No. 1-16-2005

Opinion filed January 29, 2019

Second Division ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 22298 ) DANARIUS JONES-BEARD, ) Honorable ) Arthur F. Hill, Jr., Defendant-Appellant. ) Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court, with opinion Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion.

OPINION

¶1 Danarius Jones-Beard opted for a bench trial at which he was convicted of aggravated

vehicular hijacking and armed robbery and sentenced to concurrent terms of 15 years’

imprisonment. On appeal, Jones-Beard contends that his sentence is excessive. He also contends

that his fines, fees, and costs order should be corrected. We affirm and modify the fines, fees,

and costs order.

¶2 To prevail, Jones-Beard must affirmatively show the sentencing court failed to consider

the relevant factors, but the record reflects that the trial court considered appropriate factors in

aggravation and mitigation during the sentencing hearing. Also, the record and case law does not No. 1-16-2005

support the argument that the trial court penalized Jones-Beard for choosing to exercise his right

to stand trial. So we affirm.

¶3 Background

¶4 Jones-Beard was charged by information with aggravated vehicular hijacking (720 ILCS

5/18-4(a)(3) (West 2014)) and two counts of armed robbery with a dangerous weapon other than

a firearm (id. § 18-2(a)(1)). Before trial, defense counsel requested an Illinois Supreme Court

Rule 402 conference. Ill. S. Ct. R. 402 (eff. July 1, 2012). At the conference, the trial court

offered to sentence Jones-Beard to seven years’ imprisonment in exchange for a guilty plea, but

he rejected the offer. Jones-Beard waived his right to a jury; the case proceeded to a bench trial.

¶5 On December 10, 2014, Hang Li walked to his car with his roommate, Lu Wang. Li’s

car—a 1998 green Honda Accord—was parked on 30th Street, near the State Street intersection.

When Li arrived at the driver’s side door, he noticed a person, whom he identified in court as

Jones-Beard, walking toward him from the opposite side of the street. As Jones-Beard

approached, Li saw that he was holding a gun. Li quickly entered the car hoping to flee, but

Wang was still standing outside. Li determined that he did not have time to flee so got out of the

car. Jones-Beard pointed the gun at Li’s stomach and demanded money. Li handed over $3 and

Wang $5. Jones-Beard then demanded the car; Li gave him the key and Jones-Beard drove away.

Li and Wang waited to make sure that Jones-Beard would not return before calling 9-1-1.

¶6 Later that day, Chicago police officer Thomas Murphy, while on patrol with Officer

Brian Costanzo, saw Jones-Beard driving the green Honda without wearing a seatbelt. Murphy

maneuvered behind and activated the emergency lights. Jones-Beard pulled into a parking lot.

Murphy asked Jones-Beard for his driver’s license and proof of insurance, which he could not

produce. Murphy asked Jones-Beard to get out, and as he did, Murphy saw a black handgun on

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the driver’s seat. Costanzo took Jones-Beard into custody, and Murphy secured the firearm. On

inspection, Murphy discovered the weapon was a “BB gun.” Murphy described the BB gun as

“heavy” and noted its similar size and weight to his service weapon. Costanzo searched the car

and recovered $8 in the center console.

¶7 That evening, Li and Wang went to the 15th District police station. There, Detective

Chris Blum spoke with them and asked that they view a physical lineup. After viewing the

lineup, Li identified Jones-Beard. Li also identified the car and the currency he had given to

Jones-Beard. Wang did not make any identification.

¶8 Blum interviewed Jones-Beard. Blum read him his Miranda rights, and Jones-Beard

agreed to speak. Jones-Beard told Blum that he woke up that morning “cold and hungry” and

“set out to rob someone.” Holding a BB gun in his right hand, he approached two Chinese males

and demanded their money and car key. The two men agreed, and gave Jones-Beard $8 and the

key.

