## 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 . Jake , 2011 IL App (4th) 090779

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MAURI CE D. J AKE, De fenda nt-Appellant.

District & N o. Four th District Docke t No. 4-09-0779

Filed August 15, 2011

Held (Note : Thi s syl lab us

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 b y 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

. ) On appe al from de fenda nt’s conviction for ag gravated domestic batter y and ag g ravated battery
, his statutorily permissible 25-year sentenc e was not an abuse of discretion, his argument on appea l that the trial court exceede d its statutory authority in imposing a late fee and a collection fee

was dismiss ed due to the appellate court’s lack of jurisdiction wher e the fee s wer e assessed four months afte r defen d an t s ’ notice of appea l was filed, but defe ndant was entitled to apply his cred i t for his prese ntence incar cer ation to the $5 drug -cour t fee
, which did constitute a fine, and the $25 Violent Crime Victims Assistance Act assessment was reduc ed to $4 wher e def endant’ s remainingfine wa s less than $40.

Dec ision Under Review Appea l from the Circu it Court of Champaign County
, No. 09-CF- 356; the Hon. Thomas J. Difanis, J udg e, pre siding.

J udg ment Appea l dismi ssed in part; judg ment aff irmed in part a s modified; cause

rema nded with direc tions.Counsel on

Appea l M i chael J

. Pelletier, Kar en Munoz, and Amber Gra y , all of State Appellate D efe nder’ s Offic e, of Spring field, for appellee

.

J ulia Ri etz, State’s Attorney
, of Urba na (Patrick Delfino, Robert J

. Bide rman, and J ames C. Majors, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE POPE delivered the judgment of the c ourt, with opinion. Presiding J ustice Knec ht and J ustice Appleton conc u rre d in the judgme nt and opinion.

OP INION

¶ 1 In J uly 2009, a jury convicted defe ndant, Maurice D. J ake, of ag gr a v a te d d omestic battery (720 I L CS 5/ 12-3.3(a ) (West 2008)) a nd ag gravated battery (720 I L CS 5/ 12-4(b) (8) ( West 2008)). In August 2009, the trial court sentenc ed defe ndant as a Class X offe nder pur suant to section 5-5-3( c)( 8) of the Unified Code of Correc tions (Unified Code) (730 I L CS 5/5-5- 3(c) (8) (West 2008)) to 25 year s’ imprisonment for ag gravated domestic battery wi t h 168 day s’ sentenc e cr edit. ¶ 2 Def

endant appea ls, arguing (1) the trial court abused i t s d i s cr et i o n i n s en t en ci n g d ef en d an t to 25 year s’ imprisonment, (2) the circ uit cler k is without authority to assess a $38.25 late fee and an $ 8 7

. 98 collection fee
, (3) the trial court err ed in failing to apply defe ndant’s prese ntence cre dit toward his $5 drug -cour t fee
, and (4) the $25 Violent Crime Victims Assistance Fund (VCVA) assessment should be reduc ed to $4. We dismiss in part, aff irm in part as modified, a nd rema nd with directions.

¶ 3 I . BA CKGROUND ¶ 4 In Fe bruar

y 2009, the State charg ed defe ndant by information with ag gravated domestic battery (720 I L CS 5/12-3.3(a) (West 2008)) and ag gravated battery (720 I L CS 5/12-4(b)( 8) (West 2008)). At defe ndant’s J uly 2009 jury trial, the State prese nted the following evidenc e. Chasity Ba

ref ield testified in Fe bruar

y 2009, she lived in Paris, I llinois
, with her boy friend, defe ndant. On Fe bruar

y 23, 2009, defe ndant drove Ba ref ield to her place of employ ment, a Wal-Mart in Champaign, I llinois

. Ba ref ield testified she finished her shift at 10 p.m. and hurried outside to the parking lot, wher e defe ndant was waiting

