People of Michigan v. Dale Anthony Sherrill

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

June 15, 2023

Plaintiff-Appellee,

v No. 358371

Macomb Circuit Court

DALE ANTHONY SHERRILL, LC No. 2019-002487-FC

Defendant-Appellant.

Before: SWARTZLE, P.J., and CAVANAGH and LETICA, JJ.

PER CURIAM.

Defendant appeals by right his jury trial convictions of first-degree criminal sexual conduct

(CSC-I), MCL 750.520b(1)(a) and (2)(b) (victim less than 13 years of age and defendant more

than 17 years of age), three counts of second-degree criminal sexual conduct (CSC-II), MCL

750.520c(1)(a) and (2)(b) (victim less than 13 years of age and defendant more than 17 years of

age), two counts of capturing or distributing an image of an unclothed person, MCL 750.539j(1)(b)

and (2)(b), eavesdropping/installing a device, MCL 750.539d(1)(a) and (3)(a)(i), and aggravated

indecent exposure, MCL 750.335a(1) and (2)(b).1 The trial court sentenced defendant to 25 to 40

years’ imprisonment for his CSC-I conviction, 57 to 180 months’ imprisonment for each of his

CSC-II convictions, 23 to 60 months’ imprisonment for both of his capturing or distributing an

image of an unclothed person convictions, 12 to 24 months’ imprisonment for his

eavesdropping/installing a device convictions, and 11 to 24 months’ imprisonment for his

aggravated indecent exposure conviction, with the sentences to be served concurrently, and 329

days’ jail credit. It also ordered defendant to pay $544 in state costs, $130 to the crime victims

fund, $600 in court costs, and $4,425 for his public defender. On appeal, defendant argues that (1)

his trial counsel was ineffective by failing to adequately impeach the credibility of one of the

victims at trial, (2) the trial court committed structural error requiring reversal by impaneling an

“anonymous jury,” (3) the statute allowing trial courts to impose court costs on defendants, MCL

1

Defendant was acquitted of one count of CSC-II (victim less than 13 years of age and defendant

more than 17 years of age).

-1-

769.1k(1)(b)(iii), is unconstitutional, and (4) the fees and costs defendant was ordered to pay

violate the Michigan and United States Constitutions’ Excessive Fines Clauses. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In this case, defendant was accused of sexually abusing two victims, his then-step daughter

AM and AM’s childhood best friend, CS. From 2008 to 2010, AM lived in a house in Richmond

with her mother, defendant, and her half-sister, who is the biological daughter of defendant and

her mother. From 2008 to 2010, AM’s and CS’s families lived next door to each other. During

that time, AM and CS played together almost every day and CS regularly spent the night at AM’s

house.

CS alleged that defendant sexually abused her four times when CS was between the ages

of six and eight years old. In the first instance of abuse, defendant was seated in a recliner in the

living room in his home, and CS was sitting in his lap. No one else was in the room. Defendant

began rubbing CS’s thigh with his left hand, and then moved his hand up and rubbed CS’s genitals

over CS’s clothes. CS climbed off defendant’s lap and went to find AM to play. When the second

instance occurred, CS was spending the night at AM’s house and was sleeping on the floor next to

AM’s bed. CS woke up and defendant was rubbing her genitals over her clothes. In the third

instance, CS was again sleeping on the floor next to AM’s bed. CS awoke and defendant was

rubbing CS’s anus over her clothes. After both of the nighttime incidents, CS began crying, called

her parents, and went home. In the fourth and final instance CS alleged, CS was riding on

defendant’s shoulders in the living room of defendant’s house and no one else was in the room.

CS alleged that, while she was on defendant’s shoulders, defendant rubbed her thigh and then

moved his hand up and rubbed her genitals over her clothes. CS asked defendant to put her down,

and defendant did so. CS did not tell anyone about the abuse until several years later. In 2010 or

2011, AM moved with her family to Memphis, and CS moved with her family to Deckerville in

2011. CS and AM had very little contact after the age of eight when the two families moved apart.

AM was 12 years old when each of the incidents underlying defendant’s convictions

relating to AM happened. The charges against defendant stemmed from four incidents with AM,

each of which occurred while they were living in the same house together in Memphis. AM did

not remember the chronological order of the incidents. In the incident for which defendant was

convicted of CSC-I, AM was taking a nap in defendant and her mother’s bed and lying on her side.

Defendant laid down behind AM, moved his hand underneath AM’s underwear, and digitally

penetrated her. Defendant’s convictions of one count of capturing or distributing an image of an

unclothed person and one count of eavesdropping/installing a device stemmed from defendant

hiding a trail camera, which is a motion activated camera used for hunting, inside AM’s bedroom.

AM walked into her bedroom after taking a shower, wearing only in a towel, and discovered the

trail camera on a shelf on her bedroom wall when she saw a red blinking light on the camera. AM

told her mother that the trail camera was in her bedroom, her mother confronted defendant, and

defendant removed the camera. In the incident for which defendant was convicted of one count

of capturing or distributing an image of an unclothed person, defendant took photographs of AM

while she was taking a shower. AM was washing her hair when she saw a camera flash. AM

turned around and could see defendant’s hair peeking out of the open bathroom door, which AM

had closed before beginning her shower. Defendant took one or two more photographs and left

before AM could confront him. In the incident for which defendant was convicted of aggravated

-2-

indecent exposure, AM awoke during the night and defendant was lying on the floor next to her

bed. AM testified that there were multiple occasions that defendant slept on her bedroom floor.

In this instance, AM saw that defendant’s genitals were exposed and he was fondling himself.

In February 2016, defendant and AM’s mother were in divorce proceedings, and AM’s

mother moved herself, AM, and her and defendant’s daughter out of the house they shared with

defendant. In the fall of 2018, CS learned that a family friend’s eight-year-old stepdaughter had

been sexually assaulted and the eight-year-old girl had told her parents right away. CS began to

feel guilty about having never told anyone about the abuse she suffered. In mid-December 2018,

CS told her parents that defendant had abused her, and her parents reported the abuse to the police.

On January 7, 2019, CS was interviewed at the Macomb County Care House, which is a facility

for child sex abuse victims to report crimes, and CS recounted the four incidents that formed the

basis of the charges against defendant. After CS’s Care House interview, Child Protective Services

(CPS) went to the house of AM’s mother and AM to speak with AM’s mother about CS’s report,

and AM overheard the conversation from another room. AM had a brief conversation with her

mother after CPS left, became upset, and left the house for a few hours. When AM came home,

she told her mother that defendant had abused her without providing much detail. The next day,

her mother reported what AM had told her to the police. On January 14, 2019, AM was

interviewed at the Care House and told the interviewer about the numerous incidents in which

defendant sexually abused her, not all of which resulted in charges against defendant. Defendant

was arraigned on the charges in this case on August 8, 2019.

Defendant’s trial began on June 21, 2021. Relevant to this appeal, the trial court instructed

the potential jurors to not give their names on the record and jurors were referred to by juror

number, rather than by name, through the whole trial. Defendant testified on his own behalf.

