People v. Warren , 2014 IL App (4th) 120721 ( 2014 )

2014 IL App (4th) 120721 Opinion filed June 6, 2014
Modified upon denial of
NO. 4-12-0721
rehearing August 29, 2014
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
JOSEPH W. WARREN, ) No. 11CF443
Defendant-Appellant. )
) Honorable
) Heidi N. Ladd,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court, with opinion.
Presiding Justice Appleton and Justice Pope concurred in the judgment and
opinion.
OPINION
¶1 Following a May 2012 trial, the jury found defendant guilty of unlawful possession
with the intent to deliver a controlled substance, a Class 1 felony (720 ILCS 570/401(c)(2) (West
2010)) (count I), and unlawful possession of a weapon by a felon, a Class 3 felony (720 ILCS
5/24-1.1(a), (e) (West 2010)) (count II). In July 2012, the trial court sentenced defendant to a
30-year term on count I and a concurrent 10-year term on count II. Defendant appeals, arguing
(1) the State failed to produce sufficient evidence to sustain his conviction on count I; (2) he is
entitled to a vacation of certain assessments imposed pursuant to his conviction; and (3) he is
entitled to additional sentencing credit for time served. We affirm in part, vacate in part, and
remand with directions.
¶2 I. BACKGROUND
¶3 On March 21, 2011, the State charged defendant with unlawful possession with
intent to deliver a controlled substance and unlawful possession of a weapon by a felon. The
charges arose from a traffic stop and later search of a hotel room rented by defendant.
¶4 A. The Traffic Stop
¶5 On March 18, 2011, Officer Jeremiah Christian of the Champaign police
department, who was assigned to the Community Action Team, observed defendant driving a
green Oldsmobile Bravada. Upon recognizing defendant as the driver, Officer Christian
"conducted surveillance to see where [defendant] was going." Officer Christian followed
defendant to the Red Roof Inn on Anthony Drive. Officer Christian observed defendant exit his
vehicle and enter a guest room at the hotel. Officer Christian then left the area to meet with other
members of the Community Action Team.
¶6 The team formulated a plan to return to the area around the hotel to continue
surveillance on defendant's activities. If defendant was observed leaving the hotel, an officer
would follow and wait for defendant to commit a violation of the Illinois Vehicle Code (625 ILCS
5/1-100 to 20-402 (West 2010)). The officers would then stop the vehicle and further their
investigation.
¶7 Officer Christian returned to the hotel to continue his surveillance. At some point
during his surveillance, Officer Christian observed defendant return to the Oldsmobile Bravada.
He was accompanied by a white female, later identified as Kimberly Rosas. Defendant drove the
vehicle away from the hotel and headed toward Neil Street. Officer Christian went to hotel
management to see whether defendant had rented a room at the hotel. Officer Christian learned
defendant had been renting a room at the hotel since March 8, 2011. The rental agreement listed
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only defendant's name. Officer Christian then went to the room and stood watch to ensure
nobody entered or left the room. Shortly thereafter, Officer Phillip McDonald observed
defendant commit a traffic violation while turning right onto Neil Street, and initiated a traffic stop
at the intersection of Neil Street and Interstate 74. Several other Champaign police officers,
including Katherine Thompson, Marshall Henry, and Robert Sumption, arrived on the scene to
provide backup.
¶8 Officer McDonald approached the vehicle and asked defendant to shut off the car.
He detected an odor of cannabis emanating from the vehicle. Officer Henry also detected the
odor of cannabis. Because the officers detected the odor of cannabis, Officer McDonald asked
defendant to step out of the vehicle so it could be searched. Defendant responded by attempting to
lock the driver's door and reaching for the key still in the ignition. Officer McDonald then
reached inside the car and grabbed defendant's arm. Officer Henry assisted Officer McDonald in
removing defendant from the vehicle. After the officers removed defendant from the vehicle, a
lengthy struggle ensued and defendant resisted the officers' attempts to place him under arrest.
¶9 During this struggle, Officer Sumption asked Rosas whether anything illegal was
located inside the car. At first she indicated there was not, but she later informed the officer a gun
was in her purse. This prompted Officer Sumption to draw his weapon and point it at Rosas.
Officer Sumption relayed this information to the other officers at the scene. Officer Sumption
then removed Rosas from the vehicle and placed her under arrest. She was escorted to the
backseat of Officer Thompson's squad car. Officer Sumption removed the gun from Rosas's
purse and determined the gun was loaded with a magazine containing six rounds of .25-caliber
ammunition. He also determined no rounds were in the weapon's chamber. While sitting in the
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backseat, Rosas told Officer Sumption defendant carried the purse containing the handgun to the
vehicle.
¶ 10 B. Rosas's Postarrest Interview
¶ 11 As Officer Thompson escorted Rosas to her police car, she asked Rosas whether
she had anything "crotched," meaning concealed within her undergarments or inside her vaginal or
anal cavity. Rosas stated she did not. While seated in the back of the police car, Rosas told
Officer Sumption that defendant carried the gun in her purse to the car. Rosas told Officer
Sumption approximately half an ounce of crack cocaine was located in the hotel room. Rosas was
then transported to the Red Roof Inn to confirm the location of the room in which she and
defendant had been staying.
¶ 12 Officer Thompson transported Rosas to the Champaign police department to speak
with Officer McDonald. After being informed of and waiving her Miranda rights (Miranda v.
Arizona, 384 U.S. 436 (1966)), Rosas stated she had a current addiction to crack cocaine. Officer
McDonald inquired about the gun recovered during the traffic stop. Rosas stated defendant had
the gun in his waistband until Officer McDonald initiated the traffic stop, when defendant placed
the handgun in Rosas's purse.
¶ 13 Rosas then expressed her concern over going to jail. After Officer McDonald
assured Rosas she would not go to jail, Rosas stated, "I'll do anything that you want me to do. I'll
be helpful, you know, as long as I don't go to jail." Rosas then detailed the drug-dealing operation
defendant was running from the hotel room. Defendant would bring large quantities of crack
cocaine to the room and break it down for sale. He used a black scale to assist him in breaking
down the product. Defendant would then package the individual pieces for sale. Once packaged
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for sale, defendant would place the individually wrapped pieces of crack cocaine in a plastic bag
and "go deal."
¶ 14 Rosas believed defendant was bringing at least four ounces of crack cocaine to the
room per day to package for sale. She further believed at least a half-ounce of crack cocaine
would be found in defendant's black duffel bag inside the room and more would be found outside
the hotel room.
¶ 15 Rosas then asked to use the restroom. Officer Thompson, who stood by during the
interview, escorted Rosas to the restroom. While there, Rosas told Officer Thompson she had
crack cocaine concealed inside her vagina. Officer Thompson looked into the toilet and observed
a plastic bag containing what appeared to be individually packaged pieces of crack cocaine.
Officer Thompson informed Officer McDonald of what she discovered.
¶ 16 Rosas returned to the interview room, where Officer McDonald was to take a
statement regarding the crack cocaine discovered during Rosas's bathroom break. When asked
how the crack cocaine came to be concealed within her vagina, Rosas initially told Officer
McDonald that defendant physically placed the cocaine inside her vagina just before the traffic
stop. Rosas assured Officer McDonald she was being truthful. Rosas stated this was her first
time out dealing with defendant. She also stated defendant wanted her to accompany him because
he had the gun, but she was not sure whether he wanted her there to take blame for the gun.
¶ 17 After about 15 minutes, Officer McDonald again asked Rosas to speak with him.
Officer McDonald sought clarification as to how the crack cocaine came to be concealed within
Rosas's vagina. This time, Rosas stated defendant handed her the bag containing crack cocaine
and ordered her to conceal it in her vagina just before the traffic stop. Defendant told her she
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would be sorry if she did not do so. Rosas then placed the crack cocaine inside her vagina.
Additionally, Rosas told police the last time she smoked crack was just before she and defendant
were arrested.
¶ 18 C. Search of the Hotel Room
¶ 19 After Rosas was interviewed, she was asked to swear to an affidavit in support of a
search warrant. The affidavit stated Rosas was with defendant when his Oldsmobile Bravada was
stopped. At the time of the stop, defendant removed a weapon, which belonged to him, from his
waistband and placed it into Rosas's purse. Defendant was the registered occupant of room 258 at
the Red Roof Inn on Anthony Drive in Champaign, Illinois, and currently possessed
approximately half an ounce of crack cocaine there in a black leather duffel bag. Defendant had
been using the room for one to two weeks to package cocaine he later distributed. Defendant was
selling approximately four ounces of cocaine per day.
¶ 20 According to Officer Thompson, she transported Rosas to the Schnuck's parking lot
in Savoy, Illinois. While there, Rosas swore to her affidavit in front of a judge. The judge issued
the warrant. Officer Thompson transported Rosas back to the Champaign County jail where she
was booked for the possession of the drugs concealed within her vagina.
¶ 21 Armed with a search warrant, the officers searched the hotel room. During the
course of the search, several items of evidentiary value were seized. Officers seized a silver
Compaq laptop computer, its charging chord, and a speaker system, which were all located on a
nightstand next to the bed; a certificate of title for a 1997 Oldsmobile Bravada issued to defendant,
found in a duffel bag later determined to belong to defendant; a rental receipt from the Red Roof
Inn naming defendant as the sole person who rented the room, which was found on the nightstand;
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a blank check belonging to defendant, found in the same duffel bag as the certificate of title; an
Illinois identification (ID) card issued to defendant, which was found in a pair of men's jeans lying
on the floor underneath the sink; and a prescription bottle containing pseudoephedrine for
defendant, which was found on the counter next to the sink.
¶ 22 The officers also seized a velvet Crown Royal bag containing five live rounds of
.25-caliber ammunition, which was found in a dresser drawer (at trial, Rosas testified the drawer
also contained defendant's clothing, but defendant denied the items were his and testified they
belonged to Rosas); a black digital scale, which was located under the Crown Royal bag; a box of
plastic sandwich Baggies, which was found on top the microwave; numerous empty plastic
Baggies with both bottom corners removed, which were found in the garbage can near the
bathroom; 17 individual "corner Baggies" containing crack cocaine, all of which were found in a
wadded-up paper towel in the garbage can; and two glass crack pipes and one metal crack pipe.
¶ 23 D. Defendant's Motion To Suppress Under Franks v. Delaware
¶ 24 On November 14, 2011, defendant filed a motion to suppress evidence under
Franks v. Delaware, 438 U.S. 154 (1978), seeking to exclude from evidence the items seized from
the hotel room. In support of his motion, defendant attached three affidavits—his own, one
drafted by Cora Holland, and one purportedly drafted and signed by Rosas. The first part of
Rosas's affidavit to support defendant's motion to suppress contained argumentative statements
about the lawfulness of the search itself. Rosas's affidavit goes on to state she felt coerced to
answer the police's questions at the scene of the traffic stop. The affidavit states she was coerced
into implicating defendant for possession of the weapon and the drugs in the hotel room.
¶ 25 Rosas's affidavit stated defendant was not in possession of the weapon at any time
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and it did not belong to him. Defendant was not aware Rosas had the weapon in her purse.
Defendant was not in possession of any drugs and was unaware Rosas had drugs on her or in the
hotel room. While some of defendant's possessions were in the hotel room, he would only come
by occasionally to shower and change clothes. Defendant rented the room at the hotel because
Rosas did not have a State ID card.
¶ 26 Rosas's affidavit further stated Rosas had been addicted to crack cocaine for 11
years. She supported her drug habit by "dating" men she did not know. One man she "dated"
came to the hotel room and inadvertently left the weapon found in Rosas's purse in the room.
