                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 26, 2016
               Plaintiff-Appellee,

v                                                                    No. 327288
                                                                     Livingston Circuit Court
RYAN DAVID DEVELLIS,                                                 LC No. 13-021684-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and SERVITTO and GLEICHER, JJ.

PER CURIAM.

        Defendant pleaded guilty to delivery of a controlled substance causing death, MCL
750.317a. He was sentenced to 3 to 20 years’ imprisonment and ordered to pay costs and fees
totaling $1,398, including $1,200 in attorney fees, within 56 days of the order or be charged a
20-percent late fee under MCL 600.4803(1). We granted defendant’s delayed application for
leave to appeal.1 Defendant raises challenges to the assessment of attorney fees and the late fee,
and argues that counsel rendered ineffective assistance for failing to raise those challenges in the
trial court. We affirm.

       Defendant purchased heroin from a dealer in Ingham County and returned to Livingston
County, where he met with Dorothy Brock. Defendant and Brock used the drugs throughout the
evening in a hotel room in celebration of Brock’s birthday. Brock died that night of an overdose.
In exchange for agreeing to testify against his dealer, defendant was offered a favorable plea
agreement and was sentenced to three years’ imprisonment in accordance with that agreement.

        In addition to ordering that defendant pay $1,200 in attorney fees for appointed trial
counsel and a late fee of 20 percent if not paid within 56 days of the date of sentencing (July 17,
2014), the trial court ordered that the Department of Corrections (DOC) collect 50 percent of all
funds received by defendant over $50.00 each month and remit those funds to the 44th Circuit
Court. The Register of Actions indicates that on September 19, 2014, an automatic 20-percent
late fee was charged in the amount of $279.60.


1
 People v Devellis, unpublished order of the Court of Appeals, entered June 17, 2015 (Docket
No. 327288).


                                                -1-
        Defendant first argues that his attorney fees should be vacated because when he was
sentenced, People v Cunningham, 496 Mich 145; 852 NW2d 118 (2014), and MCL 769.1k did
not provide for the assessment of costs. Defendant did not challenge the fees and costs at
sentencing, and this issue is unpreserved. People v Jackson, 483 Mich 271, 292 n 18; 769 NW2d
630 (2009). This Court reviews unpreserved issues for plain error affecting the defendant’s
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An error is
plain if it is clear or obvious. Id. It affects the defendant’s substantial rights if it affects the
outcome of the case. Id.

        When Cunningham was decided, MCL 769.1k(1)(b)(iii) provided that a defendant could
be assessed “expenses of providing legal assistance to the defendant.” See Cunningham, 496
Mich at 151-152, citing 2005 PA 316, as amended by 2006 PA 655. In considering the
imposition of court costs under MCL 769.1k(1)(b)(ii), which provided for the assessment of “any
costs,” Cunningham reasoned that “courts may impose costs in criminal cases only where such
costs are authorized by statute.” 496 Mich at 149. The underlying criminal statute at issue in
Cunningham, MCL 333.7407 (obtaining a controlled substance by fraud), failed to provide the
sentencing court with authority to impose $1,000 in general “court costs,” and Cunningham held
that MCL 769.1k(1)(b)(ii) did not provide the court with independent authority to impose such
costs. Id. at 153-154. Accordingly, Cunningham concluded that it was error to impose the court
costs.

        Following Cunningham, the Legislature amended MCL 769.1k, which continued to
provide for the assessment of legal fees against a defendant. See 2014 PA 352; MCL
769.1k(1)(b)(iv). Defendant notes that an enacting clause of 2014 PA 352 states that “[t]his
amendatory act applies to all fines, costs, and assessments ordered or assessed under section 1k
of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.1k, before June 18,
2014, and after the effective date of this amendatory act[, October 17, 2014].” See People v
Konopka, 309 Mich App 345, 354-355; 869 NW2d 651 (2015), citing 2014 PA 352. Defendant
notes that the underlying criminal statute in this case did not provide the trial court with specific
authority to impose attorney fees, and that he was sentenced in July 2014, which was between
June 18, 2014, and October 17, 2014. See id. at 354-359. Defendant argues that under
Cunningham, the trial court lacked the authority to impose attorney fees under the prior version
of MCL 769.1k.

