2014 IL App (4th) 1 21088 NO. 4

- 1 2

- 1 0 88 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff

- Appellee, v. JOHN W. ROGERS, Defendant

- Appellant

. ) ) ) ) ) ) ) ) Appeal from Circuit Court of Sangamon County No. 12CF242 Honorable Chris Perrin , Judge Presiding.

JUSTICE POPE delivered the judgment of the court , with opinion

. Justices Turner and Steigmann concurred in the judgment and opinion

. O PINION ¶ 1 Following a September 2012 jury trial , defendant , John W. Rogers, was found guilty of aggravated battery (720 ILCS 5/12

- 3.05(a)(1) (West Supp. 2011 )) and not guilty of unlawful restraint (720 ILCS 5/10

- 3 (West 2012))

. In November 2012, t he trial court sentenced defendant to 5 years' imprisonment , with credit for 206 days served , but did not impose any fines as part of the sentence

. The circuit clerk issued various assessment s
. Defendant appea ls, arguing (1) the tria l court abused its discretion by admitting evidence of uncharged crimes ; and (2) the clerk of the circuit court improperly assessed fines against him. We affirm in part , vacate in part, and remand the cause with directions

. ¶ 2 I. BACKGROUND ¶ 3 In March 2012, th e State charged defendant by information with one count of aggravated battery (720 ILCS 5/12

- 3.05(a)(1) (West Supp. 2011 )) and one count of unlawful 

## FILED July 25, 2014 Carla Bender 4 th District Appellate Court, IL- 2

- restraint (720 ILCS 5/10

- 3 (West 2012))

. The charges generally alleged on March 23, 2012, defendant struck the 15

- year - old victim, C.C. ( born January 3, 1997 ) , in the face , breaking his

nose , and detained the minor victim in defendant's vehicle against his will. The matter proceeded to a jury trial in September 2012. ¶ 4 During the State's opening statement , defendant objected to any re ferenc es to his conduct at a workshop

— namely, allegations defendant took the victim and his 14

- year - old friend, Z

. C. (born May 1, 1997 ) , to a workshop in the country , placed the victim's arm in a vise , threatened to cut it off with a power saw , and threatened to kill the boys if they told anyone about the incident . The trial court found the evidence relevant to explain the boys' fear of defendant and overruled the objection. ¶ 5 At trial, the victim testified he was standing outside Z

. C. ' s apartment building when someone walked up behind him a nd gouged his eyes. He was in shock at what happened but recognized the assailant as his father's friend. The victim willingly went with defendant into his pickup truck , where defendant struck him in the nose and questioned him about breaking into his house. The victim was bleeding from his nasal injury and defendant drove the victim to defendant's house to clean up the blood. After cleaning up, defendant, defendant's girlfriend, Debra Beck, and the victim drove back to Z

. C. ' s apartment to pick up Z.C. Defendant drove
everyone back to defendant's house to drop off Beck

. He then drove the victim and Z

. C. to a workshop in the country

. ¶ 6 At the workshop , defendant placed the victim ' s arm in a vis e and told him his hand "was going to be smashed until there was nothing there." T he victim was able to free his hand from the vi se but defendant told the victim not to fight and p ut hi s forearm back into the vise. Defendant started a power saw a nd threatened to cut off the victim ' s arm. The victim was- 3

- scared and begged for his life. Defendant eventually let the victim out of the vise and drove the boys back to Z

. C.' s apartment. Defendant stated he would find and kill the boys if they "told
any one" about the incident

. When defendant dropped the boys off at Z

. C.' s apartment, the victim noticed his nose was bent "sideways." The victim and Z.C. agreed not to tell anyone , to "let it blow over" and "get it out of our life." The next day, the victi m told his mother he was in a fight with an older teenager because he was too terrified to tell her about defendant . The victim required surgery to fix his broken nose. ¶ 7 Z

. C. testified he and the victim were out side Z.C.'s apartment when defendant
g rabbed the victim and put him in a truck . Z.C. thought he heard defendant say to the victim ,

" Y ou have something of mine." He thought defendant was the victim's dad and he went in side his apartment