. Def endant h ad driven to Wal-Mart in Ba

ref ield’s vehicle and was waiting in the pass eng er seat of the vehicle. Ba ref ield enter ed the driver’ s seat of the vehicle. Ba ref ield testified t hat upon entering t h e vehicle, she and def

endant be g an to discuss a number that appea red on her cell phone bill. Ba ref ield told defe ndant she had not been unfaithful. Def endant then struck Ba

ref ield’s arm. Ba ref ield pulled out of the Wal-Mart parking lot an d b eg an to drive to the residenc e she

-2-share d with defe ndant in Paris. Ba ref ield testified defe ndant repe atedly struck her during the drive home. I f Ba

ref ield slowed down, defe ndant hit her “har der.” The entire trip took 70 minutes. Ba

ref ield estimated defe ndant “beat” her for 45 minutes of the trip. Def endant had beate n her on prior occ asions. ¶ 5 On Fe b ru ary 2 6
, 2009, Ba ref ield went to a hospital in Champaign, I llinois
, and spoke with a C hampaign police o ff i ce r. S he testi fied the office r t ook photogr aphs of the i njuries he observe d. The State introduced into evidenc e the photogr aphs the office r took of Ba ref ield’s injuries. The photogr aphs showed bruises on various parts of her body
, including her e ye, right arm, che st, leg s, and hands. ¶ 6 Ba

ref ield experience s numbness in her l i t t l e fing er and the finger next to it as a result of the beating

. Ba

ref ield did not repor

t her injuries until Februar y 26, 2009, beca

use she was developinga plan a

nd neede d “help f

rom work.” ¶ 7 Ba

ref ield testified defe ndant was identified in he r ce llular phone as “Ree se.” The State
enter ed a photogr aph into evidenc e of a text messag e sent from “Ree s” to Ba ref ield at 7:16
p.m., on Feb ruary 23, 2009. The messag e from “Ree s” st ated “Im beatin u.” At 7:17 p.m.,

a messag e rea ding, “eve ry fuckin 10 minut[ ]es like I told u,” was also sent from “Ree s.” The State enter ed into evidenc e a photogr aph of this text messag e as well. Ba ref ield testified she

was a fra id of defe ndant and he had thre atene d to kill or hurt her if she e ver le ft him. ¶ 8 Ba

ref ield testified based on previous experience s, she knew if she had fought back during the drive home on Fe bruar y 23, 2009, defe ndant would have punched her “har der.” She felt if she had drawn attention to her vehicle du ri n g the drive home, the incident “would have been w orse than what it was.” ¶ 9 The jury found defe ndant guilty of ag grava ted domestic battery and ag gravated batter y

. The trial court deter

mined the offe nse of ag gravated battery merg ed with the conviction for
ag gravated domestic batter y . There afte r, the c ourt sentenc ed def endant a s stated. ¶ 10 This appea l followed.

¶ 11 I I . ANALYSI S ¶ 12 On appea l, defe ndant ar gu es (1 ) t h e t ri al court abused its discretion in sentencing defe ndant to 25 year s’ imprisonment, (2) t h e ci rc u i t cler k is without authority to assess a $38.25 late fee and an $87.98 collection fee
, (3) the court err ed in failing to apply defe ndant’s
prese ntence cre dit toward his $5 drug -cour t f ee, and (4) the $25 VCVA asse ssment should be re duced to $4.

¶ 13 A. Twe nty -five- year Sentence ¶ 14 Def

endant argues the trial court abused its discretion in imposing a 25-year sentenc e for his ag g ravated-domes t i c- b attery conviction. Trial courts are g iven broad discretion in fashioning appropriate criminal sentenc es. People v. Stacey
, 193 I ll. 2d 203, 209, 737 N.E.2d 626, 629 (2000). Absent an abuse of the court’s discretion, we will not alter the sentenc e on revie w. Stacey , 193 I ll. 2d at 209-10, 737 N.E.2d at 629. ¶ 15 Ba sed on defe ndant’s prior criminal histo ry , t h e t ri al co u rt was require d to sentence

