People v. Brace

2017 IL App (4th) 150388, 79 N.E.3d 765

• Court: Appellate Court of Illinois
• Decided: May 26, 2017
• Docket: 4-15-0388
• Status: Unpublished

Opinion

2017 IL App (4th) 150388 FILED May 26, 2017 NO. 4-15-0388 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of ) Adams County v. ) No. 14CF143 ) CASEY L. BRACE, ) Honorable Defendant-Appellant. ) William O. Mays, ) Judge Presiding.

PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion. Justices Harris and Pope concurred in the judgment and opinion.

OPINION

¶1 In January 2015, defendant, Casey L. Brace, pleaded guilty to the offense of

unlawful possession of methamphetamine precursors without a prescription while having a

previous methamphetamine conviction. In March 2015, the trial court sentenced her to one year

in prison. In April 2015, defendant filed a motion to withdraw her guilty plea, which the court

granted. In a May 2015 stipulated bench trial, the court found defendant guilty and reimposed the

one-year sentence.

¶2 On appeal, defendant argues the State’s evidence at her stipulated bench trial

failed to prove a necessary element of the charged offense. We affirm.

¶3 I. BACKGROUND

¶4 In March 2014, the State charged defendant by information with one count of

unlawful possession of methamphetamine precursors without a prescription under section 120 of the Methamphetamine Control and Community Protection Act (Act) (720 ILCS 646/120 (West

2014)). Therein, the State alleged she knowingly purchased or possessed products containing

pseudoephedrine without a prescription and she had been previously convicted of the offense of

unlawful possession of methamphetamine in June 2006.

¶5 In July 2014, defendant filed a motion to dismiss, claiming she was never made

aware that, given her previous conviction, her purchase or possession of pseudoephedrine was

illegal. Defendant argued the law prohibiting possession of pseudoephedrine without a

prescription by individuals with another conviction under the Act “should be considered to be

ex post facto.” In September 2014, the trial court denied the motion.

¶6 In January 2015, defendant pleaded guilty in return for a sentencing cap of three

years. The State’s factual basis was as follows:

“Your Honor, if this matter had proceeded to trial the

People would present a certified copy of her conviction in 06-CF-

101, which was for the offense of unlawful possession of

methamphetamine.

This conviction was after the effective date of the

Methamphetamine Community Control and Protection Act,

thereby making it illegal for her to purchase pseudoephedrine. The

People would show by a number of means, numerous purchases of

pseudoephedrine; specifically, on January 26th, 2014, her purchase

of pseudoephedrine at Walgreens located at 18th and Broadway in

Quincy, Adams County, Illinois. That would include a video of her

being at the Walgreens store.

-2- There is a copy of the receipt for her purchase of Wal-Phed

D-tabs, which are a pseudoephedrine product. Again, we would

have the NPLEx [(National Precursor Log Exchange)] pill logs to

show that purchase, along with 18 other purchases in Adams

County and one block, since the effective date of the statute. She

also made 110 total purchases, not only in this county, but in other

counties.”

The court accepted the State’s factual basis and defendant’s guilty plea.

¶7 In March 2015, the trial court sentenced defendant to one year in prison, with

credit for one day served. Thereafter, defendant filed a notice of appeal. In April 2015, defendant

filed a motion to strike the notice of appeal and withdraw her guilty plea. Defendant contended

she was incorrectly advised by counsel as to the effect of her plea and wished to withdraw it and

have a bench trial.

¶8 In May 2015, the trial court granted the motion and the case proceeded by

agreement to a stipulated bench trial. Defendant agreed she would accept the statement of facts

presented at her plea hearing. The parties also agreed to accept the statement of facts prepared

for the Department of Corrections, which stated as follows:

“Reporting date February 5, 2014, the reporting officer

received from Msgt. Pat Frazier an NPLEx report showing that

Casey Brace has purchased pseudoephedrine 110 times and been

blocked 18 times since May 19, 2010. There are 18 purchases in

Adams County and one block. The majority of the purchases took

place in Mason and Fulton Counties. Brace has a meth conviction

-3- 2006-CF-101. This conviction was possession of meth less than 5

grams. A purchase of pseudoephedrine after a meth conviction

violates the Methamphetamine Control and Community Protection

Act.

On March 16, 2015 the defendant was sentenced to the

Department of Corrections for a term of 1 year for Unlawful

Possession of Meth. Precursors without a Prescription, a Class 4

Felony.”

The court noted it reviewed the statement of facts and found defendant guilty. The court also

reimposed the one-year sentence. This appeal followed.

¶9 II. ANALYSIS

¶ 10 Defendant argues her conviction for unlawful possession of methamphetamine

precursors without a prescription must be vacated because the State’s evidence at her stipulated

bench trial failed to show she lacked a prescription for pseudoephedrine. We disagree.

¶ 11 “When reviewing a challenge to the sufficiency of the evidence in a criminal case,

the relevant inquiry is whether, when viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” People v. Singleton, 367 Ill. App. 3d 182, 187, 854 N.E.2d 326, 331

(2006). However, when a defendant only “questions whether the uncontested facts were

sufficient to prove the elements of the offense, our review is de novo.” People v. Perkins, 408 Ill.

App. 3d 752, 757-58, 945 N.E.2d 1228, 1234 (2011) (citing In re Ryan B., 212 Ill. 2d 226, 231,

817 N.E.2d 495, 497-98 (2004)). Moreover, questions of statutory interpretation are reviewed

de novo. People v. Campa, 217 Ill. 2d 243, 252, 840 N.E.2d 1157, 1164 (2005).

