse, unpublished order of the Court of Appeals, entered December 13, 2018
(Docket No. 345785).
2
 Defendant was charged with second-degree home invasion, MCL 750.110a(3), and larceny in a
building, MCL 750.360. According to defendant’s plea agreement, the charge for larceny in a
building was dismissed. Defendant pleaded guilty only to second-degree home invasion.



                                                -1-
         While inside of the victims’ home, defendant took approximately $460 in coins from
various jars placed throughout the victims’ home, and put the coins into the bag defendant had
brought with him. Defendant left the victims’ home with the coins, intending to deprive the
victims of that money. Defendant was charged with second-degree home invasion, MCL
750.110a(3), and larceny in a building, MCL 750.360. Defendant pleaded guilty to second-
degree home invasion, in exchange for the prosecution’s dismissal of the larceny charge. When
the trial court asked how much defendant owed in restitution, defense counsel indicated that the
prosecution sought $1,800 to $2,000 in restitution on the basis of the victims’ claim. Defense
counsel did not contest that defendant would owe restitution as part of defendant’s sentencing,
however, defense counsel disputed the $1,800 to $2,000 amount claimed by the victims. The
trial court accepted defendant’s guilty plea, and stated that the probation department would look
into the amount taken from the victims’ home.

       At defendant’s sentencing hearing, defense counsel stated that he discussed the probation
department’s presentence investigation report (PSIR), which indicated that the victims claimed
defendant took approximately $460 in cash from the victims’ home, and that the probation
department recommended defendant pay $1,800 in restitution. When the trial court asked
whether defendant had any challenges to the content of the PSIR, or any challenges to the
scoring of the guidelines, defense counsel expressed concern about the probation department’s
recommended sentence, but did not challenge the recommended amount of restitution. Further,
defense counsel said defendant was unable to re-establish trust with the victims, that defendant
was willing to do whatever he has to do to try to make things right, and that although defendant
had the ability to pay that restitution figure, that it is never going to put the victims whole. In
consideration of the amendment to the guidelines, the trial court disregarded the high end of
defendant’s sentence in lieu of 18 months’ imprisonment in custody of the Michigan Department
of Corrections, ordered restitution of $1,800, and permitted defendant to be considered for boot
camp at the discretion of the Department of Corrections. The trial court sentenced defendant to
18 months to 15 years’ imprisonment.

       After defendant was released from prison, defendant filed a motion to reissue the
judgment of sentence (JOS) to reduce his restitution amount, asserting that he only stole $400
from the victims, but was ordered to pay $1,800 in restitution. The trial court found that it
considered the boot camp recommendation if restitution was set at $1,800, and that it believed
other matters were included in the restitution figure. The trial court stated that defendant “got
the benefit of the bargain,” and denied defendant’s motion to reissue the JOS to reduce
defendant’s restitution amount.

                                  II. RESTITUTION ORDER

       On appeal, defendant argues that the trial court’s $1,800 restitution order was not
supported by facts in the record and constituted a violation of his rights to due process. We
disagree.

                    A. PRESERVATION AND STANDARD OF REVIEW

        When a “[d]efendant fail[s] to object to the restitution order at the time of sentencing,”
the issue is an “unpreserved nonconstitutional issue.” People v Newton, 257 Mich App 61, 68;

                                                -2-
665 NW2d 504 (2003). Defendant failed to object to the trial court’s restitution order at the time
of sentencing; thus, defendant’s restitution issue is unpreserved.

         In general, “[t]his Court reviews de novo ‘[t]he proper application of . . . statutes
authorizing the assessment of restitution at sentencing. . . .’ ” People v Bryant, 319 Mich App
207, 210; 900 NW2d 360 (2017) (citation omitted). “[A] trial court’s factual findings” are
reviewed “for clear error and a trial court’s calculation of restitution for an abuse of discretion.”
Id. (citation omitted). Because defendant failed, however, at sentencing to object to the
restitution award, the issue is reviewed for plain error. People v Carines, 460 Mich 750, 752-
753; 597 NW2d 130 (1999) (citations omitted). “To avoid forfeiture under the plain error rule,
three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or
obvious, 3) and the plain error affected substantial rights.” Id. at 763-764 (citations omitted).
The third aspect of the plain error test requires a showing of prejudice. Id. Reversal is warranted
only where the plain error leads to “the conviction of an actually innocent defendant,” or affects
the “fairness, integrity, or public reputation” of the judicial proceeding. Id. at 763-764.

