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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v HARVEY EUGENE JACKSON, Defendant-Appellant.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED JULY 10, 2009

No. 135888

BEFORE THE ENTIRE BENCH CAVANAGH, J. This case presents us with several questions regarding the process by which Michigan trial courts impose attorney fees on convicted criminal defendants who have used court-appointed attorneys. Specifically, we first asked whether People v Dunbar, 264 Mich App 240; 690 NW2d 476 (2004), correctly decided that, before imposing a fee for a court-appointed attorney, a trial court must make a presentence articulation of its conclusion that the defendant has a foreseeable ability to pay the fee. We conclude that Dunbar was incorrect to the extent that it required a court to conduct an ability-to-pay analysis before imposing a fee for a court-appointed attorney, and we hold that such an analysis is only required once the imposition of the fee is enforced. Further, we hold that once an ability-to-pay

assessment is triggered, the court must consider whether the defendant remains indigent and whether repayment would cause manifest hardship. Finally, we conclude that remittance orders of prisoner funds, under MCL 769.1l, generally obviate the need for an ability-to-pay assessment with relation to defendants sentenced to a term of imprisonment because the statute is structured to only take monies from prisoners who are presumed to be nonindigent. I. FACTS AND PROCEDURE Before May 4, 2006, defendant, Harvey E. Jackson, did odd jobs around the home of an acquaintance, Cosma Agrusa. On that day, however, defendant broke into Agrusa's home and assaulted her. He then gathered various pieces of

Agrusa's property, pulled the telephone line from the wall, and left the home. Eventually, defendant was charged with several crimes for these actions. As a result of his indigency, defendant was given court-appointed counsel, who negotiated a plea with the prosecutor. Hence, defendant pleaded nolo contendere to first-degree home invasion,1 assault with intent to rob while unarmed,2 and tampering with telephone lines.3 On December 14, 2006, defendant was sentenced to an eight-year minimum prison term, which was in accordance with the plea agreement. In addition, the trial court imposed various costs and fines, including
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MCL 750.110a(2). MCL 750.88. MCL 750.540.

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$725 for "Initial Defense Costs," i.e., his court-appointed attorney's fee. The trial court did not articulate whether it evaluated defendant's foreseeable ability to pay the attorney fee. Defendant then began serving his prison term. On January 17, 2007, the trial court issued an order to remit prisoner funds for fines, costs, and assessments. This order allowed the Department of

Corrections to begin taking money from defendant's prisoner account to satisfy the various fees and costs imposed by the trial court. Defendant requested appellate counsel, and the State Appellate Defender Office (SADO) was appointed.4 On defendant's behalf, SADO moved the trial court to correct defendant's sentence, arguing (among other things) that the trial court incorrectly imposed the attorney fee without considering defendant's ability to pay it. The trial court denied the motion, and SADO filed a delayed application for leave to appeal in the Court of Appeals. The Court of Appeals denied leave to appeal for lack of merit. SADO requested leave to appeal in this Court, and we granted leave. People v Jackson, 483 Mich 884 (2009).

As a condition to receiving both trial and appellate counsel, defendant was required to sign forms provided by the county that acknowledged defendant's obligation to reimburse the county for the cost of his court-appointed attorneys and the associated court costs. These forms also noted that if defendant was unable to pay these costs in full, he would be required to enter a reimbursement plan in accordance with his ability to pay. The forms also noted that the 20 percent late fee under MCL 600.4801 and MCL 600.4803 may be imposed for fees that were not paid within 56 days of their due date. However, the trial court never imposed any fees associated with defendant's appellate counsel, and it never imposed the statutory late fee.

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II. STANDARD OF REVIEW Defendant challenges the constitutionality of the procedure used to impose and enforce a fee for his court-appointed attorney. This presents a question of constitutional law, which is reviewed de novo. Sidun v Wayne Co Treasurer, 481 Mich 503, 508; 751 NW2d 453 (2008).5 III. ANALYSIS In this case, defendant relies on People v Dunbar to contend that his constitutional rights were violated when the trial court imposed a fee on him for his court-appointed attorney without expressly contemplating his foreseeable ability to pay the fee. To evaluate this claim we must assess (a) the United States Supreme Court's opinions on other states' attempts to recoup fees for courtappointed attorneys; (b) Dunbar's interpretation of those opinions; (c) Michigan's recoupment procedure for fees for court-appointed attorneys; (d) the validity of Dunbar's presentence ability-to-pay rule, and (e) the constitutionality of Michigan's recoupment procedure for attorney fees.

