People v. Larue , 2014 IL App (4th) 120595 ( 2014 )

FILED
2014 IL App (4th) 120595 May 14, 2014
Carla Bender
NO. 4-12-0595 th
4 District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
TERRELL T. LARUE, ) No. 11CF2036
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion.
Presiding Justice Appleton and Justice Turner concurred in the judgment and
opinion.
OPINION
¶1 On December 13, 2011, the State charged defendant, Terrell T. Larue, with (1)
attempt (armed robbery) (720 ILCS 5/8-4(a), 18-2(a) (West 2010)) (count I); (2) residential
burglary (720 ILCS 5/19-3 (West 2010)) (count II); and (3) aggravated unlawful use of a weapon
(AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)) (count III). Police arrested
defendant on December 12, 2011, and he remained in custody thereafter. On April 27, 2012,
over 120 days after defendant's arrest date, the State also charged defendant with unlawful
possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2010)).
¶2 Defendant's jury trial began on April 30, 2012, and continued on May 2, 2012.
The State elected to proceed only on the residential burglary and UPWF counts. Following the
trial, the jury found defendant guilty of both charges. In June 2012, the trial court sentenced
defendant to consecutive sentences of 10 years in prison for UPWF and 15 years in prison for
residential burglary, ordering defendant to pay the "costs of prosecution herein." Following
sentencing, the circuit clerk imposed various fines and fees.
¶3 Defendant appeals, arguing (1) his conviction for UPWF must be vacated because
the State filed the charge after the 120-day speedy-trial term had run on the original charges; (2)
his 10-year sentence for UPWF must be vacated because the sentence violates the proportionate-
penalties clause of the Illinois Constitution; (3) his 10-year sentence for UPWF must be vacated
because it violates the due process clause of the Illinois Constitution and the equal protection
clauses of both the Illinois and United States Constitutions; and (4) the circuit court clerk
imposed six void fines and seven duplicate fees that must be vacated.
¶4 We affirm in part, vacate in part, and remand with directions.
¶5 I. BACKGROUND
¶6 On December 13, 2011, the State charged defendant with (1) attempt (armed
robbery) (720 ILCS 5/8-4(a), 18-2(a) (West 2010)) (count I); (2) residential burglary (720 ILCS
5/19-3 (West 2010)) (count II); and (3) AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West
2010)) (count III), a Class 2 felony carrying a maximum prison sentence of seven years.
Defendant was arrested on December 12, 2011, and remained in custody until his trial. On
February 7, 2012, the State filed a motion for continuance pursuant to section 103-5(c) of the
Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(c) (West 2010)), requesting additional
time to obtain defendant's deoxyribonucleic acid (DNA) sample. The trial court granted the
State's motion over defendant's objection. At the next court date, March 20, 2012, the court set
defendant's trial for April 9, 2012. On April 3, 2012, the court allowed an agreed motion to
vacate the trial setting because defendant's attorney was "under a doctor's care." Thereafter, the
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court set defendant's trial for April 30, 2012. On April 27, 2012, three days before trial, the State
charged defendant with UPWF, a Class 3 felony carrying a possible 2- to 10-year prison sentence
(720 ILCS 5/24-1.1(a), (e) (West 2010)) (count IV).
¶7 A. Defendant's Trial
¶8 On April 30, 2012, the parties appeared for defendant's jury trial. Prior to the
trial's commencement, the State dismissed counts I and III. Thereafter, the trial commenced. A
summary of the evidence presented is as follows.
¶9 Timothy McNaught, an Urbana police officer, testified that on December 12,
2011, he was dispatched to apartment 217 of 904 Broadway. When he arrived to apartment 217,
McNaught saw the door was ajar and showed obvious signs of having been forced open. The
apartment was empty. McNaught then started knocking on other apartment doors, and noticed
the door to apartment 218 opened and shut quickly. Police ordered the occupants of 218 to come
out, and Erik Kirk, Sherrick Cooper, Herbert Shah, Darrell Hubbard, and defendant complied.
After the men were handcuffed, patted down, and ushered downstairs, McNaught entered
apartment 218, which belonged to Jamie Calhoun, the mother of defendant's child. During a
protective sweep, McNaught discovered a gun in a utilities closet next to the furnace. McNaught
left the apartment to obtain a search warrant.
¶ 10 Matt Quinley, a detective with the Urbana police department, testified he took
part in executing the search warrant at apartment 218. During the search, officers recovered a
32-inch flat screen television (TV). Denee Thomas, who lived in apartment 217, later verified
the TV as hers, using a remote control that was still in her apartment to turn it on. The officers
also found an Xbox and "a brand new pair of Nike Air Jordans" underneath the kitchen sink.
