People v. Jophlin ( 2018 )

2018 IL App (4th) 150802
NO. 4-15-0802
FILED
March 20, 2018
Carla Bender
IN THE APPELLATE COURT th
4 District Appellate
Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
JOSEPH M. JOPHLIN, ) No. 14CF850
Defendant-Appellant. )
) Honorable
) Thomas E. Griffith Jr.,
) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court, with opinion
Justices Holder White and Steigmann concurred in the judgment and opinion.
OPINION
¶1 In June 2015, a jury found defendant, Joseph M. Jophlin, guilty of aggravated
driving under the influence of alcohol (aggravated DUI), a Class 2 felony (625 ILCS 5/11­
501(d)(1)(A), (d)(2)(B) (West 2014)), and driving while license revoked or suspended with three
prior convictions for driving while license revoked or suspended (DWR), a Class 4 felony (id.
§ 6-303(d-3)). In September 2015, the Macon County circuit court sentenced defendant to four
years and two years in prison to run concurrently and ordered defendant to pay specific fines,
fees, and assessments. Defendant appeals, arguing (1) the State presented insufficient evidence to
support his conviction for aggravated DUI and DWR; (2) the State engaged in vindictive
prosecution when it charged him with the more serious offense of aggravated DUI, a Class 2
felony, on the morning of trial, to punish him for exercising his right to a jury trial; (3) the
State’s repeated violation of the court’s in limine order deprived him of his right to a fair trial;
and (4) the circuit clerk improperly imposed numerous fines. We affirm in part and vacate in
part.
¶2 I. BACKGROUND
¶3 In July 2014, the State charged defendant by information with aggravated DUI, a
Class 4 felony (id. § 11-501(d)(1)(G), (d)(2)(A)) (count I), and DWR with three prior
convictions for DWR, a Class 4 felony (id. § 6-303(d-3)) (count II). The charges alleged that, on
July 20, 2014, defendant drove or was in actual physical control of a motor vehicle while under
the influence of alcohol (id. § 11-501(a)(2)), on a highway of Illinois, during a period in which
defendant’s driving privileges were revoked (id. § 6-303(a)).
¶4 A. Pretrial Hearing
¶5 At a pretrial hearing on December 12, 2014, the State requested an additional
pretrial hearing because defendant had a pending case not yet on file in another county. Defense
counsel informed the trial court the reason for the additional hearing was because the State
intended to file an additional charge against defendant for aggravated DUI, a Class 2 felony (id.
§ 11-501(d)(1)(A), (d)(2)(B)) (count III). Defense counsel indicated the change in classification
was “based on the defendant’s request for a jury trial.” The State did not respond to defense
counsel’s comment. The trial court did not inquire further.
¶6 B. Defendant’s Jury Trial
¶7 Below, we summarize the testimony elicited during defendant’s June 23, 2015,
jury trial.
¶8 1. Defendant’s Motion in Limine
¶9 On the morning of trial, defense counsel filed a motion in limine to exclude
evidence relating to results of a preliminary breath test, defendant’s prior convictions for DUI,
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and any evidence offered to “boost the credibility” of the investigating officers, such as evidence
of the number of DUI arrests made by the officers or evidence the officers did not arrest
everyone stopped for suspected DUI. The trial court ordered, “The state shall not be allowed to
introduce into evidence the results of the defendant’s preliminary breath test or the defendant’s
prior convictions for DUI or driving on a revoked or suspended license.”
¶ 10 2. Count III
¶ 11 After the trial court ruled on defendant’s motion in limine, the State moved to file
count III, charging defendant with aggravated DUI, a Class 2 felony (id.), the aggravating factor
being defendant had two prior DUI convictions in 2008 and 2011. Defense counsel stated, “I
don’t believe there’s any basis to object to that, Your Honor.” The State moved to dismiss count
I with no objection from defense counsel. The State informed the trial court defendant was
offered the opportunity to plead “open” to count I prior to filing count III, but defendant rejected
the offer. The trial court told defendant he was “taking a risk” by rejecting the deal on the Class 4
felony and proceeding to trial on a Class 2 felony. Defendant acknowledged he understood, and
the case proceeded.
