People of Michigan v. Delson Edward Simmons II ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 10, 2017
Plaintiff-Appellee,
v No. 332890
Wayne Circuit Court
DELSON EDWARD SIMMONS II, LC No. 15-009743-02-FC
Defendant-Appellant.
Before: SAAD, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Defendant appeals by leave granted1 his plea-based conviction of assault with intent to do
great bodily harm less than murder, MCL 750.84. Pursuant to a plea agreement, defendant was
sentenced to 1 to 10 years’ imprisonment. Defendant now appeals the imposition of court costs
as ordered at his sentencing. We remand.
Defendant contends that the trial court was required to provide a factual basis for the
assessment of court costs in the amount of $1,300; thus, remand is required. After review of this
unpreserved issue for plain error affecting defendant’s substantial rights, we agree. See People v
Konopka (On Remand), 309 Mich App 345, 356; 869 NW2d 651 (2015).
The parties agree that MCL 769.1k allowed the trial court to order defendant to pay “any
cost reasonably related to the actual costs incurred by the trial court without separately
calculating those costs involved in the particular case[.]” MCL 769.1k(1)(b)(iii). However, as in
the Konopka case, here, the trial court did not articulate a factual basis for the costs imposed.
Konopka, 309 Mich App at 359. And “without a factual basis for the costs imposed, we cannot
determine whether the costs imposed were reasonably related to the actual costs incurred by the
trial court, as required by MCL 769.1k(1)(b)(iii).” Id. at 359-360. While the prosecution makes
a sound argument that the amount of $1,300 in costs is reasonable in light of the typical costs of
adjudicating such criminal proceedings, as in Konopka, defendant “should be given the
1
People v Simmons, unpublished order of the Court of Appeals, entered June 23, 2016 (Docket
No. 332890).
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opportunity to challenge the reasonableness of the costs imposed.” Id. at 360. Accordingly, this
matter is remanded to the trial court for the purpose of establishing a factual basis for the $1,300
in costs imposed under MCL 769.1(b)(iii), or to adjust that figure as necessary. See id.
Remanded. We do not retain jurisdiction.
/s/ Henry William Saad
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
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