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STATE APPELLATE DEFENDERLansing Office
101 North Washington, 14th Floor Lansing, Michigan 48913-0001
Phone: 517.334.6069 Fax: 517.334.6987James R. Neuhard Detroit (Main) OfficeDirector
Suite 3300 Penobscot BuildingDawn Van Hoek 645 GriswoldChief Deputy Director Detroit, Michigan 48226-4281
Detroit/Lansing Phone: 313.256.9833 Fax: 313.965.0372Client Calls: 313.256.9822
Jonathan Sacks
Deputy Director Website: www.sado.orgDetroit
July 30, 2010
ClerkMichigan Supreme Court925 West Ottawa, 4th FloorP. O. Box 30052Lansing, MI 48913
Re: People v Scott Bennett HarrisSupreme Court No.Court of Appeals No. 297182Circuit Court No. 08-56761 FH
Dear Clerk:
Enclosed please find the original and seven (7) copies of Notice of Hearing/Proof ofService and Application for Leave to Appeal for filing in your Court.
Thank you for your cooperation.
Sincerely,
Rolf E. BergAssistant Defender
REB.jd
Enclosures
cc: Muskegon County ProsecutorCourt of Appeals Clerk (Grand Rapids)Muskegon County Circuit Court ClerkScott Bennett Harris
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STATE OF MICHIGAN
IN THE SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN, Supreme Court No.Plaintiff-Appellee,
-v- Court of Appeals No. 297182SCOTT BENNETT HARRIS,
Defendant-Appellant . Circuit Court No. 08-56761 FH
NOTICE OF HEARING
TO: MUSKEGON COUNTY PROSECUTOR
PLEASE TAKE NOTICE that on August 17, 2010, the undersigned will move thisHonorable Court to grant the within Application for Leave to Appeal.
STATE APPELLATE DEFENDER OFFICE
BY: _____________________________________ROLF E. BERG (P26758)
Date: July 30, 2010
PROOF OF SERVICE
STATE OF MICHIGAN )COUNTY OF INGHAM )
Rolf E. Berg, being first sworn, says that on July 30, 2010, he mailed one copy of the
following: NOTICE OF HEARING/PROOF OF SERVICE and APPLICATION FOR LEAVETO APPEAL to:
Muskegon County Prosecutor5th Floor, County Building990 TerraceMuskegon, MI 49442
Clerk, Muskegon County Circuit CourtCounty Building990 Terrace Street
Muskegon, MI 49442
Clerk, Michigan Court of Appeals350 Ottawa NWGrand Rapids, MI 49503
_____________________________________Rolf E. Berg
Subscribed and sworn to before meJuly 30, 2010.
_________________________________Jean M. DowneyNotary Public, Ingham County, MichiganMy commission expires: 11/1/2014IDEN NO. 23852P-G / Rolf E. Berg
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STATE OF MICHIGAN
IN THE SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Supreme Court No.Plaintiff-Appellee,Court of Appeals No. 297182
-v-Circuit Court No. 08-56761 FH
SCOTT BENNETT HARRIS,
Defendant-Appellant._______________________________/MUSKEGON COUNTY PROSECUTORAttorney for Plaintiff-Appellee
ROLF E. BERG (P26758)Attorney for Defendant-AppellantState Appellate Defender Office101 North Washington, 14th FloorLansing, MI 48913
JUDGMENT APPEALED FROM AND RELIEF SOUGHT
Defendant-Appellant Scott Bennett Harris applies for leave to appeal the June 4, 2010
order of the Court of Appeals denying leave to appeal his guilty plea for failure to pay child
support. The core of his argument is the unconstitutionality of the statute which, as presently
defined, precludes any defense of inability to pay. These arguments are presently pending on
application to this Court from the adverse decision of the Court of Appeals inPeople v Likine,
___Mich App ___ (dkt no. 290218, decd 4/20/10) (S Ct dkt no. 141154). Mr. Harris also
challenges the statutory interpretation of this statute by the Court of Appeals as an alternative
remedy avoiding the constitutional issues raised.
Mr. Harris also challenges the voluntariness of his plea. The Cobbs agreement, as
interpreted, unconstitutionally permitted the Court to withdraw of the promise of no jail on the
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basis of his involuntary inability to pay. Finally, Mr. Harris challenges the calculation of his
restitution.
Mr. Harris asks that this Court grant this application for leave to appeal and either vacate
his conviction or remand for a restitution hearing. In the alternative, he asks that this Court hold
this case in abeyance pending its decision in theLikine case, or such other relief as the Court
deems appropriate.
