2011 IL App (2d) 100391
Ill. App. Ct.2011Background
- Defendant Daniel Carreon was convicted after a stipulated bench trial of possession of drug paraphernalia and possession of cannabis.
- Evidence included cannabis and a cigar/pipe; police testified the cigar could be used to ingest cannabis; laboratory tests showed cannabis in the cigar.
- The parties stipulated that the cannabis and the cigar were found during a search of defendant's vehicle, and that the cigar contained cannabis.
- The trial court found the cigar to be drug paraphernalia and imposed sanctions including fines and several fees.
- On appeal, Carreon argues the cigar is not drug paraphernalia and seeks vacatur of certain fines/fees; the State agrees in part on some issues.
- The appellate court reverses and remands on the drug-paraphernalia issue, and vacates/adjusts several fees as explained below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cigars fall within drug paraphernalia. | Carreon purportedly stipulated cigars used to ingest cannabis; State argues cigars are paraphernalia. | Cigars are historically used to ingest tobacco; not within drug paraphernalia under the Act. | Cigars are not drug paraphernalia; conviction reversed. |
| Whether the $250 public-defender fee must be vacated and remanded for ability-to-pay hearing. | State concedes mandatory hearing required. | Public-defender fee should be vacated pending proper hearing. | Vacate $250 fee and remand for ability-to-pay hearing. |
| Whether the $50 performance-enhancing-substance fee was properly imposed. | Statutory basis for the fee existed at the time of offense. | Fee statute not in effect at time of offense; imposition violates ex post facto. | Vacate the $50 fee as improperly imposed. |
| Whether Carreon is entitled to a $5 credit against the mental-health-court fee for presentencing custody. | Credit not applicable or discretionary. | Credit mandatory for time in presentencing custody. | Award a $5 credit against the mental-health-court fee. |
Key Cases Cited
- People v. Love, 177 Ill.2d 550 (Ill. 1997) (fee hearing prerequisite for public-defender costs; forfeiture not proper for unauthorized sentences)
- People v. Dalton, 406 Ill.App.3d 158 (Ill. App. 2d Dist. 2010) (ex post facto constraints on post-offense fines)
- People v. Woodard, 175 Ill.2d 435 (Ill. 2d 1997) (mandatory presentencing custody credit rules)
- People v. Graves, 235 Ill.2d 244 (Ill. 2009) (classification of certain fees as fines; application to presentence context)
- People v. Jones, 223 Ill.2d 569 (Ill. 2006) (distinguishing fines from fees; time in presentence custody implications)
- People v. Donoho, 204 Ill.2d 159 (Ill. 2003) (statutory interpretation regarding exemptions in drug paraphernalia statute)
- People v. Bostic, 348 Ill.App.3d 661 (Ill. App. 2004) (statutory exemptions under 720 ILCS 600/4 and interpretive framework)