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                               Appellate Court                             Date: 2018.03.29
                                                                           12:47:34 -05'00'




                   People v. Smith, 2018 IL App (1st) 151402



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           SAMMY SMITH, Defendant-Appellant.



District & No.    First District, Second Division
                  Docket No. 1-15-1402



Filed             January 30, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 14-CR-12378; the
Review            Hon. Neil J. Linehan, Judge, presiding.



Judgment          Affirmed as modified; remanded with directions.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Christopher L. Gehrke, of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Brian K. Hodes, and Sheilah O’Grady-Krajniak, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             JUSTICE MASON delivered the judgment of the court, with opinion.
                  Justice Pucinski concurred in the judgment and opinion.
                  Presiding Justice Neville concurred in part and dissented in part, with
                  opinion.
                                              OPINION

¶1        Following a bench trial, defendant Sammy Smith was convicted of one count of burglary
     (720 ILCS 5/19-1(a) (West 2014)) and sentenced as a Class X offender to eight years in
     prison. On appeal, Smith raises no claims of error regarding his trial or sentence but
     challenges only certain assessed fines and fees. We order modification of the fines, fees, and
     costs order.
¶2        At the time the court sentenced Smith, it also assessed fines, fees, and costs of $749. The
     court also awarded Smith $80 in presentence custody credit, which reduced his total fines
     and fees to $669.
¶3        On appeal, Smith contends that the assessed fines, fees, and costs should be reduced from
     $669 to $100. He argues that (1) the electronic citation ($5) and DNA identification system
     ($250) fees should be vacated because they were improperly imposed and, (2) pursuant to
     section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14(a) (West
     2014)), he is entitled to presentence custody credit against assorted other assessments that are
     labeled “fees” but are actually “fines.”
¶4        Smith concedes he did not raise any issue regarding the propriety of the fines and fees
     assessed in the trial court. These issues are, therefore, forfeited. People v. Hillier, 237 Ill. 2d
     539, 544 (2010). He requests that we review his claims under the plain error doctrine, citing
     People v. Vara, 2016 IL App (2d) 140848, ¶ 7. He also asserts that this issue may be raised
     for the first time on appeal, citing People v. Woodard, 175 Ill. 2d 435, 457-58 (1997), and
     that we have the authority to modify the fines and fees order without remand pursuant to
     Illinois Supreme Court Rule 615(b). The State agrees with Smith that, even though he
     forfeited his claims by failing to raise them in the trial court, we may review them on all
     three bases.
¶5        We disagree with the parties that Smith’s challenge is reviewable under plain error or that
     we may review these unpreserved errors under Rule 615(b). Smith does not claim that the
     trial court failed to provide a fair process for determining his fines and fees. Therefore, his
     complained-of errors do not affect substantial rights and are not reviewable under the plain
     error doctrine. People v. Grigorov, 2017 IL App (1st) 143274, ¶¶ 13-14. Rule 615(b) likewise
     provides no stand-alone basis for modification of the fines and fees order, as it must be read
     in conjunction with subsection (a)’s mandate that errors not affecting substantial rights “shall
     be disregarded.” Ill. S. Ct. R. 615(a); Grigorov, 2017 IL App (1st) 143274, ¶¶ 13-15; People
     v. Griffin, 2017 IL App (1st) 143800, ¶ 9.
¶6        We also consider whether we may review Smith’s challenges in the context of his request
     for presentence credit and conclude we cannot. A defendant who is incarcerated on a bailable
     offense, who does not supply bail and against whom a fine is levied, is allowed a credit of $5
     for each day spent in presentence custody. 725 ILCS 5/110-14(a) (West 2014). This statute
     applies only to “fines” that were imposed after a conviction and does not apply to any other
     costs or “fees.” People v. Tolliver, 363 Ill. App. 3d 94, 96 (2006). Pursuant to People v.
     Caballero, 228 Ill. 2d 79, 88 (2008), claims for presentence custody credit pursuant to
     section 110-14 may be raised “at any time and at any stage of court proceedings, even on
     appeal in a postconviction proceeding.” See Griffin, 2017 IL App (1st) 143800, ¶ 25
     (“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

