People v. Breeden

2014 IL App (4th) 121049

• Court: Appellate Court of Illinois
• Decided: November 25, 2014
• Docket: 4-12-1049
• Status: Unpublished

Opinion

FILED 2014 IL App (4th) 121049 November 25, 2014 Carla Bender NO. 4-12-1049 th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County THOMAS BREEDEN, ) No. 10CF63 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Knecht concurred in the judgment and opinion. Presiding Justice Appleton concurred in part and dissented in part, with opinion.

OPINION ¶1 The trial court sentenced defendant, Thomas Breeden, to 58 months' imprison-

ment for failure to register as a sex offender (730 ILCS 150/6 (West 2008)). Defendant appeals,

arguing the sentence is too severe. We do not find the sentence to be an abuse of discretion.

¶2 The State points out that three of the monetary assessments in this case are void

because the circuit clerk, rather than a judge, imposed them and because case law regards them

as fines. These are the assessments of $10 for the arrestee's medical expenses (730 ILCS 125/17

(West 2008)), $10 for State Police services (705 ILCS 105/27.3a(1.5), (5) (West 2010)), and $5

for the drug court program (55 ILCS 5/5-1101(f) (West 2008)). The State further points out that

a fourth assessment, a fine of $255 under section 10 of the Sex Offender Registration Act (730

ILCS 150/10 (West 2008)), is void because even though a judge imposed it, the fine is less than the minimum amount of $500 that section 10 requires. Defendant agrees with the State's argu-

ments regarding these four fines, and so do we.

¶3 Therefore, we vacate those four fines and remand this case to the trial court with

directions to calculate and directly impose any mandatory fines, including a sex offender regis-

tration fine in the amount of $500, applying any monetary credit to which defendant is entitled.

Otherwise, we affirm the trial court's judgment.

¶4 I. BACKGROUND

¶5 A. The Original Charge

¶6 On January 15, 2010, the State filed an information against defendant in Cham-

paign County, charging that on or about October 5, 2009, he violated section 6 of the Sex Of-

fender Registration Act (730 ILCS 150/6 (West 2008)) in that, being a "sex offender" within the

meaning of section 2(A) (730 ILCS 150/2(A) (West 2008)), he failed to "register in person with

the new agency of jurisdiction" within three days after changing his residence.

¶7 B. The Negotiated Guilty Plea

¶8 In a hearing on April 27, 2010, defendant said he wanted to plead guilty to the

charge of failing to register as a sex offender. The trial court admonished him, telling him,

among other things, the minimum and maximum punishments for the offense. The court said:

"THE COURT: This is a Class 3 felony.

Standard penalty range, counsel?

MR. KANIS [(prosecutor)]: Standard range.

THE COURT: Means you can be sent to prison for not less

than two, nor more than five years, followed by a period of manda-

-2- tory supervised release of one year. Maximum fine could be up to

25 thousand dollars."

¶9 After confirming with defendant that he understood all the rights he would be giv-

ing up by pleading guilty and that he was pleading guilty of his own free will, the trial court

asked counsel if there were any agreements. An assistant State's Attorney, Chris Kanis, replied:

"MR. KANIS: Your Honor, in exchange for Defendant's

plea of guilty to Count I, be sentenced to probation for a period of

24 months. Serve 18 days in the county correctional center. Credit

for nine days served, making this a time-served plea. Pay a fine of

three hundred dollars and court costs. A local anticrime assess-

ment fee of ten dollars. Violent Crime Victims Assistance Act

Fee. Probation service fee to be set by the Court. Genetic marker

grouping analysis fee of two hundred dollars. Total 45 dollars

credit against any fines for time spent in custody. And comply

with [deoxyribonucleic acid (DNA)] reporting requirements and

statute.

THE COURT: Ms. Propps [(defense counsel)], is that the

agreement?

MS. PROPPS: Yes, Your Honor.

THE COURT: Mr. Breeden, is that the agreement that you

have with the State?

DEFENDANT: Yes, sir."

-3- ¶ 10 In response to the trial court's queries, defendant denied anyone had promised him

anything else, and he denied he had been forced or threatened. Upon defendant's reaffirmation

of his desire to plead guilty to the charge of failure to register as a sex offender, the court accept-

ed his guilty plea.

¶ 11 The trial court proceeded immediately to sentencing. After hearing the prosecu-

tor's brief summary of defendant's criminal record, the court imposed the following sentence:

"THE COURT: We'll show the Defendant is sentenced to a

period of probation for 24 months, subject to the standard condi-

tions which will include 18 days in custody with credit for nine

served. He has the monetary obligations due and owing, with a

probation service fee fixed in the amount of 15 dollars per month.

If he's not already done so, he'll submit specimens of blood,

saliva, or tissue to the Department of State Police."

¶ 12 The written sentencing order, dated and entered the same day, incorporated the

terms of the plea agreement and stated the probation service fee would be $15 per month, but it

did not specify the amount of the Violent Crime Victims Assistance fee. The order required de-

fendant to "pay all fines, fees and costs as authorized by statute" and to pay all financial obliga-

tions within 180 days.

¶ 13 A docket entry dated the same day, April 27, 2010, said: "Fine + Cost Fee

$1604.55 Signed Judge DIFANIS THOMAS J." In addition to the 24 months of probation; the

18 days in jail; the credit for 9 days; and the submission of blood, saliva, and tissue specimens,

the docket entry imposed the following monetary assessments:

"Fine + Cost 519.55

-4- PROBATION MONITORIN 360.00

PUBLIC DEFENDER 450.00

ST POLICE SERVICES 10.00

CRIME STOPPERS 10.00

STATE OFFENDER DNA .00

SEXUAL OFFENDER REG 255.00."

¶ 14 The record contains a printout from the offender DNA database of the Illinois

State Police. According to the printout, defendant had already submitted a DNA specimen. He

did so on June 2, 1997.

¶ 15 C. The Revocation of Probation

¶ 16 On April 23, 2012, the State filed a petition to revoke defendant's probation. Ac-

cording to the petition, one of the conditions of probation was that he refrain from violating any

criminal statute. The petition alleged that on April 3, 2012, he violated this condition by violat-

ing two subsections of section 11-9.4-1 of the Criminal Code of 1961 (720 ILCS 5/11-9.4-1

(West 2010)). He allegedly violated subsection (b) (720 ILCS 5/11-9.4-1(b) (West 2010)) by

knowingly being present in a public park, Lincoln Park, in Danville. He allegedly violated sub-

section (c) (720 ILCS 5/11-9.4-1(c) (West 2010)) by knowingly loitering on a public way within

500 feet of Lincoln Park. (Even though the violation of probation occurred in Vermilion County,

the Champaign County circuit court has jurisdiction because the original offense of failure to

register as a sex offender occurred in Champaign County.)

¶ 17 On August 1, 2012, the trial court held a hearing on the State's petition to revoke

probation. Defense counsel told the trial court "this [was] going to be an admission and stipula-

tion." After admonishing defendant and confirming that his admission was voluntary (see Ill. S.

-5- Ct. R. 402A(a), (b) (eff. Nov. 1, 2003)), the court said it was ready to hear the factual basis (see

Ill. S. Ct. R. 402A(c) (eff. Nov. 1, 2003)).

¶ 18 The prosecutor represented that the evidence would show the following. Around

April 3, 2012, defendant was in the process of trying to buy a car from Wright Motors, a retail

merchant in Danville. Wright Motors had lent him a vehicle to use temporarily, pending the

sale. The sale fell through, and Wright Motors requested defendant to give back the vehicle it

had lent him. In telephone conversations with Wright Motors, defendant falsely said that he was

in Bloomington and that he was unable to return the vehicle. One of the managers of Wright

Motors, a man named Carter, went to Lincoln Park to pick up his three-year-old son, and he no-

ticed the loaner vehicle parked in a parking lot within 500 feet of the park. He approached the

vehicle and saw defendant sitting inside it. Carter called two other employees of Wright Motors,

who then repossessed the vehicle from defendant. Someone also called the police, and the police

arrived and placed defendant under arrest. Defendant admitted he had lied to Wright Motors

about his location, and he admitted being in the park.

¶ 19 The trial court asked defense counsel if she believed the State had witnesses who,

if called, would testify substantially as indicated in the factual basis. Defense counsel answered

yes. The court accepted defendant's admission and stipulation to the allegations in the petition to

revoke probation, and the court revoked his probation. The court also ordered a presentence in-

vestigation report and a sex offender evaluation.

¶ 20 D. The Presentence Investigation Report

¶ 21 A probation officer, Jeremy M. Jessup, wrote a presentence investigation report,

dated September 24, 2012. According to the report, defendant was 46 years old. He had an

eleventh-grade education and lacked a general equivalency diploma. He was currently unem-

-6- ployed because of an injury, torn ligaments and tendons in his right ankle, which disabled him

from walking on an incline of 45 degrees or more. From March 2007 to November 2011 he

worked as a grain mover until his employer fired him because of the limitations imposed by his

ankle injury. From 2005 to 2007 he worked through Labor Ready. He was now surviving on

food stamps. He had not applied for disability because he preferred to be employed.

¶ 22 Defendant had the following previous felony convictions. In September 1989, the

La Salle County circuit court sentenced him to two years' imprisonment for forgery and three

years' imprisonment for violation of bail bond. In July 1997, the McLean County circuit court

sentenced him to two consecutive terms of nine years' imprisonment for two counts of predatory

criminal sexual assault of a child.

¶ 23 Also, from October 1989 to May 1997, defendant was convicted and sentenced 14

times for driving while his driver's license was suspended. In April 1996, the McLean County

circuit court sentenced him to 24 months' probation for misdemeanor domestic battery. The

court revoked this probation because of his commission of a new offense, i.e., driving while his

driver's license was suspended, and resentenced him to 240 days in jail, with credit for 240 days.

The probation was "terminated unsuccessfully."

¶ 24 Jessup wrote:

"To date, [defendant] has been sentenced to terms of incar-

ceration in either the Illinois Department of Corrections or local

county jails on 11 occasions including the jail term imposed in this

case. He has also been afforded community-based sentences of

Conditional Discharge or Probation on seven occasions. Although

records were difficult to locate and limited due to the age of many

-7- of the convictions, it appears the defendant failed to comply with

conditions, financial in many cases, in all of the community-based

sentences."

