NO. 4-09-0511 Filed 11/1/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Macon County JONAS D. BOND, ) No. 04CF1424 Defendant-Appellant. ) ) Honorable ) Theodore E. Paine, ) Judge Presiding. _________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In February 2005, a jury convicted defendant, Jonas D.
Bond (born July 16, 1987), of possession of a controlled
substance with intent to deliver (cocaine) (720 ILCS
570/401(c)(2) (West 2004)) (count I) and possession of a
controlled substance (cocaine) (720 ILCS 570/402(c) (West 2004))
(count II). In April 2005, the trial court sentenced him to 10
years’ imprisonment and imposed a $220 street-value fine.
Defendant appeals, arguing (1) he was denied effective
assistance of counsel, (2) the evidence was insufficient to prove
him guilty of possession with intent to deliver beyond a
reasonable doubt, and (3) the trial court erred in imposing a
$220 street-value fine. We affirm as modified and remand with
directions.
I. BACKGROUND
Prior to the start of trial, defendant filed a motion in limine to exclude the State’s use of defendant’s juvenile
adjudications for impeachment purposes. Defendant sought to
exclude the following adjudications: robbery, a Class 2 felony;
possession of firearms, a Class 4 felony; and retail theft with a
prior robbery conviction, a Class 4 felony. The trial court
granted defendant’s motion with respect to the firearm-possession
adjudication, but denied it as to the other adjudications.
During defendant’s February 2005 trial, Decatur police
officer Thomas Pratt testified he arrested defendant on November
22, 2004, after defendant ran from a vehicle Pratt had pulled
over. Defendant testified he ran because he was scared. During
a search of defendant, Pratt found a piece of white paper
containing five small white rock-like items wrapped in a clear
plastic bag. The bag contained 1.3 grams of cocaine. According
to defendant’s testimony, at the time of his arrest, he did not
know it was crack or cocaine but he did know it was some kind of
drug. Defendant explained that when he got into the vehicle, the
driver asked him to hold the drugs as a favor for him because the
driver was on parole. Defendant testified he had no intention of
selling the drugs and was simply holding them for the driver
until defendant got home. Defendant testified he was just around
the corner from his home when police stopped the vehicle.
While defendant’s trial counsel questioned him
regarding various facts during direct examination, defendant’s
- 2 - counsel did not ask him if he had any prior delinquency
adjudications. The State also did not raise the question of
defendant’s juvenile adjudications during its cross-examination.
Following the State’s cross-examination, the trial court asked
defense counsel if he had any "redirect," whereupon counsel
requested leave to "open up [his] direct examination." The State
showed no objection and the court granted counsel’s request.
During the reopened direct examination, the following colloquy
took place:
"[MR. ELLISON (defendant’s attorney):]
[Y]ou got in trouble as a juvenile in your
past, is that correct?
[DEFENDANT:] Yes.
[MR. ELLISON:] And you had--you were put
on eighteen months[’] probation for a robbery
in March of [20]03, is that correct?
[DEFENDANT:] Yes, sir, it is.
[MR. ELLISON:] And then in January of
[20]04, as a juvenile you got three more
years[’] probation for retail theft, is that
correct?
[MR. ELLISON:] And those both happened
in juvenile case [No.] 02-JD-275, is that
- 3 - correct?
[MR. ELLISON:] No other questions."
In February 2005, a jury convicted defendant of
possession of a controlled substance with intent to deliver
(count I) and possession of a controlled substance (count II).
In April 2005, the trial court sentenced defendant to
10 years’ imprisonment on count I and imposed a $220 street-value
fine. Defendant did not appeal his conviction or sentence.
However, in July 2008, defendant filed a pro se
petition for postconviction relief, arguing his trial counsel
provided ineffective assistance of counsel by failing to timely
file an appeal despite defendant’s request.
On April 8, 2009, the trial court granted defendant’s
petition and allowed him to file a late notice of appeal.
On April 14, 2009, defendant filed a notice of appeal.
On April 27, 2009, defendant filed an amended notice of appeal.
On April 28, 2009, defendant filed a pro se motion to
reduce sentence.
On May 5, 2009, the trial court struck both notices of
appeal and set the motion to reconsider sentence for hearing.
Following a July 10, 2009, hearing, the trial court
denied defendant’s motion to reconsider sentence, appointed the
appellate defender to represent defendant, and directed the clerk
- 4 - of the court to file a notice of appeal on defendant’s behalf,
which the clerk did on July 10, 2009.