¶ 12 3. Civilian Witnesses’ Testimony
¶ 13 The State called David Karius as a witness. Karius, a P&V gas station employee,
testified he had worked at the P&V gas station in Macon, Illinois, for 15 years. On July 20, 2014,
Karius testified he was on duty around 3 a.m. when he observed a maroon vehicle enter the gas
station parking lot and pull up to gas pump five directly in front of him. Karius was outside when
the vehicle pulled up and stated there was only one person in the vehicle. Karius estimated the
vehicle remained at the gas pump for roughly 20 or 30 minutes before the vehicle started to
overheat, causing it to smoke and leak fluid.
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¶ 14 Two gas station patrons approached the vehicle to wake the driver but did not get
a response. Karius then called the sheriff’s department to report an overheating vehicle with an
unresponsive driver. At some point after Karius called the police, a friend of Karius arrived,
opened the door to the vehicle, and “shook the driver awake.” Karius said the driver woke up and
came into the gas station to use the restroom. Karius identified the driver of the vehicle as
defendant, Joseph M. Jophlin.
¶ 15 The State next called Austin Webb as a witness. Webb testified he was a customer
of the gas station on July 20, 2014. Webb, upon arriving at the gas station, noticed a smoking
vehicle at one of the gas pumps. Webb was worried and tried to wake the driver. Webb first tried
tapping on the window but did not get a response. Then, Webb hit the roof of the vehicle. Webb
still did not get a response, so he opened the door and shook the driver awake. The driver got out
of the vehicle and went into the gas station. Webb identified the driver as defendant and noted he
was the only one in the vehicle.
¶ 16 The State next called Shelby Cohn as a witness. Cohn testified she accompanied
Webb to the gas station on July 20, 2014. Cohn said, when they arrived, she noticed a vehicle
overheating in the lot. Cohn observed Webb try to wake up the driver as well as turn the vehicle
off. Cohn identified the driver as defendant and as the only occupant of the vehicle. Cohn said,
when defendant got out of the vehicle, he “seemed very out of it, very incoherent.”
¶ 17 4. Police Witnesses’ Testimony
¶ 18 The State called Detective Roger Pope Jr. as a witness. Detective Pope testified he
had been with the Macon County Sheriff’s Department for 13 years and had been on duty the
morning of July 20, 2014. Detective Pope was dispatched to the P&V gas station for an
individual passed out in an overheating vehicle. Upon arrival, Detective Pope observed a maroon
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Chevy Lumina at pump five with no one inside. Detective Pope went inside the gas station and
observed the clerk and another individual, later identified as defendant.
¶ 19 Detective Pope testified he had encountered intoxicated individuals previously in
his employment. Defense counsel objected to this testimony saying, “I’m going to object on the
basis of my previous motion.” The trial court declined to allow a sidebar and overruled the
objection, noting it was proper foundation for the officer’s opinion regarding defendant’s
intoxication. Detective Pope continued, stating he worked the third shift and over his career he
had encountered “a few thousand” intoxicated individuals.
¶ 20 Detective Pope opined defendant was “extremely intoxicated” on July 20, 2014.
Defendant displayed a slow reaction in answering questions and exhibited a “dazed stare” when
Detective Pope spoke to him. Defendant told Detective Pope he consumed alcohol earlier in the
evening. Defendant smelled of alcohol and had red, bloodshot eyes. Defendant denied the
vehicle belonged to him; rather, the vehicle belonged to a friend, but he stated he had permission
to drive it. It was later determined the vehicle belonged to defendant’s mother. Defendant stated
he had been in Decatur, Illinois, earlier in the evening and several times told Detective Pope, “I
never told you I drove.” Detective Pope, after speaking with defendant, turned the case over to
Deputy Sheriff Matt Jedlicka.
