Opinion
No. 1-16-0063
07-13-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT TURNER, 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 MC 191103 Honorable Daniel J. Gallagher, Judge, presiding. JUSTICE HALL delivered the judgment of the court.
Presiding Justice Reyes and Justice Rochford concurred in the judgment.
ORDER
¶ 1 Held: We dismiss defendant's appeal seeking the reduction of court-ordered probation fees from $480 to $300 where the trial court did not enter an order imposing $480 in probation fees. ¶ 2 Pursuant to a plea agreement, defendant Robert Turner pleaded guilty to one count of battery (720 ILCS 5/12-3(a)(2) (West 2014)) in exchange for a sentence of 60 days in the Cook County Department of Corrections (CCDOC) followed by 2 years' probation. He was subsequently found guilty of violation of probation and sentenced to 300 days in the CCDOC. 2 On appeal, defendant challenges his probation fees. We dismiss. ¶ 3 On or about June 2, 2014, defendant twice grabbed P.S.'s vagina through her clothing. On June 13, 2014, pursuant to a plea agreement, defendant pleaded guilty to one count of battery in exchange for a sentence of 60 days in the CCDOC with credit for 11 days served, followed by 2 years' probation, which would expire on June 10, 2016. As conditions of probation, the trial court inter alia assessed a $20 per month probation fee and ordered that defendant was not to violate the criminal statute of any jurisdiction and had to submit to a "sex evaluation." ¶ 4 On November 10, 2015, the State filed a petition for a violation of probation, asserting that (1) defendant committed and was convicted of another battery while still on probation, (2) he failed to complete a sex offender evaluation, (3) he failed to report to his probation officer in August and September 2015, and (4) the entire amount of $480 in court-ordered probation fees remained due. ¶ 5 At the November 13, 2015, hearing on the petition, the State informed the court it would proceed on only the first ground: that defendant had pled guilty to a new battery while still on probation. It did not argue the other three grounds. ¶ 6 The evidence showed that defendant's term of probation was to run until June 10, 2016, and, on September 18, 2015, he pleaded guilty to and was sentenced on an unrelated battery. The trial court found defendant violated a term of his probation, revoked his probation, and sentenced him to 300 days in the CCDOC. ¶ 7 Defendant now appeals his probation fees, based the court's revocation of his probation. He contends he should not have been assessed $480 in probation fees because he was actively 3 supervised by probation services for only 15 months, and thus should have been assessed only $300 in probation fees. He asks that we direct the trial court to reduce the amount of the probation fees from $480 to $300. The State agrees. ¶ 8 As an initial matter, defendant acknowledges he did not raise this fee challenge to the trial court, but requests that we review his forfeited claim under the plain error doctrine. See People v. Hillier, 237 Ill. 2d 539, 544-45 (2010) (claims not raised in both a contemporaneous objection in the trial court and a written postsentencing motion are forfeited on appeal, but may be reviewed if the defendant establishes plain error). The State agrees defendant's claim is reviewable. Therefore, as the State does not argue forfeiture, we will address the merits of defendant's claim. See People v. Williams, 193 Ill. 2d 306, 347-48 (2000) (the rules of waiver and forfeiture apply to the State). We review the propriety of court-ordered fines and fees de novo. People v. Bowen, 2015 IL App (1st) 132046, ¶ 60. ¶ 9 Under section 5-6-3(i) of the Unified Code of Corrections (730 ILCS 5/5-6-3(i) (West 2014)), a court may impose a monthly fee of up to $50 against a probationer for the cost of supervising him during the period of probation. "The fee shall be imposed only upon an offender who is actively supervised by the probation and court services department." 730 ILCS 5/5-6-3(i) (West 2014). Here, in the trial court's June 13, 2014, order, it imposed a $20 per month fee for probation services in connection with defendant's two-year probation sentence. Thus, if defendant was actively supervised by the probation department for all 24 months of his court-ordered probation, he would owe $480 in probation fees. ¶ 10 However, as the parties point out and the record reflects, the court revoked defendant's probation and sentenced him to prison in November 2015, which was approximately 15 months 4 after his probation period began in August 2014. If, as the parties claim, defendant was actively supervised by the probation department for only 15 months (August 2014 to November 2015), then he would owe $300 in probation fees (15 months x $20), not $480 (24 months x $20). See People v. Wynn, 2013 IL App (2d) 120575, ¶ 33 (remanding for "appropriate reduction in probation fees" where the trial court sentenced the defendant to 18 months' probation and imposed $900 in probation fees but, due to the court's subsequent revocation of probation, the defendant was not actively supervised by the probation department during the entire 18 months). The parties therefore agree that we should direct the trial court to reduce the amount of the probation fees from $480 to $300. ¶ 11 But the trial court did not enter an order imposing $480 in probation fees. Its original sentencing order imposed $20 per month in probation fees, not a flat $480 in probation fees. However, defendant's probation was later revoked. There is, therefore, no enforceable order requiring defendant to pay $480 in probation fees, and we cannot accord him the relief he requests. ¶ 12 From defendant's brief, it appears he derives the challenged $480 assessment for probation fees from a ledger entry by the adult probation department of the circuit court of Cook County. The record contains an October 26, 2015, letter from the adult probation department requiring defendant to appear before the court on November 10, 2015, in connection with the instant case. It informs him that, if he was ordered to pay probation fees as a condition of his probation, he could pay the fees in court that day. The letter attaches a computer-printed page 5 titled "financial ledger" showing defendant owes $480 to the office of the controller. This is the $480 in probation fees defendant challenges here. ¶ 13 Actions of the adult probation department are not orders of the circuit court. See People v. Vara, 2018 IL 121823, ¶¶ 17-19 (noting, in the context of actions taken by the clerk of the circuit court of Stephenson County, that it is for the circuit court to render a judgment and for the clerk to perform the ministerial task of entering the judgment; "[a]ny action taken by a circuit clerk that purports to alter the judgment of the court is invalid"]). There is a "fundamental difference" between a court order and the ministerial action of a circuit clerk (Id. ¶ 25) or, as relevant here, the court's adult probation department. Where, as here, there is no existing circuit court order requiring a fee, we cannot remand on an order that does not exist. See Id. (citing People v. Hardman, 2017 IL 121453, ¶ 55, in which the supreme court specifically recognized that, where the circuit clerk assessed a fee that could only be imposed by the circuit court after a hearing, "there was no circuit court order" requiring the fee and "the appellate court could not remand for a hearing on an order that did not exist"). ¶ 14 As there is no order in the record on which we can grant defendant his requested relief to remand for reduction of the probation fees, we dismiss his appeal. See Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 522-23 (2001) (an appeal is moot when it involves no actual controversy or we cannot grant the appellant effectual relief); Commonwealth Edison Co. v. Illinois Commerce Comm'n, 2016 IL 118129, ¶¶ 10, 21. ¶ 15 For the foregoing reasons, we dismiss the appeal. ¶ 16 Dismissed.