            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    February 28, 2019
               Plaintiff-Appellee,

v                                                                   No. 340535
                                                                    Oakland Circuit Court
JEAN ANTHONY,                                                       LC No. 2017-263059-FH

               Defendant-Appellant.


Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

        After a jury trial, defendant was convicted of third-degree home invasion, MCL
750.110a(4), and malicious destruction of personal property less than $200, MCL
750.377a(1)(d). The trial court sentenced defendant as a second habitual offender, MCL 769.10,
to 16 months to 7½ years of imprisonment for his third-degree home invasion conviction and to
56 days of imprisonment for his malicious destruction of property conviction. Finally, the trial
court also assessed $500 of court costs to defendant under MCL 769.1k. Defendant appeals as of
right, and we affirm.

                                            I. FACTS

        In the early morning hours of May 15, 2017, defendant came to the house of his ex-
girlfriend, BS, and asked her to let him in. BS declined and, after thinking that defendant had
left, went into her garage to take her daughter to the airport. As BS opened the garage door,
defendant entered the garage and refused to leave. BS thereafter called the police and left to
bring her daughter to the airport. Police arrived, called a cab for defendant, and told him that he
needed to leave. The police officers left before the cab arrived. When BS returned home she
drove into her garage and defendant entered her garage as she was closing the garage door. BS
again asked defendant to leave and he refused. Defendant then began kicking the front of BS’s
vehicle and hitting the driver’s side window with a piece of cement. Defendant’s actions
prompted BS to call the police again. Defendant was detained by police upon their arrival.
                                        II. DISCUSSION

               A. THE PROPORTIONALITY OF DEFENDANT’S SENTENCE

       Defendant argues that his third-degree home invasion sentence is disproportionate to his
circumstances as well as the circumstances of his offense. We disagree.

        The proportionality of a defendant’s sentence is reviewed for an abuse of discretion.
People v Foster, 319 Mich App 365, 375; 901 NW2d 127 (2017). “A given sentence constitutes
an abuse of discretion if that sentence violates the principle of proportionality . . . .” People v
Lowery, 258 Mich App 167, 172; 673 NW2d 107 (2003); see also People v Steanhouse, 500
Mich 453, 471; 902 NW2d 327 (2017). The trial court’s interpretation of statutes and court rules
is reviewed de novo. People v Kimble, 470 Mich 305, 308-309; 684 NW2d 669 (2004).

        A sentence that falls within the appropriate sentencing guidelines range “is presumptively
proportionate and must be affirmed.” People v Jackson, 320 Mich App 514, 527; 907 NW2d
865 (2017), lv pending. Consequently, “this Court is required to review for reasonableness only
those sentences that depart from the range recommended by the statutory guidelines.” People v
Anderson, 322 Mich App 622, 636; 912 NW2d 607 (2018). Furthermore, MCL 769.34(10)
codifies the instances in which a defendant can challenge his or her sentence, providing:

       If a minimum sentence is within the appropriate guidelines sentence range, the
       court of appeals shall affirm that sentence and shall not remand for resentencing
       absent an error in scoring the sentencing guidelines or inaccurate information
       relied upon in determining the defendant’s sentence. A party shall not raise on
       appeal an issue challenging the scoring of the sentencing guidelines or
       challenging the accuracy of information relied upon in determining a sentence
       that is within the appropriate guidelines sentence range unless the party has raised
       the issue at sentencing, in a proper motion for resentencing, or in a proper motion
       to remand filed in the court of appeals.

This Court has construed this statute to mean that “[w]hen a trial court does not depart from the
recommended minimum sentencing range, the minimum sentence must be affirmed unless there
was an error in scoring or the trial court relied on inaccurate information.” People v Schrauben,
314 Mich App 181, 196; 886 NW2d 173 (2016). Defendant’s argument that MCL 769.34(10)
has not survived our Supreme Court’s decision in People v Lockridge, 498 Mich 358; 870 NW2d
502 (2015), is unpersuasive in light of this Court’s holding in Schrauben, which has clearly
construed MCL 769.34(10) as remaining in effect after Lockridge.

       Defendant does not argue that his sentence fell outside the applicable sentencing
guidelines range of 5 to 28 months, that the trial court relied on inaccurate information, or that
there was an error in scoring the guidelines. Therefore, defendant cannot challenge his sentence
and we must affirm.