¶9 That evening, Assistant State’s Attorney Brian Whang spoke to Jones-Beard. After their

conversation, Jones-Beard agreed to memorialize his oral statement in writing. According to

Jones-Beard’s statement, he saw Li and Wang standing next to a green Honda sedan at the corner

of 30th Street and State Street, at which time he resolved to steal the car. In the front right part of

his jacket, Jones-Beard had a heavy black metal BB gun. Jones-Beard liked that it “looks like a

real gun.” He held the gun in his hand, partially covering it with the sleeve of his jacket. He

approached Li and Wang and pointed the gun at Li. He demanded that they place their money on

top of the car. He then demanded the car key. When they complied, he told them to walk away.

He then drove off. Jones-Beard did not buckle his seatbelt and eventually the police pulled him

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over. He was sitting on the BB gun and when he got out of the car, the officers saw the gun. The

money he took from Li and Wang was in the car’s center console.

¶ 10 At the close of the State’s case, the court asked to handle the BB gun. After it had done

so, the State rested.

¶ 11 The court found Jones-Beard guilty of all counts. In announcing its decision, the court

noted that the BB gun “looks just like a gun.” The court also noted that it was “heavy” and

“could really, really hurt somebody as a bludgeon.”

¶ 12 At sentencing, the court heard arguments in aggravation and mitigation. In aggravation,

the State emphasized Jones-Beard’s criminal history. As a juvenile, Jones-Beard was convicted

of criminal damage to property and sentenced to probation. While on probation, he was

convicted of burglary and incarcerated. His incarceration was later vacated, and he was

sentenced to probation. Jones-Beard violated his probation three additional times. As an adult,

Jones-Beard was convicted of attempted criminal sexual assault and sentenced to four years’

imprisonment. At the time Jones-Beard committed the offenses in this case, he was on parole,

having been released from prison just two months before. The State also highlighted that the

presentence investigation (PSI) report reflected that Jones-Beard admitted to being a current

gang member. The State acknowledged that Jones-Beard “didn’t have the best childhood,” but

argued that he had been “given opportunity after opportunity” to rehabilitate, of which he did not

avail himself. The State asked the court to sentence Jones-Beard to 15 years’ imprisonment.

¶ 13 In mitigation, defense counsel argued that Jones-Beard should receive the minimum

allowable sentence. Jones-Beard hurt no one, and at the time of the offenses was 21 years old.

Jones-Beard had a troubled childhood, with no contact with his father and a drug-addicted

mother. His grandfather raised him until, at age 16, the Department of Children and Family

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Services removed him for unknown reasons. Ultimately, counsel argued that Jones-Beard had

“been a product of the system” and a sentence greater than the minimum would not be

rehabilitative.

¶ 14 In allocution, Jones-Beard apologized. He stated that he was “taking full responsibility”

for his actions and not using his troubled past as an excuse.

¶ 15 In announcing its sentencing decision, the trial court noted that it considered every aspect

of Jones-Beard’s PSI, including his age and difficult childhood. Acknowledging Jones-Beard’s

time spent in DCFS care, the court noted the unexplained basis for his removal from his

grandfather’s care. The court said it also considered Jones-Beard’s “extensive criminal history,”

including his adjudications as a juvenile and convictions as an adult. The court merged count III

(armed robbery) into count II (armed robbery), and imposed concurrent terms of 15 years’

imprisonment.

¶ 16 Jones-Beard filed a motion to reconsider his sentence, arguing its excessiveness, given

the nature of the crime, and that his criminal history consisted largely of his juvenile

adjudications. The court denied Jones-Beard’s motion.

¶ 17 Analysis

¶ 18 Jones-Beard first contends that his concurrent 15-year sentences are excessive, given the

nonviolent nature of his offenses and the presence of several mitigating factors, including his

troubled childhood and his age. He also contends that the trial court assessed a “trial tax” by

sentencing him to concurrent terms of 15 years’ imprisonment after having initially offered him a

seven-year sentence in exchange for a guilty plea. He asks that we either reduce his sentence or

remand for resentencing.

¶ 19 Concurrent 15-Year Sentences

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¶ 20 The Illinois Constitution requires that a trial court impose a sentence that reflects both the

seriousness of the offense and the objective of restoring the defendant to useful citizenship. Ill.

