No. 3-08-0664

______________________________________________________________________________ Filed June 22, 2010 IN THE AP PE LLATE COU RT OF ILLIN OIS THIR D DI STRICT A.D., 2010

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of the 14 th Judicial Cir cuit ) Whiteside C ounty , Illi nois , Plaintiff-Appellee, ) ) No. 07-CF-65 v. ) ) BRIAN C. ANDERSON, ) The Honorable ) Stanley

B. Steine s, Defend ant-App ellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE McDADE d

elivere d the opini on of the c ourt:

______________________________________________________________________________ Defendant, Brian C. Anderson, pled g uilty to two counts of agg ravated criminal sexual abuse. On appeal, defendant challeng es both his term of mandatory supe rvised release and the amount of fines imposed. We vacate in part, reverse in par t, affirm in part and remand for further procee dings. FACTS Defendant was charge d by information with two counts of ag gravated criminal sexual abuse. T he infor mation all eged that defe

ndant com

mitted two a

cts of se xual penet

ration wi th K.A., a minor who was at least 13 y ears old when the offense occurr ed on or about May

29, 2006. In particular, count I alleged that defendant, who was a t least five yea

rs older than K.A.,2

placed his penis in the mouth of K.A. Count II alleged that defendant placed his mouth on the penis of K.A. On Febr uary 28, 2008, d

efenda nt appea red in co urt with c ounsel an

d tender ed a par tially negotiated guilty

plea. The terms of the plea agre ement provided that defendant would plead guilty to both counts of aggravated criminal sexual abuse in exchange for the State’s agreement to recommend no more than concurrent, five-y ear terms of imprisonment. In addition, the par ties indicated that they we

re not in agreement concer ning the proper term of mandatory supervised release (MSR) that defendant would have to serve if the court imposed a term of imprisonment. Counsel for defen

dant indic ated tha

t he was a ware of the Depa rtment of Correct ions’s (D OC) policy to treat def

endants with multiple convictions in a single case as defendants who have receiv ed a sec ond or sub sequent c onviction , and who t herefore must complete fo ur years of

MSR up on th ei r r el ea se fr om cu st od y. The trial court addressed defendant and a dmonished him that the range of penalties included the option

of proba tion or a prison ter

m of not les s than thr

ee or mor e than se ven y ears, followed by a f

our-yea r period of MSR. The court also admonished defendant that he could be fined up to $25,000. After defendant indicated he understood the possible penalties, the court explained the rights defendant was waiving by pleading guilty . After defendant indicated he was

aware of his rig hts, the Sta

te provid ed a fac tual basis for the c harge s. Defend ant and K .A. were

returnin g home f rom a day of swimming

at a YMCA i

n Sterling , Illi

nois, whe n defend ant park ed his ca r in a hote l parking

lot and wa

lked with K .A. into a wooded area, where the two e ngaged in oral sex. Defendant wa s 24 years old on the da te of the offenses and he indicated that, while he knew K.S. wa s not yet 16 y ears old, it was K.A.’s idea3

that they engag e in the se

xual conduc

t. Defen dant conf irmed tha t he was not being

forced to plead guilty a

nd no promises had been made other than the terms of the ag reement which the court had gone over. At the conclusion of the he aring, the court accepted de fendant’s guilty plea and se t a dat e for t he sen tenci ng heari ng. At the sentencing hearing, de fense counsel renewed his contention that defe ndant did not meet the conditions for having to spend four y ears on MSR, since he was being “convicted of two counts in the same case.” The trial court determined tha t a sentence of probation was not appropriate and he imposed concurrent ter ms of four yea

rs’ imprisonment. In addition, the court ordered that the enhanced four-y ear period of MSR would follow the prison term, since defendant was being sentence d on two counts of aggravated c riminal sexual abuse. Finally, the court ordered defendant to pay two $200 fines under the sexual assault fine statute and two $40 fines under the violent crime victims assistance fund statute. The tria l court no tified de fendant that if he wished to p

ursue an appeal, he would f

irst have to file either a motion to reconsider the sentence or a motion to withdraw his guilty plea

