text:
    IN RE G.V., a Minor,
    (The People of the State of Illinois, Petitioner-Appellee, v. Sarah N. and Vincente V., Respondents-Appellants).
    Nos. 3-18-0272 3-18-0274 (consolidated)
    Appellate Court of Illinois, Third District.
    Opinion filed October 5, 2018 Rehearing denied December 12, 2018
    Daniel J. Kallan, of Joliet, for appellant Sara N.
    Neil J. Adams, of Joliet, for appellant Vincente V.
    James W. Glasgow, State's Attorney, of Joliet (Patrick Delfino, David J. Robinson, and Thomas D. Arado, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    Kristen Messamore, of Hammel Law Offices, P.C., of Joliet, for the minor.
   JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 The trial court ordered G.V. a ward of the court and found respondents Sarah N. and Vincente V. unfit and that it was in the best interest of their child, G.V., that their parental rights be terminated. Both Sarah and Vincente appealed. We reverse and remand.

¶ 2 FACTS

¶ 3 The minor, G.V., was born on November 2, 2015, to respondent Sarah N. She named respondent Vincente V. as the child's father. Based on a hotline call, G.V. was taken immediately into the custody of the Department of Children and Family Services (DCFS). The call was made by a caseworker from a DCFS parallel agency in Connecticut, where Sarah had previously lived. The information DCFS received was that Sarah's two other children had been removed from her care, her oldest child lived with the child's father and Sarah's rights to the other child were in the process of being terminated by the Connecticut court. The information also included that Sarah's father, with whom she was living in Illinois, had lost his parental rights to her when she was a child due to physical and sexual abuse.

¶ 4 On November 9, 2015, the State filed a petition alleging that G.V. was neglected based on an injurious environment. 705 ILCS 405/2-3(1)(b) (West 2016). A shelter care hearing took place. Sarah appeared but Vincente did not. The sole witness was Latanya Hoskins, a DCFS investigator. She spoke with Sarah's caseworker in Connecticut who said that Sarah's children had been removed from her care and the State was proceeding with a termination case for the second child and that the first child was living with her father. The trial court found there was probable cause that G.V. was neglected based on an injurious environment. The trial court appointed a court appointed special advocate (CASA) and guardian ad litem (GAL) to represent G.V. Vincente appeared at a February 2016 hearing and stated that he filed a voluntary acknowledgement of paternity.

¶ 5 An adjudicatory hearing took place on May 4, 2016. The court noted that there was still no finding of paternity. Vincente stated his name was added to G.V.'s birth certificate but he left the document back home in Connecticut. The trial court ordered a deoxyribonucleic acid (DNA) test to determine G.V.'s paternity. The State presented Alexandra Bunker, the placement supervisor for DCFS, as its witness and submitted People's Exhibit No. 1, which was the DCFS investigatory report. Both Sarah and Vincente objected to admission of the report on the basis of foundation, maintaining that after the first three or four pages, the report was inadmissible hearsay. Sarah also objected on the basis the report was not a business record and could not be admitted under that hearsay exception. In response, the State characterized the entire report as an indicated report and argued its admissibility.

¶ 6 The trial court sustained the objection as to business records but found that the report was admissible as an indicated report. The trial court determined that the allegations of an injurious environment were supported by the State's exhibit and that G.V. was neglected. The court found Sarah's two other children were removed from her care in Connecticut and she did not complete services there so that her children could be returned to her. The court also found that Vincente had not established paternity. The court informed the parties that their compliance with the service plan tasks was now mandatory and urged Vincente to do the integrated assessment.

¶ 7 The court further instructed and admonished Sarah and Vincente as follows:

"This is the first part of the hearing. This Order right now that is going to be entered is not appealable. It is not appealable until we do the second part which is the dispositional part of the hearing or the dispositional hearing when it is decided whether or not [G.V.] should be made a ward of the Court. Now, that means that it's under my supervision. You are under my supervision on whether or not you are performing the services that are going to be put into the service plan.
At the point it's decided, if I were to decide that [G.V.] should be made a ward of the Court, at this point, the Order becomes appealable, and you can ask a higher Court whether or not my determination is well founded. Okay?
So at this point, this is just one part of the hearing.
* * *
Do you understand what my admonishment is that you're going to need to comply with the terms of the service plan that D.C.F.S. is going to put in place; otherwise, you risk termination of your parental rights?"

Both Sarah and Vincente acknowledged they understood the admonishment.

¶ 8 Sarah thereafter moved to reconsider the neglect finding, arguing the DCFS investigatory report should not have been admitted in whole and the State did not meet its burden of establishing neglect. Vincente did not join in her motion or file his own motion to reconsider. A hearing took place. Sarah conceded that pages one through four of the report constituted an indicated report but maintained the rest of the report was hearsay. The trial court considered that there was enough information in the first four pages to support the neglect finding and that no other contrary evidence was presented. The trial court denied the motion to reconsider.

¶ 9 A dispositional hearing took place on July 13, 2016. Vincente presented the amended birth certificate naming him as G.V.'s father but had not yet participated in the integrated assessment. Sarah had only contacted DCFS and participated in visitation. According to the State, Sarah refused to sign consent forms so DCFS could investigate what services she completed in Connecticut. The court noted that Sarah indicated she wanted to obtain the information herself. The court determined that Sarah failed to comply with her service tasks and that Vincente had failed to complete an integrated assessment or necessary consent forms and had not filed a paternity action. The trial court reiterated its previous finding that G.V. was neglected on the basis of an injurious environment and declared him a ward of the court.

¶ 10 The court admonished the parents as follows:

"But do you understand that you are going to need to comply with the service plan with participating in an integrated assessment to be assessed for services, and that if they require that you are going to need to do those, absent any appeals that you might take administratively or judicially, whatever, otherwise your son is going to remain in foster care until those services are well under way.
Otherwise, if you don't do the services that are required of you, then you risk the termination of your parental rights.
I am asking you if you understand that that is what you need to do?"

¶ 11 A November 2016 service plan indicated that Sarah had started some services but refused others and that Vincente maintained contact with DCFS but had not participated in an integrated assessment. Service plan reports dated March and May 2017 noted concerns about Sarah's mental health issues, cognitive limitations and history of domestic violence and expressed that she lacked the capacity to safely parent G.V. Vincente had participated in the integrated assessment but provided only limited information. He refused to name his wife or other children who lived with him. A May 2017 permanency review letter stated that Sarah has a future risk of becoming a victim or perpetrator of domestic violence and her children were at risk of exposure to domestic violence. The letter further stated that even with services, Sarah was not able to parent her children in Connecticut because of her mental health issues. Vincente had not yet undergone DNA testing or participated in the integrated assessment in a meaningful manner. Finally, the letter recommended the case proceed to legal screening.

¶ 12 At a June 1, 2017, hearing, the trial court vacated a parenting plan that had been entered by another judge in response to a custody petition filed by Vincente on May 31, 2017. The permanency review report indicated that the caseworker considered Sarah's progress unsatisfactory. CASA noted its concern regarding the case and its desire for the case to go to legal screening. The caseworker stated that because Vincente had not completed the integrated assessment, DCFS could not assess the viability of G.V. living with Vincente.

¶ 13 The State filed a motion to terminate Sarah's and Vincente's parental rights. The petition alleged Sarah and Vincente failed to maintain a reasonable degree of interest, concern or responsibility for G.V., failed to make reasonable efforts to correct the conditions that were the basis for G.V.'s removal, during the time period May 4, 2016, through February 28, 2017, and failed to make reasonable progress toward G.V.'s return within nine months after the neglect adjudication, such period being May 4, 2016, through February 28, 2017.

¶ 14 A trial took place on the petition in April 2018. The State presented Theresa Bruns, the caseworker beginning in August 2016. She testified Vincente refused to answer a variety of questions on the integrated assessment, maintaining that he had a constitutional right not to answer the questions and that he was being profiled. She was on bereavement leave from December 2016 to January 2017 and on medical leave from September 2017 to January 2018.

¶ 15 Following the State's case, both Sarah and Vincente moved for directed verdicts on the failure to maintain a reasonable degree of interest, concern and responsibility as to G.V.'s welfare allegation. Sarah also moved for a directed verdict on the failure to make reasonable efforts allegation and Vincente moved for a directed verdict on the failure to make reasonable progress allegation. The court granted the motion as to Sarah's and Vincente's reasonable interest allegations and denied it as to the other allegations. It never ruled on the lack of reasonable concern allegation.

¶ 16 David Klemm, a psychologist with One Hope United who had treated Sarah from December 2016 to April 2018, testified that she had made significant progress in counseling. He explained that in all other instances where DCFS required a psychiatric assessment it would ask him for a letter to the caseworker recommending the assessment. There was no request regarding Sarah. Tyler Reynolds, an Easter Seals home visitor/parent educator testified that Sarah had made significant improvement in her parenting skills but still had room for greater improvement.

¶ 17 Sarah testified. She did not need domestic violence counseling and she was unable to find transportation to attend. She repeatedly asked her caseworkers for transportation assistance, but they did not provide it. She would have attended if she had a ride. She did not have a psychiatric assessment because she thought it was the same as the mental health assessment she did have done. The first time she was aware they were different assessments was in November 2017, but there was no further discussion about it.

¶ 18 Vincente testified. He lived in Connecticut, where he worked as a taxi driver. He had had several video visitations with G.V. and four in-person visits. He filed a custody petition. After the integrated assessment, he was not advised of any more services he needed to complete. G.V. could have gone home with him and he was ready to bring G.V. home. His family agreed with his decision. Vincente's exhibit No. 1, the voluntary acknowledgement of paternity, was admitted into evidence.

