2021 IL App (5th) 190190
NOTICE
Decision filed 02/25/21 The text
of this decision may be NO. 5-19-0190
changed or corrected prior to
the filing of a Peti ion for IN THE
Rehearing or the disposition of
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff, ) Pulaski County.
)
v. ) No. 98-CF-91
)
PHILLIP SHARP, )
)
Defendant-Appellee ) Honorable
) William J. Thurston,
(The Department of Corrections, Intervenor-Appellant). ) Judge, presiding.
______________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court, with opinion.
Presiding Justice Boie and Justice Vaughan * concurred in the judgment and opinion.
OPINION
¶1 This appeal arises from the Pulaski County circuit court’s order requiring the Illinois
Department of Corrections (DOC) to pay Brian Trambley attorney fees in the amount of $5661.92
in compensation for his representation of Phillip Sharp in a proceeding under the Sexually
Dangerous Persons Act (Act) (725 ILCS 205/0.01 et seq. (West 2018)). The appellant, the DOC,
filed a petition to vacate the trial court’s order that it pay Trambley’s attorney fees, arguing that
the court erred in that Pulaski County, where the relevant proceedings occurred, was the party
*
Justice Overstreet was originally assigned to participate in this case. Justice Vaughan, who has
been substituted on the panel subsequent to Justice Overstreet’s appointment to the Illinois Supreme Court,
has read the briefs.
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liable for costs of representation of Sharp under the Act. See id. § 5. The DOC’s argument relies
on an amendment to section 5, which became effective July 15, 2013, wherein the following
language was added: “The cost of representation by counsel for an indigent respondent shall be
paid by the county in which the proceeding is brought.” Id. Under the plain language of the Act,
the DOC argues that the county, i.e., Pulaski, is financially responsible for Trambley’s attorney
fees. For the reasons that follow, we reverse the order of the circuit court and remand for further
proceedings consistent with this opinion.
¶2 I. BACKGROUND
¶3 On September 7, 2001, Sharp was charged by amended information with four counts of
aggravated criminal sexual assault. On October 30, 2002, the State filed a petition to proceed under
the Act (725 ILCS 205/0.01 et seq. (West 2002)). On August 31, 2005, a jury trial was held on the
matter, and the jury returned a verdict finding Sharp to be a sexually dangerous person. The trial
court entered judgment on the verdict, and Sharp was committed to the custody of the DOC. On
September 12, 2005, Sharp filed a notice of appeal in accordance with Illinois Supreme Court Rule
606 (eff. Dec. 1, 1999). On June 21, 2006, this court entered a summary order affirming the court’s
judgment. In re Detention of Sharp, No. 5-05-0525 (2006) (unpublished summary order under
Illinois Supreme Court Rule 23(c)).
¶4 Following his commitment to the custody of the DOC, on August 6, 2007, pursuant to
section 9(a) of the Act (725 ILCS 205/9(a) (West 2006)), Sharp filed a pro se application showing
recovery requesting that he be discharged from the commitment order. On May 21, 2010, Sharp
again filed an application for discharge or conditional release but later moved for leave to withdraw
the application, which the trial court granted. On July 5, 2013, Sharp filed another application for
2
discharge or conditional release. The State filed a motion to dismiss the application, which the
court granted.
¶5 On October 9, 2014, Sharp again filed a motion for discharge or conditional release. A jury
trial was held, and on April 25, 2017, the jury entered a verdict finding by clear and convincing
evidence that Sharp was a sexually dangerous person and should remain committed to the custody
of the DOC. The trial court entered judgment on the verdict. Sharp filed a pro se motion for leave
to appeal.
