People v. Lovelace

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Date: 2018.07.11
Appellate Court 16:43:17 -05'00'
People v. Lovelace, 2018 IL App (4th) 170401
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CURTIS T. LOVELACE, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-17-0401
Filed May 22, 2018
Decision Under Appeal from the Circuit Court of Adams County, No. 14-CF-488; the
Review Hon. Robert G. Hardwick, Judge, presiding.
Judgment Affirmed.
Counsel on Jon Loevy, Tara Thompson, and Debra Loevy, of The Exoneration
Appeal Project, of Chicago, for appellant.
Patrick Delfino, David J. Robinson, and Luke McNeill, of State’s
Attorneys Appellate Prosecutor’s Office, of Springfield, for the
People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Presiding Justice Harris and Justice DeArmond concurred in the
judgment and opinion.
OPINION
¶1 In August 2014, an Adams County grand jury indicted defendant, Curtis T. Lovelace, for
first degree murder (720 ILCS 5/9-1(a)(2) (West 2012)). Defendant’s first trial ended in a
mistrial because the jury could not reach a unanimous verdict.
¶2 Subsequently, the trial court reduced defendant’s bail to $3.5 million. In June 2016, various
third parties posted a $350,000 cash bond on defendant’s behalf to secure his release pending
trial. The trial court ordered electronic monitoring of defendant as a condition of his release.
¶3 In September 2016, the trial court granted defendant’s motion to change venue. In March
2017, a Sangamon County jury found defendant not guilty. The trial court entered an order
releasing defendant from all conditions of his bond but ordered the circuit clerk to retain the
bond “pending an assessment of applicable costs.”
¶4 Later in March 2017, defendant filed a motion for return of bond in which he requested that
the entire bond should be returned less the actual costs of electronic monitoring. In April 2017,
the trial court conducted a hearing on the amount of the bond that should be refunded.
Ultimately, the court ordered the circuit clerk to retain $35,000, which was 10% of the posted
cash bond and which the court noted was provided by statute (725 ILCS 5/110-7(f) (West
2016)), and $5433.75 in electronic monitoring costs.
¶5 Defendant appeals, raising nonconstitutional and constitutional challenges. For his
nonconstitutional claims, defendant argues the trial court (1) failed to exercise its discretion
under the statute or (2) abused its discretion by considering inappropriate factors when it
ordered the retention of 10% of the posted bond. As to his constitutional claims, defendant
argues that the 10% bail bond statute (id.) (1) is facially unconstitutional; (2) violates due
process because it did not provide for a hearing on defendant’s ability to pay; (3) is
unconstitutional as applied to him, based upon the Supreme Court’s holding in Nelson v.
Colorado, 581 U.S. ___, 137 S. Ct. 1249 (2017), because he was acquitted; (4) violates the
equal protection clause of the federal constitution and the uniformity clause of the Illinois
Constitution; and (5) is an excessive fine in violation of the eighth amendment of the United
States Constitution and the Illinois Constitution’s proportionate penalty provision. We
disagree with all of these contentions and affirm.
¶6 I. BACKGROUND
¶7 A. The State’s Charges and the First Trial
¶8 In August 2014, an Adams County grand jury indicted defendant on the charge of first
degree murder (720 ILCS 5/9-1(a)(2) (West 2012)). The trial court set defendant’s bail at $5
million. Defendant was unable to post bond and remained in custody through his first trial,
which occurred in February 2016. The jury was unable to reach a unanimous verdict, and the
court declared a mistrial.
¶9 B. Defendant’s Motion to Reduce Bail
¶ 10 Later in March 2016, defendant filed a motion to reduce bail, stating that he had exhausted
all of his assets in defending the first trial. His motion added that “[i]f the Court were to set a
more reasonable bond, there are friends who would post security *** sufficient to ensure his
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release from custody and appearance at trial.” In May 2016, the trial court denied his request to
reduce bail.
¶ 11 In May 2016, defendant filed a “Renewed and Unopposed Motion to Reduce Bail,”
explaining the State did not oppose a reduction in bond to $3.5 million. Defendant’s motion
stated “committed friends and supporters *** are willing and able to post the cash needed for a
$3.5 million bond.”
¶ 12 In June 2016, the trial court granted defendant’s motion and reduced bail to $3.5 million.
As a condition of release, the court ordered defendant to be confined to his home, wear an
electronic monitoring device, and pay specified fees associated with electronic monitoring,
with payment to come from the bond.
¶ 13 The appearance bond in the record indicates defendant paid $350,000 as 10% bond on June
6, 2016. However, the parties agree—and, as explained below, the trial court found—the cash
bond was in fact paid by third parties.
¶ 14 C. Change of Venue and the Second Trial
¶ 15 In September 2016, defendant filed a motion for change of venue. Defendant argued
extensive media coverage and his status in the community had resulted in a tainted jury pool.
The trial court granted the motion and transferred the case to Sangamon County for trial.
¶ 16 In March 2017, after a two-week trial, the jury found defendant not guilty of first degree
murder. The trial court entered an order releasing defendant from all conditions of bond but
ordered the bond “to be retained by the Adams County Circuit Clerk pending assessment of
applicable costs.”
¶ 17 D. Proceedings Related to the Return of Bond
¶ 18 1. The Trial Court’s Proposed Order
¶ 19 Approximately two weeks after the acquittal, the court, on its own initiative, entered an
order providing as follows:
“On June 7[,] 2016, the Defendant had $350,000.00 cash bond posted for him by
others, all without a bond assignment. The Defendant has been found not guilty in
Sangamon County after a jury trial with that verdict coming on March 10, 2017.
The bond, after applicable fees, needs to be returned. The Court proposes that the
bond held by the Adams County Circuit Clerk be returned as in the proposed Order to
Refund Bonds attached as Ex. “A.”
A hearing on this matter is scheduled for: April 19, 2017[,] at 3:00 pm at the Cass
County Courthouse, Virginia, IL.
If any interested party objects to the return of the bond as proposed in the attached
Ex ‘A’ they should file a written objection with the Adams County Circuit Clerk with a
copy to Judge Bob Hardwick ***.”