. When d efendant and the victim returned to Z.C.'s apartment, Z .C. noticed the victim's nose was bent sideways. Z.C. went in defendant' s truck because he thought defendant

" wanted to talk for a minute. " D efendant drove the victim, Z.C., and Beck to defendant's house to drop off Beck and retrieve a key to the worksho p. Defendant drove the boys to his workshop in the country. There, defendant put the victim's hand in a vise and said he was going to crush it.
D efendant also said he was going to put the victim's head in the vise and "crush his eyeballs out." The vict im pulled his arm out of the vise , and defendant grabbed him and said, "Do you want me to slap you?" Defenda nt put the victim's arm back in the vise, grabbed a power saw , "revv[ed] it
up , " and threatened to cut the victim's hand off. Defendant eventually let the victim go and drove the boys back to Z.C.'s apartment. Defendant threatened to kill the boys if they "were to tell anybody." Z.C. testified he was too scared to tell anyone until the police visited him. ¶ 8 T he victim's mother testified that on March 27, 2012, defendant came to her home and asked to speak with her husband . Her husband was at work , and d efendant proceeded to tell- 4

- the victim's mother that he was responsible for breaking her son' s nose . Defendant informed her he thought her son stole marijuana and wanted to teach him a lesson. He explained he put her son into his vehicle, slapped him, cleaned him , "took him out to the country to his dad's machine shed *** [and] put his hand in a vise ." Defendant offered to apol ogize and help pay the victim ' s medical bills. The victim's mother told defendant to leave her house , and she called the police to report the incident. ¶ 9 Detective Lee Rowden interviewed defendant and informed him of the allegations against him. Defendant said he knew the victim's family but " adamantly denied " the allegations. ¶ 10 Defendant called Beck to testify on his behalf. She testified she was with defendant on March 23, 2012 . They ran errands, went to her son's house for a birthday party, picked up Lev i Powers (a mutual friend), and went to defendant ' s "shed out in the country." While at the shed , defendant, Levi Powers, and Beck worked on Beck 's new car. The three left the shed at the same time , around 9:30 p.m., stopped for pizza, and returned home to watch a movie before falling asleep. Beck initially told the police defendant was working all day on March 23 and spent the night at a friend's house in Springfield. ¶ 11 Levi Powers testified a nd corr oborated Beck 's testimony that he, Beck , and defendant spent March 23 working together on Beck 's car, eating pizza, and watching a movie. ¶ 12 Following deliberations, t he jury found defendant guilty of aggravated battery and not guilty of unlawful restraint. ¶ 13 D efendant filed a post trial motion to vacate the guilty verdict and hold a new trial because evidence of uncharged crimes

— i.e. , the incident at defendant 's workshop

— should not have been introduced at trial

.- 5

- ¶ 14 I n November 2012, the trial court held a hearing o n defendant ' s post trial motion and sentencing. The court denied the motion . The State noted defendant was in his forties (born October 14, 1968) and argued for a sentence of 10 ye ars; defense counsel noted aggravated battery is a probationa b l e offense and argued for a sentence of probation or if the court imposed a prison sentence, 2 to 4 years. The court sentenced defendant to five years ' imprisonment but did not impose any fines

. The fine schedule issu ed by the circuit clerk includes, inter alia , the following assessments: (1) $5 child advocacy, (2) $15 S tate P olice operations assistance, (3) $5 drug court, (4) $2 S tate ' s A ttorney automation, (5) $100 violent crime victims assistance , and (6) $10 p robation o perations a ssistance

. ¶ 15 This appeal followed. ¶ 16 II. ANALYSIS ¶ 17 A. Admissibility of Other

- Crimes Evidence ¶ 18 Defendant asserts the trial court abused its discretion when it allowed evidence of

an uncharged crime he perpetrated shortly before threaten ing to kill the victim and a witness

. The Sta te argues the evidence is admissible because it is relevant to defendant's consciousness of guilt. We agree with the State. ¶ 19 " It is well settled under the common law that evidence of other crimes is admissible if relevant for any purpose other than to show a defendant's propensity to commit crimes. " People v. Chapman , 2012 IL 111896, ¶ 19, 965 N.E.2d 1119; see also Ill. R. Evid. 404(b) (eff. Jan. 1, 2011) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in or der to show action in conformity therewith ***. ")

