People v. Stevens

FILED
May 16, 2018
2018 IL App (4th) 150871 Carla Bender
4th District Appellate
NO. 4-15-0871 Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
JEREMI R. STEVENS, ) No. 15CF48
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court, with opinion.
Justices Steigmann and Turner concurred in the judgment and opinion.
OPINION
¶1 In January 2015, defendant, Jeremi R. Stevens, was arrested and charged with
aggravated unlawful use of a weapon. In July 2015, a jury found defendant guilty. At the
September 2015 sentencing hearing, the trial court sentenced defendant to 24 months of
probation.
¶2 On appeal, defendant argues (1) his conviction is void due to the Firearm
Concealed Carry Act (Act) (430 ILCS 66/1 to 999 (West 2014)) being facially unconstitutional,
(2) he was denied effective assistance of counsel due to counsel’s failure to object to the
videotape of defendant’s arrest in a motion in limine hearing, (3) he was denied effective
assistance of counsel due to counsel’s failure to object to testimonial hearsay, and (4) his fines
imposed by the circuit clerk should be vacated. We affirm in part and vacate in part.
¶3 I. BACKGROUND
¶4 In January 2015, defendant was driving westbound on Interstate 74 in the right
lane when he cut in front of a semitruck in the left lane and became boxed in between two
semitrucks. The driver in the truck behind defendant honked at him because the driver believed
there was not enough room to fit in between the two trucks. Upon hearing the honk, defendant
reached into his glove compartment and pulled out a handgun and waved it inside the car,
showing the semitruck driver. The driver called the police, and defendant was arrested.
¶5 The State alleged defendant committed the crime of aggravated unlawful use of a
weapon when he knowingly carried in his vehicle a firearm at a time when he was not on his
own land, in his own abode, or in his own fixed place of business and that firearm was uncased,
loaded, and immediately accessible and defendant had not been issued a currently valid license
under the Act (count 1) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014)). The State also
alleged defendant committed the crime of aggravated unlawful use of a weapon when he
knowingly carried in any vehicle a firearm at a time when he was not on his own land, in his own
abode, or in his own fixed place of business and he was engaged in, or attempting the
commission of, a misdemeanor involving the use or threat of violence against the person or
property of another, namely aggravated battery, in that he, while traveling along Interstate 74,
pointed a Smith and Wesson .40-caliber handgun in the direction of a vehicle, placing the
passengers of the vehicle in reasonable apprehension of receiving a battery (count II) (720 ILCS
5/24-1.6(a)(1), (a)(3)(H) (West 2014)).
¶6 The State filed a motion in limine to admit a certified document from the Illinois
State Police Firearm Services Bureau, which stated defendant had a valid Firearm Owner’s
Identification (FOID) card but not a concealed carry license. Defense counsel did not object to
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the admission of the document, reserving his right to object on relevance grounds, and the
document was admitted.
¶7 In July 2015, a jury trial commenced. At the conclusion of the trial, during the
jury instruction conference, the trial judge dismissed count II because the State failed to present
evidence defendant pointed the gun at anyone. The jury found defendant guilty on count I. In a
September 2015 sentencing hearing, the judge sentenced defendant to 24 months of probation
and assessed fines payable during the first 12 months of his probation.
¶8 This appeal followed. At oral arguments, the parties requested an opportunity to
file supplemental briefs, and the court granted the request.
¶9 II. ANALYSIS
¶ 10 A. Constitutionality of the Act
¶ 11 Defendant argues his conviction, pursuant to sections 24-1.6(a)(1) and (a)(3)(A-5)
of the Criminal Code of 2012 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014)), is void
because the Act is facially unconstitutional. We disagree.
