Appeal from Circuit Court of Champaign County. No. 09CF1281. Honorable Heidi N. Ladd, Judge Presiding.
Affirmed in part and vacated in part; cause remanded with directions.
Defendant's convictions and sentences for aggravated criminal sexual assault, attempted aggravated criminal sexual assault and home invasion were upheld on appeal, but the cause was remanded with directions for the clerk of the circuit court to enter a modified sentencing judgment removing the $5-per-day credit against defendant's fines for his presentence incarceration due to the fact that the credit does not apply to those incarcerated for sexual assault, and various fines and fees not properly imposed or assessed were vacated, and the cause was remanded to allow for their proper imposition and assessment according to the appellate court's disposition of this matter.
Michael J. Pelletier, of State Appellate Defender's Office, of Springfield, and Ellen J. Curry and Robert S. Burke, both of State Appellate Defender's Office, of Mt. Vernon, for appellant.
Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE POPE delivered the judgment of the court, with opinion. Justices Knecht and Harris concurred in the judgment and opinion.
[¶1] Following a March 2010 jury trial, defendant, Darrell W. Smith, was found guilty of two counts of aggravated criminal sexual assault (counts I and II) (720 ILCS 5/12-13(a)(1), 12-14(a)(1), (a)(2) (West 2008)); attempt (aggravated criminal sexual assault) (count III) (720 ILCS 5/8-4(a), 12-13(a)(1), 12-14(a)(1) (West 2008)); and home invasion (count IV) (720 ILCS 5/12-11(a)(2) (West 2008)). In May 2010, the trial court merged counts I and II and sentenced defendant to a term of 30 years on count I. It sentenced defendant to a consecutive term of 15 years on count III
and a 30-year term on count IV to run consecutive to the sentence imposed on count I and concurrently with count III. Defendant appeals the summary dismissal of his pro se postconviction petition, arguing he is entitled to a vacation of certain assessments imposed pursuant to his conviction. We affirm in part, vacate in part, and remand with directions.
[¶2] I. BACKGROUND
[¶3] On direct review, this court recited the details of defendant's crimes. See People v. Smith, 2011 IL App. (4th) 100357-U. We need not repeat those details here.
[¶4] On July 30, 2009, the State charged defendant in a four-count information with two counts of aggravated criminal sexual assault; attempt (aggravated criminal sexual assault); and home invasion. The charges generally alleged on July 28, 2009, defendant forcefully entered a home in Urbana, Illinois, and sexually assaulted T.G., who was 13 years old, by placing his fingers in her vagina.
[¶5] In March 2010, the case proceeded to a jury trial. After hearing all of the evidence, the jury found defendant guilty of all four counts. A sentencing hearing was set for May 3, 2010.
[¶6] At the sentencing hearing, the parties were allowed to suggest corrections to the presentence investigation report. However, neither the State nor defendant offered any corrections to the report. Moreover, no evidence was presented by either party in aggravation or mitigation. The parties argued the appropriate sentence for this case and defendant declined to address the court.
[¶7] After hearing the prosecutor's summary of defendant's criminal record, the trial court sentenced defendant on counts I, III, and IV of the information, with count II merging into count I. The trial court sentenced defendant to 30 years' imprisonment on the merged aggravated-criminal-sexual-assault convictions. Additionally, the court sentenced defendant to 15 years' imprisonment for the attempt (aggravated criminal sexual assault) conviction to run consecutive to the aggravated-criminal-sexual-assault sentence and 30 years' imprisonment for the home-invasion conviction to run consecutive to the aggravated-criminal-sexual-assault sentence and concurrently with the attempt (aggravated criminal sexual assault) sentence. The court also gave defendant 279 days' credit for time served. Last, the court ordered defendant to pay the following assessments:
" THE COURT: He is to also receive credit of $1,395 towards any fines or assessments. He is to pay the court costs, a two hundred dollar genetic marker grouping analysis fee unless he's already submitted a sample. He must submit a sample for genetic testing in accordance with the statute. He's to pay a Violent Crime Victims Witness Fee. And he's to undergo medical testing for sexually transmissible diseases and [human immunodeficiency virus], in accordance with the statute, 5/5-5-3(g). Those results should be tendered to the Court."
