- 1

- 

### 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

- Appell ee , UNPUBLISHED October 17, 2017

v No. 332730
Oakland Circuit Court

ANDRE EDWARD FRANKLIN

, LC No. 2015

- 255404

- FH

Defendant

- Appell ant

.

Before: S HAPIRO

, P .J., and H OEKSTRA and M. J. K ELLY , JJ.

P ER C URIAM

.

Defendant appeals by leave granted 1 his plea

- based conviction of first

- degree retail fraud,

MCL 750.356c. Defendant was sentenced as a four th

- offense habitual offender, MCL 769.12 , to 27 months to 20 years ’ imprisonment. Defendant ’ s appeal is focused solely on the trial court ’ s decision ordering him to pay $2,523.70 in restitution. We affirm in part and reverse in part.

At the plea hearing, t he parties stipulated to using a police report to es t ablish the factual
basis for the plea. The police report indicates that a Meijer store surveillance video showed
defendant and a female companion stealing 12 liquor bottles from the store on O ctober 14, 2014. The police report also indicates that defendant and his companion were suspected in other liquor
thefts that occurred o n October 10, 11, 15, and 27 of 2014. The total value of the stolen liquor in all five cases was reported to be $2,523 .70

. A t sentencing

, the trial court ordered defendant to

pay that amount in restitution

. Defendant did not obje ct. Almost six months later, defendant
filed a motion t o correct restitution contending that the total restitution amount of $2,523.70

erroneo usly included $1,375.07 for “ uncharged conduct. ” The trial court denied defendant ’ s motion.

1 People v Franklin , unpublished order of the Court of Appeals, entered June 7, 2016 (Docket

No. 332730).- 2

- On appeal, d efendant argues that the trial court erroneously ordered him to pay restitution for uncharged conduct. 2 Although defendant concedes that the trial co urt correctly imposed $1,148.63 in restitution for the thefts on October 10, 2014 and October 26, 2014, he contends that the remaining $1,375.07 should be vacated because the language of the Michigan restitution statute, MCL 780.766(2), prohibits imposing restitution for uncharged conduct. MCL 780.766(2) provides as follow:

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 ad dition 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

. For an offense that is resolved by assignment of the defendant to youthful trainee status, by a delayed sentence or deferred judgment of guilt, or in another way that is not an acquittal or unconditional dismissal, the court shall order the restitution required
under this section.

Defendant ’ s argument is ce ntered on People v McKinley , 496 Mich 410; 852 NW 2d 770 (2014) . In McKinley , the Supreme Court explained that “ conduct for which a defendant is criminally charged and convicted is necessarily part of the course of conduct th at gives rise to the
conviction

. ” Id. at 420 . Conversely, the Court continued, “ conduct for which a defendant is not criminally charged and convicted is necessarily not part of a course of conduct that gives rise to
the conviction. ” Id . In other words, restitution based on “ uncharge d conduct, ” which the Court
defined as “ criminal conduct that the defendant allegedly engaged in that was not relied on as a basis for any criminal charge and therefore was not proved beyond a reasonable doubt to a trier
of fact

, ” id

. at 413 n 1, cannot be sustained. I d. at 413 , 421

.

Defendant ’ s conviction was based on the aggregate value of all the thefts he committed at the store between October 10, 2014 and October 26, 2014 . This charge is consistent with MCL

750.356 c (3) which provides for charging based on aggregate values in a course of conduct within any 12 month period

. T he felony information states that the charged felony was
committed “ [b]etween October 11, 2014 and October 26, 2014. ” At the plea hearing, the following exchange took place:

T

he court : Because this is a plea of no contest I will not question you with regard to your participation in the crime but[,] for purposes of ascertaining the

court ’ s jurisdiction to accept the plea can you confirm for me that the incidents
from which this case arose occurred on or about October 11 th through October

26 th of 2014 in Auburn Hills?

Defendant : Yes.

2 “The proper application of MCL 780.766(2) and other statutes authorizing assessment of restitution at sentencing is a matter of statutory interpretation, which we review de novo.” People v McKinley , 496 Mich 410, 414

- 415; 852 NW2d 770 (2014).- 3

- Contrary to defendant ’ s assertion, the police report does provide support for the challenged portion of the award. Although it only specifies the n umber of ite ms stolen on October 14, 2014,
it state s that the total amount stolen by defendant and his female companion from the store during the relevant period is $2,523.70

.

Defendant ’ s argument that his restitution should be reduced by $1

, 305.07 theref ore fails. However, defendant correctly points out that $17 6 .85 of the assessment arose out of a theft
committed solely by his female companion. The assessment should therefore be reduced by that

sum.

Defendant also argues that Michigan ’ s restitution sc heme is unconstitutional because it permits restitution based on facts never submitted to a jury or proven beyond a reasonable doubt. This question was recently considered in People v Foster , 319 Mich App 365, ___; ___NW2d__

_ (2017) ; slip op at 10

- 11

, whe re it was rejected on the grounds that restitution is not punishment. Also, in People v Corbin , 312 Mich App 352, 373 n 5; 880 N W2d 2 (2015), we
concluded that “ [n]othing in Lockridge 3 suggests that its reasoning [regarding sentencing guidelines] encompasses restitution orders entered in conjunction with sentencing. ” Pursuant to MCR 7.215(C)(2),(J)(1) we are bound by Corbin and Foster , and so reject defendant ’ s argument.

We remand for t he ministerial task of vacating $176.85 from the restitution order and affirm the remaining award. We do not retain jurisdiction

.

/s/ Douglas B. Shapiro
/s/ Joel P. Hoekstra /s/ Michael J. Kelly

3 People v Lockridge , 498 Mich 358, 389, 399; 870 NW 2d 502 (2015).