PEOPLE v McKINLEY

Docket No. 147391. Argued April 3, 2014 (Calendar No. 4). Decided June 26, 2014.

Matthew C. McKinley was found guilty by a jury in the Calhoun Circuit Court of larceny 

over $20,000, malicious destruction of property over $20,000, and inducing a minor to commit a 

felony in connection with a series of thefts of commercial air conditioning units. The trial court, 

Conrad J. Sindt, J., sentenced the defendant, as a fourth-offense habitual offender, to concurrent 

terms of 12 to 25 years in prison on each count and reserved a decision regarding restitution. 

Following a hearing, and over defense counsel’s objection to the amount of restitution assessed, 

the court entered an amended judgment of sentence to reflect the imposition of $158,180.44 in 

restitution against the defendant. Of that total, the defendant was ordered to pay $63,749.44 to 

the four victims of the offenses of which he was convicted and $94,431 to the victims of 

uncharged thefts attributed to the defendant by his accomplice. The Court of Appeals, FORT 

HOOD, P.J., and FITZGERALD and O’CONNELL, JJ., vacated the defendant’s conviction for larceny 

over $20,000, but otherwise affirmed his convictions and sentences in an unpublished opinion 

per curiam issued May 16, 2013 (Docket No. 307360). The panel rejected the defendant’s 

argument that Michigan’s restitution scheme was unconstitutional because it permitted trial 

courts to impose restitution on the basis of facts not proved to the trier of fact beyond a 

reasonable doubt. The Supreme Court granted defendant’s application for leave to appeal, 

limited to the issues whether an order of restitution was equivalent to a criminal penalty and 

whether Michigan’s statutory restitution scheme was unconstitutional insofar as it permitted the 

trial court to order restitution based on conduct for which a defendant was not charged that had 

not been submitted to a jury or proven beyond a reasonable doubt. 495 Mich 897 (2013).

In an opinion by Justice MCCORMACK, joined by Chief Justice YOUNG and Justices 

MARKMAN, KELLY, ZAHRA, and VIVIANO, the Supreme Court held:

A trial court’s restitution award that is based solely on conduct for which the defendant 

was not charged may not be sustained. People v Gahan, 456 Mich 264 (1997), was overruled to 

the extent it held that MCL 780.766(2) authorizes the sentencing court to order criminal 

defendants to pay restitution to all victims, even if those specific losses were not the factual 

predicate for the conviction.

1. It was not necessary to reach either of defendant’s constitutional challenges to the 

restitution award. Under the rule of constitutional avoidance, it was necessary to revisit the 

statutory analysis of MCL 780.766(2) set forth in Gahan because the statutory analysis in that 

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice:

Robert P. Young, Jr.

Justices:

Michael F. Cavanagh

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:

Corbin R. Davis
case was plainly incomplete, and the defendant’s constitutional challenge to restitution based on 

conduct for which he had not been charged was a novel one that other courts had not addressed. 

Defendant’s challenge to remainder of the restitution award was waived because he did not 

challenge it in his initial application for leave to appeal in this Court, but instead had posited that 

that portion passed constitutional muster.

2. The Gahan Court’s reading of MCL 780.766(2) was not sustainable and was

overruled. The plain language of the statute authorizes the assessment of full restitution only for 

a victim of the defendant’s course of conduct that gave rise to the conviction. Given that only 

crimes for which a defendant was charged could cause or give rise to the conviction, the statute 

ties the defendant’s course of conduct to the offenses for which the defendant was convicted and 

requires a causal link between them. Therefore, any course of conduct that did not give rise to a 

conviction could not be relied on as a basis for assessing restitution against a defendant. 

Similarly, the statute requires that “any victim” be a victim of the defendant’s course of conduct 

giving rise to the conviction, indicating that a victim for whom restitution was assessed need also 

have a connection to the course of conduct that gave rise to the conviction. Allowing restitution 

to be assessed for uncharged conduct would read the phrase “that gives rise to the conviction” 

out of the statute by permitting restitution awards for “any victim of the defendant’s course of 

conduct” without any qualification. This conclusion was reinforced by reading MCL 780.766(2) 

in pari materia with other provisions in the Crime Victim’s Rights Act, MCL 780.751 et seq., 

that also require a direct, causal relationship between the conduct underlying the convicted 

offense and the amount of restitution to be awarded. Because MCL 780.766(2) did not authorize 

the assessment of restitution based on uncharged conduct, the trial court erred by ordering 

defendant to pay $94,431 in restitution to the victims of air conditioner thefts attributed to 

defendant by his accomplice but not charged by the prosecution.

3. Gahan was wrongly decided because it interpreted only one phrase in MCL 

780.766(2) and failed to address another. Under the factors for overruling prior decisions set 

forth in Robinson v Detroit, 462 Mich 439 (2000), Gahan was overruled to the extent that it held 

that MCL 780.766(2) authorized the sentencing court to order criminal defendants to pay 

restitution to all victims, even if those specific losses were not the factual predicate for the 

conviction. 

Judgment of sentence vacated in part; case remanded for entry of an order assessing 

$63,749.44 against defendant.

Justice CAVANAGH, dissenting, disagreed with the majority’s characterization of Gahan

and would not have overruled it, particularly given that Gahan’s interpretation of MCL 

780.766(2) was not fully briefed or argued. He explained that when the Crime Victim’s Rights 

Act was enacted, the well-established common-law meaning of the phrase “course of conduct”

included uncharged conduct that was related to the illegal scheme from which the defendant’s 

conviction arose, which the Legislature was presumed to have known at the time. He stated that 

the majority’s interpretation read the phrase “course of conduct” out of the statute, effectively 

rewriting it to limit restitution to only those losses suffered by victims of the defendant’s conduct 

that resulted in a conviction.

©2014 State of Michigan
FILED June 26, 2014

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

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 147391

MATTHEW CHARLES McKINLEY, a/k/a 

JEFFREY ALAN NEWBOLD,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH 

MCCORMACK, J.

In this case, we decide whether a trial court’s restitution award that is based solely 

on uncharged conduct1 may be sustained. We conclude that it cannot. We therefore 

overrule our decision in People v Gahan, 456 Mich 264; 571 NW2d 503 (1997), to the 

extent that Gahan held that MCL 780.766(2) “authorizes the sentencing court to order 

 1 For purposes of this opinion, the phrase “uncharged conduct” refers to 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. 

Michigan Supreme Court

Lansing, Michigan

Opinion Chief Justice:

Robert P. Young, Jr.

Justices:

Michael F. Cavanagh

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano
2

criminal defendants to pay restitution to all victims, even if those specific losses were not 

the factual predicate for the conviction.” Gahan, 456 Mich at 270. Accordingly, we 

vacate the portion of the judgment of sentence ordering that the defendant pay 

$158,180.44 in restitution, and remand to the trial court for entry of an order assessing 

$63,749.44 in restitution against the defendant. 

