                                   2017 IL App (1st) 150203
                                         No. 1-15-0203
                                Opinion filed September 19, 2017

                                                                            SECOND DIVISION
                                                                                      DATE

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS       )     Appeal from the
                                          )     Circuit Court of
                  Plaintiff-Appellee,     )     Cook County.
                                          )
v.                                        )     No. 10 CR 3493
                                          )
NORMAN BROWN,                             )     Honorable
                                          )     Mary Margaret Brosnahan,
                  Defendant-Appellant.    )     Judge, presiding.
______________________________________________________________________________

       JUSTICE HYMAN delivered the judgment of the court, with opinion.
       Presiding Justice Neville and Justice Mason concurred in the judgment and opinion.

                                           OPINION

¶1     Norman Brown appeals from the first-stage dismissal of his postconviction petition for

relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). Brown

contends that the trial court erred in dismissing his petition because he presented an arguable

claim that his trial counsel was ineffective for failing to investigate and present to the jury the

knife used by the victim during the altercation in which Brown shot the victim.

¶2     We affirm. Brown could have raised counsel’s failure to investigate or obtain the knife on

direct appeal. Accordingly, this claim is forfeited and was properly dismissed as frivolous and

patently without merit. And, even if not forfeited, Brown’s allegation that trial counsel was

ineffective for failing to investigate the knife is meritless. We also correct the mathematical

miscalculation in the fines, fees, and costs order. But, Brown cannot resurrect in this appeal

issues on the merits of assessments (which would have been properly raised, if preserved, in his
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direct appeal) as if he were applying the ministerial correction of a mathematical calculation

called for under section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14

(West 2010)). Brown has not persuaded us to ignore the lack of appellate jurisdiction. See

People v. Griffin, 2017 IL App (1st) 143800, ¶ 21 (rejecting effort to “revest” appellate court

with jurisdiction when jurisdiction never revested in trial court).

¶3                                          Background

¶4      In September 2010, Brown went to a jury trial on one count of aggravated battery with a

firearm (720 ILCS 5/12-4.2(a)(1) (West 2010)) for shooting Robert Jacks. The facts presented at

trial follow.

¶5      In 2010, Brown and Mary Chatman were married but divorcing. Brown lived in Indiana;

Chatman in Chicago. They shared custody of their daughter. On January 10, 2010, Brown was

scheduled to return their daughter to Chatman after a weekend visitation. Chatman told Jacks,

her friend and second-floor neighbor, that she was worried about how the exchange would go

with Brown.

¶6      That evening, Brown brought their daughter up to Chatman’s apartment instead of

meeting Chatman downstairs as arranged. Chatman asked Brown to leave and texted Jacks,

alerting him to Brown’s arrival. Brown used her bathroom, made sexual advances toward her,

and attempted to discuss reconciliation.

¶7      Jacks and his daughter, Tracy, left their apartment to meet the child in the front of the

building, but no one was there. Jacks called the police and went upstairs with Tracy to check on

Chatman. Their arrival agitated Brown. He pushed them out into the hallway and locked the

door. Tracy used a spare key to reenter, further agitating Brown. He yelled, pushed Tracy down,


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and grabbed Jacks’s arm. Jacks grabbed Brown’s arm. Tracy was a few feet inside the apartment;

Jacks was in the hallway.

¶8     Chatman left the apartment with their daughter. Jacks blocked Brown from following

them. Brown backed Jacks and Tracy into the hall. Tracy was between Brown and Jacks. Jacks

testified that Brown drew his gun and aimed it at him and Tracy. In response, Jacks pulled out a

knife, which he testified was small, sharp-pointed, and primarily used for cutting small items like

butter. He kept the knife with him for protection in the neighborhood. Jacks testified that he did

not swing the knife at Brown or threaten him with it.

¶9     Brown fired at the ground in front of Jacks’ feet several times, hitting Jacks’ leg with his

last shot. Jacks was taken to the hospital, where it was determined that the bullet went through

his leg. Tracy testified that she was in front of her father and never saw a knife.

