People of Michigan v. Daniel James Brown ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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).
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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).
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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).
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(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).
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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.
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(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).
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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.]
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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
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