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 co mmercial 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 2 5 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 ordere d 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 , F ORT H OOD , P.J., and F ITZGERALD and O’C ONNELL , JJ. , vacat ed the defendant’s conviction for larceny over $20,000, but otherwise affirmed his convictions and sentences in an unpublished opinion per curiam issued May 16, 2013 (Docket No. 307360).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 restitut ion scheme was unc onstitutional because it permitted trial courts to impose restitution on the basis of facts not prove d to the trier of f act 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 uncons titutional insofar as it permitted the trial court to order restitution based on conduct for which a de fendant 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 M C C ORMACK , joined by Chief Justice Y OUNG and Justices M ARKMAN , K ELLY , Z AHRA , and V IVIANO , 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 w as not necessary to reach either of defendant’s constitutional challenges to the restitution award. Under the rul e of constitutional avoidance, it was necessary to revisit the statutory analysis of MCL 780.766(2) set forth in Gahan because the statutory a nalysis 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. Daviscase 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. D efendant’s challenge to remainder of the rest itution 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. T he Gahan Court’s reading of MCL 780.766(2) was not sustainable and was overruled. The plain language of the statute authorizes the assessmen t of full restitution only for
a victim of the defendant’s course of conduct that gave rise to the conviction. Given that o nly crimes fo r which a defendant was charged could cause or gi ve rise to the conviction , the statute ties th e 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 t o a conviction could not be relied on as a basis for assessing restitution against a defendant. Similarly, the statute requires that “an y 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 conduc t” 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 n ot charged by the prosecution.
3

. Gahan was wrongly decided because it interpreted on ly one phrase in MCL 780.766(2) and failed to addres s another

. Under t he 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 M CL 780.766(2) authorized the sentencing cou rt 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 d efendant.
Justice C AVANAGH , dissenting, disagree d with the majority’s characterization of Gahan and would not have overruled it, particularly given that Gahan ’s interpretation of MCL 780.766(2) w as not fully briefed or argued. He explained that w hen 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 presu med 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 t hat resulted in a conviction.
© 201 4 State of MichiganFILED 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

- Appell ee ,

v No. 147391
MATTHEW CHARLES McKINLEY , a/k/a JEFFREY ALAN NEWBOLD , Defendant

- Appell ant

.

BEFORE THE ENTIRE BENCH
M C C ORMACK , J

. In this case, we decide whether a trial court’s restitution award that is based solely on uncharged conduct 1 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

ext ent 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 prove d 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. Viviano2 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 order ing 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 HISTO RY 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 ea ch 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 i mposition 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 defend ant 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 p ermits 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 , 5 30 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000); contra People v Gahan , 456 Mich 264 (1997).
II. STANDARD OF REV IEW The proper application of MCL 780.766(2) and other statute s authorizing the

assessme nt of restitution at sentencing i s a mat ter 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 ; 8 46 NW2d 5 31 (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 (the4 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 )

. O nly 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 2 88,
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 stat e 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 re cord, 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”); Smi th 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 dis sent ’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 otherwise5 We believe that adherence to that rule is particularly appropriate in this case because the statutory analysis in Gahan is so plain ly 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 wheth er 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

— i t 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 dissen t, 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 defe ndant 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 E d 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 restitution6 As to the defendant’s challenge to the restitution award bas ed on convicted conduct, we conclude that the issue is not properly before us because the defendant has
waived it

. 7 T he defendant did not raise a ny question regarding the portion o f the restitution award based on convicted conduct in his initial application for leave to appeal in this Court, but instead posit ed 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 , i d . at 215.
A. STATUTORY INTERPRETA TION 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, tha t 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 cond uct not charged in the indictment or specified in a guilty plea, or for losses caused by conduct that falls outside the temporal s cope 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 q uotation marks omitted

.7 In Gahan , we discussed the Legislature’s use of the term “course of conduct” and
determined that term sh ould be given a broad construction in light of its historical background and prior decisions from the Court of Appeals interpret ing a similar statute. 8
Gahan , 456 Mich at 271

- 272. Notably, however, the Gahan Court devoted no attention to the modifying ph rase “that gives rise to the conviction

