Order Michigan Supreme Court
Lansing, Michigan
February 8, 2008 Clifford W. Taylor,
Chief Justice
134687 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 134687
COA: 270195
Wayne CC: 05-011783-01
STEVEN MICHAEL CARTER,
Defendant-Appellee.
_________________________________________/
On January 9, 2008, the Court heard oral argument on the application for leave to
appeal the July 3, 2007 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 (1987); see also
People v Grant, 455 Mich 221 (1997); People v Hill, 430 Mich 898 (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 (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.
2
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, 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.” 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. 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. [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 (2007). The order directed the parties to submit supplemental briefs “addressing
whether the constitutional underpinnings of People v Dunbar, 264 Mich App 240
(2004), are sound.” Id.
II. Standard of Review
3
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 (1999); Dunbar, supra at 251.
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.
1
MCL 771.3 provides, in pertinent part:
(2) As a condition of probation, the court may require the probationer to do
1 or more of the following:
***
(c) Pay costs pursuant to subsection (5).
***
(5) If the court requires the probationer to pay costs under subsection (2),
the costs shall be limited to expenses specifically incurred in prosecuting
the defendant or providing legal assistance to the defendant and
supervision of the probationer. [Emphasis added.]
4
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. 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. 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. 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 means. [Music, supra at 361-362.]
Subsequently, in People v Hill, 430 Mich 898 (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.
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, 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
2
At the time this Court decided Music, what is now MCL 771.3(6)(a) was MCL
771.3(5)(a). The pertinent statutory language at the time Music was decided was almost
identical to the present language.
3
The petition and order also stated, “THE DEFENDANT SHALL CONTRIBUTE
AND/OR REIMBURSE THE COURT AT A RATE OF _____.” The order necessarily
left blank the amount defendant would be required to pay; the appointed attorney’s fee
was not yet known because trial had not yet commenced.
5
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. “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 record that it considered
defendant’s financial resources. The sentencing court was required to consider
defendant’s financial resources only if he timely asserted an inability to pay. Because
defendant had notice of the fees but did not timely object and assert an inability to pay,
MCL 771.3(6)(a) did not require the sentencing court, before ordering defendant to pay
the cost of his court-appointed attorney , to make a finding on the record that he was able
to make such a payment. Music, supra at 357, 359-362.4
B. Constitutional Requirements
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.5 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
4
Defendant is free to petition the court at any time for remission of the payment of
attorney fees or any unpaid portion, if he contends that he is unable to pay. MCL
771.3(6)(b).
5
In Dunbar, MCL 771.3 did not apply because the defendant was not sentenced to
probation. At the time Dunbar was decided, no statutory procedure existed governing the
imposition on criminal defendants the costs of court-appointed attorneys. Dunbar, supra
at 254, 256 n 15.
6
Oregon, 417 US 40 (1974), and Bearden v Georgia, 461 US 600 (1983), 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 cited this test, 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. Id. 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
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 254-255.6
In my opinion, Dunbar misinterpreted Supreme Court precedent when it followed
the Fourth Circuit. 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
did not timely object on indigency grounds to the reimbursement order.
6
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.
7
James involved a constitutional challenge to a Kansas recoupment statute. Under
this statute, when the state provided counsel, the indigent defendant became obligated to
repay the amount expended on his behalf. Id. at 129-130. If the sum remained unpaid
after a designated time, a judgment would be entered against the defendant for the
unpaid amount. Id. at 130. The indigent defendant was not accorded any of the
exemptions that a code of civil procedure accorded to other judgment debtors. Id. The
Supreme Court held that this provision violated equal protection because it “strips from
indigent defendants the array of protective exemptions Kansas has erected for other civil
judgment debtors . . . .” Id. at 135.
In Fuller, the Supreme Court examined the constitutionality of Oregon’s
recoupment statute. The statute provided that in some cases, defendants may be
required to pay the costs of court-appointed counsel, and that the payment of such
expenses could be made a condition of probation. Id. at 43. It further provided that a
defendant could not be required to pay attorney fees if he was financially unable to pay.7
Fuller, supra at 45. Further, a defendant ordered to pay his attorney fees could petition
the court for remission of the payment of costs,8 and a defendant could not be held in
contempt for failure to repay if he made a good-faith effort to make the payment.9 Id. at
45-46. The Supreme Court summarized: “a lawyer is provided at the expense of the
State to all defendants who are unable, even momentarily, to hire one, and the obligation
to repay the State accrues only to those who later acquire the means to do so without
hardship.” Id. at 46. The Court held that Oregon’s recoupment statute did not infringe
on a defendant’s constitutional right to have counsel provided by the State when he is
unable because of indigency to hire a lawyer. Id. at 51. The Court rejected the
defendant’s argument that “a defendant’s knowledge that he may remain under an
obligation to repay the expenses incurred in providing him legal representation might
impel him to decline the services of an appointed attorney and thus ‘chill’ his
constitutional right to counsel.” Id. The Court explained that Oregon’s statute in no
way deprived any defendant of legal assistance when he needed it. Id. at 52-53. The
Court emphasized the following points:
The Oregon statute is carefully designed to insure that only those
who actually become capable of repaying the State will ever be obliged to
do so. Those who remain indigent or for whom repayment would work
“manifest hardship” are forever exempt from any obligation to repay.