¶ 21 The State next called Deputy Sheriff Matt Jedlicka as a witness. Deputy Sheriff
Jedlicka testified he had been with the Macon County Sheriff’s Department going on 11 years
and was dispatched to the P&V gas station on July 20, 2014, to check on the welfare of a male
asleep in a vehicle. Deputy Sheriff Jedlicka made contact with defendant after arriving at the gas
station. Defendant told Deputy Sheriff Jedlicka he had consumed “a few” Bud Light beers earlier
in the evening at a bar called Sliderz in Decatur, Illinois. Defendant denied driving and denied
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being asleep or woken up by anyone. Defendant refused to perform a field sobriety test and was
put under arrest. Once at jail, defendant declined chemical analysis of his body.
¶ 22 The State asked Deputy Sheriff Jedlicka, in the course of his work, how many
times he had encountered intoxicated individuals. Defense counsel objected for the same reason
as he did for Detective Pope, which the trial court overruled. Deputy Sheriff Jedlicka testified his
best estimate was he would observe 20 to 30 intoxicated persons per week in conjunction with
his duties as a sheriff’s deputy. Deputy Sheriff Jedlicka testified to defendant’s eyes being red, to
a smell of alcohol coming from defendant, and to defendant exhibiting a “slight hesitation” when
answering questions.
¶ 23 5. Stipulation
¶ 24 At the close of the State’s case, the trial court read into evidence the parties’
agreed upon stipulation to defendant’s driving abstract showing his driver’s license revoked on
July 20, 2014.
¶ 25 6. Jury Verdict
¶ 26 After the jury deliberated for 40 minutes, the jury found defendant guilty on both
counts.
¶ 27 C. Posttrial Proceedings
¶ 28 1. Posttrial Motion
¶ 29 In July 2015, defendant filed a motion for a new trial or, in the alternative,
judgment notwithstanding the verdict. Defendant argued, inter alia, the trial court erred in
overruling objections to testimony regarding the officers’ prior DUI experiences, which sought
to boost the witnesses’ credibility, because the testimony was barred by the in limine order.
Defense counsel further argued the trial court erred in denying his contemporaneous request for a
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sidebar to explain the basis for his objections. Defense counsel argued defendant was entitled to
a new trial because a violation of the motion in limine denied defendant a fair trial.
¶ 30 In September 2015, the trial court held a hearing on the posttrial motion. The
court explained the testimony in reference to the in limine order came out in the context of the
officers’ prior DUI investigations, so it was “certainly admissible.” In reference to defense
counsel requesting a sidebar, the court explained sidebars are a “bad idea” because they prevent
the court from making a record. The court stated defendant received a fair trial and there was
“more than sufficient evidence to support the verdicts” and denied defendant’s motion.
¶ 31 2. Sentencing
¶ 32 The trial court sentenced defendant to two years of imprisonment and one year of
mandatory supervised release on count II and a concurrent term of four years’ imprisonment
followed by two years of supervised release on count III. The court ordered defendant to pay
(1) a $1000 alcohol enforcement fee, (2) a $100 trauma center trust fund fee, (3) a $5 spinal cord
research fee, and (4) a $250 DNA fee. The court’s written sentencing order was silent as to
financial obligations. In a document not signed by the court, defendant was assessed the
following: (1) $50 court finance assessment, (2) $5 youth diversion assessment, (3) $270 lump-
sum surcharge, (4) $28.50 child advocacy fee, (5) $10 medical costs assessment, (6) $15 CASA
(court-appointed special advocate) assessment, (7) $100 violent crime victims assistance
assessment, (8) $108 drivers education assessment, (9) $9.50 nonstandard assessment, (10) $15
fire prevention assessment, (11) $15 firetruck lane fund, (12) $50 roadside memorial assessment,
(13) $15 state police operations assessment, (14) $4.75 drug court assessment, (15) $17 clerk op
add-ons, (16) $70 state’s attorney assessment, and (17) $10 state police services assessment.
¶ 33 This appeal followed.
