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                               Appellate Court                             Date: 2016.12.15
                                                                           10:46:37 -06'00'




                  People v. Walker, 2016 IL App (3d) 140766



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           MICHAEL WALKER, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-14-0766



Filed             October 28, 2016



Decision Under    Appeal from the Circuit Court of Knox County, No. 06-CF-519; the
Review            Hon. Scott Shipplett, Judge, presiding.



Judgment          Affirmed in part and vacated in part.



Counsel on        Michael J. Pelletier and Katherine M. Strohl, of State Appellate
Appeal            Defender’s Office, of Ottawa, for appellant.

                  John T. Pepmeyer, State’s Attorney, of Galesburg (Justin A. Nicolosi,
                  of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             JUSTICE SCHMIDT delivered the judgment of the court, with
                  opinion.
                  Justice Carter concurred in the judgment and opinion.
                  Justice Wright dissented, with opinion.
                                             OPINION

¶1       Defendant, Michael Walker, appeals from the dismissal of his second-stage postconviction
     petition. Defendant’s sole argument on appeal is that his Violent Crime Victims Assistance
     Fund fine (VCVA) and drug court fee were fines improperly imposed by the circuit clerk and
     must be vacated. We vacate, as void, the fines imposed by the circuit clerk.

¶2                                             FACTS
¶3       In January 2008, defendant pled guilty to one count of aggravated battery (720 ILCS
     5/12-4(b)(6) (West 2006)). The court sentenced defendant to four years’ imprisonment and
     ordered defendant to “pay court costs in this matter which are due within six months of his
     release from custody.” The prison sentence was ordered to run consecutive to the sentence
     defendant was serving at the time he committed the instant offense.
¶4       On April 13, 2012, defendant filed a pro se postconviction petition, arguing that he had
     been deprived of his right to a speedy trial and defense counsel was ineffective for failing to
     raise this issue. The court summarily dismissed defendant’s petition, and defendant appealed.
     We reversed the dismissal and remanded the cause for second-stage proceedings. People v.
     Walker, 2013 IL App (3d) 120330-U.
¶5       On remand, defense counsel filed an amended postconviction petition, which realleged
     defendant’s pro se arguments. The State filed a motion to dismiss. In September 2014, the
     court dismissed defendant’s amended petition, and the clerk entered a written cost sheet into
     the record. The cost sheet included the following assessments: “Clerk Fee” $50, “State’s
     Attorney” $30, “Court Fund—County Fee” $50, “Court Automation” $10, “Court Security”
     $25, “Victim of Violent Crime” $20, “Document Storage Fund” $10, “Arrestee’s Medical
     Fee” $10, “Teen Court” $5, “Drug Court Fee” $5, and “Knox Cty Child Advocacy Center” $5.
     Defendant appeals from the dismissal of his amended postconviction petition, but defendant
     does not contest the dismissal. Therefore, he has abandoned the arguments raised in the
     petition.

¶6                                            ANALYSIS
¶7       Defendant solely argues that his VCVA and drug court fines must be vacated as they were
     imposed without authority by the circuit clerk. The State agrees that these assessments were
     imposed without authority, but argues that the matter should be remanded to the trial court with
     direction for the court to specifically order these mandatory fines. Upon review, we find the
     VCVA and drug court assessments are void. Additionally, we sua sponte find that the circuit
     clerk imposed several other fines without an order of the court. These fines are void and
     vacated accordingly. We further reject the State’s argument for a remand as we do not have
     authority to order the trial court to impose the mandatory fines. See Ill. S. Ct. R. 615(b)(4);
     People v. Castleberry, 2015 IL 116916, ¶ 19; People v. Wade, 2016 IL App (3d) 150417, ¶ 13.
¶8       The imposition of a fine is a judicial act. People v. Strong, 2016 IL App (3d) 140418, ¶ 8.
     “The clerk of a court is a nonjudicial member of the court and, as such, has no power to impose
     sentences or levy fines ***.” People v. Scott, 152 Ill. App. 3d 868, 873 (1987). A fine imposed
     without authority by the circuit clerk is void from its inception. People v. Larue, 2014 IL App



