People v. Braden

2018 IL App (1st) 152295

FIRST DIVISION

February 26, 2018

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

No. 1-15-2295

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 07904
)
ARMON BRADEN, ) Honorable
) Martin Agran,
Defendant-Appellant. ) Judge Presiding.

JUSTICE MIKVA delivered the judgment of the court, with opinion.
Presiding Justice Pierce and Justice Simon concurred in the judgment and opinion.

OPINION

¶1 Armon Braden pled guilty to felony murder. His conviction was predicated on an armed

robbery in which the victim died from injuries inflicted by one of Mr. Braden’s codefendants.

After imposing a negotiated 22-year sentence on Mr. Braden, the trial court gave insufficient

admonishments as to what Mr. Braden must do to perfect an appeal, including which motion he

would need to file to withdraw his plea and vacate the judgment against him. Because of that, we

remand this case to the trial court for proper admonishments and, following the admonishments,

to allow Mr. Braden the opportunity to file the proper postplea motions if he so chooses. We also

modify the fines and fees order in Mr. Braden’s case.
No. 1-15-2295

¶2 I. BACKGROUND

¶3 On May 13, 2011, Mr. Braden and three codefendants were charged with multiple counts

of first degree murder, home invasion, armed robbery, and aggravated kidnapping. The

indictment alleged that, on or about April 12, 2011, the codefendants met at the home of the

victim George Nellessen, father of codefendant Matthew Nellessen, where they bound George

Nellessen to a chair, gagged him, robbed him of his wallet, and forced him to sign a check

payable to his son. Mr. Braden brought a BB gun to the house that he used to threaten George

Nellessen into compliance. After robbing the victim, codefendant Matthew Nellessen retrieved a

baseball bat, struck his father in the head multiple times, and then stabbed him to death.

¶4 On November 21, 2014, Mr. Braden agreed to plead guilty to one count of first degree

murder—specifically felony murder predicated on an armed robbery—in exchange for a

nolle prosequi of the remaining counts and the State’s recommendation of a 22-year prison

sentence. The trial court explained to Mr. Braden the charges and his right to plead not guilty,

confirming that Mr. Braden understood his rights and was voluntarily relinquishing them with

his plea. The trial court explained Mr. Braden’s right to a jury trial and confirmed his desire to

give up that right. The trial court then warned Mr. Braden of the possible penalties for first

degree murder, including a 60-year sentence with a possible extended-term penalty of 60 to 100

years, along with a potential fine and several years of mandatory supervised release. After

confirming that no one had threatened or promised anything to Mr. Braden, the court asked him

if he was pleading guilty of his own free will, and Mr. Braden indicated that he was. The State

provided the factual basis for the plea agreement, including Mr. Braden’s role in the events

leading to George Nellessen’s kidnapping, robbery, and death. After hearing the factual basis,

the trial court found that Mr. Braden’s plea was freely and voluntarily made and ordered a

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presentence investigation.

¶5 Mr. Braden was sentenced on January 30, 2015. After reviewing the presentence

investigation report, the trial court assessed the relevant aggravating and mitigating factors and

sentenced Mr. Braden to the agreed-upon 22 years of imprisonment, with 3 years of mandatory

supervised release and day-for-day credit for the time Mr. Braden had already been incarcerated.

¶6 The trial court then admonished Mr. Braden as follows:

“If you seek to challenge the sentence or any aspect of the sentencing hearing

prior to taking an appeal, you must file in the trial court within 30 days of today’s date a

written motion asking the court to reconsider the sentence imposed or reconsider any

challenges to the sentence hearing. You must set forth all of the reasons that you’re

challenging [the] sentencing hearing.

If the motion to reconsider your sentence is granted, a new sentence hearing will

be conducted. Anything you fail to put in your written motion will be waived for all time.

In order to preserve your right to appeal your sentence or the sentencing hearing,

you must file a notice of appeal with the Clerk of the Circuit Court within 30 days of the

entry of the order disposing of your motion to reconsider.

