People v. Carter

Citation480 Mich. 1063,743 N.W.2d 918
Decision Date08 February 2008
Docket NumberCOA No. 270195.,Docket No. 134687.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Steven Michael CARTER, Defendant-Appellee.
CourtSupreme Court of Michigan

On January 9, 2008, the Court heard oral argument on the application for leave to appeal the July 3, 2667 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by the Court.

CORRIGAN, J., dissents and states as follows:

I dissent from the order denying leave to appeal. I would grant leave and reverse the Court of Appeals judgment insofar as it remands the case to the trial court to consider sua sponte, defendant's financial circumstances before imposing as a condition of probation the repayment of court-appointed attorney fees. Twenty-one years ago this Court unanimously held that MCL 771.3(6)(a) does not require a sentencing court to inquire into the defendant's ability to pay before imposing the repayment of attorney fees as a condition of probation. People v. Music, 428 Mich. 356, 357, 408 N.W.2d 795 (1987); see also People v. Grant, 455 Mich. 221, 565 N.W.2d 389 (1997); People v. Hill, 430 Mich. 898, 425 N.W.2d 95 (1988). The trial court in this case conducted the sentencing proceeding under controlling principles of law. Music. The majority sub silentio overturns this authority in allowing the Court of Appeals judgment to stand.

I would further grant to overrule People v. Dunbar, 264 Mich.App. 240, 690 N.W.2d 476 (2004), which is inconsistent with Music, insofar as it chose a case from the United States Court of Appeals for the Fourth Circuit to conclude that absent any objection to the order requiring the repayment of attorney fees, the federal constitution compels a state court to consider a defendant's ability to pay without any claim of indigency by the defendant. A court is compelled to inquire into ability to pay before sanctioning a defendant by revoking probation; it need not conduct such an inquiry sua sponte, before imposing costs. The imposition of costs is distinct from a sanction for nonpayment.

I. Facts and Procedural Posture

Defendant was charged with fourth-degree criminal sexual conduct (CSC IV) (force or coercion) after grabbing the victim's buttocks as she walked out of a Church's Chicken restaurant in Detroit. Because defendant was indigent, the court appointed counsel for him. The order appointing counsel explicitly stated that the court might require defendant to pay the cost of his court-appointed attorney. After a jury trial, defendant was convicted of CSC IV. At sentencing, the court did not mention that defendant would be required to reimburse the county for the cost of appointed counsel. Defendant did, nonetheless, sign a probation order acknowledging that he agreed to pay attorney fees of $730 as a condition of his probation.

The Court of Appeals affirmed defendant's conviction, but remanded "for the trial court to consider defendant's attorney fees in light of his current and future financial circumstances and for resentencing." People v. Carter, 2007 WL 1932025 unpublished opinion per curiam of the Court of Appeals, issued July 3, 2007 (Docket No. 270195), p. 1. In regard to defendant's financial ability to repay attorney fees, the Court of Appeals pointed out that the issue was unpreserved, so it reviewed the claim for plain error affecting substantial rights. The Court of Appeals held that "a court must indicate that, in assessing attorney fees, it considered defendant's ability to pay. Dunbar, supra at 254-255, 690 N.W.2d 476." Carter, supra at 7.

Defendant failed, to raise the issue of his ability to pay the assessed fees and costs at sentencing. Therefore, the court was not required to hold a hearing. See Music, supra at 361-362, 408 N.W.2d 795. However, in assessing attorney fees to defendant, the court failed to indicate whether it considered defendant's financial circumstances. Therefore, we remand this case for the trial court to consider these assessments in light of defendant's current and future financial circumstances. Dunbar, supra at 255, 690 N.W.2d 476. [Carter, supra at 7.]

The prosecution appealed. This Court directed the Clerk to schedule oral argument on whether to grant the application or take other peremptory action. 480 Mich. 938, 741 N.W.2d 23 (2007). The order directed the parties to submit supplemental briefs "addressing whether the constitutional underpinnings of People v. Dunbar, 264 Mich.App. 240, 690 N.W.2d 476 (2004), are sound." Id.

II. Standard of Review

Defendant did not argue at sentencing that the court was required to inquire into his financial ability to pay before ordering him to reimburse the court for attorney fees. This Court reviews this unpreserved issue for plain error affecting substantial rights. People v. Carines, 460 Mich. 750, 774, 597 N.W.2d 130 (1999); Dunbar, supra at 251, 690 N.W.2d 476.

