source: Caselaw Access Project

license: Public Domain

text:
    Carole E. AASEN, et al., Plaintiffs-Appellants, v. David J. RICKERT, Treasurer and ex officio Collector of Kane County, Defendant-Appellee.
    No. 2-17-0036
    Appellate Court of Illinois, Second District.
    Opinion filed February 5, 2018 Rehearing denied March 19, 2018
    Thomas J. McNulty, Steven F. Pflaum, David S. Martin, and Amanda E. Fraerman, of Neal, Gerber & Eisenberg LLP, of Chicago, for appellants.
    Joseph H. McMahon, State's Attorney, of St. Charles (Lindsay A. Hatzis and Joseph F. Lulves, Assistant State's Attorneys, of counsel), for appellee.
   JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Carole Aasen and approximately 665 other tax objectors (Objectors), appeal the judgment of the trial court denying their motion for summary judgment and dismissing their tax objection complaints against defendant, David J. Rickert, treasurer and ex officio collector of Kane County (Collector). The Objectors argue that the Kane County clerk lacked the authority to use the Illinois Department of Revenue's amended apportionments for tax year 2012 to collect taxes in tax year 2014. We affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Stipulated Facts

¶ 4 The parties stipulated to the relevant facts in these three cases, consolidated in the trial court, as follows. The Objectors each own real property in a part of Kane County within a taxing district that lies in at least one other county. Specifically, the Objectors own property located in the following taxing districts lying in the following counties:

District Counties Elgin School District U46 Kane, Du Page, and Cook Elgin College District 509 Kane, Cook, and De Kalb Elgin City Kane and Cook Gail Borden Library Kane and Cook

¶ 5 The drafters of the 1970 Illinois Constitution, recognizing the need for the fair apportionment of the burden of taxation of property in taxing districts that overlap more than one county, provided as follows:

"The General Assembly may provide by law for fair apportionment of the burden of taxation of property situated in taxing districts that lie in more than one county." Ill. Const. 1970, art. IX, § 7.

¶ 6 Accordingly, section 18-155 of the Property Tax Code (Code) ( 35 ILCS 200/18-155 (West 2014) ), entitled "Apportionment of taxes for districts in two or more counties," provides for the fair apportionment of that burden. To accomplish this goal, section 18-155 authorizes the Department of Revenue (DOR) to apportion the amounts to be raised by taxation on property in a district that overlaps multiple counties, so that each county bears the burden as though all parts of the district had been assessed at the same proportion of actual value. It also authorizes the DOR to certify to each county clerk the percentage constituting that county's burden, which the clerk will apply to the property of the taxing district that lies in that county. 35 ILCS 200/18-155(c) (West 2014).

¶ 7 Section 18-155 of the Code provides in relevant part:

"The burden of taxation of property in taxing districts that lie in more than one county shall be fairly apportioned as provided in Article IX, Section 7, of the Constitution of 1970.
* * * When the Department has received a written request for equalization for overlapping tax districts as provided in this Section, the Department shall promptly notify the county clerk and county treasurer of each county affected by that request that tax bills with respect to property in the parts of the county which are affected by the request may not be prepared or mailed until the Department certifies the apportionment among counties of the taxing districts' levies, except as provided in subsection (c) of this Section. To apportion, the Department shall:
(a) On or before December 31 of that year cause an assessment ratio study to be made in each township in which each of the named overlapping taxing districts lies, using equalized assessed values as certified by the county clerk, and an analysis of property transfers prior to January 1 of that year. The property transfers shall be in an amount deemed reasonable and proper by the Department. The Department may conduct hearings, at which the evidence shall be limited to the written presentation of assessment ratio study data.
(b) Request from the County Clerk in each County in which the overlapping taxing districts lie, certification of the portion of the assessed value of the prior year for each overlapping taxing district's portion of each township. Beginning with the 1999 taxable year, for those counties that classify property by county ordinance pursuant to subsection (b) of Section 4 of Article IX of the Illinois Constitution, the certification shall be listed by property class as provided in the classification ordinance. The clerk shall return the certification within 30 days of receipt of the request.
(c) Use the township assessment ratio studies to apportion the amount to be raised by taxation upon property within the district so that each county in which the district lies bears that burden of taxation as though all parts of the overlapping taxing district had been assessed at the same proportion of actual value. The Department shall certify to each County Clerk, by March 15 , the percent of burden. Except as provided below, the County Clerk shall apply the percentage to the extension as provided in Section 18-45 to determine the amount of tax to be raised in the county.
If the Department of Revenue does not certify the percent of burden in the time prescribed, the county clerk shall use the most recent prior certification to determine the amount of tax to be raised in the county.
If the use of a prior certified percentage results in over or under extension for the overlapping taxing district in the county using same, the county clerk shall make appropriate adjustments in the subsequent year . Any adjustments necessitated by the procedure authorized by this Section shall be made by increasing or decreasing the tax extension by fund for each taxing district where a prior certified percentage was used. No tax rate limit shall render any part of a tax levy illegally excessive which has been apportioned as herein provided. The percentages certified by the Department shall remain until changed by reason of another assessment ratio study made under this Section ." (Emphases added.) 35 ILCS 200/18-155 (West 2014).

¶ 8 In this case, for the tax year 2012, the DOR did not certify the apportionments for the districts at issue to the county clerks by March 15, 2013. Accordingly, the Kane County clerk used the most recent prior certification to determine the Objectors' property taxes for tax year 2012.

¶ 9 On May 15, 2013, the DOR certified the apportionments for tax year 2012 to the county clerks. The DOR's apportionment percentage for Kane County was lower than in the certification used for the tax bills issued for tax year 2012. On March 14, 2014, the DOR certified the apportionments for tax year 2013. On March 26, 2014, when the Kane County clerk extended the tax burden for tax year 2013, he reduced the amount of tax extended to adjust for the over-extension in tax year 2012. The parties do not dispute that the Kane County clerk had the authority pursuant to section 18-155(c) of the Code to make this adjustment.

¶ 10 On May 21, 2014, the DOR certified a "Corrected" apportionment of the districts' tax burdens for tax year 2012, and on December 12, 2014, the DOR certified "Amended" apportionments of the districts' tax burdens. For tax year 2014, the Kane County clerk applied the amended apportionments to the extension for tax year 2012. On February 9, 2015, the Kane County clerk informed the Objectors via letter that:

"[F]or the past two years the tax rates for the taxing districts [at issue] were disproportionately low due to an issue with the percent of burden that Kane County property owners pay to the [taxing districts at issue].
* * * The percentages the Department of Revenue assigned to Kane County were too low and were too high in DuPage and Cook Counties based upon numbers they received from this office in 2011 and 2012 and did not reflect an accounting change due to a software issue.
The software issue has been resolved, but the affected parcels will have to pay an increased rate for the 2014 tax year to make up the difference. As a result, the tax rate for the affected districts will increase."

