THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN BIRGE, Defendant-Appellant.
NO. 4-17-0341
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
November 22, 2019
2019 IL App (4th) 170341-U
Honorable Jennifer H. Bauknecht, Judge Presiding.
Appeal from the Circuit Court of Livingston County No. 16CF159
Justices DeArmond and Harris concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed, concluding (1) the trial court properly admonished the jurors in accordance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (2) the trial court did not deny defendant a fair sentencing hearing, (3) defendant was not denied effective assistance of counsel by counsel’s failure to object to the restitution order, and (4) the trial court’s restitution order complied with the requirements of the restitution statute.
¶ 2 In February 2017, a jury found defendant, Brian Birge, guilty of burglary (
I. BACKGROUND
¶ 5 In May 2016, the State charged defendant by information with burglary (count I) (
A. Jury Trial
¶ 7 In February 2017, the case proceeded to a jury trial on counts I and III. (The State dismissed count II—criminal damage to property—prior to trial.) The State informed the trial court it previously extended a plea offer to defendant that included a 12-year prison sentence in exchange for defendant’s agreement to plead guilty to both counts and pay the victim $117,230 in restitution. Defense counsel stated a counteroffer was tendered with a shorter term of imprisonment but did not reference a counteroffer reducing the amount of restitution to be paid.
¶ 9 During voir dire, the trial court separated the venire into two groups and admonished each group regarding the principles enumerated in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) as follows:
“THE COURT: This is a criminal case as I mentioned. The Defendant is presumed innocent. There are a number of propositions of law that you must be willing to follow if you are going to serve as a juror in this case. So I am going to recite those for you now. Please listen carefully as I will be asking if you understand these principles of law and if you accept these principles of law.
A person accused of a crime is presumed to be innocent of the charge against him. The fact that a charge has been made is not to be considered as any evidence or presumption of guilt against the Defendant.
The presumption of innocence stays with the Defendant throughout the trial and is not overcome unless from all of the evidence you believe the State proved the Defendant’s guilt beyond a reasonable doubt.
The State has the burden of proving the Defendant’s guilt beyond a reasonable doubt. The Defendant does not have to prove his innocence. The Defendant does not have to present any evidence on his own behalf and does not have to testify if he does not wish to. If the Defendant does not testify, that fact must not be considered by you in any way in arriving at your verdict.
So by a show of hands, do each of you understand these principles of law?
PROSPECTIVE JURORS: (All hands raised.)
THE COURT: Okay. And do each of you accept these principles of law?
PROSPECTIVE JURORS: (All hands raised.)”
2. Evidence Presented
¶ 11 Officer Brad Baird was on duty conducting routine patrol on May 28, 2016, at approximately 1:30 a.m. when an individual flagged him down to advise him a building—identified as the location of Chief City Vapor—was on fire. Baird was approximately one hundred feet from the building and saw smoke and flames. When he approached the building, Baird noticed the south-side door was ajar, the glass on the door had been broken, and “[t]here was glass laying in front of the door and in the doorway[.]” Officer Baird then discovered a trail of approximately 10 to 12 items that “appeared to come from the Chief City Vapor building” and led “towards the railroad tracks and to the east.” The trail ultimately “led to an area southeast of the *** building where there were several boxes with hundreds of items.”
¶ 12 Officer Jonathan Marion was on duty conducting routine patrol on May 28, 2016, at approximately 1:30 a.m. when he responded to a report of a structure fire at Chief City Vapor. Officer Marion saw “heavy smoke in the area” and “flames showing from inside the building.” Marion testified Officer Baird, another officer, and the individual who flagged down Baird were already at the scene when he arrived. The only other person in the vicinity was an individual walking down a street located one block south of Chief City Vapor. Officer Marion approached the individual and identified him in court as defendant. Officer Marion noticed defendant’s hand was bleeding. Defendant told Marion he “cut it on a lawn mower blade working on a lawn mower.” Marion testified defendant was wearing “a coat and a hoodie with glass shards and plastic tags stuck to his clothing and his legs.” Defendant consented to a search of his person. Officer Marion recovered two pairs of pliers, a large amount of change, a set of keys, a lighter, and approximately $115 in cash. Marion also testified defendant told him he (defendant) did not
¶ 13 Tom Roe testified he owned Chief City Vapor. He did not give anyone permission to enter the building after the store closed on the night of the fire. Roe kept change and approximately $100 in cash in the store’s cash register; the keys discovered on defendant’s person unlocked the outbuildings on the property; and the keys were always stored in his desk located inside of the building. Roe also identified the trail of items discovered outside of the building as property of his business. When asked about the damage the fire caused, Roe testified, “We had to gut the entire building down to pulling the studs, pulling the insulation, furnace. I mean, everything was lost[,]” including the merchandise and furniture.
