Rule 404(e) Assessment-Waiver Errors Must First Be Raised Under Rule 472, Not as Ineffective Assistance on Direct Appeal

Introduction

People v. Nibbelin resolves an Illinois appellate-court split concerning the proper procedure for correcting the failure to grant a court-assessment waiver under Illinois Supreme Court Rule 404(e). The Supreme Court held that when a defendant represented by a public defender was charged waivable assessments because counsel failed to file the required certification, the defendant must first seek correction in the circuit court under Illinois Supreme Court Rule 472.

The defendant may not avoid Rule 472 by characterizing counsel’s omission as ineffective assistance and raising it for the first time on direct appeal. Because Rule 404(e) makes the waiver mandatory, the resulting charge constitutes an “error in the imposition” of assessments within Rule 472.

Background and Procedural History

Carthell Eugene Nibbelin pleaded guilty in McLean County case No. 17-CF-402 to four counts of possessing child pornography. He received probation and was ordered to pay $14,947 in fines, fees, and costs. After his bond was applied and a probation fee was added, he owed $5,847.

Over several years, the State filed repeated petitions to revoke his probation. Nibbelin also faced additional prosecutions for violations of the Sex Offender Registration Act and related conduct. Following further guilty pleas and admissions, the circuit court ultimately imposed consecutive four-year prison terms on the child-pornography counts and concurrent three-year terms for SORA violations. The court also imposed fines, costs, and assessments.

On consolidated appeal, Nibbelin argued that trial counsel was ineffective for failing to file the certification required by Rule 404(e). That rule provides that a defendant represented by a public defender is entitled to a waiver of qualifying assessments once counsel files the prescribed certification.

The Fourth District declined to decide the issue as an ineffective-assistance claim. It held that the alleged error concerned the imposition of assessments and therefore had to be presented first to the circuit court under Rule 472. The appellate court remanded for that purpose, and the Illinois Supreme Court allowed Nibbelin’s petition for leave to appeal.

Issue Presented

May a defendant whose attorney failed to file a Rule 404(e) assessment-waiver certification raise that omission for the first time on appeal as ineffective assistance of counsel, or must the defendant first file a Rule 472 motion in the circuit court?

Summary of the Opinion

In a unanimous opinion delivered by Justice Rochford, the Supreme Court affirmed the appellate court. It held:

• A defendant improperly charged waivable assessments despite qualifying under Rule 404(e) is alleging an error in the imposition of assessments.
• Rule 472 applies even when counsel’s failure to file the certification contributed to the error; it is not limited to mistakes committed solely by the trial judge.
• The defendant must raise the issue first in the circuit court through a Rule 472 motion.
• The issue cannot be reframed as ineffective assistance of counsel to obtain first-instance appellate review.
• Rule 404(e) certifications are not governed by Rule 404(a)’s 30-day recommendation for applications.
• Because Rule 472 grants continuing jurisdiction, the circuit court may order counsel to file the certification at any time after judgment.

The Court did not decide which of Nibbelin’s assessments were waivable. The State contended that only a $549 Schedule 1 assessment qualified, but the Supreme Court left that question for the circuit court on remand.

Analysis

1. Construction of Rules 404 and 472

The Court interpreted supreme court rules under the same principles used for statutes. It sought the drafters’ intent primarily through the rules’ plain language, while also considering their purposes and the practical consequences of competing interpretations. Because interpretation of the rules presented a question of law, review was de novo.

Rule 472(a)(1) permits circuit courts to correct “[e]rrors in the imposition or calculation of fines, fees, assessments, or costs” at any time after judgment. Rule 472(c) prohibits an appeal based on such an error unless it was first raised in the circuit court. Rule 472(e) directs reviewing courts to remand cases in which a party attempts to raise a covered error for the first time on appeal.

The phrase “errors in the imposition” contains no restriction based on who caused the mistake. Nothing in Rule 472 limits its operation to errors committed exclusively by the judge. The Court therefore rejected Nibbelin’s proposed distinction between a judicial error and an attorney’s omission.

2. Rule 404(e) Creates a Mandatory Waiver

Rule 404(e) provides that, when a defendant is represented by a public defender or another specified free legal-services provider, counsel “shall” file a certification and the defendant “shall” be entitled to a waiver of qualifying assessments. The repeated use of “shall” removes discretion from both counsel and the trial court.

Consequently, when an eligible defendant is charged a waivable assessment because counsel did not submit the certification, the sentencing record contains an assessment that the law does not require. That is substantively an error in the imposition of assessments, regardless of whether counsel’s omission initiated the mistake.

3. Rule 452 Demonstrates Shared Responsibility

The Court relied on the structure created by Rule 452, which was enacted at the same time as Rule 472. Rule 452 requires the State to prepare the written sentencing order, permits defense counsel to review it, and requires the court to enter it.

This structure assigns responsibility for accurate assessments to the court, prosecution, and defense. It undermines the argument that Rule 472 addresses only judicial mistakes. An assessment error may result from the acts or omissions of any participant involved in preparing and reviewing the sentencing order.

4. The Remedial Purpose of Rule 472

Rule 472 was adopted to stop routine disputes over fines, fees, costs, and assessments from being raised initially in appellate courts. These matters ordinarily can be corrected more quickly and efficiently in the circuit court.

Permitting defendants to relabel assessment disputes as ineffective-assistance claims would recreate the precise procedural problem Rule 472 was designed to eliminate. The Court therefore construed the remedial rule broadly and required trial-level presentation.