I. FACTS AND PROCEDURAL HISTORY

In January 2011, Battle Creek police officers arrested the defendant because they 

believed him to be responsible for a series of thefts of commercial air conditioning units 

in the area. Following a trial, a jury found the defendant guilty of larceny over $20,000, 

malicious destruction of property over $20,000, and inducing a minor to commit a 

felony.2

 The trial court sentenced the defendant, as a fourth-offense habitual offender, to 

concurrent terms of 12 to 25 years in prison on each count. The trial court reserved a 

decision on restitution until after sentencing. Following a hearing, and over defense 

counsel’s objection to the amount of restitution assessed, the trial court entered an 

amended judgment of sentence to reflect the imposition of $158,180.44 in restitution 

against the defendant. Of that total, the defendant was ordered to pay $63,749.44 to the 

four victims of the offenses of which he was convicted and $94,431 to the victims of 

uncharged thefts attributed to the defendant by his accomplice.

The Court of Appeals vacated the defendant’s conviction for larceny over 

$20,000, but otherwise affirmed his convictions and sentences. People v McKinley, 

 2 The defendant employed a teenage accomplice, whom he rewarded with money and 

cigarettes, to help him remove the air conditioning units. His accomplice testified against 

the defendant at trial pursuant to a plea agreement. 
3

unpublished opinion per curiam of the Court of Appeals, issued May 16, 2013 (Docket 

No. 307360). The panel rejected the defendant’s argument that Michigan’s restitution 

scheme is unconstitutional because it permits trial courts to impose restitution on the 

basis of facts not proven to the trier of fact beyond a reasonable doubt. Id. at 8.

We granted leave to appeal, 495 Mich 897 (2013), limited to the following issues:

(1) whether an order of restitution is equivalent to a criminal penalty, and 

(2) whether Michigan’s statutory restitution scheme is unconstitutional 

insofar as it permits the trial court to order restitution based on uncharged 

conduct that was not submitted to a jury or proven beyond a reasonable 

doubt. See Southern Union Co v United States, 567 US ___; 132 S Ct 

2344; 183 L Ed 2d 318 (2012); Apprendi v New Jersey, 530 US 466; 120 S 

Ct 2348; 147 L Ed 2d 435 (2000); contra People v Gahan, 456 Mich 264 

(1997). 

II. STANDARD OF REVIEW

The proper application of MCL 780.766(2) and other statutes authorizing the 

assessment of restitution at sentencing is a matter of statutory interpretation, which we 

review de novo. Hunter v Hunter, 484 Mich 247, 257; 771 NW2d 694 (2009). “The first 

step when interpreting a statute is to examine its plain language, which provides the most 

reliable evidence of intent.” Ter Beek v City of Wyoming, 495 Mich 1, 8; 846 NW2d 531

(2014). If the statutory language is unambiguous, no further judicial construction is 

required or permitted. Id. Questions involving the constitutionality of a statute are also 

reviewed de novo. Hunter, 484 Mich at 257. 

III. ANALYSIS 

The defendant’s challenge to the restitution award is premised on the Sixth 

Amendment to the United States Constitution, specifically Apprendi and its progeny. 

Defendant challenges both the amount of the restitution award above $63,749.44 (the 
4

amount based on uncharged conduct) and the amount between $20,000 and $63,749.44 

(the amount based on convicted conduct above and beyond the amount specifically found 

by a jury). Only the former argument was preserved by a timely objection.3

 Ultimately, 

we do not reach either of defendant’s constitutional challenges to the restitution award. 

As to the former, pursuant to the widely accepted and venerable rule of constitutional 

avoidance,4

we conclude that it is necessary to revisit the statutory analysis of 

MCL 780.766(2) we set forth in Gahan. Ashwander v Tenn Valley Auth, 297 US 288, 

347; 56 S Ct 466; 80 L Ed 688 (1936) (Brandeis, J., concurring) (“[I]f a case can be 

decided on either of two grounds, one involving a constitutional question, the other a 

question of statutory construction or general law, the Court will decide only the latter.”).

5

 

 3 At the restitution hearing, defense counsel argued that “the current state of the law 

would require that . . . there would have been have [sic] some proof beyond a reasonable 

doubt that those other ‘complainants’ if you will, were also those that were victimized by 

the Defendant.” In other words, counsel argued only that the portion of the restitution 

award based on the uncharged offenses had to be proven beyond a reasonable doubt. 

4 This rule is well established in both United States Supreme Court caselaw and this 

Court’s precedent. See Ashwander v Tenn Valley Auth, 297 US 288, 347; 56 S Ct 466; 

80 L Ed 688 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a 

constitutional question although properly presented by the record, if there is also present 

some other ground upon which the case may be disposed of.”); Slack v McDaniel, 529 

US 473, 485; 120 S Ct 1595; 146 L Ed 2d 542 (2000) (quoting Justice Brandeis’s 

concurring opinion in referring to “[t]he Ashwander rule”); Smith v Curran, 267 Mich 

413, 418; 255 NW 276 (1934) (holding that the “constitutionality of an act will not be 

passed upon where a case may be otherwise decided”).

5 That is, given that we conclude that Michigan’s statutory restitution scheme does not 

permit the trial court to order restitution based on uncharged conduct, it is unnecessary to 

decide whether such a scheme would be unconstitutional. Contrary to the dissent’s 

characterization, there is nothing at all inappropriate as to the approach we have taken in 

this case, and it is an approach that is consistent with the well-established rule that the 

“constitutionality of an act will not be passed upon where a case may be otherwise 
5

We believe that adherence to that rule is particularly appropriate in this case because the 

statutory analysis in Gahan is so plainly incomplete and the defendant’s constitutional 

challenge to restitution based on uncharged conduct is a novel one that other courts have 

not addressed (indeed, have not even been called upon to address).6

 

decided[.]” Smith, 267 Mich at 418. Furthermore, the parties in this case were in no way 

denied an “opportunity to be heard” regarding this issue, as suggested by the dissent. The

parties were free to argue that Gahan wrongly held that Michigan’s statutory restitution 

scheme permits the trial court to order restitution based on uncharged conduct, and 

defense counsel did at least address this point at oral argument, at which he stated:

I think Justice McCormack’s second question is whether there is an 

alternative way of addressing this and one way would be to limit this 

Court’s previous decision in People v Gahan. In People v Gahan, this 

Court construed the statutory language very broadly where a course of 

conduct could mean anything — it didn’t — it wasn’t limited to just what 

the jury found.

In addition, in his brief filed with the Court, defense counsel specifically asked us 

to “overrule Gahan.” Finally, the prosecutor also recognized that “[t]his Court, in its 

order granting leave, pointed the parties at [Gahan] as a potential source of useful 

precedent.” Therefore, it is clear that the parties themselves recognized that they were 

accorded an opportunity to be heard regarding our decision in Gahan.

Finally, we note that despite the dissent’s criticism of our decision not to reach the 

constitutional question and its defense of Gahan’s statutory analysis, the dissent does not 

reach the constitutional question either. And if that constitutional hurdle proves 

unresolvable to the dissent, one wonders whether that opinion should be a concurrence 

instead.

