                                         2019 IL App (1st) 153155
                                             No. 1-15-3155
                                      Opinion filed January 22, 2019
                                                                      Second Division
     ______________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             FIRST DISTRICT

     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS,                  )     Appeal from the Circuit Court
                                                           )     of Cook County.
            Plaintiff-Appellee,                            )
                                                           )     No. 14 CR 11289
     v. 	                                                  )

                                                           )     The Honorable

     JODIE CHRISTIAN,                                      )     Charles P. Burns

                                                           )     Judge, presiding.
            Defendant-Appellant.                           )

     ______________________________________________________________________________

            JUSTICE HYMAN delivered the judgment of the court, with opinion. 

            Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion. 


                                                  OPINION

¶1          Defendant Jodie Christian was found guilty of two counts of aggravated criminal sexual

     abuse and sentenced to concurrent terms of four years and six months in prison. The conviction

     stems from the sexual assault of a 14-year-old victim in January 2014, when Christian was 38

     years old. Section 3 of the Sex Offender Registration Act (Registration Act) required Christian to

     register as a sex offender. 730 ILCS 150/3 (West 2014).

¶2          Christian does not challenge the sufficiency of the evidence against him or his sentence.

     Instead, he claims the Registration Act violates his constitutional rights to due process and to be

     free from disproportionate penalties. Christian also contends he is entitled to seven additional
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     days of sentencing credit. Finally, Christian argues his fines and fees order should be amended

     by vacating one fee and applying monetary credit against several other assessments.

¶3          Based on the Illinois Supreme Court’s holding in People v. Bingham, 2018 IL 122008,

     we dismiss Christian’s constitutional claims. We vacate the $5 electronic citation fee, give

     Christian presentence custody credit for the $15 state police operations fee, and find, based on

     our supreme court’s holding in People v. Clark, 2018 IL 122495, and longstanding appellate

     court precedent, that all other assessments are fees not fines and are not subject to presentence

     custody credit. We direct the clerk of the circuit court to correct the fines and fees order

     accordingly.

¶4                                            BACKGROUND

¶5          Christian was charged with one count of criminal sexual assault and seven counts of

     aggravated sexual abuse of a 14-year-old high school freshman. He opted for a bench trial. After

     the testimony at trial, Christian moved for a directed finding. The trial court granted the motion

     as to all counts with a caretaker element and denied it as to all other counts. Christian rested and

     after hearing arguments, the trial court found Christian guilty of two counts of aggravated

     criminal sexual abuse, based on a January 2014 incident. Christian filed a motion for a new trial,

     which the trial court denied.

¶6          The trial court sentenced Christian to two concurrent terms of four and a half years in

     prison. Christian received presentence custody credit of 102 days. He was assessed $409 in fines

     and fees and given an $80 credit, for a total owed of $329. The trial court also gave him two

     years of mandatory supervised release.




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¶7                                               ANALYSIS

¶8                                    Sexual Offender Registration Act

¶9            Christian contends the Registration Act (730 ILCS 150/1 et seq. (West 2014)) violates his

       substantive and procedural due process rights and is punitive and violates proportionate

       penalties. Specifically, as to substantive due process, he argues the Registration Act infringes on

       his fundamental liberty and does not rationally advance the goal of protecting the public from

       recidivist offenders. He also argues the Registration Act violates procedural due process by

       failing to accord defendants a reasonable individualized assessment before depriving them of

       their liberty. Lastly, he contends the punishment imposed by the Registration Act is punitive and

       violates the cruel and unusual clause and proportionate penalty clause of the Illinois and United

       States Constitutions.

¶ 10          After briefing, the State obtained leave to cite as additional authority the Illinois Supreme

       Court’s decision in Bingham, 2018 IL 122008. In Bingham, the Illinois Supreme Court answered

       whether a reviewing court has the power on direct appeal of a criminal conviction to order that a

       defendant be relieved of his or her obligation to register as a sex offender. In Bingham, the

       defendant was convicted of felony theft and sentenced to three years in prison. Id. ¶ 1. The

       defendant had a prior conviction for a 1983 attempted criminal sexual assault, but he was not

       required to register as a sex offender at that time because the conviction occurred before the 1986

       enactment of the Registration Act. Id. Under section 3(c)(2.1) of the Registration Act, as

       amended in 2011, the defendant’s felony conviction triggered a requirement that he register as a

       sex offender based on his 1983 conviction for attempted criminal sexual assault. Id.

