                                         2015 IL App (3d) 130109

                                Opinion filed March 5, 2015
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2015

     THE PEOPLE OF THE STATE OF                       )       Appeal from the Circuit Court
     ILLINOIS,                                        )       of the 14th Judicial Circuit,
                                                      )       Whiteside County, Illinois,
            Plaintiff-Appellee,                       )
                                                      )       Appeal No. 3-13-0109
            v.                                        )       Circuit No. 11-CF-443
                                                      )
     HOWARD A. McCLINTON,                             )       Honorable
                                                      )       Stanley B. Steines,
            Defendant-Appellant.                      )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court, with opinion.
           Justices O'Brien and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          A jury found defendant, Howard A. McClinton, guilty of delivery of less than one gram

     of cocaine, and the court sentenced him to seven years' incarceration. At the sentencing hearing,

     the court imposed various fines and fees and ordered defendant to pay $2,958 to reimburse the

     county for the public defender's services. Defendant appeals, arguing that the court abused its

     discretion by imposing the public defender fee and that defendant is entitled to additional $5-per-

     day credit toward his fines. We vacate the public defender fee, and remand with directions; we
     also order the circuit clerk to apply the appropriate sentencing credit, and otherwise affirm

     defendant's conviction.

¶2          A jury found defendant guilty of unlawful delivery of a controlled substance (less than

     one gram of cocaine) within 1,000 feet of a church (Class 1 felony) (720 ILCS 570/407(b)(2)

     (West 2012)) and unlawful delivery of a controlled substance (less than one gram of cocaine)

     (Class 2 felony) (720 ILCS 570/401(d) (West 2012)).

¶3          Prior to sentencing, the State moved the court to order that defendant reimburse the

     county $2,958 for services provided by appointed counsel. In the motion, the State asserted that

     defendant had the ability to pay $2,958, but did not support that assertion with any facts.

     Defendant filed a motion requesting $5-per-day credit under section 110-14 of the Code of

     Criminal Procedure of 1963 (Code) (725 ILCS 5/110-14 (West 2012)) for time spent in

     presentence custody. The motion asserted that defendant had spent 252 days in presentence

     custody.

¶4          The cause proceeded to a sentencing hearing. Defendant gave an unsworn statement, in

     which he said that he was physically capable of working and hoped to take advantage of general

     educational development classes and work training in prison. The court imposed a sentence on

     only the Class 2 felony, and ordered that defendant serve seven years' incarceration.

¶5          Based solely on the presentence investigation and the statements made by defendant in

     allocution prior to sentencing, the court found that defendant was physically able to work and

     had the ability to reimburse the county $2,958 for services he received from the public defender.

     The court did not allow defendant an opportunity to present evidence on his ability to pay, nor

     did the court ask defendant any questions.




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¶6            The court also imposed all the assessments requested by the State, including a $150 street

       value fine; a $100 lab fee; a $1,000 drug assessment; a $100 Trauma Center Fund fine; a $5

       spinal cord injury fee; a $150 reimbursement to the Sterling police department for funds used in

       the controlled buys in the present case; a $25 State Police Services Fund assessment; and a $20

       pill and drug disposal assessment. The court then added $90 in fees to the State's Attorney, and a

       $100 Violent Crime Victims Assistance Fund fine. A written order found that defendant had

       spent 252 days in presentence custody, entitling him to a credit of $1,260, to be applied to the

       street value fine, the drug treatment fund assessment, and the Trauma Center Fund fine. The

       clerk's costs sheet, however, did not reflect application of the credit.

¶7            Defendant filed a motion to reconsider his sentence, which was denied.

¶8            On appeal, defendant raises two issues: (1) that the public defender reimbursement fee

       was imposed without the hearing required by section 113-3.1 of the Code (725 ILCS 5/113-3.1

       (West 2012)); and (2) that the circuit clerk did not accurately apply defendant's $5-per-day

       sentencing credit (725 ILCS 5/110-14 (West 2012)) against his fines.

¶9                                   I. Public Defender Reimbursement Fee

¶ 10          Section 113-3.1 of the Code grants the court the authority to order a defendant to

       reimburse the county or the State a "reasonable sum" for representation provided by appointed

       counsel. 725 ILCS 5/113-3.1(a) (West 2012). Either the State or the court may move for a

       hearing to determine defendant's ability to pay the reimbursement. The hearing may occur

       anytime after the appointment of counsel but must occur no later than 90 days after the entry of a

       final judgment disposing of the case. Id. The reimbursement monies are to be paid by the

       defendant to the circuit clerk to reimburse either the county or the State for appointed counsel's

       services. Id.


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¶ 11          Section 113-3.1(a) provides the necessary procedural framework for the reimbursement

       hearing. Id. First, the court must give defendant notice of the hearing. People v. Somers, 2013

       IL 114054, ¶ 14. That notice is necessary so that the defendant can prepare evidence of his or

       her financial circumstances. At the hearing, the defendant must be given the opportunity to

       present evidence regarding his or her ability to pay and any other relevant circumstances. Id.

