The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 14, 2022
Plaintiff-Appellee,
v No. 356610
Ingham Circuit Court
GOLDEN G. HIGGWE, LC No. 14-001096-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and MURRAY and O’BRIEN, JJ.
PER CURIAM.
Defendant appeals by leave granted1 the trial court’s revocation of his probation on the
basis of his failure to pay restitution. Defendant pleaded guilty to five counts of Medicaid fraud,
MCL 400.607(1) (false claim); 13 counts of healthcare fraud, MCL 752.1003(1); and one count of
unauthorized practice of medicine, MCL 333.16294. Defendant was originally sentenced as a
second habitual offender, MCL 769.10, to serve 365 days in jail and five years of probation; he
was ordered to pay restitution and other court costs as a condition of his probation. Defendant
subsequently pleaded guilty to violating his probation by failing to pay restitution, and the trial
court accepted his plea, revoked probation, and sentenced defendant to serve 23 to 48 months in
prison. On appeal, defendant argues that he did not knowingly and intelligently waive his right to
counsel, and that the trial court failed to properly assess whether payment of restitution would
cause defendant manifest hardship and whether defendant willfully failed to pay his restitution
before imposing this sentence. We vacate the trial courts restitution order, and the matter is
remanded for the trial court to make specific findings under MCR 6.425(D)(3).
I. RELEVANT FACTS
1
People v Higgwe, unpublished order of the Court of Appeals, entered May 5, 2021 (Docket No.
356610).
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As a condition of his probation, defendant was ordered in 2015 to pay $13,049.80 in
restitution and $4,170.00 in court fees and costs. Defendant and his codefendant were jointly and
severally liable for the restitution payment.
In 2019, defendant’s probation officer filed a request and summons for probation violation,
alleging that defendant violated the terms of his probation by failing to make any payments toward
his restitution and making no other payments other than a $1,000 bond distribution payment in
2015. At defendant’s first probation violation hearing in October 2019, the trial court informed
defendant of his rights, including his right to appointed counsel, and stated that because defendant
“need[ed] an attorney,” the trial court would appoint defendant an attorney for the next hearing.
At defendant’s second probation violation hearing in early November 2019, the trial court
asked defendant whether he had met with his court-appointed attorney, to which defendant said he
had not because no one came to meet with him. In response, the trial court stated, “So you still
wish to have an attorney, I assume, right?” Defendant replied, “I don’t think so. This is your
court. I don’t think I need any, sir.” Defendant’s probation officer informed the trial court that
defendant’s 2015 presentence investigation report (PSIR) stated that during an interview to prepare
defendant’s PSIR, defendant stated he had no intention of paying restitution. The trial court stated
it was going to give defendant “another chance,” and again informed him of his rights, including
his right to an attorney. The trial court then asked defendant if he understood his rights, to which
defendant responded yes. Defendant pleaded guilty to failing to pay his restitution, and the trial
court found that his plea was understanding and voluntarily made.
At a hearing in late November 2019, defendant again was not represented by counsel, and
the trial court again asked defendant if he wished to have an attorney, to which defendant
responded, “No, Your Honor.” Nevertheless, the trial court adjourned the hearing so defendant
could be assigned appointed counsel. Defendant was represented at a hearing in December 2019.
At this hearing, defendant’s attorney informed the trial court that defendant was having financial
difficulties but was mailing $20 per month in envelopes provided by the Department of Corrections
(DOC). Defendant wrote the word “restitution” on these envelopes and thought these payments
were paying off his restitution. The trial court released defendant to see if he could make “some
substantial efforts towards paying or not. That’s why I’m adjourning sentencing or he has to go
to prison. It’s that simple.”
