## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Costa , 2013 IL App (1st) 090833

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J OSEPH COSTA, Defenda nt-Appellant.

District & N o. First District, F ifth Division Docke t No. 1-09-0833

Filed Rehea ringdenied September 27, 2013

November

5, 2013

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt 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

. ) Def endant’ s convictions for two counts of violation of bail bond wer e

reve rsed and the assessed fines and fee s wer e vacated, since defe ndant

was in custody during the last 3 day s of the 30-day surre nder period, and pursuant to Ratliff

, the State could not pr ove beyond a rea sonable doubt that his failure to surr ender within the 30-day

period wa s willful.

Dec ision Under Review App ea l fr o m the Circuit Court of Cook County
, Nos. 07-CR-1772, 07- CR-1773; the Hon. Wi lliam G. L acy , J udg e, pre siding.

J udg ment Reverse d as to indictments numbers 07 CR 1772 and 07 CR 1773 only ;

enumer ated f

ees a nd fines vac ated.Counsel on

Appea l Michae l J

. Pell et i er , Alan D. Goldberg
, and Kristen E. Mueller, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Carol L

. Gaines, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE PAL MER delivered the judgme nt of the cour t, with opinion. Presiding J ustice McB ride and J ustice Taylor concur red in the judgme nt and opinion.

OP INION

¶ 1 Following a ju ry trial, defe ndant J oseph Costa was found guilty and sentenc ed on two counts of violation of bail bond (720 I L CS 5/32-10 (a ) (W es t 2006)). Def endant appea ls,
arguing that (1) the State failed to pr ove him guilty beyond a rea sonable doubt, (2) the trial
court incorre ctly instructed the jury and (3) sever al of the fines and fee s assessed by the court

wer e not authorized by statute and shoul d be vacated. We reve rse defenda nt’s convictions for violation of bail bond and vacate the court’s assessment of the challeng ed fee s and fines.

¶ 2 BA CKGROUND ¶ 3 In May 2006, the State char g ed defe ndant with ag g ravated battery of a peac e office r and violation o f an o rd er of protec tion obtained by his then-wife Pamela Tilton. By separ ate indictment, it char g ed defenda nt with two counts of aggrava ted s talking of Tilton and two additional co u n t s of violation of an order of protec tion obtained by Tilton. The court consolidated the c ases. ¶ 4 Def

endant posted $1 milli on bond and was rele ased. Under the conditions of def endant’ s bond, he wa s require d to a ppear in court until a final orde r issued in the pendingcase s and could not leave the s tate without leave of co u rt

. I f h e failed to appea r, he could be tried i n absentia a nd char g ed with bail jumping a nd he would for feit his bail. ¶ 5 On November 15, 2006, defe ndant failed to appea r in court for a status hearing. The c ourt issued bond forf

eiture w arr ants. ¶ 6 On Dec ember 12, 2006, United States Marsha ls arr ested defe ndant in Hawa ii. He a g ree d
to extradition to I llinois and was brought into court in Cook County on Dec ember 22, 2006. The c ourt enter ed judg ment on the bond forf eiture w arr ants on Dec ember 18, 2006. ¶ 7 The State char g ed defe ndant in two separ ate one-c ount indictments with felony violation of bail bond under section 32-10(a ) of the Crimi n al C o d e o f 1 961 (the Code) (720 I L CS

-2-5/32-10(a) (West 2006)). The se indictments are numbere d 07 CR 1772 and 07 CR 1773. 1

¶ 8 Def

endant moved to dismiss the section 32-10( a) f elony violation of bail bond char g es and re instate his bond. Section 32-10(a) provides in re levant par t: “Whoever
, having been ad m i t t ed to bail for appea ranc e befor e any court of this State, in cu rs a forf

eiture of the bail and willfully fails to surre nder himself within 30 day s following the date of such forf eiture, commits, if the bail was g iven in c onnection with

a char g e of felony *** a felony of the next lower Class ***.” 720 I L CS 5/32-10(a) (West 2006). ¶ 9 Def