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                                           B. MCL 769.1k

       Defendant next argues that the court costs assessed against him under MCL 769.1k are an
unconstitutional tax. We disagree.

        Challenges to the imposition of fees and court costs under MCL 769.1k that are not based
on the defendant’s indigency or the applicability of the statute must be made at the trial court
level to be preserved. People v Jackson, 483 Mich 271, 292 n 18; 769 NW2d 630 (2009).
Defendant did not challenge the constitutionality of the trial court’s assessment of court costs
against him at the trial court level. As a result, the issue is unpreserved. We review unpreserved
issues are reviewed for plain error affecting substantial rights. People v Cain, 498 Mich 108,
116; 869 NW2d 829 (2015).

          To avoid forfeiture under the plain error rule, three requirements 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. The third requirement generally requires a
          showing of prejudice, i.e., that the error affected the outcome of the lower court
          proceedings. It is the defendant rather than the Government who bears the burden
          of persuasion with respect to prejudice. Finally, once a defendant satisfies these
          three requirements, an appellate court must exercise its discretion in deciding
          whether to reverse. Reversal is warranted only when the plain, forfeited error
          resulted in the conviction of an actually innocent defendant or when an error
          seriously affected the fairness, integrity or public reputation of judicial
          proceedings independent of the defendant’s innocence. [People v Carines, 460
          Mich 750, 763-764; 597 NW2d 130 (1999) (quotation marks, citations, and
          brackets omitted).]

In the instant context, prejudice “requires a showing . . . that the error affected the outcome of the
lower court proceedings.” People v Chelmicki, 305 Mich App 58, 69; 850 NW2d 612 (2014)
(quotation marks and citation omitted). Finally, the trial court’s interpretation of statutes and
court rules is reviewed de novo. Kimble, 470 Mich at 308-309.

        Under MCL 769.1k, trial courts can impose court costs on defendants as long as those
costs are “reasonably related to the actual costs incurred by the trial court.” People v Cameron,
319 Mich App 215, 226; 900 NW2d 658 (2017), lv pending. In Cameron, this Court recently
held that the cost assessment of MCL 769.1k is a tax, not a fee, and that the tax is constitutional
and within a trial court’s power to assess to a defendant. Id. at 236. Specifically, the Cameron
Court held that MCL 769.1k is a tax because it is a “revenue-raising statute,” the costs incurred
by payor defendants “are not proportionate to the service provided,” and payor defendants do not
have the ability to refuse or limit the service they are paying for (i.e., the use of the court system
to convict them). Id. at 224, 227-229. Because it is a tax, the Cameron Court then examined
whether MCL 769.1k complies with the Distinct Statement Clause1 of the Michigan
Constitution, Const 1963, art 4, § 32. The Court held that MCL 769.1k does not violate the


1
    “Every law which imposes, continues or revives a tax shall distinctly state the tax.”


                                                  -3-
Distinct Statement Clause because “defendant has presented no evidence indicating that the
Legislature did not intend MCL 769.1k(1)(b)(iii) to raise revenue for the courts or that the court
costs collected are directed to a use unintended by the Legislature.” Id. at 231. Finally, the
Cameron Court then examined whether MCL 769.1k violates the separation of powers provision
of the Michigan Constitution. The Court held that MCL 769.1k does not violate separation of
powers because “the Michigan Constitution does not require an absolute separation of powers”
and MCL 769.1k gives courts adequate guidance such that they do not infringe on the
Legislature’s taxing power. Id. at 235. Thus, the Court held that MCL 769.1k is a constitutional
tax.

        Defendant acknowledges that Cameron is controlling precedent that binds us, even
though it is pending leave in our Supreme Court. See MCR 7.215(C)(2). Nevertheless,
defendant argues that we should hold that MCL 769.1k is an unconstitutional tax in anticipation
of the Supreme Court coming to that same conclusion after it addresses Cameron. We lack that
authority because the Cameron Court addressed the exact same issue and held that MCL 769.1k
is a constitutional tax. As a result, defendant has failed to prove how the imposition of costs
under MCL 769.1k in this case constituted any error, plain or otherwise.

       Affirmed.

                                                            /s/ Jonathan Tukel
                                                            /s/ Michael F. Gadola




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