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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UNPUBLISHED

August 2, 2018

v No. 336402

Oakland Circuit Court

JOSEPH WELLS STAPLETON, LC No. 2003-188463-FH

Defendant-Appellant.

Before: CAVANAGH, P.J., and STEPHENS and SWARTZLE, JJ.

PER CURIAM.

Defendant appeals by delayed leave granted1 an order providing that the Department of 

Corrections should no longer be collecting fees or costs from defendant’s prisoner account under 

this case number but refusing to order the return of funds already collected from defendant’s 

prisoner account. We vacate the portion of the trial court’s order denying defendant’s request 

that any funds collected from him in this case should be returned to him and remand for further 

proceedings consistent with this opinion.

I. BACKGROUND

On November 20, 2002, defendant and a co-defendant, Lance Schmitt, viciously 

assaulted a man in a McDonald’s parking lot. In February 2003, defendant pleaded no contest in 

this case to assault with intent to do great bodily harm (AIGBH), MCL 750.84. He was 

sentenced to 11 months in jail and three years of probation for the AIGBH conviction. 

Defendant was ordered to pay restitution along with other costs and assessments. 

The victim subsequently died due to complications from a surgical procedure to address 

an injury inflicted in the assault. In 2005, defendant was convicted of second-degree murder, 

MCL 750.317, in a separate lower-court file and sentenced to 20 to 40 years of imprisonment for 

that conviction. With respect to the AIGBH conviction and the question of double jeopardy, the 

trial court in the murder case took up the matter during the co-defendant’s sentencing hearing:

 1 People v Stapleton, unpublished order of the Court of Appeals, entered April 20, 2017 (Docket 

No. 336402). 
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[Prosecutor]: Your Honor, I would at the point and time, [co-defendant] 

was convicted earlier on, as a matter of fact, this goes to both defendants. Prior in 

front of Judge Sosnick they were convicted of assault with intent to do great 

bodily harm.

Now, that the jury has found them guilty of Second-Degree Murder and 

they’re going to be sentenced on Second-Degree Murder, I move to vacate the 

original charge of assault to do great bodily harm. They cannot be convicted of 

both.

So, I move to vacate the original, which we’ll present the necessary order 

to Judge Sosnick [in the AIGBH case]. We just wanted to place it on the record 

before this court.

* * *

THE COURT: So, . . . pursuant to your stipulation the prior conviction on 

the underlying Assault With Intent to Do Great Bodily Harm Less Than Murder is 

vacated. [Sentencing Hr at 45-46 (emphasis added).]

Defendant and his legal counsel were both in the courtroom during this part of co-defendant’s 

sentencing. At the conclusion of co-defendant’s sentencing, the trial court immediately took up 

sentencing of defendant. Neither the parties nor the trial court mentioned defendant’s prior 

conviction for AIGBH, and no written order vacating or setting aside defendant’s conviction and 

sentence for AIGBH was entered in the instant lower-court file.

While the trial court in the instant case did not enter an order vacating defendant’s 

AIGBH conviction, the trial court did enter an order discharging defendant “from probation

supervision, and any unfulfilled obligations or conditions of the sentence” in light of his prison 

term in the murder case. The probation-discharge order noted that “restitution may be pursued 

according to law.” Yet, while there was discussion of ordering restitution at the sentencing 

hearing in the murder case, and the trial judge in that murder case stated that restitution should be 

determined within seven days of the sentencing hearing, no order of restitution was entered in 

that case.

Defendant appealed his murder conviction and sentence. This Court reversed and 

remanded for a new trial, with a dissenting opinion from then-Judge Zahra. People v Stapleton, 

unpublished opinion of the Court of Appeals, issued July 31, 2007 (Docket No. 264175). In lieu 

of granting leave, the Supreme Court reversed the judgment of this Court for the reasons stated 

in the dissenting opinion and remanded for consideration of defendant’s remaining issues. 

People v Stapleton, 480 Mich 962, 962; 741 NW2d 512 (2007). On remand, this Court affirmed 

defendant’s conviction and sentence. It does not appear that either party on appeal challenged 

any aspect of defendant’s earlier conviction for AIGBH; in fact, this Court observed in a 

footnote, “Defendant’s assault conviction was vacated at the time of sentencing in this case.” 

People v Stapleton, unpublished opinion of the Court of Appeals, issued May 20, 2008 (Docket 

No. 264175), p 2 n 3.
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In 2016, defendant filed in this case a motion to vacate an order to remit funds, arguing 

that the collection of funds from his prison account violated his constitutional right to due 

process. In response, the prosecutor asserted that defendant’s conviction for AIGBH was 

vacated upon defendant’s conviction of second-degree murder for the same underlying act that 

led to the AIGBH conviction; the prosecutor further asserted that the conditions attached to 

defendant’s AIGBH conviction were set aside when that conviction was vacated. The prosecutor 

agreed with defendant that the order to remit funds in this case should be vacated given the 

contention that the AIGBH conviction was set aside. But the prosecutor indicated that he would 

petition the trial judge in the murder case to order that the outstanding restitution amount be 

included in the judgment of sentence in that case. The trial court granted defendant’s motion to 

vacate the order to remit in this case. The trial court took note of the prosecutor’s concession 

that the order to remit should be vacated given the assertion that the AIGBH conviction had been 

set aside, and the trial court stated that “[t]hese and any additional fees should have been 

transferred to/ordered in” the murder case.

