People v. Mitchell ( 2009 )

NO. 4-08-0401 Filed 10/15/09
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
CHARLES K. MITCHELL, ) No. 07CF185
Defendant-Appellant. )
) Honorable
) Timothy J. Steadman,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In December 2007, defendant, Charles K. Mitchell,
pleaded guilty to burglary. In January 2008, the trial court
sentenced defendant to a 13-year prison term. Defendant appeals,
arguing (1) the court erred when it imposed (a) a $4 traffic and
criminal conviction surcharge, (b) a $10 anticrime fee, and (c) a
$25 Violent Crime Victims Assistance Fund penalty, and (2) the
court abused its discretion in sentencing. We affirm in part,
vacate in part, and remand with directions.
I. BACKGROUND
In February 2007, the State charged defendant with one
count of burglary, a Class 2 felony (720 ILCS 5/19-1(a), (b)
(West 2006)), alleging he entered a vacant home with the intent
to commit a theft therein. Because defendant had two prior Class
2 felony convictions, the trial court sentenced him as a Class X
offender with a sentencing range of 6 to 30 years' imprisonment.
730 ILCS 5/5-5-3(c)(8), 5-8-1(a)(3) (West 2006).
In December 2007, defendant entered an open, nonnegot-
iated guilty plea. The State's factual basis for the plea
disclosed that in October 2006, someone broke into a vacant home
owned by Timothy Davis and stole a circular saw, a jigsaw, and a
Sawzall. Blood was found in the home, which police believed came
from the intruder. Police sent a blood sample to the Illinois
State Police crime laboratory for processing. The Illinois
Combined DNA Index System (CODIS) matched the sample taken from
the home to a sample previously taken from defendant. A confirm-
atory sample taken directly from defendant also matched the blood
found in the home.
In January 2008, the trial court held defendant's
sentencing hearing. The State called Decatur police officer
Joshua Sheets, who testified in September 2005 he found cannabis
and crack cocaine in defendant's vehicle during a traffic stop.
The State later charged defendant with possession of a controlled
substance in Macon County case No. 2005-CF-1389, which was still
pending at the time of the sentencing hearing.
The State also called Decatur police officer Troy
Phares, who testified regarding another pending felony charge
against defendant for resisting arrest, Macon County case No.
2007-CF-1321. Officer Phares testified that while on patrol in
August 2007, he saw defendant walking down the street. Officer
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Phares knew defendant on sight due to prior interactions and also
knew defendant had an outstanding felony warrant for burglary.
As Officer Phares approached defendant to arrest him, defendant
saw Officer Phares and ran away. During the ensuing foot chase,
Officer Phares sustained a sprained knee and sprained forearm
after running into a barbed-wire fence. Defendant was able to
escape after Officer Phares's injury.
Defendant testified he was a drug addict and had been
since the age of 20. (Defendant was 44 years old at the time of
sentencing.) Defendant further testified he only committed
crimes to support his drug habit. Defendant sought treatment as
part of court-ordered probation in the 1990s and stayed drug free
for six years afterward. However, defendant relapsed around
2004. Defendant indicated his desire to get drug treatment in
prison and regain sobriety.
During defendant's allocution, he denied Officer
Sheets's testimony that marijuana and crack cocaine were found
during the traffic stop resulting in case No. 2005-CF-1389.
The trial court also examined defendant's presentence
investigation report (PSI), which indicates defendant was diag-
nosed as schizophrenic around 20 years ago. Defendant denied
taking medication or receiving treatment at the time of his
arrest. The PSI shows defendant has seven children, who, at the
time of sentencing, ranged in age from 24 years old to 1 month
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old. With respect to defendant's drug use, the PSI indicates he
began using marijuana and crack cocaine at 17.
The PSI shows defendant has the following felony
convictions: (1) retail theft from September 1987, (2) violation
of bail bond from October 1988, (3) robbery from April 1990, (4)
forgery from March 1992, (5) retail theft from March 1992, (6)
residential burglary from March 1992, (7) bringing contraband
into a penal institution from May 1993, (8) obstruction of
justice from March 1999, (9) two convictions for possession of a
controlled substance from May 1999, and (10) burglary from
October 2001. Defendant was sentenced to 10 separate prison
terms for those convictions.
The PSI concludes that defendant "scored in the maximum
range of risk and needs. [Defendant] received his score as a
result of his criminal history, unemployment status, having pro-
criminal associations, self-reported substance abuse, and self-
reported mental[-]health problem."
