People v. Brown

Digitally signed by

Illinois Official Reports Reporter of Decisions

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accuracy and integrity

of this document

Appellate Court Date: 2017.06.08

14:46:22 -05'00'

People v. Brown, 2017 IL App (1st) 142877

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption LARRY BROWN, Defendant-Appellant.

District & No. First District, First Division

Docket No. 1-14-2877

Filed March 27, 2017

Rehearing denied April 18, 2017

Modified upon

denial of rehearing April 24, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 13-CR-19813; the

Review Hon. Colleen Ann Hyland, Judge, presiding.

Judgment Affirmed; fines, fees, and costs order corrected.

Counsel on Michael J. Pelletier, Patricia Mysza, and Ann B. McLennan, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

Veronica Calderon Malavia, and Paul Colin Kiefer, Assistant State’s

Attorneys, of counsel), for the People.

Panel PRESIDING JUSTICE CONNORS delivered the judgment of the

court, with opinion.

Justices Simon and Mikva concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Larry Brown was convicted of burglary and sentenced

to nine years in prison. On appeal, defendant contends (1) the State failed to prove beyond a

reasonable doubt that he intended to commit a theft, (2) the trial court denied him his right to

present a defense when it excluded certain testimony, (3) his sentence was excessive, and (4)

certain monetary charges should be vacated and other charges should be offset by his

presentence custody credit. We affirm and correct the order assessing fines, fees, and costs.

¶2 I. BACKGROUND

¶3 According to the charging document, defendant knowingly and without authority entered

or without authority remained at 9532 South Hamlin Avenue in Evergreen Park (the South

Hamlin house), which was owned by the Federal Home Loan Mortgage Corporation, with

intent to commit therein a theft. The offense was alleged to have occurred from around

September 7, 2013, through September 18, 2013. At trial, the key issue was defendant’s

intent. The State maintained that defendant set out to steal the South Hamlin house.

Meanwhile, defendant claimed that he did not intend to commit a theft because he believed

he was legally acquiring the South Hamlin house through adverse possession.

¶4 Throughout the trial, various witnesses referred to a collection of documents that

defendant filed with the Cook County recorder of deeds on September 6, 2013. The

documents consisted of the following: (1) a “Non Abandonment and Secured Interest of

Property,” which indicated that notice was given to the Cook County sheriff’s department,

the Federal Bureau of Investigation (FBI), the Chicago police department, the Illinois

Department of Transportation, all lending institutions and their agents, and “Legal

Authorities, to be further named” (Defendant signed this document on September 5, 2013,

and the document stated in part that the South Hamlin house “has not nor will be abandoned”

and that defendant was the “holder in due course and secured party.”); (2) a picture of the

South Hamlin house; (3) a legal description of the South Hamlin house from the Cook

County map department; (4) a receipt from the map department of the Cook County clerk’s

office; (5) an affidavit of adverse possession; (6) an affidavit of adverse possession that

included the Illinois Department of Transportation logo, and stated in part that defendant

acquired title to the property “from Adverse Possession by Torrez Moore dated September 5,

2013, and recorded in the Recorder’s Office of Cook County”; and (7) a notice of claim of

title to real estate.

¶5 For the State, Officer Matthew Lecompte testified that on September 7, 2013, he

encountered defendant in the Evergreen Park police station lobby. Defendant stated that he

had just bought a home and wanted Officer Lecompte to escort him while he changed the

locks. Officer Lecompte declined, explaining that defendant did not need police presence if

he truly owned the property. Officer Lecompte did not tell defendant that he could not move

into the house.

¶6 Robert McDonough, who lived next door to the South Hamlin house, testified that around

7:30 p.m. on September 8, 2013, he observed defendant, a woman, and two children moving

mattresses, bed frames, and other items into the back door of the South Hamlin house. After

McDonough and his wife introduced themselves as defendant’s new neighbors, defendant

said his name was Larry and introduced McDonough to the woman who was with him.

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McDonough stated that there had been a realtor sign on the lawn of the South Hamlin house

on September 8, but the sign was gone on September 9.

¶7 John Collins testified that he lived across the street from the South Hamlin house, which

had been in foreclosure. Collins could not recall how long the South Hamlin house had been

unoccupied. He stated that around 6 p.m. on September 10, 2013, a car pulled into the

driveway of the South Hamlin house. Defendant and another person exited the car and

removed a crowbar from the trunk, which they used to pry open the side door of the garage.

Collins called 911 and the police arrived a short time later.

¶8 Officer James Whelan testified that he went to the South Hamlin house around 6 p.m. on

September 10, 2013, where he observed defendant and another man in the driveway.

Defendant introduced himself and stated he was the owner of the house and had bought it for

back taxes. Officer Whelan recalled that defendant gave him some paperwork, presented

identification, and had a key to the side door of the house, which he opened. According to

Officer Whelan, “you got a key to the house and you got documents saying you own the

house, you own the house.” In the meantime, two other people arrived, Joan and Daniel

Kunz, who also presented documents and stated that they owned the house. Officer Whelan

told the Kunzes to contact their attorney “because he’s got papers, too and I’m not a lawyer.”

¶9 Detective Michael Kmetty testified that on September 17, 2013, he learned of an

ownership dispute relating to the South Hamlin house. Upon investigation, Detective Kmetty

learned that defendant was staying at the house illegally and had illegitimate paperwork.

Detective Kmetty also learned that Joan and Daniel Kunz had legitimate paperwork that

showed they were closing on the house. Subsequently, Detective Kmetty obtained an arrest

warrant for defendant. On September 18, 2013, defendant arrived at the police station, where

he was read Miranda warnings and interviewed. According to Detective Kmetty, defendant

stated that he had obtained adverse possession paperwork from someone named Torrez

Moore and filed the paperwork with the Cook County recorder of deeds. Defendant further

stated that he planned to live in the South Hamlin house forever. Defendant recalled that he

changed the locks on the house by prying them off with a screwdriver and then brought his

belongings inside. Defendant gave Detective Kmetty permission to look through his iPhone,

which contained numerous listings for houses and their prices.

¶ 10 The parties also presented stipulated testimony. It was stipulated that Jim Kennedy, a

realtor and broker, would testify that he was contracted by the Federal Home Loan Mortgage

Corporation to list the South Hamlin house. As part of his responsibilities, he installed a

for-sale sign on the front lawn and placed a lockbox on the building. Kennedy would further

testify that he was never contacted by and did not know a person named Larry Brown.

¶ 11 It was further stipulated that Loris Ryan, a real estate agent, would testify that Joan and

Daniel Kunz made an offer to buy the South Hamlin house on September 6, 2013, and Joan

Kunz signed a contract that same day. The contract was ultimately accepted on September 9,

2013, by Brian Tracy, who acted as the attorney-in-fact for the owner, the Federal Home

Loan Mortgage Corporation.

