                                    2013 IL App (1st) 090833
                                                                           FIFTH DIVISION
                                                                        September 27, 2013




No. 1-09-0833


THE PEOPLE OF THE STATE OF ILLINOIS,                       )    Appeal from
                                                           )    the Circuit Court
              Plaintiff-Appellee,                          )    of Cook County
                                                           )
v.                                                         )    Nos. 07 CR 1772
                                                           )         07 CR 1773
JOSEPH COSTA,                                              )
                                                           )    Honorable
              Defendant-Appellant.                         )    William G. Lacy,
                                                           )    Judge Presiding.


       JUSTICE PALMER delivered the judgment of the court, with opinion.
       Presiding Justice McBride and Justice Taylor concurred in the judgment and
opinion.


                                           OPINION

¶1     Following a jury trial, defendant Joseph Costa was found guilty and sentenced

on two counts of violation of bail bond (720 ILCS 5/32-10(a) (West 2006)). Defendant

appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable

doubt, (2) the trial court incorrectly instructed the jury and (3) several of the fines and

fees assessed by the court were not authorized by statute and should be vacated. We

reverse defendant's convictions for violation of bail bond and vacate the court's

assessment of the challenged fees and fines.
No. 1-09-0833


¶2                                   BACKGROUND

¶3     In May 2006, the State charged defendant with aggravated battery of a peace

officer and violation of an order of protection obtained by his then-wife Pamela Tilton.

By separate indictment, it charged defendant with two counts of aggravated stalking of

Tilton and two additional counts of violation of an order of protection obtained by Tilton.

The court consolidated the cases.

¶4     Defendant posted $1 million bond and was released. Under the conditions of

defendant’s bond, he was required to appear in court until a final order issued in the

pending cases and could not leave the state without leave of court. If he failed to

appear, he could be tried in absentia and charged with bail jumping and he would forfeit

his bail.

¶5     On November 15, 2006, defendant failed to appear in court for a status hearing.

The court issued bond forfeiture warrants.

¶6     On December 12, 2006, United States Marshals arrested defendant in Hawaii.

He agreed to extradition to Illinois and was brought into court in Cook County on

December 22, 2006. The court entered judgment on the bond forfeiture warrants on

December 18, 2006.

¶7     The State charged defendant in two separate one-count indictments with felony

violation of bail bond under section 32-10(a) of the Criminal Code of 1961 (the Code)

(720 ILCS 5/32-10(a) (West 2006)). These indictments are numbered 07 CR 1772 and




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07 CR 1773.1

¶8     Defendant moved to dismiss the section 32-10(a) felony violation of bail bond

charges and reinstate his bond. Section 32-10(a) provides in relevant part:

       “Whoever, having been admitted to bail for appearance before any court of this

       State, incurs a forfeiture of the bail and willfully fails to surrender himself within

       30 days following the date of such forfeiture, commits, if the bail was given in

       connection with a charge of felony *** a felony of the next lower Class ***." 720

       ILCS 5/32-10(a) (West 2006).

¶9     Defendant argued that he had not committed an offense under section 32-10(a)

because he had willfully surrendered to the United States Marshals in Hawaii and

agreed to extradition to Illinois before the 30-day "tolling period" expired. The State

responded that being arrested in another state did not constitute a willful surrender as

contemplated by section 32-10(a) and, moreover, the question of whether or not the

defendant committed the offense as charged was for the trier of fact to determine. The

court denied defendant's motion to dismiss on the basis that he had failed to cite

authority supporting the proposition that being arrested within 30 days prevents

proceedings under the bail bond statute.


       1
         The State also charged defendant with two counts of harassing a witness, two
counts of communicating with a witness, one count of aggravated false personation of a
peace officer and two counts of violation of an order of protection under indictments
numbers 07 CR 1771 and 07 CR 19864. The court joined the four indictments. Only
the two felony violation of bail bond counts under indictments numbers 07 CR 1772 and
07 CR 1773 and the fees and fines assessed under indictment number 07 CR 1771 are
at issue here.

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¶ 10   Trial began on September 2, 2008. In relevant part, Detective Sherlock testified

that he was a Chicago police detective working with the United States Marshal’s fugitive

task force. He testified that he received a request from Assistant State’s Attorney Nina

Ricci to assist in locating defendant. On December 10, 2006, he learned that the

investigation had moved to Hawaii.

