2018 IL App (4th) 160385 FILED NO. 4-16-0385 November 16, 2018 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Clark County GARY G. HAMMONS, ) No. 13CF75 Defendant-Appellant. ) ) Honorable ) Tracy W. Resch, ) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justices DeArmond and Turner concurred in the judgment and opinion.
OPINION ¶1 Defendant, Gary G. Hammons, challenges the reasonableness and
constitutionality of some conditions the Clark County circuit court imposed on his probation.
Also, he requests that we vacate some fines the circuit clerk purported to levy against him and
that we order the correction of an erroneous notation the clerk made in the record as to the
amount of restitution he still owes.
¶2 We hold that (1) defendant has procedurally forfeited his objections to the
probationary conditions; (2) the doctrine of plain error, invoked by him, does not avert the
forfeiture; and (3) we lack subject-matter jurisdiction to address his remaining arguments. ¶3 I. BACKGROUND
¶4 On June 10, 2014, defendant entered a negotiated plea of guilty to two counts of
the information: count II, residential burglary (720 ILCS 5/19-3(a) (West 2012)), and count III,
theft (id. § 16-1(a)(1)).
¶5 On September 22, 2014, the trial court sentenced him to eight years’
imprisonment for count II, to be followed by 30 months’ probation for count III.
¶6 Two conditions of the probation were that defendant (1) “not associate with any
person who ha[d] a misdemeanor or felony drug conviction” and (2) “[s]ubmit to warrantless
searches by [the] probation officer of his/her person, property (real estate and personal), [and]
vehicles[,] including[,] but not limited to[,] the residence and curtilage.” He never objected to
those conditions.
¶7 The trial court ordered defendant to pay “[c]osts,” which “the State previously
estimated in the amount of $857” (the record does not appear to contain an itemization of these
“[c]osts”). The court also ordered him to pay $42,529 in restitution but gave him credit against
that amount for $21,382 in restitution previously paid, i.e., $15,000 that codefendant Joshua
Houle had paid, $1275 from codefendant Jessica Creech’s bond, $953 from codefendant Shawn
Morris’s bond, $1654 in currency and coins seized from defendant after his arrest, and
defendant’s bond of $2500. Thus, the court calculated the net amount of restitution owed by
defendant to be $21,147 ($42,529 minus $21,382 equals $21,147).
¶8 Afterward, the circuit clerk imposed additional assessments on defendant,
including a court finance assessment of $100, a violent crime victim’s fund assessment of $200,
a medical cost assessment of $20, and two circuit clerk fees of $80 apiece. The clerk also
represented, in a certified printout dated January 16, 2018, that defendant still owed the full
-2 amount of $42,529 in restitution—although, as the trial court had acknowledged in the
sentencing hearing, a total of $21,382 in restitutionary payments already had been made.
¶9 II. ANALYSIS
¶ 10 A. Defendant’s Procedural Forfeiture of the Issue of Whether the Conditions of Probation Are Reasonable and Constitutional
¶ 11 Defendant challenges the reasonableness and constitutionality of two of the
conditions the trial court imposed on his probation. Those two conditions were that he (1) “not
associate with any person who ha[d] a misdemeanor or felony drug conviction” and (2) “[s]ubmit
to warrantless searches by [the] probation officer of his/her person, property (real estate and
personal), [and] vehicles[,] including[,] but not limited to[,] the residence and curtilage.”
¶ 12 In his motion to reconsider the sentence, defendant never mentioned either of
those probationary conditions. Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) required
him to raise any sentencing issues in his motion to reconsider the sentence and warned that
omitting any such issues from the motion would result in their forfeiture on appeal. The rule
provides as follows:
“(d) Appeal by Defendant From a Judgment Entered Upon a Plea of
Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken
unless the defendant, within 30 days of the date on which sentence is imposed,
files in the trial court a motion to reconsider the sentence, if only the sentence is
being challenged, or, if the plea is being challenged, a motion to withdraw the
plea of guilty and vacate the judgment.
***
The motion shall be in writing and shall state the grounds therefor. ***
-3 ***
*** Upon appeal[,] any issue not raised by the defendant in the motion to
reconsider the sentence or withdraw the plea of guilty and vacate the judgment
shall be deemed waived.” Ill. S. Ct. R. 604(d) (eff. July 1, 2012).
