                          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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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.

PER CURIAM.

       The trial court revoked Ghazi Marji’s probation and sentenced him to a two-year term of
imprisonment based on Marji’s failure to fully pay the restitution he owed. Before imposing this
sentence, the trial court failed to consider Marji’s current employment status, earning ability,
financial resources, and the willfulness of his failure to remit the total amount of restitution
awarded. The record does not substantiate that Marji had the ability to pay the restitution or that
he had willfully refused to pay it, and the trial court never made any reviewable findings one way
or another. We reverse and remand for proceedings consistent with this opinion.

                                                 I

         In May 2010, Marji pleaded no contest to felonious assault. The court ordered him to pay
restitution in the amount of $22,774.42 plus various court costs and fees, and sentenced him to a
one-year jail term followed by two years’ probation. At that time, Marji was 65 years old.

        Marji was released early from jail for good conduct and in March 2011 requested that the
court modify one term of his probation—home confinement—so that he could attempt to resume
employment as a trucker. The Northern Steel Transport Company submitted a letter to the court
stating that Marji “had been an owner operator” for the company “from 2001 to 2010 as a
Commercial Motor Vehicle driver,” and that the company had “no issues reviewing [Marji’s]
record for the possibility of signing another lease.” The trial court lifted Marji’s home
confinement on condition that he inform his probation officer, Michael Tilley, of any
occupational departures and returns.

       Three months later, a new probation officer, Gregory Leighty, advised the court that
Marji was behind on his restitution; Leighty’s report stated the amount of Marji’s arrearage as
$3,568. The report further indicated, “The defendant reported that he is retired and that his

                                                -1-
income is about $1,000 per month. He reported that due to his rent, utilities, and initial
incarceration he has found himself behind. Defendant stressed that he is now attempting to work
again so that he can begin paying more consistently.” The trial court found Marji guilty of
violating his probation and extended his probation to June 28, 2015.

        In December 2011, Leighty advised the court that Marji was still in arrears to the tune of
$12,222, a significant increase from the $3,568 in arrearage claimed just six months earlier. The
report further provided: “The defendant’s last payment was $150.00 made on 12/7/11. The
defendant reports employment and indicates he is striving to work full-time when able. He
maintains payments will be made consistently.”

       In July 2012, a different probation officer (Patrick Knowles) reported that Marji was
$20,238.52 in arrears, despite that Marji “has made $150 per month payments since [violation of
his probation] on 8/29/11.” A year and a half later, yet another probation agent reported that
Marji was $16,953.05 in arrears, but continued to make “payments in the amount of $150.00 per
month.”

         In May 2015, a probation violation report filed with the court declared that Marji’s
restitution balance stood at $14,801.12. Much of the information contained in the report was
drawn directly from Marji’s 2010 presentence investigation report. The 2015 report provided in
relevant part:

               The defendant has denied being employed since his sentence date of
       6/28/2010. The defendant claims to live solely on $1,100.00 Social Security per
       month. However, it should be noted the defendant was owner of Margie [sic]
       Trucking and that he bought his wife out of the business in a divorce settlement
       all around the time of the sentence in this case indicating that this business had
       value. It is also possible the defendant has been working but this is not verifiable
       as he denies same.[1]

                                             * * *

               As previously stated the defendant was owner of Margie [sic] Trucking
       prior to the within offense and it was indicated in the presentence investigation
       that the defendant bought out his wife’s interest in the business prior to their
       divorce which was a result of the defendant’s involvement in the within offense.
       This indicates value to this business and it is unknown at this time what happened
       to this business. Wether [sic] it is being operated by other people, the defendant
       or was sold for some value. When the defendant was first placed on probation he
       indicated he was unemployed and living on Social Security because he retired due
       to his arrest on the within offense.



1
 Of course, Marji’s employment, if any, was verifiable through a subpoena to the Internal
Revenue Service or to Marji’s bank.


                                               -2-
         Marji admitted at the probation violation hearing that he still owed some amount of
restitution; according to his appointed counsel, the arrearage was $14,201.12. Referencing the
probation violation report Marji’s lawyer stated:

               Your Honor, the tone of the report herein suggests that my client has
       additional income. He asserts he does not have additional income but for his
       social security. I don’t see that probation has any verification or independent
       documentation that supports their assertion that he’s making other - - other money
       from some other source. And he stands by the fact that he is paying everything he
       can.

