8.8​Costs of a Court-Appointed Attorney

“If a defendant is able to pay part of the cost of a lawyer, the court may require contribution to the cost of providing a lawyer and may establish a plan for collecting the contribution.” MCR 6.005(C). MCL 769.1k(1)(b)(iv) specifically permits a court to impose on a defendant “[t]he expenses of providing legal assistance to the defendant.”

A.​Finding of Guilt Prerequisite to Imposition of Fees

“A court may not impose upon [a] defendant the expenses of providing his legal assistance [under MCL 769.1k(1)(b)(iv)] until [that] defendant is found guilty, enters a plea of guilty, or enters a plea of nolo contendere.” People v Dyer, 497 Mich 863, 863 (2014) (noting that “if defendant withdraws his plea [under MCR 6.310(A)], imposition of attorney fees is not appropriate at [that] time”).

Under MCL 768.34, the court cannot order a defendant to repay the cost of appointed counsel if the prosecution files an order of nolle prosequi. People v Jose, 318 Mich App 290, 296 (2016). “MCL 768.34 precludes a trial court from ordering reimbursement of any costs—including the cost of court-appointed counsel—for a defendant whose prosecution is suspended or abandoned.” Jose, 318 Mich App at 297, 299 (additionally holding that MCR 6.005(C) does not provide authority for the trial court to order reimbursement for the work appointed counsel performed before trial where “[t]he court never determined that defendant was ‘able to pay part of the cost of a lawyer’ and never ‘require[d] contribution’” under MCR 6.005(C)) (second alteration in original).

B.​Factual Findings Must Support Attorney Fees

Trial courts must make factual findings regarding the cost of providing legal services to a defendant in support of attorney fees assessed under MCL 769.1k(1)(b)(iv). People v Lewis, 503 Mich 162, 163-164 (2018) (noting that “the language of MCL 769.1k(1)(b)(iii), which gives trial courts the authority to assess costs without ‘separately calculating those costs involved in the particular case,’ [does not apply] to the attorney-fee provision in [MCL 769.1k(1)(b)(iv)], which authorizes the imposition of expenses for legal assistance to a defendant”).

“[A] trial court cannot impose attorney fees on a defendant without first making findings of fact in support of the amount assessed.” People v Moore, ___ Mich App ___, ___ (2025), citing People v Lewis, 503 Mich 162, 168 (2018). “The Lewis Court announced that a trial court must establish the cost of providing legal services to the specific defendant at issue when assessing attorney fees under MCL 769.1k(1)(b)(iv).” Moore, ___ Mich App at ___ (quotation marks and citation omitted). In Moore, defendant “argue[d] that the trial court failed to make required factual findings on the record before imposing attorney fees, including (1) the cost of providing legal assistance to defendant, (2) whether that cost was satisfied by the MIDCA [Michigan Indigent Defense Counsel Act], and (3) the effect of defendant’s indigency on her ability to pay fees.” Id. at ___. The Court of Appeals concluded that the trial court’s findings were sufficient “because the trial court acknowledged the amount of work the case required and estimated that the cost of providing legal services to defendant was substantially more than the predetermined fee it imposed.” Moore, ___ Mich App at ___. Further, “defendant did not claim indigency at sentencing and offers no evidence to establish that she was or should have been determined to be partially or totally indigent.” Id. at ___. Therefore, “the trial court was not required to address whether defendant’s attorney fees were satisfied by the MIDCA when it imposed them under MCL 769.1k(1)(b)(iv).” Moore, ___ Mich App at ___.

