                                  Illinois Official Reports

                                          Appellate Court



                              People v. Smith, 2014 IL App (4th) 121118



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      DARRELL W. SMITH, Defendant-Appellant.



District & No.               Fourth District
                             Docket No. 4-12-1118



Filed                        September 19, 2014



Held                         Defendant’s convictions and sentences for aggravated criminal sexual
(Note: This syllabus         assault, attempted aggravated criminal sexual assault and home
constitutes no part of the   invasion were upheld on appeal, but the cause was remanded with
opinion of the court but     directions for the clerk of the circuit court to enter a modified
has been prepared by the     sentencing judgment removing the $5-per-day credit against
Reporter of Decisions        defendant’s fines for his presentence incarceration due to the fact that
for the convenience of       the credit does not apply to those incarcerated for sexual assault, and
the reader.)                 various fines and fees not properly imposed or assessed were vacated,
                             and the cause was remanded to allow for their proper imposition and
                             assessment according to the appellate court’s disposition of this
                             matter.



Decision Under               Appeal from the Circuit Court of Champaign County, No.
Review                       09-CF-1281; the Hon. Heidi N. Ladd, Judge, presiding.



Judgment                     Affirmed in part and vacated in part; cause remanded with directions.
     Counsel on               Michael J. Pelletier, of State Appellate Defender’s Office, of
     Appeal                   Springfield, and Ellen J. Curry and Robert S. Burke, both of State
                              Appellate Defender’s Office, of Mt. Vernon, for appellant.

                              Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
                              Robinson, and Allison Paige Brooks, all of State’s Attorneys
                              Appellate Prosecutor’s Office, of counsel), for the People.


     Panel                    JUSTICE POPE delivered the judgment of the court, with opinion.
                              Justices Knecht and Harris concurred in the judgment and opinion.


                                                OPINION

¶1         Following a March 2010 jury trial, defendant, Darrell W. Smith, was found guilty of two
       counts of aggravated criminal sexual assault (counts I and II) (720 ILCS 5/12-13(a)(1),
       12-14(a)(1), (a)(2) (West 2008)); attempt (aggravated criminal sexual assault) (count III) (720
       ILCS 5/8-4(a), 12-13(a)(1), 12-14(a)(1) (West 2008)); and home invasion (count IV) (720
       ILCS 5/12-11(a)(2) (West 2008)). In May 2010, the trial court merged counts I and II and
       sentenced defendant to a term of 30 years on count I. It sentenced defendant to a consecutive
       term of 15 years on count III and a 30-year term on count IV to run consecutive to the sentence
       imposed on count I and concurrently with count III. Defendant appeals the summary dismissal
       of his pro se postconviction petition, arguing he is entitled to a vacation of certain assessments
       imposed pursuant to his conviction. We affirm in part, vacate in part, and remand with
       directions.

¶2                                          I. BACKGROUND
¶3         On direct review, this court recited the details of defendant’s crimes. See People v. Smith,
       2011 IL App (4th) 100357-U. We need not repeat those details here.
¶4         On July 30, 2009, the State charged defendant in a four-count information with two counts
       of aggravated criminal sexual assault; attempt (aggravated criminal sexual assault); and home
       invasion. The charges generally alleged on July 28, 2009, defendant forcefully entered a home
       in Urbana, Illinois, and sexually assaulted T.G., who was 13 years old, by placing his fingers in
       her vagina.
¶5         In March 2010, the case proceeded to a jury trial. After hearing all of the evidence, the jury
       found defendant guilty of all four counts. A sentencing hearing was set for May 3, 2010.
¶6         At the sentencing hearing, the parties were allowed to suggest corrections to the
       presentence investigation report. However, neither the State nor defendant offered any
       corrections to the report. Moreover, no evidence was presented by either party in aggravation
       or mitigation. The parties argued the appropriate sentence for this case and defendant declined
       to address the court.
¶7         After hearing the prosecutor’s summary of defendant’s criminal record, the trial court
       sentenced defendant on counts I, III, and IV of the information, with count II merging into