6 Notably, and we believe further supporting our decision not to reach the constitutional 

issue, the apparent reason other courts have not been asked to address the argument that

the defendant raises here is because those courts have (seemingly uniformly) construed 

their restitution statutes as allowing the assessment of restitution based only on convicted 

conduct. See, e.g., Hughey v United States, 495 US 411, 413; 110 S Ct 1979; 109 L Ed 

2d 408 (1990); State v Clapper, 273 Neb 750, 758; 732 NW2d 657 (2007); 

Commonwealth v McIntyre, 436 Mass 829, 835 n 3; 767 NE2d 578 (2002) (collecting 

cases applying various standards requiring a causal relationship between the restitution 
6

As to the defendant’s challenge to the restitution award based on convicted 

conduct, we conclude that the issue is not properly before us because the defendant has 

waived it.

7

 The defendant did not raise any question regarding the portion of the 

restitution award based on convicted conduct in his initial application for leave to appeal 

in this Court, but instead posited that the entirety of the restitution award based on 

convicted conduct passed constitutional muster. Only after we granted leave to appeal 

did the defendant assert that only $20,000 of the restitution award was constitutional 

under Apprendi. A waiver “extinguishe[s] any error,” People v Carter, 462 Mich 206,

216; 612 NW2d 144 (2000), thereby foreclosing appellate review, id. at 215.

A. STATUTORY INTERPRETATION

MCL 780.766(2) provides in part that “the [sentencing] court shall order, in 

addition to or in lieu of any other penalty authorized by law 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.” 

 

award and the conviction). Accordingly, we are aware of no court that has reached the 

argument defendant preserved below: whether Apprendi and its progeny bar the 

assessment of restitution based on uncharged conduct. See also United States v Sharma, 

703 F3d 318, 323 (CA 5, 2012) (“The [Mandatory Victim Restitution Act, 18 USC 

3663A] limits restitution to the actual loss directly and proximately caused by the 

defendant’s offense of conviction. An award of restitution cannot compensate a victim 

for losses caused by conduct not charged in the indictment or specified in a guilty plea, or 

for losses caused by conduct that falls outside the temporal scope of the acts of 

conviction.”).

7 Waiver is defined as “the ‘intentional relinquishment or abandonment of a known 

right.’ ” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000), quoting People v 

Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999) (citation and quotation marks 

omitted.
7

In Gahan, we discussed the Legislature’s use of the term “course of conduct” and 

determined that term should be given a broad construction in light of its historical 

background and prior decisions from the Court of Appeals interpreting a similar statute.8

 

Gahan, 456 Mich at 271-272. Notably, however, the Gahan Court devoted no attention 

to the modifying phrase “that gives rise to the conviction . . . .”9

 8 Those prior decisions interpreted MCL 771.3(2), now MCL 771.3(1)(e), which contains 

identical language to MCL 780.766(2) for all purposes relevant to our analysis. 

Similarly, other statutes allowing for the assessment of restitution also have identical 

language for all relevant purposes. See, e.g., MCL 769.1a(2); MCL 780.826(2).

9 The dissent provides an impassioned defense of Gahan and disagrees that the Gahan

Court ignored this language, but in fact other than quoting this statutory language as part 

of its background discussion, the Gahan Court did not discuss it or attempt to interpret it 

or give independent meaning to it; it limited its statement of the question before it as 

“whether ‘course of conduct’ should be given a broad or narrow construction.” Gahan, 

456 Mich at 271. But “[c]ourts must give effect to every word, phrase, and clause in a 

statute and avoid an interpretation that renders nugatory or surplusage any part of a 

statute.” People v Couzens, 480 Mich 240, 249; 747 NW2d 849 (2008).

The dissent’s view that the Legislature intended to adopt the unique, common-law 

meaning of “course of conduct” from People v Gallagher, 55 Mich App 613; 223 NW2d 

92 (1974) is unpersuasive. First, as the dissent acknowledges, that rule was not 

universally followed. See People v Blaney, 139 Mich App 694; 363 NW2d 13 (1984). 

Second, even in cases purporting to follow Gallagher, its scope was open to 

interpretation. See People v Seda-Ruiz, 87 Mich App 100, 105; 273 NW2d 602 (1978) 

(MAHER, J., concurring) (“I write separately to state my concern that the record does not 

reveal that all the bad checks allegedly issued by defendant were made part of the plea 

agreement. Unless defendant agreed to make restitution for all the checks and the 

prosecutor agreed not to institute charges on the basis of those checks, defendant may 

not be required to make restitution for all the checks, but only those listed in the 

information to which he pled guilty and the information which was nolle prossed as part 

of the plea agreement. In such a case, of course, the prosecutor would be entitled to bring 

charges on the basis of the checks which are not part of the plea agreement.”) (emphasis 

added). We conclude that interpreting the statutory language according to its plain 

meaning is preferable to concluding that the Legislature selected such language to adopt a 

standard that was not consistently followed or fully settled.
8

We conclude that the Gahan Court’s reading of MCL 780.766(2) is not 

sustainable and must be overruled. The plain language of the statute authorizes the 

assessment of full restitution only for “any victim of the defendant’s course of conduct 

that gives rise to the conviction . . . .” The statute does not define “gives rise to,” but a 

lay dictionary defines the term as “to produce or cause.” Random House Webster’s 

College Dictionary (2000), p 1139. Only crimes for which a defendant is charged 

“cause” or “give rise to” the conviction. Thus, the statute ties “the defendant’s course of 

conduct” to the convicted offenses and requires a causal link between them. It follows 

directly from this premise that any course of conduct that does not give rise to a 

conviction may not be relied on as a basis for assessing restitution against a defendant. 

Stated differently, while conduct for which a defendant is criminally charged and 

convicted is necessarily part of the “course of conduct that gives rise to the conviction,” 

the opposite is also true; 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. 

Similarly, the statute requires that “any victim” be a victim “of” the defendant’s course of 

conduct giving rise to the conviction, indicating that a victim for whom restitution is 

assessed need also have a connection to the course of conduct that gives rise to the 

conviction. Allowing restitution to be assessed for uncharged conduct reads the phrase 

“that gives rise to the conviction” out of the statute by permitting restitution awards for 

“any victim of the defendant’s course of conduct” without any qualification.10 The 

statute, however, provides an explicit qualification that the Gahan Court did not address.

 10 Our reading does not read the phrase “course of conduct” out of the statute, as the 

dissent asserts. Depending on the nature and circumstances of the offense, a single act of 
9

Our conclusion is further reinforced when the language of MCL 780.766(2) is read 

in pari materia with other provisions in the Crime Victim’s Rights Act, MCL 780.751 et 

seq.

11 MCL 780.767, for example, sets forth the factors for consideration and the burden 

of proof in setting the amount of restitution. MCL 780.767(1) provides that “[i]n

determining the amount of restitution to order under [MCL 780.766], the court shall 

consider the amount of the loss sustained by any victim as a result of the offense.” 