¶ 11          Before the appellate court, the defendant argued that the Registration Act’s registration

       requirement was unconstitutional as applied to him on due process grounds and that it violated


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        the ex post facto clauses of the United States and Illinois Constitutions. Id. ¶ 2. The appellate

        court addressed the merits of the defendant’s claims and rejected them, upholding the

        Registration Act’s constitutionality. Id.

¶ 12           The supreme court, however, vacated that part of the appellate court’s opinion addressing

        the registration requirement’s constitutionality. Id. ¶ 3. The court noted that under Illinois

        Supreme Court Rule 615(b) (eff. Jan. 1, 1967), the scope of appellate review depends on the trial

        court’s judgment and the proceedings and orders related to it. In criminal cases, “[a] notice of

        appeal confers jurisdiction on an appellate court to consider only the judgments or parts of

        judgments specified in the notice.” (Emphasis and internal quotation marks omitted.) Bingham,

        2018 IL 122008, ¶ 16. Specifically, Rule 615(b) permits a reviewing court to “(1) reverse, affirm,

        or modify the judgment or order from which the appeal is taken; (2) set aside, affirm, or modify

        any or all of the proceedings subsequent to or dependent upon the judgment or order from which

        the appeal is taken; (3) reduce the degree of the offense of which the appellant was convicted;

        (4) reduce the punishment imposed by the trial court; or (5) order a new trial.” Ill. S. Ct. R.

        615(b) (eff. Jan. 1, 1967).

¶ 13	          The supreme court determined that the appellate court had not been called on to exercise

        its delineated powers regarding the defendant’s argument that sex offender registration is

        unconstitutional as applied to him. Bingham, 2018 IL 122008, ¶ 17. “The requirement that

        defendant register as a sex offender is not encompassed within the judgment or any order of the

        trial court. Thus, defendant’s argument did not ask a reviewing court to reverse, affirm, or

        modify the judgment or order from which the appeal is taken. Nor did it ask to set aside or

        modify any ‘proceedings subsequent to or dependent upon the judgment or order from which the




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       appeal is taken.’ Ill. S. Ct. R. 615(b)(2) (eff. Jan. 1, 1967). The requirement that defendant

       register as a sex offender cannot be fairly characterized as a ‘proceeding.’ ” Id.

¶ 14          Even if, as the defendant contends, the requirement to register is “ ‘punishment,’ ” “it

       would not be ‘punishment imposed by the trial court.’ ” Id. ¶ 18. “[A] reviewing court has no

       power on direct appeal of a criminal conviction to order that defendant be relieved of the

       obligation to register as a sex offender when there is neither an obligation to register imposed by

       the trial court nor an order or conviction that the defendant is appealing that is directly related to

       the obligation or the failure to register.” Id. “A contrary rule,” concluded the unanimous opinion,

       would open appeals of collateral issues on direct appeal to slew of collateral consequences of

       criminal convictions that are neither imposed by trial courts nor contained in their judgments. Id.

       ¶ 19. Those consequences would include “ ‘the loss of the right to vote, disqualification from

       public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces,

       and loss of business or professional licenses.’ ” Id. (quoting Padilla v. Kentucky, 559 U.S. 356,

       376 (2010) (Alito, J., concurring, joined by Roberts, C.J.)).

¶ 15          “Allowing defendants to challenge the collateral consequences of a conviction on direct

       appeal would place a reviewing court in the position of ruling on the validity (or resolving the

       details) of regulatory programs administered by state agencies and officials that are not parties to

       the action.” Id. Instead, the supreme court explained that these kind of constitutional issues

       involved can be brought before “a reviewing court *** (1) through a direct appeal from a case

       finding a defendant guilty of violating the regulation he [or she] attempts to challenge as

       unconstitutional, such as the sex offender registration law (see, e.g., People v. Minnis, 2016 IL

       119563, ¶¶ 13-17), or (2) by filing a civil suit seeking a declaration of unconstitutionality and

       relief from the classification as well as the burdens of sex offender registration.” Id. ¶ 21.


