People v. Hardman , 2017 IL 121453 ( 2018 )

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People v. Hardman, 2017 IL 121453
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
Court: ANTOINE HARDMAN, Appellant.
Docket No. 121453
Filed November 30, 2017
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Vincent M. Gaughan, Judge, presiding.
Judgment Appellate court judgment affirmed; cause remanded.
Counsel on Michael J. Pelletier, State Appellate Defender, Patricia Mysza, Deputy
Appeal Defender, and Tonya Joy Reedy, Assistant Appellate Defender, of the
Office of the State Appellate Defender, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
Solicitor General, and Michael M. Glick and Garson Fischer,
Assistant Attorneys General, of Chicago, of counsel), for the People.
Justices JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride,
Burke, and Theis concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Antoine Hardman, was convicted of one count of
possessing between 1 and 15 grams of heroin with intent to deliver within 1000 feet of a
school. See 720 ILCS 570/401(c)(1), 407(b)(1) (West 2012). At a sentencing hearing, the
Cook County trial court imposed a public defender fee of $500. See 725 ILCS 5/113-3.1(a)
(West 2012). Hardman appealed, arguing that the State failed to prove that he committed the
offense within 1000 feet of a school, that the public defender fee was imposed without a proper
hearing, and that the mittimus should be amended to reflect the correct name of the offense.
The appellate court affirmed Hardman’s conviction and sentence, vacated the public defender
fee, remanded for a new hearing on whether the public defender fee was appropriate, and
amended the mittimus. 2016 IL App (1st) 140913-U. We allowed Hardman’s petition for leave
to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016).
¶2 BACKGROUND
¶3 With respect to Hardman’s conviction, Hardman only challenges whether the evidence
established that the building at issue was a school. See 720 ILCS 570/407(b)(1) (West 2012).
For that reason, we confine the factual background to the evidence presented about the
building purported to be a school, 646 North Lawndale Avenue.
¶4 The State charged Hardman with one count of possessing between 1 and 15 grams of
heroin with intent to deliver within 1000 feet of “any school *** to wit: Ryerson Elementary
School,” a Class X offense. See 720 ILCS 570/401(c)(1), 407(b)(1) (West 2012). At
Hardman’s arraignment, the court appointed a public defender, and the State filed a motion for
reimbursement for the cost of the public defender. See 725 ILCS 5/113-3.1(a) (West 2012).
¶5 Before trial, the State sought leave to amend the information. The information referred to
“Ryerson Elementary School,” but in pictures taken in the winter of 2014, a sign in front of the
school listed the name as “Laura Ward.” The State indicated that, on July 22, 2013, at the time
of the offense, it believed that the building was called Ryerson Elementary School. However,
when the court asked for the date of the school name change, the State responded that it
believed that it was “this school year” that the name changed to Laura Ward. The State asserted
that the school year “should have started in September.” The court denied the State’s motion to
amend the information, finding that the State could explain the school name discrepancy at
trial.
¶6 At trial, three witnesses testified about the location of the drug transactions. Officer
Harmon of the Chicago police department testified that, on the date of the offense, he was on
duty from 7 a.m. until 4 p.m. as an enforcement officer. Officer Harmon assisted in detaining
Hardman. The State questioned Officer Harmon as to his familiarity with the area:
“Q. Now, how long had you worked in the 11th District on the date of this incident?
A. Well, I’d been in the 11th District nine years.
Q. In your nine years in the 11th District were you familiar with this area where the
arrest occurred?
A. Yes.
Q. Are you familiar with the schools near this address?
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A. I am.
Q. What school is there?
A. Laura Ward School.
Q. Is that what it is currently called?
A. Yes. It changed.
Q. What was the name of the school back on July 22, 2013?
A. Ryerson.”
¶7 Officer Ruggiero, a Chicago police officer, testified that at about 10 a.m. on July 22, 2013,
he was conducting surveillance of the alley at 634 North Ridgeway Avenue. Officer Ruggiero
assisted in detaining Hardman. Officer Ruggiero testified that, in July 2013, he was part of the
“Area North Saturation Team,” assigned to the eleventh district. Officer Ruggiero testified that
he had been an officer in the eleventh district for seven years by that time. The State questioned
Officer Ruggiero as to his familiarity with the area:
“Q. And were you in the vicinity of 634 Ridgeway in Chicago?
A. Yes.
Q. Is that area within the 11th District?
A. Yes.
Q. Can you please describe the six hundred block of North Ridgeway for the jurors?
A. Yes. The area is residential, with buildings and also right next to a school called
Ryerson Elementary School at that time.
Q. You say at that time. Does that school have a different name?
A. Yes.
Q. What is that?
A. Laura Ward.
Q. Now, what is the closest intersection to the area we’re referring to?
A. Huron and Ridgeway.
Q. Are you familiar with that location?
A. Yes.
Q. And how are you familiar with that location?
A. I’ve worked in that area, I was assigned to the 11th District. I’ve done numerous
arrests in that area.
Q. Have you made narcotics related arrests in that area?
A. Yes.
Q. Approximately how many?
A. During a year, around that time of year, at least twenty.
Q. You indicated that you have done surveillance in that area before?
A. Yes.
Q. Approximately how many times?
A. At least twenty times in that part of the year.”
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¶8 On cross-examination, Officer Ruggiero acknowledged that, as a patrol officer, it was his
responsibility to try to keep the streets safe in the area of Ridgeway Avenue. When asked
whether the area within the vicinity of 634 North Ridgeway Avenue was residential, Officer
Ruggiero responded, “Correct. Right across the street from Ryerson Elementary School.”
Officer Ruggiero was asked whether “[p]eople were coming and going, taking their kids to
school, parents” and answered, “[f]airly active neighborhood. It is an active neighborhood.”
