People v. Morrison ( 2007 )

SECOND DIVISION
August 14, 2007
No. 1-04-3545
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
v. )
)
)
PHILLIP MORRISON, )
) Honorable
Defendant-Appellant. ) Victoria Stewart,
) Judge Presiding.
)
JUSTICE SOUTH delivered the opinion of the court:
This appeal arises from the conviction of defendant, Phillip Morrison, of possession of a
controlled substance following a bench trial. Defendant was sentenced to two years in prison and
ordered to pay $1,274 in various fees and fines.1
The testimony presented at trial was brief. Officer Prieto testified that on the evening of
April 12, 2004, he was on routine patrol in a marked police vehicle in the vicinity of 6844 South
Ada Street. Around 10:40 p.m., he observed defendant engaged in an argument with another man
in the middle of the street. He approached defendant for a field interview and learned his name.
Officer Prieto ran a name check from his police car, discovered an outstanding warrant for
1
Pursuant to a supervisory order entered by the supreme court in People v. Morrison, No.
103367 (March 28, 2007), we vacate our previous opinion in this case (People v. Morrison, 367
Ill. App. 3d 581 (2006)) and reconsider our decision in light of People v. Jones, 223 Ill. 2d 569
(2006).
1-04-3545
defendant's arrest on a conditional discharge violation, and placed him under arrest. He
performed a custodial search at the scene and recovered a plastic pill bottle containing suspected
crack cocaine, which he inventoried. On cross-examination, he denied defendant voluntarily
surrendered the bottle.
The parties entered into a stipulation as to the chain of custody of the pill bottle
inventoried by Officer Prieto and that it contained less than 0.1 grams of cocaine.
Defendant testified that before his arrest he had been on a Chicago Transit Authority bus
where he found a pill capsule bottle. He did not know what was inside the bottle and never
opened it. After exiting the bus, he walked about a half a block before being approached by
Officer Prieto. At that time, he gave the pill bottle to Officer Prieto.
In rebuttal, the State introduced evidence of defendant's three prior convictions for
possession of a controlled substance.
The trial court found defendant guilty of possession of a controlled substance and
sentenced him to two years in prison. The trial court entered a separate order “assessing fines,
fees, and costs” with the following boxes marked:
“ Costs and Fees
Felony Complaint Filed-Clerk - *** $190
Felony Complaint Conviction - State's Attorney *** $60
Preliminary Hearing - State's Attorney *** $20
***
State DNA ID System- Felony Offenses Only *** $200
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Violent Crime Victim Assistance *** $20
***
Criminal/Traffic Conviction Surcharge-Additional Penalty
*** $4
Automation - Clerk - *** $5
Document Storage - Clerk - *** $5
Court Services - Sheriff - *** $15
***
Controlled Substance/Cannabis/Hypodermic Needles Offenses
***
Assessment Controlled Substance *** $500
***
Crime Lab Drug Analysis - State *** $100
***
Trauma Fund *** $100
Trauma Fund Spinal Cord *** $5
***
Fees
Per Day of Trial - State's Attorney *** $50
Total $1274”
Defendant has raised the following issues for our review: (1) whether he was denied
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effective assistance of counsel because his attorney failed to file a motion to quash arrest and
suppress evidence; (2) whether he was denied a fair trial because there was no indication in the
record that he waived his constitutional right to confrontation before his attorney stipulated to the
chain of custody; (3) whether the statute mandating that persons convicted of a drug-related
offense be assessed a $5 fee for deposit into the Spinal Cord Injury Paralysis Cure Research Trust
Fund violated his substantive due process rights; and (4) whether the trial court failed to award
him proper presentence credit for the fines he was ordered to pay, improperly imposed a fine for
the Violent Crimes Victims Assistance Fund, and failed to consider his financial status before
ordering him to pay.
We first consider defendant's claim that he was denied effective assistance of counsel
because his attorney failed to file a motion to quash arrest and suppress evidence. Defendant
argues that even if Officer Prieto's observation of the disturbance was enough to constitute the
reasonable suspicion required for a brief investigatory stop, there was no basis to prolong the
detention by asking him to identify himself and running a name check.
Under the two-part test for judging ineffective assistance of counsel claims, a defendant
must show that: (1) counsel's representation fell below an objective standard of reasonableness
and the shortcomings of counsel were so severe as to deprive defendant of a fair trial; and (2)
there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceedings would have been different. People v. Rodriguez, 312 Ill. App. 3d 920, 925 (2000),
citing Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052,
2068 (1984). When considering an ineffective assistance claim, a reviewing court must look to
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counsel's total performance and not focus solely on isolated acts. People v. Williams, 305 Ill.
App. 3d 517, 529 (1999).