Rosas kept the weapon because she wanted to trade it for drugs. Defendant always tried to help
Rosas "leave the drug addiction and the drugs dating behind [her]."
¶ 27 Rosas's affidavit also stated everything Rosas told the police about defendant's
drug-dealing operation was not true and she was solely responsible for the drugs and weapon
recovered on March 18, 2011. The last two sentences of Rosas's affidavit state, "The record
reported that I was transported to [Schnuck's in Savoy, Illinois], before a judge to swear to a search
warrant to search the hotel room. I was never transported to [S]chnuck's in Savoy, [Illinois],
before a judge nor did I ever swear to a search warrant before a judge."
¶ 28 The trial court denied defendant's motion to suppress.
¶ 29 E. Defendant's Trial
¶ 30 During the May 2012 jury trial, several people testified to the evidentiary
significance of the items seized from defendant's vehicle and the hotel room. Officer Christian
testified that in his experience as a police officer, he has encountered velvet Crown Royal bags
approximately 50 times. He testified most times he has encountered these bags, they contain
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narcotics or a weapon. The .25-caliber ammunition located inside the Crown Royal bag was
significant to Officer Christian because a .25-caliber handgun was recovered during the traffic
stop. Officer Christian also testified regarding the digital scale found in the hotel room. He
testified he had encountered such scales "hundreds, upon hundreds" of times throughout his
experience as a police officer. Officer Christian testified the price of narcotics is generally
determined by its weight. Narcotics dealers use digital scales to ensure they are giving their
customers the correct quantity of narcotics. Narcotics users may also possess scales to make sure
they are not "shorted" when they buy drugs.
¶ 31 Sergeant Dennis Baltzell of the Champaign police department testified to the
significance of the plastic Baggies, of which the corners were removed. The Baggies were
indicative of bags that have been used to package controlled substances, because the corners of the
Baggies were missing. Based on his training and experience, Sergeant Baltzell would expect this
type of Baggie to be found in locations where drugs were being packaged for sale. He would not
expect to find this type of Baggie in a location where controlled substances were merely being
consumed or used.
¶ 32 Sergeant Baltzell also recovered the crack cocaine from the hotel room's trash can.
He testified that based on his training and experience, he concluded the crack cocaine was
packaged for sale—he found 17 individually wrapped packages, all containing similar amounts of
crack cocaine. Baltzell opined the 17 packages had a street value of $340. Further, if Sergeant
Baltzell were to find individually packaged amounts of a controlled substance, an electronic scale,
additional whole plastic bags, and bags that had been cut off at the corners all at one location, he
would conclude, based on his training and experience, the person in control of the location was
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engaged in the manufacture and delivery of a controlled substance. Narcotics dealers often
protect themselves with a firearm. When drug dealers travel in a vehicle, they often conceal the
narcotics within the vehicle and carry a firearm for protection. Narcotics dealers commonly ask
someone else to hold their drugs while transporting them in a vehicle. Sergeant Baltzell opined
the quantity of crack cocaine recovered from the trash can was not an amount consistent with
personal use.
¶ 33 John Carnes, a forensic scientist for the Illinois State Police crime lab, testified he
examined both the handgun and its magazine for latent prints of which he could make a
comparison. Carnes was unable to find any latent prints on the handgun or magazine capable of
comparison. Carnes testified it was possible to touch something and not leave behind
fingerprints. Further, fingerprint residue is very fragile and not easy to preserve. Carnes was not
given any item to examine for latent prints beside the gun and its magazine.
¶ 34 Cory Formea, a forensic scientist for the Illinois State Police crime lab, testified he
collected a swab from each side of the gun's handle for deoxyribonucleic acid (DNA) analysis and
placed the swabs in the evidence vault, per department policy. Aaron Small, a forensic scientist
with the Illinois State Police crime lab, performed the actual DNA analysis. He compared the
swabs taken from the handgun with a standard sample from defendant. Small testified he
obtained single-source DNA profiles from each of the swabs taken from the handgun. Those
DNA profiles matched defendant's DNA profile. In fact, the matching DNA profile taken from
the gun and defendant would be expected to occur in 1 in 130 quintillion African-Americans, 1 in
5.8 sextillion Caucasians, and 1 in 45 sextillion southwest Hispanic unrelated individuals.
(Defendant is African-American.) It is possible to touch something and not leave behind DNA.
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No sample from Rosas was compared with the swabs from the gun.
¶ 35 John Martin, a forensic scientist at the Illinois State Police crime lab, testified the
17 individual packages recovered from the hotel room all contained a substance testing positive for
cocaine. He determined the aggregate weight of the substance contained within the 17 bags was
4.6 grams. As for the package recovered from the toilet at the Champaign police department, it
contained a substance testing positive for cocaine. Martin determined the aggregate weight of the
substance recovered from the police department's toilet was 2.6 grams.
¶ 36 The State also presented the testimony of Rosas. She testified she was 27 years
old and had been smoking crack cocaine for about 17 years. Rosas had problems with the law
over the past three years, including two misdemeanor convictions and three pending felony
charges. The pending felony charges involved both possession and delivery of a controlled
substance. Rosas had known defendant for about four years, and they had been in a dating
relationship for the past two years. Defendant and Rosas had been sharing the room at the hotel
for about two weeks at the time of their arrest, but defendant spent the night in the hotel room only
some of those nights. Defendant kept a couple changes of clothes, various personal items, and a
laptop computer in the room. Defendant also kept his crack cocaine in the room.
¶ 37 The night before Rosas and defendant were arrested, Rosas observed a man,
nicknamed "Rabbit," enter the room and leave a large ball of cocaine for defendant. Rabbit and
defendant did not exchange any words. Rosas then observed defendant break down the cocaine
using a safety pin and package it for sale using the scale and plastic Baggies recovered from the
room.
¶ 38 Once the crack cocaine was packaged for sale, defendant held onto the packages
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until somebody called to set up a deal. Defendant's customers would call defendant's cellular
phone. Rosas answered the phone for defendant, took his customers' orders, and arranged a place
to meet. Rosas would relay this information to defendant, and he would give her the appropriate
amount of crack cocaine. Rosas would deliver the crack cocaine for defendant, either by bicycle
or one of her friends' vehicles, and return the money to defendant. Rosas helped defendant deal
drugs because she "was an addict, and you know, if I done something for him, you know, I would
get me some dope, myself."
¶ 39 Rosas testified defendant obtained the handgun from a person in Rantoul. He
traded a couple of bags of crack cocaine for the weapon. Defendant then asked Rosas to hold onto
the gun for him because he was on probation and forbidden from possessing a weapon. Rosas
was scared to hold onto the gun because she had never been in that much trouble. Defendant put
the gun in her purse when they left the hotel on March 18, 2011. Rosas touched the gun only once
when asked by defendant to wipe off his fingerprints, but Rosas did not do so. Rosas also testified
as to how the crack cocaine came to be concealed within her vagina. She testified just before
Officer McDonald initiated the traffic stop, defendant handed her the cocaine and told her to hide it
inside her body, which she understood to mean inside her vagina. Rosas complied with
defendant's request.
¶ 40 On cross-examination, Rosas admitted she was hoping to receive leniency from the
State's Attorney in her pending cases by testifying against defendant here. Rosas also admitted
she smoked at least nine $20 pieces of crack cocaine per day. When showed a picture of the
dresser drawer containing the scale and Crown Royal bag, Rosas denied the items were hers.
"Rabbit" sold crack cocaine to Rosas on occasion, but not while she was living at the hotel. She
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stated she and defendant both stayed in the hotel room and defendant paid for the room.
¶ 41 Defense counsel then confronted Rosas with the numerous inconsistent statements
she had given throughout the pendency of this case. Rosas admitted she first told Officer
Sumption nothing illegal was contained within the car before she told him a gun was in her purse.
While sitting in the back of the squad car, Rosas told the officers approximately one-half ounce of
crack cocaine was in a black duffel bag in the hotel room. Defense counsel also confronted Rosas
with the inconsistency in her story of the transaction by which defendant came into possession of
the handgun.
¶ 42 Defense counsel confronted Rosas with her conflicting statements regarding how
the handgun got into her purse—she first told police defendant carried her purse containing the
weapon to the vehicle but later told police defendant placed the handgun in her purse just before
Officer McDonald initiated the traffic stop. Defense counsel also confronted Rosas about the
crack cocaine found concealed in her vagina. When her postarrest interview began, Rosas denied
having anything illegal on her person, but during the course of the interview, a bag containing
individually wrapped pieces of cocaine was recovered from the toilet after Rosas had used it.
Rosas told police defendant physically placed the crack cocaine inside her body, but she later told
them defendant handed her the drugs and told her to conceal them inside her vagina.
¶ 43 Rosas also admitted she told Officer McDonald she would cooperate as long as she
did not go to jail. Defense counsel then confronted Rosas with her affidavit in support of
defendant's Franks motion to suppress. Rosas admitted she signed the document before the
January 2012 hearing on defendant's Franks motion. Rosas also admitted she testified she signed
the document in front of a notary. When asked whether she wrote the document, Rosas testified
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she "helped writing that document." Rosas then testified she was told to write the portions
incriminating herself and exonerating defendant, but she did not identify who told her to do so.
¶ 44 On redirect examination, the State asked Rosas about the affidavit in support of
defendant's Franks motion. Rosas testified defendant told her to write the affidavit and to include
the information exonerating defendant. The State inquired about Rosas's statement in the
affidavit in which she stated she was never taken to Savoy, Illinois, to swear to an affidavit before
a judge. Rosas testified she included this statement, even though she knew it could be proved
false, because she was scared of defendant. She knew if she did not take the blame, defendant
would punch and slap her. Defendant took Rosas to the notary and stood by as the document was
notarized.
¶ 45 Defendant testified on his own behalf. He was renting the hotel room for Rosas as
a favor to her. Defendant kept clothing and some toiletries at the hotel room because he would
stay the night in the room on occasion. Defendant did not keep anything in the drawers.
According to defendant, "[e]verything in that room basically belongs to Ms. Rosas, because the
room was for her, because I had my own place."
¶ 46 Defendant knew Rosas had a handgun, "[b]ecause she dated a man once who's
named Jimmy, that's what she told me, and he was the one that had had the weapon." Defendant
saw the handgun in Rosas's possession three days before the traffic stop and asked Rosas to
dispose of it. Rosas kept the gun because she knew she could trade it for drugs. Defendant
touched the gun, only once, because he thought it was a "nice weapon."
¶ 47 Defendant denied attempting to start his vehicle after Officer McDonald asked him
to exit the car. Defendant denied he ever handled the handgun aside from when he first
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discovered it was in Rosas's possession. Rosas carried the handgun to his vehicle of her own free
will. Defendant denied packaging and selling drugs from the hotel. Defendant denied ever
selling drugs—he was previously a drug user, not a dealer. Rosas did not deliver drugs for
defendant. Defendant did not know drugs were in the hotel room. He knew, however, Rosas
supported her drug habit through prostitution, and he had been present when Rosas brought men to
the room.
¶ 48 Defendant denied ever possessing the crack cocaine in Rosas's vagina. He did not
tell Rosas to hide the crack cocaine inside her vagina. Rosas fabricated her statements
incriminating defendant because she wanted leniency from the State. Defendant denied telling
Rosas what information to include in her affidavit in support of his Franks motion. Defendant
never told Rosas how to testify in another proceeding and never threatened her harm.
¶ 49 On cross-examination, defendant maintained he was helping Rosas rent the hotel
room out of the goodness of his heart. He would take cash she gave him to go pay for the room.
