Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. No. 09-CF-2791 Honorable Kathryn E. Creswell, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion.
¶ 1 On November 8, 2008, defendant, Thomas F. Martino, and his wife, Carmen Keenon, got into an argument, and, when police responded, they observed defendant on top of Keenon on the stair landing outside of the couple's apartment. The officers ordered defendant to get off of Keenon, defendant refused to comply with the officers' orders, the officers tased defendant, and defendant fell on Keenon's arm, breaking it. Defendant was taken into custody and never posted bond. Subsequently, defendant was charged with, among other things, aggravated domestic battery and aggravated battery (see 720 ILCS 5/12-3.3(a), 12-4 (West 2008)). In both of these counts defendant was charged with knowingly causing great bodily harm to Keenon when he broke her arm. The trial court found defendant guilty of aggravated domestic battery, aggravated battery, unlawful restraint (720 ILCS 5/10-3 (West 2008)), and two counts of resisting or obstructing a police officer (720 ILCS 5/31-1 (West 2008)). The aggravated battery conviction merged into the conviction of aggravated domestic battery, and defendant was sentenced to concurrent terms totaling 180 days in jail and 4 years of probation. In fashioning the sentence, the court ordered defendant to pay various fines and fees. Included in these fines and fees were multiple Violent Crime Victims Assistance Fund fines, document storage fees, court automation fees, circuit court clerk fees, court security fees, County Jail Medical Costs Fund fees, court finance fees, State's Attorney's assessments, drug court/mental health court fines, and Children's Advocacy Center fines, as well as a single anti-crime program fine. Although the court gave defendant credit against his sentence for the time he served in presentencing custody, the court did not give defendant credit against his fines for the time he served in custody. On appeal, defendant claims that he was not proved guilty beyond a reasonable doubt of aggravated domestic battery, that he is entitled to a credit against his fines of $5 for each day he served in presentencing custody, that various fines and fees may not be imposed on every conviction, and that his Violent Crime Victims Assistance Fund fines must be reduced to comply with the statute. For the reasons that follow, we reverse defendant's conviction of and sentence for aggravated domestic battery, award defendant credit against his fines for the time he served in presentencing custody, vacate some of the fines and fees imposed, and reduce defendant's Violent Crime Victims Assistance Fund fines.
¶ 3 On the evening of November 7, 2008, defendant and Keenon, who lived in a second-floor apartment in downtown Wheaton, went out for drinks and dinner in downtown Wheaton. At around midnight, the couple was walking home when defendant fell into a pile of leaves. Keenon testified that defendant did not fall into the leaves because he was intoxicated. Rather, Keenon believed that defendant was playing around, enjoying the last nice fall day of the year.
¶ 4 When Keenon was unable to get defendant out of the pile of leaves, she threw her wedding ring at him and walked home. A neighbor saw defendant in the leaves and helped defendant walk back to the couple's apartment. After the neighbor left, Keenon asked defendant if he picked up her wedding ring before he came home. Defendant, who was angry at Keenon for throwing her ring, grabbed Keenon by the throat and shoved her down the stairs outside of the couple's apartment. Keenon landed on the first small landing of the stairs, with her head resting on the first stair leading up to the couple's apartment. As she lay in this position, defendant, who was on top of her, began using a great amount of force to choke her. Keenon, who believed that she was going to die, threw up as defendant was choking her.
¶ 5 The police were called, and, when they arrived, they ordered defendant to get off of Keenon, who was asking for help and crying. Defendant, who was no longer choking Keenon, explained to the police that Keenon was throwing up and that he was trying to help her. The police ordered defendant to get off of Keenon, telling him that they would help her. Defendant replied, in a combative tone, "[Y]ou ain't going to fucking do anything." The police again told defendant to get off of Keenon and come down the stairs and that, if he did not comply, he would be tased. After the police repeated these orders several more times and began moving up the stairs toward defendant, defendant stood up, moved to the front of the landing, and "squared off" against the police in a way that indicated that he wanted to fight. Defendant then took "an aggressive stance," clenching his fists and placing his hands down at his sides. While standing in this position, defendant yelled at the police, "Come on."
¶ 6 At this point, one of the officers tased defendant. Defendant dropped to the ground, having lost control of his muscles because of being tased. Defendant fell backward on top of Keenon, who had not moved since the police arrived. When defendant fell, Keenon heard a "crunch." Although Keenon did not initially feel any pain in her arm when defendant landed on her, she learned later that defendant broke her elbow when he fell on it.
¶ 7 At the close of the State's case, defendant moved for a directed finding, arguing, among other things, that he should not be found guilty of battering Keenon, because Keenon's arm was broken as a result of his involuntary act of collapsing on Keenon after the police tased him. The trial court denied the motion.
