*1 Illinois Official Reports Appellate Court
People v. Warren
,
District & No.
Docket No. 4-12-0721 Filed June 6, 2014
Modified upon
denial of rehearing August 29, 2014 Defendant’s conviction for unlawful possession of a controlled
Held substance with intent to deliver was upheld over his contention that the ( Note: This syllabus State’s case was based on the incredible testimony of the woman who constitutes no part of the was with him at the time of his arrest, but the cause was affirmed in opinion of the court but has been prepared by the part and vacated in part and remanded with directions for the trial Reporter of Decisions court to reimpose certain mandatory fines that were improperly for the convenience of imposed by the circuit clerk rather than the trial court and to review the the reader. ) information provided by the appellate court in Williams in connection
with the imposition of statutorily mandated fines in criminal cases. Decision Under Appeal from the Circuit Court of Champaign County; No. 11-CF-443; the Hon. Heidi N. Ladd, Judge, presiding. Review Affirmed in part and vacated in part; cause remanded with directions.
Judgment *2 Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Martin J. Ryan, all of State Appellate Defender’s Office, of Springfield, for appellant. Appeal
Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J. Robinson, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People. JUSTICE KNECHT delivered the judgment of the court, with
Panel
opinion.
Presiding Justice Appleton and Justice Pope concurred in the judgment and opinion.
OPINION ¶ 1 Following a May 2012 trial, the jury found defendant guilty of unlawful possession with
the intent to deliver a controlled substance, a Class 1 felony (720 ILCS 570/401(c)(2) (West 2010)) (count I), and unlawful possession of a weapon by a felon, a Class 3 felony (720 ILCS 5/24-1.1(a), (e) (West 2010)) (count II). In July 2012, the trial court sentenced defendant to a 30-year term on count I and a concurrent 10-year term on count II. Defendant appeals, arguing (1) the State failed to produce sufficient evidence to sustain his conviction on count I; (2) he is entitled to a vacation of certain assessments imposed pursuant to his conviction; and (3) he is entitled to additional sentencing credit for time served. We affirm in part, vacate in part, and remand with directions. I. BACKGROUND On March 21, 2011, the State charged defendant with unlawful possession with intent to
deliver a controlled substance and unlawful possession of a weapon by a felon. The charges arose from a traffic stop and later search of a hotel room rented by defendant. A. The Traffic Stop On March 18, 2011, Officer Jeremiah Christian of the Champaign police department, who
was assigned to the Community Action Team, observed defendant driving a green Oldsmobile Bravada. Upon recognizing defendant as the driver, Officer Christian “conducted surveillance to see where [defendant] was going.” Officer Christian followed defendant to the Red Roof Inn on Anthony Drive. Officer Christian observed defendant exit his vehicle and enter a guest room at the hotel. Officer Christian then left the area to meet with other members of the Community Action Team. The team formulated a plan to return to the area around the hotel to continue surveillance
on defendant’s activities. If defendant was observed leaving the hotel, an officer would follow *3 and wait for defendant to commit a violation of the Illinois Vehicle Code (625 ILCS 5/1-100 to 20-402 (West 2010)). The officers would then stop the vehicle and further their investigation. ¶ 7 Officer Christian returned to the hotel to continue his surveillance. At some point during
his surveillance, Officer Christian observed defendant return to the Oldsmobile Bravada. He was accompanied by a white female, later identified as Kimberly Rosas. Defendant drove the vehicle away from the hotel and headed toward Neil Street. Officer Christian went to hotel management to see whether defendant had rented a room at the hotel. Officer Christian learned defendant had been renting a room at the hotel since March 8, 2011. The rental agreement listed only defendant’s name. Officer Christian then went to the room and stood watch to ensure nobody entered or left the room. Shortly thereafter, Officer Phillip McDonald observed defendant commit a traffic violation while turning right onto Neil Street, and initiated a traffic stop at the intersection of Neil Street and Interstate 74. Several other Champaign police officers, including Katherine Thompson, Marshall Henry, and Robert Sumption, arrived on the scene to provide backup. Officer McDonald approached the vehicle and asked defendant to shut off the car. He
detected an odor of cannabis emanating from the vehicle. Officer Henry also detected the odor of cannabis. Because the officers detected the odor of cannabis, Officer McDonald asked defendant to step out of the vehicle so it could be searched. Defendant responded by attempting to lock the driver’s door and reaching for the key still in the ignition. Officer McDonald then reached inside the car and grabbed defendant’s arm. Officer Henry assisted Officer McDonald in removing defendant from the vehicle. After the officers removed defendant from the vehicle, a lengthy struggle ensued and defendant resisted the officers’ attempts to place him under arrest. During this struggle, Officer Sumption asked Rosas whether anything illegal was located
inside the car. At first she indicated there was not, but she later informed the officer a gun was in her purse. This prompted Officer Sumption to draw his weapon and point it at Rosas. Officer Sumption relayed this information to the other officers at the scene. Officer Sumption then removed Rosas from the vehicle and placed her under arrest. She was escorted to the backseat of Officer Thompson’s squad car. Officer Sumption removed the gun from Rosas’s purse and determined the gun was loaded with a magazine containing six rounds of .25-caliber ammunition. He also determined no rounds were in the weapon’s chamber. While sitting in the backseat, Rosas told Officer Sumption defendant carried the purse containing the handgun to the vehicle. B. Rosas’s Postarrest Interview As Officer Thompson escorted Rosas to her police car, she asked Rosas whether she had
anything “crotched,” meaning concealed within her undergarments or inside her vaginal or anal cavity. Rosas stated she did not. While seated in the back of the police car, Rosas told Officer Sumption that defendant carried the gun in her purse to the car. Rosas told Officer Sumption approximately half an ounce of crack cocaine was located in the hotel room. Rosas was then transported to the Red Roof Inn to confirm the location of the room in which she and defendant had been staying. Officer Thompson transported Rosas to the Champaign police department to speak with
Officer McDonald. After being informed of and waiving her Miranda rights ( Miranda v. Arizona , 384 U.S. 436 (1966)), Rosas stated she had a current addiction to crack cocaine. Officer McDonald inquired about the gun recovered during the traffic stop. Rosas stated defendant had the gun in his waistband until Officer McDonald initiated the traffic stop, when defendant placed the handgun in Rosas’s purse.
¶ 13 Rosas then expressed her concern over going to jail. After Officer McDonald assured
Rosas she would not go to jail, Rosas stated, “I’ll do anything that you want me to do. I’ll be helpful, you know, as long as I don’t go to jail.” Rosas then detailed the drug-dealing operation defendant was running from the hotel room. Defendant would bring large quantities of crack cocaine to the room and break it down for sale. He used a black scale to assist him in breaking down the product. Defendant would then package the individual pieces for sale. Once packaged for sale, defendant would place the individually wrapped pieces of crack cocaine in a plastic bag and “go deal.”
¶ 14 Rosas believed defendant was bringing at least four ounces of crack cocaine to the room
per day to package for sale. She further believed at least a half-ounce of crack cocaine would be found in defendant’s black duffel bag inside the room and more would be found outside the hotel room. Rosas then asked to use the restroom. Officer Thompson, who stood by during the
interview, escorted Rosas to the restroom. While there, Rosas told Officer Thompson she had crack cocaine concealed inside her vagina. Officer Thompson looked into the toilet and observed a plastic bag containing what appeared to be individually packaged pieces of crack cocaine. Officer Thompson informed Officer McDonald of what she discovered. Rosas returned to the interview room, where Officer McDonald was to take a statement
regarding the crack cocaine discovered during Rosas’s bathroom break. When asked how the crack cocaine came to be concealed within her vagina, Rosas initially told Officer McDonald that defendant physically placed the cocaine inside her vagina just before the traffic stop. Rosas assured Officer McDonald she was being truthful. Rosas stated this was her first time out dealing with defendant. She also stated defendant wanted her to accompany him because he had the gun, but she was not sure whether he wanted her there to take blame for the gun. After about 15 minutes, Officer McDonald again asked Rosas to speak with him. Officer McDonald sought clarification as to how the crack cocaine came to be concealed within Rosas’s vagina. This time, Rosas stated defendant handed her the bag containing crack cocaine and ordered her to conceal it in her vagina just before the traffic stop. Defendant told her she would be sorry if she did not do so. Rosas then placed the crack cocaine inside her vagina. Additionally, Rosas told police the last time she smoked crack was just before she and defendant were arrested. C. Search of the Hotel Room After Rosas was interviewed, she was asked to swear to an affidavit in support of a search
warrant. The affidavit stated Rosas was with defendant when his Oldsmobile Bravada was stopped. At the time of the stop, defendant removed a weapon, which belonged to him, from *5 his waistband and placed it into Rosas’s purse. Defendant was the registered occupant of room 258 at the Red Roof Inn on Anthony Drive in Champaign, Illinois, and currently possessed approximately half an ounce of crack cocaine there in a black leather duffel bag. Defendant had been using the room for one to two weeks to package cocaine he later distributed. Defendant was selling approximately four ounces of cocaine per day.