5. No 30-Day Bar Applies

Nibbelin argued that relief under Rule 472 would be ineffective because more than 30 days had passed. The Court rejected that argument by distinguishing two procedures:

• Rule 404(a): A defendant personally applying for an assessment waiver generally should submit the application within 30 days after sentencing.
• Rule 404(e): A qualifying represented defendant receives a waiver without an application once counsel files the certification. This subsection contains no 30-day limit.

Moreover, Rule 472 allows covered errors to be corrected “at any time following judgment.” The circuit court may therefore direct counsel to file the Rule 404(e) certification even after the ordinary postjudgment period has expired.

Precedents Cited

People v. Shunick

The Court cited People v. Shunick, 2024 IL 129244, for the principle that supreme court rules are construed according to the same interpretive principles governing statutes. This supplied the methodological foundation for the Court’s textual analysis.

People v. Tousignant

People v. Tousignant, 2014 IL 115329, established that the primary objective is to ascertain and implement the drafters’ intent. The best evidence is the rule’s plain language, although its purpose and the consequences of alternative interpretations may also be considered.

People v. Vesey

People v. Vesey, 2026 IL 130919, supported de novo review because the case presented a purely legal question concerning the interpretation of court rules.

People v. Hinton

The appellate court had relied on People v. Hinton, 2019 IL App (2d) 170348, which described Rule 472’s reference to errors in the imposition of assessments as “broad” and “unqualified.” That understanding supported treating Nibbelin’s claim as one within Rule 472 rather than limiting the rule to narrowly defined judicial mistakes.

People v. Eason

People v. Eason, 2020 IL App (3d) 180296, explained that Rule 472 was intended to quell the growing number of appeals involving only fines-and-fees questions not previously raised below. The Supreme Court adopted the same functional understanding of Rule 472’s purpose.

People v. Fair

People v. Fair, 2024 IL 128373, supplied the principle that remedial provisions should be construed broadly to advance their purpose. This favored including Rule 404(e) waiver errors within Rule 472.

People v. Yarber

People v. Yarber, 2026 IL App (4th) 250294-U, represented the contrary appellate approach. It held that counsel’s failure to file a Rule 404(e) certification could be raised on appeal as ineffective assistance because the omission was counsel’s error rather than the trial court’s.

The Supreme Court rejected and overruled that reasoning. Rule 472 does not turn on identifying a single responsible actor. The relevant question is whether the defendant was erroneously subjected to an assessment. The Court also observed that People v. Yarber itself recognized that trial-court proceedings were a more efficient means of securing the certificate and mandatory waiver.

Other Fourth District Decisions

People v. Bogard, 2026 IL App (4th) 250354-U, and People v. Lawson, 2025 IL App (4th) 240718-U, followed the approach adopted in Nibbelin’s appeal by requiring use of Rule 472.

People v. Richmond, 2026 IL App (4th) 250858-U, followed the contrary reasoning reflected in People v. Yarber. People v. Durham, 2025 IL App (4th) 241284-U, acknowledged the State’s Rule 472 argument but resolved the matter through ineffective assistance and remanded for counsel to file the certification. The present opinion resolves that conflict in favor of the Rule 472 procedure.

Complex Concepts Simplified

Assessment

A monetary charge imposed as part of a criminal judgment, such as certain statutory court costs or fees.

Assessment waiver

Relief from paying qualifying court assessments. Under Rule 404(e), qualifying representation makes the waiver mandatory once counsel files the certification.

Certification

A document filed by counsel confirming that the defendant is represented by a public defender or another qualifying free legal-services provider.

Continuing jurisdiction

The circuit court’s authority under Rule 472 to correct specified sentencing errors even after the usual period for modifying a judgment has passed.

De novo review

Independent appellate review of a legal question without deference to the lower court’s interpretation.

Ineffective assistance of counsel

A constitutional claim that counsel’s deficient performance prejudiced the defendant. Nibbelin holds that this label cannot be used to bypass Rule 472 when the underlying complaint is a covered assessment error.

Remedial rule

A rule designed to provide an efficient remedy for a recurring problem. Such rules are generally interpreted broadly enough to achieve their purpose.

Nol-prossed

A charge the prosecution formally declined to pursue.

Impact

The decision establishes a uniform statewide procedure for Rule 404(e) disputes. Defendants, prosecutors, and reviewing courts must treat the failure to grant a mandatory assessment waiver as a Rule 472 matter, even when the immediate cause was defense counsel’s failure to file the certification.

The ruling should reduce direct appeals devoted solely to easily correctable assessment issues. It also preserves meaningful relief because Rule 472 permits correction at any time after judgment and allows a later ruling to be appealed.

More broadly, the decision prevents litigants from circumventing mandatory error-correction procedures merely by restyling a covered sentencing issue as ineffective assistance. At the same time, it confirms that eligible defendants do not lose mandatory Rule 404(e) relief merely because counsel omitted the certificate or more than 30 days have passed.

Conclusion

People v. Nibbelin holds that an assessment imposed despite a defendant’s entitlement to a Rule 404(e) waiver is an error in the imposition of assessments under Rule 472. The error must first be presented to the circuit court and cannot initially be litigated on appeal as ineffective assistance of counsel.

The opinion gives Rule 472 a broad, purpose-driven construction, recognizes the mandatory nature of Rule 404(e), and confirms that circuit courts retain authority to correct these errors without a 30-day limitation. The amount and identity of Nibbelin’s waivable assessments remain for determination on remand.