People v. Blalock , 976 N.E.2d 643 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Blalock, 2012 IL App (4th) 110041
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RONALD RICHARD BLALOCK, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-11-0041
Filed September 10, 2012
Held Defendant’s motion for reduction of his sentence was untimely due to his
(Note: This syllabus failure to comply with the affidavit requirement of Supreme Court Rule
constitutes no part of 12(b)(3); however, where the requirements of the revestment doctrine
the opinion of the court were satisfied, defendant’s claims concerning the assessments imposed
but has been prepared were considered, and while both the drug-court and the children’s-
by the Reporter of advocacy-center assessments were vacated on the ground they were
Decisions for the imposed by the circuit clerk, not the trial court, the reviewing court
convenience of the reimposed only the drug-court fine, because the children’s-advocacy-
reader.)
center fee was not authorized until after the date of defendant’s offense.
Decision Under Appeal from the Circuit Court of McLean County, No. 07-CF-1128; the
Review Hon. Charles G. Reynard, Judge, presiding.
Judgment Affirmed in part as modified, vacated in part, and cause remanded with
directions.
Counsel on Michael J. Pelletier, Karen Munoz and Arden J. Lang, all of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
William A. Yoder, State’s Attorney, of Bloomington (Patrick Delfino,
Robert J. Biderman and Aimee Sipes Johnson, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE McCULLOUGH delivered the judgment of the court, with
opinion.
Justice Steigmann concurred in the judgment and opinion.
Justice Cook specially concurred, with opinion.
OPINION
¶1 In October 2007, the State charged defendant, Ronald Richard Blalock, with two counts
of unlawful use of a weapon by a convicted felon (720 ILCS 5/24-1.1(a) (West 2006))
committed on October 17, 2007. In May 2008, pursuant to a fully negotiated plea agreement,
defendant pleaded guilty to one count in exchange for the State’s dismissal of the second
count and a recommendation of a four-year sentence cap. In November 2008, the trial court
sentenced defendant to 30 months’ probation, the first 12 months of which were intensive
supervision that included 6 months in jail to be served on a periodic basis.
¶2 The State filed petitions to revoke defendant’s probation in October 2009, April 2010,
and June 2010. In May 2010, the trial court conducted a hearing on the State’s first petition
to revoke and found defendant in violation of probation. On July 8, 2010, the court
resentenced defendant to 4 years’ imprisonment, with credit for 183 days as time served. The
court’s supplemental sentencing judgment reincorporated fines and costs already ordered.
On the State’s motion, the court dismissed the second and third petitions for revocation of
probation.
¶3 On August 10, 2010, defendant pro se filed a motion for reduction of sentence. On
September 30, 2010, defense counsel filed a supplemental motion to reduce sentence.
Following a December 2010 hearing, the trial court denied the motion to reconsider.
¶4 Defendant appeals, asserting (1) the McLean County circuit clerk lacked authority to
impose the $10 drug-court and $15 children’s-advocacy assessments; (2) the children’s-
advocacy-center fine is void because it was not authorized by statute when defendant
committed his offense; and (3) he is entitled to a $5 per diem credit toward his fines for each
day spent in pretrial custody (725 ILCS 5/110-14(a) (West 2006)).
¶5 The State asserts that the trial court lacked jurisdiction to hear defendant’s postjudgment
motion because it was untimely. Thus, the State contends this court lacks jurisdiction and
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must dismiss defendant’s appeal. Because a reviewing court must first ascertain its
jurisdiction before addressing the merits of an appeal, we first address the State’s
jurisdictional argument. People v. Smith, 2011 IL App (4th) 100430, ¶ 11, 960 N.E.2d 595.
¶6 In this case, the trial court resentenced defendant to four years’ imprisonment for
violating his probation on July 8, 2010. Thus, defendant had until Monday, August 9, 2010,
to file a motion to reconsider his sentence or appeal his sentence order. See 5 ILCS 70/1.11
(West 2010) (providing if the last day of a time period falls on a Saturday or Sunday, the
Saturday or Sunday is not included in the computation); see also People v. Allison, 356 Ill.