        However, Cunningham’s holding addressed the prior version of MCL 769.1k(1)(b)(ii)’s
reference to “any cost,” not MCL 769.1k(1)(b)(iii)’s authorization for the imposition of
“expenses of providing legal assistance to the defendant.” Well before Cunningham, this Court
held that a trial court has authority to order a defendant to reimburse the county for costs paid for
his representation. People v Bohm, 393 Mich 129, 131; 223 NW2d 291 (1974); People v
Nowicki, 213 Mich App 383, 388; 539 NW2d 590 (1995). See also MCR 6.005(C) (adopted in
1989 and allowing a court to require a criminal defendant to repay all or part of the cost of his
court-appointed attorney). Because Cunningham’s holding had no effect on the Legislature’s
express authorization under MCL 769.1k(1)(b)(iii) for the trial court to charge defendant
attorney fees, defendant’s argument lacks merit. Furthermore, the imposition of attorney fees




                                                -2-
complies with the basic principle in Cunningham that “[t]he right of the court to impose costs in
a criminal case is statutory,” 496 Mich at 149 (citation and internal quotation marks omitted),
because both versions of the statute explicitly provide for the imposition of attorney fees.2

       Defendant also challenges the attorney fees and the late fee on constitutional grounds as
summarized in Jackson, 483 Mich at 292 n 18, and the United States Supreme Court cases cited
within that opinion. We review questions of constitutional law de novo,” Id. at 277, but when
unpreserved we review for plain error affecting substantial rights, Carines, 460 Mich at 763.

        In Jackson, our Supreme Court considered various questions relating to “the process by
which Michigan trial courts impose attorney fees on convicted criminal defendants who have
used court-appointed attorneys[,]” specifically the validity of MCL 769.1k and MCL 769.1l
(providing a process for the DOC to recoup fees from a prisoner’s prison account).3 483 Mich at
274, 283. Before the enactment of that legislation, People v Dunbar, 264 Mich App 240; 690
NW2d 476 (2004), held “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.” Jackson, 483 Mich at 275. In summarizing the import of the due-process and
equal-protection analysis under James v Strange, 407 US 128; 92 S Ct 2027; 32 L Ed 2d 600
(1972); Fuller v Oregon, 417 US 40; 94 S Ct 2116; 40 L Ed 2d 642 (1974); and Bearden v
Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d 221 (1983), the Jackson Court concluded “that
Dunbar was incorrect to the extent that it held that criminal defendants have a constitutional
right to an assessment of their ability to pay before the imposition of a fee for a court-appointed
attorney.” Jackson, 483 Mich at 290. Jackson reasoned that “there is a substantive difference
between the imposition of a fee and the enforcement of that fee.” Id. “Despite our deepest
wishes to the contrary, no judge is so clairvoyant, and the state should not be forever precluded
from seeking repayment from a defendant who has later gained the ability to pay, simply because



2
 Defendant only challenges the authority of the court to impose attorney fees. Defendant does
not assert that the amount of the fee does not accurately reflect the cost of his legal expenses.
3
    MCL 769.1l states:
                 If a prisoner under the jurisdiction of the department of corrections has
         been ordered to pay any sum of money as described in section 1k and the
         department of corrections receives an order from the court on a form prescribed
         by the state court administrative office, the department of corrections shall deduct
         50% of the funds received by the prisoner in a month over $50.00 and promptly
         forward a payment to the court as provided in the order when the amount exceeds
         $100.00, or the entire amount if the prisoner is paroled, is transferred to
         community programs, or is discharged on the maximum sentence. The department
         of corrections shall give an order of restitution under section 20h of the
         corrections code of 1953, 1953 PA 232, MCL 791.220h, or the crime victim’s
         rights act, 1985 PA 87, MCL 780.751 to 780.834, priority over an order received
         under this section.


                                                 -3-
at the time of sentencing it wrongly concluded that the defendant would never rise above
indigency.” Id.

        Jackson further held that due-process requirements are properly observed when fees and
costs are imposed under MCL 769.1k because “whenever a trial court attempts to enforce its
imposition of a fee for a court-appointed attorney under MCL 769.1k, the defendant must be
advised of this enforcement action and be given an opportunity to contest the enforcement on the
basis of his indigency.” 483 Mich at 292. Any claim regarding a defendant’s ability to pay the
fees or costs is premature until enforcement has begun, and at that point, a defendant must make
“a timely objection based on his claimed inability to pay,” and the trial court should, in its sound
discretion, then evaluate the defendant’s ability to pay, i.e., “whether payment at the level
ordered would cause manifest hardship.” Id. at 292-294.