endant argued that he had not committed an offe nse under section 32-10(a ) beca use he had willfully surre n d er ed t o the United States Marsha ls in Hawa ii and agree d to extradition to I llinois befor e the 30-day “tolling period” ex pired. The State responde d that being arr ested in another s t at e d i d n ot constitute a willful surre nder as contemplated by section 32-10(a ) and, moreove r, the question of whether or not the defe ndant committed the offe nse as char g ed was for the trier of fac t to deter mine. The court denied defe ndant’s motion
to di s m i s s o n t h e basis that he had failed to cite authority supporting the proposition that beingarr ested within 30 day s preve nts procee dings unde r the ba il bond statute. ¶ 10 Trial beg an on September 2, 2008. In rele vant part, Detec tive Sherlock testified that he

was a Chicag o police detec tive working with the United States Marsha l’s fug itive task forc e. He testified that he rece ived a reque st from Assis tant State’s Att orney Nina R icci to assist in loc ating defe ndant. On Dec ember 10, 2006, he lear ned that the investigation ha d moved to Hawa ii. ¶ 11 United States Deputy Marsha l Glen Fe rre ira testified that he worke d in the United States Marsha l’s office in Hawa ii. He testified that, on Dec ember 12, 2006, he went to an addre ss in Honolulu where he confirme d defe ndant was staying. When de fenda nt e ventually drove
up, United States dep u t i es i d entified themselves and informed defe ndant that they had a

war rant for his arr est. Deputy Fe rre ira testified t h at d efendant said he knew they wer e looking for him, c ooperated with the deputies and did not resist arr est. The deputies turned defe ndant over

to the Honolulu police depa rtment. ¶ 12 Def

endant testified tha

t he went to Hawa ii beca

use his attorney had g iven him permission to le ave I llinois . He state d he had g one to H awa ii a nd intended to r eturn to Chica g o for his November 15, 2006, court d at e b u t d i d n ot return for the court date beca use he was afra id that Tilton’s bodyguards wer e “out of control.” Def endant stated that he had understood that h e h ad t o come back to I llinois in Dec ember to avoid being charg ed with violation o f b ai l bond and that he had intended to return to I llinois befor e the 30-day grac e period was over. ¶ 13 The pa

rties agree d to submitthe followingI llinois pattern instruc tions to t he jury :

T he Sta te al so cha rged def end ant wit h two cou nts of har ass ing a wit nes s, two c o u n t s o f 1

comm uni cat ing wit h a wit nes s, one cou nt of aggra vated fa ls e per son at ion of a pea ce off ic er and two

cou nts of viola ti on of an ord er of pro te ct ion unde r ind ic tments numbers 07 CR 177 1 a n d 0 7 CR 1986 4. T he court j oin ed the fou r ind ic tments

. Only the two fe lon y viola ti on of b a i l bond cou nts unde r ind ic tments numbers 07 CR 1772 and 07 CR 1773 and t h e fe es and fi nes ass ess ed unde r ind ic tment n um

ber07 CR 1 771 ar e a t i ssu e he re

.
-3-“A person commits the offe nse of violation of bail bond when he has been admitted
to bail for appea

ranc e befor e a court in this State, and incurs a forf eiture of the bail, and willfully fails t o surre nder himself within 30 day s following the forfeiture of the bail.” I llinois Pattern Jury

Instructions, Criminal, No. 22.53 (4th ed. 2000).
“To sustain the char g e of violation of bail bond, the State must prove the following propositions:
First Proposition : That the defe ndant has been admitted to bail for appea ranc e befor e

a cour t in this State [i n case numbers 06CR-12793 and 06CR-12794]; and Second Proposition : That the bail [i n case numbers 06CR-12793 and 06CR-12794] was for feited; a

nd Third Proposition : That the defe ndant wilfully failed to surre nder himself within 30 day s following the forf

eiture of the bail.
I f you find from you r co nsideration of all the evidenc e that eac h one of these propositions has been proved beyond a rea sonable doubt, you should find the defe ndant
guilty

. I f you find from your consideration of all the evi d ence that any one of these propositions has not been proved beyond a rea sonable doubt, y o u should find the defe ndant not guilty .” I llinois Pattern J ury Instructions, Crimi n al
, No. 22.54 (4th ed. 2000). ¶ 14 The court denied defe ndant’s reque st for a jury instruction on the meaning of the sec tion 32-10 phrase “willfully fail to surre nder” as established by the I lli n o i s S up re me Court in People v. Ratliff

