People v. Anthony ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Anthony, 2011 IL App (1st) 091528-BAppellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARTINELL ANTHONY, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-09-1528
Filed November 7, 2011
Held Defendant was properly convicted of two counts of unlawful possession
(Note: This syllabus of a weapon by a felon based on the possession of a firearm and
constitutes no part of ammunition for the firearm, but the $200 assessment for DNA analysis
the opinion of the court was vacated where defendant was previously ordered to submit a DNA
but has been prepared sample and pay the fee, the $5 court system fee was vacated where the fee
by the Reporter of only applied to convictions for a violation of the Illinois Vehicle Code,
Decisions for the the court services fee was upheld even though the offense for which
convenience of the defendant was convicted was not specifically listed in the statute
reader.)
authorizing the fee, the county jail medical fund fee was upheld even
though defendant did not require medical attention during custody, and
defendant was entitled to presentence credit against the mental health
court fee and the Children’s Advocacy Center charge.
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-19320; the
Review Hon. Lawrence Edward Flood, Judge, presiding.
Judgment Affirmed in part and vacated in part; mittimus corrected.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Patrick F. Cassidy, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, and Mary P. Needham, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justice Garcia concurred in the judgment and opinion.
Presiding Justice R. Gordon dissented, with opinion.
OPINION
¶1 Following a bench trial, defendant, Martinell Anthony, was convicted of two counts of
unlawful possession of a weapon by a felon and sentenced to concurrent terms of six years’
imprisonment. On appeal, defendant contends that one of his convictions must be vacated
because it was unauthorized by statute. Defendant also disputes various fines and fees
imposed against him. We issued our original decision on March 31, 2011. The Illinois
Supreme Court subsequently directed us to vacate that decision (People v. Anthony, No.
112324 (Ill. Sept. 28, 2011) (supervisory order)) and to reconsider in light of People v.
Marshall, 242 Ill. 2d 285 (2011), which we now do.
¶2 Defendant was arrested and charged by information with, among other things, two counts
of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1 (West 2008)) and
aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1)(3)(A) (West 2008)). The two
counts of unlawful possession of a weapon by a felon were based upon possession of a
handgun and possession of the firearm ammunition inside that handgun. Specifically, the first
count alleged that defendant “knowingly possessed on or about his person *** a handgun,
after having been previously convicted of the felony offense of burglary.” The second count
alleged that defendant “knowingly possessed on or about his person any firearm ammunition,
after having been previously convicted of the felony offense of burglary.” The charge of
aggravated unlawful use of a weapon alleged that defendant “knowingly carried in any
vehicle *** a handgun, *** and the firearm possessed was uncased, loaded and immediately
accessible at the time of the offense, and [defendant] has been previously convicted of ***
burglary.” The following evidence was presented at defendant’s trial.
¶3 On September 11, 2008, at approximately 8 p.m., Chicago police officer Christopher
Ware was in the parking lot of the 63rd Street Beach in Chicago, IL. The parking lot was lit
by moonlight and artificial lighting in the lot. Officer Ware saw a woman sitting in the
passenger seat of a vehicle and a man, whom he identified as defendant, standing near the
vehicle holding a semi-automatic handgun. Defendant put the gun in his pocket and entered
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the driver’s seat of the vehicle. Officer Ware approached and told defendant to exit the
vehicle. He asked defendant what he had been holding in his hand, and defendant replied that
it was a cell phone. Officer Ware conducted a protective pat-down of defendant but did not
discover a weapon. Defendant said the cell-phone he had been holding was inside the vehicle
and gave the officer permission to search the vehicle. Upon a search of that vehicle, the
officer found a loaded semiautomatic handgun under a jacket behind the front passenger seat
that he believed was the same gun that he had seen defendant holding. A further search of
the vehicle revealed a backpack under the rear seat that contained two handgun magazines
and approximately 96 rounds of ammunition.
¶4 Defendant called his brother-in-law, Derrick Harris, as a witness. Harris owned the
vehicle in which the weapons were found and he explained that, on the night of the incident,
he and defendant had gone to the beach with two women. Harris was approximately 35 feet
away from defendant when the police arrived and he did not see defendant with the weapon
that the police recovered on the night of the incident. Harris testified that he was a Navy
officer and that he was the owner of the .45-caliber semiautomatic handgun and the
ammunition that the police found in his vehicle.
¶5 Following closing arguments, the trial court found defendant guilty of two counts of
unlawful possession of a weapon by a felon based upon possession of the firearm and
possession of the ammunition inside that firearm.1 The court also found defendant guilty of
one count of aggravated unlawful possession of a weapon, but merged that conviction into
the first count of unlawful possession of a weapon by a felon. The court clarified that “the
ammunition found inside the backpack at the rear of the vehicle “isn’t a consideration by this
court as far as these charges are concerned.” The court sentenced defendant to concurrent
terms of six years’ imprisonment. This appeal followed.
