People v. Foerster

• Decision Date: 25 July 2005
• Docket Number: No. 1-04-0749.,1-04-0749.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jason FOERSTER, Defendant-Appellant.
• Court: Illinois Supreme Court

Page 942

833 N.E.2d 942

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jason FOERSTER, Defendant-Appellant.

No. 1-04-0749.

Appellate Court of Illinois, First District, Fifth Division.

July 25, 2005.

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender (Joshua A. Tepfer, Assistant Appellate Defender, of counsel), for Appellant.

Richard A. Devine, State's Attorney, Cook County (Renee Goldfarb, Alan J. Spellberg, Sally L. Dilgart, Michael A. Kuczwara, Jr., of counsel), for Appellee.

Presiding Justice CAMPBELL delivered the opinion of the court:

Following a bench trial, defendant Jason Foerster was convicted of possession of a controlled substance and sentenced to two years in prison. On appeal, defendant contends that: (1) nothing in the record indicates that he knowingly and intelligently waived his constitutional right to confrontation before his trial counsel entered into a stipulation regarding the chain of custody and chemical composition of the recovered substances; (2) he was not properly admonished pursuant to Supreme Court Rule 605(a) (Official Reports Advance Sheet No. 21 (October 17, 2001) R. 605(a), eff. October 1, 2001); and (3) the compulsory extraction of his DNA pursuant to section 5-4-3 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4-3 (West 2002)) violated his right to be free from unreasonable searches and seizures. We affirm.

At trial, Officers Russell Bacius and Robert Arnolts testified that at about 9:30 p.m. on May 28, 2003, they were conducting a narcotics surveillance in the area of 4623 North Chester in Chicago. Officer Bacius testified that an unoccupied white Chevrolet vehicle was parked on Chester about 20 to 25 feet away from where the officers were conducting their surveillance. A Ford Escort with four occupants pulled up behind the Chevrolet. Maurice Green then exited the apartment building located at 4623 Chester and walked over to the Chevrolet. Jason Bono exited the Chevrolet, and Green then opened the driver's door of the Chevrolet and grabbed a gym bag inside the vehicle. Green placed the bag on top of the trunk, and Bono handed Green some money. Green then opened the bag and removed some small plastic bags which he handed to Bono. Officers Bacius and Arnolts then began to walk over to where Green and Bono were standing. As the officers approached, Green threw the bag into the Chevrolet. Officer Bacius then announced his office. Bono dropped from his hand three small clear plastic bags containing suspect crack cocaine. Officer Bacius placed Bono in custody and recovered the dropped items.

Officer Bacius further testified that he told the three other occupants of the Ford Escort not to move. Officers Bacius and Arnolts testified that they noticed defendant sitting in the Ford Escort with a cellular phone on his lap. Officer Arnolts ordered defendant to exit the vehicle. As defendant stepped out of the vehicle, the cellular phone that was on his lap slid off and so did a clear plastic bag containing a yellow rock-like substance. Officer Bacius testified that defendant was placed in custody and the item that slid off his lap was inventoried under number 10145663.

The parties entered a signed narcotics stipulation which provided, in relevant part:

"[A] proper chain of custody [was] maintained at all times. * * * The chemist's expert opinion within a reasonable degree of scientific certainty is the contents of the tested item was positive for the presence of cocaine."

At the close of the evidence, defendant was found guilty of possession of a controlled substance. Defendant filed a motion for a new trial, which the court denied and sentenced defendant to two years in prison.

On appeal, defendant first contends that nothing in the record indicates that he knowingly and intelligently waived his constitutional right to confrontation before his trial counsel entered into a stipulation regarding the chain of custody and chemical composition of the recovered substances.

This issue is currently pending before the Illinois Supreme Court in People v. Phillips, 352 Ill.App.3d 867, 288 Ill.Dec. 208, 817 N.E.2d 566 (2004), pet. for leave to appeal allowed, ___ Ill.2d ___, No. 99568 (February 24, 2005). Phillips was an appeal from the Third District, holding that the record must affirmatively establish that the defendant did not object to or dissent from his attorney's decision to enter a stipulation. Phillips, 352 Ill.App.3d at 871, 288 Ill.Dec. 208, 817 N.E.2d 566. However, in People v. Scott, 355 Ill.App.3d 741, 291 Ill.Dec. 726, 824 N.E.2d 302, 307 (2005), a different panel of the Third District indicated that its decision in Phillips was incorrect and based upon a misinterpretation of People v. Campbell, 208 Ill.2d 203, 212-13, 220-21, 280 Ill.Dec. 684, 802 N.E.2d 1205 (2003).

We believe that Scott sets forth the better position. In the present case, the stipulation did not state that the evidence was sufficient to convict defendant, and the State did not present its entire case through the stipulation. Campbell, 208 Ill.2d at 220-21, 280 Ill.Dec. 684, 802 N.E.2d 1205. Therefore, the record in the case at bar did not need to establish that defendant did not object to or dissent from his attorney's decision to stipulate to the chain of custody and chemical composition of the recovered substances. Further, the record did not need to show that defendant's attorney discussed the legal impact of the stipulation with him, or that his attorney told the court that there had been such a discussion and defendant did not object to the decision to stipulate. See Scott, 291 Ill.Dec. 726, 824 N.E.2d at 307; see also Campbell, 208 Ill.2d at 220-21, 280 Ill.Dec. 684, 802 N.E.2d 1205.

Next, defendant contends he was not properly admonished pursuant to Supreme Court Rule 605(a), and this cause should be remanded to the trial court for strict compliance with the rule. We review the trial court's compliance with supreme court rules de novo. People v. Breedlove, 213 Ill.2d 509, 512, 290 Ill.Dec. 602, 821 N.E.2d 1176 (2004); People v. Davis, 356 Ill.App.3d 725, 292 Ill.Dec. 558, 826 N.E.2d 994 (2005).

Rule 605(a) governs the admonishments a trial court must provide to a defendant when imposing a sentence. (Official Reports Advance Sheet No. 21 (October 17, 2001) R. 605(a), eff. October 1, 2001).

Defendant here argues that the trial court misadvised him that in order to appeal he must file a written motion asking the court for a new sentencing hearing or for judgment of innocence and, instead, should have admonished him that in order to appeal he must file a notice of appeal in the trial court. The court admonished defendant as follows:

"You have the right to appeal. In order to bring about such an appeal, you will [] have to file within the next 30 days, a written motion asking the Court to, indicating your legal basis for asking for a new sentence or a new sentencing hearing or for judgment of innocence. You can request the clerk to file this notice of appeal for you. You have a right to an attorney for such an appeal. If you cannot afford to hire an attorney or to purchase transcripts for such an appeal, they would be provided to you free of charge by the State of Illinois. If your motion to reconsider sentence was denied, then...