Lead Opinion
In this case, we decide whether a trial court’s restitution award that is based solely on uncharged conduct
I. FACTS AND PROCEDURAL HISTORY
In January 2011, Battle Creek police officers arrested the defendant because they believed him to be responsible for a series of thefts of commercial air conditioning units in the area. Following a trial, a jury found the defendant guilty of larceny over $20,000, malicious destruction of property over $20,000, and inducing a minor to commit a felony.
The Court of Appeals vacated the defendant’s conviction for larceny over $20,000, but otherwise affirmed his convictions and sentences. People v McKinley, unpublished opinion per curiam of the Court of Appeals, issued May 16, 2013 (Docket No. 307360). The panel rejected the defendant’s argument that Michigan’s restitution scheme is unconstitutional because it permits trial courts to impose restitution on the basis of facts not proven to the trier of fact beyond a reasonable doubt. Id. at 8.
We granted leave to appeal, 495 Mich 897 (2013), limited to the following issues:
(1) whether an order of restitution is equivalent to a criminal penalty, and (2) whether Michigan’s statutory restitution scheme is unconstitutional insofar as it permits the trial court to order restitution based on uncharged conduct that was not submitted to a jury or proven beyond a reasonable doubt. See Southern Union Co v United States, 567 US_; 132 S Ct 2344; 183 L Ed 2d 318 (2012); Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000); contra People v Gahan, 456 Mich 264 (1997).
II. STANDARD OF REVIEW
The proper application of MCL 780.766(2) and other statutes authorizing the assessment of restitution at
III. ANALYSIS
The defendant’s challenge to the restitution award is premised on the Sixth Amendment to the United States Constitution, specifically Apprendi and its progeny. Defendant challenges both the amount of the restitution award above $63,749.44 (the amount based on uncharged conduct) and the amount between $20,000 and $63,749.44 (the amount based on convicted conduct above and beyond the amount specifically found by a jury). Only the former argument was preserved by a timely objection.
As to the defendant’s challenge to the restitution award based on convicted conduct, we conclude that the issue is not properly before us because the defendant has waived it.
A. STATUTORY INTERPRETATION
MCL 780.766(2) provides in part that “the [sentencing] 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.” In Gahan, we discussed the Legislature’s use of the term “course of conduct” and determined that term should be given a broad construction in light of its historical background and prior decisions from the Court of Appeals interpreting a similar statute.
Our conclusion is further reinforced when the language of MCL 780.766(2) is read in pari materia with other provisions in the Crime Victim’s Rights Act, MCL 780.751 et seq.
Because MCL 780.766(2) does not authorize the assessment of restitution based on uncharged conduct, the trial court erred by ordering the defendant to pay $94,431 in restitution to the victims of air conditioner thefts attributed to the defendant by his accomplice but not charged by the prosecution. We therefore vacate that portion of the defendant’s judgment of sentence. As this holding makes it unnecessary to address the question whether restitution based on uncharged conduct is unconstitutional under the Sixth Amendment and Apprendi and its progeny, we decline to reach that question.
Contrary to the dissent’s assertion, we do not “lightly cast aside” our decision in Gahan. Rather, in determining whether to overrule our decision in Gahan, we are mindful of the factors for overruling our prior decisions set forth in Robinson v Detroit, 462 Mich 439, 463-468; 613 NW2d 307 (2000). Stare decisis is “generally ‘the preferred course’ ” because it “ ‘contributes to the actual and perceived integrity of the judicial process.’ ” Id. at 463, quoting Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998). We consider whether Gahan was wrongly decided, whether it defies practical workability, whether reliance interests would work an undue hardship, and whether changes in the law or the facts no longer justify the questioned decision. Id. at 464.
We have little difficulty concluding that Gahan was wrongly decided. For reasons previously explained, we believe that the Gahan Court’s analysis of MCL 780.766(2) is incomplete because it failed to consider the clause “that gives rise to the conviction.” That significant qualification to the phrase “course of conduct” renders untenable the Gahan Court’s conclusion that the term “course of conduct” should be given a reading so broad that it includes uncharged conduct. This factor weighs in favor of overruling Gahan.