Thus, in 2015, when the Kane County clerk extended the tax burden in the Objectors' districts for tax year 2014, the extension included a "Manual Adjustment" that reflected the amended apportionments for tax year 2012.

¶ 11 The apportionments for tax year 2012 were:

District Originally extended by Certified by DOR Amended by DOR Dec. clerk May 2013 May 2013 & adjusted by 2014, with "Manual using prior certified clerk March 2014 Adjustment" included in percentage 2015 Elgin U46 34.28% 31.54% 33.63% Elgin 509 61.62% 60.53% 61.86% Elgin City 79.61% 78.47% 79.60% Borden 68.21% 66.40% 68.09%

¶ 12 B. Proceedings

¶ 13 On October 1, 2015, the Objectors filed tax objection complaints against the Collector, pursuant to section 23-5 of the Code ( 35 ILCS 200/23-5 (West 2014) ), alleging that the Kane County clerk's application of the amended apportionments for tax year 2012 to the collection of taxes for tax year 2014 was void and illegal pursuant to, inter alia , section 18-155 of the Code.

¶ 14 The Objectors moved for summary judgment. On January 10, 2017, after hearing the parties' arguments, the trial court denied the Objectors' motion for summary judgment and dismissed their complaints, stating, in part:

"[T]he language of Section 18-155, the objective in ensuring correct, appropriate adjustments are made, and the burden of taxation of property in taxing districts that lie in more than one county-that lie in more than one county is fairly apportioned as provided by the statute, this Court finds that the action taken by the County Clerk is not contrary to [the] statute and the county clerk is authorized under Section 18-155 to adjust the tax objector's [sic ] 2014 taxes to account for the apportionment for 2012."

¶ 15 The Objectors filed their notice of appeal on January 12, 2017.

¶ 16 After the parties filed their appellate briefs, this court, on its own motion, ordered the parties to prepare supplemental briefs addressing: "(1) what the legislative intent and legislative history of section 18-155 of the Code provides relating to the county clerk's authority and/or obligation to extend taxes after receiving a certification, and (2) how the legislative history and legislative intent support their respective interpretations of Section 18-155."

¶ 17 II. ANALYSIS

¶ 18 The Objectors argue that the trial court erred by denying their motion for summary judgment and by dismissing their tax objection complaints, because the Kane County clerk lacked the authority to use the DOR's amended apportionments for tax year 2012 in connection with the extension for tax year 2014.

¶ 19 Summary judgment motions are governed by section 2-1005 of the Code of Civil Procedure ( 735 ILCS 5/2-1005 (West 2014) ). Pursuant to that section, summary judgment should be granted only where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is clearly entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). Whether summary judgment was appropriate in this case turns on the trial court's interpretation of section 18-155 of the Code.

¶ 20 We review de novo an order granting or denying summary judgment. See Millennium Park Joint Venture, LLC v. Houlihan , 241 Ill. 2d 281, 309, 349 Ill.Dec. 898, 948 N.E.2d 1 (2010). De novo review is also appropriate to the extent that this case turns on construction of the Code and thus presents a question of law. See Better Government Ass'n v. Zaruba , 2014 IL App (2d) 140071, ¶ 20, 386 Ill.Dec. 753, 21 N.E.3d 516.

¶ 21 The Objectors argue that the Kane County clerk lacked the authority to use the DOR's 2014 certified amended apportionments for tax year 2012. The Objectors contend that section 18-155(c) of the Code allows a county clerk to adjust an apportionment only in "the subsequent year," meaning the following tax year, which in this case was 2013. The Collector argues that this interpretation is contrary to the plain language and purpose of the statute. The Collector contends that "the subsequent year" means the year after the DOR certifies the apportionment.

¶ 22 The primary rule of statutory interpretation is to give effect to the intent of the legislature. Board of Education of Springfield School District 186 v. Attorney General of Illinois , 2017 IL 120343, ¶ 24, 413 Ill.Dec. 20, 77 N.E.3d 625. The best evidence of the legislature's intent is the language of the statute itself, given its plain and ordinary meaning. Id. We must avoid interpreting a statute in a manner that would create absurd results or render part of the statute a nullity. See Nelson v. Artley , 2015 IL 118058, ¶¶ 25, 27, 396 Ill.Dec. 374, 40 N.E.3d 27. "Additionally, in construing statutes relating to the levying and collection of taxes, this court has sought to give them a reasonable and commonsense meaning, so as to avoid making it difficult or impossible for taxes to be levied and collected." In re Application for Judgment & Sale of Delinquent Properties for the Tax Year 1989 , 167 Ill. 2d 161, 169, 212 Ill.Dec. 215, 656 N.E.2d 1049 (1995).

¶ 23 The Objectors' interpretation, that "the subsequent year" means the following tax year, is counter to these principles and reads into the relevant language the words "tax year." This interpretation ignores the purpose of the statute, which, again, provides:

"The burden of taxation of property in taxing districts that lie in more than one county shall be fairly apportioned as provided in Article IX, Section 7, of the Constitution of 1970." 35 ILCS 200/18-155 (West 2014).

¶ 24 Under section 18-155, the DOR conducts an assessment ratio study in each township in which an overlapping district lies, by using equalized assessed values of taxable property and an analysis of property transfers. 35 ILCS 200/18-155(a) (West 2014). The DOR then uses these studies to apportion the amount of property tax to be raised within the district, "so that each county in which the district lies bears that burden of taxation as though all parts of the overlapping taxing district had been assessed at the same proportion of actual value." 35 ILCS 200/18-155(c) (West 2014). The DOR then certifies to each county clerk the percentage constituting that county's burden. Id.

¶ 25 A county clerk's duty is to fix the amount of taxes that will be extended. In re Application for Judgment & Sale , 167 Ill. 2d at 174, 212 Ill.Dec. 215, 656 N.E.2d 1049. A county clerk's duties in the extension of taxes are purely ministerial; thus, a clerk has no power to determine whether taxes have been legally assessed. Id.

¶ 26 Here, once the DOR certified the amended apportionments, the Kane County clerk had a duty to extend the taxes to determine the amount to be raised. See id.

If it were otherwise, the DOR's mandate would be thwarted. In determining the legislature's intent, we consider the necessity and purpose for the law, the evils sought to be remedied, and the goals sought to be achieved. Progressive Universal Insurance Co. v. Liberty Mutual Fire Insurance Co. , 215 Ill. 2d 121, 134, 293 Ill.Dec. 677, 828 N.E.2d 1175 (2005).

