Opinion
363957
12-14-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CIARA RENAE-LEE DEMANAEUS, Defendant-Appellant.
UNPUBLISHED
Charlevoix Circuit Court LC No. 21-027514-FH
Before: GLEICHER, C.J., and GARRETT and MALDONADO, JJ.
PER CURIAM.
Defendant appeals by leave granted one of the fees the trial court imposed as part of her sentence for her plea-based conviction of one count of possession with intent to deliver Suboxone, MCL 333.7401(2)(b)(ii). Defendant also makes issue of two ministerial aspects of her case file. We reverse the $50 fee defendant was ordered to pay to the local victim restitution fund, and the trial court is ordered to correct defendant's surname on the amended judgment of sentence.
People v Demanaeus, unpublished order of the Court of Appeals, entered January 13, 2023 (Docket No. 363957).
I. FACTS On April 23, 2021, a confidential informant advised the Straits Area Narcotics
Enforcement (SANE) team that the informant had previously purchased a controlled substance called Suboxone from defendant and could obtain more from her. On April 23, 2021, and May 3, 2021, the confidential informant met with defendant for two controlled buys of Suboxone. A felony complaint was filed, and defendant was charged with two counts of possession with intent to deliver Suboxone, one count of using a computer to commit a crime, MCL 752.794, and one count of maintaining a drug house, MCL 333.7405(1)(d). The complaint used the heading "Controlled Substance-Delivery/Manufacture (Schedule 1, 2, and 3 Except Marijuana, Meth, Ecstasy &Cocaine)" for the possession with intent to deliver charges. This heading or description was used in many subsequent instances in this case to refer to the Suboxone offense.
At a show-cause hearing conducted regarding defendant's failure to submit drug-testing results, defendant requested that the surname "Carpenter" be used instead of "Demanaeus." She stated that she had not used the latter surname for four years because she changed her name to "Carpenter" when she got married. Transcripts of subsequent hearings continued to be captioned with the former surname, while the trial court referred to defendant by her correct legal name, as shown on her marriage license. Defendant's presentence investigation report (PSIR) primarily referred to defendant using the surname "Demanaeus." The PSIR also refers to the offense only with the heading from the felony complaint, with no mention that the specific crime was possession with intent to deliver.
At sentencing, defendant objected to the PSIR's use of her former surname, and the prosecuting attorney and trial court expressed agreement. The court ordered that the PSIR at least include the surname "Carpenter" when referencing defendant by name. The trial court sentenced defendant to serve a term of incarceration of 210 days, and also to pay $1,178 in fees, allocated as "restitution to SANE in the amount of $280, $68 state costs, a crime victims assessment of $130, court costs of $300, $50 to the local victim restitution fund, $350 reimbursement to Charlevoix County for court-appointed attorney fees." The judgment of sentence also used a broad offense heading, without mentioning the specific crime of possession with intent to deliver, and the PSIR was never amended to reflect defendant's correct surname.
II. ANALYSIS
A. STANDARDS OF REVIEW
We review a trial court's findings of fact for clear error, while questions of law are reviewed de novo. See People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). We review unpreserved appellate claims for plain error. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "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." Id. "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." Id. at 763-764 (quotation marks, citation, and alterations omitted).
B. COSTS
Defendant argues that the trial court erred by ordering payment of a $50 fee to a local victim restitution fund because it lacked statutory authority for doing so. We agree.
The issue formally raised by defendant pertains to the constitutionality of MCL 769.1k(1)(b)(iii), but the actual argument set forth by defendant in no way addresses constitutionality and instead focuses entirely on whether the court had statutory authority to impose this particular fee.
"[T]he ultimate authority to provide for penalties for criminal offenses is constitutionally vested in the Legislature." People v Hegwood, 465 Mich. 432, 436; 636 N.W.2d 127 (2001). "The authority to impose sentences and to administer the sentencing statutes enacted by the Legislature lies with the judiciary." Id. at 436-437. The version of MCL 769.1k(1)(b) in effect at the time of defendant's sentencing provided as follows:
The current version is identical, except for updating the sunset date in Subparagraph (iii) to May 1, 2024. 2022 PA 199.
(1) 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 by statute or sentencing is delayed by statute:
(a) The court shall impose the minimum state costs as set forth in [MCL 769.1j]. (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 October 1, 2022, 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.
(iv) The expenses of providing legal assistance to the defendant.
(v) Any assessment authorized by law.
(vi) Reimbursement under [MCL 769.1f].MCL 769.1j(1)(a) provides for the assessment of at least $68 "if the defendant is convicted of a felony." Additionally, MCL 780.905(1)(a) provides for the assessment of $130 for felony convictions, and MCL 780.905(4) provides that this fee "shall be used to pay for crime victim's rights services. Finally, MCL 780.766(2) provides that a convicted defendant must "make full restitution to any victim of the defendant's course of conduct that gives rise to the conviction," and MCL 780.766(1) defines the term "victim" to include a "governmental entity" that suffered "financial harm as a result of a crime."
In the present case, defendant was subject to six different fees, the first five of which were as follows: first, defendant was assessed a $68 state minimum fee; second, defendant was assessed a $130 crime victim fee; third, defendant was assessed $280 for restitution to SANE; fourth, defendant was assessed $300 for court costs; and fifth, defendant was assessed $350 for attorney fees. Defendant does not contest these fees; rather, defendant only contests a $50 fee assessed for a local victim restitution fund, and there is no clear statutory basis for this fee. Defendant relies on People v Cunningham, 496 Mich. 145; 852 N.W.2d 118 (2014). In that case, the Supreme Court interpreted a prior version of MCL 769.1k, which provided:
See MCL769.1j(1)(a).
