NOTICE

Decision filed July 28, 2017. NO. 5-14-0493 The text of this decision may be changed or corrected prior to the filing of a Petition for IN THE Rehearing or the disposition of the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Marion County. ) v. ) No. 12-CF-345 ) ROBIN FRAZIER, ) Honorable ) Mark W. Stedelin, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Presiding Justice Moore and Justice Welch concurred in the judgment and opinion.

OPINION

¶1 After a bench trial in the circuit court of Marion County, defendant, Robin Frazier,

was convicted of criminal sexual assault based upon a position of trust, supervision, or

authority (720 ILCS 5/11-1.20(a)(4) (West 2010)) and sentenced to four years in the

Department of Corrections to be followed by three years to life of mandatory supervised

release. She was also fined and assessed fees and costs totaling $597. The two issues

raised in this direct appeal are (1) whether defendant was denied effective assistance of

counsel when trial counsel filed a motion to dismiss mid-trial on the basis that the

1 information did not state an offense and (2) whether the trial court correctly imposed

$597 in fines, fees, and costs. We affirm.

¶2 BACKGROUND

¶3 Defendant was employed as a counselor by Kemmerer Village, a residential

treatment facility for emotionally and behaviorally disturbed children ages 12 to 18.

Kemmerer Village is located near Assumption, Illinois, and consists of six cottages. On

July 24, 2011, a little after 10 p.m., defendant clocked out for the night after doing a final

bed check of the female residents assigned to her cottage. As defendant was leaving her

parking spot, one of the female residents, B.H., age 17, opened the passenger door and

got in defendant’s car. Defendant was aware of B.H.’s history of running away from not

only Kemmerer Village but also previous group homes where she resided.

¶4 Defendant said she “freaked out” when B.H. entered her car and used “bad

judgment” when she drove off the Kemmerer Village property with B.H. in her car. B.H.

asked defendant to take her to Chicago. Defendant refused but decided to take B.H. to

B.H.’s mother’s home in Mt. Vernon. B.H. had previously told defendant she wanted to

see her mother.

¶5 Defendant drove for about four hours when she started getting drowsy and stopped

at a hotel in Salem. Defendant and B.H. disagreed as to what took place at the hotel.

Defendant testified that she and B.H. rested for a few hours at the hotel before resuming

driving. B.H. testified they drank alcohol, smoked pot, and then defendant performed oral

sex on B.H.

2 ¶6 The instant charge came about after B.H.’s mother called authorities upon

discovering inappropriate text messages between defendant and B.H. On August 11,

2011, a Department of Children and Family Services (DCFS) investigator, Michael

Parkin, was assigned to investigate a report concerning B.H. The matter was ultimately

turned over to the Illinois State Police (ISP) because DCFS did not have the manpower to

conduct the investigation. ISP Special Agent Holly Finney interviewed defendant at

defendant’s residence.

¶7 Agent Finney testified that defendant admitted to engaging in oral sex with B.H.;

however, defendant’s statement was neither recorded nor put into writing. Defendant was

not arrested as a result of the admission. Over a year later, on December 3, 2012,

defendant was charged by information with one count of criminal sexual assault and

issued a notice to appear for her first court appearance on December 18, 2012.

¶8 On October 1, 2013, a bench trial ensued. The State’s first witness was B.H. After

B.H. answered four questions, defense counsel asked to approach the bench, where he

filed a motion to dismiss on the basis that the information “fails to adequately define the

nature of the position of trust, authority, or supervision held by [defendant].” Defendant

relied on the Third District case of People v. Sparks,

(1991), which

holds that the charging document, alleging the offense, must set out the nature of the

alleged position of trust, authority, or supervision.

¶9 The State responded by pointing out that the defense wanted to file the motion

after jeopardy attached so that the State would be unable to correct the deficiency. The

3 State argued it was unprepared to respond to the motion at that time and wanted the

opportunity to research the issue to see if there were more recent cases or cases from

other districts that hold contrary to Sparks. The State noted it had six witnesses ready for

trial, many of whom were required to drive for hours to get to court.

¶ 10 Defense counsel replied that, based upon his research, Sparks was good law, and

he failed to find any cases from other districts or our supreme court that modified Sparks.

He asserted he was not in a position to file the motion to dismiss before trial as jeopardy

would not have attached. If he filed the motion before trial, then the State would have

been allowed to amend the information. Under such circumstances, defense counsel

asserted he would have been guilty of ineffective assistance of counsel.

