People v. Barbosa

NO. 4-04-1071 Filed: 5/22/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of Ford
v. ) County
LUIS BARBOSA, ) No. 04CF56
Defendant-Appellant. )
) Honorable
) Stephen R. Pacey,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In November 2004, a jury convicted defendant, Luis
Barbosa, of domestic battery (720 ILCS 5/12-3.2(a)(1) (West
2004)). The trial court later sentenced him to 18 months in
prison and ordered him to pay fees and costs, including $750 in
public-defender fees.
Defendant appeals, arguing only that the trial court
erred by ordering him to pay the $750 public-defender fee without
considering his ability to pay. Because we agree, we vacate that
part of the trial court's sentencing order and remand for a
hearing on defendant's ability to pay for such services, pursuant
to section 113-3.1 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/113-3.1 (West 2004)).
I. BACKGROUND
In November 2004, a jury convicted defendant of domes-
tic battery, and the trial court later sentenced him as stated.
At the conclusion of a December 2004 hearing on defendant's
motion to reconsider his sentence, the trial court denied his
motion and the following colloquy occurred:
"THE COURT: *** [Defense counsel], the
only thing that remains is the amount of time
you have in this case. So, I can make an
assertion of the amount of reimbursement of
the [p]ublic[-][d]efender fees.
[DEFENSE COUNSEL]: I mean, the trial
and--
THE COURT: I am aware of that. You
have an estimate of the amount of time that
you have invested in this case?
[DEFENSE COUNSEL]: Oh, I would say it
would be[,] given the trial[,] in excess of
15 hours.
THE COURT: Okay. [Defendant], any
reason why the amount of $750 for reimburse-
ment of Ford County [p]ublic[-][d]efender
fees is not an appropriate amount?
[DEFENDANT]: Excuse me?
THE COURT: Any reason why the figure of
$750 for reimbursement to the Ford County
[p]ublic[-][d]efender fees is not an appro-
priate amount?
[DEFENDANT]: Sure. It is not an appro-
priate amount.
THE COURT: I think you are not happy
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with the result but the time involved more
than just--
[DEFENDANT]: There was no time
involved[,] just the little bit that he
claimed here for trial. That was it.
THE COURT: Okay.
Well,
you
ackno
wledg
e
that
we
had
the
bette
r
part
of a
day
in
trial
.
All
right
.
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[DEFENDANT]: The better part of a day?
THE COURT: Pardon.
[DEFENDANT]: Is that what you said, a
better part of a day in trial?
THE COURT: Do you think you can hire an
attorney for preparation for trial and a
day's worth of time or a half day's worth of
trial for $750, sir?
[DEFENDANT]: You been doing everything
you guys want to. Certainly, [y]our [h]onor,
you go ahead. I am at the mercy of this
[c]ourt. So you go ahead.
THE COURT: [Defendant], I asked you a
question. It's a simple answer. Do you
think you can hire an attorney for that, to
perform or defend you in this case? The
record reflects--[defendant] any other argu-
ment you want [to make] regarding the reason-
ableness of this fee? Any other argument or
estimate you want to make regarding the rea-
sonableness of that amount?
[DEFENDANT]: I want to appeal.
THE COURT: I am going to shortly advise
you of your right to appeal. This is your
opportunity to--
[DEFENDANT]: What opportunity, [y]our
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[h]onor? Your [h]onor, I had no opportunity
here in this room. All my rights have been
violated in this [c]ourt. What opportunity
did I have here?
THE COURT: [Defendant], one more time.
You want to make any other statement, argu-
ment, objections to the amount of $750 as
reasonable?
[DEFENDANT]: Yeah, I object to the
$750.
THE COURT: All right. What's your
objection to it?
[DEFENDANT]: How many hours--I mean,
how many hours did he work with me on this?
THE COURT: You heard [defense coun-
sel's] representation of the total amount of
time.
[DEFENDANT]: The record in this case
reflects and then he was a [c]ourt[-
]appointed attorney. How can I pay for a
[c]ourt[-]appointed attorney?
THE COURT: [Defendant], you were admon-
ished at the time I appointed [defense coun-
sel] that you would be required to reimburse
the county for all or part of the cost for
your defense.
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[DEFENDANT]: Uh-huh.
THE COURT: So, you have anything else
you want to tell me why, about why you do not
think that's a reasonable figure for time
expended by--
[DEFENDANT]: The 15 hours. I don't
believe it was 15 hours that he worked with
me on this.
THE COURT: Well, do you acknowledge
that we were here on the 15th to pick a jury,
15th of November and picked a jury; correct?
[DEFENDANT]: Yeah.
THE COURT: Okay. And then we were here
on the 17th?
[DEFENDANT]: Which was?
THE COURT: For a jury trial. Correct,
correct, [defendant]?
[DEFENDANT]: I plead the 5th on this
one, [y]our [h]onor. I am, I am not going to
say--I am not going to answer anymore [sic]
questions.
THE COURT: Okay. Well, the record then
reflects that you have declined an opportu-
nity to make any further argument or any
objections to the fees. All right. $750 is
more than reasonable for [p]ublic[-]
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[d]efender fees reimbursement in this case.
