People v. Chester

Illinois Official Reports
Appellate Court
People v. Chester, 2014 IL App (4th) 120564Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
Caption v. GREGORY CHESTER, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-12-0564
Filed January 28, 2014
Held On appeal from the dismissal of defendant’s postconviction petition as
(Note: This syllabus frivolous and patently without merit, the appellate court rejected
constitutes no part of the defendant’s contentions that he had an absolute right to withdraw his
opinion of the court but petition without prejudice at the first stage of the proceedings pursuant
has been prepared by the to section 2-1009(a) of the Code of Civil Procedure and that the trial
Reporter of Decisions court abused its discretion by failing to rule on his motion to stay
for the convenience of before denying his petition, since section 122-5 of the Post-Conviction
the reader.) Hearing Act, which allows a court to grant defendant leave to
withdraw a petition with the court’s approval, applied to the first stage
of defendant’s proceedings and the trial court’s summary dismissal of
defendant’s petition as frivolous and patently without merit implicitly
denied his request for a stay or withdrawal without any abuse of
discretion; further, the circuit clerk’s assessment of fines was vacated
and the cause was remanded with directions for the trial court to
impose the mandatory fines and direct the appropriate credit for the
fines.
Decision Under Appeal from the Circuit Court of McLean County, No. 07-CF-1069;
Review the Hon. Robert L. Freitag, Judge, presiding.
Judgment Affirmed in part and vacated in part; cause remanded.
Counsel on Michael J. Pelletier, Karen Munoz, and Nancy L. Vincent, all of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
Ronald C. Dozier, State’s Attorney, of Bloomington (Patrick Delfino,
David J. Robinson, and David E. Mannchen, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE KNECHT delivered the judgment of the court, with
opinion.
Presiding Justice Appleton and Justice Harris concurred in the
judgment and opinion.
OPINION
¶1 On March 22, 2012, defendant, Gregory J. Chester, filed a pro se petition under the
Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 to 122-8 (West 2012)).
Four days later, defendant moved to stay the postconviction proceedings to allow him time to
add additional unspecified constitutional arguments he recently found. In his motion,
defendant referenced section 122-5 of the Postconviction Act (725 ILCS 5/122-5 (West
2012)) and stated the trial court had the authority to allow petitioners to withdraw their
petitions. In June 2012, the trial court dismissed defendant’s petition, finding it frivolous and
patently without merit. Defendant appeals, arguing (1) he had a right to withdraw his
postconviction petition without prejudice during the first stage of postconviction
proceedings; (2) the trial court abused its discretion by failing to rule on defendant’s motion
to stay before denying the postconviction petition; and (3) he is entitled to monetary credit
against the Children’s Advocacy Center fee and drug court fee due to the time he spent in jail
awaiting sentencing. We disagree with defendant’s first and second arguments, vacate the
fines referenced in his third argument as assessed by the circuit clerk, and remand with
directions that the trial court impose mandatory fines and credit creditable fines as
appropriate.
¶2 I. BACKGROUND
¶3 In July 2008, defendant was convicted of aggravated battery (McLean County case No.
07-CF-1069) and obstructing justice and resisting arrest (McLean County case No.
07-CF-797). The victim of aggravated battery was a Bloomington police officer who was
driving a marked squad car and wearing his uniform at the time of the offense, October 6,
2007. People v. Chester, 409 Ill. App. 3d 442, 444, 949 N.E.2d 1111, 1113-14 (2011). The
officer was in pursuit of the fleeing defendant when defendant battered him. See Chester, 409
Ill. App. 3d at 444, 949 N.E.2d at 1113-14. In October 2008, the trial court sentenced
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defendant to 12 years’ imprisonment for aggravated battery, to be served consecutively to the
5-year term he received for obstructing justice and 364 days for resisting arrest. On direct
appeal, defendant argued the State improperly commented during closing argument on his
right not to testify and the trial court improperly failed to question jurors during voir dire
pursuant to Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). This court affirmed
defendant’s conviction and sentence. Chester, 409 Ill. App. 3d at 443-44, 949 N.E.2d at
1113.
