People v. Carter , 2016 IL App (3d) 140196 ( 2016 )

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Appellate Court Date: 2016.11.02
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People v. Carter, 2016 IL App (3d) 140196
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CORNELIUS D. CARTER, Defendant-Appellant.
District & No. Third District
Docket No. 3-14-0196
Filed July 25, 2016
Modified upon
denial of rehearing September 2, 2016
Decision Under Appeal from the Circuit Court of Rock Island County, No. 10-CF-821;
Review the Hon. Walter D. Braud, Judge, presiding.
Judgment Affirmed in part, vacated in part, and remanded with directions.
Counsel on Michael J. Pelletier and Sean Conley, both of State Appellate
Appeal Defender’s Office, of Ottawa, for appellant.
John L. McGehee, State’s Attorney, of Rock Island (Robert M.
Hansen, of State’s Attorneys Appellate Prosecutor’s Office, of
counsel), for the People.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Justice McDade specially concurred, with opinion.
Justice Wright dissented, with opinion.
OPINION
¶1 Defendant, Cornelius D. Carter, argues on appeal that his conviction for aggravated
battery with a firearm should be reversed because the trial court abused its discretion in
allowing the State to present an excessive amount of other-crimes evidence related to an
alleged escape attempt from the county jail. We affirm in part, vacate the DNA analysis fee
and the fines improperly imposed by the circuit clerk, and remand for the trial court to
modify its judgment on fine, fees, and costs in accordance with this order.
¶2 FACTS
¶3 Defendant was charged with aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1)
(West 2010)). In October 2012, while incarcerated in the Federal Bureau of Prisons,
defendant requested a disposition of all pending Illinois charges through the interstate
Agreement on Detainers statute (730 ILCS 5/3-8-9 (West 2012)). The detainer documents
listed another pending Illinois case in addition to the instant case.
¶4 The State filed a motion in limine requesting that the court deem evidence of defendant’s
alleged escape attempt from the county jail in July 2013 to be admissible at defendant’s
aggravated battery trial. Said evidence would include defendant’s audiotaped phone calls
from jail, physical evidence, testimony, and photographs. Defendant objected. Following a
hearing on the State’s motion, the trial court ruled that evidence of defendant’s escape
attempt was admissible. The court advised the State that it wanted “as little [evidence] as
possible” regarding the escape attempt. The court added, “I want the case to be about the
shooting, not about the escape.”
¶5 A jury trial was held. Kameron Angel testified that he had known defendant since he was
10 or 11 years old and they had been close friends. On the evening of August 30, 2010,
Kameron was socializing with his brother, Granvil Angel, defendant, and several other
people. Defendant was wearing a black hooded sweatshirt, dark colored pants, and hospital
gloves. Defendant had been wearing the hospital gloves all day, and Kameron did not think it
was strange. Defendant showed Kameron a handgun that he had in the pocket of his hooded
sweatshirt. Kameron asked if he could purchase the gun, and defendant said Kameron could
purchase it after defendant was done with it. A few minutes later, defendant asked Kameron
to go somewhere with him.
¶6 Kameron walked with defendant to a garage near a store called Jesse Mart. They entered
the garage, and defendant told Kameron there was a gun under a dresser. The garage was
dark so Kameron used his cell phone as a light. Kameron bent down to look for the gun, and
defendant shot him in the back of his neck and his back. Kameron fell to the ground.
Defendant took Kameron’s cell phone and called or texted someone with it. Defendant then
shot Kameron three more times in the back and arm. Kameron lay down and did not move.
¶7 Defendant left the garage. After a minute or two, Kameron got up and jogged to Jesse
Mart. The clerk at Jesse Mart called 911, and several police officers and an ambulance
arrived. Kameron told the officers that defendant shot him. Kameron was taken to the
hospital to be treated. While at the hospital, Kameron picked defendant out of a photographic
lineup as the individual who shot him. Kameron was in the hospital for several days and
continued to have back problems because a bullet was still in his spine.
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¶8 Kameron did not have his cell phone after the shooting. Kameron did not send a text
message to Granvil on the night of the shooting saying that he was going to Kia’s house. Kia
was the mother of Kameron’s son.
¶9 Kameron spoke to Tresvour Robertson in jail approximately a year prior to trial, and
Robertson told Kameron that defendant was paid to kill Kameron. Kameron and Granvil had
obtained a pound of cannabis from Marcus Hampton and Robertson’s cousin, T.J. Everett,
prior to the shooting and decided not to pay for the cannabis.
¶ 10 Kameron acknowledged that he had previously pled guilty to the offense of “going armed
with intent” for throwing a golf club at someone, for which he was on probation.
¶ 11 Granvil testified that he was Kameron’s brother. At approximately 9:30 p.m. on the
evening Kameron was shot, Granvil, Kameron, defendant, and several others were smoking
cannabis together. Defendant asked Granvil to go somewhere with him. Granvil told
defendant he did not feel like walking anywhere. Defendant asked Granvil a second time, and
Granvil again refused. Defendant then asked Kameron, and Kameron agreed. Defendant and
Kameron began walking toward Jesse Mart. Defendant was wearing black clothing and latex
gloves.
¶ 12 At approximately 10:15 p.m., the police came to the house where Granvil and his friends
were smoking. The police banged on the door and said someone had been shot. Granvil left
and started walking because he had a “really bad feeling in the gut of [his] stomach.” While
he was walking, Granvil received a text message from his father stating that Kameron had
been shot. Around that time, Granvil also received a “weird text message” from Kameron’s
cell phone which said that Kameron was with Kia. Granvil could not remember if he received
the text message from Kameron’s phone before or after the text message from his father.
Granvil later talked to Kia and learned that she had not spoken with or seen Kameron that
night. Kameron later told Granvil that he did not send that text message.
¶ 13 After he received the text message from his father, Granvil saw a car driving down an
alley and motioned for the car to stop. Granvil recognized the driver as Arletha Farmer and
asked for a ride to the hospital. Granvil then noticed that defendant was in the backseat.
Farmer agreed to give Granvil a ride, and Granvil got in the backseat with defendant. Granvil
repeatedly asked defendant what happened to Kameron. Defendant said, “I don’t know, I just
ran.” Defendant was sweating profusely and smoking cigarettes. Defendant twice asked
Farmer to pull over so he could get out, but she did not pull over. Defendant was wearing
different clothes than he had worn earlier in the evening. Specifically, defendant was wearing
blue jeans and a white muscle shirt. When the car arrived at the hospital and Granvil got out,
the car sped off.
