People v. Rector , 2024 IL App (5th) 220711-U ( 2024 )

2024 IL App (5th) 220711-UNOTICE
NOTICE
Decision filed 07/19/24. The
This order was filed under
text of this decision may be NO. 5-22-0711
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jefferson County.
)
v. ) No. 20-CF-117
)
CODY T. RECTOR, ) Honorable
) Jerry E. Crisel,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE SHOLAR delivered the judgment of the court.
Justices Moore and Barberis concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction is affirmed where the State did not commit plain error
during rebuttal closing argument; the trial court’s restitution order is remanded for
the issuance of an amended restitution order.
¶2 The defendant, Cody T. Rector, appeals his conviction following a jury trial in the circuit
court of Jefferson County for predatory criminal sexual assault and two counts of child
pornography. On appeal, defendant argues that the State committed plain error by shifting the
burden of proof to the defense during rebuttal closing argument. Defendant also contends that the
trial court’s restitution order fails to comply with the requirements of People v. Auler, 250 Ill. App.
3d 1095 (5th Dist. 1993). For the following reasons, we affirm defendant’s convictions but remand
for the issuance of an amended restitution order.
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¶3 I. BACKGROUND
¶4 The State charged defendant by information with two counts of predatory criminal sexual
assault of a child, in violation of section 11-1.40(a)(1) of the Criminal Code of 2012 (Code) (720
ILCS 5/11-1.40(a)(1) (West 2020)); seven counts of child pornography, in violation of sections
11-20.1(a)(1), 11-20.1(a)(2), and 11-20.1(a)(6) of the Code (id. § 11-20.1(a)(1), (a)(2), (a)(6)); and
one count of felony possession of a firearm without a FOID card, in violation of section 2(a)(1) of
the Firearm Owners Identification Card Act (430 ILCS 65/2(a)(1) (West 2020)). Count I charged
defendant with touching the vagina of a minor, E.I., under the age of 13. Count II charged
defendant with licking the vagina of E.I. Counts III and IV charged defendant with child
pornography for taking and disseminating photos of E.I. The additional five counts of child
pornography alleged defendant possessed pornographic photos of unknown females under the age
of 18 and count X alleges defendant possessed a firearm without a valid FOID card. Count X was
severed before trial and later dismissed.
¶5 Following a jury trial, on June 23, 2022, defendant was convicted on counts I, III and IV.
Defendant was found not guilty on counts II, V, VI, VII, VIII, and IX. The trial court sentenced
defendant to three consecutive terms totaling 75 years in the Illinois Department of Corrections
(IDOC) with 3 years mandatory supervised release (MSR).
¶6 Relevant to this appeal, the following facts were adduced at trial. On March 4, 2020, a chat
website called Flingster.com received a report flagging a picture as possible child pornography.
Flingster forwarded the complaint to the National Center for Missing and Exploited Children. The
complaint was forwarded to an area task force, and on April 28, 2020, the case was assigned to
Captain Detective Bobby Wallace with the Jefferson County Sheriff’s Department, who was a
member of the Illinois Attorney General’s Internet Crimes Against Children Task Force. The
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flagged photograph depicted a young girl on a bed, with her nightgown pulled up to expose her
bare buttocks; it appeared that her underwear had been removed. The Internet Protocol address (IP
address) associated with the file was registered to Spectrum Communications in the Mt. Vernon,
Illinois, area. Wallace obtained a search warrant to obtain information from Spectrum about the
holder of the IP address which revealed that at the date and time of the complaint, the IP address
was assigned to the account of defendant at his home in Mt. Vernon. Based on this information,
Wallace and other officers obtained and executed a search warrant at defendant’s home for the
seizure and analysis of electronic devices or electronic storage devices.