***
7
This provision is similar to MCL 771.3(6)(a).
8
This provision is similar to MCL 771.3(6)(b).
9
This provision is similar to MCL 771.3(8).
8
Oregon’s recoupment statute merely provides that a convicted
person who later becomes able to pay for his counsel may be required to do
so. Oregon’s legislation is tailored to impose an obligation only upon those
with a foreseeable ability to meet it, and to enforce that obligation only
against those who actually become able to meet it without hardship. [Id. at
53-54.]
In Bearden, the Supreme Court addressed whether the Fourteenth Amendment
prohibits a state from revoking an indigent defendant’s probation for failure to pay a fine
and restitution. In that case, the trial court revoked the defendant’s probation and
imprisoned him for failing to pay his fine and restitution without considering his
financial ability to pay. Id. at 663. The Supreme Court held as follows:
We hold, therefore, that in revocation proceedings for failure to pay
a fine or restitution, a sentencing court must inquire into the reasons for the
failure to pay. If the probationer willfully refused to pay or failed to make
sufficient bona fide efforts legally to acquire the resources to pay, the court
may revoke probation and sentence the defendant to imprisonment within
the authorized range of its sentencing authority. If the probationer could
not pay despite sufficient bona fide efforts to acquire the resources to do so,
the court must consider alternative measures of punishment other than
imprisonment. Only if alternative measures are not adequate to meet the
State’s interests in punishment and deterrence may the court imprison a
probationer who has made sufficient bona fide efforts to pay. To do
otherwise would deprive the probationer of his conditional freedom simply
because, through no fault of his own, he cannot pay the fine. Such a
deprivation would be contrary to the fundamental fairness required by the
Fourteenth Amendment. [Id. at 672-673 (emphasis added).]
Applying this holding to the facts of the case, the Bearden Court concluded that because
the trial court had not made any finding that the defendant had not made a bona fide
effort to pay the fine and restitution, the case must be remanded for resolution of this
issue. Id. at 673-674.
In regard to the relevant issue here, 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 pay the ordered amount. Our holding in Music, supra at 361-362, fully comports
with those authorities. 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:
9
[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 (1997).]
Nothing in James, Fuller, Bearden, or Music 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.10
Applying this conclusion to the facts of this case, I would hold that the court
satisfied its duties. It had no responsibility under the federal constitution or our state
statute to make a preemptive inquiry into defendant’s indigency before imposing
attorney fees.
Further, the probation order does not state when payment must commence. The
court has not enforced collection by revoking defendant’s probation or imposing any
other sanction. 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”). Therefore, I would reverse the Court of Appeals judgment and remand
10
Dunbar cites People v Grant, 455 Mich 221, 242, 243 n 30 (1997), for the proposition
that the sentencing court must provide some indication that it considered the defendant’s
ability to pay before ordering payment of attorney fees. But Grant does not support this
conclusion. The issue in Grant was “whether the trial court’s failure to make express
findings with respect to the statutory factors regarding restitution set forth in . . . MCL
780.767(1), (4) [the Crime Victim’s Rights Act] . . . was error that invalidates that portion
of the judgment directing restitution.” Grant, supra at 223. In Grant, supra at 224 n 4,
this Court explained that under Music, supra, a trial court ordering restitution under the
Crime Victim’s Rights Act, like under MCL 771.3, need not make an express
determination on the record regarding the defendant’s ability to pay, absent a timely
objection at the time restitution is imposed. Although the Crime Victim’s Rights Act
required the trial court “to consider” the defendant’s ability to pay, “the statute does not
require the trial judge to make a separate factual inquiry and individual findings on the
record.” Id. at 243. Nothing in Grant states that the trial court was constitutionally
required “to provide some indication of consideration” of the defendant’s ability to pay
on the record.
10
this case to the sentencing court to allow defendant to move to remit the payment of
attorney fees if he contends that he is unable to pay. MCL 771.3(6)(b).
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.
February 8, 2008 _________________________________________
s0205 Clerk