¶4 On March 22, 2012, defendant filed his pro se petition for postconviction relief. He
argued his constitutional rights were violated because, in part, (1) the police officer failed to
provide evidence of a traffic violation and made a false statement in court; (2) the State, at
trial, failed to prove “anything was broken or fracture[d]”; (3) a juror was familiar with a
witness in the case and did not affirmatively state she could remain impartial; (4) another
juror knew the trial judge; (5) the trial court failed to comply with Illinois Supreme Court
Rule 431(b) (eff. May 1, 2007); and (6) the State improperly commented, during closing
argument, on his right not to testify.
¶5 On March 26, 2012, before the trial court ruled on his petition, defendant filed a “Motion
to Stay Post-Conviction.” In his motion, defendant asked the court to “stay the original
post-conviction or grant him an extension of time for at least 30 to 45 days.” Defendant
asserted the court was authorized to suspend his petition and stated the court could “allow a
defendant to withdraw an initial post-conviction petition” and he could “refile *** and have
it treated as the original.” Defendant asserted, due to his limited library access, he “just found
several constitutional violations” and needed time to place those arguments in his original
petition.
¶6 On June 1, 2012, the trial court dismissed defendant’s petition as frivolous and patently
without merit. The court concluded defendant’s first four allegations of error were forfeited
as they could have been raised on direct appeal but were not. The court found the latter two
allegations of error were raised on direct appeal and relitigation of those issues was barred by
res judicata. The court did not explicitly address defendant’s motion to stay.
¶7 This appeal followed.
¶8 II. ANALYSIS
¶9 A. Defendant Did Not Have the Right To Withdraw His Postconviction Petition
¶ 10 Defendant argues, under section 2-1009(a) of the Code of Civil Procedure (Procedure
Code) (735 ILCS 5/2-1009(a) (West 2012)) he had the absolute right to withdraw his
postconviction petition. Defendant maintains the language in section 122-5 of the
Postconviction Act, stating “[t]he court may in its discretion grant leave, at any stage of the
proceeding prior to entry of judgment, to withdraw the petition” (emphasis added) (725 ILCS
5/122-5 (West 2012)), does not conflict with section 2-1009(a) in these circumstances.
Defendant contends the quoted language from section 122-5 applies only after a trial court
finds the petition not frivolous and patently without merit and then dockets the petition under
section 122-2.1(b) “for further consideration in accordance with Sections 122-4 through
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122-6” (725 ILCS 5/122-2.1(b) (West 2012)). Until that point, defendant urges, section
122-5’s limiting language does not apply and, because the trial court had not dismissed or
docketed his petition under section 122-2.1(b), he was entitled to voluntarily withdraw his
petition under section 2-1009(a).
¶ 11 The State disputes defendant’s contention the trial court should have treated defendant’s
“Motion to Stay Post-Conviction” as a motion to withdraw. The State points out defendant
did not seek to withdraw his petition but instead sought a delay in the proceedings. Defendant
counters he referenced the trial court’s authority to grant a withdrawal in his pro se motion
and contends the court should have treated it as such given his right to withdraw the petition
before it was ruled upon. Whether defendant’s motion should have been treated as a motion
to withdraw or a motion to stay proceedings does not matter. We find defendant had no right
to withdraw his postconviction petition absent court approval.
¶ 12 This issue presents a matter of statutory construction. Our main goal when construing a
statute is to give effect to the legislature’s intent. People v. Glisson, 202 Ill. 2d 499, 504, 782
N.E.2d 251, 255 (2002). We endeavor to apply the plain and ordinary meaning of the
language of the statute. Id. When a statute is unambiguous, we may not add limitations,
exceptions, or other conditions into the statute’s provisions. Id. at 505, 782 N.E.2d at 255.
This court should not read phrases in isolation, but must evaluate a statutory provision as a
whole. Id.¶ 13 Section 2-1009(a) of the Procedure Code authorizes, in civil cases, the voluntary
withdrawal of an action. It provides the following: “The plaintiff may, at any time before trial
or hearing begins, upon notice to each party who has appeared or each such party’s attorney,
and upon payment of costs, dismiss his or her action or any part thereof as to any defendant,
without prejudice ***.” 735 ILCS 5/2-1009(a) (West 2012).
