People v. Corbin ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
September 22, 2015
Plaintiff-Appellee, 9:05 a.m.
v No. 319122
Leelanau Trial Court
JEFFRY LEWIS CORBIN, LC No. 11-001747-FH
Defendant-Appellant.
Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ.
GLEICHER, J.
The prosecution charged that defendant sexually abused two young brothers. Both
victims are now adults; we refer to them pseudonymously as Shane and Austin. Defendant
pleaded guilty to the charged conduct involving Shane. The prosecutor dismissed a single count
involving Austin. The trial court sentenced defendant to prison and ordered him to pay $276,800
in restitution to Austin, and $276,985 to Shane. Defendant challenges only the restitution order.
We conclude that the restitution awards cannot stand. Because defendant’s illegal acts
involving Austin did not give rise to defendant’s convictions, Austin is not entitled to any
restitution. Shane’s restitution award, too, must be vacated, as the evidence provided no
reasonable factual basis for substantial components of the total. Accordingly, we vacate most of
the restitution order and remand for further proceedings.
I.
Austin and Shane were born in 1989 and 1991, respectively. They resided in Kansas City
with their mother and father until 1992, when the parents separated. The parents’ divorce
finalized in 1994, and the brothers moved with their mother to Traverse City. Their father
relocated to Belgium a year later and remained overseas until 2000, when he returned to Kansas
City.
Defendant and his wife lived in Traverse City and were close friends of the brothers’
mother. Shane described defendant as a quasi-father figure. As boys, the brothers frequently
visited defendant’s home. Defendant repeatedly assaulted them there, and on cross-country
skiing trips in Canada, between 1995 and 2005. Shane disclosed the abuse in January 2011.
When interviewed by the police, defendant admitted to having engaged in sexual contact with
both brothers.
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The felony information set forth three counts of second-degree criminal sexual conduct
(CSC) involving Shane, and one count involving Austin. At defendant’s guilty plea hearing, the
prosecutor conceded that the statute of limitations had run on the allegations concerning Austin
and voluntarily dismissed that charge. When tendering his guilty plea, defendant nevertheless
admitted to having engaged in criminal sexual conduct with Austin.
The trial court imposed an upward departure sentence of 9 to 15 years’ imprisonment and
subsequently convened a restitution hearing. At the hearing, the victims’ father conceded that he
had been physically separated from his sons during an approximately six-year period, but denied
that he had been meaningfully absent from their lives. He detailed the expenditures he attributed
to their sexual abuse. The father recounted that he incurred “roughly $4000” in therapy charges
for both victims, and provided an “estimate” of the costs incurred for their medications as “about
a thousand dollars.” Shane had failed his first year of college due to the trauma of the abuse, the
father asserted, resulting in a separate financial loss of “[a]pproximately $20,000.” Both sons
lost income, the father claimed, because the pending court proceedings rendered them unable to
accept job offers at two affiliated ice cream shops that would have paid each $400 weekly. The
father elucidated: “They were really in no condition to take on a role of management in a time
consuming process we were going through at the time with this.”
The victims described the psychological trauma caused by the assaults and the difficulties
they have endured in trying to lead normal lives. Shane explained that he has been diagnosed
with post-traumatic stress disorder (PTSD), which causes flashbacks and nightmares. He agreed
with the prosecutor that the PTSD “affected” his ability to be successful in college, and
“interfered with” his ability to obtain gainful employment. Austin, too, suffers from PTSD. He
completed only one year of college before deciding that he was emotionally unable to continue
attending classes.
Beginning in 2011, both victims have engaged in psychological counseling with Mark
McGonigle, a licensed clinical social worker in Missouri. McGonigle has an undergraduate
degree in psychology from the University of Dallas, a master’s degree in “social welfare” from
the University of Kansas, and a master’s degree in “applied spirituality” from the University of
San Francisco. Defendant’s counsel stipulated to McGonigle’s qualifications to testify as an
expert witness in “the area of PTSD.” McGonigle served as the prosecution’s sole witness
regarding the victims’ need for therapy and the projected costs of their care.