App. 3d 248, 251, 825 N.E.2d 1217, 1220 (2005) (“ ‘the filing of a motion to reconsider
sentence or disposition following a probation[-]revocation hearing is unnecessary before
taking an appeal, [so] complying with the requirements of Rule 604(d) is likewise
unnecessary’ ” (quoting In re J.E.M.Y., 289 Ill. App. 3d 389, 391, 682 N.E.2d 451, 452
(1997))). Generally, “[a] court will consider an incarcerated defendant’s postplea motion
timely filed if the defendant placed it in the prison mail system within the 30-day period,
regardless of the date on which the clerk’s office received or file-stamped it.” Smith, 2011
IL App (4th) 100430, ¶ 13, 960 N.E.2d 595 (citing People v. Tlatenchi, 391 Ill. App. 3d 705,
710, 909 N.E.2d 198, 204 (2009)). However, pursuant to Illinois Supreme Court Rule
12(b)(3) (eff. Dec. 29, 2009), when a defendant relies upon the date of mailing as the date
of filing for a postplea motion, proof of mailing must be provided as follows:
“[I]n case of service by mail ***, by certificate of the attorney, or affidavit of a person
other than the attorney, who deposited the paper in the mail ***, stating the time and
place of mailing ***, the complete address which appeared on the envelope or package,
and the fact that proper postage or the delivery charge was prepaid.”
¶7 Here, the circuit court clerk’s office file-stamped defendant’s pro se motion on Tuesday,
August 10, 2010. Thus, if the date the circuit clerk’s office file-stamped the motion controls,
defendant’s motion is untimely, and this court lacks jurisdiction. The envelope in which
defendant mailed his pro se motion shows a postage mark of August 6, 2010, a Friday. The
record establishes defendant used a single sheet of paper to address the following three
requirements: (1) sworn statement that the attached motion was true and correct in substance
(located at top of paper), (2) notice of filing (located in middle of paper), and (3) affidavit
of service (located at bottom of paper). The only notarization on this piece of paper
containing the three requirements is located at the top of the paper directly under the sworn
statement and above the notice of filing and is dated August 5, 2010, a Thursday. As
mentioned previously, Rule 12(b)(3) requires that the date of mailing be proved by affidavit.
“Our supreme court [has] emphasized ‘an affidavit must be sworn to, and statements in a
writing not sworn to before an authorized person cannot be considered affidavits.’ ” Smith,
2011 IL App (4th) 100430, ¶ 18, 960 N.E.2d 595 (quoting Roth v. Illinois Farmers Insurance
Co., 202 Ill. 2d 490, 494, 782 N.E.2d 212, 214 (2002)).
¶8 Defendant acknowledges that this court recently dismissed an appeal for lack of
jurisdiction under Illinois Supreme Court Rule 604(d) (eff. July 1, 2006), finding that the
defendant’s motion for a new trial and motion to reduce sentence were not timely mailed
because the affidavit of service and proof of service were not notarized. Smith, 2011 IL App
(4th) 100430, ¶ 19, 960 N.E.2d 595. In dismissing for lack of jurisdiction, we found
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Tlatenchi, 391 Ill. App. 3d at 710, 909 N.E.2d at 204, persuasive. In Tlatenchi, the First
District Appellate Court found that failure to notarize the proof of service filed with a motion
or pleading rendered it insufficient to establish compliance with Rule 12(b)(3). Tlatenchi,
391 Ill. App. 3d at 716, 909 N.E.2d at 209. Defendant asserts that Tlatenchi was recently
called into question by the Second District Appellate Court in People v. Hansen, 2011 IL
App (2d) 081226, ¶ 15, 952 N.E.2d 82, which found in dicta that Rule 12(b)(3)’s affidavit
requirement made it “virtually impossible for a pro se defendant to comply with the rule.”
However, in Smith, this court specifically disagreed with Hansen and found no reason to
depart from the Tlatenchi requirement that proof of mailing must comply with Rule 12(b)(3).
Smith, 2011 IL App (4th) 100430, ¶ 17, 960 N.E.2d 595.