This appeal followed.
II. ANALYSIS
A. Jurisdiction
While the parties do not address this court’s
jurisdiction, we have an independent duty to ascertain our
jurisdiction before considering the merits of an appeal. See
People v. Haldorson, 395 Ill. App. 3d 980, 981, 918 N.E.2d 1280,
1281 (2009).
In July 2008, defendant filed a petition for
postconviction relief, arguing ineffective assistance of counsel
where his trial counsel failed to file an appeal. Defendant
contended his counsel would have argued (1) defendant’s juvenile
adjudications should not have been admitted because they were
prejudicial and (2) juvenile convictions are not usually
admissible against a criminal defendant.
The docket entry shows arguments were had on
defendant’s petition on April 9, 2009, after which the trial
court took the matter under advisement. However, no transcript
of that hearing appears in the record.
According to an April 9, 2009, docket entry, the trial
court made the following findings:
"1) The case the [c]ourt referred to at
- 5 - the conclusion of oral arguments on the
[a]mended [p]ost[c]onviction [p]etition in
this case is People v. Ross, 229 Ill. 2d
255[, 891 N.E.2d 865 (2008)].
2) Based upon that case, the [c]ourt
concludes that the appropriate remedy
available to the [c]ourt in this case is to
allow [p]etitioner leave to file a late
notice of appeal without analysis of
likelihood of success on appeal."
In Ross, the defendant’s trial counsel did not file an
appeal. Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868. The
defendant filed a pro se petition for postconviction relief two
years later, arguing his trial counsel was ineffective for
failing to file a timely notice of appeal and that the item
involved in his conviction was not a dangerous weapon. Ross, 229
Ill. 2d at 259, 891 N.E.2d at 868. The trial court found defense
counsel was ineffective for failing to file a notice of appeal.
Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868. The court reasoned
the proper remedy was to allow the defendant to file a late
notice of appeal. Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868.
In the defendant’s direct appeal, he argued the State
had failed to prove the pellet gun at issue was a dangerous
weapon. Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868. The State
- 6 - argued the appellate court did not have jurisdiction because the
notice of appeal was untimely under Supreme Court Rule 606 (210
Ill. 2d R. 606). Ross, 229 Ill. 2d at 259, 891 N.E.2d at 868.
The appellate court allowed the appeal, finding the trial court’s
grant of leave to file a notice of appeal was a proper remedy
under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through
122-8 (West 2004)). Ross, 229 Ill. 2d at 259-60, 891 N.E.2d at
869.
The supreme court considered the issue of what relief a
postconviction court may order to remedy defense counsel’s
failure to file a notice of appeal. The court concluded "that
when a postconviction petitioner demonstrates that defense
counsel was ineffective for failing to file a notice of appeal,
the trial court may allow the petitioner leave to file a late
notice of appeal." (Emphasis added.) Ross, 229 Ill. 2d at 271,
891 N.E.2d at 876. The court reasoned section 122-6 of the Post-
Conviction Hearing Act (725 ILCS 5/122-6 (West 2004)) "is
flexible enough to include leave to file a late notice of appeal
among the remedies available to a trial court in a postconviction
proceeding." Ross, 229 Ill. 2d at 271, 891 N.E.2d at 875-76.
In this case, defendant’s trial counsel did not appeal
defendant’s conviction or sentence. Defendant filed a pro se
petition for postconviction relief, arguing his trial counsel
provided ineffective assistance of counsel by failing to timely
- 7 - file an appeal despite defendant’s request. Like the petitioner
in Ross, defendant successfully demonstrated to the trial court
his trial counsel was ineffective for failing to file a notice of
appeal. Like the trial court in Ross, the court here allowed
defendant leave to file a late notice of appeal. Following the
supreme court’s reasoning in Ross, we find we have jurisdiction
to hear defendant’s appeal.
Turning to the merits, defendant argues his trial
counsel was ineffective for eliciting inadmissible impeachment
testimony from him regarding his two prior juvenile
adjudications. Specifically, defendant contends although the
State did not introduce the evidence when it cross-examined him,
his trial counsel "inexplicably introduced the juvenile
adjudications for robbery and retail theft." Defendant maintains
the introduction of this inadmissible evidence prejudiced him.