¶ 8 After the trial court ruled on defendant's motion for a directed
finding, defendant rested. The trial court found defendant guilty on
all counts, and defendant moved for a new trial. The trial court
denied the motion and sentenced defendant. In imposing the sentence,
the court gave defendant credit against his sentence for the time he
served in presentencing custody, but the court did not give defendant
credit against his fines for that time. Additionally, the court
imposed four document storage fees, four court automation fees, four
circuit clerk fees, four court security fees, four County Jail Medical
Costs Fund fees, four court finance fees, four State's Attorney's
assessments, four Violent Crime Victims Assistance Fund fines, four
drug court/mental health court fines, and four Children's Advocacy
Center fines, as well as an anti-crime program fine.*fn1
When the court imposed
the Violent Crime Victims Assistance Fund fines, it calculated the
amounts of those fines as if no other fines were imposed. See 725 ILCS
240/10(c) (West 2008). Defendant never argued that any of the fines or
fees imposed were incorrect or that he was entitled to credit against
his fines for the time he served in presentencing custody. This timely
¶ 10 On appeal, defendant essentially raises two issues. He argues that (1) he was not proved guilty beyond a reasonable doubt of aggravated domestic battery and (2) his fines and fees must be amended so that they are charged as authorized by statute with a credit against his fines for the time he served in presentencing custody. We address each of these contentions in turn.
¶ 12 The first issue we consider is whether defendant was proved guilty beyond a reasonable doubt of aggravated domestic battery. The United States Constitution requires that a defendant may not be convicted of a crime unless the State establishes beyond a reasonable doubt every fact necessary to constitute the crime with which the defendant was charged. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). When a defendant asserts that the evidence is insufficient to sustain a conviction, the task of the reviewing court is to decide " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "We will not reverse a conviction unless the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt." People v. Collins, 214 Ill. 2d 206, 217 (2005).
¶ 13 Every offense is comprised of both a voluntary act and a mental state. See People v. Douglas, 381 Ill. App. 3d 1067, 1073 (2008). A defendant who commits a voluntary act is held accountable for his act, but a defendant is not criminally liable for an involuntary act. See People v. Grant, 71 Ill. 2d 551, 558 (1978). Involuntary acts are those that "occur as bodily movements which are not controlled by the conscious mind." Id. Examples of involuntary acts include those acts performed while a defendant is convulsing, sleeping, unconscious, under hypnosis, or seizuring. Id. Acts that result from a reflex or that "are not a product of the effort or determination of [the defendant], either conscious or habitual," are also considered involuntary acts for which the defendant cannot be held accountable. 1 Wayne R. LaFave, Substantive Criminal Law § 6.1(c), at 426 (2d ed. 2003).
¶ 14 Here, defendant was convicted pursuant to section 12-3.3(a) of the Criminal Code of 1961 (720 ILCS 5/12-3.3(a) (West 2008)), which provides, in pertinent part, that "[a] person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated domestic battery." Thus, a defendant can be guilty of aggravated domestic battery only if his voluntary act "causes great bodily harm, or permanent disability or disfigurement." Id.
¶ 15 Given the circumstances of this case, we cannot conclude that the State proved beyond a reasonable doubt that defendant's voluntary act resulted in Keenon's broken arm. Specifically, although the evidence revealed that defendant defied the police and that, because of this defiance, the police tased him, the evidence also established that the tasing of defendant rendered defendant incapable of controlling his muscles. See Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2 (7th Cir. 1990) (noting that a Taser "sends an electric pulse through the body of the victim causing immobilization, disorientation, loss of balance, and weakness"). Because defendant was incapable of controlling his muscles, his act of falling on Keenon and breaking her arm was an involuntary act for which he cannot be held accountable. See Grant, 71 Ill. 2d at 558. Accordingly, we determine that defendant was not proved guilty beyond a reasonable doubt of aggravated domestic battery.
¶ 17 The next issue we address is whether defendant is entitled to credit against his fines for the time he served in presentencing custody and whether certain fines and fees were properly imposed. Before considering the substance of these issues, we observe that defendant never challenged in the trial court any of these fines and fees or whether he was entitled to presentencing credit against them. Defendant claims that he may take issue with these matters now. See People v. Thompson, 209 Ill. 2d 19, 27 (2004) (void order may be attacked at any time); People v. Woodard, 175 Ill. 2d 435, 457-58 (1997) (whether a defendant may receive $5-per-day credit toward his fines may be raised for first time on appeal). The State concedes that defendant may raise these issues for the first time on appeal. Accordingly, we address each of the challenged fines and fees and whether defendant is entitled to credit against his fines for the time he served in custody before sentencing.
¶ 19 First, we address whether defendant is entitled to a $5-per-day credit against his fines. Section 110-14(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14(a) (West 2008)) delineates under what circumstances a defendant is entitled to presentencing credit. Specifically, section 110-14(a) provides:
"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on 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." Id.
¶ 20 Here, defendant was in custody for 381 days. Thus, defendant is entitled to a maximum credit of $1,905 against those fines ...