                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  July 28, 2015
                Plaintiff-Appellee,

v                                                                 No. 322648
                                                                  Ingham Circuit Court
DARNEL WALKER,                                                    LC No. 13-000420-FH

                Defendant-Appellant.


Before: Before: SAWYER, P.J., and DONOFRIO and BORRELLO, JJ.

PER CURIAM.

        Defendant pleaded guilty to one count of possession with intent to deliver less than 50
grams of a controlled substance, MCL 333.7401(2)(a)(iv). Pursuant to a Killebrew1 agreement,
the trial court sentenced defendant to 18 to 360 months’ imprisonment. He was ordered to pay
$68 in state costs, a crime victim’s assessment fee of $130, and court costs in the amount of
$635. Defendant now appeals by delayed leave granted.2 The sole issue on appeal is the validity
of the imposition of $635 in court costs. Because this issue has previously been decided by this
Court in People v Konopka, ___ Mich App ___; ___ NW2d ___ (Docket No. 319913, issued
March 3, 2015), we affirm.

        Defendant argues that MCL 769.1k, as interpreted by People v Cunningham, 496 Mich
145; 852 NW2d 118 (2014), did not provide the trial court with statutory authority to impose
court costs against him when he was sentenced on January 15, 2014. Further, he argues, the
Legislature’s post-Cunningham amendment of §1k, 2014 PA 352, cannot be given retroactive
effect because to do so would violate the state and federal Ex Post Facto Clauses.

       As previously indicated, resolution of this appeal is controlled by this Court’s recent
decision in People v Konopka, wherein this Court stated:




1
    People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982).
2
 People v Walker, unpublished order of the Court of Appeals, entered August 29, 2014 (Docket
No. 322648).


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               If the Legislature had not amended MCL 769.1k, the cost award in this
       case would have been invalid under Cunningham. Under Cunningham, 496 Mich
       at 147, the former version of MCL 769.1k(1)(b)(ii) provided courts with the
       authority to impose only those costs that were separately authorized by statute.
       Defendant was convicted of first-degree retail fraud, MCL 750.356c, and
       conspiracy to commit first-degree retail fraud, MCL 750.157a. The statutes for
       those offenses do not authorize the imposition of court costs. See MCL
       750.356c(1) (authorizing imprisonment and a fine); MCL 750.157a (authorizing
       imprisonment and a fine). Nor did any other statute separately authorize the
       imposition of the costs imposed. Therefore, the imposition of court costs is not
       separately authorized by statute, as required by Cunningham.

               However, the trial court’s cost award is authorized by the amended version
       of MCL 769.1k(1)(b)(iii). This amended version became effective on October 17,
       2014, and applies to all fines, costs, and assessments under MCL 769.1k before
       June 18, 2014, and after the effective date of the amendatory act. 2014 PA 352.
       The amended act was a curative measure to address the authority of courts to
       impose costs under MCL 769.1k before the issuance of Cunningham. 2014 PA
       352. “‘When a new law makes clear that it is retroactive, an appellate court must
       apply that law in reviewing judgments still on appeal that were rendered before
       the law was enacted, and must alter the outcome accordingly.’” Mayor of Detroit
       v Arms Technology, Inc, 258 Mich App 48, 65; 669 NW2d 845 (2003), quoting
       Plaut v Spendthrift Farm, Inc, 514 US 211, 227; 115 S Ct 1447; 131 L Ed 2d 328
       (1995) (addressing Congress’s authority to revise the judgments of federal
       courts). This case was still on appeal when the amended version of MCL 769.1k
       was adopted; further, the costs in this case were imposed on July 17, 2013.
       Therefore the amended act applies to this case. [Konopka, ___ Mich App at ___;
       slip op at 6.]

       Here the trial court sentenced defendant on January 15, 2014. Because the amended
version of MCL 769.1k applied to all costs assessed under MCL 769.1k before June 18, 2014,
the imposition of court costs was authorized and valid.

         Konopka also held that the costs imposed under MCL 769.1k(b)(iii) are not a form of
punishment. Id. at ___; slip op at 13. Further, this Court concluded that the costs provision 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 16. Therefore, the Ex Post Facto Clauses of the Michigan and United States
Constitutions are not violated. Id.

       Affirmed.



                                                           /s/ David H. Sawyer
                                                           /s/ Pat M. Donofrio
                                                           /s/ Stephen L. Borrello


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