¶ 19 The State called Bruns as a rebuttal witness, who testified that Sarah never indicated she lacked transportation to domestic violence counseling and if she had asked, DCFS would have provided it. At the close of evidence, Vincente renewed his motion for directed verdict, which the trial court denied.

¶ 20 The court entered an order on May 2, 2018, finding both parents unfit. The court found Sarah failed to maintain a reasonable degree of responsibility as to G.V.'s welfare as indicated by her refusal to participate in domestic violence counseling or have a psychiatric assessment. She also failed to find a job, lived with her father whose parental rights had been terminated, and relied on him for support. The court found Sarah failed to make reasonable efforts to correct the conditions that resulted in G.V.'s removal, including refusing to participate in domestic violence counseling despite her history of domestic violence or in the psychiatric assessment despite her admitted diagnoses of multiple mental illnesses. Lastly, the court found Sarah failed to make reasonable progress toward the return of G.V. to her care, pointing to Sarah's failure to complete her service tasks and her unsatisfactory progress toward G.V.'s return. It pointed to her lack of stable, suitable housing and employment as well as the fact that visitation continued to be supervised.

¶ 21 The trial court found Vincente unfit on the basis of his failure to maintain a reasonable degree of responsibility for G.V. and to make reasonable progress to G.V.'s return home. The court noted that as for responsibility, Vincente did not attend the shelter care or reshelter care hearings. He failed to complete the integrated assessment, and DCFS was unable to verify whether Vincente's home was suitable for G.V. As to reasonable progress, Vincente did not execute a voluntary acknowledgement of paternity until March 31, 2016 and did not amend the birth certificate until April 2016. He filed a custody petition in April 2017, which was outside the period at issue. His visitation remained supervised throughout the pendency of the proceedings.

¶ 22 A best interest hearing took place and the trial court found that it was in G.V.'s best interest to terminate Sarah's and Vincente's parental rights. The court entered an order terminating Sarah's and Vincente's rights. Both Sarah and Vincente appealed.

¶ 23 ANALYSIS

¶ 24 There are several issues in this consolidated appeal. Both Sarah and Vincente argue the trial court failed to admonish them of their appeal rights after it made G.V. a ward of the court. Sarah argues that the court erred in terminating her parental rights and relied on improper hearsay in reaching its conclusion. Vincente argues that the court erred in finding him dispositionally unfit.

¶ 25 We begin with Sarah's argument that the trial court relied on inadmissible hearsay in ultimately terminating her parental rights. Although Vincente objected at the adjudicatory hearing, he did not join Sarah in her motion to reconsider the trial court's admission of the investigatory report or raise the issue on appeal and has forfeited it. See In re S.H. , 2014 IL App (3d) 140500, ¶ 21, 387 Ill.Dec. 588, 22 N.E.3d 1241 (issues not raised are forfeited). Nevertheless, because the trial court's findings affect Vincente's fundamental right to parent, we will apply plain-error review and consider this issue as to him as well as Sarah. See id. (termination of parental rights affects fundamental liberty interest).

¶ 26 Sarah complains the court reached its conclusion by relying on impermissible hearsay contained in the DCFS investigatory report, the exhibit used at the adjudicatory hearing on May 4, 2016. The report stated that Sarah's other children were removed from her care by the State of Connecticut and that she failed to comply with services in Connecticut. The report included the conclusion of the Connecticut agency, which determined that Sarah lacked adequate parenting skills even with services. It also provided information on Sarah's circumstances, including that her father lost his parental rights to her when she was a toddler due to physical and sexual abuse based on information from the Connecticut agency.

¶ 27 The trial court overruled Sarah's and Vincente's objections to the evidence, finding that it was admissible as an indicated report. We disagree, consider it to be inadmissible hearsay and find the trial court erred in admitting it at the adjudicatory hearing.

¶ 28 Hearsay is " 'a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' " In re Charles W. , 2014 IL App (1st) 131281, ¶ 35, 379 Ill.Dec. 322, 6 N.E.3d 399 (quoting Ill. R. Evid. 801(c) (eff. Jan. 1, 2011) ). The rules of evidence apply to adjudicatory hearings. 705 ILCS 405/2-18(1) (West 2016). Although hearsay may be admitted at the dispositional hearing, it is inadmissible at the adjudicatory hearing unless it falls under an exception under the Juvenile Court Act of 1987. In re Brooks , 63 Ill. App. 3d 328, 341, 20 Ill.Dec. 39, 379 N.E.2d 872 (1978). We review de novo whether something qualifies as hearsay and whether a document is an indicated report. In re M.F. , 304 Ill. App. 3d 236, 241, 237 Ill.Dec. 889, 710 N.E.2d 519 (1999) ; In re J.C. , 2012 IL App (4th) 110861, ¶ 19, 359 Ill.Dec. 132, 966 N.E.2d 453.

¶ 29 An indicated report filed pursuant to the Abused and Neglected Child Reporting Act ( 325 ILCS 5/1 et seq. (West 2016) ) is admissible at an adjudicatory hearing. 705 ILCS 405/2-18(4)(b) (West 2016). An indicated report shall include " 'any other information that the person filing the report believes might be helpful in establishing the cause of such abuse or neglect and the identity of the person believed to have caused such abuse or neglect.' " In re J.C. , 2012 IL App (4th) 110861, ¶ 21, 359 Ill.Dec. 132, 966 N.E.2d 453 (quoting 325 ILCS 5/7 (West 2010) ). A report should include, as is possible, information regarding " 'any previous incidents of suspected child abuse or neglect.' " Id.

(quoting 89 Ill. Adm. Code 300.40(c) (2012) ). Information received by DCFS through a hotline call may be admitted to show why an investigation began, but it is not sufficient to prove the truth of the allegations. In re Wheeler , 86 Ill. App. 3d 564, 569, 42 Ill.Dec. 46, 408 N.E.2d 424 (1980).

¶ 30 The investigatory report that was admitted as an indicated report under the statutory hearsay exception contained substantial amounts of information that was unverified and lacked any supporting documentation. Even the first several pages, which the court found were sufficient in themselves to support the neglect finding, contained information based on unsubstantiated hearsay. The narrative offered that Sarah was involved in an open case in Connecticut, which had removed her two children from her care. A petition to terminate parental rights was pending. Sarah fled to Illinois to avoid the removal of her third child, G.V., and resided with her father. The narrative further stated that according to Sarah, her father's parental rights were terminated when she was a child based on physical and sexual abuse. The Connecticut source did not know if he was indicated, convicted or registered for sexual abuse incidents. The narrative included concerns of the Connecticut agency that Sarah had severe mental health issues, cognitive limitations and a history of domestic violence and the agency's conclusion that Sarah lacked the capacity to safely parent a newborn.

¶ 31 The DCFS representative at the adjudicatory hearing testified that the exhibit was a true and accurate copy of the investigative report and qualified as an indicated report. She provided no other foundation or did not explain whether DCFS had received the files from the Connecticut agency or was relying on the phone conversations between caseworkers. The DCFS witness, Bunker, was a placement supervisor who was familiar with the case file but had not participated in the investigation. The investigators did not testify. There was no detailed explanation of the Connecticut findings or certified copy of them. There was no explanation of the services with which Sarah was required to comply in Connecticut and her progress in the service tasks. In essence, we have the placement supervisor testifying to information that the investigators discovered while in phone conversations with an unnamed caseworker at an unnamed agency in Connecticut. The record before us does not include and we are unaware whether the investigators had any supporting records, such as the Connecticut agency file or court documents.

¶ 32 We do not imply that the information DCFS provided at the adjudicatory hearing was inaccurate or misleading. Our concern is that the information was provided and accepted without any verified basis in the record. The witness's characterization of the report as an indicated report does not make it one. An indicated report is to include information helpful to establish neglect and the person responsible for it and also include information regarding previous incidents of abuse. We do not interpret the definition to allow hearsay and in this case, double and triple hearsay to be admitted solely on the basis that the information is part of a report characterized as an indicated report by DCFS. See In re A.B. , 308 Ill. App. 3d 227, 237, 241 Ill.Dec. 487, 719 N.E.2d 348 (1999) (finding service plans inadmissible where they were based on the witness's "secondhand knowledge, at best, of the events that lead to the conclusions contained in the service plans"). Similarly, the DCFS report was not admissible under general statutory exceptions concerning hearsay. See Ill. R. Evid. 803 (eff. April 26, 2012) (listing hearsay exceptions), Ill. R. Evid. 902 (eff. Jan.

1, 2011) (allowing specified self-authenticating report to be admitted although comprised of hearsay).

¶ 33 In People v. Brady , 7 Ill. App. 3d 404, 407, 287 N.E.2d 537 (1972), the issue was whether DCFS departmental reports were admissible at a joint adjudicatory and dispositional hearing. Like the instant case, the court relied on agency reports prepared by a caseworker and a record of agency contacts made with the family. Id. The court determined the reports were admissible under the business records exception, although the reports included opinions that were not factually based and were hearsay. Id. The reviewing court acknowledged that much of the information was "gleaned from third party sources, [was] a distillation of the file, and [was], of course, conclusory and rank hearsay." Id. Noting the trial court was bound by the rules of evidence in civil cases, the reviewing court found the reports inadmissible in the adjudicatory hearing. Id.