The decision whether to bring a motion to quash arrest or to suppress evidence is
considered to be a matter of trial strategy, and defense counsel enjoys the strong presumption that
the failure to challenge the validity of the defendant's arrest or to move to suppress evidence was
proper. Rodriguez, 312 Ill. App. 3d at 925. “ ‘Only the most egregious of tactical or strategic
blunders may provide a basis for a violation of a defendant's right to effective assistance of
counsel.’ ” People v. Penrod, 316 Ill. App. 3d 713, 724 (2000), quoting People v. Davis, 228 Ill.
App. 3d 123, 127 (1992). In order to prevail on a claim that defense counsel was ineffective for
failing to file a motion to suppress the evidence, defendant bears the burden of showing that there
was a reasonable probability that the motion would have been granted and, with respect to the
suppression of evidence, that the outcome of the trial would have been different had the evidence
been suppressed. People v. Kelley, 304 Ill. App. 3d 628, 636 (1999). The failure to satisfy either
the deficient performance prong or the prejudice prong of Strickland precludes a finding of
ineffective assistance of trial counsel. People v. Patterson, 217 Ill. 2d 407, 438 (2005).
The fourth amendment guarantees the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV.
“The central inquiry under the fourth amendment is ‘ “the reasonableness in all the circumstances
of the particular government invasion of a citizen’s personal security.” ’ ” People v. Conner, 358
Ill. App. 3d 945, 949 (2005), quoting Michigan v. Summers, 452 U.S. 692, 700 n.11, 69 L. Ed.
2d 340, 348 n.11, 101 S. Ct. 2587, 2593 n. 11 (1981), quoting Terry v. Ohio, 392 U.S. 1, 19, 20
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L. Ed. 2d 889, 904, 88 S. Ct. 1868, 1878-79 (1968).
The United States Supreme Court provided for a limited exception in Terry, 392 U.S. 1,
20 L. Ed. 2d 889, 88 S. Ct. 1868, where it held that a police officer, under appropriate
circumstances, could detain a person for investigatory purposes. People v. Flowers, 179 Ill. 2d
257, 262 (1997). Under a Terry stop, a police officer may stop a person briefly for temporary
questioning if the officer reasonably believes that the person has committed, or is about to
commit, a crime. Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906-07, 88 S. Ct. at 1880. “To ensure
that the resulting seizure is constitutionally reasonable, a Terry stop must be limited. The officer's
actions must be ‘ “justified at its inception, and ... reasonably related in scope to the circumstances
which justified the interference in the first place.” ’ [Citations.]” Hiibel v. Sixth Judicial District
Court, 542 U.S. 177, 185, 159 L. Ed. 2d 292, 302, 124 S. Ct. 2451, 2458 (2004).
The Illinois Supreme Court “has recognized that police-citizen encounters can be divided
into three tiers: (1) the arrest of a citizen, which must be supported by probable cause; (2) a
‘Terry stop,’ which must be supported by a reasonable, articulable suspicion of criminal activity
[citation]; and (3) a ‘community caretaking function,’ which need not be supported by probable
cause or reasonable suspicion.” People v. White, 221 Ill. 2d 1, 21 (2006).
We disagree with defendant’s apparent belief that Officer Prieto was exercising a
community caretaking function when he approached him, learned his name, and ran the name
check. Officer Prieto testified that while on routine patrol he observed a disturbance around
10:40 p.m. in the middle of a city street involving defendant and another man. See 720 ILCS
5/26-1(a)(1) (West 2004) (“a person commits disorderly conduct when he knowingly *** [d]oes
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any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the
peace ”). We find the circumstances of this case were sufficient to warrant a Terry stop. See
People v. DeHoyos, 172 Ill. App. 3d 1087, 1092 (1988) (where a police officer who was called to
investigate a street disturbance while on routine patrol, who was not given any description of the
individuals involved in the disturbance, and who later observed the defendant exit an alley, and
then turn back into the alley, was justified in conducting a brief investigatory stop to determine the
defendant's identification and why he was in the alley).
It is unclear exactly how Officer Prieto obtained defendant's name because he testified that
he learned it after approaching defendant for a field interview. We will assume for purposes of
our analysis that he asked defendant for this information and that defendant did not volunteer it.
However, “it is well established that an officer may ask a [person] to identify himself in the course
of a Terry stop.” Hiibel, 542 U.S. at 186, 159 L. Ed. 2d at 303, 124 S. Ct. at 2458. The United
States Supreme Court has made “clear that questions concerning a suspect’s identity are a routine
and accepted part of many Terry stops.” Hiibel, 542 U.S. at 186, 159 L. Ed. 2d at 302, 124 S.
Ct. at 2458, citing United States v. Hensley, 469 U.S. 221, 229, 83 L. Ed. 2d 604, 612, 105 S. Ct.