A copy of the order was sent to the State, defendant, the law firm of Beckett & Webber, and
Rich Herr.
¶ 20 The proposed order noted the defendant had bond posted for him and “Beckett & Webber
attorneys[—]Urbana, IL” paid $300,000 and Rich Herr paid $50,000. The proposed order
further stated “[t]he only applicable fees to be assessed against those sums are the 10% bond
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fees plus the electronic monitoring fees of $5433.75 (which have been paid).” In the order, the
court proposed the “fees/expenses” would be shared pro rata. Accordingly, the order allocated
$30,000 of the $35,000 bail bond fee to Beckett & Webber and $5000 to Rich Herr. In
addition, the order calculated Beckett & Webber was responsible for six-sevenths of the
electronic monitoring fees totaling $4657.50, while Rich Herr bore the remaining $776.25.
The proposed order concluded by directing the clerk to “refund the balance of the bonds,” as
follows: “Beckett & Weber [sic] $265,342.50[,] Rich Herr $44,223.75.”
¶ 21 2. Defendant’s Motion
¶ 22 Defendant filed a motion in March 2017 for return of the cash bond. In his motion,
defendant calculated the costs of hook-up and monitoring—previously ordered to be paid out
of his bond—to be $5696.25. As such, defendant requested the court order $344,303.75
returned to the individuals who posted the bond on defendant’s behalf. His motion did not
contain any substantive arguments.
¶ 23 3. The Arguments of the Parties
¶ 24 In April 2017, the trial court conducted a hearing regarding the return of the posted cash
bond. The State argued that section 110-7 of the Code of Criminal Procedure of 1963 (725
ILCS 5/110-7 (West 2016)) made clear that bond not only secures a defendant’s presence at
trial but also provides a fund from which costs can be paid at the court’s discretion. The State
acknowledged that the cases interpreting section 110-7(f) have held that the trial court could
return more than the statutory amount of 90% of the posted bond. However, the State argued
the proper bond fee in this case was the 10% provided by statute, in addition to the electronic
monitoring costs.
¶ 25 Defendant argued the court should return the full amount of the bond and order the circuit
clerk to retain only the actual electronic monitoring costs. Defendant pointed out that his
prosecution had been “financially devastating” and “depleted his life’s savings.” Further, he
asserted that, because the jury had found him not guilty, imposing a charge on him created a
“constitutional problem.” According to defendant, the court’s retaining 10% of the bond would
be “punitive” and “arbitrary” because it was being imposed upon an innocent person.
Nonetheless, defendant admitted the court should charge some fee but argued the fee should
only be the $5433.75 in actual costs and not $35,000 as provided by statute.
¶ 26 4. The Trial Court’s Ruling on Return of Bond
¶ 27 The trial court first ordered the $5433.75 in electronic monitoring costs to be paid from the
posted bond. The court then examined whether the circuit clerk should retain a 10% bail bond
fee, concluded that the circuit clerk should, and explained, as follows:
“The statute is pretty clear, the purpose is to insure compliance with conditions of
bond, but also to help defray expenses and those are in the case decisions that have
come down. The court does have authority to order less than ten percent of the bond fee
to be held and as [the State] said, there is not a lot of cases out there. There is
people—there are cases that have talked about ten percent whether it can be withheld or
not, but nothing that really addresses this in any kind of detail. Actually, I thought there
would be more cases [that] I could find. And I don’t know if you looked, [defense
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counsel], but if you had found a lot of cases, I know you well enough you would have
been talking to me about them. I have been in this business for close to forty years. I
don’t know that I have ever seen less than 10 percent in bond fee withheld. That’s one
of the ways the [circuit] clerks basically fund their office. It wasn’t the [circuit]
[c]lerk’s office that indicted Mr. Lovelace, it was the grand jury. We have had four
weeks of trial, two weeks in Adams County, two weeks in Sangamon County. We have
had the additional expenses of Sangamon County on a change of venue which was on
the defendant’s motion. Turned out to be a good expense since you got a not guilty out
of that, but in any event, I am going to order that the bond, the $350,000 be—I am
basically going to order that the proposed order that I sent out last month that I am
going to sign that. In other words, $5,433.75 is going to be withheld for electronic
monitoring expenses and there will be a 10 percent bond fee of $35,000.”
¶ 28 Defendant appeals, raising nonconstitutional and constitutional challenges. For his
nonconstitutional claims, Defendant argues the trial court (1) failed to exercise its discretion
under the statute or (2) abused its discretion by considering inappropriate factors when it
ordered the retention of 10% of the posted bond. As to his constitutional claims, defendant
argues that the 10% bail bond statute (725 ILCS 5/110-7(f) (West 2016)) (1) is facially
unconstitutional; (2) violates due process because it did not provide for a hearing on
defendant’s ability to pay; (3) is unconstitutional as applied to him, based upon the Supreme
Court’s holding in Nelson, 581 U.S. ___, 137 S. Ct. 1249, because he was acquitted;
(4) violates the equal protection clause of the federal constitution and the uniformity clause of
the Illinois Constitution; and (5) is an excessive fine in violation of the eighth amendment of
the United States Constitution and the Illinois Constitution’s proportionate penalty provision.
We disagree with all of these contentions and affirm.
¶ 29 II. ANALYSIS
¶ 30 Defendant’s arguments on appeal fall into two categories: (1) constitutional challenges to
the bail bond statute and (2) nonconstitutional challenges. Consistent with directions from the
Illinois Supreme Court regarding how lower courts should handle cases in which both
constitutional and nonconstitutional claims are raised, we will first address defendant’s
nonconstitutional claims. See People v. Chairez, 2018 IL 121417, ¶ 13 (courts should “decide
constitutional questions only to the extent required by the issues in the case” (internal
quotation marks omitted)); see also In re Dustyn W., 2017 IL App (4th) 170103, ¶ 24, 81
N.E.3d 88 (“Only if we conclude that the trial court did not abuse its discretion by imposing the
probationary condition at issue should we then consider whether this condition violated
respondent’s constitutional rights.”).
