                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Somers, 2012 IL App (4th) 110180




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee v.
Caption                    BRANDON M. SOMERS, Defendant-Appellant.



District & No.             Fourth District
                           Docket Nos. 4-11-0180, 4-11-0186 cons.


Filed                      June 13, 2012


Held                       Defendant’s sentences on his convictions for unlawful possession of
(Note: This syllabus       cannabis with intent to deliver and unlawful possession of a controlled
constitutes no part of     substance were upheld, since the probation imposed on the first offense
the opinion of the court   was revoked following the second offense, while on probation he dropped
but has been prepared      out of treatment and continued to use drugs, and deterrence along with
by the Reporter of         defendant’s poor rehabilitative potential outweighed any mitigating
Decisions for the          factors, and as to defendant’s request to vacate the orders requiring
convenience of the         reimbursement of the public defender’s fee, the appellate court lacked
reader.)
                           jurisdiction to consider the order in the first case, but the fee imposed in
                           the second case without a hearing on defendant’s ability to pay was
                           vacated and remanded for such a hearing.


Decision Under             Appeal from the Circuit Court of Livingston County, Nos. 09-CF-63, 10-
Review                     CF-231; the Hon. Jennifer H. Bauknecht, Judge, presiding.



Judgment                   Affirmed in part and vacated in part; cause remanded with directions.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Molly A. Corrigan, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           Thomas J. Brown, State’s Attorney, of Pontiac (Patrick Delfino, Robert
                           J. Biderman, and James C. Majors, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE TURNER delivered the judgment of the court,
                           with opinion.
                           Justices Appleton and Pope concurred in the judgment and opinion.



                                             OPINION

¶1          In December 2009, defendant, Brandon M. Somers, pleaded guilty to single counts of
        unlawful possession with intent to deliver cannabis and unlawful possession of drug
        paraphernalia in case No. 09-CF-63. In March 2010, the trial court sentenced him to
        probation. In October 2010, defendant pleaded guilty to unlawful possession of a controlled
        substance in case No. 10-CF-231. In November 2010, the State filed a petition to revoke
        defendant’s probation in case No. 09-CF-63. In December 2010, the court revoked
        defendant’s probation and sentenced him to concurrent terms of two years and six months
        in prison on the drug-possession charges in both cases. The court also ordered him to pay
        $200 to reimburse the public defender in each case.
¶2          On appeal, defendant argues (1) his prison sentences were excessive and (2) the trial
        court’s orders requiring him to reimburse the public defender must be vacated. We affirm in
        part, vacate in part, and remand with directions.

¶3                                       I. BACKGROUND
¶4                                      A. Case No. 09-CF-63
¶5          In March 2009, the State charged defendant with one count of unlawful possession with
        intent to deliver cannabis (10 to 30 grams) (720 ILCS 550/5(c) (West 2008)) and one count
        of unlawful possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2008)). In April
        2009, the trial court appointed the public defender to represent defendant.
¶6          In December 2009, defendant pleaded guilty. The State’s factual basis indicated members
        of the Livingston County proactive unit went to a residence to speak with defendant
        regarding information that he had been selling cannabis. Defendant admitted having cannabis
        in the residence and consented to a search of a bedroom, which revealed a digital scale, a
        metal grinder with cannabis residue, two burnt cannabis cigarettes, a pill bottle with cannabis
        seeds, and a can with three bags of cannabis. Defendant also admitted selling cannabis. The

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       trial court found defendant knowingly and voluntarily pleaded guilty to the two charges.
¶7          In March 2010, the trial court sentenced defendant to a term of two years’ Treatment
       Alternatives for Safe Communities (TASC) probation. Along with imposing various fines
       and fees, the court also ordered him to pay $200 for the services of the public defender.

¶8                                   B. Case No. 10-CF-231
¶9         In September 2010, the State charged defendant with one count of unlawful possession
       of a controlled substance (720 ILCS 570/402(c) (West 2010)), alleging he knowingly
       possessed less than five grams of a substance containing alprazolam, a controlled substance.
       The trial court appointed the public defender to represent defendant.
¶ 10       In October 2010, defendant pleaded guilty. The State’s factual basis indicated police
       officers went to a residence to locate a subject who had been involved in an earlier traffic
       stop. Upon entering the second-floor residence, the officers detected a strong odor of burnt
       cannabis. A search warrant was obtained, and the ensuing search of a bedroom revealed a
       wooden box containing two blue pills identified as alprazolam. Later, defendant, who was
       present during the search, stated the bedroom and the box were his. The trial court found
       defendant knowingly and voluntarily pleaded guilty to the charge.

