THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID L. SAVAGE, Defendant-Appellant.
Fourth District No. 4-03-1065
Appellate Court of Illinois, Fourth District
Argued July 26, 2005.—Opinion filed October 31, 2005.
361 Ill. App. 3d 750
APPLETON, J., specially concurring.
Jack Ahola, State‘s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Jason P. Young (argued), all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In July 2003, a jury convicted defendant, David L. Savage, of unlawful possession of a controlled substance with intent to deliver (
The shakedown was conducted after the Macon County State‘s Attorney‘s office informed the sheriff‘s department and jail officials that Supreme Court Rule 415(c) (
Defendant appeals, arguing (1) the trial court erred when it denied his motion for relief from prosecutorial misconduct, (2) the enforcement of Rule 415(c) against only indigent and incarcerated defendants violates equal protection, (3) he is entitled to a $1,405 credit against his street-value drug fine pursuant to section 110—14 of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (
In December 2002, defendant was charged with unlawful possession of a controlled substance with intent to deliver (
Defendant‘s motion alleged the search of inmate cells and the confiscation of the State‘s pretrial-discovery answers and police reports was improper because it impaired his ability to be effectively represented by his counsel and constituted an interference with the attorney-client relationship. Specifically, he maintained the actions taken were improper because (1) Rule 415(c) does not prohibit defense counsel from transferring custody of the State‘s answers to pretrial discovery to a client; (2) the State‘s Attorney‘s office had no authority to direct or request that the jail conduct a shakedown and confiscate the State‘s pretrial-discovery answers; and (3) documents including “notes, attorney correspondence, legal research, and other private papers” were confiscated during the shakedown.
Testimony at the hearing on defendant‘s motion indicated that sometime prior to the shakedown, the State‘s Attorney‘s office became aware that defense attorneys in Macon County were providing copies of the State‘s pretrial-discovery answers, and specifically police reports, to their clients. Immediately prior to the search and seizure at issue, they also became aware of instances of witness intimidation that they suspected were based upon information contained in police reports in the possession of jail inmates. The State‘s Attorney‘s office interpreted Supreme Court Rule 415(c) (
The State‘s Attorney‘s office sent letters to defense attorneys believed to be violating Rule 415(c). The letters requested the attorneys retrieve police reports that had been left in the possession of their clients in violation of Rule 415(c). They also entered into discussions with individuals from the sheriff‘s department and the jail to decide how to deal with inmate possession of police reports and the State‘s pretrial-discovery answers in general. Through these discussions it was decided that a shakedown of the jail would be conducted
Assistant State‘s Attorneys Jack Ahola and Tamara Wagoner were present for the shakedown but did not enter into any inmate cells. During the shakedown, correctional officers went into the cells and searched for police reports and contraband in general. When the officers had questions about whether a particular document should be seized, they directed their inquiries at either the assistant jail superintendent or one of the assistant State‘s Attorneys. These three individuals only conducted cursory inspections of the documents they were shown and did not read any of what was written on them. Once material was seized from a cell, it was put into a manila envelope with the inmate‘s name written on the outside. The envelopes were then signed by the assistant jail superintendent and given to Ahola and Wagoner. Approximately 250 to 260 inmates were in the jail when this particular shakedown occurred and roughly 40 of them had documents confiscated.
The confiscated documents were held in the State‘s Attorney‘s office. The envelopes containing the confiscated documents were only opened at the request and in the presence of defense attorneys who wanted to inspect their contents. Shortly after the shakedown, defense attorneys were informed they could obtain their client‘s seized materials by signing a statement acknowledging the requirements of Rule 415(c) and agreeing not to return the seized documents to their respective clients. Some attorneys complied, signed the document, and received their client‘s confiscated documents back. Other attorneys, including defendant‘s counsel, refused, and the confiscated documents were not returned.
Finally, several individuals who were incarcerated when the shakedown occurred testified as to what documents had been taken from them. Besides the State‘s pretrial-discovery answers and police reports, the witnesses testified that other seized items included notes taken in preparation of defense, letters or paperwork from their attorneys, legal papers in general, and legal research. Further, some of the confiscated police reports or pretrial-discovery items had inmates’ notes on them. Additionally, one witness testified that another inmate‘s police report was taken from his cell. Defendant has not alleged that anything other than discovery answers and police reports was taken from his cell.
