                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 18, 2016
              Plaintiff-Appellee,

v                                                                  No. 324139
                                                                   Wayne Circuit Court
NICHOLAS LAYNE MCCOY,                                              LC No. 14-001526-FC

              Defendant-Appellant.


Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals by delayed leave granted1 his guilty plea convictions of child sexually
abusive activity (CSAA), MCL 750.145c(2), and second-degree criminal sexual conduct (CSC-
II), MCL 750.520c. Defendant was sentenced to 13 to 20 years’ imprisonment for the CSAA
conviction and 10 to 15 years’ imprisonment for the CSC-II conviction. Defendant was also
assessed court costs of $600. We affirm defendant’s convictions and sentences, but remand the
case to the trial court to complete an amended judgement of sentence vacating the $600 in court
costs.

       The factual basis for the guilty plea was an October 2012 incident, in which defendant
touched a 12-year-old child on the buttocks for a sexual purpose. In addition to being sentenced
to terms of imprisonment, defendant was assessed $600 in court costs. Defendant’s sole
contention on appeal is that the $600 in court costs should be vacated because the court costs
were not authorized by a specific legislative act. We agree.

        A defendant must object to the assessment of costs when they are imposed in order to
preserve the issue for appellate review. People v Konopka (On Remand), 309 Mich App 345,
356; 869 NW2d 651 (2015). Defendant failed to object to the trial court’s assessment of court
costs at sentencing. Therefore, this issue is unpreserved. See id. We review the unpreserved
issue for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999). “To avoid forfeiture under the plain error rule, three requirements


1
  People v McCoy, unpublished order of the Court of Appeals, entered December 9, 2014
(Docket No. 324139).


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must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights.” Id. This third requirement is satisfied if the defendant
can demonstrate prejudice, i.e., that the error affected the outcome of the lower court
proceedings. Id. If the defendant satisfies these three requirements, this Court will only grant
reversal “when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings independent of the defendant’s innocence.” Id. at 763 (citation and
quotation marks omitted; alteration in original).

        Prior to an October 17, 2014 amendment, MCL 769.1k provided that a trial court had the
authority to impose “[a]ny cost in addition to the minimum state cost set forth in subdivision
(a).” MCL 769.1k(1)(b)(ii), as amended by 2005 PA 316. The Michigan Supreme Court
addressed the meaning of this language in People v Cunningham, 496 Mich 145; 852 NW2d 118
(2014), superseded by statute as stated in Konopka (On Remand), 309 Mich App 345. The Court
held that the statute “does not provide courts with the independent authority to impose ‘any cost.’
” Cunningham, 496 Mich at 154. Instead, the Court held that the statute “provides courts with
the authority to impose only those costs that the Legislature has separately authorized by
statute.” Id.

         After the Court’s decision in Cunningham, the Legislature amended MCL 769.1k(1) to
state:

                  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:

                 (a) The court shall impose the minimum state costs as set forth in section
         1j of this chapter.

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

                 (i) Any fine authorized by the statute for a violation of which the
         defendant entered a plea of guilty or nolo contendere or the court determined that
         the defendant was guilty.

                 (ii) Any cost authorized by the statute for a violation of which the
         defendant entered a plea of guilty or nolo contendere or the court determined that
         the defendant was guilty.

                 (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.

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

               (iv) The expenses of providing legal assistance to the defendant.

               (v) Any assessment authorized by law.

               (vi) Reimbursement under section 1f of this chapter.

The amended act “applies to all fines, costs, and assessments ordered or assessed under section
1k . . . before June 18, 2014, and after the effective date of this amendatory act.” 2014 PA 352,
enacting § 1. The effective date of the amendatory act is October 17, 2014. 2014 PA 352.

        Defendant argues that applying the amended version of MCL 769.1k to his case would
violate the Ex Post Facto Clause of the United States and Michigan Constitutions because the
costs are a form of punishment that were not authorized at the time defendant committed his
offenses. However, this Court already held in Konopka that the amended act is not a form of
punishment and that applying it retroactively does not violate the Ex Post Facto Clause.
Konopka (On Remand), 309 Mich App at 370, 372-376.

        While the Ex Post Facto Clause does not bar application of the amended statute to
defendant, the language in the act that amended the statute clearly states that it does not apply to
defendant. The first enacting section of 2014 PA 352, the act that amended MCL 769.1k, states
that the act only applies to “fines, costs, and assessments ordered or assessed under section 1k . .
. before June 18, 2014, and after the effective date of this amendatory act.” 2014 PA 352,
enacting § 1. The $600 in court costs were assessed to defendant on June 19, 2014, i.e., one day
after June 18, 2014, and before October 17, 2014, the effective date of the amendatory act.
Therefore, the amended statute does not apply to defendant’s court costs. See id. Without the
amended statute, the trial court did not have the statutory authority to impose general court costs
against defendant. Therefore, it was plain error for the court to impose court costs. See id.;
Carines, 460 Mich at 763.

       We remand to the trial court to complete an amended judgement of sentence vacating the
$600 in court costs. In all other respects, we affirm. We do not retain jurisdiction.


                                                             /s/ Elizabeth L. Gleicher
                                                             /s/ Kathleen Jansen
                                                             /s/ Douglas B. Shapiro




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