At defendant’s sentencing hearing in June 2020, defendant informed the trial court that he
did not make payments toward his restitution because he thought his codefendant had paid the
restitution. Defendant received a receipt from the courthouse cashier that he believed indicated
his balance was zero dollars. Defendant stated that he intended on paying his restitution, but after
receiving the receipt from the court cashier, and learning from his lawyer that he did not have to
send any money, he did not pay his restitution. The trial court clarified that a “zero balance” on
the receipt meant that defendant had made zero payments. Further, defendant’s attorney stated
that he informed defendant that he still owed money, and also if defendant did not pay, he might
go to prison, but that defendant misunderstood this. Additionally, defendant’s attorney stated
defendant could not afford to pay his restitution of more than $13,000 when he was earning only
$800 per month, taking into account his child support obligation and living expenses.
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The trial court found that because defendant failed to make any payments when he was
employed, defendant was “able to make payments in this matter” but chose not to. Specifically,
the trial court stated the following:
So it’s been five years. He’s had various employments. So the Court finds
he’s been employed throughout this time period. And whenever we had show
causes he was employed, and he has never, ever made one payment. The Court
finds that he was qualified and was able to make payments in this matter and simply
was following through on his initial statement at the time of the conclusion of the
case; that he had no plans on paying any restitution and would rather go to jail.
Defendant subsequently filed a motion for plea withdrawal, arguing that he did not
knowingly or intelligently waive his right to counsel, and that the trial court failed to properly
assess defendant’s ability to pay before sentencing him. The trial court denied defendant’s motion.
II. ANALYSIS
A. WAIVER OF COUNSEL
Defendant argues that his waiver of his right to counsel was not knowingly and intelligently
made, and as a result, he should be permitted to withdraw his probation violation plea.
“When assessing the validity of a defendant’s waiver of the right to counsel, we review de
novo the entire record to determine whether the trial court’s factual findings regarding the waiver
were clearly erroneous.” People v Willing, 267 Mich App 208, 218; 704 NW2d 472 (2005). This
Court reviews de novo a ruling involving an interpretation of the law or application of a
constitutional standard to uncontested facts. Id. at 219. “A trial court’s decision on a motion to
withdraw a plea is reviewed for an abuse of discretion.” People v Cole, 491 Mich 325, 329; 817
NW2d 497 (2012).
Defendants have a constitutional right to proceed in propria persona in any criminal
proceeding, or to be represented by counsel. People v Belanger, 227 Mich App 637, 641; 576
NW2d 703 (1998). This right extends to probation revocation hearings. Id. However, defendants
in probation revocation hearings do not have the same constitutional rights guaranteed in a criminal
trial. Id. at 643. “Probation revocation proceedings are summary and informal and are not subject
to the rules of evidence or of pleadings applicable in criminal trials.” Id. This is because probation
revocation hearings are not a stage of criminal prosecution and do not require a formal hearing “if
the probationer admits at a preliminary hearing the alleged violations, and those violations are
found by the court to be reasonable grounds for revoking probating under the law.” People v Rial,
399 Mich 431, 436; 249 NW2d 114 (1976).
MCR 6.445 provides, in relevant part, procedures required at a probation revocation
hearing:
(B) Arraignment on the Charge. At the arraignment on the alleged
probation violation, the court must
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* * *
(2) advise the probationer that
(a) the probationer has a right to contest the charge at a hearing, and
(b) the probationer is entitled to a lawyer’s assistance at the hearing and at
all subsequent court proceedings, and that the court will appoint a lawyer at public
expense if the probationer wants one and is financially unable to retain one,
(3) if requested and appropriate, refer the matter to the local indigent
criminal defense system’s appointing authority for appointment of a lawyer,
* * *
(D) Continuing Duty to Advise of Right to Assistance of Lawyer. Even
though a probationer charged with probation violation has waived the assistance of
a lawyer, at each subsequent proceeding the court must comply with the advice and
waiver procedure in MCR 6.005(E).
* * *
(F) Pleas of Guilty. The probationer may, at the arraignment or afterward,
plead guilty to the violation. Before accepting a guilty plea, the court, speaking
directly to the probationer and receiving the probationer’s response, must
(1) advise the probationer that by pleading guilty the probationer is giving
up the right to a contested hearing and, if the probationer is proceeding without
legal representation, the right to a lawyer’s assistance as set forth in subrule
(B)(2)(b).