Mathew Vien, an Illinois State Police crime scene investigator, testified he took photographs
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inside apartment 218 of (1) a pair of size 10 Nike shoes, and (2) two 9-millimeter caliber
handguns found on top of the furnace under a T-shirt. One of the guns was a Browning 9-
millimeter semiautomatic handgun with the hammer cocked. When Vien unloaded the gun, it
contained one round in the chamber and a magazine containing several rounds. The other gun
that the officers recovered from the top of the furnace area was a Hi-Point 9-millimeter
semiautomatic pistol. That gun also contained one round in the chamber and a magazine
containing several rounds.
¶ 11 Brian Willfong, a police officer with the City of Urbana, testified he transported
defendant from the 904 Broadway apartments to the Urbana police department. At the station,
Willfong searched defendant and found $1,300 in defendant's left pants pocket. Earlier that day,
officers had conducted a traffic stop outside the 904 Broadway apartments, during which they
found $1,300 on Kaurente Pettigrew, which they later returned. Hubbard, Kirk, Cooper, Shah,
and defendant all watched the officers stop Pettigrew. Pettigrew then went to Thomas's
apartment. According to Hubbard's testimony, the men then decided to break into Thomas's
apartment to "get some money." Hubbard said he and the four other men then returned to
Thomas's apartment, with Hubbard and Shah breaking the apartment door by kicking it in.
¶ 12 David Smysor, an investigator with the Urbana police department, testified he
obtained a recorded statement from defendant. The trial court allowed the State to play the
recorded statement and to provide the jury with copies of a transcript of the statement. In his
statement, defendant denied participating in the robbery and denied that either of the recovered
guns belonged to him. He said he remained in Calhoun's apartment the entire time of the
robbery and only knew the details of the robbery based on what the other men told him.
Defendant saw Hubbard return from Thomas's apartment with a TV and a game system.
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Defendant said the longer gun that police recovered belonged to Kirk and the shorter one
belonged to Cooper. He acknowledged holding Kirk's gun earlier in the day but denied ever
handling Cooper's gun. Defendant said he received the $1,300 police found on him from his
mom and other family members.
¶ 13 Hubbard first testified he saw only one gun on the night of the robbery, the gun he
pled guilty to possessing but did not own. However, he then also said he saw two 9-millimeter
guns in Calhoun's apartment, a brown and black one and a black one. Hubbard identified the
brown and black gun in court as the one Cooper had. He denied recognizing the gun depicted in
People's exhibit No. 32, the Hi-Point 9-millimeter semiautomatic pistol. He said the black gun
he remembered seeing was "just on the ground" and had been "passed around." Specifically, he
said Kirk touched it, Cooper "probably" touched it, and he did not know whether defendant or
Shah touched it. Hubbard testified that when the men went to Thomas's apartment, one of them
"probably could have had" a gun but Hubbard did not recall seeing any. Hubbard later denied
the men passed around the guns in Calhoun's apartment. On cross-examination, Hubbard said
the gun he had was a BB gun. Hubbard denied touching either of the guns depicted in the State's
exhibits, and he said none of the men touched his BB gun.
¶ 14 Before pleading guilty, Hubbard had given a taped statement to Quinley, but he
testified he did not remember telling Quinley defendant had the gun with the wooden handle. In
his recorded statement, which was played for the jury, Hubbard told Quinley that Kirk, Cooper,
and defendant each had a gun. He admitted touching one of the guns on an earlier date. He also
said that, earlier in the evening, defendant said they needed money and needed "a lick."
¶ 15 Correctional officers Shane McPheron and James Spence each took defendant's
fingerprints. John Carnes, an expert in fingerprint examination, testified he could not find any
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fingerprints suitable for comparison on the guns, shoes, shoebox, or Xbox that officers had
recovered from apartment 218. Carnes did, however, find eight fingerprints suitable for
comparison on the TV. Carnes opined that six of the prints belonged to defendant.
¶ 16 Following the witnesses' testimony, the trial court took judicial notice of
defendant's prior felony conviction of unlawful possession of a controlled substance. Thereafter,
the jury found defendant guilty of UPWF and residential burglary.
¶ 17 B. Sentencing Hearing
¶ 18 In May 2012, defendant filed a motion for a new trial or, in the alternative, for
judgment n.o.v. At a June 2012 hearing, the trial court denied defendant's motion and proceeded
to sentencing. Correctional officers at the county jail testified (1) heroin was found in
defendant's cell the day after his arrest; (2) defendant unbolted a stool and used a portion of the
stool to dig into concrete and caulking in an attempt to escape; (3) defendant threatened to shoot
one of the guards in the mouth; and (4) defendant flooded his cell by stuffing a blanket into the
toilet and flushing the toilet. Defendant made a statement, apologizing for the damage to
Thomas's home.
