                               Illinois Official Reports

                                      Appellate Court



                           People v. Bruun, 2015 IL App (2d) 130598



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


District & No.           Second District
                         Docket No. 2-13-0598


Filed                    February 27, 2015


Held                       The trial court’s denial of defendant’s motion to vacate an order
(Note: This syllabus requiring defendant to make monthly restitution payments after the
constitutes no part of the expiration of the five-year period provided under section 5-5-6 of the
opinion of the court but Unified Code of Corrections for such orders was affirmed, since the
has been prepared by the restitution order remained in effect, even though the five-year
Reporter of Decisions limitation had expired, and the balance of the restitution order might
for the convenience of still be collectable.
the reader.)



Decision Under           Appeal from the Circuit Court of Kane County, No. 98-CF-517; the
Review                   Hon. James C. Hallock, Judge, presiding.



Judgment                 Affirmed.



Counsel on               Thomas A. Lilien and Josette Skelnik, both of State Appellate
Appeal                   Defender’s Office, of Elgin, for appellant.

                         Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                         Bauer and Joan M. Kripke, both of State’s Attorneys Appellate
                         Prosecutor’s Office, of counsel), for the People.
     Panel                     JUSTICE McLAREN delivered the judgment of the court, with
                               opinion.
                               Justices Jorgensen and Birkett concurred in the judgment and opinion.




                                                OPINION

¶1         Defendant, David Bruun, appeals from an order of the circuit court of Kane County
       denying his pro se motion to vacate an order entered on June 14, 2006, that required him to
       make monthly restitution payments pursuant to section 5-5-6 of the Unified Code of
       Corrections (Code) (730 ILCS 5/5-5-6 (West 2006)). Section 5-5-6(f) provides that, when
       restitution is paid in installments, the trial court shall fix a period of time no longer than five
       years for payment of restitution. 730 ILCS 5/5-5-6(f) (West 2006). Defendant maintains that,
       upon the expiration of the five-year period, the restitution order became void. We affirm.
¶2         Following a bench trial, defendant was found guilty of five counts each of theft (720
       ILCS 5/16-1 (West 1996)) and financial exploitation of an elderly or disabled person
       (financial exploitation) (720 ILCS 5/16-1.3 (West 1996)). The trial court entered judgment of
       conviction on a single count each of theft and financial exploitation. Defendant had been a
       cotrustee of a trust established for the benefit of David Rasmussen from the proceeds of the
       settlement of a medical malpractice claim. Rasmussen had suffered two strokes following
       hip-replacement surgery and was paralyzed on his right side. The convictions stemmed from
       evidence that defendant: (1) had made unauthorized loans of funds from the trust to a
       fledgling business that employed defendant as its chief executive officer; and (2) had
       withdrawn funds from the trust and used the funds for gambling and other personal purposes.
       The trial court sentenced defendant to two concurrent eight-year prison terms and ordered
       him to pay $430,812 in restitution.
¶3         Defendant appealed. A divided panel of this court concluded that the evidence was
       sufficient to sustain the theft conviction and that the trial court did not abuse its discretion by
       sentencing defendant to prison, rather than to probation. People v. Bruun, No. 2-02-0118
       (2003) (unpublished order under Supreme Court Rule 23) (Bruun I). However, the majority
       agreed with defendant, and the State conceded, that “one-act, one-crime” principles required
       that one of defendant’s convictions be vacated. The State elected to retain the theft
       conviction, and we vacated the financial-exploitation conviction. Furthermore, the parties
       agreed that defendant was entitled to a new restitution hearing to determine the correct
       amount of restitution and to set a schedule for payments. We vacated the restitution order and
       remanded for further proceedings.
¶4         On remand, on June 14, 2006, Judge Philip L. DiMarzio entered an order setting
       restitution at $444,875 and finding that defendant was entitled to credits totaling
       $190,468.62. The June 14, 2006, restitution order further provided, in pertinent part, as
       follows:



