April 21, 2015
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
JASON THOMAS JUNTIKKA, Defendant-Appellant.
Houghton Circuit Court LC No. 2013-002677-FH
Before: O'Connell, P.J., and Fort Hood and Gadola, JJ.
At issue in this case is whether a trial court properly imposed a $100 probation enhancement fee upon defendant under MCL 771.3. Because we conclude that MCL 771.3(2)(d) does not independently authorize trial courts to impose any assessment, and because we conclude that the probation enhancement fee was not statutorily authorized as a cost specifically incurred in defendant's case, we vacate the portion of the court's order imposing the probation enhancement fee and remand for further proceedings.
On January 23, 2013, defendant pleaded guilty to one count of failing to register as a sex offender, MCL 28.729. The trial court sentenced defendant to a five-year probationary term and 12 months in the county jail. The court additionally ordered defendant to pay several financial charges, including a $100 probation enhancement fee.
On August 6, 2013, defendant filed a motion for resentencing, contending, among other things, that the $100 probation enhancement fee was improper because it was an unauthorized assessment. The court denied defendant's motion, explaining that the probation enhancement fee covered items including "gloves so that the probation agents may test bodily fluids more safely" and "cell phones so that [agents] can quickly respond to issues that may arise." The trial court concluded that because defendant was on probation, the fee rendered him a potential benefit and so fell within the ambit of MCL 771.3(2)(d).
Following the denial of his motion, defendant filed an application for leave to appeal to this Court, which was denied. People v Juntikka, unpublished order of the Court of Appeals, entered December 6, 2013 (Docket No. 318300). Defendant then filed an application for leave to appeal to the Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to this Court for reconsideration as on leave granted in light of its decision in People v Cunningham, 496 Mich. 145; 852 N.W.2d 118 (2014). People v Juntikka, __Mich__; 846 N.W.2d 401 (2014). Accordingly, we now consider whether the trial court exceeded its statutory authority by imposing a $100 probation enhancement fee upon defendant.
II. STANDARD OF REVIEW
We review issues of statutory interpretation de novo. People v Akins, 259 Mich.App. 545, 551; 675 N.W.2d 863 (2003).
III. PRINCIPLES OF STATUTORY INTERPRETATION
When interpreting a statute, the primary goal is to discern and give effect to the intent of the Legislature. Koontz v Ameritech Servs, Inc, 466 Mich. 304, 312; 645 N.W.2d 34 (2002). In giving meaning to a statutory provision, we consider the provision within the context of the whole statute and "give effect to every word, phrase, and clause . . . [to] avoid an interpretation that would render any part of the statute surplusage or nugatory." State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich. 142, 146; 644 N.W.2d 715 (2002). When statutory terms are undefined, we interpret the terms according to their plain and ordinary meaning, and may consult dictionary definitions to accomplish this task. Koontz, 466 Mich. at 312.
Courts may only impose costs in a criminal case when such costs are authorized by statute. Cunningham, 496 Mich. at 149; People v Dilworth, 291 Mich.App. 399, 400; 804 N.W.2d 788 (2011). MCL 771.3 governs what conditions a trial court may impose during a term of probation, and provides in pertinent part the following:
(2) As a condition of probation, the court may require the probationer to do 1 or more of the following:
(c) Pay costs pursuant to subsection (5).
(d) Pay any assessment ordered by the court other than an assessment described in subsection (1)(f) [the crime victim's rights assessment].
(5) If the court requires the probationer to pay costs under subsection (2), the costs shall be limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.