We see no basis for concluding that Gahan defies practical workability. Trial courts hold hearings and make restitution determinations every day under the Gahan Court’s reading of the statute, and we see nothing to indicate that Gahan is difficult to apply. This factor weighs in favor of retaining Gahan.
Regarding reliance, we inquire “whether the previous decision has become so embedded, so accepted, so
Further, when dealing with an issue of statutory interpretation, we have said that “it is to the words of the statute itself that a citizen first looks for guidance in directing his actions.” Id. Accordingly, when a court misconstrues or misreads a statute, “it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court’s misconstruction.” Id. Because Gahan interpreted only one phrase in MCL 780.766(2), and in doing so did not address another phrase in the statute, we conclude that reliance on its holding is not justified. Because overruling Gahan will not result in practical, real-world dislocations, this factor weighs in favor of its overruling.
Finally, we are aware of no intervening changes in the law or the facts involving restitution awards that would either support or undermine our statutory inter
In sum, we conclude that Gahan was wrongly decided and that no reliance interests are upset by its overruling. Stare decisis is a “ ‘principle of policy’ rather than ‘an inexorable command,’ ” and we are not constrained to follow precedent that is badly reasoned. Id. at 464, quoting Hohn, 524 US at 251. Accordingly, we conclude that Gahan should be overruled to the extent that it held that MCL 780.766(2) “authorizes the sentencing court to order criminal defendants to pay restitution to all victims, even if those specific losses were not the factual predicate for the conviction.” Gahan, 456 Mich at 270.
IV CONCLUSION
We hold that MCL 780.766(2) does not authorize trial courts to impose restitution based solely on uncharged conduct. We overrule our decision in Gahan to the extent that it held to the contrary. Therefore, we vacate the portion of the judgment of sentence imposing $158,180.44 in restitution and remand to the trial court for entry of an order assessing $63,749.44 in restitution against the defendant.
For purposes of this opinion, the phrase “uncharged conduct” refers to criminal conduct that the defendant allegedly engaged in that was not relied on as a basis for any criminal charge and therefore was not proved beyond a reasonable doubt to a trier of fact.
The defendant employed a teenage accomplice, whom he rewarded with money and cigarettes, to help him remove the air conditioning units. His accomplice testified against the defendant at trial pursuant to a plea agreement.
At the restitution hearing, defense counsel argued that “the current state of the law would require that. . . there would have been have [sic] some proof beyond a reasonable doubt that those other ‘complainants’ if you will, were also those that were victimized by the Defendant.” In other words, counsel argued only that the portion of the restitution award based on the uncharged offenses had to be proven beyond a reasonable doubt.
This rule is well established in both United States Supreme Court caselaw and this Court’s precedent. See Ashwander v Tenn Valley Auth, 297 US 288, 347; 56 S Ct 466; 80 L Ed 688 (1936) (Brandéis, J.,
That is, given that we conclude that Michigan’s statutory restitution scheme does not permit the trial court to order restitution based on uncharged conduct, it is unnecessary to decide whether such a scheme would be unconstitutional. Contrary to the dissent’s characterization, there is nothing at all inappropriate as to the approach we have taken in this case, and it is an approach that is consistent with the well-established rule that the “constitutionality of an act will not be passed upon where a case may be otherwise decided!.]” Smith, 267 Mich at 418. Furthermore, the parties in this case were in no way denied an “opportunity to be heard” regarding this issue, as suggested by the dissent. The parties were free to argue that Gahan wrongly held that Michigan’s statutory restitution scheme permits the trial court to order restitution based on uncharged conduct, and defense counsel did at least address this point at oral argument, at which he stated:
I think Justice McCormack’s second question is whether there is an alternative way of addressing this and one way would be to limit this Court’s previous decision in People v Gahan. In People v Gahan, this Court construed the statutory language very broadly where a course of conduct could mean anything — it didn’t — it wasn’t limited to just what the jury found.
