                                                                                  FILED

                                                                                  May 16, 2018

                                   2018 IL App (4th) 150871                       Carla Bender

                                                                              4th District Appellate

                                         NO. 4-15-0871                              Court, IL

                                IN THE APPELLATE COURT

                                         OF ILLINOIS

                                      FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                      )       Appeal from

             Plaintiff-Appellee,                           )       Circuit Court of

             v.                                            )       Champaign County

 JEREMI R. STEVENS,                                        )       No. 15CF48

             Defendant-Appellant.	                         )
                                                           )       Honorable

                                                           )       Thomas J. Difanis, 

                                                           )       Judge Presiding.



               JUSTICE DeARMOND delivered the judgment of the court, with opinion.
               Justices Steigmann and Turner concurred in the judgment and opinion.

                                           OPINION
¶1             In January 2015, defendant, Jeremi R. Stevens, was arrested and charged with

aggravated unlawful use of a weapon. In July 2015, a jury found defendant guilty. At the

September 2015 sentencing hearing, the trial court sentenced defendant to 24 months of

probation.

¶2             On appeal, defendant argues (1) his conviction is void due to the Firearm

Concealed Carry Act (Act) (430 ILCS 66/1 to 999 (West 2014)) being facially unconstitutional,

(2) he was denied effective assistance of counsel due to counsel’s failure to object to the

videotape of defendant’s arrest in a motion in limine hearing, (3) he was denied effective

assistance of counsel due to counsel’s failure to object to testimonial hearsay, and (4) his fines

imposed by the circuit clerk should be vacated. We affirm in part and vacate in part.
¶3                                    I. BACKGROUND

¶4             In January 2015, defendant was driving westbound on Interstate 74 in the right

lane when he cut in front of a semitruck in the left lane and became boxed in between two

semitrucks. The driver in the truck behind defendant honked at him because the driver believed

there was not enough room to fit in between the two trucks. Upon hearing the honk, defendant

reached into his glove compartment and pulled out a handgun and waved it inside the car,

showing the semitruck driver. The driver called the police, and defendant was arrested.

¶5             The State alleged defendant committed the crime of aggravated unlawful use of a

weapon when he knowingly carried in his vehicle a firearm at a time when he was not on his

own land, in his own abode, or in his own fixed place of business and that firearm was uncased,

loaded, and immediately accessible and defendant had not been issued a currently valid license

under the Act (count 1) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014)). The State also

alleged defendant committed the crime of aggravated unlawful use of a weapon when he

knowingly carried in any vehicle a firearm at a time when he was not on his own land, in his own

abode, or in his own fixed place of business and he was engaged in, or attempting the

commission of, a misdemeanor involving the use or threat of violence against the person or

property of another, namely aggravated battery, in that he, while traveling along Interstate 74,

pointed a Smith and Wesson .40-caliber handgun in the direction of a vehicle, placing the

passengers of the vehicle in reasonable apprehension of receiving a battery (count II) (720 ILCS

5/24-1.6(a)(1), (a)(3)(H) (West 2014)).

¶6             The State filed a motion in limine to admit a certified document from the Illinois

State Police Firearm Services Bureau, which stated defendant had a valid Firearm Owner’s

Identification (FOID) card but not a concealed carry license. Defense counsel did not object to



                                              -2­
the admission of the document, reserving his right to object on relevance grounds, and the

document was admitted.

¶7             In July 2015, a jury trial commenced. At the conclusion of the trial, during the

jury instruction conference, the trial judge dismissed count II because the State failed to present

evidence defendant pointed the gun at anyone. The jury found defendant guilty on count I. In a

September 2015 sentencing hearing, the judge sentenced defendant to 24 months of probation

and assessed fines payable during the first 12 months of his probation.

¶8             This appeal followed. At oral arguments, the parties requested an opportunity to

file supplemental briefs, and the court granted the request.



¶9                                        II. ANALYSIS

¶ 10                              A. Constitutionality of the Act

¶ 11           Defendant argues his conviction, pursuant to sections 24-1.6(a)(1) and (a)(3)(A-5)

of the Criminal Code of 2012 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2014)), is void

because the Act is facially unconstitutional. We disagree.