¶7 Wallace executed the search warrant on May 7, 2020. When Wallace knocked on the door,
Alyssa Wolf (defendant’s former girlfriend and E.I.’s mother) answered. When asked if defendant
was home, Alyssa said yes and went inside to get him. Alyssa told defendant that the police were
at the door, and defendant told Alyssa to say he was not home. Alyssa refused. Defendant went to
the door, and Wallace informed defendant about the warrant. Defendant, Alyssa, and E.I. gathered
in the living room while law enforcement executed the warrant. Law enforcement seized
defendant’s Apple iPhone, defendant’s Apple desktop computer, and other phones and tablets.
Wallace testified that Alyssa fully cooperated in the investigation.
¶8 Both defendant and Alyssa gave recorded statements at the sheriff’s office later that day.
In her noncustodial interview, Alyssa stated she had never heard of Flingster and had never been
on it. When Wallace showed her the picture that someone at her home posted on Flingster, Alyssa
identified the child in the picture as E.I. Alyssa said she did not take the picture, had never seen it
before, and that she did not use defendant’s computer. Alyssa further stated that defendant was
laid off from his job with a school bus company and that he babysat E.I. while she worked.
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¶9 In her interview, Alyssa told Wallace that recently, E.I. said she had a rash. E.I. told Alyssa
that defendant put cream on her, and that he also put cream on himself. When Alyssa asked E.I.
where on himself defendant put the cream, E.I. said, “his thingy” and pointed down. Defendant
was not home at the time E.I. made these statements, so Alyssa called him. Defendant denied
putting cream on E.I. Defendant told Alyssa that he put Vaseline on himself in the living room due
to chafing and that E.I. must have seen him. Alyssa examined E.I., but she did not find either cream
or a rash. Alyssa again asked E.I. if defendant put cream on her. E.I. responded that she was lying
about defendant putting cream on her, but that he did put it on himself.
¶ 10 In defendant’s custodial interview, defendant admitted having been on Flingster, but he
said he could not recall the last time he was on it or whether he accessed it from his phone or his
computer. Wallace showed defendant the picture from Flingster; defendant said the subject of the
photograph looked like E.I. Initially, defendant stated the bedroom was E.I.’s, but later stated the
room was his, but that E.I. never slept on his bed.
¶ 11 Defendant initially denied taking the photograph. When asked if the picture would be found
on his phone, defendant said no. When asked if his answer to whether he took the picture was yes,
no, or that he did not remember, defendant paused, stammered, and then said: “I wanna say I—I—
I didn’t.” Defendant then equivocated on whether that was his “official answer, because, I mean,
maybe I did and was like, hey, she—why’d she fall asleep like this or what the fuck, but I—I
highly doubt I was doing anything like that.” Later in the interview, when asked again if he took
the picture, defendant answered, “To my knowledge, no.” Defendant said that if the picture was
later found on his phone, it was Alyssa who had taken it and posted it, or alternatively, he
speculated he was being set up and that he allowed his friends to use his computer and his phone.
When Wallace told defendant his phone would be examined, defendant stated he did not remember
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taking the picture, but the only way he would have taken it would be to show it to Alyssa, but that
he did not remember doing so.
¶ 12 When Wallace asked about the Vaseline incident, defendant stated that E.I. walked into the
bedroom while he was masturbating, but to his knowledge, she never saw anything. He added that
he was not very cautious with her being around. He denied putting cream or lotion on E.I., but
stated he put cream or lotion between his own legs when he was in the living room.
¶ 13 Two days after his interview, while in custody, defendant exchanged a series of texts with
Alyssa via the jail’s text messaging service. In the messages, defendant said E.I. fell asleep “in a
weird way” and that he was going to send Alyssa a picture, but he was “afraid it could be looked
at in a wrong way.” In the messages, defendant speculated the picture recovered by law
enforcement could have been that picture. Defendant also theorized that E.I. could have been
positioned on his bed in that manner while he was starting her bath, and that he had been walking
around on his phone while livestreaming.