        In this case, the trial court imposed attorney fees pursuant to MCL 769.1l, which Jackson
recognized as an enforcement of the fees without an ability-to-pay assessment. 483 Mich at 294-
295. Although defendant does not assert an argument regarding the constitutionality of MCL
769.1l, it is notable that Jackson found the statute constitutional because the statute “inherently
calculates a prisoner’s general ability to pay and, in effect, creates a statutory presumption of
nonindigency.” Id. at 295. Jackson reasoned that “a prisoner’s ‘living expenses’ are nil, as the
prisoner is clothed, sheltered, fed, and has all his medical needs provided by the state. The funds
left to the prisoner on a monthly basis are more than adequate to cover the prisoner’s other
minimal expenses and obligations without causing manifest hardship.” Id. Nevertheless,
because “one’s indigency is an individualized assessment,”

       if a prisoner believes that his unique individual financial circumstances rebut §
       1l’s presumption of nonindigency, he may petition the court to reduce or
       eliminate the amount that the remittance order requires him to pay. However,
       because we adjudge a prisoner’s indigency at the time of enforcement on the basis
       of manifest hardship and because a prisoner is being provided all significant life
       necessities by the state, we caution that the imprisoned defendant bears a heavy
       burden of establishing his extraordinary financial circumstances. [Id. at 296.]

        Defendant argues that the imposition of the attorney fee would cause manifest hardship.
Defendant is correct that under Jackson, the order to remit prisoner funds entered in this case
pursuant to MCL 769.1l constituted enforcement of the fee, triggering his right to an ability-to-
pay assessment. That the state has not received any funds because defendant has not made
contributions to his prisoner account is irrelevant. However, defendant has not challenged the
enforcement of the imposed fees in the trial court, rendering this Court’s review inappropriate at
this time. Jackson clearly requires that defendant seek relief in the trial court for consideration
of “any proofs of his unique and extraordinary financial circumstances” and whether and to what
extent the order should be modified to avoid manifest hardship to defendant or his immediate
family. Jackson, 483 Mich at 296-297. Defendant may avail himself of this procedure, but it
would be premature for this Court to consider further relief absent the trial court’s exercise in the




                                                -4-
first instance of its discretion in deciding “how to adjudicate a prisoner’s claim that his
individual circumstances rebut § 1l’s presumption of nonindigency.” Id. at 297.4

       Defendant also challenges the constitutionality of MCL 600.4803(1), which states:
               A person who fails to pay a penalty, fee, or costs in full within 56 days
       after that amount is due and owing is subject to a late penalty equal to 20% of the
       amount owed. The court shall inform a person subject to a penalty, fee, or costs
       that the late penalty will be applied to any amount that continues to be unpaid 56
       days after the amount is due and owing. Penalties, fees, and costs are due and
       owing at the time they are ordered unless the court directs otherwise. The court
       shall order a specific date on which the penalties, fees, and costs are due and
       owing. If the court authorizes delayed or installment payments of a penalty, fee,
       or costs, the court shall inform the person of the date on which, or time schedule
       under which, the penalty, fee, or costs, or portion of the penalty, fee, or costs, will
       be due and owing. A late penalty may be waived by the court upon the request of
       the person subject to the late penalty.[5]

        Defendant’s argument is essentially that in relation to the class of indigent defendants, the
late penalty under MCL 600.4803 is subject to the same equal-protection and due-process
principles outlined in Jackson that were applicable to the initial assessment of attorney fees.
Defendant argues that an assessment of the 20-percent late fee and the initial assessment of
attorney fees have similar constitutional implications because, while the “State clearly has an
interest in punishment and deterrence,” “punishing a person for his poverty” does not further that



