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Ingham Circuit Court. LC No. 13-000362-FH.
For PEOPLE OF MI, Plaintiff-Appellee: JOSEPH B FINNERTY, LANSING MI.
For LINDSEY LYNN KONOPKA, Defendant-Appellant: JEANICE DAGHER-MARGOSIAN, LANSING MI.
Before: RIORDAN, P.J., and MURPHY and BOONSTRA, JJ.
[309 Mich.App. 348] ON REMAND
Mark T. Boonstra, J.
Defendant pleaded guilty to first-degree retail fraud, MCL 750.356c, and conspiracy to commit first-degree retail fraud, MCL 750.157a. On July 17, 2013, the trial court sentenced defendant as a second habitual offender, MCL 769.10, to one and one-half to five years' imprisonment for the first-degree retail fraud conviction and two to five years' imprisonment for the conspiracy to commit first-degree retail fraud conviction. The trial court additionally ordered defendant to pay court costs in the amount of $500.
[309 Mich.App. 349] I. PROCEDURAL HISTORY
Defendant filed a delayed application for leave to appeal, arguing that her sentence was invalid because the departure and the extent of the departure were not supported by legally valid reasons and because the trial court did not correctly advise her regarding her rights of appeal. This Court denied the delayed application for leave to appeal for lack of merit in the grounds presented.
Defendant then applied for leave to appeal in the Michigan Supreme Court, raising the same issues asserted in her delayed application in this Court. Defendant also filed a motion in the Supreme Court seeking to add an issue, and requesting leave to file a supplemental brief concerning the trial court's imposition of court costs. On September 19, 2014, the Supreme Court entered an order that stated:
On order of the Court, the motion to add issue and file supplemental brief is GRANTED. The application for leave to appeal the February 21, 2014 order of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration of whether the circuit court improperly imposed court costs, in light of our decision in People v Cunningham, 496 Mich. 145 [852 N.W.2d 118] (2014), and if so, whether the circuit court's assessment of $500 in " court costs" constitutes plain error affecting the defendant's substantial rights. Contrast People v Franklin, 491 Mich. 916; 813 N.W.2d 285 (2012), with Johnson v United States, 520 U.S. 461, 467-468 [117 S.Ct. 1544; 137 L.Ed.2d 718] (1997).
We direct the Court of Appeals' attention to the fact that we have also remanded People v Holbrook (Docket No. 149005) [Court of Appeals Docket No. 319565] to the [309 Mich.App. 350] Court of Appeals for consideration of similar issues. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court. [ People v Konopka, 497 Mich. 863, 863-864; 852 N.W.2d 903 (2014).
On remand from our Supreme Court, defendant argued that the trial court's imposition of costs was improper in light of
Cunningham. In response, the prosecution argued that the imposition of costs was proper in light of the Legislature's post- Cunningham amendment of MCL 769.1k. Defendant replied that this Court should disregard the prosecution's response because the Legislature's post- Cunningham amendment of MCL 769.1k was not within the scope of the Supreme Court's remand order. Defendant further suggested, without fully articulating her position, that " possible responsive arguments" could be made concerning the constitutionality of the Legislature's post- Cunningham amendment of MCL 769.1k. This Court subsequently ordered supplemental briefing concerning the constitutional arguments suggested in defendant's reply brief on appeal. In compliance with that order, the parties filed supplemental briefs addressing those constitutional issues.
We now consider defendant's challenges to the imposition of court costs and conclude that the trial court possessed the authority under MCL 769.1k, as amended by 2014 PA 352, to order defendant to pay court costs. However, we remand to the trial court to establish whether the court costs imposed were " reasonably [309 Mich.App. 351] related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case," MCL 769.1k(1)(b)( iii), as amended by 2014 PA 352, or to adjust that amount as may be appropriate. We reject defendant's constitutional challenges to the amended version of MCL 769.1k.
II. MCL 769.1k AND CUNNINGHAM
We first are obliged to consider--and we reject--defendant's suggestion that we should not consider the prosecution's position regarding the effect of the Legislature's post- Cunningham amendment of MCL 769.1k. Certainly it is true, as defendant points out, that the legislative amendment was not within the stated scope of the Supreme Court's remand order. But it is obvious that a post- Cunningham legislative amendment could not have been addressed within the text of an order that was issued before the post- Cunningham legislative amendment was even enacted. It is also true--and we specifically hold--that the subject matter of the legislative amendment is so inextricably tied to the subject matter of the decision in Cunningham that it is appropriate for us to consider them in conjunction with each other, and in fact, it would be inappropriate for us to do otherwise.
