NO. 4-01-1023

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

	Plaintiff-Appellee,

	v.

DEBRA L. ROBERSON,

	Defendant-Appellant.

	)

)

)

)

)

)

)

)	Appeal from

Circuit Court of

Champaign County

No. 01TR11249

Honorable

Holly F. Clemons,

Judge Presiding.

_________________________________________________________________

	PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

	Following a jury trial in the circuit court of Champaign

County, defendant Debra L. Roberson was found guilty of leaving the

scene of an accident.  625 ILCS 5/11-402(a) (West 2000).  The trial

court sentenced defendant to 12 months' conditional discharge and

directed her to perform 150 hours' community service and to pay

$350 within 10 months for the services of court-appointed counsel. 

The issues on appeal are whether (1) defendant's trial counsel

provided ineffective assistance by failing to present a defense of

compulsion rather than a defense of necessity, (2) the trial court

erred by not allowing defendant to testify concerning her state of

mind at the time of the accident, and (3) the trial court failed to

conduct a meaningful hearing regarding defendant's ability to pay

for the services of court-appointed counsel.  We vacate the order

directing defendant to pay $350 for the services of court-appointed

counsel, remand for a hearing on defendant's ability to pay for

such services, and affirm in all other respects.

	The accident occurred on April 29, 2001, at or near the intersection of Williamsburg Drive and Summit Ridge Road  in Champaign,

Illinois.  Defendant was driving her Chevrolet Malibu.  The

operator of the other vehicle, a 1989 Chevrolet Blazer, was

Terrence Avant.  It is undisputed that defendant did not stop;

remain at the scene; and give her name, address, registration

number, driver's license number, and identity of the owner of the

vehicle.  Champaign police officer Colby Oleson testified that he

observed a dented fender on the Blazer.  As he was talking to

Avant, Avant pointed out defendant's vehicle to Oleson, and he

eventually apprehended her.

	Defendant's friend, Charika Williams, was a passenger in

Avant's vehicle.  Avant was Williams's boyfriend.  Prior to the

collision, there had been an altercation between Avant and

defendant after defendant tried to stop Avant's vehicle to speak

with Williams and began striking the passenger side window of

Avant's vehicle.  The severity of the altercation was disputed by

defendant, Avant, and Williams.  Williams and Avant characterized

it as a little wrestling or tussling, while defendant testified

that Avant hit and kicked her.  When Avant drove away with Williams

in the Blazer, defendant followed in her vehicle.  In an attempt to

try to lose defendant, Avant made a quick U-turn.  After this

maneuver, the vehicles collided.

	Williams testified that there was a small dent in the

Blazer and that defendant's car was more extensively damaged. 

Avant testified that, after the collision, defendant did not stop. 

Avant followed her for a while and then found a police officer and

reported what happened.  While he was talking to the officer,

defendant drove by in her car.

	Defendant testified that she was upset with Williams when

she saw Williams in Avant's truck.  She wanted to talk to Williams,

and she tapped on the window of the vehicle and yelled at Williams

to get out of the truck.  According to defendant, Avant threw the

truck into park, jumped out, grabbed her, threw her to the ground,

and proceeded to hit and kick her.  She was swinging and kicking to

get him off her.  After Avant drove away, she followed because she

was upset and wanted to talk to Williams.  Avant made a U-turn, and

she turned right behind him.  That was when the collision occurred. 

She did not stop after the collision because she was afraid that

Avant was going to hit her, and she decided to find them later and

give Williams the information that they needed.  When she drove

away, Avant chased her for 5 or 10 minutes.  She was proceeding to

Avant's mother's house when she was stopped by the police.  She

thought Avant would not hurt her at his mother's house and after

having time to cool off.  

	To prevail on a claim of ineffective assistance of

counsel, defendant must show that counsel's performance fell below

an objective standard of reasonableness and it is reasonably

probable that, but for counsel's unprofessional performance, the

result of the proceedings would have been different.  People v. Reid, 179 Ill. 2d 297, 310, 688 N.E.2d 1156, 1162 (1997).  On appeal, defendant argues that defense trial counsel should have

presented a defense of compulsion rather than one of necessity. 