-3-defe ndant on his Class 2 felon y as a Class X offe nder. See 730 I L CS 5/5-5-3(c )(8) (West

2008). The 25-year sentenc e was appropriat e considering defe ndant’s scant reha bilitative potential. Def

endant’ s criminal rec ord dates back t o 1994 when he was adjudicate d delinquent for ag g rava

ted battery

. S i n ce then, defe ndant has been convicted of unlawful possession of a controlled substance with intent to deliver, unlawful possession of canna bis with intent to deliver, unlawful delivery of a controll ed substance, and numerous traff ic violations. In the prese ntence investigation (PSI ) repor t, defe ndant char acte rized his actions

as “nothing other than a case of domestic battery
, which was somehow, some way tripled into serious fe lonies.” ¶ 16 The trial court stated it considere d th e P S I re p ort, statutory fac tors in ag grava tion and mitigati o n , c o mm e nts o f c o u n s e l, a n d d e f endant’ s written comments. The court found sever al applicable mitigatingfac tors, including de fenda nt’s ag e (31), his employ

ment history
, and his prior child-support pay ments. The court found statutory fac tors in ag gravation included defe ndant’s prior juvenile and adult criminal history and the need for deter renc e. The court noted this was a deter

rable offe nse. Def

endant’ s pencha

nt for criminal activity
, and the court’s responsibility to deter future conduct of this sort, supports the court’s imposit ion of

a 25-year prison sentenc e. The court did not abuse its discretion in rende ring the statutorily permissible 25-year

sentenc e.

¶ 17 B. A uthority To Impose L ate a

nd Collection Fee s ¶ 18 Next, defe ndant argues the circ uit cler k exceede d her statutory authority in ordering him
to pay a $38.25 late fee and an $87.98 collection fee

. On Fe bruar y 17, 2011, t h i s court direc ted the parties to (1) supplement the rec ord with t h e d at e on which the circ uit cler k assessed the late fee s and collection fee s; (2) addre ss the issue of this court’ s au t h o ri t y to revie w on direc t appea l of a c riminal judgme nt the late fe es and c ollection fee s that can be assessed under section 124A-10 of the Code of Criminal Procedur e of 1963 (P ro ce du re C o de) (725 I L CS 5/124A-10 (West 2008)) only after the expiration of 30 day s follow i n g entry of the judgme nt; (3) addre ss the issue of whether the late fee s an d co l l ec t ion fee s assessed by t he circ uit cler k under section 124A-10 of the Procedur e Code (725 I L CS 5/124A-10 (West 2008)) are part of the criminal judgme nt or whethe r t h e fe es are in the
nature of a separ ate civil penalty which must be challeng ed by a cause of action separ ate from the criminal case ; and (4) addre ss the issue of whe t h er a court-or dere d pay ment schedule was implemented in this case . We have now c onsidered the supplemental brief s. ¶ 19 Section 124A-10 of the Procedur e Code provide s as follows:

“The proper

ty , rea l and persona l, of a person who is convicted of an offe nse s h al l b e bound, and a lien is cre ated on the proper ty , both rea l and persona l, of ever y offe nder, not exempt from the enfor ceme nt of a judgme nt or attachme nt, from the time of finding the indictment at least so far as will be suffi ci en t t o p ay the fine and costs of prosec ution. The cler k of the court in which the conviction is had shall upon the expiration of 30 days afterjudgment is entere d issue a cer tified copy of the judgme nt for any fine that rema ins unpaid, and all costs of conviction rema ining unpaid. Unless a court order ed pay ment schedule is implemented, the cler k of the court may add to any judgme nt a delinquency

