No. 1-14-2877

FIRST DIVISION Opinion filed March 27, 2017 Modified upon denial of rehearing April 24, 2017

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 13 CR 19813 ) LARRY BROWN, ) ) Honorable Colleen Ann Hyland, Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Simon and Mikva concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Larry Brown was convicted of burglary and sentenced

to nine years in prison. On appeal, defendant contends (1) the State failed to prove beyond a

reasonable doubt that he intended to commit a theft, (2) the trial court denied him his right to

present a defense when it excluded certain testimony, (3) his sentence was excessive, and (4)

certain monetary charges should be vacated and other charges should be offset by his

presentence custody credit. We affirm and correct the order assessing fines, fees, and costs.

¶2 I. BACKGROUND No. 1-14-2877

¶3 According to the charging document, defendant knowingly and without authority entered

or without authority remained at 9532 South Hamlin Avenue in Evergreen Park (the South

Hamlin house), which was owned by the Federal Home Loan Mortgage Corporation, with intent

to commit therein a theft. The offense was alleged to have occurred from around September 7,

2013, through September 18, 2013. At trial, the key issue was defendant’s intent. The State

maintained that defendant set out to steal the South Hamlin house. Meanwhile, defendant

claimed that he did not intend to commit a theft because he believed he was legally acquiring the

South Hamlin house through adverse possession.

¶4 Throughout the trial, various witnesses referred to a collection of documents that

defendant filed with the Cook County recorder of deeds on September 6, 2013. The documents

consisted of the following: (1) a “Non Abandonment and Secured Interest of Property,” which

indicated that notice was given to the Cook County sheriff’s department, the Federal Bureau of

Investigation (FBI), the Chicago police department, the Illinois Department of Transportation, all

lending institutions and their agents, and “Legal Authorities, to be further named” (Defendant

signed this document on September 5, 2013, and the document stated in part that the South

Hamlin house “has not nor will be abandoned” and that defendant was the “holder in due course

and secured party.”); (2) a picture of the South Hamlin house; (3) a legal description of the

South Hamlin house from the Cook County map department; (4) a receipt from the map

department of the Cook County clerk’s office; (5) an affidavit of adverse possession; (6) an

affidavit of adverse possession that included the Illinois Department of Transportation logo, and

stated in part that defendant acquired title to the property “from Adverse Possession by Torrez

Moore dated September 5, 2013, and recorded in the Recorder’s Office of Cook County;” and

(7) a notice of claim of title to real estate.

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¶5 For the State, Officer Matthew Lecompte testified that on September 7, 2013, he

encountered defendant in the Evergreen Park police station lobby. Defendant stated that he had

just bought a home and wanted Officer Lecompte to escort him while he changed the locks.

Officer Lecompte declined, explaining that defendant did not need police presence if he truly

owned the property. Officer Lecompte did not tell defendant that he could not move into the

house.

¶6 Robert McDonough, who lived next door to the South Hamlin house, testified that around

7:30 p.m. on September 8, 2013, he observed defendant, a woman, and two children moving

mattresses, bed frames, and other items into the back door of the South Hamlin house. After

McDonough and his wife introduced themselves as defendant’s new neighbors, defendant said

his name was Larry and introduced McDonough to the woman who was with him. McDonough

stated that there had been a realtor sign on the lawn of the South Hamlin house on September 8,

but the sign was gone on September 9.

¶7 John Collins testified that he lived across the street from the South Hamlin house, which

had been in foreclosure. Collins could not recall how long the South Hamlin house had been

unoccupied. He stated that around 6 p.m. on September 10, 2013, a car pulled into the driveway

of the South Hamlin house. Defendant and another person exited the car and removed a crowbar

from the trunk, which they used to pry open the side door of the garage. Collins called 911 and

the police arrived a short time later.

¶8 Officer James Whelan testified that he went to the South Hamlin house around 6 p.m. on

September 10, 2013, where he observed defendant and another man in the driveway. Defendant

introduced himself and stated he was the owner of the house and had bought it for back taxes.

Officer Whelan recalled that defendant gave him some paperwork, presented identification, and

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had a key to the side door of the house, which he opened. According to Officer Whelan, “you got

a key to the house and you got documents saying you own the house, you own the house.” In the

meantime, two other people arrived, Joan and Daniel Kunz, who also presented documents and

stated that they owned the house. Officer Whelan told the Kunzes to contact their attorney

“because he’s got papers, too and I’m not a lawyer.”

¶9 Detective Michael Kmetty testified that on September 17, 2013, he learned of an

ownership dispute relating to the South Hamlin house. Upon investigation, Detective Kmetty

learned that defendant was staying at the house illegally and had illegitimate paperwork.

Detective Kmetty also learned that Joan and Daniel Kunz had legitimate paperwork that showed

they were closing on the house. Subsequently, Detective Kmetty obtained an arrest warrant for

defendant. On September 18, 2013, defendant arrived at the police station, where he was read

Miranda warnings and interviewed. According to Detective Kmetty, defendant stated that he had

obtained adverse possession paperwork from someone named Torrez Moore and filed the

paperwork with the Cook County recorder of deeds. Defendant further stated that he planned to

live in the South Hamlin house forever. Defendant recalled that he changed the locks on the

house by prying them off with a screwdriver and then brought his belongings inside. Defendant

gave Detective Kmetty permission to look through his iPhone, which contained numerous

listings for houses and their prices.

¶ 10 The parties also presented stipulated testimony. It was stipulated that Jim Kennedy, a

realtor and broker, would testify that he was contracted by the Federal Home Loan Mortgage

Corporation to list the South Hamlin house. As part of his responsibilities, he installed a for-sale

sign on the front lawn and placed a lockbox in the building. Kennedy would further testify that

he was never contacted by and did not know a person named Larry Brown.

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¶ 11 It was further stipulated that Loris Ryan, a real estate agent, would testify that Joan and

Daniel Kunz made an offer to buy the South Hamlin house on September 6, 2013, and Joan

Kunz signed a contract that same day. The contract was ultimately accepted on September 9,

2013, by Brian Tracy, who acted as the attorney-in-fact for the owner, the Federal Home Loan

Mortgage Corporation.