Defendant denied ever having inappropriately touched CS, although he acknowledged he would

sometimes look into AM’s room during the night to check on AM and CS. Defendant denied

touching AM in his bedroom in the Memphis house, ever having slept in AM’s room or exposing

himself, and taking photos of AM in the shower. However, defendant admitted that he put the trail

camera in AM’s room. Defendant explained that AM would get in trouble for staying up late at

night in bed using her phone or a tablet, and defendant put the trail camera into her room to catch

her using devices at night. Defendant believed that AM was making false allegations against him

because he was a strict disciplinarian and that he had treated her mother badly in fights leading up

to their divorce. Defendant similarly believed that CS was making false allegations because

defendant would discipline CS when she was playing with AM.

The jury deliberated for less than three hours and convicted defendant on each charge

except the CSC-II charge based on CS’s allegations that defendant touched her while she was

riding on his shoulders. The trial court sentenced defendant to the statutory minimum sentence of

25 to 40 years’ imprisonment for defendant’s CSC-I conviction, with sentences for his other seven

convictions to be served concurrently. The trial court also sentenced defendant to pay $544 for

state minimum costs, $600 for court costs, $4,525 for attorney fees, and a $130 crime victim rights

assessment.

Defendant appealed by right in this Court his judgment of sentence. Defendant

subsequently filed in the trial court a motion to correct an invalid sentence. Defendant argued that

the portions of his sentence that requires him to pay state minimum costs, crime victim rights costs,

-3-

court costs, and public defender costs violate his federal and state constitutional due-process rights.

The trial court denied defendant’s motion regarding court costs and attorney fees. Thereafter,

defendant moved in this Court for a remand to the trial court to hold a Ginther2 hearing regarding

whether defendant received effective assistance of counsel. Defendant argued that his trial counsel

was ineffective by failing to impeach AM on the basis of her character for untruthfulness and

inconsistencies between statements AM made in her Care House interview, her preliminary

examination, and trial testimony. This Court entered an order remanding this case to the trial court

for a Ginther hearing.3

The only witness to testify at the Ginther hearing was defendant’s trial counsel. Trial

counsel testified that he impeached AM directly on the inconsistencies between her preliminary

examination testimony and her trial testimony. According to trial counsel, he had considered that

there were three or four minor inconsistencies between AM’s statements made in her Care House

interview and AM’s trial testimony. Trial counsel testified that he had always intended to impeach

AM regarding her Care House interview, and he planned to do so by questioning the officer in

charge of the case, Detective Julia Frantz, who observed the interview. However, trial counsel

was unable to carry out that strategy because Detective Frantz testified that she was not familiar

with the transcript from AM’s Care House interview. Trial counsel abandoned his attempt to elicit

evidence of the Care House interview transcripts. Trial counsel testified that he did not find

another way to use the Care House interview transcript because he would have opened the door to

allowing the prosecution to recall AM as a witness and impeaching AM, who was still a minor at

the time, on minor differences between her statement and testimony, which may have left a

negative impression with the jury. Also, AM asked the interviewer at the end of her Care House

interview whether she had provided enough information and whether the interviewer believed her.

Trial counsel explained that he did not pursue using AM’s questions because he did not believe

that doing so would have been impactful enough that the jury would have concluded AM was

making up the allegations and the better strategy was to focus on the inconsistencies in AM’s

preliminary examination and trial testimony. The trial court denied defendant’s motion for a new

trial and concluded that defendant received effective assistance of counsel at trial. The trial court

reasoned that defendant’s trial counsel had a clear strategy to impeach AM’s testimony to the

maximum extent possible while minimizing the risk that AM would be recalled as a witness, and

the trial court would not second-guess that strategy. Following the remand, defendant filed a

supplemental brief with this Court.

II. STANDARDS OF REVIEW

“A claim of ineffective assistance of counsel presents a mixed question of fact and

constitutional law.” People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). Factual

findings are reviewed for clear error and questions of constitutional law are reviewed de novo. Id.

“A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is

left with a definite and firm conviction that a mistake has been made.” People v Antwine, 293

2

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

3

People v Sherrill, unpublished order of the Court of Appeals, entered August 10, 2022 (Docket

No. 358371).

-4-

Mich App 192, 194; 809 NW2d 439 (2011). Whether a statute is unconstitutional is a question of

law that this Court reviews de novo. People v Perkins, 280 Mich App 244, 248; 760 NW2d 669

(2008). “Statutes are presumed to be constitutional, and a statute is to be construed in a

constitutional manner unless the unconstitutionality of the statute is facially obvious.” People v

Hrlic, 277 Mich App 260, 262; 744 NW2d 221 (2007).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that he was denied the effective assistance of counsel and is entitled to a

new trial on that basis. We disagree.

“The right to counsel guaranteed by the United States and Michigan constitutions, US

Const Am VI; Const 1963, art 1, § 20, includes the right to the effective assistance of counsel.”

People v Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010). “Effective assistance of counsel

is presumed and defendant bears the burden of proving otherwise.” People v Petri, 279 Mich App

407, 410; 760 NW2d 882 (2008). “To establish ineffective assistance of counsel, defendant must

first show that (1) his trial counsel’s performance fell below an objective standard of

reasonableness under the prevailing professional norms, and (2) there is a reasonable probability

that, but for counsel’s error, the result of the proceedings would have been different.” People v

Uphaus, 278 Mich App 174, 185; 748 NW2d 899 (2008). Regarding the first prong of the two-

part test, a defendant must establish the factual predicate of his ineffective assistance of counsel

claim. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). Trial counsel’s performance does

not fall below an objective standard of reasonableness when this Court can conceive of a legitimate

reason for counsel’s trial strategy. People v Clark, 330 Mich App 392, 427; 948 NW2d 604 (2019).

However, “a court cannot insulate the review of counsel’s performance by calling it trial strategy.”

People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). Regarding the second prong,

under which a defendant must show his counsel’s deficient performance prejudiced him, “[a]

reasonable probability need not rise to the level of making it more likely than not that the outcome

would have been different.” People v Grant, 470 Mich 477, 486; 684 NW2d 686 (2004). “A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” People

v Chenault, 495 Mich 142, 159 n 10; 845 NW2d 731 (2014).

Defendant argues that his trial counsel’s performance fell below an objective standard of

reasonableness because trial counsel did not elicit testimony on a number of issues, all of which

relate to impeaching AM’s credibility as a witness using statements AM and CS made in their Care

House interviews or to police. First, defendant argues that his trial counsel should have impeached

AM’s credibility on the basis that AM had a reputation for untruthfulness. The credibility of a

witness generally refers to whether the witness’s testimony is worthy of belief. People v Lukity,

460 Mich 484, 490; 596 NW2d 607 (1999). A witness’s character for truthfulness is an aspect of

credibility. Id. Under MRE 608(a):

The credibility of a witness may be attacked or supported by evidence in the form

of opinion or reputation, but subject to these limitations: (1) the evidence may refer

only to character for truthfulness or untruthfulness, and (2) evidence of truthful

character is admissible only after the character of the witness for truthfulness has

been attacked by opinion or reputation evidence or otherwise.

-5-

Defendant argues that his trial counsel should have attacked AM’s credibility by questioning CS

about her Care House statement that AM stretched the truth “a lot” and the statement in Detective

Frantz’s police report that CS said AM had a habit of making things up.

