People v. Shumack

NOTICE 2023 IL App (4th) 221015-UThis Order was filed under
FILED
Supreme Court Rule 23 and is NO. 4-22-1015 September 13, 2023
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Lee County
BRIAN T. SHUMACK, ) No. 05CF238
Defendant-Appellant. )
) Honorable
) Jacquelyn D. Ackert,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Justices Turner and Cavanagh concurred in the judgment.
ORDER
¶1 Held: The appellate court reversed the trial court’s order denying defendant’s motion to
correct an error in the application of per diem credit against fines and remanded to
the trial court for application of the credit.
¶2 In September 2022, defendant, Brian T. Shumack, filed a motion seeking per diem
credit for time spent in presentence custody against his “Youth Diversion” fee under section 110-
14(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-14(a) (West 2020)).
The trial court denied defendant’s motion. Defendant appeals, arguing the court erred in finding
none of the assessments imposed were fines eligible for per diem credit. For the reasons that
follow, we reverse the court’s judgment and remand for entry of the credit against defendant’s
“Youth Diversion” fee.
¶3 I. BACKGROUND
¶4 Following a January 2006 bench trial, defendant was convicted of burglary (720
ILCS 5/19-1(a) (West 2004)) and criminal damage to property (720 ILCS 5/21-1(1)(a) (West
2004)), sentenced to 14 years’ imprisonment, and ordered to pay $1280 restitution. According to
the sentencing order, defendant spent 182 days in presentence custody. On direct appeal,
defendant challenged his prison sentence and the restitution amount. The appellate court
affirmed. People v. Shumack, No. 2-06-0067 (2007) (unpublished order under Supreme Court
Rule 23).
¶5 On September 26, 2022, defendant filed a pro se “Motion for $5-Per-Day Credit
Against Fines Pursuant to Section 725 ILCS 5/110-14.” In his motion, defendant requested
correction of an error in the application of per diem credit against his fines. He explained that he
wrote to the circuit court clerk asking “if there were any outstanding fines, fees, [or] court dates,”
and the clerk responded with an itemized list of fines and fees totaling $565.50. Defendant
attached the list he received from the circuit court clerk to his motion. The list included a $5 fee
for “Youth Diversion.”
¶6 On November 3, 2022, the trial court denied defendant’s motion, determining that
the challenged amounts were not fines and, therefore, not subject to the $5-per-day credit against
fines for his time spent in presentence custody under section 110-14 of the Code (725 ILCS
5/110-14 (West 2006)). Defendant timely filed a notice of appeal on November 18, 2022.
¶7 This appeal followed.
¶8 II. ANALYSIS
¶9 A. Jurisdiction
¶ 10 On appeal, defendant acknowledges his pro se motion did not include a citation to
Illinois Supreme Court Rule 472(a)(2) (eff. May 17, 2019), providing that trial courts retain
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jurisdiction in criminal cases to correct certain sentencing errors at any time following judgment,
including “[e]rrors in the application of per diem credit against fines.” Nonetheless, defendant
asserts this court should treat his motion as one filed under Rule 472, because the relief he
requests is expressly authorized by the rule and the substance of the motion should control over
its form. Defendant contends the trial court had jurisdiction to consider his motion under Rule
472 and this court has jurisdiction to consider his appeal from the final judgment denying his
motion. The State does not challenge defendant’s request for this court to treat his motion as a
Rule 472 motion for per diem credit against his fines.
¶ 11 We agree that defendant’s motion should be treated as a motion filed under Rule
472. The rule provides for correction of errors in the application of per diem credit on the motion
of a party at any time following judgment. Ill. S. Ct. R. 472(a)(2) (eff. May 17, 2019). Defendant
requested that relief in his motion. Thus, although defendant did not expressly cite the rule in his
motion, he clearly asked for the relief provided by the rule.
¶ 12 Rule 472 further states that a trial court’s ruling on a motion “constitutes a final
judgment on a justiciable matter and is subject to appeal in accordance with Supreme Court Rule
303.” Ill. S. Ct. R. 472(b) (eff. May 17, 2019). Rule 303 provides, in pertinent part, that a notice
of appeal must be filed within 30 days after entry of the final judgment. Ill. S. Ct. R. 303(a)(1)
(eff. July 1, 2017). Defendant filed his notice of appeal within 30 days following the trial court’s
denial of his Rule 472 motion. Accordingly, this court has jurisdiction to consider his appeal
from the denial of his motion for per diem credit against his fines.
¶ 13 B. Credit Against “Youth Diversion” Fee
¶ 14 Initially, we note that while defendant asked for credit against several fees and
assessments in his motion, he only claims on appeal that he is entitled to per diem credit against
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the $5 “Youth Diversion” fee. Defendant contends the “Youth Diversion” fee has been held to be
a fine subject to per diem credit and the trial court erred in denying his motion for credit against
the fine. Accordingly, defendant requests reversal of the court’s denial of his motion and remand
for entry of an order awarding the $5 credit against his “Youth Diversion” fee.