¶ 27 Although the Objectors urge this court to limit "the subsequent year" to mean subsequent tax year, we will not read this limitation into the statute, particularly where it conflicts with the legislature's express intent, namely, that "[t]he burden of taxation of property in taxing districts that lie in more than one county shall be fairly apportioned." 35 ILCS 200/18-155 (West 2014) ; see Brunton v. Kruger , 2015 IL 117663 ¶ 24, 392 Ill.Dec. 259, 32 N.E.3d 567 (in interpreting a statute, a court must not read into it exceptions, limitations, or conditions that conflict with the express intent of the legislature). The Objectors' interpretation would defeat the stated purpose of section 18-155 by prohibiting a county clerk from applying a fair apportionment, as determined by the DOR, to property in taxing districts that lie in more than one county. See Brucker v. Mercola , 227 Ill. 2d 502, 514, 319 Ill.Dec. 543, 886 N.E.2d 306 (2007) (each word, clause, and sentence in a challenged statute is to be given some reasonable meaning and not rendered superfluous).

¶ 28 Further, the Objectors' interpretation would produce an unjust result in this case by nullifying the Kane County clerk's appropriate extension based upon the correct apportionments as certified by the DOR. See Progressive Universal Insurance Co. , 215 Ill. 2d at 134, 293 Ill.Dec. 677, 828 N.E.2d 1175 (when interpreting a statute, a court must presume that the legislature did not intend to produce absurd, inconvenient, or unjust results). As stated in the Kane County clerk's February 2015 letter, "[t]he percentages the Department of Revenue assigned to Kane County were too low and were too high in DuPage and Cook Counties." If we adopt the Objectors' interpretation as to the amended apportionments, the statute's purpose would not be implemented and it would be rendered a nullity. See In re Detention of Lieberman , 201 Ill. 2d 300, 308, 267 Ill.Dec. 81, 776 N.E.2d 218 (2002) (when interpreting a statute, courts may consider the nature and object of the statute and the consequences that would result from construing it one way or the other).

¶ 29 The Objectors support their interpretation of "the subsequent year" in section 18-155 by citing section 18-157 of the Code. 35 ILCS 200/18-157 (West 2014). Section 18-157 provides in relevant part:

"If a court, in any tax objection based on the apportionment of an overlapping taxing district under Section 18-155, enters a final judgment that there was an over extension or under extension of taxes for an overlapping taxing district based on the apportionment under Section 18-155 for the year for which the objection was filed, the county clerks of each county in which there was an under extension shall proportionately increase the levy of that taxing district by an amount specified in the court order in that county in the subsequent year or in any subsequent year following the final judgment of the court." (Emphasis added.) Id.

¶ 30 The Objectors contend that section 18-157 and section 18-155 use the phrase "the subsequent year" to refer to the year immediately following the tax year for which an apportionment is at issue. However, words in a statute must be read in context, rather than in isolation. Skolnick v. Altheimer & Gray , 191 Ill. 2d 214, 229, 246 Ill.Dec. 324, 730 N.E.2d 4 (2000). The Objectors' interpretation of the phrase in section 18-157 entirely ignores the context in which it appears. The legislature was addressing the action that county clerks must take when a court enters a specific final judgment. When read in context, that phrase, as well as the phrase "or in any subsequent year," relates to the "final judgment of the court" ( 35 ILCS 200/18-157 (West 2014) ). Thus, the Objectors' interpretation of the phrase in section 18-157 does not support their interpretation of the phrase in section 18-155. Under section 18-155, the phrase relates to the DOR's certification of an apportionment, which it may do in any subsequent year, requiring the ministerial application by the clerk of a tax rate consistent with that apportionment.

¶ 31 Further, the Objectors fail to cite authority limiting the DOR to one apportionment, and we have found no indication that the legislature intended to limit when the DOR may amend an apportionment. Although section 18-155(c) provides that "[t]he Department shall certify to each County Clerk, by March 15 , the percent of burden," that section also provides that, if the DOR "does not certify the percent of burden in the time prescribed, the county clerk shall use the most recent prior certification" and that "[t]he percentages certified by the Department shall remain until changed by reason of another assessment ratio study made under this Section." 35 ILCS 200/18-155(c) (West 2014). The statute further provides: "If the use of a prior certified percentage results in over or under extension for the overlapping taxing district in the county using same, the county clerk shall make appropriate adjustments in the subsequent year ." Id. Reading the statute as a whole, we determine that "the subsequent year" means the year after the DOR certifies the apportionment. Under the Objectors' interpretation, if the DOR had certified a lower percentage in this case, the Kane County clerk would not be authorized to make an adjustment in the Objectors' favor. Because the Objectors' interpretation is illogical, and for the reasons stated above, we reject the Objectors' interpretation.

¶ 32 In addition, the Objectors argue that their interpretation is supported by the recent addition of section 18-156 to the Code. The Objectors contend that section 18-156, applicable for tax year 2015 and thereafter ( 35 ILCS 200/18-156(e) (West 2016) ), authorizes the DOR to revise an apportionment if a county's share of an overlapping taxing district's tax levy "is subsequently determined to exceed 105% of what that county's share should have been." 35 ILCS 200/18-156(a) (West 2016). Therefore, the Objectors argue, here the DOR had no such authority to revise the apportionment, because section 18-156 was not yet effective.

¶ 33 The argument fails because the Objectors fail to recognize that section 18-155 provides that "[t]he percentages certified by the Department shall remain until changed by reason of another assessment ratio study made under this Section." 35 ILCS 200/18-155(c) (West 2014). Further, section 18-155 does not limit the DOR's authority to revise an apportionment. Accordingly, we reject the Objectors' argument regarding section 18-156.

¶ 34 The Objectors also argue that the Kane County clerk's manual adjustment was erroneous because "taxes must have some degree of finality, stability, and security to the taxpayer." Hamer v. Kirk , 57 Ill. App. 3d 335, 341, 14 Ill.Dec. 933, 373 N.E.2d 64 (1978). We recognize the importance of these goals. However, the purpose of section 18-155 is to fairly apportion the burden of taxation of property in taxing districts that lie in more than one county. Section 18-155 provides a mechanism to achieve this purpose by allowing county clerks to make adjustments when the use of prior certifications results in over or under extensions. The legislature does not appear to have sought finality in achieving this purpose, and though citing Hamer for the general proposition, the Objectors do not cite authority directly on point.

¶ 35 Accordingly, the trial court properly denied the Objectors' motion for summary judgment and dismissed the Objectors' tax objection complaints.

¶ 36 III. CONCLUSION

¶ 37 For the reasons stated, we affirm the trial court's order.

¶ 38 Affirmed.

