                           NO. 4-08-0828           Filed 10/15/09

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,       )   Appeal from
          Plaintiff-Appellee,              )   Circuit Court of
          v.                               )   McLean County
ALPHA O. SULTON,                           )   No. 07CF162
          Defendant-Appellant.             )
                                           )   Honorable
                                           )   James E. Souk,
                                           )   Judge Presiding.


           JUSTICE MYERSCOUGH delivered the opinion of the court:

           In September 2007, defendant, Alpha O. Sulton, entered

a partially negotiated guilty plea as to one count of aggravated

driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F)

(West 2006)).   The trial court later sentenced defendant to seven

years' imprisonment and assessed numerous fines, fees, and costs,

including a $10 drug-court assessment pursuant to section 5-

1101(d-5) of the Counties Code (55 ILCS 5/5-1101(d-5) (West

2006)).

           In November 2007, defendant filed a motion to withdraw

guilty plea and reconsider sentence, which the trial court

denied.   Defendant appealed, and we remanded his case to the

trial court for defense counsel's failure to comply with Supreme

Court Rule 604(d) (210 Ill. 2d R. 604(d)).     People v. Sulton, No.

4-08-0073 (May 12, 2008) (unpublished summary order under Supreme
Court Rule 23(c)(2)).

            On remand, defendant filed an amended motion to with-

draw guilty plea and reconsider sentence, which the trial court

denied.    Defendant appeals, arguing he is entitled to credit

against the $10 drug-court assessment imposed by the court.      We

agree, affirm as modified, and remand with directions.

                            I. BACKGROUND

            On February 3, 2007, while under the influence of

cannabis, defendant drove his car into a utility pole, killing

Jose Ezpinoza, the passenger in the vehicle.      The State charged

defendant with one count of aggravated driving under the influ-

ence, a Class 2 felony (625 ILCS 5/11-501(d)(1)(F) (West 2006)).

In exchange for a 10-year sentence cap, defendant pleaded guilty

to the charge.    The trial court later sentenced defendant as

stated and awarded him (1) 273 days' sentencing credit and (2)

$1,365 credit toward his fines for time spent in presentence

custody.    However, the notice filed by the McLean County circuit

clerk reveals defendant's custody credit was not applied toward

his $10 drug-court assessment.

            In November 2007, defendant filed a motion to withdraw

plea and reconsider sentence, alleging (1) his plea was involun-

tary and (2) his sentence was excessive.      The trial court denied

the motion, and defendant appealed.      On appeal, this court

remanded because defense counsel failed to file a certificate


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indicating counsel reviewed the transcript of the guilty-plea

hearing as required by Supreme Court Rule 604(d).     Sulton, No. 4-

08-0073.

            On remand, defendant filed an amended motion to with-

draw plea and reconsider sentence, alleging (1) he felt pressured

into entering his guilty plea and did not understand the conse-

quences of pleading guilty and (2) his sentence was excessive.

The trial court denied the motion.

            This appeal followed.

                            II. ANALYSIS

            On appeal, defendant contends he is entitled to credit

against his $10 drug-court assessment for the time he spent in

pretrial custody because the assessment constituted a fine and

not a fee.    Specifically, defendant alleges that because he did

not face prosecution in drug court, the assessment was not

compensatory in nature and cannot be labeled as a fee.    In

response, the State argues defendant does not deserve credit

toward his drug-court assessment because the assessment was a fee

in that it was (1) nonpunitive and (2) rationally related to

defendant's conviction.    We agree with defendant.

            The issue of monetary credit against a defendant's fine

cannot be waived and may be raised for the first time on appeal.

People v. Woodard, 175 Ill. 2d 435, 457, 677 N.E.2d 935, 945-46

(1997).    Whether a defendant received proper credit against his


                                - 3 -
fine is a question of law that we review de novo.      People v.

Andrews, 365 Ill. App. 3d 696, 698, 850 N.E.2d 888, 890 (2006).

            Section 110-14(a) of the Code of Criminal Procedure of

1963 (Criminal Code) states 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 defen-

dant."    725 ILCS 5/110-14(a) (West 2006).    However, monetary

credit under section 110-14(a) offsets only fines, not fees.

