People v. Love

People v. Love, No. 82104 (10/17/97)

NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the
opinion to request a rehearing. Also, opinions are subject to modification, correction
or withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made available prior to the
Court's final action in this matter, it cannot be considered the final decision of the
Court. The official copy of the following opinion will be published by the Supreme
Court's Reporter of Decisions in the Official Reports advance sheets following final
action by the Court.

Docket No. 82104--Agenda 29--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GENEALYN
LOVE, Appellee.
Opinion filed October 17, 1997.

JUSTICE BILANDIC delivered the opinion of the court:
Section 113--3.1 of the Code of Criminal Procedure of 1963 allows circuit
courts to order defendants who receive the services of appointed counsel to pay
reimbursement for those services. 725 ILCS 5/113--3.1 (West 1994). This appeal
concerns the appropriate procedures to be followed in ordering reimbursement
under section 113--3.1.

FACTS
Defendant, Genealyn Love, was charged by indictment in the circuit court
of Kankakee County with one count of aggravated battery with a firearm and one
count of unlawful possession of a weapon by a felon. At his initial court
appearance on January 19, 1995, the trial court questioned defendant about his
financial resources. Defendant stated that he was unemployed and had no assets
other than a 1983 Ford Escort automobile. The trial court therefore appointed the
Kankakee County public defender to represent defendant. The trial court also set
bail for defendant's release at $25,000. Defendant filed a motion for reduction of
bail or release on a recognizance bond. At a hearing on the motion, defendant
testified that he was 23 years old, living with his grandfather, and was unable to
acquire any money to post a bail bond. The trial court denied defendant's motion
and defendant remained in custody.
On February 6, 1995, a bail bond in the amount of $2,500 was posted to
secure defendant's release from custody. The bond indicated that the money was
posted by Mary Terrell. The bond contained a notice, signed by Terrell, indicating
that if defendant failed to comply with the conditions of the bail bond, the money
posted would be forfeited, and that even if defendant complied with the bond, the
money posted may be used to pay fines, costs or restitution.
On March 7, 1995, Mary Terrell, through her attorney, filed a motion to
exonerate bond in which she asked that the bond money she had posted be
returned to her. Counsel representing Terrell was present in court on that date to
argue the motion. Terrell's counsel stated that Terrell had "changed her mind"
about posting the bond money. The trial court denied the motion.
After a bench trial, defendant was found guilty of unlawful possession of
a weapon by a felon. The trial court acquitted defendant of aggravated battery
with a firearm, but found him guilty of the lesser included offense of reckless
conduct.
A presentence investigation of defendant was conducted. That investigation
revealed that defendant was currently unemployed and that he had worked for two
months at a factory in 1994 through a temporary service. As to defendant's
"financial status," the report indicated that defendant's grandparents "provide" for
him and that defendant owed money for medical bills. After a brief sentencing
hearing, the trial court sentenced defendant to a five-year prison term for the
weapons conviction and a one-year term for the reckless conduct conviction. At
the same time, the court sua sponte ordered defendant to pay $1,000 for the
services of the public defender, to be withheld from the bail bond posted on
defendant's behalf. The court did not hold a hearing on the issue of
reimbursement.
Defendant appealed his sentences and the reimbursement order to the
appellate court. The appellate court affirmed the sentence for unlawful possession
of a weapon by a felon and reduced the sentence for reckless conduct from one
year to 364 days. The appellate court also determined that the reimbursement
order was improperly entered because the trial court did not hold a hearing
regarding defendant's ability to pay such reimbursement, as mandated by statute.
The appellate court therefore vacated the reimbursement order and remanded to
the trial court for a hearing. No. 3--95--0937 (unpublished order under Supreme
Court Rule 23). We granted the State's petition for leave to appeal. 155 Ill. 2d R.
315. We now affirm the appellate court.


