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People v. Shenoskey

Court of Appeals of Michigan

June 8, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
PHILLIP EDWARD SHENOSKEY, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
JIMMIE EARL CRAWFORD, Defendant-Appellant.

         Mackinac Circuit Court LC No. 2015-003665-FH

         Mecosta Circuit Court LC No. 15-008538-FH

          Before: Sawyer, P.J., and Murray and Gleicher, JJ.

          PER CURIAM.

         In Docket No. 332735, defendant Shenoskey pled guilty to operating a motor vehicle while intoxicated, third offense, MCL 257.625(9)(c), and was sentenced to 18 months to 5 years in prison. In Docket No. 333375, defendant Crawford pled guilty to possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and was sentenced to 2 years' probation. Both appeal by leave granted. This Court, on its own motion, consolidated the appeals. We affirm.

         Both these cases raise questions of constitutional and statutory interpretation. Constitutional questions are reviewed de novo, People v. Harper, 479, Mich. 599, 610; 739 N.W.2d 523 (2007), as are matters of statutory construction. People v Kern, 288 Mich.App. 513, 516; 794 N.W.2d 362 (2010). Additionally, none of the issues raised by defendants were properly preserved for appeal, so we review these issues for plain error. People v. Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).

         Defendant Shenoskey's sole issue on appeal is that the $68 dollars in costs imposed under MCL 769.1j is an unconstitutional tax that violates separation of powers, Const 1963, art 3, § 2, and is in violation of Const 1963, art 4, § 32. We disagree. MCL 769.1j(1)(a) provides as follows:

Beginning October 1, 2003, if the court orders a person convicted of an offense to pay any combination of a fine, costs, or applicable assessments, the court shall order that the person pay costs of not less than the following amount, as applicable:
(a) $68.00, if the defendant is convicted of a felony.

         Defendant initially argues that he was not subject to the imposition of these costs because he was not sentenced to a combination of "a fine, costs, or applicable assessments." We disagree. The trial court imposed a crime victims' rights assessment, court costs, attorney fees and other unspecified costs. Therefore, a combination of fines, costs and other assessments were imposed, thus making defendant subject to MCL 769.1j(1)(a).

         We then turn to defendant's primary claim, that MCL 769.1j(1)(a) is unconstitutional. Defendant first argues that the statute violates separation of powers under Const 1963, art 3, § 2. We disagree. We find guidance in this Court's recent decision in People v. Cameron, __Mich App __;__N.W.2d __(No. 330876, rel'd 4/4/2017), which considered the same argument with regards to a closely related statute, MCL 769.1k(1)(b)(iii). For the same reasons that Cameron found MCL 769.1k(1)(b)(iii) to be a tax, we conclude that the costs imposed under MCL 769.1j(1)(a) are also a tax. Cameron, slip op at 9-11, also addressed the separation of powers issue. We agree with the Court's observation that "even if our Legislature delegated some of its taxing authority to the circuit courts, the Michigan Constitution does not require an absolute separation of powers." Cameron, slip op at 10. In sum, we conclude that the analysis of the separation of powers issue in Cameron applies equally here and, for those reasons, we reject defendant's argument.

         Additionally, defendant makes a brief argument that MCL 769.1j(1)(a) also violates the requirement of Const 1963, art 4, § 32 that "[e]very law which imposes, continues or revives a tax shall distinctly state the tax." Again, Cameron, slip op at 7-9, considered and rejected this argument. For the same reasons, we do so as well.

         Finally, we note that defendant also argues that MCL 769.1j(1)(a) is problematic because it states that the cost imposed shall be "not less than" $68 without providing guidance to the trial court for imposing a greater amount. We need not address this point because in this case the trial court imposed the minimum assessment of $68.

         Defendant Crawford raises two challenges to his sentence. First, he argues that the trial court erred in failing to consider his income at the time it ...


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