, 65 I ll. 2d 314 (1976). It also denied defe ndant’s reque st for an instruction
t h at t he bond statute acc rued 30 day s afte r the date of bond forf eiture and, there fo re , a “willful failure to surre nder” could not be shown if the defe ndant was a pprehe nded bef

ore the statutory

period e nded and “ prior to the expiration of the 30 day s, there is no c rime.” ¶ 15 Duringjury

delibera tions, the jury

sent out a note a sking;
“I f the defe ndant is arr ested within 30 day s of bail forf eiture, has he ‘willfully failed’ to surrende r himself for

purposes of pr oving a

char g e of violation of ba il bond?
I s impossibi lity of surre ndering yourself a valid defe nse to the char g e of violation of bail bond[? ] What is the spirit of the law? ( i.e.
, I f you’re arr ested befor e 30 day s are up, have you

surre ndere d your right to the remainingday s? )” ¶ 16 Both parties initially agree d that the proper response was to tell the j ury t o continue to deliberate. Over defe nse counsel’s objection, citing People v. Brautigan
, 79 I ll. App. 3d 595 (1979), the c ourt then sent the jury the followingnote: “I f the defe ndant does not appea r and surre nder to the co u

rt having jurisdiction within 30 day s from the date of forf eiture or within such period satisfy the court that appea ranc e and surre nder by the acc used is impossibl e and without his fault the Court should enter judgme nt for the State.
A defe ndant’s absenc e from a criminal proce eding cause d by imprisonmen t i n a fore ign State is not ‘without fa ult.’

-4-Please c ontinue to deliberate.”

Fifte en minutes afte r rec eiving the note, the jury returne d a verdic t finding defe ndant guilty on all char g es. The c ourt denied de fenda nt’s posttrial motion. ¶ 17 On Marc h 6, 2009, the court sentenc ed defe ndant to two concur rent three -year terms for violation of bail bond. It assessed defe ndant a $5 court sy stem fee
, $25 court supervision fee
, $20 serious traff

ic violation f

ee, $200 domestic violence fine and $20 violation of an order of protec tion fine. Def

endant f iled a timely

notice of a

ppeal on Ma

rch 17, 2009.

¶ 18 ANALYSI S ¶ 19 1. Reasonable Doubt ¶ 20 Def

endant argues t hat hi s conviction for violation of bail bond p u rs u ant t o section 32- 10(a) of the Code should be reve rsed beca use the State failed to prove beyond a rea sonable doubt that defe ndant willfully failed to surre nder himself within 30 day s following the date of the forf

eitu re of bail bond as require d for the offe nse. Section 32-10(a ) provides in rele vant par

t: “Whoever
, having been admitted to bail for appea ranc e befor e an y co urt of this State, incurs a forf

eiture of the bail and willfully fails to s u rr en d er himself within 30 day s following the date of such forf eiture, commits, if the bail was g iven in c onnection with

a char g e of felony *** a felony of the next lower Class ***.” 720 I L CS 5/32-10(a) (West 2006).
To sustain a conviction for violation of a bail bond under the statute, the S tate mus t prove beyond a rea sonable doubt that the defe ndant (1) forf eited bail and (2) fail ed to surre nder within 30 day s afte r the bail was forf eited, and (3) his failure to surre nder was willful. People v. Albarran , 40 I ll. App. 3d 344, 346 (1976). ¶ 21 Def

endant does not contest that he forf eited his bail bond when he failed t o ap p ea r i n court on November 15, 2006, or that he failed to surre nder within 30 day s afte r the bail was forf eited. Instead, he argues that the State failed to prove that his failure to s u rr en der was willful. Citi ng People v. Ratliff
, 65 I ll. 2d 314 (1976), defe ndant contends that his failure to