¶ 11   United States Deputy Marshal Glen Ferreira testified that he worked in the

United States Marshal’s office in Hawaii. He testified that, on December 12, 2006, he

went to an address in Honolulu where he confirmed defendant was staying. When

defendant eventually drove up, United States deputies identified themselves and

informed defendant that they had a warrant for his arrest. Deputy Ferreira testified that

defendant said he knew they were looking for him, cooperated with the deputies and

did not resist arrest. The deputies turned defendant over to the Honolulu police

department.

¶ 12   Defendant testified that he went to Hawaii because his attorney had given him

permission to leave Illinois. He stated he had gone to Hawaii and intended to return to

Chicago for his November 15, 2006, court date but did not return for the court date

because he was afraid that Tilton's bodyguards were “out of control.” Defendant stated

that he had understood that he had to come back to Illinois in December to avoid being

charged with violation of bail bond and that he had intended to return to Illinois before

the 30-day grace period was over.

¶ 13   The parties agreed to submit the following Illinois pattern instructions to the jury:


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             "A person commits the offense of violation of bail bond when he has been

      admitted to bail for appearance before a court in this State, and incurs a

      forfeiture of the bail, and willfully fails to surrender himself within 30 days

      following the forfeiture of the bail." Illinois Pattern Jury Instructions, Criminal, No.

      22.53 (4th ed. 2000).

             "To sustain the charge of violation of bail bond, the State must prove the

      following propositions:

             First Proposition: That the defendant has been admitted to bail for

      appearance before a court in this State [in case numbers 06CR-12793 and

      06CR-12794]; and

             Second Proposition: That the bail [in case numbers 06CR-12793 and

      06CR-12794] was forfeited; and

             Third Proposition: That the defendant wilfully failed to surrender himself

      within 30 days following the forfeiture of the bail.

             If you find from your consideration of all the evidence that each one of

      these propositions has been proved beyond a reasonable doubt, you should find

      the defendant guilty.

             If you find from your consideration of all the evidence that any one of

      these propositions has not been proved beyond a reasonable doubt, you should

      find the defendant not guilty." Illinois Pattern Jury Instructions, Criminal, No.

      22.54 (4th ed. 2000).


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¶ 14   The court denied defendant's request for a jury instruction on the meaning of the

section 32-10 phrase “willfully fail to surrender” as established by the Illinois Supreme

Court in People v. Ratliff, 65 Ill. 2d 314 (1976). It also denied defendant's request for

an instruction that the bond statute accrued 30 days after the date of bond forfeiture

and, therefore, a "willful failure to surrender" could not be shown if the defendant was

apprehended before the statutory period ended and "prior to the expiration of the 30

days, there is no crime."

¶ 15   During jury deliberations, the jury sent out a note asking;

              “If the defendant is arrested within 30 days of bail forfeiture, has he

       'willfully failed' to surrender himself for purposes of proving a charge of violation

       of bail bond?

              Is impossibility of surrendering yourself a valid defense to the charge of

       violation of bail bond[?]

              What is the spirit of the law? (i.e., If you’re arrested before 30 days are

       up, have you surrendered your right to the remaining days?)”

¶ 16   Both parties initially agreed that the proper response was to tell the jury to

continue to deliberate. Over defense counsel’s objection, citing People v. Brautigan, 79

Ill. App. 3d 595 (1979), the court then sent the jury the following note:

              “If the defendant does not appear and surrender to the court having

       jurisdiction within 30 days from the date of forfeiture or within such period satisfy

       the court that appearance and surrender by the accused is impossible and


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No. 1-09-0833


       without his fault the Court should enter judgment for the State.

              A defendant’s absence from a criminal proceeding caused by

       imprisonment in a foreign State is not 'without fault.'

              Please continue to deliberate.”

Fifteen minutes after receiving the note, the jury returned a verdict finding defendant

guilty on all charges. The court denied defendant’s posttrial motion.