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       count I. The trial court sentenced defendant to 30 years’ imprisonment on the merged
       aggravated-criminal-sexual-assault convictions. Additionally, the court sentenced defendant
       to 15 years’ imprisonment for the attempt (aggravated criminal sexual assault) conviction to
       run consecutive to the aggravated-criminal-sexual-assault sentence and 30 years’
       imprisonment for the home-invasion conviction to run consecutive to the
       aggravated-criminal-sexual-assault sentence and concurrently with the attempt (aggravated
       criminal sexual assault) sentence. The court also gave defendant 279 days’ credit for time
       served. Last, the court ordered defendant to pay the following assessments:
                   “THE COURT: He is to also receive credit of $1,395 towards any fines or
               assessments. He is to pay the court costs, a two hundred dollar genetic marker grouping
               analysis fee unless he’s already submitted a sample. He must submit a sample for
               genetic testing in accordance with the statute. He’s to pay a Violent Crime Victims
               Witness Fee. And he’s to undergo medical testing for sexually transmissible diseases
               and [human immunodeficiency virus], in accordance with the statute, 5/5-3-3(g).
               Those results should be tendered to the Court.”
¶8         The written sentencing order, filed on May 5, 2010, and signed by Judge Ladd, required
       defendant to serve a total of 60 years’ imprisonment, with credit for the 279 days served. Under
       subparagraph “A,” each count was listed with the name and date of the offense, citation to the
       statute, the offense’s class, and term of imprisonment and mandatory supervised release
       imposed. Under subparagraph “C,” the sentencing order required defendant to “pay costs of
       prosecution herein” but did not refer to any specific fines or fees.
¶9         A docket entry dated May 3, 2010, says: “Defendant is ordered to submit specimens of
       blood, saliva or tissue to the IL. State Police within 45 days and pay a $200 genetic marker
       grouping analysis fee if not previously done so by the defendant, he is ordered to pay a violent
       crime victims assistance act fee and undergo medical testing pursuant to 730 ILCS 5/5-5-3(g).”
       Additionally, on count I, the docket entry lists the following monetary assessments: “Cost
       Only 280.00[,] ST POLICE SERVICES 10.00.” On count II, the docket entry states “Cost
       Only 290.00[,] COLLECTION FEES 100.05[,] LATE FEES 43.50.” On count III, the docket
       entry lists “Cost Only 290.00[,] MOTION TO VACATE 75.00[,] COLLECTION FEES
       100.05[,] LATE FEES 43.50.” And, on count IV, the docket entry states “Cost Only 290.00.”
¶ 10       The circuit clerk’s fees and fines information contained in the supplemental record
       indicates defendant was assessed the following assessments on count I: (1) a $5
       document-storage assessment; (2) a $10 automation assessment; (3) a $100 circuit-clerk
       assessment; (4) a $25 court-security assessment; (5) a $50 court-finance assessment; (6) a $40
       State’s Attorney assessment; (7) a $10 arrestee’s medical assessment; (8) a $25 victims
       assistance assessment; (9) a $30 juvenile-expungement-fund assessment; (10) a $5 drug-court
       assessment; (11) a $100.05 collection fee; and (12) a $43.50 late fee.
¶ 11       This court affirmed defendant’s conviction and sentence on direct appeal. See Smith, 2011
       IL App (4th) 100357-U.
¶ 12       In August 2012, defendant filed a pro se petition for postconviction relief, alleging a
       multitude of constitutional-rights violations. In November 2012, the trial court summarily
       dismissed defendant’s petition for postconviction relief and ordered him to pay “fees and
       actual court costs.”
¶ 13       This appeal followed.


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¶ 14                                            II. ANALYSIS
¶ 15       Defendant takes issue with the imposition of the following assessments imposed on each
       count in his case: (1) a $5 document-storage assessment; (2) a $10 automation assessment; (3)
       a $100 circuit-clerk assessment; (4) a $25 court-security assessment; (5) a $50 court-finance
       assessment; (6) a $40 State’s Attorney assessment; (7) a $10 arrestee’s medical assessment; (8)
       a $25 victims assistance assessment; (9) a $30 juvenile-expungement-fund assessment; (10) a
       $5 drug-court assessment; and (11) $100.05 in collection fees and $43.50 in late fees.
       Defendant also challenges a one-time $75 filing fee. (We note the supplemental record does
       not include printouts of the assessments imposed on counts II through IV, nor does it include
       the $75 filing fee. However, the parties do not dispute the assessments were imposed on each
       of the four counts (plus a one-time filing fee of $75).)
¶ 16       More specifically, defendant argues, and the State concedes, the circuit clerk improperly
       imposed quadruplicate assessments–i.e., one for each count within his case–and the additional
       assessments must be vacated under People v. Alghadi, 2011 IL App (4th) 100012, 960 N.E.2d
       612. Second, defendant asserts the circuit clerk improperly assessed fines. Third, defendant
       contends the amounts of some assessments are incorrectly calculated or not statutorily
       authorized.
¶ 17       The State concedes all duplicate fees and fines must be vacated. The State further concedes
       the circuit clerk improperly imposed fines, but asserts the fines should be reimposed. The State
       asks this court to impose three additional fines: a $200 criminal surcharge (730 ILCS
       5/5-9-1(c) (West 2008)); a $200 sexual-assault fine (730 ILCS 5/5-9-1.7(b)(1) (West 2008));
       and a $500 sex-offender fine (730 ILCS 5/5-9-1.15(a) (West 2008)). The State contends the
       Violent Crime Victims Assistance Act (Victims Assistance Act) (725 ILCS 240/10(c)(1)
       (West 2008)) fine needs to be recalculated. Finally, the State argues defendant is not eligible
       for the $5-per-diem sentencing credit against his fines.
¶ 18       In Illinois, it is well settled the trial court must impose fines as a component of a
       defendant’s sentence. “This court has consistently held the circuit clerk does not have the
       power to impose fines.” People v. Montag, 2014 IL App (4th) 120993, ¶ 37, 5 N.E.3d 246.
       Although circuit clerks can have statutory authority to impose a fee, they lack authority to
       impose a fine, because the imposition of a fine is exclusively a judicial act. People v. Larue,
       2014 IL App (4th) 120595, ¶ 56, 10 N.E.3d 959. When presented with mandatory fines
       assessed by the clerk, we may vacate the fines and reimpose them ourselves. People v. Warren,
       2014 IL App (4th) 120721, ¶ 85.
¶ 19       A reviewing court must determine whether the assessment was imposed by the trial court
       or circuit clerk. “In ascertaining the terms of the sentence, a reviewing court may examine the
       record as a whole [citation], since the oral pronouncement of sentence and the written
       sentencing order entered on the same date can be viewed as one transaction.” People v.
       Thurston, 255 Ill. App. 3d 512, 514-15, 626 N.E.2d 426, 427 (1994); see also People v. Moore,
       301 Ill. App. 3d 728, 735, 704 N.E.2d 80, 85 (1998) (in the case of a conflict between the oral
       pronouncement of the sentence and the written sentencing order, the oral pronouncement
       controls).
¶ 20       We must also determine whether the assessment is a fine or a fee. People v. Jones, 223 Ill.
       2d 569, 598, 861 N.E.2d 967, 984 (2006). A “fee” is defined as a charge that “seeks to recoup
       expenses” that the State has incurred or “ ‘compensat[es]’ the state for some expenditure

                                                  -4-
       incurred in prosecuting the defendant.” Id. at 582, 861 N.E.2d at 975. A “fine,” however, is
       “punitive in nature” and is “a pecuniary punishment imposed as part of a sentence on a person
       convicted of a criminal offense.” (Internal quotation marks omitted.) Id. at 581, 861 N.E.2d at
       975. “To determine whether an assessment is a fine or a fee and whether the assessment may be
       imposed on each count within a defendant’s case, we look to the language of the statutes
       providing for their imposition.” Warren, 2014 IL App (4th) 120721, ¶ 92.
¶ 21       Because the issues presented are ones of statutory construction, our review is de novo.
       People v. Gutman, 2011 IL 110338, ¶ 12, 959 N.E.2d 621. We first address the fees imposed
       by the circuit clerk, followed by any fines.