In addition, in his brief filed with the Court, defense counsel specifically asked us to “overrule Gahan.” Finally, the prosecutor also recognized that “[t]his Court, in its order granting leave, pointed the parties at [Gahan] as a potential source of useful precedent.” Therefore, it is clear
Finally, we note that despite the dissent’s criticism of our decision not to reach the constitutional question and its defense of Gahan’s statutory analysis, the dissent does not reach the constitutional question either. And if that constitutional hurdle proves unresolvable to the dissent, one wonders whether that opinion should be a concurrence instead.
Notably, and we believe further supporting our decision not to reach the constitutional issue, the apparent reason other courts have not been asked to address the argument that the defendant raises here is because those courts have (seemingly uniformly) construed their restitution statutes as allowing the assessment of restitution based only on convicted conduct. See, e.g., Hughey v United States, 495 US 411, 413; 110 S Ct 1979; 109 L Ed 2d 408 (1990); State v Clapper, 273 Neb 750, 758; 732 NW2d 657 (2007); Commonwealth v McIntyre, 436 Mass 829, 835 n 3; 767 NE2d 578 (2002) (collecting cases applying various standards requiring a causal relationship between the restitution award and the conviction). Accordingly, we are aware of no court that has reached the argument defendant preserved below: whether Apprendi and its progeny bar the assessment of restitution based on uncharged conduct. See also United States v Sharma, 703 F3d 318, 323 (CA 5, 2012) (“The [Mandatory Victim Restitution Act, 18 USC 3663A] limits restitution to the actual loss directly and proximately caused by the defendant’s offense of conviction. An award of restitution cannot compensate a victim for losses caused by conduct not charged in the indictment or specified in a guilty plea, or for losses caused by conduct that falls outside the temporal scope of the acts of conviction.”).
Waiver is defined as “the ‘intentional relinquishment or abandonment of a known right.’ ” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000), quoting People v Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999) (citation and quotation marks omitted).
Those prior decisions interpreted MCL 771.3(2), now MCL 771.3(l)(e), which contains identical language to MCL 780.766(2) for all purposes relevant to our analysis. Similarly, other statutes allowing for the assessment of restitution also have identical language for all relevant purposes. See, e.g., MCL 769.1a(2); MCL 780.826(2).
The dissent provides an impassioned defense of Gahan and disagrees that the Gahan Court ignored this language, but in fact other than quoting this statutory language as part of its background discussion, the Gahan Court did not discuss it or attempt to interpret it or give independent meaning to it; it limited its statement of the question before
The dissent’s view that the Legislature intended to adopt the unique, common-law meaning of “course of conduct” from People v Gallagher, 55 Mich App 613; 223 NW2d 92 (1974) is unpersuasive. First, as the dissent acknowledges, that rule was not universally followed. See People v Blaney, 139 Mich App 694; 363 NW2d 13 (1984). Second, even in cases purporting to follow Gallagher, its scope was open to interpretation. See People v Seda-Ruiz, 87 Mich App 100, 105; 273 NW2d 602 (1978) (Maher, J., concurring) (“I write separately to state my concern that the record does not reveal that all the bad checks allegedly issued by defendant were made part of the plea agreement. Unless defendant agreed to make restitution for all the checks and the prosecutor agreed not to institute charges on the basis of those checks, defendant may not be required to make restitution for all the checks, but only those listed in the information to which he pled guilty and the information which was nolle prossed as part of the plea agreement. In such a case, of course, the prosecutor would be entitled to bring charges on the basis of the checks which are not part of the plea agreement.”) (emphasis added). We conclude that interpreting the statutory language according to its plain meaning is preferable to concluding that the Legislature selected such language to adopt a standard that was not consistently followed or fully settled.
Our reading does not read the phrase “course of conduct” out of the statute, as the dissent asserts. Depending on the nature and circumstances of the offense, a single act of “conduct” may be sufficient to give rise to the offense, or a series of acts — i.e., a “course of conduct” — may be necessary. For example, a defendant may be assessed restitution for a conviction for assault with a deadly weapon for firing a gun at a victim and be required to pay the victim’s resulting medical bills, or a defendant may be assessed restitution for a conviction for armed robbery for firing a gun at a victim and taking the victim’s money and be required to pay the victim’s medical bills and repay the money taken from the victim. The latter example involves a “course of conduct” that gives rise to a conviction, and both the defendant’s assault and his theft could result in a restitution award under our decision today.