¶ 20 According to Officer Thompson, she transported Rosas to the Schnuck’s parking lot in
Savoy, Illinois. While there, Rosas swore to her affidavit in front of a judge. The judge issued the warrant. Officer Thompson transported Rosas back to the Champaign County jail where she was booked for the possession of the drugs concealed within her vagina. Armed with a search warrant, the officers searched the hotel room. During the course of the
search, several items of evidentiary value were seized. Officers seized a silver Compaq laptop computer, its charging chord, and a speaker system, which were all located on a nightstand next to the bed; a certificate of title for a 1997 Oldsmobile Bravada issued to defendant, found in a duffel bag later determined to belong to defendant; a rental receipt from the Red Roof Inn naming defendant as the sole person who rented the room, which was found on the nightstand; a blank check belonging to defendant, found in the same duffel bag as the certificate of title; an Illinois identification (ID) card issued to defendant, which was found in a pair of men’s jeans lying on the floor underneath the sink; and a prescription bottle containing pseudoephedrine for defendant, which was found on the counter next to the sink. The officers also seized a velvet Crown Royal bag containing five live rounds of
.25-caliber ammunition, which was found in a dresser drawer (at trial, Rosas testified the drawer also contained defendant’s clothing, but defendant denied the items were his and testified they belonged to Rosas); a black digital scale, which was located under the Crown Royal bag; a box of plastic sandwich Baggies, which was found on top of the microwave; numerous empty plastic Baggies with both bottom corners removed, which were found in the garbage can near the bathroom; 17 individual “corner Baggies” containing crack cocaine, all of which were found in a wadded-up paper towel in the garbage can; and two glass crack pipes and one metal crack pipe. D. Defendant’s Motion To Suppress Under Franks v. Delaware On November 14, 2011, defendant filed a motion to suppress evidence under Franks v.
Delaware
,
did not belong to him. Defendant was not aware Rosas had the weapon in her purse. Defendant was not in possession of any drugs and was unaware Rosas had drugs on her or in the hotel *6 room. While some of defendant’s possessions were in the hotel room, he would only come by occasionally to shower and change clothes. Defendant rented the room at the hotel because Rosas did not have a State ID card.
¶ 26 Rosas’s affidavit further stated Rosas had been addicted to crack cocaine for 11 years. She
supported her drug habit by “dating” men she did not know. One man she “dated” came to the hotel room and inadvertently left the weapon found in Rosas’s purse in the room. Rosas kept the weapon because she wanted to trade it for drugs. Defendant always tried to help Rosas “leave the drug addiction and the drugs dating behind [her].”
¶ 27 Rosas’s affidavit also stated everything Rosas told the police about defendant’s
drug-dealing operation was not true and she was solely responsible for the drugs and weapon recovered on March 18, 2011. The last two sentences of Rosas’s affidavit state, “The record reported that I was transported to [Schnuck’s in Savoy, Illinois], before a judge to swear to a search warrant to search the hotel room. I was never transported to [S]chnuck’s in Savoy[, Illinois], before a judge nor did I ever swear to a search warrant before a judge.” The trial court denied defendant’s motion to suppress. E. Defendant’s Trial During the May 2012 jury trial, several people testified to the evidentiary significance of the items seized from defendant’s vehicle and the hotel room. Officer Christian testified that in his experience as a police officer, he has encountered velvet Crown Royal bags approximately 50 times. He testified most times he has encountered these bags, they contain narcotics or a weapon. The .25-caliber ammunition located inside the Crown Royal bag was significant to Officer Christian because a .25-caliber handgun was recovered during the traffic stop. Officer Christian also testified regarding the digital scale found in the hotel room. He testified he had encountered such scales “hundreds, upon hundreds” of times throughout his experience as a police officer. Officer Christian testified the price of narcotics is generally determined by its weight. Narcotics dealers use digital scales to ensure they are giving their customers the correct quantity of narcotics. Narcotics users may also possess scales to make sure they are not “shorted” when they buy drugs. Sergeant Dennis Baltzell of the Champaign police department testified to the significance
of the plastic Baggies, of which the corners were removed. The Baggies were indicative of bags that have been used to package controlled substances, because the corners of the Baggies were missing. Based on his training and experience, Sergeant Baltzell would expect this type of Baggie to be found in locations where drugs were being packaged for sale. He would not expect to find this type of Baggie in a location where controlled substances were merely being consumed or used. Sergeant Baltzell also recovered the crack cocaine from the hotel room’s trash can. He
testified that based on his training and experience, he concluded the crack cocaine was packaged for sale–he found 17 individually wrapped packages, all containing similar amounts of crack cocaine. Baltzell opined the 17 packages had a street value of $340. Further, if *7 Sergeant Baltzell were to find individually packaged amounts of a controlled substance, an electronic scale, additional whole plastic bags, and bags that had been cut off at the corners all at one location, he would conclude, based on his training and experience, the person in control of the location was engaged in the manufacture and delivery of a controlled substance. Narcotics dealers often protect themselves with a firearm. When drug dealers travel in a vehicle, they often conceal the narcotics within the vehicle and carry a firearm for protection. Narcotics dealers commonly ask someone else to hold their drugs while transporting them in a vehicle. Sergeant Baltzell opined the quantity of crack cocaine recovered from the trash can was not an amount consistent with personal use. John Carnes, a forensic scientist for the Illinois State Police crime lab, testified he
examined both the handgun and its magazine for latent prints of which he could make a comparison. Carnes was unable to find any latent prints on the handgun or magazine capable of comparison. Carnes testified it was possible to touch something and not leave behind fingerprints. Further, fingerprint residue is very fragile and not easy to preserve. Carnes was not given any item to examine for latent prints beside the gun and its magazine. Cory Formea, a forensic scientist for the Illinois State Police crime lab, testified he
collected a swab from each side of the gun’s handle for deoxyribonucleic acid (DNA) analysis and placed the swabs in the evidence vault, per department policy. Aaron Small, a forensic scientist with the Illinois State Police crime lab, performed the actual DNA analysis. He compared the swabs taken from the handgun with a standard sample from defendant. Small testified he obtained single-source DNA profiles from each of the swabs taken from the handgun. Those DNA profiles matched defendant’s DNA profile. In fact, the matching DNA profile taken from the gun and defendant would be expected to occur in 1 in 130 quintillion African-Americans, 1 in 5.8 sextillion Caucasians, and 1 in 45 sextillion southwest Hispanic unrelated individuals. (Defendant is African-American.) It is possible to touch something and not leave behind DNA. No sample from Rosas was compared with the swabs from the gun. John Martin, a forensic scientist at the Illinois State Police crime lab, testified the 17 individual packages recovered from the hotel room all contained a substance testing positive for cocaine. He determined the aggregate weight of the substance contained within the 17 bags was 4.6 grams. As for the package recovered from the toilet at the Champaign police department, it contained a substance testing positive for cocaine. Martin determined the aggregate weight of the substance recovered from the police department’s toilet was 2.6 grams. The State also presented the testimony of Rosas. She testified she was 27 years old and had been smoking crack cocaine for about 17 years. Rosas had had problems with the law over the past three years, including two misdemeanor convictions and three pending felony charges. The pending felony charges involved both possession and delivery of a controlled substance. Rosas had known defendant for about four years, and they had been in a dating relationship for the past two years. Defendant and Rosas had been sharing the room at the hotel for about two weeks at the time of their arrest, but defendant spent the night in the hotel room only some of those nights. Defendant kept a couple changes of clothes, various personal items, and a laptop computer in the room. Defendant also kept his crack cocaine in the room. The night before Rosas and defendant were arrested, Rosas observed a man, nicknamed