¶ 10   Chicago police officer Edwin Jones, an evidence technician, recovered one fired .32-

caliber bullet and .32-caliber bullet casing and observed blood on the hallway floor outside of

Chatman’s apartment. He recovered nothing else in either the hallway or apartment.

¶ 11   Brown testified that he drew his gun after Jacks pulled out a kitchen knife with an eight-

inch blade, reached around Tracy, and tried to cut Brown with it, nicking his arm. He repeatedly

told Jacks to drop the knife, telling him “[d]rop the damn knife[,] I’m not playing with you.” He

“wasn’t trying to shoot [Jacks]. [He] just figured he was a damn fool in the first place.” Asked

whether he shot Jacks on purpose or to scare him, Brown responded that he “just wanted him to

drop the knife” and “wasn’t planning on shooting at all.” He “just wanted to let [Jacks] know he

wasn’t playing with him” where Jacks had “came out like a coward and reached around and




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came straight at” him. After the shooting, Brown immediately left and drove back to Indiana. He

admitted he discarded the gun along the way.

¶ 12    In closing, defense counsel argued that Jacks was irrational and “unbalanced” and Brown

was justified in discharging his gun because Jacks was coming at him with a knife and Brown

had no alternative. The jury found Brown guilty of aggravated battery with a firearm.

¶ 13    In February 2011, the trial court conducted an inquiry under People v. Krankel, 102 Ill.

2d 181 (1984), on Brown’s posttrial motion claiming ineffective assistance of counsel. Brown

asserted that counsel was ineffective for, inter alia, failing to investigate the necessary evidence

and failing to present evidence and arguments in support of his self-defense claim. Ultimately,

the trial court found that trial counsel was not ineffective.

¶ 14    Brown’s trial counsel filed a motion, and then an amended motion, for a new trial. The

trial court denied Brown’s motion to reconsider its Krankel ruling. Brown’s trial counsel

withdrew, and the court appointed a public defender. In April 2011, the court denied the public

defender’s request to reopen the Krankel hearing on Brown’s ineffective assistance of counsel

claims. The public defender filed a third amended motion for a new trial, which the trial court

denied. Brown was sentenced to eight years’ imprisonment.

¶ 15    Brown filed an appeal. Brown’s appellate counsel filed a motion to withdraw under

Anders v. California, 386 U.S. 738 (1967), arguing that there were no meritorious issues to be

raised on appeal. 1 Brown filed a response, arguing that he was not proven guilty beyond a

reasonable doubt and that his trial counsel provided ineffective assistance of counsel. We granted

        1
         Counsel filed a motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987). Due to
the procedural posture of the case, we recharacterized the filing as a motion to withdraw under Anders v.
California, 386 U.S. 738 (1967). See People v. Brown, 2013 IL App (1st) 122919-U, ¶ 2 (summary
order).

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the motion to withdraw and affirmed the judgment of the trial court, agreeing with appellate

counsel that an appeal would be without arguable merit, People v. Brown, 2013 IL App (1st)

122919-U (summary order).

¶ 16   Brown filed a pro se petition and supplemental petition for postconviction relief, raising

multiple claims. His sole claim on appeal is that his trial counsel was ineffective for failing to

investigate or obtain the knife used by Jacks and present it to the jury. The trial court summarily

dismissed Brown’s postconviction petition, finding it frivolous and patently without merit. It

concluded, inter alia, that, “while the size of the knife was in dispute,” The trial court denied

Brown’s ineffective assistance of counsel claim for failure to investigate the knife as there was

no prejudice “in light of [defendant’s] own trial testimony that he shot the victim not because he

believed that such conduct was necessary to defend himself, but instead because he wanted to

scare the victim.” (Emphasis in original.)

¶ 17                                         Analysis

¶ 18   Brown argues that the trial court improperly dismissed his postconviction petition as it

stated the gist of a constitutional claim of ineffective assistance of trial counsel for counsel’s

failure to investigate and obtain Jacks’ knife. Brown also asks that we vacate one assessment and

correct his fines and fees order to impose presentence custody credit against eligible fines.