¶ 12 The second amendment of the United States Constitution states “[a] well
regulated Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed.” U.S. Const., amend. II. In District of Columbia v. Heller,
554 U.S. 570, 592 (2008), the United States Supreme Court held the second amendment
“guarantee[s] the individual right to possess and carry weapons in case of confrontation.” “[I]f a
Bill of Rights guarantee is fundamental from an American perspective ***, that guarantee is
fully binding on the States and thus limits (but by no means eliminates) their ability to devise
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solutions to social problems that suit local needs and values.” (Emphasis in original.) McDonald
v. City of Chicago, 561 U.S. 742, 784-85 (2010).
¶ 13 When determining the level of scrutiny that should apply to second amendment
cases, federal circuit courts have looked to the first amendment as a guide. See Ezell v. City of
Chicago, 651 F.3d 684, 703 (7th Cir. 2011). The court must determine “how close the law comes
to the core of the Second Amendment right and the severity of the law’s burden on the right.”
Ezell, 651 F.3d at 703. “[T]he Supreme Court’s First Amendment fee jurisprudence provides the
appropriate foundation for addressing *** fee claims under the Second Amendment.” Kwong v.
Bloomberg, 723 F.3d 160, 165 (2d Cir. 2013).
¶ 14 In the first amendment context, the Supreme Court has held governmental entities
may impose licensing fees when they are designed “ ‘to meet the expense incident to the
administration of the [licensing statute] and to the maintenance of public order in the matter
licensed.’ ” Cox v. New Hampshire, 312 U.S. 569, 577 (1941). “Put another way, imposing fees
on the exercise of constitutional rights is permissible when the fees are designed to defray (and
do not exceed) the administrative costs of regulating the protected activity.” Kwong, 723 F.3d at
165. The licensing fee must serve “the legitimate purpose of defraying the expenses incident to
the administration and enforcement” of the licensing statute. National Awareness Foundation v.
Abrams, 50 F.3d 1159, 1166 (2d Cir. 1995).
¶ 15 “[A] challenge to the constitutionality of a criminal statute may be raised at any
time.” People v. Wright, 194 Ill. 2d 1, 23, 740 N.E.2d 755, 766 (2000). “Statutes are presumed
constitutional, and the party challenging a statute has the burden of establishing a clear
constitutional violation.” People v. One 1998 GMC, 2011 IL 110236, ¶ 20, 960 N.E.2d 1071. A
reviewing court “will affirm a statute’s constitutionality if the statute is reasonably capable of
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such an interpretation.” People v. Johnson, 225 Ill. 2d 573, 584, 870 N.E.2d 415, 421 (2007).
“[W]e will resolve any doubt on the construction of a statute in favor of its validity.” People v.
Boeckmann, 238 Ill. 2d 1, 6-7, 932 N.E.2d 998, 1001 (2010). “Moreover, a challenge to the
facial validity of a statute is the most difficult challenge to mount successfully because an
enactment is invalid on its face only if no set of circumstances exists under which it would be
valid.” One 1998 GMC, 2011 IL 110236, ¶ 20. This effectively means the specific facts of the
case are irrelevant to a facial challenge. “[T]he specific facts related to the challenging party are
irrelevant.” People v. Thompson, 2015 IL 118151, ¶ 36, 43 N.E.3d 984. “The constitutionality of
a statute is a question of law that we review de novo.” People v. Aguilar, 2013 IL 112116, ¶ 15, 2
N.E.3d 321.
¶ 16 Under the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6 (West
2014)), residents and nonresidents are required to have a currently valid license under the Act if
they seek to carry a weapon in any vehicle. Defendant argues the licensing fee of the Act is
unconstitutional because it is allocated to funds with no relation to the administration of the
licensing statute. We disagree.
¶ 17 For nonresidents, like defendant, the State of Illinois charges a $300 fee for a
concealed carry license, of which $250 is apportioned to the State Police Firearm Services Fund,
$40 is apportioned to the Mental Health Reporting Fund, and $10 is apportioned to the State
Crime Laboratory Fund. 430 ILCS 66/60(c) (West 2014).