¶ 12 Additionally, the parties stipulated that Brian Tracy would testify that no one from the

Federal Home Loan Mortgage Corporation was contacted by Larry Brown about the South

Hamlin house. Additionally, no one at the Federal Home Loan Mortgage Corporation was

notified by defendant about his attempt to establish ownership of the South Hamlin house.

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Tracy would also maintain that he had no personal contact with defendant and did not give

defendant permission to take possession and control of the South Hamlin house.

¶ 13 It was further stipulated that Joan Kunz would testify that after signing the contract, she

and her husband went to view the South Hamlin house on September 10, 2013. When she

arrived, defendant was in possession of the house. Joan Kunz would also state that before

September 10, 2013, she had never met defendant and did not have any conversations with

him about the South Hamlin house.

¶ 14 The parties also presented stipulations about defendant’s documents. Peter Karahalios,

the deputy treasurer and chief legal counsel of the Cook County treasurer’s office, would

testify that defendant did not make any payments for real estate taxes owed on the South

Hamlin house. Additionally, the parties stipulated that Dweina Turner, a clerk with the Cook

County recorder of deeds, would testify that the recorder of deeds is responsible for

recording documents pertaining to the transfer of title of real estate, mortgages, and loans,

among other items. Turner would further state that documents that are presented for

recording are not reviewed for their legal purpose and that any document is recorded as long

as it appears to be related to a real property, contains a property index number, and a fee is

paid. The parties also stipulated that Liam Reardon, an assistant State’s Attorney assigned to

the mortgage fraud task force, would testify that he reviewed the documents that defendant

presented to Officer Whelan and determined that the documents had no legal significance as

to establishing ownership of the South Hamlin house.

¶ 15 After the State rested, defense counsel moved for a directed finding, contending that there

was no evidence of wrongful intent. Defense counsel further asserted that all the evidence

showed that defendant was following a path that he believed to be legal. The court denied the

motion.

¶ 16 Testifying in his defense, defendant stated that he first learned about adverse possession

when he was previously incarcerated. According to defendant, adverse possession required

that “you had to take possession of a property. Stay in it for an amount of time openly and

notoriously, exclusive; and after a period of time, you would gain full title to the property.”

Defendant further explained that to gain full title, he had to stay in the property for 20 years

or for 7 years if he paid taxes. Defense counsel and defendant had the following exchange:

“Q. And after you got out of jail, with regard to adverse possession, what did you

do?

A. Well, a cousin of mine said she had acquired property through adverse

possession. I was introduced to Torrez Moore who told me.

MR. JAKALSKI [Assistant State’s Attorney]: Objection to what Torrez Moore

said.

THE COURT: Sustained.

THE WITNESS: Well, I was introduced to—

MR. JAKALSKI: Objection, no question pending.

THE COURT: Sustained.

MR. GROSSMAN [defense counsel]: Well, he can say I was introduced to Torrez

Moore.

THE COURT: Ask another question.”

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¶ 17 Defendant stated that after he was released from prison, he was looking for a home, and

so he started searching Realtor.com for foreclosed bank-owned properties. After defendant

saw that the South Hamlin house was listed as foreclosed and bank-owned, he contacted the

number that was listed on the property. Defendant believed that the South Hamlin house was

abandoned. The following exchange about defendant’s process occurred between defense

counsel and defendant:

“Q. At that point, had you been told by anyone what to do to acquire these

properties?

MR. JAKALSKI: Objection.

THE COURT: Sustained.

Q. What is it that caused you to do what you just testified to?

MR. JAKALSKI: Objection, [Y]our Honor.

THE COURT: Overruled.

THE WITNESS: I was trying to obtain a property for me and my family. I was

told that I could file—

MR. JAKALSKI: Objection to what he was told.

THE WITNESS: Well, I learned—

THE COURT: Hold on. There’s an objection. What is the basis of your objection?

MR. JAKALSKI: Hearsay. I was told. Don’t know by who. What’s the purpose

for the statement?

THE COURT: Your response.

MR. GROSSMAN: Yes, [Y]our Honor. The answer is not to prove the ultimate

truth or falseness of what he was being told, but that information flow, not the truth

[or] falseness of what’s being told.

THE COURT: You can say he spoke to others, but I don’t want to hear what the

information was. So sustained as to what he was told.

***

Q. [Defense counsel:] So you spoke to other; is that correct?

A. Correct.

Q. Then what did you do?

A. I filed paperwork with the recorder of deeds.

Q. And that’s these nine documents ***; is that correct?

A. Correct.

Q. And to the best of your knowledge, that was establishing your right to occupy

the premises?

MR. JAKALSKI: Objection, leading.

THE COURT: Sustained.

Q. [Defense counsel:] What did you believe filing those documents would do for

you?

A. It commenced the period of adverse possession.

Q. After you filed these documents, *** what did you do?

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A. I called the water department and asked them to change the billing over to my

name.

Q. What water department?

A. In Evergreen Park.

Q. Then what did you do?

A. Then I called the police department. I told them I would need an officer to go

with me to change the locks. They instructed me to come into the—

MR. JAKALSKI: Objection to what they said.

THE COURT: Sustained.”

¶ 18 Defendant stated that after the conversation with a policeman, he changed the locks and

took possession of the house. The following day, his girlfriend and her kids moved in, along

with her brother. Defendant further stated that he cut the grass after he moved in. Defendant

denied that he told Officer Whelan that he bought the house for back taxes and maintained

that he told the officer that he had filed an adverse possession claim.

¶ 19 Defendant also testified about his aforementioned documents. Defendant stated that he

had submitted the documents to the FBI in Chicago, the Cook County sheriff’s office, the

Evergreen Park police department, the Illinois Department of Transportation, and the

Chicago police department. The following exchange then occurred between defendant and

defense counsel:

“Q. Why to the FBI?

A. I was told that I was to give notice to everyone.

Q. Why to the Sheriff of Cook County?

MR. JAKALSKI: Objection to hearsay.

THE COURT: Sustained.

MR. GROSSMAN: Except it addresses the purpose of sending

a document.

MR. JAKALSKI: Objection.

THE COURT: Sustained. It’s hearsay.

Q. [Defense Counsel:] But it was tendered to give notice, is that correct?

A. To give notice.”

¶ 20 Defendant went on to state that he sent the documents to the Evergreen Park police

department to give them notice because the house was located in Evergreen Park. Defendant

explained that he sent the documents to the Chicago police department to give notice as well,

even though the house was in Evergreen Park. Defendant further stated that he sent the

documents to the Illinois Department of Transportation because it deals with all commerce in

the state.