See MCL 780.905(1)(a)(4).
See MCL 780.766(2).
See MCL 769.1k(1)(b)(iv).
(1) 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 [MCL 769.1j].
(b) The court may impose any or all of the following:
(i) Any fine.
(ii) Any cost in addition to the minimum state cost set forth in subdivision
(a). (iii) The expenses of providing legal assistance to the defendant.
(iv) Any assessment authorized by law.
(v) Reimbursement under section 1f of this chapter. [Id. at 151-152.]
The Supreme Court examined the since-amended MCL 769.1k(b)(ii) to ascertain the limits imposed upon the costs a trial court may assess pursuant to this provision. Id. at 153-154. The Supreme Court concluded that this provision limited the trial court to the imposition of "only those costs that the Legislature has separately authorized by statute." Id. at 154. The subsequent amendments to the statute only reinforce that costs imposed must have a statutory basis.
In People v Konopka (On Remand), 309 Mich.App. 345, 351; 869 N.W.2d 651 (2015), this Court considered the continuing applicability of Cunningham in light of the amendments to MCL 769.1k. This Court concluded "that MCL 769.1k(1)(b)(iii) independently authorizes the imposition of costs in addition to those costs authorized by the statute for the sentencing offense." Id. at 358. However, while the amended statute affords broader authority to assess costs than was permissible when Cunningham was decided, costs were still limited to those that "were reasonably related to the actual costs incurred by the trial court ...." Id. at 359-360.
In this case, there was no relationship between the fee assessed for the local victim restitution fund and the actual costs that the trial court incurred. Therefore, MCL 769.1k(1)(b)(iii) does not apply with respect to this cost. As noted above, the only entity that could be classified as a victim was SANE due to the expenses incurred working on this case, but SANE was compensated through the $280 restitution order. We know of no other source of statutory authority which could support this $50 award to the local victim restitution fund, and therefore, this was an impermissible cost.
The fact that the court erred does not end our analysis because, as defendant concedes, this issue is unpreserved, and unpreserved claims of error are subject to plain error review. See Carines, 460 Mich. at 763. "A 'clear or obvious' error under the second prong is one that is not subject to reasonable dispute." People v Randolph, 502 Mich. 1, 10; 917 N.W.2d 249 (2018) (quotation marks and citation omitted). It cannot be reasonably disputed that costs cannot be imposed upon a convicted defendant absent express statutory authority, and the court in this case ordered a fee to a restitution fund wholly unrelated to the case before it. Therefore, this requirement is satisfied. The error affected the outcome of the proceedings because, absent the error, defendant's final bill arising from her conviction would have been $50 lower. See Carines, 460 Mich. at 763. Finally, we conclude that the "integrity or public reputation of judicial proceedings" was "seriously affected" by the trial court's imposition of costs without any Legislative authorization. See Id. at 763-764.
C. RECORD CORRECTIONS
Defendant argues that, on remand, two ministerial errors should be corrected on her judgment of sentence. First, defendant argues that her surname was incorrect, and second, defendant argues that the incorrect offense was listed.
Defendant has established error regarding her surname, and on remand, the trial court shall complete the ministerial task of correcting defendant's surname in the judgment of sentence. Defendant has been on the record asking for the use of her legal surname "Carpenter" in this case since at least her April 8, 2022 hearing. Defendant is requesting only that "Carpenter" be added to the PSIR where her surname is referenced. The trial court and prosecutor even expressed agreement with this change-which could be accomplished easily, with "Demanaeus" remaining alongside the addition of "Carpenter" when defendant's surname is needed-but apparently it still has not been done. The trial court's failure to ensure that this matter was corrected was clear error, and completing the ministerial task of correcting it on remand is warranted.
However, defendant has failed to establish plain error regarding the term used to refer to the offense for which she was convicted. MCL 333.7401(1) provides that, "[e]xcept as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance." Any of those violations with respect to Suboxone is "punishable by imprisonment for not more than 7 years or a fine of not more than $10,000.00, or both." MCL 333.7401(2)(b)(ii). The heading used throughout most of the case file, "Controlled Substance-Delivery/Manufacture (Schedule 1, 2, and 3 Except Marijuana, Meth, Ecstasy &Cocaine)," is the heading found in the Prosecuting Attorneys Coordinating Council (PACC) Warrant Manual entry for MCL 333.7401(2)(b)(ii) offenses. Defendant challenges the use of the PACC heading for her offense, instead of wording more specifically indicating possession with intent to deliver. Defendant did not preserve this issue below, and cites no authority on appeal for the proposition that a criminal defendant is entitled to such specificity in a judgment of sentence or PSIR. This was the correct PACC heading for this specific offense, and utilizing the PACC heading in the limited spaces for headings in a judgment of sentence or PSIR is common practice. Therefore, defendant has not established plain error.
III. CONCLUSION
The trial court's order requiring that defendant pay $50 to the local victim restitution fund is reversed. This case is remanded for the limited purposes of correcting defendant's judgment of sentence in a manner consistent with this opinion. We do not retain jurisdiction.