The State argued for a sentence of 17 years based upon
the aggravation evidence produced at sentencing, as well as
defendant's criminal history. Defense counsel recommended a
minimum sentence of six years due to defendant's drug problem and
his willingness to seek treatment for that problem.
As stated, the trial court sentenced defendant to a 13-
year prison term and imposed court costs, fines, and fees. In
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its oral pronouncement, the court stated its sentence was based
upon the need to protect the public. In aggravation, the court
noted defendant's long-standing drug addiction, failure to seek
treatment for schizophrenia, and significant criminal history.
The court also stated that it had considered defendant's score in
the "'maximum range of risks and needs'" contained in the PSI.
In mitigation, the court noted defendant's recent criminal
history was sparse and he had admitted guilt.
The trial court made three separate rulings regarding
the imposition of fees, costs, and fines. In its oral
pronouncement, the trial court imposed "court costs." In its
written sentencing judgment, the trial court imposed both fees
and costs. The docket entry entered on the date of defendant's
sentencing states defendant was ordered to pay "court costs" but
also ordered that his bond satisfy "fines, court costs, restitu-
tion, and [attorney] fees."
In May 2008, defendant filed a motion to reconsider
sentence, which the trial court denied.
This appeal followed.
II. ANALYSIS
Defendant argues that the trial court erred when it
imposed (1) fees not permitted by statute and (2) a 13-year
prison sentence.
A. Defendant's Fees and Fines
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Defendant argues the trial court erred when it imposed
(1) a $4 traffic and criminal conviction surcharge, (2) a $10
anticrime fee, and (3) a $25 violent crime fee.
1. Traffic and Criminal Conviction Surcharge
Defendant argues the $4 penalty is a fine and was
improper because it was imposed pursuant to subsection 5-9-1(c-9)
of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-
9-1(c-9) (West 2004)), which the legislature repealed prior to
both commission of the offense and sentencing. The State con-
cedes the court had no authority to impose the traffic and
criminal conviction surcharge because the legislature repealed
the fee in 2005. See 730 ILCS 5/5-9-1(c-9) (West 2006) (leaving
subsection (c-9) blank). We agree that the $4 penalty must be
vacated, although not for the reason defendant proposes and the
State accepts.
We first note that if the $4 penalty was imposed
pursuant to subsection 5-9-1(c-9), its imposition was improper
and requires vacatur. However, the clerk imposed the $4 traffic
and criminal conviction surcharge in this case pursuant to
subsection 5-9-1(c) of the Unified Code (730 ILCS 5/5-9-1(c)
(West 2006)), a permissible basis for the penalty at the time of
defendant's commission of the offense and sentencing. A brief
description of the various amendments of section 5-9-1 of the
Unified Code (730 ILCS 5/5-9-1 (West 2006)) is necessary to
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explain our holding.
Public Act 93-32 created subsection 5-9-1(c-9) (730
ILCS 5/5-9-1(c-9) (West 2004)), which went into effect in June
2003. Pub. Act 93-32, §50-75, eff. June 20, 2003 (2003 Ill.
Legis Serv. 400, 429 (West)). Subsection 5-9-1(c-9) required the
trial court to impose a $5 (formerly $4) penalty on the defendant
whenever it imposed sentence for a criminal or traffic offense,
except sentences related to parking and registration offenses.
730 ILCS 5/5-9-1(c-9) (West 2004). In December 2003, for reasons
not relevant to the resolution of this case, the Supreme Court
Rules Committee determined the penalty imposed under subsection
5-9-1(c-9) could not be collected without violating Supreme Court
Rule 529. 210 Ill. 2d R. 529, Committee Comments at ccxxxvii.
In response, the legislature enacted Public Act 94-652, which
repealed subsection 5-9-1(c-9) (730 ILCS 5/5-9-1(c-9) (West
2004)) and increased the penalty imposed in subsection 5-9-1(c)
(730 ILCS 5/5-9-1(c) (West Supp. 2005)) from the then $5 for each
$40, or portion thereof, of penalties imposed to $9 for each $40,
or portion thereof, of penalties imposed. Pub. Act 94-652, §5,
eff. August 22, 2005 (2005 Ill. Legis. Serv. 3345, 3346-47
(West)). During the debate in the House of Representatives on
Public Act 94-652, Representative Lyons, the legislation's
sponsor, stated the following:
"[Public Act 94-652] amends the Unified Code
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*** pertaining to the collection and distri-
bution of money[] into the [t]raffic and
[c]riminal [c]onviction [s]urcharge [f]und.