III. Analysis
A. MCL 771.3(6)(a) Requirements

The sentencing court ordered defendant to pay the cost of his court-appointed attorney as a condition of probation under MCL 771.3(2).1 MCL 771.3(6)(a) discusses a sentencing court's obligation to consider the defendant's ability to pay these fees:

If the court imposes costs under subsection (2) as part of a sentence of probation, all of the following apply:

(a) The court shall not require a probationer to pay costs under subsection (2) unless the probationer is or will be able to pay them during the term of probation. In determining the amount and method of payment of costs under subsection (2), the court shall take into account the probationer's financial resources and the nature of the burden that payment of costs will impose, with due regard to his or her other obligations.

In Music, this Court unanimously held that MCL 771.3(6)(a)2 does not require "that a sentencing judge inquire, before ordering that a defendant pay costs, as to the defendant's ability to pay the costs." Music, supra at 357, 408 N.W.2d 795. This Court agreed with the Court of Appeals holding that the statute does not require that the sentencing court hold a hearing or make findings on the record to determine whether a defendant, who has not asserted an inability to pay costs, is able to make such payment. Id. at 359, 408 N.W.2d 795. This Court also accepted the explanation by the Court of Appeals that the statute distinguishes between the imposition of costs and the sanctioning for the nonpayment of costs; a court may impose costs without considering the defendant's ability to pay, but may not enforce payment of those costs without determining whether the defendant is able to pay. Id. at 360, 408 N.W.2d 795. This Court concluded as follows:

[MCL 771.3(6)(a) does not expressly state that a trial court must conduct a hearing to determine whether a defendant has the ability to pay costs. In the absence of a clear statement from the Legislature, the statute is to be given a reasonable interpretation. A probationer is free to ask the sentencing judge to reduce the amount of restitution or costs, and it is clear that a probationer cannot be punished for failure to pay restitution or costs that the probationer cannot afford. Moreover, a defendant who timely asserts an inability to pay restitution or costs must be heard. In that situation, a sentencing judge shall determine whether the restitution or costs are within the defendant's meads. [Music, supra at 361-362, 408 N.W.2d 795.]

Subsequently, in People v. Hill, 430 Mich. 898, 425 N.W.2d 95 (1988), this Court, citing Music, supra, explained, "Unless a defendant indicates an inability to pay, the sentencing judge need not inquire into the defendant's ability to pay prior to imposing costs and restitution as conditions of probation." Hill, supra at 899, 425 N.W.2d 95.

Here, the sentencing court imposed attorney fees as a condition of defendant's probation, as permitted by MCL 771.3(2). Defendant had notice of the fees and an opportunity to object, but did not do so. The petition and order appointing counsel stated, "I understand that I may be ordered to contribute and/or reimburse the court for all or part of my attorney and defense costs."3 In Dunbar, supra at 254, 690 N.W.2d 476 the defendant's petition and order appointing counsel similarly stated that, he "may be ordered to repay the court" for his court-appointed attorney fees. The Dunbar panel held that this petition and order sufficiently notified the defendant of the court's decision to order the payment of attorney fees. Id. The petition and order in the instant case, which is virtually identical to the, one at issue in Dunbar, similarly, notified defendant about his responsibility to pay the attorney fees.

Defendant also had an opportunity to object. The Dunbar panel held that the defendant, who was given notice of the fees by the petition and order appointing counsel, was given the opportunity to object at sentencing. Id. at 254, 690 N.W.2d 476. "In regard to defendant's opportunity to be heard, defendant was not prevented from objecting at sentencing and asserting his indigency." Id. Similarly in the instant case, defendant, who had prior notice of the fees through the petition and order appointing counsel, had an opportunity to object at sentencing. Further, on the day of the sentencing hearing, defendant signed the probation order in which he agreed to pay $730 in attorney fees. He could have objected to the fees at any time on the record; he also signed the order without any protest. Thus, defendant had notice of the fees and a meaningful opportunity `to object to those fees.

Under Music, the sentencing court did not violate MCL 771.3(6)(a) by imposing attorney fees without holding a hearing or stating on the 9record that it considered defendant's financial resources. The sentencing court was, required to consider defendant's financial resources...

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