Opinion
4-23-1503
10-11-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHANE ROBERT EDWARD LONG, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McLean County No. 21CF407 Honorable John Casey Costigan, Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court Justices Zenoff and Knecht concurred in the judgment.
ORDER
DOHERTY, JUSTICE
¶ 1 Held: Appellate counsel's motion to withdraw was granted and the trial court's financial sentencing order was affirmed where the trial court properly determined that defendant did not have a statutory right to use his presentence custody credit to offset assessments.
¶ 2 Defendant Shane Robert Edward Long appeals from an order of the trial court denying his motion to correct a purported error in his financial sentencing order pursuant to Illinois Supreme Court Rule 472 (eff. May 17, 2019). We find no error and affirm.
¶ 3 I. BACKGROUND
¶ 4 Defendant was convicted of unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(e) (West 2020)) and sentenced to three years' imprisonment. At sentencing, the trial court heard evidence that the 826 grams of cannabis that defendant possessed had a street value of approximately $14,500.
¶ 5 Defendant's financial sentencing order required him to pay a total of $16,915, broken down as follows: a fine of $75; a sheriff's fee of $25; a felony drug offense assessment of $2215; a crime lab drug analysis assessment of $100; and a street-value assessment of $14,500. Defendant received $14,700 in presentence custody credit, which was applied to offset only the $75 fine, leaving defendant to pay the remaining $16,840. Defendant appealed.
¶ 6 While defendant's appeal was pending, he applied for a waiver of the assessments, but the trial court denied the application as untimely. See 725 ILCS 5/124A-20(b) (West 2022) (requiring the application to be filed no later than 30 days after sentencing); Ill. S.Ct. R. 404(a) (eff. July 1, 2019) (same). He then sent the court a letter requesting that the remainder of his presentence custody credit be applied to offset the remaining $16,840 he owed.
¶ 7 We affirmed defendant's conviction and sentence of imprisonment. However, we noted that any consideration of defendant's letter challenging the financial sentencing order would be premature where defendant had not filed a motion with the trial court under Illinois Supreme Court Rule 472 (eff. May 17, 2019). People v. Long, 2023 IL App (4th) 220793-U, ¶ 65.
¶ 8 Defendant filed a motion raising the issue, which the trial court denied, stating:
"The Clerk in applying the detention monetary credit applied it to all applicable fines. Defendant's fines were zeroed out. However, there were certain fees that do not receive the pretrial detention credit per statute. The statutory citation is on the summary financial sentencing order for reference. The fees did not receive the credit which left defendant with the balance shown. The calculation has been rechecked and is correct."
¶ 10 II. ANALYSIS
¶ 11 A. Withdrawal of Appellate Counsel
¶ 12 The same day defendant filed his notice of appeal, the trial court filed an order appointing the Office of the State Appellate Defender (OSAD) to represent him in this appeal. OSAD has now moved to withdraw, arguing that this appeal presents no issues of arguable merit.
¶ 13 In OSAD's motion, it notes that "[a] defendant who files a post-conviction petition has a statutory right to appeal under Illinois law and, if indigent, to the appointment of counsel on appeal." However, a motion to correct a sentencing error under Rule 472 is not a postconviction petition within the meaning of the Post-Conviction Hearing Act (725 ILCS 5/art. 122 (West 2022)), even though the motion necessarily comes after a conviction. Compare Ill. S.Ct. R. 472(a) (eff. May 17, 2019) (motion must assert one of four kinds of sentencing errors), with 725 ILCS 5/122-1(a)(1) (West 2022) (petition must assert a substantial denial of the defendant's constitutional rights).
¶ 14 Furthermore, an appeal under Rule 472 resembles a direct appeal in that it may be consolidated with a pending direct appeal and may be the defendant's first opportunity to obtain review of an aspect of a criminal sentence in this court. See Ill. S.Ct. R. 472(c)-(e) (eff. May 17, 2019). Therefore, while OSAD asserts that defendant is entitled only to the "reasonable level of assistance of counsel" guaranteed by Illinois law in collateral appeals (see People v. Johnson, 192 Ill.2d 202, 207 (2000)), this is arguably defendant's first appeal of right on this particular issue, so his right to counsel in this appeal may be of constitutional dimension. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further." (Emphasis added.)).
¶ 15 We flag this issue only to point out that we are not deciding the appropriate standard for evaluating the assistance of counsel in this appeal because OSAD's motion has satisfied even the constitutional standard for withdrawal set forth in Anders v. California, 386 U.S. 738, 744-45 (1967). See People v. Pinkonsly, 207 Ill.2d 555, 568 (2003) (declining to endorse a particular standard for evaluating the assistance of counsel when the issue was not essential to dispose of the appeal). As such, we will proceed to consider whether "any of the legal points [are] arguable on their merits (and therefore not frivolous)." Anders, 386 U.S. at 744.