McGonigle characterized PTSD as “an anxiety disorder” that produces “a chronic
reaction to traumatic events that kind of creates its own syndrome of emotional, mental and
behavioral problems.” To qualify for the diagnosis, an individual must “have a significant
impairment in functioning both inner [sic] personal, social, occupational or other important areas
of functioning.” In McGonigle’s view, Shane “had both major depression that was recurrent in
his life and post-traumatic stress disorder.” McGonigle attributed the cause of Shane’s PTSD to
“the sexual abuse he experienced from [defendant], and that was also a major factor in his
depression.” Austin shares the PTSD diagnosis and its cause with Shane; McGonigle did not
diagnose him as suffering from major depression “because he hasn’t shown those symptoms.”
McGonigle testified that although his contact with Shane had been “somewhat sporadic,”
they “developed a treatment plan for treatment of PTSD. . . . I was expecting kind of a long
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course of treatment with possible referral to in-patient intensive therapy as needed.” In a written
report admitted as evidence during the hearing, McGonigle expressed that the brothers “will
likely need therapy for a period of many years and likely intermittently over the course of their
lives, especially as they mature into men of marital age.” The cost of that therapy, he elaborated,
would depend “on the individual therapist’s fee structure, [and] will likely cost approximately
$14,000-18,000 per year.” “To be secure,” he continued, “and given their young ages, I think
they should plan to receive at least 8-10 years of such treatment.”
McGonigle explained that the “intensive inpatient treatment” he recommended could
occur at a facility such as The Meadows in Arizona, which charges “approximately $42,000” for
a stay of four to six weeks. The brothers’ projected future “psychiatric care” and medication
costs, McGonigle predicted, would range from $3,000 to $5,000 each year. McGonigle’s report,
admitted as an exhibit by the trial court, indicates that Shane had paid $1,785 “[t]o date” for his
therapy.1
In a bench opinion, the trial court awarded both victims $15,000 a year in outpatient
therapy costs for eight years, totaling $120,000 per person. The trial court found that both
victims were also entitled to the costs of inpatient admissions at The Meadows, which the court
estimated as $42,000 each. The court adopted McGonigle’s cost estimates for medication and
psychiatric services of $40,000 for each victim, and further granted each brother $31,200 in “lost
wages,” yielding a total of $275,200 each. The court then added to that sum the amounts already
paid for treatment: $1,600 for Austin, and $1,785 for Shane.
Defendant sought delayed leave to appeal the restitution order. This Court denied the
application “for lack of merit in the grounds presented.” People v Corbin, unpublished order of
the Court of Appeals, entered April 25, 2014 (Docket No. 319122). Defendant then sought leave
to appeal in the Supreme Court, and moved to add issues for that Court’s consideration. The
Supreme Court granted the motion to add issues and, in lieu of granting leave to appeal,
remanded the case to this Court for consideration as on leave granted. People v Corbin, 497
Mich. 886; 854 NW2d 881 (2014).
II.
The William Van Regenmorter Crime Victim’s Rights Act (CVRA), MCL 780.751 et
seq., mandates that a sentencing court order convicted defendants to make “full restitution to any
victim of defendant’s course of conduct that gives rise to the conviction[.]” MCL 780.766(2). A
“victim” is “an individual who suffers direct or threatened physical, financial, or emotional harm
as a result of the commission of a crime.” MCL 780.766(1). Under the CVRA, restitution is
1
McGonigle’s treatment records, admitted as an exhibit at the restitution hearing, reflect 12
visits with Shane in 2011, and none in 2012. McGonigle testified that he had approximately four
sessions with Shane in 2013 that he had not yet documented. Assuming that he had also not
billed for the 2013 sessions, we calculate that McGonigle charged $148.75 for each session. At a
similar rate, $15,000 a year would yield approximately 100 therapy visits.
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available to compensate victims for losses associated with either physical or psychological
injury. An order of restitution may compel a defendant to:
(a) Pay an amount equal to the reasonably determined cost of medical and related
professional services and devices actually incurred and reasonably expected to be
incurred relating to physical and psychological care.
***
(c) Reimburse the victim or the victim’s estate for after-tax income loss suffered
by the victim as a result of the crime. [MCL 780.766(4).]
Michigan’s general restitution statute, MCL 769.1a, defines “victim” in essentially the
same fashion, clarifying that the term reaches individuals harmed “as a result of the commission
of a felony, misdemeanor, or ordinance violation.” MCL 769.1a(1)(b). Like the CVRA, the
general restitution statute demands that a sentencing court order restitution when appropriate.
