People v. Harvey

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Supreme Court Date: 2019.02.04
12:24:23 -06'00'
People v. Harvey, 2018 IL 122325
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SHANE
Court: D. HARVEY, Appellant.
Docket No. 122325
Filed September 20, 2018
Decision Under Appeal from the Appellate Court for the Fourth District; heard in that
Review court on appeal from the Circuit Court of Adams County, the Hon.
Scott H. Walden, Judge, presiding.
Judgment Appellate court judgment affirmed as modified.
Counsel on James E. Chadd, State Appellate Defender, Jacqueline L. Bullard,
Appeal Deputy Defender, and Mariah K. Shaver, Assistant Appellate
Defender, of the Office of the State Appellate Defender, of
Springfield, for appellant.
Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
Solicitor General, and Michael M. Glick and Joshua M. Schneider,
Assistant Attorneys General, of Chicago, of counsel), for the People.
Justices CHIEF JUSTICE KARMEIER delivered the judgment of the court,
with opinion.
Justices Thomas, Kilbride, Garman, Burke, Theis, and Neville
concurred in the judgment and opinion.
OPINION
¶1 In this appeal, defendant asks us to consider, pursuant to Illinois Supreme Court Rule 615
(eff. Jan. 1, 1967), forfeited claims that the circuit court has erroneously ordered certain fines
or fees. The State has conceded error on one assessment, and another—that the court never
ordered—has been administratively rectified. We find there was no error with respect to
imposition of the remaining fee at issue. Consequently, there is no error to address and no need
to determine whether relief would be available by way of Rule 615. We, therefore, affirm the
judgment of the appellate court, with the modification hereinafter noted.
¶2 BACKGROUND
¶3 Defendant, Shane D. Harvey, was charged with domestic battery (720 ILCS 5/12-3.2(a)(1)
(West 2012)), with that charged offense elevated to a Class 4 felony due to a prior aggravated
battery conviction (see id. § 12-3.2(b)). Following a November 18, 2013, trial, the jury found
defendant guilty as charged. Defendant, through counsel, filed a posttrial motion, and that
motion was ultimately denied.
¶4 On February 4, 2014, the Adams County circuit court sentenced defendant to the maximum
sentence of three years in prison, followed by a four-year term of mandatory supervised
release. As part of the judgment, the court ordered defendant to pay certain fines and fees
clearly identified—with correlative statutory citations—on a separate sheet titled “Felony
Fines, Costs and Assessments.” Defendant expressed a desire to appeal, so the court appointed
the Office of the State Appellate Defender (OSAD) to represent him. Notice of appeal was
filed on February 10, 2014, and the appeal was docketed as case No. 4-14-0100.
¶5 While that appeal was pending, on March 6, 2014, defendant filed a pro se “Petition for
Reduced Sentence,” alleging, inter alia, that his trial counsel should have pointed out several
errors that appeared in the presentence investigation report (PSI)—errors which, defendant
claimed, caused the trial court to impose the maximum sentence. Defendant—who was
obviously otherwise active in his own behalf and attentive to his case—did not raise any issue
regarding the imposition of fines, fees, or per diem credit. As a result of defendant’s pro se
filing, the trial court reappointed defendant’s trial counsel. On April 16, 2014, the appellate
court granted OSAD’s motion for the voluntary dismissal of the pending appeal. People v.
Harvey, No. 4-14-0100 (Apr. 16, 2014) (dismissed on defendant’s motion).
¶6 On June 25, 2014, trial counsel filed a document—purportedly pursuant to Rule
604(d)—averring that she had consulted with defendant and had “ascertained his contentions
of error in the sentencing hearing.” See Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013). Counsel also
claimed to have “examined the transcripts of the trial and of the sentencing hearing” and to
have “ascertained that no additional or amended pleadings” were “necessary to adequately
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present his contentions of error.” That same day, at a hearing on defendant’s motion,
defendant’s attorney indicated she wished to stand on defendant’s pro se motion. After
considering arguments of counsel, the trial court entered an order denying defendant’s motion.
OSAD was again appointed as counsel on appeal. Notice of appeal was filed June 30, 2014.
¶7 On appeal, defendant first argued that the circuit court erred by failing to conduct any
inquiry into his claim that his trial counsel had rendered ineffective assistance. As the appellate
court noted, “[s]pecifically, in his pro se motion to reduce his sentence, defendant had stated:
‘Several points in the PSI were incorrect (which should have been argued by “my” public
defender at sentencing).’ ” 2017 IL App (4th) 140576-U, ¶ 11. Citing relevant colloquies of the
circuit court and the attorneys, the appellate court observed that the circuit court, at the hearing
on defendant’s motion, “addressed neither those alleged errors in the PSI nor defendant’s
contention that counsel failed to address those alleged errors at sentencing.” Id. ¶ 14. The
appellate court concluded that the circuit court’s failure to “conduct any inquiry” warranted
“remand *** to the trial court for that stated purpose.” (Emphasis in original.) Id. ¶ 21.
