                                                                         Digitally signed by
                                                                         Reporter of
                                                                         Decisions
                        Illinois Official Reports                        Reason: I attest to
                                                                         the accuracy and
                                                                         integrity of this
                                                                         document
                               Appellate Court                           Date: 2018.02.22
                                                                         11:47:39 -06'00'



                  People v. Rios-Salazar, 2017 IL App (3d) 150524



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            AARON RIOS-SALAZAR, Defendant-Appellant.



District & No.     Third District
                   Docket No. 3-15-0524



Filed              November 20, 2017



Decision Under     Appeal from the Circuit Court of Will County, No. 10-CF-2114; the
Review             Hon. Carla Alessio-Policandriotes, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Peter A. Carusona, and Dimitrios G. Golfis, of
Appeal             State Appellate Defender’s Office, of Ottawa, for appellant.

                   James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
                   Lawrence M. Bauer, and Dawn D. Duffy, of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE SCHMIDT delivered the judgment of the court, with
                   opinion.
                   Justice Wright specially concurred, with opinion.
                   Justice Lytton dissented, with opinion.
                                             OPINION

¶1       Defendant, Aaron Rios-Salazar, after being sentenced to 24 years for predatory criminal
     sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)), argues only that his
     defense counsel was ineffective for failing to object to $57 in fines. We affirm.

¶2                                              FACTS
¶3       Defendant pled guilty to predatory criminal sexual assault of a child (720 ILCS
     5/12-14.1(a)(1) (West 2010)) for an offense that occurred between February 1 and
     August 30, 2010. In return, the State nol-prossed two counts of predatory criminal sexual
     assault of a child, three counts of criminal sexual assault, and one count of aggravated
     criminal sexual assault. The circuit court sentenced defendant to 24 years’ imprisonment.
¶4       A cost sheet signed by the circuit court, bearing the file-stamped date of July 24, 2015,
     appears in the record. The cost sheet shows that the court imposed $1587 in assessments,
     including a $100 Violent Crime Victims Assistance Fund (VCVA) assessment and a $25
     “house fee.” A separate document, which is unsigned and appears to be a computer printout,
     also lists the monetary assessments. That document describes the $25 “house fee” as “judicial
     facilitie[s].”

¶5                                            ANALYSIS
¶6        Defendant argues that his trial counsel was ineffective for failing to object to the $25
     judicial facilities fee and the $100 VCVA assessment. He contends that the assessments
     violated ex post facto principles and, had counsel objected, the $25 judicial facilities fee
     would have been vacated and the $100 VCVA assessment would have been reduced to $68.
     Essentially, defendant’s argument is that his trial counsel was constitutionally deficient for
     failing to object to $57 in improper fines. By challenging the fines on the basis of ineffective
     assistance of counsel rather than directly, defendant implicitly concedes that he forfeited the
     issue. For the reasons stated below, we find no reason to determine whether the contested
     charges are fines or fees, appropriate or inappropriate.
¶7        To state a claim for ineffective assistance of counsel, a defendant must show that (1)
     counsel’s performance was deficient and (2) the deficient performance prejudiced defendant.
     Strickland v. Washington, 466 U.S. 668, 687 (1984). “In order to satisfy the
     deficient-performance prong of Strickland, a defendant must show that his counsel’s
     performance was so inadequate that counsel was not functioning as the ‘counsel’ guaranteed
     by the sixth amendment.” People v. Smith, 195 Ill. 2d 179, 188 (2000).
¶8        Even accepting defendant’s argument that $57 of his fines were improper, we find that
     trial counsel’s failure to object to this de minimis amount of monetary assessments did not
     constitute constitutionally deficient performance. That is, counsel’s failure to challenge $57
     in allegedly improper fines did not render counsel’s performance “so inadequate that counsel
     was not functioning as the ‘counsel’ guaranteed by the sixth amendment.” Id. Not every
     mistake of counsel constitutes deficient performance. People v. Easley, 192 Ill. 2d 307, 344
     (2000) (“[I]neffective assistance of counsel refers to competent, not perfect,
     representation.”). In the instant case, defendant pled guilty to a Class X felony and received a



                                                -2-
       sentence of 24 years’ imprisonment. Counsel’s failure to object to de minimis fines is simply
       not an error of constitutional magnitude.
¶9         In reaching our holding, I note that there is no right to counsel under the sixth amendment
       of the United States Constitution in cases where a defendant is not sentenced to
       imprisonment. Scott v. Illinois, 440 U.S. 367, 373-74 (1979). Even the statutory right to
       counsel in Illinois, which is broader than the right to counsel guaranteed by the sixth
       amendment, does not apply in cases punishable by fine only. 725 ILCS 5/113-3(b) (West
       2010). The fact that there is no right to counsel in cases punishable only by fines supports our
       holding that counsel’s failure to object to certain de minimis fines did not render his
       representation of defendant constitutionally deficient.1

¶ 10                                       CONCLUSION
¶ 11      For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 12      Affirmed.