¶6 Initially, a question was raised whether aggravated unlawful use of a weapon was a
greater offense than unlawful use of a weapon by a felon. Although each offense is a Class
2 felony, the sentencing provision for unlawful use of a weapon by a felon provides for a
sentence of 3 to 14 years’ imprisonment (see 720 ILCS 5/24-1.1(e) (West 2008)), whereas
the sentencing provision for aggravated unlawful use of a weapon provides for a sentence of
3 to 7 years’ imprisonment (see 720 ILCS 5/24-1.6(d) (West 2008)). But cf. People v.
Johnson, 237 Ill. 2d 81 (2010)). The parties and this court now agree that unlawful use of a
weapon by a felon is the greater offense in this case.
¶7 Defendant first contends that one of his convictions for unlawful possession of a weapon
should be vacated because the legislature did not intend to permit multiple convictions based
upon the possession of a single, loaded firearm. Defendant did not preserve this issue in the
trial court and asks that we review it for plain error. The plain error doctrine allows a
reviewing court to address defects affecting substantial rights (1) if the evidence is closely
balanced or (2) if fundamental fairness so requires rather than finding the claims waived.
People v. Carter, 213 Ill. 2d 295, 299 (2004). Defendant does not claim that the evidence in
1
During trial, the State introduced a certified copy of defendant’s prior conviction for the
forcible felony of burglary.
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this case was closely balanced but, rather, he points out that our supreme court has held that
“the potential for a surplus conviction and sentence affects the integrity of the judicial
process, thus satisfying the second prong of the plain error rule.” People v. Harvey, 211 Ill.
2d 368, 389 (2004); see also Carter, 213 Ill. 2d at 299 (considering the question of whether
multiple convictions could be entered for unlawful possession of weapons by a felon based
on simultaneous possession of two guns and ammunition for those guns under the second
prong of the plain error doctrine). However, “[t]he first step of plain-error review is to
determine whether any error occurred.” People v. Lewis, 234 Ill. 2d 32, 43 (2009).
Accordingly, we first consider whether defendant’s multiple convictions constituted error.
¶8 The question of whether the unlawful possession of a weapon by a felon statute permits
separate offenses to be charged for simultaneous possession of a handgun and the firearm
ammunition inside of that handgun is an issue of first impression.2 The interpretation of a
statute is a question of law that is reviewed de novo. Carter, 213 Ill. 2d at 301. Our primary
objective when construing a statute is to ascertain and give effect to the intent of the
legislature. Carter, 213 Ill. 2d at 301. We begin by examining the language of the statute,
which is “the surest and most reliable indicator of legislative intent.” People v. Pullen, 192
Ill. 2d 36, 42 (2000). Where the language of the statute is clear and unambiguous, it must be
read and given effect without exception, limitation, or other condition. Carter, 213 Ill. 2d at
301.
¶9 In this case, the plain and unambiguous language of the statute allows for multiple
convictions based upon simultaneous possession of a firearm and firearm ammunition.
Section 24-1.1 makes it unlawful for a person who has been convicted of a felony to possess
“any firearm or any firearm ammunition.” 720 ILCS 5/24-1.1(a) (West 2008). More
importantly, the statute provides that “[t]he possession of each firearm or firearm
ammunition in violation of this Section constitutes a single and separate violation.” 720 ILCS
5/24-1.1(e) (West 2008). It is undisputed that in the present case, defendant was found to be
in possession of both a firearm and firearm ammunition. Therefore, we conclude that the
plain language of the statute permits defendant’s multiple convictions for unlawful
possession of a weapon by a felon.
¶ 10 Defendant nevertheless relies upon our supreme court’s decision in Carter to assert that
the statute is ambiguous and that it therefore must be construed to prohibit his conviction for
unlawful possession of a weapon based upon the ammunition inside the firearm.
