Opinion
No. 1-15-1145
09-05-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DESHAWN PHILLIPS, 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. 14 CR 11172
Honorable Vincent M. Gaughan, Judge presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Simon and Mikva concurred in the judgment.
ORDER
¶ 1 Held: Two fees were erroneously imposed against defendant as part of his conviction and are vacated. In addition, a portion of his monetary credit for time spent in custody prior to sentencing is applied to offset two fines, thus reducing the total amount of fines and fees owed.
¶ 2 Following a bench trial, defendant Deshawn Phillips was convicted of unlawful possession of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2014)). He was sentenced to 40 months in prison and was ordered to pay various fines and fees, which are the
sole subject of this appeal. On appeal, defendant contends that the $5 electronic citation fee and the $5 court system fee were erroneously imposed in this case. He also argues that a portion of his monetary credit for the days he spent in custody should be applied to several other assessments that he contends are fines. For the reasons set out below, we vacate the electronic citation fee and court system fee and correct the fines and fees order.
¶ 3 At trial, the State presented evidence that defendant was found to be in possession of a weapon on May 11, 2014, and that he had a 2002 felony conviction for possession of a controlled substance with intent to deliver. The mittimus indicates defendant was convicted of a Class 2 felony and he should receive credit for 359 days in custody prior to his sentencing.
¶ 4 On appeal, this court reviews de novo the propriety of the trial court's imposition of fines and fees because it raises issues of statutory interpretation. People v. Green, 2016 IL App (1st) 134011, ¶ 44. Although defendant did not raise a challenge to his fines and fees order in the circuit court, he contends we can reach this issue under the plain-error doctrine, and he further contends the issue of applying presentence custody credit against his fines cannot be forfeited for failure to raise it in the circuit court. However, the State does not argue the points have been forfeited. Thus, the State has waived its own forfeiture argument and we can address the merits of defendant's appeal. People v. Taylor, 2016 IL App (1st) 141251, ¶ 28.
¶ 5 First, defendant contends, and the State correctly agrees, that the $5 electronic citation fee (705 ILCS 105/27.3e (West 2014)) and the $5 court system fee (55 ILCS 5/5-1101(a) (West 2014)) were erroneously imposed. Section 27.3e of the Clerk of Courts Act specifies the electronic citation fee applies only to a defendant who is involved in "any traffic, misdemeanor, municipal ordinance or conservation case." 705 ILCS 105/27.3e (West 2014). The court system
fee applies only to a defendant who violates the Illinois Vehicle Code or a similar provision of a county or municipal ordinance. 55 ILCS 5/5-1101(a) (West 2012). Here, defendant was convicted of a Class 2 felony in a weapons-related case; thus, this proceeding did not involve any of those types of offenses. People v. Maxey, 2016 IL App (1st) 130698, ¶ 139. Accordingly, the $5 electronic citation fee and the $5 court system fee are vacated.
¶ 6 Defendant's remaining contentions involve the application of presentence custody credit toward several other monetary assessments that were imposed against him. For each day of incarceration prior to sentencing, a defendant is entitled to a credit of $5 toward the monetary assessments levied against him as part of his conviction. 725 ILCS 5/110-14(a) (West 2014). Here, defendant served 359 days in presentence custody and accumulated $1,795 of credit toward his eligible fines and fees. Defendant was ordered to pay $474 in fines, fees and costs after the circuit court applied a portion of his presentence custody credit. We have vacated $10 of those fees in the prior paragraph.
¶ 7 We now consider if any additional charges may be offset by defendant's remaining amount of presentence custody credit. Before addressing the various assessments challenged by defendant, we note that under the plain language of section 110-14(a), that credit can be applied only to "fines" and not to "fees." 725 ILCS 5/110-14(a) (West 2014); People v. Johnson, 2011 IL 111817, ¶ 8.
¶ 8 A "fine" has been defined as a "pecuniary punishment imposed as part of a sentence on a person convicted of a criminal offense." Id., citing 19 Ill. L. and Prac. Fines, Forfeitures and Penalties § 2 (2009). In contrast, a "fee" has been 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." People v. Graves, 235 Ill. 2d 244, 250 (2009) (citing People v. Jones, 223 Ill. 2d 569, 581 (2006) (quoting People v. White, 333 Ill. App. 3d 777, 781 (2002))). The legislature's labeling of a charge as a "fine" or a "fee" is not dispositive, and the "most important factor is whether the charge seeks to compensate the state for any costs incurred as the result of prosecuting the defendant." Graves, 235 Ill. 2d at 250-51 (citing Jones, 223 Ill. 2d at 600).
¶ 9 The State concedes that two charges challenged by defendant should be offset by his presentence custody credit because they are monetary penalties that do not compensate the State for prosecuting a particular defendant. Accordingly, the $15 State Police operations assessment (705 ILCS 105/27.3a(1.5) (West 2014)) and the $50 court system charge (55 ILCS 5/5-1101(c)(1) (West 2014)) are offset by $65 of the credit that defendant accumulated for time spent in presentence custody. People v. Warren, 2016 IL App (4th) 120721-B, ¶ 147 (State Police operations charge is a fine); Graves, 235 Ill. 2d at 253 (charges assessed under section 5-1101 of the Counties Code constitute fines).
