People v. Folks ( 2010 )

NO. 4-09-0579 Filed 12/28/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JAMES E. FOLKS, ) No. 09CF05
Defendant-Appellant. )
) Honorable
) James E. Souk,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In March 2009, defendant, James E. Folks, pleaded
guilty to unlawful use of a weapon by a felon (720 ILCS 5/24-
1.1(a) (West 2008)), and aggravated battery (720 ILCS 5/12-
4(b)(1) (West 2008)). The trial court accepted the plea and
sentenced defendant, in accordance with the plea agreement, to
nine years' imprisonment. The plea agreement had also provided
for the imposition of certain "court costs and fees," including
the $200 deoxyribonucleic-acid (DNA) analysis assessment (730
ILCS 5/5-4-3(j) (West 2008)) and a $20 Violent Crime Victims
Assistance Fund (VCVA) assessment (725 ILCS 240/10 (West 2008)).
Thereafter, the circuit clerk sent defendant notice of
the fines and court costs imposed, which included a $10 drug-
court assessment (55 ILCS 5/5-1101(d-5) (West 2008)), a $15
children's-advocacy-center assessment (55 ILCS 5/5-1101(f-5)
(West 2008)) and the $20 VCVA assessment. The $200 DNA-analysis
assessment was not imposed because, according to a handwritten
notation on the notice by perhaps a court clerk, the assessment
was "waived since sample taken in 2004." The notice and the
docket entry indicating the filing of proof that a DNA sample was
"previously taken in 2004" are initialed by "TB."
Defendant filed a motion to withdraw the guilty plea
and vacate sentence. In July 2009, the trial court denied
defendant's motion.
Defendant appealed, asserting (1) defense counsel's
certificate failed to strictly comply with Supreme Court Rule
604(d) (210 Ill. 2d R. 604(d)); (2) defendant is entitled to
vacation of the drug-court and children's-advocacy-center assess-
ments because the circuit clerk lacked the authority to impose
those fines or, in the alternative, those fines must be offset by
the $5-per-day credit for time spent in presentencing custody;
and (3) the VCVA assessment must be reduced to $4 because the
amount imposed exceeded the amount permitted by statute.
We affirm as modified. Defense counsel strictly
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complied with Rule 604(d). On defendant's remaining issues, this
court (1) vacates the circuit clerk's assessment of fines and
imposes the $10 drug-court and $15 children's-advocacy-center
fines, which are offset by credit for the time defendant spent in
presentencing custody; (2) reimposes the $200 DNA-analysis
assessment, which is offset by credit for the time defendant
spent in presentencing custody; and (3) vacates the $20 VCVA
assessment and imposes a $24 VCVA assessment.
I. BACKGROUND
In January 2009, the grand jury returned a bill of
indictment charging defendant with unlawful use of a weapon by a
felon (count I) and aggravated battery (count II). On March 24,
2009, defendant pleaded guilty to both charges, and the trial
court accepted that plea.
As reflected by the transcript of the plea hearing and
documents contained in the record, defendant signed a written
plea agreement. In the agreement, defendant agreed to plead
guilty to both counts in exchange for which the trial court would
impose a sentence of nine years' imprisonment on count I and a
concurrent five-year term of imprisonment on count II. The plea
agreement reflected the court would impose "$-0- fine, plus court
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costs and fees as authorized by law, payable as follows: $20 VCVA
and $200 DNA." The agreement also reflected defendant was
entitled to credit for 83 days already served in custody. The
court admonished defendant at the hearing that in addition to his
sentence, "there are certain mandatory fines and court costs" and
those would include the $20 VCVA assessment and $200 DNA-analysis
assessment.
After accepting defendant's plea, the trial court
immediately proceeded to sentencing and sentenced "defendant in
accordance with his plea agreement." The sentencing judgment
entered does not reflect the assessments imposed, although it
does indicate that fines and costs were due within two years of
defendant's release from custody. The sentencing judgment also
reflects defendant's credit for time served from January 1, 2009,
to March 24, 2009, which totals 82 days.
The docket entry for the combined plea and sentencing
hearing contains preprinted language, apparently stamped into the
docket, on which someone, perhaps the trial judge, added hand-
written notations. The docket entry contains the preprinted
statement "Fines, fees and costs per Supp. Order." A handwritten
notation provides "20 VCVA and 200 DNA."
