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People v. Foster

Court of Appeals of Michigan

April 20, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
MICHAEL EUGENE FOSTER, Defendant-Appellant.

         Iosco Circuit Court LC Nos. 14-008692-FH 14-008881-FH 15-009012-FH

          Before: M. J. Kelly, P.J., and Stephens and O'Brien, JJ.

          Stephens, J.

         Defendant, Michael Eugene Foster, pleaded guilty to two counts of breaking and entering with intent to commit a felony, MCL 750.110, and one count of possession with intent to deliver a controlled substance, MCL 333.7401(2)(b)(i). Defendant appeals by delayed leave granted[1]the judgment of sentence, which ordered defendant to serve concurrent prison terms of 19 months to 10 years for the breaking and entering convictions, consecutive to a term of 78 months to 20 years for the possession with intent to deliver conviction. Defendant was also ordered to pay a $500 fine for the possession of a controlled substance offense, and, inter alia, restitution in the amount of $223.76 for two dismissed misdemeanor offenses. We affirm in part, vacate in part, and remand to the trial court for correction of the judgment of sentence.

         I. BACKGROUND

         Defendant does not contest the factual basis of this prosecution. In LC No. 14-8881-FH, defendant pleaded guilty to one count of breaking and entering, and stated that around September 21 or 22, 2014, he entered a barn located at a golf course on Cedar Lake Road in Iosco County after his "co-defendant opened the door" and "took 11 batteries", which he later sold for their scrap value. Defendant also pleaded guilty to one count of breaking and entering in LC No. 14-8692-FH, stating that, on June 5, 2014, he entered a garage "on the corner of Jordonville Road and US-23" "in Iosco County" and "me and my co-defendant carried a generator out." In LC No. 15-9012-FH, defendant pleaded guilty to one count of possessing, with the intent to deliver, the controlled substance of methamphetamine, and stated that, around December 16, 2014, he "had a substantial amount of Methamphetamine. And we got pulled over, and it was found in the vehicle, and I admitted it was mine." Defendant added that he possessed the methamphetamine for the purpose of "shooting it, smoking it, snorting it. . . . Yeah, there was an intent to sell some of it."

         Defendant and the prosecution entered a plea agreement on the record. In exchange for defendant's pleas of guilty, the prosecution and defendant agreed that the breaking and entering sentences would run concurrent to each other, and consecutive to the possession with intent to distribute offense, and that defendant would be sentenced with no habitual offender status to a "max/minimum . . . at the bottom of the sentence guideline" on all three offenses. The parties also agreed, "two misdemeanor Retail Fraud matters in District court would be dismissed with restitution to be paid in full on those -- in addition to the restitution on these files that are being pled guilty to."

         The trial court informed defendant that breaking and entering is an offense that carries with it a maximum penalty of ten years' incarceration for each conviction and that possession with intent to deliver the controlled substance of methamphetamine carries with it a maximum penalty of twenty years' incarceration and/or a $25, 000 fine. The trial court also informed defendant that the court was not bound by the plea agreement at sentencing and that, if the court imposed a sentence different from that agreed to, then defendant could withdraw his plea. The court accepted all three pleas and referred defendant to the Department of Corrections for preparation of a presentence investigation report.

         At the sentencing hearing, the court followed the recommendations of the Department of Corrections as provided in the PSIR. As for LC No. 14-8692-FH, defendant was sentenced as stated above, and ordered to pay restitution in the amount of $232.19 jointly and severally with co-defendants Allen Present and Zachary Williams payable to Helen Bero. Defendant was further ordered to pay a $68 state cost, a Crime Victims Assessment in the amount of $130, $1, 100 in court costs, and a $500 fine. In regards to LC No. 14-8881-FH, defendant was sentenced as stated above, and ordered to pay restitution in the amount of $887.52 jointly and severally with co-defendant Paul Sivrais payable to Lakewood Shores Gold Resort. As for LC No. 1540-SM, defendant was ordered to pay restitution in the amount of $223.76 jointly and severally with co-defendant Valerie Foster payable to Walmart, restitution in the amount of $196.26 again payable to Walmart, a $68 state cost, and a Crime Victims Assessment in the amount of $130. In regards to LC No. 15-9012-FH, defendant was sentenced as stated above, and ordered to pay a $68 state cost and a Crime Victims Assessment in the amount of $130.

         The trial court asked defendant and his counsel if they were "aware of any additions, deletions, or corrections that need to be made with regard to any of the factual matters contained within the [presentence] report." Both responded that there were not. Additionally, defendant and his counsel both stated that they did not have any objection to the scoring of the sentencing guidelines. The trial court then sentenced defendant as recommended by the Department of Corrections.

