People v. D'Alise , 2022 IL App (2d) 210541 ( 2022 )

2022 IL App (2d) 210541No. 2-21-0541
Opinion filed December 27, 2022
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 19-CM-1848
)
JAMES V. D’ALISE, ) Honorable
) Monique N. O’Toole,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
Justices Schostok and Birkett concurred in the judgment and opinion.
OPINION
¶1 This case presents a question on how restitution is ordered and paid. Following a bench
trial, defendant, James V. D’Alise, was convicted of seven counts (counts I and IV through IX) of
the unlicensed practice of dentistry (225 ILCS 25/37(1), (2), (4) (West 2018)). He was sentenced
to 270 days in jail on count I and 2 years of conditional discharge on the remaining counts. The
trial court also ordered him to pay restitution totaling $14,163.80. He moved the trial court to
reconsider, arguing, among other things, that the restitution order was improper. The court denied
that motion, and this timely appeal followed. Defendant argues that the restitution order is
improper because (1) the costs the victims incurred were not the result of defendant’s criminal
conduct, (2) the trial court did not expressly find that defendant was able to pay restitution, and
2022 IL App (2d) 210541(3) even if no such express finding was required, the case must be remanded for the court to specify
the time frame within which defendant must pay all restitution. Defendant also claims that, to the
extent he forfeited these issues by failing to raise them in the trial court, we can consider them
under the plain-error rule or because trial counsel was ineffective for failing to raise the issues. We
affirm, but we remand for the limited purpose of allowing the trial court to set the time frame
within which defendant must pay all restitution.
¶2 I. BACKGROUND
¶3 On August 16, 2019, defendant was arrested for the unlicensed practice of dentistry. On
that same date, he posted a cash bond of $1500. Defendant retained private counsel, who filed an
appearance on September 24, 2019. On September 27, 2019, the trial court allowed defendant to
travel to Florida for several days. On December 17, 2019, the court allowed defendant to relocate
to Texas while the case was pending. Thereafter, the defendant appeared in person or over Zoom
when the court required his presence. In January 2020, defendant relocated to New Mexico,
apparently without seeking court permission.
¶4 Defendant’s trial began on May 24, 2021. Defendant testified that he graduated from dental
school in 1968. He owned a specialty dentistry practice, A Center for Dental Implants (ACDI),
from 2005 to July 2018. The implants ACDI used were manufactured in New Mexico by a
company owned by defendant’s brother. In January 2020, defendant, then age 78 and largely
retired, moved to New Mexico to work as a consultant for his family’s manufacturing company.
¶5 For 40 years, defendant worked as a dentist, but on July 31, 2018, his dental license was
revoked. After July 31, 2018, defendant remained the majority owner of ACDI and continued to
work there as the office manager, hiring dentists to treat patients. Sarah Rigdon and James Wadas
were two such patients.
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2022 IL App (2d) 210541¶6 Rigdon’s and Wadas’s experiences with defendant and ACDI were detailed both at trial
and at the restitution hearing. Rigdon, age 79 at trial, had known defendant since 2006 when she
visited ACDI for an evaluation with defendant about possible implants. Subsequently, defendant
personally installed implants for Rigdon. In July 2018, Rigdon’s bone structure started to break
down, which caused her implants to loosen. Defendant proposed a treatment plan to address
Rigdon’s problem. The plan involved several meetings between defendant and Rigdon, some of
which occurred after July 2018. The plan—finalized in October or November 2018—was “to take
out old dental work and put in some new dental work, along with bone grafting.”
¶7 Dr. Becker, a dentist employed by ACDI, performed the work on Rigdon. In January 2019,
Dr. Becker installed temporary implants. When Rigdon returned for follow-up treatment, Dr.
Becker, who could not easily remove the temporary implants, spent two hours hammering and
breaking them before gluing the pieces together and putting them back in Rigdon’s mouth. Rigdon
testified that, after this procedure, the implants were ill-fitting and uncomfortable.
¶8 At Rigdon’s next appointment, Dr. Thomas Faucher, another dentist employed by ACDI,
told Rigdon that she needed a sinus lift but that such a procedure was beyond his expertise. Rigdon,
who lived in Wisconsin, obtained from Dr. Faucher a referral to a Wisconsin dentist who could
perform the procedure. After Rigdon’s first visit to the referral dentist, she returned to ACDI and
saw defendant, who agreed that a referral was proper. Defendant told Rigdon that he would
reimburse her for the dental work done by the referral dentist. Thereafter, the Wisconsin dentist
treated Rigdon. However, defendant never reimbursed her for the cost of that treatment.
¶9 Rigdon confirmed that, “as part of going to see the defendant at [ACDI],” she “sustained
some injuries or some treatment that [she] had to go get corrected.” As a result, she sought $9500
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2022 IL App (2d) 210541in restitution, consisting of $5000 she paid ACDI for dental work performed after July 2018 and
the $4500 she spent for dental work in Wisconsin.
