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People v. Spears-Everett

Court of Appeals of Michigan

July 2, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
REGINA LYNNE SPEARS-EVERETT, Defendant-Appellant.

          Kalamazoo Circuit Court LC No. 2013-001188-FH

          Before: K. F. Kelly, P.J., and Fort Hood and Redford, JJ.

          FORT HOOD, J.

         Defendant, Regina Lynne Spears-Everett, appeals by leave granted[1] the trial court's order denying her motion to modify her restitution payment schedule. We vacate the trial court's order denying defendant's motion and remand for proceedings consistent with this opinion.

         I. BACKGROUND

         In 2014, a jury convicted defendant of embezzling $20, 000 or more from a vulnerable adult, MCL 750.174a(5)(a). Defendant was sentenced to five years' probation, with the first nine months to be spent in jail. Defendant was also ordered to pay $169, 374.18 in restitution. Defendant's restitution was to be paid back in installments of $2, 830 per month beginning in September 2014. Defendant appealed her conviction to this Court, which affirmed both the conviction and the amount of restitution.[2]

         On August 4, 2016, defendant's probation officer, Amy Hill, alleged that defendant had failed to make restitution payments. Defendant was arraigned on this probation violation on August 30, 2016. The trial court held a probation hearing on September 21, 2016, during which Hill testified that defendant, at that time, had paid only $196.99 in restitution and that she was currently only paying about $20 per month toward her restitution. Defendant testified generally about her assets, liabilities, and life events that had impacted her employment and income. Defendant stated that she was paying "what [she] could afford" but was not paying the requisite $2, 830 per month. The trial court found defendant guilty of a probation violation. However, the information presented to the trial court was not sufficient for it to determine whether defendant could comply with the restitution order without "manifest hardship," so the court requested that the prosecutor schedule a debtor's examination.

         A debtor's examination was held on November 9, 2016. Defendant testified that she was married to Julius Everett and that the couple had four children between the ages of 10 and 17. The family lived together in a rental home. Everett was the only person listed on the rental agreement, and it appears that he alone paid the $1, 200 per month rent. Three of defendant's children were enrolled in private schools, at a cost of about $150 to $200 per month per child.

         Defendant was a doctor of podiatric medicine, but her license had been suspended in 2014 after she was convicted of the offense giving rise to the order of restitution. Defendant hoped to apply for license reinstatement that week. Upon her release from prison, defendant had been employed at Pero Farms, where she earned $8.15 per hour. Defendant worked at Pero Farms until she was in a car accident in December 2015. After the accident, defendant was not able to work and she did not receive any settlements, but she began to receive a $1, 200 per month personal injury benefit from her no-fault automobile insurance company. Defendant had recently started working at Meijer making $9 per hour, so she expected the $1, 200 stipend to end. Defendant did not have any other source of income.

         According to defendant, Everett was employed full-time as a pastor. His salary was about $4, 700 per month. Everett's salary was deposited into a joint bank account with defendant, but he immediately transferred it into his personal bank account. Defendant had been sued by the estate of the embezzlement victim, and a $130, 000 judgment had been entered against her individually as a result of that lawsuit. Defendant also had a $2, 500 judgment against her from failure to pay a Best Buy credit card. Defendant and Everett had a joint $250, 000 tax debt to the Internal Revenue Service.

         The trial court held a probation violation sentencing hearing on January 31, 2017 during which Everett also testified. Everett testified that he made about $4, 600 per month before taxes. Before defendant went to jail, she and Everett combined their incomes to pay their bills. After paying their monthly expenses, the couple had about $1, 047 per month left to spend on clothing, food, and incidentals. Everett had to "consistently" borrow from a line of credit to "make those ends meet" while defendant was in jail. Everett borrowed about $1, 000 per month while defendant was incarcerated and for a few months after her release. When defendant began working, she made about $800 or $900 per month. This helped Everett cover food and some incidentals, but he still borrowed money each month.

         Defendant obtained a job at Meijer on October 31, 2016. When she began working, her personal injury benefit checks decreased. Defendant's income was about $900 per month between Meijer and the personal injury checks. Because defendant was making an income, Everett was able to borrow less from his line of credit, but he continued to borrow money to pay the bills. Defendant and Everett consistently made the $20 restitution payment monthly. A larger restitution payment was not made because there was never a surplus of money, and Everett was borrowing money to pay the bills.

         Everett testified that his paycheck was deposited into a joint bank account at Fifth Third Bank because that account was associated with the line of credit that he used to borrow money. When defendant was incarcerated, Everett opened up a separate individual bank account at Fifth Third Bank. He attempted to move the line of credit to that account, but Fifth Third Bank would not permit him to do so. So, to keep the line of credit, Everett had to keep using the joint account. This was why his paycheck was deposited into the joint account and then transferred to his personal account. When defendant was released from jail, Everett continued to transfer most of his paycheck out of the joint account, but he would leave $500 to $700 in the joint account so that defendant could access that money.

         The trial court issued a written opinion and order on May 10, 2017. The trial court noted that MCR 6.425(E)(3) controlled and that the trial court was tasked with determining whether defendant's compliance with the terms of her restitution order would cause defendant "manifest hardship." In its written opinion, the trial court rendered detailed findings of fact regarding defendant's employment status and history, employability and earning ability, willfulness of her failure to pay, financial resources, basic living expenses, and other circumstances that bore on her ability to pay. Ultimately, the trial court concluded that "there does not appear to have been any point in time when Defendant could have made restitution payments of $2, 830 per month without a manifest hardship." Further, defendant had "technically made a good-faith effort to comply with the repayment of her court-ordered obligations considering that her initial probation officer informed her that payments of $20 per month were sufficient." The trial court then ordered defendant to pay restitution as follows:

From June 1, 2017 onward, Defendant will be required to pay 15% of her family's gross income, or $2, 830 (whichever is lesser) per month in restitution. Future analysis of "good-faith effort to comply" will be based on this calculus, not on [defendant's probation officer's] "$20 per month" directive[3] which should no longer be relied upon by anyone.

