People v. Larue

Illinois Official Reports
Appellate Court
People v. Larue, 2014 IL App (4th) 120595
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption TERRELL T. LARUE, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-12-0595
Filed May 14, 2014
Modified upon denial
of rehearing June 24, 2014
Held On appeal from defendant’s convictions for unlawful possession of a
(Note: This syllabus weapon by a felon and residential burglary, the appellate court held
constitutes no part of the that no speedy-trial violation occurred when the charge of unlawful
opinion of the court but possession of a weapon by a felon was filed after the speedy-trial term
has been prepared by the had expired, since all the elements of the added charge were contained
Reporter of Decisions in the charge of aggravated unlawful use of a weapon filed before the
for the convenience of speedy-trial term expired and defendant was on notice that he had to
the reader.) defend the added charge, and the sentence imposed on defendant for
unlawful possession of a weapon by a felon did not violate the
proportionate penalties clause, because the offense was not “identical”
to aggravated unlawful use of a weapon.
Decision Under Appeal from the Circuit Court of Champaign County, No.
Review 11-CF-2036; the Hon. Thomas J. Difanis, Judge, presiding.
Judgment Affirmed in part and vacated in part; cause remanded with directions.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Martin J. Ryan, all of
Appeal State Appellate Defender’s Office, of Springfield, for appellant.
Julia Reitz, State’s Attorney, of Urbana (Patrick Delfino, David J.
Robinson, and Anastacia R. Brooks, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE HOLDER WHITE delivered the judgment of the court, with
opinion.
Presiding Justice Appleton and Justice Turner concurred in the
judgment and opinion.
OPINION
¶1 On December 13, 2011, the State charged defendant, Terrell T. Larue, with (1) attempt
(armed robbery) (720 ILCS 5/8-4(a), 18-2(a) (West 2010)) (count I); (2) residential burglary
(720 ILCS 5/19-3 (West 2010)) (count II); and (3) aggravated unlawful use of a weapon
(AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)) (count III). Police arrested
defendant on December 12, 2011, and he remained in custody thereafter. On April 27, 2012,
over 120 days after defendant’s arrest date, the State also charged defendant with unlawful
possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West 2010)).
¶2 Defendant’s jury trial began on April 30, 2012, and continued on May 2, 2012. The State
elected to proceed only on the residential burglary and UPWF counts. Following the trial, the
jury found defendant guilty of both charges. In June 2012, the trial court sentenced defendant
to consecutive sentences of 10 years in prison for UPWF and 15 years in prison for residential
burglary, ordering defendant to pay the “costs of prosecution herein.” Following sentencing,
the circuit clerk imposed various fines and fees.
¶3 Defendant appeals, arguing (1) his conviction for UPWF must be vacated because the State
filed the charge after the 120-day speedy-trial term had run on the original charges; (2) his
10-year sentence for UPWF must be vacated because the sentence violates the
proportionate-penalties clause of the Illinois Constitution; (3) his 10-year sentence for UPWF
must be vacated because it violates the due process clause of the Illinois Constitution and the
equal protection clauses of both the Illinois and United States Constitutions; and (4) the circuit
court clerk imposed six void fines and seven duplicate fees that must be vacated.
¶4 We affirm in part, vacate in part, and remand with directions.
¶5 I. BACKGROUND
¶6 On December 13, 2011, the State charged defendant with (1) attempt (armed robbery) (720
ILCS 5/8-4(a), 18-2(a) (West 2010)) (count I); (2) residential burglary (720 ILCS 5/19-3 (West
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2010)) (count II); and (3) AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)) (count
III), a Class 2 felony carrying a maximum prison sentence of seven years. Defendant was
arrested on December 12, 2011, and remained in custody until his trial. On February 7, 2012,
the State filed a motion for continuance pursuant to section 103-5(c) of the Code of Criminal
Procedure of 1963 (725 ILCS 5/103-5(c) (West 2010)), requesting additional time to obtain
defendant’s deoxyribonucleic acid (DNA) sample. The trial court granted the State’s motion
over defendant’s objection. At the next court date, March 20, 2012, the court set defendant’s
trial for April 9, 2012. On April 3, 2012, the court allowed an agreed motion to vacate the trial
setting because defendant’s attorney was “under a doctor’s care.” Thereafter, the court set
defendant’s trial for April 30, 2012. On April 27, 2012, three days before trial, the State
charged defendant with UPWF, a Class 3 felony carrying a possible 2- to 10-year prison
sentence (720 ILCS 5/24-1.1(a), (e) (West 2010)) (count IV).
¶7 A. Defendant’s Trial
¶8 On April 30, 2012, the parties appeared for defendant’s jury trial. Prior to the trial’s
commencement, the State dismissed counts I and III. Thereafter, the trial commenced. A
summary of the evidence presented is as follows.
