People v. Allen

NO. 4-05-0683 Filed 1/16/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
LEAVELL D. ALLEN, ) No. 03CF2215
Defendant-Appellant. )
) Honorable
) Heidi Ladd,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the modified opinion of the
court:

Defendant, Leavell D. Allen, was charged with unlawful

delivery of a controlled substance for delivering 1 gram or more

but less than 15 grams of heroin (720 ILCS 570/401(c)(1) (West

2002)). Defendant pleaded not guilty but was convicted in May

2005 after a jury trial. The trial court sentenced defendant to

a 12-year prison term. He appeals. We affirm in part, vacate in

part, and remand with directions.

I. BACKGROUND

At defendant's jury trial, confidential informant

Charles Duckworth testified for the State. Duckworth, a con-

victed felon and former drug addict, was facing two counts of

unlawful delivery of a controlled substance. After Duckworth was

arrested on the pending drug charges, he decided to work with the

police in exchange for a recommendation of leniency. In 1994,

Duckworth was convicted of aggravated battery with a firearm and
aggravated discharge of a firearm and was sentenced to 11 years'

imprisonment. In 1990 and 1991, Duckworth was convicted of

criminal trespass to land, criminal sexual abuse, and criminal

damage to property.

On November 11, 2003, Duckworth, under the supervision

of Officers Jack Turner and Jaceson Yandell, bought heroin from

defendant and his codefendant, Kelvin Conerly. Duckworth knew

Conerly from high school and had heard Conerly sold drugs.

According to Duckworth, Conerly had given him a phone number with

which to contact him if Duckworth ever wanted to buy heroin.

Duckworth told the police about the number. On November 11,

2003, after installing an audio recording device, an officer

dialed the number, and Duckworth spoke with Conerly. After two

recorded phone calls, Duckworth arranged to buy two grams of

heroin from Conerly at the "usual spot" and for a prearranged

price.

After the second phone call, the police searched

Duckworth and his vehicle, fitted Duckworth with a concealed

video camera, and gave Duckworth $400 to buy two grams of heroin.

Duckworth drove to the location. The police had Duckworth in

their view the entire time. After 15 to 20 minutes, Conerly

pulled up in his car with defendant seated in the passenger seat.

Duckworth testified that he walked over to Conerly's car, spoke

with him, and passed the money to defendant, who then passed it

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to Conerly. Conerly put the money in his pocket. Defendant

handed Duckworth the drugs. Duckworth then walked back to his

car and spoke briefly with someone on his way. Duckworth drove

to a prearranged location, handed the officers the drugs, and had

the camera removed. The officers searched Duckworth and his

vehicle and returned his confiscated personal belongings.

On cross-examination, Duckworth stated that his mother

is really sick and his biggest fear is that she will die while he

is in prison. He agreed to the controlled buy because he wanted

to stay out of prison as long as possible to be with her.

During the buy, Duckworth wore a camera, but the camera only

showed Duckworth reaching in the car and pulling his hand back

out. The video did, though, show defendant sitting in the

passenger seat. On redirect examination, the State played the

portion of the tape that showed Conerly's car pull up, Duckworth

put his hand in the car and pull it out, and Duckworth walk to

get into his car.

Officer Turner testified for the State that he sets up

controlled buys wherein a confidential source, usually someone

with a criminal background, arranges to purchase a controlled

substance. The police search the confidential source, give that

person money, allow the sale to proceed, collect the controlled

substance, and search the source again. The confidential source

is watched the entire transaction. Turner was working with

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Duckworth. Turner corroborated Duckworth's version of the phone

calls to Conerly. Turner also stated that while Duckworth drove,

Turner remained behind him in a marked covert city-owned vehicle.

When Duckworth got close to the location of the buy, Turner

stopped following, and Officer Matthew Henson watched him from a

parked van near the location of the buy. Henson watched

Duckworth as he left the location of the buy and until Turner

began following Duckworth to the prearranged site for meeting

after the buy. At that location, Turner received the heroin and

searched Duckworth and his vehicle again. The State then played

the tapes of the phone calls.

The parties stipulated that a forensic scientist

determined that the substance Duckworth gave the police contained

heroin. Officer Yandell testified that he assisted Turner in

supervising the controlled buy, and he corroborated Turner's

version of the buy. Officer Henson testified that he watched

Duckworth after Turner stopped following, and he observed the

actual transaction. Henson's testimony corroborated Duckworth's

version. Henson could not, though, see what actually transpired

inside the car and could not identify defendant.

The State rested after Henson's testimony. Defendant

motioned for a directed verdict, which the trial court denied.

