People v. Yarber

• Court: Appellate Court of Illinois
• Decided: April 7, 2026
• Docket: 4-25-0294
• Status: Unpublished

Opinion

NOTICE 2026 IL App (4th) 250294-U FILED This Order was filed under April 7, 2026 Supreme Court Rule 23 and is NO. 4-25-0294 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County ROOSEVELT YARBER, ) No. 20CF816 Defendant-Appellant. ) ) Honorable ) William A. Yoder, ) Judge Presiding.

PRESIDING JUSTICE STEIGMANN delivered the judgment of the court. Justices Knecht and DeArmond concurred in the judgment.

ORDER

¶1 Held: The appellate court (1) affirmed defendant’s sentence to prison following revocation of his probation because the trial court properly considered his conduct while on probation as evidence only of rehabilitative potential and (2) remanded the case to allow defense counsel to file a certification for waiver of court assessments pursuant to Illinois Supreme Court Rule 404(e) (eff. Sept. 1, 2023).

¶2 In August 2020, the State charged defendant, Roosevelt Yarber, with domestic

battery, a Class 4 felony (720 ILCS 5/12-3.2(a)(1), (b) (West 2020)), and aggravated domestic

battery, a Class 2 felony (id. § 12-3.3(a-5), (b)). In March 2021, defendant pleaded guilty to

aggravated domestic battery as part of a fully negotiated plea agreement. In accordance with the

terms of the plea, the trial court sentenced defendant to 36 months of probation.

¶3 In March 2023, the State filed a petition to revoke defendant’s probation. In July

2023, defendant admitted violating his probation by drinking alcohol. In January 2025, the trial

court revoked defendant’s probation, resentenced defendant to seven years in prison, and imposed various fines and assessments.

¶4 Defendant appeals, arguing that (1) the trial court abused its discretion by

imposing an excessive sentence that punished him for his conduct on probation rather than for

the underlying offense and (2) his trial counsel rendered ineffective assistance by failing to file a

certification for a waiver of assessments under Illinois Supreme Court Rule 404(e) (eff. Sept. 1,

2023). We affirm defendant’s sentence and remand to allow defense counsel to file a

certification for waiver of court assessments.

¶5 I. BACKGROUND

¶6 A. The Underlying and Prior Charges

¶7 In August 2020, the State charged defendant with domestic battery, a Class 4

felony (720 ILCS 5/12-3.2(a)(1), (b) (West 2020)), and aggravated domestic battery, a Class 2

felony (id. § 12-3.3(a-5), (b)), alleging that on August 13, 2020, defendant knowingly strangled

Ashley Larkin, a household or family member. The charges also stated that defendant was

eligible for extended-term sentencing based on his prior convictions for domestic battery. At the

time of the offense, defendant was serving a term of probation for a 2019 domestic battery

conviction. Consequently, the State also filed a petition to revoke defendant’s probation in the

2019 case.

¶8 In March 2021, the trial court conducted a guilty plea hearing at which the parties

presented a fully negotiated plea agreement. In exchange for defendant’s pleading guilty to

aggravated domestic battery, the State agreed to dismiss the domestic battery count and the

petition to revoke probation in the 2019 case. The plea agreement provided that defendant would

be sentenced to 36 months of probation, 180 days in jail, with credit for 180 days previously

served, and various fines and fees to be ordered by the court. As conditions of his probation,

-2- defendant would be required to (1) complete a domestic violence protocol, a mental health

evaluation, and a substance abuse evaluation, (2) comply with any recommended treatment, and

(3) refrain from consuming alcohol or cannabis.

¶9 The trial court admonished defendant of these terms and explained that if

sentenced to prison, the applicable sentencing range was 3 to 14 years, followed by a period of 4

years of mandatory supervised release (MSR). The court then admonished defendant of the rights

he was giving up by pleading guilty and asked him whether he had been forced or coerced into

pleading guilty. Defendant stated that he understood the admonitions and was pleading guilty

voluntarily.

