People v. Butler ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Butler, 2013 IL App (5th) 110282
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ROBERT A. BUTLER, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-11-0282
Filed February 6, 2013
Held Defendant’s claim for a credit, based on his presentencing incarceration,
(Note: This syllabus against the imposition of the fee for the Children’s Advocacy Center was
constitutes no part of properly raised on appeal from the dismissal of his postconviction
the opinion of the court petition, notwithstanding the fact that the credit did not involve the denial
but has been prepared of a constitutional right that is cognizable in proceedings under the Post-
by the Reporter of Conviction Hearing Act, since a claim for such a credit may be raised at
Decisions for the any time and at any stage of court proceedings, and although labeled a
convenience of the “fee,” it was a fine, because it did not compensate the State for
reader.)
prosecuting defendant; therefore, the mittimus was corrected to reflect a
$30 credit.
Decision Under Appeal from the Circuit Court of Wayne County, No. 10-CF-162; the
Review Hon. Joe Harrison, Judge, presiding.
Judgment Mittimus modified.
Counsel on Michael J. Pelletier, Ellen J. Curry, and Lawrence J. O’Neill, all of State
Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.
David Williams, State’s Attorney, of Fairfield (Patrick Delfino, Stephen
E. Norris, and Sharon Shanahan, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Presiding Justice Spomer and Justice Stewart concurred in the judgment
and opinion.
OPINION
¶ 1 The instant case stems from a postconviction petition filed by defendant, Robert A.
Butler. Defendant pled guilty to unlawful delivery of a controlled substance (720 ILCS
570/407(b)(3) (West 2010)). Pursuant to a negotiated plea, defendant was sentenced to five
years in the Department of Corrections to be followed by two years of mandatory supervised
release, awarded credit for time served from November 23, 2010, until March 3, 2011, and
charged $291 in costs and fees, including a $30 Children’s Advocacy Center fee. No
postjudgment motion was filed.
¶ 2 On May 9, 2011, defendant filed a pro se postconviction petition in which he argued his
sentence should be reduced because he was not sufficiently admonished about the two-year
period of mandatory supervised release. The trial court dismissed the petition at the first
stage, finding the allegations without merit. In this appeal, the only issue we are asked to
address is whether defendant is entitled to a $5-a-day credit against the $30 Children’s
Advocacy Center fee (55 ILCS 5/5-1101(f-5) (West 2008)) imposed at sentencing.
¶ 3 Defendant argues that pursuant to section 110-14 of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/110-14 (West 2008)), he is entitled to a $5-a-day credit against the
$30 fee for the time he spent in jail awaiting his sentence. The State replies that defendant’s
argument does not raise a cognizable claim under the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 to 122-8 (West 2008)) and asks us to deny defendant’s request for a per
diem monetary credit.
¶ 4 Section 110-14(a) of the Code provides that “[a]ny person incarcerated on a bailable
offense who does not supply bail and against whom a fine is levied on conviction of such
offense shall be allowed a credit of $5 for each day so incarcerated upon application of the
defendant.” 725 ILCS 5/110-14(a) (West 2008). According to section 110-14, the amount
of the available credit is calculated by multiplying $5 by the number of days of incarceration.
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725 ILCS 5/110-14(a) (West 2008). Section 110-14 specifies that this credit is available only
against a “fine.” A charge is a fine, even if the legislature labels it a fee, if it “does not seek
to compensate the state for any costs incurred as the result of prosecuting the defendant.”
People v. Jones, 223 Ill. 2d 569, 600, 861 N.E.2d 967, 986 (2006). Thus, despite the label
of a fee, the $30 for the Children’s Advocacy Center is a “fine.” People v. Mimes, 2011 IL
App (1st) 082747, ¶ 84, 953 N.E.2d 55. While the State does not disagree, it insists that when
a defendant appeals under the auspices of the Act, but raises no question thereunder and the
only claim for relief is a per diem monetary credit, the appropriate remedy is correction of
the mittimus by the trial court. We disagree.
¶ 5 In People v. Caballero, 228 Ill. 2d 79, 885 N.E.2d 1044 (2008), the defendant raised the
issue of a per diem monetary credit under section 110-14 of the Code for the first time on
appeal in postconviction proceedings. In that case, the State argued that the defendant’s claim
under section 110-14 involved a statutory right, not a constitutional right, and, thus, was not
cognizable in a postconviction proceeding. 228 Ill. 2d at 83, 885 N.E.2d at 1046. Our
supreme court disagreed, stating as follows:
“While we hold that a claim for monetary credit under section 110-14 is a statutory
claim and therefore not cognizable as a separate issue upon which to base relief under the
Post-Conviction Hearing Act, we also hold that this statutory claim may be considered
as an ‘application of the defendant’ made under the statute and may be raised at any time
and at any stage of court proceedings, even on appeal in a postconviction proceeding.
Accordingly, if, as in this case, the basis for granting the application of the defendant is
clear and available from the record, the appellate court may, in the ‘interests of an orderly
administration of justice,’ grant the relief requested.” 228 Ill. 2d at 88, 885 N.E.2d at
1049.
This language is unequivocal and allows a defendant to raise a claim for monetary credit
under section 110-14 at any time and at any stage of court proceedings, even, as here, on
appeal from a postconviction proceeding.
¶ 6 Nevertheless, the State insists that Caballero is distinguishable from the instant case
because Caballero included an issue based upon the Act. In Caballero, the defendant also
asserted the trial court erred in dismissing his petition because it sufficiently alleged the gist
of a constitutional claim of ineffective assistance of counsel. Caballero, 228 Ill. 2d at 82, 885
N.E.2d at 1045. The State also insists that the underlying policy of judicial economy supports
its position because if a defendant can raise a statutory claim for a per diem monetary credit
at any time, then it would behoove a defendant to raise the point in the circuit court where
he or she can receive prompt relief, without the lengthy wait and use of judicial resources
necessarily incurred in an appeal. We reject the State’s arguments.
¶7 The State’s argument that defendant is not entitled to relief because this is the only issue
raised on appeal is not supported by Caballero, which specifically states that a defendant is
allowed to raise a claim for a monetary credit even for the first time on appeal in a
postconviction proceeding. Moreover, the State’s argument for promoting judicial economy
falls flat. In order to promote judicial economy, it simply makes no sense for us not to do
what we are allowed to do. While defendant did not apply for a credit in the trial court, the
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credit is mandatory and, relying on Caballero, we find defendant is permitted to make his
request for the first time on appeal in a postconviction proceeding. Here, the record is clear
that defendant spent more than enough days in presentence custody to give him a $30 credit
against his Children’s Advocacy Center fee.
¶ 8 For the foregoing reasons, we order the mittimus modified to reflect a $30 credit of the
Children’s Advocacy Center fee.
¶ 9 Mittimus modified.
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