ANALYSIS
In keeping with well-settled constitutional mandates, our Code of Criminal
Procedure requires that criminal defendants who cannot afford a lawyer be
provided with appointed counsel. See Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); People v. Cook, 81 Ill. 2d 176, 179 (1980).
Under section 113--3 of the Code, if the trial court determines that a defendant is
indigent and desires counsel, an attorney, generally the public defender, must be
appointed to represent the defendant. 725 ILCS 5/113--3(b) (West 1994). The
Code also provides a mechanism under which a defendant who receives the
services of appointed counsel may be required to reimburse the county or state for
such services. Section 113--3.1 provides, in pertinent part, as follows:
"(a) Whenever under either Section 113--3 of this Code or
Rule 607 of the Illinois Supreme Court the court appoints counsel
to represent a defendant, the court may order the defendant to pay
to the Clerk of the Circuit Court a reasonable sum to reimburse
either the county or the State for such representation. In a hearing
to determine the amount of the payment, the court shall consider
the affidavit prepared by the defendant under Section 113--3 of this
Code and any other information pertaining to the defendant's
financial circumstances which may be submitted by the parties.
Such hearing shall be conducted on the court's own motion or on
motion of the State's Attorney at any time after the appointment of
counsel but no later than 90 days after the entry of a final order
disposing of the case at the trial level.
***
(c) The method of any payment required under this Section
shall be as specified by the Court. The court may order that
payments be made on a monthly basis during the term of
representation; however, the sum deposited as money bond shall
not be used to satisfy this court order. Any sum deposited as
money bond with the Clerk of the Circuit Court under Section 110-
-7 of this Code may be used in the court's discretion in whole or
in part to comply with any payment order entered in accordance
with paragraph (a) of this Section. The court may give special
consideration to the interests of relatives or other third parties who
may have posted a money bond on the behalf of the defendant to
secure his release. At any time prior to full payment of any
payment order the court on its own motion or the motion of any
party may reduce, increase, or suspend the ordered payment, or
modify the method of payment, as the interest of fairness may
require. No increase, suspension, or reduction may be ordered
without a hearing and notice to all parties." 725 ILCS 5/113--
3.1(a), (c) (West 1994).
This appeal focuses on the procedure a trial court must follow in ordering
a defendant to pay reimbursement for the services of appointed counsel. Defendant
contends that section 113--3.1 requires that, prior to ordering reimbursement, the
trial court must conduct a hearing into whether the defendant has the ability to pay
such reimbursement. The State argues that section 113--3.1 does not require such
a hearing, but that it is solely within the trial court's discretion whether to conduct
a hearing into the defendant's ability to pay prior to ordering reimbursement.
Alternatively, the State asserts that the posting of a cash bail bond is conclusive
evidence of the defendant's ability to pay reimbursement, which obviates the need
for a hearing under section 113--3.1. Finally, the State argues that defendant
waived any errors in the reimbursement order by failing to object to the order in
the trial court.