“Rabbit,” enter the room and leave a large ball of cocaine for defendant. Rabbit and defendant did not exchange any words. Rosas then observed defendant break down the cocaine using a safety pin and package it for sale using the scale and plastic Baggies recovered from the room. Once the crack cocaine was packaged for sale, defendant held onto the packages until somebody called to set up a deal. Defendant’s customers would call defendant’s cellular phone. Rosas answered the phone for defendant, took his customers’ orders, and arranged a place to meet. Rosas would relay this information to defendant, and he would give her the appropriate amount of crack cocaine. Rosas would deliver the crack cocaine for defendant, either by bicycle or one of her friends’ vehicles, and return the money to defendant. Rosas helped defendant deal drugs because she “was an addict, and you know, if I done something for him, you know, I would get me some dope, myself.” Rosas testified defendant obtained the handgun from a person in Rantoul. He traded a
couple of bags of crack cocaine for the weapon. Defendant then asked Rosas to hold onto the gun for him because he was on probation and forbidden from possessing a weapon. Rosas was scared to hold onto the gun because she had never been in that much trouble. Defendant put the gun in her purse when they left the hotel on March 18, 2011. Rosas touched the gun only once when asked by defendant to wipe off his fingerprints, but Rosas did not do so. Rosas also testified as to how the crack cocaine came to be concealed within her vagina. She testified just before Officer McDonald initiated the traffic stop, defendant handed her the cocaine and told her to hide it inside her body, which she understood to mean inside her vagina. Rosas complied with defendant’s request. On cross-examination, Rosas admitted she was hoping to receive leniency from the State’s
Attorney in her pending cases by testifying against defendant here. Rosas also admitted she smoked at least nine $20 pieces of crack cocaine per day. When showed a picture of the dresser drawer containing the scale and Crown Royal bag, Rosas denied the items were hers. “Rabbit” sold crack cocaine to Rosas on occasion, but not while she was living at the hotel. She stated she and defendant both stayed in the hotel room and defendant paid for the room. Defense counsel then confronted Rosas with the numerous inconsistent statements she had
given throughout the pendency of this case. Rosas admitted she first told Officer Sumption nothing illegal was contained within the car before she told him a gun was in her purse. While sitting in the back of the squad car, Rosas told the officers approximately one-half ounce of crack cocaine was in a black duffel bag in the hotel room. Defense counsel also confronted Rosas with the inconsistency in her story of the transaction by which defendant came into possession of the handgun. Defense counsel confronted Rosas with her conflicting statements regarding how the
handgun got into her purse–she first told police defendant carried her purse containing the weapon to the vehicle but later told police defendant placed the handgun in her purse just before Officer McDonald initiated the traffic stop. Defense counsel also confronted Rosas about the crack cocaine found concealed in her vagina. When her postarrest interview began, Rosas denied having anything illegal on her person, but during the course of the interview, a bag containing individually wrapped pieces of cocaine was recovered from the toilet after *9 Rosas had used it. Rosas told police defendant physically placed the crack cocaine inside her body, but she later told them defendant handed her the drugs and told her to conceal them inside her vagina.
¶ 43 Rosas also admitted she told Officer McDonald she would cooperate as long as she did not
go to jail. Defense counsel then confronted Rosas with her affidavit in support of defendant’s Franks motion to suppress. Rosas admitted she signed the document before the January 2012 hearing on defendant’s Franks motion. Rosas also admitted she testified she signed the document in front of a notary. When asked whether she wrote the document, Rosas testified she “helped writing that document.” Rosas then testified she was told to write the portions incriminating herself and exonerating defendant, but she did not identify who told her to do so. ¶ 44 On redirect examination, the State asked Rosas about the affidavit in support of
defendant’s Franks motion. Rosas testified defendant told her to write the affidavit and to include the information exonerating defendant. The State inquired about Rosas’s statement in the affidavit in which she stated she was never taken to Savoy, Illinois, to swear to an affidavit before a judge. Rosas testified she included this statement, even though she knew it could be proved false, because she was scared of defendant. She knew if she did not take the blame, defendant would punch and slap her. Defendant took Rosas to the notary and stood by as the document was notarized. Defendant testified on his own behalf. He was renting the hotel room for Rosas as a favor
to her. Defendant kept clothing and some toiletries at the hotel room because he would stay the night in the room on occasion. Defendant did not keep anything in the drawers. According to defendant, “[e]verything in that room basically belongs to Ms. Rosas, because the room was for her, because I had my own place.” Defendant knew Rosas had a handgun, “[b]ecause she dated a man once who’s named
Jimmy, that’s what she told me, and he was the one that had had the weapon.” Defendant saw the handgun in Rosas’s possession three days before the traffic stop and asked Rosas to dispose of it. Rosas kept the gun because she knew she could trade it for drugs. Defendant touched the gun, only once, because he thought it was a “nice weapon.” Defendant denied attempting to start his vehicle after Officer McDonald asked him to exit
the car. Defendant denied he ever handled the handgun aside from when he first discovered it was in Rosas’s possession. Rosas carried the handgun to his vehicle of her own free will. Defendant denied packaging and selling drugs from the hotel. Defendant denied ever selling drugs–he was previously a drug user, not a dealer. Rosas did not deliver drugs for defendant. Defendant did not know drugs were in the hotel room. He knew, however, Rosas supported her drug habit through prostitution, and he had been present when Rosas brought men to the room. Defendant denied ever possessing the crack cocaine in Rosas’s vagina. He did not tell Rosas to hide the crack cocaine inside her vagina. Rosas fabricated her statements incriminating defendant because she wanted leniency from the State. Defendant denied telling Rosas what information to include in her affidavit in support of his Franks motion. Defendant never told Rosas how to testify in another proceeding and never threatened her harm. On cross-examination, defendant maintained he was helping Rosas rent the hotel room out
of the goodness of his heart. He would take cash she gave him to go pay for the room. He sometimes paid a portion of the bill out of his own pocket. Sometimes, defendant “dated” Rosas and gave her money in exchange. Defendant knew Rosas was a drug user on March 18, 2011, but he “never got involved” with what she did. He often told her to go to rehab, but she was stubborn and would not listen. “She kept her lifestyle,” defendant testified, “and my mistake was just being around her like that.”
