Opinion filed April 5, 2017 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-15-0165 v. ) Circuit No. 14-CF-573

)

DAEJOHN WILSON, ) Honorable

) Kevin W. Lyons, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

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

OPINION

¶1 Defendant, Daejohn Wilson, appeals from his convictions for aggravated battery and

unlawful possession of a firearm. Defendant argues that (1) his sentence is excessive and (2) he

is subject to an unauthorized crimestopper’s fine. We affirm.

¶2 FACTS

¶3 Defendant was charged by indictment with aggravated battery (720 ILCS 5/12-3.05(e)(1)

(West 2014)), a Class X felony, and unlawful possession of a firearm (720 ILCS 5/24-3.1(a)(2) (West 2014)), a Class 4 felony. Count I alleged defendant shot and injured Bilal Marcus Wilkins

by discharging a firearm. Count II alleged defendant was under 21 years of age, and he

knowingly possessed a handgun after he had been adjudicated a delinquent for the offense of

aggravated battery in case No. 11-JD-158. A jury found defendant guilty of both charges. The

court ordered a presentence investigation report (PSI) and set the cause for a sentencing hearing.

¶4 At the sentencing hearing, defendant’s mother, Carsanders Devine, testified that

defendant was assigned an individualized education plan (IEP) when he was in kindergarten.

Defendant continued in the IEP until he dropped out of school in the 12th grade. While he was

growing up, defendant was subjected to bullying. During his teenage years, defendant received

mental health services until the program was terminated due to budget cuts.

¶5 Defendant’s PSI indicated he was 19 years old at the time of sentencing and he had

several prior juvenile offenses. The PSI stated defendant’s medical records included diagnoses

for depressive disorder, oppositional defiant disorder, and cannabis abuse. Defendant’s

educational records included several disciplinary actions and details of defendant’s 12th-grade

expulsion. As of the date of the PSI, defendant had not earned his high school or general

education diploma.

¶6 Defendant included with his PSI nine letters from family and community members. The

letters each attested to defendant’s good character. In a letter to the court, defendant said he had

obtained certifications in welding, blue-print reading, construction, and bible study.

¶7 In allocution, defendant apologized for the situation that led to the criminal charges, with

the caveat that he was provoked. Defendant contended he had been subject to bullying and had

acted to protect himself.

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¶8 After discussing the evidence and factors in mitigation and aggravation, the court stated it

had considered the letters sent by defendant’s family and friends. The court also discussed

Devine’s testimony about seeking treatment for defendant’s mental illness when defendant was a

child; the reports of defendant’s misbehavior while in school, which included an expulsion; and

defendant’s juvenile adjudications. The court sentenced defendant to 18 years’ imprisonment for

aggravated battery and a concurrent term of 3 years’ imprisonment for unlawful possession of a

firearm. The court also entered a detailed supplemental sentencing order that imposed multiple

costs, including a $25 “Crimestopper Fee.” The supplemental order offset defendant’s fines by

201 days of $5-per-day credit. The order imposed a total of $842 in charges. Defendant appeals.

¶9 ANALYSIS

¶ 10 I. Excessive Sentence

¶ 11 Defendant argues his sentence is excessive because the court failed to adequately

consider in mitigation his youth, mental health issues, and potential for rehabilitation. Because

defendant points to no evidence refuting the court’s consideration of these factors and the

sentences were within the statutory ranges, we conclude defendant’s sentences were not the

result of an abuse of discretion.

¶ 12 The court’s sentencing determination is entitled to great deference and will not be altered

absent an abuse of discretion. People v. Alexander,

(2010). “A sentence will

be deemed 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.’ ”

(quoting

People v. Stacey,

(2000)). Generally, we will not substitute our judgment for

that of the circuit court as the circuit court had the opportunity to consider defendant’s

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credibility, demeanor, general moral character, mentality, social environment, habits, and age.

. We presume that a sentence that falls within the statutory range is not excessive.

People v. Busse,

, ¶ 27.

¶ 13 Defendant’s Class X felony conviction for aggravated battery carried a sentencing range

of 6 to 30 years’ imprisonment. 720 ILCS 5/12-3.05(h) (West 2014); 730 ILCS 5/5-4.5-25(a)

(West 2014). Defendant’s Class 4 felony conviction for unlawful possession of a firearm carried

a sentencing range of one to three years’ imprisonment. 720 ILCS 5/24-3.1(b) (West 2014); 730

ILCS 5/5-4.5-45(a) (West 2014).

¶ 14 Defendant’s sentences of 18 years’ imprisonment for aggravated battery and 3 years’

imprisonment for unlawful possession of a firearm were within the applicable sentencing range

and are presumptively valid. Busse,

. Moreover, we presume that,

in imposing these sentences, the court considered the relevant factors in mitigation. Id. ¶ 22. This

presumption is only overcome by affirmative evidence showing the court failed to consider the

mitigating factors. Id.

¶ 15 Here, defendant has not cited any affirmative evidence to show the court did not

sufficiently consider the mitigating factors of defendant’s youth, history of mental illness, and

potential for rehabilitation. To the contrary, the court first stated it had considered the factors in

mitigation. The court then explained it had considered defendant’s PSI, which contained the

relevant information about defendant’s age and history of mental illness and Devine’s testimony

that she sought treatment for defendant’s mental illness when he was a child. Therefore, the

record establishes that the court adequately considered the relevant factors in mitigation, and

defendant’s sentences were not the result of an abuse of discretion.

