{ "id": 2483871, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD NUNEZ, Defendant-Appellant", "name_abbreviation": "People v. Nunez", "decision_date": "1990-04-24", "docket_number": "No. 4\u201489\u20140268", "first_page": "332", "last_page": "338", "citations": [ { "type": "official", "cite": "197 Ill. App. 3d 332" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "455 N.E.2d 1092", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1095" } ], "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 1056", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5660325 ], "weight": 2, "pin_cites": [ { "page": "1062" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/1056-01" ] }, { "cite": "195 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2494843 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "790" }, { "page": "794" }, { "page": "796" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0785-01" ] } ], "analysis": { "cardinality": 628, "char_count": 13194, "ocr_confidence": 0.756, "pagerank": { "raw": 1.3176229186393688e-07, "percentile": 0.6258519319079993 }, "sha256": "0fe505fcc8edcd8af24ba2fe54349e2bd856ae6a0b92b5d257808657877d4dfe", "simhash": "1:eebc285028d6fd7a", "word_count": 2202 }, "last_updated": "2023-07-14T17:08:36.740176+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD NUNEZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nDefendant, Richard Nunez, was convicted of bringing contraband into a State penal institution (Ill. Rev. Stat. 1987, ch. 38, par. 31A\u2014 1.1) and sentenced to one year of probation, with 120 days to be served in the Livingston County jail. A recoupment order of $875 was entered under section 113 \u2014 3.1 of the Code of Criminal Procedure of 1963 (Code), to be deducted from his $1,500 bond deposit. (Ill. Rev. Stat. 1987, ch. 38, par. 113 \u2014 3.1.) On appeal, defendant argues the recoupment order was improper because (1) the amount of recoupment was not reasonable, (2) defendant did not have the ability to pay, and (3) the judge did not consider an affidavit of assets and liabilities as required by statute.\nThe State argues that because defendant raises these issues for the first time on appeal, he has waived them. We agree. Additionally, we disagree with defendant on the merits, except as to an error in calculation of the amount of the recoupment order.\nThe record shows that defendant posted a $1,500 bond on December 12, 1988. At a hearing on December 19, 1988, the court informed defendant of the charges and questioned him as to his age, residence, and financial situation. During this questioning, defendant stated he was not married, had no dependents, owned no car, real estate, or any other property worth more than $500. Defendant said he lived with his mother and was unemployed. He also testified that the money used to pay the bond came from family and friends. At this hearing, the court, due to a potential conflict of interest, replaced the public defender, who had been defendant\u2019s counsel, with an appointed private attorney, Gary Neville.\nAt defendant\u2019s sentencing on March 27, 1989, defendant testified he completed an affidavit when he requested court-appointed counsel. He further testified that, with the exception of a $300 anticipated tax refund, he had no greater assets at the time of the sentencing than when he completed the affidavit. The record does not include this affidavit. The presentence report stated defendant was 25 years of age, had posted a $1,500 bond, had obtained his general equivalency diploma while in prison, was unemployed, had no debts or assets, and was in good physical health.\nAt sentencing, the court again asked defendant who posted his bond. He replied, \u201cparents.\u201d The prosecution then stated it was filing a motion requesting that defendant be required to reimburse the county for the services of Neville. There was no objection by defendant, and the court stated it would defer ruling on this issue until \u201csome later point.\u201d A short time later, during this same hearing, the prosecution again brought up the issue of attorney fees. The following colloquy took place:\n\u201c[PROSECUTOR]: What is the court\u2019s order on attorney fees?\nTHE COURT: The court is going to go ahead because I don\u2019t know what is going to happen. I am going to \u2014 if, in fact, notices of appeal are filed. Are you asking they be filed in behalf of each of the defendants?\nMR. NEVILLE: Yes.\nTHE COURT: Then I will go ahead and direct that. I will direct that the clerk file a notice of appeal in behalf of each of the defendants. I will appoint the Appellate Defender to represent them.\nAnd I would ask Mr. Neville to file an itemized statement of his time and services to the defendants in this case. Once that is done, we will then hold a hearing on the state\u2019s motion.\n[PROSECUTOR]: Okay.\nTHE COURT: As to whether Mr. Nunez should be responsible for any attorney fees or not.