(Emphasis added). Similarly, MCL 780.767(4) provides that “[t]he burden of 

demonstrating the amount of the loss sustained by a victim as a result of the offense shall 

be on the prosecuting attorney.” (Emphasis added). “[T]he offense” in MCL 780.767 

can only refer to the offense of which the defendant was convicted, because it is that 

“offense” that makes him subject to being ordered to pay restitution in the first place. 

Thus, these provisions further reinforce our conclusion that MCL 780.766(2) requires a 

direct, causal relationship between the conduct underlying the convicted offense and the 

amount of restitution to be awarded. See, e.g., Paroline v United States, 572 US ___, 

 

“conduct” may be sufficient to give rise to the offense, or a series of acts—i.e., a “course 

of conduct”—may be necessary. For example, a defendant may be assessed restitution 

for a conviction for assault with a deadly weapon for firing a gun at a victim and be 

required to pay the victim’s resulting medical bills, or a defendant may be assessed 

restitution for a conviction for armed robbery for firing a gun at a victim and taking the 

victim’s money and be required to pay the victim’s medical bills and repay the money 

taken from the victim. The latter example involves a “course of conduct” that gives rise 

to a conviction, and both the defendant’s assault and his theft could result in a restitution 

award under our decision today.

11 “[S]tatutes in pari materia are to be taken together in ascertaining the intention of the 

legislature, and . . . courts will regard all statutes upon the same general subject matter as 

part of 1 system.” Dearborn Twp Clerk v Jones, 335 Mich 658, 662; 57 NW2d 40 

(1953).
10

___; 134 S Ct 1710, 1720; 188 L Ed 2d 714 (2014) (“The words ‘as a result of’ plainly 

suggest causation.”).

Because MCL 780.766(2) does not authorize the assessment of restitution based 

on uncharged conduct, the trial court erred by ordering the defendant to pay $94,431 in 

restitution to the victims of air conditioner thefts attributed to the defendant by his 

accomplice but not charged by the prosecution. We therefore vacate that portion of the 

defendant’s judgment of sentence. As this holding makes it unnecessary to address the 

question whether restitution based on uncharged conduct is unconstitutional under the 

Sixth Amendment and Apprendi and its progeny, we decline to reach that question. 

B. STARE DECISIS

Contrary to the dissent’s assertion, we do not “lightly cast aside” our decision in 

Gahan. Rather, in determining whether to overrule our decision in Gahan, we are 

mindful of the factors for overruling our prior decisions set forth in Robinson v Detroit, 

462 Mich 439, 463-468; 613 NW2d 307 (2000). Stare decisis is “generally ‘the preferred 

course’ ” because it “ ‘contributes to the actual and perceived integrity of the judicial 

process.’ ” Id. at 463, quoting Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 

141 L Ed 2d 242 (1998). We consider whether Gahan was wrongly decided, whether it 

defies practical workability, whether reliance interests would work an undue hardship, 

and whether changes in the law or the facts no longer justify the questioned decision. Id. 

at 464.

We have little difficulty concluding that Gahan was wrongly decided. For reasons 

previously explained, we believe that the Gahan Court’s analysis of MCL 780.766(2) is 
11

incomplete because it failed to consider the clause “that gives rise to the conviction.” 

That significant qualification to the phrase “course of conduct” renders untenable the 

Gahan Court’s conclusion that the term “course of conduct” should be given a reading so

broad that it includes uncharged conduct. This factor weighs in favor of overruling 

Gahan.

We see no basis for concluding that Gahan defies practical workability. Trial 

courts hold hearings and make restitution determinations every day under the Gahan

Court’s reading of the statute, and we see nothing to indicate that Gahan is difficult to 

apply. This factor weighs in favor of retaining Gahan.

Regarding reliance, we inquire “whether the previous decision has become so 

embedded, so accepted, so fundamental, to everyone’s expectations that to change it 

would produce not just readjustments, but practical real-world dislocations.” Robinson, 

462 Mich at 466. We conclude that the reliance interests of crime victims are not 

implicated here because “to have reliance the knowledge must be of the sort that causes a 

person or entity to attempt to conform his conduct to a certain norm before the triggering 

event.” Id. at 467. Under MCL 780.766(2), the “triggering event” is the defendant’s 

commission of a crime against a victim for which the defendant is not charged; before 

that act occurs, a person would have no reason to believe he or she would be victimized

and adjust his or her conduct accordingly, so by definition there can be no reliance on the 

Gahan rule that he or she may recover restitution for his or her losses as a result of that 

crime. 

Further, when dealing with an issue of statutory interpretation, we have said that 

“it is to the words of the statute itself that a citizen first looks for guidance in directing his 
12

actions.” Id. Accordingly, when a court misconstrues or misreads a statute, “it is that 

court itself that has disrupted the reliance interest. When that happens, a subsequent 

court, rather than holding to the distorted reading because of the doctrine of stare decisis, 

should overrule the earlier court’s misconstruction.” Id. Because Gahan interpreted only 

one phrase in MCL 780.766(2), and in doing so did not address another phrase in the 

statute, we conclude that reliance on its holding is not justified. Because overruling 

Gahan will not result in practical, real-world dislocations, this factor weighs in favor of 

its overruling.

Finally, we are aware of no intervening changes in the law or the facts involving 

restitution awards that would either support or undermine our statutory interpretation

analysis in Gahan.

12 Thus, this factor neither supports nor weighs against overruling 

Gahan.

In sum, we conclude that Gahan was wrongly decided and that no reliance 

interests are upset by its overruling. Stare decisis is a “ ‘principle of policy’ rather than 

‘an inexorable command,’ ” and we are not constrained to follow precedent that is badly 

reasoned. Id. at 464, quoting Hohn, 524 US at 251. Accordingly, we conclude that 

Gahan should be overruled to the extent that it held that MCL 780.766(2) “authorizes the 

sentencing court to order criminal defendants to pay restitution to all victims, even if 

those specific losses were not the factual predicate for the conviction.” Gahan, 456 Mich 

at 270.

 12 Because we do not reach the defendant’s constitutional challenge to the restitution 

award based on Apprendi and its progeny, we do not consider the impact of those cases in 

our analysis of this factor.
13

IV. CONCLUSION

We hold that MCL 780.766(2) does not authorize trial courts to impose restitution 

based solely on uncharged conduct. We overrule our decision in Gahan to the extent that 

it held to the contrary. Therefore, we vacate the portion of the judgment of sentence

imposing $158,180.44 in restitution and remand to the trial court for entry of an order 

assessing $63,749.44 in restitution against the defendant. 

Bridget M. McCormack

Robert P. Young, Jr.

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

David F. Viviano
S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 147391

MATTHEW CHARLES McKINLEY, a/k/a 

JEFFREY ALAN NEWBOLD,

Defendant-Appellant.