¶6 On June 14, 2017, Trambley filed an entry of appearance as Sharp’s court-appointed
counsel to represent him in proceedings under the Act. The majority of Trambley’s representation
was related to the filing of a motion for new trial on the 2014 application for discharge or
conditional release. On September 21, 2018, Trambley filed a motion to withdraw as counsel. On
November 17, 2018, Trambley filed a motion for order approving attorney fees. Attached to the
motion was a verified statement of services that Trambley provided to Sharp as to his legal
representation from June 2017 through September 2018. Based on previous orders of the trial
court, Trambley requested that the court order the DOC to pay his attorney fees in the amount of
$5661.92. On January 3, 2019, the court entered a written order granting the motion and mandating
that the DOC pay Trambley $5661.92 for the legal services he provided to Sharp.
¶7 On February 11, 2019, the DOC filed a petition to vacate the trial court’s January 3, 2019,
order arguing that the order was not authorized under the Act. The DOC argued that the Act
pertained to proceedings regarding the confinement of an individual declared to be a sexually
dangerous person. Section 5, which was amended in 2013, instructed that “[t]he cost of
representation by counsel for an indigent respondent shall be paid by the county in which the
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proceeding is brought.” 725 ILCS 205/5 (West 2014). Therefore, it argued that Pulaski County,
and not the DOC, was responsible for the cost of Sharp’s legal representation.
¶8 On April 11, 2019, following a hearing, the trial court entered a written order denying the
DOC’s petition to vacate. In reaching its decision, the court stated the following:
“[T]he court relies on statutory authority and case law, including, but not limited to the
following: People v. Downs, 371 Ill. App. 3d 1187 (5th Dist. 2007); People v. Carter,
392
Ill. App. 3d 520 (2nd Dist. 2009); People v. Wilcoxen,
358 Ill. App. 3d 1076 (3rd Dist.
2005); People v. Randolph, 35 Ill. 2d 24 (1966); 725 ILCS 205/0.01 et seq. [(West 2018)]
(The Sexually Dangerous Persons Act); [The Probate Act of 1975 (Probate Act)] 755 ILCS
5/11a-17 [(West 2018)], Duties of personal guardian (Probate Act); 20[ ]ILCS 4026/19
[(West 2018)], (Sex Offender Management Board Fund (and amendments thereto)); Public
Act 098-0088 (including the Synopsis as Introduced, legislative history, and transcripts of
short floor debate on May 2, 2013, and May 7, 2013.
… The court finds that the [DOC], as guardian, is responsible for [the] indigent
respondent, [Sharp]’s attorneys fees, payable to attorney Brian Trambley, in the amount of
$5,661.92. To rule differently, the court would have to interpret all relevant authority in an
inconsistent manner.”
The court reasoned that reading the amended language in section 5 of the Act in conjunction with
its remaining provisions, the Probate Act, and the aforementioned caselaw would make any
alternative ruling untenable. The court further reasoned that:
“The 2013 amendment to the [Act] added the relevant language in section 205/5. Section
205/5 is the pre-adjudication portion of the statute. The section confers the right of a jury
trial to the respondent. In the subsequent statutory provisions (725 ILCS 205/8), the
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directive is made that, if the respondent is found to be a sexually dangerous person, the
Director of Corrections shall be appointed guardian.”
It was therefore the court’s interpretation that, at times prior to the finding that an indigent
respondent is a sexually dangerous person, the county shall bear costs of legal representation.
However, “at a specifically delineated time, i.e.[,] post-adjudication, when the [DOC] becomes
guardian, the [DOC] is responsible for bearing those costs.” The court noted that the General
Assembly specifically included the amended language in section 5 of the Act, the pre-adjudication
phase. The General Assembly did not, however, choose to insert similar language into the post-
adjudicatory sections of the Act.
¶9 Additionally, the General Assembly did not amend the Probate Act of 1975 (Probate Act)
(755 ILCS 5/1-1 et seq. (West 2018)) to create an exception to the duties of a guardian to be read
in conjunction with the amended language in section 5 of the Act. Specifically, the trial court relied
on the statutory language of the Probate Act where a guardian “shall procure for them and shall
make provision for their support, care, comfort, health, education and maintenance, and
professional services as are appropriate.” (Emphasis added.) Id. § 11a-17(a). The court noted that
the plain language of the Probate Act did not make an exception for the DOC when serving as a
guardian of a sexually dangerous person. Lastly, the court cited People v. Carter,
392 Ill. App. 3d
520, 526 (2009), 1 which, according to the court, “created an avenue of reimbursement to the
[DOC] for services rendered to sexually dangerous persons who are indigent.” In accordance with
its reasoning, the court found that the DOC, as Sharp’s guardian, was responsible for the attorney
fees owed to Trambley for the cost of the representation of Sharp in the amount of $5661.92. The
DOC appeals.