. . . .” 9

8 Those prior decisions interpreted MCL 771.3(2), now MCL 771.3(1)(e), which contains ide ntical 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 int erpret 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
mea ning 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, e ven 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) ( M AHER , 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 t o 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 “give s rise to,” but a lay dictionary defines the term as “to produce or cause.” Random House Webster’s College D ictionary (200 0 ) , 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 offense s and requi res a causal link between them . It follows
dir ectly from this premise that any course of conduct that do es 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

con victed 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” wit hout 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 of9 Our co nclusion 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 u nder [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 , t hese 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 require d 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 ta ken 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 c ould 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 NW 2d 40 (1953)

.10 ___; 134 S Ct 1710 , 1720 ; 1 88 L Ed 2d 7 14 (2014) (“The words ‘ as a result of ’ plainly suggest causation. ”). Because MCL 780.766(2) does not authorize the assessment of restitutio n 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 prosecut i o n . We therefore vacate that portion of the defendant’s judgment of sentence

. As this holding make s it unnecessary to address the question whether restitution based on uncharged conduct is unconstitutional under the
Sixth Amendment and Apprendi and its pro geny, we decline to reach that question.
B. STARE DECISIS

C ontrary to the dissent ’s assertion , we do not “lightly cast aside” our decision in
Gahan . Rather, i n 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. ’ ” I d . at 463, quoting Hohn v United States , 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). W e consider whether Gahan was wrongly decided, whether it defies practical workability, whether reliance interests would work an undue hardship,
and whether c hanges 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) is11 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 re ading 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

. R egarding reliance, we inquire “ whether the previous decision has become so embedded, so accepted, so f undamental, 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 accordin gly , 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, w hen dealing with an issue of statutory interpretation, we have said that

“ it is to the word s of the statute itself that a citizen first looks for guidance in directing his12 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 subseque nt court, rather than holding to the distorted reading because of the doctrine of stare decisis,
sh ould 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 anothe r 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 chan ges 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 t hat 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 t hat it held to the contrary. Therefore, w e 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. VivianoS T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN , Plaintiff

- Appell ee ,

v No. 147391
MAT T HEW CHARLES McKINLEY, a/k/a JEFFREY ALAN NEWBOLD , Defendant

- Appell ant

.

C AVANAGH , 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 pr oven beyond

a reasona ble d oubt.” People v McKinley , 495 Mich 897 (2013 ), citing People v Gahan , 456 Mich 264; 571 NW 2d 503 (1997)

. A s our grant order illustrates, questions regarding the constitutionality of Michigan’s restitution scheme have arisen since the Legislature’s

enactm ent of MCL 780.766(2) and after Gahan was decided. T he 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 pr emise of our adversarial system of adjudication in which each party is2 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). B ecause I believe that Gahan was correctly
decided , I must respectfully dissent

. I. BACKGROUND: PEOPLE V G AHAN

T he 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 t han the true amount of the
sale and keeping the difference for himself

. The defendant perpetrated this scheme on numerous individuals, ulti mately leading to the defendant ’s conviction of one count of
embezzlement regarding a victim who was swindled ou t o f $1,100

. Gahan , 456 Mich at
26 5

- 267. 1 After the defendant was convicted, a probation officer prepared a present ence 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 a n amount of more than $28 ,000 , which the trial court subsequently adjusted to $25,000 in its order of restitution

. Id . at 268

- 269.
T he Court of Appeals vacated the order of restitution in a split dec ision , 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 defendan t can be ordered to pay restitution only to the victim(s) of the crime(s) for which he is convicted.” People v Gaha n , 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 he ld 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 giv es 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 ( S MOLENSKI , 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 commi ssion 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 , w e 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 crimi nal acts committed against some

. . . victims were not the4 [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 involv ing 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. Speci fically, 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 or der, 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 de veloped a unique meaning at comm on law, this Court held that the common

- law meaning of the phrase
should be carried over in to 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 result ing 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
de clined 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 “i gnored” 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 1960 s, 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 defen dant to pay restitution for forg ed checks in addition to the forged check for which he was convicted of uttering and publishing). Notably, in People v Gallagher , 55 M ich 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 , as7 the circumstances of the case ma y req uire 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 Mi ch at 485