The defenses of compulsion and necessity are defined by statute. 

720 ILCS 5/7-11(a), 7-13 (West 2000).  Both are affirmative

defenses.  720 ILCS 5/7-14 (West 2000).  Unless the State's

evidence raises the issue, the defendant must present some evidence on the defense to raise the issue.  720 ILCS 5/3-2(a) (West 2000). 

A defendant is entitled to have a jury instructed on a legally

recognized defense that has some foundation in evidence.  People v. Hoyt, 180 Ill. App. 3d 863, 869, 536 N.E.2d 472, 476 (1989).

	Compulsion is a defense distinct from necessity. 

Compulsion implies complete deprivation of free will and the

absence of choice; necessity involves choice between two or more

admitted evils.  Hoyt, 180 Ill. App. 3d at 869, 536 N.E.2d at 476.  Under the necessity defense, conduct that would otherwise be an

offense is justified if the defendant was (1) without blame in

occasioning or developing the situation and (2) reasonably believed

the conduct was necessary to avoid a public or private injury

greater than the injury that might reasonably result from her own

conduct.  720 ILCS 5/7-13 (West 2000).,  By contrast, the defense of

compulsion provides that, except for an offense punishable with

death, a person is not guilty of an offense if (1) she performs the

conduct under the compulsion of threat or imminent infliction of

death or great bodily harm and (2) she reasonably believed death or

great bodily harm would be inflicted on her if she did not perform

such conduct.  720 ILCS 5/7-11(a) (West 2000).  "The defense of

compulsion generally requires an impending imminent threat of great

bodily harm together with a demand that the person perform a

specific criminal act for which he is eventually charged."  Hoyt, 180 Ill. App. 3d at 869, 536 N.E.2d at 476, citing People v. Unger, 66 Ill. 2d 333, 339, 362 N.E.2d 319, 322 (1977).  

	There was no evidence in this case that Avant, or anyone

else, threatened defendant with imminent infliction of death or

great bodily harm unless she left the scene of the accident.  By comparison, in People v. Clinkscales, 19 Ill. App. 3d 173, 175, 311 N.E.2d 253, 255 (1974), relied on by defendant, the reviewing court

found the evidence warranted the giving of an instruction on

compulsion in a trial involving a charge of resisting a police

officer where a police officer came out of bushes; grabbed the

defendant; said, "I got you, nigger"; and struck the defendant in

the head with a police club.  In this case, although defendant

testified she was concerned that Avant would be threatening or

cause her harm if she stopped, that behavior by Avant never

occurred.  Defendant was not compelled to leave the scene of the

accident.  In addition, the evidence shows defendant followed Avant

and the collision occurred because of defendant's conduct.  Defense

trial counsel was not ineffective for failing to raise the defense

of compulsion.  It was not available under the facts of this case.

	Defendant next contends that it was plain error for the

trial court to prevent her from testifying about her state of mind. 

A review of the transcript shows that, even though the trial court

sustained objections to questions that were leading or called for

speculation, defendant was allowed to testify about her state of

mind.

	Without objection, defendant testified that, when her car

hit Avant's vehicle, the only thing she "could think of was he's

going to hurt me."  She testified that she was afraid when she hit

the truck.  She testified, "I was very, very, very upset and scared

and just wanted to get away from--from him because I was afraid he

was going to hurt me."  She then testified that she drove away

because she was afraid he was going to hurt her and she wanted to

find them later or find Williams later to give her the information that she needed.  She testified that, when the police stopped her,

she was going to the home of Avant's mother. 

	The record shows the trial court ruled that defendant was

not allowed to speculate that Avant would do more than throw her to

the ground for hitting his truck; to respond to a leading question

that she was afraid "because he knocked you down, right?"; and to

speculate that she would have stopped had the earlier altercation

not occurred. In this appeal, defendant does not challenge each of

these evidentiary rulings as being an abuse of discretion. 

