People v. Sulton

NO. 4-08-0828 Filed 10/15/09
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
ALPHA O. SULTON, ) No. 07CF162
Defendant-Appellant. )
) Honorable
) James E. Souk,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In September 2007, defendant, Alpha O. Sulton, entered
a partially negotiated guilty plea as to one count of aggravated
driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F)
(West 2006)). The trial court later sentenced defendant to seven
years' imprisonment and assessed numerous fines, fees, and costs,
including a $10 drug-court assessment pursuant to section 5-
1101(d-5) of the Counties Code (55 ILCS 5/5-1101(d-5) (West
2006)).
In November 2007, defendant filed a motion to withdraw
guilty plea and reconsider sentence, which the trial court
denied. Defendant appealed, and we remanded his case to the
trial court for defense counsel's failure to comply with Supreme
Court Rule 604(d) (210 Ill. 2d R. 604(d)). People v. Sulton, No.
4-08-0073 (May 12, 2008) (unpublished summary order under Supreme
Court Rule 23(c)(2)).
On remand, defendant filed an amended motion to with-
draw guilty plea and reconsider sentence, which the trial court
denied. Defendant appeals, arguing he is entitled to credit
against the $10 drug-court assessment imposed by the court. We
agree, affirm as modified, and remand with directions.
I. BACKGROUND
On February 3, 2007, while under the influence of
cannabis, defendant drove his car into a utility pole, killing
Jose Ezpinoza, the passenger in the vehicle. The State charged
defendant with one count of aggravated driving under the influ-
ence, a Class 2 felony (625 ILCS 5/11-501(d)(1)(F) (West 2006)).
In exchange for a 10-year sentence cap, defendant pleaded guilty
to the charge. The trial court later sentenced defendant as
stated and awarded him (1) 273 days' sentencing credit and (2)
$1,365 credit toward his fines for time spent in presentence
custody. However, the notice filed by the McLean County circuit
clerk reveals defendant's custody credit was not applied toward
his $10 drug-court assessment.
In November 2007, defendant filed a motion to withdraw
plea and reconsider sentence, alleging (1) his plea was involun-
tary and (2) his sentence was excessive. The trial court denied
the motion, and defendant appealed. On appeal, this court
remanded because defense counsel failed to file a certificate
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indicating counsel reviewed the transcript of the guilty-plea
hearing as required by Supreme Court Rule 604(d). Sulton, No. 4-
08-0073.
On remand, defendant filed an amended motion to with-
draw plea and reconsider sentence, alleging (1) he felt pressured
into entering his guilty plea and did not understand the conse-
quences of pleading guilty and (2) his sentence was excessive.
The trial court denied the motion.
This appeal followed.
II. ANALYSIS
On appeal, defendant contends he is entitled to credit
against his $10 drug-court assessment for the time he spent in
pretrial custody because the assessment constituted a fine and
not a fee. Specifically, defendant alleges that because he did
not face prosecution in drug court, the assessment was not
compensatory in nature and cannot be labeled as a fee. In
response, the State argues defendant does not deserve credit
toward his drug-court assessment because the assessment was a fee
in that it was (1) nonpunitive and (2) rationally related to
defendant's conviction. We agree with defendant.
The issue of monetary credit against a defendant's fine
cannot be waived and may be raised for the first time on appeal.
People v. Woodard, 175 Ill. 2d 435, 457, 677 N.E.2d 935, 945-46
(1997). Whether a defendant received proper credit against his
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fine is a question of law that we review de novo. People v.
Andrews, 365 Ill. App. 3d 696, 698, 850 N.E.2d 888, 890 (2006).
Section 110-14(a) of the Code of Criminal Procedure of
1963 (Criminal Code) states that "[a]ny person incarcerated on a
bailable offense who does not supply bail and against whom a fine
is levied on conviction of such offense shall be allowed a credit
of $5 for each day so incarcerated upon application of the defen-
dant." 725 ILCS 5/110-14(a) (West 2006). However, monetary
credit under section 110-14(a) offsets only fines, not fees.