We initially note defendant’s counsel does not
challenge the correctness of the trial court’s ruling on
defendant’s motion in limine allowing the introduction of the
juvenile adjudications. Instead, defendant argues his trial
counsel was ineffective for introducing the adjudications during
trial because they were inadmissible. The State argues the
court’s ruling allowing the impeachment of the accused with a
juvenile adjudication was correct and therefore counsel was not
ineffective.
- 8 - Defendant argues the State failed to cross-examine him
about his juvenile adjudications and it was inexplicable for
defense counsel to reopen his direct examination for the purpose
of disclosing these adjudications. However, it would have been
improper for the State to cross-examine defendant with respect to
his prior adjudications. If it was proper to introduce such
evidence, the State was limited to introducing certified copies
of the adjudications in its rebuttal case. See M. Graham, Cleary
& Graham's Handbook of Illinois Evidence §609.6, at 456-57 (9th
ed. 2009) (when the witness is the accused, convictions are
provable only by public record on rebuttal and may not be brought
out on cross-examination).
Thus one issue is whether, within the confines of the
trial court’s ruling denying defendant’s motion in limine,
defense counsel’s performance was deficient for introducing the
adjudications before the State could introduce certified copies
of them in rebuttal.
B. Ineffective-Assistance Claim
To establish defendant’s trial counsel provided
ineffective assistance, defendant must show (1) his counsel's
performance was inadequate "in that it fell below an objective
standard of reasonableness" and (2) there is a reasonable
probability the outcome of the trial would have been different
absent his counsel's deficient performance. People v. Moore, 189
- 9 - Ill. 2d 521, 535, 727 N.E.2d 348, 355-56 (2000), citing
Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d
674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984).
The State argues that by introducing evidence of
defendant’s prior adjudications on direct examination, defense
counsel was able to avoid the adverse impact that would have
arisen had the prosecutor introduced certified copies of the
adjudications. We agree with the State.
In this case, once the trial court denied defendant’s
motion, defense counsel essentially did the best he could to
represent defendant within the confines of the trial court’s
ruling. As a matter of trial strategy and given the court’s
ruling on the motion in limine, counsel likely introduced the
adjudications in an attempt to reduce the impact of the State’s
introduction of certified copies of the adjudications, which the
State indicated it intended to do.
With respect to whether counsel was ineffective for
trying to soften the blow by preempting the State with respect to
disclosure of defendant’s adjudications, we find guidance in the
supreme court’s decision in People v. Spates, 77 Ill. 2d 193, 395
N.E.2d 563 (1979). There, the court stated the following:
"[A] party waives the right to raise as error
action taken by the court at the instance of
that party; it is quite another matter when,
- 10 - after an exclusionary motion is denied, the
party himself raises a matter so as to lessen
its impact, when the party knows that if he
does not raise it, the opponent will. *** In
the second instance the aim is consistent:
once the motion to exclude the matter is
denied, the party must try to limit the
effect the matter will have on the trier of
fact. He has not waived the issue by raising
it; he has merely tried to ensure that it
does the least damage to his witness’
credibility." (Emphasis added.) Spates, 77
Ill. 2d at 199-200, 395 N.E.2d at 566.
Given the trial court’s ruling on defendant’s motion in
limine, we cannot say it was unreasonable for defendant’s trial
counsel to introduce defendant’s prior adjudications to reduce
their prejudicial effect on defendant’s credibility prior to the
State’s introduction of certified copies of those adjudications
in rebuttal. See People v. DeHoyos, 64 Ill. 2d 128, 131, 355
N.E.2d 19, 21 (1976) (the defendant need not allow information
damaging to his credibility to be first established by the
State).
C. Motion In Limine
An underlying issue in this case, however, is whether
- 11 - the trial court erred in denying defendant’s motion in limine.
We recognize the supreme court’s recent decision in People v.
Givens, 237 Ill. 2d 311, 325, ___ N.E.2d ___(2010) (finding the
appellate court should not have raised and addressed an issue not
raised and addressed by the parties where the issue was not an
obvious error). However, this case is distinguishable from
Givens in that the parties in this case have briefed but not
appropriately framed the issue. Defendant has framed the issue
in terms of trial counsel’s ineffective assistance but argues
defendant’s adjudications were inadmissible under the rules of
evidence. The State has briefed the issue of the correctness of
the trial court’s ruling on the motion in limine. We note both
parties appear to be treating this appeal as a postconviction
proceeding, rather than as a direct appeal, which it is.
