                                        2019 IL App (3d) 170028

                                 Opinion filed May 7, 2019
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2019

     THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
     ILLINOIS,                                       )       of the 12th Judicial Circuit,
                                                     )       Will County, Illinois,
            Plaintiff-Appellee,                      )
                                                     )       Appeal No. 3-17-0028
            v.                                       )       Circuit No. 14-CF-2393
                                                     )
     ARTIS J. ROSS,                                  )       Honorable
                                                     )       Edward A. Burmila Jr.,
            Defendant-Appellant.                     )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion
           Justice Holdridge concurred in the judgment and opinion.
           Presiding Justice Schmidt dissented, with opinion.
     _____________________________________________________________________________

                                               OPINION

¶1          Defendant, Artis J. Ross, appeals following the revocation of his probation and

     subsequent sentencing to the Department of Corrections. He argues that a portion of his

     probation fee, which he paid in full, should be refunded because his probation was revoked. We

     agree and remand so the circuit court may enter an order refunding defendant the sum of $440.

¶2                                         I. BACKGROUND
¶3          The State charged defendant with unlawful possession of a controlled substance (720

     ILCS 570/402(c) (West 2014)). On February 16, 2016, the court sentenced defendant to a term of

     30 months’ probation.

¶4          The court also ordered defendant to pay $1664 in monetary assessments. Defendant

     received $1060 in monetary presentence custody credit, reducing his costs subtotal to $604. The

     court then imposed a probation fee of $600. The resulting sum of $1204 was fully offset by

     defendant’s bond deposit of $2000. The assessments order thus provided defendant with a refund

     of $796.

¶5          On July 14, 2016, the State filed an amended petition to revoke defendant’s probation.

     On October 27, 2016, defendant admitted to the allegations in the petition, and the court revoked

     his probation. Defendant was remanded to custody on that date and remained in custody through

     his resentencing. On January 6, 2017, the court resentenced defendant to a term of 5½ years’

     imprisonment. The court did not issue a new monetary assessments order or otherwise modify its

     original assessments.

¶6                                              II. ANALYSIS

¶7          On appeal, defendant contends that the $600 probation fee imposed by the court, which

     was paid in full out of his bond deposit, contemplated 30 months of probation. Because

     defendant only spent eight months under the supervision of probation services, he argues that he

     is entitled to a $440 refund of this assessment. The State concedes that defendant is not obligated

     to pay a fee for time in which he was not on probation and that a person in his position would

     ordinarily be entitled to a refund. However, the State points out that defendant failed to raise this

     issue at any point in the circuit court and argues that the matter is therefore forfeited.




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¶8             Section 5-6-3(i) of the Unified Code of Corrections mandates that the circuit court shall

       impose “a fee of $50 for each month of probation or conditional discharge supervision or

       supervised community service ordered by the court, unless after determining the inability of the

       person sentenced to probation or conditional discharge or supervised community service to pay

       the fee, the court assesses a lesser fee.” 730 ILCS 5/5-6-3(i) (West 2016). That same subsection

       specifies that “[t]he fee shall be imposed only upon an offender who is actively supervised by the

       probation and court services department.” Id.

¶9             The court’s imposition of a $600 probation fee, following a sentence of 30 months’

       probation, contemplated a per month fee of $20. At that rate, defendant’s probation from March

       through October 2016 1 would result in a total fee of $160. Having paid the full $600 fee in

       advance, defendant was plainly entitled to a refund of $440, and we accept the State’s concession

       on that issue.

¶ 10           We next consider whether the court’s failure to order defendant’s refund amounted to

       second-prong plain error. In People v. Lewis, 234 Ill. 2d 32, 48-49 (2009), our supreme court

       held that the imposition of a street value fine without a hearing to determine the proper amount

       of that fine was second-prong plain error. The court rejected the appellate court’s application of a

       de minimis exception to the plain error rule, concluding:

                        “Plain-error review focuses on the fairness of a proceeding and the integrity of the

                        judicial process. [Citations.] An error may involve a relatively small amount of

                        money or unimportant matter, but still affect the integrity of the judicial process



               1
                Defendant was sentenced to probation on February 29, 2016 and remanded into the custody of
       the county jail on October 27, 2016. Defendant does not argue that the October fee should be prorated,
       and the State does not argue that defendant should be charged a fee for the single day in February. The
       parties agree that defendant was under the supervision of probation services for eight months, and we
       accept that agreement.
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                      and the fairness of the proceeding if the controversy is determined in an arbitrary

                      or unreasoned manner.

                              *** The trial court’s imposition of the street-value fine without any

                      evidentiary basis resulted in plain error.” Id. at 48.

       The statement of law made in Lewis has been cited approvingly by the supreme court as recently

       as 2017. People v. Fort, 2017 IL 118966, ¶ 19.

¶ 11          In the present case, the court did not address defendant’s fines and fees upon

       resentencing. No effort was made to consider the impact of his probation revocation on those

       monetary assessments. The error here was not a “simple mistake” in the calculation of the fee.

       Lewis, 234 Ill. 2d at 48. Instead, the State has helped itself to $440 of defendant’s money,

       without any consideration of whether that was justified, paralleling the imposition of a fine

       without a hearing in Lewis. In fact, the State is not justified in keeping that money. Doing so

       without any type of judicial determination fundamentally undermines the integrity of the judicial

       process. See id. We therefore remand the matter with instructions that the circuit court enter an

       order refunding that sum.

¶ 12          In reaching this conclusion, we note the apparent dissonance in our supreme court’s plain

       error case law. On one hand, the court has emphasized that only structural errors, such as a trial

       before a biased judge or jury, will constitute second-prong plain error. People v. Thompson, 238

       Ill. 2d 598, 609 (2010). In accordance with this strict interpretation of the second prong, the court

       has repeatedly held that error in the delivery of Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. July 1,

       2012)) admonishments to the jury is generally not cognizable under the second prong. People v.

       Sebby, 2017 IL 119445, ¶ 52. Yet, as stated in Lewis and affirmed in Fort, some monetary errors

       may rise to the level of second-prong plain error. The Lewis court held that unfairness is


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       unfairness, with no de minimis exception. Lewis, 234 Ill. 2d at 48. The present case, however,

       does not call for this court to resolve this apparent discord. Lewis remains good law, and under

       Lewis, the circuit court here committed plain error in not refunding defendant’s money.

¶ 13                                          III. CONCLUSION

¶ 14          The judgment of the circuit court of Will County is affirmed, and the matter is remanded

       with directions.

¶ 15          Affirmed and remanded with directions.

¶ 16          PRESIDING JUSTICE SCHMIDT, dissenting:

¶ 17          This error does not rise to the level of plain error. Unlike Lewis, we are not talking about

       a fine levied in the absence of evidence. Looking at the new Illinois Supreme Court Rule 472(c)

       (eff. Mar. 1, 2019), how can one reach the conclusion that this error in the fee constitutes second-

       prong plain error? I would honor the forfeiture.




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