I
We first address the State's contention that section 113--3.1 does not
require the trial court to hold a hearing into the defendant's ability to pay as a
precondition to ordering reimbursement of appointed counsel's fees. According to
the State, section 113--3.1 empowers trial judges to order reimbursement "at their
pleasure," without holding a hearing into the defendant's financial resources. The
State asserts that section 113--3.1 merely allows the trial court, in its discretion,
to conduct a hearing when the court deems it necessary to arrive at an appropriate
reimbursement amount. We disagree. The State's argument ignores both the
language of section 113--3.1 and prior precedent of this court.
The language of section 113--3.1(a) clearly requires the trial court to
conduct a hearing into the defendant's financial resources as a precondition to
ordering reimbursement. Section 113--3.1(a) begins by granting the trial court the
authority to order a defendant to pay reimbursement. Subsection (a) then
delineates the procedure the court must follow in order to do so:
"In a hearing to determine the amount of the payment, the court
shall consider the affidavit prepared by the defendant under Section
113--3 of this Code and any other information pertaining to the
defendant's financial circumstances which may be submitted by the
parties. Such hearing shall be conducted on the court's own motion
or on motion of the State's Attorney at any time after the
appointment of counsel but no later than 90 days after the entry of
a final order disposing of the case at the trial level." 725 ILCS
5/113--3.1(a) (West 1994).
Thus, section 113--3.1(a) plainly requires that the trial court conduct, within the
specified time period, a hearing into the defendant's financial resources to
determine his ability to pay reimbursement. The State nonetheless insists that
section 113--3.1(a) mandates only that, if the trial court holds a hearing, then the
court must consider the defendant's financial circumstances. According to the
State, whether to hold a hearing in the first instance is solely up to the discretion
of the trial court. The State's interpretation is not logical. Under this interpretation,
the statute compels the trial court to consider specific factors at a hearing, but
does not compel that the hearing be conducted in the first place. According to the
State, a trial court may avoid the legislature's express mandate to consider the
defendant's financial circumstances by simply dispensing with a hearing. We are
under a duty to interpret statutes so as to avoid absurd consequences. People v.
Bole, 155 Ill. 2d 188, 195 (1993). Moreover, we find nothing in the language of
section 113--3.1 which supports the State's contention that a hearing into the
defendant's financial circumstances is merely optional.
Any doubt that such a hearing is mandated by section 113--3.1 is quickly
dispelled when the history of the reimbursement statute is reviewed. Prior to 1982,
statutory authority for the recovery of appointed counsel fees from indigent
defendants was contained in section 110--7(g) of the Code. Section 110--7(g)
provided as follows:
"Whenever a defendant who has been admitted to bail
utilizes the services of a public defender or other appointed
counsel, the amount deposited may be used to reimburse the county
funding the legal services." Ill. Rev. Stat. 1979, ch. 38, par. 110--
7(g).
This predecessor version did not provide for a hearing or for any consideration of
the defendant's ability to pay reimbursement. It was this omission which, in part,
led this court to hold section 110--7(g) unconstitutional in People v. Cook, 81 Ill. 2d 176 (1980). In Cook, this court found section 110--7(g) unconstitutional on two
grounds. One ground was that the statute violated the due process rights of
indigent defendants because it failed to provide for inquiry into the defendant's
ability to pay reimbursement. Cook, 81 Ill. 2d at 185. In reaching its holding, the
Cook court examined the United States Supreme Court decision in Fuller v.
Oregon, 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116 (1974).
In Fuller, the Supreme Court considered the constitutionality of an Oregon
statute which, inter alia, imposed an obligation on defendants who received
appointed counsel to reimburse the State for the costs of that representation. The
Oregon statute specifically provided that " `[t]he court shall not sentence a
defendant to pay costs unless the defendant is or will be able to pay them,' " and
imposed a duty on the trial court to consider the defendant's financial resources