¶ 10 Following the admonitions, the State presented a factual basis for the plea. The

State asserted it would present evidence showing that on the date of the offense, defendant was

dating Larkin. During an argument, defendant grabbed her by the neck with both hands and

placed her in a chokehold. Larkin was unable to breathe while defendant did this. When police

officers arrived, they observed injuries on Larkin consistent with that conduct.

¶ 11 The trial court accepted defendant’s guilty plea, finding it was knowingly and

voluntarily made. The court then sentenced defendant in accordance with the agreement and

assessed $1,677 in financial penalties.

¶ 12 B. Probation Violations and Revocation Proceedings

¶ 13 1. Administrative Sanctions

¶ 14 In November 2021, the probation department filed two administrative sanction

notices with the trial court. Defendant was sanctioned for (1) consuming alcohol, as evidenced

by a March 2021 drug screen that was positive for an alcohol metabolite, (2) failing to comply

-3- with the previous sanction, and (3) using cannabis, as evidenced by a urine sample taken in

September 2021, which showed positive results for cannabis.

¶ 15 In September 2022, the probation department filed another administrative

sanction notice, identifying two violations: (1) defendant failed to comply with his previous

administrative sanctions and (2) he “failed to report to the probation officer as directed on

7/27/2022 and the month of August 2022.”

¶ 16 2. The Petitions To Revoke Probation

¶ 17 In March 2023, the State filed a petition to revoke defendant’s probation. The

petition alleged that defendant violated the terms of his probation by (1) consuming alcohol,

(2) using cannabis, (3) failing to report to probation, and (4) failing to complete substance abuse

and domestic violence treatment. In April 2023, defendant appeared in court and requested the

appointment of a public defender, which the trial court granted after questioning defendant about

his income. Defendant then entered a general denial of the allegations.

¶ 18 In May 2023, at a status hearing, defendant requested and was granted a 30-day

continuance to consider an offer from the State. Later that month, the State filed a second

petition to revoke probation, alleging defendant failed to report to his probation officer as

directed for the months of February, March, and April 2023.

¶ 19 In July 2023, the trial court conducted a hearing on the petitions. Pursuant to a

document captioned “PLEA AGREEMENT” and filed by the parties, defendant admitted

paragraph 3(T)(2) of the first petition to revoke, which alleged that he consumed alcohol on

January 13 and 14, 2023, and signed an admission of use form on January 30, 2023, in exchange

for the State’s dismissing the remaining allegations in the first and second petitions. The parties

made no agreement as to defendant’s sentence. After admonishing defendant of his extended-

-4- term sentencing range and his rights, the court accepted defendant’s admission and set the matter

for sentencing in September 2023.

¶ 20 C. Delays in Sentencing and New Offenses

¶ 21 Over the next several months, the parties repeatedly agreed to continue the

sentencing hearing to allow defendant to complete substance abuse treatment. In February 2024,

defense counsel requested another continuance, informing the trial court that defendant was

nearly finished with substance abuse treatment and set to start domestic violence treatment,

which would take 24 weeks. Defendant had also been reporting to probation. The court agreed to

continue the case.

¶ 22 In April 2024, the State filed a third petition to revoke probation, this time

alleging that in March 2024, defendant had committed and been charged with the offenses of

(1) aggravated fleeing or attempting to elude a peace officer and (2) driving while never having

been issued a license. In June 2024, the State filed a fourth petition to revoke probation, alleging

that earlier in June, defendant had committed and been charged with the offenses of aggravated

battery (great bodily harm) and resisting a peace officer.

¶ 23 In November 2024, the trial court conducted a status hearing. After reviewing the

case history, the court and the parties agreed to set the case for a resentencing hearing on the first

petition to revoke and a pretrial hearing on the third and fourth petitions to revoke. The court

scheduled the hearings for January 2025.

¶ 24 D. The Resentencing Hearing

¶ 25 In January 2025, the trial court conducted the resentencing hearing on the first

petition to revoke probation. At the beginning of the hearing, the State moved to dismiss the third

and fourth petitions to revoke, which the court granted.