¶ 34 In discussing the admissibility of the reports, the Brady court referenced the parents' due process rights to the care and custody of their children. Id. This concern guides us in reaching our disposition here. A parent has a fundamental due process right to the care, custody, and control of his or her children. In re Andrea F. , 208 Ill. 2d 148, 165, 280 Ill.Dec. 531, 802 N.E.2d 782 (2003). In termination proceedings, due process is "achieved by compliance with the provisions of the Juvenile Court Act and fundamental fairness." In re O.S. , 364 Ill. App. 3d 628, 638, 302 Ill.Dec. 130, 848 N.E.2d 130 (2006). We find the admission into evidence of the investigatory report as an indicated report did not comply with the Juvenile Court Act and deprived Sarah and Vincente of due process. The proper remedy is to vacate all orders entered on and after the May 4, 2016, adjudicatory hearing and begin anew with the wardship proceedings.

¶ 35 The next issue for our consideration is whether the trial court erred in finding Vincente dispositionally unfit. He maintains that the neglect finding was based on Sarah's conduct regarding her other children who were involved with the Connecticut courts and that the State did not present any evidence that he would be unable to properly parent G.V. We lack jurisdiction to consider this issue.

¶ 36 A party must appeal a final judgment within 30 days after entry of the final order from which the appeal is taken, or, if a postjudgment motion is filed, within 30 days after the court disposes of the final postjudgment motion. Ill. S.Ct. R. 303(a)(1) (eff. Jan. 1, 2015). Dispositional orders in juvenile court proceedings are generally final and appealable. In re Alexander R. , 377 Ill. App. 3d 553, 555, 317 Ill.Dec. 24, 880 N.E.2d 1016 (2007). A reviewing court lacks jurisdiction over an untimely appeal. In re C.S. , 294 Ill. App. 3d 780, 787, 229 Ill.Dec. 225, 691 N.E.2d 161 (1998).

¶ 37 The unfitness finding was entered at the adjudicatory hearing in July 2016. It was a final and appealable order which Vincente failed to timely appeal. We further find that even if Vincente had been properly admonished, an appeal would not have altered the finding. Although there was no evidence he was responsible for the injurious environment necessitating the neglect finding, the trial court had little information to indicate that Vincente could properly care for G.V. He had not participated in an integrated assessment or filed for custody and was an unfit parent in the eyes of the court.

¶ 38 Because of our disposition on these issues, we do not reach the other issues raised on appeal. We note, however, that the trial court was required to admonish Sarah and Vincente at the dispositional hearing of their right to appeal. The Juvenile Court Act requires that if a child is found neglected and declared a ward of the court, the trial court must admonish the parents they must cooperate with DCFS, comply with the service plans, and correct the conditions that necessitated the child to be in the State's care or risk the termination of their parental rights. 705 ILCS 405/1-5(3) (West 2016). The court must also inform the parties of their appeal rights regarding the wardship order and any other final judgments. Id. On remand, proper admonishments should be provided Sarah and Vincente at the dispositional and other hearings as statutorily required.

¶ 39 CONCLUSION

¶ 40 For the foregoing reasons, the judgment of the circuit court of Will County is reversed and the cause remanded for proceedings consistent with this opinion.

¶ 41 Reversed and remanded.

Presiding Justice Carter and Justice Lytton concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph L. NIFFEN, Defendant-Appellant.
    NOS. 4-15-0881 4-15-0882 cons.
    Appellate Court of Illinois, Fourth District.
    FILED October 31, 2018
    James E. Chadd, Jacqueline L. Bullard, and Zachary A. Rosen, of State Appellate Defender's Office, of Springfield, for appellant.
    Gary L. Farha, State's Attorney, of Quincy (Patrick Delfino, David J. Robinson, and Kathy Shepard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE CAVANAGH delivered the judgment of the court, with opinion.

¶ 1 Defendant, Joseph L. Niffen, is serving a total of 39½ years' imprisonment for unlawful possession of a methamphetamine precursor ( 720 ILCS 646/20(a)(2)(E) (West 2012) ) and anhydrous ammonia ( 720 ILCS 646/25(a)(1) (West 2010) ). He appeals the summary dismissal of his pro se petition for postconviction relief (see 725 ILCS 5/122-2.1(a) (West 2014) ). In addition, in his brief, he challenges the imposition of fines by the Adams County circuit clerk and the clerk's retention of $1901 of his bond money to cover those purported fines. We find arguable merit in one of the claims of his petition, but we lack subject-matter jurisdiction to review the clerk-imposed fines or the retention of the bond money. Therefore, we merely reverse the summary dismissal and remand this case for further postconviction proceedings.

¶ 2 I. BACKGROUND

¶ 3 On July 19, 2012, defendant entered a negotiated guilty plea to one count of unlawful possession of a methamphetamine precursor ( 720 ILCS 646/20(a)(2)(E) (West 2012) ) in Adams County case No. 12-CF-175 and one count of unlawful possession of anhydrous ammonia ( 720 ILCS 646/25(a)(1) (West 2010) ) in Adams County case No. 11-CF-648. The trial court sentenced him to consecutive terms of 15 years' imprisonment for the methamphetamine precursor and 24½ years' imprisonment for the anhydrous ammonia.

¶ 4 The written sentencing order also included the following: (1) "Court Costs, VCVA [ (Violent Crime Victims Assistance) ], and Penalties," with no listed monetary denominations; (2) a "Crime Lab fee of $100.00" in both cases; (3) an "Assessment (per Cannabis/Controlled Substances Act) of $3000/$1000"; (4) $100 for "Meth"; (5) $5 for "Spinal Cord"; and (6) $1325 restitution.

¶ 5 Also, in "Payment Status Information" sheets in both cases, the circuit clerk imposed the following assessments: $50 for "Court," $100 for "Violent Crime," $10 for "Medical Costs," $10 for "Lump Sum Surcharge," $15 for "Child Advocacy Fee," and $5 for "State Police Ops."

¶ 6 Defendant never filed a motion to withdraw his guilty pleas. Nor did he take a direct appeal.

¶ 7 On July 13, 2015, defendant filed a pro se petition for postconviction relief. One of his claims was that on approximately July 26, 2012, he wrote defense counsel a letter requesting that he file a motion to withdraw his guilty pleas. (As we already have noted, no such motion ever was filed.) In a "Sworn Affidavit," which was attached to his petition, defendant stated:

"1. That while housed at the Graham Correctional Center I sent a letter to my retain [sic ] counsel requesting that he fil[e] a [m]otion to withdraw my plea. That in the body of my letter I complained about the length of a sentence I had received[,] telling my [a]ttorney that I would have one foot in the graveyard by the time I was released from prison. That also I told my [a]ttorney that the factual basis information was inaccurate and[,] based upon my prior guilty pleas[,] I thought it would be grounds for withdrawing my plea."

¶ 8 On October 2, 2015, by written order, the trial court summarily dismissed the postconviction petition. The court reasoned: "The * * * issue concerning counsel's failure to file a timely motion to withdraw the guilty plea is without merit because [defendant] could have filed the motion pro se and been appointed counsel. Further, the motion[,] even if filed[,] would have been without merit."

¶ 9 II. ANALYSIS

¶ 10 A. The Three Stages of a Postconviction Proceeding

¶ 11 The Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 to 122-7 (West 2014) ) provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial.

People v. Edwards , 197 Ill. 2d 239, 243-44, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001). In a noncapital case, the Act contemplates that a postconviction proceeding will advance through as many as three stages to determine whether such a constitutional violation occurred. Id. at 244, 258 Ill.Dec. 753, 757 N.E.2d 442.

¶ 12 At the first stage, the trial court independently reviews the postconviction petition and decides, within 90 days after its filing, whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2014). If the court decides that the petition is frivolous or patently without merit-or, in other words, that it lacks any "arguable basis either in law or in fact" ( People v. Hodges , 234 Ill. 2d 1, 17, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009) )-the court will summarily dismiss the petition in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2014). That is what the court did in the present case.

¶ 13 If, within 90 days after the filing of the petition, the trial court does not summarily dismiss it, the petition will advance to the second stage. Defense counsel will be appointed, if necessary (see 725 ILCS 5/122-4 (West 2014) ), and the State will move to dismiss the petition, or else the State will answer it (see id. § 122-5). The question at the second stage is "whether the petition and any accompanying documentation make a substantial showing of a constitutional violation." Edwards , 197 Ill. 2d at 246, 258 Ill.Dec. 753, 757 N.E.2d 442. In answering that question, the trial court takes as true "all well-pleaded facts that are not positively rebutted by the trial record." People v. Pendleton , 223 Ill. 2d 458, 473, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). If no showing of a substantial constitutional violation is made, the court dismisses the petition. Edwards , 197 Ill. 2d at 246, 258 Ill.Dec. 753, 757 N.E.2d 442.

¶ 14 Alternatively, if the petition and its attached documentation make a substantial showing of a constitutional violation, the petition will advance to the third stage for an evidentiary hearing. Id. At the third stage, the petition and its accompanying documentation no longer are taken to be true. Instead, the court resolves any questions of fact and determines credibility, as in a bench trial. Pendleton , 223 Ill. 2d at 473, 308 Ill.Dec. 434, 861 N.E.2d 999. The defendant bears the evidentiary burden of making a substantial showing of a constitutional violation. Id.

¶ 15 B. The First-Stage Issue of Whether Defendant's Pro Se Petition Is Frivolous or Patently Without Merit

¶ 16 In his petition for postconviction relief, defendant claimed that defense counsel rendered ineffective assistance by ignoring a letter from him in which he requested defense counsel to file a motion to withdraw his guilty pleas. For two reasons, the trial court concluded that this claim lacked any potential merit. First, defendant "could have filed the motion pro se and been appointed counsel." Second, "the motion[,] even if filed[,] would have been without merit." The State agrees with defendant, and so do we, that those two reasons are inconsistent with Edwards , 197 Ill. 2d 239, 258 Ill.Dec. 753, 757 N.E.2d 442.