He sometimes paid a portion of the bill out of his own pocket. Sometimes, defendant "dated"
Rosas and gave her money in exchange. Defendant knew Rosas was a drug user on March 18,
2011, but he "never got involved" with what she did. He often told her to go to rehab, but she was
stubborn and would not listen. "She kept her lifestyle," defendant testified, "and my mistake was
just being around her like that."
¶ 50 Defendant stated he had not smoked crack cocaine in four to five years. At the
time of trial, defendant still associated with Rosas. When asked whether his relationship with
Rosas was the same as it was on March 18, 2011, defendant stated it was. The last time defendant
"dated" Rosas was about three months prior to trial. Defendant thought he and Rosas would still
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be on good terms after her testimony at trial. Rosas was only incriminating him to get leniency
from the State. Defendant was not upset with Rosas's testimony at trial because he knew she
would testify as she did all along. Defendant knew he was the person the police were really after.
Defendant was never guilty of any offense of which he was accused. This incident, like all his
other previous run-ins with the law, was caused by the fact he is a nice person and others take
advantage of him.
¶ 51 On this evidence, the jury found defendant guilty on both counts.
¶ 52 F. Defendant's Sentence
¶ 53 On July 2, 2012, the cause proceeded to defendant's sentencing hearing. Prior to
the hearing, the parties were allowed to suggest corrections to the presentence investigation report
(PSI). Only the State took this opportunity, adding dates and case numbers to the portion of the
PSI detailing defendant's criminal history. After the parties presented evidence in aggravation
and mitigation and argued the appropriate sentence for this case, defendant addressed the court.
Defendant stated he was innocent of the charges in this case. In fact, he was not guilty of any
offense in his criminal history. On this occasion and in his past, defendant was guilty only by his
association with criminals.
¶ 54 The trial court sentenced defendant to a 30-year term on count I and a concurrent
10-year term on count II. After announcing this sentence, the court addressed the issues of
sentencing credit and monetary assessments with the parties. The court asked defense counsel
whether 145 days was the correct calculation of credit for time served, and counsel responded in
the affirmative. Thereafter, the court awarded defendant 145 days' credit for time served and
ordered defendant to pay a $100 crime laboratory analysis fee, a $2,000 mandatory assessment,
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and a $340 street-value fine for the cocaine recovered from the hotel room. In addition, the court
authorized a $250 DNA analysis fee to be imposed, but only if defendant had not previously been
assessed the fee. Finally, the court ordered defendant to "pay all fines, fees, and costs as
authorized by statute," but it did not specifically refer to any fine, fee, or cost other than those
already stated. The court asked whether the parties had anything else to add, and both parties
responded they did not.
¶ 55 After defendant's sentencing hearing, the circuit clerk calculated the statutorily
authorized assessments against defendant, which are reflected in a printout from the clerk. The
printout from the clerk (see appendix), shows defendant was assessed the following fines and fees
on count I: (1) a $5 document-storage assessment; (2) a $10 automation assessment; (3) a $100
circuit-clerk assessment; (4) a $25 court-security assessment; (5) a $50 court-finance assessment;
(6) a $40 State's Attorney assessment (a $30 assessment for felony conviction plus the $10
remitted to the State's Attorney as part of the juvenile expungement assessment); (7) a $2 "State's
Attorney Au" assessment; (8) a $10 arrestee's medical assessment; (9) a $5 spinal-cord-research
assessment; (10) a $250 "State Offender DN" assessment; (11) a $100 trauma-fund assessment;
(12) a $590 traffic/criminal surcharge; (13) a $30 juvenile expungement assessment listed as three
separate $10 assessments for the State Police Services Fund, State's Attorney's Office Fund (the
$10 assessment for the State's Attorney is included in the $40 charge listed for the State's Attorney
on the clerk's printout), and Circuit Clerk Operations and Administrative Fund; (14) a $5
drug-court assessment; (15) a $236 violent crimes victims assistance (VCVA) assessment; (16) a
$340 street-value fine; (17) a $1,275 mandatory assessment; and (18) a $10 State Police operations
assessment.
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¶ 56 On count II, the circuit clerk's printout shows defendant was assessed the following
fines and fees: (1) a $5 document-storage assessment; (2) a $10 automation assessment; (3) a $100
circuit-clerk assessment; (4) a $25 court-security assessment; (5) a $50 court-finance assessment;
(6) a $40 State's Attorney assessment (a $30 assessment for felony conviction plus the $10
remitted to the State's Attorney as part of the juvenile expungement assessment); (7) a $2 "State's
Attorney Au" assessment; (8) a $10 arrestee's medical assessment; (9) a $10 traffic/criminal
surcharge; (10) a $30 juvenile expungement assessment listed as three separate $10 assessments
for the State Police Services Fund, State's Attorney's Office Fund (the $10 assessment for the
State's Attorney is included in the $40 charge listed for the State's Attorney on the clerk's printout),
and Circuit Clerk Operations and Administrative Fund; (11) a $5 drug-court assessment; (12) a $4
VCVA assessment (we note the printout also contains an entry called "VICTIMS FUND—NO
FI," with no dollar amount listed); and (13) a $10 State Police operations assessment. The
printout also contains an entry for "CRIME LAB," but no dollar amount is listed.
¶ 57 This appeal followed.
¶ 58 II. ANALYSIS
¶ 59 A. Sufficiency of the Evidence
¶ 60 Defendant argues the State failed to produce sufficient evidence to sustain his
conviction for unlawful possession with intent to deliver a controlled substance. Specifically,
defendant argues the State's case was based entirely on the incredible testimony of Kimberly
Rosas, and as a result, defendant's conviction and sentence for that offense must be vacated. The
State responds the evidence, notwithstanding Rosas's testimony, is sufficient to sustain his
conviction. Defendant does not challenge his conviction for unlawful possession of a weapon by
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a felon.
¶ 61 When met with a challenge to the sufficiency of the evidence, this court, viewing
the evidence in the light most favorable to the State, considers whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. People v.
Wheeler, 226 Ill. 2d 92, 114, 871 N.E.2d 728, 740 (2007). The critical question is whether the
record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Id."This standard of review applies, 'regardless of whether the evidence is direct or circumstantial
[citation], and regardless of whether the defendant receives a bench or jury trial [citation].' " Id.(quoting People v. Cooper, 194 Ill. 2d 419, 431, 743 N.E.2d 32, 40 (2000)).
¶ 62 It is not this court's function to a retry defendant when met with challenges to the
sufficiency of the evidence. People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365, 369 (1999).
Instead, our duty is "to carefully examine the evidence while giving due consideration to the fact
that the [trial] court and jury saw and heard the witnesses." Id. As such, the jury's findings
regarding witness credibility are entitled to great weight. Wheeler, 226 Ill. 2d at 115, 871 N.E.2d
at 740. The jury's findings regarding witness credibility are neither conclusive nor binding,
however, because reasonable people may act unreasonably on occasion. Id. "Accordingly, a
conviction will be reversed where the evidence is so unreasonable, improbable, or unsatisfactory
that it justifies a reasonable doubt of defendant's guilt." Id.¶ 63 To sustain a conviction for unlawful possession with intent to deliver a controlled
substance, the State must prove beyond a reasonable doubt (1) the defendant had knowledge of the
presence of the controlled substance; (2) the controlled substance was in the immediate possession
or control of the defendant; and (3) the defendant intended to deliver the controlled substance.
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People v. Robinson, 167 Ill. 2d 397, 407, 657 N.E.2d 1020, 1026 (1995).
¶ 64 Knowledge can rarely be proved by direct evidence and is typically "proved by
defendant's actions, declarations, or conduct from which an inference of knowledge may be fairly
drawn." People v. Roberts, 263 Ill. App. 3d 348, 352, 636 N.E.2d 86, 90 (1994). Because
knowledge is difficult to prove, when actual or constructive possession is established, knowledge
can generally be inferred from the surrounding circumstances. Id.; see also People v. Nettles, 23
Ill. 2d 306, 308, 178 N.E.2d 361, 363 (1961) ("where narcotics are found on premises under
defendant's control, it may be inferred that the defendant had both knowledge and control of the
narcotics"). Actual possession requires actual physical dominion over the contraband, while
constructive possession is established where a defendant has exclusive control of the premises in
which the contraband is found. Roberts, 263 Ill. App. 3d at 352-53, 636 N.E.2d at 90. "The
requirement of exclusive control does not mean that possession may not be joint." Id. at 353, 636
N.E.2d at 90.
¶ 65 Intent is also rarely proved by direct evidence. Robinson, 167 Ill. 2d at 408, 657
N.E.2d at 1026. Courts look to a variety of factors to prove the intent element of the instant
offense, which include:
"whether the quantity of controlled substance in defendant's
possession is too large to be viewed as being for personal
consumption [citation], the high purity of the drug confiscated
[citation], the possession of weapons [citation], the possession of
large amounts of cash [citation], the possession of police scanners,
beepers or cellular telephones [citations], the possession of drug
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paraphernalia [citation] and the manner in which the substance is
packaged [citation]." Id., 657 N.E.2d at 1026-27.
In People v. Beverly, 278 Ill. App. 3d 794, 663 N.E.2d 1061 (1996), this court affirmed a
defendant's conviction for unlawful possession with the intent to deliver a controlled substance
where the drugs were packaged for sale and the State proved one additional factor tending to show
an intent to deliver—the presence of a large amount of cash on defendant's person. Id. at 802, 663
N.E.2d at 1066-67; see also People v. Delgado, 256 Ill. App. 3d 119, 123, 628 N.E.2d 727, 730
(1993) ("The minimum this court has required for the affirmance of a conviction for delivery
involving small amounts of drugs is possession of the controlled substance packaged for sale, plus
at least one additional factor indicative of delivery ***.").
¶ 66 In this case, the record evidence reasonably supports a finding of guilt. Defendant
had exclusive control over the hotel room in which the 4.6 grams of cocaine were found. In this
case, defendant was the only person named in the hotel rental agreement and paid for the room in
cash each day. Defendant kept important personal belongings in the room, such as a blank check,
a laptop computer, the certificate of title to his vehicle, and prescription medication. Defendant
also kept clothes and toiletries in the hotel room. Just because Rosas also had unfettered access to
the room and stayed there more often than defendant does not mean defendant did not have
exclusive control over the premises. See People v. Songer, 229 Ill. App. 3d 901, 905, 594 N.E.2d
405, 408 (1992). Exclusive possession may be joint. People v. Burke, 136 Ill. App. 3d 593, 599,
483 N.E.2d 674, 679 (1985). Because defendant had exclusive control over the hotel room in
which the crack cocaine was found, he constructively possessed the crack cocaine recovered
therefrom.
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¶ 67 Since defendant had constructive possession of the crack cocaine found in the trash
can of the hotel room, the jury was entitled to find defendant had the requisite knowledge crack
cocaine was present in the room. See Nettles, 23 Ill. 2d at 308, 178 N.E.2d at 363. Here, other
facts tend to show defendant had knowledge of the presence of crack cocaine inside the hotel
room. Defendant was aware of the fact Rosas used cocaine. Further, defendant knew Rosas
"dated" men at the hotel to support her crack cocaine addiction. Defendant had the requisite
knowledge crack cocaine was located inside the hotel room.
