*1
above,
As we stated
Bailey,
541 U.S. 158 L. Ed. S. Ct. we bound Belton, ruling. holdings in this Under of Thornton officers justified conducting case were a search of the defendant’s vehicle rule, therefore, incident erred as to his arrest. We that the trial court by denying grant- a matter of law State’s motion to reconsider ing the suppress defendant’s motion to the evidence.
CONCLUSION reasons, foregoing judgment For the we reverse the of the Will County proceedings. circuit court remand the matter for further
Reversed and remanded.
LYTTON, EJ., CARTER, J., concur. ILLINOIS, THE Plaintiff-Appellee, PEOPLE OF THE STATE OF ROWELL, Defendant-Appellant. L. HOWARD Fourth District No. 4 - 04-0481 Argued Opinion Rehearing October filed December 2006. 2006. January denied 2007. *2 STEIGMANN, EJ., specially concurring. Ryan (argued), Appellate
Daniel D. Yuhas and Martin J. both of State Office, Springfield, appellant. Defender’s (Norbert Yoder, Attorney, Goetten, Bloomington
William A. State’s J. Biderman, (argued), Attorneys Robert J. and Thomas R. Ewick all of State’s Appellate Office, counsel), People. Prosecutor’s for the
JUSTICE COOK opinion delivered the of the court: March after a stipulated bench the trial court found defendant, Rowell, L. guilty Howard of retail property having theft of *3 (720 3(a) (West 2004)). a exceeding retail value $150 ILCS 5/16A— Defendant judgment or, filed a motion for acquittal of in the alterna- tive, motion in judgment, arrest of and the court denied the motion. In May the court sentenced defendant to 30 probation. months’ Defendant appeals. affirm in part, part, We vacate and remand with directions.
I. BACKGROUND August 26, 2003, On charged defendant was with the misdemeanor (720 1(a)(2) (West 2002)). by offense of theft deception ILCS 5/16 — The information alleged product that defendant sold belonging store employer, (EB), to his Boutique kept money Electronics and 22, 2003, himself. On September charge the theft-by-deception September 25, 2003, dismissed. On the State filed an information charging felony defendant with the offense of retail theft items valued at over alleged July The information that between $150. August 25, 2003, knowingly computer took 15 electronic games EB, establishment, valued over from a retail mercantile $150 with the intent permanently deprive the merchant of the use or benefit of the property paying without the full retail value. On 3, 2003, 2,” December the State filed an information labeled “count again charged felony retail theft from EB. Count which defendant with original II that the stolen was similar to the information but added knowingly items Brand and defendant were 15 “Xbox Video Games” games “during continuing these a course of conduct.” took 26, 2004, January requested On defense counsel a bench parties may proceed indicated the on evidence. The trial jury defendant as to his to a trial. Defendant admonished right and of the indicated he understood his tendered a written waiver right to a jury trial.
On March held a trial. At the trial court bench agreed willing defense counsel with the State that defendant was following: police reports, by three a written statement given EB, summary games of the cost of the that were EB, by defendant, and the fact videotaped stolen from statement reports that EB is a retail mercantile establishment. The outlined the manager management EB had following reported facts. The defendant, selling suspected employee, stealing games, an them to friends, suspicions, its pocketing proceeds. the sale To confirm defendant, loss-prevention from sold an purchase officer made who confronted, pocketed money. item at a reduced When price manager that he loss-prevention defendant admitted to the officer games games stole for himself and sold at reduced rates to friends and EB kept money. gave then Defendant a written outlin- statement ing his thefts. present any additional
Defense counsel stated would argument. reports evidence. The trial court read the and asked for argued defendant’s statement State written showed guilt games. theft of the 15 video acknowledged games, he had taken about worth of and a store argued that employee listed the amount at Defense counsel $430.85. presented dispute factual and directed the court to count the case no dismissed, II. I had not and defense The court noted that count been argument applied count. Counsel then responded to either information, II, II’s particularly stated count is flawed. Count “continuing reference to a course of conduct” is not authorized that the the evidence showed is “a bunch argued statute. Counsel most misdemeanors, improperly I felony. not a believe games had been charged pointed here.” Counsel to the fact that prove that a series of dates and that the State could not taken over *4 responded that games taken in one transaction. The State were games” EB was “somewhat phrase “during employment his into said that the officer went telling on that issue.” The State also during videotaped taking defendant was items the details of how under advisement. The court took the matter statement. 24, 2004, order,
On March the trial court entered an without explanation, convicting defendant April on count II. On judgment or, defendant filed a motion for acquittal in the alterna- tive, judgment. motion, motion in arrest argued defendant that the improperly aggregated State games by alleg- value of the ing that the individual games “during thefts of the were continuing course of required conduct” when what is proof that the acts were “in single furtherance of a design.” intention and argued that the prove and, evidence did not a single design best, intent or the evidence showed only multiple intents games, to take the which were individually valued at less than Defendant claimed he $150. should acquitted Also, be of the felony charge. defendant contended that the charging instrument was allege defective failure to specific state, felony mental in furtherance of a single intention and design, charge so the did not state an offense.
On May 2004, the trial responded court to defendant’s motion follows, “Well, the court issue, looked at that and I believe there is some case directly law that supports ruling that, the court’s on the motion will be denied.” The court sentenced defendant to 30 probation months’ and 120 days jail days with 30 to be served away and the balance to be stayed pending review. court also ordered defendant pay $430.85 restitution to EB and imposed the following fees, fines, and [deoxyribonucleic costs: “$200 acid (DNA)], fee, draw $10 [Violent $20 Crime (VCVA)], Victims Assistance surcharge, $20 state[-]police $4 fee.” Defense requested counsel also public-defender fee, which granted the court without discussion. May 26, 2004,
On the trial granted the State’s motion to dismiss count I. This appeal followed.
