-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

February 18, 2016 

v No. 324076 

Wayne Circuit Court 

ALEX MARCO KEY, LC No. 08-013704-FC, 

 08-013705-FC, 

 08-013706-FC, 

 08-013707-FC, 

 08-013708-FC 

 Defendant-Appellant. 

Before: CAVANAGH, P.J., and RIORDAN and GADOLA, JJ. 

PER CURIAM. 

 Defendant appeals by delayed leave granted1

 his convictions and the imposition of court 

costs following the entry of guilty pleas in five separate lower court cases. In case number 08-

013704-FC, defendant was charged with armed robbery, MCL 750.529, carjacking, MCL 

750.529a, unlawfully driving away an automobile (“UDAA”), MCL 750.413, possession of a 

firearm during the commission of a felony (“felony-firearm”), MCL 750.227b, and possession of 

a firearm by a person convicted of a felony (“felon-in-possession”), MCL 750.224f. In case 

number 08-013705-FC, defendant was charged with armed robbery. In case number 08-013706-

FC, defendant was charged with carjacking, felony-firearm, and felon-in-possession. In case 

number 08-013707-FC, defendant was charged with armed robbery and assault with intent to do 

great bodily harm less than murder, MCL 750.84. In case number 08-013708-FC, defendant was 

charged with carjacking, felon-in-possession, and felony-firearm. Defendant was sentenced, as 

a fourth habitual offender, MCL 769.12, to concurrent terms of 18 to 40 years’ imprisonment for 

each carjacking, felon-in-possession, armed robbery, unlawfully driving away a motor vehicle, 

and assault with intent to do great bodily harm conviction. He was also sentenced to concurrent 

terms of two years’ imprisonment for each felony-firearm conviction, to be served consecutive to 

the other sentences. 

 

1 People v Key, unpublished order of the Court of Appeals, entered November 21, 2014 (Docket 

No. 324076). 
-2- 

 We affirm, but remand for a determination of the factual basis for the court costs imposed 

by the trial court. 

I. FACTUAL BACKGROUND 

 This case arises from a series of crimes that defendant committed over the course of 

several weeks in 2008. On May 30, 2008, defendant went to an auto service store and asked to 

test drive a vehicle. During the test drive, defendant pointed a firearm at the employee in the 

vehicle and ordered him out of the car. He then drove off with the vehicle. 

 On June 6, 2008, defendant went to a used car lot and drove off with a vehicle after again 

threatening an employee with a firearm. Defendant performed a similar act on June 18, 2008. 

However, during this incident, an employee attempted to stop defendant from taking the car by 

holding onto the car door. He was injured when he fell to the pavement as defendant drove 

away. 

 On June 20, 2008, defendant entered an auto parts store and asked a customer if she could 

jump start his car. She agreed and drove defendant to his car. As she exited her vehicle, 

defendant attempted to get into her driver’s seat, and a struggle ensued. Defendant ultimately 

drove away with the car, at which time one of the doors hit the woman, knocking her to the 

ground. 

 Finally, on June 25, 2008, defendant hired a friend to cut his grandmother’s lawn. The 

friend put his lawn care equipment into defendant’s car, and they drove to his grandmother’s 

house. The friend exited the car and discovered that defendant’s grandmother was not home. As 

the friend returned to his vehicle, another individual threatened him with a gun, allowing 

defendant to drive away with the lawn equipment. 

II. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant first argues that defense counsel provided ineffective assistance when he failed 

to bring defendant’s drug addiction to the court’s attention and thereby ensure that the trial court 

established an adequate factual basis for each of his pleas, including the requisite mental state. 

We disagree. 

A. STANDARD OF REVIEW 

 Because defendant did not move for a new trial or a Ginther2

 hearing, our review of his 

ineffective assistance of counsel claim is limited to mistakes apparent from the record. People v 

Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). “A claim of ineffective assistance of 

counsel is a mixed question of law and fact. A trial court’s findings of fact, if any, are reviewed 

for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective 

assistance of counsel claim de novo.” Id., citing People v LeBlanc, 465 Mich 575, 579; 640 

 

2 People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). 
-3- 

NW2d 246 (2002). 

B. ANALYSIS 

 The United States and Michigan Constitutions guarantee a defendant the right to effective 

assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. In order to prove that counsel 

provided ineffective assistance, a defendant must demonstrate that (1) “ ‘counsel’s representation 

fell below an objective standard of reasonableness,’ ” and (2) defendant was prejudiced, i.e., 

“that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different.’ ” People v Vaughn, 491 Mich 642, 669-671; 821 

NW2d 288 (2012), quoting Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L 

Ed 2d 674 (1984). “A defendant must also show that the result that did occur was fundamentally 

unfair or unreliable.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). 

“Effective assistance of counsel is presumed,” and a defendant bears a heavy burden of proving 

otherwise. Petri, 279 Mich App at 410. 

