People v. Breeden
| Decision Date | 25 November 2014 |
| Docket Number | No. 4–12–1049.,4–12–1049. |
| Citation | 23 N.E.3d 1260 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Thomas BREEDEN, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V. Kimmel, all of State Appellate Defender's Office, of Springfield, for appellant.
Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, David J. Robinson, and Kathy Shepard, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
delivered the judgment of the court, with opinion.
¶ 1 The trial court sentenced defendant, Thomas Breeden, to 58 months' imprisonment for failure to register as a sex offender (730 ILCS 150/ 6 (West 2008)). Defendant appeals, arguing the sentence is too severe. We do not find the sentence to be an abuse of discretion.
¶ 2 The State points out that three of the monetary assessments in this case are void because the circuit clerk, rather than a judge, imposed them and because case law regards them as fines. These are the assessments of $10 for the arrestee's medical expenses (730 ILCS 125/17 (West 2008)
), $10 for State Police services (705 ILCS 105/27.3a(1.5), (5) (West 2010)), and $5 for the drug court program (55 ILCS 5/5–1101(f) (West 2008)). The State further points out that a fourth assessment, a fine of $255 under section 10 of the Sex Offender Registration Act (730 ILCS 150/10 (West 2008) ), is void because even though a judge imposed it, the fine is less than the minimum amount of $500 that section 10 requires. Defendant agrees with the State's arguments regarding these four fines, and so do we.
¶ 3 Therefore, we vacate those four fines and remand this case to the trial court with directions to calculate and directly impose any mandatory fines, including a sex offender registration fine in the amount of $500, applying any monetary credit to which defendant is entitled. Otherwise, we affirm the trial court's judgment.
¶ 6 On January 15, 2010, the State filed an information against defendant in Champaign County, charging that on or about October 5, 2009, he violated section 6 of the Sex Offender Registration Act (730 ILCS 150/6 (West 2008)
) in that, being a “sex offender” within the meaning of section 2(A) (730 ILCS 150/2(A) (West 2008)), he failed to “register in person with the new agency of jurisdiction” within three days after changing his residence.
¶ 8 In a hearing on April 27, 2010, defendant said he wanted to plead guilty to the charge of failing to register as a sex offender. The trial court admonished him, telling him, among other things, the minimum and maximum punishments for the offense. The court said:
¶ 9 After confirming with defendant that he understood all the rights he would be giving up by pleading guilty and that he was pleading guilty of his own free will, the trial court asked counsel if there were any agreements. An assistant State's Attorney, Chris Kanis, replied:
¶ 10 In response to the trial court's queries, defendant denied anyone had promised him anything else, and he denied he had been forced or threatened. Upon defendant's reaffirmation of his desire to plead guilty to the charge of failure to register as a sex offender, the court accepted his guilty plea.
¶ 11 The trial court proceeded immediately to sentencing. After hearing the prosecutor's brief summary of defendant's criminal record, the court imposed the following sentence:
¶ 12 The written sentencing order, dated and entered the same day, incorporated the terms of the plea agreement and stated the probation service fee would be $15 per month, but it did not specify the amount of the Violent Crime Victims Assistance fee. The order required defendant to “pay all fines, fees and costs as authorized by statute” and to pay all financial obligations within 180 days.
¶ 13 A docket entry dated the same day, April 27, 2010, said: “Fine + Cost Fee $1604.55 Signed Judge DIFANIS THOMAS J.” In addition to the 24 months of probation; the 18 days in jail; the credit for 9 days; and the submission of blood, saliva, and tissue specimens, the docket entry imposed the following monetary assessments:
| “Fine + Cost | 519.55 | ||
| PROBATION MONITORIN | 360.00 | ||
| PUBLIC DEFENDER | 450.00 | ||
| ST POLICE SERVICES | 10.00 | ||
| CRIME STOPPERS | 10.00 | ||
| STATE OFFENDER DNA | .00 | ||
| SEXUAL OFFENDER REG | 255.00.” |
¶ 14 The record contains a printout from the offender DNA database of the Illinois State Police. According to the printout, defendant had already submitted a DNA specimen. He did so on June 2, 1997.
¶ 16 On April 23, 2012, the State filed a petition to revoke defendant's probation. According to the petition, one of the conditions of probation was that he refrain from violating any criminal statute. The petition alleged that on April 3, 2012, he violated this condition by violating two subsections of section 11–9.4–1 of the Criminal Code of 1961 (720 ILCS 5/11–9.4–1 (West 2010)
). He allegedly violated subsection (b) (720 ILCS 5/11–9.4–1(b) (West 2010)) by knowingly being present in a public park, Lincoln Park, in Danville. He allegedly violated subsection (c) (720 ILCS 5/11–9.4–1(c) (West 2010)) by knowingly loitering on a public way within 500 feet of Lincoln Park. (Even though the violation of probation occurred in Vermilion County, the Champaign County circuit court has jurisdiction because the original offense of failure to register as a sex offender occurred in Champaign County.)
¶ 17 On August 1, 2012, the trial court held a hearing on the State's petition to revoke probation. Defense counsel told the trial court “this [was] going to be an admission and stipulation.” After admonishing defendant and confirming that his admission was voluntary (see Ill. S.Ct. R. 402A(a), (b)
(eff. Nov. 1, 2003)), the court said it was ready to hear the factual basis (see Ill. S.Ct. R. 402A(c) (eff. Nov. 1, 2003)).
¶ 18 The prosecutor represented that the evidence would show the following. Around April 3, 2012, defendant was in the process of trying to buy a car from Wright Motors, a retail merchant in Danville. Wright Motors had lent him a vehicle to use temporarily, pending the sale. The sale fell through, and Wright Motors requested defendant to give back the vehicle it had lent him. In telephone conversations with Wright Motors, defendant falsely said that he was in Bloomington and that he was unable to return the vehicle. One of the managers of Wright Motors, a man named Carter, went to Lincoln Park to pick up his three-year-old son, and he noticed the loaner vehicle parked in a parking lot within 500 feet of the park. He approached the vehicle and saw defendant sitting inside it. Carter called two other employees of Wright Motors, who then repossessed the vehicle from defendant. Someone also called the police, and the police arrived and placed defendant under arrest. Defendant admitted he had lied to Wright Motors about his location, and he admitted being in the park.
¶ 19 The trial court asked defense counsel if she believed the State had witnesses who, if called, would testify substantially as indicated in the factual basis. Defense counsel answered yes. The court accepted defendant's admission and stipulation to the allegations in the petition to revoke probation, and the court revoked his probation. The court also ordered a presentence investigation report and a sex offender evaluation.
¶ 21 A probation officer, Jeremy M. Jessup, wrote a presentence investigation report, dated September 24, 2012. According to the report, defendant was 46 years old. He had an eleventh-grade education and lacked a general equivalency diploma. He was currently unemployed because of an injury, torn ligaments
and tendons in his right ankle, which disabled him from walking on an incline of 45 degrees or more. From March 2007 to November 2011 he worked as a grain mover until his employer fired him because of the limitations imposed by his ankle injury. From 2005 to 2007 he worked through Labor Ready. He was now surviving on food stamps. He had not applied for disability because he preferred to be employed.
¶ 22 Defendant had the following previous felony convictions. In September 1989, the La Salle County circuit court sentenced him to two years' imprisonment for...
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