\u201d\nAt no time did defendant object or make any statement addressed to any assessment that might be made against him for the services of his court-appointed counsel.\nThe record contains an itemized list of services provided by Neville which indicates that he worked a total of 11 hours for defendant, both in and out of court. Defendant was duly notified of the hearing regarding the motion for attorney fees, but he failed to appear. Neville and the State\u2019s Attorney were present. The court found Neville devoted 11 hours to defendant\u2019s case and calculated attorney fees at $75 per hour. Defendant\u2019s ability to pay was based on the $1,500 bond deposited on his behalf. The court ordered defendant to pay $875 for attorney fees and ordered that sum to be paid from defendant\u2019s bond.\nSection 113 \u2014 3.1 of the Code provides for reimbursement by defendants for legal representation in cases in which the court appoints counsel to represent a defendant under section 113 \u2014 3 of the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 113 \u2014 3.1.) This sum must be reasonable, and, in a hearing to determine the amount, the court is directed to \u201cconsider the affidavit prepared by the defendant *** and any other information pertaining to the defendant\u2019s financial circumstances which may be submitted by the parties.\u201d Ill. Rev. Stat. 1987, ch. 38, par. 113 \u2014 3.1(a).\nAs stated earlier, defendant is objecting to this recoupment order for the first time on appeal. Accordingly, this issue is waived unless the plain error rule applies. (See 107 Ill. 2d R. 615(a).) For the reasons discussed in a recent decision of this court, People v. Baker (1990), 195 Ill. App. 3d 785, we decline to apply the plain error rule to this case. As stated in Baker, \u201c[Defendant] sat on his rights at the trial level; he should not be permitted to challenge the court\u2019s recoupment order at this stage.\u201d Baker (1990), 195 Ill. App. 3d at 790.\nOn the merits, the defendant\u2019s arguments are groundless. Defendant claims that section 113 \u2014 3.1 of the Code requires the court to consider the affidavit he prepared when he sought the services of court-appointed counsel. Although defendant testified at the sentencing hearing that he prepared such an affidavit, it is not part of the record on appeal. Based upon this absence, defendant argues that this court should remand the case so that the trial court could have the affidavit before it when it considers whether to enter a recoupment order.\nAffidavits prepared to support a request for court-appointed counsel possess no magical properties. In directing the court to consider such an affidavit when entering a recoupment order, the legislature was not concerned that the court have before it some unique document, but instead was concerned that the court possess the information normally contained in that document, such as a particular defendant\u2019s assets and liabilities, his age, residence, work record, dependents, et cetera. Where, as here, this information comes before the court through other means, such as defendant\u2019s testimony and the presentence report, the intent of the legislature has been fulfilled. To hold otherwise would be to elevate form over substance.\nDefendant also argues that he does not have the ability to pay the recoupment order. As we observed in Baker, this is a most peculiar argument because defendant has, in fact, already paid it. (Baker (1990), 195 Ill. App. 3d at 794.) Defendant had previously posted a bond of $1,500, and the court ordered $875, the amount of the recoupment order, deducted from the bond posted before it was returned to defendant. As we held in Baker, \u201ca cash bond posted to secure the release of a defendant is definitive evidence of his \u2018ability to pay\u2019 a recoupment order as long as the recoupment order does not exceed the amount of the cash bond. *** No further evidence concerning the defendant\u2019s \u2018ability to pay\u2019 under these circumstances is required.\u201d Baker (1990), 195 Ill. App. 3d at 796.\nDefendant\u2019s last argument is that the amount of the recoupment order, $875, is not reasonable. The recoupment order arose from a bench trial in which defendant was convicted of bringing contraband into the Pontiac Correctional Center. The trial judge who entered the recoupment order was the same trial judge who presided at defendant\u2019s trial. The trial judge was fully aware of defendant\u2019s financial circumstances and possessed, as well, an affidavit of defendant\u2019s court-appointed counsel, showing he expended 11 hours on defendant\u2019s case. Even though the State\u2019s Attorney recommended a recoupment order at the rate of $20 per hour, the trial court decided to base its order on the figure of $75 per hour.