                                          B. ANALYSIS

       Defendant argues that the trial court’s $1,800 restitution order was improper because it
was not supported by facts in the record, and constituted a violation of his right to due process.

       Defendant pleaded guilty and was convicted of second-degree home invasion, MCL
750.110a(3). The charge of larceny in a building, MCL 750.360, a four-year felony, was
dismissed. MCL 750.110a(3) states:

       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 does not challenge his conviction of this offense on appeal. Rather, defendant solely
disputes the trial court’s award of $1,800 in restitution to the victims.

         At the outset, it is noteworthy, that defendant frames his issue on appeal as a violation of
his constitutional right to due process, arguing that the trial court, in imposing excessive
restitution, did not rely on accurate information, resulting in an invalid sentence. In support of
this argument, defendant cites to Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L
Ed 2d 435 (2000), and various progeny, to argue that “monetary penalties are to be treated in the
same way as other penalties for Sixth Amendment purposes[.]”

        In addressing defendant’s contentions of error regarding the imposition of the restitution
amount by the trial court as excessive, it is unnecessary to address the issue from the perspective
of a constitutional challenge. “[P]ursuant to the widely accepted and venerable rule of
constitutional avoidance,” this Court may instead pursue a resolution premised on statutory

                                                -3-
analysis and caselaw. People v McKinley, 496 Mich 410, 415-416; 852 NW2d 770 (2014)
(citation omitted). As is routinely recognized, “[I]f a case can be decided on either of two
grounds, one involving a constitutional question, the other a question of statutory construction or
general law, the Court will decide only the latter.” Ashwander v Tenn Valley Auth, 297 US 288,
347; 56 S Ct 466; 80 L Ed 688 (1936) (BRANDEIS, J., concurring). As such, defendant’s
restitution claim is addressed from the perspective of applicable statutes and caselaw.

        In addition, this Court notes that defendant’s issue is subject to forfeiture. Michigan law
clearly distinguishes between “ ‘forfeiture’ and ‘waiver.’ Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional
relinquishment or abandonment of a known right.’ ” People v James, 272 Mich App 182, 195;
725 NW2d 71 (2006) (citations omitted).

        At the plea hearing, defendant disputed the amount of restitution, which was estimated to
be between $1,800 and $2,000. The trial court indicated that the probation department would
“look into” determining the amount of restitution, in conjunction with the preparation of the
PSIR. Defense counsel clarified, after the trial court accepted defendant’s guilty plea: “[W]e do
not contest the issue of restitution is going to be relevant. . . . [H]e would like to come in on the
date of sentencing to have the full amount, if not . . . most of the amount of restitution paid.” At
the sentencing hearing, restitution was indirectly addressed with the trial court’s pronouncement
of sentence. Defense counsel indicated, during the proceedings, that defendant understood and
was “willing to accept whatever penalty the Court deems appropriate and fair today,” and that
defendant was also “willing to do whatever he has to do to try to make things right.” Defense
counsel’s only direct reference to restitution at sentencing was the following, wherein it was
stated in relevant part:

       One of the issues obviously is going to be restitution. Again, trying to put the
       victim in a position before the crime was committed. And I’ve talked to
       [defendant] about that. [Defendant] is working. He has a very good job. He has
       a driver’s license. He understands that some penalty must have to be imposed by
       the Court today. But it would seem to me he has the ability to pay that restitution
       figure and that’s never going to put the victim whole here. But at least it might
       attempt to repair some of the damage that is done here.

We conclude that defendant’s failure to request an evidentiary hearing on the amount of
restitution owed, particularly in light of the specific discussion at the plea hearing as to what
amount may be owed, constitutes a waiver of his right to contest the restitution amount. See
People v Gahan, 456 Mich 264, 276; 571 NW2d 503 (1997) (“at sentencing defendant did not
request an evidentiary hearing regarding the amount of restitution that was properly due. This
was a waiver of his opportunity for an evidentiary hearing. . . .”).

