                                           2015 IL App (3d) 130720

                               Opinion filed September 1, 2015
     _____________________________________________________________________________

                                                    IN THE

                                     APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                   A.D., 2015

     THE PEOPLE OF THE STATE OF                          )      Appeal from the Circuit Court
     ILLINOIS,                                           )      of the 12th Judicial Circuit,
                                                         )      Will County, Illinois,
            Plaintiff-Appellee,                          )
                                                         )      Appeal No. 3-13-0720
            v.                                           )      Circuit No. 08-CF-1420
                                                         )
     RONALD A. SCALISE,                                  )      Honorable
                                                         )      Edward A. Burmila, Jr.,
            Defendant-Appellant.                         )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE O'BRIEN delivered the judgment of the court, with opinion.
           Justice Lytton concurred in the judgment and opinion.
           Justice Wright dissented, with opinion.
     _____________________________________________________________________________

                                                   OPINION

¶1          Defendant, Ronald A. Scalise, pled guilty to two counts of predatory criminal sexual

     assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)) in exchange for consecutive sentences

     of 12 years' imprisonment on each of the charges. On appeal, defendant argues that the court

     erred in imposing a $500 sex crimes fine. 1 We vacate in part, modify in part, and remand with

     directions.



            1
                Defendant does not contest the validity of his pleas and prison sentences.
¶2                                                 FACTS

¶3          Defendant was charged by indictment with six counts of predatory criminal sexual assault

     of a child. Defendant pled guilty to counts I and II of the indictment in exchange for the

     dismissal of the four remaining counts. Count I alleged that defendant committed the offense of

     predatory criminal sexual assault of a child between October 12, 1998, and October 12, 1999.

     Count II alleged that defendant committed the offense of predatory criminal sexual assault of a

     child between October 13, 1999, and October 12, 2000. During the plea hearing, the State

     described the agreement that it had reached with defendant. The agreement included costs of

     $6,056, which was covered by defendant's $50,000 bond. At the conclusion of the hearing, the

     court accepted defendant's plea and imposed consecutive sentences of 12 years' imprisonment on

     counts I and II. The court ordered defendant to provide a DNA sample and made a finding for

     costs. The court entered a written order for costs that included a $500 assessment for "Sex

     Crimes (State offender DNA database)—(730 ILCS 5/5-4-3(j))." The court also imposed a $200

     DNA analysis fee which cited the same statute as the sex crimes assessment.

¶4          On September 6, 2011, defendant filed a petition for postconviction relief. In the

     petition, defendant argued that: (1) he received ineffective assistance of counsel; (2) his plea was

     coerced; and (3) his sentence was excessive. The court advanced the petition to the second stage

     of proceedings and appointed counsel. Defense counsel filed an amended postconviction

     petition arguing that defendant had received ineffective assistance of counsel, and the State filed

     a motion to dismiss the petition. The court granted the State's motion to dismiss. Defendant

     appeals.

¶5                                              ANALYSIS




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¶6          Defendant argues that the court erred in imposing a $500 sex crimes assessment where

     the cited statute did not authorize the assessment and the only authority for the assessment did

     not take effect until after the date of defendant's offenses. The State argues that the $500 sex

     crimes assessment was part of defendant's fully negotiated plea agreement, and therefore, it may

     not be altered. Upon review, we find that the sex crimes assessment was erroneously imposed,

     but defendant was statutorily subject to a $100 sexual assault fine that was not imposed.

¶7          At the time of sentencing, section 5-4-3(j) of the Unified Code of Corrections (Code) did

     not authorize the imposition of a $500 sex crimes assessment. See 730 ILCS 5/5-4-3(j) (West

     2008). Instead, this section authorized the imposition of a $200 DNA analysis fee, which the

     court properly imposed in a different section of the costs order. Id. Therefore, defendant's $500

     sex crimes assessment is void because the trial court could not assess costs that were not

     authorized by statute. People v. Hunter, 358 Ill. App. 3d 1085, 1094 (2005).

¶8          Alternatively, the trial court may have intended to impose a $500 sex offender fine,

     which was statutorily mandated at the time of sentencing. 730 ILCS 5/5-9-1.15(a) (West 2008).