Although the rule says “waived,” it really means “forfeited.” Courts tend to use the terms
interchangeably, but, to be precise, a “waiver” is the voluntary relinquishment of a known right,
whereas a party “forfeits” an issue—voluntarily or not—by failing to raise the issue earlier as
procedural rules required. People v. Blair, 215 Ill. 2d 427, 444 n.2 (2005).
¶ 13 Because defendant’s motion for reconsideration of the sentence never mentioned
any conditions of probation, one might assume that, under Rule 604(d), any issue regarding those
conditions would be forfeited. In In re J.W., 204 Ill. 2d 50, 61 (2003), however, the supreme
court held that when a defendant (or, in that case, a respondent) appealed the conditions of
probation, Rule 604(d) was inapplicable because, instead of “appeal[ing] from [the] judgment”
of probation (Ill. S. Ct. R. 604(d) (eff. July 1, 2017), the defendant appealed the conditions of the
judgment. The judgment was the sentence, i.e., probation (cf. People v. Salem, 2016 IL 118693,
¶ 23 (the final judgment in a criminal case is the sentence)), and instead of challenging the
sentence itself, the respondent in J.W. challenged some of the conditions of the sentence—he had
no objection to being sentenced to probation in lieu of imprisonment; he objected merely to some
of the conditions of the probation. For that reason, according to the supreme court, his challenge
did not fit within the language of Rule 604(d). J.W., 204 Ill. 2d at 61. In accordance with J.W.,
we conclude that Rule 604(d) poses no obstacle to our consideration of defendant’s argument
that the two conditions of probation are unreasonable and unconstitutional.
-4 ¶ 14 Even so, the common law poses an obstacle. Apart from Rule 604(d), there is a
common law rule that issues never raised in the trial court are deemed, on appeal, to be
procedurally forfeited. People v. Scharlau, 141 Ill. 2d 180, 203 (1990); People v. Holloway, 86
Ill. 2d 78, 91 (1981). There are exceptions to this common law rule. The constitutionality of a
criminal statute can be challenged at any time (J.W., 204 Ill. 2d at 61). In this appeal, however,
defendant does not challenge the constitutionality of a criminal statute; rather, he challenges the
constitutionality of some probationary conditions that the trial court created on its own. Also, to
name another exception, a defendant may raise a claim of ineffective assistance for the first time
on appeal. People v. Jarrell, 248 Ill. App. 3d 1043, 1049 (1993). (We will address defendant’s
claims of ineffective assistance later in this opinion.) Otherwise, a constitutional issue, such as
the constitutionality of a condition of probation, can be forfeited just like any other issue by
failing to raise it in the proceedings below. See People v. McClendon, 197 Ill. App. 3d 472, 482
(1990); People v. Visnack, 135 Ill. App. 3d 113, 118 (1985). Raising no objection, in the trial
court, to court-created conditions of probation results in a forfeiture of the issue on appeal, under
supreme court precedent. See Scharlau, 141 Ill. 2d at 203; Holloway, 86 Ill. 2d at 91.
¶ 15 B. Defendant’s Invocation of the Doctrine of Plain Error
¶ 16 1. The Threshold Question of Whether There Was an Error That Was “Plain,” That Is, Clear or Obvious
¶ 17 Defendant argues that the doctrine of plain error should avert the forfeiture in this
case. Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides: “Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention of the
trial court.” A “plain error” is an error that is clear or obvious. People v. Piatkowski, 225 Ill. 2d
551, 564-65 n.2 (2007). Thus, under the plain-error doctrine, the existence of an error is not
-5 enough to avert a forfeiture, even if the error is genuinely an error. Not even reversible error is
enough.
“[S]hort of a conclusion that an asserted error is a ‘plain’ one, the so-called plain
error doctrine offers no basis to excuse a procedural default. [Citation.] The point
is crucial, for while all plain errors are reversible ones, not all reversible errors are
also ‘plain’ for purposes of Rule 615(a).” People v. Keene, 169 Ill. 2d 1, 17
(1995).
The plain error doctrine is not a backdrop to catch merely arguable issues that could have been
raised in the trial court. The error had to be manifest or patent.
