People v. Davison

• Decision Date: 15 February 2008
• Docket Number: No. 4-07-0033.,No. 4-07-0032.,No. 4-07-0034.,4-07-0032.,4-07-0033.,4-07-0034.
• Citation: 378 Ill.App.3d 1010,883 N.E.2d 648
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Troy A. DAVISON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

883 N.E.2d 648

378 Ill.App.3d 1010

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Troy A. DAVISON, Defendant-Appellant.

No. 4-07-0032.

No. 4-07-0033.

No. 4-07-0034.

Appellate Court of Illinois, Fourth District.

February 15, 2008.

Justice KNECHTdelivered the opinion of the court:

Defendant, Troy A. Davison, in these consolidated appeals, first appeals from his conviction for possession of a deadly substance (720 ILCS 5/20.5-6(West 2002)), arguing (1) the evidence was not sufficient to prove guilt beyond a reasonable doubt because anhydrous ammonia is not a "poisonous gas" within the meaning of the statute defining the offense, (2) the sentences he received for possession of a deadly substance, unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1)(West 2004)) and unlawful manufacture of a controlled substance (720 ILCS 570/401(c)(6.5)(West 2002)) were excessive; and (3)the trial court's order directing the balance of his posted bond money, after restitution, court fees, and public-defender reimbursement in each case be split equally between the Clark County Sheriff's office and the Southeast Illinois Drug Task Force.For the following reasons, we reverse defendant's conviction for possession of a deadly substance; reverse defendant's conviction and sentence for unlawful possession of a stolen vehicle and remand with directions; and affirm defendant's conviction of unlawful manufacture of a controlled substance but reverse his sentence therein and remand with directions.

I.BACKGROUND

In Clark Countycase No. 03-CF-165, our case No. 4-07-0034, the State brought numerous charges against defendant stemming from an incident on December 5, 2003.On December 8, 2003, the State filed the charges.On December 9, 2003, defendant posted bond of $3,500; that same day, he assigned his bond to Kelly Houser.

In Clark Countycase No. 03-CF-171, our case No. 4-07-0032, while defendant was out on bond from case No. 03-CF-165, the State charged defendant with unlawful transportation of anhydrous ammonia, possession of a deadly substance, unlawful possession of a stolen vehicle, and unlawful possession of a vehicle with a removed vehicle identification number based on a December 23, 2003, incident.On January 9, 2004, defendant posted bond of $7,500; in January 2004, he executed a bond assignment to Julie Nasser.

Then on June 21, 2004, in Clark Countycase No. 04-CF84, our case No. 4-07-0033, the State charged defendant with unlawful possession of a stolen vehicle based on conduct of June 19, 2004.On June 29, 2004, defendant posted $10,000 bond; that same day, he assigned his bond to Dawn Kemper.

On August 10, 2004, in case No. 03-CF-171, the trial court granted defendant's motion to sever counts, and the State proceeded to a jury trial on the sole charge of possession of a deadly substance.On August 11, 2004, the jury convicted defendant of that offense.Defendant left the courthouse after the jury retired to deliberate and never returned that day.

The trial court scheduled a pretrial hearing for August 16, 2004, for both case Nos. 03-CF-165and04-CF-84.When defendant failed to appear, the court ordered his bond forfeited and issued a warrant for his arrest.The court sent notice to defendant of a bond forfeiture hearing to be held on September 20, 2004.Defendant failed to appear and the court continued the hearing for two days.The State filed an objection to the bond forfeiture, expressing concern about restitution for victims and the fact law-enforcement agencies had expended considerable time investigating defendant's criminal activities.On September 22, 2004, the court entered a forfeiture judgment but ordered the clerk not to distribute the funds until further order.

On September 29, 2004, in case No. 03-CF-171, defense counsel filed a posttrial motion on defendant's behalf, which the court denied.The court scheduled sentencing for December 20, 2004.

Authorities eventually apprehended defendant.On November 9, 2004, defendant pleaded guilty to unlawful possession of a stolen vehicle in case No. 04-CF-84.On December 13, 2004, in case No. 03-CF-165, defendant pleaded guilty to unlawful manufacture of a controlled substance in that he manufactured more than 5 grams, but less than 15 grams, of a substance containing methamphetamine in violation of section 401(c)(6.5) of the Illinois Controlled Substances Act(720 ILCS 570/401(c)(6.5)(West 2002)).

On December 20, 2004, the trial court held a combined sentencing hearing for all three cases.The court sentenced defendant to concurrent prison terms of 26 years for possession of a deadly substance in case No. 03-CF-171, 7 years for unlawful possession of a stolen motor vehicle in case No. 04-CF-84, and 15 years for unlawful manufacture of a controlled substance in case No. 03-CF-165.

