If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.



### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED January 2, 2020

v No. 345785 St. Clair Circuit Court RYAN HUNTER MORSE, LC No. 17

- 001961

- FH

Defendant

- Appellant.

Before: M URRAY
, C .J., and S AWYER and G LEICHER , JJ.

G LEICHER
, J. ( concurring in part and dissenting in part ).

The trial court ordered defendant Ryan Hunter Morse to pay restitution in the amount of $1

, 800. This figure has no evidentiary support whatsoever ; it is entirely made up. The majority acknowledges that $460, not $1

, 800, represented an accurate appraisal of the amount due to the victims as compensation for their loss. The majority affirms the inflated restitution award based on waiver and on this Court’s opinion in People v Foster , 319 Mich App 365, 383; 901 NW2d 127 (2017). I concur that defense counsel waived any challenge to the amount of restitution. I respectfully d isagree that Foster bears any relevance to this case.

Restitution is “compensation or reparation for the loss caused to another.” People v Gubachy , 272 Mich App 706, 708; 728 NW2d 891 (2006) (cleaned up). 1 The victims in this

case lost approximately $46 0 ; no more than that was ever claimed or supported . The majority explains that the $1

, 800 number was arrived at as part of a plea bargain obligating the trial court to consider “boot camp ” in lieu of a traditional prison sentence: “ The trial court found t hat it considered the boot camp recommendation if restitution was set at $1,800, and that it believed

1 This opinion uses the parenthetical (cleaned up) to improve readability without altering the substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as brackets, alterations, internal quotation marks, and unimportant citati ons have been omitted from the quotation. See Metzler, Cleaning Up Quotations , 18 J App Pract & Process 143 (2017).- 2

- other matters were included in the restitution figure.” The “other matters” are not mentioned in the record and whatever they may have been, no evidence supports that they had a value of $1

, 340.

The statutes governing restitution do not permit trial courts to award damages beyond full and fair compensation for a victim’s loss. “[U]nder the Crime Victim’s Rights Act (CVRA),
MCL 780.751 et seq

. [

, ] . . . i f a felony

. . . results in the loss of a victim’s property, the trial court may order the defendant to pay to the victim, as restitution, the value of the property that was lost.” Gubachy , 272 Mich App at 708, citing MCL 780.766(3). And “the losses incl uded in a
restitution order must be the result of defendant ’ s criminal course of conduct.” People v
Garrison , 495 Mich 362, 372; 852 NW2d 45 (2014)

. In other words, our Legislature did not envision restitution as a profit

- making enterprise.

The majority implicitly recognizes these principles, but nevertheless implies that this Court’s opinion in Foster , 319 Mich App 365, creates an exception to the rules. Foster does not support the award of $1

, 800 in this case.

Foster followed on the heels of our Supreme Court’s opinion in People v McKinley , 496 Mich 410; 852 NW2d 770 (2014). McKinley held that a defendant may not be ordered to pay
restitution for un charged conduct, emphasizing that “ any course of conduct that does not give rise to a convi ction may not be relied on as a basis for assessing restitution against a defendant. ” Id . at 419

- 420. The Court defined “ uncharged conduct ” as “ criminal conduct that the defendant allegedly engaged in that was not relied on as a basis for any criminal ch arge and therefore was not proved beyond a reasonable doubt to a trier of fact. ” Id . at 413 n 1

.

Foster did not involve restitution for “uncharged conduct” ; instead, the restitution order stemmed from charges dismissed as part of a plea agreement. In Foster , however, uncontested evidence supported the amount of restitution ordered, and unlike in this case, the defendant never challenged the number.

The defendant in Foster pleaded guilty to two counts of breaking and entering with intent
to commit a fel ony, MCL 750.110, and one count of possession with intent to deliver a controlled substance, MCL 333.7401(2)(b)( i ). Foster

, 319 Mich App at 368

. He was ordered to pay $419.02 in restitution for two additionally charged but later dismissed retail fraud
mi sdemeanor offenses. Id

. The amount of restitution ordered to be paid to Walmart for the
misdemeanors accurately reflected the losses sustained , and the defendant did not argue otherwise

. Id

. at 371. Rather, the defendant asserted that restitution for c onduct not submitted to a jury violated his Sixth and Fourteenth Amendment rights. Id . at 374. This Court rejected his argument, reasoning that neither the rule announced in McKinley nor “its analytical framework ” rendered “unconstitutional a situation in which restitution is part of a negotiated plea agreement.” Id

. at 379. “When a conviction is exchanged for restitution,” we explained, “a defendant intentionally relinquishes his right to have the prosecution pr ove every element of the charge beyond a reasonable doubt.” Id . at 383.

We pointed out in Foster that the “[d] efendant’s circumstance is different from that presented in McKinley because he agreed to pay the restitution he now challenges in exchange
for t he charges to be dismissed. ” Id . at 375 . Restitution was warranted in Foster , this Court- 3

- held, because the defendant had been charged with the crimes underlying the restitution award, and the charges “were dismissed under a plea agreement [and] an agreem ent to pay restitution was a condition of the plea.” Id

. at 379.

The majority seizes on the foll owing sentence from Foster as support for the notion that a defendant may be ordered to pay restitution bearing no resemblance to a victim’s actual loss, as long as the order flows from a plea bargain: “ [W] e do not find [the defendant’s constitutional rights] implicated when the de fendant expressly agrees to pay restitution to receive the benefit of a bargain struck with the prosecution.” Id . at 382. In context, however, the Foster Court held that an appropriately supported award of restitution could form part of a plea bargain if the charge underlying the restitution was dismissed as part of the bargain . This is a narrow holding
and consistent with McKinley . In my view, Foster should be stretched no further.

Foster addressed a question not presented here, and has no bearing on t he resolution of defendant’s argument. “[ C ] ourt

- ordered restitution is not a substitute for civil damages. ” People v Corbin , 312 Mich App 352, 360; 880 NW2d 2 (2015). Nor may restitution substitute for a statutory fine. No evidence supported that the v ictims in this case lost $1,800, or anything close
to that amount.

Nevertheless, defense counsel waived any objection to the amount of restitution ordered. Counsel expressed awareness that the amount of suggested restitution was unsupportable, but
neith er asked for a restitution hearing nor renewed his objection at sentencing. To the contrary, counsel offered that defendant would pay the money to make the victims and the court happy. Defendant and his counsel deliberately abandoned an argument that the amount of restitution should be less than $1

, 800. On that basis, I concur with the majorit y

.

/s/ Elizabeth L. Gleicher