       However, even if we construed it as a mere forfeiture, any “error” by the trial court would
not be extinguished, but reviewed in accordance with the plain error standard. People v Carter,
462 Mich 206, 215; 612 NW2d 144 (2000) (citations omitted).

      In general, “[a] crime victim’s right to restitution is afforded both by statute and by the
Michigan Constitution.” People v Foster, 319 Mich App 365, 383; 901 NW2d 127 (2017)

                                                 -4-
(citations, quotation marks, and brackets omitted). “[U]nder the Crime Victim’s Rights Act
(CVRA), MCL 780.751 et seq., . . . if a felony (or a misdemeanor punishable by imprisonment
for more than one year) results in the loss of a victim’s property, the trial court may order the
defendant to pay to the victim, as restitution, the value of the property that was lost.” People v
Gubachy, 272 Mich App 706, 708; 728 NW2d 891 (2006), citing MCL 780.766(3). “The
prosecution must prove the amount of the victim’s loss by a preponderance of the evidence,” id.,
citing MCL 780.767(4), and the PSIR may be used to show the amount of the victim’s loss,
Bryant, 319 Mich App at 212 (citations omitted).

      Our Supreme Court, in McKinley, has specifically examined the language of MCL
780.766(2), governing restitution, and has concluded, in relevant part:

       The plain language of the statute authorizes the assessment of full restitution only
       for “any victim of the defendant’s course of conduct that gives rise to the
       conviction. . . .” The statute does not define “gives rise to,” but a lay dictionary
       defines the term as “to produce or cause.” Random House Webster’s College
       Dictionary (2000), p 1139. Only crimes for which a defendant is charged “cause”
       or “give rise to” the conviction. Thus, the statute ties “the defendant’s course of
       conduct” to the convicted offenses and requires a causal link between them. It
       follows directly from this premise 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. Stated differently, while conduct for which a defendant is criminally
       charged and convicted is necessarily part of the “course of conduct that gives rise
       to the conviction,” the opposite is also true; conduct for which a defendant is not
       criminally charged and convicted is necessarily not part of a course of conduct
       that gives rise to the conviction. 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 is assessed need also have a
       connection to the course of conduct that gives rise to the conviction. Allowing
       restitution to be assessed for uncharged conduct reads 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.
       [McKinley, 496 Mich at 419-420.]

When MCL 780.766(2) is read in pari materia, with MCL 780.767 of the Crime Victim’s Rights
Act, our Supreme Court has specifically noted:

       MCL 780.767, for example, sets forth the factors for consideration and the burden
       of proof in setting the amount of restitution. MCL 780.767(1) provides that “[i]n
       determining the amount of restitution to order under [MCL 780.766], the court
       shall consider the amount of the loss sustained by any victim as a result of the
       offense.”     Similarly, MCL 780.767(4) provides that “[t]he burden of
       demonstrating the amount of the loss sustained by a victim as a result of the
       offense shall be on the prosecuting attorney.” “[T]he offense” in MCL 780.767
       can only refer to the offense of which the defendant was convicted, because it is
       that “offense” that makes him subject to being ordered to pay restitution in the
       first place. Thus, these provisions further reinforce our conclusion that MCL

                                                -5-
       780.766(2) requires a direct, causal relationship between the conduct underlying
       the convicted offense and the amount of restitution to be awarded. [McKinley,
       496 Mich at 420-421.]

         Consequently, restitution cannot be authorized, or assessed on the basis of uncharged
conduct. Id. at 421. As such, the trial court’s $1,800 restitution order appears unauthorized
because it is not premised on, and exceeds, the actual assertion of loss set forth by the victims,
regarding defendant’s removal of approximately $460 in cash from their home, necessitating
remand to the trial court to discern the actual loss incurred by the victims resulting from
defendant’s charged conduct. Any suggestion by the trial court that the ordered restitution also
encompassed the value of loss of items related to defendant’s uncharged conduct is contrary to
the strictures recognized in McKinley, 496 Mich at 420.