¶ 17 In Edwards , the defendant alleged in his pro se postconviction petition that, soon after pleading guilty, he requested defense counsel to file an appeal and that defense counsel failed to do so. Id. at 242, 258 Ill.Dec. 753, 757 N.E.2d 442. Because it would have been impossible to pursue an appeal without first filing a motion to withdraw the guilty plea (see Ill. S. Ct. R. 604(d) (eff. Aug. 1, 1992) ), the petition was construed as additionally criticizing defense counsel for failing to file a motion to withdraw the guilty plea ( Edwards , 197 Ill. 2d at 242, 258 Ill.Dec. 753, 757 N.E.2d 442 ). The trial court summarily dismissed the petition because it stated no grounds for withdrawing the guilty plea and, therefore, failed to show that the defendant suffered any prejudice from defense counsel's allegedly deficient performance. Id. The supreme court overturned the summary dismissal because no attorney had ever reviewed the plea proceedings for error and it would have been unreasonable to require the pro se defendant to perform such a review and provide legal grounds for withdrawing his guilty plea. Id. at 257, 258 Ill.Dec. 753, 757 N.E.2d 442. Until an attorney was appointed, who would "be able to consult with [the] defendant regarding his claim and explore in more detail the factual and legal ramifications of [the] claim," it was premature "to conclude that [the] defendant's claim of ineffective assistance of counsel [was] so completely lacking in substance that it [was] frivolous or patently without merit." Id.

¶ 18 If, in Edwards , a defendant who accused his defense counsel of ignoring his request to file a motion to withdraw his guilty plea did not have to provide, at the first stage of the postconviction proceeding, any grounds for withdrawing his guilty plea, it must follow that the same defendant, earlier, in the original proceeding, did not have to file a pro se motion to withdraw his guilty plea, since such a motion would have had to provide grounds for withdrawing his guilty plea (see Ill. S. Ct. R. 604(d) (eff. Aug. 1, 1992) ). Therefore, contrary to the trial court's rationale in the present case, the fact that defendant never filed a pro se motion to withdraw his guilty pleas did not invalidate his claim that defense counsel rendered ineffective assistance by disregarding his request to file a motion to withdraw his guilty pleas.

¶ 19 It would have been, after all, understandable if defendant had relied on defense counsel to comply with his request and had refrained from filing such a motion himself, since we prohibit defendants from filing pro se motions while they are represented by counsel, except posttrial motions alleging ineffective assistance, and we instruct trial courts to reject such attempts at "hybrid representation." People v. Stevenson , 2011 IL App (1st) 093413, ¶ 30, 355 Ill.Dec. 857, 960 N.E.2d 739. (Presumably, defendant did not intend to ask his defense counsel to argue his own ineffective assistance.) By accepting the trial court's rationale, we would penalize defendant for complying with our own prohibition.

¶ 20 Although, as the State concedes, the trial court's reasons for rejecting this claim at the first stage were erroneous, the State reminds us that we should review the summary dismissal de novo , without any deference to the court's reasoning, and that if we can find in the record any valid basis for the summary dismissal, we should affirm it. See Edwards , 197 Ill. 2d at 247, 258 Ill.Dec. 753, 757 N.E.2d 442 ; People v. Relwani , 2018 IL App (3d) 170201, ¶ 20, 421 Ill.Dec. 152, 99 N.E.3d 152, appeal allowed , No. 123385, 420 Ill.Dec. 737 98 N.E.3d 41 (May 30, 2018). The State argues the petition deserved to be summarily dismissed for noncompliance with section 122-2 of the Act ( 725 ILCS 5/122-2 (West 2016) ). Section 122-2 required that the petition "have attached thereto affidavits, records, or other evidence supporting its allegations or * * * state why the same [were] not attached." Id. Although defendant attached to his pro se petition an "affidavit," in which he averred that he had sent defense counsel a letter requesting that he file a motion to withdraw his guilty pleas, and although the lack of a notarization on the "affidavit" did not make the petition frivolous or patently without merit (see People v. Allen , 2015 IL 113135, ¶ 34, 392 Ill.Dec. 307, 32 N.E.3d 615 ), the State disputes that that the "affidavit" satisfied section 122-2. The State argues that to satisfy section 122-2, defendant additionally had to attach to his petition a copy of the letter he claimed to have sent to defense counsel or that, alternatively, he had to explain why a copy of the letter was not attached. In support of its argument, the State cites People v. Delton , 227 Ill. 2d 247, 317 Ill.Dec. 636, 882 N.E.2d 516 (2008), and People v. Anderson , 287 Ill. App. 3d 1023, 223 Ill.Dec. 666, 680 N.E.2d 399 (1997). Actually, neither of those cases supports the State's argument.

¶ 21 In Delton , the defendant was serving a sentence of imprisonment for the aggravated battery of some police officers. Delton , 227 Ill. 2d at 249, 317 Ill.Dec. 636, 882 N.E.2d 516. He claimed, in his pro se postconviction petition, that his trial counsel had rendered ineffective assistance by failing to investigate his allegation that the police officers had been harassing him for a long time, thereby causing him, during the traffic stop in question, to reasonably believe he needed to defend himself from physical aggression by them. Id. at 251, 317 Ill.Dec. 636, 882 N.E.2d 516. The defendant attached to his petition excerpts from the transcript of his trial-and nothing else. Id. at 255-57, 317 Ill.Dec. 636, 882 N.E.2d 516. He did not attach his own affidavit. Id. at 257, 317 Ill.Dec. 636, 882 N.E.2d 516. The excerpts from the transcript, standing alone, had no tendency to corroborate the allegation, in his pro se petition, that he told trial counsel before the trial that the police officers had been harassing him. Id. The problem in Delton was that the trial transcript was the only thing attached to the defendant's petition and the transcript, by its terms, corroborated nothing. The supreme court never suggested that an affidavit by the defendant, if he had provided one, would have been insufficient as corroboration.

¶ 22 The defendant in Delton argued to the supreme court that it was readily inferable why his petition lacked corroborative documentation: a subpoena was necessary to obtain police disciplinary records. Id. While agreeing that a subpoena was necessary to obtain such records, the supreme court pointed out that this was no excuse for the defendant because he himself was the one who had made the complaint against the police officers. Id. at 257-58, 317 Ill.Dec. 636, 882 N.E.2d 516. "Because [the defendant] filed the charges, he could easily have supported his petition with a copy of the complaint he filed against [the police officers] or with the specifics about the filing of that complaint if, in fact, he had filed one." (Emphasis added.) Id. at 258, 317 Ill.Dec. 636, 882 N.E.2d 516. Thus, according to the supreme court, "the specifics about the filing of that complaint"-meaning, apparently, an affidavit by the defendant setting forth the specifics-would have served just as well as "a copy of the complaint." Id.

¶ 23 In Anderson , the defendant alleged in his pro se postconviction petition that about three weeks after pleading guilty, he sent his attorney a letter stating he wanted to withdraw his guilty plea and that counsel never replied. Anderson , 287 Ill. App. 3d at 1026, 223 Ill.Dec. 666, 680 N.E.2d 399. "No affidavits or supporting documents were attached to the petition." Id. We do not see anywhere in Anderson where the First District stated that the corroborative documentation had to be a copy of the letter that the defendant allegedly had sent to defense counsel. Rather, the First District stated that the petition "lack[ed] any supporting documents, such as the alleged letter written by [the] defendant."

(Emphases added.) Id. at 1032, 223 Ill.Dec. 666, 680 N.E.2d 399. By observing that "the instant defendant did not attach any affidavits or any supporting documents to his petition," the First District seemed to imply that an affidavit by the defendant would have sufficed. (Emphasis added.) Id.

¶ 24 In the present case, not only in his petition but also in his affidavit, defendant describes the substance of his letter to defense counsel, and he states he sent the letter to defense counsel and that defense counsel never responded. The State objects that the petition and the affidavit lack an indispensable supporting document: a copy of the letter. But the purpose of supporting documentation pursuant to section 122-2 is to "show[ ] that the verified allegations [of the petition] are capable of objective or independent corroboration." People v. Collins , 202 Ill. 2d 59, 67, 270 Ill.Dec. 1, 782 N.E.2d 195 (2002). A purported copy of the letter would not have served that purpose. It would have been just another writing by defendant, like his petition and his affidavit. A purported copy of the letter would not have been "objective or independent corroboration" that he actually sent the letter to defense counsel and that defense counsel received it. Id. Only defense counsel could corroborate that he received the letter. See People v. Rogers , 372 Ill. App. 3d 859, 867, 310 Ill.Dec. 654, 866 N.E.2d 1256 (2007) ("Here, it can easily be inferred that [the] defendant could not attach her correspondence to the petition because any correspondence would have been in the possession of her attorney and thus not readily available to [the] defendant."). Therefore, we are unconvinced by the State's argument that the corroboration requirement in section 122-2 justified the first-stage rejection of defendant's claim that defense counsel rendered ineffective assistance by disregarding his request to file a motion to withdraw his guilty pleas.

¶ 25 Because the Act does not permit the partial summary dismissal of a postconviction petition, we need not address defendant's additional claim that defense counsel rendered ineffective assistance by representing him while under a conflict of interest. See People v. Romero , 2015 IL App (1st) 140205, ¶ 27, 394 Ill.Dec. 390, 36 N.E.3d 323 ("If a single claim in a multiple-claim postconviction petition survives the summary dismissal stage * * *, then the entire petition must be docketed for second-stage proceedings[,] regardless of the merits of the remaining claims in the petition."); People v. White , 2014 IL App (1st) 130007, ¶ 33, 388 Ill.Dec. 250, 24 N.E.3d 158 ("We have no need to address any of the other claims in the petition because partial summary dismissals are not permitted during the first stage of a postconviction proceeding.").

