THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTINELL ANTHONY, Defendant-Appellant.
Docket No. 1-09-1528
Appellate Court of Illinois, First District, Fifth Division
November 7, 2011
2011 IL App (1st) 091528-B
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 08-CR-19320; the Hon. Lawrence Edward Flood, Judge, presiding.
Appellate Court
People v. Anthony, 2011 IL App (1st) 091528-B
Held (Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Defendant was properly convicted of two counts of unlawful possession of a weapon by a felon based on the possession of a firearm and ammunition for the firearm, but the $200 assessment for DNA analysis was vacated where defendant was previously ordered to submit a DNA sample and pay the fee, the $5 court system fee was vacated where the fee only applied to convictions for a violation of the Illinois Vehicle Code, the court services fee was upheld even though the offense for which defendant was convicted was not specifically listed in the statute authorizing the fee, the county jail medical fund fee was upheld even though defendant did not require medical attention during custody, and defendant was entitled to presentence credit against the mental health court fee and the Children‘s Advocacy Center charge.
Judgment Affirmed in part and vacated in part; mittimus corrected.
Michael J. Pelletier, Alan D. Goldberg, and Patrick F. Cassidy, all of State Appellate Defender‘s Office, of Chicago, for appellant.
Anita M. Alvarez, State‘s Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and Mary P. Needham, Assistant State‘s Attorneys, of counsel), for the People.
Panel
JUSTICE MCBRIDE delivered the judgment of the court, with opinion.
Justice Garcia concurred in the judgment and opinion.
Presiding Justice R. Gordon dissented, with opinion.
OPINION
¶ 1 Following a bench trial, defendant, Martinell Anthony, was convicted of two counts of unlawful possession of a weapon by a felon and sentenced to concurrent terms of six years’ imprisonment. On appeal, defendant contends that one of his convictions must be vacated because it was unauthorized by statute. Defendant also disputes various fines and fees imposed against him. We issued our original decision on March 31, 2011. The Illinois Supreme Court subsequently directed us to vacate that decision (People v. Anthony, No. 112324 (Ill. Sept. 28, 2011) (supervisory order)) and to reconsider in light of People v. Marshall, 242 Ill. 2d 285 (2011), which we now do.
¶ 2 Defendant was arrested and charged by information with, among other things, two counts of unlawful possession of a weapon by a felon (
¶ 3 On September 11, 2008, at approximately 8 p.m., Chicago police officer Christopher Ware was in the parking lot of the 63rd Street Beach in Chicago, IL. The parking lot was lit by moonlight and artificial lighting in the lot. Officer Ware saw a woman sitting in the passenger seat of a vehicle and a man, whom he identified as defendant, standing near the vehicle holding a semi-automatic handgun. Defendant put the gun in his pocket and entered
¶ 4 Defendant called his brother-in-law, Derrick Harris, as a witness. Harris owned the vehicle in which the weapons were found and he explained that, on the night of the incident, he and defendant had gone to the beach with two women. Harris was approximately 35 feet away from defendant when the police arrived and he did not see defendant with the weapon that the police recovered on the night of the incident. Harris testified that he was a Navy officer and that he was the owner of the .45-caliber semiautomatic handgun and the ammunition that the police found in his vehicle.
¶ 5 Following closing arguments, the trial court found defendant guilty of two counts of unlawful possession of a weapon by a felon based upon possession of the firearm and possession of the ammunition inside that firearm.1 The court also found defendant guilty of one count of aggravated unlawful possession of a weapon, but merged that conviction into the first count of unlawful possession of a weapon by a felon. The court clarified that “the ammunition found inside the backpack at the rear of the vehicle isn‘t a consideration by this court as far as these charges are concerned.” The court sentenced defendant to concurrent terms of six years’ imprisonment. This appeal followed.
