People v. Kemp

2025 IL App (5th) 230567-U

• Court: Appellate Court of Illinois
• Decided: March 12, 2025
• Docket: 5-23-0567
• Status: Unpublished

Opinion

NOTICE 2025 IL App (5th) 230567-U NOTICE Decision filed 03/12/25. The This order was filed under text of this decision may be NO. 5-23-0567 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) De Witt County. ) v. ) No. 19-CF-9 ) DEVIN KEMP, ) Honorable ) Jeremy J. Richey, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Justices Moore and Sholar concurred in the judgment.

ORDER

¶1 Held: The defendant cannot challenge the restitution order where he voluntarily agreed to pay restitution for the uncharged offenses and did not object to payment at sentencing.

¶2 Devin Kemp, the defendant, pled guilty to nine counts of forgery and was sentenced to 30

months of probation and 90 days in the county jail. The defendant also agreed to pay $37,165 in

restitution as part of his plea agreement, which included a combined payment of restitution for the

nine charged counts of forgery and restitution for uncharged forgeries. Thereafter, his probation

was revoked, and the circuit court sentenced him to two years in the Illinois Department of

Corrections (IDOC) with six months of mandatory supervised release. Further, the circuit court

reimposed the restitution for the charged and uncharged forgeries. The defendant argues on appeal

that the portion of the sentencing order that required the defendant to pay restitution for the

1 uncharged forgeries should be vacated because the prior plea agreement to pay that amount was

no longer in effect.

¶3 I. BACKGROUND

¶4 On January 16, 2019, the defendant was charged with nine counts of forgery, Class 3

felonies. The State alleged that on nine occasions the defendant, with the intent to defraud,

knowingly delivered to the First National Bank and Trust Company of Clinton, Illinois, a forged

check that was purported to be made by another, Brian Perkins. The checks associated with the

nine forgery charges totaled $10,880.

¶5 At the preliminary hearing, Detective Nicholas Hubrick of the De Witt County Sheriff’s

Office testified for the State regarding the offenses charged. Detective Hubrick testified that the

victim in this case was 73-year-old Michael Perkins. Detective Hubrick indicated that two of the

forged checks had been discovered by the defendant’s girlfriend, Victoria. She noticed that the two

checks were payable to the defendant and drawn on a Perkins’ farm account. Victoria was not

aware that the defendant had completed any work for the Perkins’ farm and became suspicious.

Victoria then contacted the victim’s grandson, Michael S. Perkins, and subsequently delivered the

checks to him.

¶6 After receiving these checks, Michael S. Perkins discovered additional forged checks made

payable to the defendant. Michael S. Perkins then notified the sheriff’s office and provided all of

the fraudulent checks to the department. All of the forged checks had been written from the

Perkins’ farm account. Both the victim, Michael Perkins, and his son, Michael “Brian” Perkins,

were named as signatories on the farm account. Each of the checks had allegedly been signed by

Brian Perkins and were paid to the order of the defendant. The total value of the checks was

$10,880; and the checks had been cashed between August 24, 2017, and November 3, 2017.

2 ¶7 After the sheriff’s office was notified of the forged checks, Detective Hubrick was assigned

to investigate. Through the investigation, Detective Hubrick obtained video footage from First

National Bank and Trust Company of Clinton, Illinois, where all the checks had been cashed.

Detective Hubrick identified the defendant as the person in the video footage who presented the

forged checks for payment at the bank. On March 7, 2018, as a part of the investigation, Detective

Hubrick and another officer interviewed the defendant. During the interview, the defendant

admitted that he had cashed the checks and that he knew Brian Perkins had not signed the checks.

At the conclusion of Detective Hubrick’s testimony, the circuit court found that probable cause

existed to believe that the defendant committed the charged offenses.

¶8 On November 4, 2019, the defendant entered a negotiated guilty plea to all nine counts of

forgery. One of the conditions set forth in the plea agreement was that the circuit court would

decide, at the sentencing hearing, the total amount of restitution to be paid. After taking judicial

notice of the testimony adduced at the preliminary hearing, the circuit court accepted the

defendant’s guilty plea. Subsequent to the plea hearing, on February 10, 2020, the circuit court

conducted the sentencing hearing. At the hearing, the defendant was sentenced to 30 months of

probation and 90 days in the county jail. In addition, the defendant was ordered to pay $37,165 in

restitution, which represented restitution in the amount of $10,880 for the nine charged counts of

forgery and the remainder for additional uncharged forgeries.

¶9 Subsequently, on October 6, 2021, the State filed a petition to revoke the defendant’s

probation. The State alleged that, while on probation, the defendant was arrested for the unlawful

possession of cannabis by a passenger in Calhoun County, Illinois. During a hearing on the State’s

petition to revoke probation, the defendant admitted to the allegations of the State’s petition. The

3 circuit court heard a factual basis and accepted the defendant’s admission. The circuit court then

ordered that a presentence report be prepared and scheduled a sentencing hearing.

¶ 10 On June 7, 2023, the circuit court conducted a sentencing hearing. Based on the seriousness

of the offenses originally charged, the defendant’s attitude toward probation, and his probation

violation, the State recommended that the defendant be sentenced to two years in the IDOC. The

State also recommended that the defendant be ordered to pay the remaining amount of restitution

and all court costs. The State indicated that the presentence report reflected a balance due in the

amount of $35,447 and noted that the defendant had been ordered to pay $100 per month.