     The sex offender fine was enacted by Public Act 95-600 and became effective June 1, 2008. See

     Pub. Act 95-600, § 15 (eff. June 1, 2008) (adding 730 ILCS 5/5-9-1.14). 2 Defendant committed

     the offenses at issue between 1998 and 2000, well before the sex offender fine took effect. 730

     ILCS 5/5-9-1.15 (West 2008). As this fine is punitive, its imposition in the instant case would

     violate the prohibition against ex post facto laws and be subject to vacatur. U.S. Const., art. I,

     § 10; Ill. Const. 1970, art. I, § 16; People v. Dalton, 406 Ill. App. 3d 158, 164 (2010) (vacating a



            2
                Section 5-9-1.14 of the Code was added by Public Act 95-600, § 15 (eff. June 1, 2008).

     It was later renumbered as section 5-9-1.15 by Public Act 95-876, § 355 (eff. Aug. 21, 2008).


                                                       3
       sex offender fine due to an ex post facto violation). As a result, defendant's $500 sex crimes

       assessment cannot stand as a section 5-9-1.15(a) mandatory sex offender fine.

¶9            Due to the errors discussed supra, we vacate defendant's $500 sex crimes assessment.

¶ 10          In addition to defendant's challenge to the sex crimes assessment, we find that defendant's

       sentence is also void because he was not subject to the mandatory $100 sexual assault fine. See

       730 ILCS 5/5-9-1.7(b)(1) (West 1998); People v. Montiel, 365 Ill. App. 3d 601, 606 (2006).

       Although the parties do not raise this issue, 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).

       Specifically, "[a] sentence which does not conform to a statutory requirement is void." People v.

       Arna, 168 Ill. 2d 107, 113 (1995). Section 5-9-1.7(b)(1) of the Code states "a fine of $100 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." 730 ILCS

       5/5-9-1.7(b)(1) (West 1998). "Sexual assault" is defined to include predatory criminal sexual

       assault of a child. 730 ILCS 5/5-9-1.7(a)(1) (West 1998). The fine may only be reduced or

       waived upon request of the victim or the victim's representative. 730 ILCS 5/5-9-1.7(b)(1)

       (West 1998).

¶ 11          Here, the record discloses no request by the victim or the victim's representative to reduce

       or waive this fine. Consequently, we hold that defendant's sentence is void to the extent it does

       not include the required $100 sexual assault fine. Id. Therefore, we exercise our authority to

       correct this void sentence and modify the judgment to include the statutorily mandated $100

       sexual assault fine on counts I and II for a total assessment of $200. Id.; People v. Smith, 2014

       IL App (4th) 121118, ¶ 77; see also Arna, 168 Ill. 2d at 113. Because defendant applied $500 of

       his bond to satisfy the erroneous sex crimes assessment and is now subject to two mandatory


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       $100 sexual assault fines, we order the clerk to issue to defendant a $300 refund. People v.

       Molidor, 2012 IL App (2d) 110006, ¶ 20.

¶ 12          Finally, we note that defendant's plea agreement does not become void because of the

       changes to his sentence. Montiel, 365 Ill. App. 3d at 606. "As a matter of common sense, the

       fines and fees are a minor issue and an inessential term of the agreement." Id. at 607.

       Consequently, the plea agreement stands despite the correction of the fines and fees issues in the

       sentence.

¶ 13                                             CONCLUSION

¶ 14          The judgment of the circuit court of Will County is vacated in part, modified in part, and

       remanded with directions.

¶ 15          Vacated in part and modified in part.

¶ 16          Cause remanded with directions.

¶ 17          JUSTICE WRIGHT, dissenting.

¶ 18          For the reasons set forth below, I contend reviewing courts should cease correcting

       isolated financial charges incorporated into an agreed sentence imposed by the trial court. I

       respectfully suggest the time has come for reviewing courts to begin strictly applying forfeiture

       for untimely challenges to individual fines or costs raised for the first time on appeal.

¶ 19          It is undisputed that during negotiations the parties first considered, calculated, and then

       agreed to the sum total of monetary costs the court would be required to order defendant to pay

       according to statute. The majority and I recognize, in spite of the good faith efforts of both the

       court and counsel, the agreed total of $6,056 included some unintentional financial errors.

¶ 20          My insistence on the application of forfeiture in this case would not be possible but for

       the trial court’s meticulous approach to the negotiated plea proceedings. The record documents

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       that the trial court made it very clear to this defendant that the State was agreeing to dismiss four

       serious felonies in exchange for defendant’s guilty pleas involving two sexual offenses. The

       court advised the defendant he was agreeing to pay a total of $6,056 as part of the deal. No

       more. No less. This sentencing hearing could serve as a blueprint for the forfeiture of mutual,

       good faith, mistakes regarding required fines, fees, and court costs to be ordered as part of an

       agreed sentence.