¶ 14 Granvil testified that approximately one week before the shooting, Granvil and Kameron
obtained one pound of cannabis, which was worth approximately $1000, from Everett,
Robertson, and Hampton. Kameron and Granvil later discovered that the cannabis was bad
and refused to pay for it. Everett, Hampton, and Robertson called Granvil a few days later
after he refused to pay for the cannabis and told Granvil that they were going to kill him and
Kameron. They said that the “hit [was] going to be so close that [he was] not going to see it
coming.”
¶ 15 Farmer testified that she had known defendant for about five years. On the evening of the
shooting, Farmer was driving around with a friend. At approximately 10:30 or 11 p.m.,
Farmer saw defendant walking down the street and gave him a ride. A few minutes later,
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Farmer saw Granvil. Farmer did not know Granvil, but she knew of him. Granvil asked for a
ride to the hospital, and Farmer drove him to the hospital. Farmer heard defendant and
Granvil greet each other when Granvil got into the car, but they did not talk much during the
ride. Farmer dropped Granvil off at the hospital and drove away. Farmer did not recall telling
a police officer that defendant told her someone had been shot when she picked him up.
¶ 16 Police Officer Greg Whitcomb testified that when he interviewed Farmer the day after
the shooting, Farmer said that when she picked defendant up, he told her there had been a
shooting.
¶ 17 Police officers who investigated the shooting testified that when they responded to the
911 call, Kameron told them defendant shot him in an abandoned garage. The officers
observed bullet wounds on Kameron’s neck and left arm. An officer later located the garage
and found a pool of blood and what appeared to be bullets. Whitcomb testified that he
showed Kameron a photographic lineup, and Kameron identified defendant as his shooter.
¶ 18 Robertson testified that he knew Everett and Hampton. Kameron and Granvil obtained
approximately one pound of cannabis from Everett, who had received the cannabis from
Robertson. Kameron and Granvil did not pay for the cannabis. Prior to the shooting,
Robertson saw Everett speaking with defendant in a car parked in Robertson’s backyard.
After Everett spoke to defendant, Everett told Robertson that defendant was going to “get
Kameron.” After the shooting, defendant asked Robertson to tell Everett to pay defendant.
Robertson stated that he did not hire defendant to kill Kameron. Robertson believed the
marijuana Kameron and Granvil took was worth approximately $800 and was not worth
killing someone over. Robertson was currently incarcerated for the offense of intimidation
with a dangerous weapon, which was unrelated to the instant case. The State agreed not to
prosecute Robertson for hiring defendant to shoot Kameron if Robertson testified against
defendant.
¶ 19 The remaining evidence, which concerned defendant’s attempted escape from the county
jail, was admitted over defendant’s objection. Edward Schliltz, a correctional officer,
testified that while working at the county jail on July 23, 2013, he smelled smoke near the
inmates’ cells. Schliltz and other officers thoroughly searched the inmates, the cells, and the
day rooms. One officer found a hacksaw handle, cell phone, cell phone charger, and a mop
handle with several pieces of a torn T-shirt wrapped around it in a garbage can in one of the
day rooms. Defendant had the same T-shirt material that was found in the garbage can
wrapped around his hand. The officers also found a hollowed-out Bible containing a socket
cover in one of the common areas. In defendant’s cell, the officers discovered a four-inch
square hole in the window, which was covered with a piece of plastic. The window’s steel
frame and beam had been cut through with a hacksaw. No other inmate shared a cell with
defendant. Schliltz believed that the officers found a piece of paper in defendant’s cell that
contained several phone numbers that were found in the cell phone retrieved from the day
room. A different inmate claimed that the cell phone the officers found belonged to him.
¶ 20 Jason Patterson, a sheriff’s department employee, testified that he investigated a hole in
the window of defendant’s cell on July 23, 2013. Defendant had occupied the cell since
December 28, 2012. No one else occupied the cell at the time the hole was found. Sixteen
photographs were admitted into evidence. Patterson identified and described the photographs,
which depicted defendant’s cell, including the hole in the window and the cut marks on the
window’s metal bar, the day room at the county jail, and items of contraband found by the
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officers. Patterson found hacksaw blades in defendant’s toilet and strips of fabric in
defendant’s cell. The contraband items found in the common areas included a cell phone and
charger, a hollowed-out book containing a socket plate with burnt edges, strips of a T-shirt
that were tied together, and fabricated paper rods. Some of the pictures showed defendant’s
cell window from outside the building. Electrical tape and a light socket were found on the
roof underneath defendant’s cell window.
¶ 21 The parties stipulated that a sheriff’s department employee would testify that he provided
investigator Mindy Meyers with a compact disc (CD) that included recordings of 14
telephone and visitation conversations of defendant between June 1 and July 27, 2013. The
CD was admitted into evidence but not played for the jury. Whitcomb was recalled as a
witness and testified that he listened to all the recorded conversations contained on the CD.
Whitcomb was familiar with defendant’s voice and reported that all the recordings contained
defendant’s voice except two or three conversations.
¶ 22 Mindy Meyers, an investigator employed by the sheriff’s department, testified that she
was assigned to listen to defendant’s recorded telephone and visitation conversations. Meyers
briefly described 12 recorded conversations of defendant, which were contained on the CD
previously offered into evidence but not played for the jury. In one conversation with an
unknown man, defendant asked the man to give someone named DeShawn “a little bit of
bread” because DeShawn was “getting things” for defendant. Most of the other conversations
that Meyers described involved defendant asking various people to obtain a cell phone for
him, buy minutes for his cell phone, call him, or bring him things.
¶ 23 The State also introduced a different CD containing a recording of a visitation
conversation between defendant and Shakera Abbey. Meyers testified that, based on her
investigation, she believed Abbey was defendant’s girlfriend. The CD was played for the
jury, and a transcript of the conversation was introduced into evidence.
¶ 24 During defendant’s conversation with Abbey, defendant told Abbey he would probably
not be there next month. Abbey responded, “You trying to pull it off this month?” Defendant
replied, “I just… there’s a chance that I might not be here next month.” Abbey told defendant
not to do anything he would regret. Defendant replied that he was going to trial. He then
stated, “See, hopefully I won’t make it to trial *** so I’m hoping, but I’m supposed to go to
trial, you know, if I loose [sic] my trial…shhhh…man, I’m trying to breaking [sic] me out or
something. *** I am gonna win in my own way man. Somehow someway [sic] man.”