On March 25, 2009, the circuit clerk sent a "Notice to
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Party" to defendant, detailing the "fine and court costs" imposed
against defendant in connection with the case. That document is
not signed by the trial judge. According to the notice, the
various assessments imposed included the $10 drug-court assess-
ment and the $15 children's-advocacy-center assessment. The DNA-
analysis assessment was listed as ".00$" Next to the statutory
citation for the DNA assessment is a handwritten notation by
someone reading as follows: "waived since sample taken in 2004."
The notice also reflects a VCVA assessment of $20. The document
contains the initials "TB," as does a March 25, 2009, docket
entry notation providing as follows: "DNA sample previously taken
in 2004, proof filed."
Thereafter, defendant filed several pro se documents
seeking to withdraw his guilty plea, including one filed April
23, 2009. The motion raised no issues pertaining to fines or
assessments imposed.
At the July 10, 2009, hearing, the trial court essen-
tially treated defendant's April 2009 pleading as an amendment to
the earlier motions to withdraw guilty plea filed by defendant.
Defendant's attorney, a different assistant public defender than
the one who represented defendant during the plea hearing,
adopted defendant's April 23, 2009, motion.
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Defense counsel tendered to the trial court a Supreme
Court Rule 604(d) certificate. The certificate was entitled
"Attorney's Certification for Motion to Reconsider Sentence,"
although no motion to reconsider had been filed and the court was
hearing the motion to withdraw guilty plea.
In the certificate, defense counsel asserted he had (1)
personally consulted with defendant regarding "this motion"; (2)
reviewed the transcripts of the report of plea of guilty proceed-
ing and sentencing hearing, as well as police reports; (3)
examined the trial court file; and (4) elected to make no modifi-
cations to the motion. At the conclusion of the hearing, the
court denied the motion to withdraw guilty plea.
This appeal followed.
II. ANALYSIS
Defendant does not challenge the denial of the motion
to withdraw guilty plea on the merits. Instead, defendant
challenges the Rule 604(d) certificate and the various assess-
ments imposed.
A. Defense Counsel Strictly Complied With Rule 604(d)
Defendant first argues the case must be remanded
because his attorney failed to strictly comply with Supreme Court
Rule 604(d) (210 Ill. 2d R. 604(d)). Specifically, defendant
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argues the Rule 604(d) certificate was insufficient because it
was entitled "Attorney's Certification for Motion to Reconsider
Sentence" and, therefore, did not apply to the motion to withdraw
guilty plea. We disagree.
Supreme Court Rule 604(d) requires that counsel repre-
senting a defendant who has pleaded guilty must file in the trial
court a certificate stating the following:
"[T]he attorney has consulted with the defen-
dant either by mail or in person to ascertain
defendant's contentions of error in the sen-
tence or the entry of the plea of guilty, has
examined the trial court file and report of
proceedings of the plea of guilty, and has
made any amendments to the motion necessary
for adequate presentation of any defects in
those proceedings." 210 Ill. 2d R. 604(d).
The certificate requirement "insure[s] that counsel has reviewed
the defendant's claim and considered all relevant bases for the
motion to withdraw the guilty plea or to reconsider the sen-
tence." People v. Shirley, 181 Ill. 2d 359, 361, 692 N.E.2d
1189, 1191 (1998). Our review is de novo. People v. Grice, 371
Ill. App. 3d 813, 815, 867 N.E.2d 1143, 1145 (2007).
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Here, counsel certified he (1) personally consulted
with defendant regarding "this motion"; (2) reviewed the tran-
scripts of the report of plea of guilty proceedings and sentenc-
ing hearing, as well as police reports; (3) examined the trial
court file; and (4) elected to make no modification to the
motion. As such, counsel fully complied with the Rule 604(d)
requirements.
Defendant asserts that the certificate is insufficient
because counsel asserted he personally consulted with defendant
regarding "this motion," which meant a nonexistent motion to
reconsider sentence as opposed to the motion to withdraw the
guilty plea. Supreme Court Rule 604(d) does not require a
particular heading. The substance of the certificate complied
with Rule 604(d). The failure to properly label the motion,
while unfortunate, does not require remand for strict compliance
with the Rule 604(d) certificate requirements.
