Opinion
No. 1-16-2350
05-10-2019
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSHUA LACEY, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 15 C6 60497 Honorable Allen F. Murphy, Judge, presiding. JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice Delort and Justice Cunningham concurred in the judgment.
ORDER
¶ 1 Held: We order the ministerial correction of the fines and fees order to reflect presentence incarceration credit against several of the assessments therein. We lack subject matter jurisdiction to consider defendant's other challenges to his fines and fees. ¶ 2 Pursuant to a 2016 negotiated guilty plea, defendant Joshua Lacey was convicted of aggravated unlawful use of a weapon (AUUW) and sentenced to three years' imprisonment with 2 fines and fees. Defendant now appeals from the denial of his 2016 petition for relief from judgment (735 ILCS 5/2-1401 (West 2016)). On appeal, he contends for the first time that one of his fines is erroneous and certain of his fees are actually fines for which he should receive presentence incarceration credit. For the reasons stated below, we grant credit against certain of defendant's fines and otherwise affirm. ¶ 3 Defendant was charged with five weapons offenses allegedly committed on or about June 21, 2015, including AUUW (720 ILCS 5/24-1.6(a)(1), (3)(a-5) (West 2014)) for allegedly knowingly carrying a firearm that was uncased, loaded, and immediately accessible when he had not been issued a valid concealed carry license and had previously been convicted of the felony offense of robbery. On February 9, 2016, pursuant to a plea agreement, defendant pled guilty to the AUUW count and was sentenced to three years' imprisonment with 233 days' credit for presentence incarceration and with fines and fees. The State nolle prossed the other charges. Defendant did not file a motion to withdraw his plea and did not appeal. ¶ 4 In July 2016, defendant filed his pro se section 2-1401 petition raising one claim: that the offense of AUUW has been declared facially unconstitutional and void ab initio. The circuit court denied the petition on August 3, 2016, noting that the offense of AUUW based on not having a valid concealed carry license has not been found unconstitutional. ¶ 5 On appeal, defendant raises no issues regarding the denial of his petition. Instead, he contends for the first time that his $100 trauma fund fine (730 ILCS 5/5-9-1.10 (West 2014)) was improperly assessed, he should receive monetary presentence incarceration credit against certain fines, and certain of his fees are actually fines for which he should receive the credit. The State 3 responds that, except for wholly ministerial recognition of fines subject to credit, we lack jurisdiction over these claims as defendant has forfeited them by not raising them in his petition. ¶ 6 Defendant's 233 days of presentencing custody entitle him to up to $1165 credit against his fines, but not his fees, at the statutory $5 per day. 725 ILCS 5/110-14(a) (West 2014). Our supreme court has held that we may grant credit against fines, claimed for the first time on appeal from the disposition of a postconviction petition, if such a grant is a simple ministerial act because the basis for granting credit is clear from the record. People v. Caballero, 228 Ill. 2d 79, 87-88 (2008); see also People v. Brown, 2017 IL App (1st) 150203, ¶¶ 37-39 (following Caballero regarding fines listed as such in trial court order). However, we have held that challenging charges as fines when the trial court order lists them as fees or costs is a substantive claim, not a ministerial correction, and thus does not fall under Caballero. People v. Smith, 2018 IL App (1st) 151402, ¶ 6; Brown, 2017 IL App (1st) 150203, ¶¶ 39-40. We lack independent subject-matter jurisdiction over such substantive claims raised for the first time on appeal from the disposition of a postconviction petition. Brown, 2017 IL App (1st) 150203, ¶ 40; but see People v. Mullen, 2018 IL App (1st) 152306, ¶¶ 33-42. ¶ 7 We have similarly held that, where we have jurisdiction over an appeal from a collateral petition but that petition did not raise a fines or fees claim now being raised on appeal, we have no authority to consider the claim as it is beyond the scope of the appeal. People v. Grigorov, 2017 IL App (1st) 143274, ¶¶ 8-9. We therefore did not consider the Grigorov