PEOPLE OF MI V DOUGLAS DON BARBOUR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 20, 2011
Plaintiff-Appellee,
v
No. 295079
Cass Circuit Court
LC No. 09-010005-FH
DOUGLAS DON BARBOUR,
Defendant-Appellant.
Before: SAWYER, P.J., and WHITBECK and WILDER, JJ.
PER CURIAM.
Defendant Douglas Barbour appeals as of right his jury conviction of four counts of
receiving and concealing stolen firearms,1 conspiracy to break and enter an unoccupied
building,2 attempted breaking and entering of an unoccupied building,3 conspiracy to receive and
conceal stolen property valued at more than $1,000 but less than $20,000,4 receiving and
concealing stolen property valued at more than $1,000 but less than $20,000,5 four counts of
possession of a firearm during the commission of a felony (felony firearm),6 delivery of
methamphetamine,7 conspiracy to deliver methamphetamine,8 and unlawful use of a registration
plate.9
1
MCL 750.535b(2).
2
MCL 750.157a(a) and MCL 750.110(1).
3
MCL 750.92 and MCL 750.110(1).
4
MCL 750.157a(a) and MCL 750.535(3)(a).
5
MCL 750.535(3)(a).
6
MCL 750.227b.
7
MCL 333.7401(2)(b)(i).
8
MCL 750.157a(a) and MCL 333.7401(2)(b)(i).
9
MCL 257.256(1).
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The trial court sentenced Barbour to 23 months to 10 years in prison for the four counts
of receiving and concealing stolen firearms, and conspiracy to break and enter an unoccupied
building; 23 months to 5 years in prison for attempted breaking and entering of an unoccupied
building, conspiracy to receive and conceal stolen property valued at more than $1,000 but less
than $20,000, and receiving and concealing stolen property valued at more than $1,000 but less
than $20,000; and 4 to 20 years in prison for delivery of methamphetamine and conspiracy to
deliver methamphetamine. The trial court ordered that Barbour serve those sentences
consecutive to one of the felony-firearm convictions, but concurrent to the remaining three
felony-firearm convictions. The trial court further ordered Barbour to pay costs for his unlawful
use of a registration plate conviction. Finally, the trial court ordered Barbour to pay restitution in
the amount of $138,751.12. We affirm.
I. FACTS
In September 2006, Joseph Dvorak filed a breaking and entering complaint with the Cass
County Sheriff’s Department. The complaint stemmed from numerous break-ins that occurred
on his mother’s property, where he stored equipment and tools related to his roofing business.
At trial, Dvorak explained that he estimated that his mother’s home and outbuildings had been
broken into 17 times. The first time he learned of a break-in was in approximately January 2004
when his mother was hospitalized and dying. Dvorak called the police that time, but he admitted
that he did not call the police every time. Instead, Dvorak attempted to secure his mother’s home
and outbuildings. Despite his efforts, the break-ins continued. Dvorak filed another complaint
in October 2006; a window had been broken, but Dvorak could not tell what was taken.
In January 2007, Bernadette and Thomas Calkins reported that their home had been
broken into and that nine guns were taken. Also in January 2007, Dvorak filed another
complaint. The back door of his mother’s house has been kicked in.
In February 2007, Barbour was arrested near the scene of another break-in and, as a
result, police executed a search warrant at Barbour’s house. Ninety-nine tools were recovered,
including some that belonged to Dvorak. Dvorak also identified several other items found in
Barbour’s home as items taken from his mother’s home. In Barbour’s garage, police found four
of the Calkins’ firearms.
Because of Barbour’s involvement in numerous break-ins and other extensive criminal
dealings, which need not be detailed here, the jury convicted him as stated previously. Prior to
sentencing, the Calkins and Dvorak submitted victim impact statements that were included in the
presentence report. Dvorak calculated his losses to be worth $133,229. The Calkins valued their
losses to be worth $5,522.12. Accordingly, the trial court ordered that Barbour pay restitution in
the amount of $138,751.12. Barbour now appeals.
