Opinion
No. 1-04-3731
September 18, 2006. Withdrawn by the Court on October 20, 2006.
Appeal from the Circuit Court of Cook County, 00 CR 8962, John Kirby, Judge, presiding.
Following an August 2004 bench trial, defendant, John Naylor, was found guilty of four felony narcotics charges: possession of heroin with intent to deliver while on Chicago Housing Authority (CHA) property, delivery of heroin on CHA property, possession of heroin with intent to deliver and delivery of heroin. The trial court sentenced defendant to six years' imprisonment and imposed a total of $2,720 in fines, assessments, costs and fees.
Defendant appeals, arguing that: (1) the trial court improperly admitted his prior conviction for aggravated battery because the conviction was entered 14 years prior to trial; (2) three of defendant's convictions should be vacated because they are lesser included offenses of delivery of a controlled substance on CHA property; (3) defendant should be awarded $5-per-day presentence credit for the 101 days he was in custody prior to sentencing toward his $2,000 fine for possession of a controlled substance; and (4) the statute mandating that persons convicted of drug-related offenses be assessed a $5 fee for deposit into the Spinal Cord Injury Paralysis Cure Research Trust Fund (Spinal Cord Fund) violates defendant's due process rights because there is no rational relationship between the sale of a controlled substance and the public interest in the Spinal Cord Fund.
The following evidence was presented at defendant's August 2004 bench trial. The State proceeded at trial on four of the six counts from defendant's indictment: possession of a heroin with intent to deliver while on CHA property, delivery of heroin on CHA property, possession of heroin with intent to deliver, and delivery of heroin.
Officer John Lewis testified that he is a Chicago police officer assigned to the narcotics and gang investigation section.
On March 9, 2000, Officer Lewis was working in the vicinity of 4429 S. Federal in Chicago. 4429 S. Federal is part of the Robert Taylor Homes, which is property owned by CHA. On that date, Officer Lewis, in conjunction with other officers, was conducting an operation to suppress narcotics activity in Robert Taylor Homes. Officer Lewis's role was to make a controlled narcotics purchase.
Officer Lewis was in civilian dress. He entered the Robert Taylor Homes at about 10:20 a.m. He went to the north fourth-floor stairwell. He met an individual who asked Officer Lewis if he wanted "white," which Officer Lewis understood to mean heroin. Officer Lewis identified that individual as defendant. Officer Lewis responded to defendant that he wanted one foil packet. Officer Lewis paid with a $10 bill of prerecorded "1505 funds." The serial number from the bill was recorded prior to the purchase. Officer Lewis exchanged the $10 bill for one tinfoil packet containing a white powder he suspected was heroin. Officer Lewis then left the stairwell.
Officer Lewis saw defendant again 10 to 15 minutes later when defendant was being led out of the building by Officer William McKenna. Officer McKenna then returned the $10 prerecorded bill to Officer Lewis. He inventoried the $10 bill and the tinfoil packet.
On cross-examination, Officer Lewis stated that he made one purchase that day. Officers Boggan, Boyd and Espinosa were also present in the stairwell when Officer Lewis made his purchase. Defendant was standing with a couple of other individuals. Officer Boyd was standing behind Officer Lewis in line for a purchase. Officer Lewis said all four officers made purchases. Then, they all exited the building. Officer Lewis did not know from whom the other officers purchased. Each of the officers returned to his vehicle and radioed the physical and clothing descriptions of the individuals. Defendant was arrested along with a few other individuals. From inside his unmarked car, Officer Lewis saw defendant being brought out of the building. Officer Lewis admitted that he did not see Officer McKenna recover the $10 bill from defendant.
Detective Deon Boyd testified that he is currently a detective with Area 2 homicide in the Chicago police department, but in March 2000, he was a police officer assigned to the organized crime, narcotics, section.
On March 9, 2000, Detective Boyd was working in the vicinity of 4429 S. Federal in Chicago. He was working as an undercover officer at a CHA housing complex. He was working with Officer Opal Espinosa and also saw Officers Lewis and Boggan at that location. Once at that location, he was told by several people to go to the fourth-floor stairwell.
When he reached the fourth-floor stairwell, Detective Boyd saw a line of individuals making narcotics purchases. Officer Lewis was leaving the line when Detective Boyd reached the line. When Detective Boyd got to the front of the line, he came into contact with a man he identified as defendant. Detective Boyd asked defendant to get two packages of narcotics. He had a $20 bill of "1505 prerecorded funds" with him for the purchase. The serial number of the $20 bill had been prerecorded. Detective Boyd tendered the $20 bill in exchange for two tinfoil packets. Detective Boyd opened the packets and saw a white powder substance that he suspected was heroin. Detective Boyd then exited the stairwell.