¶ 18 The State Police Firearm Services Fund is a special fund created to receive
“revenue under the Firearm Concealed Carry Act and Section 5 of the Firearm Owners
Identification Card Act.” 20 ILCS 2605/2605-595(a) (West 2014). The statute states as follows:
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“The Department of State Police may use moneys in the Fund to
finance any of its lawful purposes, mandates, functions, and duties
under the Firearm Owners Identification Card Act and the Firearm
Concealed Carry Act, including the cost of sending notices of
expiration of Firearm Owner’s Identification Cards, concealed
carry licenses, the prompt and efficient processing of applications
under the Firearm Owners Identification Card Act and the Firearm
Concealed Carry Act, the improved efficiency and reporting of the
LEADS and federal NICS law enforcement data systems, and
support for investigations required under these Acts and law. Any
surplus funds beyond what is needed to comply with the
aforementioned purposes shall be used by the Department to
improve the Law Enforcement Agencies Data System (LEADS)
and criminal history background check system.” 20 ILCS
2605/2605-595(b) (West 2014).
¶ 19 The Mental Health Reporting Fund is also a special fund which receives “revenue
under the Firearm Concealed Carry Act.” 30 ILCS 105/6z-99(a) (West 2014). The statute
provides as follows:
“The Department of State Police and Department of Human
Services shall coordinate to use moneys in the Fund to finance
their respective duties of collecting and reporting data on mental
health records and ensuring that mental health firearm possession
prohibitors are enforced as set forth under the Firearm Concealed
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Carry Act and the Firearm Owners Identification Card Act. Any
surplus in the Fund beyond what is necessary to ensure compliance
with mental health reporting under these Acts shall be used by the
Department of Human Services for mental health treatment
programs.” 30 ILCS 105/6z-99(b) (West 2014).
¶ 20 The State Crime Laboratory Fund uses its revenue for purposes that include, but
are not limited to, the following:
“(1) costs incurred in providing analysis for controlled
substances in connection with criminal investigations conducted
within this State;
(2) purchase and maintenance of equipment for use in
performing analyses; and
(3) continuing education, training and professional
development of forensic scientists regularly employed by these
laboratories.” 730 ILCS 5/5-9-1.4(g)(1)-(3) (West 2014).
¶ 21 The State Police Services Fund provides for sending notices of expiration for
concealed carry licenses and improving efficiency in both local and federal criminal
fingerprinting databases, which determines eligibility for concealed carry licenses by assessing
an applicant’s criminal history. 430 ILCS 66/35 (West 2014). The Mental Health Reporting Fund
is responsible for reporting mental health records and allows the Department of Human Services
to investigate an applicant’s mental health and developmental disabilities. 430 ILCS 66/35 (West
2014). The State Crime Laboratory Fund is used to educate and train forensic scientists who may
test ballistics, conduct firearm functionality tests, gunshot residue, DNA analyses, or other
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evidence useful in gun cases. 730 ILCS 5/5-9-1.4(g)(3) (West 2014). The above funds either
cover the administrative costs for the licensing scheme, the enforcement of the scheme, or relate
to the overarching public interest in the management of lawful firearm ownership, which
complies with the Supreme Court’s fee jurisprudence. See Cox, 312 U.S. at 577; see also
National Awareness Foundation, 50 F.3d at 1166. The party challenging the constitutionality of
a statute has the burden of clearly establishing a constitutional violation. Davis v. Brown, 221 Ill.
2d 435, 442, 851 N.E.2d 1198, 1203 (2006). Defendant has presented no evidence the licensing
scheme charges more than is necessary for the administration of the licensing statute and
maintenance of public order in the matter licensed. Cox, 312 U.S. at 577. Defendant cannot
simply shift the burden of research and proof to this court, as it is his burden alone to overcome
the presumption of constitutionality. See People v. Rizzo, 2016 IL 118599, ¶ 48, 61 N.E.3d 92.