CAVANAGH, J. (dissenting).

This Court granted leave to appeal, in part, to address whether “Michigan’s 

statutory restitution scheme is unconstitutional insofar as it permits the trial court to order 

restitution based on uncharged conduct that was not submitted to a jury or proven beyond 

a reasonable doubt.” People v McKinley, 495 Mich 897 (2013), citing People v Gahan, 

456 Mich 264; 571 NW2d 503 (1997). As our grant order illustrates, questions regarding 

the constitutionality of Michigan’s restitution scheme have arisen since the Legislature’s 

enactment of MCL 780.766(2) and after Gahan was decided. The majority, however,

ultimately declines to address the limited issue on which this Court granted leave to 

appeal, instead finding dispositive an issue neither raised nor briefed by the parties—

whether Gahan correctly interpreted MCL 780.766(2). I disagree with the majority’s 

characterization of Gahan as “badly reasoned,” but I also object to the majority’s 

decision to lightly cast aside a unanimous opinion of this Court in disregard of a 

fundamental premise of our adversarial system of adjudication in which each party is 
2

given a full and fair opportunity to be heard. See NASA v Nelson, 562 US ___; 131 S Ct 

746, 756 n 10; 178 L Ed 2d 667 (2011). Because I believe that Gahan was correctly 

decided, I must respectfully dissent. 

I. BACKGROUND: PEOPLE V GAHAN

The majority opinion gives little attention and weight to Gahan’s actual analysis. 

Accordingly, a brief overview of Gahan is necessary.

In Gahan, a defendant sold motor vehicles on consignment at his used car lot, 

repeatedly telling his customers that their cars sold for less than the true amount of the 

sale and keeping the difference for himself. The defendant perpetrated this scheme on 

numerous individuals, ultimately leading to the defendant’s conviction of one count of 

embezzlement regarding a victim who was swindled out of $1,100. Gahan, 456 Mich at 

265-267.1

 After the defendant was convicted, a probation officer prepared a presentence 

investigation report quoting an investigator as saying that the prosecution “ ‘originally 

had 48 counts against the defendant involving transactions . . . that went on for over a 

year.’ ” Id. at 268. In order to compensate all known victims, the probation officer 

recommended that the defendant be ordered to pay restitution in an amount of more than 

$28,000, which the trial court subsequently adjusted to $25,000 in its order of restitution. 

Id. at 268-269. 

The Court of Appeals vacated the order of restitution in a split decision, with the 

majority concluding that, under the plurality opinion of People v Becker, 349 Mich 476, 

 1 The defendant also pleaded guilty to one count of embezzlement involving another 

victim in a separate proceeding. Gahan, 456 Mich at 267 n 3. 
3

486; 84 NW2d 833 (1957), “a defendant can be ordered to pay restitution only to the 

victim(s) of the crime(s) for which he is convicted.” People v Gahan, unpublished 

opinion per curiam of the Court of Appeals, issued January 16, 1996 (Docket No. 

172159), p 5. The Court of Appeals majority reasoned that, although there were 

similarities between the defendant’s crime and the other acts, the defendant was neither 

tried for nor convicted of the other acts and, thus, the other acts were related to 

transactions that were independent from the single transaction that provided the factual 

basis for the conviction. Stated another way, the majority of the panel held that the other 

acts were not part of the “course of conduct that gave rise to this conviction.” Id. The 

Court of Appeals dissent disagreed, explaining that MCL 780.766(2), part of the Crime 

Victim’s Rights Act, requires that a court order “ ‘that the defendant . . . make restitution 

to any victim of the defendant’s course of conduct that gives rise to a conviction,’ ” with 

a “victim” defined by MCL 780.766(1) as “ ‘an individual who suffers direct . . . 

financial . . . harm as a result of the commission of a crime.’ ” Gahan, unpub op at 1 

(SMOLENSKI, J., concurring in part and dissenting in part). On this basis, the Court of 

Appeals dissent explained that the victims of uncharged conduct were “also victims of 

the commission of a crime, i.e., defendant’s other acts of commercial fraud,” and “[t]hese 

persons were also victims of defendant’s course of conduct, i.e., his commercial fraud,

that gave rise to a conviction, i.e., his conviction in this case.” Id.

In Gahan, we granted leave to appeal to consider whether MCL 780.766(2)

permits a sentencing court to “order a defendant to pay restitution to compensate all the 

victims who were defrauded by [the defendant’s] criminal course of conduct, even 

though the specific criminal acts committed against some . . . victims were not the 
4

[factual predicate for] the defendant’s conviction.” Gahan, 456 Mich at 265. See, also,

id. at 269-270. After full briefing and oral argument, this Court unanimously concluded 

that it does. Id. at 270. 

In reaching our conclusion, we stated that the statute applicable at the time was 

clear that “restitution may be ordered with respect to ‘any’ victim” as defined by the act. 

Id. at 271 (emphasis added).

2 Considering the phrase “course of conduct,” this Court 

explained that the phrase had acquired a unique meaning at common law before the 

enactment of the Crime Victim’s Rights Act, MCL 780.751 et seq. Specifically, we

explained that the phrase “course of conduct” originated in cases involving the proper 

scope of restitution ordered under MCL 771.3 as a condition of probation. Under that 

statute, which provided that a court may require a probationer to “[p]ay restitution to the 

victim,” defendants generally had argued that restitution was limited to those “losses 

attributable to the specific charges that resulted in the defendant’s conviction.” Gahan, 

456 Mich at 271. We noted, however, that panels of the Court of Appeals had repeatedly 

rejected this argument. Specifically, the Court of Appeals had held that restitution orders 

 2 After the defendant’s conviction in Gahan, the Legislature amended the Crime Victim’s 

Rights Act to “require, rather than permit, that restitution be ordered.” Gahan, 456 Mich 

at 270 n 6. Specifically, MCL 780.766 now provides, in relevant part:

(1) As used in this section only, “victim” means an individual who 

suffers direct or threatened physical, financial, or emotional harm as a result 

of the commission of a crime. . . .

(2) . . . [W]hen 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 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 . . . .
5

requiring a defendant to pay a restitution amount exceeding the losses attributable to the

specific charges resulting in the conviction were appropriate because “principles of 

justice required that the defendant ‘pay back the entire amount obtained by his course of 

criminal conduct.’ ” Id. at 272, quoting People v Seda-Ruiz, 87 Mich App 100, 103; 273 

NW2d 602 (1978). Because the phrase “course of conduct” had developed a unique 

meaning at common law, this Court held that the common-law meaning of the phrase 

should be carried over into the Crime Victim’s Rights Act, absent an indication of a 

contrary legislative intent. Gahan, 456 Mich at 272. Finding no such indication, this 

Court held that the Legislature did not intend to deviate from prior caselaw holding that a 

defendant should be required to compensate for all losses attributable to his illegal 

scheme “culminat[ing] in his conviction,” even if some of the losses did not form the 

factual basis of the charge resulting in conviction. Id.

