PEOPLE OF MI V LAMONT BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 13, 2008
Plaintiff-Appellee,
v
LAMONT BROWN, a/k/a LAMONDO BROWN,
No. 280079
Wayne Circuit Court
LC No. 05-010707-01
Defendant-Appellant.
Before: O’Connell, P.J., and Smolenski and Gleicher, JJ.
PER CURIAM.
After a jury trial, defendant was convicted of possession of less than 25 grams of cocaine,
MCL 333.7403(2)(a)(v). The trial court sentenced defendant to five years’ probation, with the
first 250 days to be served in jail, and ordered him to pay costs and attorney fees. Defendant
appeals as of right. We affirm defendant’s conviction and probationary sentence, but vacate the
order for reimbursement of attorney fees and remand for further proceedings.
Defendant contends on appeal solely that the trial court erred in assessing court costs and
attorney fees without first determining that he had the ability to pay in accordance with People v
Dunbar, 264 Mich App 240, 251-256; 690 NW2d 476 (2004). Because defendant failed to
preserve this issue by raising it at the time of his sentencing, we review his argument only for
any plain error affecting his substantial rights.1 People v Carines, 460 Mich 750, 763-764; 597
NW2d 130 (1999).
The trial court has express authority to assess any costs at sentencing pursuant to MCL
769.1k(1)(b)(ii). A defendant’s ability to pay, however, only becomes a consideration when the
court “impos[es] a reimbursement requirement, unlike fines and costs.” Dunbar, supra at 255
(emphasis added). Consequently, defendant has failed to establish plain error with respect to the
trial court’s assessment of court costs.
1
We reject plaintiff’s argument that defendant waived review of this issue because his signature
on the order of probation constituted his acknowledgement that he received a copy of the order
and that he understood and agreed to comply with the order. Defendant’s acknowledgement that
he understood the order of probation and agreed to comply with it does not necessarily signify
that he approved or agreed with all the conditions or terms contained therein.
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A defendant generally has an obligation to reimburse the public cost of appointed
counsel. MCR 6.005(C); People v Nowicki, 213 Mich App 383, 387-388; 539 NW2d 590
(1995). Furthermore, MCL 769.1k(1)(b)(iii) vests the trial court with authority to assess the cost
of court-appointed counsel to the defendant. Although the court need not make a specific finding
regarding the defendant’s ability to pay absent a specific objection to reimbursement, the court
“does need to provide some indication of consideration, such as noting that it reviewed the
financial and employment sections of the defendant’s presentence investigation report or, even
more generally, a statement that it considered the defendant’s ability to pay.” Dunbar, supra at
254-255. Where, as here, the record does not reflect “that the court recognized that defendant’s
ability to pay needed to be considered when imposing a reimbursement requirement,” remand is
required so the court may “reconsider its reimbursement order in light of defendant’s current and
future financial circumstances.” Id. at 255.
In summary, we affirm the trial court’s imposition of court costs, but vacate the court’s
order for reimbursement of attorney fees, and remand for reconsideration of that issue in light of
defendant’s current and future financial circumstances and the relevant principles set forth in
Dunbar.
Affirmed in part, vacated in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Michael R. Smolenski
/s/ Elizabeth L. Gleicher
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