*1 ILLINOIS, Plaintiff-Appellee, THE THE PEOPLE OF STATE OF RODRIGUEZ, Defendant-Appellant. HECTOR (4th Division) No. First District 1 — 04—3546 Opinion filed November 2005.
QUINN, P.J., dissenting. Velkme, Michael J. Appellate Pelletier and Laila M. both of State Office, Chicago, appellant. Defender’s for (James Devine, A. Attorney, Chicago Richard State’s Fitzgerald, E. Wil- Toffenetti, Borg, liam Attorneys, counsel), Paula Assistant State’s for People. JUSTICE GREIMAN opinion delivered the of the court: Following trial, a bench Rodriguez defendant Hector was found guilty of possession of a controlled substance and was sentenced to years three in prison. On appeal, defendant contends that he is entitled a to new trial because the record does not indicate that he knowingly and intelligently waived his right of confrontation attorney when his stipulated proper that a chain of custody was maintained over the items recovered from defendant and that the positive items tested the presence of cocaine. Defendant further contends that the court’s order, 9—1.1(c) pursuant entered to section of the Unified Code (the Code) (730 9—1.1(c)(West Corrections 2004)), ILCS he 5/5 — to the Spinal Injury Paralysis Cord Cure Research Trust Fund (the Fund) Research violates his process rights rationally because the related the offense of aof controlled substance. trial, At Officer Marad Haleem testified at p.m. on Febru- ary 14, 2004, a Ford Aerostar minivan driven past defendant drove his marked car. Officer taillight Haleem observed that the minivan’s was broken and pulled gas parking minivan over into a station lot. Officer Haleem approached the driver’s side of the minivan and asked produce defendant proof his driver’s license and of insurance. Officer Haleem asked produce Defendant could either document. get of the minivan and As Of- complied. that defendant out defendant walking defendant back to Officer Haleem’s ficer Haleem and were car, bags. three small Officer Haleem squad dropped cocaine, crack ar- bags, suspected recovered the which he contained squad in the of his car. placed rested defendant and back Meanwhile, partner walked to the minivan in Officer Haleem’s had officers ar- passengers backup several were still seated. When which rived, remaining out of the van and to passengers were ordered put top squad of Officer Haleem’s car. Officer Hal- their hands on the police transported dropped the items that defendant had to the eem station, gave them to the desk where he inventoried them and sergeant. that, called, Pat parties stipulated if forensic scientist Junious- kept in testify dropped would that the items defendant were
Hawkins their contents tested custody chain of at all times and that proper positive presence for the of cocaine. finding for a directed was denied.
Defendant’s motion that she testified in defendant’s case in chief Jackie Betancourt p.m. in the minivan at 10 people and five other were with defendant station from February They going gas 2004. were on front Stephanie Ayala was buy cigarettes. house to defendant’s *3 the back of minivan. Defendant had while Betancourt was in the seat of the gas of the station and was outside pulled parking into the lot up. One officer talking police pulled to a friend when a car minivan they going were passengers to the and asked the where up came van A named David Van “talked they doing. passenger what and were out passengers the officer ordered the to the officer. Thereafter back” squad the place them to their hands on of the minivan and instructed except Ayala. observed Everyone Betancourt car. was handcuffed police her The arrested doing something with hands. Ayala the to leave. passengers and allowed other and David Van mini- passengers in the was one of seven Ayala testified that she 14, to the February group The had driven evening of 2004. van on the into the mini- candy. got she gas buy cigarettes to and When station After van, three of crack cocaine. possession had in her rocks Ayala gas station, police approached group arrived at the had defendant was Ayala not remember if behind. could minivan from by approached he was of minivan when already standing outside put to the minivan and passengers were ordered exit police. The searched. Before handcuffed and squad on a car and were their hands cocaine, which she searched, bags of threw her three she Ayala was Ayala A referred hands, squad car. man under holding her was arrested, subsequently were and the as David Main and defendant that remaining Ayala were to leave. testified she passengers allowed did see did not what anyone bags recover the cocaine know of became them. testimony court remarked that defendant’s witnesses’ guilty
inconsistent and incredible and found defendant of considering mitigation of a arguments controlled substance. After years in aggravation, the court sentenced defendant to three fees, prison. Defendant was also ordered to various fines and including which was directed Research Fund. appeal,
On defendant first contends that his federal and state rights constitutional confrontation were violated the record because is any devoid of attorney legal indication that his informed him of the consequences entering stipulation composition as to the recovered substance and as to the of custody. chain People 203, (2003),
In Campbell, v. 208 Ill. 2d 220-21 our supreme court held:
