People of Michigan v. Peter Winthrop Fox

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 14, 2015
Plaintiff-Appellee,
v No. 320625
Eaton Circuit Court
PETER WINTHROP FOX, LC No. 08-020081-FH
Defendant-Appellant.
Before: OWENS, P.J., and JANSEN and MURRAY, JJ.
PER CURIAM.
Defendant appeals as of right1 the trial court’s imposition of 30 days in jail after a
determination that he violated the terms of his probation. We affirm.
A jury convicted defendant of larceny by conversion in December 2010, and he was
sentenced to 10 days in jail and 60 months on probation. People v Fox, unpublished opinion per
curiam of the Court of Appeals, issued August 16, 2012 (Docket No. 305200). On appeal, this
Court upheld defendant’s conviction. Id. After the judgment of sentence was entered and prior
to filing his claim of appeal in the case at hand, the trial court held a restitution hearing and
concluded defendant owed the victim $20,916. As a credit towards that sum, defendant agreed
to sign the title to his 1997 Cadillac over to the victim. After several hearings, the trial court
found defendant in contempt for failure to comply. The trial court extended defendant’s
probation and sentenced him to 30 days in jail. Defendant now challenges the contempt finding.
Probation revocation is a two-step process: the trial court makes a factual determination
concerning whether a defendant violated probation, then determines whether the violation
warrants revoking probation. MCR 6.455(E) and (G); People v Pillar, 233 Mich App 267, 269;
590 NW2d 622 (1998). We generally review de novo claims concerning the sufficiency of the
evidence in a criminal proceeding. People v Kanaan, 278 Mich App 594, 618; 751 NW2d 57
(2008). A trial court’s determination that a defendant violated probation must be based on facts
1
Because the trial court did not revoke defendant’s probation, defendant was not entitled to an
appeal as of right. MCR 7.202(6)(b)(v). However, in the interest of judicial economy, we treat
the claim of appeal as an application for leave to appeal, which we grant. MCR 7.216(A)(7).
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in the record. People v Breeding, 284 Mich App 471, 487; 772 NW2d 810 (2009). We review
the evidence in a light most favorable to the prosecution to determine whether a rational trier of
fact could find that the prosecution proved that the defendant violated his or her probation by a
preponderance of the evidence. Id. “Where resolution of a factual issue turns on the credibility
of witnesses or the weight of evidence, deference is given to the trial court’s resolution of these
issues.” Id. (citation omitted).
On appeal, defendant asserts that because the title was mailed to his probation agent Todd
Brunner on November 26, 2013, and defendant paid the $469.59 for car repairs when ordered to
do so by the trial court, there was no probation violation. However, the evidence supports the
trial court’s finding that defendant had failed to mail the title when required and only did so after
a contempt hearing was scheduled. That title was ultimately mailed and received by Brunner is
irrelevant; the condition of probation was “You must sign the title of the 1997 Cadillac over to”
the victim’s estate. MCL 257.233(8) provides as follows:
The owner shall indorse on the certificate of title as required by the
secretary of state an assignment of the title with warranty of title in the form
printed on the certificate with a statement of all security interests in the vehicle or
in accessories on the vehicle and deliver or cause the certificate to be mailed or
delivered to the purchaser or transferee at the time of the delivery to the purchaser
or transferee of the vehicle. The certificate shall show the payment or satisfaction
of any security interest as shown on the original title.
The evidence from the hearing also supports the trial court’s findings that defendant
failed to enter a selling date or selling price, which prevented legal assignment of the title to
occur. Accordingly, more than four months after the court ordered defendant to transfer title to
the victim’s estate, defendant still had not complied with the probationary term. Taking the
evidence in the light most favorable to the prosecution, the trial court did not err in concluding
that defendant violated his probation.
Affirmed.
/s/ Donald S. Owens
/s/ Kathleen Jansen
/s/ Christopher M. Murray
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