Later in 2016, defendant filed a motion seeking enforcement of the trial court’s order

granting the earlier motion to vacate the order to remit. Defendant indicated that funds were still 

being collected from his prison account. He asked that the Department of Corrections be ordered 

to cease removing funds from defendant’s account and that any funds collected under this case 

number be returned to defendant. The trial court denied defendant’s request that any collected 

funds should be returned to him. The trial court stated that it was only by a clerical error that 

“the funds ordered in this case” did not get transferred to the murder case. The trial court 

indicated that defendant should receive “a credit for any fees collected on this case against any 

obligation in” the murder case. The trial court further stated: “To the extent that [the Department 

of Corrections] is collecting fees based on the Judgment of Sentence in this case, said Judgment 

of Sentence is set aside. [The Department of Corrections] should no longer be collecting fees or 

costs under [this case number] for any reason.”

This appeal ensued.

II. ANALYSIS

Defendant argues that the refusal to order the return of funds collected from his prison 

account under the instant case number constitutes a due-process violation. A defendant’s 

argument that his right to due process was violated presents a constitutional question that is 

reviewed de novo. People v Wilder, 485 Mich 35, 40; 780 NW2d 265 (2010). 

Post-Appeal Relief Under MCR 6.500. Defendant is pursuing his appeal pro se. While 

he has not labeled his action as one brought under MCR 6.500 et seq., the deadline for any direct 

appeal of his original AIGBH conviction and sentence has long passed. Given this, MCR 6.500 

“is the exclusive means to challenge” any aspect of his conviction and sentence in state court. 

People v Watroba, 193 Mich App 124, 126; 483 NW2d 441 (1992). Looking past the form of 

his appeal to its substance, it is clear that defendant’s action is one for post-appeal relief from a 

criminal conviction and sentence. Thus, we consider defendant’s arguments through the lens of 

MCR 6.500 et seq. 
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We need not determine whether defendant can show good cause and actual prejudice to 

establish any right to relief here. MCR 6.508(D)(3)(a), (b). Relief can be had under the court 

rule when there is a “jurisdictional defect” with the conviction and sentence. People v 

Carpentier, 446 Mich 19, 27; 521 NW2d 195 (1994). Defendant’s argument that the funds 

collected from his prison account in this case should be returned to him, which is premised on 

the view that the AIGBH conviction and sentence were vacated, effectively rests on doublejeopardy considerations. A jurisdictional defect has thereby been asserted, obviating the need for 

defendant to establish good cause and actual prejudice under MCR 6.508(D)(3).

Defendant’s Conviction for AIGBH. On appeal, the prosecutor raises—for what appears 

to be the first time in this case or the murder case—the question of whether defendant’s AIGBH 

conviction was actually vacated in 2005. We are not unsympathetic to the prosecutor’s position, 

as the sentencing proceedings in the murder case are not a model of judicial clarity. Moreover, 

under current law, it is an open question whether there is even a violation of double jeopardy 

when a defendant is convicted of both AIGBH and second-degree murder on facts arising from 

the same event. See People v Ream, 481 Mich 223; 750 NW2d 536 (2008) (applying the 

abstract-legal elements tested to determine legislative intent with regard to multiple punishments

when the legislative intent is otherwise unclear); People v Bailey, 451 Mich 657; 549 NW2d 325 

(1996) (concluding that AIGBH is a cognate lesser-included offense to second-degree murder, 

rather than an offense necessarily included within second-degree murder); cf People v Weissert, 

485 Mich 860; 771 NW2d 752 (2009) (Kelly, CJ, concurring in the denial of leave in that case

and opining that People v Ream should not be applied to convictions and sentences prior to the 

date that Ream was issued); (Corrigan, J, concurring in the denial of leave in that case and 

opining that this Court should have addressed the impact of People v Ream, if any, on the 

defendant’s conviction and sentence).