¶ 21 Defendant further testified that he was living at the South Hamlin house when Joan and

Daniel Kunz arrived on September 10. Defendant stated that he showed his documents to

Daniel Kunz, the Kunzes’ real estate agent, and an Evergreen Park health inspector, who he

also gave a tour of the house. Defendant further stated that he was told he had to file transfer

stamps and get a certificate of occupancy and a safety inspection, and so the following week

he went to the village hall to pick up the relevant information. At a later point, defendant

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received a call from his girlfriend’s mother, whereupon he went to the police station and was

arrested.

¶ 22 Additionally, defendant testified about text messages that were found on his phone

between him and a number he received from the Realtor.com listing for the South Hamlin

house. The messages were as follows:

“LISTING: Waiting on signed documents from seller. I guess, closing in next few

weeks.

DEFENDANT: Well I’m working on acquiring the deed as we speak. When I get

it can we sit down?

LISTING: You can call me, sure, but home is under contact and will only remain

on MLS until all signatures making it an executed contract.

DEFENDANT: Well, I’m filing a claim on the property with the recorder of

deeds in the morning.”

Defendant also sent a message that read, “That property is currently bank-owned, correct.”

¶ 23 According to defendant, the message that the house was under contract meant that

defendant still had an opportunity to acquire the property. Defendant maintained that the

bank only had constructive possession of the house, indicating that the bank had not actually

taken possession of the property.

¶ 24 To impeach defendant’s testimony, the State entered into evidence certified statements of

conviction that indicated that defendant had two prior burglary convictions.

¶ 25 In closing, the State asserted that defendant used deception to obtain unauthorized control

of the South Hamlin house. The State recounted what it asserted was evidence of defendant’s

guilty mind: he always appeared ready to present bogus documents, portions of the

documents were untrue, he lied to Officer Lecompte that he bought the property, and he lied

to Officer Whelan that he paid the back taxes on the property. According to the State,

defendant would not have lied if he believed he had ownership by adverse possession. The

State also noted that defendant entered the house with a screwdriver and that defendant knew

the house was bank-owned. Additionally, the State asserted that adverse possession was

“designed for people who lived out in the country” and defendant’s various notices were

meaningless. The State characterized defendant’s efforts as “a bunch of subterfuge.”

¶ 26 Defense counsel contended in closing that whether defendant was entitled to adverse

possession was not relevant. Defense counsel asserted that defendant thought he was acting

legally and noted that no one told defendant to leave the house. Defense counsel further

stated that defendant believed he had to file his documents to establish his rights to the house.

¶ 27 Ultimately, defendant was found guilty of burglary. In its ruling, the court stated in part

that it had reviewed the arguments of the parties and the allegation that defendant “was

legally in possession of the property due to adverse possession.” The court also noted that the

matter came down to a credibility question. The court stated that defendant’s documents were

lacking in content and did not support the notion that defendant had continued, uninterrupted

possession of the property. The court additionally found that the adverse possession defense

“was a huge scam” and stated it did not believe defendant “one bit.”

¶ 28 Subsequently, defendant filed a motion to dismiss, or in the alternative, for a new trial.

Defendant contended that the State failed to prove he had the requisite criminal intent for

burglary. According to defendant, his actions showed that whether or not he had the legal

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right to take the house, he believed his actions were authorized under law and he did what he

believed was necessary to legally acquire the house. Defendant also asserted that he relied on

legal authority that he believed allowed him to act as he did. Additionally, defendant

contended that the indictment should be dismissed and he should be released because his

right to a speedy trial was violated. Following a hearing, the court denied defendant’s

motion.

¶ 29 Turning to sentencing matters, a presentence investigation report (PSI) indicated that

defendant was 33 years old and had completed some college. According to the PSI,

defendant had received a full academic scholarship after high school to attend Iowa State

University, where his major was computer engineering. Defendant later left that school and

went on to attend DeVry Institute. The PSI also stated that defendant had worked full-time at

the Ford assembly plant in Chicago from February 2012 until he was arrested in September

2013. Previously, defendant worked for Southern Electric Coil in Indiana. The PSI further

stated that while he was at the Cook County jail, defendant completed a culinary arts class

and received a certificate in sanitation. Additionally, the PSI noted that defendant was in a

long-term relationship with the mother of his 12-year-old son.

¶ 30 At the sentencing hearing, the State noted defendant’s criminal history and stated that he

was a Class X offender. The State asserted that defendant was convicted of burglary in 2009,

for which he was sentenced to two years’ probation. The State also noted that defendant

violated that probation when he committed another burglary, for which he was sentenced to

5½ years in prison and was discharged on March 27, 2013. The State asserted that in total,

defendant committed three burglaries in about five years. Additionally, the State contended

that the burglary here involved an entire home and the victims included the owner and

prospective buyers. The State asked for a sentence of 10 years.

¶ 31 Defense counsel noted that defendant participated in numerous programs while in jail.

Defense counsel also stated that defendant was working full-time when the incident occurred

and he had reestablished a relationship with the mother of his child. Defense counsel further

asserted that defendant could likely go back to his job when he was released. Additionally,

defense counsel contended that defendant had been very open about his conduct.

¶ 32 Defendant also presented a statement at the sentencing hearing. Defendant stated that he

did not have any ill intent and that the house had been abandoned. Defendant further stated

that he thought he was acting legally and had tried to provide a home for his family.

¶ 33 In sentencing defendant to nine years in prison as a Class X offender, the court

acknowledged that the State had presented certified copies of defendant’s convictions, which

were both Class 2 felonies. The court further stated that it considered the evidence presented

in aggravation and the mitigation evidence about defendant’s participation in programs while

incarcerated. According to the court, however, defendant lacked rehabilitative potential, as he

committed this burglary only six months after his release from prison for a previous burglary.

The court characterized the instant offense as “a scam which this [d]efendant thought he

could get away with.” Additionally, the court found it insulting that defendant represented

that the buyers of the house were at fault. The court stated that it was “obviously

preposterous” that defendant tried to act as if he rightfully belonged in the house. The court

asserted that in fashioning the sentence, it considered defendant’s acts and statements, as well

as his failure to take responsibility. The court concluded that:

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“When I considered all those facts as well as the mitigation that’s been presented

with regards to the [d]efendant’s family, his prior employment, and what he’s done

while in the custody of the Department of Corrections, it’s the sentence of this Court

you will be sentenced to nine years in the Illinois Department of Corrections.”