¶ 12           The second amendment of the United States Constitution states “[a] well

regulated Militia, being necessary to the security of a free State, the right of the people to keep

and bear Arms, shall not be infringed.” U.S. Const., amend. II. In District of Columbia v. Heller,

554 U.S. 570, 592 (2008), the United States Supreme Court held the second amendment

“guarantee[s] the individual right to possess and carry weapons in case of confrontation.” “[I]f a

Bill of Rights guarantee is fundamental from an American perspective ***, that guarantee is

fully binding on the States and thus limits (but by no means eliminates) their ability to devise




                                                -3­
solutions to social problems that suit local needs and values.” (Emphasis in original.) McDonald

v. City of Chicago, 561 U.S. 742, 784-85 (2010).

¶ 13           When determining the level of scrutiny that should apply to second amendment

cases, federal circuit courts have looked to the first amendment as a guide. See Ezell v. City of

Chicago, 651 F.3d 684, 703 (7th Cir. 2011). The court must determine “how close the law comes

to the core of the Second Amendment right and the severity of the law’s burden on the right.”

Ezell, 651 F.3d at 703. “[T]he Supreme Court’s First Amendment fee jurisprudence provides the

appropriate foundation for addressing *** fee claims under the Second Amendment.” Kwong v.

Bloomberg, 723 F.3d 160, 165 (2d Cir. 2013).

¶ 14           In the first amendment context, the Supreme Court has held governmental entities

may impose licensing fees when they are designed “ ‘to meet the expense incident to the

administration of the [licensing statute] and to the maintenance of public order in the matter

licensed.’ ” Cox v. New Hampshire, 312 U.S. 569, 577 (1941). “Put another way, imposing fees

on the exercise of constitutional rights is permissible when the fees are designed to defray (and

do not exceed) the administrative costs of regulating the protected activity.” Kwong, 723 F.3d at

165. The licensing fee must serve “the legitimate purpose of defraying the expenses incident to

the administration and enforcement” of the licensing statute. National Awareness Foundation v.

Abrams, 50 F.3d 1159, 1166 (2d Cir. 1995).

¶ 15           “[A] challenge to the constitutionality of a criminal statute may be raised at any

time.” People v. Wright, 194 Ill. 2d 1, 23, 740 N.E.2d 755, 766 (2000). “Statutes are presumed

constitutional, and the party challenging a statute has the burden of establishing a clear

constitutional violation.” People v. One 1998 GMC, 2011 IL 110236, ¶ 20, 960 N.E.2d 1071. A

reviewing court “will affirm a statute’s constitutionality if the statute is reasonably capable of



                                               -4­
such an interpretation.” People v. Johnson, 225 Ill. 2d 573, 584, 870 N.E.2d 415, 421 (2007).

“[W]e will resolve any doubt on the construction of a statute in favor of its validity.” People v.

Boeckmann, 238 Ill. 2d 1, 6-7, 932 N.E.2d 998, 1001 (2010). “Moreover, a challenge to the

facial validity of a statute is the most difficult challenge to mount successfully because an

enactment is invalid on its face only if no set of circumstances exists under which it would be

valid.” One 1998 GMC, 2011 IL 110236, ¶ 20. This effectively means the specific facts of the

case are irrelevant to a facial challenge. “[T]he specific facts related to the challenging party are

irrelevant.” People v. Thompson, 2015 IL 118151, ¶ 36, 43 N.E.3d 984. “The constitutionality of

a statute is a question of law that we review de novo.” People v. Aguilar, 2013 IL 112116, ¶ 15, 2

N.E.3d 321.

¶ 16           Under the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6 (West

2014)), residents and nonresidents are required to have a currently valid license under the Act if

they seek to carry a weapon in any vehicle. Defendant argues the licensing fee of the Act is

unconstitutional because it is allocated to funds with no relation to the administration of the

licensing statute. We disagree.