¶ 18 We now will consider the probationary conditions of which defendant complains,
to determine whether the trial court committed a plain error by imposing the conditions.
¶ 19 a. The Condition That Defendant Refrain From Associating With Any Person Who Has a Drug Conviction
¶ 20 i. The Reasonableness of This Condition
¶ 21 Section 5-6-3(a) of the Unified Code of Corrections (730 ILCS 5/5-6-3(a) (West
2012)) lists the conditions to which any sentence of probation must be subject. Also, subsection
(b) (id. § 5-6-3(b)) lists some optional conditions and provides that they are “in addition to other
reasonable conditions” the trial court might impose. Thus, the court is not limited to the
mandatory and optional conditions listed in section 5-6-3 but may impose “other reasonable
conditions” on the defendant’s probation. Id.
¶ 22 The supreme court and the appellate court “have consistently held that any
additional condition not expressly authorized by statute may be imposed as long as it is
(1) reasonable and (2) relates to (a) the nature of the offense or (b) the rehabilitation of the
-6 defendant as determined by the trial court.” (Internal quotation marks omitted.) People v.
Goossens, 2015 IL 118347, ¶ 13. This standard in Goossens tracks the language of section 5-6
3(b): “The [c]ourt may[,] in addition to other reasonable conditions relating to the nature of the
offense or the rehabilitation of the defendant as determined for each defendant in the proper
discretion of the [c]ourt[,] require that the person [do the enumerated things].” 730 ILCS 5/5-6
3(b) (West 2012).
¶ 23 We cannot say it is clear or obvious that forbidding defendant to associate with
people who have drug convictions violates section 5-6-3(b). According to the presentence
investigation report, which was filed on July 21, 2014, defendant began using methamphetamine
in his early twenties and continued using it for 15 years (he was 41 at the time he was
interviewed for the report). He used methamphetamine on Thanksgiving and Christmas 2013 and
again in early 2014. He had been in residential substance-abuse treatment three times. He had 10
drug convictions. Commonly, people commit burglary and theft to support their drug habit. To
overcome a drug habit, one should remove oneself from the drug culture. Defendant observes,
however, that not everyone with a drug conviction is a current user of drugs. That is true, but it
does not follow that forbidding defendant to associate with people who have a drug conviction
was plainly erroneous. It is not always possible, at first, to tell a fully reformed person from an
imperfectly reformed person. Arguably, it would be best for defendant to avoid the risk of a
misjudgment by refraining from associating with anyone who has a drug conviction.
¶ 24 ii. The Constitutionality of This Condition
¶ 25 (a) The Asserted Overbroadness of the Condition
¶ 26 Defendant argues that by forbidding him to associate with people who had drug
convictions, the trial court committed plain error by unconstitutionally infringing on his right to
-7 freedom of association under the first amendment (U.S. Const., amend. I), made applicable to the
states by the term “liberty” in the fourteenth amendment (U.S. Const., amend. XIV). See
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336 n.1 (1995).
¶ 27 The relevant constitutional standard resembles section 5-6-3(b) in that “the
overriding concern is reasonableness.” J.W., 204 Ill. 2d at 78.
“[W]here a condition of probation requires a waiver of precious constitutional
rights, the condition must be narrowly drawn; to the extent it is overbroad[,] it is
not reasonably related to the compelling state interest in reformation and
rehabilitation and is an unconstitutional restriction on the exercise of fundamental
constitutional rights.” (Internal quotation marks omitted.) Id.
“To be reasonable, a condition of probation must not be overly broad when viewed in the light of
the desired goal or the means to that end.” Id.
¶ 28 The reasonableness analysis that we performed under section 5-6-3(b) applies just
as readily to this constitutional issue. Forbidding defendant to associate with anyone who has a
drug conviction is rationally defensible. Burglary and theft often are motivated by a drug habit,
and to break his drug habit, defendant should avoid having any relationship with people
connected with the drug culture. Even people who claim to have stopped using drugs can still be
connected with the drug culture. They might continue to spend time with people who use and
distribute drugs, and their companions could become defendant’s companions. Therefore, to
maximize defendant’s chances of rehabilitation and to minimize his risk of a relapse, he should
refrain from associating with anyone who has a drug conviction. We cannot say that such logic is
clearly or obviously fallacious. “[T]he environment in which a probationer serves probation is an
important factor on the likelihood that probation will be successfully completed. The challenged
-8 condition is reasonably related to avoidance of future criminality.” People v. Robinson, 245 Cal.