People v. Jones, 223 Ill. 2d 569, 580, 861 N.E.2d 967, 974

(2006).    Thus, our analysis turns to whether the $10 drug-court

assessment qualifies as a fee or a fine.      This issue appears

relatively straightforward.    However, the cases take many oppos-

ing approaches.    In People v. Williams, 142 Ill. App. 3d 266,

274-75, 491 N.E.2d 941, 946 (1986), overruled on other grounds by

People v. Ferguson, 132 Ill. 2d 86, 99, 547 N.E.2d 429, 434

(1989), the appellate court found the assessment to be a fee

based upon the statutory language that referred to the assessment

as other than a fine.

                  "A reading of the statutory language in

            section 5-9-1(c) of the Unified Code of Cor-

            rections (Ill. Rev. Stat. 1983, ch. 38, par.

            1005-9-1(c)) in conjunction with section 9.1

            of 'An act to establish the Illinois Local


                                 - 4 -
Government Law Enforcement Officers Training

Board ***' (Ill. Rev. Stat. 1983, ch. 85,

par. 509.1), setting forth the means of dis-

tribution of the funds, reveals that the dis-

puted amount is referred to as other than a

fine.    For example, every fine shall include

an amount payable to the Fund (Ill. Rev.

Stat. 1983, ch. 38, par. 1005-9-1(c)); such

amounts payable shall be collected in addi-

tion to the fines and costs (Ill. Rev. Stat.

1983, ch. 38, par. 1005-9-1(c)); and, in ad-

dition to every fine imposed an additional

assessment payable to the Fund shall be im-

posed.    Ill. Rev. Stat. 1983, ch. 38, par.

509.1.

        The above statutory language evinces the

legislature's intent to distinguish the

amount payable to the Fund from any fines

imposed.    Furthermore, the purpose of provid-

ing financial assistance to the training of

law enforcement personnel (Ill. Rev. Stat.

1983, ch. 85, par. 509) would be thwarted by

subjecting the amounts payable to the Fund to

the credit provisions of section 110-14 of


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          the Code of Criminal Procedure of 1963 (Ill.

          Rev. Stat. 1983, ch. 38, par. 110-14).    We

          conclude that defendant is not entitled to

          credit against the amount payable to the

          Fund, imposed under section 5-9-1(c) of the

          Unified Code of Corrections (Ill. Rev. Stat.

          1983, ch. 38, par. 1005-9-1(c)) for time

          served prior to conviction."   Williams, 142

          Ill. App. 3d at 274-75, 491 N.E.2d at 946.

See also People v. Gathing, 334 Ill. App. 3d 617, 778 N.E.2d 215

(2002).

          However, in People v. Brown, 242 Ill. App. 3d 465, 610

N.E.2d 776 (1993), the appellate court found the assessment to be

a fine because the statutory language did not include the prohi-

bition against the offset for time served.

               "We begin by noting that the $500 as-

          sessment was imposed pursuant to section

          411.2 of the Illinois Controlled Substances

          Act (720 ILCS 570/411.2 (West 1992)).    Sec-

          tion 411.2 does not specifically state that

          assessments cannot be offset by the general

          $5-per-day credit against fines provided for

          in section 110-14 of the Code of Criminal

          Procedure of 1963.   (See 725 ILCS 5/110-14


                               - 6 -
          (West 1992).)   Had the legislature clearly

          intended to exclude section 411.2 from such

          credits, the legislature could have specifi-

          cally made such an exclusion.    (See, e.g.,

          725 ILCS 240/10(c) (West 1992).)    Therefore,

          we conclude that Brown's $5-per-day credit

          for pretrial incarceration which is allowed

          by section 110-14 should have been used to

          offset his $500 assessment."    (Emphasis in

          original.)   Brown, 242 Ill. App. 3d at 466,

          601 N.E.2d at 777.

          Regardless, the supreme court in an unusual twist of

logic found a fee to be a fine when interpreting a statute with

nearly identical language as in Brown and the case sub judice.

          "As defendant notes, the statute does call

          the charge a 'fee.'    This constitutes strong

          evidence as to how the charge should be char-

          acterized.   However, as previously noted, the

          label attached by the legislature is not nec-

          essarily definitive.    See Crocker, 99 Ill. 2d

          at 452 (a charge labeled a 'fee' was 'in re-

          ality a tax'); Elizalde, 344 Ill. App. 3d at

          682.   We note that the statute is ambiguous,

          in that although the statute does label the


                                 - 7 -
          charge a fee it also states that the charge

          'shall not be considered a part of the fine

          for purposes of any reduction in the fine for

          time served either before or after sentenc-

          ing.'    If the charge were truly a fee, there

          would be no need for the legislature to have

          included this language because, as the par-

          ties agree, the credit for presentence incar-

          ceration can only reduce fines, not fees.

