name is julie thompson and i work for the office excuse me of the state appellate defender i am here today representing relief on will leave on entered into an open guilty plea in jefferson county illinois he pled guilty to the offense of residential burglary he admitted that he went into the home of florida ward and removed a bag that contained gold coins it was an open guilty play so there was a sentencing hearing and mr von was sentenced to twenty years in the department of corrections and was ordered to pay one hundred thousand dollars in restitution we are here today because of that restitution order the trial court ordered restitution in the amount of one hundred thousand dollars and required mr vaughan to appear within thirty days of his release from the department of corrections to set a time payment schedule for payments on this restitution mr hahn is not challenging the him out of the restitution there is no basis in the record to do so in fact mr vine at sentencing asked to th thousand three hundred dollars that was recovered when he was arrested be paid over toward restitution what mr vine is challenging is that a little of the actual restitution orders details the restitution statute in illinois requires that a court determine a defendant's ability to pay when deciding whether a payment whether restitution should be paid as a lump sum or in installments and also requires a trial court d to set a time limit up to five years not including periods of incarceration during which that restitution has to be paid this trial court did neither of those things simply ordered to show up within thirty days of his release from the department of corrections to find out what his restitution requirements were going to be this violates the statute this court in people versus hayes held that a case had to be remanded for a restitute restitution determination when the trial court failed to set out the method and time of the payment of restitution that's the sum total of our argument the state will take the position i believe as they did in their brief that we have not demonstrated a plain error and therefore mr von should not be entitled to any relief in this case all of which remain ended for restitution to terminations to essentially tidy up the details of a restitution order those were done without preservation of that error that was that  s let me ask you a question please in all of the m people versus hayes was there an objection main at the time sentencing no your honor not that shows in the in the court's decision and does the five year period act as kind of a statute of limitations than on the ability to pay it if there's actually a provision in the statute that allows the trial court forget because shown to extend the period of repayment beyond that five year period and this frankly would probably be a case where such would be appropriate to do right so if somebody is going to prison for twenty years they're obviously not going to be working and having the ability to pay for example if the gentleman would write a book while he was in prison and made him you know thirty million dollars he'd be able to pay so once he's released the court's going to say come on before us and let's see what your ability to pay is what's wrong with the well your honor you do raise a valid point and one of the things that the trial court indicated during the sentencing hearing was that mr han's financial situation was such that there was no real expectation of his ability to pay this amount of restitution the trial court took the position that if he ever hit the lottery he would be required to to make some payment toward restitution primarily the issue with it is it simply doesn't comply with what the legislature required in the statute they were very specific they wanted a time payment arrangement made it was either be paid in a lump sum or over a period of time and they wanted a deadline by which it was required to be paid but the good score shown extension do you think the judge has to say  specifically or can it be well you know i know you can't pay right now but the actual statute your honor  if the court deems necessary and in the best interest of the victim the court may extend beyond five years the period of time within which the restitution is to be paid extend beyond the period of five years but they never set  only the statute speaks to that five to the extension of that five years the only thing the trial court said to mr hyde and the only order entered for mr avant says he is to personally appear in court within thirty days of his release from to set up a time and i'm out and all the statute for someone who's going to be in b o c for at least another five to seven years with nothing coming in other than what somebody may put in his commissary books or what little he may provide for modification of terms if said the situation changes the statute the legislature require that it be done at the time of sentencing and i think for policy purposes it was more for the victim's peace of mind than anything else mr ward who is owed this one hundred thousand dollars at this point in time is an eldred elderly retired gentleman who has absolutely no idea for when he will ever see even a payment toward not not only his entire amount but not even a payment based on this trial court's order so while it will be difficult for the trial court to fashion and order because of the incarceration that is what the legislature requires that's what this actually requires and that's what the case law that follows the statute requires we're asking that there's and so the court could attempt to make some investigation into actually the location of some of those coins some of which were actually just gold bullion to be sold but some of which were collector coins that had some fairly significant value that will increase as the years go on and mr ward had actually wanted those for an inheritance for his family so the way the record currently reads there was no real effort made to see if any of those coins could be located or recovered ok thank you mr johnson justice moore did you have a follow up question no that's all that i  sole issue on appeal in this is whether the restitution order is valid as opposing counsel mentioned in the hayes case looking at that case it's state this court stated that the court the trial court is not required to determine the defendant's ability to pay when ordering restitution but only when determining the manner of payments and consequently in that case the definitive here is arguing well the trial court messed up it needs to go back down and that's more important then and overshadows the fact that the defendant failed to raise this issue on review which is essentially kind of the same procedural or procedural problem or issue is that well we messed up on appeal but that's fine even because it needs to go back down even though it's proper messed up and that's confusing i'm trying to make it more clear and i apologize but in this case no mention of waiver by the defendant has been acknowledged what about people gerson's hayes was there where you were in that case too was that an issue can you distinguish  yes in the record actually in the trial court did take into consideration the defendant's ability to pay and back as the defendant notes in his opening brief confused on who you're talking this case did take into consideration the defendant's ability to pay and even said at the hearing with respect to the restitution order i'm going to set restitution at one hundred thousand dollars and as i said that's the only evidence we have about i don't anticipate that it will be pay but if something major happens if you have some property land or whatever it's a judgment and then later also said if i put in the restitution of six opposing counsel's argument earlier such as if you wrote a book or something like that then that is the trial court's consideration of the defendant's ability to pay well how is that different from what happened in people versus and it was to be apportioned between the co defendants and this court said that the trucker therefore did not or an ordering him to pay the restitution but in the absence of an order apportioning restitution the defendant the absence of a restitution order it has to be inferred that it has to be