3 Gahan explained that “totally 

dissimilar crimes committed at different times may not satisfy the statutory ‘course of 

conduct’ requirement,” but such facts were not presented in Gahan. Thus, the Court 

declined to define the exact parameters of that phrase, noting that the defendant’s 

repeated scheme of defrauding his customers in the same or similar manner clearly fell 

within the confines of that phrase as developed in previous caselaw. Id. at 273 n 11. 

 3 This Court also compared the broader statutory language from MCL 780.766(2) with

federal caselaw interpreting a federal restitution statute. Gahan, 456 Mich at 271 n 8. 

Specifically, unlike its federal counterpart, MCL 780.766(2) does not limit restitution to 

the offense of conviction by providing that, “when sentencing a defendant convicted of an 

offense,” a court “may order . . . that the defendant make restitution to any victim of such 

offense[.]” 18 USC 3663(a)(1)(A) (emphasis added). See, also, Gahan, 456 Mich at 271 

n 8. 
6

Accordingly, Gahan reversed the Court of Appeals and reinstated the order of restitution. 

Id. at 277-278.

II. ANALYSIS

At issue is whether the majority is correct that Gahan is an “untenable,” “badly 

reasoned,” and “plainly incomplete” opinion that “ignored” the language of the statute. 

Despite the majority’s bold characterizations of Gahan’s analysis, I continue to believe 

that Gahan correctly interpreted the plain language of the statute at issue. 

As the above background illustrates, this Court was not presented with a novel 

issue in Gahan. Dating back to the late 1960s, panels of the Court of Appeals have been 

asked to address the proper scope of restitution orders in light of arguments from 

defendants, like the defendant in Gahan, that this Court’s plurality opinion in Becker and 

the applicable statutory language limited restitution orders to only those losses 

attributable to the specific charges or transaction that resulted in a conviction. See, e.g.,

People v Nawrocki, 8 Mich App 225, 227; 154 NW2d 45 (1967) (upholding an order of 

probation that required a defendant to pay restitution for forged checks in addition to the 

forged check for which he was convicted of uttering and publishing). 

Notably, in People v Gallagher, 55 Mich App 613; 223 NW2d 92 (1974), the 

Court of Appeals addressed whether MCL 771.3 authorized restitution “ ‘only as to loss 

caused by the very offense for which [the] defendant was tried and convicted,’ ” as 

argued by the defendant. Gallagher, 55 Mich App at 617-618, quoting Becker, 349 Mich 

at 486. At the time, MCL 771.3 provided that, as a condition of probation, a court could

order restitution “ ‘in whole or in part to the person or persons injured or defrauded, as 
7

the circumstances of the case may require or warrant, or as in its judgment may be meet 

and proper.’ ” Gallagher, 55 Mich App at 618, quoting MCL 771.3. Agreeing with 

Nawrocki that the statutory language authorized restitution for losses exceeding those that 

formed the factual basis for the conviction, Gallagher rejected the defendant’s reliance 

on Becker, which, after a review of federal authority, concluded that restitution ordered 

under MCL 771.3 could only be imposed for offenses for which the defendant was 

convicted. Becker, 349 Mich at 485-486. See, also, Gallagher, 55 Mich App at 618. 

Gallagher explained that not only was Becker nonbinding but, in enacting MCL 771.3, 

the Michigan Legislature did not choose to follow the narrower federal approach, 

Gallagher, 55 Mich App at 618, which limited restitution to “ ‘aggrieved parties for 

actual damages or loss caused by the offense [for] which conviction was had,’ ” United 

States v Hoffman, 415 F2d 14, 21 (CA 7, 1969), quoting 18 USC 3651. Rather, 

Gallagher held that Michigan’s broadly worded restitution statute was similar to those of 

other states insofar as the Michigan statute “permit[ted] restitution of the whole loss 

caused by a course of criminal conduct upon conviction of a crime arising out of that 

conduct.” Gallagher, 55 Mich App at 618, citing People v Dawes, 132 Ill App 2d 435; 

270 NE2d 214 (1971) (upholding a restitution order as to the single complainant, but also

as to other victims of the defendant’s conduct that were subsequently discovered). 

Later panels of the Court of Appeals applied Gallagher’s interpretation of 

MCL 771.3, holding that the statute permitted restitution to all victims of a defendant’s 

course of conduct, even if the victim’s specific losses did not form the factual basis of the

defendant’s conviction. See Seda-Ruiz, 87 Mich App at 102-103 (rejecting a challenge to 

a restitution order on the ground that it was unlawful for the defendant to be required to 
8

pay back amounts for other losses not mentioned in the specific charges for which the 

defendant was convicted;)

4 People v Pettit, 88 Mich App 203, 205-206; 276 NW2d 878 

(1979) (quoting and agreeing with Gallagher that restitution may be imposed under 

MCL 771.3 for the “ ‘whole loss caused by a course of criminal conduct upon conviction 

of a crime arising out of that conduct’ ”); People v Alvarado, 142 Mich App 151, 162; 

369 NW2d 462 (1984), disapproved on other grounds People v Music, 428 Mich 356; 

408 NW2d 795 (1987) (same). Although some panels of the Court of Appeals applied

the Becker plurality to limit restitution to only those losses caused by the very offense for

which the defendant was tried and convicted, see, e.g., People v Blaney, 139 Mich App 

694; 363 NW2d 13 (1984), at the time the Crime Victim’s Rights Act was enacted, the 

weight of authority allowed restitution ordered as a condition of probation for losses 

 4 In Seda-Ruiz, the Court of Appeals remanded to the trial court for an evidentiary 

hearing to address the defendant’s argument that he was not given the opportunity to 

examine all of the checks that were the subject of the restitution order and that some of 

the checks for which he was required to pay restitution were “not his checks.” Seda-Ruiz,

87 Mich App at 104. The majority states that the concurring opinion in Seda-Ruiz, which 

agreed with the decision to remand but would have additionally limited restitution to only 

those checks for which the defendant had pleaded guilty or which were part of the plea 

agreement, id. at 105, suggests that Gallagher’s interpretation of the proper scope of 

restitution was in dispute. Although some jurists, such as the concurring author in SedaRuiz, may have disagreed with Gallagher’s nonbinding interpretation of the proper scope 

of restitution under MCL 771.3, see MCR 7.215(J)(1), it does not follow that the meaning 

of the phrase “course of conduct” as used by Gallagher to describe the scope of 

restitution under MCL 771.3 was unsettled at the time of the Crime Victim’s Rights Act’s 

enactment, especially in light of Gallagher’s clear rejection of the proposition that 

MCL 771.3 limited restitution to only those losses caused by the offense for which the 

defendant was convicted. 
9

exceeding the losses attributable to the specific charges that resulted in a defendant’s 

conviction.5

With this expanded historical backdrop in mind, I continue to believe that Gahan 

correctly determined that the phrase “course of conduct” in the Crime Victim’s Rights 

