People v. Mitchell

916 N.E.2d 624

334 Ill.Dec. 209

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles K. MITCHELL, Defendant-Appellant.

No. 4-08-0401.

Appellate Court of Illinois, Fourth District.

October 15, 2009.

Justice MYERSCOUGH delivered the opinion of the court:

In December 2007, defendant, Charles K. Mitchell, pleaded guilty to burglary. In January 2008, the trial court sentenced defendant to a 13-year prison term. Defendant appeals, arguing (1) the court erred when it imposed (a) a $4 traffic and criminal conviction surcharge, (b) a $10 anticrime fee, and (c) a $25 Violent Crime Victims Assistance Fund penalty, and (2) the court abused its discretion in sentencing. We affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

In February 2007, the State charged defendant with one count of burglary, a Class 2 felony (720 ILCS 5/19-1(a), (b) (West 2006)), alleging he entered a vacant home with the intent to commit a theft therein. Because defendant had two prior Class 2 felony convictions, the trial court sentenced him as a Class X offender with a sentencing range of 6 to 30 years' imprisonment. 730 ILCS 5/5-5-3 (c)(8), 5-8-1(a)(3) (West 2006).

In December 2007, defendant entered an open, nonnegotiated guilty plea. The State's factual basis for the plea disclosed that in October 2006, someone broke into a vacant home owned by Timothy Davis and stole a circular saw, a jigsaw, and a Sawzall. Blood was found in the home, which police believed came from the intruder. Police sent a blood sample to the Illinois State Police crime laboratory for processing. The Illinois Combined DNA Index System (CODIS) matched the sample taken from the home to a sample previously taken from defendant. A confirmatory sample taken directly from defendant also matched the blood found in the home.

In January 2008, the trial court held defendant's sentencing hearing. The State called Decatur police officer Joshua Sheets, who testified in September 2005 he found cannabis and crack cocaine in defendant's vehicle during a traffic stop. The State later charged defendant with possession of a controlled substance in Macon County case No. 2005-CF-1389, which was still pending at the time of the sentencing hearing.

The State also called Decatur police officer Troy Phares, who testified regarding another pending felony charge against defendant for resisting arrest, Macon County case No. 2007-CF-1321. Officer Phares testified that while on patrol in August 2007, he saw defendant walking down the street. Officer Phares knew defendant on sight due to prior interactions and also knew defendant had an outstanding felony warrant for burglary. As Officer Phares approached defendant to arrest him, defendant saw Officer Phares and ran away. During the ensuing foot chase, Officer Phares sustained a sprained knee and sprained forearm after running into a barbed-wire fence. Defendant was able to escape after Officer Phares's injury.

Defendant testified he was a drug addict and had been since the age of 20. (Defendant was 44 years old at the time of sentencing.) Defendant further testified he only committed crimes to support his drug habit. Defendant sought treatment as part of court-ordered probation in the 1990s and stayed drug free for six years afterward. However, defendant relapsed around 2004. Defendant indicated his desire to get drug treatment in prison and regain sobriety.

During defendant's allocution, he denied Officer Sheets's testimony that marijuana and crack cocaine were found during the traffic stop resulting in case No. 2005-CF-1389.

The trial court also examined defendant's presentence investigation report (PSI), which indicates defendant was diagnosed as schizophrenic around 20 years ago. Defendant denied taking medication or receiving treatment at the time of his arrest. The PSI shows defendant has seven children, who, at the time of sentencing, ranged in age from 24 years old to 1 month old. With respect to defendant's drug use, the PSI indicates he began using marijuana and crack cocaine at 17.

The PSI shows defendant has the following felony convictions: (1) retail theft from September 1987, (2) violation of bail bond from October 1988, (3) robbery from April 1990, (4) forgery from March 1992, (5) retail theft from March 1992, (6) residential burglary from March 1992, (7) bringing contraband into a penal institution from May 1993, (8) obstruction of justice from March 1999, (9) two convictions for possession of a controlled substance from May 1999, and (10) burglary from October 2001. Defendant was sentenced to 10 separate prison terms for those convictions.

The PSI concludes that defendant "scored in the maximum range of risk and needs. [Defendant] received his score as a result of his criminal history, unemployment status, having pro-criminal associations, self-reported substance abuse, and self-reported mental[-]health problem."

The State argued for a sentence of 17 years based upon the aggravation evidence produced at sentencing, as well as defendant's criminal history. Defense counsel recommended a minimum sentence of six years due to defendant's drug problem and his willingness to seek treatment for that problem.