¶ 14 On May 8, 2020, five-year-old E.I. was interviewed at The Amy Schulz Child Advocacy
Center in Mt. Vernon, Illinois, by forensic interviewer Wendi Zobrist. Prior to the interview, law
enforcement gave Zobrist a brief report that stated a picture of E.I. had been put on an adult
website. The report said nothing about sexual molestation. During the interview, E.I. told Zobrist
that sometimes defendant watches “bad stuff” on the TV while cleaning his legs. When asked to
point to where defendant was cleaning, E.I. said, “[h]ere,” and pointed to her crotch. E.I. also told
Zobrist that defendant sometimes “cleaned his legs” in her room while E.I. was in the room and
while Alyssa was not home. Zobrist asked E.I. if she ever talked to her mom about defendant
cleaning his legs, and E.I. answered no because defendant told her it was a secret. Toward the end
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of the first interview, when Zobrist asked E.I. to confirm that she had touched defendant’s “leg,”
E.I. said that was a joke.
¶ 15 Zobrist testified that sometimes after a forensic interview, a child makes additional
disclosures, and that in such cases, a second interview is conducted. After her initial interview, E.I.
made additional disclosures to her grandfather, and as such, Zobrist conducted a second interview
with E.I. on May 22, 2020. In the second interview, E.I. disclosed that defendant touched her
vaginal area, both inside and outside, while defendant was unclothed and in E.I.’s room. E.I. further
disclosed that she saw slime come out of defendant’s “leg.” Zobrist reminded E.I. that at the first
interview, E.I. told Zobrist that she was joking about touching defendant. When asked why it was
a joke, E.I. said it was funny and that she loves her jokes and wants to keep them. Zobrist testified
that when E.I. said it was a joke, she interpreted this as E.I. wanting the interviews to end.
¶ 16 The forensic analysis of the devices seized during the execution of the search warrant did
not reveal the picture of E.I. on defendant’s bed, but other child pornography images were found
on his iPhone and desktop computer. Wallace, an expert in computer analysis and forensic
technology, testified that the image of E.I. could have been deleted from the phone or the computer
prior to the seizure.
¶ 17 In August of 2021, more than a year after defendant’s arrest, E.I. made an unprompted
disclosure to her mother and told her that defendant “licked her hoo-ha.” Alyssa reported this
statement to Wallace. E.I. was not reinterviewed at the Amy Center after this disclosure, as
Wallace did not believe this was substantially different from the sexual activity that E.I. had
already disclosed.
¶ 18 At the jury trial, seven-year-old E.I. testified that an example of a “good touch” is a hug,
and an example of a “bad touch” is if someone touched your “hoo-ha.” When asked to define that
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term, she pointed at her private part. She further stated that nobody should touch that part, or a
girl’s “butt[ ]” or [b]oobs.” When asked if anyone had ever touched those parts of her body, E.I.
named defendant. When asked what he touched her with, E.I. stated “[h]is fingers inside and
outside, and he licked my hoo-ha.” When asked where she was when this occurred, she stated she
was in defendant’s bedroom and identified a picture of his room.
¶ 19 Both E.I. and Alyssa testified that E.I. told Alyssa that defendant licked and touched her
“hoo-ha,” and Alyssa testified that E.I. told her that defendant put cream on her and himself. E.I.
testified that she told her mother that she lied about this, because defendant denied it on the phone.
E.I. thought her mother did not believe her. Alyssa testified that E.I. did not tell her she was lying
about defendant putting his finger inside her vagina and licking her vagina.
¶ 20 Wallace testified that Flingster is a web-based chat site that allows livestreaming if a
person’s camera is activated. Defendant’s desktop computer had a built-in web camera, and
Wallace found evidence that defendant accessed Flingster from that computer. Wallace testified
that although Flingster does not allow a user to upload pictures, a person could get an image onto
Flingster using multiple methods—screensharing, screen captures, or holding another device
displaying the image up to the web camera. Wallace did not know specifically how the image of
E.I. was transmitted to Flingster.
