February 07, 2001

NO. 4-00-0422

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

____________________________________________________________________________________

JUSTICE GARMAN delivered the opinion of the court:

Intervenor James Segrist appeals an order of the circuitcourt of Jersey County denying his motion to vacate a portion of aprobation order. That order applied a cash bond posted by Segristto appointed counsel fees incurred by defendant, Clifford Maxon. We affirm.

The State charged Maxon with numerous felony offenses. In March 1998, the trial court appointed counsel to representMaxon. On May 29, 1998, appellant James Segrist, M.D., posted acash bond for Maxon in the amount of $24,500. The written bailbond did not reflect the source of these funds. On June 26, 1998,a bond assignment was executed by Maxon to Segrist. On December23, 1998, Maxon entered a negotiated plea of guilty and was placedon probation. Conditions included payment of a probation fee of$150, restitution of $4,940, and a fine of $500. The written orderof probation provided that all costs, fines, restitution, andattorney fees were to be paid from the bond posted. The trialcourt ordered appointed counsel to submit an affidavit of timespent in representing Maxon. Counsel's affidavit stated thatcounsel spent a total of 427.25 hours on Maxon's behalf. In hismotion for payment of fees filed on February 11, 1999, counselstated that he charged $45 per hour for his time. He multipliedhis time spent by his hourly charge and asked for fees of$19,226.25 and costs advanced of $54.70, for a total award of$19,280.95.

On January 11, 1999, Segrist filed a motion to vacate aportion of the probation order, alleging that no reimbursement forpublic defender fees should have been taken from the bond posted. Segrist relied on section 113-3.1 of the Code of Criminal Procedureof 1963 (Code) (725 ILCS 5/113-3.1 (West 1998)), which states inpertinent part:

"(a) Whenever under either [s]ection113-3 of this Code or Rule 607 of the IllinoisSupreme Court the court appoints counsel torepresent a defendant, the court may order thedefendant to pay to the [c]lerk of the[c]ircuit [c]ourt a reasonable sum to reimburse either the county or the State for suchrepresentation. In a hearing to determine theamount of the payment, the court shall consider the affidavit prepared by the defendantunder [s]ection 113-3 of this Code and anyother information pertaining to the defendant's financial circumstances which may besubmitted by the parties. Such hearing shallbe conducted on the court's own motion or onmotion of the State's Attorney at any timeafter the appointment of counsel but no laterthan 90 days after the entry of a final orderdisposing of the case at the trial level.

(b) Any sum ordered paid under this[s]ection may not exceed $500 for a defendantcharged with a misdemeanor, $5,000 for adefendant charged with a felony, or $2,500 fora defendant who is appealing a conviction ofany class offense.

(c) The method of any payment requiredunder this [s]ection shall be as specified bythe [trial] [c]ourt. The court may order thatpayments be made on a monthly basis during theterm of representation; however, the sumdeposited as money bond shall not be used tosatisfy this court order. Any sum depositedas money bond with the [c]lerk of the[c]ircuit [c]ourt under [s]ection 110-7 ofthis Code may be used in the court's discretion in whole or in part to comply with anypayment order entered in accordance withparagraph (a) of this [s]ection. The courtmay give special consideration to the interests of relatives or other third parties whomay have posted a money bond on the behalf ofthe defendant to secure his release. At anytime prior to full payment of any paymentorder the court on its own motion or themotion of any party may reduce, increase, orsuspend the ordered payment, or modify themethod of payment, as the interest of fairnessmay require. No increase, suspension, orreduction may be ordered without a hearing andnotice to all parties."

Segrist attached to his motion a copy of a cashier'scheck for $24,500 made payable to the circuit clerk, showingSegrist as the remitter thereof. Segrist alleged that, becauseMaxon had previously been found to be indigent and his bond wasposted by a third party, no reimbursement for the services of thepublic defender should have been made from the bond. The motionasked the trial court to vacate that portion of its order providingfor payment of attorney fees from the bond.

