application for leave to appeal sc 23852

8/7/2019 Application for Leave to Appeal SC 23852

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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


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


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


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?


B. DOES THE ELIMINATION OF A VOLUNTARY ACTUS REUSREQUIREMENT RENDER THE STATUTE UNCONSTITUTIONAL?


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?


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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?


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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.


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.


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.


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,


BY: ________________________________________Rolf E. Berg (P26758)Assistant Defender101 North Washington14th FloorLansing, MI 48913(517) 334-6069

Dated: July 30, 2010

application for leave to appeal sc 23852

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