                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 22, 2015
              Plaintiff-Appellee,

v                                                                  No. 323455
                                                                   Otsego Circuit Court
JAMES ANDERSON CHEATOM,                                            LC No. 14-004798-FC

              Defendant-Appellant.


Before: GADOLA, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals by leave granted1 his conviction by plea of delivery of less than 50
grams of a controlled substance (heroin), MCL 333.7401(2)(a)(iv). Defendant was sentenced as
a second habitual offender, MCL 769.10, to 40 months to 30 years’ imprisonment for his
conviction. We affirm defendant’s conviction and remand for further proceedings consistent
with this opinion.

        Defendant argues that the trial court did not have authority to impose court costs. We
agree that the trial court lacked independent statutory authority to impose costs pursuant to MCL
769.1k(1)(b)(ii), but further hold that the trial court may impose costs pursuant to MCL
769.1k(1)(b)(iii). We reject defendant’s argument that application of the amended version of
MCL 769.1k(1)(b)(iii) violates the ex post factor clause of the Constitution or constitutes an
unconstitutional tax.

       A defendant must object when the trial court orders a defendant to pay costs and attorney
fees. People v Konopka (On Remand), 309 Mich App 345, 356; 869 NW2d 651 (2015).
Defendant failed to object when the trial court ordered him to pay court costs. Therefore, this
issue is unpreserved. This Court reviews unpreserved issues for plain error affecting a
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).




1
  People v Cheatom, unpublished order of the Court of Appeals, entered October 16, 2014
(Docket No. 323455).


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        Defendant contends that the trial court erred in imposing court costs because the trial
court did not have independent authority for the imposition of costs, as required by People v
Cunningham, 496 Mich 145; 852 NW2d 118 (2014). In Cunningham, our Supreme Court held
that 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. Id. at 154. In this case, the
imposition of court costs was not separately authorized by statute, as required by Cunningham.

        Nonetheless, the trial court’s imposition of court costs is authorized by the amended
version of MCL 769.1k(1)(b)(iii). On October 17, 2014, the Legislature amended MCL 769.1k
to allow a trial court to impose any costs reasonably related to the actual costs incurred by the
trial court without separately calculating those costs involved in the particular case. 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. Konopka, 309 Mich App at 357, citing 2014 PA 352. Defendant
was sentenced on March 3, 2014. Accordingly, the amended version of MCL 769.1k applies.

       The amended version of MCL 769.1k(1)(b) provides, in relevant part:

       (b) The court may impose any or all of the following:

                                             * * *

       (iii) Until 36 months after the date the amendatory act that added subsection (7) is
       enacted into law, any cost reasonably related to the actual costs incurred by the
       trial court without separately calculating those costs involved in the particular
       case, including, but not limited to, the following:

       (A) Salaries and benefits for relevant court personnel.

       (B) Goods and services necessary for the operation of the court.

       (C) Necessary expenses for the operation and maintenance of court buildings and
       facilities.

       In this case, the trial court imposed court costs without explanation. Although the court
costs do need to be separately calculated, MCL 769.1k(1)(b)(iii), the trial court must establish a
factual basis under the statute for the costs imposed. Konopka, 309 Mich App at 359.
“[W]ithout a factual basis for the costs imposed, we cannot determine whether the costs imposed
were reasonably related to the actual costs, as required by MCL 769.1k(1)(b)(iii).” Id. at 359-
360. Therefore, we remand to the trial court to establish a factual basis of the court costs
imposed.

       Defendant also argues that the costs are punishment and thus violate the Ex Post Facto
Clauses of the Michigan and United States Constitutions. However, Konopka held that the
“court costs imposed under MCL 769.1k(1)(b)(iii) are not a form of punishment.” Id. at 370.
Rather, the Court concluded, the costs are intended to be a civil remedy. Id. at 373.
Accordingly, we reject defendant’s claim.


                                               -2-
        Defendant asserts that the costs imposed are an unconstitutional tax. Defendant notes
that a fee is “exchanged for a service rendered or a benefit conferred, and some reasonable
relationship exists between the amount of the fee and the value of the service or benefit,” while a
“tax, on the other hand, is designed to raise revenue.” Bolt v City of Lansing, 459 Mich 152,
161; 587 NW2d 264 (1998) (citations and internal quotation marks omitted). Because the costs
at issue must be “reasonably related to the actual costs incurred by the trial court,” MCL
769.1k(1)(b)(iii), they constitute a fee, not a tax. For this reason, defendant’s argument that the
amended statute violates the separation of powers of the Michigan Constitution because the
court, rather than the Legislature, imposes the “tax” on defendants in the form of court costs
fails.

        Defendant’s conviction is affirmed. We remand to the trial court to establish a factual
basis of the court costs imposed. We do not retain jurisdiction.


                                                            /s/ Michael F. Gadola
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Karen M. Fort Hood




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