“[Clounsel in a may criminal case waive his client’s sixth amend- ment right stipulating confrontation to the admission of long object evidenceas as the defendant does or dissent from attorney’s decision, his and where the decision to stipulate matter legitimate prudent trial tactics or trial strategy. Where stipulation includes a statement the evidence is sufficient to convict the defendant where the entire State’s case to be presented by stipulation, person- we find that a defendant must be ally stipulation personally agree admonished about the and must stipulation.” People In v. Phillips, (2004), 352 Ill. App. appeal al lowed, (2005), 213 Ill. a panel interpreted 2d 571 of the Third District Campbell holding to require showing “some affirmative indica tion by the object the record that he or she did not to or dissent from attorney’s stipulate.” Scott, decision to App. (2005), 3d 741 panel another of the Third District found Phillips misinterpreted had Campbell, concluded record need not affirmatively show that defendant was informed explicitly rights. of this panels waived his confrontation Several have agreed Orta, district with See 3d 342 Scott. *4 (2005); Foerster, (2005); Banks, People v. Ill. 198 App. 359 3d App. 358 Ill. 3d 924 case,
In this on the that nothing record indicates objected to the to chain of stipulation composition as the chemical and custody of the forensic stipulate recovered items. The decision to 48 testimony strategy weight a matter of the
chemist’s was trial because the items were not contested and the and nature of recovered because defendant, Ayala, pos defense at trial was instead that rather than Scott, (stipulation at to App. sessed the items. See 355 Ill. 3d as weight strategy nature recovered items was matter of trial and weight and nature were not contested and defendant because defense); Orta, App. (stipulation alibi 3d at 351 presented an strategy nature of recovered items was matter of trial weight as defense weight because and nature were not contested defendant’s possession drugs). that was not in actual or constructive of the he Furthermore, not the stipulation stipulated did indicate that present nor the State evidence was sufficient convict defendant did stipulation. Accordingly, find that through its entire case that defendant’s requirements Campbell have been satisfied and rights confrontation were therefore violated. process rights next contends that his due were violated
Defendant pay he to the Spinal when was ordered to Research the fund to which the assessment is directed does Fund because of a relationship a to the offense of bear reasonable controlled substance. responds punitive, rather than State and, therefore, in should characterized as
compensatory, nature be Wilson, Citing “fee.” “fine” rather than a that, therefore, relationship (1986), argues particular no the State fine are proceeds the fund for which between the offense and required. earmarked is defendant, under Wilson, driving had been convicted of who alcohol, him to requiring influence of contended a statute fund fund and a violent crime victim’s
fines a driver’s education for process rights purposes because the violated his did to the of- funds were earmarked not bear rational court appellate she convicted.1 The noted fense of which had been setting the nature granted substantial discretion court noted: penalties the extent of for criminal conduct. The of a decision of a court of review which are unaware “We is earmarked for penalty from a fine or fact that serving governmental has affected particular purpose fund *** at- has called to our validity penalty. of the fine or No case been *** which[,] here, penalties are earmarked as fines tention Wilson, parties agreed educa that the assessments to driver’s 1 In fees, opposed were fines as fund the violent crime victim’s fund tion taxes costs.
49 particular relationship required has to exist a fund and a been imposed is to be between the offense for which fine use Wilson, Ill. 3d at 295. App. made of the fund.” 144 from distinguished The court the case before it cases in which fees or that, particular purpose, noting a in those taxes were earmarked for cases, relationship required. Accordingly, a reasonable the court process. found that the fines did not the dictates of due violate that, if responds relationship The State further even a reasonable required, between the offense and the fund is the use of because accidents, likely primary controlled substances is a cause of automobile injuries, primary spinal which are the cause of cord assessment reasonably Research Fund is related to offense of of possession a controlled substance. replies statutory language of
Defendant and nature as- legislature’s regarded sessment reflect the clear intent that it be as a Nonetheless, argues, fee. even if the assessment is deemed a fine, legislative subject because all enactments are to the dictates of process, it must still bear a reasonable relationship to the offense for which is imposed. it
Because we agree with defendant intended that the assessment be fine, treated as a fee rather than a need disputed address of issue whether the use of the of a fine must bear a reasonable to the offense for which the fine imposed. is
Our
requires
determination of the nature of the assessment
us to
9—1.1(c).
interpret
language
of section
The cardinal rule of
statutory interpretation
is
give meaning
to ascertain and
(2001).
legislature’s
336,
People
intent.
v.