¶ 31 A. The Trial Court Did Not Abuse Its Discretion
¶ 32 Defendant argues the trial court erred by ordering the circuit clerk to retain a 10% bail bond
fee. He contends the court abdicated its discretion because it simply ruled the way it always
had for the past 40 years. Additionally, defendant asserts the court refused to consider “the
only relevant factor”—defendant’s ability to pay—and instead considered impermissible ones,
such as defendant’s seeking a change in venue and maintaining his innocence. Last, defendant
claims the trial court abused its discretion by ordering the clerk to retain the 10% fee in
addition to the $5433.75 of actual expenses.
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¶ 33 Section 110-7(f) “grants a trial court the discretionary authority to return more than 90% of
a bail deposit under appropriate circumstances.” People v. Fox, 130 Ill. App. 3d 795, 797, 475
N.E.2d 1, 2 (1985). The abuse-of-discretion standard of review is highly deferential. People v.
Peterson, 2017 IL 120331, ¶ 125. A reviewing court will reverse only when “the trial court’s
decision is arbitrary, fanciful, or unreasonable to the degree that no reasonable person would
agree with it.” (Internal quotation marks omitted.) Id. However, a trial court errs if it fails to
understand it has discretion to act or wholly fails to exercise its discretion. Fox, 130 Ill. App.
3d at 797; People v. Queen, 56 Ill. 2d 560, 565, 310 N.E.2d 166, 169 (1974).
¶ 34 In reaching its decision, the trial court explicitly acknowledged its authority to order an
amount less than 10% of the posted bond be retained as costs. The court also properly
understood the purpose of the bail bond fee when it stated it was for the purpose of defraying
the costs of administration. We agree with the State that the court’s statement, that it “ha[d]
been in this business for close to forty years” and “[didn’t] know that [it] ha[d] ever seen less
than 10 percent in bond fee withheld,” was merely a personal observation that did not affect its
exercise of discretion. See People v. Steppan, 105 Ill. 2d 310, 323, 473 N.E.2d 1300, 1307
(1985) (“The fact that the sentencing judge added some personal observations before imposing
sentence, while not to be encouraged, is of no consequence.”).
¶ 35 Additionally, the trial court did not act improperly when it considered the length of the
proceedings and change in venue. The court clearly believed having two trials in two different
counties increased the costs of administering the bail bond system, thereby justifying retention
of the 10% amount set by statute. Although we do not necessarily concur with the trial court’s
reasoning (no evidence was presented at the hearing or on appeal as to what the actual costs of
administration of the bail bond system are or what factors impact that administration), the
court’s ruling was not, as defendant suggests, a penalty for defendant’s exercising his right to
change venue and his acquittal. We conclude the trial court did not act arbitrarily.
¶ 36 We are especially disinclined to find an abuse of discretion in this situation in which the
trial court made clear it knew it had discretion and attempted to set forth its reasoning for how
it exercised that discretion. We encourage trial courts to thoroughly set forth the bases for their
rulings because their doing so is a great assistance to the reviewing courts.
¶ 37 Finally, defendant forfeited any argument that the trial court abused its discretion by
ordering the circuit clerk to retain the 10% bail bond fee in addition to the actual costs of
electronic monitoring. Defendant agreed with the court that electronic monitoring costs should
be paid out of the bond, as the court had previously ordered. Defendant never argued the
electronic monitoring costs should be deducted from the 10% bail bond fee or that the trial
court was limited in assessing all costs only up to 10% of the posted bail bond. Therefore, these
arguments are forfeited. See People v. Pendleton, 223 Ill. 2d 458, 475, 861 N.E.2d 999, 1009
(2006).
¶ 38 B. Defendant’s Constitutional Claims
¶ 39 Because the trial court did not abuse its discretion, we need to address defendant’s
arguments that the bail bond statute is unconstitutional. Regarding each of his constitutional
claims, defendant first argues the statute is unconstitutional on its face and then argues in the
alternative that the statute is unconstitutional as applied to him. Because we find the bail bond
statute constitutional as applied to defendant, his facial challenges necessarily fail. See In re
M.A., 2015 IL 118049, ¶ 49, 43 N.E.3d 86 (“Because the Violent Offender Act does not violate
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procedural due process as applied to M.A., it follows that the Act also is not facially
unconstitutional.”). We address each argument in turn.
¶ 40 1. The Statutory Language at Issue
¶ 41 Defendant challenges the constitutionality of the 10% bail bond statute. 725 ILCS 5/110-7
(West 2016). Specifically, defendant challenges subsection (f), which states, in relevant part,
the following:
“When the conditions of the bail bond have been performed and the accused has been
discharged from all obligations in the cause[,] the clerk of the court shall return to the
accused or to the defendant’s designee by an assignment executed at the time the bail
amount is deposited, unless the court orders otherwise, 90% of the sum which had been
deposited and shall retain as bail bond costs 10% of the amount deposited. However, in
no event shall the amount retained by the clerk as bail bond costs be less than $5.
Notwithstanding the foregoing, in counties with a population of 3,000,000 or more, in
no event shall the amount retained by the clerk as bail bond costs exceed $100.” Id.
§ 110-7(f).
¶ 42 In 1969, the legislature amended section 110-7(f) by adding the phrase “unless the court
orders otherwise.” Pub. Act 76-1195, § 1 (eff. Sept. 4, 1969). In 2015, the legislature amended
section 110-7(f) to include the final sentence quoted above. Pub. Act 99-412, § 5 (eff. Jan. 1,
2016) (amending 725 ILCS 5/110-7(f)). With these exceptions, the statute is unchanged from
its original form as enacted in 1963.
¶ 43 2. Defendant’s Ability to Pay
¶ 44 Defendant first argues the bail bond statute is unconstitutional as applied to him because
the trial court did not hold a hearing or consider his inability to pay the bail bond fee.