MCL 769.1a(2). The language differs, however, regarding restitution for the costs of medical or
psychological care:
(4) If a felony, misdemeanor, or ordinance violation results in physical or
psychological injury to a victim, the order of restitution may require that the
defendant do 1 or more of the following, as applicable:
(a) Pay an amount equal to the cost of actual medical and related
professional services and devices relating to physical and psychological
care. [MCL 769.1a.]
Unlike the CVRA, the general restitution statute permits restitution only for “actual medical and
related professional services.” (Emphasis added.) Both statutes allow a victim to recover “after-
tax income loss suffered . . . as a result of” the “crime,” MCL 780.766(4)(c), or the “felony,”
MCL 769.1a(4)(c).
The CVRA provides that the prosecution has the burden of proving by a preponderance
of the evidence the amount of the victim’s loss. MCL 780.767(4). “MCL 780.766(2) requires a
direct, causal relationship between the conduct underlying the convicted offense and the amount
of restitution to be awarded.” People v McKinley, 496 Mich. 410, 421; 852 NW2d 770 (2014).
This Court has held that court-ordered restitution is not a substitute for civil damages. People v
Tyler, 188 Mich. App. 83, 89-90; 468 NW2d 537 (1991). Nor is restitution properly awarded for
losses paid by insurance. People v Dimoski, 286 Mich. App. 474, 480-481; 780 NW2d 896
(2009).
“The proper application of . . . statutes authorizing the assessment of restitution at
sentencing is a matter of statutory interpretation, which we review de novo.” McKinley, 496
Mich. at 414-415. We review a court’s calculation of a restitution amount for an abuse of
discretion, People v Gubachy, 272 Mich. App. 706, 708-709; 728 NW2d 891 (2006), and its
factual findings for clear error, People v Fawaz, 299 Mich. App. 55, 64; 829 NW2d 259 (2012).
A trial court may abuse its discretion by blurring the distinction between a civil remedy for
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damages and the criminal penalty of restitution. People v Orweller, 197 Mich. App. 136, 140;
494 NW2d 753 (1992).
III.
We first address a question raised in defendant’s “motion to add issues,” which the
Supreme Court granted in the order remanding the case to this Court for consideration as on
leave granted. In that motion, defendant adopted the issues presented by the defendant in
McKinley, 496 Mich. 410, which included that Michigan’s statutory restitution scheme cannot
withstand constitutional scrutiny because it permits restitution based on uncharged conduct never
submitted to a jury. In McKinley, the Supreme Court declined to reach this constitutional
question, invoking the “venerable rule of constitutional avoidance.” Id. at 415-416. Rather, the
Court focused on the plain language of MCL 780.766(2), which provides that “full restitution”
may be authorized only for “any victim of the defendant’s course of conduct that gives rise to the
conviction . . . . ” Id. at 419 (emphasis and ellipsis in original). By consulting a dictionary, the
Supreme Court determined that the phrase “gives rise to” means “to produce or cause.” Id. The
Court concluded: “Only crimes for which a defendant is charged ‘cause’ or ‘give rise to’ the
conviction. Thus, the statute ties ‘the defendant’s course of conduct’ to the convicted offenses
and requires as causal link between them.” Id. In reaching this result, the Court overruled its
prior decision in People v Gahan, 456 Mich. 264; 571 NW2d 503 (1997), which had governed
the trial court’s restitution decision in this case.
Given the Supreme Court’s order that we consider the issues raised in defendant’s
motion, we must address whether the trial court appropriately awarded restitution to Austin.
Defendant was not convicted of CSC involving Austin. Accordingly, McKinley dictates that his
abuse of Austin “may not be relied on as a basis for assessing restitution[.]” Id. at 419. Because
the trial court lacked any authority to award restitution for defendant’s uncharged conduct, we
vacate the entirety of Austin’s restitution award. In the remainder of this opinion, we therefore
need only address the restitution awarded to Shane.
IV.
Defendant contends that the restitution amounts allocated for Shane’s future medical and
psychological treatment and “lost wages” were not authorized by MCL 780.766. The evidence
supporting these awards, defendant asserts, was entirely speculative, and did not represent
“easily ascertainable” or “measurable” losses.