The [t]raffic and [c]riminal [c]onviction
[s]urcharge [f]und is used to pay for the
training of the [State's 40,000] law enforce-
ment and correctional officers. [Public Act
94-652] remedies language which was origi-
nally added [two] years ago in the Budget
Implementation Act to collect an additional
$4 assessment on all traffic and criminal
convictions in which a fine is imposed. The
[s]upreme [c]ourt subsequently ruled that the
language of the provision *** was contradic-
tory to Supreme Court Rule 529 [(210 Ill. 2d
R. 529)]. As such, the additional $4 *** is
not being collected as anticipated. [Public
Act 94-652] corrects that." 94th Ill. Gen.
Assem., House Proceedings, May 30, 2005, at
14 (statement of Representative Lyons).
In June 2006, Public Act 94-987 again amended section
5-9-1(c), increasing the penalty from $9 to $10 for every $40 of
penalties imposed and appropriating $1 toward the law enforcement
camera grant fund for each $40 collected. Pub. Act 94-987, §60,
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eff. June 30, 2006 (2006 Ill. Legis. Serv. 2286, 2287-88 (West)).
The only information in the case sub judice that this
court possesses regarding the $4 penalty is a record sheet from
the county clerk's office made after imposition and payment of
defendant's penalties. The record sheet does not state the
statutory basis for the $4 penalty. The record sheet merely
shows a $4 penalty imposed under the heading "T&CCSF," a somewhat
unwieldy acronym for Traffic and Criminal Conviction Surcharge
Fund. The appellant bears the burden to present a record on
appeal sufficient to support his claims of error, and this court
will resolve any doubts arising from an incomplete record against
the appellant. People v. Lopez, 229 Ill. 2d 322, 344, 892 N.E.2d
1047, 1060 (2008). Defendant has not produced any evidence
showing the clerk imposed the $4 penalty pursuant to the now-
defunct subsection 5-9-1(c-9) as he argues. Subsection 5-9-1(c-
9) was repealed approximately 14 months before defendant's
commission of the burglary and over two years before his sentenc-
ing hearing. Because nothing in the record shows the reasoning
for imposing a $4 penalty, this court must resolve the ambiguity
against the appellant. Accordingly, we find that the penalty was
imposed pursuant to subsection 5-9-1(c) (730 ILCS 5/5-9-1(c)
(West 2006)).
Nevertheless, the $4 penalty is void. A trial court's
sentence is void where it is made without "the power to render
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the particular judgment or sentence" (People v. Davis, 156 Ill.
2d 149, 156, 619 N.E.2d 750, 754 (1993)) or "does not conform to
a statutory requirement" (People v. Arna, 168 Ill. 2d 107, 113,
658 N.E.2d 445, 448 (1995)). Both the imposition of a $4 penalty
and the trial court's abdication of its responsibility to impose
the proper penalty were void acts, taken without jurisdiction.
Subsection 5-9-1(c) specifies that the penalty "shall
be assessed by the court imposing the fine and shall be collected
by the [c]ircuit [c]lerk." (Emphasis added.) 730 ILCS 5/5-9-
1(c) (West 2006). The court here never referenced a specific
penalty or amount at any point during sentencing or afterward.
The court's oral sentencing pronouncement, written judgment, and
docket entry all fail to mention the proper amount of the penalty
to be levied under subsection 5-9-1(c). Instead, the court
permitted the clerk to impose a penalty that the court had the
duty to impose. Courts are powerless to delegate responsibility
to impose a sentence where the plain language of the statute
requires the court to act. A fortiori, the clerk's imposition of
the penalty and the court's implied ratification thereof were
both void acts because the court lacked the power to render
judgment in that manner and the process failed to conform to the
statutory requirements of subsection 5-9-1(c). See City of
Chicago v. Roman, 184 Ill. 2d 504, 510, 705 N.E.2d 81, 85 (1998)
(defining void judgment as one court lacked the power to make).
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As a result, the $4 traffic and criminal conviction surcharge
must be vacated on that basis.
Further, the imposition of a $4 penalty, rather than a
$5 penalty, was a void act. A court "exceeds its authority if it
orders a lesser sentence than what the statute mandates." City
of Chicago, 184 Ill. 2d at 510, 705 N.E.2d at 85. Subsection 5-
9-1(c) (730 ILCS 5/5-9-1(c) (West 2006)) states that the trial
court "shall" impose a $10 penalty, or portion thereof, for each
$40 in penalties, or portion thereof, that the court imposes.
