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                               Appellate Court                          Date: 2016.01.25
                                                                        14:42:29 -06'00'




                    People v. Hayes, 2015 IL App (2d) 141211



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            LARRY C. HAYES, Defendant-Appellant.




District & No.     Second District
                   Docket No. 2-14-1211



Filed              October 21, 2015
Rehearing denied   December 7, 2015



Decision Under     Appeal from the Circuit Court of Lake County, No. 93-CF-1354; the
Review             Hon. Victoria A. Rossetti, Judge, presiding.




Judgment           Affirmed as modified.




Counsel on         Larry C. Hayes, of Dixon, appellant pro se.
Appeal

                   Michael G. Nerheim, State’s Attorney, of Waukegan (Lawrence M.
                   Bauer and Joan M. Kripke, both of State’s Attorneys Appellate
                   Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE HUDSON delivered the judgment of the court, with
                              opinion.
                              Justices McLaren and Zenoff concurred in the judgment and opinion.

                                                OPINION

¶1         Defendant, Larry C. Hayes, appeals after the trial court granted in part and denied in part
       the relief he sought in a petition under section 2-1401 of the Code of Civil Procedure (Code)
       (735 ILCS 5/2-1401 (West 2014)) and denied his ensuing motion to reconsider. He asserts
       that the court erred in failing to recognize that an error in the sentence–a fine imposed of less
       than the amount mandated by section 10 of the Violent Crime Victims Assistance Act (Act)
       (725 ILCS 240/10 (West 1992))–rendered his entire sentence void. The State argues that the
       sentence was void only to the extent that it failed to comply with the Act; it further asserts
       that the Act requires that defendant receive a fine of $130,000. We agree with the State on
       both points. We thus affirm the court’s ruling and impose a fine of $130,000.

¶2                                         I. BACKGROUND
¶3         On July 14, 1993, a grand jury indicted defendant on one count of unlawful possession
       with intent to deliver 900 grams or more of a substance containing cocaine (720 ILCS
       570/401(a)(2)(D) (West 1992)) and one count of unlawful possession of 900 grams or more
       of a substance containing cocaine (720 ILCS 570/402(a)(2)(D) (West 1992)). A jury
       convicted defendant on both counts, and the court sentenced him to 55 years’ imprisonment
       on the possession-with-intent-to-deliver count. The court further imposed a street-value fine
       of $1.3 million, the sole fine or fee that it imposed. On March 20, 1995, we affirmed the
       conviction. People v. Hayes, No. 2-94-0288 (1995) (unpublished order under Supreme Court
       Rule 23).
¶4         Defendant then filed a series of petitions collaterally attacking his conviction. He filed the
       most recent of these, a petition under section 2-1401 of the Code, on August 15, 2014. In his
       most recent filing, defendant asserted that his sentence was void because the court had failed
       to impose the fine mandated by section 10 of the Act, which defendant stated should have
       been $25. He noted that a fine appeared in the court’s records, having apparently been added
       by the clerk. Defendant argued that the clerk lacked power to impose any fine, so that the
       fine was not actually part of his sentence. Thus, he argued, because his sentence, viewed
       properly, lacked a mandatory portion, it was void.
¶5         On September 25, 2014, the court entered a written ruling that denied defendant all relief
       except for vacating the fine imposed by the clerk. The court noted that the record implied that
       the clerk had assessed a fine of $20 for “VICTIMS, CRIM ASSIST.” Since the record gave
       no sign that the court imposed the fine, the court concluded that the clerk must have added it.
       Citing People v. Evangelista, 393 Ill. App. 3d 395, 401 (2009), the court ruled that imposing
       a fine was outside the clerk’s authority. Further, the Act required that the fine be $130,000.
       However, the void fine had no effect on the validity or finality of the properly imposed
       portions of defendant’s sentence. Because it concluded that the absence of the required fine
       did not invalidate the other portions of defendant’s sentence, the court declined to impose the
       fine.

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¶6         On October 22, 2014, defendant filed a “Motion for Reduction of Sentence or in
       alternative Motion for Rehearing.”1 He asserted that, because his sentence lacked the fine
       mandated by the Act, it continued to be void, incomplete, and nonfinal. He argued that, given
       the lack of a final order, he could properly move for reconsideration of his entire sentence.
       The court denied the motion on October 29, 2014. Defendant timely appealed.

