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147437 - People v Cunningham (Frederick)

The People of the State of Michigan,
Aaron D. Lindstrom
(Appeal from Ct of Appeals)
(Allegan – Bakker, M.)
Frederick Lawrence Cunningham,
Anne M. Yantus


​Defendant Frederick Cunningham was arrested after presenting fraudulent prescriptions to a pharmacy in order to obtain narcotics. He pled guilty to a charge of obtaining a controlled substance by fraud, and was sentenced to prison for a term of 1 to 4 years. At sentencing, the trial court also stated that Cunningham would be required to pay various costs and fees, including $1,000 in court costs. 

Cunningham did not object at the time, although he later filed a motion to correct the sentence, arguing that the $1,000 assessment for court costs bore no relationship to the actual and direct expenses of a criminal case.

 The prosecutor argued in response that the costs were appropriate under MCL 769.34(6), which states that a sentencing court may order a defendant to “pay any combination of a fine, costs, or applicable assessments.” When a defendant enters a guilty plea or is convicted, the court “may impose . . . any cost” or “any assessment authorized by law.” MCL 769.1k(1). The prosecutor argued that, in light of this law, the trial court’s imposition of a flat fee of $1,000 in court costs was appropriate.

 The trial court denied Cunningham’s motion to correct the sentence, ruling that the assessment of $1,000 in court costs was authorized by MCL 769.1k and MCL 769.34(6), and that there was no requirement that the costs bear a reasonable relationship to the expenses actually incurred in the specific case before the court.

 Cunningham appealed. Rather than immediately decide the issues raised by Cunningham, the Court of Appeals first remanded the case to the trial court for a hearing under its just-released decision in People v Sanders, 296 Mich App 710 (2012). In Sanders, the Court of Appeals held that an assessment of court costs must bear a reasonable relationship to the actual costs incurred by the trial court, but that the court costs do not need to be calculated with exact precision in each individual case. Sanders stated that the Legislature seemed to have endorsed a “reasonable flat fee” approach. The Court of Appeals directed Cunningham’s sentencing court to “factually establish the reasonable costs figure for felony cases in Allegan County Circuit Court, while affording [Cunningham] the opportunity to challenge that determination.”

 On remand, the trial court considered the testimony of the circuit court administrator, who testified that the average cost per felony case in Allegan Circuit Court was $1,238.48. This amount included $563.15 per case to cover the cost of court-appointed counsel for indigent defendants, and also included such indirect costs as courthouse use, board of commissioners’ time, county administration time, audit costs, treasurer time, network and phone costs, facilities maintenance, building security, fringe benefit processing, and fitness center costs.  The court administrator explained that, as a result of his research, the circuit court had chosen to implement a policy of imposing standard assessments in felony cases of $500 in court costs and, if appropriate, an additional $500 in court-appointed attorney fees. As a result, he testified, the proper assessment for Cunningham was $1,000 to cover both court costs and attorney fees.  Cunningham objected that the assessments for court costs and court-appointed attorney fees should be separate, that costs imposed should reflect the difference between a guilty plea and trial, that the cost of operating and maintaining the courthouse should not be included, and that the cost of the county employee fitness center should not be included. The trial court ruled that there was a reasonable relationship between the costs assessed against Cunningham ($1,000) and the actual functioning of the Court.

 The case then returned to the Court of Appeals, which affirmed in a split published opinion. The majority held that the trial court properly considered overhead costs when determining the amount of costs to impose, citing Sanders. The majority also relied on Sanders for the conclusion that a sentencing court need not calculate particularized court costs in every criminal case, quoting from that decision: “If we embraced defendant’s argument that costs should be less in a case resolved by a plea that only took ‘25 minutes of court time’ rather than by a trial, there would be a realistic concern that we would be penalizing a defendant for going to trial rather than pleading guilty. That is, a system where greater costs were imposed on a defendant who went to trial rather than plead guilty or nolo contendere would create a financial incentive for a defendant to plea rather than face the possibility of even greater court costs being imposed for exercising his or her constitutional right to a trial.” 

 The dissenting judge concluded that the majority erred in following Sanders rather than People v Dilworth, 291 Mich App 399 (2011), which was decided before Sanders. Dilworth examined the imposition of the “costs of prosecution” on a defendant as a term of his probation, under MCL 771.3. Under Dilworth, the dissenting judge explained, court costs may be assessed, but they must be limited to those specifically incurred because of an individual case.  Such costs may not include “expenditures in connection with the maintenance and functioning of governmental agencies . . . .”

 Cunningham appealed to the Michigan Supreme Court, arguing that the Supreme Court should resolve the conflict between the Dilworth and Sanders decisions. The Supreme Court granted leave to appeal on November 20, 2013, directing the parties to address several issues, including: (1) whether Sanders correctly held that the Legislature’s intent in authorizing an assessment of “any cost” under MCL 769.1k(1)(b)(ii) was to adopt a flat fee approach that does not require precision and does not require separately calculating the costs involved in a particular case; (2) whether assessments of “court costs” are similar to, or interchangeable with, “costs of prosecution”; (3) whether the general principles set out in Dilworth and other earlier decisions, which dealt with statutory costs of prosecution and probation costs, apply to assessments under MCL 769.1k(1); and (4) whether the Court of Appeals properly applied Sanders to affirm the assessment of $1,000 in court costs on the basis that it was reasonably related to the $1,238.48 average actual cost per criminal case in the Allegan Circuit Court (including overhead and indirect expenses).