People v. Folks

Opinion

NO. 4-09-0579 Filed 12/28/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County JAMES E. FOLKS, ) No. 09CF05 Defendant-Appellant. ) ) Honorable ) James E. Souk, ) Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

In March 2009, defendant, James E. Folks, pleaded

guilty to unlawful use of a weapon by a felon (720 ILCS 5/24-

1.1(a) (West 2008)), and aggravated battery (720 ILCS 5/12-

4(b)(1) (West 2008)). The trial court accepted the plea and

sentenced defendant, in accordance with the plea agreement, to

nine years' imprisonment. The plea agreement had also provided

for the imposition of certain "court costs and fees," including

the $200 deoxyribonucleic-acid (DNA) analysis assessment (730

ILCS 5/5-4-3(j) (West 2008)) and a $20 Violent Crime Victims

Assistance Fund (VCVA) assessment (725 ILCS 240/10 (West 2008)).

Thereafter, the circuit clerk sent defendant notice of the fines and court costs imposed, which included a $10 drug-

court assessment (55 ILCS 5/5-1101(d-5) (West 2008)), a $15

children's-advocacy-center assessment (55 ILCS 5/5-1101(f-5)

(West 2008)) and the $20 VCVA assessment. The $200 DNA-analysis

assessment was not imposed because, according to a handwritten

notation on the notice by perhaps a court clerk, the assessment

was "waived since sample taken in 2004." The notice and the

docket entry indicating the filing of proof that a DNA sample was

"previously taken in 2004" are initialed by "TB."

Defendant filed a motion to withdraw the guilty plea

and vacate sentence. In July 2009, the trial court denied

defendant's motion.

Defendant appealed, asserting (1) defense counsel's

certificate failed to strictly comply with Supreme Court Rule

604(d) (210 Ill. 2d R. 604(d)); (2) defendant is entitled to

vacation of the drug-court and children's-advocacy-center assess-

ments because the circuit clerk lacked the authority to impose

those fines or, in the alternative, those fines must be offset by

the $5-per-day credit for time spent in presentencing custody;

and (3) the VCVA assessment must be reduced to $4 because the

amount imposed exceeded the amount permitted by statute.

We affirm as modified. Defense counsel strictly

- 2 - complied with Rule 604(d). On defendant's remaining issues, this

court (1) vacates the circuit clerk's assessment of fines and

imposes the $10 drug-court and $15 children's-advocacy-center

fines, which are offset by credit for the time defendant spent in

presentencing custody; (2) reimposes the $200 DNA-analysis

assessment, which is offset by credit for the time defendant

spent in presentencing custody; and (3) vacates the $20 VCVA

assessment and imposes a $24 VCVA assessment.

I. BACKGROUND

In January 2009, the grand jury returned a bill of

indictment charging defendant with unlawful use of a weapon by a

felon (count I) and aggravated battery (count II). On March 24,

2009, defendant pleaded guilty to both charges, and the trial

court accepted that plea.

As reflected by the transcript of the plea hearing and

documents contained in the record, defendant signed a written

plea agreement. In the agreement, defendant agreed to plead

guilty to both counts in exchange for which the trial court would

impose a sentence of nine years' imprisonment on count I and a

concurrent five-year term of imprisonment on count II. The plea

agreement reflected the court would impose "$-0- fine, plus court

- 3 - costs and fees as authorized by law, payable as follows: $20 VCVA

and $200 DNA." The agreement also reflected defendant was

entitled to credit for 83 days already served in custody. The

court admonished defendant at the hearing that in addition to his

sentence, "there are certain mandatory fines and court costs" and

those would include the $20 VCVA assessment and $200 DNA-analysis

assessment.

After accepting defendant's plea, the trial court

immediately proceeded to sentencing and sentenced "defendant in

accordance with his plea agreement." The sentencing judgment

entered does not reflect the assessments imposed, although it

does indicate that fines and costs were due within two years of

defendant's release from custody. The sentencing judgment also

reflects defendant's credit for time served from January 1, 2009,

to March 24, 2009, which totals 82 days.

The docket entry for the combined plea and sentencing

hearing contains preprinted language, apparently stamped into the

docket, on which someone, perhaps the trial judge, added hand-

written notations. The docket entry contains the preprinted

statement "Fines, fees and costs per Supp. Order." A handwritten

notation provides "20 VCVA and 200 DNA."