Justices Zenoff and Jorgensen concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David MULLEN, Defendant-Appellant.
    No. 1-15-2306
    Appellate Court of Illinois, First District, FIRST DIVISION.
    February 5, 2018
    Michael J. Pelletier, Patricia Mysza, and Robert Hirschhorn, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Mari R. Hatzenbuehler, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 Defendant David Mullen was convicted of robbery. Mr. Mullen does not challenge his conviction. The issues in his appeal concern only the fines and fees imposed in his case. Mr. Mullen argues that the trial court erred in assessing a $500 public defender attorney fee against him because he was not provided with the statutorily mandated hearing. Mr. Mullen also contends that the trial court erred by not giving him a presentence incarceration credit and by failing to properly calculate which monetary assessments were eligible for offset by such a credit. For the following reasons, we remand for a statutorily compliant hearing on whether Mr. Mullen should be required to reimburse the State for any part of the cost of his representation by the public defender's office. We also direct that Mr. Mullen's fines and fees order be modified to accurately reflect the presentence incarceration credit to which he is entitled.

¶ 2 I. BACKGROUND

¶ 3 Mr. Mullen was charged with armed robbery and unlawful restraint. He was appointed a public defender. Prior to trial, the State filed a motion for reimbursement of funds for Mr. Mullen's use of the services of the public defender's office.

¶ 4 At Mr. Mullen's bench trial, the State presented witnesses who testified that, on September 13, 2014, Mr. Mullen followed Nyiesha Maclin into the vestibule of her apartment building. Once inside, Mr. Mullen grabbed Ms. Maclin by the neck and threw her against a wall. Mr. Mullen took Ms. Maclin's purse, keys, cell phone, and a ring. Ms. Maclin's cell phone had a remote tracking application, which Chicago police officers used to track her phone to a liquor store. At the store, the officers had Ms. Maclin remotely trigger her cell phone's alarm, allowing them to locate and arrest Mr. Mullen. The trial court found Mr. Mullen guilty of robbery and unlawful restraint. The court merged Mr. Mullen's unlawful restraint conviction into his robbery conviction, and the case proceeded to sentencing.

¶ 5 Because of his criminal background, the trial court sentenced Mr. Mullen as a Class X offender to seven years' imprisonment. At the end of the sentencing hearing, Mr. Mullen's public defender had the following exchange with the court regarding the State's motion for reimbursement of the cost of the public defender's representation:

"THE COURT: How many times have you appeared on this?
DEFENSE COUNSEL: Seven, your Honor.
THE COURT: You went to trial on this?
DEFENSE COUNSEL: Yes, your Honor.
THE COURT: Attorney fees are $500."

¶ 6 In addition to the public defender fee, the other fines and fees assessed against Mr. Mullen appear on a form titled "ORDER ASSESSING FINES, FEES AND COSTS." It is a preprinted order provided by the clerk of the circuit court of Cook County. This order, which will be referred to as the fines and fees order, lists certain assessments as "FINES OFFSET by the $5 per day pre-sentence incarceration credit pursuant to 725 ILCS 5/110-14(a)." In Mr. Mullen's case, the fines imposed in this category included the following: a $10 mental health court fine ( 55 ILCS 5/5-1101(d-5) (West 2014) ), a $5 youth diversion/peer court fine (id. § 5-1101(e) ), a $5 drug court fine (id. § 5-1101(f) ), and a $30 children's advocacy center fine (id. § 5-1101(f-5) ).

¶ 7 The fines and fees order also lists "FINES NOT OFFSET by the $5 per-day pre-sentence incarceration credit" (emphasis in original), which Mr. Mullen had none of, and "FEES AND COSTS NOT OFFSET by the $5 per-day pre-sentence incarceration credit" (emphasis in original), including the following: a $190 felony complaint filing fee ( 705 ILCS 105/27.2a(w)(1)(A) (West 2014) ), a $60 felony complaint conviction fee ( 55 ILCS 5/4-2002.1(a) (West 2014) ), a $20 probable cause hearing fee (id. ), a $15 automation fee ( 705 ILCS 105/27.3a(1.5) (West 2014) ), a $15 state police operations fee (id. ), a $2 public defender records automation fee ( 55 ILCS 5/3-4012 (West 2014) ), a $2 state's attorney records automation fee (id. § 4-2002.1(c) ), a $15 document storage fee ( 705 ILCS 105/27.3c (West 2014) ), a $5 electronic citation fee (id. § 27.3e), a $25 court services fee ( 55 ILCS 5/5-1103 (West 2014) ), a $50 court system fee (id. § 5-1101(c) ), a $10 arrestee's medical costs fund fee ( 730 ILCS 125/17 (West 2014) ), and a $10 probation and court services operations fee ( 705 ILCS 105/27.3a(1.1) (West 2014) ).

¶ 8 Mr. Mullen's fines and fees order reflects that he spent 263 days in pretrial custody and simply states "(Allowable credit toward fine will be calculated)," without specifying what monetary credit Mr. Mullen should receive for his presentence incarceration.

¶ 9 II. JURISDICTION

¶ 10 Mr. Mullen was sentenced on June 2, 2015, and timely filed his notice of appeal on June 5, 2015. This court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rules 603 and 606, governing appeals from final judgments of conviction in criminal cases (Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013) ).

¶ 11 III ANALYSIS

¶ 12 On appeal, Mr. Mullen argues that the $500 public defender attorney fee assessed against him should be vacated because the trial court imposed it without first conducting a proper hearing under section 113-3.1 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/113-3.1(a) (West 2014) ). The State agrees but argues that we should remand for a statutorily compliant hearing rather than vacate the fee outright. Mr. Mullen also asks that we amend his fines and fees order, both because the trial court failed to give him $5 per day of credit for the 263 days he spent in presentence incarceration, and because the court improperly categorized certain assessments as fees rather than fines, making them not subject to that credit. The State agrees that some, but not all, of the assessments were improperly categorized as fees, but insists that Mr. Mullen has forfeited any objection to that mischaracterization. We address each argument in turn.

¶ 13 A. Public Defender Fee

¶ 14 Mr. Mullen failed to object to the trial court's imposition of a $500 public defender attorney fee at his sentencing hearing. The State concedes that Mr. Mullen's silence was not a forfeiture of this issue, and we agree. Our supreme court has expressly held that forfeiture is "inappropriate" and "should not be applied" when the trial court ignores the statutory procedures for reimbursement of this public defender fee. People v. Love , 177 Ill. 2d 550, 564, 227 Ill.Dec. 109, 687 N.E.2d 32 (1997) ; see also People v. Carreon , 2011 IL App (2d) 100391, ¶ 11, 355 Ill.Dec. 783, 960 N.E.2d 665 ("where a trial court imposes [the public defender fee] without following the appropriate procedural requirements, application of the forfeiture rule is inappropriate").

¶ 15 The State concedes that the trial court's inquiry did not sufficiently comport with the statutory hearing requirements outlined in section 113-3.1(a) of the Code. As the State recognizes, to comply with section 113-3.1(a), the hearing must be held within 90 days of the trial court's entry of the final order and must "focus on the foreseeable ability of the defendant to pay reimbursement as well as the costs of the representation provided." Love , 177 Ill. 2d at 563, 227 Ill.Dec. 109, 687 N.E.2d 32. Only where the trial court finds that a defendant has an ability to pay may it order reimbursement for appointed counsel. Id.

