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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED October 22, 2015

v No. 322206
Clare Circuit Court JOHN EDWARD COOK, LC No. 13-004626-FH

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and M URRAY and S HAPIRO , JJ.

P ER C URIAM

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Defendant pleaded guilty to delivering morphine, MCL 333.7401( 2)(b)( ii ). The trial court sentenced him as a third-offense habitual offender, MCL 7 69.11, to 12 months in jail and 24 months of probation. The trial court ordered defendant to p ay $300 in restitution, $136 in state costs, a crime victim’s assessment fee of $130, $500 in c ourt costs, a $500 fine, and $500 in court-appointed attorney fees. T his Court granted defendant’s delayed application for leave to appeal, People v Cook , unpublished order of the Court of Appeals, issued July 17, 20 13 (Docket No. 322206), limited to defendant’s challenges to certain costs and fines.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 imposi ng a $500 fine at sentencing. We agree. “The fine was clearly not a part of the sentencing a greement, and the defendant was not offered the opportunity to with draw 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 jud gment of sentence by deleting
the . . . fine.” Id

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Defendant also argues that the t rial court erred in imposing c ourt costs because it was without authority to do so. We disagree. This case is indisti nguishable 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 amende d by 2014 PA 352, to order [a] defendant to pay court costs.” We explained that, under MCL 76 9.1k(1)(b)( iii ), a trial court has the independent authority to impose costs, and that statute “ap plies to all fines, costs, and assessments under MCL 769.1k before June 18, 2014, . . . and af ter . . . the effective date of the amendatory act.” Id . at 357, citing 2014 PA 352. Defendant was sentenced, and the costs were-2- imposed, on December 16, 2013. Accordingly, the trial court ha d 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 rela ted 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 relate d to the actual costs incurred b y the trial court without separately calculating those costs involved in the particular case,’ MCL 7 69.1k(1)(b)( iii ), as amended by 2014 PA 352, or to adjust that amo unt as may be appropriate.” Id . at 350-351.

Although defendant also claims that “[a]t the time the court i mposed 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. H owever, after oral argument before this Court, defendant inf ormed the Court that all fees a nd fines have been paid and no late fee was charged. Accordingly, this argument is not ripe for re view. See People v Jackson , 483 Mich 271, 297-298; 769 NW2d 630 (2009).

Finally, defendant argues that his trial counsel was ineffecti ve in failing to raise the arguments discussed above. However, in light of our resolution s on the merits of those claims above, defendant’s ineffective assistance arguments do not warr ant further relief.

Affirmed in part, vacated in par t, and remanded for further pr oceedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Michael J. Kelly /s/ Christopher M. Murray /s/ Douglas B. Shapiro