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Application for Leave to Appeal SC 23852

Application for Leave to Appeal SC 23852

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Published by Mark Jackson
Application for Leave to Appeal in the Case of People v. Harris for felony nonsupport pursuant to People v Adams, 262 Mich App 89 (2004) — holding that inability to pay is not a defense to the crime of felony non-support under MCL 750.165.
Application for Leave to Appeal in the Case of People v. Harris for felony nonsupport pursuant to People v Adams, 262 Mich App 89 (2004) — holding that inability to pay is not a defense to the crime of felony non-support under MCL 750.165.

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STATE APPELLATE DEFENDER Lansing Office

James R. Neuhard Director Dawn Van Hoek Chief Deputy Director Detroit/Lansing Jonathan Sacks Deputy Director Detroit

101 North Washington, 14th Floor • Lansing, Michigan 48913-0001 Phone: 517.334.6069 • Fax: 517.334.6987

Detroit (Main) Office

Suite 3300 Penobscot Building 645 Griswold Detroit, Michigan 48226-4281 Phone: 313.256.9833 • Fax: 313.965.0372 Client Calls: 313.256.9822 Website: www.sado.org

July 30, 2010

Clerk Michigan Supreme Court 925 West Ottawa, 4th Floor P. O. Box 30052 Lansing, MI 48913 Re: People v Scott Bennett Harris Supreme Court No. Court of Appeals No. 297182 Circuit Court No. 08-56761 FH

Dear Clerk: Enclosed please find the original and seven (7) copies of Notice of Hearing/Proof of Service and Application for Leave to Appeal for filing in your Court. Thank you for your cooperation. Sincerely,

Rolf E. Berg Assistant Defender REB.jd Enclosures cc: Muskegon County Prosecutor Court of Appeals Clerk (Grand Rapids) Muskegon County Circuit Court Clerk Scott Bennett Harris

STATE OF MICHIGAN IN THE SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, -vSCOTT BENNETT HARRIS, Defendant-Appellant. Supreme Court No. Court of Appeals No. 297182 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 this Honorable 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 LEAVE TO APPEAL to: Muskegon County Prosecutor 5th Floor, County Building 990 Terrace Muskegon, MI 49442 Clerk, Muskegon County Circuit Court County Building 990 Terrace Street Muskegon, MI 49442 _____________________________________ Rolf E. Berg Subscribed and sworn to before me July 30, 2010. _________________________________ Jean M. Downey Notary Public, Ingham County, Michigan My commission expires: 11/1/2014 IDEN NO. 23852P-G / Rolf E. Berg Clerk, Michigan Court of Appeals 350 Ottawa NW Grand Rapids, MI 49503

STATE OF MICHIGAN IN THE SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Supreme Court No. Plaintiff-Appellee, Court of Appeals No. 297182 -vCircuit 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 State Appellate Defender Office 101 North Washington, 14th Floor Lansing, 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 in People v Likine, ___Mich App ___ (dkt no. 290218, dec’d 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

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 the Likine case, or such other relief as the Court deems appropriate.

STATE OF MICHIGAN IN THE SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Supreme Court No. Plaintiff-Appellee, Court of Appeals No. 297182 -vCircuit 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 Defender State Appellate Defender Office 101 North Washington 14th Floor Lansing, MI 48913

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 CRIMININAL STATUTES IN THIS CASE ARE INCONSISTENT WITH A CONCLUSION THAT THE LEGISLATURE INTENDED TO CREATE A FELONY WITH NO DEFENSE OF INABILITY TO PAY.....................................................................5 THE PROHIBITION OF AN INABILITY-TO-PAY DEFENSE VIOLATES THE MICHIGAN AND FEDERAL DUE PROCESS CLAUSES AS INTERPRETED BY THE MICHIGAN SUPREME COURT IN CITY OF PORT HURON V JENKINSON..........................................................................................9 A. B. THE CIVIL PROCEEDINGS FOR DETERMINATION OF SUPPORT LEVELS DO NOT MAKE THE STATUTE CONSTITUTIONAL.........11 THE ELIMINATION OF A VOLUNTARY ACTUS REUS REQUIREMENT RENDERS THE STATUTE UNCONSTITUTIONAL. ....................................................................................................................14

II.