¶ 16 Although the parties agree that Mr. Mullen did not receive a sufficient hearing, they disagree about the appropriate remedy. According to Mr. Mullen, the trial court's brief exchange with defense counsel about the number of appearances he made was not a "hearing," and because the 90-day statutory timeframe for holding such a hearing has passed, a remand would not be appropriate. The State responds that, although it was a clearly deficient one, the trial court did hold a "hearing" within the mandated timeframe, and urges us to remand the case to the trial court for a compliant hearing. Our supreme court has held that if the trial court conducts "some sort of hearing" within the 90-day statutory timeframe, although that hearing is deficient under section 113-3.1(a), a remand for a more complete hearing is the proper remedy. People v. Somers , 2013 IL 114054, ¶¶ 15, 18, 368 Ill.Dec. 525, 984 N.E.2d 471 (holding that the trial court's three questions about the defendant's ability to pay attorney fees did not fully comply with the statute but qualified as "some sort of hearing" during the 90-day statutory period, and therefore there was no impediment to remanding the cause for a proper hearing).

¶ 17 Whether the trial court's questioning in this case qualifies as "some sort of hearing" was fully resolved by our supreme court's recent decision in People v. Hardman , 2017 IL 121453, --- Ill.Dec. ----, --- N.E.3d ----, issued after the briefing in this case was completed. In Hardman , as in this case, the hearing consisted solely of the trial court asking the public defender how many times she had appeared. Id. ¶ 66. Our supreme court found that this line of questioning, with the parties present, within the 90-day limit and after the State had expressly sought reimbursement for the public defender's services, was a sufficient basis on which to find that "some sort of hearing" had occurred under Somers . Thus, in this case, as in Hardman , remand for a hearing that satisfies section 113-3.1(a) is the appropriate remedy.

¶ 18 B. Other Fines and Fees

¶ 19 Mr. Mullen next argues that his other assessed fines, fees, and costs should be reduced from $469 to $330 based on his presentence incarceration credit and the mischaracterization of certain assessments as fees rather than fines.

¶ 20 Mr. Mullen's argument is based on section 110-14(a) of the Code, which provides:

"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction for the offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant." 725 ILCS 5/110-14(a) (West 2014).

¶ 21 Under this statute, a defendant who is incarcerated prior to trial earns a presentence incarceration credit that may be applied to fines, but not to fees. People v. Brown , 2017 IL App (1st) 150146, ¶ 35, 414 Ill.Dec. 465, 80 N.E.3d 608 (citing 725 ILCS 5/110-14(a) (West 2012) ); People v. Johnson , 2011 IL 111817, ¶ 8, 355 Ill.Dec. 417, 959 N.E.2d 1150. "A charge is considered a fee where it [is] assessed in order to recoup expenses incurred by the state, or to compensate the state for some expenditure incurred in prosecuting the defendant." (Internal quotation marks omitted.) Brown , 2017 IL App (1st) 150146, ¶ 35, 414 Ill.Dec. 465, 80 N.E.3d 608. In contrast, a fine is "punitive in nature and is a pecuniary punishment imposed as part of a sentence on a person convicted of a criminal offense." (Internal quotation marks omitted.) Id.

¶ 22 Mr. Mullen argues that the following assessments-which the form fines and fees order characterizes as fees-are actually fines for which he should be allowed credit: the $10 arrestees medical cost fee ( 730 ILCS 125/17 (West 2014) ); the $15 state police operations fee ( 705 ILCS 105/27.3a(1.5) (West 2014) ); the $2 public defender records automation fee ( 55 ILCS 5/3-4012 (West 2014) ); the $2 state's attorney records automation fee (id. § 4-2002.1(c) ); the $10 probation and court services operations fee ( 705 ILCS 105/27.3a(1.1) (West 2014) ); the $25 court services fee ( 55 ILCS 5/5-1103 (West 2014) ); and the $50 court systems fee (id. § 51101(c)(1) ).

¶ 23 Because Mr. Mullen did not raise these challenges before the trial court, the State argues that they are forfeited. We note that, in our experience, defendants rarely, if ever, raise these issues in the trial court and it is this court which routinely addresses these issues for the first time. The State, which itself often forfeits its argument that a defendant has forfeited his or her right to raise a fines and fees issue (see, e.g. , People v. Smith , 2018 IL App (1st) 151402, ¶ 7, 420 Ill.Dec. 543, 97 N.E.3d 117 ), has not done so here, so we first address whether Mr. Mullen has forfeited his right to raise these arguments.

¶ 24 1. Reviewability of Claims for the First Time on Appeal

¶ 25 Mr. Mullen requests that we review his claims under either the plain-error doctrine (citing People v. Lewis , 234 Ill. 2d 32, 47-49, 332 Ill.Dec. 334, 912 N.E.2d 1220 (2009) ) or our authority under Illinois Supreme Court Rule 615(b). Alternatively, Mr. Mullen claims his trial counsel was ineffective for failing to object at trial to the erroneously imposed fines, fees, and costs.

¶ 26 We agree with Mr. Mullen that we can review whether the assessments against him were properly considered fees as plain error. We also believe that his claims for appropriate presentence incarceration credit are not subject to forfeiture because our supreme court has made clear that claims for such credit under section 110-14 of the Code may be raised "at any time and at any stage of the court proceedings, even on appeal in a postconviction petition." People v. Caballero , 228 Ill. 2d 79, 88, 319 Ill.Dec. 364, 885 N.E.2d 1044 (2008).

¶ 27 Before addressing Mr. Mullens's claims-and explaining more fully why we do not believe that they are forfeited-we pause to concur fully with some of the concerns expressed by other members of this court regarding both the fact that it has become customary for defendants to raise arguments about fines and fees for the first time in the appellate court and the complicated, inefficient, and oppressive manner in which fines and fees are frequently assessed against convicted defendants in the trial court.

¶ 28 The form order used in Mr. Mullen's case to assess fines, fees, and costs lists 96 different fines and fees. These are divided into three categories: fines that can be offset, fines that cannot be offset, and fees and costs that are not offset. Notably, the characterizations on the form order do not comport with our settled legal precedent governing what is a fine and what is a fee. The form includes several items listed as fees and costs not subject to offset that this court has repeatedly held are fines subject to offset. For example, the form characterizes the $15 state police operations fee and the $50 court systems fee as fees "NOT OFFSET by the $5 per-day pre-sentence incarceration credit" (emphasis in original). But the State in this case concedes that, under settled precedent, each of these is a fine subject to offset. See People v. Moore , 2014 IL App (1st) 112592, ¶ 46, 2014 WL 1948168 (state police operations fee); People v. Smith , 2013 IL App (2d) 120691, ¶ 21, 376 Ill.Dec. 936, 1 N.E.3d 648 (court systems fee).