Detective Boyd and Officer Espinosa then returned to their undercover vehicle and informed the enforcement team of defendant's description. After the enforcement team arrived on the scene, they apprehended defendant and several other individuals. Detective Boyd saw defendant with Officer McKenna. Officer McKenna later returned the $20 bill of prerecorded funds to Detective Boyd. He inventoried the tinfoil packets and the $20 bill.
On cross-examination, Detective Boyd said he thought three or four people were arrested that day. He knew one individual that was arrested was Kohler Parks, from whom he saw Officer Espinosa buy drugs. He did not see from whom Officers Lewis or Boggan purchased drugs.
The State offered a stipulation that, if called to testify, Timothy Tripp, a forensic chemist with the Illinois State Police crime cab, would state that he tested the powder from each of the tinfoil packets submitted by Officer Lewis and Detective Boyd. He would testify that the substance in the packet recovered from Officer Lewis tested positive for the presence of heroin and that one of the packets submitted by Detective Boyd tested positive for heroin. The defense did not object to this stipulation.
The State rested after the stipulation was entered. Defendant then moved for a directed finding, which the trial court denied.
Defendant testified on his own behalf. He said that on March 9, 2000, he was living in apartment 902 at 4429 S. Federal. He said he was arrested that day by the Chicago police department. He denied being in possession of money from drug sales. Defendant said that all he remembered was being arrested with a lot of people and placed in a "paddy wagon." He denied selling drugs that day.
Defendant said he was coming down the stairs from his apartment when he was jumped and sprayed in his face with mace. He remembers asking for a paramedic because his eyes were burning.
On cross-examination, defendant said he did not remember which floor he was on when the police sprayed him with mace. He repeated several times that all he remembered was getting sprayed. He said that when he left his apartment, he was going to pick up his son from kindergarten.
After defendant testified, the State offered a certified copy of defendant's 1990 conviction for aggravated battery as rebuttal evidence. Defendant's attorney objected to its admission based on the length of time since defendant's release as being more than 10 years. The trial court overruled defendant's objection and admitted the certified copy of the conviction.
The trial court found defendant guilty on all counts. At a November 2004 sentencing hearing, the trial court sentenced to six years' imprisonment based on "four counts of guilty." The trial court also imposed a total of $2,720 in fines, fees, assessments, and costs, including a $2,000 drug assessment and $5 fee for the Spinal Cord Fund.
This appeal followed.
Defendant first argues that the trial court improperly admitted his prior conviction for aggravated battery because defendant's prior conviction occurred more than 10 years before his current trial. The State initially responds that defendant has waived this issue on appeal by failing to raise the issue in a posttrial motion. In the alternative, the State maintains that the trial court properly allowed the prior conviction as impeachment because defendant's sentence on that charge extended into the 10-year period between defendant's release from prison and defendant's arrest and trial.
Defendant concedes that he failed to raise this issue in his posttrial motion, but asks this court to review this issue as plain error. Supreme Court Rule 615(a) states that "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." 134 Ill. 2d R. 615(a). Under the plain error rule, issues not properly preserved may be considered by a reviewing court under two limited circumstances: (1) where the evidence is closely balanced, so as to preclude argument that an innocent person was wrongfully convicted; or (2) where the alleged error is so substantial that it affected the fundamental fairness of the proceeding and remedying the error is necessary to preserve the integrity of the judicial process. People v. Hall, 194 Ill. 2d 305, 335 (2000).
Defendant asserts that the evidence was closely balanced in this case because the only evidence presented was the testimony of the officers and defendant. Defendant contends that the improperly admitted evidence of prior conviction was highly prejudicial in the trial court's credibility determination. We agree with defendant that the evidence was closely balanced and that the admission of the evidence of his prior conviction for impeachment may have influenced the trial court's credibility determination.
The Illinois Supreme Court in People v. Montgomery, 47 Ill. 2d 510, 516 (1971), delineated the admissibility of prior convictions for impeachment. For the purposes of attacking credibility, evidence of a prior conviction is admissible if: (1) the crime was punishable by death or imprisonment for more than one year, or the crime involved dishonesty or false statement regardless of the punishment; (2) less than 10 years have elapsed since either the conviction or the witness's release from confinement, whichever is later; and (3) the probative value of the conviction outweighs the danger of unfair prejudice Montgomery, 47 Ill. 2d at 516.