         On November 9, 2017, defendant moved to modify the restitution payment schedule pursuant to MCL 780.766(12). Defendant stated that she sought this modification because the new repayment schedule impermissibly required Everett to pay some of the restitution and improperly considered the family's gross, rather than net, income. In response, the prosecution argued that because defendant and Everett had comingled their incomes and expenses, there was no way for the court to determine defendant's actual ability to pay individually. The prosecution also countered that defendant had not provided any authority supporting her assertion that net income, rather than gross income, should be used in determining the schedule of payments for her restitution. The trial court heard defendant's motion on December 5, 2017. After hearing argument from both parties, the trial court found that "the language in its May 10 order unambiguously directs Defendant and Defendant alone to make restitution payments, and that the family's income is merely the best measuring rod to determine what Defendant must pay from her own funds." Further, the trial court found that defendant's gross income was "the most reasonable basis [from which] to calculate Defendant's monthly [restitution] payment." Therefore, the trial court found that the modified restitution order did not create a manifest hardship for defendant and defendant's motion was denied. Defendant now appeals by leave granted.

         II. STANDARDS OF REVIEW

         "A trial court's restitution order is reviewed for an abuse of discretion." People v Turn, 317 Mich.App. 475, 479; 896 N.W.2d 805 (2016). "An abuse of discretion occurs when the trial court renders a decision that falls outside the range of principled decisions." People v Rao, 491 Mich. 271, 279; 815 N.W.2d 105 (2012).

         We review de novo "[q]uestions of statutory interpretation[.]" Turn, 317 Mich.App. at 479. When interpreting statutes, this Court's paramount goal is to discern and effectuate the Legislature's intent. People v Sharpe, 502 Mich. 313, 326; 918 N.W.2d 504 (2018).

"If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written." People v Weeder, 469 Mich. 493, 497; 674 N.W.2d 372 (2004). In so doing, we assign each word and phrase its plain and ordinary meaning within the context of the statute. People v Kowalski, 489 Mich. 488, 498; 803 N.W.2d 200 (2011); MCL 8.3a. [Sharpe, 502 Mich. at 326-327.]

         This Court is precluded from reading anything into the language of an unambiguous statute that is not intended by the Legislature as reflected by its plain language. People v Phillips, 469 Mich. 390, 395; 666 N.W.2d 657 (2003).

         III. ANALYSIS

         "Restitution in Michigan is afforded not only by statute, but also by Const 1963, art 1, § 24, which entitles victims of crime to restitution relief." People v Grant, 455 Mich. 221, 229; 565 N.W.2d 389 (1997). Two statutes in Michigan provide authority for the trial court to order a defendant to pay restitution, the Crime Victim's Rights Act (CVRA), MCL 780.751 et seq. and Michigan's general restitution statute, MCL 769.1a. People v Garrison, 495 Mich. 362, 365; 852 N.W.2d 45 (2014). MCL 769.1a provides, in pertinent part:

(2) Except as provided in subsection (8), when sentencing a defendant convicted of a felony, misdemeanor, or ordinance violation, 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 or to the victim's estate.
* * *
(11) If the defendant is placed on probation or paroled or the court imposes a conditional sentence under section 3 of this chapter, any restitution ordered under this section shall be a condition of that probation, parole, or sentence. The court may revoke probation or impose imprisonment under the conditional sentence and the parole board may revoke parole if the defendant fails to comply with the order and if the defendant has not made a good faith effort to comply with the order. In determining whether to revoke probation or parole or impose imprisonment, the court or parole board shall consider the defendant's employment status, earning ability, and financial resources, the willfulness of the defendant's failure to pay, and any other special circumstances that may have a bearing on the defendant's ability to pay. [Emphasis added.]

         A review of MCL 769.1a confirms that it is the defendant who bears the onus of satisfying the obligation to pay restitution arising from criminal conduct. See, e.g., MCL 769.1a(3) (specifying that certain requirements may be imposed on the defendant if the defendant's criminal conduct resulted in damage to or loss or destruction of property); MCL 769.1a(4) (directing that the order of restitution may require specific obligations of a defendant if the criminal conduct resulted in physical or psychological injury to the victim); MCL 769.1a(10) ("[r]estitution shall be made immediately. However, the court may require that the defendant make restitution under this section within a specified period or in specified installments.") (Emphasis added.); MCL 769.1a(13) ("An order of restitution is a judgment and lien against all property of the defendant for the amount specified in the order of restitution.") (Emphasis added.); MCL 769.1a(14) ("[a] defendant shall not be imprisoned, jailed or incarcerated for a violation of probation or parole or otherwise for failure to pay restitution as ordered under this section unless the court or parole board determines that the defendant has the resources to pay the ordered restitution and has not made a good faith effort to do so.") (Emphasis added.)

         Additionally, MCL 780.766, a provision of the CVRA, provides, in pertinent part:

(2) Except as provided in subsection (8), when 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 or to the victim's estate.
* * *
(11) If the defendant is placed on probation or paroled or the court imposes a conditional sentence as provided in section 3 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.3, any restitution ordered under this section shall be a condition of that probation, parole, or sentence. The court may revoke probation or impose imprisonment under the conditional sentence and the parole board may revoke parole if the defendant fails to comply with the order and if the defendant has not made a good faith effort to comply with the order. In determining whether to revoke probation or parole or impose imprisonment, the court or parole board shall consider the defendant's employment status, earning ability, ...

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