¶ 11 Defense counsel did not object to giving the State time to research the issue. A

discussion then ensued between the State, defense counsel, and the trial court as to how

to proceed. Ultimately, the trial court decided to continue the trial and decide defendant’s

motion to dismiss after the State had time to respond.

¶ 12 The State presented its case in chief. Witnesses included B.H., her mother, a

clinical manager at Kemmerer Village, a general manager at the Guesthouse Inn, DCFS

Investigator Michael Parkin, and Agent Holly Finney. After the witnesses testified,

defense counsel moved for a directed verdict. The trial court denied defendant’s motion.

The trial was then recessed to allow argument on defendant’s motion to dismiss.

¶ 13 On October 31, 2013, the trial court entered an order denying defendant’s motion

to dismiss, stating, inter alia, as follows:

4 “The court files reveal that the [d]efendant had 7 separate appearances in court

prior to trial. The [d]efendant waived preliminary hearing on January 15, 2013.

The [d]efendant received the specific answers to her discovery request on August

23, 2013. The [d]efendant opposed the continuance of the bench trial on August

20, 2013. At no time did the [d]efendant seek the dismissal of the [i]nformation or

file a request for bill of particulars. It is clear that the [d]efendant was sufficiently

appraised of the offense to prepare a defense.”

The trial court noted that because the information included the victim’s initials, date of

offense, nature of the contact between defendant and victim, as well as the allegation that

defendant held a position of trust, supervision, or authority over the victim, there was

sufficient specificity in the charging instrument.

¶ 14 The bench trial resumed on May 13, 2014. The defense called a detective from the

Christian County sheriff’s department, who testified that in May 2011, the victim falsely

accused another individual of a separate sexual assault. Defendant then took the stand and

testified that no sexual activity occurred between her and B.H. on the date in question and

that she never confessed or admitted to having sexual relations with B.H. during her

interview with Agent Finney.

¶ 15 After hearing all the evidence, the trial court found defendant guilty of criminal

sexual assault and sentenced her to four years in the Department of Corrections, followed

by three years to life of mandatory supervised release, and imposed fines, fees, and costs

in the amount of $597. Defendant filed a timely notice of appeal.

5 ¶ 16 ANALYSIS

¶ 17 I. Ineffective Assistance

¶ 18 The first issue on appeal is whether defendant was denied effective assistance of

counsel when defense counsel filed a motion to dismiss mid-trial on the basis that the

information did not state an offense. Defendant argues that by filing the motion mid-trial,

defense counsel subjected her to a higher standard of review than filing prior to trial,

which equates to a serious lapse of representation that cannot be dismissed as trial

strategy. We disagree.

¶ 19 In order to succeed on a claim of ineffective assistance of counsel, it must be

shown that (1) counsel’s performance fell below an objective standard of reasonableness

and (2) there is a reasonable probability that, but for counsel’s professional errors, the

result of the proceeding would have been different. Strickland v. Washington,

(1984). There is a strong presumption that counsel’s conduct fell within the

wide range of reasonable professional assistance, and the challenged action or inaction

was the product of sound trial strategy.

. Matters of trial strategy are generally

immune from ineffective assistance of counsel claims and will not support such claims

unless counsel’s strategy was so unsound that counsel completely failed to conduct any

meaningful adversarial testing of the State’s case. People v. Patterson,

(2005).

¶ 20 Defendant insists trial counsel erred by waiting to challenge the sufficiency of the

charge until the trial started, thereby subjecting her to a higher standard of review.

6 However, if an ineffective assistance claim can be disposed of on the ground that the

defendant did not suffer prejudice, then a reviewing court need not decide whether

counsel’s performance was constitutionally deficient. People v. Griffin,

(1997); People v. Albanese,

(1984). Prejudice exists only when

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland,

. Under

the circumstances presented here, defendant fails to convince us that she suffered any

prejudice as a result of trial counsel’s failure to file a pretrial motion to dismiss on the

basis that the information lacked specificity.

¶ 21 A defendant has a fundamental right, as set forth in section 111-3 of the Code of

Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3 (West 2010)), to be informed of

the nature and cause of the criminal accusations made against him or her. People v. Nash,

(1996). It is well settled that if an indictment or information is

challenged before trial in a pretrial motion, the charging instrument must strictly comply

with the pleading requirements of section 111-3 of the Code.

; People v.

DiLorenzo,

(1996). If the indictment or information does not

strictly comply with the pleading requirements of section 111-3 of the Code, the proper

remedy is dismissal. People v. Cuadrado,

(2005). If, on the other hand,

a charging instrument is attacked mid-trial, the applicable standard for a challenge is the

prejudice standard.

