Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Henry County,
the Hon. Clarke C. Barnes, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Henry County, defendant, Antonio Maldonado, was convicted on two counts of an information, one charging the offense of resisting a peace officer and the other, obstructing a peace officer (Ill. Rev. Stat. 1983, ch. 38, par. 31-1). Defendant was fined $250 on each conviction and sentenced to 90 days for obstructing a peace officer and 180 days for resisting a peace officer. The appellate court affirmed in a Rule 23 order (127 Ill. App.3d 1169; 87 Ill.2d R. 23), and we allowed defendant's petition for leave to appeal (94 Ill.2d R. 315).
Defendant's sole contention is that the portion of the sentences imposing the fines must be vacated because the circuit court assessed them without first determining defendant's financial resources and future ability to pay. He argues that section 5-9-1(d)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1(d)(1)), which, in pertinent part, provides that "[i]n determining the amount and method of payment of a fine, the court shall consider * * * the financial resources and future ability of the offender to pay the fine" (Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1(d)(1)), is mandatory and that the circuit court was required to determine defendant's financial resources and future ability to pay a fine prior to its imposition. Defendant argues, too, that because this section is mandatory and imposes upon the circuit court an affirmative duty, the failure to protest imposition of the fines when the circuit court did not comply with the statute did not, as held by the appellate court, constitute a waiver on appeal of the issue regarding imposition of the fine.
The People contend that, by failing to object at the sentencing hearing, "defendant waived any statutory" right to protest the imposition of fines against him. They argue that defendant not only failed to object, but suggested the imposition of a fine as a lesser alternative to imprisonment.
We consider first the People's contention that defendant invited error by "suggesting" imposition of a fine. As the basis of their contention the People quote from the remarks of defense counsel, who, during the sentencing hearing, stated:
"That is, given this type of situation, that incarceration is is not appropriate, that the the Court has before it various alternatives such as public service work. Probation is a a matter that the Court could deal with specifically given that these are police officers we're dealing with and monetary penalties in terms of fines and costs."
We do not agree that in those remarks defense counsel invited error by suggesting the imposition of a fine. We read defense counsel's reference to "fines and costs" as an attempt to illustrate the number and type of statutory alternatives to incarceration. A more definitive statement of defense counsel's proposed alternative for sentencing occurred later in the sentencing hearing when he stated:
"* * * I think, the sentencing alternatives for the Court in terms of a conditional discharge type of sentence and a probationary sentence, a sentence including public service work, those types of things would be appropriate."
This portion of defense counsel's argument makes clear that defendant was seeking an alternative to incarceration, but was not suggesting that a fine was among those alternatives.
The determination of the question presented depends upon whether the provision of the statute is mandatory or directory. Citing People v. Davis (1982), 93 Ill.2d 155, the People argue that to construe this statute as mandatory rather than directory "would permit a legislative infringement upon the exercise of the judicial function of imposing sentence." (93 Ill.2d 155, 161.) Therefore, they contend that it is necessary to construe the section as being directory so as to affirm its constitutionality and validity. They argue that the intent of the General Assembly was to provide directory guidelines for the trial judge's exercise of discretion. Defendant contends that the General Assembly intended that section 5-9-1(d)(1) be mandatory. He observes that, generally, the use of the word "shall" is indicative of a legislative intent that a statute be mandatory rather than directory.
This court has not previously considered the precise issue presented, and the decisions of the appellate court are not in agreement. See People v. Eades (1984), 123 Ill. App.3d 113; People v. Miller (1983), 120 Ill. App.3d 495; People v. Ruff (1983), 115 Ill. App.3d 691; People v. Jumper (1983), 113 Ill. App.3d 346; People v. Morrison (1983), 111 Ill. App.3d 997; People v. Taylor (1980), 84 Ill. App.3d 467; People v. Bishop (1980), 81 Ill. App.3d 521.
In People v. Youngbey (1980), 82 Ill.2d 556, we considered whether section 5-3-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-3-1), which required a presentence investigation and report, was mandatory and whether it could be waived absent an agreement between the parties as to the sentence to be imposed. We found section 5-3-1 to be mandatory because the prescribed presentence report was not solely for the defendant's benefit but was also for the court's enlightenment, the report related only to presentence procedure, and a recent amendment to the statute deleted the provision that defendant could waive the presentence investigation and report.
In People v. Davis (1982), 93 Ill.2d 155, we considered the statutory provisions which provided that a judge specify his reasons for imposing a sentence. We distinguished that case from People v. Youngbey because in Davis the statute related directly to the imposition of sentence, exclusively a function of the judiciary, and to have held it mandatory would have rendered it unconstitutional. We held that because the statute was not mandatory "there was no independent duty upon the court to give a statement of reasons. Instead, the right is purely personal to the defendants and thus may be waived." 93 Ill.2d 155, 163.
We find this case, however, distinguishable from both Youngbey and Davis, and that it more closely resembles People v. Pittman (1982), 93 Ill.2d 169. In Youngbey the statute provided that "a defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court." The statute considered in Davis required the court to state its reasons for imposing a particular sentence. The statute considered in Pittman required that before a consecutive sentence could be imposed the trial court had to be of the opinion "that such a term [was] required to protect the public." The statute involved here requires that the court consider the financial resources and the future ability of the offender to pay the fine. The failure to comply with the requirements of the statutes in Youngbey and Davis ...