¶ 14 While “postconviction proceedings are civil in nature” (People v. English, 2013 IL
112890, ¶ 14, 987 N.E.2d 371), proceedings under the Postconviction Act are sui generis.
People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 181, 526 N.E.2d 131, 134 (1988).
Provisions of the Procedure Code may be applied to postconviction actions, so long as they
do not conflict with provisions of the Postconviction Act. People v. English, 381 Ill. App. 3d
906, 909-10, 885 N.E.2d 1214, 1217 (2008); see also 725 ILCS 5/122-5 (West 2012) (“The
court may in its discretion make such order as to amendment of the petition or any other
pleading, or as to pleading over, or filing further pleadings, or extending the time of filing
any pleading other than the original petition, as shall be appropriate, just and reasonable and
as is generally provided in civil cases.” (Emphasis added.)).
¶ 15 The Postconviction Act offers “a remedy whereby defendants may challenge their
convictions or sentences for violations of federal or state constitutional law.” People v.
Coleman, 206 Ill. 2d 261, 277, 794 N.E.2d 275, 286 (2002). It establishes a three-stage
process by which a defendant may attain review of a claim his conviction led to a substantial
denial of his constitutional rights. People v. Dopson, 2011 IL App (4th) 100014, ¶ 17, 958
N.E.2d 367. In the first stage, a trial court considers whether the postconviction petition is
frivolous or patently without merit. People v. Andrews, 403 Ill. App. 3d 654, 658-59, 936
N.E.2d 648, 652 (2010). Any petition deemed frivolous and patently without merit must be
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dismissed. 725 ILCS 5/122-2.1(a)(2) (West 2008). If the postconviction petition survives the
first-stage review, it is docketed “for further consideration in accordance with Sections 122-4
through 122-6” (725 ILCS 5/122-2.1(b) (West 2012)). At this stage, the second stage,
counsel is appointed and the pro se petition may be amended. Andrews, 403 Ill. App. 3d at
658, 936 N.E.2d at 653. In addition, the State may answer the petition or seek its dismissal.
725 ILCS 5/122-5 (West 2012). The proceedings advance to the third stage if the State
answers the postconviction petition or the court denies the State’s motion to dismiss. At the
third stage, the postconviction petitioner may submit evidence supporting his claim.
Andrews, 403 Ill. App. 3d at 658-59, 936 N.E.2d at 653; 725 ILCS 5/122-6 (West 2012).
¶ 16 Section 122-5 of the Postconviction Act addresses the issue of when a postconviction
petition may be withdrawn or modified (725 ILCS 5/122-5 (West 2012)). It states the
following:
“Proceedings on petition. Within 30 days after the making of an order pursuant to
subsection (b) of Section 122-2.1, or within such further time as the court may set, the
State shall answer or move to dismiss. In the event that a motion to dismiss is filed
and denied, the State must file an answer within 20 days after such denial. No other or
further pleadings shall be filed except as the court may order on its own motion or on
that of either party. The court may in its discretion grant leave, at any stage of the
proceeding prior to entry of judgment, to withdraw the petition. The court may in its
discretion make such order as to amendment of the petition or any other pleading, or
as to pleading over, or filing further pleadings, or extending the time of filing any
pleading other than the original petition, as shall be appropriate, just and reasonable
and as is generally provided in civil cases.” (Emphasis added.) 725 ILCS 5/122-5
(West 2012).
¶ 17 Section 2-1009(a) of the Procedure Code and section 122-5 of the Postconviction Act
treat withdrawals differently. While section 2-1009(a) allows plaintiffs the right to withdraw
a complaint without court approval (735 ILCS 5/2-1009(a) (West 2012)), section 122-5
requires court approval before a petition may be withdrawn.
