PEOPLE OF MI V GEORGE EDWARD DUNSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 4, 1997
Plaintiff-Appellee,
v
No. 192399
GEORGE EDWARD DUNSON,
Genesee Circuit Court
LC No. 93-48127 FC
Defendant-Appellant.
Before: Gribbs, P.J., and Holbrook, Jr., and J.L. Martlew,* JJ.
PER CURIAM.
In 1993, defendant pleaded guilty of assault with intent to rob while armed, MCL 750.89;
MSA 28.284, and of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. He
was sentenced to serve fifteen to thirty years in prison and ordered to pay restitution of $21,669.10 to
certain insurance companies who had compensated victims of defendant’s criminal offense. He
appealed as of right and this Court affirmed defendant’s convictions and prison sentence but remanded
the matter to the trial court “for a redetermination of restitution in light of all the relevant factors” in the
Crime Victim’s Rights Act, MCL 780.767; MSA 28.1287(767), including his financial needs and ability
to pay. People v Dunson, unpublished memorandum opinion of the Court of Appeals (Docket No.
164483, rel’d 12/9/94). On remand, the trial court ordered defendant to pay twenty percent of his net
weekly income while in prison toward the full restitution amount of $21,669.10. He again appeals as of
right and we affirm.
Defendant first argues that the order of restitution to the insurance companies was not supported
by any “interest of justice,” as required by the pre-amendment language of MCL 780.766(10); MSA
28.1287(766)(10). Even assuming that defendant is correct that the amended version of § 16(10) of
the CVRA—which deleted the “interest of justice” language—is inapplicable to this matter because the
amendment did not become effective until January 10, 1994, we are persuaded that the violent and
damaging nature of defendant’s offense provides ample justification for the restitution order. Cf. People
v Gourd, 200 Mich App 493, 496; 504 NW2d 699 (1993) (no “special facts” present to justify
restitution to insurance company). As a consequence, defendant’s prior appellate counsel was not
* Circuit judge, sitting on the Court of Appeals by assignment.
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ineffective for failing to raise this issue at the remand hearing. See People v Pickens, 446 Mich 298;
521 NW2d 797 (1994).
Defendant next argues that the restitution order be vacated because the trial court failed on
remand to address the relevant statutory factors, including financial dependents and ability to pay. On
remand, the parties expressly stipulated to the court’s use of the facts set forth in the original and
updated presentence investigation reports. The original report indicated that defendant was single and
the father of a then five-year-old son, who at that time was supported by ADC provided to the mother.
Defendant did not pay child support for his son. The updated report indicated that defendant was
gainfully employed in the prison laundry and was earning approximately $60 to $70 a month.
Defendant’s appellate counsel argued to the court that, based on defendant’s limited prison
income, he had “a minimal ability to pay restitution.” The prosecutor argued that there was “no debate
over the amount of restitution,” but simply defendant’s ability to pay in light of his lengthy prison
sentence. The prosecutor recommended that defendant be ordered “to pay an appropriate amount
percentage [sic] of his earnings” while in prison. The court ordered defendant to “pay twenty percent
of his net weekly income toward restitution” and further ordered this financial obligation to cease upon
his release from the jurisdiction of the Department of Corrections. The court reasoned that this amount
was comparable to child support for one dependent.
Although defendant argues that the full restitution of $21,669.10 was excessive, we note that
Mr. Herbert Kellow—the man who was held at knife point by defendant—indicated to the presentence
investigator that his insurance company reimbursed him only $15,000 for his van for which he had paid
$28,000. Mr. Kellow further indicated that he was unable to afford a new van, similar to the one
totaled in the accident, because the cost had increased to $39,000. Thus, it appears to us that
defendant’s primary victim—Mr. Kellow—will continue to suffer financially, without recourse, as a
result of defendant’s criminal act. Given these circumstances, we conclude that the court adequately
considered the relevant factors and that the restitution order does not impose an undue hardship on
defendant.
Finally, defendant argues that because he was sentenced to serve a prison term and to pay
restitution his right not to be placed in double jeopardy, i.e., multiple punishments imposed for a single
offense, was violated. We find no merit to this argument. The order of restitution was intended to
compensate the victims for loss, not to punish defendant. See United States v Halper, 490 US 435;
104 L Ed 2d 487; 109 S Ct 1892 (1989) (addressing the distinction between a statutory civil penalty
imposed as “punishment” or as compensation for victim’s loss).
Affirmed.
/s/ Roman S. Gribbs
/s/ Donald E. Holbrook, Jr.
/s/ Jeffrey L. Martlew
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