¶ 12 Additionally, the parties stipulated that Brian Tracy would testify that no one from the

Federal Home Loan Mortgage Corporation was contacted by Larry Brown about the South

Hamlin house. Additionally, no one at the Federal Home Loan Mortgage Corporation was

notified by defendant about his attempt to establish ownership of the South Hamlin house. Tracy

would also maintain that he had no personal contact with defendant and did not give defendant

permission to take possession and control of the South Hamlin house.

¶ 13 It was further stipulated that Joan Kunz would testify that after signing the contract, she

and her husband went to view the South Hamlin house on September 10, 2013. When she

arrived, defendant was in possession of the house. Joan Kunz would also state that before

September 10, 2013, she had never met defendant and did not have any conversations with him

about the South Hamlin house.

¶ 14 The parties also presented stipulations about defendant’s documents. Peter Karahalios,

the deputy treasurer and chief legal counsel of the Cook County treasurer’s office, would testify

that defendant did not make any payments for real estate taxes owed on the South Hamlin house.

Additionally, the parties stipulated that Dweina Turner, a clerk with the Cook County recorder of

deeds, would testify that the recorder of deeds is responsible for recording documents pertaining

to the transfer of title of real estate, mortgages, and loans, among other items. Turner would

further state that documents that are presented for recording are not reviewed for their legal

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purpose and that any document is recorded as long as it appears to be related to a real property,

contains a property index number, and a fee is paid. The parties also stipulated that Liam

Reardon, an assistant State’s Attorney assigned to the mortgage fraud task force, would testify

that he reviewed the documents that defendant presented to Officer Whelan and determined that

the documents had no legal significance as to establishing ownership of the South Hamlin house.

¶ 15 After the State rested, defense counsel moved for a directed finding, contending that there

was no evidence of wrongful intent. Defense counsel further asserted that all the evidence

showed that defendant was following a path that he believed to be legal. The court denied the

motion.

¶ 16 Testifying in his defense, defendant stated that he first learned about adverse possession

when he was previously incarcerated. According to defendant, adverse possession required that

“you had to take possession of a property. Stay in it for an amount of time openly and

notoriously, exclusive; and after a period of time, you would gain full title to the property.”

Defendant further explained that to gain full title, he had to stay in the property for 20 years or

for 7 years if he paid taxes. Defense counsel and defendant had the following exchange:

“Q. And after you got out of jail, with regard to adverse possession, what did you

do?

A. Well, a cousin of mine said she had acquired property through adverse

possession. I was introduced to Torrez Moore who told me.

MR. JAKALSKI [Assistant State’s Attorney]: Objection to what Torrez Moore

said.

THE COURT: Sustained.

THE WITNESS: Well, I was introduced to—

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MR. JAKALSKI: Objection, no question pending.

THE COURT: Sustained.

MR. GROSSMAN [defense counsel]: Well, he can say I was introduced to

Torrez Moore.

THE COURT: Ask another question.”

¶ 17 Defendant stated that after he was released from prison, he was looking for a home, and

so he started searching Realtor.com for foreclosed bank-owned properties. After defendant saw

that the South Hamlin house was listed as foreclosed and bank-owned, he contacted the number

that was listed on the property. Defendant believed that the South Hamlin house was abandoned.

The following exchange about defendant’s process occurred between defense counsel and

defendant:

“Q. At that point, had you been told by anyone what to do to acquire these

properties?

MR. JAKALSKI: Objection.

THE COURT: Sustained.

Q. What is it that caused you to do what you just testified to?

MR. JAKALSKI: Objection, your Honor.

THE COURT: Overruled.

THE WITNESS: I was trying to obtain a property for me and my family. I was

told that I could file—

MR. JAKALSKI: Objection to what he was told.

THE WITNESS: Well, I learned—

THE COURT: Hold on. There’s an objection. What is the basis of your objection?

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MR. JAKALSKI: Hearsay. I was told. Don’t know by who. What’s the purpose

for the statement?

THE COURT: Your response.

MR. GROSSMAN: Yes, your Honor. The answer is not to prove the ultimate

truth or falseness of what he was being told, but that information flow, not the truth [or]

falseness of what’s being told.

THE COURT: You can say he spoke to others, but I don’t want to hear what the

information was. So sustained as to what he was told.

***

Q. [Defense counsel:] So you spoke to other; is that correct?

A. Correct.

Q. Then what did you do?

A. I filed paperwork with the recorder of deeds.

Q. And that’s these nine documents ***; is that correct?

A. Correct.

Q. And to the best of your knowledge, that was establishing your right to occupy

the premises?

MR. JAKALSKI: Objection, leading.

THE COURT: Sustained.

Q. [Defense counsel]: What did you believe filing those documents would do for

you?

A. It commenced the period of adverse possession.

Q. After you filed these documents, *** what did you do?

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A. I called the water department and asked them to change the billing over to my

name.

Q. What water department?

A. In Evergreen Park.

Q. Then what did you do?

A. Then I called the police department. I told them I would need an officer to go

with me to change the locks. They instructed me to come into the—

MR. JAKALSKI: Objection to what they said.

THE COURT: Sustained.”

¶ 18 Defendant stated that after the conversation with a policeman, he changed the locks and

took possession of the house. The following day, his girlfriend and her kids moved in, along with

her brother. Defendant further stated that he cut the grass after he moved in. Defendant denied

that he told Officer Whelan that he bought the house for back taxes and maintained that he told

the officer that he had filed an adverse possession claim.

¶ 19 Defendant also testified about his aforementioned documents. Defendant stated that he

had submitted the documents to the FBI in Chicago, the Cook County sheriff’s office, the

Evergreen Park police department, the Illinois Department of Transportation, and the Chicago

police department. The following exchange then occurred between defendant and defense

counsel:

“Q. Why to the FBI?

A. I was told that I was to give notice to everyone.

Q. Why to the Sheriff of Cook County?

MR. JAKALSKI: Objection to hearsay.

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THE COURT: Sustained.

MR. GROSSMAN: Except it addresses the purpose of sending

a document.

MR. JAKALSKI: Objection.

THE COURT: Sustained. It’s hearsay.

