THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL HIGGINS, Defendant-Appellant.
No. 2-12-0888
Appellate Court of Illinois, Second District
June 19, 2014
2014 IL App (2d) 120888
Appellate Court
People v. Higgins, 2014 IL App (2d) 120888
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
On appeal from defendant‘s convictions for aggravated reckless driving and aggravated assault, defendant forfeited his claim that the restitution order should be vacated due to the failure to consider his ability to pay; the portion of the trial court‘s sentencing order requiring the payment of the fines and costs after restitution was paid out of defendant‘s bond money was vacated and the cause was remanded for the entry of an order requiring the fines and costs to be paid first from the bond money; and the DNA analysis assessment was properly set at $250, which was the amount in effect at the time defendant was sentenced, not the $200 in effect at the time of his offense, because the assessment was a fee, not a punishment in the form of a fine that would be subject to the prohibition against ex post facto laws; and furthermore, the trial court was directed on remand to make corrections to the judgment order, including corrections to the fines imposed by the circuit clerk that should have been imposed by the trial court.
Decision Under Review
Appeal from the Circuit Court of Kane County, No.
Judgment
Affirmed in part and vacated in part; cause remanded.
Thomas A. Lilien and Paul J. Glaser, both of State Appellate Defender‘s Office, of Elgin, for appellant.
Joseph H. McMahon, State‘s Attorney, of St. Charles (Lawrence M. Bauer and Colleen P. Price, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Panel
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices Zenoff and Birkett concurred in the judgment and opinion.
OPINION
¶ 1 Following a bench trial, defendant, Daniel Higgins, was convicted of aggravated reckless driving (
¶ 2 The following facts are relevant to resolving the issues raised here. On July 19, 2010, defendant was driving his tow truck toward Dustin and Tanika Martin. The tow truck struck Dustin, Dustin was propelled a distance away, and, when Dustin landed on the ground, he discovered that one of his front teeth was chipped. Defendant was charged with various offenses based on these and other acts, but he was convicted only of aggravated reckless driving and two counts of aggravated assault.
¶ 3 At a subsequent sentencing hearing, Margaret Martin, Dustin‘s mother, testified that she spent $350 on a “flipper” tooth for Dustin and that, based on phone calls she made, she
¶ 4 On appeal, defendant raises two issues. He argues that, because the court did not consider his ability to pay restitution and did not set a payment schedule, the order for restitution must be vacated and the cause remanded for a new hearing. Defendant also argues that his $250 DNA analysis fee must be reduced to $200, because, when he committed the crimes, the applicable statute provided for only a $200 DNA analysis fee. The State claims that, because defendant never challenged the restitution order in the trial court, he has forfeited any claim that the restitution order is improper. However, forfeiture aside, the State claims that there was ample evidence presented establishing defendant‘s ability to pay and that, in any event, the restitution order must be modified so that restitution is paid out of defendant‘s bond only after all fines, fees, and costs are satisfied. The State also contends that a $250 DNA analysis fee is proper, as the prohibition against ex post facto laws does not apply to fees. The State then argues that the various fines the clerk of the court imposed must be vacated and reimposed; that this court should remand the cause so that the trial court can clarify what it meant by a $125 “Fine Agency” assessment; and that a $20 serious-traffic-violation charge must be assessed. We address each argument in turn.
¶ 5 The first issue we address is whether the restitution order must be vacated and the cause remanded so that the trial court can assess defendant‘s ability to pay and set a payment schedule. Before considering that issue, we address the State‘s claim that the issue is forfeited, as defendant never challenged the restitution order in the trial court.
¶ 6 Ordinarily, a sentencing issue, like restitution (see People v. White, 146 Ill. App. 3d 998, 1003 (1986) (noting that restitution is an increment of the sentence)), not raised during the sentencing hearing or in a postsentencing motion results in forfeiture of that issue on appeal. See People v. Watkins, 325 Ill. App. 3d 13, 17 (2001), abrogated on other grounds by People v. Bailey, 2014 IL 115459. However, there are exceptions to this rule. One of those exceptions provides that a void sentencing order may be attacked at any time. People v. Mancilla, 331 Ill. App. 3d 35, 37 (2002). Defendant claims that the restitution order at issue here is void, because, before the court imposed the restitution order, it failed to assess defendant‘s ability to pay, and it did not set a payment schedule. Whether a sentence, or a portion of it, is void presents a question of law that we review de novo. People v. Donelson, 2011 IL App (1st) 092594, ¶ 7.
