Opinion
4-22-0320
05-11-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN LEE RUSSO, 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. 20CF814 Honorable J. Casey Costigan, Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Presiding Justice DeArmond and Justice Zenoff concurred in the judgment.
ORDER
KNECHT, JUSTICE
¶ 1 Held: The trial court did not abuse its discretion when ordering defendant to pay $15,952.60 in restitution. Defense counsel was not ineffective for failing to preserve the issue of defendant's ability to pay restitution. The appellate court remands for the trial court to establish the manner in which defendant must satisfy his restitution obligation.
¶ 2 Following an August 2021 jury trial, defendant, Nathan Lee Russo, was found guilty of aggravated battery causing great bodily harm (720 ILCS 5/12-3.05(a)(1) (West 2020)). Defendant was sentenced to 30 months of probation, 180 days in jail with work release (later modified to 180 days of home confinement), and ordered to pay restitution in the amount of $15,952.60. Defendant appeals, arguing (1) the trial court erred by failing to consider defendant's ability to pay when ordering restitution and (2) defendant's trial counsel was ineffective by failing to properly preserve, through a posttrial motion, the issue of defendant's ability to pay restitution. We affirm the trial court's judgment but remand for the limited purpose of holding a hearing to establish the manner in which defendant must satisfy his restitution obligation.
¶ 3 I. BACKGROUND
¶ 4 In August 2020, a grand jury charged defendant with aggravated battery for causing great bodily harm to Jonathan Livey when he struck Livey in the face. Id. Following an August 2021 jury trial, defendant was found guilty. The matter was set for a sentencing hearing in November 2021. No posttrial motions were filed within 30 days of the jury verdict. On November 5, 2021, defendant orally raised an issue with the trial court regarding a juror during the jury trial, so sentencing was continued until January 2022. On December 24, 2021, defendant filed a motion for judgment of acquittal notwithstanding the verdict and for a new trial.
¶ 5 Following a March 4, 2022, hearing, the trial court denied defendant's posttrial motions. Thereafter, the court held defendant's sentencing hearing. The presentence investigation report (PSI) was admitted without any amendments or objections by either party. The State presented a group exhibit of victim impact statements, and Livey gave an oral victim impact statement. Livey also testified regarding restitution. Livey testified to 80 hours of lost wages at a rate of $62.67 per hour. Livey testified to out-of-pocket medical expenses of $876.43 and $10,062.57. In mitigation, defendant offered 25 character letters written on his behalf.
¶ 6 The State presented arguments in aggravation emphasizing the seriousness of the injuries defendant caused to Livey, defendant's criminal history, and the need for deterrence. The State highlighted defendant's juvenile record, a previous unsuccessful discharge from probation on a misdemeanor case, and defendant's convictions for aggravated battery with a firearm and attempted murder in 1994, for which defendant was sentenced to 24 years (serving only 11 years incarcerated) in the Illinois Department of Corrections. The State requested five years in prison and restitution in the amount of $15,952.60.
¶ 7 Defendant sought to minimize his intent to cause injuries to Livey and focused on his reformation and lack of criminal history upon being released from prison. Defendant requested a term of probation. Defendant declined the opportunity to make a statement in allocution.
¶ 8 The trial court sentenced defendant to 30 months of probation, 180 days in the McLean County jail with work release, and restitution in the amount of $15,952.60. The State inquired as to the due date for the financial sentencing order, and the court directed the State to discuss that matter with defendant's attorney to arrive at an agreed due date for the fines, assessments, and restitution ordered. The report of proceedings does not clearly reflect any agreement between defendant's trial counsel and the State. However, the financial sentencing order dated on the date of the sentencing hearing, March 4, 2022, and signed by defendant, shows the restitution amount ordered as $15,952.60 with a due date of March 4, 2024.
¶ 9 Defendant filed a motion to reconsider his sentence and the denial of his motion for a new trial. In his motion, defendant alleged the trial court's 180 days of incarceration with work release was excessive and the court erred in denying his previous motion for a new trial. Following an April 13, 2022, hearing, the court denied defendant's motion. However, given issues related to COVID-19 and the inability of the McLean County jail to accommodate a work release order, the court modified defendant's sentence to home confinement without electronic monitoring and with work release.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 On appeal, defendant argues this court should vacate the trial court's restitution order and remand for a new restitution hearing because the court failed to consider his ability to pay restitution as required by the Unified Code of Corrections (730 ILCS 5/5-5-6(f) (West 2020)). The State disagrees, claiming defendant's arguments regarding restitution were forfeited and the trial court properly considered defendant's ability to pay restitution through the admission of the PSI. Defendant concedes his restitution issue was forfeited when trial counsel failed to raise it in a posttrial motion. However, defendant requests this court to review the restitution issue for plain error.