Rptr. 50, 51 (Cal. Ct. App. 1988) (upholding, against a first-amendment challenge, a
probationary condition that the defendant refrain from associating with anyone who has a
criminal record).
¶ 29 (b) In re Omar F.
¶ 30 Defendant compares his case to In re Omar F., 2017 IL App (1st) 171073, ¶ 63,
which held that a probationary condition unconstitutionally infringed on the respondent minor’s
freedom of association by forbidding him to “hav[e] any contact, directly or indirectly, with ***
members of street gangs” (internal quotation marks omitted) (id. ¶ 61).
¶ 31 One problem with defendant’s reliance on Omar F. is that Omar F. did not exist
in September 2014, when the trial court sentenced defendant to probation; therefore, the court’s
purported plain error could not have been a disregard of (the as of yet nonexistent) Omar F. See
People v. Williams, 2015 IL App (2d) 130585, ¶ 11 (“Plain-error review is reserved for errors
that are clear or obvious based on law that is well settled at the time of trial ***.” (Internal
quotation marks omitted.)). It would make no sense to hold that the court plainly erred by failing
to follow Omar F. some three years before that decision was issued.
¶ 32 Even if we disregarded this problem of anachronism, applying Omar F. to the
present case is far from straightforward. There are a couple of significant differences between
Omar F. and the present case.
¶ 33 First, the condition of probation at issue in Omar F. is different from the condition
at issue in the present case. Therefore, an analogy must be drawn. For that reason alone, Omar F.
is not obviously on point. See Piatkowski, 225 Ill. 2d at 564-65 n.2 (a plain error is an error that
is clear or obvious). Defendant does not cite any case that is directly on point; he does not cite
-9 any case like his, in which the probationary condition was refraining from associating with
people who had a drug conviction. As we already have noted, a California court upheld, against a
first-amendment challenge, a broader probationary condition that the defendant refrain from
associating with anyone who had a criminal record (not limited to a drug conviction). Robinson,
245 Cal. Rptr. at 51. As the California court observed, “restriction of the right of association is
part of the nature of the criminal process.” Id.
¶ 34 Second, the prohibition in Omar F. is broader than the prohibition in the present
case. The trial court in Omar F. forbade the respondent to “hav[e] any contact, directly or
indirectly, with *** members of street gangs” (emphasis added and internal quotation marks
omitted) (Omar F., 2017 IL App (1st) 171073, ¶ 61), whereas the trial court in the present case
forbade defendant to “associate with any person who ha[d] a misdemeanor or felony drug
conviction” (emphasis added). Having contact with someone and associating with someone are
not the same thing. Direct or indirect contact does not necessarily amount to association. To
“associate” means “[t]o join[,] often *** in a loose relationship[,] as a partner, fellow worker,
colleague, friend, companion[,] or ally.” Birzon v. King, 469 F.2d 1241, 1243 n.3 (2d Cir. 1972).
“ ‘Association’ generally has been interpreted to mean intentional, knowing[,] and substantial
contact, or the development of a significant or meaningful relationship, with a convicted criminal
over a substantial period of time.” State v. Allen, 634 S.E.2d 653, 659 (S.C. 2006). Contacting
someone does not necessarily entail entering into a relationship with that person. See Arciniega
v. Freeman, 404 U.S. 4, 4 (1971) (“[The] petitioner was forbidden to ‘associate’ with other ex-
convicts. *** We do not believe that the parole condition restricting association was intended to
apply to incidental contacts between ex-convicts in the course of work on a legitimate job for a
common employer.”). Also, “[g]iven that certain areas of Chicago [were] gang-infested” (Omar
- 10 F., 2017 IL App (1st) 171073, ¶ 68), the prohibited class in Omar F. (“ ‘members of street
gangs’ ”) was broader than the prohibited class in the present case (“any person who has a
misdemeanor or felony drug conviction”).