¶ 17           For nonresidents, like defendant, the State of Illinois charges a $300 fee for a

concealed carry license, of which $250 is apportioned to the State Police Firearm Services Fund,

$40 is apportioned to the Mental Health Reporting Fund, and $10 is apportioned to the State

Crime Laboratory Fund. 430 ILCS 66/60(c) (West 2014).

¶ 18           The State Police Firearm Services Fund is a special fund created to receive

“revenue under the Firearm Concealed Carry Act and Section 5 of the Firearm Owners

Identification Card Act.” 20 ILCS 2605/2605-595(a) (West 2014). The statute states as follows:




                                                -5­
              “The Department of State Police may use moneys in the Fund to

              finance any of its lawful purposes, mandates, functions, and duties

              under the Firearm Owners Identification Card Act and the Firearm

              Concealed Carry Act, including the cost of sending notices of

              expiration of Firearm Owner’s Identification Cards, concealed

              carry licenses, the prompt and efficient processing of applications

              under the Firearm Owners Identification Card Act and the Firearm

              Concealed Carry Act, the improved efficiency and reporting of the

              LEADS and federal NICS law enforcement data systems, and

              support for investigations required under these Acts and law. Any

              surplus funds beyond what is needed to comply with the

              aforementioned purposes shall be used by the Department to

              improve the Law Enforcement Agencies Data System (LEADS)

              and criminal history background check system.” 20 ILCS

              2605/2605-595(b) (West 2014).

¶ 19          The Mental Health Reporting Fund is also a special fund which receives “revenue

under the Firearm Concealed Carry Act.” 30 ILCS 105/6z-99(a) (West 2014). The statute

provides as follows:

              “The Department of State Police and Department of Human

              Services shall coordinate to use moneys in the Fund to finance

              their respective duties of collecting and reporting data on mental

              health records and ensuring that mental health firearm possession

              prohibitors are enforced as set forth under the Firearm Concealed



                                             -6­
               Carry Act and the Firearm Owners Identification Card Act. Any

               surplus in the Fund beyond what is necessary to ensure compliance

               with mental health reporting under these Acts shall be used by the

               Department of Human Services for mental health treatment

               programs.” 30 ILCS 105/6z-99(b) (West 2014).

¶ 20           The State Crime Laboratory Fund uses its revenue for purposes that include, but

are not limited to, the following:

                       “(1) costs incurred in providing analysis for controlled

               substances in connection with criminal investigations conducted

               within this State;

                       (2) purchase and maintenance of equipment for use in

               performing analyses; and

                       (3) continuing education,     training and    professional

               development of forensic scientists regularly employed by these

               laboratories.” 730 ILCS 5/5-9-1.4(g)(1)-(3) (West 2014).

¶ 21           The State Police Services Fund provides for sending notices of expiration for

concealed carry licenses and improving efficiency in both local and federal criminal

fingerprinting databases, which determines eligibility for concealed carry licenses by assessing

an applicant’s criminal history. 430 ILCS 66/35 (West 2014). The Mental Health Reporting Fund

is responsible for reporting mental health records and allows the Department of Human Services

to investigate an applicant’s mental health and developmental disabilities. 430 ILCS 66/35 (West

2014). The State Crime Laboratory Fund is used to educate and train forensic scientists who may

test ballistics, conduct firearm functionality tests, gunshot residue, DNA analyses, or other



                                              -7­
evidence useful in gun cases. 730 ILCS 5/5-9-1.4(g)(3) (West 2014). The above funds either

cover the administrative costs for the licensing scheme, the enforcement of the scheme, or relate

to the overarching public interest in the management of lawful firearm ownership, which

complies with the Supreme Court’s fee jurisprudence. See Cox, 312 U.S. at 577; see also

National Awareness Foundation, 50 F.3d at 1166. The party challenging the constitutionality of

a statute has the burden of clearly establishing a constitutional violation. Davis v. Brown, 221 Ill.