¶9 Christopher Lappe, an investigator with the Cook County State’s Attorney’s office,
testified that he measured the distance from 634 North Ridgeway Avenue to “646 North
Lawndale. The Laura Ward Elementary School,” and determined that the distance was 88 feet.
Investigator Lappe testified that the end point for his measurement was “[t]he parking lot for
the Laura Ward.” Investigator Lappe also testified that the school was “formerly called
Ryerson Elementary School.”
¶ 10 Hardman was found guilty of possession of a controlled substance with intent to deliver
within 1000 feet of a school, a Class X felony. 720 ILCS 570/401(c), 407(b)(1) (West 2012).
At the sentencing hearing, the trial court sentenced Hardman to eight years in the Department
of Corrections. The trial court admonished Hardman of his right to appeal and then asked the
State whether it had any other motions. The State reminded the trial court of its motion for
reimbursement of public defender fees. The following exchange occurred between the trial
court and the assistant public defender:
“THE COURT: Ms. Hull, how many times have you appeared on this case?
HULL: Eight times, Judge.
THE COURT: How many?
HULL: Eight.
THE COURT: Eight. All right. And you went to trial. All right. Attorney’s fees
would be appropriate of $500. Thank you.”
¶ 11 On appeal, Hardman argued (1) that the State failed to prove beyond a reasonable doubt
that the building at issue was operating as a school on the date of the offense because the
evidence showed that the building was in flux or in transition around the time of the offense
and (2) that the trial court erred in assessing the $500 public defender reimbursement fee
without considering Hardman’s ability to pay and, since “no hearing” was held within the
statutory time limit on his ability to pay, that the fee should be vacated outright without
remand. Although not relevant here, Hardman also sought to have the mittimus amended to
reflect the correct name of the offense of which he was convicted.
¶ 12 The appellate court affirmed Hardman’s conviction, concluding that the officers’
testimony was sufficient for the trier of fact to conclude that the building located near the
offense was a school. 2016 IL App (1st) 140913-U, ¶ 18. The appellate court agreed that the
trial court erroneously assessed the $500 fee; however, it determined that the proper remedy
was to remand the case to the trial court to hold a proper hearing to consider Hardman’s ability
to pay. Id. ¶ 23.
¶ 13 ANALYSIS
¶ 14 Hardman asserts that the State failed to prove that he was guilty beyond a reasonable doubt
of possession of a controlled substance with intent to deliver within 1000 feet of a school.
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Specifically, Hardman acknowledges that he was proven guilty of the underlying possession of
a controlled substance with intent to deliver charge. See 720 ILCS 570/401(c)(1) (West 2012).
He disputes, however, that the State presented sufficient evidence to prove him guilty of the
enhancement provision, which elevates the penalty where an underlying offense occurs within
1000 feet of the real property comprising a school. See 720 ILCS 570/407(b)(1) (West 2012).
¶ 15 Second, Hardman contends that, because the trial court imposed a public defender fee
without first inquiring into his financial circumstances, in accordance with the requirements of
section 113-3.1(a) of the Code of Criminal Procedure of 1963, “no hearing” took place. Thus,
according to Hardman, the proper remedy is to vacate the fee outright instead of remanding for
a proper hearing. We begin by addressing Hardman’s argument that the State must
demonstrate, for purposes of section 407(b)(1), that a building is an active or operational
school on the date of the offense.
¶ 16 “School” Locality Enhancement
¶ 17 Section 407(b)(1) of the Illinois Controlled Substances Act provides that the offense of
delivery of a controlled substance is a Class X felony when committed within 1000 feet of the
real property comprising any “school.” 720 ILCS 570/407(b)(1) (West 2012). Hardman
acknowledges that the State proved he possessed a controlled substance with intent to deliver.
See 720 ILCS 570/401(c)(1) (West 2012). However, for purposes of proving the locality
enhancement under section 407(b)(1), Hardman disputes that the evidence presented at trial
established that the building at issue was a school.
¶ 18 To establish that an offense occurred within 1000 feet of a school, Hardman asserts that the
State must prove beyond a reasonable doubt that the building at issue was an active or
operational “school” at the time of the offense. To do so, according to Hardman, requires that
the State present particularized evidence, based on a witness’s personal knowledge of an
enhancing location’s actual use at the time of the offense. It is insufficient, for example, for the
State to present testimony of a police officer who simply refers to a building as a “school.” The
State counters that Hardman is essentially asking this court to import an additional element
into the statute—to require proof that the school be “active” or “operating” at the time of the
offense.
¶ 19 Whether the statute requires the State to present particularized evidence of a building’s use
involves a question of statutory interpretation subject to de novo review. See People v. Ward,
215 Ill. 2d 317, 324 (2005) (“Defendant’s sufficiency-of-the-evidence argument devolves into
an issue of statutory interpretation[.]”). “The cardinal rule of statutory construction is to
ascertain and give effect to the legislature’s intent.” People v. Johnson, 2017 IL 120310, ¶ 15.
“The best indication of legislative intent is the statutory language, given its plain and ordinary
meaning.” Hall v. Henn, 208 Ill. 2d 325, 330 (2003).
¶ 20 No section of the Illinois Controlled Substances Act defines the term “school.” 720 ILCS
570/101 et seq. (West 2012). However, the term has acquired a settled meaning through
judicial construction and legislative acquiescence. See People v. Young, 2011 IL 111886
(relying on the Criminal Code of 1961 (720 ILCS 5/1-1 et seq. (West 2008))). Courts look to
the definition of “school” contained within the Criminal Code of 2012 (Criminal Code), which
provides that a school “means a public, private, or parochial elementary or secondary school,
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community college, college, or university and includes the grounds of a school.” 720 ILCS
5/2-19.5 (West 2012).
