People v. Fenner

2025 IL App (1st) 232348-U

• Court: Appellate Court of Illinois
• Decided: June 3, 2025
• Docket: 1-23-2348
• Status: Unpublished

Opinion

2025 IL App (1st) 232348-U

SECOND DIVISION June 3, 2025

No. 1-23-2348

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 18CR15692 ) MICHAEL FENNER, ) Honorable ) Michael J. Kane, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________

JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Van Tine and Justice Ellis concurred in the judgment.

ORDER

¶1 Held: The trial court erred in denying defendant’s motion to correct fines pursuant to Supreme Court 472. We vacate the $2500 fine imposed by the trial court and remand for the court to consider defendant’s financial resources and future ability to pay. Additionally, we remand for the trial court to determine the amount, if any, of per diem credit defendant is entitled to offset any fine imposed.

¶2 Defendant Michael Fenner appeals the trial court’s denial of his motion to correct fees

and fines filed pursuant to Supreme Court Rule 472 (eff. May 17, 2019). Specifically, defendant

contends that the trial court improperly imposed a $2500 fine without considering his financial

resources and future ability to pay. No. 1-23-2348

¶3 In February 2023, defendant was convicted by a jury of two counts of resisting or

obstructing a peace officer proximately causing injury and subsequently was sentenced to 18

months of probation. Defendant’s convictions arose after he went to a car lot to complain about a

defective vehicle and an altercation with the owner allegedly occurred. Officers subsequently

came to defendant’s residence to advise him not to return to the car lot. After the officers

perceived defendant to have made a threat toward the car lot, they attempted to place him under

arrest, but defendant resisted. During a struggle to effectuate the arrest, two officers were injured.

We affirmed defendant’s conviction and sentence on direct appeal. See People v. Fenner, 2024

IL App (1st) 230645-U. We detail these facts only as necessary for the issues raised in this

appeal. A full discussion of the facts is presented in defendant’s direct appeal. See id.

¶4 At defendant’s April 2023 sentencing hearing, defendant argued in mitigation about

defendant’s family, employment, and finances. Defendant and his wife owned a house, which

they had been renovating while the case was pending. At the time of the offense, defendant was

employed as a forklift operator, but he lost that job during his initial pretrial incarceration. He

was in custody for 65 days due to an initial order of no bail. The bail order was subsequently

changed and a monetary bond of $5,000 was set. Since his release, defendant had been working

as a delivery driver. Defendant’s presentence investigative report (PSI) indicated that defendant

was an independent contractor with Door Dash, Uber Eats, and Grub Hub. He worked 20 hours

per week and earned $80-$500 per week. In allocution, defendant told the court that he has “a

family to take care of” and “it’s just been tough fighting the case for five years. I mean, I had to

give up a lot financially and it changed my life.”

¶5 Before imposing the sentence, the trial court acknowledged that defendant was trying to

support his family and lived “in a nice neighborhood with a nice home.” The trial judge stated

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that he had considered the trial evidence, the presentence report, history, character and attitude of

the defendant, arguments, defendant’s statement of allocution, and the arguments in aggravation

and mitigation. Following those remarks, the judge sentenced defendant to 18 months of

probation, a $2500 fine, and five days of the Sheriff’s Work Alternative Program (SWAP),

which was considered served based on defendant’s pretrial time in custody. The court ordered

that the $2500 fine be deducted from defendant’s $5000 bond. Defendant filed a motion to

reconsider his sentence of 18 months’ probation, which the court denied.

¶6 In September 2023, while defendant’s direct appeal was pending, he filed a pro se motion

to correct the fines and fees order pursuant to Supreme Court Rule 472 (eff. May 17, 2019). He

argued that the trial court erred in imposing the $2500 fine without considering his financial

resources and future ability to pay. He asserted that he was indigent since losing his full time job

when he was arrested. Defendant attached the bond receipt which indicated that his brother paid

the $5000 bond. At a hearing on November 17, 2023, the trial court denied defendant’s motion,

finding it lacked jurisdiction because defendant failed to file this motion within 30 days of the

sentencing hearing.

¶7 This appeal followed.