“‘MCL 769.1k allows a trial court to impose fines, costs, and assessments at sentencing.’” People v Goulder, ___ Mich App ___, ___ (2026), quoting People v Godfrey, 349 Mich App 35, 40 (2023). “‘However, . . . without a factual basis for the costs imposed, [the Court] 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).’” Goulder, ___ Mich App at ___, quoting People v Konopka (On Remand), 309 Mich App 345, 359-360 (2015). In Goulder, “[d]efendant argue[d] that the trial court erred at resentencing by imposing the financial assessments it did.” Id. at ___. “[D]efendant’s . . . judgment of sentence reflected the aforementioned incarceration sentence but also ordered defendant to pay . . . $1,292 in attorney’s fees.” Id. at ___. “The amount of $1,292 in attorney fees . . . is the mathematical sum of the $725 in attorney fees imposed at the . . . sentencing [hearing] plus the additional attorney fees of $567 announced at the . . . resentencing [hearing]. Id. at ___ n 2 (quotation marks omitted). “But because the initial $725 attorney-fee assessment was extinguished when defendant’s probation was revoked, there was no longer a base amount upon which to stack the additional $567 at resentencing.” Id. at ___ n 2 (quotation marks and citation omitted). Additionally, “the trial court erred by failing to state the sentence being imposed on the record at the resentencing hearing as required by MCR 6.425(D)(1)(d).” Goulder, ___ Mich App at ___ (quotation marks and citation omitted). At resentencing, “the trial court must . . . explain the factual basis for any court costs and attorney fees.” Id. at ___. “[H]ad the trial court properly established on the record the factual basis for the relevant fees, fines, and costs at the initial sentencing, it would have been permissible for the court, upon resentencing, to reimpose those same financial assessments without restating the factual basis for each individual fee, fine, and cost, provided the court expressly indicated that it was relying on the reasons previously articulated at the original sentencing.” Id. at ___. “But if the trial court elects to impose different or additional fees, fines, and costs at resentencing, or if the court failed to delineate the basis for the prior financial assessments at the original sentencing and nonetheless seeks to reimpose them, the court must explicitly state on the record the grounds for doing so.” Id. at ___.

C.​Defendant’s Ability to Pay

A trial court is not required to analyze a defendant’s ability to pay a court-appointed attorney fee before imposing the fee; it is only required to do so when the fee is actually enforced. People v Jackson, 483 Mich 271, 275 (2009). However, “once an ability-to-pay assessment is triggered, the court must consider whether the defendant remains indigent and whether repayment would cause manifest hardship.” Id. 

“[R]emittance orders of prisoner funds, under MCL 769.1l, generally obviate the need for an ability-to-pay assessment with relation to defendants sentenced to a term of imprisonment because the statute is structured to only take monies from prisoners who are presumed to be nonindigent.” Jackson, 483 Mich at 275.

“‘[W]henever a trial court attempts to enforce its imposition of a fee for a court-appointed attorney under MCL 769.1k, the defendant must be advised of this enforcement action and be given an opportunity to contest the enforcement on the basis of his indigency.’” People v Moore, ___ Mich App ___, ___ (2025), quoting Jackson, 483 Mich at 292. The Jackson Court also held that “trial courts should not entertain defendants’ ability-to-pay-based challenges to the imposition of fees until enforcement of that imposition has begun.” Moore, ___ Mich App at ___ (quotation marks and citation omitted). In this case, “defendant argue[d] the trial court was required to make findings regarding her ability to pay attorney fees.” Id. at ___. “A review of the register of actions indicates that the trial court ha[d] not entered an order to enforce defendant’s payment.” Id. at ___. “Accordingly, the trial court was not required to make findings regarding defendant’s ability to pay when it imposed the $400 attorney fees because there is no constitutionally required ability-to-pay analysis until the fee is actually enforced.” Moore, ___ Mich App at ___ (quotation marks and citation omitted). Therefore, “[d]efendant [was] not entitled to an evidentiary hearing or resentencing in that regard.” Id. at ___.

D.​Reasonableness of the Fee Must be Considered

The trial court erred where it limited an award of attorney fees to the maximum allowed for plea cases under the county’s fee schedule without consideration of “the reasonableness of the fee in relation to the actual services rendered[.]” In re Ujlaky Attorney Fees, 498 Mich 890, 890 (2015). “Although the expenditure of any amount of time beyond that contemplated by the schedule for the typical case does not, ipso facto, warrant extra fees, spending a significant but reasonable number of hours beyond the norm may.” Id. (directing the trial court, on remand, to “either award the requested fees, or articulate on the record its basis for concluding that such fees are not reasonable”).

E.​Contingency Fee Arrangement Impermissible

“[T]he trial court’s policy of not paying [appointed appellate] counsel for time spent in preparing a delayed application for leave to appeal or for preparing [appellate] motions . . . when [the Court of Appeals] ultimately denies leave to appeal ‘for lack of merit in the grounds presented’ or denies relief on the motions constitute[d] an abuse of discretion.” In re Foster Attorney Fees, 317 Mich App 372, 376 (2016). “[A]ttorneys are not allowed to enter into contingency-fee arrangements in criminal matters under the Michigan Rules of Professional Conduct. MRPC 1.5(d). Therefore, no attorney in the state of Michigan could agree to be a court-appointed attorney . . . under [the trial] court’s current policy because to do so would require entering into a contingency-fee arrangement in violation of the attorney’s professional responsibilities.” Foster, 317 Mich App at 377.