¶ 26 C. Clerk-Imposed Fines and Bond Money

¶ 27 Defendant complains of fines that the circuit clerk, as distinct from the trial court, imposed upon him in the "Payment Status Information." Although a circuit clerk can have statutory authority to impose fees, a circuit clerk never has authority to impose fines because a circuit clerk is not a judge and imposing fines as part of a sentence is exclusively a judicial act. People v. Smith , 2014 IL App (4th) 121118, ¶ 18, 385 Ill.Dec. 367, 18 N.E.3d 912.

¶ 28 The trouble is, the supreme court recently held as follows:

"The appellate court is constitutionally vested with jurisdiction to review final judgments entered by circuit courts. The recording of a fine is a clerical, ministerial function and is not a judgment-void or otherwise. Therefore, the improper recording of a fine is not subject to direct review by the appellate court." People v. Vara , 2018 IL 121823, ¶ 23, 425 Ill.Dec 498, 115 N.E.3d 53.

In short, the "Payment Status Information" is not part of the trial court's judgment. Therefore, we lack jurisdiction to review it. See id. And, in fact, appellate defense counsel candidly admits as much in a supplemental brief, which he filed after the issuance of Vara ("If Vara is not modified or changed upon rehearing, then the State's position that this court lacks jurisdiction to vacate fines that were improperly imposed by the circuit court clerk would be correct.")

¶ 29 Even so, defendant argues, "a sentencing court's improper delegation of authority to the clerk to [impose a fine]-purporting to give the clerk authority he or she does not have-is an issue that may still be challenged." In this context, defendant refers to the trial court's imposing upon him a violent crime victims assessment in an unspecified amount and leaving it to the circuit clerk to specify the amount. But this issue has nothing to do with the judgment that defendant appeals. He appeals the summary dismissal of his postconviction petition, which contains no mention of the violent crime victims assessment. "A notice of appeal confers jurisdiction on the reviewing court to consider only the judgments or pertinent parts specified in the notice." People v. Patrick , 2011 IL 111666, ¶ 21, 355 Ill.Dec. 943, 960 N.E.2d 1114 ; see also People v. Smith , 228 Ill. 2d 95, 104, 319 Ill.Dec. 373, 885 N.E.2d 1053 (2008). Because the violent crime victims assessment and the retention of defendant's bond money are extraneous to the summary dismissal order, which defendant specifies in his notice of appeal, we lack subject-matter jurisdiction to consider those issues. See Patrick , 2011 IL 111666, ¶ 21, 355 Ill.Dec. 943, 960 N.E.2d 1114 ; Smith , 228 Ill. 2d at 104, 319 Ill.Dec. 373, 885 N.E.2d 1053.

¶ 30 III. CONCLUSION

¶ 31 For the foregoing reasons, we reverse the trial court's judgment and remand this case for further proceedings.

¶ 32 Reversed and remanded.

Justices DeArmond and Turner concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher T. WESTFALL, Defendant-Appellant.
    NO. 4-15-0997
    Appellate Court of Illinois, Fourth District.
    Filed November 8, 2018 Rehearing denied November 30, 2018
    James E. Chadd, Jacqueline L. Bullard, and Salome Kiwara-Wilson, of State Appellate Defender's Office, of Springfield, for appellant.
    John C. Milhiser, State's Attorney, of Springfield (Patrick Delfino, David J. Robinson, and Linda Susan McClain, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In March 2013, the State charged defendant, Christopher T. Westfall, with two counts of criminal sexual assault. 720 ILCS 5/11-1.20(a)(1) (West 2012). The conduct alleged was the following: mouth to vagina (count I) and penis to vagina (count II). The alleged victim was K.W., defendant's estranged wife.

¶ 2 In October 2014, defense counsel filed a motion for mental examination to determine defendant's fitness to stand trial. The trial court granted defense counsel's motion. The court did not conduct a fitness hearing once the results of the mental examination were communicated to the court.

¶ 3 In June 2015, the State filed a motion in limine to exclude any reference to K.W.'s mental health at trial. In July 2015, the trial court granted the State's motion. In August 2015, the court modified its ruling so that defendant could cross-examine K.W. on her use of the medication Abilify.

¶ 4 In August 2015, the trial court began defendant's jury trial by conducting voir dire , during which the court discussed the Zehr principles. See People v. Zehr , 103 Ill. 2d 472, 477, 83 Ill.Dec. 128, 469 N.E.2d 1062, 1064 (1984). The jury found defendant guilty of both counts of criminal sexual assault. In November 2015, the court sentenced defendant to eight years in prison on each count and ordered the sentences to be served consecutively. The court also ordered the circuit clerk to impose "all mandatory fines and fees that must be imposed" and granted the State's request for restitution to be paid to Prairie Center Against Sexual Assault for counseling K.W. had received.

¶ 5 Defendant appeals, arguing (1) the trial court erred because it failed to conduct a fitness hearing after finding that there was a bona fide doubt as to defendant's fitness to stand trial, (2) he received ineffective assistance of counsel, (3) the trial court failed to properly question two jurors on the relevant Zehr principles, and (4) the trial court improperly entered a civil judgment. We affirm.

¶ 6 I. BACKGROUND

¶ 7 A. Proceedings Regarding Defendant's Fitness to Stand Trial

¶ 8 In October 2014, defense counsel filed a motion for a mental examination of defendant to determine his fitness to stand trial. In that motion, counsel requested that the trial court appoint a psychiatrist to examine defendant and to render an opinion as to whether defendant was fit to stand trial. See 725 ILCS 5/104-11(b) (West 2014).

¶ 9 In November 2014, when the trial court conducted a hearing on this motion, defense counsel informed the court that he had "bona fide doubts" about defendant's ability to assist in his own defense. Counsel stated that, in preparing for trial, he "learned that [defendant] had prior mental health treatment." At that hearing, defendant acknowledged that he had received treatment from mental health professionals 10 years earlier but argued he was fit to stand trial because he was discharged from treatment. The court granted defense counsel's motion and ordered that defendant "be evaluated by Terry M. Killian, M.D. for a mental examination to determine his fitness to stand trial."

¶ 10 In February 2015, the trial court conducted a status hearing at which the following exchange took place:

"THE COURT: What is the status of the evaluation, counsel?
[ (DEFENSE COUNSEL) ]: Judge, the evaluation I have [sic ]; but, unfortunately, I didn't bring it with me. [Defendant] is fit. Doctor Killian did [the mental examination to determine fitness]. I have it in my file."
THE COURT: All right. So, we removed any doubt as to the [defendant's] fitness."

¶ 11 In his report, Killian concluded defendant was fit to stand trial within a reasonable degree of psychiatric certainty. Killian noted that defendant demonstrated an adequate understanding of the nature and purpose of the proceedings against him and that he appeared to be able to assist in his defense.

¶ 12 B. The Mental Health of K.W.

¶ 13 In June 2015, the State filed a motion in limine to exclude any reference to K.W.'s mental health, which stated the following:

"During the discovery process in the instant case, a police report from 2006 was tendered to the Defendant. In that police report, K.W. reported that the same Defendant committed a sexual assault against her. Further in the report, there is reference to her mental health. She informed investigators that she suffered from schizophrenia, depression, and [bipolar] disorder. This is the only evidence referencing K.W.'s mental health history possessed by either the State or the Defendant. The mental health history of K.W. is irrelevant to the current charges of criminal sexual assault and should be barred during trial."

¶ 14 In August 2015, the trial court conducted a hearing on the State's motion in limine , at which the State argued that it was up to defendant to show the relevance in 2012 (when the alleged sexual assault occurred) of concerns about K.W.'s mental health in 2006. Defendant suggested that K.W.'s mental health and the medications she was taking were relevant to her ability to perceive the alleged sexual assault. Defense counsel also informed the court that defendant told him that defendant had taken K.W. to mental health centers on multiple occasions because she had been having significant mental health problems. The State argued that defendant failed to demonstrate that K.W.'s mental health had any effect on her ability to perceive the alleged attack.

¶ 15 The trial court granted the State's motion but stated that it would allow defendant an opportunity to examine K.W. about her mental health outside the presence of the jury to establish relevance. If defendant could establish relevance, the court would reconsider its ruling.

¶ 16 In August 2015, immediately prior to trial, the trial court gave defendant an opportunity to examine K.W. outside the presence of the jury about her mental health. Defendant offered to stipulate that K.W. was taking Depakote, Compazine, Lexapro, and Abilify to treat schizophrenia, bipolar disorder, and anxiety. After the State refused this stipulation, the court ruled that defendant would have to prove relevance through K.W.'s testimony out of the jury's presence.

¶ 17 K.W., who was 42 years old at the time of trial, then testified that she was diagnosed with schizophrenia, bipolar disorder, and anxiety when she was 17 years old. K.W. stated that she was prescribed Depakote, Abilify, and Lexapro. She noted that the Abilify was to help her sleep at night and that it may have affected her ability to stay awake. K.W. denied that the Depakote and Lexapro affected her ability to perceive events. K.W. stated that she has no memory or perception problems.

¶ 18 Based upon this testimony, the trial court ruled that defendant could cross-examine K.W. on her use of Abilify and how it may have affected her ability to perceive events. However, the court excluded cross-examination regarding her mental health and her use of other prescription drugs.