. On June 11, 2008, defendant filed an amended motion to reconsider sentence . In that motion, defenda nt maintai

ned that t he trial c ourt err

ed in impos ing a fo

ur-y ear ter m of MSR, and in ordering defendant to pay a separate $200 sexual assault fine on each of his convictions. On August 18, 2008, the trial court denied defendant’s motion to reconside r. ANA LYSIS Defendant brings three claims on appe al: (1) the trial court erred in imposing a four-year term of MSR under section 5-8-1(d)(5) of the Unified Code of Corr ections (Code) 730 IL CS 5/5- 8-1(d)(5) (West 2006)), (2) the trial court err ed in imposing duplicate fines under the sexual4

assault fines statute (730 IL CS 5/5-9-1.7(b)(1) (West 2006)), (3) the trial court should have imposed a

$20 fine, as oppose d to two sep arate f ines of $4 0 each, under the violent crime vict

ims assistance fund statute (725 IL CS 240/10 (West 2006)). The trial court has broad discretion in sentencing a nd imposing fines. People v. Bruer , 335 I ll. App. 3d

422, 425, 7 80 N.E.2d

1128, 1130

(2002); People v. Ivy , 133 Ill. App. 3d 647, 656, 479 N.E.2d 399, 405-06 (1985). These decisions will not be disturbed absent an abuse of discretion. Bruer , 335 I ll. App. 3d at 425, 78 0 N.E.2d a

t 1130; Ivy , 133 Ill. App. 3d at 656, 479 N.E.2d at 405-06. However, to the extent an issue presents a question of statutory interpretation, our revi ew is de novo

. Bruer , 335 Ill. App. 3d at 425, 780 N.E.2d at 1130-31. At the outset, we are confronted with a jurisdiction question. Defenda nt contends that the trial cou rt’s sent encing order is void. I n respons e, the Sta

te conte nds that th e order

is merely voidable. “Whether a judgment is void or voidable presents a question of jurisdiction.” People v. Davis , 156 I ll. 2d 149, 1 55, 619 N. E.2d 750, 7 54 (1993) . “A judg ment is void

(as oppos ed to voidable) only if the c ourt that entered it lacked jurisdiction.” People v. Raczkowski , 359 I ll. App. 3d 494, 496-97, 834 N.E.2d 596, 599 (2005). “ ‘By contrast, a voidable judgment is one entere d errone ously

by a court acting with

in its jurisd

iction an d is corr ectable on revie w [only ] if a timely appea

l is taken.’ ” Raczkowski , 359 Ill. App. 3d at 497, 834 N.E.2d at 599, quoting People v. Speed

, 318 Ill. App. 3d 910, 914, 743 N.E.2d 1084, 1087 (2001). Here, d efenda nt does not

contest that the tri al court lacked t he author ity t o order M SR and certain fines. I

nstead, defendant only

challenges the specific amount of MSR and fines ordered by

the trial court. Clearly , the sentencing order was within the jurisdiction of the trial1 The orde r is only voidable assuming

some err or exists. 5 court. Thus, we find that the order is not void, but instead, merely voidable. 1 We now turn to the merits of defendant’s appeal as the State, in its initial brief, acknowledg es that defendant’s appeal is ti me ly. We first consider the propriety of defendant’s sentence under sec tion 5-8-1(d)(5) of the Code (730 IL CS 5/5-8-1(d)(5) (West 2006)). Defendant contends that section 5-8- 1(d)(5) was improperly applied to him beca use his “two convictions stem from a single incident during which two sex acts were committed.” Thus, defendant arg ues that “he does not meet the definition of an offender who has committed a ‘second or subse quent’ offense against a person under 18 yea rs of age.” We agre e. Section 5- 8-1(d)( 5) provid es: “(d) *** Subject to earlier termination under Section 3-3-8, the parole or mandatory

supervised release term shall be as follows: * * *

(5) if the victim is under 18 ye ars of age, for a second o r subsequ

ent offe nse of ag grava ted crimi nal sexual

abuse or felony c

riminal sexual abuse, 4 years, at least the first 2 yea rs of which the defendant shall serve in an electronic home detention progra m under A

rticle 8A of Chapte

r V of this

Code.” ( 730 I LCS 5/5-8-1(d)(5) (West 2006). No Illinois court has addressed the mea ning of the phrase “second or subseque nt offense”6

in section 5-8-1(d)(5). However, sever al courts have interpreted different e nhancement provisions similar to the one at issue in this case. See People v. Leckner , 149 Ill. App. 3d 314, 500 N.E.2d 721 (1986); People v. Carlock , 102 Ill. App. 3d 1100, 430 N.E.2d 212 (1981); People v. Phillips , 56 I ll. App. 3d 689, 371 N .E.2d 1214