Here, defendant's prior conviction for aggravated battery was entered on December 14, 1990, at which time defendant received a four-year sentence. Defendant's trial in the instant case took place in August 2004. At trial, the prosecutor pointed out that if defendant served the full four-year term, he would have been released within 10 years of trial. However, the State failed to present evidence of defendant's actual release date.
Nevertheless, the admission of evidence of defendant's prior conviction may not have been an error. The event or point in time by which the 10-year period must run, meaning when is the end of the 10-year point, is not specifically defined and has been determined differently by different courts. "While the rule at least generally describes when the period begins, it says nothing about when the period must be completed." C. Wright V. Gold, Federal Practice Procedure, Evidence § 6136, at 260 (1993). The various pertinent events have been held to be the: (1) date of the new offense; (2) date of the charge of the new offense; (3) date of trial; and (4) date of testimony. Illinois courts have not treated the question the same, although none have specifically addressed and analyzed the issue. See, e.g., People v. Reddick, 123 Ill. 2d 184, 203 (1988) (date of trial); People v. McKay, 279 Ill. App. 3d 195, 202 (1996) (date of new offense); People v. Truss, 254 Ill. App. 3d 767, 780-81 (1993) (date of trial); People v. Hawkins, 243 Ill. App. 2d 210, 223-24 (1993) (date of testimony); People v. Strange, 125 Ill. App. 3d 43, 45-46 (1984) (apparently date of trial); People v. Thibudeaux, 98 Ill. App. 3d 1105, 1113 (1981) (date of testimony).
After considering these cases, we find that the date the 10-year period terminates is the date of the new offense. This date is more rational and logical than either the date of trial or the date of testimony and clearly is an objective date. Both the trial date and date of testimony are subjective and can be purposefully manipulated by dilatory tactics. Here, the date of the new offense occurred on March 9, 2000, whereas defendant's trial did not take place due to continuances until August 11, 2004, which was the same date as defendant's testimony. We find that using the date of the new offense as the measuring point supports the philosophy behind the time period. "The philosophy underlying this time limitation is that 10 years of conviction-free living demonstrates sufficient rehabilitation in the witness's credibility to attenuate any probative value thus making those prior convictions per se inadmissible." People v. Medreno, 99 Ill. App. 3d 449, 451 (1981). See also United States v. Cathey, 591 F.2d 268, 277-78 n. 2 (5th Cir. 1979) (Fay, J., dissenting) ("If prior convictions lose their probative value for impeachment purposes because of ten years of `good behavior', [the date of next succeeding alleged offense] is the period [from which] we should measure the period of unquestioned good behavior"). Maintaining good behavior has more of a relationship to the date of the new offense than the date of trial or testimony because those later dates have no bearing on how long a defendant engaged in good behavior. In contrast, the date of the new offense ended any period of good behavior because the defendant has already allegedly engaged in bad behavior reflecting on his credibility.
Therefore, the operative dates under Montgomery are the date of the prior conviction or release from custody or parole, whichever occurred later, and the date of the new offense. In the instant case, we do not know the date of defendant's release from prison or parole from his prior conviction and, contrary to the State's assertion, we will not presume that defendant served his full sentence without support in the record. However, we do not need that date. Defendant's prior conviction was entered on December 14, 1990, and the date of his new offense was March 9, 2000. The new offense occurred within 10 years of his prior conviction, and therefore, based on our finding that the date of new offense is the end point in the Montgomery analysis, evidence of defendant's prior conviction was properly admitted at trial for impeachment purposes.
Defendant also asserts on appeal that three of his four convictions must be vacated because they are lesser included offenses to defendant's conviction for delivery of a controlled substance on CHA property. The State concedes that defendant's convictions for possession of a controlled substance with intent to deliver and delivery of a controlled substance are lesser included offenses and should be vacated. However, the State disputes defendant's contention that his conviction of possession of a controlled substance with intent to deliver on CHA property should be vacated because defendant's convictions were based on two sales and those convictions stand for separate sales of heroin to Officer Lewis and Detective Boyd.
The State relies on the analysis set forth in People v. King, 66 Ill. 2d 551, 566 (1977), in which the supreme court held that a multiple convictions are improper if they are based on the same physical act. The State agrees that this holding in King applies to the convictions for possession of a controlled substance with intent to deliver and delivery of a controlled substance, but claims that defendant's conviction for possession of a controlled substance with intent to deliver on CHA property should stand because it can be attributed to a different sale than the conviction for delivery of a controlled substance on CHA property.
