                                         2016 IL App (3d) 130650

                               Opinion filed February 22, 2016
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2016

     THE PEOPLE OF THE STATE OF ILLINOIS, )                   Appeal from the Circuit Court
                                          )                   of the 10th Judicial Circuit,
           Plaintiff-Appellee,            )                   Peoria County, Illinois.
                                          )
                                          )                   Appeal No. 3-13-0650
           v.                             )                   Circuit No. 12-CF-642
                                          )
     JALIN FORD,                          )                   The Honorable
                                          )                   Michael Brandt,
           Defendant-Appellant.           )                   Judge, Presiding.
     _____________________________________________________________________________

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

                                                OPINION


¶1          Defendant Jalin Ford was convicted of reckless conduct for causing damage to a van

     owned by the Peoria Multi-County Narcotics Enforcement Group (MEG) unit. The trial court

     sentenced defendant to one day in jail and 18 months of probation. The court ordered defendant

     to pay restitution to the Peoria MEG unit, as well as court costs and “mandatory assessments.”

     The Peoria County Circuit Clerk assessed a total of $902.50 in fines and fees against defendant.

     On appeal, defendant argues that (1) there was insufficient evidence to prove he committed

     reckless conduct, (2) the trial court erred in requiring him to pay restitution, and (3) the Peoria
     County Circuit Clerk improperly assessed fines and fees against him. We affirm defendant’s

     conviction and restitution judgment but vacate the fines and fees assessed by the circuit clerk and

     remand, with directions, for the trial court to properly assess fines and fees.

¶2                                                  FACTS

¶3          Defendant was charged with one count of criminal damage to property (720 ILCS 5/21-

     1(a)(1) (West 2012)) for knowingly damaging a van owned by the Peoria MEG unit on May 23,

     2012. He was later charged with one count of reckless conduct (720 ILCS 5/12-5(a) (West

     2012)) for accelerating his vehicle toward the Peoria MEG unit van “when the two vehicles were

     close” and endangering the van’s driver.

¶4          A bench trial was held in July 2013. Ryan Tarby, a police officer with the Tazewell

     County Sheriff’s Office, testified that he was part of the Peoria MEG unit on May 23, 2012. On

     that day, he drove a minivan owned by the unit to an apartment building located at 3210 N.

     Woodbine in Peoria, where a confidential informant had arranged to buy drugs from defendant.

¶5          Tarby explained that there is a parking lot behind the apartment building at 3210 N.

     Woodbine. Two driveways access that parking lot: one north of the apartment building, and one

     south of the apartment building. Tarby drove the Peoria MEG unit van in the middle of the north

     driveway toward the back parking lot of the apartment building. Tarby estimated that the north

     driveway was approximately one-and-a-half vehicles in width and could fit only one vehicle at a

     time. As Tarby proceeded up the driveway, he saw defendant’s vehicle round the corner and

     come toward him from the parking lot in the back of the apartment building.

¶6          When defendant saw Tarby, defendant straightened out his vehicle, sped up and came

     directly at the van Tarby was driving. Tarby estimated that the vehicles were 50 to 60 feet apart

     when he saw defendant “hit the gas.” Tarby testified that he was driving less than 5 miles per


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       hour at the time. After defendant increased his speed, both defendant and Tarby turned their

       steering wheels in the same direction to brace for the impact, and their vehicles collided.

¶7            Tarby testified that the left front bumper of the minivan struck the driver’s side of

       defendant’s vehicle. There was extensive damage to defendant’s driver’s side door and minor

       damage to the bumper of the van. Tarby believed that defendant tried to drive around him

       through the bushes but that there was not enough room in the driveway for defendant’s vehicle to

       get through without hitting the van.      Defendant’s vehicle became pinned between Tarby’s

       vehicle and bushes next to the apartment building.

¶8            Once the vehicles came into contact, defendant tried to continue to accelerate but was

       unsuccessful. Tarby had his foot on the brake, so defendant’s vehicle could not move. Tarby

       was wearing a green flight suit with a badge and a black jacket with the word “Police” on both

       the front and back.