              He doesn’t deny that he still has a balance, but he asserts that there is no
       other pool of monies that he can take from to pay additionally.

       The prosecutor responded:

              Well, your Honor, the People’s concern, aside from the fact, of course,
       that the victim sustained horrific injuries that required significant medical
       treatment, but the defendant, at the time, was back when this occurred, had a
       trucking business, and apparently - - I don’t know if he’s dissolved that trucking
       business or sold off the assets of that trucking business, but certainly those assets
       have value. And if, in fact, he did dissolve and sell off those assets, then those
       monies could have been put towards these medical bills.

              So, for whatever reason the defendant chose not to do that. Either the
       business still exists and someone else is running it for him, in which case there are
       monies, or, he has sold that business. But, certainly the selling of that business
       would have provided some monetary benefit to the defendant, and so, you know,
       the defendant has chosen not to pay these monies. It’s very easy, as the court is
       aware, to conceal assets.

              The People would ask that the court adopt the recommendation and make
       the remaining restitution part of parole. [Emphasis added.]

        Aside from the prosecutor’s speculations about a “trucking business” and Marji’s assets,
neither the prosecutor nor the probation department presented any testimony or evidence.

         The court questioned Marji about his “trucking business.” Marji claimed that he had an
accident in Toledo, Ohio and “smash[ed]” the truck. He stated that he had rented the trailer
“from the owner.” Marji then described the accident; the transcript of this interchange is
virtually undecipherable due either to Marji’s difficulties with the English language or the
quality of the recording. The court asked whether the truck was insured, and Marji responded
that it was not; under further questioning he clarified: “I’m saying it wasn’t insured by me, but it
was insured by the company.” The trial court disbelieved this testimony. Marji suggested that
the court call the trucking company to confirm his version; the court retorted: “I’m not gonna do
anything, Sir. I don’t have to prove anything, you have to prove it to me.”



                                                -3-
        Marji claimed that his ownership of the truck “was long time ago.” This issue, too,
remained unresolved. The court then became frustrated, admonishing Marji, “You told me you
had a trucking business.” The following colloquy ensued:

             Mr. Marji: Not a trucking business, I have a truck. I don’t have a
      trucking business.

                The Court: Well, I beg to differ with you Sir, because - -

                Mr. Marji: No.

                The Court: - - you - - don’t interrupt me, Sir.

                Mr. Marji: No.

              The Court: Do not interrupt me. This is what you said with respect to
      your employment back then, that you were the sole owner of Marji Trucking.
      You told the - - the agent that the business used to be in your wife’s name but you
      bought her out and that you couldn’t work since this offense because you couldn’t
      travel out of state. And you were receiving social security income at that time.
      That’s what you indicated, Sir.

                Mr. Marji: That’s true. I’m not - - I’m not saying one word, your Honor,
      but - -

              The Court: Well then I don’t understand how you could own the truck and
      not have it insured, that somebody else is insuring it for you. They can’t insure an
      interest that they don’t have in the property. It’s not - - it’s a fraud if you insure
      an interest in property that you don’t own. If you own the truck you have to have
      had the insurance on it. Now, maybe they reimbursed you the cost for the
      insurance, I don’t know, but they could not have insured your truck.

             Mr. Marji: Your Honor, they insure my truck and the company - -
      (undecipherable) - - there is a driver for that company - - (undecipherable) - - 20,
      25 guys. They own their - - their truck. Some people, they own just the head,
      some people, they own the head and the trailer.

             The Court: Well, you can’t change your stories all the time, Mr. Marji,
      when it suits your . . . All right, thank you.

             It is the sentence of this court that your probation be revoked. I am
      sentencing you to serve (2) years to five - - fifteen (15) years with the Michigan




                                                 -4-
       Department of Corrections with three hundred and sixty-five (365) days
       credit[.][2]

        Marji’s prison term began on June 22, 2015, and in December 2015, this Court granted
his delayed application to appeal. People v Marji, unpublished order of the Court of Appeals,
entered December 21, 2015 (Docket No. 330193).3 According to the Offender Tracking
Information System (OTIS), Marji was paroled in June 2016; his parole supervision discharge
date is June 21, 2017.