As stated, the trial court sentenced defendant to a 13-year prison term and imposed court costs, fines, and fees. In its oral pronouncement, the court stated its sentence was based upon the need to protect the public. In aggravation, the court noted defendant's long-standing drug addiction, failure to seek treatment for schizophrenia, and significant criminal history. The court also stated that it had considered defendant's score in the "`maximum range of risks and needs'" contained in the PSI. In mitigation, the court noted defendant's recent criminal history was sparse and he had admitted guilt.

The trial court made three separate rulings regarding the imposition of fees, costs, and fines. In its oral pronouncement, the trial court imposed "court costs." In its written sentencing judgment, the trial court imposed both fees and costs. The docket entry entered on the date of defendant's sentencing states defendant was ordered to pay "court costs" but also ordered that his bond satisfy "fines, court costs, restitution, and [attorney] fees."

In May 2008, defendant filed a motion to reconsider sentence, which the trial court denied.

This appeal followed.

II. ANALYSIS

Defendant argues that the trial court erred when it imposed (1) fees not permitted by statute and (2) a 13-year prison sentence.

A. Defendant's Fees and Fines

Defendant argues the trial court erred when it imposed (1) a $4 traffic and criminal conviction surcharge, (2) a $10 anticrime fee, and (3) a $25 violent crime fee.

1. Traffic and Criminal Conviction Surcharge

Defendant argues the $4 penalty is a fine and was improper because it was imposed pursuant to subsection 5-9-1(c-9) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-9-1(c-9) (West 2004)), which the legislature repealed prior to both commission of the offense and sentencing. The State concedes the court had no authority to impose the traffic and criminal conviction surcharge because the legislature repealed the fee in 2005. See 730 ILCS 5/5-9-1(c-9) (West 2006) (leaving subsection (c-9) blank). We agree that the $4 penalty must be vacated, although not for the reason defendant proposes and the State accepts.

We first note that if the $4 penalty was imposed pursuant to subsection 5-9-1(c-9), its imposition was improper and requires vacatur. However, the clerk imposed the $4 traffic and criminal conviction surcharge in this case pursuant to subsection 5-9-1(c) of the Unified Code (730 ILCS 5/5-9-1(c) (West 2006)), a permissible basis for the penalty at the time of defendant's commission of the offense and sentencing. A brief description of the various amendments of section 5-9-1 of the Unified Code (730 ILCS 5/5-9-1 (West 2006)) is necessary to explain our holding.

Public Act 93-32 created subsection 5-9-1(c-9) (730 ILCS 5/5-9-1(c-9) (West 2004)), which went into effect in June 2003. Pub. Act 93-32, § 50-75, eff. June 20, 2003 (2003 Ill. Legis Serv. 400, 429 (West)). Subsection 5-9-1(c-9) required the trial court to impose a $5 (formerly $4) penalty on the defendant whenever it imposed sentence for a criminal or traffic offense, except sentences related to parking and registration offenses. 730 ILCS 5/5-9-1(c-9) (West 2004). In December 2003, for reasons not relevant to the resolution of this case, the Supreme Court Rules Committee determined the penalty imposed under subsection 5-9-1(c-9) could not be collected without violating Supreme Court Rule 529. 210 Ill.2d R. 529, Committee Comments at ccxxxvii. In response, the legislature enacted Public Act 94-652, which repealed subsection 5-9-1(c-9) (730 ILCS 5/5-9-1(c-9) (West 2004)) and increased the penalty imposed in subsection 5-9-1(c) (730 ILCS 5/5-9-1(c) (West Supp.2005)) from the then $5 for each $40, or portion thereof, of penalties imposed to $9 for each $40, or portion thereof, of penalties imposed. Pub. Act 94-652, § 5, eff. August 22, 2005 (2005 Ill. Legis. Serv. 3345, 3346-47 (West)). During the debate in the House of Representatives on Public Act 94-652, Representative Lyons, the legislation's sponsor, stated the following:

"[Public Act 94-652] amends the Unified Code * * * pertaining to the collection and distribution of money[ ] into the [t]raffic and [c]riminal [c]onviction [s]urcharge [f]und. The [t]raffic and [c]riminal [c]onviction [s]urcharge [f]und is used to pay for the training of the [State's 40,000] law enforcement and correctional officers. [Public Act 94-652] remedies language which was originally added [two] years ago in the Budget Implementation Act to collect an additional $4 assessment on all traffic and criminal convictions in which a fine is imposed. The [s]upreme [c]ourt subsequently ruled that the language of the provision * * * was contradictory to Supreme ...