City of Chicago v. Powell

Decision Date11 August 2000
Docket NumberNo. 1-99-2046.,1-99-2046.
PartiesThe CITY OF CHICAGO, Plaintiff-Appellant, v. William POWELL et al., Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Mara S. Georges, Corporation Counsel for the City of Chicago, Chicago (Lawrence Rosenthal, Benna Ruth Solomon, Joseph H. Kim, of counsel), for Appellant.

Rita A. Fry, Public Defender of Cook County, Chicago (James N. Perlman, of counsel), for Appellees.

Justice GREIMAN delivered the opinion of the court:

William Powell stood on a Chicago street corner yelling "blows." In this case of first impression, the City of Chicago (City), in its amended complaint against Powell, alleges that he "committed the offense of soliciting unlawful business in that he was observed shouting blows, a common term for heroin, on the public way at the above address for the purpose of soliciting unlawful business." See Chicago Municipal Code § 10-8-515 (added April 1, 1998). Powell filed a motion to dismiss, arguing that: (1) the complaint failed to state a cause of action; (2) the ordinance was vague; and (3) the ordinance was overbroad. Several other defendants who were also charged with violating the ordinance joined in Powell's motion. The trial court granted the motion, finding the ordinance unconstitutionally vague. The City now appeals, arguing that the ordinance (1) is not overbroad as a restriction on freedom of speech; and (2) is not unconstitutionally vague because it sufficiently defines "solicitation" and "unlawful business."

The City prosecuted Powell for violating section 10-8-515 of the Chicago Municipal Code. The ordinance provides as follows:

"Soliciting Unlawful Business.

(a) No person may: (i) stand upon, use or occupy the public way to solicit any unlawful business; or (ii) interfere with or impede any pedestrian or anyone in a vehicle on the public way, for the purpose of soliciting any unlawful business.
(b) As used in this section, `unlawful business' means any exchange of goods or services for money or anything of value, where the nature of the goods or services, or the exchange thereof, is unlawful. Unlawful business includes, but is not limited to, prostitution or the illegal sale of narcotics. For the purposes of this section, `soliciting' may be by words, gestures, symbols or any similar means.
(c) A person who violates this section shall be subject to a fine of not less than $500.00 and/or imprisonment for: (i) not less than 10 days and not more than six months for a first offense; (ii) not less than 20 days and not more than six months for a second offense; and (iii) not less than 30 days and not more than six months for a third or subsequent offense. In addition to the penalties specified above, a person who violates this section shall be ordered to perform up to 200 hours of community service." Chicago Municipal Code § 10-8-515 (added April 1, 1998).

On May 10, 1999, the trial court held a hearing on the motion to dismiss. In striking down the ordinance as unconstitutionally vague, the court did not indicate which term rendered the ordinance vague and found the ordinance unnecessary because individuals charged with violating the ordinance could be charged with other offenses under Illinois law.1

The City filed a timely notice of appeal, which contains a list of 52 defendants and 56 case numbers. The City subsequently filed a motion to dismiss certain defendants, which we consider along with this appeal.

Although defendants agree with the result reached by the trial court, they ask us to affirm by employing a different analysis. Defendants assert that the trial court's dismissal of the charges should be affirmed because the charging documents are fatally defective under Illinois law. A reviewing court should not reach constitutional issues if the case can be determined on other grounds. People v. Nash, 173 Ill.2d 423, 220 Ill.Dec. 154, 672 N.E.2d 1166 (1996). A challenge to the sufficiency of a charging instrument is reviewed de novo. People v. Smith, 259 Ill.App.3d 492, 197 Ill.Dec. 516, 631 N.E.2d 738 (1994)

.

A defendant has the fundamental right under the United States and Illinois Constitutions to be informed of the nature and cause of criminal accusations made against him. The "nature and cause" of a criminal accusation refers to the crime committed rather than the manner in which it was committed. People v. DiLorenzo, 169 Ill.2d 318, 214 Ill.Dec. 846, 662 N.E.2d 412 (1996). If an information or indictment is attacked before trial, it must strictly comply with the pleading requirements of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/100-1 et seq. (West 1998)). DiLorenzo, 169 Ill.2d at 321-22, 214 Ill.Dec. 846, 662 N.E.2d 412. Section 111-3(a) of the Code provides, inter alia, that a charge must set forth the nature and elements of the offense charged. 725 ILCS 5/111-3(a)(3) (West 1998). Technical objections are to be disregarded, and the charging instrument need only state the essential elements of the offense. See People v. Devine, 295 Ill.App.3d 537, 229 Ill.Dec. 796, 692 N.E.2d 785 (1998) (rejecting defendant's argument that information was defective because it was not signed by the State's Attorney or supported by affidavit).

