Opinion filed February 22, 2016 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2016

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, Plaintiff-Appellee, ) Peoria County, Illinois. ) ) Appeal No. 3-13-0650 v. ) Circuit No. 12-CF-642 ) JALIN FORD, ) The Honorable ) Michael Brandt, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Carter and Schmidt concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Defendant Jalin Ford was convicted of reckless conduct for causing damage to a van

owned by the Peoria Multi-County Narcotics Enforcement Group (MEG) unit. The trial court

sentenced defendant to one day in jail and 18 months of probation. The court ordered defendant

to pay restitution to the Peoria MEG unit, as well as court costs and “mandatory assessments.”

The Peoria County Circuit Clerk assessed a total of $902.50 in fines and fees against defendant.

On appeal, defendant argues that (1) there was insufficient evidence to prove he committed

reckless conduct, (2) the trial court erred in requiring him to pay restitution, and (3) the Peoria County Circuit Clerk improperly assessed fines and fees against him. We affirm defendant’s

conviction and restitution judgment but vacate the fines and fees assessed by the circuit clerk and

remand, with directions, for the trial court to properly assess fines and fees.

¶2 FACTS

¶3 Defendant was charged with one count of criminal damage to property (720 ILCS 5/21-

1(a)(1) (West 2012)) for knowingly damaging a van owned by the Peoria MEG unit on May 23,

2012. He was later charged with one count of reckless conduct (720 ILCS 5/12-5(a) (West

2012)) for accelerating his vehicle toward the Peoria MEG unit van “when the two vehicles were

close” and endangering the van’s driver.

¶4 A bench trial was held in July 2013. Ryan Tarby, a police officer with the Tazewell

County Sheriff’s Office, testified that he was part of the Peoria MEG unit on May 23, 2012. On

that day, he drove a minivan owned by the unit to an apartment building located at 3210 N.

Woodbine in Peoria, where a confidential informant had arranged to buy drugs from defendant.

¶5 Tarby explained that there is a parking lot behind the apartment building at 3210 N.

Woodbine. Two driveways access that parking lot: one north of the apartment building, and one

south of the apartment building. Tarby drove the Peoria MEG unit van in the middle of the north

driveway toward the back parking lot of the apartment building. Tarby estimated that the north

driveway was approximately one-and-a-half vehicles in width and could fit only one vehicle at a

time. As Tarby proceeded up the driveway, he saw defendant’s vehicle round the corner and

come toward him from the parking lot in the back of the apartment building.

¶6 When defendant saw Tarby, defendant straightened out his vehicle, sped up and came

directly at the van Tarby was driving. Tarby estimated that the vehicles were 50 to 60 feet apart

when he saw defendant “hit the gas.” Tarby testified that he was driving less than 5 miles per

2 hour at the time. After defendant increased his speed, both defendant and Tarby turned their

steering wheels in the same direction to brace for the impact, and their vehicles collided.

¶7 Tarby testified that the left front bumper of the minivan struck the driver’s side of

defendant’s vehicle. There was extensive damage to defendant’s driver’s side door and minor

damage to the bumper of the van. Tarby believed that defendant tried to drive around him

through the bushes but that there was not enough room in the driveway for defendant’s vehicle to

get through without hitting the van. Defendant’s vehicle became pinned between Tarby’s

vehicle and bushes next to the apartment building.

¶8 Once the vehicles came into contact, defendant tried to continue to accelerate but was

unsuccessful. Tarby had his foot on the brake, so defendant’s vehicle could not move. Tarby

was wearing a green flight suit with a badge and a black jacket with the word “Police” on both

the front and back.

¶9 Chris Watkins, a deputy with the Peoria County Sheriff’s Office, testified that he was part

of the Peoria MEG unit and was in front of the apartment building at 3210 N. Woodbine in

Peoria on May 23, 2012, when defendant arrived in his vehicle. Defendant drove behind the

building. Master Sergeant Gorsuch pulled in behind defendant, using the south driveway, and

Tarby, who was driving the unit’s “arrest van,” came up the driveway on the north side of the

apartment building to “block in” defendant.

¶ 10 Watkins could not see behind the apartment building, but he observed defendant’s

vehicle “as soon as he turned the corner on the north side of the apartment complex.” When

defendant turned the corner, “he turned sharply to the north like he was – it appeared to me that

he was avoiding the arrest van that pulled in front of him.” Defendant appeared to accelerate and

3 veer to his right. Defendant’s vehicle came into contact with a bush and the van Tarby was

driving. Watkins thought that defendant seemed to be trying to avoid Tarby’s vehicle.

¶ 11 Ryan Gorsuch, a master sergeant with the Illinois State Police currently assigned to the

Peoria MEG unit, was participating in the unit’s “buy bust” on May 23, 2012, at 3210 N.