¶ 19 The trial court sentenced defendant to 10 years in prison for UPWF and 15 years
in prison for residential burglary, ordering the sentences to run consecutively. The court's
written sentencing order also required defendant to "pay costs of prosecution herein." In
announcing defendant's sentence, the court found defendant's young age to be the only mitigating
factor present. In aggravation, the court noted (1) defendant had a prior history of delinquency
and criminal activity, and (2) the court needed to deter other individuals from committing a
similar crime. The court also pointed out that correctional officers testified defendant brought
heroin into the jail, tried to escape, and threatened to shoot an officer in the mouth. A computer
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printout reveals that, at some point, the circuit clerk imposed various assessments for each of
defendant's two convictions, including the following: (1) a $30 juvenile expungement fine (730
ILCS 5/5-9-1.17(a) (West 2010)), (2) a $10 "Traffic/Criminal" fine surcharge (730 ILCS 5/5-9-
1(c) (West 2010)), (3) a $10 State Police operations fine (705 ILCS 105/27.3a (West 2010)), (4)
a $5 document storage fee, (5) a $10 automation fee, (6) a $100 circuit clerk fee, (7) a $25 court
security fee, (8) a $10 arrestee's medical assessment, (9) a $50 court finance fee, and (10) a $40
State's Attorney fee. This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant argues (1) his conviction for UPWF must be vacated
because the State filed the charge after the 120-day speedy-trial term had run on the original
charges; (2) his 10-year sentence for UPWF must be vacated because the sentence violates the
proportionate-penalties clause of the Illinois Constitution; (3) his 10-year sentence for UPWF
must be vacated because it violates the due process clause of the Illinois Constitution and the
equal protection clauses of the Illinois and United States Constitutions; and (4) the circuit court
clerk imposed six void fines and seven duplicate fines.
¶ 22 Following briefing in this case, we ordered the parties to submit supplemental
briefs discussing the effect, if any, that the supreme court's decision in People v. Aguilar, 2013
IL 112116, had on defendant's arguments. The parties submitted briefs as requested, agreeing
that Aguilar has no effect on defendant's arguments because, although the supreme court initially
found the entire AUUW statute unconstitutional in its original Aguilar decision, it subsequently
modified its opinion upon denial of rehearing to make clear that it was finding only the Class 4
felony form of the AUUW statute unconstitutional. We agree with both parties that Aguilar, as
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modified upon denial of rehearing, has no effect on defendant's arguments. Accordingly, we turn
to defendant's arguments.
¶ 23 A. Defendant's Speedy-Trial Claim
¶ 24 Defendant first asserts his conviction for UPWF (count IV) must be vacated
because the State filed the charge, which was based on the same conduct as AUUW (count III),
after the 120-day speedy-trial term had run on the original charges. Defendant acknowledges
that he did not object to the UPWF count at trial but argues the speedy-trial issue should be
reviewed (1) under the plain-error doctrine or (2) because his attorney was ineffective for failing
to object to the additional charge. Whether reviewing the issue for plain error or to determine
whether counsel was ineffective, we must first determine whether defendant's speedy-trial right
was violated. People v. Mays, 2012 IL App (4th) 090840, ¶ 42, 980 N.E.2d 166.
¶ 25 A defendant possesses both constitutional and statutory rights to a speedy trial.
People v. Phipps, 238 Ill. 2d 54, 65, 933 N.E.2d 1186, 1193 (2010). In this case, defendant
asserts only that his statutory right to a speedy trial was violated. Illinois's speedy-trial statute
provides that a defendant in custody must be brought to trial within 120 days of the day he was
brought into custody. 725 ILCS 5/103-5(a) (West 2010). The speedy-trial statute tolls during
any period of delay occasioned by the defendant. People v. Woodrum, 223 Ill. 2d 286, 299, 860
N.E.2d 259, 269 (2006). A defendant not tried within the statutory period must be released from
custody and have the charges against him dismissed. 725 ILCS 5/103-5(d) (West 2010); People
v. Hunter, 2013 IL 114100, ¶ 10, 986 N.E.2d 1185.
¶ 26 Pursuant to the compulsory joinder statute (720 ILCS 5/3-3(b) (West 2010)), the
State must prosecute in a single criminal case all known offenses within the jurisdiction of a
single court that " 'are based on the same act.' " Hunter, 2013 IL 114100, ¶ 10, 986 N.E.2d 1185
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(quoting 720 ILCS 5/3-3(b) (West 2008)). The Illinois Supreme Court has explained the
relationship between the compulsory joinder statute and the speedy-trial statute as follows.
"Where new and additional charges arise from the same facts as did the original charges and the
State had knowledge of these facts at the commencement of the prosecution, the time within
which trial is to begin on the new and additional charges is subject to the same statutory
limitation that is applied to the original charges." (Internal quotation marks omitted.) Hunter,
2013 IL 114100, ¶ 10, 986 N.E.2d 1185. Where the initial and subsequent charges are subject to
compulsory joinder, delays attributable to the defendant on the initial charge are not attributable
to the defendant on the new and additional charges " 'because these new and additional charges
were not before the court when those continuances were obtained.' " Phipps, 238 Ill. 2d at 66,
933 N.E.2d at 1193 (quoting People v. Williams, 94 Ill. App. 3d 241, 249, 418 N.E.2d 840, 846
(1981)). The purpose of the so-called Williams rule is to prevent "trial by ambush" wherein
"[t]he State could lull the defendant into acquiescing to pretrial delays on pending charges, while
it prepared for a trial on more serious, not-yet-pending charges." (Internal quotation marks
omitted.) Woodrum, 223 Ill. 2d at 300, 860 N.E.2d at 270. This court has made clear, however,
that the Williams rule does not apply to included offenses because an indictment for an offense
serves as an indictment for all included offenses. People v. Callahan, 334 Ill. App. 3d 636, 642,
778 N.E.2d 737, 743 (2002). Thus, included offenses "are deemed to have been before the court
when earlier continuances were granted." Id.