¶9 Defendant further argues that this court need not rely on Smith or Tlatenchi to decide his
case because the notice of motion for reduction of sentence, motion for reduction of
sentence, and the sheet of paper containing the notarized sworn statement, notice of filing,
and affidavit of service are stapled together in the record, suggesting that they were filed as
one. Each sheet of paper bears the August 10, 2010, file stamp and each page is notated in
the bottom left corner as “Form revised 11/1/01.” The post date on the envelope these
documents were allegedly mailed in is August 6, 2010. Thus, defendant asserts all these facts
demonstrate that the documents were attached when mailed and were all placed in the prison
mail system on August 5 or August 6, 2010. Further, defendant argues that any irregularity
arising from the peculiarity of the 2001 form document likely obtained from the prison
library (in which the only space for a notary signature is at the top of the form), should not
be laid at defendant’s feet.
¶ 10 The State disagrees and points out that (1) defendant cites no case law holding that a
notarization of a defendant’s sworn statement may also be considered evidence the affidavit
of service was properly notarized when both are addressed on a single piece of paper, and (2)
more than one set of staple holes are visible on the forms, so whether the documents were
originally mailed together is mere speculation. Further, the State asserts that defendant’s
affidavit is also insufficient for failing to state “the complete address which appeared on the
envelope or package” as required by Rule 12(b)(3).
¶ 11 Regardless of whether defendant mailed all of the documents together in the envelope
bearing an August 6, 2010, postmark date, the documents are insufficient to prove
defendant’s motion for reduction of sentence was timely filed. Our supreme court has chosen
to require a certificate or affidavit of mailing, rather than a postmark date, as proof of mailing
under Rule 12(b)(3). “Supreme court rules ‘ “have the force of law, and the presumption
must be that they will be obeyed and enforced as written.” ’ ” (Emphasis omitted.) People
v. Tapp, 2012 IL App (4th) 100664, ¶ 3 (quoting Rodriguez v. Sheriff’s Merit Comm’n, 218
Ill. 2d 342, 353, 843 N.E.2d 379, 385 (2006), quoting Roth, 202 Ill. 2d at 494, 782 N.E.2d
at 215). Further, “ ‘the appellate court does not have the authority to excuse the filing
requirements of the supreme court rules governing appeals.’ ” Tapp, 2012 IL App (4th)
100664, ¶ 3 (quoting Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d
209, 217-18, 902 N.E.2d 662, 667 (2009)). Because defendant failed to comply with Rule
12(b)(3)’s affidavit requirement, his motion for reduction of sentence is considered filed on
Tuesday, August 10, 2010, the date on which the circuit court clerk file-stamped it. As a
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result, defendant’s motion was untimely. See Smith, 2011 IL App (4th) 100430, ¶ 19, 960
N.E.2d 595.
¶ 12 While neither party raises this issue in its brief, we have considered the doctrine of
revestment to determine whether the trial court was revested with jurisdiction despite
defendant’s untimely filing of his motion for reduction of sentence. Under the doctrine of
revestment, “the parties can revest a court with jurisdiction so long as (1) the court has
general jurisdiction over the matter and personal and subject-matter jurisdiction over the
particular cause; (2) the parties actively participate without objection; and (3) the proceedings
are inconsistent with the merits of the prior judgment.” People v. Lindmark, 381 Ill. App. 3d
638, 652, 887 N.E.2d 606, 618 (2008) (citing People v. Minniti, 373 Ill. App. 3d 55, 65, 867
N.E.2d 1237, 1246 (2007)). In Lindmark, this court stated, “[i]f a trial court is revested with
jurisdiction, then a notice of appeal filed within 30 days after a ruling on the untimely
postjudgment motion vests the appellate court with jurisdiction.” Lindmark, 381 Ill. App. 3d
at 652, 887 N.E.2d at 618.
¶ 13 We recognize in People v. Haldorson, 395 Ill. App. 3d 980, 982-83, 918 N.E.2d 1280,
1282 (2009), this court held the revestment doctrine did not apply; however, this holding was
limited to postplea motions under Illinois Supreme Court Rule 604(d) (eff. July 1, 2006).