B. This Court Imposes the $10 Drug-Court Assessment
and the $15 Children's-Advocacy-Center
Assessment and Defendant Is Entitled
to the $5-Per-Day Credit Against Those Fines
In his opening brief, defendant argued the circuit
clerk lacked the authority to impose the $10 drug-court assess-
ment (55 ILCS 5/5-1101(d-5) (West 2008)) and $15 children's-
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advocacy-center assessment (55 ILCS 5/5-1101(f-5) (West 2008))
because those assessments constituted fines. Defendant asked
that this court vacate the fines or, in the alternative, offset
the fines in the amount of $5-per-day for the days defendant
spent in custody before his transfer to the Department of Correc-
tions. See 725 ILCS 5/110-14 (West 2008) (providing for a $5-
per-day credit against fines for each day of incarceration on a
bailable offense).
The State, in its appellee's brief, agreed that the
circuit clerk lacked the authority to impose those fines but
asserted that this court may reimpose the mandatory fines. The
State also agreed that defendant was entitled to full credit
against this $10 drug-court assessment and $15 children's-
advocacy-center assessment because defendant "spent more than
seven days in custody before sentencing."
In his reply brief, defendant agreed with the State
that this court has the ability to reimpose the $10 drug-court
assessment and $15 children's-advocacy-center assessment. If
reimposed, defendant asked that those fines be offset by defen-
dant's sentence credit.
Section 5-1101 of the Counties Code grants counties the
authority to enact by ordinance (1) a $10 "fee" to be paid by the
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defendant on a judgment of guilty to be used to finance the
county mental-health court, county drug court, or both (55 ILCS
5/5-1101(d-5) (West 2008)) and (2) a mandatory children's-
advocacy-center "fee" of between $5 and $30 to be paid by the
defendant on a judgment of guilty (55 ILCS 5/5-1101(f-5) (West
2008)). The McLean County Board has enacted ordinances providing
for both "fees." See McLean County Ordinance Setting a $10.00
Fee for Drug Court (eff. September 1, 2006); McLean County
Ordinance Setting a $15.00 Fee for the Children's Advocacy Center
(eff. June 1, 2008).
Both assessments are mandatory. The statutory provi-
sion pertaining to the children's advocacy center provides that
the county board may adopt a mandatory fee. See 55 ILCS 5/5-
1101(f-5) (West 2008). Although the statutory language relating
to the drug-court assessment is permissive, the assessment is
mandatory once the county board enacts the ordinance. People v.
Price, 375 Ill. App. 3d 684, 701, 873 N.E.2d 453, 468 (2007).
Although identified as "fees" in the statute, the drug-
court and children's-advocacy-center assessments have been found
to constitute "fines." A fee compensates the State for costs
incurred as a result of prosecuting a defendant whereas a fine
does not. People v. Sulton, 395 Ill. App. 3d 186, 193, 916
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N.E.2d 642, 648 (2009). Here, both the drug-court and
children's-advocacy-center assessments are fines as neither
compensates the State for costs incurred as a result of the
prosecution of defendant. See Sulton, 395 Ill. App. 3d at 192-
93, 916 N.E.2d at 647-48 (citing factors in determining whether
the drug-court assessment was a cost of prosecution and finding
the assessment was a fine); People v. Jones, 397 Ill. App. 3d
651, 664, 921 N.E.2d 768, 778 (2009) (finding the children's-
advocacy-center assessment was a fine), appeal pending (March
Term 2010).
Because the drug-court and children's-advocacy-center
assessments are fines, those assessments cannot be imposed by the
circuit clerk. See People v. Swank, 344 Ill. App. 3d 738, 747,
800 N.E.2d 864, 871 (2003) (holding that "[t]he imposition of a
fine is a judicial act" and the clerk of the court has no power
to levy fines). In this case, who imposed those mandatory fines
is unclear. Before accepting defendant's plea, the court admon-
ished defendant that his sentence would include "certain manda-
tory fines and court costs" and those would include the VCVA
assessment and DNA-analysis assessment. The March 24, 2009,
docket entry also reflects that defendant's sentence included
fines per a supplemental order. No supplemental order is con-
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tained in the record. Whether the "Notice to Party" was intended
to be the supplemental order is not clear from the record.
Further, the notice to party is not reflected as having been
filed on the docket sheet, but it is filed stamped. Neither is
it signed by the judge. The notice to party is initialed by
"TB," who appears to be a clerk. The record contains no other
document that can be construed as a supplemental order imposing
fines.
