welcome to everyone the call the docket today thursday nov fifteenth two thousand and twelve our next first case on the docket today's agenda number ten case number one one four it please the court healthful my name's alan andrews i'm from the office of the state appellate defender and i represent mr summers the issue in this case is whether a section one one three dash three point one a which deals with  appointed counsel reimbursement fees precludes remaining a case for a hearing on the defendant's ability to pay for an appointed counsel fee where more than ninety days has elapsed since the final order was entered in the trial court  section one one three deaths three point one a states that a hearing to impose a fee for a court appointed counsel shall be conducted on the court's own motion or on the motion of the state's attorney at any time after the appointment of counsel but no later than ninety days after the entry of a final order disposing of the case at the trial level the defense position in this case is that the statute means what it says there can be no hearing of any type more than ninety days after the entry of the final order in the trial court it's clear and unambiguous there is no need to resort to any age of construction to understand what this statute means there's no reason to invent policy issues to try and divine the intent of the legislature the statu plainly spells out the legislature's intent no hearing more than ninety days after the entry of the final order in the trial court there are two main issues that have really been raised in this case the first is whether or not this statute is mandatory or directory that is whether or not there's a consequence for failing to apply with the ninety day limit the second issue is does the state's argument that there's some sort of implicit exception of the ninety day rule for does that argument hold any water to address whether or not the statute is mandatory or directory you know that the preliminary issue and that is whether it's mandatory or permissive but it's not been clear that the statute is permissive it's obviously mandatory in the sense of the trial court is supposed to comply with it so then you move on to the decisive issue in this case and that's whether the statute is mandatory or directory now i would concede that section one one three das three point one a is presumed to be directory because it sets forth the procedural command and also because it does not specify a consequence for failing to comply with the procedural command articulated two instances where the presumption that such a statute is is directory can be overcome only one of those applies in this case and that's the exception where a statute is mandatory if its provisions are designed to secure order system and dispatch and the statute contains negative language importing that it shall be followed it the actual not be done in any other manner or time  in this statute it plainly says that the hearing can be held at any time after the appointment of counsel but no later than ninety days after the entry of a final order judgment in the trial court those are the negative words they import the procedure cannot be held at any other time therefore the presumption that the statute is directory has been overcome the statute plainly is mandatory and therefore the consequence for not following the  well you know the statute already puts the burden on the trial court or the state to to raise this issue and typically it's raised at the sentencing hearing i mean i can't really imagine that as long as a stay the court is on it ken you know have this fear impose i don't there's no way the defendant can do anything in the trial court to prevent him from holding this hearing so i don't think you know the idea that this appeal is going to go on really matters and the second thing isn't i don't know much about civil law i've been an appellate defender ever since i graduated but i'm you know the case the state cited saying that the appellate court lost jurisdiction when the notice of appeal was filed you know if you read beyond the sentence cited by the state it it states that in civil cases the the trial court can still entertain fee attorney fee petitions and again i don't know much about civil law but i don't see why if in a civil case a court rechange jurisdiction over requests for attorney fees why it could not retain jurisdiction after the notice of appeal was filed here up to the ninety day limit and that seems to me t especially make sense one the legislature seems to contemplate that there that this fee could be imposed after the notice of appeal is filed so i guess my short answer is i just can't imagine how a defendant is going to remanded but it cannot be remanded if it's after ninety days after the ninety day limit you know the statute is unambiguous this exception that the state is talking about where you should be able to remain and it doesn't exist  not in the statute that states states plainly that it has to be held within ninety days but you know want to statute is clear non ambiguous you don't read implicit exceptions into it you know furthermore that the mandatory nature of of the statute shows your interpretation then would say that because the no later than is an absolute bar if you just said within that would be something different it needs it's presumed to be a directory so it needs to have that the negative language to overcome th directed within is not negative but no waiter is it well but what's interesting about the statute to me is it says that this hearing can be held at any time after the appointment of counsel it's not after the final order it can be held at any time but then it puts an end date on it so the wording maybe has to be a little different and has to say no later than rather than within ninety days of the final order that it does say as i recall but no later than ninety days but it can the hearing could be before the final judgment oh yes the hearing can be any time but no waiters are ninety days and that of course the re man is going to be later than the ninety days and that that's what this dispute is   you know because the statute is mandatory if you read this if you read this and struck the this exception in that the state wants it you can remain and it that completely negates finding that the statute is mandatory because then there is no consequence for not following the not for complying with the ninety day limit and if we deal with this question recently and people are yes yes you did but now answer the question it was different because in good years there was no hearing held it was imposed by the circuit clerk so this court i assume wanted to answer the question but in fact held it because the circuit clerk had no authority to impose the fee that was  positive in that case and didn't reach whether or not this could you know this was mandatory or directory i would point out that the the state's assertion that it would be very unusual