¶ 10 Wadas went to ACDI because his teeth were falling out from cancer treatment. In May
2016, defendant personally installed implants for Wadas. Later, the implants began to loosen.
Between October 2018 and June 2019, ACDI dentists (other than defendant) recemented Wadas’s
teeth. However, the teeth still kept loosening. Defendant and ACDI dentists formed a plan to fix
the problem. When their efforts continued to fail, Wadas sought treatment from other dentists and
specialists. He submitted invoices to show what he spent on the remedial treatment.
¶ 11 The trial court found defendant guilty of seven counts of unlicensed practice of dentistry.
On June 9, 2021, the trial court held a sentencing hearing. No presentence investigation report
(PSI) was presented to the trial court, as defense counsel waived it. Instead, defense counsel and
defendant’s 78-year-old wife asserted that defendant was the couple’s sole provider, that both were
in poor health, and that the loss of ACDI was difficult for them.
¶ 12 The written sentencing order provided:
“Defendant is sentenced to serve 270 day(s) in Du Page County Jail. Defendant is
sentenced to Conditional Discharge for a term of 24 month(s). During that time the
Defendant shall:”
The order then listed the terms of conditional discharge. Toward the bottom, it stated, “Defendant’s
motion for a stayed sentence is denied,” “Future date for restitution hearing,” and “Defendant is
taken into the custody of Du Page County.”
¶ 13 The court held a restitution hearing on July 29, 2021. Defendant, who had served 49 days
of his jail sentence, did not testify at that hearing. The trial court awarded restitution of $9500 to
Rigdon and $4663.80 to Wadas. The written order for restitution provided:
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2022 IL App (2d) 210541“Defendant is sentenced to 270 day(s) in Du Page County Jail. During that time the
Defendant shall:
1. Pay $9,500 in restitution to [Rigdon] in equal monthly installments or as ordered
by the Court. Such payments must be made in full not less than 60 days prior to the end of
the term. The office of [the] States Attorney is responsible for monitoring this restitution.
Also, pay $4,663.80 in restitution to [Wadas] in equal monthly installments or as ordered
by the Court. Such payments must be made in full not less than 60 days prior to the end of
the term. The office of [the] States Attorney is responsible for monitoring this restitution.
All payments are to be made to the Circuit Court Clerk.
***
3. Any and all money paid by the Defendant or on the Defendant’s behalf, from
today’s date forward, shall be applied to restitution until the restitution is paid in full.
***
After hearing, defendant is ordered to pay restitution as indicated.”
Like the sentencing order, the restitution order stated toward the bottom, “Defendant’s motion for
a stayed sentence is denied,” “Future date for restitution hearing,” and “Defendant is taken into the
custody of Du Page County.” However, neither at the restitution hearing nor in the restitution order
did the trial court make a specific finding about defendant’s ability to pay restitution. Nor did the
court specify at the hearing the time frame for defendant to pay all restitution.
¶ 14 On August 25, 2021, defendant filed a “Motion to Vacate, Reconsider, and/or Modify
Sentencing Order.” In the motion, defendant argued, among other things, that restitution was
improper because a licensed dentist and not defendant completed the dental work that Rigdon and
Wadas received through ACDI.
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2022 IL App (2d) 210541¶ 15 On September 16, 2021, the trial court held a hearing on the motion. Defense counsel,
noting that defendant had served 98 days of his jail sentence, asked the court to impose a term of
supervision instead of conditional discharge. Counsel said, “Right now, there is no employment
forthcoming for [him] after the sentence is served.” Counsel never argued that the restitution order
was improper because the court did not consider defendant’s ability to pay. Without elaboration,
the court denied the motion.
¶ 16 Defense counsel then made an oral request that the court (1) appoint the Office of the State
Appellate Defender (OSAD) to represent defendant on appeal and (2) allow defendant to reside in
New Mexico after serving his jail sentence. The court asked the State if it objected. The State said
it was unprepared to address whether the appointment of OSAD was proper. The State suggested
that defense counsel file a motion for an OSAD appointment. Regarding whether defendant should
be allowed to reside in New Mexico upon his release, the State asserted that “[t]here would be [an
objection], contingent on the restitution at that time.” The court paused the case briefly to consider
defendant’s requests. After the recess, the court granted defendant’s request to reside in New
Mexico upon his release. The court advised the State that “presumably he can make restitution
from where he is at in New Mexico.” The State asked, “And if he doesn’t?” The court responded,
“Well, then certainly you could bring a PTR [(petition to revoke conditional discharge)] and
proceed that way.” Concerning the OSAD appointment, the court, without elaboration, “allow[ed]
that as well.” The court did not inquire about defendant’s financial condition before appointing
OSAD.