2d 435, 442, 851 N.E.2d 1198, 1203 (2006). Defendant has presented no evidence the licensing

scheme charges more than is necessary for the administration of the licensing statute and

maintenance of public order in the matter licensed. Cox, 312 U.S. at 577. Defendant cannot

simply shift the burden of research and proof to this court, as it is his burden alone to overcome

the presumption of constitutionality. See People v. Rizzo, 2016 IL 118599, ¶ 48, 61 N.E.3d 92.

As defendant has failed to meet his burden, the Act does not violate the United States

Constitution.



¶ 22                           B. Ineffective Assistance of Counsel

¶ 23            A defendant’s claim of ineffective assistance of counsel is analyzed under the

two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.

Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, “a defendant

must show both that counsel’s performance was deficient and that the deficient performance

prejudiced the defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203

(2010). To establish deficient performance, the defendant must show his attorney’s performance

fell below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219-20, 808

N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). “ ‘Effective assistance of counsel



                                                -8­
refers to competent, not perfect representation.’ ” Evans, 209 Ill. 2d at 220 (quoting People v.

Stewart, 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240 (1984)). Mistakes in trial strategy or

tactics do not necessarily render counsel’s representation defective. See People v. Benford, 349

Ill. App. 3d 721, 729-30, 812 N.E.2d 714, 721-22 (2004) (finding defense counsel’s decision not

to file a motion to suppress was a trial tactic and did not constitute ineffective assistance of

counsel).

¶ 24           To establish the second prong of Strickland, “[a] defendant establishes prejudice

by showing that, but for counsel’s unprofessional errors, there is a reasonable probability that the

result of the proceeding would have been different.” People v. Houston, 229 Ill. 2d 1, 4, 890

N.E.2d 424, 426 (2008). A “reasonable probability” has been defined as a probability which

would be sufficient to undermine confidence in the outcome of the trial. Houston, 229 Ill. 2d at

4. “A defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one of

the prongs precludes a finding of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25

N.E.3d 601.



¶ 25                         1. Admission of Defendant’s Statements

¶ 26           Defendant argues he received ineffective assistance of counsel because his

counsel did not know about a videotape or police report that memorialized defendant’s

admission he grabbed a gun, which restricted the effectiveness of his defense. We disagree.

¶ 27           While defense counsel stated in the posttrial hearing he did not receive the video

of defendant’s admission, there is no evidence his client did not inform him of the videotaped

statement he gave, acknowledging possession and removal of the gun from the glove box. Nor is

there any indication he did not receive a police report, which would have contained the same



                                               -9­
information. We note during a recess in trial, before admission of the tape, the State brought

defense counsel’s attention to the video and may have alerted him to the content of the video,

although it is not clear whether he was unaware of its contents. However, if the video was not

introduced, the arresting officer, who heard the statement, could have testified and did testify to

the same. Additionally, witnesses testified to seeing a gun waved in the car, and the officer

testified to finding a loaded handgun in the glove compartment. The testimony presented the

same evidence as the video, albeit from a different source. Defendant had to prove “but for

counsel’s unprofessional errors, there is a reasonable probability that the result of the proceeding

would have been different.” Houston, 229 Ill. 2d at 4. Counsel’s failure to observe the videotape

prior to trial, given the other evidence presented, simply does not meet that burden.

¶ 28            Defendant fails to point to any aspect of his defense which was somehow

hindered or impacted by counsel’s failure to observe his videotaped admission of possession of

the firearm. Defendant did not testify, which would have been a tactical decision made with his

input. In addition, defendant would have us believe he, at no time during preparation for trial,

discussed with counsel the fact he had given a videotaped statement to the police wherein he

acknowledged possession of the handgun. This is not the sort of evidence a defendant would be

likely to forget to mention to his trial counsel.

¶ 29            It is far more reasonable and likely to conclude the decision by defendant to forgo

testifying in his own defense was due to his knowledge of the existence of the taped admission,

which could have been used by the State to impeach his credibility should he have sought to

testify contrary to his admission.

¶ 30            Defendant’s assertion here is similar to the situation found in People v.