You also have a right to a transcript of the proceedings of this case. If you cannot

afford to pay because you are indigent, a copy of the transcript of the proceedings, as well

as the services of an attorney will be provided to you free of charge.

Do you understand your appeal rights, sir?”

Mr. Braden indicated that he understood the trial court’s admonishments, and his counsel

confirmed with the trial court that Mr. Braden had served 1386 days in custody since his arrest,

for which he would receive credit.

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¶7 The trial court also signed an order assessing fines, fees, and costs, including a $5

electronic citation fee and a $250 DNA ID system fee, a $5 state police operations fee, a $25

court services (sheriff) fee, a $15 automation fee, a $15 document storage fee, a $2 public

defender records automation fee, and a $2 state’s attorney records automation fee.

¶8 On February 25, 2015, Mr. Braden filed a “Motion to Vacate Plea of Guilty,” with an

accompanying certificate. In the motion, he stated that he pled guilty to murder, that he was

sentenced to be incarcerated for 22 years, that his plea ought to be vacated because “the

defendant’s plea was involuntary because he was coerced,” and that he was indigent and desired

the trial court to appoint counsel to represent him in the presentation of his motion. The motion

includes the signature of the assistant public defender who had represented Mr. Braden

throughout the proceedings in the trial court, Caroline Glennon, with the notation “for ∆” next to

her signature. Below the signature is an unsigned affidavit of Mr. Braden. The motion has the

date stamp of the clerk of the court.

¶9 The next page of the record is labeled “Rule 604(d) Certificate of Defense Counsel.” It is

unsigned and also has the February 25, 2015, date stamp of the clerk of the court. The certificate

states as follows:

“1. That I was the attorney of record for the defendant.

2. That I have consulted with Armon Braden, in person, by phone or via mail to

ascertain his contentions of error in the entry of the guilty plea or in the sentence.

3. That pursuant to those consultations, I, in good faith prepared the attached

motion to vacate the guilty plea after having examined the court file.

4. That a transcript of plea proceedings has been examined.

5. I have made any amendments to the motion necessary for adequate presentation

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of any defects in said proceedings.”

Below the blank signature line is typed “Assistant Public Defender.” As the State notes, the

motion to vacate the guilty plea, the affidavit, and the certificate all appear to be in the same type

face and they were clearly all filed on the same day.

¶ 10 The record contains no written motion to withdraw Mr. Braden’s postplea motion to

vacate his guilty plea. The record does, however, include an order, dated March 17, 2015, and

signed by the trial judge, that indicates it was prepared by Ms. Glennon. That order says:

“Defense counsel for Armon Braden formally withdraws defendant’s motion to vacate his plea

filed on 2-25-15. Mr. Braden has conferred with his defense attorneys and no longer wishes to

proceed on his motion to withdraw guilty plea.” There is no indication that Mr. Braden was

present for entry of that order, and there is no transcript from any proceedings on that date.

¶ 11 On August 20, 2015, Mr. Braden filed a pro se “Late Notice of Appeal,” which we

treated as a motion to file a late notice of appeal and allowed. That pro se notice marked the

“Date of Judgment” as “January 30, 2015,” the date of Mr. Braden’s sentencing. On December

12, 2016, appointed appellate counsel sought to amend the late notice of appeal to reflect the

judgment date of “March 17, 2015,” which was the date the trial court ordered Mr. Braden’s

postplea motion withdrawn. We granted the motion to amend the notice of appeal.

¶ 12 II. JURISDICTION

¶ 13 Under Illinois Supreme Court Rule 606(c) (eff. Feb. 6, 2013), we have the authority to

allow a late notice of appeal, based upon a motion filed at any time within the six months

following the original notice of appeal deadline. We have jurisdiction over Mr. Braden’s

challenge to the trial court’s January 30, 2015, sentencing order because Mr. Braden’s pro se

August 20, 2015, notice, which we treated as a motion for leave to file a late notice of appeal,

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No. 1-15-2295

was filed within six months of the 30-day deadline to appeal his sentence. The timely filing of a

notice of appeal is the only jurisdictional step required to initiate appellate review. People v.

