People v. Paige

Opinion

FIFTH DIVISION December 21, 2007

No. 1-06-3523

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) ) BRIANON PAIGE, ) ) Honorable Defendant-Appellant. ) Mary Margaret Brosnahan, ) Judge Presiding.

JUSTICE O’MARA FROSSARD delivered the opinion of the court:

Following a bench trial, defendant Brianon Page was convicted of possession of a

controlled substance and sentenced to 2½ years’ in the Illinois State Penitentiary. The trial court

also ordered defendant to pay $1,125 in fines, fees and costs. On appeal defendant raises the

following issues: (1) his conviction should be reversed because the State failed to establish a

proper chain of custody; (2) imposition of mental health court and youth diversion/peer court fees

violated due process; (3) he is entitled to a $5-per-day credit against his drug assessment for the

49 days he spent in custody; and (4) the trial court improperly imposed a $5 court system fee.

BACKGROUND

Officer Rios and Officer Pellerano testified that on June 11, 2006, around 10:55 p.m. they

observed defendant engage in a verbal altercation with another man in the 800 block of Cicero

Avenue, in Chicago. As they approached, the altercation ended and defendant began to walk 1-06-3523

away. The officers saw defendant throw a plastic baggie to the ground.

Rios said she recovered the baggie. Pellerano originally testified that he recovered the

baggie, but later stated that it was Rios who did so. It contained a white powder substance which

they suspected to be cocaine. Both officers admitted that in their report they described the

recovered item as a white “rock-like substance.” Rios testified she had exclusive custody and

control of the baggie until she arrived at the station and inventoried it under number 1064762.

Rios gave the sealed bag to the desk sergeant and he put it in the vault to be transported to the

Illinois State Police crime lab. Pellerano also testified that he inventoried the recovered item.

Both the State and defense stipulated that forensic chemist Beerman from the Illinois State

Police crime lab and an expert in the field of forensic chemistry would testify that he received

“one item of a chunky substance” in a sealed condition from the Chicago police department under

inventory number 1064762. Total weight of this item was .1 gram, and after conducting tests

accepted in the field of forensic chemistry for ascertaining the presence of a controlled substance,

it was Beerman’s opinion to a reasonable degree of scientific certainty that the item was positive

for cocaine. Both the State and defense further stipulated that Beerman resealed the item and

would identify it in court as the item he tested.

Defendant testified he was on his way home and when Officers Rios and Pellerano

approached him they asked for identification. He said he was the only person on the street and

had not engaged in a verbal altercation, dropped anything or attempted to run from the officers.

After defendant told the officers he did not have identification, Pellerano searched defendant while

Rios searched the ground. Defendant testified that Pellerano lifted up his shirt and said, “Here is

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the rock.” According to defendant, Pellerano did not find this item on his person but, rather,

already had the item in his hand. Defendant was arrested and transported to the police station.

Defendant had a prior conviction for second degree murder and for possession of a controlled

substance with intent to deliver.

Defendant was found guilty of possession of a controlled substance and sentenced to 2½

years’ imprisonment. The court imposed a total of $1,125 in fines, fees, and costs including the

$10 mental health court fee, the $5 youth diversion/peer court fee, the $500 controlled substance

assessment, and the $5 court system fee. Defendant appeals.

ANALYSIS

I. Chain of Custody

Defendant seeks reversal of his conviction contending the record reflects a complete

breakdown in the chain of custody because the State failed to prove that “the substance recovered

at the scene was a controlled substance.” In support of that contention, he argues that “the

description of the item recovered by the officers and the description of the item tested by the

forensic chemist simply did not match and the officers’ testimony regarding the inventory of the

recovered item was conflicting.”