¶ 10 However, for the reasons set out below, the remaining assessments discussed by defendant on appeal are not "fines" under the definition set out above. Thus, those charges cannot be similarly offset.
¶ 11 First, defendant asserts that his presentence custody credit should be applied to both the $2 State's Attorney and $2 Public Defender records automation charges. The statute enacting the State's Attorney records automation charge indicates that amount is:
"[T]o 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. *** Expenditures from this fund may be made by the State's Attorney for hardware, software, research, and development costs and personnel related thereto." 55 ILCS 5/4-2002.1(c) (West 2012).
The statute authorizing the $2 Public Defender records automation fee uses the same language as quoted above in regard to the Public Defender's office. 55 ILCS 5/3-4012 (West 2012).
¶ 12 Defendant contends those charges do not compensate those offices for any automated recordkeeping used in the prosecution of his case. However, this court has issued several decisions concluding that those charges are fees, as opposed to fines. People v. Brown, 2017 IL App (1st) 150146, ¶ 38; People v. Murphy, 2017 IL App (1st) 142092, ¶ 22; Warren, 2016 IL App (4th) 120721-B, ¶ 115; People v. Bowen, 2015 IL App (1st) 132046, ¶¶ 62-65. We see no reason to depart from the analysis that when a charge lacks a punitive aspect, that charge is a fee, not a fine. Therefore, the State's Attorney and Public Defender records automation charges are fees and are not subject to offset.
¶ 13 Defendant next contends his presentence custody credit should be applied to offset the circuit court clerk's $15 automation fee (705 ILCS 105/27.3a(1), (1.5) (West 2014)) and the $15 document storage fee (705 ILCS 105/27.3c(a) (West 2014)). He argues that those assessments are fines because they do not seek to reimburse the State for costs incurred in his prosecution.
¶ 14 Defendant makes the same argument as to the $190 charge for the filing of a felony complaint (705 ILCS 105/27.2a(w)(1)(A) (West 2014)), asserting that charge is not meant to reimburse the clerk of the circuit court for its expenses and is an "arbitrary figure imposed with
the purpose of financing the clerk's mission as a whole." He argues the felony complaint charge is a fine because it is punitive and assesses a monetary amount that is based on the severity of his offense. In addition, defendant contends the $25 court services fee (55 ILCS 5/5-1103 (West 2014)) is a fine because it funds a portion of the court system and applies to all criminal defendants who are found guilty, as opposed to compensating the State for a cost incurred in his prosecution.
¶ 15 In People v. Tolliver, 363 Ill. App. 3d 94, 97 (2006), this court held those four assessments are fees because they are compensatory and represent a "collateral consequence" of a conviction. Brown, 2017 IL App (1st) 150146, ¶ 39 (citing Tolliver). This court has further held that the automation and document storage fees assist in the funding of the maintenance of those systems. People v. Martino, 2012 IL App (2d) 101244, ¶¶ 29-30. Also, this court has noted the statute authorizing the court services fee (55 ILCS 5/5-1103 (West 2014)) expressly states it is intended to defray the costs of court expenses and providing court security. People v. Pohl, 2012 IL App (2d) 100629, ¶¶ 11-12. Likewise, the felony complaint filing charge is a fee because it is compensatory, not punitive, in nature. People v. Bingham, 2017 IL App (1st) 143150, ¶¶ 41-42.
¶ 16 Defendant acknowledges Tolliver but asserts that since Tolliver was decided, our supreme court clarified in Graves that to be designated as a fee, the charge must reimburse the State for a cost that was incurred in his prosecution. Graves, 235 Ill. 2d at 250. However, as discussed above, the four penalties set out in the prior paragraph do represent a portion of the overall costs incurred in defendant's case.
¶ 17 Defendant also relies on People v. Smith, 2013 IL App (2d) 120691, to argue the felony complaint charge is punitive and therefore is a fine that should be offset. However, Smith involved the $50 court system charge (55 ILCS 5/5-1101(c)(1) (West 2014)), which was deemed in Graves to be a fine. Smith, 2013 IL App (2d) 120691, ¶ 21. In discussing the court system charge, Smith noted that it met the description of a fine because the amount of the charge is based on the classification of the defendant's crime (felony, misdemeanor, etc.) and the amount was "not explicitly tied to, and bears no inherent relationship to, the actual expenses involved in prosecuting the defendant." Id. Smith does not warrant the same finding as to the felony complaint charge. The Smith court was bound by the supreme court's holding in Graves that the court system charge at issue was a fine. Id. ¶ 20 (citing Graves, 235 Ill. 2d at 251). Neither Smith nor Graves addressed the felony complaint charge.