III.

THE TRIAL COURT ERRONEOUSLY DENIED MR. HARRIS’ MOTION TO WITHDRAW HIS PLEA AS HE WAS DENIED THE BENEFIT OF THE COBBS AGREEMENT AND INCARCERATED BASED UPON AN UNCONSTITUTIONAL CONSIDERATION OF HIS INDIGENCY.................18 THE TRIAL COURT ERRONEOUSLY ADOPTED THE CHILD SUPPORT ARREARAGE IN FAMILY COURT AS THE RESTITUTION AWARD DESPITE ITS FAILURE TO FIND THAT THIS AMOUNT WAS ALL THE RESULT OF CRIMINAL CONDUCT.................................................................21

IV.

SUMMARY AND RELIEF...........................................................................................................23 APPENDIX.....................................................................................................................................A REB*Application for leave to appeal SC 23852.doc*23852 Scott Bennett Harris

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 v Alabama, 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 v Adams, 262 Mich App 89 (2004)................................................................passim People v Beasley, 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 v Dowdy, No 138351; 2009 WL 2414918 (Mich Aug 6, 2009)..................................10, 13 People v Gahan, 456 Mich App 264 (1997).....................................................................22 People v Hill, 269 Mich.App 505 (2006)............................................................................5 People v Houstina, 216 Mich App 70 (1996)..................................................................5, 9, 18, 21 People v Jackson, 483 Mich 271 (2009).................................................................................16, 17 People v Kean, 204 Mich App 533 (1994).......................................................................19 i

People v Killebrew, 416 Mich 189 (1982)........................................................................19 People v Likine, ___ 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 v New, 427 Mich 482 (1986)...................................................................................9 People v Pasha, 466 Mich. 378 (2002)...............................................................................5 Robinson v Detroit, 462 Mich. 439; 613 NW2d 307 (2000)..............................................5 Smith v Dep't of Public Health, 428 Mich 540; 410 NW2d 749 (1987)...........................10 City of Port Huron v Jenkinson, 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 v Illinois, 399 US 235 (1970).............................................................................19 Zablocki v Redhail, 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

ii

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

iii

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 pleabased 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).

iv

STATEMENT OF QUESTIONS PRESENTED I. ARE THE PROVISIONS OF THE INTERTWINED CIVIL AND CRIMININAL STATUTES IN THIS CASE INCONSISTENT WITH A CONCLUSION THAT THE LEGISLATURE 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 THE MICHIGAN AND FEDERAL DUE PROCESS CLAUSES AS INTERPRETED BY THE 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 SUPPORT LEVELS 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 REUS REQUIREMENT 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 TO WITHDRAW HIS PLEA AS HE WAS DENIED THE BENEFIT OF THE COBBS AGREEMENT AND INCARCERATED BASED UPON AN UNCONSTITUTIONAL CONSIDERATION OF HIS INDIGENCY? Trial Court answers, "No". Defendant-Appellant answers, "Yes". Plaintiff-Appellee answered, "No". Court of Appeals answered, "No". v

IV.

DID THE TRIAL COURT ERRONEOUSLY ADOPT THE CHILD SUPPORT ARREARAGE IN FAMILY COURT AS THE RESTITUTION AWARD DESPITE ITS FAILURE TO FIND THAT THIS AMOUNT WAS ALL THE RESULT OF CRIMINAL CONDUCT? Trial Court answers, "No". Defendant-Appellant answers, "Yes". Plaintiff-Appellee answered, "No". Court of Appeals answered, "No".

vi

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 2003-020805DM). 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 prosecutor’s 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

1

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 of People v Adams, 262 Mich App 89, 100 (2004). (MT 29).

1

The Court later requested further briefing on that issue and ultimately issued an opinion denying that portion of the motion. Defendant filed a timely motion for reconsideration which was denied by the Court. (See docket entries). As Mr. Harris has since been paroled, he is not pursuing that sentencing issue in this application and these proceedings are relevant only to the timing of his application to this Court. 2

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 vacationer’s 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 couldn’t come up with the money rather than conduct an evidentiary hearing. But it found that this wasn’t 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 division’s calculation of the arrearage as the restitution, the Court acknowledged that “its another complicated issue.” (MT 32). The Court stated that “it’s 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).

