Michigan Supreme Court 

# Order

Lansing, Michigan

November 14, 2008 Clifford W. Taylor,
Chief Justice

136524 Michael F. Cavanag h
Elizabeth A. Weave r Marilyn Kell y PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corriga n Plaintiff-Appellee, Robert P. Young, Jr. v SC: 136524 Stephen J. Markman, COA: 283547 J ustices Macomb CC: 02-002978-FH KENA BANKS, Defendant-Appellant.

________________ _________________________/

On order of the Court, the application fo r leave to appeal the April 2, 2008 order of the Court of Appeals is considered, a nd it is DENIED, because the defendant has
failed to meet the burden of establishi ng entitlement to relief under MCR 6.508(D).

C ORRIGAN , J. ( concurring ).

I concur in the order denying leave to appe al because I do not believe a trial court is required to assess ability to pay under People v Dunbar , 264 Mich App 240 (2004), before requiring a defendant who is in prison to commence payment of the cost of a court appointed attorney.

In 2003, defendant pleaded no contest to a charge of assault with a dangerous weapon and was sentenced to probation. Th e January 21, 2003, judgment of sentence required her to pay attorney fees in an amoun t later calculated to be $810. Defendant failed to pay the fees. After she later pl eaded guilty of second-degree murder in
connection with a crime committe d on October 7, 2006, defend ant was sentenced to 22 to 40 years of imprisonment. After she began serving her prison sentence and obtained employment in prison, the trial court entere d an “Order to Remit Prisoner Funds for Fines, Costs, and Assessments,” requiring th e Department of Corrections to collect 50 percent of the funds defendant receives over $50 a month and remit the funds to Macomb County.

Defendant then filed a motion to modify the attorney fee order in the trial court. Citing Dunbar , she asked the court to suspend res titution payments to the county until she was released from prison and at that point conduct a Dunbar hearing to assess her ability to pay. The trial court denied the mo tion on November 30, 2007. Defendant filed an application for leave to app eal in the Court of Appeals, and the Court denied leave to appeal under MCR 6.508(D).2

I concur in this Court’s denial order be cause I do not believe that the trial court was required to assess defend ant’s ability to pay under Dunbar before entering the order to remit prisoner funds. The Legislature has specifically provide d a procedure by which counties are to recoup attorney fees from defendants who are sentenced to prison. MCL 769.1k(1)(b)( iii ) explicitly gives a trial court the au thority to order reimbursement of attorney fees, 1 and MCL 769.1 l 2 requires the Department of Co rrections to deduct funds from the prisoner’s account upon receiving such an order. Th is statutory scheme leaves
no room for a Dunbar requirement where the defendant is in prison, so defendant here is ineligible for a Dunbar hearing.

K ELLY , J. ( dissenting ).

I dissent from the order denying leave to appeal. I would remand this case for a hearing to assess defendant’s ability to pay now and in the future pursuant to People v
Dunbar. 3

1 MCL 769.1k(1)(b)( iii ) permits the trial court to “impose . . . [t]he expenses of providing legal assistance to the defendant.”

2 MCL 769.1 l provides:

If a prisoner under the jurisdiction of the department of corrections has been ordered to pay any sum of money as described in section 1k and the department of corrections receives an order from the court on a form prescribed by the stat e court administrative o ffice, the department of
corrections shall deduct 50% of the funds received by the prisoner in a month over $50.00 and promptly forward a payment to the court as provided in the order when the amou nt exceeds $100.00, or the entire amount if the prisoner is paroled, is transferred to community programs, or is discharged on the maximum senten ce. The department of corrections shall give an order of re stitution under section 20h of the corrections code of 1953, 1953 PA 232, MC L 791.220h, or the crim e victim's rights act, 1985 PA 87, MCL 780.751 to 780.834, priority over an order received
under this section.

MCL 769.1k and MCL 769.1 l became effective on January 1, 2006, which is after the trial court entered the judg ment of sentence requiring de fendant to pay attorney fees,
but before it entered the or der to remit prisoner funds.

3 People v Dunbar , 264 Mich App 240 (2004).3

Justice Corrigan is correct that the trial court was not required to hold a Dunbar hearing to assess the defendant ’s ability to pay before enteri ng the order to remit prisoner
funds. But the Dunbar requirements should have been a dhered to earlier when defendant was sentenced and assessed attorney fees.

In Dunbar , the Court of Appeals held that a trial court that orders a convicted
defendant to reimburse fees for his cour t-appointed attorney must provide “some
indication . . . that it consider ed defendant’s ability to pay.” 4 The court also held that “in most cases, challenges to the reimbursement or der will be premature if the defendant has not been required to commence repayment.” 5

In this case, at Macomb County’s request, the trial court entered an order to remit prisoner funds for fines, costs, and assessmen ts on October 2, 2007. Defendant filed a motion for relief from judgment on November 15, 2007. Therefore, defendant timely challenged the reimbursement order pursuant to Dunbar . There is no indication on the
record that the trial court ever assessed defendant’s ability to pay attorney fees.

In addition, the statutes cited by Jus tice Corrigan are inapplicable and do not support her contention that de fendant “is ine ligible for a Dunbar hearing.” Neither MCL
769.1k nor MCL 769.1 l diminishes a trial court’s res ponsibility to assess a defendant’s ability to pay before ordering re stitution. The Court of App eals recently held explicitly
that MCL 769.1k “does not eliminat e the requirement, set forth in Dunbar, supra , that the
trial court consider a defend ant’s ability to pay prior to ordering reimbursement of appointed counsel costs.” 6

Finally, MCL 769.1 l does not remove the need fo r a trial court to conduct a
Dunbar hearing for all defendants, including prisoners. It is a ministerial statute outlining the procedures that the Department of Corrections must follow when removing funds from a prisoner’s account.

4 Dunbar

, supra at 254-255.

5 Id. at 256, citing People v Guajardo , 213 Mich App 198, 202 (1995); People v LaPine

, 63 Mich App 554, 556, 558 (1975).

6 People v Trapp ( On Remand ), ___ Mich App ___ (Docket No. 282662, issued September 9, 2008). This Cour t denied leave to appeal in Trapp. ___ Mich ___ (Docket No. 136056, entered November 5, 2008)._______________________________________ __ 4

For these reasons, I would remand th is case to the trial court for a Dunbar hearing.

d1110 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.

November 14, 2008

Clerk