As defendant has failed to meet his burden, the Act does not violate the United States
Constitution.
¶ 22 B. Ineffective Assistance of Counsel
¶ 23 A defendant’s claim of ineffective assistance of counsel is analyzed under the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.
Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, “a defendant
must show both that counsel’s performance was deficient and that the deficient performance
prejudiced the defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203
(2010). To establish deficient performance, the defendant must show his attorney’s performance
fell below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219-20, 808
N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). “ ‘Effective assistance of counsel
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refers to competent, not perfect representation.’ ” Evans, 209 Ill. 2d at 220 (quoting People v.
Stewart, 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240 (1984)). Mistakes in trial strategy or
tactics do not necessarily render counsel’s representation defective. See People v. Benford, 349
Ill. App. 3d 721, 729-30, 812 N.E.2d 714, 721-22 (2004) (finding defense counsel’s decision not
to file a motion to suppress was a trial tactic and did not constitute ineffective assistance of
counsel).
¶ 24 To establish the second prong of Strickland, “[a] defendant establishes prejudice
by showing that, but for counsel’s unprofessional errors, there is a reasonable probability that the
result of the proceeding would have been different.” People v. Houston, 229 Ill. 2d 1, 4, 890
N.E.2d 424, 426 (2008). A “reasonable probability” has been defined as a probability which
would be sufficient to undermine confidence in the outcome of the trial. Houston, 229 Ill. 2d at
4. “A defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one of
the prongs precludes a finding of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25
N.E.3d 601.
¶ 25 1. Admission of Defendant’s Statements
¶ 26 Defendant argues he received ineffective assistance of counsel because his
counsel did not know about a videotape or police report that memorialized defendant’s
admission he grabbed a gun, which restricted the effectiveness of his defense. We disagree.
¶ 27 While defense counsel stated in the posttrial hearing he did not receive the video
of defendant’s admission, there is no evidence his client did not inform him of the videotaped
statement he gave, acknowledging possession and removal of the gun from the glove box. Nor is
there any indication he did not receive a police report, which would have contained the same
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information. We note during a recess in trial, before admission of the tape, the State brought
defense counsel’s attention to the video and may have alerted him to the content of the video,
although it is not clear whether he was unaware of its contents. However, if the video was not
introduced, the arresting officer, who heard the statement, could have testified and did testify to
the same. Additionally, witnesses testified to seeing a gun waved in the car, and the officer
testified to finding a loaded handgun in the glove compartment. The testimony presented the
same evidence as the video, albeit from a different source. Defendant had to prove “but for
counsel’s unprofessional errors, there is a reasonable probability that the result of the proceeding
would have been different.” Houston, 229 Ill. 2d at 4. Counsel’s failure to observe the videotape
prior to trial, given the other evidence presented, simply does not meet that burden.
¶ 28 Defendant fails to point to any aspect of his defense which was somehow
hindered or impacted by counsel’s failure to observe his videotaped admission of possession of
the firearm. Defendant did not testify, which would have been a tactical decision made with his
input. In addition, defendant would have us believe he, at no time during preparation for trial,
discussed with counsel the fact he had given a videotaped statement to the police wherein he
acknowledged possession of the handgun. This is not the sort of evidence a defendant would be
likely to forget to mention to his trial counsel.
¶ 29 It is far more reasonable and likely to conclude the decision by defendant to forgo
testifying in his own defense was due to his knowledge of the existence of the taped admission,
which could have been used by the State to impeach his credibility should he have sought to
testify contrary to his admission.
¶ 30 Defendant’s assertion here is similar to the situation found in People v.
Rosenberg, 213 Ill. 2d 69, 820 N.E.2d 440 (2004). There, the defendant complained that,
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although he could have testified at a suppression hearing regarding his legitimate expectation of
privacy in boxes containing drugs, doing so would have precluded him from denying ownership
of the boxes at trial. This is because the suppression hearing testimony, although normally
inadmissible at trial, could have been used to impeach him. Our supreme court noted, “ ‘Every
criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that
privilege cannot be construed to include the right to commit perjury.’ ” Rosenberg, 213 Ill. 2d at
80 (quoting Harris v. New York, 401 U.S. 222, 225 (1971)).
