People of The State of Ill. v. SCHNEIDER

403 Ill.App.3d 301

933 N.E.2d 384

342 Ill.Dec. 798

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Christopher S. SCHNEIDER, Defendant-Appellant.

No. 2-08-0858.

Appellate Court of Illinois,Second District.

July 16, 2010.

COPYRIGHT MATERIAL OMITTED.

Thomas A. Lilien, Deputy Defender, Patrick M. Carmody (Court Appointed), Office of the State Appellate Defender, Elgin, for Appellant.

Michael J. Waller, Lake County State's Attorney, Waukegan, Lawrence M. Bauer, Deputy Director, Mary Beth Burns, State's Attorneys Appellate Prosecutor, Elgin, for Appellee.

Justice O'MALLEY delivered the opinion of the court:

Christopher S. Schneider appeals from his convictions of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2006)) and aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2006)) based on acts that occurred in July 2007. He contends that (1) it was plain error for the circuit court clerk to order him to pay a $250 public defender reimbursement fee without the trial court's consideration of his ability to pay under section 113-3.1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/113-3.1(a) (West 2006)), and the fee must be vacated without a remand for a hearing; (2) he is entitled to full monetary credit against a $10 mental health court assessment (55 ILCS 5/5-1101(d-5) (West 2006)) for time that he spent in custody; (3) under section 10(b) of the Violent Crime Victims Assistance Act (725 ILCS 240/10(b) (West 2006)), a victim's assistance fine of $25 must be reduced to $4; and (4) the court erred by entering a term of mandatory supervised release (MSR) of three years to life instead of a fixed term. We vacate the public defender fee and remand for a hearing, reimpose the mental health court assessment without awarding credit, reimpose the victim's assistance fine in the amount of $4, and affirm the MSR term.

I. BACKGROUND

After his convictions, Schneider was sentenced to consecutive seven-year terms of incarceration with an MSR term of three years to life. Schneider was also ordered to pay a $250 public defender reimbursement fee, a $25 victim's assistance fine, and a $10 mental health court assessment. Those items were not discussed at sentencing and appear to have been entered by the clerk of the circuit court. After sentencing, the Department of Corrections listed Schneider's MSR term as life. Schneider appeals, seeking elimination or reduction of the fee and fines and seeking a remand for the court to specifically define his MSR term.

II. ANALYSIS

A. The Public Defender Fee

Schneider contends that the imposition of the public defender fee without consideration by the trial court of his ability to pay was plain error. He further contends that the matter cannot be remanded for a hearing. The State agrees that the fee was wrongly imposed without a hearing, but asks that this court remand the matter.

Section 113-3.1(a) provides:

“Whenever under either Section 113-3 of this Code or Rule 607 of the Illinois Supreme Court the court appoints counsel to represent a defendant, the court may order the defendant to pay to the Clerk of the Circuit Court a reasonable sum to reimburse either the county or the State for such representation. In a hearing to determine the amount of the payment, the court shall consider the affidavit prepared by the defendant under Section 113-3 of this Code and any other information pertaining to the defendant's financial circumstances which may be submitted by the parties. Such hearing shall be conducted on the court's own motion or on motion of the State's Attorney at any time after the appointment of counsel but no later than 90 days after the entry of a final order disposing of the case at the trial level.” 725 ILCS 5/113-3.1(a) (West 2006).

Section 113-3.1 requires the trial court to conduct a hearing into a defendant's financial circumstances and find an ability to pay before it may order the defendant to pay reimbursement for appointed counsel. People v. Love, 177 Ill.2d 550, 563, 227 Ill.Dec. 109, 687 N.E.2d 32 (1997). The hearing is required even where a cash bail bond has been posted, because the existence of a bond is not conclusive evidence of an ability to pay. Love, 177 Ill.2d at 560-63, 227 Ill.Dec. 109, 687 N.E.2d 32. “The hearing must focus on the foreseeable ability of the defendant to pay reimbursement as well as the costs of the representation provided.” Love, 177 Ill.2d at 563, 227 Ill.Dec. 109, 687 N.E.2d 32.

“The hearing must, at a minimum, provide defendant with notice that the trial court is considering imposing a payment order and give defendant an opportunity to present evidence of his ability to pay and other relevant circumstances.” People v. Spotts, 305 Ill.App.3d 702, 703-04, 239 Ill.Dec. 341, 713 N.E.2d 1191 (1999). “Notice” includes informing the defendant of the court's intention to hold such a hearing, the action the court may take as a result of the hearing, and the opportunity the defendant will have to present evidence and be heard. Spotts, 305 Ill.App.3d at 704, 239 Ill.Dec. 341, 713 N.E.2d 1191. “Such a hearing is necessary to assure that an order entered under section 113-3.1 complies with due process.” Spotts, 305 Ill.App.3d at 704, 239 Ill.Dec. 341, 713 N.E.2d 1191. Rules of forfeiture do not apply. Love, 177 Ill.2d at 564, 227 Ill.Dec. 109, 687 N.E.2d 32.

