Order Michigan Supreme Court
Lansing, Michigan
May 23, 2008 Clifford W. Taylor,
Chief Justice
134368 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 134368
COA: 277805
St. Clair CC: 05-000821-FH
KEVIN LEE WILLEY,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the June 12, 2007 order of the
Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting
leave to appeal, we VACATE that portion of the November 22, 2005 Amended Judgment
of Sentence of the St. Clair Circuit Court that ordered the defendant to pay attorney fees,
and we REMAND this case to that court for a decision on attorney fees that considers the
defendant’s ability to pay now and in the future. See People v Dunbar, 264 Mich App
240 (2004), lv den 473 Mich 881 (2005). At the trial court’s discretion, the decision may
be made based on the record without the need for a formal evidentiary hearing. If the
court decides to order the defendant to pay attorney fees, it shall do so in a separate order.
Id. In all other respects, the application for leave to appeal is DENIED, because we are
not persuaded that the remaining question presented should be reviewed by this Court.
We do not retain jurisdiction.
CORRIGAN, J., concurs in part and dissents in part and states as follows:
I dissent from the majority’s decision to vacate the trial court’s order requiring
defendant to repay his court-appointed attorney fees and to remand the case for the trial
court to consider defendant’s ability to pay. Because an order for the repayment of
attorney fees must be separate from the judgment of sentence, however, I join the Court’s
order insofar as it remands to the trial court to order the repayment of attorney fees in a
separate order.
2
Defendant had notice of the fees and an opportunity to object, but failed to do so.
Because defendant did not timely object to the trial court’s order and the court has not yet
enforced the order, the court was not required to state on the record that it had considered
his ability to pay. Further, because the trial court already stated on reconsideration that it
did consider defendant’s ability to pay, any error was harmless.
I. Facts and Procedural Posture
Defendant was charged with operating a motor vehicle while under the influence
of liquor, third offense (OUIL 3d), driving while his license was suspended or revoked,
second offense (DWLS 2d), and with being a third-offense habitual offender after his
vehicle was stopped and a test indicated that he had a blood-alcohol content of 0.21
percent. Defendant signed a petition for a court-appointed attorney based on indigence,
which stated that he agreed that he might be ordered to repay the court for his attorney
fees. The trial court granted the petition and appointed counsel. Defendant pleaded
guilty of OUIL 3d, DWSL, and habitual offender, second offense. The judgment of
sentence required defendant to repay the cost of his court-appointed attorney “in an
amount to be determined.” Defendant did not object to the judgment of sentence.
Later, the trial court entered an amended judgment of sentence, which established
the specific amount ($1,155.08) of attorney fees. Defendant moved to delete the
attorney-fee requirement from the amended judgment of sentence, arguing that the order
to repay violated his equal protection and due process rights. The court denied the
motion because defendant had agreed in his petition for a court-appointed attorney that he
might be required to repay his attorney fees, and the original judgment of sentence stated
that defendant must repay his court-appointed attorney fees in an amount to be
determined later. Defendant sought reconsideration of the order, citing People v Dunbar,
264 Mich App 240 (2004). The trial court denied the motion for reconsideration,
specifically stating that it had considered defendant’s financial status when he applied for
counsel and that the amount required as repayment was reasonable.
The Court of Appeals denied defendant’s application for leave to appeal for lack
of merit.
II. Standard of Review
Because defendant did not timely object to the trial court’s reimbursement order,
this Court reviews this unpreserved issue for plain error affecting substantial rights.
People v Carines, 460 Mich 750, 774 (1999); Dunbar, supra at 251.
3
III. Analysis
In Dunbar, supra at 252, the issue was whether a sentencing court may
constitutionally require a defendant to contribute to the cost of his court-appointed
attorney without first assessing his ability to pay. The Dunbar panel adopted the test
from Alexander v Johnson, 742 F2d 117, 124 (CA 4, 1984), to determine whether a
sentencing court’s procedure passes constitutional muster. In Alexander, the Fourth
Circuit Court of Appeals discussed James v Strange, 407 US 128 (1972), Fuller v
Oregon, 417 US 40 (1974), and Bearden v Georgia, 461 US 660 (1983),1 which all
involved challenges to the constitutionality of statutory attorney-fee recoupment schemes.
The Fourth Circuit held that the following constitutional principles emerged from those
cases:
From the Supreme Court’s pronouncements in James, Fuller, and Bearden,
five basic features of a constitutionally acceptable attorney’s fees
reimbursement program emerge. First, the program under all
circumstances must guarantee the indigent defendant’s fundamental right to
counsel without cumbersome procedural obstacles designed to determine
whether he is entitled to court-appointed representation. Second, the state’s
decision to impose the burden of repayment must not be made without
providing him notice of the contemplated action and a meaningful
opportunity to be heard. Third, the entity deciding whether to require
repayment must take cognizance of the individual’s resources, the other
demands on his own and family’s finances, and the hardships he or his
family will endure if repayment is required. The purpose of this inquiry is
to assure repayment is not required as long as he remains indigent. Fourth,
the defendant accepting court-appointed counsel cannot be exposed to more
severe collection practices than the ordinary civil debtor. Fifth, the indigent
defendant ordered to repay his attorney’s fees as a condition of work-
release, parole, or probation cannot be imprisoned for failing to extinguish
his debt as long as his default is attributable to his poverty, not his
contumacy. [Alexander, supra at 124 (emphasis added).]
