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### 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Plaintiff-Appellee, UNPUBLISHED February 18, 2016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: C AVANAGH , P.J., and R IORDAN and G ADOLA , JJ.

P ER C URIAM

. Defendant appeals by delayed leave granted 1 his convictions and the imposition of court costs following the entry of guilty pleas in five separate lowe r court cases. In case number 08- 013704-FC, defendant was charged with armed robbery, MCL 750.52 9, carjacking, MCL 750.529a, unlawfully driving away an automobile (“UDAA”), MCL 7 50.413, possession of a firearm during the commission of a felony (“felony-firearm”), M CL 750.227b, and possession of a firearm by a person convicted of a felony (“felon-in-possessi on”), 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 c arjacking, felony-firearm, and felon-in-possession. In case number 08-013707-FC, defendant was charged with armed robbery a nd 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, an d felony-firear m. 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’ imprisonmen t for each felony-firearm convic tion, to be served consecutive to the other sentences.

1 People v Key , unpublished order of the Court of Appeals, entered November 2 1, 2014 (Docket No. 324076).-2- We affirm, but remand for a dete rmination of the factual basis for the court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 commit ted over the course of several weeks in 2008. On May 30, 2008, defendant went to an a uto 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 t he car. He then drove off with the vehicle.

On June 6, 2008, defendant went to a used car lot and drove of f with a vehicle after again threatening an employee with a f irearm. Defendant performed a similar act on June 18, 2008. However, during this incident, an employee attempted to stop de fendant from taking the car by holding onto the car door. He wa s injured when he fell to the pavement as defendant drove
away.
On June 20, 2008, defendant entered a n auto parts store and as ked 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 strugg le 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 equipmen t into defendant’s car, and th ey drove to his grandmother’s house. The friend exited the car a nd discovered that defendant ’s grandmother was not home. As the friend returned to his vehi cle, another indi vidual threaten ed him with a gun, allowing defendant to drive away w ith the lawn equipment.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that def ense counsel provided ineffecti ve assistance when he failed to bring defendant’s drug addic tion to the court’s attention an d thereby ensure that the trial court established an adequate factual basis for each of his pleas, in cluding the requisite mental state. We disagree.

A. STANDARD OF REVIEW

Because defendant did not move for a new trial or a Ginther 2 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 inef fective 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 re views the ultimate constituti onal 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 defen dant the right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 2 0. In order to prove that counsel provided ineffective assistance, a defendant must demonstrate t hat (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 de fendant 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 b asis 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 infe rence 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 th e 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 st ill be drawn from what the defendant says. [ Id . (quotation marks and citation omitted.]

On appeal, defendant only contes ts the factual basis of his pl eas to the extent that the trial court failed to question him rega rding 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 t o raise this argumen t in the trial cour t.

We reject defendant’s claim tha t his substance abuse could est ablish a basis for finding that he lacked the requisite men tal state for each offense. MC L 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, incl uding a controlled substance, other s ubstance or compound, or combinati on of alcoholic liquor, drug, or other su bstance or compound.

(2) It is an affirmative defense to a specific intent crime, f or which the defendant has the burden of proof by a preponderance of the evi dence, that he or she voluntarily consumed a lega lly obtained and properly used m edication 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 intoxicatio n except in one narrow circumstance . . . .” [Quotation marks and citation omitted.]) . Defendant fails to argue, let alone establish, that he consumed a leg ally obtained and properly use d medication or substance before he committed the crimes. See MCL 768.37(2). Instead, he expre ssly relies on his “ addict[ion] to controlled substances” in mak ing this argument, and he appea rs 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. (Empha sis added.) Thus, defendant’s drug addiction is irrelevant to wh ether the trial court establi shed 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 t he trial court on that ground wou ld have been meritless. “Failing to advance a meritless argument or raise a futile objection does n ot 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 basi s of his pleas was insufficient apart from his claim that his substance abuse addi ction 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 plea s 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 reaso nableness. See Vaughn , 491 Mich at 669-671.

Furthermore, even if we assume, solely for the sake of argumen t, that defense counsel’s failure to bring defendant’s drug addiction to the trial court’ s attention fell below an objective standard of reasonableness, defe ndant has not demonstrated the prejudice necessar y 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 involveme nt in some sort of drug treatment program while incarce rated.” Therefore, defendant as serts that the outcome of his

3 If defendant intended to raise s uch 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 disc over 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 dr ug abuse to the court’s attention at the plea hearing, it is apparent that the trial court was we ll aware of defendant’s substance abuse problems before it sentenced defendant given the numerous references to defendant’s substance abuse in the presenten ce investigation report, defend ant’s own discussion of his drug addiction when he addressed the court during the sentencing hea ring, and the trial court’s comments regarding defendant’s s ignificant drug addictions duri ng 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 co urt costs was improper because the costs were excessive and not specifically authorize d 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. Althou gh 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 vers ion of MCL 769.1k(1)(b)( ii ) only permitted the im position of court costs that were separately authorized by statute. At the time of def endant’s sentencing, the court costs imposed by the trial court were not separately authorized by th e statutes underlying defendant’s convictions nor any other st atute, 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 reaso nably related to the actual costs incurred by the tria l court without separately cal culating 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 measur e 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, th erefore, “independently authori zes the imposition of costs in addition to those costs authorized by the statute for the sente ncing 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 i n ordering defendant to pay costs and attorney fees. See id . Additionally, we addres sed and rejected in Konopka , 309 Mich App at 370-376, the same ex post facto constitutional challenge that d efendant 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 c ourt,” 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 establis h a factual basi s for its impos ition of $600 in court costs. Without a factual basis for the costs impos ed, we cannot determine whethe r the costs were reasonably related to the actual costs incurred by the trial court, as req uired by MCL 769.1k(1)(b)( iii ). Id . at 359-360. Further, in this case, de fendant argues that the cost s 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 chall enge 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 proce edings 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 provi ded ineffective assistance. Likewise, defendant has failed to establish that the trial cour t improperly imposed court costs. However, remand is necessary so that the trial court may establ ish 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