¶ 34 The parties agreed that defendant had spent 364 days in presentence custody. Defendant

was assessed various charges, including a $5 electronic citation fee, $5 court system fee, $15

state police operations fee, $2 State’s Attorney records automation fee, $2 public defender

records automation fee, $15 automation fee, and $15 document storage fee. In all,

defendant’s fines, fees, and costs totaled $479, which was reduced to $399 by defendant’s

presentence custody credit.

¶ 35 Defendant subsequently appealed.

¶ 36 II. ANALYSIS

¶ 37 A. Sufficiency of the Evidence

¶ 38 On appeal, defendant first contends that the State failed to prove defendant guilty beyond

a reasonable doubt because he never intended to commit a theft. Defendant argues that he set

out on a misguided, but earnest attempt to acquire a home for his family through adverse

possession. Defendant asserts that he was trying to follow the law of adverse possession and

continuously attempted to possess the house openly and notoriously without trying to conceal

his actions. Defendant further states that he thought the house was abandoned and no one

ever told him to leave the property, which reaffirmed his belief that he was acting properly.

Defendant additionally argues that the trial court misunderstood his defense and the State’s

closing argument reinforced that misunderstanding.

¶ 39 When reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is

whether, after viewing the evidence in the light most favorable to the State, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.

People v. Sutherland, 155 Ill. 2d 1, 17 (1992). The reviewing court must not retry the

defendant. People v. Cunningham, 212 Ill. 2d 274, 279-80 (2004). Instead, “[t]he reviewing

court must carefully examine the record evidence while bearing in mind that it was the fact

finder who saw and heard” the witnesses. Id. at 280. In a bench trial, it is for the trial judge to

determine the credibility of the witnesses, weigh and draw reasonable inferences from the

evidence, and resolve any conflicts in the evidence. People v. Slim, 127 Ill. 2d 302, 307

(1989). At the same time, a reviewing court considers all of the evidence, and not just the

evidence convenient to the State’s theory of the case. People v. Wheeler, 226 Ill. 2d 92, 117

(2007). Additionally, a reviewing court “may affirm on any grounds in the record, regardless

of whether the trial court relied on those grounds or whether the trial court’s reasoning was

correct.” Vulpitta v. Walsh Construction Co., 2016 IL App (1st) 152203, ¶ 22. We “will not

reverse a criminal conviction unless the evidence is so unreasonable, improbable, or so

unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” (Internal quotation

marks omitted.) Sutherland, 155 Ill. 2d at 17.

¶ 40 As charged here, a person commits burglary when without authority he knowingly enters

or without authority remains within a building with intent to commit therein a theft. 720

ILCS 5/19-1 (West 2012). At issue is only whether the evidence was sufficient to prove that

defendant intended to commit a theft. Intent may be proven through circumstantial evidence.

People v. Rudd, 2012 IL App (5th) 100528, ¶ 14. Relevant considerations include the time,

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place, and manner of entry into the premises, the defendant’s activity within the premises,

and any alternative explanations for his presence. People v. Maggette, 195 Ill. 2d 336, 354

(2001). Further, the question is not whether any possible innocent explanation exists, but

whether the evidence was sufficient to allow a rational trier of fact to infer that the defendant

intended to commit theft when he entered the building. See Rudd, 2012 IL App (5th) 100528,

¶ 14.

¶ 41 Although we agree with defendant that whether he actually met the elements of adverse

possession is not relevant, a brief summary of adverse possession is helpful. To establish title

by adverse possession, the claimant must prove possession of a property for a 20-year period

and the “possession must have been (1) continuous; (2) hostile or adverse; (3) actual; (4)

open, notorious, and exclusive; and (5) under claim of title inconsistent with that of the true

owner.” (Internal quotation marks omitted.) Brandhorst v. Johnson, 2014 IL App (4th)

130923, ¶ 37; 735 ILCS 5/13-101 (West 2012). Alternatively, a claimant can show actual and

adverse possession of lands for seven years, contemporaneously with paying taxes under

color of title. 735 ILCS 5/13-109 (West 2012); Malone v. Smith, 355 Ill. App. 3d 812, 816

(2005).

¶ 42 To be sure, there was evidence that defendant was indeed trying to adversely possess the

South Hamlin house. Defendant filed documents with the Cook County recorder of deeds and

testified that he notified various government agencies of his plans. Evidence was presented

that defendant acted openly. According to Robert McDonough, who lived next door,

defendant introduced himself and moved his belongings into the house during the evening

hours. Defendant reported that he cut the grass. Additionally, defendant maintained that he

was trying to obtain a property for himself and his family and that he believed that filing the

paperwork would commence the period of adverse possession.

¶ 43 At the same time, there was also evidence that the adverse possession claim was a ruse,

and that defendant’s true intentions were to steal the house from the prospective buyers. Per

the text messages presented at trial, defendant was informed that the house was under

contract and that it would close in a few weeks. Officer Whelan testified that defendant told

him that he had bought the house for back taxes, which we acknowledge that defendant

denied. Officer Lecompte testified that defendant told him defendant had just bought the

house and wanted an escort while defendant changed the locks. John Collins, another

neighbor, testified that he observed defendant and another person use a crowbar to pry open a

door on the garage. As for the differing accounts of defendant’s statements, it was for the

trier of fact to resolve inconsistencies across the witnesses’ testimony. People v. Brazziel,

406 Ill. App. 3d 412, 423 (2010). Moreover, even if defendant’s version of events was the

only one, the trial court did not need to believe it, and could consider other facts and

circumstances in the record that tended to contradict the defendant’s story or at least raised

serious questions about its probability. People v. Price, 158 Ill. App. 3d 921, 926-27 (1987).

Based on defendant’s conflicting statements and suspicious behavior, the trial court could

reject defendant’s claim that he made an earnest attempt to acquire the house, and instead

find that defendant used his adverse possession documents as cover for his plan to steal the

house. Further, “[t]he trier of fact is best equipped to judge the credibility of witnesses, and

due consideration must be given to the fact that it was the trial court *** that saw and heard

the witnesses.” Wheeler, 226 Ill. 2d at 114-15. The case essentially hinged on whether the

trial court believed that defendant’s adverse possession claim was sincere. The court did not

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believe so, and other evidence indicated that defendant intended to commit a theft of the

house. We reject defendant’s challenge to the sufficiency of the evidence of his intent.

¶ 44 B. Excluded Testimony

¶ 45 Next, defendant asserts that the trial court denied him of his right to present a defense

when it prevented him from testifying about how and what he learned about adverse

possession. Defendant states that defense counsel repeatedly tried to elicit testimony about

how and what defendant learned about adverse possession, but the trial court improperly

excluded the statements as hearsay. Defendant argues that the testimony at issue did not go to

the truth of the matter asserted and would have explained why defendant acted as he did.