¶ 25 Because defendant continued to reside in Danville, the Vermilion County proba-

tion officer, Patrina Smith, agreed in May 2010 to provide "courtesy supervision" while defend-

ant served his 24-month probation for failure to register as a sex offender. Jessup wrote:

"All progress reports were positive until 4/03/12 when the defend-

ant was arrested by Danville Police for being present in a public

park while children were present. On 9/12/12, this officer spoke

with Officer Smith via telephone. Officer Smith indicated the de-

fendant's compliance was problematic around April 2012 to in-

clude missing scheduled office visits and home visits. However,

since approximately May 2012, his compliance and performance

has [sic] improved and she currently has no compliance problems

with him."

¶ 26 Defendant missed his appointment, however, for a sex offender risk assessment.

Jessup wrote:

"The defendant has never participated in Sex Offender

Treatment. He was ordered to obtain a Sex Offender Risk As-

sessment pursuant to this matter. This officer directed the defend-

ant in writing to meet with Michael Kleppin at the Court Services

Office, at no cost to the defendant, on 8/24/12 at 9:00 am. [De-

fendant] contacted this officer on 9/18/12[,] acknowledging he

-8- failed to keep the 8/24/12 appointment with Mr. Kleppin. He was

provided Mr. Kleppin's contact information and instructed to con-

tact him directly to reschedule."

As of the date of the report, Jessup had "no information verifying the defendant ha[d] in fact re-

scheduled with Mr. Kleppin."

¶ 27 Later, on September 24, 2012, in an addendum to the presentence investigation

report, Jessup wrote:

"On 9/19/12, this officer was able to verify with Mr.

Kleppin that [defendant] had contacted him and rescheduled the

assessment. It is this officer's understanding the meeting with Mr.

Kleppin is now set for 10/09/12 at 9:00 am at the Court Services

Office. This officer anticipates the Sex Offender Risk Assessment

report would be available in mid to late November 2012 provided

[defendant] keeps the 10/09/12 appointment."

¶ 28 E. The Resentencing Hearing

¶ 29 On September 24, 2012, the trial court held a hearing for the purpose of resen-

tencing defendant for the original offense of failing to register as a sex offender.

¶ 30 An assistant State's Attorney, Troy Lozar, recommended imprisonment for 48

months, considering defendant's criminal history, his lie to Wright Motors, and his failure to at-

tend the appointment with Kleppin.

¶ 31 Defense counsel, Jamie Propps, recommended another community-based sen-

tence. She observed:

-9- "MS. PROPPS: Your Honor, first and foremost, my client

did take responsibility in pleading guilty to the original offense

and, once again, by stipulating to the petition to revoke.

I would also ask the Court to note that my client has only

been admonished with regard to standard range sentencing in this

case as opposed to extended term sentencing.

MR. LOZAR: If that is the case, then I will retract my rec-

ommendation, Judge, and recommend 36. I am sorry. Excuse me.

Counsel is correct, and I apologize for interrupting. It remains 48

for two to five. My apologies to both counsel and to the court."

¶ 32 Most of defendant's criminal history consisted of traffic offenses, defense counsel

argued, and except for the original offense in 2010, the felony convictions were old. Other than

some noncompliance in April 2012, when defendant was arrested for being in a public park, the

probation officer in Vermilion County had experienced no problems with him. Despite his ankle

injury, defendant chose to work instead of applying for disability, and defense counsel presented

a letter from David McGarvey of Sweep-a-Lot stating that since September 14, 2012, defendant

had in fact been working at least 40 hours a week as a sweeper driver. Although defense counsel

admitted that defendant had no excuse for missing his appointment with Kleppin, he had re-

scheduled the appointment, and he had faithfully attended his interview with Jessup.

¶ 33 Defendant made a statement in allocution, apologizing for being in the park. He

added: "I mean there is circumstances, but they was—I was there. And I always try to put my

best foot forward, and I know I haven't in the past, but I'm just trying to do the right thing."

- 10 - ¶ 34 The trial court found no statutory mitigating factor, but it found three nonstatutory

mitigating factors: (1) defendant had pleaded guilty to the charge of failing to register as a sex

offender, (2) he had admitted the petition to revoke his probation, and (3) he had been gainfully

employed.

¶ 35 The trial court found two statutory aggravating factors: (1) defendant's criminal

history and (2) the need to deter other sex offenders from failing to register.

¶ 36 The original offense, for which defendant was being resentenced—failure to reg-

ister as a sex offender—remained a "probational offense" even after his admitted violation of

probation. Therefore, the court observed, it was "obligated to consider a community-based sen-

tence as the first alternative." The court said:

"The court has to consider the circumstances surrounding

the offense, that would be failure to register, the history, character

and condition of the defendant, and the court has to make a call as

to whether or not he needs to be incarcerated because he's danger-

ous.

That is not an easy call under these circumstances. He is a

convicted sex offender, two counts of predatory sexual assault. He

was found in a public park when he shouldn't have been there.

But at this point it's questionable whether or not he needs to

be incarcerated because he's dangerous. He is not likely to mug

somebody on the street. He is not likely to commit an armed rob-

bery, but the fact remains the offense that required him to register

was an incredibly serious offense.

- 11 - The other factor that the court has to consider is would a

further community-based sentence deprecate the seriousness of his

conduct and be inconsistent with the ends of justice.

The presentence report provides the court I believe with

ample opportunity to judge his rehabilitative potential at this point.

The 14 convictions for driving under suspension indicate that dur-

ing that period of time that he started that, in '89, and his last driv-

ing under suspension was in '97, which was then followed by an

18-year period of incarceration to the Department of Corrections,

that certainly did take him from behind the wheel and cease those

type of offenses.

When you have 14 convictions for driving under suspen-

sion, that tells the court loudly and clearly that you really don't care

about the law, [']I know I am not supposed to drive but I will, I

know I shouldn't be in a public park but I will.[']

And at this point I believe a further community-based sen-

tence would deprecate the seriousness of his conduct, be incon-

sistent with the ends of justice. It would not pose the appropriate

deterrent factor for other sex offenders who are required to regis-

ter.

Therefore, I am going to sentence this defendant to a period

of incarceration in the Illinois Department of Corrections. It will

be for a period of 58 months. He will get credit for thirteen days

- 12 - heretofore served in the Champaign County Correctional Center.

The defendant will also get credit for $65 for time spent in custo-

dy."

¶ 37 The written sentencing order, entered the same day, September 24, 2012, says

nothing about monetary obligations, except that defendant was to "pay costs of prosecution here-

in." Nor does it say anything about monetary credit.

¶ 38 A docket entry for that date says in part: "Cost Only Fee $382.00 Signed Judge

DIFANIS THOMAS J" and "Fines and/or Cost/Penalties and Fees In Force."

¶ 39 The record includes printouts from the circuit clerk listing additional assessments

against defendant. Among them are $10 for "Arrestee's Medical," $10 for "St Police Services,"

and $5 for "drug court program."

¶ 40 F. The Motion To Reduce the Sentence

¶ 41 On September 26, 2012, defendant filed a motion to reduce the sentence. For es-

sentially four reasons, he argued the sentence of 58 months' imprisonment was too severe. First,

although he had been unemployed for a substantial time between 2009 and 2011 because of his

work-related injury, he had recently obtained gainful employed and was employed full-time as of

the date of the sentencing hearing. Second, his criminal history consisted mostly of "traffic or

property offenses or offenses that [were] over ten years old." Third, failure to register as a sex

offender was a nonviolent crime. Fourth, all probation progress reports from April 27, 2010, to

April 3, 2012, were positive.

¶ 42 In a hearing on November 9, 2012, the trial court denied the motion to reduce the

sentence.

¶ 43 This appeal followed.

- 13 - ¶ 44 II. ANALYSIS

¶ 45 A. The Severity of the Sentence

¶ 46 We should disturb a sentence only if we find it to be an abuse of discretion. Peo-

ple v. Perruquet, 68 Ill. 2d 149, 153 (1977). This is the most deferential standard of review

known to the law. People v. Crane, 195 Ill. 2d 42, 50 (2001). To be an abuse of discretion, a

decision must be clearly illogical, arbitrary, unreasonable, contrary to law, or not the product of

conscientious judgment. People v. Covington, 395 Ill. App. 3d 996, 1002-03 (2009). Even if we

ourselves would have given more weight to the mitigating factors and less weight to the aggra-

vating factors if we were the trial court, that fact would not be enough to justify interfering with

the trial court's sentencing decision. People v. Alexander, 239 Ill. 2d 205, 213 (2010); People v.

Coleman, 166 Ill. 2d 247, 261-62 (1995). Rather, the sentence would have to be outside "the

bounds of reason." (Internal quotation marks omitted.) Covington, 395 Ill. App. 3d at 1002-03.

¶ 47 Defendant contends that, for five reasons, it was an abuse of discretion to impose

upon him a prison sentence of 58 months, a length of time only two months less than the statuto-

ry maximum. See 730 ILCS 150/10(a) (West 2010) (failure to register as a sex offender is a

Class 3 felony); 730 ILCS 5/5-4.5-40(a) (West 2010) ("The sentence of imprisonment shall be a

determinate sentence of not less than 2 years and not more than 5 years [(60 months)].").

¶ 48 First, according to defendant, the trial court "call[ed] it 'questionable' whether [he]

should receive a sentence of probation or incarceration in the first place." Actually, that is not

what the court said. Defendant has edited out an important qualifier, the clause "because he's

dangerous." The court said:

"[T]he court has to make a call as to whether or not he needs to be

incarcerated because he's dangerous.

- 14 - That is not an easy call under these circumstances. ***

But at this point it's questionable whether or not he needs to be in-

carcerated because he's dangerous."

Although the court was ambivalent as to whether defendant was dangerous enough to imprison,

the court did not appear to be ambivalent about other rationales for imprisoning him, namely, to

accomplish justice, to deter others, and to prevent the offense of failure to register as a sex of-

fender from being regarded as less serious than it is.