¶ 17   On March 6, 2009, the court sentenced defendant to two concurrent three-year

terms for violation of bail bond. It assessed defendant a $5 court system fee, $25 court

supervision fee, $20 serious traffic violation fee, $200 domestic violence fine and $20

violation of an order of protection fine. Defendant filed a timely notice of appeal on

March 17, 2009.

¶ 18                                     ANALYSIS

¶ 19                                1. Reasonable Doubt

¶ 20   Defendant argues that his conviction for violation of bail bond pursuant to section

32-10(a) of the Code should be reversed because the State failed to prove beyond a

reasonable doubt that defendant willfully failed to surrender himself within 30 days

following the date of the forfeiture of bail bond as required for the offense. Section 32-

10(a) provides in relevant part:

       “Whoever, having been admitted to bail for appearance before any court of this

       State, incurs a forfeiture of the bail and willfully fails to surrender himself within

       30 days following the date of such forfeiture, commits, if the bail was given in


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No. 1-09-0833


       connection with a charge of felony *** a felony of the next lower Class ***." 720

       ILCS 5/32-10(a) (West 2006).

To sustain a conviction for violation of a bail bond under the statute, the State must

prove beyond a reasonable doubt that the defendant: (1) forfeited bail, (2) failed to

surrender within 30 days after the bail was forfeited, and (3) his failure to surrender was

willful. People v. Albarran, 40 Ill. App. 3d 344, 346 (1976).

¶ 21    Defendant does not contest that he forfeited his bail bond when he failed to

appear in court on November 15, 2006, or that he failed to surrender within 30 days

after the bail was forfeited. Instead, he argues that the State failed to prove that his

failure to surrender was willful. Citing People v. Ratliff, 65 Ill. 2d 314 (1976), defendant

contends that his failure to surrender could not be willful because he had been arrested

by the United States marshals and placed into custody on December 12, 2006, 3 days

prior to the expiration of the 30-day grace period. We agree that defendant's failure to

surrender could not be willful.

¶ 22    "For the purpose of this statute[,] an act is performed willfully when it is

performed knowingly." People v. Lynn, 89 Ill. App. 3d 712, 714 (1980). An innocent or

excusable failure to surrender is not punishable. Lynn, 89 Ill. App. 3d at 714. "An

inability to be in the court because a defendant is in custody elsewhere is an example

of excusable failure." Lynn, 89 Ill. App. 3d at 714 (citing Ratliff, 65 Ill. 2d at 319-20).

¶ 23   There are few cases in Illinois addressing the question of whether a defendant's

failure to surrender within the statutory 30-day surrender period can be deemed willful


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No. 1-09-0833


under section 32-10(a) where the defendant is unable to appear in court within the 30

days because he is incarcerated. However, our supreme court addressed the question

in Ratliff, holding that “[i]f a person is incarcerated and unable to appear in court, his

failure to appear cannot be deemed ‘willful’ within the meaning of section 32-10.”

Ratliff, 65 Ill. 2d at 319. Ratliff remains the only supreme court decision on this issue

and is binding on all lower courts. People v. Artis, 232 Ill. 2d 156, 164 (2009).

¶ 24   In Ratliff, the defendant was originally charged with theft and released on bail.

When defendant failed to appear in court, the trial court ordered his bond be forfeited

and issued a warrant for his arrest. Defendant failed to surrender within 30 days of the

bond forfeiture and the State charged him with violation of bail bond. During a bench

trial on this charge, testimony from the defendant and his father established that

defendant was unable to appear on his court date because he was incarcerated for

another offense at the time. Ratliff, 65 Ill. 2d at 316. During the 30-day surrender

period, the defendant had been incarcerated, then free for 9 days and then

incarcerated again. The defendant testified that he had spoken to a legal aid attorney

about his pending court date. He stated the attorney had told him that she would have

the case continued and would let him know the date of his next court appearance but

she had failed to do so. Ratliff, 65 Ill. 2d at 316-17. The trial court found the defendant

guilty of violation of bail bond. The appellate court reversed, finding the State failed to

prove defendant guilty beyond a reasonable doubt of willfully failing to appear in court

when required to do so. Ratliff, 65 Ill. 2d at 317.


