Opinion
345736
10-14-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LYNN DEMETRIUS CAMERON, Defendant-Appellant.
UNPUBLISHED
Macomb Circuit Court LC No. 2017-002277-FH
Before: Tukel, P.J., and Markey and Swartzle, JJ.ON REMAND
Per Curiam.
This case returns to us on remand following our Supreme Court's remand order in People v Cameron, Mich.; 953 N.W.2d 401 (2021). Our Supreme Court instructed us to reconsider only defendant's challenge to the constitutionality of MCL 769.1k(1)(b)(iii) pending this Court's resolution of People v Lewis (Docket No. 350287). After considering this Court's recent opinion in People v Lewis, unpublished per curiam opinion of the Court of Appeals, issued May 13, 2021 (Docket No. 350287), we again conclude that MCL 769.1k(1)(b)(iii) is constitutional and that defendant must pay the court costs assessed to him under that statute.
I. BACKGROUND
As we explained when this case was originally before us:
This appeal arises out of a traffic stop in Warren, Michigan. On May 19, 2017, defendant was observed by two officers driving his vehicle 60 miles per hour in a 40 mile per hour zone. The officers pulled defendant over and, after obtaining his driver's license and registration, learned that he had an active warrant from Detroit for failing to appear for a misdemeanor offense. Defendant exited his vehicle after several verbal commands from the officers, but was able to flee from the officers' grasp after the officers attempted to place him under arrest. Defendant tripped in a traffic lane on Eight Mile Road and the officers were able to restrain him. Defendant was combative and noncooperative, resisting the officers' attempts
to get his hands behind his back so they could put handcuffs on him. After an off-duty Detroit police officer stopped to render assistance to the officers, they were able to get the handcuffs on defendant and move him off the roadway. Upon searching defendant, the officers discovered a plastic bag holding 24 smaller plastic bags-referred to as zip seals-containing crack cocaine in defendant's pocket. [Cameron, unpub op at 1-2 (footnote omitted).]
We affirmed defendant's convictions and the costs the trial court assessed to defendant under MCL 769.1k(1)(b)(iii). Id. at 2-8. As explained earlier, our Supreme Court remanded this case for us to reconsider defendant's argument that MCL 769.1k(1)(b)(iii ) is unconstitutional in light of Lewis, unpub op; it denied defendant's application for leave to appeal in all other respects. Cameron, ___Mich___; 953 N.W.2d at 401.
II. ANALYSIS
As we explained when this case was originally before us: "We begin by noting that defendant failed to preserve this argument because he did not challenge the constitutionality of the court costs in the trial court." Cameron, unpub op at 5, citing People v Cameron, 319 Mich.App. 215, 220 n 1; 900 N.W.2d 658 (2017). Unpreserved issues are reviewed for plain error. People v Cain, 498 Mich. 108, 116; 869 N.W.2d 829 (2015).
Although our 2017 opinion on this issue also is styled People v Cameron, it involves a different defendant. Our Supreme Court denied leave in that case in 2019, as noted in the text.
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 N.W.2d 130 (1999) (quotation marks, citations, and brackets omitted).]
"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).
In Lewis, unpub op at 1, the defendant argued that MCL 769.1k(1)(b)(iii ), which allows trial courts to impose court costs on convicted defendants, is unconstitutional because it violates due process and the separation of powers. This Court rejected both arguments. Id. This Court recognized that it was bound by this Court's recent decision in People v Johnson, ___Mich App___;___ N.W.2d(2021) (Docket No. 351308), and also found that Johnson was persuasive. Lewis, unpub op at 4-8.
Like Lewis and Johnson, this case involves the version of MCL 769.1k that was in effect before the September 17, 2020 amendment. See 2020 PA 151. The statute's relevant language has not changed.
