                                  Illinois Official Reports

                                          Appellate Court



                              People v. Wynn, 2013 IL App (2d) 120575




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      BRIAN N. WYNN, Defendant-Appellant.



District & No.               Second District
                             Docket No. 2-12-0575


Filed                        December 26, 2013


Held                         In an appeal challenging the fines, fees, and costs imposed on
(Note: This syllabus         defendant, the appellate court first vacated the Children’s Advocacy
constitutes no part of the   Center fine as imposed by the clerk of the circuit court and then the
opinion of the court but     court reimposed that fine; defendant was entitled to a $5-per-day
has been prepared by the     credit against his fines for his presentence custody, and that credit
Reporter of Decisions        applied to the Children’s Advocacy Center fine, the drug court/mental
for the convenience of       health court fee, State Police operations assessment, the domestic
the reader.)                 violence fine, the juvenile expungement fine, and the court system
                             finance fee; the $25 Violent Crime Victims Assistance Fund fine was
                             vacated and a $32 fine was imposed in its place, but that fine is not
                             subject to the $5-per-day credit; the appellate court did not consider
                             the public defender fee, as it lacked jurisdiction in the absence of an
                             appeal from the order imposing that fee; and the cause was remanded
                             for a reduction of the probation fees to reflect the time defendant was
                             supervised and for recalculation of the delinquency fee to reflect the
                             modification of the other fines and fees.



Decision Under               Appeal from the Circuit Court of Lake County, No. 11-CF-1480; the
Review                       Hon. James K. Booras, Judge, presiding.
     Judgment                 Affirmed as modified in part and vacated in part; cause remanded.


     Counsel on               Thomas A. Lilien and Jaime L. Montgomery, both of State Appellate
     Appeal                   Defender’s Office, of Elgin, for appellant.

                              Michael G. Nerheim, State’s Attorney, of Waukegan (Lawrence M.
                              Bauer and Matthew J. Schmidt, both of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.


     Panel                    JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                              Justices Hutchinson and Jorgensen concurred in the judgment and
                              opinion.


                                              OPINION

¶1         Pursuant to a negotiated plea agreement, defendant, Brian N. Wynn, pleaded guilty to
       domestic battery (enhanced) (720 ILCS 5/12-3.2(a)(2) (West 2010)) in return for a sentence of
       18 months’ probation. In sentencing defendant, the court also imposed various fines and fees
       that defendant never challenged. Soon thereafter, the State petitioned to revoke defendant’s
       probation when he failed to comply with several probationary terms. The trial court granted the
       petition to revoke and sentenced defendant to three years’ imprisonment. Defendant moved to
       reconsider, and, following a hearing, the court reduced defendant’s sentence to 2½ years. On
       appeal, defendant argues that (1) the clerk of the circuit court could not impose the $5
       Children’s Advocacy Center fine; (2) he is entitled to a $5 credit against his fines for each day
       he served in presentencing custody; (3) the public defender fee the court imposed must be
       vacated because, before assessing that fee, the court failed to hold a hearing on defendant’s
       ability to pay; (4) any probation fees charged for the time defendant was not serving probation
       must be vacated; and (5) the delinquency fee assessed against defendant must be vacated, as it
       is based on an incorrect unpaid balance amount. The State in essence agrees, but it claims that
       defendant’s Violent Crime Victims Assistance Fund fine is improper and that this court lacks
       jurisdiction to consider the propriety of the public defender fee. For the reasons that follow, we
       affirm as modified in part, vacate in part, and remand.

