Michigan Court of Appeals Upholds Court Costs In Felony Case

On March 3rd, 2015, the Michigan Court of Appeals upheld the imposition of $500.00 in court costs on defendant at sentencing in a felony case and remanded the case to the trial court to establish a factual basis for the particular amount of court costs imposed on defendant.

In People v Konopka, Docket No. 319913, the Michigan Court of Appeals addressed a technically complex argument about whether a trial court committed error under new case law and an updated version of the Michigan statute that authorizes a trial court to impose fines and costs on a defendant in a criminal case at sentencing when the trial court imposed $500.00 in court costs on defendant.

The facts of the case as recited by the Court are brief.

Defendant pleaded guilty to first-degree retail fraud, MCL 750.356c, and conspiracy to commit first-degree retail fraud, MCL 750.157a. 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.

The Court's analysis of whether the trial court committed error when it ordered defendant to pay $500.00 followed.

. . . We first are obliged to consider—and we reject—defendant’s suggestion that we should not consider the prosecution’s position regarding the impact 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 equally if not more true that a post-Cunningham legislative amendment obviously could not have been addressed within the text of a Cunningham order that was necessarily issued before the 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 that it would be inappropriate for us to do otherwise . . .

The amended version of MCL 769.1k(1)(b)(iii) provides for an award of certain costs that are not independently authorized by the statute for the sentencing offense, in contrast to the amended version of MCL 769.1k(1)(b)(ii), which provides that a court may impose “[a]ny cost authorized by the statute for a violation of which the defendant entered a plea of guilty or nolo contendere or the court determined that the defendant was guilty.” This Court must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory.” Cunningham, 496 Mich at 154 (quotation marks and citation omitted). MCL 769.1k(1)(b)(ii) would be rendered surplusage if MCL 769.1k(1)(b)(iii) merely provided for the imposition of costs that were separately authorized by the statute for the underlying offense, given that MCL 769.1k(1)(b)(ii) already provides for the imposition of such costs. We therefore conclude that MCL 769.1k(1)(b)(iii) authorizes the imposition of costs independently of the statute for the sentencing offense.

At oral argument, defense counsel argued that the amended version of MCL 769.1k does not fix the problem identified in Cunningham. In essence, defendant interprets Cunningham as requiring that the separate authority for the imposition of court costs derive from a “penal” statute other than the “procedural” provisions of MCL 769.1k. However, such an interpretation would render nugatory other provisions of MCL769.1k. Moreover. we find such an interpretation of Cunningham strained in light of the Court’s limited conclusion that it did not “believe that the Legislature intended MCL769.1k(1)(b)(ii) to provide courts with the independent authority to impose ‘any cost.’ ” Cunningham, 496 Mich at 159. Nothing in the Cunningham opinion leads to the conclusion that the Legislature is forbidden from granting trial courts the authority to impose reasonable court costs independent of the statute for a sentencing offense, or that the Legislature is forbidden to place such authority within MCL 769.1k itself.

In light of the adoption of 2014 PA 352, the trial court’s imposition of costs was not erroneous. However, although the costs imposed in this case need not be separately calculated, MCL 769.1k(1)(b)(iii), the trial court did not establish a factual basis, under the subsequently amended statute, for the $500 in costs imposed. Indeed, it could not have done so at that time. However, without a factual basis for the costs imposed, we cannot determine whether the costs imposed were reasonably related to the actual costs, as required by MCL 769.1k(1)(b)(iii). In this case, defendant specifically challenges the lack of reasoning for the costs imposed, and we find that he should be given the opportunity to challenge the reasonableness of the costs below. See Sanders I, 296 Mich App at 715. We therefore remand to the trial court for further proceedings to establish a factual basis for the $500 in costs imposed, under MCL 769.1k(1)(b)(iii), or to alter that figure, if appropriate.