1.37Costs¹

MCL 769.1k(1)(b)(ii) provides that, at the time of sentencing or a delay in sentencing or entry of a deferred judgment of guilt, a court may impose “[a]ny cost in addition to the minimum state cost^[2] set forth in [MCL 769.1k(1)(a)[]” on a defendant convicted by plea (guilty or nolo contendere) or found guilty by the court after a hearing or trial. Effective October 17, 2014, 2014 PA 352 amended MCL 769.1k in response to the Michigan Supreme Court’s holding in People v Cunningham (Cunningham II), 496 Mich 145 (2014), rev’g 301 Mich App 218 (2013) and overruling People v Sanders (Robert) (After Remand), 298 Mich App 105 (2012), and People v Sanders (Robert), 296 Mich App 710 (2012).³ In Cunningham II, the Court held that MCL 769.1k(1)(b)— which, at the time, provided for the imposition of “[a]ny cost in addition to the minimum state cost”—did “not provide courts with the independent authority to impose ‘any cost[;]’” rather, it “provide[d] courts with the authority to impose only those costs that the Legislature has separately authorized by statute.” Cunningham II, 496 Mich at 147, 158 (concluding that “[t]he circuit court erred when it relied on [former] MCL 769.1k(1)(b)(ii) as independent authority to impose $1,000 in court costs[]”). 2014 PA 352, in addition to making other revisions to MCL 769.1k, added MCL 769.1k(1)(b)(iii) to provide for the imposition of “any cost reasonably related to the actual costs incurred by the trial court[.]” The amendments effectuated by 2014 PA 352 “appl[y] to all fines, costs, and assessments ordered or assessed under . . . MCL 769.1k[] before June 18, 2014, and after [October 17, 2014].” 2014 PA 352, enacting section 1 (emphasis supplied).

“MCL 769.1k(1)(b)(iii) independently authorizes the imposition of costs in addition to those costs authorized by the statute for the sentencing offense[,]” and “[a] trial court possesses the authority, pursuant to MCL 769.1k, as amended by 2014 PA 352, to order court costs[.]” People v Konopka, 309 Mich App 345, 350, 358 (2015). “However, although the costs imposed . . . need not be separately calculated, . . . the trial court [must] . . . establish a factual basis[]” demonstrating that “the court costs imposed [are] ‘reasonably related to the actual costs incurred by the trial court[.]’” Konopka, 309 Mich App at 359, quoting MCL 769.1k(1)(b)(iii).

MCL 769.34(6) addresses the sentencing guidelines and the duties of the court when sentencing, and it generally authorizes the court to order court costs (“As part of the sentence, the court may also order the defendant to pay any combination of a fine, costs, or applicable assessments.”). However, “MCL 769.34(6) allows courts to impose only those costs or fines that the Legislature has separately authorized by statute[]” and “does not provide courts with the independent authority to impose any fine or cost.” Cunningham II, 496 Mich at 158 n 11.⁴