901 N.W.2d 127
Mich. Ct. App.2017Background
- Michael Foster pleaded guilty to two counts of breaking and entering (MCL 750.110) and one count of possession with intent to deliver methamphetamine (MCL 333.7401(2)(b)(i)); plea included dismissal of two misdemeanor retail-fraud charges in exchange for restitution on those matters.
- Plea agreement contemplated sentencing at the bottom of the guidelines, no habitual-offender enhancement, concurrent B&E sentences, consecutive possession sentence; court warned it was not bound by the agreement and that Foster could withdraw his plea if the court deviated.
- At sentencing the court imposed concurrent prison terms for the B&E convictions and a consecutive longer term for the drug conviction; additionally ordered various restitution amounts and a $500 fine tied to one B&E count (not contemplated in the plea agreement).
- Foster did not object at sentencing to guideline scoring or factual contents of the PSIR, but later appealed the $500 fine and the restitution orders (including restitution tied to dismissed misdemeanors).
- The Court of Appeals reviewed statutory and constitutional challenges to restitution and the fine, and also addressed Foster’s ineffective-assistance claim regarding counsel’s failure to object.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of $500 fine imposed at sentencing | Prosecution: court has authority to impose fines within statutory maximums | Foster: fine was not part of plea agreement and he was not given chance to withdraw plea after court imposed it | Court vacated the $500 fine because it was not contemplated by plea agreement and Foster was not afforded the opportunity to affirm or withdraw his plea after the court deviated |
| Restitution for dismissed retail-fraud charges | State: restitution is mandatory for victims of the defendant's course of conduct; Foster agreed to restitution as part of plea/dismissal of misdemeanors | Foster: restitution for dismissed/uncharged conduct violates McKinley and cannot be imposed | Court upheld restitution: where defendant expressly agreed to restitution in exchange for dismissal, McKinley does not bar such negotiated restitution |
| Joint-and-several restitution / proportionality | State: statutes require full restitution; joint-and-several awards are permissible | Foster: joint-and-several restitution is disproportionate to his individual culpability | Court held proportionality/Milbourn analysis inapplicable to restitution; statutes mandate full restitution and joint-and-several liability is allowed |
| Sixth/Fourteenth Amendment challenge to restitution amount | State: restitution is remedial, not a punitive penalty subject to Apprendi/Alleyne jury findings | Foster: amount not proven to jury or admitted under oath, so constitutional protections apply | Court held restitution is not a criminal penalty for Apprendi purposes; judicial factfinding of restitution does not violate the jury-trial guarantee |
Key Cases Cited
- Killebrew v. People, 416 Mich. 189 (1982) (trial court must disclose plea agreement details and allow defendant to affirm or withdraw plea if court rejects agreed sentence)
- McKinley v. Michigan, 496 Mich. 410 (2014) (trial courts may not base restitution solely on uncharged conduct)
- Garrison v. Michigan, 495 Mich. 362 (2014) (interpretation of mandatory restitution statutes and legislative intent to require full restitution)
- Lockridge v. Michigan, 498 Mich. 358 (2015) (sentencing-guidelines Sixth Amendment jurisprudence; remedial severance of mandatory guideline provision)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury)
- Alleyne v. United States, 570 U.S. 99 (2013) (facts that increase mandatory minimums are subject to the jury-trial rule)
- Southern Union Co. v. United States, 132 S. Ct. 2344 (2012) (criminal fines are penalties and subject to Apprendi principles)