People v. Adame

• Decision Date: 09 January 2018
• Docket Number: No. 2–15–0769,2–15–0769
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Jeramy D. ADAME, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (2d) 150769

94 N.E.3d 248

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Jeramy D. ADAME, Defendant–Appellant.

No. 2–15–0769

Appellate Court of Illinois, Second District.

Opinion filed January 9, 2018

Michael J. Pelletier, Thomas A. Lilien, and April D. Kentala, of State Appellate Defender's Office, of Elgin, for appellant.

Michael G. Nerheim, State's Attorney, of Waukegan (Patrick Delfino, Lawrence M. Bauer, and Stephanie Hoit Lee, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE SPENCE delivered the judgment of the court, with opinion.

¶ 1 Defendant, Jeramy D. Adame, appeals the trial court's order of restitution and imposition of various fines and fees following his conviction of misdemeanor theft of property not exceeding $500 in value ( 720 ILCS 5/16–1(a)(1)(A), (b)(1) (West 2012)). He contends that the court improperly ordered $1100 in restitution when it previously found that the evidence was insufficient to show that he took property valued in excess of $500. He also contends that the court improperly imposed a public-defender fee and that two other fees must be reduced. We vacate the restitution order and the public-defender fee and remand for a proper hearing on those matters. We also reduce the two other fees.

¶ 2 I. BACKGROUND

¶ 3 In January 2012, defendant was charged by information with one count of felony theft, in that he knowingly obtained control of furniture valued in excess of $500 but not in excess of $10,000 ( 720 ILCS 5/16–1(a)(1)(A), (b)(4) (West 2012)). On October 9, 2012, the date that the case was set for trial, the State nol-prossed the charge. Defendant was charged a $250 public-defender fee.

¶ 4 On November 27, 2013, the State again charged defendant with felony theft and added counts of theft and criminal damage to property. Defendant filed a certificate of assets showing that he was unemployed and that his only source of income was food stamps. A public defender was appointed. On April 20, 2015, a jury trial was held on the theft charges.

¶ 5 At trial, there was evidence that defendant rented a house from Betty and Lester McCaffery. While renting the house, defendant owned a hutch that was designed to sit atop a credenza. Betty allowed defendant to use her credenza for the hutch. Defendant was later evicted, and the McCafferys called the police to report that defendant had taken the credenza and an engine that they had stored at the house.

¶ 6 Betty estimated that the credenza was about 10 years old. As evidence of value, the State offered a printout of a new "Old Door Reclaimed Wood Credenza" on sale at a website for $1099.99. Betty admitted that the printout did not depict the credenza that had been taken. She said that the police asked her to look through pictures online to find the same kind of credenza and that, when she was unable to find it, she selected an "average type" of credenza. She said that she was drawn to the one in the printout because of the length of the legs and the fact that it had drawers. The credenza that was taken was made of maple instead of reclaimed wood. In response to defense counsel's concerns about the admissibility of the printout, the court held that the difference between the credenzas went to the weight of the evidence and not the admissibility. A photograph that defendant had taken of the credenza was also admitted into evidence. It showed scratches on the top of the credenza. Betty testified that it was not in that condition when she originally left it with defendant.

¶ 7 The jury found defendant not guilty of theft of the engine and guilty of theft of the credenza. Defendant filed a posttrial motion, arguing that the State failed to prove that the fair market value of the credenza was over $500 and seeking a judgment of the lesser included offense of misdemeanor theft of property not exceeding $500 in value. The trial court granted the motion, finding that there was insufficient evidence that the credenza was valued at more than $500. The sentencing hearing was held immediately after.

¶ 8 At sentencing, the court reviewed the presentence investigation report (PSI). The PSI was corrected without objection to reflect Betty's testimony that the credenza was worth $1100. In regard to restitution, defense counsel asked that the court allow defendant to return the credenza. Defendant was sentenced to probation and 120 days' periodic imprisonment. Without objection from defendant, the court also ordered $1100 in restitution, noting that it was not ordering the credenza returned since it was not convinced that the credenza was in substantially the same condition as when it was taken. The court assessed various fines and fees, including two $12 assessments for court automation and for the state police operations fund.

¶ 9 The court also imposed a public-defender fee. Before doing so, the court stated that it could hold a hearing on the fee as part of the sentencing hearing, adding "[o]f course, I know a lot about the situation from the PSI and the argument." The court then asked defense counsel, "[i]s there anything in addition or do you want a separate hearing on what the fee for a Public Defender should be or can I do it all now?" Counsel replied, "[y]ou can do it all now, Judge." When asked if there was anything to add, defense counsel replied that there was not. Without any analysis as to how it reached the figure, the court then imposed $250 for the public-defender fee. The PSI indicated that defendant had income of $300 per month plus food stamps, lived expense-free with his grandparents, owned a 1996 Ford Taurus, and had approximately $10,000 in medical debt. Defendant appeals.