Q. [Defense Counsel]: But it was tendered to give notice, is that correct?

A. To give notice.”

¶ 20 Defendant went on to state that he sent the documents to the Evergreen Park police

department to give them notice because the house was located in Evergreen Park. Defendant

explained that he sent the documents to the Chicago police department to give notice as well,

even though the house was in Evergreen Park. Defendant further stated that he sent the

documents to the Illinois Department of Transportation because it deals with all commerce in the

state.

¶ 21 Defendant further testified that he was living at the South Hamlin house when Joan and

Daniel Kunz arrived on September 10. Defendant stated that he showed his documents to Daniel

Kunz, the Kunzes’ real estate agent, and an Evergreen Park health inspector, who he also gave a

tour of the house. Defendant further stated that he was told he had to file transfer stamps and get

a certificate of occupancy and a safety inspection, and so the following week he went to the

village hall to pick up the relevant information. At a later point, defendant received a call from

his girlfriend’s mother, whereupon he went to the police station and was arrested.

¶ 22 Additionally, defendant testified about text messages that were found on his phone

between him and a number he received from the Realtor.com listing for the South Hamlin house.

The messages were as follows:

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“LISTING: Waiting on signed documents from seller. I guess, closing in next

few weeks.

DEFENDANT: Well I’m working on acquiring the deed as we speak. When I

get it can we sit down?

LISTING: You can call me, sure, but home is under contact and will only

remain on MLS until all signatures making it an executed contract.

DEFENDANT: Well, I’m filing a claim on the property with the recorder of

deeds in the morning.”

Defendant also sent a message that read, “That property is currently bank-owned, correct.”

¶ 23 According to defendant, the message that the house was under contract meant that

defendant still had an opportunity to acquire the property. Defendant maintained that the bank

only had constructive possession of the house, indicating that the bank had not actually taken

possession of the property.

¶ 24 To impeach defendant’s testimony, the State entered into evidence certified statements of

conviction that indicated that defendant had two prior burglary convictions.

¶ 25 In closing, the State asserted that defendant used deception to obtain unauthorized control

of the South Hamlin house. The State recounted what it asserted was evidence of defendant’s

guilty mind: he always appeared ready to present bogus documents, portions of the documents

were untrue, he lied to Officer Lecompte that he bought the property, and he lied to Officer

Whelan that he paid the back taxes on the property. According to the State, defendant would not

have lied if he believed he had ownership by adverse possession. The State also noted that

defendant entered the house with a screwdriver and that defendant knew the house was bank-

owned. Additionally, the State asserted that adverse possession was “designed for people who

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lived out in the country” and defendant’s various notices were meaningless. The State

characterized defendant’s efforts as “a bunch of subterfuge.”

¶ 26 Defense counsel contended in closing that whether defendant was entitled to adverse

possession was not relevant. Defense counsel asserted that defendant thought he was acting

legally and noted that no one told defendant to leave the house. Defense counsel further stated

that defendant believed he had to file his documents to establish his rights to the house.

¶ 27 Ultimately, defendant was found guilty of burglary. In its ruling, the court stated in part

that it had reviewed the arguments of the parties and the allegation that defendant “was legally in

possession of the property due to adverse possession.” The court also noted that the matter came

down to a credibility question. The court stated that defendant’s documents were lacking in

content and did not support the notion that defendant had continued, uninterrupted possession of

the property. The court additionally found that the adverse possession defense “was a huge

scam” and stated it did not believe defendant “one bit.”

¶ 28 Subsequently, defendant filed a motion to dismiss, or in the alternative, for a new trial.

Defendant contended that the State failed to prove he had the requisite criminal intent for

burglary. According to defendant, his actions showed that whether or not he had the legal right to

take the house, he believed his actions were authorized under law and he did what he believed

was necessary to legally acquire the house. Defendant also asserted that he relied on legal

authority that he believed allowed him to act as he did. Additionally, defendant contended that

the indictment should be dismissed and he should be released because his right to a speedy trial

was violated. Following a hearing, the court denied defendant’s motion.

¶ 29 Turning to sentencing matters, a presentence investigation report (PSI) indicated that

defendant was 33 years old and had completed some college. According to the PSI, defendant

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had received a full academic scholarship after high school to attend Iowa State University, where

his major was computer engineering. Defendant later left that school and went on to attend

DeVry Institute. The PSI also stated that defendant had worked full-time at the Ford assembly

plant in Chicago from February 2012 until he was arrested in September 2013. Previously,

defendant worked for Southern Electric Coil in Indiana. The PSI further stated that while he was

at the Cook County jail, defendant completed a culinary arts class and received a certificate in

sanitation. Additionally, the PSI noted that defendant was in a long-term relationship with the

mother of his 12-year-old son.

¶ 30 At the sentencing hearing, the State noted defendant’s criminal history and stated that he

was a Class X offender. The State asserted that defendant was convicted of burglary in 2009, for

which he was sentenced to two years’ probation. The State also noted that defendant violated that

probation when he committed another burglary, for which he was sentenced to 5½ years in

prison and was discharged on March 27, 2013. The State asserted that in total, defendant

committed three burglaries in about five years. Additionally, the State contended that the

burglary here involved an entire home and the victims included the owner and prospective

buyers. The State asked for a sentence of 10 years.

¶ 31 Defense counsel noted that defendant participated in numerous programs while in jail.

Defense counsel also stated that defendant was working full-time when the incident occurred and

he had reestablished a relationship with the mother of his child. Defense counsel further asserted

that defendant could likely go back to his job when he was released. Additionally, defense

counsel contended that defendant had been very open about his conduct.

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¶ 32 Defendant also presented a statement at the sentencing hearing. Defendant stated that he

did not have any ill intent and that the house had been abandoned. Defendant further stated that

he thought he was acting legally and had tried to provide a home for his family.

¶ 33 In sentencing defendant to nine years in prison as a Class X offender, the court

acknowledged that the State had presented certified copies of defendant’s convictions, which

were both Class 2 felonies. The court further stated that it considered the evidence presented in

aggravation and the mitigation evidence about defendant’s participation in programs while

incarcerated. According to the court, however, defendant lacked rehabilitative potential, as he

committed this burglary only six months after his release from prison for a previous burglary.