3

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.

4

I. THE PROVISIONS OF THE INTERTWINED CIVIL AND CRIMININAL STATUTES IN THIS CASE ARE INCONSISTENT WITH A CONCLUSION THAT THE LEGISLATURE INTENDED TO CREATE A FELONY WITH NO DEFENSE OF INABILITY TO PAY. STANDARD OF REVIEW: Issues interpreting statutes, court rules and constitutional provisions are issues of law which this court reviews de novo. People v Houstina, 216 Mich App 70 (1996). PRESERVATION OF ISSUE: Defendant preserved this issue for appeal by raising it in a motion for resentencing or plea withdrawal. MCR 6.310(C). In People v Adams, 262 Mich App 89, 100 (2004), this Court interpreted the felony nonsupport 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 also Pasha, 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, in Bush 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 that the legislative intent is correctly ascertained. The statute must be interpreted in an manner that ensures that it works in harmony with the entire statutory scheme. Moreover, courts must pay particular attention to statutory amendments, because a change in statutory language is presumed to reflect either a legislative change in 5

the meaning of the statue itself or a desire to clarify the correct interpretation of the original statute. Finally, an analysis of a statute's legislative history is an important tool in ascertaining legislative intent. [Footnotes omitted.] The meaning of the felony non-support statute, MCL 750.165, cannot be determined by reading the statute in isolation. Indeed, the statute fails to define any offense without the incorporation of orders entered pursuant to the support and parenting time enforcement act, MCL 552.601to 552.650.2 Sec. 165. (1) If the court orders an individual to pay support for the individual's former or current spouse, or for a child of the individual, and the individual does not pay the support in the amount or at the time stated in the order, the individual is guilty of a felony punishable by imprisonment for not more than 4 years or by a fine of not more than $2,000.00, or both. MCL 750.165(1). The Support and Parenting Time Enforcement Act (hereafter SPTEA) also contains contempt provisions to enforce the same support statutes. But this statute makes explicit that a person with a support arrearage cannot be jailed absent a finding that “the payer has the capacity to pay out of currently available resources some or all of the amount due.” MCL 552.633. Other provisions of the present felony statute make it apparent that the intent was also to enforce the support statutes rather than an intent to punish willful violations rather than violations of those who cannot pay. First the unique bail provisions copy the provisions of the civil contempt provisions of the SPTEA in a manner which reflects the civil interest in forcing payment rather than the criminal interest in holding only those who are dangerous or unlikely to appear for further proceedings. Specifically the provisions of both condition release on the posting of a bond to assure payment of the support arrearage. Compare MCL 750.165(3) and MCL 552.632.

2

This incorporation is implicit the reference to “court orders … to pay support” in the definition of the offense in MCL 750.165(1) and explicit in the enforcement provisions. MCL 750.165(3). 6

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 be imprisoned, jailed, or incarcerated for a violation of probation or parole or otherwise for failure to pay restitution as ordered under this section unless the court or parole board determines that the defendant has the resources to pay the ordered 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 in People v Monaco, 474 Mich 48 (2006), the statutory scheme as interpreted in Adams, supra, fails still more dramatically to reflect a harmonious statutory scheme as required by Bush 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 7

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. Defendant’s post conviction motion challenged the interpretation of the felony nonsupport 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 of People v Adams, 262 Mich App 89, 100 (2004). (MT 29).

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II. THE PROHIBITION OF AN INABILITY-TO-PAY DEFENSE VIOLATES THE MICHIGAN AND FEDERAL DUE PROCESS CLAUSES AS INTERPRETED BY THE MICHIGAN SUPREME COURT IN CITY OF PORT HURON V JENKINSON. STANDARD OF REVIEW: Issues interpreting statutes, court rules and constitutional provisions are issues of law which this court reviews de novo. People v Houstina, 216 Mich App 70 (1996). PRESERVATION OF ISSUE: Defendant preserved this issue for appeal by raising it in a motion for resentencing or plea withdrawal. MCR 6.310(C). Moreover, a defendant’s plea does not waive a challenge to the constitutionality 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 in People 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 of People v Likine, followed the Adams case with the same flawed reasoning. People v Likine, ___ Mich App ___ (dkt no. 290218, dec’d 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 Likine presented in the pending application for leave to appeal that decision. (See appended Application for leave to appeal in People 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