¶ 35 Therefore, just because the probationary condition in Omar F. was “overbroad”
(id. ¶ 63), it is not clear or obvious that the more narrow probationary condition in the present
case is overbroad. See People v. Albea, 2017 IL App (2d) 150598, ¶ 17 (“The first step in plain-
error review is to determine whether clear or obvious error is present.”). Conditioning
defendant’s probation on his refraining from associating with people who had a drug conviction
was not plain error. The plain-error doctrine does not avert the procedural forfeiture of this issue.
¶ 36 b. The Condition That Defendant Submit to Searches by the Probation Officer
¶ 37 The other probationary condition that defendant challenges, for the first time, on
appeal, is that he “[s]ubmit to warrantless searches by [the] probation officer of his/her person,
property (real estate and personal), [and] vehicles[,] including[,] but not limited to[,] the
residence and curtilage.” Defendant argues that this condition is unreasonable because it does not
require reasonable suspicion of criminal activity prior to a search. See People v. Lampitok, 207
Ill. 2d 231, 252-253 (2003) (“After balancing these privacy and government interest
considerations under the circumstances of this case, we find that the [police] officers were
constitutionally authorized to search the motel room only if they had reasonable suspicion of a
probation violation by [the defendant].”).
¶ 38 Defendant’s interpretation of this probationary condition is debatable because, in
People v. Eiland, 217 Ill. App. 3d 250, 258 (1991), the appellate court stated: “[W]e believe a
probationer’s waiver of fourth amendment rights extends only to searches conducted upon a
reasonableness standard, as any probation condition imposed must be ‘reasonable’ under the
- 11 language of section 5-6-3(b).” Because “the judicial construction of the statute becomes a part of
the law” (People v. Villa, 2011 IL 110777, ¶ 36), it is arguable that, under Eiland, the
probationary condition that defendant submit to searches by the probation officer contained an
implied qualification that any such search be supported by “reasonable suspicion of a probation
violation” (Lampitok, 207 Ill. 2d at 252-53). Therefore, the imposition of this probationary
condition was not clearly or obviously erroneous, and the plain error doctrine does not avert the
procedural forfeiture of this issue, either.
¶ 39 2. The Further Question of Whether the Probationary Conditions Threaten the Integrity and Reputation of the Judicial Process
¶ 40 Again, the threshold question in plain-error analysis is whether the error was
plain, that is to say, clear or obvious. “The first step in a plain-error analysis is to determine
whether a clear and obvious error occurred. [Citation.] If a clear and obvious error occurred, we
then consider whether either of the two prongs of the plain-error doctrine has been satisfied.”
(Emphasis added.) People v. Henderson, 2017 IL App (3d) 150550, ¶ 37. “[The] [d]efendant
bears the burden of persuasion in showing both that a clear and obvious error exists and that one
of the prongs is satisfied.” (Emphasis added.) People v. Marcos, 2013 IL App (1st) 111040, ¶ 58.
The two alternative prongs of plain error are that “(1) the evidence is close, regardless of the
seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.”
People v. Herron, 215 Ill. 2d 167, 186-87 (2005). Defendant argues only the second prong of
plain error.
¶ 41 Before we even reach the second prong, we must find an error that was clear or
obvious. See Henderson, 2017 IL App (3d) 150550, ¶ 37. As we discussed earlier, defendant
fails to make the threshold showing that the two probationary conditions of which he complains
for the first time on appeal were clearly or obviously erroneous under the law.
- 12 ¶ 42 Even if we assumed, for the sake of argument, that defendant made that threshold
showing, we would be unconvinced that the probationary conditions meet the second prong of
plain error. “[The] second prong of the plain error exception is to be invoked only where the
possible error is so serious that its consideration is necessary to preserve the integrity and
reputation of the judicial process.” (Internal quotation marks omitted.) People v. Hampton, 149
Ill. 2d 71, 102 (1992). The purpose of the plain-error doctrine is to protect a defendant from
“serious injustices.” People v. Vargas, 174 Ill. 2d 355, 363 (1996). Even if we accepted
defendant’s argument that the probationary conditions are unconstitutionally overbroad, it would
not follow, ipso facto, that they inflict a serious injustice upon him and throw the judicial system
into disrepute, considering that (1) he has the right—which, for all that appears in the record, he
has never exercised—to request a modification of conditions that prove, in practice, to be
onerously overbroad (see 730 ILCS 5/5-6-4(f) (West 2016)) and (2) refusing to consent to a
request by the probation officer to conduct a search presumably would not result in the
revocation of probation unless the State proved, in the revocation hearing, that the proposed
search was reasonable (see id. §§ 5-6-4(b), (c); Eiland, 217 Ill. App. 3d at 258). Therefore, we
find the second prong of plain error to be unmet.