¶9            Chris Watkins, a deputy with the Peoria County Sheriff’s Office, testified that he was part

       of the Peoria MEG unit and was in front of the apartment building at 3210 N. Woodbine in

       Peoria on May 23, 2012, when defendant arrived in his vehicle. Defendant drove behind the

       building. Master Sergeant Gorsuch pulled in behind defendant, using the south driveway, and

       Tarby, who was driving the unit’s “arrest van,” came up the driveway on the north side of the

       apartment building to “block in” defendant.

¶ 10          Watkins could not see behind the apartment building, but he observed defendant’s

       vehicle “as soon as he turned the corner on the north side of the apartment complex.” When

       defendant turned the corner, “he turned sharply to the north like he was – it appeared to me that

       he was avoiding the arrest van that pulled in front of him.” Defendant appeared to accelerate and




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       veer to his right. Defendant’s vehicle came into contact with a bush and the van Tarby was

       driving. Watkins thought that defendant seemed to be trying to avoid Tarby’s vehicle.

¶ 11          Ryan Gorsuch, a master sergeant with the Illinois State Police currently assigned to the

       Peoria MEG unit, was participating in the unit’s “buy bust” on May 23, 2012, at 3210 N.

       Woodbine in Peoria. He was driving an unmarked blue Chevy Tahoe. He witnessed defendant

       drive to the back of the apartment building. Gorsuch drove his vehicle on the south driveway

       and proceeded to the back of the building with his strobe lights activated. When defendant saw

       him, he rounded the north corner of the building. Gorsuch did not see the collision between

       defendant and Tarby. When he came around the corner, he saw defendant’s vehicle and the van

       Tarby was driving “pinned up in the bushes.” He heard defendant’s engine revving up, like

       defendant was trying to accelerate.

¶ 12          Defendant testified that as he was driving around the back of the apartment building at

       3210 N. Woodbine in Peoria on May 23, 2012, he turned into the north driveway and saw a van

       coming at him “at a high rate of speed.” According to defendant, Tarby “just rushed me and hit

       my driver’s side and rammed me into the bushes.” Defendant estimated that he was driving 10

       miles per hour, while the van was traveling at least 30 miles per hour.

¶ 13          Defendant testified that he had no intention of making contact with the van. He further

       testified that “after he was rammed,” he was “pinned in the bushes” and made no attempt to

       move his vehicle. Defendant testified that he did not see any red and blue flashing lights behind

       him when he was in the parking lot because he only “looked forward.” He denied revving his

       engine after the impact. He said he did not know a police officer was driving the van.

¶ 14          Roger Whitman runs Green Chevrolet, a body shop and dealership in Peoria.              He

       examined the Peoria MEG unit van that Tarby was driving on May 23, 2012, and determined that


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       it needs a new front bumper cover, a new left headlight assembly and a new hood. He estimated

       that it will cost $1,836.44 to repair it.

¶ 15           The trial court found defendant not guilty of criminal damage to property and guilty of

       reckless conduct. The trial court sentenced defendant to one day in jail and 18 months of

       probation. The court ordered defendant to pay restitution of $1,836.44 to the Peoria MEG unit,

       as well as “the cost of the proceedings, and any mandatory assessments.” The Peoria County

       Circuit Court Clerk prepared a document showing that defendant owed $902.50 in fines and fees.

¶ 16                                               ANALYSIS

¶ 17                                                   I

¶ 18           Defendant first argues that he was not proven guilty beyond a reasonable doubt of

       reckless conduct. He argues that his conduct was not reckless because he tried to avoid hitting

       the van Tarby was driving.

¶ 19           The relevant inquiry in reviewing the sufficiency of the evidence to sustain a verdict on

       appeal is whether any rational trier of fact could have found the essential elements of the crime

       beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution.

       People v. Hopkins, 201 Ill. 2d 26, 40 (2002). “A person commits reckless conduct when he or

       she, by any means lawful or unlawful, recklessly performs an act or acts that: (1) cause bodily

       harm to or endanger the safety of another person; or (2) cause great bodily harm or permanent

       disability or disfigurement to another person.” 720 ILCS 5/12-5(a) (West 2012).

¶ 20           A driver is reckless if he knows of the danger of a collision and collides with another

       vehicle without employing reasonable means to avoid the accident. People v. Brajcki, 150 Ill.

       App. 3d 506, 512 (1986). A reasonable person would attempt to avoid a collision by reducing




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       speed and braking when seeing an oncoming vehicle. See People v. Mikyska, 179 Ill. App. 3d

       795, 802 (1989).