¶ 17 II. ANALYSIS
¶ 18 At issue in this appeal is whether the restitution order is improper because (1) the costs
Rigdon and Wadas incurred were not the result of defendant’s criminal conduct, (2) the trial court
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2022 IL App (2d) 210541failed to expressly find that defendant was able to pay restitution, and (3) even if no such express
finding was required, the restitution order fails to specify the time frame for defendant to pay all
restitution. However, before considering these issues, we must address two preliminary matters.
¶ 19 First, the trial court appointed OSAD without first determining whether defendant was
indigent. See 725 ILCS 105/10(a) (West 2020) (“The State Appellate Defender shall represent
indigent persons on appeal in criminal and delinquent minor proceedings, when appointed to do
so by a court under a Supreme Court Rule or law of this State.”). That was improper. People v.
Adams, 388 Ill. App. 3d 762, 768 (2009) (court must not make an indigency determination without
a specific inquiry into the defendant’s ability to pay for private counsel). However, briefing and
oral argument are complete. Remedying the error would result in further delays and the
expenditure of precious judicial resources. Therefore, we simply caution the trial court to follow
the rules for appointing OSAD. See People v. Suarez, 224 Ill. 2d 37, 45 (2007) (recognizing that
remand is improper in some situations where doing so would result only in wasting time and money
and expend limited judicial resources).
¶ 20 The second threshold issue is that defendant claims that he preserved review of the
appellate issues he raises. Specifically, he contends that “following sentencing and the restitution
hearing, [trial] counsel filed [the motion to vacate,] in which he argued that the trial court erred in
its determination of the restitution amount, so this issue is preserved for appellate review.”
However, defendant also contends that if we determine that any of his argument is forfeited, we
should apply the plain-error doctrine or find trial counsel ineffective.
¶ 21 Generally, on appeal, we consider forfeited for appeal any issue not raised at trial and in a
posttrial motion. People v. Enoch, 122 Ill. 2d 176, 198 (1988). Here, the record reflects that
defendant argued in the trial court that restitution was improper because his unauthorized practice
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2022 IL App (2d) 210541of dentistry did not cause the injuries Rigdon and Wadas sustained. Because defendant raised this
in the trial court, it is not forfeited.
¶ 22 However, defendant did not argue at the restitution hearing or in his posttrial motion that
(1) the trial court erred by ordering restitution without expressly finding that defendant was able
to pay or (2) the restitution order is unclear concerning the time frame for payment of all restitution.
Thus, he forfeited our review of these issues. The question becomes whether we nevertheless may
review these issues under the plain-error rule or because trial counsel was ineffective for failing to
raise them.
¶ 23 Forfeiture does not apply when the issues raised fall within the parameters of the plain-
error rule. People v. Quezada, 2022 IL App (2d) 200195, ¶ 40. Review of a forfeited error under
the plain-error rule is proper when the error is plain and (1) “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) the error is “so serious that it affected the fairness of the defendant’s
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 People v. Herron, 215 Ill. 2d
167, 178-79 (2005)). Also, the failure to preserve a meritorious sentencing issue for appeal may
constitute ineffective assistance of counsel, i.e., unreasonable conduct by counsel that prejudiced
the defendant. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
¶ 24 Defendant argues that the trial court failed to (1) expressly find that he was able to pay
restitution and (2) clarify the time frame he had to make full restitution—both of which fall under
the second prong of plain-error review, i.e., the alleged errors were so serious that the integrity of
the judicial process was affected. We agree that our review of these issues is proper under the
second prong of plain error. See People v. Birge, 2021 IL 125644, ¶ 50.
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2022 IL App (2d) 210541¶ 25 Accordingly, we review for plain error whether (1) the trial court was required to expressly
find that defendant was able to pay restitution and (2) the restitution order properly indicates the
time frame for defendant to pay all restitution. Alternatively, we determine whether trial counsel
was ineffective for failing to preserve these issues for appeal. With the above in mind, we turn to
the merits of this appeal.
¶ 26 Generally, a trial court’s order for restitution will not be disturbed on appeal absent an
abuse of discretion. People v. Cameron, 2012 IL App (3d) 110020, ¶ 35. A trial court abuses its
discretion only when its ruling is arbitrary, fanciful, or unreasonable or where no reasonable person
would adopt the court’s view. People v. Caffey, 205 Ill. 2d 52, 89 (2001).
¶ 27 That said, an order for restitution must comply with section 5-5-6 of the Unified Code of
Corrections (Corrections Code) (730 ILCS 5/5-5-6 (West 2020)). People v. Boots, 2022 IL App
(2d) 200640, ¶ 51 (“Compliance with [section 5-5-6 of the Corrections Code] is mandatory.”). We
review de novo whether the restitution order here is consistent with this statute. Cameron, 2012 IL
App (3d) 110020, ¶ 35.