¶ 68 Based on the record, we also conclude the jury was justified in finding defendant
had the requisite intent to deliver the crack cocaine. While executing the search warrant for the
hotel room, the police recovered a digital scale, live .25-caliber ammunition, whole plastic
Baggies, plastic Baggies of which the bottom corners had been removed, and 17 individually
wrapped pieces of crack cocaine. Because the crack cocaine found in the hotel room was
packaged in a manner consistent with how it is sold, the presence of one additional factor tending
to show intent can support a finding of intent to deliver a controlled substance. See Beverly, 278
Ill. App. 3d at 802, 663 N.E.2d at 1066-67. Here, not only was the crack cocaine packaged for
sale, but ammunition and paraphernalia consistent with drug dealing was also found in the hotel
room. Further, the police recovered a gun during the search of defendant's vehicle. The jury was
entitled to find defendant had the requisite intent to deliver the 4.6 grams of cocaine in the hotel
room.
¶ 69 Turning to the 2.6 grams of crack cocaine recovered from the toilet at the
Champaign police department, the record evidence supports a finding of guilt. Defendant had
constructive possession over the crack cocaine hidden inside Rosas's body as he had exclusive
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control over the vehicle in which Rosas was traveling. Defendant was the sole person listed on
the vehicle's certificate of title. While the crack cocaine was located in Rosas's body, giving her
actual possession thereof, the jury was entitled to find defendant constructively possessed the
cocaine. See People v. Schmalz, 194 Ill. 2d 75, 82, 740 N.E.2d 775, 779 (2000) ("The rule that
possession must be exclusive does not mean that the possession may not be joint ***.").
¶ 70 Defendant's constructive possession of the crack cocaine ultimately recovered from
the Champaign police department toilet gives rise to an inference defendant had knowledge of the
presence of the crack cocaine. See Nettles, 23 Ill. 2d at 308, 178 N.E.2d at 363. Further,
testimony of defendant's attempt to lock the door and start the vehicle supports the inference
defendant had the requisite knowledge.
¶ 71 Finally, the record evidence shows the jury was entitled to find defendant had the
requisite intent to deliver a controlled substance. The crack cocaine ultimately recovered from
the Champaign police department toilet was packaged for sale in the same manner as that
recovered from the hotel room. Further, a loaded handgun was recovered from Rosas's purse
during the traffic stop.
¶ 72 Defendant asserts the State's evidence against him "was based entirely on the
testimony of admitted addict and co-defendant Kimberly Rosas." Defendant argues Rosas's
testimony does not carry the absolute conviction of its truth and, therefore, does not suffice as
proof beyond a reasonable doubt of his guilt. In support of his argument, defendant cites Smith,
185 Ill. 2d 532, 708 N.E.2d 365. In Smith, defendant challenged the sufficiency of the evidence
on his murder conviction. Id. at 534, 708 N.E.2d at 366. The supreme court determined the
"weakness of the State's chief witness, along with the lack of other direct evidence linking
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defendant to the crime, required a not guilty verdict as a matter of law." Id. at 542, 708 N.E.2d at
370. The supreme court noted "the circumstantial evidence tending to link defendant to the
murder merely narrowed the class of individuals who may have killed the victim, without pointing
specifically to defendant." Id. at 545, 708 N.E.2d at 371.
¶ 73 The record shows Rosas's statements throughout the pendency of this case
contained numerous inconsistencies as to how she came into possession of the gun and the drugs
ultimately recovered from her vagina. Her two affidavits appear to be in direct conflict with one
another. Rosas is admittedly addicted to crack cocaine and hoped for leniency from the State in
exchange for her statements incriminating defendant. Rosas's statements are subject to question,
and they were subjected to scrutiny by the attorneys in this case. Further, Rosas testified she was
charged as defendant's codefendant with possession of the crack cocaine hidden in her vagina.
On the State's request, the jury was instructed to view Rosas's testimony with caution. See Illinois
Pattern Jury Instructions, Criminal, No. 3.11 (4th ed. 2000) (prior inconsistent statements); Illinois
Pattern Jury Instructions, Criminal, No. 3.17 (4th ed. 2000) (accomplice testimony). The trier of
fact was entitled to decide which version of events she gave should be credited.
¶ 74 Moreover, we disagree the State's case was based entirely on Rosas's statements
and testimony. The State presented much circumstantial evidence against defendant
notwithstanding Rosas's statements and testimony. Defendant rented a hotel room in which
extensive evidence of a drug-dealing operation was found. The State presented the testimony of
11 people in addition to Rosas. Officer Christian and Sergeant Baltzell explained to the jury the
evidentiary significance of the items found in the hotel room—the items found were indicative of
the manufacture and delivery of a controlled substance. The jury was present throughout the
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proceedings and found the State's witnesses more credible than the defendant's own self-serving
statements of innocence. The evidence presented by the State reasonably supports a finding of
guilt, and our function is not to reweigh this evidence. We affirm defendant's conviction for
unlawful possession with intent to deliver a controlled substance.
¶ 75 B. Fines and Fees
¶ 76 Defendant contends the trial court improperly duplicated the assessments imposed
pursuant to his conviction. Specifically, defendant argues he was assessed the statutorily
authorized fines and fees on each count within his single case, which is improper under People v.
Alghadi, 2011 IL App (4th) 100012, 960 N.E.2d 612. Defendant argues this court should vacate
the duplicate fines. In addition, defendant argues the circuit clerk improperly assessed a $250
DNA analysis fee after the court conditionally ordered the fee at his sentencing hearing.
¶ 77 The State concedes defendant was improperly assessed duplicate fines and fees and
the DNA analysis fee. We do not accept the State's concession as to the duplicate fines and fees.
Beacham v. Walker, 231 Ill. 2d 51, 60, 896 N.E.2d 327, 333 (2008). The State, further, disagrees
the trial court imposed certain fines, instead arguing because the circuit clerk improperly imposed
these assessments, remand is required so the fines may be imposed by the judge. In addition, the
State contends the court, on remand, must increase the street-value fine imposed pursuant to
defendant's conviction on count I because the court erroneously imposed the fine on only the
cocaine found in the hotel room.
¶ 78 1. Fines and Fees on Each Count: Rethinking Alghadi
¶ 79 Defendant takes issue with the trial court's imposition of one of each of the
following assessments on each count in his case: (1) a $5 document-storage assessment; (2) a $10
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automation assessment; (3) a $100 circuit-clerk assessment; (4) a $25 court-security assessment;
(5) a $10 arrestee's medical assessment; (6) a $50 court-finance assessment; (7) a $40 State's
Attorney assessment; (8) a VCVA assessment ($236 on count I and $4 on count II); and (9) a $10
State Police operations assessment. Defendant contends the court could not properly impose
these duplicate assessments on each count within his case, citing Alghadi, 2011 IL App (4th)
100012, 960 N.E.2d 612.
¶ 80 a. Trial Court Must Impose Fines as Component of Sentence
¶ 81 We must first consider whether the trial court or the circuit clerk imposed the
assessments in this case. Defendant argues the trial court improperly imposed the duplicate
assessments of which he takes issue. The State, however, points out the circuit clerk imposed the
assessments. See People v. Chester, 2014 IL App (4th) 120564, ¶ 35, 5 N.E.3d 227 ("In appeals
raising statutory credit issues, this requires the parties' briefs to contain a statement of facts
identifying which specific fines the trial court identified and expressly imposed as part of the
sentence—and which fines the circuit clerk simply assessed after sentencing and without bringing
them to the judge's attention and having the judge sign off on them in a supplemental sentencing
judgment—and providing appropriate citations to the record. The parties may not agree to
overlook or otherwise ignore the circuit clerk's imposition of fines not ordered by the trial court.").
The record shows the court, at defendant's July 2012 sentencing hearing, ordered defendant to "pay
all fines, fees, and costs as authorized by statute." The record contains no docket entry, order, or
amended sentencing judgment reflecting the imposition of these assessments during sentencing.
The record does not otherwise indicate the court approved these assessments, defendant or the
attorneys were present for their imposition, or even that defendant or defense counsel were notified
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thereof.
¶ 82 In this case, when the trial court ordered defendant to "pay all fines, fees, and costs
as authorized by statute," it improperly delegated its power to impose a sentence to the circuit
clerk. See People v. Fontana, 251 Ill. App. 3d 694, 709, 622 N.E.2d 893, 904 (1993) (Second
District, "the imposition of a fine is a judicial act which can be performed only by a judge");
People v. Rexroad, 2013 IL App (4th) 110981, ¶ 52, 992 N.E.2d 3 ("The circuit clerk has no
authority to impose fines."); Chester, 2014 IL App (4th) 120564, ¶¶ 29-38, 5 N.E.3d 227 (in
finding the clerk improperly imposed the fines at issue, the court held the task of imposing fines
may not be delegated to the clerk); People v. Montag, 2014 IL App (4th) 120993, ¶ 37, 5 N.E.3d
246 (vacating the circuit clerk's imposition of mandatory fines because the circuit clerk has no
authority to levy fines against a criminal defendant); see also People v. Isaacson, 409 Ill. App. 3d
1079, 1085, 950 N.E.2d 1183, 1189-90 (2011) (trial court expressly imposed a DNA assessment
and a contribution to the Crime Detection Network and ordered defendant to pay whatever
mandatory assessments, including the VCVA fine, listed by the circuit clerk; the record contained
no evidence the court itself determined the mandatory fines that applied to the defendant's
conviction and the appropriate amounts of those fines; this court held the conditional discharge
order erroneously abdicated that task to the clerk). Any fine imposed by the clerk must be vacated
and the cause remanded for the trial judge to impose the fines. Montag, 2014 IL App (4th)
120993, ¶ 37, 5 N.E.3d 246.
¶ 83 b. Assessments Imposed by Circuit Clerk
¶ 84 i. Distinction Between Fines and Fees
¶ 85 We next consider whether the assessments levied by the circuit clerk in this case are
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fines or fees, because any fine assessed by the clerk must be vacated.
¶ 86 The supreme court has recognized, despite their label as fees, certain assessments
imposed pursuant to a conviction are fines. People v. Graves, 235 Ill. 2d 244, 250, 919 N.E.2d
906, 909-10 (2009); People v. Jones, 223 Ill. 2d 569, 599-600, 861 N.E.2d 967, 985-86 (2006).
The Graves court explained the distinction between fines and fees as follows:
"A fee is defined as a charge that seeks to recoup expenses incurred
by the state, or to compensate the state for some expenditure
incurred in prosecuting the defendant. [Citation.] A fine,
however, is punitive in nature and is a pecuniary punishment
imposed as part of a sentence on a person convicted of a criminal
offense. [Citation.]" (Internal quotation marks omitted.) Graves,
235 Ill. 2d at 250, 919 N.E.2d at 909.
¶ 87 ii. Can Fines and/or Fees Be Imposed on Each Count?
¶ 88 As part of our analysis, we next consider whether the assessments levied in this
case can properly be imposed on each count in a defendant's case.
¶ 89 This court has addressed the issue of whether certain fines, fees, and costs may be
imposed on each count in a defendant's single case. In Alghadi, 2011 IL App (4th) 100012, 960
N.E.2d 612, we explained, without the benefit of briefs or argument by the parties, as follows:
"Although a defendant may be charged with multiple counts within
the same case number, the defendant may only be assessed (1) one
document-storage fee, (2) one automation fee, (3) one circuit-clerk
fee, (4) one court-security fee, (5) one arrestee's-medical
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assessment, (6) one court-finance fee, (7) one State's Attorney
assessment, (8) one VCVA fine, and (9) one drug-court fee."
(Emphases in original.) Alghadi, 2011 IL App (4th) 100012, ¶ 22,
960 N.E.2d 612.
¶ 90 Following this court's decision in Alghadi, the Second District addressed the issue
of whether fines may be imposed on each count within a defendant's single case. In People v.