Defendant has not established the factual predicate of his claim regarding AM’s reputation

for untruthfulness. Defendant’s argument that AM had a reputation for untruthfulness relies only

on CS’s Care House statement and Detective Frantz’s police report, and it is not clear from the

excerpt of the police report in the record whether CS made a statement to Detective Frantz

separately from CS’s Care House interview. CS’s Care House statement about AM’s reputation

for untruthfulness referred to the time that CS and AM were between the ages of about six and

eight, and her statement referred to an incident in which defendant allegedly put his genitals near

CS’s face while she was sleeping, conduct for which defendant was not charged. CS and AM

agreed that the two had very little contact after the age of eight. CS and AM did not go to school

together after that age. AM was 12 years old when each of the incidents underlying defendant’s

convictions relating to AM happened. AM was 16 years old when she came forward with her

allegations against defendant and gave her Care House statements, and AM was 18 years old when

she testified at defendant’s trial. Defendant has not brought forward any evidence that AM had a

reputation for untruthfulness after the age of eight or at any time relevant to defendant’s

convictions for his conduct relating to AM. Without any evidence regarding AM’s reputation for

untruthfulness at any relevant time, defendant has failed to show that his trial counsel’s

performance fell below an objective standard of reasonableness by not impeaching AM’s

credibility on the basis of her reputation for untruthfulness.

Next, defendant argues that his trial counsel should have impeached AM on the basis of

inconsistencies between her Care House statements, her preliminary examination testimony, and

her trial testimony. Defendant has identified the specific inconsistencies that he believes his trial

counsel should have pursued. At trial, AM testified that she was definitely in seventh grade when

defendant touched her, but, in her Care House interview, AM said that she was either in seventh

or eighth grade. Next, AM said in her Care House interview that defendant left the room first after

the assault and she finished her nap, at the preliminary examination AM testified that she left the

room first after the assault, and at trial AM testified that defendant left the room first and AM

zipped up and buttoned her pants and then left the room. Regarding defendant’s aggravated

indecent exposure conviction, AM testified at trial that she saw defendant fondling his exposed

genitals, but, during her Care House interview, AM said that defendant’s genitals were exposed

without mentioning defendant was fondling them. Also, defendant argues that his trial counsel

should have elicited testimony regarding AM’s questions at the end of her Care House interview,

which were transcribed as “Do [yo]u believe me?” and “Do [yo]u have enough?” and that

defendant’s trial counsel should have called AM’s Care House interviewer to testify regarding the

interviewer’s alternate hypotheses for the crimes, which were defendant was the wrong suspect

and AM was attention-seeking.

“Decisions regarding whether to call or question witnesses are presumed to be matters of

trial strategy.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). A claim of

ineffective assistance based on such decisions requires that a defendant show his counsel’s

performance fell below an objective standard of reasonableness and there is a reasonable

probability that, but for counsel’s deficient performance, the outcome would have been different.

See People v Jurewicz, 506 Mich 914; 948 NW2d 448 (2020), quoting Trakhtenberg, 493 Mich at

-6-

51. Defendant’s trial counsel testified at the Ginther hearing that he planned to introduce evidence

of AM’s inconsistent Care House statements by eliciting testimony about the statements from

Detective Frantz, who watched the interview, but he was not able to do so because Detective Frantz

testified that she had no knowledge of the Care House interview transcript. Defendant argues that

after his trial counsel was unable to use extrinsic evidence of AM’s inconsistent statements through

Detective Frantz, trial counsel’s trial strategy fell below an objective standard of reasonableness

because counsel did not recall AM as a witness to impeach her with the Care House interview

transcript.

Defendant’s trial counsel explained that he did not pursue the inconsistencies between

AM’s Care House statement and her testimony for several reasons. Trial counsel did not believe

the differences between AM’s Care House statement and her testimony were meaningful enough

to undermine AM’s credibility. Trial counsel did not believe that AM’s questions regarding

whether she had provided enough information or whether the Care House interviewer believed her

were enough to sway the jury regarding AM’s credibility and he thought that attempting to

impeach AM on the basis of minor details may have left a negative impression on the jury. Also,

trial counsel testified that he did not want to give the prosecution another chance to question AM.

Trial counsel’s decisions regarding the calling and questioning of witnesses were

objectively reasonable. A reviewing court is in a uniquely poor position to question trial counsel’s

strategy for impeaching the testimony of victims when a defendant is facing criminal sexual

conduct charges. This Court has no ability to assess the victims’ demeanor during their testimony

or the jury’s reaction to their testimony. Trial counsel’s decision to forgo questioning AM about

the inconsistency between her Care House statement and trial testimony regarding the sexual

assault was not unreasonable because trial counsel impeached AM on the inconsistency in her

preliminary examination testimony, and AM’s Care House statement was more similar to her trial

testimony than to her preliminary examination testimony. The other differences between AM’s

Care House statements and her trial testimony were minor and would have been easily explainable.

AM said in her Care House interview that she had tried to block the incidents out of her memory

and was still trying to make sense of her memories during the interview.

Further, to call as a witness the Care House interviewer to testify regarding whether she

believed AM would have been a risky strategy. There is nothing in the record to suggest that the

interviewer did not believe AM, or that the interviewer’s alternate hypotheses—that AM may be

attention-seeking and that defendant may have been the wrong suspect—were given any serious

weight. But, more importantly, it would have been improper for defense counsel to ask the forensic

interviewer whether she believed what AM told her. See People v Peterson, 450 Mich 349, 352;

537 NW2d 857, amended 450 Mich 1212 (1995) (“(1) an expert may not testify that the sexual

abuse occurred, (2) an expert may not vouch for the veracity of a victim, and (3) an expert may

not testify whether the defendant is guilty.”) And, more generally, it is improper for a witness to

comment or provide an opinion on the credibility of another witness; the issue of credibility is for

the trier of fact. See People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985); see also People v

Douglas, 496 Mich 557, 583; 852 NW2d 587 (2014) (quotation marks and citations omitted).

Ultimately, trial counsel was in the best position to determine whose and what testimony would

best sway the jury, and counsel offered principled explanations for his strategy. Trial counsel’s

strategy for calling and questioning witnesses did not fall below an objective standard of

reasonableness.

-7-

Even if defendant could show that his trial counsel’s performance fell below an objective

standard of reasonableness, defendant cannot show that he was prejudiced to a point that would

undermine confidence in the jury’s verdict. Defendant relies heavily on the Supreme Court’s

analysis in Trakhtenberg, 493 Mich at 52-58. In that case, the defendant was accused of touching

the genitals of his eight-year-old daughter and forcing his daughter to touch his genitals. Id. at 43.