¶ 50 Defendant stated he had not smoked crack cocaine in four to five years. At the time of trial,
defendant still associated with Rosas. When asked whether his relationship with Rosas was the same as it was on March 18, 2011, defendant stated it was. The last time defendant “dated” Rosas was about three months prior to trial. Defendant thought he and Rosas would still be on good terms after her testimony at trial. Rosas was only incriminating him to get leniency from the State. Defendant was not upset with Rosas’s testimony at trial because he knew she would testify as she did all along. Defendant knew he was the person the police were really after. Defendant was never guilty of any offense of which he was accused. This incident, like all his other previous run-ins with the law, was caused by the fact he is a nice person and others take advantage of him. On this evidence, the jury found defendant guilty on both counts. F. Defendant’s Sentence On July 2, 2012, the cause proceeded to defendant’s sentencing hearing. Prior to the
hearing, the parties were allowed to suggest corrections to the presentence investigation report (PSI). Only the State took this opportunity, adding dates and case numbers to the portion of the PSI detailing defendant’s criminal history. After the parties presented evidence in aggravation and mitigation and argued the appropriate sentence for this case, defendant addressed the court. Defendant stated he was innocent of the charges in this case. In fact, he was not guilty of any offense in his criminal history. On this occasion and in his past, defendant was guilty only by his association with criminals. The trial court sentenced defendant to a 30-year term on count I and a concurrent 10-year
term on count II. After announcing this sentence, the court addressed the issues of sentencing credit and monetary assessments with the parties. The court asked defense counsel whether 145 days was the correct calculation of credit for time served, and counsel responded in the affirmative. Thereafter, the court awarded defendant 145 days’ credit for time served and ordered defendant to pay a $100 crime laboratory analysis fee, a $2,000 mandatory assessment, and a $340 street-value fine for the cocaine recovered from the hotel room. In addition, the court authorized a $250 DNA analysis fee to be imposed, but only if defendant had not previously been assessed the fee. Finally, the court ordered defendant to “pay all fines, fees, and costs as authorized by statute,” but it did not specifically refer to any fine, fee, or cost other than those already stated. The court asked whether the parties had anything else to add, and both parties responded they did not. After defendant’s sentencing hearing, the circuit clerk calculated the statutorily authorized
assessments against defendant, which are reflected in a printout from the clerk. The printout *11 from the clerk (see appendix), shows defendant was assessed the following fines and fees on count I: (1) a $5 document-storage assessment; (2) a $10 automation assessment; (3) a $100 circuit-clerk assessment; (4) a $25 court-security assessment; (5) a $50 court-finance assessment; (6) a $40 State’s Attorney assessment (a $30 assessment for felony conviction plus the $10 remitted to the State’s Attorney as part of the juvenile expungement assessment); (7) a $2 “State’s Attorney Au” assessment; (8) a $10 arrestee’s medical assessment; (9) a $5 spinal-cord-research assessment; (10) a $250 “State Offender DN” assessment; (11) a $100 trauma-fund assessment; (12) a $590 traffic/criminal surcharge; (13) a $30 juvenile expungement assessment listed as three separate $10 assessments for the State Police Services Fund, State’s Attorney’s Office Fund (the $10 assessment for the State’s Attorney is included in the $40 charge listed for the State’s Attorney on the clerk’s printout), and Circuit Clerk Operations and Administrative Fund; (14) a $5 drug-court assessment; (15) a $236 violent crimes victims assistance (VCVA) assessment; (16) a $340 street-value fine; (17) a $1,275 mandatory assessment; and (18) a $10 State Police operations assessment. On count II, the circuit clerk’s printout shows defendant was assessed the following fines
and fees: (1) a $5 document-storage assessment; (2) a $10 automation assessment; (3) a $100 circuit-clerk assessment; (4) a $25 court-security assessment; (5) a $50 court-finance assessment; (6) a $40 State’s Attorney assessment (a $30 assessment for felony conviction plus the $10 remitted to the State’s Attorney as part of the juvenile expungement assessment); (7) a $2 “State’s Attorney Au” assessment; (8) a $10 arrestee’s medical assessment; (9) a $10 traffic/criminal surcharge; (10) a $30 juvenile expungement assessment listed as three separate $10 assessments for the State Police Services Fund, State’s Attorney’s Office Fund (the $10 assessment for the State’s Attorney is included in the $40 charge listed for the State’s Attorney on the clerk’s printout), and Circuit Clerk Operations and Administrative Fund; (11) a $5 drug-court assessment; (12) a $4 VCVA assessment (we note the printout also contains an entry called “VICTIMS FUND–NO FI,” with no dollar amount listed); and (13) a $10 State Police operations assessment. The printout also contains an entry for “CRIME LAB,” but no dollar amount is listed. This appeal followed. II. ANALYSIS A. Sufficiency of the Evidence Defendant argues the State failed to produce sufficient evidence to sustain his conviction
for unlawful possession with intent to deliver a controlled substance. Specifically, defendant argues the State’s case was based entirely on the incredible testimony of Kimberly Rosas, and as a result, defendant’s conviction and sentence for that offense must be vacated. The State responds the evidence, notwithstanding Rosas’s testimony, is sufficient to sustain his conviction. Defendant does not challenge his conviction for unlawful possession of a weapon by a felon. *12 When met with a challenge to the sufficiency of the evidence, this court, viewing the
evidence in the light most favorable to the State, considers whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt.
People v.
Wheeler
,
substance, the State must prove beyond a reasonable doubt (1) the defendant had knowledge of
the presence of the controlled substance; (2) the controlled substance was in the immediate
possession or control of the defendant; and (3) the defendant intended to deliver the controlled
substance.
People v. Robinson
,
actions, declarations, or conduct from which an inference of knowledge may be fairly drawn.”
People v. Roberts
,
1026. Courts look to a variety of factors to prove the intent element of the instant offense, which include:
“whether the quantity of controlled substance in defendant’s possession is too large to be viewed as being for personal consumption [citation], the high purity of the drug confiscated [citation], the possession of weapons [citation], the possession of large amounts of cash [citation], the possession of police scanners, beepers or cellular *13 telephones [citations], the possession of drug paraphernalia [citation] and the manner in which the substance is packaged [citation].” Id .,657 N.E.2d at 1026-27 .
In
People v. Beverly
, 278 Ill. App. 3d 794, 663 N.E.2d 1061 (1996), this court affirmed a
defendant’s conviction for unlawful possession with the intent to deliver a controlled
substance where the drugs were packaged for sale and the State proved one additional factor
tending to show an intent to deliver–the presence of a large amount of cash on defendant’s
person.
Id
. at 802,
the hotel room, the jury was entitled to find defendant had the requisite knowledge crack
cocaine was present in the room. See
Nettles
,
requisite intent to deliver the crack cocaine. While executing the search warrant for the hotel
room, the police recovered a digital scale, live .25-caliber ammunition, whole plastic Baggies,
plastic Baggies of which the bottom corners had been removed, and 17 individually wrapped
pieces of crack cocaine. Because the crack cocaine found in the hotel room was packaged in a
manner consistent with how it is sold, the presence of one additional factor tending to show
intent can support a finding of intent to deliver a controlled substance. See
Beverly
, 278 Ill.
App. 3d at 802,
police department, the record evidence supports a finding of guilt. Defendant had constructive
possession over the crack cocaine hidden inside Rosas’s body as he had exclusive control over
the vehicle in which Rosas was traveling. Defendant was the sole person listed on the vehicle’s
certificate of title. While the crack cocaine was located in Rosas’s body, giving her actual
possession thereof, the jury was entitled to find defendant constructively possessed the
cocaine. See
People v. Schmalz
,
intent to deliver a controlled substance. The crack cocaine ultimately recovered from the Champaign police department toilet was packaged for sale in the same manner as that recovered from the hotel room. Further, a loaded handgun was recovered from Rosas’s purse during the traffic stop. Defendant asserts the State’s evidence against him “was based entirely on the testimony of
admitted addict and co-defendant Kimberly Rosas.” Defendant argues Rosas’s testimony does
not carry the absolute conviction of its truth and, therefore, does not suffice as proof beyond a
reasonable doubt of his guilt. In support of his argument, defendant cites
Smith
,
numerous inconsistencies as to how she came into possession of the gun and the drugs ultimately recovered from her vagina. Her two affidavits appear to be in direct conflict with one another. Rosas is admittedly addicted to crack cocaine and hoped for leniency from the State in exchange for her statements incriminating defendant. Rosas’s statements are subject to question, and they were subjected to scrutiny by the attorneys in this case. Further, Rosas testified she was charged as defendant’s codefendant with possession of the crack cocaine hidden in her vagina. On the State’s request, the jury was instructed to view Rosas’s testimony with caution. See Illinois Pattern Jury Instructions, Criminal, No. 3.11 (4th ed. 2000) (prior inconsistent statements); Illinois Pattern Jury Instructions, Criminal, No. 3.17 (4th ed. 2000) (accomplice testimony). The trier of fact was entitled to decide which version of events she gave should be credited. Moreover, we disagree the State’s case was based entirely on Rosas’s statements and
testimony. The State presented much circumstantial evidence against defendant notwithstanding Rosas’s statements and testimony. Defendant rented a hotel room in which extensive evidence of a drug-dealing operation was found. The State presented the testimony of 11 people in addition to Rosas. Officer Christian and Sergeant Baltzell explained to the jury the evidentiary significance of the items found in the hotel room–the items found were indicative of the manufacture and delivery of a controlled substance. The jury was present throughout the proceedings and found the State’s witnesses more credible than the defendant’s own self-serving statements of innocence. The evidence presented by the State reasonably supports a finding of guilt, and our function is not to reweigh this evidence. We affirm defendant’s conviction for unlawful possession with intent to deliver a controlled substance. ¶ 75 B. Fines and Fees
¶ 76 Defendant contends the trial court improperly duplicated the assessments imposed
pursuant to his conviction. Specifically, defendant argues he was assessed the statutorily
authorized fines and fees on each count within his single case, which is improper under
People
v. Alghadi
,
assessments on each count in his case: (1) a $5 document-storage assessment; (2) a $10
automation assessment; (3) a $100 circuit-clerk assessment; (4) a $25 court-security
assessment; (5) a $10 arrestee’s medical assessment; (6) a $50 court-finance assessment; (7) a
$40 State’s Attorney assessment; (8) a VCVA assessment ($236 on count I and $4 on count II);
and (9) a $10 State Police operations assessment. Defendant contends the court could not
properly impose these duplicate assessments on each count within his case, citing
Alghadi
,
in this case. Defendant argues the
trial court
improperly imposed the duplicate assessments of
which he takes issue. The State, however, points out the
circuit clerk
imposed the assessments.