¶ 22                                              A. Fees
¶ 23       Defendant argues, and the State concedes, the circuit clerk improperly imposed
       quadruplicate assessments–i.e., one for each count within his case–and the additional
       assessments must be vacated under Alghadi, 2011 IL App (4th) 100012, 960 N.E.2d 612. We
       do not accept the State’s concession regarding quadruplicate fines and fees. In Larue, 2014 IL
       App (4th) 120595, ¶ 59, 10 N.E.3d 959, and Warren, 2014 IL App (4th) 120721, ¶ 90, we
       declined to apply our own decision in Alghadi and instead followed the Second District’s
       approach in People v. Pohl, 2012 IL App (2d) 100629, 969 N.E.2d 508, and People v. Martino,
       2012 IL App (2d) 101244, 970 N.E.2d 1236. Accordingly, as set forth below, we will examine
       the statutory language authorizing or mandating each assessment to determine whether the
       imposition of multiple fines or fees in a defendant’s single case is proper.

¶ 24                                1. The Automation Assessments:
                              A Fee Not Properly Imposed on Each Count
¶ 25      The record shows the circuit clerk imposed a $10 automation fee (705 ILCS 105/27.3a
       (West 2008)) on each count in defendant’s case. In Larue, we held the clerk could assess only
       one automation fee per case. Larue, 2014 IL App (4th) 120595, ¶ 64, 10 N.E.3d 959. As such,
       we vacate three of the automation fees assessed against defendant in this case.

¶ 26                                 2. The Circuit-Clerk Assessments:
                               A Fee Not Properly Imposed on Each Count
¶ 27       The record shows the circuit clerk imposed a $100 circuit-clerk fee (705 ILCS
       105/27.1a(w) (West 2008)) on each count in defendant’s case. In Larue, we held the clerk
       could assess only one circuit-clerk fee per felony complaint. Larue, 2014 IL App (4th) 120595,
       ¶ 66, 10 N.E.3d 959. Here, the four-count complaint filed by the State constituted one felony
       complaint. See Warren, 2014 IL App (4th) 120721, ¶ 98. We therefore vacate three of the
       circuit-clerk fees assessed in this case.

¶ 28                              3. The Court-Security Assessments:
                              A Fee Not Properly Imposed on Each Count
¶ 29       The record shows the circuit clerk imposed a $25 court-security fee
       (55 ILCS 5/5-1103 (West 2008)) on each count in defendant’s case. In Larue, we held the
       clerk could assess only one court-security fee against the defendant. Larue, 2014 IL App (4th)


                                                  -5-
       120595, ¶ 68, 10 N.E.3d 959. We vacate three of the court-security fees assessed against
       defendant in this case.

¶ 30                            4. The Document-Storage Assessments:
                              A Fee Not Properly Imposed on Each Count
¶ 31      The record shows the circuit clerk imposed a $5 document-storage fee (705 ILCS
       105/27.3c(a) (West 2008)) on each count in defendant’s case. In Larue, 2014 IL App (4th)
       120595, ¶ 62, 10 N.E.3d 959, we held the clerk could only assess one document-storage fee
       against the defendant, even though his case resulted in multiple convictions. We therefore
       vacate three of the document-storage fees assessed against defendant.

¶ 32                                          5. The Filing Fee
¶ 33       Defendant asserts the circuit clerk improperly imposed a $75 filing fee for a motion to
       reconsider, which was filed on May 3, 2010. Defendant contends the amount authorized for a
       “motion to reconsider” is $20, unless the county board has by resolution increased the fee to a
       maximum of $40. 705 ILCS 105/27.1a(w)(1)(G) (West 2008). The State counters the clerk
       imposed the $75 fee as a result of filing a postconviction petition and not a motion to
       reconsider.
¶ 34       The record in this case contains conflicting information. The trial court’s docket entry for
       March 26, 2010, shows defendant filed a “motion for acquittal, or in the alternative, a motion
       for a new trial.” On May 3, 2010, a hearing was held on defendant’s motion and the docket
       entry states, “Motion to Vacate 75.00.” Curiously, according to the Champaign County Circuit
       Clerk’s      Public    Access       Case      Lookup      System       (PASS)       (https://secure.
       jtsmith.com/clerk/yytt331s.asp), the docket entry for May 3, 2010, states: “Modified Order
       *** Motion to Vacate 150.00” in addition to the fee of $75.00 noted above (https://secure.
       jtsmith.com/clerk/yytt331s.asp). We note the following disclaimer: “The PASS system is
       intended to be a summary of information for the public. It does not take the place of the legal
       information that is held in the actual Court file. The Clerk of the Circuit Court of Champaign
       County accepts no liability for discrepancies between these electronic versions and the official
       printed documents.” https://secure.jtsmith.com/clerk/yytt331s.asp. Since PASS is not an
       official public record of the circuit clerk, we decline to take judicial notice of the information
       contained on the PASS website. Cf. People v. Mitchell, 403 Ill. App. 3d 707, 709, 936 N.E.2d
       659, 661 (2010) (the appellate court may take judicial notice of the Illinois Department of
       Corrections (DOC) website because it is an official public record of DOC). Indeed, there are
       other discrepancies between the assessments listed on PASS and those contained in the
       supplemental record on appeal–for example, five sets of assessments are listed on PASS as
       opposed to four. In any case, on November 26, 2012, the trial court entered a written order
       denying defendant’s pro se postconviction petition and ordering him “to pay [filing] fees and
       actual court costs.” The docket entry for November 26, 2012, does not show any filing fees or
       court costs. Likewise, the circuit clerk’s fines and fees information contained in the
       supplemental record does not show any $75 assessment.
¶ 35       The record is ambiguous as to whether the $75 fee was actually imposed and it is unclear
       whether it was assessed as a result of filing a motion to reconsider, filing a postconviction