-4-amount equal to 5% of the unpaid fines, costs , fe es , an d penalties that rema in unpaid afte r 30 day s, 10% of the unpaid fines, costs, fee s, and penalties that rema in unpaid afte r 60 day s, and 15% of the unpaid fines, costs, fee s, and penalties that rema in unpaid afte r 90 day s. Notice to those parties aff ecte d may be made by signa g e posting or publication. The clerk o f the court may also afte r a period of 90 day s rele ase to cre dit repor ting
ag encie s, information reg arding unpaid amounts. The additional delinquency amounts collecte d under this Section shall be used to defr ay additional administrative costs incurre d by the cler

k of the court in collecting unp aid fines, costs, fee s, and penalties. The certified copy of t he judgment s hall state the day on which the arr est was made or indictment f

ound, as the c ase ma

y be. Enforc ement of the judgme nt ma y be direc ted to the proper office r of any county in this State. The office r to whom the cer tified copy of the judgme nt is delivere d shall levy the judgme nt upon all the estate, rea l and persona l, of the defe ndant (not exempt from enfor ceme nt) possessed by him or her on the day of the arrest or finding the i ndictment, as st ated in the certified copy of th e j u d g ment and
any such proper

ty subsequently acquir ed; and the proper ty so levied upon shal l be adver tised and sold in the same manner as in civil case s, with the like rights to all parties that may be interested in the proper ty

. It is not an objection to the selling of any proper ty under the judgme nt that the defe ndant is in custody for t h e fine or costs, or both.” (Emphasis adde d.) 725 I L CS 5/ 124A-10 (West 2008). ¶ 20 Section 5-9-3( e) of the Unified Code pr ovides the following : “A defa ult in the pay

ment of a fine, fee
, cost, ord er o f re s t i tution, judgme nt of bond forf eiture, judgment order of forf eiture, or any installment thereof ma

y be collected by
any and all means authorized for the collect i o n o f money judgme nts. The State’s Attorney of the county in which the fine, fee
, cost, order of restitution, judgme nt of bond forf eiture, or judgme nt order of forf eiture was imposed may reta in attorney s and private collection ag ents for the purpose of collecting any defa ult in pay ment of any fi n e, fee
, cost, order of restitution, judgme nt of bond forf eiture, judgme nt order of forf eiture, or installment there of. An additional fee of 30% of the delinquent amount is to be charg ed
to the offe nder for any amount of the fine, fee
, cost, restitution, or judgme nt of bond forf eiture or installment of the fine, fee
, cost, restitution, or judgme nt of bond forf eiture that rema ins unpaid afte r the time fix ed for pay ment of the fine, fee
, cost, restitution, or judgme nt of bond forf

eiture by the court. The additional fee shall be payab l e t o t he State’s Attorney in order to compensa te the State’s Attorney for costs incurred in collect ing the delinquent amount. The State’s Attorney may enter into agree ments assig ning a

ny portion of the fe e to the reta ined attorney s or the private collection ag ent reta ined by the State’s Attorney

. Any agree m en t b et wee n the State’s Attorney and the
reta ined attorney s or collection ag ents shall require the approva l of the Circuit Clerk of
t h at county

. A defa

ult in pay ment of a fine, fee
, cost, restitution, or judgme nt of bo n d forf eiture sha ll draw intere st at t he rate of 9% per annum.” 730 I L CS 5/ 5-9-3( e) ( West 2008). ¶ 21 The car dinal rule of statu t o ry co n s tru ct i o n i s t o as ce rtain and g ive eff ect to the leg islature’s intent. People v. Diggins
, 235 I ll. 2d 48, 54, 919 N.E.2d 327, 331 (2009). “The best indicator of the l egis lature’ s intent is the languag e of the statute, which must be

-5-acc orded its plain and ordinary meaning .” Diggins
, 235 I ll. 2d at 54, 919 N.E.2d at 331. To

avoid rende ring any part of the statute meaning less or superf luous, statutes are construed in their entirety

