People of Michigan v. Daniel James Brown ( 2023 )


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  •              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    PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
    April 27, 2023
    Plaintiff-Appellee,
    v                                                                  No. 360132; 363314
    Genesee Circuit Court
    DANIEL JAMES BROWN,                                                LC No. 19-046074-FC
    Defendant-Appellant.
    Before: GADOLA, P.J., and GARRETT and FEENEY, JJ.
    PER CURIAM.
    Defendant pleaded guilty to carjacking, MCL 750.529a; unarmed robbery, MCL 750.530;
    and malicious destruction of property of $20,000 or more, MCL 750.377a(1)(a)(i), as part of a
    Cobbs1 agreement. In Docket No. 360132, defendant appeals by leave granted the June 21, 2021
    judgment of sentence challenging the trial court’s award of restitution. In Docket No. 363314,
    defendant appeals by leave granted the June 21, 2022 judgment of sentence challenging the trial
    court’s jurisdiction to sentence defendant for his carjacking conviction and probation violations
    while the appeal in Docket No. 360132 was pending before this Court. In both consolidated cases,
    we affirm.
    I. FACTS
    On October 11, 2019, Patricia Peabody and her sister escorted their 91-year old father,
    Douglas Smith, to Hurley Medical Center (Hurley) to attend a dedication ceremony. Peabody
    drove a black Cadillac XT5 to valet parking at Hurley. As Patricia attempted to help Smith out of
    the Cadillac and into a wheelchair, defendant got into the driver’s seat of the Cadillac. A valet
    attendant struggled unsuccessfully to remove defendant from the car. Peabody reached through
    the car and attempted to prevent defendant from putting the car in drive. Defendant put the
    Cadillac in drive and, knocking Peabody to the ground and with Smith still inside the car and his
    legs protruding from the open passenger car door, defendant drove the car through a gate onto
    1
    People v Cobbs, 
    443 Mich 276
    ; 
    505 NW2d 208
     (1993).
    -1-
    Hurley’s grounds, down stairs and through another gate, hitting a bench and lamppost, and crossing
    a street before crashing against a fence. During the incident, Smith hit his head and his legs were
    injured by the car door. Defendant fled. He later was arrested and bound over on charges of
    carjacking, unarmed robbery, and malicious destruction of property of $20,000 or more. An
    insurance claim for the damage to the Cadillac was submitted to Auto-Owners Insurance Company
    (Auto-Owners) after the incident; Auto-Owners provided a market valuation report for the Cadillac
    after the crash, appraising the loss at $29,980.
    Defendant and the prosecution engaged in plea negotiations, and the trial court ultimately
    agreed to a Cobbs agreement that required defendant to plead guilty to all charges with the
    understanding that the trial court would impose a probationary sentence during which defendant
    would participate in Macomb County’s Mental Health Court Program. During the plea
    negotiations, the prosecution discussed on the record the restitution requested on behalf of Hurley.
    Defendant pleaded guilty to carjacking, unarmed robbery, and malicious destruction of
    property of $20,000 or more as part of the Cobbs agreement. On June 21, 2021, the trial court
    sentenced defendant to concurrent terms of 48 months’ probation for the unarmed robbery and
    malicious destruction convictions. Pursuant to MCL 771.1, the trial court held in abeyance
    sentencing defendant on the carjacking conviction while defendant participated in the Mental
    Health Court Program. The trial court ordered defendant to pay fees and to pay restitution to Auto-
    Owners for damage to the Cadillac in the amount of $29,980. Over defendant’s objection, the trial
    court also ordered defendant to pay restitution to Hurley for damage to their premises in an amount
    to be decided. On behalf of Hurley, the prosecution sought restitution in the amount of $20,795.90,
    and the trial court directed the prosecution to provide documentation to support the request within
    30 days.
    Defendant moved to amend the judgment of sentence challenging the award of restitution.
    The trial court denied the motion in part, finding that the prosecution provided sufficient evidence
    at sentencing to support the ordered restitution to Auto-Owners of $29,980. Because the
    prosecution did not provide evidentiary support for Hurley’s restitution request, however, the trial
    court granted defendant’s motion in part, vacating the ordered restitution with respect to Hurley.
