People v. Moss, 5-94-0227

CourtUnited States Appellate Court of Illinois
Citation274 Ill.App.3d 77,210 Ill.Dec. 949,654 N.E.2d 248
Docket NumberNo. 5-94-0227,5-94-0227
Parties, 210 Ill.Dec. 949 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Winifred L. MOSS, Defendant-Appellant.
Decision Date09 August 1995

Theodore A. Gottfried, State Appellate Defender, Office of the State Appellate Defender Third Judicial District, Springfield, Daniel M. Kirwan, Deputy Defender, Office of the State Appellate Defender, Fifth Judicial District, Mt. Vernon, and Brian D. Lewis, Panel Atty., Marion, for appellant.

Rod Wolf, State's Atty., Harrisburg, and Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, and Charles F. Mansfield, Staff Atty., State's Attys. Appellate Prosecutor, Springfield, for appellee.

Justice RARICK delivered the opinion of the court:

Defendant, Winifred Moss, was charged in the circuit court of Saline County with unlawful delivery of cocaine (count I) and unlawful possession of contraband (cocaine) in a penal institution (count II). At the time of the offense, defendant was on electronic home detention and living at his mother's house at 724 Beggs Street. Pursuant to a written electronic home detention agreement, defendant and his mother agreed that her home was an extension of a corrections facility. The alleged offenses took place in the driveway of Randy Moss, who lived in a mobile home at 712A Beggs Street.

At trial, the evidence revealed that an informant named Ginger Jeffers was sent to buy cocaine from defendant. Jeffers testified that she went to defendant's home, where she purchased two "rocks" of cocaine from defendant with money supplied by the police. Upon arriving, she saw Nicole Crawford and Robert Bryant. She testified that she met defendant in his driveway and asked to buy two "rocks," and defendant went into the trailer and came back out with the cocaine. Officer Philip Werkmeister testified that he arranged with Jeffers for her to attempt to purchase crack cocaine from Winifred Moss. He and officer Rob McConnell met Jeffers in a nearby cemetery, where he gave her $60 with which to purchase the cocaine. They thereupon drove to a point one block from the Winifred Moss residence. Approximately 10 minutes later, they observed Jeffers' vehicle and followed it back to the cemetery. Jeffers gave Werkmeister $10 and two bags of what was later determined to be crack cocaine. Nicole Crawford testified that on May 6, 1993, she was at the Winifred Moss residence where she saw a girl named Ginger in her car in the driveway of the Randy Moss residence. Robert Bryant testified that he observed the defendant at Herbie Moss's trailer handing something in a plastic bag to a "skinny black guy," but he did not know what it was. Randy Moss denied that Bryant had been in his trailer.

Both defendant and his mother had previously signed "Electronic Detention Host Agreements" (Agreement) wherein they agreed, inter alia, not to knowingly permit the unauthorized use of controlled substances in their residence and, most importantly, that their home was an extension of defendant's "assigned placement in a correctional facility."

Defendant was convicted on both counts.

On appeal, defendant argues first that the trial court erred in ruling that, as a matter of law, anyone on electronic detention through the Department of Corrections (Department) is in a penal institution. Specifically, the trial court ruled:

"[A] defendant who is under sentence to the Department of Corrections * * * and on the electronic detention program, as a matter of law[, is] within a penal institution for the purposes of this unlawful possession of contraband in a penal institution."

The trial court further clarified its ruling during the hearing on defendant's posttrial motion:

"[T]he Court's ruling is that if you are in a permissible place pursuant to that [electronic home detention] agreement then you are technically in a penal institution."

Section 31A-1.1(c)(1) of the Criminal Code of 1961 defines penal institution as:

"any penitentiary, State farm, reformatory, prison, jail, house of correction, police detention area, half-way house or other institution or place for the incarceration or custody of persons under sentence for offenses, awaiting trial or sentence for offenses, under arrest for an offense, a violation of probation, a violation of parole, or a violation of mandatory supervised release, or awaiting a bail setting, hearing or preliminary hearing * * *." (Emphasis added.) 720 ILCS 5/31A-1.1(c)(1) (West 1992).

Citing People ex rel. Gibson v. Cannon (1976), 65 Ill.2d 366, 2 Ill.Dec. 737, 357 N.E.2d 1180, defendant argues that a person on electronic detention is in constructive custody of, but not committed to, the Department. In Cannon, our supreme court held that a parolee was merely in constructive, rather than physical, custody of the Department and that section 5-8-4(f) of the Unified Code of Corrections (Code) did not apply to parolees. (Cannon, 65 Ill.2d at 371, 2 Ill.Dec. at 739, 357 N.E.2d at 1182.) Defendant contends that a person on electronic home detention is likewise in merely constructive custody and not committed to the Department. Defendant misreads Cannon. A careful reading of Cannon demonstrates that our supreme court held section 5-8-4(f) of the Code inapplicable to parolees not because they were not "committed" to the Department but because they were not "held," a term which the court said "connotes a state or degree of physical restraint" and was inconsistent with the parolee's status as a person released from confinement. (Cannon, 65 Ill.2d at 370, 2 Ill.Dec. at 739, 357 N.E.2d at 1182.) While the court held that a parolee was in constructive, rather than physical, custody, it did not hold that a parolee was not committed to the Department.