Where a defendant is accused of a narcotics offense, the prosecution must prove a chain of

custody over the substance that is sufficiently complete to make it improbable that the evidence

has been tampered with or accidentally substituted. People v. Woods, 214 Ill. 2d 455, 466-67

(2005). “The State must show that the police took reasonable protective measures to ensure that

the substance recovered from the defendant was the same substance tested by the forensic

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chemist.” Woods, 214 Ill. 2d at 467. The burden then shifts to the defendant to show actual

tampering, alteration or substitution. Woods, 214 Ill. 2d at 468. Unless the defendant “produces

evidence of actual tampering, substitution or contamination, a sufficiently complete chain of

custody does not require that every person in the chain testify, nor must the State exclude every

possibility of tampering or contamination.” Woods, 214 Ill. 2d at 467. “ ‘Once the State has

established the probability that the evidence was not compromised, and unless the defendant

shows actual evidence of tampering or substitution, deficiencies in the chain of custody go to the

weight, not admissibility, of the evidence.’ ” Woods, 214 Ill. 2d at 467, quoting People v. Bynum,

257 Ill. App. 3d 502, 510 (1994). It is not erroneous to admit evidence even where the chain of

custody has a missing link if “there was testimony which sufficiently described the condition of

the evidence when delivered which matched the description of the evidence when examined.”

Woods, 214 Ill. 2d at 468. Such a ruling may be reversed only where it constituted a clear abuse

of discretion. People v. Stechly, 225 Ill. 2d 246, 312 (2007).

Woods held that a challenge to the chain of custody of an alleged controlled substance is

considered an attack on the admissibility of the evidence rather than an attack on its sufficiency to

uphold a conviction and is thus subject to the ordinary rules of waiver. Woods, 214 Ill. 2d at 472-

74. The Woods court reasoned that the chain of custody establishes a foundation for such

evidence as reliable and admissible; it does not function as proof of the existence of an element of

the crime of possession of a controlled substance. Accordingly, a challenge to the chain of

custody does not serve as a challenge to the sufficiency of the evidence to support a conviction

and is not exempt from waiver. Woods, 214 Ill. 2d at 472-74.

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Defendant, in the instant case, argues that there was a complete breakdown in the chain of

custody allowing defendant to challenge the chain of custody for the first time on appeal. We are

mindful that Woods contemplated the situation where there could be a complete breakdown in the

chain of custody, thus enabling a defendant to raise the issue for the first time on appeal despite a

stipulation at trial. Woods, 214 Ill. 2d at 471. However, based on the factual record, the instant

case does not present that rare situation where a complete breakdown in the chain of custody

occurred.

In his brief defendant concedes, “While the inventory number and the amount of the

recovered and tested items in the present case did, in fact, match, the descriptions of these items

did not.” Defendant argues that the prosecution failed to establish that the required protective

measures were taken in this case for the following reasons: (1) the stipulated description of the

items tested by the forensic scientist failed to match the description by the officers of the

substance inventoried; and (2) the stipulated testimony did not mention the color or packaging of

the substance inventoried.

Both Officers Rios and Pellerano testified the suspected cocaine was a white powder-like

substance. Both officers in their police reports described the suspect cocaine as a white rock-like

substance. However, Officer Pellerano further testified that the baggie contained a “white

powder/rock-like object” which resulted from the crack cocaine being rolled into the baggie.

Defendant, in support of his argument, relies on the fact that the stipulation between the parties

described the contents of the bag as “one item of a chunky substance.”

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The various descriptions of the substance at issue in the instant case, including “white

powder-like” substance, “white rock-like substance,” “white powder/rock-like object,” and “one

item of a chunky substance,” are not identical. However, because the stipulated testimony

established that the evidence was received in a sealed condition with a matching inventory

number, a detailed matching description was unnecessary to establish that the integrity of the

evidence had not been compromised. People v. Johnson, 361 Ill. App. 3d 430, 442 (2005). Once

the prosecution established the probability that the evidence was not compromised, and because

the defendant did not show actual evidence of tampering or substitution, the deficiencies in the

chain of custody went to the weight, not to the admissibility, of the evidence. Woods, 214 Ill. 2d

at 467.

For the reasons previously discussed, the record does not reflect a complete breakdown in

the chain of custody. The experienced trial judge is presumed to have followed the law and given

proper consideration to any deficiencies when weighing the evidence as the trier of fact in the

bench trial. People v. Mandic, 325 Ill. App. 3d 544, 546 (2001); People v. Stack, 311 Ill. App.

3d 162, 173-74 (1999). On this record, we cannot find that the trial court abused its discretion

when it admitted the contraband into evidence.