    This Court thereafter granted defendant leave to appeal the judgment of sentence.2
    Defendant violated his probation by failing to comply with the Mental Health Court
    Program. During the probation violation hearing, the trial court acknowledged defendant’s
    pending appeal in Docket No. 360132, but concluded that the pending appeal did not impact the
    trial court’s determination of defendant’s probation violation. The trial court sentenced defendant
    on June 21, 2022 to 81 months to 12 years in prison for the carjacking conviction, with credit for
    734 days served. On June 22, 2022, defendant pleaded guilty to violating the terms of his probation
    for his convictions of unarmed robbery and malicious destruction of property; the trial court
    revoked defendant’s probation and sentenced him to time served for those convictions.
    2
    People v Brown, unpublished order of the Court of Appeals, entered March 3, 2022 (Docket No.
    360132).
    -2-
    Defendant moved to correct his sentence under MCR 7.208(B)(1), arguing that the trial
    court lacked jurisdiction to sentence him for his carjacking conviction and probation violations
    because his appeal in Docket No. 360132 was pending before this Court. The trial court denied
    the motion, finding that the pending appeal regarding restitution did not deprive it of jurisdiction
    to sentence defendant on his carjacking conviction and probation violations. This Court granted
    defendant leave to appeal and consolidated the appeals.3
    II. DISCUSSION
    A. COBBS AGREEMENT
    Defendant contends that the trial court erred by ordering restitution because restitution was
    not part of his Cobbs plea agreement. We review an order of restitution for an abuse of discretion
    and review the trial court’s factual findings underlying the order of restitution for clear error.
    People v Foster, 
    319 Mich App 365
    , 374; 
    901 NW2d 127
     (2017). A trial court abuses its discretion
    when its decision falls outside the range of reasonable and principled outcomes, or when it makes
    an error of law. People v Duncan, 
    494 Mich 713
    , 723; 
    835 NW2d 399
     (2013). Clear error exists
    when we are left with a definite and firm conviction that the trial court made a mistake. People v
    Abbott, 
    330 Mich App 648
    , 654; 
    950 NW2d 478
     (2019). We review de novo questions of statutory
    interpretation. 
    Id.
    In Michigan, a plea agreement generally is either a Killebrew plea or a Cobbs plea. In a
    Killebrew plea, the trial court’s role is limited to consideration of the bargain between the
    prosecutor and the defendant. See People v Killebrew, 
    416 Mich 189
    , 194; 
    330 NW2d 834
     (1982).
    In a Cobbs plea, the trial court’s role is expanded and the trial court may preliminarily articulate
    on the record the sentence that appears appropriate for the charged offense based upon the court’s
    initial assessment. Cobbs, 
    443 Mich at 283
    . A defendant who enters into a plea agreement waives
    certain constitutional rights; the waiver of these rights must be voluntary and with full knowledge
    of the consequences of the plea for it to be valid under the Due Process Clause. People v Jaworski,
    
    387 Mich 21
    , 30; 
    194 NW2d 868
     (1972). Thus, in a Cobbs plea, if the trial court determines that
    it will not adhere to its initial sentencing assessment, the defendant is entitled to withdraw his or
    her plea. See MCR 6.310(B)(2)(b).
    In this case, defendant contends on appeal that under the Cobbs agreement the preliminary
    sentence evaluation did not address restitution, which was then imposed upon defendant without
    notice at the time of the plea. Defendant argues that the order of restitution must be stricken
    because due process requires the plea agreement to be specifically enforced. We disagree.
    Crime victims have a right to restitution under the Michigan Constitution. Const 1963, art
    1, § 24; People v Turn, 
    317 Mich App 475
    , 479; 
    896 NW2d 805
     (2016). In addition, restitution is
    mandated by statute. 
    Id.
     MCL 769.1a(2) provides:
    3
    People v Brown, unpublished order of the Court of Appeals, entered November 9, 2022 (Docket
    No. 363314).
    -3-
    (2) Except as provided in subsection (8), when sentencing a defendant convicted of
    a felony, misdemeanor, or ordinance violation, 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 or to the victim’s
    estate.
    Similarly, MCL 780.766(2), part of the Crime Victim’s Rights Act (CVRA), 780.751 et
    seq., provides, in relevant part:
    (2) Except as provided in subsection (8), when 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 or to the victim’s estate. . . .