-5- ¶ 26 The trial court then asked the parties if they had received the presentence

investigation report (PSI) and whether they had any additions or corrections. Both parties had

received the PSI, and neither requested any substantive changes. The court admitted the PSI,

which contained defendant’s detailed prior criminal record.

¶ 27 Specifically, the PSI showed that defendant was adjudicated a delinquent minor in

2011 for robbery and sentenced to five years of probation, which was terminated unsatisfactorily

in 2013. In 2013, defendant was convicted as an adult of aggravated unlawful use of a weapon

and delivery of a controlled substance and was sentenced to serve four years in the Illinois

Department of Corrections (DOC). The PSI showed that defendant was paroled for those

offenses twice and returned to DOC custody twice before completing his sentence at the end of

2016. In 2018, defendant was charged with and convicted of domestic battery. He received a

sentence of probation and was ultimately unsuccessfully discharged. In 2019, he was charged

with and convicted of domestic battery (bodily harm) and sentenced to 30 months of probation.

¶ 28 The PSI also detailed the history of the State’s petitions to revoke and allegations

of probation violations filed in each case in which defendant was sentenced to probation,

including the aggravated domestic battery offense on which defendant was being resentenced.

¶ 29 1. The State’s Argument

¶ 30 The State presented no evidence in aggravation but relied heavily on the

information in the PSI to structure and support its argument, which focused on three areas:

(1) defendant’s lengthy, violent criminal history, (2) defendant’s personal history, and

(3) defendant’s inability to comply with terms of probation.

¶ 31 The State began by emphasizing defendant’s criminal history, beginning with his

committing robbery as a juvenile in 2010 and ending with the aggravated domestic battery

-6- offense for which he was being sentenced. The State noted that defendant committed many

offenses while he was on probation for an earlier offense and that he was sentenced to prison

only once, and when he was released on MSR, he was returned to custody twice. The State also

emphasized that defendant had a history of violent offenses, including weapons offenses, a

forcible felony, and multiple domestic battery offenses, “culminating with a case in front of Your

Honor here today involving strangulation of [an] intimate partner. One of the most serious acts of

intimate partner violence.

¶ 32 Regarding defendant’s personal history and compliance with probation, the State

contended that the PSI showed defendant had “support,” including family that he was close to

and “children to live a law-abiding life for. But his violence toward his intimate partners is what

keeps him here in the justice system and is what brings him before the Court today.” The State

continued as follows:

“[W]hat is documented over the next four pages [of the PSI] is the defendant’s

unwillingness to address the issues that under[lie] what causes his criminal

behavior. Despite being given opportunities over the last five or more years to

address his issues with intimate partner violence, with violence toward others,

with substance abuse issues, which he has indicated he has, we can see that there

has been a significant amount of patience with him. And despite being given those

opportunities to address those issues, he has been unwilling to comply with those

orders.

***

Pages 18 to 24 of the report illustrate the defendant’s inability to comply

with even the simplest conditions of probation in reporting to his probation

-7- officer. Multiple documented incidents of failing to report to his probation officer,

failing to communicate with the probation officer or to take even the simplest

steps for his term of probation.”

¶ 33 The State acknowledged that defendant was eligible for probation and “under 730

ILCS 5/5-6-1 [(West 2024)] that a community-based sentence is the preferred sentence unless

certain findings are made by the Court.” Addressing those findings, the State argued that a

community-based sentence was not appropriate and imprisonment was necessary for the

protection of the public. The State recommended a sentence of seven years in prison, explaining

as follows:

“The State does recognize that there has been one single or two consecutive

sentences in [DOC] over 10 years ago, and there has been no further sentences to

[DOC]. But his significant lack of compliance, unsuccessful discharge for any

term of probation he’s ever been placed on and continued violent behavior, a term

in [DOC] is necessary.”

¶ 34 2. Defendant’s Argument and Allocution

¶ 35 Defendant called no witnesses but tendered (1) letters from his sister, a coworker,

and a godsister and (2) documents showing that defendant had participated in domestic violence

and mental health services at the jail and worked as a “Pod Worker.”