¶ 19                          Claim of Ineffective Assistance of Counsel

¶ 20   Brown first asserts he made an arguable constitutional claim of ineffective assistance of

counsel in his postconviction petition based on trial counsel’s failure to investigate or attempt to

obtain the knife used by Jacks and present it to the jury. He asserts that the knife would have

supported his theory of self-defense at trial and would have served to impeach Jacks’s testimony


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regarding its size. The State responds that the court properly dismissed Brown’s petition as he

failed to make an arguable claim of ineffective assistance. Either it is barred by res judicata and

forfeited, or fails on the merits.

¶ 21    “The Post-Conviction Hearing Act provides a procedural mechanism through which a

criminal defendant can assert that his federal or state constitutional rights were substantially

violated in his original trial or sentencing hearing.” People v. Davis, 2014 IL 115595, ¶ 13. A

proceeding initiated under the Act is “not a substitute for a direct appeal, but rather is a collateral

attack on a prior conviction and sentence.” Id. The Act allows inquiry into constitutional issues

arising in the original proceeding that have not been raised and could not have been adjudicated

on direct appeal. Id. Issues raised and decided on direct appeal are barred by the doctrine of res

judicata, and issues that could have been raised on direct appeal are forfeited. Id.

¶ 22    Proceedings are divided into three stages. People v. Pendleton, 223 Ill. 2d 458, 472

(2006). This appeal relates only to the first stage. “At the first stage, the circuit court must,

within 90 days of the petition’s filing, independently review the petition, taking the allegations as

true, and determine whether ‘the petition is frivolous or is patently without merit.’ ” People v.

Hodges, 234 Ill. 2d 1, 10 (2009) (quoting People v. Edwards, 197 Ill. 2d 239, 244 (2001)); 725

ILCS 5/122-2.1(a)(2) (West 2010). A petition is frivolous or patently without merit where it has

no arguable basis in law or in fact. Hodges, 234 Ill. 2d at 11-12. A legal theory is “indisputably

meritless” if it is “completely contradicted by the record,” and a factual allegation is “fanciful” if

it is “fantastic or delusional.” Id. at 16-17. A postconviction petition may be summarily

dismissed as frivolous and patently without merit based on both res judicata and forfeiture.

People v. Blair, 215 Ill. 2d 427, 442 (2005).



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¶ 23   To survive the first stage, a petition need present only the gist of a constitutional claim.

People v. Allen, 2015 IL 113135, ¶ 24. “The ‘gist’ standard is ‘a low threshold.” Edwards, 197

Ill. 2d at 244 (quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996)). “To set forth the ‘gist’ of

a constitutional claim, the post-conviction petition ‘need only present a limited amount of detail’

[citation] and hence need not set forth the claim in its entirety. Id. (quoting Gaultney, 174 Ill. 2d

at 418). We review the summary dismissal of a petition de novo. Hodges, 234 Ill. 2d at 9.

¶ 24   Brown’s petition alleged that his trial counsel was ineffective for failing to investigate or

obtain Jacks’s knife or both. Claims of ineffective assistance of counsel are reviewed under the

test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, “[t]o prevail

on a claim of ineffective assistance *** a defendant must show both that counsel’s performance

‘fell below an objective standard of reasonableness’ and that the deficient performance

prejudiced the defense.” Hodges, 234 Ill. 2d at 17 (quoting Strickland, 466 U.S. at 687-88). In

the context of a postconviction petition, a claim alleging ineffective assistance of counsel may

not be dismissed at the first stage if (i) counsel’s performance arguably fell below an objective

standard of reasonableness and (ii) the petitioner was arguably prejudiced as a result. Id.

¶ 25    “In demonstrating, under the first Strickland prong, that his [or her] counsel’s

performance was deficient, a defendant must overcome a strong presumption that, under the

circumstances, counsel’s conduct might be considered sound trial strategy.” People v. Houston,

226 Ill. 2d 135, 144 (2007). Decisions that trial counsel makes regarding trial strategy are

“ ‘virtually unchallengeable.’ ” People v. McGee, 373 Ill. App. 3d 824, 835 (2007) (quoting

People v. Palmer, 162 Ill. 2d 465, 476 (1994)). Even mistakes in trial strategy will not, standing




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alone, establish ineffectiveness. Palmer, 162 Ill. 2d at 476. There is a strong presumption

counsel’s conduct falls within the range of reasonable actions. McGee, 373 Ill. App. 3d at 835.