The court characterized the instant offense as “a scam which this [d]efendant thought he could

get away with.” Additionally, the court found it insulting that defendant represented that the

buyers of the house were at fault. The court stated that it was “obviously preposterous” that

defendant tried to act as if he rightfully belonged in the house. The court asserted that in

fashioning the sentence, it considered defendant’s acts and statements, as well as his failure to

take responsibility. The court concluded that:

“When I considered all those facts as well as the mitigation that’s been

presented with regards to the [d]efendant’s family, his prior employment, and

what he’s done while in the custody of the Department of Corrections, it’s the

sentence of this Court you will be sentenced to nine years in the Illinois

Department of Corrections.”

¶ 34 The parties agreed that defendant had spent 364 days in presentence custody. Defendant

was assessed various charges, including a $5 electronic citation fee, $5 court system fee, $15

State Police operations fee, $2 State’s Attorney records automation fee, $2 public defender

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records automation fee, $15 automation fee, and $15 document storage fee. In all, defendant’s

fines, fees, and costs totaled $479, which was reduced to $399 by defendant’s presentence

custody credit.

¶ 35 Defendant subsequently appealed.

¶ 36 II. ANALYSIS

¶ 37 A. Sufficiency of the Evidence

¶ 38 On appeal, defendant first contends that the State failed to prove defendant guilty beyond

a reasonable doubt because he never intended to commit a theft. Defendant argues that he set out

on a misguided, but earnest attempt to acquire a home for his family through adverse possession.

Defendant asserts that he was trying to follow the law of adverse possession and continuously

attempted to possess the house openly and notoriously without trying to conceal his actions.

Defendant further states that he thought the house was abandoned and no one ever told him to

leave the property, which reaffirmed his belief that he was acting properly. Defendant

additionally argues that the trial court misunderstood his defense and the State’s closing

argument reinforced that misunderstanding.

¶ 39 When reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is

whether, after viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt. People v.

Sutherland,

(1992). The reviewing court must not retry the defendant. People v.

Cunningham,

(2004). Instead, “[t]he reviewing court must carefully

examine the record evidence while bearing in mind that it was the fact finder who saw and

heard” the witnesses.

. In a bench trial, it is for the trial judge to determine the

credibility of the witnesses, weigh and draw reasonable inferences from the evidence, and

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resolve any conflicts in the evidence. People v. Slim,

(1989). At the same

time, a reviewing court considers all of the evidence, and not just the evidence convenient to the

State’s theory of the case. People v. Wheeler,

(2007). Additionally, a

reviewing court “may affirm on any grounds in the record, regardless of whether the trial court

relied on those grounds or whether the trial court’s reasoning was correct.” Vulpitta v. Walsh

Construction Co.,

. We “will not reverse a criminal conviction

unless the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable

doubt of the defendant’s guilt.” (Internal quotation marks omitted.) Sutherland,

.

¶ 40 As charged here, a person commits burglary when without authority he knowingly enters

or without authority remains within a building with intent to commit therein a theft. 720 ILCS

5/19-1 (West 2012). At issue is only whether the evidence was sufficient to prove that defendant

intended to commit a theft. Intent may be proven through circumstantial evidence. People v.

Rudd,

. Relevant considerations include the time, place, and

manner of entry into the premises, the defendant’s activity within the premises, and any

alternative explanations for his presence. People v. Maggette,

(2001).

Further, the question is not whether any possible innocent explanation exists, but whether the

evidence was sufficient to allow a rational trier of fact to infer that the defendant intended to

commit theft when he entered the building. See Rudd,

.

¶ 41 Although we agree with defendant that whether he actually met the elements of adverse

possession is not relevant, a brief summary of adverse possession is helpful. To establish title by

adverse possession, the claimant must prove possession of a property for a 20-year period and

the “possession must have been (1) continuous; (2) hostile or adverse; (3) actual; (4) open,

notorious, and exclusive; and (5) under claim of title inconsistent with that of the true owner.”

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(Internal quotation marks omitted.) Brandhorst v. Johnson,

; 735

ILCS 5/13-101 (West 2012). Alternatively, a claimant can show actual and adverse possession of

lands for seven years, contemporaneously with paying taxes under color of title. 735 ILCS 5/13­

109 (West 2012); Malone v. Smith,

(2005).

¶ 42 To be sure, there was evidence that defendant was indeed trying to adversely possess the

South Hamlin house. Defendant filed documents with the Cook County recorder of deeds and

testified that he notified various government agencies of his plans. Evidence was presented that

defendant acted openly. According to Robert McDonough, who lived next door, defendant

introduced himself and moved his belongings into the house during the evening hours. Defendant

reported that he cut the grass. Additionally, defendant maintained that he was trying to obtain a

property for himself and his family and that he believed that filing the paperwork would

commence the period of adverse possession.

¶ 43 At the same time, there was also evidence that the adverse possession claim was a ruse,

and that defendant’s true intentions were to steal the house from the prospective buyers. Per the

text messages presented at trial, defendant was informed that the house was under contract and

that it would close in a few weeks. Officer Whelan testified that defendant told him that he had

bought the house for back taxes, which we acknowledge that defendant denied. Officer

Lecompte testified that defendant told him defendant had just bought the house and wanted an

escort while defendant changed the locks. John Collins, another neighbor, testified that he

observed defendant and another person use a crowbar to pry open a door on the garage. As for

the differing accounts of defendant’s statements, it was for the trier of fact to resolve

inconsistencies across the witnesses’ testimony. People v. Brazziel,

(2010). Moreover, even if defendant’s version of events was the only one, the trial court did not

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need to believe it, and could consider other facts and circumstances in the record that tended to

contradict the defendant’s story or at least raised serious questions about its probability. People

v. Price,

(1987). Based on defendant’s conflicting statements and

suspicious behavior, the trial court could reject defendant’s claim that he made an earnest

attempt to acquire the house, and instead find that defendant used his adverse possession

documents as cover for his plan to steal the house. Further, “[t]he trier of fact is best equipped to

judge the credibility of witnesses, and due consideration must be given to the fact that it was the

trial court *** that saw and heard the witnesses.” Wheeler,

. The case

essentially hinged on whether the trial court believed that defendant’s adverse possession claim

was sincere. The court did not believe so, and other evidence indicated that defendant intended to

commit a theft of the house. We reject defendant’s challenge to the sufficiency of the evidence of

his intent.

