People v. Kendall

2015 IL App (2d) 130902-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH KENDALL, Defendant-Appellant.

No. 2-13-0902

APPELLATE COURT OF ILLINOIS SECOND DISTRICT

June 30, 2015

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 Lake County.

No. 12-CF-1962

Honorable Mark L. Levitt, Judge, Presiding.

JUSTICE HUTCHINSON delivered the judgment of the court.

Justices Burke and Spence concurred in the judgment.

ORDER

¶ 1 Held: (1) The trial court's revocation of defendant's probation was not an abuse of discretion, as defendant quickly and deliberately violated a provision that the court had specifically told him was crucial; (2) the trial court did not abuse its discretion in sentencing defendant to 55 months' imprisonment for theft: the sentence, which was in the lower half of the extended range, was justified by defendant's criminal history; (3) we lacked jurisdiction to consider the propriety of defendant's public defender reimbursement fee, as defendant timely appealed from the revocation of his probation, not from the probation order in which the fee was imposed, and the trial court's alleged failure to hold a proper hearing did not render the fee void and subject to correction at any time; (4) in light of the termination of defendant's supervision by the probation department, we remanded for a recalculation of defendant's probation-services and drug-and-alcohol testing fees, and, in light of those and other recalculations, we also remanded for a recalculation of defendant's delinquency fee; (5) defendant was entitled to fullcredit against his State Police Operations Assistance and State Police Services Fund fines, to reflect the 263 days he spent in presentencing custody, and we remanded for a recalculation of his Violent Crime Victims' Assistance Fund fine under the statute in effect at the time of his offense.

¶ 2 Defendant, Ralph Kendall, appeals after the revocation of his probation. He asserts that (1) the revocation was an abuse of discretion or the sentence imposed was too long, and (2) certain fines and fees were improperly imposed, improperly calculated, or did not properly offset. We hold that the court did not abuse its discretion in revoking his probation or in sentencing him to 55 months' imprisonment. We further hold that we lack jurisdiction to consider the propriety of the imposition of the public defender fee. However, we make multiple corrections to fines and fees, and we remand the matter for the court to determine the correct amounts of certain others.

¶ 3 I. BACKGROUND

¶ 4 A grand jury indicted defendant on one count of unlawful possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West 2012)), one count of criminal trespass to a residence (720 ILCS 5/19-4(a)(2) (West 2012)), one count of theft (720 ILCS 5/16-1(a)(1)(A) (West 2012)), one count of theft for which the State sought an enhancement based on defendant's prior conviction of retail theft, and one count of domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2012)).

¶ 5 On April 1, 2013, defendant entered a fully negotiated plea to the third count, theft, charged as a Class 3 felony. The parties agreed that he would receive 24 months' probation and pay $900 in restitution to the victim, Felicia Lewis, his ex-wife. The trial court told defendant that the "maximum sentence that could be imposed would be a term of two to five years in the Department of Corrections [(DOC)]," but noted that, because of defendant's prior conviction of at least one other Class 3 felony, he was "extend[a]ble and [was] facing a maximum of five to ten." A condition of defendant's probation was he not go to the address at which he committedthe offense or have any contact with Lewis. Defendant had a prior conviction of aggravated battery; Lewis was the victim. The State noted that it was "entering into this based on [its] risk at trial" and based on "guaranteed no contact."

¶ 6 The State gave the following factual basis for the agreement:

"If called to testify in this matter, Felicia Lewis would state that on or about July 6, 2012 in Lake County, Illinois, this defendant knowingly took unauthorized control over property of Felicia Lewis being approximately $900 in United States currency intending to permanently deprive Felicia Lewis *** of the benefit of that property.

This defendant had taken the money from her knowing that she had that certain amount in the home and left the area having taken that money without permission."

As the court went over the terms of probation, it emphasized that the no-contact provisions were extremely important:

"Do you understand with respect to all of these conditions, there's a lot people and places you can't have any contact with? *** So do you understand how important it is that you have absolutely no contact with anybody or even have anybody else contact any of these people?"

The court suggested to defendant that his safest choice would be to stay entirely out of Zion, Illinois. The court accepted the plea agreement.

