People v. Mullen

• Decision Date: 05 February 2018
• Docket Number: No. 1–15–2306,1–15–2306
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. David MULLEN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 152306

100 N.E.3d 532

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

v.David MULLEN, Defendant–Appellant.

No. 1–15–2306

Appellate Court of Illinois, First District, FIRST DIVISION.

February 5, 2018

Michael J. Pelletier, Patricia Mysza, and Robert Hirschhorn, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Mari R. Hatzenbuehler, Assistant State’s Attorneys, of counsel), for the People.

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

¶ 1 Defendant David Mullen was convicted of robbery. Mr. Mullen does not challenge his conviction. The issues in his appeal concern only the fines and fees imposed in his case. Mr. Mullen argues that the trial court erred in assessing a $500 public defender attorney fee against him because he was not provided with the statutorily mandated hearing. Mr. Mullen also contends that the trial court erred by not giving him a presentence incarceration credit and by failing to properly calculate which monetary assessments were eligible for offset by such a credit. For the following reasons, we remand for a statutorily compliant hearing on whether Mr. Mullen should be required to reimburse the State for any part of the cost of his representation by the public defender's office. We also direct that Mr. Mullen's fines and fees order be modified to accurately reflect the presentence incarceration credit to which he is entitled.

¶ 2 I. BACKGROUND

¶ 3 Mr. Mullen was charged with armed robbery and unlawful restraint. He was appointed a public defender. Prior to trial, the State filed a motion for reimbursement of funds for Mr. Mullen's use of the services of the public defender's office.

¶ 4 At Mr. Mullen's bench trial, the State presented witnesses who testified that, on September 13, 2014, Mr. Mullen followed Nyiesha Maclin into the vestibule of her apartment building. Once inside, Mr. Mullen grabbed Ms. Maclin by the neck and threw her against a wall. Mr. Mullen took Ms. Maclin's purse, keys, cell phone, and a ring. Ms. Maclin's cell phone had a remote tracking application, which Chicago police officers used to track her phone to a liquor store. At the store, the officers had Ms. Maclin remotely trigger her cell phone's alarm, allowing them to locate and arrest Mr. Mullen. The trial court found Mr. Mullen guilty of robbery and unlawful restraint. The court merged Mr. Mullen's unlawful restraint conviction into his robbery conviction, and the case proceeded to sentencing.

¶ 5 Because of his criminal background, the trial court sentenced Mr. Mullen as a Class X offender to seven years' imprisonment. At the end of the sentencing hearing, Mr. Mullen's public defender had the following exchange with the court regarding the State's motion for reimbursement of the cost of the public defender's representation:

"THE COURT: How many times have you appeared on this?

DEFENSE COUNSEL: Seven, your Honor.

THE COURT: You went to trial on this?

DEFENSE COUNSEL: Yes, your Honor.

THE COURT: Attorney fees are $500."

¶ 6 In addition to the public defender fee, the other fines and fees assessed against Mr. Mullen appear on a form titled "ORDER ASSESSING FINES, FEES AND COSTS." It is a preprinted order provided by the clerk of the circuit court of Cook County. This order, which will be referred to as the fines and fees order, lists certain assessments as "FINES OFFSET by the $5 per day pre-sentence incarceration credit pursuant to 725 ILCS 5/110–14(a)." In Mr. Mullen's case, the fines imposed in this category included the following: a $10 mental health court fine ( 55 ILCS 5/5–1101(d–5) (West 2014) ), a $5 youth diversion/peer court fine (id. § 5–1101(e) ), a $5 drug court fine (id. § 5–1101(f) ), and a $30 children's advocacy center fine (id. § 5–1101(f–5) ).

¶ 7 The fines and fees order also lists "FINES NOT OFFSET by the $5 per-day pre-sentence incarceration credit" (emphasis in original), which Mr. Mullen had none of, and "FEES AND COSTS NOT OFFSET by the $5 per-day pre-sentence incarceration credit" (emphasis in original), including the following: a $190 felony complaint filing fee ( 705 ILCS 105/27.2a(w)(1)(A) (West 2014) ), a $60 felony complaint conviction fee ( 55 ILCS 5/4–2002.1(a) (West 2014) ), a $20 probable cause hearing fee (id. ), a $15 automation fee ( 705 ILCS 105/27.3a(1.5) (West 2014) ), a $15 state police operations fee (id. ), a $2 public defender records automation fee ( 55 ILCS 5/3–4012 (West 2014) ), a $2 state's attorney records automation fee (id. § 4–2002.1(c) ), a $15 document storage fee ( 705 ILCS 105/27.3c (West 2014) ), a $5 electronic citation fee (id. § 27.3e), a $25 court services fee ( 55 ILCS 5/5–1103 (West 2014) ), a $50 court system fee (id. § 5–1101(c) ), a $10 arrestee's medical costs fund fee ( 730 ILCS 125/17 (West 2014) ), and a $10 probation and court services operations fee ( 705 ILCS 105/27.3a(1.1) (West 2014) ).