¶ 18 This presents the question of which section applies to defendant’s petition. As stated
above, defendant believes section 122-2.1(b) of the Postconviction Act (725 ILCS
5/122-2.1(b) (West 2012)) answers the question. Under section 122-2.1(a), a trial court must
rule on a postconviction petition within 90 days on the issue of whether the petition is
frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2012). Under section
122-2.1(b), if a court finds the petition not frivolous and patently without merit, the petition
is “to be docketed for further consideration in accordance with Sections 122-4 through
122-6.” 725 ILCS 5/122-2.1(b) (West 2012). Defendant interprets this language to mean
sections 122-4 through 122-6, which includes section 122-5’s withdrawal language, apply
only after a postconviction petition advances to the second stage. Defendant further points to
the language of section 122-5 itself, which begins with reference to an order made pursuant
to section 122-2.1(b). 725 ILCS 5/122-5 (West 2012). Defendant emphasizes the absence of
paragraph breaks in section 122-5 shows the legislature’s intent the entire section applies
once the second stage of postconviction proceedings are triggered by an order pursuant to
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section 122-2.1(b). Because, defendant argues, his request to withdraw occurred during the
first stage of proceedings, section 122-5 does not apply and the Procedure Code’s section
2-1009(a) does.
¶ 19 In contrast, the State contends the plain language of section 122-5 shows it applies to
petitions in the first stage of postconviction proceedings. The State emphasizes the language
within section 122-5 that a motion to withdraw may be granted “at any stage of the
proceeding prior to entry of judgment.” 725 ILCS 5/122-5 (West 2012).
¶ 20 While no published decision addresses the exact issue here, the Supreme Court of
Illinois, as defendant acknowledges, concluded section 122-5 applies to first-stage
dismissals. See People v. Harris, 224 Ill. 2d 115, 131, 862 N.E.2d 960, 970 (2007). This
conclusion stems from an analysis of the justices’ majority and dissenting opinions in People
v. Watson, 187 Ill. 2d 448, 719 N.E.2d 719 (1999). In Watson, the court considered the issue
of whether an amended postconviction petition restarted the 90-day period in which a trial
court must consider whether a petition is frivolous or patently without merit. Id. at 450, 719
N.E.2d at 719. The majority ruled that it did without addressing the question of whether an
original postconviction petition could be amended before it advanced to the second stage. Id.In a dissenting opinion, joined by no other justices, Justice Rathje stated the issue resolved by
the majority should not have been addressed because the Postconviction “Act does not allow
amended petitions at the initial stage of post-conviction proceedings.” Id. at 456, 719 N.E.2d
at 723 (Rathje, J., dissenting). Justice Rathje then set forth the same argument asserted by
defendant here. Id. at 457, 719 N.E.2d at 723 (Rathje, J., dissenting).
¶ 21 In Harris, the unanimous court determined “the question of whether section 122-5
applies at the first stage was settled by Watson.” Harris, 224 Ill. 2d at 131, 862 N.E.2d at
970. Before making this finding, the Harris court noted Justice Rathje’s dissenting opinion in
Watson, as well as the fact that no other justice joined in the dissent. Id. The court then
followed up with another sentence showing its decision a trial court has discretion to allow a
petition to be withdrawn at the first stage of postconviction proceedings: “We do not believe,
however, that, simply because the trial court has the discretion at the first stage to allow
amendments to the petition, or to allow the petition to be withdrawn, or to allow the
defendant to plead over, the trial court necessarily abuses that discretion by failing to dismiss
the petition without prejudice when a direct appeal is pending.” Id.¶ 22 Given the Illinois Supreme Court’s decision in Harris finding the applicability of section
122-5 to the first stage “settled,” we conclude defendant did not have an absolute right to
withdraw his postconviction petition under section 2-1009(a) of the Procedure Code. Section
122-5 of the Postconviction Act applied to defendant’s request.
¶ 23 B. The Trial Court Did Not Abuse Its Discretion
¶ 24 Defendant argues the trial court abused its discretion when it did not rule upon his
motion. Defendant contends had the court denied his motion it would have been an abuse of
discretion. He maintains, had he been given more time, he could have amended his
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postconviction claim the police officer lied in court by attaching affidavits, additional facts,
or other proof.
