THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. ROBERT MONTGOMERY, Defendant-Appellant.
No. 1-14-0507
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
March 15, 2016
2016 IL App (1st) 140507-U
PRESIDING JUSTICE PIERCE delivered the judgment of the court. Justices Neville and Simon concurred in the judgment.
SECOND DIVISION. 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). Appeal from the Circuit Court of Cook County. No. 13 CR 13644. Honorable Vincent M. Gaughan, Judge Presiding.
¶ 1 Held: Public defender reimbursement fee assessed after inadequate hearing vacated; methamphetamine fines not applicable to defendant‘s offense; fines and fees order corrected to reflect defendant‘s presentence custody credit toward fines; and mittimus сorrected to properly reflect defendant‘s offense.
¶ 2 Following a bench trial, defendant Robert Montgomery was found guilty of delivery of a controlled substance and sentenced to 66 months in prison. On appeal, defendant challenges
¶ 3 At trial, the evidence showed that at 11:30 a.m. on June 26, 2013, Officer Marcus Myles of the Chicago police department was undercovеr and approached defendant, who was standing on the northwest corner of West 14th Street and South Tripp Avenue. After a brief conversation, Myles asked defendant for two “blows,” a street term for heroin. Defendant ran toward a vacant lot, disappeared for 10 to 15 seconds and returned to Myles. Defendant handed Myles two clear plastic bags containing a white powdery substance in exchange for $20. Afterward, they both walked away in different directions. Myles returned to his vehicle, and via a radio transmission, he described defendant and his last known location to other officers near the scene.
¶ 4 Officer Paul Meagher received the radio transmission with the description of defendant and ultimately observed him on the 4200 block of South Roosevelt Road. Along with a partner, Meagher detained defendant. Myles came to Meagher‘s location and positively identified defendant as the individual who sold him the plastic bags containing a white powdery substance. Meagher then searched defendant and found the $20 that Myles had given him. The parties stipulated that the substance in one of the plastic bags tested positive for heroin.
¶ 5 Defendant did not testify or present other evidence on his behalf.
“THE COURT: [Defense counsel], how ma[n]y times did you appear on this case?
[DEFENSE COUNSEL]: Seven times, your Honor.
THE COURT: And there was a trial and post-trial motion, is that correct?
[DEFENSE COUNSEL]: Yes, your Honor.
THE COURT: Appropriate fees would be three hundred dollars.”
This appeal followed.
¶ 7 Before addressing the merits of dеfendant‘s appeal, we note that during its pendency, the State filed a motion to strike the portion of defendant‘s reply brief where he contended that his $5 electronic citation fee should be vacated. The State argues that defendant violated
¶ 8 On aрpeal, defendant first contends that the trial court improperly assessed him a $300 public defender reimbursement fee because it failed to inquire into defendant‘s financial circumstances and his ability to pay the fee. He further argues the fee should be vacated outright without remand. The State agrees that the court imрroperly imposed the fee and it should be vacated, but maintains that we should remand the case for a proper hearing on the fee.
¶ 9 Under
¶ 10 Whether the trial court properly conducted the hearing on the public defender reimbursement fee presents a question of law, which we review de novo. People v. Gutierrez, 2012 IL 111590, ¶ 16.
¶ 12 Consequently, the issue on appeal is the proper remedy for the trial court‘s improper imposition of the fee. The State argues the proper remedy is to remand the cause back to the trial court for a hearing properly focusing on the defendant‘s financial circumstances and his ability to pay the fee. Defendant, meanwhile, argues that because the trial court failed to inquire at all into his financial circumstances and ability to pay, no hearing occurred within 90 days of the trial court‘s final order. Accordingly, he argues, we should simply vacate the fee without remand.
¶ 13 Generally, Illinois courts have held that when no hearing at all is conducted on the public defеnder reimbursement fee, the proper remedy is to vacate the fee without remand and when an
¶ 14 In Gutierrez, 2012 IL 111590, ¶¶ 21-28, our supreme court vacated the fee outright without remand when thе circuit court clerk imposed the fee on its own. In People v. Daniels, 2015 IL App (2d) 130517, ¶¶ 29-30, this court vacated the fee without remand when the trial court imposed it by written order after defendant was already sentenced and never referenced the fee in open court. Thus, additional hearings have been deemed improper where the fee hаs been imposed against defendants absent an express ruling by the trial court in open court.
¶ 15 In Somers, 2013 IL 114054, ¶ 20, our supreme court found that three questions to the defendant concerning his employment status was insufficient to impose the fee, but constituted a hearing nonetheless, and remanded the matter for a proper hearing. Our supreme court found that “the trial court did have some sort of a hearing within the statutory time period” by inquiring into the defendant‘s employment status, and only after such inquiry did the court impose the fee. Id. ¶ 15.