Although the failure of the defendant’s trial counsel to fully impeach witnesses was one factor of

the Court’s analysis, the Court’s overall conclusion that the defendant did not receive effective

assistance of counsel was based on trial counsel’s failure to investigate possible defenses. Id. at

58. The Court identified a number of specific actions by trial counsel that fell below an objective

standard of reasonableness. First, defense counsel encouraged the defendant to waive his

preliminary examination, leaving counsel without any information going into trial on the factual

predicates of each of the charges and the prosecution’s theory of guilt. Id. at 53. Second, defense

counsel failed to interview key witnesses, which would have provided counsel with important

context to presenting a defense, such as the facts that the victim’s mother had animosity toward

the defendant over divorce proceedings; an expert on defending criminal sexual conduct cases

involving minors opined that the fact that the victim was interviewed on the allegations multiple

times could lead her to believe that something happened that did not; and the defendant had

previously applied ointment to the victim’s genitals for medical purposes. Id. at 53-58. Third,

defense counsel testified that, if she had learned that information, she would have used the

information to impeach key witnesses and develop a record on how subjecting the victim to

multiple interviews could lead her to believe something happened that did not. Id. at 54-55. The

Court concluded the defendant was prejudiced because there were multiple avenues that counsel

could have pursued, each of which would have tipped the scales of credibility in favor of the

defendant, and those omissions were severe enough to undermine confidence in the jury’s verdict.

Id. at 58.

This case is distinguishable from Trakhtenberg. In this case, defendant does not argue that

there is information defense counsel should have uncovered through investigation that would have

strengthened his defense at trial. Defendant argues that his trial counsel did not make the best use

of the information that counsel had. However, the strategies defendant argues on appeal that his

trial counsel should have employed would not have benefited defendant’s defense. Regarding

AM’s reputation for untruthfulness, defendant’s theory of prejudice is not supported by the facts

of this case. Defendant’s trial counsel’s strategy was to seek acquittal on all the charges against

defendant on the basis that defendant’s testimony was more credible than AM’s and CS’s

testimony. To attack AM’s credibility through CS’s testimony, defendant would have been asking

the jury to find that CS was credible regarding AM’s character for untruthfulness, but that CS’s

testimony was not credible regarding her own allegations against defendant. It does not make

sense that CS would make such serious false allegations against defendant and then undermine the

credibility of AM, whose testimony would support that CS was telling the truth. Additionally, the

sole allegation of AM’s character for untruthfulness is in regards to AM telling CS, when the two

were between the ages of six and eight years old, that defendant put his genitals in CS’s face while

she was sleeping. Although CS had doubts about whether AM told her the truth about the incident,

a jury would likely be more inclined to believe that defendant had put his genitals near CS’s face

because that behavior is consistent with AM’s allegations regarding the aggravated indecent

exposure charge against defendant. Trial counsel’s decision to not pursue CS’s statement

regarding AM’s habit of stretching the truth as a child does not undermine confidence in the

outcome of the trial.

-8-

Trial counsel’s decision to not impeach AM regarding the inconsistencies between AM’s

Care House interview and testimony likewise did not prejudice defendant. Although the details

defendant cherry-picks from the Care House interviews would tend to undermine AM’s credibility,

the prosecution would have been allowed to question AM and CS on their statements to provide

context to the details defendant argues his trial counsel should have pursued. See Lukity, 460 Mich

at 498-499. “A prosecutor may fairly respond to an issue raised by the defendant.” People v

Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008). Also, when testifying, defendant made

a blanket denial that he had ever touched AM. By doing so, defendant opened the door to rebuttal

testimony on instances of related, uncharged conduct offered to discredit defendant’s testimony.

See People v Dixon-Bey, 321 Mich App 490, 519 n 6; 909 NW2d 458 (2017).

Unlike the situation in Trakhtenberg in which the additional information would have been

exculpatory, AM’s and CS’s Care House interview statements would have shown that there were

numerous allegations of criminal conduct that defendant was not charged for. In her Care House

interview, AM did not only allege the conduct for which defendant was charged. AM described

abuse that was ongoing from the age of four until AM was 12 or 13. AM stated that there were

numerous instances that defendant touched her, but that she could only remember some of them

with particularity. AM described two specific instances in which defendant touched her and an

instance when defendant penetrated her. The prosecution did not charge defendant with crimes

related to any of these incidents. Put into the context of the interview, AM’s questions about

whether she had provided enough information and the interviewer believed her suggest that AM

was trying to provide as much information as possible and could not remember many more specific

situations when defendant abused her. Therefore, if defendant’s trial counsel had pursued using

AM’s and CS’s Care House statements for purposes of impeachment, counsel would have opened

the door for the prosecution to elicit testimony that would have been highly prejudicial to

defendant. Defendant was not prejudiced by his trial counsel’s decision to not impeach AM with

the strategies defendant identifies on appeal.

Defendant has not established either that his trial counsel’s performance fell below an

objective standard of reasonableness or that he suffered prejudice. Accordingly, defendant’s

ineffective assistance of counsel claims fail.

IV. ANONYMOUS JURY

Defendant argues that the trial court committed structural error requiring reversal of his

convictions because he was tried before an anonymous jury. We disagree.

To preserve a challenge to the trial court’s decision to refer to jurors by number rather than

by name, a defendant must object to that decision in the trial court. People v Hanks, 276 Mich

App 91, 92; 740 NW2d 530 (2007). Defendant did not preserve this issue for appellate review by

objecting in the trial court to the trial court’s decision to refer to jurors by number. An unpreserved

issue is reviewed for plain error affecting substantial rights. Id. To establish plain error, a

defendant must show that the “1) error must have occurred, 2) the error was plain, i.e., clear or

obvious, 3) and the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763;

597 NW2d 130 (1999). “Reversal is warranted only when the plain, forfeited error resulted in the

conviction of an actually innocent defendant or when an error seriously affected the fairness,

-9-

integrity or public reputation of judicial proceedings independent of the defendant’s innocence.”

Id.

A case is tried before an “anonymous jury” when certain biographical information about

the jurors is withheld from the parties, typically to protect the jurors’ physical safety from those

who would use violence to influence the trial or to avoid public harassment of the jurors. People

v Williams, 241 Mich App 519, 522; 616 NW2d 710 (2000). The withholding of biographical

information about jurors implicates two rights of the defendant: the right to engage in meaningful

voir dire of the jury and the right to be presumed innocent. Hanks, 276 Mich App at 93. “In order

to successfully challenge the use of an ‘anonymous jury,’ the record must reflect that the parties

have had information withheld from them, thus preventing meaningful voir dire, or that the

presumption of innocence has been compromised.” Williams, 241 Mich App at 523.

Defendant argues that he was unconstitutionally tried before an anonymous jury because

the jurors were referred to only by number and their names were never read into the record at trial.

This Court has held that when jurors are referred to only by number, and not by name, a defendant

must show that he was prejudiced in order to show his due-process rights were violated. Williams,

241 Mich App at 525. In Williams, the jurors were referred to by number during the trial, but the

defendant knew the identities of the jurors because he had access to their juror questionnaires. Id.

at 523-524. This Court determined that there was nothing from the record to indicate the

defendant’s ability to fully engage in voir dire was compromised. Id. at 524. This Court also

concluded that there was no indication that the defendant’s presumption of innocence was

undermined because there was no evidence that the jurors perceived there was anything unusual

about being referred to by number rather than by name. Id. Therefore, this Court held that the

defendant was not entitled to a new trial because the defendant had not shown that he had been

prejudiced. Id. at 525. This Court explained that the exclusive use of juror numbers at trial makes

the jury anonymous in “the most literal sense,” but the exclusive use of juror numbers does not,

on its own, fall within the legal definition of an anonymous jury. Id. at 523.