¶9 Timothy McNaught, an Urbana police officer, testified that on December 12, 2011, he was
dispatched to apartment 217 of 904 Broadway. When he arrived to apartment 217, McNaught
saw the door was ajar and showed obvious signs of having been forced open. The apartment
was empty. McNaught then started knocking on other apartment doors and noticed the door to
apartment 218 opened and shut quickly. Police ordered the occupants of 218 to come out, and
Erik Kirk, Sherrick Cooper, Herbert Shah, Darrell Hubbard, and defendant complied. After the
men were handcuffed, patted down, and ushered downstairs, McNaught entered apartment
218, which belonged to Jamie Calhoun, the mother of defendant’s child. During a protective
sweep, McNaught discovered a gun in a utilities closet next to the furnace. McNaught left the
apartment to obtain a search warrant.
¶ 10 Matt Quinley, a detective with the Urbana police department, testified he took part in
executing the search warrant at apartment 218. During the search, officers recovered a 32-inch
flat screen television (TV). Denee Thomas, who lived in apartment 217, later verified the TV
as hers, using a remote control that was still in her apartment to turn it on. The officers also
found an Xbox and “a brand new pair of Nike Air Jordans” underneath the kitchen sink.
Mathew Vien, an Illinois State Police crime scene investigator, testified he took photographs
inside apartment 218 of (1) a pair of size 10 Nike shoes, and (2) two 9-millimeter caliber
handguns found on top of the furnace under a T-shirt. One of the guns was a Browning
9-millimeter semiautomatic handgun with the hammer cocked. When Vien unloaded the gun,
it contained one round in the chamber and a magazine containing several rounds. The other
gun that the officers recovered from the top of the furnace area was a Hi-Point 9-millimeter
semiautomatic pistol. That gun also contained one round in the chamber and a magazine
containing several rounds.
¶ 11 Brian Willfong, a police officer with the City of Urbana, testified he transported defendant
from the 904 Broadway apartments to the Urbana police department. At the station, Willfong
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searched defendant and found $1,300 in defendant’s left pants pocket. Earlier that day, officers
had conducted a traffic stop outside the 904 Broadway apartments, during which they found
$1,300 on Kaurente Pettigrew, which they later returned. Hubbard, Kirk, Cooper, Shah, and
defendant all watched the officers stop Pettigrew. Pettigrew then went to Thomas’s apartment.
According to Hubbard’s testimony, the men then decided to break into Thomas’s apartment to
“get some money.” Hubbard said he and the four other men then returned to Thomas’s
apartment, with Hubbard and Shah breaking the apartment door by kicking it in.
¶ 12 David Smysor, an investigator with the Urbana police department, testified he obtained a
recorded statement from defendant. The trial court allowed the State to play the recorded
statement and to provide the jury with copies of a transcript of the statement. In his statement,
defendant denied participating in the robbery and denied that either of the recovered guns
belonged to him. He said he remained in Calhoun’s apartment the entire time of the robbery
and only knew the details of the robbery based on what the other men told him. Defendant saw
Hubbard return from Thomas’s apartment with a TV and a game system. Defendant said the
longer gun that police recovered belonged to Kirk and the shorter one belonged to Cooper. He
acknowledged holding Kirk’s gun earlier in the day but denied ever handling Cooper’s gun.
Defendant said he received the $1,300 police found on him from his mom and other family
members.
¶ 13 Hubbard first testified he saw only one gun on the night of the robbery, the gun he pled
guilty to possessing but did not own. However, he then also said he saw two 9-millimeter guns
in Calhoun’s apartment, a brown and black one and a black one. Hubbard identified the brown
and black gun in court as the one Cooper had. He denied recognizing the gun depicted in
People’s exhibit No. 32, the Hi-Point 9-millimeter semiautomatic pistol. He said the black gun
he remembered seeing was “just on the ground” and had been “passed around.” Specifically,
he said Kirk touched it, Cooper “probably” touched it, and he did not know whether defendant
or Shah touched it. Hubbard testified that when the men went to Thomas’s apartment, one of
them “probably could have had” a gun but Hubbard did not recall seeing any. Hubbard later
denied the men passed around the guns in Calhoun’s apartment. On cross-examination,
Hubbard said the gun he had was a BB gun. Hubbard denied touching either of the guns
depicted in the State’s exhibits, and he said none of the men touched his BB gun.
¶ 14 Before pleading guilty, Hubbard had given a taped statement to Quinley, but he testified he
did not remember telling Quinley defendant had the gun with the wooden handle. In his
recorded statement, which was played for the jury, Hubbard told Quinley that Kirk, Cooper,
and defendant each had a gun. He admitted touching one of the guns on an earlier date. He also
said that, earlier in the evening, defendant said they needed money and needed “a lick.”
¶ 15 Correctional officers Shane McPheron and James Spence each took defendant’s
fingerprints. John Carnes, an expert in fingerprint examination, testified he could not find any
fingerprints suitable for comparison on the guns, shoes, shoebox, or Xbox that officers had
recovered from apartment 218. Carnes did, however, find eight fingerprints suitable for
comparison on the TV. Carnes opined that six of the prints belonged to defendant.
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¶ 16 Following the witnesses’ testimony, the trial court took judicial notice of defendant’s prior
felony conviction of unlawful possession of a controlled substance. Thereafter, the jury found
defendant guilty of UPWF and residential burglary.
