Illinois Official Reports 

Appellate Court

People v. McClinton, 2015 IL App (3d) 130109

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

HOWARD A. McCLINTON, Defendant-Appellant.

District & No. Third District

Docket No. 3-13-0109

Filed March 5, 2015

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

On appeal from defendant’s conviction for delivery of less than one 

gram of cocaine within 1,000 feet of a church, his sentence to seven 

years’ imprisonment and the imposition of various fines and fees was 

upheld, but an order to pay $2,958 for the services of his appointed 

counsel was vacated, and the cause was remanded for a proper hearing 

under section 113-3.1 of the Code of Criminal Procedure.

Decision Under 

Review

Appeal from the Circuit Court of Whiteside County, No. 11-CF-443; 

the Hon. Stanley B. Steines, Judge, presiding.

Judgment Vacated in part, affirmed in part, and remanded with directions.
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Counsel on

Appeal

Bryon Kohut, of State Appellate Defender’s Office, of Ottawa, for 

appellant.

Trish Joyce, State’s Attorney, of Morrison (Robert M. Hansen, of 

State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the 

People.

Panel JUSTICE LYTTON delivered the judgment of the court, with opinion.

Justices O’Brien and Schmidt concurred in the judgment and opinion.

 OPINION 

¶ 1 A jury found defendant, Howard A. McClinton, guilty of delivery of less than one gram of 

cocaine, and the court sentenced him to seven years’ incarceration. At the sentencing hearing, 

the court imposed various fines and fees and ordered defendant to pay $2,958 to reimburse the 

county for the public defender’s services. Defendant appeals, arguing that the court abused its 

discretion by imposing the public defender fee and that defendant is entitled to additional 

$5-per-day credit toward his fines. We vacate the public defender fee and remand with 

directions; we also order the circuit clerk to apply the appropriate sentencing credit and 

otherwise affirm defendant’s conviction. 

¶ 2 A jury found defendant guilty of unlawful delivery of a controlled substance (less than one 

gram of cocaine) within 1,000 feet of a church (Class 1 felony) (720 ILCS 570/407(b)(2) (West 

2012)) and unlawful delivery of a controlled substance (less than one gram of cocaine) (Class 2 

felony) (720 ILCS 570/401(d) (West 2012)). 

¶ 3 Prior to sentencing, the State moved the court to order that defendant reimburse the county 

$2,958 for services provided by appointed counsel. In the motion, the State asserted that 

defendant had the ability to pay $2,958, but did not support that assertion with any facts. 

Defendant filed a motion requesting $5-per-day credit under section 110-14 of the Code of 

Criminal Procedure of 1963 (Code) (725 ILCS 5/110-14 (West 2012)) for time spent in 

presentence custody. The motion asserted that defendant had spent 252 days in presentence 

custody. 

¶ 4 The cause proceeded to a sentencing hearing. Defendant gave an unsworn statement in 

which he said that he was physically capable of working and hoped to take advantage of 

general educational development classes and work training in prison. The court imposed a 

sentence on only the Class 2 felony and ordered that defendant serve seven years’

incarceration. 

¶ 5 Based solely on the presentence investigation and the statements made by defendant in 

allocution prior to sentencing, the court found that defendant was physically able to work and 

had the ability to reimburse the county $2,958 for services he received from the public 
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defender. The court did not allow defendant an opportunity to present evidence on his ability to 

pay, nor did the court ask defendant any questions. 

¶ 6 The court also imposed all the assessments requested by the State, including a $150 street 

value fine; a $100 lab fee; a $1,000 drug assessment; a $100 Trauma Center Fund fine; a $5 

spinal cord injury fee; a $150 reimbursement to the Sterling police department for funds used 

in the controlled buys in the present case; a $25 State Police Services Fund assessment; and a 

$20 pill and drug disposal assessment. The court then added $90 in fees to the State’s Attorney, 

and a $100 Violent Crime Victims Assistance Fund fine. A written order found that defendant 

had spent 252 days in presentence custody, entitling him to a credit of $1,260, to be applied to 

the street value fine, the drug treatment fund assessment, and the Trauma Center Fund fine. 

The clerk’s costs sheet, however, did not reflect application of the credit. 

¶ 7 Defendant filed a motion to reconsider his sentence, which was denied. 

¶ 8 On appeal, defendant raises two issues: (1) that the public defender reimbursement fee was 

imposed without the hearing required by section 113-3.1 of the Code (725 ILCS 5/113-3.1 

(West 2012)); and (2) that the circuit clerk did not accurately apply defendant’s $5-per-day 

sentencing credit (725 ILCS 5/110-14 (West 2012)) against his fines. 

¶ 9 I. Public Defender Reimbursement Fee 

¶ 10 Section 113-3.1 of the Code grants the court the authority to order a defendant to reimburse 

the county or the State a “reasonable sum” for representation provided by appointed counsel. 

725 ILCS 5/113-3.1(a) (West 2012). Either the State or the court may move for a hearing to 

determine defendant’s ability to pay the reimbursement. The hearing may occur anytime after 

the appointment of counsel but must occur no later than 90 days after the entry of a final 

judgment disposing of the case. Id. The reimbursement monies are to be paid by the defendant 

to the circuit clerk to reimburse either the county or the State for appointed counsel’s services. 

Id.

¶ 11 Section 113-3.1(a) provides the necessary procedural framework for the reimbursement 

hearing. Id. First, the court must give defendant notice of the hearing. People v. Somers, 2013 

IL 114054, ¶ 14. That notice is necessary so that the defendant can prepare evidence of his or 

her financial circumstances. At the hearing, the defendant must be given the opportunity to 

present evidence regarding his or her ability to pay and any other relevant circumstances. Id.