¶ 11 In Carter, the defendant was found in possession of two loaded semiautomatic weapons,
a .22-caliber handgun and a .25-caliber handgun, and an ammunition clip containing .22-
caliber bullets. The defendant was charged with and convicted of, among other things, four
counts of unlawful possession of weapons by a felon. Those four counts were based upon the
defendant’s possession of a .22-caliber handgun, a .25-caliber handgun, and ammunition for
the .22-caliber handgun. Carter, 213 Ill. 2d at 298. On appeal, the supreme court was asked
2
Although an issue of first impression, at least one case suggests in a footnote that the
amended statute permits convictions for both the firearm and firearm ammunition. See People v. Lee,
379 Ill. App. 3d 533, 538 n.2 (2008).
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to determine “whether multiple convictions can be entered for unlawful possession of
weapons by a felon based on the simultaneous possession of two guns and the ammunition
for those guns.” Carter, 213 Ill. 2d at 299. The defendant argued that nothing in the statute
indicated that each article of contraband possessed constituted a separate offense and that any
ambiguity in the statute should be resolved in his favor. The defendant further argued that
because all four of his convictions for unlawful possession were based on a single,
simultaneous act of possession, three of his convictions had to be vacated under the one-act,
one-crime rule. Carter, 213 Ill. 2d at 300.
¶ 12 The court stated that whether the legislature intended for the simultaneous possession of
weapons and ammunition to be the same offense or separate offenses required it to determine
the statute’s “ ‘allowable unit of prosecution.’ ” Carter, 213 Ill. 2d at 302 (quoting United
States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 220-21 (1952)). The court found that
the statute neither prohibited nor permitted the State to bring separate charges for the
simultaneous possession of firearms and firearm ammunition because the term “any,” as used
in the statute making it unlawful for a felon to possess “any firearm or any firearm
ammunition,” could mean either singular or plural. (Internal quotation marks omitted.)
Carter, 213 Ill. 2d at 301-02. The court thus found that the term “any” in the statute did not
adequately define the allowable unit of prosecution and that the statute was therefore
ambiguous. As such, the rule of lenity required the court to construe the statute in the
defendant’s favor. Carter, 213 Ill. 2d at 302.
¶ 13 The court then noted that it had consistently held that, “where a statute is ambiguous, in
the absence of a statutory provision to the contrary, simultaneous possession could not
support multiple convictions.” Carter, 213 Ill. 2d at 302. The court cited to its prior decision
in People v. Manning, 71 Ill. 2d 132 (1978), in which the defendant was found guilty of two
counts of possession of controlled substances. In Manning, 71 Ill. 2d at 137, the State argued
that the defendant committed two separate offenses in that he knowingly possessed two types
of controlled substances, and the defendant asserted that his simultaneous possession of both
substances arose out of a single act. The court held that “in the absence of a statutory
provision to the contrary, the simultaneous possession of more than one type of controlled
substance, under the circumstances shown on this record, constituted a single offense, and
only one sentence should have been imposed.” Manning, 71 Ill. 2d at 137.
¶ 14 Our supreme court acknowledged in Carter that its decision in Manning had been
superceded by an amendment to the Illinois Controlled Substances Act (the Act) which
expressly authorized multiple convictions where a defendant simultaneously possesses more
than one type of controlled substance. See 720 ILCS 570/402 (West 2004) (“[a] violation of
this Act with respect to each of the controlled substances listed herein constitutes a single
and separate violation of this Act”). The court noted that the amendment to the Act
demonstrated that the legislature “knows how to authorize, specifically, multiple convictions
for simultaneous violations of a single criminal statute.” Carter, 213 Ill. 2d at 303. The court
also indicated its agreement with the State that “a felon who possesses a loaded gun may be
more dangerous than a felon who possesses a gun but no ammunition.” Carter, 213 Ill. 2d
at 306. However, the court noted that it was for the legislature to define that allowable unit
of prosecution and held that “under the facts of this record, in the absence of a specific
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statutory provision to the contrary, the simultaneous possession of two firearms and firearm
ammunition constituted a single offense, and that only one conviction for unlawful
possession of weapons by a felon could be entered.” Carter, 213 Ill. 2d at 303-04.
¶ 15 After Carter, the legislature amended the unlawful possession of a weapon by a felon
statute by adding the language providing that “[t]he possession of each firearm or firearm
ammunition in violation of this Section constitutes a single and separate violation.” 720 ILCS
5/24-1.1(e) (West 2008). Defendant acknowledges that the amendment to the statute
“indicates that two convictions are proper if a defendant possesses two firearms or if he
separately possesses a firearm and firearm ammunition.” He claims, however, that the statute
does not address the circumstances in this case or authorize a second conviction based solely
upon the fact that the firearm found in defendant’s possession was loaded with ammunition.
Defendant asserts that, as in Carter, the statute “neither prohibits nor permits the State to
bring separate charges for the simultaneous possession of firearms and firearm ammunition.”
Therefore, defendant concludes, the statute does not adequately define the allowable unit of
prosecution and must be construed in his favor so as to prohibit his conviction for unlawful
possession of a weapon based upon the ammunition inside of the handgun. We disagree.
