Opinion
No. 1-16-2409
04-29-2019
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORNELL DOTSON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 15 CR 20344
Honorable Maura Slattery Boyle, Judge, presiding.
JUSTICE WALKER delivered the judgment of the court.
Presiding Justice Mikva and Justice Griffin concurred in the judgment.
ORDER
¶ 1 Held: Where defendant is entitled to credit for fines, fees and costs, we correct the fines, fees, and costs order, and affirm in all other respects.
¶ 2 Defendant Cornell Dotson was charged with one count of possession of between 1 and 15 grams of heroin with intent to deliver within 1000 feet of a school. 720 ILCS 570/401(c)(1), 407(b)(1) (West 2014). Prior to defendant's bench trial, the State struck language from the information alleging the offense occurred within 1000 feet of a school. The trial court found
defendant guilty of the lesser included offense of possession of a controlled substance (720 ILCS 570/402(c) (West 2014)), and sentenced him to 3½ years' imprisonment. On appeal, defendant raises no claims of error regarding his trial or sentence, but challenges only certain assessed fines and fees. We affirm, and modify the fines, fees, and costs order.
¶ 3 BACKGROUND
¶ 4 The evidence at trial established that on November 20, 2015, a Chicago police officer observed defendant approach a group of people near a vacant lot, accept currency from three of the people, and hand them small items in return. The group disbursed and two officers approached defendant, who acknowledged having a bag of cannabis. The officers arrested and searched him, discovering 12 Ziplock bags of suspect heroin, 20 Ziplock bags of suspect crack cocaine, and $53. An evidence technician tested the contents of the 12 bags of suspect heroin, and determined they were positive for heroin and weighed four grams.
¶ 5 ANALYSIS
¶ 6 The trial court found defendant guilty of possession of a controlled substance and sentenced him to 3½ years' imprisonment. Defendant's mittimus reflected 260 days of presentence custody, but the fines, fees, and costs order, which assessed $1094, did not reflect per diem monetary credit for time served.
¶ 7 On appeal, defendant contends his fines, fees, and costs order should be corrected in several respects. Although defendant did not challenge his fines and fees in a postsentencing motion, he maintains we may review them pursuant to the plain-error doctrine. The State observes defendant did not preserve this issue for appeal, but agrees this court may review the
fines and fees. Consequently, the State has waived the forfeiture, and we will address the merits of defendant's fines and fees argument. People v. Brown, 2018 IL App (1st) 160924, ¶ 25.
¶ 8 On February 26, 2019, after this appeal was fully briefed, our Supreme Court adopted the new Illinois Supreme Court Rule 472, which sets forth the procedure in criminal cases for redressing sentencing errors in the "imposition or calculation of fines, fees, and assessments or costs" and "application of per diem credit against fines." Ill. S. Ct. R. 472 (a)(1), (2) (eff. Mar. 1, 2019). Rule 472 provides that effective March 1, 2019, the circuit court retains jurisdiction to correct these errors at any time following judgment in a criminal case, even during the pendency of an appeal. People v. Barr, 2019 IL App (1st) 163035, ¶¶ 5-6 (citing Ill. S. Ct. R. 472 (a) (eff. Mar. 1, 2019)). "No appeal may be taken" on the basis of any of the sentencing errors enumerated in the rule unless that alleged error "has first been raised in the circuit court." Ill. S. Ct. R. 472 (c) (eff. Mar. 1, 2019).
¶ 9 In this case, defendant did not challenge the fines and fees order in the circuit court, but instead, raises them for the first time on appeal. However, as he filed his notice of appeal prior to the effective date of Rule 472, and this court has found the rule applies prospectively, we will address the merits of his claims. Barr, 2019 IL App (1st) 163035, ¶¶ 6, 8, 15. Our review is de novo. Id. ¶ 16.
¶ 10 The parties correctly agree the defendant was erroneously assessed the $100 Methamphetamine Law Enforcement Fund Fee (730 ILCS 5/5-9-1.1-5(b) (West Supp. 2015)), $5 Electronic Citation Fee (705 ILCS 107.27.3e (West 2014)), and $5 Court System Fee (55 ILCS 5/5-1101(a) (West 2014)). The Methamphetamine Law Enforcement Fund Fee is inapplicable because defendant's convictions are not for methamphetamine-related offenses (People v. Glass,
2017 IL App (1st) 143551, ¶ 25), and the Electronic Citation Fee does not apply because defendant's convictions are felonies (People v. Robinson, 2015 IL App (1st) 130837, ¶ 115). As possession of a controlled substance is not a violation of the Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 2014)), or a similar county or municipal ordinance, the Court System Fee is also inapplicable. Glass, 2017 IL App (1st) 143551, ¶ 24. Accordingly, we vacate these assessments.
¶ 11 Defendant next argues other assessments imposed against him are fines that should be offset by his presentence custody credit. A defendant who is incarcerated on a bailable offense is allowed a $5-per-day credit to offset fines assessed against him. 725 ILCS 5/110-14(a) (West 2014); see also People v. Jones, 223 Ill. 2d 569, 599 (2006) (noting the presentence custody credit "can only reduce fines, not fees"). Here, defendant spent 260 days in presentence custody, and is therefore entitled to a credit of up to $1300.
¶ 12 The parties agree defendant should receive presentence custody credit against the $15 State Police Operations charge (705 ILCS 105/27.3a(1.5) (West 2014)) and the $50 Court System charge (55 ILCS 5/5-1101(c) (West 2014)). Although the fines, fees, and costs order classifies these assessments as "fees," these charges are fines. See People v. Ackerman, 2014 IL App (3d) 102585, ¶ 30 (the Court System fee is a fine); People v. Millsap, 2012 IL App (4th) 110668, ¶ 31 (the State Police Operations Fee is a fine). Therefore, these assessments are offset by defendant's presentence custody credit.
¶ 13 In his initial brief on appeal, defendant sought presentencing credit against a $190 Felony Complaint Filed, (Clerk) charge (705 ILCS 105/27.2a(w)(1)(A) (West 2014)); the $25 Document Storage (Clerk) charge (705 ILCS 105/27.3c (West 2014)); the $25 Automation (Clerk) charge
(705 ILCS 27.3a (West 2014); the $2 Public Defender Records Automation charge (55 ILCS 5/3-4012 (West 2014)); and the $2 State's Attorney Records Automation charge (55 ILCS 5/4-2002.1(c) (West 2014)). In light of People v. Clark, 2018 IL 122495, ¶ 51, wherein our supreme court determined these assessments are fees, defendant has withdrawn this argument in his reply brief.
¶ 14 CONCLUSION
¶ 15 We (1) vacate the $100 Methamphetamine Law Enforcement Fund Fee, $5 Electronic Citation Fee, and $5 Court System Fee, and (2) offset the $15 State Police Operations charge and $50 Court System charge against defendant's per diem presentence custody credit. The total amount of fines and fees is therefore reduced from $1094 to $919. Pursuant to our authority under Illinois Supreme Court Rule 615(b)(1) (eff. Jan. 1, 1967), we correct the fines, fees, and costs order accordingly, without remand.
¶ 16 Affirmed; fines, fees, and costs order corrected.