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¶ 34 II. ANALYSIS
¶ 35 On appeal, defendant argues (1) the State presented insufficient evidence to
support his conviction for aggravated DUI and DWR; (2) the State engaged in vindictive
prosecution when it charged him with the more serious offense of aggravated DUI, a Class 2
felony, on the morning of trial to punish him for requesting a jury trial; (3) the State’s repeated
violation of the court’s in limine order deprived him of his right to a fair trial; and (4) the circuit
court improperly imposed numerous fines. We address these issues in turn.
¶ 36 A. Sufficiency of the Evidence
¶ 37 Defendant argues this court should reverse his conviction because the State lacked
sufficient evidence to convict him of aggravated DUI and DWR beyond a reasonable doubt. The
State responds by quoting the trial court where it noted there was “more than sufficient evidence
to support the verdicts.” We agree with the trial court.
¶ 38 When a reviewing court considers a challenge to the sufficiency of the evidence it
must determine “ ‘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 crime
beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Cunningham, 212 Ill. 2d 274, 278,
818 N.E.2d 304, 307 (2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A
reviewing court generally will not substitute its judgment for the trier of fact’s where the trier of
fact determines the credibility of the witnesses, the weight to be given to the testimony, and the
inferences drawn from the evidence. People v. Bradford, 2016 IL 118674, ¶ 12, 50 N.E.3d 1112.
A reviewing court will reverse a conviction only where the evidence is so improbable and
unsatisfactory it creates a reasonable doubt as to defendant’s guilt. Id.
¶ 39 1. Driving While License Revoked
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¶ 40 A person commits the offense of driving while license revoked or suspended with
three prior convictions for driving while license revoked or suspended when he drives or is in
actual physical control of a motor vehicle on a highway of the state, at a time when his driver’s
license is revoked, and he has three times previously received a conviction for DWR. 625 ILCS
5/6-303(d-3) (West 2014). The parties have stipulated to defendant’s license being revoked on
July 20, 2014, but defendant argues the State failed to prove on July 20, 2014, he drove a motor
vehicle on a highway of the state. Defendant does not dispute his prior convictions for DWR.
¶ 41 Defendant argues the State failed to show defendant drove on a highway of the
state because the State did not establish defendant entered the gas station’s private parking lot
from a public road rather than from an adjacent private parking lot. The State cites Village of
Lake Villa v. Bransley, 348 Ill. App. 3d 280, 282-83, 809 N.E.2d 816, 818-19 (2004), in arguing
the term “highway” has been broadly interpreted to include streets and parking lots on privately
owned property, so long as they are publically maintained and open to public use. In Bransley,
the defendant was convicted of operating a motorcycle, on an expired license, in a subdivision.
Id. at 282. The defendant argued he was riding on a private road. Unbeknownst to defendant, the
Village of Lake Villa, Illinois, held title to the streets in the subdivision and contracted to the
developer of the subdivision the job of maintaining the streets. Id. at 282-84.
¶ 42 P&V gas station is open to public use, but the State did not provide any evidence
showing a body of government directly maintains or contracts for the maintenance of the gas
station. The State’s argument is distinguishable from Bransley where it failed to provide
evidence on maintenance. The State does, however, provide evidence defendant had been in
Decatur, Illinois, prior to arriving at the gas station, and we conclude defendant fails to give
sufficient weight to the testimony presented at trial on this fact.
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¶ 43 Prior case law has also established “[a] person need not drive to be in actual
physical control of a vehicle, nor is the person’s intent to put the car in motion relevant to the
determination of actual physical control.” City of Naperville v. Watson, 175 Ill. 2d 399, 402, 677
N.E.2d 955, 957 (1997). “[I]ndividuals discovered sleeping in vehicles have been found to be in
actual physical control.” Id. Even individuals asleep in vehicles where the vehicle is not running
and the keys are not in the ignition have been found to be in actual physical control. People v.
Morris, 2014 IL App (1st) 130152, ¶¶ 18-19, 16 N.E.3d 269.