¶ 28 The unlicensed practice of dentistry is a Class A misdemeanor, not under the Criminal
Code of 2012 (Criminal Code) (720 ILCS 5/1-1 et seq. (West 2020)) but under section 38 of the
Illinois Dental Practice Act (225 ILCS 25/38 (West 2020)). Because the offense does not arise
under the Criminal Code, restitution is discretionary, not mandatory. See 730 ILCS 5/5-5-6 (West
2020); People v. McCormick, 332 Ill. App. 3d 491, 499 (2002). In determining restitution—which
is a sentence (see id.)—the rules of evidence are relaxed. See People v. Williams, 149 Ill. 2d 467,
490 (1992). As our supreme court observed:
“[T]he rules of evidence that govern the guilt or innocence phase of a trial are not applicable
at sentencing. Instead, a sentencing judge is given broad discretionary power to consider
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2022 IL App (2d) 210541various sources and types of information so that he can make a sentencing determination
within the parameters outlined by the legislature. [Citation.] Evidence is admissible in a
sentencing hearing provided the proffered evidence is relevant and reliable.” Id.With this framework in mind, we consider the issues defendant has raised.
¶ 29 We first address defendant’s argument that the trial court erred when it ordered restitution
for costs Rigdon and Wadas incurred that were not the result of defendant’s criminal conduct.
Defendant notes that he is not challenging the part of the restitution order directing him to
reimburse Rigdon for the $5000 she spent for treatment at ACDI. Rather, he argues that he is not
liable for the remaining $4500 Rigdon seeks or the $4663.80 he was ordered to pay Wadas.
¶ 30 In reviewing this issue, we apply section 5-5-6 of the Corrections Code (730 ILCS 5/5-5-
6 (West 2020)). The trial court may award “restitution in cash, for out-of-pocket expenses,
damages, losses, or injuries found to have been proximately caused by the conduct of the
defendant.” Id. § 5-5-6(a).
“In fixing the amount of restitution to be paid in cash, *** the court shall assess the actual
out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the
charge and any other victims who may also have suffered out-of-pocket expenses, losses,
damages, and injuries proximately caused by the same criminal conduct of the
defendant[.]” Id. § 5-5-6(b).
¶ 31 In construing section 5-5-6(b) of the Corrections Code, we are guided by the well-settled
rules of statutory construction. “The primary rule of statutory construction is to give effect to the
true intent of the legislature.” People v. Brooks, 158 Ill. 2d 260, 264 (1994). “[T]he language of a
statute is the best indication of the legislative drafters’ intent.” Id. “Where the drafters’ intent can
be ascertained from the statutory language, it must be given effect without resort to other aids for
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2022 IL App (2d) 210541construction.” Id. “Furthermore, when ascertaining legislative intent, rules of statutory
construction require that the entire statute be considered.” Id. “As regards penal statutes, they are
to be strictly construed in favor of an accused without, however, defeating the legislative intent.”
Id.¶ 32 “A defendant may be ordered to make restitution if the losses sustained were proximately
caused by the same criminal conduct of the defendant as that of which he was convicted.” (Internal
quotation marks omitted.) People v. Adame, 2018 IL App (2d) 150769, ¶ 15. “ ‘The court may
order restitution for losses incurred by the same victim as the result of the same criminal conduct
of the defendant, even if those losses were not set forth in the charging instrument.’ ” Id. (quoting
People v. Fontana, 251 Ill. App. 3d 694, 706 (1993)). “ ‘However, restitution is improper for
matters unrelated to the charges at issue.’ ” Id. (quoting Fontana, 251 Ill. App. 3d at 706).
¶ 33 The purpose of section 5-5-6 is to make the defendant’s victims whole while also making
the defendant pay any expenses the victims incurred because of the defendant’s criminal actions.
People v. Harris, 319 Ill. App. 3d 534, 536 (2001). Courts have liberally construed section 5-5-6
of the Corrections Code to satisfy this purpose. Id.¶ 34 Here, count IV charged:
“[Defendant] did on or between the 1st day of August, 2018 through the 30th day of June,
2019, *** commit the offense of Unlicensed Practice, in that said defendant, knowingly
employed a dentist or other entity to provide dental care to a patient, James Wadas, when
said defendant’s dental license was not valid, the statute of limitations having been tolled
pursuant to 720 ILCS 5/3-7(a)(3) from August 27, 2019, to date, in violation of 225 ILCS
25/37(1) [(West 2018)].”
¶ 35 Similarly, count V charged:
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2022 IL App (2d) 210541“[Defendant] did on or between the 1st day of August, 2018 through the 30th day of
August, 2019, *** commit the offense of Unlicensed Practice, in that said defendant,
knowingly employed a dentist or other entity to provide dental care to a patient, Sarah
Rigdon, when said defendant’s dental license was not valid, the statute of limitations
having been tolled pursuant to 720 ILCS 5/3-7(a)(3) from August 27, 2019, to date, in
violation of 225 ILCS 25/37(1)[(West 2018)].”