¶ 11                     C. Petition To Revoke in Case No. 09-CF-63
¶ 12      In November 2010, the State filed a petition to revoke defendant’s probation in case No.
       09-CF-63 based on the new charge and guilty plea in case No. 10-CF-231. In December
       2010, defendant admitted the allegations in the petition to revoke.

¶ 13                         D. Resentencing in Case No. 09-CF-63
                             and Sentencing in Case No. 10-CF-231
¶ 14       In December 2010, the trial court held a joint hearing on the resentencing in case No. 09-
       CF-63 and the sentencing in case No. 10-CF-231. The court revoked the TASC probation in
       case No. 09-CF-63 and resentenced defendant to two years and six months in prison. In its
       written sentencing judgment, the court indicated “all financial obligations previously
       imposed remain in full force [and] effect [with the] exception of [probation supervisory]
       fees[,] which are vacated this date.”
¶ 15       In case No. 10-CF-231, the trial court sentenced defendant to two years and six months
       in prison on the drug-possession conviction. The court ordered the sentence be served
       concurrent with the sentence imposed in case No. 09-CF-63. In addition to certain fines, fees,
       and assessments, the court also ordered defendant to pay $200 for the services of the public
       defender.
¶ 16       In December 2010, defendant filed motions to reconsider sentence, arguing the sentences
       were “unduly harsh and punitive” considering the evidence at trial and at sentencing as well
       as the factors in mitigation. In February 2011, the trial court denied the motions. These
       consolidated appeals followed.


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¶ 17                                        II. ANALYSIS
¶ 18                                         A. Sentencing
¶ 19        The Illinois Constitution mandates “[a]ll penalties shall be determined both according
       to the seriousness of the offense and with the objective of restoring the offender to useful
       citizenship.” Ill. Const. 1970, art. I, § 11. “ ‘In determining an appropriate sentence, a
       defendant’s history, character, and rehabilitative potential, along with the seriousness of the
       offense, the need to protect society, and the need for deterrence and punishment, must be
       equally weighed.’ ” People v. Hestand, 362 Ill. App. 3d 272, 281, 838 N.E.2d 318, 326
       (2005) (quoting People v. Hernandez, 319 Ill. App. 3d 520, 529, 745 N.E.2d 673, 681
       (2001)).
¶ 20        A trial court has broad discretion in imposing a sentence. People v. Chester, 409 Ill. App.
       3d 442, 450, 949 N.E.2d 1111, 1118 (2011). “A reviewing court gives great deference to the
       trial court’s sentencing decision because the trial judge, having observed the defendant and
       the proceedings, has a far better opportunity to consider these factors than the reviewing
       court, which must rely on the cold record.” People v. Evangelista, 393 Ill. App. 3d 395, 398,
       912 N.E.2d 1242, 1245 (2009). Thus, the court’s decision as to the appropriate sentence will
       not be overturned on appeal “unless the trial court abused its discretion and the sentence was
       manifestly disproportionate to the nature of the case.” People v. Thrasher, 383 Ill. App. 3d
       363, 371, 890 N.E.2d 715, 722 (2008).
¶ 21        In case No. 09-CF-63, defendant pleaded guilty to unlawful possession with intent to
       deliver cannabis (10 to 30 grams) (720 ILCS 550/5(c) (West 2008)), a Class 4 felony. A
       defendant convicted of a Class 4 felony is subject to a sentencing range of one to three years
       in prison. 730 ILCS 5/5-8-1(a)(7) (West 2008). Defendant received a sentence of probation,
       which was later revoked. When a sentence of probation has been revoked, the trial court
       “may impose any other sentence that was available *** at the time of the initial sentencing.”
       730 ILCS 5/5-6-4(e) (West 2008). Defendant received a sentence of two years and six
       months in prison.
¶ 22        In case No. 10-CF-231, defendant pleaded guilty to unlawful possession of a controlled
       substance (720 ILCS 570/402(c) (West 2008)), also a Class 4 felony. Because of defendant’s
       prior conviction on a Class 4 felony offense, he was subject to an extended-term sentence.
       A defendant subject to an extended term as a Class 4 felon may be sentenced to a term of up
       to six years in prison. 730 ILCS 5/5-8-2(a)(6) (West 2008). As the trial court’s sentence of
       two years and six months in prison on both charges fell within the relevant sentencing ranges,
       we will not disturb the sentences absent an abuse of discretion.
¶ 23        Defendant argues the trial court abused its discretion given that he took responsibility for
       his crimes by pleading guilty and admitting the allegations in the petition to revoke
       probation. Further, defendant states he expressed remorse, had the potential for rehabilitation,
       had a history of employment, and made efforts to comply with the terms of his probation.
¶ 24        “A trial court is presumed to have considered all of the relevant evidence of mitigation
       before it.” People v. Bailey, 409 Ill. App. 3d 574, 594, 948 N.E.2d 690, 710 (2011).
       Moreover, this court has noted “drug addiction is not necessarily a mitigating factor