¶ 49 Second, defendant argues his nonviolent conduct was not egregious enough to

warrant 58 months' imprisonment. But every failure to register as a sex offender is nonviolent.

It is a nonviolent offense. Nevertheless, in the opinion of the legislature, 58 months' imprison-

ment is within the range of a fitting punishment for this offense. See 730 ILCS 150/10(a) (West

2010); 730 ILCS 5/5-4.5-40(a) (West 2010).

¶ 50 Third, defendant claims that "the prosecutor's recommendations of 36 to 48

months' prison time," while not binding on the trial court (People v. Stidham, 178 Ill. App. 3d

643, 648 (1989)), "provide a useful indicator that the lower court's imposed sentence of 58

months was inappropriately severe." Defendant cites no authority for that claim, which is hard to

square with what we said in People v. Nussbaum, 251 Ill. App. 3d 779, 782-83 (1993): "[T]his

court's analysis of whether the trial court abused its discretion in its sentencing will *** not be

affected by the sentences the parties recommended to the trial court. *** We hold that counsels'

recommendations are deserving of whatever weight the sentencing court wishes to accord them

and nothing more."

¶ 51 Fourth, defendant points out that his criminal history "consisted of traffic or prop-

erty offenses that were over ten years old." While this is accurate, the trial court had to consider

- 15 - his habits, mentality, and general moral character (see People v. Calhoun, 404 Ill. App. 3d 362,

385 (2010)), and arguably, 14 convictions of driving while one's driver's license is suspended

reveal a contemptuous attitude toward the law. Also, the age of the previous convictions could

be explainable partly by his long imprisonment for predatory criminal sexual assault of a child,

during which he was under the supervision of correctional officers.

¶ 52 Fifth, there were some mitigating factors, namely, defendant's guilty plea, his ad-

mission of the petition to revoke probation, and his work history. The trial court, however, ex-

plicitly took those factors into account, and if the trial court decided they deserved only a little

weight, we do not see how we could rightfully gainsay the trial court in that regard. See Alexan-

der, 239 Ill. 2d at 213; Coleman, 166 Ill. 2d at 261-62.

¶ 53 In sum, when we consider defendant's criminal history together with his failure to

attend the court-ordered sex offender risk assessment, we are unable to say the trial court abused

its discretion by imposing a statutorily authorized sentence of 58 months' imprisonment.

¶ 54 B. Fines That Are Void

¶ 55 The State points out that some of the assessments the circuit clerk imposed on de-

fendant are fines. The State cites People v. Williams, 2013 IL App (4th) 120313, ¶¶ 18, 21, for

the proposition that $10 for the "Arrestee's Medical" (730 ILCS 125/17 (West 2008)) and $10 for

"St Police Services" (705 ILCS 105/27.3a(1.5), (5) (West 2010)) are fines. The State cites Peo-

ple v. Rexroad, 2013 IL App (4th) 110981, ¶ 53, for the proposition that $5 for the "Drug Court

Program" is a fine as well because defendant did not participate in the drug court. The State ob-

serves that the circuit clerk lacks authority to impose fines, as the appellate court held more than

25 years ago and has continued holding ever since. See People v. Chester, 2014 IL App (4th)

- 16 - 120564, ¶ 33 (citing cases). A fine imposed by a circuit clerk, instead of a judge, is void. People

v. Montag, 2014 IL App (4th) 120993, ¶ 37.

¶ 56 The State further argues that because the fine in the amount of $255 for "Sexual

Offender Reg" is less than the minimum fine of $500 required by the statute (730 ILCS

150/10(a) (West 2008)), that fine is void as well (see People v. Montiel, 365 Ill. App. 3d 601,

605-06 (2006)).

¶ 57 Defendant agrees with the State regarding these four fines. He also agrees with

the State's suggested remedy: we should remand this case to the trial court with directions to

calculate and directly impose any mandatory fines, including a sex offender registration fine in

the amount of $500, applying any monetary credit to which defendant is entitled. See People v.

Chester, 2014 IL App (4th) 120564, ¶ 37.

¶ 58 III. CONCLUSION

¶ 59 For the foregoing reasons, we vacate the fines labeled "Arrestee's Medical," "St

Police Services," "Drug Court Program," and "Sexual Offender Reg," and we remand this case to

the trial court with directions to calculate and directly impose any mandatory fines, including a

sex offender registration fine in the amount of $500, applying any monetary credit to which de-

fendant is entitled. Otherwise, we affirm the trial court's judgment.

¶ 60 Affirmed in part and vacated in part; cause remanded with directions.

- 17 - ¶ 61 PRESIDING JUSTICE APPLETON, concurring in part and dissenting in part.

¶ 62 While I concur with the majority's decision as far as it goes, I write separately to

address what the majority has omitted from its decision. Although the majority addresses the

four void fines the State points out in its brief, the majority is silent about other void or omitted

fines. Statutory law positively requires the imposition of these other fines, of which the majority

does not speak. Under binding supreme court decisions, I feel duty-bound to dissent from that

omission. This court has an independent duty to review the totality of the trial court's sentencing

order and to correct the sentencing order insomuch as it fails to conform to statutory law, regard-

less of whether the parties have specified a particular fine, fee, or cost to be reviewed.

¶ 63 A. Our Independent Duty To Correct Sentencing Orders That Omit Statutorily Required Fines

¶ 64 Even though, as a rule, reviewing courts should abstain from raising errors sua

sponte (People v. Perkins, 367 Ill. App. 3d 895, 906 (2006)), there is an exception to that rule

when it comes to void sentences. "A sentence which does not conform to a statutory requirement

is void." People v. Arna, 168 Ill. 2d 107, 113 (1995). "A court does not have authority to im-

pose a sentence that does not conform with statutory guidelines [citations] and a court exceeds its

authority when it orders a lesser or greater sentence than that which the statute mandates [cita-

tion]. [Citation.] In such a case, the defendant's sentence is illegal and void." People v. White,

2011 IL 109616, ¶ 20.

¶ 65 If a circuit clerk, rather than the trial court, imposes a fine, the fine is void from its

inception (People v. Larue, 2014 IL App (4th) 120595, ¶ 56; People v. Alghadi, 2011 IL App

(4th) 100012, ¶ 20), meaning the fine is a nullity, without legal effect (Black's Law Dictionary

1568 (7th ed. 1999) (definition of "void")). It follows that a sentence lacks any fine imposed

solely by a circuit clerk (since such a fine is void). It further follows that if statutory law requires

- 18 - the imposition of the fine in question, the sentence itself is void, being a more lenient sentence

than statutory law allows (White, 2011 IL 109616, ¶ 20; Montiel, 365 Ill. App. 3d at 605-06). A

sentence lacking a fine that statutory law requires is a sentence that "does not conform to a statu-

tory requirement," and such a sentence is void. Arna, 168 Ill. 2d at 113.

¶ 66 Not only can the appellate court, sua sponte, correct sentences that fail to conform

to statutory law (id.), but the appellate court has a duty to do so, sua sponte. The supreme court

said in People v. Thompson, 209 Ill. 2d 19, 27 (2004), and reiterated in Delgado v. Board of

Election Commissioners, 224 Ill. 2d 481, 486 (2007): "[C]ourts have an independent duty to va-

cate void orders ***." "Even if the parties themselves do not raise the question, courts have an

independent duty to vacate and expunge void orders and thus may sua sponte declare an order

void." Daniels v. Industrial Comm'n, 201 Ill. 2d 160, 166 (2002). See also People v. Childs, 278

Ill. App. 3d 65, 78 (1996) ("[I]f the sentence *** [were] void, this court would have had a duty to

sua sponte raise the issue."); People v. Magnus, 262 Ill. App. 3d 362, 365 (1994) ("Defendant's

[invocation of Illinois Supreme Court Rule 604 (eff. Aug. 1, 1992)] is without merit since this

issue was raised sua sponte by the court in fulfillment of our duty to vacate void judgments.").

¶ 67 B. The Difference Between a Fine and a Fee (or Cost)

¶ 68 The question of whether an assessment is a fine or a fee and the question of how

many assessments may be imposed in the case are both questions of law, which we should re-

solve de novo. People v. Gutman, 2011 IL 110338, ¶ 12. I will begin with some general obser-

vations about fines and fees.

¶ 69 Case law sets up a dichotomy between a fee or cost on the one hand and a fine on

the other hand. People v. Jones, 223 Ill. 2d 569, 582 (2006). A fine is a pecuniary punishment

- 19 - for a conviction, whereas a fee or cost "compensat[es] the state for some expenditure [it] in-

curred in prosecuting the defendant." (Internal quotation marks omitted.) Id.

¶ 70 In Jones, the supreme court saw no need to make a rigorous distinction between a

fee and a cost. Id. at 582 n.1. For purposes of that case, it was enough to observe that both a fee

and a cost sought to "recoup expenses" the State had "incurred in prosecuting the defendant." Id.

at 582. Statutory law does not appear to make a rigorous distinction between a fee and a cost,

either. See 705 ILCS 105/16 (West 2012) (the circuit clerk shall keep a "fee book," and "when-

ever an action is determined and final judgment entered, the costs of each party litigant shall be

made up and entered in such fee book" (emphases added)).

¶ 71 So, it appears that both the supreme court and statutory law treat a fee and a cost

as roughly synonymous. According to the supreme court, a fee recoups a cost. "This is the cen-

tral characteristic which separates a fee from a fine. A charge is a fee if and only if it is intended

to reimburse the state for some cost incurred in [the] defendant's prosecution." (Emphasis in

original.) Jones, 223 Ill. 2d at 600. In this context, the supreme court quoted section 124A-5 of

the Code of Criminal Procedure of 1963 (725 ILCS 5/124A-5 (West 2012)), which provides:

"When a person is convicted of an offense ***, the court shall enter judgment that the offender

pay the costs of the prosecution." (Emphasis added.)

¶ 72 In Jones, the supreme court listed some examples of costs: " 'A "cost" is a charge

or fee taxed by a court such as a filing fee, jury fee, courthouse fee, or reporter fee.' " Jones, 223

Ill. 2d at 581 (quoting People v. White, 333 Ill. App. 3d 777, 781 (2002)). Ultimately, those ex-

amples came from Black's Law Dictionary. White, 333 Ill. App. 3d at 781 (citing People v.

