                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    December 13, 2016
               Plaintiff-Appellee,                                  9:05 a.m.

v                                                                   No. 328603
                                                                    Oakland Circuit Court
TERRENCE LAMONTT JOSE,                                              LC No. 2009-227492-FC

               Defendant-Appellant.


Before: SAAD, P.J., and METER and MURRAY, JJ.

MURRAY, J.

        Defendant was granted leave to appeal1 the June 3, 2015 order of the Oakland circuit
court that denied defendant’s motion to vacate an August 14, 2014 order, requiring defendant to
reimburse Oakland County for the costs of assigned counsel. We reverse the June 3, 2015 order
and remand for the trial court to enter an order vacating the August 14, 2014 order, as defendant
is not required to reimburse the county for attorney fees.

                                       I. BACKGROUND

        Following a jury trial defendant was convicted of first-degree criminal sexual conduct.
Defendant was accused of digitally penetrating his 5-year-old daughter, who lived with
defendant’s former girlfriend. There was no physical evidence of penetration, and defendant
denied the accusations and argued that his former girlfriend convinced the child to falsely accuse
him. Defendant’s trial counsel attempted to bring out the fact that the former girlfriend was still
bitter about breaking up with defendant, but unsuccessfully attempted to confront her with
hostile cellular telephone text messages that she apparently sent to defendant. On cross-
examination the former girlfriend simply denied sending defendant any text messages, and
defendant’s trial counsel did not obtain any of her telephone records in advance of trial and never
managed to get the text messages admitted into evidence.

       Defendant appealed his conviction, and moved to remand his case for a Ginther2 hearing,
which this Court granted on January 2, 2013.3 The circuit court granted defendant’s motion for a



1
  People v Terrence Lamontt Jose, unpublished order of the Court of Appeals, entered February
2, 2016 (Docket No. 328603)
2
  People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
  People v Terrence Lamontt Jose, unpublished order of the Court of Appeals, entered January 2,
2013 (Docket No. 311478).

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new trial, concluding that trial counsel’s failure to properly authenticate the hostile text messages
and get them admitted as evidence denied defendant the effective assistance of trial counsel.4
We subsequently denied the prosecutor’s application for leave to appeal,5 as did our Supreme
Court.6

        On February 25, 2014, the circuit court appointed lawyer Todd Kaluzny to represent
defendant on retrial. Relevant to this appeal, the order states “that defendant is to repay the
County of Oakland for any costs for a court-appointed attorney and any other costs incurred by
the county in this case.” The prosecutor subsequently decided not to proceed with a retrial and
voluntarily dismissed the charge, which is reflected in the circuit court docket entries by a “final
nolle prosequi” on August 7, 2014, and the filing of an “order – nolle prosequi” on December 5,
2014. Importantly, on August 14, 2014, the circuit court entered an order paying defendant’s
appointed trial counsel $900 for the work he performed representing defendant before retrial.

       Although defendant was free from criminal charges and released from custody, he
received notices stating that he owed the county $900 for the cost of his court-appointed counsel.
Relying upon MCL 768.34, defendant moved to vacate the circuit court’s order requiring that he
reimburse the county for the cost of his court-appointed counsel, arguing that someone who had
charges dismissed through nolle prosequi was not required to reimburse the county for the fees
of appointed counsel. The circuit court denied defendant’s motion.

                                          II. ANALYSIS

        Defendant’s sole argument is that, pursuant to the plain language of MCL 768.34, the
trial court erred by refusing to vacate its order requiring defendant to reimburse the county for
the cost of his appointed counsel. Defendant presents a preserved issue of statutory
interpretation that we review de novo. People v Hartwick, 498 Mich 192, 209; 870 NW2d 37
(2015).

      Both parties agree that defendant’s claim requires interpretation of a statute. As our
Supreme Court stated in People v Miller, 498 Mich 13, 22-23; 869 NW2d 204 (2015):

         As with any statutory interpretation, we must give effect to the Legislature’s
         intent by focusing first on the statute’s plain language. When statutory language
         is clear and unambiguous, we assume that the Legislature intended its plain
         meaning and we enforce the statute as written. [Footnotes omitted.]