Relying on People v. Flowers, 208 Ill. 2d 291, 303, 802 N.E.2d 1174, 1181 (2003), we noted,
“when Rule 604(d)’s 30-day period has expired and the trial court has not extended the
limitation period, the trial court is divested of jurisdiction to entertain a defendant’s postplea
motion under Rule 604(d).” Haldorson, 395 Ill. App. 3d at 983, 918 N.E.2d at 1283. Further,
we noted “[o]ur supreme court has never recognized an exception similar to revestment to
the 30-day language in Rule 604(d).” Haldorson, 395 Ill. App. 3d at 984, 918 N.E.2d at
1283.
¶ 14 In this case, we are not presented with a postplea motion under Rule 604(d) as we were
in Haldorson. Although defendant originally pleaded guilty pursuant to a fully negotiated
plea agreement, he was later found to be in violation of probation by the trial court and
resentenced. Thus, defendant’s motion for reduction of sentence is more akin to an appeal
following a jury or bench trial under Rule 606 than a guilty plea under Rule 604(d).
¶ 15 Here, we find the three requirements of the revestment doctrine have been met. First, the
trial court had general, personal, and subject-matter jurisdiction over defendant’s case.
Second, at the December 17, 2010, hearing on defendant’s motion to reduce sentence, the
State actively participated without objection. Third, the proceedings were inconsistent with
the prior judgment, i.e., defendant had been resentenced to four years in prison and was
requesting a reduction of sentence. As all requirements for revestment were met in
defendant’s case, the trial court had jurisdiction over defendant’s motion for reduction of
sentence, and, thus, this court has jurisdiction over defendant’s appeal from the trial court’s
denial of that motion. Accordingly, we will address the merits of defendant’s appeal.
¶ 16 The propriety of a trial court’s imposition of fines and fees raises a question of statutory
interpretation and is reviewed de novo. People v. Price, 375 Ill. App. 3d 684, 697, 873
N.E.2d 453, 465 (2007). A sentence that does not conform to a statutory requirement is void,
is not subject to waiver, and may be attacked at any time. People v. Thompson, 209 Ill. 2d
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19, 27, 805 N.E.2d 1200, 1204-05 (2004).
¶ 17 In this case, defendant asserts that the McLean County circuit court clerk lacked authority
to impose the $10 drug-court (55 ILCS 5/5-1101(d-5) (West 2008)) and $15 children’s-
advocacy-center (55 ILCS 5/5-1101(f-5) (West 2008)) fines and, thus, these assessments
must be vacated. Alternatively, defendant contends the $15 children’s-advocacy-center fine
must be vacated because when defendant committed the instant offense, the statutory
provision authorizing this fine was not in effect.
¶ 18 During the November 4, 2008, sentencing hearing, the trial court imposed a “$300.00
fine, appropriate surcharge amount, [Violent Crime Victim Assistance] VCVA, $300.00
contribution to the Crime Detection Network, and court costs.” On the same day, a “notice
to party” was prepared by the McLean County circuit clerk that included a $15 children’s-
advocacy-center fee and a $10 drug-court fee. During the July 8, 2010, resentencing hearing,
the court imposed “[m]andatory financial consequences–or simply the reincorporation of the
previous ordered financial consequences payable within two years of release.” (Emphasis
added.) On the same day, the supplemental sentencing judgment signed by the judge shows
check marks next to “Drug Court Fee” and “Child Advocacy Center Fee.” The judge also
noted on this order, “This order simply reincorporated fines [and] costs already ordered.”
(Emphasis added.) A “notice to party” was also prepared on the same date that included a
$15 children’s-advocacy-center fee and a $10 drug-court fee.
¶ 19 We note that while referred to as “fees,” the children’s-advocacy-center and drug-court
fees are actually fines. People v. Isaacson, 409 Ill. App. 3d 1079, 1085, 950 N.E.2d 1183,
1190 (2011).