. W

eather-Tite, Inc. v. University of St. Francis
, 2 3 3 I l l

. 2 d 385, 389-90, 909 N.E.2d 830, 833 (2009). Where the statutory languag e is cl ear and unambiguous, a court must apply the statute as written without resor ting to aids of statutory construction. Solon v. Midwest Medical Re cords Ass’n , 236 I ll. 2d 433, 440, 925 N.E.2d 1113, 1117 (2010). ¶ 22 Her e, section 124A-10 of the Procedur e Code states the cler k of the court “shall upon the expiration of 30 day s afte r judgme nt is enter ed issue a cer tified copy of the judgme nt for any fine that remain s unpaid, and all costs of conviction rema ining unpaid.” 725 I L CS 5/124A-10 (West 2008). The judgme nt may be enfor ced on “[ t ] h e proper ty , rea l and persona l, of a person who is convicted of an o ffe nse.” 725 I L CS 5/124A-10 (West 2008). Fur ther, the
statute provides proper

ty levied upon “shall be adver tised and sold in the same manner as in civil case s,” 725 I L CS 5/124A-10 (West 2008). Section 5-9-3( e) of the Unified Code states “[ a] n ad d itional fee of 30% of the delinquent amount is to be charg ed to the offender ” “in order to compensate the State’s Attorney for costs incurre d in collecting the delinquent amount.” 730 I L CS 5/ 5-9-3( e) ( West 2008). ¶ 23 S ec t i on 124A-10 of the Procedur e Code does not exclude those individua l s wh o ar e convicted of an offe nse and sentenc ed to a prison term. Whil e we agree with the State such fee s are authorized by statute, those statutes make clea r the fee s are in the nature of a separ ate civil penalty which must be challeng ed by a cause of action separ ate from the criminal case

. There fore
, we decline to addre ss this issue in t h e co n t ext of a criminal case

. We note defe ndant is repr esente d by an attorney whose fee s are being paid with tax dollars. We also
note court-a

ppointed counsel is to repr esent defe ndant in criminal matters o n l y

. I f a defe ndant chooses to contest civil penalties assessed for nonpay ment of a judgme nt he or she can do so pro seor ca

n hire a n attorney for that pur

pose. ¶ 24 Fur

ther, the late and collection fee s imposed wer e not assessed until afte r defe ndant filed his notice of appea l. A notice of appea l provides a revie wing court wi th jurisdiction to consider only the judgme nts specifie d in the notice of appea l. People v. Lewis
, 234 I ll. 2d 32, 37, 912 N.E.2d 1220, 1223 (2009). Once the notice of appea l is filed, the revie wing court has

no jurisdiction over matters the trial court decide s afte r that date. Mi t ch el l v. Atwood Enterprises, Inc.
, 253 I ll. App. 3d 475, 478, 624 N.E.2d 878, 881 (1993). The final judgme nt in a criminal case is the sentenc e. People v . Caballero , 102 I ll. 2d 23, 51, 464 N.E.2d 223, 236-37 (1984)

. Her e, the trial court sentenc ed defe ndant on August 12, 2009. As a result, defe ndant had to file a notice of appea l within 30 day s afte r the judgme nt or within 30 day s afte r the trial court disposed of the last timely filed motion direc ted ag ainst the judgme nt. See I ll. S. Ct. R. 606(b) (ef

f. Sept. 1, 2006). Def

endant filed a m o t i on for rec onsideration of
sentenc e on August 14, 2009, and a notice of appea l on October 13, 2009. The cler k assessed late and collection fee s on Fe bruar y 9, 2010, six months afte r judgme nt and four months afte r defe ndant filed his notice of appea l. Thus, we do not have jurisdiction to consider the merits of def endant’ s argument and, ac cording ly , dismiss this portion of defenda nt’s appea l.

-6-¶ 25 C. $5-Per-Da y Credit ¶ 26 Def

endant argues, and the State conce des, defe ndant should rec eive monetary cre dit for time spent in custody ag ainst the $5 drug -cour t fee im p o s ed b y t h e trial court pursuant to section 5-1101( f)( 2) of the Counties Code (55 IL CS 5/ 5-1101(f )(2) (West 2008)). ¶ 27 Section 110-14(a ) of the Proc edure Code provides the f ollowing: “Any person incar cer ated on a bailable offe nse who does not s up p l y bail and ag ainst whom a fine is levied on convic tion of such offe nse shall be allowed a credit of $5 for

eac h day so incar cer ated upon a p p li c a ti o n o f the defe ndant.” 725 I L CS 5/110-14(a) (West 2008). ¶ 28 In this case , it is undisputed defe ndant was incar cer ated 168 day s on a bailable of fense