[¶8] The written sentencing order, filed on May 5, 2010, and signed by Judge Ladd, required defendant to serve a total of 60 years' imprisonment, with credit for the 279 days served. Under subparagraph " A," each count was listed with the name and date of the offense, citation to the statute, the offense's class, and term of imprisonment and mandatory supervised release imposed. Under subparagraph " C," the sentencing order required defendant to " pay costs of prosecution herein" but did not refer to any specific fines or fees.
[¶9] A docket entry dated May 3, 2010, says: " Defendant is ordered to submit specimens of blood, saliva or tissue to the IL. State Police within 45 days and pay a $200 genetic marker grouping analysis fee if not previously done so by the defendant, he is ordered to pay a violent crime victims assistance act fee and undergo medical testing pursuant to 730 ILCS 5/5-5-3(g)." Additionally, on count I, the docket entry lists the following monetary assessments: " Cost Only 280.00[,] ST POLICE SERVICES 10.00." On count II, the docket entry states " Cost Only 290.00[,] COLLECTION FEES 100.05[,] LATE FEES 43.50." On count III, the docket entry lists " Cost Only 290.00[,] MOTION TO VACATE 75.00[,] COLLECTION FEES 100.05[,] LATE FEES 43.50." And, on count IV, the docket entry states " Cost Only 290.00."
[¶10] The circuit clerk's fees and fines information contained in the supplemental record indicates defendant was assessed the following assessments on count I: (1) a $5 document-storage assessment; (2) a $10 automation assessment; (3) a $100 circuit-clerk assessment; (4) a $25 court-security assessment; (5) a $50 court-finance assessment; (6) a $40 State's Attorney assessment; (7) a $10 arrestee's medical assessment; (8) a $25 victims assistance assessment; (9) a $30 juvenile-expungement-fund assessment; (10) a $5 drug-court assessment; (11) a $100.05 collection fee; and (12) a $43.50 late fee.
[¶11] This court affirmed defendant's conviction and sentence on direct appeal. See Smith, 2011 IL App. (4th) 100357-U.
[¶12] In August 2012, defendant filed a pro se petition for postconviction relief, alleging a multitude of constitutional-rights violations. In November 2012, the trial court summarily dismissed defendant's petition for postconviction relief and ordered him to pay " fees and actual court costs."
[¶13] This appeal followed.
[¶14] II. ANALYSIS
[¶15] Defendant takes issue with the imposition of the following assessments imposed on each count in his case: (1) a $5 document-storage assessment; (2) a $10 automation assessment; (3) a $100 circuit-clerk assessment; (4) a $25 court-security assessment; (5) a $50 court-finance assessment; (6) a $40 State's Attorney assessment; (7) a $10 arrestee's medical assessment; (8) a $25 victims assistance assessment; (9) a $30 juvenile-expungement-fund assessment; (10) a $5 drug-court assessment; and (11) $100.05 in collection fees and $43.50 in late fees. Defendant also challenges a one-time $75 filing fee. (We note the supplemental record does not include printouts of the assessments imposed on counts II through IV, nor does it include the $75 filing fee. However, the parties do not dispute the assessments were imposed on each of the four counts (plus a one-time filing fee of $75).)
[¶16] More specifically, defendant argues, and the State concedes, the circuit clerk improperly imposed quadruplicate assessments-- i.e., one for each count within his case--and the additional assessments must be vacated under People v. Alghadi, 2011 IL App. (4th) 100012, 960 N.E.2d 612, 355 Ill.Dec. 730. Second, defendant asserts the circuit clerk improperly assessed fines. Third, defendant contends the amounts of some assessments are incorrectly calculated or not statutorily authorized.