¶ 25 We find the trial court did not err in not explicitly ruling on defendant’s motion. The
Harris decision is instructive. In Harris, a postconviction petitioner argued the circuit court
erred by not expressly ruling on the requests in his prayer for relief, which included a request
for additional “time and leave to amend and/or supplement the petition.” Harris, 224 Ill. 2d
at 138, 862 N.E.2d at 974-75. The Harris court concluded the circuit court, when it entered
the “final order summarily dismissing the petition as frivolous and patently without merit ***
impliedly denied the requests in defendant’s prayer for relief.” Harris, 224 Ill. 2d at 139, 862
N.E.2d at 975. The final order in this case that summarily dismissed defendant’s petition as
frivolous and patently without merit implicitly denied defendant’s request for a stay or with-
drawal. See Harris, 224 Ill. 2d at 139, 862 N.E.2d at 975.
¶ 26 The question, as in Harris, is whether the trial court abused its discretion to deny
defendant’s request for a stay or withdrawal. See Harris, 224 Ill. 2d at 139-40, 862 N.E.2d at
975. We find no abuse of discretion. Contrary to the arguments in his brief, defendant did not
in his motion seek time to develop or find support for the arguments already contained in his
postconviction petition. Instead, defendant requested time “to add additional arguments of a
constitutional nature.” He stated, due to his limited access to the library, he “ha[d] just found
several constitutional violations.” Defendant failed to list these allegedly newfound constitu-
tional violations. Defendant had nearly four years to develop the constitutional arguments
and yet made no attempt to describe the violations. The trial court did not abuse its discretion
in denying defendant’s request for additional time.
¶ 27 Defendant’s cases are distinguishable. Both involve motions to withdraw that were
denied and the denials were affirmed as proper exercises of discretion (see People v.
Anderson, 49 Ill. 2d 534, 537-38, 276 N.E.2d 300, 302 (1971); People v. Kirk, 9 Ill. App. 3d
483, 485, 292 N.E.2d 510, 511 (1972)). Neither case supports the conclusion the trial court
erred here.
¶ 28 C. Defendant Is Not Entitled to a Credit Against His Fines,
Which Circuit Clerks Are Without Authority To Impose
¶ 29 Defendant next argues he is entitled to credit for time spent in custody awaiting
sentencing against two fines imposed on him: a “Children’s Advocacy Center Fee” (CAC) of
$15 and a “Drug Court Fee” of $10. Defendant asserts, according to People v. Butler, 2013
IL App (5th) 110282, ¶¶ 3-7, 983 N.E.2d 564, and People v. Sulton, 395 Ill. App. 3d 186,
188-89, 916 N.E.2d 642, 644-45 (2009), these “fees” are fines. Defendant alleges he spent
118 days in custody awaiting trial and was entitled to a credit of $5 for each day served ($590
in available credit), amply offsetting the CAC and drug-court fines. See 725 ILCS
5/110-14(a) (West 2008).
¶ 30 The State concedes defendant is entitled to credit for time spent in presentence custody
against fines imposed on defendant, including the CAC and drug-court fines. The State
argues, however, defendant is not entitled to a credit of $25. According to the State, section
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110-7(f) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-7(f) (West 2008))
directs the court clerk to retain 10% of the bail amount paid by defendant as bail-bond costs.
The State emphasizes defendant posted $500 in bond, and the clerk of the court failed to
assess the $50 mandated by section 110-7(f). According to the State, the $25 defendant seeks
should be allocated to the mandatory bond costs rather than be refunded.
¶ 31 We do not accept the State’s concession defendant is entitled to credit for time spent in
presentence custody against the CAC ($15) and drug-court fees ($10). The record before us
affords no indication the trial court imposed any fines orally at sentencing, in its docket
entry, by the written sentencing judgment entered July 18, 2008, or by supplemental
sentencing judgment. Defense counsel asserts by brief defendant was assessed these fines,
citing the common-law record at 123. This citation is to the circuit clerk’s “notice to party,”
listing fines and court costs purportedly assessed against defendant in this case. The circuit
clerk’s assessment and notice to the party, appended, is no substitute for the imposition of
fines by the trial judge as part of the sentence.
¶ 32 This court has consistently held the circuit clerk does not have the power to impose fines.
People v. Swank, 344 Ill. App. 3d 738, 747-48, 800 N.E.2d 864, 871 (2003); People v.