       However, exceptions to the referenced rules of restitution have been identified, such as
when “restitution is part of a negotiated plea agreement.” Foster, 319 Mich App at 379. This
Court has specifically determined that a defendant’s due process right is not “implicated when
the defendant expressly agrees to pay restitution to receive the benefit of a bargain struck with
the prosecution.” Id. at 382. The trial court relied on this exception when it denied defendant’s
postjudgment motion to amend the restitution award. The trial court, citing to its ruling at
sentencing, indicated that the $1,800 was part and parcel of the plea and sentencing agreement.
At sentencing, the trial court stated:

       There has been some thought that even from the victim that after a certain point in
       time, may be even after incarceration for a while that boot camp may be the
       appropriate place for you. I think that’s probably sensible. And what I will do is
       because of the amendment to the guidelines, instead of the high end, I will strike
       that in lieu of 18 months committed to the Michigan Department of Corrections
       with restitution of $1,800. Credit would be given for two days served. You will
       be serving 18 months to 15 years max [sic] with two days served. . . . As
       indicated, I believe–I am willing to indicate that work program may be considered
       by the Department of Corrections. If so we will have an option of not only when
       it will be but should be granted at one point and I will be glad to take a look at
       that and have it reviewed by the probation department and get their
       recommendation and proceed from there.

The trial court also reaffirmed, at sentencing, that it had recommended boot camp for defendant
in accordance with the plea agreement. The trial court viewed its explanation and imposition of
its sentencing decision, as “a bargain struck that I will give [defendant] boot camp if [defendant]
agree[s] that restitution is $1,800. He got the benefit of the bargain.” As such, the trial court’s
statement at sentencing does suggest that the amount of restitution was part of the plea bargain
accepted by defendant in exchange for other considerations, such as boot camp, and a potentially
shorter period of incarceration. Any suggestion that defendant’s dispute of the restitution
amount at the plea hearing negates its inclusion or consideration in the plea agreement or
negotiations is obviated by defendant’s lack of objection and implied acceptance of the
restitution amount at sentencing. Under this scenario, construing the restitution amount as part
of the plea negotiation, defendant would not be entitled to amendment of the restitution order.


                                                -6-
        Finally, there exists a procedural basis for the rejection of defendant’s claim on appeal.
After an order of restitution has been entered, a trial court can amend the order in accordance
with MCL 780.766(22), which states: “The 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.” (Emphasis added.) The language of the cited statutory provision indicates the
discretionary nature of the trial court’s authority to amend an order of restitution. See Gubachy,
272 Mich App at 712 (“[T]he word ‘may’ . . . is permissive and therefore indicative of
discretion.”). To solicit the trial court’s discretion to amend an order of restitution, the individual
seeking the amendment must proffer the trial court “new information related to the injury,
damages, or loss for which the restitution was ordered.” MCL 780.766(22) (emphasis added).
Emphasizing the requirement that any information presented to the trial court to obtain
amendment of a restitution order must be “new” makes clear that such a postjudgment motion is
not the time to dispute or challenge that the information available at the time of sentencing was
inadequate for the amount of restitution imposed.

         In this instance, defendant fails to come forward with “new” information to support his
petition to amend the restitution order. The $1,800 restitution was suggested at both the plea
hearing and at sentencing, without specific objection by defendant. Essentially, defendant
contends the restitution award imposed by the trial court was arbitrary or without a factual basis,
thereby necessitating its correction. In doing so, defendant appears to be attempting to
circumvent the requirements of MCL 780.766(22) by bringing in the trial court a motion to
reissue his JOS, in accordance with MCR 6.428 (permitting reissuance of a judgment on the
basis of deficient performance by counsel to effectuate an appeal of right) and MCR 6.429(B)(3)
(governing timing for the filing of a motion to correct an invalid sentence) in order to amend the
restitution award. Regardless, given the late date of defendant’s attempt to amend the restitution
order, he cannot avoid the requirement of MCL 780.766(22).

       Affirmed.



                                                               /s/ Christopher M. Murray
                                                               /s/ David H. Sawyer




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