Rosenberg, 213 Ill. 2d 69, 820 N.E.2d 440 (2004). There, the defendant complained that,



                                                    - 10 ­
although he could have testified at a suppression hearing regarding his legitimate expectation of

privacy in boxes containing drugs, doing so would have precluded him from denying ownership

of the boxes at trial. This is because the suppression hearing testimony, although normally

inadmissible at trial, could have been used to impeach him. Our supreme court noted, “ ‘Every

criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that

privilege cannot be construed to include the right to commit perjury.’ ” Rosenberg, 213 Ill. 2d at

80 (quoting Harris v. New York, 401 U.S. 222, 225 (1971)).

¶ 31           Here, defendant appears to argue his attorney’s failure to view the videotaped

statement, in which the defendant was a participant, somehow affected his ability to present a

defense contrary to the statements previously recorded. Instead, defendant’s counsel successfully

attacked the ability of the witnesses to actually see what defendant was doing in his own vehicle,

thereby preventing the State from using the statements to impeach his client if he attempted to

testify otherwise and winning a dismissal of count II in the process.

¶ 32           This is not an ineffective defense; it was more likely the only defense available to

him short of perjury should he have attempted to testify otherwise.

¶ 33           Defendant’s counsel first raised the issue of the video, described to the trial court

its contents and noted his objection was one of completeness, not surprise. Counsel wanted the

other digital video discs played as well in order to establish the basis for his client’s presence on

the video intended to be played by the State. Whether he viewed the video before trial is not the

issue. He clearly knew about it, had been provided a police report mentioning it, and was likely

told about it by his own client.




                                               - 11 ­
¶ 34           2. Admission of the Certified Report on Defendant’s Gun License Status

¶ 35           Defendant argues he received ineffective assistance of counsel due to counsel’s

failure to object to the admission of a certified report, which stated defendant had not applied for

a concealed carry license, citing People v. Diggins, 2016 IL App (1st) 142088, 55 N.E.3d 227,

because it violated defendant’s right to confrontation. We disagree.

¶ 36           We first analyze whether the right to confrontation under the sixth amendment of

the United States Constitution was violated. The confrontation clause guarantees, “[i]n all

criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses

against him.” U.S. Const., amend. VI. “Admission of testimonial hearsay is error unless the

declarant is unavailable and the defendant has had a prior opportunity for cross-examination.”

People v. Leach, 2012 IL 111534, ¶ 140, 980 N.E.2d 570.

¶ 37           In Crawford v. Washington, 541 U.S. 36, 68 (2004), the Supreme Court held the

sixth amendment of the United States Constitution requires unavailability and prior opportunity

to cross-examine where testimonial hearsay is at issue. Violations of the right to confront a

witness are subject to harmless-error analysis. People v. Patterson, 217 Ill. 2d 407, 428, 841

N.E.2d 889, 901 (2005).

¶ 38           In the case before this court, the State sought to admit the certified report into

evidence through a motion in limine, citing Illinois Rules of Evidence 902(1) and (4) (eff. Jan. 1,

2011), which state the following:

               “Domestic Public Documents Under Seal. A document bearing a

               seal purporting to be that of the United States, or of any State,

               district, Commonwealth, territory, or insular possession thereof, or

               the Panama Canal Zone, or the Trust Territory of the Pacific



                                               - 12 ­
               Islands, or of a political subdivision, department, officer, or agency

               thereof, and a signature purporting to be an attestation or

               execution.

                                               ***

               *** Certified Copies of Public Records. A copy of an official

               record or report or entry therein, or of a document authorized by

               law to be recorded or filed and actually recorded or filed in a

               public office, including data compilations in any form, certified as

               correct by the custodian or other person authorized to make the

               certification, by certificate complying with paragraph (1), (2), or

               (3) of this rule or complying with any statute or rule prescribed by

               the Supreme Court.”

However, merely satisfying a hearsay exception is not enough for admission. See Crawford, 541

U.S. at 60-62 (holding the rule of satisfying a hearsay exception for admission set forth in Ohio

v. Roberts, 448 U.S. 56, 66 (1980), is overturned in regards to testimonial hearsay). As stated,

admission requires satisfying the hearsay exception, as well as witness unavailability and a prior

opportunity for cross-examination. Crawford, 541 U.S. at 68.