¶ 7 “Any portion of a sentence that is not statutorily authorized is void.” People v. Day, 2011 IL App (2d) 091358, ¶ 48. Thus, when a trial court exceeds its sentencing authority by
¶ 8 Because the voidness of a sentencing order, like the restitution here, is dependent on whether the court exceeded its statutory authority in imposing it, we begin by examining the relevant statute. In doing so, we are guided by the well-settled rules of statutory construction. “The primary objective in construing a statute *** is to ascertain and give effect to the legislative authority‘s intent.” People v. Martino, 2012 IL App (2d) 101244, ¶ 25. “The surest and most reliable indicator of this intent is the language of the statute *** itself.” Id. “We must construe the statute *** as a whole, giving the language its plain and ordinary meaning.” Id. “In doing so, when the language is clear and unambiguous, we must apply the statute *** without resorting to any extrinsic aids of construction.” Id.
¶ 9 Section 5-5-6(b) of the Unified Code of Corrections (Code) (
¶ 10 A restitution order is void when, for example, the court requires restitution for charges that were ultimately dismissed (see, e.g., People v. Felton, 385 Ill. App. 3d 802, 806 (2008)) or orders restitution to be paid to those who are not “victims” (see, e.g., People v. Thornton, 286 Ill. App. 3d 624, 632 (1997) (restitution order to county agency in an animal cruelty case was void, because neither dog nor county agency that cared for dog the defendant badly neglected was a “victim“)). The same cannot be said for those restitution orders that were entered without the court first considering a defendant‘s ability to pay or setting a payment schedule. See, e.g., People v. Graham, 406 Ill. App. 3d 1183, 1194 (2011) (“As for the defendant‘s argument that the trial court‘s restitution order should be set aside because the court failed to consider his ability to pay restitution and failed to specify, inter alia, a payment schedule, these objections have been forfeited by the defendant‘s failure to raise them at his sentencing hearing.“). The reason for this difference is clear. When, for example, a court orders restitution for someone who is not a “victim,” the court is acting outside of its statutory authority in that it is giving restitution to someone to whom restitution is not statutorily allowed. Thornton, 286 Ill. App. 3d at 632. In contrast, the statute does not mandate that a court assess a defendant‘s ability to pay and specify a payment schedule before imposing restitution. Graham, 406 Ill. App. 3d at 1194; see also People v. Gray, 234 Ill. App. 3d 441, 444 (1992) (section 5-5-6(f) of the Code simply “does not require any preliminary determination of defendant‘s financial capacity before ordering defendant to pay restitution“). Although assessing a defendant‘s ability to pay used to be a prerequisite, that
¶ 11 The next issue we consider is whether the court‘s order that defendant‘s bond money be used to pay restitution before it is used to pay the fines, fees, and costs must be corrected to reflect that defendant‘s bond money may be used to pay restitution only if funds are available after the bond money is applied to the fines, fees, and costs. Defendant argues that, because the State asked the court at the sentencing hearing to use defendant‘s bond to satisfy the restitution order first, the State cannot now argue that the court erred in doing so.
¶ 12 Resolution of this issue turns on an interpretation of section 5-5-6(e) of the Code (
¶ 13 Section 5-5-6(e) of the Code (
¶ 14 Because, as discussed below, this cause must be remanded for further proceedings, we direct the court to consider on remand whether to enter an order specifying that defendant‘s bond money will be used to pay restitution after his bond is applied to the fines and costs imposed. The trial court may also consider defendant‘s ability to pay and determine whether the restitution should be paid in a single payment or in installments.
¶ 15 Next, we consider whether the court should have imposed a $200 DNA analysis fee, not a $250 DNA analysis fee, because the applicable statute in effect when defendant committed the crimes provided for a $200 fee. In doing so, we observe that defendant never challenged the fee in the trial court, but the State makes no claim on appeal that the issue is forfeited. Accordingly, the State has forfeited any forfeiture argument. See People v. Williams, 193 Ill. 2d 306, 347 (2000) (“The rules of waiver are applicable to the State as well as the defendant in criminal proceedings, and the State may waive an argument that the defendant waived an issue by failing to argue waiver in a timely manner.“).
¶ 16 Turning to the merits, defendant committed his offenses on July 19, 2010, but he was not sentenced until July 12, 2012. At both times, section 5-4-3(a)(1) of the Code (
¶ 17 Although section 5-4-3(a)(1) of the Code was the same when defendant committed his crimes and when he was sentenced, section 5-4-3(j) of the Code (
¶ 18 The question becomes which fee should apply here. Defendant argues that imposing a $250 DNA analysis fee on him violates the prohibition against ex post facto laws and that, thus, the fee should be reduced to $200. The State claims that ex post facto considerations do not apply in this case, as the DNA analysis fee is not a punishment.