Isaacson, 409 Ill. App. 3d 1079, 1085, 950 N.E.2d 1183, 1189-90 (2011) (trial court
expressly imposed a deoxyribonucleic acid (DNA) fine and a contribution to the Crime
Detection Network and ordered defendant to pay whatever mandatory assessments, including
the Violent Crime Victims Assistance Fund (VCVA) fine, that were listed by the circuit
clerk; the record contained no evidence the court itself determined the mandatory fines that
applied to the defendant’s conviction and the appropriate amounts of those fines; this court
held the conditional discharge order erroneously abdicated that task to the clerk); People v.
Alghadi, 2011 IL App (4th) 100012, ¶ 20, 960 N.E.2d 612 (“any fines imposed by the circuit
clerk’s office are void from their inception”); People v. Williams, 2013 IL App (4th) 120313,
¶ 16, 991 N.E.2d 914 (“such actions by the clerks flagrantly run contrary to the law”). We
vacate the circuit clerk’s imposition of these fines and remand to the trial court for
reimposition of the mandatory fines. People v. Folks, 406 Ill. App. 3d 300, 305, 943 N.E.2d
1128, 1132 (2010); 55 ILCS 5/5-1101(f-5) (West 2010) (where authorized by county
ordinance, the Child Advocacy Center assessment is mandatory and a fine); 725 ILCS
240/10(b) (West 2010) (VCVA fine is $4 for each $40, or fraction thereof, of fine imposed);
People v. Allen, 371 Ill. App. 3d 279, 285, 868 N.E.2d 297, 302-03 (2006) (vacating fines
improperly imposed by the circuit clerk and remanding for the proper imposition by the trial
court); People v. Rohlfs, 322 Ill. App. 3d 965, 971-72, 752 N.E.2d 499, 503-04 (2001); see
also Williams, 2013 IL App (4th) 120313, 991 N.E.2d 914 (appendix) (referencing, e.g., the
court system fee (55 ILCS 5/5-1101(a) (West 2010)) as a fine, although not creditable). In
doing so, we encourage the trial court to review the reference sheet this court recently
provided in Williams, 2013 IL App (4th) 120313, 991 N.E.2d 914 (appendix), to assist trial
courts in ensuring the statutory fines and fees in criminal cases are properly imposed.
¶ 33 We note other reviewing courts have likewise held–some over 25 years ago–the circuit
clerks lack authority to impose fines, which as a matter of law must be imposed by the trial
court as part of the sentence ordered (730 ILCS 5/5-9-1 (West 2012)). See, e.g., People v.
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Scott, 152 Ill. App. 3d 868, 873, 505 N.E.2d 42, 46 (1987) (Fifth District); People v. Tarbill,
142 Ill. App. 3d 1060, 1061, 492 N.E.2d 942, 942 (1986) (Third District); People v. Reed,
160 Ill. App. 3d 606, 612, 513 N.E.2d 1193, 1197 (1987) (circuit clerk has no judicial powers
and therefore cannot impose an unassessed VCVA fine as a miscellaneous cost); People v.
Wisotzke, 204 Ill. App. 3d 44, 49-50, 561 N.E.2d 1310, 1313 (1990) (Second District,
quoting the Illinois Supreme Court in People v. Hare, 119 Ill. 2d 441, 451-52, 519 N.E.2d
879, 883 (1988), referring to a charge assessed under section 10 of the VCVA “as a ‘fine’
which is ‘to be imposed by the judge at the same time other fines and penalties are imposed
and are to be collected in the same manner as other fines’ ”); People v. Albert, 243 Ill. App.
3d 23, 28, 611 N.E.2d 567, 570 (1993) (Second District) (circuit clerk lacked authority to
impose the police training fee and cause must be remanded for proper imposition of the fines
by the court). These are just some of the published opinions addressing this subject. See also
1991 Ill. Att’y Gen. Op. No. 91-007 (penalties authorized by statute authorizing VCVA fines
and by section 5-9-1 of Unified Code of Corrections must be imposed by the trial court; local
court rules may not authorize the circuit clerk to impose the penalties as part of court costs).