¶ 19 C. Jury Selection

¶ 20 Jury selection for defendant's trial began in August 2015. Illinois Supreme Court Rule 431(b), which codified the principles established in Zehr , 103 Ill. 2d at 477, 83 Ill.Dec. 128, 469 N.E.2d 1062, requires a trial court to ask all potential jurors whether they understand and accept that (1) the defendant is presumed innocent, (2) the State bears the burden of proving the defendant guilty beyond a reasonable doubt, (3) the defendant has no obligation to present evidence, and (4) the defendant's choice to not testify cannot be held against him. Ill. S. Ct. R. 431(b) (eff. July 1, 2012). During jury selection, the court did not ask one of the jurors about the Zehr principles and did not ask another juror whether he accepted that the State has the burden of proving defendant guilty beyond a reasonable doubt.

¶ 21 D. The Jury Trial

¶ 22 1. The Alleged Attack

¶ 23 K.W. testified that on July 26, 2012, at approximately 1 a.m., she was arguing with defendant over the phone. K.W. noted that she was married to defendant but they had been living separately since 2011. K.W. stated that defendant asked to come over to her house, and she agreed so that they could talk in person. Defendant arrived at her home at approximately 1:45 a.m.

¶ 24 Upon arriving at her home, defendant continued to argue with K.W. After a while, they stopped arguing and simply watched television together on the sofa. Defendant was drinking alcohol and eventually fell asleep. K.W. later fell asleep as well.

¶ 25 K.W. awoke when defendant grabbed her pants and began wrestling with her. K.W. ultimately ended up on the floor. As they struggled, she told defendant to stop and that she was on her period. She testified that defendant responded by telling her to shut up and then bit her on her left hip and bit her vagina. K.W. started screaming and continued to struggle, and defendant later put his penis inside her vagina and had sex with her. K.W. passed out during this encounter. K.W. also testified that defendant "shoved [his hand] inside her," cutting her vagina. As a result of that and his biting her, she had two different cuts in her vagina.

¶ 26 K.W. woke up the next morning to find defendant asleep on the couch. She found a hammer and chased him out of her house. K.W. eventually called defendant's mother to discuss what happened. Around 2 p.m., she called the police to report the sexual assault. After the police arrived, she was taken to the hospital for a sexual assault evaluation.

¶ 27 2. The Investigation and Interrogation Video

¶ 28 Kate Figueira, a police officer with the city of Springfield, testified that she was dispatched to a reported sexual assault on July 26, 2012, at approximately 3 p.m. She noted that officers had already arrived at K.W.'s residence but K.W. had requested a female officer. Although Figueira stated that K.W. claimed that defendant had sexually assaulted her, Figueira did not see any injuries to K.W.'s neck or face. Figueira stated that K.W. was visibly upset and was later taken to the hospital for a sexual assault evaluation.

¶ 29 Holly O'Neal, a nurse at St. John's Hospital, testified that she performed a sexual assault evaluation on K.W. During this process, O'Neal collected physical evidence found on K.W. and on K.W.'s menstrual pad. O'Neal stated that K.W. was erratic during the evaluation. O'Neal testified that K.W. had a small laceration on her labia but, on cross-examination, conceded that the injury could have been accidentally self-inflicted. O'Neal testified that she did not notice any abrasions or bruises on K.W.'s face and there were no bite marks on K.W.'s hip.

¶ 30 Joshua Stuenkel, a police officer with the city of Springfield, was assigned to investigate the alleged sexual assault. In September 2012, Stuenkel and detective Rick Dhabalt interrogated defendant and took a DNA sample from him. The video of defendant's interrogation was played for the jury.

¶ 31 On the interrogation video, defendant stated that he was married to K.W. but that they were separated. Defendant initially stated that he had not been at K.W.'s residence for at least six months and that he had not had sex with K.W. in about six months. He later stated that he had been to K.W.'s house approximately a month earlier to talk with her. Defendant explained that because K.W. was acting funny, he left her home without incident. Defendant went on to admit that there "was starting to be a dispute, then I was just trying to kiss up on her a little bit[.]" Defendant stated that he only kissed her on the mouth and that they did not have sex. Defendant later admitted to "kissing all over her" but stated that he did not kiss her below the waist. The following exchange later took place:

"DHABALT: [T]here's some injuries to her body as well, um, you know that if it happened the way you told it, it wouldn't be possible. Specifically a bite inside of her vagina. Any chance that came from you?
DEFENDANT: No[,] I licked on it a little bit but that wasn't, I figure that wasn't nothing.
STUENKEL: Okay[,] I mean cause now we've gotten to another progression, because a minute ago [there was] nothing below the waist. Nothing below the waist, remember? That's what you said. And I asked you.
DEFENDANT: That's at the waist, well, I guess.
STUENKEL: I mean[,] that's below the waist. Um, and now you licked on her a little bit. Did, did you maybe bite her?
DEFENDANT: Nope.
STUENKEL: Any penetration with your fingers?
DEFENDANT: No, just rubbed a little bit.
STUENKEL: Little rubbing? Did she find that uncomfortable?
DEFENDANT: (shaking head no) Nuh huh.
STUENKEL: She never yelled, never screamed, never told you to stop?
DEFENDANT: (shaking head no) Nope.
DHABALT: You never had intercourse with her?
DEFENDANT: Well, if you consider me giving tongue or kissing on a body.
DHABALT: No, that's not intercourse, intercourse is the penis inside the vagina. You never did that?
DEFENDANT: (shaking head no).
* * *
DHABALT: No? Didn't have that? And you didn't stick your finger in her?
DEFENDANT: No, I stuck my finger in her but I didn't you know what I'm saying, like you don't see me just grab her or nothing.
STUENKEL: I didn't say you grabbed her.
DEFENDANT: Oh.
* * *
DEFENDANT: I didn't bite her.
STUENKEL: And you never had sex with her?
DEFENDANT: Nope[,] just licked a little stuff like that.
* * *
STUENKEL: Well I'll tell you * * * [she] goes to the hospital, they do a kit, a kit involves them taking swabs from her body, photographs, um collecting clothing, and they recover semen from her. Okay? Is that gonna be yours?
DEFENDANT: Um[,] I doubt it, I don't know.
STUENKEL: Did you have sex with her?
DEFENDANT: (shaking head no).
STUENKEL: Then how is your semen gonna be in [her]?
DEFENDANT: I don't know, shit, I mean past times that I've had sex with her.
* * *
STUENKEL: That, if it's there, that's what you're saying it's from, it's from the previous contact when she was living with you at least six months ago?
DEFENDANT: Probably."

¶ 32 3. The DNA Evidence

¶ 33 Jennifer Acosta-Talbot, a DNA analyst for the Illinois State Police, testified that she received K.W.'s sexual assault kit and discovered bodily fluids on K.W.'s menstrual pad. She used three tests to determine the source of the fluids. The first test, an acid phosphate test, showed a positive result for semen. The second test, known as a P-30 test, demonstrated that "[s]emen is indicated on the stains on the pad." The third test consisted of viewing the sample under a microscope, and Acosta-Talbot testified that she did not observe sperm cells under the microscope. Defense counsel did not cross-examine Acosta-Talbot.

¶ 34 Karri Broaddus, a forensic scientist for the Illinois State Police, testified that she performed a DNA analysis on the body fluids found on the menstrual pad. Broaddus testified that a male DNA profile existed from which defendant could not be excluded. Broaddus testified that only 1 in 61 trillion blacks, 1 in 280 trillion whites, and 1 in 160 trillion Hispanics would not be excluded as the contributor of the male DNA found on K.W.'s menstrual pad. Defense counsel did not cross-examine Broaddus.

¶ 35 4. The Defense Case

¶ 36 Defendant elected not to testify, and the defense presented no evidence.

¶ 37 5. Closing Arguments

¶ 38 During closing argument, relying especially upon the DNA evidence and the interrogation video, the State argued that it had proved defendant guilty beyond a reasonable doubt. Defense counsel, however, argued that the State had failed to prove defendant guilty because the physical evidence was so weak. Counsel highlighted that K.W. did not have any bruises or other visible signs of an altercation. Counsel also pointed out that the small laceration on K.W.'s labia could have been self-inflicted. Counsel also highlighted the timeline discrepancy of the alleged attack, which supposedly occurred at approximately 2 a.m. yet K.W. failed to report the crime until approximately 2 p.m.

¶ 39 Defense counsel also attacked the probative value of the interrogation video, arguing as follows:

"And then we had the showing of [defendant's] statement. I would suggest to you that [defendant] was naïve, unsophisticated, probably felt scared and maybe wasn't too smart[.] * * * Now, he could have exercised his right to remain silent and [asserted his] Miranda [rights]. But, better yet, he could have just told them the truth. They gave him every opportunity to say it was consensual. * * * That's exactly what it was. * * * So, * * * remember the circumstances upon which [his statement] was given. This isn't a college educated high IQ guy who has experience in these matters. This is a gentleman who is inexperienced, who's put in an environment where he made all kinds of mistakes. All kinds. But that doesn't make him a rapist. That doesn't make him guilty of attacking his wife."

¶ 40 Defense counsel concluded his argument by asserting that defendant and K.W. had consensual sexual relations, arguing as follows:

"The conclusion to this case is this, and this is supported by the physical evidence and by much of the testimony[.] [Defendant] went over by invitation at 2 * * * in the morning to his wife's house. They visited. They talked. One thing led to another[.] [T]hey had consensual sexual relations that [were] not forced. He left. She became upset. It didn't go the way that she wanted. She called the police. And the State's problem is, again, where is the physical evidence to support what happened? This is not a case of rape."

¶ 41 6. The Jury's Question and Verdict

¶ 42 After jury deliberations began, the jury sent a note to the trial court that read "[w]hich test came back positive for semen? Or was the [p]ositive sample just of bodily fluids?" The court, without objection from either the State or defendant, instructed the jury that this question was a factual determination for it to decide. Ultimately, the jury found defendant guilty of both counts of sexual assault.