Throughout the last four decades, this Court has repeatedly declared that restitution may
encompass only those losses that are “easily ascertained and . . . a direct result of a defendant’s
criminal conduct.” Gubacy, 272 Mich. App. at 708; see also Tyler, 188 Mich. App. at 89; People v
Pettit, 88 Mich. App. 203; 276 NW2d 878 (1979). This oft-invoked rule was first established in
People v Heil, 79 Mich. App. 739; 262 NW2d 895 (1977), which involved the propriety of a
restitution order imposed as a condition of the defendant’s probation. In Heil, a jury convicted
the defendant of manslaughter arising from a car accident. The trial court imposed a probation
sentence conditioned on “payment within 90 days of $3,000 to the victim’s wife, and,
additionally, payment of one half of defendant’s after-tax income throughout the probation
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period.” Id. at 741. When the defendant failed to make the payments, the trial court revoked his
probation. Id.
On appeal, the defendant argued that the damages encompassed by the restitution award
“have never been measured” and that the record lacked a factual basis for the computation of the
sum. Id. at 748. This Court agreed, characterizing the “reparational amounts ordered paid” as
“essentially arbitrary.” Id. Moreover, the Court reasoned,
[t]he probation statute does not create a substitute for an action for civil damages.
Criminal and civil liability are not synonymous. A criminal conviction does not
necessarily establish the existence of civil liability. Civil liability need not be
established as a prerequisite to the requirement of restitution as a probation
condition; such restitution for personal injury, therefore, generally should be more
limited in scope than civil damages. In the instant case we believe that restitution
should encompass only those losses which are easily ascertained and measured,
and which are a direct result of the defendant’s criminal acts. [Id. at 748-749.]
Because the record failed to elucidate the “purpose of the payments” and “the manner in which
they were determined,” this Court reversed the order of probation revocation. Id. at 749. Post-
Heil, this Court has frequently echoed that restitution awards must be rooted in damages that are
“easily ascertained and measured, and which are a direct result of the defendant’s criminal acts.”
We discern no rational basis for continuing to embrace Heil’s “easily ascertained and
measured” formulation, as the Heil court operated in an entirely different (and no longer
pertinent) statutory milieu. The probation statute then in effect, MCL 771.3, permitted the
sentencing court to “impose such other lawful conditions of probation, including 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.” In Heil, the Court
constructed a policy-driven limitation on the breadth of restitution orders imposed as conditions
of probation. Here, however, we confront specific statutory language that displaces any need for
policy analysis.
First enacted in 1985, the CVRA incorporates several highly specific provisions
addressing restitution. Its central, “extensive” restitution section, MCL 780.766, permits
recovery of “the costs of physical and occupational therapy, as well as the cost of psychological
care for the victim and the victim’s family, which at the time was not an ordinary part of
restitution.” Van Regenmorter, Crime Victims’ Rights—A Legislative Perspective, 17
Pepperdine L Rev 59, 67 (1989). The statute’s current version authorizes sentencing courts to
order payment of “an amount equal to the reasonably determined cost of medical and related
professional services and devices actually incurred and reasonably expected to be incurred
relating to physical and psychological care.” MCL 780.766(4)(a).
Thus, the plain language of the CVRA instructs sentencing courts that the standard to be
applied when calculating a restitution amount is simply one of reasonableness. “Reasonably
determined” future losses (including the cost of future medical and psychological care) are
subject to restitution, provided that the court finds that such losses are “reasonably expected to be
incurred.” This language does not suggest the need for absolute precision, mathematical
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certainty, or a crystal ball. On the other hand, speculative or conjectural losses are not
“reasonably expected to be incurred.” Where the evidence provides a reasonably certain factual
foundation for a restitution amount, the statutory standard is met.2
The general restitution statute, MCL 769.1a, was also enacted in 1985. As we have
noted, it sets forth a different standard for recovery of the costs of psychological care. Under
MCL 769.1a(4)(a), an order of restitution may require a defendant to “[p]ay an amount equal to
the cost of actual medical and related professional services . . . relating to . . . psychological
care.” (Emphasis added.) Our Supreme Court has defined the word “actual” as “existing in act,
fact, or reality; real.” Omdahl v West Iron Co Bd of Ed, 478 Mich. 423, 428; 733 NW2d 380
(2007) (quotation marks and citations omitted).
The trial court properly awarded restitution for the costs of the “actual” professional
services rendered to Shane in the amount of $1,785. The more difficult question is whether the
CVRA authorizes the award rendered by the trial court for Shane’s future psychological care
expenses. While future (not yet incurred) psychological expenses indisputably fall within the
ambit of MCL 780.766(4)(a), the prosecution must demonstrate by an evidentiary preponderance
that the claimed expenses are “reasonably expected to be incurred.” Here, we find the requisite
proof sorely lacking.