II. ANALYSIS On appeal, presents First, nine issues for review. argues felony conviction must be reduced to a misdemeanor because the prove State failed to separate individual thefts were single furtherance of a design. intention and Second, conviction must be vacated because the information allege failed to defendant’s conduct was in furtherance of single design intention and and defendant prejudiced by this Third, failure. defendant’s conviction must be vacated because he was (177 pursuant admonished Supreme Court Rule 402 Ill. 2d R. 402) and he was not stipulations admonished about the before his bench which was tantamount to a guilty plea of misdemeanor retail Fourth, theft. defendant is entitled to days’ two sentence credit and a $5-a-day credit for time applied served to be *5 Fifth, reimburse- imposed by the trial court.
against penalty a $4 the court failed counsel fees should be vacated because ment order for Sixth, entering the fee order. the restitu- hearing conduct a before by the value of the recovered been reduced tion amount should have $40, the Seventh, county-board fee should have been games. video $100, filing, not the amount al- at the time of the amount allowed test- Eighth, the DNA $10 at the time defendant was convicted. lowed fee,” surcharge, penalty and the should not fine ing $20 $4 “draw Ninth, storage of defendant’s the extraction and have been ordered. to be free from unreason- his fourth-amendment DNA violated able searches and seizures. Concessions
A. First, defendant is following concedes the issues. The State applied credit to be days’ credit $10 entitled to two sentence hold a Second, the trial court failed to penalty imposed. against $4 pay the reimbursement ability defendant’s hearing to determine fees, be vacated and we should order for counsel so that order should Third, fee should be hearing. DNA-processing remand for a $10 these conces vacated, surcharge. agree We with as should the $20 sions. August released August arrested on 25 and
Defendant was misdemeanor September for misdemeanor theft. argues he felony charge. Defendant replaced was dismissed days spent custody in sentencing credit for the two is entitled to pursuant to subsec charge. agrees The State the misdemeanor Code) (Corrections 8—7(c) Unified Code of Corrections tion of the 5— (730 8—7(c) (West 2004)), is entitled to two ILCS 5/5— charge arrested on one “[a]n states that offender days. provision This prior occurred charge for conduct which prosecuted on another *** custody in spent for time given [sentence credit] his arrest shall be sentence.” 730 against not credited another charge under the former 2002). 8—7(c)(West charge, which felony-theft Because ILCS 5/5— sentence, replaced the misdemeanor resulted in a conviction Woznick, days. See defendant is entitled to the two charge, (noting 8—7(c) applies that section commentary demonstrates council 5— original charge is charge one and the is arrested on when the offender results conviction charge of a new dropped favor imprisonment). fee offset state-police the $4 is also entitled to have of 1963 Procedure of the Code of Criminal section 110—14
because Code) (Criminal on a bailable person incarcerated “[a]ny provides offense who does not supply against bail and whom a fine is levied on conviction of such offense be day shall allowed a credit of for each $5 so upon application incarcerated of the defendant.” 725 ILCS (West 2004). imposed Because the fee pursuant to sec $4 5/110—14 9—l(c—9) (730 9—l(c—9) tion of the Corrections Code ILCS 5— 5/5 — (West 2004)) fine, it should be $5-per-day offset credit. See People Jamison, Ill. App. 782-83, 850-51
The trial court ordering also erred in pay defendant to court-appointed counsel fees without conducting hearing first on 3.1(a) ability pay pursuant to section 113— 3.1(a) (West 2004). Criminal Code. 725 ILCS The Illinois 5/113 — Supreme Court has held that “section 113—3.1 requires that the trial *6 court conduct a hearing into a defendant’s financial circumstances and find an ability pay to may before it order the defendant to pay reimbursement for appointed Love, counsel.” People 550, v. Ill. 2d 177 (1997). 563, 687 case, N.E.2d 38 In this the court ordered defendant pay to in counsel fees any $200 without discussion. Because the court failed hearing, to conduct a we vacate the reimbursement order and remand to the trial court a hearing to determine defendant’s abil ity pay. People Roberson, See v. App. 798, 803-04, 335 Ill. (2002) 1148-49 (remanding hearing for a on the defendant’s ability pay counsel fees where the notice requirements followed, were not given was not the opportunity evidence, and the record did not indicate the trial court considered affidavit). defendant’s financial
Finally, the trial court a imposed $10 DNA-draw fee. This court has already determined that such a fee is not authorized statute. People Hunter, 1094-95, 831 N.E.2d 4—3(a) (holding that neither section nor section 5—4— 5— (730 3(j) of (West 2004)) the Corrections Code 4—3(a), ILCS (j) 5/5— authorizes a trial court require a pay defendant to of DNA cost collection). The court erroneously also imposed a surcharge $20 under 9—1(c) 9—1(c) section of the Corrections Code. 730 ILCS 5— 5/5 — (West 2004). 9—1(c) Section every adds to fine imposed for a 5— criminal offense “an additional penalty $40, for each $5 or fraction thereof, 9—1(c)(West 2004). of fine imposed.” 730 ILCS Because 5/5— no imposed, fines were fines, let alone the trial $160 court was not authorized to impose surcharge. The $10 DNA-draw fee and $20 surcharge are vacated.