¶ 21 After the presentation of the evidence, the State’s rebuttal closing argument concluded as
follows:
“Ladies and gentlemen, the totality of everything you’ve seen here, is there
anything that has convinced you that he has not touched that little girl inappropriately; that
he has not touched her vagina; that he has not licked her vagina; that he has not jacked off
in front of her; that he has not had slime coming out of his penis in her presence? Because
if you think he did that, if you believe beyond a reasonable doubt that he possessed that
material and he touched that little girl, please return a verdict of guilty. Thank you.”
¶ 22 The jury instructions provided to the jury included, in part:
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“The defendant is presumed to be innocent of the charges against him. This
presumption remains with him throughout every stage of the trial and during your
deliberations on the verdict and is not overcome unless from all evidence in this case you
are convinced beyond a reasonable doubt that he is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable
doubt, and this burden remains on the State through the case. The defendant is not required
to prove his innocence.”
¶ 23 After approximately 3½ hours of deliberation, the jury found defendant guilty of predatory
criminal sexual assault based on touching E.I.’s vagina; not guilty on the count of predatory
criminal sexual assault based on licking E.I.’s vagina; guilty on the two counts of child
pornography against E.I.; and not guilty on the five additional counts of child pornography alleging
possession of lewd pictures.
¶ 24 Defendant was arrested and first charged in May 2020. He was released in June 2021 prior
to trial upon payment of $25,000 bond by his family. At sentencing, the State asked for the court
costs and fees to be satisfied from the bond money and for the remainder of the bond money to be
held for counseling for E.I. The State explained that E.I. receives weekly counseling sessions at a
cost of $150 per hour. The State offered that the cost of this counseling was not yet determined,
but explained its understanding that the bills would be submitted to the circuit clerk’s office for
payment. Further, the State suggested that this arrangement could continue until five years after
defendant’s release from prison. On the day after sentencing, a payment status information sheet
was filed, reflecting that $5064 in fees and costs were paid in full and that defendant had no money
due. A docket entry for that day showed the remaining posted bond amount was $19,936. The
docket entry stated that this money was not to be refunded and would be held to pay for the victim’s
mental health counseling.
¶ 25 The trial court sentenced defendant to mandatory consecutive terms totaling 75 years in
IDOC with 3 years’ MSR. The court noted that defendant would serve over 51 years of real time
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with credit for time served. The court did not impose a fine but imposed all mandatory costs and
assessments. The court also ordered that defendant’s bail bond money be held and used to pay for
counseling for E.I. “as allowed by statute.” The court’s financial sentencing order provided:
“Restitution—Mental Health Counseling $TBD.” On July 22, 2022, defendant filed a posttrial
motion for a new trial arguing (i) the evidence was insufficient to find defendant guilty beyond a
reasonable doubt and (ii) defendant was not afforded a fair trial due to the prosecutor’s statements
regarding defendant having the ability to access pornographic files that could only be accessed by
use of specialized software. That motion was denied on August 18, 2022. Also on August 18, 2022,
defendant filed his motion to reconsider sentence, arguing defendant’s sentence was excessive and
that the court abused its discretion in sentencing defendant. That motion was denied on October 4,
2022. This timely appeal followed.
¶ 26 II. ANALYSIS
¶ 27 On appeal, defendant argues that the State improperly shifted the burden of proof to the
defense in rebuttal closing argument. Additionally, defendant argues the trial court abused its
discretion in ordering the balance of defendant’s bond money to be held to pay for the victim’s
counseling because its restitution order did not set out the required details. Finally, defendant asks
this court to remand for a new hearing on the issue of restitution. For the reasons that follow, we
affirm the defendant’s convictions but remand for the issuance of an amended restitution order.
¶ 28 First, we address defendant’s argument that the State improperly shifted the burden of
proof to him during rebuttal closing argument. Defendant did not object to the error at trial, nor
did he raise the error in a posttrial motion. As such, and as he concedes, the issue is forfeited, and
is only reviewable for plain error. See People v. Williams, 2022 IL 126918. “To preserve a
purported error for consideration by a reviewing court, a defendant must object to the error at trial
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and raise the error in a posttrial motion.” People v. Sebby, 2017 IL 119445, ¶ 48 (citing People v.