bizarre to have have a mandatory deadline have a deadline run its course during an appeal simply isn't true as i pointed out in the reply brief the time limit for dismissing a post convention petition is as frivolous that eight the circuit court has erroneously dismissed the petition as frivolous or patiently without merit it doesn't send it back for another first stage proceeding it remains for second stage proceedings so this would hardly be a unique situation it happens all the time under the post conviction act and as i said that deadline under the post conviction act as here is mandatory so it follows that the same thing should happen here i would also just point out that if this court accepts the state's argument that there is this exception if it accepts that that the the way the status phrased that it's not going to work out the way the state claims that it's going to you know the state suggests that there's an exception and that only cases where the hearing is been held within the ninety day limit only those cases will be remanded the state says you know if it's late they will not be remanded but the state argue ninety day limit is directory therefore there's no but there's no sanction for violating it so there's no reason that it can't be remanded under the state's theory for being untimely just as it could be remanded for not having notice or not listening to the defense evidence so there there is no principled way to say that you can only remain on because if it's timely but there's some other problem with it so because the state argues that this time limit is directory and a late hearing can be remanded i suppose we could see cases where maybe the order was entered two hundred days too late being reminded for of all things a timely hearing on the subject  so in conclusion this court should hold that the ninety day limit is mandatory not directory it should recognize that section one thirteen deaths three point one a is clear and unambiguous and does not contain this implied exception that the state seeks you know doing so will provide the prosecutors in the state with an incentive to comply with the statute and let's face it the statute isn't difficult the defendant just has to have notice that that there is going to be a hearing and he has to have an opportunity to present evidence and the court has to consider the evidence it's it's just not difficult so mr summers requests that this court vacate the portion of the court order that remains the cause for a new fee hearing and simply vacate the two hundred dollars fee that was imposed in this case i have there are no other questions that concludes my presentation thank you mr andrews counsel for the it please the court counsel josh nighter on behalf of the peoples to illinois the state's position is not that there is an exception to section one thirteen three point a state's position is that that statute is silent on whether an appellate court has remand as one of the remedies for a timely but when and some other way deficient hearing in this case there was a hearing the hearing was in fact over a year before the entry of the final order disposing of the case at the trial so there's no question that there was a timely hearing the question as because that hearing was constitutionally an adequate it didn't afford defendant an adequate opportunity to present evidence of his financial circumstances counsel before you go much further i want to make sure we're what we're not talking about ok in some context this court is filled stands with tory commands to judges to be direct very when they implicates the separation of powers issues and i don't see that raise their you conceding that there is no separation of powers as issue with section one thirteen to three point one and we don't see a separation of powers over  here rather the question of whether the statues mandatory or directory is really in a posit because here the trial court did have the hearing it had a flawed hearing so it satisfied the time requirements question is now what do we do to correct the due process error in the hearing in all these other contexts if there's a due process problem and otherwise timely proceeding the remedy is to remand for medial proceeding if a trial court conducts a trial within the speedy trial period and that trial violates due process the defendant couldn't argue that you can't remand for a new trial because the remedial trial on remand would fall outside of the speedy trial period that once the timing requirements been satisfied it's no longer live and has no bearing on the appellate remedies so the question is really if you have a flawed but timely hearing what's the remedy defendant's construction or interpretation of the statute is that this is an incredible error that if the trial court makes a mistake let's say that the trial court has a hearing that is in all respects correct but it fails to provide adequate notice a has a a due process right to notice so that's that's an error defending its position apparently is that that can't be corrected despite the fact the court within the ninety day period held the hearing the court considered the affidavit that's required to consider by the statute that the defendant supplied in the first instance to get counsel appointed the court consider the evidence that the defendant presented in the court made a finding as to what an appropriate fee was imposed that fee but because the notice was inadequate that fee have to be vacated and there's no remedy available and that simply contrary to how the appellate process works in illinois there are really only two types of trial error th cannot be corrected on remand and this error and it's neither of them the first type of error that can't be corrected on remand is errors were the initial proceeding in the trial court was not improper in the manner in which it was conducted but in the fact that it was conducted at all so if a trial court conducts a trial outside of the speedy trial period there's no way to remand before a new trial a new time we trial that that ship has already sailed if the initial trial violates double jeopardy there's no way to remand for a new trial that is not also violate double jeopardy if the trial court lacks jurisdiction in the original trial there's no way to remand for another trial and somehow give the trial court jurisdiction if it lacked in the period and it's too late now we can't mandate for an assessment for a remedial hearing where there was no original timely hearing for us to remedy this is not that case this is the other class of cases there are really two types of errors in these public the public defender fee cases the first type of error this court corrected and gets here as were said if there is no fee is asked if if no one seeks a fee within the period then that's it you don't remand for a first bite at the apple beyond the ninety days the second type of case is the case that's presented here where you have a timely but