¶ 44 Karius testified he saw defendant drive into the P&V gas station parking lot
around 3 a.m. on July 20, 2014, and was the only person in the vehicle. Karius observed
defendant asleep in the driver’s seat while the vehicle was running. Two other witnesses also
testified to defendant being the only occupant of the vehicle and the vehicle running while
defendant was asleep in the driver’s seat. Defendant told both Detective Pope and Deputy Sheriff
Jedlicka he had been in Decatur, Illinois, earlier in the evening.
¶ 45 All of this testimony combined is enough for a reasonable jury to find, beyond a
reasonable doubt, defendant drove or was in actual physical control of a vehicle and traveled
from Decatur, Illinois, to Macon, Illinois, by using public roads. Based on the testimony elicited
at trial, the State presented sufficient evidence to sustain defendant’s conviction for DWR.
¶ 46 2. Aggravated Driving Under the Influence
¶ 47 A person commits the offense of aggravated DUI, a Class 2 felony, when he
drives or is in actual physical control of a vehicle while under the influence of alcohol and has at
least two prior DUI convictions. 625 ILCS 5/11-501(d)(1)(A), (d)(2)(B) (West 2014). We defer
to the argument above concerning defendant driving or being in actual physical control of a
vehicle on July 20, 2014. Here, defendant argues the State did not provide sufficient evidence he
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was intoxicated on July 20, 2014, because no direct evidence showed defendant’s blood alcohol
content. Defendant did not dispute his two prior convictions for DUI.
¶ 48 To prove a defendant committed the crime of DUI, the State may rely on
circumstantial evidence. People v. Halerewicz, 2013 IL App (4th) 120388, ¶ 24, 2 N.E.3d 333.
The testimony of a single officer is sufficient to sustain a conviction of DUI. Id. We are mindful
the testimony of a single witness must be positive and credible to convict, but contradiction by
defendant does not diminish the weight of the testimony. People v. Siguenza-Brito, 235 Ill. 2d
213, 228, 920 N.E.2d 233, 242 (2009).
¶ 49 Defendant declined to perform a field sobriety test and declined chemical testing
to determine his blood alcohol content, so the only evidence left for the State to use was
circumstantial evidence. While it only takes one credible witness’s testimony to convict, here,
there are multiple witnesses who testified to defendant’s actions and demeanor on July 20, 2014.
¶ 50 Karius watched defendant drive into the gas station and fall asleep while his
vehicle overheated. Webb could not easily rouse defendant awake despite defendant’s vehicle
overheating and Webb banging on the vehicle window and roof. Rather, Webb physically shook
defendant awake. Cohn described defendant as “very out of it, very incoherent.” Detective Pope
noted defendant answered questions very slowly, had a “dazed stare,” smelled like alcohol, and
had red, bloodshot eyes. Deputy Sheriff Jedlicka testified to defendant’s eyes being red and
defendant smelling of alcohol. Defendant also told both officers he had consumed alcohol earlier
in the evening.
¶ 51 Despite multiple witnesses testifying to defendant’s actions and demeanor,
defendant argues the State failed to produce evidence of defendant’s blood alcohol content and
failed to produce video surveillance from the night in question. These facts do not undermine the
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State’s argument because the evidence above, taken in consideration together, is sufficient to
prove defendant was intoxicated on July 20, 2014. The evidence and testimony also align with
prior case law in this area, where individuals found asleep in vehicles with the engine running
and without the engine running while exhibiting signs of intoxication have been found guilty of a
DUI. Watson, 175 Ill. 2d at 405; Morris, 2014 IL App (1st) 130152, ¶ 29.
¶ 52 We find the State presented sufficient evidence for the jury to conclude, beyond a
reasonable doubt, defendant drove a vehicle while intoxicated on July 20, 2014, and we sustain
defendant’s conviction for aggravated DUI.