¶8 The State initially argues that the trial court lacked jurisdiction to vacate defendant’s fine

because his motion was not a proper motion to correct a sentence under Supreme Court Rule

472. Specifically, because defendant was seeking to “undo a judgment” rather than correct an

error in the sentencing order, the trial court lacked jurisdiction. Further, the State contends that

the alleged error in the sentencing order cannot be corrected and was “merely an untimely

challenge to the sentence.” Defendant responds that his motion fell within the scope of Rule 472,

which vested the trial court, as well as this court, with jurisdiction to consider the merits.

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¶9 Generally, the trial court loses jurisdiction to hear a cause 30 days following the entry of

a final judgment. People v. Bailey, 2014 IL 115459, ¶ 8. However, Rule 472 provides that the

trial court retains jurisdiction to correct certain sentencing errors sua sponte or on the motion of

any party.

¶ 10 Supreme Court Rule 472 provides, in relevant part:

“(a) In criminal cases, the circuit court retains jurisdiction to correct the

following sentencing errors at any time following judgment and after notice to the

parties, including during the pendency of an appeal, on the court’s own motion, or

on motion of any party:

(1) Errors in the imposition or calculation of fines, fees,

assessments, or costs;

(2) Errors in the application of per diem credit against fines;

(3) Errors in the calculation of presentence custody credit; and

(4) Clerical errors in the written sentencing order or other part of

the record resulting in a discrepancy between the record and the actual judgment

of the court.

(b) Where a circuit court’s judgment pursuant to this rule is entered more

than 30 days after the final judgment, the judgment constitutes a final judgment

on a justiciable matter and is subject to appeal in accordance with Supreme Court

Rule 303.

(c) No appeal may be taken by a party from a judgment of conviction on

the ground of any sentencing error specified above unless such alleged error has

first been raised in the circuit court. When a post-judgment motion has been filed

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by a party pursuant to this rule, any claim of error not raised in that motion shall

be deemed forfeited.” Ill. S. Ct. R. 472 (eff. May 17, 2019).

¶ 11 When interpreting supreme court rules, we follow the same principles applicable to the

construction of statutes. Salem, 2016 IL 118693, ¶ 11. Our goal is to ascertain and give effect to

the drafters’ intention and the most reliable indicator of intent is the language used, which must

be given its plain and ordinary meaning. Id. The issue of jurisdiction is a question of law, which

we review de novo. People v. Salem, 2016 IL 118693, ¶ 11.

¶ 12 Under the plain language of Rule 472, a trial court retains jurisdiction to consider the

sentencing errors listed above. Ill. S. Ct. R. 472. As the supreme court observed, “Rule 472 was

enacted, in large part, to provide the trial court with jurisdiction to correct certain sentencing

errors in criminal cases at any time after judgment without requiring this court’s intervention

through a writ of mandamus.” (Emphasis added.) People v. Fukama-Kabika, 2023 IL 128824,

¶ 18. Contrary to the trial court’s finding, and to the extent that the State asserts here, there is no

30-day jurisdictional timeline indicated in the rule. Rather, motions pursuant to Rule 472 can be

filed “at any time.” Accordingly, defendant’s motion was timely filed and the trial court had

jurisdiction to consider his motion.

¶ 13 Further, defendant properly followed the requirements of Rule 472 to raise his claim. In

his motion, defendant asked the trial court to vacate its imposition of a $2500 fine because the

court erred by imposing the fine without considering his financial resources and future ability to

pay in accordance with section 5-9-1(d)(1) of the Unified Code of Corrections (the Code) (730

ILCS 5/5-9-1(d)(1) (West 2022)). This claim clearly falls within the first prong of Rule 472, as

an error in the imposition of a fine. See Ill. S. Ct. R. 472(a)(1).

¶ 14 We are unpersuaded by the State’s assertion that a motion for relief under Rule 472

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requires defendant “to show the type of clear entitlement to relief that is required in the

mandamus context.” No such requirement exists in the rule’s plain language. Id. Defendant

properly sought relief within one of the listed bases for the trial court to correct. Moreover, all of

the cases relied on by the State either predate Rule 472 or do not fall within the errors to be

corrected under the rule. See People v. Blancas, 2019 IL App (1st) 171127, 17 (the defendant’s

motion was an attempt to challenge his plea); People v. Hongo, 2024 IL App (1st) 232482, ¶ 1

(appealing the trial court’s denial of pretrial release); People v. Bailey, 2014 IL 115459

(predating the creation of Rule 472). The State’s jurisdiction argument is without merit and this

court has jurisdiction over defendant’s appeal.