¶2                                       I. BACKGROUND
¶3         The following facts are relevant to resolving the issues raised on appeal. In June 2011,
       defendant was charged with aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West
       2010)), four counts of domestic battery (enhanced), obstructing justice (720 ILCS 5/31-4(a)
       (West 2010)), and unlawful restraint (720 ILCS 5/10-3(a) (West 2010)). Pursuant to a plea
       agreement, defendant pleaded guilty to one count of domestic battery (enhanced) in exchange
       for, among other things, a sentence of 18 months’ probation. In imposing this term of probation

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     on September 2, 2011, the court assessed against defendant various fines and fees, which, as
     the court stated, totaled $2,394. Included in these fines and fees was a $5 drug court/mental
     health court fee; 1 a $10 specialty court fee; a $7 State Police operations assessment; a $200
     domestic violence fine; a $30 juvenile expungement fine; a $50 court system finance fee; and
     $900 in probation fees. 2 Additionally, the court imposed a $750 public defender fee; the court
     assessed a $25 Violent Crime Victims Assistance Fund fine; and the clerk of the court imposed
     a $5 Children’s Advocacy Center fine. Further, the record reflects that defendant spent 115
     days in presentencing custody and that he was entitled to a $5-per-day credit against his fines
     for the time he had served. However, this credit was never applied.
¶4       Five months later, the State petitioned to revoke defendant’s probation, because defendant
     failed to comply with his probationary terms. For example, the State alleged that defendant had
     been arrested for aggravated battery to a child, aggravated battery, and domestic battery. While
     the petition to revoke was pending, defendant’s attorney advised the court that defendant was
     on probation from September 2, 2011, until January 25, 2012, which is when he was arrested
     for having committed these new crimes.
¶5       Following a hearing on the petition, which was held on March 16, 2012, the court revoked
     defendant’s probation, and the court sentenced him to three years’ imprisonment on May 15,
     2012. Defendant moved to reconsider, and the court reduced defendant’s sentence to 2½ years.
     Defense counsel noted that defendant had been in custody for 235 days, and she asked that
     defendant receive a “$5 a day credit towards the statutory fines.” The court said that “[it] will
     award [that], yes.” According to the supplemental record submitted to this court, defendant
     was not given this credit, and he was assessed a delinquency fee of $718. 3 Defendant filed a
     notice of appeal on May 22, 2012.

¶6                                        II. ANALYSIS
¶7       On appeal, defendant raises several issues related to the fines and fees imposed against
     him. Specifically, he argues that (1) the clerk of the court could not impose the $5 Children’s
     Advocacy Center fine; (2) he is entitled to a $5 credit against his fines for each day he served in
     presentencing custody; (3) the public defender fee the court imposed must be vacated because,
     before assessing that fee, the court failed to hold a hearing on defendant’s ability to pay; (4)
     any probation fees charged for the time defendant was not serving probation must be vacated;
     and (5) the delinquency fee assessed against him must be vacated, as it is based on an incorrect

         1
          As defendant observes, the drug court/mental health court fee is listed as two separate
     assessments: $4.75 for a drug court/mental health court fee and $0.25 for the Circuit Court Clerk
     Operation and Administrative Fund. The applicable statute reflects that the total fee of $5 was properly
     assessed in this case. See 55 ILCS 5/5-1101(f) (West 2010).

         2
         The $900 in probation fees is based on a charge of $50 per month, with, it appears from the
     supplemental record, $864 covering probation services and $36 going to crime victim services (see 730
     ILCS 5/5-6-3(i) (West 2010)).

         3
          The supplemental record lists the $718 fee as “Harris and Harris.” Defendant claims that this, in
     actuality, is a delinquency fee, and the State agrees.
                                                    -3-
       unpaid balance amount. The State essentially concedes error on all of these points except one.
       That is, the State claims that this court lacks jurisdiction to consider the propriety of the public
       defender fee. The State also contends that the Violent Crime Victims Assistance Fund fine
       must be modified. We consider in turn each of the issues raised.
¶8         Before addressing these issues, we note that defendant never raised in the trial court any
       issue related to the fines and fees imposed. He claims that he may take issue with them now,
       because void orders may be attacked at any time. See People v. Martino, 2012 IL App (2d)
       101244, ¶ 17. As noted, the State concedes that defendant may raise these issues, except for the
       public defender fee, for the first time on appeal. Accordingly, we will address each of the
       issues, and, in so doing, we will consider whether this court has jurisdiction over the public
       defender fee. See id. Moreover, we observe that, because the issues raised concern pure
       questions of law, including the construction of a statute, our review is de novo. See id. ¶¶ 21,
       26; People v. Carter, 392 Ill. App. 3d 520, 523 (2009) (courts employ a de novo standard of
       review when the issues raised concern questions of law and there are no disputed factual
       issues).