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STATE OF MICHIGAN
IN THE SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Supreme Court No.Plaintiff-Appellee,Court of Appeals No. 297182
-v-Circuit Court No. 08-56761 FH
SCOTT BENNETT HARRIS,
Defendant-Appellant.______________________________/
MUSKEGON COUNTY PROSECUTOR
Attorney for Plaintiff-Appellee
ROLF E. BERG (P26758)Attorney for Defendant-Appellant
APPLICATION FOR LEAVE TO APPEAL
STATE APPELLATE DEFENDER OFFICE
BY: ROLF E. BERG (P26758)Assistant DefenderState Appellate Defender Office101 North Washington14th FloorLansing, MI 48913
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TABLE OF CONTENTS
TABLE OF AUTHORITIES............................................................................................................i
STATEMENT OF JURISDICTION..............................................................................................iv
STATEMENT OF QUESTIONS PRESENTED.............................................................................v
STATEMENT OF FACTS..............................................................................................................1
I. THE PROVISIONS OF THE INTERTWINED CIVIL AND CRIMININALSTATUTES IN THIS CASE ARE INCONSISTENT WITH A CONCLUSIONTHAT THE LEGISLATURE INTENDED TO CREATE A FELONY WITH NODEFENSE OF INABILITY TO PAY.....................................................................5
II. THE PROHIBITION OF AN INABILITY-TO-PAY DEFENSE VIOLATES
THE MICHIGAN AND FEDERAL DUE PROCESS CLAUSES ASINTERPRETED BY THE MICHIGAN SUPREME COURT IN CITY OF PORTHURON V JENKINSON..........................................................................................9
A. THE CIVIL PROCEEDINGS FOR DETERMINATION OF SUPPORTLEVELS DO NOT MAKE THE STATUTE CONSTITUTIONAL.........11
B. THE ELIMINATION OF A VOLUNTARY ACTUS REUSREQUIREMENT RENDERS THE STATUTE UNCONSTITUTIONAL.....................................................................................................................14
III. THE TRIAL COURT ERRONEOUSLY DENIED MR. HARRIS MOTION TOWITHDRAW HIS PLEA AS HE WAS DENIED THE BENEFIT OF THECOBBS AGREEMENT AND INCARCERATED BASED UPON ANUNCONSTITUTIONAL CONSIDERATION OF HIS INDIGENCY.................18
IV. THE TRIAL COURT ERRONEOUSLY ADOPTED THE CHILD SUPPORTARREARAGE IN FAMILY COURT AS THE RESTITUTION AWARDDESPITE ITS FAILURE TO FIND THAT THIS AMOUNT WAS ALL THERESULT OF CRIMINAL CONDUCT.................................................................21
SUMMARY AND RELIEF...........................................................................................................23
APPENDIX.....................................................................................................................................A
REB*Application for leave to appeal SC 23852.doc*23852Scott Bennett Harris
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TABLE OF AUTHORITIES
CASES
Bearden v Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d 221 (1983)..............................15, 20
Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004).................12
Boykin vAlabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969)...........................19
Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009)............................................5, 7
Commonwealth v Mason, 317 SW2d 166 (Ky, 1958).............................................................13, 16
Epp v State, 107 Nev 510; 814 P2d 1011 (1991)..............................................................16
In re Antazo, 3 Cal 3d 100; 473 P2d 999 (1970)...............................................................20
In re Baker, 117 Mich App 591; 324 NW2d 91 (1982)....................................................12
In re valle, 364 Mich 471 (1961)......................................................................................20
Ives v Boone, 101 Fed Apx 274 (CA 10, 2004)................................................................13
Lashley v State, 236 Ala 1; 180 So 717 (1938).................................................................16
People vAdams, 262 Mich App 89 (2004)................................................................passim
People vBeasley, 238 Mich App 548; 609 NW2d 581 (2000).........................................10
People v Clabin, 411 Mich 472 (1982)...............................................................................9
People v Cobbs, 443 Mich 276 (1993)..............................................................................19
People vDowdy, No 138351; 2009 WL 2414918 (Mich Aug 6, 2009)..................................10, 13
People v Gahan, 456 Mich App 264 (1997).....................................................................22
People vHill, 269 Mich.App 505 (2006)............................................................................5
People vHoustina, 216 Mich App 70 (1996)..................................................................5, 9, 18, 21
People vJackson, 483 Mich 271 (2009).................................................................................16, 17
People vKean, 204 Mich App 533 (1994).......................................................................19
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People vKillebrew, 416 Mich 189 (1982)........................................................................19
People vLikine, ___ Mich App ___ (dkt no. 290218, dec'd 4/20/10) (S Ct dkt no.141154)..............................................................................................................9, 23
People v Monaco, 474 Mich 48 (2006).........................................................................7, 12
People vNew, 427 Mich 482 (1986)...................................................................................9
People vPasha, 466 Mich. 378 (2002)...............................................................................5
Robinson vDetroit, 462 Mich. 439; 613 NW2d 307 (2000)..............................................5
Smith vDep't of Public Health, 428 Mich 540; 410 NW2d 749 (1987)...........................10
City of Port Huron vJenkinson, 77 Mich 414; 43 NW 923 (1889)....................................9, 10, 11
Tobe v City of Santa Ana, 9 Cal 4th 1069; 892 P2d 1145 (1995).....................................16
United States v Cohen, 946 F2d 430 (CA 6, 1991)...........................................................13
United States v Mandycz, 447 F3d 951 (CA 6, 2006).......................................................12
Williams vIllinois, 399 US 235 (1970).............................................................................19
Zablocki vRedhail, 434 US 374; 98 S Ct 673; 54 L Ed 2d 618 (1978)............................15
CONSTITUTIONS, STATUTES, COURT RULES
MCL 552.601 to 552.650....................................................................................................6
MCL 552.632......................................................................................................................6
MCL 552.633......................................................................................................................6
MCL 750.165.............................................................................................................passim
MCL 769.1............................................................................................................16, 20, 22
MCL 780.766................................................................................................................7, 22
MCL 780.767(4)................................................................................................................22
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MCR 6.302 (A),(C)...........................................................................................................19
MCR 6.310(C).................................................................................................................5, 9, 18, 21
MISCELLANEOUS
21 Am Jur 2d, Criminal Law 132 (2009)........................................................................14
23 Am Jur 2d,Desertion and Nonsupport 41 (2009).....................................................14
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STATEMENT OF JURISDICTION
Defendant-Appellant was convicted in the Muskegon County Circuit Court by plea of
guilty and was sentenced on December 8, 2008. Defendant-Appellant requested the appointment
of appellate counsel on December 9, 2008. The offenses occurred after the effective date of the
November, 1994 ballot Proposal B that eliminated the right to file a claim of appeal from plea-
based convictions. The Court of Appeals had jurisdiction to consider the Defendant-Appellant's
application for leave to appeal as it was filed within 21 days of the Circuit Court Order of March
5, 2010 denying the Motion for Rehearing filed pursuant to the Circuit Court Order of December
2, 2009 denying the Motion For Resentencing Or Withdraw Plea, which motion was filed on
June 9, 2009, within 6 months of the entry of a final judgment. MCR 6.310(C); MCR
7.205(F)(4).