Const. 1970, art. I, § 11; People v. McWilliams,

, ¶ 27. In reaching this

balance, a trial court must consider a number of aggravating and mitigating factors, including the

defendant’s credibility, demeanor, general moral character, mentality, social environment, habits,

and age. People v. Alexander,

(2010).

¶ 21 In reviewing a defendant’s sentence, this court will not reweigh the factors and substitute

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

differently. People v. Busse,

. The trial court has wide latitude to

weigh the appropriate factors, which entitles it to deference. Alexander,

. An

abuse of discretion exists where the sentence imposed is at great variance with the spirit and

purpose of the law, or is manifestly disproportionate to the nature of the offense.

Absent some

indication to the contrary, other than the sentence itself, we presume the trial court properly

considered all relevant mitigating factors presented. People v. Sauseda,

.

¶ 22 Initially, we point out that Jones-Beard’s concurrent 15-year sentences fall within the

permissible statutory range of his offenses. See 730 ILCS 5/5-4.5-25(a) (West 2014) (for class X

felonies, “[t]he sentence of imprisonment shall be a determinate sentence of not less than 6 years

and not more than 30 years”); see also 720 ILCS 5/18-4(b) (West 2014) (“A violation of

subsection (a)(3) is a Class X felony for which a term of imprisonment of not less than 7 years

shall be imposed.”); People v. Wilson,

; People v. Knox,

. To prevail, Jones-Beard “must make an affirmative showing that the

sentencing court did not consider the relevant factors.” People v. Burton, 2015 IL App (1st)

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131600, ¶ 38. The seriousness of the crime is the most critical factor in determining an

appropriate sentence, not the presence of mitigating factors. People v. Quintana,

(2002).

¶ 23 Jones-Beard cannot make this showing because the record reflects the court considered

all evidence in mitigation. At the sentencing hearing, the court heard from defense counsel on

Jones-Beard’s age, difficult childhood, and counsel’s belief that a prison term above the

minimum would not aid in rehabilitating him. During the oral pronouncement, the court

specifically mentioned it considered age, his mother’s drug addiction, his father’s absence, and

the PSI, which includes all the mitigating factors Jones-Beard cites. The record shows the court

was not persuaded by these mitigating factors in light of Jones-Beard’s “extensive criminal

history.” See People v. Evangelista,

(2009) (“defendant’s criminal

history alone would appear to warrant sentences substantially above the minimum”). In addition,

a sentencing court need not state every factor it considered in determining a defendant’s

sentence. People v. Gornick,

(1982).

¶ 24 “Trial Tax”

¶ 25 Next, Jones-Beard argues that his 15-year sentence reflects a “trial tax” imposed by the

court as punishment for refusing the court’s pretrial offer.

¶ 26 A trial court may not penalize a defendant for choosing to exercise his right to stand trial.

People v. Ward,

(1986). But, “the mere fact that the defendant was given a

greater sentence than that offered during the plea bargaining does not, in and of itself, support an

inference that the greater sentence was imposed as a punishment for demanding trial.” See

People v. Carroll,

(1992) (collecting cases). Indeed, it must be

“clearly evident” in the record that the harsher sentence resulted from the trial demand. Ward,

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; People v. Young,

(1974) (claim that defendant was

penalized for demanding trial must be “clearly established by the evidence”). This evidence can

come when a trial court makes explicit remarks concerning the harsher sentence (Ward,

(citing People v. Moriarty,

(1962)); Young, 20 Ill. App. 3d at 893­

94), or where the actual sentence is outrageously higher than the one offered during plea

negotiations (People v. Dennis,

(1975)). In making this determination, we

consider the entire record rather than focus on a few words or statements of the trial court. Ward,

.

¶ 27 Jones-Beard has presented no evidence, other than the sentence itself, showing his

sentence as the product of a trial tax. Rather, Jones-Beard must demonstrate that the trial court

imposed a sentence so outrageously higher than the one offered pretrial that the only conclusion

can be that the trial court punished him for exercising his right to trial. See Dennis,

(“We can only conclude that the sentence [20 times greater than the pretrial offer] was

imposed as punishment for [defendant’s] decision to reject the State’s offer and chose instead a

jury trial.”). Jones-Beard’s sentence, which amounts to just over a twofold increase from the

pretrial offer, is not so outrageously disproportionate that we are left only to conclude that it was

the product of a trial tax. See Carroll,

(“[T]he sentence imposed was only

2½ times that which was offered to him at the pretrial conference; clearly, this does not approach

the excessive nature of the sentence deemed an improper punishment in Dennis.”).