People v. Jones, 223 Ill. 2d 569, 580, 861 N.E.2d 967, 974
(2006). Thus, our analysis turns to whether the $10 drug-court
assessment qualifies as a fee or a fine. This issue appears
relatively straightforward. However, the cases take many oppos-
ing approaches. In People v. Williams, 142 Ill. App. 3d 266,
274-75, 491 N.E.2d 941, 946 (1986), overruled on other grounds by
People v. Ferguson, 132 Ill. 2d 86, 99, 547 N.E.2d 429, 434
(1989), the appellate court found the assessment to be a fee
based upon the statutory language that referred to the assessment
as other than a fine.
"A reading of the statutory language in
section 5-9-1(c) of the Unified Code of Cor-
rections (Ill. Rev. Stat. 1983, ch. 38, par.
1005-9-1(c)) in conjunction with section 9.1
of 'An act to establish the Illinois Local
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Government Law Enforcement Officers Training
Board ***' (Ill. Rev. Stat. 1983, ch. 85,
par. 509.1), setting forth the means of dis-
tribution of the funds, reveals that the dis-
puted amount is referred to as other than a
fine. For example, every fine shall include
an amount payable to the Fund (Ill. Rev.
Stat. 1983, ch. 38, par. 1005-9-1(c)); such
amounts payable shall be collected in addi-
tion to the fines and costs (Ill. Rev. Stat.
1983, ch. 38, par. 1005-9-1(c)); and, in ad-
dition to every fine imposed an additional
assessment payable to the Fund shall be im-
posed. Ill. Rev. Stat. 1983, ch. 38, par.
509.1.
The above statutory language evinces the
legislature's intent to distinguish the
amount payable to the Fund from any fines
imposed. Furthermore, the purpose of provid-
ing financial assistance to the training of
law enforcement personnel (Ill. Rev. Stat.
1983, ch. 85, par. 509) would be thwarted by
subjecting the amounts payable to the Fund to
the credit provisions of section 110-14 of
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the Code of Criminal Procedure of 1963 (Ill.
Rev. Stat. 1983, ch. 38, par. 110-14). We
conclude that defendant is not entitled to
credit against the amount payable to the
Fund, imposed under section 5-9-1(c) of the
Unified Code of Corrections (Ill. Rev. Stat.
1983, ch. 38, par. 1005-9-1(c)) for time
served prior to conviction." Williams, 142
Ill. App. 3d at 274-75, 491 N.E.2d at 946.
See also People v. Gathing, 334 Ill. App. 3d 617, 778 N.E.2d 215
(2002).
However, in People v. Brown, 242 Ill. App. 3d 465, 610
N.E.2d 776 (1993), the appellate court found the assessment to be
a fine because the statutory language did not include the prohi-
bition against the offset for time served.
"We begin by noting that the $500 as-
sessment was imposed pursuant to section
411.2 of the Illinois Controlled Substances
Act (720 ILCS 570/411.2 (West 1992)). Sec-
tion 411.2 does not specifically state that
assessments cannot be offset by the general
$5-per-day credit against fines provided for
in section 110-14 of the Code of Criminal
Procedure of 1963. (See 725 ILCS 5/110-14
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(West 1992).) Had the legislature clearly
intended to exclude section 411.2 from such
credits, the legislature could have specifi-
cally made such an exclusion. (See, e.g.,
725 ILCS 240/10(c) (West 1992).) Therefore,
we conclude that Brown's $5-per-day credit
for pretrial incarceration which is allowed
by section 110-14 should have been used to
offset his $500 assessment." (Emphasis in
original.) Brown, 242 Ill. App. 3d at 466,
601 N.E.2d at 777.
Regardless, the supreme court in an unusual twist of
logic found a fee to be a fine when interpreting a statute with
nearly identical language as in Brown and the case sub judice.
"As defendant notes, the statute does call
the charge a 'fee.' This constitutes strong
evidence as to how the charge should be char-
acterized. However, as previously noted, the
label attached by the legislature is not nec-
essarily definitive. See Crocker, 99 Ill. 2d
at 452 (a charge labeled a 'fee' was 'in re-
ality a tax'); Elizalde, 344 Ill. App. 3d at
682. We note that the statute is ambiguous,
in that although the statute does label the
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charge a fee it also states that the charge
'shall not be considered a part of the fine
for purposes of any reduction in the fine for
time served either before or after sentenc-
ing.' If the charge were truly a fee, there
would be no need for the legislature to have
included this language because, as the par-
ties agree, the credit for presentence incar-
ceration can only reduce fines, not fees.