B. Sufficiency of the Evidence argues felony that his retail-theft conviction must allege or the State failed a misdemeanor because be reduced to single of a intention in furtherance prove that his conduct was to convict evidence was sufficient design. responds The State a reasonable doubt. beyond retail theft defendant of that the standard of review argues that defendant Initially, we note State, The dispute. are not in because the facts should be de novo facts namely, however, dispute, is a factual whether claims there games on individual took the an inference that defendant support If a factual design. single to a intention impulses pursuant or sufficiency of the evidence exists, review the dispute this court should unreasonable, improbable, is “so by looking at whether the evidence guilt.” of defendant’s unsatisfactory justify a reasonable doubt or (1999). Smith, Ill. 2d People v. evidence, the the entire bench trial consisted While defendant’s conduct the evidence as to whether showed parties debated separate transactions. For or a series of to one transaction amounted facts determination, to evaluate the this it had the trial court to make could be inferred. single transaction and conclude whether presented error, court must this reviewing defendant’s contention court’s conclusion supports the trial whether the evidence determine Supreme Court be inferred. Illinois single transaction could “[wjhether of a acted in furtherance the defendant noted that has is a single crime design and thus committed single intention and the case.” at the trial of fact to be established question of Because we Brenizer, 111 Ill. 2d rise to an infer undisputed give facts could looking are whether intent, a factual we review specific had a ence that defendant appropriate. review is determination, sufficiency-of-the-evidence felony retail theft this guilty prove To *7 property was over $150. the amount of stolen must show that State 2004). 10(3) (West stole 15 In this defendant 720 ILCS 5/16A— six weeks. This period a of less than over games $49.99 all worth of a series thefts, may have constituted which otherwise series of is al single felony “when it thefts, charged as a may be misdemeanor design single intention and of a in furtherance leged that the acts were Brenizer, at single of a owner.” property obtain the 2004). 4(c) (West For the 865; also 725 ILCS see 5/111— that the prove it had to guilty felony, prove defendant State to and single a intention in furtherance of theft multiple acts of were design. or at the instrument allege charging in the failed to
The State single “in of a acted furtherance that defendant bench trial mistakenly argued that Instead, the State design.” intention At “continuing a course of conduct.” defendant’s actions amounted to course of argued “continuing that correctly the defense counsel counsel went on to not an element of the offense. Defense conduct” is of misdemeanors and argue only that the State had series shown taking the felony. one After mat- had not shown defendant committed advisement, did under trial determined that defendant ter the court felony series of misdemeanors. When opposed commit one as to a pointed posttrial out for first time motion defense counsel the element, allege single-intention-and-design that the failed to the State determining that the stated that it considered issue felony. committed single- properly charge argue While the State’s failure to intention-and-design felony disturbing, element of the evidence supports a single nonetheless the inference that defendant acted with design. games employer intention and Defendant the 15 from his took during employment days. Also, span approximately his over the of charged thefts, games with these admittedly while sold money. times prices pocketed at reduced Defendant stated “[he has] he stole because didn’t money problems and think about the consequences spread along would come with this.” Defendant out types these two different of thefts over the six to seven weeks that he EB, had been employed likely manage- which made it less ment missing money would notice the and merchandise. argues that the that he the games fact stole over six games
weeks shows that the were taken as the of number of product individual all impulses couple and that had he taken them within a of days, single plan stronger. the inference that he had a would be evidence, though, just as clearly money shows that defendant had systematically troubles and he small money stole amounts of employer during merchandise from employment his most of his in a likely manner that was suspicion. Stealing games less to raise all at couple days once or within a would have much been more likely noticeable and raise immediately sup- alarm. The evidence ports the games period inference that defendant stole the 15 over a single design time with stealing games intention and desired raising suspicion. without too much The fact he was simulta- neously stealing games pocketing money during time as short employee supports an a single the inference that he had intention and design to steal he could his employer. whatever from
Despite correctly the State’s argue failure to elements theft, proved court was of what needed to be aware Further, posttrial hearing. based on its claim in the motion because unreasonable, improbable, unsatisfactory evidence is not so or *8 430 guilt, justify a doubt of defendant’s we will reverse
to reasonable felony conviction. C. The Instrument Charging his must felony Defendant claims retail-theft conviction be allege to because the information filed State failed an vacated prejudiced felony retail theft and defendant was essential element of by the error. above, in the properly allege stated the State failed to informa-
As the essential that defendant’s mental state was act tion element II, design. of intention the count of single furtherance a Count convicted, 15, 2003, July on or alleged which defendant that about 25, 2003, $150, through August defendant committed retail theft over 3(c) felony 3 of of the Criminal Code a Class violation section 16A— (720 3(c) (West 2004)): ILCS of 5/16A— conduct, knowingly “In of he during continuing that a course took games, possession fifteen XBOX video which were items of brand [EB], retail merchandise offered for sale at ment, a mercantile establish- deprive permanently with merchant the intent said merchandise, paying possession, use or benefit of said without merchandise, having full retail of said said merchandise a value exceeding value $150.” challenge timing charging
“The a defendant’s instrument significant fails to state an offense been considered has his determining a defendant is entitled to reversal of convic whether ground.” Benitez, 169 Ill. 2d 661 N.E.2d tion on that (1996). challenges instrument charging for When in the charg time an error the first after commencement only require reversal where the error was ing instrument will 79, 86, Cuadrado, People v. 214 Ill. prejudicial.