and the nature of the burden that payment will impose on the defendant. Fuller,
417 U.S. at 43 n.5, 40 L. Ed. 2d at 649 n.5, 94 S. Ct. at 2120 n.5, quoting Or.
Rev. Stat. sec. 161.665. The defendant in Fuller argued that the statute infringed
upon the constitutional right to appointed counsel because a defendant's
knowledge that he may be obligated to repay the costs of representation might
impel him to decline appointed counsel. The Supreme Court rejected this
challenge to the Oregon statute, finding that the statute "is carefully designed to
insure that only those who actually become capable of repaying the State will ever
be obligated to do so. Those who remain indigent or for whom repayment would
work `manifest hardship' are forever exempt from any obligation to repay." Fuller,
417 U.S. at 53, 40 L. Ed. 2d at 654, 94 S. Ct. at 2124.
In addition to Fuller, the Cook court also looked at the case law of other
states. The court observed that, "[o]ther courts, in considering reimbursement
statutes of this kind, have similarly focused upon the presence or absence of
procedural safeguards requiring judicial examination into an indigent defendant's
present or future ability to reimburse as the hinge on which the question of the
statute's constitutionality turns." Cook, 81 Ill. 2d at 184. The Cook court agreed
that the constitutionality of a reimbursement statute depended upon its providing
for inquiry into the defendant's ability to pay reimbursement. The 1978 statute's
failure to provide for such an inquiry therefore rendered the statute
unconstitutional. The court reasoned that "[a] summary decision which orders
reimbursement without affording a hearing with opportunity to present evidence
and be heard acts to violate an indigent defendant's right to procedural due
process." Cook, 81 Ill. 2d at 186. The court further noted that reimbursement
ordered without this procedural safeguard could restrain a defendant from
exercising his right to the assistance of counsel because "if he knows that the
money or other property posted for his bail will be subject to seizure to pay for
legal services, regardless of his inability to pay he may choose not to exercise this
constitutionally assured right." Cook, 81 Ill. 2d at 186.
This court in Cook thus established that due process requires a hearing into
a defendant's ability to pay reimbursement as a precondition to ordering such
reimbursement. The Illinois legislature responded to Cook in 1982 by enacting
section 113--3.1, the provision at issue in this case. Section 113--3.1 was clearly
intended to correct the due process violation identified in Cook by requiring that,
prior to ordering reimbursement, the trial court conduct a hearing which considers
the defendant's financial ability to pay reimbursement. The legislative intent to
eliminate the due process violation identified in Cook is demonstrated by the
following comments of one of the House sponsors of the new statute:
"Now, what we're doing is trying to rectify a problem. Two years
ago I passed legislation which went up to the Supreme Court and
the Supreme Court struck it down on the basis that we did not set
forth proper procedures for a hearing as to when we can assess an
attorneys fee against a defendant. *** This Bill is an attempt to
rectify the problems in my Bill that I had two years ago." 82d Ill.
Gen. Assem., House Proceedings, May 6, 1981, at 103-04
(statements of Representative Stearney).
Accordingly, the history of the reimbursement statute leaves no doubt that,
in enacting section 113--3.1, the legislature intended to require, not merely allow,
the trial court to conduct a hearing into the defendant's financial circumstances
prior to ordering reimbursement.
The State does not direct us to any decision interpreting section 113--3.1
in the manner it urges here. To the contrary, the decisions of our appellate court
have consistently held that section 113--3.1 requires a hearing into the defendant's
financial circumstances prior to ordering the defendant to pay reimbursement of
public defender fees. See, e.g., People v. Webb, 276 Ill. App. 3d 570, 574 (1995)
(reimbursement statute requires a hearing into the defendant's financial
circumstances before the court may order reimbursement); People v. Henderson,
232 Ill. App. 3d 230, 239 (1992) (same); People v. Reynolds, 152 Ill. App. 3d
216, 220 (1987) (section 113--3.1 satisfies due process because it requires a
hearing into the defendant's financial circumstances as a precondition to ordering
reimbursement). The State's contention that section 113--3.1 does not mandate a
hearing into the defendant's financial circumstances is rejected.

