Michigan Supreme Court 

# Order

Lansing, Michigan

June 27, 2008 Clifford W. Taylor, Chief Justice

134841 Michael F. Cavanagh
Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr. Plaintiff-Appellee, Stephen J. Markman, v SC: 134841 Justices COA: 279235 St Clair CC: 04-000154-FH DARIN KEITH ROUNSOVILLE, Defendant-Appellant.

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On order of the Court, the application for leave to appeal the August 16, 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 portion of the sent ence of the St. Clair 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 future. 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 th is case to the tria l 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 202

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.

I. Facts and Procedural Posture

In 2004, defendant pleaded guilty of fourth-degree criminal sexual conduct (CSC IV) and of being a fourth–offen se habitual offender, for sexually assaulting his 14-yearold stepdaughter. Defe ndant was sentenced to one year in jail and tw o years’ probation. The order of probation, which defendant signed, stated, “You must pay attorney fees in
an amount to be determined as ordered by the court.” 1 In 2006, after serving his jail sentence, defendant violated his probation. He signed a petition for court-appointed counsel, which stated that he understood that he may be ordered to repay the cost of his court-appointed attorney. On November 1, 2006, defendant pleaded guilty of a probation violation and, on December 13, 2006, was sentenced to 31⁄2 to 15 years’ imprisonment. Defendant’s presentence inve stigation report (PSIR) liste d his employment history, education, vocational training, health status, income, assets, and financial liabilities. At sentencing on the probation violati on, the trial court did not st ate that defendant would be required to reimburse the cost of his appoi nted counsel. The judgment of sentence, however, ordered defendant to pay $930.05 in a ttorney fees. The form judgment order stated that fees not paid within 56 days of the December 4, 2006, due date were subject to a 20 percent late penalty on the amount ow ed. Defendant did not object to this
reimbursement order.

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 argue at sentencing th at the court was required to inquire into his ability to pay before ordering him to reimburse the court fo r attorney fees. This Court reviews this unpreserved issue for plain error affecti ng 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

1 The order, however, desig nated “$.00” as the amount of attorney fees to be paid.3

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.

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 courtappointed 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 stateappointed 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 Am endment. Due-process and equal-protection principles converg e 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 courtappointed counsel. See Dunbar, supra at 254. 3 Nonetheless, the court had the authority

The Michigan Cons titution contains a similar pr ovision: “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 Effective January 1, 2006, the Legislature enacted MCL 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 24

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 us ed to repay the cost of a courtappointed 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

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:
* * * (iii) The expenses of provid ing 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

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 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 workrelease, 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, bu t failed to do so. When th e court appointed counsel for defendant, he signed a form order that stated as follows: “REPAYMENT I understand that I may be ordered to repay the court for all or part of my attorney and defense costs.”
In Dunbar, supra at 254, the defendant ’s petition and order appo inting counsel similarly stated that he “may be ordered to repay the court” for his court-appointed attorney fees.
Dunbar held that this petition and order sufficiently notified th e defendant of the court’s decision to order the paym ent of attorney fees. Id. The petition and or der in the instant case, which is virtually identi cal to the one at issue in Dunbar , similarly notified defendant about his responsibility to pay the attorney fees.

Defendant also had an opportunity to object. Dunbar held that th e defendant, who was given notice of the fees by the petition and order appoin ting counsel, was given the opportunity to object at sentencing. Id. at 254. “In regard to defendant’s opportunity to be heard, defendant was not prevented from objecting at sentencing and asserting his indigency.” Id. Similarly in the instant case, defenda nt had an opportunity to object at sentencing. The judgment of sentence sp ecifically stated, “Defe ndant shall pay as follows: $930.05 ATTORNEY FE E . . . .” He could have objected to the fees on the6

record at any time. Thus, d efendant had notice of the fees and a meaningful opportunity to object to those fees.

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
state on the record or in the c ourt file that it considered a defendant’s ability to pay when a defendant has not timely objected on indige ncy 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 nearly 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 the PSI R, which was available wh en the court ordered the reimbursement, described defend ant’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_______________________________________ __ 7

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. Th e 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.]

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 or der 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.

5 “Costs” are defined, in pa rt, as “the cost of providing court-ord ered legal assistance to
the defendant.” MCL 600.4801(a).

t0624 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