After taking the matter under advisement, the trial court denied defendant‘s motion. In a lengthy docket entry, the court concluded
In July 2003, defendant‘s jury trial was held and he was convicted of unlawful possession of a controlled substance with intent to deliver pursuant to section 401(a)(2)(D) of the Controlled Substances Act (
In September 2003, the trial court denied defendant‘s posttrial motion and sentenced him to a term of 25 years’ imprisonment and imposed a street-value fine of $96,070. Additionally, the court ordered defendant be given credit for 281 days previously served from November 29, 2002, to September 5, 2003. On September 8, 2003, the court‘s written judgment order was filed stating defendant was convicted of unlawful possession of a controlled substance pursuant to section 402(a)(2)(D) of the Controlled Substances Act (
On September 30, 2003, defendant filed a postsentencing motion, arguing only that his sentence was excessive. In December 2003, the trial court denied defendant‘s postsentencing motion.
This appeal followed.
II. ANALYSIS
A. Prosecutorial Misconduct
On appeal, defendant argues the trial court erred in denying his motion for relief from prosecutorial misconduct. Specifically, he contends he was deprived of his right to effective assistance of counsel when the State‘s Attorney‘s office (1) usurped the role of the trial court by imposing its own interpretation of Supreme Court Rule 415(c) (
Since the facts of this case are not disputed and this issue involves only questions of law, our review is de novo. People v. Bracey, 213 Ill. 2d 265, 270, 821 N.E.2d 253, 256 (2004).
1. Interpretation of Rule 415(c)
Defendant first contends it was error for the State‘s Attorney‘s office to unilaterally interpret Supreme Court Rule 415(c) (
Supreme Court Rule 415(c), entitled “Custody of Materials,” provides as follows:
“Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide.”
134 Ill. 2d R. 415(c) .
Further, the committee comments for Rule 415(c) state:
“If the materials to be provided were to become, in effect, matters of public availability once they had been turned over to counsel for the limited purposes which pretrial disclosures are designed to serve, the administration of criminal justice would likely be prejudiced. Accordingly, this paragraph establishes a mandatory requirement in every case that the material which an attorney receives shall remain in his exclusive custody. While he will undoubtedly have to show it to, or at least discuss it with, others, he is not permitted to furnish them with copies or let them take it from his office.”
134 Ill. 2d R. 415(c) , Committee Comments at 357.
A State‘s Attorney has several powers and duties, including acting as an attorney and legal advisor for county officials with respect to all official-business matters. Ashton v. County of Cook, 384 Ill. 287, 297, 51 N.E.2d 161, 166 (1943). Section 3—9005(a)(7) of the Counties Code (
Additionally, the Illinois Administrative Code (Administrative Code) provides for “[r]andom, unannounced, irregularly scheduled
In Bell v. Wolfish, 441 U.S. 520 (1979), the United States Supreme Court was called upon to determine the constitutionality of various confinement conditions for pretrial detainees. This court has previously cited portions of Bell that discussed general principles which informed the Bell Court‘s analysis of conditions of pretrial confinement when ruling on the reasonableness of a jail policy regarding strip searches. People v. Calvert, 326 Ill. App. 3d 414, 422-23, 760 N.E.2d 1024, 1031 (2001).
“[B]ecause the problems that arise in the daily operation of a corrections facility are not susceptible to easy solutions, prison administrators ‘should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ ” Calvert, 326 Ill. App. 3d at 423, 760 N.E.2d at 1031, quoting Bell, 441 U.S. at 547.
Finally, this court has also held that a defendant does not have a constitutional right to read discovery materials and an attorney‘s decision as to whether to provide his or her client with such materials is a matter of trial strategy and is within counsel‘s discretion. See People v. Davison, 292 Ill. App. 3d 981, 988-89, 686 N.E.2d 1231, 1236 (1997) (defense counsel‘s refusal to allow a defendant to read discovery materials does not amount to ineffective assistance of counsel).