See 725 ILCS 5/110-14 (West 2004). Thus to
conclude the charge is a fee would render
this section of the statute superfluous, a
construction to be avoided. Jones, 214 Ill.
2d at 193; Bonaguro, 158 Ill. 2d at 397."
Jones, 223 Ill. 2d at 599, 861 N.E.2d at 985.
Ordinarily, the statutory language "added to every fine" an
"additional penalty" and the specific exclusion of the statutory
credit for time served are considered to reflect creation of a
fee, not a fine. See Williams, 142 Ill. App. 3d at 274-75, 491
N.E.2d at 946. "Such additional penalty shall not be considered
a part of the fine for purposes of any reduction in the fine for
time served either before or after sentencing." 730 ILCS 5/5-9-
1(c) (West 2006); see Brown, 242 Ill. App. 3d 465, 610 N.E.2d
776.
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This court is, nonetheless, bound to follow People v.
Graves, No. 106541 (September 24, 2009), ___ Ill. 2d ___, ___
N.E.2d ___, and Jones, 223 Ill. 2d 569, 861 N.E.2d 967.
This sentencing dilemma places an enormous burden on
the trial courts. The trial courts must now address in each
criminal case whether each of the myriad of fees and fines is a
fee or a fine as to each defendant depending on the conviction,
the sentence, and the penalty. Perhaps the legislature will see
fit to correct this confusion.
Regardless, the supreme court has found that the nature
of an assessment determines whether the assessment constitutes a
fine or a fee. Fines are "'pecuniary punishment[s] imposed as
part of a sentence on a person convicted of a criminal offense.'"
Jones, 223 Ill. 2d at 581, 861 N.E.2d at 975, quoting People v.
White, 333 Ill. App. 3d 777, 781, 776 N.E.2d 836, 839 (2002).
Conversely, fees do not "'punish a defendant in addition to the
sentence he received'"; rather, a fee is a collateral consequence
of the defendant's conviction that reimburses the State for an
expense related to the defendant's prosecution. Jones, 223 Ill.
2d at 581, 861 N.E.2d at 975, quoting White, 333 Ill. App. 3d at
781, 776 N.E.2d at 839.
At issue in the case at bar is the $10 drug-court
assessment imposed upon defendant by the trial court pursuant to
section 5-1101(d-5) of the Counties Code. Specifically, section
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5-1101(d-5) authorizes trial courts to impose "[a] $10 fee to be
paid by the defendant on a judgment of guilty or a grant of
supervision under [s]ection 5-9-1 of the Unified Code of Correc-
tions to be placed in the county general fund and used to finance
the county mental[-]health court, the county drug court, or
both." 55 ILCS 5/5-1101(d-5) (West 2006).
Although the language of section 5-1101(d-5) catego-
rizes the drug-court assessment as a "fee," defendant argues the
assessment actually operates as a fine. In determining whether
an assessment is a fee or a fine, the label used by the legisla-
ture is strong evidence as to the nature of the charge. People
v. Paige, 378 Ill. App. 3d 95, 101-02, 880 N.E.2d 675, 682
(2007). However, "the actual attributes of the charge at issue
must [also] be examined in resolving the question as to whether
the charge is in fact a fee or a fine." Paige, 378 Ill. App. 3d
at 102, 880 N.E.2d at 682. In doing so, the primary inquiry is
whether the assessment "seek[s] to compensate the [S]tate for any
costs incurred as the result of prosecuting the defendant."
Jones, 223 Ill. 2d at 600, 861 N.E.2d at 986. If the assessment
is compensatory in nature, it constitutes a fee. Therefore, even
if the statutory language labels an assessment as a "fee," the
assessment still operates as a fine if it fails to reimburse the
State for actual costs incurred in prosecuting the defendant.
