People v. Larue

2014 IL App (4th) 120595

Opinion

2014 IL App (4th) 120595 Opinion filed May 14, 2014

NO. 4-12-0595 Modified upon denial of rehearing June 24, 2014 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 TERRELL T. LARUE, ) No. 11CF2036 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion. Presiding Justice Appleton and Justice Turner concurred in the judgment and opinion.

OPINION

¶1 On December 13, 2011, the State charged defendant, Terrell T. Larue, with (1)

attempt (armed robbery) (720 ILCS 5/8-4(a), 18-2(a) (West 2010)) (count I); (2) residential

burglary (720 ILCS 5/19-3 (West 2010)) (count II); and (3) aggravated unlawful use of a weapon

(AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)) (count III). Police arrested

defendant on December 12, 2011, and he remained in custody thereafter. On April 27, 2012,

over 120 days after defendant's arrest date, the State also charged defendant with unlawful

possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2010)).

¶2 Defendant's jury trial began on April 30, 2012, and continued on May 2, 2012.

The State elected to proceed only on the residential burglary and UPWF counts. Following the

trial, the jury found defendant guilty of both charges. In June 2012, the trial court sentenced defendant to consecutive sentences of 10 years in prison for UPWF and 15 years in prison for

residential burglary, ordering defendant to pay the "costs of prosecution herein." Following

sentencing, the circuit clerk imposed various fines and fees.

¶3 Defendant appeals, arguing (1) his conviction for UPWF must be vacated because

the State filed the charge after the 120-day speedy-trial term had run on the original charges; (2)

his 10-year sentence for UPWF must be vacated because the sentence violates the proportionate-

penalties clause of the Illinois Constitution; (3) his 10-year sentence for UPWF must be vacated

because it violates the due process clause of the Illinois Constitution and the equal protection

clauses of both the Illinois and United States Constitutions; and (4) the circuit court clerk

imposed six void fines and seven duplicate fees that must be vacated.

¶4 We affirm in part, vacate in part, and remand with directions.

¶5 I. BACKGROUND

¶6 On December 13, 2011, the State charged defendant with (1) attempt (armed

robbery) (720 ILCS 5/8-4(a), 18-2(a) (West 2010)) (count I); (2) residential burglary (720 ILCS

5/19-3 (West 2010)) (count II); and (3) AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West

2010)) (count III), a Class 2 felony carrying a maximum prison sentence of seven years.

Defendant was arrested on December 12, 2011, and remained in custody until his trial. On

February 7, 2012, the State filed a motion for continuance pursuant to section 103-5(c) of the

Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(c) (West 2010)), requesting additional

time to obtain defendant's deoxyribonucleic acid (DNA) sample. The trial court granted the

State's motion over defendant's objection. At the next court date, March 20, 2012, the court set

defendant's trial for April 9, 2012. On April 3, 2012, the court allowed an agreed motion to

vacate the trial setting because defendant's attorney was "under a doctor's care." Thereafter, the

-2- court set defendant's trial for April 30, 2012. On April 27, 2012, three days before trial, the State

charged defendant with UPWF, a Class 3 felony carrying a possible 2- to 10-year prison sentence

(720 ILCS 5/24-1.1(a), (e) (West 2010)) (count IV).

¶7 A. Defendant's Trial

¶8 On April 30, 2012, the parties appeared for defendant's jury trial. Prior to the

trial's commencement, the State dismissed counts I and III. Thereafter, the trial commenced. A

summary of the evidence presented is as follows.

¶9 Timothy McNaught, an Urbana police officer, testified that on December 12,

2011, he was dispatched to apartment 217 of 904 Broadway. When he arrived to apartment 217,

McNaught saw the door was ajar and showed obvious signs of having been forced open. The

apartment was empty. McNaught then started knocking on other apartment doors, and noticed

the door to apartment 218 opened and shut quickly. Police ordered the occupants of 218 to come

out, and Erik Kirk, Sherrick Cooper, Herbert Shah, Darrell Hubbard, and defendant complied.

After the men were handcuffed, patted down, and ushered downstairs, McNaught entered

apartment 218, which belonged to Jamie Calhoun, the mother of defendant's child. During a

protective sweep, McNaught discovered a gun in a utilities closet next to the furnace. McNaught

left the apartment to obtain a search warrant.

¶ 10 Matt Quinley, a detective with the Urbana police department, testified he took

part in executing the search warrant at apartment 218. During the search, officers recovered a

32-inch flat screen television (TV). Denee Thomas, who lived in apartment 217, later verified

the TV as hers, using a remote control that was still in her apartment to turn it on. The officers

also found an Xbox and "a brand new pair of Nike Air Jordans" underneath the kitchen sink.