¶ 16 In People v. Moore, 2015 IL App (1st) 141451, ¶ 30, we recently ruled on this same issue involving virtually the same facts occurring before the same sentencing judge. We found this limited questioning by the trial court оf only defense counsel posed, without any information, inquiry or consideration of the defendant‘s financial circumstances or potential ability to pay, did not constitute a hearing (¶¶ 38-40). We explained that in Somers, our supreme court ordered a remand for a proper hearing because the trial court asked somе, but not enough, questions directed at the defendant‘s financial circumstances. Id. ¶¶ 38-39, citing Somers, 2013 IL 114054, ¶ 14.
“Consequently, we decline the State‘s invitation to remand for a proper hearing under section 113–3.1(a) because the trial court‘s questioning the attorneys regarding the public defender‘s involvement in this case was not a hearing as articulated in Somers. There was no hearing within the 90–dаy required period, because there was no inquiry, however slight, into the issue of the defendant‘s ability to pay the public defender fee, the defendant‘s financial circumstances and his foreseeable ability to pay or the defendant‘s financial affidavit, if any. Moore, 2015 IL App (1st) 141451, ¶ 41.”
¶ 17 Thus, in Moore we found remand was only warranted when some questions were directed at the defendant‘s financial circumstances. Moore, 2015 IL App (1st) 141451, ¶ 40 citing Somers, 2013 IL 114054, ¶ 14. Because no hearing took place within ninety days we vacated the fee without remand. Moore, 2015 IL App (1st) 141451, ¶¶ 41, 44.
¶ 18 We acknowledge that the earlier decisions in People v. Williams, 2013 IL App (2d) 120094 and People v. Rankin, 2015 IL App (1st) 133409, ¶ 21, reach a different conclusion on whether the trial court in those cases conducted a sufficient hearing when imposing the public defender fee. In Williams, the court found that еven though the trial court did not inquire into the defendant‘s financial circumstances or his ability to pay the fee, because the fee was imposed
¶ 19 We respectfully differ with rulings in Williams and Rankin. In the instant case, it is without dispute that the trial court failed to inquire into defendant‘s financial circumstances, his ability to pаy the fee or his financial affidavit, if it existed. Consistent with our ruling in Moore, we vacate the public defender fee for failure to conduct a mandatory hearing within ninety days as required by
¶ 20 Next, defendant contends that his fines and fees orders should be reduced because he was improperly assessed some fines and fees, and he failed to receive presentence custody credit toward his fines. The propriety of a trial court‘s imposition of fines and fees is reviewed de novo. People v. Bowen, 2015 IL App (1st) 132046, ¶ 60.
¶ 21 We note defendant did not challenge these fines and fees issues at trial or in a posttrial motion, which generally, as previously discussed, results in a forfeiture of those issues on appeal. See Leach, 2012 IL 111534, ¶ 60. However, forfeiture itself can be forfeited by a party. See People v. Williams, 193 Ill. 2d 306, 347 (2000). By failing to argue that defendant forfeited these fines and fees issues, the State forfeited the issue of forfeiture. Id. Therefore, we address the merits of defendant‘s fines and fees claims.
¶ 23 Second, defendant argues, the State concedes, and we agree, that he must receive $5 per day of presentence custody credit toward the following: a $25 drug traffic prevention fund assessment (
¶ 24 Defendant is entitled to $5 credit for each day incarcerated prior to sentencing toward the fines levied against him.
¶ 25 Defendant also complains that his $2 Public Defender records automation assessment (
¶ 26 In sum, defendant was incarcerated for 218 days prior to his date of sentencing, resulting in a maximum $5 per day presentence custody credit of $1,090. Accordingly, we order the clerk of the circuit court to award defendant a $1,090 credit toward his fines, which totaled $1,140. Defendant, therefore, owes $50 in fines, in addition to the other assessments imposed by the trial court.
¶ 28 For the reasons stated above, we: (1) vacate defendant‘s public defender reimbursement fee of $300, without remand; (2) vacate defendant‘s $100 methamphetamine law enforcement fund fine and $25 methamphetamine drug traffic prevention fund fine; (3) order the clerk of the circuit court to modify defendant‘s fines аnd fees order to reflect his proper presentence custody credit toward his fines and to reflect $559 in total remaining assessments; and (4) order the clerk of the circuit court to correct defendant‘s mittimus to reflect his actual offense of delivery of a controlled substance.
¶ 29 Affirmed in part, vacated in part, fines and fees order corrected, mittimus corrected.