According to defendant, the Illinois Supreme Court’s holding in People v. Cook, 81 Ill. 2d 176,
407 N.E.2d 56 (1980), as well as later cases following Cook, requires a court to hold a hearing
to consider a defendant’s ability to pay before ordering an indigent defendant to reimburse the
costs of his prosecution. Defendant asserts he was found indigent at a prior bail bond hearing
and, therefore, the court’s failure to hold and the statute’s failure to require a hearing on his
ability to pay violated his procedural due process rights. We disagree.
¶ 45 In Cook, the Illinois Supreme Court examined the constitutionality of former section
110-7(g), which provided, “ ‘Whenever a defendant who has been admitted to bail utilizes the
services of a public defender or other appointed counsel,’ ” the bond may be used to reimburse
the county for the legal services. Cook, 81 Ill. 2d at 180 (quoting Ill. Rev. Stat. 1979, ch. 38,
¶ 110-7(g)). The court found the statute required only those indigent defendants who posted
bail to pay for legal services while other indigent defendants who received the same services
did not, simply because they were released on personal recognizance or otherwise did not post
bail. Id. at 181. The court concluded there was no rational basis for the distinction because the
posting of bail did not per se mean a defendant had the ability to pay. Id. at 183. Therefore, the
court held that former section 110-7(g) violated equal protection. Id. The court further held that
“[a] summary decision which orders reimbursement without affording a hearing with
opportunity to present evidence and be heard acts to violate an indigent defendant’s right to
procedural due process.” Id. at 186. (We note that section 110-7(g) was repealed and replaced
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by section 113-3.1, which was enacted to address the constitutional problems in Cook. See
Pub. Act 82-708 (eff. July 1, 1982); Pub. Act 83-336 (eff. Sept. 14, 1983).)
¶ 46 Contrary to defendant’s claim that former section 110-7(g) “is indistinguishable for
constitutionality purposes,” the bail bond statute does not suffer from the problems discussed
in Cook. Most significantly, section 110-7(f) does not distinguish between one class of
indigent defendants and another. In fact, the plain language of the statute makes clear it does
not distinguish between any defendants at all. Instead, all defendants, wealthy or poor, found
guilty or not guilty, receiving appointed counsel or not, pay the same 10% bail bond fee
pursuant to section 110-7 when they post a bail bond. See Schilb v. Kuebel, 404 U.S. 357,
370-71 (1971).
¶ 47 Moreover, the statute and the bail bond scheme as a whole provide sufficient due process to
defendants. When posting a 10% bail bond, the bond form must “include a written notice to
such person who has provided the defendant with the money for the posting of bail indicating
that bail may be used to pay costs.” 725 ILCS 5/110-7(a) (West 2016). Section 110-7(f)
explicitly provides the clerk shall retain a 10% bail bond fee “unless the court orders
otherwise.” Id. § 110-7(f). Courts have held this provides the trial court with discretion to
retain less than 10% as provided by statute. Fox, 130 Ill. App. 3d at 797. Further, defendants
are permitted to petition the court to reduce bail at any time. 725 ILCS 5/110-6 (West 2016).
Accordingly, the statute permits defendants to petition the court for return of a different sum
based on their ability to pay. And, as other courts have recognized, ability to pay is but one of
the factors a court may consider in setting the amount of bail in the first instance. Id. § 110-5;
Platt v. Brown, No. 16 C 3898, 2017 WL 1196921, *4 (N.D. Ill. Mar. 31, 2017); see also
Payton v. County of Carroll, 473 F.3d 845, 851-52 (7th Cir. 2007) (holding ability to petition
court for lower bail was one factor which indicated the charging of a bail bond fee did not
violate due process). Therefore, the bail bond statute does not violate equal protection or
procedural due process under Cook, and the trial court was not required to consider defendant’s
ability to pay when deciding how much of defendant’s cash bail bond to refund.
¶ 48 Even assuming due process did require such a hearing, defendant was afforded that
opportunity. In this case, defendant successfully petitioned the trial court to lower his bail
based on his indigence and his representations that third parties had the funds to post bond.
After the jury returned a not guilty verdict, the court provided notice of a hearing on the issue
of the amount of the bond to be returned and invited written submissions from any interested
person. Defendant submitted a motion for return of the bail bond but did not raise any of the
arguments he now raises in this appeal. At the hearing, defendant was present and had the
opportunity to present evidence. To the extent defendant claims he was denied the opportunity
to present evidence, he failed to request an evidentiary hearing. Moreover, defendant did argue
that the case had been “financially devastating” and “depleted his life savings.” Accordingly,
defendant had the opportunity to and did raise the issue of his ability to pay. Accordingly, he
was not denied due process.
¶ 49 3. Retention of the Bond Fee Despite Acquittal
¶ 50 Defendant next argues section 110-7(f) is unconstitutional as applied to him because he
was acquitted. In essence, defendant asserts the bail bond fee amounts to a punishment on an
acquitted person. The State counters that the United States Supreme Court rejected defendant’s
arguments in Schilb v. Kuebel, 404 U.S. 357. However, defendant claims the United States
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Supreme Court’s recent holding in Nelson, 581 U.S. ___, 137 S. Ct. 1249, essentially overruled
Schilb. We disagree and find Nelson distinguishable.
¶ 51 a. The Schilb Cases
¶ 52 Defendant’s argument has been expressly rejected by both the Illinois Supreme Court and
the Supreme Court of the United States. In Schilb v. Kuebel, 46 Ill. 2d 538, 264 N.E.2d 377
(1970) (Schilb I), the plaintiffs argued section 110-7(f) violated the equal protection and due
process clauses of the federal constitution and related provisions of the Illinois Constitution.