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     grounds for that appeal.”). However, “[g]ranting credit is a simple ministerial act that
     promotes judicial economy by ending any further proceedings over the matter.” People v.
     Brown, 2017 IL App (1st) 150203, ¶ 36 (citing Woodard, 175 Ill. 2d at 456-57). Smith here
     raises substantive issues pertaining to whether particular charges apply to his case or whether
     they are properly categorized as fines or fees. He does not seek the ministerial correction of a
     mathematical calculation envisioned under section 110-14. Accordingly, Caballero and
     section 110-14 do not save his substantive arguments from forfeiture.
¶7       Nevertheless, because the State does not argue that Smith has forfeited review of his
     challenge to the assessed fines and fees, it has waived any forfeiture argument. See People v.
     Williams, 193 Ill. 2d 306, 347-48 (2000) (rules of waiver and forfeiture apply to the State).
     We will therefore review Smith’s claims. The propriety of court-ordered fines and fees is
     reviewed de novo. People v. Bowen, 2015 IL App (1st) 132046, ¶ 60.
¶8       Before we turn to the particular assessments challenged by Smith, we take this
     opportunity to encourage state’s attorneys, public defenders, private counsel, and trial courts
     alike to take the minimal time necessary to examine fines and fees assessed against
     defendants in criminal cases to determine that they are correct and to make the mathematical
     calculation of the presentence custody credit to which the defendant is entitled as called for
     in the fines and fees order. (Unlike many appeals we consider, the trial court here did
     calculate the presentence credit to which Smith was entitled.) Given that the parties have 30
     days to return to the trial court to make corrections, this court should not be the court of first
     resort for these issues. Additionally, in countless appeals, including this one, the State not
     only takes the position that a defendant’s forfeiture of claimed errors in fines and fees may be
     overlooked but also concedes that, in fact, certain assessments were improperly imposed. We
     encourage this practice and further note that nothing prevents the parties from accomplishing
     the same result in the trial court by seeking an agreed remand for the purpose of correcting
     the fines and fees order. The delay and expense involved in briefing these issues in this court
     is perhaps the least efficient means of resolving them.
¶9       We realize that at a sentencing hearing during which a defendant is sentenced to a
     (perhaps lengthy) period of incarceration, the last thing that the parties likely focus on is the
     applicable fines and fees. That said, unpaid fines and, to a lesser extent, fees have (at least
     theoretically) lasting repercussions for criminal defendants. Unpaid fines (not including fees)
     in criminal cases may be subject to an order of withholding (730 ILCS 5/5-9-4 (West 2016)),
     which renders a defendant’s wages subject to garnishment under section 12-803 of the Code
     of Civil Procedure (735 ILCS 5/12-803 (West 2016)). There is a split of authority in Illinois
     as to whether wages earned by a defendant while incarcerated are likewise subject to
     withholding. See People v. Watson, 318 Ill. App. 3d 140, 142 (2000) (finding that trial court
     lacked authority to order Department of Corrections wages withheld). Contra People v.
     Mancilla, 331 Ill. App. 3d 35, 37-38 (2002) (disagreeing with Watson and finding
     Department of Corrections wages may be withheld to satisfy unpaid fines). Further, a
     criminal conviction results in a lien on the defendant’s real and personal property. 725 ILCS
     5/124A-10 (West 2016). Thirty days after judgment, a defendant’s property may be seized or
     sold to satisfy any unpaid fines and costs of prosecution. “Unless a court ordered payment
     schedule is implemented, the clerk of the court may add to any judgment a delinquency
     amount equal to 5% of the unpaid fines, costs, fees, and penalties that remain unpaid after 30
     days.” Id. Unpaid fines and fees may also be the subject of collection actions initiated by the