Mathew Vien, an Illinois State Police crime scene investigator, testified he took photographs

-3- inside apartment 218 of (1) a pair of size 10 Nike shoes, and (2) two 9-millimeter caliber

handguns found on top of the furnace under a T-shirt. One of the guns was a Browning 9-

millimeter semiautomatic handgun with the hammer cocked. When Vien unloaded the gun, it

contained one round in the chamber and a magazine containing several rounds. The other gun

that the officers recovered from the top of the furnace area was a Hi-Point 9-millimeter

semiautomatic pistol. That gun also contained one round in the chamber and a magazine

containing several rounds.

¶ 11 Brian Willfong, a police officer with the City of Urbana, testified he transported

defendant from the 904 Broadway apartments to the Urbana police department. At the station,

Willfong searched defendant and found $1,300 in defendant's left pants pocket. Earlier that day,

officers had conducted a traffic stop outside the 904 Broadway apartments, during which they

found $1,300 on Kaurente Pettigrew, which they later returned. Hubbard, Kirk, Cooper, Shah,

and defendant all watched the officers stop Pettigrew. Pettigrew then went to Thomas's

apartment. According to Hubbard's testimony, the men then decided to break into Thomas's

apartment to "get some money." Hubbard said he and the four other men then returned to

Thomas's apartment, with Hubbard and Shah breaking the apartment door by kicking it in.

¶ 12 David Smysor, an investigator with the Urbana police department, testified he

obtained a recorded statement from defendant. The trial court allowed the State to play the

recorded statement and to provide the jury with copies of a transcript of the statement. In his

statement, defendant denied participating in the robbery and denied that either of the recovered

guns belonged to him. He said he remained in Calhoun's apartment the entire time of the

robbery and only knew the details of the robbery based on what the other men told him.

Defendant saw Hubbard return from Thomas's apartment with a TV and a game system.

-4- Defendant said the longer gun that police recovered belonged to Kirk and the shorter one

belonged to Cooper. He acknowledged holding Kirk's gun earlier in the day but denied ever

handling Cooper's gun. Defendant said he received the $1,300 police found on him from his

mom and other family members.

¶ 13 Hubbard first testified he saw only one gun on the night of the robbery, the gun he

pled guilty to possessing but did not own. However, he then also said he saw two 9-millimeter

guns in Calhoun's apartment, a brown and black one and a black one. Hubbard identified the

brown and black gun in court as the one Cooper had. He denied recognizing the gun depicted in

People's exhibit No. 32, the Hi-Point 9-millimeter semiautomatic pistol. He said the black gun

he remembered seeing was "just on the ground" and had been "passed around." Specifically, he

said Kirk touched it, Cooper "probably" touched it, and he did not know whether defendant or

Shah touched it. Hubbard testified that when the men went to Thomas's apartment, one of them

"probably could have had" a gun but Hubbard did not recall seeing any. Hubbard later denied

the men passed around the guns in Calhoun's apartment. On cross-examination, Hubbard said

the gun he had was a BB gun. Hubbard denied touching either of the guns depicted in the State's

exhibits, and he said none of the men touched his BB gun.

¶ 14 Before pleading guilty, Hubbard had given a taped statement to Quinley, but he

testified he did not remember telling Quinley defendant had the gun with the wooden handle. In

his recorded statement, which was played for the jury, Hubbard told Quinley that Kirk, Cooper,

and defendant each had a gun. He admitted touching one of the guns on an earlier date. He also

said that, earlier in the evening, defendant said they needed money and needed "a lick."

¶ 15 Correctional officers Shane McPheron and James Spence each took defendant's

fingerprints. John Carnes, an expert in fingerprint examination, testified he could not find any

-5- fingerprints suitable for comparison on the guns, shoes, shoebox, or Xbox that officers had

recovered from apartment 218. Carnes did, however, find eight fingerprints suitable for

comparison on the TV. Carnes opined that six of the prints belonged to defendant.

¶ 16 Following the witnesses' testimony, the trial court took judicial notice of

defendant's prior felony conviction of unlawful possession of a controlled substance. Thereafter,

the jury found defendant guilty of UPWF and residential burglary.

¶ 17 B. Sentencing Hearing

¶ 18 In May 2012, defendant filed a motion for a new trial or, in the alternative, for

judgment n.o.v. At a June 2012 hearing, the trial court denied defendant's motion and proceeded

to sentencing. Correctional officers at the county jail testified (1) heroin was found in

defendant's cell the day after his arrest; (2) defendant unbolted a stool and used a portion of the

stool to dig into concrete and caulking in an attempt to escape; (3) defendant threatened to shoot

one of the guards in the mouth; and (4) defendant flooded his cell by stuffing a blanket into the

toilet and flushing the toilet. Defendant made a statement, apologizing for the damage to

Thomas's home.