¶ 14 Defendant testified he “had overdosed on drugs” approximately 12 hours prior to the fire and had been hospitalized. When discharged, defendant’s mother dropped him off at “Aly Anne’s” to gamble, which was located close to where Officer Marion later questioned defendant. Defendant testified he did not remember many of the details from the relevant time because he was heavily medicated, drinking, and using drugs. He testified he remembered leaving Aly Anne’s and walking to his sister’s house. Defendant knocked on the door, but his sister did not answer so he decided to return to Aly Anne’s to continue gambling. On his walk back, he observed “some commotion going on” and people “running back and forth from a vehicle” parked near Chief City Vapor. He watched as they drove away. Defendant then noticed “stuff scattered on the road over across the [railroad] tracks.” One of the items was a jacket, which he put on. Defendant testified he went through the pockets of the jacket and cut his hand on glass. He remembered talking to Officer Marion “a little bit” but did not recall discussing the
¶ 15 Following closing arguments, the jury found the State proved defendant guilty of both counts beyond a reasonable doubt.
B. Sentencing Hearing
¶ 17 At a March 2017 sentencing hearing, a presentence investigation report (PSI) was admitted without objection. It showed defendant had four prior felony convictions—aggravated criminal sexual abuse, residential burglary, unlawful possession of a controlled substance, and theft—and two felony probation revocations. Defendant reported no physical or mental health issues but did report a history of substance abuse. The PSI also recommended the trial court order defendant to pay restitution to the victim. Although a letter had been sent to the victim requesting restitution information, the victim had not responded. The PSI noted defendant “may have difficulty paying” restitution.
¶ 18 The State recommended a sentence in excess of 20 years, arguing the following factors in aggravation: (1) defendant’s criminal history, (2) his conduct caused serious harm, and (3) deterrence. The State also requested defendant pay $117,230 in restitution; defendant did not object to the State’s request. Defendant recommended the minimum sentence permissible by statute, offering the following in mitigation: (1) he attempted suicide shortly before commission of the crimes and (2) he was under the “residual[ ]” influence of “a variety of substances” at the time.
¶ 19 The trial court stated the following in regard to the applicable aggravating and mitigating factors:
“THE COURT: *** I don’t want there to be any suggestion in the record that the Court is somehow double enhancing on [defendant’s] prior record. It’s, it is not a good record. But in terms of an aggravating factor, I do recognize that it is the basis for the enhancement to the Class X sentencing.
But I bring that up as the first point because it is a serious, serious case; and one of the factors the Court is to consider is deterrence. That’s a very strong factor I guess depending on the type of case that we’re dealing with. But in this case, deterrence is a very strong factor for the Court to consider.
We see a lot of stuff in Livingston County that’s not good, a lot of drug related offenses; and I understand that [defendant] believes that in part this is related to drug offenses or a drug addiction. But what we see typically with drug cases are people harming themselves or perhaps, not to minimize it, but less serious property crimes such as, you know, stealing change or something like that. Still a serious matter but the lack of respect for somebody’s property when you are talking about items of change located in a car versus causing substantial harm to somebody’s business I think are two very different things.
***
There simply is no set of circumstances at all that justify what happened here. *** The testimony or the story from [defendant] was perhaps not bizarre but pretty close. It was pretty inconsistent and not very logical which I think the jury found to not be credible, and I think based upon my assessment of it I didn’t think [defendant] was all that credible either. And [I] say that because the other matters that get raised such as excuses for your conduct here, they don’t carry a lot of
weight when it appears that you are going to say and do anything that you feel like at the moment.