*16
See
People v. Chester
, 2014 IL App (4th) 120564, ¶ 35,
authorized by statute,” it improperly delegated its power to impose a sentence to the circuit
clerk. See
People v. Fontana
,
or fees, because any fine assessed by the clerk must be vacated. The supreme court has recognized, despite their label as fees, certain assessments imposed
pursuant to a conviction are fines.
People v. Graves
,
“A fee is defined as a charge that seeks to recoup expenses incurred by the state, or to
compensate the state for some expenditure incurred in prosecuting the defendant.
[Citation.] A fine, however, is punitive in nature and is a pecuniary punishment
imposed as part of a sentence on a person convicted of a criminal offense. [Citation.]”
*17
(Internal quotation marks omitted.)
Graves
,
¶ 88 As part of our analysis, we next consider whether the assessments levied in this case can
properly be imposed on each count in a defendant’s case. ¶ 89 This court has addressed the issue of whether certain fines, fees, and costs may be imposed
on each count in a defendant’s single case. In
Alghadi
,
“Although a defendant may be charged with multiple counts within the same case
number, the defendant may only be assessed (1)
one
document-storage fee, (2)
one
automation fee, (3)
one
circuit-clerk fee, (4)
one
court-security fee, (5)
one
arrestee’s-medical assessment, (6)
one
court-finance fee, (7)
one
State’s Attorney
assessment, (8)
one
VCVA fine, and (9)
one
drug-court fee.” (Emphases in original.)
Alghadi
,
whether fines may be imposed on each count within a defendant’s single case. In
People v.
Pohl
,
imposed on each count within a defendant’s case, we look to the language of the statutes
providing for their imposition. Because the issues presented are ones of statutory construction,
our review is
de novo
.
People v. Gutman
,
A Fee Not Properly Imposed on Each Count The record shows the circuit clerk imposed a $5 document-storage fee (705 ILCS 105/27.3c(a) (West 2010)) on each count in defendant’s case. In Larue , 2014 IL App (4th) 120595, ¶ 62, we held the clerk could only assess one document-storage fee against the defendant, even though his case resulted in multiple convictions. We vacate one of the *18 document-storage fees assessed against defendant in this case.
(b) The Automation Assessments:
A Fee Not Properly Imposed on Each Count
The record shows the circuit clerk imposed a $10 automation fee (705 ILCS 105/27.3a
(West 2010)) on each count in defendant’s case. In
Larue
, we held the clerk could assess only
one automation fee per case.
Larue
,
(c) The Circuit-Clerk Assessments:
A Fee Not Properly Imposed on Each Count
The record shows the circuit clerk imposed a $100 circuit-clerk fee (705 ILCS
105/27.1a(w) (West 2010)) on each count in defendant’s case. In
Larue
, we held the clerk
could assess only one circuit-clerk fee per felony complaint.
Larue
,
(d) The Court-Security Assessments: A Fee Not Properly Imposed on Each Count The record shows the circuit clerk imposed a $25 court-security fee (55 ILCS 5/5-1103 (West 2010)) on each count in defendant’s case. In Larue , we held the clerk could assess only one court-security fee against the defendant. Larue , 2014 IL App (4th) 120595, ¶ 68. We vacate one of the court-security fees assessed against defendant in this case.
(e) The Court-Finance Assessments: A Fee Properly Imposed on Each Count The record shows the circuit clerk imposed a $50 court-finance fee (55 ILCS 5/5-1101(c), (g) (West 2010)) on each count in defendant’s case. In Larue , we held the clerk can properly impose a court-finance fee for each judgment of guilty or order of supervision. Larue , 2014 IL App (4th) 120595, ¶ 70. In this case, because defendant was found guilty of two offenses, the clerk properly assessed two court-finance fees against defendant.
(f) The State’s Attorney Assessments:
A Fee Properly Imposed on Each Count
The record shows the circuit clerk imposed a $40 State’s Attorney fee (55 ILCS 5/4-2002
(West 2010)) on each count in defendant’s case. In
Larue
, we held the clerk could impose the
State’s Attorney assessment on a per-conviction basis.
Larue
,
Our review of the statute authorizing the State’s Attorney fee shows the State’s Attorney is entitled to receive $30 for each felony conviction. 55 ILCS 5/4-2002(a) (West 2010). The additional $10 listed under the State’s Attorney assessment on the circuit clerk’s printout is the *19 $10 sum paid to the State’s Attorney out of the $30 juvenile-expungement assessment discussed below. See 730 ILCS 5/5-9-1.17 (West 2010).
¶ 106 (g) The State’s Attorney Automation Assessments:
A Fee Properly Imposed on Each Count The record shows the circuit clerk imposed a $2 State’s Attorney automation fee on each count in defendant’s case. Section 4-2002(a) of the 2012 version of the Counties Code provides, in pertinent part:
“State’s attorneys shall be entitled to a $2 fee to be paid by the defendant on a judgment of guilty or a grant of supervision for a violation of any provision of the Illinois Vehicle Code or any felony, misdemeanor, or petty offense to discharge the expenses of the State’s Attorney’s office for establishing and maintaining automated record keeping systems.” 55 ILCS 5/4-2002(a) (West 2012).
Public Act 97-673 amended section 4-2002 of the Counties Code to add the above-quoted
provision, which does not appear in the version of section 4-2002 in effect when defendant
committed the offenses in question. Pub. Act 97-673, § 5 (eff. June 1, 2012). If the assessment
is a fine, we must vacate its imposition as violating the prohibition on
ex post facto
punishment.