7 ¶ 22 In the instant case, even assuming arguendo that the information was technically

deficient and defense counsel raised the issue in a pretrial motion, the trial court would

have undoubtedly granted the motion to dismiss. The State would then have been allowed

to amend the information to add more specificity as to the nature of the position of trust,

authority, or supervision defendant held over B.H. Under these circumstances, we fail to

see how defendant was prejudiced by her attorney’s decision to wait until mid-trial to file

the motion to dismiss.

¶ 23 Defendant relies on People v. Spann,

(2002), in support of her

argument that the timing of counsel’s motion to dismiss (mid-trial as opposed to pretrial)

shows his misapprehension of the law and constitutes ineffective assistance. However,

Spann is clearly distinguishable from the case at bar. In Spann, defense counsel was

found to be ineffective where he failed to challenge the indictment, failed to move to

quash arrest, failed to move to suppress evidence, failed to conduct cross-examination of

the State’s only witness, and conceded during closing the defendant’s guilt to a lesser

included offense with no competent challenge to the more serious charges with which the

defendant was charged.

. Thus, in Spann there was a myriad of mistakes by

defense counsel which the reviewing court could not ignore.

¶ 24 In the instant case, even though defense counsel’s strategy was unsuccessful, we

cannot say it constitutes ineffective assistance of counsel. Unlike trial counsel in Spann,

defense counsel here did an admirable job of defending his client. Defense counsel

presented not only the testimony of defendant, who denied the allegations, but also found

and produced a detective who testified B.H. falsely accused another adult of sexual 8 assault on a previous occasion after running away from Kemmerer Village. We find

defendant’s reliance on Spann misplaced.

¶ 25 Despite defendant’s contention to the contrary, we find the instant case more

analogous to People v. Davison,

(1997). Even though Davison

addressed a postconviction proceeding after a guilty plea, its rationale is applicable here.

In Davison, the defendant asserted an ineffective assistance of counsel claim on the basis

“that trial counsel erred by not challenging the sufficiency of that charge based on its

failure to include all the elements” of the crime with which he was charged.

. In

rejecting the defendant’s argument, the Davison court specifically stated:

“Considering first the prejudice prong of Strickland, we fail to see what

possible prejudice defendant might have suffered as a result of his trial counsel’s

failing to file a pretrial motion to dismiss count VI on the ground that it did not

adequately charge home invasion. Had trial counsel done so (and assuming

arguendo the count was technically deficient), the trial court undoubtedly would

have granted the motion to dismiss, and the State would then have filed an

amended count, adding any previously missing statutory language. The record

before us makes clear that defendant was willing to plead guilty to home invasion

and contains no suggestion that (1) he was misled about the factual basis for the

charge, or (2) the count’s alleged technical deficiency affected his decision to

plead guilty. Accordingly, defendant’s petition fails the Strickland prejudice prong

because it does not support a claim that but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial. [Citation.]”

. 9 Similarly, the outcome of the instant proceeding was not affected by defense counsel’s

filing the motion mid-trial as opposed to pretrial because the State would have refiled the

charges.

¶ 26 After careful consideration, we conclude that defendant has failed to show she

suffered prejudice as a result of trial counsel filing the motion to dismiss mid-trial rather

than pretrial. Thus, defendant has not met the second prong of Strickland. No further

discussion of defendant’s claim of ineffective assistance is necessary.

¶ 27 II. Fines

¶ 28 The other issue raised in this appeal is whether the trial court correctly imposed

fines, fees, and costs. Defendant specifically asserts the State Police Operations fee (705

ILCS 105/27.3a(1.5), (5) (West 2010)) should be reduced from $10 to $5 and the Violent

Crime Victims Assistance fee (725 ILCS 240/10(b) (West Supp. 2011)) should be

reduced from $100 to $80. The State responds that defendant has forfeited this issue by

failing to object at the sentencing hearing and failing to file a motion to reconsider the

sentence. Under the circumstances presented here, we agree with the State.

¶ 29 Failure to object at trial and in a posttrial motion waives the objection. People v.

Naylor,

(2008); People v. Enoch,

(1988). When

a defendant fails to preserve an issue for appeal, it is forfeited and cannot be considered

unless it amounts to plain error pursuant to Illinois Supreme Court Rule 615(a). People v.

Bowen,

. The plain error rule specifically states that

“[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall

10 be disregarded. Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a).