You know, in general I try to have pretty, I have faith I guess in people that deep down most people want to do what’s right. Most people try to do what’s right. Addicts have a very difficult time with that, but primarily they hurt themselves. You’re not the same type of addict that we’re accustomed to dealing with in here because you don’t just harm yourself. You harm the community around you in big ways. You have absolutely no respect for anybody’s home, business, property. Like I said, if you are stealing change out of a car, that’s one thing. Breaking into people’s homes, that’s a residential burglary. Breaking into people’s businesses and destroying them?
* * *
So I do think that deterrence is a factor. Obviously your conduct caused serious harm. And your prior record not just the factor or not just the convictions that caused, are cause for the enhancement but your other record as well. You consistently have demonstrated a lack of regard for society, rules, other people, so there’s just no way in this case that a minimum sentence would be appropriate.
I do not believe there are any [mitigating] factors here. I recognize [defendant] thinks that he might have overdosed the night before. Maybe he did. That still doesn’t excuse the conduct. *** And so I can’t imagine wanting to have you back here anytime soon for the protection of the community.”
¶ 20 The trial court sentenced defendant on both counts to 24 years and 6 months’ imprisonment, with the sentences to run concurrently. The court also ordered defendant to pay
C. Motion to Reconsider Sentence and Hearing
¶ 22 On March 23, 2017, defendant filed a motion to reconsider sentence. Defendant argued the sentence was excessive in light of the evidence presented and the court failed to consider the following mitigating factors: (1) defendant did not contemplate his criminal conduct would cause or threaten serious harm, (2) there were substantial grounds tending to excuse or justify defendant’s criminal conduct “in that [he] was recently hospitalized for an attempted suicide from an overdose of medication and other substances,” (3) defendant’s conduct was the result of circumstances unlikely to recur if he receives the proper addiction and mental health treatment, (4) his imprisonment would entail excessive hardship to his dependents, and (5) his imprisonment would endanger his medical condition. See
¶ 23 On April 25, 2017, the trial court conducted a hearing on defendant’s motion. Defense counsel stated: “The thing we wanted the Court to reconsider really was the fact [defendant] had been recently hospitalized just prior to this incident occurring and had just been released from the emergency room *** after attempting suicide taking several medications.” The trial court denied defendant’s motion, reasoning as follows:
“THE COURT: Well, there are a number of mitigating factors in this case. There’s aggravating factors in this case which, all of which were discussed and weighed in great detail at the original sentencing hearing. I haven’t heard
anything new here today that was not previously brought to the Court’s attention or considered by the Court.
So I think the sentence is within the range prescribed by statute. I think that the Court properly balanced the factors in aggravation in mitigation, specifically the mitigating factors raised again today. And I believe that the aggravating factors here do outweigh the mitigating factors, and the sentence is appropriate so the motion to reconsider the sentence is denied.”
¶ 24 This appeal followed.
II. ANALYSIS
¶ 26 On appeal, defendant argues (1) the trial court failed to properly admonish the jurors in accordance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (2) he was denied a fair sentencing hearing because the trial court erroneously considered (a) a factor inherent in the offense in aggravation and (b) no factors in mitigation when imposing sentence, (3) trial counsel was ineffective for failing to object to the restitution order, and (4) the restitution order is invalid for failing to set forth the manner in which restitution is to be paid.
A. Juror Admonishments
¶ 28 Defendant first argues the trial court failed to properly admonish the prospective jurors as set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). He contends the trial court “impermissibly conflated all four principles” in the rule and asked whether the prospective jurors understood and accepted this “one broad instruction” rather than asking if the prospective jurors understood and accepted each individual principle. Defendant concedes he forfeited this argument by failing to object at trial and raise the alleged error in a posttrial motion but asks this
¶ 29 Under the plain-error doctrine, we may consider a forfeited claim when “(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007). The first step in plain-error analysis is to determine whether clear or obvious error occurred. Sebby, 2017 IL 119445, ¶ 49. We will review de novo whether the trial court committed clear or obvious error by failing to comply with Rule 431(b). See People v. Thompson, 238 Ill. 2d 598, 606, 939 N.E.2d 403, 409 (2010).