         The statute at issue in this case is MCL 768.34, which provides:




4
  Defendant withdrew his appeal in Docket No. 311478 after the circuit court granted his motion
for a new trial. People v Terrence Lamontt Jose, unpublished order of the Court of Appeals,
entered September 20, 2013 (Docket No. 311478).
5
 People v Terrence Lamontt Jose, unpublished order of the Court of Appeals, entered September
20, 2013 (Docket No. 317688).
6
    People v Jose, 495 Mich 939; 843 NW2d 215 (2014).

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       No prisoner or person under recognizance who shall be acquitted by verdict or
       discharged because no indictment has been found against him, or for want of
       prosecution, shall be liable for any costs or fees of office or for any charge for
       subsistence while he was in custody.

        As applied to defendant, the operative words of the statute may be stated as: “No
prisoner or person under recognizance who shall be . . . discharged . . . for want of prosecution,
shall be liable for any costs . . . .” This straightforward language applies directly to defendant’s
situation, as after being released on bond pending retrial, he was a “person under recognizance.”7
He was subsequently “discharged . . . for want of prosecution” because the prosecutor declined
to proceed to trial and instead filed a nolle prosequi.8 Therefore, pursuant to the plain language
of the statute, he was not “liable for any costs.”

        As we recognized in People v Nowicki, 213 Mich App 383, 385; 539 NW2d 590 (1995),
a court’s authority to require reimbursement of the expense of court-appointed counsel has been
a settled matter since at least 1970. See People v Bohm, 393 Mich 129, 130; 223 NW2d 291
(1974); Davis v Oakland Circuit Judge, 383 Mich 717, 720; 178 NW2d 920 (1970); and People
v LaPine, 63 Mich App 554, 556-558; 234 NW2d 700 (1975)9. But as we noted in People v
Lavan, 53 Mich App 220, 222; 218 NW2d 797 (1974), a case in which an acquitted defendant
attempted to rely on MCL 768.34 as authority for an award of costs and fees, “[t]he statute
merely states that an acquitted person cannot be made to pay for the administrative expenses
incurred by the state in the prosecution of the case against him. It does not grant defendant the
power to have his costs taxed to the state.”



7
  “A recognizance is a common law obligation, and, by the common law, the sureties may be
bound separately from their principals.” People v Dennis, 4 Mich 609 (1857). Also, “[a]
recognizance is said to be an obligation of record, with condition to be void on performance of
some act specified. It is entered into either before some court of record, or before a magistrate
out of court, and afterwards enrolled in a court of record . . . . If the condition was the
performance of some act in court – as to appear and answer, or to give evidence, or prosecute –
the breach is to be adjudged by the court and entered of record when it occurs. . . . A
recognizance binding a party to appear in court, is said to be forfeited if he fail to appear, be the
cause of his absence what it may. . . . ” Lang v People, 14 Mich 439, 442 (1866).
8
  “In Michigan, normally nolle prosequi is a dismissal without prejudice which does not preclude
initiation of a subsequent prosecution.” People v McCartney, 72 Mich App 580, 585; 250 NW2d
135 (1976), citing People v Reagan, 395 Mich 306; 235 NW2d 581 (1975). In order to obtain a
nolle prosequi, the prosecutor must state on the record the reasons for seeking such an order.
People v Glass, 464 Mich 266, 278; 627 NW2d 261 (2001). In its petition for nolle prosequi, the
prosecution stated that after meeting with the witnesses in preparation for the retrial, it was
learned that the minor victim did not want to proceed to trial again, and without her testimony
the prosecutor could not sustain its burden of proof. Based on this representation, the court
granted the petition and entered an order of nolle prosequi dismissing the case.
9
  The Legislature subsequently amended MCL 769.1k in 2005 to specifically provide authority
for a trial court to order reimbursement for the expenses of providing legal assistance to the
defendant as part of the sentence. MCL 769.1k (1)(b)(iii). See generally People v Cunningham,
496 Mich 145, 151-152; 852 NW2d 118 (2014).

                                                -3-
        We hold that the clear statutory directive contained in MCL 768.34 precludes a trial court
from ordering reimbursement of any costs—including the cost of appointed counsel—for a
defendant whose prosecution is suspended or abandoned. Because that is what occurred here,
the trial court erred in not vacating its August 14, 2014 order requiring defendant to reimburse
the county.

