                                Illinois Official Reports

                                       Appellate Court



              People ex rel. Director of the Department of Corrections v. Melton,
                                   2014 IL App (4th) 130700



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS ex rel. THE
Caption                   DIRECTOR OF THE DEPARTMENT OF CORRECTIONS,
                          Plaintiff-Appellee, v. JOHNNIE MELTON, Defendant-Appellant.


District & No.            Fourth District
                          Docket No. 4-13-0700


Filed                     September 4, 2014


Held                       The judgment entered against defendant for reimbursement of the
(Note: This syllabus costs the State incurred for his incarceration was upheld over his
constitutes no part of the contentions that he was denied his right to due process and effective
opinion of the court but assistance of counsel, and that the money in his trust account came
has been prepared by the from an award for the wrongful death of his mother and was exempt
Reporter of Decisions from attachment, since the State has a right to seek reimbursement for
for the convenience of the cost of his incarceration pursuant to section 3-7-6 of the Unified
the reader.)               Code of Corrections, no due-process violation occurred in defendant’s
                           case, he could not rely on a claim of ineffective assistance of counsel
                           in the civil action seeking reimbursement for cost of his incarceration,
                           and his complaints with respect to creating a bank account and the
                           living conditions in the prison were not relevant to the instant
                           proceedings.


Decision Under            Appeal from the Circuit Court of Logan County, No. 13-MR-28; the
Review                    Hon. William A. Yoder, Judge, presiding.



Judgment                  Affirmed.
     Counsel on               Johnnie Melton, of Lincoln, appellant pro se.
     Appeal
                              Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                              Solicitor General, and Clifford W. Berlow, Assistant Attorney
                              General, of counsel), for appellee.



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


                                               OPINION


¶1          In February 2013, plaintiff, the People of the State of Illinois ex rel. the Director of the
       Department of Corrections (hereinafter, the State), filed a complaint against defendant,
       Johnnie Melton, for reimbursement of costs incurred by his incarceration. In May 2013, the
       trial court found the State was entitled to judgment in the amount of $19,925.89. In June 2013,
       defendant filed a pro se motion to reconsider, which the court denied.
¶2          On appeal, defendant argues he was denied his right to due process and the effective
       assistance of counsel. We affirm.

¶3                                           I. BACKGROUND
¶4          In February 2013, the State, by the Illinois Attorney General, filed a complaint against
       defendant, an inmate at Logan Correctional Center. The complaint alleged the Department of
       Corrections provided care, custody, treatment, or rehabilitation for defendant from October 28,
       2011, through January 8, 2013, in the sum of $19,925.89. Pursuant to section 3-7-6(d) of the
       Unified Code of Corrections (Unified Code) (730 ILCS 5/3-7-6(d) (West 2012)), the State
       sought reimbursement for the expenses incurred by defendant’s incarceration. The State
       alleged defendant had assets that could satisfy all or part of a judgment.
¶5          The State also filed a motion for order for attachment pursuant to section 4-101 of the Code
       of Civil Procedure (Procedure Code) (735 ILCS 5/4-101 (West 2012)). The trial court entered
       the order, directing the trust fund at Logan Correctional Center to hold any of defendant’s
       property up to the amount of $19,925.89 until further order.
¶6          In May 2013, defense counsel filed an answer, arguing defendant’s trust account was
       traceable to an award for the wrongful death of his mother and exempt from attachment. The
       trial court found the State was entitled to judgment in the amount of $19,925.89 for the period
       of defendant’s incarceration from October 28, 2011, through January 8, 2013. The court also
       ordered the funds held pursuant to the order for attachment be distributed to the Department of
       Corrections.
¶7          In June 2013, defendant filed a pro se motion to reconsider, raising issues as to the
       assistance of counsel and the “squalid” and “unsafe” living conditions at the prison. Thereafter,

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       defense counsel filed a motion to withdraw. In August 2013, the trial court denied defendant’s
       motion to reconsider. This appeal followed.