(1978). We

begin by examining these

cases. InPhillips , the State charg ed defe

ndant with

two sepa rate vio lations of

the I llinois Controlled Substance Act (Ill. Rev. Stat. 1975, ch. 56 1⁄2, par. 1401(b) ). Each violation was prosecu ted as an individua

l case. T he defe ndant ent ered a g uilty plea in e ach cau se on the s ame day, but at diffe

rent hearings. The hearing s were separated by a five-minute recess. The trial court imposed an enhanced sentence on the se cond case based on the conviction in the first -- the case in which he had pleaded guilty five minutes before the second case wa s heard. The enhancement provision in Phillips provided:

“Any person c onvicted

of a sec ond or sub sequent o ffense under this Act may be

sentenced to imprisonment for a term of up to twice the maximum term otherwise authorized ***. For purposes of this Section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this Act ***.” Ill. Rev. Stat. 1975, ch. 56 1⁄2 par. 1408. On appea l, the cou rt rejec ted the in terpretation ad

opted by the trial court an d ultimate ly reduced defendant’s sentence in the second case. Phillips , 56 Ill. App. 3d at 695-96, 371 N.E.2d at 1218-19. Specifically , the court stated:7 “A statute which imposes additional punishment upon conviction for a second or subsequent conviction is highly penal and must be

strictly construe d. [Citations .] Enhanc ed pena lty statutes are enacted as a warning to a first offender of the consequence s of a second conviction, and it cannot legally

be known that an offense has been committed until there has be en a conviction. [Citation.] Further, an enhanced penalty should not be imposed until the offender has had the opportunity to ref orm due to the salutary disc ipline of the punishment which he has received as a consequence of his first conviction. [Citations.] We conclude that the words ‘convicted of a second or subsequent offe nse’ prior to the fixing of penalties in section 408 of the Controlled Substances Act does not contemplate the accumulation of a number of of fenses within a four-day

period but contemplates increased punishment for a person who, a fter conviction, does not reform but persists in committing other offenses of a similar cha racter. [Citation.] Therefore, we hold that for a defendant to be sentence d to enhanced penalties of section 4 08 of the C ontrolled Substance s Act the f

ollowing must occu

r: (1) Th e defen

dant must be convicted of a narcotics violation charg e as defined in (b) of section 408; (2) he must then commit another narcotics offense which leads to his second or subsequent conviction; and (3) the enhanced penalties provision must be specifically invoked by the trial cour t when imposing sentenc e. Under

the fac ts of this c ase the t rial cou rt had no p ower to im

pose an e nhance d penalty on the defendant. Courts of other jurisdictions have reache d the same conclusion. [Citations.]” Phillips , 56 Ill. App. 3d at 695-96, 371 N.E.2d at 1218-19. The defendant in Leckner was charged with five counts of dec eptive practices. Each count of t he infor mation all eged that defe

ndant wa s guilty

of a fel ony

because he had pr eviously8

been convicted o f deceptive pra ctice. T he dece ptive pra ctices st atute pr ovides tha

t an offe nse under the statute is a Class A misdemeanor but adds that “[a] person convicted of a dec eptive practic e in viola

tion of pa ragra ph (d) a s econd or

subseque nt time sha

ll be gui lty o f a Class 4 felony. (I ll. Rev. Stat. 1983, ch. 38, par. 17-1(B)(d)). Prior to trial, the defenda nt filed a motion to dismiss the information on the grounds that the events leading to each of the five felony charges occurre d prior to his previous deceptive practice conviction. The trial c ourt denied the defendant’s motion and he was subsequently convicted on all five felony counts. In reversing defendant’s conviction the court stated:

