People v. Phillips

759 N.E.2d 946, 326 Ill. App. 3d 157, 259 Ill. Dec. 885, 2001 Ill. App. LEXIS 873

• Court: Appellate Court of Illinois
• Decided: November 19, 2001
• Docket: 3-00-0510, 3-00-0511 cons.
• Status: Published

Opinions

PRESIDING JUSTICE HOMER

delivered the opinion of the court:

The defendant, Joanne Phillips, was convicted by a jury of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 1998)), unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1998)), unlawful possession of cannabis (720 ILCS 550/4(a) (West 1998)), and driving while license suspended (625 ILCS 5/6 — 303 (West 1998)). The court sentenced the defendant to four years’ imprisonment.

On appeal, the defendant argues that (1) the admission into evidence of lab reports violated her constitutional right to be confronted with the witnesses against her, and (2) her mandatory prison sentence violated the principles of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons that follow, we affirm.

BACKGROUND

In the early morning hours of November 5, 1999, a Henry County sheriffs deputy, Glenn Hampton, stopped the defendant’s vehicle on Interstate 80 because the vehicle had veered off the roadway. Hampton asked the defendant for her license, registration, and proof of insurance. The defendant produced a driver’s license and Hampton escorted her to his squad car, while the defendant’s two passengers remained in her vehicle. The defendant indicated that she thought her license was suspended after which Hampton received radio confirmation that the defendant’s license was indeed suspended. Hampton placed the defendant under arrest for driving with a suspended license and returned to the defendant’s vehicle.

After asking the two passengers to step out, Hampton searched the interior of the vehicle. Underneath the driver’s seat near the transmission hump, Hampton discovered wrapped in a paper towel 25 individual plastic bags of a white substance that appeared to be crack cocaine. In the front ashtray, he found a half-burnt marijuana cigarette.

Hampton walked back to his squad car and showed the defendant the substance he recovered from her vehicle. She asked what it was. After Hampton read the defendant her Miranda rights, he returned to her vehicle to speak with the passengers. Hampton then walked back to his squad car and told the defendant that the passengers denied knowledge of the cocaine. He told the defendant that they needed to discuss the matter and then noticed the defendant becoming teary-eyed. The defendant told Hampton that she needed money to pay bills and feed her children. She said that the two passengers in her car did not know anything about the cocaine and that she had picked it up in Chicago. Hampton transported the defendant to the county jail and again read the defendant her Miranda rights. The defendant signed a written statement which was consistent with the oral admissions she made to Hampton.

At trial, the State introduced the defendant’s written statement and an Illinois State Police lab report signed by Denise Hanley, a forensic scientist, which revealed 5.4 grams of off-white chunks containing cocaine and 7.1 grams of untested, off-white chunks. A second report, signed by Robert Streight, an employee of the Henry County Sheriffs office, revealing .1 gram of a plant material containing cannabis was also introduced.

In her defense, the defendant testified that Hampton badgered her into confessing. She indicated that Hampton informed her that if she cooperated the judge would be notified, she would be home with her kids the next day, and Hampton would not notify the Department of Children and Family Services. In addition, the defendant testified that only when Hampton threatened to charge her with drug trafficking and possession of a stolen vehicle and indicated that she would never see her children again did she admit knowledge of the drugs. The defendant admitted signing the written statement, but testified at trial that it was untrue. She maintained that she did not know of any drugs in the car except the marijuana and she had told the passenger smoking the marijuana to stop. At trial, Hampton denied making any promises to the defendant to induce her confession.

The defendant was convicted of all counts. At sentencing, the trial judge indicated that he would have placed the. defendant on probation, but that the legislature had stripped him of his discretion to do so. The defendant was sentenced to four years’ imprisonment for the unlawful possession of a controlled substance with intent to deliver. The court vacated the unlawful possession of a controlled substance count, gave the defendant credit for time served on the cannabis count, and entered judgment on the conviction for driving while license suspended. The defendant appeals from her convictions and sentences.

ANALYSIS

I. Lab Reports

Relying significantly on the recent case of People v. McClanahan, 191 Ill. 2d 127, 729 N.E.2d 470 (2000), the defendant argues that because an element of her alleged drug-related offenses was proven through lab reports, she was denied her sixth amendment right to be confronted by the witnesses against her.

Section 115 — 15(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 — 15 (West 1998)) provides that a state police lab report with a supporting affidavit is considered prima facie evidence of the contents, identity, and weight of the substance being analyzed in prosecutions for violation of either the Cannabis Control Act (720 ILCS 550/1 el seq. (West 1998)) or the Illinois Controlled Substances Act (720 ILCS 570/100 et seq. (West 1998)). Section 115 — 15(c) of the Code further provides that the report will not be prima facie evidence if the accused or her attorney demands the testimony of the person signing the report by serving the demand upon the State’s Attorney within seven days of receipt of the report. 725 ILCS 5/115— 15(c) (West 1998).

Our supreme court held in McClanahan that section 115 — 15 of the Code is unconstitutional because it impermissibly requires a defendant to take a procedural step to secure his constitutional right of confrontation and does not require a knowing, intelligent, and voluntary waiver of this right. McClanahan, 191 Ill. 2d at 140, 729 N.E.2d at 478. The defense attorney in McClanahan objected to the admission of the report at trial but had failed to demand the testimony of the lab analyst within seven days of receipt of the report. McClanahan, 191 Ill. 2d at 129, 131, 729 N.E.2d at 472-73.