Pohl, 2012 IL App (2d) 100629, 969 N.E.2d 508, and People v. Martino, 2012 IL App (2d)
101244, 970 N.E.2d 1236, the Second District approached the issue by examining the language of
the statute or ordinance imposing each fee to ascertain whether that fee could be imposed more
than once. While the instant appeal was pending, this court decided People v. Larue, 2014 IL
App (4th) 120595. In Larue, we declined to apply our own decision in Alghadi, and instead
followed the Second District's approach to duplicate fines and fees. Id. ¶ 59. We will examine
the statutory language authorizing or mandating each fine or fee to determine whether the
imposition of multiple fines or fees in a defendant's single case is proper.
¶ 91 iii. The Assessments in This Case
¶ 92 To determine whether an assessment is a fine or a fee and whether the assessment
may be imposed on each count within a defendant's case, we look to the language of the statutes
providing for their imposition. Because the issues presented are ones of statutory construction,
our review is de novo. People v. Gutman, 2011 IL 110338, ¶ 12, 959 N.E.2d 621. Our primary
objective when construing a statute is to ascertain and effectuate the legislature's intent. Id. The
best indication of the legislature's intent is the language of the statute, which should be given its
plain and ordinary meaning. People v. Giraud, 2012 IL 113116, ¶ 6, 980 N.E.2d 1107. "When
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statutory language is plain and unambiguous, the statute must be applied as written without resort
to aids of statutory construction." People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 184, 902
N.E.2d 667, 671 (2009).
¶ 93 (a) The Document-Storage Assessments:
A Fee Not Properly Imposed on Each Count
¶ 94 The record shows the circuit clerk imposed a $5 document-storage fee (705 ILCS
105/27.3c(a) (West 2010)) on each count in defendant's case. In Larue, 2014 IL App (4th)
120595, ¶ 62, we held the clerk could only assess one document-storage fee against the defendant,
even though his case resulted in multiple convictions. We vacate one of the document-storage
fees assessed against defendant in this case.
¶ 95 (b) The Automation Assessments:
A Fee Not Properly Imposed on Each Count
¶ 96 The record shows the circuit clerk imposed a $10 automation fee (705 ILCS
105/27.3a (West 2010)) on each count in defendant's case. In Larue, we held the clerk could
assess only one automation fee per case. Larue, 2014 IL App (4th) 120595, ¶ 64. We vacate one
of the automation fees assessed against defendant in this case.
¶ 97 (c) The Circuit-Clerk Assessments:
A Fee Not Properly Imposed on Each Count
¶ 98 The record shows the circuit clerk imposed a $100 circuit-clerk fee (705 ILCS
105/27.1a(w) (West 2010)) on each count in defendant's case. In Larue, we held the clerk could
assess only one circuit-clerk fee per felony complaint. Larue, 2014 IL App (4th) 120595, ¶ 66.
Here, the two counts filed by the State constituted one felony complaint. We vacate one of the
circuit-clerk fees assessed against defendant in this case.
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¶ 99 (d) The Court-Security Assessments:
A Fee Not Properly Imposed on Each Count
¶ 100 The record shows the circuit clerk imposed a $25 court-security fee (55 ILCS
5/5-1103 (West 2010)) on each count in defendant's case. In Larue, we held the clerk could
assess only one court-security fee against the defendant. Larue, 2014 IL App (4th) 120595, ¶ 68.
We vacate one of the court-security fees assessed against defendant in this case.
¶ 101 (e) The Court-Finance Assessments:
A Fee Properly Imposed on Each Count
¶ 102 The record shows the circuit clerk imposed a $50 court-finance fee (55 ILCS
5/5-1101(c), (g) (West 2010)) on each count in defendant's case. In Larue, we held the clerk can
properly impose a court-finance fee for each judgment of guilty or order of supervision. Larue,
2014 IL App (4th) 120595, ¶ 70. In this case, because defendant was found guilty of two
offenses, the clerk properly assessed two court-finance fees against defendant.
¶ 103 (f) The State's Attorney Assessments:
A Fee Properly Imposed on Each Count
¶ 104 The record shows the circuit clerk imposed a $40 State's Attorney fee (55 ILCS
5/4-2002 (West 2010)) on each count in defendant's case. In Larue, we held the clerk could
impose the State's Attorney assessment on a per-conviction basis. Larue, 2014 IL App (4th)
120595, ¶ 72. In this case, because defendant was convicted of two offenses, the circuit clerk
properly assessed two State's Attorney fees against defendant.
¶ 105 Our review of the statute authorizing the State's Attorney fee shows the State's
Attorney is entitled to receive $30 for each felony conviction. 55 ILCS 5/4-2002(a) (West 2010).
The additional $10 listed under the State's Attorney assessment on the circuit clerk's printout is the
$10 sum paid to the State's Attorney out of the $30 juvenile-expungement assessment discussed
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below. See 730 ILCS 5/5-9-1.17 (West 2010).
¶ 106 (g) The State's Attorney Automation Assessments:
A Fee Properly Imposed on Each Count
¶ 107 The record shows the circuit clerk imposed a $2 State's Attorney automation fee on
each count in defendant's case. Section 4-2002(a) of the 2012 version of the Counties Code
provides, in pertinent part:
"State's attorneys shall be entitled to a $2 fee to be paid by
the defendant on a judgment of guilty or a grant of supervision for a
violation of any provision of the Illinois Vehicle Code or any
felony, misdemeanor, or petty offense to discharge the expenses of
the State's Attorney's office for establishing and maintaining
automated record keeping systems." 55 ILCS 5/4-2002(a) (West
2012).
Public Act 97-673 amended section 4-2002 of the Counties Code to add the above-quoted
provision, which does not appear in the version of section 4-2002 in effect when defendant
committed the offenses in question. Pub. Act 97-673, § 5 (eff. June 1, 2012). If the assessment
is a fine, we must vacate its imposition as violating the prohibition on ex post facto punishment.
People v. Dalton, 406 Ill. App. 3d 158, 163, 941 N.E.2d 428, 434 (2010) ("The prohibition against
ex post facto laws applies only to laws that are punitive. It does not apply to fees, which are
compensatory instead of punitive.").
¶ 108 The plain language of section 4-2002(a) evidences the legislature's intent the $2
assessment be compensatory in nature. The assessment is to be used to "discharge the expenses
of the State's Attorney's office for establishing and maintaining automated record keeping
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systems." 55 ILCS 5/4-2002(a) (West 2012). Because the assessment is intended to reimburse
the State's Attorneys for their expenses related to automated record-keeping systems, the
assessment is not punitive in nature. The assessment is a fee. Thus, the circuit clerk could
properly impose the assessment against defendant, even though the provision authorizing the
assessment became law after defendant committed the offenses charged in this case.
¶ 109 The plain language of section 4-2002(a) clearly evidences the legislature's intent
this fee be imposed on each count in a defendant's case. A defendant must pay the $2 fee "on a
judgment of guilty or a grant of supervision for *** any felony, misdemeanor, or petty offense." 55
ILCS 5/4-2002(a) (West 2012). Because a defendant may properly be charged with and found
guilty of multiple felony, misdemeanor, or petty offenses in a single case, the $2 State's Attorney
automation fees could be imposed on each count in defendant's case. This conclusion is bolstered
by the language in section 4-2002(a), providing "[n]o fees shall be charged on more than 10 counts
in any one indictment or information on trial and conviction; nor on more than 10 counts against
any one defendant on pleas of guilty." Id. The circuit clerk properly assessed two State's
Attorney automation fees against defendant.
¶ 110 (h) The Arrestee's Medical Assessments:
A Noncreditable Fine That Can Be Imposed by the Court on Each Count
¶ 111 The record shows the circuit clerk imposed a $10 arrestee's medical assessment on
each count in defendant's case. Section 17 of the County Jail Act (Jail Act) (730 ILCS 125/17
(West 2010)) provides, in pertinent part:
"The county shall be entitled to a $10 fee for each conviction
or order of supervision for a criminal violation, other than a petty
offense or business offense. The fee shall be taxed as costs to be
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collected from the defendant, if possible, upon conviction or entry
of an order of supervision. The fee shall not be considered a part of
the fine for purposes of any reduction in the fine.
All such fees collected shall be deposited by the county in a
fund to be established and known as the County Jail Medical Costs
Fund. Moneys in the Fund shall be used solely for reimbursement
to the county of costs for medical expenses and administration of the
Fund." (Emphases added.) 730 ILCS 125/17 (West 2010).
¶ 112 In Larue, this court held the arrestee's medical fee, despite its label as a "fee," was
actually a fine and could not be imposed by the circuit clerk. Larue, 2014 IL App (4th) 120595,
¶ 57. In support of this conclusion, we noted a defendant can be required to pay the fine even
though defendant did not receive medical treatment or costs. Id.; see People v. Jackson, 2011 IL
110615, ¶¶ 24, 27, 955 N.E.2d 1164. Additionally, classifying the arrestee's medical assessment
as a fee would render the language in the statute providing, "[t]he fee shall not be considered a part
of the fine for purposes of any reduction in the fine" (730 ILCS 125/17 (West 2010)), superfluous
because fees are not subject to credit under section 110-14 of the Code of Criminal Procedure of
1963 (725 ILCS 5/110-14(a) (West 2010)). People v. Sulton, 395 Ill. App. 3d 186, 190, 916
N.E.2d 642, 645-46 (2009). Because the arrestee's medical assessment is a fine, the clerk could
not properly impose it.
¶ 113 The plain language of section 17 of the Jail Act clearly evidences the legislature's
intent this fine be imposed on each count in a defendant's case. The fine is to be imposed "for
each conviction or order of supervision." 730 ILCS 125/17 (West 2010). A defendant may
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properly be convicted of multiple offenses in a single case. Because a defendant may properly be
convicted on multiple counts in a given case, the trial court must reimpose the arrestee's medical
fine on each count in defendant's case.
¶ 114 (i) The Spinal-Cord-Research Assessment:
A Noncreditable Fine Improperly Imposed by the Clerk
¶ 115 The record shows the circuit clerk imposed a $5 spinal-cord-research assessment
against defendant on count I only. Section 5-9-1.1(c) of the Unified Code of Corrections (Unified
Code) (730 ILCS 5/5-9-1.1(c) (West 2010)) provides:
"(c) In addition to any penalty imposed under subsection (a)
of this Section, a fee of $5 shall be assessed by the court, the
proceeds of which shall be collected by the Circuit Clerk and
remitted to the State Treasurer under Section 27.6 of the Clerks of
Courts Act for deposit into the Spinal Cord Injury Paralysis Cure
Research Trust Fund. This additional fee of $5 shall not be
considered a part of the fine for purposes of any reduction in the fine
for time served either before or after sentencing." 730 ILCS
5/5-9-1.1(c) (West 2010).
¶ 116 In Jones, 223 Ill. 2d at 599, 861 N.E.2d at 985, our supreme court held the
spinal-cord-research fee, despite its statutory label as a fee, is a fine. We vacate the
spinal-cord-research fine imposed by the circuit clerk in this case. On remand, the trial court shall
reimpose the fine as mandated by the statute. Because the clerk imposed this fine on count I only,
we need not address whether the fine can be properly imposed on each count in a defendant's case.