II. Mental Health Court and Youth Diversion Fees

In connection with finding defendant guilty of possession of a controlled substance, the

court also ordered defendant to pay a total of $1,125 in fines, fees and costs. The fees included a

$10 mental health court fee, which is used to finance “the mental health court, the county drug

court, or both” pursuant to section 5-1101(d) of the Counties Code. 55 ILCS 5/5-1101(d-5)

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(West 2006). Also included was the $5 youth diversion/peer court fee, which goes into “an

account specifically for the operation and administration of a teen court, peer court, peer jury,

youth court, or other youth diversion program” pursuant to section 5-1101(e). 55 ILCS 5/5-

1101(e) (West 2006). Defendant asks this court to vacate these fees and reduce the total

assessment by $15 because the fees violate his federal and state due process rights. U.S. Const.,

amend XIV; Ill. Const. 1970, art. I, §2. He contends that “neither fund bears a rational

relationship to the offense of possession of a controlled substance.”

Whether a statute is constitutional is reviewed under a de novo standard. People v. Jones,

223 Ill. 2d 569, 596 (2006). Statutes are presumed constitutional, and we must construe the

statute so as to uphold its constitutionality and validity. Jones, 223 Ill. 2d at 595. If the facts

show that the legislation is reasonable, it must be upheld. People v. Johnson, 225 Ill. 2d 573, 585

(2007). The party challenging the constitutionality of the statute has the burden of clearly

demonstrating a constitutional violation. People v. Malchow, 193 Ill. 2d 413, 418 (2000).

Defendant contends that the “rational basis test is the analytical method used to determine

whether a due process violation has occurred when, as in this case, the statute under consideration

does not affect a fundamental constitutional right.”

Under the rational basis test, a statute is constitutional if it has a reasonable relationship to

the public interest being protected, and the manner of achieving that goal is also reasonable.

People v. Lindner, 127 Ill. 2d 174, 180 (1989). Using this test, a court must (1) identify the

public interest the statute is intended to protect–in other words, the purpose of the statute, (2)

examine whether the statute bears a reasonable relationship to that interest, and (3) determine the

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reasonableness of the method used to protect or further that interest. Lindner, 127 Ill. 2d at 180.

If there is a conceivable basis for finding the statute rationally related to a legitimate state interest,

the statute must be upheld. Jones, 223 Ill. 2d at 595-96.

The statute in issue provides, in relevant part, as follows:

“Additional fees to finance court system. A county board

may enact by ordinance or resolution the following fees:

***

(d-5) A $10 fee to be paid by the defendant on judgment of

guilty or a grant of supervision under Section 5-9-1 of the Unified

Code of Corrections [730 ILCS 5/5-9-1] to be placed in the county

general fund and used to finance the county mental health court, the

county drug court, or both.

(e) In each county in which a teen court, peer court, peer

jury, youth court, or other youth diversion program has been

created, a county may adopt a mandatory fee of up to $5 to be

assessed as provided in this subsection. Assessments collected by

the clerk of the circuit court pursuant to this subsection must be

deposited into an account specifically for the operation and

administration of a teen court, peer court, peer jury, youth court, or

other youth diversion program. The clerk of the circuit court shall

collect the fees established in this subsection and must remit the

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fees to the teen court, peer court, peer jury, youth court, or other

youth diversion program monthly, less 5%, which is to be retained

as fee income to the office of the clerk of the circuit court. The fees

are to be paid as follows:

(2) a fee of up to $5 paid by the defendant on a

judgment of guilty or grant of supervision under Section 5-

9-1 of the Unified Code of Corrections for a felony ; for a

Class A, Class B, or Class C misdemeanor; for a petty

offense; and for a business offense.” 55 ILCS 5/5-1101 (d-

5), (e)(2) (West 2006).

Statutory interpretation requires giving effect to the intent of the legislature. People v.

Ward, 215 Ill. 2d 317, 324 (2005). We begin with the language of the statute, which must be

given its plain and ordinary meaning. People v. Pullen, 192 Ill. 2d 36, 42 (2000). A fine can be

punishment for a conviction, whereas a fee or cost seeks to reimburse the State for expenditures

incurred in the prosecution. Jones, 223 Ill. 2d at 581-82. In the instant case, each charge is

delineated as a “fee” in the statute, and the general statute authorizing the imposition of the

charge is entitled, “Additional fees to finance court system.” 55 ILCS 5/5-1101 (West 2006).