¶ 31 Here, defendant appears to argue his attorney’s failure to view the videotaped
statement, in which the defendant was a participant, somehow affected his ability to present a
defense contrary to the statements previously recorded. Instead, defendant’s counsel successfully
attacked the ability of the witnesses to actually see what defendant was doing in his own vehicle,
thereby preventing the State from using the statements to impeach his client if he attempted to
testify otherwise and winning a dismissal of count II in the process.
¶ 32 This is not an ineffective defense; it was more likely the only defense available to
him short of perjury should he have attempted to testify otherwise.
¶ 33 Defendant’s counsel first raised the issue of the video, described to the trial court
its contents and noted his objection was one of completeness, not surprise. Counsel wanted the
other digital video discs played as well in order to establish the basis for his client’s presence on
the video intended to be played by the State. Whether he viewed the video before trial is not the
issue. He clearly knew about it, had been provided a police report mentioning it, and was likely
told about it by his own client.
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¶ 34 2. Admission of the Certified Report on Defendant’s Gun License Status
¶ 35 Defendant argues he received ineffective assistance of counsel due to counsel’s
failure to object to the admission of a certified report, which stated defendant had not applied for
a concealed carry license, citing People v. Diggins, 2016 IL App (1st) 142088, 55 N.E.3d 227,
because it violated defendant’s right to confrontation. We disagree.
¶ 36 We first analyze whether the right to confrontation under the sixth amendment of
the United States Constitution was violated. The confrontation clause guarantees, “[i]n all
criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses
against him.” U.S. Const., amend. VI. “Admission of testimonial hearsay is error unless the
declarant is unavailable and the defendant has had a prior opportunity for cross-examination.”
People v. Leach, 2012 IL 111534, ¶ 140, 980 N.E.2d 570.
¶ 37 In Crawford v. Washington, 541 U.S. 36, 68 (2004), the Supreme Court held the
sixth amendment of the United States Constitution requires unavailability and prior opportunity
to cross-examine where testimonial hearsay is at issue. Violations of the right to confront a
witness are subject to harmless-error analysis. People v. Patterson, 217 Ill. 2d 407, 428, 841
N.E.2d 889, 901 (2005).
¶ 38 In the case before this court, the State sought to admit the certified report into
evidence through a motion in limine, citing Illinois Rules of Evidence 902(1) and (4) (eff. Jan. 1,
2011), which state the following:
“Domestic Public Documents Under Seal. A document bearing a
seal purporting to be that of the United States, or of any State,
district, Commonwealth, territory, or insular possession thereof, or
the Panama Canal Zone, or the Trust Territory of the Pacific
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Islands, or of a political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or
execution.
***
*** Certified Copies of Public Records. A copy of an official
record or report or entry therein, or of a document authorized by
law to be recorded or filed and actually recorded or filed in a
public office, including data compilations in any form, certified as
correct by the custodian or other person authorized to make the
certification, by certificate complying with paragraph (1), (2), or
(3) of this rule or complying with any statute or rule prescribed by
the Supreme Court.”
However, merely satisfying a hearsay exception is not enough for admission. See Crawford, 541
U.S. at 60-62 (holding the rule of satisfying a hearsay exception for admission set forth in Ohio
v. Roberts, 448 U.S. 56, 66 (1980), is overturned in regards to testimonial hearsay). As stated,
admission requires satisfying the hearsay exception, as well as witness unavailability and a prior
opportunity for cross-examination. Crawford, 541 U.S. at 68.