(2005). “ ' standard, charge will be sufficient if it prejudice Under the precise charged sufficient
“apprised the accused of offense resulting pleading defense allow convic specificity prepare prosecutions arising bar out of the same con tion as a to future ’ ” 86-87, Cuadrado, quoting 214 Ill. 2d 824 N.E.2d at duct.” Benitez, quoting People 2d at 661 N.E.2d at Gil more, in that agree we the information was deficient
While charging in the instrument an element of- allege State failed fense, single design” intention namely, the “in furtherance of a element, prejudice. has find defendant not shown we of the fact element, apprised defendant was
Despite missing in merchandise stealing theft over he faced retail was worth less game EB. knew that each stole from $50, link than so the State the individual thefts to would have II, prove felony. Further, when added count it was clear the State State was “continuing from the course of conduct” addition they focusing on were all aggregating the individual thefts to show *9 minimum. clearly linked in to get order above the Defendant knew that the State had to show that the individual thefts were es- knowledge apparent sence one theft. Defendant’s is as defense counsel argued language at “continuing trial course of conduct” was argued incorrect and State had not shown that the individual any thefts were in way linked. Defense counsel stated that the most misdemeanors, felony.” the evidence showed was “a bunch of a not therefore, essentially argued, Defendant State not had shown and could a single felony not show occurred. prejudiced claims was at nevertheless he trial because he “continuing
while knew the was language course conduct” incor- rect, he argue could not the lack of “in a single- furtherance of intention-and-design” not evidence because he did know about the single First, and design intention element. it is not clear how defense prepared differently counsel would have precise had he known the missing language. argued Defendant already only that the evidence a showed felony. series misdemeanors and not one is the same This argument Also, he makes in his appeal. suddenly now defense counsel realized that “in furtherance of a and single design” intention was an element after defendant argument was convicted he included that posttrial able, therefore, motion. Defendant to present was his argument court, trial to the and the trial court had opportunity to vacate the missing-element argument. conviction based on the ruling motion, In posttrial on the court stated that it considered the single-intention-and-design element dismissed defendant’s posttrial motion. prejudiced by
Because defendant was not charging the deficient instrument, affirm we his conviction.
D. Admonishments If this court does not vacate defendant’s conviction based on instrument, insufficient charging evidence or an insufficient defendant claims we must vacate trial did the conviction because the court (177 admonish him according Supreme to Illinois Court Rule 402 Ill. 402) trial, 2d R. stipulated at his he bench which claimed was guilty tantamount theft. plea Alternatively, of misdemeanor personally defendant was not about the proceeding admonished State entirely stipulations on stipulations agreement and his was not obtained court.
432 to a
First,
trial
not tantamount
stipulated
bench
was
should
guilty plea
arguing
402 admonishments. In
requiring Rule
admonished,
Davis,
points
People
have been
(1997).
arguing against
In
the admonish
In a defendant’s Supreme Court of Illinois reviewed was not stipulated two bench trials and determined that one trial was guilty plea to a but the other trial was. Defendant tantamount robbery, violence, aggravated battery charged armed armed stipulated in both first bench defense counsel trials. closing argu stipulated to the State’s evidence and commented convict, but also ments that the evidence was sufficient have presented preserved a defense that should lineup. suppress arrest granted quash defendant’s motions Horton, 14-16, Ill. 2d at 321-22. The court held N.E.2d if the stipulated guilty plea “a bench trial not tantamount Horton, Ill. 2d at presented preserved a defense.” hold, that the though, at 325. The court went on to despite guilty plea bench trial tantamount to a second *10 preserved a defense because presented the fact that defendant and to sufficiency “in the of the stipulated defense counsel fact to evidence Horton, original.) 143 Ill. 2d at (Emphasis convict.” in at 325. stipulated sufficiency the of
In defense counsel never to this only reports, to stipulated to convict. Defense counsel the the evidence statement, confession, EB a retail and fact that was written video most argued that “at this evidence mercantile establishment. Counsel “I can of and think the State shows a bunch misdemeanors” don’t Further, presented in counsel prove they were taken all one chunk.” convict preserved a that evidence was insufficient to defense the prove State could not charged defendant of the offense because the not the State could defendant stole items worth over because $150 any way in taken all at once or games show the worth under were argued charging linked. the instrument was counsel also that Defense “continuing course of conduct” defective because it included the language. charges Davis, to facts on the two stipulated
In
defense counsel
the
the
vehicle when
usage
operating
lane
motor
improper
of
of
the influence
driving
license
revoked for
under
the
the State informed
object
counsel did not
when
alcohol. Defense
driv-
guilty
he was
of misdemeanor
that the defendant admitted
guilty
he is not
of
contended that
ing
only
license revoked
while
Davis,
felony driving
App.
while
286 Ill.
3d at
license revoked.
acknowledged
In Davis, argue defense counsel did not that the facts were insuf- ficient to of guilty establish the defendant was rather Instead, argued than the misdemeanor. defense counsel the statute interpreted felony. could not be case, convict the defendant of a this essentially defense counsel argued the evidence was not suf- ficient to show that defendant at took 15 items once or taking lumped together items could be to reach the $150 minimum. Unlike Davis where the issue was how the statute should interpreted, be this issue case was whether the facts an support charge. were sufficient element of the Because defendant did stipulate sufficiency not to the of the convict, sufficiency evidence contested the the evidence convict charged, presented defense, preserved crime the trial required court was not to issue Rule admonishments.