In his direct testimony, McGonigle hedged as to the specifics of the therapy he proposed:
“I was expecting kind of a long course of treatment with possible referral to in-patient intensive
therapy as needed.” He was even less certain regarding the amount of money needed to address
Shane’s future psychological therapy needs. McGonigle admitted that the numbers he provided
the court were conjectural:
Q. . . . [Y]ou say they both likely have a long way to go with various
modes of therapy before they are capable of following through with their goals.
When you say they are both likely, you can’t provide opinions as to what they
need, and in terms of actually following through with their goals though?
A. Yeah.
Q. That’s correct?
A. And, I would like to comment on that if I could?
2
Although tort law principles are not necessarily controlling in the interpretation and application
of the CVRA, we find them instructive. “In Michigan, in order to recover damages on the basis
of future consequences, it is necessary for a plaintiff to demonstrate with ‘reasonable certainty’
that the future consequences will occur.” Larson v Johns-Manville Sales Corp, 427 Mich. 301,
317; 399 NW2d 1 (1986), citing Prince v Lott, 369 Mich. 606, 609; 120 NW2d 780 (1963). See
also King v Neller, 228 Mich. 15, 22; 199 N.W. 674 (1924) (“[O]nly such future damages can be
recovered as the evidence makes reasonably certain will necessarily result from the injury
sustained.”).
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Q. Absolutely.
A. I’m actually prohibited in my practice from giving people any solid
figures about how much treatment it will take to get over their problem. And,
treatment is very - - it’s really hard to get an exact amount as a prescription.
Q. I’m sorry?
A. What I think I can do is look at, and that applies to an individual, what
you can do is there is research that indicates average lengths of time that it takes
to work out certain severity of problems and how much therapy is needed and
that’s what I relied on for my report.
Q. And, that goes to your next sentence, the fourth paragraph, is that what
you’re basically saying? Well, under the circumstances it’s never proper to
predict the exact amount of therapy needed for any condition?
A. Yeah.
Q. And, so, you don’t know what needs to be reasonably expected to be
incurred, in terms of dollars?
A. Well, not in the actual amount, but I think it’s reasonable to say there’s
an average and this is what you would want available for someone facing this
particular kind of problem, you would want to shoot in the ballpark and that’s
what you could expect with the average.
Q. In your next page of that you indicate in a paragraph it’s likely these
boys may need psychiatric care. But, do I take it you have not referred them to
any psychiatrist?
A. No, I did not. I think partly because they wanted to opt for a more
therapeutic path, they weren’t really open for that notion. I think as time evolves
and as they mature and grow that could change. [Emphasis added.]
On redirect examination, the prosecuting attorney read the relevant statutory language aloud, and
inquired, “is it your opinion that these amounts you quoted are reasonably expected to be
incurred as a result of this crime in the future?” McGonigle answered affirmatively.
The trial court acknowledged that McGonigle had provided only general, one-size-fits-all
numbers, but resolved the inherent uncertainties of McGonigle’s calculations by fixing on
averages of McGonigle’s averages:
His Exhibit 3 recommends ongoing out-patient counseling treatment, that
they should be seeing a counselor twice per week and he estimates I think it was
14 to 18,000 a year. We’ll use 15,000 per year, he recommends 8 to 10 years,
we’ll go with the 8 years then. And, that at, let’s see here I said 15,000 a year
times 8 years is $120,000, that would be for each of them. We’ll deal with them
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separately, $120,000. Also he recommended 2 long-term treatment admissions to
an in-patient program and he’s got one that’s mentioned here, but I don’t think he
says that specifically has to be the one, but that’s an idea of what kind of cost it
would be, and that would be 42,000 approximately per admission, that’s described
in Exhibit 3.
McGonigle’s inability to provide the court with cost figures specific to Shane renders the
court’s estimates fatally uncertain. An informed guess as to a victim’s future psychological
therapy costs does not equate with an amount “reasonably expected to be incurred.” While we
recognize an element of uncertainty always lurks in the background when a factfinder predicts
future damages, see Hannay v Dep’t of Transp, 497 Mich. 45, 86-88; 860 NW2d 67 (2014), the
evidence presented here bore only the most tenuous connection to Shane’s needs. McGonigle
admitted that the numbers he supplied the court did not specifically apply to Shane, and did not
constitute “solid figures about how much treatment” Shane would reasonably require to heal.
