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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 19, 2015

v No. 319973 Wayne Circuit Court JONATHAN EDWARD LANCASTER II, LC No. 13-005893-FC

Defendant-Appellant.

Before: R IORDAN , P.J., and J ANSEN and F ORT H OOD , JJ.

P ER C URIAM

. Defendant appeals by leave granted 1 the trial court’s impositi on of $600 in court costs. Defendant pleaded guilty to one count of armed robbery, MCL 750 .529, and one count of possession of a firearm during th e commission of a felony (felo ny-firearm), second offense, MCL 750.227b. He was sentenced to 4 to 20 years for armed robb ery and five years for felonyfirearm. We remand for proceedings consistent with this opinio n.

I. FACTUAL BACKGROUND

On June 13, 2013, defendant entere d a 7-11 store with a handgun . He pointed the gun at the cashier and demanded money. The cashier gave defendant app roximately $150, and defendant left the store.

Defendant pleaded guilty to arme d robbery and felony-firearm. He was sentenced to 4 to 20 years for armed robbery and five years for felony-firearm. At the sentencing hearing, the trial court stated, “He’s got those fine s and costs, and they’re auto matically put on.” The court did not specify further. The judgment of sentence reflects that de fendant was ordered to pay $600 in court costs. Defendant now appeals.

II. COURT COSTS

1 People v Lancaster , unpublished order of the Court of Appeals, entered February 7 , 2014 (Docket No. 319973).-2- A. STANDARD OF REVIEW

“Because defendant failed to obj ect when the trial court ordere d [him] to pay costs . . . we review [his] challenge to the trial court’s imposition of court costs for plain error.” People v Konopka , __Mich App__; __NW2d__ (Docket No. 319913, issued March 3, 2 015); slip op at 6. To demonstrate such error, the defendant must show that (1) an error occurred, (2) the error was clear or obvious, and (3) “the plain error affected substantial rights,” which “generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

B. LEGAL BACKGROUND

Defendant contends that the trial court abused its discretion in imposing an excessive amount of court costs that were not reasonably related to the c ircumstances of this case. He also contends that court improperly imposed the costs without expres sing its reasoning on the record. We agree, in part.

At the time defendant committed the crimes and at his sentencin g, MCL 769.1k provided that the court may impose “[a]ny cost in addition to the minimu m state cost set forth in subdivision (a).” MCL 769.1k(1)(b)( ii ). In interpreting this la nguage, the Michigan Supreme Court in People v Cunningham , 496 Mich 145, 154; 852 NW2d 118 (2014), held that the statute “does not provide courts with the independent authority to impo se ‘any cost.’ ” Id. Rather, the Court found that trial courts ar e authorized “to impose only th ose costs that the Legislature has separately authori zed by statute.” Id.

Nevertheless, the Legislature subsequently passed 2014 PA 352, which amended the language of the statute. The amendment was given immediate eff ect as of October 17, 2014, which occurred during the pendency of this appeal. The statute now provides that the court may impose “any cost reasonably relate d to the actual costs incurre d by the trial court without separately calculating those costs involved in the particular c ase[.]” MCL 769.1k(1)(b)( iii ). Further, Enacting Section 1 of the amendment provides, “This am endatory act applies to all fines, costs, and assessments ordered or assessed under section 1k of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.1k, before June 18, 20 14, and after the effective date of this amendatory act.” Enacting Section 2 provides, “Th is amendatory act is a curative measure that addresses the authority of courts to impose costs under section 1k of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.1k, before the issuance of the supreme court opinion in People v Cunningham, 496 Mich 145 (2014).”

In Konopka , we addressed the impact of the amendments in the context of Cunningham

, and most notably the added language in MCL 769.1k(1)(b)( iii ). We concluded that the amended statute applies in cases pending on appeal when the amendment w as adopted, and when the costs and assessments were incurred before June 18, 2014. Konopka , __ Mich App at__; slip op at 6. We also recognized that “[w]hen a new law makes clear that it i s retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was-3- enacted, and must alter the outcome accordingly.” Id. ; slip op at 6 (quotation marks and citations omitted). 2

Ultimately, we concluded that “[t]he amended version of MCL 769 .1k(1)(b)( iii ) provides for an award of certain costs that are not independently authorized by the statute for the sentencing offense[.]” Id. at __; slip op at 6 (emphasis in original). In other words, w e found that the MCL 769.1k(1)(b)( iii ) authorizes trial courts to im pose costs independent of the st atute for the sentencing offense. Id. at __; slip op at 7.

However, we also found that the trial court in Konopka “did not establish a factual basis” for the fee imposed in that case. Id. at __; slip op at 8. Thus, we were unable to “determine whether the costs imposed were reasonably related to the actual costs, as required by MCL 769.1k(1)(b)( iii ).” Id. at __; slip op at 7-8. We explained that even though the tria l court need not separately calculate the costs involved in a particular cas e, “defendant should be given the opportunity to challenge the reas onableness of the costs below” and the trial court should “establish a factual basis” for the costs imposed. Id. at __; slip op at 2, 8. Because the trial court failed to do that, we remanded for the trial court to establish a factual basis for the costs imposed in that case. Id. at __; slip op at 8.

C. APPLICATION IN THIS CASE

In light of Konopka, supra , we find that the trial court had the authority to impose cost s in this case. However, like the defendant in Konopka , defendant also challenges the trial court’s failure to detail its reasoning f or the costs imposed. Defenda nt is correct that the trial court failed to divulge its reasoning on the record. Thus, as in Konopka , this Court is unable to “determine whether the costs imposed were reasonably related to the actual costs, as required by MCL 769.1k(b)( iii ).” __ Mich App at ___; slip op at 8. Defendant “should be gi ven the opportunity to challenge the reasonableness of the costs below.” Id . at ___; slip op at 8, citing People v Sanders , 296 Mich App 710, 715; 825 NW2d 87 (2012).

Accordingly, we remand this case “to the trial court for furthe r proceedings to establish a factual basis for the . . . costs imposed, under MCL 769.1k(1)( b)( iii ), or to alter [the amount imposed], if appropriate.” Konopka , __ Mich App at ___; slip op at 8.

2 We also found that the amendments did not violate the separati on of powers, equal protections, substantive due process, or t he ex post factor clauses. Id. at __; slip o p at 8-16.-4- III. CONCLUSION

Consistent with Konopka, supra , we remand this case for further proceedings to establish the factual basis for the amount of court costs imposed. MCL 7 69.1k(1)(b)( iii ). We do not retain jurisdiction.

/s/ Michael J. Riordan /s/ Kathleen Jansen /s/ Karen M. Fort Hood