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The People of the State of Illinois v. James E. Folks

December 28, 2010


Appeal from Circuit Court of McLean County Honorable James E. Souk, Judge Presiding.

The opinion of the court was delivered by: Justice Myerscough

JUSTICE MYERSCOUGH delivered the opinion of the court: In March 2009, defendant, James E. Folks, pleaded guilty to unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)), and aggravated battery (720 ILCS 5/12-4(b)(1) (West 2008)). The trial court accepted the plea and sentenced defendant, in accordance with the plea agreement, to nine years' imprisonment. The plea agreement had also provided for the imposition of certain "court costs and fees," including the $200 deoxyribonucleic-acid (DNA) analysis assessment (730 ILCS 5/5-4-3(j) (West 2008)) and a $20 Violent Crime Victims Assistance Fund (VCVA) assessment (725 ILCS 240/10 (West 2008)).

Thereafter, the circuit clerk sent defendant notice of the fines and court costs imposed, which included a $10 drug-court assessment (55 ILCS 5/5-1101(d-5) (West 2008)), a $15 children's-advocacy-center assessment (55 ILCS 5/5-1101(f-5) (West 2008)) and the $20 VCVA assessment. The $200 DNA-analysis assessment was not imposed because, according to a handwritten notation on the notice by perhaps a court clerk, the assessment was "waived since sample taken in 2004." The notice and the docket entry indicating the filing of proof that a DNA sample was "previously taken in 2004" are initialed by "TB."

Defendant filed a motion to withdraw the guilty plea and vacate sentence. In July 2009, the trial court denied defendant's motion.

Defendant appealed, asserting (1) defense counsel's certificate failed to strictly comply with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)); (2) defendant is entitled to vacation of the drug-court and children's-advocacy-center assessments because the circuit clerk lacked the authority to impose those fines or, in the alternative, those fines must be offset by the $5-per-day credit for time spent in presentencing custody; and (3) the VCVA assessment must be reduced to $4 because the amount imposed exceeded the amount permitted by statute.

We affirm as modified. Defense counsel strictly complied with Rule 604(d). On defendant's remaining issues, this court (1) vacates the circuit clerk's assessment of fines and imposes the $10 drug-court and $15 children's-advocacy-center fines, which are offset by credit for the time defendant spent in presentencing custody; (2) reimposes the $200 DNA-analysis assessment, which is offset by credit for the time defendant spent in presentencing custody; and (3) vacates the $20 VCVA assessment and imposes a $24 VCVA assessment.


In January 2009, the grand jury returned a bill of indictment charging defendant with unlawful use of a weapon by a felon (count I) and aggravated battery (count II). On March 24, 2009, defendant pleaded guilty to both charges, and the trial court accepted that plea.

As reflected by the transcript of the plea hearing and documents contained in the record, defendant signed a written plea agreement. In the agreement, defendant agreed to plead guilty to both counts in exchange for which the trial court would impose a sentence of nine years' imprisonment on count I and a concurrent five-year term of imprisonment on count II. The plea agreement reflected the court would impose "$-0- fine, plus court costs and fees as authorized by law, payable as follows: $20 VCVA and $200 DNA." The agreement also reflected defendant was entitled to credit for 83 days already served in custody. The court admonished defendant at the hearing that in addition to his sentence, "there are certain mandatory fines and court costs" and those would include the $20 VCVA assessment and $200 DNA-analysis assessment.

After accepting defendant's plea, the trial court immediately proceeded to sentencing and sentenced "defendant in accordance with his plea agreement." The sentencing judgment entered does not reflect the assessments imposed, although it does indicate that fines and costs were due within two years of defendant's release from custody. The sentencing judgment also reflects defendant's credit for time served from January 1, 2009, to March 24, 2009, which totals 82 days.

The docket entry for the combined plea and sentencing hearing contains preprinted language, apparently stamped into the docket, on which someone, perhaps the trial judge, added handwritten notations. The docket entry contains the preprinted statement "Fines, fees and costs per Supp. Order." A handwritten notation provides "20 VCVA and 200 DNA."

On March 25, 2009, the circuit clerk sent a "Notice to Party" to defendant, detailing the "fine and court costs" imposed against defendant in connection with the case. That document is not signed by the trial judge. According to the notice, the various assessments imposed included the $10 drug-court assessment and the $15 children's-advocacy-center assessment. The DNA-analysis assessment was listed as ".00$" Next to the statutory citation for the DNA assessment is a handwritten notation by someone reading as follows: "waived since sample taken in 2004." The notice also reflects a VCVA assessment of $20. The document contains the initials "TB," as does a March 25, 2009, docket entry notation providing as follows: "DNA sample previously taken in 2004, proof filed."

Thereafter, defendant filed several pro se documents seeking to withdraw his guilty plea, including one filed April 23, 2009. The motion raised no issues pertaining to fines or assessments imposed.

At the July 10, 2009, hearing, the trial court essentially treated defendant's April 2009 pleading as an amendment to the earlier motions to withdraw guilty plea filed by defendant. Defendant's attorney, a different assistant public defender than the one who represented defendant during the plea hearing, adopted defendant's April 23, 2009, motion.

Defense counsel tendered to the trial court a Supreme Court Rule 604(d) certificate. The certificate was entitled "Attorney's Certification for Motion to Reconsider Sentence," although no motion to reconsider had been filed and the court was hearing the motion to withdraw guilty plea.

In the certificate, defense counsel asserted he had (1) personally consulted with defendant regarding "this motion"; (2) reviewed the transcripts of the report of plea of guilty proceeding and sentencing hearing, as well as police reports; (3) examined the trial court file; and (4) elected to make no modifications to the motion. ...

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