¶ 17 B. Sentencing Hearing
¶ 18 In May 2012, defendant filed a motion for a new trial or, in the alternative, for judgment
n.o.v. At a June 2012 hearing, the trial court denied defendant’s motion and proceeded to
sentencing. Correctional officers at the county jail testified (1) heroin was found in defendant’s
cell the day after his arrest; (2) defendant unbolted a stool and used a portion of the stool to dig
into concrete and caulking in an attempt to escape; (3) defendant threatened to shoot one of the
guards in the mouth; and (4) defendant flooded his cell by stuffing a blanket into the toilet and
flushing the toilet. Defendant made a statement, apologizing for the damage to Thomas’s
home.
¶ 19 The trial court sentenced defendant to 10 years in prison for UPWF and 15 years in prison
for residential burglary, ordering the sentences to run consecutively. The court’s written
sentencing order also required defendant to “pay costs of prosecution herein.” In announcing
defendant’s sentence, the court found defendant’s young age to be the only mitigating factor
present. In aggravation, the court noted (1) defendant had a prior history of delinquency and
criminal activity, and (2) the court needed to deter other individuals from committing a similar
crime. The court also pointed out that correctional officers testified defendant brought heroin
into the jail, tried to escape, and threatened to shoot an officer in the mouth. A computer
printout reveals that, at some point, the circuit clerk imposed various assessments for each of
defendant’s two convictions, including the following: (1) a $30 juvenile expungement fine
(730 ILCS 5/5-9-1.17(a) (West 2010)), (2) a $10 “Traffic/Criminal” fine surcharge (730 ILCS
5/5-9-1(c) (West 2010)), (3) a $10 State Police operations fine (705 ILCS 105/27.3a (West
2010)), (4) a $5 document storage fee, (5) a $10 automation fee, (6) a $100 circuit clerk fee, (7)
a $25 court security fee, (8) a $10 arrestee’s medical assessment, (9) a $50 court finance fee,
and (10) a $40 State’s Attorney fee. This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant argues (1) his conviction for UPWF must be vacated because the
State filed the charge after the 120-day speedy-trial term had run on the original charges; (2)
his 10-year sentence for UPWF must be vacated because the sentence violates the
proportionate-penalties clause of the Illinois Constitution; (3) his 10-year sentence for UPWF
must be vacated because it violates the due process clause of the Illinois Constitution and the
equal protection clauses of the Illinois and United States Constitutions; and (4) the circuit court
clerk imposed six void fines and seven duplicate fines.
¶ 22 Following briefing in this case, we ordered the parties to submit supplemental briefs
discussing the effect, if any, that the supreme court’s decision in People v. Aguilar, 2013 IL
112116, had on defendant’s arguments. The parties submitted briefs as requested, agreeing that
Aguilar has no effect on defendant’s arguments because, although the supreme court initially
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found the entire AUUW statute unconstitutional in its original Aguilar decision, it
subsequently modified its opinion upon denial of rehearing to make clear that it was finding
only the Class 4 felony form of the AUUW statute unconstitutional. We agree with both parties
that Aguilar, as modified upon denial of rehearing, has no effect on defendant’s arguments.
Accordingly, we turn to defendant’s arguments.
¶ 23 A. Defendant’s Speedy-Trial Claim
¶ 24 Defendant first asserts his conviction for UPWF (count IV) must be vacated because the
State filed the charge, which was based on the same conduct as AUUW (count III), after the
120-day speedy-trial term had run on the original charges. Defendant acknowledges that he did
not object to the UPWF count at trial but argues the speedy-trial issue should be reviewed (1)
under the plain-error doctrine or (2) because his attorney was ineffective for failing to object to
the additional charge. Whether reviewing the issue for plain error or to determine whether
counsel was ineffective, we must first determine whether defendant’s speedy-trial right was
violated. People v. Mays, 2012 IL App (4th) 090840, ¶ 42, 980 N.E.2d 166.
¶ 25 A defendant possesses both constitutional and statutory rights to a speedy trial. People v.
Phipps, 238 Ill. 2d 54, 65, 933 N.E.2d 1186, 1193 (2010). In this case, defendant asserts only
that his statutory right to a speedy trial was violated. Illinois’s speedy-trial statute provides that
a defendant in custody must be brought to trial within 120 days of the day he was brought into
custody. 725 ILCS 5/103-5(a) (West 2010). The speedy-trial statute tolls during any period of
delay occasioned by the defendant. People v. Woodrum, 223 Ill. 2d 286, 299, 860 N.E.2d 259,
269 (2006). A defendant not tried within the statutory period must be released from custody
and have the charges against him dismissed. 725 ILCS 5/103-5(d) (West 2010); People v.
Hunter, 2013 IL 114100, ¶ 10, 986 N.E.2d 1185.
¶ 26 Pursuant to the compulsory joinder statute (720 ILCS 5/3-3(b) (West 2010)), the State
must prosecute in a single criminal case all known offenses within the jurisdiction of a single
court that “ ‘are based on the same act.’ ” Hunter, 2013 IL 114100, ¶ 10, 986 N.E.2d 1185
(quoting 720 ILCS 5/3-3(b) (West 2008)). The Illinois Supreme Court has explained the
relationship between the compulsory joinder statute and the speedy-trial statute as follows.