At the time of sentencing, and at the time of defendant's commission of the offenses giving rise to sentencing, MCL 769.1k provided, in relevant part:
(1) If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or [309 Mich.App. 352] trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred pursuant to statute or sentencing is delayed pursuant to statute:
(a) The court shall impose the minimum state costs as set forth in section 1j of this chapter.
(b) The court may impose any or all of the following:
( i ) Any fine.
( ii ) Any cost in addition to the minimum state cost set forth in subdivision (a).
( iii ) The expenses of providing legal assistance to the defendant.
( iv ) Any assessment authorized by law.
( v ) Reimbursement under section 1f of this chapter. [MCL 769.1k, before amendment by 2014 PA 352 (emphasis added).]
In People v Sanders, 296 Mich.App. 710, 715; 825 N.W.2d 87 (2012) ( Sanders I ), overruled in part by People v Cunningham, 496 Mich. 145; 852 N.W.2d 118 (2014), this Court held " that a trial court may impose a generally reasonable amount of court costs under MCL 769.1k(1)(b)( ii ) without the necessity of separately calculating the costs involved in the particular case . . . ." Because the trial court in Sanders I did not adequately explain the factual basis for its award of $1,000 in court costs, this Court remanded the case " in order to facilitate meaningful appellate review of the reasonableness of the costs assessed defendant." Sanders I, 296 Mich.App. at 715. In People v Sanders (After Remand), 298 Mich.App. 105, 108; 825 N.W.2d 376 (2012) ( Sanders II ), this Court expressed satisfaction " that the trial court complied with our directives on remand and did establish a sufficient factual basis to conclude that $1,000 in court costs under MCL 769.1k(1)(b)( ii ) is a reasonable amount in a felony case conducted in the Berrien Circuit Court."
[309 Mich.App. 353] In Cunningham, 496 Mich. at 147, our Supreme Court held that MCL 769.1k(1)(b)( ii ) did not provide courts with the " independent authority to impose costs upon criminal defendants." Rather, " MCL 769.1k(1)(b)( ii ) provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute." Cunningham, 496 Mich. at 147, 154. The Cunningham Court reasoned that while MCL 769.1k allowed courts to impose " any cost in addition to the minimum state cost," the statute also specifically authorized courts to impose other costs, including the expense of providing legal assistance to the defendant and any costs incurred in compelling the defendant's appearance. Cunningham, 496 Mich. at 154. These additional cost provisions would have been unnecessary if MCL 769.1k(1)(b)( ii ) provided courts with the independent authority to impose " any cost." Id. at 154-155. Further, when the Legislature enacted MCL 769.1k, " numerous statutes provided courts with the authority to impose specific costs for certain offenses." Cunningham, 496 Mich. at 156. Therefore, " [i]nterpreting MCL 769.1k(1)(b)( ii ) as providing courts with the independent authority to impose 'any cost' would essentially render the cost provisions within those statutes nugatory . . . ." Cunningham, 496 Mich. at 156. The Court noted that the Legislature has continued to enact provisions authorizing courts to impose particular costs for certain offenses, which again suggests that the Legislature did not intend for MCL 769.1k(1)(b)( ii ) to provide courts with independent authority to impose " any cost." Cunningham, 496 Mich. at 156-157.
The Court further noted that if it held that MCL 769.1k(1)(b)( ii ) provided courts with the independent authority to impose " any cost," then MCL 769.1k(1)(b)( i ) would logically provide courts with the [309 Mich.App. 354] independent authority to impose " any fine." Cunningham, 496 Mich. at 157. If courts could impose " any fine" without regard to the limitations set forth in other statutes, statutory provisions that fix the amount of fines would be nullified.
Id. Thus, the conclusion that MCL 769.1k(1)(b)( i ) did not provide independent authority to impose " any fine" supported the similar conclusion that MCL 769.1k(1)(b)( ii ) did not provide independent authority to impose " any ...