People v. McNeal

FIFTH DIVISION
March 31, 2006

No. 1-04-2047

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 03 CR 16996
)
LAWRENCE McNEAL, ) Honorable
) Victoria A. Stewart,
Defendant-Appellant. ) Judge Presiding.

JUSTICE O'BRIEN delivered the opinion of the court:

Following a bench trial, defendant, Lawrence McNeal, was convicted of possession of a

controlled substance with intent to deliver and sentenced to six years' imprisonment. The court

also ordered defendant to pay $1,774, including a $1,000 drug assessment under section

411.2(a)(3) of the Illinois Controlled Substances Act (720 ILCS 570/411.2(a)(3) (West 2002))

and $5 toward the Spinal Cord Injury Paralysis Cure Research Trust Fund (Spinal Cord Fund)

pursuant to section 5-9-1.1(c) of the Unified Code of Corrections (730 ILCS 5/5-9-1.1(c) (West

2002)).

On appeal, defendant contends that: (1) his conviction must be reversed and the cause

remanded because nothing in the record indicates that he knowingly and intelligently waived his

right of confrontation before his trial counsel entered into stipulations regarding the chain of

custody and chemical composition of the recovered substances; (2) the court improperly assessed

a $1,000 drug assessment without first determining his present or future ability to pay; (3) he is

entitled to a $5-per-day credit toward the $1,000 drug assessment for the three days he spent in

custody prior to sentencing; and (4) the statute mandating that persons convicted of drug-related
No. 1-04-2047

offenses be assessed $5 for deposit into the Spinal Cord Fund violates due process. We affirm

defendant's conviction, credit him $15 toward the $1,000 drug assessment, and strike the $5 fee

for the Spinal Cord Fund.

At trial, Officer O'Donnell testified that at approximately 9 p.m. on July 10, 2003, he was

on duty as a surveillance officer in the area of 5656 South Ashland Avenue. Officer O'Donnell

was parked on the west side of Ashland Avenue in an undercover vehicle when he saw defendant

standing at a bus stop approximately 60 feet away.

Officer O'Donnell testified that he saw a pedestrian approach defendant and speak with

him. Defendant then pointed the pedestrian to codefendants Sharlene Martin and Maurice

Knowles, who were sitting on a door stoop. The pedestrian went to that location and had a

conversation with Mr. Knowles. The pedestrian gave money to Mr. Knowles, who in return

gave the pedestrian an item that he removed from a grey folded washcloth in his hand. The

pedestrian then left the area.

Officer O'Donnell testified that he moved his car to improve his surveillance point and

parked between defendant's position near the bus stop and Mr. Knowles' and Ms. Martin's

position at the door stoop. Officer O'Donnell was now approximately 15 feet away from

defendant, Mr. Knowles, and Ms. Martin. A second pedestrian approached defendant. Through

the partially opened window of the surveillance vehicle, Officer O'Donnell heard the second

pedestrian ask "where the blows were at." Defendant pointed to Mr. Knowles and Ms. Martin

and said, "right there." The second pedestrian approached Mr. Knowles and Ms. Martin and

engaged in a transaction similar to that of the first pedestrian. The second pedestrian left the

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scene.

Officer O'Donnell testified that Mr. Knowles then unfolded the washcloth and handed

some pink plastic bags to Ms. Martin, who stuffed the bags down the front of her pants. Mr.

Knowles and Ms. Martin walked over to defendant and Mr. Knowles handed defendant some

money. After defendant put the money in his pocket, all three of them crossed Ashland Avenue

and began walking north together. Officer O'Donnell radioed enforcement officers and told the

officers to stop them.

Officer O'Donnell testified that they were stopped, and that he approached Ms. Martin,

who took out of her pants five pink-tinted plastic bags containing suspected white heroin. The

bags were given to a female police officer and placed in a plastic bag and given inventory

number 10167805. Officer O'Donnell also performed a custodial search of defendant and

recovered $32.