¶ 16 As we previously found, the plain language of the statute allows for multiple convictions
based upon possession of both a firearm and firearm ammunition. The statute contains no
exception for situations in which the ammunition is loaded inside of the handgun. Because
the language of the statute is clear and unambiguous, we will not interpret the statute so as
to create such an exception. See Carter, 213 Ill. 2d at 301; People v. Woodard, 175 Ill. 2d
435, 443 (1997) (“Where an enactment is clear and unambiguous, the court is not free to
depart from the plain language and meaning of the statute by reading into it exceptions,
limitations, or conditions that the legislature did not express ***.”). Additionally, defendant
acknowledges that multiple convictions for simultaneous possession of a firearm and
separate firearm ammunition are proper under the amended statute but claims that multiple
convictions for possession of a loaded firearm are improper. Taking defendant’s argument
to its logical conclusion would result in a greater punishment for a felon who possessed an
unloaded firearm and separately possessed firearm ammunition than would result for a felon
who possessed a loaded firearm. A reviewing court may not interpret a statute in a way that
produces absurd results. Pullen, 192 Ill. 2d at 42; People v. Kohl, 364 Ill. App. 3d 495, 501
(2006). Defendant’s interpretation of the statute would produce such a result.
¶ 17 In addition, there is no dispute that the statute was amended in response to the decision
in Carter, and we note that two of the defendant’s convictions in that case were based upon
possession of a loaded handgun. See Carter, 213 Ill. 2d at 298. Moreover, when the
legislature amended the unlawful possession of a weapon by a felon statute, it did so by
adding almost the identical language that was added to the Controlled Substances Act and
that the supreme court in Carter recognized expressly authorized multiple convictions based
upon simultaneous possession of different drugs. See Carter, 213 Ill. 2d at 303. In Carter,
our supreme court also stated that this amendment to the Controlled Substances Act
demonstrated that the legislature knew how to authorize multiple convictions for
simultaneous violations of a single criminal statute. In this case too, through the amendment
to the unlawful possession of a weapon by a felon statute, the legislature has specifically
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authorized multiple convictions for simultaneous violations of the statute. Defendant
committed simultaneous violations of the statute by possessing both a firearm and firearm
ammunition, and we find no error in his multiple convictions based upon that simultaneous
possession. Because we find no error, there can be no plain error. See People v. Nicholas,
218 Ill. 2d 104, 121 (2005).
¶ 18 Defendant also claims that the legislative history shows that the amendment to the statute
was not intended to permit multiple convictions based upon a loaded firearm. However,
where the language of a statute is plain and unambiguous, we must apply the statute without
resort to further aids of statutory construction. People v. Collins, 214 Ill. 2d 206, 214 (2005).
Where statutory language is ambiguous, however, we may consider other extrinsic aids for
construction, such as legislative history and transcripts of legislative debates, to resolve the
ambiguity. Collins, 214 Ill. 2d at 214. In this case, the language of the unlawful possession
of a weapon statute is clear and unambiguous. Accordingly, we will not interpret the statute
by considering extrinsic aids such as legislative history. See Collins, 214 Ill. 2d at 214.
¶ 19 Defendant next contends that several of the fines and fees assessed against him must be
vacated. He also claims that he is entitled to have presentence credit applied toward some of
those fines. “The propriety of a trial court’s imposition of fines and fees raises a question of
statutory interpretation, which we review de novo.” People v. Price, 375 Ill. App. 3d 684,
697 (2007).
¶ 20 The State initially argues that defendant has forfeited these claims because he failed to
raise any issue regarding the fines he was assessed in his motion to reconsider his sentence.
Defendant acknowledges his failure to do so, but he points out that the issue of whether a
sentence is authorized by statute or a defendant is entitled to presentence credit against a fine
is not subject to forfeiture and may be raised for the first time on appeal. See, e.g., People
v. Thompson, 209 Ill. 2d 19, 24 (2004) (a sentence not authorized by statute is void and can
be attacked at any time and in any court); People v. Woodard, 175 Ill. 2d 435, 457 (1997).
Accordingly, we review the fines and fees levied against defendant to determine if they were
authorized by statute.
¶ 21 Defendant first challenges his $200 assessment for DNA analysis pursuant to section
5-4-3 of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West 2008)). Section 5-4-3(a)
provides that “[a]ny person *** convicted or found guilty of any offense classified as a
felony under Illinois law *** shall, regardless of the sentence or disposition imposed, be
required to submit specimens of blood, saliva, or tissue to the Illinois Department of State
Police in accordance with the provisions of this Section.” 730 ILCS 5/5-4-3(a) (West 2008).
