THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. BRIAN N. WYNN, Defendant-Appellant.
No. 2-12-0575
Appellate Court of Illinois, Second District
December 26, 2013
2013 IL App (2d) 120575
Appellate Court
People v. Wynn, 2013 IL App (2d) 120575
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.)
In an appeal challenging the fines, fees, and costs imposed on defendant, the appellate court first vacated the Children‘s Advocacy Center fine as imposed by the clerk of the circuit court and then the court reimposed that fine; defendant was entitled to a $5-per-day credit against his fines for his presentence custody, and that credit applied to the Children‘s Advocacy Center fine, the drug court/mental health court fee, State Police operations assessment, the domestic violence fine, the juvenile expungement fine, and the court system finance fee; the $25 Violent Crime Victims Assistance Fund fine was vаcated and a $32 fine was imposed in its place, but that fine is not subject to the $5-per-day credit; the appellate court did not consider the public defender fee, as it lacked jurisdiction in the absence of an appeal from the order imposing that fee; and the cause was remanded for a reduction of the probation fees to reflect the time defendant was supervised and for recalculatiоn of the delinquency fee to reflect the modification of the other fines and fees.
Decision Under Review
Appeal from the Circuit Court of Lake County, No. 11-CF-1480; the Hon. James K. Booras, Judge, presiding.
Affirmed as modified in part and vacated in part; cause remanded.
Counsel on Appeal
Thomas A. Lilien and Jaime L. Montgomery, both of State Appellate Defender‘s Office, of Elgin, for appellant.
Michael G. Nerheim, State‘s Attorney, of Waukegan (Lawrence M. Bauer and Matthew J. Schmidt, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Panel
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Hutchinson and Jorgensen concurred in the judgment and opinion.
OPINION
¶ 1 Pursuant to a negotiated plea agreement, defendant, Brian N. Wynn, pleaded guilty to domestic battery (enhanced) (
¶ 2 I. BACKGROUND
¶ 3 The following facts are relevant to resolving the issues raised on appeal. In June 2011, defendant was charged with aggravated domestic battery (
¶ 4 Five months later, the State petitioned to revoke defendant‘s probation, because defendant failed to comply with his probationary terms. For example, the State alleged that defendant had been arrested for aggravated battery to a child, aggravated battery, and domestic battery. While the petition to revoke was pending, defendant‘s attorney advised the court that defendant was on probation from September 2, 2011, until January 25, 2012, which is when he was arrested for having committed these new crimes.
¶ 5 Following a hearing on the petition, which was held on March 16, 2012, the court revoked defendant‘s probation, and the court sentenced him to three years’ imprisonment on May 15, 2012. Defendant moved to reconsider, and the court reduced defendant‘s sentence to 2½ years. Defense counsel noted that defendant had been in custody for 235 days, and she asked that defendant receive a “$5 a day credit towards the statutory fines.” The court said that “[it] will award [that], yes.” According to the supplemental record submitted to this court, defendant was not given this credit, and he was assessed a delinquency fee of $718.3 Defendant filed a notice of appeal on May 22, 2012.
¶ 6 II. ANALYSIS
¶ 7 On appeal, defendant raises several issues related to the fines and fees imposed against him. Specifically, he argues that (1) the clerk of the court could not impose the $5 Children‘s Advocacy Center fine; (2) he is entitled to a $5 credit against his fines for each day he served in presentencing custody; (3) the public defender fee the court imposed must be vacated because, before assessing that fee, the court failed to hold a hearing on defendant‘s ability to pay; (4) any probation fees charged for the time defendant was not serving probation must be vаcated; and (5) the delinquency fee assessed against him must be vacated, as it is based on an incorrect
¶ 8 Before addressing these issues, we note that defendant never raised in the trial court any issue related to the fines and fees imposed. He claims that he may take issue with them now, because void orders may be attacked at any time. See People v. Martino, 2012 IL App (2d) 101244, ¶ 17. As noted, the State concedes that defendant may raise these issues, except for the public defender fee, for the first time on appeal. Accordingly, we will address each of the issues, and, in so doing, we will consider whether this court has jurisdiction over the public defender fee. See id. Moreover, we observe that, because the issues raised concern pure questions of law, including the construction of a statute, our review is de novo. See id. ¶¶ 21, 26; People v. Carter, 392 Ill. App. 3d 520, 523 (2009) (courts employ a de novo standard of review when the issues raised concern questions of law and there are no disputed factual issues).