¶ 39 While defendant cites Diggins, we find People v. Cox, 2017 IL App (1st) 151536,
89 N.E.3d 898, is more on point. The court in Cox distinguished Diggins from the facts before it.
In Diggins, 2016 IL App (1st) 142088, ¶ 7, the defense counsel objected to the admission of a
certified letter into evidence. However, in Cox, the defense counsel did not object to the
admission of certification from a state employee, which stated the defendant did not have a FOID
card. Cox, 2017 IL App (1st) 151536, ¶ 83. Since the defense counsel did not object, he waived
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the opportunity for prior cross-examination by the affirmative statement that he had no objection,
“even though it was clear that meant there would be no cross-examination prior to its
admission.” Cox, 2017 IL App (1st) 151536, ¶ 83.
¶ 40 Here, at the pretrial hearing, defense counsel did not object to the admission of the
certified report, only reserving an objection for relevance, and the trial court admitted the
document. While not argued by the State, we will, as the court in Cox did, engage in an invited-
error doctrine analysis. Cox, 2017 IL App (1st) 151536, ¶¶ 71-76.
¶ 41 “Simply stated, a party cannot complain of error which that party induced the
court to make or to which that party consented.” In re Detention of Swope, 213 Ill. 2d 210, 217,
821 N.E.2d 283, 287 (2004). “Moreover, when a defendant procures, invites, or acquiesces in the
admission of evidence, even though the evidence is improper, [he] cannot contest the admission
on appeal.” People v. Bush, 214 Ill. 2d 318, 332, 827 N.E.2d 455, 463 (2005). “The rationale
behind this well-established rule is that it would be manifestly unfair to allow a party a second
trial upon the basis of error which that party injected into the proceedings.” Swope, 213 Ill. 2d at
217.
¶ 42 Defendant had multiple opportunities to object to the admission of the certified
report. The first opportunity arose at the pretrial hearing, where defense counsel said he had no
objection to the admission. Again, at trial, defense counsel allowed the admission of the exhibit
without objection. If counsel had objected, the State could have cured the error at trial by calling
the official who created the document as a witness. See Bush, 214 Ill. 2d at 333. However,
defense counsel affirmatively waived his objection to the admission of the document on sixth
amendment confrontation clause grounds. See Cox, 2017 IL App (1st) 151536, ¶ 83.
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¶ 43 Defendant contends trial counsel was ineffective for failing to object at the
pretrial hearing or trial. Prior to the admission of the certified report at trial, the arresting officer
testified defendant did not have a concealed carry license or apply for one but he had a FOID
card. After these statements, the certified document was entered without objection as a self-
authenticating document. Accordingly, the information was presented to the jury even without
the document. Additionally, there is nothing which could have prevented the State from calling
an authentication or foundation witness absent defendant’s acquiescence in the use of the
document. Barring some showing by defendant that such a witness was otherwise unavailable to
the State, the defendant fails to show how he was prejudiced. The burdens of production and
persuasion are on defendant, and courts do not presume the existence of either element. People v.
Ganus, 148 Ill. 2d 466, 477-78, 594 N.E.2d 211, 216-17 (1992) (Miller, C.J., specially
concurring). Therefore, defendant cannot meet the prejudice prong, and his argument of
ineffective assistance of counsel fails.
¶ 44 Defendant also contends the testimony by the arresting officer is hearsay.
Defendant notes the officer testified to checking and learning defendant did not have a concealed
carry license. Defendant claims there is no evidence indicating the officer had firsthand
knowledge defendant did not have a license. However, even if the statements were objectionable
hearsay, any error caused was invited by defense counsel’s decision to allow admission of the
certified report. It may have been part of defense counsel’s trial strategy not to object to
something so easily proved in order to avoid appearing unreasonable to the jury—we do not
know. What we do know is, prior to trial, defendant did not object to the admission of the
certified report, which contained the same information. Clearly, defense counsel’s strategy was
not to contest the admission of this information. See People v. Perry, 224 Ill. 2d 312, 344-45,
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864 N.E.2d 196, 216 (2007). Assuming arguendo counsel’s performance was deficient by failing
to object to the introduction of the officer’s testimony, there was no prejudice because the
certified document was admitted without objection. As stated earlier, nothing in the record
indicates the certifying custodian was unavailable for trial. As such, defendant fails on the
ineffective assistance of counsel claims.
