People v. Vaughn

2020 IL App (5th) 180003-U

Opinion

NOTICE 2020 IL App (5th) 180003-U NOTICE Decision filed 07/28/20. The This order was filed under text of this decision may be NOS. 5-18-0003 & 5-18-0004 cons. Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jefferson County. ) v. ) Nos. 16-CF-406, ) 16-CF-407 WILLIE VAUGHN, ) ) Honorable ) Jerry E. Crisel, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Cates and Boie concurred in the judgment.

ORDER

¶1 Held: Because the trial judge’s restitution order in this case failed to set out a method and manner of payment which took into account the defendant’s ability to pay, and failed to set a time period for payment, we vacate the order and remand for proceedings in compliance with the Unified Code of Corrections (730 ILCS 5/5-5-6 (West 2016)).

¶2 In this consolidated appeal, the defendant, Willie Vaughn, appeals the restitution

order of the circuit court of Jefferson County. For the following reasons, we vacate the

order and remand for proceedings in compliance with the relevant statutory provisions.

1 ¶3 I. BACKGROUND

¶4 The facts necessary to our disposition of this appeal follow. On October 17, 2016,

the defendant was charged by information in case number 16-CF-406 with one count of

residential burglary, a Class 1 felony. Also on October 17, 2016, the defendant was

charged by information in case number 16-CF-407 with, inter alia, unlawful possession

with intent to deliver a controlled substance, which likewise is a Class 1 felony. On

October 21, 2016, he was indicted on the same offenses. On May 4, 2017, the defendant

entered an open plea of guilty to the residential burglary charge in 16-CF-406. The

factual basis given for the open plea asserted that, inter alia, the defendant stole a number

of gold coins from the victim, for whom the defendant previously had done work. No

information was presented at the guilty plea hearing as to the monetary value of the gold

coins.

¶5 On August 11, 2017, the defendant entered an open plea of guilty to the unlawful

possession with intent to deliver a controlled substance charge in 16-CF-407. The factual

basis given for the plea asserted that, inter alia, when the defendant was arrested at his

home pursuant to an investigation of the charges in 16-CF-406, police discovered $4340

in cash and several dozen capsules containing a total of less than 15 grams of heroin,

which led to the charges in 16-CF-407. An additional count in 16-CF-407, and an

additional unrelated charge, were dismissed as a result of the plea agreement between the

parties.

¶6 Thereafter, also on August 11, 2017, a sentencing hearing was held in both 16-CF-

406 and 16-CF-407. The 68-year-old victim in 16-CF-406 testified that the gold coins 2 stolen from him had a monetary value of “over a hundred thousand dollars,” although he

noted that the value fluctuated on a daily basis with the price of gold. He testified that

aside from the “bullion coins” which he used to help fund his retirement, he also had

“collector coins” that the defendant stole, which the victim had been collecting since

approximately 1970 and had planned to leave to his heirs. He testified that the theft of the

coins had deprived him of “a big chunk” of his planned retirement funds, and testified as

to the overall financial impact the theft had on him, which included the fact that he had

been forced to sell items and stocks to pay his regular bills and avoid going into debt.

¶7 The defendant was then given the opportunity to make a statement in allocution.

The defendant apologized to the victim. The defendant stated that the cash that had been

seized when he was arrested was money he had been saving from his paychecks as a

maintenance worker at a local hotel. He asked the court if that money could be given to

the victim as restitution for the victim’s losses. In argument, the State requested a

sentence of “no less than 18 years” of imprisonment, “a $2,000 drug assessment” in 16-

CF-407, “court costs only in both matters, and restitution to [the victim] of a hundred

thousand dollars, even though the likelihood of him ever getting that is probably

minimal.” The defendant argued that he had a solid employment history, and that it was

his drug addiction that was responsible for his criminal behavior, which consisted of

nonviolent offenses. The defendant requested a sentence of “somewhere more in the

range of 6 to 8 years” of imprisonment, along with drug addiction treatment while

incarcerated. Counsel for the defendant noted the defendant’s “willingness to pay back

restitution,” and requested restitution “in the $60,000 range,” which he argued was more 3 consistent with the valuation of the gold coins he had previously been given by the State.

The trial judge subsequently noted that he thought the amount of restitution ordered

“really isn’t going to make much difference because I don’t expect you to ever pay it

back.” He thereafter stated, “I’m going to order restitution just so in case you win the

lottery someday, you’ll have to pay him.” Noting that the defendant would be serving his

sentences at 50%, with the ability to earn “day-for-day good time” credit, the trial judge

sentenced the defendant to 20 years of imprisonment on the residential burglary

conviction in 16-CF-406 and 15 years of imprisonment on the unlawful possession with

intent to deliver a controlled substance conviction in 16-CF-407, to be served

concurrently. He stated he would “set the restitution at $100,000” because “that’s the

only evidence we have about that,” and reiterated, “I don’t anticipate that will be paid,

but if—if something major happens someday, if you have some property, land or

whatever, it’s a judgment.”

¶8 On August 15, 2017, the trial judge entered his written sentencing order, in which

the defendant was sentenced to 20 years of imprisonment on the residential burglary

conviction in 16-CF-406 and 15 years of imprisonment on the unlawful possession with

intent to deliver a controlled substance conviction in 16-CF-407, to be served

concurrently and followed by 3 years of mandatory supervised release. In addition, in 16-

CF-406, restitution in the amount of $100,000 was ordered, as well as court costs, with

the $4340 in cash that was confiscated from the defendant in 16-CF-407 to be applied

toward the restitution ordered in 16-CF-406. In 16-CF-407, court costs and a “drug

assessment fine” of $2000 were ordered. The combined sentencing order further stated 4 that the defendant was to “personally appear in court within 30 days of his release from

[prison] and establish a time payment order unless paid in full.”