¶8 The court then turned to defendant’s contentions that some of his fines and fees were
improperly assessed and that he otherwise did not receive the proper per diem credit to which
he was entitled. The court noted the State’s concession of error with respect to one of
defendant’s contentions and the State’s argument—reiterated before this court—that the
remainder of defendant’s claims were forfeited for failure to raise them in the circuit court. Id.
¶ 23.
¶9 Without invoking the plain-error rule and citing People v. Buffkin, 2016 IL App (2d)
140792, ¶ 11, for the proposition that the State’s confession of error permits review of an
otherwise precluded claim, the appellate court accepted the State’s concession that the $20
court-appointed special advocate (CASA) fee is comparable to the Children’s Advocacy
Center (CAC) fee, that it is actually a fine, and that it is thus subject to the application of
per diem credit. 2017 IL App (4th) 140576-U, ¶ 24.1 The appellate court referenced People v.
Millsap, 2012 IL App (4th) 110668, ¶ 30, for supporting authority that, notwithstanding the
statutory label of “fee,” the CAC fee is actually a fine. In light of the State’s concession and the
holding of Millsap, the appellate court, as an additional charge to the circuit court upon
remand, directed the circuit court to apply defendant’s $5 per diem credit toward the $20
CASA assessment. 2017 IL App (4th) 140576-U, ¶ 24.
¶ 10 The appellate court then summarized defendant’s remaining claims: (1) the $2 state’s
attorney automation fee is actually a fine and is subject to per diem credit, (2) the sheriff’s fee
was improperly assessed, (3) the circuit clerk should not have assessed the $250
deoxyribonucleic acid (DNA) fee because defendant was already in the DNA database, and
(4) the trial court should not have imposed the $10 Crime Stoppers assessment. The appellate
court rejected defendant’s first claim, relying upon its prior decision in People v. Warren, 2016
IL App (4th) 120721-B, ¶ 115, wherein the court held the state’s attorney automation fee is in
1
Defendant in this case raised the monetary assessment issues in a timely filed appeal in which he
asserted an issue otherwise properly preserved, i.e., an issue relating to the ineffectiveness of his trial
counsel and the circuit court’s failure to adequately inquire regarding same. Revestment of
jurisdiction—as discussed in Buffkin and People v. Griffin, 2017 IL App (1st) 143800, appeal allowed,
No. 122549 (Nov. 22, 2017)—is not relevant here; forfeiture is. We express no opinion with respect to
those procedural circumstances or the analyses of those cases.
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fact a fee because it is intended to reimburse the state’s attorneys for their expenses related to
automated record-keeping systems.2 2017 IL App (4th) 140576-U, ¶ 25.
¶ 11 With respect to defendant’s remaining contentions, “relat[ing] to the imposition of fees,
not fines,” the appellate court concluded those claims “do not rise to the level of errors
affecting the fundamental fairness or integrity of the judicial process.” Id. ¶ 26. The only
authority cited by the appellate court is a “Cf.” citation to this court’s decision in People v.
Lewis, 234 Ill. 2d 32, 48 (2009), with a parenthetical explanation that the “imposition of a fine
without an evidentiary basis implicates fundamental fairness and the integrity of the judicial
process sufficient to apply plain-error review.” 2017 IL App (4th) 140576-U, ¶ 26. The
appellate court considered the fine-fee distinction determinative: “[D]efendant cites cases
applying plain error to challenges regarding the imposition of fines, not fees. As such, we agree
with the State that defendant forfeited review of the issues he raises in this appeal pertaining to
the imposition of fees. Such issues were not raised in the trial court proceedings, are forfeited,
and are not subject to plain-error review.” Id.
¶ 12 ANALYSIS
¶ 13 Before this court, defendant claims that three assessments were erroneously imposed: the
DNA analysis fee, the sheriff’s fee, and the Crime Stoppers assessment. No other assessments
are challenged. Although he concedes that those claims were not preserved by timely objection
in the circuit court or inclusion in a postsentencing motion, defendant submits that error with
respect to those three assessments may be remedied pursuant to the provisions of Rule 615.
¶ 14 Rule 615 provides as follows:
“(a) Insubstantial and Substantial Errors on Appeal. 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.