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¶ 117 (j) The Trauma-Fund Assessment:
A Fine Improperly Imposed by the Clerk
¶ 118 The record shows the circuit clerk imposed a $100 trauma-fund assessment on
count I only. Section 5-9-1.1(b) of the Unified Code provides:
"(b) In addition to any penalty imposed under subsection (a)
of this Section, a fine of $100 shall be levied by the court, the
proceeds of which shall be collected by the Circuit Clerk and
remitted to the State Treasurer under Section 27.6 of the Clerks of
Courts Act for deposit into the Trauma Center Fund for distribution
as provided under Section 3.225 of the Emergency Medical Services
(EMS) Systems Act." (Emphases added.) 730 ILCS 5/5-9-1.1(b)
(West 2010).
¶ 119 In Jones, 223 Ill. 2d at 593, 861 N.E.2d at 981-82, our supreme court held the
trauma-fund assessment authorized under section 5-9-1.1(b) of the Unified Code was clearly a fine
because the legislature labeled it as such. We vacate the trauma-fund fine imposed by the circuit
clerk after defendant's sentencing. On remand, the trial court must reimpose the trauma-fund fine
as mandated by the statute. Because the clerk imposed this fine on count I only, we need not
address whether the fine can be properly imposed on each count in a defendant's case.
¶ 120 (k) The Traffic/Criminal Surcharges:
A Fine Improperly Imposed by the Clerk
¶ 121 The record shows the circuit clerk imposed a $590 criminal surcharge on count I
and a $10 criminal surcharge on count II. Section 5-9-1(c) of the Unified Code provides, in
pertinent part:
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"(c) There shall be added to every fine imposed in
sentencing for a criminal or traffic offense, except an offense
relating to parking or registration, or offense by a pedestrian, an
additional penalty of $10 for each $40, or fraction thereof, of fine
imposed." (Emphases added.) 730 ILCS 5/5-9-1(c) (West 2010).
¶ 122 The plain language of section 5-9-1(c) of the Unified Code clearly shows the
legislature intended this assessment to be punitive in nature. The statute refers to the assessment
as "an additional penalty." 730 ILCS 5/5-9-1(c) (West 2010). Further, the statute does not
indicate the assessment is to be used to reimburse the county or the State for the expenses related to
the prosecution of a defendant. Because the circuit clerk imposed the criminal surcharges after
defendant was sentenced by the trial court, we vacate these fines.
¶ 123 The plain language of section 5-9-1(c) shows the legislature intended this
assessment be imposed on each count in a criminal case. The statute provides the fine is to be
"imposed in sentencing for a criminal or traffic offense." 730 ILCS 5/5-9-1(c) (West 2010).
Because a defendant may properly be sentenced for multiple offenses in a single case, a trial judge
may properly impose this fine on each count.
¶ 124 On remand, the trial court must reimpose a criminal surcharge on each count in
defendant's case. This may require the fine to be recalculated, which will require the trial court to
calculate the total fines on each count and assess an additional $10 for each $40, or fraction
thereof, of fine imposed. 730 ILCS 5/5-9-1(c) (West 2010); see People v. Williams, 2013 IL App
(4th) 120313, ¶ 21, 991 N.E.2d 914 (" 'Lump Sum Surcharge' " imposed pursuant to section
5-9-1(c) of the Unified Code is to be calculated before the VCVA assessment; the surcharge is
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added to the total fines and the VCVA assessment is calculated based on the new total); People v.
O'Laughlin, 2012 IL App (4th) 110018, ¶ 24, 979 N.E.2d 1023 (amount of surcharge fine is based
upon the gross amount of fines levied against defendant; VCVA assessment to be imposed after
surcharge is calculated).
¶ 125 (l) The Juvenile Expungement Fund Assessments:
A Fine Improperly Imposed by the Clerk
¶ 126 The record shows the circuit clerk imposed a $30 Juvenile Expungement Fund
assessment on each count in defendant's case. The $30 juvenile-expungement assessment is
listed on the clerk's printout as a $10 assessment for the Clerk Operations and Administrative
Fund, a $10 assessment for the State's Attorney Office Fund (the $10 assessment for the State's
Attorney is included in the $40 charge listed for the State's Attorney on the clerk's printout), and a
$10 assessment for the State Police Services Fund. Section 5-9-1.17 of the Unified Code
provides, in pertinent part:
"(a) There shall be added to every penalty imposed in
sentencing for a criminal offense an additional fine of $30 to be
imposed upon a plea of guilty or finding of guilty resulting in a
judgment of conviction.
(b) Ten dollars of each such additional fine shall be remitted
to the State Treasurer for deposit into the State Police Services Fund
***, $10 shall be paid to the State's Attorney's Office that
prosecuted the criminal offense, and $10 shall be retained by the
Circuit Clerk for administrative costs associated with the
expungement of juvenile records and shall be deposited into the
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Circuit Court Clerk Operation and Administrative Fund."
(Emphases added.) 730 ILCS 5/5-9-1.17 (West 2010).
¶ 127 The plain language of section 5-9-1.17 clearly shows the legislature intended this
assessment to be a fine. The statute refers to the assessment as "an additional fine" that is to "be
added to every penalty imposed in sentencing for a criminal offense." 730 ILCS 5/5-9-1.17(a)
(West 2010). Further, "the charge [is] used to expunge juvenile records and is in no way related
to the prosecution of the adult defendant against whom the charge is levied." People v. Wynn,
2013 IL App (2d) 120575, ¶ 16, 3 N.E.3d 400; see Larue, 2014 IL App (4th) 120595, ¶ 56
(vacating the $30 juvenile-expungement fine because the clerk lacked authority to assess it).
Because the $30 juvenile-expungement assessment (including the three separate $10 assessments
contained therein) is a fine, the circuit clerk cannot properly impose it. We vacate the $30
juvenile-expungement fine—listed as three separate $10 charges for the Circuit Clerk Operations
and Administrative Fund, State's Attorney's Office Fund, and State Police Services
Fund—imposed on each count in defendant's case. (We note our vacatur of the $10 assessment
paid to the State's Attorney's Office that prosecuted the offense under section 5-9-1.17 does not
affect the $30 to which the State's Attorney was entitled on each count for the two felony
convictions in this case under section 4-2002(a) of the Counties Code (55 ILCS 5/4-2002(a) (West
2010)).)
¶ 128 The plain language of section 5-9-1.17 clearly shows the legislature intended this
fine to be imposed on each count in a defendant's case. The statute provides the fine is to "be
added to every penalty imposed in sentencing for a criminal offense." (Emphasis added.) 730
ILCS 5/5-9-1.17(a) (West 2010). The fine is "to be imposed upon a plea of guilty or finding of
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guilty resulting in a judgment of conviction." 730 ILCS 5/5-9-1.17(a) (West 2010). Because a
defendant can properly be found guilty of and sentenced for multiple criminal offenses in a case,
the juvenile-expungement fine can be properly imposed on each count in a defendant's case. On
remand, the trial court must reimpose the $30 juvenile-expungement fine on each count in
defendant's case.
¶ 129 (m) The Drug-Court Assessments:
A Fine Improperly Imposed by the Clerk
¶ 130 The record shows the circuit clerk imposed a $5 drug-court assessment on each
count in defendant's case. Section 5-1101(f) of the Counties Code provides, in pertinent part:
"(f) In each county in which a drug court has been created,
the county may adopt a mandatory fee of up to $5 to be assessed as
provided in this subsection. Assessments collected by the clerk of
the circuit court pursuant to this subsection must be deposited into
an account specifically for the operation and administration of the
drug court. *** The fees are to be paid as follows:
***
(2) a fee of up to $5 paid by the defendant on a
judgment of guilty or a grant of supervision under Section
5-9-1 of the Unified Code of Corrections for a felony; for a
Class A, Class B, or Class C misdemeanor; for a petty
offense; and for a business offense." 55 ILCS 5/5-1101(f)
(West 2010).
¶ 131 In this case, the $5 drug-court assessment imposed by the circuit clerk was a fine,
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despite its label as a "fee," because the assessment is intended to be used "for the operation and
administration of the drug court." 55 ILCS 5/5-1101(f) (West 2010). Because defendant never
participated in drug court, this assessment did not reimburse the state for the costs of prosecuting
defendant. People v. Unander, 404 Ill. App. 3d 884, 886, 936 N.E.2d 795, 797 (2010); Rexroad,
2013 IL App (4th) 110981, ¶ 53, 992 N.E.2d 3 ("Although the drug court assessment pursuant to
section 5-1101(f) of the Counties Code [citation] is labeled a fee, it is actually a fine where, as
here, defendant did not participate in drug court."). Because the clerk imposed the $5 drug-court
fines after sentencing, we vacate these fines.
¶ 132 The plain language of section 5-1101(f)(2) of the Counties Code shows the
legislature intended this fine to be imposed on each count in a defendant's case. The statute
provides the assessment is to be paid by a defendant "on a judgment of guilty or a grant of
supervision." 55 ILCS 5/5-1101(f)(2) (West 2010). Because a defendant may have a judgment
of guilty rendered on each count within a case, the plain language of the statute clearly evidences
the legislature's intent a defendant may be assessed the drug-court fine on each count within his
case. On remand, the trial court must reimpose a $5 drug-court fine on each count in defendant's
case.
¶ 133 (n) The VCVA Assessments:
A Noncreditable Fine Improperly Imposed by the Clerk
¶ 134 The record shows the circuit clerk imposed a $236 VCVA assessment on count I
and a $4 VCVA assessment on count II. Section 10(b) of the Violent Crime Victims Assistance
Act provides, in pertinent part:
"[T]here shall be an additional penalty collected from each
defendant upon conviction of any felony *** of $4 for each $40, or
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fraction thereof, of fine imposed. *** Such additional penalty
shall not be considered a part of the fine for purposes of any
reduction made in the fine for time served either before or after
sentencing." (Emphases added.) 725 ILCS 240/10(b) (West
2010).
¶ 135 The plain language of section 10(b) shows the legislature intended this assessment
to be imposed as punishment in a criminal case. The statute labels the assessment "an additional
penalty" (725 ILCS 240/10(b) (West 2010)), which shows the legislature intended this assessment
to be punitive in nature. Further, courts have previously held, some for over 25 years, the circuit
clerk is without authority to impose the VCVA assessment, referring to the assessment as a fine.
Rexroad, 2013 IL App (4th) 110981, ¶ 55, 992 N.E.2d 3; People v. Wisotzke, 204 Ill. App. 3d 44,
50, 561 N.E.2d 1310, 1313 (1990) (Second District); People v. Scott, 152 Ill. App. 3d 868, 873,
505 N.E.2d 42, 46 (1987) (Fifth District); People v. Tarbill, 142 Ill. App. 3d 1060, 1061, 492
N.E.2d 942, 942 (1986) (Third District). We vacate the VCVA fines in this case, as those
assessments could not properly be imposed by the clerk.
¶ 136 The plain language of the statute clearly evidences the legislature's intent the fine
be assessed on each count, as the statute provides the penalty is to be imposed upon conviction.
725 ILCS 240/10(b) (West 2010). Because a defendant may be convicted of multiple offenses
within a single case, defendant could properly be ordered to pay a VCVA fine on each count.
¶ 137 On remand, the trial court must reimpose a VCVA fine on each count. This task
may require the court to recalculate the fine, which will require the court to calculate the total
fines, including the traffic/criminal surcharge, imposed pursuant to each count and impose an
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additional penalty of $4 for each $40, or fraction thereof, of fine imposed. 725 ILCS 240/10(b)
(West 2010); see Williams, 2013 IL App (4th) 120313, ¶ 21, 991 N.E.2d 914 (" 'Lump Sum
Surcharge' " imposed pursuant to section 5-9-1(c) of the Unified Code is to be calculated before
the VCVA assessment; surcharge is added to the total fines and VCVA assessment is calculated
based on the new total); O'Laughlin, 2012 IL App (4th) 110018, ¶ 24, 979 N.E.2d 1023 (amount of
surcharge fine is based upon the gross amount of fines levied against defendant; VCVA
assessment to be imposed after surcharge is calculated).