The parties stipulated that if called to testify, Cotelia Fulcher, a forensic chemist for the

Illinois State Police crime lab, would testify that she received five items inventoried under

number 10167805 in a heat-sealed condition and that these items weighed a total of .7 grams.

Ms. Fulcher would also testify that she tested one of those recovered items and that it was her

opinion to a reasonable degree of scientific certainty that the item tested positive for the presence

of heroin in the amount of .1 gram.

For the defense, Ms. Nally Junior testified on direct examination that at approximately 9

p.m. on July 10, 2003, she was standing outside, near her mother's restaurant at 5701 South

Ashland Avenue. Defendant walked up to Ms. Junior and they stood together for approximately

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10 to 15 minutes. Two officers then walked up, and one of the officers grabbed defendant and

placed him up against a wall. The officer searched defendant, then grabbed him by the arm and

took him away. On cross-examination, Ms. Junior admitted that she could not remember exactly

what time these events occurred. Ms. Junior also agreed that she did not know what defendant

had been doing before he approached her.

The trial court convicted defendant of possession of a controlled substance with intent to

deliver and sentenced him to six years' imprisonment. The court also ordered defendant to pay

$1,774, including a $1,000 drug assessment under section 411.2(a)(3) of the Illinois Controlled

Substances Act (720 ILCS 570/411.2(a)(3) (West 2002)) and $5 toward the Spinal Cord Fund

pursuant to section 5-9-1.1(c) of the Unified Code of Corrections (730 ILCS 5/5-9-1.1(c) (West

2002)). Defendant filed this timely appeal.

First, defendant contends that his federal and state constitutional confrontation rights

were violated because the record lacks any indication that his attorney informed him of the legal

consequences of entering a stipulation as to the composition of the recovered substances and as

to the chain of custody.

In People v. Campbell, 208 Ill. 2d 203, 220-21 (2003), our supreme court held:

"[C]ounsel in a criminal case may waive his client's sixth amendment right of

confrontation by stipulating to the admission of evidence as long as the defendant does

not object to or dissent from his attorney's decision, and where the decision to stipulate is

a matter of legitimate trial tactics or prudent trial strategy. Where the stipulation includes

a statement that the evidence is sufficient to convict the defendant or where the State's

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entire case is to be presented by stipulation, we find that a defendant must be personally

admonished about the stipulation and must personally agree to the stipulation."

In People v. Phillips, 352 Ill. App. 3d 867, 871 (2004), a panel of the Third District

interpreted this holding as requiring "some affirmative showing or indication by the defendant in

the record that he or she did not object to or dissent from the attorney's decision to stipulate." In

People v. Scott, 355 Ill. App. 3d 741 (2005), another panel of the Third District disagreed with

Phillips and held that the record need not affirmatively show that the defendant was informed of

and explicitly waived his confrontation rights. Several panels of this district have agreed with

Scott. See People v. Orta, 361 Ill. App. 3d 342 (2005); People v. Foerster, 359 Ill. App. 3d 198

(2005); People v. Banks, 358 Ill. App. 3d 924 (2005).

In People v. Phillips, 217 Ill. 2d 270 (2005), our supreme court recently reversed the

Phillips appellate court opinion and effectively validated the holdings of Scott, Orta, Foerster,

and Banks. See also People v. Matthews, 362 Ill. App. 3d 953, 842 N.E.2d 150 (2005)

(discussing the effect of the supreme court decision in Phillips.) The supreme court determined

that the Phillips appellate court opinion had misinterpreted the holding of Campbell and held

that, under Campbell:

" '[D]efense counsel may waive a defendant's right of confrontation as long as the

defendant does not object and the decision to stipulate is a matter of trial tactics and

strategy.' [Citation.] However, *** a defendant must personally waive the right of

confrontation 'when the State's entire case is to be presented by stipulation and the

defendant does not present or preserve a defense ***, or where the stipulation includes a

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statement that the evidence is sufficient to convict the defendant.' [Citation.] We

attached no other restrictions to defense counsel's authority to stipulate to the admission

of evidence, and, except in those specified instances where the stipulation is tantamount

to a guilty plea, we imposed no obligations on the trial court or counsel to admonish the

defendant and ensure that the advisement is made a part of the record. Insofar as the

appellate court held otherwise, the court erred." (Emphasis in original.) Phillips, 217 Ill.