¶ 19 The trial court sentenced defendant to 10 years in prison for UPWF and 15 years

in prison for residential burglary, ordering the sentences to run consecutively. The court's

written sentencing order also required defendant to "pay costs of prosecution herein." In

announcing defendant's sentence, the court found defendant's young age to be the only mitigating

factor present. In aggravation, the court noted (1) defendant had a prior history of delinquency

and criminal activity, and (2) the court needed to deter other individuals from committing a

similar crime. The court also pointed out that correctional officers testified defendant brought

heroin into the jail, tried to escape, and threatened to shoot an officer in the mouth. A computer

-6- printout reveals that, at some point, the circuit clerk imposed various assessments for each of

defendant's two convictions, including the following: (1) a $30 juvenile expungement fine (730

ILCS 5/5-9-1.17(a) (West 2010)), (2) a $10 "Traffic/Criminal" fine surcharge (730 ILCS 5/5-9-

1(c) (West 2010)), (3) a $10 State Police operations fine (705 ILCS 105/27.3a (West 2010)), (4)

a $5 document storage fee, (5) a $10 automation fee, (6) a $100 circuit clerk fee, (7) a $25 court

security fee, (8) a $10 arrestee's medical assessment, (9) a $50 court finance fee, and (10) a $40

State's Attorney fee. This appeal followed.

¶ 20 II. ANALYSIS

¶ 21 On appeal, defendant argues (1) his conviction for UPWF must be vacated

because the State filed the charge after the 120-day speedy-trial term had run on the original

charges; (2) his 10-year sentence for UPWF must be vacated because the sentence violates the

proportionate-penalties clause of the Illinois Constitution; (3) his 10-year sentence for UPWF

must be vacated because it violates the due process clause of the Illinois Constitution and the

equal protection clauses of the Illinois and United States Constitutions; and (4) the circuit court

clerk imposed six void fines and seven duplicate fines.

¶ 22 Following briefing in this case, we ordered the parties to submit supplemental

briefs discussing the effect, if any, that the supreme court's decision in People v. Aguilar, 2013

IL 112116, had on defendant's arguments. The parties submitted briefs as requested, agreeing

that Aguilar has no effect on defendant's arguments because, although the supreme court initially

found the entire AUUW statute unconstitutional in its original Aguilar decision, it subsequently

modified its opinion upon denial of rehearing to make clear that it was finding only the Class 4

felony form of the AUUW statute unconstitutional. We agree with both parties that Aguilar, as

-7- modified upon denial of rehearing, has no effect on defendant's arguments. Accordingly, we turn

to defendant's arguments.

¶ 23 A. Defendant's Speedy-Trial Claim

¶ 24 Defendant first asserts his conviction for UPWF (count IV) must be vacated

because the State filed the charge, which was based on the same conduct as AUUW (count III),

after the 120-day speedy-trial term had run on the original charges. Defendant acknowledges

that he did not object to the UPWF count at trial but argues the speedy-trial issue should be

reviewed (1) under the plain-error doctrine or (2) because his attorney was ineffective for failing

to object to the additional charge. Whether reviewing the issue for plain error or to determine

whether counsel was ineffective, we must first determine whether defendant's speedy-trial right

was violated. People v. Mays, 2012 IL App (4th) 090840, ¶ 42, 980 N.E.2d 166.

¶ 25 A defendant possesses both constitutional and statutory rights to a speedy trial.

People v. Phipps, 238 Ill. 2d 54, 65, 933 N.E.2d 1186, 1193 (2010). In this case, defendant

asserts only that his statutory right to a speedy trial was violated. Illinois's speedy-trial statute

provides that a defendant in custody must be brought to trial within 120 days of the day he was

brought into custody. 725 ILCS 5/103-5(a) (West 2010). The speedy-trial statute tolls during

any period of delay occasioned by the defendant. People v. Woodrum, 223 Ill. 2d 286, 299, 860

N.E.2d 259, 269 (2006). A defendant not tried within the statutory period must be released from

custody and have the charges against him dismissed. 725 ILCS 5/103-5(d) (West 2010); People

v. Hunter, 2013 IL 114100, ¶ 10, 986 N.E.2d 1185.

¶ 26 Pursuant to the compulsory joinder statute (720 ILCS 5/3-3(b) (West 2010)), the

State must prosecute in a single criminal case all known offenses within the jurisdiction of a

single court that " 'are based on the same act.' " Hunter, 2013 IL 114100, ¶ 10, 986 N.E.2d 1185

-8- (quoting 720 ILCS 5/3-3(b) (West 2008)). The Illinois Supreme Court has explained the

relationship between the compulsory joinder statute and the speedy-trial statute as follows.

"Where new and additional charges arise from the same facts as did the original charges and the

State had knowledge of these facts at the commencement of the prosecution, the time within

which trial is to begin on the new and additional charges is subject to the same statutory

limitation that is applied to the original charges." (Internal quotation marks omitted.) Hunter,

2013 IL 114100, ¶ 10, 986 N.E.2d 1185. Where the initial and subsequent charges are subject to

compulsory joinder, delays attributable to the defendant on the initial charge are not attributable

to the defendant on the new and additional charges " 'because these new and additional charges

were not before the court when those continuances were obtained.' " Phipps, 238 Ill. 2d at 66,

933 N.E.2d at 1193 (quoting People v. Williams, 94 Ill. App. 3d 241, 249, 418 N.E.2d 840, 846

(1981)). The purpose of the so-called Williams rule is to prevent "trial by ambush" wherein

"[t]he State could lull the defendant into acquiescing to pretrial delays on pending charges, while

it prepared for a trial on more serious, not-yet-pending charges." (Internal quotation marks

omitted.) Woodrum, 223 Ill. 2d at 300, 860 N.E.2d at 270. This court has made clear, however,

that the Williams rule does not apply to included offenses because an indictment for an offense

serves as an indictment for all included offenses. People v. Callahan, 334 Ill. App. 3d 636, 642,

778 N.E.2d 737, 743 (2002). Thus, included offenses "are deemed to have been before the court

when earlier continuances were granted." Id.