¶ 21           In a prosecution for reckless conduct, the State must prove that defendant’s conduct

       shows a conscious disregard of a substantial risk likely to cause bodily harm such that a

       reasonable person would have acted differently in the same situation. People v. Gosse, 119 Ill.

       App. 3d 733, 738-39 (1983). The mental state of recklessness is to be inferred from all of the

       facts and circumstances in the record. Id. at 736. Whether given conduct is reckless is a

       question for the trier of fact. Id.

¶ 22           Here, both Tarby and Watkins testified that when defendant saw the Peoria MEG unit

       van approaching his vehicle head on, he accelerated, causing the van and his vehicle to collide.

       This testimony was sufficient to establish recklessness. See Brajcki, 150 Ill. App. 3d at 512; see

       also West Chicago St. R.R. Co. v. Shannon, 106 Ill. App. 120, 125 (1903) (motorman who

       accelerates instead of stopping after seeing someone crossing track in front of him is reckless).

       A reasonable person in the same situation would not have sped up but would have stopped his

       vehicle to avoid a collision. See Mikyska, 179 Ill. App. 3d at 802. Under the circumstances

       presented here, the trial court could have reasonably concluded that defendant acted recklessly.

       There was sufficient evidence to support the trial court’s verdict.

¶ 23                                                      II

¶ 24           Next, defendant argues that the court’s restitution order is void because the Peoria MEG

       unit is not a “victim” eligible to receive restitution.

¶ 25           The restitution statute, which is contained in section 5-5-6 of the Unified Code of

       Corrections, authorizes courts to order restitution when a person has “received any injury to his

       or her person or damage to his or her real or personal property as a result of the criminal act of


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       the defendant.” 730 ILCS 5/5-5-6 (West 2012). The statute provides: “[T]he court shall assess

       the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in

       the charge and any other victims who may have suffered out-of-pocket expenses, losses,

       damages, and injuries proximately cased by the same criminal conduct of the defendant ***.”

       730 ILCS 5/5-5-6(b) (West 2012). A “victim” under the restitution statute is someone who has

       suffered property damage, personal injury, or financial loss. People v. Danenberger, 364 Ill.

       App. 3d 936, 943 (2006).

¶ 26          Generally, a trial court’s determination on restitution will not be reversed absent an abuse

       of discretion. People v. Cameron, 2012 IL App (3d) 110020, ¶ 35. However, when, as here, the

       issue is whether a restitution order is authorized by statute, it is a question of law that we review

       de novo. Id.

¶ 27           “[T]he vast weight of authority has held that a police department or government agency

       is not considered a ‘victim’ within the meaning of the restitution statute [citation].” People v.

       Derengoski, 247 Ill. App. 3d 751, 754 (1993) (citing People v. Lawrence, 206 Ill. App. 3d 622

       (1990), People v. Chaney, 188 Ill. App. 3d 334 (1989), People v. Gaytan, 186 Ill. App. 3d 919

       (1989), People v. McGrath, 182 Ill. App. 3d 389 (1989), People v. Winchell, 140 Ill. App. 3d 244

       (1986), and People v. Evans, 122 Ill. App. 3d 733 (1984)).             Courts have precluded law

       enforcement agencies from receiving restitution for (1) funds used to purchase illegal drugs from

       defendants (People v. Mocaby, 378 Ill. App. 3d 1095, 1102 (2008); McGrath, 182 Ill. App. 3d at

       395-96; Chaney, 188 Ill. App. 3d at 335; Gaytan, 186 Ill. App. 3d at 929-30; Evans, 122 Ill. App.

       3d at 740), (2) funds used to purchase stolen goods from a defendant (Winchell, 140 Ill. App. 3d

       at 247), (3) expenses incurred in arresting a defendant (Derengoski, 247 Ill. App. 3d at 754), and




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       (4) expenses incurred in investigating a false criminal complaint (Danenberger, 364 Ill. App. 3d

       at 941-42).

¶ 28          The “rationale of these opinions is that a law enforcement agency ought not be

       compensated for the public money that it spends in performing its basic function of investigating

       and solving crimes.” Id. at 944. The reasons for the rule are twofold. First, merely investigating

       an offense does not make a law enforcement agency a “victim” of the offense. Id. “Second,

       were the rule otherwise, police departments would receive restitution in almost every criminal

       case, thus being paid twice–once by the taxpayers and once by the offender–for performing their

       basic function.” Id.