Defendant told Abbey that she would see him soon under “certain circumstances.” Abbey
told defendant to call her. Defendant replied, “I’m for real man.” Abbey responded, “I know,
you probably tired of being in here.” Defendant then said, “We’re going off in the sunset
together.”
¶ 25 Defendant asked Abbey to get a pen and directed her to draw a picture. Defendant asked
Abbey if she remembered what he told someone named “Deshar” to get for him, and Abbey
replied that she remembered. Defendant told Abbey to call Deshar and ask if he was going to
get it. Defendant asked Abbey to get it for him herself if she could not reach Deshar.
Defendant said that he needed it before Wednesday. Defendant said that Abbey would be
able to get the items at Walmart, Menards, K&K, True Value, or any hardware store.
Defendant told Abbey that she had to be careful because the items would be sharp. Defendant
then added: “[Y]ou just got to make sure, hell, that no matter what kind you get that you got
the kind that go through handcuffs alright?”
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¶ 26 Meyers testified that she also took pictures of the outside of the jail in connection with
the investigation into the contraband found in defendant’s cell. She took a photograph of
black electrical tape, which was found on the ground outside the jail. The photograph had
previously been introduced into evidence during Patterson’s testimony. Finally, Meyers
testified that when the inmates were in their jail cells, no one was able to come in or out of
the cell without a correctional officer opening the door. The inmates leave their cells during
the day and stay in the day room. The cell doors are locked, and no inmates are able to access
their own cells or other inmates’ cells during that time.
¶ 27 The State rested. Defendant did not present any evidence. During its initial closing
argument, the State did not mention the escape evidence. Defense counsel argued that
defendant was only using the hole in his jail cell window to smuggle in cigarettes and a cell
phone and was not attempting to escape. During its rebuttal argument, the State contended
that defendant was using the hacksaws to cut through his window in an attempt to escape.
¶ 28 During deliberations, the jury requested a copy of the transcript of defendant’s
conversation with Abbey. The jury found defendant guilty. On January 17, 2014, the trial
court sentenced defendant to 30 years’ imprisonment to be served consecutively with his
sentence in his federal case. On January 24, 2014, the trial court entered a written judgment
order, which required defendant to pay “the costs of prosecution.” The written order provided
that these costs were reduced to judgment against defendant. On January 27, 2014, the circuit
clerk entered a judgment against defendant in favor of the State in the amount of $597.
¶ 29 A cost sheet titled “Payment Status Information” and dated April 22, 2014, appears in the
record. The following assessments along with the following descriptions appear on the cost
sheet: (1) $100 “Clerk,” (2) $50 “State’s Atty,” (3) $50 “Court,” (4) $15 “Automation,” (5)
$25 “Violent Crime,” (6) $25 “Judicial Security,” (7) $15 “Document Storage,” (8) $10
“Medical Costs,” (9) $250 “DNA Identification,” (10) $5 “Youth Diversion,” (11) $0.25
“Clerk Op Deduction,” (12) $4.75 “Drug Court,” (13) $10 “Clerk Op Add-Ons,” (14) $10
“State Police Svcs,” (15) $15 “State Police Ops,” (16) $2 “SA Automation Fee,” and (17)
$10 “Probation Ops Fee.”
¶ 30 ANALYSIS
¶ 31 I. Other-Crimes Evidence of Attempted Escape
¶ 32 Defendant argues that the trial court erred in allowing an excessive amount of
other-crimes evidence regarding defendant’s attempted escape from the county jail such that
the trial court conducted a trial within a trial on defendant’s escape attempt.
¶ 33 It is a longstanding proposition of Illinois law that evidence of the crime of attempted
escape and the related crime of flight is admissible for the purpose of showing a defendant’s
consciousness of guilt. Jamison v. People, 145 Ill. 357, 376 (1893) (attempted escape);
People v. Duncan, 261 Ill. 339, 352-53 (1913) (suicide attempt as attempted escape); People
v. Bundy, 295 Ill. 322, 329-30 (1920) (flight); People v. Limeberry, 298 Ill. 355, 370 (1921)
(attempted flight); People v. Spaulding, 309 Ill. 292, 306 (1923); People v. Talbe, 321 Ill. 80,
91 (1926) (attempted escape); People v. Rappaport, 362 Ill. 462, 468 (1936) (flight); People
v. Gambino, 12 Ill. 2d 29, 32 (1957) (escape and attempted escape); People v. Harper, 36 Ill.
2d 398, 403-04 (1967) (attempted escape); People v. Yonder, 44 Ill. 2d 376, 392 (1969) (two
hacksaw blades hidden in the defendant’s shoe were evidence of attempted escape); People v.
Gaines, 88 Ill. 2d 342, 366 (1981) (escape); People v. Gacho, 122 Ill. 2d 221, 246 (1988)
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(letter indicating that defendant wanted to escape admissible as evidence of consciousness of
guilt).
¶ 34 Other-crimes evidence is admissible only if the probative value of the evidence is not
outweighed by its prejudicial effect. People v. Adkins, 239 Ill. 2d 1, 23 (2010); Ill. R. Evid.
403 (eff. Jan. 1, 2011) (“Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”). A trial court’s decision to admit other-crimes
evidence will not be overturned absent a clear abuse of discretion. Adkins, 239 Ill. 2d at 23.
Even if relevant, other-crimes evidence should not become a focal point of the trial. People v.
Boyd, 366 Ill. App. 3d 84, 94 (2006). “Courts have warned against the dangers of putting on
a ‘trial within a trial,’ with detail and repetition greatly exceeding what is necessary to
establish the particular purpose for the evidence.” Id. (quoting People v. Bartall, 98 Ill. 2d
294, 315 (1983)).
¶ 35 We find that the trial court did not abuse its discretion in allowing the State’s evidence
regarding defendant’s escape attempt. First, the escape evidence had high probative value in
that it showed defendant’s consciousness of guilt. We find the evidence offered by the State
was reasonably necessary to show defendant’s escape attempt. Defendant’s recorded
conversation with Abbey was needed to show that defendant intended to escape from jail.
During the conversation, defendant told Abbey, “I’m trying to breaking [sic] me out or
something.” He also directed Abbey to obtain an item from a hardware store for him that
could cut through handcuffs. Defendant’s conversation with Abbey showed that the items of
contraband that were subsequently connected to him were related to an escape attempt rather
than a smuggling operation, as defense counsel argued at trial.