Lewis, 234 Ill. 2d 32, 37 (2009).

¶ 14 As noted above, the amended notice of appeal states that this is an appeal from the

judgment order of March 17, 2015. That was the order that allowed Mr. Braden’s purported

motion to withdraw his motion to vacate his guilty plea. The late notice of appeal was also filed

within the six-month deadline for appealing that order.

¶ 15 The State argues that we lack jurisdiction over the March 17, 2015, order because it is not

final and appealable. However, as Mr. Braden points out, the January 30, 2015, sentencing order

could not be appealed while the motion to vacate the guilty plea was pending. Thus, the January

30, 2015, sentencing order actually became appealable on March 17, 2015, when the motion to

vacate the guilty plea was no longer pending. For that reason, it was appropriate for Mr. Braden

to amend the notice of appeal.

¶ 16 Because we do not reach the issue of whether the trial court erred in allowing Mr. Braden

to withdraw his motion to vacate his guilty plea, for the reasons we discuss below, we need not

consider the State’s argument that we lack jurisdiction to rule on that issue.

¶ 17 III. ANALYSIS

¶ 18 Mr. Braden asks us to remand his case to the trial court with the opportunity to file new

postplea motions on the grounds that (a) the trial court failed to give him the proper Illinois

Supreme Court Rule 605(c) (eff. Oct. 1, 2001) admonishments regarding withdrawal of his guilty

plea, (b) his defense counsel failed to comply with Illinois Supreme Court Rule 604(d) (eff. Feb.

6, 2013) in the certificate accompanying his motion to withdraw his guilty plea, and (c) the trial

court abused its discretion or denied him due process by entering its order allowing withdrawal

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No. 1-15-2295

of his Rule 604(d) motion when Mr. Braden was not present in court. He also argues that certain

fines and fees were erroneously assessed against him or should be offset by his presentence

incarceration credit.

¶ 19 We agree with Mr. Braden that the trial court failed to give him the appropriate

admonishments. Although Mr. Braden filed a timely motion to vacate that plea, he then appears

to have withdrawn that motion. This leaves us unpersuaded that Mr. Braden suffered no

prejudice from the deficiency in the admonishments. We therefore remand this case to the trial

court for proper admonishments and an opportunity for Mr. Braden to file postplea motions if he

so desires. This effectively resolves the first three issues raised by Mr. Braden and eliminates any

need to address Mr. Braden’s claims that the this case should be remanded because of an

improper Rule 604(d) certificate and that the trial court erred in allowing his counsel to withdraw

his motion to vacate his guilty plea without him present. We also direct the clerk of the court to

correct the order assessing fines and fees.

¶ 20 A. This Case Must Be Remanded for Proper Rule 605(c) Admonishments

¶ 21 Illinois Supreme Court Rules 604 and 605 address guilty pleas and are “meant to mesh

together not only to ensure that defendants’ constitutional rights are protected, but also to avoid

abuses by defendants.” People v. Wilk, 124 Ill. 2d 93, 103 (1988). Rule 604(d) requires that a

defendant bring any claim of error regarding a guilty plea or sentence first to the trial court.

People v. Foster, 171 Ill. 2d 469, 471 (1996). That rule provides in relevant part as follows:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the

defendant, within 30 days of the date on which sentence is imposed, files in the trial court

a motion to reconsider the sentence, if only the sentence is being challenged, or, if the

plea is being challenged, a motion to withdraw the plea of guilty and vacate the

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No. 1-15-2295

judgment.” Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013).

¶ 22 The purpose of Rule 604(d) is “to ensure that before a criminal appeal can be taken from

a guilty plea, the trial judge who accepted the plea and imposed sentence be given the

opportunity to hear the allegations of improprieties that took place outside the official

proceedings.” Wilk, 124 Ill. 2d at 104. Although “discovery that a defendant has failed to file a

timely Rule 604(d) motion in the circuit court does not deprive [us] of jurisdiction” over the

appeal, it precludes us from considering the appeal on the merits. People v. Flowers, 208 Ill. 2d

291, 301 (2003). Where a defendant has failed to file a motion to withdraw his guilty plea, we

must dismiss the appeal. Id.