Defendant, citing People Campbell,
(2003), argues,
alternative,
in the
that this court
must
personally
reverse because
defendant was
admonished about
the fully stipulated bench
did not personally agree
trial and
to the
stipulation. In Campbell,
agreed
defense
stipulation
counsel
concerning
facts
a material
On
testimony.
appeal,
witness’s
argued
right
that his constitutional
be
confronted with his accuser
was denied
agreed
when his defense counsel
to stipulate to the
testimony
primary
of the State’s
Campbell,
witness.
After the went to state: the court on stipulation “Where the includes a that the evidence is suf statement ficient to convict the defendant or the entire case is to where State’s presented by person stipulation, be we find that a defendant must be ally stipulation agree about personally admonished the must to stipulation.” the at Campbell, 208 Ill. at N.E.2d 1215. argument this to support
Defendant relies on statement the personally trial court had to admonish him and obtain his consent to the stipulation. opinion, though, the Earlier in the court stated that case, appellate “correctly recognized the in this when the State’s court presented by stipulation case be and the does entire is to [citation], a present preserve stipulation not or or where the defense a includes statement the evidence is sufficient to convict the defendant, due[-]process stipulation implicates the fundamental only by personally.” and can the defendant concerns be waived added.) 1213. (Emphasis Campbell, 208 Ill. 802 N.E.2d at again opinion, Supreme later the Court Illinois noted that a necessary are not if case is not admonishments “the State’s entire stipulation, present preserve the defendant does or a presented by defense, stipulation and the does not include a statement that the original.) People is (Emphasis evidence sufficient convict.” Ill. 2d Phillips, 217 preserve
As we noted this defendant did argued that the evidence was sufficient defense. Defendant not charging him the and that was felony convict the instrument stipulation, case presented by deficient. the State’s entire was While concerning stipulations need to admonished defendant did not be trial presented preserved because he defense and guilty plea not to a retail theft. was tantamount E. Restitution Amount argues imposing erred in the trial court games the retail of the stolen restitution amount reflected value games crediting against the value of the recovered video without restitution amount. 5—6(b) provides that the trial Section of the Corrections Code 5— *** in kind and for property
court “shall allow credit for returned defendant; by granting and after property ordered to be restored credit, out-of-pocket expenses, the court shall assess actual losses, injuries damages, suffered the victim named 5—6(b) (West 2004). gave charge.” ILCS Wfhile defendant 5/5 — any is indication that games police, stolen the record devoid Further, EB. does not the merchandise was returned to record that the presented with evidence establish that the EB out-of- games any or reduced EB’s actual returned had value value, any or of defense games Had the been returned pocket losses. As the presented such the court. have evidence counsel should credit, remand court failed to allow does not indicate that the record appropriate. the restitution issue on *12 County-Board F. Fee in argues applying circuit clerk erred the court fee, county between the county-board the fee set the board $100 conviction, $40, of I rather the fee filing count and defendant’s than responds set at the I was filed. The that defendant time count State argument by filing of not a postsentencing has forfeited review this Further, appropriate the fee argues $100 motion. State the was against the not until a court enters because fee is assessed a defendant judgment him. If defendant does not against acquitted, before pay. have this because the fee increase occurred II, II count count was filed before defendant was convicted on the appropriately charged clerk the fee increase that was ef at the agree fect time of the on count II. We the State. conviction against September
Count I filed was defendant on 2003. On County October the the McLean board increased fee for felony complaints from against II filed $40 $100. Count was defendant on December 2003. The fee increase became effective January 2004. Defendant found of II March guilty was count on County 2004. The McLean originally typed circuit clerk’s office $40 filing the fee but later changing wrote over the the amount $100.
Defendant assumes that filing the determinative date for the fee 27.1a(w)(l) the date the first count was filed. Section the Clerks (Clerks Act) of Courts Act “[t]he states that clerk shall be entitled to costs in all quasi-criminal criminal each person cases from 105/27.la(w)(l) (West 2004). costs, convicted.” 705 ILCS The therefore, are filing through incurred from the initial the conviction and are not assessed until the defendant is convicted. The costs are simply incurred at the filing stop. initial and then The costs cover filings through all up the conviction. Because the fee is not assessed against judgment against defendant until the court enters defendant, required the fee at the time should apply assessment as that would “all cover costs” from the “person convicted.”
G.
Storage
DNA Extraction
Section
requires
5—4—3 of the
all felons
Corrections Code
saliva,
a specimen
blood,
submit
or tissue to the
State Police
Illinois
(West
4—3(a)
2004).
computer databases. 730
Supreme
ILCS
5/5 —
Court of
recently rejected
argument
compulsory
Illinois
storing
extraction
and perpetual
under
section 5—4—3
DNA
against
violates
felon’s
fourth-amendment
unreasonable
Garvin,
searches
seizures.
Ill. 2d
People v.
III. CONCLUSION conviction, stated, we affirm defendant’s the reasons For order; modify fee, and the DNA amount, county board restitution to be and a credit days’ $10 sentence credit to reflect two the sentence DNA-processing imposed; vacate against penalty $10 applied $4 fee; and remand with surcharge; $200 vacate fee an amended fee and issue hearing on the counsel directions to hold a sentence. judgment of direc- cause remanded with part; and vacated part
Affirmed *13 tions.