This court has recently considered this issue in People
v. Coleman, 399 Ill. App. 3d 1150, 1156, 927 N.E.2d 304, 308-09
(2010) (Fourth District), and found a defendant’s juvenile
adjudications are not normally admissible when the defendant
testifies. Like the defendant in Coleman, defendant in this case
cites People v. Kerns, 229 Ill. App. 3d 938, 941, 595 N.E.2d 207,
208-09 (1992), and argues Federal Rule of Evidence 609(d) (Fed.
R. Evid. 609(d)), adopted by our supreme court pursuant to People
v. Montgomery, 47 Ill. 2d 510, 517, 268 N.E.2d 695, 699 (1971),
prohibits the admission of juvenile adjudications for impeachment
- 12 - when the witness is the accused. The State argues a testifying
defendant may be impeached with his juvenile record where the
trial court adheres to the same rules governing the use of adult
convictions for impeachment purposes pursuant to section 5-
150(1)(c) of the Juvenile Court Act of 1987 (Act) (705 ILCS
405/5-150(1)(c) (West 2004)).
Federal Rule of Evidence 609(d), as adopted in
Montgomery in 1971, provided the following:
" 'Evidence of juvenile adjudications is
generally not admissible under this rule.
The judge may, however, allow evidence of a
juvenile adjudication of a witness other than
the accused if conviction of the offense
would be admissible to attack the credibility
of an adult and the judge is satisfied that
admission in evidence is necessary for a fair
determination of the issue of guilt or
innocence.' " (Emphasis added.) Montgomery,
47 Ill. 2d at 517, 268 N.E.2d at 699, quoting
51 F.R.D. 391 (1971) (setting forth Rule
609).
In Kerns, 229 Ill. App. 3d at 941, 595 N.E.2d at 208-
09, this court held the admissibility of a juvenile adjudication
is governed by Rule 609(d) as adopted in Montgomery. At the time
- 13 - Kerns was decided, the predecessor to section 5-150(1)(c) of the
Act purported to allow the admission of adjudications of
witnesses and did not specifically include defendants. See
Kerns, 229 Ill. App. 3d at 940, 595 N.E.2d at 208 (there is no
discretion to admit evidence of juvenile adjudications when the
witness is the accused). The version of section 5-150(1)(c) of
the Act then in effect (Ill. Rev. Stat. 1989, ch. 37, par. 801-
10(1)(c)) provided:
"'(1) Evidence and adjudications in
proceedings under this Act shall be
admissible:
* * *
(c) in proceedings under this Act or in
criminal proceedings in which anyone who has
been adjudicated delinquent under [s]ection
5-3 is to be a witness, and then only for
purposes of impeachment and pursuant to the
rules of evidence for criminal trials[.]'"
(Emphases added.) Kerns, 229 Ill. App. 3d at
940, 595 N.E.2d at 208.
The version of section 5-150(1)(c) of the Act in effect
at the time of defendant’s trial provides:
"(1) Evidence and adjudications in
- 14 - admissible:
5-105 is to be a witness including the minor
or defendant if he or she testifies, and then
only for purposes of impeachment and pursuant
to the rules of evidence for criminal
trials[.]" (Emphases added.) 705 ILCS
405/5-150(1)(c) (West 2004).
While the most recent version of the statute purports
to allow impeachment of the accused with juvenile adjudications,
under either version of the Act, a juvenile adjudication may only
be used "pursuant to the rules of evidence for criminal trials."
(Emphasis added.) Ill. Rev. Stat. 1989, ch. 37, par. 801-
10(1)(c); 705 ILCS 405/5-150(1)(c) (West 2004).
Under article II, section 1, of the Illinois
Constitution, the legislative, executive, and judicial branches
of government are separate and "[n]o branch shall exercise powers
properly belonging to another." Ill. Const. 1970, art. II, §1.
"If a power is considered to be judicial in character, the
legislature is prohibited from exercising it." People v.
Williams, 143 Ill. 2d 477, 482, 577 N.E.2d 762, 764 (1991). The
- 15 - supreme court has "sought to reconcile most conflicts between
rules of the judiciary and legislative enactments." Williams,
143 Ill. 2d at 483, 577 N.E.2d at 764. However, a judicial rule
will prevail over a statute that directly and irreconcilably
conflicts with that rule on a matter within the court’s
authority. People v. Walker, 119 Ill. 2d 465, 475, 519 N.E.2d
890, 893 (1988).