 Pursuant to MCR 6.302(D)(1), “[i]f [a] defendant pleads guilty, the court, by questioning 

the defendant, must establish support for a finding that the defendant is guilty of the offense 

charged or the offense to which the defendant is pleading.” An adequate factual basis exists if 

“the fact-finder could have found the defendant guilty on the basis of the facts elicited from the 

defendant at the plea proceeding.” People v Fonville, 291 Mich App 363, 377; 804 NW2d 878 

(2011). Likewise, 

A factual basis to support a plea exists if an inculpatory inference can be drawn 

from what the defendant has admitted. This holds true even if an exculpatory 

inference could also be drawn and the defendant asserts that the latter is the 

correct inference. Even if the defendant denies an element of the crime, the court 

may properly accept the plea if an inculpatory inference can still be drawn from 

what the defendant says. [Id. (quotation marks and citation omitted.] 

 On appeal, defendant only contests the factual basis of his pleas to the extent that the trial 

court failed to question him regarding his mental state at the time that each offense was 

committed. He contends that he lacked the requisite mens rea for each offense because he was 

addicted to controlled substances when he committed the crimes, and that defense counsel was 

ineffective in failing to raise this argument in the trial court. 

 We reject defendant’s claim that his substance abuse could establish a basis for finding 

that he lacked the requisite mental state for each offense. MCL 768.37 provides, in relevant part: 

 (1) Except as provided in subsection (2), it is not a defense to any crime 

that the defendant was, at that time, under the influence of or impaired by a 

voluntarily and knowingly consumed alcoholic liquor, drug, including a 

controlled substance, other substance or compound, or combination of alcoholic 

liquor, drug, or other substance or compound. 

 (2) It is an affirmative defense to a specific intent crime, for which the 

defendant has the burden of proof by a preponderance of the evidence, that he or 

she voluntarily consumed a legally obtained and properly used medication or 
-4- 

other substance and did not know and reasonably should not have known that he 

or she would become intoxicated or impaired. 

See also People v Nickens, 470 Mich 622, 631 n 7; 685 NW2d 657 (2004) (“[T]he enactment of 

MCL 768.37 . . . abolished the defense of voluntary intoxication except in one narrow 

circumstance . . . .” [Quotation marks and citation omitted.]). Defendant fails to argue, let alone 

establish, that he consumed a legally obtained and properly used medication or substance before 

he committed the crimes. See MCL 768.37(2). Instead, he expressly relies on his “addict[ion]

to controlled substances” in making this argument, and he appears to concede that this drug use 

was improper given his claim of prejudice, discussed supra, arising from the fact that his 

sentences did not incorporate a drug treatment program. (Emphasis added.) Thus, defendant’s 

drug addiction is irrelevant to whether the trial court established an adequate factual basis for 

each plea, as defendant’s intoxication or drug abuse could not have negated the mental state 

required for any of his offenses. See MCR 6.302(D)(1); Fonville, 291 Mich App at 377. As 

such, raising an argument in the trial court on that ground would have been meritless. “Failing to 

advance a meritless argument or raise a futile objection does not constitute ineffective assistance 

of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). 

 Additionally, defendant does not contend that the factual basis of his pleas was 

insufficient apart from his claim that his substance abuse addiction negated the requisite mental 

state for each crime, see Fonville, 291 Mich App at 396, or assert that defense counsel was 

ineffective in failing to contest the factual basis of his pleas on any ground other than his drug 

addiction.3

 Moreover, our review of the record confirms that defendant’s admissions at the plea 

hearing provided a sufficient factual basis for each conviction—including the requisite mental 

state, if required for the offense. See id. Thus, defendant has failed to establish that defense 

counsel’s performance fell below an objective standard of reasonableness. See Vaughn, 491 

Mich at 669-671. 

 Furthermore, even if we assume, solely for the sake of argument, that defense counsel’s 

failure to bring defendant’s drug addiction to the trial court’s attention fell below an objective 

standard of reasonableness, defendant has not demonstrated the prejudice necessary to establish a 

claim of ineffective assistance of counsel. See id. Notably, defendant does not assert prejudice 

on the basis that the trial court improperly accepted his pleas given his argument regarding his 

mental state. Rather, defendant argues that if the trial court had been aware of his drug problem, 

his sentences could have “recommended or required his involvement in some sort of drug 

treatment program while incarcerated.” Therefore, defendant asserts that the outcome of his 

 

3

 If defendant intended to raise such claims on appeal, we deem them abandoned because 

defendant cites no authority and provides no analysis regarding the adequacy of his admissions 

for establishing the factual bases of his pleas apart from his claim regarding his substance abuse. 