On March 25, 2009, the circuit clerk sent a "Notice to

- 4 - Party" to defendant, detailing the "fine and court costs" imposed

against defendant in connection with the case. That document is

not signed by the trial judge. According to the notice, the

various assessments imposed included the $10 drug-court assess-

ment and the $15 children's-advocacy-center assessment. The DNA-

analysis assessment was listed as ".00$" Next to the statutory

citation for the DNA assessment is a handwritten notation by

someone reading as follows: "waived since sample taken in 2004."

The notice also reflects a VCVA assessment of $20. The document

contains the initials "TB," as does a March 25, 2009, docket

entry notation providing as follows: "DNA sample previously taken

in 2004, proof filed."

Thereafter, defendant filed several pro se documents

seeking to withdraw his guilty plea, including one filed April

23, 2009. The motion raised no issues pertaining to fines or

assessments imposed.

At the July 10, 2009, hearing, the trial court essen-

tially treated defendant's April 2009 pleading as an amendment to

the earlier motions to withdraw guilty plea filed by defendant.

Defendant's attorney, a different assistant public defender than

the one who represented defendant during the plea hearing,

adopted defendant's April 23, 2009, motion.

- 5 - Defense counsel tendered to the trial court a Supreme

Court Rule 604(d) certificate. The certificate was entitled

"Attorney's Certification for Motion to Reconsider Sentence,"

although no motion to reconsider had been filed and the court was

hearing the motion to withdraw guilty plea.

In the certificate, defense counsel asserted he had (1)

personally consulted with defendant regarding "this motion"; (2)

reviewed the transcripts of the report of plea of guilty proceed-

ing and sentencing hearing, as well as police reports; (3)

examined the trial court file; and (4) elected to make no modifi-

cations to the motion. At the conclusion of the hearing, the

court denied the motion to withdraw guilty plea.

This appeal followed.

II. ANALYSIS

Defendant does not challenge the denial of the motion

to withdraw guilty plea on the merits. Instead, defendant

challenges the Rule 604(d) certificate and the various assess-

ments imposed.

A. Defense Counsel Strictly Complied With Rule 604(d)

Defendant first argues the case must be remanded

because his attorney failed to strictly comply with Supreme Court

Rule 604(d) (210 Ill. 2d R. 604(d)). Specifically, defendant

- 6 - argues the Rule 604(d) certificate was insufficient because it

was entitled "Attorney's Certification for Motion to Reconsider

Sentence" and, therefore, did not apply to the motion to withdraw

guilty plea. We disagree.

Supreme Court Rule 604(d) requires that counsel repre-

senting a defendant who has pleaded guilty must file in the trial

court a certificate stating the following:

"[T]he attorney has consulted with the defen-

dant either by mail or in person to ascertain

defendant's contentions of error in the sen-

tence or the entry of the plea of guilty, has

examined the trial court file and report of

proceedings of the plea of guilty, and has

made any amendments to the motion necessary

for adequate presentation of any defects in

those proceedings." 210 Ill. 2d R. 604(d).

The certificate requirement "insure[s] that counsel has reviewed

the defendant's claim and considered all relevant bases for the

motion to withdraw the guilty plea or to reconsider the sen-

tence." People v. Shirley, 181 Ill. 2d 359, 361, 692 N.E.2d

1189, 1191 (1998). Our review is de novo. People v. Grice, 371

Ill. App. 3d 813, 815, 867 N.E.2d 1143, 1145 (2007).

- 7 - Here, counsel certified he (1) personally consulted

with defendant regarding "this motion"; (2) reviewed the tran-

scripts of the report of plea of guilty proceedings and sentenc-

ing hearing, as well as police reports; (3) examined the trial

court file; and (4) elected to make no modification to the

motion. As such, counsel fully complied with the Rule 604(d)

requirements.

Defendant asserts that the certificate is insufficient

because counsel asserted he personally consulted with defendant

regarding "this motion," which meant a nonexistent motion to

reconsider sentence as opposed to the motion to withdraw the

guilty plea. Supreme Court Rule 604(d) does not require a

particular heading. The substance of the certificate complied

with Rule 604(d). The failure to properly label the motion,

while unfortunate, does not require remand for strict compliance

with the Rule 604(d) certificate requirements.