defendant's claim that "certain of his fines and fees were erroneously assessed." Id. ¶¶ 4, 8. ¶ 8 Brown and Grigorov are consistent with People v. Young, 2018 IL 122598, ¶¶ 26-28, where our supreme court recently held that, absent the broad "upon application" statutory 4 language authorizing presentence incarceration credit against fines at any time (725 ILCS 5/110-14(a) (West 2018)) as recognized in Caballero, our jurisdiction over an appeal from the disposition of a postconviction petition does not extend beyond that judgment to errors in the sentencing order that were not raised in the petition. ¶ 9 We note that, on February 26, 2019, after this appeal was fully briefed, our Supreme Court adopted new Illinois Supreme Court Rule 472, which sets forth the procedure in criminal cases for correcting sentencing errors in, as relevant here, the "imposition or calculation of fines, fees, assessments, and costs" and "application of per diem credit against fines." Ill. S. Ct. R. 472 (a)(1), (2) (eff. Mar. 1, 2019). Rule 472 provides that, effective March 1, 2019, the circuit court retains jurisdiction to correct these errors at any time following judgment in a criminal case, even during the pendency of an appeal. People v. Barr, 2019 IL App (1st) 163035, ¶¶ 5-6 (citing Ill. S. Ct. R. 472 (a) (eff. Mar. 1, 2019)). "No appeal may be taken" on the ground of any of the sentencing errors enumerated in the rule unless that alleged error "has first been raised in the circuit court." Ill. S. Ct. R. 472 (c) (eff. Mar. 1, 2019). ¶ 10 Defendant here did not raise his challenges to the fines and fees order in the circuit court. However, he filed his notice of appeal prior to the effective date of Rule 472 and this court has found the rule applies prospectively. Barr, 2019 IL App (1st) 163035, ¶¶ 6, 8, 15. Thus, in this appeal from the denial of a section 2-1401 petition that raised no claims regarding fines or fees, following Smith, Brown, Grigorov, and Young, we will address only the merits of defendant's claims for ministerial corrections. ¶ 11 Defendant argues, and the State concedes, that he is due credit on $80 in fines listed as such in the trial court's order: $30 for the Children's Advocacy Center, $30 for juvenile 5 expungement, $10 for mental health court, $5 for youth diversion or peer court, and $5 for drug court. 55 ILCS 5/5-1101(d-5), (e), (f), (f-5) (West 2014); 730 ILCS 5/5-9-1.17(a) (West 2014). The parties are correct that these fines should be offset by the credit and, in fact, the fines and fees order correctly reflects that these fines are subject to the credit. However, as the order total does not reflect the $80 credit, we order the ministerial correction of that total. ¶ 12 We lack jurisdiction to consider defendant's claims regarding the other charges against which he seeks credit: the $50 court system charge (55 ILCS 5/5-1101(c) (West 2014)), $25 Court Services (Sheriff) charge (55 ILCS 5/5-1103 (West 2014)), and $15 charge for State Police operations (705 ILCS 105/27.3a(1.5) (West 2014)). The trial court order lists these charges as fees or costs not subject to credit but defendant claims that these charges are subject to the credit because they are fines rather than fees. Thus, defendant raises substantive issues rather than mere ministerial corrections, and we do not have jurisdiction to consider these claims. Brown, 2017 IL App (1st) 150203, ¶¶ 40-41. ¶ 13 Similarly, we lack jurisdiction to consider defendant's claim that the $100 trauma fund charge should be vacated, as this is a claim that "certain of [defendant's] fines and fees were erroneously assessed" that is beyond the scope of this appeal for not being raised in his section 2-1401 petition. Grigorov, 2017 IL App (1st) 143274, ¶¶ 4, 8; Brown, 2017 IL App (1st) 150203, ¶¶ 40-41. 6 ¶ 14 In conclusion, in this appeal from the denial of a section 2-1401 petition that raised no claims regarding fines or fees, we lack jurisdiction to grant defendant the vacatur and credit he seeks beyond our $80 wholly ministerial correction above. ¶ 15 Accordingly, we correct the fines and fees order to reflect credit for the $30 Children's Advocacy Center fine, $30 juvenile expungement fine, $10 mental health court fine, $5 youth diversion or peer court fine, and $5 drug court fine. The judgment of the circuit court is affirmed in all other respects. ¶ 16 Affirmed, order corrected.