Defendant contends that by preventing this testimony, the trial court precluded defendant

from establishing that he did not possess the necessary intent for burglary.

¶ 46 “A criminal defendant is constitutionally guaranteed a meaningful opportunity to present

a complete defense.” (Internal quotation marks omitted.) People v. Burgess, 2015 IL App

(1st) 130657, ¶ 133. As noted above, defendant asserts that the trial court prevented him from

presenting a complete defense by improperly excluding certain testimony as hearsay, which

is defined as an out-of-court statement offered to establish the truth of the matter asserted.

People v. Dunmore, 389 Ill. App. 3d 1095, 1106 (2009). The primary rationale for excluding

hearsay testimony “is the inability of the opposition to test the testimony’s reliability through

cross-examination of the out-of-court declarant.” People v. Weatherspoon, 394 Ill. App. 3d

839, 850 (2009). Relevant here, “[a]n out-of-court statement offered to prove its effect on a

listener’s mind or to show why the listener subsequently acted as he did is not hearsay and is

admissible.” (Internal quotation marks omitted.) People v. Sorrels, 389 Ill. App. 3d 547, 553

(2009). This court reviews a trial court’s decision about the admission of hearsay for an

abuse of discretion. In re Jovan A., 2014 IL App (1st) 103835, ¶ 20.

¶ 47 Defendant points to the following portions of testimony that he states were improperly

excluded: (1) what Torrez Moore told defendant after defendant’s release; (2) after defendant

saw a listing for the South Hamlin house on Realtor.com and contacted a number, whether

defendant had been told by anyone what to do to acquire a property and what he was told to

file; (3) what the police told defendant when he told the police he needed an escort to change

the locks; and (4) why he sent paperwork to the Cook County sheriff. The State responds that

defendant forfeited the claim that the trial court deprived him of the right to present a defense

because he failed to raise it in his motion for a new trial.

¶ 48 To preserve an alleged error for appeal, a party must both object at trial and raise the

issue in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Recognizing

that defense counsel did not raise the claim at issue in his motion for a new trial, defendant

proposes three grounds for review: as a constitutional issue that was raised at trial, as plain

error, and on the basis that his counsel was ineffective for failing to preserve the alleged

error.

¶ 49 Our supreme court has stated that three types of claims are not subject to forfeiture for

failing to file a posttrial motion: (1) constitutional issues that were properly raised at trial and

may be raised later in a postconviction petition, (2) challenges to the sufficiency of the

evidence, and (3) plain errors. People v. Cregan, 2014 IL 113600, ¶ 16 (citing Enoch, 122 Ill.

2d at 190). See also People v. Almond, 2015 IL 113817, ¶ 54. The constitutional issues

exception is rooted in judicial economy. Cregan, 2014 IL 113600, ¶ 18. “If a defendant were

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precluded from raising a constitutional issue previously raised at trial on direct appeal,

merely because he failed to raise it in a posttrial motion, the defendant could simply allege

the issue in a later postconviction petition.” Id.

¶ 50 The key phrase here is “properly raised at trial.” Here, the constitutional issues exception

is not available to defendant because he did not raise a constitutional issue at trial. Defendant

asserts that he was denied his constitutional right to present a defense and that a

constitutional issue was raised during the State’s motion in limine before trial and through

defense counsel’s argument via the State’s objections at trial. The record indicates otherwise.

The State’s motion in limine sought to bar any testimony from defendant about other

properties that were obtained in a similar fashion that defendant tried to obtain the South

Hamlin house. The State asserted that it had never been provided with the names of the

owners or addresses for those properties, information about those properties was irrelevant,

any such testimony would be hearsay, and the State had not had an opportunity to investigate

those properties. In response, defense counsel stated that the only testimony on that topic

would be that defendant had a family member who acquired two properties and connected

him to the person who helped him acquire the South Hamlin house. Defense counsel stated

that the testimony would “just be part of what happened, which would be leaving out a piece

if it wasn’t put in there.” The court ultimately found the State’s motion premature. In the

exchange about the motion in limine, defense counsel noted that not including certain

testimony “would be leaving out a piece,” but defense counsel did not raise a constitutional

issue. Defendant also asserts that a constitutional issue was raised during the State’s

objections to portions of defendant’s testimony that defendant states were improperly

excluded. However, defense counsel’s arguments about why certain testimony should be

admitted related to whether the statements were hearsay or not. Again, there was no mention

that to exclude those statements would deny defendant his constitutional right to present a

defense. Further, our review of the record does not indicate that defendant ever asserted that

he was denied his constitutional right to present a defense.

¶ 51 For the constitutional issue exception to apply, the defendant must have properly raised a

constitutional issue at trial. People v. Burnett, 2015 IL App (1st) 133610, ¶ 79. Because

defendant did not assert that excluding defendant’s testimony would prevent him from

presenting a defense, the constitutional issue exception is not available to defendant. See id.

¶¶ 72, 76-79 (where the defendant objected to a statement at trial on the grounds that the

statement did not fit various statutory exceptions to the hearsay rule, the constitutional issue

exception did not apply to the defendant’s claim on appeal that by admitting the statement

into evidence, his sixth amendment right to confront and cross-examine witnesses against

him was violated).

¶ 52 We next address defendant’s request for plain error review. “[T]he plain-error doctrine

allows a reviewing court to consider unpreserved error when (1) a clear or obvious error

occurred and the evidence is so closely balanced that the error alone threatened to tip the

scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear

or obvious error occurred and that error is so serious that it affected the fairness of the

defendant’s trial and challenged the integrity of the judicial process, regardless of the

closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The first step is

to determine whether any error occurred. People v. Thompson, 238 Ill. 2d 598, 613 (2010).

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¶ 53 Here, we agree with defendant that the trial court should have admitted the statements at

issue because they were not hearsay—they were offered to show why defendant acted as he

did. See Weatherspoon, 394 Ill. App. 3d at 850 (statement offered to explain why the witness

acted in a particular way is not hearsay). The testimony about Torrez Moore would have

explained why he began the adverse possession process. The testimony about whether

defendant was told what to do and file would have explained why took the steps he did. The

testimony about what the police told defendant about changing the locks would have

explained why he went to the police station. Further, the testimony about the Cook County

sheriff was intended to explain why defendant sent the documents to him.

¶ 54 However, plain error requires that the error was reversible error, which did not occur

here. See People v. Naylor, 229 Ill. 2d 584, 602, 605 (2008) (stating that absent reversible

error, there is no plain error, and considering whether the trial court committed reversible

error before determining whether the evidence at trial was closely balanced). Improper

exclusion of testimony about a defendant’s intent or motive that is essential to his defense is

reversible error unless other sufficient evidence of his intent or motive is admitted at trial.