¶ 53 B. Vindictive Prosecution
¶ 54 Defendant next argues the State engaged in vindictive prosecution when it filed
count III, aggravated DUI, a Class 2 felony, on the morning of trial, as a replacement for count I,
aggravated DUI, a Class 4 felony. Defendant argues the more serious charge was filed in
retaliation for defendant’s decision to proceed to a jury trial. The State strongly denies the
assertion of vindictive prosecution and states the change in charge was permissible as part of
plea bargaining negotiations. We agree with the State.
¶ 55 Vindictive prosecution claims present questions of law and fact. People v. Hall,
311 Ill. App. 3d 905, 910, 726 N.E.2d 213, 218 (2000). The trial court’s legal conclusions are
reviewed de novo, but a reviewing court will not disturb the trial court’s findings of fact unless
clearly erroneous. Id.
¶ 56 1. Forfeiture
¶ 57 Defendant failed to raise the allegation of vindictive prosecution at trial or in a
posttrial motion. The argument is forfeited on review. See People v. Sebby, 2017 IL 119445,
¶ 48; 89 N.E.3d 675. Defendant argues he is entitled to relief under plain-error review.
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¶ 58 2. Plain-Error Review
¶ 59 The plain-error doctrine provides a narrow exception to the general forfeiture rule.
Id. Under plain-error review, we will reverse a forfeited error if the error was clear and obvious
and either (1) the evidence was so closely balanced the error alone threatened to tip the scales of
justice against defendant or (2) the error was so serious it affected the fairness of defendant’s
trial and challenged the integrity of the judicial process. Id. We first look to see whether an error
occurred. Id. ¶ 49.
¶ 60 A prosecution is “vindictive” and violates due process of law if undertaken
merely “[t]o punish a person because he has done what the law plainly allows him to do.” United
States v. Goodwin, 457 U.S. 368, 372 (1982). Defendant argues the State engaged in vindictive
prosecution when it filed a more serious Class 2 felony charge against him after he requested a
jury trial. While the State filed the more serious charge on the morning of trial, defendant fails to
mention the additional charge was filed only after defendant had the opportunity to plead “open”
to count I prior to filing count III and he declined.
¶ 61 Due process is not violated by all possibilities of increased punishment but rather
only by those that pose a realistic likelihood of actual vindictiveness. Blackledge v. Perry, 417
U.S. 21, 27 (1974). The United States Supreme Court has held a presumption of prosecutorial
vindictiveness adheres where a prosecutor brings additional and more serious charges against a
defendant after defendant has been convicted of an offense and the court has overruled his
conviction. Goodwin, 457 U.S. at 381. No such presumption arises in the pretrial setting where
the prosecutor has broad discretion in charging a defendant. Id. at 381-82. A coincidence of
timing, or even the presence of suspicious timing, is not sufficient to establish prosecutorial
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animus because broad discretion is granted to the prosecutor at the pretrial stage. People v.
Rendak, 2011 IL App (1st) 082093, ¶ 18, 957 N.E.2d 543.
¶ 62 This case is analogous to Rendak, where the defendant argued the timing of the
refiling of criminal charges against her raised the presumption of vindictive prosecution because
the criminal charges were refiled after she filed a civil rights suit against the City of Chicago. Id.
¶ 16. The First District disagreed, explaining timing alone of the filing of charges was not
sufficient to prove vindictiveness. Id. ¶ 20. Here, the State’s filing of count III prior to trial does
not give rise to vindictive prosecution where defendant had previously been given an opportunity
to plead “open” to count I before count III was filed.
¶ 63 In the absence of a presumption of vindictiveness, defendant must prove a
heightened standard applies showing (1) objective evidence the prosecutor had some animus or
retaliatory motive and (2) objective evidence the prosecution would not have occurred absent the
motive. Id. Defendant argues there is objective evidence of vindictiveness because the State filed
the more serious charge after attempts to negotiate a plea agreement were unsuccessful.