The parties contest whether the defendant's claim of error was preserved, which would affect the standard of review relating to defendant's entitlement to relief. However, we decline to decide that issue because our conclusion that the trial court did not err obviates the need to address the preservation issue.

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A. THE UNITED STATES SUPREME COURT'S OPINIONS ON RECOUPMENT PROCEDURES FOR FEES FOR COURT-APPOINTED ATTORNEYS In 1963 the United States Supreme Court delivered its seminal decision in Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), which held that the Sixth Amendment of the United States Constitution requires that all criminal defendants be afforded legal counsel during trial. This constitutional requirement applies to the states, and it requires them to provide legal counsel to indigent criminal defendants who request an attorney. Id. at 342-345. Since Gideon, numerous states have instituted various procedures in an effort to recoup the costs of providing indigent defendants with legal counsel. Some defendants have challenged the propriety of specific recoupment procedures, which has given the United States Supreme Court occasion to evaluate the constitutionality of those procedures. First, in James v Strange, 407 US 128; 92 S Ct 2027; 32 L Ed 2d 600 (1972), the Court held that a Kansas statute requiring payment of fees for courtappointed attorneys was unconstitutional because it did not give defendants who owed the state a debt the same debtor exemptions that civil debtors received under the state's laws. Specifically, a defendant who owed the state of Kansas for his court-appointed attorney could only exempt his homestead from collection, whereas the normal civil debtor had a host of other exemptions. Id. at 130-131. James held that the difference in the laws' application to indigent defendants and other civil debtors violated equal protection principles. Id. at 140-142. 5

Second, in Fuller v Oregon, 417 US 40; 94 S Ct 2116; 40 L Ed 2d 642 (1974), the Court reviewed a recoupment statute that gave the trial court the discretion to impose a fee for a court-appointed attorney only when the defendant was convicted and, at the time of sentencing, adjudged to have a foreseeable ability to pay the fee. Id. at 44-45. The recoupment statute also allowed the defendant the opportunity to request a remission of the earlier-imposed fee when payment would impose a manifest hardship. Id. at 45-46. The statute also

proscribed punishing the defendant for lack of payment, unless he was able to pay but simply refused. Id. The Court took special notice that the statute was "quite clearly directed only at those convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently gain the ability to pay the expenses of legal representation." Id. at 46. Further, "those [defendants] upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigency has ended and no `manifest hardship' will result." Id. The Fuller Court did not accept the defendant's claim that the statute violated equal protection requirements because the statute was objectively rational and was not based on invidious discrimination. Id. at 46-50. The Court also rejected the defendant's claim that the statute infringed his constitutional right to counsel, noting that "[t]he fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel." Id. at 53. 6

Accordingly, Fuller affirmed the constitutionality of Oregon's recoupment statute. Id. at 54. Finally, in Bearden v Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d 221 (1983), the Court considered a trial court's decision to revoke a defendant's probation, and remand him to prison, for his inability to pay a fine, which was imposed as part of his probation sentence. Id. at 662. Relying on notions of due process and fundamental fairness, the Court held that in order to punish a defendant for "failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay." Id. at 672. "If the [defendant] willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation . . . ." Id. But simply punishing a defendant for his lack of payment, without analyzing his fault in the lack of payment, "would deprive [him] of his . . . freedom simply because, through no fault of his own, he cannot pay the fine." Id. at 672-673. "Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment." Id. at 673. B. PEOPLE v DUNBAR'S INTERPRETATION OF JAMES, FULLER, AND BEARDEN In Dunbar, our Court of Appeals was faced with a criminal defendant's argument that a trial court could not impose a fee for a court-appointed attorney without indicating that it had assessed his present and future capacity to pay the fee. Dunbar, 264 Mich App at 251. At the time, Michigan had no legislation