¶ 36 Defendant acknowledged that he had extensive involvement with the criminal

justice system but argued several mitigating circumstances existed. In particular, defendant

asserted that his troubles with the law began when his father died of an illness when defendant

was 14 or 15 years old, which was also when his substance abuse issues began. Defendant

-8- acknowledged that he still had a substance abuse problem and that he had started and stopped

treatment multiple times. Defendant’s attorney stated the following:

“As we can see from his statements in counseling sessions that are

contained in the PSI and discussions with probation officers, he has been honest

in coming to a realization of his anger issues and realizing this is probably

something that I need to deal with. Has he been successful in following through

all the way? No, he hasn’t. But prior to this sentencing, the Court will recall there

were many continuances up until today’s date. That is because my client had been

righting the ship with probation. In speaking to my client prior to this

sentencing—he may talk about this in his statement in allocution if he chooses

to—some of the tools that he learned from treatment classes out in the community

while on probation, but also while he has been incarcerated down in the jail.”

¶ 37 Defendant also argued that he provided a substantial amount of care for his

children and family. Defendant had four children and had relationships with all of them that

included some caretaking and financial support. The letter from defendant’s godsister described

him as a positive influence and support person for her children, and defendant’s sister’s letter

reinforced defendant’s role as the primary caretaker for his 75-year-old mother, who was battling

chronic obstructive pulmonary disease. Defendant also maintained employment for 10 months a

year, on average.

¶ 38 In making a recommendation, defense counsel stated, “I do understand with the

amount of probation that my client has, that probation is most likely not an option in this

particular case.” Nonetheless, defense counsel argued that defendant provided value to society

-9- generally and to his family in particular, which counseled against a lengthy period of

incarceration, and recommended a sentence of 180 days in jail.

¶ 39 In allocution, defendant stated he had been attending classes and trying to change

his behavior in the jail. He said he had learned about how violence had been normalized in his

past and that domestic violence required an understanding that he could not blame the victim and

had to remove himself from bad situations.

¶ 40 3. The Trial Court’s Judgment

¶ 41 The trial court then gave its ruling, as follows, which we set forth in its entirety:

“Court’s considered the [PSI] that’s been prepared in this case. I’ve

considered the evidence that’s been presented, arguments of the attorneys, the

defendant’s statement in allocution. I’ve considered Defendant’s Group Exhibit A1

through A5. I’ve considered all the statutory factors in aggravation and mitigation.

I’ve considered all relevant factors that a court should consider when imposing a

sentence for a serious felony case.

The defendant in this case is being resentenced in relation to a charge of

aggravated domestic battery involving strangulation. The defendant has been given

ample opportunity on probation to comply with the terms of his probation. He’s

had significant difficulty in complying with the terms of his probation. He has done

some good things down in the jail. He’s a pod worker, done other self-help things

in the jail. He should be commended for that. There are other positive factors in the

[PSI] and activities that [defendant] has engaged in.

The defendant has an extensive prior record. He started out at a very early

age in juvenile court with a very serious offense of robbery and graduated to adult

- 10 - court with a weapons violation and narcotics charge. He was sent to prison and

paroled, revoked, paroled, revoked and, ultimately, discharged. He’s been

unsuccessfully discharged from probation on multiple occasions. He has multiple

domestic violence offenses, and he’s been involved in, according to the personal

history in the PSI, in multiple receiving end and delivering end, of domestic

violence throughout his life with various partners.

The Court believes that—first of all, I’ve considered all factors in

aggravation, mitigation whether or not I mention them specifically. I have reviewed

the entirety of the [PSI] and considered all arguments and evidence from the

attorneys. The Court believes that an additional period of probation deprecates the

seriousness of the offense and would be inconsistent with the ends of justice. The

Court believes that a sentence to [DOC] is necessary for the protection of the public.