¶ 27 Here, the parties dispute whether the later UPWF charge was a "new and

additional" charge or merely an included offense of the original AUUW charge. We review de

novo whether the UPWF charge is new and additional. Phipps, 238 Ill. 2d at 67, 933 N.E.2d at

1194. To do so, we must compare the original and subsequent charges. Id.

-9- ¶ 28 The State's original charge of AUUW was based on defendant, having previously

been convicted of a felony, knowingly carrying on or about his person, when not on his own land

or in his own abode or place of business, a firearm that was uncased, loaded, and immediately

accessible. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010). The State's later charge of

UPWF was based on defendant, after having been convicted of a felony, knowingly possessing

on or about his person any firearm. See 720 ILCS 5/24-1.1(a) (West 2010).

¶ 29 Thus, both the AUUW and UPWF charges were premised on defendant

knowingly possessing a firearm after having been previously convicted of a felony. Defendant

acknowledges that the conduct alleged in the original count, AUUW, encompassed the conduct

alleged in UPWF. However, defendant argues that the State's tactic of substituting UPWF for

AUUW three days before trial prejudiced defendant in that it stripped defendant of his defense

on the additional element in AUUW not present in UPWF—namely, that the firearm at issue was

"uncased, loaded, and immediately accessible." As the State points out, however, an indictment

for a particular offense serves an indictment for all included offenses. See Callahan, 334 Ill.

App. 3d at 642, 778 N.E.2d at 743. What defenses the defendant may or may not have as a result

of the subsequent charge is not part of our analysis for purposes of compulsory joinder and the

statutory right to a speedy trial. Every element of UPWF is contained within AUUW and it is

impossible to commit AUUW without committing UPWF. See id. Therefore, the subsequent

UPWF charge is not a "new and additional" charge subject to the rule announced in Williams.

Because the State charged defendant with AUUW, the lesser offense of UPWF was before the

court when the court considered requests to continue the case. See People v. Dressler, 317 Ill.

App. 3d 379, 387, 739 N.E.2d 630, 637 (2000). Moreover, "[t]he question for a speedy-trial

- 10 - analysis is whether defendant had adequate notice of the subsequent charges to allow him to

prepare and present a defense." Mays, 2012 IL App (4th) 090840, ¶ 45, 980 N.E.2d 166.

¶ 30 Defendant asserts that based on Phipps, we are required to compare the respective

penalties of the two charges in determining whether UPWF is a new and additional charge.

Defendant argues that because UPWF carries a greater maximum penalty than AUUW, the

subsequent charge of UPWF is a new and additional charge. Based on defendant's criminal

history, AUUW was a Class 2 felony carrying a prison term of between three and seven years.

720 ILCS 5/24-1.6(d)(3) (West 2010). By contrast, UPWF was a Class 3 felony punishable by a

prison sentence of up to 10 years. 720 ILCS 5/24-1.1(e) (West 2010).

¶ 31 In Phipps, the supreme court concluded that the original reckless homicide charge

provided defendant adequate notice of the subsequent aggravated driving under the influence

charge. Phipps, 238 Ill. 2d at 70, 933 N.E.2d at 1195. In reaching its decision, the supreme

court reasoned that the original indictment and subsequent information alleged the same conduct.

Id. at 68, 933 N.E.2d at 1194. The court went on to note that, as charged by the State, reckless

homicide and aggravated driving under the influence "had essentially the same elements and

provided the same penalty." Id.

¶ 32 Although the supreme court noted the two charges carried the same penalty, the

Phipps decision makes clear the supreme court's determination turned on whether defendant had

notice of the subsequent charge. Indeed, the court stated "[t]he critical point" for its speedy-trial

analysis was "whether the original indictment gave defendant adequate notice to prepare his

defense to the subsequent charge." Id. at 69, 933 N.E.2d at 1195. In applying the same

reasoning to our case, we conclude no speedy-trial violation occurred when the State added the

UPWF charge because, although UPWF carried a greater maximum sentence, all of the elements

- 11 - of UPWF were contained within AAUW and, thus, defendant was on notice that he should

prepare a defense to UPWF. See People v. Arndt, 50 Ill. 2d 390, 395, 280 N.E.2d 230, 233

(1972) (the defendant could not claim surprise when the State added a count for involuntary

manslaughter because defendant was at all times subject to a conviction for involuntary

manslaughter under the original murder charge). Given defendant does not assert that the trial on

the original charge took place in violation of his statutory right to a speedy trial, all delays

attributable to him on the original charge would apply to the subsequent UPWF charge.