II
The State also contends that, even if section 113--3.1 generally requires a
hearing into the defendant's ability to pay, no such hearing was required in this
case because the cash bail bond posted on defendant's behalf conclusively
established defendant's ability to pay reimbursement, at least up to the amount of
the bond. The State relies on several decisions of the Fourth District of our
appellate court which held that a cash bond posted to secure a defendant's release
is "definitive evidence" of his ability to pay a reimbursement order, obviating the
need for any hearing into the defendant's ability to pay. People v. Hanna, 288 Ill.
App. 3d 109 (1997); People v. Nunez, 197 Ill. App. 3d 332 (1990); People v.
Baker, 195 Ill. App. 3d 785 (1990). As the State acknowledges, other appellate
decisions have rejected the reasoning of the Fourth District cases and held that a
hearing under section 113--3.1 is required even where a cash bail bond has been
posted on the defendant's behalf. See People v. Webb, 276 Ill. App. 3d 570, 574-
75 (3d Dist. 1995); People v. Henderson, 232 Ill. App. 3d 230, 238-39 (5th Dist.
1992).
We agree with defendant that the existence of a bail bond does not allow
the trial court to dispense with the hearing required by section 113--3.1(a). This
conclusion is mandated by this court's decision in Cook, 81 Ill. 2d 176. See Webb,
276 Ill. App. 3d at 574. The statute invalidated in Cook had provided that
reimbursement for appointed counsel services could be obtained only from
indigent defendants who had posted bail. See Ill. Rev. Stat. 1979, ch. 38, par. 110-
-7(g). One ground upon which this court invalidated the statute was that, in
differentiating between indigent defendants who post bail and those who do not,
the statute ran afoul of the equal protection guarantee. In so holding, the Cook
court specifically rejected the State's argument that a rational basis for the
differentiation existed because the ability to post bail conclusively establishes the
defendant's financial ability to pay for the services of appointed counsel. The
court reasoned that:
"This court has never adopted any presumption (which would be,
in this case, an irrebuttable one) that the posting of bail, without
more, was a sufficient indicium of ability to pay wholly or partially
for legal counsel. Bail may be posted with borrowed funds or by
relatives or friends. ***
* * *
*** There is no rational relationship between the legislative
purpose of reimbursement for the expense of appointed counsel and
a statute which imposes an obligation only on one segment of this
class of indigent defendants based upon the improper and
seemingly conclusive presumption that the posting of bail
demonstrates an ability to pay for those legal services." (Emphasis
added.) Cook, 81 Ill. 2d at 181-83.
The State's argument here is premised upon the precise presumption which
this court rejected in Cook. The State insists that the posting of a cash bond on a
defendant's behalf is "conclusive evidence" of the defendant's ability to pay legal
fee reimbursement, obviating the need for a hearing. See Baker, 195 Ill. App. 3d
at 796. In other words, the State argues that the posting of a cash bond creates an
irrebuttable presumption that the defendant has the ability to pay for legal
services. Accordingly, the State's position is directly contrary to this court's
decision in Cook.
We see no reason to depart from the Cook court's rejection of a conclusive
presumption of ability to pay for legal services arising from the posting of a bail
bond. There is no basis in the language of section 113--3.1 for dispensing with a
hearing into the defendant's financial circumstances simply because a cash bail
bond has been posted. Section 113--3.1 does make reference to the possibility that
money deposited as a bail bond may be available to satisfy an order of
reimbursement. See 725 ILCS 5/113--3.1(c) (West 1994). The statute does not,
however, provide that the hearing mandated by subsection (a) may be dispensed
with where that is the case. Rather, the statute contemplates that, should the trial
court determine that reimbursement is appropriate, the court may order that the
reimbursement amount be paid out of the bond. 725 ILCS 5/113--3.1(c) (West
1994). Accordingly, the existence of a bail bond does not affect the need for a
hearing under subsection (a), but merely provides a potential fund for satisfaction
of a reimbursement order.
Further, section 113--3.1 dictates that, when considering whether to order
that reimbursement be withheld from a bail bond, the trial court should consider
whether the bond money was posted by a third party. Section 113--3.1(c) provides
that "[t]he court may give special consideration to the interests of relatives or
other third parties who may have posted a money bond on the behalf of the
defendant to secure his release." 725 ILCS 5/113--3.1(c) (West 1994). The trial
court will have the opportunity to consider the interests of such third parties,
however, only if the court conducts a hearing on the reimbursement issue.
Moreover, we continue to find persuasive the reasoning espoused in Cook
for rejecting a conclusive presumption of ability to pay. As Cook recognized, bail
money may be borrowed or may be posted by relatives or friends. Cook, 81 Ill. 2d at 181. As such, the fact that bail money is posted may have no bearing on
whether the defendant has the ability to pay reimbursement for the services of
appointed counsel. The focus of the hearing required by section 113--3.1(a) must
be on the defendant's ability to pay because reimbursement is properly ordered
only where the court finds that the defendant has a reasonably foreseeable ability
to pay such reimbursement. See Webb, 276 Ill. App. 3d at 575; Henderson, 232
Ill. App. 3d at 239; People v. Phillips, 150 Ill. App. 3d 531, 534 (1986). The
circumstances of this case amply illustrate the invalidity of the State's
presumption. Here, the record reveals that a third party, Mary Terrell, posted the
$2,500 bond to secure defendant's release on bail. In fact, counsel for Terrell
appeared before the court prior to trial and attempted to secure the return of that
money to Terrell. A "presumption" of ability to pay on the part of the defendant
based upon the mere filing of a cash bail bond thus does not conform to the
reality of this case. Additionally, where, as here, a bail bond has been posted by
a third party, the fairness of requiring a hearing prior to ordering reimbursement
from that bond is even more apparent.
Accordingly, we hold that section 113--3.1 requires that the trial court
conduct a hearing into a defendant's financial circumstances and find an ability
to pay before it may order the defendant to pay reimbursement for appointed
counsel. Such a hearing is required even where a cash bail bond has been posted
on the defendant's behalf. The hearing must focus on the foreseeable ability of the
defendant to pay reimbursement as well as the costs of the representation
provided. See 725 ILCS 5/113--3.1(a) (West 1994); Webb, 276 Ill. App. 3d at
574-75; Henderson, 232 Ill. App. 3d at 239; People v. Terry, 170 Ill. App. 3d 484,
488-89 (1988). Further, if a bail bond has been posted, the court should consider
whether a third party provided the money for that bond. See 725 ILCS 5/113--
3.1(c) (West 1994); Webb, 276 Ill. App. 3d at 573; People v. Reynolds, 152 Ill.
App. 3d 216, 220 (1987). The trial court may, in its discretion, decide to give
special consideration to the interests of such third party. Henderson, 232 Ill. App.
3d at 239; People v. Gutierrez, 156 Ill. App. 3d 555, 559 (1987). To the extent the
decisions in People v. Hanna, 288 Ill. App. 3d 109 (1997), People v. Nunez, 197
Ill. App. 3d 332 (1990), and People v. Baker, 195 Ill. App. 3d 785 (1990), are
inconsistent with this opinion, they are hereby overruled.

