People v. Roberts, 2-01-0680.

• Decision Date: 21 April 2003
• Docket Number: No. 2-01-0680.,2-01-0680.
• Citation: 273 Ill.Dec. 191,788 N.E.2d 782,338 Ill. App.3d 245
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William G. ROBERTS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

788 N.E.2d 782

338 Ill. App.3d 245

273 Ill.Dec. 191

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William G. ROBERTS, Defendant-Appellant.

No. 2-01-0680.

Appellate Court of Illinois, Second District.

April 21, 2003.

G. Joseph Weller, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Elgin, Larry Wechter, Law Office of Larry Wechter (Court-appointed), Geneva, for William G. Roberts.

Paul A. Logli, Winnebago County State's Attorney, Rockford, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, John X. Breslin, Deputy Director, Robert M. Hansen, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Justice KAPALA delivered the opinion of the court:

Following a jury trial in the circuit court of Winnebago County, defendant, William G. Roberts, was convicted of one count of possession of a look-alike substance with the intent to deliver within 1,000 feet of public housing property (720 ILCS 570/407(b)(3) (West 2000)) and sentenced to 10 years and 10 months in prison. Additionally, he was ordered to pay $20 as a street value fine and $100 as a trauma center fine. Following the denial of his posttrial motions, defendant filed this timely appeal. For the following reasons, we affirm his conviction and sentence of 10 years and 10 months but reverse the imposition of the street value fine and the trauma center fine.

FACTS

The facts necessary to our disposition are as follows. Rockford police officer Jason Bailey testified that on December 7, 2000, he and his partner were patrolling a Rockford public housing project in plainclothes and an unmarked squad car. After observing defendant flagging down the officers, Officer Bailey stopped the unmarked car next to defendant.

Defendant leaned close to the driver's side window and asked the officers if they wanted some "work." While asking this question, defendant reached into his right jacket pocket. Officer Bailey explained that in the drug trade vernacular the term "work" means crack cocaine.

At that point, defendant observed the radio in the car and stated the officers must be the police. The officers exited the vehicle, and Officer Bailey asked if defendant had anything illegal on his person and if he could search defendant. Defendant, after stating he was "clean," agreed to the search. Officer Bailey explained at trial that "clean" meant defendant did not possess anything illegal such as drugs or weapons. Upon searching defendant, the officers discovered a plastic bag in the jacket pocket into which defendant had earlier reached. Defendant then volunteered that the bag contained a substance made of nail glue and pancake mix designed to resemble crack cocaine. The bag contained four individually wrapped baggies of a rock-like substance resembling crack cocaine. The officers immediately arrested defendant.

Officer Bailey performed a field test and determined the substance was not cocaine. Defendant, prior to the field test, again volunteered that the substance was not real cocaine. Following the test, defendant stated he intended to sell each rock for $5 to crack cocaine users because he had no job or income. He further admitted he was the person who made the substance contained in the baggies. Officer Bailey admitted that defendant had no other items in his possession such as a cell phone, a pager, currency, a customer list, or a weapon, which would commonly be possessed by a drug dealer.

Officer Bailey's partner corroborated Bailey's version of the events, including defendant's statement that the baggies contained fake cocaine and that defendant made the fake drugs to sell for $5 each. The parties stipulated that a lab analysis confirmed that the contents of the baggies contained no controlled substance. The undisputed evidence also established that the distance between where defendant was arrested and the public housing property was less than 1,000 feet.

Defendant, testifying in his own behalf, stated that he had purchased five baggies of a substance supposedly containing cocaine for a total of $25. When he smoked the contents of one of the baggies but was unable to get high, he concluded the substance was fake. Defendant further testified that after he discovered the substance was fake, he observed the officers' car, which he thought was the vehicle of the drug dealer who sold him the fake substance. He then flagged down the vehicle so that he could "get what [he] paid for." He admitted he flagged down the officers' vehicle because he thought it was occupied by the person who sold him the five baggies.

Defendant denied telling the officers he was "clean." He told them the baggies probably contained nail glue and pancake mix but he was unsure if the substance was fake. He denied stating that the reason he was going to sell the bags to drug dealers was because he needed the money. According to defendant, at the time he purchased the baggies he did not intend to sell any of the baggies but planned on smoking their contents. Officer Bailey, in rebuttal, testified that defendant never stated he was looking for the dealer who sold him the baggies.