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       [citation], and the trial court was free to find defendant’s remorse to be incredible.” People
       v. Newbill, 374 Ill. App. 3d 847, 854, 873 N.E.2d 408, 414 (2007).
¶ 25       While defendant was only 19 years of age at sentencing, pleaded guilty, expressed
       remorse, and had some part-time employment, his conduct on probation evinces his poor
       rehabilitative potential. See People v. Young, 138 Ill. App. 3d 130, 140, 485 N.E.2d 443, 449
       (1985) (“Conduct which leads to revocation of probation has been regarded as a ‘breach’ of
       the court’s trust, or as otherwise causing the court to lose confidence in the defendant’s
       rehabilitative potential.”). The trial court noted defendant, while still only 19, continued “to
       make very poor decisions.” Further, the court found defendant’s actions spoke louder than
       his words. While on probation, defendant dropped out of treatment and continued to use
       drugs. The court also pointed out deterrence was “a strong factor.” The need to deter others
       from dealing drugs, along with defendant’s poor rehabilitative potential, outweighed any
       mitigating factors. We find the trial court did not abuse its discretion in sentencing defendant
       to two years and six months in prison on each felony conviction.

¶ 26                           B. Public-Defender Reimbursement
¶ 27       Defendant argues the two orders requiring him to reimburse the county for the public
       defender must be vacated because the trial court never conducted a hearing to determine his
       ability to pay prior to the entry of those orders. The State agrees the orders requiring
       defendant to reimburse the county must be vacated. We, however, agree only as to case No.
       10-CF-231, as we find we have no jurisdiction to consider the propriety of the reimbursement
       order in case No. 09-CF-63.
¶ 28       Section 113-3.1(a) of the Code of Criminal Procedure of 1963 (Code) provides, in part,
       as follows:
           “Whenever *** the court appoints counsel to represent a defendant, the court may order
           the defendant to pay to the Clerk of the Circuit Court a reasonable sum to reimburse
           either the county or the State for such representation. In a hearing to determine the
           amount of the payment, the court shall consider the affidavit prepared by the defendant
           under [s]ection 113-3 of this Code and any other information pertaining to the
           defendant’s financial circumstances which may be submitted by the parties. Such hearing
           shall be conducted on the court’s own motion or on motion of the State’s Attorney at any
           time after the appointment of counsel but 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 2008).
       Section 113-3.1 requires the trial court to conduct a hearing into a defendant’s financial
       circumstances and find an ability to pay before ordering him to pay reimbursement for his
       appointed counsel. People v. Love, 177 Ill. 2d 550, 555-56, 687 N.E.2d 32, 35 (1997). “[T]he
       defendant must (1) have notice that the trial court is considering imposing a payment order
       under section 113-3.1 of the Code and (2) be given the opportunity to present evidence or
       argument regarding his ability to pay and other relevant circumstances.” People v. Barbosa,
       365 Ill. App. 3d 297, 301, 849 N.E.2d 152, 154 (2006).