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¶ 25   Our supreme court affirmed, agreeing that the defendant was not proved guilty

beyond a reasonable doubt. Ratliff, 65 Ill. 2d at 320. The court found that the

testimony of defendant and his father tended to establish that the defendant's failure to

appear was not willful. Ratliff, 65 Ill. 2d at 319. It held that, “[i]f a person is incarcerated

and unable to appear in court, his failure to appear cannot be deemed ‘willful’ within the

meaning of section 32-10.” Ratliff, 65 Ill. 2d at 319. The court found that the fact that

the defendant had been free for 9 days during the 30-day surrender period did not

indicate that he would not have surrendered himself to the court within the requisite 30

days. Ratliff, 65 Ill. 2d at 320.

¶ 26   We are bound by our supreme court's decision in Ratliff. However, other

jurisdictions' decisions regarding the effect of incarceration on the 30-day surrender

period in a bail jumping statute, although not binding, are instructive. For example, in

People v. Bayless, 390 N.Y.S.2d 983 (N.Y. Co. Ct. 1977), the court held that "bail

jumping is inchoate until the expiration of thirty days" and "the crime of bail jumping is

not complete until thirty days have expired after failure to appear, a fortiori one cannot

be guilty of bail jumping when that [thirty-day] period is aborted by an arrest on such a

charge." Bayless, 390 N.Y.S.2d at 986-87.

¶ 27   Similarly, in People v. Shurn, 418 N.Y.S.2d 442 (N.Y. App. Div. 1979) (aff'd

People v. Shurn, 409 N.E.2d 923 (N.Y. 1980)), the court held that the crime of bail

jumping is not complete until 30 days have expired after a defendant's failure to appear

and, because the Shurn defendant was arrested prior to the expiration of the 30-day


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grace period, the indictment against him should be dismissed. Shurn, 418 N.Y.S.2d at

443.

¶ 28   In the same vein, the court in Harcum v. State, 710 A.2d 358 (Md. Ct. Spec. App.

1998), held that "when there is a recapture or a surrender within the thirty-day period,

there cannot be a willful failure to surrender within thirty days since what is prohibited

under the statute, i.e., willful failure to surrender oneself, must occur after the thirty days

have elapsed." Harcum, 710 A.2d at 362. "[T]he only logical reading of the statute is

that a determination whether the appellant has willfully failed to surrender himself is

premised on his remaining at large after the thirty-day grace period has elapsed."

Harcum, 710 A.2d at 362.

¶ 29   Following Ratliff, we find defendant's failure to surrender within the statutory 30

days, by December 15, 2006, cannot be deemed willful. As was the defendant in

Ratliff, defendant here was in custody at the expiration of the 30-day surrender period.

He had been arrested in Hawaii on December 12, 2006, the twenty-seventh day of the

surrender period. He remained in the custody of the Honolulu police department until

after December 15, 2006, the thirtieth day of the surrender period. Defendant's

incarceration meant that he was unable to surrender during the last 3 days of the 30-

day surrender period. Consequently, pursuant to Ratliff, his failure to surrender during

the statutory period cannot be deemed willful. Ratliff, 65 Ill. 2d at 319-20.

¶ 30   The State argues that defendant should not be able to argue that his arrest 3

days before the 30-day time period expired precludes his conviction for violating bail


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bond because it "effectively turns the statute into both a shield for defendant to hide

behind, and a sword for defendant to use as a weapon to excuse his flagrantly willful

misconduct." It asserts that, as a fugitive, defendant should not be rewarded under the

law for violating the conditions of his bail bond by being in Hawaii, with no intention of

returning to Illinois, when he is arrested and returned to Illinois more than 30 days after

his bond forfeiture.

¶ 31   This argument ignores the simple fact that it is the State's burden to prove each

element of the offense, including in this case, defendant's willful failure to surrender,

beyond a reasonable doubt. Whether, at the time of his arrest, defendant intended to

surrender during the 30 days is immaterial. The fact remains that he was in custody of

the Honolulu police department for the last 3 days of the 30-day surrender period and

was, therefore, unable to surrender during that 3-day period. To paraphrase our

supreme court in Ratliff, the fact that defendant was free for 27 days of the 30-day

surrender period does not indicate that he would not have surrendered himself to the

court within the remaining 3 days. Ratliff, 65 Ill. 2d at 320 (the fact that the defendant

was free for 9 of the 30 days did not indicate that he would not have surrendered

himself to the court within the 30 days). Defendant testified that he had intended to

surrender within the 30-day period. Further, even if, on the twenty-seventh day of the

surrender period, defendant had not intended to timely surrender, his arrest and

incarceration three days before the expiration of the surrender period denied him the

opportunity to change his mind.