¶ 23 Rule 604(d) presumes, however, that a defendant was sufficiently admonished of the

steps needed to perfect his appeal. “Dismissal of an appeal based on a defendant’s failure to file

the requisite motions in the trial court would violate due process if the defendant did not know

that filing such motions was necessary.” Id.

¶ 24 Rule 605(c) stipulates the points on which the trial court must admonish a defendant after

entering a negotiated guilty plea:

“In all cases in which a judgment is entered upon a negotiated plea of guilty, at the time

of imposing sentence, the trial court shall advise the defendant substantially as follows:

(1) that the defendant has a right to appeal;

(2) that prior to taking an appeal the defendant must file in the trial court, within

30 days of the date on which sentence is imposed, a written motion asking to have the

judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds

for the motion;

(3) that if the motion is allowed, the plea of guilty, sentence and judgment will be

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vacated and a trial date will be set on the charges to which the plea of guilty was made;

(4) that upon the request of the State any charges that may have been dismissed as

a part of a plea agreement will be reinstated and will also be set for trial;

(5) that if the defendant is indigent, a copy of the transcript of the proceedings at

the time of the defendant’s plea of guilty and sentence will be provided without cost to

the defendant and counsel will be appointed to assist the defendant with the preparation

of the motions; and

(6) that in any appeal taken from the judgment on the plea of guilty any issue or

claim of error not raised in the motion to vacate the judgment and to withdraw the plea of

guilty shall be deemed waived.

For the purposes of this rule, a negotiated plea is one in which the prosecution has

bound itself to recommend a specific sentence, or a specific range of sentence, or where

the prosecution has made concessions relating to the sentence to be imposed and not

merely to the charge or charges then pending.” Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001).

Mr. Braden and the State agree that his guilty plea in exchange for the State’s recommendation

of a 22-year sentence is a “negotiated plea,” as defined by Rule 605(c).

¶ 25 As the term “substantially” in Rule 605(c) suggests, the trial court “need not use the exact

language of the rule,” but “must not leave out or misrepresent any of the rule’s substance.”

(Emphasis in original.) People v. Anderson, 309 Ill. App. 3d 417, 421 (1999); People v.

Dominguez, 2012 IL 111336, ¶ 22. “If the trial court fails to give the admonishments set forth in

Rule 605 and the defendant subsequently attempts to appeal without first filing the motions

required by Rule 604(d), the appeal is not dismissed.” Flowers, 208 Ill. 2d at 301. Instead, the

appropriate course is to remand the cause to the trial court for proper admonishments.

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Dominguez, 2012 IL 111336, ¶ 11. Whether the trial court complied with Rule 605(c) is an issue

we review de novo. Id. ¶ 13.

¶ 26 Mr. Braden argues the trial court’s admonishments in this case were insufficient because,

although the court thoroughly described the steps needed for Mr. Braden to “challenge the

sentence or any aspect of the sentencing hearing prior to taking an appeal,” it failed to admonish

him regarding the steps necessary to withdraw his guilty plea or to vacate the judgment imposed

on Mr. Braden in the event that he challenged his guilty plea on appeal.

¶ 27 The State’s first response is that remand is unnecessary because the trial court’s

admonishments “substantially complied with Rule 605(c),” in that “they conveyed the substance

of the rule and put defendant on notice of the procedural steps required to challenge his guilty

plea and perfect his appeal.” The State relies on Dominguez, 2012 IL 111336, ¶¶ 5, 54, in which

our supreme court affirmed a defendant’s conviction on a guilty plea even though the trial

court’s Rule 605(c) admonishments did not repeat the rule verbatim.