Therefore, no speedy-trial violation occurred.

¶ 33 Because no speedy-trial violation occurred, defendant has failed to establish he

was prejudiced by counsel's failure to object to or file a motion to dismiss the UPWF charge;

thus, we reject defendant's ineffective assistance of counsel claim. Phipps, 238 Ill. 2d at 71, 933

N.E.2d at 1196. Likewise, because defendant cannot establish any error occurred, no further

plain-error analysis is required. See People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403,

411 (2007) (first step under the plain-error doctrine is to determine whether error occurred).

¶ 34 B. Defendant's Proportionate-Penalties-Clause Claim

¶ 35 Defendant next asserts his 10-year sentence for UPWF violates the proportionate

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Specifically, defendant

argues that because UPWF is a lesser-included offense of AUUW but is punished more harshly

than AUUW, his 10-year sentence for UPWF must be vacated.

¶ 36 A statute violates the proportionate-penalties clause of the Illinois Constitution if

it contains the same elements as another offense but carries a greater sentence. People v. Sharpe,

216 Ill. 2d 481, 521, 839 N.E.2d 492, 517 (2005). This is so because if the legislature

determines the exact same elements merit two different punishments, then one of those

- 12 - punishments has not been set according to the seriousness of the offense. Id. at 522, 839 N.E.2d

at 517.

¶ 37 Defendant acknowledges UPWF and AUUW are not truly "identical."

Specifically, AUUW contains an additional element that the defendant's firearm be uncased,

immediately accessible, and loaded. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), 24-1.1(a) (West

2010). This additional element notwithstanding, defendant claims that treating the two offenses

as identical for proportionate-penalties purposes is consistent with both the purpose of the

proportionate-penalties clause and the supreme court's decision in Sharpe. We disagree.

¶ 38 In People v. Dunn, 365 Ill. App. 3d 292, 294-95, 849 N.E.2d 148, 150 (2006), the

defendant argued the punishment applicable to predatory criminal sexual assault of a child

violated the proportionate-penalties clause because it was harsher than the penalties for offenses

with identical elements, namely, predatory criminal sexual assault of a child while armed with a

firearm and predatory criminal sexual assault of a child involving the discharge of a firearm.

Our court rejected the defendant's argument, concluding the offenses did not have identical

elements and, thus, the defendant failed to show the punishment for predatory criminal sexual

assault of a child violated the proportionate-penalties clause. Id. at 296, 849 N.E.2d at 151.

Defendant urges us to overrule our decision in Dunn because it relied on People v. Espinoza, 184

Ill. 2d 252, 702 N.E.2d 1275 (1998), which did not involve offenses where the lesser-included

offense carried a greater penalty than the greater encompassing offense. We decline to overrule

Dunn, as we find it is consistent with the supreme court's directive in Sharpe to abandon cross-

comparison proportionate-penalties analysis. See Sharpe, 216 Ill. 2d at 519, 839 N.E.2d at 515-

16.

- 13 - ¶ 39 Therefore, we reject defendant's claim that his 10-year sentence for UPWF

violates the proportionate-penalties clause.

¶ 40 C. Defendant's Due Process and Equal Protection Claims

¶ 41 Defendant next argues his 10-year sentence for UPWF violates the due process

clause of the Illinois Constitution and the equal protection clauses of the United States and

Illinois Constitutions.

¶ 42 1. Due Process Clause

¶ 43 Defendant claims his sentence violates the due process clause of the Illinois

Constitution (Ill. Const. 1970, art. I, § 2) because UPWF is a lesser-included offense of AUUW

but is punished more harshly than AUUW.

¶ 44 "Under the State's police power, the legislature possesses wide discretion in

prescribing penalties for defined offenses." People v. Dixon, 359 Ill. App. 3d 938, 942, 835

N.E.2d 925, 929 (2005). Nonetheless, "[t]he legislature's power to fix penalties is *** subject to

the constitutional proscription which prohibits the deprivation of liberty without due process of

law." People v. Bradley, 79 Ill. 2d 410, 417, 403 N.E.2d 1029, 1032 (1980). In considering a

due process challenge, our inquiry is whether the penalty is reasonably designed to remedy the

particular evil that the legislature was targeting. Sharpe, 216 Ill. 2d at 523, 839 N.E.2d at 518.

We will not invalidate a statute "unless the challenged penalty is clearly in excess of the very

broad and general constitutional limitations applicable." (Internal quotation marks omitted.)

Dixon, 359 Ill. App. 3d at 942, 835 N.E.2d at 929.

¶ 45 Prior to 2000, section 24-1.1(e) provided only that UPWF was a Class 3 felony.