Defendant first argues that the probation enhancement fee was not authorized by MCL 771.3(2)(d). To determine whether MCL 771.3(2)(d) applies to the fee at issue, we must first address whether the fee constituted an "assessment" under the statute. In People v Earl, 495 Mich. 33; 845 N.W.2d 721 (2014), our Supreme Court addressed the scope of the term "assessment" under the Crime Victim's Rights Act, MCL 780.751 et seq., and stated the following: " 'Assessment' is defined as 'the action or instance of assessing, ' and 'assess' is defined as 'to impose according to an established rate.' " Id. at 40, quoting Merriam-Webster's Collegiate Dictionary (8th ed). The Court concluded that, in contrast to criminal fines that are "generally responsive to the conduct which they intend to punish, . . . assessments are imposed in accordance with a predetermined flat rate." Id.
In this case, the probation enhancement fee falls within the defined scope of the term "assessment" relied upon by our Supreme Court in Earl. At the hearing on defendant's motion for resentencing, the court explained that "[t]he probation enhancement fee has been assessed by this court long before this individual assumed the bench." Moreover, the probation enhancement fee was a flat rate of $100. Therefore, the probation enhancement fee is properly classified as an assessment because it was imposed in accordance with a predetermined flat rate.
The question, then, is whether the court was authorized to impose the probation enhancement fee under MCL 771.3(2)(d). In Cunningham, 496 Mich. at 147, our Supreme Court addressed whether former MCL 769.1k(1)(b)(ii) provided trial courts with the independent authority to impose costs upon a criminal defendant. The Court reasoned that if the Legislature intended former MCL 769.1k(1)(b)(ii) to give courts independent authority to impose any cost, it would not have specifically authorized certain costs in other subsections of MCL 769.1k. Id. at 154-155. The Court also noted that numerous other penal statutes authorizing the specific imposition of costs for certain offenses would be rendered nugatory if courts could impose any cost "regardless of whether the Legislature had particularly provided courts with the authority to impose specific costs for the relevant offense." Id. at 156. Thus, the Court held that former MCL 769.1k(1)(b)(ii) "provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute." Id. at 154.
Although former MCL 769.1k and MCL 771.3 are not identical, they are marked by distinct parallels. For instance, both statutes contain general and specific provisions referencing the imposition of costs or assessments. While MCL 771.3(2)(d) states that a court may require the payment of "any assessment ordered by the court" as a condition of probation, MCL 771.3(1)(d) authorizes a specific supervision assessment, which requires a probationer who was sentenced in the circuit court to "pay a probation supervision fee as prescribed in section 3c of this chapter." Further, other penal statutes authorize specific assessments that are not addressed under MCL 771.3. Interpreting MCL 771.3(2)(d) as granting courts the independent authority to impose any assessment would effectively render the specific assessment provisions of both MCL 771.3 and other penal statutes nugatory, as trial courts could impose any assessment as a condition of probation regardless of whether the Legislature specifically authorized certain assessments for the offense. When interpreting statutes, our goal is to harmonize and reconcile related statutes, and to avoid nullifying any statutory provision by the overly broad interpretation of another. Koenig v South Haven, 460 Mich. 667, 677; 597 N.W.2d 99 (1999). Therefore, we conclude that MCL 771.3(2)(d) does not provide trial courts with the independent authority to impose any assessment as a condition of probation, but rather permits courts to impose only those assessments that are separately authorized by statute.
Even if the trial court was not authorized to impose any assessment against defendant under MCL 771.3(2)(d), on appeal, the prosecutor contends that the probation enhancement fee was separately authorized by MCL 771.3(5) because it represented a cost specific to defendant's case. Again, MCL 771.3(5) states, "If the court requires the probationer to pay costs under subsection (2), the costs shall be limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer." Defendant argues that his probation status alone was insufficient to attribute the $100 probation enhancement fee to the specifics of his case.
In People v Teasdale, 335 Mich. 1, 6; 55 N.W.2d 149 (1952), our Supreme Court held that an order of costs against a convicted defendant "excludes expenditures in connection with the maintenance and functioning of governmental agencies that must be borne by the public." Likewise, in People v Newton, 257 Mich.App. 61, 69-70; 665 N.W.2d 504 (2003), this Court affirmed that "[t]he payment of salaries and overtime pay to the investigators, the purchase of surveillance equipment, the purchase and maintenance of vehicles, and other similar expenditures" could not be imposed against a defendant in a restitution order because they were general costs of investigation. Id. at 69 (internal quotation marks and citation omitted). This Court further explained that costs are general in nature if they "would have been incurred without regard to whether [the] defendant was found to have engaged in criminal activity." Id.
