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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 4, 2017

v No. 328341

Macomb Circuit Court PAT RICHARD DOWDY, LC No. 2013-003792-FH

Defendant-Appellant.

Before: S TEPHENS , P.J., and S ERVITTO and S HAPIRO , JJ.

P ER C URIAM

.

Defendant appeals by delayed leave granted 1 the fees and costs imposed by the trial court when defendant pleaded guilty to violating the terms of his pro bation. The trial court revoked defendant’s probation, sentenced him to 60 days’ jail time, and ordered him to pay $120 in court costs and $120 in probation overs ight fees, among other things. We affirm in part, but vacate a portion of defendant’s judgment o f sentence, and remand for the ministerial task of amending defendant’s judgment of sentence.

On April 3, 2014, defendant pleaded guilty to false pretenses with the intent to defraud $200 or more but less than $1,000, MCL 750.218(3)(a). After en tering his guilty plea, defendant was sentenced to 12 months’ probation, 40 hours of community se rvice, and the completion of a

Class ‘A’ Life Decisions course. The trial court also ordered defendant to pay $53 in state minimum cost, a $75 crime victim fee, $120 in court costs, $120 in probation oversight fees, and $950 in additional defense costs. Defendant did not object to any of the costs imposed. Defendant did not seek leave to app eal that judgment of sentenc e.

Defendant was arraigned before t he trial court again on Januar y 8, 2015, for violating his probation. During this proceeding, defendant pleaded guilty to violating his probation in several ways, including breaking into ahigh school. As a result, defe ndant’s probation was revoked, and he was sentenced to 60 days’ jail time, with credit for one day served. In his January 22, 2015 judgment of sentence, the trial court ordered defendant to pay fees and costs almost identical to

1 People v Dowdy , unpublished order of the Court of Appeals, entered September 4, 2015 (Docket No. 328341).-2- those it imposed on defendant in his initial judgment of senten ce, the only differences being that

it increased defendant’s additiona l defense costs to $955, and added a 20% late fee of $527.12 for defendant’s failure to pay th e fees and costs previously im posed (except for his probation oversight fees, which defe ndant had paid in full).

Defendant first argues that the trial court erred when it orde red him to pay a $120 county oversight fee as part of his January 22, 2015 judgment of sente nce. We agree.

A defendant must object to a trial court’s imposition of costs and fees to preserve the issue on appeal. People v Konopka (On Remand) , 309 Mich App 345, 356; 869 NW2d 651 (2015), citing People v Dunbar , 264 Mich App 240, 251; 690 NW2d 476 (2004), overruled on other grounds by People v Jackson , 483 Mich 271, 290; 769 NW2d 630 (2009). Defendant failed to object when the trial court ordered him to pay the $1 20 oversight fee, thus, this issue is not preserved.

Because defendant’s challenge to the trial court’s imposition of an oversight fee was not preserved, we review defendant’s challenge for plain error. Konopka , 309 Mich App at 356. To avoid forfeiture under the plain error rule, the defendant must demonstrate that an error occurred, the error was plain, and the plain error affected substantial r ights. People v Buie , 285 Mich App 401, 407; 775 NW2d 817 (2009), citing People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). “The third prong requires a showing of prejudice, whic h occurs when the error affected

the outcome of the lower court proceedings.” People v Putman , 309 Mich App 240, 243; 870 NW2d 593 (2015). This Court reviews questions of statutory int erpretation de novo. Konopka

, 309 Mich App at 356.

In general, the scope of a defendant’s appeal from a resentenc ing following the revocation of probation is limite d to only the issues the defen dant could not have raised in an appeal from their initial conviction. See People v Kaczmarek , 464 Mich 478, 482-483, 485; 628 NW2d 484 (2001). Defendant’s challenge relating to his probati on oversight fees does fall within the scope of this appeal because he challenges the trial court’s authority to impose a probation oversight fee following the revocation of his probati on, which is an issue defendant could not have raised in an appeal from his original April 3, 2 014 judgment of sentence.

The trial court ordered this probation oversight fee without e xplanation on the record, and thus, it is unclear whether the trial court was reimposing the fee it ordered as part of defendant’s April 3, 2014 judgment of sentence, or if it was imposing a newoversight fee. Although it appears to be simply a reimposition of the original oversight f ee; if that is the case, this was error because defendant had paid the original fee in full by the time his probation was revoked. The court acknowledged the same on the record. If the trial court were enacting a new probation oversight fee, it was w ithout authority to do so.

