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People v. Grigorov

Court of Appeals of Illinois, First District

October 10, 2017

GEORGE GRIGOROV, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 13-CR-20167; the Hon. Thomas P. Fecarotta, Jr., Judge, presiding.

          Michael J. Pelletier, Patricia Mysza, and Katie Anderson, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and Nancy Kisicki, Assistant State's Attorneys, of counsel), for the People.

          Panel MASON JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Neville and Justice Pierce concurred in the judgment and opinion.


          MASON JUSTICE.

         ¶ 1 Pursuant to a negotiated guilty plea, defendant George Grigorov[1] was convicted of aggravated driving under the influence of alcohol (ADUI) and driving on a revoked or suspended license. He was sentenced to concurrent prison terms of six and three years with fines and fees. Grigorov now appeals from an order denying his petition for revocation of fines based upon his alleged inability to pay. On appeal, he has abandoned his claim regarding inability to pay, but he contends for the first time that he should receive presentencing detention credit against his fines and that certain of his fines and fees were erroneously assessed. For the reasons stated below, we grant the requested presentencing detention credit, but find that we lack jurisdiction over Grigorov's other newly raised claims and therefore affirm the denial of his petition.

         ¶ 2 Grigorov was charged with ADUI and felony driving on a revoked or suspended license allegedly committed on or about September 28, 2013. On April 10, 2014, he pled guilty to one count of each offense in exchange for concurrent prison terms of six and three years with mandatory supervised release and "all mandatory fines, fees, and court costs." Following the requisite admonishments, inquiries, stipulation to a factual basis for the plea, and findings, the court sentenced Grigorov pursuant to the agreement. The court admonished Grigorov of his appeal rights, including the requirement of a timely written motion to withdraw his plea. Grigorov did not file either a motion to withdraw his plea or a notice of appeal within 30 days of his April 10 plea and sentencing.

         ¶ 3 In August 2014, Grigorov filed a motion, requesting that the court vacate $6000 in imposed "assessments, " including a $5000 DUI offense fine, because of his inability to pay. (The motion was mailed in mid-August and stamped "filed" in the circuit court in mid-September.) In support, Grigorov alleged that he earned only $14.40 monthly in prison, would be required to find employment and housing upon his release despite his criminal record, had no property, and had "no family with the financial means to assist him." Grigorov did not argue that the fines and fees were erroneously assessed, but only his present and future inability to pay them.

         ¶ 4 On September 17, 2014, the court denied the motion without findings, and Grigorov filed the present appeal. Here, Grigorov has abandoned his claim that his fines should be revoked because he is unable to pay them. Rather, he now contends that (i) he should receive $975 in presentencing detention credit against his fines pursuant to section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2012)) and (ii) certain of his fines and fees were erroneously assessed.

         ¶ 5 Generally, the circuit court loses jurisdiction to alter a sentence after 30 days. People v. Flowers, 208 Ill.2d 291, 303 (2003). An exception to this rule is found in section 5-9-2, which provides that "the court, upon good cause shown, may revoke the fine or the unpaid portion or may modify the method of payment." 730 ILCS 5/5-9-2 (West 2014). A section 5-9-2 petition is a freestanding collateral action, "allowing defendants to seek financial relief at any appropriate time, " even after the 30-day time limit has passed. People v. Mingo, 403 Ill.App.3d 968, 972 (2010). Accordingly, the trial court had jurisdiction over Grigorov's petition, and we have jurisdiction over Grigorov's timely appeal from the denial of that petition. Id. at 973.

         ¶ 6 But in this appeal, Grigorov is not contending that his section 5-9-2 petition was erroneously denied. Rather than pursuing the claims he raised in that petition, he raises entirely new and unrelated claims that challenge a portion of his sentence as erroneous. Thus, the question is whether Grigorov may raise these claims for the first time on appeal as part of a collateral action under section 5-9-2.

         ¶ 7 With regard to his claim for presentencing detention credit, the answer is yes because section 110-14 permits the award of credit merely "upon application of the defendant." 725 ILCS 5/110-14 (West 2012). Based on this statutory language, our supreme court has held that a defendant can apply for that credit "at any time and at any stage of court proceedings, even on appeal in a postconviction proceeding." People v. Caballero, 228 Ill.2d 79, 88 (2008). Of course, a distinction here is that Grigorov's appeal does not challenge the ruling he purported to appeal, whereas the petitioner in Caballero did, in fact, challenge the denial of his postconviction petition and raised the per diem credit issue as an add-on issue. Id. at 82. But we view our supreme court's language in Caballero as support for allowing Grigorov to seek the per diem credit here. Id. at 88 ("[I]f, as in this case, the basis for granting the application of the defendant is clear and available from the record, the appellate court may, in the 'interests of an orderly administration of justice, ' grant the relief requested.").

         ¶ 8 Grigorov's remaining claims do not fare as well, since they are outside the scope of his section 5-9-2 appeal and there is no statute authorizing him to raise such claims at any time. As this court has explained: "This is a collateral appeal, and, beyond the dismissal itself, defendant is strictly limited in what he may raise. He may raise any claim that may be raised at any time. But he may not collaterally attack his sentence as statutorily unauthorized." People v. Buffkin, 2016 IL App (2d) 140792, ¶ 9; see also People v. Speed, 318 Ill.App.3d 910, 914-15 (2001) (where defendant appealed from sentence entered upon revocation of his probation, the court was without jurisdiction to consider alleged errors in the underlying guilty plea proceeding).

         ¶ 9 The Buffkin defendant appealed the dismissal of his postconviction petition but did not assert any error in that dismissal; instead, he sought presentence credit under section 110-14 and challenged the imposition of a DNA analysis fee. The Buffkin court held that the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2006)) did not grant jurisdiction over defendant's fee challenge, which was beyond the scope of the appeal. Buffkin, 2016 IL App (2d) 140792, ¶ 9. Similarly, section 5-9-2 does not grant us jurisdiction over Grigorov's challenges to his fines and fees, where all of them are outside the scope of the particular order being appealed from, some of them are outside the scope of section 5-9-2 altogether (since section 5-9-2 only deals with revocation of fines, not fees), and none of them were ever raised before the trial court. See In re Appointment of Special State's Attorney, 305 Ill.App.3d ...

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