Despenza, 318 Ill. App. 3d 1155, 1157 (2001), citing Black's Law Dictionary 350 (7th ed.

- 20 - 1999)); but see Kemner v. Monsanto Co., 217 Ill. App. 3d 188, 215 (1991) (jurors' fees not taxa-

ble as costs); People v. Kluck, 70 Ill. App. 3d 582, 584 (1979) (same).

¶ 73 In a civil case, a filing fee, courthouse fee, or reporter's fee is a cost only because

the prevailing party had to pay that item in order to participate in the litigation, not because the

county incurred an expense in maintaining the court system. The county charges all civil liti-

gants a courthouse fee and a filing fee to help finance the circuit court, and the losing party must

reimburse not the circuit clerk but the prevailing party, who had to pay the courthouse fee and

the filing fee to prosecute the case. The prevailing party may file a bill of costs, an itemized

statement of that party's litigation expenses, which, in a hearing on the bill of costs, the trial court

will allow or disallow (or allow in part and disallow in part). Pokora v. Warehouse Direct, Inc.,

322 Ill. App. 3d 870, 874 (2001); Gruidl v. Schell, 166 Ill. App. 3d 276, 283 (1988); Bergman v.

Schlundt, 163 Ill. App. 3d 1070, 1071-72 (1987). A "cost" is an "allowance[] in the nature of

incidental damages awarded by law to reimburse the prevailing party, to some extent at least, for

the expenses necessarily incurred in the assertion of his rights in court." Galowich v. Beech Air-

craft Corp., 92 Ill. 2d 157, 165-66 (1982).

¶ 74 A cost incurred in the assertion of one's rights in court is different from a cost in-

curred in the operation of the court system. Undeniably, without a court system and a court-

house, which cost money to maintain, there would have been no civil case in the first place, but

that fact is not enough to make a courthouse fee and a filing fee a cost: those items are costs on-

ly because the prevailing party had to pay them as expenses of litigation. See id.; 55 ILCS 40/3

(West 2012) ("It shall be the duty of all clerks of court upon application, to give to any person a

certificate, showing the amount of costs and fees due such person, and the names of the parties to

any suit or proceeding in which the same are taxed." (Emphasis added.)).

- 21 - ¶ 75 In a criminal case, the State's Attorney does not have to pay a courthouse fee or a

filing fee to prosecute the defendant. Therefore, those items and similar items are not "costs,"

properly speaking, in a criminal case—even if the legislature called them "costs." Just as the

statutory label of a "fee" is "not necessarily definitive" (Jones, 223 Ill. 2d at 583), the statutory

label of a "cost" is not necessarily definitive. The legislature cannot transform what is essentially

a fine into a cost merely by calling it such, any more than the legislature can transform a fine into

a fee by calling it such. See id.

¶ 76 In other words, "cost" is a term of art, which might be inapt in a statute aimed at

financing the court system. An assessment can finance the court system without being a cost of

the prosecution itself—even though, obviously, the existence of a court system was essential to

the prosecution. A fee to repair the courthouse roof, for example, or to pay security guards is not

a cost of the prosecution, even though there could have been no prosecution with rainwater soak-

ing the courtroom or with troublemakers disrupting the proceedings.

¶ 77 A witness fee, by contrast, would be a true cost of the prosecution. People v.

Shackelford, 225 Ill. App. 3d 676, 677 (1992). Specifically to prosecute the defendant, the State

subpoenaed witnesses, and as a result, the county, a political subdivision of the state (Proffitt v.

County of Christian, 370 Ill. 530, 535 (1939)), became liable to those witnesses for statutory fees

(see 705 ILCS 35/4.3 (West 2012)). Also, specifically to prosecute the defendant, the State had

to procure his or her attendance. Serving an arrest warrant or, say, transporting the defendant

from a different county or state costs money, and the county is entitled to reimbursement for this

cost of the prosecution (725 ILCS 5/124A-5 (West 2012)). In short, a distinction has to be made

between "the costs of the prosecution" (emphasis added) (id.) and "expenditures which must be

- 22 - made in order to maintain and operate the judicial system irrespective of specific violations of

the law" (Gooch v. State of Indiana, 685 N.E.2d 152, 155 (Ind. App. Ct. 1997)).

¶ 78 The supreme court made this distinction in People v. Graves, 235 Ill. 2d 244

(2009), a case in which the defendant incurred fines for possessing a stolen motor vehicle (id. at

246). The trial court sentenced him to imprisonment and imposed upon him various monetary

assessments, including $10 for the mental health court and $5 for the youth diversion/peer court.

Id. Subsections (d-5) and (e) of section 5-1101 of the Counties Code (55 ILCS 5/5-1101(d-5),

(e) (West 2006)) authorized those assessments. Graves, 235 Ill. 2d at 246.

¶ 79 The defendant in Graves argued that the assessments for the mental health court

and youth diversion/peer court should be "vacated as unconstitutional where there was no ration-

al relationship between the legislative purpose underlying the fees and his offense of possession

of a stolen motor vehicle." Id. The appellate court concluded, however, that the two assess-

ments actually were fines rather than fees. Id. at 246-47. On the basis of that distinction, the ap-

pellate court upheld the two assessments against the defendant's constitutional challenge. Id.

¶ 80 The only issue before the supreme court was "whether the appellate court correct-

ly found that the monetary charges imposed by the circuit court [t]herein [were] fines and not

fees." Id. at 247. Whenever the constitutionality of a statutory assessment was challenged, the

initial question was whether the assessment was a fine or a fee. Id. at 250. If the assessment

were a fine as opposed to a fee, the purposes to which the proceeds were applied had no bearing

on the constitutionality of the assessment. Id. at 252. To be constitutional, a fine (as distinct

from a fee) did not have to be spent on any purpose relevant to the conviction. So, in the case of

a fine, one did not even reach the question of a rational relationship.

- 23 - ¶ 81 The assessments for the mental health court and youth diversion/peer court were

fines disguised as fees. The supreme court noted that, despite the heading of section 5-1101 (55

ILCS 5/5-1101 (West 2006)), which read, " 'Additional fees to finance [the] court system,' " the

assessments for the mental health court and youth diversion/peer review court had the central

characteristic of a fine: they "[did] not seek to compensate the state for any costs incurred as the

result of prosecuting the defendant." (Emphasis added.) Graves, 235 Ill. 2d at 251 (quoting 55

ILCS 5/5-1101 (West 2006)). In addition, the supreme court noted, these assessments had two

other attributes of a fine: "they were exacted only after [a] conviction for a criminal offense[,]

and, while payable to a county fund rather than the state treasury, it [was] undisputed that they

further[ed] the state's interest in financing the court system" (id. at 252)—thus the title of the sec-

tion: "Additional fees to finance [the] court system" (55 ILCS 5/5-1101 (West 2006)). (I would

suggest it makes little sense to view the postconviction imposition of an assessment as a factor

indicating a fine, considering that costs likewise are imposed on the defendant only after convic-

tion. See 725 ILCS 5/124A-5 (West 2012).)

¶ 82 Even so, the defendant insisted that the assessments for the mental health court

and youth diversion/peer review court could not possibly be fines, considering that the Counties

Code gave the county board no authority to impose punishments. Graves, 235 Ill. 2d at 252.

The supreme court disagreed. For one thing, section 5-1113 of the Counties Code, a section enti-

tled " 'Ordinance and rules to execute powers; limitations on punishments,' " gave county boards

"the limited authority to set fines as punishments for various violations." Id. at 253 (quoting 55

ILCS 5/5-1113 (West 2006)). For another thing, section 5-1101 of the Counties Code, even

though it was labeled as " 'fees to finance [the] court system,' " really authorized fines. (Empha-

- 24 - sis added.) Graves, 235 Ill. 2d at 253 (quoting 55 ILCS 5/5-1101 (West 2006)). The supreme

court said:

"In addition to the two subsections under which fines were im-

posed in this case, section 5-1101 also authorizes monetary penal-

ties to be paid by a defendant on a judgment of guilty or a grant of

supervision for violation of certain sections of the Illinois Vehicle

Code or of the Unified Code of Corrections. See 55 ILCS 5/5-

1101(a), (c), (d) (West 2006)." (Emphasis added.) Id.

Note that, in the passage quoted above, two of the subsections the supreme court cited were sub-

sections (a) and (c) of section 5-1101 of the Counties Code (55 ILCS 5/5-1101(a), (c) (West

2006)). Further note that, under subsection (g) (55 ILCS 5/5-1101(g) (West 2006)), the proceeds

of all assessments collected under subsections (a) and (c) were to "be placed in the county gen-

eral fund and used to finance the court system in the county." Thus, even though the assessments

were put in a county fund and were used to finance the court system, the supreme court called

them "monetary penalties," i.e., fines. Graves, 235 Ill. 2d at 253. Indeed, we can go further:

precisely because such assessments were intended to "financ[e] the court system," the supreme

court called them fines. Id. at 252.

¶ 83 In sum, when deciding in which category an assessment belongs—the category of

fees and costs on the one hand or the category of fines on the other hand—we must be careful to

differentiate between financing the court system and reimbursing the state for an expense of the

prosecution. The former intent makes a fine (id.); the latter intent makes a fee or cost (id. at

250).

¶ 84 C. The Inability of the Circuit Clerk To Impose a Fine

- 25 - ¶ 85 It is important to differentiate between fees and fines because, although circuit

clerks may (in the first instance at least) decide the amounts of costs, they may not decide the

amounts of fines.

¶ 86 Section 16(5) of the Clerks of Courts Act (Clerks Act) (705 ILCS 105/16(5)

(West 2012)) provides: "It shall not be necessary to insert the cost in the judgment; but whenev-

er an action is determined and final judgment entered, the costs of each party litigant shall be

made up and entered in such fee book, which shall be considered a part of the record and judg-

ment, subject, however, at all times to be corrected by the court ***." Cf. 735 ILCS 5/5-121

(West 2012) ("The clerk of any court in this state is hereby authorized and required to tax and

subscribe all bills of costs arising in any action or proceeding instituted in which such person is

clerk, agreeably to the rates which shall, at that time, be allowed or specified by law and shall in

no case allow any item or charge unless the clerk shall be satisfied that the service for which it

was made was actually performed in the action or proceeding."). Traditionally, the trial court

awarded costs to the prevailing party without any itemization or amount, and the assessment or

taxation of costs was thereafter a ministerial duty of the clerk of the court. Bryan v. Smith, 3 Ill.