Belknap, 2014 IL 117094, ¶ 66); see generally People v. Enoch, 122 Ill. 2d 176 (1988); People v.
Ford, 19 Ill. 2d 466 (1960) (“An accused may not sit idly by and allow irregular proceedings to
occur without objection and afterwards seek to reverse his conviction by reason of those same
irregularities.”). Failure to do either results in forfeiture of such review, but the forfeiture may be
excused when the error is “plain.” Sebby, 2017 IL 119445, ¶ 48.
¶ 29 Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) memorializes the plain-error
doctrine:
“Any error, defect, irregularity, or variance which does not affect substantial rights shall
be disregarded. Plain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the trial court.”
The plain-error doctrine does not create a “general saving clause” to allow defendants to escape
the consequences of their nonfeasance. People v. Herron, 215 Ill. 2d 167, 177 (2005). Instead, it
offers a narrow exception to the rule of procedural default for unpreserved errors. People v.
Jackson, 2020 IL 124112, ¶ 81. Whether there is plain error is a question of law, which we review
de novo. People v. McLaurin, 235 Ill. 2d 478, 485 (2009).
¶ 30 “[T]he defendant cannot obtain relief on an unpreserved error under the plain-error doctrine
if he would not have been entitled to relief on the same error if preserved.” Williams, 2022 IL
126918, ¶ 49. The Illinois Supreme Court has identified two instances in which a reviewing court
can consider a forfeited but still clear and obvious error: (1) when “a clear or obvious error
occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of
justice against the defendant, regardless of the seriousness of the error,” or (2) when “a clear or
obvious error occurred and that error is so serious that it affected the fairness of the defendant’s
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trial and challenged the integrity of the judicial process, regardless of the closeness of the
evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing Herron, 215 Ill. 2d at 186-87).
¶ 31 The initial step under either prong of the plain-error doctrine is to determine whether there
was a clear or obvious error at trial. Id. Therefore, “the threshold inquiry is whether there was an
error at all.” Williams, 2022 IL 126918, ¶ 49 (citing Jackson, 2020 IL 124112, ¶ 81).
¶ 32 Here, defendant seeks review under the second prong of the plain-error doctrine. Under the
second prong of the plain-error doctrine, a reviewing court must decide whether the defendant has
shown that the error was so serious it affected the fairness of the trial and challenged the integrity
of the judicial process. Herron, 215 Ill. 2d at 187. If the defendant meets that burden, “[p]rejudice
*** is presumed because of the importance of the right involved.” Id. “[C]omments in
prosecutorial closing arguments will rarely constitute second-prong plain error because the vast
majority of such comments generally do not undermine basic protections afforded to criminal
defendants.” Williams, 2022 IL 126918, ¶ 56.
¶ 33 The prosecution has wide latitude in making closing arguments and is permitted to
comment on the evidence and any fair, reasonable inference it yields. People v. Glasper, 234 Ill.
2d 173, 204 (2009) (citing People v. Nicholas, 218 Ill. 2d 104, 121 (2005)). A closing argument
must be viewed in its entirety, and challenged remarks must be viewed in the context of the entire
argument as well as the trial court’s instructions that arguments are not evidence, that the State
bears the burden of proving the defendant’s guilt beyond a reasonable doubt, and that the defendant
need not present any evidence. Id. An improper closing comment is reversible error only if it
substantially prejudiced the defendant’s right to a fair trial. People v. Euell, 2012 IL App (2d)
101130, ¶ 22.
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¶ 34 On appeal, defendant characterizes the State’s rebuttal closing argument as burden-
shifting. Defendant argues the prosecutor required the defense to convince the jury that he was
innocent and that he did not commit the crimes. The State disagrees with defendant’s
characterization of the rebuttal closing argument. The State counters that the prosecutor did not
allege the defendant had the burden of producing evidence of his innocence and that the prosecutor
did not argue that defendant failed to produce such evidence. We agree with the State.
