THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SANTIAGO GARCIA, Defendant-Appellant.
No. 1-13-3502
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
August 10, 2015
2015 IL App (1st) 133502-U
JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Delort and Justice Harris concurred in the judgment.
FIRST DIVISION. Appeal from the Circuit Court of Cook County. No. 12 CR 23211. Honorable Vincent M. Gaughan, Judge Presiding. NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
¶ 1 Held: Public defender fee assessed in inadequate hearing remanded for proper hearing. Fines and fees order corrected.
¶ 2 Following a 2013 bench trial, defendant Santiago Garcia was convicted of second degree murder and sentenced to 11 years’ imprisonment with fines and fees. On appeal, defendant challenges certain fines and fees – the principal being a $5,000 public defender fee – and seeks credit against others.
¶ 4 On appeal, the parties first correctly agree that we must correct defendant‘s order assessing fines and fees. He was assessed $80 in fines: $30 to fund juvenile expungement, $30 for the children‘s advocacy center, $10 for mental health court, $5 for youth diversion/peer court, and $5 for drug court.
¶ 5 The parties also correctly agree that defendant‘s $5,000 public defender fee must be vacated because the court did not comply with the statutory requirement to hold a hearing, no later than 90 days after the dispositional order, where the defendant‘s financial resources and ability to pay are assessed.
“simply impose the fee in a perfunctory manner. [Citation.] Rather, the court must give the defendant notice that it is considering imposing the fee, and the defendant must be given the opportunity to present evidence regarding his or her ability to pay and any other relevant circumstances. [Citation.] The hearing must focus on the costs of representation, the defendant‘s financial circumstances, and the foreseeable ability of the defendant to pay. [Citation.] The trial court must consider, among other evidence, the defendant‘s financial affidavit.” People v. Somers, 2013 IL 114054, ¶ 14.
¶ 7 Where the requisite hearing is not held, the public defender fee has been vacated outright with no remand. In People v. Gutierrez, 2012 IL 111590, ¶¶ 21-26, our supreme court vacated the fee without remand where the clerk of the court imposed it sua sponte. In People v. Daniels, 2015 IL App (2d) 130517, this court vacated the fee without
¶ 8 By contrast, the supreme court in Somers remanded for a new hearing on the fee, explaining:
“Clearly, then, the trial court did not fully comply with the statute, and defendant is entitled to a new hearing. Just as clearly, though, the trial court did have some sort of a hearing within the statutory time period. The trial court inquired of defendant whether he thought he could get a job when he was released from jail, whether he planned on using his future income to pay his fines and costs, and whether there was any physical reason why he could not work. Only after hearing defendant‘s answers to these questions did the court impose the fee. Thus, we agree with the State‘s contention that the problem here is not that the trial court did not hold a hearing within 90 days, but that the hearing that the court did hold was insufficient to comply with the statute.” Somers, 2013 IL 114054, ¶ 15.
¶ 9 Since, and in light of, Gutierrez and Somers, this court has remanded for a hearing in compliance with the statute in several cases where, as here, some hearing was held but that hearing was inadequate. We remanded in People v. Williams, 2013 IL App (2d) 120094, holding that:
”Somers requires only that the trial court hold ‘some sort of a hearing within the statutory time period.’ [Citation.] While the trial court in Somers asked the
defendant a few questions related to his finances, our supreme court never stated that such questioning was required for a hearing. Rather, the supreme court stated that a hearing ‘clearly’ took place [citation], implying that less would also suffice to constitute a ‘hearing.’ *** The proceeding here, while obviously insufficient to meet the requirements of section 113-3.1(a), still met this definition of a ‘hearing,’ as it was a judicial session open to the public, held to resolve defendant‘s representation by the public defender. Relatedly, the trial court imposed what it deemed to be an appropriate public defender fee. Therefore, we hold that the trial court conducted ‘some sort of a hearing’ on the issue of the public defender fee within the statutory time period.” Id., ¶ 20, quoting Somers, 2013 IL 114054, ¶ 15.
We also remanded in People v. McClinton, 2015 IL App (3d) 130109, ¶ 18, noting that the “intent of section 113-3.1 is to have a qualified defendant reimburse either the counties or the State for the cost of public defender representation. [Citation.] In light of this statutory purpose, we interpret the language broadly and find that the actions of the trial court were sufficient under Somers; it appears that some sort of a hearing was held.” We remanded in People v. Collins, 2013 IL App (2d) 110915, ¶ 25, noting that the Gutierrez court “expressly declined to address the issue of whether the 90-day period was mandatory or directory.” Most recently, we remanded in People v. Rankin, 2015 IL App (1st) 133409, ¶¶ 20-21. “As in Somers, the trial court in this case did hold an abbreviated hearing on the State‘s motion for the assessment of a fee for the defendant‘s court-appointed attorney when it asked the assistant public defender how many times that he had appeared in court.” Id., ¶ 21, citing Somers, 2013 IL 114054, ¶¶ 14-15.
¶ 11 Accordingly, we vacate the $5,000 public defender fee and remand for the court to hold a hearing compliant with section 113-3.1(a). Pursuant to
¶ 12 Affirmed in part, vacated in part, order corrected, and remanded with directions.