         II. THE VALIDITY OF THE FINE

         Defendant first challenges the $500 fine imposed by the court in LC No. 14-8692-FH, the breaking and entering charge related to the generator theft. Defendant contends that because the fine was not a part of his sentence recommendation and he was not given the opportunity to withdraw his plea after the fine was imposed, the fine should be vacated. We agree.

         A. STANDARD OF REVIEW

         Defendant did not challenge the trial court's authority to order the fine at sentencing. This Court reviews unpreserved claims of error under the plain error rule. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id.

         B. ANALYSIS

         "If the prosecuting attorney and the defendant choose to negotiate, and in fact reach a sentence agreement or sentence recommendation, the court shall require disclosure in open court of the details of the agreement at the time the plea is offered."[2] People v Killebrew, 416 Mich. 189, 206; 330 N.W.2d 834');">330 N.W.2d 834 (1982), In Killebrew, 416 Mich. at 209-210, our Supreme Court held that when a plea agreement contains a prosecutorial sentence recommendation,

the judge may accept the guilty plea . . . yet refuse to be bound by the recommended sentence. The judge retains his freedom to choose a different sentence. However, the trial judge must explain to the defendant that the recommendation was not accepted by the court, and state the sentence that the court finds to be the appropriate disposition. The court must then give the defendant the opportunity to affirm or withdraw his guilty plea.

         No written plea agreement is included in the record on appeal. According to the testimonies of defendant, his counsel, and the prosecution at the plea hearing, defendant agreed to plead guilty to the three felonies and pay restitution on those charges and on two misdemeanor retail fraud charges in exchange for dismissal of the two misdemeanors, no Habitual Offender notices being filed, and sentencing at the bottom of the sentencing guidelines. The record makes no indication that a fine was contemplated by the agreement.

         At the plea hearing, the trial court informed defendant that it was not bound by the plea agreement, the offense of possession of a controlled substance with intent to deliver carried with it a maximum fine of $25, 000, and that defendant would be allowed to withdraw his plea in the event the trial court deviated from the agreement at sentencing. However, the sentencing record indicates that the trial court imposed a $500 fine in connection with LC No. 14-8692-FH, a breaking and entering charge and thereafter, did not afford defendant an opportunity to withdraw his plea. Because the fine imposed was not part of the sentencing agreement and not contemplated by the parties in relation to the breaking and entering charge for which it was assessed, we conclude that the trial court plainly erred by not giving defendant an opportunity to affirm or withdraw his plea after the fine was imposed. Accordingly, we vacate that portion of the judgment of sentence that requires defendant to pay a $500 fine. People v Morse, 480 Mich. 1074; 744 N.W.2d 169 (2008).

         III. THE VALIDITY OF THE RESTITUTION

         Defendant next challenges the trial court's order of restitution on the grounds it ordered restitution for uncharged conduct, that defendant's restitution was not proportionate to his participation in the crime, and that restitution for uncharged conduct, not submitted to a jury violates defendant's Sixth and Fourteenth Amendment rights.

         A. STANDARD OF REVIEW

         Defendant did not challenge the court's authority to order restitution on the dismissed misdemeanor charges or to the imposition of restitution in general before the trial court. "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." People v McKinley, 496 Mich. 410, 414-415; 852 N.W.2d 770 (2014). "We review a court's calculation of a restitution amount for an abuse of discretion, People v. Gubachy, 272 Mich.App. 706, 708, 728 N.W.2d 891');">728 N.W.2d 891 (2006), and its factual findings for clear error, People v. Fawaz, 299 Mich.App. 55, 64, 829 N.W.2d 259');">829 N.W.2d 259 (2012)." People v Corbin, 312 Mich.App. 352, 361; 880 N.W.2d 2');">880 N.W.2d 2 (2015). However, this Court reviews unpreserved claims of error under the plain error rule. Carines, 460 Mich. at 763. "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id.

         A criminal defendant need not "take any special steps to preserve the question of the proportionality of h[is] sentence." People v Cain, 238 Mich.App. 95, 129; 605 N.W.2d 28, 47 (1999). This Court reviews the proportionality of a trial court's sentence for an abuse of discretion. People v Paquette, 214 Mich.App. 336, 344-45; 543 N.W.2d 342 (1995). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. People v Cross, 281 Mich.App. 737, 739; 760 N.W.2d 314 (2008).

         B. ANALYSIS

         1. RESTITUTION AS PART OF DEFENDANT'S SENTENCE RECOMMENDATION

         Defendant first argues according to People v McKinley, supra, that he cannot be ordered to pay restitution for a charge that was dismissed. In McKinley, our Supreme Court "held 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." 496 Mich. at 419-420. Defendant posits that he cannot be ordered to pay restitution in connection with his two dismissed retail fraud charges because those charges did not result in a conviction. As an issue of first impression, ...


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