Instead, defendant makes the argument that she was denied a fair

trial because the trial court did not allow her to "fully testify

as to her mental state at the time of the accident."  We disagree. 

Defendant was allowed to fully disclose to the jury her mental

state at the time of the accident through responses to appropriate

questions by her attorney.  There was evidence of the earlier

altercation between Avant and defendant and that, at the time of

the accident, defendant was afraid of what Avant might do.  Defense

counsel was free to argue, and did argue, the inferences to the

jury.  Defense counsel argued that defendant was "scared of a

bully"; defendant was beaten, knocked down, and kicked; and

defendant was motivated by fear.  Defendant was allowed to fully

explore the question of her mental state at the time of the

accident.

	At the conclusion of the sentencing hearing, the trial

court inquired of defendant whether she was working and how much

she was earning.  With respect to the hearing on payment for court-

appointed counsel, the record shows:

		"THE COURT: *** Ms. Roberson, where are you working?

		MS. ROBERSON: I'm working at the (inaudi

ble).

		THE COURT: How much are you earning per

month there?

		MS. ROBERSON: $500 a month.

		THE COURT: (Inaudible.)  I will order Ms.

Roberson to pay for the services of court-

appointed counsel the amount of $350 within

the next 10 months."

	Defendant's financial affidavit showed an income of $650

per month, an employment of one month, one child, and enrollment as

a student at Heartland Community College.

	Section 113-3.1(a) of the Code of Criminal Procedure of

1963 (Code) (725 ILCS 5/113-3.1(a) (West 2000)) requires a trial

court to conduct a hearing regarding the defendant's financial

resources to determine her ability to pay for court-appointed

counsel.  People v. Love, 177 Ill. 2d 550, 556, 687 N.E.2d 32, 35 (1997).  The hearing must focus on the defendant's foreseeable

ability to pay.  Love, 177 Ill. 2d at 563, 687 N.E.2d at 38.  At the hearing, the trial court is to consider the affidavit prepared

by defendant in seeking court-appointed counsel.  725 ILCS 5/113-

3.1(a) (West 2000).  In addition, the defendant must (1) have

notice that the trial court is considering imposing a payment order

pursuant to section 113-3.1 of the Code and (2) be given the

opportunity to present evidence regarding her ability to pay and

other relevant circumstances and otherwise be heard regarding

whether the court should impose such an order.  People v. Johnson, 297 Ill. App. 3d 163, 164-65, 696 N.E.2d 1269, 1270 (1998).  The

trial court may not simply order reimbursement in a perfunctory

manner.  See People v. Washington, 297 Ill. App. 3d 790, 794-95, 697 N.E.2d 1241, 1244-45 (1998). 

	In Johnson, this court recommended a procedure to be employed by the trial court to provide a defendant notice of the

fact that the issue of reimbursement of attorney fees was about to

be considered by the trial court.  Johnson, 297 Ill. App. 3d at 165, 696 N.E.2d at 1270.  The record in this case does not show

that the procedure recommended in Johnson was followed.  Other than the trial court's two questions, "where are you working" and "how

much are you earning per month," the notice requirements were not

followed.  Defendant was not given the opportunity to present

evidence and be heard regarding the payment order.  In addition,

the record does not show the trial court considered defendant's

financial affidavit.  The requirements of section 113-3.1 of the

Code were not followed.  Further, waiver does not apply even though

defendant did not object to the order at sentencing, where the

record shows the trial court ordered reimbursement, sua sponte, without warning.  Love, 177 Ill. 2d at 564, 687 N.E.2d at 39.

	We vacate the order requiring defendant to pay $350 for

the services of her court-appointed attorney and remand for a

hearing on defendant's ability to pay for such services pursuant to

section 113-3.1 of the Code.  In all other respects, we affirm the

judgment of the circuit court of Champaign County.

	Affirmed in part and vacated in part; remanded with

directions.

	TURNER and APPLETON, JJ., concur.