Subsequent to the supreme court’s decision in McClanahan, the Fourth District of the Illinois Appellate Court held that, absent the defendant’s objection at trial, the trial court could properly consider hearsay lab reports regardless of the existence or application of section 115 — 15. People v. Avery, 321 Ill. App. 3d 414, 418, 749 N.E.2d 386, 390 (2001). The court reasoned that testimony based on hearsay that is not objected to at trial should be given appropriate consideration. Avery, 321 Ill. App. 3d at 418, 749 N.E.2d at 390.

Not only did the instant defendant fail to object to the admission of the lab reports at trial, it is apparent from the record that she stipulated to them. While the record does not contain the defendant’s express stipulation to the lab reports, the record clearly supports the State’s contention that the defendant did indeed enter into such a stipulation with the State.

In his opening statement, the prosecutor informed the jury that there was “an agreement” between the State and defense counsel as to the testimony of the persons who handled and tested the cocaine and cannabis. The prosecutor further revealed the results of the lab tests and informed the jury that the lab reports would be introduced pursuant to the “stipulation” of the parties. The defendant did not object to these statements of the prosecutor. Later, when the State offered the lab reports into evidence during trial, defense counsel said he had “no objection.” Again during closing arguments, the prosecutor referred without objection to the “stipulations.”

The defendant’s challenge to the admission of the lab reports is raised for the first time on appeal. The waiver issue aside, we conclude that the lab reports were properly admitted into evidence in this case pursuant to the stipulation of the parties, and not pursuant to the provisions of section 115 — 15 of the Code. Therefore, the holding in McClanahan is inapposite to this appeal, and the defendant’s argument that she was denied her right to be confronted with the witnesses against her by the application of section 115 — 15 of the Code is unavailing.

II. Apprendi Issue

As noted, the defendant was convicted of possession of a controlled substance with the intent to deliver (720 ILCS 570/401(c) (2) (West 1998)). The information alleged that the defendant possessed more than 1 gram but less than 15 grams of cocaine. The trial court sentenced the defendant according to section 5 — 5—3(c)(2)(D) of the Unified Code of Corrections, which requires a mandatory minimum prison sentence of four years for possession with intent to deliver more than five grams of cocaine. See 730 ILCS 5/5 — 5—3(c)(2)(D) (West 1998). The defendant argues that this sentencing statute violated her constitutional right to due process, a jury trial, an indictment, and notice because the element of “more than 5 grams” was not pled in the indictment, submitted to a jury, or proven beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The State counters that Apprendi has no application to the instant case because the defendant did not receive a penalty for a crime beyond the statutory maximum. See Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.

While there appear to be no reported Illinois cases that construe the applicability of Apprendi to mandatory minimum sentences imposed under section 5 — 5—3(c)(2)(D), federal courts have addressed analogous federal sentencing provisions. In United States v. Ramirez, 242 E3d 348 (6th Cir. 2001), the Sixth Circuit Court of Appeals was confronted by a factual scenario similar to that facing this court. In Ramirez, the defendant was convicted of conspiracy to distribute cocaine and attempt to possess cocaine with the intent to distribute. The defendant was sentenced to a mandatory minimum of 20 years’ imprisonment after the trial judge concluded that the quantity of drugs involved was more than five kilograms. On appeal, the Ramirez court applied Apprendi, holding that the assessment of facts that increase the mandatory minimum sentence invokes the full range of constitutional protections required for elements of the crime. Ramirez, 242 F.3d at 351. In other words, in order to enforce the mandatory minimum statutory penalty provision, the amount of the drugs involved had to be proven beyond a reasonable doubt.

The Sixth Circuit’s approach was criticized by the Seventh Circuit Court of Appeals in United States v. Hill, 252 F.3d 919 (7th Cir. 2001). The Hill court refused to grant a defendant a new sentencing hearing based on Apprendi where his sentence remained within the range of the sentencing statute. At least four other circuit courts of appeal disagree with the Sixth Circuit’s interpretation of Apprendi. See United States v. Harris, 243 F.3d 806 (4th Cir. 2001); United States v. Robinson, 241 F.3d 115 (1st Cir. 2001); United States v. Keith, 230 F.3d 784 (5th Cir. 2000); United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000). Moreover, the United States Supreme Court held in McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 4211 (1986), that judges may find the existence of facts which trigger mandatory minimum sentences by a preponderance of the evidence. Furthermore, the Illinois Supreme Court recently stated that “Apprendi does not proscribe all judicial fact finding at sentencing, even though it may result in an increase in a defendant’s punishment, provided the statutory maximum sentence for the offense is not exceeded.” People v. Carney, 196 Ill. 2d 518, 526, 752 N.E.2d 1137, 1142 (2001).

Accordingly, we hold that section 5 — 5—3(c)(2)(D) of the Unified Code of Corrections is a sentencing factor, rather than an element of the offense, and may be found to exist by judicial fact finding at sentencing. In the instant case, the trial court properly found that the quantity of the cocaine was in excess of five grams based upon the lab report which was admitted into evidence by stipulation of the parties; thus, the mandatory minimum statutory provision was applicable.

For the reasons stated, we hold that trial court’s imposition of the mandatory minimum four-year prison sentence did not offend Apprendi or violate the defendant’s constitutional rights.

CONCLUSION

For the foregoing reasons, the judgment and sentence of the circuit court of Henry County is affirmed.

Affirmed.

LYTTON, J. concurs.