¶ 30 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) requires trial courts to read four principles of law to prospective jurors and determine whether they understand and accept those principles. It states:
“The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held against him or her; however, no
inquiry of a prospective juror shall be made into the defendant’s decision not to testify when the defendant objects.
The court’s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012).
¶ 31 Our supreme court has interpreted the language of Rule 431(b) to mandate a “specific question and response process.” Thompson, 238 Ill. 2d at 607. “The trial court must ask each potential juror whether he or she understands and accepts each of the principles in the rule.” Id. Next, “the rule requires an opportunity for a response from each prospective juror on their understanding and acceptance of those principles.” Id. Citing Thompson, this court, in People v. Curry, 2013 IL App (4th) 120724, ¶ 65, 990 N.E.2d 1269, made the following suggestion to trial courts regarding compliance with Rule 431(b):
“Indicate to the potential jurors the court will go over some principles of law to ensure they understand and accept the principles of law. Thereafter, read verbatim the four principles outlined in Rule 431(b). Then, ask jurors individually or in a group whether they understand and accept the principles, giving each juror an opportunity to respond in a manner that ensures his or her understanding and acceptance or lack thereof, is a matter of record.”
¶ 32 The trial court in this case followed both the “specific question and response process” outlined in Thompson and this court’s suggestion in Curry. The trial court first
¶ 33 Defendant nevertheless argues compliance with Rule 431(b) requires the trial court to ask for juror acceptance and understanding after recitation of each individual principle, not after recitation of all four principles. Defendant relies on People v. Othman, 2019 IL App (1st) 150823, for this proposition. In Othman, the First District stated the following regarding compliance with Rule 431(b):
“In criminal trials, Illinois judges are required to ask the venire eight simple questions: (1) defendant is presumed innocent: (a) do you understand that? (b) do you accept it?; (2) defendant is not required to offer any evidence on his own behalf: (a) do you understand that? (b) do you accept it?; (3) defendant must be proved guilty beyond a reasonable doubt by the State: (a) do you understand that? (b) do you accept it?; and (4) the failure of defendant to testify on his own behalf cannot be held against him: (a) do you understand that? (b) do you accept it?” Id. ¶ 60.
¶ 34 To the extent Othman may be inconsistent with our conclusion here, we note we are not bound by the First District’s decision. See People v. Maggio, 2017 IL App (4th) 150287, ¶ 26, 80 N.E.3d 72; see also O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440, 892 N.E.2d 994, 1006-07 (2008) (“[T]he opinion of one district, division, or panel of
B. Sentencing Hearing
¶ 36 Defendant next argues he was denied a fair sentencing hearing because the trial court erroneously considered (1) a factor inherent in the offense in aggravation and (2) no factors in mitigation when imposing his sentence.
1. Aggravating Factors
¶ 38 Defendant contends it “was improper for the trial court to consider in aggravation at sentencing that [he] caused ‘substantial harm’ to the business, to himself, and to the community” because his conduct caused no greater harm than that which was inherent in the offense. He states we “should apply the same analysis to the felony crimes of burglary and arson” but cites no authority in support of this proposition. The State concedes harm “may be” inherent in the offense of arson, but argues it is not inherent in the offense of burglary. Defendant does not respond to the State’s argument in his reply brief, and we therefore decline to accept his
¶ 39 The Unified Code of Corrections (Unified Code) (
¶ 40 Our supreme court has explained when a trial court may diverge from the general rule and properly consider in aggravation a factor that is arguably implicit in the offense:
“[T]he commission of any offense, regardless of whether the offense itself deals with harm, can have varying degrees of harm or threatened harm. The legislature clearly and unequivocally intended that this varying quantum of harm may constitute an aggravating factor. While the classification of a crime determines the sentencing range, the severity of the sentence depends upon the
degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted.” (Emphases in original.) People v. Saldivar, 113 Ill. 2d 256, 269, 497 N.E.2d 1138, 1143 (1986).