¶ 26   We find Brown’s claim of counsel’s ineffectiveness to be forfeited as this argument could

have raised in Brown’s direct appeal. On direct appeal, appellate counsel moved to withdraw

under Anders, finding no meritorious issues to be raised. Brown filed a response, arguing the

motion to withdraw should be denied as he was not proven guilty beyond a reasonable doubt and

his trial counsel was ineffective. Brown set forth a litany of claims against his counsel, accusing

counsel of, for example, making prejudicial and racist statements to the jury, lying to him, and

failing to elicit testimony from Brown that the firearm accidently discharged. (Defendant’s

response to appellate counsel’s motion to withdraw is not in the record on appeal. But, the

response is in the files maintained by this court, and we will consider it. See People v. Jackson,

182 Ill. 2d 30, 66 (1998) (“a court will take judicial notice of its own records”). Brown also

alleged, in a single sentence, that trial counsel ignored “the evidence given to him,” but did not

specify what that evidence was. After considering Brown’s response, we granted counsel leave

to withdraw and affirmed the conviction and sentence, finding Brown’s arguments without merit.

¶ 27   At no point in his response to the Anders motion did Brown argue that counsel was

ineffective for failing to investigate or obtain Jacks’ knife, let alone that the knife would have

supported his purported self-defense claim. Brown could have raised counsel’s failure to obtain

the knife in his response, as the absence of the knife was in the record on direct appeal. In fact,

the record reflects that defense counsel called the absence of the knife to the jury’s attention,

arguing in closing: “By the way, [it’s] not where’s the gun. Where’s the knife? *** Just simply

where was the knife that you used, Robert? Do you still have it? That never came up.” As the



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trial court noted in its order, “all of the claims of ineffectiveness raised in the instant petition

either appeared on the face of the original appellate record or were known to the petitioner at the

time of his direct appeal.” Because counsel’s alleged ineffectiveness for failing to investigate or

present the knife was ascertainable from the record and could have been raised and determined

on direct appeal, the issue is forfeited. People v. Johnson, 352 Ill. App. 3d 442, 448 (2004).

¶ 28   We note that res judicata and forfeiture principles apply even in the context of an

appellate counsel’s Anders motion to withdraw on direct appeal where, as here, the defendant

filed a response to the motion. See People v. Addison, 371 Ill. App. 3d 941, 947 (2007)

(allegations in postconviction petition were barred by res judicata and forfeiture because

defendant had either raised issues in response to Anders motion on direct appeal or could have

raised them in response). So, as Brown could have raised counsel’s failure to investigate or

obtain the knife on direct appeal, his claim is forfeited and was properly dismissed as frivolous

and patently without merit. Blair, 215 Ill. 2d at 436 (where forfeiture precludes defendant from

obtaining relief, claim is “necessarily ‘frivolous’ and ‘patently without merit’ ”).

¶ 29   Even if it is not forfeited, Brown’s ineffectiveness allegation is meritless. A strong

presumption exists that trial counsel acted effectively in investigating a case. People v.

Domagala, 2013 IL 113688, ¶ 38 (citing People v. Kokoraleis, 159 Ill. 2d 325, 330 (1994)).

Counsel is not ineffective for eschewing further investigation where circumstances known to

counsel at the time of the investigation do not demonstrate a need for further investigation.

People v. Henry, 2016 IL App (1st) 150640, ¶ 65 ( People v. Pecoraro, 175 Ill. 2d 294, 324

(1997)). Here, nothing in the record demonstrates that the knife was recovered or in possession

of the State. This is corroborated by Brown’s postconviction petitions. Brown made the



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unsupported argument that the State committed a discovery violation by failing to disclose “a

‘butchers’ knife, possessed and wielded by the victim.” Accordingly, counsel could not have

presented the knife to the jury.