People v. Dalton
,
assessment be compensatory in nature. The assessment is to be used to “discharge the expenses of the State’s Attorney’s office for establishing and maintaining automated record keeping systems.” 55 ILCS 5/4-2002(a) (West 2012). Because the assessment is intended to reimburse the State’s Attorneys for their expenses related to automated record-keeping systems, the assessment is not punitive in nature. The assessment is a fee. Thus, the circuit clerk could properly impose the assessment against defendant, even though the provision authorizing the assessment became law after defendant committed the offenses charged in this case. The plain language of section 4-2002(a) clearly evidences the legislature’s intent this fee
be imposed on each count in a defendant’s case. A defendant must pay the $2 fee “on a judgment of guilty or a grant of supervision for *** any felony, misdemeanor, or petty offense.” 55 ILCS 5/4-2002(a) (West 2012). Because a defendant may properly be charged with and found guilty of multiple felony, misdemeanor, or petty offenses in a single case, the $2 State’s Attorney automation fees could be imposed on each count in defendant’s case. This conclusion is bolstered by the language in section 4-2002(a), providing “[n]o fees shall be charged on more than 10 counts in any one indictment or information on trial and conviction; nor on more than 10 counts against any one defendant on pleas of guilty.” Id . The circuit clerk properly assessed two State’s Attorney automation fees against defendant. (h) The Arrestee’s Medical Assessments:
A Noncreditable Fine That Can Be Imposed by the Court on Each Count The record shows the circuit clerk imposed a $10 arrestee’s medical assessment on each count in defendant’s case. Section 17 of the County Jail Act (Jail Act) (730 ILCS 125/17 (West 2010)) provides, in pertinent part:
“The county shall be entitled to a $10 fee for each conviction or order of supervision for a criminal violation, other than a petty offense or business offense. The fee shall be taxed as costs to be collected from the defendant, if possible, upon conviction or entry of an order of supervision. The fee shall not be considered a part of the fine for purposes of any reduction in the fine .
All such fees collected shall be deposited by the county in a fund to be established
and known as the County Jail Medical Costs Fund. Moneys in the Fund shall be used
solely for reimbursement to the county of costs for medical expenses and
administration of the Fund.” (Emphases added.) 730 ILCS 125/17 (West 2010).
In
Larue
, this court held the arrestee’s medical fee, despite its label as a “fee,” was actually
a fine and could not be imposed by the circuit clerk.
Larue
,
this fine be imposed on each count in a defendant’s case. The fine is to be imposed “for each conviction or order of supervision.” 730 ILCS 125/17 (West 2010). A defendant may properly be convicted of multiple offenses in a single case. Because a defendant may properly be convicted on multiple counts in a given case, the trial court must reimpose the arrestee’s medical fine on each count in defendant’s case. (i) The Spinal-Cord-Research Assessment:
A Noncreditable Fine Improperly Imposed by the Clerk The record shows the circuit clerk imposed a $5 spinal-cord-research assessment against defendant on count I only . Section 5-9-1.1(c) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-9-1.1(c) (West 2010)) provides:
“(c) In addition to any penalty imposed under subsection (a) of this Section, a fee of $5 shall be assessed by the court, the proceeds of which shall be collected by the Circuit Clerk and remitted to the State Treasurer under Section 27.6 of the Clerks of Courts Act for deposit into the Spinal Cord Injury Paralysis Cure Research Trust Fund. This additional fee of $5 shall not be considered a part of the fine for purposes of any reduction in the fine for time served either before or after sentencing . ” 730 ILCS 5/5-9-1.1(c) (West 2010). In Jones , 223 Ill. 2d at 599, 861 N.E.2d at 985, our supreme court held the
spinal-cord-research fee, despite its statutory label as a fee, is a fine. We vacate the spinal-cord-research fine imposed by the circuit clerk in this case. On remand, the trial court shall reimpose the fine as mandated by the statute. Because the clerk imposed this fine on *21 count I only, we need not address whether the fine can be properly imposed on each count in a defendant’s case.
¶ 117 (j) The Trauma-Fund Assessment:
A Fine Improperly Imposed by the Clerk ¶ 118 The record shows the circuit clerk imposed a $100 trauma-fund assessment on count I only .
Section 5-9-1.1(b) of the Unified Code provides:
“(b) In addition to any penalty imposed under subsection (a) of this Section, a fine of $100 shall be levied by the court, the proceeds of which shall be collected by the Circuit Clerk and remitted to the State Treasurer under Section 27.6 of the Clerks of Courts Act for deposit into the Trauma Center Fund for distribution as provided under Section 3.225 of the Emergency Medical Services (EMS) Systems Act.” (Emphases added.) 730 ILCS 5/5-9-1.1(b) (West 2010).
¶ 119 In
Jones
,
assessment authorized under section 5-9-1.1(b) of the Unified Code was clearly a fine because the legislature labeled it as such. We vacate the trauma-fund fine imposed by the circuit clerk after defendant’s sentencing. On remand, the trial court must reimpose the trauma-fund fine as mandated by the statute. Because the clerk imposed this fine on count I only, we need not address whether the fine can be properly imposed on each count in a defendant’s case. (k) The Traffic/Criminal Surcharges:
A Fine Improperly Imposed by the Clerk The record shows the circuit clerk imposed a $590 criminal surcharge on count I and a $10 criminal surcharge on count II. Section 5-9-1(c) of the Unified Code provides, in pertinent part:
“(c) There shall be added to every fine imposed in sentencing for a criminal or traffic offense, except an offense relating to parking or registration, or offense by a pedestrian, an additional penalty of $10 for each $40, or fraction thereof, of fine imposed.” (Emphases added.) 730 ILCS 5/5-9-1(c) (West 2010). The plain language of section 5-9-1(c) of the Unified Code clearly shows the legislature
intended this assessment to be punitive in nature. The statute refers to the assessment as “an additional penalty.” 730 ILCS 5/5-9-1(c) (West 2010). Further, the statute does not indicate the assessment is to be used to reimburse the county or the State for the expenses related to the prosecution of a defendant. Because the circuit clerk imposed the criminal surcharges after defendant was sentenced by the trial court, we vacate these fines. The plain language of section 5-9-1(c) shows the legislature intended this assessment be
imposed on each count in a criminal case. The statute provides the fine is to be “imposed in sentencing for a criminal or traffic offense.” 730 ILCS 5/5-9-1(c) (West 2010). Because a defendant may properly be sentenced for multiple offenses in a single case, a trial judge may properly impose this fine on each count. On remand, the trial court must reimpose a criminal surcharge on each count in defendant’s
case. This may require the fine to be recalculated, which will require the trial court to calculate
the total fines on each count and assess an additional $10 for each $40, or fraction thereof, of
fine imposed. 730 ILCS 5/5-9-1(c) (West 2010); see
People v. Williams
, 2013 IL App (4th)
120313, ¶ 21, 991 N.E.2d 914 (“ ‘Lump Sum Surcharge’ ” imposed pursuant to section
5-9-1(c) of the Unified Code is to be calculated before the VCVA assessment; the surcharge is
added to the total fines and the VCVA assessment is calculated based on the new total);
People
v. O’Laughlin
,
A Fine Improperly Imposed by the Clerk The record shows the circuit clerk imposed a $30 Juvenile Expungement Fund assessment on each count in defendant’s case. The $30 juvenile-expungement assessment is listed on the clerk’s printout as a $10 assessment for the Clerk Operations and Administrative Fund, a $10 assessment for the State’s Attorney Office Fund (the $10 assessment for the State’s Attorney is included in the $40 charge listed for the State’s Attorney on the clerk’s printout), and a $10 assessment for the State Police Services Fund. Section 5-9-1.17 of the Unified Code provides, in pertinent part:
“(a) There shall be added to every penalty imposed in sentencing for a criminal offense an additional fine of $30 to be imposed upon a plea of guilty or finding of guilty resulting in a judgment of conviction.
(b) Ten dollars of each such
additional fine
shall be remitted to the State Treasurer
for deposit into the State Police Services Fund ***, $10 shall be paid to the State’s
Attorney’s Office that prosecuted
the criminal offense
, and $10 shall be retained by the
Circuit Clerk for administrative costs associated with the expungement of juvenile
records and shall be deposited into the Circuit Court Clerk Operation and
Administrative Fund.” (Emphases added.) 730 ILCS 5/5-9-1.17 (West 2010).
The plain language of section 5-9-1.17 clearly shows the legislature intended this
assessment to be a fine. The statute refers to the assessment as “an additional fine” that is to “be
added to every penalty imposed in sentencing for a criminal offense.” 730 ILCS 5/5-9-1.17(a)
(West 2010). Further, “the charge [is] used to expunge juvenile records and is in no way related
to the prosecution of the adult defendant against whom the charge is levied.”