¶ 16 B. Sheriff's Fee
¶ 17 Counsel first asserts that there is no nonfrivolous argument that the $25 sheriff's fee was unauthorized. We agree.
¶ 18 Section 4-5001 of the Counties Code (55 ILCS 5/4-5001 (West 2022)) provided that a county may enact an ordinance to impose a sheriff's fee for serving an arrest warrant and filing a return of service, as well as for the mileage of travel necessary to serve the warrant. The McClean County Fee Ordinance authorized a fee of "$15, $7 return, $0.50 per mile, round trip." McClean County Code § 205-17 (adopted Apr. 16, 2019), https://ecode360.com/13466674 (last visited Oct. 7, 2024). Here, the return of service indicates that the arresting officer traveled a round trip of six miles to serve the warrant, leading to a mileage fee of $3. The officer's return is prima facie evidence of matters within the officer's knowledge, such as the mileage traveled, and this evidence can only be set aside by clear and satisfactory evidence. Nibco, Inc. v. Johnson, 98 Ill.2d 166, 172 (1983). There is no clear and satisfactory evidence in this record suggesting that the return of service is inaccurate, so we conclude that the total $25 sheriff's fee was authorized.
¶ 19 C. Offset for Presentence Custody Credit
¶ 20 Illinois has long enabled defendants who are held in custody before sentencing to offset some of the financial costs of their sentences based on the amount of time they spent in custody before sentencing. Although presentence custody credit is quite literally valuable to defendants, it is also a matter of legislative grace. See People v. Hare, 119 Ill.2d 441, 447 (1988) ("The nature, character, and extent of criminal penalties are essentially legislative matters [citations], and therefore it is within the province of the legislature to determine the effect of pretrial custody on the sentences ultimately imposed upon a convicted defendant."). This means that the right to offset a fine or other cost with presentence custody credit is statutory rather than constitutional. People v. Guerrero, 311 Ill.App.3d 968, 970 (2000); see 725 ILCS 5/110-14(b) (West 2022) (denying presentence custody credit to defendants incarcerated for sexual assault); but see People v. Prince, 371 Ill.App.3d 878, 881 (2007) (finding that the sexual assault exception had an unconstitutional ex post facto effect as applied to a particular defendant when it prevented him from offsetting a fine with presentence custody credit he had already earned).
¶ 21 Here, there is no dispute that (1) defendant was entitled to $14,700 in presentence custody credit based on his 490 days in custody and (2) the trial court correctly offset defendant's $75 fine. However, counsel asserts that there is no nonfrivolous argument that the remaining $16,840 in assessed financial charges are subject to offset. Accordingly, we must interpret the relevant statutes to determine whether the legislature intended to allow a defendant to offset these particular financial charges. See People v. Jones, 223 Ill.2d 569, 580 (2006) ("The fundamental rule of statutory construction is to ascertain and give effect to the legislature's intent."). We review matters of statutory construction de novo. Id.
¶ 22 1. Offset Before July 1, 2019
¶ 23 Before July 1, 2019, presentence custody credit was governed only by section 110- 14(a) of the Code of Criminal Procedure of 1963 (Code), which provided:
"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of the offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. However, in no case shall the amount so allowed or credited exceed the amount of the fine." 725 ILCS 5/110-14(a) (West 2018).
To calculate offset, then, the trial court was required answer two questions: (1) how many days was the defendant incarcerated? and (2) what was the amount of the fine? But to answer the second question required consideration of a predicate question: what was the fine?
¶ 24 This question was difficult to answer at times because the legislature had created "a complex web of filing fees, fines, surcharges, and other costs levied against *** criminal defendants." Statutory Court Fee Task Force, Illinois Court Assessments 1 (June 1, 2016), https://www.illinoiscourts.gov/Resources/4b970035-98ba-4110-86fc- 60e02b6a126b/2016_Statutory_Court_Fee_Task_Force_Report.pdf. Historically, the question of whether a particular statute imposed a "fine" for purposes of section 110-14(a) was a matter of case-by-case judicial determination based on "the actual attributes of the charge at issue," rather than the label imposed by the legislature. Jones, 223 Ill.2d at 599; see People v. James, 133 Ill.App.3d 623, 625 (1985) ("Section 110-14 *** expressly applies to any person against whom a fine is levied and makes no attempt to differentiate among fines based upon statutory origin.").