¶ 44 B. Excluded Testimony

¶ 45 Next, defendant asserts that the trial court denied him of his right to present a defense

when it prevented him from testifying about how and what he learned about adverse possession.

Defendant states that defense counsel repeatedly tried to elicit testimony about how and what

defendant learned about adverse possession, but the trial court improperly excluded the

statements as hearsay. Defendant argues that the testimony at issue did not go to the truth of the

matter asserted and would have explained why defendant acted as he did. Defendant contends

that by preventing this testimony, the trial court precluded defendant from establishing that he

did not possess the necessary intent for burglary.

¶ 46 “A criminal defendant is constitutionally guaranteed a meaningful opportunity to present

a complete defense.” (Internal quotation marks omitted.) People v. Burgess, 2015 IL App (1st)

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130657, ¶ 133. As noted above, defendant asserts that the trial court prevented him from

presenting a complete defense by improperly excluding certain testimony as hearsay, which is

defined as an out-of-court statement offered to establish the truth of the matter asserted. People

v. Dunmore,

(2009). The primary rationale for excluding hearsay

testimony “is the inability of the opposition to test the testimony’s reliability through cross-

examination of the out-of-court declarant.” People v. Weatherspoon,

(2009). Relevant here, “[a]n out-of-court statement offered to prove its effect on a listener’s mind

or to show why the listener subsequently acted as he did is not hearsay and is admissible.”

(Internal quotation marks omitted.) People v. Sorrels,

(2009). This

court reviews a trial court’s decision about the admission of hearsay for an abuse of discretion. In

re Jovan A.,

.

¶ 47 Defendant points to the following portions of testimony that he states were improperly

excluded: (1) what Torrez Moore told defendant after defendant’s release; (2) after defendant

saw a listing for the South Hamlin house on Realtor.com and contacted a number, whether

defendant had been told by anyone what to do to acquire a property and what he was told to file;

(3) what the police told defendant when he told the police he needed an escort to change the

locks; and (4) why he sent paperwork to the Cook County sheriff. The State responds that

defendant forfeited the claim that the trial court deprived him of the right to present a defense

because he failed to raise it in his motion for a new trial.

¶ 48 To preserve an alleged error for appeal, a party must both object at trial and raise the

issue in a written posttrial motion. People v. Enoch,

(1988). Recognizing

that defense counsel did not raise the claim at issue in his motion for a new trial, defendant

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proposes three grounds for review: as a constitutional issue that was raised at trial, as plain error,

and on the basis that his counsel was ineffective for failing to preserve the alleged error.

¶ 49 Our supreme court has stated that three types of claims are not subject to forfeiture for

failing to file a posttrial motion: (1) constitutional issues that were properly raised at trial and

may be raised later in a postconviction petition, (2) challenges to the sufficiency of the evidence,

and (3) plain errors. People v. Cregan,

(citing Enoch,

).

See also People v. Almond,

. The constitutional issues exception is rooted

in judicial economy. Cregan,

. “If a defendant were precluded from raising

a constitutional issue previously raised at trial on direct appeal, merely because he failed to raise

it in a posttrial motion, the defendant could simply allege the issue in a later postconviction

petition.” Id. ¶ 18.

¶ 50 The key phrase here is “properly raised at trial.” Here, the constitutional issues exception

is not available to defendant because he did not raise a constitutional issue at trial. Defendant

asserts that he was denied his constitutional right to present a defense and that a constitutional

issue was raised during the State’s motion in limine before trial and through defense counsel’s

argument via the State’s objections at trial. The record indicates otherwise. The State’s motion in

limine sought to bar any testimony from defendant about other properties that were obtained in a

similar fashion that defendant tried to obtain the South Hamlin house. The State asserted that it

had never been provided with the names of the owners or addresses for those properties,

information about those properties was irrelevant, any such testimony would be hearsay, and the

State had not had an opportunity to investigate those properties. In response, defense counsel

stated that the only testimony on that topic would be that defendant had a family member who

acquired two properties and connected him to the person who helped him acquire the South

-20­ No. 1-14-2877

Hamlin house. Defense counsel stated that the testimony would “just be part of what happened,

which would be leaving out a piece if it wasn’t put in there.” The court ultimately found the

State’s motion premature. In the exchange about the motion in limine, defense counsel noted that

not including certain testimony “would be leaving out a piece,” but defense counsel did not raise

a constitutional issue. Defendant also asserts that a constitutional issue was raised during the

State’s objections to portions of defendant’s testimony that defendant states were improperly

excluded. However, defense counsel’s arguments about why certain testimony should be

admitted related to whether the statements were hearsay or not. Again, there was no mention that

to exclude those statements would deny defendant his constitutional right to present a defense.

Further, our review of the record does not indicate that defendant ever asserted that he was

denied his constitutional right to present a defense.

¶ 51 For the constitutional issue exception to apply, the defendant must have properly raised a

constitutional issue at trial. People v. Burnett,

. Because

defendant did not assert that excluding defendant’s testimony would prevent him from presenting

a defense, the constitutional issue exception is not available to defendant. See id. ¶¶ 72, 76-79

(where the defendant objected to a statement at trial on the grounds that the statement did not fit

various statutory exceptions to the hearsay rule, the constitutional issue exception did not apply

to the defendant’s claim on appeal that by admitting the statement into evidence, his sixth

amendment right to confront and cross-examine witnesses against him was violated).

¶ 52 We next address defendant’s request for plain error review. “[T]he plain-error doctrine

allows a reviewing court to consider unpreserved error when (1) a clear or obvious error

occurred and the evidence is so closely balanced that the error alone threatened to tip the scales

of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or

-21­ No. 1-14-2877

obvious error occurred and that error is so serious that it affected the fairness of the defendant’s

trial and challenged the integrity of the judicial process, regardless of the closeness of the

evidence.” People v. Piatkowski,

(2007). The first step is to determine

whether any error occurred. People v. Thompson,

(2010).

¶ 53 Here, we agree with defendant that the trial court should have admitted the statements at

issue because they were not hearsay—they were offered to show why defendant acted as he did.

See Weatherspoon,

(statement offered to explain why the witness acted in

a particular way is not hearsay). The testimony about Torrez Moore would have explained why

he began the adverse possession process. The testimony about whether defendant was told what

to do and file would have explained why took the steps he did. The testimony about what the

police told defendant about changing the locks would have explained why he went to the police

station. Further, the testimony about the Cook County sheriff was intended to explain why

defendant sent the documents to him.