. As a re sult, defenda

nt ha s $840 in a

vailable cre dit a g ainst fines. The State conce des the $5 drug -cour t “f ee ” i s actua lly a fine beca use the rec ord does not show it was soug ht to reimburse the State for any cost incurre d as a result of prosec uting defe ndant. Following our revie w of the r ecord, we a ccept the State’s conc ession and agree

. ¶ 29 The centr al char acte ristic separ ating a fee from a fine is how the attributes of the cha rg e

are to be used. See People v . Paige
, 378 I ll. App. 3d 95, 102, 880 N.E.2d 675, 682 (2007)

. “[A] ‘cha rg e is a fee if and only if it is intended to reimburse the state for some cost incurre d in [ the] defenda

nt’s prosec ution. [ Citations.] ’ ” Paige , 378 I ll. App. 3d at 102, 880 N.E.2d
at 682 (q u o t i n g P eo

p le v. Jones
, 223 I ll. 2d 569, 600, 861 N.E.2d 967, 986 (2006))

. The

reve nue from the charg es i mposed under section 5-1101(f )(2) are intended to be use d “for the operation and administration of the drug court” (55 I L CS 5/5-1101(f) (West 2008)) and not to reimburse the State for costs incurre d as a result of prosec uting de fenda nt, who was
not transfe rre d to drug court. As a result, the $5 assessment is a fine. Be cause the assessment is a fine, defe ndant is entitled to apply his available $840 available cre dit toward that
assessment.

¶ 30 D. VCVA Asse ssment ¶ 31 Def

endant a rgues the $25 VCVA f

ine should be reduce d to $4, and the St ate c oncede s the fine should be r educe d to $4. ¶ 32 Pursuant to section 10(c) (1) of the Violent Crime Victi ms A s sistance Act, the $25 VCVA
assessment defe ndant rec eived is to be imposed only wher e the defe ndant is convicted of a qualifying f

elony and no other

fine is imposed. See 725 I L CS 240/ 10(c) (1) ( West 2008). ¶ 33 In this case, the $5 dr ug -cour t assessment is a fine beca use the record does not show it

was s o u gh t t o reimburse the State for any costs incurre d in defe ndant’s prosec ution. See Paige , 378 I ll. App. 3d at 102, 880 N.E.2d at 682. ¶ 34 Where a

nother fine is imposed, section 10(b) of the Violent Crime Victims Assistance Act requires “there shall be an additional penalty collecte d *** upon conviction *** of $4 for eac h $40, or fra ction there of, of fine imposed.” 725 I L CS 240/10(b) (West 2008). In this

case , the drug -cour

t fine is $ 5. Acc ording ly
, defe ndant’s VCVA assessment should be modif i ed to $4 beca

use the rema ining fine totals less than $40. See 725 I L CS 240/10(b) (West 2008).

-7-¶ 35 I I I . CONCLUSI ON

¶ 36 Fo r t h e re as o n s s t at ed
, we dismiss those parts of the appea l for which we lack jurisdiction. We rema

nd for the application of defe ndant’s $840 available cre dit toward the $5 drug -cour

t f ee and a reduc tion of the VCVA assessment to $4. We otherwise aff irm the trial co urt’s judgme nt. Be cause the State succe ssfully defe nded a portion of the criminal judgme nt, w e g rant the State its $50 statutory assessment ag ainst defe ndant as costs of this
appea l. See People v. Smith
, 133 I ll. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985) (citing People v . Nicholls , 71 I ll. 2d 166, 178, 374 N.E.2d 194, 199 (1978)).

¶ 37 Appea l dismissed in pa rt; judgme nt a ffirme d in pa rt as modified; cause rema nded with direc tions.

-8-