People v. Davison

NOS. 4-07-0032, 4-07-0033, 4-07-0034 cons. Filed 2/15/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Clark County
TROY A. DAVISON, ) Nos. 03CF171
Defendant-Appellant. ) 04CF84
) 03CF165
)
) Honorable
) Tracy W. Resch,
) Judge Presiding.
_________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

Defendant, Troy A. Davison, in these consolidated

appeals, first appeals from his conviction for possession of a

deadly substance (720 ILCS 5/20.5-6 (West 2002)), arguing (1) the

evidence was not sufficient to prove guilt beyond a reasonable

doubt because anhydrous ammonia is not a "poisonous gas" within

the meaning of the statute defining the offense, (2) the sen-

tences he received for possession of a deadly substance, unlawful

possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1)

(West 2004)) and unlawful manufacture of a controlled substance

(720 ILCS 570/401(c)(6.5) (West 2002)) were excessive; and (3)

the trial court's order directing the balance of his posted bond

money, after restitution, court fees, and public-defender reim-

bursement in each case be split equally between the Clark County

Sheriff's office and the Southeast Illinois Drug Task Force. For

the following reasons, we reverse defendant's conviction for

possession of a deadly substance; reverse defendant's conviction
and sentence for unlawful possession of a stolen vehicle and

remand with directions; and affirm defendant's conviction of

unlawful manufacture of a controlled substance but reverse his

sentence therein and remand with directions.

I. BACKGROUND

In Clark County case No. 03-CF-165, our case No. 4-07-

0034, the State brought numerous charges against defendant

stemming from an incident on December 5, 2003. On December 8,

2003, the State filed the charges. On December 9, 2003, defen-

dant posted bond of $3,500; that same day, he assigned his bond

to Kelly Houser.

In Clark County case No. 03-CF-171, our case No. 4-07-

0032, while defendant was out on bond from case No. 03-CF-165,

the State charged defendant with unlawful transportation of

anhydrous ammonia, possession of a deadly substance, unlawful

possession of a stolen vehicle, and unlawful possession of a

vehicle with a removed vehicle identification number based on a

December 23, 2003, incident. On January 9, 2004, defendant

posted bond of $7,500; in January 2004, he executed a bond

assignment to Julie Nasser.

Then on June 21, 2004, in Clark County case No. 04-CF-

84, our case No. 4-07-0033, the State charged defendant with

unlawful possession of a stolen vehicle based on conduct of June

19, 2004. On June 29, 2004, defendant posted $10,000 bond; that

same day, he assigned his bond to Dawn Kemper.

On August 10, 2004, in case No. 03-CF-171, the trial

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court granted defendant’s motion to sever counts, and the State

proceeded to a jury trial on the sole charge of possession of a

deadly substance. On August 11, 2004, the jury convicted defen-

dant of that offense. Defendant left the courthouse after the

jury retired to deliberate and never returned that day.

The trial court scheduled a pretrial hearing for August

16, 2004, for both case Nos. 03-CF-165 and 04-CF-84. When

defendant failed to appear, the court ordered his bond forfeited

and issued a warrant for his arrest. The court sent notice to

defendant of a bond forfeiture hearing to be held on September

20, 2004. Defendant failed to appear and the court continued the

hearing for two days. The State filed an objection to the bond

forfeiture, expressing concern about restitution for victims and

the fact law-enforcement agencies had expended considerable time

investigating defendant's criminal activities. On September 22,

2004, the court entered a forfeiture judgment but ordered the

clerk not to distribute the funds until further order.

On September 29, 2004, in case No. 03-CF-171, defense

counsel filed a posttrial motion on defendant’s behalf, which the

court denied. The court scheduled sentencing for December 20,

2004.

Authorities eventually apprehended defendant. On

November 9, 2004, defendant pleaded guilty to unlawful possession

of a stolen vehicle in case No. 04-CF-84. On December 13, 2004,

in case No. 03-CF-165, defendant pleaded guilty to unlawful

manufacture of a controlled substance in that he manufactured

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more than 5 grams, but less than 15 grams, of a substance con-

taining methamphetamine in violation of section 401(c)(6.5) of

the Illinois Controlled Substances Act (720 ILCS 570/401(c)(6.5)

(West 2002)).