However, as instructed by the Illinois Supreme Court in Jones, while the label of the

legislature is strong evidence as to the nature of the charge, the actual attributes of the charge at

issue must be examined in resolving the question as to whether the charge is in fact a fee or a fine.

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Jones, 223 Ill. 2d at 599. In Jones, the court explained that a “charge is a fee if and only if it is

intended to reimburse the State for some cost incurred in defendant’s prosecution. [Citations.]”

Jones, 223 Ill. 2d at 600. We are mindful of what the Illinois Supreme Court in Jones considered

to be the most important fact in determining whether a charge is a fee or a fine, specifically, “that

this charge does not seek to compensate the State for any costs incurred as the result of

prosecuting the defendant. This is the central characteristic which separates a fee from a fine.”

(Emphasis in original.) Jones, 223 Ill. 2d at 600. The court in Jones concluded that the $5

charge to the spinal cord fund was “clearly a fine, the label notwithstanding,” because the charge

did not seek to compensate the State for any costs incurred as the result of prosecuting the

defendant. Jones, 223 Ill. 2d at 600.

The attributes of the charges imposed in the instant case to be deposited with the mental

health court and the youth diversion/peer court reflect that these charges are properly

characterized as fines, despite their label as “fees.” Similar to the spinal cord fund addressed in

Jones, the charges in the instant case do not seek to compensate the State for any costs incurred

as the result of prosecuting the defendant. Accordingly, the $10 mental health court charge and

the $5 youth diversion/peer court charge may each properly be viewed as a criminal penalty or

pecuniary punishment.

Defendant further contends that “the statute at issue in the instant case violates the

constitutional guarantee of due process because it is an unreasonable and arbitrary method of

furthering the State’s legitimate interest in financing the court system.” In support of that

contention, he relies on the fact that there is no nexus between his conviction for possession of a

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controlled substance and the charges imposed. He argues that neither his “offense, conviction,

nor sentence involved the resources of the types of programs financed by the mental health court

and youth diversion/peer court fees.” Defendant further argues that even if the charges are fines

we must evaluate whether the usage to which the fines are put bears a rational relation to drug

possession-the crime of which he was convicted.

A similar argument was made in Jones in challenging the $5 charge designated for the

Spinal Cord Injury Paralysis Cure Research Trust Fund. The court in Jones rejected this

argument as follows:

“A defendant has no basis for protesting the usage to which his

criminal fines are put. The sole inquiry is whether the amount of

the fine is excessive when compared to the criminal conduct in

which the defendant is found to have engaged. So far as the

propriety of inflicting a pecuniary punishment on a defendant is

concerned, it makes no difference whether the fines are designated

for deposit in the Spinal Cord Injury Paralysis Cure Research Trust

Fund or the general state treasury.” Jones, 223 Ill. 2d at 602.

In Jones, the court took into consideration the question of whether the $5 fine imposed in

that case was disproportionate to the crime and resolved the fine’s constitutionality as follows:

“The $5 charge imposed by section 5-9-1.1(c) of the

Unified Code of Corrections, although labeled a ‘fee,’ is in fact in

the nature of the fine. Thus, its purpose is punitive. Accordingly,

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the fact that the proceeds of that fine are earmarked for a specific

purpose is irrelevant to its constitutionality. So far as the defendant

who is subject to a monetary fine is concerned, due process requires

only that the punishment imposed be rationally related to the

offense on which he is being sentenced. In the context of fines, the

inquiry is whether the amount of the fine is grossly disproportionate

to the offense. In this case, that test is clearly satisfied.” Jones,

223 Ill. 2d at 605.

Relying on the principles articulated in Jones, we noted the rational basis test applies if a

court determines that the charge is a fee because it compensates for some cost of prosecuting the

defendant. Price, 375 Ill. App. 3d at 700. However, we concluded in Price that when the charge

is a fine “it is a punishment, and a court may only vacate it if it is disproportionate to the crime

because ‘[a] defendant has no basis for protesting the usage to which his criminal fines are put.’ ”

Price, 375 Ill. App. 3d at 700, quoting Jones, 223 Ill. 2d at 602.