¶9 On September 7, 2017, the defendant filed a combined motion to reconsider

sentence in both cases, in which he asked that his terms of imprisonment be reduced. The

motion did not refer to, or in any way mention, the restitution elements of his sentencing

in the two cases. The motion was denied, following a hearing at which counsel for the

defendant orally requested that the amount of restitution be lowered, along with the terms

of incarceration. Subsequently, the defendant filed timely notices of appeal in both cases,

and this court consolidated the appeals for purposes of, inter alia, rendering this decision.

¶ 10 II. ANALYSIS

¶ 11 On appeal, the defendant asks this court to vacate the restitution order entered

against him, contending that the trial judge “failed to set out a method and manner of

payment which took into account [the defendant’s] ability to pay, and failed to set a time

period for payment, as required by the statute.” Specifically, the defendant takes issue

with the order because the order fails to (1) “specify whether [he] is required to pay the

restitution in a lump sum or in installments,” (2) “set a time period during which the

restitution [is] to be paid,” and (3) “consider [his] ability to pay.” Because the defendant

argues not that the trial judge abused his discretion in determining the amount of the

restitution order, but instead that the trial judge’s order failed to meet the statutory

requirements for an order of restitution, we agree with the defendant that the matter

before us presents a question of law, which we review de novo. See, e.g., People v.

Felton, 385 Ill. App. 3d 802, 805 (2008). We note that an order of restitution that does 5 not comply with the statutory requirements of section 5-5-6 of the Unified Code of

Corrections (Code) (730 ILCS 5/5-5-6 (West 2016)) must be vacated and remanded for

proceedings in compliance therewith. See, e.g., People v. Dickey, 2011 IL App (3d)

100397, ¶¶ 24, 27.

¶ 12 However, in this case the State urges us not to reach the merits of the defendant’s

claim, contending that because the defendant did not raise this issue in the trial court, and

has not argued for plain-error review before this court, the defendant has forfeited his

claim. In support of this proposition, the State points to two cases—People v. Sharp,

2015 IL App (1st) 130438, ¶ 132, and People v. Pasch, 152 Ill. 2d 133, 216 (1992)—that

hold that defects in a sentencing hearing must be included in a motion for a new

sentencing hearing to avoid forfeiture. In this case, however, the defendant is not raising

a defect in his sentencing hearing: instead, he is contending that the restitution order itself

is inadequate as a matter of law, because it does not meet the requirements of the Code.

The State also cites People v. Kirkpatrick, 272 Ill. App. 3d 67, 72-73 (1995), in which our

colleagues in the Fourth District held that the defendant’s attempt to challenge a

restitution order of $215.50—on the grounds that the order failed to set forth a time for

payment, as required by the Code—was forfeited because the defendant did not raise the

issue in the trial court. However, as the defendant points out in his reply brief, the only

legal authority the Kirkpatrick court cited as support for its ruling was an earlier case

from this court, People v. Williams, 180 Ill. App. 3d 294, 305-06 (1989), which in fact

found that although forfeiture was present with regard to the defendant’s excessive

sentencing claim, forfeiture was not present with regard to the defendant’s claim that the 6 restitution order in that case was invalid because no hearing had been held to determine

the defendant’s ability to pay restitution. We agree with the defendant that therefore

Williams, rather than Kirkpatrick, is the more apposite and appropriate case to follow,

and that accordingly, the defendant has not forfeited the claim he raises in this appeal,

despite the fact that he did not raise it in the trial court. We also agree that the defendant

therefore was not required to argue for plain-error review in this court. See Williams, 180

Ill. App. 3d at 306 (remanding, despite State’s claim of forfeiture and despite the lack of

a plain-error argument by the defendant, for a hearing to determine defendant’s ability to

pay restitution, as required by the Code). We note as well that Kirkpatrick involved a

restitution order for $215.50, whereas this case involves an order for $100,000—an

amount that certainly raises the twin specters of due process and fundamental fairness

when any argument as to forfeiture is made.

¶ 13 With regard to the merits of the defendant’s claim, this court has long held that if a

trial judge, after determining that restitution is appropriate in a case, nevertheless fails “to

set forth a time limit or method of payment as required by” the Code, the order must be

remanded for a new hearing, and a new order that complies with the Code. People v.

Hayes, 173 Ill. App. 3d 1043, 1052 (1988). “On remand, *** the trial [judge] must

consider [the] defendant’s ability to pay in making a determination of the method and

time of payment of restitution.” Id. at 1053. In this case, the defendant is correct that the

trial judge failed to comply with the Code because the trial judge’s restitution order failed

to set out a method and manner of payment which took into account the defendant’s

ability to pay, and failed to set a time period for payment. Accordingly, we vacate the 7 restitution order and remand for proceedings in compliance with the Code. We note that

on remand, the trial judge is not obligated to accept the defendant’s version of events as

to the disposal of the gold coins in question.

¶ 14 III. CONCLUSION

¶ 15 For the foregoing reasons, we vacate the restitution order of the circuit court of

Jefferson County and remand for proceedings in compliance with the Code.

¶ 16 Restitution order vacated; cause remanded.