People v. Higgins

• Decision Date: 19 June 2014
• Docket Number: No. 2–12–0888.,2–12–0888.
• Citation: 13 N.E.3d 169
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Daniel HIGGINS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

13 N.E.3d 169

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Daniel HIGGINS, Defendant–Appellant.

No. 2–12–0888.

Appellate Court of Illinois, Second District.

June 19, 2014.

Thomas A. Lilien and Paul J. Glaser, both of State Appellate Defender's Office, of Elgin, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Colleen P. Price, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, Daniel Higgins, was convicted of aggravated reckless driving (625 ILCS 5/11–503(a) (West 2010)) and two counts of aggravated assault (720 ILCS 5/12–2(a)(1), (a)(9) (West 2010)). He was sentenced to 28 months of probation and ordered to pay restitution to one of the victims in addition to various fines, fees, and costs. At issue in this appeal is the propriety of (1) the restitution award, which was ordered to be paid from defendant's bond before the fines, fees, and costs and entered without the court's determining defendant's ability to pay or setting a payment schedule; (2) a $250 deoxyribonucleic acid (DNA) analysis fee, under a statute applicable when defendant was sentenced; (3) various fines the clerk of the court imposed, including a $125 “Fine Agency” assessment; and (4) the court's not imposing a serious-traffic-violation charge (see generally 625 ILCS 5/16–104d (West 2010) ). For the reasons that follow, we determine that (1) defendant has forfeited his challenge to the restitution order, but the restitution order must nevertheless be amended on remand to reflect whether defendant's bond will be applied to restitution after it is used to satisfy the fines and costs assessed; (2) the $250 DNA analysis fee is proper, as imposition of that fee does not run afoul of the prohibition against ex post facto laws; (3) the fines the clerk of the court imposed must be vacated, and this cause must be remanded for the court to calculate the proper amounts of the fines; (4) the cause must be remanded for the court to clarify what a $125 “Fine Agency” assessment is and whether such a charge is appropriate here; and (5) a $20 serious-traffic-violation charge must be imposed.

¶ 2 The following facts are relevant to resolving the issues raised here. On July 19, 2010, defendant was driving his tow truck toward Dustin and Tanika Martin. The tow truck struck Dustin, Dustin was propelled a distance away, and, when Dustin landed on the ground, he discovered that one of his front teeth was chipped. Defendant was charged with various offenses based on these and other acts, but he was convicted only of aggravated reckless driving and two counts of aggravated assault.

¶ 3 At a subsequent sentencing hearing, Margaret Martin, Dustin's mother, testified that she spent $350 on a “flipper” tooth for Dustin and that, based on phone calls she made, she would have to spend between $1,900 and $2,000 for a permanent tooth implant. The court merged the two aggravated assault convictions and sentenced defendant to 28 months of probation. In sentencing defendant, the court assessed a $250 DNA analysis fee, imposed a $30 Children's Advocacy Center fine, levied a $250 fine, ordered defendant to pay $1,900 in restitution to Margaret, and ordered that the amount of restitution be taken out of defendant's bond before any fines, fees, or costs were paid with the bond money.¹ In addition to these fines and fees, the clerk of the court imposed, among others, the following charges: (1) $60 for “ CR. Surcharge Stat[e]”; (2) $24 for “Driver[']s Education”; (3) $24 for a “ Victim Fund”; and (4) $125 for “Fine Agency.” Neither the court nor the clerk imposed a serious-traffic-violation charge, and defendant never challenged in the trial court the restitution order or any of the fines and fees imposed. This timely appeal followed.

¶ 4 On appeal, defendant raises two issues. He argues that, because the court did not consider his ability to pay restitution and did not set a payment schedule, the order for restitution must be vacated and the cause remanded for a new hearing. Defendant also argues that his $250 DNA analysis fee must be reduced to $200, because, when he committed the crimes, the applicable statute provided for only a $200 DNA analysis fee. The State claims that, because defendant never challenged the restitution order in the trial court, he has forfeited any claim that the restitution order is improper. However, forfeiture aside, the State claims that there was ample evidence presented establishing defendant's ability to pay and that, in any event, the restitution order must be modified so that restitution is paid out of defendant's bond only after all fines, fees, and costs are satisfied. The State also contends that a $250 DNA analysis fee is proper, as the prohibition against ex post facto laws does not apply to fees. The State then argues that the various fines the clerk of the court imposed must be vacated and reimposed; that this court should remand the cause so that the trial court can clarify what it meant by a $125 “Fine Agency” assessment; and that a $20 serious-traffic-violation charge must be assessed. We address each argument in turn.

