## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Som ers , 2013 IL 114054

Caption in S upreme Court: THE PEOPL E OF THE STATE OF I L L I NOI S, Appellee
, v. MI CHAEL SOMERS , Appellant.

Docke t No. 114054

Filed Fe bruar y 22, 2013

Held ( Note : Thi s syl l abus

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where the statute calling for a hear ing on the public defe nder’ s fee within 90 day s of final judgme nt was not complied with beca use the hear ing was inadequate, there should be a rema nd for a proper hearin g, an d the defe ndant could not succe ssfully argue that it was too late for any hear ing
at all and that the fee should be vacated—mandator y and direc tory issue not presente d.

Dec ision Under Review Appea l from the Appellate Court for the Four th Di s t ri ct ; hear d in that
court on appea l from the Circuit Court of L ivings t o n County
, the Hon. J ennife r H. B auknec ht, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, State Appellate Def ender
, Kar en Munoz, Deputy Def ender
, and Allen H. Andre ws, Assistant Appellate Def ender
, of the Offic e of the State Appellate D efe nder, of Springf ield, for a ppellant.

L isa Madig an, Attorne y

Gene ral, of Spring field, and Thoma s J . Br own, State’s Attorney , of Pontiac (Micha el A. Scodro, Solicitor Gene ral, a nd Michae l M. Glick and J oshua M. Schneider
, Assistant Attorney s Gene ral, of Chicag o, of counse l), for the People.

J ustices J USTI CE THOMAS delivere d the judg ment of the c ourt, with opinion.
Chief J ustice Kilbride and J ustices Fr eema n, Gar man, Kar meier, Bur

ke, and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 At issue is whether the appellate court proper ly rema nded the cause for a hear ing on the defe ndant’s ability to pay a public defe nder fee when more than 90 day s had passed since the entry of the final order at the trial court level. On the fac ts befor e us, we hold that the cause was prope rly

rema nded for a new hear ing.

¶ 2 BA CKGROUND ¶ 3 The S tate charg ed defenda nt, Michae l Somers, with five counts of burg lary (720 I L CS 5/19-1(a) (West 2008)). Defe ndant entered int o a fully neg otiated plea a g ree ment with the State, wher eby he would plead g uilty in exchang e for a sentenc e of two y ear s’ probation and 180 day s in jail

. T h e circ uit court of L ivingston County imposed that sentenc e and also order ed defe ndant to pay a $200 fee to reimburse the county for the expense o f ap p o i n ted counsel. ¶ 4 Be fore order ing de fenda nt to pay the public def

ender fee
, the t rial court asked whe ther defe ndant thought that he could g et a job when he was rele ased from jail, and defe ndant responde d, “I ’m hoping so.” The court then asked defe ndant if he would use that to pay his fines and costs, and defe ndant replied, “Ye s, ma’am.” Finally , the cour t asked defe ndant if there was any phy sical rea so n wh y h e could not work, and defe ndant said, “no.” After hear ing the defe ndant’s answe rs, the court conclude d that a $200 public defe nder fee would be appr opriate. ¶ 5 The State later filed three petition s t o re v o k e d ef endant’s probation, and def endant admitted all three v i o l at i o n s

. On J uly 1, 2010, the trial court sentenc ed defe ndant to six
y ear s’ imprisonment, and t he court’s sentenc ing order stated that “a ll financial oblig ations previously imposed rema in in full forc e and eff ect.” Def endant filed a motion to rec onsider

-2-his sentence , and the c ourt denied the motion on S eptember 30, 2010. ¶ 6 Def

endant appea led, arguing that the court had not complied with section 113-3.1(a ) of the Code of Criminal Procedur e of 1963 (725 I L CS 5 / 1 1 3-3.1(a ) (West 2010)) when it imposed the public defe nder fee

. Def endant asked the court to rema nd the matter for a proper hear ing. The appellate court ag ree d with defe ndant that mere ly asking a defe ndant about his employ ment status befor e imposing the fee does not satisfy section 113-3.1(a )’ s require ments. Thus, the court re m an d ed the matter for a proper hear ing. No. 4-10-0869 (summary order under Supreme Court Rule 23). Def endant then filed a petition for rehe aring
, discussing this court’s rec ent decision in People v. Gutierrez
, 2012 I L 111590, and arguing that the cause should not have been rema nded for a new hear ing beca use more than 90 day s had passed since the trial court’s final judgme nt. The appellate court denied the petition for rehe aring

. ¶ 7 We allowed defe ndant’s petition for leave to appea l. I ll. S. C t

. R

. 3 1 5 (ef f. Fe b. 26, 2010).