¶ 54 However, plain error requires that the error was reversible error, which did not occur

here. See People v. Naylor,

(2008) (stating that absent reversible error,

there is no plain error, and considering whether the trial court committed reversible error before

determining whether the evidence at trial was closely balanced). Improper exclusion of

testimony about a defendant’s intent or motive that is essential to his defense is reversible error

unless other sufficient evidence of his intent or motive is admitted at trial. People v. Miller,

(2002). See also People v. Upton,

(1992)

(improper exclusion of state-of-mind testimony by an accused that is essential to his defense will

ordinarily constitute reversible error unless other sufficient evidence of intent is admitted at

trial). Here, even though the trial court excluded some of defendant’s testimony about why he

-22­ No. 1-14-2877

acted as he did, there was ample additional testimony related to defendant’s alleged attempt to

acquire the house through adverse possession. Defendant testified that he learned about adverse

possession in prison and that his cousin had acquired a property through adverse possession.

Defendant also described his understanding of what he had to do to acquire a house by adverse

possession. Additionally, defendant testified that he searched for a home on Realtor.com and

thought the South Hamlin house had been abandoned. Defendant further stated that he thought

he still had the opportunity to acquire the house. Defendant also testified that he filed documents

because he thought that would begin the period of adverse possession and that he sent the

documents to several government agencies to give notice. Overall, defendant presented much

testimony in support of his claim that he believed that he was acting legally via adverse

possession. Under these circumstances, the trial court’s exclusion of the testimony noted above

was not reversible error. Compare Weatherspoon,

(no reversible error

where, although the defendant was not permitted to testify that a group threatened him or that he

felt fearful as a result, the alleged threat was presented through other means and the evidence and

arguments were sufficient to acquaint the jury with an explanation of his flight that was

compatible with his innocence), with Miller,

(reversible error where

there was no explanation allowed for the defendant’s conduct). As there was no reversible error,

there was no plain error.

¶ 55 Defendant also asserts that his counsel was ineffective for failing to argue in a posttrial

motion that the trial court should reverse its earlier exclusion of his testimony. To succeed on a

claim of ineffective assistance of counsel, a defendant must show that his counsel’s performance

was deficient and that the deficient performance prejudiced the defense. Strickland v.

Washington,

(1984). As for prejudice, a defendant must show that counsel’s

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errors were so serious as to deprive the defendant of a fair trial whose result is reliable.

Further, there must be a reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. People v. Patterson,

(2000). A

reasonable probability is “ ‘a probability sufficient to undermine confidence in the outcome.’ ”

(quoting Strickland,

). An ineffective assistance claim can be disposed of on

the grounds that the defendant was not prejudiced, without deciding whether counsel’s

performance was deficient. People v. Caballero,

(1989).

¶ 56 Here, we find that defendant’s counsel was not ineffective because defendant was not

prejudiced by counsel’s failure to raise the hearsay issue in a posttrial motion. As noted above,

defendant was given ample opportunity to present his defense that he believed he was legally

pursuing adverse possession. Thus, counsel’s failure to preserve the error did not deprive

defendant of a fair trial.

¶ 57 Because defendant cannot claim the constitutional issue exception, the hearsay issue does

not constitute plain error, and counsel was not ineffective on this point, defendant has forfeited

his argument. See Palm v. 2800 Lake Shore Drive Condominium Ass’n,

(forfeiture applies when an issue is not raised in a timely manner).

¶ 58 C. Excessive Sentence

¶ 59 Next, defendant contends his nine-year sentence was excessive in light of various

mitigating factors. Defendant notes that he thought he was following the procedures required to

adversely possess the South Hamlin house. Additionally, defendant states that the house was

vacant and bank-owned when defendant occupied it. According to defendant, the trial judge also

did not adequately consider defendant’s rehabilitative potential. Defendant acknowledges his

past burglaries, but asserts that he had strong family ties, a full-time job, and accomplishments

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while incarcerated. Defendant contends that his mitigation evidence was not reflected in his

sentence.

¶ 60 The Illinois Constitution states that “[a]ll penalties shall be determined both according to

the seriousness of the offense and with the objective of restoring the offender to useful

citizenship.” Ill. Const. 1970, art. I, § 11. The trial court has broad discretionary powers in

imposing a sentence, and the trial court’s decision is entitled to great deference. People v. Stacey,

(2000). This reflects the circumstance that the trial court is normally in a

better position than a reviewing court to consider such factors as credibility, demeanor, general

moral character, mentality, social environment, habits, and age. People v. McCain,

(1993). This court will not disturb a sentence that falls within the statutory limits

unless the trial court abused its discretion. People v. Brooks,

(1998).

¶ 61 The State asserts, and defendant recognizes, that defendant’s sentencing claim would

ordinarily be forfeited because defense counsel did not file a motion to reconsider the sentence.

See 730 ILCS 5/5-4.5-50(d) (West 2012) (“A defendant’s challenge to the correctness of a

sentence or to any aspect of the sentencing hearing shall be made by a written motion filed with

the circuit court clerk within 30 days” after the sentence is imposed). Defendant urges this court

to review his excessive sentence claim for plain error and contends that his counsel was

ineffective for failing to preserve the matter.

¶ 62 To establish plain error in the sentencing context, a defendant must show either that (1)

the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as

to deny the defendant a fair sentencing hearing. People v. Hillier,

(2010).

Defendant also asserts that sentencing issues are excepted from the doctrine of waiver because

they affect a defendant’s substantial rights, citing People v. Owens,

, 304

-25­ No. 1-14-2877

(2007). We decline the invitation to shortcut the plain error analysis. To clarify, the alleged error

here was forfeited rather than waived. See Palm,

(forfeiture applies when

an issue is not raised in a timely manner). More to the point, the principle that sentencing errors

are always reviewable as plain error was rejected by People v. Rathbone,

(2003) (“it is not a sufficient argument for plain error review to simply state that because

sentencing affects the defendant’s fundamental right to liberty, any error committed at that stage

is reviewable as plain error”). Other cases have followed Rathbone, and we do so here as well.