Moreover, the trial court indicated at the plea and
sentencing hearing that it had sentenced defendant in accordance
with the plea agreement. The plea agreement provided for no fine
"plus court costs and fees." See, e.g., People v. Evangelista,
393 Ill. App. 3d 395, 401, 912 N.E.2d 1242, 1247 (2009) (wherein
the court ordered no fines imposed; the appellate court found
that VCVA assessment was mandatory and the clerk could not impose
that fine on the court's behalf). However, the reference to "no
fine" likely referred to the fine provided for in section 5-9-1
(a)(1) of the Unified Code of Corrections (Corrections Code) (730
ILCS 5/5-9-1(a)(1) (West 2008) (providing for a fine for a felony
of $25,000 or the amount specified in the offense, whichever is
greater)). The court also admonished defendant, before accepting
his plea, that in addition to his sentence, "there are certain
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mandatory fines and court costs."
As the parties note, this court may reimpose mandatory
fines. See Evangelista, 393 Ill. App. 3d at 401, 912 N.E.2d at
1247 (reimposing the mandatory VCVA assessment). The record is
not clear whether the trial court imposed those mandatory fines.
Assuming the circuit clerk in fact imposed those fines, we vacate
the circuit clerk's fines and impose the $10 drug-court assess-
ment and $15 children's-advocacy-center assessment. Defendant is
entitled to the $5-per-day credit against the drug-court and
children's-advocacy-center fines. See 725 ILCS 5/110-14 (West
2008); Jones, 397 Ill. App. 3d at 664, 921 N.E.2d at 778 ($5-per-
day credit applies to the children's-advocacy-center fine);
Sulton, 395 Ill. App. 3d at 193, 916 N.E.2d at 648 (finding the
issue of monetary credit may be raised for the first time on
appeal, and the defendant was entitled to the $5-per-day credit
against the drug-court assessment).
C. The $20 VCVA Assessment Must Be Vacated
and Reimposed in the Amount of $24
Defendant last argues that the VCVA assessment must be
reduced from $20 to $4. The State argues the VCVA assessment is
void and the correct VCVA assessment is $24.
Section 10 of the Violent Crime Victims Assistance Act
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provides for a penalty to be collected from each defendant
convicted of a felony. 725 ILCS 240/10(b) (West 2008). If no
other fines are imposed, the penalty to be collected is $25 for
crimes of violence and $20 for any other felony. See 725 ILCS
240/10(c)(1), (c)(2) (West 2008). If other fines are imposed,
the penalty is "$4 for each $40, or fraction thereof, of fine
imposed." 725 ILCS 240/10(b) (West 2008). The VCVA assessment
is not subject to the $5-per-day credit provided in section 110-
14(a) of the Code of Criminal Procedure of 1963 (Criminal Code)
(725 ILCS 5/110-14(a) (West 2008)). See People v. Mingo, 403
Ill. App. 3d 968, 973, 936 N.E.2d 1156, 1160 (2010).
Defendant argues that because other fines were im-
posed--the $10 drug-court assessment and the $15 children's-
advocacy-center assessment--the VCVA assessment must be reduced
to $4. In response, the State argues the trial court imposed the
$200 DNA-analysis assessment and the circuit clerk lacked the
authority to waive the DNA-analysis assessment. The State argues
this court should reimpose the $200 DNA-analysis assessment. In
such case, defendant's fines would total $225, and the VCVA
assessment would total $24.
In his reply brief, defendant argues this court lacks
jurisdiction to address the State's argument because (1) the
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State is not authorized under Supreme Court Rule 604(a) (210 Ill.
2d R. 604(a)) to appeal the failure to impose a missing fine, and
(2) the absence of the DNA-analysis assessment does not render
the sentence void. Defendant further argues the State forfeited
the issue.
The trial court imposed the DNA-analysis assessment as
indicated in the transcript of the plea/sentencing hearing. The
court specifically recited the term of the plea agreement that
the DNA-analysis assessment would be imposed. At the conclusion
of the hearing, the court noted having "sentenced the defendant
in accordance with his plea agreement." See, e.g., People v.
Thurston, 255 Ill. App. 3d 512, 514-15, 626 N.E.2d 426, 427
(1994) (providing that the appellate court may examine the oral
pronouncement of a sentence and the written sentencing order
entered the same day when ascertaining the terms of the sen-
tence). The docket entry also reflects the imposition of the
DNA-analysis assessment. Nothing in the record indicates the
court itself actually rescinded that order.
Presumably, the circuit clerk reduced the DNA-analysis
assessment to zero, but the clerk lacked the authority to do so.
See, e.g., Swank, 344 Ill. App. 3d at 747-48, 800 N.E.2d at 871
("[t]he imposition of a fine is a judicial act"). As such, the
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reduction of the DNA-analysis assessment to zero is void, and the
State can raise the issue in response to defendant's argument
that the VCVA assessment must be reduced. See, e.g., People v.