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       (4th) 120595, ¶ 56. The circuit clerk may levy fees against a defendant, but only the trial court
       may impose fines. Wade, 2016 IL App (3d) 150417, ¶ 10.
¶9         Here, the parties agree that defendant’s VCVA and drug court fines are void as they are
       fines that were imposed without authority by the circuit clerk. See People v. Folks, 406 Ill.
       App. 3d 300, 306 (2010) (holding drug court assessment is a fine that cannot be imposed by the
       circuit clerk); Scott, 152 Ill. App. 3d at 873 (holding VCVA assessment is a mandatory fine
       that cannot be imposed by the circuit clerk). We find that the record establishes that the VCVA
       and drug court assessments were imposed by the clerk after the court entered a generic order
       for “costs.” As a result, the VCVA and drug court fines are void. See Larue, 2014 IL App (4th)
       120595, ¶ 56. Accordingly, we vacate these two fines.
¶ 10       After reviewing the cost sheet, we find the circuit clerk imposed several additional fees,
       which have been judicially categorized as fines, without an order of the court. These
       assessments, which are properly categorized as fines, are void. See id. We “have an
       independent duty to vacate void orders and may sua sponte declare an order void.” People v.
       Thompson, 209 Ill. 2d 19, 27 (2004). Therefore, we vacate the following additional fines as
       void: “Court Fund—County Fee” (People v. Ackerman, 2014 IL App (3d) 120585, ¶ 30
       (holding the court systems fee of $50 (55 ILCS 5/5-1101(c)(1), (g) (West 2008)) was a fine)),
       “Arrestee’s Medical Fee” (People v. Jernigan, 2014 IL App (4th) 130524, ¶ 38 (holding the
       $10 arrestee’s medical assessment is a fine)), “Teen Court” (People v. Graves, 235 Ill. 2d 244,
       255 (2009) (holding the teen court assessment is a fine)), and “Knox Cty Child Advocacy
       Center” (People v. Jones, 397 Ill. App. 3d 651, 660-61 (2009) (holding the Children’s
       Advocacy Center Fund assessment is a fine)).
¶ 11       Having vacated the improperly imposed fines, the State argues that we must remand the
       cause for the trial court to properly order any mandatory fines. See 725 ILCS 240/10(b) (West
       2008); 55 ILCS 5/5-1101(d-5) (West 2008). However, in Castleberry, 2015 IL 116916, ¶ 19,
       our supreme court abolished the void sentence rule. In doing so, the supreme court noted that
       an “appellate court may not, under our rules, address a request by the State to increase a
       criminal sentence which is illegally low.” Id. ¶ 26. Since a fine is part of a criminal sentence
       (Graves, 235 Ill. 2d at 250), Castleberry bars remanding this case to the trial court with
       instructions to impose the required fines. Castleberry, 2015 IL 116916, ¶ 26. To do so would
       impermissibly increase defendant’s sentence on appeal. Id. Therefore, we reject the State’s
       argument that a remand is required for the proper imposition of the mandatory fines. The
       State’s sole remedy with regard to these mandatory fines is to file a petition for writ of
       mandamus. See id.
¶ 12       We recently applied the Castleberry analysis to several unauthorized fines in Wade, 2016
       IL App (3d) 150417. The defendant in Wade argued that the circuit clerk improperly assessed
       several fines, which necessitated reversal of the unauthorized fines and remand for the proper
       entry of an order of enumerated costs. Id. ¶ 9. We vacated several void fines that were imposed
       without authority by the circuit clerk. Id. ¶ 12. We then found that the omission of the
       mandatory fines resulted in an illegally low sentence. Id. ¶ 13. However, Castleberry, 2015 IL
       116916, ¶ 25, prevented a remand for the imposition of the statutorily required fines as this act
       would result in an impermissible increase in defendant’s sentence on appeal. Wade, 2016 IL
       App (3d) 150417, ¶ 13. We concluded that the State’s sole recourse to impose the mandatory
       fines was to “file a petition for writ of mandamus seeking an order requiring the trial court to
       impose the statutorily required fines.” Id. Analogously, in the instant case, we vacate the

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       improperly imposed fines.

¶ 13                                       CONCLUSION
¶ 14      For the foregoing reasons, we vacate the fines imposed by the circuit clerk of Knox County
       and otherwise affirm the judgment of the circuit court of Knox County.

¶ 15       Affirmed in part and vacated in part.