Instead, McGonigle relied on “average lengths of time” regarding other, undescribed patients,
found in “research” that he failed to identify. This attenuated evidence did not suffice to
demonstrate the loss that would “reasonably expected to be incurred” by Shane rather than an
average PTSD patient.
Moreover, McGonigle did not provide the court with sufficient grounds for a reasonably
accurate restitution award predicated on the “direct” harm Shane sustained “as a result of the
commission of a crime.” MCL 780.766(1). In McKinley, 496 Mich. at 421, the Supreme Court
emphasized that “MCL 780.766(2) requires a direct, causal relationship between the conduct
underlying the convicted offense and the amount of restitution to be awarded.” As noted by our
Supreme Court in McKinley, Michigan’s restitution statute instructs a sentencing court to
consider “the amount of loss sustained by any victim as a result of the offense.” Id., quoting
MCL 780.767(1) (emphasis in original). The phrase “as a result of” contemplates factual
causation. See People v Laidler, 491 Mich. 339, 344-345; 817 NW2d 517 (2012). “The concept
of factual causation is relatively straightforward. In determining whether a defendant’s conduct
is a factual cause of the result, one must ask, ‘but for’ the defendant’s conduct, would the result
have occurred?” People v Schaefer, 473 Mich. 418, 435-436; 703 NW2d 774 (2005) (citations
omitted), overruled in part on other grounds, People v Derror, 475 Mich. 316; 715 NW2d 822
(2006). “Proximate cause”, too, “is a standard aspect of causation in criminal law and the law of
torts.” Paroline v United States, 572 US__; 134 S. Ct. 1710, 1720; 188 L. Ed. 2d 714 (2014). “For
a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a ‘direct
and natural result’ of the defendant’s actions.” Schaefer, 473 Mich. at 436 (citations omitted).
The CVRA, we conclude, permits an award only for losses factually and proximately caused by
the defendant’s offense; nothing in the text or structure of the statute suggests otherwise.
The record contains no evidence that defendant’s conduct caused the specific future loss
awarded by the trial court. Perhaps Shane will require precisely the amount of therapy that the
trial court awarded. On this record, however, we have no basis for drawing a reasonable
conclusion that likely he will, as the only guidance on that score was provided by McGonigle,
who admitted that he was “actually prohibited . . . from giving people any solid figures about
how much treatment it will take to get over their problem.” Thus, we perceive no direct
relationship between the psychological consequences of defendant’s criminal acts toward Shane
and the amount of restitution awarded. While Shane is entitled to restitution for future
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psychological therapy expenses that he should reasonably expect to incur as a direct result of
defendant’s criminal acts, “[r]estitution is not intended to provide a windfall for crime victims
but rather to ensure that victims, to the greatest extend possible, are made whole for their losses.”
United States v Huff, 609 F3d 1240, 1249 (CA 11, 2010) (quotation marks and citation omitted).
McGonigle’s testimony did not inform the trial court what it would take to make Shane (as
opposed to any average sexual abuse victim) whole. His “ballpark” estimate may have been the
best that he could offer as a licensed social worker, but no evidence suggests that a more certain
estimate, predicated specifically on Shane’s condition and likely future needs, was otherwise
impossible to procure.
Even less evidence substantiated the trial court’s $31,200 award for Shane’s “lost
wages.” The CVRA provides for restitution of “after-tax income loss suffered by the victim as a
result of the crime.” The victims’ father testified that both young men had been offered summer
positions in Traverse City paying $400 per week (we assume pre-tax), which they had been
unable to accept due to the pending court proceedings. The trial court assumed that $400
represented “the amount they could have made in the market,” and that they would have worked
continuously throughout the summer and for the next 78 weeks, when both obtained work in
Kansas City. But lost earning capacity is not the same as “income loss.”
Unfortunately, the CVRA does not provide a definition of the term “income loss.” In
filling in this gap, we look to definitions of the relevant terms. “Income” is “[t]he return in
money from one’s business, labor, or capital invested; gains, profits, salary, wages, etc.” Black’s
Law Dictionary (6th ed), p 763. Here, Shane never had an “income” that defendant’s conduct
caused him to lose. Even assuming that Shane’s loss of the ability to earn income at the ice
cream store correlates to “income loss,” the court made no effort to calculate after-tax income
loss, as required by the statute. Furthermore, no evidence suggested that the brothers lacked the
ability to earn wages for a full 78 weeks.