¶ 36 As can be seen, the counts named Rigdon and Wadas but did not allege any out-of-pocket
expenses they incurred. Nonetheless, under the principles above, such expenses were recoverable
if proximately caused by the same criminal conduct of which defendant was convicted. Defendant
was convicted of employing dentists who performed dental work on Rigdon and Wadas after
defendant’s dental license was revoked. 225 ILCS 25/37(1) (West 2018) (unlicensed practice of
dentistry occurs when, among other things, an unlicensed dentist employs dentists who can provide
dental services). Rigdon and Wadas testified that they received dental treatment at ACDI after July
31, 2018—that is, after defendant’s license was revoked and while he was still employing dentists.
Rigdon and Wadas experienced significant issues with ACDI dentists’ work, and both sought
treatment elsewhere to remedy those issues. The costs they incurred for that remedial work were
proximately caused by the dental work performed by ACDI dentists after defendant’s license was
revoked.
¶ 37 Instructive on this point are Cooper v. Paris, 413 So. 2d 772 (Fla. Dist. Ct. App. 1982),
and Vista Designs, Inc. v. Silverman, 774 So. 2d 884 (Fla. Dist. Ct. App. 2001). In Cooper, a real
estate agent licensed in Georgia learned of a substantial piece of property for sale in Florida.
Cooper, 413 So. 2d at 772-73. The agent found a buyer for the property, a Georgia real estate
investor and remained instrumental in the property’s eventual sale. Id. at 773. During that time,
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2022 IL App (2d) 210541the investor’s attorney knew that the agent was unlicensed in Florida, but the evidence was
conflicting on whether the investor also knew that. Id. After the agent was paid his commission,
consisting of personal checks and investor promissory notes, the investor defaulted on some of his
payments to the buyer and the agent. Id. Legal action ensued, and the agent sought to recover under
the promissory notes. Id. The investor claimed, among other things, that the promissory notes were
invalid because the agent was unlicensed in Florida. Id. The investor asked for restitution of the
amounts he had already paid the agent on the promissory notes. Id. The agent moved for summary
judgment, and the trial court granted that motion. Id.¶ 38 The appellate court reversed, holding that one who acts in contravention of licensing
requirements cannot profit from being unlicensed. See id. at 772, 774. After observing that the real
estate licensing requirement exists to prevent unscrupulous practices and protect the consumer, the
court reasoned:
“[T]o refuse to return the monies paid [by the investor] would affront [the] affirmative duty
to see that the party violating public policy not benefit in any way as a result of his
wrongdoing. [Citation.] Otherwise, [the agent] stands to be rewarded for his illegal
activities, a result to which this Court cannot subscribe. Moreover, by allowing [the agent]
to keep these monies this Court would implicitly encourage unlicensed persons to seek up-
front money ***.” Id. at 774.
¶ 39 In Silverman, a design company paid a patent attorney $25,000 to sue a subcontractor that
improperly copied some of the design company’s product. Silverman, 774 So. 2d at 885. Although
the patent attorney had an office in Florida, he was unlicensed to practice law there and, thus, hired
a Florida attorney to work on the case. Id. The Florida attorney and the design company were
unaware that the patent attorney was unlicensed in Florida. Id. Although the patent attorney never
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2022 IL App (2d) 210541tried the case (which settled), he did prepare pleadings, conduct legal research, and take part of a
deposition. Id. at 885-86. The patent attorney indicated that he never intended to appear in court,
as he believed he was merely hired as “ ‘of counsel’ ” by the design company. Id. at 885.
¶ 40 At issue on appeal was, among other things, whether the patent attorney had to repay the
$25,000 he received from the design company. Id. at 886. The appellate court determined that he
did. Id. The court observed:
“While the trial court made no express finding that [the patent attorney] violated any law
by not being admitted to practice law in Florida, he clearly violated the letter and spirit of
the law by engaging in the unauthorized practice of law in Florida, notwithstanding the fact
that he is admitted to practice before the State of New Jersey and Patent Bars. Clearly,
public policy dictates that a party should be unable to benefit in any way as a result of [his
or her] wrongdoing.” Id. at 887.
Unpersuasive to the appellate court was the fact that the patent attorney provided professional and
skilled legal services. Id. at 888. The court noted that “[w]hile [the patent attorney] conferred a
benefit upon [the design company] by providing expert legal services which may have assisted in
the settlement of its legal dispute with [the subcontractor], public policy, however, dictates that a
party should not benefit from its wrongdoing.” Id.
¶ 41 The facts here are just as egregious as those in Cooper and Silverman. After losing his
dental license in Illinois, defendant continued to hire dentists there to perform dental work on
patients. Both Rigdon and Wadas received inadequate treatment from ACDI dentists and thus were
forced to seek treatment elsewhere to remedy the lingering issues from work performed by ACDI
dentists. Defendant is liable for those out-of-pocket expenses.