In Kerns, this court disavowed People v. McClendon, 146
Ill. App. 3d 1004, 1011, 497 N.E.2d 849, 853 (1986), a prior
Fourth District decision, which had held a previous version of
section 5-150(1)(c) supplanted Rule 609(d). In Kerns, we found
the statute did not override Rule 609(d) as adopted by our
supreme court in Montgomery. Kerns, 229 Ill. App. 3d at 940-41,
595 N.E.2d at 208-09. More recently we have stated "the statute
and the rule, as adopted by our supreme court in Montgomery, can
be reconciled when the statutory language ’pursuant to the rules
of evidence for criminal trials’ is considered." Coleman, 399
Ill. App. 3d at 1155, 927 N.E.2d at 308. Thus, "the legislature
has said a defendant who chooses to testify may be impeached with
a juvenile adjudication but has conditioned the use of such
impeachment on the rules of evidence for criminal trials."
Coleman, 399 Ill. App. 3d at 1155, 927 N.E.2d at 308.
Accordingly, the statute does not override the rules of evidence
for criminal trials. Instead, the statute is limited by the
- 16 - rules of evidence. By interpreting the statute in this manner,
we are able to avoid a separation-of-powers issue.
As stated, Rule 609 was adopted by the supreme court as
a rule of evidence for use by the trial courts. Montgomery, 47
Ill. 2d at 519, 268 N.E.2d at 700. "Rule 609 does not permit
impeachment of a defendant with a juvenile adjudication."
Coleman, 399 Ill. App. 3d at 1156, 927 N.E.2d at 308. As a
result, criminal defendants who choose to testify ordinarily may
not be impeached by their prior juvenile adjudications. Coleman,
399 Ill. App. 3d at 1156, 927 N.E.2d at 308-09; Kerns, 229 Ill.
App. 3d at 941, 595 N.E.2d at 208-09; but see People v. Harris,
231 Ill. 2d 582, 591, 901 N.E.2d 367, 372 (2008) (allowing
impeachment on cross-examination where the defendant's testimony
concerning his prior criminal history was misleading). Our
analysis is supported by the recently adopted Illinois evidence
rules on the use of criminal convictions to impeach witnesses.
Rule 609(d) provides the following:
"(d) Juvenile Adjudications. Evidence
of juvenile adjudications is generally not
admissible under this rule. The court may,
however, allow evidence of a juvenile
adjudication of a witness other than the
accused if conviction of the offense would be
admissible to attack the credibility of an
- 17 - adult and the court is satisfied that
innocence." (Emphasis added.) Ill. R. Evid.
609(d), adopted September 27, 2010, eff.
January 1, 2011.
Thus, the newly adopted rules of evidence include the
long-standing rule announced by the supreme court in Montgomery
and applied by our trial courts for decades. The committee
comments to Rule 609(d) note Rule 609(d) is not intended to
resolve any issue concerning the effect of section 5-150(1)(c) of
the Act. See Ill. R. Evid. 609(d), adopted September 27, 2010,
eff. January 1, 2011, Committee Comments, at 22. In other words,
the courts must determine the impact of any conflict between
section 5-150(1)(c) and Rule 609(d). Further, the initial
committee commentary to the rules states "the Illinois Rules of
Evidence are not intended to abrogate or supercede any current
statutory rules of evidence." Ill. R. Evid., adopted September
27, 2010, eff. January 1, 2011, Committee Commentary, at 1.
However, the committee comments to Rule 101 state the following:
"[A] statutory rule of evidence is effective
unless in conflict with an Illinois Supreme
Court rule or decision. There is no current
statutory rule of evidence that is in
- 18 - conflict with a rule contained in the
Illinois Rules of Evidence, with the possible
exception of [section 5-150(1)(c) of the
Act]." (Emphasis added.) Ill. R. Evid. 101,
adopted September 27, 2010, eff. January 1,
2011, Committee Comments, at 10.
Where a statute conflicts with a rule of evidence or supreme
court decision adopting a rule of evidence, courts are to follow
the rule or decision. See Ill. R. Evid. 101, adopted September
27, 2010, eff. January 1, 2011, Committee Comments, at 10.
In sum, our supreme court adopted Rule 609 in
Montgomery. Rule 609(d) gives the court discretion to admit
evidence of juvenile adjudications to impeach a witness, but
there is no such discretion when the witness is the accused in a
criminal case. Kerns, 229 Ill. App. 3d at 940, 595 N.E.2d at
208; Coleman, 399 Ill. App. 3d at 1154-55, 927 N.E.2d at 308.