The Court of Appeals denied leave to appeal on June 4, 2010. This Court has jurisdiction
to grant leave to appeal. MCR 7.301(A).
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STATEMENT OF QUESTIONS PRESENTED
I. ARE THE PROVISIONS OF THE INTERTWINED CIVIL AND CRIMININALSTATUTES IN THIS CASE INCONSISTENT WITH A CONCLUSION THAT THELEGISLATURE INTENDED TO CREATE A FELONY WITH NO DEFENSE OF
INABILITY TO PAY?
Trial Court answers, "No".Defendant-Appellant answers, "Yes".Plaintiff-Appellee answered, "No".Court of Appeals answered, "No".
II. DOES THE PROHIBITION OF AN INABILITY-TO-PAY DEFENSE VIOLATE THEMICHIGAN AND FEDERAL DUE PROCESS CLAUSES AS INTERPRETED BYTHE MICHIGAN SUPREME COURT IN CITY OF PORT HURON V JENKINSON?
Trial Court answers, "No".
Defendant-Appellant answers, "Yes".Plaintiff-Appellee answered, "No".Court of Appeals answered, "No".
A. DO THE CIVIL PROCEEDINGS FOR DETERMINATION OF SUPPORTLEVELS NOT MAKE THE STATUTE CONSTITUTIONAL?
Trial Court answers, "No".Defendant-Appellant answers, "Yes".Plaintiff-Appellee answered, "No".Court of Appeals answered, "No".
B. DOES THE ELIMINATION OF A VOLUNTARY ACTUS REUSREQUIREMENT RENDER THE STATUTE UNCONSTITUTIONAL?
Trial Court answers, "No".Defendant-Appellant answers, "Yes".Plaintiff-Appellee answered, "No".Court of Appeals answered, "No".
III. DID THE TRIAL COURT ERRONEOUSLY DENY MR. HARRIS MOTION TOWITHDRAW HIS PLEA AS HE WAS DENIED THE BENEFIT OF THE COBBS
AGREEMENT AND INCARCERATED BASED UPON AN UNCONSTITUTIONALCONSIDERATION OF HIS INDIGENCY?
Trial Court answers, "No".Defendant-Appellant answers, "Yes".Plaintiff-Appellee answered, "No".Court of Appeals answered, "No".
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IV. DID THE TRIAL COURT ERRONEOUSLY ADOPT THE CHILD SUPPORTARREARAGE IN FAMILY COURT AS THE RESTITUTION AWARD DESPITE ITSFAILURE TO FIND THAT THIS AMOUNT WAS ALL THE RESULT OFCRIMINAL CONDUCT?
Trial Court answers, "No".Defendant-Appellant answers, "Yes".Plaintiff-Appellee answered, "No".Court of Appeals answered, "No".
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STATEMENT OF FACTS
Defendant pled guilty to failure to pay child support on September 25, 2008 before the
Honorable Timothy G. Hicks in the Muskegon County Circuit Court. This plea was entered
pursuant to a Cobbs agreement that the sentencing would be delayed until May 25, 2008,
provided he paid $3000 of his arrearage by December 8, 2008. It was further offered that, if he
paid a total of $8,000 by the day of sentencing, he would not be sentenced to any time in jail.
(PT 6-7).
Defendant and his wife divorced in 2003 and child support payments were originally set
at $139 per month. (See documents from Muskegon County Circuit Court dkt no 2003-020805-
DM). In 2006 the amount was raised to $612 per month. He had already moved to Florida when
the support order went into effect. He had made payments steadily until June, 2007. When
working his payments came directly out of his pay. (PT 11). A referral was made to an
investigator for the prosecutors office on May 7, 2008. The arrearages were then listed as $12,
781.39. A bench warrant was issued on June 24, 2008. Mr. Harris voluntarily returned from his
home in Florida and surrendered on July 21, 2008. (PSI at 2).
Prior to the plea in this case Mr. Harris again sought a modification of his support
claiming that he could not work and was getting unemployment and disability payments. The
Family Court denied the modification even after he filed a request for rehearing asking for a
telephone hearing and stating that he had gotten the evidence needed to show his unemployment
benefits. (See Appendix H to Mr. Harris Court of Appeals application).
Mr. Harris worked as a welder but it was recognized by both his former wife and the
presentence investigator that health problems including degenerative discs in his back limited his
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ability to work. (ST 7, PSI 1). He was confined to his home during flare ups two or three times
per year.
By December 8, 2008, Defendant had not been able to save the required $3000 payment
and returned from Florida voluntarily and appeared before the Court. He had been able to secure
only $1500 in the two months since the plea. (ST 3). When contacted at his home in Florida on
November 17, 2008, he reported to the probation agent that he had been flat on his back in bed
for 2 weeks. He had lost the job he had when he came to Michigan in response to the warrant in
this case. He had worked two times for about 2 years each in Florida, but his health and the
current lack of available work made the prospect of full time work unlikely. (PSI 1).
The court found that he was in violation of the Cobbs agreement that would have kept
him out of prison and sentenced him to 15 months to 15 years in prison.
Mr. Harris filed a motion for resentencing or to withdraw his plea. (See motion). A
hearing was held on August 10, 2009, at which time the motion was denied except for a decision
on the issue regarding the scoring of OV 9.1
Defendant challenged the interpretation of the felony non-support statute as precluding a
defense of inability to pay claiming that it rendered the statute unconstitutional. The trial court
recognized that the strict liability standard for the offense of felony non support seems to butt
up against the traditional inability to pay defense which probationers can assert. The Court
noted that it would be very helpful to have some better appellate guidance but held that it was
bound by the case ofPeople v Adams, 262 Mich App 89, 100 (2004). (MT 29).
1The Court later requested further briefing on that issue and ultimately issued an opinion denyingthat portion of the motion. Defendant filed a timely motion for reconsideration which wasdenied by the Court. (See docket entries). As Mr. Harris has since been paroled, he is notpursuing that sentencing issue in this application and these proceedings are relevant only to thetiming of his application to this Court.