“Where new and additional charges arise from the same facts as did the original charges and
the State had knowledge of these facts at the commencement of the prosecution, the time
within which trial is to begin on the new and additional charges is subject to the same statutory
limitation that is applied to the original charges.” (Internal quotation marks omitted.) Hunter,
2013 IL 114100, ¶ 10, 986 N.E.2d 1185. Where the initial and subsequent charges are subject
to compulsory joinder, delays attributable to the defendant on the initial charge are not
attributable to the defendant on the new and additional charges “ ‘because these new and
additional charges were not before the court when those continuances were obtained.’ ”
Phipps, 238 Ill. 2d at 66, 933 N.E.2d at 1193 (quoting People v. Williams, 94 Ill. App. 3d 241,
249, 418 N.E.2d 840, 846 (1981)). The purpose of the so-called Williams rule is to prevent
“trial by ambush” wherein “[t]he State could lull the defendant into acquiescing to pretrial
delays on pending charges, while it prepared for a trial on more serious, not-yet-pending
charges.” (Internal quotation marks omitted.) Woodrum, 223 Ill. 2d at 300, 860 N.E.2d at 270.
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This court has made clear, however, that the Williams rule does not apply to included offenses
because an indictment for an offense serves as an indictment for all included offenses. People
v. Callahan, 334 Ill. App. 3d 636, 642, 778 N.E.2d 737, 743 (2002). Thus, included offenses
“are deemed to have been before the court when earlier continuances were granted.” Id.
¶ 27 Here, the parties dispute whether the later UPWF charge was a “new and additional”
charge or merely an included offense of the original AUUW charge. We review de novo
whether the UPWF charge is new and additional. Phipps, 238 Ill. 2d at 67, 933 N.E.2d at 1194.
To do so, we must compare the original and subsequent charges. Id.
¶ 28 The State’s original charge of AUUW was based on defendant, having previously been
convicted of a felony, knowingly carrying on or about his person, when not on his own land or
in his own abode or place of business, a firearm that was uncased, loaded, and immediately
accessible. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010). The State’s later charge of
UPWF was based on defendant, after having been convicted of a felony, knowingly possessing
on or about his person any firearm. See 720 ILCS 5/24-1.1(a) (West 2010).
¶ 29 Thus, both the AUUW and UPWF charges were premised on defendant knowingly
possessing a firearm after having been previously convicted of a felony. Defendant
acknowledges that the conduct alleged in the original count, AUUW, encompassed the
conduct alleged in UPWF. However, defendant argues that the State’s tactic of substituting
UPWF for AUUW three days before trial prejudiced defendant in that it stripped defendant of
his defense on the additional element in AUUW not present in UPWF–namely, that the firearm
at issue was “uncased, loaded, and immediately accessible.” As the State points out, however,
an indictment for a particular offense serves an indictment for all included offenses. See
Callahan, 334 Ill. App. 3d at 642, 778 N.E.2d at 743. What defenses the defendant may or may
not have as a result of the subsequent charge is not part of our analysis for purposes of
compulsory joinder and the statutory right to a speedy trial. Every element of UPWF is
contained within AUUW and it is impossible to commit AUUW without committing UPWF.
See id. Therefore, the subsequent UPWF charge is not a “new and additional” charge subject to
the rule announced in Williams. Because the State charged defendant with AUUW, the lesser
offense of UPWF was before the court when the court considered requests to continue the case.
See People v. Dressler, 317 Ill. App. 3d 379, 387, 739 N.E.2d 630, 637 (2000). Moreover,
“[t]he question for a speedy-trial analysis is whether defendant had adequate notice of the
subsequent charges to allow him to prepare and present a defense.” Mays, 2012 IL App (4th)
090840, ¶ 45, 980 N.E.2d 166.
¶ 30 Defendant asserts that based on Phipps, we are required to compare the respective
penalties of the two charges in determining whether UPWF is a new and additional charge.
Defendant argues that because UPWF carries a greater maximum penalty than AUUW, the
subsequent charge of UPWF is a new and additional charge. Based on defendant’s criminal
history, AUUW was a Class 2 felony carrying a prison term of between three and seven years.
720 ILCS 5/24-1.6(d)(3) (West 2010). By contrast, UPWF was a Class 3 felony punishable by
a prison sentence of up to 10 years. 720 ILCS 5/24-1.1(e) (West 2010).
¶ 31 In Phipps, the supreme court concluded that the original reckless homicide charge
provided defendant adequate notice of the subsequent aggravated driving under the influence
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charge. Phipps, 238 Ill. 2d at 70, 933 N.E.2d at 1195. In reaching its decision, the supreme
court reasoned that the original indictment and subsequent information alleged the same
conduct. Id. at 68, 933 N.E.2d at 1194. The court went on to note that, as charged by the State,
reckless homicide and aggravated driving under the influence “had essentially the same
elements and provided the same penalty.” Id.