¶ 13 In order to preserve a purported error for consideration by a reviewing court, a defendant must object at trial or sentencing and raise the error in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48. "Failure to do either results in forfeiture." Id. The plain error doctrine permits a reviewing court to exercise discretion and excuse a procedural default by a defendant where either (1) there was a clear or obvious error at trial or (2) a defendant has shown there to be an error so serious that it affected the fairness of the trial and challenged the integrity of the judicial process. Id. ¶¶ 49-50. The first step under either prong of the plain error doctrine is to determine whether there was an error at all. People v. Matthews, 2017 IL App (4th) 150911, ¶ 17.
¶ 14 Defendant seeks this court's review under the second prong of the plain error analysis and requests a new restitution hearing, arguing (1) the trial court failed to inquire into defendant's ability to pay when determining restitution or, alternatively (2) defendant's trial counsel was ineffective for failing to raise the issue of restitution in defendant's posttrial motion to reconsider his sentence.
¶ 15 "[T]he trial court is not required to consider a defendant's financial circumstances when setting the amount of restitution; the trial court is required to consider the ability to pay only when determining the time and manner of payment ***." (Emphasis in original.) People v. Day, 2011 IL App (2d) 091358, ¶ 56. A trial court's order of restitution will only be overturned for an abuse of discretion. People v. Adame, 2018 IL App (2d) 150769, ¶ 13. To the extent defendant now objects to the amount of restitution ordered, the "trial court is entitled to rely on the amount [of restitution as] stated in the PSI in the absence of an objection to its accuracy." People v. Hibbler, 2019 IL App (4th) 160897, ¶ 90.
¶ 16 In this case, the trial court considered defendant's PSI, Livey's testimony regarding his damages, and accompanying exhibits. Defendant did not object. The State discovered an inaccuracy on the PSI related to Livey's lost wages during Livey's testimony at the sentencing hearing and offered a downward correction of the restitution amount owed by defendant as a result. Given the court was not required to determine defendant's ability to pay when setting the amount of restitution, there was no error when the court failed to inquire into defendant's ability to pay restitution.
¶ 17 Defendant also contends his trial counsel was ineffective for failing to preserve the issue of his ability to pay the amount of restitution ordered. This issue was also not raised in the trial court and is reviewed de novo. People v. Bates, 2018 IL App (4th) 160255, ¶ 46. "Effective assistance of counsel refers to competent, not perfect representation." (Internal quotation marks omitted.) People v. Thomas, 2017 IL App (4th) 150815, ¶ 10. "To succeed on a claim of ineffective assistance of counsel during sentencing, a defendant must show that [(1)] counsel's performance fell below minimal professional standards and that [(2)] a reasonable probability exists that the defendant's sentence was affected." (Internal quotation marks omitted.) Hibbler, 2019 IL App (4th) 160897, ¶ 88. "Failure to satisfy either prong negates a claim of ineffective assistance of counsel." Id. Where there is no prejudice, the court does not need to decide whether counsel's performance was deficient. People v. Evans, 186 Ill.2d 83, 94 (1999).
¶ 18 The trial court was not required to consider defendant's ability to pay when setting the amount of restitution. Thus, there can be no reasonable probability defendant's restitution order would have been affected. Because defendant cannot show prejudice, his ineffective assistance claim fails.
¶ 19 However, there remains an important distinction to be made between a trial court's order regarding the amount of restitution and its order regarding the time and manner of payment of restitution. "A trial court's order concerning the time and manner of payment of restitution is reviewed for an abuse of discretion." Day, 2011 IL App (2d) 091358, ¶ 56. We review de novo the trial court's compliance with the statutory procedure under section 5-5-6(f). People v. Munz, 2021 IL App (2d) 180873, ¶ 14.
¶ 20 Section 5-5-6(f) of the Unified Code of Corrections provides the trial court "shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years, *** within which payment of restitution is to be paid in full." 730 ILCS 5/5-5-6(f) (West 2020). Where a defendant is ordered to pay restitution "over a period greater than 6 months, the court shall order that the defendant make monthly payments; the court may waive this requirement of monthly payments only if there is a specific finding of good cause for waiver." Id. Compliance with section 5-5-6(f) is" 'mandatory' ." Hibbler, 2019 IL App (4th) 160897, ¶ 82. In Hibbler, this court noted "[c]ourts have also remanded cases when a trial court includes a time to pay but not the manner of payment-that is, by installments or lump sum." Id. (citing People v. Fontana, 251 Ill.App.3d 694, 709 (1993) (remanding the case to the trial court solely for the purpose of determining the method and manner of restitution payment)); see also People v. Green, 2021 IL App (4th) 200063-U, ¶ 33.
¶ 21 Here, the trial court, apparently by agreement of the parties, ordered defendant to pay the restitution by March 4, 2024-a period greater than six months. However, the court's order is silent, as is the record, on whether defendant is to pay the restitution in installments or by lump sum. Therefore, we remand the case to the trial court for the limited purpose of determining whether defendant is to pay the restitution in installments or by lump sum, taking into account defendant's financial circumstances. See 730 ILCS 5/5-5-6(f) (West 2020).
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we remand the case to the trial court for the limited purpose of conducting a hearing to determine the manner in which restitution is to be paid. We affirm the trial court's judgment in all other respects.
¶ 24 Affirmed and remanded with directions.