II. RESTITUTION AMOUNT
A. STANDARD OF REVIEW
Barbour argues that the trial court abused its discretion when it ordered an arbitrary
amount of restitution by accepting two of the victims’ requested amounts, when the amounts
were excessive on their face, and the trial court failed to seek the probation officer’s review or
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recommendation or conduct a restitution hearing. This Court generally reviews a trial court’s
order of restitution for an abuse of discretion.10
B. ANALYSIS
As stated, the general rule regarding the standard of review for an order of restitution is
abuse of discretion. However, absent a defendant’s timely objection to the amount of restitution,
a trial court is “not required to hold a separate hearing or to make express findings on the record
in respect to the amount of restitution[.]”11 “A judge is entitled to rely on the information in the
presentence report, which is presumed to be accurate unless the defendant effectively challenges
the accuracy of the factual information.”12 Further, when a defendant fails to object and request
an evidentiary hearing to determine the proper amount of restitution, a trial court is not required
to order such a hearing sua sponte.13
Here, Barbour did not object to the amount of claimed losses, he did not request a hearing
on the issue, and he did not offer any information or evidence to support any other figure
contrary to the amount of restitution claimed and imposed. Thus, Barbour’s failure to challenge
the amount of restitution constitutes a waiver of his opportunity for an evidentiary hearing.14
In reaching its decision, the trial court properly relied on the information in the
presentence report to determine the amount of restitution. Accordingly, we hold that the trial
court did not err in determining the amount of restitution.
III. EFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARD OF REVIEW
Barbour argues that defense counsel was ineffective for failing to challenge the restitution
amount and failing to request a restitution hearing. Because it is unpreserved, we will consider
Barbour’s claim only to the extent that defense counsel’s claimed mistakes are apparent on the
record.15
To prove a claim of ineffective assistance of counsel, a defendant must show (1) that
counsel’s performance was deficient to the extent that it fell below an objective standard of
reasonableness under prevailing professional norms, and (2) that counsel’s deficient performance
10
People v Bell, 276 Mich App 342, 345; 741 NW2d 57 (2007).
11
People v Grant, 455 Mich 221, 244; 565 NW2d 389 (1997).
12
Id. at 233-234; see also People v Gahan, 456 Mich 264, 276 n 17; 571 NW2d 503 (1997).
13
Gahan, 456 Mich at 276 n 17.
14
Id. at 276.
15
People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).
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so prejudiced the defendant that it deprived him of a fair trial, i.e., that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.16 In proving these elements, the defendant must overcome a strong presumption
that defense counsel’s performance constituted sound trial strategy.17
B. ANALYSIS
While an attorney’s failure to object to an order of restitution could amount to deficient
performance, Barbour has failed to offer any argument to counter the strong presumption in
favor of defense counsel’s conduct as being a matter of strategy. Barbour contends that the
amount of restitution was excessive. However, it is just as likely that defense counsel chose not
to challenge the amount in the hope that no additional amounts of restitution would be ordered.
Moreover, Barbour contends that he cannot show that his counsel’s alleged deficient
performance was prejudicial because he “is now in no position to require evidence and
documentation from the victims to show and prove their restitution entitlements.” However, in
submitting their claims, the Calkins submitted a victim impact statement, receipts, and insurance
information. To support his claim, Dvorak submitted a detailed, itemized list of his losses. Yet,
despite the availability of this information, Barbour has provided nothing to challenge any of
these amounts directly. Therefore, Barbour has failed to meet his burden of showing that his
counsel’s failure to object to the amount of restitution prejudiced him.
We affirm.
/s/ David H. Sawyer
/s/ William C. Whitbeck
/s/ Kurtis T. Wilder
16
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v
Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994).
17
People v Riley, 468 Mich 135, 140; 659 NW2d 611 (2003).
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