Id. at 542. Specifically, the plaintiffs claimed the 10% bail bond fee violated equal protection
because it was only imposed when defendants posted a 10% cash bail under section 110-7(f)
but not when they were released on recognizance or when they posted the full amount of bail in
cash or other securities under section 110-8. Id. The plaintiffs further contended the bail bond
fee constituted an assessment of costs against defendants found not guilty. Id. The Illinois
Supreme Court explained the legislature enacted the bail bond scheme to return control of the
bail bond system to the courts. Id. at 543-44. Previously, professional bail bondsmen charged
defendants a 10% fee and pocketed the full amount regardless of compliance, but the actual
judgments on forfeitures paid by professional bondsmen amounted to only 1% of the bonds
written. Id. at 544. Section 110-7(f) permitted the return of 90% of the bond deposited upon
compliance, thus encouraging compliance. Id. at 546. The 10% fee (1% of the total bail) was
retained as costs of administering the 10% bail bond system. Id. at 544, 548.
¶ 53 The court found that defendants had three methods of securing release and those who
voluntarily choose to use the 10% system “constitute[d] a separate class under the legislative
plan and purpose as already indicated.” Id. at 548. The court stated that “we know of no law or
constitutional provision which would preclude [criminal defendants] being required to pay a
reasonable amount for the privilege extended to those who elect to come into this class. The
requirement of a fee to help defray the cost of administrative services in the courts is a
traditional and basic concept recognized as valid by this court.” Id. The court further noted the
“bond costs *** are chargeable regardless of what subsequently occurs in the prosecution of
the case and regardless of the guilt or innocence of the accused.” Id. at 551-52. In reaching this
conclusion, the court determined the bail bond fee was not a cost of prosecution and conceded
court costs could not be assessed against an acquitted defendant. Id. at 552. However, that
concession “has no bearing whatever on bond costs and the retention of a percentage of such
costs is not tantamount to the assessment of court costs against a discharged defendant.” Id.
Accordingly, the fee charged in section 110-7(f) was supported by a rational basis and did not
violate equal protection or due process. Id.
¶ 54 Subsequently, the United States Supreme Court granted certiorari and affirmed. Schilb,
404 U.S. 357 (Schilb II). The plaintiffs made the same arguments to that Court that
(1) disparate treatment depended on the method of securing release and (2) the fee constituted
a penalty on an acquitted person. Id. at 365-66. The Court noted the statute “smacks of
administrative detail and of procedure and is hardly to be classified as a ‘fundamental’ right or
as based upon any suspect criterion” and, thus, any rational basis for the law would support it.
Id. at 365. The Court examined the legislative history of the bail bond scheme and noted the
purpose of the bail bond fee was to offset the costs of administering the bail bond system. Id. at
360-68. The Court explained that, because “with a recognizance, there is nothing the State
holds for safekeeping, with resulting responsibility and additional paperwork,” there is a
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rational basis for not charging those defendants a fee. Id. at 367. “Further, the State’s
protection against the expenses that inevitably are incurred when bail is jumped is greater
when 100% cash or securities or real estate is deposited or obligated than when only 10% of
the bail amount is advanced.” Id. Thus, the Court concluded that the statute had a rational
relationship to the State’s legitimate interest in defraying the expenses of administering the bail
bond system as a whole. Id. at 367-68, 370-72.
¶ 55 Additionally, the Supreme Court explained that the bail bond fee statute is not “a vehicle
for the imposition of costs of prosecution.” Id. at 370. Instead, the “bail bond costs” “is what
that description implies, namely, an administrative cost imposed upon all those, guilty and
innocent alike, who seek the benefit of § 110-7.” Id. at 370-71. The Court noted its “conclusion
is supported by the presence of the long-established Illinois rule against the imposition of costs
of prosecution upon an acquittal or discharged criminal defendant, Wells v. McCullock, 13 Ill.
606 (1852), and by the Illinois court’s own determination [in Schilb I] that the charge under
§ 110-7(f) is an administrative fee and not a cost of prosecution imposed *** only upon the
convicted defendant.” Id. at 371.
¶ 56 b. Nelson v. Colorado
¶ 57 In Nelson, the Supreme Court considered whether “the State [is] obliged to refund fees,
court costs, and restitution exacted from the defendant upon, and as a consequence of, the
conviction” when that conviction is invalidated by a reviewing court and no retrial will occur.
(Emphasis added.) Nelson, 581 U.S. at ___, 137 S. Ct. at 1252. The petitioners in Nelson were
convicted and sentenced to pay costs, fees, and restitution pursuant to various sentencing
statutes. Id. at ___, 137 S. Ct. at 1252-53. On direct appeal, their convictions were vacated. Id.
at ___, 137 S. Ct. at 1253. Petitioners sought return of the amounts paid. Id. at ___, 137 S. Ct. at
1253. The only avenue for petitioners to regain the amounts paid was pursuant to a statute
requiring them to prove by clear and convincing evidence they were actually innocent. Id. at
___, 137 S. Ct. at 1254. The Colorado Supreme Court found the statute offered sufficient
procedure and denied petitioners’ claims. Id. at ___, 137 S. Ct. at 1254.
¶ 58 The United States Supreme Court reversed, finding the petitioners’ procedural due process
rights were violated pursuant to the balancing test in Mathews v. Eldridge, 424 U.S. 319
(1976). Nelson, 581 U.S. at ___, 137 S. Ct. at 1255-58. The Court made clear “[t]he sole legal
basis for these assessments was the fact of [petitioners’] convictions. Absent those convictions,
Colorado would have no legal right to exact and retain petitioners’ funds.” Id. at ___, 137 S. Ct.
at 1253. It stated “Colorado may not retain funds taken from [petitioners] solely because of
their now-invalidated convictions ***.” (Emphasis added.) Id. at ___, 137 S. Ct. at 1256. The
Court concluded: “To comport with due process, a State may not impose anything more than
minimal procedures on the refund of exactions dependent upon a conviction subsequently
invalidated.” (Emphasis added.) Id. at ___, 137 S. Ct. at 1258.
