                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                                People v. Somers, 2013 IL 114054




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MICHAEL
Court:                     SOMERS, Appellant.



Docket No.                 114054


Filed                      February 22, 2013


Held                       Where the statute calling for a hearing on the public defender’s fee within
(Note: This syllabus       90 days of final judgment was not complied with because the hearing was
constitutes no part of     inadequate, there should be a remand for a proper hearing, and the
the opinion of the court   defendant could not successfully argue that it was too late for any hearing
but has been prepared      at all and that the fee should be vacated—mandatory and directory issue
by the Reporter of         not presented.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the Fourth District; heard in that
Review                     court on appeal from the Circuit Court of Livingston County, the Hon.
                           Jennifer H. Bauknecht, Judge, presiding.



Judgment                   Affirmed.
Counsel on                Michael J. Pelletier, State Appellate Defender, Karen Munoz, Deputy
Appeal                    Defender, and Allen H. Andrews, Assistant Appellate Defender, of the
                          Office of the State Appellate Defender, of Springfield, for appellant.

                          Lisa Madigan, Attorney General, of Springfield, and Thomas J. Brown,
                          State’s Attorney, of Pontiac (Michael A. Scodro, Solicitor General, and
                          Michael M. Glick and Joshua M. Schneider, Assistant Attorneys General,
                          of Chicago, of counsel), for the People.


Justices                  JUSTICE THOMAS delivered the judgment of the court, with opinion.
                          Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke,
                          and Theis concurred in the judgment and opinion.



                                            OPINION

¶1        At issue is whether the appellate court properly remanded the cause for a hearing on the
      defendant’s ability to pay a public defender fee when more than 90 days had passed since the
      entry of the final order at the trial court level. On the facts before us, we hold that the cause
      was properly remanded for a new hearing.

¶2                                     BACKGROUND
¶3        The State charged defendant, Michael Somers, with five counts of burglary (720 ILCS
      5/19-1(a) (West 2008)). Defendant entered into a fully negotiated plea agreement with the
      State, whereby he would plead guilty in exchange for a sentence of two years’ probation and
      180 days in jail. The circuit court of Livingston County imposed that sentence and also
      ordered defendant to pay a $200 fee to reimburse the county for the expense of appointed
      counsel.
¶4        Before ordering defendant to pay the public defender fee, the trial court asked whether
      defendant thought that he could get a job when he was released from jail, and defendant
      responded, “I’m hoping so.” The court then asked defendant if he would use that to pay his
      fines and costs, and defendant replied, “Yes, ma’am.” Finally, the court asked defendant if
      there was any physical reason why he could not work, and defendant said, “no.” After
      hearing the defendant’s answers, the court concluded that a $200 public defender fee would
      be appropriate.
¶5        The State later filed three petitions to revoke defendant’s probation, and defendant
      admitted all three violations. On July 1, 2010, the trial court sentenced defendant to six
      years’ imprisonment, and the court’s sentencing order stated that “all financial obligations
      previously imposed remain in full force and effect.” Defendant filed a motion to reconsider


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       his sentence, and the court denied the motion on September 30, 2010.
¶6         Defendant appealed, arguing that the court had not complied with section 113-3.1(a) of
       the Code of Criminal Procedure of 1963 (725 ILCS 5/113-3.1(a) (West 2010)) when it
       imposed the public defender fee. Defendant asked the court to remand the matter for a proper
       hearing. The appellate court agreed with defendant that merely asking a defendant about his
       employment status before imposing the fee does not satisfy section 113-3.1(a)’s
       requirements. Thus, the court remanded the matter for a proper hearing. No. 4-10-0869
       (summary order under Supreme Court Rule 23). Defendant then filed a petition for rehearing,
       discussing this court’s recent decision in People v. Gutierrez, 2012 IL 111590, and arguing
       that the cause should not have been remanded for a new hearing because more than 90 days
       had passed since the trial court’s final judgment. The appellate court denied the petition for
       rehearing.
¶7         We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
       2010).

¶8                                             ANALYSIS
¶9         Defendant raises a single issue for our review. Defendant contends that when more than
       90 days have elapsed since the entry of the trial court’s final judgment, the appellate court
       is without authority to remand for a hearing on a defendant’s ability to pay a public defender
       fee. According to defendant, the 90-day time limit provided by section 113-3.1(a) is
       mandatory rather than directory.
¶ 10       Normally, this argument would be considered forfeited because a remand to the trial
       court was the specific relief defendant requested in the appellate court, and he raised the
       timing argument for the first time in his petition for rehearing. However, the State explains
       that it is forgoing its right to argue forfeiture because this is a recurring issue and the public
       interest favors this court reaching the merits.
¶ 11       Section 113-3.1(a) of the Code of Criminal Procedure provides as follows:
                 “Whenever under either Section 113-3 of this Code or Rule 607 of the Illinois
                 Supreme Court the court appoints counsel to represent a defendant, the court may
                 order the defendant to pay to the Clerk of the Circuit Court a reasonable sum to
                 reimburse either the county or the State for such representation. In a hearing to
                 determine the amount of the payment, the court shall consider the affidavit prepared
                 by the defendant under Section 113-3 of this Code and any other information
                 pertaining to the defendant’s financial circumstances which may be submitted by the
                 parties. Such hearing shall be conducted on the court’s own motion or on motion of
                 the State’s Attorney at any time after the appointment of counsel but no later than 90
                 days after the entry of a final order disposing of the case at the trial level.” 725 ILCS
                 5/113-3.1(a) (West 2010).
¶ 12       Defendant argues that, because the appellate court filed its decision more than 90 days
       after the trial court’s final judgment, the cause could not be remanded for a hearing on
       defendant’s ability to pay the fee. Defendant contends that, pursuant to the rules set forth in
       People v. Robinson, 217 Ill. 2d 43 (2005), the 90-day time limit in section 113-3.1(a) is