Here, defendant contends the State‘s Attorney‘s office acted improperly when it orchestrated a shakedown of the jail during which pretrial-discovery materials in the possession of inmates were confiscated. However, a review of the record reveals the actions of the State‘s Attorney were not inappropriate and instead constituted the fulfillment of his official duties. A State‘s Attorney, as an advisor to county officials, is permitted to give his or her opinion as to matters of official business. In this case, the State‘s Attorney believed Rule 415(c) was being violated by defense counsel who transferred custody of discovery materials to their clients within the jail. Further, it advised the sheriff‘s department and jail officials as to the violation and a possible solution to prevent further violations.
Moreover, nothing in the record suggests anyone from the State‘s Attorney‘s office ordered the shakedown at issue. Instead, testimony
Jail officials are permitted to establish regulations and policies for jail operations beyond the minimum standards already required by statute (
Although defendant argues the State‘s Attorney‘s office should have first sought resolution of this issue with the trial court, a State‘s Attorney should not be required to seek permission of the court prior to fulfilling the duties of his office. These duties exist independently of the court.
2. Seizure of Privileged Communications
Defendant also contends the attorney-client privilege was violated during the shakedown when privileged attorney-client communications were seized and held in the State‘s Attorney‘s office. He maintains this invasion of the attorney-client privilege was a violation of his sixth amendment right to effective assistance of counsel.
The sixth amendment to the United States Constitution guarantees effective assistance of counsel for criminal defendants.
B. Equal Protection
Defendant next argues that Rule 415(c) violates equal protection because no rational basis exists for its distinction between pro se defendants, who are allowed to possess pretrial-discovery materials, and those represented by counsel, who are not allowed to possess such materials. Additionally, he contends the enforcement of Rule 415(c) in this case violated equal protection because action was taken against only incarcerated defendants and not those defendants who were able to post bond and get out of jail.
The guarantee of equal protection requires that similarly situated individuals be treated similarly. People v. Breedlove, 213 Ill. 2d 509, 518, 821 N.E.2d 1176, 1182 (2004). However, the drawing of distinctions among different categories of people in a rule or statute is not completely forbidden, so long as the distinction that is made is proper. Breedlove, 213 Ill. 2d at 518, 821 N.E.2d at 1182. Where a distinction has been drawn, and the rule or statute involved does not affect a fundamental right or involve a suspect class, a rational-basis test must be satisfied. Breedlove, 213 Ill. 2d at 518, 821 N.E.2d at 1182.
Under the rational-basis test, a reviewing court must determine whether the means employed by a rule or statute to achieve its stated purpose are rationally related to that goal. Breedlove, 213 Ill. 2d at 518, 821 N.E.2d at 1182. A court‘s review under the rational-basis test is limited and deferential. Breedlove, 213 Ill. 2d at 518, 821 N.E.2d at 1182. Further, a rule or statute “carries a strong presumption of constitutionality and must be sustained if any set of facts can reasonably be conceived to justify the classification.” Breedlove, 213 Ill. 2d at 518-19, 821 N.E.2d at 1182.
Selective enforcement of a rule or statute that is based upon unjustifiable standards or arbitrary classifications also violates equal protection. City of Champaign v. Sides, 349 Ill. App. 3d 293, 300, 810 N.E.2d 287, 295 (2004). However, if the rule or statute is rationally
Here, defendant contends Rule 415(c) creates an unlawful distinction between defendants represented by counsel and those appearing pro se. Specifically, he argues that the effect of Rule 415(c) is to prevent defendants represented by an attorney from possessing, or having custody of, pretrial-discovery materials while defendants who represent themselves are free to hold such materials in their exclusive possessions. Defendant maintains that no rational basis lies for such a distinction and thus Rule 415(c) violates equal protection.
As Rule 415(c) does not involve any fundamental right or suspect class, it need only satisfy a rational-basis test. The purpose of Rule 415(c) is to prevent pretrial-discovery materials from becoming “matters of public availability once they had been turned over to counsel.”
The supreme court rules on discovery for criminal cases apply “in all criminal cases wherein the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary.”
Given these specific rights to counsel and the application of the mandatory criminal discovery rules to cases involving more serious criminal offenses, it is not unreasonable for the drafters of Rule 415(c) to have believed most criminal defendants in cases in which the discovery rules apply would be represented by counsel. If most criminal defendants would be represented by counsel, it stands to reason that regulation of that counsel‘s conduct would be an effective way to reach Rule 415(c)‘s stated goal of protecting discovery materials from public availability.
