People v. Copeland

• Decision Date: 16 June 2020
• Docket Number: No. 2-18-0423,2-18-0423
• Citation: 2020 IL App (2d) 180423,150 N.E.3d 185,440 Ill.Dec. 125
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Freddy COPELAND, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 180423

150 N.E.3d 185

440 Ill.Dec. 125

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

v.Freddy COPELAND, Defendant-Appellant.

No. 2-18-0423

Appellate Court of Illinois, Second District.

Opinion filed June 16, 2020

James E. Chadd, Thomas A. Lilien, and Steven L. Walker, of State Appellate Defender's Office, of Elgin, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and John G. Barrett, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Defendant, Freddy Copeland, entered open guilty pleas to predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2014)) and aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i)) and was sentenced to consecutive prison terms of six years and four years, respectively. The trial court ordered him to pay "restitution" to a private company that transported him from Texas to Illinois. Defendant moved to reconsider the sentence, but he did not claim any error in the award of restitution. The court denied the motion, and he appealed.

¶ 2 On appeal, defendant contends that the award of restitution must be vacated because the transport company, which the Kane County Sheriff's Office hired, was not a "victim" as defined by section 5-5-6 of the Unified Code of Corrections ( 730 ILCS 5/5-5-6 (West 2018) (restitution statute)). Defendant concedes that the same amount was chargeable as "costs" under section 124A-5 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/124A-5 (West 2018) ). He requests that we vacate the restitution and invites us in our discretion to remand the cause for the trial court to enter a proper order for costs under section 124A-5 of the Code.

¶ 3 The State concedes that the restitution statute did not authorize the award. It contends, however, that we lack jurisdiction over this appeal, because, under Illinois Supreme Court Rule 472 (eff. May 17, 2019), the trial court retained jurisdiction to correct the error. Alternatively, the State argues that, if we have jurisdiction, we may correct the error without remanding.

¶ 4 We agree with defendant that we have jurisdiction over this appeal. We hold that the trial court erred in awarding restitution instead of costs under section 124A-5 of the Code. We vacate the improper restitution, award an equal amount of costs in its place, and otherwise affirm.

¶ 5 I. BACKGROUND

¶ 6 On February 14, 2018, at sentencing, the State requested that the trial court impose several "fines and costs," including "the restitution fee of $765.90 that would be payable to the transport service that brought [defendant] from Texas to Kane County." The court admitted an invoice dated May 6, 2016, from US Prisoner Transport of Nashville, Tennessee (USPT), to the Kane County Sheriff's Office. It recorded a charge of $765.90 for transporting defendant from a Texas jail. No other restitution was sought. Defendant did not dispute the request.

¶ 7 On March 28, 2018, the trial court sentenced defendant. The court stated in part that it awarded "[a]ll the fines, costs, and fees as requested by the State." The court added, "I'm also going to include the restitution requested." The court left the amount of restitution pending but reduced "the fines, costs, and fees" to judgment. That day, it entered a written judgment that, in part, ordered defendant to pay $765.90 in "[r]estitution" to USPT. Defendant moved to reconsider his sentence, but he did not raise the payment to USPT. The court denied the motion. Defendant timely appealed.

¶ 8 II. ANALYSIS

¶ 9 Defendant contends that the trial court erred in ordering him to pay restitution to USPT. He argues that only a "victim," as defined by the restitution statute, may receive such an award and that USPT was merely the agent of the sheriff's office, which was performing routine law-enforcement duties. He argues that neither was a victim under the restitution statute. See 730 ILCS 5/5-5-6 (West 2018) (statute authorizes court to order restitution in any case in which "the person received any injury to his or her person or damage to his or her real or personal property as a result of the criminal act of the defendant"); People v. Danenberger , 364 Ill. App. 3d 936, 942-43, 302 Ill.Dec. 338, 848 N.E.2d 637 (2006) ; People v. Gaytan , 186 Ill. App. 3d 919, 929, 134 Ill.Dec. 656, 542 N.E.2d 1163 (1989). Defendant concedes that the court could have required him to pay the transport fee as a cost under section 124A-5 of the Code. He does not contest the amount due.

¶ 10 The State concedes that the trial court erred in ordering defendant to pay restitution to USPT. However, it argues, Rule 472 required defendant to raise this error in the trial court before appealing to this court.

