People v. Dunlap ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Dunlap, 2013 IL App (4th) 110892
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RICHARD DUNLAP, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-11-0892
Filed July 1, 2013
Held Based on the record showing that defendant affirmatively acquiesced in
(Note: This syllabus the trial court’s assessment of a $400 reimbursement for the public
constitutes no part of defender who represented defendant at his trial, the appellate court found
the opinion of the court that defendant waived his argument that the trial court failed to consider
but has been prepared his affidavit of financial condition.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Livingston County, No. 11-CF-82; the
Review Hon. Jennifer H. Bauknecht, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Karen Munoz, and John M. McCarthy, all of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
Thomas J. Brown, State’s Attorney, of Pontiac (Patrick Delfino, Robert
J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE STEIGMANN delivered the judgment of the
court, with opinion.
Justices Pope and Holder White concurred in the judgment and opinion.
OPINION
¶1 Following a June 2011 trial, a jury convicted defendant, Richard Dunlap, of (1) one count
of aggravated battery to a police officer (720 ILCS 5/12-4(b)(18) (West 2010)) and (2) five
counts of resisting arrest (720 ILCS 5/31-1(a) (West 2010)). In August 2011, the court
sentenced defendant to four years in prison. As part of defendant’s sentence, the court
imposed a $400 reimbursement for court-appointed counsel pursuant to section 113-3.1 of
the Code of Criminal Procedure of 1963 (725 ILCS 5/113-3.1 (West 2010)).
¶2 Defendant appeals, arguing that the trial court erred by ordering reimbursement because
the court failed to consider his affidavit of financial condition as required by section 113-
3.1(a) of the Code (725 ILCS 5/113-3.1(a) (West 2010)). Because we conclude that
defendant affirmatively acquiesced to the court’s imposition of the $400 reimbursement
order, we affirm.
¶3 I. BACKGROUND
¶4 Following a June 2011 trial, a jury convicted defendant of (1) one count of aggravated
battery to a police officer (720 ILCS 5/12-4(b)(18) (West 2010)) and (2) five counts of
resisting arrest (720 ILCS 5/31-1(a) (West 2010)).
¶5 In August 2011, the trial court conducted a sentencing hearing and sentenced defendant
to four years in prison. After imposing the term of imprisonment, as well as various other
fines and fees, the court addressed defendant as follows:
“THE COURT: Now, I also set this for hearing to determine whether or not to
impose [an] assessment [for court-appointed counsel,] and I have had an opportunity to
review the [presentence investigation report (PSI)]. The purpose of this hearing is to
determine what if any public defender assessment the Court should impose. The statute
allows for anything from zero to $5,000. There was a *** trial in this case; and you do
-2-
have the ability to work although I understand you’ve been in jail for some time; but
you’ve worked in the past. So I’m considering a $400 public defender assessment
considering we had a jury trial in this case. But this is your opportunity if you’ve got any
evidence or anything you want to say on whether or not I should impose that.
THE DEFENDANT: (Shakes head).
THE COURT: Is there anything you’d like to say? Can you answer out loud for the
record?
THE DEFENDANT: No.
THE COURT: So I’ll impose a $400 public defender assessment, and that would also
be due within 12 months of your release from the Illinois Department of Corrections.
Any questions, [counsel]?
[PROSECUTOR]: No, judge.
[DEFENSE COUNSEL]: No, Your Honor.”
¶6 This appeal followed.
¶7 II. DEFENDANT’S CLAIM THAT THE TRIAL COURT ERRED
BY IMPOSING A PUBLIC DEFENDER REIMBURSEMENT
¶8 Defendant argues that the trial court erred by imposing a public defender reimbursement
because the court failed to consider his affidavit of financial condition as required by section
113-3.1(a) of the Code (725 ILCS 5/113-3.1(a) (West 2010)). Because we conclude that
defendant affirmatively acquiesced to the court’s imposition of the $400 public defender
reimbursement, we disagree.
¶9 More than two years ago, this court restated the difference between waiver and forfeiture,
as follows:
“Waiver is the intentional relinquishment of a known right, whereas forfeiture is the
failure to make a timely assertion of a known right. [Citations.] In the course of
representing their clients, trial attorneys may (1) make a tactical decision not to object
to otherwise objectionable matters, which thereby waives appeal of such matters, or (2)
fail to recognize the objectionable nature of the matter at issue, which results in
procedural forfeiture.” People v. Bowens, 407 Ill. App. 3d 1094, 1098, 943 N.E.2d 1249,
1256 (2011).
¶ 10 In this case, the trial court expressed its intent to impose a $400 public defender
reimbursement after reviewing all the information presented to it, including the PSI. When
asked whether there was “anything [defendant] want[ed] to say [as to] whether or not [the
court] should impose that [reimbursement],” defendant, and his counsel, both responded that
they had nothing to say.
¶ 11 Nevertheless, for the first time on appeal, defendant claims that the trial court erred by
imposing the $400 public defender reimbursement because the court failed to consider his
affidavit of financial condition. As previously indicated, we conclude that defendant has
waived his challenge in this regard because he affirmative acquiesced not only to the amount
-3-
of the reimbursement, but also to the materials the court relied upon to arrive at the amount
of the reimbursement. (Defense counsel may not have objected to the imposition of
reimbursement for court-appointed counsel because counsel may have recognized that the
court’s calculation did not run afoul of section 113-3.1 of the Code. See People v. Barbosa,
365 Ill. App. 3d 297, 302, 849 N.E.2d 152, 155 (2006) (“it is entirely appropriate for the
court to consider existing evidence of the defendant’s financial condition, such as an affidavit
prepared in order to obtain court-appointed counsel or a presentence investigation report that
contains pertinent financial data” (emphasis added)).)
¶ 12 We also note that plain-error analysis does not apply to this case. Plain-error analysis, of
course, “applies to cases involving procedural default ***, not affirmative acquiescence.”
Bowens, 407 Ill. App. 3d at 1101, 943 N.E.2d at 1258. When, as here, defense counsel
affirmatively acquiesces to actions taken by the trial court, a defendant’s only challenge may
be presented as a claim for ineffective assistance of counsel on collateral attack. Id.
(Defendant does not contend in this appeal that his counsel was ineffective.)
¶ 13 III. CONCLUSION
¶ 14 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
award the State its $50 statutory assessment against defendant as costs.
¶ 15 Affirmed.
-4-