Pursuant to MCR 6.445, “due process is satisfied in a probation revocation proceeding if a
trial court advises a defendant of his right to counsel and the appointment of counsel, if he is
indigent, and determines if there is a knowing and intelligent waiver of that right.” Belanger, 227
Mich App at 647. “Factors to be considered when deciding whether defendant had made a
knowing waiver of his right to counsel are defendant’s age, education, prior criminal experience,
mental state, financial condition, and the various factors, pressures or inducements which led him
to admit the allegations against him without the assistance of counsel.” Id. at 646, quoting People
v Kitley, 59 Mich App 71, 76; 228 NW2d 834 (1975) (quotation marks omitted).
The trial court complied with the requirements of MCR 6.445 at the plea and sentencing
proceedings. At defendant’s first probation revocation hearing, the trial court asked defendant if
he was aware of the charges against him, informed defendant that he had a right to an appointed
attorney if he could not afford one, and informed defendant that he had a right to a contested
hearing, which complied with MCR 6.445(B)(2). Although defendant did not state whether he
wanted an attorney, the trial court determined that defendant needed an attorney and informed
defendant that it would assign him an attorney for the next hearing. At defendant’s second
probation revocation hearing, defendant’s attorney did not appear, and the trial court asked
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defendant, “So you still wish to have an attorney, I assume, right?” Defendant respondent, “I don’t
think so. This is your court. I don’t think I need any, sir.” The trial court then proceeded to ask
defendant if he was going to admit to the probation violation or if he wished to have a hearing on
his failure to pay, to which defendant replied, “Yes, sir. I have to make payments because I have
two jobs, not one job. I have two jobs.” The trial court’s actions complied with MCR 6.445(B)
and defendant’s waiver was knowingly and intelligently made. See Belanger, 227 Mich App at
648. Even though defendant’s responses may have indicated that he was initially confused, as he
argues on appeal, the trial court informed defendant of his rights a second time, confirmed again
that defendant did not want an attorney, and asked defendant if he understood this, to which
defendant responded “Yes, sir.”
In addition to complying with the procedural requirements of MCR 6.445, the factors cited
in Belanger demonstrate that defendant’s waiver was knowingly and intelligently made.
Defendant was in his 60s at the time of the June 17, 2020 sentencing hearing; he was highly
educated and had a doctoral degree in medicine; and he had a criminal history involving one count
of felony mail fraud from 2003 and 19 counts of medical fraud from 2015. These factors indicate
that defendant had a high degree of familiarity with the criminal justice system. See Belanger,
227 Mich App at 648. Further, there were no indications in the record that defendant was pressured
or induced to admit to these charges without the assistance of counsel, and the trial court even
double-checked to ensure defendant wanted to proceed with his plea without the assistance of
counsel. See id. Therefore, the trial court properly concluded that defendant’s waiver was
knowingly and intelligently made, and the trial court did not abuse its discretion by denying
defendant’s motion to withdraw his plea.
B. FAILURE TO PAY RESTITUTION
Defendant argues that the trial court failed to properly determine whether he was able to
pay his restitution, and as a result, improperly sentenced him to prison for failure to pay his
restitution.2
This Court reviews de novo questions of constitutional law, People v Jackson, 483 Mich
271, 277; 769 NW2d 630 (2009), and reviews findings of fact for clear error, People v
Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “Clear error exists if the reviewing court
is left with a definite and firm conviction that the trial court made a mistake.” People v Armstrong,
490 Mich 281, 289; 806 NW2d 676 (2011).
“[A] sentence that exposes an offender to incarceration unless he pays restitution or some
other fine violates the Equal Protection Clauses of the federal and state constitutions because it
results in unequal punishments for offenders who have and do not have sufficient money.” People
2
Although defendant has apparently been released from prison and is on supervised parole, his
appellate arguments are not moot. A paroled prisoner is still technically in the custody of the
DOC, which constitutes execution of a sentence imposed by a court. See People v Warren, 505
Mich 196, 202 n 1; 949 NW2d 125 (2020) and People v Raihala, 199 Mich App 577, 579; 502
NW2d 755 (1993).