¶ 8 ANALYSI S ¶ 9 Def

endant raises a single issue for our revie w. Def endant contends that when more than 90 day s have elapsed since t he entry of t he trial court’s final judgme nt, the appellate court is without authority to rema nd for a hear ing on a defe ndant’s ability to pay a public defe nder fee

. Ac cording to defe ndant, the 90-day time limit provided by section 113-3.1(a ) is mandatory

rathe r than dire ctory

. ¶ 10 Normally
, this argument would be considere d forf ei t ed b ec ause a rema

nd to the trial
court was the specific relief defe ndant reque sted in th e appellate court, and he raised the timing arg

ument for the first time in his petition for rehe aring

. Howeve r, the State explains that it is forg oing its rig ht to argue forf eiture beca

use this is a rec urring issue and the public interest fa vors this court re achingthe merits. ¶ 11 Section 113-3.1(a ) of the Code of Criminal Procedur e provide s as follows:

“Wheneve r under either Sect i o n 113-3 of this Code or Rule 607 of the I llinois Supreme Court the court appo i n t s co unsel to repr esent a defe ndant, the court may order the defe ndant to pay to the Clerk of the Circuit Court a rea s o n ab l e s u m to reimburse either the county or the S t at e for such repr esentation. In a hear ing to deter mine the amount of the pay ment, the court shall consider the aff idavit prepa

red by the def

en d an t u n der Section 113-3 of this Code and any other information perta ining to the defe ndant’s financ ial circ umstances which may be submitt ed by the parties. Such hear ing shall be conducte d on the court’s own motion or on motion of the State’s Attorney at any time afte r the appointment of counsel but no later than 90 day s afte r the entry of a final order disposing of the case at the trial level.” 725 I L CS 5/113-3.1(a) (West 2010). ¶ 12 Def

endant argues t hat, bec ause the appellate court filed its dec ision more than 90 day s afte r the trial court’s final judgme nt, the cause could not be rema nded fo r a h ea ring on defe ndant’s ability to pay the fee

. Def endant contends that, pursuant to the rules set forth in People v. Robinson
, 217 I ll. 2d 43 (2005), the 90-day time l i m i t in section 113-3.1(a ) is

-3-mandatory rathe r than direc to ry

. T hus, acc ording to defe ndant, once that time limit has

passed, no he aringmay

be held a nd the fe e must be vac ated. ¶ 13 The State contends, howeve r, that, in this particula r case , the timing issue is a red he rring

. Acc ording to the S tate, the problem i n this case is not that n o h ea ri n g wa s held wit hin the statutory time limit
, b u t t h at t h e hear ing that the court did hold was insufficient to satisfy section 113-3.1(a )’s require ments. The State conce des that the statute require s more than that the trial court simply ask the defe ndant a few questions about his employ ment status. Howeve r, because the trial court complied with the statute’s time limit , the State contends that we should simply rema nd the cause for a proper hear ing and that we do not need to rea ch the issue of whe ther that time limit i s mandatory or direc tory . We ag ree with the State. ¶ 14 First, it i s cl ea r, as t he S tate concede s, that the t rial court’s few questions to defe ndant about his employ

ment status wer e insufficient to satisfy the statute. See People v. Roberson
, 335 I ll. App. 3d 798, 804 (2002) (trial court’s two questions about defe ndant’s employ ment status insufficient to satisfy section 113-3.1(a )). Both this court and the appellate court have been very clea

r about what a trial court must do to satisfy section 113-3.1(a ). To comply with the statute, the court may not simply impose the fee in a perf unctory manner