¶8                                             II. ANALYSIS
¶9                                       A. Procedural Due Process
¶ 10       Defendant argues he was deprived of procedural due process when the trial court granted
       the State’s request for an order of prejudgment attachment of assets in his trust account without
       advance notice or a hearing. We disagree.
¶ 11       Under the Unified Code, the State has the right to seek reimbursement from prisoners for
       the cost of their incarceration. 730 ILCS 5/3-7-6(a) (West 2012). Our supreme court has noted
       “section 3-7-6(a) creates a broad liability for all committed persons to reimburse the
       Department [of Corrections].” People ex rel. Illinois Department of Corrections v. Hawkins,
       2011 IL 110792, ¶ 25, 952 N.E.2d 624. Section 3-7-6(d) states, as follows:
               “The Director [of the Department of Corrections], or the Director’s designee, may,
               when he or she knows or reasonably believes that a committed person, or the estate of
               that person, has assets which may be used to satisfy all or part of a judgment rendered
               under this Act *** provide for the forwarding to the Attorney General of a report on the
               committed person and that report shall contain a completed form under subsection
               (a-5) together with all other information available concerning the assets of the
               committed person and an estimate of the total expenses for that committed person, and
               authorize the Attorney General to institute proceedings to require the persons, or the
               estates of the persons, to reimburse the Department for the expenses incurred by their
               incarceration.” 730 ILCS 5/3-7-6(d) (West 2012).
       “When the state succeeds in obtaining a judgment against a person for the costs of his or her
       incarceration, the assets it can reach to satisfy that judgment are extensive.” People ex rel.
       Director of Corrections v. Booth, 215 Ill. 2d 416, 419, 830 N.E.2d 569, 570 (2005) (citing 730
       ILCS 5/3-7-6(e)(3) (West 2002)).
¶ 12       In the case sub judice, defendant argues the trial court’s decision granting the State’s
       motion for an order of attachment without prior notice or a hearing violated his right to
       procedural due process. “Attachment is a pretrial remedy wherein a defendant’s property is
       seized and held until the rights of the parties are determined in the principal action. [Citation.]
       The purpose of attachment is to permit a creditor to secure and hold a debtor’s property to
       satisfy a debt which the creditor hopes to prove.” Starr v. Gay, 354 Ill. App. 3d 610, 615, 822
       N.E.2d 89, 93-94 (2004). Section 4-101 of the Procedure Code permits attachment in 11
       specific circumstances, including “[w]hen the debtor is referred by the Department of
       Corrections to the Attorney General under Section 3-7-6 of the [Unified Code] to recover the
       expenses incurred as a result of that debtor’s cost of incarceration.” 735 ILCS 5/4-101 (West
       2012).
¶ 13       The United States Supreme Court has noted due process “is a flexible concept that varies
       with the particular situation.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). The Court has
       “held that some form of hearing is required before an individual is finally deprived of a
       property interest.” (Emphasis added.) Mathews v. Eldridge, 424 U.S. 319, 333 (1976). While
       the fundamental requirement of due process centers on the opportunity to be heard “at a
       meaningful time and in a meaningful manner” (Armstrong v. Manzo, 380 U.S. 545, 552


