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### STATE OF MICHIGAN

COURT OF APPEALS

STATE TREASURER,

Plaintiff-Appellee, UNPUBLISHED October 20, 2016

v No. 327657 Lenawee Circuit Court BRADLEY BENCES, RANDIE BENCES, Successor Power of Attorney, and BRIAN BENCES, Power of Attorney and Joint Receiver, LC No. 14-005070-CZ

Defendants-Appellees,

and

MONROE BANK & TRUST,

Defendant,

and

JOHN BURTLE,

Intervenor-Appellant.

Before: G ADOLA , P.J., and B ORRELLO and S TEPHENS , JJ.

P ER C URIAM

. Intervening-appellant, John Bur tle, appeals as of right the tr ial court’s stipulation of settlement and final order in an action between plaintiff, the State Treasurer, defendantsappellees, Bradley Bences (Bences), successor power of attorney Randie Bences, power of attorney and joint receiver Bryan Bences, and defendant, Monroe Bank & Trust, pursuant to the State Correctional Facility Reim bursement Act (SCFRA), MCL 800. 401 et seq . At issue in this appeal is an earlier order in which the trial court denied Burt le’s motion to intervene in the SCFRA action. We affirm.

In 2013, Bences was convicted of assault with a dangerous weap on (felonious assault), MCL 750.226, among other crimes, for stabbing Burtle. The judg ment of sentence ordered-2- Bences to pay $108,589 in restitution, and the court entered an order to remit funds for fines, costs, and assessments on December 11, 2013.

On May 27, 2014, the State Treasurer filed a complaint against defendants pursuant to the SCFRA, asserting that Bences was a state prisoner subject to th e jurisdiction of the Michigan Department of Corrections (MDOC), and seeking reimbursement for his incarceration costs. Burtle filed a motion to intervene in the SCFRA action pursuant to MCR 2.209(A). Following a hearing, the trial court denied his motion.

On appeal, Burtle argues that t he trial court abused its discr etion by denying his motion to intervene because he had an interest in the SCFRA action as a r esult of the restitution order. Specifically, Burtle asserts that his payment under the restitu tion order should take priority over the State Treasurer’s reimburse ment claim under the SCFRA. We disagree.

“A trial court’s decision on a motion to intervene is reviewed for an abuse of discretion.” Hill v L F Transp, Inc , 277 Mich App 500, 507; 746 NW2d 118 (2008), citing Vestevich v West Bloomfield Twp , 245 Mich App 759, 761; 630 NW2d 646 (2001). “This Court revi ews de novo a trial court’s resolution of issues of law, including the inte rpretation of statutes and court rules.” Hill , 277 Mich App at 507, citing Cardinal Mooney High Sch v Mich High Sch Athletic Ass’n

, 437 Mich 75, 80; 467 NW2d 21 (1991).

A person may intervene in an action by right

when the applicant claims an inte rest relating to the property or transaction which is the subject of the action and is so situated that the dispos ition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represe nted by existing parties. [MCR 2.209(A)(3).]

“ ‘The rule for intervention should be liberally construed to a llow intervention where the applicant’s interests may be inadequately represented.’ ” Hill , 277 Mich App at 508, quoting Neal v Neal , 219 Mich App 490, 492; 557 NW2d 133 (1996). Nevertheless, “ ‘intervention may not be proper where it will have the effect of delaying the act ion or producing a multifariousness of parties and causes of action.’ ” Hill , 277 Mich App at 508, quoting Precision Pipe & Supply, Inc v Meram Constr, Inc , 195 Mich App 153, 157; 489 NW2d 166 (1992).