However, the State fails to acknowledge the full impact of the decision in King. In King, the supreme court stated:
"Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts." King, 66 Ill. 2d at 566.
The supreme court in People v. Rodriguez, 169 Ill. 2d 183 (1996), reexamined the holding in King and outlined how to approach an analysis under King. First, a court determines whether a defendant's conduct consisted of separate acts or a single physical act. Multiple convictions are improper if they are based on precisely the same physical act. Rodriguez, 169 Ill. 2d at 186. An "act" is defined as "any overt or outward manifestation which will support a different offense." King, 66 Ill. 2d at 566; see also Rodriguez, 169 Ill. 2d at 188. If the court determines that the defendant committed multiple acts, the court then goes on to determine whether any of the offenses are lesser included offenses. Rodriguez, 169 Ill. 2d at 186. If so, then, under King, multiple convictions are improper; if not, then multiple convictions may be entered. Rodriguez, 169 Ill. 2d at 186, citing King, 66 Ill. 2d at 559-66.
Defendant engaged in two transactions; one with Officer Lewis and one with Detective Boyd. Each of these transactions could have been charged as delivery of a controlled substance on CHA property, but defendant was only charged once for that offense. Defendant's indictments do not indicate that the counts relate to different transactions. Rather, defendant was charged for one course of conduct.
Defendant's indictment for possession of a controlled substance with intent to deliver on CHA property reads as follows:
"John Naylor committed the offense of possession of controlled substance with intent to deliver in that he, unlawfully and knowingly possessed with intent to deliver otherwise than as authorized in the Illinois Controlled Substances Act of said State of Illinois then in force and effect, less than 10 grams of a substance containing a certain controlled substance, to wit: heroin, on residential property owned, operated and managed by a public housing authority, the Chicago Housing Authority, to wit: Robert Taylor Homes, in violation of Chapter 720 Act 570 section 401(d)/407(B)(2) of the Illinois Compiled Statutes 1992 as amended."
The indictment for delivery of a controlled substance on CHA property provides:
"John Naylor committed the offense of delivery of a controlled substance in that he, unlawfully and knowingly delivered otherwise than as authorized in the Illinois Controlled Substances Act of said State of Illinois then in force and effect, less than 10 grams of a substance containing a certain controlled substance, to wit: heroin, on residential property owned, operated and managed by a public housing authority, the Chicago Housing Authority, to wit: Robert Taylor Homes, in violation of Chapter 720 Act 570 section 401(d)/407(B)(2) of the Illinois Compiled Statutes 1992 as amended."
Neither indictment contains any details showing that it applies to a specific transaction. Therefore, under a King analysis, defendant's conviction for possession of a controlled substance with intent to deliver on CHA property must be vacated because it is a lesser included offense of delivery of a controlled substance on CHA property. See People v. Garcia, 195 Ill. App. 3d 621, 631 (1990). Defendant engaged in separate acts, which could support multiple convictions, but his conviction for possession of a controlled substance with intent to deliver on CHA property was charged as a lesser included offense to delivery of a controlled substance on CHA property.
Contrary to the State's assertion, the indictments and the State's case at trial do not support its argument on appeal that each conviction related to a different sale. We also note that the State does not cite any authority to support its argument that two transactions support convictions for different offenses. Instead, the State merely says that we can attribute the delivery conviction to one sale and the possession with intent to deliver to the other sale. We disagree. The State made no attempt at trial to apportion defendant's culpability for each transaction to specific offenses, and it is improper for the State to do so on appeal. See People v. Crespo, 203 Ill. 2d 335, 343-45 (2001) (declining to allow the State to attribute different crimes to individual stab wounds for the first time on appeal.)
Based on the foregoing analysis, we find that defendant's convictions for possession of a controlled substance with intent to deliver, delivery of a controlled substance, and possession of a controlled substance with intent to deliver on CHA property are lesser included offenses of delivery of a controlled substance on CHA property. Therefore, we vacate defendant's convictions on those three offenses and remand to the circuit court for resentencing.
Next, defendant contends that he is entitled to apply his presentence credit toward the $2,000 drug assessment imposed by the trial court. The State maintains that defendant is not entitled to a credit because convicted offenders are only allowed the credit toward fines, not assessments.
Defendant asserts that under section 110-14 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/110-14 (West 2002)), he is entitled to a credit of $505 for the $2,000 controlled substance assessment imposed under section 411.2(a)(2) of the Illinois Controlled Substances Act ( 720 ILCS 570/411.2(a)(2) (West 2002)). Section 110-14 provides:
"Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. However, in no case shall the amount so allowed or credited exceed the amount of the fine." 725 ILCS 5/110-14(a) (West 2002).