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¶ 32   The State cites to People v. Albarran, 40 Ill. App. 3d 344 (1976), in which the

court held that the defendant’s failure to surrender himself was willful where he failed to

appear in court, failed to come to the court the following day and did not make any

further inquiries into his case. Albarran, 40 Ill. App. 3d at 347. Albarran is

distinguishable. In Albarran, the defendant was free and " 'out in the streets' " for the

entire 30-day surrender period and well able to surrender. Albarran, 40 Ill. App. 3d at

345. Here, in contrast, defendant was neither free nor "in the streets" for the entire

period. Instead, defendant was in the custody of the Honolulu police department for the

last 3 days of the surrender period and, therefore, unable to willfully surrender during

that 30-day period.

¶ 33   We are bound by our supreme court's decision in Ratliff. Accordingly, since

defendant was arrested within the 30-day statutory period and incarcerated when the

30-day period expired, the State cannot and did not prove beyond a reasonable doubt

that his failure to surrender within the 30 days was willful. Therefore, we reverse

defendant’s two convictions for violation of bail bond under section 32-10(a).

¶ 34                                2. Jury Instructions

¶ 35   Defendant argues that the court erred in (a) denying his request for supplemental

jury instructions based on Ratliff and (b) responding to the jury's note with an instruction

that "[a] defendant's absence from a criminal proceeding caused by imprisonment in a

foreign state is not 'without fault,' " a statement contrary to the Ratliff holding. Given our

determination that defendant's convictions for violation of bail bond should be reversed,


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we need not address his arguments regarding the jury instructions.

¶ 36                                3. Fines and Fees

¶ 37   Following defendants' convictions on all charges, the court imposed various fees

and fines under indictment number 07 CR 1771, including the following:

       - $5 court system fee under section 5-1101 of the Counties Code (55 ILCS 5/5-

       1101(a)(West 2010)) (imposed for a violation of the Illinois Vehicle Code);

       - $25 court supervision fee under section 16-104c of the Illinois Vehicle Code

       (625 ILCS 5/16-104c (West 2010)) (imposed upon receipt of a disposition of

       court supervision);

       - $20 serious traffic violation fee under section 16-104d of the Illinois vehicle

       Code (625 ILCS 5/16-104d (West 2010)) (imposed for a violation of the Illinois

       Vehicle Code);

       - $200 domestic violence fine under section 5-9-1.5 of the Unified Code of

       Corrections (730 ILCS 5/5-9-1.5 (West 2010)) (imposed for a violation of any of a

       myriad of enumerated offenses where the offender and victim are family or

       household members); and

       - $20 violation of an order of protection fine under section 5-9-1.11(a) of the

       Unified Code of Corrections (735 ILCS 5/5-9-1.11(a) (West 2010)) (imposed for

       a violation of an order of protection where the offender and victim are family or

       household members).

¶ 38   Defendant argues that the court erred in imposing the fees because he neither


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violated the Vehicle Code nor received a disposition of court supervision. He also

argues the court erred in imposing the fines because he was not convicted of the

predicate offenses. The State agrees that the enumerated fees and fines should not

have been imposed. The record bears this out. Accordingly, we vacate the $5 court

system fee, the $25 court supervision fee, the $20 serious traffic violation fee, the $200

domestic violence fine and the $20 violation of an order of protection fine.

¶ 39                                   Conclusion

¶ 40   For the reasons stated above, we reverse defendant's convictions and sentence

for violation of bail bond under indictments numbers 07 CR 1772 and 07 CR 1773 only.

We also vacate the following fees and fines imposed on indictment number 07 CR

1771: $5 court system fee, $25 court supervision fee, $20 serious traffic violation fee,

$200 domestic violence fine and $20 violation of an order of protection fine.

¶ 41   Reversed as to indictments numbers 07 CR 1772 and 07 CR 1773 only;

enumerated fees and fines vacated.




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