¶ 32 Although the supreme court noted the two charges carried the same penalty, the Phipps
decision makes clear the supreme court’s determination turned on whether defendant had
notice of the subsequent charge. Indeed, the court stated “[t]he critical point” for its
speedy-trial analysis was “whether the original indictment gave defendant adequate notice to
prepare his defense to the subsequent charge.” Id. at 69, 933 N.E.2d at 1195. In applying the
same reasoning to our case, we conclude no speedy-trial violation occurred when the State
added the UPWF charge because, although UPWF carried a greater maximum sentence, all of
the elements of UPWF were contained within AUUW and, thus, defendant was on notice that
he should prepare a defense to UPWF. See People v. Arndt, 50 Ill. 2d 390, 395, 280 N.E.2d
230, 233 (1972) (the defendant could not claim surprise when the State added a count for
involuntary manslaughter because defendant was at all times subject to a conviction for
involuntary manslaughter under the original murder charge). Given defendant does not assert
that the trial on the original charge took place in violation of his statutory right to a speedy trial,
all delays attributable to him on the original charge would apply to the subsequent UPWF
charge. Therefore, no speedy-trial violation occurred.
¶ 33 Because no speedy-trial violation occurred, defendant has failed to establish he was
prejudiced by counsel’s failure to object to or file a motion to dismiss the UPWF charge; thus,
we reject defendant’s ineffective assistance of counsel claim. Phipps, 238 Ill. 2d at 71, 933
N.E.2d at 1196. Likewise, because defendant cannot establish any error occurred, no further
plain-error analysis is required. See People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d
403, 411 (2007) (first step under the plain-error doctrine is to determine whether error
occurred).
¶ 34 B. Defendant’s Proportionate-Penalties-Clause Claim
¶ 35 Defendant next asserts his 10-year sentence for UPWF violates the proportionate penalties
clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Specifically, defendant argues
that because UPWF is a lesser-included offense of AUUW but is punished more harshly than
AUUW, his 10-year sentence for UPWF must be vacated.
¶ 36 A statute violates the proportionate-penalties clause of the Illinois Constitution if it
contains the same elements as another offense but carries a greater sentence. People v. Sharpe,
216 Ill. 2d 481, 521, 839 N.E.2d 492, 517 (2005). This is so because if the legislature
determines the exact same elements merit two different punishments, then one of those
punishments has not been set according to the seriousness of the offense. Id. at 522, 839
N.E.2d at 517.
¶ 37 Defendant acknowledges UPWF and AUUW are not truly “identical.” Specifically,
AUUW contains an additional element that the defendant’s firearm be uncased, immediately
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accessible, and loaded. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), 24-1.1(a) (West 2010). This
additional element notwithstanding, defendant claims that treating the two offenses as identical
for proportionate-penalties purposes is consistent with both the purpose of the
proportionate-penalties clause and the supreme court’s decision in Sharpe. We disagree.
¶ 38 In People v. Dunn, 365 Ill. App. 3d 292, 294-95, 849 N.E.2d 148, 150 (2006), the
defendant argued the punishment applicable to predatory criminal sexual assault of a child
violated the proportionate-penalties clause because it was harsher than the penalties for
offenses with identical elements, namely, predatory criminal sexual assault of a child while
armed with a firearm and predatory criminal sexual assault of a child involving the discharge
of a firearm. Our court rejected the defendant’s argument, concluding the offenses did not have
identical elements and, thus, the defendant failed to show the punishment for predatory
criminal sexual assault of a child violated the proportionate-penalties clause. Id. at 296, 849
N.E.2d at 151. Defendant urges us to overrule our decision in Dunn because it relied on People
v. Espinoza, 184 Ill. 2d 252, 702 N.E.2d 1275 (1998), which did not involve offenses where the
lesser-included offense carried a greater penalty than the greater encompassing offense. We
decline to overrule Dunn, as we find it is consistent with the supreme court’s directive in
Sharpe to abandon cross-comparison proportionate-penalties analysis. See Sharpe, 216 Ill. 2d
at 519, 839 N.E.2d at 515-16.
¶ 39 Therefore, we reject defendant’s claim that his 10-year sentence for UPWF violates the
proportionate-penalties clause.
¶ 40 C. Defendant’s Due Process and Equal Protection Claims
¶ 41 Defendant next argues his 10-year sentence for UPWF violates the due process clause of
the Illinois Constitution and the equal protection clauses of the United States and Illinois
Constitutions.
¶ 42 1. Due Process Clause
¶ 43 Defendant claims his sentence violates the due process clause of the Illinois Constitution
(Ill. Const. 1970, art. I, § 2) because UPWF is a lesser-included offense of AUUW but is
punished more harshly than AUUW.
¶ 44 “Under the State’s police power, the legislature possesses wide discretion in prescribing
penalties for defined offenses.” People v. Dixon, 359 Ill. App. 3d 938, 942, 835 N.E.2d 925,
929 (2005). Nonetheless, “[t]he legislature’s power to fix penalties is *** subject to the
constitutional proscription which prohibits the deprivation of liberty without due process of
law.” People v. Bradley, 79 Ill. 2d 410, 417, 403 N.E.2d 1029, 1032 (1980). In considering a
due process challenge, our inquiry is whether the penalty is reasonably designed to remedy the
particular evil that the legislature was targeting. Sharpe, 216 Ill. 2d at 523, 839 N.E.2d at 518.
We will not invalidate a statute “unless the challenged penalty is clearly in excess of the very
broad and general constitutional limitations applicable.” (Internal quotation marks omitted.)