675, 680 (1985) (“the ability to briefly stop [a suspect], ask questions, or check identification in
the absence of probable cause promotes the strong government interest in solving crimes and
bringing offenders to justice”); Hayes v. Florida, 470 U.S. 811, 816, 84 L. Ed. 2d 705, 711, 105
S. Ct. 1643, 1647 (1985) (“if there are articulable facts supporting a reasonable suspicion that a
person has committed a criminal offense, that person may be stopped in order to identify him, to
question him briefly, or to detain him briefly while attempting to obtain additional information”);
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Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 617, 92 S. Ct. 1921, 1923 (1972) (“a
brief stop of a suspicious individual, in order to determine his identity or to maintain the status
quo momentarily while obtaining more information, may be most reasonable in light of the facts
known to the officers at the time”). Consequently, we find it was proper for Officer Prieto to ask
defendant for his name.
Having determined that the initial Terry stop was justified and that Officer Prietro's inquiry
as to defendant's name was proper, we next consider the reasonableness of the duration of the
stop. A seizure that is lawful at its inception can violate the fourth amendment if it is prolonged
beyond the time reasonably required to complete the mission. Illinois v. Caballes, 543 U.S. 405,
407, 160 L. Ed. 2d 842, 846, 125 S. Ct. 834, 837 (2005). The officer's questioning of defendant
and the subsequent name-search were not impermissibly prolonged and we infer from the record it
lasted only a few minutes. Consequently, we conclude there was no fourth amendment violation
for an unlawful seizure in this case, and once Officer Prieto discovered the outstanding warrant
for defendant's arrest, he was justified in arresting him and conducting the custodial search.
Defendant’s reliance upon People v. Gherna, 203 Ill. 2d 165 (2003), and People v.
Brownlee, 186 Ill. 2d 501 (1999), is misplaced. In contrast to the instant case, the police officers
in both those cases violated the defendants’ fourth amendment rights because the extended
detentions were unreasonable and exceeded the officers’ Terry authority. Gherna, 203 Ill. 2d at
186-87; Brownlee, 186 Ill. 2d at 521. We are also unpersuaded by defendant’s reliance on People
v. Torres, 347 Ill. App. 3d 252 (2004). As we explained in Connor, the Torres court relied
exclusively on People v. Harris, 207 Ill. 2d 515 (2003), in concluding that the warrant check of a
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passenger during a lawful traffic stop was unreasonable. Connor, 358 Ill. App. 3d at 961. Due to
the fact that the United States Supreme Court vacated and remanded the Harris decision in light
of Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005), the Torres
holding is questionable and, like the Connor court, we decline to follow it. Connor, 358 Ill. App.
3d at 961.
We conclude defendant was not prejudiced by his attorney's failure to file a motion to
quash arrest and suppress evidence because it would not have had a reasonable likelihood of
success. Also, we reject defendant’s claim that the cumulative effect of his attorney's deficient
performance denied him effective assistance of counsel. Even assuming the alleged errors of
failing to make an opening statement and not filing any posttrial motions constituted deficient
performance, taken cumulatively, they do not amount to prejudice in light of the significant
evidence of defendant's guilt. People v. Ward, 187 Ill. 2d 249, 263 (1999). Consequently,
defendant has not met his burden of showing that he received ineffective assistance of counsel.
Next, there is no need for us to address defendant’s claim that he was denied a fair trial
because the record fails to show that he affirmatively waived his constitutional right to
confrontation before defense counsel stipulated to the chain of custody. In his reply brief,
defendant withdrew this issue for our review in light of People v. Phillips, 217 Ill. 2d 270 (2005).
Next, defendant contends that his due process rights were violated by the trial court's
imposition of a $5 fee for deposit into the Spinal Cord Injury Paralysis Cure Research Trust Fund
(Spinal Cord Fund) (730 ILCS 5/5-9-1.1(c) (West 2004)). Defendant contends that collecting a
$5 fee from drug offenders violates his substantive due process rights because there is no rational
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relationship between the possession of a controlled substance and the public interest that led the
legislature to create the Spinal Cord Fund.
In People v. Jones, 223 Ill 2d 569, 606 (2006), our supreme court rejected this identical
argument and upheld the constitutionality of this statutory provision. Therefore, in accordance
with Jones, we affirm the trial court’s order requiring him to pay the $5 fee to the Spinal Cord
Fund.
Next, we consider defendant's contention that we should reduce the total amount he was
assessed because the trial court failed to award him presentence credit toward the $500 drug
assessment and the $4 conviction surcharge. Defendant also claims the trial court improperly
imposed a $20 fine for the Violent Crime Victims Assistance Fund. If we conclude the trial court
properly imposed either the $4 conviction surcharge or the $20 fine, defendant requests that we
remand for the trial court to conduct a hearing to determine his ability to pay.
As a threshold matter, we note that the normal rules of forfeiture do not apply to a
sentence credit request and may be raised by a defendant for the first time on appeal. People v.
