People v. Nunez

Citations: 553 N.E.2d 1123; 197 Ill. App. 3d 332; 143 Ill. Dec. 137; 1990 Ill. App. LEXIS 565Docket: 4-89-0268

Court: Appellate Court of Illinois; April 24, 1990; Illinois; State Appellate Court

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Richard Nunez was convicted of bringing contraband into a state penal institution and sentenced to one year of probation, including 120 days in jail. A recoupment order for $875 was imposed, to be deducted from his $1,500 bond. On appeal, Nunez contended that the recoupment amount was unreasonable, he lacked the ability to pay, and the judge failed to consider his affidavit of assets and liabilities as mandated by law. The State countered that these arguments were waived because they were raised for the first time on appeal. The court agreed with the waiver but noted an error in the calculation of the recoupment amount.

During pre-sentencing, Nunez had testified that he was unemployed, lived with his mother, and had no significant assets, with the bond being posted by family. The record lacked the affidavit he claimed to have submitted when requesting a court-appointed attorney. At sentencing, it was revealed that the prosecution sought reimbursement for the attorney's fees, to which Nunez did not object. The court decided to defer ruling on the fee assessment pending further proceedings. Overall, the court affirmed the conviction but modified the recoupment order due to a calculation error.

Neville provided 11 hours of legal services to the defendant, both in and out of court, for which the court calculated attorney fees at $75 per hour, totaling $875. The defendant was notified of a hearing regarding attorney fees but did not appear. The court determined the defendant's ability to pay was based on a $1,500 bond deposited on his behalf and ordered the $875 fee to be deducted from this bond. Under Section 113-3.1 of the Code, defendants may be required to reimburse for appointed legal representation, and the court must consider any financial information provided, including affidavits prepared by the defendant. However, the defendant raised objections to the recoupment order only on appeal, which was deemed waived unless the plain error rule applied. The court declined to apply this rule, referencing the case People v. Baker, which asserted that the defendant should not challenge the order at this stage after failing to do so at trial. 

The defendant's claim that the court must consider an affidavit he prepared was undermined by the absence of that document in the appeal record. The court noted that the intent of the legislation was to ensure the court had the relevant financial information, which was available through other sources. The defendant's argument regarding his inability to pay the order was dismissed as he had already paid it through the bond, which the court cited as definitive proof of his ability to pay. Lastly, the defendant contended the recoupment amount was unreasonable, but this claim was not supported as the trial judge who imposed the order was the same one who presided over the defendant’s trial, indicating a consistent judicial assessment.

The trial court, aware of the defendant's financial situation and having received an affidavit from the defendant’s court-appointed counsel detailing 11 hours of work, issued a recoupment order at a rate of $75 per hour, despite the State’s Attorney recommending $20 per hour. The defendant was convicted of bringing cannabis into a state penal institution, a Class 4 felony. Under Illinois law, specifically section 113-3.1(b) of the Code, the court may order a recoupment up to $5,000. The court did not find the $75 hourly rate unreasonable, and the defendant conceded its appropriateness in reflecting the county's legal service costs. The defendant’s argument centered on whether the recoupment order exceeded the county's actual costs for court-appointed counsel; however, the court determined that the defendant had no standing to challenge this, as the legislative framework allows for recoupment orders independent of actual expenditures incurred by the county. Additionally, the court noted that the statute was amended to clarify that the recoupment figure is at the court’s discretion and does not need to match documented costs. Although the trial court's calculations were found to be slightly off—resulting in a $875 order instead of the correct $825 based on the calculated hours—the amount was deemed reasonable. Consequently, the recoupment order was modified to $825, and the trial court’s decision was affirmed as modified.