Michigan's highest court has said it will review a judge's decision to order a homeless man convicted of assault to pay his court-appointed counsel.

In a Friday order, the state Supreme Court said it would take up the $5,730 attorney fee bill Donell Ivey received at his sentencing and consider whether a Michigan law that authorizes judges to order criminal defendants to reimburse their court-appointed counsel is constitutional.

Ivey was convicted by jury of assault with intent to do great bodily harm for allegedly beating up a man in a park on July 14, 2022, leaving the man with a brain injury. Ivey was sentenced to serve 7 to 20 years in prison as a fourth-offense habitual offender.

At Ivey's sentencing, a Macomb County Circuit Court judge ordered Ivey to pay $5,730 in attorney fees for his court-appointed counsel.

Affirming the sentence and attorney fees in a November 2024 opinion, the Michigan Court of Appeals noted that Michigan Compiled Laws 769.1k(1)(b)(iv) authorizes judges to impose on criminal defendants "the expenses of providing legal assistance to the defendant" during sentencing. 

Another Michigan law, the Michigan Indigent Defense Commission Act, makes a distinction between indigent and partially indigent defendants. Partially indigent defendants must contribute something to the cost of their representation, the MIDCA says, while fully indigent defendants are not required to pay for counsel.

But the Michigan Court of Appeals panel said MIDCA does not bar judges from charging fully indigent defendants like Ivey attorney fees under MCL 769.1k(1)(b)(iv).

"We therefore hold that MCL 769.1k(1)(b)(iv) still applies to indigent defendants like defendant here, and that statute authorized the trial court to impose '[t]he expenses of providing legal assistance to the defendant,'" the Court of Appeals panel said.

In a petition to the state Supreme Court, Ivey said he was homeless before his incarceration and his only income was Social Security disability benefits. He was considered indigent when he was assigned a court-appointed public defender and was still indigent at the time of his sentencing, according to the petition.

Ivey argued it makes little sense for the MIDCA to say the state will cover the cost for indigent defendants' attorneys, only to have a different statute authorize judges to charge those same defendants to reimburse the government.

"The trial court thus had no lawful basis to charge Mr. Ivey for the cost of his appointed attorney paid for by the state. At minimum, Mr. Ivey was entitled to a hearing on his ability to pay the costs imposed," Ivey said.

Ivey has also claimed that the attorney fees imposed were unconstitutional.

Michigan's constitution requires penal fines imposed by courts to be used to fund public libraries. Ivey said the attorney fees amount to fines because "only the convicted pay," but in Macomb County the attorney fees are returned to the countywide court-appointed counsel system instead of being used to fund libraries, according to Ivey's brief.

The Macomb County Prosecutor's Office agreed with Ivey that Michigan law "precludes a fully indigent defendant from being assessed attorney fees" and argued Ivey's fees should be canceled.

The prosecutor's office said it's rare for judges to order a defendant to reimburse court-appointed counsel, in their experience, and their office usually agrees to waive the fees if the defendants' attorney asks for the fees to be canceled. Ivey, however, "appears to have fallen through the cracks."

"Indeed, in Macomb County, attorney fees are generally not assessed by the trial courts. Generally, the public defender's office no longer provides invoices for reimbursement and the judges do not order or waive them at counsel's request," the prosecutor's office said in a brief filed with the high court. "It would be unfair for this defendant to be subjected to attorney fees when every other defendant in Macomb County is not."

The parties did not immediately respond to requests for comment Monday.

The state is represented by Emil Semaan of the Macomb County Prosecutor's Office.

Ivey is represented by Kierston Des'Neiges Nunn of the State Appellate Defender Office.

The case is People of Michigan v. Donell Willie-Terrell Ivey, case number 168000, in the Michigan Supreme Court.

--Editing by Kelly Duncan.