S T A T E O F M I C H I G A N C O U R T O F A P P E A L S PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED November 21, 2017 v No. 333961 Wayne Circuit Court SALAH AL-SHARA, LC No. 13-005911-01-FH Defendant-Appellant. Before: BECKERING, P.J., and O BRIEN and CAMERON, JJ. PER CURIAM. Following a bench trial, defendant was convicted of larceny by conversion of more than $1,000 but less than $20,000, MCL 750.362; MCL 750.356(3)(a). Defendant was sentenced to 18 months probation and ordered to pay various costs and fees, including $4,000 in restitution. He paid the required costs, fees, and restitution as part of his probation, and the restitution payment was disbursed to the complainant. Defendant appealed his conviction, and this Court reversed. 1 On remand, defendant moved the trial court for reimbursement of all fees paid, including the restitution. The trial court ruled that defendant was entitled to reimbursement for the costs and fees but not the restitution. Defendant now appeals by right. We affirm, but in light of new authority, we remand for consideration of defendant s due process argument. We review de novo questions of statutory interpretation. People v Dilworth, 291 Mich App 399, 401; 804 NW2d 788 (2011). Constitutional issues are also reviewed de novo. People v Smith, 498 Mich 466, 475; 870 NW2d 299 (2015). Crime victims retain both statutory and constitutional rights to restitution. People v Cross, 281 Mich App 737, 739; 760 NW2d 314 (2008). The statutory right to restitution is found in 16 of the Crime Victim s Rights Act (CVRA), MCL 780.751 et seq., and in the general restitution statute, MCL 769.1a. People v Turn, 317 Mich App 475, 479; 896 NW2d 805 (2016). Specifically, the CVRA provides that 1 People v Al-Shara, unpublished opinion per curiam of the Court of Appeals, issued July 23, 2015 (Docket No. 320628). -1-
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. [MCL 780.766(2).] If the defendant is placed on probation... any restitution ordered under this section shall be a condition of that probation.... MCL 780.766(11). Substantially similar provisions are found in the general restitution statute. See MCL 769.1a(2); MCL 769.1a(11). In determining that it was not required to reimburse defendant for the restitution he paid, the trial court relied on People v Diermier, 209 Mich App 449; 531 NW2d 762 (1995). In that case, this Court initially reversed the order requiring the defendant to pay restitution, but by the date of this Court s opinion, she had fully paid the [restitution] amount. Id. at 450. On remand, the trial court denied her motion for reimbursement. Id. On the subsequent appeal, we rejected the defendant s argument that two statutes, MCL 600.1465 and MCL 600.1475, required the trial court to reimburse her. Id. at 450-451. With respect to MCL 600.1465, we explained that it had no application to the facts of the case. Id. at 451. We then turned to MCL 600.1475 and explained that it ensures that a judgment creditor who receives money from a court clerk under a court order restores it in the event the order is found to be erroneous, and we agreed with the trial court that MCL 600.1475 did not require the trial court to reimburse defendant because the trial court had simply acted as a conduit in channeling [the] defendant s restitution payments to the victim. Id. We concluded that it would be unreasonable to require the county to reimburse [the] defendant for monies it paid which the county simply channeled to the victim and that [t]he statutes upon which [the] defendant relies cannot reasonably be interpreted to require this result. Id. On appeal, defendant argues that Diermier is distinguishable because the defendant in that case did not have her conviction reversed. However, that defendant s conviction in this case was reversed is not a meaningful distinction. In holding that the trial court was not required to reimburse the defendant, the Diermier Court did not emphasize that the defendant s conviction was still valid. Rather, it reasoned that the trial court no longer had possession of the restitution payment and that it had no statutory obligation to reimburse the defendant. That reasoning applies with equal force to the circumstances of this case. Defendant suggests that MCL 600.1475 is applicable in this case because there is no longer a judgement [] on which to collect. MCL 600.1475 provides that [i]n case any amount is collected on any judgment or decree, if such judgment or decree be afterward reversed the court shall award restitution of the amount so collected, with interest from the time of collection. MCL 600.1475 could be interpreted as requiring the trial court to order the complainant to tender back the restitution payment. Diermier, 209 Mich App at 451. Indeed, the CVRA contemplates that orders of restitutions may be treated like civil action judgments. See MCL 780.766(13). But defendant is requesting reimbursement directly from the trial court. The Diermier Court rejected that MCL 600.1475 required that result, and it did not rely on the defendant s conviction in reaching that conclusion. -2-