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Mr. Harris also claimed a right to withdraw his plea due to a violation of his Cobbs
agreement to no more than jail time if he made the payments agreed to at the time of the plea.
He argued that he could not be constitutionally found in violation of the agreement when he
could raise only half of the agreed upon amount by December as his he had been bedridden with
back problems and because of the lack of jobs at that time. This was consistent with the
information in the presentence report. (PSI at 1). The trial court denied this argument. He
stated that Mr. Harris had negotiated the terms of the agreement to earn a jail sentence and the
Court had reluctantly allowed him to return to a vacationers climate in Florida during the winter.
(MT 31).
But Mr. Harris was merely returning to his home in Florida where he had lived and
worked for years. Defense counsel argued that there was no evidence that he had not made the
agreement based upon a good faith estimate of what he could earn and that he had been unable to
do so due to health problems beyond his control. (MT 11, 26). The Court agreed to accept as
true the offer of proof that he had worked hard in Florida and couldnt come up with the money
rather than conduct an evidentiary hearing. But it found that this wasnt a defense to a violation
of his agreement. (MT 21, 31). The Court found that he was now estopped from saying that the
Court was penalizing him for his inability to pay the amount of restitution he had agreed upon.
(MT 31).
In rejecting the argument that the Court had erred in adopting the family divisions
calculation of the arrearage as the restitution, the Court acknowledged that its another
complicated issue. (MT 32). The Court stated that its a point that probably is properly made.
The objection is noted. But here at this level, the court is denying relief on that basis. (MT 33).
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Mr. Harris was paroled after serving his 15 month minimum sentence. His motion for
reduction of support payments while in prison was denied based on the claim that the statute
does not permit abatement of payments while incarcerated for this offense. He now owes over
$14,000 which accumulated while he was in prison, in addition to the more than $12,000 in
restitution ordered at sentencing. (See Appendix H to Mr. Harris Court of Appeals application
with documents from the civil court file).
Mr. Harris filed an application for leave to appeal to the Court of Appeals which it denied
by order on June 4, 2010, for lack of merit in the grounds presented. He now applies for leave
to appeal to this Court.
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I. THE PROVISIONS OF THE INTERTWINED CIVIL ANDCRIMININAL STATUTES IN THIS CASE ARE INCONSISTENT WITH ACONCLUSION THAT THE LEGISLATURE INTENDED TO CREATE A FELONYWITH NO DEFENSE OF INABILITY TO PAY.
STANDARD OF REVIEW: Issues interpreting statutes, court rules andconstitutional provisions are issues of law which this court reviews denovo. People v Houstina, 216 Mich App 70 (1996).
PRESERVATION OF ISSUE: Defendant preserved this issue forappeal by raising it in a motion for resentencing or plea withdrawal. MCR6.310(C).
InPeople v Adams, 262 Mich App 89, 100 (2004), this Court interpreted the felony non-
support statute, MCL 750.165, to preclude a defense of inability to pay. This interpretation was
based upon a reading of the statute in isolation, rather than an interpretation of the Legislative
intent as demonstrated by other closely related statutory provisions.
When construing statutory language, which we review de novo, this Court must ascertain
and give effect to the Legislature's intent. People v Pasha, 466 Mich. 378, 382 (2002);People v
Hill, 269 Mich.App 505, 514 (2006). Because the Legislature is presumed to understand the
meaning of the language it enacts into law, statutory analysis must begin with the wording of the
statute itself. Robinson v Detroit, 462 Mich. 439, 459; 613 NW2d 307 (2000); see alsoPasha,
466 Mich at 382; 645 NW2d 275 (The first step in that determination is to review the language
of the statute itself.) (internal quotation omitted).
However, inBush v Shabahang, 484 Mich 156, 167-168; 772 NW2d 272 (2009), the
Supreme Court emphasized that the analysis must also consider the language of other relevant
statutes in ascertaining the legislative intent.
A statute must be read in conjunction with other relevant statutes to ensure thatthe legislative intent is correctly ascertained. The statute must be interpreted in anmanner that ensures that it works in harmony with the entire statutory scheme.Moreover, courts must pay particular attention to statutory amendments, becausea change in statutory language is presumed to reflect either a legislative change in
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The penalty provisions for this statute are also inconsistent with a legislative intent to
preclude a defense of inability to pay. While the penalty for felony non support includes a
potential 4 years in prison, the criminal provisions for the ultimate enforcement of the unpaid
support arrearage rests with the provisions for its collection as restitution. But there are no
special provisions for collection of restitution for this offense. Significantly the applicable
general rules prohibit incarceration of those failing to pay restitution on probation or parole if
they have no reasonable ability to pay. MCL 780.766(14):
(14) Notwithstanding any other provision of this section, a defendant shall not beimprisoned, jailed, or incarcerated for a violation of probation or parole or
otherwise for failure to pay restitution as ordered under this section unless thecourt or parole board determines that the defendant has the resources to pay theordered restitution and has not made a good faith effort to do so.
It is irrational to interpret the felony non support statute to permit a person unable to pay
support to be subject to a 4 year prison sentence, while, at the same time, a person on probation
for that same offense cannot even be jailed for failure to pay if they are unable to do so.
When read in light of the decision inPeople v Monaco, 474 Mich 48 (2006), the statutory
scheme as interpreted inAdams, supra, fails still more dramatically to reflect a harmonious
statutory scheme as required byBush v Shabahang, supra. The Monaco case holds that each
failure to pay the full amount due on time constitutes a separate felony. Thus a probationer
unable to pay restitution on the arrearage cannot be jailed for violation of probation. But they
can be charged with a new felony and sent to prison for 4 years with no inability to pay defense.