The Court believes the State’s recommendation of 7 years is appropriate to be

served at 85 percent, 4 years of mandatory supervised release, 201 days of credit.

I don’t believe he’s going to receive credit for the self-help time down in

the jail because it’s an 85-percent sentence. That will be up to [DOC].”

¶ 42 The trial court imposed the “[o]riginal fines, fees and costs” and ordered them to

be paid within one year of defendant’s release from prison.

¶ 43 This appeal followed.

¶ 44 II. ANALYSIS

¶ 45 Defendant appeals, arguing that (1) the trial court abused its discretion by

imposing an excessive sentence that punished him for his conduct on probation rather than for

the underlying offense and (2) his trial counsel rendered ineffective assistance by failing to file a

- 11 - certification for a waiver of fees under Illinois Supreme Court Rule 404(e) (eff. Sept. 1, 2023).

We affirm the trial court’s sentence but remand to allow defense counsel to file a certification for

waiver of fees.

¶ 46 A. Defendant’s Sentence

¶ 47 Defendant argues that the trial court abused its discretion by focusing on his

conduct while on probation—specifically, his consumption of alcohol—rather than the original

offense of aggravated domestic battery. Defendant contends that the court’s comments at

sentencing demonstrate an improper commingling of the underlying offense with his probation

violations. We disagree.

¶ 48 1. The Applicable Law and Standard of Review

¶ 49 The trial court has broad discretion when imposing a sentence, and its decision is

entitled to great deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010). A reviewing court

will not disturb a sentence on appeal absent an abuse of that discretion. Id. “A sentence within

statutory limits will not be deemed excessive and an abuse of the court’s discretion unless it is

greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the

nature of the offense.” (Internal quotation marks omitted.) People v. Pina, 2019 IL App (4th)

170614, ¶ 20.

¶ 50 When a trial court revokes a defendant’s probation, it may sentence the defendant

to any term that would have been appropriate for the original offense. People v. Young, 138 Ill.

App. 3d 130, 134-35 (1985). Although the court cannot punish the defendant for the conduct that

constituted the probation violation, it may consider that conduct as evidence of the defendant’s

rehabilitative potential. People v. Varghese, 391 Ill. App. 3d 866, 876 (2009); see Young, 138 Ill.

App. 3d at 140 (“Conduct which leads to revocation of probation has been regarded as a ‘breach’

- 12 - of the court’s trust, or as otherwise causing the court to lose confidence in the defendant’s

rehabilitative potential.”). “[I]t is appropriate for a defendant who conducts himself poorly while

on probation to receive a more severe sentence than he originally received.” (Internal quotation

marks omitted.) Pina, 2019 IL App (4th) 170614, ¶ 30.

“[A] sentence within the statutory range for the original offense will not be set

aside on review unless the reviewing court is strongly persuaded that the sentence

imposed after revocation of probation was in fact imposed as a penalty for the

conduct which was the basis of revocation, and not for the original offense.”

(Emphases in original.) Young, 138 Ill. App. 3d at 142.

¶ 51 2. This Case

¶ 52 Defendant argues the trial court abused its discretion by improperly commingling

his probation conduct with the original offense. Relying on Varghese, defendant contends the

court’s remarks at resentencing focused almost entirely on his inability to comply with probation

conditions—specifically, “irrelevant facts” like jail rule violations and his failure to complete

probation in unrelated cases—instead of the original offense of aggravated domestic battery.

Defendant asserts this shows the court sentenced him, at least in part, as punishment for his

probation violations. We disagree.

¶ 53 First, defendant’s reliance on Varghese is misplaced. In Varghese, the defendant

was on probation for a sex offense when he attempted to arrange a meeting with a minor.

Varghese, 391 Ill. App. 3d at 868. The trial court revoked his probation and sentenced him to

seven years in prison. Id. On appeal, the appellate court vacated the sentence, concluding that the

trial court’s comments—describing the defendant’s conduct while on probation as “dangerous”

- 13 - and “intolerable”—clearly showed that the court was punishing the defendant for the uncharged

criminal conduct rather than the original offense. Id. at 877.