                                                    -2-
                  “[Defendant] is to make monthly payments of $450.00 starting 7/15/06 based on
              15% of his net current salary. This is for the statutory period of 5 years until 6/14/11.
              The amount is set for review on 6/14/07 ***. Either party may notice the case up if
              [defendant’s] circumstances change. ***
                  At the end of the 5 year period a new restitution order shall be entered providing
              for the remainder of the restitution to be paid ***.”
     Judge DiMarzio subsequently reduced the amount of defendant’s monthly installment
     payments, but he did not extend the period during which payments were due.
¶5        In July 2010, the State initiated civil contempt proceedings against defendant, claiming
     that in October 2008 defendant ceased making restitution payments. Defendant
     unsuccessfully moved to dismiss the contempt proceedings and filed a notice of appeal from
     the order denying that motion. The State moved to dismiss the appeal for lack of jurisdiction.
     We granted the motion. People v. Bruun, No. 2-10-1153 (2011) (minute order).
¶6        On December 20, 2013, Judge James C. Hallock found defendant in contempt and
     continued the matter until February 20, 2012, in order to afford defendant an opportunity to
     purge himself of contempt by making a payment in the amount of $14,700. Defendant
     tendered that payment, but also filed a “Motion to Vacate Purge/Restitution Order.” Judge
     Hallock denied the motion on May 31, 2013, entering a written order that provided, in
     pertinent part, “Judge DiMarzio’s order as to restitution remains in effect. Court finds
     restitution is vested right in behalf of victim.” Defendant filed a timely notice of appeal.
¶7        Defendant asserts that “[b]ecause the June 2006 order directing that [defendant] make
     monthly restitution payments became unenforceable, and thus void, as of June 14, 2011, [the
     May 31, 2013,] order directing that the [June 2006] order remain in full force and effect was
     likewise void and must be vacated.” (Emphasis added.) The argument is meritless. It is true
     that under the June 2006 restitution order defendant was not obligated to make additional
     monthly payments beyond those that were due during the five-year period. But it does not
     follow that the order became unenforceable as to unpaid amounts that became due during the
     five-year period. More importantly, an otherwise valid judgment or order does not “become”
     void merely because the party against whom it was entered has fulfilled his or her obligations
     under the judgment or has otherwise been released from those obligations due to the passage
     of time.
¶8        Indeed, defendant’s conclusions seem to be at odds with his own understanding of
     voidness principles. Defendant states that “[a] court’s order is void in three circumstances: 1)
     when the court lacks personal jurisdiction over a party; 2) when the court lacks subject matter
     jurisdiction; and 3) when the court, due to a lack of statutory authority, lacks the power to
     render the particular judgment in question.” This statement is largely correct.1 However,
     none of these circumstances exists with respect to the June 2006 restitution order. There is no
     question that the trial court possessed jurisdiction over the person of defendant and the


         1
           We note that this court has described the third circumstance–the lack of power to render a
     particular judgment–without reference to a court’s “statutory authority.” See People v. Rodriguez, 355
     Ill. App. 3d 290, 296 (2005). For present purposes, however, defendant’s formulation is accurate: a trial
     court in a criminal proceeding lacks the power to impose a sentence that is unauthorized by statute.
     People v. Arna, 168 Ill. 2d 107, 113 (1995).