¶ 45 C. Assessments
¶ 46 Defendant argues this court should vacate four fines improperly imposed by the
circuit clerk, namely a $10 arrestee’s medical assessment, a $5 drug court program assessment, a
$10 state police services assessment, and a $15 state police operations assessment.
¶ 47 This court has previously addressed the impropriety of the circuit clerk imposing
judicial fines. See People v. Larue, 2014 IL App (4th) 120595, ¶¶ 55-73, 10 N.E.3d 959.
“Although circuit clerks can have statutory authority to impose a fee, they lack authority to
impose a fine, because the imposition of a fine is exclusively a judicial act.” (Emphases omitted.)
People v. Smith, 2014 IL App (4th) 121118, ¶ 18, 18 N.E.3d 912. Thus, “any fines imposed by
the circuit clerk are void from their inception.” Larue, 2014 IL App (4th) 120595, ¶ 56. The
propriety of the imposition of fines and fees presents a question of law, which we review
de novo. People v. Guja, 2016 IL App (1st) 140046, ¶ 69, 51 N.E.3d 970.
¶ 48 The State concedes the aforementioned clerk-imposed fines should be vacated,
citing Larue, 2014 IL App (4th) 120595, ¶ 57; People v. Bell, 2012 IL App (5th) 100276, ¶ 42,
968 N.E.2d 1262; People v. Millsap, 2012 IL App (4th) 110668, ¶ 31, 979 N.E.2d 1030; and
People v. Sulton, 395 Ill. App. 3d 186, 193, 916 N.E.2d 642, 648 (2009). Following our
extensive precedent on the matter, we agree with the parties that the aforementioned charges
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assessed by the circuit clerk are fines and should be vacated. See Larue, 2014 IL App (4th)
120595, ¶ 57 (finding arrestee’s medical assessment is a fine); Millsap, 2012 IL App (4th)
110668, ¶ 31 (stating state police operations assessment is a fine); People v. Warren, 2016 IL
App (4th) 120721-B, ¶ 134, 55 N.E.3d 117 (stating the state police services assessments are
fines); Sulton, 395 Ill. App. 3d at 193 (finding drug court assessment is a fine when it does not
relate to the defendant’s prosecution).
¶ 49 Defendant also argues this court should vacate the Violent Crime Victims
Assistance (VCVA) assessment (725 ILCS 240/10 (West 2014)) because it is a fine imposed by
the circuit clerk. As part of the sentence, the trial judge filed a written order concerning fines and
stated defendant must pay a VCVA assessment. The judge did not attach a monetary amount to
the fine. The circuit clerk later assessed a $100 assessment. Defendant contends this is a clerk-
imposed fine, quoting People v. Smith, 2014 IL App (4th) 121118, ¶ 63, 18 N.E.3d 912
(“[a]bsent a court order imposing a specific fine, it is well established the clerk of a court, as a
nonjudicial member of the court, has no power to levy fines”). We disagree.
¶ 50 In the case before this court, the trial court imposed the VCVA assessment. The
statute requires a $100 assessment for any felony. 725 ILCS 240/10(b)(1) (West 2014). Thus, the
clerk was merely entering in the appropriate amount from the statute, not imposing the fine.
Accordingly, we find the fine was properly assessed by the trial court.
¶ 51 III. CONCLUSION
¶ 52 For the reasons stated, we affirm in part and vacate in part. As part of our
judgment, we award the State its $75 statutory assessment against defendant as costs of this
appeal.
¶ 53 Affirmed in part and vacated in part.
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