People v. Vara

• Decision Date: 21 December 2016
• Docket Number: No. 2-14-0848,2-14-0848
• Citation: 2016 IL App (2d) 140848,76 N.E.3d 10
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ricardo VARA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (2d) 140848

76 N.E.3d 10

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

v.Ricardo VARA, Defendant-Appellant.

No. 2-14-0848

Appellate Court of Illinois, Second District.

Opinion filed December 21, 2016

Michael J. Pelletier, Thomas A. Lilien, and Jaime L. Montgomery, of State Appellate Defender's Office, of Elgin, for appellant.

Carl H. Larson, State's Attorney, of Freeport (Lawrence M. Bauer and Marshall M. Stevens, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 We once again are presented with a case in which the circuit clerk imposed certain mandatory statutory fines, despite lacking the power to do so, and the trial court did not, despite having both the power and the obligation to act. The parties agree that the clerk lacked the authority to impose the fines and that the purported fines must be vacated. They disagree on what other relief this court may provide at this time. The State requests that we impose the fines ourselves or remand with directions for the trial court to do so. Defendant, Ricardo Vara, disagrees. We agree with defendant that, in light of People v. Castleberry , 2015 IL 116916, 398 Ill.Dec. 22, 43 N.E.3d 932, the purported fines must be vacated and we may not provide any further relief, either by imposing the fines or by ordering the trial court to do so. If the State wishes to hold the trial court to its statutory obligation, it must pursue relief in a new proceeding.

¶ 2 After a bench trial, defendant was convicted of child pornography (720 ILCS 5/1120.1(a)(6) (West 2012)) and sentenced to three years in prison. At the August 4, 2014, sentencing, the trial court imposed the following fines: (1) a $1000 fine; (2) a mandatory $500 sex-offender fine (see 730 ILCS 5/5-9-1.15(a) (West 2014)); (3) a mandatory $30 "[a]dditional fine to fund expungement of juvenile records" (730 ILCS 5/5-9-1.17(a) (West 2014)); and (4) a mandatory $500 "[a]dditional child pornography fine[ ]" (730 ILCS 5/5-9-1.14 (West 2014) ). The propriety of these fines is undisputed. Defendant timely filed a notice of appeal on August 22, 2014.

¶ 3 The assessments that are at issue are listed in a document entitled "Payment Status Information" (Payment Schedule), dated April 12, 2016, approximately 18 months after the written final judgment. The Payment Schedule is signed by a deputy circuit clerk, on behalf of the circuit clerk. It lists the following pertinent assessments (all shown as unpaid): (1) "Court" ($50); (2) "Youth Diversion" ($5); (3) "Violent Crime" ($100); (4) "Lump Sum Surcharge" ($250); (5) "Sexual Assault" ($200); (6) "Sex Offender Regis" ($500); (7) "Medical Costs" ($10); (8) "State Police Ops" ($15); (9) "Child Pornography" ($495); and (10) "Clerk Op Deduction" ($5).

¶ 4 In this direct appeal, defendant does not challenge assessment (6), the $500 sex-offender-registration charge, or assessments (9) and (10), the $500 child-pornography fine, $5 of which must be deposited into a statutory fund (see id. ). Defendant notes that the trial court duly imposed these assessments. He contends, however, that the remaining assessments are void because they are fines and thus the clerk lacked the authority to levy them.

¶ 5 Defendant concedes that all of these assessments were not only authorized by statute but mandatory. Specifically, assessment (1) ("Court") was required by a county ordinance or resolution passed under section 5-1101(c)(1) of the Counties Code (55 ILCS 5/5-1101(c)(1) (West 2014)). Assessment (2) ( "Youth Diversion") was required by county action under section 5-1101(e)(2) of the Counties Code (55 ILCS 5/5-1101(e)(2) (West 2014)).¹ Assessment (3) ("Violent Crime") was required by section 10(b)(1) of the Violent Crime Victims Assistance Act (725 ILCS 240/10(b)(1) (West 2014)). Assessment 4 ("Lump Sum Surcharge") was required by section 5-9- 1(c) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-9-1(c) (West 2014)). Assessment 5 ("Sexual Assault") was required by section 5-9-1.7(b)(1) of the Unified Code (730 ILCS 5/5-9-1.7(b)(1) (West 2014)). Assessment (7) ( "Medical Costs") was required by section 17 of the County Jail Act (730 ILCS 125/17 (West 2014) ). Assessment (8) ("State Police Ops") was required by section 27.3a of the Clerks of Courts Act (705 ILCS 105/27.3a (West 2014) ). Defendant's sole contention is that the assessments are void because the clerk levied them without any authority. He requests that we vacate these illegal fines.

¶ 6 The State concedes that the assessments are void, but it disagrees with defendant on the proper remedy. The State requests that we either impose the fines ourselves or remand with directions for the trial court to do so. Defendant acknowledges that what the State requests was formerly the accepted remedy in a case such as this one. But he argues that this relief was premised on the rule, abolished by Castleberry , that a sentence that does not conform to statutory requirements is void and may be challenged at any time. Defendant reasons that, after Castleberry , the trial court's nonimposition of the fines was mere trial-court error (albeit plain error) and that his appeal does not empower us to grant the State relief against the judgment. For the reasons that follow, we agree with defendant.