B. This Court Imposes the $10 Drug-Court Assessment and the $15 Children's-Advocacy-Center Assessment and Defendant Is Entitled to the $5-Per-Day Credit Against Those Fines

In his opening brief, defendant argued the circuit

clerk lacked the authority to impose the $10 drug-court assess-

ment (55 ILCS 5/5-1101(d-5) (West 2008)) and $15 children's-

- 8 - advocacy-center assessment (55 ILCS 5/5-1101(f-5) (West 2008))

because those assessments constituted fines. Defendant asked

that this court vacate the fines or, in the alternative, offset

the fines in the amount of $5-per-day for the days defendant

spent in custody before his transfer to the Department of Correc-

tions. See 725 ILCS 5/110-14 (West 2008) (providing for a $5-

per-day credit against fines for each day of incarceration on a

bailable offense).

The State, in its appellee's brief, agreed that the

circuit clerk lacked the authority to impose those fines but

asserted that this court may reimpose the mandatory fines. The

State also agreed that defendant was entitled to full credit

against this $10 drug-court assessment and $15 children's-

advocacy-center assessment because defendant "spent more than

seven days in custody before sentencing."

In his reply brief, defendant agreed with the State

that this court has the ability to reimpose the $10 drug-court

assessment and $15 children's-advocacy-center assessment. If

reimposed, defendant asked that those fines be offset by defen-

dant's sentence credit.

Section 5-1101 of the Counties Code grants counties the

authority to enact by ordinance (1) a $10 "fee" to be paid by the

- 9 - defendant on a judgment of guilty to be used to finance the

county mental-health court, county drug court, or both (55 ILCS

5/5-1101(d-5) (West 2008)) and (2) a mandatory children's-

advocacy-center "fee" of between $5 and $30 to be paid by the

defendant on a judgment of guilty (55 ILCS 5/5-1101(f-5) (West

2008)). The McLean County Board has enacted ordinances providing

for both "fees." See McLean County Ordinance Setting a $10.00

Fee for Drug Court (eff. September 1, 2006); McLean County

Ordinance Setting a $15.00 Fee for the Children's Advocacy Center

(eff. June 1, 2008).

Both assessments are mandatory. The statutory provi-

sion pertaining to the children's advocacy center provides that

the county board may adopt a mandatory fee. See 55 ILCS 5/5-

1101(f-5) (West 2008). Although the statutory language relating

to the drug-court assessment is permissive, the assessment is

mandatory once the county board enacts the ordinance. People v.

Price, 375 Ill. App. 3d 684, 701, 873 N.E.2d 453, 468 (2007).

Although identified as "fees" in the statute, the drug-

court and children's-advocacy-center assessments have been found

to constitute "fines." A fee compensates the State for costs

incurred as a result of prosecuting a defendant whereas a fine

does not. People v. Sulton, 395 Ill. App. 3d 186, 193, 916

- 10 - N.E.2d 642, 648 (2009). Here, both the drug-court and

children's-advocacy-center assessments are fines as neither

compensates the State for costs incurred as a result of the

prosecution of defendant. See Sulton, 395 Ill. App. 3d at 192-

93, 916 N.E.2d at 647-48 (citing factors in determining whether

the drug-court assessment was a cost of prosecution and finding

the assessment was a fine); People v. Jones, 397 Ill. App. 3d

651, 664, 921 N.E.2d 768, 778 (2009) (finding the children's-

advocacy-center assessment was a fine), appeal pending (March

Term 2010).

Because the drug-court and children's-advocacy-center

assessments are fines, those assessments cannot be imposed by the

circuit clerk. See People v. Swank, 344 Ill. App. 3d 738, 747,

800 N.E.2d 864, 871 (2003) (holding that "[t]he imposition of a

fine is a judicial act" and the clerk of the court has no power

to levy fines). In this case, who imposed those mandatory fines

is unclear. Before accepting defendant's plea, the court admon-

ished defendant that his sentence would include "certain manda-

tory fines and court costs" and those would include the VCVA

assessment and DNA-analysis assessment. The March 24, 2009,

docket entry also reflects that defendant's sentence included

fines per a supplemental order. No supplemental order is con-

- 11 - tained in the record. Whether the "Notice to Party" was intended

to be the supplemental order is not clear from the record.

Further, the notice to party is not reflected as having been

filed on the docket sheet, but it is filed stamped. Neither is

it signed by the judge. The notice to party is initialed by

"TB," who appears to be a clerk. The record contains no other

document that can be construed as a supplemental order imposing

fines.