¶ 28 But the admonishments in Dominguez, unlike those given by the trial court in this case,

included warnings that the defendant had the “ ‘right to return to the courtroom within 30 days to

file motions to vacate [his] plea of guilty and/or reconsider [his] sentence’ ”; notice that the

“ ‘motions must be in writing and contain all the reasons to support them’ ” and that “ ‘[a]ny

reasons not contained therein will not be preserved for purposes of appeal’ ”; a warning that

“ ‘[s]hould [the defendant’s] motion to vacate [his] plea of guilty be granted, [his] plea of guilty

and the judgment *** entered thereon [would] be vacated, meaning erased’ ” and that the “ ‘case

[would] be set back down on the trial calendar for further proceedings’ ”; and an admonishment

that if the defendant wished to file a notice of appeal after denial of his motions and could not

afford an attorney, he would be provided “ ‘an attorney free of charge, along with the transcripts

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necessary for those purposes.’ ” Id. ¶ 5. In addition, the defendant in Dominguez was provided a

“written form signed by defendant acknowledging he understood the Rule 605 admonishments,

which did track the actual language of the rule.” Id. ¶ 43. After determining that “strict”

compliance with Rule 605(c) (i.e., a verbatim reading) was unnecessary, so long as the trial court

conveyed the “substance” of the rule, our supreme court found that the oral admonishments

given in that case, combined with the verbatim written rule signed by the defendant, amounted to

substantial compliance with Rule 605(c). Id. ¶¶ 22, 37-54.

¶ 29 There was no similar “substantial compliance” here. When the trial court handed down

Mr. Braden’s sentence, it admonished him only of the steps needed to appeal his sentence or

sentencing hearing. It did not, either orally or in writing, tell him what he needed to do to

challenge his guilty plea. This is quite different than what occurred in Dominguez. See id. ¶ 54.

Rather, we think this case is more analogous to People v. Perry, 2014 IL App (1st) 122584,

¶¶ 16-17, in which we remanded the cause because the trial court’s admonishments to the

defendant failed to address several of the six listed points in Rule 605(c) and further found that

“the admonishments were *** at times unclear.” As with the defendant in Perry, Mr. Braden was

not provided the substance of the rule’s warnings and remand is therefore necessary to allow the

trial court to comply with Rule 605(c). Dominguez, 2012 IL 111336, ¶ 11.

¶ 30 The State’s other argument is that, even if the admonishments were deficient, Mr. Braden

“suffered no prejudice because he nevertheless filed a timely motion.” While a timely motion to

vacate a guilty plea could certainly moot the concern about the improper admonishments, in this

case Mr. Braden’s Rule 604(d) motion was later withdrawn. While Mr. Braden, like any other

defendant, was certainly free to withdraw a motion, the circumstances surrounding the

withdrawal of Mr. Braden’s motion to vacate his guilty plea in this case leave us far from assured

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that he suffered no prejudice from the trial court’s deficient Rule 605(c) admonishments.

¶ 31 The order “allowing” Mr. Braden to withdraw his motion to vacate his guilty plea was

entered at a proceeding at which he was not present. There is no transcript from that court date,

but since he was not present, it is clear that he was not warned on that court date that by

withdrawing the motion to vacate his plea he was closing the door to any appellate challenge to

his plea deal. Just as there could be a causal link between deficient admonishments and the

failure to file a motion to vacate the plea, there is an obvious potential for a causal link between

the deficient Rule 605(c) admonishments and Mr. Braden’s later withdrawing the motion that

needed to be on file if he wanted to appeal his guilty plea.

¶ 32 There are several circumstances specific to this case that further undermine the State’s

“no prejudice” argument. First, there was no written motion to withdraw the motion to vacate the

guilty plea filed. The only record revealing that his Rule 604(d) motion was withdrawn comes

from a trial court order, which reads only that “Defense counsel for Armon Braden formally

withdraws defendant Braden’s motion to vacate his plea filed on 2-25-15. Mr. Braden has

conferred with his defense attorneys and no longer wishes to proceed on his motion to withdraw

guilty plea.” The State emphasizes that the order appears to have been prepared by Ms.

Glennon—Mr. Braden’s appointed counsel when he pled guilty—implying that Mr. Braden had

communicated with Ms. Glennon. We have no assurance however, based on this record, that Mr.