9

or interpret a statute in an unconstitutional manner. As our supreme court stated in Smith v Dep’t 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 by the state which violate the state constitution by cloaking such behavior with statutory 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 in Adams, which it did not, it certainly would have recognized that it does not have the authority to overrule or to ignore the Michigan Supreme Court’s 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 the Jenkinson 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 on Jenkinson 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 also id. at *5 n22 (Hathaway, J, dissenting). Tellingly, the Court in Jenkinson 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.’”). 10

Notice would not have cured the constitutional defect either. While the Jenkinson 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 misreads Jenkinson and therefore improperly attempts to distinguish Jenkinson on the facts. A. THE CIVIL PROCEEDINGS FOR DETERMINATION OF SUPPORT LEVELS DO NOT MAKE THE STATUTE CONSTITUTIONAL. In People 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 11

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.” (Appellee’s 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) (citing Addington 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 right to 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 judge’s 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 O’Harrah, 262 SW2d at 388). Thus there is no support for a claim that the Family Court’s findings are sufficient bases to establish criminal liability under MCL 750.165. The prosecution cites no such authority because all authority holds otherwise. In Dowdy, 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. See Dowdy, 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 13

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 REUS REQUIREMENT 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 Defendant’s inability to pay due to insufficient funds as a voluntary act. The prosecution’s 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. 14

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. (Appellee’s Brief at 19.) As discussed in Section I(B), supra, the Legislature does not determine what is constitutional. Nor is it the prosecution’s 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 noncriminal contexts, when they prohibit defendants from presenting evidence of their inability to comply with the duty imposed by the State. In both Zablocki v Redhail, 434 US 374; 98 S Ct 673; 54 L Ed 2d 618 (1978), and Bearden 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 the failure to make provision for those without the means to comply with 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 by Adams, a case whose application is under constitutional scrutiny in the present case. Lastly, in its recent decision in People v Jackson, 483 Mich 271 (2009), the Michigan Supreme Court further delineated when courts must assess a defendant’s ability to pay. Jackson involved the assessment of attorney’s fees on criminal defendants under MCL 769.1k, which the Court noted, was “not limited by reference to a defendant’s 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 defendant’s 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 Court’s issuance of a child support order imposes a fee on the defendant. When the State chooses to charge a defendant like 16

Defendant under MCL 750.165, it begins an enforcement action. Under Jackson 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. HARRIS’ MOTION TO WITHDRAW HIS PLEA AS HE WAS DENIED THE BENEFIT OF THE COBBS AGREEMENT AND INCARCERATED BASED UPON AN UNCONSTITUTIONAL CONSIDERATION OF HIS INDIGENCY. STANDARD OF REVIEW: Issues interpreting statutes, court rules and constitutional provisions are issues of law which this court reviews de novo. People v Houstina, 216 Mich App 70 (1996). PRESERVATION OF ISSUE: Defendant preserved this issue for appeal by raising 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 18

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 vacationer’s 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 couldn’t come up with the money rather than conduct an evidentiary hearing. But it found that this wasn’t 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 as People 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 19

(1970). Bearden v Georgia, 416 US 660 (1983); See also, In re Antazo, 3 Cal 3d 100; 473 P 2d 999 (1970) (Cited in Bearden 76 L Ed 2d at 231). Alternatively, the trial court’s denial of Defendant’s 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 debtor’s 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 CHILD SUPPORT ARREARAGE IN FAMILY COURT AS THE RESTITUTION AWARD DESPITE ITS FAILURE TO FIND THAT THIS AMOUNT WAS ALL THE RESULT OF CRIMINAL CONDUCT. STANDARD OF REVIEW: Issues interpreting statutes, court rules and constitutional provisions are issues of law which this court reviews de novo. People v Houstina, 216 Mich App 70 (1996). PRESERVATION OF ISSUE: Defendant preserved this issue for appeal by raising it in a motion for resentencing or plea withdrawal. MCR 6.310(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 division’s 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 “it’s 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 the Likine 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 Defender 101 North Washington 14th Floor Lansing, MI 48913 (517) 334-6069 Dated: July 30, 2010

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