                                                     -3-
       subject matter and complied with the statutory requirement that installment payments be
       made over a period not to exceed five years.
¶9         Referring to the May 31, 2013, order that denied his motion to vacate, defendant argues
       that the trial court “lacked the statutory authority to extend [defendant’s] obligation to make
       monthly restitution payments past June of 2011, and therefore the order providing that he do
       so was void.” Defendant misconstrues the May 31, 2013, order. In that order, the trial court
       expressly found that restitution was “[a] vested right in behalf of [the] victim” and that the
       restitution order “remain[ed] in effect” We read the order to mean that defendant remained
       obligated to make full restitution, not that he was required to make further monthly
       installment payments. Indeed, because the restitution order remains in effect, then so does the
       provision of that order requiring monthly payments only until June 2011.2
¶ 10       To the extent that the May 31, 2013, order might be unclear, it is proper to consult the
       report of proceedings to determine the trial court’s intent. People v. Cooper, 132 Ill. 2d 347,
       353 (1989). Doing so bolsters our conclusion that the trial court did not intend to extend the
       installment-payment schedule beyond the period provided for by statute and by Judge
       DiMarzio’s restitution order. In announcing his ruling, Judge Hallock stated as follows:
                    “At this time the Court will deny the defendant’s motion to vacate the restitution
                order, and at this time the Court will make a finding that once the restitution order is
                entered it is–well, it’s comparable to a finding for an order for child support. As each
                child support installment becomes due, it becomes a vested right to the payee; and I
                think when the restitution order is entered, it becomes a vested right to the victim.
                    And so the Court will not vacate the purge [sic]. Now, that doesn’t mean that it’s
                actually collectable. The burden will be on, in this case, the State to try to collect it in
                the future; but at this point, the Court will not vacate the restitution. And maybe the
                State can collect it, maybe the State can show some reason it should be collected,
                maybe they’re not able to show that. But that will be at a different proceeding in a
                different level of collection action.”
       At that point, the following exchange occurred:
                    “MS. GLEASON [Assistant State’s Attorney]: So, Judge, at this point you are not
                indicating that he has to make any kind of monthly payments.
                    THE COURT: At this point I’m not. Now, the State can now review the file to see
                what it thinks would be the appropriate collection vehicle, and maybe the State can be
                successful, maybe the State can’t be successful.
                    [Defendant has] raised some issues that go to ability to pay, and that becomes a
                component of the State’s attempt to actually collect this.
                    But I–at this time, the Court will not vacate the restitution. And then, Ms.
                Gleason, you and your office can decide what you want to do next; and then once you


           2
            Defendant correctly notes that the June 2006 restitution order contemplated that, at the end of the
       five-year period, an additional restitution order would be entered. Section 5-5-6(i) provides that if a
       defendant fails to make restitution and the failure is not willful, the court may impose an additional
       period of no longer than two years for payment. 730 ILCS 5/5-5-6(i) (West 2006). The trial court never
       entered such an order, however, so we have no occasion to resolve the purely academic question of
       whether the court would have exceeded its statutory authority had it done so.

                                                      -4-
                do, [defendant] will have an opportunity to respond. And maybe you are able to show
                that you should collect, maybe you are not able. ***
                    But I think that’s the next step. I think this motion related to whether we should
                wipe out the entire restitution, and I don’t think we should.
                    MS. GLEASON: Your Honor, just if I may, part of the argument last time was
                regarding Judge DiMarzio’s order [reducing the monthly restitution payments]. So I
                guess what I’m asking is you are not saying that he has to pay any monthly fee [sic] at
                this time, you are just not vacating the restitution.
                    THE COURT: Well, Judge DiMarzio’s order is still his order. It is still the law of
                the file.
                    MS. GLEASON: Okay.
                    THE COURT: And if the State is able to do something with that, maybe you can.
                    ***
                    THE COURT: Maybe you are not able to. Maybe the defendant is able to show
                that you are not able to. But that’s different than what the motion addressed.”
                (Emphases added.)
¶ 11        Judge Hallock’s remarks indicate that he did not intend to modify Judge DiMarzio’s
       order. Consonant with his finding that restitution was a vested right, Judge Hallock
       recognized that the balance might still be collectable. Defendant acknowledges that a
       restitution order gives rise to a judgment lien that is enforceable in the same manner as a lien
       arising from a civil judgment. See 730 ILCS 5/5-5-6(m) (West 2006); People v. Mitchell, 241
       Ill. App. 3d 1094, 1098 (1993). Thus, even though the obligation to make installment
       payments expired, the trial court correctly ruled that the restitution order remained in effect.
¶ 12        For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 13      Affirmed.




                                                  -5-