                                                    -6-
       petition, or both. The clerk’s printout is silent as to the statutory basis for these assessments and
       silent as to the date they were imposed. Once again:
                    “We stress the importance of the need for all parties involved–the trial court, the
                State’s Attorney’s office, the criminal defense bar, and the circuit clerk’s office–to
                ensure fines are properly imposed by the trial court with the attorneys and the
                defendant in attendance and on notice. This process requires active participation from
                the parties. *** We recognize it is the long-standing practice of the circuit court clerks
                to impose the fees and costs associated with criminal cases ***. *** [W]e require the
                help of the parties to fulfill our duties in resolving these issues on review.” (Emphasis
                added.) Warren, 2014 IL App (4th) 120721, ¶ 171.
¶ 36        We remand with directions for the trial court to determine whether such a fee can be
       imposed, the proper amount of the fee, and to make a record of the statutory basis for which the
       filing fee was imposed.

¶ 37                              6. The State’s Attorney Assessments:
                                 A Fee Properly Imposed on Each Count
¶ 38       The record shows the circuit clerk imposed a $40 State’s Attorney fee (55 ILCS 5/4-2002
       (West 2008)) on each count in defendant’s case. In Larue, we held the clerk could impose the
       State’s Attorney assessment on a per-conviction basis. Larue, 2014 IL App (4th) 120595, ¶ 72,
       10 N.E.3d 959. In this case, because defendant was convicted of three offenses, we vacate one
       of the State’s Attorney fees against defendant.
¶ 39       Moreover, in Warren, we explained “the statute authorizing the State’s Attorney fee shows
       the State’s Attorney is entitled to receive $30 for each felony conviction.” Warren, 2014 IL
       App (4th) 120721, ¶ 105 (citing 55 ILCS 5/4-2002(a) (West 2010)). The additional $10 listed
       under the State’s Attorney assessment on the circuit clerk’s printout is the $10 sum paid to the
       State’s Attorney out of the $30 juvenile-expungement assessment discussed below. Id.; 730
       ILCS 5/5-9-1.17 (West 2010). Thus, we leave intact three $30 State’s Attorney fees.

¶ 40                                    7. Fees: Remand Directions
¶ 41      In sum, we leave intact (1) a $10 automation fee; (2) a $100 circuit-clerk fee; (3) a $25
       court-security fee; (4) a $5 document-storage fee; and (5) three $30 State’s Attorney fees. We
       remand for the trial court to determine whether a $75 filing fee was actually imposed, whether
       such a fee can properly be imposed, and to make a record of the statutory basis for which the
       $75 filing fee was imposed, if in fact it was imposed.

¶ 42                                             B. Fines
¶ 43       Defendant next asserts the circuit clerk improperly assessed fines. The State concedes the
       circuit clerk improperly imposed fines but asserts the fines should be reimposed. The State also
       disputes the amount of assessments to be imposed.




                                                     -7-
¶ 44                              1. The Arrestee’s Medical Assessments:
                                  A Fine Improperly Imposed by the Clerk
¶ 45        The record shows the circuit clerk imposed a $10 arrestee’s medical assessment (730 ILCS
       125/17 (West 2008)) on each count in defendant’s case. Defendant argues the assessment is a
       fee and may be imposed only once per case. We disagree.
¶ 46        In Larue, this court held the arrestee’s medical fee, despite its label as a “fee,” is actually a
       fine and could not be imposed by the circuit clerk. Larue, 2014 IL App (4th) 120595, ¶ 57, 10
       N.E.3d 959. Moreover, in Warren, 2014 IL App (4th) 120721, ¶ 113, this court held “[t]he
       plain language of section 17 of the Jail Act clearly evidences the legislature’s intent this fine be
       imposed on each count in a defendant’s case.” (Emphasis in original.) Since the clerk
       improperly imposed the arrestee’s medical fine, we vacate all four assessments and direct the
       trial court to impose three $10 arrestee’s medical fines–one for each count in defendant’s case.

