Michigan Supreme Court 

# Order

Lansing, Michigan

June 27, 2008 Clifford W. Taylor, Chief Justice
134545 Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, Robert P. Young, Jr. Stephen J. Markman, Justices

v SC: 134545 COA: 277844 Wayne CC: 06-000728-01 JOHN CHARLES RANSOM, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application for leave to appe al the June 12, 2007 order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE that por tion of the sentence of the Wayne Circuit
Court that ordered the defenda nt to pay attorney fees and we REMAND this case to the
trial court for a decision on attorney fees that considers th e defendant’s ab ility to pay now
and in the fu ture. See People v Dunbar , 264 Mich App 240 (2004), lv den 473 Mich 881 (2005). At the trial court’s discretion, th e decision may be made based on the record without the need for a formal evidentiary hearing. If the court de cides to order attorney fees, it shall do so in a separate order whic h indicates that the court considered the defendant's ability to pay. Id . In all other respects, the app lication for leave to appeal is DENIED, because we are not p ersuaded that the remaining qu estion presented should be reviewed by this Court.

We do not retain jurisdiction.

C ORRIGAN , J., dissents and states as follows:

I dissent from the order remanding the case to the trial court to consider defendant’s ability to repa y his attorney fees under People v Dunbar , 264 Mich App 240 (2004). For the reasons set out in my dissenting statements in People v Carter , 480 Mich 1063 (2008), and People v Willey , 481 Mich ___ (Docket No. 134368, entered May 23, 2008), neither the Sixth Amendment nor the Fourteenth Am endment compels a sentencing court to state that it considered a defendant’s ability to pay before ordering him to repay the cost of his court appointed-attorn ey when the defenda nt does not timely object to the repayment order. When the court decides to enforce collection or sanction
the defendant for nonpayment, it must cons ider the defendant’s ability to pay. In this case, although the judg ment of sentence states that over due payments are subject to a 20 percent late penalty, the court has not enforced the repayment order or the late penalty. Therefore, the court was not required to state either on the record or in the court file that it had considered defendant’s ability to pay. Accordingly, I would deny leave to appeal.2

I. Facts and Procedural Posture

Defendant pleaded guilty of second-d egree murder and po ssession of a firearm during the commission of a felony in connection with the bea ting and shooting death of a man at a Detroit house. The day before se ntencing, defendant filed a request for appointment of appellate counsel, which incl uded a financial schedule listing all of defendant’s income, assets, and financial obligations. Additionally, defendant’s presentence investigation report (PSIR) lis ted his employment hi story, education, vocational training, health stat us, income, assets, and financial liabilities. At sentencing, the trial court stated, “the Court is going to enter a final order for reimbursement of attorney fees” of $940. D efendant did not object. The court entered an “Order of Conviction and Sentence” and a separate “Final Order for Reimbursement of Attorney Fees,” both of which ordered d efendant to repay $940 in attorn ey fees. The “Final Order for Reimbursement of Attorney Fees” states that if the atto rney fees are not paid within 56 days of the final order, 1 they are subject to a 20 p ercent late fee on any outstanding
balance.

On appeal, defendant challenged the reimbursement order for the first time, arguing that the trial court erred in failing to hold a hearing or consider defendant’s ability to pay as required by Dunbar . The Court of Appeal s denied defendant’s application for leave to a ppeal for lack of merit.

II. Standard of Review

Defendant did not obj ect at sentencing to the atto rney-fee reimbursement order. This Court reviews this unp reserved issue for plain error affecting substantial rights. People v Carines , 460 Mich 750, 774 (1999); Dunbar, supra at 251.

III. Analysis

The Sixth Amendment of the United States Constitutio n provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” US Const, Am VI. 2 This right is made applicab le to the states through the
Due Process Clause of the Fourteenth Amendment. Gideon v Wainwright , 372 US 335, 342 (1963). This right requires the states to provide counsel for indigent defendants in
criminal cases. Id. at 344. Michigan indisputab ly accorded defendant his Sixth Amendment rights, as he had the be nefit of court-appointed counsel.

1 The order was entered on May 5, 2006.

2 The Michigan Constitution contains a similar provision: “In every criminal prosecution, the accused shall have the right . . . to have the assistance of counsel for his or her defense . . . .” Const 1963, art 1, § 20.3

Under a recoupment scheme, an indigent defendant is provide d counsel regardless of his ability to pay, bu t might be ordered to rep ay the cost of counsel at a later date. In James v Strange , 407 US 128, 134 (19 72), the United States Supreme Court, discussing an attorney-fee recoupment scheme requiring defendants to repay the cost of court

appointed counsel, held , “[t]here is certainly no denial of the right to counsel in the strictest sense.” Further, in Fuller v Oregon , 417 US 40, 51-52 (19 74), the United States Supreme Court held that an attorney -fee recoupment scheme did not “chill” the defendants’ constitutional right to counsel. “T he fact that an indige nt who accepts state

appointed legal representation knows that he might someday be required to repay the costs of these services in no way affect s his eligibility to obtain counsel.” Id. at 53. The Court held that Oregon’s recoupment sc heme, which was designed to impose an obligation to pay only on those with a foreseeable ability to meet it, and to enforce that obligation only against those wh o actually become able to m eet it without hardship, did
not violate the Sixth Amendment. Id. at 54.