The State filed a motion to dismiss Segrist's motion,alleging that the payment of attorney fees from Maxon's bond waspart of the plea agreement reached between Maxon and the State. Since Segrist was not a party to that agreement, he lacked standingto challenge the trial court's December 23, 1998, probation order.

On February 17, 1999, the trial court denied the State'smotion to dismiss and denied Segrist's motion on the merits. Thecourt entered a reimbursement order, finding the entire bondsubject to application toward payment of costs, fines, restitution,probation fees, and attorney fees. On that same date, appointedcounsel's motion for payment of fees and expenses was allowed andthe amounts ordered paid from the bond.

On March 3, 1999, Segrist filed a motion to reconsider,which was denied. In denying the motion, the trial court statedthat it chose to exercise its discretion in favor of the pleanegotiation. The court suggested that Segrist was naive in postingsuch a large bond and believing that he would get the money back. The court stated its belief that Segrist was not entitled to areturn of the bond money over the rights of the public defender andthe circuit clerk's office. Segrist appealed.

In an order entered under Supreme Court Rule 23 (166 Ill.2d R. 23), this court (1) vacated the trial court's denial ofSegrist's motion to vacate; (2) vacated that portion of theprobation order that required attorney fees to be deducted from thecash bond; (3) vacated the trial court's reimbursement order; and(4) remanded for a hearing pursuant to People v. Love, 177 Ill. 2d550, 563, 687 N.E.2d 32, 38 (1997), with directions that the trialcourt consider Maxon's financial circumstances, the reasonablenessof any reimbursement, the reasonableness of the public defender'sfee and what, if any, consideration should be given to Segrist'sinterests arising from the bond he posted for Maxon. People v.Maxon, No. 4-99-0301, slip order at 9-10 (January 6, 2000)(unpublished order under Supreme Court Rule 23).

At a March 20, 2000, hearing on remand, Maxon testifiedas to his financial condition on December 23, 1998, the date onwhich he entered his guilty plea and was sentenced to probation. He owned a home that was partially constructed and that was beingforeclosed on by Jersey State Bank, the mortgagee. He wasunemployed and had no money in savings or checking accounts. Hewas living in a dump in White Hall. He had a 1989 Lincolnautomobile that was collateral on a note he owed to the Bank ofCalhoun County. At that time, he owed that bank more than $47,000. Several creditors received judgments against him while he wasjailed on the charges in this case. At the time of the hearing,Maxon had suffered a work-related injury and, as a result, was nolonger employed.

John Guntren, Maxon's appointed trial counsel, testifiedconcerning time spent and services rendered to Maxon. He notedthat Maxon was charged with numerous felonies and that he went toa jury trial in one case where he was acquitted of the charge. Numerous bail hearings were held on all of the different charges. The discovery process was "involved" and required Guntren to spendhours sifting through documents regarding alleged insurance fraudclaims and reviewing this discovery with Maxon and his wife. Numerous witnesses were interviewed. Guntren did not have accessto an investigator to assist him. A great deal of legal researchwas necessary. Pretrial motions were filed in many of the cases. His work for Maxon consumed a great deal of his time and he had torefuse other business.

Segrist testified that Maxon had worked on several of hiscars. Segrist did not personally take the bond money to thecircuit clerk's office. Maxon's wife picked up the check. Thus,he did not sign the bond form at the time bond was posted, but hedid sign it later. He expected to get his money back eventually. Following arguments of counsel, the trial court took thematter under advisement. In doing so, the court commented that itfound Guntren's fees to be "imminently reasonable." Maxon's caserequired extraordinary effort on Guntren's part because of thedocumentary evidence involved. The court noted that Guntren hadcharged for his time at the public defender rate of $45 per hour. On April 4, 2000, the trial court entered an order inwhich it stated that, after considering the interests of Segristand the financial circumstances of Maxon, reimbursement to Segristwas not reasonable where the negotiated guilty plea and sentenceincluded payment of Guntren's fees out of the bond. The court thusdenied Segrist's January 11, 1999, motion to vacate. The courtreinstated its prior probation order and its order of disbursemententered on February 17, 1999.