¶ 138 (o) The State Police Operations Assessments:
A Fine Improperly Imposed by the Clerk
¶ 139 The record shows the circuit clerk imposed a $10 State Police operations
assessment on each count in defendant's case. Subsection (1.5) of section 27.3a of the Clerks of
Courts Act (Clerks Act) (705 ILCS 105/27.3a(1.5) (West 2010)) provides, in pertinent part:
"1.5. Starting on the effective date of this amendatory Act
of the 96th General Assembly, a clerk of the circuit court in any
county that imposes a fee pursuant to subsection 1 of this Section
[(the automation fee)], shall charge and collect an additional fee in
an amount equal to the amount of the fee imposed pursuant to
subsection 1 of this Section. This additional fee shall be paid by
the defendant in any felony, traffic, misdemeanor, local ordinance,
or conservation case upon a judgment of guilty or grant of
supervision." (Emphases added.) 705 ILCS 105/27.3a(1.5) (West
2010).
Subsection (5) of section 27.3a of the Clerks Act (705 ILCS 105/27.3a(5) (West 2010)) requires
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the clerk to remit this additional assessment to the State Treasurer for deposit into the State Police
Operations Assistance Fund.
¶ 140 In People v. Millsap, 2012 IL App (4th) 110668, ¶ 31, 979 N.E.2d 1030, this court
held the State Police operations assistance fee is a fine for the purpose of calculating a defendant's
VCVA fine. See 725 ILCS 240/10(b) (West 2010). Because this assessment is a fine, the circuit
clerk could not properly impose this assessment against defendant. We vacate its imposition.
¶ 141 The plain language of section 27.3a(1.5) clearly evidences the legislature's intent
this fine be assessed only once in a defendant's case. The fee is to be paid by the defendant "in any
felony, traffic, misdemeanor, local ordinance, or conservation case." 705 ILCS 105/27.3a(1.5)
(West 2010). Because the language of the statute refers to cases, and not individual convictions,
the State Police operations assistance fine may be assessed only once per case. See Larue, 2014
IL App (4th) 120595, ¶ 64. On remand, the trial court must reimpose this fine on only one of the
two counts.
¶ 142 2. The DNA Analysis Fee
¶ 143 Defendant argues the circuit clerk improperly assessed defendant a $250 DNA
analysis fee after the trial court conditionally ordered the fee at defendant's sentencing hearing.
Defendant contends the imposition of this fee is void and must be vacated. The State concedes
the $250 DNA analysis fee must be vacated. We accept the State's concession.
¶ 144 While the DNA analysis assessment is a fee (see People v. Guadarrama, 2011 IL
App (2d) 100072, ¶ 13, 955 N.E.2d 615 (holding the DNA analysis assessment is a "fee" because
"the fee is used to cover the costs incurred in collecting and testing a DNA sample that is taken
from a defendant convicted of a qualifying offense"))—meaning the circuit clerk could properly
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impose it if a defendant was ordered to submit to DNA analysis—its imposition in this case was
not authorized and, thus, we vacate the $250 DNA analysis fee. In People v. Marshall, the
supreme court found the defendant was improperly ordered to submit to DNA analysis and pay the
attendant fee where he had previously submitted a DNA sample for analysis and paid the fee.
People v. Marshall, 242 Ill. 2d 285, 303, 950 N.E.2d 668, 679 (2011). In Marshall, the court held
trial courts are authorized "to order the taking, analysis and indexing of a qualifying offender's
DNA, and the payment of the analysis fee only where that defendant is not currently registered in
the DNA database." Id. (Based on this language, we also conclude the fee cannot be imposed on
each count in a case.)
¶ 145 In this case, the trial court's order regarding DNA analysis was consistent with the
supreme court's holding in Marshall. At defendant's July 2012 sentencing hearing, the court
stated as follows: "If [defendant] has not already done so—and I can't imagine how he has
not—then he would have to submit a specimen for genetic testing in accordance with the statute,
and only then would he have to pay the genetic marker grouping analysis fee of $250." In other
words, the court conditioned the imposition of the DNA analysis fee on whether defendant had
previously submitted a specimen for testing.
¶ 146 Defendant has attached as an appendix to his brief a printout from the Illinois State
Police, Division of Forensic Services, which shows defendant submitted a blood sample for DNA
analysis on February 17, 2005. The record confirms defendant previously submitted a DNA
sample for a previous case. The PSI states, "On [February 17, 2005], the defendant submitted a
DNA sample on a previous case." Yet, the circuit clerk's printout containing the fines and fees
assessed against defendant in this case shows he was assessed a $250 DNA analysis fee. Because
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the record shows defendant submitted a DNA sample for analysis in 2005, the DNA analysis fee
imposed by the clerk in this case is void. Id. at 302, 950 N.E.2d at 679. We vacate the $250
DNA analysis fee imposed by the clerk.
¶ 147 3. The Street-Value Fine
¶ 148 The State argues the trial court, on remand, must increase the $340 street-value fine
imposed to reflect the value of all the crack cocaine seized on March 18, 2011. Specifically, the
State argues defendant was found guilty of unlawful possession with intent to deliver 7.2 grams of
crack cocaine, which included the 2.6 grams of crack cocaine located in Rosas's vagina. The
State argues the court failed to include the 2.6 grams of crack cocaine located in Rosas's vagina in
its calculation of the street-value fine. The State extrapolates the value of the additional crack
cocaine based on the per-gram value of the crack cocaine, deduced from the evidence taken at trial
on the value of the 4.6 grams found in the hotel room ($340 divided by 4.6 grams is $73.91
per-gram value), and seeks to increase the fine by $192 ($73.91 per gram multiplied by 2.6 grams
is $192).
¶ 149 In his reply brief, defendant characterizes the State's argument as an unauthorized
cross-appeal. Specifically, defendant argues (1) the State's contention is a free-standing claim of
error; (2) the State may not properly appeal the imposition of a fine because such appeals by the
State are not authorized by Illinois Supreme Court Rule 604(a) (eff. July 1, 2006); and (3) the order
imposing the street-value fine is "at best" voidable, not void, and as such, the State forfeited its
claim of error.
¶ 150 Defendant contends because he did not challenge the value of the street-value fine
imposed by the judge, "[t]he State's argument is thus not in response to an argument about a
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'judgment [***] from which the appeal is taken' " (quoting Ill. S. Ct. R. 615(b)(1) (eff. Jan. 1,
1967)). In this case, defendant's notice of appeal indicates he is challenging his conviction and
sentence. Therefore, defendant placed his entire sentence, which includes the street-value fine
(see Chester, 2014 IL App (4th) 120564, ¶ 32, 5 N.E.3d 227 (fines are part of sentence a judge
must impose)), before this court for review. Further, defendant seeks an additional two days'
credit against his sentence, which would be accompanied by a $5 per day credit against creditable
fines, one of which is the street-value fine. We do not, as defendant suggests, characterize the
State's pointing out of a sentencing error to be a "free-standing claim of error," because defendant
put his entire sentence at issue.
¶ 151 Even if, for the sake of argument, we considered the State's street-value fine
argument to be a "free-standing claim of error," we would not change our conclusion the State
could properly point out this error. Rule 604(a) strictly limits the circumstances under which the
State may appeal a trial court's judgment. Ill. S. Ct. R. 604(a) (eff. July 1, 2006); see also People
v. Ramos, 339 Ill. App. 3d 891, 904, 791 N.E.2d 592, 603 (2003) (the rule "strictly limits the State's
right to appeal"). The rule does not permit the State to challenge the propriety of the sentence
imposed on a defendant. City of Chicago v. Roman, 184 Ill. 2d 504, 509-10, 705 N.E.2d 81, 85
(1998). Where an appeal by the State is not authorized by Rule 604(a), the appellate court lacks
jurisdiction to entertain the issue. In re K.E.F., 235 Ill. 2d 530, 540-41, 922 N.E.2d 322, 328
(2009).
¶ 152 The State may, however, seek to correct a void or partially void judgment on
appeal. See People v. Malchow, 306 Ill. App. 3d 665, 675-76, 714 N.E.2d 583, 591 (1999)
(where the trial court ordered a sentence less than that mandated by statute, the sentence was
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"illegal and void" and "the appellate court ha[d] the authority to correct the sentence at any time,
and Rule 604(a)(1) [did] not limit the State's right to appeal"). "A void judgment is one entered
by a court that lacks, inter alia, the inherent power to make or enter the particular order involved.
A void judgment may be attacked at any time, either directly or collaterally." Roman, 184 Ill. 2d
at 510, 705 N.E.2d at 85. A trial court is obligated to order the criminal penalties mandated by the
legislature and has no authority to impose punishment other than what is provided for by statute.
Id. "The court exceeds its authority if it orders a lesser sentence than what the statute mandates."
Id. The legislature has mandated the imposition of the street-value fine of an amount not less than
the full street value of the drugs seized. 730 ILCS 5/5-9-1.1(a) (West 2010); People v. Banks, 213
Ill. App. 3d 205, 213-14, 571 N.E.2d 935, 940 (1991) (because the street-value fine is mandatory,
the court remanded for imposition of the fine).
¶ 153 In this case, defendant was charged in count I with both the 4.6 grams of crack
cocaine located in the hotel room and the 2.6 grams later recovered from Rosas's person. The
State presented evidence of the street value of only the 4.6 grams recovered from the hotel room.
Sergeant Baltzell testified the 17 individually wrapped packages had a street value of $340. The
trial court orally ordered defendant to pay a $340 street-value fine as part of his sentence. The
court ordered a sentence less than what is mandated by statute because the $340 street-value fine
did not account for the 2.6 grams of crack cocaine later recovered from Rosas's person.
Defendant's sentence was void to the extent the street-value fine ordered by the court was less than
the street-value of all the crack cocaine recovered in this case. Accordingly, on remand, the court
must increase the street-value fine to reflect the value of all the crack cocaine seized in this case.
730 ILCS 5/5-9-1.1(a) (West 2010).
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¶ 154 4. Other Issues With Fines and Fees
¶ 155 Upon our examination of the record, we found other errors neither party raised
regarding the imposition of the fines and fees in this case. For instance, the trial court, at
defendant's sentencing hearing, ordered defendant to pay a $2,000 mandatory assessment pursuant
to section 411.2(a)(2) of the Illinois Controlled Substances Act (720 ILCS 570/411.2(a)(2) (West
2010)). The circuit clerk's printout, however, shows the clerk only assessed a $1,275 mandatory
assessment. The record provides no explanation for the disparity between what the court
expressly ordered and what the clerk later assessed. Presumably, the clerk assessed the $2,000
mandatory assessment as ordered by the court and used the $725 credit to which defendant is
entitled to offset part of the assessment, leaving $1,275 of the mandatory assessment outstanding.
¶ 156 The trial court also ordered defendant to pay a crime-lab analysis fee of $100
during his sentencing hearing. Although the circuit clerk's printout contains an entry for the
crime-lab analysis fee, no dollar amount is listed next to the entry. The record again provides no
explanation for the disparity between what the court expressly ordered and the clerk's failure to
assess it.
¶ 157 On remand, the trial court, when reimposing the fines vacated herein, should ensure
the amended sentencing judgment containing the fines and fees assessed against defendant
contains the $2,000 mandatory assessment (720 ILCS 570/411.2(a)(2) (West 2010)) and the $100
crime-lab analysis fee (730 ILCS 5/5-9-1.4(b) (West 2010)) ordered by the court during
defendant's sentencing hearing, as well as the amounts creditable against either.