¶ 21 Hardman contends that this court’s decision in Young, 2011 IL 111886, requires
particularized evidence of the location’s use to prove the enhancing location element. In
Young, this court considered whether the term “school” contained in section 407(b)(2) (720
ILCS 570/407(b)(2) (West 2008)) encompassed preschools. Young, 2011 IL 111886, ¶ 1.
There, the defendant challenged whether the State had provided sufficient evidence to prove
that the offense occurred within 1000 feet of a school. Id. At trial, there was testimony that the
offense occurred within 1000 feet of the “ ‘High Mountain Church and Preschool,’ ” but no
other testimony was offered to describe the school or its attendees. Id. ¶ 5. In light of
legislative acquiescence and the Criminal Code’s definition of the term “school,” this court
concluded that the term did not encompass preschools. Id. ¶¶ 16-19. Hardman asserts that,
“[g]iven this Court’s conclusion that not every school or school building constitutes a ‘school’
under the enhancing statute, there must be additional evidence of what happens in the building,
not just conclusory testimony that the building is a school.”
¶ 22 Hardman maintains that, consistent with Young, several appellate court decisions have
followed suit in requiring that particularized evidence be presented to establish that an offense
occurred within a statutory enhancing location. We briefly highlight these cases, which
involve other types of statutory locality enhancements.
¶ 23 At issue in People v. Morgan was whether the State had provided sufficient proof that
Bedrosian Park was a “public park” for purposes of the Illinois Controlled Substances Act (720
ILCS 570/407(b)(1) (West 1996)). 301 Ill. App. 3d 1026, 1031 (1998). Although the Illinois
Controlled Substances Act does not define “public park,” the Morgan court noted that “public
park” had been defined by the court in other contexts as “a piece of ground in a city or village
set apart for ornament or to afford the benefit of air, exercise or amusement.” (Internal
quotation marks omitted.) Id. Hardman contends that, in Morgan, sufficient proof had been
presented because police officer testimony demonstrated that, at the relevant time, the park
grounds and its adjacent parking lot were open to and used by the public and that the grounds
encompassed several enclosed spaces with recreational facilities. Also, the defendant had
testified that he played basketball at the park on the day of the offense. Id. at 1032. Hardman
cites Morgan approvingly and asserts that Morgan demonstrates that the particularized
testimony, based on personal knowledge and observations of the area on the day in question,
established that Bedrosian Park was a public park in fact and not merely in name.
¶ 24 In People v. Fickes, the appellate court held that, to support a charge for aggravated
participation in methamphetamine trafficking, “the State must present evidence, from a
witness or witnesses who are sufficiently familiar with the area in question, that supports a
reasonable inference that the building in question was functioning primarily as a place of
worship on the date of the offense.” 2017 IL App (5th) 140300, ¶ 27. There, the defendant’s
conviction was reduced from aggravated participation in methamphetamine manufacturing to
simple participation in methamphetamine manufacturing because the State failed to present
sufficient evidence to show that the offense occurred within 1000 feet of St. James Lutheran
Church. Id. The appellate court concluded that no reasonable jury could have inferred that the
building was functioning primarily as a church on the date of the offense because, “[a]s a
matter of both logic and common sense, there is no inherent rational connection between a
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witness’s mere use of the term ‘church’ at trial and the fact that the ‘church’ was or was not
functioning primarily as a place of worship on a particular date prior to trial.” Id. ¶ 24.
¶ 25 Hardman relies on other appellate cases involving churches. In People v. Sparks, the
appellate court considered whether the State had demonstrated that the Salvation Army chapel
was a church for purposes of section 407(b)(2) of the Illinois Controlled Substances Act (720
ILCS 570/407(b)(2) (West 2000)). 335 Ill. App. 3d 249, 251 (2002). The Sparks court noted
that, in determining whether a building is a church, the “appropriate focus must be on the
manner in which the place is used, i.e., whether its primary use is for religious worship.” Id. at
256. The Sparks court concluded that the State had established beyond a reasonable doubt that
the chapel was a church, given the testimony of the chapel’s minister, who testified that the
chapel was used exclusively for religious services. Id. It did not matter that services were only
held once a week, that the chapel was part of a larger building used for nonreligious purposes,
or that the chapel lacked certain traditional physical characteristics of a church. Id. at 256-57.
¶ 26 In People v. Ortiz, the appellate court held that the State failed to prove beyond a
reasonable doubt that, on the date of the offense, there was a church within 1000 feet of the site
of the offense. 2012 IL App (2d) 101261, ¶ 13. Although an officer testified that he measured
the distance from the drug transaction to the building at issue, he did not testify to the date on
which he conducted the measurement. Id. ¶ 11. Also, no testimony was presented to establish
when photographs of the building were taken or whether the photographs accurately
represented the building as of the date of the offense. Id. For these reasons, the Ortiz court
concluded that it had no way of knowing whether Emmanuel Baptist Church existed on the
date of the offense. Id.
¶ 27 In People v. Cadena, the appellate court held that the evidence was insufficient to prove
that Evangelical Covenant Church was an active church on the date that the defendant was
arrested for purposes of section 407(b)(1) of the Illinois Controlled Substances Act (720 ILCS
570/407(b)(1) (West 2008)). 2013 IL App (2d) 120285, ¶ 1. The Cadena court noted that the
State had provided even less evidence than it had in Ortiz. Id. ¶ 13. Although the building at
issue was, by name, a church, the Cadena court observed that Sparks requires proof of how the
building was used. Id. ¶ 15. Specifically, the State did not present testimony from a witness
with personal knowledge that the building was an active church on the date of the offenses. Id.
¶ 18. The Cadena court observed, however, that a police officer who testified to being familiar
with the church due to regular patrol of the neighborhood would have had sufficient personal
knowledge to testify as to the church’s active status. Id.