. Evidence of other crimes is admissible to show motive, intent, identity, lack of mistake and modus operandi

. People v. Dabbs , 239 Ill. 2d 277, 283, 940 N.E.2d 1088 , 1093 (2010) (collecting cases).- 6

- Howev er, e ven if such evidence is offered for a permissible purpose, it " will not be admitted if its prejudicial impact substantially outweighs its probative value. " Chapman , 2012 IL 111896, ¶ 19, 965 N.E.2d 1119. ¶ 20 The admissibility of evidence rests within t he discretion of the trial court, and its decision will not be disturbed absent an abuse of that discretion. People v. Becker , 239 Ill. 2d 215, 234, 940 N.E.2d 1131 , 1142 (2010). "An abuse of discretion will be found only where the trial court's ruling i s arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court." (Internal quotation marks omitted

. ) People v. Johnson , 368 Ill. App. 3d 1146, 1155, 859 N.E.2d 290, 298

- 99 (2006). ¶ 21 In this case, evidence relating to defendant ' s conduct in the workshop ( e.g. , placing the victim's hand in a vise and threatening to cut off his arm with a power saw ) and the ensuing threat to kill the victim and a witnes s were admitted to show why the boys were afraid of defendant and did n o t report the incident

. The incident at the workshop vividly explain s why neither the victim nor Z

. C. promptly disclosed defendant's offenses to their parents or law enforcement . D efendant's threat to kill the boys w as an attempt to intimidate witnesses and avoid police detection

. S uch conduct indicates consciousness of guilt. See People v. Gambony , 402 Ill. 74, 80, 83 N.E.2d 321, 325 (1948) (an attempt to suppress evidence or obstruct an investigation is relevant as e vincing consciousness of guilt); see also People v. Jones , 82 Ill. App. 3d 386, 393, 402 N.E.2d 746, 750 (1980) (evidence of attempted intimidation of a witness shows consciousness of guilt and is thus relevant). Thus, the trial court did not err in admitting the evidence

. ¶ 22 Further, we cannot say the incident was unduly prejudicial as the evidence against defendant was overwhelming. C.C. testified defendant gouged his eyes and struck him in the- 7

- nose , causing it to bleed and bend to the side. Z. C. tes tified defendant approached C.C. , said ,

" Y ou have something o f mine , " and took him to his pickup truck. When defendant and the victim returned to Z. C. ' s apartment, Z.C. notice d the victim ' s nose was bent sideways. C.C. ' s mother testified defendant came t o her house and informed her he punch ed her son in the nose and put his hand in a vise. Defendant offered to apologize and help pay any medical bills. All three witnesses identified defendant in a photo lineup. ¶ 23 Defenda nt' s conduct at the workshop demonstrated his consciousness of guilt regarding the battery charge. No danger of unfair prejudice arose in admitting testimony about the workshop incident as the evidence against defendant was overwhelming. Thus, the trial court did not abuse it discr etion in admitting evidence about defendant ' s conduct at the workshop

. ¶ 24 B. Fines ¶ 25 D efendant argues this court must vacate fines imposed by the circuit clerk, as the clerk lacked authority to impose the fines

. Further, defendant asserts, should the trial court impose fines on remand, he should receive a $5 per diem credit against those fin es (725 ILCS 5/110

- 14 (West 2012 )). The State concedes fines must be imposed judicially and defendant's case should be remanded for judicial imposition of mandatory fine s, subject to available incarceration credit against creditable fines . Finally, the parties dispute whether the probation operations assistance assessment is a fine or fee. 705 ILCS 105/27.3a(1.1) (West 2012) (added by Pub . Act 97

- 761 ( eff. July 6, 2012) )

. ¶ 26 1. Assessments Imposed by the Circuit Clerk ¶ 27 Defendant argues the clerk of the Sangamon County circuit court improperly imposed fines. The State agrees the clerk cannot impose fines but requests these and additional mandatory fines be reimposed. We a ccept the State's concession in part