MYERSCOUGH, J., concurs. STEIGMANN, concurring: specially JUSTICE
PRESIDING case, I in this opinion court’s fully agree I with the Although regard- suggestions concerns about —and express concur to specially cases. stipulations in criminal ing law on —Illinois STIPULATIONS IN ILLINOIS LAW ON OF I. AN ANALYSIS CRIMINAL CASES Background A. (2002), 218 Ill. 773 N.E.2d App. v. People Campbell, to a trespass criminal defendant, been convicted of who had constitutional he had been denied his residence, argued appeal on because, know him absent his against confront the witnesses right to testimony key of a State consent, counsel ing defense defense counsel that, exceptions, with two This court held witness. knowing a defendant’s testimony without prosecution to stipulate can strategy matter of trial stipulate is a the decision to because consent arise exceptions The two judgment. counsel’s sound defense within (1) to be entire case is when the State’s following situations: under the (2) a state stipulation includes stipulation or when presented by Camp convict the defendant. sufficient to the evidence is ment that af supreme court at 223. The bell, Ill. 3d at on the regrettably—not judgment, Fourth District’s firmed the but — agree following: “We wrote the Instead, supreme basis. same right of confrontation waive a defendant’s may that defense is a to and the decision object does long as *** appel affirm We therefore strategy. trial tactics matter the admis stipulate to may defense counsel finding that late court’s right to client’s constitutional waive his thereby of evidence sion added.) Ill. 2d at Campbell, (Emphasis confrontation.” 1213. at B. The Supreme Court’s in Campbell Discussion
Decisions
Belonging Personally to
In Campbell, the supreme court addressed whether the decision to
stipulate to certain State’s evidence is one of those decisions that
belongs personally to the criminal
began
defendant. The court
its
analysis by discussing its
Ramey,
decision in
People
152 Ill. 2d
(1992),
“In
Ramey,
(1992),
‘Beyond
decisions, however,
these four
trial counsel has the
right to make the ultimate
respect
decision with
to matters of
tactics and strategy after consulting with his client. Such mat
ters include
call,
what witnesses to
whether and
how conduct
cross-examination,
jurors
what
accept
or strike and what trial
motions should be made. [Citation.] Such matters also include
presented
defense to be
Ramey,
54[,
trial.’
C. The “As Long As” Clause of Campbell After discussing Ramey Broeksmith, the Campbell court took 438 when defense defendant’s role addressing in approach
a different and Brock- Ramey In of evidence. stipulates to the admission counsel decisions that apart from the five smith, held that supreme the court defendant, has decision- defense counsel to the belong personally Campbell, In consulting the defendant. with making authority after question of whether however, it comes to the court held that when decision-making author evidence, has defense counsel stipulate to object the decision does not long as the defendant ity “as added.) (Emphasis strategy.” of trial tactics stipulate is a matter Thus, Camp at 1213. under 2d at 802 N.E.2d 208 Ill. Campbell, authority to enter clause, counsel has long as” defense bell’s “as (1) the things happen: of two unless one binding stipulation into a (2) concludes reviewing the trial court or objects or to the level of does not rise decision to that counsel’s at 1213. Ill. 2d at 802 N.E.2d strategy. Campbell, tactics “As As” Clause Long Prong Campbell’s Objection 1. The Prong First Interpreting Campbell’s a. Cases (2004) App. 3d People Phillips, v. Camp prong the first IP), interpreted the Third District (Phillips charged the defendant was In that long as” clause. bell’s “as trial, and defense prosecutor At her drug several offenses. laboratory reports in evidence of the admission The labora drugs at issue. weight of the establishing identity testify at drugs did not weighed tested and tory technician who showing that the no the record contained but the defendant’s by stipulation. reports the lab the admission of objected to Third at 568. The II, App. Ill. 3d at Phillips conviction, rejecting her the defendant’s initially affirmed District had right of her stipulation violated of the the admission claim N.E.2d 946 People Phillips, confrontation. I). 208 Ill. 2d However, People Phillips, in (Phillips that deci (2004), Illinois vacated Supreme Court of N.E.2d 1066 its Third District to reconsider the cause and remanded sion On Campbell. court’s decision supreme light judgment conviction, remand, Third District reversed as follows: explaining right [of confronta- constitutional
“Construing fundamental Campbell, decision supreme court’s conjunctionwith the tion] in sixth[-]amend- waive the defendant’s in order to conclude that we to the admission by stipulating confrontation right of ment indication showing or evidence, be some affirmative there must *15 dis- object to or did not he or she in the record that defendant *** stipulate. attorney’s decisionto from the sent *** requirement voluntary, knowing[,] intelligent [T]he of a and waiver object stipulat is inherent defendant’s election not to *** ing and there needs to be some evidence in the record that knowingly right waived [his confrontation]. That is to say[,] he or right she was advised of the to confront witnesses and of the legal impact waiving right through nature and of the proposed stipulation, objected and either concurred with or (Emphasis original.) II, it.” Phillips App. 352 Ill. 3d at N.E.2d at 570-71.
The Third District then considered the record it in light before interpretation its Campbell and concluded as follows:
“[A]
review
record in the
nothing
case discloses
(or
that demonstrates
suggests)
attorney
even
that the
explained to
[the defendant]
generally
what decisions were
made
him absent
or,
objection
her
more specifically,what a stipulation
legal
is and its
impact,
to,
he
what
intended to
implications
and what the
were
stipulating
specific
data in the
reports.
lab
A failure
provide
the defendant with that basic
deprives
information
her
meaningful
of a
opportunity
objection.
to make a reasoned
Nor is
there any representation by
attorney
to the court that he
discussed these matters with his client and
object.
she did not
In a
situation such as the one suggested by nothing more than the
objection
absence
record,
of an
in the instant
the defendant would
have needed a combination of
rudimentary
some
understanding of
(which
legal
concept
stipulation
we do not believe can be
assumed)
fairly
enough
luck to ‘alert’ to the word in the course
of the trial. Such a
proposition simply
hit[-]or[-]miss
cannot result
in either
objection
a reasoned
knowing
or a
voluntary assign
right
ment of her
to waive
attorney,
confrontation to her
and we do
not believe that it was the
supreme
intent of our
court to validate a
complete disregard of a defendant’s interest in this constitutional
right.”