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¶ 16 II. Crimestopper’s Fine

¶ 17 Defendant argues the court erred in imposing a $25 “Crimestopper’s fine” 1 because the

fine is only statutorily authorized following the imposition of a sentence of probation or court

supervision and defendant was sentenced to a term of incarceration. The State argues the

crimestopper’s fine cannot be vacated because, in People v. Castleberry,

,

the supreme court abolished the void sentence rule, upon which the defendant relies.

¶ 18 The State misconstrues defendant’s argument. Defendant acknowledges he forfeited

review of the crimestopper’s fine, but he argues that Castleberry does not prohibit a vacatur

because: (1) Castleberry, Id. ¶¶ 25-26, limited a reviewing court’s authority to “address a request

by the State to increase a criminal sentence which is illegally low” and he is seeking elimination

of a statutorily unauthorized fine; and (2) the unauthorized crimestopper’s fine may be reviewed

under the second prong of the plain error doctrine (see People v. Lewis,

(2009)).

¶ 19 We find defendant did not raise this issue in the circuit court, and therefore, it is forfeited.

People v. Enoch,

(1988) (defendant forfeits appellate review when he does

not object to an issue in the circuit court or include it in a posttrial motion). Moreover, the

crimestopper’s fine was imposed by the circuit court who had jurisdiction to impose fines, and

therefore, it is merely voidable and not void. People v. Buffkin,

.

Unlike a void order, which can be challenged at any time, a voidable fine is subject to forfeiture.

1 In his brief, defendant refers to this assessment as the “Crimestopper’s fine”; however, in the supplemental sentencing order, this charge is titled “Crimestopper Fee.” As authority for this charge, the order cites to section 5-6-3(b)(13) of the Unified Code of Corrections (Code). 730 ILCS 5/5-6-3(b)(13) (West 2014). This subsection does not include the “crimestopper” title or “fine” or “fee” designation. In People v. Dowding,

(2009), the second district found that an assessment imposed under section 5-6-3(b)(13) of the Code (730 ILCS 5/5-6-3(b)(13) (West 2006)), which it called the “Crime Stoppers charge,” was a fine. Accordingly, we find that the charge at issue is properly recognized as the crimestopper’s fine.

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People v. Higgins,

. As defendant does not challenge the

jurisdiction of the circuit court, his argument is forfeited. Defendant seeks to avoid forfeiture by

arguing the crimestopper’s fine is reversible under the second prong of the plain-error doctrine.

¶ 20 The plain-error doctrine allows a reviewing court to consider an unpreserved issue where

“a clear or 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.” People v. Piatkowski,

(2007). Under the second prong, “[p]rejudice to the defendant is presumed

because of the importance of the right involved.” People v. Herron,

(2005).

Defendant bears the burden to “show that the error caused a severe threat to the fairness” of the

proceeding. (Emphasis in original.) People v. Hopp,

(2004). The first step of

plain error review is to determine if the court erred. People v. Thompson,

(2010).

¶ 21 Here, the court signed a supplemental sentencing order, which delineated each of the

fines and fees imposed with statutory authority. In doing so, the court clearly imposed a $25

crimestopper’s fine under section 5-6-3 of the Code. 730 ILCS 5/5-6-3(b)(13) (West 2014).

Section 5-6-3 of the Code provides that this charge may only be imposed where defendant is

sentenced to a term of probation.

Because defendant was sentenced to concurrent terms of

imprisonment, the court erred in imposing the crimestopper’s fine.

¶ 22 Finding error, we must now determine if the error is reversible under the second prong.

Defendant cites Lewis,

, in support of his argument that an unauthorized fine is

reversible under the second prong of plain error. For the reasons that follow, we find the

crimestopper’s fine is not reversible under the second prong.

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¶ 23 In Lewis,

, our supreme court held the circuit court’s imposition of a

street-value fine without conducting an evidentiary hearing was reversible plain error under the

second prong. See also 730 ILCS 5/5-9-1.1(a) (West 2004). Specifically, section 5-9-1.1(a) of

the Code required the circuit court to hold an evidentiary hearing to determine the amount of the

street value of the narcotics seized before imposing the fine. Lewis,

. The

circuit court’s failure to hold such a hearing deprived defendant of fair process in determining

the amount of the fine.

. As a result, the supreme court found the imposition of the fine

without evidentiary support implicated defendant’s right to a fair sentencing hearing and was

second prong plain error.

¶ 24 In contrast to Lewis, the instant court’s imposition of the crimestopper’s fine does not

deny defendant fair process. Section 5-6-3(b)(13) of the Code did not require the court to hold a

hearing or make a factual determination before imposing the crimestopper’s fine. 730 ILCS 5/5­

6-3(b)(13) (West 2014). Therefore, the fairness concerns at issue in Lewis are not implicated in

the present case.

¶ 25 More importantly, in this case, the trial court awarded defendant 201 days worth of $5­

per-day credit for a total credit of $1005. After reviewing the supplemental sentencing order, we

recognize the $1005 in awarded credit more than covers the $185 in charges that are judicially

classified as fines and compensable by the $5-per-day credit. The issue concerning the

crimestopper’s fine is moot because the fine may be legally satisfied by the application of

defendant’s $5-per-day credit. See Dowding,

(applying the $5-per-day

credit to defendant’s “$10 Crime Stoppers fine”); 725 ILCS 5/110-14(a) (West 2014).

Specifically, the case law provides a fine is part of defendant’s sentence, and once it is satisfied,

any challenge to the fine is rendered moot. See People v. Lynn,

(1984)

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(completion of a defendant’s sentence renders any challenge to the sentence moot). Therefore,

the court’s award of $1005 of $5-per-day credit has rendered defendant’s challenge to the

crimestopper’s fine moot.

¶ 26 CONCLUSION

¶ 27 The judgment of the circuit court of Peoria County is affirmed.

¶ 28 Affirmed.

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