Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  January 31, 2020                                                               Bridget M. McCormack,
                                                                                               Chief Justice

                                                                                      David F. Viviano,
                                                                                      Chief Justice Pro Tem
  158716
                                                                                    Stephen J. Markman
                                                                                         Brian K. Zahra
                                                                                   Richard H. Bernstein
                                                                                   Elizabeth T. Clement
  PEOPLE OF THE STATE OF MICHIGAN,                                                 Megan K. Cavanagh,
            Plaintiff-Appellee,                                                                     Justices

  v                                                       SC: 158716
                                                          COA: 334205
                                                          Wayne CC: 16-003006-FH
  GARY GILMORE,
           Defendant-Appellant.

  _________________________________________/

          On December 11, 2019, the Court heard oral argument on the application for leave
  to appeal the September 25, 2018 judgment of the Court of Appeals. On order of the
  Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave
  to appeal, we REVERSE the judgment of the Court of Appeals, and we REMAND this
  case to the Wayne Circuit Court for an evidentiary hearing regarding the amount of
  restitution.

          Defendant pleaded guilty to organized retail crime and using a computer to
  commit a crime. In exchange, the prosecutor agreed to dismiss three other pending
  charges and a habitual-offender notice. The parties also agreed that defendant’s sentence
  would be 3½ years of probation and that he would pay restitution of $18,000.80.
  Defendant disputed the amount of restitution and requested a restitution hearing. The
  trial court essentially refused, forcing defendant to accept the restitution amount to gain
  the benefits of the agreement. Defendant acquiesced. In establishing the factual basis of
  the offense, defendant admitted that he switched tags on merchandise in a store, obtaining
  a good he believed was valued at $169 for some lesser amount. The presentence
  investigation report indicated the value could have been as much as $199.

         However, the court ultimately refused to follow the agreement at sentencing. The
  court told defendant the original agreement had been “stricken” and described the
  defendant’s alternative to facing trial:
                                                                                                               2


              Well, there is no actual offer, the only thing that’s on the table right
       now are guidelines except for the fact that the People are desirous of
       withdrawing the habitual fourth and dismissing Counts 3, 4, and 5 at the
       time of sentencing, that’s it.

Defendant agreed, and the court sentenced defendant to concurrent terms of 5 years of
probation, and 2½ to 7 years in prison. The court also ordered defendant to pay
$18,000.80 in restitution. With no agreement in place regarding restitution, the court was
required to resolve the dispute over the proper amount of restitution by a preponderance
of the evidence. MCL 780.767(4). Because the trial court failed to do so, defendant is
entitled to a remand for this determination.

       Even if the error were unpreserved, the record evidence—the factual basis for
defendant’s conviction and the information from the presentence investigation report—
indicates the court plainly erred. The loss to the merchant for the charged offense was, at
most, $199. To the extent that the record contains information that defendant may have
committed other offenses, restitution may not be imposed for uncharged conduct. People
v McKinley, 496 Mich 410, 419-420 (2014) (holding 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” under MCL 780.766(2)). We have little trouble seeing that the trial
court erred, the error was plain, and that the error affected defendant’s substantial rights.
People v Carines, 460 Mich 750, 763 (1999). Further, the fairness of the proceeding was
seriously affected given the trial court’s failure to conduct a restitution hearing under the
circumstances. See id. at 763-764.

       We do not retain jurisdiction.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         January 31, 2020
       s0128
                                                                             Clerk