720 ILCS 5/24-1.1(e) (West 1998). Thus, a person convicted of UPWF was subject to a

maximum regular sentence of 5 years in prison and a maximum extended-term sentence of 10

- 14 - years in prison. 730 ILCS 5/5-8-1(a)(6), 5-8-2(a)(5) (West 1998). Public Act 91-544, which

became effective on January 1, 2000, modified section 24-1.1(e) to provide that a person guilty

of UPWF "if sentenced to a term of imprisonment, shall be sentenced to no less than 2 years and

no more than 10 years." Pub. Act 91-544, § 5 (eff. Jan. 1, 2000). Thus, after 2000, a person

convicted of UPWF could be subject to a maximum regular sentence of 10 years without the

presence of an aggravating factor.

¶ 46 Public Act 91-690, effective April 13, 2000, enacted section 24-1.6 of the

Criminal Code of 1961, creating the offense of AUUW. Pub. Act 91-690, § 10 (eff. Apr. 13,

2000). AUUW committed by a felon was a Class 2 felony; thus, a felon convicted of AUUW

was subject to a maximum regular sentence of no more than 7 years' imprisonment or a

maximum extended-term sentence of no more than 14 years' imprisonment with the presence of

an aggravating factor. 720 ILCS 5/24-1.6(d) (West 2000); 730 ILCS 5/5-8-1(a)(5), 5-8-2(a)(4)

(West 2000). Eventually, in 2006, the legislature made the prison term for AUUW mandatory.

Pub. Act 94-72, § 5 (eff. Jan. 1, 2006). At the time of defendant's offense, a prison term was not

mandatory for UPWF. 720 ILCS 5/24-1.1(e) (West 2010); see also People v. Johnson, 237 Ill.

2d 81, 98, 927 N.E.2d 1179, 1190 (2010). AUUW carried a mandatory supervised release

(MSR) term of two years, while UPWF was subject to a one-year MSR term.

¶ 47 In support of his claim that his 10-year sentence for UPWF violates the due

process clause, defendant cites Bradley, in which the supreme court found a due process clause

violation where possession of a controlled substance was a Class 3 felony subject to an

indeterminate sentence of 1 to 10 years but delivery of that same substance was only a Class 4

felony subject to an indeterminate sentence of 1 to 3 years. Bradley, 79 Ill. 2d at 414-18, 403

N.E.2d at 1030-32. The supreme court reasoned the Illinois Controlled Substances Act (Ill. Rev.

- 15 - Stat. 1977, ch. 56 1/2, ¶ 1100 et seq. (now 720 ILCS 570/100 et seq. (West 2010))) expressly

stated the General Assembly's intent was to "penalize most heavily the illicit traffickers or

profiteers of controlled substances." (Internal quotation marks omitted.) Id. at 418, 403 N.E.2d

at 1032. Accordingly, punishing the possession of a controlled substance more harshly than the

delivery of that substance directly contravened the express intent of the legislature and violated

the due process clause of the Illinois Constitution. Id.

¶ 48 Here, defendant has failed to show his sentence for UPWF is contrary to the

legislative's intent in enacting the statute. Indeed, unlike Bradley, defendant has provided no

citation to an express statement of the legislative intent in enacting UPWF or AUUW. Thus,

defendant has failed to show the penalty for UPWF is not reasonably designed to remedy the

particular evil the legislature was targeting such that a due process violation has occurred.

¶ 49 2. Equal Protection Clauses

¶ 50 Defendant also contends his 10-year sentence for UPWF violates the equal

protection clauses of both the Illinois and United States Constitutions (U.S. Const., amend. XIV,

§ 1; Ill. Const. 1970, art. I, § 2) because by enacting different sentences for UPWF and AUUW,

the legislature is treating those who have committed similar offenses dissimilarly.

¶ 51 The equal protection clause requires the government to treat similarly situated

individuals in a similar fashion, unless the government can show an appropriate reason to treat

the individuals differently. People v. Masterson, 2011 IL 110072, ¶ 24, 958 N.E.2d 686. The

applicable level of scrutiny we apply to an equal protection challenge is determined by the nature

of the right involved. Id. Here, defendant concedes his case does not involve a fundamental

right and the individuals at issue here, convicted felons illegally possessing a firearm, are not a

- 16 - suspect class. Thus, we apply a rational basis standard, under which we must determine whether

the statute bears a rational relationship to a legitimate government purpose. Id.

¶ 52 "[I]t is axiomatic that an equal protection claim requires a showing that the

individual raising it is similarly situated to the comparison group." Id. ¶ 25, 958 N.E.2d 686.

Defendant must make a showing that he is similarly situated to those against whom he seeks

comparison. If the defendant is unable to make this showing, his equal protection claim fails and

application of the rational basis standard is not required. Id.

¶ 53 In Bradley, the supreme court rejected the argument that a defendant convicted of

possession of a controlled substance was similarly situated to one convicted of delivery of a

controlled substance, because "[b]y the very definition of the offenses, those accused of one

would be dissimilarly situated from those accused of the other." Bradley, 79 Ill. 2d at 417, 403

N.E.2d at 1032. Given that AUUW and UPWF are by their respective definitions different,

defendant cannot meet his burden of showing his is similarly situated. Under the holding in

Bradley, defendant's assertion that one convicted of UPWF is similarly situated to one convicted

of AUUW fails.