(b) Powers of the Reviewing Court. On appeal the reviewing court may:
(1) reverse, affirm, or modify the judgment or order from which the appeal
is taken;
(2) set aside, affirm, or modify any or all of the proceedings subsequent to
or dependent upon the judgment or order from which the appeal is taken;
(3) reduce the degree of the offense of which the appellant was convicted;
(4) reduce the punishment imposed by the trial court; or
(5) order a new trial.” Ill. S. Ct. R. 615 (eff. Jan. 1, 1967).
¶ 15 In order to preserve a claim of sentencing error, both a contemporaneous objection and a
written postsentencing motion raising the issue are required. People v. Hillier, 237 Ill. 2d 539,
544 (2010); see also 730 ILCS 5/5-8-1(c) (West 2008) (“[a] defendant’s challenge to the
correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written
motion filed within 30 days following the imposition of sentence”). “Under the plain-error
rule, codified in Supreme Court Rule 615, ‘[a]ny error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded’ unless the appellant demonstrates plain
2
Neither party disputes the character of the state’s attorney automation fee before this court.
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error.” People v. Leach, 2012 IL 111534, ¶ 60 (quoting Ill. S. Ct. R. 615 (eff. Jan. 1, 1967)).
Pursuant to the plain-error doctrine, a reviewing court may address a forfeited claim in two
circumstances: “ ‘(1) where 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 and (2) where a clear or obvious error occurred and
that 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. Hood,
2016 IL 118581, ¶ 18 (quoting People v. Belknap, 2014 IL 117094, ¶ 48). The initial step
under either prong of the plain-error doctrine is to determine whether the claim presented on
review actually amounts to a “clear or obvious error” at all. People v. Staake, 2017 IL 121755,
¶ 33.
¶ 16 Before we take that initial step, however, we pause to consider what is actually in
controversy here.
¶ 17 The State suggests that defendant’s challenges to the DNA identification fee and the Crime
Stoppers “fine” are moot “because there is no effectual relief to be granted: defendant’s DNA
identification fee does not exist, even as a scrivener’s error in the clerk’s electronic accounts
receivable records, and his Crime Stoppers fine was entirely offset by presentence custody
credits.” The State notes, and the record confirms, that the circuit court in fact assessed no
DNA identification fee, and the State represents—without contradiction—that the circuit clerk
was contacted by an attorney for the State and has corrected its electronic accounts receivable
records to remove the erroneous reference to “the unassessed fee.” In short, there is no fee to
vacate. Moreover, the State now concedes it was error for the circuit court to impose a Crime
Stoppers “fine,” pursuant to section 5-6-3(b)(13) of the Unified Code of Corrections (730
ILCS 5/5-6-3(b)(13) (West 2012)), because, as noted in People v. Jernigan, 2014 IL App (4th)
130524, ¶ 48—among other cases—that “fine” may be imposed only as a condition of
probation. However, the State argues that erroneous imposition of that assessment is moot
because it is in fact a fine entirely offset by defendant’s presentence custody credits. In light of
the foregoing considerations, i.e., correction and offset, respectively, the State argues that
issues relating to the DNA assessment and the Crime Stoppers assessment are moot.
¶ 18 In his reply brief, the defendant first acknowledges that the DNA fee has been vacated,
though defendant notes the manner in which it was done—at the request of an attorney for the
State—and expresses concerns over reliance upon the State in future cases where a DNA fee is
improperly assessed a second time following a prior DNA submission and fee. Though
defendant concedes that this issue is moot, he argues that this court should consider the issue
under the public interest exception to the mootness doctrine. Defendant then notes that the
State concedes the imposition of a Crime Stoppers “fine” was unauthorized, and defendant
agrees with the State’s assertion that his presentence custody credit covered his applicable
fines, including the Crime Stoppers “fine.” In light of those accords, defendant necessarily
agrees with the State’s assessment that this issue is moot. Defendant requests that we also
consider this issue under the public interest exception to the mootness doctrine.
¶ 19 An issue on appeal is moot where it no longer presents an actual controversy. Cf. In re J.T.,
221 Ill. 2d 338, 349 (2006). Reviewing courts will not decide moot or abstract questions or
render advisory opinions. Id. A court of review may, however, review an otherwise moot issue
pursuant to the public interest exception to the mootness doctrine. Id. at 350. The narrowly
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construed public interest exception to the mootness doctrine requires that (1) the question
presented is of a public nature, (2) a need exists for an authoritative determination of the
question for the future guidance of public officers, and (3) the question is likely to recur. In re
Jarquan B., 2017 IL 121483, ¶ 17. We find that the public interest exception to the mootness
doctrine does not warrant any meaningful discussion of the DNA fee issue, for which
defendant could receive no further relief, and it merits only a brief discussion of the Crime
Stoppers assessment. We begin with those issues.