        The prosecutor alternatively argues that there was authority for the court to order
reimbursement pursuant to MCR 6.005(C). This court rule relates to the appointment of counsel
for indigent defendants and provides:

              (C) Partial Indigency. If a defendant is able to pay part of the cost of a
       lawyer, the court may require contribution to the cost of providing a lawyer and
       may establish a plan for collecting the contribution.

        We recognized in Nowicki that there is a difference between an order for contribution to
the cost of a court-appointed attorney by a defendant who is only partially indigent as a condition
for the appointment of the attorney, and reimbursement of the cost of an appointed attorney
following a defendant’s conviction:

               MCR 6.005(C) provides for a defendant’s contribution to the cost of
       providing a lawyer where the defendant “is able to pay part of the cost of a
       lawyer.” However, the 1989 staff comment to MCR 6.005(C) provides that
       “[t]his subrule pertains to contribution and should not be construed as authorizing
       subsequent reimbursement.” This subrule is based on 1 ABA Standards for
       Criminal Justice (2d ed), Standard 5-6.2: “The ability to pay part of the cost of
       adequate representation should not preclude eligibility.” See 1989 staff comment.
       Before the adoption of this court rule, the Michigan Supreme Court adopted § 6.2
       (Partial Eligibility) of the ABA Standards relating to Providing Defense Services
       in addressing the problem of representation of an individual who, although
       perhaps “not impecunious, [is nevertheless] indigent insofar as ability to hire a
       competent lawyer.” [People v] Bohm, [393 Mich] at 130[, n 1]. Rather than
       preclude eligibility, the Court held that the defendant was entitled to counsel. Id.
       We believe MCR 6.005(C) addresses this concern and accordingly provides for
       contribution by a defendant “able to pay part of the cost of a lawyer.” However,
       this subsection does not preclude trial courts from ordering subsequent
       reimbursement of expenses paid for court-appointed counsel. [Nowicki, 213 Mich
       at 386-387, n 3.]

Thus, we have differentiated between an order for “contribution” (which suggests an on-going
obligation during the term of the appointment) and “reimbursement” (which suggests an
obligation arising after the term of appointment has ended).10 The applicable statute, MCL



10
   The dictionary definitions of “contribution” are: 1) a payment (as a levy or tax) imposed by
military, civil, or ecclesiastical authorities usu. for a special or extraordinary purpose; 2: the act
of contributing[.]” Merriam-Webster’s Collegiate Dictionary (11th ed), p 272. By way of
contrast, the definitions of “reimburse” are: 1: to pay back to someone: REPAY 2: to make
restoration or payment of an equivalent to[.]” Id. at 1049.

                                                 -4-
768.34, forbids reimbursement and the trial court ordered “that defendant is to repay the County
of Oakland for any costs for a court-appointed attorney and any other costs incurred by the
county in this case.” The court never determined that defendant was “able to pay part of the cost
of a lawyer” and never “require[d] contribution.” MCR 6.005(C).

        Finally, we reject the prosecutor’s argument that the statute is directed at reimbursement
of the costs of incarceration, not attorney fees. This argument cannot be squared with the plain
statutory language which states that it applies to three types of reimbursement: costs, fees of
office, or charges for subsistence. MCL 768.34. It is only the last of these three that involves
the costs associated with a defendant’s incarceration, and the fact that the statute sets these three
types of costs apart shows that they are to be treated separately. Defendant was not ordered to
pay back the charges associated with his subsistence during his incarceration; he was ordered to
reimburse his appointed counsel costs. This is clearly the first of the three types of
assessments—a type of “cost”—and under the plain statutory language, the trial court was
forbidden to assess any costs against a defendant who was discharged after the prosecution
decided to no longer pursue the charges.

       We reverse the June 3, 2015 order and remand for the trial court to enter an order
vacating the August 14, 2014 order requiring defendant to reimburse the county for attorney fees.
We do not retain jurisdiction.



                                                              /s/ Christopher M. Murray
                                                              /s/ Henry William Saad
                                                              /s/ Patrick M. Meter




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