People v. Barbosa

Opinion

NO. 4-04-1071 Filed: 5/22/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of Ford v. ) County LUIS BARBOSA, ) No. 04CF56 Defendant-Appellant. ) ) Honorable ) Stephen R. Pacey, ) Judge Presiding. _________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In November 2004, a jury convicted defendant, Luis

Barbosa, of domestic battery (720 ILCS 5/12-3.2(a)(1) (West

2004)). The trial court later sentenced him to 18 months in

prison and ordered him to pay fees and costs, including $750 in

public-defender fees.

Defendant appeals, arguing only that the trial court

erred by ordering him to pay the $750 public-defender fee without

considering his ability to pay. Because we agree, we vacate that

part of the trial court's sentencing order and remand for a

hearing on defendant's ability to pay for such services, pursuant

to section 113-3.1 of the Code of Criminal Procedure of 1963

(Code) (725 ILCS 5/113-3.1 (West 2004)).

I. BACKGROUND

In November 2004, a jury convicted defendant of domes-

tic battery, and the trial court later sentenced him as stated.

At the conclusion of a December 2004 hearing on defendant's

motion to reconsider his sentence, the trial court denied his motion and the following colloquy occurred:

"THE COURT: *** [Defense counsel], the

only thing that remains is the amount of time

you have in this case. So, I can make an

assertion of the amount of reimbursement of

the [p]ublic[-][d]efender fees.

[DEFENSE COUNSEL]: I mean, the trial

and--

THE COURT: I am aware of that. You have an estimate of the amount of time that

you have invested in this case?

[DEFENSE COUNSEL]: Oh, I would say it

would be[,] given the trial[,] in excess of

15 hours.

THE COURT: Okay. [Defendant], any

reason why the amount of $750 for reimburse- ment of Ford County [p]ublic[-][d]efender

fees is not an appropriate amount?

[DEFENDANT]: Excuse me?

THE COURT: Any reason why the figure of

$750 for reimbursement to the Ford County

[p]ublic[-][d]efender fees is not an appro-

priate amount?

[DEFENDANT]: Sure. It is not an appro-

priate amount.

THE COURT: I think you are not happy

- 2 - with the result but the time involved more

than just--

[DEFENDANT]: There was no time

involved[,] just the little bit that he

claimed here for trial. That was it.

THE COURT: Okay.

Well,

you

ackno wledg

e

that

we

had

the

bette r

part

of a

day

in

trial

.

All

right

- 3 - [DEFENDANT]: The better part of a day?

THE COURT: Pardon.

[DEFENDANT]: Is that what you said, a

better part of a day in trial?

THE COURT: Do you think you can hire an

attorney for preparation for trial and a

day's worth of time or a half day's worth of

trial for $750, sir?

[DEFENDANT]: You been doing everything you guys want to. Certainly, [y]our [h]onor,

you go ahead. I am at the mercy of this

[c]ourt. So you go ahead.

THE COURT: [Defendant], I asked you a

question. It's a simple answer. Do you

think you can hire an attorney for that, to

perform or defend you in this case? The record reflects--[defendant] any other argu-

ment you want [to make] regarding the reason-

ableness of this fee? Any other argument or

estimate you want to make regarding the rea-

sonableness of that amount?

[DEFENDANT]: I want to appeal.

THE COURT: I am going to shortly advise

you of your right to appeal. This is your

opportunity to--

[DEFENDANT]: What opportunity, [y]our

- 4 - [h]onor? Your [h]onor, I had no opportunity

here in this room. All my rights have been

violated in this [c]ourt. What opportunity

did I have here?

THE COURT: [Defendant], one more time.

You want to make any other statement, argu-

ment, objections to the amount of $750 as

reasonable?

[DEFENDANT]: Yeah, I object to the $750.

THE COURT: All right. What's your

objection to it?

[DEFENDANT]: How many hours--I mean,

how many hours did he work with me on this?

THE COURT: You heard [defense coun-

sel's] representation of the total amount of time.

[DEFENDANT]: The record in this case

reflects and then he was a [c]ourt[-

]appointed attorney. How can I pay for a

[c]ourt[-]appointed attorney?

THE COURT: [Defendant], you were admon-

ished at the time I appointed [defense coun-

sel] that you would be required to reimburse

the county for all or part of the cost for

your defense.

- 5 - [DEFENDANT]: Uh-huh.

THE COURT: So, you have anything else

you want to tell me why, about why you do not

think that's a reasonable figure for time

expended by--

[DEFENDANT]: The 15 hours. I don't

believe it was 15 hours that he worked with

me on this.

THE COURT: Well, do you acknowledge that we were here on the 15th to pick a jury,

15th of November and picked a jury; correct?

[DEFENDANT]: Yeah.

THE COURT: Okay. And then we were here

on the 17th?

[DEFENDANT]: Which was?

THE COURT: For a jury trial. Correct, correct, [defendant]?

[DEFENDANT]: I plead the 5th on this

one, [y]our [h]onor. I am, I am not going to

say--I am not going to answer anymore [sic]

questions.

THE COURT: Okay. Well, the record then

reflects that you have declined an opportu-

nity to make any further argument or any

objections to the fees. All right. $750 is

more than reasonable for [p]ublic[-]

- 6 - [d]efender fees reimbursement in this case.

