                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Butler, 2013 IL App (5th) 110282




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ROBERT A. BUTLER, Defendant-Appellant.



District & No.             Fifth District
                           Docket No. 5-11-0282


Filed                      February 6, 2013


Held                       Defendant’s claim for a credit, based on his presentencing incarceration,
(Note: This syllabus       against the imposition of the fee for the Children’s Advocacy Center was
constitutes no part of     properly raised on appeal from the dismissal of his postconviction
the opinion of the court   petition, notwithstanding the fact that the credit did not involve the denial
but has been prepared      of a constitutional right that is cognizable in proceedings under the Post-
by the Reporter of         Conviction Hearing Act, since a claim for such a credit may be raised at
Decisions for the          any time and at any stage of court proceedings, and although labeled a
convenience of the         “fee,” it was a fine, because it did not compensate the State for
reader.)
                           prosecuting defendant; therefore, the mittimus was corrected to reflect a
                           $30 credit.


Decision Under             Appeal from the Circuit Court of Wayne County, No. 10-CF-162; the
Review                     Hon. Joe Harrison, Judge, presiding.



Judgment                   Mittimus modified.
Counsel on                 Michael J. Pelletier, Ellen J. Curry, and Lawrence J. O’Neill, all of State
Appeal                     Appellate Defender’s Office, of Mt. Vernon, for appellant.

                           David Williams, State’s Attorney, of Fairfield (Patrick Delfino, Stephen
                           E. Norris, and Sharon Shanahan, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE GOLDENHERSH delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Spomer and Justice Stewart concurred in the judgment
                           and opinion.




                                             OPINION

¶ 1         The instant case stems from a postconviction petition filed by defendant, Robert A.
        Butler. Defendant pled guilty to unlawful delivery of a controlled substance (720 ILCS
        570/407(b)(3) (West 2010)). Pursuant to a negotiated plea, defendant was sentenced to five
        years in the Department of Corrections to be followed by two years of mandatory supervised
        release, awarded credit for time served from November 23, 2010, until March 3, 2011, and
        charged $291 in costs and fees, including a $30 Children’s Advocacy Center fee. No
        postjudgment motion was filed.
¶ 2         On May 9, 2011, defendant filed a pro se postconviction petition in which he argued his
        sentence should be reduced because he was not sufficiently admonished about the two-year
        period of mandatory supervised release. The trial court dismissed the petition at the first
        stage, finding the allegations without merit. In this appeal, the only issue we are asked to
        address is whether defendant is entitled to a $5-a-day credit against the $30 Children’s
        Advocacy Center fee (55 ILCS 5/5-1101(f-5) (West 2008)) imposed at sentencing.
¶ 3         Defendant argues that pursuant to section 110-14 of the Code of Criminal Procedure of
        1963 (Code) (725 ILCS 5/110-14 (West 2008)), he is entitled to a $5-a-day credit against the
        $30 fee for the time he spent in jail awaiting his sentence. The State replies that defendant’s
        argument does not raise a cognizable claim under the Post-Conviction Hearing Act (Act)
        (725 ILCS 5/122-1 to 122-8 (West 2008)) and asks us to deny defendant’s request for a per
        diem monetary credit.
¶ 4         Section 110-14(a) of the Code provides that “[a]ny person incarcerated on a bailable
        offense who does not supply bail and against whom a fine is levied on conviction of such
        offense shall be allowed a credit of $5 for each day so incarcerated upon application of the
        defendant.” 725 ILCS 5/110-14(a) (West 2008). According to section 110-14, the amount
        of the available credit is calculated by multiplying $5 by the number of days of incarceration.

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      725 ILCS 5/110-14(a) (West 2008). Section 110-14 specifies that this credit is available only
      against a “fine.” A charge is a fine, even if the legislature labels it a fee, if it “does not seek
      to compensate the state for any costs incurred as the result of prosecuting the defendant.”
      People v. Jones, 223 Ill. 2d 569, 600, 861 N.E.2d 967, 986 (2006). Thus, despite the label
      of a fee, the $30 for the Children’s Advocacy Center is a “fine.” People v. Mimes, 2011 IL
      App (1st) 082747, ¶ 84, 953 N.E.2d 55. While the State does not disagree, it insists that when
      a defendant appeals under the auspices of the Act, but raises no question thereunder and the
      only claim for relief is a per diem monetary credit, the appropriate remedy is correction of
      the mittimus by the trial court. We disagree.
¶ 5        In People v. Caballero, 228 Ill. 2d 79, 885 N.E.2d 1044 (2008), the defendant raised the
      issue of a per diem monetary credit under section 110-14 of the Code for the first time on
      appeal in postconviction proceedings. In that case, the State argued that the defendant’s claim
      under section 110-14 involved a statutory right, not a constitutional right, and, thus, was not
      cognizable in a postconviction proceeding. 228 Ill. 2d at 83, 885 N.E.2d at 1046. Our
      supreme court disagreed, stating as follows:
               “While we hold that a claim for monetary credit under section 110-14 is a statutory
           claim and therefore not cognizable as a separate issue upon which to base relief under the
           Post-Conviction Hearing Act, we also hold that this statutory claim may be considered
           as an ‘application of the defendant’ made under the statute and may be raised at any time
           and at any stage of court proceedings, even on appeal in a postconviction proceeding.
           Accordingly, if, as in this case, the basis for granting the application of the defendant is
           clear and available from the record, the appellate court may, in the ‘interests of an orderly
           administration of justice,’ grant the relief requested.” 228 Ill. 2d at 88, 885 N.E.2d at
           1049.
      This language is unequivocal and allows a defendant to raise a claim for monetary credit
      under section 110-14 at any time and at any stage of court proceedings, even, as here, on
      appeal from a postconviction proceeding.
¶ 6        Nevertheless, the State insists that Caballero is distinguishable from the instant case
      because Caballero included an issue based upon the Act. In Caballero, the defendant also
      asserted the trial court erred in dismissing his petition because it sufficiently alleged the gist
      of a constitutional claim of ineffective assistance of counsel. Caballero, 228 Ill. 2d at 82, 885
      N.E.2d at 1045. The State also insists that the underlying policy of judicial economy supports
      its position because if a defendant can raise a statutory claim for a per diem monetary credit
      at any time, then it would behoove a defendant to raise the point in the circuit court where
      he or she can receive prompt relief, without the lengthy wait and use of judicial resources
      necessarily incurred in an appeal. We reject the State’s arguments.
¶7         The State’s argument that defendant is not entitled to relief because this is the only issue
      raised on appeal is not supported by Caballero, which specifically states that a defendant is
      allowed to raise a claim for a monetary credit even for the first time on appeal in a
      postconviction proceeding. Moreover, the State’s argument for promoting judicial economy
      falls flat. In order to promote judicial economy, it simply makes no sense for us not to do
      what we are allowed to do. While defendant did not apply for a credit in the trial court, the


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      credit is mandatory and, relying on Caballero, we find defendant is permitted to make his
      request for the first time on appeal in a postconviction proceeding. Here, the record is clear
      that defendant spent more than enough days in presentence custody to give him a $30 credit
      against his Children’s Advocacy Center fee.
¶ 8       For the foregoing reasons, we order the mittimus modified to reflect a $30 credit of the
      Children’s Advocacy Center fee.

¶ 9      Mittimus modified.




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