On January 18, 2005, defendant filed a motion to withdraw guilty plea and vacate sentence as to the guilty pleas he entered in case Nos. 03-CF-165and04-CF-84; and he filed a motion to reduce sentence as to each case.On May 11, 2005, he filed an amended motion to reconsider sentence; and on May 15, 2005, he filed an amended motion to withdraw guilty pleas.On July 19, 2006, the trial court denied the amended motion to withdraw guilty pleas.On November 27, 2006, defendant then filed a second amended motion to reconsider sentence; on January 8, 2007, the court denied it.These appeals, which this court consolidated, followed.

II.ANALYSIS

A.Is Anhydrous Ammonia a "Poisonous Gas" for Purposes of the Offense of Possession of a Deadly Substance?

In case No. 03-CF-171, defendant was charged with and convicted of possession of a deadly substance under section 20.5-6 of the Criminal Code of 1961(Code)(720 ILCS 5/20.5-6(West 2002)).This charge was severed for trial from charges of unlawful transportation of anhydrous ammonia, unlawful possession of a stolen vehicle, and unlawful possession of a vehicle with a removed vehicle identification number.

Section 20.5-6(a) provides as follows:

"(a) A person commits the offense of possession of a deadly substance when he or she possesses, manufactures[,] or transports any poisonous gas, deadly biological or chemical contaminant or agent, or radioactive substance either with the intent to use such gas, biological or chemical contaminant or agent, or radioactive substance to commit a felony or with the knowledge that another person intends to use such gas, biological or chemical contaminant or agent, or radioactive substance to commit a felony."720 ILCS 5/20.5-6(a)(West 2002).

This offense is a Class 1 felony.720 ILCS 5/20.5-6(b)(West 2002).

The proposition anhydrous ammonia is a poisonous gas for purposes of section 20.5-6 is an essential element of the State's case here.Defendant argues the evidence was not sufficient to prove him guilty beyond a reasonable doubt because anhydrous ammonia is not a "poisonous gas" within the meaning of section 20.5-6, that is, possession of a deadly substance.

How a statute is interpreted is a question of law reviewed de novo.In re Marriage of Rogers,213 Ill.2d 129, 135-36, 289 Ill.Dec. 610, 820 N.E.2d 386, 389-90(2004).In this case, the trial court was not specifically asked to interpret the statute on possession of a deadly substance as defendant's strategy at trial was to argue the State did not prove anhydrous ammonia was a deadly substance.

Defendant relies on People v. Qualls,365 Ill.App.3d 1015, 303 Ill.Dec. 580, 851 N.E.2d 767(2006), to support his argument.In Qualls, the Fifth District held anhydrous ammonia is not a "poisonous gas" for purposes of section 20.5-6 of the Code and reversed the defendant's conviction.Qualls,365 Ill.App.3d at 1021, 303 Ill.Dec. 580, 851 N.E.2d at 772.The State argues Qualls was wrongly decided and should not be followed.We disagree and find Qualls to be correctly decided.

In Qualls,the defendant was charged solely with possession of a deadly substance when his truck went in a ditch after the anhydrous ammonia he was transporting in a pitcher spilled while driving.Qualls,365 Ill.App.3d at 1017, 303 Ill.Dec. 580, 851 N.E.2d at 769.The defendant filed a motion to dismiss, arguing "`anhydrous ammonia was not intended by the legislature to be a deadly substance under the Possession of a Deadly Substance statute.'"Qualls,365 Ill.App.3d at 1018, 303 Ill.Dec. 580, 851 N.E.2d at 769.The trial court denied the motion and the case proceeded to a stipulated bench trial.Qualls,365 Ill.App.3d at 1018, 303 Ill.Dec. 580, 851 N.E.2d at 769.The trial court found the defendant guilty.He appealed, and the only issue on appeal was whether anhydrous ammonia is a "poisonous gas" as the term is used in section 20.5-6(a) of the Code.Qualls,365 Ill.App.3d at 1018, 303 Ill.Dec. 580, 851 N.E.2d at 770.

The defendant argued the term "poisonous gas" should be interpreted to mean gas designed to kill or injure or tending to kill or injure "in normal use," such as sarin gas or mustard gas.Qualls,365 Ill. App.3d at 1019, 303 Ill.Dec. 580, 851 N.E.2d at 770.He argued the term should not be read to include gases merely deadly or injurious "in particular unsafe circumstances," such as anhydrous ammonia or carbon monoxide.Qualls,365 Ill. App.3d at 1019, 303 Ill.Dec. 580, 851 N.E.2d at 770.The State argued the term should be broadly interpreted to mean any gas "capable of causing death or severe injury."Qualls,365 Ill.App.3d at 1019, 303 Ill.Dec. 580, 851 N.E.2d at 770.These are essentially the same arguments raised in this case.

As noted in Qualls,365 Ill.App.3d at 1019, 303 Ill.Dec. 580, 851 N.E.2d at 770, the primary objective in construing the meaning of a disputed statute is "to ascertain and give effect to the intent of the legislature."People v. Robinson,172 Ill.2d 452, 457, 217 Ill.Dec. 729, 667 N.E.2d 1305, 1307(1996).All rules of statutory construction are subordinate to this cardinal principle.In re...