¶ 47                               2. The Court-Finance Assessments:
                                 A Fine Improperly Imposed by the Clerk
¶ 48       The record shows the circuit clerk imposed a $50 court-finance fee (55 ILCS 5/5-1101(c)
       (West 2008)) on each count in defendant’s case. Defendant argues, and the State concedes, the
       court-finance assessment is a fine that can be imposed once per case.
¶ 49       We note a split among the appellate districts as to whether the court-finance assessment is a
       fine or fee. In Larue, we talked about the court-finance assessment as a fee. Larue, 2014 IL
       App (4th) 120595, ¶ 70, 10 N.E.3d 959. However, neither party in Larue argued the
       court-finance assessment was a fine. The issue in Larue was whether the assessment could be
       imposed on more than one count. In contrast, the Second and Third Districts have held the
       assessment to be a fine. People v. Smith, 2013 IL App (2d) 120691, ¶ 21, 1 N.E.3d 648; People
       v. Ackerman, 2014 IL App (3d) 120585, ¶ 30, 10 N.E.3d 470.
¶ 50       In People v. Graves, 235 Ill. 2d 244, 248, 919 N.E.2d 906, 908-09 (2009), the circuit court
       ordered the defendant to pay various monetary charges, including a “$10 mental health court
       fee” and a “$5 youth diversion/peer court fee.” The mental health court fee was assessed
       pursuant to section 5-1101(d-5) of the Counties Code, which provides the fee is “placed in the
       county general fund and used to finance the county mental health court, the county drug court,
       or both.” 55 ILCS 5/5-1101(d-5) (West 2008). The youth diversion/peer court fee was assessed
       pursuant to section 5-1101(e), which provides the fee “must be deposited into an account
       specifically for the operation and administration of a teen court, peer court, peer jury, youth
       court, or other youth diversion program.” 55 ILCS 5/5-1101(e) (West 2008). Further, section
       5-1101(e) provides the clerk must remit the fees collected on a monthly basis to those courts or
       programs, less 5%, which was to be retained by the clerk as fee income to the clerk’s office. 55
       ILCS 5/5-1101(e) (West 2008).
¶ 51       The Graves court emphasized the difference between a fee and a fine: a fee is intended to
       compensate the State for any costs it incurred in prosecuting the defendant. Graves, 235 Ill. 2d
       at 250, 919 N.E.2d at 909. The Graves court found the mental health court and youth
       diversion/peer court fees charged in that case were actually fines because they “[did] not seek
       to compensate the [S]tate for any costs incurred as the result of prosecuting the defendant.”
       Id. at 251, 919 N.E.2d at 910. In its discussion of section 5-1101, the Graves court also stated
       the following:

                                                     -8-
                “We find that section 5-1101 of the Counties Code also sets forth ‘fines and penalties,’
                although they are labeled ‘fees to finance court system.’ 55 ILCS 5/5-1101 (West
                2006). In addition to the two subsections under which fines were imposed in this case,
                section 5-1101 also authorizes monetary penalties to be paid by a defendant on a
                judgment of guilty or a grant of supervision for violation of certain sections of the
                Illinois Vehicle Code or of the Unified Code of Corrections. See 55 ILCS 5/5-1101(a),
                (c), (d) (West 2006).” Graves, 235 Ill. 2d at 253, 919 N.E.2d at 911.
¶ 52        In Smith, the Second District applied the supreme court’s decision in Graves and held the
       court-finance assessment to be a fine. Smith, 2013 IL App (2d) 120691, ¶ 21, 1 N.E.3d 648.
       There, the court reasoned, “[n]ot only is the assessment under section 5-1101(c) of the
       Counties Code specifically called a fine in Graves, but it meets the criteria of Graves and Jones
       for a fine.” Id. The assessment is imposed only upon a conviction and is authorized to help
       “ ‘finance [the] court system.’ ” Id. (quoting 55 ILCS 5/5-1101 (West 2010)). More important,
       the assessment does not seek to compensate the State for any costs incurred as the result of
       prosecuting the defendant. Rather, “[a] defendant is charged a flat amount depending on the
       classification of the severity of his offense.” Id. Finally, the court noted the amount of the
       assessment is correlated directly with the severity of the offense, demonstrating the punitive
       nature of the assessment. Although a “felony is not necessarily twice as expensive to prosecute
       as a misdemeanor *** it is inherently more serious in the eyes of the law.” (Emphasis in
       original.) Id. The court concluded the court-finance assessment is a fine.
¶ 53        A contrary argument could be made. It could be argued the legislature intends those who
       utilize the services of the court system to assist in defraying those costs. A felony offense
       ordinarily requires many more court appearances than a misdemeanor. A felony could be 10
       times more expensive to prosecute than a misdemeanor, thus justifying the higher fees for
       felonies. Also, to say the assessment is only imposed upon conviction, and thus more
       resembles a fine than fee, is a non sequitur. If a defendant is acquitted or a charge is dismissed,
       the clerk does not collect fees. Thus all fees (except public defender fees) are assessed and
       collected only upon conviction.
¶ 54        Nevertheless, pursuant to the supreme court’s statement in Graves, 235 Ill. 2d at 253, 919
       N.E.2d at 911, and the Second District’s decision in Smith, 2013 IL App (2d) 120691, ¶ 21, 1
       N.E.3d 648, and Ackerman, 2014 IL App (3d) 120585, ¶ 30, 10 N.E.3d 470, we hold the
       court-finance fee is actually a fine. Therefore, the clerk improperly imposed the court-finance
       fine and we must vacate all four assessments. Since the fine may be imposed for each judgment
       of guilty or order of supervision, and since defendant was found guilty of three offenses
       (counts I and II merged), we direct the trial court to impose three $50 court-finance fines on
       remand.

¶ 55                                3. The Drug-Court Assessments:
                                A Fine Improperly Imposed by the Clerk
¶ 56       The record in this case shows the circuit clerk imposed a $5 drug-court assessment (55
       ILCS 5/5-1101(f) (West 2008)) on each count in defendant’s case. Defendant argues, and the
       State concedes, the drug-court assessment is a fine improperly imposed by the circuit clerk.
       We agree and accept the State’s concession.