¶ 16        JUSTICE WRIGHT, dissenting.
¶ 17        It is well established that “[i]ssues not raised before the trial court are considered forfeited,
       and a party may not raise such issues for the first time on appeal.” McKinley Foundation at the
       University of Illinois v. Illinois Department of Labor, 404 Ill. App. 3d 1115, 1120 (2010).
       However, equally well-established case law also provides that void judgments may be
       challenged at any time. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).
¶ 18        The $25 error in this case was not raised in the trial court. Consequently, in order to avoid
       forfeiture, not surprisingly, this defendant loudly complains that the issue regarding the
       amount of unpaid court costs requires our review as part of a “void order.” Much like shouting
       fire in a theater, appellant’s approach has caused my well-intentioned and diligent judicial
       colleagues to spring into action. However, since defendant concedes forfeiture, our court must
       first carefully examine whether a fire or a void order exists before exercising our jurisdiction.
¶ 19        I cannot criticize the majority for instinctively reacting to the inflammatory term “void” as
       used in this case. I also recognize the majority’s holding is entirely consistent with the
       unanimous decision recently announced by this court in People v. Wade, 2016 IL App (3d)
       150417. Respectfully, I disagree with the approach adopted by this court in Wade. Thus, I must
       also respectfully dissent regarding the same approach adopted in this case. I disagree that this
       court should repair a forfeited clerical error that was not first addressed in the trial court.
¶ 20        In Wade, the defendant forfeited the cost issue as well. First, the defendant filed a motion to
       reconsider his sentence in that case, but did not challenge any part of the financial
       consequences resulting from the court’s sentencing order. Significantly, in Wade, the
       defendant also voluntarily paid all court costs, as calculated by the circuit clerk, without
       voicing any objection to the clerk’s calculations before payment in full.
¶ 21        In Wade, our court recognized the court’s sentencing order was “illegally low” but “not
       void.” Id. ¶ 13. In spite of this finding, the court elected to correct the clerical miscalculation in
       Wade. The court reduced costs three years after defendant voluntarily paid the costs, as
       calculated by the circuit clerk, in full. In fact, by reducing the balance of costs in Wade, the
       defendant became entitled to a $150 refund. In Wade, the opinion asserts that this approach
       was the “economically rational thing to do” because it allowed our court “to vacate the fines
       and move on to the next case.”
¶ 22        I strongly disagree with this expressed view of judicial economics. I submit that the Wade
       decision will only increase the number of appeals involving requests to reduce previously
       forfeited monetary miscalculations by the clerk. Who can fault the multitude of defendants
       who will rely on Wade in future appeals by requesting this court to address forfeited cost
       issues, with high hopes of receiving similar cash refunds or financial credits. I must ask, is
       Wade entitled to interest on the $150 he overpaid three years ago?

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¶ 23        Like the order in Wade, the court order in this case negligently omitted mandatory fines by
       requiring defendant to pay an undetermined amount of costs. Yet, the 2008 order is not void, it
       is just wrong. Since I conclude the 2008 sentencing order in this case is not void, I disagree an
       adjustment in costs is now required due to forfeiture.
¶ 24        Thankfully, Castleberry brings us back to a well-centered starting point when presented
       with a forfeited sentencing issue raised for the first time on appeal. In such a case, reviewing
       courts should begin by carefully scrutinizing whether the “void” label applies to the court’s
       sentencing order in each case. If not, our jurisdiction does not attach to that sentencing issue.
       Here, the majority reversed the process by skipping the first step. Unless the majority first
       holds that the judge’s 2008 order in this case is void, we should not exercise our jurisdiction to
       consider the only issue raised in this appeal.
¶ 25        My interpretation of the holding in Castleberry is stubbornly inflexible. I believe
       Castleberry stands for the proposition that a truly “void” sentence is now limited to directives
       resulting from a circuit court that lacked jurisdictional authority. Here, defendant does not
       challenge the jurisdictional authority of the trial court to delegate the task of calculating the
       amount of costs to the circuit clerk. Based on this record, I conclude the court’s order is not
       void. Based on the rationale of Wade, the majority cannot logically disagree with my view.
¶ 26        I remain hopeful that my dissent will result in a lightbulb moment for the reader. Simply
       stated, I agree the clerical assessments are arguably void assessments. However, the clerical
       assessments in this case were not ratified by the court. Arguably, void clerical assessments do
       not magically become part of a court order without judicial ratification.
¶ 27        It seems simple. Castleberry allows us get out of the business of engaging in financial
       audits years after the sentence was imposed. Such an approach favors judicial economy. Now,
       this court may finally stop addressing endless requests from defendants asking this court to
       audit and then reduce, but never increase, amounts most defendants will never be compelled to
       involuntarily pay.
¶ 28        This approach stops the exponential growth of sentencing issues, raised first on review,
       that have spiraled out of control in recent years. Following Castleberry, we may now turn our
       attention to addressing the merits of substantive issues that are properly subject to our review.
¶ 29        For these reasons, I respectfully dissent in this appeal.




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