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.
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 grantedthe 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.
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."
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."
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
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.
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
VALIDITY OF THE FINE
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.
STANDARD OF REVIEW
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
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." 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.
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.
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
THE VALIDITY OF THE RESTITUTION
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.
STANDARD OF REVIEW
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."
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).
RESTITUTION AS PART OF DEFENDANT'S SENTENCE
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,