\nAt first blush, it is difficult to see how this judgment amounts to an abuse of discretion. Defendant was convicted of bringing contraband, i.e., cannabis, into a State penal institution, a Class 4 felony. (See Ill. Rev. Stat. 1987, ch. 38, pars. 31A \u2014 l.l(c)(2)(ii), (d).) The statute in question, section 113 \u2014 3.1(b) of the Code, provides that a recoupment order in a felony case may be as much as $5,000. (Ill. Rev. Stat. 1987, ch. 38, par. 113 \u2014 3.1(b).) Furthermore, there is nothing inherently unreasonable about deciding that an attorney\u2019s time spent defending a felony charge in a bench trial is worth $75 per hour. In his brief before this court, defendant concedes as much: \u201cAlthough $75 per hour may accurately reflect the cost of the legal services to the county, \u2018reason may require that only partial recoupment be ordered.\u2019 \u201d We conclude no such \u201creason\u201d appears in this case.\nThe crux of defendant\u2019s argument concerning the $875 recoupment order is that it may exceed, in this case, the claimed costs of the county in providing court-appointed counsel. Aside from the absence in the record of either any indication as to what defendant\u2019s court-appointed counsel was paid by the county for his services or evidence of the costs incurred by the county in providing such services, there is a quicker answer to defendant\u2019s argument: it is not his business. Had the legislature intended recoupment orders entered under section 113 \u2014 3.1 of the Code to be inextricably linked to sums paid to court-appointed counsel under section 113 \u2014 3 of the Code, it could have said so.\nSection 113 \u2014 3.1 of the Code is a complete legislative scheme unto itself. We decline to judicially amend that section to require, as defendant argues, that the recoupment order must be limited to reimbursing the county for its actual, documented expenditures. Our judgment in this regard is strengthened by the legislative history of section 113\u2014 3.1(a) of the Code. As originally enacted, it read as follows:\n\u201cPayment for Court-Appointed Counsel, (a) Whenever *** the court appoints counsel to represent a defendant, the court may order the defendant to pay *** a reasonable sum to reimburse *** the county *** for some or all of the costs of court-appointed, counsel.\u201d (Emphasis added.) Ill. Rev. Stat. 1983, ch. 38, par. 113 \u2014 3.1(a).\nLess than V-k years after section 113 \u2014 3.1 of the Code was enacted, this court construed it in People v. Bramlett (1983), 118 Ill. App. 3d 1056, 455 N.E.2d 1092, as follows:\n\u201cA fair reading of [section 113 \u2014 3.1(a)] reflects that reimbursement may not exceed the county\u2019s actual cost in providing counsel for a defendant. The trial court is vested with discretion to compute a reasonable sum, equal to some or all of the county\u2019s cost in providing counsel, according to the circumstances of the individual case and defendant.\n*** [Reimbursement under section 113 \u2014 3.1 must be computed with reference to the county\u2019s cost of providing the services of the public defender, rather than the value of the legal services as such.\u201d Bramlett, 118 Ill. App. 3d at 1062, 455 N.E.2d at 1095.\nIt should be noted that this court\u2019s holding in Bramlett is essentially what defendant is arguing in the present case. That the Bramlett decision was contrary to what the legislature intended was made clear in the very next plenary session of the Illinois General Assembly, when section 113 \u2014 3.1(a) was amended by Public Act 84 \u2014 693, as follows:\n\u201cPayment for Court-Appointed Counsel, (a) Whenever *** the court appoints counsel to represent a defendant, the court may order the defendant to pay *** a reasonable sum to reimburse *** the county *** for such representation.\u201d (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 113 \u2014 3.1(a).\nUnder section 113 \u2014 3.1 of the Code as amended, the amount of the recoupment order is left to the sound discretion of the court, and we find no abuse of that discretion in this case.\nThe State concedes, however, that the final calculations of the trial court were incorrect. The record indicates that the attorney fee was based on a rate of $75 per hour. Since the finding was that the attorney worked 11 hours for defendant, the recoupment order should have been $825, not $875. We therefore modify the recoupment order to the amount of $825; we find it was otherwise reasonable in amount and properly entered.\nAccordingly, we affirm the decision of the trial court as modified.\nAffirmed as modified.\nKNECHT, P.J., and McCULLOUGH, J., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Donald D. Bernard!, State\u2019s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD NUNEZ, Defendant-Appellant.\nFourth District\nNo. 4\u201489\u20140268\nOpinion filed April 24, 1990.\nDaniel D. Yuhas and Jonathan Haile, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nDonald D. Bernard!, State\u2019s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0332-01", "first_page_order": 354, "last_page_order": 360 }