    Because restitution is statutorily mandated, it is not an issue open to negotiation during the
    plea-bargaining or sentence-bargaining process. Rather, defendants are on notice that restitution,
    by virtue of being statutorily mandated, will be part of their sentences. People v Ronowski, 
    222 Mich App 58
    , 61; 
    564 NW2d 466
     (1997). By entering into a plea agreement, a defendant implicitly
    agrees to pay restitution in an amount accurately determined by the court. People v Bell, 
    276 Mich App 342
    , 347; 
    741 NW2d 57
     (2007). Regardless of whether defendant’s Cobbs agreement in this
    case explicitly stated that restitution would be part of the sentencing order, defendant had notice
    that restitution was statutorily mandated and would be imposed by the trial court.4 The trial court
    therefore did not fail to follow the Cobbs agreement by ordering defendant to pay restitution.5
    B. RESTITUTION
    Defendant also contends that there was insufficient evidence on the record to establish
    defendant’s obligation to pay restitution or to support the amount of restitution ordered.
    Specifically, defendant argues that (1) the restitution ordered by the trial court does not have a
    direct causal relationship to the criminal act in this case, and (2) the amount of the restitution was
    not properly established. Again, we review an order of restitution for an abuse of discretion.
    Foster, 319 Mich App at 374.
    Before the trial court, the prosecution sought restitution for Auto-Owners and Hurley. At
    sentencing, the trial court reviewed the information contained in the presentence investigation
    4
    We observe that during at least one pretrial hearing, the prosecution stated on the record it would
    seek restitution in excess of $20,000 from defendant for the amount owed to Hurley, with no
    objection from defendant.
    5
    We also observe that when a trial court determines not to abide by a Cobbs evaluation, a
    defendant’s remedy is withdrawal of his or her plea, not the striking of the order to pay restitution
    as requested by defendant. See Cobbs, 
    443 Mich at 283
    ; MCR 6.310(B)(2)(b).
    -4-
    report (PSIR) and the accompanying documentation6 and concluded it was proper to grant Auto-
    Owners $29,980 in restitution. The trial court awarded restitution to Hurley contingent upon the
    prosecution providing evidentiary support for Hurley’s $20,795.90 request within 30 days. The
    trial court thereafter granted in part defendant’s motion to amend the judgment, determining that
    Hurley was not entitled to restitution because the prosecution did not timely provide documentary
    support for the request. The trial court denied defendant’s motion with regard to the restitution
    owed to Auto-Owners.
    As discussed, MCL 769.1a(2), and MCL 780.766(2), require a trial court to order “full
    restitution to any victim of the defendant’s course of conduct that gives rise to the conviction.”
    The Legislature’s intent when enacting the CVRA was to shift the burden of loss arising from
    criminal conduct from the victim to the perpetrator; the statute is liberally construed to effectuate
    this intent. People v Allen, 
    295 Mich App 277
    , 282; 
    813 NW2d 806
     (2011). A victim only may
    recover, however, “for losses factually and proximately caused by the defendant’s offense.”
    People v Corbin, 
    312 Mich App 352
    , 369; 
    880 NW2d 2
     (2015). To determine whether a
    defendant’s actions proximately caused the victim’s injuries, the trial court should consider
    whether the victim’s injury was a “direct and natural result” of the defendant’s actions. 
    Id. at 369
    (quotation marks and citation omitted). The focus is on what a victim lost because of the
    defendant’s criminal activity. In re White, 
    330 Mich App 476
    , 483; 
    948 NW2d 643
     (2019). A
    victim is “an individual who suffers direct or threatened physical, financial, or emotional harm”
    and includes a “legal entity that suffers direct physical or financial harm as a result of a felony,
    misdemeanor, or ordinance violation.” MCL 769.1a(1)(b); MCL 780.766(1). A reimbursing
    insurer qualifies as a victim for purposes of restitution. People v Fawaz, 
    299 Mich App 55
    , 65;
    
    829 NW2d 259
     (2012); See also Bell, 276 Mich App at 347 (An insurance company may be
    awarded restitution under the CVRA for money paid to a victim for a defendant’s criminal act).