¶ 28 Given this record, we conclude the trial court’s offer, which was for the minimum term

allowable, is best viewed as an acceptable “concession” afforded to Jones-Beard in exchange for

his guilty plea. See People v. Moss,

(2001) (“A court may grant dispositional

concessions to defendants who enter a guilty plea when the public’s interest in the effective

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administration of justice would thereby be served.”); Ward,

(“Although it may

be proper in imposing sentence to grant concessions to a defendant who enters a plea of guilty, a

court may not penalize a defendant for asserting his right to a trial either by the court or by a

jury.”). Viewing the record as a whole, we can find no evidence that would “clearly show” the

trial court’s intention to punish Jones-Beard for exercising his right to trial. Consequently, we

conclude that the trial court did not abuse its discretion and affirm Jones-Beard’s concurrent 15­

year terms.

¶ 29 Fines, Fees, and Costs

¶ 30 Jones-Beard next contends the assessed fines, fees, and costs should be reduced from

$744 to $349. He argues that (i) the electronic citation ($5) fee and DNA ($250) fee should be

vacated because they were improperly imposed and (ii) under section 110-14 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/110-14(a) (West 2014)), he is entitled to presentence

custody credit against several fines and assorted other assessments that are labeled “fees” but are

actually “fines.”

¶ 31 Initially, we note that Jones-Beard did not raise these challenges at trial, and they are,

therefore, arguably forfeited. People v. Hillier,

(2010). He nevertheless

argues that we should review his claim using any of the following means: (i) our authority under

Illinois Supreme Court Rule 615(b), (ii) the second prong of the plain-error doctrine, or (iii) a

holding that his trial counsel was ineffective for failing to object to the imposition of the

improper fees. The State acknowledges that, even though Jones-Beard forfeited his claims by

failing to raise them in the trial court, recent decisions suggest that we may review them.

¶ 32 We disagree with the parties that Jones-Beard’s challenge is reviewable under plain error

or that we may review these unpreserved errors under Rule 615(b). See People v. Smith, 2018 IL

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App (1st) 151402, ¶ 5. We need not determine whether Jones-Beard’s counsel was ineffective for

failing to object to the erroneous assessments because the rules of forfeiture and waiver also

apply to the State, and where the State fails to argue that Jones-Beard has forfeited the issue, it

waives the forfeiture. People v. Bridgeforth,

. We review de novo

the propriety of a court-ordered fine or fee. People v. Bryant,

.

¶ 33 First, the parties agree, and we concur, that the $5 electronic citation fee (705 ILCS

105/27.3e (West 2014)), and the $250 state DNA identification system fee (730 ILCS 5/5-4-3(j)

(West 2014)) must be vacated. The electronic citation fee does not apply to felonies and is,

therefore, inapplicable to Jones-Beard’s felony convictions for aggravated vehicular hijacking

and armed robbery. The DNA fee was also improperly assessed because Jones-Beard’s DNA is

already in the Illinois database as a result of his prior felony conviction. See People v. Marshall,

(2011) (finding fee authorized only when defendant not registered in DNA

database). Accordingly, we vacate the erroneous charges.

¶ 34 Jones-Beard next asserts that seven of the assessments imposed against him are fines

subject to offset by his presentence incarceration credit. See People v. Jones,

(2006) (“[T]he credit for presentence incarceration can only reduce fines, not fees.”). A

defendant incarcerated on a bailable offense who does not supply bail, and against whom a fine

is levied, receives a credit of $5 for each day spent in presentence custody. 725 ILCS 5/110-14(a)

(West 2016). “Broadly speaking, a ‘fine’ is a part of the punishment for a conviction, whereas a

‘fee’ or ‘cost’ seeks to recoup expenses incurred by the state ***.” Jones,

. The

most important factor, therefore, is whether the charge seeks to compensate the State for any

costs incurred as a result of prosecuting the defendant. People v. Graves,

, 250

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(2009). Jones-Beard spent 561 days in presentence custody, entitling him to up to $2805 in

credit.