Fort, 362 Ill. App. 3d 1, 4 (2005), citing People v. Woodard, 175 Ill. 2d 435, 457 (1997).
Section 110-14 of the Code of Criminal Procedure of 1963 (Code) provides, in relevant
part:
“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
incarcerated upon application of the defendant. However, in no
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case shall the amount so allowed or credited exceed the amount of
the fine.” 725 ILCS 5/110-14 (West 2004).
In this case, the charged offense of possession of a controlled substance was bailable (725
ILCS 5/110-4(a) (West 2004)), and the record establishes that defendant served 186 days in jail
prior to his sentencing. Consequently, he was entitled under section 110-14 of the Code to a
credit of $930, which was not to exceed the amount of the fine.
In Fort, cited with approval for the issue before us by the supreme court in Jones, 223 Ill.
2d at 588-592, the defendant was also ordered to pay the $500 drug assessment, pursuant to
section 411.2(a)(4) of the Illinois Controlled Substances Act (720 ILCS 570/411.2(a)(4) (West
2002)), and argued on appeal that he was entitled to a credit against this amount for the days he
spent in presentence incarceration. Fort, 362 Ill. App. 3d at 3. We looked to the legislative intent
in order to determine whether the $500 assessment was a fine, i.e., a pecuniary punishment
imposed as part of a sentence, or if it was a charge taxed by a court, compensatory in nature, such
as a fee or court cost. Fort, 362 Ill. App. 3d at 5. We ultimately concluded, relying upon a
consistent line of appellate court decisions, that the $500 assessment was in the nature of a fine
and, therefore, would be offset by the credit earned by the defendant for the days he spent in jail
prior to his sentencing. Fort, 362 Ill. App. 3d at 8; see also Jones, 223 Ill. 2d at 592.
In accordance with Fort and Jones, we conclude that the $500 drug assessment was a fine
and that defendant is entitled to a full credit based upon the length of his presentence
incarceration.
We now turn to defendant’s claim that he was entitled, under section 110-14 of the Code,
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to a credit of $4 against the fine imposed for the Traffic and Criminal Conviction Surcharge Fund
(730 ILCS 5/5-9-1(c-9) (West 2004)).2
Our supreme court concluded in Jones, 223 Ill. 2d at 587, that the presentence credit
under section 110-14 operates to offset the $4 criminal/traffic conviction surcharge imposed by
section 5-5-1(c-9) of the Unified Code of Corrections (730 ILCS 5/5-9-1(c-9) (West 2004)).
Therefore, the $4 surcharge imposed upon defendant is offset here by his presentence credit.
Our supreme court in Jones held that the presentence credit under section 110-14 operates
to offset the $4 criminal/traffic conviction surcharge imposed by section 5-9-1(c-9) of the Unified
Code of Corrections (730 ILCS 5/5-9-1(c-9) (West 2004)). Jones, 223 Ill. 2d at 587. Therefore,
we find that defendant’s $4 surcharge is offset here by his presentence credit.
Finally, we consider defendant's challenge to the imposition of the $20 fine for the Violent
Crime Victims Assistance Fund (725 ILCS 240/10(c) (West 2004)). Defendant contends the fine
was improper in this case because it can only be assessed if no other fines are imposed.
Section 10(c) of the Violent Crime Victims Assistance Act provides, in relevant part:
"(c) When any person is convicted *** of an offense listed
below *** and no other fine is imposed, the following penalty shall
be collected by the Circuit Court Clerk:
2
The $4 additional penalty was added to the statute effective June 20, 2003 (Pub. Act 93-
32, eff. June 20, 2003 (adding 730 ILCS 5/5-9-1(c-9)), and was in effect at the time of
defendant's crime and conviction. This penalty was subsequently eliminated by the legislature.
Pub. Act 94-652, eff. August 22, 2005 (amending 730 ILCS 5/5-9-1(c-9)).
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***
(2) $20, for any other felony or misdemeanor *** ." 725
ILCS 240/10(c)(2) (West 2004).
As we have previously discussed, the $500 drug assessment imposed in this case was
pecuniary in nature and constituted a fine. Therefore, defendant should not have been assessed a
$20 fee for the Violent Crime Victims Assistance Fund. People v. Duff, No.1-05-2110, slip op. at
14-15 (2007) (where we vacated the $20 Violent Crime Victims Assistance Fund find because
other fines, including the drug assessment fine, had been imposed upon the defendant).
Accordingly, we strike the $20 fee from the trial court's order.
For the foregoing reasons, we amend the trial court's order assessing fines, fees, and costs
to reflect a credit of $504, and strike from the order the $20 fee for the Violent Crime Victims
Assistance Fund. We otherwise affirm defendant's conviction and sentence.
Affirmed as modified.
WOLFSON, P.J., and GARCIA, J., concur.
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