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The People of the State of Illinois v. Steven M. Brown

IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT


March 18, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
STEVEN M. BROWN,
DEFENDANT-APPELLANT.

Appeal from Circuit Court of Adams County Honorable Scott H. Walden, Judge Presiding. Nos. 08CF516 09CF172

The opinion of the court was delivered by: Justice Myerscough

JUSTICE MYERSCOUGH*fn1 delivered the judgment of the court, with opinion.

Presiding Justice Knecht concurred in the judgment and opinion. Justice Appleton concurred in part and dissented in part, with opinion.

OPINION

Defendant, Steven M. Brown, appeals the trial court's restitution order and the failure to award defendant the $5-perday credit against fines under section 110-14(a) of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/110-14(a) (West 2008)). We affirm as modified and remand the cause to the trial court with directions to amend the sentencing order to reflect a $900 credit against fines for the 180 days served prior to sentencing.

I. BACKGROUND

In October 2008, the State charged defendant with two counts of aggravated driving under the influence of alcohol (DUI) and three counts of driving on a revoked license, all arising out of an incident that occurred on October 13, 2008 (Adams County case No. 08-CF-516). In December 2008, defendant pleaded guilty to one count of aggravated DUI (625 ILCS 5/11-501(c-1)(2) (West 2006)) in exchange for a sentence of probation and dismissal of the other four charges.

In January 2009, the trial court sentenced defendant to a 30-month term of probation, 270 days of periodic imprisonment, and a $2,500 fine. The probation sentencing order specifically provided that defendant was given credit for 54 days' time served in custody. Defendant was also given a $5-per-day credit against fines for 53 days, totaling $265. The court also ordered defendant to pay restitution of $269.83 to the Quincy police department.

The record contains the "Request for Restitution" form completed by the Quincy police department requesting restitution in the amount of $269.83 for emergency-response expenses. The itemized description of costs included (1) $106.08 for 2 hours and 26 minutes of an eighth-year officer's time; (2) $78.39 for 1 hour and 57 minutes of a ninth-year officer's time; (3) $38.11 for 1 hour and 43 minutes for "Vehicle hours"; (4) $23.55 for "DUI Restitution Report-1 hour"; and (5) $23.70 for "Supervisor's Report--30 minutes." Defendant neither filed a post-sentencing motion nor an appeal.

In March 2009, the State filed a petition to revoke probation, alleging defendant violated the terms of probation by (1) failing to return to the Adams County jail on February 10, 2009, following his release earlier that day for employment and public-service work and (2) committing the offense of escape (720 ILCS 5/31-6(a) (West 2008)) when he failed to return to the Adams County jail from work release. The State also charged defendant with escape (720 ILCS 5/31-6(a) (West 2006)) in Adams County case No. 09-CF-172.

On July 5, 2009, defendant was located in the State of Washington and taken into custody. In September 2009, defendant admitted one allegation in the petition to revoke probation--that he violated probation by failing to return to the Adams County jail.

On November 9, 2009, the trial court resentenced defendant in the DUI case (Adams County case No. 08-CF-516) to 3 years' imprisonment with credit for 214 days served. The court also stated that "[a]ll that previously was ordered in terms of the mandatory fines and fees remains."

That same day, defendant pleaded guilty to escape in exchange for a two-year sentence (Adams County case No. 09-CF-172). After accepting defendant's guilty plea, the trial court sentenced defendant to two years' imprisonment to be served consecutively to the sentence imposed in the DUI case (Adams County case No. 08-CF-516). The court did not give defendant credit for any days served because he received credit for those days in the DUI case.

On November 9, 2009, the trial court entered one written sentencing order for both cases. In addition to reflecting the sentences of imprisonment imposed in both cases, the judgment order directed defendant to pay "[a]ll prior fines & fees due in 08 CF 516." In addition, the court found defendant was entitled to receive sentence credit for time served in the DUI case for 214 days actually served in custody. The order did not, however, indicate that the court granted defendant the $5-per-day credit against fines for any days spent in custody, despite the order containing a place to record that information.