¶ 28 Finally, Hardman relies on People v. Boykin, which considered whether the State had
proved that “Our Lady of Peace” was a school for purposes of the enhancement under section
407(b)(2) (720 ILCS 570/407(b)(2) (West 2008)). 2013 IL App (1st) 112696, ¶ 5. Relying on
Ortiz and Cadena, the defendant argued that the evidence was insufficient. Id. ¶¶ 11-12. The
Boykin court found that the case was analogous to Cadena, where “there was no evidence of
how the testifying officer would have known that the church was active on the dates of the
offenses.” Id. ¶¶ 14-15. In Boykin, the State had presented officer testimony that the offense
took place within 1000 feet of a “school,” but “there was no evidence presented to show how
those officers had personal knowledge of the operation of that building.” Id. ¶ 15. Citing
Cadena, the Boykin court noted that “[t]he officers did not testify that they lived in the area or
that they regularly patrolled the neighborhood, so as to allow an inference that they had
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personal knowledge as to whether the school was in operation on the date of the offense.” Id.
The Boykin court also commented that “there was even less evidence presented than in
Cadena, as there were no questions asked at trial regarding whether Our Lady of Peace was an
‘active’ school.” Id. For these reasons, the Boykin court reversed the defendant’s conviction for
unlawful delivery of a controlled substance within 1000 feet of a school and affirmed the
defendant’s conviction for unlawful delivery of a controlled substance. Id. ¶ 17.
¶ 29 Turning to Young, we disagree with Hardman’s contention that Young requires the State to
present evidence as to whether a school is active or operational on the date of the offense. The
decisive factor in Young was that the term “school” did not encompass the type of school at
issue therein. 2011 IL 111886, ¶ 19 (the term “school” was not defined “to include
preschools”). This court did not base its holding upon whether the State had presented enough
particularized evidence as to whether the preschool was active or operational on the day of the
offense. Such evidence was not necessary to the conclusion that the term “school” did not
extend to preschools for purposes of the Controlled Substances Act.
¶ 30 With the exception of Boykin, we find each of the appellate court cases distinguishable
because each dealt with a statutory enhancing location other than a school. Morgan involved a
“public park” that, based on its established definition, necessarily required evidence relevant to
whether the property at issue was “a piece of ground in a city or village set apart for ornament
or to afford the benefit of air, exercise or amusement.” (Internal quotation marks omitted.) 301
Ill. App. 3d at 1031.
¶ 31 Fickes, Sparks, Ortiz, and Cadena do not support Hardman’s position for two reasons.
Fickes, 2017 IL App (5th) 140300; Sparks, 335 Ill. App. 3d at 251; Ortiz, 2012 IL App (2d)
101261; Cadena, 2013 IL App (2d) 120285. First, each of these cases involved the statutory
enhancing location of a church. Subsections 407(b)(1)-(6) provide for aggravated penalties for
drug violations occurring “within 1,000 feet of the real property comprising any church,
synagogue, or other building, structure, or place used primarily for religious worship.”
(Emphasis added.) 720 ILCS 570/407(b)(1)-(6) (West 2012). Conversely, subsections
407(b)(1)-(6) do not speak to any “use” requirement in the context of a school locality
enhancement. Id. This court “will not depart from the plain statutory language by reading into
it exceptions, limitations, or conditions” that are not found in a statute. People v. Roberts, 214
Ill. 2d 106, 116 (2005).
¶ 32 Second, section 407(c) makes clear that the State need not demonstrate that a building was
active or operational on the day of the offense. See 720 ILCS 570/407(c) (West 2012). Section
407(c) provides: “[r]egarding penalties prescribed in subsection (b) for violations committed
in a school or on or within 1,000 feet of school property, the time of day, time of year and
whether classes were currently in session at the time of the offense is irrelevant.” 720 ILCS
570/407(c) (West 2012); People v. Daniels, 307 Ill. App. 3d 917, 929 (1999) (“The inclusion
of section 407(c) is the legislature’s way of ensuring that schools remain drug-free zones even
when school is not in session.”). Section 407(c) is directed only at schools. 720 ILCS
570/407(c) (West 2012). Section 407 does not except such circumstances from consideration
for any other statutory enhancing location. Requiring particularized evidence as to a purported
school building’s active or operational status on the day of an offense would run counter to
section 407(c)’s plain language.
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¶ 33 Boykin also fails to support Hardman’s position. Boykin’s reasoning and holding is based
on Cadena, which involved the enhancing location of a church. As discussed, subsections
407(b)(1)-(6) require the State to demonstrate that the purported church was “used primarily
for religious worship.” See 720 ILCS 570/407(b)(1)-(6) (West 2012). Conversely, subsections
407(b)(1)-(6) and section 407(c) make clear that the State need not present particularized
evidence as to a purported school’s use. Requiring such evidence would necessarily and
impermissibly read a use requirement into the statute and conflict with section 407(c).
¶ 34 For these reasons, we reject Hardman’s argument that, for purposes of demonstrating that
an offense took place within 1000 feet of a school under section 407(b), the State must present
particularized evidence that a building is an “active” or “operational” school on the day of the
offense. We now address whether the testimony presented at Hardman’s trial was sufficient to
prove that Hardman’s underlying offense occurred within 1000 feet of a school. 720 ILCS
570/407(b)(1) (West 2012).
¶ 35 Sufficiency of the Evidence
¶ 36 Having determined that, for purposes of the Illinois Controlled Substances Act, the State
need not present particularized evidence that a building is an “active” or “operational” school
on the day of the offense, we now consider the sufficiency of the evidence presented at
Hardman’s bench trial.
¶ 37 “In reviewing the sufficiency of the evidence in a criminal case, our inquiry is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt.” People
v. Baskerville, 2012 IL 111056, ¶ 31. All reasonable inferences from the evidence must be
drawn in favor of the prosecution. People v. Martin, 2011 IL 109102, ¶ 15. “This standard of
review does not allow the reviewing court to substitute its judgment for that of the fact finder
on questions involving the weight of the evidence or the credibility of the witnesses.” People v.