¶ 29 As Justice Mason recently and eloquently noted in Smith , 2018 IL App (1st) 151402, ¶ 8, 420 Ill.Dec. 543, 97 N.E.3d 117, "[t]he delay and expense involved in briefing these issues in this court is perhaps the least efficient means of resolving them." Prior to the Smith decision, Justice Mason noted in People v. Grigorov , 2017 IL App (1st) 143274, ¶ 16, 418 Ill.Dec. 689, 91 N.E.3d 390, "we find that in the long run, judicial economy would be best served if fines-and-fees issues were resolved expeditiously at the trial court level, rather than requiring the time and expense of an appeal in the first place." And in People v. Griffin , 2017 IL App (1st) 143800, 415 Ill.Dec. 241, 82 N.E.3d 186, although this court refused to allow the defendant to bring a free-floating attack in the appellate court on the order assessing fines and fees because we found that there was no final order being appealed and thus no appellate jurisdiction ( id. ¶ 25 ), we also noted that "[c]opious amounts of time, effort, and ink are spent resolving these issues at the appellate level" when they could be better resolved at the trial level and through agreed orders ( id. ¶ 6 ). It is particularly troubling to see these issues repeatedly arise on appeal in cases where both sides agree that the assessments were erroneously imposed. See People v. Bridgeforth , 2017 IL App (1st) 143637, ¶ 50, 416 Ill.Dec. 773, 86 N.E.3d 1058 ("[G]iven that the State concedes that these assessments were imposed in error, we do not understand the apparent failure of the State and appellate counsel to communicate and resolve these errors by moving for an agreed order in the trial court to correct the errors and eliminate the need to raise and brief additional issues on appeal. * * * [S]carce resources can be better directed to address disputed issues.").

¶ 30 The time spent briefing fines and fees issues on appeal is time that attorneys in the Office of the State Appellate Defender and the state's attorney's appeals divisions could be spending on other cases. The backlog in those offices has meant that multiple requests for extensions in briefing schedules are routinely made, usually resulting in years between when a criminal appeal is filed and when the court is able to issue a decision. This means that a criminal defendant may sit in prison for a conviction that is later reversed on appeal, but only after the defendant has already served the complete sentence for that conviction.

¶ 31 It is true, as the court noted in Grigorov , that many of these fines and fees are not even collectible. Grigorov , 2017 IL App (1st) 143274, ¶ 20, 418 Ill.Dec. 689, 91 N.E.3d 390. Even so, their imposition matters to defendants, as unpaid fines can subject a defendant to orders of withholding and wage garnishment. As the Smith court observed, unpaid fines and fees can "have lasting repercussions for criminal defendants":

"Unpaid fines (not including fees) in criminal cases may be subject to an order of withholding [citation], which renders a defendant's wages subject to garnishment * * *. * * * Further, a criminal conviction results in a lien on the defendant's real and personal property. [Citation.] Thirty days after judgment, a defendant's property may be seized or sold to satisfy any unpaid fines and costs of prosecution. * * * Unpaid fines and fees may also be the subject of collection actions initiated by the State's Attorney, which entail a 30% surcharge plus 9% interest on the unpaid amount [citation] and unpaid fines carry with them the threat of imprisonment for an intentional refusal to pay." Smith , 2018 IL App (1st) 151402, ¶ 9, 420 Ill.Dec. 543, 97 N.E.3d 117.

¶ 32 We share these concerns and join the chorus of voices from members of our court urging trial court judges and counsel to address these issues in the first instance in the trial court-by agreement where possible. We also join the call for the legislature to eliminate many of these uncollectible but oppressive assessments, to amend statutory provisions to conform with judicial findings as to which of them are fees and which are fines, and to correctly label the various assessments so that the judiciary can rely on the label in categorizing them. See People v. Jones , 223 Ill. 2d 569, 583, 308 Ill.Dec. 402, 861 N.E.2d 967 (2006) ("the label used by the legislature is not necessarily definitive" where it does not match the "substantive character" of the assessment).

¶ 33 In response to these issues appearing for the first time in appellate court briefs, some of our colleagues have found plain error to be inapplicable and have construed Caballero narrowly, to allow the appellate court to make ministerial corrections but not to permit that court to recharacterize as a fine an assessment improperly labeled as a fee. See, e.g. , Smith , 2018 IL App (1st) 151402, ¶¶ 4-6, 420 Ill.Dec. 543, 97 N.E.3d 117 ; People v. Christie , 2017 IL App (1st) 151512-U, ¶ 7, 2017 WL 6374572 ; People v. Brown , 2017 IL App (1st) 150203, ¶¶ 36, 40, 418 Ill.Dec. 31, 89 N.E.3d 865 ; Griffin , 2017 IL App (1st) 143800, ¶¶ 9, 24-25, 415 Ill.Dec. 241, 82 N.E.3d 186, appeal allowed , No. 122549, 419 Ill.Dec. 670, 93 N.E.3d 1087, 2017 WL 5641409 (Ill. Nov. 22, 2017). Indeed, the author of this opinion has been a signatory to multiple orders in which the court stated, in dicta , that an error in assessing fines and fees was not plain error. See, e.g. , People v. Kelley , 2017 IL App (1st) 150340-U, ¶¶ 35-36, 2017 WL 6614480 ; People v . Mitchell , 2017 IL App (1st) 141486-U, ¶ 40, 2017 WL 5473641.

¶ 34 However, as noted above, the reality is that the State often-although not always-opts not to object to the defendant raising these arguments for the first time on appeal. Thus, this court has also frequently gone on to address the merits of those issues, providing reductions and set-offs to the defendant when appropriate. See, e.g. , Smith , 2018 IL App (1st) 151402, ¶¶ 7, 17, 420 Ill.Dec. 543, 97 N.E.3d 117 ; Kelley , 2017 IL App (1st) 150340-U, ¶¶ 36, 43, 2017 WL 6614480 ; People v. Dillard , 2017 IL App (1st) 151432-U, ¶¶ 6, 13, 2017 WL 6521493 ; People v. Clark , 2017 IL App (1st) 150740-U, ¶¶ 18, 25, 2017 WL 2655615, appeal allowed , No. 122495, 417 Ill.Dec. 837, 89 N.E.3d 756, 2017 WL 4386970 (Ill. Sept. 27, 2017). In other words, not only are these issues often addressed regardless of a defendant's forfeiture, but the State, rather than the court, often determines whether a defendant even can seek relief on these assessments. While we fully agree with the view expressed by some of our colleagues that consideration of these issues in the first instance at the appellate level is neither desirable nor efficient, we do not agree that plain error is inapplicable or that our review of section 110-14 of the Code issues is limited to ministerial errors.