We note the Second District Appellate Court’s recent
decision in People v. Villa, No. 2-08-0918, slip op. at 11 (June
30, 2010), ___ Ill. App. 3d ___, ___, 932 N.E.2d 90, 96-97,
appeal allowed, No. 110777 (September 29, 2010), 237 Ill. 2d ___,
___ N.E.2d ___, ___, finds section 5-150(1)(c) of the Act permits
the introduction of a defendant’s juvenile adjudications for
impeachment purposes, despite the contrary language in
Montgomery. The court in Villa opined that our reconciliation of
- 19 - section 5-150(1)(c) and Montgomery in Coleman was in error.
Villa, slip op. at 10, ___ Ill. App. 3d at ___, 932 N.E.2d at 97.
Instead, the Second District interpreted section 5-150(1)(c) to
have supplanted the rule of evidence the supreme court adopted in
Montgomery. Villa, slip op. at 12, ___ Ill. App. 3d at ___, 932
N.E.2d at 97. We disagree with the Second District’s
interpretation and the analysis upon which it is based.
In our opinion, the analysis in Villa is erroneously
predicated upon the power of the legislature to modify the
Montgomery rule. The Second District reasoned "the legislature
acts within its power when its amends a statute to alter a rule
of evidence announced in a judicial decision." Villa, slip op.
at 12, ___ Ill. App. 3d at ___, 932 N.E.2d at 98. While we agree
the legislature is free to adopt rules of evidence, where our
supreme court has adopted a contrary rule, the court’s rule is to
be followed. See People v. Joseph, 113 Ill. 2d 36, 45, 495
N.E.2d 501, 506 (1986) (stating "if a statute conflicts with a
rule of this court adopted pursuant to constitutional authority,
the rule will prevail"); see also Ill. R. Evid. 101, adopted
September 27, 2010, eff. January 1, 2011 ("[a] statutory rule of
evidence is effective unless in conflict with a rule or a
decision of the Illinois Supreme Court").
In Montgomery, our supreme court adopted proposed
Federal Rule of Evidence 609 and took the further step of telling
- 20 - trial courts to follow this rule. Montgomery, 47 Ill. 2d at 519,
268 N.E.2d at 700. The Second District reasoned that a rule has
to be promulgated and adopted formally to have constitutional
effect. Villa, slip op. at 11, ___ Ill. App. 3d at ___, 932
N.E.2d at 98. However, our supreme court is vested with
supervisory authority over the entire court system. Joseph, 113
Ill. 2d at 47, 495 N.E.2d at 507, citing Ill. Const. 1970, art.
VI, §16 ("administrative and supervisory authority over all
courts is vested in the Supreme Court and shall be exercised ***
in accordance with its rules"). Where our supreme court has
specifically directed the trial courts to follow a particular
rule, the legislature is not free to direct the trial courts
otherwise.
The Second District further stated in Villa "the
legislature acts within its power when it amends a statute to
alter a rule of evidence announced in a judicial decision."
Villa, slip op. at 12, ___ Ill. App. 3d at ___, 932 N.E.2d at 98.
We disagree. Supreme Court Rule 3(a)(2), allows the supreme
court to depart from its ordinary rule-making procedures and
adopt a rule by order of the court. Official Reports Advance
Sheet No. 7 (April 7, 2010) R. 3(a)(2), eff. March 22, 2010.
("[t]he [s]upreme [c]ourt reserves the prerogative of departing
from the procedures of this rule. An order of the [s]upreme
[c]ourt adopting any rule or amendment shall constitute an order
- 21 - modifying these [rule-making] procedures"). We note Rule 3(a)(2)
was originally adopted in 1994 as Rule 3(b). See 166 Ill. 2d R.
3(b). The version of section 5-150(1)(c) in effect at the time
of defendant’s trial became effective in 1999. See 705 ILCS
405/5-150(1)(c) (West 2000).
In addition, our decision in Coleman relied upon Kerns,
which adopted the reasoning of People v. Massie, 137 Ill. App. 3d
723, 731, 484 N.E.2d 1213, 1218 (1985) (Second District finding
error in the admission of juvenile adjudications to impeach the
defendant and reasoning "an interpretation of the statute to
allow a prior adjudication of delinquency to be used for
impeachment against a defendant who takes the stand in a criminal
proceeding would be contrary to the decision in Montgomery which
adopted the proposed Federal Rule 609"). However, the court in
Villa does not mention or distinguish our decision in Kerns and
we see no reason to abandon it.