Jackson, 232 Ill. 2d 246, 280-81 (2009). “[I]n weighing evidence, the trier of fact is not
required to disregard inferences which flow normally from the evidence before it, nor need it
search out all possible explanations consistent with innocence and raise them to a level of
reasonable doubt.” Id. at 281. This court “will not reverse a criminal conviction unless the
evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt
of the defendant’s guilt.” People v. Campbell, 146 Ill. 2d 363, 375 (1992).
¶ 38 Taking the evidence in the light most favorable to the State, we find that a rational trier of
fact could have found that the testimony gave rise to a reasonable inference that 646 North
Lawndale Avenue was a school. Hardman asserts that, because no one with personal
knowledge of the building’s operation on the date of the offense testified, the State failed to
prove that 646 North Lawndale Avenue was a school. As discussed, Hardman’s particularized
evidence argument fails. Officer Harmon’s and Officer Ruggiero’s testimony demonstrated
familiarity with 646 North Lawndale Avenue and the surrounding area.
¶ 39 Officer Ruggiero stated that he had worked in the eleventh district for seven years, that he
was a patrol officer there, and that he had made “numerous arrests in that area.” Officer
Ruggiero described the area where the offense occurred as residential and said that it took
place “right next to a school called Ryerson Elementary School at that time.” Officer Ruggiero
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had also previously conducted surveillance of the area at least 20 times during that part of the
year.
¶ 40 Hardman suggests that Officer Ruggiero demonstrated a lack of personal knowledge
because he merely responded on cross-examination that “[i]t is an active neighborhood” when
asked whether people were coming and going, taking their kids to school. Again, Hardman’s
contention relies on the assumption that Officer Ruggiero was required to know exactly what
happened in the building on the date of the offense. As mentioned, such exacting testimony is
not necessary. Under section 407(c), whether people were coming and going, taking their kids
to school, is irrelevant to the building’s status as a school. 720 ILCS 570/407(c) (West 2012)
(“[T]he time of day, time of year and whether classes were currently in session at the time of
the offense [are] irrelevant.”).
¶ 41 Officer Harmon testified that he had worked in the eleventh district for nine years, that he
was familiar with the area where the offense occurred, including the schools near that location,
and that the school was named Ryerson on the date of the offense. Officer Harmon also
testified that the name of the school had changed to Laura Ward.
¶ 42 Hardman maintains that, “[a]t best, the State’s evidence showed that the building was
undergoing changes that summer, as indicated by the different names.” We reject this
argument. A rational trier of fact could have found that Ryerson Elementary became Laura
Ward Elementary. A change in school name, alone, does not mean that 646 North Lawndale
Avenue stopped being a school during the transition.
¶ 43 Hardman also cites People v. Ross, 229 Ill. 2d 255 (2008), contending that to presume that
a building that is labeled as a school is, in fact, a school unless rebutted by proof to the contrary
creates an unconstitutional mandatory rebuttable presumption. This argument fails. Nowhere
does section 407 state that the trier of fact must presume that, once a witness uses the word
“school” to describe a building, the building is in fact a school. The trier of fact was at all times
free to accept or reject a conclusion that the evidence demonstrated that 646 North Lawndale
Avenue was a school. The very case upon which Hardman relies, Boykin, explained that “[t]he
officers did not testify that they lived in the area or that they regularly patrolled the
neighborhood, so as to allow an inference that they had personal knowledge as to whether the
school was in operation on the date of the offense.” 2013 IL App (1st) 112696, ¶ 15.
¶ 44 In the instant case, not only did the evidence show that 646 North Lawndale Avenue was
named as a school, Officer Harmon’s and Officer Ruggiero’s testimony revealed their
familiarity with the area where 646 North Lawndale Avenue was located. Both officers had
worked in the area for years, and both knew enough about the area to know that the name of the
school had changed. As mentioned, a “trier of fact is not required to disregard inferences which
flow normally from the evidence.” People v. Jackson, 232 Ill. 2d 246, 281 (2009). The logical
inference, here, is that both officers knew the area well enough to know that 646 North
Lawndale Avenue was still a school, despite the school’s change in name.
¶ 45 We agree with the appellate court that the status of 646 North Lawndale Avenue as a
school could be inferred from the testimony of two officers with demonstrated familiarity with
the area due to their having worked in the area for years. Therefore, we affirm Hardman’s
conviction for possession of a controlled substance with intent to deliver within 1000 feet of a
school. 720 ILCS 570/407(b)(1) (West 2012). We now address whether Hardman is entitled to
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outright vacatur of the public defender reimbursement fee or remand for a proper hearing.
¶ 46 Public Defender Reimbursement Fee
¶ 47 Section 113-3.1(a) of the Code of Criminal Procedure of 1963 permits circuit courts to
order defendants who receive the services of appointed counsel to pay a public defender
reimbursement fee. 725 ILCS 5/113-3.1(a) (West 2012). The prior version of this statute did
not provide for a hearing or for consideration of a defendant’s ability to pay the fee. People v.
Love, 177 Ill. 2d 550, 557 (1997). Thus, in People v. Cook, this court held that “[a] summary
decision which orders reimbursement without affording a hearing with opportunity to present
evidence and be heard acts to violate an indigent defendant’s right to procedural due process.”
81 Ill. 2d 176, 186 (1980). Accordingly, the Illinois legislature enacted section 113-3.1 to
remedy the due process violation identified in Cook by requiring that a trial court conduct a
hearing that considers the defendant’s financial ability to pay the fee before the fee may be
ordered. Love, 177 Ill. 2d at 559. The hearing must occur within 90 days of the entry of the
final order disposing of the case. 725 ILCS 5/113-3.1(a) (West 2012).
