                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  February 22, 2018
                Plaintiff-Appellee,

v                                                                 No. 331246
                                                                  Midland Circuit Court
RUTH ANN SUTTON,                                                  LC No. 14-005917-FH

                Defendant-Appellant.


Before: CAVANAGH, P.J., and HOEKSTRA and BECKERING, JJ.

PER CURIAM.

         Defendant pleaded guilty to one count of forgery, MCL 750.248, in Midland Circuit
Court. The court sentenced defendant to 24 months to 28 years’ imprisonment and ordered
restitution in the amount of $2,250. Defendant sought leave to appeal, challenging the order of
restitution, which this Court denied.1 In lieu of granting leave to appeal, our Supreme Court
remanded the case to this Court for consideration as on leave granted.2 We vacate the Midland
Circuit Court’s order of restitution and remand for amendment of the judgment of sentence
consistent with this opinion.

        Defendant was part of a cleaning crew that cleaned the victim’s house located in Saginaw
County. In late October 2014, defendant allegedly took two checkbooks and a watch from the
victim’s house. Defendant then wrote a check to herself from the victim for $3,000 and signed
the victim’s name to the check without the victim’s permission. A teller at a bank located in
Midland County was not able to match defendant’s forged signature to the victim’s signature on
file. A bank supervisor contacted the victim, who denied writing a check to defendant. The
bank retained the check and turned defendant away without payment.

        Subsequently, defendant was arrested and charged in Midland County with forgery and
uttering and publishing. She was charged in Saginaw County for larceny in a building for
allegedly stealing the checkbooks and the watch.


1
 People v Sutton, unpublished order of the Court of Appeals, entered March 30, 2016 (Docket
No. 331246).
2
    People v Sutton, 500 Mich 945; 890 NW2d 362 (2017).


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        On January 15, 2015, a plea hearing was held in Midland Circuit Court. The terms of the
plea were that defendant would plead guilty to forgery as a habitual offender third offense, and
the prosecutor would dismiss the uttering and publishing count and habitual offender fourth
offense, but defendant would have to pay “full restitution.” Defendant accepted the plea and the
matter was set for sentencing. On February 26, 2015, a sentencing hearing was held in Midland
Circuit Court at which defendant was sentenced to 24 months to 28 years in prison, and ordered
to pay the victim restitution in the amount of $2,000.

        On May 21, 2015, a plea hearing was held in Saginaw Circuit Court. The terms of the
plea were that defendant would plead guilty to larceny in a building as a habitual offender fourth
offense, and the prosecutor would recommend that her sentence be concurrent with that imposed
by the Midland Circuit Court. Defendant accepted the plea, but during questioning by the court
stated that she only took one bank check and did not see a watch. The Saginaw court clarified
the factual basis for the plea:

       THE COURT: And you saw some property in this home?

       THE DEFENDANT: Yes.

       THE COURT: Watch and checks?

       THE DEFENDANT: Checks.

       THE COURT: And no watch?

       THE DEFENDANT: I didn’t see the watch, no.

       THE COURT: But there was some checks and you took some checks?

       THE DEFENDANT: One.

       THE COURT: One check and you know that was a no-no?

       THE DEFENDANT: Right.

       THE COURT: And you know you were doing something wrong?

       THE DEFENDANT: Right.

       THE COURT: You knew you didn’t have permission to do that?

       THE DEFENDANT: Right.

Thereafter, no additional questions regarding the factual basis for the larceny charge were asked
of defendant and the matter was set for sentencing.

       On August 24, 2105, defendant filed a motion for resentencing in the Midland Circuit
Court challenging, in part, the restitution of $2,000 that was ordered because it was based on her

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criminal conduct in Saginaw County not Midland County. That is, defendant only pleaded guilty
to forgery in Midland County, not larceny. At the hearing on the motion, the court was told that
the Saginaw County prosecutor did not seek restitution because the Midland Circuit Court had
ordered full restitution and it would be improper to “double dip” on that matter. The Midland
Circuit Court agreed with defendant that the judgment of sentence should be amended “so that
it’s zero dollars in restitution here in Midland” or, the court noted, a restitution hearing could be
held to determine what costs are actually associated with the victim’s losses. The prosecuting
attorney opted for the restitution hearing and defense counsel made no objection.