Attorney-fee recoupment schemes have al so been challenged under the Equal
Protection and Due Process cl auses of the Fourteenth Amendment. Due process and equal protection principles conver ge in this area of the law. Bearden v Georgia , 461 US 660, 665-666 (1983). In James v Strange , 407 US 128 (1 972), the United States Supreme
Court held that Kansas’s recoupment scheme violated the Equal Protection Clause because it did not accord indige nt defendants the same statut ory protections accorded to other judgment debtors. In Bearden, supra at 672-673, the Court he ld that the Fourteenth Amendment prohibits a state fro m revoking an indigent defendant’s probation for failure to pay a fine or restitution if the defendant has demonstrated bona fide efforts to pay.

When defendant committed this offense, Mich igan had no statutory scheme governing court orders requiring criminal d efendants to reimburse the costs of court

appointed counsel. See Dunbar, supra at 254. 3 Nonetheless, the court had the authority

3 Effective January 1, 2006, the Legislature enacted MC L 769.1k(1)(b)(iii), which allows the court to impose the expense of prov iding legal assistan ce on the defendant:

(1) If a defendant enters a plea of guilty or nolo cont endre or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the tim e of the sentencing or at the time entry of judgment of guilt is deferred pursuant to statute or sentencing is delayed pursuant to statute:

* * *

(b) The court may impose a ny or all of the following:

* * *4

to order a criminal defendant to reimburse th e government for the cost of court-appointed counsel unless prohibited by statute or the Un ited States or Michigan constitutions. See Davis v Oakland Circuit Judge , 383 Mich 717, 720 (1970) (the trial court has the discretionary power to or der that a defendant’s assets be used to repay the cost of court

appointed attorney); People v Nowicki , 213 Mich App 383, 388 (1995) (“We conclude that the trial court had authority to order defendant to reimbur se the county for costs paid for his representation.”). In Dunbar , our Court of Appeals articul ated a test to determine
whether a trial court’s attorn ey-fee recoupment procedure is constitutionally sound under this United States Supreme Court preceden t. In my dissen ting statement in Willey , I described the holding in Dunbar as follows:

In Dunbar, supra at 252, the issue was whether a sentencing court may constitutionally require a defendant to contribute to the cost of his court-appointed attorney without firs t assessing his ability to pay. The
Dunbar panel adopted the test from Alexander v Johnson , 742 F2d 117, 124 (CA 4, 1984), to determin e whether a sentencing court’s procedure passes
constitutional muster. In Alexander , the Fourth Circuit Court of Appeals
discussed James v Strange , 407 US 128 (1972), Fuller v Oregon , 417 US 40 (1974), and Bearden v Georgia , 461 US 660 (1983), [4] which all involved challenges to the constitutionality of statutory attorney-fee recoupment schemes. The Fourth Circuit held that the following constitutional principles emerged from those cases:
“From the Supreme Cour t’s pronouncements in James, Fuller , and
Bearden , five basic features of a constitu tionally acceptable attorney’s fees reimbursement program emerge. First, the program under all circumstances must guarantee the indige nt defendant’s fundamental right to counsel without cumbersome procedural obstacles designed to determine
whether he is entitled to cour t-appointed representation. Second, the state’s decision to impose the burden of re payment must not be made without providing him notice of the cont emplated action and a meaningful opportunity to be heard. Third, th e entity deciding whether to require repayment must take cognizance of th e individual’s resources, the other demands on his own and family’s fi nances, and the hardships he or his family will endure if repayment is required. The purpose of this inquiry is to assure repayment is not required as long as he remains indigent. Fourth, the defendant accepting court-appointed counsel cannot be exposed to more

(iii) The expenses of providing legal assistance to the defendant.

Defendant committed the o ffenses before MCL 769.1k(1)(b)(iii) went into effect.

4 See Carter, supra at 1068-1070, for a su mmary of the holdings in James

, Fuller , and
Bearden

.5

severe collection practices than the ordina ry civil debtor. Fi fth, the indigent defendant ordered to repay his atto rney’s fees as a condition of work

release, parole, or proba tion cannot be imprisoned for failing to extinguish his debt as long as his default is at tributable to his poverty, not his contumacy. [ Alexander, supra at 124 (emphasis added).]”

After the Dunbar panel quoted these factors, it held that a sentencing court may order reimbursement of a court -appointed attorney’s fees without specific findings on the reco rd regarding the defenda nt’s ability to pay, unless the defendant objects to the reim bursement amount at the time it is
ordered. Dunbar, supra at 254. The panel held, ho wever, that even if the defendant does not object, “the court do es need to provide some indication of consideration, such as noting that it reviewed the financial and employment sections of the defendant’s presentence investigation report or, even more generally, a st atement that it considered the defendant’s ability to pay.” Id. at 254-255. [ Willey, supra (Corrigan, J., dissenting).]