¶ 64 This case is also similar to Goodwin, where a pretrial decision was made to
modify the charges after respondent declined to plead guilty during plea negotiations and
requested a jury trial. Goodwin, 457 U.S. at 371. The outcome of Goodwin, as in Bordenkircher
v. Hayes, 434 U.S. 357, 365 (1978), was mandated by the Court’s acceptance of plea
negotiations as a legitimate process. Hence, “additional” charges could not necessarily be
characterized as an impermissible “penalty.” Goodwin, 457 U.S. at 378-79 (discussing
Bordenkircher). The Goodwin Court determined no vindictive prosecution occurred where the
prosecution has broad discretion before trial and where the prosecution never suggested the
charge be brought to influence the respondent’s conduct. Id. at 380-81. Here, the State never
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suggested the Class 2 felony charge was brought to influence defendant to plead guilty and not
go to trial; rather it was brought because defendant had two prior DUI convictions. The instant
case falls squarely within the Goodwin and Bordenkircher analysis.
¶ 65 Defendant was given a chance to plead “open” to the lesser charge before his case
went to a jury trial, and he declined to do so. Prior to trial, the trial court judge even told
defendant he was “taking a risk” by rejecting the deal on the Class 4 felony and proceeding to
trial on the Class 2 felony. Defendant acknowledged he understood the risk. Defendant’s
additional charge did not give rise to vindictive prosecution. Finding no error, we need not
proceed with the plain-error analysis.
¶ 66 3. Ineffective Assistance of Counsel
¶ 67 Defendant attempts to get around forfeiture by arguing the failure to object to the
filing of count III denied him effective assistance of trial counsel. Claims of ineffective
assistance of trial counsel are reviewed under the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must prove (1) counsel’s
performance was deficient, as it fell below an objective standard of reasonableness; and (2) the
deficient performance prejudiced defendant. Id. at 687.
¶ 68 Defendant’s argument fails because, as noted above, no objective evidence
supported defendant’s allegations of vindictiveness. It also was not unreasonable for trial counsel
to choose not to raise this issue in order to preserve it on appeal. The result would not have been
different had counsel preserved this claim. Defense counsel’s failure to object to filing of the
more serious charge on the morning of trial does not constitute ineffective assistance of counsel.
¶ 69 C. Abuse of Discretion
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¶ 70 Defendant next argues the trial court abused its discretion when it denied
defendant’s motion for a new trial. Defendant argues he was denied his right to a fair trial when
the State, at trial, brought up evidence barred by an in limine order. The State responds by
arguing the officers’ testimony was not barred by the in limine order because it was admissible as
foundation for the officers’ opinion testimony regarding defendant’s intoxication. We agree with
the State.
¶ 71 The denial of a motion for a new trial will not be disturbed on review in the
absence of a showing the trial court abused its discretion. People v. Hall, 194 Ill. 2d 305, 343,
743 N.E.2d 521, 543 (2000). An abuse of discretion will be found “ ‘where the trial court’s
ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view
adopted by the trial court.’ ” People v. Patrick, 233 Ill. 2d 62, 68, 908 N.E.2d 1, 5 (2009)
(quoting People v. Hall, 195 Ill. 2d 1, 20, 743 N.E.2d 126, 138 (2000)).
¶ 72 Defendant filed a pretrial motion in limine, arguing, inter alia, the State should be
precluded from offering evidence to “boost the credibility” of its police witnesses by presenting
evidence of their prior DUI experience. The trial court granted the motion in limine in its
entirety. The trial court did not speak to this issue when granting the motion. An in limine motion
allows a party to obtain an order before trial excluding inadmissible evidence and prohibiting
interrogation concerning evidence without the necessity of having the questions asked and
objections made in front of the jury. Reidelberger v. Highland Body Shop, Inc., 83 Ill. 2d 545,
549, 416 N.E.2d 268, 271 (1981).