¶ 9 A. Children‘s Advocacy Center Fine
¶ 10 The first issue we address is whether thе clerk of the circuit court could impose the $5 Children‘s Advocacy Center fine. The Children‘s Advocacy Center fine is a mandatory fine. See
¶ 11 B. Credit
¶ 12 We next address whether defendant is entitled to a $5-per-day credit against his fines for the time he spent in presentencing custody. Section 110-14(a) of the Code of Criminal Procedure of 1963 (Code) (
“Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. However, in no case shall the amount so allowed or credited exceed the amount of the fine.”
Id.
Here, defendant was in custody for at least 115 days. Thus, defendant is entitled to a credit of at least $575 against those fines to which section 110-14(a) aрplies.
¶ 13 Defendant argues that he is entitled to this credit for the following assessments: (1) the $5 Children‘s Advocacy Center fine; (2) the $5 drug court/mental health court fee; (3) the $10 specialty court fee; (4) the $7 State Police operations assessment; (5) the $200 domestic violence fine; (6) the $30 juvenile expungement fine; and (7) the $50 court system finance fee. Our supreme court has concluded that a drug court/mental health court assessment, though labeled a fee (see
¶ 14 What is less clear is whether the $30 juvenile expungement fine and the $50 court finance fee are also subject to the $5-per-day credit. Although no other court has looked at whether these charges are actually fines or fees, defendant claims that they are fines, and the State concedes that they are.
¶ 15 In determining whether a charge is a fine or a fee, the most important factor “is whether the charge seeks to compensate the state for any costs incurred as the result of prosecuting the defendant.” Graves, 235 Ill. 2d at 250. A “fine,” which is punitive, seeks to penalize a defendant who has been convicted of a crime. Id. In contrast, “[a] charge is a fee if and only if it is intended to reimburse the state for some cost incurred in [the] defendant‘s prosecution.” People v. Jones, 223 Ill. 2d 569, 600 (2006).
¶ 16 The juvenile expungement fine was imposed pursuant to section 5-9-1.17 of the Unified Code of Corrections (Unified Code) (
¶ 17 The $50 court system finance fee was imposed pursuant to section 5-1101(c)(1) of the Counties Code (
¶ 18 Accordingly, the $5 Children‘s Advocacy Center fine; the $5 drug court/mental health court fee; the $10 specialty court fee; the $7 State Police operations assessment; the $200 domestic violence fine; the $30 juvenile expungement fine; and the $50 court system finance fee, which fines total $307, must be fully credited for the time defendant served in custody before sentencing.
¶ 19 C. Violent Crime Victims Assistance Fund Fine
¶ 20 In the opening paragraph of the argument portion of defendant‘s brief, he claims that his $25 Violent Crime Victims Assistance Fund fine is improper. Nowhere in the substance of his argument does defendant elaborate on this point. In its brief, the State agrees with defendant and proposes that defendant‘s $25 fine be vacated and that a $32 fine be imposed instead.5
¶ 21 Section 10 of the Violent Crime Victims Assistance Act (
“(b) *** [T]here shall be an additional penalty collected from each dеfendant upon conviction *** of $4 for each $40, or fraction thereof, of fine imposed. ***
(c) When any person is convicted in Illinois *** of an offense listed below *** and no other fine is imposed, the following penalty shall be collected by the Circuit Court Clerk:
(1) $25, for any crime of violence as defined in subsection (c) of Section 2 of the Crime Victims Compensation Act; and
(2) $20, for any other felony or misdemeanor, excluding any conservation offense.” (Emphasis added.)
725 ILCS 240/10(b) ,(c) (West 2010).
¶ 22 Here, as indicated above, the trial court imposed many fines in addition to the Violent Crime Victims Assistance Fund fine. Thus, it was improper for the court to charge defendant a $25 Violent Crime Victims Assistance Fund fine under section 10(c).
¶ 23 Instead, under section 10(b), the court should have imposed a fine of $4 for each $40 or fraction thereof of other fines imposed. Accepting that the $307 in fines listed above are the only charges characterized as fines in this case (see Martino, 2012 IL App (2d) 101244, ¶ 54), we determine that defendant‘s Violent Crime Victims Assistance Fund fine should be $32, as $307 divided by $40 is 7.65, and 8 (which represents each $40 in fines or fraction thereof) multiplied by $4 is $32. Id.