¶ 30   To the extent that Brown appears to argue that trial counsel somehow should have

obtained the knife from Jacks, there is no basis to conclude that counsel’s investigation of the

knife would have produced evidence useful to the defense. It is pure speculation that counsel’s

efforts would have produced an eight-inch butcher knife, especially in light of Jacks’ testimony

that the knife was small and primarily used for cutting butter.

¶ 31   Instead, trial counsel strategically used the absence of the knife to benefit Brown.

Counsel’s closing argument shows that the State’s failure to produce the knife formed a crucial

component of counsel’s trial strategy to discredit Jacks’s and Tracy’s testimony, the only

witnesses against Brown. Counsel’s decision to focus on the weaknesses in the State’s case,

including its failure to produce the knife, was a matter of reasonable trial strategy that cannot

support a claim of ineffective assistance of counsel. People v. Munson, 206 Ill. 2d 104, 139-40

(2002) (matters of trial strategy are generally immune from claims of ineffective assistance of

counsel). Accordingly, Brown’s petition failed to make an arguable constitutional claim that

counsel’s performance fell below an objective standard of reasonableness by failing to

investigate or obtain Jacks’s knife. It had no arguable basis in law or fact and was properly

dismissed as frivolous and patently without merit. See Hodges, 234 Ill. 2d at 11-12.

¶ 32   We also agree with the trial court that Brown fails to make an arguable claim that the

knife’s absence was prejudicial. As the trial court stated, the outcome would have been the same




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regardless of the size of the knife, given Brown’s “own trial testimony that he shot the victim

***because he wanted to scare the victim” (Emphasis in original.)

¶ 33                                     Fines and Fees

¶ 34   Brown next argues that the trial court failed to give him $5 per day of credit for the 561

days he spent in presentence custody and that the presentence custody credit should be applied to

his $10 mental health court assessment, $5 youth diversion/peer court assessment, $5 drug court

assessment, $30 children’s advocacy center assessment, $15 state police assessment, and $50

court system assessment. Brown further argues that this court should vacate the $5 electronic

citation fee. The State agrees that Brown is owed presentence credit for his time in custody

before sentencing, which should be applied to all of the above except for the $50 court systems

assessment. The State further agrees that the electronic citation fee should be vacated. We review

de novo the imposition of fines and fees. People v. Bowen, 2015 IL App (1st) 132046, ¶ 60.

¶ 35   Brown did not raise these claims at trial, on direct appeal, or in his postconviction

petition, and those claims are arguably forfeited. People v. Hillier, 237 Ill. 2d 539, 544 (2010).

To determine whether or not we should address them, we must take a closer look at their

foundation. Brown’s arguments may be broken down into two categories. First, Brown contends

that the trial court made what can be characterized as mathematical errors in calculating how

much he owes. In this regard, Brown argues that the fines, fees, and costs order included in his

common law record does not reflect his $5 per day credit for the 561 days he spent in custody

before trial, which should be applied to offset certain fines charged him. Second, Brown

contends that certain fees he was assessed should be considered fines to be offset by his




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monetary presentence incarceration credit and that the electronic citation fee was improperly

assessed. We address Brown’s claims of mathematical error first.

¶ 36    Although Brown’s request for presentence credit is raised for the first time on appeal,

section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2010))

permits this court to award a defendant presentence custody credit on “application of the

defendant.” 725 ILCS 5/110-14 (West 2010). Claims for presentence custody credit under

section 110-14 may be raised “at any time and at any stage of court proceedings, even on appeal

in a postconviction petition.” People v. Caballero, 228 Ill. 2d 79, 88 (2008) (holding Caballero

was entitled to $5 per day for the 118 days he spent in custody before sentencing). Granting

credit is a simple ministerial act that promotes judicial economy by ending any further

proceedings over the matter. People v. Woodard, 175 Ill. 2d 435, 456-57 (1993).