¶ 54 Unlike Varghese, where the defendant’s probation violation constituted a serious,

new, uncharged criminal offense that raised due process concerns, defendant here admitted to a

mere technical violation concerning the consumption of alcohol. The record shows that the trial

court did not characterize defendant’s conduct as criminal or dangerous but instead focused on

his inability to comply with the court’s orders.

¶ 55 This case is more similar to Pina, 2019 IL App (4th) 170614, ¶ 37, in which this

court affirmed a sentence following a probation revocation for cocaine use, holding that

comments about failing to comply with probation reflected a reassessment of rehabilitative

potential, not improper punishment. See Young, 138 Ill. App. 3d at 140 (noting a defendant’s

conduct leading to revocation appropriately causes the court to lose confidence in their

rehabilitative potential).

¶ 56 The trial court’s comments in this case similarly reflect a reassessment of

defendant’s rehabilitative potential. They were also directly responsive to the parties’ arguments.

The State argued that the PSI demonstrated defendant’s inability to comply with “even the

simplest conditions of probation” and highlighted his “extensive” criminal history. In response,

the trial court noted that defendant had been given “ample opportunity” on probation but had

“significant difficulty” complying. These comments were appropriate considerations of

defendant’s rehabilitative potential.

¶ 57 Furthermore, the record shows that the trial court considered the original offense.

The court explicitly stated that defendant was being resentenced “in relation to a charge of

aggravated domestic battery involving strangulation.” The court also referred to defendant’s

- 14 - history involving domestic violence, stating that defendant had “multiple domestic violence

offenses” and had been involved in domestic violence “throughout his life”. This history was

relevant to the nature of the underlying charge and the likelihood of recurrence.

¶ 58 Although defendant argues that the trial court focused too heavily on his conduct

while on probation, the court was not required to ignore defendant’s failure to comply with

probation. Instead of punishing defendant for consuming alcohol, the court properly utilized that

conduct to determine that a sentence of probation was no longer appropriate. The court reasoned

that an additional sentence of probation would “deprecate[ ] the seriousness of the offense” and

be inconsistent with the ends of justice. Contrary to defendant’s claim that these findings

demonstrate that the court was punishing him for his probation violation, the court’s findings

were necessary to explain why it was forgoing a sentence of probation, which both parties agreed

was the preferred sentence by statute.

¶ 59 When imposing the specific sentence, the trial court did not mention defendant’s

probation violation, alcohol, or substance abuse. Defendant pled guilty to a Class 2 felony and,

due to his criminal history, was eligible for an extended term of up to 14 years in prison. The

court’s seven-year sentence falls well within that statutory range. Nothing in the record suggests

the court sentenced defendant to seven years as punishment for his conduct while on probation

rather than for the original offense. See id. at 142.

¶ 60 We also note that this is not a case in which the trial court originally sentenced the

defendant to probation, thinking it was an appropriate sentence. Instead, defendant was placed on

probation as part of a plea agreement negotiated by the parties. As a result, when defendant was

sentenced on the petition to revoke, the court was essentially sentencing defendant for the first

time. In other words, because the parties agreed to a specific sentence as part of the guilty plea,

- 15 - the court had never had the chance to consider and weigh defendant’s criminal history,

rehabilitative potential, and all the other sentencing factors. Thus, it was entirely proper for the

court to focus on defendant’s criminal history when fashioning the appropriate sentence.

¶ 61 Accordingly, we conclude that the trial court did not abuse its discretion.

¶ 62 B. Rule 404(e) and Rule 472

¶ 63 Defendant argues that counsel was ineffective for failing to file a certification for

waiver of assessments, as required in Rule 404(e). The State responds that, pursuant to Illinois

Supreme Court Rule 472 (eff. Feb. 1, 2024), this court lacks jurisdiction over the claim and the

case must be remanded to the trial court for defendant to raise the issue there first.