¶ 19 A law is ex post facto if it, among other things, increases the punishment for a previously committed offense. People v. Ramsey, 192 Ill. 2d 154, 157 (2000). Fees, which are compensatory instead of punitive, are not subject to the prohibition against ex post facto laws, but fines, which are punitive, are. People v. Dalton, 406 Ill. App. 3d 158, 163 (2010). We review de novo whether the law concerning the amount of the DNA analysis fee is ex post facto as applied to defendant. See People v. Davis, 408 Ill. App. 3d 747, 751 (2011).
¶ 20 This court, in another context, has concluded that the DNA analysis fee is a fee, not a fine. See People v. Guadarrama, 2011 IL App (2d) 100072, ¶ 13 (for purposes of sentencing credit, a DNA analysis fee is a fee and not a fine). Even though our focus in Guadarrama was not on whether a DNA analysis fee is a fine for ex post facto purposes, we see no reason why our analysis there should not be applied here. Thus, we conclude that the DNA analysis fee is a fee, and, because it is a fee, the court could impose a $250 DNA analysis fee on defendant without running afoul of the prohibition against ex post facto laws.
¶ 21 The next matter we consider concerns the issues the State raises about the various fines imposed and the absence of a serious-traffic-violation charge. Defendant indicates in his reply brief that he has no response to the State‘s arguments. Again, as these are issues of voidness, the State may raise them. See People v. Boand, 362 Ill. App. 3d 106, 138 (2005); see also People v. Montiel, 365 Ill. App. 3d 601, 606 (2006) (“We hold the defendant‘s sentence to be void to the extent it does not include required fines and fees.“).
¶ 22 Addressing these issues requires us to examine several statutes. In doing so, we are again guided by the well-settled rules of statutory construction. That is, in ascertaining the legislature‘s intent, we construe a statute as a whole, giving the statutory language its plain and ordinary meaning, and we review de novo whether the applicable statutes allowed the charges. Martino, 2012 IL App (2d) 101244, ¶¶ 25-26.
¶ 23 Moreover, in reviewing the propriety of the charges, we note, as indicated above, that a fee is a compensatory charge in that it is imposed to recoup some of the costs incurred in prosecuting a defendant. Guadarrama, 2011 IL App (2d) 100072, ¶ 9. A fine, in contrast, is a pecuniary punishment that is assessed against a defendant convicted of a crime and is part of the defendant‘s sentence. Id.
¶ 25 With these principles in mind, we turn to the fines with which the State takes issue. The fines the clerk imposed include: (1) a $60 “CR. Surcharge Stat[e]“; (2) $24 for “Driver[‘]s Education“; (3) $24 for a “Victim Fund“; and (4) $125 for “Fine Agency.” We consider the propriety of each in turn.
¶ 26 However, before doing so, we first note, as the State indicates, that the court imposed on defendant a $250 fine. As the State observes, section 5-9-1(a) of the Code (
¶ 27 Second, we consider whether the $60 “CR. Surcharge Stat[e]” is a fine that the clerk lacked the authority to impose. Section 5-9-1(c) of the Code (
¶ 28 Third, we address the $24 “Driver[‘]s Education” charge. Section 16-104a(a) of the Illinois Vehicle Code (
¶ 30 Fifth, we address the $125 “Fine Agency” assessment. Neither the State nor this court through its own research has found what statute authorizes the imposition of this charge. Accordingly, we vacate the $125 “Fine Agency” assessment, and, on remand, we direct the court to clarify on what basis this assessment was imposed and, if authorized, to cite the authority and impose a proper charge.
¶ 31 The last issue we consider is whether the trial court should have imposed a serious-traffic-violation charge. The relevant statute states that “[a]ny person who is convicted of or pleads guilty to a serious traffic violation, as defined in Section 1-187.001 of this Code, shall pay an additional fee of $20.”
¶ 32 Section 16-104d provides that the money collected from this charge is distributed to the Fire Prevention Fund in the state treasury, the Fire Truck Revolving Loan Fund in the state treasury, and the Circuit Court Clerk Operation and Administrative Fund.
¶ 33 For these reasons, we affirm the order for restitution, affirm the $250 DNA analysis fee, vacate the fines the clerk imposed, and remand this cause for the court to calculate and impose the proper charges and determine whether defendant‘s bond money will be used to satisfy the restitution award after it is applied to fines and costs.
¶ 34 Affirmed in part and vacated in part; cause remanded.