Despite being the focus of the briefing by the parties on this issue, MCL 769.1k(1)(b)( ii ) and MCL 769.1k(1)(b)( iii ) have no bearing on defendant’s challenge to the trial court’s authority to impose a probation oversight fee. Pursuant to MCL 769.1k(1) (b), “the court may impose any or all” of the fees under MCL 769.1k(1)(b)( ii ) and MCL 769.1k(1)(b)( iii ). Thus, MCL 769.1k(1)(b)( ii ) and MCL 769.1k(1)(b)( iii ) grant trial courts the authority to impose certain fines, costs, and assessments at their discretion. The relatio nship between these two provisions-3- was clarified in Konopka , where this Court held that 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, in contrast to the amended version of MCL 769.1k(1)(b) ( ii ), which provides that a court may impose ‘[a]ny cost authorized by the statute for a violatio n of which the defendant entered a plea of guilty or nolo contendere or the court determined that the defendant was guilty.’ ” Konopka , 309 Mich App at 357, quoting MCL 769.1k(1)(b)( ii ) (alteration in original). In addition, costs imposed under MCL 769.1k(1)(b)( iii ) must be “reasonably related to the actual costs incurred by the trial court . . . .”

A probation oversight fee is not a cost authorized by the stat ute defendant violated, MCL 750.218(3)(a), nor is it a cost tha t is reasonably related to t he actual costs incurred by the trial court in defendant’s revocation of probation proceeding. Thus, MCL 769.1k(1)(b)( ii ) and MCL 769.1k(1)(b)( iii ) are irrelevant here. The statute that authorizes the imposit ion of probation oversight fees is MCL 771.3(1)(d), which requires probationers sentenced in circuit court to pay a probation supervision fee. The trial court properly fulfille d this obligation when it ordered defendant to pay a $120 probation oversight fee as part of his April 3, 2014 judgment of

sentence. The trial court erre d however when, following the re vocation of defendant’s probation, it imposed a $120 probation oversight fee in defendant’s Januar y 22, 2015 judgment sentence.

The trial court revoked defendant’s probation when he pleaded guilty to violating his probation on January 8, 2015. Once defendant’s probation was r evoked, the trial court was

authorized to sentence defendant “in the same manner and to the same penalty as the court might have done if the probation order had never been made.” MCL 771 .4. However, the trial court could not impose a probation oversight fee on defendant pursuan t to MCL 771.3(1)(d), because defendant was no longer a probationer. See People v Krieger , 202 Mich App 245, 247-248; 507 NW2d 749 (1993) (holding that, once the defendant’s probation w as revoked, the trial court lacked the authority to retain the imposition of costs that wer e assessed as a condition of the defendant’s probation), superseded by statute on other grounds as stated in People v Lloyd , 284 Mich App 703, 709-710; 774 NW2d 347 (2009).

Thus, the trial court plainly erred when it imposed a probatio n oversight fee as part of defendant’s January 22, 2015 judgment of sentence because it la cked the authority to impose this fee under any statute. The erro r prejudiced defendant because he would not have had this fee imposed on him but for the trial court’s error. Finally, relie f is justified in this case because the error resulted in the imposition of a fee that was not authoriz ed by law, and permitting such a fee to stand would severely affect the fairness, integrity and publ ic reputation of judicial proceedings. Therefore, we vacate the portion of defendant’s J anuary 22, 2015 judgment of sentence which ordered the payment of the $120 probation oversi ght fee, and remand for the ministerial task of amending defe ndant’s judgment of sentence.

Defendant’s second argument on appeal is that the trial court erred when it ordered him to pay $120 in court costs because it did not articulate, on th e record, its reasons for doing so. The trial court imposed the sam e amount of court costs in defen dant’s April 3, 2014 judgment of sentence, and defendant failed to challenge the imposition of c osts at that time. It appears that the trial court was simply reimposing the same cost that defend ant had failed to pay. To that extent, defendant’s challenge t o the trial court’s imposition o f $120 in court costs is outside of the scope of this appeal because defendant could have raised th is issue in an appeal from his-4- April 3, 2014 judgmen t of sentence. See Kaczmarek , 464 Mich at 485. To the extent this is a newly imposed cost, the trial court was authorized to impose an y cost reasonably related to the actual costs incurred by the trial court under MCL 769.1k(b)(ii i). Defendant c oncedes that $68

was allowable under MCL 769.1 but that the trial court did not articulate a reason on the record for the additional $52 in court costs. Defendant has not, howe ver, provided any authority indicating that the trial court must provide solid figures to s upport his assessment of costs. We cannot objectively say that $52 w ould be unreasonable or unrela ted to those costs allowed under MCL 769.1k(b)(iii), which include salaries for court personnel and necessary expenses for the operation of the court.