¶ 24 Accordingly, we vacate the $25 Violent Crime Victims Assistance Fund fine and impose a $32 fine in its place. Id. ¶ 56. In doing so, we note that this fine is not subject to the $5-per-day credit. See
¶ 26 Section 113-3.1(a) of the Code (
¶ 27 Before we could address whether a proper hearing was conducted in this case, we must consider whether this court has jurisdiction to consider this issue. The State claims that this court lacks jurisdiction over this issue, because defendant did not file a timely appeal from the probation order that set the public defender fee.
¶ 28 Instructive on the issue of this court‘s jurisdiction is People v. Morrison, 298 Ill. App. 3d 241 (1998). There, the defendant pleaded guilty to attempted aggravated criminal sexuаl abuse (
¶ 29 On appeal, the defendant argued for the first time, among other things, that the $350 public defender fee must be vacated, because the court never held a hearing on the defendant‘s ability to pay. Id. at 243-44. The appellate court determined that it lacked jurisdiction to consider whether the public defender fee was properly imposed. Id. at 244. In so holding, the court observed:
“Jurisdiction to consider errors arising under a particular judgment of the trial court is conferred on the appellate court by the timely filing of a notice оf appeal. [Citation.] If the defendant fails to appeal from the judgment, this court has no authority to review a claim of error unless the judgment was void, in which case the error may be corrected at any time. [Citation.] An appeal from a sentence entered upon revocation of probation does not revive voidable errors in guilty plea proceedings. [Citation.]” Id.
With regard to the public defender fee in particular, the court noted that “[t]he trial court‘s failure to conduct a hearing prior to ordering reimbursement does not defeat its jurisdiction, but constitutes an erroneous exercise of power.” Id. Thus, “a reimbursement order entered without a hearing is voidable, not void.” Id. Because the defendant failed to timely appeal the public defender fee when it was imposed, the court found that it lacked jurisdiction to considеr it. Id.
¶ 30 Here, as in Morrison, the order providing that defendant pay a public defender fee was, at most, voidable. Thus, for this court to consider whether the fee was properly imposed, defendant had to timely appeal from the order imposing it. Defendant did not. See Ill. S. Ct. R. 606(b) (eff. Mar. 20, 2009). Accordingly, this court lacks jurisdiction to rectify any error that
¶ 31 E. Probation Fees
¶ 32 Section 5-6-3 of the Unified Code (
¶ 33 Here, the parties agree, and the record reflects, that defendant was not actively supervised by the probation department for the entire 18 months of his рrobation. Accordingly, because we do not know for how long defendant was supervised, we, as the parties suggest, remand for the appropriate reduction of probation fees.
¶ 34 F. Delinquency Fee
¶ 35 Section 27.2(gg) of the Clerks of Court Act (
“Unless a court ordered payment schedule is implemented or the fee requirements of this Section are waived pursuant to court order, the clerk of the court may add to any unpaid fees and costs under this Section a delinquency amount equal to 5% of the unpaid fees that remain unpaid after 30 days, 10% of the unpaid fees that remain unpaid after 60 days, and 15% of the unpaid fees that remain unpaid after 90 days.”
Id.
¶ 36 Here, the parties agree that defendant was assessed a delinquency fee of $718. This fee was based on the total amount of fines and fees imposed, i.e., $2,394. Because this amount does not take into consideration the $5-per-day credit and the reduced probation fees, we must remand for the circuit clerk to recalculate any delinquency fee based upon the modified amount of fines and fees.
¶ 37 G. Summary of Fines and Fees
¶ 38 In conclusion, we determine that $307 must be credited against defendant‘s fines for the time he served in custody before sentencing and that defendant‘s Violent Crime Victims Assistance Fund fine must be $32. We vacate the probation and delinquency fees and remand the cause for recalculations. We also determine that, because we lack jurisdiction to consider defendant‘s public defender fee, we cannot modify it in any way.
¶ 39 III. CONCLUSION
¶ 40 For the above-stated reasons, the judgment of the circuit court of Lake County is affirmed as modified in part and vacated in part, and the cause is remanded for further proceedings
¶ 41 Affirmed as modified in part and vacated in part; cause remanded.