¶9                               A. Children’s Advocacy Center Fine
¶ 10        The first issue we address is whether the clerk of the circuit court could impose the $5
       Children’s Advocacy Center fine. The Children’s Advocacy Center fine is a mandatory fine.
       See 55 ILCS 5/5-1101(f-5) (West 2010). Thus, it must be imposed. People v. Evangelista, 393
       Ill. App. 3d 395, 401 (2009). However, even though the fine is mandatory, the clerk of the
       court lacks the authority to impose it. Id. When the clerk, and not the trial court, assesses the
       fine, this court may vacate the fine and reimpose it. Id. Accordingly, here, we vacate the $5
       Children’s Advocacy Center fine and reimpose it. Id.

¶ 11                                           B. Credit
¶ 12       We next address whether defendant is entitled to a $5-per-day credit against his fines for
       the time he spent in presentencing custody. Section 110-14(a) of the Code of Criminal
       Procedure of 1963 (Code) (725 ILCS 5/110-14(a) (West 2010)) delineates under what
       circumstances a defendant is entitled to presentencing credit. Specifically, section 110-14(a)
       provides:
               “Any 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. However, in no case shall
               the amount so allowed or credited exceed the amount of the fine.” Id.
       Here, defendant was in custody for at least 115 days. Thus, defendant is entitled to a credit of at
       least $575 against those fines to which section 110-14(a) applies.
¶ 13       Defendant argues that he is entitled to this credit for the following assessments: (1) the $5
       Children’s Advocacy Center fine; (2) the $5 drug court/mental health court fee; (3) the $10
       specialty court fee; (4) the $7 State Police operations assessment; (5) the $200 domestic
       violence fine; (6) the $30 juvenile expungement fine; and (7) the $50 court system finance fee.
       Our supreme court has concluded that a drug court/mental health court assessment, though
       labeled a fee (see 55 ILCS 5/5-1101(d-5) (West 2010)), is, in actuality, a fine subject to the