Thus, when considering whether to find “serious harm” an aggravating factor, “the sentencing court compares the conduct in the case before it against the minimum conduct necessary to commit the offense.” People v. Hibbler, 2019 IL App (4th) 160897, ¶ 67, 129 N.E.3d 755. We review de novo whether the trial court relied upon an improper factor at sentencing. See Id. ¶ 65.
¶ 41 Even assuming “serious harm” is a factor implicit in the offense of arson, the trial court properly considered that factor in aggravation because defendant’s conduct caused a degree of harm far greater than that which would have been caused by the minimum conduct necessary to commit the offense. “A person commits arson when, by means of fire or explosive, he or she knowingly *** [d]amages any real property, or any personal property having a value of $150 or more, of another without his or her consent ***.”
2. Mitigating Factors
¶ 44 As noted above, the Unified Code lists mitigating factors the trial court must consider when determining an appropriate sentence. See
¶ 45 Reviewing courts give great deference to the trial court’s sentencing judgment “because the trial judge, having observed the defendant and the proceedings, has a far better opportunity to consider these factors than the reviewing court, which must rely on the ‘cold’ record.” (Internal quotation marks omitted.) People v. Alexander, 239 Ill. 2d 205, 214, 940 N.E.2d 1062, 1066 (2010). “The trial judge has the opportunity to weigh such factors as the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. [Citations.] Consequently, the reviewing court must not substitute its judgment for that of the trial court merely because it would have weighed these factors differently.” (Internal
¶ 46 Defendant attempts to affirmatively rebut the presumption the trial court properly considered the mitigating evidence presented by pointing to an alleged contradiction between two statements made by the trial court. At the sentencing hearing, the trial court stated, “I do not believe there are any [mitigating] factors here”; yet at the hearing on defendant’s motion to reconsider, the court stated, “there are a number of mitigating factors in this case.” When viewing the record as a whole, these two statements do not contradict one another. The former statement merely indicates the trial court found no mitigating factors outweighed the applicable aggravating factors, not, as defendant argues, that the trial court failed to even consider the mitigating evidence presented.
¶ 47 On the contrary, the record clearly shows the trial court considered the mitigating factors defendant raises on appeal. The trial court heard the evidence presented at trial, including defendant’s testimony regarding (1) the events surrounding the commission of the crime, (2) his substance abuse problems, and (3) his overdose and hospitalization prior to the night of the offense but “didn’t think [defendant] was all that credible ***.” The court stated it would not give much weight to the mitigating factors defendant raised as “they don’t carry a lot of weight when it appears that you are going to say and do anything that you feel like at the moment.” The trial court further discussed defendant’s drug addiction and found it was outweighed by the serious harm he caused, especially in comparison to the harm caused by others struggling with drug addiction problems in Livingston County, and by his extensive criminal history, which included four prior felony convictions and two felony probation revocations. The record indicates the court properly considered the mitigating factors defendant raises on appeal, found
¶ 48 We find defendant failed to satisfy his burden to affirmatively rebut the presumption the trial court properly considered the relevant mitigating evidence and conclude the trial court did not abuse its discretion in sentencing defendant to concurrent terms of 24 years and 6 months’ imprisonment.
C. The Restitution Order
¶ 50 Defendant next argues the trial court’s restitution order is invalid because (1) it lacks a sufficient evidentiary basis for the $117,230 amount (see
1. Compliance With Section 5-5-6(b) of the Unified Code
¶ 52 Defendant contends the trial court’s restitution order is in violation of section 5-5-6(b) of the Unified Code (
a. Ineffective Assistance of Counsel
¶ 55 Even assuming counsel’s performance was deficient, defendant’s ineffective assistance claim still fails because he cannot demonstrate prejudice. Defendant makes no argument the restitution amount was incorrect. Instead, he merely asserts the result would have been different “because the restitution amount would either be supported by evidence, altered, or would not have been ordered at all.” Defendant admits it is possible the amount would have been supported by evidence even if counsel had objected, and thus, the result of the proceeding would not have been different. Given the victim’s testimony he “had to gut the entire building” and “everything was lost” in the fire, we believe the restitution amount is not unsupported by the evidence in the record. Defendant’s failure to demonstrate he was prejudiced by counsel’s performance “precludes a finding of ineffectiveness.” Simpson, 2015 IL 116512, ¶ 35.