¶ 13        JUSTICE WRIGHT, specially concurring:
¶ 14        I agree that the judgment should be affirmed. However, I reach the same conclusion as
       the author for different reasons. To show ineffective assistance of counsel, defendant must
       first establish prejudice. In my view, prejudice is simply not present in this record.
¶ 15        Here, the criminal cost sheet contains multiple errors by the trial court. I agree the court
       incorrectly calculated the VCVA fine and should not have imposed the $25 Judicial Facilities
       fine. However, I also notice from the face of the criminal costs sheet that the trial court
       neglected to order defendant to pay the mandatory criminal surcharge calculated at the rate of
       $10/$40 in all punitive fines imposed. 730 ILCS 5/5-9-1(c) (West 2010). I recognize the
       mandatory surcharge cannot be added to defendant’s sentence at this point.
¶ 16        Assuming defendant has correctly calculated the basis for the VCVA fine in the amount
       of $68, I point out that the criminal surcharge in this case would have increased defendant’s
       punitive fines by at least $170 ($10 x 17 $40 units). The bottom line is that defense counsel’s
       failure to challenge the trial court’s sentencing order, regarding monetary issues, resulted in a
       savings to defendant of at least $113. Based on this record, I conclude defendant received a
       bargain and was not overcharged by $57 as defendant contends on appeal. On this basis, I
       disagree that ineffective assistance of counsel is present in this record and would deny
       defendant the relief requested.
¶ 17        For these reasons, I specially concur and agree with the result in this case only.

¶ 18      JUSTICE LYTTON, dissenting:
¶ 19      I disagree with the majority’s characterization of the improper fines in this case as
       “de minimis.” A fine imposed in direct contravention of the law is an error of constitutional
       magnitude; here, it violates ex post facto principles and should be addressed. Had trial
       counsel raised the issue below, the fines and fees order would have been corrected. Nothing
       prevents us from doing the same on appeal.

          1
           The author is alone in this observation, as witnessed by the special concurrence and dissent.

                                                     -3-
¶ 20       Both the federal and state constitutions prohibit ex post facto laws. See U.S. Const., art. I,
       § 9; Ill. Const. 1970, art. I, § 16. A criminal law violates ex post facto principles if a
       legislative change is retroactively applied to a defendant and increases the penalty by which a
       crime is punishable. Hadley v. Montes, 379 Ill. App. 3d 405, 409 (2008). To establish an
       ex post facto violation, a defendant must show (1) a legislative change, (2) the change
       imposed a punishment, and (3) the punishment is greater than the punishment that existed at
       the time the crime was committed. Id. Fines are subject to the prohibition against
       ex post facto laws. People v. Dalton, 406 Ill. App. 3d 158, 163 (2010).
¶ 21       In 2010, when defendant committed the offense in this case, the Violent Crime Victims
       Assistance Act (Act) (725 ILCS 240/1 et seq. (West 2010)) imposed a “penalty of $4 for
       each $40, or fraction thereof, of [other] fine[s] imposed.” 725 ILCS 240/10(b) (West 2010).
       This penalty is a fine. See People v. Vlahon, 2012 IL App (4th) 110229, ¶¶ 35-38. Effective
       July 16, 2012, section 10 of the Act was amended by Public Act 97-816, which increased the
       fine to $100 for any felony conviction. Pub. Act 97-816 (eff. July 16, 2012) (amending 725
       ILCS 240/10(b)(1)).
¶ 22       Defendant was assessed a total of $645 in fines. Therefore, the VCVA fine applicable
       under the 2010 statute was $682 rather than $100. See Vlahon, 2012 IL App (4th) 110229,
       ¶ 38 (proper method of calculating VCVA fine). Because the amended version of section
       10(b) was not yet in effect at the time of the offense and the fine is now greater than the
       punishment that previously existed, the trial court violated ex post facto principles by
       assessing a $100 VCVA fine against defendant.
¶ 23       The $25 fine for judicial facilities also violates ex post facto principles. Section 5-1101.3
       of the Counties Code provides for “a judicial facilities fee to be used for the building of new
       judicial facilities,” not to exceed $30. 55 ILCS 5/5-1101.3 (West 2016). This assessment is a
       fine. See People v. Johnson, 2015 IL App (3d) 140364 (appendix); 55 ILCS 5/5-1101.3(b)
       (West 2016) (assessment is not an expense incurred by the State for prosecuting the
       defendant). Again, the statute was not in effect at the time defendant committed the offense.
       Thus, the trial court’s imposition of the fine is an ex post facto violation.
¶ 24       The majority declines to review these fines for error. Instead, it concludes that, even if the
       fines were imposed in violation of the law, the amounts were de minimis and any error need
       not be addressed. I disagree. The error here is more than a simple mistake in calculating a
       fee. Rather, it is the retroactive application of two statutes that increased the penalty by
       which defendant’s crime was punishable. Contrary to the majority, I do not believe a
       de minimis exception can be placed on such a constitutional violation. Notably, this supposed
       exception is difficult to implement, as it requires the very subjective process of determining
       when the amount in error becomes significant rather than de minimis, or a mere trifle. See
       Black’s Law Dictionary 524 (10th ed. 2014) (defining de minimis as “trifling”). More
       compelling, a de minimis exception is inconsistent with the constitutional concerns and
       concepts of fairness inherent in ex post facto principles. People v. Coleman, 111 Ill. 2d 87,
       93-94 (1986). “An error may involve a relatively small amount of money or unimportant
       matter, but still affect the integrity of the judicial process and the fairness of the proceeding
       ***.” People v. Lewis, 234 Ill. 2d 32, 48 (2009).

          2
           $645 divided by $40 equals $16.125, plus a “fraction thereof,” multiplied by $4 equals $68. 725
       ILCS 240/10(b) (West 2010).

                                                    -4-
¶ 25       The challenged fines were imposed in violation of ex post facto principles. In light of this
       constitutional error, the VCVA fine should be reduced to $68 and the $25 judicial facilities
       fine should be vacated.




                                                  -5-
