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People v. Wynn

Court of Appeals of Illinois, Second District

December 26, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
BRIAN N. WYNN, Defendant-Appellant.

Appeal from the Circuit Court of Lake County, No. 11-CF-1480, Honorable James K. Booras, Judge, Presiding.

Justices Hutchinson and Jorgensen concurred in the judgment and opinion.

OPINION

ZENOFF, JUSTICE

¶1 Pursuant to a negotiated plea agreement, defendant, Brian N. Wynn, pleaded guilty to domestic battery (enhanced) (720 ILCS 5/12-3.2(a)(2) (West 2010)) in return for a sentence of 18 months' probation. In sentencing defendant, the court also imposed various fines and fees that defendant never challenged. Soon thereafter, the State petitioned to revoke defendant's probation when he failed to comply with several probationary terms. The trial court granted the petition to revoke and sentenced defendant to three years' imprisonment. Defendant moved to reconsider, and, following a hearing, the court reduced defendant's sentence to 2½ years. On appeal, defendant argues that (1) the clerk of the circuit court could not impose the $5 Children's Advocacy Center fine; (2) he is entitled to a $5 credit against his fines for each day he served in presentencing custody; (3) the public defender fee the court imposed must be vacated because, before assessing that fee, the court failed to hold a hearing on defendant's ability to pay; (4) any probation fees charged for the time defendant was not serving probation must be vacated; and (5) the delinquency fee assessed against defendant must be vacated, as it is based on an incorrect unpaid balance amount. The State in essence agrees, but it claims that defendant's Violent Crime Victims Assistance Fund fine is improper and that this court lacks jurisdiction to consider the propriety of the public defender fee. For the reasons that follow, we affirm as modified in part, vacate in part, and remand.

¶2 I. BACKGROUND

¶3 The following facts are relevant to resolving the issues raised on appeal. In June 2011, defendant was charged with aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West 2010)), four counts of domestic battery (enhanced), obstructing justice (720 ILCS 5/31-4(a) (West 2010)), and unlawful restraint (720 ILCS 5/10-3(a) (West 2010)). Pursuant to a plea agreement, defendant pleaded guilty to one count of domestic battery (enhanced) in exchange for, among other things, a sentence of 18 months' probation. In imposing this term of probation on September 2, 2011, the court assessed against defendant various fines and fees, which, as the court stated, totaled $2, 394. Included in these fines and fees was a $5 drug court/mental health court fee;[1] a $10 specialty court fee; a $7 State Police operations assessment; a $200 domestic violence fine; a $30 juvenile expungement fine; a $50 court system finance fee; and $900 in probation fees.[2] Additionally, the court imposed a $750 public defender fee; the court assessed a $25 Violent Crime Victims Assistance Fund fine; and the clerk of the court imposed a $5 Children's Advocacy Center fine. Further, the record reflects that defendant spent 115 days in presentencing custody and that he was entitled to a $5-per-day credit against his fines for the time he had served. However, this credit was never applied.

¶4 Five months later, the State petitioned to revoke defendant's probation, because defendant failed to comply with his probationary terms. For example, the State alleged that defendant had been arrested for aggravated battery to a child, aggravated battery, and domestic battery. While the petition to revoke was pending, defendant's attorney advised the court that defendant was on probation from September 2, 2011, until January 25, 2012, which is when he was arrested for having committed these new crimes.

¶5 Following a hearing on the petition, which was held on March 16, 2012, the court revoked defendant's probation, and the court sentenced him to three years' imprisonment on May 15, 2012. Defendant moved to reconsider, and the court reduced defendant's sentence to 2½ years. Defense counsel noted that defendant had been in custody for 235 days, and she asked that defendant receive a "$5 a day credit towards the statutory fines." The court said that "[it] will award [that], yes." According to the supplemental record submitted to this court, defendant was not given this credit, and he was assessed a delinquency fee of $718.[3] Defendant filed a notice of appeal on May 22, 2012.

¶6 II. ANALYSIS

¶7 On appeal, defendant raises several issues related to the fines and fees imposed against him. Specifically, he argues that (1) the clerk of the court could not impose the $5 Children's Advocacy Center fine; (2) he is entitled to a $5 credit against his fines for each day he served in presentencing custody; (3) the public defender fee the court imposed must be vacated because, before assessing that fee, the court failed to hold a hearing on defendant's ability to pay; (4) any probation fees charged for the time defendant was not serving probation must be vacated; and (5) the delinquency fee assessed against him must be vacated, as it is based on an incorrect unpaid balance amount. The State essentially concedes error on all of these points except one. That is, the State claims that this court lacks jurisdiction to consider the propriety of the public defender fee. The State also contends that the Violent Crime Victims Assistance Fund fine must be modified. We consider in turn each of the issues raised.

¶8 Before addressing these issues, we note that defendant never raised in the trial court any issue related to the fines and fees imposed. He claims that he may take issue with them now, because void orders may be attacked at any time. See People v. Martino, 2012 IL App (2d) 101244, ¶17. As noted, the State concedes that defendant may raise these issues, except for the public defender fee, for the first time on appeal. Accordingly, we will address each of the issues, and, in so doing, we will consider whether this court has jurisdiction over the public defender fee. See id. Moreover, we observe that, because the issues raised concern pure questions of law, including the construction of a statute, our review is de novo. See id. ¶¶21, 26; People v. Carter, 392 Ill.App. 3D 520, 523 (2009) (courts employ a de novo standard of review when the issues raised concern questions of law and there are no disputed factual issues).

¶9 A. Children's Advocacy Center Fine

¶10 The first issue we address is whether the clerk of the circuit court could impose the $5 Children's Advocacy Center fine. The Children's Advocacy Center fine is a mandatory fine. See 55 ILCS 5/5-1101(f-5) (West 2010). Thus, it must be imposed. People v. Evangelista, 393 Ill.App.3d 395, 401 (2009). However, even though the fine is mandatory, the clerk of the court lacks the authority to impose it. Id. When the clerk, and not the trial court, assesses the fine, this court may vacate the fine and reimpose it. Id. Accordingly, here, we vacate the $5 Children's Advocacy Center fine and reimpose it. Id.

¶11 B. Credit

ΒΆ12 We next address whether defendant is entitled to a $5-per-day credit against his fines for the time he spent in presentencing custody. Section 110-14(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-14(a) (West 2010)) delineates under what circumstances a defendant ...


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