PEOPLE OF MI V ERIC EUGENE COLEMAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 3, 2009
Plaintiff-Appellee,
v
No. 286017
Wayne Circuit Court
LC No. 08-000307-FH
ERIC EUGENE COLEMAN,
Defendant-Appellant.
Before: Shapiro, P.J., and Jansen and Beckering, JJ.
SHAPIRO, J. (concurring in part and dissenting in part).
I concur with the majority in its affirmance of defendant’s convictions and its remand for
resentencing. However, I respectfully dissent from its decision regarding restitution.
At sentencing, the assistant attorney general argued that the $31,819 listed as restitution
was in error and that the correct amount should have been $49,230. The prosecutor argued that
although defendant had been acquitted of two of the counts, the trial court could still assess
restitution as to the losses at issue in those counts. Defense counsel argued that the restitution
amounts should not include the amounts arising out of counts as to which defendant was
acquitted. The trial court ordered “that restitution be paid in an amount to be determined[] to be
correct between the amount of $31,819 and $49,230.”1 The trial court indicated that it would
assume the correct amount was $49,230 but would “allow the defense, if it requests a hearing,
and to be heard on the issue, that it should be a lower amount that be allowed.” Defense counsel
immediately requested a hearing. However, no hearing occurred.2
1
Although somewhat unclear from the record, it appears that the amounts defendant contested
were $3,760 and $14,664, for a total of $18,424, which should have made the lower amount
$30,806, rather than the $31,819 in the presentence report. Accordingly, I have used the amount
$18,424 throughout this opinion as the disputed amount. However, my use of this number
should not be read to limit the rights of either party to dispute this figure.
2
About eight months after defendant’s appeal was filed with this Court, defendant requested a
remand for an evidentiary hearing on the amount of restitution. This Court determined that it
could decide the issue based on the record already before it and denied the motion.
-1-
The majority relies on People v Gahan, 456 Mich 264, 266; 571 NW2d 503 (1997) for
the principle that restitution may be ordered as to all amounts which the trial court finds, by a
preponderance of the evidence, are attributable to the criminal scheme. I initially note that
Gahan did not deal with restitution on counts for which the defendant was acquitted, but on
counts for which defendant was never bound over. Although there may ultimately be no
difference between an uncharged count and an acquitted count, as both represent crimes for
which a defendant has not been found guilty beyond a reasonable doubt, I do not believe that
Gahan necessarily requires that leap. However, even assuming that it does, Gahan makes clear
that MCL 780.767(4):
requires that the prosecution must establish the appropriate amount of restitution
by a preponderance of the evidence. Thus, the statute affords defendant an
evidentiary hearing when the amount of restitution is contested and further
provides that the prosecution bears the burden of establishing the proper amount.
[Id. at 276.]
It is undisputed that defendant contested the amount of restitution and requested a hearing but
that the hearing did not take place. Further, the trial court never made a determination on the
record that the prosecution had shown by a preponderance of the evidence that the $18,424
which related to the counts ending in acquittal were “losses attributable to the illegal scheme that
culminated in [defendant’s] conviction” such that restitution could be ordered. Id. at 272.
Instead, the trial court stated that it simply assumed the prosecution’s position to be accurate and
did not conduct an evidentiary hearing. Our Supreme Court was clear that it was the existence of
such hearing that prevented a due process violation. Id. at 275. Therefore, I conclude that the
absence of the requested hearing in this case was a violation of defendant’s due process rights.
Accordingly, I would vacate the amount of restitution and remand for an evidentiary hearing for
the court to determine whether the prosecution has shown, by a preponderance of the evidence,
that the $18,424 which related to the counts ending in acquittal were losses attributable to the
illegal scheme that culminated in defendant’s conviction and for entry of an order of restitution
consistent with that determination.
/s/ Douglas B. Shapiro
-2-
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