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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 14, 2017

v No. 330193
Oakland Circuit Court GHAZI SALAMEH MARJI, LC No. 2009-229091-FH

Defendant-Appellant.

Before: G LEICHER , P.J., and M URRAY and F ORT H OOD , JJ.

F ORT H OOD , J., ( dissenting ).

I respectfully dissent. I belie ve that the trial court duly c onsidered defendant’s ability to pay restitution, as well as whether his failure to remit the to tal amount of restitution was willful or the product of good faith. I would affirm the trial court’s order revoking defendant’s probation.

After defendant pleaded no contest to felonious assault, MCL 7 50.82, the trial court sentenced defendant, a fourth-offense habitual offender, MCL 76 9.12, to two years’ probation. 1 Defendant was also ordered to pay $22,774.42 2 in restitution, as well as other miscellaneous assessments, fees and costs. The order of restitution was to c over the significant medical expenses of the victim in this matter, Musa Yacoub. According to the record, Yacoub also missed 3 months of work following the vicious beating he suffer ed at the hands of defendant and defendant’s son, Issa Marji.

As an initial matter, I observe that while defendant claimed a t the probation violation hearing that he did not have the financial means to pay restitu tion beyond what he was already paying, defendant did not argue t hat his rights protected by th e Fourteenth Amendment were

1 The record reflects that defenda nt pleaded guilty to violating his probation in August 2011 after being in arrears for his restitution obligation. As a result, the trial court extended defendant’s probation term until June 28, 2015, ordering all original condi tions of probation to remain in
effect.

2 At the time of the probation viol ation hearing, defendant owed a total of $14,201.12 for his
restitution and other fees and assessments.-2- violated. Accordingly, I conclude that his constitutional chal lenge was not preserved for appellate review. People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). Therefore, I would review defendant’s unpreserved cons titutional challenge for plain error affecting defendant ’s substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).

In Bearden v Georgia , 461 US 660, 667-668; 103 S Ct 2064; 76 L Ed 2d 221 (1983), th e United States Supreme Court, after reviewing earlier precedent from that Court, articulated that a person may not be imprisoned “solely because he lacked the reso urces to pay [restitution].” However, the Bearden Court, quoting Williams v Illinoi s, 399 US 235, 242 n 19; 90 S Ct 2018; 26 L Ed 2d 586 (1970), also made it abundantly clear that an in dividual’s imprisonment for a “willful refusal” to pay restitution will not offend constituti onal guarantees. Specifically, the

Bearden Court observed, in pertinent part, as follows:

If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perf ectly justified in using imprisonment as a sanction to enforce collection. Simila rly, a probationer’s failure to make sufficient bona fide efforts to seek employ ment or borrow money in order to pay the fine or restitution may reflect an in sufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and us ing imprisonment as an appr opriate penalty for the offense. But if the probationer has made all reasonable efforts to pay t he fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automa tically without considering wh ether adequate alternative methods of punishing the defendant are available. [ Id . at 668-669 (emphasis added; footnote and citations omitted).]

In sum, the United States Supreme Court recognized the trial c ourt’s authority and responsibility in probation r evocation proceedings:

We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing cour t must inquire into the reason s for the failure to

pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the re sources to pay, the court may revoke probation and sentence the defendant to imprisonmen t 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 imprisonme nt. Only if alternate measures are not adequate to meet the State’s interes ts in punishment and deterrence may the court imprison a probationer who has mad e sufficient bona fide efforts to pay. To do otherwise would deprive the pr obationer of his conditional freedom simply because, through no fault of his own , he cannot pay the fine. Such a deprivation w ould be contrary to the fundamen tal fairness required by the Fourteenth Ame ndment. [Footnote omitted.]

The Michigan Code of Criminal Procedure, MCL 760.1 et seq. , and the Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq. , contain provisions governin g restitution orders.-3- MCL 769.1a(14) 3 provides, in pertinent part, as follows:

[A] defendant shall not be imprisoned, jailed, or incarcerated for a violation of probation or parole or otherwise for failure to pa y restitution as
ordered under this section unless the court . . . determ ines that the defendant has the resources to pay the ordered restitution and has not made a good faith effort

to do so . [Emphasis added.]

The governing provision of th e CVRA, MCL 780.766(11) provides, in pertinent part, as
follows:

If the defendant is placed on probation . . . 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 condition al sentence and the parole board may revoke parol e if the defendant fails to co mply 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 . . . 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 ha ve a bearing on the de fendant’s ability to

pay . [Emphasis added.]

At the probation violation and sentencing hearing, 4 the trial court, obviously well familiar with defendant and this case, questioned defendant, sworn under oath, extensively before imposing sentence. Defendant told the trial court that he did not have the financial means to pay restitution, that he had owned a truck but never owned a trucki ng business, and that the truck had been in an accident. Defendant represented to the trial court that he did not receive any insurance proceeds following the accident. Defendant’s asserti ons to the trial c ourt were at times confusing, contradictory and unclear, a fact that the trial cou rt took care to note on the record, cautioning defendant that he could not “change [his] stories al l the time[.]” Defendant also asserted that he was unable to pay any more towards the restitu tion and costs than what he had been paying. The trial court was also aware of defendant’s cla ims that he was subsisting on a limited income from social security benefits.