surre nder could not be will ful beca use he had been arrested by the United States Marshals and place d into custody on Dec ember 12, 2006, 3 day s prior to the expiration of the 30-day
g rac e per iod. We ag ree that defe ndant’s fa ilure to surre nder c ould not be willful. ¶ 22 “F or the purpose of this statute[,] an act is perf ormed wi l l fu l l y wh en i t is perfor med kn owing ly .” People v. Lynn
, 89 I ll. App. 3d 712, 714 (1980). An innocent or excus ab l e failure to surre nder is not punishable. Lynn
, 89 I ll. App. 3d at 714. “An inability to be in the
court beca

use a defe ndant is in custody elsewhe re is an example of excusable failure .” Lynn
, 89 I ll. App. 3d at 714 (citing Ratliff , 65 I ll. 2d at 319-20). ¶ 23 There are few case s in I llinois addre ssing the question of whe ther a defe ndant’s fa ilure
to surre nder within the statutory 30-day surre nder period can be deeme d willful under section 32-10(a ) where the defe ndant i s unable to appear in court within the 30 day s beca use he is incar cer ated. Howeve r, our supreme court addre ssed the question in Ratliff
, holding that “[i] f

a person is incar cer ated and unable to appea r in court, his failure to appea r cannot be deeme d

-5-‘willful’ within the meaning of section 32-10.” Ratliff
, 65 I ll. 2d at 319. Ratliff rema ins the only supreme court decision on this issue and is binding on all lower courts. People v. Artis
, 232 I ll. 2d 156, 164 (2009). ¶ 24 In Ratliff

, the def en d ant was orig inally char g ed with theft and rele ased on bail. When defe ndant failed to appea r in court, the trial court ordere d his bond be forfeited and issued

a war rant for his a

rre st. D efe ndant failed to sur rende r within 30 day s of the bond forf eiture and the State char g ed him with violation of bail bond. During a bench t rial on this char g e, testimony from the defe ndant and his fathe r established that defe ndant was unable to appea r

on his court date beca

use he was incar cer ated for another offe nse at the time. Ratliff
, 65 I ll. 2d at 316. During the 30-day surre nder period, the defe ndant had been incar cer ated, then fre e for 9 day s and then incar cer ated ag ain. The defe ndant testified that he had spoken to a leg al aid attorney about his pending court date. He stated the attorney had told him that she would have the case continued and would let him know the date of his next court appear ance but she had failed to do so. Ratliff
, 65 I ll. 2d at 316-17. The trial court found the defe ndant guilty of violation of bail bond. The appellate court reve rsed, finding the State failed to prove d efe ndant guilty beyond a rea sonable doubt of willfully failing to appea r in court wh en require d to do so. Ratliff

, 65 I ll. 2d at 317. ¶ 25 Our supreme court a ffirme d, agree ing that the defe ndant was not prove d guilty beyond

a rea sonable doubt. Ratliff
, 65 I ll. 2d at 320. The court found that the testimony of defe ndant and his fathe r t en d ed to establish that the defe ndant’s failure to appea r was not willful. Ratliff
, 65 I ll. 2d at 319. It held that, “[i] f a person is incar ce ra t ed and unable to appea r in court, his failure to appea

r cannot be deeme d ‘willful’ within the meaning of section 32-10.” Ratliff
, 65 I ll. 2d at 319. The court found that the fac t that the defe ndant had been fre e for 9 day s during the 30-day surre nder period did not indicate that he would not have surre ndere d himself to the court within the re quisite 30 day s. Ratliff , 65 I ll. 2d at 320. ¶ 26 We a

re bound by our supreme court’s decision in Ratliff

. Howeve r, other jurisdictions’ decisions reg arding the eff ect of incar cer ation on the 30-day surre nd er period in a bail jumping statute, althoug h not binding, are instructive. For example, in People v. Bayless
, 390 N.Y.S.2d 983 (N.Y. Co. Ct. 1977), the court held that “bail jumping is inch o at e until the expiration of [30] day s” and “the crime of bail jumping is not complete until thirty day s have expired afte r failure to appea r, a fortiori one cannot be guilty of bail jumping when that [30- day] period is aborted by