4
  Moreover, on appeal, defendant has not offered any evidence in meeting his heavy burden to
show that his extraordinary financial circumstances establish that the recoupment procedures
under MCL 769.1l would result in manifest hardship. His argument sets forth the general
financial circumstances of a typical prisoner’s income and the necessity to purchase items such
as toiletries at regular store prices. Jackson specifically reasoned that any prisoner funds left
untouched by MCL 769.1l would typically be sufficient to meet a prisoner’s general life
necessities. Jackson, 483 Mich at 295.
5
  In granting leave to appeal in Jackson, the Supreme Court noted that the statute “clearly allows
imposition of this 20 percent late fee on outstanding balances of fees that the trial court imposed
on a defendant, which includes the fee for a court-appointed attorney,” but declined “to answer
this question . . . because the trial court did not impose this late fee on defendant, and there is no
indication that it ever will. Thus, at this point, the issue is not ripe.” 483 Mich at 298 (emphasis
added). The parties cite People v Fisher, unpublished opinion of the Court of Appeals, issued
April 19, 2011 (Docket No. 295322), which arrived at a similar conclusion. Contrary to the
prosecution’s argument, this case is distinguishable because the Judgment of Sentence sets forth
the due date for the costs and fees and imposes the 20-percent late fee if those costs and fees are
not paid within 56 days of the due date in accordance with MCL 769.1l. Also, the Register of
Actions strongly suggests that a 20-percent late fee in the amount of $279.60 was charged
against defendant in September 2014 and applied to his balance.


                                                 -5-
interest. Bearden, 461 US at 671-672. Assuming that these constitutional implications are
equally applicable to the 20-percent late fee, there is no indication in this case that the State has
chosen a route of enforcement other than the recoupment mechanism under MCL 769.1l.
Jackson’s analysis would be equally applicable to the recoupment of the late fee, and as
previously explained, it is incumbent upon defendant to petition the trial court in the first
instance for consideration of his financial circumstances and purported hardship. See Jackson,
483 Mich at 296-297.

        In apparent recognition of that conclusion, defendant argues on appeal that the late fee is
different than an initial assessment of attorney fees such that increased constitutional protections
should apply; specifically, he argues that defendant was entitled to an opportunity to be heard
regarding the particular circumstances of his situation before the late fee was applied. See
Mathews v Eldridge, 424 US 319, 334; 96 S Ct 893; 47 L Ed 2d 18 (1976) (stating that due
process “is flexible and calls for such procedural protections as the particular situation
demands”) (citation and internal quotation marks omitted); People v Malmquist, 155 Mich App
521, 524; 400 NW2d 317 (1986). Defendant argues that Jackson denied that level of
constitutionally mandated process with respect to the assessment of the attorney fees because, in
large part, the attorney fees were part of the original sentence. Defendant reasons that Bearden
required an ability-to-pay assessment “before the defendant was imprisoned for defaulting on a
probation condition to pay costs,” and Jackson distinguished the assessment of attorney fees on
the basis that the defendant had “never had his sentence changed, increased, or amended because
of his inability to pay a fee for his court-appointed attorney.” Jackson, 483 Mich at 287.
Accordingly, defendant argues, the enforcement of the late fee requires a pre-determination of
defendant’s ability to pay because it represents a post-sentence increase in defendant’s
punishment.

        However, that argument is undercut by the fact that the potential for the late fee was in
fact included within the Judgment of Sentence in this case. Furthermore, “the true issue is
always indigency,” Jackson, 483 Mich at 295, and defendant’s argument is premised on the
assumption that he has remained indigent. Defendant’s argument also requires the assumption
that his indigency caused his failure to pay the late fee, given his recognition that the late fee
could be constitutionally applied where a defendant willfully refuses to pay or makes no bona
fide effort to do so. See Bearden, 467 US at 668. Despite that Jackson expressly declined to
review the constitutionality of the 20-percent late fee, it nonetheless recognized the general,
common sense conclusion that a defendant’s indigency is not necessarily a fixed, permanent
status. See 483 Mich at 290. Accordingly, when the State enforces fees and costs through the
prisoner recoupment statute, MCL 769.1l, the burden is not first on the State to establish that a
defendant is not indigent before it may pursue payment under the statute; prisoners whose basic
expenses are paid for by the State and whose accounts exceed the statutory amount before
garnishment is permitted are presumptively non-indigents, regardless of their status at
sentencing.

        Here, before an order to remit prisoner funds was entered pursuant to MCL 769.1l,
defendant was informed of and expressed understanding of the fact that he would be assessed all
applicable fines, costs, and fees at his plea hearing, and his Judgment of Sentence specifically
reflected the potential late fee. Further, his equal-protection claim is premised on his continued
status as an indigent and a finding that he has not willingly avoided payment, but defendant

                                                -6-
offers no adequate basis to refute the basic notion that collection efforts through MCL 769.1l
account for a level of non-indigency such that if defendant wishes to avoid the State’s
garnishment of his prison account, he bears the burden to bring that issue in the trial court for its
review of the circumstances particular to defendant’s situation.6

        Finally, defendant argues that counsel rendered deficient performance in failing to raise
the issues defendant raises on appeal. Defendant asserts that counsel should have objected to the
validity of the attorney fees as inconsistent with Cunningham, requested that the attorney fees be
avoided or reduced on the basis of financial hardship, and asserted that the 20-percent late fee be
waived. Whether a defendant received ineffective assistance of counsel presents a question of
constitutional law reviewed de novo. People v Lockett, 295 Mich App 165, 186; 814 NW2d 295
(2012).