The jury found defendant guilty of possession of a look-alike substance with intent to deliver within 1,000 feet of public housing property. Both defendant's counsel and defendant, pro se, filed posttrial motions. Neither of the posttrial motions raised any of the issues presented in this appeal. The trial court denied both posttrial motions, and defendant appealed.

DISCUSSION

Defendant's first contention is that section 407(b)(3) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/407(b)(3) (West 2000)), punishing possession with intent to deliver a look-alike substance more severely than the statute governing possession with intent to deliver actual controlled substances, violates due process under the Illinois Constitution. We begin by noting that we will consider this constitutional issue even though defendant did not raise it in a posttrial motion. See People v. Cochran, 323 Ill.App.3d 669, 676, 257 Ill.Dec. 529, 753 N.E.2d 1155 (2001), citing People v. Wagner, 89 Ill.2d 308, 311-12, 60 Ill.Dec. 470, 433 N.E.2d 267 (1982) (conviction under void unconstitutional statute may be attacked at any time).

In Cochran, the defendant challenged the constitutionality of both sections 404(b) and 407(b)(3) of the Act based on a denial of due process. The defendant there noted that a prior version of section 404(b) included a preamble which declared the statute's underlying rationales, that is, preventing overdoses and dampening the potential for greater profits inherent in the sale of look-alike substances. The defendant further pointed out that the amended statutes under which he was convicted lacked that preamble. The defendant reasoned that the absence of the preamble exposed the statutes underlying his conviction to a previous ruling of the supreme court nullifying an earlier version of section 404 which predated the addition of the preamble and its rationales. See Wagner, 89 Ill.2d at 313, 60 Ill.Dec. 470, 433 N.E.2d 267.

In Cochran, we held that section 404(b) of the Act was constitutional because, even though its present version does not contain the preamble language pertaining to the statute's dual rationales of preventing overdoses and greater profits, we believed that the present version should be presumed to reflect those two rationales. Cochran, 323 Ill.App.3d at 676,257 Ill.Dec. 529,753 N.E.2d 1155. Thus, we held that those rationales, endorsed by our supreme court in People v. Upton, 114 Ill.2d 362, 102 Ill.Dec. 842, 500 N.E.2d 943 (1986), "remain viable even though the legislature did not reenact the preamble when it amended section 404(b)." Cochran, 323 Ill.App.3d at 676,257 Ill.Dec. 529,753 N.E.2d 1155. We further rejected the defendant's argument as to section 407(b)(3) for similar reasons. Cochran, 323 Ill. App.3d at 678,257 Ill.Dec. 529, 753 N.E.2d 1155. We decline defendant's invitation to reconsider our decision in Cochran and continue to hold that the potential for increased penalties for the offense of possession with intent to deliver look-alike substances does not violate due process under the Illinois Constitution.

Alternatively, defendant contends, relying on Cochran, that section 404(b) is unconstitutional as applied to him. In that regard, he argues that the evidence in this case fails to demonstrate that the substance he possessed would cause harm or that he would receive any substantial profits from the sale of the substance.

In Cochran, the defendant raised a similar argument as defendant here by contending his conviction should be reversed on due process grounds because neither of the two rationales recognized in Upton applied to his case. See Cochran, 323 Ill.App.3d at 676, 257 Ill.Dec. 529, 753 N.E.2d 1155. In that regard, the defendant in Cochran asserted that, because the look-alike substance was "rice or some kind of grain" and there was no evidence that "ingestion of rice or grain would be harmful," the overdose rationale did not apply to his case. Cochran, 323 Ill.App.3d at 676, 257 Ill.Dec. 529, 753 N.E.2d 1155. As to the greater profit rationale, the defendant argued that, because he was merely trying to sell a look-alike substance that he had purchased to "recoup his losses," the profit rationale did not apply to him because he had no opportunity to realize an inflated profit. Cochran, 323 Ill.App.3d at 677, 257 Ill.Dec. 529, 753 N.E.2d 1155.

This court rejected both contentions in Cochran. In doing so, we stated that the evidence did not establish the composition of the look-alike substance; therefore, the facts in the case did not support the defendant's contention that the overdose rationale did not apply to his case. Cochran, 323 Ill.App.3d at 677, 257 Ill.Dec. 529, 753 N.E.2d 1155. Similarly, this court rejected the defendant's profit rationale argument, holding that the "factual...