See also People v. Reed, 177 Ill. 2d 389, 393, 686 N.E.2d 584,
586 (1997) ("'shall' is generally considered to express a manda-
tory reading"). The only penalty the trial court itself imposed
was a $20 penalty pursuant to the Violent Crime Victims Assis-
tance Act. See 725 ILCS 240/10(c)(2) (West 2006) (permitting $20
penalty only when the trial court has imposed no other penalties
on the defendant). Accordingly, subsection 5-9-1(c) required the
court to impose a $5 penalty on defendant.
Because the penalty imposed failed to comply with the
requirements of subsection 5-9-1(c), the penalty is void. We
therefore vacate the $4 penalty and direct the trial court to
impose a penalty in compliance with subsection 5-9-1(c) on
remand. This court recognizes the difficulty the trial court
faces when imposing the morass of penalties mandated by the
legislature and constantly amended thereby. However, each
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courtroom is mandated to have a clerk of the court to aid the
judge in just these types of situations. 705 ILCS 105/13 (West
2008). "The clerks shall attend the sessions of their respective
courts, preserve all the files and papers thereof, make, keep[,]
and preserve complete records of all the proceedings and determi-
nations thereof, except in cases otherwise provided by law, and
do and perform all other duties pertaining to their offices, as
may be required by law or the rules and orders of their courts
respectively." 705 ILCS 105/13 (West 2008).
2. Anticrime and Violent Crime Fees
The State does not oppose the defendant's argument that
the trial court erred when it imposed a $10 anticrime fee. The
State concedes that the anticrime fee may not be imposed where
the trial court imposes a sentence of imprisonment. People v.
Beler, 327 Ill. App. 3d 829, 837, 763 N.E.2d 925, 931 (2002).
The State's concession is accepted and the anticrime fee is
vacated.
Defendant has withdrawn his argument that the trial
court erred when it imposed a $25 violent crime fee, as the
record shows the court imposed a $20 fee in accordance with the
Violent Crime Victims Assistance Act (725 ILCS 240/10(c)(2) (West
2006)).
B. Abuse of Discretion
Defendant argues his 13-year prison term was dispropor-
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tionate to the seriousness of the offense, given its nonviolent
nature.
A sentence within statutory guidelines will only be
disturbed on review if the trial court abused its discretion.
People v. Bridgewater, 388 Ill. App. 3d 787, 797, 904 N.E.2d 171,
179 (2009). The trial court receives substantial deference when
sentencing a criminal defendant but must still impose a sentence
based upon "the seriousness of the offense and with the objective
of restoring the offender to useful citizenship." Ill. Const.
1970, art. I, §11. In determining an appropriate sentence, the
trial court must consider the facts of the offense, as well as
the defendant's "credibility, demeanor, general moral character,
mentality, social environment, habits, and age." People v.
Perruquet, 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884 (1977).
The record reveals the trial court did not abuse its
discretion when it sentenced defendant. Defendant has a signifi-
cant criminal history, with 11 felony convictions since 1987.
This is defendant's third conviction for burglary, crimes which
he committed to support his addiction to crack cocaine. Defen-
dant committed this crime while free on bond in No. 2005-CF-1389,
after eluding Officer Phares, resulting in injury, during an
attempt to arrest defendant on a felony warrant. Defendant
scored in the "maximum range" for risks and needs due to his
significant criminal history, long-term drug addiction, criminal
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associations, and mental-health problems. The court's oral
pronouncement at sentencing reveals the court considered defen-
dant a threat to commit more crimes based upon the evidence
presented.
Moreover, nothing in the record of the sentencing
hearing indicates the trial court considered defendant's convic-
tion a crime of violence. Where the record shows the trial court
heard evidence in mitigation, this court will presume it consid-
ered the evidence, absent contrary evidence in the record.
People v. Shaw, 351 Ill. App. 3d 1087, 1093, 815 N.E.2d 469, 474
(2004). Accordingly, we presume the court considered the nonvio-
lent nature of defendant's offense in determining the appropriate
sentence to impose.
The trial court did not abuse its discretion when it
sentenced defendant to a 13-year prison term.
III. CONCLUSION
For the reasons stated, we affirm in part, vacate in
part, and remand with directions for the trial court to issue an
amended sentencing judgment consistent with this opinion and
reflecting vacatur of the $10 anticrime fee. Because the State
has in part successfully defended a portion of the criminal
judgment, we award the State its $50 statutory assessment as
costs of this appeal. See People v. Leach, 385 Ill. App. 3d 215,
223, 898 N.E.2d 696, 703 (2008).
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Affirmed in part and vacated in part; cause remanded
with directions.
McCULLOUGH, P.J., and KNECHT, J., concur
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