Defendant also argues that the trial court should have retained legal custody over the restitution payment pending appeal, but he provides no authority in support of that position. Indeed, the CVRA provides that [i]f not otherwise provided by the court under this subsection, restitution shall be made immediately. MCL 780.766(10). Further, defendant chose to not seek a stay of the criminal judgment or the order of restitution, and no court rule required the trial court to initiate a stay on his behalf. See MCR 7.209. While Diermier only addressed whether MCL 600.1465 and MCL 600.1475 required reimbursement of the paid restitution, defendant does not identify any other statute or court rule that would mandate that result. Instead, defendant raises policy concerns regarding the prospect of initiating a civil action against the complainant to recover the restitution amount. We need not decide whether a wrongfully convicted criminal defendant can maintain a civil action against a complainant because that issue is not before us. Because defendant fails to identify a statute or caselaw compelling the trial court to reimburse the restitution amount, we find no error in the trial court s ruling. However, while this case was pending on appeal, the United States Supreme Court issued Nelson v Colorado, US, 137 S Ct 1249; 197 L Ed 2d 611 (2017). The Nelson Court addressed the following question: When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction? Our answer is yes. [Id. at 1252.] It bears noting that the Nelson Court did not directly address the issue in this case. The issue in Nelson was based on legislation from Colorado requiring a defendant to prove her innocence by clear and convincing evidence to obtain the refund of costs, fees, and restitution paid pursuant to an invalid conviction. Id. at 1255. The Nelson Court s holding was limited to ruling that this scheme did not comport with due process and remanding the case to the Colorado Supreme Court for further proceedings. Id. at 1258. Interestingly, in a concurring opinion, one of the justices criticized that the majority decision flatly declares that the State is obliged to refund... restitution in just the same way as fees and court costs, in part because of how restitution s unique characteristics might affect a due process analysis. Id. at 1261-1263 (ALITO, J., concurring in result only) (citation omitted; alteration in original). Though we might exercise our discretion to review this issue as a question of law for which the necessary facts have been presented, this Court should decline to do so when it would require us to construct and evaluate our own arguments. Aguirre v Dep t of Corrections, 307 Mich App 315, 326; 859 NW2d 267 (2014). Moreover, this Court s analysis of this issue would benefit from a decision of the trial court and full argument. Id. Accordingly, in light of new authority, we remand this case to the trial court for brief and argument on the issue. 2 2 We note that defendant raised a due process argument before the trial court, albeit in a cursory fashion, and the trial court did not address it. Therefore, the issue is preserved. See Peterman v -3-
Remanded for proceedings consistent with this opinion. We do not retain jurisdiction. /s/ Jane M. Beckering /s/ Colleen A. O'Brien State Dep t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). However, defendant did not address Nelson on appeal, and plaintiff does not address the due process issue on appeal. We generally do not address the merits of unbriefed issues. People v Byrne, 199 Mich App 674, 677; 502 NW2d 386 (1993). -4-
S T A T E O F M I C H I G A N C O U R T O F A P P E A L S PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED November 21, 2017 v No. 333961 Wayne Circuit Court SALAH AL-SHARA, LC No. 13-005911-01-FH Defendant-Appellant. Before: BECKERING, P.J., and O BRIEN and CAMERON, JJ. CAMERON, J. (concurring). I concur with the majority opinion, but write separately to elaborate on the issue before the trial court on remand. The United States Supreme Court recently reviewed the procedures underlying Colorado s Exoneration Act, which is available to defendants who wrongfully serve all or part of a term of incarceration pursuant to a felony conviction. Nelson v Colorado, US, ; 137 S Ct 1249, 1254; 197 L Ed 2d 611 (2017). The Act provides that [a] successful petitioner may recoup, in addition to compensation for time served, any fine, penalty, court costs, or restitution... paid... as a result of his or her wrongful conviction. Id. at 1254 (citation omitted). However, [u]nder the Colorado law, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. Id. at 1252. The Court held that [t]o comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated. Id. at 1258. It explained that once a defendant s conviction is erased, the presumption of innocence is restored, and Colorado is not allowed to retain funds taken from [the defendants] solely because of their nowinvalidated convictions. Id. at 1256. Therefore, the Nelson Court concluded that Colorado s Exoneration Act did not comport with due process because it required a defendant to prove her innocence by clear and convincing evidence to obtain a refund of costs, fees, and restitution. Id. at 1255-1256. Because we are ordering that this case be remanded for briefing and argument, I write to highlight the issue before the trial court. Here, like Nelson, the first question turns on whether due process requires repayment of the restitution that defendant paid to the complaining witness. The answer to this question is most certainly yes. The Nelson Court explained that [w]hen a -1-