On December 20, 2004, the trial court held a combined

sentencing hearing for all three cases. The court sentenced

defendant to concurrent prison terms of 26 years for possession

of a deadly substance in case No. 03-CF-171, 7 years for unlawful

possession of a stolen motor vehicle in case No. 04-CF-84, and 15

years for unlawful manufacture of a controlled substance in case

No. 03-CF-165.

On January 18, 2005, defendant filed a motion to with-

draw guilty plea and vacate sentence as to the guilty pleas he

entered in case Nos. 03-CF-165 and 04-CF-84; and he filed a

motion to reduce sentence as to each case. On May 11, 2005, he

filed an amended motion to reconsider sentence; and on May 15,

2005, he filed an amended motion to withdraw guilty pleas. On

July 19, 2006, the trial court denied the amended motion to

withdraw guilty pleas. On November 27, 2006, defendant then

filed a second amended motion to reconsider sentence; on January

8, 2007, the court denied it. These appeals, which this court

consolidated, followed.

II. ANALYSIS

A. Is Anhydrous Ammonia a "Poisonous Gas" for Purposes of the
Offense of Possession of a Deadly Substance?

In case No. 03-CF-171, defendant was charged with and

convicted of possession of a deadly substance under section 20.5-

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6 of the Criminal Code of 1961 (Code) (720 ILCS 5/20.5-6 (West

2002)). This charge was severed for trial from charges of unlaw-

ful transportation of anhydrous ammonia, unlawful possession of a

stolen vehicle, and unlawful possession of a vehicle with a

removed vehicle identification number.

Section 20.5-6(a) provides as follows:

"(a) A person commits the offense of

possession of a deadly substance when he or

she possesses, manufactures[,] or transports

any poisonous gas, deadly biological or chem-

ical contaminant or agent, or radioactive

substance either with the intent to use such

gas, biological or chemical contaminant or

agent, or radioactive substance to commit a

felony or with the knowledge that another

person intends to use such gas, biological or

chemical contaminant or agent, or radioactive

substance to commit a felony." 720 ILCS

5/20.5-6(a) (West 2002).

This offense is a Class 1 felony. 720 ILCS 5/20.5-6(b) (West

2002).

The proposition anhydrous ammonia is a poisonous gas

for purposes of section 20.5-6 is an essential element of the

State's case here. Defendant argues the evidence was not suffi-

cient to prove him guilty beyond a reasonable doubt because

anhydrous ammonia is not a "poisonous gas" within the meaning of

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section 20.5-6, that is, possession of a deadly substance.

How a statute is interpreted is a question of law

reviewed de novo. In re Marriage of Rogers, 213 Ill. 2d 129,

135-36, 820 N.E.2d 386, 389-90 (2004). In this case, the trial

court was not specifically asked to interpret the statute on

possession of a deadly substance as defendant's strategy at trial

was to argue the State did not prove anhydrous ammonia was a

deadly substance.

Defendant relies on People v. Qualls, 365 Ill. App. 3d

1015, 851 N.E.2d 767 (2006), to support his argument. In Qualls,

the Fifth District held anhydrous ammonia is not a "poisonous

gas" for purposes of section 20.5-6 of the Code and reversed the

defendant's conviction. Qualls, 365 Ill. App. 3d at 1021, 851

N.E.2d at 772. The State argues Qualls was wrongly decided and

should not be followed. We disagree and find Qualls to be cor-

rectly decided.

In Qualls, the defendant was charged solely with pos-

session of a deadly substance when his truck went in a ditch

after the anhydrous ammonia he was transporting in a pitcher

spilled while driving. Qualls, 365 Ill. App. 3d at 1017, 851

N.E.2d at 769. The defendant filed a motion to dismiss, arguing

"'anhydrous ammonia was not intended by the legislature to be a

deadly substance under the Possession of a Deadly Substance

statute.'" Qualls, 365 Ill. App. 3d at 1018, 851 N.E.2d at 769.