In Johnson, ___Mich App at___; slip op at 1, the defendant raised a facial challenge to MCL 769.1k(1)(b)(iii), claiming that it deprives criminal defendants of their due-process right to an impartial decisionmaker and violates separation-of-powers principles. This Court held that MCL 769.1k(1)(b)(iii) is not facially unconstitutional. Id. As the Lewis Court explained:
[T]he Johnson panel addressed the question of "whether the financial interests of a trial court might raise due-process concerns." Id. In particular, the panel considered Tumey v Ohio, 273 U.S. 510; 47 S.Ct. 437; 71 L.Ed. 749 (1927); Dugan v Ohio, 277 U.S. 61, 65; 48 S.Ct. 439; 72 L.Ed. 784 (1928); and Ward v Village of Monroeville, Ohio, 409 U.S. 57; 93 S.Ct. 80; 34 L.Ed.2d 267 (1972), before concluding that the facts of the case closely resembled those in Dugan, 277 U.S. at 65, where the defendant's due-process rights were not violated because while "the entity exercising the judicial role benefited from a portion of the revenue generated by court assessments," the entity "did not have control over administration of the revenue." Johnson, ____ Mich App at ____; slip op at 4-7. Although MCL 769.1k(1)(b)(iii) generates revenue for trial courts," 'these provisions do not indicate where the money flows after the costs have been imposed on and paid by a convicted defendant.'" Johnson, ___Mich App at___; slip op at 7, quoting People v Alexander, unpublished per curiam opinion of the Court of Appeals, issued May 14, 2020 (Docket No. 348593), lv pending, p 14. "Indeed, Michigan's Constitution provides that '[n]o judge or justice of any court of this state shall be paid from the fees of his office nor shall the amount of his salary be measured by fees, other moneys received or the amount of judicial activity of his office.'" Johnson, ___Mich App at___; slip op at 7, quoting Const 1963, art 6, § 17 (internal quotation marks omitted; alteration in original). [Lewis, unpub op at 4-5 (footnote omitted).]
In Lewis, this Court concluded that the defendant, like the defendant in Johnson, failed to show" 'that the nexus between the courts and the costs they impose' under MCL 769.1k(1)(b)(iii) undermines a defendant's due-process right to appear before a neutral judge." Lewis, unpub op at 5. This Court further stated:
The Johnson Court adequately explained why defendant's argument cannot succeed under guiding Supreme Court precedent, as the circumstances at issue in Tumey and Ward, both of which dealt with Ohio's "mayor's courts," are vastly different from a courts [sic] imposition of fees under MCL 769.1k(1)(b)(iii), and are more similar to Dugan. Other courts have come to the same conclusion under
similar circumstances. See, e.g., Commonwealth of North Mariana Islands v Kaipat, 94 F.3d 574, 580-582 (CA 9, 1996). [Lewis, unpub op at 5.]
The Lewis Court also concluded that the defendant and his supporters "fail to recognize the long-held and important presumption that judges are impartial and sufficiently independent to follow in every case the oath each has taken to uphold the laws of this state and nation." Lewis, unpub op at 6 (footnote omitted). This Court noted that, if a remedy was needed, it must come from the Legislature. Id. at 7. This Court similarly rejected the defendant's separation-of-powers argument because, like the defendant in Johnson, the defendant in Lewis failed to "establish that the Legislature has made it impossible for trial courts to fulfill their constitutional mandates or that MCL 769.1k(1)(b)(iii) is facially unconstitutional." Id. at 7, quoting Johnson, ___Mich App at ___; slip op at 9.
As explained in Johnson and Lewis, MCL 769.1k(1)(b)(iii) does not violate due process or the separation of powers by affecting judicial impartiality. Like the Lewis Court, we are bound by this Court's decision in Johnson. MCR 7.215(J)(1). Under both Johnson and Lewis, MCL 769.1k(1)(b)(iii) is not facially unconstitutional. Thus, there was no error in the imposition of court costs in this case.
III. CONCLUSION
We affirm for the reasons stated in this opinion.
Tukel, P.J., did not participate.