“[Sltatutes in pari materia are to be taken together in ascertaining the intention of the legislature, and . .. courts will regard all statutes
Because we do not reach the defendant’s constitutional challenge to the restitution award based on Apprendi and its progeny, we do not consider the impact of those cases in our analysis of this factor.
Dissenting Opinion
(dissenting). This Court granted leave to appeal, in part, to address whether “Michigan’s statutory restitution scheme is unconstitutional insofar as it permits the trial court to order restitution based on
I. BACKGROUND: PEOPLE v GAHAN
The majority opinion gives little attention and weight to Gahan's actual analysis. Accordingly, a brief overview of Gahan is necessary.
In Gahan, a defendant sold motor vehicles on consignment at his used car lot, repeatedly telling his customers that their cars sold for less than the true amount of the sale and keeping the difference for himself. The defendant perpetrated this scheme on numerous individuals, ultimately leading to the defendant’s conviction of one count of embezzlement regarding a victim who was swindled out of $1,100. Gahan,
The Court of Appeals vacated the order of restitution in a split decision, with the majority concluding that, under the plurality opinion of People v Becker, 349 Mich 476, 486; 84 NW2d 833 (1957), “a defendant can be ordered to pay restitution only to the victim(s) of the crime(s) for which he is convicted.” People v Gahan, unpublished opinion per curiam of the Court of Appeals, issued January 16,1996 (Docket No. 172159), p 5. The Court of Appeals majority reasoned that, although there were similarities between the defendant’s crime and the other acts, the defendant was neither tried for nor convicted of the other acts and, thus, the other acts were related to transactions that were independent from the single transaction that provided the factual basis for the conviction. Stated another way, the majority of the panel held that the other acts were not part of the “course of conduct that gave rise to this conviction.” Id. The Court of Appeals dissent disagreed, explaining that MCL 780.766(2), part of the Crime Victim’s Rights Act, requires that a court order “ ‘that the defendant . . . make restitution to any victim of the defen
In Gahan, we granted leave to appeal to consider whether MCL 780.766(2) permits a sentencing court to “order a defendant to pay restitution to compensate all the victims who were defrauded by [the defendant’s] criminal course of conduct, even though the specific criminal acts committed against some . . . victims were not the [factual predicate for] the defendant’s conviction.” Gahan, 456 Mich at 265. See, also, id. at 269-270. After full briefing and oral argument, this Court unanimously concluded that it does. Id. at 270.
In reaching our conclusion, we stated that the statute applicable at the time was clear that “restitution may be ordered with respect to ‘any’ victim” as defined by the act. Id. at 271 (emphasis added).*
II. ANALYSIS
At issue is whether the majority is correct that Gahan is an “untenable,” “badly reasoned,” and “plainly incomplete” opinion that “ignored” the language of the statute. Despite the majority’s bold characterizations of Gahan’s analysis, I continue to believe that Gahan correctly interpreted the plain language of the statute at issue.