All right."

The court then advised defendant of his appeal rights and the

hearing concluded.

This appeal followed.

II. THE TRIAL COURT'S ORDER THAT DEFENDANT PAY $750 FOR HIS PUBLIC DEFENDER Defendant argues that the trial court erred by ordering

him to pay a $750 public-defender fee without considering defen-

dant's ability to pay. We agree. Section 113-3.1(a) of the Code provides, in pertinent

part, as follows:

"Whenever *** the court appoints counsel

to represent a defendant, the court may order

the defendant to pay to the [c]lerk of the

[c]ircuit [c]ourt a reasonable sum to reim-

burse 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 defen-

dant under [s]ection 113-3 of this Code and

any other information pertaining to the de-

fendant's financial circumstances which may

be submitted by the parties." 725 ILCS

5/113-3.1(a) (West 2004).

In 1997, our supreme court held that "[t]he language of

[s]ection 113-3.1(a) clearly requires the trial court to conduct

- 7 - a hearing into the defendant's financial resources as a precondi-

tion to ordering reimbursement." People v. Love, 177 Ill. 2d

550, 555, 687 N.E.2d 32, 35 (1997). Specifically, (1) "[t]he

hearing must focus on the foreseeable ability of the defendant to

pay reimbursement as well as the costs of the representation

provided," and (2) the court must "find an ability to pay before

[ordering] the defendant to pay reimbursement for appointed

counsel." Love, 177 Ill. 2d at 563, 687 N.E.2d at 38. In

addition, in People v. Johnson, 297 Ill. App. 3d 163, 164-65, 696

N.E.2d 1269, 1270 (1998), this court held that the defendant must

(1) have notice that the trial court is considering imposing a

payment order under section 113-3.1 of the Code and (2) be given

the opportunity to present evidence or argument regarding his

ability to pay and other relevant circumstances.

In People v. Bass, 351 Ill. App. 3d 1064, 1069, 815 N.E.2d 462, 467 (2004), at the conclusion of the defendant's

sentencing hearing, the trial court (1) announced, "'[c]ause

called for hearing as to court-appointed attorney fees'"; (2)

asked the defendant where he was employed and how much he earned;

and (3) assessed a court-appointed attorney fee of $500 against

the defendant. On appeal, this court vacated the trial court's

order imposing the $500 payment, upon concluding that (1) the

only notice the defendant received was the court's call for a

hearing and the two questions the court asked the defendant about

his employment; (2) the defendant was not given an opportunity to

present evidence regarding the assessment; and (3) the record did

- 8 - not show that the court considered defendant's financial affida-

vit. Bass, 351 Ill. App. 3d at 1070, 815 N.E.2d at 468.

The hearing conducted in this case was even further off

the mark than the one conducted in Bass. Here, (1) the trial

court never (a) stated that defendant's ability to pay was at

issue nor (b) asked any questions of defendant that would prompt

him to address his financial condition; (2) the court's colloquy

with defendant focused solely on the reasonableness of the

attorney fee; (3) the record contains no indication that the

court considered the defendant's financial affidavit or any other

evidence of his financial resources; (4) the record does not

contain a financial affidavit or any documentation indicating

defendant's financial condition; and (5) the court did not make a

finding regarding defendant's ability to pay. We thus conclude

that the court failed to conduct a hearing that complies with

section 113-3.1(a) of the Code and Love. In so concluding, we note that an adequate Love hearing

need not be lengthy or complex. As this court stated in Johnson:

"[The] statutorily required hearing need only

(1) provide the defendant with notice that

the trial court is considering imposing a

payment order, pursuant to section 113-3.1 of

the Code, and (2) give the defendant an op-

portunity to present evidence regarding his

ability to pay and other relevant circum-

stances, and otherwise to be heard regarding

- 9 - whether the court should impose such an or-

der." Johnson, 297 Ill. App. 3d at 164-65,

696 N.E.2d at 1270.

Accordingly, after the defendant is informed of the nature of the

proceeding, the court should (1) receive evidence on the defen-

dant's ability to pay, (2) make a finding thereon, (3) state for

the record what evidence the court considered in making its

finding and (4) if the ability to pay has been found, determine

and set a reasonable reimbursement figure. We note that it is

entirely appropriate for the court to consider existing evidence

of the defendant's financial condition, such as an affidavit

prepared in order to obtain court-appointed counsel or a presen-

tence investigation report that contains pertinent financial

data. If the court does so, it should state in its finding that

those materials were relied on in reaching its determination.

Finally, we note that the trial court in this case did

not err by considering the reasonableness of the public-defender

fee. Rather, the court erred by failing to consider at all what should be the primary focus of a Love hearing--namely, the defendant's ability to pay.

III. CONCLUSION

For the reasons stated, we affirm defendant's convic-

tion and sentence, vacate that portion of the trial court's

sentencing order imposing the $750 public-defender fee, and

remand for a hearing in conformity with section 113-3.1 of the

Code.

- 10 - Affirmed in part and vacated in part; cause remanded

with directions.

APPLETON and KNECHT, JJ., concur.

- 11 -