¶ 43 C. The Claim of Ineffective Assistance of Counsel
¶ 44 Defendant argues that defense counsel rendered ineffective assistance by omitting
to object to the two probationary conditions.
¶ 45 A claim of ineffective assistance of counsel has two elements: (1) counsel’s
performance fell below an objective standard of reasonableness (Strickland v. Washington, 466
U.S. 668, 687-88 (1984)) and (2) the defendant consequently suffered “prejudice,” defined as “a
- 13 reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different” (id. at 694).
¶ 46 We disagree that refraining from objecting to the two conditions of probation was
professionally unreasonable. For all we know from the record, defendant might have told defense
counsel not to object. See In re Luis F., 177 Cal. Rptr. 3d 174, 180 (Cal. Ct. App. 2009). In any
event, defense counsel could have reasonably concluded that, for the reasons we already have
explained, an objection to the two probationary conditions would have been futile. “Defense
counsel is not required to make futile motions or objections in order to provide effective
assistance.” (Internal quotation marks omitted.) People v. Mister, 2016 IL App (4th) 130180-B,
¶ 95. If defense counsel had objected to the broadness of the condition that defendant refrain
from associating with anyone who had a drug conviction, the trial court might well have
responded that, given defendant’s history of drug abuse, this was the safest policy for him and
that it was best to err on the side of caution. As for the other probationary condition—that he
consent to searches by the probation officer—the court, on the authority of Lampitok, might have
agreed to add an express requirement of reasonable suspicion. Defendant would have gained
nothing, however, because Eiland already implied a reasonableness requirement into the search
condition.
¶ 47 D. Fines Imposed by the Circuit Clerk
¶ 48 Defendant argues, and the State concedes, that we should vacate the following
three assessments the circuit clerk imposed upon defendant, because they are essentially fines
and only the trial court can impose fines: (1) a court finance assessment of $100 (see 55 ILCS
5/5-1101(c) (West 2012); People v. Smith, 2014 IL App (4th) 121118, ¶ 54), (2) a violent crime
victim’s fund assessment of $200 (see 725 ILCS 240/10 (West 2012); Smith, 2014 IL App (4th)
- 14 121118, ¶ 63), and (3) a medical cost assessment of $20 (see 730 ILCS 125/17 (West 2012);
People v. Warren, 2016 IL App (4th) 120721-B, ¶ 119).
¶ 49 Under People v. Vara, 2018 IL 121823, which the supreme court issued after the
parties filed their briefs in this appeal, we lack subject-matter jurisdiction to review clerk-
imposed fines because article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI,
§ 6) confers on the appellate court jurisdiction to review only final judgments entered by the
circuit court (Vara, 2018 IL 121823, ¶ 13), the final judgment in a criminal case is the sentence
(id. ¶ 14), and clerk-imposed fines are not part of the sentence the court imposed on defendant
(see id. ¶ 23). “Because the circuit clerk had no authority to levy any fines against defendant, the
recording of the additional fines was invalid and unenforceable. However, the fact that the
clerk’s action was improper does not mean that defendant can challenge the unauthorized fines
through the appeal process.” Id.
¶ 50 E. Duplicate Circuit Clerk Fees
¶ 51 According to a printout the circuit clerk generated on January 11, 2018, and with
which we allowed defendant to supplement the record (but see Vara, 2018 IL 121823, ¶ 22
(holding that such a “payment status information sheet” is not properly part of the record on
appeal)), the circuit clerk imposed two circuit clerk fees in the amount of $80 apiece, one for
each count of which defendant was convicted. Defendant argues that the circuit clerk had
statutory authority to impose only one of those fees.