¶ 39           While defendant cites Diggins, we find People v. Cox, 2017 IL App (1st) 151536,

89 N.E.3d 898, is more on point. The court in Cox distinguished Diggins from the facts before it.

In Diggins, 2016 IL App (1st) 142088, ¶ 7, the defense counsel objected to the admission of a

certified letter into evidence. However, in Cox, the defense counsel did not object to the

admission of certification from a state employee, which stated the defendant did not have a FOID

card. Cox, 2017 IL App (1st) 151536, ¶ 83. Since the defense counsel did not object, he waived



                                               - 13 ­
the opportunity for prior cross-examination by the affirmative statement that he had no objection,

“even though it was clear that meant there would be no cross-examination prior to its

admission.” Cox, 2017 IL App (1st) 151536, ¶ 83.

¶ 40           Here, at the pretrial hearing, defense counsel did not object to the admission of the

certified report, only reserving an objection for relevance, and the trial court admitted the

document. While not argued by the State, we will, as the court in Cox did, engage in an invited-

error doctrine analysis. Cox, 2017 IL App (1st) 151536, ¶¶ 71-76.

¶ 41           “Simply stated, a party cannot complain of error which that party induced the

court to make or to which that party consented.” In re Detention of Swope, 213 Ill. 2d 210, 217,

821 N.E.2d 283, 287 (2004). “Moreover, when a defendant procures, invites, or acquiesces in the

admission of evidence, even though the evidence is improper, [he] cannot contest the admission

on appeal.” People v. Bush, 214 Ill. 2d 318, 332, 827 N.E.2d 455, 463 (2005). “The rationale

behind this well-established rule is that it would be manifestly unfair to allow a party a second

trial upon the basis of error which that party injected into the proceedings.” Swope, 213 Ill. 2d at

217.

¶ 42           Defendant had multiple opportunities to object to the admission of the certified

report. The first opportunity arose at the pretrial hearing, where defense counsel said he had no

objection to the admission. Again, at trial, defense counsel allowed the admission of the exhibit

without objection. If counsel had objected, the State could have cured the error at trial by calling

the official who created the document as a witness. See Bush, 214 Ill. 2d at 333. However,

defense counsel affirmatively waived his objection to the admission of the document on sixth

amendment confrontation clause grounds. See Cox, 2017 IL App (1st) 151536, ¶ 83.




                                               - 14 ­
¶ 43            Defendant contends trial counsel was ineffective for failing to object at the

pretrial hearing or trial. Prior to the admission of the certified report at trial, the arresting officer

testified defendant did not have a concealed carry license or apply for one but he had a FOID

card. After these statements, the certified document was entered without objection as a self-

authenticating document. Accordingly, the information was presented to the jury even without

the document. Additionally, there is nothing which could have prevented the State from calling

an authentication or foundation witness absent defendant’s acquiescence in the use of the

document. Barring some showing by defendant that such a witness was otherwise unavailable to

the State, the defendant fails to show how he was prejudiced. The burdens of production and

persuasion are on defendant, and courts do not presume the existence of either element. People v.

Ganus, 148 Ill. 2d 466, 477-78, 594 N.E.2d 211, 216-17 (1992) (Miller, C.J., specially

concurring). Therefore, defendant cannot meet the prejudice prong, and his argument of

ineffective assistance of counsel fails.

¶ 44            Defendant also contends the testimony by the arresting officer is hearsay.

Defendant notes the officer testified to checking and learning defendant did not have a concealed

carry license. Defendant claims there is no evidence indicating the officer had firsthand

knowledge defendant did not have a license. However, even if the statements were objectionable

hearsay, any error caused was invited by defense counsel’s decision to allow admission of the

certified report. It may have been part of defense counsel’s trial strategy not to object to

something so easily proved in order to avoid appearing unreasonable to the jury—we do not

know. What we do know is, prior to trial, defendant did not object to the admission of the

certified report, which contained the same information. Clearly, defense counsel’s strategy was

not to contest the admission of this information. See People v. Perry, 224 Ill. 2d 312, 344-45,



                                                 - 15 ­
864 N.E.2d 196, 216 (2007). Assuming arguendo counsel’s performance was deficient by failing

to object to the introduction of the officer’s testimony, there was no prejudice because the

certified document was admitted without objection. As stated earlier, nothing in the record

indicates the certifying custodian was unavailable for trial. As such, defendant fails on the

ineffective assistance of counsel claims.