¶ 59 c. Analysis
¶ 60 Nelson is plainly distinguishable and has no bearing on this case. In Nelson, the Court was
abundantly clear it was addressing the ability of a state to retain funds from a defendant as a
consequence of a conviction. Here, the bail bond fee is not related in any way to a defendant’s
being found guilty or not guilty. Instead, the fee is “an administrative cost imposed upon all
those, guilty and innocent alike, who seek the benefit of § 110-7.” Schilb II, 404 U.S. at
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370-71. The purpose of the bond is to ensure defendant’s appearance, and the bond is returned
“[w]hen the conditions of the bail bond have been performed and the accused has been
discharged from all obligations in the cause.” 725 ILCS 5/110-7(f) (West 2016). By the
statute’s plain language, the fee is retained as long as the defendant complies with its terms and
is discharged when the case is over. In other words, the bail bond fee is not assessed “as a
consequence of [a] conviction” (Nelson, 581 U.S. at ___, 137 S. Ct. at 1252), and therefore, the
Supreme Court’s ruling in Nelson did not have any effect upon its holding in Schilb.
¶ 61 Both defendant and the State address the three-factored test for procedural due process in
Mathews. The State urges this court to follow the reasoning of a federal district court in Platt ,
2017 WL 1196921, and the Seventh Circuit’s subsequent affirmation in Platt v. Brown, 872
F.3d 848 (7th Cir. 2017). Defendant correctly points out that federal decisions are merely
persuasive authority and not binding on this court. See Travelers Insurance Co. v. Eljer
Manufacturing, Inc., 197 Ill. 2d 278, 302, 757 N.E.2d 481, 496 (2001). Further, defendant
criticizes the district court’s decision because it was issued before the Supreme Court decided
Nelson. Defendant also criticizes the Seventh Circuit’s decision because it did not refer to
Nelson or conduct the Mathews balancing test despite the Seventh Circuit’s opinion being
issued after Nelson.
¶ 62 As explained above, we need not consider Mathews because Nelson has no application to
this case. In addition, we note that we are persuaded by the analyses in the decisions of the
federal courts in Platt. It is of no moment that the Seventh Circuit did not address Nelson
because Nelson has no bearing on the constitutionality of section 110-7(f).
¶ 63 We note that similar bail bond fee statutes have been upheld by other courts. See Board of
County Commissioners v. Farris, 342 N.E.2d 642, 645 (Ind. Ct. App. 1976) (upholding
constitutionality of 10% bail bond fee statute); Estate of Payne v. Grant County Court, 508
N.E.2d 1331, 1334-35 (Ind. Ct. App. 1987) (same); Buckland v. County of Montgomery, 812
F.2d 146, 148-49 (3d Cir. 1987) (finding statute that allowed each county to collect a
“reasonable” fee for defendants who post 10% bail constitutional when counties retained as
much as 3% of total bail amount); Broussard v. Parish of Orleans, 318 F.3d 644, 656-57 (5th
Cir. 2003) (holding statutory fee over and above amount of bail constitutional, including under
Mathews); Enlow v. Tishomingo County, 45 F.3d 885, 889 (5th Cir. 1995) (upholding district
court’s analysis of Mississippi’s 2% bail bond fee under Mathews). See also Payton, 473 F.3d
845 (upholding fee imposed by sheriffs on arrestees who post bail bond at jail under Mathews).
¶ 64 4. The Uniformity Clause and Equal Protection
¶ 65 Defendant’s equal protection claims have two components. First, defendant argues the bail
bond statute treats defendants who bond out under section 110-7(f) in Cook County differently
than in all other counties without a rational basis for doing so, thereby violating the uniformity
clause of the Illinois Constitution. Second, he contends that the bail bond statute violates the
equal protection clauses of the Illinois and United States Constitutions because it
impermissibly distinguishes between defendants who post bond under section 110-7(f) and
those who are released on recognizance or otherwise do not post bond. Because defendant’s
challenges rest on different premises, we address each in turn.
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¶ 66 a. Uniformity Clause
¶ 67 Defendant argues the bail bond statute violates the uniformity clause of the Illinois
Constitution because it caps the bail bond fee at $100 for defendants in counties with a
population of over 3 million, while all other counties are permitted to retain 10% of the posted
bail bond (1% of the total bond amount). Because defendant posted bond in Adams County, he
was required to pay a bail bond fee of $35,000, whereas an identical defendant in Cook County
would have only paid $100. Defendant contends there is no rational basis for this distinction.
We disagree.
¶ 68 The uniformity clause of the Illinois Constitution provides that “[i]n any law classifying
the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the
subjects and objects within each class shall be taxed uniformly.” Ill. Const. 1970, art. IX, § 2.
“A plaintiff challenging such a classification has the burden of showing that it is arbitrary or
unreasonable; if a state of facts can be reasonably conceived that would sustain it, the
classification must be upheld.” Geja’s Cafe v. Metropolitan Pier & Exposition Authority, 153
Ill. 2d 239, 248, 606 N.E.2d 1212, 1216 (1992). The uniformity clause “was intended to
encompass the equal protection clause and add to it even more limitations on government.” Id.
at 247. Therefore, “[i]f a tax is constitutional under the uniformity clause, it inherently fulfills
the requirements of the equal protection clause.” Id.
¶ 69 The simplest explanation for the disparate treatment between counties with a population of
over 3 million and those without is that the legislature believed the bail bond system could be
adequately funded in much larger counties by other sources. We will take judicial notice that
Cook County is the only county in this state that has a population of over 3 million, and it is
certainly reasonable to assume that Cook County has more sources of general revenue that can
be used to administer the bail bond system. Moreover, the legislature could have reasonably
believed that a $100 fee is sufficient to fund the bail bond system in larger counties because,
presumably, many more people post bail in those counties as opposed to smaller ones.
Whatever the reason, defendant has failed to meet his burden of demonstrating the
classification is unreasonable.
¶ 70 Because we find defendant has failed under the uniformity clause, his claim necessarily
fails under the equal protection clause. Id. Although we do not need to, we will address
defendant’s other equal protection claims because they rest on a different set of classifications.
¶ 71 b. Equal Protection
¶ 72 Defendant argues the reasoning in People v. Cook with regard to former section 110-7(g)
applies with equal force to section 110-7(f). He contends the court in Cook found that section
110-7(g) imposed unequal treatment because the statute did not subject “indigents who have
been released on their own recognizance or who have been unable or unwilling to post bail” to
the same potential for reimbursement as those who had posted bond. Cook, 81 Ill. 2d at 181.