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       monetary credit. People v. Graves, 235 Ill. 2d 244, 255 (2009). Likewise, courts have found
       that Children’s Advocacy Center assessments (55 ILCS 5/5-1101(f-5) (West 2010)), specialty
       court charges (55 ILCS 5/5-1101(d-5) (West 2010)), State Police operations assessments (705
       ILCS 105/27.3a(1.5) (West 2010)), and domestic violence charges (730 ILCS 5/5-9-1.5 (West
       2010)) are fines subject to the $5-per-day credit. See Graves, 235 Ill. 2d at 254-55 (specialty
       court fee is a fine subject to credit); People v. Millsap, 2012 IL App (4th) 110668, ¶ 31 (State
       Police operations fee is a fine subject to credit); People v. Maldonado, 402 Ill. App. 3d 411,
       435-36 (2010) (Children’s Advocacy Center charge is a fine subject to credit); People v.
       Irvine, 379 Ill. App. 3d 116, 132-33 (2008) (domestic violence charge is a fine subject to
       credit).
¶ 14        What is less clear is whether the $30 juvenile expungement fine and the $50 court finance
       fee are also subject to the $5-per-day credit. Although no other court has looked at whether
       these charges are actually fines or fees, defendant claims that they are fines, and the State
       concedes that they are.
¶ 15        In determining whether a charge is a fine or a fee, the most important factor “is whether the
       charge seeks to compensate the state for any costs incurred as the result of prosecuting the
       defendant.” Graves, 235 Ill. 2d at 250. A “fine,” which is punitive, seeks to penalize a
       defendant who has been convicted of a crime. Id. In contrast, “[a] charge is a fee if and only if
       it is intended to reimburse the state for some cost incurred in [the] defendant’s prosecution.”
       People v. Jones, 223 Ill. 2d 569, 600 (2006).
¶ 16        The juvenile expungement fine was imposed pursuant to section 5-9-1.17 of the Unified
       Code of Corrections (Unified Code) (730 ILCS 5/5-9-1.17 (West 2010)), which provides that
       “[t]here shall be added to every penalty imposed in sentencing for a criminal offense an
       additional fine of $30 to be imposed upon a plea of guilty or finding of guilty resulting in
       judgment of conviction.” 4 730 ILCS 5/5-9-1.17(a) (West 2010). Section 5-9-1.17(b) of the
       Unified Code (730 ILCS 5/5-9-1.17(b) (West 2010)) indicates that the charge will be used to
       expunge juvenile records and is in no way related to the prosecution of the adult defendant
       against whom the charge is levied. Given that the juvenile expungement fine is added to “every
       penalty” (see 730 ILCS 5/5-9-1.17(a) (West 2010)) and is used for things having nothing to do
       with the defendant against whom it is imposed, we must conclude that it is truly a fine and thus
       is subject to the $5-per-day credit. See Jones, 223 Ill. 2d at 593 (when a charge is added to
       every penalty it is a fine).
¶ 17        The $50 court system finance fee was imposed pursuant to section 5-1101(c)(1) of the
       Counties Code (55 ILCS 5/5-1101(c)(1) (West 2010)). Section 5-1101(c)(1) of the Counties
       Code provides that, when a judgment of guilty is entered in a defendant’s felony case, a “fee”
       of $50 shall be imposed upon the defendant. Id. This “fee” is in place to finance the court
       system. See Graves, 235 Ill. 2d at 253. Because, like the juvenile expungement fine and the
       other charges with which defendant takes issue, this charge is imposed upon every defendant
       who is found guilty in a felony case, regardless of what transpired in the defendant’s case, it is
       a penalty, and, as a penalty, it is subject to the $5-per-day credit. Id. (noting that other “fees” in

           4
           The juvenile expungement fine is comprised of a $10 charge for the State Police Services Fund, a
       $10 charge for the State’s Attorney’s office that prosecuted the case, and a $10 charge for the Circuit
       Court Clerk Operation and Administrative Fund. 730 ILCS 5/5-9-1.17(b) (West 2010).
                                                      -5-
       section 5-1101 of the Counties Code are actually fines, because they do not compensate the
       State for prosecuting a particular defendant, they are imposed only after a defendant is
       convicted, and they further the State’s interest in financing the court system).
¶ 18       Accordingly, the $5 Children’s Advocacy Center fine; the $5 drug court/mental health
       court fee; the $10 specialty court fee; the $7 State Police operations assessment; the $200
       domestic violence fine; the $30 juvenile expungement fine; and the $50 court system finance
       fee, which fines total $307, must be fully credited for the time defendant served in custody
       before sentencing.