The trial court denied the motion and the case proceeded to a

stipulated bench trial. Qualls, 365 Ill. App. 3d at 1018, 851

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N.E.2d at 769. The trial court found the defendant guilty. He

appealed, and the only issue on appeal was whether anhydrous

ammonia is a "poisonous gas" as the term is used in section 20.5-

6(a) of the Code. Qualls, 365 Ill. App. 3d at 1018, 851 N.E.2d

at 770.

The defendant argued the term "poisonous gas" should be

interpreted to mean gas designed to kill or injure or tending to

kill or injure "in normal use," such as sarin gas or mustard gas.

Qualls, 365 Ill. App. 3d at 1019, 851 N.E.2d at 770. He argued

the term should not be read to include gases merely deadly or

injurious "in particular unsafe circumstances," such as anhydrous

ammonia or carbon monoxide. Qualls, 365 Ill. App. 3d at 1019,

851 N.E.2d at 770. The State argued the term should be broadly

interpreted to mean any gas "capable of causing death or severe

injury." Qualls, 365 Ill. App. 3d at 1019, 851 N.E.2d at 770.

These are essentially the same arguments raised in this case.

As noted in Qualls, 365 Ill. App. 3d at 1019, 851

N.E.2d at 770, the primary objective in construing the meaning of

a disputed statute is "to ascertain and give effect to the intent

of the legislature." People v. Robinson, 172 Ill. 2d 452, 457,

667 N.E.2d 1305, 1307 (1996). All rules of statutory construc-

tion are subordinate to this cardinal principle. In re Detention

of Powell, 217 Ill. 2d 123, 135, 839 N.E.2d 1008, 1015 (2005).

"The best indication of legislative intent is the statutory

language, given its plain and ordinary meaning." In re R.L.S.,

218 Ill. 2d 428, 433, 844 N.E.2d 22, 26 (2006). "A statute is

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ambiguous if it permits more than one reasonable interpretation."

People v. Robinson, 217 Ill. 2d 43, 55, 838 N.E.2d 930, 937

(2005).

The Qualls court noted the term "poisonous gas" is not

defined in section 20.5-6 or otherwise under Illinois law.

Therefore, a dictionary may be consulted. Qualls, 365 Ill. App.

3d at 1019, 851 N.E.2d at 770-71; see People v. Collins, 214 Ill.

2d 206, 214-15, 824 N.E.2d 262, 266 (2005).

The Qualls court consulted the Webster's Third New

International Dictionary and found something is "poisonous" if it

"'is poison'" or "'has the qualities or effects of poison.'"

Qualls, 365 Ill. App. 3d at 1019, 851 N.E.2d at 771, quoting

Webster's Third New International Dictionary 1751 (1993). "Poi-

son" means "a substance (as a drug) that in suitable quantities

has properties harmful or fatal to an organism when it is brought

into contact with or absorbed by the organism." Webster's Third

New International Dictionary 1751 (1993). "Poison gas" is de-

fined as "a poisonous gas or a liquid or solid giving off poison-

ous vapors designed (as in chemical warfare) to kill, injure, or

disable by inhalation or contact." Webster's Third New Interna-

tional Dictionary 1751 (1993).

Using these definitions, the term "poisonous gas" could

reasonably be construed to mean either a gas "designed (as in

chemical warfare) to kill, injure, or disable by inhalation or

contact" or a gas that "in suitable quantities has properties

harmful or fatal to an organism when it is brought into contact

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with or absorbed by the organism." Thus, as the term is used in

section 20.5-6, it is ambiguous. Qualls, 365 Ill. App. 3d at

1020, 851 N.E.2d at 771. Because it is ambiguous, the purpose of

the law, the evils it was intended to remedy, and the legislative

history behind it must be considered. Stroger v. Regional Trans-

portation Authority, 201 Ill. 2d 508, 524, 778 N.E.2d 683, 693

(2002). Where a statute is ambiguous, the rule penal statutes

should be construed to afford lenity to the accused applies.

People v. Roberts, 214 Ill. 2d 106, 118, 824 N.E.2d 250, 257

(2005).

The Qualls court also applied the doctrine of noscitur

a sociis. This phrase means a word is known by the company it

keeps. Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 6 L. Ed.