¶ 52 Section 27.1a(w)(1)(A) of the Clerks Act provides as follows:
“(1) The clerk shall be entitled to costs in all criminal and quasi-criminal
cases from each person convicted or sentenced to supervision therein as follows:
- 15 (A) Felony complaints, a minimum of $40 and a maximum of
$100.” (Emphasis added.) 705 ILCS 105/27.1a(w)(1)(A) (West 2012).
¶ 53 The State concedes that the circuit clerk should have charged defendant only one
circuit clerk fee since there was only one felony complaint.
¶ 54 Even so, the same reasoning from Vara that we applied to clerk-imposed fines
likewise applies to the circuit clerk fees. We begin by observing that we have subject matter
jurisdiction to review only final judgments entered by the circuit court (see Ill. Const. 1970, art.
VI, § 6; Vara, 2018 IL 121823, ¶ 13) and that the final judgment in a criminal case is the
sentence (Vara, 2018 IL 121823, ¶ 14). In the sentence the trial court imposed on defendant in
this case, we find no mention of circuit clerk fees. Because the circuit clerk fees are not part of
the final judgment, i.e., the sentence, we lack subject-matter jurisdiction to review them. See id.
¶ 23.
¶ 55 F. Restitution
¶ 56 If the defendant’s criminal act caused a person to receive “any *** damage to his
or her real or personal property,” the trial court must order restitution. 730 ILCS 5/5-5-6 (West
2012). The restitution must be in the amount of “the actual out-of-pocket expenses, losses,
damages, and injuries suffered by the victim.” (Emphasis added.) Id. § 5-5-6(b). “In no event
shall the victim be entitled to recover restitution in excess of the actual out-of-pocket expenses,
losses, damages, or injuries, proximately caused by the conduct of all of the defendants.” Id. § 5
5-6(c)(1).
¶ 57 In determining the amount of restitution, the trial court may rely on the
uncontested facts in the presentence investigation report. People v. Gallinger, 252 Ill. App. 3d
816, 820 (1993). According to the presentence investigation report in this case, the victims of the
- 16 residential burglary, Edgar and Carolyn Morris, suffered a loss of $42,529. This amount of loss
was uncontested, and in defendant’s sentencing hearing, the trial court ordered that he and his
codefendants were jointly and severally liable for $42,529 in restitution to the Morrises. The
court, however, reduced defendant’s restitutionary obligation by a total of $21,382, consisting of
the following items: $15,000 in restitution that Houle had paid, $1275 from Creech’s bond, $953
from Shawn Morris’s bond, $1654 in currency and coins seized from defendant after his arrest,
and defendant’s bond of $2500. Thus, the net amount of restitution that defendant owed was
$21,147 ($42,529 minus $21,382 equals $21,147). The circuit clerk, however, in a certified
printout dated January 16, 2018, claimed that defendant still owed the full $42,529 in restitution.
Defendant argues, and the State concedes, that the correct amount of restitution is $21,147 and
that the record should be amended accordingly.
¶ 58 The trouble is, this argument against the circuit clerk’s calculation of the net
restitutionary obligation is not an argument against the trial court’s judgment, any more than the
arguments against the clerk-imposed fines and fees are arguments against the judgment. It was
not the trial court’s judgment that defendant should pay a court finance assessment of $100, a
violent crime victims fund assessment of $200, a medical cost assessment of $20, and an extra
circuit clerk fee of $80. Nor was it the trial court’s judgment that he presently owed the full
$42,529 in restitution. These things of which defendant complains are all clerical departures
from the trial court’s judgment. Cf. Vara, 2018 IL 121823, ¶ 20 (“Thus, this case presents the
anomalous circumstance in which a defendant has filed an appeal seeking to uphold the
judgment entered by the circuit court.” (Emphasis in original.)). Under article VI, section 6, of
the Illinois Constitution (Ill. Const. 1970, art. VI, § 6), we have “jurisdiction to review final
judgments entered by the circuit court.” Vara, 2018 IL 121823, ¶ 13. The final judgment was the
- 17 sentence of September 22, 2014. See id. ¶ 14. The circuit clerk’s printout of January 16, 2018,
was not the judgment, and, thus, we lack subject-matter jurisdiction to review it. See id. ¶ 23.
¶ 59 III. CONCLUSION
¶ 60 For the foregoing reasons, we affirm the trial court’s judgment, and we assess $75
in costs against defendant.
¶ 61 Affirmed.
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