.- 8

- ¶ 28 "This court has consistently held the circuit clerk does not have the power to impose fines." People v. Montag , 2014 IL App (4th) 120993, ¶ 37 , 5 N.E.3d 246

. Fines imposed by th e clerks of the circuit courts " flagrantly run contrary to the law, and we trust this unauthorized practice will end without the necessity of this court issuing rules to show cause. " People v. Williams , 2013 IL App (4th) 120313, ¶ 16 , 991 N.E.2d 914

. ¶ 29 In this case, t he record before us a ffords no indication the trial court imposed any fines orally at sentencing, in its docket entry, by the written sentencing judgment entered November 20, 2012 , or by supplemental sentencing judgment. However, the fine schedule issued by the circuit clerk shows the following assessments: $5 for child advocacy (55 ILCS 5/5

- 1101(f

- 5 ) (West 2012)), $15 for S tate P olice operations assistance (705 ILCS 105/27.3a(1), (1.5), (5) (West 2012) (added by Pub

. Act 97

- 761 ( eff. July 6, 2012) ) ), $5 for drug court (55
ILC S 5/5

- 1101(f) (West 2012)), $2 State's Attorney automation fee (55 ILCS 5/4

- 2002(a) (West 2012) (amended by Pub. Act 97

- 673, § 5 (eff. June 1, 2012) )), and $100 for violent crime victims assistance (725 ILCS 240/10(b) (West 2012)). We accept the State's concession t he circuit clerk is without authority to impose the following mandatory fines : $5 child advocacy, $5 drug court, and $100 violent crime victims assistance. People v. Chester , 2014 IL App (4th) 120564, ¶ 32, 5 N.E.3d 227

. Accordingly , we vaca te these assessments and remand the cause for the trial judge to impose these fines. Montag , 2014 IL App (4th) 120993, ¶ 37, 5 N.E.3d 246. ¶ 30 However, we do not accept the State's concession regarding the $2 State's Attorney automation fee (55 ILCS 5/4

- 2002( a) (West 2012) (amended by Pub. Act 97

- 673, § 5 (eff. June 1, 2012) ))

. The assessment is a fee because it " is intended to reimburse the State's Attorneys for their expenses related to a utomated record

- keeping systems ." People v. Warren , 2014 IL App (4th) 120721 , ¶ 108 . Thus, the circuit clerk may properly impose the $2 State's- 9

- Attorney assessment even though it became law after defendant committed the offenses charged in this case. People v. Dalton , 406 Ill. App. 3d 158, 163, 941 N.E.2d 428, 434 (2010) (" The prohibition against ex post facto laws applies only to laws that are punitive. It does not apply to fees, which are compensatory instead of punitive. " ). ¶ 31 Additionally, a lthough the State correctly concedes the circuit clerk is without authority to impose the $ 15 S tate P olice operations assistance assessment , we note the
assessment took effect on July 6, 2012, after the date of defendant's offense. " The imposition of a fine that doe s not become effective until after a defendant commits an offense violates ex post facto principles. " People v. Devine , 2012 IL App (4th) 101028, ¶ 10, 976 N.E.2d 624

. Accordingly, we vacate the $15 S tate P olice operations assistance assessment

. ¶ 32 2. Pr obation Operations Assistance ¶ 33 The parties dispute whether the probation operations assistance assessment is a fine or fee (705 ILCS 105/27.3a(1.1) (West 2012) (added by Pub

. Act 97

- 761 ( eff. July 6,
2012 ) ) ). Defendant argues it is a fine given its puniti ve nature and automatic appl ication in

" felony, traffic, misdemeanor, local ordinance, or conservation case [s] upon a judgment of guilty or grant of supervision ." 705 ILCS 105/27.3a(1.1) (West 2012) (added by Pub

. Act 97

- 761 ( eff. July 6, 2012 ) ). If it is characterized as a fine, it cannot be assessed against defendant as his offense was committed prior to the effective date of the statute creating this assessment. Devine , 2012 IL App (4th) 101028, ¶ 10, 976 N.E.2d 624