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       mandatory rather than directory. Thus, according to defendant, once that time limit has
       passed, no hearing may be held and the fee must be vacated.
¶ 13       The State contends, however, that, in this particular case, the timing issue is a red herring.
       According to the State, the problem in this case is not that no hearing was held within the
       statutory time limit, but that the hearing that the court did hold was insufficient to satisfy
       section 113-3.1(a)’s requirements. The State concedes that the statute requires more than that
       the trial court simply ask the defendant a few questions about his employment status.
       However, because the trial court complied with the statute’s time limit, the State contends
       that we should simply remand the cause for a proper hearing and that we do not need to reach
       the issue of whether that time limit is mandatory or directory. We agree with the State.
¶ 14       First, it is clear, as the State concedes, that the trial court’s few questions to defendant
       about his employment status were insufficient to satisfy the statute. See People v. Roberson,
       335 Ill. App. 3d 798, 804 (2002) (trial court’s two questions about defendant’s employment
       status insufficient to satisfy section 113-3.1(a)). Both this court and the appellate court have
       been very clear about what a trial court must do to satisfy section 113-3.1(a). To comply with
       the statute, the court may not simply impose the fee in a perfunctory manner. Id. Rather, the
       court must give the defendant notice that it is considering imposing the fee, and the
       defendant must be given the opportunity to present evidence regarding his or her ability to
       pay and any other relevant circumstances. Id. at 803-04. The hearing must focus on the costs
       of representation, the defendant’s financial circumstances, and the foreseeable ability of the
       defendant to pay. People v. Love, 177 Ill. 2d 550, 563 (1997). The trial court must consider,
       among other evidence, the defendant’s financial affidavit. 725 ILCS 5/113-3.1(a) (West
       2010); People v. Hanna, 296 Ill. App. 3d 116, 124 (1998).
¶ 15       Clearly, then, the trial court did not fully comply with the statute, and defendant is
       entitled to a new hearing. Just as clearly, though, the trial court did have some sort of a
       hearing within the statutory time period. The trial court inquired of defendant whether he
       thought he could get a job when he was released from jail, whether he planned on using his
       future income to pay his fines and costs, and whether there was any physical reason why he
       could not work. Only after hearing defendant’s answers to these questions did the court
       impose the fee. Thus, we agree with the State’s contention that the problem here is not that
       the trial court did not hold a hearing within 90 days, but that the hearing that the court did
       hold was insufficient to comply with the statute.
¶ 16       At oral argument both in this case and in Gutierrez, Justice Garman asked the defendant
       whether a remand would be permissible in a case in which the trial court did hold a hearing
       within 90 days but the hearing was defective in some way. In Gutierrez, the appellate
       defender responded:
                    “If the statute was followed and there was a hearing within the 90 days and then
                it went up on appeal, I believe that, if there was an argument that the hearing was
                improper, you could remand it for a new hearing because in that instance the statute
                has been complied with. There was a hearing. There was an order. But here we don’t
                have that.”
       By contrast, when Justice Garman asked the same question in this case, the appellate


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       defender responded:
                     “My position is that any hearing after 90 days is prohibited. It cannot be
                remanded. Realistically, a remand would not occur within the 90-day limit. If
                somehow that happened, it could be remanded. But it cannot be remanded after the
                90-day limit. The statute is unambiguous. This exception that the State is talking
                about where you should be able to remand it, it doesn’t exist. It’s not in the statute.
                It states plainly that it has to be held within 90 days. When a statute is clear and
                unambiguous, you don’t read implicit exceptions into it.”
¶ 17       We believe that the appellate defender’s answer was correct in Gutierrez and incorrect
       in this case. Again, here, the trial court’s error was not in failing to hold a hearing within 90
       days. Rather, the problem is that the hearing that the court did hold within 90 days was
       insufficient to comply with the statute. We note that this is the original argument that
       defendant himself raised in the appellate court, arguing only that the case should be
       remanded for a hearing that complies with the statute. Defendant did not bring up the timing
       issue until he filed his petition for rehearing. We see no reason why the trial court’s error
       should be uncorrectable on appeal.
¶ 18       In sum, because the trial court complied with the statutory time period, there is simply
       no impediment to remanding the cause for a proper hearing. The issue of whether the
       statute’s 90-day time limit is mandatory or directory is not presented by the facts of this case.
       As we did in Gutierrez, 2012 IL 111590, ¶¶ 25, 26, we again express our disappointment that
       defendants continue to be denied proper hearings on public defender fees, we remind the trial
       courts of their obligation to comply with the statute, and we trust that we will not have to
       speak on this issue again.

¶ 19                                      CONCLUSION
¶ 20       The trial court’s three questions to defendant about his employment status were
       insufficient to satisfy section 113-3.1(a)’s requirements. Defendant is entitled to a proper
       hearing before a public defender fee may be imposed. The appellate court properly remanded
       the cause for a new hearing, and we affirm the appellate court’s judgment.

¶ 21       Affirmed.




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