Malchow, 193 Ill. 2d 413, 429-30, 739 N.E.2d 433, 443 (2000)
(finding that State was allowed to challenge a sentence on
appeal; sentence below the minimum term established by the
legislature was void). Moreover, the State did not forfeit the
issue because defendant never raised his objection to the amount
of the VCVA assessment in the trial court.
Finally, defendant argues that section 5-4-3 of the
Corrections Code (730 ILCS 5/5-4-3 (West 2008)) does not require
redundant DNA sampling and fees.
However, the plea agreement specifically provided for
the imposition of the DNA-analysis assessment. See, e.g., People
v. Snyder, 387 Ill. App. 3d 1094, 1102, 904 N.E.2d 625, 631-32
(2009) (finding the defendant was not entitled to an additional
day of sentence credit where she bargained for her sentence and
acquiesced in the sentence imposed). Consequently, this court
concludes that the trial court did not err by imposing the $200
DNA-analysis fee and the circuit clerk erred by reducing that fee
to zero. Therefore, this court reimposes the DNA-analysis fee of
$200 imposed by the trial court. The DNA-analysis assessment is
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a fine and is subject to credit under section 110-14 of the
Criminal Code (725 ILCS 5/110-14(a) (West 2008)). People v.
Long, 398 Ill. App. 3d 1028, 1034, 924 N.E.2d 511, 517 (2010).
Because other fines were imposed--the DNA-analysis, drug-court,
and children's-advocacy-center assessments--and total $225, we
vacate the $20 VCVA assessment and impose a VCVA assessment of
$24.
This court recognizes the morass of fines, fees, and
costs created by the legislature. The calculation of these sums
is a monumental feat which has commonly been accomplished by the
clerk after the sentencing, in the clerk's office with the aid of
computers. The wording of much of the legislative language would
seem to indicate that the clerk is responsible for assessing
and/or collecting not only the fees and costs, but also the
fines. See, e.g., 705 ILCS 105/27.3a(1) (West 2008) (document-
storage fee; the county board may require the circuit clerk to
collect a document fee to be charged and collected by the clerk
of the court); 705 ILCS 105/27.1a (West 2008) (circuit clerk fee;
providing that "the clerk of the circuit court must charge the
minimum fee"); 725 ILCS 240/10(b) (West 2008) (VCVA assessment;
providing that the penalty "shall be collected by the [c]lerk of
the [c]ircuit [c]ourt in addition to the fine and costs in the
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case"); 730 ILCS 5/5-4-3(j), (k)(2) (West 2008) (DNA-analysis
assessment; providing that the defendant "shall pay an analysis
fee of $200" and providing "[a]ll fees shall be collected by the
clerk of the court"). Further complicating the computations are
recent cases which have recharacterized many fees as fines,
thereby eliminating the clerk's authority to impose the assess-
ments.
This court also recognizes the daily dilemma faced by
the court and clerks, even for those who have staff and computers
to support the prompt assessment of the multitude of specific
fines, fees, and costs in the courtroom with the defendant
present. The myriad of legislative requirements and the complex-
ity of their precise application based on a number of legislative
and situational variables make the task immensely difficult. The
possibility of error because of the complicated nature of the
assessment process is high and is of great concern to the court
and to the elected court clerks in the 102 counties in the state
of Illinois.
The current situation calls for a comprehensive legis-
lative revision in the assessment of fines, fees, costs and the
$5-per-day credit for time spent in custody prior to sentencing.
The judicial and clerical time expended on accurate calculation
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of the precise assessment of these monies, much of which may
never be collected, is phenomenal. In the interim, the current
"Notice to Party" form could be utilized in the courtroom and on
the record and signed by the presiding judge after the defendant
is admonished that the specific mandatory and discretionary fines
will be imposed in addition to any unspecified clerk's fees and
costs.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment as modified. This court (1) vacates the circuit clerk's
assessment of fines and imposes the $10 drug-court and $15
children's-advocacy-center fines, which are offset by credit for
the time defendant spent in presentencing custody; (2) reimposes
the $200 DNA-analysis assessment, which is offset by credit for
the time defendant spent in presentencing custody; and (3)
vacates the $20 VCVA assessment and imposes a $24 VCVA assess-
ment.
Affirmed as modified.
KNECHT and POPE, JJ., concur.
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