¶ 7 The court told defendant that the total of the "court costs" that it would assess was $2,732 and that defendant could see the breakdown of those in an attachment to the sentencing order. That attachment reflected a public defender fee of $750. The court asked defendant if he expected to get employment and be able to "pay those amounts during the term of [his]probation." Defendant said that he could do so. The court found that defendant had an ability to pay.

¶ 8 A summary of the assessments, generated on December 10, 2014, showed a balance of $3,500.62. Assessments relevant to this appeal include:

Harris and Harris (per the parties, a late fee)

$808

Probation Services

$1,200

Public Defender

$750

State Police Operation

$12

State Police Service

$10

Urinalysis Testing (drug and alcohol testing)

$125

Crime Victims Assistance

$100

¶ 9 On June 3, 2013, the State filed a petition for revocation of probation. It alleged that, on April 5, 2013, defendant, in violation of the terms of his probation, made a telephone call to Lewis.

¶ 10 According to Lewis's testimony at the hearing on the petition to revoke, at approximately 4 p.m. on April 5, 2013, she received a call on her cell phone from a number that she did not recognize. She answered and recognized defendant's voice. He spoke to her for about five minutes, asking for her forgiveness. Defendant told her that he knew that he was not supposed to call her and so was taking a risk. He thanked her for not taking the charges to trial.

¶ 11 The State asked Lewis whether she recognized the name "Maureen Harper"; she said that she did not. The parties stipulated to the admission of records from U.S. Cellular for Lewis's cell phone and to the testimony of the police officer who took Lewis's report of defendant's call. The officer called the number from which Lewis said she had received defendant's call.

Someone who gave his name as "James" answered and said that he had been in possession of his phone all day, that he did not know defendant, and that he did not know Lewis. The records from U.S. Cellular showed that the number from which Lewis received the call was registered to Maureen Harper. Defendant testified. He denied having made the call and denied knowing "Maureen Harper" or "James." The court ruled that defendant had violated the terms of his probation by calling Lewis.

¶ 12 At the sentencing hearing, which took place on July 11, 2013, the State characterized defendant as a career criminal. It argued that, because of Lewis's disability, she was particularly vulnerable to defendant's appearing and making demands on her. It noted that the basic sentencing range was two to five years, but that the sentence was "extend[a]ble" beyond that range.

¶ 13 Defendant argued that, at the age of 53, he was tired and wanted to lead a more normal life. He asked that the court allow him to stay out of prison so that he could start to make things right with his son and grandchildren.

¶ 14 The presentencing report showed multiple convictions. Defendant was born in 1960 and had essentially no period as an adult in which he had avoided arrests. Defendant admitted to engaging in retail theft as a regular moneymaking activity. He claimed to the investigator that Lewis had been his regular get-away driver for these thefts. The report noted that Lewis had been injured in a vehicle accident and required a wheelchair for mobility. Defendant also told the investigator that he had been a high-ranking member of the Gangster Disciples, but had dissociated himself from the gang during the crack era. Defendant was on "parole" when he committed this offense.

¶ 15 The court stated that it deemed defendant to be eligible for extended-term sentencing, such that the maximum sentence would be 10 years' imprisonment, and that defendant "richly deserve[d]" an extended sentence. The court sentenced defendant to 55 months' imprisonment, but noted that, with the time-served credit, defendant would "not be spending a very long time in the Department of Corrections." (The DOC web site shows that it released defendant to mandatory supervised release (MSR) on November 6, 2014. http://www.idoc.state.il.us/subsections/search/ISdefault2.asp (visited May 28, 2015) (search "Kendall, Ralph").) Defendant timely moved for reconsideration, arguing that the court should have given more weight to mitigating factors. The court denied the motion, and defendant filed a timely notice of appeal.

¶ 16 II. ANALYSIS

¶ 17 On appeal, defendant challenges the length of his sentence and the amounts or impositions of certain fees and fines. He argues that the 55-month sentence was excessive and suggests that the trial court should have declined to revoke his probation. He challenges the imposition of a $750 public defender fee at the time of his guilty plea, arguing that the court failed to make an adequate...