¶ 48 Hardman asserts that the circuit court violated his due process rights when it failed to notify
him that it was considering imposing the fee and did not provide Hardman an opportunity to
present evidence regarding his ability to pay the fee. See People v. Somers, 2013 IL 114054,
¶ 14 (“[T]he court must give the defendant notice that it is considering imposing the fee, and
the defendant must be given the opportunity to present evidence regarding his or her ability to
pay and any other relevant circumstances.”). Thus, Hardman contends that the circuit court
improperly assessed the $500 public defender reimbursement fee without holding a hearing,
pursuant to section 113-3.1(a), to determine his ability to pay the fee. See 725 ILCS
5/113-3.1(a) (West 2012). Hardman also argues that, in light of judicial economy and public
policy, no case should be remanded for the imposition of a public defender fee where the
defendant did not receive a proper hearing the first time.
¶ 49 The appellate court concluded, and the State conceded, that the trial court did not conduct a
sufficient hearing. 2016 IL App (1st) 140913-U, ¶ 19. We note that, although Hardman failed
to object to the imposition of the public defender reimbursement fee at his sentencing hearing,
the issue is not forfeited. See Love, 177 Ill. 2d at 564 (1997); People v. Carreon, 2011 IL App
(2d) 100391, ¶ 11 (“where a trial court imposes this fee without following the appropriate
procedural requirements, application of the forfeiture rule is inappropriate”).
¶ 50 At issue is whether the proper remedy calls for outright vacatur of the fee or remand for a
compliant hearing. Whether the appellate court should have vacated the public defender
reimbursement fee outright instead of remanding for a hearing on his ability to pay raises a
question of law, subject to de novo review. See People v. Gutierrez, 2012 IL 111590, ¶ 16.
¶ 51 Section 113-3.1(a) provides:
“Whenever under either Section 113-3 of this Code or Rule 607 of the Illinois Supreme
Court the court appoints counsel to represent a defendant, the court may order the
defendant to pay to the Clerk of the Circuit Court a reasonable sum to reimburse either
the county or the State for such representation. In a hearing to determine the amount of
the payment, the court shall consider the affidavit prepared by the defendant under
Section 113-3 of this Code and any other information pertaining to the defendant’s
financial circumstances which may be submitted by the parties. Such hearing shall be
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conducted on the court’s own motion or on motion of the State’s Attorney at any time
after the appointment of counsel but no later than 90 days after the entry of a final order
disposing of the case at the trial level.” 725 ILCS 5/113-3.1(a) (West 2012).
¶ 52 Hardman contends that, if “no hearing” on a defendant’s ability to pay and his financial
circumstances took place within 90 days, this court has held that the proper result is to vacate
the fee outright. See Gutierrez, 2012 IL 111590, ¶ 28. Therefore, because the trial court asked
no questions about Hardman’s financial circumstances and gave him no opportunity to present
evidence, Hardman maintains that the proceedings did not meet the threshold requirement to
be considered “some sort of a hearing” under Somers. See 2013 IL 114054, ¶¶ 14-15. Because
“no hearing” was held within 90 days of the final order disposing of the case at the trial level,
as required under section 113-3.1(a), Hardman contends that the fee must be vacated without
remand.
¶ 53 The State argues that section 113-3.1(a)’s timing requirement governs the trial court’s
assessment of a public defender fee in the first instance, not the remedies available on appeal
from a timely, but improper, assessment. The State acknowledges that the hearing was
deficient but asserts that a hearing still took place. The State rejects Hardman’s contention that
Gutierrez holds that, whenever a hearing has not been held within 90 days, that remand is an
inappropriate remedy. Finally, the State asserts that section 113-3.1(a)’s 90-day timing
requirement is directory. However, the State posits that this court need not resolve the issue of
whether section 113-3.1(a) is mandatory or directory because the requirement governs the
timing of the trial court’s assessment of the fee in the first instance.
¶ 54 In Gutierrez, this court considered whether the appellate court had properly remanded for
notice and a hearing on the defendant’s ability to pay a public defender fee. 2012 IL 111590,
¶ 1. There, neither the court nor the State had moved for imposition of the public defender
reimbursement fee. Id. ¶ 24. Rather, the circuit clerk imposed the fee. Id. In explaining that the
cause should not have been remanded, this court stated: “The circuit clerk had no authority to
impose the public defender fee on its own, and, because neither the State nor the circuit court
was seeking a public defender fee, the appellate court should have vacated the fee outright.” Id.
¶ 55 Hardman’s reliance upon Gutierrez is misplaced. In Gutierrez, neither the State nor the
circuit court requested reimbursement. Id. As we explained, “[p]ursuant to statute, a public
defender fee may be imposed only by the circuit court after notice and a hearing on the
defendant’s ability to pay.” (Emphasis added.) Id. ¶ 26. The record did not indicate that the
circuit court was considering ordering the imposition of a public defender reimbursement fee.
Id. ¶ 24. Because the fee was imposed by the circuit clerk, who was without the statutory
authority to do so, there was no circuit court order for reimbursement. And because there was
no circuit court order for reimbursement of a public defender fee, the appellate court could not
remand for a hearing on an order that did not exist. This court noted that “the statute clearly
does not contemplate the State asking for a public defender fee for the first time when the case
is on appeal.” Id. ¶ 23.
¶ 56 Next, Hardman cites Somers, in which we concluded that the proper remedy was to remand
for a proper hearing. 2013 IL 114054, ¶ 20. Hardman maintains that Somers is distinguishable
because, there, the circuit court had asked three questions about the defendant’s employment
status before imposing the fee. Id. ¶ 4. Essentially, Hardman argues that, despite the
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imposition of a fee at his sentencing hearing, no hearing occurred because the circuit court
failed to inquire into his financial circumstances as the circuit court did in Somers. Id.