¶7                                            II. ANALYSIS
¶8          On appeal, defendant again contends that his sentence is void and that, as a result, no
       final judgment exists in his criminal case. He asserts that he is thus entitled to not only the
       mandated sentence but also a new sentencing hearing. He concedes that, based on the $1.3
       million street-value fine, the fine under the Act would necessarily be $130,000. The State
       responds that the court’s only error was in failing to impose the fine mandated by the Act; it
       asks us to correct that omission.
¶9          We hold that defendant’s sentence is void only to the extent that the court failed to
       impose the mandatory fine under the Act and that thus no new sentencing hearing is required.
       The finality of the other portions of his sentence, specifically including his term of
       imprisonment, is not affected by the defect of the missing fine. Additionally, we hold that
       this court has jurisdiction and the duty to correct defendant’s sentence by imposing the
       missing fine.
¶ 10        Initially, we note that we have jurisdiction of this appeal under Illinois Supreme Court
       Rule 304(b)(3) (eff. Feb. 26, 2010):
                “The following judgments and orders are appealable without the finding [of
                immediate appealability] required for appeals under paragraph (a) of this rule:
                                                   ***
                     (3) A judgment or order granting or denying any of the relief prayed in a petition
                under section 2-1401 of the Code of Civil Procedure.”
       The court granted relief, vacating the fine that the clerk had improperly imposed, but denied
       defendant the new sentencing hearing he sought.
¶ 11        We further note that defendant’s filing of a section 2-1401 petition vested the trial court
       with jurisdiction to modify defendant’s sentence. A party may properly challenge a void
       order “at any time or in any court, either directly or collaterally” (People v. Thompson, 209
       Ill. 2d 19, 25 (2004)), provided that the matter has been brought before the court in a way
       that gives it jurisdiction (People v. Flowers, 208 Ill. 2d 291, 307 (2003)). A section 2-1401
       petition, such as that which defendant filed, is a proper means for challenging an order as
       void. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002). Thus, defendant’s
       petition allowed the court to modify his sentence. Similarly, defendant’s appeal puts his
       voidness claim properly before this court.
¶ 12        Defendant’s argument on appeal implies that the trial court, having never imposed a final
       judgment, never lost jurisdiction to modify the sentence–that the missing part of defendant’s
       sentence leaves all of his sentence open for reconsideration. He suggests that in the absence
       of a final sentence the passage of years is not a bar to the timely filing of a postsentencing

           1
            For jurisdictional purposes, this motion was effectively a motion to reconsider the partial denial of
       the section 2-1401 petition.

                                                       -3-
       motion under section 5-4.5-50(d) of the Unified Code of Corrections (Code of Corrections)
       (730 ILCS 5/5-4.5-50(d) (West 2014)).
¶ 13       In support of his argument, defendant looks to decisions such as People v. Garcia, 179 Ill.
       2d 55, 73 (1997). In Garcia, the supreme court held that, where the sentence imposed was
       void for failure to conform to a statutory requirement, the rule against increasing a sentence
       on resentencing was inapplicable because any attempt to apply that rule would be “premised
       on the erroneous assumption that there is a valid sentence to increase.” Garcia, 179 Ill. 2d at
       73. Defendant reads Garcia as standing for the proposition that the whole of a sentence is
       void as long as some part of the sentence is void. That is not the law, as we now discuss.
¶ 14       A sentence is void to the extent that it fails to comply with the relevant statutory
       mandates, but only to that extent. Illinois courts most frequently note this rule as to sentences
       that exceed a statutory maximum. For instance, in People v. Brown, 225 Ill. 2d 188, 205
       (2007), the supreme court stated that “while a sentence, or portion thereof, not authorized by
       statute is void [citation], it is void only to the extent that it exceeds what the law permits” and
       that the “legally authorized portion of the sentence remains valid.” However, our courts
       recognize the rule as to sentences that have other defects. In People v. Donelson, 2013 IL
       113603, ¶ 15, the supreme court held that, where a statute required that the defendant’s
       sentences be served consecutively, the “sentences [were] void to the extent they were ordered
       to be served concurrently.” Thus, defendant’s sentence here was void only to the extent that
       the fine under the Act was not the mandated amount and was imposed by the clerk.
¶ 15       The competing proposition, of which defendant is a proponent, is that no part of a
       sentence is valid while a mandatory fine is missing. This proposition strains credulity on
       even slight consideration. Defendant’s position requires us to believe that he and others like
       him have spent years in prison without any enforceable sentencing order. We do not accept
       that a person is imprisoned without due authority when, as here, a fine is not validly imposed.
¶ 16       The State asks that we impose the fine of $130,000 mandated by the Act. Defendant
       replies that, if we do this, either we concede that his sentence was incomplete and nonfinal
       or, alternatively, we increase his sentence as is barred by section 5-4.5-50(d) of the Code of
       Corrections (730 ILCS 5/5-4.5-50(d) (West 2014)). We have already concluded that only the
       defective portion of the sentence is void. Further, as held in People v. Arna, 168 Ill. 2d 107,
       113 (1995), we have the power to correct an unauthorized sentence without remand and
       without violating the rule against increasing a sentence on appeal. Moreover, we have the
       duty to make that correction. People v. Harper, 345 Ill. App. 3d 276, 284 (2003). We
       therefore add the fine.

¶ 17                                       III. CONCLUSION
¶ 18       For the reasons stated, we affirm the court’s ruling on defendant’s section 2-1401 petition
       except that we modify his sentence to reflect the $130,000 fine mandated by the Act. As part
       of our judgment, we grant the State’s request that defendant be assessed $50 as costs for this
       appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls, 71 Ill. 2d 166, 179
       (1978).

¶ 19      Affirmed as modified.



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