¶ 27 Here, the parties dispute whether the later UPWF charge was a "new and
additional" charge or merely an included offense of the original AUUW charge. We review de
novo whether the UPWF charge is new and additional. Phipps, 238 Ill. 2d at 67, 933 N.E.2d at
1194. To do so, we must compare the original and subsequent charges. Id.
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¶ 28 The State's original charge of AUUW was based on defendant, having previously
been convicted of a felony, knowingly carrying on or about his person, when not on his own land
or in his own abode or place of business, a firearm that was uncased, loaded, and immediately
accessible. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010). The State's later charge of
UPWF was based on defendant, after having been convicted of a felony, knowingly possessing
on or about his person any firearm. See 720 ILCS 5/24-1.1(a) (West 2010).
¶ 29 Thus, both the AUUW and UPWF charges were premised on defendant
knowingly possessing a firearm after having been previously convicted of a felony. Defendant
acknowledges that the conduct alleged in the original count, AUUW, encompassed the conduct
alleged in UPWF. However, defendant argues that the State's tactic of substituting UPWF for
AUUW three days before trial prejudiced defendant in that it stripped defendant of his defense
on the additional element in AUUW not present in UPWF—namely, that the firearm at issue was
"uncased, loaded, and immediately accessible." As the State points out, however, an indictment
for a particular offense serves an indictment for all included offenses. See Callahan, 334 Ill.
App. 3d at 642, 778 N.E.2d at 743. What defenses the defendant may or may not have as a result
of the subsequent charge is not part of our analysis for purposes of compulsory joinder and the
statutory right to a speedy trial. Every element of UPWF is contained within AUUW and it is
impossible to commit AUUW without committing UPWF. See id. Therefore, the subsequent
UPWF charge is not a "new and additional" charge subject to the rule announced in Williams.
Because the State charged defendant with AUUW, the lesser offense of UPWF was before the
court when the court considered requests to continue the case. See People v. Dressler, 317 Ill.
App. 3d 379, 387, 739 N.E.2d 630, 637 (2000). Moreover, "[t]he question for a speedy-trial
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analysis is whether defendant had adequate notice of the subsequent charges to allow him to
prepare and present a defense." Mays, 2012 IL App (4th) 090840, ¶ 45, 980 N.E.2d 166.
¶ 30 Defendant asserts that based on Phipps, we are required to compare the respective
penalties of the two charges in determining whether UPWF is a new and additional charge.
Defendant argues that because UPWF carries a greater maximum penalty than AUUW, the
subsequent charge of UPWF is a new and additional charge. Based on defendant's criminal
history, AUUW was a Class 2 felony carrying a prison term of between three and seven years.
720 ILCS 5/24-1.6(d)(3) (West 2010). By contrast, UPWF was a Class 3 felony punishable by a
prison sentence of up to 10 years. 720 ILCS 5/24-1.1(e) (West 2010).
¶ 31 In Phipps, the supreme court concluded that the original reckless homicide charge
provided defendant adequate notice of the subsequent aggravated driving under the influence
charge. Phipps, 238 Ill. 2d at 70, 933 N.E.2d at 1195. In reaching its decision, the supreme
court reasoned that the original indictment and subsequent information alleged the same conduct.
Id. at 68, 933 N.E.2d at 1194. The court went on to note that, as charged by the State, reckless
homicide and aggravated driving under the influence "had essentially the same elements and
provided the same penalty." Id.
¶ 32 Although the supreme court noted the two charges carried the same penalty, the
Phipps decision makes clear the supreme court's determination turned on whether defendant had
notice of the subsequent charge. Indeed, the court stated "[t]he critical point" for its speedy-trial
analysis was "whether the original indictment gave defendant adequate notice to prepare his
defense to the subsequent charge." Id. at 69, 933 N.E.2d at 1195. In applying the same
reasoning to our case, we conclude no speedy-trial violation occurred when the State added the
UPWF charge because, although UPWF carried a greater maximum sentence, all of the elements
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of UPWF were contained within AAUW and, thus, defendant was on notice that he should
prepare a defense to UPWF. See People v. Arndt, 50 Ill. 2d 390, 395, 280 N.E.2d 230, 233
(1972) (the defendant could not claim surprise when the State added a count for involuntary
manslaughter because defendant was at all times subject to a conviction for involuntary
manslaughter under the original murder charge). Given defendant does not assert that the trial on
the original charge took place in violation of his statutory right to a speedy trial, all delays
attributable to him on the original charge would apply to the subsequent UPWF charge.