an ar rest on such a

char g e.” Bayless , 390 N.Y.S.2d at 986-87. ¶ 27 S i m i l ar l y , i n People v. Shurn
, 418 N.Y.S.2d 442 (N.Y. App. Div. 1979), aff’d , 40 9 N.E.2d 923 (N.Y. 1980), the court held that the crime of bail jumping is not complete until 30 day s have expired afte r a defe ndant’s failure to appea r and, beca

use the Shurn defe ndant

was arre sted prior to the ex piration of t he 30-day g rac e period, the i ndictment ag ains t h i m should be dismissed. Shurn , 418 N.Y.S.2d at 443. ¶ 28 In the same vein, the court in Harcum v. State
, 710 A.2d 358 (Md. Ct. Spec. App. 1998), held that “whe n there is a rec apture or a surre nder within the thirty -day period, there cannot be a willful failure to surre nder within thirty day s since what is prohibited under the statute, i.e., willful failure to surre nder oneself, must occur afte r t h e t h i rt y day s have elapse d.” Harcum
, 710 A.2d at 362. “[T] he only logic al rea ding of the statute is that a deter mination

-6-whether the appellant has willfully failed to surre nder himself is premised on his rema ining

at larg e af ter the thirty -day

g rac e period has elapse d.” Harcum , 710 A.2d at 362. ¶ 29 Following Ratliff
, we find defe ndant’s failure to surre nder within the statutory 30 day s, by Dec ember 15, 2006, cannot be deeme d willful. As was the defe ndant in Ratliff
, defe ndant here was in custody at t he ex piration of t he 30-day surre nder period. He had been arrested i n Hawa ii on Dec ember 12, 2006, the twenty -seve nth day of the surre nder perio d

. He

rema ined in the custody

of the Honolulu police de partment until after Dec ember 15, 2006, the thirtieth day of the surre nder period. Def endant’ s incar cer ation meant that he was unable
to surre nder during the last 3 day s of t he 3 0 -d ay surre nder period. C onsequently
, pursuant to Ratliff
, his failure to surre nder during the statutory period cannot be deeme d willful. Ratliff , 65 I ll. 2d at 319-20. ¶ 30 The State argues that defe ndant should not be able to argue that his arr est 3 day s befor e t h e 3 0-day time period expired prec ludes his conviction for violating bail bond beca use i t “ef fec tively turns the statute into both a shield for defe ndant to hide behind, and a sword for defe ndant to use as a wea

pon to excuse his flagrantly willful misconduct.” It asser ts that, as

a fug itive, defe ndant should not be rew arde d under the law for violating the conditions of his bail bond by being in H awa ii, with no intention of returning to I llinois
, when he is a rre sted and re turned to I llinois more than 30 da y s after his bond forfe iture. ¶ 31 This argument ignor es the simple fac t that it is the State’s burden to prove eac h element of the offe nse, including in this case , d ef endant’ s willful failure to surre nder, beyond a

rea sonable doubt. Whether, at the time of his arr est, defe ndant intended to surre nder during the 30 day s is immaterial. The fac t rema ins that h e wa s i n custody of the Honolulu police depar tment for the last 3 day s of t he 30-da y surre nder pe riod and wa s, theref ore, una ble to

surre nder during that 3-day period. To para phrase our supreme court in Ratliff
, the fac t that defe ndant was fre e for 27 day s of the 30-day surre nder period does not indicate that he would
not have surrende red himself to the c ourt within the remaining 3 day s. Ratliff
, 65 I ll. 2d at 320 (the fac t that the defe ndant was fre e for 9 of the 30 day s did not indicate that he would
not have surre ndere d himself to the court within the 30 day s). Def endant testified that he had intended to sur

rende r within the 30-day period. Fur ther, even if, on the twenty-seve nth da y of the surre nder period, defe ndant had no t i n t en d ed to timely surre nder, his arr est and incar cer ation three d ay s b ef o re the expiration of the surre nder period denied him the opportunity

to chang e his mind. ¶ 32 The State cites to People v. Albarran
, 40 I ll. App. 3d 344 (1976), in which the court held that t h e d efe ndant’s failure to surre nder himself was willful wher e he failed to appea r in court, failed t o come to the court the following day and did not make any further inquiries into his case