II,
Phillips
3d at
Since Phillips several decisions from the First and Third Appellate District rejected Courts Phillips court’s approach have held that the record need affirmatively not show that of, defendant was informed explicitly waived, his confrontation- clause rights. In each appellate court concluded that supreme Campbell court’s did require decision such an affirmative showing. Scott, See People 355 Ill. App. (2005) (in Appel the Third District panel a different from which *16 misinterpreted Campbell)-, II court Phillips held that the
late Court 928, (2005); Banks, 924, 926, App. Ill. 3d 833 N.E.2d People v. (2005); Foerster, App. Ill. 3d 833 N.E.2d v. People 350-51, 818-19 Orta, App. 3d 836 N.E.2d People v. 47-48, (2005); 362 Ill. 839 N.E.2d People Rodriguez, (2005). 546-47 Phillips Third in reversed the District supreme court has now In expressed therein. rejected appellate
II
the
the
and
concerns
III),
the
(Phillips
at 1205
Even (when discussing (2006), supreme court 1225-28 admonitions, informing him any, if a defendant must receive what instruction) a lesser-included-offense personal right his to seek about III. Campbell Phillips decisions both in reaffirmed its Prong Objection Further Discussion of the b. follow, I conclude that respectfully For the reasons likely prove will dealing stipulations standard for with supreme court’s unworkable. may supreme
In court wrote that defense Campbell, the the defendant long confrontation as right a defendant’s waive 1213. Ill. 2d at 802 N.E.2d at object. Campbell, 208 does not object. if does However, happens the defendant unspoken left what of his trial words, objection trump the decision In does his other Campbell, at issue? Under to the evidence counsel to “yes.” appears to be answer five decisions regard approach makes sense
Such an cases, the defendant’s In such belonging to the defendant. personally contrary. For counsel to the position of defense trump any wishes right to decide whether instance, personal possesses a defendant his decision if trial counsel believes stand even his to take the witness having jury defendant can insist on Similarly, be unwise. (or trial) a bench if his to be even trial counsel believes decision unwise.
However, in situations which the issue is one addressed to trial defendant’s, judgment, approach counsel’s not the such an makes no instance, case, sense. in Ramey, death-penalty For murder presented against defendant’s trial counsel a defense of self-defense wishes, yet supreme concluding, client’s court affirmed. so (ABA) the court cited the American Bar Association standards justice provide criminal that trial counsel has the to make respect strategy, ultimate decision with matters of tactics consulting after Ramey, 53-54, with his client. 152 Ill. 2d at (2d 281; 1 §4 ABA Standards for Supp. Criminal Justice ed. —5.2 1986). did Ramey “consulting not indicate much how with his client” occurred, defense counsel did in that but however much it was apparently enough persuade the defendant that his counsel’s strategy was correct.
Following supreme in Ramey, court’s decision Illinois courts *17 review repeatedly have reiterated how trial counsel is in total control except of the case Ramey for the decisions identified belonging to See, instance, Reid, the defendant. 297, 310, People v. 179 Ill. 2d (1997) (“Decisions 688 N.E.2d concerning 1162 which witnesses to call at trial and what present [the] evidence to on defendant’s behalf ultimately counsel”); Hamilton, rest with trial People v. 361 Ill. App. (2005) 836, 847, 3d 838 N.E.2d 170 (“Generally, decisions concern ing which witnesses to call and which evidence to on a defendant’s behalf are viewed as matters of trial strategy”); People v. (2004) Patterson, 1044, 1054, 347 Ill. App. 3d 808 N.E.2d 1167 (“The decision whether to call particular witnesses and the manner and extent of cross-examination are trial strategy matters of and thus ordinarily support will not an claim”); ineffective-assistance-of-counsel 539, 546, McKinney, 1288-89 (1994) (an attorney’s decision as to how or whether to cross-examine a witness is generally strategy); a matter of trial People Campbell, (1992) (trial Ill. App. counsel is charge questions of what prospective jurors during to ask voir dire examination).
Although, Ramey stated, as the court a defendant’s trial counsel should no doubt regard “consult[ ] with his client” with to matters of strategy tactics and (Ramey, 281), 152 Ill. 2d at (or neither Ramey any nor of the foregoing any cases others I have found) any defendant, is there stating hint that the objection his actions, his Yet, counsel’s thereby trump entitled to them. is exactly Campbell what objection seems to hold —that a defendant’s strategic stipulate decision to to some of the State’s
his trial counsel’s trumps counsel’s decision. evidence
Nothing stipulation practice special elevates it for treat about Instead, stipulate ment. the decision whether to should be seen as may be merely important judgments one of several defense counsel during Surely, make trial. this decision is no more upon called (1) cross- important than the decision about how—and whether —to (2) which, witness; any, if defense examine a State the decision about call; questions what to ask the witnesses to or the decision about And, testify. my judgment, the deci defendant should he choose to important rather than the deci sion whether to seems less Yet, defense to assert at defendant’s trial. all of the sion about what counsel, belong exclusively to defense and his deci foregoing decisions prevails objection. Ramey, even over the defendant’s See sion 2d at N.E.2d at 281. its problematic aspect objection prong
Another is that or in form the defendant language specify does not whom what “object” object. example, must For is it sufficient for Or, objection to the his defense counsel? does he have to raise an trial court and on the record?
