Opinion
No. 332735 No. 333375
06-08-2017
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Phillip Edward SHENOSKEY, Defendant–Appellant. People of the State of Michigan, Plaintiff–Appellee, v. Jimmie Earl Crawford, Defendant–Appellant.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Amy C. Clapp, Chief Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Jeanice Dagher-Margosian ) for Jimmie E. Crawford.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Amy C. Clapp, Chief Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Jeanice Dagher-Margosian ) for Jimmie E. Crawford.
Before: Sawyer, P.J., and Murray and Gleicher, JJ.
Per Curiam.In Docket No. 332735, defendant Philip E. Shenoskey pleaded guilty to operating a motor vehicle while intoxicated, third offense, MCL 257.625(9)(c), and was sentenced to 18 months to 5 years in prison. In Docket No. 333375, defendant Jimmie E. Crawford pleaded guilty to possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and was sentenced to two years' probation. Both defendants appeal by leave granted. This Court, on its own motion, consolidated the appeals. We affirm.
Both these cases raise questions of constitutional and statutory interpretation. Constitutional questions are reviewed de novo, People v. Harper, 479 Mich. 599, 610, 739 N.W.2d 523 (2007), as are matters of statutory construction. People v. Kern, 288 Mich.App. 513, 516, 794 N.W.2d 362 (2010). Additionally, none of the issues raised by defendants was properly preserved for appeal, so we review these issues for plain error. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999).
DOCKET NO. 332735
Defendant Shenoskey's sole issue on appeal is that the $68 dollars in costs imposed under MCL 769.1j is an unconstitutional tax that violates the separation of powers, Const. 1963, art. 3, § 2, and also violates Const. 1963, art. 4, § 32. We disagree. MCL 769.1j(1)(a) provides as follows:
Beginning October 1, 2003, if the court orders a person convicted of an offense to pay any combination of a fine, costs, or applicable assessments, the court shall order that the person pay costs of not less than the following amount, as applicable:
(a) $68.00, if the defendant is convicted of a felony.
Defendant Shenoskey initially argues that he was not subject to the imposition of these costs because he was not sentenced to a combination of "a fine, costs, or applicable assessments." We disagree. The trial court imposed a crime victims' rights assessment, court costs, attorney fees and other unspecified costs. Therefore, because a combination of fines, costs, and other assessments were imposed, defendant was subject to MCL 769.1j(1)(a).
We then turn to defendant Shenoskey's primary claim, that MCL 769.1j(1)(a) is unconstitutional. Defendant Shenoskey first argues that the statute violates the separation-of-powers doctrine under Const. 1963, art. 3, § 2. We disagree. We find guidance in this Court's recent decision in People v. Cameron, 319 Mich.App. 215, 900 N.W.2d 658, 2017 WL 1244274 (2017), which considered the same argument with regard to a closely related statute, MCL 769.1k(1)(b)(iii). For the same reasons that Cameron found MCL 769.1k(1)(b)(iii) to be a tax, we conclude that the costs imposed under MCL 769.1j(1)(a) are also a tax. Cameron, 319 Mich.App. at 231–235, 900 N.W.2d 658, also addressed the separation-of-powers issue. We agree with the Court's observation that "even if our Legislature delegated some of its taxing authority to the circuit courts, the Michigan Constitution does not require an absolute separation of powers." Id. at 235. In sum, we conclude that the analysis of the separation-of-powers issue in Cameron applies equally here and, for those reasons, we reject defendant Shenoskey's argument.
Additionally, defendant Shenoskey makes a brief argument that MCL 769.1j(1)(a) also violates the requirement of Const. 1963, art. 4, § 32, that "[e]very law which imposes, continues or revives a tax shall distinctly state the tax." Again, Cameron, 319 Mich.App. at 229–231, 900 N.W.2d 658, considered and rejected this argument. For the same reasons, we do so as well.
Finally, we note that defendant Shenoskey also argues that MCL 769.1j(1)(a) is problematic because it states that the cost imposed shall be "not less than" $68 without providing guidance to the trial court for imposing a greater amount. We need not address this point because in this case the trial court imposed the minimum assessment of $68.
DOCKET NO. 333375
Defendant Crawford raises two challenges to his sentence. First, he argues that the trial court erred by failing to consider his income at the time it imposed the probation oversight fees. We disagree.