Braden was notified that his counsel would be filing this motion to withdraw the motion to

vacate his guilty plea and certainly no understanding as to what Mr. Braden was told about the

consequences of filing a motion to withdraw the motion to vacate the plea. Moreover, as we

noted in the facts, Mr. Braden was not in court on March 17, 2015, when the order was entered,

and there is no transcript from that date in the record. Finally, the record does not even contain a

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court order reappointing Ms. Glennon to represent Mr. Braden on his postplea motion, so it is

unclear whether any attorney had authority to act on his behalf.

¶ 33 Second, Mr. Braden’s motion to vacate his plea was accompanied by an unsigned

attorney certificate that purported to accord with Rule 604(d) but did not. This deficient

certificate further illustrates the absence of any clarity in this record that Mr. Braden acted with

the advice of counsel or with a full understanding of the need to preserve his objections to his

guilty plea in the trial court.

¶ 34 The text of Rule 604(d), provided, at the time of Mr. Braden’s motion to vacate his guilty

plea, in relevant part as follows:

“The motion shall be in writing and shall state the grounds therefor. When the motion is

based on facts that do not appear of record it shall be supported by affidavit. *** The trial

court shall then determine whether the defendant is represented by counsel, and if the

defendant is indigent and desires counsel, the trial court shall appoint counsel. *** The

defendant’s attorney shall file with the trial court a certificate stating that the attorney has

consulted with the defendant either by mail or in person to ascertain defendant’s

contentions of error in the sentence or the entry of the plea of guilty, has examined the

trial court file and report of proceedings of the plea of guilty, and has made any

amendments to the motion necessary for adequate presentation of any defects in those

proceedings.” Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013).

¶ 35 Mr. Braden’s Rule 604(d) certificate was not signed by any attorney, although it had a

signature line for an attorney. The motion to vacate the guilty plea did not include any support by

affidavit or certificate for Mr. Braden’s claim that his plea was coerced, as Rule 604(d) requires.

¶ 36 The record is unclear as to who exactly authored the Rule 604(d) motion and certificate,

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filed together on February 25, 2015. The State suggests that the motion and certificate were both

filed together pro se and, although the motion bears counsel’s signature, she simply filed the

papers as a courtesy to Mr. Braden. We agree with the State that this is what appears to have

occurred. But this sequence of events only further undermines the State’s “no prejudice”

argument.

¶ 37 As the State recognizes, Rule 604(d) conceives of a process in which a defendant—

frequently pro se—prepares a motion to withdraw a guilty plea and vacate the judgment against

him. When, as in this case, the defendant requests counsel, counsel is then appointed if the

defendant is indigent. Id. The defendant’s attorney then files a certificate stating that she and the

defendant have consulted regarding any alleged errors in the sentencing or guilty plea, and the

attorney amends the motion as needed “for adequate presentation of any defects in those

proceedings.” Id. This certificate was filed with, rather than after, the motion and contains

nothing to suggest that Mr. Braden consulted with counsel since it does not even bear an

attorney’s signature. The attorney’s role in this case, from what we can discern from the record,

may have been limited to filing Mr. Braden’s pro se motion on his behalf.

¶ 38 Ultimately, we are not confident that Mr. Braden was made aware of the procedural steps

needed to challenge his guilty plea, which he maintained was the product of coercion. His filing

of a timely motion with an incongruous unsigned certificate attached, which was later withdrawn

outside of Mr. Braden’s presence and without a written motion to withdraw the motion to vacate,

provides us with no assurance that Mr. Braden understood the need for that motion to perfect his

appeal. Because the admonishments that Mr. Braden received did not satisfy Rule 605(c), we

remand the cause to the trial court for compliance with that rule, and to give Mr. Braden an

opportunity to file postplea motions, after he is properly admonished.

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¶ 39 This remand renders moot any separate argument that Mr. Braden makes about his

entitlement to relief because the Rule 604(d) certificate was deficient or should have been drafted

in accordance with the newer 2017 version of the rule. The remand also renders moot Mr.

Braden’s claim that he was denied due process by the court’s entering an order allowing him to

withdraw his motion to vacate the guilty plea without him being present. As noted above, this

also moots the State’s jurisdictional argument as to the March 17, 2015, order. In remanding for

proper admonishments, Mr. Braden will have an opportunity to file new postplea motions, fully

apprised of his obligations to do so.