2d at 283.

The supreme court concluded:

"In sum, it is not necessary for either the court or counsel to admonish a defendant

about the implications and consequences of a stipulation, and defendant's explicit

agreement to the stipulation on the record is not required where *** (1) defense

counsel's decision to stipulate appears to have been a matter of trial tactics and strategy

and defendant does not object to counsel's decision, and (2) the State's entire case is not

presented by stipulation, the defendant does present or preserve a defense, and the

stipulation does not include a statement that the evidence is sufficient to convict."

(Emphasis in original.) Phillips, 217 Ill. 2d at 288.

In the present case, defendant did not object to the stipulation as to the chain of custody

and chemical composition of the recovered items. The decision to stipulate to the forensic

chemist's testimony was a matter of trial strategy, where the weight and nature of the recovered

items were not contested but the defense challenged the State's ability to prove the remaining

elements of the offense. Further, the stipulation did not indicate that the stipulated evidence was

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sufficient to convict defendant nor did the State present its entire case through stipulation.

Therefore, the requirements of our supreme court opinions in Campbell and Phillips have been

satisfied and defendant's confrontation rights were not violated.

Next, defendant raises two claims regarding the $1,000 drug assessment he was ordered

to pay pursuant to section 411.2(a)(3) of the Illinois Controlled Substances Act (720 ILCS

570/411.2(a)(3) (West 2002)). First, he contends the drug assessment really is a fine and should

not have been imposed without a finding of his ability to pay it as required by section 5-9-1(d) of

the Unified Code of Corrections (730 ILCS 5/5-9-1(d)(1) (West 2002)). Section 5-9-1(d)(1)

states:

"In determining the amount and method of payment of a fine, *** the court shall

consider:

(1) the financial resources and future ability of the offender to pay the fine[.]"

730 ILCS 5/5-9-1(d)(1) (West 2002).

Second, he contends that section 110-14 of the Code of Criminal Procedure of 1963 (725

ILCS 5/110-14 (West 2002)) entitles him to a $15 credit against the drug assessment because of

the three days he spent in presentence incarceration. Section 110-14 states:

"Any person incarcerated on a bailable offense who does not supply bail and

against whom a fine is levied on conviction of such offense shall be allowed a credit of

$5 for each day so incarcerated upon application of the defendant." 725 ILCS 5/110-14

(West 2002).

Defendant failed to raise either of these issues at sentencing or during a motion to

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reconsider sentence. However, the State admits that defendant was not properly admonished as

to his right to file a motion to challenge his sentence and the court failed to admonish him that

failure to raise any issues would result in their waiver. Accordingly, the State says that it does

"not contest review of [the sentencing] issue[s]." Moreover, the normal rules of waiver do not

apply to a sentence credit request. A defendant has the right to raise it for the first time on

appeal. People v. Fort, 362 Ill. App. 3d 1, 4 (2005).

Finally, the rule of waiver is a limitation on the parties, and not on the reviewing court.

In re Marriage of Kostusik, 361 Ill. App. 3d 103, 114 (2005). For all these reasons, we consider

the sentencing issues on the merits.

In the present case, the State contends the drug assessment is something other than a fine,

making incarceration credits and inquiries into ability to pay inapplicable. The State made these

same arguments in People v. Fort, 362 Ill. App. 3d 1 (2005). In Fort, this court noted that

several courts from other appellate districts had decided the credit issue and that they represent a

"shutout against the State." Fort, 362 Ill. App. 3d at 5. Further, when amending the statute, the

legislature had failed to change the results reached in those appellate decisions. Fort, 362 Ill.

App. 3d at 8. Finally, the legislative history of section 411.2 indicated an intent that the drug

assessment was to be a species of fine. Fort, 362 Ill. App. 3d at 7. For all these reasons, Fort

held that the drug assessment is a fine for which the defendant is entitled to the $5 credit per

each day incarcerated. Fort, 362 Ill. App. 3d at 8.