Dixon, 359 Ill. App. 3d at 942, 835 N.E.2d at 929.
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¶ 45 Prior to 2000, section 24-1.1(e) provided only that UPWF was a Class 3 felony. 720 ILCS
5/24-1.1(e) (West 1998). Thus, a person convicted of UPWF was subject to a maximum
regular sentence of 5 years in prison and a maximum extended-term sentence of 10 years in
prison. 730 ILCS 5/5-8-1(a)(6), 5-8-2(a)(5) (West 1998). Public Act 91-544, which became
effective on January 1, 2000, modified section 24-1.1(e) to provide that a person guilty of
UPWF “if sentenced to a term of imprisonment, shall be sentenced to no less than 2 years and
no more than 10 years.” Pub. Act 91-544, § 5 (eff. Jan. 1, 2000). Thus, after 2000, a person
convicted of UPWF could be subject to a maximum regular sentence of 10 years without the
presence of an aggravating factor.
¶ 46 Public Act 91-690, effective April 13, 2000, enacted section 24-1.6 of the Criminal Code
of 1961, creating the offense of AUUW. Pub. Act 91-690, § 10 (eff. Apr. 13, 2000). AUUW
committed by a felon was a Class 2 felony; thus, a felon convicted of AUUW was subject to a
maximum regular sentence of no more than 7 years’ imprisonment or a maximum
extended-term sentence of no more than 14 years’ imprisonment with the presence of an
aggravating factor. 720 ILCS 5/24-1.6(d) (West 2000); 730 ILCS 5/5-8-1(a)(5), 5-8-2(a)(4)
(West 2000). Eventually, in 2006, the legislature made the prison term for AUUW mandatory.
Pub. Act 94-72, § 5 (eff. Jan. 1, 2006). At the time of defendant’s offense, a prison term was
not mandatory for UPWF. 720 ILCS 5/24-1.1(e) (West 2010); see also People v. Johnson, 237
Ill. 2d 81, 98, 927 N.E.2d 1179, 1190 (2010). AUUW carried a mandatory supervised release
(MSR) term of two years, while UPWF was subject to a one-year MSR term.
¶ 47 In support of his claim that his 10-year sentence for UPWF violates the due process clause,
defendant cites Bradley, in which the supreme court found a due process clause violation
where possession of a controlled substance was a Class 3 felony subject to an indeterminate
sentence of 1 to 10 years but delivery of that same substance was only a Class 4 felony subject
to an indeterminate sentence of 1 to 3 years. Bradley, 79 Ill. 2d at 414-18, 403 N.E.2d at
1030-32. The supreme court reasoned the Illinois Controlled Substances Act (Ill. Rev. Stat.
1977, ch. 56½, ¶ 1100 et seq. (now 720 ILCS 570/100 et seq. (West 2010))) expressly stated
the General Assembly’s intent was to “penalize most heavily the illicit traffickers or profiteers
of controlled substances.” (Internal quotation marks omitted.) Bradley, 79 Ill. 2d at 418, 403
N.E.2d at 1032. Accordingly, punishing the possession of a controlled substance more harshly
than the delivery of that substance directly contravened the express intent of the legislature and
violated the due process clause of the Illinois Constitution. Id.
¶ 48 Here, defendant has failed to show his sentence for UPWF is contrary to the legislative’s
intent in enacting the statute. Indeed, unlike Bradley, defendant has provided no citation to an
express statement of the legislative intent in enacting UPWF or AUUW. Thus, defendant has
failed to show the penalty for UPWF is not reasonably designed to remedy the particular evil
the legislature was targeting such that a due process violation has occurred.
¶ 49 2. Equal Protection Clauses
¶ 50 Defendant also contends his 10-year sentence for UPWF violates the equal protection
clauses of both the Illinois and United States Constitutions (U.S. Const., amend. XIV, § 1; Ill.
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Const. 1970, art. I, § 2) because by enacting different sentences for UPWF and AUUW, the
legislature is treating those who have committed similar offenses dissimilarly.
¶ 51 The equal protection clause requires the government to treat similarly situated individuals
in a similar fashion, unless the government can show an appropriate reason to treat the
individuals differently. People v. Masterson, 2011 IL 110072, ¶ 24, 958 N.E.2d 686. The
applicable level of scrutiny we apply to an equal protection challenge is determined by the
nature of the right involved. Id. Here, defendant concedes his case does not involve a
fundamental right and the individuals at issue here, convicted felons illegally possessing a
firearm, are not a suspect class. Thus, we apply a rational basis standard, under which we must
determine whether the statute bears a rational relationship to a legitimate government purpose.
Id.
¶ 52 “[I]t is axiomatic that an equal protection claim requires a showing that the individual
raising it is similarly situated to the comparison group.” Id. ¶ 25, 958 N.E.2d 686. Defendant
must make a showing that he is similarly situated to those against whom he seeks comparison.
If the defendant is unable to make this showing, his equal protection claim fails and application
of the rational basis standard is not required. Id.