¶ 20 First, with respect to the DNA assessment—well, there never was a DNA fee assessed by
the court. The judgment sheet titled “Felony Fines, Costs and Assessments,” dated the day of
the sentencing hearing and signed by the sentencing judge, clearly marked—as should be the
procedure in all cases—the fines, fees, and costs the judge imposed. The judge left blank the
line associated with the “$250 DNA Analysis Fee.” This court has affirmed and reaffirmed, in
a succession of recent cases, the principle that the circuit clerk’s assessment of a fee not
authorized by the circuit court does not reflect the judgment of the court. See People v.
Gutierrez, 2012 IL 111590, ¶¶ 21-24; People v. Hardman, 2017 IL 121453, ¶ 55; People v.
Vara, 2018 IL 121823, ¶¶ 25, 28. No one now disputes that the erroneous DNA fee entry in
this case has been deleted from the circuit clerk’s electronic accounts receivable records. No
further relief can be afforded defendant. Moreover, there is no question that a defendant who,
like this defendant, is already in the DNA database cannot be ordered to pay another DNA
analysis fee. See People v. Marshall, 242 Ill. 2d 285, 303 (2011) (“[S]ection 5-4-3 authorizes a
trial court to order the taking, analysis and indexing of a qualifying offender’s DNA, and the
payment of the analysis fee only where that defendant is not currently registered in the DNA
database.”). Thus, the second criterion for invocation of the public interest exception is lacking
here: there is no need for “an authoritative determination of the question *** for the future
guidance of public officers.” See In re Shelby R., 2013 IL 114994, ¶ 16. Marshall provides the
guidance and the pertinent authority.
¶ 21 In our view, the same deficiency would seem to militate against public interest
consideration of the circumstances requisite to the Crime Stoppers assessment. It should be
self-evident to all that the section 5-6-3 assessment does not apply here. All that is required is
that one actually look at the authorizing statute. A look at the heading of section 5-6-3 tells us
that it pertains to “Conditions of Probation and of Conditional Discharge.” Subsection 13 sets
forth one of those conditions, but it does not apply unless the defendant has been sentenced to
probation or conditional discharge. This defendant was not so sentenced; hence, subsection 13
obviously does not apply to him. We strongly encourage state’s attorneys, defense counsel,
and sentencing judges to look at the authorizing statutes before the court imposes attendant
fines and fees. The circumstances for application of this fine seem straightforward enough:
either incarceration (no assessment) or community-based disposition (potential assessment).
See generally People v. Goossens, 2015 IL 118347, ¶ 10 (“This court has repeatedly
interpreted section 5-6-3(b) of the Code (730 ILCS 5/5-6-3(b) (West 2010)) to mean a court
may in its discretion require a probationer to comply with any of the enumerated conditions”
therein. (Emphases added.)) Since the parties agree that the assessment should not have been
imposed in the first place, it does not matter here what it is—fine or fee.
¶ 22 That brings us to the assessment actually contested in this case: the sheriff’s fee.
Defendant’s contention that the sheriff’s fee—imposed pursuant to section 4-5001 of the
Counties Code (55 ILCS 5/4-5001 (West 2012)), as permissibly increased by county
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ordinance—was erroneously excessive. The basis for defendant’s argument is that the Adams
County ordinance, which increased the amount that could be charged for various services
performed by the sheriff, did not specifically address the service of subpoenas and the fee for
return of process served. Thus, defendant argues that those services should have been charged
at the lower statutory rate.3 In brief, the State’s contention is that the language of the county
ordinance could be construed to subsume service of subpoenas and return of process and that
was the intent of county officials when they enacted the ordinance.
¶ 23 Defendant bears the burden of demonstrating a clear or obvious error. People v. McLaurin,
235 Ill. 2d 478, 497-98 (2009). He has not carried that burden.
¶ 24 Defendant’s argument that the sheriff’s fee exceeded allowable limits is premised upon the
contention that the Adams County ordinance (Adams County, Ill., Ordinance to Increase Fees
in the Sheriff’s Office (Oct. 11, 2011)) that purported to raise the sheriff’s fees again in
2011—after they had been increased in 2003 above the monetary limits set forth in the
applicable statute—was ineffective to increase the fees for “subpoenas” and “criminal
process” because neither term was specifically used in the 2011 ordinance. 4 The enacting
ordinance and the accompanying cost study required for the fee increase refer only to “civil
process service and return.” In the 2011 ordinance, the then “current fee amount” for that
service was listed as $30, with a “proposed new price” of $40, which was adopted by the
county board. There is, in the ordinance, no breakdown for types of service beyond “civil
process,” “tax notice,” and “warrant/body attachment,” whereas section 4-5001, the base
statutory provision, includes an extensive list of specific categories of service. See 55 ILCS
5/4-5001 (West 2012). Although defendant, in his reply brief, instructs us on the difference
between criminal and civil process, the statute does not draw a generic distinction between
“civil” and “criminal” process. For example, there is no differentiation between subpoenas
served in civil and criminal cases.