¶ 57 In Somers, this court considered whether the appellate court properly remanded for a
proper public defender reimbursement fee hearing when more than 90 days had elapsed since
the trial court’s entry of a final order. Id. ¶ 1. Before imposing the public defender fee, the trial
court asked the defendant the following questions: whether defendant thought he could get a
job when he was released from jail, if defendant would use the money he earned from a job to
pay his fines and costs, and if there was any physical reason why he could not work. Id. ¶ 4.
The defendant appealed, arguing that the trial court had not complied with section 113-3.1(a).
Id. ¶ 6. The defendant asked the appellate court to remand the cause for a proper hearing. Id.
The appellate court did so. Id. However, the defendant subsequently filed a petition for
rehearing, citing Gutierrez and arguing that the cause should not have been remanded because
more than 90 days had elapsed. Id. The appellate court denied the petition for rehearing, and
we allowed the defendant’s petition for leave to appeal. Id. ¶¶ 6-7.
¶ 58 Before this court, the defendant argued that, because more than 90 days had elapsed, the
appellate court was without authority to remand for a hearing because section 113-3.1(a)’s
90-day time limit is mandatory. Id. ¶ 9. The State argued that the actual issue was that the
hearing held by the trial court was insufficient to satisfy section 113-3.1(a)’s requirements. Id.
¶ 13. Because the trial court complied with the statute’s time limit, the State argued that the
court did not need to reach the issue of whether the 90-day time limit is mandatory or directory.
Id.
¶ 59 We agreed that the few questions posed by the trial court to defendant regarding his
employment status were insufficient to satisfy section 113-3.1(a). Id. ¶ 14. We made clear
what is required for a proper hearing pursuant to section 113-3.1(a) and then concluded that a
hearing, albeit an insufficient one, had occurred:
“To comply with the statute, the court may not simply impose the fee in a perfunctory
manner. [Citation.] Rather, the court must give the defendant notice that it is
considering imposing the fee, and the defendant must be given the opportunity to
present evidence regarding his or her ability to pay and any other relevant
circumstances. [Citation.] The hearing must focus on the costs of representation, the
defendant’s financial circumstances, and the foreseeable ability of the defendant to
pay. [Citation.] The trial court must consider, among other evidence, the defendant’s
financial affidavit. [Citations.]
Clearly, then, the trial court did not fully comply with the statute, and defendant is
entitled to a new hearing. Just as clearly, though, the trial court did have some sort of a
hearing within the statutory time period. The trial court inquired of defendant whether
he thought he could get a job when he was released from jail, whether he planned on
using his future income to pay his fines and costs, and whether there was any physical
reason why he could not work. Only after hearing defendant’s answers to these
questions did the court impose the fee. Thus, we agree with the State’s contention that
the problem here is not that the trial court did not hold a hearing within 90 days, but that
the hearing that the court did hold was insufficient to comply with the statute.”
(Emphasis added.) Id. ¶¶ 14-15.
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¶ 60 Because the trial court had complied with the 90-day statutory time period, we determined
that there was no bar to remanding the cause for a proper hearing. Id. ¶ 18.
¶ 61 Since Somers, appellate court panels have determined that “remand is proper if ‘some sort
of a hearing’ was held within the statutory period.” People v. Glass, 2017 IL App (1st) 143551,
¶ 12. However, an appellate conflict has developed due to situations wherein a trial court
afforded a defendant a less sufficient hearing than in Somers. See, e.g., id. ¶ 9 (court asked
defense counsel how many times he had appeared in court, court noted that the case proceeded
to a jury trial, and court then stated that $500 would be appropriate); People v. Castillo, 2016
IL App (2d) 140529, ¶ 1 (court imposed fee after assistant public defender told the court that
the public defender’s office had prepared a motion in defendant’s case); People v. Moore, 2015
IL App (1st) 141451, ¶ 30 (State reminded court of its motion for reimbursement, court asked
defense counsel how many times she had appeared, and court assessed the fee).
¶ 62 Appellate court panels have attached one of two meanings to what is contemplated by
“some sort of a hearing.” Some panels have concluded that a hearing does not occur where a
court in no way addresses a defendant’s ability to pay the public defender fee. See Moore, 2015
IL App (1st) 141451; Castillo, 2016 IL App (2d) 140529, ¶¶ 14-15; People v. Montgomery,
2016 IL App (1st) 140507-U, ¶ 19; People v. Lozada, 2016 IL App (1st) 143143-U, ¶ 12. Other
panels have focused more generally upon the State’s motion to impose a fee and the ordinary
definition of a “hearing.” See Glass, 2017 IL App (1st) 143551, ¶¶ 13, 15; People v. Williams,
2013 IL App (2d) 120094, ¶ 20; People v. Rankin, 2015 IL App (1st) 133409, ¶ 21; People v.
Adams, 2016 IL App (1st) 141135, ¶ 26; People v. Alejo, 2015 IL App (1st) 133508-U, ¶ 29;
People v. Garcia, 2015 IL App (1st) 133502-U, ¶ 10; People v. Turner, 2015 IL App (1st)
140028-U, ¶ 18.
¶ 63 Those panels concluding that “some sort of a hearing” requires some inquiry into the
defendant’s financial circumstances attribute much weight to the fact that, in Somers, this court
observed that the trial court had asked the defendant three questions about his financial
circumstances. 2013 IL 114054, ¶ 15. Specifically, after concluding that the trial court did not
satisfy section 113-3.1(a) but that “some sort of a hearing” had still occurred, this court
observed that the trial court had asked defendant about his ability to obtain a job, whether
defendant would use future income to pay for his fines and costs, and if there was a physical
reason why defendant may not be able to work. Id. As one panel reasoned, if “some sort of a
hearing” means only a hearing in the ordinary or abstract sense, it would have been pointless
for this court to focus on the trial court’s three questions about the defendant’s finances.