Defendant’s third argument on a ppeal is that, because he is in digent, he is entitled to an ability-to-pay assessment in accordance with Jackson , 483 Mich at 292, concerning the assessment of court-appointed attorney fees, or that this Court should vacate the portion of his sentence ordering him to pay those fees. Defendant failed to o bject when the trial court ordered him to pay attorney fees, thus, this issue is not preserved. B ecause defendant’s challenge to the trial court’s order to pay attor ney fees was not preserved, thi s Court reviews defendant’s challenge for plain error. Konopka , 309 Mich App at 356. This Court reviews questions of

constitutional law de novo. Jackson , 483 Mich at 277.

Under MCL 769.1k(b)( iv ), the trial court was authorized to order defendant to repay t he cost “of providing legal assistan ce to the defendant.” However , in Jackson , the Michigan Supreme Court held that once a trial court attempts to enforce an imposition of court-appointed attorney fees “the defendant must be advised of this enforcemen t action and be given an opportunity to contest the enforcement on th e basis of his indi gency.” Jackson , 483 Mich at 292. If the defendant makes a timely challenge in the trial court to the enforcement of the fee, then the trial court is required to evaluate if a defendant “is indigent and unable to pay at that time or whether forced payment would work a manifest hardship on the de fendant at that time .” Id . at
292-293.

The trial court entered two o rders requiring defendant to pay the costs of his appointed counsel. Defendant’s January 22, 2015 judgment of sentence ord ered him to pay $955 2 in “Additional Defense Costs,” and on January 29, 2015, the trial court ordered defendant to reimburse Macomb County for the c osts of his appellate defense.

Defendant has not challenged the enforcement of these fees bef ore the trial court. In

accord with Jackson

, defendant may challenge the trial court’s enforcement of the im position of attorney fees due to his current indigency, but he must first r aise this in a timely challenge before the trial court, where the trial court will consider his abilit y to pay at that time. Jackson , 483

2 We note that the trial court in creased defendant’s “Additional Defense Costs” by $5 in his January 22, 2015 judgment of sente nce without explanation. Def endant does not challenge this increase on appeal, despite the fact he represented himself dur ing his probation revocation hearing. Furthermore, a check of the trial court file followin g oral argument confirms that defendant was assessed $955, tot al, for defense costs, and not $950 plus $955.-5- Mich at 292-293. Because defenda nt has failed to challenge the enforcement of the imposed fees would be premature.

Additionally, even if we wished to consider the merits of defe ndant’s challenge, he has made no showing that the trial court has actually attempted to enforce the collection of these

fees. Defendant has also faile d to provide any proof of his pr esent indigency. Thus, we would

be unable to exercise any meaningful revie w here even if we des ired to do so.

Finally, defendant requests that this Court waive defendant’s late fee of $527.12 pursuant to MCL 600.4803(1), through our authority to grant further or d ifferent relief as a case may require under MCR 7.216(A)(7). Defendant did not raise this is sue before the trial court, and thus failed to preserve this issue for appeal. People v Dupree , 486 Mich 693, 703; 788 NW2d 399 (2010). We therefore review t his claim for plain error. Konopka , 309 Mich App at 356.

In relevant part, MCL 600.4803(1) authorizes the imposition of a 20% late penalty on a person who fails to pay court costs within 56 days of the day p ayment is due. The statute also authorizes “the court” to modify the date payment is due, to es tablish installment payments, or to waive the late penalty upon the r equest of the person subject t o it. MCL 600.4803(1).

We decline to determine whether defendant’s late penalty shoul d be waived because, under MCL 600.4803(1), defendant is free to request that the tr ial court waive his late penalty, and it is unclear why defendant has instead requested relief di rectly from this Court. There is no evidence in the record that defendant has already requested tha t the trial court waive his late penalty, and defendant fails to specifically articulate why thi s Court should directly grant him relief. “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.” People v Payne , 285 Mich App 181, 195; 774 NW2d 714 (2009), quoting People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998) (quotation marks omitted).

We affirm in part, but vacate the portion of defendant’s judgm ent of sentence imposing a $120 probation oversight fee, and r emand for the ministerial ta sk of amending defendant’s judgment of sentence. We do not retain jurisdiction.

/s/ Cynthia Diane Stephens

/s/ Deborah A. Servitto /s/ Douglas B. Shapiro