Section 5-4-3(j) then provides that “[a]ny person required by subsection (a) to submit
specimens of blood, saliva, or tissue to the Illinois Department of State Police for analysis
and categorization into genetic marker grouping, in addition to any other disposition, penalty,
or fine imposed, shall pay an analysis fee of $200.” 730 ILCS 5/5-4-3(j) (West 2008).
¶ 22 Defendant claims that the $200 DNA fee was improperly assessed against him because
he previously submitted a DNA sample in connection with a prior felony conviction for
burglary or possession of a controlled substance. Defendant asserts that the statute
contemplates the imposition of a single, one-time fee and does not authorize additional
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assessments.
¶ 23 This issue was decided by our supreme court’s recent decision in People v. Marshall, 242
Ill. 2d 285 (2011). In that case, the court held that section 5-4-3 “authorizes a trial court to
order the taking, analysis and indexing of a qualifying offender’s DNA, and the payment of
the analysis fee only where that defendant is not currently registered in the DNA database.”
Marshall, 242 Ill. 2d at 303. Therefore, if defendant in this case was previously ordered to
submit a DNA sample and pay the corresponding fee, the trial court’s order imposing the
$200 DNA fee is void and must be vacated. See Marshall, 242 Ill. 2d at 303.
¶ 24 The State claims that defendant has failed to demonstrate that he has previously been
ordered to submit a DNA sample. The State argues that it is defendant’s burden to make this
showing and that, because of that failure, this issue should be resolved against him. See
Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). However, the record demonstrates that
at defendant’s sentencing hearing, the parties agreed that defendant pled guilty to three felony
narcotics violations on November 11, 2002. The record also shows that defendant pled guilt
to burglary and was sentenced on that conviction in January of 2004. These convictions were
imposed after the statute was amended to require all persons convicted of a felony to submit
a DNA sample and pay a corresponding fee. See Pub. Act 90-130, § 30 (eff. Jan. 1, 1998)
(amending 730 ILCS 5/5-4-3 (West 1996)); Pub. Act 92-829, § 5 (eff. Aug. 22, 2002)
(amending 730 ILCS 5/5-4-3 (West 2002)). Therefore, we can presume that the trial court
imposed this requirement when it sentenced defendant on at least one of these convictions.
See People v. Leach, 2011 IL App (1st) 090339, ¶ 38 (the trial court is presumed to know
and follow the law, unless the record indicates otherwise). Accordingly, we find that the
record sufficiently establishes that defendant was previously ordered to submit a DNA
sample and to pay the corresponding fee.
¶ 25 Defendant next claims, and the State concedes, that the $5 court system fee (55 ILCS 5/5-
1101(a) (West 2008)) was improper because this provision applies only upon conviction “for
violation of the Illinois Vehicle Code” or “similar provisions contained in county or
municipal ordinances.” We agree with the parties and find that the $5 court system fee must
be vacated because defendant’s convictions were not for violations of the Illinois Vehicle
Code or a similar county or municipal ordinance. See People v. Adair, 406 Ill. App. 3d 133,
145 (2010) (vacating the court system fee where the defendant was convicted of possession
of a controlled substance because the fee applies only to convictions for violations of the
Illinois Vehicle Code or a similar municipal ordinance).
¶ 26 Defendant next claims that the $25 court services fee assessment must be vacated
because it applies only to the offenses enumerated in the statute and because he was not
convicted of one of those offenses. See 55 ILCS 5/5-1103 (West 2008). The statute provides,
in relevant part:
“In criminal, local ordinance, county ordinance, traffic and conservation cases, [the court
services fee] shall be assessed against the defendant upon a plea of guilty, stipulation of
facts or findings of guilty, resulting in a judgment of conviction, or order of supervision,
or sentence of probation without entry of judgment pursuant to [certain enumerated
criminal statutes].” 55 ILCS 5/5-1103 (West 2008).
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¶ 27 This court has considered the same argument defendant raises in this case and held that
the “the statute permits assessment of this fee upon any judgment of conviction.” People v.
Williams, 405 Ill. App. 3d 958, 965 (2010); Adair, 406 Ill. App. 3d at 144-45 (finding that
the court services fee was properly assessed even though the offense for which the defendant
was convicted in that case, possession of a controlled substance, was not listed in the statute).
We follow the holdings in these cases and find that the court services fee was properly
assessed in this case, even though the offense for which defendant was convicted is not
specifically listed in the statute.
¶ 28 Defendant also claims that the imposition of the $10 county jail medical fund fee was
unauthorized because he required no medical attention during custody. See 730 ILCS 125/17
(West 2008). At the time of defendant’s offense, in September of 2008, the statute provided:
“An arresting authority shall be responsible for any incurred medical expenses relating
to the arrestee until such time as the arrestee is placed in the custody of the sheriff.
