            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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.

GLEICHER, J. (concurring in part and dissenting in part).

        The trial court ordered defendant Ryan Hunter Morse to pay restitution in the amount of
$1,800. This figure has no evidentiary support whatsoever; it is entirely made up. The majority
acknowledges that $460, not $1,800, represented an accurate appraisal of the amount due to the
victims as compensation for their loss. The majority affirms the inflated restitution award based
on waiver and on this Court’s opinion in People v Foster, 319 Mich App 365, 383; 901 NW2d
127 (2017). I concur that defense counsel waived any challenge to the amount of restitution. I
respectfully disagree that Foster bears any relevance to this case.

       Restitution is “compensation or reparation for the loss caused to another.” People v
Gubachy, 272 Mich App 706, 708; 728 NW2d 891 (2006) (cleaned up).1 The victims in this
case lost approximately $460; no more than that was ever claimed or supported. The majority
explains that the $1,800 number was arrived at as part of a plea bargain obligating the trial court
to consider “boot camp” in lieu of a traditional prison sentence: “The trial court found that it
considered the boot camp recommendation if restitution was set at $1,800, and that it believed


1
  This opinion uses the parenthetical (cleaned up) to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as
brackets, alterations, internal quotation marks, and unimportant citations have been omitted from
the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).
other matters were included in the restitution figure.” The “other matters” are not mentioned in
the record and whatever they may have been, no evidence supports that they had a value of
$1,340.

         The statutes governing restitution do not permit trial courts to award damages beyond full
and fair compensation for a victim’s loss. “[U]nder the Crime Victim’s Rights Act (CVRA),
MCL 780.751 et seq.[,] . . . if a felony . . . 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.” Gubachy, 272 Mich App at 708, citing MCL 780.766(3). And “the losses included in a
restitution order must be the result of defendant’s criminal course of conduct.” People v
Garrison, 495 Mich 362, 372; 852 NW2d 45 (2014). In other words, our Legislature did not
envision restitution as a profit-making enterprise.

       The majority implicitly recognizes these principles, but nevertheless implies that this
Court’s opinion in Foster, 319 Mich App 365, creates an exception to the rules. Foster does not
support the award of $1,800 in this case.

         Foster followed on the heels of our Supreme Court’s opinion in People v McKinley, 496
Mich 410; 852 NW2d 770 (2014). McKinley held that a defendant may not be ordered to pay
restitution for uncharged conduct, emphasizing 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.”
Id. at 419-420. The Court defined “uncharged conduct” as “criminal conduct that the defendant
allegedly engaged in that was not relied on as a basis for any criminal charge and therefore was
not proved beyond a reasonable doubt to a trier of fact.” Id. at 413 n 1.

       Foster did not involve restitution for “uncharged conduct”; instead, the restitution order
stemmed from charges dismissed as part of a plea agreement. In Foster, however, uncontested
evidence supported the amount of restitution ordered, and unlike in this case, the defendant never
challenged the number.

        The defendant in Foster 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). Foster, 319 Mich App at 368. He was ordered to
pay $419.02 in restitution for two additionally charged but later dismissed retail fraud
misdemeanor offenses. Id. The amount of restitution ordered to be paid to Walmart for the
misdemeanors accurately reflected the losses sustained, and the defendant did not argue
otherwise. Id. at 371. Rather, the defendant asserted that restitution for conduct not submitted to
a jury violated his Sixth and Fourteenth Amendment rights. Id. at 374. This Court rejected his
argument, reasoning that neither the rule announced in McKinley nor “its analytical framework”
rendered “unconstitutional a situation in which restitution is part of a negotiated plea agreement.”
Id. at 379. “When a conviction is exchanged for restitution,” we explained, “a defendant
intentionally relinquishes his right to have the prosecution prove every element of the charge
beyond a reasonable doubt.” Id. at 383.

        We pointed out in Foster that the “[d]efendant’s circumstance is different from that
presented in McKinley because he agreed to pay the restitution he now challenges in exchange
for the charges to be dismissed.” Id. at 375. Restitution was warranted in Foster, this Court

                                                   -2-
held, because the defendant had been charged with the crimes underlying the restitution award,
and the charges “were dismissed under a plea agreement [and] an agreement to pay restitution
was a condition of the plea.” Id. at 379.

        The majority seizes on the following sentence from Foster as support for the notion that a
defendant may be ordered to pay restitution bearing no resemblance to a victim’s actual loss, as
long as the order flows from a plea bargain: “[W]e do not find [the defendant’s constitutional
rights] implicated when the defendant expressly agrees to pay restitution to receive the benefit of
a bargain struck with the prosecution.” Id. at 382. In context, however, the Foster Court held
that an appropriately supported award of restitution could form part of a plea bargain if the
charge underlying the restitution was dismissed as part of the bargain. This is a narrow holding
and consistent with McKinley. In my view, Foster should be stretched no further.

        Foster addressed a question not presented here, and has no bearing on the resolution of
defendant’s argument. “[C]ourt-ordered restitution is not a substitute for civil damages.” People
v Corbin, 312 Mich App 352, 360; 880 NW2d 2 (2015). Nor may restitution substitute for a
statutory fine. No evidence supported that the victims in this case lost $1,800, or anything close
to that amount.

        Nevertheless, defense counsel waived any objection to the amount of restitution ordered.
Counsel expressed awareness that the amount of suggested restitution was unsupportable, but
neither asked for a restitution hearing nor renewed his objection at sentencing. To the contrary,
counsel offered that defendant would pay the money to make the victims and the court happy.
Defendant and his counsel deliberately abandoned an argument that the amount of restitution
should be less than $1,800. On that basis, I concur with the majority.



                                                            /s/ Elizabeth L. Gleicher




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