¶ 25 Because "the credit for presentence incarceration c[ould] only reduce fines, not fees," the principal consideration under prior law was whether the charge was functionally a fine or a fee. Jones, 223 Ill.2d at 599. The supreme court explained:
"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." (Internal quotation marks omitted.) People v. Graves, 235 Ill.2d 244, 250 (2009).
We note that this definition of "fine" can apply in other contexts (see, e.g., Lintzeris v. City of Chicago, 2023 IL 127547, ¶ 34), but here we are concerned only with the statutory right to offset a fine with presentence custody credit.
¶ 26 Under the common-law approach, this court held that the sheriff's fee and crime laboratory fee were compensatory and not subject to offset. See People v. Tolliver, 363 Ill.App.3d 94, 97 (2006) (sheriff's fee); People v. White, 333 Ill.App.3d 777, 782 (2002) (laboratory fee). In contrast, section 5-9-1.1(a) of the Unified Code of Corrections provided that in cases involving possession of cannabis, "in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized." (Emphases added.) 730 ILCS 5/5-9-1.1(a) (West 2018) (repealed by Pub. Act 100-987, § 905-93 (eff. July 1, 2019)). The legislature's use of the terms "fine" and "penalty" was "strong evidence of the legislature's intent" for the street-value fine to be punitive (see Jones, 223 Ill.2d at 583), and the fact that the street-value fine was subject to offset under the common-law approach appears not to have been litigated, but simply taken as given (see People v. Garza, 2018 IL App (3d) 160684, ¶ 10; Guerrero, 311 Ill.App.3d at 971).
¶ 27 2. The Criminal and Traffic Assessment Act
¶ 28 Acting on the recommendations of the Statutory Court Fee Task Force's report, in 2018, the legislature overhauled the complex web of statutory costs by passing the Criminal and Traffic Assessment Act (Act) (Pub. Act 100-987 (eff. July 1, 2019), codified as amended at 705 ILCS 135/1-1 et seq. (West 2022)). The Act categorizes most preexisting statutory financial charges, as well as some new ones, using one of four labels: fine, scheduled assessment, conditional assessment, or service provider cost.
¶ 29 Similar to the common-law definition, the Act defines a "fine" as "a pecuniary punishment for a conviction or supervision disposition as ordered by a court of law." 705 ILCS 135/1-5 (West 2022). The minimum fine for any offense other than a minor traffic offense is $75. Id. § 5-5. A fine may be waived only "[i]f the court finds that the fine would impose an undue burden on the victim." Id.
¶ 30 Scheduled assessments are costs imposed pursuant to one of 13 schedules in the Act. Id. § 1-5. Each scheduled assessment specifies that a fixed amount of money will be collected from the defendant and deposited to a particular state or local fund. Id. §§ 15-5 to 15-65. The defendant must pay the scheduled assessments "applicable to the highest classified offense violation that is being sentenced." Id. § 5-10(a). Scheduled assessments may be reduced or waived if they "will cause an undue burden on any victim in a case." Id. § 5-10(b). They may also be waived for indigent defendants and partially waived for defendants with low incomes. 725 ILCS 5/124A-20 (West 2022). The trial court may convert scheduled assessments into a period of court-approved public or community service (705 ILCS 135/5-20(b) (West 2022)) and may reduce them "by any amount actually paid by the defendant for his or her participation in" "a substance abuse intervention or treatment program approved by the court" (id. § 5-10(c-5)). A defendant's failure to pay scheduled assessments may result in the extension of a period of probation, conditional discharge, or supervision. (Id. § 5-10(c-3)).
¶ 31" 'Service provider costs' means costs incurred as a result of services provided by an entity including, but not limited to, traffic safety programs, laboratories, ambulance companies, and fire departments. 'Service provider costs' includes conditional amounts under th[e] Act that are reimbursements for services provided." Id. § 1-5. "Unless otherwise provided in Article 15 of th[e] Act [(governing scheduled and conditional assessments)], the defendant shall pay service provider costs to the entity that provided the service. Service provider costs are not eligible for credit for time served, substitution of community service, or waiver." Id. § 5-15.
¶ 32 Conditional assessments are costs imposed pursuant to section 15-70 of the Act. They are deposited into various state and local funds and can be in fixed or variable amounts. Id. § 15-70. The defendant must pay "any conditional assessments *** applicable to any sentenced violation in the case." Id. § 5-10(a). Section 124A-20 of the Code provides that conditional assessments may be waived for indigent defendants and partially waived for defendants with low incomes. 725 ILCS 5/124A-20 (West 2022). It is unclear whether this waiver extends to "conditional amounts *** that are reimbursements for services provided," given that the Act defines these conditional assessments as service provider costs (705 ILCS 135/1-5 (West 2022)) and provides that service provider costs are not subject to waiver (id. § 5-15). Several provisions of the Act that apply to scheduled assessments do not extend to conditional assessments. For example, conditional assessments may not be converted to community service. See id. § 5-20(b); see also id. § 5-10(b), (c-3), (c-5).