Woodbine in Peoria. He was driving an unmarked blue Chevy Tahoe. He witnessed defendant

drive to the back of the apartment building. Gorsuch drove his vehicle on the south driveway

and proceeded to the back of the building with his strobe lights activated. When defendant saw

him, he rounded the north corner of the building. Gorsuch did not see the collision between

defendant and Tarby. When he came around the corner, he saw defendant’s vehicle and the van

Tarby was driving “pinned up in the bushes.” He heard defendant’s engine revving up, like

defendant was trying to accelerate.

¶ 12 Defendant testified that as he was driving around the back of the apartment building at

3210 N. Woodbine in Peoria on May 23, 2012, he turned into the north driveway and saw a van

coming at him “at a high rate of speed.” According to defendant, Tarby “just rushed me and hit

my driver’s side and rammed me into the bushes.” Defendant estimated that he was driving 10

miles per hour, while the van was traveling at least 30 miles per hour.

¶ 13 Defendant testified that he had no intention of making contact with the van. He further

testified that “after he was rammed,” he was “pinned in the bushes” and made no attempt to

move his vehicle. Defendant testified that he did not see any red and blue flashing lights behind

him when he was in the parking lot because he only “looked forward.” He denied revving his

engine after the impact. He said he did not know a police officer was driving the van.

¶ 14 Roger Whitman runs Green Chevrolet, a body shop and dealership in Peoria. He

examined the Peoria MEG unit van that Tarby was driving on May 23, 2012, and determined that

4 it needs a new front bumper cover, a new left headlight assembly and a new hood. He estimated

that it will cost $1,836.44 to repair it.

¶ 15 The trial court found defendant not guilty of criminal damage to property and guilty of

reckless conduct. The trial court sentenced defendant to one day in jail and 18 months of

probation. The court ordered defendant to pay restitution of $1,836.44 to the Peoria MEG unit,

as well as “the cost of the proceedings, and any mandatory assessments.” The Peoria County

Circuit Court Clerk prepared a document showing that defendant owed $902.50 in fines and fees.

¶ 16 ANALYSIS

¶ 17 I

¶ 18 Defendant first argues that he was not proven guilty beyond a reasonable doubt of

reckless conduct. He argues that his conduct was not reckless because he tried to avoid hitting

the van Tarby was driving.

¶ 19 The relevant inquiry in reviewing the sufficiency of the evidence to sustain a verdict on

appeal is whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution.

People v. Hopkins,

(2002). “A person commits reckless conduct when he or

she, by any means lawful or unlawful, recklessly performs an act or acts that: (1) cause bodily

harm to or endanger the safety of another person; or (2) cause great bodily harm or permanent

disability or disfigurement to another person.” 720 ILCS 5/12-5(a) (West 2012).

¶ 20 A driver is reckless if he knows of the danger of a collision and collides with another

vehicle without employing reasonable means to avoid the accident. People v. Brajcki,

(1986). A reasonable person would attempt to avoid a collision by reducing

5 speed and braking when seeing an oncoming vehicle. See People v. Mikyska,

(1989).

¶ 21 In a prosecution for reckless conduct, the State must prove that defendant’s conduct

shows a conscious disregard of a substantial risk likely to cause bodily harm such that a

reasonable person would have acted differently in the same situation. People v. Gosse,

(1983). The mental state of recklessness is to be inferred from all of the

facts and circumstances in the record.

. Whether given conduct is reckless is a

question for the trier of fact.

¶ 22 Here, both Tarby and Watkins testified that when defendant saw the Peoria MEG unit

van approaching his vehicle head on, he accelerated, causing the van and his vehicle to collide.

This testimony was sufficient to establish recklessness. See Brajcki,

; see

also West Chicago St. R.R. Co. v. Shannon,

(1903) (motorman who

accelerates instead of stopping after seeing someone crossing track in front of him is reckless).

A reasonable person in the same situation would not have sped up but would have stopped his

vehicle to avoid a collision. See Mikyska,

. Under the circumstances

presented here, the trial court could have reasonably concluded that defendant acted recklessly.

There was sufficient evidence to support the trial court’s verdict.

¶ 23 II

¶ 24 Next, defendant argues that the court’s restitution order is void because the Peoria MEG

unit is not a “victim” eligible to receive restitution.

¶ 25 The restitution statute, which is contained in section 5-5-6 of the Unified Code of

Corrections, authorizes courts to order restitution when a person has “received any injury to his

or her person or damage to his or her real or personal property as a result of the criminal act of

6 the defendant.” 730 ILCS 5/5-5-6 (West 2012). The statute provides: “[T]he court shall assess

the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in

the charge and any other victims who may have suffered out-of-pocket expenses, losses,

damages, and injuries proximately cased by the same criminal conduct of the defendant ***.”

730 ILCS 5/5-5-6(b) (West 2012). A “victim” under the restitution statute is someone who has

suffered property damage, personal injury, or financial loss. People v. Danenberger,

(2006).

¶ 26 Generally, a trial court’s determination on restitution will not be reversed absent an abuse

of discretion. People v. Cameron,

. However, when, as here, the

issue is whether a restitution order is authorized by statute, it is a question of law that we review

de novo.