¶ 21          Consequently, I distinguish the decision in People v. Montiel, 365 Ill. App. 3d 601

       (2006), relied on by the majority, on this basis. In Montiel, the trial court did not consider,

       discuss, disclose, or advise the defendant of the total amount of fines, fees, and costs defendant

       was agreeing to pay. Hence, the Second District found it necessary to remand the matter back to

       the trial court with strong cautionary language as follows:

                "[T]he State and the trial courts should take particular care to fully inform

                defendants entering guilty pleas of all statutorily required fines and fees. If not

                clearly stated, fines and fees can be uncomfortably reminiscent of hidden charges

                in an abusive consumer contract." Montiel, 365 Ill. App. 3d at 607.

       Here, there were no hidden charges and defendant knew the precise total he would be required to

       pay before he paid the agreed amount in full. Montiel involves a very different procedural

       posture and is distinguishable.

¶ 22          It is well accepted that “ ‘the guilty plea and the sentence “go hand in hand” as material

       elements of the plea bargain.’ ” People v. Absher, 242 Ill. 2d 77, 87 (2011) (quoting People v.

       Evans, 174 Ill. 2d 320, 332 (1996)). Where a defendant argues the agreed sentence is void,

       existing case law supports a decision to excuse forfeiture in order to restore the status quo by

       allowing both sides to undo the plea agreement. In this appeal, defendant does not seek to set



                                                         6
       aside his plea agreement as void. Instead, this defendant would simply like a refund, without

       providing the State with an opportunity to reinstate dismissed charges. I submit that overlooking

       forfeiture in order to reduce the agreed sum total by several hundred dollars does not advance the

       interests of justice.

¶ 23           I recognize our supreme court has suggested forfeiture should be excused when an

       offender first applies for the statutory $5-per-day credit to reduce the balance due on court

       ordered fines. People v. Caballero, 228 Ill. 2d 79, 88 (2008). I agree allowing a belated

       application for credit involves a ministerial act by this court. However, a very different situation

       exists in this case. Here, defendant is not belatedly applying for a statutory credit that he

       neglected to first request in the trial court. Instead, this defendant asks our court to excise a $500

       monetary charge he knowingly agreed to pay.

¶ 24           I believe this defendant correctly agreed to pay and then paid a $500 DNA analysis fee as

       required for a conviction for sexual offense committed in 1998. Respectfully, I reject

       defendant’s strained analysis that the $500 assessment represented an unauthorized sex crime

       fine which was mislabeled by the circuit clerk with an “obviously errant citation” to the DNA

       assessment imposed pursuant to section 5-4-3(j) of the Code. 730 ILCS 5/5-4-3(j) (West 1998).

       I find no support in this record for defendant’s argument on appeal that he paid a $500 sex crime

       fine at all.

¶ 25           I submit the circuit clerk had it right. When these crimes occurred between 1998 and

       2000, the statutory DNA analysis fee applied only to sexual offenses and the amount for all DNA

       analysis fees for such sexual offenses was $500. 730 ILCS 5/5-4-3(j) (West 1998). In 2000, a

       statutory change permitted the court to order a $500 DNA analysis fee for other felony offenses.




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       Pub. Act 91-528, § 5 (eff. Jan. 1, 2000) (adding 730 ILCS 5/5-4-3(a-5)). Later, the statutory

       DNA analysis fee was reduced to $200, beginning on November 18, 2004.

¶ 26          It appears to me the parties simply agreed defendant should pay a $500 DNA analysis fee

       for the first conviction, as required in 1998. If an error exists, I submit the $200 DNA fee was

       erroneously imposed on the second conviction. It was not until two years after this plea

       agreement when our supreme court clarified the DNA analysis fee should only be paid once in a

       defendant’s lifetime, rather than imposed for each conviction. People v. Marshall, 242 Ill. 2d

       285, 296-97 (2011).

¶ 27          In addition, I agree with my respected colleagues, that the plea agreement should have

       required this defendant to also pay $200 for two individual $100 sexual assault fines that were

       omitted from the sum total of $6,056. 730 ILCS 5/5-9-1.7(b)(1) (West 1998). The error

       involving the unpaid $200 sexual assault fines is harmless because this amount offsets the second

       $200 DNA fee that this defendant arguably should not have paid based on subsequently decided

       case law.

¶ 28          I also note the parties incorrectly assumed the court could order defendant to pay costs

       only, without ordering defendant to pay any fine, such as the required sexual assault fine, as part

       of an authorized sentence for predatory sexual assault. When a fine is ordered, some financial

       penalties are reduced or calculated on a percentage of the fine ordered.

