February 25, 2019
Over the past year, the Supreme Court has repeatedly been asked to address the issue of how to handle the correction of sentencing errors in criminal cases where more than thirty days have elapsed since imposition of sentence and the circuit court no longer has jurisdiction. See People ex rel. Berlin v.Bakalis, 2018 IL 122435 (where defendant received one year of mandatory supervised release (MSR), but the law required imposition of a four-year MSR term); People v. Vara, 2018 IL 121823 (where circuit clerk assessed certain fines that were not included in the circuit court’s judgment and the judgment failed to include certain other fines that were mandatory); People v. Harvey, 2018 IL 122325 (where clerk of court erroneously assessed a DNA fee, an unauthorized Crime Stoppers “fine” was imposed by the court, and the amount of the sheriff’s fee was contested, but defendant failed to properly preserve his challenge to those assessments in the circuit court); People v. Young, 2018 IL 122598 (where circuit court recorded fines that had not been imposed by the court as part of defendant’s sentence and allegedly erred in calculating presentence custody credit to which defendant was entitled, but challenge was not raised until the appeal of the denial of a post-conviction petition).
The foregoing cases are merely the tip of the iceberg. Petitions raising sentencing errors – most often involving the way fines and fees are imposed – have become commonplace on our PLA docket. The appellate courts similarly report that the number of cases raising such issues for the first time on appeal has mushroomed. For example, in People v. Griffin, 2017 IL App (1st) 143800, which is currently pending before our court after leave to appeal was allowed, the First District noted that the matter before it there was “but one of hundreds of criminal appeals involving fines-and-fees issues that were overlooked at the trial court level and raised for the first time on appeal.” In 2016 alone, the court reported, it heard 137 cases challenging the imposition of fines and/or fees, along with another 83 cases asserting an error in the application of per diem credit against fines. Id. Other districts of the appellate court have likewise seen a significant rise in appeals of fee and fine assessments and sought clarification regarding what the trial court may still address once 30 days have passed since sentence was imposed.
There seems to be general agreement that permitting erroneous fines and fees to be corrected at the circuit court level would best serve the interests of judicial economy. In addition, case law has long recognized that trial courts retain authority to correct a range of errors at any time, even after judgment is entered. Sometimes, however, errors are not discovered until an appeal has been filed and the matter is before the appellate court. What then? Because the filing of a notice of appeal normally divests the circuit court of jurisdiction, circuit courts may be reluctant at that point to take further action. While the appellate court will be in a position to act, some appellate courts have questioned the efficacy of addressing fee and fine questions for the first time on review, and not all mistakes will be subject to the appellate court’s jurisdiction. And if the courts are uncertain on how to proceed, imagine the parties. Should they look to the circuit court first? To the appellate court? Is a separate action necessary? The answer has not always been obvious.
In light of these concerns, the Supreme Court decided to solicit comment from the Conference of Chief Judges on “best practices” for reducing errors in the initial imposition of sentences and for insuring that, if such errors still occur, there will be a clear and efficient mechanism for correcting them once they are discovered, whenever that may be. At the end of October, the Conference shared its views with the court and recommended certain rule changes. Shortly thereafter, the Appellate Lawyers Association also proposed a new rule addressing the same issues.
Using those submissions as a starting point, and after considerable discussion, the Supreme Court ultimately adopted a package of important new sentencing-related rules that will take effect March 1, 2019. Codified as new Supreme Court Rules 452, 472, 557 and 558, the new rules will apply to all criminal cases and cases involving traffic offenses, conservation offenses and ordinance violations. The rules were posted on the court’s website this week. I urge everyone to review them here.
Three features of the new rules warrant special attention. First, they do not govern correction of all sentencing errors, only those regarding the following: (1) the imposition or calculation of fines, fees, assessments or costs; (2) application of per diem credit against fines; (3) calculation of presentence custody credit; and (4) clerical errors in the written sentencing order or other part of the record resulting in a discrepancy between the record and the actual judgment of the court. The court focused on these four areas because they are the most common.
Second, in the spirit of Ben Franklin’s observation that an ounce of prevention is worth a pound of cure, they seek to reduce the need to correct errors in the foregoing areas by heading off mistakes before they happen. They do this by requiring the parties and the court to exercise greater scrutiny when sentence is initially imposed. In every case, the court will now be required to enter a written order imposing the sentence and all applicable fines, fees, assessments and costs and specifying any applicable credits. It will be the State’s responsibility to draft that written order for the court’s approval and to present it for review by the defendant or, if defendant is represented, by defense counsel, before submitting it to the court. This way, there will be no surprises or uncertainty. All relevant actors will have the opportunity to make sure the sentence that is actually imposed fully and accurately reflects the sentence the circuit court meant to impose and that it conforms to controlling sentencing provisions. See Rules 452 and 557.
Third, while the court is hopeful that the foregoing procedures will eliminate most errors, we recognize that mistakes will still happen. To deal with those situations, the new rules create a clear and unambiguous mechanism for fixing the specified types of sentencing errors discovered after judgment has been entered, eliminating uncertainty regarding what needs to be done, where, when and how. The rules make clear that motions to correct the enumerated errors may be made at any time after judgment, including while the case is on appeal, but such motions must always be directed to the circuit court in the first instance. If they are not – if the circuit court is not given first crack at fixing the error – the error cannot be grounds for an appeal. Moreover, as an incentive to take particular care, the parties will not be allowed multiple bites of the apple. If a party files a post-judgment motion raising a sentencing error pursuant to the new rules, the party must include all claims of sentencing error at that time. Any claim of error not so raised shall be deemed forfeited. See Rules 472 and 558.
Once the circuit court has ruled on a motion to correct sentence, the path forward is spelled out. Any doubt as to appealability of correction orders has been eliminated. The new rules expressly provide that when the circuit court rules on motion to correct the sentence more than 30 days after final judgment in the underlying case, the new ruling shall itself constitute a final, appealable judgment. The new judgment will not affect the pendency of any appeal of the judgment in the underlying case – that appeal will remain pending and shall not be stayed – but if the new judgment is also appealed, the two appeals shall be consolidated. Id.
The Supreme Court is anxious for these new procedures to take effect. Sentencing rules can be difficult to apply. Mistakes will inevitably be made. When they do occur, however, the parties are entitled to have them fixed. Justice is not served when a defendant is subject to penalties the law does not require or the court did not actually impose, nor is it served when the court fails to assess the fines, fees and costs the law demands. The Supreme Court is optimistic that the new rules will provide a welcome and effective solution for this chronic and critically important problem, and, in so doing, improve the quality of justice for all who come before our courts.