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¶ 16           In sum, “because an as-applied constitutional challenge may not be raised where it is

       litigated for the first time on review, we vacate the portion of the appellate court’s judgment that

       addressed defendant’s constitutional claims on the merits.” Id. ¶ 25.

¶ 17           The trial court’s order sentencing Christian to four and a half years in prison does not

       require him to register as a sex offender under the Registration Act. Thus, as in Bingham,

       Christian’s constitutional challenges to the Registration Act are beyond the scope of our power to

       grant relief under Illinois Supreme Court rule 615(b) (eff. Jan. 1, 1967). We dismiss that portion

       of the appeal.

¶ 18                                              Sentencing Credit

¶ 19           Christian contends, and the State agrees, that, a clerical error on the monetary order

       should be corrected to indicate that he spent 109 days, not 102 days, in presentencing custody.

       We agree, and under Illinois Supreme Court Rule 615(b)(1) (eff. Jan. 1, 1967), direct the clerk of

       the circuit court to so correct the mittimus.

¶ 20                                               Fines and Fees

¶ 21           Christian argues we should correct his fines and fees order to vacate an improperly

       imposed fee and to apply presentence monetary credit against several assessments that are

       labeled as fees, but are actually fines.

¶ 22           Christian concedes he did not preserve these issues by raising them to the trial court. See

       People v. Hillier, 237 Ill. 2d 539, 544 (2010) (“It is well settled that, to preserve a claim of

       sentencing error, both a contemporaneous objection and a written postsentencing motion raising

       the issue are required.”). But, he argues, we may review the issues under plain error or Rule

       615(b). The State acknowledges the forfeiture, but agrees that we may review these claims for

       the first time on appeal. Because the State does not argue Christian forfeited review, the State has


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       waived arguing forfeiture. See People v. Reed, 2016 IL App (1st) 140498, ¶ 13 (“the rules of

       waiver and forfeiture are also applicable to the State”). While we disagree that plain error or

       Rule 615(b) provide avenues for review of these forfeited issues (People v. Grigorov, 2017 IL

       App (1st) 143274, ¶ 14; People v. Griffin, 2017 IL App (1st) 143800, ¶ 9, appeal allowed, No.

       122549 (Ill. Nov. 22, 2017)), we will review Christian’s claims. We review the propriety of a

       trial court’s imposition of fines and fees de novo. People v. Bryant, 2016 IL App (1st) 140421,

       ¶ 22.

¶ 23           The parties agree—and we concur—that the $5 electronic citation fee (705 ILCS

       105/27.3e (West 2014)) must be vacated as it applies only to traffic, misdemeanor, municipal

       ordinance, and conservation violations, and not a felony offense. Under Illinois Supreme Court

       Rule 615(b)(1) (eff. Jan. 1, 1967), we may modify a fines and fee order without remand. See

       People v. McGee, 2015 IL App (1st) 130367, ¶ 82 (ordering circuit court clerk to correct fines

       and fees order). We therefore vacate the $5 electronic citation fee.

¶ 24           Christian also contends he is due monetary credit against several other “fees” that are

       actually “fines.” Under section 110-14 of the Code of Criminal Procedure of 1963 (Code) (725

       ILCS 5/110-14 (West 2014)), a defendant is entitled to a credit applied against fines of $5 for

       each day spent in presentence custody. The credit under section 110-14 can only be applied to

       offset fines, not fees. People v. Jones, 223 Ill. 2d 569, 580 (2006). To decide whether an

       assessment is a fine or a fee, we consider the nature of the assessment rather than its statutory

       label. People v. Graves, 235 Ill. 2d 244, 250 (2009). Our supreme court has defined a “fine” as

       “punitive in nature” and “a pecuniary punishment imposed as part of a sentence on a person

       convicted of a criminal offense.” (Internal quotation marks omitted.) Id. (quoting Jones, 223 Ill.

       2d at 581). A “fee” on the other, is “a charge that ‘seeks to recoup expenses incurred by the



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       state,’ or to compensate the state for some expenditure incurred in prosecuting the defendant.”

       Id. (quoting Jones, 223 Ill. 2d at 582).