Moreover, pro se defendants have a need to possess the State‘s pretrial-discovery answers. These defendants act as their own at-
Additionally, the enforcement of Rule 415(c) in this case does not violate equal protection. Testimony at the hearing on defendant‘s prosecutorial-misconduct motion indicated the State‘s Attorney‘s office had become aware that jail inmates were in possession of discovery materials in violation of Rule 415(c). The record does not reflect similar information was received with regard to defendants outside of the jail. Thus, rather than arbitrarily enforce Rule 415(c), action was taken to enforce its requirements where known violations of the rule had occurred.
This court recognizes the impossibility of enforcing Supreme Court Rule 415(c) as well as defense counsel‘s need to share discovery materials with defendant in order to prepare an adequate defense. However, changes in supreme court rules are subject to a committee review and supreme court passage, not to this court.
C. Street-Value Fine
Defendant next argues he is entitled to a $1,405 credit against the street-value drug fine imposed by the trial court because of the 281 days he spent in pretrial detention. The State concedes this issue.
Section 110—14 of the Criminal Procedure Code (
“Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant.”
A defendant may request a section 110—14 credit for the first time on appeal. People v. Woodard, 175 Ill. 2d 435, 457, 677 N.E.2d 935, 945-46 (1997).
Here, the trial court awarded defendant a sentence credit of 281 days for the time he spent in pretrial detention. It did not award defendant the $5 per diem credit contained in section 110—14. Since defendant may request a section 110—14 credit on appeal, and because he meets all of the requirements of that section, we remand with instructions that the court amend its written judgment order and award defendant a credit of $5 a day for each of the 281 days he spent in pretrial detention.
D. Amendment of Written Judgment
Finally, defendant contends the trial court‘s written judgment order should be corrected to reflect that he was convicted of unlawful possession of a controlled substance with intent to deliver pursuant to section 401(a)(2)(D) of the Controlled Substances Act (
When an oral pronouncement of judgment and a trial court‘s written judgment are in conflict, it is the oral pronouncement that is controlling. People v. Smith, 242 Ill. App. 3d 399, 402, 609 N.E.2d 1004, 1006 (1993). Section 401 of the Controlled Substances Act makes it unlawful for any person to possess a controlled substance with the intent to deliver.
In this case, the jury convicted defendant of unlawful possession with the intent to deliver. Further, before the jury was instructed, the State moved to dismiss the charge against defendant based solely on simple possession (
III. CONCLUSION
For the reasons stated, we affirm the trial court‘s judgment and remand with instructions that the court amend its written judgment order to (1) award defendant a credit of $5 a day toward his street-value fine for each of the 281 days he spent in pretrial detention and (2) reflect that defendant was convicted of unlawful possession of a controlled substance with intent to deliver pursuant to section 401(a)(2)(D) of the Controlled Substances Act (
Affirmed as modified and cause remanded with directions.
McCULLOUGH, J., concurs.
JUSTICE APPLETON, specially concurring:
I concur with the decision of the majority that the conduct of the State‘s Attorney and the personnel at the Macon County jail was, even if erroneous, harmless with regard to the evaluation of defendant‘s
“[T]he essence of the [s]ixth [a]mendment right is *** privacy of communication with counsel.” United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973). Reliance on Supreme Court Rule 415(c) as authority to contravene the United States Constitution, as the State does here, is misplaced. That rule is one of admonition to counsel, not to the criminal defendant with whom counsel communicates. This may be the reason that in the collective experience and memory of the panel, we have never before been made aware of a jail shakedown for the purpose of taking from prisoners written communications from their lawyers.
In oral argument, the State agreed that if defense counsel had reduced the contents of each police report to letter form, including even the names and addresses of witnesses, no violation of the rule would have occurred. Given that admission, one would easily wonder what actual security purpose is served by Rule 415, especially compared to its potential constitutional infirmity. It is constitutionally required for counsel to advise their clients of the nature and extent of the evidence facing them in order for the client to make informed decisions concerning his or her case. People v. Bien, 277 Ill. App. 3d 744, 751, 661 N.E.2d 511, 516 (1996). That counsel do so in the most expeditious manner should not subject them to sanction or their clients to a shakedown search.