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       State’s Attorney, which entail a 30% surcharge plus 9% interest on the unpaid amount (730
       ILCS 5/5-9-3(e) (West 2016)), and unpaid fines carry with them the threat of imprisonment
       for an intentional refusal to pay (id. § 5-9-3(b) (up to six months for nonpayment of a felony
       fine and a maximum of 30 days for nonpayment of a misdemeanor fine)).
¶ 10        This court has previously noted Illinois’s labyrinthine system of criminal fines and fees.
       See Grigorov, 2017 IL App (1st) 143274, ¶ 19; People v. Johnson, 2015 IL App (3d) 140364,
       ¶ 11 (calculation of fines and fees “has become a very complex process”); People v.
       Williams, 2013 IL App (4th) 120313, ¶ 25; People v. Folks, 406 Ill. App. 3d 300, 308 (2010)
       (referring to “morass of fines, fees, and costs created by the legislature”); see also Statutory
       Court Fee Task Force, Illinois Court Assessments: Findings and Recommendations for
       Addressing Barriers to Access to Justice and Additional Issues Associated With Fees and
       Other Court Costs in Civil, Criminal, and Traffic Proceedings 7 (June 1, 2016),
       http://www.illinoiscourts.gov/2016_Statutory_Court_Fee_Task_Force_Report.pdf (“Over the
       years, more and more costs have been passed on to court patrons through an elaborate web of
       fees and fines that are next to impossible to decipher and severely lacking in uniformity and
       transparency.”). The current fines and fees order used in the circuit court of Cook County
       contains more than 90 categories of assessments, divided into categories of (i) fines offset by
       the presentence credit, (ii) fines that, by statute, are not offset by the presentence credit, and
       (iii) fees and costs not offset by the presentence credit. The enormous amount of attorney and
       judicial time and energy devoted to fines and fees issues undoubtedly dwarfs the collection
       rate (see People v. Rexroad, 2013 IL App (4th) 110981, ¶ 56), although we are unaware of
       any study undertaken to determine what percentage of assessed fines and fees is actually
       collected. Add to that the failure of the Clerk of the Circuit Court of Cook County to change
       the fines and fees order to reflect years of consistent decisions from this court that have
       repeatedly determined that certain assessments categorized as fees on that form are, in fact,
       fines as to which defendants are entitled to presentence credit, and you have a recipe for
       limitless reinvention of the wheel. See, e.g., People v. Blanchard, 2015 IL App (1st) 132281,
       ¶ 22 (court system fee is actually a fine); People v. Smith, 2013 IL App (2d) 120691, ¶ 21
       (court system fee deemed a fine as it is “not intended or geared to compensate the State (or
       the county) for the cost of prosecuting a defendant”); People v. Maxey, 2016 IL App (1st)
       130698, ¶ 141 (defendant entitled to credit against state police operations fee), vacated on
       other grounds, No. 121137 (Ill. Nov. 22, 2017) (supervisory order); People v. Millsap, 2012
       IL App (4th) 110668, ¶ 31 (state police operations fee deemed a fine for the same reason
       articulated in Smith). And the State regularly concedes these errors, although not typically
       until the matter is fully briefed. Of course, despite the inaccuracies in the clerk’s form, the
       parties, as noted, could easily stipulate to presentence credit against these assessments.
¶ 11        Although the law applicable to the issues presented in this appeal is well settled, we are
       nevertheless publishing this decision as an opinion to call attention to this needless waste of
       scarce resources. We are also sending a copy of the decision to Kim Foxx, the State’s
       Attorney of Cook County; James E. Chadd, the State Appellate Defender; Amy Campanelli,
       the Cook County Public Defender; and Dorothy Brown, Clerk of the Circuit Court of Cook
       County.
¶ 12        On the merits, the parties correctly agree that the $5 electronic citation fee (705 ILCS
       105/27.3e (West 2014)) and $250 state DNA identification system fee (730 ILCS 5/5-4-3(j)
       (West 2014)) must be vacated. The electronic citation fee does not apply to felonies and is,