However, the arresting authority shall not be so responsible if the arrest was made
pursuant to a request by the sheriff. When medical expenses are required by any person
held in custody, the county shall be entitled to obtain reimbursement from the County Jail
Medical Costs Fund to the extent moneys are available from the Fund. To the extent that
the person is reasonably able to pay for that care, including reimbursement from any
insurance program or from other medical benefit programs available to the person, he or
she shall reimburse the county.
The county shall be entitled to a $10 fee for each conviction or order of supervision
for a criminal violation, other than a petty offense or business offense. The fee shall be
taxed as costs to be collected from the defendant, if possible, upon conviction or entry
of an order of supervision. The fee shall not be considered a part of the fine for purposes
of any reduction in the fine.
All such fees collected shall be deposited by the county in a fund to be established
and known as the County Jail Medical Costs Fund. Moneys in the Fund shall be used
solely for reimbursement to the county of costs for medical expenses and administration
of the Fund.” 730 ILCS 125/17 (West 2008).
¶ 29 We initially note that the current version of the statute, set forth above, is the result of an
amendment to the statute which occurred approximately one month prior to defendant’s
offense. The prior version of the statute provided, in relevant part:
“All such fees collected shall be deposited by the county in a fund to be established
and known as the Arrestee’s Medical Costs Fund. Moneys in the Fund shall be used
solely for reimbursement of costs for medical expenses relating to the arrestee while he
or she is in the custody of the sheriff and administration of the Fund.” 730 ILCS 125/17
(West 2006).
This court has analyzed this prior version of the statute and held that it applied to defendants
who did not incur medical costs while under arrest. See People v. Jones, 397 Ill. App. 3d
651, 663 (2009). In Jones, 397 Ill. App. 3d at 662, this court reasoned that the prior version
of the statute did not place any conditions on the county’s right to the fee and that the last
sentence of the statute quoted above indicated that the county could use the $10 fee for
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reimbursement of either costs for medical expenses incurred by the defendant while under
arrest or costs for administration of the fund. Recently, in Hubbard, 404 Ill. App. 3d at 105-
06, this court again considered the previous version of the statute and followed its decision
in Jones to conclude that the fee was properly assessed upon the defendant, regardless of
whether he was injured or treated while in custody. Other appellate districts have also
considered the prior version of the statute and reached similar conclusions. See, e.g., People
v. Evangelista, 393 Ill. App. 3d 395, 400 (2009); People v. Unander, 404 Ill. App. 3d 884,
888-90 (2010).
¶ 30 In Public Act 95-842, effective August 15, 2008, the legislature amended section 17 of
the Act. Pub. Act 95-842, § 5 (eff. Aug. 15, 2008) (amending 730 ILCS 125/17 (West
2006)). The amended version replaced “reimbursement of costs for medical expenses relating
to the arrestee while he or she is in the custody of the sheriff” with “reimbursement to the
county of costs for medical expenses.” Pub. Act 95-842, § 5 (eff. Aug. 15, 2008). The
amendment also changed the title of the fund from the “Arrestee’s Medical Costs Fund” to
the “County Jail Medical Costs Fund.” Pub. Act 95-842, § 5 (eff. Aug. 15, 2008).
¶ 31 In this case, defendant’s offense occurred on September 11, 2008, after the effective date
of the amendment. Therefore, the current version of the statute, set forth above, applies in
this case. Prior decisions have considered the statute when it contained the language
“reimbursement of costs for medical expenses relating to the arrestee while he or she is in
the custody of the sheriff” and when the fund was titled “Arrestee’s Medical Costs Fund” and
found that a defendant could be charged the fee even if he did not incur medical costs while
under arrest. By replacing that language with the current version of statute, the amendment
makes it clear that the fee is to be collected irrespective of whether a defendant incurs injury
or requires treatment while in custody and supports the analysis of this court’s prior decisions
on this issue. Accordingly, we follow our holdings in Jones and Hubbard and find that
defendant was properly assessed the $10 county jail medical fund fee.
¶ 32 Defendant further claims, and the State concedes, that he is entitled to presentence credit
toward two of the fines imposed against him by the trial court. The record shows that
defendant was assessed a $10 mental health court fee (55 ILCS 5/5-1101(d-5) (West 2008))
and a $30 Children’s Advocacy Center (CAC) charge (55 ILCS 5/5-1101(f-5) (West 2008)).