Similarly, in Hanks, the jurors were referred to by number during the trial, but the defendant

had access to the jurors’ biographical information through the juror questionnaires. Hanks, 276

Mich App at 94. Applying the same reasoning as the Williams Court, this Court concluded that

the defendant was not prejudiced by the use of the jurors’ numbers because the defendant had not

shown an inability to engage in voir dire or that the jurors saw any significance to the use of

numbers rather than their names. Id. The Hanks Court also stated that it was not persuaded that

Williams was wrongly decided on the basis of a subsequent decision of the Wisconsin Supreme

Court, in State v Tucker, 259 Wis 2d 484, 501-502; 657 NW2d 374 (2003), which defendant also

relies on in this case, that held a trial court may not refer to jurors only by number without justifying

the anonymity of the jurors on the basis of actual danger posed to the jurors. Hanks, 276 Mich

App at 95.

Although criminal defendants routinely argue on appeal in this Court that their

constitutional due-process rights were violated by being tried before an allegedly anonymous jury,

this Court’s decisions in Williams and Hanks remain the only two published opinions of this Court

to address the issue. Hanks, 276 Mich App at 95; Williams, 241 Mich App at 525. Since those

two cases were decided, this Court has consistently applied the holdings that the exclusive use of

numbers to identify jurors at trial does not render a jury anonymous when the defendant has access

-10-

to the jurors’ questionnaires and there is no showing that the defendant’s presumption of innocence

was undermined.

Defendant does not argue that the withholding of jurors’ names from the trial court record

prejudiced him in a unique way under the facts of this case, and defendant does not argue that he

was not able to effectively engage in voir dire. Rather, defendant raises the legal argument that

anytime a court impanels a jury whose names are not in the record, without applying a strict legal

standard to determine whether the facts of the case warrant the withholding of the jurors’ names,

the trial court has committed structural error requiring reversal. Defendant asks this Court to adopt

the two-step test process required before impaneling an anonymous jury outlined in United States

v Thomas, 757 F2d 1359, 1365 (CA 2, 1985), which most United States Circuit Courts of Appeals

have adopted. “The decisions of intermediate federal courts are not binding on this Court, although

they may be considered for their persuasive value.” People v Lucynski, 509 Mich 618, 638 n 10;

983 NW2d 827 (2022). The Federal Circuit Courts of Appeals that have addressed this issue

assume, without citation to authority, that withholding jurors’ names is a drastic step.4 To impanel

an anonymous jury under Thomas, “there must be, first, strong reason to believe that the jury needs

protection . . . .” Thomas, 757 F2d at 1365. To determine whether jurors need protection,

defendant argues that a court should apply the so-called Ross factors, which are:

(1) the defendant’s involvement in organized crime, (2) the defendant’s

participation in a group with the capacity to harm jurors, (3) the defendant’s past

attempts to interfere with the judicial process, (4) the potential that, if convicted,

the defendant will suffer a lengthy incarceration and substantial monetary penalties,

and (5) extensive publicity that could enhance the possibility that jurors’ names

would become public and expose them to intimidation or harassment. [United

States v Ross, 33 F3d 1507, 1520 (CA 11, 1994).]

After the trial court determines the jurors must be kept anonymous for their safety, “reasonable

precaution must be taken to minimize the effect that such a decision might have on the jurors’

opinions of the defendants.” Thomas, 757 F2d at 1365. The reasonable precaution that must be

taken to safeguard a defendant’s presumption of innocence is generally for the trial court to provide

jurors an “intelligent, reasonable and believable explanation” for why their names are being

withheld that would not alert jurors to the fact that they may be in danger. Id. at 1364. An

appropriate explanation may be that the jurors’ names are being withheld to protect them from

media scrutiny. Id. at 1365.

Defendant has not shown that a trial court’s withholding from the record jurors’ names

would be detrimental to a defendant’s right to engage in meaningful voir dire or the right to the

presumption of innocence. The information withheld in anonymous jury cases generally relates

to the ability to locate the juror outside of court, such as names, addresses, and places of

employment. United States v Crockett, 979 F 2d 1204 (CA 7, 1992). The federal cases defendant

4

See, e.g., United States v Shryock, 342 F 3d 948, 971 (CA 9, 2003) (“We recognize that

empaneling an anonymous jury is an unusual measure . . . .”); United States v Sanchez, 74 F 3d

562, 564 (CA 5, 1996) (“[T]he decision to empanel an anonymous jury . . . is a drastic measure . . .

.”); Ross, 33 F 3d at 1519 (“[T]he empanelment of an anonymous jury is a drastic measure . . . .”).

-11-

cites to support his position do not address how the lack of knowing a juror’s name, address, and

employment information prevents meaningful voir dire. There is no indication that withholding

that information from the trial record, especially when it has already been provided to a defendant,

would prevent the defendant from asking any questions that would be relevant to determining

whether a potential juror could fairly decide a case.

There is also no indication that referring to jurors only by number in a sexual assault case

would undermine a defendant’s presumption of innocence. When the Federal Circuit Courts of

Appeals have considered anonymous jury cases, the defendants were typically accused of being

involved in organized crime and committing violent acts. For example, in Thomas, the defendants

were accused of committing “mob-style” murders and were charged with attempting to interfere

with judicial proceedings by murdering witnesses. Thomas, 757 F 2d at 1364. In such a situation,

the withholding of jurors’ biographical information would suggest to the jurors that there must be

at least some truth to the allegations against the defendant because steps are being taken to protect

their identities, thus undermining the presumption of innocence. There is no such danger to the

presumption of innocence in a sexual assault case. There is nothing regarding the withholding of

the jurors’ names that would suggest to the jury that the defendant is more likely to have committed

the crimes for which he is charged. Accordingly, defendant has not shown that the federal cases

on which he relies are persuasive in this case or that this Court should adopt the Thomas test and

the Ross factors in this case.

Defendant next argues that failing to place jurors’ names into the trial record without

applying a strict standard rises to the level of structural error. “Structural errors are defects that

affect the framework of the trial, infect the truth-gathering process, and deprive the trial of

constitutional protections without which the trial cannot reliably serve its function as a vehicle for

determination of guilt or innocence.” People v Watkins, 247 Mich App 14, 26; 634 NW2d 370

(2001). “A structural error is intrinsically harmful regardless of the effect on the outcome and

denies a defendant basic protections without which a trial cannot reliably serve as a vehicle for

determining guilt or innocence.” Id. In this case, defendant had access to the names of the jurors,

so any error would have to stem from withholding jurors’ names from the public. The Supreme

Court has stated that “[o]ur cases have uniformly recognized the public trial guarantee as one

created for the benefit of the defendant.” Gannett Co, Inc v DePasquale, 443 US 368, 380; 99 S

Ct 2898; 61 L Ed 2d 608 (1979). The public trial guarantee operates by allowing the public to

scrutinize the prosecution and court’s proceedings against the defendant to ensure the integrity of

the trial. Waller v Georgia, 467 US 39, 46; 104 S Ct 2210; 81 L Ed 2d 31 (1984).