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¶ 29                                       1. Case No. 09-CF-63
¶ 30        In case No. 09-CF-63, the trial court appointed the public defender to represent defendant
       in April 2009. At sentencing in March 2010, the court sentenced defendant to probation and
       ordered him to pay $200 for the services of the public defender. Defendant did not appeal
       that judgment.
¶ 31        Illinois Supreme Court Rule 604(b) (eff. July 1, 2006) allows a defendant sentenced to
       probation to appeal the judgment of conviction, the conditions of the sentence, or both. “The
       imposition of a public defender fee as a condition of defendant’s sentence of probation is
       appealable.” People v. Bell, 296 Ill. App. 3d 146, 155, 694 N.E.2d 673, 680 (1998). Illinois
       Supreme Court Rule 606 (eff. Mar. 20, 2009) provides a notice of appeal is jurisdictional and
       must be filed within 30 days after the entry of the final judgment appealed.
¶ 32        In People v. Jolliff, 183 Ill. App. 3d 962, 965, 539 N.E.2d 913, 915 (1989), the trial court
       sentenced the defendant to probation and ordered him to reimburse the county for court-
       appointed counsel. The defendant did not appeal. Later, the defendant was found to have
       violated his probation, and the court resentenced him to prison and again ordered him to
       reimburse the county for court-appointed counsel. Jolliff, 183 Ill. App. 3d at 966, 539 N.E.2d
       at 916.
¶ 33        On appeal, the defendant argued the trial court erred in ordering him to reimburse the
       county without holding a proper hearing and determining his ability to pay. Jolliff, 183 Ill.
       App. 3d at 971, 539 N.E.2d at 919. The State argued the defendant waived the issue by
       failing to appeal after the sentence of probation was imposed. Jolliff, 183 Ill. App. 3d at 971,
       539 N.E.2d at 919.
¶ 34        This court found only one order directing reimbursement was entered at the first
       sentencing hearing. Jolliff, 183 Ill. App. 3d at 971, 539 N.E.2d at 919. Because the
       reimbursement issue did not arise in the probation revocation proceedings, we found
       defendant’s claim of error was not timely. Jolliff, 183 Ill. App. 3d at 971, 539 N.E.2d at 919.
¶ 35        Here, defendant did not appeal his sentence in case No. 09-CF-63, which included the
       reimbursement order. Later, when the trial court revoked defendant’s probation, it stated “all
       financial obligations previously imposed remain in full force [and] effect.” Thus, it does not
       appear the court expressly reimposed the public-defender fee in a manner to take this case
       outside the ambit of Jolliff. As such, we are without jurisdiction to consider the propriety of
       the trial court’s imposition of the public-defender fee in case No. 09-CF-63.

¶ 36                                   2. Case No. 10-CF-231
¶ 37        In case No. 10-CF-231, the trial court appointed the public defender to represent
       defendant in September 2010. In December 2010, the court ordered defendant to pay $200
       for the services of the public defender. However, the court did not hold a hearing or mention
       the public-defender fee prior to imposing the fee. The record fails to show defendant was
       given notice that the court was considering imposing the reimbursement payment and he was
       not given an opportunity to present evidence or be heard regarding the imposition of the fee.
       The court’s failure to follow the procedures required by section 113-3.1 requires us to vacate
       the reimbursement portion of the sentencing order in case No. 10-CF-231. See Barbosa, 365

