People v. Toliver
2016 IL App (1st) 141064
| Ill. App. Ct. | 2016Background
- On July 25, 2013, officers observed Marcus Toliver engage in two hand-to-hand heroin transactions near 3225 W. Douglas Blvd.; officers recovered a plastic bag containing 13 smaller bags of suspected heroin. Toliver was arrested and charged with possession with intent to deliver and with the statutory 1,000-foot-school enhancement.
- Officers Sandoval and Duran testified they were familiar with the neighborhood and identified a nearby building as Lathrop Elementary School; the parties stipulated the distance from the incident to “Lathrop Elementary School” was 967 feet.
- Toliver’s trial counsel conceded to the jury in closing that Toliver was within 1,000 feet of the school but contested that Toliver was selling drugs; the jury convicted on both counts and the school-enhanced count was used for sentencing (10 years).
- On appeal Toliver did not contest the underlying possession-with-intent verdict but argued the State failed to prove that Lathrop Elementary School was in fact a school (i.e., operational/active) on the date of the offense, and thus the enhancement was unsupported.
- The majority held (1) the statute does not require proof the school was “operational” on the date of the offense and the jury instruction expressly made session/time irrelevant; (2) Toliver had stipulated/conceded the location issue, forfeiting a foundational challenge; (3) remanded only to correct mittimus to add eight days of presentence custody credit.
- The opinion includes a dissent arguing the school had been officially closed in 2012 and that the State failed to prove the school existed or was active on the offense date, so the enhancement should be vacated and the case remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State must prove a school was "operational"/"active" on the date of the offense to obtain the 1,000-foot school enhancement | State: statute and IPI instruction do not require proof classes were in session or that a school was operational; testimony and stipulation supported that the location was a school | Toliver: State must prove the building was a functioning/active school on the offense date (not merely called a school) | Majority: No operational/active requirement in statute; proof the property was a school (plus stipulation on distance) sufficed; enhancement affirmed. Dissent: would require proof of existence/active status and would vacate enhancement. |
| Whether Toliver is entitled to additional presentence custody credit | State: concurs with correction | Toliver: requests additional 8 days of credit (total 243 days) | Court modified mittimus to add eight days, awarding 243 days total presentence credit. |
Key Cases Cited
- People v. Amigon, 239 Ill. 2d 71 (discusses standard for reviewing sufficiency of evidence)
- People v. Goldstein, 204 Ill. App. 3d 1041 (interpreting "school" to mean public or private elementary/secondary school, community college, college or university)
- People v. Daniels, 307 Ill. App. 3d 917 (noting children may congregate on school property even when school is not in session)
- People v. Young, 2011 IL 111886 (Supreme Court: definition/limits on "school" in section 407 context)
- People v. Morgan, 301 Ill. App. 3d 1026 (police officer familiarity with community may support testimony about status of nearby public property)