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2022 IL App (2d) 210541¶ 42 Moreover, in Illinois, like in Florida, strong public policies are in place to protect
consumers from those whose services require licensing. Section 37 of the Illinois Dental Practice
Act (225 ILCS 25/37 (West 2020)) provides that “[t]he practice of dentistry by any person not
holding a valid and current license *** is declared to be inimical to the public welfare, to constitute
a public nuisance, and to cause irreparable harm to the public welfare.” Running a dental practice
without a valid dental license constitutes the unlicensed practice of dentistry. See People ex rel.
Illinois Society of Orthodontists v. United States Dental Institute, Inc., 57 Ill. App. 3d 1029, 1034
(1978). Thus, as with the real estate agent in Cooper and the patent attorney in Silverman, allowing
defendant here to escape liability for his criminal conduct of running a dental practice without
himself being a licensed dentist would allow him to benefit from his criminal conduct. This would
be harmful precedent.
¶ 43 Defendant argues that he is not liable to Rigdon for the $4500 or to Wadas for the $4663.80,
because their dental problems stemmed from defendant’s work before August 1, 2018, when his
license was still valid, and not from injuries sustained after that date. We disagree. First, the
evidence shows that Rigdon and Wadas received substandard dental treatment from ACDI after
August 1, 2018, and eventually sought other dental professionals to remedy their issues. Second,
as the State observes, restitution in this context “does not require that a victim receive poor or
inadequate work.” The State needed to prove only that (1) Rigdon and Wadas received treatment
at ACDI while defendant was unlicensed and (2) the treatment led to further treatment from other
providers, such that proximate causation existed. The State’s evidence proved those two points.
¶ 44 We next address whether (1) the trial court was required to expressly find that defendant
was able to pay restitution and (2) even if no such express finding was required, the case must be
remanded for the trial court to clarify the time frame for defendant to pay all restitution. As noted
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2022 IL App (2d) 210541above, we consider whether defendant has shown plain error or whether trial counsel was
ineffective for failing to raise these issues.
¶ 45 The first step in a plain-error analysis is to decide whether “ ‘plain error’ occurred.”
Quezada, 2022 IL App (2d) 200195, ¶ 40 (quoting Piatkowski, 225 Ill. 2d at 564-65). “Plain error”
is a “ ‘clear’ ” or an “ ‘obvious’ ” error. Id. (quoting Piatkowski, 225 Ill. 2d at 565 n.2). Thus, we
address whether a clear or obvious error arose when (1) the trial court did not expressly find that
defendant was able to pay restitution and (2) the restitution order did not clearly indicate the time
frame for defendant to pay all restitution.
¶ 46 Resolving these issues requires an examination of section 5-5-6(f) of the Corrections Code
(730 ILCS 5/5-5-6(f) (West 2020)), which governs setting the time and manner of restitution. It
provides:
“Taking into consideration the ability of the defendant to pay, *** the court shall determine
whether restitution shall be paid in a single payment or in installments[ ] and shall fix a
period of time not in excess of 5 years, *** within which payment of restitution is to be
paid in full.” Id.¶ 47 As section 5-5-6(f) of the Corrections Code indicates, “[a] trial court must determine a
reasonable time and manner for the payment of restitution.” People v. Day, 2011 IL App (2d)
091358, ¶ 56. To determine a reasonable time frame and manner for payment of restitution
mandates, the court must first consider a defendant’s ability to pay. Id. A trial court is not required
to consider a defendant’s ability to pay in setting the amount of restitution. Id.¶ 48 Here, the trial court did not expressly find that defendant was able to pay restitution. While,
at first blush, this appears to be error, case law suggests otherwise.
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2022 IL App (2d) 210541¶ 49 In People v. Whitfield, 146 Ill. App. 3d 322, 323 (1986), the defendant pleaded guilty to
battery and was ordered to pay $2781.64 in restitution to cover the victim’s medical bills. Evidence
presented at the defendant’s sentencing hearing, including the PSI, revealed that the defendant had
no dependents or prior arrests and was in good health. Id. at 324. The defendant, one of nine
children living with his single mother, attended school regularly and worked hard, but he had
difficulty reading. Id. at 323. For several summers before he was arrested, the defendant enrolled
in a job-training program that helped him obtain summer employment and to earn minimum wage.
Id. at 324. The defendant dropped out of high school during his junior year to get a job and help
his mother pay the bills. Id. Although the defendant was not employed when he was sentenced, he
was working on obtaining his general equivalency diploma and doing well in that program. Id.