[¶17] The State concedes all duplicate fees and fines must be vacated. The State further concedes the circuit clerk improperly imposed fines, but asserts the fines should be reimposed. The State asks this court to impose three additional fines: a
$200 criminal surcharge (730 ILCS 5/5-9-1(c) (West 2008)); a $200 sexual-assault fine (730 ILCS 5/5-9-1.7(b)(1) (West 2008)); and a $500 sex-offender fine (730 ILCS 5/5-9-1.15(a) (West 2008)). The State contends the Violent Crime Victims Assistance Act (Victims Assistance Act) (725 ILCS 240/10(c)(1) (West 2008)) fine needs to be recalculated. Finally, the State argues defendant is not eligible for the $5 per diem sentencing credit against his fines.
[¶18] In Illinois, it is well settled the trial court must impose fines as a component of a defendant's sentence. " This court has consistently held the circuit clerk does not have the power to impose fines." People v. Montag, 2014 IL App. (4th) 120993, ¶ 37, 5 N.E.3d 246, 378 Ill.Dec. 866. Although circuit clerks can have statutory authority to impose a fee, they lack authority to impose a fine, because the imposition of a fine is exclusively a judicial act. People v. Larue, 2014 IL App. (4th) 120595, ¶ 56, 10 N.E.3d 959, 381 Ill.Dec. 550. When presented with mandatory fines assessed by the clerk, we may vacate the fines and reimpose them ourselves. People v. Warren, 2014 IL App. (4th) 120721, ¶ 85, 16 N.E.3d 13, 383 Ill.Dec. 831.
[¶19] A reviewing court must determine whether the assessment was imposed by the trial court or circuit clerk. " In ascertaining the terms of the sentence, a reviewing court may examine the record as a whole [citation], since the oral pronouncement of sentence and the written sentencing order entered on the same date can be viewed as one transaction." People v. Thurston, 255 Ill.App.3d 512, 514-15, 626 N.E.2d 426, 427, 193 Ill.Dec. 393 (1994);
see also People v. Moore, 301 Ill.App.3d 728, 735, 704 N.E.2d 80, 85, 234 Ill.Dec. 922 (1998) (in the case of a conflict between the oral pronouncement of the sentence and the written sentencing order, the oral pronouncement controls).
[¶20] We must also determine whether the assessment is a fine or a fee. People v. Jones, 223 Ill.2d 569, 598, 861 N.E.2d 967, 984, 308 Ill.Dec. 402 (2006). A " fee" is defined as a charge that " seeks to recoup expenses" that the State has incurred or " 'compensat[es]' the state for some expenditure incurred in prosecuting the defendant." Id. at 582, 861 N.E.2d at 975. A " fine," however, is " punitive in nature" and is " a pecuniary punishment imposed as part of a sentence on a person convicted of a criminal offense." (Internal quotation marks omitted.) Id. at 581, 861 N.E.2d at 975. " To determine whether an assessment is a fine or a fee and whether the assessment may be imposed on each count within a defendant's case, we look to the language of the statutes providing for their imposition." Warren, 2014 IL App. (4th) 120721, ¶ 92.
[¶21] Because the issues presented are ones of statutory construction, our review is de novo. People v. Gutman, 2011 IL 110338, ¶ 12, 959 N.E.2d 621, 355 Ill.Dec. 207. We first address the fees imposed by the circuit clerk, followed by any fines.
[¶22] A. Fees
[¶23] Defendant argues, and the State concedes, the circuit clerk improperly imposed quadruplicate assessments-- i.e., one for each count within his case--and the additional assessments must be vacated under Alghadi, 2011 IL App. (4th) 100012, 960 N.E.2d 612, 355 Ill.Dec. 730. We do not accept the State's concession regarding quadruplicate fines and fees. In Larue, 2014 IL App. (4th) 120595, ¶ 59, 10 N.E.3d 959, and Warren, 2014 IL App. (4th) 120721, ¶ 90, we declined to apply our own decision in Alghadi, and instead
followed the Second District's approach in People v. Pohl, 2012 IL App. (2d) 100629, 969 N.E.2d 508, 360 Ill.Dec. 698, and People v. Martino, 2012 IL App. (2d) 101244, 970 N.E.2d 1236, 361 Ill.Dec. 290. Accordingly, as set forth below, we will examine the statutory language authorizing or mandating each assessment to determine ...