¶ 20 Based on the record, we agree with defendant that the $15 children’s-advocacy-center fee
and a $10 drug-court fee were imposed by the McLean County circuit clerk rather than the
trial court. Our review of the record fails to reveal a supplemental sentencing order, signed
by the judge, from the November 2008 sentencing. Further, the trial court did not orally
impose these fines during that November 2008 sentencing hearing. During the July 2010
resentencing hearing, the trial court simply reimposed previously ordered financial
consequences. The children’s-advocacy-center and drug-court fines were not previously
ordered by the trial court, and, thus, even though the judge signed a supplemental sentencing
judgment in July 2010 that included these fines, the fines cannot be attributed to having been
imposed by the court. These fines were improperly imposed by the circuit clerk and must be
vacated.
¶ 21 However, McLean County has enacted ordinances that provide for mandatory
assessments of a $10 fee for drug court and a $15 fee for children’s advocacy center, and this
court may reimpose mandatory fines. People v. Folks, 406 Ill. App. 3d 300, 305-06, 943
N.E.2d 1129, 1132-33 (2010). We do so in the case of the drug-court fine, but decline to
reimpose the children’s-advocacy-center fine as it was not authorized by statute at the time
of the instant offense. See 55 ILCS 5/5-1101(f-5) (West 2008) (children’s-advocacy-center
assessment section became effective on January 1, 2008); see also People v. Maxwell, 2011
IL App 4th 100434, ¶ 105, 961 N.E.2d 964 (“ ‘The constitutional prohibition against ex post
facto laws prevents the punishment for an offense being increased by an amendatory act
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taking effect after the offense has been committed.’ ” (quoting People v. Bosley, 197 Ill. App.
3d 215, 220, 553 N.E.2d 1187, 1191 (1990))). Accordingly, we vacate the circuit clerk’s
fines and remand with directions that the trial court amend its sentencing judgment to reflect
the imposition of the $10 drug-court fine.
¶ 22 Last, defendant argues he is entitled to a $5 credit against his fines for each day he spent
in pretrial custody. The State concedes defendant is entitled to a credit up to $915, which
may be applied to any fines assessed against him. See 725 ILCS 5/110-14 (West 2008). We
accept the State’s concession.
¶ 23 Sentence credit against a fine based on time served is governed by section 110-14(a) of
the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14(a) (West 2008)), which
provides in relevant part:
“(a) Any 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. However, in no case
shall the amount so allowed or credited exceed the amount of the fine.”
Such credit may only be applied to offset fines, not fees. People v. Jones, 223 Ill. 2d 569,
580, 861 N.E.2d 967, 974 (2006).
¶ 24 The record reflects defendant was in custody a total of 183 days, that is, from October
18 to October 20, 2007; November 5, 2008, through April 30, 2009; and April 7 to April 9,
2010. The trial court awarded defendant credit for time served during the July 2010
resentencing hearing. Defendant is also entitled to a credit up to $915, which may be applied
to any fines assessed against him. 725 ILCS 5/110-14 (West 2008). These fines include the
$10 drug-court fine and the $300 crime-detection-network fee (730 ILCS 5/5-6-3(b)(13)
(West 2008)). See People v. Littlejohn, 338 Ill. App. 3d 281, 283-84, 788 N.E.2d 339, 341
(2003) (fines imposed under section 5-6-3(b)(13) of the Unified Code of Corrections more
closely resemble a punishment and are fines). Thus, we remand for issuance of an amended
sentencing judgment reflecting this credit.
¶ 25 In sum, we vacate the $10 drug-court and $15 children’s-advocacy-center assessments
imposed by the circuit clerk and remand with directions that the trial court amend its
sentencing order (1) to reflect the imposition of the drug-court fine only and (2) to reflect
defendant’s credit of up to $915 toward his fines. As part of our judgment, since the State
successfully defended a portion of this appeal, we award the State its $50 statutory
assessment against defendant as costs of this appeal. See People v. Smith, 133 Ill. App. 3d
613, 620, 479 N.E.2d 328, 333 (1985) (citing People v. Nicholls, 71 Ill. 2d 166, 178, 374
N.E.2d 194, 199 (1978)).
¶ 26 Affirmed in part as modified, vacated in part, and cause remanded with directions.
¶ 27 JUSTICE COOK, specially concurring.
¶ 28 I concur, but I stand by my dissent in Smith, 2011 IL App (4th) 100430, 960 N.E.2d 595
(Cook, J., dissenting).
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