The facts of this case demonstrate this irrational result. One specific provision of the
SPTEA is that a person who is incarcerated is entitled to have payment obligations suspended
unless incarcerated for failure to pay support. For this reason Mr. Harris was denied any
reduction or suspension of his support payments while serving his prison sentence for this
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offense. (See denial of petition in Appendix H to Mr. Harris Court of Appeals application).
Thus anyone jailed for violation for failure to pay support cannot have their monthly support
obligation reduced and become guilty of another felony each month with no defense of an
inability to pay.
Defendants post conviction motion challenged the interpretation of the felony non-
support statute as precluding a defense of inability to pay claiming that it rendered the statute
unconstitutional. While denying the motion, the trial court recognized that the strict liability
standard for the offense of felony non support seems to butt up against the traditional inability
to pay defense which probationers can assert. The Court noted that it would be very helpful to
have some better appellate guidance but held that it was bound by the case ofPeople v Adams,
262 Mich App 89, 100 (2004). (MT 29).
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II. THE PROHIBITION OF AN INABILITY-TO-PAY DEFENSEVIOLATES THE MICHIGAN AND FEDERAL DUE PROCESS CLAUSES ASINTERPRETED BY THE MICHIGAN SUPREME COURT IN CITY OF PORTHURON V JENKINSON.
STANDARD OF REVIEW: Issues interpreting statutes, court rules andconstitutional provisions are issues of law which this court reviews denovo. People v Houstina, 216 Mich App 70 (1996).
PRESERVATION OF ISSUE: Defendant preserved this issue forappeal by raising it in a motion for resentencing or plea withdrawal. MCR6.310(C). Moreover, a defendants plea does not waive a challenge to theconstitutionality of the statutory offense. People v Clabin, 411 Mich 472(1982);People v New, 427 Mich 482 (1986).
The interpretation of the felony non support statute inPeople v Adams, 262 Mich App 89,
100 (2004), is unconstitutional, as well a flawed interpretation of the legislative intent as argued
in Issue I, supra. The more recent case ofPeople v Likine, followed theAdams case with the
same flawed reasoning. People v Likine,___ Mich App ___ (dkt no. 290218, decd 4/20/10) (S
Ct dkt no. 141154). In addition to the substantially similar arguments herein presented, Mr.
Harris adopts by reference the detailed challenge to the analysis of the Court of Appeals in
Likinepresented in the pending application for leave to appeal that decision. (See appended
Application for leave to appeal inPeople v Likine).
The Michigan Supreme Court held in City of Port Huron v Jenkinson, 77 Mich 414, 419;
43 NW 923 (1889), that [n]o legislative or municipal body has the power to impose the duty of
performing an act upon any person which it is impossible for him to perform, and then make his
non-performance of such duty a crime, for which he may be punished by both fine and
imprisonment. Any such imposition is unconstitutional under the Michigan Constitution. What
the State ignores is that both this Court and the state legislature are bound by the Michigan
Constitution, as authoritatively construed by the Michigan Supreme Court, and neither can create
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or interpret a statute in an unconstitutional manner. As our supreme court stated in Smith v
Dept of Public Health, 428 Mich 540, 640-41; 410 NW2d 749 (1987):
In light of the preeminence of the constitution, statutes which conflict with it must
fall. . . . The idea that our Legislature would indirectly seek to approve acts bythe state which violate the state constitution by cloaking such behavior withstatutory immunity is too far-fetched to infer from the language of [the statute].We would not ascribe such a result to our Legislature.
Even if this Court had considered the state constitutional question inAdams, which it did
not, it certainly would have recognized that it does not have the authority to overrule or to ignore
the Michigan Supreme Courts binding interpretation of the Michigan Constitution. People v
Beasley, 238 Mich App 548, 556; 609 NW2d 581 (2000) ([T]his Court is bound by Michigan
Supreme Court precedent.).
The fact that theJenkinson case was not an interpretation of the felony non-support
statute is irrelevant. The Michigan Supreme Court did not qualify its holding that criminalizing
the failure to perform a duty that is impossible for a person to perform is unconstitutional. Just a
few weeks ago, several justices of the Michigan Supreme Court relied onJenkinson for the
proposition that [a] person cannot be criminally liable for failing to do an act that he or she is
incapable of performing, without qualification. People v Dowdy, No 138351, 2009 WL
2414918, at *2 (Mich Aug 6, 2009) (Kelly, CJ, concurring);see alsoid. at *5 n22 (Hathaway, J,
dissenting). Tellingly, the Court inJenkinson did not hold that the sections of the statute would
be constitutional if the city had provided a process by which a resident could seek to mitigate the
costs of building a sidewalk. In fact, if such procedures would have saved the statute in question,
the Court would likely have interpreted the statute to include such procedures. Smith,supra at
640(A basic rule of constitutional interpretation is that wherever possible an interpretation [of
a statute] that does not create constitutional invalidity is preferred to one that does.).
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Notice would not have cured the constitutional defect either. While theJenkinson court
addressed the improper notice in the statute, it plainly stated that the lack of notice, which was a
defect . . . sufficient to dispose of the case if no other infirmity appeared, was a separate issue
from the invalidity of the statute for imposing a duty upon a person that was impossible to
perform. Jenkinson,supra at 419. The lack of notice made the complaint and warrant . . .
defective while the statute was invalid on its own because the duty it imposed was obnoxious
to our constitution and laws . . . [and was] a disgrace to the legislation of the state two distinct
holdings. Id. at 419-20. The prosecution misreadsJenkinson and therefore improperly attempts
to distinguishJenkinson on the facts.
A. THE CIVIL PROCEEDINGS FOR DETERMINATION OFSUPPORT LEVELS DO NOT MAKE THE STATUTE CONSTITUTIONAL.
InPeople v Adams, 262 Mich App 89, 99 (2004), the court attempted to justify the
ramifications of its decision by suggesting that a defendant was adequately protected by the
ability to contest support payments which could not reasonably be paid. But this fails to
recognize the fundamentally different issue being decided by in Family Court. There is no
decision being made that a person will in fact be able to reasonably make the ordered payment
every month. The amount is often set based upon a presumed ability to get a job and pay the
amount over time. The limits on jailing for contempt recognize that persons will sometimes be
unable to pay for a period and yet should not be subject to jail for that reason. Similarly the
provision previously referenced precluding suspension of payments while in jail for failure to
pay support does not envision a felony conviction for each month in jail.