As the above background illustrates, this Court was not presented with a novel issue in Gahan. Dating back to the late 1960s, panels of the Court of Appeals have been asked to address the proper scope of restitution orders in light of arguments from defendants, like the
Notably, in People v Gallagher, 55 Mich App 613; 223 NW2d 92 (1974), the Court of Appeals addressed whether MCL 771.3 authorized restitution “ ‘only as to loss caused by the very offense for which [the] defendant was tried and convicted,’ ” as argued by the defendant. Gallagher, 55 Mich App at 617-618, quoting Becker, 349 Mich at 486. At the time, MCL 771.3 provided that, as a condition of probation, a court could order restitution “ ‘in whole or in part to the person or persons injured or defrauded, as the circumstances of the case may require or warrant, or as in its judgment may be meet and proper.’ ” Gallagher, 55 Mich App at 618, quoting MCL 771.3. Agreeing with Nawrocki that the statutory language authorized restitution for losses exceeding those that formed the factual basis for the conviction, Gallagher rejected the defendant’s reliance on Becker, which, after a review of federal authority, concluded that restitution ordered under MCL 771.3 could only be imposed for offenses for which the defendant was convicted. Becker, 349 Mich at 485-486. See, also, Gallagher, 55 Mich App at 618. Gallagher explained that not only was Becker nonbinding but, in enacting MCL 771.3, the Michigan Legislature did not choose to follow the narrower federal approach, Gallagher, 55 Mich App at 618, which limited restitution to “ ‘aggrieved parties for actual damages or loss caused by the offense [for] which conviction was had,’ ” United
Later panels of the Court of Appeals applied Gallagher’s interpretation of MCL 771.3, holding that the statute permitted restitution to all victims of a defendant’s course of conduct, even if the victim’s specific losses did not form the factual basis of the defendant’s conviction. See Seda-Ruiz, 87 Mich App at 102-103 (rejecting a challenge to a restitution order on the ground that it was unlawful for the defendant to be required to pay back amounts for other losses not mentioned in the specific charges for which the defendant was convicted);
With this expanded historical backdrop in mind, I continue to believe that Gahan correctly determined that the phrase “course of conduct” in the Crime Victim’s Rights Act should be given a broad construction consistent with its unique meaning at common law. As this Court has repeatedly stated, “[i]t is a well-established principle of statutory construction that the
It bears emphasizing that, despite conflicting opinions of the Court of Appeals regarding the applicability of the Becker plurality and the proper scope of restitution ordered as a condition of probation, the Legislature nevertheless incorporated a restitution provision into the Crime Victim’s Rights Act substantially mirroring the language of Gallagher and its progeny.
I also disagree with the majority that, in determining the Legislature’s intent, seven Justices of this Court “ignored” and “devoted no attention to” one phrase within MCL 780.766(2), i.e., that the defendant make restitution to any victim of the defendant’s course of conduct “that gives rise to the conviction.” The majority asserts that, because the phrase “gives rise to” means “to produce or cause,” the statutory language requires a causal link between conduct for which the defendant is criminally charged and the defendant’s conviction. Stated another way, the majority reasons that “[o]nly crimes for which a defendant is charged ‘cause’. . . the conviction” and, thus, “conduct for which a defendant is not criminally charged and convicted is necessarily not part of a course of conduct that gives rise to the conviction.” Although I agree with the majority that the statute requires some type of a causal link between a defendant’s “course of conduct” and his conviction, I disagree with the majority that the requisite connection necessarily excludes uncharged conduct from the scope of a defendant’s “course of conduct.” As Gahan ex
Similarly, Gahan does not permit a restitution award for any victim of a defendant’s course of conduct without qualification, as the majority claims. Instead, by requiring that a defendant’s conviction must have arisen from a specific “course of conduct,” the Legislature limited the “course of conduct” from which restitution may be ordered. Thus, a defendant cannot be ordered to pay restitution for “totally dissimilar crimes committed at different times,” or those involving an unrelated illegal scheme. Gahan, 456 Mich at 273 n 11. Rather, the defendant is only required to compensate for “all the losses attributable to the illegal scheme that [actually] culminated in [the] conviction” that triggered restitution. Id. at 272. As Gahan explained, in order for uncharged conduct to be included within the restitution order, the uncharged conduct must have occurred as part of the same or similar illegal scheme from which the defendant’s conviction arose. Gahan, 456 Mich at 272-273. Accordingly, Gahan properly concluded that the statutory language requires a defendant to provide restitution not only to the victims that are the subject of the very act that results in the defendant’s conviction, but also to those harmed by the defendant’s related course of criminal conduct from which the defendant’s conviction arose. In doing so, Gahan properly gave effect to each word within the statute, while giving the phrase “course of conduct” its unique common-law
Notably, our grant order in this case assumed that Gahan’s statutory interpretation was correct. Yet, despite the interpretation unanimously afforded to the statute’s plain language by this Court in Gahan, the majority brushes Gahan aside on the basis of its conclusion that Gahan is so poorly reasoned that it must be overruled without full briefing and oral argument on
Further, in classifying Gahan as an “untenable” opinion that “ignored” the statutory language, the majority fails to appreciate that Gahan was decided after a careful review of a divided Court of Appeals opinion, after full briefing and oral argument, and after post-argument discussions. Thus, in overruling Gahan by finding dispositive an issue neither raised nor briefed by the parties in this case, the majority not only fails to appreciate the thoughtful consideration given to the statutory language by the Gahan Court, but it also fails to consider whether the advocates in this case could
III. CONCLUSION
Today, the majority holds that seven Justices of this Court ignored a portion of the statute at issue. I disagree with the majority’s characterization of Gahan’s analysis. But I also disagree with the majority’s decision to disregard one of the foundational principles of our adversarial system of justice by failing to give each party an opportunity to be heard in order to assist this Court in understanding the issue before it and prevent a preliminary understanding of the issue from improperly influencing the Court’s final decision of an issue that was previously and unanimously decided. Accordingly, I must respectfully dissent.
