Order Michigan Supreme Court

Lansing, Michigan 

November 14, 2008 Clifford W. Taylor,

 Chief Justice 

136524 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan Plaintiff-Appellee, Robert P. Young, Jr. v SC: 136524 Stephen J. Markman, COA: 283547 Justices 

Macomb CC: 02-002978-FH 

KENA BANKS,

Defendant-Appellant. 

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On order of the Court, the application for leave to appeal the April 2, 2008 order 

of the Court of Appeals is considered, and it is DENIED, because the defendant has 

failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). 

CORRIGAN, J. (concurring). 

I concur in the order denying leave to appeal 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. The January 21, 2003, judgment of sentence 

required her to pay attorney fees in an amount later calculated to be $810. Defendant 

failed to pay the fees. After she later pleaded guilty of second-degree murder in 

connection with a crime committed on October 7, 2006, defendant was sentenced to 22 to 

40 years of imprisonment. After she began serving her prison sentence and obtained 

employment in prison, the trial court entered an “Order to Remit Prisoner Funds for 

Fines, Costs, and Assessments,” requiring the 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 restitution 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 motion on November 30, 2007. Defendant filed 

an application for leave to appeal 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 because I do not believe that the trial court 

was required to assess defendant’s ability to pay under Dunbar before entering the order 

to remit prisoner funds. The Legislature has specifically provided 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 authority to order reimbursement of 

attorney fees,1

 and MCL 769.1l

2 requires the Department of Corrections to deduct funds 

from the prisoner’s account upon receiving such an order. This statutory scheme leaves 

no room for a Dunbar requirement where the defendant is in prison, so defendant here is 

ineligible for a Dunbar hearing.

 KELLY, 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 769.1l 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 state court administrative office, 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 amount exceeds $100.00, or the entire 

amount if the prisoner is paroled, is transferred to community programs, or 

is discharged on the maximum sentence. The department of corrections 

shall give an order of restitution under section 20h of the corrections code 

of 1953, 1953 PA 232, MCL 791.220h, or the crime 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 769.1l became effective on January 1, 2006, which is after 

the trial court entered the judgment of sentence requiring defendant to pay attorney fees, 

but before it entered the order 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 entering the order to remit prisoner 

funds. But the Dunbar requirements should have been adhered 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 court-appointed attorney must provide “some 

indication . . . that it considered defendant’s ability to pay.”4 The court also held that “in 

most cases, challenges to the reimbursement order 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 assessments 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 Justice Corrigan are inapplicable and do not 

support her contention that defendant “is ineligible for a Dunbar hearing.” Neither MCL 

769.1k nor MCL 769.1l diminishes a trial court’s responsibility to assess a defendant’s 

ability to pay before ordering restitution. The Court of Appeals recently held explicitly 

that MCL 769.1k “does not eliminate the requirement, set forth in Dunbar, supra, that the 

trial court consider a defendant’s ability to pay prior to ordering reimbursement of 

appointed counsel costs.”6 

Finally, MCL 769.1l does not remove the need for 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 Court denied leave to appeal in Trapp. ___ Mich ___ (Docket 

No. 136056, entered November 5, 2008). 
 _________________________________________ 

 

4 

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

d1110 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

November 14, 2008 

 Clerk