Act should be given a broad construction consistent with its unique meaning at common 

law. As this Court has repeatedly stated, “[i]t is a well-established principle of statutory 

construction that the Legislature is presumed to act with knowledge of statutory 

interpretations by the Court of Appeals and this Court.” Gordon Sel-Way, Inc v Spence 

Bros, Inc, 438 Mich 488, 505-506; 475 NW2d 704 (1991). Thus, the Legislature is 

“deemed to act with an understanding of common law in existence before . . .

legislation . . . [is] enacted.” Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d 

233 (1997) (emphasis added). “This Court will [also] presume that the Legislature . . . is 

familiar with the principles of statutory construction,” People v Hall, 391 Mich 175, 190; 

215 NW2d 166 (1974), particularly the notion that words and phrases that have acquired 

a unique meaning in the common law are interpreted as having the same meaning when 

they appear in later enacted statutes dealing with the same subject matter “unless a 

 5 In fact, after the Crime Victim’s Rights Act was enacted, panels of the Court of Appeals 

continued to apply Gallagher’s interpretation to MCL 769.1a, Michigan’s similarly 

worded general restitution statute, as well as MCL 780.766(2), noting that the language 

adopted by the Legislature was essentially identical to that employed by prior Court of 

Appeals opinions interpreting MCL 771.3. See, e.g., People v Littlejohn, 157 Mich App 

729; 403 NW2d 215 (1987); People v Bixman, 173 Mich App 243; 433 NW2d 417 

(1988); People v Greenberg, 176 Mich App 296; 439 NW2d 336 (1989); People v 

Persails, 192 Mich App 380; 481 NW2d 747 (1991); People v Letts, 207 Mich App 479; 

525 NW2d 171 (1994).
10

contrary intent is plainly shown,” People v Covelesky, 217 Mich 90, 100; 185 NW 770 

(1921). See, also, Pulver v Dundee Cement Co, 445 Mich 68, 75; 515 NW2d 728 (1994); 

MCL 8.3a. In other words, in keeping with the canons of statutory interpretation, the 

Legislature is presumed to have known the meaning of “course of conduct” as it relates to 

restitution when it enacted the Crime Victim’s Rights Act. 

It bears emphasizing that, despite conflicting opinions of the Court of Appeals 

regarding the applicability of the Becker plurality and the proper scope of restitution 

ordered as a condition of probation, the Legislature nevertheless incorporated a restitution 

provision into the Crime Victim’s Rights Act substantially mirroring the language of 

Gallagher and its progeny.6

 In light of the well-established use of the phrase “course of 

 6 Compare Gahan, 456 Mich at 270 (emphasis added) (noting that MCL 780.766(2) 

provided that a trial court may order that the defendant make restitution to “any victim of 

the defendant’s course of conduct which gives rise to the conviction . . . .”), with 

Gallagher, 55 Mich App at 618 (emphasis added) (interpreting MCL 771.3 as permitting 

restitution for “the whole loss caused by a course of criminal conduct upon conviction of 

a crime arising out of that conduct”). Notably, MCL 771.3 was subsequently amended to 

include a phrase nearly identical to the phrase at issue in this case, illustrating the 

Legislature’s intent to codify Gallagher’s, rather than Becker’s, interpretation of the 

proper scope of a restitution order under MCL 771.3. See 1993 PA 343; 

MCL 771.3(1)(e).

That MCL 771.3 was subject to varying interpretations does not undermine 

Gahan’s interpretation of MCL 780.766(2), as the majority states. As previously noted, 

the Legislature is presumed to act with knowledge of judicial interpretations by this Court 

and the Court of Appeals, see Ford Motor Co v City of Woodhaven, 475 Mich 425, 439-

440; 716 NW2d 247 (2006), yet, in defining the scope of restitution under the Crime 

Victim’s Rights Act, the Legislature did not simply incorporate the language of 

MCL 771.3 into the act. Instead, it selected language mirroring Gallagher’s broad 

interpretation of MCL 771.3, rather than incorporating language similar to decisions that 

limited restitution under MCL 771.3 to only those losses related to the transaction that 

formed the factual basis for the conviction. Simply stated, the fact that Gallagher’s 

interpretation of MCL 771.3 was not universally followed is irrelevant in light of the 
11

conduct” to broadly define the scope of restitution orders imposed as a condition of 

probation, Gahan was correct that “there was no indication from the Legislature that the 

common-law meaning was not being incorporated” into the subsequently enacted Crime 

Victim’s Rights Act. Gahan, 456 Mich at 272. Indeed, given the Legislature’s 

knowledge of existing precedent at the time of the Crime Victim’s Rights Act’s 

enactment in 1985, see Nation, supra, I cannot conclude that the Legislature’s selection

of the phrase “course of conduct” within MCL 780.766(2) “plainly shows” a legislative 

intent to incorporate something other than the phrase’s common-law meaning, see 

Covelesky, supra. Had the Legislature wished to give MCL 780.766(2) the narrow 

meaning the majority opinion gives it today, the Legislature could have instead defined 

the scope of a restitution order under MCL 780.766(2) in a manner that was consistent 

with the federal statutes discussed in Gallagher, 55 Mich App at 619, and Becker, 349 

Mich at 485-486. Indeed, the Legislature is deemed to be aware of this Court’s plurality 

decision in Becker, yet the Legislature did not limit restitution consistent with that 

opinion to only those “loss[es] caused by the very offense for which [the] defendant was 

tried and convicted”, Becker, 349 Mich at 486—a proposition continuously advocated for 

by defendants decades before the Crime Victim’s Rights Act’s enactment. Instead, the 

Legislature chose the broader phrase—“course of conduct that gives rise to a 

conviction”—which was consistent with Court of Appeals caselaw rejecting Becker. 

 

Legislature’s awareness of conflicting interpretations of MCL 771.3 and its subsequent 

choice to incorporate language mirroring Gallagher’s “course of conduct” language into 

the Crime Victim’s Rights Act.
12

I also disagree with the majority that, in determining the Legislature’s intent, 

seven Justices of this Court “ignored” and “devoted no attention to” one phrase within 

MCL 780.766(2), i.e., that the defendant make restitution to any victim of the defendant’s

course of conduct “that gives rise to the conviction.” The majority asserts that, because 

the phrase “gives rise to” means “to produce or cause,” the statutory language requires a 

causal link between conduct for which the defendant is criminally charged and the 

defendant’s conviction. Stated another way, the majority reasons that “[o]nly crimes for 

which a defendant is charged ‘cause’ . . . the conviction” and, thus, “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.” Although I agree with the majority that the 

statute requires some type of a causal link between a defendant’s “course of conduct” and 

his conviction, I disagree with the majority that the requisite connection necessarily 

excludes uncharged conduct from the scope of a defendant’s “course of conduct.” As 

Gahan explained, the historical use of the phrase “course of conduct” included uncharged 

conduct that was related to a defendant’s illegal scheme from which the defendant’s 

conviction arose. Thus, the statutorily required causal connection is that a defendant’s 

conviction arises from an illegal scheme. See Gahan, 456 Mich at 272-273. If that 

connection exists, a court may order restitution for the commission of related, but 

uncharged crimes, within that same illegal scheme. 