¶ 6 Initially, a question was raised whether aggravated unlawful use of a weapon was a greater offense than unlawful use of a weapon by a felon. Although each offense is a Class 2 felony, the sentencing provision for unlawful use of a weapon by a felon provides for a sentence of 3 to 14 years’ imprisonment (see
¶ 7 Defendant first contends that one of his convictions for unlawful possession of a weapon should be vacated because the legislature did not intend to permit multiple convictions based upon the possession of a single, loaded firearm. Defendant did not preserve this issue in the trial court and asks that we review it for plain error. The plain error doctrine allows a reviewing court to address defects affecting substantial rights (1) if the evidence is closely balanced or (2) if fundamental fairness so requires rather than finding the claims waived. People v. Carter, 213 Ill. 2d 295, 299 (2004). Defendant does not claim that the evidence in
¶ 8 The question of whether the unlawful possession of a weapon by a felon statute permits separate offenses to be charged for simultaneous possession of a handgun and the firearm ammunition inside of that handgun is an issue of first impression.2 The interpretation of a statute is a question of law that is reviewed de novo. Carter, 213 Ill. 2d at 301. Our primary objective when construing a statute is to ascertain and give effect to the intent of the legislature. Carter, 213 Ill. 2d at 301. We begin by examining the language of the statute, which is “the surest and most reliable indicator of legislative intent.” People v. Pullen, 192 Ill. 2d 36, 42 (2000). Where the language of the statute is clear and unambiguous, it must be read and given effect without exception, limitation, or other condition. Carter, 213 Ill. 2d at 301.
¶ 9 In this case, the plain and unambiguous language of the statute allows for multiple convictions based upon simultaneous possession of a firearm and firearm ammunition. Section 24-1.1 makes it unlawful for a person who has been convicted of a felony to possess “any firearm or any firearm ammunition.”
¶ 10 Defendant nevertheless relies upon our supreme court‘s decision in Carter to assert that the statute is ambiguous and that it therefore must be construed to prohibit his conviction for unlawful possession of a weapon based upon the ammunition inside the firearm.
¶ 11 In Carter, the defendant was found in possession of two loaded semiautomatic weapons, a .22-caliber handgun and a .25-caliber handgun, and an ammunition clip containing .22-caliber bullets. The defendant was charged with and convicted of, among other things, four counts of unlawful possession of weapons by a felon. Those four counts were based upon the defendant‘s possession of a .22-caliber handgun, a .25-caliber handgun, and ammunition for the .22-caliber handgun. Carter, 213 Ill. 2d at 298. On appeal, the supreme court was asked
¶ 12 The court stated that whether the legislature intended for the simultaneous possession of weapons and ammunition to be the same offense or separate offenses required it to determine the statute‘s ” ‘allowable unit of prosecution.’ ” Carter, 213 Ill. 2d at 302 (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 220-21 (1952)). The court found that the statute neither prohibited nor permitted the State to bring separate charges for the simultaneous possession of firearms and firearm ammunition because the term “any,” as used in the statute making it unlawful for a felon to possess “any firearm or any firearm ammunition,” could mean either singular or plural. (Internal quotation marks omitted.) Carter, 213 Ill. 2d at 301-02. The court thus found that the term “any” in the statute did not adequately define the allowable unit of prosecution and that the statute was therefore ambiguous. As such, the rule of lenity required the court to construe the statute in the defendant‘s favor. Carter, 213 Ill. 2d at 302.
¶ 13 The court then noted that it had consistently held that, “where a statute is ambiguous, in the absence of a statutory provision to the contrary, simultaneous possession could not support multiple convictions.” Carter, 213 Ill. 2d at 302. The court cited to its prior decision in People v. Manning, 71 Ill. 2d 132 (1978), in which the defendant was found guilty of two counts of possession of controlled substances. In Manning, 71 Ill. 2d at 137, the State argued that the defendant committed two separate offenses in that he knowingly possessed two types of controlled substances, and the defendant asserted that his simultaneous possession of both substances arose out of a single act. The court held that “in the absence of a statutory provision to the contrary, the simultaneous possession of more than one type of controlled substance, under the circumstances shown on this record, constituted a single offense, and only one sentence should have been imposed.” Manning, 71 Ill. 2d at 137.
¶ 14 Our supreme court acknowledged in Carter that its decision in Manning had been superceded by an amendment to the Illinois Controlled Substances Act (the Act) which expressly authorized multiple convictions where a defendant simultaneously possesses more than one type of controlled substance. See
¶ 15 After Carter, the legislature amended the unlawful possession of a weapon by a felon statute by adding the language providing that “[t]he possession of each firearm or firearm ammunition in violation of this Section constitutes a single and separate violation.”