                                                II

        Preliminarily we observe that despite Marji’s release from prison, his appellate argument
is not moot. “An issue is moot when an event occurs that renders it impossible for the reviewing
court to fashion a remedy to the controversy.” People v Cathey, 261 Mich App 506, 510; 681
NW2d 661 (2004). “Parole is a conditional release; a paroled prisoner is technically still in the
custody of the Department of Corrections, which is executing the sentence imposed by the
court.” People v Raihala, 199 Mich App 577, 579; 502 NW2d 755 (1993). “[U]nless and until
parole is successfully completed, the prisoner is deemed to be still serving out the sentence
imposed upon him by the court.” Id. at 579-580 (quotation marks and citation omitted).
Furthermore, MCL 791.238 provides in relevant part:

               (1) Each prisoner on parole shall remain in the legal custody and under the
       control of the department. The deputy director of the bureau of field services,
       upon a showing of probable violation of parole, may issue a warrant for the return
       of any paroled prisoner. Pending a hearing upon any charge of parole violation,
       the prisoner shall remain incarcerated.

              (2) A prisoner violating the provisions of his or her parole and for whose
       return a warrant has been issued by the deputy director of the bureau of field
       services is treated as an escaped prisoner and is liable, when arrested, to serve out


2
  Although the transcript indicates that the trial court intended the upper end of Marji’s sentence
to be 15 years, the judgment of sentence states that his sentence is two to five years’
imprisonment. Marji’s brief on appeal indicates that he was sentenced to 2 to 15 years’
imprisonment. Both OTIS and the prosecution’s brief on appeal indicate that Marji’s sentence
was two to five years’ imprisonment. On remand, the trial court is directed to clarify Marji’s
sentence.
3
  Appellate counsel was appointed for Mr. Marji on July 6, 2015, less than a month after his
probation was revoked. Counsel filed a delayed application for leave to appeal on November 9,
2015. This Court granted the application approximately one month after the transcripts were
received. Despite our decision to grant leave and to endorse Marji’s counsel for argument, no
one appeared on his behalf. We find this troubling. Oral argument frequently benefits this Court
in resolving factual and legal issues. Particularly when leave has been granted, we urge counsel
to attend.


                                                -5-
       the unexpired portion of his or her maximum imprisonment. The time from the
       date of the declared violation to the date of the prisoner’s availability for return to
       an institution shall not be counted as time served. The warrant of the deputy
       director of the bureau of field services is a sufficient warrant authorizing all
       officers named in the warrant to detain the paroled prisoner in any jail of the state
       until his or her return to the state penal institution.

Additionally, MCL 791.240a provides in relevant part:

               (1) After a prisoner is released on parole, the prisoner’s parole order is
       subject to revocation at the discretion of the parole board for cause as provided in
       this section.

                                               * * *

              (11) A parolee who is ordered to make restitution under the William Van
       Regenmorter crime victim’s rights act, . . . MCL 780.751 to 780.834, or the code
       of criminal procedure, . . . MCL 760.1 to 777.69, or to pay an assessment ordered
       under . . . MCL 780.905, as a condition of parole may have his or her parole
       revoked by the parole board if the parolee fails to comply with the order and if the
       parolee has not made a good faith effort to comply with the order. In determining
       whether to revoke parole, the parole board shall consider the parolee’s
       employment status, earning ability, and financial resources, the willfulness of the
       parolee’s failure to comply with the order, and any other special circumstances
       that may have a bearing on the parolee's ability to comply with the order.


        Thus, a parolee remains in the custody of the Department of Corrections and is subject to
being returned to prison at the discretion of the Department of Corrections upon a violation of
parole, which may be predicated on the failure to pay restitution. MCL 791.238(1)-(2); MCL
791.240a(1) and (11); Raihala, 199 Mich App at 579-580. Here, the trial court made restitution
a condition of Marji’s parole; therefore, he remains subject to imprisonment and his appellate
argument is not moot. See Cathey, 261 Mich App at 510; see also People v Parker, 267 Mich
App 319, 329; 704 NW2d 734 (2005) (“We note that [defendant] has served his minimum
sentence and was paroled on March 9, 2004. However, we conclude that this appeal is not moot
because [defendant] is scheduled to remain on parole until March 15, 2006, which imposes some
continuing limitations on his freedom. Had [defendant] received an intermediate sanction, as he
contends he should have, he might not be subject to any limitations at all.”).