. In response, the State arg ues the probation assessment is compensatory in nature because the $10 charge is to reimburse the State for costs incurred

— namely, the presentence investigation conducted by the probation office

— as a result of defendant's prosecution

.- 10

- ¶ 34 Because the impositio n of fines and fees raises a question of statutory interpretation, we review the imposition of the probation operations assistance assessment de

novo . See People v. Price , 375 Ill. App. 3d 684, 697, 873 N.E.2d 453, 465 (2007). ¶ 35 The supreme court has recogn ized, despite their label as fees, certain assessments imposed pursuant to a conviction are fines. People v. Graves , 235 Ill. 2d 244, 250, 919 N.E.2d 906, 909

- 10 (2009); People v. Jones , 223 Ill. 2d 569, 599

- 600, 861 N.E.2d 967, 985

- 86 (2006).
T he nature of an assessment determines whether the assessment constitutes a fine or a fee. Fines

are " ' pecuniary punishment[s] imposed as part of a sentence on a person con victed of a criminal offense. ' " Id. at 581, 861 N.E.2d at 975 (quoting People v. White , 333 Ill. App. 3d 777, 781, 776 N.E.2d 836, 839 (2002))

. Conversely, fees do not " ' punish a defendant in additio n to the sentence he received ' " ; rather, a fee is " ' a collateral consequence of the defendant's conviction ' " that reimburses the Stat e for an expense related to the defendant's prosecution. Id

. T he primary inq uiry is whether the assessment " seek[s] to compensate the [S]tate for any costs incurred as the resul t of prosecuting the defendant." Id. at 600, 861 N.E.2d at 986. If the asse ssment is compensatory in nature, it constitutes a fee. Therefore, even if the statutory langua ge labels an
assessment as a "fee," the assessment still operates as a fine if it fails to reimburse the State for actual costs incurred in prosecuting the defe ndant. See Graves , 235 Ill. 2d at 25 4

- 55 , 919 N.E.2d
at 912

. ¶ 36 At issue in this case is whether the probation operations assistance assessment is a fine or fee. Section 27.3a(1.1) of the Clerks of Courts Act, in relevant part, provides that the clerk of "any county that imposes a fee pursuant to subsection 1 of this Section shall also charge and collect an additional $10 operations fee for probation and court services department operations." 705 ILCS 105/27.3a(1.1) (West 2012) (added b y Pub. Act 97

- 761 ( eff. July 6,- 11

- 2012) )

. Th e fee " shall be paid by the defendant in any felony, traffic, misdemeanor, local ordinance, or conservation case upon a judgment of guilty or grant of supervision ." 705 ILCS 105/27.3a(1.1) (West 2012) (added by P ub. Act 97

- 761 ( eff. July 6, 2012) )

. ¶ 37 In this case, defendant was eligible for (and requested) probation as his sentence and the trial court ordered the probation office to conduct a presentence investigation and prepare a report of its findings to aid the trial court during sentencing. T he charge imposed here is compensatory in nature because it reimburses the S tate for costs incurred as the result of prosecuting the defendant. Jones , 223 Ill. 2d at 600, 861 N.E.2d at 986 (the "most important fact" is whe ther the asses sment seeks "to compensate the [ S ] tate for any costs incurred as the result of prosecuting the defendant"); s ee also People v. White , 333 Ill. App. 3d 777, 782, 776 N.E.2d 836, 840 (2002) ( holding probation fee s to be compensatory in nature); People v. Despenza , 318 Ill. App. 3d 1155, 1157, 744 N.E.2d 912, 914 (2001) (finding probation fee s we re not a fine where they were not impos ed as a pecuniary punishment). ¶ 38 Indeed, the compensatory nature of the assessment will chan ge in cases where the probation office is not involved in a defendant ' s prosecution. In these cases, the probation assessment constitutes a fine because it is unrelated to costs incurred by the State as a result of a prosecution. See, e.g. , People v. Una nder , 404 Ill. App. 3d 884, 886, 936 N.E.2d 795 , 797 (2010) (drug court fees are fines where the record fails to show the fee was intended to reimburse the State for prosecuting the defendant); People v. Sulton , 395 Ill. App. 3d 186, 192, 916 N.E.2d 642, 647 (2009) ( $10 drug