¶ 29          Nevertheless, there is no per se rule prohibiting a law enforcement agency from receiving

       restitution. Id. “[I]t is at least plausible that, if a person commits criminal damage to property by

       destroying a police department squad car, then the department may be compensated for the loss.”

       Id. (citing United States v. Donaby, 349 F.3d 1046, 1053-54 (7th Cir. 2003) (village entitled to

       restitution for damage to police car proximately caused by defendant’s bank robbery)). Many

       courts have required defendants to pay restitution to police departments when they damage

       police vehicles. See United States v. Washington, 434 F.3d 1265, 1268-70 (11th Cir. 2006)

       (defendant required to pay restitution to police department for damage to police cars caused

       during armed robbery); United States v. Reichow, 416 F.3d 802, 805 (8th Cir. 2005) (defendant

       ordered to pay restitution for damage defendant caused to police car); State v. Dillon, 637 P.2d

       602, 608-09 (Or. 1981) (defendant ordered to pay restitution to police department for damage

       caused by defendant’s collision with police car); People v. Barnett, 654 N.Y.S.2d 918, 919 (N.Y.

       App. Div. 1997) (defendant required to pay restitution to New York State Police Department to




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       cover “the cost of repairing a police car that was damaged as a direct result of defendant’s

       criminal conduct”).

¶ 30          Here, the trial court ordered defendant to pay restitution in the amount of the repair bill

       for the Peoria MEG unit van that was damaged by defendant’s reckless conduct. The restitution

       in this case did not reimburse the Peoria MEG unit for its normal costs of investigating crime.

       Instead, the restitution covered the cost of repairing a law enforcement vehicle that was damaged

       as a direct result of defendant’s criminal conduct. See Dillon, 637 P.2d at 608-09; Barnett, 654

       N.Y.S.2d at 919. Because the Peoria MEG unit suffered out-of-pocket expenses as a result of

       defendant’s conduct, it was entitled to restitution. See Danenberger, 364 Ill. App. 3d at 944.

       We affirm the trial court’s restitution award.

¶ 31                                                    III

¶ 32          Finally, defendant argues that the Peoria County Circuit Court Clerk improperly assessed

       fines and fees against him that were not authorized by the trial court. He further contends that he

       is entitled to per diem credit for any fines assessed against him. The State concedes that the

       circuit clerk imposed fines without authorization and agrees that we should vacate the

       assessments and fines and remand the case with directions to the trial court to correct any errors

       in the imposition of court costs, assessments and credits.

¶ 33          It is well settled that the imposition of a fine is a judicial act, and the circuit clerk does

       not have authority to impose fines, including mandatory fines. People v. Alghadi, 2011 IL App

       (4th) 100012, ¶ 20. Any fine imposed by the circuit clerk is void. Id. Where a circuit clerk has

       improperly imposed mandatory fines, the reviewing court may vacate those fines and reimpose

       them. People v. Williams, 2013 IL App (4th) 120313, ¶ 18.




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¶ 34          Where monetary assessments have been improperly imposed, the proper remedy is to

       vacate the assessments in full and remand the matter so the trial court may enter an order of

       enumerated costs. See People v. Hunter, 2014 IL App (3d) 120552, ¶¶ 16-17. This remedy

       allows the trial court to delineate “the specific amounts the court intended to order this defendant

       to pay.” (Emphasis in original.) Id. ¶ 17. Remand also allows the matter to be addressed by the

       trial court with input from both parties. See id.

¶ 35          Here, the parties agree that the circuit clerk improperly imposed fines against defendant.

       Accordingly, we vacate all of the fines and fees, and remand the cause with the following

       directions: the trial court should impose each proper fine, fee, assessment and court cost setting

       forth in a written order the statutory authority for each one. The trial court should also calculate

       the appropriate $5-per-day presentence incarceration credit and offset defendant’s fines by that

       amount. See 725 ILCS 5/110-14(a) (West 2012).

¶ 36                                             CONCLUSION

¶ 37          The judgment of the circuit court of Peoria County is affirmed in part, vacated in part,

       and remanded with directions.

¶ 38          Affirmed in part and vacated in part; cause remanded with directions.




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