¶ 5 The first issue we address is whether the restitution order must be vacated and the cause remanded so that the trial court can assess defendant's ability to pay and set a payment schedule. Before considering that issue, we address the State's claim that the issue is forfeited, as defendant never challenged the restitution order in the trial court.

¶ 6 Ordinarily, a sentencing issue, like restitution (see People v. White, 146 Ill.App.3d 998, 1003, 100 Ill.Dec. 710, 497 N.E.2d 888 (1986) (noting that restitution is an increment of the sentence)), not raised during the sentencing hearing or in a postsentencing motion results in forfeiture of that issue on appeal. See People v. Watkins, 325 Ill.App.3d 13, 17, 258 Ill.Dec. 732, 757 N.E.2d 117 (2001), abrogated on other grounds by People v. Bailey, 2014 IL 115459, 378 Ill.Dec. 591, 4 N.E.3d 474. However, there are exceptions to this rule. One of those exceptions provides that a void sentencing order may be attacked at any time. People v. Mancilla, 331 Ill.App.3d 35, 37, 264 Ill.Dec. 566, 770 N.E.2d 1262 (2002). Defendant claims that the restitution order at issue here is void, because, before the court imposed the restitution order, it failed to assess defendant's ability to pay, and it did not set a payment schedule. Whether a sentence, or a portion of it, is void presents a question of law that we review de novo. People v. Donelson, 2011 IL App (1st) 092594, ¶ 7, 356 Ill.Dec. 106, 960 N.E.2d 1229.

¶ 7 “Any portion of a sentence that is not statutorily authorized is void.” People v. Day, 2011 IL App (2d) 091358, ¶ 48, 354 Ill.Dec. 557, 958 N.E.2d 300. Thus, when a trial court exceeds its sentencing authority by entering an order that a statute does not allow, the order will be deemed void, and the defendant may challenge it on appeal even if the defendant did not properly preserve it. Id. ¶¶ 48–49. However, if the order is improper because of a mistake in the law or the facts, it is voidable, not void. Id. ¶ 48.

A voidable order, unlike a void order, may be forfeited. Id.

¶ 8 Because the voidness of a sentencing order, like the restitution here, is dependent on whether the court exceeded its statutory authority in imposing it, we begin by examining the relevant statute. In doing so, we are guided by the well-settled rules of statutory construction. “The primary objective in construing a statute * * * is to ascertain and give effect to the legislative authority's intent.” People v. Martino, 2012 IL App (2d) 101244, ¶ 25, 361 Ill.Dec. 290, 970 N.E.2d 1236. “The surest and most reliable indicator of this intent is the language of the statute * * * itself.” Id. “We must construe the statute * * * as a whole, giving the language its plain and ordinary meaning.” Id. “In doing so, when the language is clear and unambiguous, we must apply the statute * * * without resorting to any extrinsic aids of construction.” Id.

¶ 9 Section 5–5–6(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5–5–6(b) (West 2010)) is the statute that provides for restitution. It states that “the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and any other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant.” Id. Section 5–5–6(f) of the Code (730 ILCS 5/5–5–6(f) (West 2010)) addresses a defendant's ability to pay restitution. Specifically, it provides that, “[t]aking into consideration the ability of the defendant to pay, including any real or personal property or any other assets of the defendant, the court shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years or the period of time specified [for offenses not committed and injuries not sustained here], not including periods of incarceration, within which payment of restitution is to be paid in full.” Id.

¶ 10 A restitution order is void when, for example, the court requires restitution for charges that were ultimately dismissed (see, e.g., People v. Felton, 385 Ill.App.3d 802, 806, 324 Ill.Dec. 834, 896 N.E.2d 910 (2008) ) or orders restitution to be paid to those who are not “victims” (see, e.g., People v. Thornton, 286 Ill.App.3d 624, 632, 222 Ill.Dec. 60, 676 N.E.2d 1024 (1997) (restitution order to county agency in an animal cruelty case was void, because neither dog nor county agency that cared for dog the defendant badly neglected was a “victim”)). The same cannot be said for those restitution orders that were entered without the court first considering a defendant's ability to...