People of Michigan v. John Edward Cook ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 22, 2015
Plaintiff-Appellee,
v No. 322206
Clare Circuit Court
JOHN EDWARD COOK, LC No. 13-004626-FH
Defendant-Appellant.
Before: M. J. KELLY, P.J., and MURRAY and SHAPIRO, JJ.
PER CURIAM.
Defendant pleaded guilty to delivering morphine, MCL 333.7401(2)(b)(ii). The trial
court sentenced him as a third-offense habitual offender, MCL 769.11, to 12 months in jail and
24 months of probation. The trial court ordered defendant to pay $300 in restitution, $136 in
state costs, a crime victim’s assessment fee of $130, $500 in court costs, a $500 fine, and $500 in
court-appointed attorney fees. This Court granted defendant’s delayed application for leave to
appeal, People v Cook, unpublished order of the Court of Appeals, issued July 17, 2013 (Docket
No. 322206), limited to defendant’s challenges to certain costs and fines. For the reasons set
forth below, we affirm in part, vacate in part, and remand for further proceedings consistent with
this opinion.
First, defendant contends that the trial court erred in imposing a $500 fine at sentencing.
We agree. “The fine was clearly not a part of the sentencing agreement, and the defendant was
not offered the opportunity to withdraw his plea after the fine was imposed as part of the
sentence.” People v Morse, 480 Mich. 1074, 1074; 744 NW2d 169 (2008). Accordingly, like in
Morse, we remand this matter “for the trial court to correct the judgment of sentence by deleting
the . . . fine.” Id.
Defendant also argues that the trial court erred in imposing court costs because it was
without authority to do so. We disagree. This case is indistinguishable from People v Konopka
(On Remand), 309 Mich. App. 345, 350; ___ NW2d ___ (2015), where this Court held “that the
trial court possessed the authority under MCL 769.1k, as amended by 2014 PA 352, to order [a]
defendant to pay court costs.” We explained that, under MCL 769.1k(1)(b)(iii), a trial court has
the independent authority to impose costs, and that statute “applies to all fines, costs, and
assessments under MCL 769.1k before June 18, 2014, . . . and after . . . the effective date of the
amendatory act.” Id. at 357, citing 2014 PA 352. Defendant was sentenced, and the costs were
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imposed, on December 16, 2013. Accordingly, the trial court had authority, namely MCL
769.1k(1)(b)(iii), to impose costs in this matter.
However, again like in Konopka, “without a factual basis for the costs imposed, we
cannot determine whether the costs imposed were reasonably related to the actual costs incurred
by the trial court, as required by MCL 769.1k(1)(b)(iii).” Konopka, 309 Mich. App. at 359-360.
Consequently, we must remand this matter “to the trial court to establish whether the court costs
imposed were ‘reasonably 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.” Id. at 350-351.
Although defendant also claims that “[a]t the time the court imposed the sentence from
the bench, it did not impose restitution; there was no mention at all of restitution,” at sentencing
the trial court explicitly stated to defendant that: “You must pay restitution of $300.00.”
Defendant’s argument flies in the face of the facts.
Defendant additionally argued in his brief that the 20-percent late fee provided for in
MCL 600.4803 is, for a variety of reasons, unconstitutional. However, after oral argument
before this Court, defendant informed the Court that all fees and fines have been paid and no late
fee was charged. Accordingly, this argument is not ripe for review. See People v Jackson, 483
Mich. 271, 297-298; 769 NW2d 630 (2009).
Finally, defendant argues that his trial counsel was ineffective in failing to raise the
arguments discussed above. However, in light of our resolutions on the merits of those claims
above, defendant’s ineffective assistance arguments do not warrant further relief.
Affirmed in part, vacated in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Douglas B. Shapiro
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