criminal conviction is invalidated by a reviewing court and no retrial will occur,... the State [is] obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction[.] Id. at 1252. The more challenging question before the trial court will be how defendant will recover restitution already paid to a third party. The majority in Nelson provides little guidance. Unlike Colorado s Exoneration Act, Michigan law is silent as to the procedure by which a defendant is to be reimbursed for costs, fees, and restitution from an invalid conviction. 1 Because there is no current procedure in place, the trial court will be required to implement a procedure that ensures defendant receives due process. We know that the government may not impose anything more than minimal procedures on the refund of exactions, id. at 1258, and a procedure that requires a defendant to either (1) be saddled with any proof burden, e.g., to prove his or her innocence by clear and convincing evidence, Nelson, 137 at 1256, or (2) file a separate lawsuit to recover restitution, including the cost of mounting a claim, id. at 1257, violates principles of due process. Possibly the most challenging question for the trial court is who will repay defendant for the restitution paid to the complaining witness. The Nelson majority held that the State must pay. However it is unclear whether State encompasses both state government 2 and local government. 3 If the State means only the state government, then the analysis ends there, and the state of Michigan must bear the cost. However, if the State also encompasses local government, then the trial court must decide whether the county or state reimburses restitution to the defendant. Relevant to this consideration may include the state s funding structure relating to the judiciary and the prosecuting authority. For instance, Colorado and Michigan fund their trial 1 While the Michigan Legislature has enacted the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq., the act does not provide for reimbursement of costs, fees, and restitution for wrongfully convicted defendants. Even if it did, the WICA does not apply to defendants who did not receive a term of incarceration. MCL 691.1755(1)(a) (requiring a defendant to prove by clear and convincing evidence that he or she was sentenced to a term of imprisonment in a state correctional facility for the crime or crimes, and served at least part of the sentence ). Additionally, the William Van Regenmorter Crime Victim s Rights Act, MCL 780.751 et seq., while providing statutory authority for the payment of restitution to crime victims, does not provide any provisions relating to circumstances when a defendant s conviction is invalidated and he or she has wrongfully paid restitution. At most, MCL 780.766(22) states that a court may amend an order of restitution entered under this section on a motion by the prosecuting attorney, the victim, or the defendant based upon new information related to the injury, damages, or loss for which the restitution was ordered. This too provides minimal guidance. 2 Defined as [t]he government of a state of the United States. Black s Law Dictionary (10th ed). 3 Defined as [t]he government of a particular locality, such as a city, county, or parish; a governing body at a lower level than the state government. Black s Law Dictionary (10th ed). -2-
courts and prosecutors very differently. The Colorado state government funds each district court (equivalent to our circuit courts) through its General Fund, 4 while the Michigan judiciary has a mix of state and local funding, where the operating expenses for circuit courts are locally funded. 5 Further, unlike the state of Colorado, the prosecuting authority in Michigan that pursued criminal charges in this case without sufficient evidence is funded by the county, not the state. 6 MCL 49.159(1)-(2). In evaluating this issue, the trial court may also consider whether a state or county entity received and remitted restitution to the complainant, or any other relevant factor in determining which governmental entity is responsible for reimbursing the defendant for restitution. /s/ Thomas C. Cameron 4 See Colorado Judicial Branch, Educational Resources, Court Facts, <https://www.courts.state.co.us/courts/education/court_facts.cfm> (accessed November 8, 2017). Colorado s district courts are the equivalent of Michigan s circuit courts. 5 See National Center for State Courts, Michigan, <http://www.ncsc.org/information-and- Resources/Budget-Resource-Center/Budget_Funding/michigan.aspx> (accessed November 8, 2017). 6 In contrast, Colorado s district attorneys receive 80% of their compensation from the state and the remainder from the county. Colo Rev Stat Ann 20-1-306. The counties, however, fund the necessary expenses for maintaining the district attorney offices. Colo Rev Stat Ann 20-1-302. -3-