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People v. Mullen

Court of Appeals of Illinois, First District, First Division

February 5, 2018

DAVID MULLEN, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 14 CR 17062 Honorable Vincent M. Gaughan, Judge Presiding.

          JUSTICE MIKVA delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Harris concurred in the judgment and opinion.



         ¶ 1 Defendant David Mullen was convicted of robbery. Mr. Mullen does not challenge his conviction. The issues in his appeal concern only the fines and fees imposed in his case. Mr. Mullen argues that the trial court erred in assessing a $500 public defender attorney fee against him because he was not provided with the statutorily mandated hearing. Mr. Mullen also contends that the trial court erred by not giving him a presentence incarceration credit and by failing to properly calculate which monetary assessments were eligible for offset by such a credit. For the following reasons, we remand for a statutorily compliant hearing on whether Mr. Mullen should be required to reimburse the State for any part of the cost of his representation by the public defender's office. We also direct that Mr. Mullen's fines and fees order be modified to accurately reflect the presentence incarceration credit to which he is entitled.

         ¶ 2 I. BACKGROUND

         ¶ 3 Mr. Mullen was charged with armed robbery and unlawful restraint. He was appointed a public defender. Prior to trial, the State filed a motion for reimbursement of funds for Mr. Mullen's use of the services of the public defender's office.

         ¶ 4 At Mr. Mullen's bench trial, the State presented witnesses who testified that, on September 13, 2014, Mr. Mullen followed Nyiesha Maclin into the vestibule of her apartment building. Once inside, Mr. Mullen grabbed Ms. Maclin by the neck and threw her against a wall. Mr. Mullen took Ms. Maclin's purse, keys, cell phone, and a ring. Ms. Maclin's cell phone had a remote tracking application, which Chicago police officers used to track her phone to a liquor store. At the store, the officers had Ms. Maclin remotely trigger her cell phone's alarm, allowing them to locate and arrest Mr. Mullen. The trial court found Mr. Mullen guilty of robbery and unlawful restraint. The court merged Mr. Mullen's unlawful restraint conviction into his robbery conviction, and the case proceeded to sentencing.

         ¶ 5 Because of his criminal background, the trial court sentenced Mr. Mullen as a Class X offender to seven years' imprisonment. At the end of the sentencing hearing, Mr. Mullen's public defender had the following exchange with the court regarding the State's motion for reimbursement of the cost of the public defender's representation:

         "THE COURT: How many times have you appeared on this?

DEFENSE COUNSEL: Seven, your Honor.
THE COURT: You went to trial on this?
DEFENSE COUNSEL: Yes, your Honor.
THE COURT: Attorney fees are $500."

         ¶ 6 In addition to the public defender fee, the other fines and fees assessed against Mr. Mullen appear on a form titled "ORDER ASSESSING FINES, FEES AND COSTS." It is a preprinted order provided by the clerk of the circuit court of Cook County. This order, which will be referred to as the fines and fees order, lists certain assessments as "FINES OFFSET by the $5 per day pre-sentence incarceration credit pursuant to 725 ILCS 5/110-14(a)." In Mr. Mullen's case, the fines imposed in this category included the following: a $10 mental health court fine (55 ILCS 5/5-1101(d-5) (West 2014)), a $5 youth diversion/peer court fine (id. § 5-1101(e)), a $5 drug court fine (id. § 5-1101(f)), and a $30 children's advocacy center fine (id. § 5-1101(f-5)).

         ¶ 7 The fines and fees order also lists "FINES NOT OFFSET by the $5 per-day pre-sentence incarceration credit" (emphasis in original), which Mr. Mullen had none of, and "FEES AND COSTS NOT OFFSET by the $5 per-day pre-sentence incarceration credit" (emphasis in original), including the following: a $190 felony complaint filing fee (705 ILCS 105/27.2a(w)(1)(A) (West 2014)), a $60 felony complaint conviction fee (55 ILCS 5/4-2002.1(a) (West 2014)), a $20 probable cause hearing fee (id.), a $15 automation fee (705 ILCS 105/27.3a(1.5) (West 2014)), a $15 state police operations fee (id.), a $2 public defender records automation fee (55 ILCS 5/3-4012 (West 2014)), a $2 state's attorney records automation fee (id. § 4-2002.1(c)), a $15 document storage fee (705 ILCS 105/27.3c (West 2014)), a $5 electronic citation fee (id. § 27.3e), a $25 court services fee (55 ILCS 5/5-1103 (West 2014)), a $50 court system fee (id. § 5-1101(c)), a $10 arrestee's medical costs fund fee (730 ILCS 125/17 (West 2014)), and a $10 probation and court services operations fee (705 ILCS 105/27.3a(1.1) (West 2014)).

         ¶ 8 Mr. Mullen's fines and fees order reflects that he spent 263 days in pretrial custody and simply states "(Allowable credit toward fine will be calculated), " without specifying what monetary credit Mr. Mullen should receive for his presentence incarceration.

         ¶ 9 II. JURISDICTION

         ¶ 10 Mr. Mullen was sentenced on June 2, 2015, and timely filed his notice of appeal on June 5, 2015. This court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 and 606, governing appeals from final judgments of conviction in criminal cases (Ill. S.Ct. Rs. 603, 606 (eff. Feb. 6, 2013)).

         ¶ 11 III. ANALYSIS

         ¶ 12 On appeal, Mr. Mullen argues that the $500 public defender attorney fee assessed against him should be vacated because the trial court imposed it without first conducting a proper hearing under section 113-3.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-3.1(a) (West 2014)). The State agrees but argues that we should remand for a statutorily compliant hearing rather than vacate the fee outright. Mr. Mullen also asks that we amend his fines and fees order, both because the trial court failed to give him $5 per day of credit for the 263 days he spent in presentence incarceration, and because the court improperly categorized certain assessments as fees rather than fines, making them not subject to that credit. The State agrees ...

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