¶ 35 First, we address plain error. Our supreme court has made clear that there is no de minimus exception to a plain-error analysis. Lewis , 234 Ill. 2d at 48, 332 Ill.Dec. 334, 912 N.E.2d 1220 ; see also People v. Sebby , 2017 IL 119445, ¶ 69, 417 Ill.Dec. 756, 89 N.E.3d 675 ("Plain errors by definition are substantial."). In Lewis it stated, in no uncertain terms:

"[W]e do not believe a de minimus exception can be placed on plain-error review. The exception would be difficult to implement because it would require declaring when the dispute becomes significant rather than de minimus . The question would necessarily arise as to where the line should be drawn. More importantly, a de minimus exception is inconsistent with the fundamental fairness concerns of the plain-error doctrine. Plain-error review focuses on the fairness of a proceeding and the integrity of the judicial process. [Citations.] An error may involve a relatively small amount of money or unimportant matter, but still affect the integrity of the judicial process and the fairness of the proceeding if the controversy is determined in an arbitrary or unreasoned manner." Lewis , 234 Ill. 2d at 48, 332 Ill.Dec. 334, 912 N.E.2d 1220.

¶ 36 We find the supreme court's holding in Lewis to be applicable here. In Lewis , the defendant was sentenced to a term of probation and ordered to pay a $100 street-value fine for possession of a controlled substance. Id. at 34, 332 Ill.Dec. 334, 912 N.E.2d 1220. The defendant did not object to the fine before the trial court. Id. at 35, 332 Ill.Dec. 334, 912 N.E.2d 1220. His only argument on appeal was that the trial court committed plain error by imposing the $100 street-value fine with no evidentiary basis to determine the street value of the drugs at issue. Id. The appellate court refused to apply the plain-error doctrine, ruling that its application in that case would " 'essentially swallow[ ]' the general rule of forfeiture if it applied to a sentencing sanction as minimal as the $100 fine involved in this case." Id. at 36, 332 Ill.Dec. 334, 912 N.E.2d 1220 (quoting People v. Lewis , 379 Ill. App. 3d 336, 340-41, 318 Ill.Dec. 528, 883 N.E.2d 759 (2008) ).

¶ 37 On appeal, our supreme court noted that, prior to the appellate court's decision in Lewis , appellate courts had consistently held that imposition of a street-value fine without a sufficient evidentiary basis was plain error. id. at 47, 332 Ill.Dec. 334, 912 N.E.2d 1220. By declining to follow those other cases, the appellate court had "essentially adopted a de minimus exception for plain-error review." Id. As noted above, our supreme court emphatically rejected such an exception, finding plain error was applicable because the decision was "not based on applicable standards and evidence, but appear[ed] to be arbitrary." Id. at 48, 332 Ill.Dec. 334, 912 N.E.2d 1220.

¶ 38 We acknowledge that the situation in Lewis was, as the supreme court observed, "more than a simple mistake in setting the fine" and that, instead, it was "a failure to provide a fair process for determining the fine based on the current street value of the controlled substance." Id. But here, too, the issue is more than a "simple mistake in setting the fine." Mr. Mullen contends that the assessment against him of fees not subject to set-off was arbitrary and not authorized by law. We find that any distinction between this case and Lewis is one without a difference. We can and should review these legal errors in the assessments of fines and fees as plain error.

¶ 39 In addition to properly relying on plain error, we can also consider Mr. Mullen's claim that he was not given all of the presentence credit to which he is entitled as an application for presentence credit under section 110-14(a) of the Code.

¶ 40 In Caballero our supreme court interpreted that statute as allowing a defendant to argue that he was improperly denied a credit of $5 per day "at any time and any stage of the court proceedings" because any such argument should be viewed as "an application of the defendant" under the statute, which does not provide any specific time limitations. Caballero , 228 Ill. 2d at 88, 319 Ill.Dec. 364, 885 N.E.2d 1044. In Caballero , our supreme court held that defendant's request for presentence credit should be considered, despite the issue having been raised for the first time on appeal from the denial of a postconviction petition. Id. at 87-88, 319 Ill.Dec. 364, 885 N.E.2d 1044. The only caveat our supreme court added is that the basis for granting the application must be "clear and available from the record." Id. at 88, 319 Ill.Dec. 364, 885 N.E.2d 1044.

¶ 41 Some of our colleagues have recently held that Caballero is limited, drawing a distinction between permitting a defendant to "raise his claim" for a "ministerial" per diem credit calculation and making "substantive" arguments that the credit should have been, but was not, applied to certain assessments. Brown , 2017 IL App (1st) 150203, ¶¶ 36, 40, 418 Ill.Dec. 31, 89 N.E.3d 865 ; see also Smith , 2018 IL App (1st) 151402, ¶ 6, 420 Ill.Dec. 543, 97 N.E.3d 117 (following Brown ). But the court in Caballero stated that a defendant may bring a section 110-14 claim at "any" time and "any" stage of proceedings, requiring only that the error complained of is "clear and available from the record." Caballero , 228 Ill. 2d at 88, 319 Ill.Dec. 364, 885 N.E.2d 1044. We find nothing in Caballero or in section 110-14 that supports a distinction between ministerial and substantive section 110-14 claims. Thus, we could also consider Mr. Mullen's arguments that certain assessments were improperly treated as fees as an application for presentence incarceration credit, which may be raised at any time.

¶ 42 Because we find that Mr. Mullen's fines and fees claims are reviewable under both the plain-error doctrine and section 110-14, we need not consider whether his counsel was ineffective.

¶ 43 2. Specific Claims of Error

¶ 44 We turn now to the specific claims of error that Mr. Mullen raises as to assessments which are labeled as fees, but which he contends are actually fines. The parties agree on the correct categorization of some, but not all, of the assessments.

The State concedes that both the $15 state police operations "fee" and the $50 court systems "fee" should be treated as fines, to which Mr. Mullen is entitled to have his presentence incarceration credit applied. Mr. Mullen concedes in his reply brief that he is not entitled to a credit offset for the $25 court services assessment. This leaves four remaining assessments at issue: the public defender and state's attorney records automation assessments of $2 each, the $10 arrestee's medical costs assessment, and the $10 probation/court services assessment.

¶ 45 a. $2 Records Automation Assessments

¶ 46 The Counties Code entitles both the public defender and the state's attorney to an assessment of $2 "for establishing and maintaining automated record keeping systems." 55 ILCS 5/3-4012 (West 2014) (public defender's records automation assessment); id. § 4-2002.1(c) (state's attorney records automation assessment).