¶ 36 Evidence of the discovery of hacksaw blades in defendant’s toilet and other items of
contraband linked to defendant showed that the escape plan defendant discussed with Abbey
went beyond mere fantasy and that defendant was actually in the process of executing the
plan. The additional recordings of defendant’s telephone and visitation conversations in
which he sought cell phones and other items helped link him to the items of contraband that
were ultimately found.
¶ 37 We reject defendant’s contention that the probative value of the attempted escape
evidence in the instant case was low because it is unlikely that defendant would have been
able to cut a sufficiently large hole in his window to actually escape. We note Illinois courts
have admitted evidence of possession for the means of escape or the intent to escape to show
consciousness of guilt even when no actual escape was attempted. See Yonder, 44 Ill. 2d at
392 (hacksaw blades hidden in the defendant’s shoe); Gacho, 122 Ill. 2d at 245-46 (letter
defendant sent from jail stating that he believed he could escape).
¶ 38 Similarly, we find no merit to defendant’s contention that the probative value of the
escape evidence was somehow lessened due to the fact that he was serving a federal sentence
and was facing charges in another Illinois case. Evidence of attempted escape is admissible
even when a defendant is incarcerated on multiple charges. See In re L.F., 119 Ill. App. 3d
406, 409 (1983); People v. Day, 76 Ill. App. 3d 571, 585 (1979). As defendant presented no
evidence either at the hearing on the State’s motion in limine or at trial that his escape
attempt was related to anything other than the instant case, for which he was awaiting trial at
the time of the escape attempt, we decline to find that the probative value of the escape
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attempt was lessened due to defendant’s other charges. See People v. Ligon, 15 Ill. App. 3d
746, 751 (1973).
¶ 39 In addition to finding that probative value of the attempted escape evidence was high, we
find that the prejudicial impact of the escape evidence was low. That is, evidence that
defendant wished to escape from jail and acquired various items of contraband including
hacksaw blades to do so was unlikely to inflame the passions of the jury. This is especially
true when compared with the strong evidence of the relatively more heinous offense of
attempted murder. Kameron testified that defendant, who had been his friend since
childhood, shot him multiple times in an abandoned garage. The testimony of police officers
confirmed that Kameron adamantly claimed that defendant was his shooter immediately after
the shooting. Kameron’s, Granvil’s, and Robertson’s testimony tended to establish
defendant’s motive for shooting Kameron—namely, that he had been paid to do it.
¶ 40 Thus, due to the high probative value and low prejudicial impact of the attempted escape,
we find that the trial court did not abuse its discretion in allowing the evidence of defendant’s
escape attempt. The amount of escape evidence presented did not greatly exceed what was
necessary to establish the escape attempt such that a trial within a trial occurred. See Boyd,
366 Ill. App. 3d at 94.
¶ 41 In coming to this conclusion, we reject defendant’s reliance on People v. Nunley, 271 Ill.
App. 3d 427 (1995), People v. Bedoya, 325 Ill. App. 3d 926 (2001), People v. Richee, 355 Ill.
App. 3d 43 (2005), and People v. Thigpen, 306 Ill. App. 3d 29 (1999), in support of his
argument that his conviction should be reversed because the admitted evidence of his escape
attempt was too extensive. Initially, we note that none of those cases involved other-crimes
evidence of escape or other-crimes evidence showing consciousness of guilt. Nunley, 271 Ill.
App. 3d at 432 (other-crimes evidence admitted to show the “continuing narrative” of the
defendant’s arrest and confession); Bedoya, 325 Ill. App. 3d at 939-40 (intent); Richee, 355
Ill. App. 3d at 58-59 (modus operandi); Thigpen, 306 Ill. App. 3d at 36 (common plan or
scheme). Additionally, all four of defendant’s cited cases, unlike the instant case, either
found the other-crimes evidence to lack probative value or be unduly prejudicial.
¶ 42 In Bedoya and Richee, the courts first found that the other-crimes evidence at issue was
irrelevant to the purpose for which it was admitted and should not have been admitted at all.
Bedoya, 325 Ill. App. 3d at 939-40; Richee, 355 Ill. App. 3d at 58-59. Both cases found in the
alternative that even assuming the other-crimes evidence was relevant, the probative value of
the evidence was outweighed by its prejudicial impact due to the excessive amount of
evidence presented at trial and its inflammatory nature. Bedoya, 325 Ill. App. 3d at 939-40
(other-crimes evidence that the defendant shot at three buildings, including the residence of a
cardinal); Richee, 355 Ill. App. 3d at 58-59 (other-crimes evidence of multiple burglaries).
¶ 43 Similarly, in Thigpen, a murder case, the trial court found that some other-crimes
evidence that defendant had previously committed a double murder may have been relevant
to show a common plan or scheme. Thigpen, 306 Ill. App. 3d at 37-38. The court held,
however, the detailed evidence of the double murder that was admitted at trial—including the
introduction of a photograph of the victims’ corpses, which was subsequently sent to the jury
room—was not relevant. Id. It was not only the amount of evidence of the double murder that
the court found constituted reversible error, but the inflammatory and prejudicial effect of
detailed evidence of a double murder on the jury. Id. at 38-39.
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¶ 44 In Nunley, extensive other-crimes evidence that the defendant was under arrest for
stabbing his mother and killing her dog at the time he confessed to the robbery and murder
for which he was on trial was admitted to show the “continuing narrative” of the defendant’s
arrest and confession. Nunley, 271 Ill. App. 3d at 432. On review, the Nunley court held that
due to the “extremely inflammatory nature of the prior conduct evidence,” it was an abuse of
discretion to allow other-crimes evidence beyond the fact that defendant was in custody for
the aggravated battery of his mother at the time of his confession. Id.
¶ 45 In the instant case, unlike in Bedoya, Richee, and Thigpen, all the other-crimes evidence
was relevant to the purpose for which it was introduced, that is, to show defendant’s
consciousness of guilt by way of his attempted escape from jail. Unlike in Nunley, Bedoya,
Richee, and Thigpen, the other-crimes evidence in this case—namely, that defendant planned
to escape from jail and possessed contraband items in connection with his attempted
escape—was not particularly inflammatory or unduly prejudicial. Additionally, the evidence
of the escape attempt in the instant case was largely based on inferences drawn from
defendant’s statements, actions, and the surrounding circumstances. Consequently, a greater
amount of evidence was needed to show the escape attempt in this case than in Nunley,
Bedoya, Richee, and Thigpen, where the other-crimes evidence at issue was either completely
irrelevant or could serve its relevant purpose in small amounts.