All right."
The court then advised defendant of his appeal rights and the
hearing concluded.
This appeal followed.
II. THE TRIAL COURT'S ORDER THAT DEFENDANT
PAY $750 FOR HIS PUBLIC DEFENDER
Defendant argues that the trial court erred by ordering
him to pay a $750 public-defender fee without considering defen-
dant's ability to pay. We agree.
Section 113-3.1(a) of the Code provides, in pertinent
part, as follows:
"Whenever *** the court appoints counsel
to represent a defendant, the court may order
the defendant to pay to the [c]lerk of the
[c]ircuit [c]ourt a reasonable sum to reim-
burse either the county or the State for such
representation. In a hearing to determine
the amount of the payment, the court shall
consider the affidavit prepared by the defen-
dant under [s]ection 113-3 of this Code and
any other information pertaining to the de-
fendant's financial circumstances which may
be submitted by the parties." 725 ILCS
5/113-3.1(a) (West 2004).
In 1997, our supreme court held that "[t]he language of
[s]ection 113-3.1(a) clearly requires the trial court to conduct
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a hearing into the defendant's financial resources as a precondi-
tion to ordering reimbursement." People v. Love, 177 Ill. 2d
550, 555, 687 N.E.2d 32, 35 (1997). Specifically, (1) "[t]he
hearing must focus on the foreseeable ability of the defendant to
pay reimbursement as well as the costs of the representation
provided," and (2) the court must "find an ability to pay before
[ordering] the defendant to pay reimbursement for appointed
counsel." Love, 177 Ill. 2d at 563, 687 N.E.2d at 38. In
addition, in People v. Johnson, 297 Ill. App. 3d 163, 164-65, 696
N.E.2d 1269, 1270 (1998), this court held that the defendant must
(1) have notice that the trial court is considering imposing a
payment order under section 113-3.1 of the Code and (2) be given
the opportunity to present evidence or argument regarding his
ability to pay and other relevant circumstances.
In People v. Bass, 351 Ill. App. 3d 1064, 1069, 815
N.E.2d 462, 467 (2004), at the conclusion of the defendant's
sentencing hearing, the trial court (1) announced, "'[c]ause
called for hearing as to court-appointed attorney fees'"; (2)
asked the defendant where he was employed and how much he earned;
and (3) assessed a court-appointed attorney fee of $500 against
the defendant. On appeal, this court vacated the trial court's
order imposing the $500 payment, upon concluding that (1) the
only notice the defendant received was the court's call for a
hearing and the two questions the court asked the defendant about
his employment; (2) the defendant was not given an opportunity to
present evidence regarding the assessment; and (3) the record did
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not show that the court considered defendant's financial affida-
vit. Bass, 351 Ill. App. 3d at 1070, 815 N.E.2d at 468.
The hearing conducted in this case was even further off
the mark than the one conducted in Bass. Here, (1) the trial
court never (a) stated that defendant's ability to pay was at
issue nor (b) asked any questions of defendant that would prompt
him to address his financial condition; (2) the court's colloquy
with defendant focused solely on the reasonableness of the
attorney fee; (3) the record contains no indication that the
court considered the defendant's financial affidavit or any other
evidence of his financial resources; (4) the record does not
contain a financial affidavit or any documentation indicating
defendant's financial condition; and (5) the court did not make a
finding regarding defendant's ability to pay. We thus conclude
that the court failed to conduct a hearing that complies with
section 113-3.1(a) of the Code and Love.
In so concluding, we note that an adequate Love hearing
need not be lengthy or complex. As this court stated in Johnson:
"[The] statutorily required hearing need only
(1) provide the defendant with notice that
the trial court is considering imposing a
payment order, pursuant to section 113-3.1 of
the Code, and (2) give the defendant an op-
portunity to present evidence regarding his
ability to pay and other relevant circum-
stances, and otherwise to be heard regarding
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whether the court should impose such an or-
der." Johnson, 297 Ill. App. 3d at 164-65,
696 N.E.2d at 1270.
Accordingly, after the defendant is informed of the nature of the
proceeding, the court should (1) receive evidence on the defen-
dant's ability to pay, (2) make a finding thereon, (3) state for
the record what evidence the court considered in making its
finding and (4) if the ability to pay has been found, determine
and set a reasonable reimbursement figure. We note that 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 presen-
tence investigation report that contains pertinent financial
data. If the court does so, it should state in its finding that
those materials were relied on in reaching its determination.
Finally, we note that the trial court in this case did
not err by considering the reasonableness of the public-defender
fee. Rather, the court erred by failing to consider at all what
should be the primary focus of a Love hearing--namely, the
defendant's ability to pay.
III. CONCLUSION
For the reasons stated, we affirm defendant's convic-
tion and sentence, vacate that portion of the trial court's
sentencing order imposing the $750 public-defender fee, and
remand for a hearing in conformity with section 113-3.1 of the
Code.
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Affirmed in part and vacated in part; cause remanded
with directions.
APPLETON and KNECHT, JJ., concur.
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