paid in a lump sum obviously that's probably not going to happen unless as the trial court did know if the hearing the defendant wins the lottery someday or comes into owns the property or something like that which could be paid in a lump sum and that case but i guess having some confusion about there was no remember reset sing and people versus district correct what's what is your you can extend the time period for which the defendant has to pay the order not including periods of incarceration so even assuming that we don't include use in years once he gets out the court can even extend it past the five years so there's plenty of opportunity in time for the defendant to set and to be able to pay this back and the court even defense counsel in his argument at the trial court level even acknowledged i don't believe the defendant even if you set the lower amount at sixty thousand dollars if it is probably not going to pay it back so everyone understands that the defendant likely never going to pay this restitution back but only if as you're just escapes acknowledged earlier if you were to write a book in the proceeds from that could go to the victim in this case extension for good  well it's not including periods of incarceration your honor and the statute says that and it does so for good can be extended and i think the good cause in this case would be the fact that the amount is so large that it's not reasonable to expect a defendant who we know from the record you know does odd jobs for work and doesn't have a whole lot and have to resort stealing to help sustain his lifestyle that he's probably not going to be able to pay that amount back and so i believe in the state's decision  that would be good cause shown to extend the five year deadline time limit or method of payment as required by the statute the amount of payment we are not contesting the one hundred thousand dollars your honor and i think that was maybe a little bit confusing with with counsel's argument the ability to pay decision that the trial court has to made connex only to the question of whether it gets paid in a lump sum or in installments you have belittled his ability to pay has no impact whatsoever on the amount of restitution that the courts so again that's why we're it's part of why we're not disputing the one hundred thousand dollars that there just wasn't anything in the record to contest that amount our position is simply trial court didn't follow the statute trial court has to decide whether it should be paid all at once or in installments i think everyone agrees here it's obvious this will have to be paid in installments just because of the size of the restitution and then the trial court has to determine the length of time that mr von has to make those payments for good cause the court can go beyond the five years that the statute limits it to it doesn't say for how much longer in the statute that would be a decision that the trial court would have to make but the statute says what it says this court has made that decision in people versus hayes and hayes is not an outlier as recently as two thousand and eleven the rd district of people versus dickie held the same thing again when the issue was not preserved in the trial court don't believe the preservation in the trial court remained in this case we've asked the court to remain in this cause for a new restitution hearing for the trial court to determine two specific things method and manner of pain thank you  i have one concern and that is and maybe my colleagues know this better than i but if you require the defendant to pay an amount of money that he clearly cannot pay and you do that within five years does the court then lose jurisdiction i mean if this gentleman campaign is that the end of your honor because of the provision in the statute that allows the court to extend the period of time beyond the five years i don't believe the court would lose jurisdiction until the court finally determined that any of further efforts to collect that restitution would would be futile or frankly until mr van passes he is not a young man either but it was so how would that work need i mean other than look or doing what the court did that is the end of your release you appear back and from me i would that structurally have the way the court has ordered it now i think it's difficult for that to happen i think mr it puts the onus on mr vaughan to contact the clerk of the circuit cooler asking to set a court date months but the trial court will track whether these payments are being made the amount of these payments and make sure that they're being paid over to mr ward so that is a constant ongoing situation  upon his release from v o c that mr vaughan will have to deal with and that's a matter of the trial court notices him to show up and he is required to show up and answer for any payments that he was ordered to make and has not made  going back to what you just said about putting the burden on mr vonta come to the courthouse when he's released in the burden upon him to set his own court well what about the burden on the circuit clerk the state's attorney or the court to try to keep track of all of these things or all these people you know should there be some burden on the person who owes this to actually come in and say ok i'm out now i you know i have to and i know things get slipped through the crack so he doesn't come into the circuit clerk the state's attorney for whatever reason forgets the court's busy end in five years goes by and somebody goes oh yeah what happened to mr bonomo one hundred thousand dollars restitution so where are we there if and i have also seen the situations occur your honor and i can't answer that there is though i guess  the flip side of that is true too if mr hahn never shows up to set his court date and nobody pays any attention those five years are going to going to pass as well oh that's and i know our time is gone but i really want to follow up on just question because obviously he's an innocent man in the situation but if they don't remain and if the court says ok i'm going to have a review in four point five years because you cannot obviously paint today then the matter we come back in four five years you might have a different job and what do we do we keep extending this out and he's then released from jail i mean all these resources on the c the the five year payment period does not include periods of incarceration so his five years to pay doesn't start until he is released from the department so maybe the order w think years from the time he was released yes ma'am and i didn't i'm having a tough time getting my head around why it is we re man all that's going to happen is the exact same thing the court can can obviously say within thirty days on your release i'm going to d review the situation right the court can say that even if the court gives him five years  i don't believe that they can and the way the statute grazer out of the way the statute reads at the time the court orders restitution these determinations are to be made whether the payments are to be made single erial sorry whether it's to be paid in installments or a lump sum and the length of time he has to make those payments this actually requires all of those to be decided at the time of restitution so i think it's as if the court remains that's the decisions that the trial court has to make under the statute the trial court's action is not to say well they've remained at it so now i'm going to say five years from now when he gets out of jail he has to come back and they can enter the same order that they've just entered that's the problem no ok what i'm saying what i'm asking my question wasn't clear the court will do two things you've asked it to do what are you saying that the court can't hold us down a searing and and as a part of the rain and order you're requiring additional that the defendant appear so that we can determine whether he now has the ability to pay the court can do that your honor and the restitution requirements for mr vantine can be modified the amount  downward based on circumstances at any given time yet the trial court could have him come back to court upon his release to determine his financial abilities at that time and make a change to the order that they've already entered