¶ 37    As recently explained in People v. Griffin, 2017 IL App (1st) 143800, where, as here, a

case involves an appeal from a properly filed postconviction petition and it is undisputed that the

appeal is properly before the court, “Caballero, in essence, stands for the proposition that a

defendant may ‘piggyback’ a section 110-14 claim onto any properly filed appeal, even if the

claim is unrelated to the grounds for that appeal.” Griffin, 2017 IL App (1st) 143800, ¶ 25; see

also People v. Grigorov, 2017 IL App (1st) 143274, ¶ 7. So, we will address Brown’s claim for

presentence custody credit.

¶ 38    A defendant is entitled to a $5 credit toward the fines levied against him or her for each

day of incarceration before sentencing. 725 ILCA 5/110-14(a) (West 2010). Brown accumulated

561 days of presentence custody credit and is entitled to as much as $2805 of credit toward his

eligible fines.



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¶ 39   Brown is entitled to use this presentence custody credit to offset the following fines: the

$10 mental health court assessment (55 ILCS 5/5-1101(d-5) (West 2010)), the $5 youth

diversion/peer court assessment (55 ILCS 5/5-1101(e) (West 2010)), the $5 drug court

assessment (55 ILCS 5/5-1101(f) (West 2010)), and the $30 children’s advocacy center

assessment (55 ILCS 5/5-1101(f-5) (West 2010)). Brown’s fines and fees order states that these

fines should be offset by his presentence incarceration credit. Despite this language, Brown was

charged $770 for fines, fees, and costs, which is the total of all charges imposed on him and does

not reflect the $50 credit to which he was entitled. His order should indicate that the total amount

owed by him is $720, not $770 as it currently states.

¶ 40   But while Caballero and section 110-14 permit Brown to raise his claim for the per diem

credit in these proceedings, they do not allow him to raise substantive issues concerning whether

particular assessments apply to his case or whether they are properly categorized as fines or fees.

In other words, Brown cannot resurrect issues on the merits of those assessments (which would

have been properly raised, if preserved, in his direct appeal) under the guise of applying for the

ministerial correction of a mathematical calculation called for under section 110-14. We have

previously held that fees assessed in error are not void, nor are they independently reviewable

under Illinois Supreme Court Rule 615(b). Grigorov, 2017 IL App (1st) 143274, ¶¶ 12-14. Thus,

we do not have independent subject matter jurisdiction over these claims.

¶ 41   Accordingly, we will not address Brown’s claims that the $15 state police fee (705 ILCS

105/27.3a(1.5) (West 2010)) and $50 court system fee (55 ILCS 5/5-1101(c) (West 2010)) are

really, despite their labels, fines as to which he should be allowed credit. By the same token, we




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will not address Brown’s claim that the $5 electronic citation fee (705 ILCS 105/27.3e (West

2010)) should not have been assessed.

¶ 42   The fact that the State (i) concedes that the electronic citation fee is not applicable here

and that the state police operations charge is actually a fine (People v. Nunez, 236 Ill. 2d 488,

493 (2010) (reviewing court not bound by party’s concession)) and (ii) addresses the merits of

Brown’s argument on the court system fee, does not persuade us that we should overlook the

lack of our appellate jurisdiction. See Griffin, 2017 IL App (1st) 143800, ¶ 22 (“It tortures the

concept of a reviewing court’s jurisdiction to speak of revestment of jurisdiction on appeal to

address issues never presented in the first instance to the trial court.”). Moreover, the idea that

the State’s concession to a substantive fines or fees argument could “revest” this court with

jurisdiction would be contrary to our Supreme Court’s directive that the revestment doctrine be

applied narrowly. See People v. Bailey, 2014 IL 115459, ¶ 16. Given the vast number of fines

and fees cases routinely before this court, the exception would literally swallow the rule.

¶ 43   Brown is entitled to presentence custody credit to offset (i) the $10 mental health court

assessment, (ii) the $5 youth diversion/peer court assessment, (iii) the $5 drug court assessment,

and (iv) the $30 children’s advocacy center assessment—a total reduction of $50. We direct the

clerk of the court to correct defendant’s fines and fees order. We affirm the judgment in all other

respects.

¶ 44   Affirmed as modified.




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