Before the trial court sentenced the defendant, defense counsel alerted the court that it needed to
assess the defendant’s ability to pay before ordering restitution. Id. Counsel expressed doubt that
the defendant could pay, while the State believed that he could, surmising that the defendant would
be employed in the future. Id. “The court, without commenting on [the defendant’s] financial
status, ordered him to pay restitution to the victim ***.” Id. Later, the defendant moved the court
to vacate his guilty plea and reconsider the restitution order, arguing, among other things, that the
court failed to consider his ability to pay. Id. The court never addressed that issue when it ruled on
the posttrial motions. Id. The defendant appealed, arguing only that the trial court erred in failing
to consider his ability to pay before ordering restitution. Id. The “[d]efendant base[d] his assertion
on the court’s failure to hold a separate hearing, or at least to make findings, on the question of his
ability to pay the restitution as ordered.” Id.
¶ 50 The appellate court affirmed. Id. The appellate court determined that, because there was
sufficient evidence before the trial court from which it could assess the defendant’s ability to pay,
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2022 IL App (2d) 210541no error arose when the trial court did not expressly find that the defendant had the ability to pay
before “determining a payment period.” Id. at 327. Specifically, the facts before the trial court
were that the defendant “was acquiring an education and job skills; he was well and able-bodied;
he had no dependents[;] and [he] appeared to have a healthy attitude toward improving his lot in
life.” Id. at 326. The appellate court also noted that, although the defendant was currently
unemployed, “[i]t is not essential to an order of restitution that the defendant be employed at the
time of sentencing.” Id. at 327. “[I]t is possible that during the period of probation [the defendant]
will be able to pay.” Id.
¶ 51 Under Whitfield, a trial court is not required to expressly state that it considered a
defendant’s ability to pay. Rather, there need only be sufficient evidence before the court
concerning the defendant’s ability to pay. Here, there was evidence before the court that defendant
could afford to pay restitution. Specifically, defendant posted a $1500 cash bond the same day he
was arrested and, later, could afford to retain private counsel. Rather than stay in Illinois, defendant
had funds to travel to Florida and relocate to Texas and then New Mexico—all within six months
of posting bond. Also, defendant appears to have had a successful career. He worked as a
professional dentist for 40 years and owned a specialty dental practice for at least 13 years. Further,
defendant’s family owned a dental implant company, where the evidence strongly suggests
defendant worked after leaving ACDI. Although—as trial counsel stressed—defendant was
unemployed at the time of sentencing (and could not work as a dentist given the license
revocation), that fact is not decisive under Whitfield. Moreover, whether defendant is truly
unemployed is questionable. At trial, defendant indicated that he is semiretired and working as a
consultant. The fact that he has not returned to full-time work suggests that he amassed enough
money throughout his career to support himself and his wife.
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2022 IL App (2d) 210541¶ 52 Citing section 5-5-6(f) of the Corrections Code (730 ILCS 5/5-5-6(f) (West 2020)),
defendant argues that “the trial court is required to consider any real or personal property or any
other assets of a defendant” in considering a defendant’s ability to pay. In making this argument,
defendant claims that Whitfield is distinguishable because (1) the version of the restitution statute
applied in Whitfield did not contain language requiring consideration of the defendant’s assets and
(2) there was no evidence here of defendant’s assets. We disagree. Although it is true that section
5-5-6(f) now requires the court to consider “any real or personal property or any other assets of
the defendant” in assessing the ability to pay (id.), nothing indicates that consideration of the
defendant’s assets and property is essential to assessing a defendant’s ability to pay restitution.
While in some cases such an assessment may be necessary, we cannot conclude that it was so here.
The evidence here indicated that defendant is a highly educated professional who was a licensed
dentist for 40 years, owned a specialty practice for at least 13 years, and now works as a consultant
at a family-owned dental implant company.
¶ 53 Defendant also argues that the trial court failed to consider his and his wife’s health, his
status as the sole provider for himself and his wife, and his expenses. Putting aside the potential
unreliability of some of these factors and that the trial court had the advantage of observing
defendant and his wife in court, defendant is simply asking us to reevaluate the evidence pertaining
to restitution. As a court of review, we cannot do that. See People v. Sven, 365 Ill. App. 3d 226,
241 (2006).
¶ 54 Given all the above, we conclude that it was not clear or obvious error for the trial court
not to expressly find that defendant was able to pay restitution. Therefore, defendant cannot invoke
the plain-error rule to bypass forfeiture of this claim. Likewise, trial counsel was not ineffective,
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2022 IL App (2d) 210541because the claim had no merit and defendant was not prejudiced by counsel’s failure to raise it.
See People v. Coleman, 158 Ill. 2d 319, 349 (1994).
¶ 55 Of course, the fact that there was evidence before the trial court from which it could assess
defendant’s ability to pay does not mean that the restitution order is proper. A trial court must
specifically consider a defendant’s ability to pay restitution to determine the time frame and
manner of restitution payment. Day, 2011 IL App (2d) 091358, ¶ 56. Thus, for instance, a court
should consider that a defendant with many liquid assets might be able to easily pay a small amount
of restitution in a very short time, while a defendant with no assets might not.