¶ 8 Mr. Mullen's fines and fees order reflects that he spent 263 days in pretrial custody and simply states "(Allowable credit toward fine will be calculated)," without specifying what monetary credit Mr. Mullen should receive for his presentence incarceration.

¶ 9 II. JURISDICTION

¶ 10 Mr. Mullen was sentenced on June 2, 2015, and timely filed his notice of appeal on June 5, 2015. This court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rules 603 and 606, governing appeals from final judgments of conviction in criminal cases (Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013) ).

¶ 11 III ANALYSIS

¶ 12 On appeal, Mr. Mullen argues that the $500 public defender attorney fee assessed against him should be vacated because the trial court imposed it without first conducting a proper hearing under section 113–3.1 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/113–3.1(a) (West 2014) ). The State agrees but argues that we should remand for a statutorily compliant hearing rather than vacate the fee outright. Mr. Mullen also asks that we amend his fines and fees order, both because the trial court failed to give him $5 per day of credit for the 263 days he spent in presentence incarceration, and because the court improperly categorized certain assessments as fees rather than fines, making them not subject to that credit. The State agrees that some, but not all, of the assessments were improperly categorized as fees, but insists that Mr. Mullen has forfeited any objection to that mischaracterization. We address each argument in turn.

¶ 13 A. Public Defender Fee

¶ 14 Mr. Mullen failed to object to the trial court's imposition of a $500 public defender attorney fee at his sentencing hearing. The State concedes that Mr. Mullen's silence was not a forfeiture of this issue, and we agree. Our supreme court has expressly held that forfeiture is "inappropriate" and "should not be applied" when the trial court ignores the statutory procedures for reimbursement of this public defender fee. People v. Love , 177 Ill. 2d 550, 564, 227 Ill.Dec. 109, 687 N.E.2d 32 (1997) ; see also People v. Carreon , 2011 IL App (2d) 100391, ¶ 11, 355 Ill.Dec. 783, 960 N.E.2d 665 ("where a trial court imposes [the public defender fee] without following the appropriate procedural requirements, application of the forfeiture rule is inappropriate").

¶ 15 The State concedes that the trial court's inquiry did not sufficiently comport with the statutory hearing requirements outlined in section 113–3.1(a) of the Code. As the State recognizes, to comply with section 113–3.1(a), the hearing must be held within 90 days of the trial court's entry of the final order and must "focus on the foreseeable ability of the defendant to pay reimbursement as well as the costs of the representation provided." Love , 177 Ill. 2d at 563, 227 Ill.Dec. 109, 687 N.E.2d 32. Only where the trial court finds that a defendant has an ability to pay may it order reimbursement for appointed counsel. Id.

¶ 16 Although the parties agree that Mr. Mullen did not receive a sufficient hearing, they disagree about the appropriate remedy. According to Mr. Mullen, the trial court's brief exchange with defense counsel about the number of appearances he made was not a "hearing," and because the 90–day statutory timeframe for holding such a hearing has passed, a remand would not be appropriate. The State responds that, although it was a clearly deficient one, the trial court did hold a "hearing" within the mandated timeframe, and urges us to remand the case to the trial court for a compliant hearing. Our supreme court has held that if the trial court conducts "some sort of hearing" within the 90–day statutory timeframe, although that hearing is deficient under section 113–3.1(a), a remand for a more complete hearing is the proper remedy. People v. Somers , 2013 IL 114054, ¶¶ 15, 18, 368 Ill.Dec. 525, 984 N.E.2d 471 (holding that the trial court's three questions about the defendant's ability to pay attorney fees did not fully comply with the statute but qualified as "some sort of hearing" during the 90–day statutory period, and therefore there was no impediment to remanding the cause for a proper hearing).

¶ 17 Whether the trial court's questioning in this case qualifies as "some sort of hearing" was fully resolved by our supreme court's recent decision in People v. Hardman , 2017 IL 121453, ––– Ill.Dec. ––––, ––– N.E.3d ––––, issued after the briefing in this case was completed. In Hardman , as in this case, the hearing consisted solely of the trial court asking the public defender how many times she had appeared. Id. ¶ 66. Our supreme court found that this line of questioning, with the parties present, within the 90–day limit and after the State had expressly sought reimbursement for the public defender's services, was a sufficient basis on which to find that "some sort of hearing" had occurred under Somers . Thus,...