If an information or indictment is challenged for the first time on appeal, however, the standard is more liberal. In this instance, a charging instrument is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to (1) prepare his defense; and (2) allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. DiLorenzo, 169 Ill.2d at 322,214 Ill.Dec. 846,662 N.E.2d 412; People v. Pujoue, 61 Ill.2d 335, 335 N.E.2d 437 (1975). "In other words, the appellate court should consider whether the defect * * * prejudiced the defendant in preparing his defense." People v. Thingvold, 145 Ill.2d 441, 448, 164 Ill.Dec. 877, 584 N.E.2d 89 (1991).

The parties disagree over which standard applies. Defendants essentially argue that we should use the standard applied in People v. Nash, 173 Ill.2d 423, 220 Ill.Dec. 154, 672 N.E.2d 1166 (1996). The defendants in Nash, 173 Ill.2d at 425, 220 Ill.Dec. 154, 672 N.E.2d 1166, were charged with violating the provision of the mob action statute prohibiting the "assembly of 2 or more persons to do an unlawful act." See 720 ILCS 5/25-1(a)(2) (West 1998). At a pretrial hearing, the State indicated that it considered the charges viable and that it would not amend the complaints. The trial court granted defendants' motion to dismiss, finding the statute unconstitutional. The Illinois Supreme Court did not reach the issue of whether the statute was constitutional.2 Noting that the defendants had attacked the sufficiency of the charging instruments before trial, the court applied section 111-3(a)(3) and affirmed on the basis that the complaints failed to properly charge a crime. Nash, 173 Ill.2d at 429, 220 Ill.Dec. 154, 672 N.E.2d 1166.

We agree with defendants that the more stringent standard applies here. The record establishes that Powell challenged the sufficiency of his complaint below. Section 114-1 of the Code provides that a defendant can move to dismiss a charge prior to trial on the ground that it does not state an offense. 725 ILCS 5/114-1(a)(8) (West 1998). Powell's motion to dismiss does not indicate the statutory basis under which it was filed. However, it alleges that the complaint "fails to state any cause for which Mr. Powell could be arrested." At the hearing on the motion, defense counsel argued that Powell's complaint failed to state a cause of action because "[o]ther than standing on a public way and speaking and uttering that word blows, there is no act alleged." The court declined to rule on this issue. Notably, the City concedes that defense counsel generally attacked the sufficiency of Powell's complaint at the hearing. Although defense counsel did not attack the sufficiency of the other complaints, it can be assumed that the other defendants moved to adopt Powell's argument as their own in the motion to join.

However, we reject defendants' argument that the complaints are defective because they allege an apparent attempt to engage in unlawful business. Nash held that apparent attempts cannot be the basis for criminal liability. Nash, 173 Ill.2d at 431,220 Ill.Dec. 154,672 N.E.2d 1166. The complaints in Nash alleged that the defendants "knowingly by the use of intimidation, disturbed the public peace." 173 Ill.2d at 430,220 Ill.Dec. 154,672 N.E.2d 1166. The basis for the accusation was that "while acting with others and without the authority of law, [defendants] blocked the sidewalk in an apparant [sic] attempt to sell drugs and promote gang activity." 173 Ill.2d at 431,220 Ill.Dec. 154,672 N.E.2d 1166. The court found the complaints defective in part because the factual basis of the accusations did not allege that the defendants violated any section of the Code or even attempted to engage in criminal conduct. The complaints merely mentioned "an apparant [sic] attempt to sell drugs and promote gang activity." 173 Ill.2d at 431,220 Ill.Dec. 154,672 N.E.2d 1166. In contrast, the complaints in the instant case do not contain the words "apparent attempt."

Under section 111-3(a)(3), when the statutory language defines or describes the specific conduct constituting the offense, there is no need for the charge to specify the exact means by which the conduct was carried out. People v. Wisslead, 108 Ill.2d 389, 92 Ill.Dec. 226, 484 N.E.2d 1081 (1985). The charging instrument merely needs to state the offense in the language of the statute or so plainly that the defendant is apprised of the charge. People v. Wilkenson, 262 Ill.App.3d 869, 200 Ill.Dec. 124, 635 N.E.2d 463 (1994). The question is not whether the alleged offense could have been described with greater certainty, but whether there...

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