III
Finally, the State contends that defendant waived any error in the
reimbursement order by failing to object to the order in the trial court. Defendant
responds that the trial court's error in failing to conform to section 113--3.1 should
be considered plain error. In the alternative, defendant contends that his trial
counsel's failure to object constituted ineffective assistance of counsel.
We find that application of the waiver rule is inappropriate under the
circumstances of this case. Where, as here, the trial court wholly ignored the
statutory procedures mandated for a reimbursement order under section 113--3.1,
and instead ordered reimbursement sua sponte without any warning to the
defendant, fairness dictates that waiver should not be applied. The hearing
required by section 113--3.1 is a safeguard designed to insure that a
reimbursement order entered under that section meets constitutional standards, as
identified by this court in Cook. Here, the trial court failed to conduct any hearing
or to otherwise engage in any consideration of defendant's financial circumstances
and failed to allow defendant any opportunity to present evidence or otherwise
contest the imposition of a reimbursement order. Rather, the record reveals that
the trial court proceeded as if the imposition of a reimbursement order was a
perfunctory exercise, performed as a rule in every case. As discussed at length
earlier in this opinion, however, reimbursement under section 113--3.1 is not
simply a mechanism to be routinely employed in every case. Constitutional
principles require that reimbursement be ordered only when certain conditions are
satisfied. The trial court's failure to adhere to the procedural safeguards mandated
by section 113--3.1 requires vacatur of the reimbursement order, despite
defendant's failure to object.

CONCLUSION
For the foregoing reasons, we affirm the judgment of the appellate court
vacating the reimbursement order and remanding for a hearing pursuant to section
113--3.1.

Appellate court judgment affirmed.