Therefore, no speedy-trial violation occurred.
¶ 33 Because no speedy-trial violation occurred, defendant has failed to establish he
was prejudiced by counsel's failure to object to or file a motion to dismiss the UPWF charge;
thus, we reject defendant's ineffective assistance of counsel claim. Phipps, 238 Ill. 2d at 71, 933
N.E.2d at 1196. Likewise, because defendant cannot establish any error occurred, no further
plain-error analysis is required. See People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403,
411 (2007) (first step under the plain-error doctrine is to determine whether error occurred).
¶ 34 B. Defendant's Proportionate-Penalties-Clause Claim
¶ 35 Defendant next asserts his 10-year sentence for UPWF violates the proportionate
penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Specifically, defendant
argues that because UPWF is a lesser-included offense of AUUW but is punished more harshly
than AUUW, his 10-year sentence for UPWF must be vacated.
¶ 36 A statute violates the proportionate-penalties clause of the Illinois Constitution if
it contains the same elements as another offense but carries a greater sentence. People v. Sharpe,
216 Ill. 2d 481, 521, 839 N.E.2d 492, 517 (2005). This is so because if the legislature
determines the exact same elements merit two different punishments, then one of those
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punishments has not been set according to the seriousness of the offense. Id. at 522, 839 N.E.2d
at 517.
¶ 37 Defendant acknowledges UPWF and AUUW are not truly "identical."
Specifically, AUUW contains an additional element that the defendant's firearm be uncased,
immediately accessible, and loaded. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), 24-1.1(a) (West
2010). This additional element notwithstanding, defendant claims that treating the two offenses
as identical for proportionate-penalties purposes is consistent with both the purpose of the
proportionate-penalties clause and the supreme court's decision in Sharpe. We disagree.
¶ 38 In People v. Dunn, 365 Ill. App. 3d 292, 294-95, 849 N.E.2d 148, 150 (2006), the
defendant argued the punishment applicable to predatory criminal sexual assault of a child
violated the proportionate-penalties clause because it was harsher than the penalties for offenses
with identical elements, namely, predatory criminal sexual assault of a child while armed with a
firearm and predatory criminal sexual assault of a child involving the discharge of a firearm.
Our court rejected the defendant's argument, concluding the offenses did not have identical
elements and, thus, the defendant failed to show the punishment for predatory criminal sexual
assault of a child violated the proportionate-penalties clause. Id. at 296, 849 N.E.2d at 151.
Defendant urges us to overrule our decision in Dunn because it relied on People v. Espinoza, 184
Ill. 2d 252, 702 N.E.2d 1275 (1998), which did not involve offenses where the lesser-included
offense carried a greater penalty than the greater encompassing offense. We decline to overrule
Dunn, as we find it is consistent with the supreme court's directive in Sharpe to abandon cross-
comparison proportionate-penalties analysis. See Sharpe, 216 Ill. 2d at 519, 839 N.E.2d at 515-
16.
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¶ 39 Therefore, we reject defendant's claim that his 10-year sentence for UPWF
violates the proportionate-penalties clause.
¶ 40 C. Defendant's Due Process and Equal Protection Claims
¶ 41 Defendant next argues his 10-year sentence for UPWF violates the due process
clause of the Illinois Constitution and the equal protection clauses of the United States and
Illinois Constitutions.
¶ 42 1. Due Process Clause
¶ 43 Defendant claims his sentence violates the due process clause of the Illinois
Constitution (Ill. Const. 1970, art. I, § 2) because UPWF is a lesser-included offense of AUUW
but is punished more harshly than AUUW.
¶ 44 "Under the State's police power, the legislature possesses wide discretion in
prescribing penalties for defined offenses." People v. Dixon, 359 Ill. App. 3d 938, 942, 835
N.E.2d 925, 929 (2005). Nonetheless, "[t]he legislature's power to fix penalties is *** subject to
the constitutional proscription which prohibits the deprivation of liberty without due process of
law." People v. Bradley, 79 Ill. 2d 410, 417, 403 N.E.2d 1029, 1032 (1980). In considering a
due process challenge, our inquiry is whether the penalty is reasonably designed to remedy the
particular evil that the legislature was targeting. Sharpe, 216 Ill. 2d at 523, 839 N.E.2d at 518.
We will not invalidate a statute "unless the challenged penalty is clearly in excess of the very
broad and general constitutional limitations applicable." (Internal quotation marks omitted.)
Dixon, 359 Ill. App. 3d at 942, 835 N.E.2d at 929.
¶ 45 Prior to 2000, section 24-1.1(e) provided only that UPWF was a Class 3 felony.