¶ 47 Mr. Mullen cites People v. Camacho , 2016 IL App (1st) 140604, ¶ 56, 407 Ill.Dec. 848, 64 N.E.3d 647, in which a division of this court found these assessments to be fines. But as even the Camacho court recognized, "every [other] published decision on this matter has determined that both the State's Attorney and public defender records automation assessments are fees." Id. ¶ 52 (citing People v. Maxey , 2016 IL App (1st) 130698, ¶¶ 142-44, 405 Ill.Dec. 41, 57 N.E.3d 726 ; People v. Reed , 2016 IL App (1st) 140498, ¶¶ 16-17, 400 Ill.Dec. 341, 48 N.E.3d 290; People v. Green , 2016 IL App (1st) 134011, ¶ 46, 402 Ill.Dec. 104, 51 N.E.3d 856 ; People v. Bowen , 2015 IL App (1st) 132046, ¶¶ 62-65, 395 Ill.Dec. 221, 38 N.E.3d 98 ; People v. Bradford , 2014 IL App (4th) 130288, ¶ 41, 386 Ill.Dec. 834, 21 N.E.3d 753, rev'd on other grounds , 2016 IL 118674, 401 Ill.Dec. 630, 50 N.E.3d 1112 ; and People v. Rogers , 2014 IL App (4th) 121088, ¶ 30, 383 Ill.Dec. 159, 13 N.E.3d 1280).

¶ 48 We agree with the bulk of authority that these assessments are properly categorized as fees because they are not intended to punish the defendant, but rather "are designed to compensate [the public defender and the state's attorney] for the expenses they incur in updating their automated record-keeping systems while prosecuting and defending criminal defendants." Brown , 2017 IL App (1st) 150146, ¶ 38, 414 Ill.Dec. 465, 80 N.E.3d 608. Accordingly, these assessments may not be offset by Mr. Mullen's presentence incarceration credit.

¶ 49 b. $10 Arrestee's Medical Costs Assessment

¶ 50 Section 17 of the County Jail Act provides that "[t]he county shall be entitled to a $10 fee for each conviction or order of supervision for a criminal violation * * *. * * * All such fees collected shall be deposited by the county in a fund to be established and known as the County Jail Medical Costs Fund." 730 ILCS 125/17 (West 2014). It further states that the assessment "shall not be considered a part of the fine for purposes of any reduction in the fine." Id.

¶ 51 Mr. Mullen argues that this assessment must be considered a fine entitled to offset, citing People v. Warren , 2016 IL App (4th) 120721-B, 404 Ill.Dec. 21, 55 N.E.3d 117. There, the Fourth District found the arrestee's medical costs assessment was a fine for the purpose of determining whether the clerk of the circuit court-as opposed to the circuit court itself-had the authority to impose the assessment (see People v. Fontana , 251 Ill. App. 3d 694, 709, 190 Ill.Dec. 863, 622 N.E.2d 893 (1993) ("the imposition of a fine is a judicial act which can be performed only by a judge") ).

Warren , 2016 IL App (4th) 120721-B, ¶¶ 89, 119, 404 Ill.Dec. 21, 55 N.E.3d 117. This district, however, has found the same assessment is a fee because the medical costs fund functions, in essence, as an insurance fund for medical costs incurred by prisoners. People v. Jones , 397 Ill. App. 3d 651, 664, 336 Ill.Dec. 912, 921 N.E.2d 768 (2009).

¶ 52 We need not resolve the apparent conflict in these two holdings. As the Fourth District recognized in Warren , the statute states that this assessment "shall not be considered a part of the fine for purposes of any reduction in the fine," which the court read as a reference to presentence incarceration credit under section 110-14. Thus, even if it were a fine, following the reasoning in Warren , it would not be subject to offset under section 110-14. We reject Mr. Mullen's claim for offset as to this assessment.

¶ 53 c. $10 Probation/Court Services Assessment

¶ 54 Section 27.3a(1.1) of the Clerks of Courts Act provides that the "clerk of the circuit court in any county that imposes a fee" under subsection 1 of that Act, to help defray the cost of establishing and maintaining automated record keeping systems in the offices of the clerks of the circuit court, "shall also charge and collect an additional $10 operations fee for probation and court services department operations." 705 ILCS 105/27.3a(1.1) (West 2014). The assessment "shall be paid by the defendant in any felony, traffic, misdemeanor, local ordinance, or conservation case upon a judgment of guilty or grant of supervision." Id. § 27.3a(1.1).

¶ 55 First, we note that the plain language of the statute itself gives the clerk of the circuit court authority to impose this assessment. Id. Because the clerk of the circuit court is not authorized to impose fines ( Fontana , 251 Ill. App. 3d at 709, 190 Ill.Dec. 863, 622 N.E.2d 893 ), the statute's language, alone, suggests that the legislature intended this assessment to be a fee.

¶ 56 While there does not appear to be published decisions determining whether this assessment is a fine or fee in this district, the Fourth District has consistently held that this assessment should be considered a fee where, as in this case, the probation office was involved in preparing a presentence investigation report for the defendant, making the assessment a fee to recover a cost actually incurred in the defendant's prosecution. Rogers , 2014 IL App (4th) 121088, ¶ 27, 383 Ill.Dec. 159, 13 N.E.3d 1280; People v. Staake , 2016 IL App (4th) 140638, ¶ 106, 413 Ill.Dec. 396, 78 N.E.3d 388 ; Bradford , 2014 IL App (4th) 130288, ¶¶ 38-40, 386 Ill.Dec. 834, 21 N.E.3d 753, rev'd on other grounds , 2016 IL 118674, 401 Ill.Dec. 630, 50 N.E.3d 1112. But see People v. Carter , 2016 IL App (3d) 140196, ¶¶ 56-57, 407 Ill.Dec. 22, 62 N.E.3d 267 (finding, contrary to the Fourth District cases, that the probation/court services assessment is a fine because the assessment is imposed regardless of whether the defendant used probation office services). We think the Fourth District cases provide a rational interpretation of the legislative intent that this is a fee. Mr. Mullen is thus not entitled to offset for this assessment.

¶ 57 d. Final Calculation of Credit Offset

¶ 58 As a final matter, Mr. Mullen also raises the concern that, although the fines and fees order states that an "[a]llowable credit towards a fine will be calculated," no such calculation appears in the order. This is frequently the case with fines and fees orders, and we are unsure whether the presence or absence of a calculation affects whether a defendant receives the necessary credit. But to ensure that, here, Mr. Mullen receives his due credit, we direct the clerk to modify the fines and fees order to reflect the $115 offset to be applied against the $469 that Mr. Mullen owes. This offset includes the $50 that the fines and fees order already recognizes are fines, plus the additional $65 in assessments that we have found in this opinion are fines. With this offset, the fines and fees order should reflect that the "total" amount Mr. Mullen owes is $354.

¶ 59 IV. CONCLUSION

¶ 60 We remand this cause for a hearing that fully complies with section 113-3.1(a) of the Code. We further direct the clerk of the circuit court to modify the fines, fees, and costs order to reflect his credit for presentence incarceration such that the total amount owed by Mr. Mullen, not offset by his presentence incarceration credit, is $354.

¶ 61 Remanded for hearing on reimbursement for the public defender; order assessing fines, fees, and costs modified.

Presiding Justice Pierce and Justice Harris concurred in the judgment and opinion.