See, e.g., People v. Hanson,

(noting the court has declined

to automatically apply the plain error doctrine to forfeited sentencing claims); People v. Ahlers,

(2010) (following Rathbone). Defendant must meet the

requirements of the plain error doctrine to avoid forfeiture. See People v. Smith,

(2001) (stating that the defendant must demonstrate that his sentence amounted to a

plain error to circumvent waiver).

¶ 63 As noted above, the first step of plain error review is determining whether any error

occurred. Thompson,

. Here, there was no error because defendant’s nine-year

sentence was not an abuse of discretion. Due to his background, defendant was sentenced as a

Class X offender, which carries a sentencing range of 6 to 30 years. 730 ILCS 5/5-4.5-95(b), 5­

4.5-25(a) (West 2012). A sentence within the statutory limits will be deemed excessive and an

abuse of discretion “where the sentence is greatly at variance with the spirit and purpose of the

law, or manifestly disproportionate to the nature of the offense.” Stacey,

. While

the trial court must consider rehabilitation, the trial court does not need to give more weight to

the goal of restoring the defendant to useful citizenship than it places on the seriousness of the

offense. People v. Johnson,

(1990). Further, while the trial court may

-26­ No. 1-14-2877

not disregard mitigating evidence, it may determine the weight to attribute to such evidence.

People v. Markiewicz,

(1993).

¶ 64 Here, the record indicates that the trial court considered mitigating evidence, but

determined that it was outweighed by other factors. In announcing the sentence, the trial court

stated that it had considered mitigating evidence, such as defendant’s participation in programs

while incarcerated, his family ties, and his prior employment. However, the court found that

defendant lacked rehabilitative potential, stating that defendant committed the instant burglary

only six months after his release from prison for a previous burglary. The court also stated that

defendant failed to take responsibility and that his conduct amounted to a scam. It was the trial

court’s responsibility to strike the appropriate balance between rehabilitating defendant and the

seriousness of the offense. Johnson,

. Additionally, defendant has the

burden to show that the trial court did not consider the rehabilitative evidence and mitigating

factors before it. Brazziel,

. We also note that where relevant mitigating

evidence is before the court, we presume the court considered it, absent some indication in the

record to the contrary other than the sentence itself. People v. Dominguez,

(1994). Here, the record indicates that the trial court considered mitigating evidence, but

gave it less weight than other factors, which the trial court was entitled to do. This court may not

substitute its judgment for that of the trial court merely because it would have weighed the

various factors differently. Stacey,

.

¶ 65 Defendant also urges this court to compare his circumstances to those of the defendant in

another case, People v. Center,

(1990). We decline to do so, as our

supreme court has rejected an approach that compares sentences between defendants in unrelated

cases. See People v. Fern,

(1999). The trial court here did not abuse its

-27­ No. 1-14-2877

discretion in sentencing defendant. As there is no error, there cannot be plain error either. See

Thompson,

.

¶ 66 Defendant further contends that his counsel was ineffective for failing to file a motion to

reconsider the sentence. As noted above, to succeed on an ineffective assistance of counsel

claim, a defendant must show that his counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland,

. We reiterate that to show

prejudice, there must be a reasonable probability that but for counsel’s errors, the result of the

proceeding would have been different. Patterson,

. Additionally, a claim can be

disposed of on the ground that the defendant was not prejudiced by counsel’s alleged error

without deciding whether counsel’s performance was deficient. Caballero,

.

Here, there is not a reasonable probability that the sentence would have been different if counsel

had filed a motion to reconsider the sentence. A motion to reconsider the sentence would not

have changed the result where the mitigating evidence that defendant highlights was considered

by the trial court at the sentencing hearing.

¶ 67 Overall, because there is no plain error and counsel was not ineffective, defendant’s

challenge to his sentence is forfeited.

¶ 68 D. Fines and Fees

¶ 69 Finally, defendant challenges certain charges that were imposed. Defendant contends that

this court should vacate the $5 electronic citation fee and $5 court system fee. Defendant also

asserts that this court should grant $5 per day credit for time served to offset the $15 State Police

operations fee, $2 public defender records automation fee, $2 State’s Attorney records

automation fee, $15 automation fee, and $15 document storage fee.

-28­ No. 1-14-2877

¶ 70 Defendant did not raise the propriety of the charges in the trial court, and ordinarily, the

matter would be forfeited. Generally, to preserve a claim of a sentencing error, a defendant must

make a contemporaneous objection and file a written postsentencing motion. Hillier,

. However, the rules of waiver and forfeiture also apply to the State. People v. Reed,

, ¶ 13. The State does not raise forfeiture, and so we will address the

merits of defendant’s claims. Id. We also note that per Illinois Supreme Court Rule 615(b)(1), we

may reverse, affirm, or modify the judgment or order from which the appeal is taken without

remand. We review the propriety of assessed fees and fines de novo because the matter raises a

question of statutory interpretation. People v. Price,

(2007).

¶ 71 As for the electronic citation fee and court system fee, we find, and the State concedes,

that they should be vacated because they do not apply to burglaries. The electronic citation fee is

to be paid by a defendant “in any traffic, misdemeanor, municipal ordinance, or conservation

case upon a judgment of guilty or grant of supervision.” 705 ILCS 105/27.3e (West 2012). The

court system fee is to be paid by a defendant “on a judgment of guilty or a grant of supervision

for violation of the Illinois Vehicle Code *** or violations of similar provisions contained in

county or municipal ordinances committed in the county.” 55 ILCS 5/5-1101(a) (West 2012).

Burglary does not fall into the categories listed in either statute. As a result, we vacate those

charges.

¶ 72 Next, defendant asserts that he is entitled to $5 per day credit for time served against the

State Police operations fee, public defender records automation fee, State’s Attorney records

automation fee, automation fee, and document storage fee.

¶ 73 Section 110-14(a) of the Code of Criminal Procedure provides that anyone incarcerated

on a bailable offense who does not supply bail and against whom a fine is levied on conviction of

-29­ No. 1-14-2877

that offense is allowed a credit of $5 per day. 725 ILCS 5/110-14(a) (West 2012). Whether

defendant is entitled to presentence custody credit depends on whether the charges at issue are

fees or fines, which is a matter of statutory of interpretation that we review de novo. People v.