          See 725 ILCS 5/110-14 (West 2004).    Thus to

          conclude the charge is a fee would render

          this section of the statute superfluous, a

          construction to be avoided.    Jones, 214 Ill.

          2d at 193; Bonaguro, 158 Ill. 2d at 397."

          Jones, 223 Ill. 2d at 599, 861 N.E.2d at 985.

Ordinarily, the statutory language "added to every fine" an

"additional penalty" and the specific exclusion of the statutory

credit for time served are considered to reflect creation of a

fee, not a fine.    See Williams, 142 Ill. App. 3d at 274-75, 491

N.E.2d at 946.    "Such additional penalty shall not be considered

a part of the fine for purposes of any reduction in the fine for

time served either before or after sentencing."    730 ILCS 5/5-9-

1(c) (West 2006); see Brown, 242 Ill. App. 3d 465, 610 N.E.2d

776.


                                - 8 -
          This court is, nonetheless, bound to follow People v.

Graves, No. 106541 (September 24, 2009), ___ Ill. 2d ___, ___

N.E.2d ___, and Jones, 223 Ill. 2d 569, 861 N.E.2d 967.

          This sentencing dilemma places an enormous burden on

the trial courts.   The trial courts must now address in each

criminal case whether each of the myriad of fees and fines is a

fee or a fine as to each defendant depending on the conviction,

the sentence, and the penalty.    Perhaps the legislature will see

fit to correct this confusion.

          Regardless, the supreme court has found that the nature

of an assessment determines whether the assessment constitutes a

fine or a fee.   Fines are "'pecuniary punishment[s] imposed as

part of a sentence on a person convicted of a criminal offense.'"

Jones, 223 Ill. 2d at 581, 861 N.E.2d at 975, quoting People v.

White, 333 Ill. App. 3d 777, 781, 776 N.E.2d 836, 839 (2002).

Conversely, fees do not "'punish a defendant in addition to the

sentence he received'"; rather, a fee is a collateral consequence

of the defendant's conviction that reimburses the State for an

expense related to the defendant's prosecution.    Jones, 223 Ill.

2d at 581, 861 N.E.2d at 975, quoting White, 333 Ill. App. 3d at

781, 776 N.E.2d at 839.

          At issue in the case at bar is the $10 drug-court

assessment imposed upon defendant by the trial court pursuant to

section 5-1101(d-5) of the Counties Code.   Specifically, section


                                 - 9 -
5-1101(d-5) authorizes trial courts to impose "[a] $10 fee to be

paid by the defendant on a judgment of guilty or a grant of

supervision under [s]ection 5-9-1 of the Unified Code of Correc-

tions to be placed in the county general fund and used to finance

the county mental[-]health court, the county drug court, or

both."    55 ILCS 5/5-1101(d-5) (West 2006).

            Although the language of section 5-1101(d-5) catego-

rizes the drug-court assessment as a "fee," defendant argues the

assessment actually operates as a fine.    In determining whether

an assessment is a fee or a fine, the label used by the legisla-

ture is strong evidence as to the nature of the charge.    People

v. Paige, 378 Ill. App. 3d 95, 101-02, 880 N.E.2d 675, 682

(2007).    However, "the actual attributes of the charge at issue

must [also] be examined in resolving the question as to whether

the charge is in fact a fee or a fine."    Paige, 378 Ill. App. 3d

at 102, 880 N.E.2d at 682.    In doing so, the primary inquiry is

whether the assessment "seek[s] to compensate the [S]tate for any

costs incurred as the result of prosecuting the defendant."

Jones, 223 Ill. 2d at 600, 861 N.E.2d at 986.    If the assessment

is compensatory in nature, it constitutes a fee.    Therefore, even

if the statutory language labels an assessment as a "fee," the

assessment still operates as a fine if it fails to reimburse the

State for actual costs incurred in prosecuting the defendant.