¶ 40 B. Fines and Fees

¶ 41 1. The Electronic Citation and DNA Fees

¶ 42 Mr. Braden asks us to direct the clerk of the circuit court to vacate the electronic citation

fee and the DNA fee levied upon him. Mr. Braden acknowledges that “defense counsel did not

object to the imposition of [the electronic citation and DNA] fees, or include them in a post-trial

motion.” However, the State does not argue Mr. Braden forfeited this issue and instead concedes

that the two fees were improperly assessed and should be vacated. In particular, the parties agree

that we ought to vacate the $5 electronic citation fee (see 705 ILCS 105/27.3e (West 2014))

because that fee does not apply to felony convictions. People v. Moore, 2014 IL App (1st)

112592, ¶ 46. In addition, they agree that the $250 DNA fee (see 730 ILCS 5/5-4-3(j) (West

2014)) was improper because Mr. Braden has a prior felony conviction for robbery. When a

defendant has a prior felony conviction and was already registered in the DNA database before

this case, imposition of the DNA fee is improper. People v. Marshall, 242 Ill. 2d 285, 303

(2001). We agree and vacate the imposition of those fees.

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¶ 43 2. The Assessments Not Offset by Presentence Incarceration Credit

¶ 44 Mr. Braden also asks us to offset certain assessments he alleges were improperly imposed

as “fees” when they were actually “fines” subject to offset by presentence incarceration credit.

“Any person incarcerated on a bailable offense who does not supply bail and against whom a

fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so

incarcerated upon application of the defendant.” 725 ILCS 5/110-14(a) (West 2014). The parties

do not dispute that Mr. Braden served 1386 days in custody, which amounts to $6930 in credit

available to offset fines levied against him. See People v. Jones, 223 Ill. 2d 569, 580 (2006).

¶ 45 The credit operates to offset only fines, not fees, thus “whether defendant was entitled to

the credit against any charge imposed on him turns solely on whether that charge constituted a

‘fine’ or a ‘fee.’ ” Id. Our supreme court differentiated the two in that, “[b]roadly speaking, a

‘fine’ is a part of the punishment for a conviction, whereas a ‘fee’ or ‘cost’ seeks to recoup

expenses incurred by the state—to compensate the state for some expenditure incurred in

prosecuting the defendant.” (Internal quotation marks omitted.) Id. at 582. Under Jones, “ ‘the

central characteristic which separates a fee from a fine’ ” is “whether the charge seeks to

compensate the state for any costs incurred as the result of prosecuting the defendant.”

(Emphasis in original.) People v. Graves, 235 Ill. 2d 244, 250 (2009).

¶ 46 Mr. Braden argues that four of the assessments imposed that were labeled as “fees” are

actually “fines”: (1) the $15 state police operations fee, (2) the $25 court services (sheriff) fee,

(3) the $15 automation fee and the $15 document storage fee, and (4) the $2 public defender

records automation fee and the $2 state’s attorney records automation fee. The State concedes

that the first assessment—the $15 state police operations fee—was improperly categorized as a

fee, as previous courts have determined it is actually a fine. See People v. Millsap, 2012 IL App

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(4th) 110668, ¶ 31 (finding that, under the statute establishing the state police operations fee, the

money in question was to be used by the Illinois Department of State Police to “finance any of its

lawful purposes or functions” and does not reimburse for the costs incurred in prosecuting

defendant’s case (internal quotation marks omitted)). We agree with the parties and direct the

clerk of the circuit court to offset this assessment with presentence incarceration credit. We now

turn to the remaining three assessments.