. Id. Rather, the
court must g ive the defe ndant notice that it i s co n s i d ering imposing the fee
, and the defe ndant must be g iven the opportunity to present evidence reg arding his or her a bility to pay and any other rele vant circ umstances. Id. at 803-04. The hear ing must focus on the costs of repr esentation, the defe ndant’s financ ial circ umstances, and the fore seea ble ability of the defe ndant to pay

. People v. Love
, 177 I ll. 2d 550, 563 (1997). The trial court must consider,
among other evidenc e, the defe ndant’s financ ial aff idavit. 725 I L CS 5/113-3.1(a ) (W es t 2010); People v . Hanna , 296 I ll. App. 3d 116, 124 (1998). ¶ 15 C l early
, then, the trial court did not fully comply with the statute, and def en d an t i s entitled to a new hear ing. J ust as clearly
, though, the trial court did have some sort of a hear ing within the statut o ry t i m e period. The trial court inquired of defe ndant whether he thought he could g et a job when he was rele ased from jail, whether he planned on using his future income to pay his fines and costs, and whether there was any phy sical rea son why he could not wo rk

. On l y afte r hear ing defe ndant’s answe rs to these questions did the court impose the fee

. Thus, we ag ree with the State’s contention that the problem here is not that the t rial court did not hold a heari n g within 90 day s, but that the hearing that the court did hold was insufficie nt to comply with the statute. ¶ 16 At oral argument both in this case and in Gutierrez
, J ustice Gar man asked the defe ndant whether a rema

nd would be permissible in a case in which the trial court did hold a hear ing within 90 day s but the hearing was defe ctive in some way

. In Gutierrez
, the appellate defe nder r esponded:

“I f the statute was followed and there was a hear ing within the 90 day s and then it went up on appea l, I believe that, if there was an argument that th e h ea ri n g wa s improper, y ou could rema nd it for a new hear ing beca use in that instance the statute has been complied with. There was a hear ing. There was an order

. But here we don’t have that.” By contra st, when J ustice Gar man asked the same question i n t h i s case, the appellate

-4-defe nder r esponded: “My position is that any hear i n g af t er 90 day s is prohibited. I t cannot be remanded. Realistically
, a rema nd would not occur within the 90-day limit

. I f somehow that happene d, it c ould be rema nded. But it cannot be rema nded afte r the 90-day limit

. T h e s t atut e is unambig uous. This exception that the State is talking about wher e y ou should be able to re mand it, it doesn’t exi st. It’s not in the statute. I t states plainly that i t h as to be held within 90 day s. When a statute is clea r and unambig uous, y ou don’t rea d implicit ex ceptions into it.” ¶ 17 We believe that the a ppellate de fende r’s answe r wa s corr ect in Gutierrez and incor rec t in this case

. Ag ain, here
, the trial court’s err or was not in failing to hold a hear ing within 90 day s. R at h er , t he problem is that the hear ing that the court did hold within 90 day s was insufficient to comply with the stat u t e. W e note that this is the orig inal argument that d ef en d an t himself raised in the appellate court, arguing only that the case should b e

rema nded for a hear ing that complies with the statute. Def endant did not bring up the timing issue until he filed his petition for re h earing

. We see no rea son why the trial court’s err or should be uncorr ecta

ble on appe al. ¶ 18 In sum, beca

use the trial court complied wit h the s tatutory time period, there is simply

no impediment to rem an d ing the cause for a proper hear ing. The issue of whether the statute’s 90-day time limit is mandatory or direc tory is not prese nted by the fac ts of this case

. As we did in Gutierrez
, 2012 I L 111590, ¶¶ 25, 26, we ag ain express our disappointment that defe ndants continue to be denied proper hear ings on public defe nder fee s, we remind the trial

cour t s o f t h eir obligation to comply with the statute, and we trust that we will not have to speak on this issue ag ain.

¶ 19 CONCL USI ON ¶ 20 T h e t ri al co urt’s three questions to defe ndant about his employ men t s t at u s we re insufficient to sati s fy s ection 113-3.1(a )’s require ments. Def endant is entitled to a proper hear ing befor e a public defe nder fee may be imposed. The appellate court proper ly rema nded the ca use for a new hear ing, a

nd we a ffirm the a

ppellate c ourt’s judg ment.

¶ 21 Affir

med.

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