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People v. Montag

Court of Appeals of Illinois, Fourth District

January 28, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, (No. 4-12-0993)
v.
KENT MONTAG, Defendant-Appellant. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, (No. 4-12-0994)
v.
KENT MONTAG, Defendant-Appellant. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, (No. 4-12-0995)
v.
KENT MONTAG, Defendant-Appellant

As Corrected.

Appeal from Circuit Court of Woodford County. No. 11CF12, No. 11CF45, No. 09CF46. Honorable Charles M. Feeney, Judge Presiding.

SYLLABUS

In a consolidated appeal from the sentences, including fines, imposed on defendant for traffic offenses, the fines imposed by the circuit clerk were vacated and remanded with directions that they be reimposed by the trial court with the statutory credit for presentence incarceration, where applicable, and the trial court was directed to correct the sentencing judgment to reflect the consecutive relationship of the sentences imposed.

Michael J. Pelletier, Karen Munoz, and Susan M. Wilham, all of State Appellate Defender's Office, of Springfield, for appellant.

Gregory A. Minger, State's Attorney, of Eureka (Patrick Delfino, David J. Robinson, and David E. Mannchen, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Turner and Steigmann concurred in the judgment and opinion.

OPINION

Page 247

KNECHT, JUSTICE.

[¶1] In June 2011, the trial court sentenced defendant, Kent Montag, to two years' imprisonment in Woodford County case No. 09-CF-46, four years' imprisonment in Woodford County case No. 11-CF-12, and five years' imprisonment in Woodford County case No. 11-CF-45. The sentence in No. 11-CF-12 was ordered to run concurrently to the sentence in No. 09-CF-46 and the sentence in No. 11-CF-45 was ordered to run consecutively to the sentence in No. 11-CF-12. On September 4, 2012, trial counsel filed a certificate pursuant to Illinois Supreme Court Rule 604(d)

Page 248

(eff. July 1, 2006) asserting he had " made all amendments to the motion necessary for the adequate presentation of any defects" in the guilty plea and sentencing hearings. In October 2012, counsel filed an amended motion to reconsider defendant's sentence. The trial court denied the motion.

[¶2] On appeal, in Nos. 4-12-0993 and 4-12-0994, defendant argues trial counsel's certificate is not in strict compliance with Rule 604(d) because it was filed prior to the amended motion to reconsider. In No. 4-12-0995, defendant argues he was improperly assessed a $200 public defender fee because it was imposed at the time the trial court appointed counsel and without a hearing on defendant's ability to pay. In all three appeals, defendant argues he is entitled to a $5 per diem credit against his creditable fines. Our review showed other errors we address as necessary. We affirm in part, vacate in part, and remand with directions.

[¶3] I. BACKGROUND

[¶4] A. The Offenses

[¶5] In July 2009, in Woodford County case No. 09-CF-46 (our case No. 4-12-0995), defendant pleaded guilty to aggravated driving while his license was revoked (625 ILCS 5/6-303(a) (West 2008)). In August 2009, the trial court sentenced defendant to 30 months' probation and imposed a $200 deoxyribonucleic acid (DNA) analysis fee (730 ILCS 5/5-4-3(j) (West 2008)) and a $500 fine. On May 27, 2010, the State filed a petition to revoke defendant's probation. On July 13, 2010, the trial court held an initial hearing on the petition to revoke and appointed a public defender to represent defendant. As part of its ruling, the court assessed a $200 public defender fee. On August 10, 2010, the State dismissed the petition to revoke. In March 2011, the State filed a second petition to revoke defendant's probation, alleging defendant violated his probation by committing the offenses underlying Woodford County case No. 11-CF-12.

[¶6] In February 2011, in Woodford County case No. 11-CF-12 (our case No. 4-12-0993), the State charged defendant with aggravated driving while his license was revoked (625 ILCS 5/6-303(a) (West 2010)) for conduct occurring on January 17, 2011.

[¶7] In March 2011, in Woodford County case No. 11-CF-45 (our case No. 4-12-0994), the State charged defendant with aggravated driving while his license was revoked (625 ILCS 5/6-303(a) (West 2010)) for conduct occurring on March 9, 2011.

[¶8] B. The Plea and Sentencing Hearings

[¶9] In May 2011, at the same hearing, defendant admitted the petition to revoke in No. 09-CF-46 and pleaded guilty in Nos. 11-CF-12 and 11-CF-45.

[¶10] In June 2011, the trial court held a joint sentencing hearing. In No. 09-CF-46, the trial court revoked defendant's probation and resentenced him to two years' imprisonment. The trial court awarded two days' sentencing credit for the time period from April 10, 2009, to April 11, 2009. In No. 11-CF-12, the court sentenced defendant to four years' imprisonment and awarded one day of sentencing credit for January 17, 2012. The court ordered the sentence in No. 11-CF-12 to run concurrently with the sentence in No. 09-CF-46. In No. 11-CF-45, the court sentenced defendant to five years' imprisonment and awarded one day of sentencing credit for March 9, 2011. The court ordered the sentence in No. 11-CF-45 to run consecutively to the sentence in No. 11-CF-12.

[¶11] Although not raised by the parties, we note during pronouncement of sentence,

Page 249

the court stated court costs were owed and " [n]o fine[s] will be imposed in these cases." The docket entries in each case make no reference to imposition of any fines. Likewise, the written sentencing judgments make no mention of the imposition of any fines. (In No. 09-CF-46, the docket entry ...


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