2d 859, 863, 81 S. Ct. 1579, 1582 (1961). Applying this doc-

trine, the meaning of ambiguous words in a statute may be ascer-

tained by reference to the meaning of words or phrases associated

with it and the doctrine is relied on to avoid (1) ascribing to

one word a meaning so broad it is inconsistent with accompanying

words and (2) giving unintended breadth to a legislative act. As

the Qualls court noted, the term "poisonous gas" appears in

conjunction with the terms "deadly substance" and "deadly biolog-

ical or chemical contaminant or agent," thus indicating the term

"poisonous gas" is intended to mean an inherently deadly or

injurious gas, as opposed to a potentially deadly or injurious

gas. Qualls, 365 Ill. App. 3d at 1020, 851 N.E.2d at 771.

A review of the legislative intent when the statute was

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being debated supports this conclusion. In the Senate, the bill

was touted as an "anticrime initiative" aimed at terrorism. 91st

Ill. Gen. Assem., Senate Proceedings, March 25, 1999, at 106

(statements of Senator Dillard). During later proceedings before

the Criminal Law Judiciary Committee of the House of Representa-

tives, it was noted the statute was necessary because Illinois

had no law criminalizing possession of "biological warfare chemi-

cals" or "poison gas" such as "sarin gas." 91st Ill. Gen.

Assem., House Proceedings, April 22, 1999, Judiciary II Committee

Hearing (taped debate on Senate Bill 509). Thus, we agree with

the Qualls court; that is, the legislative history "reveals the

statute was enacted to criminalize the unlawful possession of

inherently deadly or injurious substances, such as gases de-

signed, as in chemical warfare, to kill or injure." Qualls, 365

Ill. App. 3d at 1021, 851 N.E.2d at 771-72.

Finally, "[i]n determining the intention of the General

Assembly ***, it is permissible to look to later actions of the

legislature." Gregory v. County of LaSalle, 91 Ill. App. 2d 290,

297, 234 N.E.2d 66, 70 (1968). On September 11, 2005, section 25

of the Methamphetamine Control and Community Protection Act (the

Act) (720 ILCS 646/25 (West Supp. 2005)) became law. Under

section 25 of the Act, it is an offense to possess, procure,

transport, store, or deliver anhydrous ammonia with intent it be

used to manufacture methamphetamine. 720 ILCS 646/25(a) (West

Supp. 2005). This is a Class 1 offense or Class X if aggravated

circumstances exist. 720 ILCS 646/25(a)(2), (b)(2) (West Supp.

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2005). This law specifically prohibits the possession, procure-

ment, transportation, storage or delivery of anhydrous ammonia

with the intent it be used to manufacture methamphetamine.

Therefore, it supports the conclusion the term "poisonous gas" in

section 20.5-6 of the Code was not meant to include anhydrous

ammonia.

We find, as did the court in Qualls, the State's inter-

pretation of the term "poisonous gas" in section 20.5-6 of the

Code is contradicted by the statute's legislative history and, if

followed, would give the statute unintended breadth. Anhydrous

ammonia is not a "poisonous gas" for purposes of section 20.5-6

of the Code. As proving defendant possessed a poisonous gas is

an essential element of the charge, the State did not prove him

guilty beyond a reasonable doubt of the offense of possession of

a deadly substance. We accordingly reverse defendant's convic-

tion of that offense.

B. Excessive Sentences

Defendant next argues his prison sentences are exces-

sive in light of his lack of a prior felony record, his alleged

"very high" rehabilitative potential, and the nature of his

offenses.

Where sentences chosen by a trial court are statutorily

authorized, a reviewing court has the power to disturb the sen-

tences only if the trial court abused its discretion. See People

v. Jones, 168 Ill. 2d 367, 373-74, 659 N.E.2d 1306, 1308 (1995).

However, a sentence not conforming to a statutory requirement is

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void and may be corrected at any time. People v. Pippen, 324

Ill. App. 3d 649, 653, 756 N.E.2d 474, 478 (2001).