47, 49 (1839); Miller v. Adams, 5 Ill. 195, 196 (1843); People v. Nicholls, 45 Ill. App. 3d 312,

314 (1977), aff'd in part & rev'd in part on other grounds, 71 Ill. 2d 166 (1978). A party dissat-

isfied with the clerk's assessment of costs could file a motion to retax costs. 735 ILCS 5/5-123

(West 2012); Parisher v. Waldo, 72 Ill. 71, 72 (1874). (As we have noted, in civil litigation, an

alternative procedure has developed whereby, in the first instance, the prevailing party files a bill

of costs and schedules a hearing on it.)

¶ 87 A circuit clerk has the authority to assess costs but lacks the authority to impose

fines. The imposition of a fine is exclusively a judicial act. Larue, 2014 IL App (4th) 120595,

- 26 - ¶ 56. Circuit clerks may collect judicially imposed fines, but they themselves may not impose

them. Only a judge may do that, in a sentencing hearing. People v. Swank, 344 Ill. App. 3d 738,

747-48 (2003). When a circuit clerk purports to impose " 'pecuniary punishment' " (Jones, 223

Ill. 2d at 581), i.e., a fine, and the case comes before us on appeal, we have an independent duty

to take corrective action (Thompson, 209 Ill. 2d at 27), although we expect appellate counsel to

diligently assist us in identifying problematic assessments (Chester, 2014 IL App (4th) 120564,

¶ 35).

¶ 88 Because any fines imposed by the circuit clerk are void from their inception

(Larue, 2014 IL App (4th) 120595, ¶ 56), the sentence itself could be void in that it lacks the

fines that statutory law requires. An unauthorized demand by the circuit clerk is not a bona fide

fine, and statutory law requires certain fines. Just as we have an independent duty to "act on

void orders of the circuit clerk" (People v. Gutierrez, 2012 IL 111590, ¶ 14; see Thompson, 209

Ill. 2d at 27), so do we have an independent duty to take action when, because of the lack of ef-

fective fines, the sentence is more lenient than statutory law allows (id.; White, 2011 IL 109616,

¶ 20; Arna, 168 Ill. 2d at 113; Montiel, 365 Ill. App. 3d at 605-06).

¶ 89 Pursuant to that duty, I will begin by considering if there are any bona fide fines,

fines the trial court imposed in its sentencing or resentencing of defendant (as distinct from fines

the circuit clerk purported to impose). "In ascertaining the terms of the sentence, a reviewing

court may examine the record as a whole [citation], since the oral pronouncement of sentence

and the written sentencing order entered on the same date can be viewed as one transaction."

People v. Thurston, 255 Ill. App. 3d 512, 514-15 (1994); see also People v. Moore, 301 Ill. App.

3d 728, 735 (1998) (in the case of a conflict between the oral pronouncement of the sentence and

the written sentencing order, the oral pronouncement controls).

- 27 - ¶ 90 The trial court imposed its original sentence in the negotiated guilty-plea hearing,

on April 27, 2010. In its oral pronouncement of the sentence, the court imposed no fine. In-

stead, the court referred vaguely to "monetary obligations due and owing."

¶ 91 The sentencing order of April 27, 2010, stated that defendant was to "pay all

fines, fees and costs authorized by statute," but the only fines for which the sentencing order

gave dollar amounts were "a fine in the amount of $300" and "a local anti-crime (Crime Stop-

pers) assessment fee of $10."

¶ 92 Although the sentencing order imposed a "Violent Crime Victims Assistance Act

fee" in an unspecified amount, this was not definite and certain enough to qualify as part of the

sentence. Research and application of statutory law (725 ILCS 240/10(c)(2) (West 2008)) and

case law (Williams, 2013 IL App (4th) 120313, ¶ 21) would have been necessary to determine

the amount of the fine. See People v. Dennison, 399 Ill. 484, 485-86 (1948) ("It is also a well-

established rule that a judgment in a criminal case should be so clear and definite that the mean-

ing may be found from the language used without the necessity of judicial construction to ascer-

tain its import."); People v. Willis, 235 Ill. App. 3d 1060, 1075 (1992) ("A sentence must be spe-

cific so it does not require additional construction.").

¶ 93 The docket entry for April 27, 2010, says "Fine + Cost Fee $1604.55," and then it

breaks down that amount into "Fine + Cost 519.55," $10 for "CRIME STOPPERS," $360 for

"PROBATION MONITORIN[G]," $0 FOR "STATE OFFENDER DNA," $450 for "PUBLIC

DEFENDER," $255 for "SEXUAL OFFENDER REG," and $10 for "ST POLICE SERVICES."

Apparently, the $0 acknowledges that defendant's DNA already was on file. It is unclear how

much of $519.55 is for fines and how much is for costs.

- 28 - ¶ 94 Thus, the only fines the trial court imposed in the original sentence were an un-

named fine in the amount of $300, $10 for "ST POLICE SERVICES" (730 ILCS 5/5-9-1.17

(West 2010)) (People v. Wynn, 2013 IL App (2d) 120575, ¶ 13 (classifying this assessment as a

fine)); $10 for "CRIME STOPPERS" (730 ILCS 5/5-6-3(b)(13) (West 2008)) (People v. Lit-

tlejohn, 338 Ill. App. 3d 281, 284 (2003) (classifying this assessment as a fine)); and $255 for

"SEXUAL OFFENDER REG" (730 ILCS 150/10 (West 2008) (classifying this assessment as a

fine)).

¶ 95 The remaining assessments the trial court imposed were fees. The appellate court

has held that a probation fee (730 ILCS 5/5-6-3(i) (West 2008)) is a true fee. White, 333 Ill.

App. 3d at 782; see Jones, 223 Ill. 2d at 585 (citing White with apparent approval on this point).

And obviously the public defender's fee compensates the government for an expense it incurred

in prosecuting defendant in that the representation of defendant by counsel was a condition of his

prosecution. See id. at 600.

¶ 96 Such was the original sentence. Thereafter, defendant violated probation, and the

trial court resentenced him on September 24, 2012. The court orally pronounced a sentence of

58 months' imprisonment, without mentioning any new fines.

¶ 97 Likewise, the written resentencing order said nothing about fines or any monetary

obligation other than that "the Defendant [was] ordered to pay costs of prosecution herein."

¶ 98 The docket entry of September 24, 2012, corresponding to the resentencing,

states: "Cost Only Fee $382" in addition to the sentence the court orally pronounced.

¶ 99 In sum, then, the trial court imposed only four fines in this case: the fine of $300,

$10 for "ST POLICE SERVICES," $10 for "CRIME STOPPERS," and $255 for "SEXUAL OF-

FENDER REG." (I realize the court did not include these fines in its pronouncement of the sen-

- 29 - tence. A defendant has a constitutional right to be present during the imposition of the sentence

(People v. Phillips, 242 Ill. 2d 189, 194 (2011)), and an argument could be made that if, after

pronouncing the sentence in the sentencing hearing, the court silently inserts an additional pun-

ishment into the written sentencing order or into a docket entry, the court violates that constitu-

tional right, because the defendant was not present, in any meaningful way, for the imposition of

that additional punishment. Defendant does not make that argument, and therefore the argument

is forfeited (see Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) ("Points not argued are waived ***."));

nevertheless, I did not want to appear to be oblivious of the potential problem.)

¶ 100 When I look, however, at the circuit clerk's printout of assessments in the record, I

find many additional assessments which are essentially fines.

¶ 101 1. "TRAFFIC/CRIMINAL SU"

¶ 102 The circuit clerk imposed on defendant an assessment in the amount of $80,

which she labeled "TRAFFIC/CRIMINAL SU." The letters "SU" apparently are an abbreviation

for "surcharge."

¶ 103 Case law identifies section 5-9-1(c) of the Unified Code of Corrections (730 ILCS

5/5-9-1(c) (West 2008)) as the statute creating the criminal surcharge. Larue, 2014 IL App (4th)

120595, ¶ 19. The statute provides as follows:

"(c) There shall be added to every fine imposed in sentenc-

ing for a criminal or traffic offense, except an offense relating to

parking or registration, or offense by a pedestrian, an additional

penalty of $10 for each $40, or fraction thereof, of fine imposed.

The additional penalty of $10 for each $40, or fraction thereof, of

fine imposed, if not otherwise assessed, shall also be added to eve-

- 30 - ry fine imposed upon a plea of guilty, stipulation of facts or find-

ings of guilty, resulting in a judgment of conviction, or order of

supervision in criminal, traffic, local ordinance, county ordinance,

and conservation cases (except parking, registration, or pedestrian

violations), or upon a sentence of probation without entry of judg-

ment under Section 10 of the Cannabis Control Act [(720 ILCS

550/10 (West 2008))], Section 410 of the Illinois Controlled Sub-

stances Act [(720 ILCS 570/410 (West 2008))], or Section 70 of

the Methamphetamine Control and Community Protection Act

[(720 ILCS 646/70 (West 2008))]." 730 ILCS 5/5-9-1(c) (West

2008).

¶ 104 As the statute plainly indicates, the criminal surcharge is a fine, "an additional

penalty." Id. A circuit clerk has no authority to impose fines. Swank, 344 Ill. App. 3d at 747-

48. Therefore, we should vacate the criminal surcharge that the circuit clerk imposed, and we

should direct the trial court, on remand, to impose a criminal surcharge in the amount of $10 for

each $40, or fraction thereof, of other fines imposed. See 730 ILCS 5/5-9-1(c) (West 2008).

¶ 105 2. "VICTIMS FUND—FINE"

¶ 106 The circuit clerk imposed an assessment in the amount of $32, which she labeled

as "VICTIMS FUND—FINE." We should vacate it because a circuit clerk may impose no fine.

See People v. Higgins, 2014 IL App (2d) 120888, ¶ 28.