The defendant also pleaded guilty to one count of embezzlement involving another victim in a separate proceeding. Gahan, 456 Mich at 267 n 3.
After the defendant’s conviction in Gahan, the Legislature amended the Crime Victim’s Rights Act to “require, rather than permit, that restitution be ordered.” Gahan, 456 Mich at 270 n 6. Specifically, MCL 780.766 now provides, in relevant part:
(1) As used in this section only, “victim” means an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime.. ..
(2) ... [W]hen sentencing a defendant convicted of a crime, the court shall order, in addition to or in lieu of any other penalty*428 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 ....
This Court also compared the broader statutory language from MCL 780.766(2) with federal caselaw interpreting a federal restitution statute. Gahan, 456 Mich at 271 n 8. Specifically, unlike its federal counterpart, MCL 780.766(2) does not limit restitution to the offense of conviction by providing that, “when sentencing a defendant convicted of an offense,” a court “may order... that the defendant make restitution to any victim of such offensel.T 18 USC 3663(a)(1)(A) (emphasis added). See, also, Gahan, 456 Mich at 271 n 8.
In Seda-Ruiz, the Court of Appeals remanded to the trial court for an evidentiary hearing to address the defendant’s argument that he was not given the opportunity to examine all of the checks that were the subject of the restitution order and that some of the checks for which he was required to pay restitution were “not his checks.” Seda-Ruiz, 87 Mich App at 104. The majority states that the concurring opinion in SedaRuiz, which agreed with the decision to remand but would have additionally limited restitution to only those checks for which the defendant had pleaded guilty or which were part of the plea agreement, id. at 105, suggests that Gallagher’s interpretation of the proper scope of restitution was in dispute. Although some jurists, such as the concurring author in Seda-Ruiz, may have disagreed with Gallagher’s nonbinding interpretation of the proper scope of restitution under MCL 771.3, see MCR 7.215(J)(1), it does not follow that the meaning of the phrase “course of conduct” as used by Gallagher to describe the scope of restitution under MCL 771.3 was unsettled at the time of the Crime Victim’s Rights Act’s
In fact, after the Crime Victim’s Rights Act was enacted, panels of the Court of Appeals continued to apply Gallagher’s interpretation to MCL 769.1a, Michigan’s similarly worded general restitution statute, as well as MCL 780.766(2), noting that the language adopted by the Legislature was essentially identical to that employed by prior Court of Appeals opinions interpreting MCL 771.3. See, e.g., People v Littlejohn, 157 Mich App 729; 403 NW2d 215 (1987); People v Bixman, 173 Mich App 243; 433 NW2d 417 (1988); People v Greenberg, 176 Mich App 296; 439 NW2d 336 (1989); People v Persails, 192 Mich App 380; 481 NW2d 747 (1991); People v Letts, 207 Mich App 479; 525 NW2d 171 (1994).