These charges are both fines to which defendant is entitled to apply presentence credit. See
People v. Graves, 235 Ill. 2d 244, 252, 255 (2009) (mental health fee); People v. McNeal,
405 Ill. App. 3d 647 (2010) (CAC charge).
¶ 33 Accordingly, pursuant to Supreme Court Rule 615(b)(1) (Ill. S. Ct. R. 615(b)(1)), the $5
court system fee and the $200 DNA assessment are vacated. We order that the mittimus be
corrected to reflect a credit of $40 toward the imposed fines which, along with the vacatur
of the $5 court system fee and the $200 DNA assessment, reduces defendant’s monetary
judgment from $580 to $335.
¶ 34 Affirmed in part and vacated in part; mittimus corrected.
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¶ 35 JUSTICE ROBERT E. GORDON, dissenting:
¶ 36 On appeal, defendant asked this court to vacate one of his two convictions on the ground
that the possession of a single loaded firearm cannot serve as the basis for multiple
convictions.
¶ 37 I must dissent, because I agree that we must vacate one of defendant’s two convictions.
I reach this conclusion based on our legislature’s amendment, enacted in response to our
supreme court’s decision in People v. Carter, 213 Ill. 2d 295 (2004).
¶ 38 This is a case of first impression; neither the court nor the parties found another case
interpreting and applying the 2005 amendment. Pub. Act 94-284, § 10 (eff. July 21, 2005)
(amending 720 ILCS 5/24-1.1(e) (West 2004)).3
¶ 39 The majority finds that the Illinois Supreme Court’s decision in Carter presented an
issue, which was then resolved by a statutory amendment. The majority finds that the
amendment is not ambiguous and thus our job is done. However, the Carter case actually
presented a number of different issues, which were not resolved by the subsequent
amendment. Once one realizes the different issues involved, the ambiguities in the
amendment become apparent.
¶ 40 In Carter, during a search of defendant’s vehicle, the police recovered weapons and
ammunition.4 Carter, 213 Ill. 2d at 298. As a result of this one incident, defendant was
charged with four separate counts of unlawful possession of a weapon by a felon. Carter, 213
Ill. 2d at 298. The four counts were for: (1) an unloaded .22-caliber handgun; (2) a .25-
caliber handgun; (3) the ammunition clip that was attached to the .25-caliber handgun; and
(4) a clip for the .22-caliber handgun, that was found near the .22-caliber handgun, but that
was not attached to it. Carter, 344 Ill. App. 3d at 664-65.
¶ 41 The Carter case thus presented at least three potential issues: (1) whether the
simultaneous possession of two firearms constituted one offense or two; (2) whether the
possession of a loaded handgun constituted one offense or two; and (3) whether a loaded
handgun presented a different issue than an unloaded handgun with a clip nearby.
¶ 42 The Carter court found that, under the version of the statute that applied to the facts
3
The majority states that the Lee case “suggests” that the 2005 amendment permits multiple
convictions for one loaded firearm. Supra ¶ 8 n.2 (citing Lee, 379 Ill. App. 3d at 538 n.2). The Lee
case does not suggest that at all. In Lee, the law that governed was the old statute, prior to the
amendment. Lee, 379 Ill. App. 3d at 538. In Lee, the defendant argued, the State conceded, and the
trial court agreed that the old statute did not permit multiple convictions for one loaded firearm. Lee,
379 Ill. App. 3d at 538. The Lee court did observe that the statute had been subsequently amended,
and the court reiterated the language of the amendment in a footnote, but the Lee court had no reason
to consider the 2005 amendment, and it did not. Lee, 379 Ill. App. 3d at 538-39, 538 n.2.
4
In Carter, there was a drive-by shooting; the shooter’s vehicle crashed as it tried to avoid
the police; the defendant, who was the driver, fled from the crashed vehicle; and police officers
recovered weapons and ammunition from the crashed vehicle. People v. Carter, 344 Ill. App. 3d 663,
664-65 (2003), aff’d in part and rev’d in part by People v. Carter, 213 Ill. 2d 295 (2004).
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before it, the simultaneous possession of the two weapons and their respective ammunition
constituted one offense. Carter, 213 Ill. 2d at 304. Thus, the Carter court resolved all three
potential issues with one holding. However, the Carter court asked our legislature to provide
guidance on the issues raised by “the simultaneous possession of multiple firearms” and “the
simultaneous possession *** [of] a firearm and ammunition.” Carter, 213 Ill. 2d at 304. Our
supreme court observed that almost every federal court of appeals that had considered these
issues had found only one crime. Carter, 213 Ill. 2d at 304. Our supreme court specifically
asked for legislative guidance with respect to a “loaded gun,” stating: “[w]hile we agree with
the State that a felon who possesses a loaded gun may be more dangerous than a felon who
possesses a gun but no ammunition, it is for the legislature to ‘defin[e] what it desires to
make the [allowable] unit of prosecution.’ ” (Internal quotation marks omitted.) Carter, 213
Ill. 2d at 306 (quoting Manning, 71 Ill. 2d at 137, quoting Bell v. United States, 349 U.S. 81,
83 (1955)).