¶ 107 Case law identifies section 10(b) of the Violent Crime Victims Assistance Act

(725 ILCS 240/10(b) (West 2008)) as the source of this type of fine. Rexroad, 2013 IL App

(4th) 110981, ¶ 55; People v. Fales, 247 Ill. App. 3d 681, 682 (1993). Section 10(b) provides:

- 31 - "On and after September 18, 1986, there shall be an additional penalty collected from each de-

fendant upon conviction of any felony *** of $4 for each $40, or fraction thereof, of fine im-

posed." 725 ILCS 240/10(b) (West 2008).

¶ 108 Thus, there are two mandatory fines, the "TRAFFIC/CRIMINAL SURCHARGE"

(730 ILCS 5/5-9-1(c) (West 2008)) and the "VICTIMS FUND—FINE" (the victims' assistance

fine) (725 ILCS 240/10(b) (West 2008)), the amounts of which depend on $40 increments, or

fractions thereof, of the other fines. We have held that the criminal surcharge is to be calculated

before the victims' assistance fine. Williams, 2013 IL App (4th) 120313, ¶ 21. The criminal sur-

charge is added to the total fines, and then the victims' assistance fine is calculated on the basis

of the new total. Id. We should direct the trial court, on remand, to calculate and impose a fine

under section 10(b) of the Violent Crime Victims Assistance Act (725 ILCS 240/10(b) (West

2008)).

¶ 109 3. A Fine To Fund the Expungement of Juvenile Records, Divided Between "ST POLICE SERVICES," "CLERK OP & ADMIN FU," and "STATES ATTORNEY"

¶ 110 Section 5-9-1.17 of the Unified Code of Corrections (730 ILCS 5/5-9-1.17 (West

2010)) provides as follows:

"§ 5-9-1.17. Additional fine to fund expungement of juve-

nile records.

(a) There shall be added to every penalty imposed in sen-

tencing for a criminal offense an additional fine of $30 to be im-

posed upon a plea of guilty or finding of guilty resulting in a

judgment of conviction.

- 32 - (b) Ten dollars of each such additional fine shall be remit-

ted to the State Treasurer for deposit into the State Police Services

Fund to be used to implement the expungement of juvenile records

as provided in Section 5-622 of the Juvenile Court Act of 1987

[(705 ILCS 405/5-622 (West 2010))], $10 shall be paid to the

State's Attorney's Office that prosecuted the criminal offense, and

$10 shall be retained by the Circuit Clerk for administrative costs

associated with the expungement of juvenile records and shall be

deposited into the Circuit Court Clerk Operation and Administra-

tive Fund."

¶ 111 Apparently under section 5-9-1.17(b) (730 ILCS 5/5-9-1.17(b) (West 2010)), the

circuit clerk imposed a fine of $10, which it designated for "ST POLICE SERVICES," and the

circuit clerk included that fine in her printout. Additionally, the circuit clerk imposed an assess-

ment of $10 labeled "CLERK OP & ADMIN FU" and two assessments of $40 labeled "STATES

ATTORNEY." The $10 for the circuit clerk operation and administrative fund is one of the fines

referenced in section 5-9-1.17(b) (730 ILCS 5/5-9-1.17(b) (West 2010)). Each of the assess-

ments of $40, labeled "STATES ATTORNEY," apparently consists of a fee of $30 under section

4-2002(a) of the Counties Code (55 ILCS 5/4-2002(a) (West 2008)) plus a fine of $10 under sec-

tion 5-9-1.17(b) of the Unified Code of Corrections (730 ILCS 5/5-9-1.17(b) (West 2010)) for

"the State's Attorney's Office that prosecuted the offense."

¶ 112 The problem is that not only did the circuit clerk, instead of a judge, impose all

but $10 of these fines (see Larue, 2014 IL App (4th) 120595, ¶ 56), but section 5-9-1.17 did not

go into effect until January 1, 2010 (Pub. Act 96-707, § 15 (eff. Jan. 1, 2010)). Defendant com-

- 33 - mitted his offense on October 5, 2009. Imposing upon him a fine that did not go into effect until

after his commission of the offense violates ex post facto principles. See People v. Dalton, 406

Ill. App. 3d 158, 164 (2010).

¶ 113 Therefore, we should vacate the fine of $10 that the trial court imposed for "ST

POLICE SERVICES." Also, referring to the circuit clerk's printout, we should vacate the fine of

$10 for "ST POLICE SERVICES" and the fine of $10 for "CLERK OP & ADMIN FU," and we

should reduce the assessments of $40, labeled "STATES ATTORNEY," to assessments of $30.

¶ 114 4. "VICTIMS FUND—NO FINE"

¶ 115 The circuit clerk imposed an assessment of $20 labeled "VICTIMS FUND—NO

FINE." Apparently, the circuit clerk intended this to be a fine pursuant to section 10(c)(2) of the

Violent Crime Victims Assistance Act (725 ILCS 240/10(c)(2) (West 2008)), which provides:

"(c) When any person is convicted in Illinois on or after

August 28, 1986, of an offense listed below, or placed on supervi-

sion for such an offense on or after September 18, 1986, and no

other fine is imposed, the following penalty shall be collected by

the Circuit Court Clerk:

***

(2) $20, for any other felony or misdemean-

or ***." (Emphasis added.)

There are two problems with this fine: (1) the circuit clerk imposed it (see Larue, 2014 IL App

(4th) 120595, ¶ 56), and (2) this fine should be imposed only when no other fine is imposed (725

ILCS 240/10(c)(2) (West 2008)). Other fines have to be imposed in this case. Therefore, we

should vacate the fine of $20 labeled "VICTIMS FUND—NO FINE."

- 34 - ¶ 116 5. "ST POLICE OPERATION"

¶ 117 The circuit clerk imposed an assessment of $10 labeled "ST POLICE OPERA-

TION" (not to be confused with "ST POLICE SERVICES"). Case law identifies this assessment

as a fine pursuant to section 27.3a(1.5) of the Clerks Act (705 ILCS 105/27.3a(1.5) (West 2010)

(as amended by Pub. Act 96-1029, § 6 (eff. July 13, 2010)). People v. Millsap, 2012 IL App

(4th) 110668, ¶ 31. That section provides as follows:

"1.5. Starting on the effective date of this amendatory Act

of the 96th General Assembly, a clerk of the circuit court in any

county that imposes a fee pursuant to subsection 1 of this Section

[(the automation fee)], shall charge and collect an additional fee in

an amount equal to the amount of the fee imposed pursuant to sub-

section 1 of this Section. This additional fee shall be paid by the

defendant in any felony, traffic, misdemeanor, local ordinance, or

conservation case upon a judgment of guilty or grant of supervi-

sion." 705 ILCS 105/27.3a(1.5) (West 2010).

Subsection (5) of section 27.3a of the Clerks Act (705 ILCS 105/27.3a(5) (West 2010)) in turn

requires the clerk to remit this additional assessment to the State Treasurer for deposit into the

State Police Operations Assistance Fund.

¶ 118 There are two problems with this fine: (1) circuit clerks cannot impose fines (see

Larue, 2014 IL App (4th) 120595, ¶ 56), and (2) the statute creating this fine did not exist on Oc-

tober 5, 2009, when defendant committed the offense of unlawful failure to register as a sex of-

fender (see Pub. Act 96-1029, § 6 (eff. July 13, 2010) (adding subsections 1.5 and 5 to section

- 35 - 27.3a (705 ILCS 105/27.3a (West 2010))) (see Dalton, 406 Ill. App. 3d at 164). Therefore, we

should vacate the fine of $10 labeled "ST POLICE OPERATION."

¶ 119 6. The Unnamed Fine of $300

¶ 120 Apparently, if the trial court had its preference, it would not pile on defendant as

many fines as the legislature requires, but, rather, the court would fine defendant in a lesser

amount—as in fact it did. In an effort to be consistent with that apparent preference (to the ex-

tent the law allows), we should vacate the unnamed fine of $300 while remanding the case with

directions to impose the statutorily mandated fines. If the court saw fit to do so, it could reim-

pose the fine of $300 on remand.

¶ 121 7. "DOCUMENT STORAGE"

¶ 122 The circuit clerk imposed two assessments in the amount of $5 labeled "DOCU-

MENT STORAGE." The statutory authority for such an assessment is section 27.3c of the

Clerks Act (705 ILCS 105/27.3c(a) (West 2008)), a section with the heading "Document storage

system." The relevant subsections provide as follows:

"(a) The expense of establishing and maintaining a docu-

ment storage system in the offices of the circuit court clerks in the

several counties of this State shall be borne by the county. To de-

fray the expense in any county that elects to establish a document

storage system and convert the records of the circuit court clerk to

electronic or micrographic storage, the county board may require

the clerk of the circuit court in its county to collect a court docu-

ment fee of not less than $1 nor more than $15, to be charged and

collected by the clerk of the court. The fee shall be paid at the time

- 36 - of filing the first pleading, paper, or other appearance filed by each

party in all civil cases or by the defendant in any felony, misde-

meanor, traffic, ordinance, or conservation matter on a judgment of

guilty or grant of supervision, provided that the document storage

system is in place or has been authorized by the county board and

further that no additional fee shall be required if more than one

party is presented in a single pleading, paper, or other appearance.

The fee shall be collected in the manner in which all other fees or

costs are collected.

(b) Each clerk shall commence charges and collections of a

court document fee upon receipt of written notice from the chair-

man of the county board together with a certified copy of the

board's resolution, which the clerk shall file of record in his or her

office.

(c) Court document fees shall be in addition to other fees

and charges of the clerk, shall be assessable as costs, and may be

waived only if the judge specifically provides for the waiver of the

court document storage fee. The fees shall be remitted monthly by

the clerk to the county treasurer, to be retained by the treasurer in a

special fund designated as the Court Document Storage Fund. The

fund shall be audited by the county auditor, and the board shall

make expenditures from the fund in payment of any costs relative

to the storage of court records, including hardware, software, re-

- 37 - search and development costs, and related personnel, provided that

the expenditure is approved by the clerk of the circuit court." 705

ILCS 105/27.3c(a) to (c) (West 2008).