1
We note that the decision in that case was issued in 2009, prior to the 2013 amendment of the Act.
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¶ 10 II. ANALYSIS
¶ 11 The issue on appeal is whether the trial court erred in ordering the DOC to pay the costs of
Sharp’s representation for proceedings held pursuant to the Act but after he had been adjudicated
a sexually dangerous person. The question this court must address is whether the amendment to
section 5 of the Act requires the county in which all proceedings under any provision of the Act
pay for the costs of representation of an indigent individual, including post-adjudicatory
proceedings.
¶ 12 This appeal involves a question of statutory interpretation, which this court reviews
de novo. People v. Brooks, 221 Ill. 2d 381, 388 (2006) (citing People v. Donoho,
204 Ill. 2d 159,
172 (2003)). A court’s primary objective in interpreting a statute is to give effect to the intent of
the legislature. People v. Phelps,
211 Ill. 2d 1, 15 (2004). The most reliable indicator of the
legislature’s intent is the language of the statute.
Id. The language of the statute must be accorded
its plain and ordinary meaning. Landis v. Marc Realty, L.L.C.,
235 Ill. 2d 1, 6 (2009) (citing King
v. First Capital Financial Services Corp.,
215 Ill. 2d 1, 26 (2005)). Where the language is clear
and unambiguous, it will be applied as written, without resorting to extrinsic aids of statutory
construction.
Id. at 6-7 (citing In re R.L.S.,
218 Ill. 2d 428, 433 (2006)).
¶ 13 Section 5 of the Act reads as follows:
“The respondent in any proceedings under this Act shall have the right to demand a trial
by jury and to be represented by counsel. The cost of representation by counsel for an
indigent respondent shall be paid by the county in which the proceeding is brought. At the
hearing on the petition it shall be competent to introduce evidence of the commission by
the respondent of any number of crimes together with whatever punishments, if any, were
inflicted.” 725 ILCS 205/5 (West 2018).
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The language, “The cost of representation by counsel for an indigent respondent shall be paid by
the county in which the proceeding is brought,” was an amendment to the original language and
became effective on July 15, 2013.
¶ 14 The motion for discharge or conditional release filed by Sharp on October 9, 2014, was
brought under section 9 of the Act, which sets out post-adjudicatory proceedings and does not
address costs of representation. See 725 ILCS 205/9 (West 2014). Prior to the 2013 amendment,
section 5 of the Act was also silent as to responsibility for costs of representation of an indigent
respondent.
¶ 15 Here, the DOC argues that the 2013 amendment to section 5 is unambiguous and
establishes that the General Assembly intended for the county to pay for the cost of representation
for an indigent respondent in all proceedings under the Act, regardless of whether they are pre- or
post-adjudication. Alternatively, should this court find the language ambiguous, the DOC argues
that the floor debates of the General Assembly indicate that there was no intent to distinguish
between pre- and post-adjudication proceedings; furthermore, the Illinois Supreme Court has
previously held that the General Assembly intended for the provisions of section 5 be applied to
section 9 of the Act. We agree with the DOC that the statute is unambiguous and that the plain
language of the statute requires that the county in which a proceeding under the Act is held be
responsible for the costs of representation of an indigent respondent.
¶ 16 At the outset, we note that the caselaw cited in both the trial court’s written order and in
the appellee’s brief predates the effective date of the amendment to section 5, and those cases are
therefore not instructive to this court in interpreting the statute.