¶ 54 D. Defendant's Claims Concerning Void and Duplicate Fines

¶ 55 Finally, defendant argues this court must vacate (1) six fines imposed by the

circuit clerk, as the clerk lacked authority to impose the fines, and (2) seven duplicate fees.

Further, defendant asserts that, should the trial court impose fines on remand, he should receive

$5 per diem credit against those fines (725 ILCS 5/110-14 (West 2010)). The State concedes

fines must be imposed judicially and that defendant's case should be remanded for judicial

imposition of mandatory fines, subject to available incarceration credit, as well as the elimination

of duplicate fees. We accept the State's concession in part.

- 17 - ¶ 56 In this case, the trial court ordered only that defendant pay "all costs of

prosecution herein." A computer printout, however, reveals that for each of defendant's two

convictions, the circuit clerk imposed the following assessments, which constitute fines: (1) a

$30 juvenile expungement fine (730 ILCS 5/5-9-1.17(a) (West 2010)) (listed as three separate

$10 charges for the State Police Services Fund, State's Attorney's Office Fund, and Circuit Clerk

Operation and Administration Fund (730 ILCS 5/5-9-1.17(b) (West 2010)); (2) a $10

"Traffic/Criminal" fine surcharge (730 ILCS 5/5-9-1(c) (West 2010)); and (3) a $10 State Police

operations fine (705 ILCS 105/27.3a (West 2010)). Because the imposition of a fine is a judicial

act, and the circuit clerk has no authority to levy fines, any fines imposed by the circuit clerk are

void from their inception. People v. Williams, 2013 IL App (4th) 120313, ¶ 16, 991 N.E.2d 914.

Thus, we vacate the circuit clerk's assessment of fines.

¶ 57 The clerk also imposed, for each of the two convictions, a $10 arrestee's medical

assessment. Although defendant categorizes this assessment as a "fee," we note an arrestee's

medical assessment may be imposed regardless of whether a defendant actually incurs an injury

requiring medical care. People v. Unander, 404 Ill. App. 3d 884, 890, 936 N.E.2d 795, 800

(2010). Therefore, the arrestee's medical assessment is a fine. See People v. Jake, 2011 IL App

(4th) 090779, ¶ 29, 960 N.E.2d 45 (An assessment is a fee only if it is intended to reimburse the

State for a cost incurred in the defendant's prosecution.). Because the circuit clerk lacks

authority to impose fines, we vacate the arrestee's medical assessment.

¶ 58 In addition, the clerk imposed the following fees for each of the two convictions:

(1) a $5 document storage fee, (2) a $10 automation fee, (3) a $100 circuit clerk fee, (4) a $25

court security fee, (5) a $50 court finance fee, and (6) a $40 State's Attorney fee. In People v.

Alghadi, 2011 IL App (4th) 100012, ¶ 22, 960 N.E.2d 612, we stated that a defendant may only

- 18 - be assessed one of each of these fees, even when a defendant is charged with multiple counts

within the same case number. Subsequent to Alghadi, however, the Second District adopted a

different approach to addressing duplicate fees. In both People v. Martino, 2012 IL App (2d)

101244, 970 N.E.2d 1236, and People v. Pohl, 2012 IL App (2d) 100629, 969 N.E.2d 508, the

Second District examined the language of the statute or ordinance imposing each fee to ascertain

whether that fee could be imposed more than once. In doing so, the Second District concluded

some of the fees could be assessed multiple times in one case. See Martino, 2012 IL App (2d)

101244, ¶ 56, 970 N.E.2d 1236 ("[t]he imposition of multiple County Jail Medical Costs Fund

fees, court finance fees, State's Attorney's fees, and drug court/mental health court fines was

proper").

¶ 59 In light of the Second District's decisions, we decline to apply Alghadi and will

instead examine the language of the statutes authorizing the fees at issue in this case to determine

whether duplicate fees could be imposed. In construing the statutes, our "primary objective is to

ascertain and give effect to the legislature's intent, keeping in mind that the best and most reliable

indicator of that intent is the statutory language itself, given its plain and ordinary meaning."

People v. Elliott, 2014 IL 115308, ¶ 11, 4 N.E.3d 23. Our review is de novo. Id.

¶ 60 The record indicates the circuit clerk imposed six duplicate fees in this case. We

address each fee in turn.