       The hearing must focus on the costs of representation, the defendant's financial circumstances,

       and the foreseeable ability of the defendant to pay. Id. The court must consider the assets and

       liabilities affidavit attested to by defendant under section 113-3(b) of the Code (725 ILCS 5/113-

       3(b) (West 2012)). Somers, 2013 IL 114054, ¶ 14. The procedural safeguards provided by

       section 113-3.1(a) are necessary to meet the demands of due process. See People v. Cook, 81 Ill.

       2d 176 (1980) (holding unconstitutional the predecessor to section 113-3.1 because the former

       statute did not require a hearing to determine defendant's ability to pay).

¶ 12          In the present case, the court did not comply with the requirements of section 113-3.1(a)

       because defendant was not given notice of the hearing and was not afforded an opportunity to

       present evidence regarding his ability to pay. A defendant does not waive his due process right

       to the procedural safeguards described by section 113-3.1 by failing to object when those

       safeguards are not met. See People v. Love, 177 Ill. 2d 550, 564-65 (1997).

¶ 13          Several recent Illinois cases have addressed whether a court of review should remand for

       a new public defender fee hearing after vacating a public defender fee for failure to comply with

       section 113-3.1. See, e.g., Somers, 2013 IL 114054; People v. Gutierrez, 2012 IL 111590;




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       People v. Collins, 2013 IL App (2d) 110915; People v. Williams, 2013 IL App (2d) 120094. In

       addition, several unpublished cases have addressed the issue. 1

¶ 14          The issue in those cases was whether the 90-day time limit provided by section 113-

       3.1(a) prevents a court of review from remanding for a new hearing after 90 days have passed

       since the final judgment in the trial court. See, e.g., Somers, 2013 IL 114054, ¶ 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."). In Somers, the supreme court held that, where the trial court initially complies with the

       time limit by holding "some sort of a hearing" (id. ¶ 15) within 90 days, "there is simply no

       impediment to remanding the cause for a proper hearing" (id. ¶ 18).

¶ 15          The issue that we must resolve is whether the proceedings in the trial court constituted

       "some sort of a hearing" into defendant's ability to pay within the 90-day period. Somers did not

       define the minimum amount of procedural due process necessary to qualify as "some sort of a

       hearing." In Somers, the trial court addressed the defendant's ability to pay in open court, with

       the parties present, and asked the defendant three questions about his ability to pay. The court

       listened to the defendant's answers and then imposed a public defender fee. The court did not

       give the defendant the opportunity to present additional evidence or argument.

¶ 16          In this case, the parties were in open court for sentencing; the court did not question

       defendant about the public defender fees. Instead, it relied only on the presentence investigation

       report and the defendant's statement in allocution before sentencing.

              1
                  See, e.g., People v. Kyle, 2014 IL App (2d) 120260-U; People v. Simmons, 2014 IL App

       (1st) 123255-U; People v. Jefferson, 2013 IL App (4th) 120089-U; People v. Remesch, 2013 IL

       App (4th) 120077-U.


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¶ 17          Black's Law Dictionary defines a "hearing" as a "judicial session, open to the public, held

       for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying."

       Black's Law Dictionary 836 (10th ed. 2014). In Anthony v. Gilbrath, our supreme court defined

       a hearing as "a judicial examination of the issues between the parties, whether of law or of fact."

       Anthony v. Gilbrath, 396 Ill. 125, 128 (1947). Taking some information from defendant's

       presentence report and his sentencing hearing and pronouncing an amount to be paid to the

       public defender lacked the substantial due process requirements and protections under the

       statute. The question we have, however, is whether the present proceedings constituted "some

       sort of a hearing," as stated in Somers.

¶ 18          To resolve this issue, we look to the intent of the statute itself. "The best indication of

       legislative intent is the statutory language, given its plain and ordinary meaning." People v.

       Jones, 223 Ill. 2d 569, 581 (2006). The intent of section 113-3.1 is to have a qualified defendant

       reimburse either the counties or the State for the cost of public defender representation. See 725

       ILCS 5/113-3.1 (West 2012). In light of this statutory purpose, we interpret the language

       broadly and find that the actions of the trial court were sufficient under Somers; it appears that

       some sort of a hearing was held. Thus, we remand the cause for a proper hearing under section

       113-3.1.

¶ 19                                              II. $5-per-day Credit

¶ 20          The parties agree that defendant is entitled to a $1,260 credit toward his fines under

       section 110-14 of the Code (725 ILCS 5/110-14 (West 2012)). On remand, the circuit clerk shall

       apply that credit toward defendant's fines, including the $1,000 drug assessment, the $150 street

       value fine, the $100 Trauma Center Fund fine, and the $25 State Police Services Fund fine.




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¶ 21          We commend the court and the parties for their attention to the costs phase of sentencing.

       Their actions created a clear record on appeal, from which this court can easily review the

       record, including the court's order allowing $5-per-day credit.

¶ 22                                             III. Conclusion

¶ 23          The judgment of the circuit court of Whiteside County is vacated in part, affirmed in part,

       and remanded with directions.

¶ 24          Vacated in part, affirmed in part, and remanded with directions.




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