See People v Payne, 285 Mich App 181, 195; 774 NW2d 714 (2009) (“An appellant may not 

merely announce his position and leave it to this Court to discover and rationalize the basis for 

his claims, nor may he give only cursory treatment with little or no citation of supporting 

authority.” [Citation omitted.]). 
-5- 

sentencing “could have been different had counsel prepared this case more thoroughly by 

making sure [defendant’s] addiction was brought to the court’s attention during the [p]lea 

[h]earing.” While defense counsel did not bring defendant’s drug abuse to the court’s attention 

at the plea hearing, it is apparent that the trial court was well aware of defendant’s substance 

abuse problems before it sentenced defendant given the numerous references to defendant’s 

substance abuse in the presentence investigation report, defendant’s own discussion of his drug 

addiction when he addressed the court during the sentencing hearing, and the trial court’s 

comments regarding defendant’s significant drug addictions during sentencing. 

 Thus, defendant’s ineffective assistance of counsel claim must fail. 

III. IMPOSITION OF COURT COSTS 

 Next, defendant argues that the trial court’s imposition of court costs was improper 

because the costs were excessive and not specifically authorized by the Michigan Legislature, as 

required by People v Cunningham, 496 Mich 145, 149; 852 NW2d 118 (2014). Additionally, 

defendant argues that the court costs imposed in this case are excessive and violate the ex post 

facto clause of the United States and Michigan Constitutions. Although we disagree that the trial 

court’s imposition of court costs was improper, we remand for a determination of the factual 

basis for the costs imposed. 

A. STANDARD OF REVIEW 

Because defendant failed to object when the trial court imposed court costs, we review 

his unpreserved challenge for plain error. People v Konopka (On Remand), 309 Mich App 345, 

356; 869 NW2d 651 (2015). “Statutory interpretation presents a question of law that we review 

de novo.” Id. 

B. ANALYSIS 

 As defendant contends, the Michigan Supreme Court held in Cunningham, 496 Mich at 

154, that the former version of MCL 769.1k(1)(b)(ii) only permitted the imposition of court costs 

that were separately authorized by statute. At the time of defendant’s sentencing, the court costs 

imposed by the trial court were not separately authorized by the statutes underlying defendant’s 

convictions nor any other statute, as required under Cunningham, 496 Mich at 158. 

 However, after Cunningham was decided, the Legislature amended MCL 

769.1k(1)(b)(iii) so that a trial court is authorized to impose “any cost reasonably related to the 

actual costs incurred by the trial court without separately calculating those costs involved in the 

particular case . . . .” MCL 769.1k(1)(b)(iii).4

 Thus, MCL 769.1k(1)(b)(iii), as amended, 

 

4

 The amendment was specifically described as “a curative measure to address the authority of 

courts to impose costs under MCL 769.1k before Cunningham was issued. 2014 PA 352, 

enacting § 2.” Konopka, 309 Mich App at 357. 
-6- 

“provides for an award of certain costs that are not independently authorized by the statute for 

the sentencing offense,” and, therefore, “independently authorizes the imposition of costs in 

addition to those costs authorized by the statute for the sentencing offense.” Konopka, 309 Mich 

App at 357-358. 

The amended version of the statute applies retroactively to all fines, costs, and 

assessments imposed under MCL 769.1k before June 18, 2014, and after October 17, 2014, the 

effective date of the amendment. Konopka, 309 Mich App at 357, citing 2014 PA 352. 

Defendant was sentenced on January 27, 2009. Thus, the amended version of MCL 769.1k 

applies in this case, and the trial court did not plainly err in ordering defendant to pay costs and 

attorney fees. See id. Additionally, we addressed and rejected in Konopka, 309 Mich App at 

370-376, the same ex post facto constitutional challenge that defendant raises with regard to the 

retroactive effect of the amended version of MCL 769.1k. 

 However, pursuant to the amended version of MCL 769.1k(1)(b)(iii), court costs must be 

“reasonably related to the actual costs incurred by the trial court,” even though a court need not 

separately calculate the costs involved in each case. Id. at 359, 355. At the sentencing hearing, 

the trial court did not establish a factual basis for its imposition of $600 in court costs. Without a 

factual basis for the costs imposed, we cannot determine whether the costs were reasonably 

related to the actual costs incurred by the trial court, as required by MCL 769.1k(1)(b)(iii). Id. at 

359-360. Further, in this case, defendant argues that the costs were excessive, thereby 

challenging the reasonableness of the costs, like the defendant in Konopka. See id. at 360. 

Accordingly, defendant should be given the opportunity to challenge the reasonableness of the 

costs imposed. Id., citing People v Sanders, 296 Mich App 710, 715; 825 NW2d 87 (2012), 

overruled in part by Cunningham, 496 Mich 145. 

Thus, we remand this case “to the trial court for further 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.” Id. 

IV. CONCLUSION 

 Defendant has failed to demonstrate that defense counsel provided ineffective assistance. 

Likewise, defendant has failed to establish that the trial court improperly imposed court costs. 

However, remand is necessary so that the trial court may establish a factual basis for—or alter, if 

appropriate—the court costs imposed under MCL 769.1k. 

 Affirmed, but remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction. 

/s/ Mark J. Cavanagh 

/s/ Michael J. Riordan 

/s/ Michael F. Gadola