¶ 46 Lastly, even if we were to accept defendant’s argument that an excessive amount of
evidence was presented regarding the escape attempt, we find that any error in the admission
of the escape evidence was harmless. We acknowledge that the jury requested to view the
transcript of defendant’s conversation with Abbey during deliberations. However, in light of
the overwhelming evidence of defendant’s guilt, we do not believe that the result of the
proceedings would have been different even if no evidence of the escape attempt had been
presented. People v. McKown, 236 Ill. 2d 278, 311 (2010) (“Error will be deemed harmless
and a new trial unnecessary when ‘the competent evidence in the record establishes the
defendant’s guilt beyond a reasonable doubt and it can be concluded that retrial without the
erroneous admission of the challenged evidence would produce no different result.’ ”
(quoting People v. Arman, 131 Ill. 2d 115, 124 (1989))). Additionally, we are mindful of the
decisions in People v. McKibbins, 96 Ill. 2d 176, 186-87 (1983), and Bartall, 98 Ill. 2d at 315,
where the court held that no prejudicial error occurred where an excessive amount of relevant
other-crimes evidence was admitted at trial.
¶ 47 II. Fines and Fees
¶ 48 Defendant argued in his appellate brief that this matter should be remanded to the trial
court for entry of a proper order of fines and fees because the circuit clerk improperly
assessed fines against defendant after it was too late to challenge them. The State conceded
that the matter should be remanded for the trial court to address the issues defendant raised
regarding the fines and costs assessed against him. However, after the filing of the
appellant’s brief in this case, our supreme court issued its opinion in People v. Castleberry,
2015 IL 116916. Defendant now contends that Castleberry abrogated the procedure of
remanding cases for the proper imposition of fines and fees. For the reasons that follow, we
agree.
¶ 49 Prior to Castleberry, the appellate court could correct an illegally low sentence to
conform with minimum statutory requirements without running afoul of Illinois Supreme
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Court Rule 615(b)(4), pursuant to the void sentence rule—i.e., the rule that a sentence that
does not conform to statutory requirements is void. People v. Arna, 168 Ill. 2d 107, 113
(1995), abrogated by Castleberry, 2015 IL 116916. In Castleberry, however, the supreme
court abolished the void sentence rule. Castleberry, 2015 IL 116916, ¶ 19.
¶ 50 Castleberry’s holding applies to the instant case, as it was pending on appeal when
Castleberry was decided. See People v. Granados, 172 Ill. 2d 358, 365 (1996) (“As a general
rule *** this court’s decisions apply to all cases that are pending when the decision is
announced, unless this court directs otherwise.”); see also Griffith v. Kentucky, 479 U.S. 314,
328 (1987) (“We therefore hold that a new rule for the conduct of criminal prosecutions is to
be applied retroactively to all cases, state or federal, pending on direct review or not yet final
***.”).
¶ 51 After Castleberry, we may no longer remand a cause to the trial court for the imposition
of an increased sentence, even if the sentence given by the trial court is illegally low. See
Castleberry, 2015 IL 116916, ¶¶ 20-26 (holding that the appellate court was without
authority to add a 15-year firearm enhancement to the defendant’s sentence pursuant to
Illinois Supreme Court Rule 615(b)(4) even though the sentence was illegally low without
the enhancement). Fines are part of a criminal sentence. People v. Graves, 235 Ill. 2d 244,
250 (2009). Therefore, we will merely vacate improperly imposed fines rather than
remanding for the reimposition of such fines. We now turn to the question of whether any
fines were improperly imposed in this case.
¶ 52 “Because the imposition of a fine is a judicial act, and the circuit clerk has no authority to
levy fines, any fines imposed by the circuit clerk are void from their inception.” People v.
Larue, 2014 IL App (4th) 120595, ¶ 56. We find that the following fines were imposed by
the circuit clerk and are therefore void: (1) the $50 court fund fee (People v. Smith, 2013 IL
App (2d) 120691, ¶ 21); (2) the $5 youth diversion fee (Graves, 235 Ill. 2d at 255); (3) the
$4.75 drug court fee and the $0.25 “Clerk Op Deduction” (People v. Johnson, 2015 IL App
(3d) 140364, ¶ 9); (4) the $15 State Police Operations Assistance Fund fee (People v.
Millsap, 2012 IL App (4th) 110668, ¶ 31); (5) the $25 Violent Crime Victims Assistance
Fund fine (People v. Dillard, 2014 IL App (3d) 121020, ¶ 11); and (6) the $10 medical costs
fine (Johnson, 2015 IL App (3d) 140364, ¶ 9). Accordingly, we vacate the foregoing fines.
¶ 53 We also find that a $30 juvenile records expungement fine was improperly imposed in
this case. Section 5-9-1.17 of the Unified Code of Corrections (730 ILCS 5/5-9-1.17 (West
2012)) provides:
“(a) There shall be added to every penalty imposed in sentencing for a criminal
offense an additional fine of $30 to be imposed upon a plea of guilty or finding of
guilty resulting in a judgment of conviction.
(b) Ten dollars of each such additional fine shall be remitted to the State Treasurer
for deposit into the State Police Services Fund to be used to implement the
expungement of juvenile records as provided in Section 5-622 of the Juvenile Court
Act of 1987, $10 shall be paid to the State’s Attorney’s Office that prosecuted the
criminal offense, and $10 shall be retained by the Circuit Clerk for administrative
costs associated with the expungement of juvenile records and shall be deposited into
the Circuit Court Clerk Operation and Administrative Fund.”
¶ 54 This assessment is a fine, as it is punitive in nature. People v. Wynn, 2013 IL App (2d)
120575, ¶ 16. Because the fine was imposed without authority by the circuit clerk in this
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case, it is void. See Larue, 2014 IL App (4th) 120595, ¶ 56. In the instant case, this $30 fine
appears in three places on the clerk’s cost sheet: (1) the $10 State Police Services Fund
assessment, (2) the $10 “Clerk Op Add-Ons” assessment, and (3) as a portion of the $50
State’s Attorney fee. Accordingly, we vacate the $10 State Police Services Fund assessment,
the $10 “Clerk Op Add-Ons” assessment, and $10 of the $50 State’s Attorney fee, thereby
reducing the State’s Attorney fee to $40.
