-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 9, 2016

v No. 324026 Ingham Circuit Court COREY RAY TOWLES, LC No. 13-001088-FH

Defendant-Appellant.

Before: B OONSTRA , P.J., and K. F. K ELLY and M URRAY , JJ.

P ER C URIAM

. Defendant pleaded guilty to one count of breaking and entering with intent to commit a felony, MCL 750.110. The trial court sentenced defendant to 18 to 120 months’ imprisonment and ordered him to pay $11,192.83 in costs and fees, including $635 in court costs. Defendant now appeals only the imposition of court costs by delayed leave granted. 1 We affirm.

Defendant argues in his brief on appeal that because plaintiff had no objection to vacating the court costs when the issue was raised below, it cannot now take a contrary position. See Blazer Foods, Inc v Rest Prop, Inc , 259 Mich App 241, 252; 673 NW2d 805 (2003) (“A party may not take a position in the trial court and subsequently see k redress in an appellate court that is based on a position contrary to that taken in the trial cour t.”). However, as plaintiff points out, the law changed after it responded below, as the Legislature th ereafter amended MCL 769.1k and gave the amendment retroactive effect. There is no reason why plaintiff’s legal argument cannot change when the law itself has changed. We therefore de cline to grant defendant relief on that basis, and will evaluate on its merits the issue of whe ther the trial court properly imposed
court costs.

Defendant argues that MCL 769.1k, as interpreted by People v Cunningham , 496 Mich 145; 852 NW2d 118 (2014), did not pr ovide the trial court with statutory authority to impose court costs at sentencing. Furth er, he argues, the Legislature ’s post- Cunningham amendment of § 1k, 2014 PA 352, cannot be given re troactive effect because t o do so would violate the state

1 People v Towles , unpublished order of the Court of Appeals, entered November 2 1, 2014 (Docket No. 324026).-2- and federal Ex Post Facto Clauses. We disagree. We review iss ues of statutory interpretation de

novo. People v Earl , 495 Mich 33, 36; 845 NW2d 721 (2014).

Resolution of this issue is directly controlled by this Court’ s recent published decision in People v Konopka (On Remand) , 309 Mich App 345; 869 NW2d 651 (2015). Konopka explains:

If the Legislature had not amended MCL 769.1k, the cost award in this case would have been invalid under Cunningham

. . . . However, the trial court’s cost award is authorized by the ame nded version of MCL 769.1k(1)(b)( iii ). This amended version becam e effective on October 17, 2014, and applies to all fines, costs, and assessments under MC L 769.1k before June 18, 2014, and after the effective date of the amendatory a ct. The amended act was a curative measure to address the authority of courts t o impose costs under MCL 769.1k before the issuance of Cunningham . “ ‘When a new law makes clear that it is retroactive, an appellate court must app ly that law in reviewing judgments still on appeal that were rendered before t he law was enacted, and must alter the outcome accordingly.’ ” [ Id . at 356-357 (citations omitted).]

Because the trial court sentenced defendant on February 12, 201 4, the imposition of court costs was authorized and valid.

This Court in Konopka also held that the costs imposed under MCL 769.1k(b)( iii ) are not a form of punishment. Id . at 370. Further, the Court conc luded that the costs provisio n in MCL 769.1k(1)(b)( iii ) is not “so punitive in purpose or effect that it negates the Legislature’s civil intent.” Id . at 376. Therefore, the retro active applicatio n of court cost s does not violate the Ex Post Facto Clauses of the M ichigan and United States Constit utions. Id

.
Affirmed.

/s/ Mark T. Boonstra /s/ Kirsten Frank Kelly /s/ Christopher M. Murray