Here, the clerk of the court could not impose the fee without notice and a hearing before the trial court. Schneider argues that the remedy is to vacate the fee without a remand, while the State suggests that the cause should be remanded for a hearing.

Schneider's argument is based on the language in section 113-3.1(a) that the hearing must be held within 90 days after the entry of a final order disposing of the case at the trial level. 725 ILCS 5/113-3.1(a) (West 2006). Whether a court on remand may conduct a hearing and still impose the fee when more than 90 days has passed has not directly been addressed in Illinois. However, in Love, despite the passage of 90 days, our supreme court remanded the matter for a hearing. Love, 177 Ill.2d at 565, 227 Ill.Dec. 109, 687 N.E.2d 32. We have followed suit. See, e.g., Spotts, 305 Ill.App.3d at 705, 239 Ill.Dec. 341, 713 N.E.2d 1191. We view the supreme court's practice to remand such cases as binding. Thus, under Love, we vacate the public defender fee and remand for notice and a hearing on the matter.

B. Credit for the Mental Health Court Assessment

Schneider argues that he is entitled to credit against the $10 mental health court assessment for the time that he spent in custody. The State contends that he is not entitled to credit against the fine because he was incarcerated for sexual assault.

Although labeled as a fee under section 5-1101(d-5) of the Counties Code (55 ILCS 5/5-1101(d-5) (West 2006)), the mental health court assessment is a mandatory fine. See People v. Graves, 235 Ill.2d 244, 255, 335 Ill.Dec. 881, 919 N.E.2d 906 (2009). Section 110-14(a) of the Code of Criminal Procedure of 1963 provides: “Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant.” 725 ILCS 5/110-14(a) (West 2006). The defendant is entitled to the credit for each day or part of a day spent in jail prior to the imposition of the sentence. People v. McCreary, 393 Ill.App.3d 402, 408, 333 Ill.Dec. 674, 915 N.E.2d 745 (2009). The credit is not limited to people who apply for it at the trial level. People v. Woodard, 175 Ill.2d 435, 447-48, 222 Ill.Dec. 401, 677 N.E.2d 935 (1997). Therefore, the normal rules of forfeiture do not apply, and the right is cognizable on appeal as a matter of course, subject to the defendant's application. Woodard, 175 Ill.2d at 457, 222 Ill.Dec. 401, 677 N.E.2d 935. However, section 110-14(b) provides that subsection (a) does not apply to a person incarcerated for sexual assault as defined in section 5-9-1.7(a)(1) of the Unified Code of Corrections (730 ILCS 5/5-9-1.7(a)(1) (West 2006)). 725 ILCS 5/110-14(b) (West 2006).

Here, Schneider was convicted of criminal sexual assault, which falls under the definition of “sexual assault” in section 5-9-1.7(a)(1). 730 ILCS 5/5-9-1.7(a)(1) (West 2006). Accordingly, he is not entitled to credit against his mental health court assessment.

We observe that the clerk of the court appears to have imposed the fine. The imposition of any fine is a judicial act, and the clerk has no power to levy even mandatory fines that are not authorized by the court. People v. Evangelista, 393 Ill.App.3d 395, 401, 332 Ill.Dec. 356, 912 N.E.2d 1242 (2009). Thus, the clerk could not impose the fine. However, when presented with mandatory fines assessed by the clerk, we may vacate the fines and reimpose them ourselves. See Evangelista, 393 Ill.App.3d at 401, 332 Ill.Dec. 356, 912 N.E.2d 1242; see also 155 Ill.2d R. 366(a)(5). Here, we vacate the fine and reimpose it in the amount of $10.

C. The Victim's Assistance Fine

Schneider next seeks a reduction of the victim's assistance fine from $25 to $4. The State agrees.

Generally, sentencing claims not raised in a postsentencing motion are forfeited. See People v. Reed, 177 Ill.2d 389, 393-94, 226 Ill.Dec. 801, 686 N.E.2d 584 (1997). However, a sentencing provision that lacks proper authority may be challenged at any time. People v. Chaney, 379 Ill.App.3d 524, 528, 318 Ill.Dec. 815, 884 N.E.2d 783 (2008). But see People v. Sharifpour, 402 Ill.App.3d 100, 125-26, 341 Ill.Dec. 319, 930 N.E.2d 529 (2010) (O'Malley, J., specially concurring) (questioning the rule).

The victim's assistance fine is mandatory. Evangelista, 393 Ill.App.3d at 401, 332 Ill.Dec. 356, 912 N.E.2d 1242; People v. Scott, 152 Ill.App.3d 868, 873, 105 Ill.Dec. 916, 505 N.E.2d 42 (1987). However, the amount that the clerk of the court imposed is to be imposed only when “no other fine is imposed.”...