¶ 55 Defendant also argues that the probation operations assistance fee is a fine because it
does not compensate the State or county for the costs of prosecuting a particular defendant
but rather is a flat amount imposed upon conviction regardless of the amount of probation
services used by defendant. Defendant further argues that the imposition of the probation
operations assistance fee violates ex post facto principles because its effective date was
subsequent to the date of the offense. Section 27.3a(1.1) of the Clerks of Courts Act (705
ILCS 105/27.3a(1.1) (West 2012)), which establishes the probation operations assistance fee,
states as follows:
“Starting on July 6, 2012 (the effective date of Public Act 97-761) and pursuant to an
administrative order from the chief judge of the circuit or the presiding judge of the
county authorizing such collection, a clerk of the circuit court in any county that
imposes a fee pursuant to subsection 1 of this Section shall also charge and collect an
additional $10 operations fee for probation and court services department operations.
This additional fee shall be paid by the defendant in any felony, traffic,
misdemeanor, local ordinance, or conservation case upon a judgment of guilty or
grant of supervision, except such $10 operations fee shall not be charged and
collected in cases governed by Supreme Court Rule 529 in which the bail amount is
$120 or less.”
¶ 56 We determine that this assessment is overall a fine. “Broadly speaking, a ‘fine’ is a part
of the punishment for a conviction, whereas a ‘fee’ or ‘cost’ seeks to recoup expenses
incurred by the state—to ‘compensat[e]’ the state for some expenditure incurred in
prosecuting the defendant.” People v. Jones, 223 Ill. 2d 569, 582 (2006). “[T]he most
important factor [in determining whether a charge is a fine or fee] is whether the charge seeks
to compensate the state for any costs incurred as the result of prosecuting the defendant.”
Graves, 235 Ill. 2d at 250. “Other factors to consider are whether the charge is only imposed
after conviction and to whom the payment is made.” Id. at 251. The probation operations
assistance fee is assessed against all criminal defendants “upon a judgment of guilty or grant
of supervision” regardless of whether probation services were actually utilized in each
defendant’s case. 705 ILCS 105/27.3a(1.1) (West 2012). As such, we conclude the probation
operations assistance assessment qualifies as a fine, created to generate a fund to support
probation and court services, regardless of a defendant’s actual utilization of those services.
¶ 57 In reaching our conclusion, we recognize that our approach is contrary to the holding of
People v. Rogers, 2014 IL App (4th) 121088, ¶ 37. In Rogers, the court held that a probation
operations assistance assessment was compensatory in nature—and, consequently, a fee
rather than a fine—because the defendant received a sentence of probation and the probation
office prepared a presentence investigation report. Id. The Rogers court found, however, that
the probation operations assistance fee would be a fine in cases where the probation office
was not involved in a defendant’s prosecution. Id. ¶ 38. We decline to follow Rogers.
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¶ 58 Having found the probation operations assistance fee to be a fine, we find that it is void
because it was improperly assessed by the circuit clerk. Larue, 2014 IL App (4th) 120595,
¶ 56. Additionally, the imposition of the fine violates ex post facto principles because the date
of the offense—August 30, 2010—was prior to the effective date of the legislation that
created the fine—July 6, 2012. Pub. Act 97-761 (eff. July 6, 2012) (adding 705 ILCS
105/27.3a(1.1) (West 2012)). See People v. Prince, 371 Ill. App. 3d 878, 880 (2007) (“A fine
*** is a pecuniary punishment imposed as a part of a criminal sentence and is subject to the
prohibition against ex post facto laws.”).
¶ 59 Defendant argues that the $250 DNA analysis fee imposed by the circuit clerk was
improper because he previously provided a DNA sample as a result of a prior conviction.
“[S]ection 5-4-3 [of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West 2008))]
authorizes a trial court to order the taking, analysis, and indexing of a qualifying offender’s
DNA, and the payment of the analysis fee only where that defendant is not currently
registered in the DNA database.” People v. Marshall, 242 Ill. 2d 285, 303 (2011). At
defendant’s request, we take judicial notice of a document from the Illinois State Police
Division of Forensic Services showing that he had previously submitted a DNA specimen,
which defendant included in the appendix to his appellate brief. See People v. Garrett, 62 Ill.
2d 151, 163 (1975) (holding that the appellate court may take judicial notice of the contents
of public records). Accordingly, we vacate the $250 DNA fee assessed in this case, as
defendant has already submitted a DNA specimen. See Marshall, 242 Ill. 2d at 303.
¶ 60 We find that the remaining assessments, which total $197, were fees properly imposed by
the circuit clerk: (1) the $100 clerk fee (705 ILCS 105/27.1a(w)(1)(A) (West 2012)); (2) the
$30 State’s Attorney fee and $10 preliminary hearing fee, for a total of $40 (55 ILCS
5/4-2002(a) (West 2012)); (3) the $15 automation fee (705 ILCS 105/27.3a(1) (West 2012));
(4) the $25 judicial security fee (55 ILCS 5/5-1103 (West 2012)); (5) the $15 document
storage fee (705 ILCS 105/27.3c(a) (West 2012)); and (6) the $2 State’s Attorney automation
fee (55 ILCS 5/4-2002(a) (West 2012)).
¶ 61 CONCLUSION
¶ 62 We affirm the judgment of the circuit court of Rock Island County in part, vacate in part
as to the fines imposed by the circuit clerk and the $250 DNA analysis fee, and remand for
the trial court to enter a modified judgment on fines, fees, and costs in accordance with this
order.
¶ 63 Affirmed in part, vacated in part, and remanded with directions.
¶ 64 JUSTICE McDADE, specially concurring.
¶ 65 I agree with Justice Carter that existing Illinois law requires a holding that the circuit
court did not err when it admitted the other-crimes evidence regarding the defendant’s
activities while in the Rock Island county jail. I also agree with Justice Carter that those
assessments properly characterized as fines and the $250 DNA fee should be vacated for the
reasons stated and that the other fees were properly imposed. I write separately to express my
strong disagreement with the propriety of using the concept of consciousness of guilt in the
context of incarceration.
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¶ 66 I recognize that the supreme court has consistently demonstrated its belief in the concept,
but I believe that evidence related to an escape or an attempted escape from incarceration
should not be admissible at a defendant’s trial as evidence of consciousness of guilt for
multiple reasons. As a general premise, I find consciousness of guilt to be a flawed concept
in any context because it runs afoul of the foundational principle of our jurisprudence that a
criminal defendant is presumed innocent until proven guilty. More specifically, to be used as
consciousness of guilt of the charged offense, evidence that one has escaped or attempted to
escape from incarceration invites—indeed, requires—the fact-finder to presume that the
individual is guilty of that underlying crime.
