Opinion
No. 1-11-2289
03-29-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NABIL EL-SORROGY, 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. 11 MC3 51351
The Honorable
Anthony A. Iosco,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Cunningham and Delort concurred in the judgment.
ORDER
¶ 1 Held: Where the trial court was aware that the defendant owned a taxi cab and a taxi cab service, had a job as a taxi cab driver, was represented by a private lawyer at trial, and received a disposition of supervision which would enable him to continue to work, the trial court had considered the defendant's financial resources and future ability to pay a $750 fine, and remand to determine his ability to pay the fine was not necessary. ¶ 2 Following a bench trial, defendant Nabil El-Sorrogy was found guilty of disorderly conduct, placed on supervision for six months, and ordered to complete 40 hours of anger management counseling and a physical evaluation by the Secretary of State. Defendant was also ordered to pay a $750 fine and $100 in court costs. On appeal, defendant contends that the cause should be remanded to a different judge to determine his ability to pay the fine. ¶ 3 The common law record reveals that defendant was born in 1941 and that he was a taxi driver employed by Riviera Taxi. The address for Riviera Taxi was the same as defendant's home address. At approximately 2:11 a.m. on May 22, 2011, in Palatine, Illinois, defendant disturbed and alarmed a passenger in his taxi, Jessica Mason, by repeatedly locking the doors to his taxi to prevent her from getting out. Defendant was cited for disorderly conduct under a municipal ordinance. ¶ 4 No court reporter was present during the trial and sentencing hearing, so defendant did not file transcripts of those proceedings, nor did he file a motion to reconsider the disposition. Defendant did submit a common law record, a proposed bystander's report that the trial court refused to sign, and a transcript of a post-sentencing proceeding held on July 5, 2012. A private attorney represented defendant at trial. The public defender who represented defendant at the post-sentencing hearing stated that he had spoken with the private attorney who had previously represented defendant, and that the private attorney specifically recalled that the court had not inquired into defendant's ability to pay the fine. The court stated that it recalled the case "very well." When the public defender stated he believed that the court needed to make an inquiry into defendant's ability to pay before assessing a fine, the court responded:
"Counsel, that's absurd. I used to do private defense work, private, my own office, unlike you who is [sic] on the County payroll. That's an absurd statement I have to inquire as to his ability to pay. He had a private attorney ***. Your statement is absurd,¶ 5 When the public defender asked the court to certify a bystander's report, the court denied the request and observed that it was "aberrant" and "almost illegal" that the public defender was even involved in the case. The court suggested that the situation was not fair to the taxpayers of Cook County and observed that defendant had not appeared in court that day. The court stressed that it had not made any inquiry into defendant's ability to pay because defendant had a private lawyer, a taxi cab, and a job. ¶ 6 On appeal, defendant contends that the matter should be remanded for a hearing on his ability to pay the imposed fine. Defendant argues that his use of a private attorney did not mean that he could afford to pay the fine because his relatives and friends could have paid the attorney fee, or he could have been working only part-time because he was an elderly man for whom the court had ordered a physical evaluation. The State responds that the trial court adequately considered defendant's financial resources and future ability to pay the fine. ¶ 7 Here, defendant was convicted of disorderly conduct under a local municipal ordinance and assessed a $750 fine. In determining the amount and method of payment of a fine, the court is required to consider the defendant's financial resources and future ability to pay. 730 ILCS 5/5-9-1(d)(1) (West 2010); People v. Maldonado, 109 Ill. 2d 319, 324 (1985); People v. Sturgess, 364 Ill. App. 3d 107, 118 (2006). The court's assessment of a fine will be upheld where "there were sufficient facts available to the trial court to determine the issue of imposition of a fine" and whether "the record indicates that the trial court considered the requisite factors ***." People v. Carrasquilla, 167 Ill. App. 3d 1069, 1077 (1988). The trial court is not required to state specifically that the defendant has adequate financial resources to pay a fine. People v. Bishop, 354 Ill. App. 3d 549, 563 (2004). In People v. Powell, 224 Ill. App. 3d 127, 139 (1991), the court observed that "[s]uch a finding is implicit where the judge is aware of facts which support that determination." ¶ 8 The standard of review is whether the trial court abused its discretion in ordering the payment of the fine. See Sturgess, 364 Ill. App. 3d at 118; People v. Williams, 256 Ill. App. 3d 370, 373 (1993); People v. Gaines, 104 Ill. App. 3d 974, 979 (1982). ¶ 9 Initially, we note that the record before us does not contain transcripts of the trial or the sentencing hearing at which the fine was imposed. Defendant's proposed bystander's report was not certified, and he has consequently failed to meet his burden of providing this court with an adequate record to support his claim of error. See People v. Deleon, 227 Ill. 2d 322, 342 (2008); Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). Furthermore, the portion of the record that defendant has provided gives us no reason to disturb the court's imposition of the $750 fine. The court considered that defendant had his own taxi service and his own cab, that he therefore had a job, and that he had retained a private attorney for trial. Also, the lenient disposition of court supervision enabled defendant to continue to work, thereby earning money to pay the fine. On this record, we find no abuse of discretion. See Sturgess, 364 Ill. App. 3d at 118-19 ($2,500 fine, which could be satisfied through 30 days of participation in the Sheriff's Work Alternative Program, for DUI defendant whose total annual income was $11,000, was not an abuse of discretion). ¶ 10 The judgment of the circuit court is affirmed. ¶ 11 Affirmed.
in my opinion."