The Second District, while viewing our interpretation
or "reconciliation" as rendering the legislation meaningless,
interprets the phrase "pursuant to the rules of criminal
evidence" as merely incorporating the balancing test of
Montgomery (prejudice versus probative value). Villa, slip op.
at 10, ___ Ill. App. 3d at ___, 932 N.E.2d at 97. However, the
Second District itself in Massie stated as follows:
"[S]ection 2-10 [of the Act (Ill. Rev. Stat.
- 22 - 1983, ch. 37, par. 702-10)] provides that the
use of such a prior adjudication is ’pursuant
trials.’ The Montgomery decision, in
adopting proposed Federal Rule 609 in its
entirety, established the rule of evidence
for use of prior convictions and juvenile
adjudications. Accordingly, pursuant to this
authority, the admission into evidence of the
accused’s prior adjudications of delinquency
in proceedings under the [Act] was error."
(Emphasis added.) Massie, 137 Ill. App. 3d
at 731, 484 N.E.2d at 1218-19.
Thus, in Massie, the Second District had previously interpreted
the language "pursuant to the rules of evidence for criminal
trials" in the very same manner we interpreted this language in
Coleman and in the case before us today.
Lastly, we note the Second District in Villa states the
statute governing impeachment was viewed as subordinate to
Montgomery only in the sense that the adjudication would have to
satisfy the Montgomery factors before it could be used against
the testifying witness. Villa, slip op. at 9, ___ Ill. App. 3d
at ___, 932 N.E.2d at 97. The Second District cites People v.
Newborn, 379 Ill. App. 3d 240, 248, 883 N.E.2d 603, 609 (2008),
- 23 - as authority for this proposition. Villa, slip op. at 9-10, ___
Ill. App. 3d at ___, 932 N.E.2d at 97. Newborn, however, did not
raise, discuss, or consider the limiting language of section 5-
150(1)(c), i.e., "pursuant to the rules of evidence for criminal
trials." Instead, Newborn focused its analysis on the factors
trial courts should consider in determining whether proposed
impeachment evidence of a witness (not the accused) should be
admitted. See Newborn, 379 Ill. App. 3d at 248, 883 N.E.2d at
609. Thus, we are left unpersuaded by the Second District’s
analysis in this regard.
In this case, defendant took the stand and testified.
At no point did defendant offer any misleading testimony
regarding his prior criminal history. Thus, Rule 609, adopted as
a rule of evidence in Montgomery, prohibited his impeachment with
his juvenile adjudications. Additionally, section 5-150(1)(c)
restricts impeachment of a defendant with a juvenile adjudication
by requiring it be done only pursuant to the rules of evidence
for criminal trials. As just stated, the rules of evidence for
criminal trials as expressed in Montgomery prohibited defendant’s
impeachment with juvenile adjudications. Accordingly, the trial
court should have excluded defendant’s adjudications pursuant to
defendant’s motion in limine.
D. Prejudicial Effect of Error
The trial court erred in the denial of defendant’s
- 24 - motion in limine. The court should have allowed the motion so
long as defendant did not offer misleading testimony regarding
his criminal history. However, considering the sufficiency of
the evidence in this case, we find the court’s error harmless.
Defendant testified and admitted he possessed the
cocaine. Thus, the only issue was his intent to deliver the
drugs. Direct evidence of the intent to deliver a controlled
substance is rare and the intent must usually be proved by
circumstantial evidence. People v. Robinson, 167 Ill. 2d 397,
408, 657 N.E.2d 1020, 1026 (1995). However, in this case,
defendant testified the drugs were not for his personal use. In
fact, defendant admitted when he got into the vehicle, the driver
asked him to hold the drugs as a favor for him because the driver
was on parole. Defendant testified he had no intention of
selling the drugs or using them and admitted he was just holding
them for the driver until defendant got home. In other words,
defendant admitted he possessed the drugs with the intent to
deliver them back to the driver.
Based on this evidence, we find the trial court’s error
denying defendant’s motion in limine harmless and did not
contribute to defendant’s conviction as the evidence against him
was overwhelming. See People v. Garvin, 349 Ill. App. 3d 845,
851, 812 N.E.2d 773, 779 (2004) ("[a]n error is harmless where
the reviewing court is satisfied beyond reasonable doubt that the
- 25 - error did not contribute to the defendant’s conviction").