         On December 3, 2015, a restitution hearing was held in Midland Circuit Court. Before
testimony was taken, defense counsel objected to the admission of testimony or evidence relative
to any criminal conduct that occurred in Saginaw County. In response, the prosecuting attorney
indicated that Saginaw County did not seek restitution because Midland County had already
ordered restitution; however, the Saginaw County prosecutor would file a motion for
resentencing regarding the restitution issue if necessary. The prosecutor then indicated that he
was asking the court to leave restitution as ordered for reasons of judicial economy and the
detrimental reliance of Saginaw County on the order of restitution. Defendant’s counsel replied
that case law prevented the Midland Circuit Court from imposing restitution related to the
Saginaw County case. Further, defense counsel argued, defendant consistently denied taking the
watch, including at the plea hearing. The prosecutor agreed that defendant had denied taking the
watch, stating: “I don’t think there’s proofs on the record that she did take the watch, that’s
something I agree with [defense counsel] has to be decided by a Saginaw Judge possibly.” But
the prosecutor argued that the hearing should proceed to establish the amount the victim was
requesting in restitution—whether or not the Saginaw Court actually orders “that amount based
on whether she’s culpable for the watch or not.” The Midland Circuit Court agreed that, since
the victim and defendant were both in court, testimony should be taken to establish the amount
of restitution requested.

         Thereafter, the victim testified that the items taken from his house located in Saginaw
County were two checkbooks with 50 checks each and a Wittnauer watch which was valued at
about $2,000. He also had to pay $200 to have his door locks changed, and $50 to order new
checks. Thus, the victim requested $2,250 in restitution. Following the victim’s testimony,
defense counsel again objected to the Midland Circuit Court imposing restitution for the watch,
the door locks, and the new checks because these matters are properly determined by the
Saginaw Circuit Court. Further, defendant did not plead guilty to stealing the watch; thus, the
Saginaw Court would have to revisit that issue. The Midland Circuit Court agreed that there was
a discrepancy as to whether defendant pleaded guilty to stealing the watch in the Saginaw Court.
Nevertheless, the court noted that Saginaw County did not impose restitution because of the
restitution order entered by the Midland Circuit Court. Thus, the court entered an order of
restitution in the amount of $2,250, holding that “nobody is prejudiced by ordering restitution of
the amounts requested by [the victim] through Midland County, which would be the $2,250.00.”
The judgment of sentence was amended accordingly.

       On appeal, defendant argues that the Midland Circuit Court erred in ordering restitution
because the victim’s damages could not be attributed to her course of conduct underlying the
crime of forgery for which she was charged and convicted in Midland County. We agree.


                                                -3-
        “The proper application of MCL 780.766(2) and other statutes authorizing the assessment
of restitution at sentencing is a matter of statutory interpretation, which we review de novo.”
People v McKinley, 496 Mich 410, 414-415; 852 NW2d 770 (2014).
       Michigan’s restitution statute, MCL 780.766(2), states in relevant part:
       [W]hen sentencing a defendant convicted of a crime, the court shall order, in
       addition to or in lieu of any other penalty authorized by law or in addition to any
       other penalty required by law, that the defendant make full restitution to any
       victim of the defendant’s course of conduct that gives rise to the conviction[.]

In McKinley, our Supreme Court began its analysis by stating: “The statute does not define
‘gives rise to,’ but a lay dictionary defines the term as ‘to produce or cause.’ ” McKinley, 496
Mich at 419 (citation omitted). The McKinley Court continued:

       [T]he 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. [Id.
       at 419-420.]

        In this case, defendant was convicted in Midland County of forgery based on her guilty
plea. The forgery charge and conviction were based on defendant’s course of conduct of writing
herself a check and signing the victim’s name to it without the victim’s permission, with the
intent to defraud the bank and the victim out of $3,000. See People v Kaczorowski, 190 Mich
App 165, 171; 475 NW2d 861 (1991) (citation omitted; setting forth the elements of forgery).
That is, defendant signing the victim’s name on the check produced or caused the charge and
conviction of forgery—there was a causal link between them.

        However, defendant was not criminally charged or convicted in Midland County of
larceny. Because defendant was not charged or convicted of larceny in Midland County, the
larceny was “necessarily not part of a course of conduct that gives rise to the conviction” for
forgery. See McKinley, 496 Mich at 419-420. That is, defendant’s course of conduct of
allegedly stealing the watch in Saginaw County did not produce or cause the charge or
conviction for forgery in Midland County. This analysis also applies to the restitution amount
attributed to the victim changing the locks on the doors to his house located in Saginaw County.
However, defendant admits in her brief on appeal that she is “responsible for restitution for
checkbook replacement costs only, as the bank was located in Midland County;” thus, restitution
should be ordered in the amount of $50 which was the victim’s cost to order new checks.

        In summary, the Midland Circuit Court erred in ordering restitution based on a course of
conduct that did not give rise to defendant’s charge or conviction for forgery. In light of our
disposition of this issue, defendant’s ineffective assistance of counsel claim is moot and need not

                                                -4-
be addressed. Accordingly, we vacate the trial court’s order of restitution in the amount of
$2,250, and remand for amendment of the judgment of sentence consistent with this opinion.
We do not retain jurisdiction.




                                                        /s/ Mark J. Cavanagh
                                                        /s/ Joel P. Hoekstra
                                                        /s/ Jane M. Beckering




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