- 486. See, also, Gallagher , 55 Mich App at 61 8

. 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 , w hich 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 victim s of the defendant’s conduct that were subsequently discovered).
Later p anels of the Court of Appeals applied Gallagher ’s interpretation of
MCL 771.3, ho lding 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 to8 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 conv iction 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

t he 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 enact ed , the weight of authority allowed restitution ordered as a condition of probation for losses

4 In Seda

- Ruiz , the Court of Appeals remand ed to the trial court for an evidentiary hearing to address the defendant’s argument that he was not given the opp ortunity 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 op inion in Seda

- Ruiz , which agreed with the decision to remand but would have additionally limited restitution to only those che cks for which the defendant had pleaded guilty or which were part of the plea agreement, id

. at 105, suggests that Gallagher ’s int erpretation of the proper scope of restitution was in dispute. Although some jurists, such as the concurring author in Seda

Ruiz , may have disagreed with Gallagher ’s non binding 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 ligh t 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” i n the Crime Victim’s Rights
Act shoul d 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 Spen ce Bros, Inc , 438 Mich 488, 505

- 506; 475 NW 2d 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)

. “T his Court will [also] presume that the Legislature

. . . is familiar with the princi ples of statutory construction,” People v Hall , 391 Mich 175, 190;
215 NW 2d 166 (1974), particularly the notion that wor ds 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, a fter the Crime Victim’s Rights Act was enacted , panels of the Court of App eals continued to apply Gallagher ’s interpretation to MCL 769.1 a , 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 Co urt of Appeals opinion s 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 , 19 2 Mich App 380; 481 NW2d 747 (1991); People v Letts , 207 Mich App 479; 525 NW2d 171 (1994).10 contrary inte nt 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 can ons of statutory interpretation, the Legislature is presumed to have know n 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 pr oper scope of res titution
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 vic tim 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, i nterpretation 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 knowledg e 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 restitu tion 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 the11 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 t he 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 Leg islature’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 restitu tion 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 ] defe ndant was
tried and convicted” , Becker , 349 Mich at 486

— a proposition continuously advocated for by defendants decades before the Crime Vi ctim’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 d isagree with the majority that, in determining the Legislature’s intent,

s even 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
Ga han explained, the historical use of the phrase “course of conduct” included uncharged
conduct that was related to a defendant’s illega l 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 , Gaha n 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 Legislatur e limited the “course of conduct” from which restitution may be13 ordered. Thus, a defendant cannot be ordered to pay restitution for “totally dissimilar
crim es 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. Accordi ngly, Gahan properly conclude d that the statutory language requires a defe ndant to provide restitution not only to the victim s that are the subject of the very act that results in the defendant’s conviction, but also to those harmed by the defendant’s rela ted 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 o nly 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 statu te 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 th e 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 susta ined by any victim as a result of the offense.” The majorit y 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 G ahan ’s statutory interpretation

was correct. Yet, despite the interpretation unanimously afforded to the statute ’s plain language by this Court in G ahan , the majority brushes G ahan aside on the basis of i ts
conclusion that G ahan 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 prop er 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 T he majority guides us astray in suggest ing that the parties ad dressed the validity of Gahan ’s statutory analysis in their brief s to this Court. In li ght 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 non constitutional 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 sta tutory restitution scheme is unconstitutional in sofar 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 st atutory 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 r each the constitutional issue on which thi s 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 and15 L egisla ture has subsequently amended MCL 780.766 , but it has not otherwise sought to

correct what the majority claims is G ahan ’s “plainly incomplete” interpretation in the 17 years since G ahan 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 th e 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 J ustice s 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 de cision to disregard on e of the foundational principles

correct determination of the Legislature’s intent in enacting the C rime V ictim’s R ights A ct

. 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 negotiatio ns when a prosecutor offers to dismiss some charges if a defendant agrees to plead guilty to ot hers. 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 pro secutorial 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 C ourt in understanding the issue before it and prevent a preliminary understanding of the issue from improperly influenc ing the Court’s final
decision of an issue that was previously and unanimously decided

. Accordingly, I must respectfully dissent.

Michael F. Cavanagh