¶ 34 Our Illinois Supreme Court has similarly held the circuit clerks are without authority to
impose public defender fees. People v. Gutierrez, 2012 IL 111590, ¶¶ 14 & n.1 (“we do not
believe that the clerk’s action in imposing an illegal fee should further burden the
defendant”), 24 (“The circuit clerk had no authority to impose the public defender fee on its
own ***.”), 962 N.E.2d 437. The Gutierrez court further stated: “Because defendant’s notice
of appeal properly brought up his entire conviction for review, the appellate court had
jurisdiction to act on void orders of the circuit clerk. See People v. Shaw, 386 Ill. App. 3d
704, 710-11[, 898 N.E.2d 755, 762] (2008) (just as a void order may be attacked at any time,
appellate court could address forfeited argument that circuit clerk acted beyond its authority
in imposing a fine).” Id. ¶ 14, 962 N.E.2d 437.
¶ 35 The parties before us fail to note these fines were not ordered by the trial court and
simply address defendant’s statutory per diem credit. In future cases before this court,
attorneys for the office of the State Appellate Defender and the office of the State’s
Attorneys Appellate Prosecutor are reminded to comply with Illinois Supreme Court Rule
341(h)(6) (eff. Feb. 6, 2013) and provide a statement of facts containing the facts necessary
to understand the issues of the case. In appeals raising statutory credit issues, this requires the
parties’ briefs to contain a statement of facts identifying which specific fines the trial court
identified and expressly imposed as part of the sentence–and which fines the circuit clerk
simply assessed after sentencing and without bringing them to the judge’s attention and
having the judge sign off on them in a supplemental sentencing judgment–and providing
appropriate citations to the record. The parties may not agree to overlook or otherwise ignore
the circuit clerk’s imposition of fines not ordered by the trial court. In People v. O’Laughlin,
2012 IL App (4th) 110018, ¶ 28, 979 N.E.2d 1023, this court acknowledged the voluminous
resources expended in trying to determine and assess the myriad fines and fees our legislature
has created. We also stated: “Nevertheless, we are bound to follow these legislative
mandates.” Id. The circuit clerks may be the entity with the software to apply to this
situation, and the circuit clerk may need to input the specific sentence imposed to have the
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software determine and assess the appropriate fines and fees; and the date of the offense(s)
may not be a required input, leading in some cases to imposition on an ex post facto basis.
Complexities continue to arise because the legislature has required the imposition of more
and more fines. Variables remain that require human analysis. There is no software to answer
every question or make any task automatic. These facts do not change the overarching
mandate running throughout the statutory provisions that sentence must be imposed by the
trial judge and this task cannot be delegated to the clerk; these matters must be brought back
before the sentencing judge and reviewed and signed by that judge. The trial judge must
fulfill that duty with assistance from the prosecution, the defense, and the circuit clerk. We
need the above specificity from the parties to fulfill our duties on review.
¶ 36 We disagree with the State’s argument on applying any such resulting credit to
mandatory bond costs. The notice sent to defendant regarding fines and court costs includes a
“Circuit Clerk Bond Fee” of $50, an amount equal to the 10% required to be assessed under
section 110-7(f). While a citation to “705 ILCS 105/27.1” follows this fee on the notice, the
fee could not have been authorized by that section as it was repealed in 2003. See Pub. Act
93-39, § 10 (eff. July 1, 2003). It thus appears the $50 “Circuit Clerk Bond Fee,” against
which defendant’s posted bond was applied, satisfies the section 110-7(f) mandate.
¶ 37 We vacate the circuit clerk’s assessment of fines and remand with directions to the trial
court to impose mandatory fines and direct credit applied to creditable fines as appropriate.
¶ 38 The cases cited regarding fines and fees repeatedly state the circuit clerk is without
authority to impose fines. The cases seldom refer to the trial judge’s abdication of his
responsibility to impose fines as part of the sentencing process. Trial judges have the
responsibility to impose a lawful sentence. The prosecution and defense have a duty to assist
the court in doing so.
¶ 39 III. CONCLUSION
¶ 40 We vacate the circuit clerk’s fine assessments and remand to the trial court with
directions; we otherwise affirm. We grant the State its statutory assessment of $50 against
defendant as costs of this appeal.
¶ 41 Affirmed in part and vacated in part; cause remanded.
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Appendix A
Case No. 4-12-0564