¶ 64 1. The Applicable Law

¶ 65 Ineffective assistance of counsel claims are governed by the familiar standard set

forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a defendant to

demonstrate both (1) deficient performance and (2) prejudice. See People v. Peterson, 2017 IL

120331, ¶ 79.

¶ 66 Illinois Supreme Court Rule 404 (eff. Sept. 1, 2023) provides the procedures and

requirements for criminal defendants to seek a waiver of court assessments as authorized by

section 124A-20 of the Code of Criminal Procedure of 1963 (725 ILCS 5/124A-20 (West 2024)).

Rule 404(e) provides, “In any case where a defendant is represented by a public defender, ***,

the attorney representing that defendant shall file a certification with the court, and that

defendant shall be entitled to a waiver of assessments as defined in 725 ILCS 5/124A-20(a)

without necessity of an Application under this rule.” Ill. S. Ct. R. 404(e) (eff. Sept. 1, 2023).

Both Rule 404 and section 124A-20 require that the application be filed “no later than 30 days

after sentencing.” Ill. S. Ct. R. 404(a) (eff. Feb. 1, 2024); 725 ILCS 5/124A-20(b) (West 2024).

- 16 - ¶ 67 Illinois Supreme Court Rule 472(a), (c) (eff. Feb. 1 2024) provides that the trial

court retains jurisdiction to correct certain sentencing errors “at any time following judgment and

after notice to the parties, including during the pendency of an appeal,” and states that “[n]o

appeal may be taken by a party from a judgment of conviction on the ground of any sentencing

error specified above unless such alleged error has first been raised in the circuit court.” If a

party attempts “to raise sentencing errors covered by this rule for the first time on appeal, the

reviewing court shall remand to the circuit court to allow the party to file a motion pursuant to

this rule.” Ill. S. Ct. R. 472(e) (eff. Feb. 1, 2024). The specified sentencing errors covered by

Rule 472 are the following: (1) “[e]rrors in the imposition or calculation of fines, fees,

assessments, or costs,” (2) errors in per diem credit, (3) “[e]rrors in the calculation of presentence

custody credit,” and (4) clerical errors in the written sentencing order. Ill. S. Ct. R. 472(a)(1)-(4)

(eff. Feb. 1, 2024).

¶ 68 2. This Case

¶ 69 In the present case, defendant was represented by the public defender throughout

the proceedings in the trial court, including at sentencing and the motion to reconsider sentence.

Rule 404(e) states in no uncertain terms that when a defendant is represented by the public

defender, “the attorney representing that defendant shall file a certification with the court, and

that defendant shall be entitled to a waiver of assessments.” (Emphases added.) Ill. S. Ct. R.

404(e) (eff. Sept. 1, 2023); see People v. Garstecki, 234 Ill. 2d 430, 443 (2009) (holding that the

use of “shall” in the supreme court rule at issue “impose[d] a mandatory obligation upon trial

courts”). Accordingly, defense counsel rendered deficient performance by failing to file the

required certification, and defendant was prejudiced by this failure because he was entitled to a

waiver of the applicable assessments. See People v. Hoskins, 2025 IL App (4th) 240991, ¶ 84.

- 17 - ¶ 70 In the past, this court has ordered remand for compliance with Rule 404(e) when

it has found defense counsel was ineffective for failing to file a certification. See id.

(“Accordingly, we vacate the trial court’s order for a 75% waiver of assessments and remand

with directions for the trial court to order a full waiver of assessments.”); People v. Durham,

2025 IL App (4th) 241284, ¶ 15 (“Because defendant established both prongs of his ineffective-

assistance claim, we remand this matter to the trial court to allow defense counsel to file the Rule

404(e) certification of waiver of assessments.”); People v. Harris, 2025 IL App (4th) 240705-U,

¶ 137 (same). However, as the State points out, this court has also held that Rule 472 covered

such claims and remanded for the defendant to file a motion under that rule. See People v.

Nibbelin, 2025 IL App (4th) 240446-U, ¶ 38; People v. Lawson, 2025 IL App (4th) 240718-U,

¶ 55.