¶ 15 Turning to the merits, defendant argues that the trial court erred in imposing the $2500

fine without considering his financial resources and future ability to pay as required under

section 5-9-1(d)(1) of the Code (730 ILCS 5/5-9-1(d)(1) (West 2022)). The State responds that

defendant’s claim is moot, forfeited, and otherwise lacks merit.

¶ 16 An issue is moot if no controversy exists or if events have occurred, which prevent the

reviewing court from granting effectual relief to the complaining party. In re Shelby R., 2013 IL

114994, ¶ 15. The State asserts that defendant’s claim is moot because the fine has been paid. It

relies on cases in which a fine was satisfied by a defendant’s per diem credit. See People v.

Harvey, 2018 IL 122325, ¶¶ 17-19; People v. Wilson, 2017 IL App (3d) 150165, ¶ 25. In Harvey,

2018 IL 122325, ¶ 18, the defendant conceded that his per diem credit satisfied his fines and the

issue was moot. Similarly, the reviewing court in Wilson found the defendant’s challenge to his

fines was moot because the fines had been “legally satisfied by the application of defendant’s $5-

per-day credit.” Wilson, 2017 IL App (3d) 150165, ¶ 25. There, the defendant received $1005 in

presentence credit which more than covered the $185 in fines. Id.

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¶ 17 However, both cases are readily distinguishable from the facts here. Defendant has

presented an actual controversy regarding whether the trial court failed to comply with section 5-

9-19(d)(1) in imposing the fine. This presents a different issue than the cases relied on by the

State since the fine was satisfied with money paid by defendant rather than per diem credit

earned while in pretrial detention. In fact, the bond slip indicated that defendant’s bond was paid

by his brother. In this case, an effectual remedy exists, i.e., defendant could have the money paid

for the fine refunded. Thus, defendant’s claim is not moot.

¶ 18 We also reject the State’s assertion that defendant has forfeited his claim by failing to

raise it at sentencing, in his motion to reconsider, and on direct appeal. This argument ignores the

plain language of Rule 472, which as discussed above, allows a party to file the motion “at any

time” and such motion is to be filed in the trial court before an appeal can be filed. Ill. S. Ct. R.

472(a), (c). Further, this court has consistently remanded any fines and fees issue raised for the

first time on appeal to the trial court for the defendant to file a motion under Rule 472.

See People v. Whittenburg, 2019 IL App (1st) 163267, ¶ 6 (we remanded to the trial court

pursuant to Rule 472(e) to allow defendant to file a motion “challenging the fees and fines

imposed as a part of his sentence”); People v. Sanders, 2019 IL App (1st) 160718, ¶ 53 (same);

People v. Johnson, 2019 IL App (1st) 161104, ¶ 34 (same); People v. Loggins, 2019 IL App (1st)

160482, ¶ 131 (same). Defendant filed his Rule 472 motion in accordance with the requirements

of the rule. Defendant’s claim is not forfeited.

¶ 19 According to defendant, his $2500 fine was imposed by the trial court without

consideration of his financial resources. Section 5-9-1(d)(1) provides that, “[i]n determining the

amount and method of payment of a fine, the court shall consider *** the financial resources and

future ability of the offender to pay the fine***.” 730 ILCS 5/5-9-1(d)(1) (West 2022). A

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certified statement of assets and liabilities, filed in November 2018, listed defendant’s gross

income as $1800 but his monthly living expenses were $2800.

¶ 20 At the sentencing hearing, defense counsel argued in mitigation that defendant lived at

the property with his wife, they owned the property and were doing home renovations while the

case was pending, he was employed as a forklift operator at the time of the offense but lost that

job due to his pretrial custody, and was then working as a delivery driver. During its ruling on

sentencing, the trial court observed, “You are trying to support your family and those are all

good things. Frankly, you live in a nice neighborhood with a nice home. I am familiar with that

neighborhood. I didn’t grow up far from there.” The court later imposed defendant’s sentence of

probation and fined defendant $2500. The court ordered that it was “taking the $2500 fine from

that bond slip.”