People v. Wynn
,
imposed on each count in a defendant’s case. The statute provides the fine is to “be added to every penalty imposed in sentencing for a criminal offense .” (Emphasis added.) 730 ILCS 5/5-9-1.17(a) (West 2010). The fine is “to be imposed upon a plea of guilty or finding of guilty resulting in a judgment of conviction.” 730 ILCS 5/5-9-1.17(a) (West 2010). Because a defendant can properly be found guilty of and sentenced for multiple criminal offenses in a case, the juvenile-expungement fine can be properly imposed on each count in a defendant’s case. On remand, the trial court must reimpose the $30 juvenile-expungement fine on each count in defendant’s case. (m) The Drug-Court Assessments:
A Fine Improperly Imposed by the Clerk The record shows the circuit clerk imposed a $5 drug-court assessment on each count in defendant’s case. Section 5-1101(f) of the Counties Code provides, in pertinent part:
“(f) In each county in which a drug court has been created, the county may adopt a mandatory fee of up to $5 to be assessed as provided in this subsection. Assessments collected by the clerk of the circuit court pursuant to this subsection must be deposited into an account specifically for the operation and administration of the drug court. *** The fees are to be paid as follows:
***
(2) a fee of up to $5 paid by the defendant on a judgment of guilty or a grant of supervision under Section 5-9-1 of the Unified Code of Corrections for a felony; for a Class A, Class B, or Class C misdemeanor; for a petty offense; and for a business offense.” 55 ILCS 5/5-1101(f) (West 2010). In this case, the $5 drug-court assessment imposed by the circuit clerk was a fine, despite
its label as a “fee,” because the assessment is intended to be used “for the operation and
administration of the drug court.” 55 ILCS 5/5-1101(f) (West 2010). Because defendant never
participated in drug court, this assessment did not reimburse the state for the costs of
prosecuting defendant.
People v. Unander
,
intended this fine to be imposed on each count in a defendant’s case. The statute provides the assessment is to be paid by a defendant “on a judgment of guilty or a grant of supervision.” 55 ILCS 5/5-1101(f)(2) (West 2010). Because a defendant may have a judgment of guilty rendered on each count within a case, the plain language of the statute clearly evidences the *24 legislature’s intent a defendant may be assessed the drug-court fine on each count within his case. On remand, the trial court must reimpose a $5 drug-court fine on each count in defendant’s case.
¶ 133 (n) The VCVA Assessments:
A Noncreditable Fine Improperly Imposed by the Clerk The record shows the circuit clerk imposed a $236 VCVA assessment on count I and a $4 VCVA assessment on count II. Section 10(b) of the Violent Crime Victims Assistance Act provides, in pertinent part:
“[T]here shall be an additional penalty collected from each defendant upon conviction of any felony *** of $4 for each $40, or fraction thereof, of fine imposed. *** Such additional penalty shall not be considered a part of the fine for purposes of any reduction made in the fine for time served either before or after sentencing .” (Emphases added.) 725 ILCS 240/10(b) (West 2010). The plain language of section 10(b) shows the legislature intended this assessment to be
imposed as punishment in a criminal case. The statute labels the assessment “an additional
penalty” (725 ILCS 240/10(b) (West 2010)), which shows the legislature intended this
assessment to be punitive in nature. Further, courts have previously held, some for over 25
years, the circuit clerk is without authority to impose the VCVA assessment, referring to the
assessment as a fine.
Rexroad
, 2013 IL App (4th) 110981, ¶ 55, 992 N.E.2d 3;
People v.
Wisotzke
,
A Fine Improperly Imposed by the Clerk ¶ 139 The record shows the circuit clerk imposed a $10 State Police operations assessment on
each count in defendant’s case. Subsection (1.5) of section 27.3a of the Clerks of Courts Act (Clerks Act) (705 ILCS 105/27.3a(1.5) (West 2010)) provides, in pertinent part:
“1.5. Starting on the effective date of this amendatory Act of the 96th General Assembly, a clerk of the circuit court in any county that imposes a fee pursuant to subsection 1 of this Section [(the automation fee)], shall charge and collect an additional fee in an amount equal to the amount of the fee imposed pursuant to subsection 1 of this Section. This additional fee shall be paid by the defendant in any felony , traffic, misdemeanor, local ordinance, or conservation case upon a judgment of guilty or grant of supervision.” (Emphases added.) 705 ILCS 105/27.3a(1.5) (West 2010).
Subsection (5) of section 27.3a of the Clerks Act (705 ILCS 105/27.3a(5) (West 2010))
requires the clerk to remit this additional assessment to the State Treasurer for deposit into the
State Police Operations Assistance Fund.
In
People v. Millsap
,
State Police operations assistance fee is a fine for the purpose of calculating a defendant’s VCVA fine. See 725 ILCS 240/10(b) (West 2010). Because this assessment is a fine, the circuit clerk could not properly impose this assessment against defendant. We vacate its imposition. The plain language of section 27.3a(1.5) clearly evidences the legislature’s intent this fine
be assessed
only once
in a defendant’s case. The fee is to be paid by the defendant “in any
felony, traffic, misdemeanor, local ordinance, or conservation case.” 705 ILCS 105/27.3a(1.5)
(West 2010). Because the language of the statute refers to
cases
, and not individual
convictions, the State Police operations assistance fine may be assessed only once per case.
See
Larue
,
after the trial court conditionally ordered the fee at defendant’s sentencing hearing. Defendant contends the imposition of this fee is void and must be vacated. The State concedes the $250 DNA analysis fee must be vacated. We accept the State’s concession. While the DNA analysis assessment is a fee (see People v. Guadarrama , 2011 IL App (2d)
100072, ¶ 13,
court’s holding in Marshall . At defendant’s July 2012 sentencing hearing, the court stated as follows: “If [defendant] has not already done so–and I can’t imagine how he has not–then he would have to submit a specimen for genetic testing in accordance with the statute, and only then would he have to pay the genetic marker grouping analysis fee of $250.” In other words, the court conditioned the imposition of the DNA analysis fee on whether defendant had previously submitted a specimen for testing. Defendant has attached as an appendix to his brief a printout from the Illinois State Police,
Division of Forensic Services, which shows defendant submitted a blood sample for DNA
analysis on February 17, 2005. The record confirms defendant previously submitted a DNA
sample for a previous case. The PSI states, “On [February 17, 2005], the defendant submitted a
DNA sample on a previous case.” Yet, the circuit clerk’s printout containing the fines and fees
assessed against defendant in this case shows he was assessed a $250 DNA analysis fee.
Because the record shows defendant submitted a DNA sample for analysis in 2005, the DNA
analysis fee imposed by the clerk in this case is void.
Id
. at 302,
imposed to reflect the value of all the crack cocaine seized on March 18, 2011. Specifically, the State argues defendant was found guilty of unlawful possession with intent to deliver 7.2 grams of crack cocaine, which included the 2.6 grams of crack cocaine located in Rosas’s vagina. The State argues the court failed to include the 2.6 grams of crack cocaine located in Rosas’s vagina in its calculation of the street-value fine. The State extrapolates the value of the additional crack cocaine based on the per-gram value of the crack cocaine, deduced from the evidence taken at trial on the value of the 4.6 grams found in the hotel room ($340 divided by 4.6 grams is $73.91 per-gram value), and seeks to increase the fine by $192 ($73.91 per gram multiplied by 2.6 grams is $192). In his reply brief, defendant characterizes the State’s argument as an unauthorized
cross-appeal. Specifically, defendant argues (1) the State’s contention is a free-standing claim of error; (2) the State may not properly appeal the imposition of a fine because such appeals by the State are not authorized by Illinois Supreme Court Rule 604(a) (eff. July 1, 2006); and (3) the order imposing the street-value fine is “at best” voidable, not void, and as such, the State forfeited its claim of error. *27 Defendant contends because he did not challenge the value of the street-value fine imposed
by the judge, “[t]he State’s argument is thus not in response to an argument about a ‘judgment
[***] from which the appeal is taken’ ” (quoting Ill. S. Ct. R. 615(b)(1) (eff. Jan. 1, 1967)). In
this case, defendant’s notice of appeal indicates he is challenging his conviction and sentence.