                                                    -9-
¶ 57       In Warren, we held “the $5 drug-court assessment imposed by the circuit clerk was a fine,
       despite its label as a ‘fee,’ because the assessment is intended to be used ‘for the operation and
       administration of the drug court.’ ” Warren, 2014 IL App (4th) 120721, ¶ 131 (quoting 55
       ILCS 5/5-1101(f) (West 2010)). Because defendant never participated in drug court, this
       assessment did not reimburse the state for the costs of prosecuting defendant. People v.
       Unander, 404 Ill. App. 3d 884, 886, 936 N.E.2d 795, 797 (2010); People v. Rexroad, 2013 IL
       App (4th) 110981, ¶ 53, 992 N.E.2d 3 (“Although the drug[-]court assessment pursuant to
       section 5-1101(f) of the Counties Code [citation] is labeled a fee, it is actually a fine where, as
       here, defendant did not participate in drug court.”). Because the clerk imposed the $5
       drug-court fines after sentencing, we vacate these fines.
¶ 58       Defendant further argues the drug-court assessment may only be imposed once per case.
       We disagree. “The plain language of section 5-1101(f)(2) of the Counties Code shows the
       legislature intended this fine to be imposed on each count in a defendant’s case.” (Emphasis in
       original.) Warren, 2014 IL App (4th) 120721, ¶ 132. On remand, the trial court must impose
       three $5 drug-court fines–one for each conviction in defendant’s case.

¶ 59                           4. The Juvenile-Expungement-Fund Fines:
                                A Fine Improperly Imposed by the Clerk
¶ 60       The record shows a $30 juvenile-expungement fine (730 ILCS 5/5-9-1.17 (West 2010)
       (added by Pub Act. 96-707, § 15 (eff. Jan. 1, 2010))) was imposed on each count in defendant’s
       case. Defendant argues the imposition of the juvenile-expungement fine violates the
       prohibition against ex post facto laws. We agree.
¶ 61       In Warren, we held “[t]he plain language of section 5-9-1.17 clearly shows the legislature
       intended this assessment to be a fine.” Warren, 2014 IL App (4th) 120721, ¶ 127. Because the
       $30 juvenile-expungement assessment (including the three separate $10 assessments
       contained therein) is a fine, the circuit clerk cannot properly impose it. Additionally, the
       juvenile-expungement fine took effect on January 1, 2010, after the date of defendant’s
       offense, and imposition would violate the prohibition against ex post facto laws. People v.
       Devine, 2012 IL App (4th) 101028, ¶ 10, 976 N.E.2d 624. We vacate all four $30
       juvenile-expungement fines–listed as three separate $10 charges for the Circuit Clerk
       Operations and Administrative Fund, State’s Attorney’s Office Fund, and State Police
       Services Fund–imposed on each count in defendant’s case. (We note our vacatur of this $10
       assessment does not affect the $30 to which the State’s Attorney was entitled on each count for
       the two felony convictions in this case under section 4-2002(a) of the Counties Code (55 ILCS
       5/4-2002(a) (West 2008)).

¶ 62                           5. The Victims Assistance Act Assessments:
                                A Fine Improperly Imposed by the Clerk
¶ 63       The record shows a $25 Victims Assistance Act assessment (725 ILCS 240/10(c)(1) (West
       2008)) was imposed on each count in defendant’s case. The Victims Assistance Act
       assessment is a mandatory fine that only the court has authority to impose. People v.
       Evangelista, 393 Ill. App. 3d 395, 401, 912 N.E.2d 1242, 1247 (2009). Here, although the trial
       court ordered defendant to pay the Victims Assistance Act assessment, it failed to determine
       the appropriate amount of the fine. Absent a court order imposing a specific fine, it is well

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       established the clerk of a court, as a nonjudicial member of the court, has no power to levy
       fines. Warren, 2014 IL App (4th) 120721, ¶ 82. Nothing in the record suggests the trial court
       reviewed, approved, or intended to incorporate the clerk’s calculations or intended to order a
       $25 Victims Assistance Act fine or that counsel or defendant were present when this
       component of the sentence was imposed. Accordingly, we vacate the Victims Assistance Act
       fines imposed by the clerk.
¶ 64       Moreover, the defendant’s Victims Assistance Act fine must be amended. The clerk
       assessed the $25 fine pursuant to section 10(c)(1), which applies only where no other fine has
       been imposed. 725 ILCS 240/10(c)(1) (West 2008). Because other fines are imposed in this
       case, the defendant’s Victims Assistance Act fine should have been assessed under section
       10(b), which authorizes a fine of “$4 for each $40, or fraction thereof, of fine imposed.” 725
       ILCS 240/10(b) (West 2008). We direct imposition of a Victims Assistance Act fine of $4 for
       each $40 of fine assessed. This task may require the court to recalculate the fine, which will
       require the court to calculate the total fines, including the traffic/criminal surcharge, imposed
       pursuant to each count and impose an additional penalty of $4 for each $40, or fraction thereof,
       of fine imposed. 725 ILCS 240/10(b) (West 2008); see People v. Williams, 2013 IL App (4th)
       120313, ¶ 21, 991 N.E.2d 914 (“ ‘Lump Sum Surcharge’ ” imposed pursuant to section
       5-9-1(c) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-9-1(c) (West
       2008)) is to be calculated before the Victims Assistance Act assessment; the surcharge is added
       to the total fines and the Victims Assistance Act assessment is calculated based on the new
       total.).
¶ 65       Finally, the Victims Assistance Act fine may be assessed on each count, as the statute
       provides the penalty is to be imposed upon each conviction. Warren, 2014 IL App (4th)
       120721, ¶ 136. Since defendant was convicted of four offenses (with counts I and II merging),
       the trial court must impose three Victims Assistance Act fines–one for each conviction.
       Id. ¶ 137.

¶ 66                                   6. Fines: Remand Directions
¶ 67       In sum, we vacate all fines imposed by the circuit clerk. On remand, the trial court must
       impose the following mandatory fines: (1) three $10 arrestee’s medical fines; (2) three $50
       court-finance fines; (3) three $5 drug-court fines; and (4) three Victims Assistance Act fines of
       $4 for each $40, or fraction thereof, of fines imposed.