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regarding a trial court's imposition of a fee for a court-appointed attorney. Therefore, the Dunbar Court looked to James, Fuller, and Bearden for direction. Specifically, Dunbar noted that these three United States Supreme Court cases were discussed by the court in Alexander v Johnson, 742 F2d 117 (CA 4, 1984). Dunbar found Alexander's discussion of the cases to be persuasive. In fact, Dunbar expressly adopted the following portion from the Alexander decision: "Although there is no single model to which all state repayment programs must conform, the Supreme Court has carefully identified the basic features separating a constitutionally acceptable recoupment or restitution program from one that is fatally defective. See Fuller v Oregon, 417 US [40, 47-54; 94 S Ct 2116; 40 L Ed 2d 642 (1974)]; James v Strange, 407 US [128, 135-139; 92 S Ct 2027; 32 L Ed 2d 600 (1972)]. See also Bearden v Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d 221 (1983). In James, the first of the three decisions bearing on this question, the Supreme Court emphasized that the indigent accepting court-appointed counsel could not be subjected to more severe collection practices than other civil debtors without running afoul of the equal protection clause. In Fuller, decided two years later, the Court offered important clarifications of the developing law in this area by upholding an Oregon reimbursement plan that required an indigent to repay courtappointed counsel fees as a condition of probation. The Oregon approach, the Court explained, contained none of the invidious collection practices condemned in James, provided an array of procedural and substantive safeguards designed to preserve the indigent's basic right to counsel, and authorized reimbursement from the defendant only when he could afford to pay without substantial hardship. Finally, in Bearden, decided nearly a decade later, the Court added a new gloss to the general jurisprudence in this area by ruling that an inmate violating any monetary requirement of his probation or restitution regimen cannot be imprisoned if his noncompliance results from poverty alone. "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 8

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 courtappointed 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." [Dunbar, 264 Mich at 252-254, quoting Alexander, 742 F2d at 124.] Relying on this analysis, Dunbar held that, before a trial court may impose a fee on a defendant for his court-appointed attorney, it must consider the defendant's ability to pay the fee. Dunbar, 264 Mich App at 254-255. Dunbar also held that the ability-to-pay inquiry does not require the trial court to make "a specific finding on the record regarding [the defendant's] ability to pay," "unless the defendant specifically objects to the reimbursement amount at the time it is ordered . . . ." Id. at 254. "However, [in any context,] 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, citing People v Grant, 455 Mich 221, 242, 243 n 30; 565 NW2d 389 (1997). And "[t]he amount ordered to be reimbursed for

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court-appointed attorney fees should bear a relation to the defendant's foreseeable ability to pay." Id. at 255. Finally, "[a] defendant's apparent inability to pay at the time of sentencing is not necessarily indicative of the propriety of requiring reimbursement because a defendant's capacity for future earnings may also be considered." Id., citing Grant, 455 Mich at 242 n 27. In essence, Dunbar adopted the five elements articulated in Alexander, and it required that they all be met before a trial court could impose a fee for a courtappointed attorney as part of a defendant's sentence. Dunbar then went further and expanded the third Alexander element by requiring trial courts to make a presentence articulation regarding a defendant's foreseeable ability to pay the fee. We generally refer to this holding as Dunbar's "ability-to-pay rule." C. MICHIGAN'S RECOUPMENT PROCEDURE FOR FEES FOR COURT-APPOINTED ATTORNEYS Soon after Dunbar, our Legislature promulgated MCL 769.1k and MCL 769.1l. These statutes give Michigan trial courts the power to both impose a fee for a court-appointed attorney as part of a defendant's sentence and to enforce that imposition against an imprisoned defendant. MCL 769.1k allows imposition of such fee. It states, in pertinent part: (1) If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred pursuant to statute or sentencing is delayed pursuant to statute: *** (b) The court may impose any or all of the following: *** 10

(iii) The expenses of providing legal assistance to the defendant. Notably, this power to impose the fee is not limited by reference to a defendant's ability to pay. MCL 769.1l allows trial courts to recoup the costs imposed under

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