¶ 25          The parties correctly agree that Christian is due full credit for the $15 state police

       operations fee (705 ILCS 105/27.3a(1.5) (West 2016)). Although this charge is labeled a fee, we

       have held it to be a fine because it does not compensate the State for expenses incurred in

       prosecution of a defendant. Accordingly, the charge is subject to offset by the monetary

       sentencing credit. People v. Wynn, 2013 IL App (2d) 120575, ¶¶ 13, 17. Thus, the $15 state

       police operations assessment must be offset by Christian’s presentence custody credit.

¶ 26          Christian also argues he is entitled to presentence custody credit to be applied toward (i)

       the $190 felony complaint filing fee (705 ILCS 105/27.2a(w)(1)(A) (West 2014)), (ii) the $15

       circuit clerk automation fee (id. § 27.3a(1)), and (iii) the $15 circuit court clerk document storage

       fee (id. § 27.3c(a)). In considering similar challenges to these assessments, we held they are fees

       because they are “ ‘compensatory’ ” and represent a “ ‘collateral consequence’ ” of a defendant’s

       conviction. People v. Brown, 2017 IL App (1st) 150146, ¶ 39 (quoting People v. Tolliver, 363 Ill.

       App. 3d 94, 97 (2006)); People v. Smith, 2018 IL App (1st) 151402, ¶ 15. Our supreme court

       recently affirmed that conclusion, finding those assessments are fees and not subject to

       presentence custody credit. Clark, 2018 IL 122495, ¶ 51.

¶ 27          Christian also contends the $25 court service fee (55 ILCS 5/5-1103 (West 2014)) is a

       fine subject to $5 per day presentence custody credit. We have consistently held that this fee is

       “ ‘compensatory and a collateral consequence of defendant’s conviction’ ” and thus, not subject

       to presentence custody credit. Smith, 2018 IL App (1st) 151402, ¶ 15 (quoting Tolliver, 363 Ill.

       App. 3d at 97).




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¶ 28          Christian next contends he is entitled to credit against the $2 State’s Attorney records

       automation fee (55 ILCS 5/4-2002.1(c) (West 2014)) and the $2 Public Defender records

       automation fee (55 ILCS 5/3-4012 (West 2014)). Christian relies on People v. Camacho, 2016 IL

       App (1st) 140604. In Camacho, we held that the $2 Public Defender and $2 State’s Attorney

       records automation assessments were fines because (i) the public defender assessment may be

       imposed against any guilty defendant, regardless of whether or not he or she was represented by

       the public defender, and (ii) the costs associated with developing and maintaining automated

       record keeping systems for those offices were not related to the prosecution of a specific

       defendant. Id. ¶¶ 50-51.

¶ 29          In Clark, our supreme court overruled Camacho, holding that both assessments are fees

       rather than fines. The court noted that the public defender’s office is “vital and necessary part of

       the criminal justice system” because the “State could not effectively prosecute criminal

       defendants without the existence of an indigent defense system.” Clark, 2018 IL 122495, ¶ 21

       (citing Gideon v. Wainwright, 372 U.S. 335, 345 (1963)). Maintaining that office “is a cost

       common to all prosecutions, regardless of whether or not a particular defendant has or finds

       resources to hire private counsel.” Id. Because the public defender’s office is “necessary to every

       prosecution and automating records is a cost necessary to that office, automating records is a cost

       ‘incurred as the result of prosecuting the defendant.’ ” Id. ¶ 22 (quoting Graves, 235 Ill. 2d at

       250). Thus, the $2 Public Defender records automation fee is a compensatory fee and not a fine.

¶ 30          The court applied similar reasoning in finding the $2 State’s Attorney records automation

       fee is a fee and not a fine, noting that “[e]very prosecution *** involves the state’s attorney and

       necessarily generates records, which must be automated.” Id. ¶ 27. “[A]utomating the state’s

       attorney’s record keeping system is a cost related to prosecuting defendants, and this charge is a


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       compensatory fee” not subject to presentence credit. Id. Thus, based on Clark, Christian is not

       entitled to presentence custody credit for the $2 State’s Attorney and Public Defender records

       automation fees.

¶ 31          In sum, we vacate the $5 electronic citation and give Christian presentence custody credit

       for the $15 state police operations fee. We find all other assessments are fees not fines, and

       therefore are not subject to presentence custody credit. We direct the clerk of the circuit court to

       correct the fines and fees order accordingly.

¶ 32          Appeal dismissed in part; mittimus corrected; fines and fees order corrected.




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