                                                 III

       A court may not revoke a defendant’s probation and send him or her to prison absent a
finding that he or she has an ability to pay restitution and is in willful default of his obligation.
People v Collins, 239 Mich App 125, 136; 607 NW2d 760 (1999). This holding flows from both
the language of the relevant statutes and binding authority issued by the United States Supreme
Court. Before imprisoning a defendant for failure to pay restitution, a court must consider
whether the defendant has the present ability to pay by examining his employment status,
earning capacity, and financial resources.
                                                -6-
       MCL 780.766(11) provides:

                If the defendant is placed on probation or paroled or the court imposes a
       conditional sentence as provided in . . . MCL 769.3, 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 or parole board 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.]

See also MCL 769.1a(11).       MCL 769.1a(14) and MCL 780.766(14), which are identical,
provide:

               Notwithstanding any other provision of this section, 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 or parole board 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.]

       In Bearden v Georgia, 461 US 660, 672-673; 103 S Ct 2064; 76 L Ed 2d 221 (1983), the
United States Supreme Court held

       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.


And in People v Jackson, 483 Mich 271, 275; 769 NW2d 630 (2009), our Supreme Court
declared that when determining a defendant’s ability to pay, a judge “must consider whether the
defendant remains indigent and whether repayment would cause manifest hardship.”




                                               -7-
         This statutory and constitutional framework dictates that a court “consider” certain
evidentiary questions involving a probationer’s economic situation, and refrain from sending a
probationer to prison unless he or she has not made “a good faith effort” to comply with a
restitution order, despite having the resources to do so.

         A court “considers” a question “by devoting some element of thoughtful deliberation to
it.” State v Jones, 124 Ore App 489, 493; 863 P2d 480 (1993). Here, the court expressed its
disbelief of everything Marji tried to say and focused on Marji’s preconviction employment as a
truck driver. But disbelief is not a finding, and the record is devoid of any evidence that would
permit the trial court to actually determine Marji’s employment status, earning ability, and
financial resources. The prosecutor presented only the information gathered in 2010, when Marji
was originally sentenced, and based on that information hypothesized that assets might yet be
remaining from the time of Marji’s 2010 divorce. But neither the prosecutor nor the probation
department brought forward any actual facts or evidence regarding Marji’s 2015 assets or his
ability to pay.

        Moreover, in 2015, Marji was almost 70 years old and his truck no longer existed. The
2011 letter from the Northern Steel Transport Company relied on by the court offered Marji “the
possibility of signing another lease;” no evidence substantiated that the offer had turned into real
wages. Instead of focusing on Marji’s current ability to pay as statutorily required, the court
simply rejected whatever Marji said. That the prosecution brought forward no evidence
whatsoever made the court’s task difficult, to be sure. This evidentiary void did not relieve the
court of its obligation to consider the statutory criteria and to indicate, on the record, what it had
determined regarding Marji’s “employment status, earning ability, and financial resources,” as
well as the “willfulness” of his failure to pay the balance of the owed restitution.4

        We reject the prosecutor’s argument that the necessary findings were “implicit” in the
court’s statements, as we decline to read the court’s mind in light of the requirement that the
record reflect a considered judgment. Because the court made no findings and instead expressed
only disbelief or frustration with its lack of knowledge, it is impossible to determine whether the
court actually considered Marji’s ability to pay, or instead relied solely on the stale information
provided in the PSIR. As no evidence presented in 2015 suggested that Marji had any resources
available to him to pay the entire balance of the restitution award, we cannot agree that the court
implicitly found that such assets existed.

      We reverse. We remand for a new probation violation hearing at which the trial court
must make the findings of fact required by MCL 769.1a(14) and MCL 780.766(14). On remand,



4
  That Marji had, for the most part, steadily paid something toward the debt tends to refute that
he had “willfully” failed to pay. In fact, Marji had made a substantial dent in the restitution he
owed, paying at least $8,000 of the total, and in a fairly consistent fashion. Given Marji’s
payments over the years, it appears that he was making a reasonable effort to pay, particularly
given that if Marji’s income was limited to $1,100.00 in social security benefits, he was paying
almost 14% of his monthly income in restitution.


                                                 -8-
the trial court should also correct the judgment of sentence to accurately reflect its intended
sentence. We do not retain jurisdiction.



                                                          /s/ Elizabeth L. Gleicher
                                                          /s/ Christopher M. Murray




                                              -9-