In this case, the trial court correctly concluded that Burtle did not have a sufficient interest in the property at issue in the State Treasurer’s SCFR A action against Bences to mandate his intervention because he did not have a perfec ted interest a rising from the rest itution order. At the time Burtle filed his motion to intervene, he had not yet f iled a personal injury action against Bences. Although Burtle was awarded restitution as part of Ben ces’s sentence, he provided no evidence confirming that Bences failed to satisfy the restituti on order, and he failed to seek enforcement of the order beyond m oving to intervene in the Stat e Treasurer’s SCFRA action.-3- Trial courts are required to award restitution to crime victim s. Const 1963, art 1, § 24; MCL 769.1a(2); 1 MCL 780.766(2); 2 In re Lampart , 306 Mich App 226, 232-233; 856 NW2d 192 (2014). Restitution must be ma de immediately, unless the c ourt orders otherwise. MCL 769.1a(10); MCL 780.766(10). Further, both the Code of Crimina l Procedure, MCL 760.1 et
seq ., and the Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq. , provide that

[a]n order of restitution . . . remains effective until it is s atisfied in full. An order of restitution is a judgment a nd lien against all property of t he defendant for the amount specified in the order of restitution. The lien may be recorded as provided by law. An order of restitution may be enforced by the prosecu ting attorney, a victim, a victim’s estate, or any other person or entity named in the order to receive the restitution in the same manner as a judgment in a c ivil action or a lien. [MCL 769.1a(13); MCL 780.766(13).]

Burtle does not allege, and the record contains no evidence, th at Burtle sought to enforce the restitution order in the same manner as a judgment in a civil a ction or a lien. Therefore, Burtle did not have a perfected interes t in the assets sought by the S tate Treasurer at the time the State Treasurer initiated the SCFRA action.

Furthermore, the court did not abuse its discretion by denying Burtle’s motion to intervene because an SCFRA acti on is not the type of proceeding in which Burtle had the right to intervene. Pursuant to M CL 800.403(2) of the SCFRA,

[i]f the attorney general . . . has good cause to believe that a prisoner has sufficient assets to recover not less than 10% of the estimated cost of care of the prisoner or 10% of the estimated c ost of care of the prisoner f or 2 years, whichever is less, the attorney general shall seek to secure re imbursement for the expense of the state of Michigan f or the cost of care of that p risoner.

1 MCL 769.1a(2) provides the following: Except as provided in [MCL 769.1a(8)], when sentencing a defen dant convicted of a felony, misdemeanor, or ordinance violation, the court shall order, in addition to or in lieu of any other penalty authorized by la w 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.

2 MCL 780.766(2) provides, in relev ant part, the following: Except as provided in [MCL 780.766(8)], when sentencing a defe ndant 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 r equired by law, that the defendant make full restitution to any victim of the defend ant’s course of conduct that gives rise to the conviction or to the victim’s es tate.-4- In so doing, the attorney general may file a complaint seeking reimbursement. MCL 800.404(1). The court must then “issue an order to show cause why the praye r of the complainant should not be granted.” MCL 800.404(2). If the court concludes that a pr isoner has assets subject to the SCFRA, it must order any person possessing those assets “to app ropriate and apply the assets or a portion thereof toward reim bursing the state . . . .” MCL 80 0.404(3).

Under the SCFRA, “the state . . . is not a ‘creditor,’ nor is the relationship between a prisoner and the state a typical debtor-creditor relationship.” State Treasurer v Schuster , 456 Mich 408, 419; 572 NW2d 628 (1998). Further, “the statutory ob ligation created by the SCFRA is not a ‘personal judgment or lia bility against t he prisoner,’ but ‘a lien upon his estate[.]’ ” State Treasurer v Sheko , 218 Mich App 185, 189; 553 NW2d 654 (1996), quoting Auditor General v Hall , 300 Mich 215, 221; 1 NW2d 516 (1942). The SCFRA affords the state a number of tools to secure a prisoner’s assets for reimbursement that would not be available to the average creditor in a civil action. For example, without formal discov ery, all prisoners must complete a form listing their assets. MCL 800.401b. The statute then pro vides:

[T]o secure reimbursement under [the SCFRA], the attorney gener al may use any remedy, interim order, or enforcement procedure allowed by law or court rule including an ex parte restraini ng order to restrain the prisone r or any other person or legal entity in possession or having custody of the estate o f the prisoner from disposing of certain property pe nding a hearing on an order to show cause why the particular property should not be applied to reimburse the state as provided for under this act. [MCL 800.404a(1).]

