People v. Mitchell

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People v. Mitchell

State: Illinois

Court: 4th District Appellate

Docket No: 4-08-0401 Rel

Case Date: 10/15/2009

Preview:NO. 4-08-0401 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES K. MITCHELL, Defendant-Appellant.

Filed 10/15/09

) Appeal from ) Circuit Court of ) Macon County ) No. 07CF185 ) ) Honorable ) Timothy J. Steadman, ) Judge Presiding. _________________________________________________________________ JUSTICE MYERSCOUGH delivered the opinion of the court: In December 2007, defendant, Charles K. Mitchell, pleaded guilty to burglary. In January 2008, the trial court Defendant appeals,

sentenced defendant to a 13-year prison term.

arguing (1) the court erred when it imposed (a) a $4 traffic and criminal conviction surcharge, (b) a $10 anticrime fee, and (c) a $25 Violent Crime Victims Assistance Fund penalty, and (2) the court abused its discretion in sentencing. vacate in part, and remand with directions. I. BACKGROUND In February 2007, the State charged defendant with one count of burglary, a Class 2 felony (720 ILCS 5/19-1(a), (b) (West 2006)), alleging he entered a vacant home with the intent to commit a theft therein. Because defendant had two prior Class We affirm in part,

2 felony convictions, the trial court sentenced him as a Class X offender with a sentencing range of 6 to 30 years' imprisonment.

730 ILCS 5/5-5-3(c)(8), 5-8-1(a)(3) (West 2006). In December 2007, defendant entered an open, nonnegotiated guilty plea. The State's factual basis for the plea

disclosed that in October 2006, someone broke into a vacant home owned by Timothy Davis and stole a circular saw, a jigsaw, and a Sawzall. Blood was found in the home, which police believed came Police sent a blood sample to the Illinois The Illinois

from the intruder.

State Police crime laboratory for processing.

Combined DNA Index System (CODIS) matched the sample taken from the home to a sample previously taken from defendant. A confirm-

atory sample taken directly from defendant also matched the blood found in the home. In January 2008, the trial court held defendant's sentencing hearing. The State called Decatur police officer

Joshua Sheets, who testified in September 2005 he found cannabis and crack cocaine in defendant's vehicle during a traffic stop. The State later charged defendant with possession of a controlled substance in Macon County case No. 2005-CF-1389, which was still pending at the time of the sentencing hearing. The State also called Decatur police officer Troy Phares, who testified regarding another pending felony charge against defendant for resisting arrest, Macon County case No. 2007-CF-1321. Officer Phares testified that while on patrol in Officer

August 2007, he saw defendant walking down the street. - 2 -

Phares knew defendant on sight due to prior interactions and also knew defendant had an outstanding felony warrant for burglary. As Officer Phares approached defendant to arrest him, defendant saw Officer Phares and ran away. During the ensuing foot chase,

Officer Phares sustained a sprained knee and sprained forearm after running into a barbed-wire fence. escape after Officer Phares's injury. Defendant testified he was a drug addict and had been since the age of 20. sentencing.) (Defendant was 44 years old at the time of Defendant was able to

Defendant further testified he only committed Defendant sought treatment as

crimes to support his drug habit.

part of court-ordered probation in the 1990s and stayed drug free for six years afterward. 2004. However, defendant relapsed around

Defendant indicated his desire to get drug treatment in

prison and regain sobriety. During defendant's allocution, he denied Officer Sheets's testimony that marijuana and crack cocaine were found during the traffic stop resulting in case No. 2005-CF-1389. The trial court also examined defendant's presentence investigation report (PSI), which indicates defendant was diagnosed as schizophrenic around 20 years ago. Defendant denied

taking medication or receiving treatment at the time of his arrest. The PSI shows defendant has seven children, who, at the

time of sentencing, ranged in age from 24 years old to 1 month - 3 -

old.

With respect to defendant's drug use, the PSI indicates he

began using marijuana and crack cocaine at 17. The PSI shows defendant has the following felony convictions: (1) retail theft from September 1987, (2) violation of bail bond from October 1988, (3) robbery from April 1990, (4) forgery from March 1992, (5) retail theft from March 1992, (6) residential burglary from March 1992, (7) bringing contraband into a penal institution from May 1993, (8) obstruction of justice from March 1999, (9) two convictions for possession of a controlled substance from May 1999, and (10) burglary from October 2001. Defendant was sentenced to 10 separate prison

terms for those convictions. The PSI concludes that defendant "scored in the maximum range of risk and needs. [Defendant] received his score as a

result of his criminal history, unemployment status, having procriminal associations, self-reported substance abuse, and selfreported mental[-]health problem." The State argued for a sentence of 17 years based upon the aggravation evidence produced at sentencing, as well as defendant's criminal history. Defense counsel recommended a

minimum sentence of six years due to defendant's drug problem and his willingness to seek treatment for that problem. As stated, the trial court sentenced defendant to a 13year prison term and imposed court costs, fines, and fees. - 4 In

its oral pronouncement, the court stated its sentence was based upon the need to protect the public. In aggravation, the court

noted defendant's long-standing drug addiction, failure to seek treatment for schizophrenia, and significant criminal history. The court also stated that it had considered defendant's score in the "'maximum range of risks and needs'" contained in the PSI. In mitigation, the court noted defendant's recent criminal history was sparse and he had admitted guilt. The trial court made three separate rulings regarding the imposition of fees, costs, and fines. In its oral In its

pronouncement, the trial court imposed "court costs."

written sentencing judgment, the trial court imposed both fees and costs. The docket entry entered on the date of defendant's

sentencing states defendant was ordered to pay "court costs" but also ordered that his bond satisfy "fines, court costs, restitution, and [attorney] fees." In May 2008, defendant filed a motion to reconsider sentence, which the trial court denied. This appeal followed. II. ANALYSIS Defendant argues that the trial court erred when it imposed (1) fees not permitted by statute and (2) a 13-year prison sentence. A. Defendant's Fees and Fines - 5 -

Defendant argues the trial court erred when it imposed (1) a $4 traffic and criminal conviction surcharge, (2) a $10 anticrime fee, and (3) a $25 violent crime fee. 1. Traffic and Criminal Conviction Surcharge Defendant argues the $4 penalty is a fine and was improper because it was imposed pursuant to subsection 5-9-1(c-9) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/59-1(c-9) (West 2004)), which the legislature repealed prior to both commission of the offense and sentencing. The State con-

cedes the court had no authority to impose the traffic and criminal conviction surcharge because the legislature repealed the fee in 2005. See 730 ILCS 5/5-9-1(c-9) (West 2006) (leaving We agree that the $4 penalty must be

subsection (c-9) blank).

vacated, although not for the reason defendant proposes and the State accepts. We first note that if the $4 penalty was imposed pursuant to subsection 5-9-1(c-9), its imposition was improper and requires vacatur. However, the clerk imposed the $4 traffic

and criminal conviction surcharge in this case pursuant to subsection 5-9-1(c) of the Unified Code (730 ILCS 5/5-9-1(c) (West 2006)), a permissible basis for the penalty at the time of defendant's commission of the offense and sentencing. A brief

description of the various amendments of section 5-9-1 of the Unified Code (730 ILCS 5/5-9-1 (West 2006)) is necessary to - 6 -

explain our holding. Public Act 93-32 created subsection 5-9-1(c-9) (730 ILCS 5/5-9-1(c-9) (West 2004)), which went into effect in June 2003. Pub. Act 93-32,

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