With that said, the prosecutor has not filed a cross appeal in this case, nor did the 

prosecutor raise the issue as a question presented for our review. In 2005, during the codefendant’s sentencing hearing, the prosecutor clearly indicated his intent that the motion to 

vacate apply to both defendants, and the trial court granted the motion from the bench. Then, on 

appeal of the murder case, this Court noted in a footnote that the AIGBH conviction had been

vacated. Stapleton (Docket No. 264175), unpub op at 2 n 3. If the prosecutor had believed that 

the statement was factually incorrect, then the prosecutor could have asked that the statement be 

corrected in a motion for reconsideration; yet, no such motion was submitted to the Court. In 

fact, in the recent proceedings below, the prosecutor has taken the position that the AIGBH 

conviction had been vacated. Therefore, we conclude that the prosecutor on appeal has waived 

any challenge on whether the AIGBH conviction had been earlier vacated. People v Carines, 

460 Mich 750, 762 n 7; 597 NW2d 130 (1999). On remand, for purposes of clarifying the 

record, the trial court shall enter a written order vacating the AIGBH conviction consistent with 

the 2005 sentencing proceedings. MCR 7.216(A); People v Russel, 254 Mich App 11, 22; 656 

NW2d 817 (2002), rev’d on other grounds 471 Mich 182; 684 NW2d 745 (2004) (concluding 

that, where the trial court failed to enter an order consistent with its ruling from the bench, 

remand was necessary for the ministerial task of entering that order). 

Restitution for the AIGBH Conviction. Turning to the substantive issue raised by 

defendant, he argues that it would violate his right of due process if the funds collected from his 

prison account for his sentence in this case are not returned to him. In Nelson v Colorado, ___ 
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US ___, ___; 137 S Ct 1249, 1252; 197 L Ed 2d 611 (2017), the United States Supreme Court 

held as follows:

When a criminal conviction is invalidated by a reviewing court and no 

retrial will occur, is the State obliged to refund fees, court costs, and restitution 

exacted from the defendant upon, and as a consequence of, the conviction? Our 

answer is yes. Absent conviction of a crime, one is presumed innocent. Under 

the Colorado law before us in these cases, however, the State retains convictionrelated assessments unless and until the prevailing defendant institutes a discrete 

civil proceeding and proves her innocence by clear and convincing evidence. 

This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due 

process.

“To comport with due process, a State may not impose anything more than minimal procedures 

on the refund of exactions dependent upon a conviction subsequently invalidated.” Id. at 1258.

It is true here that, unlike in Nelson, defendant’s conviction for AIGBH was vacated 

solely because of double-jeopardy considerations, and the reasoning in Nelson concerning the 

presumption of innocence is thus inapt given that defendant is not innocent, but rather, has been 

adjudged guilty of a more serious crime, i.e., second-degree murder. But this only means that 

any restitution should have been ordered in the murder case, given that the second-degree 

murder conviction is the only valid conviction remaining.

The prosecutor asserts that there is no time limitation in Michigan for seeking additional 

restitution “based upon new information related to the injury, damages, or loss for which the 

restitution was ordered.” MCL 780.766(22). The prosecutor also cites case law supporting the 

notion that a restitution order may be sought even if statutory deadlines have been missed. See 

Dolan v United States, 560 US 605, 608; 130 S Ct 2533; 177 L Ed 2d 108 (2010). These are, 

however, arguments to be directed to the trial court in the murder case—the prosecutor 

apparently has moved to amend the judgment of sentence in the murder case to provide for 

restitution, but there is no indication that any such amendment has taken place. This Court’s 

appellate role is to review the proceedings in the present case—which is an appeal of an order 

following defendant’s AIGBH conviction—not to act as the trial court in the murder case in 

deciding whether to order restitution in the murder case.

The prosecutor and the trial court in this case have suggested that any funds collected in 

this case should be retained and credited to defendant’s restitution obligation in the murder case, 

but again, there is no indication that any order providing for restitution has been entered in the 

murder case as of this date. Thus, no valid order of restitution currently exists—the AIGBH 

conviction was vacated on double-jeopardy grounds, and restitution has not yet been ordered in 

the murder case. No legal basis presently exists to conclude that the funds obtained from 

defendant in this case may be retained. Under Nelson, it appears at this time that due process 

requires that the funds exacted from defendant in this case be returned to him. 

Accordingly, within 28 days of the date of this Court’s opinion, the trial court on remand 

shall enter an order providing for the return to defendant of funds collected from him under this 

case number, unless an order or judgment requiring defendant to pay restitution is entered in the 
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murder case within that 28-day time-period, in which event the trial court in this case shall 

undertake further consideration of this issue as described here. As noted earlier, it appears that 

the prosecutor has moved to amend the judgment of sentence in the murder case to require 

defendant to pay restitution in that case but that this motion has not yet been decided as of the 

date of this opinion. If restitution is ordered in the murder case within the 28-day time-period 

described here, then the trial court in this case shall consider whether the funds collected under 

this case number may be retained and credited to defendant’s restitution obligation in the murder 

case and shall enter an order resolving that issue within 56 days of the date of this Court’s 

opinion. See MCR 7.216(A)(7).

Vacated in part and remanded for further proceedings consistent with this opinion. We 

do not retain jurisdiction.

/s/ Mark J. Cavanagh

/s/ Cynthia Diane Stephens

/s/ Brock A. Swartzle