People v. Love

• Decision Date: 17 October 1997
• Docket Number: No. 82104,82104
• Citation: 227 Ill.Dec. 109,687 N.E.2d 32,177 Ill.2d 550
• Parties: , 227 Ill.Dec. 109 The PEOPLE of the State of Illinois, Appellant, v. Genealyn LOVE, Appellee.
• Court: Illinois Supreme Court

Page 32

687 N.E.2d 32

177 Ill.2d 550, 227 Ill.Dec. 109

The PEOPLE of the State of Illinois, Appellant, v. Genealyn LOVE, Appellee.

No. 82104.

Supreme Court of Illinois.

Oct. 17, 1997.

[177 Ill.2d 551] [227 Ill.Dec. 110] Domenica A. Osterberger, State's Attys. Appellate Prosecutor, Ottawa, Jim Ryan, Atty. Gen., Criminal Appeals Div., Chicago, State's Atty. Kankakee County, Kankakee, Darryl B. Simko, Asst. Atty. Gen., Chicago, for the People.

State Appellate Defender, Ronald Packowitz, Asst. Appellate Defender, Ottawa, for Genealyn Love.

Justice BILANDIC delivered the opinion of the court:

Section 113-3.1 of the Code of Criminal Procedure of 1963 allows circuit courts to order defendants who receive the services of appointed counsel to pay reimbursement for those services. 725 ILCS 5/113-3.1 (West 1994). This appeal concerns the appropriate procedures to be followed in ordering reimbursement under section 113-3.1.

FACTS

Defendant, Genealyn Love, was charged by indictment in the circuit court of Kankakee County with one count of aggravated battery with a firearm and one count of unlawful possession of a weapon by a felon. At his initial court appearance on January 19, 1995, the trial court questioned defendant about his financial resources. Defendant stated that he was unemployed and had no assets other than a 1983 Ford Escort automobile. The trial court therefore appointed the Kankakee County public defender to represent defendant. The trial court also set bail for defendant's release at $25,000. Defendant filed a motion for reduction of bail or release on a recognizance bond. At a hearing on the motion, defendant testified that he was 23 years old, living with his grandfather, and was unable to acquire any money to post a bail bond. The trial court denied defendant's motion and defendant remained in custody.

On February 6, 1995, a bail bond in the amount of $2,500 was posted to secure defendant's release from custody. The bond indicated that the money was posted by Mary Terrell. The bond contained a notice, signed by Terrell, indicating that if defendant failed to comply with the conditions of the bail bond, the money posted would be forfeited, and that even if defendant complied with the bond, the money posted may be used to pay fines, costs or restitution.

On March 7, 1995, Mary Terrell, through her attorney, filed a motion to exonerate bond in which she asked that the bond money she had posted be returned to her. Counsel representing Terrell was present in court on that date to argue the motion. Terrell's counsel stated that Terrell had "changed her mind" about posting the bond money. The trial court denied the motion.

After a bench trial, defendant was found guilty of unlawful possession of a weapon by a felon. The trial court acquitted defendant of aggravated battery with a firearm, but found him guilty of the lesser included offense of reckless conduct.

A presentence investigation of defendant was conducted. That investigation revealed that defendant was currently unemployed and that he had worked for two months at a factory in 1994 through a temporary service. As to defendant's "financial status," the report indicated that defendant's grandparents "provide" for him and that defendant owed money for medical bills. After a brief sentencing hearing, the trial court sentenced defendant to a five-year prison term for the weapons conviction and a one-year term for the reckless conduct conviction. At the same time, the court sua sponte ordered defendant to pay $1,000 for the services of the public defender, to be withheld from the bail bond posted on defendant's behalf. The court did not hold a hearing on the issue of reimbursement.

Defendant appealed his sentences and the reimbursement order to the appellate court. The appellate court affirmed the sentence for unlawful possession of a weapon by a felon and reduced the sentence for reckless conduct from one year to 364 days. The appellate court also determined that the reimbursement order was improperly entered because the trial court did not hold a hearing regarding defendant's ability to pay such reimbursement, as mandated by statute. The appellate court therefore vacated the reimbursement order and remanded to the trial court for a hearing. No. 3-95-0937 (unpublished

[227 Ill.Dec. 111] order under Supreme Court Rule 23). We granted the State's petition for leave to appeal. 155 Ill.2d R. 315. We now affirm the appellate court.