Further, the language of the Electronic Home Detention Law (Law) (730 ILCS 5/5-8A-1 et seq. (West 1992)) itself demonstrates that defendant was committed to the Department. Section 5-8A-4(H) of the Law provides that a participant therein shall be given notice "that violation of the order for home detention may subject the participant to prosecution for the crime of escape." (730 ILCS 5/5-8A-4(H) (West 1992).) Escape is defined as the "intentional and unauthorized absence of a committed person from the custody of the Department." (730 ILCS 5/3-1-2(i) (West 1992).) Having made persons on electronic detention subject to the offense of escape, it logically follows that the legislature intended such persons to fall within the classification of "committed persons."

Defendant is clearly a committed person, and the statute defines a "committed person" as one who has been judicially placed in the custody of the Department on the basis of delinquency or conviction. As noted above, a penal institution is defined as a place for the custody of parties under sentence for offenses. Defendant was in the custody of the Department, serving a sentence for burglary. The term "place," as used in the definition of a penal institution, denotes a specific physical location with defined boundaries. Defendant's residence clearly qualifies. Defendant points out, however, that the offense was not committed in his residence but in a neighbor's driveway. We nevertheless find that at the time the offense was committed, defendant was in a penal institution.

Section 5-8A-4(A) provides:

"[T]he participant shall remain within the interior premises or within the property boundaries of his or her residence at all times designated by the supervising authority. Such instances of approved absences from the home may include but are not limited to the following:

(1) working or employment approved by the court or traveling to or from approved employment;

(2) unemployed and seeking employment approved for the participant by the court;

(3) undergoing medical, psychiatric, mental health treatment, counseling, or other treatment programs approved for the participant by the court;

(4) attending an educational institution or a program approved for the participant by the court;

(5) attending a regularly scheduled religious service at a place of worship;

(6) participating in community work release or community service programs approved for the participant by the supervising authority; or

(7) for another compelling reasons consistent with the public interest, as approved by the supervising authority." 730 ILCS 5/5-8A-4(A) (West 1992).

Clem Campanella, the electronic detention program supervisor, testified as to how the system worked. A monitor is connected to a telephone in the participant's home. The participant has a transmitter strapped to his ankle which transmits a signal to the monitor. If the transmitter goes too far from the monitor, it can no longer pick up the transmitter's signal. When contact is broken, the monitor automatically alerts the monitoring service that the monitor is off. This restricts the participant to a circular area, the radius of which could vary, depending on the structure of the building, the geography, terrain, electronic equipment in the house, and various other factors. Obviously, there are places where the effective radius of the monitoring system will extend beyond the participant's property boundary and occasions where the...

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11 cases
  • People v. Bowens
    • United States
    • United States Appellate Court of Illinois
    • September 1, 1999
    ...when determining if a defendant's conduct represented a single physical act for purposes of King. See People v. Moss, 274 Ill.App.3d 77, 83, 210 Ill.Dec. 949, 654 N.E.2d 248, 252 (1995); People v. Zarate, 264 Ill. App.3d 667, 677, 202 Ill.Dec. 308, 637 N.E.2d 1044, 1051-52 (1994); People v.......
  • People v. Campa
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    • Illinois Supreme Court
    • December 1, 2005
    ... ...         At the hearing on the petition, defendant cited People v. Moss, 274 Ill.App.3d 77, 210 Ill.Dec. 949, 654 N.E.2d 248 (1995), as controlling authority. Pointing to the holding in Moss that a defendant on electronic home monitoring is in custody, defendant argued that he was likewise in custody. The State distinguished Moss, arguing that electronic home ... ...
  • People v. Sienkiewicz
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    • Illinois Supreme Court
    • December 4, 2003
    ...same location; and (6) the prosecutorial intent, as shown by the wording of the charging instruments. People v. Moss, 274 Ill. App.3d 77, 83, 210 Ill.Dec. 949, 654 N.E.2d 248 (1995). The appellate court first enunciated these factors in People v. Baity, 125 Ill.App.3d 50, 80 Ill.Dec. 510, 4......
  • People v. Horsman
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    • February 25, 2011
    ...from case law reinforce our conclusion that “imprisonment” as used in section 6–303(d–3) is ambiguous. In People v. Moss, 274 Ill.App.3d 77, 80, 210 Ill.Dec. 949, 654 N.E.2d 248 (1995), the court held that the defendant, who was serving a sentence for burglary and was released on electronic......
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