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       therefore, inapplicable to Smith’s felony conviction for burglary. See People v. Robinson,
       2015 IL App (1st) 130837, ¶ 115. The DNA fee was improperly assessed, as Smith’s DNA is
       already in the Illinois database as a result of his prior 2003 felony conviction. People v.
       Marshall, 242 Ill. 2d 285, 303 (2011) (fee authorized only when the defendant is not
       registered in the DNA database); People v. Leach, 2011 IL App (1st) 090339, ¶ 38 (to vacate
       DNA identification system fee, defendant need only show that he was convicted of a felony
       after the DNA requirement went into effect on January 1, 1998). These particular errors recur
       in countless cases, and frankly, we do not understand why.
¶ 13       As defendants have in dozens of other cases, Smith next claims that eight other charges,
       despite their denomination as fees, are fines that should be offset by presentence credit. A
       “fine” is “part of the punishment for a conviction,” whereas a “fee” is assessed to “recoup
       expenses incurred by the state—to ‘compensat[e]’ the state for some expenditure incurred in
       prosecuting the defendant.” People v. Jones, 223 Ill. 2d 569, 582 (2006). Even if a statute
       labels a charge as a “fee,” it may still be considered to be a “fine.” Id. at 599. Smith spent
       211 days in presentence custody and is, therefore, entitled to up to $1055 in presentence
       custody credit.
¶ 14       Smith contends, and the State correctly concedes, that his $50 court system fee (55 ILCS
       5/5-1101(c)(1) (West 2014)) and $15 state police operations fee (705 ILCS 105/27.3a(1.5)
       (West 2014)) should be offset by presentence credit. People v. Ackerman, 2014 IL App (3d)
       120585, ¶ 30 (concluding that the court systems fee is actually a fine); Millsap, 2012 IL App
       (4th) 110668, ¶ 31 (“the State Police operations assistance fee is also a fine”).
¶ 15       Next, Smith contends that the $190 felony complaint filing fee (705 ILCS
       105/27.2a(w)(1)(A) (West 2014)), the $15 automation fee (id. § 27.3a(1), (1.5)), the $15
       document storage fee (id. § 27.3c(a)), and the $25 court services fee (55 ILCS 5/5-1103
       (West 2014)) are all fines subject to presentence incarceration credit. This court has already
       considered challenges to these assessments and found that they are fees, as they “are
       compensatory and a collateral consequence of defendant’s conviction.” Tolliver, 363 Ill.
       App. 3d at 97. These charges represent part of the costs incurred for prosecuting a defendant
       and are, therefore, not fines subject to offsetting presentence custody credit. See People v.
       Graves, 235 Ill. 2d 244, 250 (2009); Tolliver, 363 Ill. App. 3d at 97.
¶ 16       Similarly, Smith is not entitled to presentence custody credit against the $2 Public
       Defender Records Automation Fund fee (55 ILCS 5/3-4012 (West 2014)) and $2 State’s
       Attorney Records Automation Fund fee (id. § 4-2002.1(c)). “[T]he bulk of legal authority has
       concluded that both assessments are fees rather than fines because they are designed to
       compensate those organizations for the expenses they incur in updating their automated
       record-keeping systems while prosecuting and defending criminal defendants.” People v.
       Brown, 2017 IL App (1st) 150146, ¶ 38 (collecting cases). See contra People v. Camacho,
       2016 IL App (1st) 140604, ¶¶ 47-56 (finding the assessments are fines, not fees).
¶ 17       For the reasons set forth above, we vacate the $5 electronic citation fee and the $250 state
       DNA identification system fee and find that the $50 court system fee and $15 state police
       operations fee are offset by presentence credit. We remand and direct the trial court to
       modify the fines, fees, and costs order accordingly. The judgment of the circuit court is
       affirmed in all other respects.



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¶ 18      Affirmed as modified; remanded with directions.

¶ 19       PRESIDING JUSTICE NEVILLE, concurring in part and dissenting in part:
¶ 20       I concur in the majority’s decision, with the exception of the issue relating to the $2
       state’s attorney and public defender records automation fees. I have previously concluded
       that these assessments are fines as to which a defendant is entitled to presentence custody
       credit. People v. Camacho, 2016 IL App (1st) 140604, ¶¶ 44-56. Accordingly, on that issue, I
       respectfully dissent.




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