Mindful of the principles articulated in Jones, and recently applied in Price, we conclude

the charges, in the instant case, although labeled as “fees,” are in fact fines, which are punitive in

nature. The fact that these fines are designated for a specific purpose is irrelevant to their

constitutionality. See Jones, 223 Ill. 2d at 605. Once having determined that the charges at issue

were imposed as punishment for a criminal conviction, we consider only whether it is

disproportionate to the crime to impose the punishment of a $10 mental health court fine and a $5

youth diversion/peer court fine for the offense of drug possession. Jones, 223 Ill. 2d at 605. “So

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far as the defendant who is subject to a monetary fine is concerned, due process requires only that

the punishment imposed be rationally related to the offense on which he is being sentenced. In the

context of fines, the inquiry is whether the amount of the fine is grossly disproportionate to the

offense.” Jones, 223 Ill. 2d at 605.

In the instant case, that test is clearly satisfied and the amounts of the fines are in no way

grossly disproportionate to defendant’s conviction for the offense of drug possession. See People

v. Gildart, No. 1-06-1484 (November 7, 2007) ($5 youth diversion/peer court charge was a fine

and was not excessive for the offense of possession of a controlled substance.) The fines as

punishment are rationally related to the offense in the instant case of drug possession for which

defendant was sentenced. For the reasons previously discussed, we reject defendant’s arguments

that these nominal charges violated his due process rights and affirm the trial court’s imposition of

these charges.

III. Credit Against Mandatory Drug Assessment

The State concedes that defendant is entitled to a $5-per-day credit for each of his 49 days

in custody to offset the mandatory drug assessment. The court imposed a $500 assessment for

controlled substances pursuant to section 411.2 of the Illinois Controlled Substances Act. 720

ILCS 570/411.2 (West 2006). Defendant spent 49 days in custody before sentencing.

Section 110-14 of the Code of Criminal Procedure of 1963 provides as follows:

“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

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incarcerated upon application of the defendant. However, in no

case shall the amount so allowed or credited exceed the amount of

the fine.” 725 ILCS 5/110-14 (West 2006).

The trial court improperly failed to credit defendant $5 per day for the time he spent in

presentence custody. People v. Hare, 119 Ill. 2d 441 (1988). Under the terms of section 110-14,

since defendant was incarcerated for possession of a controlled substance, which is a bailable

offense, defendant was entitled to a $5-per-day credit. 725 ILCS 5/110-14(a) (West 2006). This

credit applies against the $500 controlled substance assessment, as this assessment is a fine.

Jones, 223 Ill. 2d at 592. We amend the costs, fines and fees order to reflect a $5-per-day credit

for a total of $245 to be applied to defendant’s $500 controlled substance assessment.

IV. Court System Fee

The court imposed a $5 court system fee on defendant pursuant to section 5-1101(a). 55

ILCS 5/5-1101(a) (West 2006). Section 5-1101 provides as follows:

“(a) A $5 fee to be paid by the defendant on a judgment of

guilty or a grant of supervision for violation of the Illinois Vehicle

Code [625 ILCS 5/1-100 et seq.] other than Section 11-501 [625

ILCS 5/11-501] or violations of similar provisions contained in

county or municipal ordinances committed in the county, and up to

a $30 fee to be paid by the defendant on a judgment of guilty or a

grant of supervision for violation of Section 11-501 of the Illinois

Vehicle Code [625 ILCS 5/11-501] or a violation of a similar

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provision contained in county or municipal ordinances committed in

the county.” 55 ILCS 5/5-1101(a) (West 2006).

Applying the terms of section 5-1101, we vacate the $5 court system fee because

defendant was found guilty of possession of a controlled substance, which is not a violation of

the Illinois Vehicle Code or of similar provisions contained in county or municipal ordinances.

CONCLUSION

For the reasons previously discussed, any defects in the chain of custody go the weight

not to the admissibility of the evidence. The record reflects the defendant was proven guilty

beyond a reasonable doubt of possession of a controlled substance. The mental health court and

youth diversion/peer court charges are constitutional and were properly imposed in the instant

case. We vacate the $5 court system fee and further amend the costs, fines and fees order to

reflect a $5-per-day credit for the 49 days spent in custody for a total of $250 to be applied to

defendant’s $500 controlled substance assessment. We affirm the judgment of the circuit court

as modified.

Affirmed as modified.

FITZGERALD SMITH, P.J., and TULLY, J., concur.

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