This case, like Willey , involves the second and third factors of the Dunbar test. First, the trial court satisfied the second Dunbar factor; defendant had notice of the fees and an opportunity to object, but failed to do so. At sentencing, the trial court specifically told defendant that he would be required to rep ay $940 in at torney fees. Defendant had an opportunity to object to this order and assert his indigency at sentencing, but did not do so. Thus, defendant had noti ce of the fees and a meaningful opportunity to object to those fees. Dunbar, supra at 254.

As I explained in Carter and Willey , I think that Dunbar misinterpreted Supreme Court precedent when it followed Alexander in regard to the thir d factor necessary for a constitutionally sufficient recoupment scheme . As I explained in my dissent in Carter,

supra at 1068-1071, nothing in James, Fuller, or Bearden requires a sentencing court to
indicate that it considered a defendant’s abi lity to pay when a de fendant has not timely objected on indigenc y grounds to the reimbursement order:

. . . Supreme Court precedents compel a sentencing court to inquire
into a defendant’s financial status and make findings on the record when the court decides to enforce collection or sanction the defendant for failure to pay the ordered amount . . . . The Alaska Supreme Court correctly explained that “ James and Fuller do not require a prio r determination of ability to pay in a recoupment syst em which treats recoupment judgment debtors like other civil judgment debtors . . . .” State v Albert, 899 P2d 103, 109 (Alas, 1995). See also the Wa shington Supreme Court’s interpretation
of James, Fuller, and Bearden :
“[C]ommon sense dictates that a de termination of ab ility to pay and an inquiry into defendant’s finan ces is not required before a recoupment order may be entered ag ainst an indigent defen dant as it is nearly6

impossible to predic t ability to pay over a period of 10 years or longer. However, we hold that before enforced collection or any sanction is imposed for nonpayment, there mu st be an inquiry in to ability to pay. [ State v Blank, 131 Wash 2d 230, 242; 930 P2d 1213 (1997).]” [ Carter,

supra at 1070-1071 (Corrigan, J., dissenting) (emphasis added to Blank ).]
As I stated previously in Carter (Corrigan, J., dissenting), I would overrule Dunbar ’s contrary holding.

Applying this conclusion to the facts of this case, I would hold that the court
satisfied its constitutional duties. First, defendant wa s not denied his right to counsel. He was provided court-appointed co unsel despite his inability to pay for an atto rney at the time. He was not required to repay the cost of counsel as a conditi on of representation. In any case, before ordering reimbursement, th e trial court clearly considered defendant’s ability to pay, as defendant f iled his financial schedule with the court the day before the court ordered the repayment of attorney fees. Additionally, the PSIR, which was
available when the court or dered the reimbursement, des cribed defendant’s financial
situation.

Second, the federal constitution does not require the court to inquire into a defendant’s indigency befo re imposing the repayment obl igation. Although the recoupment order stated that defendant would be subject to a 20 percent late fee on any outstanding balance, the circuit court has not en forced this provision. The 20 percent late
fee arises from MCL 600.48 03(1), which provides:

A person who fails to pa y a penalty, fee, or costs [5] in full within 56 days after that amount is due and owing is subject to a late penalty equal to 20% of the amount owed. The court shall inform a person subject to a penalty, fee, or costs that the late pena lty will be applied to any amount that continues to be unpaid 56 days aft er the amount is due and owing. Penalties, fees, and costs are due and owing at the time they are ordered
unless the court directs otherwise. The court shall order a specific date on which the penalties, fees, and costs are due and owing. If the court authorizes delayed or inst allment payments of a penalty, fee, or costs, the court shall inform the person of the date on which, or time schedule under which, the penalty, fee, or costs, or po rtion of the penalty, fee, or costs, will be due and owing. A late penalty may be wai ved by the court upon the request of the person subject to the late penalty . [Emphasis added.]

5 “Costs” are defined, in part, as “the cost of providing court-ordered legal assistance to
the defendant.” MCL 600.4801(a)._______________________________________ __ 7

As discussed, the trial court is required to consider the defendant’s financial situation only when it enforces the repayment order by sanctioni ng the defendant for nonpayment. Including a 20 percent late-fee provision in the recoupment order is not the same as actually enforcing the late fee. MCL 600.4803(1) speci fically contemplates that the trial
court retains the discretion to waive the late fee (i.e., declin e to enforce it) even when a defendant has failed to pay his attorney fees within 56 days of the due date. In other words, the inclusion of a late-fee provision in the recoupment order is not equivalent to enforcing the recoupment order or the late fee. A sancti on is not imposed until the court requires the defendant to pay the attorney fees (with the 20 percent late penalty) or
sanctions him in some other way for nonpayment. Because the court has not yet enforced collection by sanctioning defe ndant for nonp ayment, defendant’s challenge to the reimbursement order is premature. See Dunbar, supra at 256 (“in most cases, challenges
to the reimbursement order w ill be premature if the defendant has not been required to commence repayment”); see also Blank, supra at 242. Therefore, the trial court did not err in failing to indicate its consideration of d efendant’s ability to pay, and the Court of Appeals did not err in denying leave to appeal. For these reasons, I would deny leave to appeal.

s0624 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

June 27, 2008

Clerk