¶ 67 The consciousness-of-guilt concept also offends logic in that its operation is circular. In
the instant case, for example, in order to serve as proof of the defendant’s guilt of the charged
crime, the concept requires the fact-finder to presume his unproven guilt and find that his
conduct at the jail—arguably an attempt to escape—was solely motivated by his awareness
of that guilt. This is a logical fallacy.
¶ 68 But I am certainly not alone in questioning the validity of the concept and its use in the
courts. While consciousness of guilt has long been accepted as admissible evidence, the
problematic nature of the concept has also long been recognized. See, e.g., Robert M.
Hutchins & Donald Slesinger, Some Observations of the Law of Evidence—Consciousness of
Guilt, 77 U. Pa. L. Rev. 725 (1929) (critiquing consciousness of guilt for being scientifically
unverifiable and citing, inter alia, John Henry Wigmore’s treatise on evidence and his book,
The Principles of Judicial Proof (1913)). Context is extremely important when
consciousness-of-guilt evidence is proffered:
“ ‘The same symptom is often the result of exactly opposite psychological
conditions. This sort of evidence is admitted because there is a certain degree of
uniformity in its meaning, but the variations from uniformity are so frequent, and
depend so much upon personal character and local circumstances that no fixed rules
should be laid down. Repeated judicial warnings tell us that the evidence is merely to
be estimated as best we can in the light of our knowledge of human nature in general
and of the accused in particular. … The general principle, as applied to the conduct of
one accused of crime, finds illustration in a great variety of instances. In those which
have led to judicial rulings, there has seldom resulted an exclusion, because usually
none but conduct having at least plausibly a guilty significance is commonly
offered.’ ” Id. at 728-29 (quoting John Henry Wigmore, A Treatise on the
Anglo-American System of Evidence in Trials at Common Law § 273 (2d ed. 1923)).
Additionally, it was noted as early as 1846 that the flight of an accused:
“is not necessarily an admission of guilt; it may proceed from an unwillingness to
stand a public prosecution, or from a fear of the result, from an inability to explain
certain false appearances, indicating guilt, though the party was innocent. The conduct
of one accused of crime, is the most fallible of all competent testimony. Those emotions
or acts which might be produced in one person by a sense of guilt, or by the stings of
conscience, might be exhibited by another, differently constituted, by an
overwhelming sense of shame, and the degradation consequent upon a criminal
accusation. The same cause producing opposite effects in different persons, owing to
weakness or strength of nerve, and other inexplicable moral phenomena.” (Emphasis
added.) Smith v. State, 9 Ala. 990, 995 (1846).
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Even if one (like Wigmore) is not troubled by the inability to scientifically verify
consciousness of guilt, notable objections to its use in the courts include that “its
manifestations are equivocal; [citation] it may be caused by guilt of another crime than the
one charged; [citation] or it may be caused by other emotional disturbances [citation].”
Hutchins & Slesinger, supra, at 734.
¶ 69 Particular to the prison context, I find such evidence problematic because there are a
multitude of reasons why an individual may attempt to escape from incarceration that are
wholly unrelated to whether he or she committed the charged offense. In this regard, I note
Justice Seymour Simon’s dissent in People v. Gacho, 122 Ill. 2d 221 (1988). In Gacho, a
defendant had been arrested and incarcerated based on his suspected involvement in the
murders of two people. Id. at 231. While incarcerated, he wrote a letter to his girlfriend that
included the statement, “ ‘I still believe I can escape from here one way or the other.’ ” Id. at
245. The supreme court held that the statement from the letter was admissible at trial as
consciousness-of-guilt evidence. Id. at 246. Justice Simon dissented, in part due to the fact
that the two cases cited by the majority (People v. Gaines, 88 Ill. 2d 342 (1988) and People v.
Harper, 36 Ill. 2d 398 (1967)) involved actual escapes or attempts to escape, which was not
the case in Gacho. Id. at 265 (Simon, J., dissenting). Justice Simon then stated:
“Here, the defendant was simply writing about the possibility of leaving prison
sometime in the future. He may have meant that he thought he would be found
innocent and be released or he may have been thinking of escaping because of harsh
conditions in prison. In any case, his statement is not relevant to the issue of whether
he is guilty of murder, and permitting the State to cross-examine the defendant about
the statement was reversible error.” Id.
¶ 70 I recognize that case law states that whether an escape or an attempted escape was
motivated by consciousness of guilt or by some other reason is a question for the fact-finder
to decide. See, e.g., People v. Sheridan, 51 Ill. App. 3d 963, 967 (1977). However, as I stated
above, considering, even as a broader inquiry, whether evidence of an actual or attempted
escape shows consciousness of guilt requires the fact-finder to presume that the defendant is
guilty of the underlying offense. Moreover, it is also dangerous to allow the evidence because
of the likelihood of it being used as evidence of a defendant’s general bad character, rather
than evidence of his or her consciousness of guilt for the charged offense.
¶ 71 The problematic nature of such evidence is exacerbated in a case like the one before us.
Here, whether the defendant’s actions even constituted an escape attempt were particularly
suspect. First, at the time the defendant was transferred to the Rock Island County jail to face
the charges in this case, he had been incarcerated on a federal charge. He was also facing
other state criminal charges. Any purported plan to escape could have been an attempt to
evade any or all of those charges and not the instant aggravated battery with a firearm charge.
Second, it is not at all clear that the defendant was even planning an escape. His
actions—including his recorded statements—could as easily have been the implementation of
an operation to smuggle drugs into the jail as an attempt by the defendant to escape from it.
¶ 72 Unfortunately, despite long-standing doubts of legal scholars and judges about the
general validity of the concept of consciousness of guilt and, more specifically about the
reliability of its application in the context of actual or attempted escapes from incarceration, I
am compelled to concur with the decision to affirm the defendant’s conviction.
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¶ 73 JUSTICE WRIGHT, dissenting.
¶ 74 I respectfully dissent on the issue of the admissibility of the other-crimes evidence in this
case. I would find the excessive other-crimes evidence constitutes reversible error arising out
of a trial within a trial.
¶ 75 I am not persuaded by the case law relied on by the majority. First, many of the cases
cited in the majority decision involve prearrest flight to avoid arrest. I distinguish those cases
on the grounds that this defendant did not attempt to flee in order to avoid arrest. Instead, this
defendant voluntarily requested to be returned to Rock Island County, from federal prison, to
answer to two outstanding Rock Island County warrants.