The availability of a civil court modification hearing does not change the fact that MCL
750.165, as interpreted, unconstitutionally criminalizes the failure to pay child support even
when it is impossible for a person to pay. As the prosecution notes, [t]he trial court specifically
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ruled that even if defendant's child support modification motion were successful, it did not
retroactively absolve defendant of criminal liability for the amounts he had previously failed to
pay. (Appellees Brief at 1.) Even when granted modification of child support payments, a
defendant remains criminally liable for any payments missed before the modification order.
People v Monaco, supra. The availability of a modification hearing, therefore, does not remove
criminal liability imposed in violation of due process.
Lack of procedural due process in Family Court
Family Court proceedings, such as child support modification hearings, lack the due
process requirements of criminal cases, including the right to counsel and the right to have a jury
determine whether there is proof beyond a reasonable doubt. See United States v Mandycz, 447
F3d 951, 962 (CA 6, 2006) (Criminal cases offer many due process protections e.g., jury trial,
indictment, beyond-a-reasonable-doubt burden of proof, right to counsel that civil proceedings,
including denaturalization proceedings, do not.); cf.In re Baker, 117 Mich App 591, 594-95;
324 NW2d 91 (1982) (discussing the differences between civil and criminal due process with
regard to commitment proceedings) (citingAddington v Texas, 441 US 418; 99 S Ct 1804; 60 L
Ed 2d 323 (1979)). In her Family Court proceedings, Defendant was not able to confront the
witnesses against her, to cross-examine or hear their testimony against her; he did not have the
right to effective assistance of counsel and did not have the right to a competency determination.
Nor did he have the right in civil court to have a jury of her peers determine whether he was able
to pay the child support assessments. See Blakely v Washington, 542 US 296, 313; 124 S Ct
2531; 159 L Ed 2d 403 (2004) ([E]very defendant has the rightto insist that the prosecutor
prove to a jury all facts legally essential to the punishment.).
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It is firmly established that the findings of a civil case cannot be imported to establish
guilt in a criminal trial. See, e.g., United States v Cohen, 946 F2d 430, 437 (CA 6, 1991)
(holding that a judges jury instructions in a criminal case that merely distinguished the burden
of proof in a civil case from that in a criminal case did not sufficiently prevent the improper
inference that the civil judgment established defendant's guilt in the criminal action).
Additionally, [t]he differences in proof standards [between civil and criminal cases] preclude
application of the collateral estoppel doctrine. Ives v Boone, 101 Fed Apx 274, 291 (CA 10,
2004). In the context of criminal nonsupport, basing absolute criminal liability solely upon
noncompliance with the terms of . . . a civil judgment . . . violates[] due process.
Commonwealth v Mason, 317 SW2d 166, 167-68 (Ky, 1958) (citing OHarrah, 262 SW2d at
388). Thus there is no support for a claim that the Family Courts findings are sufficient bases to
establish criminal liability under MCL 750.165. The prosecution cites no such authority because
all authority holds otherwise.
InDowdy,supra, the justices were in disagreement over whether the defendant was able
to comply with the Sex Offenders Registration Act (SORA). Those justices who believed that it
was impossible for the defendant to comply with the duty imposed under SORA believed that the
charges against the defendant should be dismissed. SeeDowdy,supra, at *2 (Kelly, CJ,
concurring); id. at *5 n 22(Hathaway, J, dissenting). The other justices believed that the
defendant was properly charged based on their reasoning that the "defendant . . . made absolutely
no effort to comply [with SORA]," in contrast with a defendant who is simply unable to comply.
Id. at *2 (Young, J, concurring). Notably, unlike Defendant, the defendants in Westman and
Brown failed to attempt modification, and while Justice Young may find that both Westman and
Brown would therefore be properly subject to criminal liability, Defendant who sought
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modification but was denied could not be held criminally liable without a showing that he was
able to comply. The mere existence of the modification hearing cannot therefore render MCL
750.165 constitutional.
B. THE ELIMINATION OF A VOLUNTARY ACTUS REUSREQUIREMENT RENDERS THE STATUTE UNCONSTITUTIONAL.
Strict liability cannot eliminate the necessity of a voluntary act or omission to
establish criminal liability. Strict liability statutes only remove the requirement of a culpable
mental state, or mens rea. 21 Am Jur 2d Criminal Law 132 (2009). Creating a strict liability
statute cannot criminalize an involuntary omission, a duty for which it is impossible for a
person to perform; rather, the act or omission must be deliberate and voluntary in order to
violate even a strict liability provision. Id. Even in the case of nonpayment of child support, a
parent is not criminally liable for child nonsupport in cases where, through no fault of his or her
own, such a person lacks the ability or means to support the child. 23 Am Jur 2d,Desertion
and Nonsupport 41 (2009).
Recognizing that a voluntary act or omission is necessary to establish criminal liability,
the State ineffectually attempts to characterize Defendants inability to pay due to insufficient
funds as a voluntary act. The prosecutions attempt to equate a person who fails to make a child
support payment that he or he cannot pay, that is, a person who involuntarily fails to perform a
legal duty,with a person who knowingly drives with faulty brakes, that is, a person who
voluntarily takes affirmative action, is bizarre and insupportable. The State does not and
cannot propose any way in which Defendant, who already sought modification and was denied,
could possibly have avoided criminal liability other than to have come up with the money
somehow. The State once again impermissibly relies on the findings of the Family Court to
assume that coming up with the money was possible, as discussed in Section I(C) supra.