People v. Miller, 327 Ill. App. 3d 594, 598 (2002). See also People v. Upton, 230 Ill. App. 3d

365, 371 (1992) (improper exclusion of state-of-mind testimony by an accused that is

essential to his defense will ordinarily constitute reversible error unless other sufficient

evidence of intent is admitted at trial). Here, even though the trial court excluded some of

defendant’s testimony about why he acted as he did, there was ample additional testimony

related to defendant’s alleged attempt to acquire the house through adverse possession.

Defendant testified that he learned about adverse possession in prison and that his cousin had

acquired a property through adverse possession. Defendant also described his understanding

of what he had to do to acquire a house by adverse possession. Additionally, defendant

testified that he searched for a home on Realtor.com and thought the South Hamlin house had

been abandoned. Defendant further stated that he thought he still had the opportunity to

acquire the house. Defendant also testified that he filed documents because he thought that

would begin the period of adverse possession and that he sent the documents to several

government agencies to give notice. Overall, defendant presented much testimony in support

of his claim that he believed that he was acting legally via adverse possession. Under these

circumstances, the trial court’s exclusion of the testimony noted above was not reversible

error. Compare Weatherspoon, 394 Ill. App. 3d at 851-52 (no reversible error where,

although the defendant was not permitted to testify that a group threatened him or that he felt

fearful as a result, the alleged threat was presented through other means and the evidence and

arguments were sufficient to acquaint the jury with an explanation of his flight that was

compatible with his innocence), with Miller, 327 Ill. App. 3d at 598-99 (reversible error

where there was no explanation allowed for the defendant’s conduct). As there was no

reversible error, there was no plain error.

¶ 55 Defendant also asserts that his counsel was ineffective for failing to argue in a posttrial

motion that the trial court should reverse its earlier exclusion of his testimony. To succeed on

a claim of ineffective assistance of counsel, a defendant must show that his counsel’s

performance was deficient and that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). As for prejudice, a defendant must show

that counsel’s errors were so serious as to deprive the defendant of a fair trial whose result is

reliable. Id. Further, there must be a reasonable probability that, but for counsel’s errors, the

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result of the proceeding would have been different. People v. Patterson, 192 Ill. 2d 93, 122

(2000). A reasonable probability is “ ‘a probability sufficient to undermine confidence in the

outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694). An ineffective assistance claim can be

disposed of on the grounds that the defendant was not prejudiced, without deciding whether

counsel’s performance was deficient. People v. Caballero, 126 Ill. 2d 248, 260 (1989).

¶ 56 Here, we find that defendant’s counsel was not ineffective because defendant was not

prejudiced by counsel’s failure to raise the hearsay issue in a posttrial motion. As noted

above, defendant was given ample opportunity to present his defense that he believed he was

legally pursuing adverse possession. Thus, counsel’s failure to preserve the error did not

deprive defendant of a fair trial.

¶ 57 Because defendant cannot claim the constitutional issue exception, the hearsay issue does

not constitute plain error, and counsel was not ineffective on this point, defendant has

forfeited his argument. See Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL

110505, ¶ 26 (forfeiture applies when an issue is not raised in a timely manner).

¶ 58 C. Excessive Sentence

¶ 59 Next, defendant contends his nine-year sentence was excessive in light of various

mitigating factors. Defendant notes that he thought he was following the procedures required

to adversely possess the South Hamlin house. Additionally, defendant states that the house

was vacant and bank-owned when defendant occupied it. According to defendant, the trial

judge also did not adequately consider defendant’s rehabilitative potential. Defendant

acknowledges his past burglaries, but asserts that he had strong family ties, a full-time job,

and accomplishments while incarcerated. Defendant contends that his mitigation evidence

was not reflected in his sentence.

¶ 60 The Illinois Constitution states that “[a]ll penalties shall be determined both according to

the seriousness of the offense and with the objective of restoring the offender to useful

citizenship.” Ill. Const. 1970, art. I, § 11. The trial court has broad discretionary powers in

imposing a sentence, and the trial court’s decision is entitled to great deference. People v.

Stacey, 193 Ill. 2d 203, 209 (2000). This reflects the circumstance that the trial court is

normally in a better position than a reviewing court to consider such factors as credibility,

demeanor, general moral character, mentality, social environment, habits, and age. People v.

McCain, 248 Ill. App. 3d 844, 850 (1993). This court will not disturb a sentence that falls

within the statutory limits unless the trial court abused its discretion. People v. Brooks, 297

Ill. App. 3d 581, 585 (1998).

¶ 61 The State asserts, and defendant recognizes, that defendant’s sentencing claim would

ordinarily be forfeited because defense counsel did not file a motion to reconsider the

sentence. See 730 ILCS 5/5-4.5-50(d) (West 2012) (“A defendant’s challenge to the

correctness of a sentence or to any aspect of the sentencing hearing shall be made by a

written motion filed with the circuit court clerk within 30 days” after the sentence is

imposed.). Defendant urges this court to review his excessive sentence claim for plain error

and contends that his counsel was ineffective for failing to preserve the matter.

¶ 62 To establish plain error in the sentencing context, a defendant must show either that (1)

the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious

as to deny the defendant a fair sentencing hearing. People v. Hillier, 237 Ill. 2d 539, 545

(2010). Defendant also asserts that sentencing issues are excepted from the doctrine of

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waiver because they affect a defendant’s substantial rights, citing People v. Owens, 377 Ill.

App. 3d 302, 304 (2007). We decline the invitation to shortcut the plain error analysis. To

clarify, the alleged error here was forfeited rather than waived. See Palm, 2013 IL 110505,

¶ 26 (forfeiture applies when an issue is not raised in a timely manner). More to the point, the

principle that sentencing errors are always reviewable as plain error was rejected by People

v. Rathbone, 345 Ill. App. 3d 305, 310-11 (2003) (“it is not a sufficient argument for plain

error review to simply state that because sentencing affects the defendant’s fundamental right

to liberty, any error committed at that stage is reviewable as plain error”). Other cases have

followed Rathbone, and we do so here as well. See, e.g., People v. Hanson, 2014 IL App

(4th) 130330, ¶¶ 28-29 (noting the court has declined to automatically apply the plain error

doctrine to forfeited sentencing claims); People v. Ahlers, 402 Ill. App. 3d 726, 731-32

(2010) (following Rathbone). Defendant must meet the requirements of the plain error

doctrine to avoid forfeiture. See People v. Smith, 321 Ill. App. 3d 523, 534-35 (2001) (stating

that the defendant must demonstrate that his sentence amounted to a plain error to circumvent

waiver).

