{
  "id": 3435780,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SEYMOUR ASHINSKY, Defendant-Appellant",
  "name_abbreviation": "People v. Ashinsky",
  "decision_date": "1985-04-03",
  "docket_number": "No. 3\u201484\u20140619",
  "first_page": "985",
  "last_page": "989",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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  "last_updated": "2023-07-14T21:36:35.805575+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SEYMOUR ASHINSKY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE HEIPLE\ndelivered the opinion of the court:\nDefendant, Seymour Ashinsky, was arrested and charged with being a fugitive from justice from the State of Oklahoma. The arrest was made prior to the issuance of a Governor\u2019s warrant. (Ill. Rev. Stat. 1981, ch. 60, par. 30.) The court informed defendant of the charges against him and, following the filing of an affidavit of assets and liabilities, appointed the Will County public defender to represent him. Defendant refused to waive extradition. During his confinement defendant received a check for $1,000 from family members in New York. The money was placed in his commissary account at the jail. Upon learning of defendant\u2019s newly acquired riches, the State\u2019s Attorney filed a motion to recoup the costs of providing defendant the services of the public defender. (Ill. Rev. Stat. 1981, ch. 38, par. 113\u2014 3.1.) A hearing was held to determine the merits of the motion. Defendant testified that he had been unemployed for some time and had been subsisting on whatever charitable organizations would offer. His assets were a 1976 Chevrolet Caprice which was subject to a lien and household goods stored with a Joliet warehouseman. The goods were soon to be sold for failure to pay storage charges. The $1,000 was obtained to cover expenses for defendant\u2019s \u201cson,\u201d Sean Harper, an 18-year-old whom defendant apparently took care of, although there was neither a blood nor adoptive relationship between them. Defendant had promised Mary Ellen Vories, the mother of Sean\u2019s girlfriend, that he would reimburse her for Sean\u2019s living expenses while he boarded there. Sean was also arrested, with defendant promising to reimburse Ms. Vories the $200 needed to post Sean\u2019s bond. The public defender noted during the hearing that he had expended \u201cprobably 20 hours or so\u201d, in representing defendant. The court, apparently rejecting the validity of the obligations incurred by defendant, ordered that $960 be recouped from defendant. The basis of this charge was the customary rate of $48 per hour for appointed counsel in Will County. The court ordered the remaining $750 in defendant\u2019s commissary account paid over to the county.\nDefendant argues that the court erred in assessing a public defender\u2019s fee against him because the court was without authority to assess such a fee in an extradition case. The focal point of the controversy is under which statute the court appointed the public defender. The recoupment statute (Ill. Rev. Stat. 1981, ch. 38, par. 113 \u2014 3.1) empowers the court to order reimbursement when counsel is appointed pursuant to section 113 \u2014 3 of the Code of Criminal Procedure of 1963 or Supreme Court Rule 607 (which is not germane to the question here). Defendant contends that counsel was not appointed under section 113 \u2014 3. That section provides:\n\u201c(a) Every person charged with an offense shall be allowed counsel before pleading to the charge. If the defendant desires counsel and has been unable to obtain same before arraignment the court shall recess court or continue the cause for a reasonable time to permit defendant to obtain counsel and consult with him before pleading to the charge.\n(b) In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel.\u201d (Ill. Rev. Stat. 1981, ch. 38, par. 113-3.)\nDefendant argues that he was not charged with an offense within the meaning of the Code of Criminal Procedure of 1963. An offense is defined as \u201ca violation of any penal statute of this State.\u201d (Ill. Rev. Stat. 1981, ch. 38, par. 102 \u2014 15.) Instead, defendant claims he was arrested for violating an Oklahoma penal statute. The appointment of counsel was thus made pursuant to section 4 of \u201cAn Act in relation to the office of Public Defender\u201d (Ill. Rev. Stat. 1981, ch. 34, par. 5604), which states:\n\u201cThe Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel.\u201d (Emphasis added.)\nWe agree with defendant. The \u201ccases\u201d mentioned in subsection (b) of section 113 \u2014 3 whereby counsel is to be appointed to indigent defendants refers only to those who are charged with an offense as described in subsection (a). Defendant was not charged with an offense, but was being held pending the issuance of a Governor\u2019s warrant pursuant to the provisions of the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1981, ch. 60, par. 18 et seq.). Thus, one can only conclude that counsel was appointed because defendant was being held in custody, and not because he was charged with an offense. Accordingly, the provisions of section 113 \u2014 3.1 are inapplicable.\nThe State raises numerous challenges to this argument. It is argued that defendant waived this contention by not raising it at trial. Even without regard to defendant\u2019s pro se status at the recoupment \u2018hearing, this argument is unavailing. Since counsel was appointed pursuant to section 4 of \u201cAn Act in relation to the office of Public Defender\u201d (Ill. Rev. Stat. 1981, ch. 34, par. 5604), the court was without authority to order reimbursement. The public defender appointed thereunder is to serve as attorney without fee when so appointed.\nThe State argues that by submitting the affidavit of assets and liabilities mandated by section 113 \u2014 3(b), counsel was effectively appointed pursuant to section 113 \u2014 3. Turning once again to section 4, the court must find that defendant is unable to employ counsel. The use of the form customarily prepared by those charged with an offense indicates nothing more than a convenient method of making the required determination. It is not indicative of which statute the court below considered in making the appointment.\nThe State argues that since there is no record of the May 8 appointment of counsel, it must be presumed that the court acted properly in appointing counsel. This argument misses the point. The statute the State claims the court acted under could not have authorized the appointment of counsel, as defendant was not charged with an offense. Thus, it must be presumed that the court properly appointed counsel pursuant to section 4.\nThe State argues that the point is waived by a failure to move to retax costs in the trial court. The fee assessed here is not a cost of the proceeding. The reimbursement of public defender\u2019s costs is a sui generis statutory remedy unrelated to the normal costs of a proceeding. A motion to retax costs was not necessary.\nFinally, the State argues that County of Champaign v. Hanks (1976), 41 Ill. App. 3d 679, 353 N.E.2d 405, authorizes the recovery of costs from defendant. Hanks is distinguishable. There, defendant fraudulently conveyed real property for the purpose of appearing indigent. The court upheld an action for fees based on a theory of implied contract. Here, the State points to the omission of defendant\u2019s household goods as an asset on his affidavit, as well as his failure to inform the court of his receipt of the $1,000. However, there is evidence in the record that the court would have found defendant indigent even if these assets had been disclosed. This is corroborated by defendant\u2019s testimony as to debts and encumbrances. Therefore, any right to relief based upon Hanks is speculative at best.\nAccordingly, we reverse the judgment of the circuit court of Will County and order the $750 returned to defendant.\nReversed.\nBARRY and STOUDER, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE HEIPLE"
      }
    ],
    "attorneys": [
      "Robert Agostinelli and Gary Hicks, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "Edward E Petka, State\u2019s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SEYMOUR ASHINSKY, Defendant-Appellant.\nThird District\nNo. 3\u201484\u20140619\nOpinion filed April 3, 1985.\nRobert Agostinelli and Gary Hicks, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nEdward E Petka, State\u2019s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
  },
  "file_name": "0985-01",
  "first_page_order": 1007,
  "last_page_order": 1011
}