Similarly, Gahan does not permit a restitution award for any victim of a 

defendant’s course of conduct without qualification, as the majority claims. Instead, by 

requiring that a defendant’s conviction must have arisen from a specific “course of 

conduct,” the Legislature limited the “course of conduct” from which restitution may be 
13

ordered. Thus, a defendant cannot be ordered to pay restitution for “totally dissimilar 

crimes committed at different times,” or those involving an unrelated illegal scheme. 

Gahan, 456 Mich at 273 n 11. Rather, the defendant is only required to compensate for 

“all the losses attributable to the illegal scheme that [actually] culminated in [the]

conviction” that triggered restitution. Id. at 272. As Gahan explained, in order for 

uncharged conduct to be included within the restitution order, the uncharged conduct 

must have occurred as part of the same or similar illegal scheme from which the 

defendant’s conviction arose. Gahan, 456 Mich at 272-273. Accordingly, Gahan 

properly concluded that the statutory language requires a defendant to provide restitution 

not only to the victims that are the subject of the very act that results in the defendant’s 

conviction, but also to those harmed by the defendant’s related course of criminal 

conduct from which the defendant’s conviction arose. In doing so, Gahan properly gave 

effect to each word within the statute, while giving the phrase “course of conduct” its 

unique common-law meaning. In contrast, by holding that only conduct for which a 

defendant is “charged and convicted is . . . part of the ‘course of conduct that gives rise to 

the conviction’ ” (emphasis added), the majority reads the phrase “course of conduct” out 

of the statute, effectively rewriting the statute to limit restitution to only those losses 

suffered by “victims of the defendant’s conduct that results in a conviction.”7

 7

 I also disagree with the majority’s suggestion that Gahan’s interpretation of 

MCL 780.766(2) conflicts with MCL 780.767. MCL 780.767(1) provides that, “[i]n 

determining the amount of restitution to order under [MCL 780.766], the court shall 

consider the amount of the loss sustained by any victim as a result of the offense.” The 

majority concludes that, by referring to “the offense,” MCL 780.767 can “only refer to 

the offense of which the defendant was convicted, because it is that ‘offense’ that makes 

him subject to being ordered to pay restitution in the first place.” However, 
14

Notably, our grant order in this case assumed that Gahan’s statutory interpretation 

was correct. Yet, despite the interpretation unanimously afforded to the statute’s plain 

language by this Court in Gahan, the majority brushes Gahan aside on the basis of its

conclusion that Gahan is so poorly reasoned that it must be overruled without full 

briefing and oral argument on the issue.8 In doing so, the majority ignores that the 

 

MCL 780.767 can be read harmoniously with Gahan’s interpretation of MCL 780.766(2). 

Notably, it is MCL 780.766(2) that defines the proper scope of the restitution order, 

explaining that the order shall include losses for any victim of a defendant’s “course of 

conduct that gives rise to the conviction.” Accepting that the phrase “course of conduct” 

within MCL 780.766(2) includes uncharged conduct that does not form the factual basis 

for a defendant’s conviction, MCL 780.767 merely directs the sentencing court to 

consider, in determining the amount of restitution to order under MCL 780.766(2), the 

loss sustained by any victim as a result of an uncharged offense that is a part of the 

defendant’s illegal scheme from which the defendant’s conviction arose. To that end, 

although the issue was not raised by the parties and therefore I do not opine on it, 

nowhere in the 21 pages of transcript of the restitution hearing did defense counsel 

contradict the prosecution’s evidence regarding the defendant’s commission of the 

uncharged crimes or the amount of restitution assessed for each.

8 The majority guides us astray in suggesting that the parties addressed the validity of

Gahan’s statutory analysis in their briefs to this Court. In light of this Court’s grant 

order, which limited the issues to be briefed, it is no surprise that the parties did not 

actually argue whether this Court should overrule Gahan on nonconstitutional statutory 

interpretation grounds in their briefs, but instead focused solely on the issues raised in 

this Court’s grant order—whether restitution is a criminal penalty and whether, in light of 

post-Gahan precedent, Michigan’s statutory restitution scheme is unconstitutional insofar 

as it permits a trial court to order restitution based on uncharged conduct. Further, 

although one litigant made a single, conclusory comment at oral argument regarding 

Gahan’s interpretation of the statutory language, in my view, that does not substitute for 

full briefing on the actual substance of Gahan’s statutory analysis from both of the parties 

in this case.

Finally, the majority is correct that I do not reach the constitutional issue on which 

this Court granted leave to appeal, but it is not because, as the majority suggests, a

“constitutional hurdle prove[d] unresolvable to [this] dissent.” Instead, it is precisely 

because Gahan was correctly decided that I believe that this Court should address the 

issues upon which it granted leave to appeal, rather than overruling a longstanding and 
15

Legislature has subsequently amended MCL 780.766, but it has not otherwise sought to 

correct what the majority claims is Gahan’s “plainly incomplete” interpretation in the 17 

years since Gahan was decided. 

Further, in classifying Gahan as an “untenable” opinion that “ignored” the 

statutory language, the majority fails to appreciate that Gahan was decided after a careful 

review of a divided Court of Appeals opinion, after full briefing and oral argument, and 

after post-argument discussions. Thus, in overruling Gahan by finding dispositive an 

issue neither raised nor briefed by the parties in this case, the majority not only fails to 

appreciate the thoughtful consideration given to the statutory language by the Gahan 

Court, but it also fails to consider whether the advocates in this case could have added 

anything insightful to the newfound debate over the correctness of unanimous precedent.9

 

Quite simply, I disagree with the majority that Gahan was wrongly decided. 

III. CONCLUSION

Today, the majority holds that seven Justices of this Court ignored a portion of the 

statute at issue. I disagree with the majority’s characterization of Gahan’s analysis. But

I also disagree with the majority’s decision to disregard one of the foundational principles 

 

correct determination of the Legislature’s intent in enacting the Crime Victim’s Rights 

Act. Nevertheless, because my position has not garnered majority support, I decline to 

opine on those issues. 

9 It requires no citation to authority to note that the vast majority of convictions in this 

state result from guilty pleas, many of which are the result of plea negotiations when a 

prosecutor offers to dismiss some charges if a defendant agrees to plead guilty to others. 

In light of crime victims’ constitutional right to restitution, see Const 1963, art 1, § 24, 

only time will tell the impact of the majority opinion on prosecutorial charging decisions, 

plea negotiations, and trials. 
16

of our adversarial system of justice by failing to give each party an opportunity to be 

heard in order to assist this Court in understanding the issue before it and prevent a 

preliminary understanding of the issue from improperly influencing the Court’s final 

decision of an issue that was previously and unanimously decided. Accordingly, I must 

respectfully dissent. 

Michael F. Cavanagh