720 ILCS 5/24-1.1(e) (West 1998). Thus, a person convicted of UPWF was subject to a
maximum regular sentence of 5 years in prison and a maximum extended-term sentence of 10
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years in prison. 730 ILCS 5/5-8-1(a)(6), 5-8-2(a)(5) (West 1998). Public Act 91-544, which
became effective on January 1, 2000, modified section 24-1.1(e) to provide that a person guilty
of UPWF "if sentenced to a term of imprisonment, shall be sentenced to no less than 2 years and
no more than 10 years." Pub. Act 91-544, § 5 (eff. Jan. 1, 2000). Thus, after 2000, a person
convicted of UPWF could be subject to a maximum regular sentence of 10 years without the
presence of an aggravating factor.
¶ 46 Public Act 91-690, effective April 13, 2000, enacted section 24-1.6 of the
Criminal Code of 1961, creating the offense of AUUW. Pub. Act 91-690, § 10 (eff. Apr. 13,
2000). AUUW committed by a felon was a Class 2 felony; thus, a felon convicted of AUUW
was subject to a maximum regular sentence of no more than 7 years' imprisonment or a
maximum extended-term sentence of no more than 14 years' imprisonment with the presence of
an aggravating factor. 720 ILCS 5/24-1.6(d) (West 2000); 730 ILCS 5/5-8-1(a)(5), 5-8-2(a)(4)
(West 2000). Eventually, in 2006, the legislature made the prison term for AUUW mandatory.
Pub. Act 94-72, § 5 (eff. Jan. 1, 2006). At the time of defendant's offense, a prison term was not
mandatory for UPWF. 720 ILCS 5/24-1.1(e) (West 2010); see also People v. Johnson, 237 Ill.
2d 81, 98, 927 N.E.2d 1179, 1190 (2010). AUUW carried a mandatory supervised release
(MSR) term of two years, while UPWF was subject to a one-year MSR term.
¶ 47 In support of his claim that his 10-year sentence for UPWF violates the due
process clause, defendant cites Bradley, in which the supreme court found a due process clause
violation where possession of a controlled substance was a Class 3 felony subject to an
indeterminate sentence of 1 to 10 years but delivery of that same substance was only a Class 4
felony subject to an indeterminate sentence of 1 to 3 years. Bradley, 79 Ill. 2d at 414-18, 403
N.E.2d at 1030-32. The supreme court reasoned the Illinois Controlled Substances Act (Ill. Rev.
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Stat. 1977, ch. 56 1/2, ¶ 1100 et seq. (now 720 ILCS 570/100 et seq. (West 2010))) expressly
stated the General Assembly's intent was to "penalize most heavily the illicit traffickers or
profiteers of controlled substances." (Internal quotation marks omitted.) Id. at 418, 403 N.E.2d
at 1032. Accordingly, punishing the possession of a controlled substance more harshly than the
delivery of that substance directly contravened the express intent of the legislature and violated
the due process clause of the Illinois Constitution. Id.
¶ 48 Here, defendant has failed to show his sentence for UPWF is contrary to the
legislative's intent in enacting the statute. Indeed, unlike Bradley, defendant has provided no
citation to an express statement of the legislative intent in enacting UPWF or AUUW. Thus,
defendant has failed to show the penalty for UPWF is not reasonably designed to remedy the
particular evil the legislature was targeting such that a due process violation has occurred.
¶ 49 2. Equal Protection Clauses
¶ 50 Defendant also contends his 10-year sentence for UPWF violates the equal
protection clauses of both the Illinois and United States Constitutions (U.S. Const., amend. XIV,
§ 1; Ill. Const. 1970, art. I, § 2) because by enacting different sentences for UPWF and AUUW,
the legislature is treating those who have committed similar offenses dissimilarly.
¶ 51 The equal protection clause requires the government to treat similarly situated
individuals in a similar fashion, unless the government can show an appropriate reason to treat
the individuals differently. People v. Masterson, 2011 IL 110072, ¶ 24, 958 N.E.2d 686. The
applicable level of scrutiny we apply to an equal protection challenge is determined by the nature
of the right involved. Id. Here, defendant concedes his case does not involve a fundamental
right and the individuals at issue here, convicted felons illegally possessing a firearm, are not a
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suspect class. Thus, we apply a rational basis standard, under which we must determine whether
the statute bears a rational relationship to a legitimate government purpose. Id.
¶ 52 "[I]t is axiomatic that an equal protection claim requires a showing that the
individual raising it is similarly situated to the comparison group." Id. ¶ 25, 958 N.E.2d 686.
Defendant must make a showing that he is similarly situated to those against whom he seeks
comparison. If the defendant is unable to make this showing, his equal protection claim fails and
application of the rational basis standard is not required. Id.
¶ 53 In Bradley, the supreme court rejected the argument that a defendant convicted of
possession of a controlled substance was similarly situated to one convicted of delivery of a
controlled substance, because "[b]y the very definition of the offenses, those accused of one
would be dissimilarly situated from those accused of the other." Bradley, 79 Ill. 2d at 417, 403
N.E.2d at 1032. Given that AUUW and UPWF are by their respective definitions different,
defendant cannot meet his burden of showing his is similarly situated. Under the holding in
Bradley, defendant's assertion that one convicted of UPWF is similarly situated to one convicted
of AUUW fails.