Compare Gahan, 456 Mich at 270 (emphasis added) (noting that MCL 780.766(2) provided that a trial court may order that the defendant make restitution to “any victim of the defendant’s course of conduct which gives rise to the conviction"), with Gallagher, 55 Mich App at 618 (emphasis added) (interpreting MCL 771.3 as permitting restitution for
That MCL 771.3 was subject to varying interpretations does not undermine Gahan’s interpretation of MCL 780.766(2), as the majority states. As previously noted, the Legislature is presumed to act with knowledge of judicial interpretations by this Court and the Court of Appeals, see Ford Motor Co v City of Woodhaven, 475 Mich 425, 439-440; 716 NW2d 247 (2006), yet, in defining the scope of restitution under the Crime Victim’s Rights Act, the Legislature did not simply incorporate the language of MCL 771.3 into the act. Instead, it selected language mirroring Gallagher’s broad interpretation of MCL 771.3, rather than incorporating language similar to decisions that limited restitution under MCL 771.3 to only those losses related to the transaction that formed the factual basis for the conviction. Simply stated, the fact that Gallagher’s interpretation of MCL 771.3 was not universally followed is irrelevant in light of the Legislature’s awareness of conflicting interpretations of MCL 771.3 and its subsequent choice to incorporate language mirroring Gallagher’s “course of conduct” language into the Crime Victim’s Rights Act.
I also disagree with the majority’s suggestion that Gahan’s interpretation of MCL 780.766(2) conflicts with MCL 780.767. MCL 780.767(1) provides that, “[i]n determining the amount of restitution to order under [MCL 780.766], the court shall consider the amount of the loss sustained hy any victim as a result of the offense.” The majority concludes that, by referring to “the offense,” MCL 780.767 can “only refer to the offense of which the defendant was convicted, because it is that ‘offense’ that makes him subject to being ordered to pay restitution in the first place.” However, MCL 780.767 can be read harmoniously with Gahan’s interpretation of MCL 780.766(2). Notably, it is MCL 780.766(2) that defines the proper scope of the restitution order, explaining that the order shall include losses for any victim of a defendant’s “course of conduct that gives rise to the conviction.” Accepting that the phrase “course of conduct” within MCL 780.766(2) includes uncharged conduct that does not form the factual basis for a defendant’s conviction, MCL 780.767 merely directs the sentencing court to consider, in determining the amount of restitution to order under MCL 780.766(2), the loss sustained by any victim as a result of an uncharged offense that is a part of the defendant’s illegal scheme from which the defendant’s conviction arose. To that end, although the issue was not raised by the parties and therefore I do not opine on it, nowhere in the 21 pages of transcript of the restitution hearing did defense counsel contradict the prosecution’s evidence regarding the defendant’s commission of the uncharged crimes or the amount of restitution assessed for each.
The majority guides us astray in suggesting that the parties addressed the validity of Gahan’s statutory analysis in their briefs to this Court. In light of this Court’s grant order, which limited, the issues to be briefed, it is no surprise that the parties did not actually argue whether this Court should overrule Gahan on nonconstitutional statutory interpretation grounds in their briefs, but instead focused solely on the issues raised in this Court’s grant order — whether restitution is a criminal penalty and whether, in light of post-Gahan precedent, Michigan’s statutory restitution scheme is unconstitutional insofar as it permits a trial court to order restitution based on uncharged conduct. Further, although one litigant made a single, conclusory comment at oral argument regarding Gahan’s interpretation of the statutory language, in my view, that does not substitute for full briefing on the actual substance of Gahan’s statutory analysis from both of the parties in this case.
Finally, the majority is correct that I do not reach the constitutional issue on which this Court granted leave to appeal, but it is not because, as the majority suggests, a “constitutional hurdle prove[d] unresolvable to [this] dissent.” Instead, it is precisely because Gahan was correctly decided that I believe that this Court should address the issues upon which it granted leave to appeal, rather than overruling a longstanding and coi'rect determination of the Legislature’s intent in enacting the Crime Victim’s Rights Act. Nevertheless, because my position has not garnered majority support, I decline to opine on those issues.
It requires no citation to authority to note that the vast majority of convictions in this state result from guilty pleas, many of which are the result of plea negotiations when a prosecutor offers to dismiss some charges if a defendant agrees to plead guilty to others. In light of crime victims’ constitutional right to restitution, see Const 1963, art 1, § 24, only time will tell the impact of the majority opinion on prosecutorial charging decisions, plea negotiations, and trials.