However, the State was informed by the clerk that the defendant’s current account balance due

was $33,764. In response to the State’s argument, defense counsel argued that a prison sentence

was not appropriate because the defendant had complied with probation, except for the traffic

violation that led to the petition to revoke. The defendant had also made all of his monthly

restitution payments. Defense counsel recommended that the circuit court keep the defendant “on

his current sentence.” Defense counsel also recommended that the defendant’s bond, in the amount

of $2,000, be applied to the total amount of restitution due and owing. Further, defense counsel

suggested that the circuit court discuss an increase in the monthly restitution payments with the

defendant. The court gave the defendant an opportunity to speak on his own behalf, but the

defendant declined to do so.

¶ 11 After considering the presentence report, the factual basis, arguments from counsel and all

statutory and nonstatutory factors in aggravation and mitigation, the circuit court concluded that

the defendant would be unsuccessfully discharged from probation. The circuit court then sentenced

the defendant to two years in the IDOC with six months of mandatory supervised release. Further,

4 the circuit court reimposed the total amount of restitution for both the charged and uncharged

forgeries.

¶ 12 Following the sentencing hearing, on June 16, 2023, defense counsel filed a motion to

reconsider sentence. Defense counsel contended that the circuit court’s findings were an abuse of

discretion because it misapplied the factors in aggravation and mitigation. Defense counsel also

contended that the circuit court failed to consider the defendant’s conduct on probation, and its

finding that the defendant’s character and attitude did not make him likely to comply with

probation was against the manifest weight of the evidence. After it held a held a hearing on the

motion to reconsider, the circuit court denied the motion. This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 The defendant contends that the portion of the sentencing order that requires the defendant

to pay restitution for the uncharged forgeries should be vacated because the prior agreement to pay

that amount was related to his plea of guilty and not the petition to revoke his probation. The State

argues that the defendant has procedurally defaulted on this claim under the estoppel rule of invited

error or acquiescence. In response, the defendant argues that this is not invited error, as defense

counsel never agreed that the defendant would pay restitution for the uncharged forgeries as a part

of his argument that the defendant should be resentenced to probation. The defendant claims that

defense counsel only argued that a prison sentence would cause the defendant to “ceas[e]

restitution payments” in general.

¶ 15 The defendant acknowledges that he did not preserve the claim of error regarding the circuit

court’s restitution order. As the error was not preserved, the defendant requests that this court

review the defendant’s claim under second prong plain error because the circuit court’s error

affected the defendant’s substantial rights. The plain-error doctrine is applied where “(1) a clear

5 or obvious error occurred and the evidence is so closely balanced that the error alone threatened

to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a

clear or obvious error occurred and that error is so serious that it affected the fairness of the

defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of

the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

¶ 16 However, plain-error review is forfeited when the defendant invites the error. “[A]

defendant’s invitation or agreement to the procedure later challenged on appeal ‘goes beyond mere

waiver.’ ” People v. Harvey, 211 Ill. 2d 368, 385 (2004). Under the doctrine of invited error, a

defendant may not request to proceed in one manner and later contend on appeal that the course

of action was in error. Harvey, 211 Ill. 2d at 385. In other words, a defendant cannot complain of

an error that the defendant either induced the court to make or where the defendant consented.

In re Detention of Swope, 213 Ill. 2d 210, 217 (2004). It would offend the notions of fair play and

encourage defendants to become duplicitous if a defendant was allowed to use the exact ruling or

action procured in the circuit court as a vehicle for reversal on appeal. Harvey, 211 Ill. 2d at 385.

Thus, these principles apply to preclude plain-error analysis.

¶ 17 In this case, following the State’s petition to revoke probation, the circuit court held a

hearing to sentence the defendant. At the sentencing hearing, defense counsel recommended that

the circuit court keep the defendant “on his current sentence.” In addition to recommending

probation, defense counsel specifically recommended that the defendant be allowed to continue

paying restitution. Notably, the presentence report indicated a total amount of $35,447 was due

and that the defendant was making $100 monthly payments. This total amount included the monies

due for the charged forgeries as well as the uncharged forgeries. In support of his argument

regarding defendant’s sentence, defense counsel argued

6 “that the Court exercise its authority to keep Mr. Kemp[, the defendant,] on his current

sentence, doing that would result in probation terminating today, and then to address the

payment issues, because that is the largest issue that [the State] raises. Mr. Kemp currently

has $2,000 up in bond. We’re suggesting that that $2,000 can be applied in its entirety to—

excuse me—restitution today. That would be a fairly large lump sum payment made today,

and I believe Mr. Kemp is able to increase his monthly payments. I would ask the Court to

have a colloquy with him after sentencing to determine what new monthly payment is

appropriate. But given the factors in this case, I can’t conclude that incarceration is

appropriate, and the only thing that would accomplish is making it more difficult to pay

this restitution, so that’s the defense’s request, Your Honor. Thank you.”

¶ 18 After a thorough review of the record, the defendant offered to pay the full amount of

restitution ordered related to his original, negotiated plea of guilty. The doctrine of invited error

thus prevents the defendant from requesting to proceed in one manner and later arguing on appeal

that the suggested course of action was in error. Thus, the defendant may not now raise on appeal

the error that he invited in the circuit court.

¶ 19 III. CONCLUSION

¶ 20 For the reasons expressed above, the defendant cannot challenge the restitution order as his

counsel recommended payment of the full amount of restitution that was previously ordered at the

first sentencing hearing. Accordingly, we affirm the judgment of the circuit court.

¶ 21 Affirmed.