¶ 71 Ultimately, the parties are in agreement that (1) this case must be remanded to the

trial court and (2) defendant must be allowed to raise his claim for a waiver of assessments. The

only dispute is which rule is the proper procedural tool that grants the remand authority. As a

practical matter, both routes arrive at the same destination. Nonetheless, we conclude that Rule

404(e) is the correct one to follow because Rule 472 does not apply to defendant’s specific

claim.

¶ 72 In the present case, defendant does not assert—and the trial court did not

commit—any error regarding fines, fees, assessments, and costs at sentencing; the court properly

imposed and calculated the assessments required by statute upon defendant. Defendant is not

attacking the sentencing order and has no ground to do so. The error that prejudiced defendant is

his counsel’s failure to file a certification of waiver of assessments after sentencing. Because the

alleged (and actual) error is an omission of counsel, and not an error by the court, Rule 472 does

- 18 - not apply. See Ill. S. Ct. R. 472(a) (eff. Feb. 1 2024) (expressly stating the rule is “for correcting

certain sentencing errors”).

¶ 73 Given this context, regardless of whether both rules can be used to remedy

defense counsel’s failure to file a certification for waiver of assessments, we conclude that

remand pursuant to Rule 404(e) with specific instructions for defense counsel to comply with

that rule is the avenue that should be used by appellate courts faced with this recurrent issue to

provide the proper remedy. Based on the foregoing, we conclude that (1) the plain language of

Rule 472 does not extend to a defense counsel’s failure to comply with Rule 404(e) (because

such a failure is not an “[e]rror in the imposition *** of fines, fees, assessments, or costs” (Ill. S.

Ct. R. 472(a)(1) (eff. Feb. 1, 2024)) and (2) remand to the trial court with instructions for defense

counsel to comply with Rule 404(e) is the only way to ensure a defendant receives the remedy to

which he or she is entitled.

¶ 74 3. Epilogue

¶ 75 Having conducted this analysis, we note that this issue is largely an academic

debate because, as a practical matter, the sums owed by defendant in this case (and by other

defendants in the vast majority of cases) are unlikely ever to be paid. This is especially true

considering that cash bond has been eliminated in Illinois, thereby removing the most reliable

method of collecting costs from criminal defendants. Because the likelihood is extremely remote

that any of these costs and fines will ever be collected from criminal defendants, the expenditure

of time by the appellate court and appellate counsel on this subject borders on a waste of judicial

resources.

¶ 76 Parties and the appellate court alike agree that defendants are entitled to seek a

remedy for their counsels’ failure to seek a waiver under Rule 404(e), and as we earlier

- 19 - explained, both Rule 404 and Rule 472 are capable of resolving the issue. However, appellate

review is a particularly inefficient mechanism to address these kinds of claims, which instead

should be addressed in trial courts so that a defendant’s trial counsel can be ordered to complete

the Rule 404(e) certificate and the courts can enter the mandatory waiver.

¶ 77 We note that the Illinois Supreme Court has a chance to provide definitive

guidance to litigants and courts alike because that court has granted leave to appeal in People v.

Nibbelin, 2025 IL App (4th) 240446-U, pet. for leave to appeal granted, No. 131825 (entered

Sept. 24, 2025). The supreme court provided an excellent resolution to similar problems when it

promulgated Rule 472, which was enacted to limit, among other things, appeals raising monetary

sentencing issues by providing trial courts with jurisdiction to address those issues for the first

time after sentencing. People v. Eason, 2020 IL App (3d) 180296, ¶ 11. We respectfully suggest

the Illinois Supreme Court likewise provide a definitive answer in cases involving public

defender waivers under Rule 404(e) when it issues its ruling in Nibbelin.

¶ 78 III. CONCLUSION

¶ 79 For the reasons stated, we affirm the trial court’s judgment concerning

defendant’s sentence and remand the cause for defense counsel to comply with Rule 404(e) and

the trial court to resolve the issue of a waiver of court assessments.

¶ 80 Affirmed and remanded.

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