Moreover, the trial court indicated at the plea and

sentencing hearing that it had sentenced defendant in accordance

with the plea agreement. The plea agreement provided for no fine

"plus court costs and fees." See, e.g., People v. Evangelista,

393 Ill. App. 3d 395, 401, 912 N.E.2d 1242, 1247 (2009) (wherein

the court ordered no fines imposed; the appellate court found

that VCVA assessment was mandatory and the clerk could not impose

that fine on the court's behalf). However, the reference to "no

fine" likely referred to the fine provided for in section 5-9-1

(a)(1) of the Unified Code of Corrections (Corrections Code) (730

ILCS 5/5-9-1(a)(1) (West 2008) (providing for a fine for a felony

of $25,000 or the amount specified in the offense, whichever is

greater)). The court also admonished defendant, before accepting

his plea, that in addition to his sentence, "there are certain

- 12 - mandatory fines and court costs."

As the parties note, this court may reimpose mandatory

fines. See Evangelista, 393 Ill. App. 3d at 401, 912 N.E.2d at

1247 (reimposing the mandatory VCVA assessment). The record is

not clear whether the trial court imposed those mandatory fines.

Assuming the circuit clerk in fact imposed those fines, we vacate

the circuit clerk's fines and impose the $10 drug-court assess-

ment and $15 children's-advocacy-center assessment. Defendant is

entitled to the $5-per-day credit against the drug-court and

children's-advocacy-center fines. See 725 ILCS 5/110-14 (West

2008); Jones, 397 Ill. App. 3d at 664, 921 N.E.2d at 778 ($5-per-

day credit applies to the children's-advocacy-center fine);

Sulton, 395 Ill. App. 3d at 193, 916 N.E.2d at 648 (finding the

issue of monetary credit may be raised for the first time on

appeal, and the defendant was entitled to the $5-per-day credit

against the drug-court assessment).

C. The $20 VCVA Assessment Must Be Vacated and Reimposed in the Amount of $24

Defendant last argues that the VCVA assessment must be

reduced from $20 to $4. The State argues the VCVA assessment is

void and the correct VCVA assessment is $24.

Section 10 of the Violent Crime Victims Assistance Act

- 13 - provides for a penalty to be collected from each defendant

convicted of a felony. 725 ILCS 240/10(b) (West 2008). If no

other fines are imposed, the penalty to be collected is $25 for

crimes of violence and $20 for any other felony. See 725 ILCS

240/10(c)(1), (c)(2) (West 2008). If other fines are imposed,

the penalty is "$4 for each $40, or fraction thereof, of fine

imposed." 725 ILCS 240/10(b) (West 2008). The VCVA assessment

is not subject to the $5-per-day credit provided in section 110-

14(a) of the Code of Criminal Procedure of 1963 (Criminal Code)

(725 ILCS 5/110-14(a) (West 2008)). See People v. Mingo, 403

Ill. App. 3d 968, 973, 936 N.E.2d 1156, 1160 (2010).

Defendant argues that because other fines were im-

posed--the $10 drug-court assessment and the $15 children's-

advocacy-center assessment--the VCVA assessment must be reduced

to $4. In response, the State argues the trial court imposed the

$200 DNA-analysis assessment and the circuit clerk lacked the

authority to waive the DNA-analysis assessment. The State argues

this court should reimpose the $200 DNA-analysis assessment. In

such case, defendant's fines would total $225, and the VCVA

assessment would total $24.

In his reply brief, defendant argues this court lacks

jurisdiction to address the State's argument because (1) the

- 14 - State is not authorized under Supreme Court Rule 604(a) (210 Ill.

2d R. 604(a)) to appeal the failure to impose a missing fine, and

(2) the absence of the DNA-analysis assessment does not render

the sentence void. Defendant further argues the State forfeited

the issue.

The trial court imposed the DNA-analysis assessment as

indicated in the transcript of the plea/sentencing hearing. The

court specifically recited the term of the plea agreement that

the DNA-analysis assessment would be imposed. At the conclusion

of the hearing, the court noted having "sentenced the defendant

in accordance with his plea agreement." See, e.g., People v.

Thurston, 255 Ill. App. 3d 512, 514-15, 626 N.E.2d 426, 427

(1994) (providing that the appellate court may examine the oral

pronouncement of a sentence and the written sentencing order

entered the same day when ascertaining the terms of the sen-

tence). The docket entry also reflects the imposition of the

DNA-analysis assessment. Nothing in the record indicates the

court itself actually rescinded that order.

Presumably, the circuit clerk reduced the DNA-analysis

assessment to zero, but the clerk lacked the authority to do so.

See, e.g., Swank, 344 Ill. App. 3d at 747-48, 800 N.E.2d at 871

("[t]he imposition of a fine is a judicial act"). As such, the

- 15 - reduction of the DNA-analysis assessment to zero is void, and the

State can raise the issue in response to defendant's argument

that the VCVA assessment must be reduced. See, e.g., People v.