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       Ill. App. 3d at 301-02, 849 N.E.2d at 155.
¶ 38        As noted, the State agrees the reimbursement order must be vacated because the trial
       court failed to conduct a proper hearing to determine defendant’s ability to pay. While
       conceding the error, the State contends the cause should be remanded for a new hearing on
       the public-defender reimbursement, citing this court’s decision in People v. Bass, 351 Ill.
       App. 3d 1064, 1070, 815 N.E.2d 462, 468 (2004). Defendant, however, argues in his reply
       brief that our supreme court’s recent decision in People v. Gutierrez, 2012 IL 111590, 962
       N.E.2d 437, requires us to vacate the fee without remanding the cause for a new hearing.
¶ 39        In Gutierrez, 2012 IL 111590, ¶ 3, 962 N.E.2d at 438, the trial court sentenced the
       defendant to prison, and the circuit clerk imposed a $250 public-defender fee. On appeal, the
       appellate court agreed with the defendant that the fee had to be vacated because he had not
       been provided with notice and a hearing before the fee was imposed. Gutierrez, 2012 IL
       111590, ¶ 4, 962 N.E.2d at 438. The court disagreed with the defendant’s argument that the
       fee should be vacated outright and not remanded for a hearing. Gutierrez, 2012 IL 111590,
       ¶ 4, 962 N.E.2d at 439. Instead, and despite the fact that the 90-day time period had expired,
       the appellate court remanded the cause for a hearing. Gutierrez, 2012 IL 111590, ¶ 4, 962
       N.E.2d at 439.
¶ 40        On appeal to the supreme court, the defendant argued the public-defender fee should have
       been vacated without remanding the cause for a hearing. Gutierrez, 2012 IL 111590, ¶ 19,
       962 N.E.2d at 442. Based on the statutory language, the defendant contended the hearing
       could take place no later than 90 days after the entry of the final order, and since the appellate
       court’s remand order came almost two years after the trial court’s final order had been
       entered, any hearing would not happen “ ‘within the specified time period.’ ” Gutierrez, 2012
       IL 111590, ¶ 19, 962 N.E.2d at 442 (quoting Love, 177 Ill. 2d at 556, 687 N.E.2d at 35). The
       State, however, argued “the 90-day period should be viewed as directory rather than
       mandatory.” Gutierrez, 2012 IL 111590, ¶ 20, 962 N.E.2d at 442.
¶ 41        The supreme court agreed the fee should be vacated but found it unnecessary to resolve
       whether the 90-day time limit was mandatory or directory. Gutierrez, 2012 IL 111590, ¶ 21,
       962 N.E.2d at 442-43. Instead, the court focused on the fact that neither the State nor the trial
       court made a motion for a hearing; the circuit clerk just imposed the fee on its own.
       Gutierrez, 2012 IL 111590, ¶ 21, 962 N.E.2d at 443. Since neither the State nor the trial court
       sought the public-defender fee, the court concluded the fee should have been vacated
       outright. Gutierrez, 2012 IL 111590, ¶ 24, 962 N.E.2d at 443.
¶ 42        In People v. Fitzpatrick, 2011 IL App (2d) 100463, ¶ 1, 960 N.E.2d 709, 710, the trial
       court ordered the defendant to pay $750 to reimburse the public defender. On appeal, the
       appellate court noted the trial court failed to conduct a Love hearing and agreed with the State
       that the reimbursement order must be vacated. Fitzpatrick, 2011 IL App (2d) 100463, ¶ 13,
       960 N.E.2d at 715.
¶ 43        While the State asked that the case be remanded for a hearing, the defendant argued no
       hearing could be ordered because the 90-day period had expired. Fitzpatrick, 2011 IL App
       (2d) 100463, ¶ 13, 960 N.E.2d at 715. The appellate court disagreed, citing the supreme
       court’s decision in Love to remand for a hearing even though more than 90 days had passed


                                                  -7-
       since the trial court’s final order. Fitzpatrick, 2011 IL App (2d) 100463, ¶ 13, 960 N.E.2d
       at 715. The Second District followed Love and remanded for a hearing. Fitzpatrick, 2011 IL
       App (2d) 100463, ¶ 13, 960 N.E.2d at 715.
¶ 44       We note Fitzpatrick was decided in November 2011. The supreme court handed down
       its Gutierrez decision in January 2012. Further, the supreme court pointed out that appellate
       courts, citing Love, had routinely rejected the argument that the passage of the 90-day period
       precluded remand for a hearing. Gutierrez, 2012 IL 111590, ¶ 18, 962 N.E.2d at 442. The
       supreme court cautioned, however, that the timeliness issue was not raised in Love and stated
       “Love should not be read as deciding the issue either way.” Gutierrez, 2012 IL 111590, ¶ 18,
       962 N.E.2d at 442. We also note the supreme court has granted a petition for leave to appeal
       in Fitzpatrick. People v. Fitzpatrick, 2012 IL 113449, 963 N.E.2d 247.
¶ 45       We find this case distinguishable from Gutierrez. Here, the trial court imposed the
       public-defender fee, not the circuit clerk. Moreover, the court ordered the fee at the
       sentencing hearing, which was before the case had been disposed of for purposes of the 90-
       day period set forth in the statute. While the court was deficient in following the Love
       requirements, it did indicate its intent to order reimbursement and did so within the
       applicable time frame. As such, remand for a proper hearing pursuant to section 113-3.1 of
       the Code is appropriate in case No. 10-CF-231.

¶ 46                                   III. CONCLUSION
¶ 47       For the reasons stated, we affirm in part, vacate in part, and remand with directions. As
       part of our judgment, we award the State its $50 statutory assessment against defendant as
       costs of this appeal.

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




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