¶ 68                              C. Fines Not Imposed in This Case
¶ 69       The State asks this court to impose three additional fines not listed on the circuit clerk’s
       computer printout, which it asserts are applicable to defendant’s case: a $200
       criminal-surcharge fine (730 ILCS 5/5-9-1(c) (West 2008)); a $200 sexual-assault fine
       (730 ILCS 5/5-9-1.7(b)(1) (West 2008)); and a $500 sex-offender fine (730 ILCS
       5/5-9-1.15(a) (West 2008) (added by Pub. Act 95-600, § 15 (eff. June 1, 2008))).

¶ 70                                    1. Criminal Surcharge
¶ 71       The State contends a criminal-surcharge fine must be imposed on remand. We agree.
¶ 72       Section 5-9-1(c) of the Unified Code (730 ILCS 5/5-9-1(c) (West 2008)) provides, in
       pertinent part:

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               “There shall be added to every fine imposed in sentencing for a criminal or traffic
               offense, except an offense relating to parking or registration, or offense by a pedestrian,
               an additional penalty of $10 for each $40, or fraction thereof, of fine imposed.”
               (Emphases added.)
¶ 73       The criminal-surcharge assessment is a fine that must be imposed on each count in a
       defendant’s case. Warren, 2014 IL App (4th) 120721, ¶¶ 123-24. On remand, the trial court
       must impose three criminal surcharge fines–one for each conviction. “This may require the
       fine to be recalculated, which will require the trial court to calculate the total fines on each
       count and assess an additional $10 for each $40, or fraction thereof, of fine imposed.”
       Id. ¶ 124; see Williams, 2013 IL App (4th) 120313, ¶ 21, 991 N.E.2d 914 (“ ‘Lump Sum
       Surcharge’ ” imposed pursuant to section 5-9-1(c) of the Unified Code is to be calculated
       before the Victims Assistance Act assessment; the surcharge is added to the total fines and the
       Victims Assistance Act assessment is calculated based on the new total.).

¶ 74                                  2. Sexual-Assault Assessment
¶ 75       The State argues this court should impose a mandatory $200 sexual-assault fine (730 ILCS
       5/5-9-1.7(b)(1) (West 2008)).
¶ 76       Section 5-9-1.7(b)(1) states:
               “In addition to any other penalty imposed, a fine of $200 shall be imposed upon any
               person who pleads guilty or who is convicted of, or who receives a disposition of court
               supervision for, a sexual assault or attempt of a sexual assault. Upon request of the
               victim or the victim’s representative, the court shall determine whether the fine will
               impose an undue burden on the victim of the offense. *** If the court finds that the fine
               would impose an undue burden on the victim, the court may reduce or waive the fine.
               The court shall order that the defendant may not use funds belonging solely to the
               victim of the offense for payment of the fine.” (Emphases added.) 730 ILCS
               5/5-9-1.7(b)(1) (West 2008).
       Section 5-9-1.7(a)(1) defines “sexual assault” as “the commission or attempted commission of
       *** aggravated criminal sexual assault.” 730 ILCS 5/5-9-1.7(a)(1) (West 2008). While the
       express language of section 5-9-1.7(b)(1) gives the trial court discretion to “reduce or waive
       the fine” (730 ILCS 5/5-9-1.7(b)(1) (West 2008)), that discretion arises only when the victim
       makes a request for the court to consider any burden imposed on the victim by imposition of
       the fine.
¶ 77       Here, the record discloses no request was made by the victim to the trial court to consider
       waiving or reducing this fine. Consequently, the court was mandated to impose this fine on
       counts I and III and we remand with directions to do so. Cf. People v. Anderson, 402 Ill. App.
       3d 186, 194, 931 N.E.2d 773, 779 (2010) (upholding the imposition of a fine on each count but
       implying such was within the court’s discretion).

¶ 78                     3. The Sex-Offender Assessment: A Mandatory Fine
¶ 79      The State next argues this court should impose a mandatory $500 sex-offender fine (730
       ILCS 5/5-9-1.15(a) (West 2008) (added by Pub. Act 95-600, § 15 (eff. June 1, 2008))).
¶ 80      Section 5-9-1.15 provides as follows:


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                   “(a) There shall be added to every penalty imposed in sentencing for a sex offense
               as defined in Section 2 of the Sex Offender Registration Act an additional fine in the
               amount of $500 to be imposed upon a plea of guilty, stipulation of facts or finding of
               guilty resulting in a judgment of conviction or order of supervision.
                   (b) Such additional amount shall be assessed by the court imposing sentence and
               shall be collected by the circuit clerk in addition to the fine, if any, and costs in the case.
               Each such additional penalty shall be remitted by the circuit clerk within one month
               after receipt to the State Treasurer for deposit into the Sex Offender Investigation Fund.
               The circuit clerk shall retain 10% of such penalty for deposit into the Circuit Court
               Clerk Operation and Administrative Fund created by the Clerk of the Circuit Court to
               cover the costs incurred in administering and enforcing this Section. Such additional
               penalty shall not be considered a part of the fine for purposes of any reduction in the
               fine for time served either before or after sentencing.” 730 ILCS 5/5-9-1.15(a), (b)
               (West 2008) (added by Pub. Act 95-600, § 15 (eff. June 1, 2008)).
¶ 81       The plain language of section 5-9-1.15 shows the legislature intended this assessment to be
       a fine. The statute refers to the assessment as “an additional fine” that is to “be added to every
       penalty imposed in sentencing for a sex offense.” 730 ILCS 5/5-9-1.15(a) (West 2008) (added
       by Pub. Act 95-600, § 15 (eff. June 1, 2008)). Additionally, the legislature intended this fine to
       be imposed on each sex-offense count in defendant’s case. The statute provides the fine is to
       “be added to every penalty imposed in sentencing for a sex offense.” (Emphasis added.) 730
       ILCS 5/5-9-1.15(a) (West 2008) (added by Pub. Act 95-600, § 15 (eff. June 1, 2008)). The fine
       is “to be imposed upon a plea of guilty, stipulation of facts or finding of guilty resulting in a
       judgment of conviction or order of supervision.” 730 ILCS 5/5-9-1.15(a) (West 2008) (added
       by Pub. Act 95-600, § 15 (eff. June 1, 2008)). Because a defendant can properly be found
       guilty of and sentenced for multiple sex offenses in a single case, the sex-offender fine can be
       properly imposed on each count in a defendant’s case. On remand, the trial court must impose
       two $500 sex-offender fines–one for each sex-offense conviction in defendant’s case.