¶ 35 The parties agree that two of the fees assessed against Jones-Beard, the $50 court system

fee (55 ILCS 5/5-1101(c) (West 2016)) and the $15 state police operations fee (705 ILCS

105/27.3a(1.5) (West 2016)), are actually fines and should be offset by Jones-Beard’s

presentence credit. We concur. See People v. Blanchard,

(“[W]e

hold that the $50 court system fee imposed in this case pursuant to section 5-1101(c) is a fine for

which defendant can receive credit for the *** days he spent in presentence custody.”).

¶ 36 The parties dispute whether the five remaining charges are fines rather than fees because

they do not reimburse the State for the costs incurred in prosecuting Jones-Beard. Specifically,

Jones-Beard identifies the following charges as fines subject to offset by his presentence

incarceration credit: the $190 felony complaint fee (705 ILCS 105/27.2a(w)(1)(A) (West 2016)),

the $15 clerk automation fee (id. § 27.3a(1)), the $25 document storage fee (id. § 27.3c(a)), the

$2 state’s attorney records automation fee (55 ILCS 5/4-2002.1(c) (West 2016)), and the $2

public defender records automation fee (id. § 3-4012).

¶ 37 In considering challenges to three of these assessments, we have held they are fees

because they are “ ‘compensatory’ ” and represent a “ ‘collateral consequence’ ” of a defendant’s

conviction. People v. Brown,

(quoting People v. Tolliver,

(2006)); Smith,

. Our supreme court recently

affirmed that conclusion, finding those assessments are fees rather than fines. People v. Clark,

. Accordingly, we hold that these charges are fees not subject to offset by

Jones-Beard’s presentence incarceration credit.

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¶ 38 Jones-Beard’s remaining contention asks for credit against the $2 state’s attorney records

automation fee and the $2 public defender records automation fee. This court has found that

these assessments are fines because they do not compensate the State for the costs associated

with prosecuting a particular defendant. People v. Camacho,

.

But, in Clark, our supreme court overruled Camacho, holding that both assessments are fees.

Clark,

. The court noted that the public defender’s office is a “vital and

necessary part of the criminal justice system” because the “State could not effectively prosecute

criminal defendants without the existence of an indigent defense system.

¶ 21 (citing Gideon

v. Wainwright,

(1963)). Maintaining that office “is a cost common to all

prosecutions, regardless of whether or not a particular defendant has or finds the resources to hire

private counsel.”

Because the public defender’s office is “necessary to every prosecution and

automating records is a cost necessary to that office, automating records is a cost ‘incurred as the

result of prosecuting the defendant.’ ”

¶ 22 (quoting Graves,

). Thus, the $2

public defender records automation fee constitutes a compensatory fee, and not a fine.

¶ 39 The court applied similar reasoning in finding the $2 state’s attorney records automation

assessment is a fee, noting that “[e]very prosecution necessarily involves the state’s attorney and

necessarily generates records, which must be automated.” Id. ¶ 27. “[A]utomating the state’s

attorney’s record keeping system is a cost related to prosecuting defendants, and this charge is a

compensatory fee” not subject to presentence credit. Id. Thus, based on Clark, Jones-Beard is not

entitled to presentence custody credit for the $2 state’s attorney or public defender records

automation fees.

¶ 40 To summarize, we vacate the erroneously assessed $5 electronic citation fee and the $250

state DNA identification system fee; we also offset $65 in fines that are subject to Jones-Beard’s

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presentence credit. But we find the remaining charges are fees not subject to presentence

incarceration credit. The fines, fees, and costs order should reflect a new total due of $424.

Pursuant to Illinois Supreme Court Rule 615(b)(1), we direct the clerk of the circuit court to

modify the fines, fees, and costs order accordingly. The judgment of the circuit court is affirmed

in all other respects.

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

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