Fort further concluded that although the drug assessment is a kind of fine, there is no

need to remand for an inquiry into the defendant's ability to pay, as the drug assessment is

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mandatory and the legislature provided ways for it to be eliminated or reduced. Fort, 362 Ill.

App. 3d at 8. Specifically, the legislature provided that defendants may reduce or suspend

payment of the drug assessment by entering community service or entering an approved

substance abuse intervention or treatment program. 720 ILCS 570/411.2(e), (f) (West 2002).

In accordance with Fort, we hold that defendant's $1,000 drug assessment is a fine for

which he is entitled to $5-per-day credit for the three days he was incarcerated. Therefore,

defendant is entitled to a $15 credit against the $1,000 drug assessment. Also in accordance with

Fort, we decline defendant's request to remand for an inquiry into his ability to pay.

Next, defendant contends that his due process rights were violated when the trial court

ordered him to pay a $5 fee for deposit into the Spinal Cord Fund pursuant to section 5-9-1.1 of

the Unified Code of Corrections. 730 ILCS 5/5-9-1.1(a)(c) (West 2002)). Section 5-9-1.1 states:

"(a) When a person has been adjudged guilty of a drug related offense involving

possession or delivery of cannabis or possession or delivery of a controlled substance ***

a fine shall be levied by the court at not less than the full street value of the cannabis or

controlled substances seized.

***

(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 *** for deposit into the [Spinal Cord

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 ILCS5/5-

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9-1.1 (West 2002).

Defendant contends that collecting the $5 Spinal Cord Fund fee from a person convicted

of a drug-related offense is an arbitrary and unreasonable exercise of the State's police power.

Defendant argues that there is no rational relationship between the sale of a controlled substance

and the public interest that induced the legislature to create the Spinal Cord Fund.

All statutes are presumed to be constitutional, and the party challenging the statute's

validity bears the burden of clearly demonstrating a constitutional violation. Fort, 362 Ill. App.

3d at 8. If reasonably possible, the court must construe the statute so as to affirm its

constitutionality. Fort, 362 Ill. App. 3d at 8. Whether a statute is constitutional is a question of

law that is reviewed de novo. Fort, 362 Ill. App. 3d at 8. Where the statute does not affect a

fundamental constitutional right, we ask whether the statute bears a reasonable relationship to

the public interest intended to be protected and whether the means adopted are a reasonable

method of accomplishing the desired objective. Fort, 362 Ill. App. 3d at 8-9.

This court has examined the statute at issue and found it to be unconstitutional. People v.

Rodriguez, 362 Ill. App. 3d 44 (2005). The court stated:

"While driving under the influence of a controlled substance arguably bears a rational

relationship to spinal cord research, we cannot say that the simple possession of a

controlled substance, an offense that does not involve or require the use of a motor

vehicle, is reasonably related to spinal cord research. Furthermore, the parties have not

called to our attention any other statutes that impose a fee earmarked for the [Spinal Cord

Fund] upon defendants whose crimes did not involve motor vehicles. Accordingly, we

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find the relationship between possession of a controlled substance and the [Spinal Cord

Fund] simply too attenuated to survive defendant's due process challenge." Rodriguez,

362 Ill. App. 3d at 54. In accord, Fort, 362 Ill. App. 3d at 9-10.

The instant case involves possession of a controlled substance with intent to deliver, not

just mere possession as in Rodriguez and Fort. However, the analysis remains the same, as the

offense of possession of a controlled substance with intent to deliver does not require the use of a

motor vehicle. Accordingly, we adhere to Rodriguez and Fort and hold that the imposition of the

$5 fee violated defendant's substantive due process rights.

For the foregoing reasons, we affirm defendant's conviction, we amend the costs and fees

order to reflect a credit of $15 against the $1,000 "Assessment Controlled Substance," and we

strike from the order the $5 fee for the "Trauma Fund Spinal Cord."

Affirmed as modified.

GALLAGHER, P.J., and NEVILLE, J., concur.

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