¶ 63 As noted above, the first step of plain error review is determining whether any error

occurred. Thompson, 238 Ill. 2d at 613. Here, there was no error because defendant’s

nine-year sentence was not an abuse of discretion. Due to his background, defendant was

sentenced as a Class X offender, which carries a sentencing range of 6 to 30 years. 730 ILCS

5/5-4.5-95(b), 5-4.5-25(a) (West 2012). A sentence within the statutory limits will be deemed

excessive and an abuse of discretion “where the sentence is greatly at variance with the spirit

and purpose of the law, or manifestly disproportionate to the nature of the offense.” Stacey,

193 Ill. 2d at 210. While the trial court must consider rehabilitation, the trial court does not

need to give more weight to the goal of restoring the defendant to useful citizenship than it

places on the seriousness of the offense. People v. Johnson, 206 Ill. App. 3d 542, 551 (1990).

Further, while the trial court may not disregard mitigating evidence, it may determine the

weight to attribute to such evidence. People v. Markiewicz, 246 Ill. App. 3d 31, 55 (1993).

¶ 64 Here, the record indicates that the trial court considered mitigating evidence, but

determined that it was outweighed by other factors. In announcing the sentence, the trial

court stated that it had considered mitigating evidence, such as defendant’s participation in

programs while incarcerated, his family ties, and his prior employment. However, the court

found that defendant lacked rehabilitative potential, stating that defendant committed the

instant burglary only six months after his release from prison for a previous burglary. The

court also stated that defendant failed to take responsibility and that his conduct amounted to

a scam. It was the trial court’s responsibility to strike the appropriate balance between

rehabilitating defendant and the seriousness of the offense. Johnson, 206 Ill. App. 3d at

551-52. Additionally, defendant has the burden to show that the trial court did not consider

the rehabilitative evidence and mitigating factors before it. Brazziel, 406 Ill. App. 3d at 434.

We also note that where relevant mitigating evidence is before the court, we presume the

court considered it, absent some indication in the record to the contrary other than the

sentence itself. People v. Dominguez, 255 Ill. App. 3d 995, 1004 (1994). Here, the record

indicates that the trial court considered mitigating evidence, but gave it less weight than other

factors, which the trial court was entitled to do. This court may not substitute its judgment for

that of the trial court merely because it would have weighed the various factors differently.

Stacey, 193 Ill. 2d at 209.

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¶ 65 Defendant also urges this court to compare his circumstances to those of the defendant in

another case, People v. Center, 198 Ill. App. 3d 1025 (1990). We decline to do so, as our

supreme court has rejected an approach that compares sentences between defendants in

unrelated cases. See People v. Fern, 189 Ill. 2d 48, 56 (1999). The trial court here did not

abuse its discretion in sentencing defendant. As there is no error, there cannot be plain error

either. See Thompson, 238 Ill. 2d at 613.

¶ 66 Defendant further contends that his counsel was ineffective for failing to file a motion to

reconsider the sentence. As noted above, to succeed on an ineffective assistance of counsel

claim, a defendant must show that his counsel’s performance was deficient and that the

deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. We reiterate that

to show prejudice, there must be a reasonable probability that but for counsel’s errors, the

result of the proceeding would have been different. Patterson, 192 Ill. 2d at 122.

Additionally, a claim can be disposed of on the ground that the defendant was not prejudiced

by counsel’s alleged error without deciding whether counsel’s performance was deficient.

Caballero, 126 Ill. 2d at 260. Here, there is not a reasonable probability that the sentence

would have been different if counsel had filed a motion to reconsider the sentence. A motion

to reconsider the sentence would not have changed the result where the mitigating evidence

that defendant highlights was considered by the trial court at the sentencing hearing.

¶ 67 Overall, because there is no plain error and counsel was not ineffective, defendant’s

challenge to his sentence is forfeited.

¶ 68 D. Fines and Fees

¶ 69 Finally, defendant challenges certain charges that were imposed. Defendant contends that

this court should vacate the $5 electronic citation fee and $5 court system fee. Defendant also

asserts that this court should grant $5-per-day credit for time served to offset the $15 state

police operations fee, $2 public defender records automation fee, $2 State’s Attorney records

automation fee, $15 automation fee, and $15 document storage fee.

¶ 70 Defendant did not raise the propriety of the charges in the trial court, and ordinarily, the

matter would be forfeited. Generally, to preserve a claim of a sentencing error, a defendant

must make a contemporaneous objection and file a written postsentencing motion. Hillier,

237 Ill. 2d at 544-45. However, the rules of waiver and forfeiture also apply to the State.

People v. Reed, 2016 IL App (1st) 140498, ¶ 13. The State does not raise forfeiture, and so

we will address the merits of defendant’s claims. Id. We also note that per Illinois Supreme

Court Rule 615(b)(1), we may reverse, affirm, or modify the judgment or order from which

the appeal is taken without remand. We review the propriety of assessed fees and fines de

novo because the matter raises a question of statutory interpretation. People v. Price, 375 Ill.

App. 3d 684, 697 (2007).

¶ 71 As for the electronic citation fee and court system fee, we find, and the State concedes,

that they should be vacated because they do not apply to burglaries. The electronic citation

fee is to be paid by a defendant “in any traffic, misdemeanor, municipal ordinance, or

conservation case upon a judgment of guilty or grant of supervision.” 705 ILCS 105/27.3e

(West 2012). The court system fee is to be paid by a defendant “on a judgment of guilty or a

grant of supervision for violation of the Illinois Vehicle Code *** or violations of similar

provisions contained in county or municipal ordinances committed in the county.” 55 ILCS

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5/5-1101(a) (West 2012). Burglary does not fall into the categories listed in either statute. As

a result, we vacate those charges.

¶ 72 Next, defendant asserts that he is entitled to $5-per-day credit for time served against the

state police operations fee, public defender records automation fee, State’s Attorney records

automation fee, automation fee, and document storage fee.

¶ 73 Section 110-14(a) of the Code of Criminal Procedure provides that anyone incarcerated

on a bailable offense who does not supply bail and against whom a fine is levied on

conviction of that offense is allowed a credit of $5 per day. 725 ILCS 5/110-14(a) (West

2012). Whether defendant is entitled to presentence custody credit depends on whether the

charges at issue are fees or fines, which is a matter of statutory of interpretation that we

review de novo. People v. Jones, 223 Ill. 2d 569, 580 (2006). The label used by the

legislature for a given charge is not necessarily definitive. Id. at 583. Instead, we follow the

framework set out in People v. Graves, 235 Ill. 2d 244 (2009), for deciding whether a charge

is a fee or fine. “A ‘fee’ is defined as a charge that ‘seeks to recoup expenses incurred by the

state,’ or to compensate the state for some expenditure incurred in prosecuting the

defendant.” Id. at 250 (quoting Jones, 223 Ill. 2d at 582). “A ‘fine’ *** is ‘punitive in nature’

and is ‘a pecuniary punishment imposed as part of a sentence on a person convicted of a

criminal offense.’ ” (Internal quotation marks omitted.) Id. (quoting Jones, 223 Ill. 2d at

581). “[T]he most important factor is whether the charge seeks to compensate the state for

any costs incurred as the result of prosecuting the defendant.” Id.