In our prior Rule 23 order in this matter, we remanded onthe narrow issue of the trial court's failure to hold a hearingpursuant to Love, 177 Ill. 2d at 563, 687 N.E.2d at 38. We furtherheld that, under the facts before us, Segrist had standing toobject to this failure. Maxon, slip order at 9. In addition,based upon the record before us in the prior appeal, we questionedthe reasonableness of appointed counsel's stated fee. Maxon, sliporder at 8-9. Upon remand, the trial court considered Maxon'sability to pay counsel fees at the time the reimbursement order wasentered, the reasonableness of appointed counsel's fee, thereasonableness of reimbursement, and the interests of Segrist asthe third party who posted Maxon's bond.

On appeal, Segrist does not dispute the trial court'sfinding that appointed counsel's fees were reasonable. Instead, heargues that, because the trial court found that Maxon had noability to reimburse the county for appointed counsel fees, itshould not have ordered the fees paid out of his bond. In supportof this argument, he cites the Love decision, as well as People v.Webb, 276 Ill. App. 3d 570, 658 N.E.2d 852 (1995).

In Love, 177 Ill. 2d at 563, 687 N.E.2d at 38, thesupreme court held that trial courts are required by the terms ofsection 113-3.1 of the Code to conduct a hearing regarding adefendant's financial circumstances and find an ability to payprior to entering any order of reimbursement for counsel fees. Such a hearing is required even where a cash bail bond has beenposted on the defendant's behalf. If a bail bond has been posted,the trial court should consider whether a third party provided themoney for that bond. Love, 177 Ill. 2d at 563, 687 N.E.2d at 38.The court may, "in its discretion," decide to give specialconsideration to the interests of the third party. Love, 177 Ill.2d at 564, 687 N.E.2d at 38.

Love overruled this court's prior decisions in People v.Hanna, 288 Ill. App. 3d 109, 679 N.E.2d 812 (1997), vacated &remanded with directions, 175 Ill. 2d 539, 688 N.E.2d 309 (1997)(nonprecedential supervisory order), People v. Baker, 195 Ill.App. 3d 785, 552 N.E.2d 421 (1990), and People v. Nunez, 197 Ill.App. 3d 332, 553 N.E.2d 1123 (1990), to the extent that thosedecisions held that posting of a cash bond provides conclusiveevidence of a defendant's ability to pay a reimbursement order,thus eliminating the need for a hearing under section 113-3.1 ofthe Code. Love, 177 Ill. 2d at 564, 687 N.E.2d at 38-39.

In Love, 177 Ill. 2d at 560, 687 N.E.2d at 37, the Stateargued that the existence of a cash bail bond provided conclusiveevidence of a defendant's ability to pay a reimbursement order upto the amount of the bond. The supreme court rejected thatargument, citing its decision in People v. Cook, 81 Ill. 2d 176,181-83, 407 N.E.2d 56, 59-60 (1980), where the court had rejecteda similar argument. Love, 177 Ill. 2d at 561-62, 687 N.E.2d at 37-38. The Love court noted that no basis existed in the language ofsection 113-3.1 of the Code for dispensing with a hearing into thedefendant's financial circumstances simply because a cash bond hadbeen posted. The court further noted that section 113-3.1(c) ofthe Code (725 ILCS 5/113-3.1(c) (West 1994)) makes reference to thepossibility that money deposited as a bail bond may be available tosatisfy an order of reimbursement. Thus, should the trial courtdetermine that reimbursement is appropriate, the court may orderthat the reimbursement amount be paid out of the bond. Love, 177Ill. 2d at 562, 687 N.E.2d at 38.

Contrary to Segrist's belief, Love does not prohibit atrial court from ordering that a cash bond be applied to appointedcounsel fees even if the defendant is found to be indigent. Thesupreme court's discussion of application of a cash bond relatedonly to fulfillment of an order of reimbursement.