¶ 123 The Champaign County board has passed a resolution directing the circuit clerk to

collect a document fee in the amount of $5 "to defray the expense of the document storage sys-

tem and to convert the records of the Circuit Clerk to electronic storage." Champaign County

Board Resolution No. 3477, Resolution Authorizing the Circuit Clerk's Document Storage Fee

(adopted Aug. 16, 1994), available at http://champaigncountyclerk.com/county_board/

resolutions/r03001_04000/r03477.pdf.

¶ 124 In previous decisions, the appellate court has regarded the document storage as-

sessment as a true fee. People v. Martino, 2012 IL App (2d) 101244, ¶ 30; People v. Tolliver,

363 Ill. App. 3d 94, 97 (2006). In light of the supreme court's decision in Graves, however, we

should rethink how best to describe the function of the document storage assessment. Does this

assessment really "seek[] to compensate the state for [a cost] incurred as the result of prosecuting

the defendant"? Graves, 235 Ill. 2d at 250. Or would it be more accurate to say this assessment

"further[s] the state's interest in financing the court system"? Id. at 252.

¶ 125 The court system has several components, e.g., recordkeeping, security, adjudica-

tion, physical maintenance of the courthouse. No significant distinction can be made between

financing the court system and financing a component of the court system. The document stor-

age assessment is intended to finance the record-keeping component of the court system. There-

fore, despite the statutory designation of the document storage assessment as a "cost" (705 ILCS

105/27.3c(c) (West 2008))—a designation that is relevant, though not definitive (see Graves, 235

Ill. 2d at 251; Jones, 223 Ill. 2d at 583)—this assessment is essentially a fine. See id.

- 38 - ¶ 126 Granted, a counterargument could be made that maintaining the judicial records in

this particular case was not free; doing so increased the county's financial burden to some extent.

Feeding the pages through the scanner put wear and tear on the scanner, hastening the day when

it eventually must be replaced. Defendant's file took up memory space in the computer, has-

tening the day when the county must buy additional hardware. The more criminal cases the

county has, the more recordkeeping personnel it must hire.

¶ 127 All this might be true. Nevertheless, we must not be distracted from the germane

question: Does this assessment defray a cost of the prosecution, or does it more generally defray

a cost of the court system? Document storage is a neutral, ministerial activity. There is nothing

distinctively prosecutorial about it.

¶ 128 Instead of reimbursing a cost of the prosecution, the document storage assessment

finances the document storage system as a whole and finances the conversion of all records to

electronic storage, not just the records in defendant's case. See also 705 ILCS 105/27.3c(a)

(West 2008). The assessment is to be deposited into a special fund, and "the board shall make

expenditures from the fund in payment of any costs relative to the storage of court records, in-

cluding hardware, software, research and development costs, and related personnel, provided that

the expenditure is approved by the clerk of the circuit court." (Emphases added.) 705 ILCS

105/27.3c(c) (West 2008). In short, the costs to which the assessment will be applied are not

limited to those the state "incurred as the result of prosecuting the defendant." Graves, 235 Ill.

2d at 250.

¶ 129 Thus, the document storage assessment is a fine. Accordingly, we should vacate

the two document storage fines of $5 imposed by the circuit clerk, and we should direct the trial

- 39 - court, on remand, to impose only one document storage fine in the amount of $5. See Larue,

2014 IL App (4th) 120595, ¶ 62.

¶ 130 8. "AUTOMATION"

¶ 131 The circuit clerk imposed two assessments in the amount of $10 labeled "AU-

TOMATION." The statutory authority for the automation assessment is section 27.3a(1) of the

Clerks Act (705 ILCS 105/27.3a(1) (West 2008)), which provides as follows:

"1. The expense of establishing and maintaining automated

record keeping systems in the offices of the clerks of the circuit

court shall be borne by the county. To defray such expense in any

county having established such an automated system or which

elects to establish such a system, the county board may require the

clerk of the circuit court in their county to charge and collect a

court automation fee of not less than $1 nor more than $15 to be

charged and collected by the clerk of the court. Such fee shall be

paid at the time of filing the first pleading, paper or other appear-

ance filed by each party in all civil cases or by the defendant in any

felony, traffic, misdemeanor, municipal ordinance, or conservation

case upon a judgment of guilty or grant of supervision, provided

that the record keeping system which processes the case category

for which the fee is charged is automated or has been approved for

automation by the county board, and provided further that no addi-

tional fee shall be required if more than one party is presented in a

- 40 - single pleading, paper or other appearance. Such fee shall be col-

lected in the manner in which all other fees or costs are collected."

¶ 132 The automation assessment does not "seek[] to compensate the state for any costs

incurred as the result of prosecuting the defendant." Graves, 235 Ill. 2d at 250. More accurately,

it "financ[es]" a component of "the court system" (id. at 252), namely, the "automated record[-]

keeping system[]" (705 ILCS 105/27.3a(1) (West 2008)). The automated record-keeping system

in Champaign County did not "result" from the prosecution of defendant, the way a witness fee,

for example, might have resulted from his prosecution. Graves, 235 Ill. 2d at 250. The automa-

tion assessment does not "defray" an expense specifically resulting from his prosecution; rather,

it "defray[s]" "[t]he expense of establishing and maintaining [the] automated record[-]keeping

system[]" as a whole. 705 ILCS 105/27.3a(1) (West 2008). Therefore, even though section

27.3a(1) calls the automation assessment a "fee," it essentially is a fine (see Graves, 235 Ill. 2d at

251; Jones, 223 Ill. 2d at 583), which the circuit clerk lacked the power to impose (see Larue,

2014 IL App (4th) 120595, ¶ 56). But see id. ¶ 64 (characterizing this assessment as a fee).

¶ 133 Consequently, we should vacate the two assessments in the amount of $10 labeled

"AUTOMATION," and we should direct the trial court, on remand, to impose only one automa-

tion fine. See id.

¶ 134 9. "STATES ATTORNEY AUT"

¶ 135 The circuit clerk imposed an assessment of $2 labeled "STATES ATTORNEY

AUT." Evidently, "AUT" is an abbreviation for "automation." The relevant statutory authority

is section 4-2002(a) of the Counties Code (55 ILCS 5/4-2002(a) (West 2012)), which provides as

follows:

- 41 - "State's attorneys shall be entitled to a $2 fee to be paid by

the defendant on a judgment of guilty or a grant of supervision for

a violation of any provision of the Illinois Vehicle Code or any fel-

ony, misdemeanor, or petty offense to discharge the expenses of

the State's Attorney's office for establishing and maintaining auto-

mated record keeping systems. The fee shall be remitted monthly

to the county treasurer, to be deposited by him or her into a special

fund designated as the State's Attorney Records Automation Fund.

Expenditures from this fund may be made by the State's Attorney

for hardware, software, research, and development costs and per-

sonnel related thereto."

¶ 136 This assessment does not "seek[] to compensate the state for any costs incurred as

the result of prosecuting the defendant." Graves, 235 Ill. 2d at 250. Instead, more generally, it

helps the State's Attorney meet the expenses of "hardware, software, research, and development

costs and personnel related thereto." 55 ILCS 5/4-2002(a) (West 2012). Even though the State's

Attorney probably used "hardware," "software," and "personnel related thereto" in the prosecu-

tion of defendant, the State's Attorney did not incur the expense of those items specifically and

exclusively as a result of prosecuting defendant. The computers were used, and will continue to

be used, for additional purposes, not just prosecuting him. The record contains no evidence that

prosecuting the defendant put $2 of wear and tear on the State's Attorney's computers. Nor does

the record contain any evidence that the prosecution of defendant caused the State's Attorney to

incur technology-related "research[] and development costs." Id.

- 42 - ¶ 137 Instead of saying the State's Attorney's automation assessment reimburses the

state for an expense resulting from the prosecution of defendant, it would be more accurate to

say this assessment helps to finance the technological component of the State's Attorney's office.

To paraphrase Graves, it is because the State's Attorney's automation assessment in no way

compensates the state for the cost of prosecuting defendant that it is a fine, and not a fee.

Graves, 235 Ill. 2d at 252. Therefore, even though section 4-2002(a) calls the State's Attorney's

automation assessment a "fee," it essentially is a fine (see id. at 251; Jones, 223 Ill. 2d at 583),

which the circuit clerk lacked the power to impose (see Larue, 2014 IL App (4th) 120595, ¶ 56).

¶ 138 Not only should we vacate the fine of $2 labeled "STATES ATTORNEY AUT,"

but we should alert the trial court to the impermissibility of the fine in this case. The State's At-

torney's automation fine did not exist on October 5, 2009, when defendant committed his offense

of failure to register as a sex offender. The fine did not go into effect until June 1, 2012. Pub.

Act 97-673, § 5 (eff. June 1, 2012). Imposing this fine upon him would subject him to an ex post

facto punishment. See Dalton, 406 Ill. App. 3d at 164.

¶ 139 10. "CIRCUIT CLERK FEE"

¶ 140 The circuit clerk imposed two assessments in the amount of $100 apiece labeled

"CIRCUIT CLERK FEE." The statutory authority for such an assessment is section

27.1a(w)(1)(A) of the Clerks Act (705 ILCS 105/27.1a(w)(1)(A) (West 2008)). Sections

27.1(w)(1)(A) to (E) (705 ILCS 105/27.1a(w)(1)(A) to (E) (West 2008)) provide as follows:

"(w) Criminal and Quasi-Criminal Costs and Fees.

(1) The clerk shall be entitled to costs in all

criminal and quasi-criminal cases from each person

- 43 - convicted or sentenced to supervision therein as fol-

lows:

(A) Felony complaints, a

minimum of $40 and a maximum of

$100.

(B) Misdemeanor complaints,

a minimum of $25 and a maximum

of $75.

(C) Business offense com-

plaints, a minimum of $25 and a

maximum of $75.

(D) Petty offense complaints,

(E) Minor traffic or ordinance

violations, $10."

¶ 141 An argument could be made that this ascending schedule of assessments intends

to recoup clerical expenses. Obviously, compiling and maintaining the record in defendant's

criminal case cost some amount of money. It was necessary to make docket entries and file pa-

pers; and labor and materials are not free.