The State responds that section 110-14 applies only to fines and not assessments, such as the controlled substance assessments. However, the court in People v. Fort, 362 Ill. App. 3d 1 (2005) rejected this argument advanced by the State. See Fort, 362 Ill. App. 3d at 5-8.
The Fort court considered several decisions from other appellate districts, which have consistently ruled against the State on its argument that the pretrial detention credit applies to "fines" and that any penalty not specifically designated as a "fine" is ineligible for the credit. Fort, 362 Ill. App. 3d at 5 ("Several courts from other appellate districts have decided the credit issue. They represent a shutout against the State. No reported decision supports the State's position"); see People v. Haycraft, 349 Ill. App. 3d 416 (2004); People v. Littlejohn, 338 Ill. App. 3d 281 (2003); People v. Gathing, 334 Ill. App. 3d 617 (2002); People v. Rodriguez, 276 Ill. App. 3d 33 (1995); People v. Otero, 263 Ill. App. 3d 282 (1994); People v. Reed, 255 Ill. App. 3d 949 (1994); People v. Brown, 242 Ill. App. 3d 465 (1993) (Second, Third and Fifth District decisions holding that the pretrial detention credit is applicable to controlled substance assessments). Fort also pointed out that the legislature could have made the credit inapplicable since it had done so "when it amended the Violent Crime Victims Assistance Act to provide fines imposed for certain listed offenses are `not subject to the provisions of section 110-14 of the Code of Criminal Procedure of 1963' (Ill. Rev. Stat. 1985, ch. 70, par. 510(b))." Fort, 362 Ill. App. 3d at 6.
Fort further observed that during senate debates on section 411.2, senators referred to the assessments as "fines," and "[n]othing in the Senate debates indicates an intent that the drug assessment was to be anything other than a species of a fine." Fort, 362 Ill. App. 3d at 7. Fort was also persuaded by the fact that when the legislature amended section 411.2 in 1994, 1995, and 1997, it did not act to overrule the numerous appellate court decisions holding that the predetention credit was applicable to the controlled substance assessments. Fort, 362 Ill. App. 3d at 8. Fort concluded that the predetention credit provided in section 110-14 was applicable to the controlled substance assessment. Fort, 362 Ill. App. 3d at 8.
We agree with Fort's conclusion and note that other divisions from the First District recently have similarly agreed with Fort. See People v. McNeal, 364 Ill. App. 3d 867, 873-74 (2006); People v. Blakney, No. 1-04-3669, slip op. at 8-9 (August 2, 2006). Therefore, we find that defendant is entitled to a $505 credit against the $2,000 controlled substance assessment for the 101 days he spent in custody prior to sentencing.
Finally, defendant contends that section 5-9-1.1(c) of the Unified Code of Corrections (Code) ( 730 ILCS 5/5-9-1.1(c) (West 2002)), which requires drug-related offenders to pay $5 to the Spinal Cord Fund, violates his due process rights. We agree.
The State replies that the $5 for the Spinal Cord Fund is a fine and not a fee and is therefore constitutional. Alternatively, the State argues that if we find that the $5 charge is a fee, the charge is constitutional because the method of collecting the funds reasonably achieved the desired result of funding a public interest. However, this court has previously addressed the State's arguments and determined that payments ordered pursuant to section 5-9-1.1(c) of the Code are fees and expressly found that the relationship between such payments and the Spinal Cord Fund is "simply too attenuated to survive [a] defendant's due process challenge." People v. Rodriguez, 362 Ill. App. 3d 44, 54 (2005); see also Fort, 362 Ill. App. 3d at 9-10 (citing Rodriguez with approval and finding that the $5 fee violated the defendant's substantive due process rights); McNeal, 364 Ill. App. 3d at 875; Blakney, slip op. at 13-14. Thus, in accordance with Rodriguez and the above cited cases, we reverse the trial court's order that defendant pay $5 to the Spinal Cord Fund.
Based on the foregoing analysis, we affirm defendant's conviction, remand to the circuit court of Cook County for resentencing, and order the modification of his costs and fees order to reflect a credit of $505 against his controlled substance assessment of $2,000 as well as striking the $5 fee for the Spinal Cord Injury Paralysis Cure Research Trust Fund.
Affirmed in part and cause remanded with directions.
GARCIA and ROBERT GORDON, JJ., concur.