Segrist also cites Webb, 276 Ill. App. 3d at 571, 658N.E.2d at 853, a Third District case, in which defendant'sboyfriend, Crawford, posted a $1,500 cash bond on her behalf. Defendant was acquitted of the charge after a jury trial. Thetrial court ordered that the bond money be used to reimburse thecounty for the services of defendant's appointed counsel. Nohearing was held as to defendant's financial circumstances. Through private counsel, defendant and Crawford moved to vacate thereimbursement order. At the hearing, defendant testified that shehad no income or assets. The State's Attorney testified that inthe cases he had prosecuted, no reimbursement order had ever beenentered against an indigent defendant who had not posted bond. Webb, 276 Ill. App. 3d at 571, 658 N.E.2d at 853.

After hearing testimony of defendant's appointed counsel,the trial court found that $1,350 was a reasonable reimbursementfor the counsel's services. It also found that defendant lackedthe ability to pay for those services. However, the court alsonoted that Crawford was on notice that his bond could be used topay fines, costs, and fees. The trial court considered the factthat Crawford had posted the bond from his own funds and reducedthe amount of reimbursement to $800. Webb, 276 Ill. App. 3d at572, 658 N.E.2d at 854.

On appeal, the State argued that the ability to post bonddemonstrated the defendant's financial ability to pay for appointedcounsel's services. Webb, 276 Ill. App. 3d at 573, 658 N.E.2d at854. The appellate court rejected that argument, holding thatsection 113-3.1 of the Code mandates a meaningful hearing into thedefendant's financial circumstances before any reimbursement forappointed counsel's services may be granted. Webb, 276 Ill. App.3d at 574, 658 N.E.2d at 855. The court noted the lack of evidenceshowing that defendant had any funds or foreseeable ability to payattorney fees. The bond money clearly belonged to Crawford. Accordingly, the appellate court found that the trial court's orderrequiring defendant to reimburse the county $800 for appointedcounsel's services was contrary to the manifest weight of theevidence and an abuse of discretion. Webb, 276 Ill. App. 3d at575, 658 N.E.2d at 855.

We disagree with Webb, to the extent that case suggeststhat where a defendant has been found unable to pay a reimbursementorder, the trial court may not utilize a cash bond posted ondefendant's behalf to pay appointed counsel fees. Section 110-7 ofthe Code (725 ILCS 5/110-7 (West 1998)) contemplates that such feesmay be paid out of a bond:

"The [bail bond] form shall also include awritten notice to such person who has providedthe defendant with the money for the postingof bail indicating that the bail may be usedto pay costs, attorney's fees, fines, or otherpurposes authorized by the court and if thedefendant fails to comply with the conditionsof the bail bond, the court shall enter anorder declaring the bail to be forfeited." 725 ILCS 5/110-7(a) (West 1998).

The purpose of a Love hearing is to determine whether thedefendant is personally able to pay reimbursement for appointedcounsel fees. This hearing must be held, regardless of whether acash bond has been posted, as the existence of such a bond does notconclusively demonstrate that the defendant has the ability to pay. If the trial court finds that the defendant does have the abilityto pay and a reimbursement order is entered, the trial court, inits discretion, may order the reimbursement amount paid, in wholeor in part, out of a cash bond. However, a finding that thedefendant lacks the ability to pay appointed counsel fees onlyrelieves the defendant of the personal responsibility to pay suchfees. That finding is irrelevant to the question of whether thetrial court may order the fees to be paid out of a bond. Section113-3.1 of the Code contains no language prohibiting the trialcourt from utilizing a cash bond for payment of attorney fees ifthe defendant is found to be financially unable to pay a reimbursement order. Thus, we reject Segrist's argument that, because thetrial court found defendant to be unable to pay a reimbursementorder, it was foreclosed from utilizing part or all of the bond forpayment of attorney fees.

The trial court complied with our order on remand. Itheld the hearing mandated by section 113-3.1 of the Code andreceived evidence on all issues. It considered Segrist's interestsas owner of the bond money. It found appointed counsel's fees tobe reasonable. We find no abuse of discretion in the trial court'sdecision to order that appointed counsel fees be paid out of thebond.

Accordingly, we affirm the judgment of the trial courtdenying Segrist's motion to vacate and reinstating its probationorder.

Affirmed.

MYERSCOUGH and KNECHT, JJ., concur.