¶ 43 E. The Motion for a New Trial and Sentencing

¶ 44 In August 2015, defendant filed a motion to a new trial, arguing (1) the trial court erred by barring cross-examination on K.W.'s use of Depakote and Lexapro and (2) the State failed to prove defendant guilty beyond a reasonable doubt. In November 2015, the trial court denied the motion for a new trial, sentenced defendant to eight years in prison on each count of criminal sexual assault, and ordered those sentences to be served consecutively. The court also ordered the circuit clerk to impose "all mandatory fines and fees that must be imposed."

¶ 45 The State, by oral motion, requested that "a civil judgment be entered in the amount of $6,800 to benefit the Prairie Center Against Sexual Assault for the counseling that [K.W.] has received[.]" The trial court granted this request, concluding that "[t]he State's request for restitution by way of a civil judgment in the amount of $6,800 * * * will be granted and will be a part of the judgment and sentence imposed in this case." Defendant filed a motion to reconsider in December 2015, in which defendant argued only that the court should reconsider the length of his prison sentence. Later that month, the court denied the motion to reconsider.

¶ 46 This appeal followed.

¶ 47 II. ANALYSIS

¶ 48 Defendant appeals, arguing (1) the trial court erred because it failed to conduct a fitness hearing after finding that there was a bona fide doubt as to defendant's fitness to stand trial, (2) he received ineffective assistance of counsel, (3) the trial court failed to properly question two jurors on the relevant Zehr principles, and (4) the trial court improperly entered a civil judgment. We address these issues in turn.

¶ 49 A. Defendant's Fitness

¶ 50 Defendant first argues that the trial court erred because it failed to conduct a fitness hearing after it found that there was a bona fide doubt as to defendant's fitness to stand trial. We disagree, concluding that the trial court never found that a bona fide doubt existed. Accordingly, the trial court was not required to conduct a fitness hearing.

¶ 51 1. The Applicable Law

¶ 52 The due process clause prohibits the prosecution of a defendant who is unfit to stand trial. People v. Gillon , 2016 IL App (4th) 140801, ¶ 20, 409 Ill.Dec. 834, 68 N.E.3d 942. A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and purposes of the proceedings against him or to assist in his defense. 725 ILCS 5/104-10 (West 2012). A defendant is presumed to be fit. Id. In relevant part, section 104-11 of the Code of Criminal Procedure of 1963 (Code) states as follows:

"(a) The issue of the defendant's fitness for trial, to plead, or to be sentenced may be raised by the defense, the State or the Court at any appropriate time before a plea is entered or before, during, or after trial. When a bona fide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further.
(b) Upon request of the defendant that a qualified expert be appointed to examine him or her to determine prior to trial if a bona fide doubt as to his or her fitness to stand trial may be raised, the court, in its discretion, may order an appropriate examination. However, no order entered pursuant to this subsection shall prevent further proceedings in the case." Id. § 104-11(a), (b).

¶ 53 In People v. Hanson , 212 Ill. 2d 212, 222, 288 Ill.Dec. 114, 817 N.E.2d 472, 477 (2004), the supreme court concluded that "[t]he mere act of granting a defendant's motion for a fitness examination cannot, by itself, be construed as a definitive showing that the trial court found a bona fide doubt of the defendant's fitness." The supreme court further concluded that "if after the [fitness] examination the trial court finds no bona fide doubt, [then] no further hearings on the issue of fitness would be necessary." Id. at 217, 288 Ill.Dec. 114, 817 N.E.2d 472.

¶ 54 A bona fide doubt exists when the facts raise a real, substantial, and legitimate doubt regarding a defendant's mental capacity to meaningfully participate in his defense. People v. Washington , 2016 IL App (1st) 131198, ¶ 72, 407 Ill.Dec. 650, 64 N.E.3d 28. Relevant factors that the trial court may consider in assessing whether a bona fide doubt exists include (1) the defendant's behavior and demeanor, (2) prior medical opinions regarding the defendant's competence, and (3) defense counsel's representations about the defendant's competence. People v. Rosado , 2016 IL App (1st) 140826, ¶ 31, 406 Ill.Dec. 864, 61 N.E.3d 1132. If the trial court concludes that no bona fide doubt exists, then it need not conduct a fitness hearing. Hanson , 212 Ill. 2d at 217, 288 Ill.Dec. 114, 817 N.E.2d 472. Whether a bona fide doubt exists is an objective and fact-specific inquiry left to the discretion of the trial court. People v. Garcia , 2012 IL App (1st) 103590, ¶ 123, 367 Ill.Dec. 297, 981 N.E.2d 1025. A trial court abuses its discretion when its ruling is arbitrary, fanciful, unreasonable, or when no reasonable person would take the view adopted by the trial court. People v. Etherton , 2017 IL App (5th) 140427, ¶ 26, 415 Ill.Dec. 489, 82 N.E.3d 693.

¶ 55 2. This Case

¶ 56 In this case, defense counsel filed a motion for a mental examination of defendant to determine his fitness to stand trial. Although counsel did not cite to a specific statute, his motion mirrored the language of section 104-11(b) of the Code. See 725 ILCS 5/104-11(b) (West 2014). The trial court granted defense counsel's motion and ordered that defendant be evaluated "for a mental examination to determine his fitness to stand trial." In so ordering, the court did not cite to a specific statute, but the language of its order again mirrored the language of section 104-11(b). See id. Significantly, the court never made an explicit finding that there was a bona fide doubt regarding defendant's fitness to stand trial. See id. § 104-11(a). The absence of such a finding no doubt explains why the court did not conduct a fitness hearing once the results of the mental examination were communicated to the court.

¶ 57 Defendant argues that the trial court erred because it failed to conduct a fitness hearing after it found that there was a bona fide doubt as to defendant's fitness to stand trial. We disagree. First, the trial court merely granted defense counsel's motion for a fitness examination. Granting this motion cannot, by itself, be construed as a definitive showing that the trial court found a bona fide doubt as to defendant's fitness. Hanson , 212 Ill. 2d at 222, 288 Ill.Dec. 114, 817 N.E.2d 472. Second, the court never made a finding that it had a bona fide doubt regarding defendant's fitness. Third, based on the record in this case, we conclude that the trial court did not abuse its discretion in failing to find that a bona fide doubt existed regarding defendant's fitness. Accordingly, the trial court was not required to conduct a fitness hearing. Id. at 217, 817 N.E.2d 472, 477, 288 Ill.Dec. 114.

¶ 58 B. Ineffective Assistance of Counsel

¶ 59 Defendant next argues he received ineffective assistance of counsel because defense counsel (1) failed to cross-examine the State's expert witnesses on the strength of the DNA evidence and (2) was unable to cross-examine K.W. regarding her mental health and some of her prescription drug use. We disagree.

¶ 60 1. The Applicable Law

¶ 61 The sixth amendment guarantees a defendant the right to effective assistance of counsel at all critical stages of a criminal proceeding. People v. Beasley , 2017 IL App (4th) 150291, ¶ 26, 416 Ill.Dec. 701, 85 N.E.3d 568. To establish a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was (1) deficient and (2) prejudicial. People v. Thomas , 2017 IL App (4th) 150815, ¶ 10, 419 Ill.Dec. 545, 93 N.E.3d 664.

¶ 62 To establish deficient performance, a defendant must demonstrate that his attorney's performance fell below an objective standard of reasonableness. Id. Judicial review of counsel's performance is highly deferential. People v. McGath , 2017 IL App (4th) 150608, ¶ 38, 416 Ill.Dec. 173, 83 N.E.3d 671. A defendant must overcome the strong presumption that the challenged action or inaction may have been the product of sound trial strategy.

People v. Manning , 241 Ill. 2d 319, 327, 350 Ill.Dec. 262, 948 N.E.2d 542, 547 (2011). The decision of whether and how to conduct a cross-examination is generally a matter of trial strategy. People v. Jackson , 2018 IL App (1st) 150487, ¶ 26, 423 Ill.Dec. 588, 105 N.E.3d 996. Strategic choices are virtually unchallengeable. Manning , 241 Ill. 2d at 333, 350 Ill.Dec. 262, 948 N.E.2d 542.

¶ 63 To establish prejudice, the defendant must show that, but for counsel's errors, a reasonable probability exists that the result of the proceeding would have been different. People v. Houston , 229 Ill. 2d 1, 4, 321 Ill.Dec. 702, 890 N.E.2d 424, 426 (2008). A reasonable probability is defined as a probability which undermines confidence in the outcome of the trial. Id.

¶ 64 Failure to satisfy either prong negates a claim of ineffective assistance of counsel. People v. Fellers , 2016 IL App (4th) 140486, ¶ 23, 413 Ill.Dec. 187, 77 N.E.3d 994. When a claim of ineffective assistance of counsel was not raised at the trial court, our review is de novo . People v. Lofton , 2015 IL App (2d) 130135, ¶ 24, 397 Ill.Dec. 639, 42 N.E.3d 885.

¶ 65 2. This Case

¶ 66 Defendant first argues that defense counsel should have cross-examined the State's expert witnesses regarding the strength of the DNA evidence. Defendant highlights that Acosta-Talbot, a DNA analyst for the Illinois State Police, testified that she did not observe sperm cells under the microscope. Further, as evidenced by the jury's note to the trial court, defendant highlights that the jury was apparently confused about the DNA evidence. However, in this case, K.W. and defendant were an estranged married couple, and K.W. had invited defendant over to her home in the middle of the night. Rather than attack the strength of the DNA evidence, defense counsel argued that defendant had consensual sexual relations with K.W. Under the facts of this case, this was an entirely reasonable trial strategy that is virtually unchallengeable on appeal. Manning , 241 Ill. 2d at 333, 350 Ill.Dec. 262, 948 N.E.2d 542.