¶ 53 In Bradley, the supreme court rejected the argument that a defendant convicted of
possession of a controlled substance was similarly situated to one convicted of delivery of a
controlled substance, because “[b]y the very definition of the offenses, those accused of one
would be dissimilarly situated from those accused of the other.” Bradley, 79 Ill. 2d at 417, 403
N.E.2d at 1032. Given that AUUW and UPWF are by their respective definitions different,
defendant cannot meet his burden of showing his is similarly situated. Under the holding in
Bradley, defendant’s assertion that one convicted of UPWF is similarly situated to one
convicted of AUUW fails.
¶ 54 D. Defendant’s Claims Concerning Void and Duplicate Fines
¶ 55 Finally, defendant argues this court must vacate (1) six fines imposed by the circuit clerk,
as the clerk lacked authority to impose the fines, and (2) seven duplicate fees. Further,
defendant asserts that, should the trial court impose fines on remand, he should receive $5 per
diem credit against those fines (725 ILCS 5/110-14 (West 2010)). The State concedes fines
must be imposed judicially and that defendant’s case should be remanded for judicial
imposition of mandatory fines, subject to available incarceration credit, as well as the
elimination of duplicate fees. We accept the State’s concession in part.
¶ 56 In this case, the trial court ordered only that defendant pay “all costs of prosecution herein.”
A computer printout, however, reveals that for each of defendant’s two convictions, the circuit
clerk imposed the following assessments, which constitute fines: (1) a $30 juvenile
expungement fine (730 ILCS 5/5-9-1.17(a) (West 2010)) (listed as three separate $10 charges
for the State Police Services Fund, State’s Attorney’s Office Fund, and Circuit Clerk Operation
and Administration Fund (730 ILCS 5/5-9-1.17(b) (West 2010))); (2) a $10 “Traffic/Criminal”
fine surcharge (730 ILCS 5/5-9-1(c) (West 2010)); and (3) a $10 State Police operations fine
(705 ILCS 105/27.3a (West 2010)). Because the imposition of a fine is a judicial act, and the
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circuit clerk has no authority to levy fines, any fines imposed by the circuit clerk are void from
their inception. People v. Williams, 2013 IL App (4th) 120313, ¶ 16, 991 N.E.2d 914. Thus, we
vacate the circuit clerk’s assessment of fines.
¶ 57 The clerk also imposed, for each of the two convictions, a $10 arrestee’s medical
assessment. Although defendant categorizes this assessment as a “fee,” we note an arrestee’s
medical assessment may be imposed regardless of whether a defendant actually incurs an
injury requiring medical care. People v. Unander, 404 Ill. App. 3d 884, 890, 936 N.E.2d 795,
800 (2010). Therefore, the arrestee’s medical assessment is a fine. See People v. Jake, 2011 IL
App (4th) 090779, ¶ 29, 960 N.E.2d 45 (An assessment is a fee only if it is intended to
reimburse the State for a cost incurred in the defendant’s prosecution.). Because the circuit
clerk lacks authority to impose fines, we vacate the arrestee’s medical assessment.
¶ 58 In addition, the clerk imposed the following fees for each of the two convictions: (1) a $5
document storage fee, (2) a $10 automation fee, (3) a $100 circuit clerk fee, (4) a $25 court
security fee, (5) a $50 court finance fee, and (6) a $40 State’s Attorney fee. In People v.
Alghadi, 2011 IL App (4th) 100012, ¶ 22, 960 N.E.2d 612, we stated that a defendant may only
be assessed one of each of these fees, even when a defendant is charged with multiple counts
within the same case number. Subsequent to Alghadi, however, the Second District adopted a
different approach to addressing duplicate fees. In both People v. Martino, 2012 IL App (2d)
101244, 970 N.E.2d 1236, and People v. Pohl, 2012 IL App (2d) 100629, 969 N.E.2d 508, the
Second District examined the language of the statute or ordinance imposing each fee to
ascertain whether that fee could be imposed more than once. In doing so, the Second District
concluded some of the fees could be assessed multiple times in one case. See Martino, 2012 IL
App (2d) 101244, ¶ 56, 970 N.E.2d 1236 (“[t]he imposition of multiple County Jail Medical
Costs Fund fees, court finance fees, State’s Attorney’s fees, and drug court/mental health court
fines was proper”).
¶ 59 In light of the Second District’s decisions, we decline to apply Alghadi and will instead
examine the language of the statutes authorizing the fees at issue in this case to determine
whether duplicate fees could be imposed. In construing the statutes, our “primary objective is
to ascertain and give effect to the legislature’s intent, keeping in mind that the best and most
reliable indicator of that intent is the statutory language itself, given its plain and ordinary
meaning.” People v. Elliott, 2014 IL 115308, ¶ 11, 4 N.E.3d 23. Our review is de novo. Id.
¶ 60 The record indicates the circuit clerk imposed six duplicate fees in this case. We address
each fee in turn.