After the Dunbar panel quoted these factors, it held that a sentencing court may order
reimbursement of a court-appointed attorney’s fees without specific findings on the
record regarding the defendant’s ability to pay, unless the defendant objects to the
reimbursement amount at the time it is ordered. Dunbar, supra at 254. The panel held,
however, that even if the defendant does not object, “the court does need to provide some
indication of consideration, such as noting that it reviewed the financial and employment
1
See my statement in People v Carter, 480 Mich 1063, 1068-1070 (2008), for a
summary of the holdings in James, Fuller, and Bearden.
4
sections of the defendant’s presentence investigation report or, even more generally, a
statement that it considered the defendant’s ability to pay.” Id. at 254-255.2
This case involves the second and third factors of the Dunbar test. First, the trial
court satisfied the second Dunbar factor. Defendant knew a repayment obligation might
be imposed, but failed to object, despite having an opportunity to do so. When the court
appointed counsel, defendant signed a form that stated: “REPAYMENT I understand
that I may be ordered to repay the court for all or part of my attorney and defense costs.”
In Dunbar, supra at 254, 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.
Dunbar held that this petition and order sufficiently notified the defendant of the court’s
decision to order the repayment of attorney fees. Id. The petition and order here is
virtually identical to the one at issue in Dunbar. It plainly notified defendant about his
responsibility to repay the attorney fees.
Defendant also had an opportunity to object. Dunbar 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. “In regard to defendant’s opportunity to
be heard, defendant was not prevented from objecting at sentencing and asserting his
indigency.” Id. Similarly in this case, defendant, who had prior notice of the fees
through the petition and order appointing counsel, had an opportunity to object at
sentencing. The sentencing court ordered that defendant “be required to pay attorney fees
in an amount to be determined.” The judgment of sentence also stated, “HE SHALL
PAY ATTORNEY FEES IN AN AMOUNT TO BE DETERMINED.” Although
defendant did not know at sentencing the exact amount of attorney fees he would be
required to repay, he could have objected to the general repayment order at sentencing by
asserting an inability to repay any fees because of his indigence. Thus, defendant had
notice of the obligation and a meaningful opportunity to object to the fees.
In regard to the third Dunbar factor, I think that Dunbar misinterpreted Supreme
Court precedent when it followed Alexander. As I explained in my dissent in People v
Carter, 480 Mich 1063, 1068-1071 (2008), nothing in James, Fuller, or Bearden requires
a sentencing court to state on the record that it considered the defendant’s ability to pay
when the defendant has not timely objected on indigency grounds to the reimbursement
order. In my view, the court must consider the defendant’s ability to pay when it decides
to enforce collection or sanction the defendant for nonpayment.
Supreme Court precedents compel a sentencing court to inquire into
a defendant’s financial status and make findings on the record when the
court decides to enforce collection or sanction the defendant for failure to
2
The Court of Appeals then held that in deciding the amount that should be reimbursed,
the court should consider the defendant’s foreseeable ability to pay. Id. at 255.
5
pay the ordered amount. . . . The Alaska Supreme Court correctly
explained that “James and Fuller do not require a prior determination of
ability to pay in a recoupment system which treats recoupment judgment
debtors like other civil judgment debtors . . . .” State v Albert, 899 P2d 103,
109 (Alas, 1995). See also the Washington Supreme Court’s interpretation
of James, Fuller, and Bearden:
“[C]ommon sense dictates that a determination of ability to pay and
an inquiry into defendant’s finances is not required before a recoupment
order may be entered against an indigent defendant as it is nearly
impossible to predict ability to pay over a period of 10 years or longer.
However, we hold that before enforced collection or any sanction is
imposed for nonpayment, there must be an inquiry into ability to pay.
[State v Blank, 131 Wash 2d 230, 242; 930 P2d 1213 (1997).]”
Nothing in James, Fuller,[ or] Bearden . . . states that a sentencing
court must state on the record that it considered the defendant’s ability to
pay when the defendant does not timely object on indigency grounds to the
order requiring him to pay attorney fees. I would overrule Dunbar’s
contrary holding. [Carter, supra at 1070-1071 (Corrigan, J., dissenting)
(emphasis added to Blank).]
Applying this conclusion to the facts of this case, I would hold that the court
satisfied its constitutional duties. It had no responsibility under the federal constitution to
state on the record that it had inquired into defendant’s indigency before imposing
attorney fees. Further, the recoupment order does not state when payment must
commence. The court has not enforced collection by sanctioning defendant for
nonpayment. Therefore, defendant’s challenge to the reimbursement order is premature.
See Dunbar, supra at 256 (“in most cases, challenges to the reimbursement order will be
premature if the defendant has not been required to commence repayment”); see also
Blank, supra at 242.
Finally, even if the trial court erred in not stating at the time it ordered the
recoupment that it had considered defendant’s ability to pay, such error did not affect
defendant’s substantial rights. In denying defendant’s motion for reconsideration, the
trial court clarified that it had considered defendant’s ability to pay: “The Court properly
considered Defendant’s financial status at the time he applied for appointment of counsel
and the amount required in repayment is reasonable given the information.” Because
Dunbar requires the court only to state that it considered the defendant’s ability to pay,
Dunbar, supra at 254-255, the trial court’s statement would have satisfied Dunbar if it
had been made when the court ordered the reimbursement. Thus, the majority’s remand
to the trial court to consider defendant’s ability to pay will most likely amount to an
exercise in futility.
6
I concur that the trial court erred in ordering reimbursement in the judgment of
sentence. When a court decides to order a defendant to repay the cost of his court-
appointed attorney, it must do so in a separate order, and not the judgment of sentence.
Id. at 256; People v Arnone, 478 Mich 908 (2007). Therefore, I join the majority insofar
as it remands to the trial court to order reimbursement by a separate order.
WEAVER, J., joins the statement of CORRIGAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 23, 2008 _________________________________________
s0520 Clerk