    Defendant argues that the restitution ordered by the trial court does not have a direct causal
    relationship to the criminal act in this case. We disagree. Defendant carjacked Patricia Peabody’s
    car, driving away in the car with 91-year Douglas Smith inside, then driving the car through a gate
    onto Hurley’s grounds, driving down stairs, hitting a bench and lamppost, and crashing through
    another gate and into a fence. Defendant admitted this conduct and pleaded guilty to carjacking,
    unarmed robbery, and malicious destruction of property of $20,000 or more. The record thus
    supports the finding that defendant’s course of conduct resulted in his convictions and that the
    damage to the Cadillac was a direct and natural result of defendant’s actions. Auto-Owners
    qualifies as a victim as a reimbursing insurer. Based on the evidence presented and defendant’s
    admissions, the trial court did not abuse its discretion when it determined that Auto-Owners was
    entitled to restitution.
    Defendant also argues that there was insufficient evidence to support the amount of
    restitution awarded, and that he is entitled to an evidentiary hearing regarding the amount of
    restitution. MCL 780.767 provides:
    6
    The trial court also relied on documentation from the Victim’s Advocate Office detailing Auto-
    Owners’ support for their requested restitution.
    -5-
    (1) In 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.
    (2) The court may order the probation officer to obtain information pertaining to
    the amounts of loss described in subsection (1). The probation officer shall include
    the information collected in the presentence investigation report or in a separate
    report, as the court directs.
    (3) The court shall disclose to both the defendant and the prosecuting attorney all
    portions of the presentence or other report pertaining to the matters described in
    subsection (1).
    (4) Any dispute as to the proper amount or type of restitution shall be resolved by
    the court by a preponderance of the evidence. The burden of demonstrating the
    amount of the loss sustained by a victim as a result of the offense shall be on the
    prosecuting attorney.
    The amount of restitution must be based upon the actual loss suffered by the victim. Fawaz,
    299 Mich App at 65. The prosecution has the burden to establish the proper amount of restitution
    by a preponderance of the evidence. MCL 780.767(4); Fawaz, 299 Mich App at 65. However,
    only an actual dispute properly raised at sentencing triggers the need to resolve the dispute by a
    preponderance of the evidence. People v Grant, 
    455 Mich 221
    , 243; 
    565 NW2d 389
     (1997).
    Further, absent a timely objection by the defendant, the trial court is not required to hold an
    evidentiary hearing on the amount of restitution, nor to make express findings on the record
    regarding the amount of restitution. 
    Id.
     “A judge is entitled to rely on the information in the
    presentence report, which is presumed to be accurate unless the defendant effectively challenges
    the accuracy of the factual information.” 
    Id. at 233-234
    .
    In this case, defendant did not object at sentencing to the amount of restitution requested
    by Auto-Owners, and therefore was not entitled to an evidentiary hearing. See 
    id. at 243
    . Absent
    a challenge at the sentencing hearing, the trial court was entitled to rely on the amount of restitution
    recommended in the PSIR and other documentation. 
    Id. at 233-234
    . The trial court therefore did
    not abuse its discretion by awarding restitution based upon the unchallenged documentation.7
    C. JURISDICTION
    Defendant contends that the trial court lacked jurisdiction to sentence defendant for his
    carjacking conviction and his probation violations while his appeal in Docket No. 360132 was
    7
    The prosecution requests remand to the trial court for an evidentiary hearing on Hurley’s request
    for restitution, in effect seeking reversal of the trial court’s denial of Hurley’s request for
    restitution. We decline to reach this issue; the prosecution did not file a cross-appeal and may not
    now obtain a decision more favorable than that afforded by the trial court. See People v Erickson,
    
    339 Mich 309
    , 324; 
    983 NW2d 419
     (2021), remanded on other grounds 
    509 Mich 960
     (2022).
    -6-
    pending before this Court. Defendant argues that under MCR 7.208 the trial court was not
    permitted to set aside or amend the June 2021 judgment of sentence. We disagree.
    Whether a trial court properly exercised subject-matter jurisdiction is a legal question that
    we review de novo. People v Washington, 
    508 Mich 107
    , 121; 
    972 NW2d 767
     (2021). We also
    review de novo the interpretation of court rules, and apply the same principles that govern statutory
    interpretation. People v Martinez, 
    307 Mich App 641
    , 647; 
    861 NW2d 905
     (2014). The
    unambiguous language of court rules is enforced as written. 
    Id.
    “Subject-matter jurisdiction is a legal term of art that concerns a court’s authority to hear
    and determine a case.” Washington, 508 Mich at 121 (citations and quotation marks omitted).