¶ 33 Considering at this point only the labels the Act prescribes, defendant here was ordered to pay a fine of $75 (id. §§ 1-5, 5-5); scheduled assessments of $2215 (id. §§ 1-5, 15-15); a $25 sheriff's fee (see id. §§ 1-5, 5-15; Tolliver, 363 Ill.App.3d at 97); and two conditional assessments, $100 for the crime lab drug analysis assessment (705 ILCS 135/15-70(3) (West 2022)) and $14,500 for the street-value assessment (id. § 15-70(6)).
¶ 34 3. Offset Under the Act
¶ 35 Initially, the Act addressed offset as follows:
"Any credit for time served prior to sentencing that reduces the amount a defendant is required to pay shall be deducted first from the fine, if any, ordered by the court. Any remainder of the credit shall be equally divided between the assessments indicated in the ordered schedule and conditional assessments." (Emphases added.) Pub. Act. 100-987, § 5-20(a) (eff. July 1, 2019) (amended by Pub. Act 101-408, § 3 (eff. Jan. 1, 2020)).
For costs covered by the Act, then, the initial version of section 5-20(a) made labels definitive: fines were subject to offset first, followed by scheduled and conditional assessments, with service provider costs not subject to offset at all (see 705 ILCS 135/5-15 (West 2022)).
¶ 36 In 2019, the legislature amended both sections at issue by enacting Public Act 101 408 (eff. Jan. 1, 2020). These changes have been in effect since before defendant committed the offense in the present case. First, the legislature amended section 5-20(a) of the Act as follows:
"Any credit for time served prior to sentencing that reduces the amount a defendant is required to pay shall be deducted first from the fine, if any, ordered by the court. Any remainder of the credit shall be equally divided between the assessments indicated in the ordered schedule and conditional assessments." Id. § 3 (codified at 705 ILCS 135/5-20(a) (West 2022)).
Second, the legislature amended section 110-14(a) of the Code as follows:
"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of the offense shall be allowed a credit of $30 $5 for each day so incarcerated upon application of the defendant. However, in no case shall the amount so allowed or credited exceed the amount of the fine." Id. § 5 (codified as amended at 725 ILCS 5/110-14(a) (West 2022)).
¶ 37 When the legislature deletes language from the statute, it reflects an intention to change the law in that respect. Julie Q. v. Department of Children &Family Services, 2013 IL 113783, ¶ 30. The deletion of language allowing the presentence credit to offset assessments reflects the clear legislative intent that the credit not be applied to assessments. Furthermore, the limitation of the offset to an amount not to exceed fines tells us that it is to be applied only to fines.
¶ 38 Here, putting aside the $75 fine that has already been offset and the $25 sheriff's fee, the remaining $14,700 of financial charges levied against defendant are expressly labeled as either scheduled or conditional assessments, both in the trial court's order and in the corresponding provisions of the statute. The legislature has made it unmistakably clear that it does not intend for presentence custody credit to be used to offset assessments, so we agree with counsel that there is no potentially meritorious argument to the contrary.
¶ 39 As for the $25 sheriff's fee, it is not expressly labeled an assessment in the Act. Arguably, it could be construed as a service provider cost, making it ineligible for offset. See 705 ILCS 135/1-5, 5-15 (West 2022). What it cannot be construed as, however, is a fine. See id. § 15; Tolliver, 363 Ill.App.3d at 97. Because the presentence credit is limited to the amount of the fine-here, $75, an offset that has already been made-it cannot be applied to reduce the sheriff's $25 service fee.
¶ 40 We note that our analysis does not require us to examine the intrinsic nature of any of these charges, such as whether any of them are punitive versus compensatory. As noted above, it was the legislature's prerogative to allow presentence custody credit to offset fines, assessments, both, or neither. The question here is what the legislature decided with respect primarily to assessments, and the foregoing analysis shows that the legislature decided not to allow presentence custody credit to offset the charges it called "assessments."
¶ 41 Accordingly, we conclude that defendant's assessments and the sheriff's fee were not subject to offset.
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we grant OSAD's motion to withdraw and affirm the trial court's judgment.
¶ 44 Motion granted; judgment affirmed.