The trial court, in sentencing defendant to a total of

26 years in prison, believed "concurrent sentences of sufficient

length" were "the best means of protecting the public" from

defendant's criminal conduct. However, the trial court also

noted the offenses in Nos. 03-CF-171 and 04-CF-84 were each

committed while out on bond from either No. 03-CF-165 or both

Nos. 03-CF-165 and 03-CF-171, respectively. The trial court did

not acknowledge section 5-8-4(h) of the Unified Code of Correc-

tions (Unified Code) requires sentences for felonies be served

consecutively if the felonies are committed while on pretrial

release for a separate felony. 730 ILCS 5/5-8-4(h) (West 2004).

Where sentences are mandatorily consecutive and the

defendant is sentenced to concurrent sentences, the sentences are

void and the remedy is to remand for imposition of consecutive

sentences. People v. Harris, 203 Ill. 2d 111, 121, 784 N.E.2d

792, 798 (2003). When a trial court's decision to impose concur-

rent prison terms is deemed void, the appellate court has the

authority to correct the sentence and the appellate court is not

barred from doing so by supreme court rules limiting the State's

right to appeal or prohibiting the appellate court from increas-

ing a defendant's sentence. People v. Arna, 168 Ill. 2d 107,

113, 658 N.E.2d 445, 448 (1995). Thus, we can, if we so desire,

remand simply for the trial court to amend its sentencing order

to make sentences already given consecutive. People v. Karmatzis,

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373 Ill. App. 3d 714, 719, 871 N.E.2d 118, 122 (2007) (Fourth

District). However, we can also do as the supreme court did in

Arna when it affirmed the appellate court decision to remand for

a determination of the "'appropriate sentences to be imposed

consecutively.'" Arna, 168 Ill. 2d at 111-12, 115, 658 N.E.2d at

448, 449.

Defendant here was subject to mandatory consecutive

sentences but instead received concurrent sentences; thus, the

sentences are void. Because they are void, we do not consider

defendant's arguments as to their excessiveness. Further, we

will not remand the cases here simply for amending the sentencing

order to make the remaining sentences consecutive. The trial

court, in sentencing defendant to concurrent terms of 26 years,

relied upon his conviction for possession of a deadly substance

in case No. 03-CF-171; and we have reversed that conviction, and

with it, the 26-year prison term to which defendant was sen-

tenced. We deem it appropriate to remand for a new sentencing

hearing on the remaining convictions, the sentences to be served

consecutively.

As noted by defendant, however, this case presents an

additional wrinkle. Defendant entered a guilty plea in No. 04-

CF-84 and was not admonished at the guilty-plea hearing he was

subject to mandatory consecutive sentencing because the offense

occurred while on pretrial release for Nos. 03-CF-165 and 03-CF-

171. Defendant also notes he was not admonished as to consecu-

tive sentences when he entered his guilty plea in case No. 03-CF-

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165. However, he is not subject to a mandatory consecutive

sentence on his conviction in No. 03-CF-165 as he was not on

pretrial release when he committed the offense.

Illinois Supreme Court Rule 402(a) provides a guilty

plea shall not be accepted without the trial court first inform-

ing a defendant of minimum and maximum sentences prescribed by

law, including, where applicable, any penalty to which he may be

subject due to consecutive sentences. 177 Ill. 2d R. 402(a).

Where a trial court fails to advise a defendant his sentences are

mandatorily consecutive, his plea is involuntary. People v.

McCracken, 237 Ill. App. 3d 519, 521-22, 604 N.E.2d 1104, 1106

(1992). Informing a defendant merely of the possibility of

consecutive sentences when they are mandatory is an inadequate

admonishment under Rule 402(a) and "the defendant should be

allowed to withdraw his guilty plea and plead anew." People v.

Dorethy, 331 Ill. App. 3d 504, 507, 771 N.E.2d 609, 611 (2002).

Defendant did not raise this issue in his motion to

withdraw guilty plea in the trial court, and generally, any issue

not raised in a defendant's motion to withdraw guilty plea shall

be deemed waived on appeal (210 Ill. 2d R. 604(d)). However, a

sentence not conforming to statutory requirements is void (Arna,

168 Ill. 2d at 113, 658 N.E.2d at 448) and may be challenged at

any time (People v. Malchow, 306 Ill. App. 3d 665, 675-76, 714

N.E.2d 583, 591 (1999)). In addition, where a trial court "fails

to give a defendant the admonishments required by Rule 402, it

may constitute plain error, an exception to the waiver rule."