E. Street-Value Fine
Defendant argues the trial court committed plain error
when it imposed a $220 street-value fine based on its belief the
cocaine weighed 2.2 grams. Specifically, defendant contends the
fine was erroneous where the evidence indicated defendant only
possessed 1.3 grams of cocaine having a $130 street value.
The State concedes clear and obvious error occurred when
the trial court based the street-value fine on the mistaken belief
defendant had possessed 2.2 grams of cocaine. However, the State
argues defendant waived this issue on appeal because he did not
object to the fine at the sentencing hearing or in a motion to
reconsider his sentence. We review this issue under the plain-
error doctrine. See People v. Lewis, 234 Ill. 2d 32, 34, 912
N.E.2d 1220, 1222 (2009) ("imposition of [a] street-value fine
without a sufficient evidentiary basis is reviewable as plain
error").
Under the plain-error doctrine, this court reviews
whether (1) the evidence is closely balanced or (2) the error is
"so substantial that it affected the fundamental fairness of the
proceeding, and remedying the error is necessary to preserve the
integrity of the judicial process." People v. Hall, 194 Ill. 2d
305, 335, 743 N.E.2d 521, 539 (2000). Here, defendant does not
argue the evidence was closely balanced. Instead, defendant
- 26 - contends the imposition of the fine affects the integrity of the
judicial process.
Section 5-9-1.1(a) of the Unified Code of Corrections
(Code) provides when a person has been found guilty of a drug-
related offense, a trial court must impose, in addition to other
penalties, a fine not less than the full street value of the
controlled substance seized. 730 ILCS 5/5-9-1.1(a) (West 2004).
Street value is determined by the trial court "on the basis of
testimony of law enforcement personnel and the defendant as to the
amount seized and such testimony as may be required by the court
as to the current street value of the *** controlled substance
seized." 730 ILCS 5/5-9-1.1(a) (West 2004). "Although the amount
of evidence necessary to adequately establish the street value of
a given drug varies from case to case, the trial court must have a
concrete, evidentiary basis for the fine imposed." People v.
Reed, 376 Ill. App. 3d 121, 129, 875 N.E.2d 167, 175 (2007).
In this case, the street-value fine imposed was not
supported by the evidence. The record shows the cocaine defendant
possessed weighed 1.3 grams. During trial, Detective David Daily
testified the street value of the cocaine on November 22, 2004,
the day of the offense, was "[a]pproximately $130." However,
during sentencing, the trial court imposed a $220 street-value
fine and noted, "Yes. As I recall, the evidence indicated 2.2
grams." As a result, the court erroneously assessed defendant $90
- 27 - more than the evidence showed was the value of the drugs seized.
Although trial testimony established the specific value of the
drugs as of the date of the offense, the fine the trial court
fashioned bore no relation to that testimony. See People v.
Galmore, 382 Ill. App. 3d 531, 536, 889 N.E.2d 238, 242-43 (2008)
(holding a $10,000 fine was plain error where testimony indicated
the seized drugs had a street value of $1,000 to $1,500).
Accordingly, we vacate the $220 street-value fine and remand the
cause for the imposition of a fine in the appropriate amount.
III. CONCLUSION
For the reasons stated, we vacate the $220 street-value
fine and remand with directions to impose a $130 street-value
fine. We otherwise affirm the trial court's judgment. Because
the State successfully defended a portion of the criminal
judgment, we grant the State its $50 statutory assessment against
defendant as costs of this appeal. See People v. Smith, 133 Ill.
App. 3d 613, 620, 479 N.E.2d 328, 333 (1985), citing People v.
Nicholls, 71 Ill. 2d 166, 178, 374 N.E.2d 194, 199 (1978).
Affirmed as modified; cause remanded with directions.
McCULLOUGH, J., concurs.
TURNER, J., specially concurs.
- 28 - JUSTICE TURNER, specially concurring:
I agree with the majority the trial court's judgment
should be affirmed as modified and remanded for the imposition of
an appropriate fine. As the majority notes, the evidence against
defendant was overwhelming. See slip op. at 23-24. However,
because of the overwhelming evidence against defendant, I find
unnecessary the majority's discussion on whether defendant's
juvenile adjudications were admissible for impeachment purposes.
Thus, I take no part in any of the majority's analysis on that
issue.
- 29 -