¶ 142 Because the circuit clerk, however, prosecutes no one and has no prosecutorial

function, it is unclear how the cost of those activities by the circuit clerk could be considered a

cost "incurred in prosecuting the defendant." Jones, 223 Ill. 2d at 582. The circuit clerk is not a

- 44 - prevailing party. Rather, the circuit clerk is a neutral ministerial officer of the court (People ex

rel. Pardridge v. Windes, 275 Ill. 108, 113 (1916)), aligned with neither the prosecution nor the

defense. "[T]he writing of the record is a ministerial act," not a prosecutorial act. Id.

¶ 143 Even if it were possible for a circuit clerk, as a nonparty, to incur expenses of

prosecution, the record appears to contain no evidence that any particular thing the circuit clerk

did in defendant's case, or any combination of things she did in his case, cost precisely $100. In

reality, $100 is a rather arbitrary figure, the purpose of which is to help finance the circuit clerk's

mission as a whole rather than to reimburse the circuit clerk for any cost resulting specifically

from defendant's prosecution. The graduated assessments in subsections (1)(A) to (1)(E) (705

ILCS 105/27.1a(w)(1)(A) to (E) (West 2008)) make no sense as fees. One cannot reasonably

assume that every felony case is inherently more expensive for the circuit clerk than every mis-

demeanor case and that every misdemeanor case is inherently more expensive than every ordi-

nance violation case.

¶ 144 Now, it likely is true that, by and large, felony cases are more expensive to prose-

cute than misdemeanor cases. But that qualifier, "by and large," is inconsistent with recouping a

known, determinate expense in a particular prosecution. The schedule of assessments in section

27.1a(w)(1) (705 ILCS 105/27.1a(w)(1) (West 2008)), instead of reimbursing an incurred cost in

a particular prosecution, intends to apply a rough and ready sense of fairness in distributing the

burden of financing the circuit clerk's office. Felony cases tend to require more labor and re-

sources from the circuit clerk's office than other cases, and therefore, when distributing the bur-

den of financing the circuit clerk's office, the legislature believes it is only fair to lay the heaviest

end of the burden on felons, charging them $100. That is not quite the same as saying the circuit

clerk incurred an expense of $100 from any particular felony case. The intent is to finance the

- 45 - circuit clerk's office in an approximately equitable way, not to recoup the cost of each individual

felony prosecution.

¶ 145 As the Second District observed regarding a similar assessment:

"The assessment is not explicitly tied to, and bears no inherent re-

lationship to, the actual expenses involved in prosecuting the de-

fendant ***. *** [T]hat the amount of the assessment is correlated

directly with the severity of the offense shows that the assessment

is punitive and not compensatory. A felony is not necessarily

twice as expensive to prosecute as a misdemeanor, but it is inher-

ently more serious in the eyes of the law." (Emphasis in original.)

People v. Smith, 2013 IL App (2d) 120691, ¶ 21.

¶ 146 The so-called "CIRCUIT CLERK FEE," "exacted only after conviction for a

criminal offense" (Graves, 235 Ill. 2d at 252), is in reality a fine, despite the statutory label of a

"fee" (see id. at 251; Jones, 223 Ill. 2d at 583). But see Larue, 2014 IL App (4th) 120595, ¶ 66

(characterizing this assessment as a fee). The assessment of $100 comes from a graduated

schedule of fines having a dual purpose of punishing the offender and "financing the court sys-

tem." Graves, 235 Ill. 2d at 252.

¶ 147 Because a circuit clerk may not impose fines, we should vacate the two assess-

ments in the amount of $100 apiece labeled "CIRCUIT CLERK FEE," and we should direct the

trial court, on remand, to impose only one such fine pursuant to section 27.1a(w)(1)(A) of the

Clerks Act (705 ILCS 105/27.1a(w)(1)(A) (West 2008)). See Larue, 2014 IL App (4th) 120595,

¶ 66.

¶ 148 11. "COURT SECURITY"

- 46 - ¶ 149 The circuit clerk imposed two assessments of $25 labeled "COURT SECURITY."

See 55 ILCS 5/5-1103 (West 2008). Section 5-1103 of the Counties Code provides as follows:

"§ 5-1103. Court services fee. A county board may enact

by ordinance or resolution a court services fee dedicated to defray-

ing court security expenses incurred by the sheriff in providing

court services or for any other court services deemed necessary by

the sheriff to provide for court security, including without limita-

tion court services provided pursuant to Section 3-6023 [(55 ILCS

5/3-6023 (West 2008))], as now or hereafter amended. Such fee

shall be paid in civil cases by each party at the time of filing the

first pleading, paper or other appearance; provided that no addi-

tional fee shall be required if more than one party is represented in

a single pleading, paper or other appearance. In criminal, local or-

dinance, county ordinance, traffic and conservation cases, such fee

shall be assessed against the defendant upon a plea of guilty, stipu-

lation of facts or findings of guilty, resulting in a judgment of con-

viction ***. In setting such fee, the county board may impose,

with the concurrence of the Chief Judge of the judicial circuit in

which the county is located by administrative order entered by the

Chief Judge, differential rates for the various types or categories of

criminal and civil cases, but the maximum rate shall not exceed

$25. All proceeds from this fee must be used to defray court secu-

rity expenses incurred by the sheriff in providing court services.

- 47 - *** The fees shall be collected in the manner in which all other

court fees or costs are collected and shall be deposited into the

county general fund for payment solely of costs incurred by the

sheriff in providing court security or for any other court services

deemed necessary by the sheriff to provide for court security." 55

ILCS 5/5-1103 (West 2008).

¶ 150 The Champaign County board has adopted a resolution authorizing the collection

of a fee in the amount of $25 for court security. Champaign County Board Resolution No. 4723,

Resolution Amending the Court Services Fee for Court Security (adopted Sept. 18, 2003), avail-

able at http://champaigncountyclerk.com/county_board/resolutions/r04001_05000/r04723.pdf.

¶ 151 Court security is a neutral service, benefitting everyone in the courthouse, not

merely the participants in defendant's criminal case. The security guards are not aligned with the

prosecution any more than they are aligned with the defense. The $25 from defendant is intend-

ed to fund security not only in his case but also in the civil case down the hall. This assessment

is just another way of financing the court system.

¶ 152 Because the court security assessment lacks the "central characteristic" of a fee—

namely, the intent to "compensate the state for [a] cost[] incurred as the result of prosecuting the

defendant" (emphasis in original) (Jones, 223 Ill. 2d at 600)—I conclude it is essentially a fine,

despite the statutory label of a fee (Graves, 235 Ill. 2d at 251; Jones, 223 Ill. 2d at 583). A cir-

cuit clerk lacks authority to impose fines. Therefore, we should vacate the two assessments of

$25 labeled "COURT SECURITY," and we should direct the trial court, on remand, to impose

only one court security fine of $25, considering that there was only one "plea of guilty *** re-

- 48 - sulting in a judgment of conviction." 55 ILCS 5/5-1103 (West 2012); see Larue, 2014 IL App

(4th) 120595, ¶ 68.

¶ 153 12. "COURT FINANCE FEE"

¶ 154 The circuit clerk imposed two assessments in the amount of $50 apiece labeled

"COURT FINANCE FEE." Section 5-1101(c)(1) of the Counties Code (55 ILCS 5/5-1101(c)(1)

(West 2008)) provides as follows:

"§ 5-1101. Additional fees to finance court system. A

county board may enact by ordinance or resolution the following

fees:

(c) A fee to be paid by the defendant on a

judgment of guilty or a grant of supervision ***, as

(1) for a felony, $50[.]"

¶ 155 The Champaign County board has passed a resolution authorizing the collection

of a court finance fee. Champaign County Board Resolution No. 3738, A Resolution Imple-

menting the Court System Financing Fee (adopted Sept. 17, 1996), available at

http://champaigncountyclerk.com/county_board/resolutions/r03001_04000/r03738.pdf.

¶ 156 The supreme court has declared the court finance assessment to be a "monetary

penalt[y]," i.e., a fine. Graves, 235 Ill. 2d at 253; see also People v. Ackerman, 2014 IL App

(3d) 120585, ¶ 30; Smith, 2013 IL App (2d) 120691, ¶ 21. The circuit clerk lacks the authority to

impose fines, and therefore we should vacate two assessments in the amount of $50 apiece la-

beled "COURT FINANCE FEE." Because the fee is to be paid "on a judgment of guilty *** for

- 49 - a felony" (55 ILCS 5/5-1101(c)(1) (West 2008)) and because defendant was adjudged guilty of

only one felony in this case, he should have to pay only one court finance fine. We should direct

the trial court, on remand, to impose one court finance fine in the amount of $50.

¶ 157 Not only should we do our duty by directing the trial court to impose all these

statutorily mandated fines (see Gutierrez, 2012 IL 111590, ¶ 14; see Thompson, 209 Ill. 2d at

27), but we should give defendant an opportunity to argue the invalidity of his guilty plea. If he

regards the additional fines as significant enough that he would want to withdraw his guilty plea,

we should allow him to make an argument for such relief in a petition for rehearing (Ill. S. Ct. R.

367 (eff. Dec. 29, 2009)). See People v. Whitfield, 217 Ill. 2d 177, 202 (2005); People v. Strom,

2012 IL App (3d) 100198, ¶ 11.

¶ 158 Finally, I commiserate with the trial court. It is unfortunate that the legislature is

apparently incapable of saying no whenever someone proposes heaping a new "fee" or "cost" on

criminal defendants, who typically are impoverished. The legislature's purported goal of financ-

ing the court system on the backs of guilty defendants is actually undermined by the expense to

the state of properly ascertaining the imposition of the dizzying array of fees, fines, and costs.

This elaborate partial dissent illustrates the absurdity of the task. Sentencing a defendant in a

criminal case is now comparable to filling out a complicated income tax form with multiple

schedules. A sentencing judge almost needs the assistance of a certified public accountant.

There is little chance that the long list of assessments, accruing interest and late penalties, will

ever be paid. The only suggestion I can make to beleaguered sentencing judges is that they insist

the prosecutor arrive at the sentencing hearing with the fines correctly computed.

- 50 -