-4- ¶ 12 In the case sub judice, the trial court found defendant guilty of unlawful

possession of methamphetamine precursors without a prescription. Section 120(a) of the Act

(720 ILCS 646/120(a) (West 2014)) is titled “Prescriptions” and provides as follows:

“Whenever any person pleads guilty to, is found guilty of, or is

placed on supervision for an offense under this Act, in addition to

any other penalty imposed by the court, no such person shall

thereafter knowingly purchase, receive, own, or otherwise possess

any substance or product containing a methamphetamine precursor

as defined in Section 10 of this Act, without the methamphetamine

precursor first being prescribed for the use of that person in the

manner provided for the prescription of Schedule II controlled

substances under Article III of the Illinois Controlled Substances

Act.”

This court has found section 120(a) of the Act requires the State to prove a defendant knowingly

possessed a substance containing a methamphetamine precursor and had a prior conviction under

the Act. People v. Laws, 2016 IL App (4th) 140995, ¶ 25, 66 N.E.3d 848 (citing 720 ILCS

646/120(a) (West 2012)). Pseudoephedrine is a “[m]ethamphetamine precursor” as defined by

the Act. 720 ILCS 646/10 (West 2014).

¶ 13 Here, the State’s factual basis at the guilty plea hearing showed defendant had a

prior conviction for unlawful possession of methamphetamine in case No. 06-CF-101. The State

also indicated defendant made numerous purchases of pseudoephedrine. In the agreed statement

of facts presented at the stipulated bench trial, the evidence indicated defendant had a previous

methamphetamine conviction and had purchased pseudoephedrine 110 times since May 19,

-5- 2010. According to our decision in Laws, the State’s evidence was sufficient to prove defendant

guilty of the charged offense.

¶ 14 Defendant, however, argues the State failed to prove she lacked a prescription for

the pseudoephedrine. Defendant contends the lack of a requisite prescription must be

demonstrated by the State to prove the charged offense. In support of her argument, defendant

relies on this court’s decision in People v. Ellis, 71 Ill. App. 3d 719, 390 N.E.2d 583 (1979). In

that case, the State charged the defendant with driving while his license or permit was suspended

or revoked. Ellis, 71 Ill. App. 3d at 719, 390 N.E.2d at 584. The statute at issue provided

criminal penalties for any person driving a motor vehicle on any highway of this State “at a time

when his drivers license or permit or privilege so to do *** is revoked or suspended ***, except

as may be allowed by a restricted driving permit issued under this Act.” Ill. Rev. Stat. 1977, ch.

95½, ¶ 6-303(a). The defendant argued the State had the burden of proving he did not possess a

valid restricted driving permit. Ellis, 71 Ill. App. 3d at 720, 390 N.E.2d at 584-85. This court

rejected the defendant’s argument and stated as follows:

“The general rule in Illinois is that where an act is made a

crime and there are exceptions embraced in the enacting clause

creating the offense which affect the description of that offense,

the State must allege and prove that the accused does not come

within the exception. In other words, where the exception is

descriptive of the offense it must be negatived in order to charge

the accused with the offense. On the other hand, if the exception

rather than being a part of the description of the offense, merely

withdraws certain acts or persons from the operation of the statute,

-6- it need not be negatived, and its position in the act, whether in the

same section or another part of the act, is of no consequence. Such

exceptions are generally matters of defense. [Citations.] In the

instant case, the exception merely withdraws persons with

restricted driving permits from the operation of the statute and in

no sense is descriptive of the offense.” Ellis, 71 Ill. App. 3d at 720-

21, 390 N.E.2d at 585.

¶ 15 In People v. Rodgers, 322 Ill. App. 3d 199, 200, 748 N.E.2d 849, 850 (2001), the

State also charged the defendant with violating section 6-303(a) of the Illinois Vehicle Code (625

ILCS 5/6-303(a) (West 1998)). The defendant argued the State failed to meet its burden of

proving he violated the statute because it failed to prove he lacked a restricted driving permit

from another state. Rodgers, 322 Ill. App. 3d at 201, 748 N.E.2d at 850. In holding the State had

no burden of proving the lack of an out-of-state restricted driving permit, the Second District

stated as follows:

“[I]f a defendant merely drives on a public highway while his

license is revoked, he commits what is generally a criminal act.

That is, in the typical case, the commission of the crime does not

depend on the inapplicability of the exceptions. Thus, the

exceptions do not bear on the elements of the offense; instead, they

state only that particular defendants (those with, e.g., restricted

driving permits) are protected from liability. Because the

exceptions merely withdraw certain persons from the scope of the

statute, the State has no burden to disprove them.” (Emphasis in

-7- original.) Rodgers, 322 Ill. App. 3d at 203, 748 N.E.2d at 852.

The Second District concluded the State was not required to prove the defendant did not have a

restricted driving permit from another state and affirmed his conviction. Rodgers, 322 Ill. App.

3d at 203, 748 N.E.2d at 852.

¶ 16 In this case, section 120(a) of the Act criminalizes the knowing purchase or

possession of a methamphetamine precursor after having been previously convicted of an offense

under the Act. Persons with a valid prescription for the methamphetamine precursor are

exempted. The prescription exception is not part of the body of the offense. Instead, it merely

withdraws certain persons from the operation of the statute, i.e., those possessing a prescription

for the drug they purchase. Thus, the exception is a matter of defense, and the State has no

burden to disprove it. Accordingly, we find the State was not required to prove defendant did not

have a prescription for the pseudoephedrine in her possession to establish a violation of section

120(a) of the Act.

¶ 17 III. CONCLUSION

¶ 18 For the reasons stated, we affirm the trial court’s judgment. As part of our

judgment, we award the State its $75 statutory assessment against defendant as costs of this

appeal.

¶ 19 Affirmed.

-8-