¶ 56 Defendant claims that the trial court failed to specify the period during which he must pay
all the restitution. Referencing the restitution order, defendant argues: “Presumably, ‘the term’
refers to the 270 days that [he] was ordered to serve in Du Page County Jail, but it is not clear
because the trial court did not make any findings on the record.” The transcript from the hearing
on defendant’s motion to vacate suggests that the parties and the trial court believed that restitution
had to be paid in full during defendant’s term of conditional discharge. The State defends this
interpretation, arguing that we must construe the restitution order in light of the court’s sentencing
order, which provides for two years of conditional discharge.
¶ 57 In construing the restitution order, we observe that “[a] court order is to be interpreted in
its entirety with reference to other parts of the record, including pleadings, motions, and issues
before the [trial] court.” Garcia v. Gutierrez, 331 Ill. App. 3d 127, 129 (2002). “An order is to be
construed in a reasonable manner that gives effect to the apparent intention of the trial court.” Id.¶ 58 The restitution order is certainly, at best, less than ideal. As defendant notes, the order
provides for paying restitution during defendant’s jail time, which is improper (see 730 ILCS 5/5-
5-6(f) (West 2020) (time during which restitution must be paid does not include periods of
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2022 IL App (2d) 210541incarceration)). The passing statements at the hearing on the motion to vacate do not persuade us
that defendant knew that he had to pay restitution in monthly installments during his term of
conditional discharge. The restitution order directed defendant to pay $14,163.80 in restitution to
Rigdon and Wadas in equal monthly installments 60 days before the end of “the term.” However,
without knowing what “the term” is, we (and, more importantly, defendant) do not know the
amount defendant must pay per month to satisfy the restitution order. This is fatal. See Boots, 2022
IL App (2d) 200640, ¶ 52 (“A restitution order is ‘fatally incomplete’ when the trial court ‘does
not specify a particular time’ for payment.” (quoting In re Estate of Yucis, 382 Ill. App. 3d 1062,
1067 (2008)).
¶ 59 Whitfield is again helpful here. In Whitfield, the appellate court determined that, “[w]hile
the trial court did not define a payment schedule, as called for in section 5-5-6(f) [of the Corrections
Code], the court’s order called for restitution to be made within one year,” i.e., within the
defendant’s term of probation]. Whitfield, 146 Ill. App. 3d at 326. Payment of restitution within
one year “was reasonable in light of the fact that defendant was not yet employed and did not know
how much he would be earning or how often he would be paid.” Id.
¶ 60 The difference between Whitfield and this case is that the trial court in Whitfield set the
term for paying restitution as one year. Unlike in Whitfield, the trial court here set a payment
schedule of equal monthly installments, but it did not indicate when defendant must make the equal
monthly installments. Although the evidence before the court indicated that defendant generally
could pay restitution, the trial court needed to specifically consider defendant’s ability to pay in
setting a time frame for the payment of all restitution.
¶ 61 We determine that the failure to define the time during which defendant must pay all the
restitution is a clear and obvious error. Thus, even though defendant forfeited this issue by failing
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2022 IL App (2d) 210541to raise it in the trial court, we invoke the plain-error rule to review it. Likewise, trial counsel’s
failure to raise the issue was unreasonable and prejudicial. See Strickland, 466 U.S. at 688, 694.
¶ 62 Given the error, we must consider a remedy. The proper remedy is to remand this case for
the limited purpose of allowing the trial court to determine the time frame for defendant to pay
restitution in full. Boots, 2022 IL App (2d) 200640, ¶ 54. Of course, in setting this time frame, the
court must consider defendant’s ability to pay. Id.¶ 63 As a final matter, we note that, should defendant be unable to pay restitution within the
court-set time, he can move for more time to pay—like the defendant in Whitfield. See 730 ILCS
5/5-5-6(i) (West 2020); see also Whitfield, 146 Ill. App. 3d at 327. However, defendant should be
aware that the trial court will afford additional time only if, through no fault of his own, he cannot
pay within the time set. 730 ILCS 5/5-5-6(i) (West 2020) (“If the court shall find that the defendant
has failed to make restitution and that the failure is not wilful, the court may impose an additional
period of time within which to make restitution.”); see also Whitfield, 146 Ill. App. 3d at 327.
¶ 64 III. CONCLUSION
¶ 65 For the reasons stated, we affirm in part the judgment of the circuit court of Du Page
County and remand for the limited purpose of allowing the trial court to set the time frame for
payment of restitution in full.
¶ 66 Affirmed and remanded with directions.
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2022 IL App (2d) 210541People v. D’Alise, 2022 IL App (2d) 210541Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 19-CM-
1848; the Hon. Monique N. O’Toole, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Tiffany Boye Green, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne
for Hoffman and Kristin M. Schwind, Assistant State’s Attorneys,
Appellee: of counsel), for the People.
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