Ill. 2d
Maggette, 195
348
legislative
best means
determining
intent is to consider the statu
tory language.
statute,
Maggette,
“As means of legislative case law has examined the substance of various assessments to determine whether ” they nearly are more or or People Bishop, ‘fines’ ‘fees’ ‘costs.’ v. 354 (2004). App. 549, 3d 562 A “fine” is a pecuniary punishment imposed upon part a defendant as of his criminal sentence. (2003). Littlejohn, App. 281, 338 Ill. A charge 3d 283 “cost” is a taxed by court, fee, fee, filing a such as a a jury reporter a courthouse fee or a (2002). White, fee. 777, “fee,” 333 Ill. App. 3d A on the hand, other charge services, is a or especially professional for labor White, rather, services. App. punitive; 333 Ill. 3d at 781. A fee is not it is consequence a collateral of a defendant’s conviction which is Elizalde, People v. 344 Ill. compensatory App. in nature. language, “an assessment’s interpreting statutory substan nearly more ‘fíne’ or a ‘fee’ or ‘cost’ being tive character as only probative legislative relevant the extent it is intent. as a legislature’s designation Also relevant ” ‘fine,’ ‘fee,’ Elizalde, or ‘cost.’ 3d at 682. provides: Section 5 — 9—1.1 “(a) drug of- person adjudged guilty has of a related When been delivery possession or involving cannabis or fense *** delivery by the substance a fine shall be levied of controlled at not than the full value of the cannabis court less street controlled substance seized.
(b) (a) any of imposed In under subsection penalty addition to Section, court, by proceeds this a fine of shall be levied $100 by be and remitted to of which shall collected Circuit Clerk *** ***. Center Fund deposit Treasurer for into Trauma State (a) (c) any of In under subsection penalty imposed addition to Section, court, the by be this fee of shall assessed $5 by the and remitted to of which shall be collected Circuit Clerk *** Injury deposit Spinal for into the Cord State Treasurer fee of shall Paralysis Trust Fund. This additional $5 Cure Research any reduction part purposes of the fine for of not be considered sentencing.” after in the fine for time served either before or (West 2004). ILCS 5/5—9—1.1 Bishop, In recently construed a similar statute.
This court drugs. driving of under the influence of convicted to pursuant was ordered to and assessments $5 $100 (c 7) 9—l(c—5) in Code, provided, of the sections — 5— part: relevant “ ‘[(c 5)] (c), by to the fines subsection imposed In addition — supervision of for any person receiving an order convicted or drugs pay an ad- of alcohol or shall
driving under the influence fee, This additional less ditional fee to the clerk. $100 2Va% by the incurred defray used administrative costs shall be to clerk, within by be the clerk the Treasurer shall remitted Fund. days deposit for into the Trauma Center receipt after part of the of shall not be considered This fee $100 additional any in the fine for time served purposes fine of reduction for ***’ sentencing. either before or after (c), ‘[(c 7)1 by subsection imposed to the fines addition — for receiving supervision an any person order convicted pay an ad- drugs shall influence of alcohol or driving under the fee, ditional fee the clerk. This less shall $5 additional 2½% clerk, defray by be used to administrative costs incurred by days shall the Treasurer within 60 be remitted clerk to Paralysis receipt deposit Spinal after into the for Cure Research Trust Fund. This additional fee of shall not be $5 any part of the fine for in the purposes considered fine reduction ” sentencing.’ Bishop, time before after served either 561-62, 9—l(c—5), quoting 354 Ill. 3d at 730 ILCS 5/5 — 2002). (c 7) (West — quoted provisions Because were not in effect at the time offense, defendant’s imposition the defendant contended that the pursuant provisions ex post assessments those was a violation of appellate against post laws. The court noted that the ex “ban facto applies only nature, laws laws are it punitive does facto costs, not apply to compensatory which are 354 Ill. Bishop, nature.” App. 3d at provisions, noting: 561. The court examined the plain
“The language of the If statute refers to both as ‘fees.’ these ‘fines,’ ‘fees’ were meant to be considered legislature’s then the decisionto call meaning. Elizalde, them ‘fees’would have no As in ‘fee,’ this language, repeated its use of the word indicates an part intent on the the legislature an assessment made under 9—l(c—5) (c 7) sections be treated as a fee and anot fine. — Therefore, [Citation.] the fees assessed to defendant under sections 9—l(c—5) (c 7) compensatory, nature, are punitive 5— and are not — subject post to ex Bishop, violations.” facto App. 3d at 562. case, In this recognize that the has inexplicably labeled the assessment to the Trauma Center Fund in section 9—1.1(b) a “fine” and labeled the *7 5— Cord Research Fund a “fee” in the contested subsection while 9—l(c—5) (c 7). both labeling assessments “fees” in sections 5— — However, we legislature’s assume that the the labeling of assessments (c) plain language deliberate and observe that the of subsection of Furthermore, section 5—9—1.1 labels the assessment a fee. we are $5 the by arguments unconvinced State’s the legislature intended the assessment to be treated as a fine because $5 section 5—9—1.1 (730 falls under 9 chapter article of of the V Code ILCS 5/5—9—1 (West 2004)), “Fines,” through 5—9—3 is which entitled and because the is imposed only assessment on defendants who have been Notably, impose convicted. other 9 falling statutes under article also fees, opposed fines, as to on only those defendants who are convicted of example, requires crimes. For 5—9—1.4 defendants section drug-related laboratory convicted of a offenses to “criminal 9—1.4(b) (West 2004). analysis fee 730 Accord- ILCS $100.” 5/5 — 52 statute,
ingly, pursuant plain language we conclude that the to as a fee legislature the intended that be treated will treat it as such. and we therefore here,
Where,
challenges
legislative
as
a defendant
á
enactment
right,
appropri
that does not affect a fundamental constitutional
the
Lindner,
is
rational
v.