¶ 11 To resolve this jurisdictional question, we must construe Rule 472. It reads:

"(a) In criminal cases, the circuit court retains jurisdiction to correct the following sentencing errors at any time following judgment and after notice to the parties, including during the pendency of an appeal, on the court's own motion, or on motion of any party:

(1) Errors in the imposition or calculation of fines, fees, assessments, or costs ;

(2) Errors in the application of per diem credit against fines;

(3) Errors in the calculation of presentence custody credit; and

(4) Clerical errors in the written sentencing order or other part of the record resulting in a discrepancy between the record and the actual judgment of the court.

(b) Where a circuit court's judgment pursuant to this rule is entered more than 30 days after the final judgment, the judgment constitutes a final judgment on a justiciable matter and is subject to appeal in accordance with Supreme Court Rule 303.

(c) No appeal may be taken by a party from a judgment of conviction on the ground of any sentencing error specified above unless such alleged error has first been raised in the circuit court. When a post-judgment motion has been filed by a party pursuant to this rule, any claim of error not raised in that motion shall be deemed forfeited.

(d) If a motion is filed or judgment pursuant to this rule is entered after a prior notice of appeal has been filed, and said appeal remains pending, the pending appeal shall not be stayed. Any appeal from a judgment entered pursuant to this rule shall be consolidated with the pending appeal.

(e) In all criminal cases pending on appeal as of March 1, 2019, or appeals filed thereafter in which a party has attempted to raise sentencing errors covered by this rule for the first time on appeal, the reviewing court shall remand to the circuit court to allow the party to file a motion pursuant to this rule. " (Emphases added.) Ill. S. Ct. R. 472 (eff. May 17, 2019).

¶ 12 The State contends that, per paragraph (a)(1), the trial court has retained jurisdiction over the claim because it is one of error "in the imposition * * * of fines, fees, assessments, or costs." Ill. S. Ct. R. 472(a)(1) (eff. May 17, 2019). Therefore, the State reasons, under paragraph (e), defendant's failure to raise the claim in the trial court requires us to remand summarily. The State relies on People v. Hinton , 2019 IL App (2d) 170348, 439 Ill.Dec. 86, 147 N.E.3d 761. Defendant counters that the error was not committed in the imposition of fines, fees, assessments, or costs, because the court did not impose any of those four charges: it imposed restitution. He argues that Hinton is distinguishable because the claim there involved the imposition of one of the types of charges in paragraph (a)(1). We agree with defendant.

¶ 13 We must first decide whether restitution is a "fine," "fee," "cost," or "assessment." This requires us to construe the pertinent statutes as well as Rule 472. In both endeavors, we seek to ascertain and effectuate the drafters' intent, the best indication of which is the language that they employed. Wauconda Fire Protection District v. Stonewall Orchards, LLP , 214 Ill. 2d 417, 430, 293 Ill.Dec. 246, 828 N.E.2d 216 (2005) (statutes); Longstreet v. Cottrell, Inc. , 374 Ill. App. 3d 549, 553, 312 Ill.Dec. 672, 871 N.E.2d 72 (2007) (supreme court rules). If the language is clear, we must apply it directly. See Stonewall Orchards , 214 Ill. 2d at 430, 293 Ill.Dec. 246, 828 N.E.2d 216 ; Longstreet , 374 Ill. App. 3d at 553, 312 Ill.Dec. 672, 871 N.E.2d 72. To the extent that construction is necessary, we presume that statutes that address the same subject matter are consistent and harmonious. Wade v. City of North Chicago Police Pension Board , 226 Ill. 2d 485, 511-12, 315 Ill.Dec. 772, 877 N.E.2d 1101 (2007). The same presumption applies to statutes vis-à-vis supreme court rules. See Wolfe v. Illini Federal Savings & Loan Ass'n , 158 Ill. App. 3d 321, 324, 110 Ill.Dec. 651, 511 N.E.2d 828 (1987).

¶ 14 Section 124A-5 of the Code authorizes a trial court to require a convicted defendant to pay "the costs of the prosecution," which "shall include reasonable costs incurred by the Sheriff for serving arrest warrants, for picking up the offender from a [foreign] county * * * and for picking up the offender from a location outside the State of Illinois pursuant either to his or her extradition or to his or her waiver of extradition." 725 ILCS 5/124A-5 (West 2018). The charge in favor of USPT and against the Kane County Sheriff's Office plainly qualifies as a "cost of prosecution" under section 124A-5. Therefore, it is within the definition of "costs" in Rule 472(a)(1) as well. By contrast, section 124A-5 does not define restitution as a cost.

¶ 15 Moreover, as defendant notes, other statutes distinguish between restitution and costs, implying that that they are mutually exclusive. The restitution statute authorizes a trial court to "require the defendant to apply the balance of the cash bond, after payment of court costs, and any fine that may be imposed to the payment of...