“When pro of of a pr

evious conviction f

or an off ense will change a future violation of the law f rom a misdemeanor to a felony, the under

lying conviction is an element of the felony offense. [Citations.] Because a previous conviction for deceptive practice is an element of felony deceptive practice, the underly ing conviction must exist at the time the actions constituting a second offense take place. A ‘crime’ occurs only whe n certain acts or a seri es of actscoin cide

with t he re quisi te mental s tate . [Cita

tion. ] Thus, the State may

not enhan

ce a cr ime from m

isdemea nor to felony status beca

use of a conviction which arises after the occurrence of the actions which c onstitute the charged offense. Our conclusion is buttressed by a number of Illinois cases arising in various contexts which interpret enhancement provisions similar to the one at issue in the present case. [Citations.] In each9 of these cases, t he court determined that a

convicti on used to enhance the seriousness of a later off ense must precede the conduct which constitutes the second (felony ) offense.” Leckner , 149 I ll. App. 3d at 316, 500 N.E.2d at 722-23. Here, the State attempts to argue that beca use section 5-8-1(d)(5) does not use the term “convicted” or “committed,” the trial court’s conc lusion that one of defendant’s offenses was factually a

“second or subsequent offense” was pr oper. A similar argument, however, wa s rejected in Carlock . In Carlock , the cour t examined t

he sente nce prov isions of a

n obscen ity statute, which stated that obscenity is a Class A misdemeanor but that “[a] second or subsequent offense is a Class 4

felony .” I ll. Rev. Sta

t. 1979, ch. 38, par . 11-20(d ). On app eal, the

State allege d that by

use of the

word “of fense” as oppose d to “conv

iction” the legis lature c learly intended that the felony obsc enity prosecution nee d not be predicated on a prior conviction for obscenity. I

n disagreeing, the court stated:

“An examination of the Criminal Code of 1961 [citation] discloses that there are other sections of the Code providing for enhancement of penalties for subsequent offe nses which do not specifically r

efer to convictions but rather speak, as does the section here in ques tion, in ter ms of s ubse quen t off ense s. We particularly note

this to be true regarding some provisions that are subsections of the same offense. For example, section 16 -- 1 of the Criminal Code of 1961 deals in subparagraph (e)( 1) with the enhancement of the offense of thef t of property to a Class 4 fe lony10 speaking in terms of a second or subsequent off ense after a conviction of any ty

pe of theft, while the very next subparagraph (e)(2)provides

for the e nhance ment of the ft of a fi

rearm from a Class 4 fe lony

to a Class 3 felony

speaking only in terms of

offense without any refe

rence to a prior conviction. [Citation.] It is inconceivable that the legislature could have intended to require two diffe rent con ditions for

penalty enhanc ement wit

h refer ence to two cate gories

of theft. A similar e

xample ca

n be foun d with reference to deceptive pr

actices (see I ll. Rev. Stat. 1979, ch. 38, par. 17 -- 1(B), as contrasted with par s . 17 -- 1©)(3) and 17 -- 1©)(4)). From our reading of the statute we discern no intent of the legislature to depart from the requireme nt that the offense on which the subse quent enhanceme nt is pred icated mu st first be

reduce d to a conviction.” Carlock , 102 Ill. App. 3d at 1101-02, 430 N.E.2d at 213-14. In light of the fore going authority , we find the trial court abused its discretion in imposing a four-year term of MSR under section 5-8-1(d)(5). I n coming to this conclusion, we acknowledge that the above authority either involved enhancement of an incarc eration term or enhancement of a crime from a misdemea nor to a felony. The

instant case, however, involves enhancement of an MSR term. We find this distinguishing character istic irrelevant, however, because MSR is also a penal consequence of an individual’s c onviction. People v. Santana , 388 Ill. App. 3d 961, 968, 904 N.E.2d 132, 138 (2009).11

Defendant next contends the trial court erred in imposing duplicate f ines under section 5- 9-1.7(b) (1) of th e Code. Se ction 5-9 -1.7(b) (1) state s:

“In addition to any

other penalty imposed, a fine of $200 shall be im

posed upon any

person w ho pleads guilty or who is convicted of, or who receives a disposition of court supervision for, a sexual assault or attempt of a sexual assault.” 730 IL CS 5/5- 9-1.7(b)(1) (West 2006). Section 5- 9-1.7(a