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v Collins, 239 Mich App 125, 135-136; 607 NW2d 760 (1999), citing US Const, Am XIV; Const
1963, art 1, § 2. As a result, a defendant cannot be incarcerated for failure to pay restitution unless
the failure to pay was willful. Id., citing MCL 769.1a(14). MCL 769.1a(14) states:
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.
Similarly, MCR 6.425(D) states, in relevant part:
(3) Incarceration for Nonpayment.
(a) The court shall not sentence a defendant to a term of incarceration, nor
revoke probation, for failure to comply with an order to pay money unless the court
finds, on the record, that the defendant is able to comply with the order without
manifest hardship and that the defendant has not made a good-faith effort to comply
with the order.
* * *
(c) Determining Manifest Hardship. The court shall consider the following
criteria in determining manifest hardship:
(i) Defendant’s employment status and history.
(ii) Defendant’s employability and earning ability.
(iii) The willfulness of the defendant’s failure to pay.
(iv) Defendant’s financial resources.
(v) Defendant’s basic living expenses including but not limited to food,
shelter, clothing, necessary medical expenses, or child support.
(vi) Any other special circumstances that may have bearing on the
defendant’s ability to pay.[3]
3
See also MCL 769.1a(11), which states, in relevant part:
In determining whether to revoke probation or parole or impose imprisonment, the
court or parole board shall consider the defendant's employment status, earning
ability, and financial resources, the willfulness of the defendant's failure to pay, and
any other special circumstances that may have a bearing on the defendant's ability
to pay.
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An ability-to-pay assessment is necessary when the imposition of court fines or costs “is
enforced and the defendant contests his ability to pay.” Jackson, 483 Mich at 298. Further,
determining an individual’s “indigency is an individualized assessment,” that is determined “at the
time of enforcement” of payment. Id. at 296. A “defendant bears a heavy burden of establishing
his extraordinary financial circumstances.” Id.
Although we sympathize with the trial court’s rationale for holding that defendant failed to
comply with the restitution order, in doing so the court failed to analyze on the record the factors
that must be analyzed under MCR 6.425(D)(3). That rule requires that the court consider at least
six factors in determining whether defendant could comply with the restitution order absent
manifest hardship. See MCR 6.425(D)(3)(i)-(vi) (repeated use of “shall” in describing a trial
court’s duty to determine manifest hardship) and Lakeshore Group v Dep’t of Environmental
Quality, 507 Mich 52, 64; 968 NW2d 251 (2021) (“The term ‘shall’ indicates that conduct is
mandatory”). Although the court considered the willfulness of defendant’s failure to pay, and
employment history (at least generally), it did not discuss or address defendant’s earning ability,
financial resources, basic living expenses or other relevant factors, despite there being some
evidence relative to those factors in the record. It could well be that the court did consider this
evidence and these factors, but it did not do so on the record, and thus failed to comply with the
court rule, which also hampers our review of its decision.4 Thus, we must vacate the decision and
remand for the trial court to address the evidence that is relevant under the factors contained in
MCR 6.425(D)(3).
The restitution order is vacated, and the matter is remanded for the trial court to make
specific findings under MCR 6.425(D)(3). We do not retain jurisdiction.
/s/ Amy Ronayne Krause
/s/ Christopher M. Murray
/s/ Colleen A. O’Brien
4
The trial court properly considered defendant’s statement from five years earlier that he would
not pay the restitution ordered, and that defendant had been employed at the time of each of the
several probation violation hearings, and had been making minimal payments towards his DOC
payments. But, despite recognizing these relevant facts, the court did not tie them to the criteria
within MCR 6.425(D)(3).
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