See Graves, No. 106541, slip op. at 5, ___ Ill. 2d at ___, ___


                               - 10 -
N.E.2d at ___ (holding that a $10 mental-health-court assessment

and a $5 youth diversion/peer-court assessment, though labeled in

the statute as "fees," were actually fines because they did not

seek to compensate the State "for any costs incurred as the

result of prosecuting the defendant"); Jones, 223 Ill. 2d at 599,

861 N.E.2d at 985 (holding that despite the General Assembly

labeling a $5 spinal-cord-fund charge as a "fee," the charge was

actually a fine because it failed to compensate the State for

costs incurred in prosecuting the defendant); Paige, 378 Ill.

App. 3d at 103, 880 N.E.2d at 683 (holding the mental-health

court assessment imposed under section 5-1101(d-5) of the Coun-

ties Code constituted a fine despite its statutory label as a

"fee" because the assessment went to funding mental-health court

costs for the county and did not relate specifically to the

defendant's prosecution).

          In the case at bar, defendant maintains he "was not

prosecuted in the county's drug or mental[-]health court system"

and therefore the $10 drug-court assessment did not apply to the

prosecution of his case.    The State responds that because defen-

dant was charged with aggravated DUI and two other drug-related

offenses, "the drug[-]court fee is *** rationally related to

defendant's conviction" and thus constitutes a fee.   We agree

with defendant.

          The State's "rationally related" argument is improper


                               - 11 -
in distinguishing a fee from a fine.     Though the charges against

defendant relate to drug abuse, the State's argument improperly

borrows from the test used to determine whether a fee is consti-

tutional.    See People v. Gildart, 377 Ill. App. 3d 39, 41, 879

N.E.2d 410, 413 (2007) (in deciding whether a statute imposing a

fee is constitutional, the court must examine whether the fee

"has a reasonable relationship to the public interest being

protected").    Rather, the relevant inquiry is whether the assess-

ment "is intended to reimburse the [S]tate for some cost incurred

in [the] defendant's prosecution."      Jones, 223 Ill. 2d at 600,

861 N.E.2d at 986.

            Pursuant to the Drug Court Treatment Act, drug-court

programs exist in three capacities: (1) the preadjudicatory drug-

court program, in which the prosecution consents to expediting

"the defendant's criminal case before conviction or before filing

of a criminal case and requires successful completion of the

drug[-]court program as part of the agreement"; (2) the

postadjudicatory drug-court program, in which "the defendant has

admitted guilt or has been found guilty and agrees, along with

the prosecution, to enter a drug[-]court program as part of the

defendant's sentence"; and (3) the combination drug-court pro-

gram, which includes participation in both preadjudicatory and

postadjudicatory drug-court programs.     730 ILCS 166/10 (West

2006).   Participation in any drug-court program requires approval


                               - 12 -
by the prosecutor and involves community-based treatment.    730

ILCS 166/20(a) (West 2006).   Here, the record does not reflect

the trial court considered defendant's eligibility for drug-court

programs during defendant's guilty-plea or sentencing hearings.

Moreover, rather than sentence defendant to community-based

treatment following his conviction, the trial court sentenced

defendant to seven years' imprisonment.    Thus, the $10 drug-court

assessment was not related to costs incurred by the State as a

result of defendant's prosecution.     As such, the assessment was a

fine, rather than a fee, toward which defendant should receive a

$5-per-day credit pursuant to section 110-14(a) of the Criminal

Code.

          As a final matter, we address the State's contention

"the trial court erroneously awarded defendant sentence credit to

which he was not entitled."   Specifically, the State claims that

because defendant is not entitled to credit for the day of sen-

tencing in which he was remanded to the Department of Correc-

tions, the court should have awarded defendant 272 rather than

273 days' sentence credit and $1,360 rather than $1,365 monetary

credit for the time defendant spent in presentence custody from

February 3, 2007 (the day of defendant's arrest), to November 1,

2007 (the day the court sentenced defendant).    See People v.

Leggans, 140 Ill. App. 3d 268, 270-71, 488 N.E.2d 614, 615

(1986).   Defendant concedes this issue, and we thereby order the


                              - 13 -
sentencing judgment corrected so reflecting.

                         III. CONCLUSION

          For the reasons stated, we affirm as modified and

remand this cause to the trial court for issuance of an amended

sentencing judgment to reflect application of defendant's mone-

tary credit to the $10 drug-court assessment and a reduction in

defendant's sentence credit from 273 days to 272 days and mone-

tary credit from $1,365 to $1,360.

          Affirmed as modified and cause remanded with direc-

tions.

          KNECHT and STEIGMANN, JJ., concur.




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