¶ 47 Mr. Braden argues that the $25 court services (sheriff) fee is actually a fine because its

stated purpose in the statute is to “defray[ ] court security expenses incurred by the sheriff in

providing court services or for any other court services deemed necessary by the sheriff to

provide for court security.” 55 ILCS 5/5-1103 (West 2014). He argues this assessment does not

directly compensate the State for the cost of prosecuting him, as the holding in Jones, 223 Ill. 2d

at 582, mandates. The State responds by relying on People v. Brown, 2017 IL App (1st) 150146,

and People v. Tolliver, 363 Ill. App. 3d 94, 97 (2006), in which we held that this court services

assessment was “compensatory in nature” and a “collateral consequence” of a defendant’s

conviction, thus properly assessed as a fee not subject to offset.

¶ 48 We agree with the State and find that the court services (sheriff) assessment was properly

categorized as a “fee” because the services for which the legislature allowed reimbursement are

specifically tied to the prosecution of a criminal court case, namely the need for sheriff’s

deputies to maintain court security throughout the proceedings. Rather than flowing to a general

fund to finance “any lawful purposes,” as with the state police operations assessment, it is meant

to compensate for costs incurred as the result of a particular criminal prosecution. See Graves,

235 Ill. 2d at 250. The $25 court services (sheriff) fee thus cannot be offset by presentence

incarceration credit.

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¶ 49 The parties make similar arguments for the $15 automation fee (705 ILCS 105/27.3a(1)

(West 2014)) and the $15 document storage fee (id. § 27.3c). Mr. Braden asks us not to follow

Tolliver, 363 Ill. App. 3d 94, and to instead rely on People v. Smith, 2013 IL App (2d) 120691,

which he insists is a recent case that “considered whether a similar charge was a fine or a fee,”

and ruled for the defendant. However, the Smith court addressed a different, although similar fee,

whereas Tolliver addressed the automation fee disputed here. Furthermore, we recently held in

Brown, 2017 IL App (1st) 150146, ¶ 39, that the $15 automation and $15 document storage

assessments were “ ‘collateral consequence[s]’ ” to a defendant’s convictions and thus were not

subject to offset. We agree with the characterization of these two assessments as fees not subject

to offset.

¶ 50 Finally, Mr. Braden challenges the characterization of the $2 public defender records

automation assessment (55 ILCS 5/3-4012 (West 2014)) and the $2 state’s attorney records

automation assessment (id. § 4-2002.1(c)) as fees. He relies on People v. Camacho, 2016 IL App

(1st) 140604, ¶ 56, in which a division of this court found these assessments to be fines. But the

Camacho court also recognized, “every [other] published decision on this matter has determined

that both the State’s Attorney and public defender records automation assessments are fees.” Id.

¶ 52 (citing People v. Maxey, 2016 IL App (1st) 130698, ¶¶ 142-44, vacated, No. 121137 (Ill.

Nov. 22, 2017), People v. Reed, 2016 IL App (1st) 140498, ¶¶ 16-17, People v. Green, 2016 IL

App (1st) 134011, ¶ 46, People v. Bowen, 2015 IL App (1st) 132046, ¶¶ 62-65, People v.

Bradford, 2014 IL App (4th) 130288, ¶ 41, rev’d on other grounds, 2016 IL 118674, and People

v. Rogers, 2014 IL App (4th) 121088, ¶ 30).

¶ 51 We agree with the bulk of authority that these assessments are properly categorized as

fees because they are not intended to punish the defendant but, rather, “are designed to

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compensate those organizations for the expenses they incur in updating their automated record-

keeping systems while prosecuting and defending criminal defendants.” Brown, 2017 IL App

(1st) 150146, ¶ 38. Accordingly, these assessments may not be offset by presentence

incarceration credit.

¶ 52 IV. CONCLUSION

¶ 53 For the above reasons, we remand to the trial court for compliance with Rule 605(c) and

to allow Mr. Braden a chance to file postplea motions under Rule 604(d). Fines and fees assessed

to Mr. Braden are to be modified consistent with this opinion. Specifically, we direct the clerk of

the circuit court to vacate the imposition of the $5 electronic citation and the $250 DNA

assessments, and to modify by offsetting the $15 state police operations assessment levied

against him with presentence incarceration credit. The total amount that he owes, with his credit,

should be reflected as $379.

¶ 54 Remanded with directions; fines and fees order modified.

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