Therefore, defendant placed his entire sentence, which includes the street-value fine (see
Chester
,
be a “free-standing claim of error,” we would not change our conclusion the State could
properly point out this error. Rule 604(a) strictly limits the circumstances under which the
State may appeal a trial court’s judgment. Ill. S. Ct. R. 604(a) (eff. July 1, 2006); see also
People v. Ramos
,
People v. Malchow
,
located in the hotel room and the 2.6 grams later recovered from Rosas’s person. The State presented evidence of the street value of only the 4.6 grams recovered from the hotel room. Sergeant Baltzell testified the 17 individually wrapped packages had a street value of $340. The trial court orally ordered defendant to pay a $340 street-value fine as part of his sentence. The court ordered a sentence less than what is mandated by statute because the $340 street-value fine did not account for the 2.6 grams of crack cocaine later recovered from *28 Rosas’s person. Defendant’s sentence was void to the extent the street-value fine ordered by the court was less than the street-value of all the crack cocaine recovered in this case. Accordingly, on remand, the court must increase the street-value fine to reflect the value of all the crack cocaine seized in this case. 730 ILCS 5/5-9-1.1(a) (West 2010).
¶ 154 4. Other Issues With Fines and Fees ¶ 155 Upon our examination of the record, we found other errors neither party raised regarding
the imposition of the fines and fees in this case. For instance, the trial court, at defendant’s sentencing hearing, ordered defendant to pay a $2,000 mandatory assessment pursuant to section 411.2(a)(2) of the Illinois Controlled Substances Act (720 ILCS 570/411.2(a)(2) (West 2010)). The circuit clerk’s printout, however, shows the clerk only assessed a $1,275 mandatory assessment. The record provides no explanation for the disparity between what the court expressly ordered and what the clerk later assessed. Presumably, the clerk assessed the $2,000 mandatory assessment as ordered by the court and used the $725 credit to which defendant is entitled to offset part of the assessment, leaving $1,275 of the mandatory assessment outstanding. The trial court also ordered defendant to pay a crime-lab analysis fee of $100 during his
sentencing hearing. Although the circuit clerk’s printout contains an entry for the crime-lab analysis fee, no dollar amount is listed next to the entry. The record again provides no explanation for the disparity between what the court expressly ordered and the clerk’s failure to assess it. On remand, the trial court, when reimposing the fines vacated herein, should ensure the
amended sentencing judgment containing the fines and fees assessed against defendant contains the $2,000 mandatory assessment (720 ILCS 570/411.2(a)(2) (West 2010)) and the $100 crime-lab analysis fee (730 ILCS 5/5-9-1.4(b) (West 2010)) ordered by the court during defendant’s sentencing hearing, as well as the amounts creditable against either. C. Sentencing Credit We initially note the parties agree the PSI lists the incorrect dates for defendant’s first
period of pretrial incarceration. The PSI indicates defendant was in custody for this offense starting on March 21, 2011, and ending on July 1, 2011, when he posted bond. However, the parties agree and the record confirms defendant was in custody for this offense starting March 18, 2011, when he was arrested. The PSI also indicates defendant was in custody for this offense on July 2, 2012, which was the date he was sentenced. The parties agree defendant should not be credited for July 2, 2012. See People v. Williams , 239 Ill. 2d 503, 510, 942 N.E.2d 1257, 1262 (2011) (holding “the date a defendant is sentenced and committed to the Department [of Corrections] is to be counted as a day of sentence and not as a day of presentence credit”). The parties do not agree as to the total amount of days for which defendant is entitled
credit. Defendant initially argued he was entitled to two additional days of credit toward his sentence for his time in pretrial custody for March 18, 2011, through March 20, 2011 (less one *29 day for July 2, 2012), and $10 of additional monetary credit toward the creditable fines imposed upon him. The State responds by arguing defendant is not entitled to the two additional days of credit.
Specifically, the State argues where, as here, a defendant is out on bond for one offense and is
subsequently arrested and placed in custody for another offense, the defendant is returned to
custody on the initial offense when his or her bond is revoked or withdrawn (
People v.
Arnhold
,
Cook , where we awarded defendant additional credit against his sentence pursuant to section 5-8-7(c) of the Unified Code (730 ILCS 5/5-8-7(c) (West 2006)), which has since been renumbered as section 5-4.5-100(c) of the Unified Code. See People v. Clark , 2014 IL App (4th) 130331, ¶ 21. Section 5-4.5-100(c) of the Unified Code provides:
“CREDIT; TIME IN CUSTODY; FORMER CHARGE. An offender arrested on one charge and prosecuted on another charge for conduct that occurred prior to his or her *30 arrest shall be given credit on the determinate sentence or maximum term and the minimum term of imprisonment for time spent in custody under the former charge not credited against another sentence.” 730 ILCS 5/5-4.5-100(c) (West 2010). In Cook , the State charged the defendant, on November 16, 2007, with theft for conduct occurring on November 2, 2007. Cook , 392 Ill. App. 3d at 148, 910 N.E.2d at 209. On December 10, 2007, the State charged the defendant, in a separate case, with unlawful possession of a controlled substance. Id . The conduct underlying the possession charge was committed while the defendant was out on bail for the original theft charge. Id . On January 18, 2008, the State charged the defendant with aggravated criminal sexual abuse for conduct occurring on August 31, 2007. Id . (Later in the opinion, the majority states, “On January 30, 2008, while defendant was released on bond in both of his 2007 cases, defendant was arrested and charged with aggravated criminal sexual abuse (his 2008 case).” Id . at 149, 910 N.E.2d at 209.). In exchange for a guilty plea as to the theft and possession charges, the State agreed to drop the remaining charge of aggravated criminal sexual abuse. Id . at 148-49, 910 N.E.2d at 209. After his arrest on January 30, 2008, for aggravated criminal sexual abuse, the defendant
spent 26 days in custody before he, on February 25, 2008, surrendered his bond in the theft and
possession cases.
Id
. at 149,
App (4th) 130331. In Clark , we declined to follow the interpretation and analysis of section 5-4.5-100(c) set forth by the majority in Cook . Id . ¶ 25. Instead, we elected to follow the analysis set forth by Justice Pope in her dissent and held defendant was not entitled to additional credit where he sought credit against his sentence for the original charge for time he spent in custody on a subsequent charge. Id . ¶ 26. Justice Pope’s reading of subsection (c) in her dissent in Cook ( Cook , 392 Ill. App. 3d at
151-52,
11-CF-443, for time he spent in custody as a result of a subsequent charge, in case No.
12-CF-773. Because the initial charges were not dropped in favor of the subsequent charge,
defendant is not entitled to credit for May 21, 2013, to May 23, 2013, under section
5-4.5-100(c) of the Unified Code.
Id
.;
Clark
,
concerning the ever-expanding morass of fines and fees enacted by the legislature. See
People
v. Folks
,
Attorney’s office, the criminal defense bar, and the circuit clerk’s office–to ensure fines are
properly imposed by the trial court with the attorneys and the defendant in attendance and on
notice. This process requires active participation from the parties. We understand it is a burden
to navigate the murky waters of fines and fees, but it is a burden required by law. We recognize
it is the long-standing practice of the circuit court clerks to impose the fees and costs associated
with criminal cases, but this does not excuse the similar treatment of fines, which are a
component of the sentence to be imposed by the sentencing judge. Fines are a component of
the sentence, and we require the help of the parties to fulfill our duties in resolving these issues
on review. This requires the statement of facts in each brief to identify the fines imposed and
whether the court or circuit clerk imposed them, with citations to the record. See
Chester
, 2014
IL App (4th) 120564, ¶ 35,
to reimpose the mandatory fines vacated herein and impose all other fines mandated by statute.
We encourage the trial court to review the reference sheet this court provided in
Williams
,
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