The hearing must focus on the costs of representation, the defendant’s financial circumstances, 

and the foreseeable ability of the defendant to pay. Id. The court must consider the assets and 

liabilities affidavit attested to by defendant under section 113-3(b) of the Code (725 ILCS 

5/113-3(b) (West 2012)). Somers, 2013 IL 114054, ¶ 14. The procedural safeguards provided 

by section 113-3.1(a) are necessary to meet the demands of due process. See People v. Cook, 

81 Ill. 2d 176 (1980) (holding unconstitutional the predecessor to section 113-3.1 because the 

former statute did not require a hearing to determine defendant’s ability to pay). 

¶ 12 In the present case, the court did not comply with the requirements of section 113-3.1(a) 

because defendant was not given notice of the hearing and was not afforded an opportunity to 

present evidence regarding his ability to pay. A defendant does not waive his due process right 

to the procedural safeguards described by section 113-3.1 by failing to object when those 

safeguards are not met. See People v. Love, 177 Ill. 2d 550, 564-65 (1997). 
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¶ 13 Several recent Illinois cases have addressed whether a court of review should remand for a 

new public defender fee hearing after vacating a public defender fee for failure to comply with 

section 113-3.1. See, e.g., Somers, 2013 IL 114054; People v. Gutierrez, 2012 IL 111590; 

People v. Collins, 2013 IL App (2d) 110915; People v. Williams, 2013 IL App (2d) 120094. In 

addition, several unpublished cases have addressed the issue.1

¶ 14 The issue in those cases was whether the 90-day time limit provided by section 113-3.1(a) 

prevents a court of review from remanding for a new hearing after 90 days have passed since 

the final judgment in the trial court. See, e.g., Somers, 2013 IL 114054, ¶ 12 (“Defendant 

argues that, because the appellate court filed its decision more than 90 days after the trial 

court’s final judgment, the cause could not be remanded for a hearing on defendant’s ability to 

pay the fee.”). In Somers, the supreme court held that, where the trial court initially complies 

with the time limit by holding “some sort of a hearing” (id. ¶ 15) within 90 days, “there is 

simply no impediment to remanding the cause for a proper hearing” (id. ¶ 18). 

¶ 15 The issue that we must resolve is whether the proceedings in the trial court constituted 

“some sort of a hearing” into defendant’s ability to pay within the 90-day period. Somers did 

not define the minimum amount of procedural due process necessary to qualify as “some sort 

of a hearing.” In Somers, the trial court addressed the defendant’s ability to pay in open court, 

with the parties present, and asked the defendant three questions about his ability to pay. The 

court listened to the defendant’s answers and then imposed a public defender fee. The court did 

not give the defendant the opportunity to present additional evidence or argument. 

¶ 16 In this case, the parties were in open court for sentencing; the court did not question 

defendant about the public defender fees. Instead, it relied only on the presentence 

investigation report and the defendant’s statement in allocution before sentencing. 

¶ 17 Black’s Law Dictionary defines a “hearing” as a “judicial session, open to the public, held 

for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying.” 

Black’s Law Dictionary 836 (10th ed. 2014). In Anthony v. Gilbrath, our supreme court 

defined a hearing as “a judicial examination of the issues between the parties, whether of law 

or of fact.” Anthony v. Gilbrath, 396 Ill. 125, 128 (1947). Taking some information from 

defendant’s presentence report and his sentencing hearing and pronouncing an amount to be 

paid to the public defender lacked the substantial due process requirements and protections 

under the statute. The question we have, however, is whether the present proceedings 

constituted “some sort of a hearing,” as stated in Somers.

¶ 18 To resolve this issue, we look to the intent of the statute itself. “The best indication of 

legislative intent is the statutory language, given its plain and ordinary meaning.” People v. 

Jones, 223 Ill. 2d 569, 581 (2006). The intent of section 113-3.1 is to have a qualified 

defendant reimburse either the counties or the State for the cost of public defender 

representation. See 725 ILCS 5/113-3.1 (West 2012). In light of this statutory purpose, we 

interpret the language broadly and find that the actions of the trial court were sufficient under 

Somers; it appears that some sort of a hearing was held. Thus, we remand the cause for a proper 

hearing under section 113-3.1. 

 

1

See, e.g., People v. Kyle, 2014 IL App (2d) 120260-U; People v. Simmons, 2014 IL App (1st) 

123255-U; People v. Jefferson, 2013 IL App (4th) 120089-U; People v. Remesch, 2013 IL App (4th) 

120077-U.
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¶ 19 II. $5-Per-Day Credit 

¶ 20 The parties agree that defendant is entitled to a $1,260 credit toward his fines under section 

110-14 of the Code (725 ILCS 5/110-14 (West 2012)). On remand, the circuit clerk shall apply 

that credit toward defendant’s fines, including the $1,000 drug assessment, the $150 street 

value fine, the $100 Trauma Center Fund fine, and the $25 State Police Services Fund fine. 

¶ 21 We commend the court and the parties for their attention to the costs phase of sentencing. 

Their actions created a clear record on appeal, from which this court can easily review the 

record, including the court’s order allowing $5-per-day credit. 

¶ 22 III. Conclusion 

¶ 23 The judgment of the circuit court of Whiteside County is vacated in part, affirmed in part, 

and remanded with directions. 

¶ 24 Vacated in part, affirmed in part, and remanded with directions.