¶ 25 The State argues that the term “civil process,” as employed in the ordinance and
accompanying cost study, is intended to—and does in fact—subsume service of subpoenas in
criminal cases. The State notes that the term “civil process” is defined in the cost study
attached to the ordinance and is explicitly “made a part [t]hereof.” The State claims that term is
defined as “service of all papers except tax notices and warrants.” That is a somewhat loose
interpretation of the definition in the cost study. However, the cost study does state: “Papers of
the same priority that are served using the same method were classified generically as ‘Civil
Process’ and the cost of activity was determined as a group.”
¶ 26 This court’s primary objective in interpreting a statute or ordinance is to ascertain and give
effect to the intent of the legislative body. Henderson Square Condominium Ass’n v. LAB
Townhomes, LLC, 2015 IL 118139, ¶ 67. What was true 64 years ago is still true today: “All
laws should receive a sensible interpretation, and [an] *** ordinance will not be so literally
construed as to produce an absurd result which, even though within its letter, is contrary to the
obvious legislative intent.” Village of Itasca v. Luehring, 4 Ill. 2d 426, 429 (1954). We do not
3
The statutory rate for service of a subpoena is $10 and $5 for return of process. 55 ILCS 5/4-5001
(West 2012).
4
There is no copy of the 2003 ordinance in the record, so we have no way of knowing what
language was employed therein.
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believe that the county board intended that service of “civil process” be compensated, under
the most recent fee enhancement ordinance, at $40, while “criminal process” and all subpoenas
are compensated at $10, the amount set forth in the base statute. It appears to us that the
umbrella term, “civil process,” is sufficient, as defined in the ordinance, to cover the fees
charged here. If it were necessary to read the terms at issue into the ordinance, we would do so
using our analogous authority with respect to statutory omission. See People v. Masterson, 207
Ill. 2d 305, 329 (2003) (“When the intent of the legislature is otherwise clear, the judiciary
possesses the authority to read language into a statute which has been omitted through
legislative oversight.”).
¶ 27 If an error has been made, it would seem it is, as the State argues, one in defendant’s favor.
It appears that some of the charges for served subpoenas were entered at the previous rate of
$30.5 Defendant does not challenge the prior ordinance.6 He has not demonstrated error.
¶ 28 In sum, pursuant to the State’s confession of error, we vacate the Crime Stoppers
assessment, and we accept the State’s representation—undisputed by defendant—that there is
no DNA fee assessed in the circuit clerk’s database. There, of course, never was a judicially
imposed assessment in that regard. In light of the foregoing circumstances, the appellate court
judgment is modified to the extent that the Crime Stoppers assessment is vacated. In all other
respects, as regards issues actually raised before this court, concerning judicially imposed
assessments, the judgment of the appellate court is affirmed.7
¶ 29 Appellate court judgment affirmed as modified.
5
The charge of $30 for the service of 10 subpoenas and $40 for the remaining 5 would, as the State
points out, account for the total sheriff’s fee of $515, when “the one dollar for the one-mile round trip
per subpoena” is included.
6
Defendant opines that “the State cites no authority providing for assessing a Sheriff’s fee pursuant
to a superceded version of an ordinance, or otherwise allowing for a $31 fee.” In light of our finding that
the 2011 ordinance permitted a charge of $40 for service and return of each subpoena, we deem it
unnecessary to respond to defendant’s argument that a $30 charge in his favor was error. What relief
could we provide? Moreover, since defendant has not provided a copy of the 2003 ordinance, we have
no way of knowing what language was employed in that ordinance, such that the 2011 enactment would
be, in defendant’s words, “superceding.”
7
In passing, we welcome the enactment of Public Act 100-987 (eff. in part July 1, 2018, in part July
1, 2019), which will bring to sentencing assessments much needed simplicity and transparency that will
inure to the benefit of the parties and courts. The Public Act, laudably, will also empower the
sentencing courts to grant payment waivers in those circumstances where that relief is warranted.
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