Castillo, 2016 IL App (2d) 140529, ¶ 13. For example, “[h]ad the supreme court needed only
to distinguish Gutierrez, i.e., if all that had been required were the trial court’s imposition of
the fee in open court, those questions would have been irrelevant.” Id.
¶ 64 To illuminate what was meant by “some sort of a hearing” in Somers, other panels look to
People v. Johnson, wherein this court defined the term “hearing,” albeit in a different context.
206 Ill. 2d 348, 358 (2002); Glass, 2017 IL App (1st) 143551, ¶ 15; Williams, 2013 IL App
(2d) 120094, ¶ 20. There, this court defined the term “hearing” as it is denoted in Black’s Law
Dictionary. Johnson, 206 Ill. 2d at 358 (a hearing is a “ ‘judicial session usu[ally] open to the
public, held for the purpose of deciding issues of fact or of law, sometimes with witnesses
testifying.’ Black’s Law Dictionary 725 (7th ed. 1999).”). For example, the Williams court
opined that this definition buttresses the Somers court’s statement that a hearing “clearly” took
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place. Williams, 2013 IL App (2d) 120094, ¶ 24. If a hearing “clearly” took place in Somers,
this suggests that a lesser inquiry would suffice to constitute a hearing. Id. ¶ 20.
¶ 65 It is clear that the assessment of the public defender reimbursement fee in Hardman’s case
did not comply with section 113-3.1(a). After the State reminded the court of its motion, the
trial court asked defense counsel how many times she had appeared, noted that the case went to
trial, and then imposed a fee of $500. Among other deficiencies, the trial court did not consider
Hardman’s financial circumstances and did not obtain a financial affidavit. See 725 ILCS
5/113-3.1(a) (West 2012). We need only determine whether “some sort of a hearing” occurred
and, in turn, the proper remedy.
¶ 66 Despite the deficiencies attendant to the trial court’s imposition of the fee, we remand the
cause for a proper hearing because “some sort of a hearing” occurred. Under Somers, “some
sort of a hearing” encompasses a proceeding that meets the ordinary definition of a hearing, as
noted above. In the instant case, the State reminded the court of the motion for reimbursement
at the sentencing hearing. A judicial session occurred, and the issue of whether Hardman
should be assessed a public defender fee was considered. It was only after the trial court asked
the public defender how many times she had appeared that the court assessed the fee. The
parties were present, and the hearing occurred within the 90-day time limit. In Somers, we did
not state that the questions asked by the trial court were determinative of whether a hearing had
occurred. See 2013 IL 114054, ¶ 15.
¶ 67 Although a trial court’s compliance with section 113-3.1(a) would satisfy the definition of
a “hearing,” a trial court’s failure to satisfy section 113-3.1(a) does not automatically mean that
there was “no hearing.” As the Williams court observed, were we to require an inquiry into a
defendant’s finances as a precondition for remand, this would “inevitably require us to
artificially parse out what constitutes an insufficient hearing that is adequate to trigger a
remand ***. For example, would one financial question be enough of an inquiry to allow for a
remand?” 2013 IL App (2d) 120094, ¶ 25. Also, unlike in Gutierrez, the State had clearly
sought imposition of the public defender reimbursement fee before the trial court. Gutierrez,
2012 IL 111590, ¶ 23 (“the statute clearly does not contemplate the State asking for a public
defender fee for the first time when the case is on appeal”).
¶ 68 Hardman contends that, under this reading of Somers, the outcome in People v. Daniels
would have been different. See People v. Daniels, 2015 IL App (2d) 130517. There, the trial
court made no reference to a public defender fee during the sentencing hearing but assessed the
fee in a written order later that day. Id. ¶ 29. The appellate court determined that the fee should
be vacated because it was assessed without a hearing. Id. ¶ 30. We reject Hardman’s argument.
Unlike the instant case, Daniels involved imposition of a fee in the absence of the parties. Id.
¶ 29.
¶ 69 Finally, Hardman argues that, because this court “may provide by rule for procedures for
the enforcement of orders entered under this Section” (725 ILCS 5/113-3.1(d) (West 2012)),
this court should conclude that no case should ever be remanded for the imposition of a public
defender fee where the defendant did not receive a proper hearing the first time. We decline to
address Hardman’s policy argument. Although we have repeatedly expressed our
disappointment that defendants are often deprived of a proper hearing on the issue of a public
defender reimbursement fee, we remain confident that circuit courts will properly comply with
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the statute in the first instance. See Somers, 2013 IL 114054, ¶ 18; Gutierrez, 2012 IL 111590,
¶ 26.
¶ 70 Based on our conclusion that a hearing occurred within the statutory time limit, we need
not address the issue of whether section 113-3.1(a)’s 90-day time limit is mandatory or
directory. See Somers, 2013 IL 114054, ¶ 18. Because we conclude that “some sort of a
hearing” occurred, we hold that the proper remedy in Hardman’s case is to remand for a proper
hearing.
¶ 71 CONCLUSION
¶ 72 To prove that an offense occurred within 1000 feet of a school, for purposes of section
407(b)(1), the State is not required to present particularized evidence that the building is an
active or operational school on the date of the offense. 720 ILCS 570/407(b)(1) (2012). We
find that, based on the testimony presented at trial, a rational trier of fact could have found that
the State had proved that the offense took place within 1000 feet of a school. We affirm
Hardman’s conviction and sentence.
¶ 73 The trial court failed to comply with the requirements of section 113-3.1(a), and therefore
we affirm the appellate court’s vacatur of the public defender fee. Because “some sort of a
hearing” occurred, we hold that the proper remedy is to remand for a proper hearing before a
public defender fee may be imposed. Thus, the appellate court properly remanded for a new
hearing.
¶ 74 Appellate court judgment affirmed; cause remanded.
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