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Knowledge of an obligation, which is a mens rea element, is not the same as the possibility of
compliance, the voluntary act or omission. It is the State, not the Defendant, that confuses the
concepts of mens rea and actus reus.
The State again engages in circular reasoning, arguing that the elimination of the ability
to pay requirement by MCL 750.165 is constitutional because [t]he operative language of the
statute removes the requirement, even though the constitutionality of that very interpretation of
the statue is what is in question. (Appellees Brief at 19.) As discussed in Section I(B),supra,
the Legislature does not determine what is constitutional. Nor is it the prosecutions place to
decide who has the ability to pay beyond a reasonable doubt. That is for the jury or judge to
decide in the course of the criminal proceeding.
United States Supreme Court precedent
The United States Supreme Court has held state statutes unconstitutional, even in non-
criminal contexts, when they prohibit defendants from presenting evidence of their inability to
comply with the duty imposed by the State. In bothZablocki v Redhail, 434 US 374; 98 S Ct
673; 54 L Ed 2d 618 (1978), andBearden v Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d
221 (1983), the Court invalidated statutes that imposed criminal liability on people for failing to
do that which they cannot do. Zablocki,supra at 387; id. at 400 (Powell, J, concurring) ([T]he
vice inheres, not in the collection concept, but in thefailure to make provision for those
without the means to complywith child-support obligations. (emphasis added));Bearden,
supra at 673 ([Imposing criminal liability when] through no fault of his own, [defendant]
cannot pay the fine . . . is contrary to the fundamental fairness required by the Fourteenth
Amendment.).
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Several state court decisions have similarly recognized that the Due Process Clause of the
Fourteenth Amendment requires state statutes to allow defendants to show they are unable to
comply with the duty imposed. See, e.g., Mason,supra, at 168 (holding that the Due Process
Clause required that the defense of inability to pay must also be considered to be considered
available under the Kentucky nonsupport statute);Epp v State, 107 Nev 510, 514; 814 P2d
1011 (1991);Lashley v State, 236 Ala 1, 4; 180 So 717 (1938); Tobe v City of Santa Ana, 9 Cal
4th 1069, 1087; 892 P2d 1145 (1995). The State again fails to address the holdings in any of the
Supreme Court or state court decisions cited above, instead focusing on the one state court
decision that was overturned byAdams, a case whose application is under constitutional scrutiny
in the present case.
Lastly, in its recent decision inPeople v Jackson, 483 Mich 271 (2009), the Michigan
Supreme Court further delineated when courts must assess a defendants ability to pay. Jackson
involved the assessment of attorneys fees on criminal defendants under MCL 769.1k, which the
Court noted, was not limited by reference to a defendants ability to pay. Jackson,supra, at
283. The Court held that the Due Process Clause did not, as the defendant tried to argue, require
an ability to pay assessment before the imposition of a fee, but noted that "[the ability-to-pay]
assessment is . . . required at the time payment is required, i.e., when the imposition is
enforced. Id. at 291 (emphasis added). The Court further held that once enforcement of the
fee imposition has begun, and a defendant has made a timely objection based on his claimed
inability to pay, the trial courts should evaluate the defendants ability to pay . Id. at 292
(emphasis added). It does not matter whether the statute itself requires the assessment. Id. at
291. Rather, the assessment is required by due process. The Family Courts issuance of a child
support order imposes a fee on the defendant. When the State chooses to charge a defendant like
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Defendant under MCL 750.165, it begins an enforcement action. UnderJackson and the Due
Process Clause, therefore, Defendant must . . . be given an opportunity to contest the
enforcement on the basis of indigency. Id. at 292.
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III. THE TRIAL COURT ERRONEOUSLY DENIED MR. HARRISMOTION TO WITHDRAW HIS PLEA AS HE WAS DENIED THE BENEFIT OF THECOBBS AGREEMENT AND INCARCERATED BASED UPON ANUNCONSTITUTIONAL CONSIDERATION OF HIS INDIGENCY.
STANDARD OF REVIEW: Issues interpreting statutes, court rules andconstitutional provisions are issues of law which this court reviews denovo. People v Houstina, 216 Mich App 70 (1996).
PRESERVATION OF ISSUE: Defendant preserved this issue for appeal byraising it in his motion for resentencing or plea withdrawal. MCR 6.310(C).
Defendant plead guilty to this offense pursuant to a Cobbs agreement that his sentence
would be delayed until May and he would not be sentenced to jail if he paid $3000 by December
8, 2008, and a total of $8000 by May. (PT 4). On December 8, 2008, he appeared in Court and
had been able to save only $1500. (ST 10).
The record in this case is inconsistent with a finding that Mr. Harris was reasonably able
to secure $3000 by December 8, 2008. He was a welder living in Florida at the time he was
charged with this offense. The presentence investigator noted that his health problems, including
deteriorated spinal discs, and the general lack of jobs made it unlikely that he could find full time
employment. (PSI at 1). The investigator also noted that Mr. Harris had been flat on his back in
bed for the two weeks prior to their contact on November 17, 2008. His former wife verified his
claim of chronic back problems. (ST 7).
Mr. Harris also claimed a right to withdraw his plea due to a violation of his Cobbs
agreement to no more than jail time if he made the payments agreed to at the time of the plea.
He argued that he could not be constitutionally found in violation of the agreement when he
could raise only half of the agreed upon amount by December as his he had been bedridden with
back problems and because of the lack of jobs at that time. This was consistent with the
information in the presentence report. (PSI at 1). The trial court denied this argument. He
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stated that Mr. Harris had negotiated the terms of the agreement to earn a jail sentence and the
Court had reluctantly allowed him to return to a vacationers climate in Florida during the winter.
(MT 31).