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McCracken, 237 Ill. App. 3d at 520, 604 N.E.2d at 1105; 134 Ill.

2d R. 615.

We find the failure to admonish defendant he was sub-

ject to mandatory consecutive sentences at the guilty-plea hear-

ing in case No. 04-CF-84 to be plain error and his guilty plea

not voluntary. Thus, taking all the sentencing issues together,

case Nos. 03-CF-165 and 04-CF-84 should be remanded for new

sentencing hearings but defendant also should be allowed the

opportunity to withdraw his guilty plea in case No. 04-CF-84.

C. Disbursement of Bond Money

Finally, defendant contests the trial court's order for

the balance of posted bond money after reimbursement for public-

defender fees and lab costs to go to the Clark County sheriff's

office and the Southeast Illinois Drug Task Force. The court

stated it thought this was appropriate because the sheriff's

department and task force spent large amounts of time and great

sums of money pursuing defendant and others as a result of defen-

dant's criminal conduct. At sentencing, defense counsel ex-

pressly acquiesced in this distribution of the bond money.

Defendant now argues the trial court did not state its

authority to distribute the bond money in this way and defendant

has not found any statute allowing the court to make such a

disbursement when a defendant is sentenced to prison. Sections

5-6-3(b)(12) and 5-6-3.1(c)(12) of the Unified Code provide for

the imposition of fines for the purpose of reimbursing local

anti-crime programs (730 ILCS 5/5-6-3(b)(12), 5-6-3.1(c)(12)

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(West 2004)) but these provisions apply to conditions of proba-

tion, conditional discharge, and supervision. "No similar provi-

sions authorize imposition of [these] fine[s] when a sentence of

incarceration is imposed." People v. Beler, 327 Ill. App. 3d

829, 837, 763 N.E.2d 925, 931 (2002). Defendant contends the

portion of his bond money ordered to the sheriff's department and

the drug task force should be vacated and the money refunded to

defendant.

Defendant is mistaken in considering the sums at issue

to remain part of posted bond money. On August 16, 2004, defen-

dant failed to appear for pretrial hearing in both Nos. 03-CF-165

and 04-CF-84, and the trial court issued an arrest warrant. The

court ordered his bond to be forfeited in both cases. A hearing

was set on the forfeiture, and defendant failed to appear. On

September 22, 2004, the trial court entered a forfeiture judgment

but ordered the clerk not to distribute the funds until further

order.

At the hearing on defendant's posttrial motion, the

trial court noted it ordered distribution of the money previously

forfeited and added defendant had never challenged the bond

forfeiture "and is not challenging it here." The court concluded

defendant lacked standing to challenge the distribution of the

money.

Defendant also mischaracterizes the trial court's order

as an unauthorized fine. The court did not order defendant to

pay these agencies. Instead, the court distributed the forfeited

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bond deposits.

Defendant is barred from objecting to the distribution

of his forfeited bond money under the doctrine of standing. This

doctrine ensures "only parties with a genuine interest in the

outcome of a case will raise and argue its issues." In re M.T.,

221 Ill. 2d 517, 528, 852 N.E.2d 792, 799 (2006). Defendant's

bond had been forfeited, and he no longer had any right to the

funds. A further reason defendant was not entitled to a refund

of his bond was he assigned his bond rights to others. Defendant

was not entitled to a refund of funds already forfeited and

assigned and, thus, he had no real interest in where these for-

feited funds were distributed. Because the bonds had been for-

feited, vacating the trial court's order for distribution would

simply result in a transfer of the remaining funds to the Clark

County treasury. See 725 ILCS 5/110-7(g) (West 2004).