¶ 27 “[T]he vast weight of authority has held that a police department or government agency

is not considered a ‘victim’ within the meaning of the restitution statute [citation].” People v.

Derengoski,

(1993) (citing People v. Lawrence,

(1990), People v. Chaney,

(1989), People v. Gaytan,

(1989), People v. McGrath,

(1989), People v. Winchell,

(1986), and People v. Evans,

(1984)). Courts have precluded law

enforcement agencies from receiving restitution for (1) funds used to purchase illegal drugs from

defendants (People v. Mocaby,

(2008); McGrath,

; Chaney,

; Gaytan,

; Evans,

), (2) funds used to purchase stolen goods from a defendant (Winchell,

), (3) expenses incurred in arresting a defendant (Derengoski,

), and

7 (4) expenses incurred in investigating a false criminal complaint (Danenberger,

).

¶ 28 The “rationale of these opinions is that a law enforcement agency ought not be

compensated for the public money that it spends in performing its basic function of investigating

and solving crimes.”

. The reasons for the rule are twofold. First, merely investigating

an offense does not make a law enforcement agency a “victim” of the offense.

“Second,

were the rule otherwise, police departments would receive restitution in almost every criminal

case, thus being paid twice–once by the taxpayers and once by the offender–for performing their

basic function.”

¶ 29 Nevertheless, there is no per se rule prohibiting a law enforcement agency from receiving

restitution.

“[I]t is at least plausible that, if a person commits criminal damage to property by

destroying a police department squad car, then the department may be compensated for the loss.”

(citing United States v. Donaby,

(7th Cir. 2003) (village entitled to

restitution for damage to police car proximately caused by defendant’s bank robbery)). Many

courts have required defendants to pay restitution to police departments when they damage

police vehicles. See United States v. Washington,

(11th Cir. 2006)

(defendant required to pay restitution to police department for damage to police cars caused

during armed robbery); United States v. Reichow,

(8th Cir. 2005) (defendant

ordered to pay restitution for damage defendant caused to police car); State v. Dillon,

(Or. 1981) (defendant ordered to pay restitution to police department for damage

caused by defendant’s collision with police car); People v. Barnett,

(N.Y.

App. Div. 1997) (defendant required to pay restitution to New York State Police Department to

8 cover “the cost of repairing a police car that was damaged as a direct result of defendant’s

criminal conduct”).

¶ 30 Here, the trial court ordered defendant to pay restitution in the amount of the repair bill

for the Peoria MEG unit van that was damaged by defendant’s reckless conduct. The restitution

in this case did not reimburse the Peoria MEG unit for its normal costs of investigating crime.

Instead, the restitution covered the cost of repairing a law enforcement vehicle that was damaged

as a direct result of defendant’s criminal conduct. See Dillon,

; Barnett,

. Because the Peoria MEG unit suffered out-of-pocket expenses as a result of

defendant’s conduct, it was entitled to restitution. See Danenberger,

.

We affirm the trial court’s restitution award.

¶ 31 III

¶ 32 Finally, defendant argues that the Peoria County Circuit Court Clerk improperly assessed

fines and fees against him that were not authorized by the trial court. He further contends that he

is entitled to per diem credit for any fines assessed against him. The State concedes that the

circuit clerk imposed fines without authorization and agrees that we should vacate the

assessments and fines and remand the case with directions to the trial court to correct any errors

in the imposition of court costs, assessments and credits.

¶ 33 It is well settled that the imposition of a fine is a judicial act, and the circuit clerk does

not have authority to impose fines, including mandatory fines. People v. Alghadi,

. Any fine imposed by the circuit clerk is void.

Where a circuit clerk has

improperly imposed mandatory fines, the reviewing court may vacate those fines and reimpose

them. People v. Williams,

.

9 ¶ 34 Where monetary assessments have been improperly imposed, the proper remedy is to

vacate the assessments in full and remand the matter so the trial court may enter an order of

enumerated costs. See People v. Hunter,

. This remedy

allows the trial court to delineate “the specific amounts the court intended to order this defendant

to pay.” (Emphasis in original.) Id. ¶ 17. Remand also allows the matter to be addressed by the

trial court with input from both parties. See id.

¶ 35 Here, the parties agree that the circuit clerk improperly imposed fines against defendant.

Accordingly, we vacate all of the fines and fees, and remand the cause with the following

directions: the trial court should impose each proper fine, fee, assessment and court cost setting

forth in a written order the statutory authority for each one. The trial court should also calculate

the appropriate $5-per-day presentence incarceration credit and offset defendant’s fines by that

amount. See 725 ILCS 5/110-14(a) (West 2012).

¶ 36 CONCLUSION

¶ 37 The judgment of the circuit court of Peoria County is affirmed in part, vacated in part,

and remanded with directions.

¶ 38 Affirmed in part and vacated in part; cause remanded with directions.

10