. Albarran
, 40 I ll. App. 3d at 347. Albarran is distinguishable. In Albarran
, the defe ndant was fre e and “ ‘out in the streets’ ” for the entire 30-day surre nder period and well able to surre nder. Albarran
, 40 I ll. App. 3d at 345. Her e, in contra st, defe ndant was neither fre e nor “in the streets” for the en t i re period. Instead, defe ndant was in the custody of the Honolulu police depar

tment for the last 3 day s of the surre nder period and, there fore
, unable to willfully

surre nder during that 30-day period. ¶ 33 We a

re bound by our supreme court’s decision in Ratliff

. Acc ording ly
, since defe ndant

-7-was arr ested within the 30-day s t at utory period and incar cer ated when the 30-day period

expired, the State cannot and did not prove beyond a rea sonable doubt that his failure to

surre nder within the 30 day s was willful. There fore
, we reve rse defe ndant’s two convictions for violation of ba il bond under sec tion 32-10(a)

.

¶ 34 2. J ury Instructions ¶ 35 Def

endant arg

ues that the court err ed in (a) denying his reque st for sup p l emental jury instructions based on Ratliff and (b) responding to the jury ’s note with an instruction that “[a] defe ndant’s absenc e fr om a cr iminal pr ocee ding cause d by imprisonment in a fore ign state is not ‘without fault,’ ” a statement contra ry to the Ratliff holding. Given our deter mination that defe ndant’s convictions for violation of bail bond shoul d b e re v erse d, we need not addre ss his arguments reg arding the jury instructions.

¶ 36 3. Fines a nd Fe es ¶ 37 Following defe ndant’s convic t i o n s on all char g es, the court imposed various fee s and fines under

indictment number 07 CR 1771, including the f ollowing:

- $5 court sy stem fee under section 5-1101 of the Counties Code (5 5 I L CS 5/5- 1101(a) (West 2010)) (imposed f or a violation of the I llinois Vehicle Code);

- $25 court supervision fee under section 16-104c of the I llinois Vehicle Code (625 I L CS 5/16-104c (West 2010)) (imposed upon rec eipt o f a dispositi on of court supervision);

- $20 serious traff

ic violation fee under section 16-104d of the I llinois Vehicle Code (625 I L CS 5/16-1 0 4 d (W es t 2010)) (imposed for a violation of the I llinois Vehicle Code);

- $ 2 00 domestic violence fine under section 5-9-1.5 of the Unified Cod e o f Correc tions (730 I L CS 5/5-9-1.5 (West 2010)) (imposed for a violation o f an y of a my riad of enumer ated offense s wher e the offe nder and victim are famil y or household members) ; and

- $20 violation of an order of protec tion fine under section 5-9-1.11( a) of the Unified Code of Correc tions (735 I L CS 5/5-9-1.11( a) (West 2010) ) (imposed for a violation of

an order of protec tion wher e the offe nder and victim are family or household members)

. ¶ 38 Def

endant argues that the court err ed in imposing the fee s beca use he neither violated the Vehicle Code nor rec eived a dispositi on of court supervision. He also argues the court err ed in imposing the fines beca use h e wa s n ot convicted of the predic ate offe nses. The State
agree s that the enumer ated f ees a nd fines should not have been impos ed. The rec ord bears this out. Acc ording ly
, we vacate the $5 court sy stem fee
, the $25 court supervision fee
, the $20 serious traff

ic violation fee
, the $200 domestic violence fine and the $20 violation of an order of protec tion fine.

-8-¶ 39 CONCLUSI ON

¶ 40 For the rea sons stated above, we reve rse d ef en d an t ’s co n v i ctions and sentenc e for violation of bail bond under indictments numbers 07 CR 1772 and 07 CR 1773 only

. We also

vacate the follow i n g fe es and fines imposed on indictment number 07 CR 1771: $5 court sy s t em fe e, $25 court supervision fee
, $20 serious traff ic violation fee
, $200 domestic violence f ine and $20 violation of a n order of protec tion fine.

¶ 41 Reverse d as to indictments numbers 07 CR 1772 and 07 CR 1773 only ; enumer ated fee s and fine s vacated.

-9-