In January 2010, defendant filed a motion for leave to file a late notice of appeal, which this court granted.

II. ANALYSIS

On appeal, defendant challenges the trial court's restitution order and the court's failure to award defendant the $5-per-day sentence credit under section 110-14(a) of the Criminal Procedure Code (725 ILCS 5/110-14(a) (West 2008)) for 180 of the days spent in custody prior to sentencing.

A. Trial Court Did Not Abuse

Its Discretion by Ordering Defendant Pay $269.83 in Restitution to the Quincy Police Department Defendant asserts that when the trial court resentenced him on November 9, 2009, following the revocation of his probation, the court reimposed the fines, fees, and costs imposed as a part of the original sentence of probation, including the requirement that defendant pay $269.83 in restitution to the Quincy police department. Defendant challenges that restitution order on appeal. See People v. Felton, 385 Ill. App. 3d 802, 804-05, 896 N.E.2d 910, 913 (2008) (Fourth District, in a case finding a portion of the restitution order unauthorized and void, noted that a new sentence is imposed when a court revokes probation; therefore, when the trial court reimposed restitution, the defendant could challenge the restitution order on appeal from the resentencing).

Defendant initially argued on appeal that no statute authorized the trial court to award restitution to the Quincy police department. In his reply brief, however, defendant conceded that section 11-501.01(i) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.01(i) (West 2008)) authorized $222.58 of the court's order granting restitution. Defendant now challenges only $47.25 of the restitution order, the portion attributable to the time spent creating the restitution report and the supervisor's report.

Sections 11-501.01(c) and 11-501.01(i) of the Vehicle Code provide for additional administrative sanctions for a person found guilty of violating section 11-501 of the Vehicle Code, including:

"(c) Every person found guilty of violating Section 11-501, whose operation of a motor vehicle in violation of that Section proximately caused any incident resulting in an appropriate emergency response, shall be liable for the expense of an emergency response as provided in subsection (i) of this Section.

(i) In addition to any other fine or penalty required by law, an individual convicted of a violation of Section 11-501 *** whose operation of a motor vehicle *** while in violation of Section 11-501 *** proximately caused an incident resulting in an appropriate emergency response, shall be required to make restitution to a public agency for the costs of the emergency response. The restitution may not exceed $1,000 per public agency for each emergency response. As used in this subsection (i), 'emergency response' means any incident requiring a response by a police officer, a firefighter carried on the rolls of a regularly constituted fire department, or an ambulance." 625 ILCS 5/11-501.01(c), (i) (West 2008).

Defendant forfeited his argument by failing to raise it before the trial court. See, e.g., People v. Rathbone, 345 Ill. App. 3d 305, 310, 802 N.E.2d 333, 337 (2003) (finding the defendant forfeited his claim regarding sentencing by failing to raise the issue before the trial court); Ill. S. Ct. R. 605(a)(3)(B) (eff. Oct. 1, 2001) (requiring the trial court admonish a defendant sentenced following a probation revocation that he must file a motion to reconsider the sentence). Defendant argues on appeal that the portion of the restitution attributable to preparing the two reports does not constitute costs of the emergency response. As such, defendant argues, that portion of the restitution order is void and can be attacked at any time. We disagree.

Defendant essentially challenges the trial court's decision that preparing the two reports constituted "costs of the emergency response." The court had both subject-matter and personal jurisdiction to order restitution, and the challenge to the propriety of the court's decision does not render the order void. See, e.g., People v. Holzapple, 9 Ill. 2d 22, 25, 136 N.E.2d 793, 795 (1956) (finding the court had the power to order restitution and the challenge that it was excessive did not render the order void). Defendant's challenge is distinguishable from those cases where a restitution order was void because the entity granted restitution was not a "victim" under the statute (see People v. Mocaby, 378 Ill. App. 3d 1095, 1102, 882 N.E.2d 1162, 1168 (2008)) or where the restitution was based on amounts owed in connection with dismissed charges (see Felton, 385 Ill. App. 3d at 805, 896 N.E.2d at 913). Here, defendant is essentially challenging the court's conclusion that certain expenses constituted "costs of the emergency response," not the authority of the court to grant the restitution. As such, the order is not void.