¶ 30 In People v. Taylor,

, our colleagues in the First District

considered a defendant’s challenge to the imposition of the $2 Public Defender Records

Automation Fund Fee (55 ILCS 5/3-4012 (West 2012)) and the $2 State’s Attorney

Records Automation Fund Fee (55 ILCS 5/4-2002.1(c) (West 2012)) on the basis that

they violated the prohibition on ex post facto laws since both assessments were enacted

after the defendant committed the crimes. The defendant did not challenge any of the

fines or fees imposed by the trial court at the time of sentencing; nevertheless the State

addressed the merits of the defendant’s argument despite the forfeiture. Taylor,

. While the Taylor court ultimately addressed the merits of the

issue, the court noted it would most likely not have done so had the State raised the issue

of forfeiture:

“Had the State argued forfeiture, we would have been hard-pressed to overlook it,

given the insubstantial nature of the fees assessed. See Ill. S. Ct. R. 615(a) (‘Any

error, defect, irregularity, or variance which does not affect substantial rights shall

be disregarded.’). And the rubric typically employed by appellate counsel—that

the judgment imposing allegedly improper fines and fees is void—is no longer

viable in light of People v. Castleberry,

(abrogating rule that

sentence not conforming to statutory requirements is void). We encourage trial

counsel to address such claimed errors in the trial court instead of risking

11 forfeiture on appeal. But because the State did not argue forfeiture in this case, we

will address the claims on their merits.”

In the instant case, the State vehemently argues forfeiture.

¶ 31 The State insists defendant forfeited the issue by failing to file a motion to

reconsider her sentence. The State further asserts that even given the small amount of

money at issue, it is unable to concede to the arguments made by defendant as to the

appropriate calculation because the record fails to show the particular fines relied upon

by the trial court to calculate the fines at issue. We agree with the State that defendant

forfeited review of this claim because she failed to challenge her fines and fees at the

sentencing hearing or in a posttrial motion. What makes this case unique is that the record

is clear that the trial court did not order defendant to pay all the fines and fees it could

have ordered her to pay.

¶ 32 During the sentencing hearing, the following colloquy concerning fines and fees

occurred:

“[Assistant State’s Attorney]: Your Honor, is the Court assessing the

required statutory fines? I should have recommended them, but I believe by statute

there are various particular fines with this offense. There is by statute the $200

sexual assault fine pursuant to 730 ILCS 5/5-9-1.7. There is the $500 sex offender

fine pursuant to 730 ILCS 5/5-9-1.15. Additionally, the VCVA fee. She has no

prior criminal history, so obviously the DNA fee would need to be assessed.

[The Court]: Well, as to the VCVA fee and the DNA fee we’ll assess those.

As for the others, we’ll assess them but find them uncollectible.” 12 By finding the fees uncollectible, the trial court actually reduced the amount defendant

otherwise would have had to pay by $700. Despite this considerable reduction, defendant

still feels compelled to argue over what amounts to $25.

¶ 33 If ever there was a time to invoke the forfeiture rule, this is it. Here, as in many

cases, “ ‘[t]he judicial and clerical time expended on accurate calculation of the precise

assessment of these monies, much of which may never be collected, is phenomenal.’ ”

People v. Rexroad,

(quoting People v. Folks,

(2010)). To remand this case would be nothing short of a complete

waste of judicial resources.

¶ 34 Finally, we point out that plain error exists only where the essential fairness of a

trial has been undermined and “only in situations which ‘reveal breakdowns in the

adversary system,’ as distinguished from ‘typical trial mistakes.’ [Citation.]” People v.

Keene,

(1995). Thus, plain error is not present here. The alleged $25

error in no way undermines the essential fairness of the trial, especially in light of the fact

that the trial court assessed an additional $700 in fees, but found them uncollectible.

¶ 35 CONCLUSION

¶ 36 For the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 37 Affirmed.

13

NO. 5-14-0493

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Marion County. ) v. ) No. 12-CF-345 ) ROBIN FRAZIER, ) Honorable ) Mark W. Stedelin, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

Opinion Filed: July 28, 2017 ______________________________________________________________________________

Justices: Honorable Richard P. Goldenhersh, J.

Honorable James R. Moore, P.J., and Honorable Thomas M. Welch, J., Concur ______________________________________________________________________________

Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy for Defender, Eun Sun Nam, Assistant Appellate Defender, Office of the Appellant State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864 ______________________________________________________________________________

Attorneys Hon. Matt Wilzbach, State’s Attorney, Marion County Courthouse, P.O. for Box 157, Salem, IL 62881; Patrick Delfino, Director, David J. Robinson, Appellee Acting Deputy Director, Jennifer M. Bernhardt, Kelly M. Stacey, Staff Attorneys, Office of the State’s Attorneys Appellate Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 ______________________________________________________________________________