ANALYSIS

In keeping with well-settled constitutional mandates, our Code of Criminal Procedure requires that criminal defendants who cannot afford a lawyer be provided with appointed counsel. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); People v. Cook, 81 Ill.2d 176, 179, 40 Ill.Dec. 825, 407 N.E.2d 56 (1980). Under section 113-3 of the Code, if the trial court determines that a defendant is indigent and desires counsel, an attorney, generally the public defender, must be appointed to represent the defendant. 725 ILCS 5/113-3(b) (West 1994). The Code also provides a mechanism under which a defendant who receives the services of appointed counsel may be required to reimburse the county or state for such services. Section 113-3.1 provides, in pertinent part, as follows:

"(a) Whenever under either Section 113-3 of this Code or Rule 607 of the Illinois Supreme Court the court appoints counsel to represent a defendant, the court may order the defendant to pay to the Clerk of the Circuit Court a reasonable sum to reimburse either the county or the State for such representation. In a hearing to determine the amount of the payment, the court shall consider the affidavit prepared by the defendant under Section 113-3 of this Code and any other information pertaining to the defendant's financial circumstances which may be submitted by the parties. Such hearing shall be conducted on the court's own motion or on motion of the State's Attorney at any time after the appointment of counsel but no later than 90 days after the entry of a final order disposing of the case at the trial level.

* * * * * *

(c) The method of any payment required under this Section shall be as specified by the Court. The court may order that payments be made on a monthly basis during the term of representation; however, the sum deposited as money bond shall not be used to satisfy this court order. Any sum deposited as money bond with the Clerk of the Circuit Court under Section 110-7 of this Code may be used in the court's discretion in whole or in part to comply with any payment order entered in accordance with paragraph (a) of this Section. The court may give special consideration to the interests of relatives or other third parties who may have posted a money bond on the behalf of the defendant to secure his release. At any time prior to full payment of any payment order the court on its own motion or the motion of any party may reduce, increase, or suspend the ordered payment, or modify the method of payment, as the interest of fairness may require. No increase, suspension, or reduction may be ordered without a hearing and notice to all parties." 725 ILCS 5/113-3.1(a), (c) (West 1994).

This appeal focuses on the procedure a trial court must follow in ordering a defendant to pay reimbursement for the services of appointed counsel. Defendant contends that section 113-3.1 requires that, prior to ordering reimbursement, the trial court must conduct a hearing into whether the defendant has the ability to pay such reimbursement. The State argues that section 113-3.1 does not require such a hearing, but that it is solely within the trial court's discretion whether to conduct a hearing into the defendant's ability to pay prior to ordering reimbursement. Alternatively, the State asserts that the posting of a cash bail bond is conclusive evidence of the defendant's ability to pay reimbursement, which obviates the need for a hearing under section 113-3.1. Finally, the State argues that defendant waived any errors in the reimbursement order by failing to object to the order in the trial court.

I

We first address the State's contention that section 113-3.1 does not require the trial court to hold a hearing into the defendant's ability to pay as a precondition to ordering reimbursement of appointed counsel's fees. According to the State, section 113-3.1 empowers trial judges to order reimbursement The language of section 113-3.1(a) clearly requires the trial court to conduct a hearing into the defendant's financial resources as a precondition to ordering reimbursement. Section 113-3.1(a) begins by granting the trial court the authority to order a defendant to pay reimbursement. Subsection (a) then delineates the procedure the court must follow in order to do so:

[227 Ill.Dec. 112] "at their pleasure," without holding a hearing into the defendant's financial resources. The State asserts that section 113-3.1 merely allows the trial court, in its discretion, to conduct a hearing when the court deems it necessary to arrive at an appropriate reimbursement amount. We disagree. The State's argument ignores both the language of section 113-3.1 and prior precedent of this court.

"In a hearing to determine the amount of the payment, the court shall consider the affidavit prepared by the defendant under Section 113-3 of this Code and any other information pertaining to the defendant's financial circumstances which may be submitted by the parties. Such hearing shall be conducted on the court's own motion or on motion of the State's Attorney at any time after the appointment of counsel but no later than 90 days after the entry of a final order disposing of the case at the trial level." 725 ILCS 5/113-3.1(a) (West 1994).

Thus, section 113-3.1(a) plainly requires that the trial court conduct, within the specified time period, a hearing into the defendant's financial resources to determine his ability to pay reimbursement. The State...