¶ 61 1. Document Storage Fee
¶ 62 First, the clerk imposed two $5 document storage fees. To defray the costs of a document
storage system, section 27.3c(a) of the Clerks of Courts Act (Clerks Act) (705 ILCS
105/27.3c(a) (West 2010)) authorizes the clerk to charge a fee of between $1 and $15, which
“shall be paid *** by the defendant in any felony, misdemeanor, traffic, ordinance, or
conservation matter.” (Emphasis added.) 705 ILCS 105/27.3c(a) (West 2010). In Pohl, the
Second District concluded that the word “matter” could be used as a synonym for “case” or to
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refer to an allegation in a pleading. Pohl, 2012 IL App (2d) 100629, ¶ 21, 969 N.E.2d 508
(citing Black’s Law Dictionary 999 (8th ed. 2004)). It reasoned that “matter” was synonymous
with “case” because one would not normally speak of a defendant charged with a crime as the
defendant “in” an allegation. Pohl, 2012 IL App (2d) 100629, ¶ 21, 969 N.E.2d 508. We find
the Second District’s reasoning persuasive and thus conclude “matter” signifies “case”;
accordingly, defendant could be assessed only one fee for his case, even though it resulted in
multiple convictions.
¶ 63 2. Automation Fee
¶ 64 The clerk also imposed two $10 automation fees. Like section 27.3c, section 27.3a of the
Clerks Act allows a circuit clerk, in order to defray the cost of maintaining an automated
system, to collect a $1 to $15 fee, which “shall be paid *** by the defendant in any felony,
traffic, misdemeanor, municipal ordinance, or conservation case.” (Emphasis added.) 705
ILCS 105/27.3a(1) (West 2010). Thus, a defendant can only be assessed one automation fee
per case. Accordingly, we vacate the duplicate automation fee.
¶ 65 3. Circuit Clerk Fee
¶ 66 The clerk also imposed two $100 circuit clerk fees. Section 27.1a(w)(1)(A) of the Clerks
Act provides, in relevant part, as follows:
“(1) The clerk shall be entitled to costs in all criminal and quasi-criminal cases from
each person convicted or sentenced to supervision therein as follows:
(A) Felony complaints, a minimum of $40 and a maximum of $100.” 705 ILCS
105/27.1a(w)(1)(A) (West 2010).
Thus, the plain language of section 27.1a(w)(1)(A) of the Clerks Act entitles the clerk to
collect one fee per felony complaint. Because the counts the State filed constituted one felony
complaint, the clerk could impose only one circuit clerk fee. Accordingly, we vacate one of the
two circuit clerk fees.
¶ 67 4. Court Security Fee
¶ 68 The record likewise demonstrates the circuit clerk imposed two $25 court security fees.
Section 5-1103 of the Counties Code (55 ILCS 5/5-1103 (West 2010)) authorizes a county
board to enact a fee to defray court security expenses, specifying that “[i]n criminal, local
ordinance, county ordinance, traffic and conservation cases, such fee shall be assessed against
the defendant.” (Emphasis added.) 55 ILCS 5/5-1103 (West 2010). Because the statute refers
to cases and not individual convictions, the clerk could only impose one court security fee here.
Pohl, 2012 IL App (2d) 100629, ¶ 12, 969 N.E.2d 508. Thus, we vacate the duplicate security
fee.
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¶ 69 5. Court Finance Fee
¶ 70 The circuit clerk additionally imposed two $50 court finance fees. Section 5-1101(c) of the
Counties Code provides that a county board may enact “[a] fee to be paid by the defendant on
a judgment of guilty or a grant of supervision,” which “for a felony” is $50. 55 ILCS
5/5-1101(c) (West 2010). Thus, the plain language of section 5-1101(c) of the Counties Code
allows a clerk to assess a fee on each judgment of guilty or grant of supervision. Here, the jury
found defendant guilty of two counts; accordingly, the circuit clerk properly assessed two $50
court finance fees–one $50 fee for each of defendant’s two counts.
¶ 71 6. State’s Attorney Fee
¶ 72 Finally, the clerk assessed duplicate $40 State’s Attorney fees. Section 4-2002(a) of the
Counties Code entitles the State’s Attorney to the following: “For each conviction in
prosecutions on indictments for first degree murder, second degree murder, involuntary
manslaughter, criminal sexual assault, aggravated criminal sexual assault, aggravated criminal
sexual abuse, kidnapping, arson and forgery, $30. All other cases punishable by imprisonment
in the penitentiary, $30.” 55 ILCS 5/4-2002(a) (West 2010). As the Second District noted in
Martino, section 4-2002(a) thus provides that the State’s Attorney fee may be assessed “on a
per-conviction basis.” Martino, 2012 IL App (2d) 101244, ¶ 47, 970 N.E.2d 1236.
Accordingly, the clerk’s imposition of two State’s Attorney fees was proper.
¶ 73 To summarize, we conclude the circuit clerk could impose only one of each of the
following fees: (1) the document storage fee, (2) the automation fee, (3) the circuit clerk fee,
and (4) the court security fee. However, the clerk could impose two court finance fees and two
State’s Attorney fees based on defendant being convicted of two felony counts.
¶ 74 III. CONCLUSION
¶ 75 For the reasons stated, we affirm the trial court’s judgment, vacate the improperly imposed
fines and fees, and remand with directions for the trial court to impose any mandatory fines as
authorized at the time of the offense and apply defendant’s per diem credit against any
creditable fines imposed on remand. As part of our judgment, we award the State its $50
statutory fee against defendant as costs of this appeal. 55 ILCS 5/4-2002(a) (West 2010).
¶ 76 Affirmed in part and vacated in part; cause remanded with directions.
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