Appeal from the Circuit Court of Lake County No. 09-CF-2718 Honorable Theodore S. Potkonjak, Judge, Presiding.
JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Burke concurred in the judgment and opinion.
¶ 1 After defendant, Jordan A. Williams, pled guilty to unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/407(b)(1) (West 2008)), he was sentenced to 15 years' imprisonment and ordered to pay various fines and fees, including a $750 public defender fee, a $200 DNA indexing fee, a $75 pretrial bond supervision fee, and a $3, 000 drug assessment. On appeal, defendant argues that each of these fees must be vacated and that the drug assessment must be offset by credit for his time spent in custody prior to sentencing. In particular, defendant argues that the public defender fee must be vacated because the trial court imposed it without any notice or inquiry into defendant's ability to pay. The State agrees; however, the State contends that the cause should be remanded for a hearing to determine defendant's ability to pay the public defender fee. For the reasons that follow, we: (1) vacate the public defender fee and remand the cause for the trial court to determine defendant's ability to pay the fee; (2) vacate the $200 DNA indexing fee; (3) vacate the $75 pretrial bond supervision fee; (4) modify the mittimus to reflect a $1, 730 credit toward the drug assessment; and (5) order the trial court to reduce the debt collection fee to reflect these changes.
¶ 2 I. BACKGROUND
¶ 3 The facts relevant to resolving the issues raised are as follows. On July 29, 2009, defendant was charged by a three-count indictment. Count I charged armed violence (720 ILCS 5/33A-2(a) (West 2008)), count II charged unlawful possession of a controlled substance (between 1 and 15 grams of a substance containing cocaine) with the intent to deliver within 1, 000 feet of a school (720 ILCS 570/407(b)(1) (West 2008)), and count III charged unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a), (e) (West 2008)).
¶ 4 Initially, a public defender was appointed to represent defendant. On November 9, 2009, defendant secured private counsel, and the public defender was allowed to withdraw. At that time, the trial court noted that the public defender's office had represented defendant through the preliminary hearing, arraignment, and pretrial stages. Accordingly, the court ordered defendant to pay $750 for the services of the public defender.
¶ 5 When the fee was ordered, the only information in the record pertaining to defendant's financial circumstances was a certificate of assets, filed when the public defender was appointed. The certificate indicated that defendant was unemployed, had three children, and had no assets. Defendant was incarcerated when the certificate was filed and remained incarcerated when the public defender fee was imposed.
¶ 6 On April 14, 2010, defendant pled guilty to count II of the indictment, a Class X felony, in return for dismissal of the other two counts. There was no sentencing agreement. On June 18, 2010, the trial court sentenced defendant to 15 years' imprisonment and assessed various fees and fines.
¶ 7 On July 16, 2010, defense counsel filed a motion to reconsider the sentence. The motion was denied at a hearing on March 14, 2011. Defendant appealed, and this court vacated the denial of his motion to reconsider and remanded the case based on counsel's failure to comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). People v. Williams, 2011 IL App (2d) 110367-U. A new motion to reconsider was filed on January 5, 2012. The court denied the motion at a hearing that same day, and this timely appeal followed.
¶ 8 II. ANALYSIS
¶ 9 Defendant raises five issues in this appeal: (1) whether the $750 public defender fee must be vacated outright or whether the cause must be remanded for a proper hearing; (2) whether the $200 DNA fee must be vacated; (3) whether the $75 pretrial bond supervision fee must be vacated; (4) whether the $3, 000 drug assessment must be offset to reflect credit for defendant's time in custody prior to being sentenced; and (5) whether the debt collection fee must be recalculated.
¶ 10 A. Public Defender Fee
¶ 11 Defendant first claims that the trial court's order imposing the public defender fee violated section 113-3.1(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-3.1(a) (West 2008)) and must be vacated.
¶ 12 According to section 113-3.1(a) of the Code, when a criminal defendant is represented by court-appointed counsel, a trial court may order the defendant to pay a reasonable sum to reimburse the county or the State. 725 ILCS 5/113-3.1(a) (West 2008). The Code further states:
"In a hearing to determine the amount of the payment, the court shall consider the affidavit prepared by the defendant under Section 113-3 of this Code and any other information pertaining to the defendant's financial circumstances which may be submitted by the parties. Such hearing shall be conducted on the court's own motion or on motion of the State's Attorney at any time after the appointment of counsel but no later than 90 days after the entry of a final order disposing of the cause at the trial level." Id.
¶ 13 A trial court may not impose a public defender fee in a perfunctory manner. People v. Somers, 2013 IL 114054, ¶ 14. Instead, "the court must give the defendant notice that it is considering imposing the fee, and the defendant must be given an opportunity to present evidence regarding his or her ability to pay and any other relevant circumstances." Id. The hearing is mandatory and is not up to the discretion of the trial court. People v. Love, 177 Ill.2d 550, 555 (1997). The hearing should examine the costs of representation, the defendant's financial circumstances, and the defendant's foreseeable ability to pay. Somers, 2013 IL 114054, ¶ 14. Whether the trial court complied with section 113.3.1(a) in imposing the fee presents a question of law, which we review de novo. People v. Gutierrez, 2012 IL 111590, ¶ 16. Moreover, even though defendant did not raise this issue in the trial court, we will not apply the forfeiture rule where a trial court imposes the fee without following the proper procedural requirements. People v. Carreon, 2011 IL App (2d) 100391, ¶ 11.
¶ 14 In this case, it is undisputed that the trial court imposed the public defender fee of $750 without holding a sufficient hearing to determine defendant's financial circumstances. Thus, the State concedes that the order requiring payment must be vacated. Accordingly, we vacate the order.
¶ 15 Although the parties agree that the $750 public defender fee must be vacated, they dispute the proper remedy. The State argues that the cause must be remanded for a sufficient hearing but defendant insists that it is not permissible to ...