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).