While defendant asserts that there was no evidence that he was able to pay restitution beyond the existing payments of $150 a month that he paid out o f his social security income, a close review of the record supports the trial court’s conclusio n to the contrary. For example, on March 23, 2011, defendant filed a motion before the trial court , seeking to modify the terms of his probation order. Specifically, defendant requested that th e trial court consider lifting provisions related to his home confinement so that defendant co uld resume employment. In his

3 MCL 780.766(14) contains ide ntical language.

4 At the probation violation a nd sentencing hearing, defendant p leaded guilty to the probation
violation.-4- motion, defendant noted that he “has had long term employment a s an owner operator with Northern Steel Transport out of Toledo, Ohio.” An attachment t o the motion, a letter dated March 11, 2011 and signed by Sandra Moore, Safety and Recruitin g Director for Northern Steel Transport Company, confirmed that defendant had been an “owner operator” with the company from 2001 to 2010. The letter also confirmed that future gainf ul employment for defendant with the Northern Steel Transport Company was possible. The trial c ourt, during the probation violation hearing, also observed that defendant had appeared in court on previous occasions related to his probation, and th at defendant’s presentence inve stigation report (PSIR), reflected
that defendant had “a business tr uck, tractor – trailer valued at $20,000[.]” A review of the PSIR, prepared in June 2010, conf irms that defendant had run a trucking business as early as 2000, and that as of 2010, defendant was the “sole owner of Mar ji Trucking.” The PSIR also listed as an asset defendant’s “[ b]usiness [t]ruck, [t]ractor/[ t]railer” with a value of $20,000.

Accordingly, in my opinion the t rial court duly considered def endant’s earning ability, his assets of record, and questione d defendant thoroughly about the disposition of his trucking business. It is also very clear to me that the trial court fou nd defendant’s responses to its pointed queries to be lacking in credibi lity. I am mindful that this C ourt ought to afford due regard to the trial court’s “special opportunity” to gauge the credibility of the witnesses who appear before it. MCR 2.613(C); People v Dendel , 481 Mich 114, 130; 748 NW2d 859 (2008), amended 481 Mich 1201 (2008). After a close review of the record as a whol e, it is evident to me that the trial court concluded that defendant’s failure to comply with the res titution order was willful, and the
trial court had serious doubts re garding defendant’s good faith in remitting restitution. While the majority posits that the trial court’s ruling in this matter wa s in some way deficient because it did not make more specific factual fi ndings on the record, I am of the view that the trial court fully complied with the requirements of both MCL 769.1a(14) and MCL 7 80.766(11). 5 Namely, the trial court questioned defendant under oath extensively in cons idering whether defendant had the resources to remit his court-ordered restitution payments. It is also apparent from the record that the trial court concluded that defendant was certainly less tha n forthcoming in his responses regarding his financial means, a nd therefore the trial court co ncluded that defendant’s failure to remit payment was not the produc t of good faith. Unlike the fa cts of Bearden , in my view the trial court correctly recognized that this is not a case where the record supported a conclusion that defendant was making “sufficient, bona fide efforts” to se ek the financial resources to remit restitution, or to “ma[ke] all reasonable efforts to pay . . . restitution[.]” Bearden , 461 US at

668. 6

5 While I acknowledge that MCR 6.445(E)(2) imposes certain respo nsibilities on the trial court during the probation violation hearing, MCL 769.1a(14) and MCL 780.766(11) govern the trial court’s decision regarding re vocation of probation on the basis of non-payment of restitution, and the trial court complied with t hese statutory provisions.

6 The facts of this case can be distinguished from the United S tates Supreme Court’s decision in

Bearden . In Bearden , the petitioner was indigent, a nd had initially borrowed money from his parents to pay restitution. Bearden , 461 US at 662-663. The petitioner had a ninth grade education, could not read, and once he was laid off from his jo b, was unable to find other-5- On this record, where the trial court’s ultimate determination fell within the range of reasonable and principled outcome s, I conclude that the trial c ourt did not abuse its discretion in revoking defendant’s probation. People v Breeding , 284 Mich App 471, 479; 772 NW2d 810 (2009); People v Unger , 278 Mich App 210, 217; 749 NW2d 272 (2008). Additionally, wh ere it
is clear to me that the trial court concluded that defendant di d indeed have the financial means to tender restitution, that his failure to do so was willful, and that he was not acting in good faith, I conclude that defendant’s right s under the Fourteenth Amendment were protected. Bearden , 461 US at 672-673; Tate v Short , 401 US 395, 400; 91 S Ct 668; 28 L Ed 2d 130 (1971); MCL 780.766(11); MCL 769.1a(14).

Therefore, I would affirm the t rial court’s revocation of defe ndant’s probation.

/s/ Karen M. Fort Hood

employment. Id . The United States Supreme Court noted that “[t]he record ind icates that petitioner had no income or assets . . . .” Id . at 663. In contrast, it is clear in this case that the
trial court found dubious defendant’s claims that he did not ha ve the financial means to satisfy the restitution order. Put another way, the record supports th e trial court’s conclusion that defendant could have paid the restitution order, but simply neg lected to do so. Such inaction on the part of a defendant will no t be protected by the constituti on. Id . at 668.