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       (1965)), the Supreme Court has rejected the notion that the state must always provide a hearing
       prior to the deprivation of property (Zinermon, 494 U.S. at 128). See also Mitchell v. W.T.
       Grant Co., 416 U.S. 600, 608-10 (1974) (finding a predeprivation notice and hearing are not
       always required for an attachment statute to satisfy due process). Instead, the Supreme Court
       has found that in certain circumstances “a statutory provision for a postdeprivation hearing ***
       satisfies due process.” Zinermon, 494 U.S. at 128.
¶ 14       In regard to the attachment of property, section 4-114 of the Procedure Code provides the
       service of an attachment order “shall be made as soon as possible after the entry of the order for
       attachment upon the property described in the order, but in no event later than 5 days
       thereafter.” 735 ILCS 5/4-114 (West 2012). Also, section 4-137 of the Procedure Code
       provides for a prompt hearing on the order for attachment upon a motion by the defendant. 735
       ILCS 5/4-137 (West 2012).
¶ 15       We find defendant received all the process he was due in this case. In the context of a
       prison-reimbursement action, the costs of advance notice outweigh the benefits. The goal of
       requiring reimbursement seeks to shift the economic burden of incarceration from the public to
       the prisoner. Preattachment notice and hearing in this context would enable the prisoner to
       conceal, transfer, or otherwise dispose of the assets subject to garnishment prior to a final
       judgment. See Mitchell, 416 U.S. at 609 (stating “[t]he danger of destruction or alienation
       cannot be guarded against if notice and a hearing before seizure are supplied”); Lind v.
       Midland Funding, L.L.C., 688 F.3d 402, 407-08 (8th Cir. 2012) (stating “postponing notice
       and hearing until attachment has occurred generally serves a creditor’s interest in preventing
       the waste or concealment of a debtor’s assets”). The opportunity to conceal funds is heightened
       in the digital age, where assets can be transferred anywhere in the world at the click of a mouse.
¶ 16       We also note attachment does not constitute a permanent deprivation of a prisoner’s
       property. Instead, it preserves the status quo until such time as the action can be adjudicated.
       The record indicates the February 2013 order of attachment was served on defendant on the
       same day as it was entered. Defendant requested a hearing, and the trial court conducted a
       hearing on the reimbursement issue in May 2013. As the requirements of notice and
       postattachment hearing provided defendant the opportunity to contest his underlying liability
       and the propriety of the attachment of certain property, we find no due-process violation.

¶ 17                                       B. Assistance of Counsel
¶ 18        Defendant argues the performance of defense counsel violated his sixth amendment right
       to counsel because it fell below the standard of reasonableness required by Strickland v.
       Washington, 466 U.S. 668, 687-88 (1984). However, the reimbursement action at issue here is
       a civil matter (Department of Corrections ex rel. People v. Adams, 278 Ill. App. 3d 803, 809,
       663 N.E.2d 1145, 1149 (1996)), and a claim of ineffective assistance of counsel under
       Strickland is ordinarily only available in criminal cases. See Ameritech Publishing of Illinois,
       Inc. v. Hadyeh, 362 Ill. App. 3d 56, 60, 839 N.E.2d 625, 630 (2005) (stating the “[s]tandards
       applicable to claims of ineffective assistance of counsel do not apply to a petitioner’s claims of
       ineffective assistance of counsel in connection with a judgment under the [Procedure Code], as
       they might in criminal proceedings”); In re D.B., 246 Ill. App. 3d 484, 492, 615 N.E.2d 1336,
       1342 (1993). A narrow exception applies when a civil statute expressly guarantees a civil
       litigant the right to counsel (In re Commitment of Dodge, 2013 IL App (1st) 113603, ¶ 20, 989
       N.E.2d 1159), but section 3-7-6 of the Procedure Code does not provide for any such

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       guarantee. Thus, defendant cannot rely on a claim of ineffective assistance of counsel in this
       civil action.

¶ 19                                      C. Unrelated Claims
¶ 20       Defendant also raised unrelated complaints regarding his ability to create a bank account
       and the living conditions in the Department of Corrections. However, such complaints are not
       relevant to the reimbursement proceedings at issue here. First, defendant’s ability to create a
       bank account, and thereby deposit the wrongful-death funds, would not prevent the State from
       seeking reimbursement for the cost of incarceration. Second, defendant’s complaint about
       living conditions does not exempt him from his statutory obligation to reimburse the
       Department of Corrections for the costs of incarceration.

¶ 21                                      III. CONCLUSION
¶ 22      For the reasons stated, we affirm the trial court’s judgment.

¶ 23      Affirmed.




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