deficient hearing what's the remedy and our position is that's the same remedy that's in all the other due process errors if there is a denial of due process then you remand to give the defend the process he it they instead chose the language not later than ninety days right so you do concede that they could have written this their tried to say within ninety days they they couldn't understand your argument with respect to a hearing that was held within the ninety days and fission but accepting for purposes of the argument that we're just looking at the language and whether or not it's the rectory or permissive based on the language you can see they could have said within but instead they use the later the words not later than ninety days that that is true that is the language they used and if we remain for a hearing in this case it will take place more than two years after the final judgment that is correct so is is this again pushing aside your first argument is this really what the legislature could have intended when it wrote that the hearing must take place no later than ninety days there for a final judgment honor and the reason is that well there are there are two reasons one is it's the legislature could not have intended that errors by the trial court make it in a trial court making good a good faith effort to properly impose a fee prevents the imposition of a fee at the statutory and the legislative intent behind the statute is to some extent possible recoup some of the cost of a publicly funded defense so interprete ing the time with the timing requirement as as precluding remand for a hearing defeats that purpose the other reason that this would be in the case just so we're clear of when there was a fee petition as you said occurred in this case deficient because of improper notice within the ninety days and also when there would have been no fee petition within the new age or answer would be the same right and the reason i mean that certainly the argument is stronger in the case where you had a hearing within the ninety days in that case as you said we don't believe that statute has any application the same way the speedy trial statute doesn't have any application to what the appellate remedies are after a timely but improper trial  cites proper interpretation of a statute cannot simply be based on its language it must be grounded on the nature objects and consequences which would result from constrain it one way or the other and as this court explain and deliver large back in two thousand and nine whether a statute is mandatory and directory is a question of whether there is a specific consequence to failure to comply not so if it's directory thought there's no consequence it said the legislature has not specified that the consequence be an invalidation of the government action so indelible or it the court then went on to explain what negative language meant and it said that in that case the question was whether a trial court's failure to admonish a defendant as to the immigration consequences of a guilty plea required that court to to allow the defendant to withdraw the guilty plea and this court held that it did not and the reason was that there was no negative language in the statute requiring admission and when the court went on to say what that meant the court said that as for example the statute did not prevent the court trial court from accepting defendant's guilty plea that had been negative language you must admit to him or you cannot accept a guilty plea the court then gave another example where the court said that the legislature and that case had actually considered negative language the language was that the court shall take it the judgment and permit defendant to withdraw the plea of guilty but because the general assembly did not adopt that language that negative language there was no negative language prohibiting further action not too long ago i got a notice from the clerk's office saying that i needed to check in my eight forty five this morning and if it said you shall check in by eight forty five i would know i need to check in by eight forty five if it said that you shall check in no later than eight forty five i would say oh i need to check in by eight forty five but neither of those constructions says what the specific consequence will be if i check in at nine it's not there's no doubt on how does it where with the constructions and if the legislature wish to communicate that the appellate court had no remedy if there was an error it had had ways to do that beyond taking within ninety days and no later than ninety days as to whether there is any way that the defendant can can sandbag effectively and prevent fee from being assessed there is if the court as in this case assesses a fee after an adequate hearing or with an adequate notice because there is a safe harbor in the forfeit rules created under people v love the defendant need not say anything to to preserve his claim on appeal if he says nothing well he says something then the court can easily remedy this says as counsel mentioned this is not a complicated error to remedy it just need to be brought to the trial court's attention if the defendant were to object and say your honor there is an adequate notice the court would then provide him with adequate notice and remedy the error right there if he says nothing and said files a notice of appeal and there becomes uncollectable the trial court is to fast of jurisdiction to address the issue because although generally fee issues are collateral to the issues on appeal let's look at this stand back in the issue should your perspective here right within the ninety days or the court or the court then the defendant will either simply pay the fee he can just simply pay the fee even without the hearing or he can raise the issue in which case the hearing addressed the case where there was no hearing within ninety days and the tears clearly said you cannot remain for a hearing where there wasn't an assessment in the first place in a case such as this which is the second class of cases that your tears didn't address you had the hearing the court on its own motion had a hearing but it it made a mistake so the question is really whether a timely but improper hearing has any remedy other than just vacating the fee and the game that allows the defendant to avoid the fee altogether is once he files no some appeal without having brought the error to the courts know the court's attention and this would have to be if you've had a hearing within not only ninety days but the first thirty days that's for him to follow in those appeal he only has a thirty day window to do that i hesitated even to mention the word sandbag and because i don't like the thought of either side stanbury but let's talk about the practical implications and then  conclude but both this court and the appellate court have been struggling for over a decade to get trial courts and prosecutors to comply with the statute