¶ 73 To the extent the trial court’s order in limine is not clear and there is a difference
of opinion regarding its boundaries, it is proper for the trial court to clarify its order during trial
where the court’s ruling on a motion in limine is an interlocutory order and always subject to
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reconsideration during trial. People v. Drum, 321 Ill. App. 3d 1005, 1008, 748 N.E.2d 344, 347
(2001). During defendant’s trial, defense counsel objected to the State’s line of questioning,
arguing the inquiry into the officers’ histories of DUI arrests violated the in limine order. The
trial court overruled defendant’s objections, stating the testimony was proper foundation for the
officers’ opinions regarding defendant’s intoxication. The trial court also declined defense
counsel’s request for a sidebar. It was within the trial court’s discretion to allow the officers’
testimony to come in at trial because the testimony laid foundation for the officers’ opinions of
the defendant’s intoxication and the in limine order was subject to reconsideration at trial.
¶ 74 The trial court did not abuse its discretion in denying defendant’s motion for a
new trial because defendant was not denied a fair trial based on the police officers’ in limine
testimony coming in at trial.
¶ 75 D. Clerk-Imposed Fines
¶ 76 Defendant finally argues the circuit clerk improperly imposed various fines
against him. The State concedes this issue and asks the court enter an order consistent with prior
case law in this area. We agree and review de novo. People v. Warren, 2016 IL App (4th)
120721-B, ¶ 99, 55 N.E.3d 117.
¶ 77 A fine is a financial punishment imposed as part of a sentence on a person
convicted of a criminal offense. Id. ¶ 93. The circuit court can levy a fee on a defendant, but only
the trial court can impose fines. People v. Smith, 2014 IL App (4th) 121118, ¶ 18, 18 N.E.3d
912.
¶ 78 The trial court ordered defendant pay several items: (1) a $1000 alcohol
enforcement fee, (2) a $100 trauma center trust fund fee, (3) a $5 spinal cord research fee, and
(4) a $250 DNA fee. The certified fines and fees sheet contains no indication the court ordered or
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intended to impose any other assessments. The court’s written sentencing order was silent as to
financial obligations.
¶ 79 As evidenced by prior case law, the circuit clerk improperly imposed the
following fines: (1) $50 court finance assessment; (2) $5 youth diversion assessment; (3) $270
lump-sum surcharge assessment (People v. Hible, 2016 IL App (4th) 131096, ¶¶ 16, 20, 24, 53
N.E.3d 319); (4) $28.50 child advocacy fee; (5) $10 medical costs assessment; (6) $15 CASA
assessment, which is comparable to the children’s advocacy center assessment (People v. Daily,
2016 IL App (4th) 150588, ¶ 30, 74 N.E.3d 15); (7) $100 violent crime victims assistance
assessment (Smith, 2014 IL App (4th) 121118, ¶ 63); (8) $108 drivers education assessment
(People v. Jones, 223 Ill. 2d 569, 603, 861 N.E.2d 967, 987 (2006)); (9) $9.50 nonstandard
assessment; (10) $15 fire prevention assessment; (11) $15 firetruck lane fund assessment; (12)
$50 roadside memorial assessment (People v. O’Laughlin, 2012 IL App (4th) 110018, ¶¶ 12, 15,
16, 979 N.E.2d 1023); (13) $15 state police operations assessment; (14) $4.75 drug court
assessment (Warren, 2016 IL App (4th) 120721-B, ¶¶ 138, 147); (15) $17 clerk op add-ons
assessment; (16) $70 state’s attorney assessment; and (17) $10 state police services assessment.
The last three fines collectively make up a juvenile expungement fund assessment. Id. ¶¶ 133-34.
¶ 80 Nothing in the record suggests the court reviewed, approved, or intended to
incorporate the clerk’s calculations. We therefore vacate the fines improperly imposed by the
circuit clerk and decline to remand for the fines to be reimposed.
¶ 81 III. CONCLUSION
¶ 82 We vacate the fines improperly imposed by the circuit clerk. We otherwise affirm.
As part of our judgment, we award the State its $50 statutory assessment against defendant as
costs of this appeal.
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¶ 83 Affirmed in part and vacated in part.
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