¶ 18 Both before and since the supreme court decided Graves, this court has held the felony complaint charge is a fee not subject to offset by presentence custody credit. Bingham, 2017 IL App (1st) 143150, ¶¶ 41-42; Brown, 2017 IL App (1st) 150146, ¶ 39; Tolliver, 363 Ill. App. 3d at 97. The fact that the felony complaint charge is not tailored to each case does negate that it does, at least in part, compensate the State for the costs incurred in a prosecution. Graves, 235 Ill. 2d at 250 (a "fee" recovers the State's costs "in whole or in any part" for prosecuting the defendant).
¶ 19 We agree with Tolliver and other cases that have found the $15 automation and document storage fees, the $190 felony complaint fee and the $25 court services fee more closely meet the definition of a "fee" because they compensate the State for costs incurred in prosecuting a defendant and represent a "collateral consequence" of his conviction. Brown, 2017 IL App (1st)
150146, ¶ 39; People v. Heller, 2017 IL App (4th) 140658, ¶ 74. Thus, we conclude those charges are not offset by defendant's presentence custody credit.
¶ 20 The last assessment challenged by defendant is the $10 probation and court services operations fee (705 ILCS 105/27.3a (1.1) (West 2014)). The statute provides that the circuit court clerk in any county imposing a fee under subsection (1) "shall also charge and collect an additional $10 operations fee for probation and court services department operations." 705 ILCS 105/27.3a (1.1) (West 2014). Because the circuit court clerk's $15 automation fee was imposed under subsection (1) of the statute (705 ILCS 105/27.3a (1) (West 2014)), the circuit court was able to assess the $10 probation and court services operations charge in this case.
¶ 21 Defendant argues the $10 probation and court services operations charge is a fine subject to offset by his presentence custody credit because it is imposed regardless of whether probation services were used in a particular case. Defendant further contends his UUWF conviction did not make him eligible for a sentence of probation.
¶ 22 This court has specifically found that the classification of the $10 probation and court services operations charge as a fee or a fine depends upon whether the assessment reimburses the State for probation-related costs incurred in that particular case. People v. Rogers, 2014 IL App (4th) 121088, ¶ 37 (charge was a fee because it compensated the State for the cost of the probation office providing a presentence investigation (PSI) report; thus, defendant's sentencing credit could not be used to offset it); see also People v. Staake, 2016 IL App (4th) 140638, ¶ 106, appeal allowed, No. 121755 (March 29, 2017) (reaching same conclusion as Rogers). Rogers held that "the compensatory nature of the assessment will change in cases where the probation office is not involved in a defendant's prosecution." Rogers, 2014 IL App (4th) 121088, ¶ 38
(charge will be considered a fine in such cases). Rogers cited additional authority holding that in general, fees that are assessed relating to a defendant's probation are compensatory. See People v. White, 333 Ill. App. 3d 777, 782 (2002); People v. Despenza, 318 Ill. App. 3d 1155, 1157 (2001).
¶ 23 However, People v. Carter, 2016 IL App (3d) 140196, ¶ 56, declined to follow Rogers and held the charge is a fine because its purpose is to "generate a fund to support probation and court services, regardless of a defendant's actual utilization of those services." Defendant points out that the money collected from the charge is placed into a general fund that is used not only to fund probation services but also to support juvenile delinquency intervention programs and sex offender evaluation, treatment and monitoring programs. 705 ILCS 105/27.3a(1.2) (West 2014); 730 ILCS 110/15.1(e)(f) (West 2014). He thus contends the charge is a fine because the money is channeled to areas other than probation departments and is used to "fund the court system generally."
¶ 24 This court has rejected that contention in People v. Bradford, 2014 IL App (4th) 130288, ¶ 38, reversed on other grounds, 2016 IL 118674, where the defendant argued the $10 probation and court services operations charge did not reimburse the State for costs incurred in his prosecution because he was not sentenced to probation and was "neither a juvenile nor a sex offender." Bradford, 2014 IL App (4th) 130288, ¶ 38. This court disagreed, finding that the charge was a fee because it compensated the State in part for the cost of conducting an investigation and preparing a PSI report. Id. ¶ 40.
¶ 25 We elect to follow Rogers and the additional authority cited above. Here, the probation department prepared a PSI report relating to defendant for the trial court's use at sentencing.
Therefore, pursuant to Rodgers, the $10 probation and court services operations charge is a fee not subject to setoff. Rodgers, 2014 IL App (4th) 121088, ¶ 37.
¶ 26 In conclusion, the $5 electronic citation fee and the $5 court system fee imposed against defendant are vacated. Accordingly, defendant owes a total of $464 in assessments, reduced from the $474 amount imposed by the circuit court. Furthermore, defendant is entitled to have two fines, the $15 State Police operations assessment and the $50 court system charge, offset by a portion of his presentence custody credit. Applying that offset, the $464 amount owed by defendant is reduced to $399. We order the clerk of the circuit court to correct the fines and fees order to reflect a total amount due of $399.
¶ 27 Affirmed in part, vacated in part; fines and fees order corrected.