¶ 54 D. Defendant's Claims Concerning Void and Duplicate Fines
¶ 55 Finally, defendant argues this court must vacate (1) six fines imposed by the
circuit clerk, as the clerk lacked authority to impose the fines, and (2) seven duplicate fees.
Further, defendant asserts that, should the trial court impose fines on remand, he should receive
$5 per diem credit against those fines (725 ILCS 5/110-14 (West 2010)). The State concedes
fines must be imposed judicially and that defendant's case should be remanded for judicial
imposition of mandatory fines, subject to available incarceration credit, as well as the elimination
of duplicate fees. We accept the State's concession in part.
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¶ 56 In this case, the trial court ordered only that defendant pay "all costs of
prosecution herein." A computer printout, however, reveals that for each of defendant's two
convictions, the circuit clerk imposed the following assessments, which constitute fines: (1) a
$30 juvenile expungement fine (730 ILCS 5/5-9-1.17(a) (West 2010)) (listed as three separate
$10 charges for the State Police Services Fund, State's Attorney's Office Fund, and Circuit Clerk
Operation and Administration Fund (730 ILCS 5/5-9-1.17(b) (West 2010)); (2) a $10
"Traffic/Criminal" fine surcharge (730 ILCS 5/5-9-1(c) (West 2010)); and (3) a $10 State Police
operations fine (705 ILCS 105/27.3a (West 2010)). 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. Williams, 2013 IL App (4th) 120313, ¶ 16, 991 N.E.2d 914.
Thus, we vacate the circuit clerk's assessment of fines.
¶ 57 The clerk also imposed, for each of the two convictions, a $10 arrestee's medical
assessment. Although defendant categorizes this assessment as a "fee," we note an arrestee's
medical assessment may be imposed regardless of whether a defendant actually incurs an injury
requiring medical care. People v. Unander, 404 Ill. App. 3d 884, 890, 936 N.E.2d 795, 800
(2010). Therefore, the arrestee's medical assessment is a fine. See People v. Jake, 2011 IL App
(4th) 090779, ¶ 29, 960 N.E.2d 45 (An assessment is a fee only if it is intended to reimburse the
State for a cost incurred in the defendant's prosecution.). Because the circuit clerk lacks
authority to impose fines, we vacate the arrestee's medical assessment.
¶ 58 In addition, the clerk imposed the following fees for each of the two convictions:
(1) a $5 document storage fee, (2) a $10 automation fee, (3) a $100 circuit clerk fee, (4) a $25
court security fee, (5) a $50 court finance fee, and (6) a $40 State's Attorney fee. In People v.
Alghadi, 2011 IL App (4th) 100012, ¶ 22, 960 N.E.2d 612, we stated that a defendant may only
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be assessed one of each of these fees, even when a defendant is charged with multiple counts
within the same case number. Subsequent to Alghadi, however, the Second District adopted a
different approach to addressing duplicate fees. In both People v. Martino, 2012 IL App (2d)
101244, 970 N.E.2d 1236, and People v. Pohl, 2012 IL App (2d) 100629, 969 N.E.2d 508, the
Second District examined the language of the statute or ordinance imposing each fee to ascertain
whether that fee could be imposed more than once. In doing so, the Second District concluded
some of the fees could be assessed multiple times in one case. See Martino, 2012 IL App (2d)
101244, ¶ 56, 970 N.E.2d 1236 ("[t]he imposition of multiple County Jail Medical Costs Fund
fees, court finance fees, State's Attorney's fees, and drug court/mental health court fines was
proper").
¶ 59 In light of the Second District's decisions, we decline to apply Alghadi and will
instead examine the language of the statutes authorizing the fees at issue in this case to determine
whether duplicate fees could be imposed. In construing the statutes, our "primary objective is to
ascertain and give effect to the legislature's intent, keeping in mind that the best and most reliable
indicator of that intent is the statutory language itself, given its plain and ordinary meaning."
People v. Elliott, 2014 IL 115308, ¶ 11, 4 N.E.3d 23. Our review is de novo. Id.
¶ 60 The record indicates the circuit clerk imposed six duplicate fees in this case. We
address each fee in turn.
¶ 61 1. Document Storage Fee
¶ 62 First, the clerk imposed two $5 document storage fees. To defray the costs of a
document storage system, section 27.3c(a) of the Clerks of Courts Act (Clerks Act) (705 ILCS
105/27.3c(a) (West 2010)) authorizes the clerk to charge a fee of between $1 and $15, which
"shall be paid *** by the defendant in any felony, misdemeanor, traffic, ordinance, or
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conservation matter." (Emphasis added.) 705 ILCS 105/27.3c(a) (West 2010). In Pohl, the
Second District concluded that the word "matter" could be used as a synonym for "case" or to
refer to an allegation in a pleading. Pohl, 2012 IL App (2d) 100629, ¶ 21, 969 N.E.2d 508
(citing Black's Law Dictionary 999 (8th ed. 2004)). It reasoned that "matter" was synonymous
with "case" because one would not normally speak of a defendant charged with a crime as the
defendant "in" an allegation. Pohl, 2012 IL App (2d) 100629, ¶ 21, 969 N.E.2d 508. We find
the Second District's reasoning persuasive and thus conclude "matter" signifies "case";
accordingly, defendant could be assessed only one fee for his case, even though it resulted in
multiple convictions.