¶ 19                         C. Violent Crime Victims Assistance Fund Fine
¶ 20       In the opening paragraph of the argument portion of defendant’s brief, he claims that his
       $25 Violent Crime Victims Assistance Fund fine is improper. Nowhere in the substance of his
       argument does defendant elaborate on this point. In its brief, the State agrees with defendant
       and proposes that defendant’s $25 fine be vacated and that a $32 fine be imposed instead. 5
¶ 21       Section 10 of the Violent Crime Victims Assistance Act (725 ILCS 240/10 (West 2010))
       provides for the Violent Crime Victims Assistance Fund fine. It states, in relevant part:
                   “(b) *** [T]here shall be an additional penalty collected from each defendant upon
               conviction *** of $4 for each $40, or fraction thereof, of fine imposed. ***
                   (c) When any person is convicted in Illinois *** of an offense listed below *** and
               no other fine is imposed, the following penalty shall be collected by the Circuit Court
               Clerk:
                        (1) $25, for any crime of violence as defined in subsection (c) of Section 2 of
                   the Crime Victims Compensation Act; and
                        (2) $20, for any other felony or misdemeanor, excluding any conservation
                   offense.” (Emphasis added.) 725 ILCS 240/10(b), (c) (West 2010).
¶ 22       Here, as indicated above, the trial court imposed many fines in addition to the Violent
       Crime Victims Assistance Fund fine. Thus, it was improper for the court to charge defendant a
       $25 Violent Crime Victims Assistance Fund fine under section 10(c).
¶ 23       Instead, under section 10(b), the court should have imposed a fine of $4 for each $40 or
       fraction thereof of other fines imposed. Accepting that the $307 in fines listed above are the
       only charges characterized as fines in this case (see Martino, 2012 IL App (2d) 101244, ¶ 54),
       we determine that defendant’s Violent Crime Victims Assistance Fund fine should be $32, as
       $307 divided by $40 is 7.65, and 8 (which represents each $40 in fines or fraction thereof)
       multiplied by $4 is $32. Id.
¶ 24       Accordingly, we vacate the $25 Violent Crime Victims Assistance Fund fine and impose a
       $32 fine in its place. Id. ¶ 56. In doing so, we note that this fine is not subject to the $5-per-day
       credit. See 725 ILCS 240/10(b), (c) (West 2010); People v. Molidor, 2012 IL App (2d)
       110006, ¶ 18.



           5
           The State indicates in its brief that the trial court’s fine is $20. The record reveals that the court
       imposed a $25 fine.
                                                       -6-
¶ 25                                     D. Public Defender Fee
¶ 26        Section 113-3.1(a) of the Code (725 ILCS 5/113-3.1(a) (West 2010)) authorizes the trial
       court to order a criminal defendant for whom counsel has been appointed to pay a reasonable
       amount to reimburse the county or the state. However, prior to ordering reimbursement, the
       trial court must conduct a hearing concerning the defendant’s financial resources. Id.; People
       v. Love, 177 Ill. 2d 550, 559 (1997). The hearing “shall be conducted on the court’s own
       motion or on motion of the State’s Attorney *** no later than 90 days after the entry of a final
       order disposing of the case at the trial level.” 725 ILCS 5/113-3.1(a) (West 2010).
¶ 27        Before we could address whether a proper hearing was conducted in this case, we must
       consider whether this court has jurisdiction to consider this issue. The State claims that this
       court lacks jurisdiction over this issue, because defendant did not file a timely appeal from the
       probation order that set the public defender fee.
¶ 28        Instructive on the issue of this court’s jurisdiction is People v. Morrison, 298 Ill. App. 3d
       241 (1998). There, the defendant pleaded guilty to attempted aggravated criminal sexual abuse
       (720 ILCS 5/8-4(a), 12-16(d) (West 1996)), and he was sentenced to a term of probation.
       Morrison, 298 Ill. App. 3d at 242. In imposing probation, the court, without first holding a
       hearing on the defendant’s ability to pay, ordered the defendant to pay a $350 public defender
       fee. Id. Almost two months later, the State petitioned to revoke the defendant’s probation. Id.
       The court granted that motion, sentenced the defendant, and denied the defendant’s motion to
       reconsider. Id. at 242-43.
¶ 29        On appeal, the defendant argued for the first time, among other things, that the $350 public
       defender fee must be vacated, because the court never held a hearing on the defendant’s ability
       to pay. Id. at 243-44. The appellate court determined that it lacked jurisdiction to consider
       whether the public defender fee was properly imposed. Id. at 244. In so holding, the court
       observed:
                “Jurisdiction to consider errors arising under a particular judgment of the trial court is
                conferred on the appellate court by the timely filing of a notice of appeal. [Citation.] If
                the defendant fails to appeal from the judgment, this court has no authority to review a
                claim of error unless the judgment was void, in which case the error may be corrected at
                any time. [Citation.] An appeal from a sentence entered upon revocation of probation
                does not revive voidable errors in guilty plea proceedings. [Citation.]” Id.
       With regard to the public defender fee in particular, the court noted that “[t]he trial court’s
       failure to conduct a hearing prior to ordering reimbursement does not defeat its jurisdiction, but
       constitutes an erroneous exercise of power.” Id. Thus, “a reimbursement order entered without
       a hearing is voidable, not void.” Id. Because the defendant failed to timely appeal the public
       defender fee when it was imposed, the court found that it lacked jurisdiction to consider it. Id.
¶ 30        Here, as in Morrison, the order providing that defendant pay a public defender fee was, at
       most, voidable. Thus, for this court to consider whether the fee was properly imposed,
       defendant had to timely appeal from the order imposing it. Defendant did not. See Ill. S. Ct. R.
       606(b) (eff. Mar. 20, 2009). Accordingly, this court lacks jurisdiction to rectify any error that