See Graves, No. 106541, slip op. at 5, ___ Ill. 2d at ___, ___
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N.E.2d at ___ (holding that a $10 mental-health-court assessment
and a $5 youth diversion/peer-court assessment, though labeled in
the statute as "fees," were actually fines because they did not
seek to compensate the State "for any costs incurred as the
result of prosecuting the defendant"); Jones, 223 Ill. 2d at 599,
861 N.E.2d at 985 (holding that despite the General Assembly
labeling a $5 spinal-cord-fund charge as a "fee," the charge was
actually a fine because it failed to compensate the State for
costs incurred in prosecuting the defendant); Paige, 378 Ill.
App. 3d at 103, 880 N.E.2d at 683 (holding the mental-health
court assessment imposed under section 5-1101(d-5) of the Coun-
ties Code constituted a fine despite its statutory label as a
"fee" because the assessment went to funding mental-health court
costs for the county and did not relate specifically to the
defendant's prosecution).
In the case at bar, defendant maintains he "was not
prosecuted in the county's drug or mental[-]health court system"
and therefore the $10 drug-court assessment did not apply to the
prosecution of his case. The State responds that because defen-
dant was charged with aggravated DUI and two other drug-related
offenses, "the drug[-]court fee is *** rationally related to
defendant's conviction" and thus constitutes a fee. We agree
with defendant.
The State's "rationally related" argument is improper
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in distinguishing a fee from a fine. Though the charges against
defendant relate to drug abuse, the State's argument improperly
borrows from the test used to determine whether a fee is consti-
tutional. See People v. Gildart, 377 Ill. App. 3d 39, 41, 879
N.E.2d 410, 413 (2007) (in deciding whether a statute imposing a
fee is constitutional, the court must examine whether the fee
"has a reasonable relationship to the public interest being
protected"). Rather, the relevant inquiry is whether the assess-
ment "is intended to reimburse the [S]tate for some cost incurred
in [the] defendant's prosecution." Jones, 223 Ill. 2d at 600,
861 N.E.2d at 986.
Pursuant to the Drug Court Treatment Act, drug-court
programs exist in three capacities: (1) the preadjudicatory drug-
court program, in which the prosecution consents to expediting
"the defendant's criminal case before conviction or before filing
of a criminal case and requires successful completion of the
drug[-]court program as part of the agreement"; (2) the
postadjudicatory drug-court program, in which "the defendant has
admitted guilt or has been found guilty and agrees, along with
the prosecution, to enter a drug[-]court program as part of the
defendant's sentence"; and (3) the combination drug-court pro-
gram, which includes participation in both preadjudicatory and
postadjudicatory drug-court programs. 730 ILCS 166/10 (West
2006). Participation in any drug-court program requires approval
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by the prosecutor and involves community-based treatment. 730
ILCS 166/20(a) (West 2006). Here, the record does not reflect
the trial court considered defendant's eligibility for drug-court
programs during defendant's guilty-plea or sentencing hearings.
Moreover, rather than sentence defendant to community-based
treatment following his conviction, the trial court sentenced
defendant to seven years' imprisonment. Thus, the $10 drug-court
assessment was not related to costs incurred by the State as a
result of defendant's prosecution. As such, the assessment was a
fine, rather than a fee, toward which defendant should receive a
$5-per-day credit pursuant to section 110-14(a) of the Criminal
Code.
As a final matter, we address the State's contention
"the trial court erroneously awarded defendant sentence credit to
which he was not entitled." Specifically, the State claims that
because defendant is not entitled to credit for the day of sen-
tencing in which he was remanded to the Department of Correc-
tions, the court should have awarded defendant 272 rather than
273 days' sentence credit and $1,360 rather than $1,365 monetary
credit for the time defendant spent in presentence custody from
February 3, 2007 (the day of defendant's arrest), to November 1,
2007 (the day the court sentenced defendant). See People v.
Leggans, 140 Ill. App. 3d 268, 270-71, 488 N.E.2d 614, 615
(1986). Defendant concedes this issue, and we thereby order the
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sentencing judgment corrected so reflecting.
III. CONCLUSION
For the reasons stated, we affirm as modified and
remand this cause to the trial court for issuance of an amended
sentencing judgment to reflect application of defendant's mone-
tary credit to the $10 drug-court assessment and a reduction in
defendant's sentence credit from 273 days to 272 days and mone-
tary credit from $1,365 to $1,360.
Affirmed as modified and cause remanded with direc-
tions.
KNECHT and STEIGMANN, JJ., concur.
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