- court assessment was a fine because defendant was not prosecuted in the county's drug or mental

- health court system and the assessment did not apply to the prosecution of his case )

. We reco gnize "[t] he trial courts must now address in each criminal case whether each of the myriad of fees and fines is a fee or a fine as to each defendant depending on- 12

- the conviction, the sentence, and the penalty. " Id. at 191, 916 N.E.2d at 646 . This sentenc ing dilemma places an enormous burden on the trial courts and p erhaps the legislature will see fit to correct this confusion. Id

. ¶ 39 In sum, the probation assessment in this case is a fee that is not subject to an ex post facto violation and we leave intact the $10 fee for probation and court services department operations. People v. Bishop , 354 Ill. App. 3d 549, 562, 821 N.E.2d 677, 690 (2004). ¶ 40 3. Remand Directions and Sentence Assessment Credi t ¶ 41 On remand, the trial court sho uld reimpose the following mandatory fines: $5 for child advocacy (55 ILCS 5/5

- 1101(f

- 5 ) (West 2012)) , $5 for drug court (55 ILCS 5/5

- 1101(f) (West 2012)), $10 for county jail medical (730 ILCS 125/17 (West 2012)), $30 to fund expungement of juvenile reco rds (730 ILCS 5/5

- 9

- 1.17 (West 2010)), $8 for violent crime victims assistance (725 ILCS 240/10(b) (West 2012) ($4 for $40 of fine imposed, or fraction thereof, in effect prior to the amendment by Pub lic Act 97

- 816, § 10 ( eff. July 16, 2012 ) )), and $20 for the criminal surcharge fine (730 ILCS 5/5

- 9

- 1(c) (West 2012) ($10 for $40 of fine imposed, or fraction thereof)). W e leave intact the $2 State's Attorney automation fee (55 ILCS 5/4

- 2002(a) (West 2012) (amended by Pub. Act 97

- 673, § 5 (eff. June 1, 2012) )) and $10 fee for probation and court services department operations (705 ILCS 105/27.3a(1.1) (West 2012) (added by Pub

. Act 97

- 761 (eff. July 6, 2012))). W e vacate the $15 S tate P olice operations assistance assessment (705 ILCS 105/27.3a(1), 27.3a(1.5), 27.3a(5) (West 2012) (added by Pub

. Act 97

- 761 (eff. July 6, 2012))). ¶ 42 D efendant requests c redit under section 110

- 14(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110

- 14(a) (West 2012) ) against his fines

. Section 110

- 14(a) of the Code ( 725 ILCS 5/110

- 14(a) (West 201 2) ) provides, in pertinent part, as follows:- 13

- "Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant." Defendant received 206 days of credit for time served. Thus, defendant has up to $1,030 in credit available against creditable fines. ¶ 43 T he $8 violent crime victims assistance fine (725 ILCS 240/10(b) (W est 2012)), $20 criminal surcharge fine (730 ILCS 5/5

- 9

- 1(c) (West 2012)), and $10 county jail medical fine (730 ILCS 125/17 (West 2012)) are not eligible for monetary credit . We remand for the trial court to calculate and impose the mandatory fines and a pply the mone tary credit to eligible fines. ¶ 44 III. CONCLUSION ¶ 45 For the reasons stated, we affirm defendant's conviction for aggravated battery and vacate the mandatory fines imposed by the clerk of the Sangamon County circuit court. We remand with direction s that the trial court (1) reimpose the mandatory fines in this case , (2) direct the circuit clerk to apply defendant's statutory credit against creditable fines, and (3) issue an amended sentencing judgment consistent with this o pinion

. We further direct the trial court to provide a copy of this o pinion to the circuit clerk so he has specific notice of our rulings herein. As part of our judgment, we award the State its $50 statutory assessment against defendant for
costs of this appeal. 55 ILCS 5/4

- 2002(a) (West 201 2 )

. ¶ 46 Affirmed in part and vacated in part; cause remanded with directions.