But Mr. Harris was merely returning to his home in Florida where he had lived and
worked for years. Defense counsel argued that there was no evidence that he had not made the
agreement based upon a good faith estimate of what he could earn and that he had been unable to
do so due to health problems beyond his control. (MT 11, 26). The Court agreed to accept as
true the offer of proof that he had worked hard in Florida and couldnt come up with the money
rather than conduct an evidentiary hearing. But it found that this wasnt a defense to a violation
of his agreement. (MT 21, 31). The Court found that he was now estopped from saying that the
Court was penalizing him for his inability to pay the amount of restitution he had agreed upon.
(MT 31).
To be constitutionally valid, a defendant's guilty plea must be intelligent and voluntary.
Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969); MCR 6.302 (A),(C).
When a plea is offered pursuant to a sentence bargain with the prosecutor or a preliminary
evaluation by the Court of the appropriate sentence, the Defendant has an absolute right to
withdraw his plea at sentencing if the Court determines the need to impose a more severe
sanction. People v Killebrew, 416 Mich 189 (1982);People v Cobbs, 443 Mich 276, 283 (1993).
This is not a case such asPeople v Kean, 204 Mich App 533 (1994), in which a defendant
was not entitled to the benefit of the plea bargain when he failed to comply with the requirement
of treatment in a rehabilitation center. Mr. Harris violation of his part of the bargain was not a
voluntary refusal, but rather one his indulgency made impossible. Such a condition on avoiding
incarceration is a constitutional violation of equal protection. Williams v Illinois, 399 US 235
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(1970). Bearden v Georgia, 416 US 660 (1983); See also,In re Antazo, 3 Cal 3d 100; 473 P 2d
999 (1970) (Cited inBearden 76 L Ed 2d at 231).
Alternatively, the trial courts denial of Defendants request for more time to try to raise
the requested payments before sentencing violated the agreement as fairly interpreted by the
defendant. In re valle, 364 Mich 471, 477-478 (1961). (ST 4). Indeed, it is contrary to
Michigan law that a defendant be punished for a failure to pay restitution unless there is an
absence of good faith efforts. See MCL 769.1a(11) (parole or probation may be revoked only if
defendant has not made good faith efforts to comply).
This is an issue of first impression but one which is firmly grounded in well established
law. The crux of the issue is whether greater punishment can be inflicted on a defendant due to
their inability to make agreed upon payments with a stated time period. This is not an issue of
good faith as the Court agreed to accept the offer of proof that Mr. Harris had worked hard and
had been unable to get more than half the money due substantially to a physical incapacitation.
It makes no difference how the agreed upon sum to be paid was reached. The simple fact is that
if we do not have debtors prisons, no defendant should be sent to prison due solely to their lack
of money at the time.
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IV. THE TRIAL COURT ERRONEOUSLY ADOPTED THE CHILDSUPPORT ARREARAGE IN FAMILY COURT AS THE RESTITUTION AWARDDESPITE ITS FAILURE TO FIND THAT THIS AMOUNT WAS ALL THE RESULTOF CRIMINAL CONDUCT.
STANDARD OF REVIEW: Issues interpreting statutes, court rules andconstitutional provisions are issues of law which this court reviews denovo. People v Houstina, 216 Mich App 70 (1996).
PRESERVATION OF ISSUE: Defendant preserved this issue forappeal by raising it in a motion for resentencing or plea withdrawal. MCR6.310(C).
Mr. Harris adopts by reference his prior arguments that his failure to make ordered
support payments was not criminal if his indigence made it impossible for him to do so. He also
adopts his prior arguments that the civil court determinations of his arrearages was neither a
determination of what it was, in fact, possible for his to may in any given month nor a
procedurally adequate process to make the determinations for inclusion in a criminal judgment.
The trial court set the amount of restitution in this case at $12,781.39, based upon the
Friend of the Court calculation of his total support arrearage. (PSI at 2). As part of his motion
for resentencing, Mr. Harris argued that there was no determination that he was able to make any
of the support payments he had missed (MT 21, 31). The uncontradicted evidence before the
court showed that he had chronic back problems which had left him at times bedridden. (PSI at
1). Mr. Harris had argued at sentencing that he had pay support until the prior year when he lost
his job and was having a hard time. (ST 9-10). He had paid at least $2,500 in 2004, $7,775 in
2005; $9093 in 2006; and $2,275 in 2007. (See Appendix H to Mr. Harris Court of Appeals
application).
In rejecting the argument that the Court had erred in adopting the family divisions
calculation of the arrearage as the restitution, the Court acknowledged that its another
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complicated issue. (MT 32). The Court stated that its a point that probably is properly made.
The objection is noted. But here at this level, the court is denying relief on that basis. (MT 33).
The restitution statutes limit restitution for financial loss to cases in which a crime
results in damage to or loss or destruction of property of a victim of the crime. MCL
780.766(3), MCL 769.1a(3). It is true that the restitution is not limited to the specific conviction
offense if there was a course of criminal conduct which caused the victim or other similar
victims additional losses. People v Gahan, 456 Mich App 264 (1997). But the point here is that
any losses to the victim as a result of missed support payments were the result of a course of
criminal conduct only if the Defendant had refused to make payments with money he had
available or was reasonably capable of earning. The prosecutor has the burden of proving by a
preponderance of the evidence the amount of restitution. MCL 780.767(4).
Defendant contested the restitution as exceeding the amount of loss due to any criminal
conduct on his part. The trial court made no finding by a preponderance of the evidence
supporting the restitution award. This court should remand for a determination of the amount of
restitution is warranted by the statutory standards or loss and burden of proof.
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SUMMARY AND RELIEF
WHEREFORE, Defendant-Appellant asks that this Honorable Court grant this
application and vacate his plea; or, in the alternative, hold the case in abeyance pending its
resolution in theLikine case; or remand for a restitution hearing; or such other relief as the Court
deems appropriate.
Respectfully submitted,
STATE APPELLATE DEFENDER OFFICE
BY: ________________________________________Rolf E. Berg (P26758)Assistant Defender101 North Washington14th FloorLansing, MI 48913(517) 334-6069
Dated: July 30, 2010