¶ 16 As we previously found, the plain language of the statute allows for multiple convictions based upon possession of both a firearm and firearm ammunition. The statute contains no exception for situations in which the ammunition is loaded inside of the handgun. Because the language of the statute is clear and unambiguous, we will not interpret the statute so as to create such an exception. See Carter, 213 Ill. 2d at 301; People v. Woodard, 175 Ill. 2d 435, 443 (1997) (“Where an enactment is clear and unambiguous, the court is not free to depart from the plain language and meaning of the statute by reading into it exceptions, limitations, or conditions that the legislature did not express ***.“). Additionally, defendant acknowledges that multiple convictions for simultaneous possession of a firearm and separate firearm ammunition are proper under the amended statute but claims that multiple convictions for possession of a loaded firearm are improper. Taking defendant‘s argument to its logical conclusion would result in a greater punishment for a felon who possessed an unloaded firearm and separately possessed firearm ammunition than would result for a felon who possessed a loaded firearm. A reviewing court may not interpret a statute in a way that produces absurd results. Pullen, 192 Ill. 2d at 42; People v. Kohl, 364 Ill. App. 3d 495, 501 (2006). Defendant‘s interpretation of the statute would produce such a result.
¶ 17 In addition, there is no dispute that the statute was amended in response to the decision in Carter, and we note that two of the defendant‘s convictions in that case were based upon possession of a loaded handgun. See Carter, 213 Ill. 2d at 298. Moreover, when the legislature amended the unlawful possession of a weapon by a felon statute, it did so by adding almost the identical language that was added to the Controlled Substances Act and that the supreme court in Carter recognized expressly authorized multiple convictions based upon simultaneous possession of different drugs. See Carter, 213 Ill. 2d at 303. In Carter, our supreme court also stated that this amendment to the Controlled Substances Act demonstrated that the legislature knew how to authorize multiple convictions for simultaneous violations of a single criminal statute. In this case too, through the amendment to the unlawful possession of a weapon by a felon statute, the legislature has specifically
¶ 18 Defendant also claims that the legislative history shows that the amendment to the statute was not intended to permit multiple convictions based upon a loaded firearm. However, where the language of a statute is plain and unambiguous, we must apply the statute without resort to further aids of statutory construction. People v. Collins, 214 Ill. 2d 206, 214 (2005). Where statutory language is ambiguous, however, we may consider other extrinsic aids for construction, such as legislative history and transcripts of legislative debates, to resolve the ambiguity. Collins, 214 Ill. 2d at 214. In this case, the language of the unlawful possession of a weapon statute is clear and unambiguous. Accordingly, we will not interpret the statute by considering extrinsic aids such as legislative history. See Collins, 214 Ill. 2d at 214.
¶ 19 Defendant next contends that several of the fines and fees assessed against him must be vacated. He also claims that he is entitled to have presentence credit applied toward some of those fines. “The propriety of a trial court‘s imposition of fines and fees raises a question of statutory interpretation, which we review de novo.” People v. Price, 375 Ill. App. 3d 684, 697 (2007).
¶ 20 The State initially argues that defendant has forfeited these claims because he failed to raise any issue regarding the fines he was assessed in his motion to reconsider his sentence. Defendant acknowledges his failure to do so, but he points out that the issue of whether a sentence is authorized by statute or a defendant is entitled to presentence credit against a fine is not subject to forfeiture and may be raised for the first time on appeal. See, e.g., People v. Thompson, 209 Ill. 2d 19, 24 (2004) (a sentence not authorized by statute is void and can be attacked at any time and in any court); People v. Woodard, 175 Ill. 2d 435, 457 (1997). Accordingly, we review the fines and fees levied against defendant to determine if they were authorized by statute.
¶ 21 Defendant first challenges his $200 assessment for DNA analysis pursuant to section 5-4-3 of the Unified Code of Corrections (
¶ 22 Defendant claims that the $200 DNA fee was improperly assessed against him because he previously submitted a DNA sample in connection with a prior felony conviction for burglary or possession of a controlled substance. Defendant asserts that the statute contemplates the imposition of a single, one-time fee and does not authorize additional
¶ 23 This issue was decided by our supreme court‘s recent decision in People v. Marshall, 242 Ill. 2d 285 (2011). In that case, the court held that section 5-4-3 “authorizes a trial court to order the taking, analysis and indexing of a qualifying offender‘s DNA, and the payment of the analysis fee only where that defendant is not currently registered in the DNA database.” Marshall, 242 Ill. 2d at 303. Therefore, if defendant in this case was previously ordered to submit a DNA sample and pay the corresponding fee, the trial court‘s order imposing the $200 DNA fee is void and must be vacated. See Marshall, 242 Ill. 2d at 303.