¶ 35 In the case before us, the prosecutor did not state that defendant had the burden of
producing evidence of his innocence, and the prosecutor did not argue that he failed to produce
such evidence. A closing argument must be viewed in its entirety. See Glasper, 234 Ill. 2d at 204.
Looking at the rebuttal closing argument as a whole, the prosecutor asked the jury whether it was
convinced of his innocence based on the “totality of everything you’ve seen here,” not based on
the evidence that defendant did or did not produce. Immediately following the contested comment,
the prosecutor reminded the jury of the State’s burden of proof by stating that the jury should
convict defendant if it believed “beyond a reasonable doubt” that he committed the charged crimes.
¶ 36 Further, the court repeatedly and explicitly instructed the jury that the burden of proving
defendant’s guilt rested with the State, and that the State had to meet that burden beyond a
reasonable doubt in order for the jury to convict him. In jury selection, the court ascertained that
each juror understood and accepted the principles set forth in Illinois Supreme Court Rule 431(b)
(eff. July 1, 2012) and further ascertained that each juror would apply the law provided by the
court, without regard to personal feelings. Where a jury is repeatedly properly instructed on the
burden of proof, a contested comment by the State in rebuttal closing argument is not reversible
error. See People v. Mudd, 2022 IL 126830, ¶¶ 45-46.
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¶ 37 More importantly, we further find that defendant did not suffer substantial prejudice as a
result of this challenged comment. First, there was significant, credible evidence at trial that tied
defendant to these crimes. Second, the court repeatedly and explicitly instructed the jury that the
burden of proving defendant’s guilt rested with the State, and that the State had to meet that burden
beyond a reasonable doubt in order for the jury to convict him. Therefore, where there is no error
and where the court properly instructed the jury, defendant has not met his threshold plain-error
burden of showing that the State clearly and obviously shifted the burden to him.
¶ 38 Even if we were to find that defendant met the initial step of the plain-error doctrine,
defendant has not shown that the error was so serious it affected the fairness of the trial and
challenged the integrity of the judicial process. Improper burden-shifting comments are not
necessarily second-prong plain error. See People v. Bell, 2020 IL App (4th) 170804, ¶¶ 137-41.
The Fourth District found in Bell, similar to the case at hand, that improper burden-shifting
comments were not second-prong plain error where the prosecution did not directly state that the
defendant had the burden to introduce evidence of innocence, that the State’s comments primarily
concerned the credibility of the defendant’s theory in light of the evidence presented, and the jury
was properly instructed. Id. The Second District has also held that improper burden-shifting
comments were not second-prong plain error where the prosecution did not directly state that the
defendant had the burden to support his theory. Euell, 2012 IL App (2d) 101130, ¶¶ 20-23. In the
case at hand, similar to Bell and Euell, the prosecution did not directly state that the defendant had
the burden to introduce evidence of his innocence nor did the prosecution state that the defendant
had the burden to support his theory. For the foregoing reasons, defendant has not met his burden
of showing that the State’s challenged comment, even if improper, affected the fairness of the trial
and challenged the integrity of the judicial process, or that it was so inflammatory or flagrant that
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he was denied a fair trial. For these reasons, the State did not commit plain error in his rebuttal
closing argument. As such, defendant’s convictions are affirmed.
¶ 39 Next, defendant argues that the trial court’s restitution order is inadequate under the
restitution statute (730 ILCS 5/5-5-6(e) (West 2020)). Defendant asks this court to remand the
matter to the trial court to correct the order. Defendant argues the restitution order for future
counseling expenses is based on speculation and does not comply with the requirements of People
v. Auler, 250 Ill. App. 3d 1095, 1101 (5th Dist. 1993).