¶ 17 Looking to the plain language of the statute, we must determine whether the provision in
section 5 regarding financial responsibility for the cost of representation applies to proceedings
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brought under section 9 of the Act—specifically, proceedings that are held in accordance with the
Act after respondent has been adjudicated a sexually dangerous person.
¶ 18 Section 5 unambiguously requires the county in which a proceeding under the Act is held
be responsible for the cost of representation of an indigent respondent. The statute does not say
that the requirement applies only to proceedings under that section. It also does not make any
distinction between pre-adjudication and post-adjudication proceedings brought under the Act.
The language is clear, and the change in plurality between the first sentence and the second
sentence cannot be considered a “change in language,” as argued by the appellee, because that
would violate section 1.03 of the Statute on Statutes where “[w]ords importing the singular number
may extend and be applied to several persons or things, and words importing the plural number
may include the singular.” 5 ILCS 70/1.03 (West 2018).
¶ 19 Reading the Act in conjunction with the Probate Act does not affect our ruling as the
provisions of the Act apply only to proceedings established within its provisions. A fundamental
rule of statutory construction is that “ ‘where there exists a general statutory provision and a
specific statutory provision, either in the same or in another act, both relating to the same subject,
the specific provision controls and should be applied.’ ” Mattis v. State Universities Retirement
System, 212 Ill. 2d 58, 77 (2004) (quoting Knolls Condominium Ass’n v. Harms,
202 Ill. 2d 450,
459 (2002)). The section of the Probate Act cited by both the trial court and the appellee establishes
duties of a personal guardian of a ward. 755 ILCS 5/11a-17 (West 2018). Under the Probate Act,
a “ward” is defined as including “a minor or a person with a disability.”
Id. § 1-2.17. The Probate
Act applies to all wards encompassed within its definition, not only to persons adjudicated to be
sexually dangerous under the Act. However, the provisions of section 5 do not apply to any
proceedings brought outside the statutory scope of the Act. Therefore, because the provisions of
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the Act are more specific and the Probate Act applies more generally, we find the Act’s
requirements controlling.
¶ 20 Lastly, we note that though there is no caselaw on the particular issue before this court, we
do find instructive our supreme court’s application of the pre-amendment version of section 5 of
the Act to section 9. See People v. Olmstead, 32 Ill. 2d 306, 312-13 (1965) (finding that the right
to counsel and trial by jury prescribed in section 5 of the Act applied to any proceeding brought
under the Act; specifically, proceedings resulting from the filing of an application for discharge
under section 9); see also People v. Trainor,
196 Ill. 2d 318, 331 (2001).
¶ 21 Because we find no ambiguity in the plain language of the Act, we are required to reverse
the trial court where the statute holds the county in which a proceeding is held be responsible for
the costs of legal representation of an indigent respondent. We must therefore find that the cost of
the Sharp’s representation is the responsibility of Pulaski County, not the DOC. However, we do
note that though this court is bound to enforce the plain language of the statute, the legislature has
the power to amend the language so to relieve some of the financial burden for post-adjudicatory
proceedings that the language of the Act creates for small or rural counties and balance the cost of
representation for indigent defendants. Especially where the indigent defendant continues to be
denied release, despite filing multiple petitions for release under the Act.
¶ 22 III. CONCLUSION
¶ 23 Based on the foregoing, we reverse the order of the circuit court of Pulaski County finding
the DOC responsible for the costs of representation of Sharp in a proceeding brought under the
Act and remand for further proceedings consistent with this opinion.
¶ 24 Reversed and remanded.
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No. 5-19-0190
Cite as: People v. Sharp, 2021 IL App (5th) 190190
Decision Under Review: Appeal from the Circuit Court of Pulaski County, No. 98-CF-91;
the Hon. William J. Thurston, Judge, presiding.
Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
for Solicitor General, and Kaitlyn N. Chenevert, Assistant Attorney
Appellant: General, of counsel), for intervenor-appellant.
Attorneys Paige Clark Strawn, of Law Office of Paige Clark Strawn, P.C., of
for Mt. Vernon, for appellee.
Appellee:
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