and hold these hearings in a timely fashion and apparently the message is still not getting through so do you think given the statute the directory reading and again this is just practical right you know we have to look at the lawn as the do you think that given the stairs that are directly reading is going to do anything to solve this problem your honor i think giving the statute  mandatory reading will do relatively little to solve this problem because the problem is not one of incentives i don't think that anyone would argue that the trial court is make or the states attorneys are making these are these errors out of malice or intent the trial courts are doing their best and they're making mistakes that's certainly true but making those stakes on corrupt mistakes on correctable is not going to prevent mistakes because they're not intentional so there are there have been more than decades of trial courts making mistakes in evidentiary rulings and certainly you could argue one could argue that it would provide a powerful incentive to trial courts not to make eviden the only remedy on appeal was to dismiss the case not the defendant go free regardless of the evidence against them that would be a powerful incentive not to make mistakes and evidentiary rulings but there would still be mistakes and eventu rulings because they're mistakes by their nature they're they're not deliberate they're just errors and that's when the problem process can come into play and collect those errors it incentives can really only affect change if they're reply would i think i want you to have a chance to comment on it counsel made much of the fact that he says no later than ninety days and i would read this and see i think it would be inconsistent to say with you he shall be held at any time after the that's that's actually correct i think as a matter of grammar if the starting point is before the final order then if you said any time after council and within ninety days or but within ninety days would actually change the starting point because it would have to be within ninety days to either side of the final order so i think that's that's right again our position is really that this we're not arguing there's an exception to the statute it's simply silent on the appellate remedies on the way that the defendant can avoid a few altogether if you have a timely but flawed assessment hearing the defendant files notice of appeal this deprives the trial court of jurisdiction to idiots it's error because although generally feel issues are collateral to the judgment being appealed from if you're appealing from the assessment of the fee it's by definition not collateral to the issues being appealed from on in fact in the case that defendant s it's libertyville the bank of waukegan the court explains that the fees are collateral because they lie outside of the issues on the appeal from underlying judgment here it is the issue of the appeals and underlying judgement and if the trial court has jurisdiction days and so if the ninety day clock even though it was initially satisfied by an erroneous hearing somehow continues to run then the error just becomes uncorrectable and becomes virtually unique among errors in illinois jurisprudence so if there no further questions that question correctly that it can't be read as saying within ninety days because it would change the starting date it has to be read as it is any time after the appointment of counsel but no later than ninety days there is no way to say it's within ninety days that i agree with that i so the legislature didn't have a choice of using within or look not later which would mean what does that do to your argument that not later than as some specific me meaning well i think the point is that the legislature chose the was not later than but no later than because it gives the state more time it gives it all away from the appointment of coun to no later than ninety days after the final order in the trial court i mean that gives the state more time to conduct a hearing but it does put a final limit on when the state can conduct the here if they had said that in the fee hearing had to be held within ninety days of the of the final order it could only be held essentially after ninety days or if there was some way to predict when the final orders can be entered it could be held ninety days before but  know the statute doesn't say that it says but no later than and those are the negative words did i best i could i'm sorry you know the state referred to a gloss from dull the lawyer and that's simply not true that's a state straightforward application of robinson this court found that there were no negative words in the statute you know that you have to do what you're supposed to tell somebody pleading guilty that there might be immigration consequences this court simply found there are no negative words in that statute therefore the presumption that it was directory was not overcome here there are negative words there's not delve a large didn't change the law at all it's simply an app is that here because that statute did not contain negative words unlike this statute counsel stress that this is going to be unique that every other time when there's a deficient hearing in the trial court you can remain handed to correct the hearing and as i pointed out in my first argument that's simply not true you look at the p c a statute you know that the trial court is ninety days to dismiss of this frivolous are paid only without merit if the trial court for example considers input from the state during those ninety days without merit is not told by the the appeal it is not remained it so that the trial court can can have another hearing and get it right so it isn't going to this isn't going to be unique it's going to be like the post conviction statute and you know we all know how many post conviction cases there are so this is going to have a lot of a lot of company you know the states stress that the errors committed here are not intentional and i'm not saying you know of course i agree with that they're not trying to deprive the defendant of these hearings are just being careless you know if this court makes the statute mandatory as it is as it is written you know that's going to concentrate the minds of these prosecutors and i think they're going to find out that the simple statute is really easy to comply with and you have this long period of time from the appointment of counsel to no later than ninety days after the the imposition of the final order to comply with  all you have to do is give the defendant notice and a chance to present some evidence i think that declaring the statute mandatory as it is written will have a salutary effect on the judicial system and well at least get rid of all of these remains that you know that we you know we raise this issue all the time and it's just not there fascinating so in any event if there are no questions to just ask the court to reverse thank you