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People v. McCaskill

August 05, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
IRVING MCCASKILL II, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Knecht

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from Circuit Court of Macon County

No. 96CF1415

Honorable James A. Hendrian, judge Presiding.

Defendant, Irving McCaskill II, was charged with armed robbery and aggravated robbery in the circuit court of Macon County. At the time the public defender was appointed to represent him, the trial court ordered defendant to perform 80 hours of community service to pay for the services of his appointed counsel. Pursuant to a negotiated plea agreement, defendant pleaded guilty to aggravated robbery and was sentenced to a five- year term in prison. He filed a motion to reduce his sentence, which was denied. Defendant appeals from the order requiring him to work 80 hours of community service in exchange for the services of his appointed counsel and also from the denial of his motion to reduce sentence because the certificate of counsel required by Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) was not timely filed. We affirm in part and vacate in part.

At an arraignment on December 12, 1996, defendant was charged by information with one count of armed robbery and one count of aggravated robbery in violation of sections 18-2(a) and 18-3, respectively, of the Criminal Code of 1961. 720 ILCS 5/18-2(a), 18-5 (West 1996). He was given an affidavit of assets and liabilities and ordered to appear on December 19 with the filled- out affidavit at which time his motion for public defender would be considered.

On December 19 defendant appeared before Judge Paul M. Francis. Defendant presented his affidavit, which indicated no source of income. Judge Francis appointed the public defender to represent defendant and set a date for preliminary hearing. Defendant was then ordered to perform 80 hours of community service to pay for the services of his attorney by working it off. He was ordered to have 40 hours of the service completed by the date of the preliminary hearing, January 14, 1997. Further, defendant was admonished if he did not report to the probation office within seven days to find out his work assignment, the appointment of the public defender would be vacated and a warrant would issue for his arrest.

At the time of his preliminary hearing, defendant waived the hearing and, in response to the trial court's questioning, indicated he had worked 28 hours of community service as of January 14. The trial court asked defendant to bring in written proof of the number of hours he had worked at the next status hearing.

Subsequently, the State and defendant negotiated an agreement under which the State would drop the armed robbery count and defendant would plead guilty to aggravated robbery only. Defendant could request probation and the State agreed to ask for only five years' imprisonment if defendant was not granted probation. The plea was entered on February 11, 1997. On March 7 defendant was sentenced to five years' imprisonment.

Defendant filed a motion to reduce sentence on March 31. He did not file a motion to withdraw his guilty plea. The motion was heard and denied on May 7. Notice of appeal was filed on May 13. On June 3 defense counsel filed a certificate in compliance with Supreme Court Rule 604(d) in the circuit court.

Defendant argues the requirement he work 80 hours of community service in exchange for the services of the public defender is a violation of the state and federal constitutions forbidding involuntary servitude and imprisonment for debt. The State argues this issue is either moot or waived and need not be dealt with in this appeal; however, on the merits, such a work requirement is permitted under section 113-3.1 of the Code of Criminal Procedure of 1963 (Code), which provides for reimbursement of the county when counsel is appointed for a criminal defendant. 725 ILCS 5/113-3.1 (West 1996).

A moot case is one that (1) seeks to determine an abstract question that does not rest on existing facts or rights; (2) seeks a judgment on a pretended controversy; (3) seeks a decision in advance regarding a right that has not yet been asserted and contested; or (4) seeks a judgment upon some matter that, when rendered, has no practical legal effect on an existing controversy. Mount Carmel High School v. Illinois High School Ass'n, 279 Ill. App. 3d 122, 124, 664 N.E.2d 252, 254 (1996). The State argues the issue is moot because defendant has already performed at least 28 hours of community service work or review is premature as there is no indication in the record defendant is being threatened with contempt for failing to complete the 80 hours of community service ordered.

Defendant contends this case falls under one of two exceptions to the mootness doctrine: the public interest exception or the capable-of-repetition-yet-evading-review exception. The capable-of-repetition exception requires (1) the challenged action be too short in duration to be fully litigated prior to cessation; and (2) there be a reasonable ex-pectation the same complaining party would be subject to the same action again. In re A Minor, 127 Ill. 2d 247, 258, 537 N.E.2d 292, 296 (1989). The community service ordered in this case is not too short in duration to avoid review and there is no reasonable expectation defendant will be subjected to this order again. Thus, the capable-of-repetition exception does not apply here.

The public interest exception to the mootness doctrine requires (1) the existence of a question of a public nature; (2) the desirability of an authoritative determination for the purpose of guiding public officers in the performance of their duties; and (3) the likelihood the question will recur. A Minor, 127 Ill. 2d at 257, 537 N.E.2d at 296; Mount Carmel High School, 279 Ill. App. 3d at 125, 664 N.E.2d at 255. We find the imposition of community service to "pay" for the costs of the services of the public defender to be a question of substantial public interest. We also find the fact a circuit court judge ordered such work, using the existing forms for community service under a sentence of probation, to be a novel way to attempt to recoup the cost to Macon County of ...


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