In this case, the probation enhancement fee was not specific to defendant, but instead accounted for general operating costs incurred by the probation department. The trial court explained that the probation enhancement fee was used to fund the purchase of equipment such as gloves and cell phones that enabled probation officers to perform their duties more efficiently. Because the court was not independently authorized to impose any assessment under MCL 771.3(2)(d), the $100 probation enhancement fee was not separately authorized by statute, and the fee imposed was not a cost "specifically incurred" in defendant's case under MCL 771.3(5), the trial court erred in imposing the probation enhancement fee upon defendant.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Peter D. O'Connell, P.J., (dissenting).
I respectfully dissent.
Defendant is a probation violator. On January 23, 2013, defendant pleaded guilty to one count of failing to register as a sex offender, MCL 28.729. The trial court sentenced defendant to serve a five-year probationary term and 12 months in the county jail. The court ordered defendant to pay a $100 cost for probation supervision to cover such things as cell phone and gloves for probation agents: the equivalent of $1.67 a month. The trial court labelled this cost a "probation enhancement fee" and indicated that MCL 771.3 authorized it to impose this cost.
It is necessary to discuss what this case is not about before addressing what this case is about. First and foremost, this case is not similar to People v Cunningham, 496 Mich. 145; 852 N.W.2d 118 (2014). In Cunningham, our Supreme Court addressed whether former MCL 769.1k(1)(b)(ii) provided trial courts with the independent authority to impose costs upon a criminal defendant. MCL 769.1k(1)(b)(ii) gave trial courts authority to impose "any cost in addition to the minimum state cost." Our Supreme Court held that former MCL 769.1k(1)(b)(ii) did not allow a trial court to assess any cost, but rather "provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute." Id. at 154.
In the present case, a different statute with different language is at issue. Our statute does not concern "any cost" but rather allows "costs" to be imposed on "the probationer." MCL 771.3(2)(c) provides that a trial court may require the probationer to pay costs as a condition of probation pursuant to MCL 771.3(5). In turn, MCL 771.3(5) provides that "the costs shall be limited to expenses specifically incurred in . . . supervision of the probationer." Accordingly, costs in this case are specifically authorized by statute. See Cunningham, 496 Mich. at 149.
We also cannot read statutory sections in isolation, People v Conley, 270 Mich.App. 301, 316-317; 715 N.W.2d 377 (2006) and should avoid constructions that render portions of a statute surplusage, People v Ward, 211 Mich.App. 489, 492; 536 N.W.2d 270 (1995). The probation-specific supervision fee provided in MCL 771.3(1)(d) cross-references MCL 771.3c, which provides a fee based on the number of months of probation that the trial court orders. I cannot conclude that the Legislature meant to restrict costs or fees to this specific dollar amount when it independently authorized additional cost and fees under MCL 771.3(2)(c) and (d). If the trial court may only order the specific assessment provided in MCL 771.3(1)(d), it renders these portions of the statute surplusage.
The trial court imposed specifically authorized costs in this case. As the trial court noted, the probation enhancement fee that it assessed Juntikka provided for equipment that allows probation agents to perform their jobs. These are costs incurred in supervising the probationer, who is subject to additional monitoring under SORA.
The $100 cost imposed by the trial court was a reasonable and specific fee authorized by MCL 771.3, and therefore it was not within the umbrella of disallowed costs set forth in the Cunningham opinion. Since MCL 771.3 specifically allows a trial court to assess costs for the supervision of probationers, I would affirm the learned trial court's well-reasoned opinion.
I would affirm.