                                                    -7-
       arose when the court imposed the public defender fee. 6

¶ 31                                      E. Probation Fees
¶ 32       Section 5-6-3 of the Unified Code (730 ILCS 5/5-6-3 (West 2010)) provides that “[t]he
       court shall impose upon an offender sentenced to probation *** as a condition of such
       probation *** a fee of $50 for each month of probation *** ordered by the court.” This section
       further indicates that “[t]he fee shall be imposed only upon an offender who is actively
       supervised by the probation and court services department.” Id.
¶ 33       Here, the parties agree, and the record reflects, that defendant was not actively supervised
       by the probation department for the entire 18 months of his probation. Accordingly, because
       we do not know for how long defendant was supervised, we, as the parties suggest, remand for
       the appropriate reduction of probation fees.

¶ 34                                        F. Delinquency Fee
¶ 35        Section 27.2(gg) of the Clerks of Court Act (705 ILCS 105/27.2(gg) (West 2010)) permits
       the imposition of a delinquency fee. Specifically, it provides:
                    “Unless a court ordered payment schedule is implemented or the fee requirements
                of this Section are waived pursuant to court order, the clerk of the court may add to any
                unpaid fees and costs under this Section a delinquency amount equal to 5% of the
                unpaid fees that remain unpaid after 30 days, 10% of the unpaid fees that remain unpaid
                after 60 days, and 15% of the unpaid fees that remain unpaid after 90 days.” Id.
¶ 36        Here, the parties agree that defendant was assessed a delinquency fee of $718. This fee was
       based on the total amount of fines and fees imposed, i.e., $2,394. Because this amount does not
       take into consideration the $5-per-day credit and the reduced probation fees, we must remand
       for the circuit clerk to recalculate any delinquency fee based upon the modified amount of fines
       and fees.

¶ 37                               G. Summary of Fines and Fees
¶ 38       In conclusion, we determine that $307 must be credited against defendant’s fines for the
       time he served in custody before sentencing and that defendant’s Violent Crime Victims
       Assistance Fund fine must be $32. We vacate the probation and delinquency fees and remand
       the cause for recalculations. We also determine that, because we lack jurisdiction to consider
       defendant’s public defender fee, we cannot modify it in any way.

¶ 39                                   III. CONCLUSION
¶ 40      For the above-stated reasons, the judgment of the circuit court of Lake County is affirmed
       as modified in part and vacated in part, and the cause is remanded for further proceedings


           6
            As an aside, we note that we are able to correct the other assessments because, as imposed, they are
       void. People v. Thompson, 209 Ill. 2d 19, 27 (2004) (void order may be attacked at any time); People v.
       Arna, 168 Ill. 2d 107, 113 (1995) (sentencing order containing a fine contrary to statute is void). Also,
       defendant could seek the $5-per-day credit at any time. People v. Caballero, 228 Ill. 2d 79, 88 (2008).
                                                       -8-
       consistent with this court’s opinion.

¶ 41      Affirmed as modified in part and vacated in part; cause remanded.




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