Malchow, 193 Ill. 2d 413, 429-30, 739 N.E.2d 433, 443 (2000)

(finding that State was allowed to challenge a sentence on

appeal; sentence below the minimum term established by the

legislature was void). Moreover, the State did not forfeit the

issue because defendant never raised his objection to the amount

of the VCVA assessment in the trial court.

Finally, defendant argues that section 5-4-3 of the

Corrections Code (730 ILCS 5/5-4-3 (West 2008)) does not require

redundant DNA sampling and fees.

However, the plea agreement specifically provided for

the imposition of the DNA-analysis assessment. See, e.g., People

v. Snyder, 387 Ill. App. 3d 1094, 1102, 904 N.E.2d 625, 631-32

(2009) (finding the defendant was not entitled to an additional

day of sentence credit where she bargained for her sentence and

acquiesced in the sentence imposed). Consequently, this court

concludes that the trial court did not err by imposing the $200

DNA-analysis fee and the circuit clerk erred by reducing that fee

to zero. Therefore, this court reimposes the DNA-analysis fee of

$200 imposed by the trial court. The DNA-analysis assessment is

- 16 - a fine and is subject to credit under section 110-14 of the

Criminal Code (725 ILCS 5/110-14(a) (West 2008)). People v.

Long, 398 Ill. App. 3d 1028, 1034, 924 N.E.2d 511, 517 (2010).

Because other fines were imposed--the DNA-analysis, drug-court,

and children's-advocacy-center assessments--and total $225, we

vacate the $20 VCVA assessment and impose a VCVA assessment of

$24.

This court recognizes the morass of fines, fees, and

costs created by the legislature. The calculation of these sums

is a monumental feat which has commonly been accomplished by the

clerk after the sentencing, in the clerk's office with the aid of

computers. The wording of much of the legislative language would

seem to indicate that the clerk is responsible for assessing

and/or collecting not only the fees and costs, but also the

fines. See, e.g., 705 ILCS 105/27.3a(1) (West 2008) (document-

storage fee; the county board may require the circuit clerk to

collect a document fee to be charged and collected by the clerk

of the court); 705 ILCS 105/27.1a (West 2008) (circuit clerk fee;

providing that "the clerk of the circuit court must charge the

minimum fee"); 725 ILCS 240/10(b) (West 2008) (VCVA assessment;

providing that the penalty "shall be collected by the [c]lerk of

the [c]ircuit [c]ourt in addition to the fine and costs in the

- 17 - case"); 730 ILCS 5/5-4-3(j), (k)(2) (West 2008) (DNA-analysis

assessment; providing that the defendant "shall pay an analysis

fee of $200" and providing "[a]ll fees shall be collected by the

clerk of the court"). Further complicating the computations are

recent cases which have recharacterized many fees as fines,

thereby eliminating the clerk's authority to impose the assess-

ments.

This court also recognizes the daily dilemma faced by

the court and clerks, even for those who have staff and computers

to support the prompt assessment of the multitude of specific

fines, fees, and costs in the courtroom with the defendant

present. The myriad of legislative requirements and the complex-

ity of their precise application based on a number of legislative

and situational variables make the task immensely difficult. The

possibility of error because of the complicated nature of the

assessment process is high and is of great concern to the court

and to the elected court clerks in the 102 counties in the state

of Illinois.

The current situation calls for a comprehensive legis-

lative revision in the assessment of fines, fees, costs and the

$5-per-day credit for time spent in custody prior to sentencing.

The judicial and clerical time expended on accurate calculation

- 18 - of the precise assessment of these monies, much of which may

never be collected, is phenomenal. In the interim, the current

"Notice to Party" form could be utilized in the courtroom and on

the record and signed by the presiding judge after the defendant

is admonished that the specific mandatory and discretionary fines

will be imposed in addition to any unspecified clerk's fees and

costs.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment as modified. This court (1) vacates the circuit clerk's

assessment of fines and imposes the $10 drug-court and $15

children's-advocacy-center fines, which are offset by credit for

the time defendant spent in presentencing custody; (2) reimposes

the $200 DNA-analysis assessment, which is offset by credit for

the time defendant spent in presentencing custody; and (3)

vacates the $20 VCVA assessment and imposes a $24 VCVA assess-

ment.

Affirmed as modified.

KNECHT and POPE, JJ., concur.

- 19 -