)(1) de fines “s exual assa

ult” as fo llows: “ ‘Sexual assault’ means the commission or attempted commission of the following: sexual exploitation of a child, criminal sexual assault, predatory criminal sexual assault of a child, aggravated cr

iminal sexual assault, criminal sexual abuse, aggravated cr

iminal sexual abuse, indecent solicitation of a child, public indecency , sexual relations within families, soliciting for a juvenile prostitute, keeping a place of juvenile prostitution, patronizing a juvenile prostitute, juvenile pimping, exploitation of a child, obscenity, child pornog raphy, har

mful material, or ritualized abuse of a child, as those offenses are de fined in the Criminal Code of 1961 .” 730 IL CS 5/5-9-1.7(a)(1) (West 2006). The express language of sec tion 5-9-1.7(b)(1) does not limit the trial court to the impos ition

of on e fin e per

case . I nstea d, it p rovid

es fo r “a f ine o f $20 0 fine

*** f or[] a sexual assault. ” (Empha sis added .) 730 I LCS 5/5 -9-1.7(

b)(1) ( West 2006) . Here, defenda nt pled g uilty12

to two counts of aggravated c riminal sexual abuse. In light of these par ticular circumstances, we do not believe the trial court abused its discretion in ordering def endant to pay $400 unde

r section 5-9-1.7(b)(1). While we recog nize that the cases cited by defendant all involved instances where the trial court chose to impose one $200 fine w here the defendant was convicted of more than one c ount of “s exual assa ult,” we c annot say

that the tr

ial cour t in the inst

ant case ab us ed it s d is cr et io n m er el y be ca us e i t d ec id ed to im po se tw o $ 20 0 f in es . S ta te d a no th er wa y, the mere fact that other courts decided, in their discr etion, to order one $200 fine, does not mean that the trial court in the instant case abused its discretion in ordering two $200 fine s. Again, a trial court’s decision to impose a fine as part of a defe ndant’s sentence is entitled to great deference. Ivy , 133 Ill. App. 3d at 656, 479 N.E.2d at 405-06. Defe ndant has failed to provide us with any statutory

authority or ca se law that would act to bar the trial court’s actions here

. Lastly , defendant contends that the trial court should have imposed a $20 fine, a s opposed to two separate fines of $40 each, under se ction 10 of Violent Crime Victims Assistance Act (Act) ( 725 I LCS 240

/10 (West 20 06)). I

nitially, the State

conced es that the

trial cou rt erre d in ordering two separate fines of $40 e ach. While the State concedes error, it arg ues that defendant waived this issue because “defendant did not raise this issue in his motion to reconsider sentenc e, nor did he object to the imposition of the incorrect fees at the time of sentencing .” Although the State is correct that defendant waived this issue, we choose to review the issue as plain error under Supreme Court Rule 615(a) (134 I ll. 2d R. 615(a)). Both the State and defenda nt acknow

ledge t hat the su preme c ourt in

People v. Jamison , 229 Ill. 2d 184, 890 N.E.2d 929 (2008), determined that sec tion 10, applied in instances such as the current one where other fines ha ve been imposed, and that the rate of the additional section13

10 fine was calculated at $4 per ever y $40 of the other f

ine. See Jamison , 229 Ill. 2d at 193, 890 N.E.2d at 933-34. Thus, each of the two sexual assault fines of $200 carr ies an additional $20 fine under section 10 of the Act, for a total of $40, not $80. Be cause we find that the imposition of a fine not author

ized by statute c halleng es the inte grity

of the jud

icial pro cess, we

find plain error. See People v. Herron , 215 Ill. 2d 167, 178, 830 N.E.2d 467, 475 (2005). For the foregoing r

easons, we vacate defendant’ s four-ye ar term of MSR, affirm the trial court’s imposition of two $200 sexual assault fines under the Code, reverse the trial court’s imposition of two separate fines of $40 under the Act, and remand the matter for further procee dings. Vacated in part, affirmed in part, and r eversed in part; cause remanded f or further procee dings. CARTER and HOLDRI

DGE, JJ., concur.