An ordinary creditor does not have, and is not entitled to, the unique statutory tools that are available to the state when it pursues a reimbursement claim un der the SCFRA. This suggests that the Legislature intended to give such state reimbursement claims priority over the claims of other creditors. The mere fact that Burtle is a beneficiary of a restitution order likewise does not confer him with the same statutory advantages available to the state. Accordingly, it would be improper to allow Burtle, or any other potential creditor, to i ntervene in an SCFRA action between the state and a prisoner and thus benefit from these st atutory tools.

Moreover, even if the court a bused its discretion by denying B urtle’s motion to intervene, the court’s error was harmless. Despite Burtle’s argument to t he contrary, his restitution order would not have taken priority over the state’s reimbursement cl aim pursuant to the SCFRA. The SCFRA grants the state access to most of a prisoner’s assets fo r reimbursement. The statute defines “assets” to mean “prope rty, tangible or intangible, rea l or personal, belonging to or due a prisoner or former prisoner includ ing income or payments to suc h prisoner from so cial security, worker’s compensation, veteran’s compensation, pension benefits , . . . or from any other source whatsoever . . . .” MCL 800.401a(a). The only property exclud ed from the definition is the prisoner’s homestead up to $50,000 and money saved from wages p aid to the prisoner while he or she was confined to a state co rrectional facility. MCL 800. 401a(a)( i ) and ( ii ). Further, when entering a reimbursement order, a court need only consider the prisoner’s legal and moral obligations to dependents. MCL 800.404(5).

In other words, “ ‘the plain and broad language of the reimbur sement provisions at issue indicates a legislative intent t o shift the burden of incarcera tion expenses to prisoners and from-5- the taxpayers whenever possible.’ ” State Treasurer v Snyder , 294 Mich App 641, 647; 823 NW2d 284 (2011), quoting Schuster , 456 Mich at 418. The SCFRA does not require a court entering a reimbursement order to consider any restitution the prisoner may owe a victim. See MCL 800.404(5). This Court’s opinion in Sheko further illustrates the broad grant of authority the Legislature gave to the state under the SCFRA. In Sheko , 218 Mich App at 186-187, the state filed a complaint pursuan t to the SCFRA to intercept mone y a prisoner was going to receive as part of an arbitration award. This Court rejected the priso ner’s argument that he preferred to pay the debts he owed to his br other first, c oncluding that

any common-law right defendant may have had to prefer creditors does not apply to actions under the SCFRA. Accepting defendant’s position wou ld lead to the absurd result of the state receiving reimbursement only when a prisoner has no other financial obligations or, h aving other fina ncial obligati ons, does not object to the state securing reimburseme nt from the prisoner’s assets. [ Id . at 188.]

The CVRA does not explicitly provide that restitution orders t o victims take priority over the state’s reimbursement claim s under the SCFRA. Under MCL 78 0.766a(1) and (2), restitution payments take priority over “fines, costs, . . . assessments, p robation or parole supervision fees, or other payments arising out of the same criminal proceeding . . . .” However, these statutory provisions make no reference to reimbursement pursuant to the S CFRA. Further, MCL 780.768 states that restitution must be paid by a prisoner before reimb ursement under the SCFRA, but only in cases in which the prisone r has derived a profit from r ecollections of thoughts or feelings or the sale of memorabilia related to the offense committed by the prisoner. This suggests that restitution orders do not take p riority over SCFRA claims under general circumstances. In sum, Burtle has not shown that he was entitled to intervene in the S CFRA action, or that he was entitled to priority dist ribution over the state.

Affirmed.

/s/ Michael F. Gadola /s/ Stephen L. Borrello /s/ Cynthia Diane Stephens