Last, objects that if a defendant although Campbell appears to hold objection trumps counsel’s stipulate, to his counsel’s decision to decision, requirement no that either strategic Campbell contains trial make the defendant aware that defense counsel or the only Thus, objection prong protect seems to possesses power. this knowledge bring to their trial sufficient those few defendants who counsel, they, to understand that not their have procedure criminal regarding stipulations. final authority Trial-Strategy Prong or Legitimate-Trial-Tactics 2. the “As As” Clause Long long provides “as as” clause prong Campbell’s The second stipulate be a matter of tactics trial counsel’s decision to However, N.E.2d at 1213. *18 strategy. 208 Ill. 2d at Campbell, sup how—trial courts are did not indicate whether —and Campbell is, That should a trial court sua prong. to address this second posed of stipulate decision to is a matter sponte challenge whether counsel’s apparent to the trial strategy immediately if it is not trial tactics course, have to raise this the trial court would why this is so? Of is whom defense counsel prosecutor, because the with sponte issue sua raising appear it. And if it does not will not be offering stipulate, trial is a matter of that counsel’s decision the trial court inquiry should—or must —the sort of strategy, tactics and then what rejecting stipulation? before court make Questions the conduct defense of whether counsel constitutes strategy usually appropriate subjects matter of trial not tactics or are judicial scrutiny good reason. Trial courts know —and charge against generally only the defendant but a minimal have understanding likely present of the evidence both sides will at trial. especially beginning proceedings, This is true at the when the trial position judge acceptance court is no whether the of an of- stipulation fered constitutes trial strategy. tactics or trial Perhaps the most problem legitimate-trial- fundamental with the trial-strategy prong ask, tactics or this: is Trial courts never should ask, not strategy go- cannot know what defense counsel’s trial ing However, to be. stipulation represents to determine whether a legitimate matter strategy, may the court be forced at some point to ask defense counsel explanation for an unless the circum- stances And, at trial made the reasons stipulation for the obvious. if so, the court determines it must do should it ask defense counsel on Further, the record? if the court does if inquire prosecutor so (as obvious), cannot be seems then does not the discussion constitute an improper parte otherwise ex conversation? only I am situation familiar with in reviewing which trial and
courts upon are called to evaluate the reasonableness of a defense counsel’s trial strategy tactics or trial is if the defendant raises the is (either conviction, sue in the trial court after on direct appeal, or postconviction petition) However, of ineffective assistance of counsel. circumstances, under these the defendant has waived his attorney-client privilege, party proceedings either can call testify regarding trial counsel to what did why he O’Banner, did it at People defendant’s trial. See App. v. 215 Ill. 3d And, course, over, 575 N.E.2d the case is still being litigated.
aWhen defendant raises an claim ineffective-assistance-of-counsel appeal, many on direct courts have often declined to resolve that is sue, defendant, instead, directing the a postconviction petition, file subject so that a record can be regarding made of trial counsel’s handling holding explained they of the case. Courts so wish have speculating Kunze, to avoid from a silent record. See v. 193 Ill. (1990) (claims App. 3d 550 N.E.2d of ineffective as proceedings petition sistance of counsel are often better made in on a postconviction relief, made); complete where a record can be see 1121, 1141-42, People Durgan, App. also (reaffirming declining 1249-50 Kunze and to address on appeal direct trial counsel’s failure certain suppress to move to evidence); People Cameron, *19 (2003) (reaffirming declining address Kunze on direct trial
appeal request jury whether counsel’s failure to certain instruc assistance); tion In re Carmody, constituted ineffective (1995) (noting that the record on direct appeal rarely any explanation of a criminal case contains tactics holding that, trial if subject those tactics are to be the scrutiny, a developed they effectively record should be which can reviewed). be
Yet, context, nothing stipulation appears when the trial explain stipulate, complying record to defense counsel’s decision to prong long require with the second of the “as as” clause will review- ing regarding courts to what motivated trial counsel speculate whether, stipulate. Those courts must somehow further decide under the circumstances of the decision counsel’s was a matter of strategy or trial tactics. Stipulations Epilogue
D. I progeny length have discussed and its at some as I Campbell respectfully suggest supreme long that the court revisit the “as as” decided, years Campbell many opinions clause. the few since addressing stipula- have been issued the matter of defense counsel’s (2) objection by tion at trial in the absence of an the defendant and any concerning admonition the trial court to the defendant large particular stipulation. opinions point This number of on a of law surprise, given stipulations in such a short time comes as no oc- great frequency frequency, cur with in criminal trials. Because of this bright-line the criminal trial bench and bar need a rule on counsel’s authority stipulations. They need to to enter into know whether —like the decisions about what defense to or which witnesses to stipulate solely resides in defense power call—the to decide whether to whether, jury like the decision trial or counsel. Or whether waive testify, solely the decision to lies with the defendant personally. approach Campbell’s long The new “as as” clause does guidance they and bar the need. provide the criminal trial bench
I that the decision to prefer supreme would for the court to decide However, if stipulate belongs to defense counsel without caveats. otherwise, At the criminal supreme concludes so be it. least then stipulation proposed bench and bar would know whenever suspend proceedings, admonish the the trial court needs to agree about his not to personally on the record finding agrees) make a (assuming and then the defendant stipulation, knowingly right to intelligently waived his that the defendant has object proposed stipulation.