Defendant argues “[l]ikewise under 110-7(f), defendants who were released on their own
recognizance or were unable or unwilling to post bail were not subjected to the 110-7(f)
penalty.”
¶ 73 To begin, as explained in detail below, the bail bond fee in section 110-7(f) is not a penalty.
More importantly, however, defendant’s arguments were directly addressed and thoroughly
rejected by the Illinois Supreme Court and United States Supreme Court in the Schilb cases.
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We adopt the previous analysis of the Schilb cases as additional reasoning in support of our
conclusion that section 110-7(f) does not violate equal protection. Supra ¶¶ 52-55.
¶ 74 As we explained earlier, Cook and its progeny do not apply to this case. Defendant fails to
provide any other authority to suggest that either the Illinois Supreme Court or the United
States Supreme Court would reach a different result, much less any authority which would call
into question the reasoning or holdings of the Schilb cases. Indeed, other courts that have
considered similar bail bond fee statutes since the Supreme Court’s ruling in Schilb have
upheld them. See supra ¶ 63.
¶ 75 Most recently, the Seventh Circuit reviewed section 110-7(f) and found it passes
constitutional muster. In Platt, in addressing the plaintiffs’ equal protection argument, the
court noted “there is no classification to challenge; everyone within the 10% bail bond system
is treated exactly the same.” Platt, 872 F.3d at 852. The plaintiffs in Platt argued the bail bond
fee violated equal protection because defendants with very high bail paid significantly more
than others. Id. at 851. The Seventh Circuit explained that although charging a percentage fee
necessarily meant some defendants would pay more than others, any difference in outcome
was a disparate impact, not disparate treatment, and therefore “is not a permissible basis for
finding a denial of equal protection.” (Internal quotation marks omitted.) Id.
¶ 76 Further, the court concluded that the bail bond statute was rationally related to multiple
legitimate government interests. Id. at 853. “First, the Fee incentivizes criminal defendants to
avail themselves of the full deposit bail bond system. Under the 10% system, the State bears
90% of the risk that a criminal defendant might jump bail. The government maintains a
legitimate interest in reducing its exposure to this liability.” Id. Additionally, the flat
percentage fee is simple and easy to administer. Id. Finally, the fee “defrays the costs of
administering the bail bond system: both the administrative costs as well as the costs of those
who jump bail.” Id. By recouping some of its costs, the State is able to “ensure the stability of
an affordable bond service run by the courts rather than a for-profit entity.” Id.
¶ 77 As we earlier noted, we are persuaded by the analysis in Platt and adopt its reasoning. The
bail bond statute does not distinguish between any class of defendants. Instead, all defendants
who opt to post 10% bond must pay the same percentage fee. Further, any difference in
treatment between defendants who choose to post a percentage of their bail, as opposed to
posting the full amount or being released on recognizance, is rationally related to the legitimate
government interest in defraying the costs of administering the bail bond system. Schilb II, 404
U.S. at 363 n.8; Platt, 872 F.3d at 853. Accordingly, section 110-7(f) does not violate equal
protection.
¶ 78 5. Defendant’s Remaining Constitutional Challenges
¶ 79 Defendant’s last constitutional argument is that the bail bond statute is unconstitutional as
applied to him because it imposes a penalty on an acquitted person in violation of the eighth
amendment’s excessive fines clause, as well as the excessive penalties and proportionate
penalties clauses of the Illinois Constitution. The State responds that the Supreme Court in
Schilb found the bail bond statute imposes a fee, rather than a fine, and therefore the eighth
amendment and proportionate penalty clauses do not apply. Defendant counters that
“decades[’] worth of nuanced Illinois court analysis on the distinction between fines and fees”
mandates a different result. We disagree.
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¶ 80 Although the Schilb cases were decided before many of the cases relied upon by defendant
in his brief, the Schilb holdings are no less binding on this court. No subsequent case has called
into question the holdings or reasoning of the Schilb cases, and the text of the statute is
unchanged. Accordingly, we hold the bail bond fee in section 110-7(f) is (1) an administrative
fee and (2) not a penalty; accordingly, the eighth amendment and proportionate penalties
clause do not apply.
¶ 81 Though we need not address defendant’s claims further, we do so to make clear the bail
bond fee in section 110-7(f) is exactly that, a fee, and the Schilb cases are in line with Illinois’s
fines and fees jurisprudence.
¶ 82 a. Distinguishing Between a Fine and a Fee
¶ 83 “A fee is defined as a charge that seeks to recoup expenses incurred by the state, or to
compensate the state for some expenditure incurred in prosecuting the defendant. [Citation.] A
fine, however, is punitive in nature and is a pecuniary punishment imposed as part of a
sentence on a person convicted of a criminal offense.” (Internal quotation marks omitted.)
People v. Graves, 235 Ill. 2d 244, 250, 919 N.E.2d 906, 909 (2009). “[T]he most important
factor is whether the charge seeks to compensate the state for any costs incurred as the result of
prosecuting the defendant.” Id. “This is the central characteristic which separates a fee from a
fine. A charge is a fee if and only if it is intended to reimburse the state for some cost incurred
in defendant’s prosecution. [Citations.]” (Emphasis in original.) People v. Jones, 223 Ill. 2d
569, 600, 861 N.E.2d 967, 986 (2006). “Other factors to consider are whether the charge is
only imposed after conviction and to whom the payment is made.” Graves, 235 Ill. 2d at 251.
Further, the legislature’s label of a charge as a fee is strong, but not conclusive, evidence that
the charge is in fact a fee and not a fine. Id. at 250.