Jones,

(2006). The label used by the legislature for a given charge is not

necessarily definitive.

. Instead, we follow the framework set out in People v. Graves,

(2009), for deciding whether a charge is a fee or fine. “A ‘fee’ is defined as a

charge that ‘seeks to recoup expenses incurred by the state,’ or to compensate the state for some

expenditure incurred in prosecuting the defendant.”

at 250 (quoting Jones,

).

“A ‘fine’ *** is ‘punitive in nature’ and is ‘a pecuniary punishment imposed as part of a

sentence on a person convicted of a criminal offense.’ ” (Internal quotation marks omitted.)

(quoting Jones,

). “[T]he most important factor is whether the charge seeks to

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

¶ 74 As for the State Police operations fee (705 ILCS 105/27.3a(1.5) (West 2012)), we find,

and the State concedes, that it is a fine and therefore it is offset by defendant’s presentence

custody credit. See People v. Maxey,

; People v. Moore, 2014

App (1st) 112592, ¶ 46.

¶ 75 Next, we turn to the State’s Attorney records automation fee (55 ILCS 5/4-2002.1(c)

(West 2012)) and public defender records automation fee (55 ILCS 5/3-4012 (West 2012)).

Defendant contends these charges are fines. The State’s Attorney records automation fee is:

“to be paid by the defendant on a judgment of guilty or a grant of supervision for

a violation of any provision of the Illinois Vehicle Code or any felony,

misdemeanor, or petty offense to discharge the expenses of the State’s Attorney’s

office for establishing and maintaining automated record keeping systems. The

-30­ No. 1-14-2877

fee shall be remitted monthly to the county treasurer, to be deposited by him or

her into a special fund designated as the State’s Attorney Records Automation

Fund. Expenditures from this fund may be made by the State’s Attorney for

hardware, software, research, and development costs and personnel related

thereto.” 55 ILCS 5/4-2002.1(c) (West 2012).

¶ 76 Reviewing courts have found that this charge is a fee. See People v. Taylor,

(stating that charge is compensatory rather than punitive); People v. Warren,

(finding that per the plain language of the statute, the

assessment is intended to reimburse State’s Attorneys for expenses related to automated record-

keeping systems, and so the assessment is a fee); Reed,

, ¶ 16 (stating

that charge is compensatory in nature, and finding that the State’s Attorney would have utilized

its automated record keeping systems in prosecuting the defendant when it filed charges with the

clerk’s office and made copies of discovery, which were tendered to the defense); People v.

Rogers,

(stating that charge is a fee because it is intended to

reimburse the State’s Attorneys for their expenses related to automated record-keeping systems).

We recognize that a contrary result was reached in People v. Camacho,

, which found that the State’s Attorney and public defender records automation

assessments were fines. Nonetheless, we will follow the weight of authority that holds that the

State’s Attorney records automation fee is indeed a fee. As such, defendant may not offset that

charge with presentence custody credit.

¶ 77 Turning to the public defender records automation fee, this charge is:

“to be paid by the defendant on a judgment of guilty or a grant of supervision for

a violation of any provision of the Illinois Vehicle Code or any felony,

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misdemeanor, or petty offense to discharge the expenses of the Cook County

Public Defender’s office for establishing and maintaining automated record

keeping systems. The fee shall be remitted monthly to the county treasurer, to be

deposited by him or her into a special fund designated as the Public Defender

Records Automation Fund. Expenditures from this fund may be made by the

Public Defender for hardware, software, research, and development costs and

personnel related thereto.” 55 ILCS 5/3-4012 (West 2012).

¶ 78 This court has found that because the statutory language of the public defender records

automation fee is identical to that of the State’s Attorney records automation fee except for the

name of the organization, there is no reason to distinguish between the two statutes, and thus the

public defender charge is a fee as well. Maxey,

. Nonetheless,

we vacate the public defender records automation fee because defendant was represented by

private counsel at trial. Taylor,

.

¶ 79 Lastly, we turn to the automation fee and document storage fee, which defendant

contends are both fines. As for the automation fee, the Clerks of Courts Act states:

“The expense of establishing and maintaining automated record keeping systems

in the offices of the clerks of the circuit court shall be borne by the county. To

defray such expense in any county having established such an automated system

or which elects to establish such a system, the county board may require the clerk

of the circuit court in their county to charge and collect a court automation fee

***.” 705 ILCS 105/27.3a(1) (West 2012).

¶ 80 As for the document storage fee, the Clerks of Courts Act states:

-32­ No. 1-14-2877

“The expense of establishing and maintaining a document storage system in the

offices of the circuit court clerks in the several counties of this State shall be

borne by the county. To defray the expense in any county that elects to establish a

document storage system and convert the records of the circuit court clerk to

electronic or micrographic storage, the county board may require the clerk of the

circuit court in its county to collect a court document fee ***.” 705 ILCS

105/27.3c(a) (West 2012).

¶ 81 This court has found that the automation and document storage charges are fees because

they “are compensatory and a collateral consequence” of a conviction. People v. Tolliver,

(2006). Defendant asserts that the basis for the Tolliver decision cannot survive

our supreme court’s more recent decision in Graves,

. However, Tolliver

used the same framework as was set forth in Graves for determining whether a charge is a fee or

fine. See Tolliver,

(stating that a fee is a charge for labor or services and

is compensatory in nature, while a fine is a pecuniary punishment imposed as part of a criminal

sentence); Graves,

(stating that a fee compensates the state for some

expenditure incurred in prosecuting the defendant, while a fine is a pecuniary punishment

imposed as part of a sentence on a person convicted of a criminal offense). Tolliver is consistent

with Graves, and as such, we follow its finding that the automation and document storage

charges are fees that cannot be offset by presentence custody credit.

¶ 82 In sum, we vacate the $5 electronic citation fee, $5 court system fee, and $2 public

defender records automation fee. The $15 State Police operations fee is offset by defendant’s

presentence custody credit. With these corrections, defendant’s fines, fees, and costs total $372.

¶ 83 III. CONCLUSION

-33­ No. 1-14-2877

¶ 84 For the foregoing reasons, the judgment of the circuit court is affirmed and we order the

clerk of the circuit court to correct the order assessing fines, fees, and costs.

¶ 85 Affirmed; fines, fees, and costs order corrected.

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