Moreover, even if this court were to address the issue on the merits, we would find the court had the authority to order restitution in the full amount sought and did not abuse its discretion by doing so. See, e.g., People v. Fitzgerald, 313 Ill. App. 3d 76, 81, 728 N.E.2d 1271, 1275 (2000) ("determining the appropriate amount of a restitution order is a matter for the sound discretion of the trial court"). The time spent writing the reports was part of the "costs of the emergency response" and the court did not err by ordering defendant to pay $269.83 in restitution.

B. Defendant Is Entitled to a $900 Credit Against Fines Section 110-14(a) of the Criminal Procedure Code provides for a $5-per-day credit against fines in certain circumstances:

"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied upon conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. However, in no case shall the amount so allowed or credited exceed the amount of the fine." 725 ILCS 5/110-14(a) (West 2008).

Although defendant did not raise this issue before the trial court, the issue is not forfeited. See People v. Watson, 318 Ill. App. 3d 140, 143, 743 N.E.2d 147, 149 (2000). Because the right to the credit is conferred in mandatory terms, subject to a defendant's application, the normal rules of forfeiture do not apply "and the right is cognizable on appeal as a matter of course subject to a defendant's application for it." People v. Woodard, 175 Ill. 2d 435, 457, 677 N.E.2d 935, 945-46 (1997).

Defendant argues, and the State concedes, that he is entitled to a total of 180 days of $5-per-day credit. Specifically, defendant asserts the trial court granted defendant $265 (53 days) in credit against fines for the time spent in custody prior to the court's imposition of the original sentence of probation on January 2009. Defendant asserts he is also entitled to an additional $635 credit (127 days) against fines for the period of time including July 5, 2009, through November 9, 2009, the date of resentencing, for a total credit against fines of $900 (180 days). Defendant concedes he is not entitled to sentence credit for the time in January and February 2009 defendant served a term of periodic imprisonment incident to the sentence of probation, which explains the discrepancy between the 180 days defendant seeks for his $5-per-day credit against fines and the 214 days defendant received in sentence credit. See Watson, 318 Ill. App. 3d at 143, 743 N.E.2d at 150 (the defendant was not entitled to the $5-per-day credit against fines for time spent serving a periodic sentence because that time was served as an incident of probation and was not incarceration on a bailable offense).

We agree with defendant and accept the State's concession. Defendant is entitled to a $900 credit against the $2,500 fine. This court therefore remands to the trial court with instructions to amend the written sentencing judgment to reflect a $900 credit against fines for the 180 days served prior to sentencing.

III. CONCLUSION

For the reasons stated, we affirm the trial court's judgment as modified and remand with directions to amend the written sentencing judgment to reflect a $900 credit against fines for the 180 days served prior to sentencing.

Affirmed as modified and remanded with directions.

JUSTICE APPLETON, specially concurring in part and dissenting in part:

I concur with regard to the credit to which defendant is entitled against the fines imposed. I dissent from that portion of the disposition which affirms the order of restitution to the Quincy police department pursuant to the statutory authority of section 11-501.01(c) of the Vehicle Code (625 ILCS 5/11-501.01(c) (West 2008)).

It appears that the Quincy police were called to a gas station by employees of the gas station because defendant was demonstrably under the influence of alcohol and had driven his car to the service station where he was attempting to fill his car. The applicable statutory section is set forth in the majority's order, so I do not repeat it here. Two operative phrases control: "operation of a motor vehicle while in violation" (of DUI) and "proximately caused any incident resulting in an appropriate emergency response" (625 ILCS 5/11-501.01(c) West 2008)). While I certainly agree that defendant drove to the gas station while impaired, there was no nexus between that act and an emergency response. Sending patrol cars to investigate a possible DUI, making an arrest, and then writing reports does not, in my view, constitute an emergency response. Rather, it constitutes the police doing their job.


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