The defense rested. Defendant then motioned for directed ver-

dict, which the court again denied. While discussing jury

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instructions, defendant's attorney objected to the instruction on

accountability, arguing that the State presented no evidence of

accountability. The State countered that the accountability

instruction applied to Conerly, who was accountable for defen-

dant's action of handing the substance to Duckworth. The court

found sufficient evidence to justify giving the instruction and

overruled defense counsel's objection.

In closing arguments, the State argued that drug

dealers make easy money for just a few minutes of work consisting

of driving to a location and exchanging the drugs. The State

then argued the following:

"That's why Kelvin Conerly did this deal.

Leavell Allen went along with it. Maybe un-

wittingly, but he helped out on the deal.

Maybe he got something for his participation

from Kelvin Conerly. Maybe he didn't. We

don't know that. But we do know that he

helped out in this deal by handing over the

drugs."

Later in closing argument, the State read the jury instruction on

accountability and argued the following:

"Now, how can two people be convicted of one

drug delivery? It's by accountability. When

the right hand and the left hand are working

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 together to accomplish something, both are

accountable. And both can be found guilty

for one drug delivery, because they both

helped out on it. And that's what we have

here. We have Kelvin Conerly setting the

price with Chuckie Duckworth, giving Chuckie

Duckworth the number, taking the calls from

Chuckie Duckworth, setting up the meet loca-

tion, driving to the meet location, at the

meet location accepting the money from Chuckie

Duckworth. During the deal, we have Leavell

Allen taking the money from Chuckie Duckworth,

handing it over to Kelvin Conerly, and then

Leavell Allen handing over the heroin itself.

Both worked together, during the commission.

They were both aiding each other to get this

accomplished."

After closing arguments, the jury was given instruc-

tions and commenced deliberations. The jury then returned a

guilty verdict.

Defendant's motion for a new trial was denied. After a

sentencing hearing, defendant was sentenced to 12 years' impris-

onment and ordered to pay a local anticrime fee of $10, a

genetic-marker-grouping-analysis fee of $200, a street-value fine

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of $400, a lab fee of $100, and a mandatory assessment of $2,000.

Defendant was given credit for 300 days served prior to sentenc-

ing and credit for $1,500 against his fines. Defendant's motion

to reconsider sentence was also denied. This appeal followed.

II. ANALYSIS

Defendant argues that the State misstated the law when

it referred to defendant as "unwittingly" helping with the drug

deal as this allowed the jury to believe it could convict defen-

dant solely because he was present in the vehicle. Defendant

further argues he is entitled to an additional credit of one day

for time served prior to sentencing and an additional credit of

$5 toward his fines. Finally, defendant argues the imposition of

the following fines were in error: the spinal-cord-injury fee,

the local anticrime fee, and the penalties imposed by the circuit

clerk.

The State responds that the State's use of the word

"unwittingly" referred to defendant's financial motives, not his

intent to commit the crime, so the State did not misstate the

law. Further, the State argues that defendant waived the issue

and neither plain error nor ineffective assistance of counsel

should allow review as the evidence in this case was not closely

balanced. The State further argues that the sentence credit was

correct as the date of sentencing should not be included in the

calculations. Regarding the $5 spinal-cord-injury fine, the

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State notes that the constitutionality of collecting the fine

from drug offenders is the primary issue of People v. Jones, No.

101996, now pending before the Illinois Supreme Court. Pending

the outcome of the case, the State argues that the $5 fine is

constitutional. Finally, the State concedes that the $10 local

anticrime fee should be vacated as a void order because no

statutory authority authorizes such a fine when a defendant is

sentenced to prison, and the State concedes that the mandatory

fees and fines added by the circuit clerk should be vacated

because the trial court did not impose them.

A. Closing Argument Comment

Defendant claims he was denied his right to a fair

trial by the State's misstatement of the law, which allowed the

jury to convict him without finding that the State had proved his

intent to promote or facilitate the commission of the offense

beyond a reasonable doubt. The State counters that the prosecu-

tor's statement properly addressed defendant's financial motives

for helping Conerly when he used the word "unwittingly." Fur-

ther, even if the use of the word was error, the State argues the

issue is waived because defendant failed to object and the trial

court properly instructed the jury.

We agree that the prosecutor's use of the word "unwit-

tingly," while perhaps misleading out of context, was not a

misstatement of the law. The prosecutor used the word "unwit-

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tingly" immediately after discussing Conerly's financial motive

to commit the crime. Because defendant passed the money to

Conerly, the prosecutor could not say whether defendant received

a portion of the money and was motivated by the money. The

prosecutor, therefore, acknowledged that defendant's participa-

tion may not have been motivated by financial gains when he used

the word "unwittingly." The fact that defendant may not have

received a portion of the money does not negate the fact that he

actively participated in the transaction and through his action

intended to aid in the commission of the offense.