¶ 57 Alternatively, defendant contends the trial court committed plain error by entering a restitution order without a sufficient evidentiary basis. Relying on People v. Jones, 206 Ill. App. 3d 477, 564 N.E.2d 944 (1990), defendant asks this court to review this forfeited claim under the second prong of the plain-error doctrine because sentencing “affects [his] fundamental right to liberty.” “The ultimate question of whether a forfeited claim is reviewable as plain error is a question of law that is reviewed de novo.” People v. Johnson, 238 Ill. 2d 478, 485, 939 N.E.2d 475, 480 (2010).
¶ 58 In Jones, the Second District found the trial court erred by ordering the defendant to pay restitution in an amount “unsupported by the evidence ***.” Jones, 206 Ill. App. 3d at 482. The Jones court further “notice[d] such error under the plain[-]error [doctrine]” because “[p]lain error may be considered where, as here, the record clearly shows that an alleged error affecting substantial rights was committed.” Id. This court has declined to follow the Second District’s decision in Jones. See People v. Hanson, 2014 IL App (4th) 130330, ¶ 36, 25 N.E.3d 1. In Hanson, this court stated the following:
“ ‘[I]t is not a sufficient argument for plain[-]error review to simply state that because sentencing affects the defendant’s fundamental right to liberty, any error committed at that stage is reviewable as plain error. Because all sentencing errors arguably affect the defendant’s fundamental right to liberty, determining whether an error is reviewable as plain error requires more in depth analysis.’ ” Id. ¶ 37. (quoting People v. Rathbone, 345 Ill. App. 3d 305, 311, 802 N.E.2d 333, 338 (2008)).
“[The restitution statute] does not mandate that the court fix the amount of restitution based upon any specific type of evidence, nor does the statute prohibit the parties from stipulating as to the proper amount (which is essentially what happened here when neither defendant nor his counsel contested the $490.82 figure). Given the specificity of the *** figure, we doubt that the State just made up that amount without any basis for requesting it. The only alleged error is the absence of some type of auto-shop receipt or testimony in the record proving that the victim incurred $490.82 in damage to her car. We cannot accept that this type of error is ‘sufficiently grave that it deprived the defendant of a fair sentencing hearing’ [citation] or such an affront to defendant’s substantial rights [citation] that it cannot be subject to forfeiture ***.” Id.
¶ 60 We initially note defendant’s plain error argument is simply the sentencing error “affects [his] fundamental right to liberty”; he fails to engage in the “more in-depth analysis” necessary to determine whether the alleged error is reviewable as plain error. Id. ¶ 37. Moreover, we find the alleged error here—the lack of some receipt or testimony in the record proving the restitution amount—was not sufficiently grave that it denied defendant a fair sentencing hearing.
2. Compliance With Section 5-5-6(f) of the Unified Code
¶ 62 Defendant also contends the trial court’s restitution order is in violation of section 5-5-6(f) of the Unified Code (
¶ 63 Section 5-5-6(f) of the Unified Code provides, in pertinent part, the trial court “shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years, *** not including periods of incarceration, within which payment of restitution is to be paid in full.”
¶ 64 The trial court’s written restitution order states the following: “Defendant shall pay all said restitution ***, in any event within five (5) years after this date, and as follows: *** full payment within 12 months after defendant’s release from imprisonment in this case.” Defendant contends the restitution order gives two conflicting dates by which the payment is to be made (i.e., (1) within five years of this date and (2) within 12 months after defendant’s release from imprisonment). However, the language containing the five-year time period is merely an attempt to incorporate the general statutory mandate that the time period cannot be “in excess of 5 years, *** not including periods of incarceration ***.”
III. CONCLUSION
¶ 66 For the reasons stated, we affirm the trial court’s judgment.
¶ 67 Affirmed.