In summary, we vacate the trial court’s order awarding Shane restitution for future
therapy costs, future medication expenses, future psychiatric services, and “lost wages.” The
sums awarded for these categories of loss were not “reasonably determined,” and do not
correspond to the amounts “reasonably expected to be incurred” by Shane relating to future
psychological care or after-tax income loss. We remand for correction of the order to reflect the
amount paid for psychological therapy, $1,785. Should the prosecution elect to present
additional testimony, the court may conduct a new restitution hearing.
V.
We now turn to the remaining issue that the Supreme Court ordered added for
consideration when it remanded the case to this Court. Citing Apprendi v New Jersey, 530 U.S.
466; 120 S. Ct. 2348; 147 L. Ed. 2d 435 (2000), Southern Union Co v United States, __ US __; 132
S. Ct. 2344; 183 L. Ed. 2d 318 (2012), and Alleyne v United States, __ US __; 133 S. Ct. 2151; 186
L. Ed. 2d 314 (2013), defendant contends that because restitution is a form of punishment, the
Sixth Amendment requires that a jury rather than a sentencing court determine the amount owed.
Many other courts have considered the same argument. None have resolved this challenge in the
manner defendant urges. We decline the opportunity to break new legal ground.
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In Southern Union, 132 S. Ct. at 2348-2349, the United States Supreme Court held that the
amount of a criminal fine imposed as part of a defendant’s sentence must be determined by a
jury. The Supreme Court’s opinion in Apprendi dictated this result, the Court explained, as
“Apprendi’s ‘core concern’ is to reserve to the jury ‘the determination of facts that warrant
punishment for a specific statutory offense.’” Id. at 2350. A criminal fine and restitution are not
synonymous, however. A plethora of federal circuit courts of appeal have held that “judicial
factfinding to determine the appropriate amount of restitution under a statute that does not
prescribe a maximum does not implicate a defendant’s Sixth Amendment rights.” United States
v Bengis, 783 F3d 407, 413 (CA 2, 2015) (citing cases from three other circuits). A few other
circuits have rejected defendant’s argument based on a conclusion that restitution is a civil rather
than a criminal penalty, negating Apprendi’s relevance. United States v Kieffer, 596 Fed Appx
653, 664 (CA 10, 2014) (citing additional cases). Still other courts consider restitution a criminal
penalty but have nonetheless concluded that the Sixth Amendment erects no obstacle to judicial
fact-finding as to the amount owed:
Restitution is, at its essence, a restorative remedy that compensates victims
for economic losses suffered as a result of a defendant’s criminal conduct. In this
sense, even though restitution is a criminal punishment, it does not transform a
defendant’s punishment into something more severe than that authorized by
pleading to, or being convicted of, the crime charged. Rather, restitution
constitutes a return to the status quo, a fiscal realignment whereby a criminal’s ill-
gotten gains are returned to their rightful owner. In these circumstances, we do
not believe that ordering a convicted defendant to return ill-gotten gains should be
construed as increasing the sentence authorized by a conviction pursuant to
Booker.[3] [United States v Leahy, 438 F3d 328, 338 (CA 3, 2006).]
We are unaware of any state or federal courts that have adopted defendant’s constitutional
argument, and find it unavailing.4
We vacate the order of restitution entered by the trial court. On remand, the prosecution
may seek leave from the trial court to conduct a second restitution hearing. Regardless of the
result of that hearing, no restitution shall be awarded to Austin. Should the prosecution elect
3
In United States v Booker, 543 U.S. 220; 125 S. Ct. 738; 160 L Ed2d 621 (2005), the United
States Supreme Court struck down the mandatory application of the federal sentencing
guidelines as violative of the Sixth Amendment.
4
We acknowledge that our Supreme Court recently decided in People v Lockridge, ___ Mich
___; ___ NW2d ___ (Docket No. 149073, decided July 29, 2015), that Apprendi as extended by
Alleyne renders Michigan’s sentencing guidelines “constitutionally deficient” to the extent they
“require judicial fact-finding beyond facts admitted by the defendant or found by the jury” to
score variables that mandate an increased floor for the minimum sentencing guidelines range.
Slip op at 1-2. Nothing in Lockridge suggests that its reasoning encompasses restitution orders
entered in conjunction with sentencing.
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against convening another hearing, the trial court shall enter an order of restitution awarding
Shane $1,785. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
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