¶ 24 The State claims that defendant has failed to demonstrate that he has previously been ordered to submit a DNA sample. The State argues that it is defendant‘s burden to make this showing and that, because of that failure, this issue should be resolved against him. See Foutch v. O‘Bryant, 99 Ill. 2d 389, 391-92 (1984). However, the record demonstrates that at defendant‘s sentencing hearing, the parties agreed that defendant pled guilty to three felony narcotics violations on November 11, 2002. The record also shows that defendant pled guilt to burglary and was sentenced on that conviction in January of 2004. These convictions were imposed after the statute was amended to require all persons convicted of a felony to submit a DNA sample and pay a corresponding fee. See Pub. Act 90-130, § 30 (eff. Jan. 1, 1998) (amending
¶ 25 Defendant next claims, and the State concedes, that the $5 court system fee (
¶ 26 Defendant next claims that the $25 court services fee assessment must be vacated because it applies only to the offenses enumerated in the statute and because he was not convicted of one of those offenses. See
“In criminal, local ordinance, county ordinance, traffic and conservation cases, [the court services fee] shall be assessed against the defendant upon a plea of guilty, stipulation of facts or findings of guilty, resulting in a judgment of conviction, or order of supervision, or sentence of probation without entry of judgment pursuant to [certain enumerated criminal statutes].”
55 ILCS 5/5-1103 (West 2008) .
¶ 28 Defendant also claims that the imposition of the $10 county jail medical fund fee was unauthorized because he required no medical attention during custody. See
“An arresting authority shall be responsible for any incurred medical expenses relating to the arrestee until such time as the arrestee is placed in the custody of the sheriff. However, the arresting authority shall not be so responsible if the arrest was made pursuant to a request by the sheriff. When medical expenses are required by any person held in custody, the county shall be entitled to obtain reimbursement from the County Jail Medical Costs Fund to the extent moneys are available from the Fund. To the extent that the person is reasonably able to pay for that care, including reimbursement from any insurance program or from other medical benefit programs available to the person, he or she shall reimburse the county.
The county shall be entitled to a $10 fee for each conviction or order of supervision for a criminal violation, other than a petty offense or business offense. The fee shall be taxed as costs to be collected from the defendant, if possible, upon conviction or entry of an order of supervision. The fee shall not be considered a part of the fine for purposes of any reduction in the fine.
All such fees collected shall be deposited by the county in a fund to be established and known as the County Jail Medical Costs Fund. Moneys in the Fund shall be used solely for reimbursement to the county of costs for medical expenses and administration of the Fund.”
730 ILCS 125/17 (West 2008) .
¶ 29 We initially note that the current version of the statute, set forth above, is the result of an amendment to the statute which occurred approximately one month prior to defendant‘s offense. The prior version of the statute provided, in relevant part:
“All such fees collected shall be deposited by the county in a fund to be established and known as the Arrestee‘s Medical Costs Fund. Moneys in the Fund shall be used solely for reimbursement of costs for medical expenses relating to the arrestee while he or she is in the custody of the sheriff and administration of the Fund.”
730 ILCS 125/17 (West 2006) .
This court has analyzed this prior version of the statute and held that it applied to defendants who did not incur medical costs while under arrest. See People v. Jones, 397 Ill. App. 3d 651, 663 (2009). In Jones, 397 Ill. App. 3d at 662, this court reasoned that the prior version of the statute did not place any conditions on the county‘s right to the fee and that the last sentence of the statute quoted above indicated that the county could use the $10 fee for
¶ 30 In Public Act 95-842, effective August 15, 2008, the legislature amended section 17 of the Act. Pub. Act 95-842, § 5 (eff. Aug. 15, 2008) (amending
¶ 31 In this case, defendant‘s offense occurred on September 11, 2008, after the effective date of the amendment. Therefore, the current version of the statute, set forth above, applies in this case. Prior decisions have considered the statute when it contained the language “reimbursement of costs for medical expenses relating to the arrestee while he or she is in the custody of the sheriff” and when the fund was titled “Arrestee‘s Medical Costs Fund” and found that a defendant could be charged the fee even if he did not incur medical costs while under arrest. By replacing that language with the current version of statute, the amendment makes it clear that the fee is to be collected irrespective of whether a defendant incurs injury or requires treatment while in custody and supports the analysis of this court‘s prior decisions on this issue. Accordingly, we follow our holdings in Jones and Hubbard and find that defendant was properly assessed the $10 county jail medical fund fee.