¶ 158 C. Sentencing Credit
¶ 159 We initially note the parties agree the PSI lists the incorrect dates for defendant's
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first period of pretrial incarceration. The PSI indicates defendant was in custody for this offense
starting on March 21, 2011, and ending on July 1, 2011, when he posted bond. However, the
parties agree and the record confirms defendant was in custody for this offense starting March 18,
2011, when he was arrested. The PSI also indicates defendant was in custody for this offense on
July 2, 2012, which was the date he was sentenced. The parties agree defendant should not be
credited for July 2, 2012. See People v. Williams, 239 Ill. 2d 503, 510, 942 N.E.2d 1257, 1262
(2011) (holding "the date a defendant is sentenced and committed to the Department [of
Corrections] is to be counted as a day of sentence and not as a day of presentence credit").
¶ 160 The parties do not agree as to the total amount of days for which defendant is
entitled credit. Defendant initially argued he was entitled to two additional days of credit toward
his sentence for his time in pretrial custody for March 18, 2011, through March 20, 2011 (less one
day for July 2, 2012), and $10 of additional monetary credit toward the creditable fines imposed
upon him.
¶ 161 The State responds by arguing defendant is not entitled to the two additional days
of credit. Specifically, the State argues where, as here, a defendant is out on bond for one offense
and is subsequently arrested and placed in custody for another offense, the defendant is returned to
custody on the initial offense when his or her bond is revoked or withdrawn (People v. Arnhold,
115 Ill. 2d 379, 383, 504 N.E.2d 100, 101 (1987)), unless he is surrendered on the initial offense to
serve simultaneous custody for both offenses (People v. Robinson, 172 Ill. 2d 452, 459, 667
N.E.2d 1305, 1308 (1996)). Using the day defendant's bond was revoked, May 24, 2012, the
State contends the calculation of time served contained in the PSI was correct.
¶ 162 In his reply brief, defendant argues he is actually entitled to three additional days of
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credit toward his sentence pursuant to section 5-4.5-100(c) of the Unified Code (730 ILCS
5/5-4.5-100(c) (West 2012)) and People v. Cook, 392 Ill. App. 3d 147, 150-51, 910 N.E.2d 208,
210 (2009), but he abandons his argument he is entitled to additional monetary credit against his
creditable fines. Specifically, defendant argues the State is arguing for the first time on appeal the
court erred in granting defendant credit for May 22, 2012, and May 23, 2012. Defendant points
out the State relied on facts not in the record—the Champaign County circuit clerk's website—to
come to its calculation of credit. Using information from the Champaign County circuit clerk's
website, defendant ascertained he was in custody on May 21, 2012, through May 23, 2012, for an
offense he committed while on bail in Champaign County case No. 12-CF-773. Because the
charges in case No. 12-CF-773 were ultimately dropped, defendant will not be awarded credit for
the three days he spent in jail as a result of the newer charges. See 730 ILCS 5/5-4.5-100(c) (West
2010). Therefore, defendant urges he is entitled to credit for May 21, 2012, May 22, 2012, and
May 23, 2012, for a total of 148 days' credit.
¶ 163 Defendant has the burden to present a record showing the error of which he
complains. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984). In this case,
the trial court ordered, with agreement of the parties, defendant is entitled to 145 days' credit
toward his sentence. To get any credit for May 21, 2012, through May 23, 2012, defendant must
show he tendered his surrender on the offenses charged in the instant case. See Robinson, 172 Ill.
2d at 459, 667 N.E.2d at 1308. The record contains no indication defendant tendered his
surrender for the offenses charged in this case, and as such, he is not entitled to credit for May 21,
2012, through May 23, 2012. The record does show defendant's bond was revoked on May 24,
2012. Using the date defendant's bond was revoked, the 145 days' credit listed in the PSI is
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correct—although the dates relied on to reach this calculation are incorrect.
¶ 164 In his petition for rehearing, defendant argues our decision in this case is
inconsistent with Cook, where we awarded defendant additional credit against his sentence
pursuant to section 5-8-7(c) of the Unified Code (730 ILCS 5/5-8-7(c) (West 2006)), which has
since been renumbered as section 5-4.5-100(c) of the Unified Code. See People v. Clark, 2014 IL
App (4th) 130331, ¶ 21. Section 5-4.5-100(c) of the Unified Code provides:
"CREDIT; TIME IN CUSTODY; FORMER CHARGE. An
offender arrested on one charge and prosecuted on another charge
for conduct that occurred prior to his or her arrest shall be given
credit on the determinate sentence or maximum term and the
minimum term of imprisonment for time spent in custody under the
former charge not credited against another sentence." 730 ILCS
5/5-4.5-100(c) (West 2010).
¶ 165 In Cook, the State charged the defendant, on November 16, 2007, with theft for
conduct occurring on November 2, 2007. Cook, 392 Ill. App. 3d at 148, 910 N.E.2d at 209. On
December 10, 2007, the State charged the defendant, in a separate case, with unlawful possession
of a controlled substance. Id. The conduct underlying the possession charge was committed
while the defendant was out on bail for the original theft charge. Id. On January 18, 2008, the
State charged the defendant with aggravated criminal sexual abuse for conduct occurring on
August 31, 2007. Id. (Later in the opinion, the majority states, "On January 30, 2008, while
defendant was released on bond in both of his 2007 cases, defendant was arrested and charged with
aggravated criminal sexual abuse (his 2008 case)." Id. at 149, 910 N.E.2d at 209.). In exchange
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for a guilty plea as to the theft and possession charges, the State agreed to drop the remaining
charge of aggravated criminal sexual abuse. Id. at 148-49, 910 N.E.2d at 209.
¶ 166 After his arrest on January 30, 2008, for aggravated criminal sexual abuse, the
defendant spent 26 days in custody before he, on February 25, 2008, surrendered his bond in the
theft and possession cases. Id. at 149, 910 N.E.2d at 209-10. We awarded the defendant the
additional 26 days' credit against his sentence where he "(1) was arrested for aggravated criminal
sexual abuse ***, (2) was prosecuted for theft over $300 *** which involved conduct that
occurred prior to his arrest in [the aggravated-criminal-sexual-abuse case], and (3) did not receive
credit for the time spent in custody in [the aggravated-criminal-sexual-abuse case] against another
sentence." Id. at 150, 910 N.E.2d at 210.
¶ 167 While defendant's petition for rehearing was pending, this court decided Clark,
2014 IL App (4th) 130331. In Clark, we declined to follow the interpretation and analysis of
section 5-4.5-100(c) set forth by the majority in Cook. Id. ¶ 25. Instead, we elected to follow the
analysis set forth by Justice Pope in her dissent and held defendant was not entitled to additional
credit where he sought credit against his sentence for the original charge for time he spent in
custody on a subsequent charge. Id. ¶ 26.
¶ 168 Justice Pope's reading of subsection (c) in her dissent in Cook (Cook, 392 Ill. App.
3d at 151-52, 910 N.E.2d at 211-12 (Pope, J., dissenting)) is consistent with Robinson, wherein the
supreme court explained the purpose of section 5-4.5-100(c) was "to 'prevent the State from
dropping an initial charge and recharging a defendant with another crime, with the intent of
denying credit for time spent in jail on the first charge.' " (Emphases added.) Robinson, 172 Ill.
2d at 460, 667 N.E.2d at 1309 (quoting People v. Townsend, 209 Ill. App. 3d 987, 990, 568 N.E.2d
- 53 -
946, 948 (1991)); see also People v. Kane, 136 Ill. App. 3d 1030, 1035, 484 N.E.2d 296, 300
(1985) ("The purpose of subsection (c) is to insure credit for all confinement since arrest in the
circumstance where the original charge is dropped in favor of a new charge which results in
conviction and imprisonment." (Emphasis added and internal quotation marks omitted.)). The
Robinson court determined section 5-4.5-100(c) did not apply "[b]ecause the initial charge against
defendant was not dropped in favor of a subsequent charge." Robinson, 172 Ill. 2d at 461, 667
N.E.2d at 1309.
¶ 169 Here, defendant seeks credit against his sentence for the initial charges, in case No.
11-CF-443, for time he spent in custody as a result of a subsequent charge, in case No. 12-CF-773.
Because the initial charges were not dropped in favor of the subsequent charge, defendant is not
entitled to credit for May 21, 2013, to May 23, 2013, under section 5-4.5-100(c) of the Unified
Code. Id.; Clark, 2014 IL App (4th) 130331, ¶ 26. We affirm the court's order finding defendant
is entitled to 145 days' credit against his sentence and $725 credit toward any creditable fines
imposed in this case.
¶ 170 A vast amount of judicial resources are expended in the appellate court to resolve
issues concerning the ever-expanding morass of fines and fees enacted by the legislature. See
People v. Folks, 406 Ill. App. 3d 300, 309, 943 N.E.2d 1128, 1135 (2010); O'Laughlin, 2012 IL
App (4th) 110018, ¶ 28, 979 N.E.2d 1023; Williams, 2013 IL App (4th) 120313, ¶ 25, 991 N.E.2d
914; Chester, 2014 IL App (4th) 120564, ¶ 35, 5 N.E.3d 227; Montag, 2014 IL App (4th) 120993,
¶ 38, 5 N.E.3d 246. In Folks, we called for a "comprehensive legislative revision in the
assessment of fines, fees, costs and the $5-per-day credit for time spent in custody prior to
sentencing." Folks, 406 Ill. App. 3d at 309, 943 N.E.2d at 1135. The legislature continues to
- 54 -
enact new fines, fees, and costs—in this case, leading to the imposition of 33 separate assessments.
This adds more complexity to many cases where the monetary assessments may not even be
collected. Perhaps the legislature will answer our call.
¶ 171 We stress the importance of the need for all parties involved—the trial court, the
State's Attorney's office, the criminal defense bar, and the circuit clerk's office—to ensure fines are
properly imposed by the trial court with the attorneys and the defendant in attendance and on
notice. This process requires active participation from the parties. We understand it is a burden
to navigate the murky waters of fines and fees, but it is a burden required by law. We recognize it
is the long-standing practice of the circuit court clerks to impose the fees and costs associated with
criminal cases, but this does not excuse the similar treatment of fines, which are a component of
the sentence to be imposed by the sentencing judge. Fines are a component of the sentence, and
we require the help of the parties to fulfill our duties in resolving these issues on review. This
requires the statement of facts in each brief to identify the fines imposed and whether the court or
circuit clerk imposed them, with citations to the record. See Chester, 2014 IL App (4th) 120564,
¶ 35, 5 N.E.3d 227.
¶ 172 III. CONCLUSION
¶ 173 We affirm in part and vacate in part the trial court's judgment and remand for the
trial court to reimpose the mandatory fines vacated herein and impose all other fines mandated by
statute. We encourage the trial court to review the reference sheet this court provided in Williams,
2013 IL App (4th) 120313, 991 N.E.2d 914 (appendix), to assist in ensuring the statutorily
mandated fines in criminal cases are properly imposed. The State's Attorney's office can best
provide guidance as to which fines the county has required by ordinance or resolution. See Pohl,
- 55 -
2012 IL App (2d) 100629, ¶¶ 11, 21, 969 N.E.2d 508. As part of our judgment, we award the
State its $50 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002(a)
(West 2012).
¶ 174 Affirmed in part and vacated in part; cause remanded with directions.
- 56 -
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