¶ 45                                        C. Assessments

¶ 46           Defendant argues this court should vacate four fines improperly imposed by the

circuit clerk, namely a $10 arrestee’s medical assessment, a $5 drug court program assessment, a

$10 state police services assessment, and a $15 state police operations assessment.

¶ 47           This court has previously addressed the impropriety of the circuit clerk imposing

judicial fines. See People v. Larue, 2014 IL App (4th) 120595, ¶¶ 55-73, 10 N.E.3d 959.

“Although circuit clerks can have statutory authority to impose a fee, they lack authority to

impose a fine, because the imposition of a fine is exclusively a judicial act.” (Emphases omitted.)

People v. Smith, 2014 IL App (4th) 121118, ¶ 18, 18 N.E.3d 912. Thus, “any fines imposed by

the circuit clerk are void from their inception.” Larue, 2014 IL App (4th) 120595, ¶ 56. The

propriety of the imposition of fines and fees presents a question of law, which we review

de novo. People v. Guja, 2016 IL App (1st) 140046, ¶ 69, 51 N.E.3d 970.

¶ 48           The State concedes the aforementioned clerk-imposed fines should be vacated,

citing Larue, 2014 IL App (4th) 120595, ¶ 57; People v. Bell, 2012 IL App (5th) 100276, ¶ 42,

968 N.E.2d 1262; People v. Millsap, 2012 IL App (4th) 110668, ¶ 31, 979 N.E.2d 1030; and

People v. Sulton, 395 Ill. App. 3d 186, 193, 916 N.E.2d 642, 648 (2009). Following our

extensive precedent on the matter, we agree with the parties that the aforementioned charges



                                                - 16 ­
assessed by the circuit clerk are fines and should be vacated. See Larue, 2014 IL App (4th)

120595, ¶ 57 (finding arrestee’s medical assessment is a fine); Millsap, 2012 IL App (4th)

110668, ¶ 31 (stating state police operations assessment is a fine); People v. Warren, 2016 IL

App (4th) 120721-B, ¶ 134, 55 N.E.3d 117 (stating the state police services assessments are

fines); Sulton, 395 Ill. App. 3d at 193 (finding drug court assessment is a fine when it does not

relate to the defendant’s prosecution).

¶ 49           Defendant also argues this court should vacate the Violent Crime Victims

Assistance (VCVA) assessment (725 ILCS 240/10 (West 2014)) because it is a fine imposed by

the circuit clerk. As part of the sentence, the trial judge filed a written order concerning fines and

stated defendant must pay a VCVA assessment. The judge did not attach a monetary amount to

the fine. The circuit clerk later assessed a $100 assessment. Defendant contends this is a clerk-

imposed fine, quoting People v. Smith, 2014 IL App (4th) 121118, ¶ 63, 18 N.E.3d 912

(“[a]bsent a court order imposing a specific fine, it is well established the clerk of a court, as a

nonjudicial member of the court, has no power to levy fines”). We disagree.

¶ 50           In the case before this court, the trial court imposed the VCVA assessment. The

statute requires a $100 assessment for any felony. 725 ILCS 240/10(b)(1) (West 2014). Thus, the

clerk was merely entering in the appropriate amount from the statute, not imposing the fine.

Accordingly, we find the fine was properly assessed by the trial court.

¶ 51                                      III. CONCLUSION

¶ 52           For the reasons stated, we affirm in part and vacate in part. As part of our

judgment, we award the State its $75 statutory assessment against defendant as costs of this

appeal.

¶ 53           Affirmed in part and vacated in part.



                                                - 17 ­