¶ 61 1. Document Storage Fee

¶ 62 First, the clerk imposed two $5 document storage fees. To defray the costs of a

document storage system, section 27.3c(a) of the Clerks of Courts Act (Clerks Act) (705 ILCS

105/27.3c(a) (West 2010)) authorizes the clerk to charge a fee of between $1 and $15, which

"shall be paid *** by the defendant in any felony, misdemeanor, traffic, ordinance, or

- 19 - conservation matter." (Emphasis added.) 705 ILCS 105/27.3c(a) (West 2010). In Pohl, the

Second District concluded that the word "matter" could be used as a synonym for "case" or to

refer to an allegation in a pleading. Pohl, 2012 IL App (2d) 100629, ¶ 21, 969 N.E.2d 508

(citing Black's Law Dictionary 999 (8th ed. 2004)). It reasoned that "matter" was synonymous

with "case" because one would not normally speak of a defendant charged with a crime as the

defendant "in" an allegation. Pohl, 2012 IL App (2d) 100629, ¶ 21, 969 N.E.2d 508. We find

the Second District's reasoning persuasive and thus conclude "matter" signifies "case";

accordingly, defendant could be assessed only one fee for his case, even though it resulted in

multiple convictions.

¶ 63 2. Automation Fee

¶ 64 The clerk also imposed two $10 automation fees. Like section 27.3c, section

27.3a of the Clerks Act allows a circuit clerk, in order to defray the cost of maintaining an

automated system, to collect a $1 to $15 fee, which "shall be paid *** by the defendant in any

felony, traffic, misdemeanor, municipal ordinance, or conservation case." (Emphasis added.)

705 ILCS 105/27.3a(1) (West 2010). Thus, a defendant can only be assessed one automation fee

per case. Accordingly, we vacate the duplicate automation fee.

¶ 65 3. Circuit Clerk Fee

¶ 66 The clerk also imposed two $100 circuit clerk fees. Section 27.1a(w)(1)(A) of the

Clerks Act provides, in relevant part, 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:

- 20 - (A) Felony complaints, a minimum of $40

and a maximum of $100." 705 ILCS

105/27.1a(w)(1)(A) (West 2010).

Thus, the plain language of section 27.1a(w)(1)(A) of the Clerks Act entitles the clerk to collect

one fee per felony complaint. Because the counts the State filed constituted one felony

complaint, the clerk could impose only one circuit clerk fee. Accordingly, we vacate one of the

two circuit clerk fees.

¶ 67 4. Court Security Fee

¶ 68 The record likewise demonstrates the circuit clerk imposed two $25 court security

fees. Section 5-1103 of the Counties Code (55 ILCS 5/5-1103 (West 2010)) authorizes a county

board to enact a fee to defray court security expenses, specifying that "[i]n criminal, local

ordinance, county ordinance, traffic and conservation cases, such fee shall be assessed against

the defendant." (Emphasis added.) 55 ILCS 5/5-1103 (West 2010). Because the statute refers to

cases and not individual convictions, the clerk could only impose one court security fee here.

Pohl, 2012 IL App (2d) 100629, ¶ 12, 969 N.E.2d 508. Thus, we vacate the duplicate security

fee.

¶ 69 5. Court Finance Fee

¶ 70 The circuit clerk additionally imposed two $50 court finance fees. Section 5-

1101(c) of the Counties Code provides that a county board may enact "[a] fee to be paid by the

defendant on a judgment of guilty or a grant of supervision," which "for a felony" is $50. 55

ILCS 5/1101(c) (West 2010). Thus, the plain language of section 5-1101(c) of the Counties

Code allows a clerk to assess a fee on each judgment of guilty or grant of supervision. Here, the

- 21 - jury found defendant guilty of two counts; accordingly, the circuit clerk properly assessed two

$50 court finance fees—one $50 fee for each of defendant's two counts.

¶ 71 6. State's Attorney Fee

¶ 72 Finally, the clerk assessed duplicate $40 State's Attorney fees. Section 4-2002(a)

of the Counties Code entitles the State's Attorney to the following: "For each conviction in

prosecutions on indictments for first degree murder, second degree murder, involuntary

manslaughter, criminal sexual assault, aggravated criminal sexual assault, aggravated criminal

sexual abuse, kidnapping, arson and forgery, $30. All other cases punishable by imprisonment in

the penitentiary, $30." 55 ILCS 5/4-2002(a) (West 2010). As the Second District noted in

Martino, section 4-2002(a) thus provides that the State's Attorney fee may be assessed "on a per-

conviction basis." Martino, 2012 IL App (2d) 101244, ¶ 47, 970 N.E.2d 1236. Accordingly, the

clerk's imposition of two State's Attorney fees was proper.

¶ 73 To summarize, we conclude the circuit clerk could impose only one of each of the

following fees: (1) the document storage fee, (2) the automation fee, (3) the circuit clerk fee, and

(4) the court security fee. However, the clerk could impose two court finance fees and two

State's Attorney fees based on defendant being convicted of two felony counts.

¶ 74 III. CONCLUSION

¶ 75 For the reasons stated, we affirm the trial court's judgment, vacate the improperly

imposed fines and fees, and remand with directions for the trial court to impose any mandatory

fines as authorized at the time of the offense and apply defendant's per diem credit against any

creditable fines imposed on remand. As part of our judgment, we award the State its $50

statutory fee against defendant as costs of this appeal. 55 ILCS 5/4-2002(a) (West 2010).

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

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