¶ 40 Defendant was arrested and first charged in May 2020. He was released in June 2021 prior
to trial upon payment of $25,000 bond by his family. At sentencing, the State asked for the court
costs and fees to be satisfied from the bond money and for the remainder of the bond money to be
held for counseling for E.I. The State explained that E.I. receives weekly counseling sessions at a
cost of $150 per hour. The State offered that the cost of this counseling would be undetermined,
but explained its understanding that the bills would be submitted to the circuit clerk’s office, which
would pay them, and further told the court that this arrangement could continue until five years
after defendant’s release from prison. On the day after sentencing, a payment status information
sheet was filed, reflecting that $5064 in fees and costs were paid in full and that defendant had no
money due. A docket entry for that day showed the remaining posted bond amount was $19,936.
The docket entry stated that this money was not to be refunded and would be held to pay for the
victim’s mental health counseling.
¶ 41 A circuit court’s determination on restitution will not be reversed on appeal absent an abuse
of discretion. People v. Cameron, 2012 IL App (3d) 110020, ¶ 35. Where the issue is whether a
restitution order is authorized by statute, the issue is one of law, subject to a de novo standard of
review. Id. Defendant concedes that the trial court was authorized to issue a restitution order for
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E.I.’s counseling expenses, and that the trial court was authorized to order the balance of
defendant’s cash bond be used for that purpose. As such, we review the trial court’s restitution
order for an abuse of discretion.
¶ 42 Section 5-5-6 of the Unified Code of Corrections permits an order of restitution for
prospective counseling expenses in sex abuse cases. 730 ILCS 5/5-5-6 (West 2020). When a court
orders restitution for future counseling expenses, the order must include a maximum dollar
amount, the time frame for counseling and proof of expenses, that the court services or probation
department will administer the restitution payment, that either party may petition the court if a
dispute arises, and a date when any bond monies held for use for restitution will be remitted to the
defendant. Auler, 250 Ill. App. 3d at 1101.
¶ 43 In defendant’s financial sentencing order, entered August 18, 2022, the court entered a
restitution amount of “TBD.” Defendant does not dispute that the trial court has the discretion to
order restitution from his cash bond; however, defendant asserts the trial court’s restitution order
does not adhere to the statutory requirements set forth in section 5-5-6 of the Unified Code of
Corrections. Specifically, defendant asserts the court based the order for future counseling
expenses on speculation, did not include a maximum dollar amount, the time frame for counseling
and proof of expenses, that the court services or probation department will administer the
restitution payment, that either party may petition the court if a dispute arises, and a date when any
bond monies held for use for restitution will be remitted to the defendant. In response, the State
argues that the restitution award had a sufficient factual basis and was sufficiently definite in most
respects. Additionally, the State argues the trial court’s oral pronouncement controls, and that it
provided adequate certainty on that issue. We reject the State’s argument and remand to the trial
court for the issuance of a modified restitution order.
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¶ 44 In the sentencing context, it is well settled that a written order is evidence of the trial court’s
judgment, but the court’s oral pronouncement is the judgment of the court. People v. Carlisle,
2015 IL App (1st) 131144, ¶ 87. When the court’s oral pronouncement conflicts with its written
order, the oral pronouncement controls. Id. We agree with defendant that we cannot read the trial
court’s written order in conjunction with its oral pronouncement and determine the conditions of
the restitution order. Additionally, the State makes no argument on appeal regarding the trial
court’s failure to include a method for resolving disputes in its restitution order, and instead asks
this court to amend the order to include that provision. We decline to do so.
¶ 45 Where a restitution order is not sufficiently clear and definite, the proper remedy is for the
reviewing court to remand the cause for the trial court to provide any missing conditions of the
restitution award. See Auler, 250 Ill. App. 3d at 1101. We agree with defendant that the trial court
did not issue a clear and definite restitution order and the matter should be remanded to the trial
court for the issuance of a modified restitution order.
¶ 46 III. CONCLUSION
¶ 47 For the reasons stated, defendant’s Jefferson County convictions are affirmed. However,
we remand this matter for the issuance of a modified restitution order, where the trial court is
directed to specify the maximum amount, duration, and other conditions of the restitution order.
¶ 48 Affirmed and remanded with directions.
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