              To establish ineffective assistance of counsel, a defendant must prove that
       his counsel’s performance was deficient and that, under an objective standard of
       reasonableness, defendant was denied his Sixth Amendment right to counsel.
       People v Grant, 470 Mich 477, 485; 684 NW2d 686 (2004). The deficiency must
       be prejudicial to defendant to the extent that, but for counsel’s error, the result of
       the proceedings would have been different. Id. at 486 . . . . Effective assistance
       of counsel is presumed, and the defendant bears a heavy burden to prove
       otherwise. People v Garza, 246 Mich App 251, 255; 631 NW2d 764 (2001).
       [People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005).]

       The Cunningham issue lacks merit for the reasons stated above, and “[c]ounsel is not
required to advocate a meritless position.” People v Dunigan, 299 Mich App 579, 589; 831
NW2d 243 (2013). Regarding the remaining issues, the trial court entered the order to remit
prisoner funds on the same day that it entered the Judgment of Sentence. Under Jackson, this
amounted to the enforcement of the attorney fees without an ability-to-pay assessment. See 483
Mich at 294-295. Accordingly, it would be conceivable error if counsel failed to raise the issue
and knew of defendant’s purported extreme financial circumstances amounting to manifest



6
  Defendant also argues that the 20-percerent late fee is usurious and its application is irrational
in light of the fact that it is not measured on the basis of the amount due and how late the
payment is made. Importantly, a “ ‘facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.’ ” IME v DBS, 306 Mich App 426,
439-440; 857 NW2d 667 (2014), quoting United States v Salerno, 481 US 739, 745; 107 S Ct
2095; 95 L Ed 2d 697 (1987). A constitutionally-offensive characteristic of cost-recoupment
statutes as applied to indigent defendants is the lack of exception for indigents or preclusion of
an ability-to-pay defense. See James, 407 US at 41-42. But MCL 600.4803(1) allows for a
waiver of the late fee upon request of the party subject to the fee, which provides defendants an
opportunity to avoid enforcement of the late fee on the basis of their indigency. Defendant has
not yet sought that avenue of relief in the trial court, and thus, any argument regarding
unconstitutional application of the statute is premature.


                                                -7-
hardship such that the attorney fees would have been reduced or waived. However, “it is
important to note that defendant has the burden of establishing the factual predicate for his claim
of ineffective assistance of counsel,” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999), and
as noted above, defendant does not adequately set forth his extreme financial circumstances
(existing now or at the time when he asserts counsel should have raised the issue) or assert that
counsel was sufficiently aware of such circumstances when the Judgment of Sentence and order
to remit prisoner funds was entered. Indeed, at the time of entering his plea and sentencing,
defendant was advised of and agreed to payment of applicable fines, costs, and fees. Moreover,
there does not appear to be any reason why defendant cannot petition the trial court for the relief
that he now seeks. For that reason, defendant has not established a necessary showing of
prejudice for the purposes of his claim of ineffective assistance of counsel.

        To the extent defendant argues that the 20-percent late fee should be vacated by this
Court on the due-process ground that defendant was not first provided an ability-to-pay
assessment, that argument is undercut by Jackson, although not expressly rejected by its analysis,
and relies on distinguishing the attorney fees at issue in Jackson and the late fee under MCL
600.4803, which is an issue that has not been squarely addressed under the relevant caselaw.
Counsel is thus not necessarily ineffective for failing to assert it below. See People v Riley, 468
Mich 135, 140; 659 NW2d 611 (2003) (stating that counsel’s performance is measured on an
objective basis under prevailing professional norms). Moreover, defendant fails to establish that
he was prejudiced because, as with the attorney fees, defendant has not been precluded from
asserting hardship based on indigency in avoidance of the late fee in the trial court.

       Affirmed.

                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Deborah A. Servitto
                                                            /s/ Elizabeth L. Gleicher




                                                -8-