¶ 74 As for the state police operations fee (705 ILCS 105/27.3a(1.5) (West 2012)), we find,

and the State concedes, that it is a fine and therefore it is offset by defendant’s presentence

custody credit. See People v. Maxey, 2016 IL App (1st) 130698, ¶ 141; People v. Moore,

2014 IL App (1st) 112592, ¶ 46.

¶ 75 Next, we turn to the State’s Attorney records automation fee (55 ILCS 5/4-2002.1(c)

(West 2012)) and public defender records automation fee (55 ILCS 5/3-4012 (West 2012)).

Defendant contends these charges are fines. The State’s Attorney records automation fee is:

“to be paid by the defendant on a judgment of guilty or a grant of supervision for a

violation of any provision of the Illinois Vehicle Code or any felony, misdemeanor,

or petty offense to discharge the expenses of the State’s Attorney’s office for

establishing and maintaining automated record keeping systems. The fee shall be

remitted monthly to the county treasurer, to be deposited by him or her into a special

fund designated as the State’s Attorney Records Automation Fund. Expenditures

from this fund may be made by the State’s Attorney for hardware, software, research,

and development costs and personnel related thereto.” 55 ILCS 5/4-2002.1(c) (West

2012).

¶ 76 Reviewing courts have found that this charge is a fee. See People v. Taylor, 2016 IL App

(1st) 141251, ¶ 29 (stating that charge is compensatory rather than punitive); People v.

Warren, 2016 IL App (4th) 120721-B, ¶ 115 (finding that per the plain language of the

statute, the assessment is intended to reimburse State’s Attorneys for expenses related to

automated record-keeping systems, and so the assessment is a fee); Reed, 2016 IL App (1st)

140498, ¶ 16 (stating that charge is compensatory in nature, and finding that the State’s

Attorney would have utilized its automated record keeping systems in prosecuting the

defendant when it filed charges with the clerk’s office and made copies of discovery, which

were tendered to the defense); People v. Rogers, 2014 IL App (4th) 121088, ¶ 30 (stating that

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charge is a fee because it is intended to reimburse the State’s Attorneys for their expenses

related to automated record-keeping systems). We recognize that a contrary result was

reached in People v. Camacho, 2016 IL App (1st) 140604, ¶¶ 50-56, which found that the

State’s Attorney and public defender records automation assessments were fines.

Nonetheless, we will follow the weight of authority that holds that the State’s Attorney

records automation fee is indeed a fee. As such, defendant may not offset that charge with

presentence custody credit.

¶ 77 Turning to the public defender records automation fee, this charge is:

“to be paid by the defendant on a judgment of guilty or a grant of supervision for a

violation of any provision of the Illinois Vehicle Code or any felony, misdemeanor,

or petty offense to discharge the expenses of the Cook County Public Defender’s

office for establishing and maintaining automated record keeping systems. The fee

shall be remitted monthly to the county treasurer, to be deposited by him or her into a

special fund designated as the Public Defender Records Automation Fund.

Expenditures from this fund may be made by the Public Defender for hardware,

software, research, and development costs and personnel related thereto.” 55 ILCS

5/3-4012 (West 2012).

¶ 78 This court has found that because the statutory language of the public defender records

automation fee is identical to that of the State’s Attorney records automation fee except for

the name of the organization, there is no reason to distinguish between the two statutes, and

thus the public defender charge is a fee as well. Maxey, 2016 IL App (1st) 130698, ¶ 144.

Nonetheless, we vacate the public defender records automation fee because defendant was

represented by private counsel at trial. Taylor, 2016 IL App (1st) 141251, ¶ 30.

¶ 79 Lastly, we turn to the automation fee and document storage fee, which defendant

contends are both fines. As for the automation fee, the Clerks of Courts Act states:

“The expense of establishing and maintaining automated record keeping systems in

the offices of the clerks of the circuit court shall be borne by the county. To defray

such expense in any county having established such an automated system or which

elects to establish such a system, the county board may require the clerk of the circuit

court in their county to charge and collect a court automation fee ***.” 705 ILCS

105/27.3a(1) (West 2012).

¶ 80 As for the document storage fee, the Clerks of Courts Act states:

“The expense of establishing and maintaining a document storage system in the

offices of the circuit court clerks in the several counties of this State shall be borne by

the county. To defray the expense in any county that elects to establish a document

storage system and convert the records of the circuit court clerk to electronic or

micrographic storage, the county board may require the clerk of the circuit court in its

county to collect a court document fee ***.” 705 ILCS 105/27.3c(a) (West 2012).

¶ 81 This court has found that the automation and document storage charges are fees because

they “are compensatory and a collateral consequence” of a conviction. People v. Tolliver,

363 Ill. App. 3d 94, 97 (2006). Defendant asserts that the basis for the Tolliver decision

cannot survive our supreme court’s more recent decision in Graves, 235 Ill. 2d at 250-51.

However, Tolliver used the same framework as was set forth in Graves for determining

whether a charge is a fee or fine. See Tolliver, 363 Ill. App. 3d at 96-97 (stating that a fee is a

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charge for labor or services and is compensatory in nature, while a fine is a pecuniary

punishment imposed as part of a criminal sentence); Graves, 235 Ill. 2d at 250 (stating that a

fee compensates the state for some expenditure incurred in prosecuting the defendant, while a

fine is a pecuniary punishment imposed as part of a sentence on a person convicted of a

criminal offense). Tolliver is consistent with Graves, and as such, we follow its finding that

the automation and document storage charges are fees that cannot be offset by presentence

custody credit.

¶ 82 In sum, we vacate the $5 electronic citation fee, $5 court system fee, and $2 public

defender records automation fee. The $15 state police operations fee is offset by defendant’s

presentence custody credit. With these corrections, defendant’s fines, fees, and costs total

$372.

¶ 83 III. CONCLUSION

¶ 84 For the foregoing reasons, the judgment of the circuit court is affirmed and we order the

clerk of the circuit court to correct the order assessing fines, fees, and costs.

¶ 85 Affirmed; fines, fees, and costs order corrected.

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