¶ 10 II. ANALYSIS

¶ 11 Defendant first argues that it was plain error for the trial court to order restitution of $1100 when it specifically found that the State failed to prove beyond a reasonable doubt that the credenza was worth more than $500. In the alternative, defendant argues that his counsel was ineffective for failing to challenge the restitution amount.

¶ 12 Ordinarily, a sentencing issue, like restitution, not raised during the sentencing hearing or in a postsentencing motion results in forfeiture of that issue on appeal. People v. Higgins , 2014 IL App (2d) 120888, ¶ 6, 382 Ill.Dec. 756, 13 N.E.3d 169. However, plain error may be considered. People v. Jones , 206 Ill. App. 3d 477, 482, 151 Ill.Dec. 489, 564 N.E.2d 944 (1990). "To obtain relief under the plain-error rule, a defendant must first show ‘a clear or obvious error.’ " People v. Johnson , 2017 IL App (2d) 141241, ¶ 42, 414 Ill.Dec. 381, 80 N.E.3d 114 (quoting People v. Hillier , 237 Ill. 2d 539, 545, 342 Ill.Dec. 1, 931 N.E.2d 1184 (2010) ). " ‘In the sentencing context, a defendant must then show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing.’ " Id. (quoting Hillier , 237 Ill. 2d at 545, 342 Ill.Dec. 1, 931 N.E.2d 1184 ). "Under either prong, the defendant has the burden of persuasion." Id.

¶ 13 A trial court is authorized to order restitution as part of a defendant's sentence in any criminal case. 730 ILCS 5/5–5–6, 5–6–3(b)(8) (West 2012). The court may impose "restitution in cash, for out-of-pocket expenses, damages, losses, or injuries found to have been proximately caused by the conduct of the defendant." 730 ILCS 5/5–5–6(a) (West 2012). It is within the court's sound discretion whether to order restitution in a criminal case, and we will overturn the court's ruling only if it was an abuse of discretion. In re Shatavia S. , 403 Ill. App. 3d 414, 418, 343 Ill.Dec. 178, 934 N.E.2d 502 (2010).

¶ 14 "Restitution should be determined by using the fair market value of the property at the time the property was damaged or destroyed." People v. Jones , 145 Ill. App. 3d 835, 839, 99 Ill.Dec. 636, 495 N.E.2d 1371 (1986). "Alleged losses which are unsupported by the evidence must not be used as a basis for awarding restitution." Jones , 206 Ill. App. 3d at 482, 151 Ill.Dec. 489, 564 N.E.2d 944. "The court must determine the actual costs incurred by the victim; a guess is not sufficient." People v. Dickey , 2011 IL App (3d) 100397, ¶ 25, 356 Ill.Dec. 427, 961 N.E.2d 816. Evidence of value can be found in the PSI. Id. ¶ 26.

¶ 15 "A defendant may be ordered to make restitution if the losses sustained ‘were proximately caused by the same criminal conduct of the defendant as that of which he was convicted.’ " People v. Fontana , 251 Ill. App. 3d 694, 706, 190 Ill.Dec. 863, 622 N.E.2d 893 (1993) (quoting People v. Nicholl , 210 Ill. App. 3d 1001, 1013, 155 Ill.Dec. 423, 569 N.E.2d 604 (1991) ). "The court may order restitution for losses incurred by the same victim as the result of the same criminal conduct of the defendant, even if those losses were not set forth in the charging instrument." Id. "However, restitution is improper for matters unrelated to the charges at issue." Id.

¶ 16 Accordingly, in People v. Bradford , 207 Ill. App. 3d 436, 152 Ill.Dec. 528, 566 N.E.2d 56 (1991), the defendant was charged with two counts of forgery. The first count was based on a credit-card charge of $424.94 and the second count on a $400 check. The defendant pleaded guilty to the first count, and the second was nol-prossed. At sentencing, the defendant was ordered to pay restitution in the amount of $1353.78 based on eight separate acts of forgery. The Fourth District found that the trial court had exceeded its authority under section 5–5–6, because the total restitution amount did not result from the act of forgery for which the defendant was being sentenced. Id. at 439, 152 Ill.Dec. 528, 566 N.E.2d 56. Likewise, in People v. McClard , 359 Ill. App. 3d 914, 917, 296 Ill.Dec. 179, 834 N.E.2d 984 (2005), the Third District held that the trial court exceeded its authority when it ordered restitution based on nol-prossed forgery charges, because the defendant...