¶ 32 Defendant further claims, and the State concedes, that he is entitled to presentence credit toward two of the fines imposed against him by the trial court. The record shows that defendant was assessed a $10 mental health court fee (
¶ 33 Accordingly, pursuant to Supreme Court Rule 615(b)(1) (Ill. S. Ct. R. 615(b)(1)), the $5 court system fee and the $200 DNA assessment are vacated. We order that the mittimus be corrected to reflect a credit of $40 toward the imposed fines which, along with the vacatur of the $5 court system fee and the $200 DNA assessment, reduces defendant‘s monetary judgment from $580 to $335.
¶ 34 Affirmed in part and vacated in part; mittimus corrected.
¶ 36 On appeal, defendant asked this court to vacate one of his two convictions on the ground that the possession of a single loaded firearm cannot serve as the basis for multiple convictions.
¶ 37 I must dissent, because I agree that we must vacate one of defendant‘s two convictions. I reach this conclusion based on our legislature‘s amendment, enacted in response to our supreme court‘s decision in People v. Carter, 213 Ill. 2d 295 (2004).
¶ 38 This is a case of first impression; neither the court nor the parties found another case interpreting and applying the 2005 amendment. Pub. Act 94-284, § 10 (eff. July 21, 2005) (amending
¶ 39 The majority finds that the Illinois Supreme Court‘s decision in Carter presented an issue, which was then resolved by a statutory amendment. The majority finds that the amendment is not ambiguous and thus our job is done. However, the Carter case actually presented a number of different issues, which were not resolved by the subsequent amendment. Once one realizes the different issues involved, the ambiguities in the amendment become apparent.
¶ 40 In Carter, during a search of defendant‘s vehicle, the police recovered weapons and ammunition.4 Carter, 213 Ill. 2d at 298. As a result of this one incident, defendant was charged with four separate counts of unlawful possession of a weapon by a felon. Carter, 213 Ill. 2d at 298. The four counts were for: (1) an unloaded .22-caliber handgun; (2) a .25-caliber handgun; (3) the ammunition clip that was attached to the .25-caliber handgun; and (4) a clip for the .22-caliber handgun, that was found near the .22-caliber handgun, but that was not attached to it. Carter, 344 Ill. App. 3d at 664-65.
¶ 41 The Carter case thus presented at least three potential issues: (1) whether the simultaneous possession of two firearms constituted one offense or two; (2) whether the possession of a loaded handgun constituted one offense or two; and (3) whether a loaded handgun presented a different issue than an unloaded handgun with a clip nearby.
¶ 42 The Carter court found that, under the version of the statute that applied to the facts
¶ 43 The subsequent amendment states that: “[t]he possession of each firearm or firearm ammunition in violation of this Section constitutes a single and separate violation.”
¶ 44 In other weapons laws, the legislature has carefully drawn distinctions among: (1) a “loaded” firearm; (2) an “unloaded” firearm where “the ammunition for the weapon was immediately accessible“; and (3) an unloaded firearm without immediately accessible ammunition.
¶ 45 The ambiguity inherent in the statute becomes clear when we consider the phrase “each *** ammunition.”
¶ 46 The majority suggests that, if we hold that a loaded firearm represents only one offense, our holding would have the absurd result of encouraging convicted felons to carry their guns loaded. If a holding that a loaded firearm is a single offense would lead to an absurd result, then there is absurdity no matter which way we interpret this amendment. As already discussed above, one firearm with a clip attached could lead to dozens of offenses. If there is ambiguity in a criminal or penal statute, we are required to interpret it in the defendant‘s favor. Carter, 213 Ill. 2d at 301 (“Criminal or penal statutes must be strictly construed in the defendant‘s favor ***.“).
¶ 47 Since I decide this issue based solely on statutory construction, I do not reach any possible constitutional questions, such as whether the statute violates the one-act, one-crime rule. People v. Quinones, 362 Ill. App. 3d 385, 397 (2005) (multiple convictions “based on the same act, specifically, defendant‘s possession of the firearm” “cannot stand under the one-act, one-crime doctrine“). “One-act, one-crime principles apply only if the statute is construed as permitting multiple convictions ***.” Carter, 213 Ill. 2d at 301. Our supreme court has “repeatedly stated that cases should be decided on nonconstitutional grounds whenever possible, reaching constitutional issues only as a last resort.” In re E.H., 224 Ill. 2d 172, 178 (2006); People v. Melchor, 226 Ill. 2d 24, 34 (2007).
¶ 48 Since the amendment is ambiguous, I find that only one offense is permitted for a single loaded firearm, and I would vacate one of defendant‘s two convictions. Defendant did not ask this court to remand for resentencing; otherwise I would also have ordered it.