Although “[n]o right ranks higher than the right of the accused to a fair trial,” the Supreme

Court has held that jurors retain the right to a reasonable amount of privacy and that trial courts

have the discretion to withhold certain juror information from the public. Press-Enterprise Co v

Superior Court of Cal, Riverside Co, 464 US 501, 503, 512-513; 104 S Ct 819; 78 L Ed 2d 629

(1984). In Press-Enterprise, there had been a high-profile rape and murder case that garnered

significant public attention. Id. at 503. After three initial days of voir dire in the case, the trial

court closed public access to the next six weeks of voir dire to protect the jurors’ privacy rights

because the nature of the case forced jurors to answer highly sensitive questions. Id. After the

conclusion of the trial, the media sought access to the voir dire transcripts and the trial court refused

to unseal them to protect the jurors’ privacy. Id. at 504-505. The Supreme Court held that there

is a presumption that voir dire proceedings must be open to the public, but that a trial court has the

-12-

discretion to close certain proceedings to the public when there is “an overriding interest based on

findings that closure is essential to preserve higher values and is narrowly tailored to serve that

interest.” Id. at 510. One higher value the Court specifically discussed is preserving the privacy

of sexual assault victims, especially under circumstances in which the victim has never come

forward, in order to avoid embarrassment or emotional trauma caused by disclosing such

information to the public. Id. at 512. When a trial court closes voir dire proceedings, the court

must make the transcript available to the public within a reasonable time, but the court may redact

juror names or parts of the transcript. Id.

This Court considered a case in which the media sought access to the names and addresses

of jurors that were withheld during trial, and concluded that the holdings in Press-Enterprise were

primarily concerned with the openness of proceedings and not information about the jurors

themselves. In re Disclosure of Juror Names & Addresses, 233 Mich App 604, 627-628; 592

NW2d 798 (1999). This Court held that, because jurors have rights to safety and privacy, the

public only has a qualified right to access juror names and addresses. Id. at 630. There is no right

for the public to know the identity of jurors during the trial; the public’s right to know the identity

of jurors only begins after the verdict has been rendered. Id. at 606. Further, a trial court does not

have to make any particularized findings before deciding to withhold the identities of jurors from

the public. Id. at 629. However, if the names and addresses of jurors are requested by media

organizations after trial, a trial court must then articulate its reasons for withholding juror

information to facilitate appellate review. Id. at 630. A trial court may withhold the names and

addresses of jurors for as long as is necessary to protect jurors’ safety and privacy. Id.

The trial court’s decision to refer to jurors only by number at trial did not undermine the

fairness or the integrity of the proceedings against defendant. This case differs from Press-

Enterprise and In re Disclosure in the respect that those cases concerned the rights of the public

rather than the rights of the defendants. Press-Enterprise, 464 US at 503; In re Disclosure, 233

Mich App at 606. However, there is no reason to suggest that viewing the issue from the

perspective of a defendant would yield a different result. The trial court’s procedure in this case

appears to have been an intermediate measure to balance jurors’ rights to privacy with defendant’s

right to open proceedings. Because of the sensitive nature of the questions jurors were asked

during voir dire, the trial court had the discretion to close the proceedings to the public and only

release a redacted transcript of voir dire. Press-Enterprise, 464 US at 512-513. However, the trial

court kept the voir dire proceedings open to the public. Multiple prospective jurors had family

members or people close to them who were sexual assault victims who had not come forward for

personal reasons. All of the voir dire questions asked and answers given were in a public setting,

were never sealed, and there is no indication that anyone ever sought or was denied access to the

jurors’ names. Defendant has not shown that he was prejudiced by the withholding of juror’s

names at trial. The trial court did not commit plain error affecting defendant’s substantial rights

when it withheld jurors’ names during defendant’s trial. Further, a trial court does not commit

structural error when it refers to jurors by number only. Accordingly, defendant is not entitled to

a new trial on this basis.

V. CONSTITUTIONALITY OF MCL 769.1k(1)(b)(iii)

Defendant argues that MCL 769.1k(1)(b)(iii), the statute that authorizes trial courts to

assess court costs on convicted defendants, is facially unconstitutional. We disagree.

-13-

Defendant brings a facial challenge to the constitutionality of MCL 769.1k(1)(b)(iii). “A

facial challenge [to the constitutionality of a statute] involves a claim that a legislative enactment

is unconstitutional on its face, in that there is no set of circumstances under which the enactment

is constitutionally valid.” People v Wilder, 307 Mich App 546, 556; 861 NW2d 645 (2014). MCL

769.1k provides, in pertinent part:

(1) If a defendant enters a plea of guilty or nolo contendere or if the court

determines after a hearing or trial that the defendant is guilty, both of the following

apply at the time of the sentencing or at the time entry of judgment of guilt is

deferred by statute or sentencing is delayed by statute:

(a) The court shall impose the minimum state costs as set forth in section 1j

of this chapter.

(b) The court may impose any or all of the following:

(i) Any fine authorized by the statute for a violation of which the defendant

entered a plea of guilty or nolo contendere or the court determined that the

defendant was guilty.

(ii) Any cost authorized by the statute for a violation of which the defendant

entered a plea of guilty or nolo contendere or the court determined that the

defendant was guilty.

(iii) Until May 1, 2024, any cost reasonably related to the actual costs

incurred by the trial court without separately calculating those costs involved in the

particular case, including, but not limited to, the following:

(A) Salaries and benefits for relevant court personnel.

(B) Goods and services necessary for the operation of the court.

(C) Necessary expenses for the operation and maintenance of court

buildings and facilities.

This Court concluded that MCL 769.1k(1)(b)(iii) is constitutional in People v Johnson, 336 Mich

App 688; 971 NW2d 692 (2021), lv gtd 509 Mich 1094 (2022). In that case, the defendant brought

a facial challenge to the constitutionality of MCL 769.1k(1)(b)(iii), arguing that the statute denies

defendants their due-process rights to be tried before an impartial decision-maker because judges

are incentivized to convict defendants in order to impose costs to raise money to fund the courts.

Id. at 692-693. The defendant also argued that MCL 769.1k(1)(b)(iii) violates the constitutional

principle of the separation of powers between coordinate branches of government because the

funding arrangement created by the statute prevents judges from accomplishing their

constitutionally assigned function of assuring criminal defendants are afforded due process of law

in the proceedings against them. Id. at 704. Defendant relies on those same arguments on appeal.

This Court rejected both of those arguments in Johnson, 336 Mich App at 704-705. In

reaching its decision, this Court relied on three cases decided by the United States Supreme Court

-14-

addressing situations in which the mayor of a municipality was responsible for sitting as judge in

cases of violations of local ordinances, the fines for convictions on those violations was paid

toward the municipality’s operating expenses, and the mayors had varying degrees of control over

the expenditure of those funds.5 Id. at 696-698. In Johnson, this Court identified the general

principle for deciding cases in which the entity that levies fines also receives the revenue as

follows:

Every procedure which would offer a possible temptation to the average man as a

judge to forget the burden of proof required to convict the defendant, or which

might lead him not to hold the balance nice, clear and true between the State and

the accused, denies the latter due process of law. [Id. at 697, quoting Tumey v Ohio,

273 US 510, 532; 47 S Ct 437; 71 L Ed 749 (1927).]

This Court held that MCL 769.1k(1)(b)(iii) is constitutional because the Michigan Constitution

prohibits judges from being paid from the revenue generated through assessing costs on convicted

defendants and there is no direct nexus between the costs received and any particular expenditures.