¶ 7 First, some general principles. Because this appeal presents pure questions of law about the propriety of the fines involved, our review is de novo . See People v. Marshall , 242 Ill.2d 285, 292, 351 Ill.Dec. 172, 950 N.E.2d 668 (2011). Also, defendant has not forfeited his claim of error by failing to raise it in the trial court, as the erroneous imposition of a fine or a fee is cognizable as plain error. See People v. Lewis , 234 Ill.2d 32, 47–49, 332 Ill.Dec. 334, 912 N.E.2d 1220 (2009).

¶ 8 We agree with the parties that the assessments at issue were fines, which the circuit clerk could not impose. A fine is a pecuniary punishment for an offense. People v. Wisotzke , 204 Ill.App.3d 44, 50, 149 Ill.Dec. 614, 561 N.E.2d 1310 (1990). Fines must be imposed by the trial court as part of the defendant's sentence. People v. Chester , 2014 IL App (4th) 120564, ¶ 33, 378 Ill.Dec. 847, 5 N.E.3d 227. The circuit clerk may not impose fines. People v. Johnson , 2015 IL App (3d) 140364, ¶ 10, 399 Ill.Dec. 618, 46 N.E.3d 937 ; Chester , 2014 IL App (4th) 120564, ¶ 33, 378 Ill.Dec. 847, 5 N.E.3d 227. This is because the imposition of a fine is a judicial function beyond the authority of the clerk. Wisotzke , 204 Ill.App.3d at 50, 149 Ill.Dec. 614, 561 N.E.2d 1310.

¶ 9 Although the clerk may impose fees, which are not punitive (see People v. Wade , 2016 IL App (3d) 150417, ¶ 15, 407 Ill.Dec. 904, 64 N.E.3d 703), all of the assessments at issue were not fees but fines. See People v. Smith , 2013 IL App (2d) 120691, ¶ 18, 376 Ill.Dec. 936, 1 N.E.3d 648 (assessment 1 ("Court") and assessment 2 ("Youth Diversion")); People v. Reed , 160 Ill.App.3d 606, 612, 112 Ill.Dec. 584, 513 N.E.2d 1193 (1987) (assessment 3 ("Violent Crime")); People v. Williams , 2013 IL App (4th) 120313, ¶ 18, 372 Ill.Dec. 424, 991 N.E.2d 914 (assessment 4 ("Lump Sum Surcharge")); 730 ILCS 5/5-9-1.7(b)(1) (West 2014) (assessment 5 ("Sexual Assault")); People v. Larue , 2014 IL App (4th) 120595, ¶ 57, 381 Ill.Dec. 550, 10 N.E.3d 959 (assessment 7 ("Medical Costs")); People v. Millsap , 2012 IL App (4th) 110668, ¶ 31, 366 Ill.Dec. 229, 979 N.E.2d 1030 (assessment 8 ("State Police Ops")).

¶ 10 The parties agree that the foregoing fines cannot stand and must be vacated.

They disagree on what more, if anything, this court can or ought to do. The State requests that we either impose the fines ourselves or remand with directions for the trial court to do so. The State correctly notes that, before Castleberry , this was the standard and accepted remedy. See, e.g. , People v. Higgins , 2014 IL App (2d) 120888, ¶¶ 24, 33, 382 Ill.Dec. 756, 13 N.E.3d 169 (remand with directions to impose fines); Chester , 2014 IL App (4th) 120564, ¶ 37, 378 Ill.Dec. 847, 5 N.E.3d 227 (remand with directions to impose fines); People v. Evangelista , 393 Ill.App.3d 395, 401, 332 Ill.Dec. 356, 912 N.E.2d 1242 (2009) (direct imposition of fines). The State further correctly notes that, even after Castleberry , courts have held that, on a defendant's direct appeal, the court of review has the power to impose the fines or to order the trial court to do so. See People v. Warren , 2016 IL App (4th) 120721–B, ¶ 89, 404 Ill.Dec. 21, 55 N.E.3d 117 ; People v. Ford , 2016 IL App (3d) 130650, ¶ 35, 401 Ill.Dec. 252, 49 N.E.3d 954.

¶ 11 Defendant contends that, whatever the practice before Castleberry , that opinion, while not disturbing our authority to declare the clerk's unauthorized acts void, now bars us from either imposing the fines ourselves or ordering the trial court to do so. He reasons that Castleberry abrogated the basis for our authority to increase a defendant's punishment beyond what the trial court imposed. By abolishing the rule that an illegally low sentence is void, it prevented an appellate court from invoking its power to correct a void judgment at any time that a case is properly before it (see People v. Flowers , 208 Ill.2d 291, 308, 280 Ill.Dec. 653, 802 N.E.2d 1174 (2003) ). Thus, defendant concludes, the mere fact that the appellate court has jurisdiction over a defendant's appeal does not enable it to grant the State relief by correcting, or ordering the correction of, an illegally low sentence. Defendant urges us to reject the post-Castleberry authority to the contrary in favor of Wade , which held that the State can obtain relief only by filing a new action.

¶ 12 To explain why we agree with defendant, we discuss Castleberry and the conflicting authority that it has spawned. Before Castleberry , the law was that a sentence that does not conform to a statutory requirement is not merely...