¶ 43 The subsequent amendment states that: “[t]he possession of each firearm or firearm
ammunition in violation of this Section constitutes a single and separate violation.” 720 ILCS
5/24-1.1(e) (West 2008). Thus, “each firearm” leads only to a “single” offense. The
amendment refers simply to “each firearm,” without making any distinction between a loaded
firearm and an unloaded firearm. Thus, to resolve any ambiguity in the defendant’s favor as
we are required to do, we must hold that “each” loaded firearm creates only a “single”
offense. Carter, 213 Ill. 2d at 301 (“Criminal or penal statutes must be strictly construed in
the defendant’s favor ***.”).
¶ 44 In other weapons laws, the legislature has carefully drawn distinctions among: (1) a
“loaded” firearm; (2) an “unloaded” firearm where “the ammunition for the weapon was
immediately accessible”; and (3) an unloaded firearm without immediately accessible
ammunition. 720 ILCS 5/24-1.6 (West 2008). However, the legislature chose not to draw
those distinctions here. Thus, resolving any ambiguity in favor of the defendant, we must
find that “each firearm” means a firearm, whether loaded or not. 720 ILCS 5/24-1.1 (West
2008).
¶ 45 The ambiguity inherent in the statute becomes clear when we consider the phrase “each
*** ammunition.” 720 ILCS 5/24-1.1 (West 2008). “Ammunition” can be either plural or
singular;5 while “each” is singular.6 The legislature’s use of the phrase “each ***
ammunition” raises the question of whether “each” round of ammunition can lead to a
separate offense or whether an entire collection of ammunition, without regard to the number
of clips or rounds present, constitutes only one offense. If we were to accept an interpretation
5
Although the Criminal Code of 1961 defines “ammunition” as any one self-contained
cartridge (720 ILCS 5/2-7.1 (West 2008), incorporating by reference 430 ILCS 65/1.1 (West 2008)),
the word is commonly understood to be a plural noun. A dictionary defines “ammunition” as “[t]he
projectiles, along with their fuses and primers, that can be fired from guns or otherwise propelled.”
The American Heritage Dictionary 103 (2d coll. ed. 1982). The word “projectiles” is plural.
6
“Each” is defined as “[b]eing one of two or more, considered individually; every.” The
American Heritage Dictionary 434 (2d coll. ed. 1982). “Each” thus means “being one.”
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that both the rounds in a firearm and the firearm itself can give rise to separate offenses, I am
not sure how many separate offenses could result from one loaded firearm, considering the
number of rounds in the firearm itself or in any attached clip. Carter, 344 Ill. App. 3d at 675
(McLaren, J., dissenting) (noting “the absurd result” that would be reached if every round of
ammunition gave rise to a separate offense).
¶ 46 The majority suggests that, if we hold that a loaded firearm represents only one offense,
our holding would have the absurd result of encouraging convicted felons to carry their guns
loaded. If a holding that a loaded firearm is a single offense would lead to an absurd result,
then there is absurdity no matter which way we interpret this amendment. As already
discussed above, one firearm with a clip attached could lead to dozens of offenses. If there
is ambiguity in a criminal or penal statute, we are required to interpret it in the defendant’s
favor. Carter, 213 Ill. 2d at 301 (“Criminal or penal statutes must be strictly construed in the
defendant’s favor ***.”).
¶ 47 Since I decide this issue based solely on statutory construction, I do not reach any
possible constitutional questions, such as whether the statute violates the one-act, one-crime
rule. People v. Quinones, 362 Ill. App. 3d 385, 397 (2005) (multiple convictions “based on
the same act, specifically, defendant’s possession of the firearm” “cannot stand under the
one-act, one-crime doctrine”). “One-act, one-crime principles apply only if the statute is
construed as permitting multiple convictions ***.” Carter, 213 Ill. 2d at 301. Our supreme
court has “repeatedly stated that cases should be decided on nonconstitutional grounds
whenever possible, reaching constitutional issues only as a last resort.” In re E.H., 224 Ill.
2d 172, 178 (2006); People v. Melchor, 226 Ill. 2d 24, 34 (2007).
¶ 48 Since the amendment is ambiguous, I find that only one offense is permitted for a single
loaded firearm, and I would vacate one of defendant’s two convictions. Defendant did not
ask this court to remand for resentencing; otherwise I would also have ordered it.
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