¶ 63 2. Automation Fee
¶ 64 The clerk also imposed two $10 automation fees. Like section 27.3c, section
27.3a of the Clerks Act allows a circuit clerk, in order to defray the cost of maintaining an
automated system, to collect a $1 to $15 fee, which "shall be paid *** by the defendant in any
felony, traffic, misdemeanor, municipal ordinance, or conservation case." (Emphasis added.)
705 ILCS 105/27.3a(1) (West 2010). Thus, a defendant can only be assessed one automation fee
per case. Accordingly, we vacate the duplicate automation fee.
¶ 65 3. Circuit Clerk Fee
¶ 66 The clerk also imposed two $100 circuit clerk fees. Section 27.1a(w)(1)(A) of the
Clerks Act provides, in relevant part, as follows:
"(1) The clerk shall be entitled to costs in all criminal and quasi-
criminal cases from each person convicted or sentenced to
supervision therein as follows:
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(A) Felony complaints, a minimum of $40
and a maximum of $100." 705 ILCS
105/27.1a(w)(1)(A) (West 2010).
Thus, the plain language of section 27.1a(w)(1)(A) of the Clerks Act entitles the clerk to collect
one fee per felony complaint. Because the counts the State filed constituted one felony
complaint, the clerk could impose only one circuit clerk fee. Accordingly, we vacate one of the
two circuit clerk fees.
¶ 67 4. Court Security Fee
¶ 68 The record likewise demonstrates the circuit clerk imposed two $25 court security
fees. Section 5-1103 of the Counties Code (55 ILCS 5/5-1103 (West 2010)) authorizes a county
board to enact a fee to defray court security expenses, specifying that "[i]n criminal, local
ordinance, county ordinance, traffic and conservation cases, such fee shall be assessed against
the defendant." (Emphasis added.) 55 ILCS 5/5-1103 (West 2010). Because the statute refers to
cases and not individual convictions, the clerk could only impose one court security fee here.
Pohl, 2012 IL App (2d) 100629, ¶ 12, 969 N.E.2d 508. Thus, we vacate the duplicate security
fee.
¶ 69 5. Court Finance Fee
¶ 70 The circuit clerk additionally imposed two $50 court finance fees. Section 5-
1101(c) of the Counties Code provides that a county board may enact "[a] fee to be paid by the
defendant on a judgment of guilty or a grant of supervision," which "for a felony" is $50. 55
ILCS 5/1101(c) (West 2010). Thus, the plain language of section 5-1101(c) of the Counties
Code allows a clerk to assess a fee on each judgment of guilty or grant of supervision. Here, the
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jury found defendant guilty of two counts; accordingly, the circuit clerk properly assessed two
$50 court finance fees—one $50 fee for each of defendant's two counts.
¶ 71 6. State's Attorney Fee
¶ 72 Finally, the clerk assessed duplicate $40 State's Attorney fees. Section 4-2002(a)
of the Counties Code entitles the State's Attorney to the following: "For each conviction in
prosecutions on indictments for first degree murder, second degree murder, involuntary
manslaughter, criminal sexual assault, aggravated criminal sexual assault, aggravated criminal
sexual abuse, kidnapping, arson and forgery, $30. All other cases punishable by imprisonment in
the penitentiary, $30." 55 ILCS 5/4-2002(a) (West 2010). As the Second District noted in
Martino, section 4-2002(a) thus provides that the State's Attorney fee may be assessed "on a per-
conviction basis." Martino, 2012 IL App (2d) 101244, ¶ 47, 970 N.E.2d 1236. Accordingly, the
clerk's imposition of two State's Attorney fees was proper.
¶ 73 To summarize, we conclude the circuit clerk could impose only one of each of the
following fees: (1) the document storage fee, (2) the automation fee, (3) the circuit clerk fee, and
(4) the court security fee. However, the clerk could impose two court finance fees and two
State's Attorney fees based on defendant being convicted of two felony counts.
¶ 74 III. CONCLUSION
¶ 75 For the reasons stated, we affirm the trial court's judgment, vacate the improperly
imposed fines and fees, and remand with directions for the trial court to determine the basis for
the $40 State's Attorney fee and impose any mandatory fines as authorized at the time of the
offense. As part of our judgment, we award the State its $50 statutory fee against defendant as
costs of this appeal. 55 ILCS 5/4-2002(a) (West 2010).
¶ 76 Affirmed in part and vacated in part; cause remanded with directions.
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