¶ 84 b. Analysis
¶ 85 Here, legislative history makes clear the bail bond fee is for the purpose of recovering the
costs of administering the bail bond system. Schilb II, 404 U.S. at 363 n.8 (citing Ill. Ann. Stat.,
ch. 38, art. 110, Committee Comments-1963, at 273, 275-76 (art. 110 introduction), 293
(discussing section 110-7), 307 (discussing section 110-8) (Smith-Hurd 1970)); see also 725
Ann. ILCS 5/110, Committee Comments-1963, at 394 (Smith-Hurd 2006) (“deposit retained
by the county will offset in monetary amount the costs of handling bail bonds *** and any loss
resulting from the occasional bail jumper”); id. § 110-7, at 437 (“deposit retained by the clerk
is to cover costs of handling bail bonds and deposits”); id. § 110-8, at 456 (“[Article 110] is
designed *** to assure to the counties in every case a reasonable amount *** to cover the cost
of time and paper-work in handling bail cases.”). Further, the fee is not imposed after
conviction but instead after the terms of the bond have been complied with and the defendant’s
case is over. 725 ILCS 5/110-7(f) (West 2016). Clearly, then, the bail bond fee is not a “fine”
because it is not imposed on a defendant as a punishment in conjunction with a conviction.
¶ 86 Moreover, the bail bond fee is not intended to reimburse the State for some cost incurred in
defendant’s prosecution because it is not related to defendant’s prosecution at all. Schilb I, 46
Ill. 2d at 551-52; Schilb II, 404 U.S. at 370. Instead, it is a charge imposed on those who elect
to use the benefit of posting 10% bond under section 110-7 to help defray the costs of the bail
bond system. Schilb I, 46 Ill. 2d at 551-52; Schilb II, 404 U.S. at 370. A “fee” is also defined as
“a charge for labor or services, especially professional services.” People v. White, 333 Ill. App.
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3d 777, 781, 776 N.E.2d 836, 839 (2002) (citing Black’s Law Dictionary 629 (7th ed. 1999)).
This definition clearly encompasses the bail bond fee at issue which is best characterized as a
charge for a particular service.
¶ 87 We find further support for this determination in section 113-3.1 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/113-3.1 (West 2016)). Much like the bail bond statute, section
113-3.1 provides the state with a method to recoup costs associated with providing a service to
defendants. See People v. Love, 177 Ill. 2d 550, 560-63, 687 N.E.2d 32, 37-38 (1997)
(discussing Cook and characterizing charges under section 113-3.1 as “reimbursement for
services”). Additionally, defendants are not required to avail themselves of the benefits of
court-appointed counsel; instead, that section applies when defendants voluntarily seek
appointed counsel. Further, trial courts have discretion to determine if assessing fees for
court-appointed counsel is appropriate and, if so, the amount. See People v. Ames, 2012 IL
App (4th) 110513, ¶¶ 53-55, 65, 978 N.E.2d 1119 (setting forth procedure for trial courts to
advise defendants who state they desire counsel but have been unable to hire private counsel of
the possibility of assessing fees for appointed counsel under section 113-3.1). Under both
statutes, the amount of the fee assessed, if any, is determined only at the conclusion of a
defendant’s case.
¶ 88 Moreover, neither statute distinguishes between convicted and acquitted defendants.
Indeed, this court has upheld the application of section 113-3.1 to acquitted defendants. In
People v. Kelleher, defendant was found not guilty after a bench trial, but the trial court
ordered defendant to pay $440 for court-appointed counsel’s services, with payment coming
from defendant’s cash bond. People v. Kelleher, 116 Ill. App. 3d 186, 187, 452 N.E.2d 143,
144 (1983).
¶ 89 Defendant appealed, claiming section 113-3.1 violated due process because it applied to
acquitted as well as convicted defendants. The defendant in Kelleher also contended that the
statute failed to provide notice at the time a cash bond was posted that such bond could be used
for attorney fees. Id. This court rejected both claims and found section 113-3.1 passed
constitutional muster. Id. at 191. We observed that “[a] nonindigent, although acquitted, is
ordinarily required, without reimbursement by the State, to pay for counsel. To require an
indigent, although acquitted, to reimburse the county, to the extent he is able, for the expense
of furnished counsel, tends to put indigents and nonindigents who are acquitted, on the same
basis and is consistent with due process.” Id. at 189. This court relied on the United States
Supreme Court’s reasoning in Schilb to conclude that, like the 10% bail bond fee, the
reimbursement of fees for appointed counsel was not a “cost of prosecution” because the State
was not required to reimburse defendants who hired private counsel. Id. at 189-90.
¶ 90 The court’s reasoning in Kelleher is persuasive. Arguably, an indigent defendant who has
been acquitted received even better service from his court-appointed counsel than a defendant
who has been convicted. Requiring an acquitted defendant to reimburse the State for appointed
counsel is not unconstitutional and does not constitute a fine or penalty. Over the last three
decades, case law recognizing the constitutionality of section 113-3.1 has long been settled. If
defendant’s arguments that the bail bond fee is actually a fine had merit, then the
constitutionality of section 113-3.1 would not be settled law.
¶ 91 Defendant also contends the bail bond fee is either a “tax or fine” because it does not
reimburse the State for any specific charge incurred and instead relates to “general revenue.”
See Crocker v. Finley, 99 Ill. 2d 444, 452, 459 N.E.2d 1346, 1350 (1984) (“a charge having no
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relation to the services rendered, assessed to provide general revenue rather than
compensation, is a tax”). Based on the bail bond statute’s legislative history and the
conclusions in the Schilb cases, we conclude that the bail bond fee serves both as compensation
to the county for the administration of the particular defendant’s bail in each case and as
revenue for the funding of the bail bond system as a whole. See, e.g., 725 ILCS Ann. 5/110,
Committee Comments-1963, at 394 (Smith-Hurd 2006); supra ¶ 85.
¶ 92 Interesting though this question is, ultimately, it makes no difference whether the bail bond
fee is a “fee” or a “tax.” Because the bail bond fee is not imposed as a punishment or as a result
of a conviction, it is not a “fine,” and the eighth amendment and proportionate penalties clause
do not apply.
¶ 93 III. CONCLUSION
¶ 94 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
award the State its $75 statutory assessment against defendant as costs of this appeal. 55 ILCS
5/4-2002 (West 2016).
¶ 95 Affirmed.
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