Johnson, 336 Mich App at 701-702. This Court also rejected the argument that MCL

769.1k(1)(b)(iii) presents an unconstitutional violation of the separation of powers because the

defendant had not met the burden of showing that there are no set of circumstances under which a

trial court judge could not be impartial. Id. at 704-705.

Even if defendant had offered persuasive arguments that were not rejected by the Johnson

Court, this Court is presently prohibited from disturbing its holdings because the case is pending

before the Michigan Supreme Court.6 “A panel of the Court of Appeals must follow the rule of

law established by a prior published decision of the Court of Appeals issued on or after November

1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the

Court of Appeals as provided in this rule.” MCR 7.215(J)(1). “[A] Supreme Court order granting

leave to appeal does not diminish the precedential effect of a published opinion of the Court of

Appeals.” MCR 7.215(C)(2). Also, a special panel to consider whether an opinion of this Court

was wrongly decided may not be convened after the Supreme Court has granted leave to appeal in

the controlling case. MCR 7.215(J)(3)(b). Therefore, this Court is required to follow the holding

that MCL 769.1k(1)(b)(iii) is constitutional as established in Johnson, 336 Mich App at 705.

Defendant is not entitled to relief on this issue.

VI. EXCESSIVE FINES CLAUSE

Defendant argues that this Court should either vacate the costs and attorney fees imposed

in his judgment of sentence or reverse the trial court’s order to remit his prisoner funds to pay the

costs and fees imposed on him on the basis that he is indigent. We disagree.

5

Ward v Monroeville, 409 US 57; 93 S Ct 80; 34 L Ed 2d 267 (1972); Dugan v Ohio, 277 US 61;

48 S Ct 439; 72 L Ed 784 (1928); Tumey v Ohio, 273 US 510; 47 S Ct 437; 71 L Ed 749 (1927).

6

People v Johnson, 509 Mich 1094; 976 NW2d 862 (2022).

-15-

Because defendant did not preserve this issue for appeal by challenging the assessment of

costs and fees against him at sentencing, we review this unpreserved issue for plain error affecting

substantial rights. See People v Konopka (On Remand), 309 Mich App 345, 356; 869 NW2d 651

(2015). As discussed, MCL 769.1k requires a trial court sentencing a convicted defendant to

impose on the defendant minimum state costs and allows the trial court to impose fines authorized

by statute, court costs, and attorney fees. MCL 769.1k(a) and (b). MCL 769.1l allows a trial court

to order that any costs and fees imposed on an incarcerated defendant under MCL 769.1k shall be

remitted to the court by deducting sums from the defendant’s prisoner funds. MCL 769.1l

provides, in pertinent part:

If a prisoner under the jurisdiction of the department of corrections has been

ordered to pay any sum of money as described in section 1k and the department of

corrections receives an order from the court on a form prescribed by the state court

administrative office, the department of corrections shall deduct 50% of the funds

received by the prisoner in a month over $50.00 and promptly forward a payment

to the court as provided in the order when the amount exceeds $100.00, or the entire

amount if the prisoner is paroled, is transferred to community programs, or is

discharged on the maximum sentence.

A defendant has the right to challenge the recoupment of costs and attorney fees by deduction of

his prisoner funds on the basis that he is indigent. People v Jackson, 483 Mich 271, 292-293; 769

NW2d 630 (2009).

In Jackson, the Supreme Court considered whether an indigent defendant can be required

to pay attorney fees that are assessed in the defendant’s judgment of sentence. Jackson, 483 Mich

at 274. Although Jackson only involved the recoupment of attorney fees, the Court indicated that

the same rule applies to the recoupment of costs. Id. at 296. The Court held that a trial court is

not required to assess a defendant’s ability to pay costs and attorney fees when the trial court

determines the amount it assesses on the defendant. Id. at 292. However, when a trial court

enforces the imposition of costs and fees, due process requires that a defendant be given notice of

the enforcement action and an opportunity to be heard to contest the enforcement. Id. A defendant

has the right to challenge whether he can be forced to pay costs and fees on the basis of his ability

to pay at the time the trial court enforces the defendant’s obligation. Id. When a defendant makes

a timely objection, the trial court is required to consider the defendant’s indigent status and ability

to pay the costs and fees at that time. Id. at 292-293. A trial court should “hold that a prisoner’s

individual circumstances warrant amending or reducing the remittance order when, in its

discretion, it determines that enforcement would work a manifest hardship on the prisoner or his

immediate family.” Id. at 296-297. A trial court has the discretion to decide how it will adjudicate

a claim that a defendant lacks the ability to pay costs and fees, and the court is not required to hold

any formal proceedings. Id. at 297.

There is a statutory presumption that a prisoner is nonindigent. Jackson, 483 Mich at 295.

By enacting MCL 769.1l, the Legislature created a statutory ability-to-pay threshold for

determining whether a prisoner is indigent, which is that a prisoner has the ability to pay costs and

fees when his prisoner receives funds in excess of $50 in a month. Id. The Supreme Court

explained that this statutory framework passes constitutional muster because “a prisoner’s ‘living

expenses’ are nil, as the prisoner is clothed, sheltered, fed, and has all his medical needs provided

-16-

by the state.” Id. However, a prisoner can rebut the presumption of nonindigence by showing

“unique individual financial circumstances.” Id. at 296. A prisoner bears a heavy burden of

rebutting the presumption of nonindigence. Id. A trial court should reduce or rescind a remittance

order only when the defendant’s unique financial circumstances work “a manifest hardship on the

prisoner or his immediate family.” Id. at 296-297.

The specific relief that defendant seeks on appeal is for this Court to either rescind the trial

court’s order to remit defendant’s prisoner funds and allow him to challenge in the trial court the

enforcement of his assessed costs and fees or, alternatively, to vacate from defendant’s judgment

of sentence the portions of his sentence that assess costs and fees. Defendant is not entitled to

either form of relief. Defendant’s challenge to the trial court’s order to remit defendant’s prisoner

funds is not ripe for appeal because defendant has not petitioned the trial court for relief on the

basis of his inability to pay costs and fees. Id. at 298-299. A convicted defendant can petition the

trial court for relief from the enforcement of costs and fee assessments at any time, Id. at 296 n 23,

and defendant has not yet done so. According to the register of actions in this case, the trial court

entered an order to remit defendant’s prisoner funds on August 13, 2021, and the order was mailed

to defendant on August 27, 2021, thus providing notice to defendant of the enforcement of his

judgment of sentence regarding costs and fees. Defendant’s motion to correct an invalid sentence

only challenged the imposition of costs and attorney fees on the grounds that MCL 769.1k is

unconstitutional. Defendant did not make an argument or offer proofs in the trial court regarding

his indigent status or inability to pay the assessed costs and fees. During the trial court’s hearing

on defendant’s motion to correct an invalid sentence, defendant did not raise the issue of indigency,

and the trial court stated on the record that defendant had never challenged the enforcement of his

obligation to pay costs and attorney fees. Accordingly, this Court cannot provide defendant relief

on this issue. Id. at 297-298. However, defendant retains the right to challenge the recoupment of

costs and fees from him in the trial court. Id. at 297 n 24.