MCL 771.3c(1) provides as follows:
The circuit court shall include in each order of probation for a defendant convicted of a crime that the department of corrections shall collect a probation supervision fee of not more than $135.00 multiplied by the number of months of probation ordered, but not more than 60 months. The fee is payable when the probation order is entered, but the fee may be paid in monthly installments if the court approves installment payments for that probationer. In determining the amount of the fee, the court shall consider the probationer's projected income and financial resources. The court shall use the following table of projected monthly income in determining the amount of the fee to be ordered:
Projected Monthly Income Amount of Fee $0-249.99 $0 $250.00-499.99 $10.00 $500.00-749.99 $25.00 $750.00-999.99 $40.00 $1,000 or more 5% of projected monthly income, but not more than $135.00
The court may order a higher amount than indicated by the table, up to the maximum of $135.00 multiplied by the number of months of probation ordered, but not more than 60 months, if the court determines that the probationer has sufficient assets or other financial resources to warrant the higher amount. If the court orders a higher amount, the amount and the reasons for ordering that amount shall be stated in the court order. The fee shall be collected as provided in section 25a of the corrections code of 1953, 1953 PA 232, MCL 791.225a. A person shall not be subject to more than 1 supervision fee at the same time. If a supervision fee is ordered for a person for any month or months during which that person already is subject to a supervision fee, the court shall waive the fee having the shorter remaining duration.
Defendant Crawford was sentenced to two years' probation, and the trial court imposed probation oversight fees of $240, or $10 per month. This would correspond to a projected monthly income of at least $250.00. MCL 771.3c(1). Defendant Crawford's argument that the trial court failed to comply with the statute by not considering his income is flawed. First, the statute does not require the court to consider a defendant's current income, but, rather, his or her projected income. One of the conditions of defendant Crawford's probation is that he obtain employment and maintain employment for at least 30 hours per week. Even at minimum wage, defendant Crawford's projected income would significantly exceed the $250 per month income necessary to justify the probation oversight fees imposed.
Defendant Crawford's second argument is that the MCL 600.4803 provision that imposes a 20% penalty for failure to pay a penalty, fee, or cost within 56 days of when it is due is unconstitutional. MCL 600.4803(1) provides as follows:
A person who fails to pay a penalty, fee, or costs in full within 56 days after that amount is due and owing is subject to a late penalty equal to 20% of the amount owed. The court shall inform a person subject to a penalty, fee, or costs that the late penalty will be applied to any amount that continues to be unpaid 56 days after the amount is due and owing. Penalties, fees, and costs are due and owing at the time they are ordered unless the court directs otherwise. The court shall order a specific date on which the penalties, fees, and costs are due and owing. If the court authorizes delayed or installment payments of a penalty, fee, or costs, the court shall inform the person of the date on which, or time schedule under which, the penalty, fee, or costs, or portion of the penalty, fee, or costs, will be due and owing. A late penalty may be waived by the court upon the request of the person subject to the late penalty.
Defendant Crawford first argues that the 20% rate is usurious. This argument is nonsensical. First, it is a penalty, not interest. Second, even if we were to classify it as interest, usury limits are set by the Legislature and, obviously, in this instance the Legislature set it at 20%. That is, any interest rate set by the Legislature cannot, by definition, be deemed usurious. Defendant Crawford acknowledges that the Legislature has set a variety of different usury limits and interest rates for various purposes. But those limits or rates are not relevant to the issue at hand; rather, they reflect that the Legislature can, and does, set different rates for different purposes.Defendant Crawford further argues that the 20% penalty, imposed "for no reason other than the inability to pay," violates the Equal Protection and Due Process Clauses of the federal and state Constitutions. See U.S. Const., Am. XIV, and Const. 1963, art. 1, § 17. Defendant Crawford relies on Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed. 2d 221 (1983), for the proposition that a defendant cannot be subject to a greater penalty merely because of his or her inability to pay a fine or cost imposed by the court. But this concern is addressed by the last sentence in MCL 600.4803(1), which grants the trial court the authority to waive the penalty. Thus, a mechanism is in place to excuse the imposition of the penalty for a defendant who is unable, through no fault of his or her own, to pay the fine, fee, or cost upon which the 20% penalty is being imposed. Therefore, there is no due-process violation.
Defendant also relies on the U.S. Const., Am. V. But that amendment, of course, only applies to the federal government. The Due Process Clause of the Fourteenth Amendment is the operative provision applying to the states.
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As for defendant Crawford's equal-protection argument, this argument is frivolous. The statute does not treat any person subject to the penalty different than any other person. That is, all persons who fail to pay the fine, fee, or cost within 56 days are subject to the 20% penalty. All are treated the same.
For these reasons, we conclude that neither defendant has demonstrated that the trial courts committed plain error in the issues presented in their respective appeals.
Affirmed.
Sawyer, P.J., and Murray and Gleicher, JJ., concurred.