¶ 76 Next, I also distinguish three of the decisions cited by the majority that are more
analogous to the facts in this appeal because those cases involve a postarrest escape. In the
oldest postarrest case, People v. Talbe, 321 Ill. 80, 86 (1926), defendant was arrested, placed
in the local jail, and then forcefully removed the jailer’s keys before leaving his jail cell
without permission. Similarly, in People v. Gambino, 12 Ill. 2d 29, 32 (1957), defendant was
first arrested, placed in the local jail, and then left the jail itself without permission. I do not
find these two cases to be helpful because this defendant did not physically depart from
either his Rock Island jail cell or the Rock Island County jail, without permission, at any
time.
¶ 77 A third case cited by the majority, People v. Yonder, 44 Ill. 2d 376 (1969), appears to be
on all fours with the facts in the case now before this court. For example, both the facts in the
case at bar and the facts in Yonder involved an inmate who was discovered to be in
possession of hacksaw blades while incarcerated in the jail and awaiting trial.
¶ 78 However, upon closer examination, I submit the holding in Yonder does not provide
persuasive authority in this appeal. Specifically, in Yonder, the defense challenged the
correctness of the trial court’s evidentiary ruling extending the reach of consciousness of
guilt evidence to apply where the correctional officers thwarted the plan to escape before the
inmate began to execute an escape. Id. at 392.
¶ 79 In Yonder, unlike the case at bar, the jury received minimal evidence showing Yonder
possessed hacksaw blades in his shoes while in jail. The evidence linking defendant to the
hacksaw blades paled in comparison to the extensive evidence the jurors received pertaining
to the armed robbery. In that case, the State’s accomplice witnesses and the victims described
for the jury how Yonder woke up the family by attacking the husband as he slept. The armed
robbers, including Yonder, then dragged the other household occupants out of bed; bound
them with tape; gouged out the eyes of the husband causing blindness; forced the wife to
witness her husband’s mutilated face; threatened to cut off the wife’s finger to remove her
ring; announced an intent to have a “sex orgy” with the couple’s 11-year-old son; and
encouraged the others to continue to beat, injure, and burn the women present in the home by
applying cigarettes to their breasts and pubic hairs while “lying naked” on their backs.
Further, the jury learned that the armed robbery yielded $130 in cash, two pairs of pearls, and
a ring.
¶ 80 Not surprisingly, our supreme court engaged in a cursory analysis in Yonder, which
explained that, in that particular case, the possession of hacksaw blades was admissible
evidence showing consciousness of guilt. Here, defendant concedes in his brief on this appeal
that the trial court correctly decided some limited evidence of consciousness of guilt could be
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introduced by the State in their case-in-chief. However, unlike Yonder, defendant agues the
details of the escape plan, which this jury received, became quite excessive and prejudicial.
¶ 81 Here, the State’s theory was that defendant did not simply acquire and possess
contraband while housed in the Rock Island County jail but, rather, acquired the various
items of contraband, not limited to the hacksaw blades, as part of a bigger plan to escape
from the jail. In support of the State’s escape theory, this jury received 16 photographic
exhibits depicting contraband found in common day areas of the jail and other evidence
discovered outside the jail below defendant’s window.
¶ 82 Further, the jury learned about defendant’s 14 recorded telephone calls from the jail
where defendant made incriminating statements about getting cell phone access and other
unspecified contraband to defendant. Finally, the jury heard one recording of a visitation
between defendant and his girlfriend that took place on June 8, 2013. During this
conversation, defendant dramatically advised his girlfriend that he might not be in jail “next
month” and promised they would be “going off in the sunset together.” Yet, it is undisputed
that defendant’s prediction did not come true and he remained in jail the next month. Thus,
the issue of whether defendant actually intended to escape or was expressing simple bravado
on June 8, 2013, created a trial within a trial documented by the jurors’ request to review a
transcript of the conversation on June 8, 2013.
¶ 83 I also distinguish the facts in Yonder from the instant case because, here, the jury did not
learn that this defendant may have been planning his escape to avoid returning to federal
prison to serve the balance of a 10-year sentence. For obvious reasons, defendant could not
counterbalance the excessive other-crimes evidence—about possessing contraband in a penal
institution while hoping to escape—by informing the jury of an equally plausible reason for
his desire not to return to federal prison to complete a 10-year sentence.
¶ 84 Had the State limited the evidence to the items and physical evidence found in
defendant’s cell on July 27, 2013, I could adopt the majority’s harmless error analysis.
However, my views are premised on the excessive amount of evidence the State elected to
introduce, in spite of the court’s warning to minimize the evidence of escape long before the
trial began. I dissent. Finally, with respect to fines and costs, I agree in the majority’s
analysis of the application of Castleberry, 2015 IL 116916, to the case at bar. I also agree
with the majority’s view of the decision in Rogers, 2014 IL App (4th) 121088.
¶ 85 I strongly agree with the majority that Castleberry bars this court’s prior practice of
remanding cases to the trial court with instructions to add the statutorily required fines
originally omitted by the sentencing judge. Yet, I respectfully dissent because I would not
adjust or reduce the amounts included in the clerk’s tally sheet as a “void” component of
defendant’s sentence.
¶ 86 In People v. Castleberry, 2015 IL 116916, ¶ 19, our supreme court wisely abolished the
void sentence rule. In doing so, our supreme court clarified that a void sentence exists only
where the trial court lacked jurisdictional authority to enter an erroneously low (or high)
sentence and judgment against defendant. In this case, the defendant does not assert the trial
court lacked jurisdictional authority to order the payment of costs only for purposes of this
appeal. I contend this court should not correct the circuit clerk’s errors when the trial court
has not been requested to do so. This does not mean defendant is without a remedy in this
case.
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¶ 87 I note that either the State or a defendant may file a writ of mandamus directed to the
circuit clerk. Mandamus is the proper method for any trial court to be instructive to the
circuit clerk. Alternatively, I respectfully suggest either party could present an agreed bench
order for the trial court to sign, which clarifies those amounts recognized by existing case law
as true court “costs.” Either approach would result in a reduction of costs for purposes of the
clerk’s records.
¶ 88 For these reasons, I would affirm the defendant’s sentence including court “costs” and
encourage the parties to initiate any request to correct the clerk’s tally sheet in the trial court.
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