from the Circuit Court of the 14th Judicial Circuit,
Whiteside County, Illinois Circuit No. 13-CF-365 Honorable
Stanley B. Steines, Judge, Presiding
Attorneys for Appellant: James E. Chadd, Pater A. Carusona,
and James Wozniak, of State Appellate Defender's Office,
of Ottawa, for appellant
Attorneys for Appellee: Terry A. Costello, State's
Attorney, of Morrison (Patrick Delfino, David J. Robinson,
and Thomas D. Arado, of State's Attorneys Appellate
Prosecutor's Office, of counsel), for the People.
JUSTICE O'BRIEN delivered the judgment of the court, with
opinion. Justice Carter concurred in the judgment and
opinion. Justice Holdridge dissented, with opinion.
1 Defendant Scott MacTaggart was charged with criminal sexual
assault and one count of sexual relations within families.
The trial court appointed the public defender to represent
MacTaggart. After $25, 000 bond was posted on
MacTaggart's behalf, the trial court dismissed the public
defender, finding MacTaggart was not indigent. MacTaggart
proceeded to trial with private counsel and was convicted by
the jury and sentenced to a nine-year term of imprisonment.
He appeals his conviction. We vacate MacTaggart's
conviction, reverse, and remand.
2 I. BACKGROUND
3 Defendant Scott MacTaggart was charged with one count of
criminal sexual assault and one count of sexual relations
within families. 720 ILCS 5/11-1.20(a)(2), 11-11 (West 2014).
He was arrested on January 7, 2014, and the court set his
bond at $250, 000, with 10% to apply. MacTaggart submitted a
financial affidavit that indicated he was unemployed, with
monthly expenses of more than $1000 and assets of $17, 106,
which included his vehicle, checking account balance,
household contents, personal property, and cash on hand and
liabilities of $15, 000, consisting of his vehicle loan. The
trial court found MacTaggart was indigent and appointed the
public defender to represent him.
4 On January 10, 2014, the public defender entered an
appearance on MacTaggart's behalf. Also on January 10,
MacTaggart's mother posted bond. On January 16, 2014,
MacTaggart waived his right to a preliminary hearing, was
arraigned, and entered a not guilty plea. The trial court
entered several pretrial orders. Thereafter, discovery took
place. On February 27, 2014, the State filed a motion to
reconsider the appointment of the public defender, arguing
that MacTaggart's financial circumstances had changed
since the court appointed the public defender.
5 A hearing took place on the State's motion. The trial
court and public defender determined that MacTaggart should
proceed pro se, and the appointed public defender,
although present, did not represent MacTaggart at the
hearing. The State argued that because a $25, 000 bond was
posted, MacTaggart could not be considered indigent and had
the $25, 000 available to obtain private counsel. MacTaggart
informed the court that he needed the public defender, he
personally had no money, he had not obtained the bond money
himself, and he could not afford an attorney.
6 The trial court reviewed MacTaggart's financial
affidavit and noted that he had no income but did have
expenses. However, it determined that it could properly
consider the "ability to get credit from a bank or the
availability to get credit from friends and family" in
deciding whether MacTaggart was indigent, noting it was
"obvious" to the court that MacTaggart had
"the resources available to him, the availability to get
loans from friends or family." The trial court dismissed
the public defender, finding MacTaggart was not indigent
since he was able to secure the $25, 000 bond. The court
questioned MacTaggart as to how long he would need to obtain
counsel, to which MacTaggart replied that he did not know
because he had no funds to pay for counsel. The trial court
instructed MacTaggart to inform a potential attorney that
there was $25, 000 bond potentially available to pay attorney
fees. MacTaggart thereafter hired private counsel, who filed
an appearance and a motion for bond assignment, seeking $15,
000 of the bond.
7 A jury trial took place, and the jury found MacTaggart
guilty of both charged offenses. A sentencing hearing was
held on April 8, 2016. The State sought a nine-year sentence
and fines of $25, 000, in addition to other fines and fees.
The defense asked for the statutory minimum sentences and
reminded the court that counsel's only source of
compensation was the bond amount and a $25, 000 fine as
requested by the State would take his entire compensation.
MacTaggart did not address the court. The court imposed a
nine-year term of imprisonment, with an indefinite mandatory
supervised release (MSR) term of three years to natural life,
and fines and fees in the amount of $16, 684. The court found
MacTaggart to be a sex offender and required to comply with
the Sex Offender Registration Act (SORA) (730 ILCS 150/1
et seq. (West 2016)).
8 MacTaggart moved to reconsider his sentence and for a new
trial. A hearing took place. The trial court denied
MacTaggart's motion for a new trial, granted his motion
to reconsider the sentence, and vacated the $10, 000 fine,
leaving an amount due of $6684. On September 26, 2016,
MacTaggart filed an untimely notice of appeal. He completed a
financial affidavit indicating he had no assets, no income,
and monthly expenses of $400. The trial court appointed the
appellate defender to represent MacTaggart on appeal. On
October 13, 2016, appellate ...