    MCR 7.208 states, in relevant part:
    (A) Limitations. After a claim of appeal is filed or leave to appeal is granted, the
    trial court or tribunal may not set aside or amend the judgment or order appealed
    from except
    (1) by order of the Court of Appeals,
    (2) by stipulation of the parties,
    * * *
    (4) as otherwise provided by law.
    In a criminal case, the filing of the claim of appeal does not preclude the trial court
    from granting a timely motion under subrule (B). [MCR 7.208(A).]
    Thus, under MCR 7.208(A)(4), the trial court may set aside or amend a judgment or order that is
    on appeal as otherwise provided by law. MCL 771.1(2) provides in relevant part:
    (2) In an action in which the court may place the defendant on probation, the court
    may delay sentencing the defendant for not more than 1 year to give the defendant
    an opportunity to prove to the court his or her eligibility for probation or other
    leniency compatible with the ends of justice and the defendant’s rehabilitation, such
    as participation in a drug treatment court . . . . The delay in passing sentence does
    not deprive the court of jurisdiction to sentence the defendant at any time during
    the period of delay. [Emphasis added.]
    MCL 771.4(5) states in relevant part:
    (5) Subject to the requirements of section 4b of this chapter, the court may
    investigate and enter a disposition of the probationer as the court determines best
    serves the public interest. If a probation order is revoked, the court may sentence
    the probationer in the same manner and to the same penalty as the court might have
    done if the probation order had never been made. [Emphasis added.]
    -7-
    MCL 771.1(2) authorizes the trial court to sentence defendant at any time during the one-year
    period of delay, and MCL 771.4(5) authorizes the trial court to sentence defendant for probation
    violations in the same manner as it would have during the original imposition of defendant’s
    sentences. In this case, within the time frame of MCL 771.1, the trial court sentenced defendant
    for his carjacking conviction after he failed to comply with the terms of the Mental Health Court
    Program. The trial court also revoked defendant’s probation for his unarmed robbery and
    malicious destruction of property convictions during the 48-month probationary period. Because
    the trial court’s actions were authorized under MCL 771.1 and MCL 771.4, the trial court’s actions
    were not precluded by MCR 7.208. See Safdar v Aziz, 
    501 Mich 213
    , 217; 
    912 NW2d 511
     (2018)
    (“[A]nother law need not grant jurisdiction specifically for judgments pending on appeal to qualify
    as an exception under MCR 7.208(A)(4). Rather, a statute satisfies MCR 7.208(A)(4) when the
    Legislature has authorized continuing jurisdiction to amend or modify a final judgment.”)
    Defendant also argues that the trial court did not have jurisdiction to sentence him for his
    probation violations because his appeal in Docket No. 360132 automatically stayed the trial court’s
    proceedings. No stay has been issued in Docket No. 360132, however, and under MCR 7.209
    there is no automatic stay. MCR 7.209(A)(1) provides as follows:
    Except for an automatic stay pursuant to MCR 2.614 or MCL 600.867, or except
    as otherwise provided under this rule, an appeal does not stay the effect or
    enforceability of a judgment or order of a trial court unless the trial court or the
    Court of Appeals otherwise orders. An automatic stay under MCR 2.614(D)
    operates to stay any and all proceedings in a cause in which a party has appealed a
    trial court’s denial of the party’s claim of governmental immunity. [Emphasis
    added.]
    In addition, the subject matter of defendant’s appeal in Docket No. 360132 (restitution) did
    not greatly alter the course of the case before the trial court relating to the sentencing after
    defendant’s probation violations. See People v Johnson, ___ Mich App ___ ; ___ NW2d ___
    (2022) (Docket No. 361698); slip op at 5-6. (Our Supreme Court’s exercise of jurisdiction over a
    separate but related superintending control complaint did not divest the trial court of subject-matter
    jurisdiction to resentence the defendant because the subject matter of the pending appeal did not
    “greatly alter the course of the case,” and the trial court and appellate court were not exercising
    jurisdiction over the same aspects of the case). Here, defendant’s appeal in Docket No. 360132
    addressed only issues related to the restitution award imposed during defendant’s June 2021
    sentencing; that appeal was unlikely to greatly alter the course of his case before the trial court
    relating to his sentencing after his probation violations, and this Court and the trial court were not
    exercising jurisdiction over the same aspects of the case.
    Affirmed.
    /s/ Michael F. Gadola
    /s/ Kristina Robinson Garrett
    /s/ Kathleen A. Feeney
    -8-