¶ 67 Defendant next argues that defense counsel was deficient because he was unable to cross-examine K.W. regarding her mental health and some of her prescription drug use. In this case, counsel unsuccessfully argued against the State's motion in limine . However, counsel later examined K.W. outside the presence of the jury in an attempt to establish the relevance of her mental health and prescription drug use. As a result, defense counsel persuaded the trial court to modify its prior grant of the State's motion in limine to allow cross-examination of K.W.'s use of Abilify and how this may have affected her ability to perceive events. We conclude that counsel provided effective assistance regarding K.W.'s mental health and her prescription drug use. Accordingly, because defendant fails to prove deficient performance, his claim of ineffective assistance of counsel fails. Fellers , 2016 IL App (4th) 140486, ¶ 23, 413 Ill.Dec. 187, 77 N.E.3d 994.

¶ 68 C. The Zehr Principles

¶ 69 Defendant next argues the trial court committed reversible error when it failed to properly question two jurors as required under Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Defendant concedes that he forfeited this argument but argues he can prevail under the first prong of the plain-error doctrine. We disagree.

¶ 70 1. The Applicable Law

¶ 71 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), which codified the Zehr principles, requires a trial judge to ask all potential jurors whether they understand and accept that (1) the defendant is presumed innocent, (2) the State bears the burden of proving the defendant guilty beyond a reasonable doubt, (3) the defendant has no obligation to present evidence, and (4) the defendant's choice to not testify cannot be held against him.

¶ 72 To preserve an alleged error for appeal, a defendant must object at trial and file a written posttrial motion. People v. Colyar , 2013 IL 111835, ¶ 27, 374 Ill.Dec. 880, 996 N.E.2d 575. Failure to do either results in forfeiture. People v. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675.

¶ 73 The plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider an unpreserved error when (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence. People v. Ely , 2018 IL App (4th) 150906, ¶ 15, 421 Ill.Dec. 322, 99 N.E.3d 566.

¶ 74 The usual first step under either prong of the plain-error doctrine is to determine whether there was an error at all. People v. Matthews , 2017 IL App (4th) 150911, ¶ 17, 419 Ill.Dec. 478, 93 N.E.3d 597. When a defendant claims first-prong error, he must prove that an error occurred and that the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him. Id. ¶ 26. When determining whether the evidence is closely balanced, a reviewing court must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of it within the context of the case. Sebby , 2017 IL 119445, ¶ 53, 417 Ill.Dec. 756, 89 N.E.3d 675. The evidence is closely balanced if "the outcome of this case turned on how the finder of fact resolved a 'contest of credibility.' " Id. ¶ 63 (quoting People v. Naylor , 229 Ill. 2d 584, 606-07, 323 Ill.Dec. 381, 893 N.E.2d 653, 667 (2008) ). A "contest of credibility" exists when (1) both sides presented a plausible version of events and (2) there is no extrinsic evidence to corroborate or contradict either version. Id. ¶¶ 60-63. If the defendant meets his burden under the first prong, he has demonstrated actual prejudice, and his conviction should be reversed. Id. ¶ 51. The second-prong of the plain-error doctrine is not available for a Rule 431(b) violation unless there is evidence that the violation produced a biased jury. Id. ¶ 52.

¶ 75 The defendant bears the burden of persuasion at all times under the plain error doctrine. People v. Suggs , 2016 IL App (2d) 140040, ¶ 61, 405 Ill.Dec. 163, 57 N.E.3d 1261. If the defendant fails to meet his burden, the issue is forfeited, and the reviewing court will honor the procedural default. People v. Ahlers , 402 Ill. App. 3d 726, 734, 342 Ill.Dec. 66, 931 N.E.2d 1249, 1255 (2010).

¶ 76 2. This Case

¶ 77 Defendant argues the trial court failed to admonish the jury as required under Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). During jury selection, the court did not ask one of the jurors about the Zehr principles and did not ask another juror whether he accepted that the State has the burden of proving defendant guilty beyond a reasonable doubt. Thus, defendant is correct that the court erred by not complying with Rule 431(b).

¶ 78 We reiterate that Rule 431(b)"ensures that members of the jury understand and accept the bedrock principles of Anglo-American criminal law. Failing to comply with Rule 431(b) could threaten the integrity of the jury's verdict or, at the very minimum, cast doubt on any guilty verdict a jury might return."

People v. McGuire , 2017 IL App (4th) 150695, ¶ 35, 419 Ill.Dec. 83, 92 N.E.3d 494. A trial court must instruct the jury pursuant to Rule 431(b) and must not deviate in any way from the precise language chosen by the Illinois Supreme Court. Id.

¶ 79 Defendant contends that the evidence was closely balanced on his conviction for aggravated criminal sexual assault (mouth to vagina) but concedes that the evidence was not closely balanced for his conviction for aggravated criminal sexual assault (penis to vagina).

¶ 80 Nonetheless, defendant's argument fails because the evidence was not closely balanced on his conviction for aggravated criminal sexual assault (mouth to vagina). During the interrogation video, defendant contradicts himself numerous times. Defendant initially states that he was never at K.W.'s house during the night of the alleged assault. He later admits to going to her house but claims to have only kissed her. Defendant later admits to "kissing all over her" but states that he did not kiss her below the waist. Still later, defendant admits to placing his mouth on her vagina but claims that he did not bite her. The nurse who examined K.W., however, testified that she observed a scratch on K.W.'s labia. Defendant also claims that he did not have sex with K.W., but according to the testimony of the State's witnesses, his semen was found on K.W.'s menstrual pad.

¶ 81 The version of events defendant argues on appeal was contradicted by his own statements to the investigating officers and the physical evidence. Therefore, unlike in Sebby , 2017 IL 119445, ¶¶ 60-63, 417 Ill.Dec. 756, 89 N.E.3d 675, defendant fails to demonstrate that the evidence was closely balanced. Accordingly, the issue of the trial court's failure to comply with Rule 431 is forfeited, and we honor defendant's procedural default. Ahlers , 402 Ill. App. 3d at 734, 342 Ill.Dec. 66, 931 N.E.2d 1249.

¶ 82 D. Civil Judgment

¶ 83 Last, defendant argues that the trial court erred when it granted the State's request for restitution for the benefit of the Prairie Center Against Sexual Assault. First, defendant argues that this was an improper civil judgment instead of restitution. Second, assuming it was restitution, defendant argues that the trial court should have taken into consideration defendant's ability to pay and set a payment schedule.

¶ 84 Section 5-5-6 of the Unified Code of Corrections (Unified Code) authorizes trial courts to order restitution to victims of crime "and any other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant." 730 ILCS 5/5-5-6(b) (West 2014). In People v. Strebin , 209 Ill. App. 3d 1078, 1085, 154 Ill.Dec. 420, 568 N.E.2d 420, 424-25 (1991), this court reasoned that agencies providing counseling services can be awarded restitution under section 5-5-6(b) of the Unified Code.

¶ 85 Section 5-4.5-50(d) of the Unified Code requires a defendant to challenge "the correctness of a sentence or to any aspect of the sentencing hearing * * * [in] a written motion filed with the circuit court clerk within 30 days following the imposition of sentence." 730 ILCS 5/5-4.5-50(d) (West 2014). If a defendant fails to include an argument in the motion, the issue is forfeited. People v. Tyus , 2011 IL App (4th) 100168, ¶¶ 85, 355 Ill.Dec. 742, 960 N.E.2d 624. A reviewing court will not review a forfeited sentencing issue, such as restitution, unless the error is sufficiently grave that it deprived the defendant of a fair sentencing hearing or it affected the defendant's substantial rights.

People v. Hanson , 2014 IL App (4th) 130330, ¶ 40, 388 Ill.Dec. 718, 25 N.E.3d 1. "[I]t is not a sufficient argument for plain error review to simply state that because sentencing affects the defendant's fundamental right to liberty, any error committed at that stage is reviewable as plain error." People v. Rathbone , 345 Ill. App. 3d 305, 311, 280 Ill.Dec. 408, 802 N.E.2d 333, 338 (2003).

¶ 86 In this case, the State requested that "a civil judgment be entered in the amount of $6,800 to benefit the Prairie Center Against Sexual Assault for the counseling that [K.W.] has received[.]" The trial court granted this request, concluding that "[t]he State's request for restitution by way of a civil judgment in the amount of $6,800 * * * will be granted and will be a part of the judgment and sentence imposed in this case." Defendant filed a motion to reconsider in which defendant argued only that the court should reconsider the length of his prison sentence.

¶ 87 We first conclude that the trial court granted restitution under the Unified Code rather than an improper civil judgment. 730 ILCS 5/5-5-6(b) (West 2016); Strebin , 209 Ill. App. 3d at 1085, 154 Ill.Dec. 420, 568 N.E.2d 420. Second, although the trial court should have assessed defendant's ability to pay and set a payment schedule, defendant has forfeited this argument by failing to include it in his motion to reconsider. Tyus , 2011 IL App (4th) 100168, ¶ 85, 355 Ill.Dec. 742, 960 N.E.2d 624. Finally, plain-error review is not available because defendant fails to demonstrate that the trial court's omission deprived him of a fair sentencing hearing or affected his substantial rights. Hanson , 2014 IL App (4th) 130330, ¶ 40, 388 Ill.Dec. 718, 25 N.E.3d 1. Accordingly, we reject defendant's argument.

¶ 88 III. CONCLUSION

¶ 89 For the reasons stated, we affirm the trial court's judgment.

¶ 90 Affirmed.

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