¶ 15 The State responds that the legislature enacted the Criminal and Traffic
Assessment Act (Act) (Pub. Act 100-987 (eff. July 1, 2019) (adding 705 ILCS 135/1-5)) defining
a “fine” as both “pecuniary punishment for a conviction” and “ordered by a court of law.” The
State argues defendant’s motion for credit against his fines, filed on September 26, 2022, should
be reviewed in accordance with the Act’s definition of a fine. The State maintains that, under the
Act, the “Youth Diversion” fee is more in the nature of a scheduled cost assessment and the
record does not show it was ordered by a court of law as a pecuniary punishment. The State,
therefore, concludes that the trial court correctly denied defendant’s motion because the “Youth
Diversion” fee is not a fine subject to per diem credit under section 110-14 of the Code (725
ILCS 5/110-14 (West 2006)).
¶ 16 Defendant replies that applying the Act retroactively to redefine the “Youth
Diversion” fee would violate ex post facto principles because it would be disadvantageous to him
and impose an additional burden. Defendant contends the applicable law requires reversal of the
trial court’s decision and remand for entry of an order awarding the $5 credit.
¶ 17 We agree with defendant. The applicable version of section 110-14(a) provides
that “[a]ny person incarcerated on a bailable offense who does not supply bail and against whom
a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so
incarcerated upon application of the defendant.” 725 ILCS 5/110-14(a) (West 2006). Thus, a
defendant is entitled to a $5-per-day credit for time served in presentence custody against a fine.
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Our supreme court has held the “Youth Diversion” fee is a fine. People v. Graves, 235 Ill. 2d
244, 255 (2009) (stating the $5 youth diversion/peer court fee, although labeled as a fee, is “in
fact [a] fine[ ], which [is] punitive in nature”).
¶ 18 The State does not explain why the Act, effective July 1, 2019, should be applied
retroactively to this fine imposed on defendant for an offense committed in 2005, or cite any case
law in support of its contention that the “Youth Diversion” fee should be considered an
assessment. The State simply asserts, without any support or analysis, that the Act’s definition of
a fine should control because defendant’s motion was filed in 2022. Illinois Supreme Court Rule
341(h)(7) (eff. Oct. 1, 2020) requires an appellant’s brief to include “[a]rgument, which shall
contain the contentions of the appellant and the reasons therefor, with citation of the authorities
and the pages of the record relied on.” Rule 341(h)(7) also applies to appellee briefs. Ill. S. Ct. R.
341(i) (eff. Oct. 1, 2020). Ordinarily, the State’s failure to cite authority or articulate an argument
in support of its claim that the Act applies retroactively here would result in forfeiture of the
argument on appeal. See People v. Pope, 2020 IL App (4th) 180773, ¶ 75.
¶ 19 Notwithstanding any forfeiture, it is far from clear that application of the Act
would support a decision that the “Youth Diversion” fee is now an assessment. In any case, as
defendant argues, applying the Act retroactively to reach that result would present ex post facto
concerns. The ex post facto clauses of the United States Constitution prohibit retroactive
application of a law inflicting greater punishment than the law in effect when an offense was
committed. People v. Cornelius, 213 Ill. 2d 178, 207 (2004). “A law is considered ex post facto if
it is both retroactive and disadvantageous to the defendant.” Cornelius, 213 Ill. 2d at 207. A
defendant is disadvantaged by a law if it increases the punishment for a previously committed
offense. Cornelius, 213 Ill. 2d at 207. A fine is a punishment imposed as part of a criminal
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sentence and is subject to the prohibition against ex post facto laws. People v. Prince, 371 Ill.
App. 3d 878, 880 (2007).
¶ 20 Here, defendant would be disadvantaged by retroactive application of the Act to
hold the “Youth Diversion” fee is now an assessment because he would no longer be entitled to
credit against the fee for time spent in presentence custody. See Prince, 371 Ill. App. 3d at 881
(stating denial of the credit provided by section 110-14 against a defendant’s fines, based on
retroactive application of an amendment to the statute, would increase the punishment for a
previously committed offense). Accordingly, even if application of the Act’s definition of a
“fine” would result in redefining the “Youth Diversion” fee, that result would violate
ex post facto principles. In sum, the Act cannot be applied retroactively to redefine the “Youth
Diversion” fee imposed on defendant for an offense committed in 2005.
¶ 21 In accordance with our supreme court’s decision in Graves, we conclude that the
“Youth Diversion” fee imposed on defendant is, in fact, a fine. Graves, 235 Ill. 2d at 255.
Defendant is entitled to a $5-per-day credit for time served in presentence custody against his
fines. 725 ILCS 5/110-14(a) (West 2006). Accordingly, we reverse the trial court’s denial of
defendant’s motion seeking that credit and remand to the court for application of the $5 credit to
his “Youth Diversion” fee.
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we reverse the trial court’s denial of defendant’s motion to
correct an error in the application of per diem credit against his fines and remand for entry of an
order awarding the credit against his “Youth Diversion” fee.
¶ 24 Reversed and remanded.
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