The State never suggested that the jury could convict

defendant based solely on the fact that he was present in the

vehicle. In closing arguments, the State defined accountability

then described how Conerly and defendant worked together to

commit the crime. Conerly set up the drug deal and drove to the

location. Defendant took the money, passed the money to Conerly,

and then passed the drugs to Duckworth. The State never argued

that defendant's presence in the car alone or his presence in the

car coupled with his knowledge of what was about to happen was

enough for the jury to convict. The State emphasized defendant's

active participation in the commission of the crime. When it

used the word "unwittingly," the State merely acknowledged that

it could not prove that defendant was motivated to participate

because of the money.

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 Because the State did not misstate the law in closing

arguments, defendant was not deprived of his right to a fair

trial, we affirm his conviction.

B. Sentence Credit

Defendant next argues that he is entitled to an addi-

tional day of credit for time served and an additional $5 credit

toward his fines because the day of sentencing should be included

in calculating the number of days he spent in custody. The State

contends that when a defendant is remanded to the Department of

Corrections (DOC) on the day of sentencing, the day of sentencing

should be excluded in calculating time spent in custody pre-

incarceration. See People v. Foreman, 361 Ill. App. 3d 136, 157,

836 N.E.2d 750, 768 (2005) (holding that a defendant will not be

credited for the day of sentencing when he is remanded to DOC

that day); People v. Stewart, 217 Ill. App. 3d 373, 377, 577

N.E.2d 175, 177 (1991) (denying credit for the day the defendant

was remanded from county jail to DOC); People v. Leggans, 140

Ill. App. 3d 268, 271, 488 N.E.2d 614, 616 (1986) (denying credit

to a defendant for the day he was transported from county jail to

DOC because DOC presumably credited the defendant for that day).

Citing People v. White, 237 Ill. App. 3d 967, 605

N.E.2d 720 (1992), defendant argues that courts have always

credited defendants with time spent in custody on the date of

sentencing. In White, though, the State conceded that the

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defendant was entitled to an additional day's sentencing credit

by calculating the days between September 17 to September 20,

1991, and December 12, 1992, to January 16, 1992. Earlier in the

facts of the case, the court stated that the defendant was

sentenced on January 16, 1992. Commenting only on the fact that

the days agreed to by the defendant and the State do in fact add

up to 40 rather than 39 days, the court granted an additional

day's sentencing credit. The opinion never discusses, though,

whether defendant was remanded to DOC on the day defendant was

sentenced. White does not, therefore, directly contradict the

cases cited by the State.

In this case, the record is clear that defendant was

remanded to DOC on the day of sentencing. Prior case law indi-

cates that a defendant should not be given credit for the day he

is remanded to DOC. Defendant, therefore, is only entitled to

300 days and $1,500 toward his fines, which is what he was

granted.

C. Fines and Fees

1. Spinal-Cord-Injury-Charge

Defendant claims the $5 spinal-cord-injury fee is

unconstitutional. The Supreme Court of Illinois has held the

charge at issue is a fine and is constitutional. People v.

Jones, No. 101996, slip op. at 28-29 (December 21, 2006), ___

Ill. 2d ___, ___, ___ N.E.2d ___, ___.

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 2. Other Fines and Fees

The State concedes, and we agree, that the trial court

had no statutory authority to impose a local anticrime fee when a

defendant is sentenced to prison. See People v. Beler, 327 Ill.

App. 3d 829, 837, 763 N.E.2d 925, 931 (2002). The State further

concedes that the court never mentioned the following mandatory

fines: $5 spinal-cord-injury-research fee, $100 trauma-center-

fund fine, $240 surcharge, and $4 surcharge. While these fees

are mandatory, the sentencing statute requires that they must be

imposed by the court. 730 ILCS 5/5-9-1.1(c) (West 2004) (spinal-

cord fee); 730 ILCS 5/5-9-1.1(b) (West 2004) (trauma-center

fund); 730 ILCS 5/5-9-1 (West 2004) (surcharges); see also

People v. Wisotzke, 204 Ill. App. 3d 44, 49-50, 561 N.E.2d 1310,

1313 (1990); People v. Rohlfs, 322 Ill. App. 3d 965, 971-72, 752

N.E.2d 499, 503-04 (2001). We have already determined that the

spinal-cord fee is unconstitutional. As for the remaining fines,

because the imposition of such fines is a judicial function

beyond the authority of the clerk, we remand for proper imposi-

tion of the fines by the trial court. See Wisotzke, 204 Ill.

App. 3d at 50, 561 N.E.2d at 1313; Rohlfs, 322 Ill. App. 3d at

972, 752 N.E.2d at 504.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

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judgment, except we vacate the fines imposed by the clerk, and

remand for proper imposition of the fines by the court.

Affirmed in part and vacated in part; cause remanded

with directions.

APPLETON and TURNER, JJ., concur.

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