¶ 29          In the case at bar, the agreed $6,056 total required defendant to pay a criminal surcharge

       of $25, the amount to be imposed when no fine is included in the sentence, rather than a $15

       charge when a fine is imposed. 730 ILCS 5/5-9-1(c) (West 1998). Since the majority and I

       agree defendant should have paid a $100 sexual assault fine on each count, the agreed sum total

       should have required defendant to pay a $15 criminal surcharge for each count. People v. Smith,



                                                        8
       2014 IL App (4th) 121118, ¶ 73 (ordering the trial court on remand to impose the criminal

       surcharge fine on each of defendant’s convictions for aggravated criminal sexual assault, attempt

       aggravated criminal sexual assault, and home invasion). Since defendant paid one $25 criminal

       surcharge, he underpaid the statutorily required $30 criminal surcharges by $5 according to the

       1998 statutes.

¶ 30          Similarly, defendant paid one VCV fine of $25 in the absence of a court-ordered fine.

       725 ILCS 240/10(b) (West 1998). Again, due to the application of a $100 sexual assault fine, the

       VCV fine should have been calculated at the rate of $12 per count, for a total of $24. 725 ILCS

       240/10(b) (West 1998). Hence, defendant overpaid $1 by paying $25 dollars instead of the

       correct amount of $24 for two VCV fines. In addition, defendant should have paid a second $50

       court systems fine, which was omitted from the agreed total of $6,056. 55 ILCS 5/5-1101(c)

       (West 1998). See also People v. Larue, 2014 IL App (4th) 120595, ¶ 70. Hence, at this juncture,

       my calculations show defendant would owe the circuit clerk $54.

¶ 31          However, defendant paid a $15 automation fee, the amount required at the time of

       sentencing in 2009. Yet, defendant should have paid a $5 court automation fee based on the

       1998 statues. 705 ILCS 105/27.3a (West 1998). Defendant should have paid a $5 document

       storage fee rather than the agreed $15 document storage fee, which also appears to be the amount

       required at the time of sentencing in 2009. 705 ILCS 105/27.3c (West 1998). Defendant should

       have paid a $15 court security fee rather than $25 as agreed. 55 ILCS 5/5-1103 (West 1998).

       Thus, defendant overpaid these amounts by $30, and as a result, would now owe the clerk only

       $24, rather than $54, as discussed above. Based on all financial miscalculations, I conclude

       defendant should have paid $6,080 as required by statute rather than $6,056.




                                                       9
¶ 32          Such a small $24 discrepancy does not warrant excusing forfeiture in my view.

       Similarly, a $300 discrepancy, as determined by the majority, represents a 5% error concerning

       the payment of an agreed total of $6,056. Again, I note defendant does not contend the small

       discrepancy renders the entire plea agreement void or unenforceable.

¶ 33          Finally, I submit the efficient administration of justice is not served by excusing

       forfeiture in this case for another significant reason. Specifically, due to the passage of time, the

       circuit clerk no longer controls the $500 defendant paid in 2009. After defendant paid the agreed

       amount of $6,056 from his bond, the circuit clerk was required by statute to distribute $450 of

       the paid $500 DNA analysis fee to the State Treasurer within one month of receipt, while

       retaining 10% for the circuit clerk’s fund. See 730 ILCS 5/5-9-1.15(b) (West 2008). Without

       evidence to the contrary, I presume the circuit clerk in this case remitted $450 to the State

       Treasurer within 30 days of the plea agreement in 2009 for court costs identified as a DNA

       analysis fee. Now, in 2015, I believe it will be very difficult for the local circuit clerk to compel

       another elected official, the State Treasurer, to refund the circuit clerk’s office several hundred

       dollars to facilitate defendant’s refund.

¶ 34          After spending many hours comparing the amount defendant agreed to pay to the amount

       he should have agreed to pay in a perfect world, I have reached a very reassuring conclusion.

       Specifically, the bottom line shows, in my opinion, defendant underpaid the minimum

       mandatory fines and costs required from 1998 to 2000 by $24. I conclude neither the State nor

       the defense should be permitted to argue defendant paid too little or too much because forfeiture

       should be strictly applied. In my humble opinion, forfeiture precludes our modification of the

       financial terms of the plea agreement to add $200 for sexual assault fines or to subtract $500 for

       a purported erroneous sex fine.



                                                        10
¶ 35           I respectfully conclude defendant forfeited the sentencing issue by failing to challenge

       either the sentence or the entire plea agreement in the postconviction petition at issue in this

       appeal. I must also conclude the interests of justice do not warrant excusing forfeiture in this

       case.

¶ 36           For these reasons, I respectfully dissent.




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