¶ 82                           4. Remand Directions for Additional Fines
¶ 83       In sum, the trial court must impose the following additional mandatory fines: (1) three
       criminal-surcharge fines of $10 for each $40, or fraction thereof, of fine imposed; (2) two $200
       sexual-assault fines; and (3) two $500 sex-offender fines.

¶ 84                              D. The Collection Fees and Late Fees:
                                       A Separate Civil Assessment
¶ 85       Next, defendant argues the circuit clerk exceeded statutory authority in ordering him to pay
       a $43.50 late fee (725 ILCS 5/124A-10 (West 2008)) and a $100.05 collection fee (730 ILCS
       5/5-9-3(e) (West 2008)). Specifically, defendant argues the collection fee is improper because
       “the time fixed for payment of the fine, fee, cost, restitution, or judgment of bond forfeiture”
       was never set by the court and consequently, defendant cannot be considered late. The State
       argues the late fees and collection fees are civil penalties that cannot be challenged in a
       criminal appeal.
¶ 86       In People v. Jake, 2011 IL App (4th) 090779, ¶ 23, 960 N.E.2d 45, this court held late fees
       and collection fees “are in the nature of a separate civil penalty which must be challenged by a

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       cause of action separate from the criminal case.” The court further determined it did not have
       jurisdiction to consider the merits of defendant’s argument because the late fees and collection
       fees were not assessed until after defendant filed his notice of appeal. The court reasoned as
       follows:
               “A notice of appeal provides a reviewing court with jurisdiction to consider only the
               judgments specified in the notice of appeal. [Citation.] Once the notice of appeal is
               filed, the reviewing court has no jurisdiction over matters the trial court decides after
               that date. [Citation.] The final judgment in a criminal case is the sentence. [Citation.]”
               Id. ¶ 24, 960 N.E.2d 45.
¶ 87       Here, the trial court sentenced defendant on May 3, 2010. The docket sheet reflects these
       fees were assessed on the day defendant was sentenced, i.e., May 3, 2010. We fail to
       understand how such fees could have been imposed on the day of sentencing.
¶ 88       Moreover, we note the collection fees and late fees are based on the total amount of fines
       and fees imposed by the circuit clerk. Since many of the fines were not judicially imposed, and
       because several assessments were imposed improperly on multiple counts, we direct the clerk
       to vacate the late fees and collection fees. To the extent new assessments are imposed on
       remand, defendant will have 30 days (or longer if directed by the trial court) from the date of
       judgment to pay those assessments. See 725 ILCS 5/124A-10 (West 2008). If he fails to pay,
       the clerk may impose collection fees and late fees as allowed by statute.

¶ 89                                       E. Sentencing Credit
¶ 90       Finally, the State argues defendant is not entitled to the $5-per-diem sentencing credit
       because he was incarcerated for sexual assault. We agree.
¶ 91       Section 110-14(a) of the Code of Criminal Procedure of 1963 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.” 725 ILCS 5/110-14(a) (West 2008). However, section 110-14(b)
       provides subsection (a) does not apply to a person incarcerated for sexual assault as defined in
       section 5-9-1.7(a)(1) of the Unified Code (730 ILCS 5/5-9-1.7(a)(1) (West 2008)). 725 ILCS
       5/110-14(b) (West 2008) (added by Pub. Act 93-699, § 5 (eff. Jan. 1, 2005)). As noted above,
       section 5-9-1.7(a)(1) defines sexual assault as “the commission or attempted commission of
       *** aggravated criminal sexual assault.” 730 ILCS 5/5-9-1.7(a)(1) (West 2008).
¶ 92       In this case, defendant was convicted of attempt (aggravated criminal sexual assault) (720
       ILCS 5/8-4(a), 12-13(a)(1), 12-14(a)(1) (West 2008)) and aggravated criminal sexual assault
       (720 ILCS 5/12-13(a)(1), 12-14(a)(1) (West 2008)), which fall under the definition of “sexual
       assault.” 730 ILCS 5/5-9-1.7(a)(1) (West 2008). Accordingly, he is not eligible for the $5
       per diem sentencing credit to be applied against his fines. See People v. Schneider, 403 Ill.
       App. 3d 301, 304, 933 N.E.2d 384, 389 (2010), abrogated on other grounds by People v.
       Gutierrez, 2012 IL 111590, 962 N.E.2d 437. We order the circuit court to enter a modified
       sentencing judgment removing the sentencing credit. See Ill. S. Ct. R. 615(b) (eff. Jan. 1,
       1967); People v. Rivera, 378 Ill. App. 3d 896, 900-01, 882 N.E.2d 1169, 1173 (2008).




                                                   - 14 -
¶ 93                                        III. CONCLUSION
¶ 94       We affirm in part and vacate in part the trial court’s judgment and remand for the trial
       court, and not the circuit clerk, to impose the mandatory fines vacated herein and any other
       fines mandated by statute. We further direct the clerk of this court to furnish the Champaign
       County circuit clerk with a personal copy of this disposition, ensuring she understands the
       errors as to fines and fees, discussed herein, so that the errors are not repeated. As part of our
       judgment, we award the State its $50 statutory assessment against defendant as costs of this
       appeal. 55 ILCS 5/4-2002(a) (West 2012).

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




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