127
ate standard of review the
basis test.
(1989).
test,
174,
legislation
Ill.
To
basis
2d
179
survive the rational
legislature
the
the
reasonably designed
remedy
must be
to
evils that
health,
public
safety
general
has
welfare.
determined threaten
(2005);
481,
114
Sharpe,
People Upton,
216 Ill. 2d
531-32
(1986).
362,
test,
applying
identify
Ill.
In
“we
2d
373
rational basis
protect,
that the statute
intended to
examine
public
interest
interest,
bears a reasonable
to that
whether
statute
to protect
whether the method used
or further that
and determine
Lindner,
who are the of domestic As [Citation.] defined statute, any family domestic violence can occur between then, [Citation.] household members. surprisingly, Not there is no requirement recipients be of the services either married or Nevertheless, legislature petitioners divorced. for dissolution of chose tax on
marriage
funding
as a means of
the shelters and
programs.
arbitrary
consider this
an
We
choice
be
use of the
police power,
“Keeping off the roads drivers who have committed offenses not
involving vehicles is
a not
reasonable means
ensuring
that the
roads are
operate
free of drivers who
unsafely
vehicles
illegally.
contrary,
To the
arbitrary,
means chosen are
only
because
specified
the offenses
prescribing
[the
statute
automatic revoca
vehicles,
tion] have no connection to motor
but also because the
arbitrary.
inclusion of those offenses and no
is,
others is
That
no
suggests
why
reason
itself as to
particular
chose the
statute],
offenses
opposed
[in
enumerated
as
to other offenses
involving
Lindner,
a vehicle.”
For above-stated affirm the Fund and Research pay a fee judgment. remainder of the trial court’s part. part; reversed Affirmed J.,
MURPHY, concurs. dissenting: QUINN, JUSTICE PRESIDING has failed to I would hold that respectfully I dissent. (730 9—1.1(c) ILCS section establishing that his burden of meet 5— (West 2004)) 9—1.1(c) presumed are Statutes is unconstitutional. 5/5 —
55 constitutional, duty construe a chal reviewing and a court has a lenged a upholds validity statute in manner that its and constitutional ity Malchow, 413, if reasonably it can be done. 193 Ill. 2d analysis majority’s thorough makes it clear that if the $5 9—1.1(c) required by “fee,” a opposed section is “fine” as to a recognized by majority, section is constitutional. As “the granted is setting substantial discretion in nature and the extent penalties 48, citing App. for criminal conduct.” 362 Ill. 3d at (1986) (“We Wilson, are unaware of deci sion of a court of review which the from fact fíne or penalty is earmarked for a fund particular serving governmen tal purpose validity has affected the or penalty”). fine
Reading section
5—9—1.1 as whole
demonstrates
its
language
ambiguous.
part
chapter
Section 5—9—1.1 is
V of the
Corrections,
Unified Code of
chapter
“Sentencing.”
entitled
*10
(West 2004).
730 ILCS
chapter
Article of9
this
is entitled
5/5—9—1.1
2004).
(West
Further,
“Fines.” 730 ILCS
5—9—
section
5/5—9—1.1
1.1 imposes charges
upon
only
those
a felony drug
convicted of
of
Thus,
fense.
the holding
Finley,
(1984),
in Crocker v.
completely inapposite. Crocker struck
a filing
required
down
fee
on all
litigants filing
petitions,
dissolution
finding
the fee was burden
litigation
some
Zehnder,
tax. In Arangold Corp. v.
Based
I believe that section
may reason
ably be
constitutionally
construed as a
permissible fine and therefore
this court has duty
uphold
so construe it and
validity. People
its
Malchow,