¶ 21 The supreme court has held that section 5-9-1(d)(1) requires the record to establish that

the court considered the financial resources and future ability of the offender to pay the

fine. People v. Maldonado, 109 Ill. 2d 319, 324 (1985). “A trial judge need not specifically state

that a defendant was determined to have the financial resources and ability to pay because such

finding is implicit in the imposition of a fine where the judge is aware of the facts that support

such a determination.” People v. Bishop, 354 Ill. App. 3d 549, 563 (2004). Generally, a sufficient

consideration of ability to pay may be established by the trial court’s discussion of a defendant’s

employment situation or when documents in the record establish the defendant’s employment or

financial situation. People v. Contursi, 2019 IL App (1st) 162894, ¶ 32. In Contursi, the

reviewing court vacated a $25,000 fine and remanded for the trial court to assess the defendant’s

ability to pay. The Contursi court found that the trial court’s consideration that the defendant had

a union job and lived in a condominium for several years before his offense did not adequately

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address his future ability to pay such a large fine after an eight-year prison sentence. Id.

¶ 22 Here, the record discloses that the trial court did not sufficiently consider defendant’s

financial resources and future ability to pay the $2500 fine. In its findings, the court generally

referred to defendant’s nice home in a nice neighborhood, but at the time the fine was imposed,

no mention was made of defendant’s financial situation, including defendant’s employment

status. Defense counsel’s argument, documents in the record, and defendant’s own statement in

allocution showed that his financial resources were limited after losing his primary job. The PSI

stated that defendant made between $80 to $500 a week as a delivery driver. Nevertheless, the

court imposed the $2500 fine and ordered it to be paid from defendant’s bond slip. Given this

record, the court’s general comments were not sufficient to establish that the court considered

defendant’s financial situation and future ability to pay. We vacate this fine and remand for the

court to consider defendant’s financial resources and ability to pay pursuant to section 5-9-

1(d)(1) of the Code.

¶ 23 Finally, defendant contends that the trial court erred by failing to award any per diem

credit for the time he was in custody prior to posting bond. He asserts that the credit could help

to offset the amount of any fine imposed on remand.

¶ 24 Section 114-10(a) of the Code of Criminal Procedure of 1963 (Criminal Code), in effect

while defendant was in custody, provides: “Any person incarcerated on a bailable offense who

does not supply bail and against whom a fine is levied on conviction of the offense shall be

allowed a credit of $5 for each day so incarcerated upon application of the defendant.” 725 ILCS

5/114-10(a) (West 2018). The supreme court has held that the award of this credit is mandatory,

cannot be waived, and can be raised at any time. People v. Caballero, 228 Ill. 2d 79, 83 (2008)

(citing People v. Woodward, 175 Ill. 2d 435, 457-58 (1997)). Defendant concedes that he did not

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raise this issue in his Rule 472 motion but relies on Caballero to ask this court to consider this

issue.

¶ 25 In Caballero, the supreme court considered the defendant’s claim for per diem credit

raised for the first time on the appeal from the dismissal of his postconviction petition. Id. at 82.

The appellate court had affirmed the dismissal of the defendant’s petition but found that he was

entitled to the per diem credit under section 114-10(a) of the Criminal Code. Id. The State argued

that the per diem credit involved a statutory right and was not cognizable in postconviction

proceedings. Id. at 83. While the Caballero court agreed with the State that a claim under section

110-14 was statutory and not cognizable under the Post-Conviction Hearing Act, the supreme

court further held that a statutory claim under section 114-10(a) may be considered as “an

‘application of the defendant’ made under the statute and may be raised at any time and at any

stage of court proceedings.” Id. at 88. “Accordingly, if, as in this case, the basis for granting the

application of the defendant is clear and available from the record, the appellate court may, in the

‘interests of an orderly administration of justice,’ grant the relief requested.” Id.

¶ 26 It is clear from the record that the trial court did not award any per diem credit to

defendant for the period he was held without bond, which he was entitled to under section 114-

10(a). While Caballero predated the creation of Rule 472, the award of per diem credit remains

mandatory under section 114-10(a). Rule 472(e) directs the reviewing court to remand any claim

regarding sentencing errors covered by this rule raised for the first time on appeal to the trial

court to allow the party to file a motion pursuant to the rule. Ill. S. Ct. R. 472(e) (eff. May 17,

2019). Having found the per diem claim has not been forfeited, we remand for the trial court to

determine the amount of per diem credit defendant is entitled.

¶ 27 Based on the foregoing reasons, we vacate the trial court’s imposition of the $2500 fine

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and remand for further proceedings consistent with this decision.

¶ 28 Vacated and remanded.