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158716 - People v Gary Gilmore

The People of the State of Michigan,

 

Amanda Smith

 

Plaintiff-Appellee,

 

v

(Appeal from Ct of Appeals)

 

 

(Wayne – Callahan, J.)

 

Gary Gilmore,

 

Steven Helton

 

Defendant-Appellant.

 

Summary

In 2016, defendant was involved in a scheme to alter UPC codes on items at Home Depot to reflect lower prices and then return the items without a receipt for a credit at the original price. He pleaded guilty to organized retail crime and using a computer to commit a crime in exchange for, among other things, a sentence agreement to serve probation and a jail term, and to pay $18,000 in restitution. Defendant admitted at the plea hearing that the total amount stolen was less than $400.” When defense counsel asked whether defendant was entitled to a hearing on the amount of restitution, the trial court denied the request. At sentencing, the trial court stated that it would not abide by the sentencing agreement and offered defendant the opportunity to withdraw the plea. Defendant chose not to withdraw the plea and was sentenced to serve concurrent prison terms of probation for the conviction of organized retail crime and thirty months to seven years for the conviction of using a computer to commit a crime. Defendant was also ordered to pay $18,000 in restitution. On appeal, defendant argued that he was entitled to a restitution hearing. In a split decision, the Court of Appeals denied leave to appeal. The Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted of whether defendant waived the question of entitlement to a hearing on the amount of restitution, and if not, whether the trial court erred in denying him such a hearing. On remand, the Court of Appeals affirmed, holding that because defendant failed to affirmatively request a hearing on restitution, the issue was not preserved for appeal, and that defendant had waived his right to a hearing. The Supreme Court has ordered oral argument on defendant’s application for leave to appeal to address:  (1) whether defendant waived the question of his entitlement to an evidentiary hearing regarding the amount of restitution, compare People v Gahan, 456 Mich 264, 276 (1997), with People v Carter, 462 Mich 206, 215 (2006); and if not, (2) whether the Wayne Circuit Court erred in denying defendant such a hearing. See People v McKinley, 496 Mich 410 (2014). ​