III. CONCLUSION

For the foregoing reasons, we (1) reverse defendant's

conviction for possession of a deadly substance, (2) reverse

defendant's conviction and sentence for unlawful possession of a

stolen vehicle so defendant may be afforded the opportunity to

withdraw his guilty plea and plead anew (after being admonished

under Rules 605(b)(3) and (b)(4), for example, that any charges

will be reinstated and set for trial (210 Ill. 2d Rs. 605(b)(3),

(b)(4))) and for resentencing; and (3) affirm defendant's convic-

tion in No. 03-CF-0165 for unlawful manufacture of a controlled

substance but reverse his sentence therein and remand for a new

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sentencing hearing on that conviction and any ensuing conviction

in No. 04-CF-84.

No. 4-07-0032, Reversed.

No. 4-07-0033, Reversed and remanded with directions.

No. 4-07-0034, Affirmed in part, reversed in part, and

remanded with directions.

STEIGMANN, J., concurs.

MYERSCOUGH, J., specially concurs in part and dissents

in part.

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 JUSTICE MYERSCOUGH, specially concurring in part and

dissenting in part:

I concur in the majority's resolution of Nos. 4-07-0033

and 4-07-0034.

However, with respect to the majority's resolution of

No. 4-07-0032, I respectfully dissent. I would affirm the trial

court in its entirety on the conviction and sentence for posses-

sion of a deadly substance. The majority and the Qualls court

erroneously find the statute ambiguous because the term "poison-

ous gas" has two definitions. Such an interpretation of ambigu-

ity would necessarily render all statutes ambiguous. Nearly

every word in Webster's has at least two meanings.

There is no need here to apply the rule of noscitur a

sociis. The meaning of the statute here is clear yet ignored by

the majority and the Qualls court. Possession of any poisonous

gas with intent to commit a felony is illegal and a Class 1

felony, whether that gas was designed to kill or be harmful in

quantity on contact. The use of the term "any" denotes a broad

category of gases, not a narrow category limited only to "de-

signer gases." The majority unreasonably reads the statute

narrowly, excluding other deadly toxic gases--not only anhydrous

ammonia, but others such as chlorine, gasoline, and propane.

Anhydrous ammonia is not only fatal in suitable quanti-

ties but is the precursor to ammonium nitrate, also a fertilizer,

which along with fuel oil. exploded the Murrah Building in

Oklahoma City in April 1995. Moreover, chlorine was largely used

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as a weapon in World War I. See D. Cave & A. Fadam, Iraqi Mili-

tants Use Chlorine in 3 Bombings, N.Y. Times, February 21, 2007,

available at

http://www.nytimes.com/2007/02/21/world/middleeast/21cnd-

baghdad.html (last visited January 31, 2008). More recently,

terrorists in Iraq have relied on small bombs to set off chlorine

tanker trucks. See D. Cave & A. Fadam, Iraqi Militants Use Chlo-

rine in 3 Bombings, N.Y. Times, February 21, 2007, available at

http://www.nytimes.com/2007/02/21/world/middleeast/21cnd-

baghdad.html (last visited January 31, 2008).

The majority and the Qualls court mistakenly exclude

potentially deadly or injurious gases because the words "any

poisonous gases" appears in proximity to "deadly substance" and

"deadly biological or chemical contaminant or agent." 720 ILCS

5/20.5-6 (West 2002). However, "deadly substance" is actually

defined as a number of categories of poison, including "any

poisonous gas" and "deadly biological or chemical contaminant or

agent." Certainly, then, the poisonous gas must be deadly. But

the mere fact "poisonous gas" is included in a series of other

deadly substances does not reflect a legislative intent to ex-

clude potentially deadly gases. Nowhere in the statute is there

any language to include only inherently but not potentially

poisonous gases.

Finally, the fact that the legislature subsequently

passed a law to address the methamphetamine explosion does noth-

ing to affect the crime of possession of a deadly substance. The

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majority and the Qualls court in reality focus on the felony for

which the poisonous gas was to be used. In essence, since

Davison was going to manufacture methamphetamine and not commit

what is ordinarily defined as "an act of terror," the majority

excludes this crime. However, the legislature did not do so. We

must give effect to the plain language of the statute. If this

is not what the legislature intended, it can amend the statute.

Such is not our role.

Since the State met its burden, I would affirm.

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