Defendant is not entitled to have the assessment of costs and fees vacated from his

judgment of sentence because defendant has abandoned his constitutional excessive-fines

challenge on appeal. On appeal, defendant has made an argument with citation to authority to

support his position that costs and attorney fees are fines for the purposes of the Eighth Amendment

and Michigan’s Excessive Fines Clauses. However, defendant has not made an argument

regarding how an excessive-fines analysis would apply to the assessment of costs and fees

generally, and, more importantly, defendant has not articulated how the costs and fees assessed

against him are unconstitutional under the specific facts of this case. Failure to fully brief an issue

on appeal constitutes abandonment of the issue. People v McGraw, 484 Mich 120, 131 n 36; 771

NW2d 655 (2009). “An appellant may not merely announce his position and leave it to this Court

to discover and rationalize the basis for his claims . . . .” People v Watson, 245 Mich App 572,

587; 629 NW2d 411 (2001). Therefore, defendant has not met his burden of showing that the trial

court committed plain error affecting his substantial rights when it assessed the court costs and

fees defendant owes. See Carines, 460 Mich at 763. Accordingly, defendant is not entitled to

relief on this issue.

Although defendant is not entitled to relief, assessed costs and fees are fines for purposes

of the Excessive Fines Clause. The Michigan Constitution prohibits the imposition of excessive

fines, Const 1963, art 1, § 16, and the prohibition on excessive fines contained in the Eighth

Amendment to the United States Constitution was relatively recently incorporated under the

-17-

Fourteenth Amendment to apply to state action. Timbs v Indiana, ___ US ___, ___; 139 S Ct 682,

687; 203 L Ed 2d 11 (2019). This Court has not considered whether court costs and attorney fees

are fines for the purposes of the Excessive Fines Clauses. Defendant argues that court costs and

attorney fees are subject to the limitations of the Excessive Fines Clauses because they are only

imposed on convicted defendants. The prosecution, on the other hand, argues that court costs and

attorney fees should be considered as more akin to a civil remedy that compensates the government

for the costs it has incurred through trying a defendant and providing representation.

Generally, “the Eighth Amendment places limits on the steps a government may take

against an individual, whether it be keeping him in prison, imposing excessive monetary sanctions,

or using cruel and unusual punishments.” Browning-Ferris Indus of Vt, Inc v Kelco Disposal, Inc,

492 US 257, 275; 109 S Ct 2909; 106 L Ed 2d 219 (1989). The word “fine” means “a payment to

a sovereign as punishment for some offense.” Id. at 265. The Excessive Fines Clause applies to

“fines directly imposed by, and payable to, the government.” Id. at 268. Fines resulting from both

criminal and civil proceedings are subject to scrutiny under the Excessive Fines Clause. Hudson

v United States, 522 US 93, 103; 118 S Ct 488; 139 L Ed 2d 450 (1997). A civil cost imposed on

a party does not implicate the Excessive Fines Clause when it “solely” serves a remedial purpose.

Austin v United States, 509 US 602, 621-622; 113 S Ct 2801; 125 L Ed 2d 488 (1993). A cost

imposed in a civil proceeding initiated by a governmental entity against an individual is remedial

when its purpose is only to compensate the government for losses. United States v Bajakajian,

524 US 321, 329; 118 S Ct 2028; 141 L Ed 2d 314 (1998). However, the Excessive Fines Clause

is implicated in civil proceedings in which the cost imposed serves, at least in part, a punitive

purpose. United States v Ursery, 518 US 267, 281; 116 S Ct 2135; 135 L Ed 2d 549 (1996).

Costs and fees are subject to the Excessive Fines Clause because they are in part punitive

despite having remedial purposes. Our Supreme Court acknowledged that costs and fees are part

of the judgment against a defendant. Jackson, 483 Mich at 283. Fees and costs are only imposed

on convicted defendants, and the costs and fees are imposed at sentencing. MCL 769.1k(1).

Although minimum state costs must be assessed, the trial court has discretion regarding whether

to assess fines, court costs, and attorney fees as part of a defendant’s sentence. MCL 769.1k(1)(a)

and (b). Unlike a purely civil debt, a trial court may imprison a defendant for nonpayment of costs.

MCL 769.1k(10).

The United States Supreme Court has addressed the distinction between court costs and

fines and concluded that there is no constitutional distinction between the two for the purposes of

enforcing payment. Williams v Illinois, 399 US 235, 240-241; 90 S Ct 2018; 26 L Ed 2d 586

(1970). In Williams, the defendant was convicted of petty theft and sentenced to the statutory

maximum sentence, which was a one-year term of confinement, a $500 fine, and $5 in court costs.

Id. at 236-237. The judgment provided that, if the defendant’s fine and court costs were unpaid at

the end of his term of confinement, he would remain in jail until the fine and costs were paid and

receive a credit of $5 a day spent in jail toward the fine and costs. Id. at 237. Because the defendant

was indigent and had no means to pay the fine and court costs, the defendant faced a maximum

term of confinement of the statutory maximum term plus 101 days. Id. The Court held that the

sentencing scheme violated the Equal Protection Clause of the Fourteenth Amendment because

the defendant was confined beyond the statutory maximum term on the basis of his status as

indigent. Id. at 240-241. Regarding the distinction between a fine and the assessment of court

costs, the Court stated:

-18-

What we have said regarding imprisonment for involuntary nonpayment of

fines applies with equal force to imprisonment for involuntary nonpayment of court

costs. Although the actual amounts prescribed for fines and court costs reflect quite

different considerations, the purpose of incarceration appears to be the same in both

instances: ensuring compliance with a judgment. Thus inability to pay court costs

cannot justify imprisoning an indigent beyond the maximum statutory term since

the Equal Protection Clause prohibits expanding the maximum term specified by

the statute simply because of inability to pay. [Id. at 244 n 20 (citation omitted).]

Although the assessment of costs and fees serves a remedial purpose, both the Michigan

and United States Supreme Courts have determined that costs and fees are part of the judgment

against a defendant and enforceable as part of the judgment, which includes jailing a defendant

without a separate finding of guilt. Accordingly, the assessment of costs and fees is at least in part

punitive. Therefore, the assessment of costs and fees is subject to scrutiny under the Excessive

Fines Clause. Ursery, 518 US at 281. The costs and fees imposed on defendant are fines for

purposes of the Excessive Fines Clause. However, defendant has not showed he is entitled to relief

from this Court with regard to the enforcement of the costs and fees he was sentenced to pay.

Affirmed.

/s/ Brock A. Swartzle

/s/ Mark J. Cavanagh

/s/ Anica Letica

-19-